volume 2, issue 4, december 2014 indian journal of legal...

Volume 2, Issue 4, December 2014

INDIAN JOURNAL OF LEGAL PHILOSOPHY

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© IJLP, December 2014, All Rights reserved.

Editorial Team

Editor-in- Chief

Shaik Mohammed Ismail

Managing Editor Shaik Mohammed Haroon

Editors

P. Bayola Kiran Delhi Chandana

Rashmi Josyula Kavya Nekkanti

Krishna Thej Yashwanth Kalepu

Associate Editors

Ayush Jaiswal Dhruthi Batchu

© Editor-in-Chief , IJLP - December 2014 Typeset and Printed in India

www.ijlp.in

IJLP, Indian Journal of Legal Philosophy (ISSN: 2347-4963) is a student edited, peer reviewed quarterly publication which focuses on all aspects of Law. IJLP aims to facilitate -students, teachers, scholars and others to write papers on various contemporary issues and current trends in law.

ISSN: 2347- 4963

Shaik Mohammed Ismail Editor-in-Chief

INDIAN JOURNAL OF LEGAL PHILOSOPHY Visakhapatnam, Andhra Pradesh – India, www.ijlp.in

Editorial ……..

Law grows and evolves with and also brings about development and necessary change in every walk of life. The objective of law must be

and indeed it is its progressiveness and must move in sync with needs

of the time. The new challenges which inevitably emerge must be

addressed through extensive research and dialogue. To quote Elie Wiesel, “There may be times when we are powerless to prevent

injustice, but there must never be a time when we fail to protest.”

Through the Indian Journal of Legal Philosophy, we aim to provide a platform for those in the legal fraternity and others interested

in the field to voice their opinions freely and openly. The rationale

behind having a peer reviewed journal with an open and broad

perspective is to encourage different ideologies and points of view not

only from those in the legal community, but also from the general

populous having an interest in legal issues. The articles in the journal

are from diverse fields of law and cover several relevant and

contemporary issues.

(Shaik Mohammed Ismail)

Volume 2 Issue 4 December 2014

C O N T E N T 1 Implication Regarding Climatic Change in India & Disaster-

Management Laws

Dr.Shailesh N Hadli

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2 Participation of Women in Politics a Tool of Women Empowerment

Dr. V.P. SINGH

14

3 Disposal of E-Waste: A Challenging Threat to Environment of India

Kumar Harsh; Dr.Pramod Kumar Singh & Sanju Kumari

30

4 States Control Over Land Use : Reconciling the Conflicting Needs

Dayana M.K

37

5 Contemporary Legal Developments & Transformations on Surrogacy Laws in India

Sonali Kusum

48

6 Fiduciary Theory of Jus Cogens - A Critical Study Mazharul Islam

59

7 The Concept of Village and The Constituent Assembly

Dr. L. Sriramadutam

68

8 Natural Law and Positive Law - A Comparative Study from Indian Perspective

Wasif Reza Molla

81

9 Policy Determination, Policy Execution and Policy Control: Unlearning the Philosophy behind the Indian Judicial Process

Rukma George

92

10 The Doctrine of Identification – As a Tool for Establishing Corporate Criminal Liability

Shreeparna Dutta

104

11 An Objective Analysis Into the Efficacy of the Use of Precedents in Dissecting Interpretation

Gautam Mohanty & Subhanshu Gupta

119

12 Clearing the Fog Around the Right to Privacy Guaranteed Under the Constitution

Adithya Rajeev & Parvathi S

131

13 Accountability of Judiciary Under Indian Constitution

M.Aravind Kumar

142

14 Right to Information and Private Schools: Judicial Dicta & Implications for Private Autonomy

Mimansa Ambastha

152

15 Removal of Director Conflict with the Principal of Natural Justice

Pallavi Agarwal

164

16 Punishment and the Criminal System: A Critical Analysis

Anurag Dasgupta

174

17 Challenges Concerning Dominance: The Indian Perspective

Ramanpreet Kaur Sandhawalia & Divyanshu Bhandari

187

18 Medical Negligence & Consumer Protection in India

M.Vijayendra Kumar

202

19 International Environmental Laws to Secure Sustainability

Miss Purnima Singh

210

20 Vitriolage in India- A Socio-Legal Perspective Aabid Ali Haider & Divya Kashyap

225

21 International Civil Aviation Organization’s Role in Disaster Planning, Preparedness & Response: A Fundamental Understanding of the International Scenario

Rahul Ranjan & Dhruv Patel

237

22 Appointment Of Auditors (Principles And Procedures) Based in Accordance with Companies Act, 2013 and The New Companies (Audit And Auditors) Rule, 2014

Sourav Mishra

246

23 Trial By Media- A Critical Analysis of Judicial Pronouncements

Jagjeet Vashishtha &Harsh Sharma

264

24 Performance of Contract-Joint Rights and Liabilities

Reddy Pawan Kumar

279

25 Sanction under Section 197 Crpc: An Indispensable Sin

Isha Sanghi

293

26 Khap Panchayats- Retrograding Avatar of the Moral Police

Aishwarya Tiwari & Chintan Nirala

303

27 Child Labour – The Indian Scenario

C.Ganesh Pandian

313

28 Comparative Advertising: A Comparative Study Between India and U.S.

Sagar A. Gurusahni

322

29 Independence of Judiciary from Media

Ebbani Aggarwal

332

30 Judicial Activism & Protection of Child Rights

C.Prabakar

344

INDIAN JOURNAL OF LEGAL PHILOSOPHY ISSN : 2347- 4963

VOLUME 2, ISSUE 4, DECEMBER 2014

IMPLICATION REGARDING CLIMATIC CHANGE IN INDIA & DISASTER- MANAGEMENT LAWS

Dr.Shailesh N Hadli*

Introduction

Climatic volatility is one among the major issues that our planet is facing in present era. Climate change and variability have become the primary environmental concern of the twenty-first century; the potential impacts and mitigation of climate change need to be analyzed within the context of sustainable development. Before couple of decades climate change was considered as an “Act of God” but this notion was removed with the first report of IPCC. Since climatic problems are interpreted in multiple contexts it is necessary to define certain basic terminologies associated with the climate change. This introductory fragment of the paper also discusses impacts of climate change and link between climatic irregularity and disaster management.

Key concept and definitions

Climate change, an alteration in the state of the climate that can be identified by changes in the mean and/or the variability of its properties, and that persists for an extended period. Climate change means a change in the state of the climate that can be identified (e.g., by using statistical tests) by changes in the mean and/or the variability of its properties and that persists for an extended period, typically decades or longer. Climate change may be due to natural internal processes or external forcing, or to persistent anthropogenic changes in the composition of the atmosphere or in land use1. UNFCCC defines climate change “a change which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and which is in addition to natural climate variability observed over

*Assistant Professor, RN Patel Ipcowala School of Law & Justice, VV Nagar, Anand, Gujarat 388120. Mob 7383742205 1 IPCC, 2007a: Climate Change 2007: Synthesis Report. Contribution of Working Groups I, II and III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change.

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comparable time periods”2. The term climate change and global warming are closely associated; Global Warming is a specific example of the broader term “Climate Change” and refers to the observed increase in the average temperature of the air near earth’s surface and oceans in recent decades3. Further climate and weather must not be considered as synonyms. The World Meteorological Organization (WMO) differentiates the terms in the following way: “At the simplest level the weather is what is happening to the atmosphere at any given time. Climate in a narrow sense is usually defined as the ‘average weather,’ or more rigorously, as the statistical description in terms of the mean and variability of relevant quantities over a period of time4”.

Impact and Adversities

Climate change is most serious threat that world is facing today5. Climate change is not only threat to global economy67 but to entire human existence8. The magnitude of climatic problem is undoubtedly high to the extent of mass destruction. The resent climatic studies of IPCC show following results:

Warming of the climate system is unequivocal, as is now evident from observations of increases in global average air and ocean temperatures, widespread melting of snow and ice, and rising global

2 Article 1, United Nations Framework Convention on Climate Change. 3 India, Ministry of Environment and Forest, Annual Report, 2012-13, p. 349 4 WMO, 2010: Understanding Climate. World Meteorological Organization, Geneva, Switzerland, www.wmo.int/pages/themes/climate/understanding_climate.php. 5 Cubasch, U., D. Wuebbles, D. Chen, M.C. Facchini, D. Frame, N. Mahowald, and J.-G. Winther, 2013: Introduction. In: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. 6 Nakicenovic, N. and R. Swart, Eds., 2000: Special Report on Emissions Scenarios. A Special Report of Working Group III of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge. 7 WRI (World Resources Institute), 2000: World Resources 2000-2001: People and Ecosystems: The Fraying Web of Life. World Resources Institute, Washington, District of Columbia. 8 IPCC , 2012b: Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation. Special Report of the Intergovernmental Panel on Climate Change by [ Field, C. B., V. Barros, T. F. Stocker, D. Qin, D. J. Dokken, K. L. Ebi, M. D. Mastrandrea, K. J. Mach, G.-K. Plattner, S. K. Allen, M. Tignor, and P. M. Midgley (Eds.)]. Cambridge University Press, Cambridge, United Kingdom.

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average sea level. Eleven of the last twelve years (1995–2006) rank among the 12 warmest years in the instrumental record of global surface temperature (since 1850). The updated 100-year linear trend (1906 to 2005) of 0.74°C [0.56°C to 0.92°C] is therefore larger than the corresponding trend for 1901 to 2000 given in the TAR of 0.6°C [0.4°C to 0.8°C].

Global average sea level rose at an average rate of 1.8 [1.3 to 2.3] mm per year over 1961 to 2003. The rate was faster over 1993 to 2003: about 3.1 [2.4 to 3.8] mm per year. The total 20th century rise is estimated to be 0.17 [0.12 to 0.22] m.

The effect of climate change is more serious in the developing countries as compared to developed countries. The worst impacts will fall on developing countries, in part because of their geographical location, in part because of weak coping capacities, and in part because of more vulnerable social, institutional, and physical infrastructures9. Vulnerability is defined generically in this report as the propensity or predisposition to be adversely affected. Such predisposition constitutes an internal characteristic of the affected element. In the field of disaster risk, this includes the characteristics of a person or group and their situation that influences their capacity to anticipate, cope with, resist, and recover from the adverse effects of physical events10. Climate change is also considered as one of the major barriers of sustainable development11 and Millennium Development Goals.

India is one of the most vulnerable nations in context of climate change. It is recently found that climate change can adversely affect India’s natural ecosystem which would certainly impair India’s

9 Bierbaum and others (2007). Confronting Climate Change: Avoiding the Unmanageable and Managing the Unavoidable, a new report prepared by the Scientific Expert Group Report on Climate Change and Sustainable Development for the United Nations Department of Economic and Social Affairs 10 Gaillard, J.C., 2010: Vulnerability, capacity, and resilience: Perspectives for climate and development policy. Journal of International Development. 11 IPCC, 2001a: Climate Change 2001: The Scientific Basis. Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change, J.T. Houghton, Y. Ding, CambridgeUniversity Press,Cambridge

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agriculture12, directly affecting 58% of population. Climate change can also have threatening effect on India’s food security, water security, fundamental rights, trade and business13.

Genesis of Climate change: Not an Act of God

Change in climate is a natural phenomenon14, conditioned to some certainty or predictability. Meanwhile, the present erratic climatic pattern is resulted due to human activities. The definition provided by UNFCCC leaves no uncertainty regarding the inception of the corresponding issue. Climate change is a serious and urgent issue. The Earth’s climate is changing, and the scientific consensus is not only that human activities have contributed to it significantly, but that the change is far more rapid and dangerous than thought earlier15. Global atmospheric concentrations of carbon dioxide, methane and nitrous oxide have increased markedly as a result of human activities since 1750 and now far exceed pre-industrial values determined from ice cores spanning many thousands of years. The global increases in carbon dioxide concentration are due primarily to fossil fuel use and land use change, while those of methane and nitrous oxide are primarily due to agriculture16. There is new and stronger evidence that most of the warming observed over the last 50 years is attributable to human activities. There is a longer and more scrutinized temperature record and new model estimates of variability. Reconstructions of climate data for the past 1,000 years indicate this warming was unusual

12 World Bank, 2009: World Development Report 2010: Development and Climate Change. World Bank, Washington, DC. 13 India, Ministry of Finance, Economic Survey, 2012-13, pp. 256-57. 14 IPCC, 1990: Climate Change: The IPCC Scientific Assessment [J. T. Houghton, G. J. Jenkins and J. J. Ephraums (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. 15Stern, N., and others (2006). The Economics of Climate Change. http://www.hm treasury.gov.uk/independent_reviews/stern_review_economics_climate_change/stern_review_report.cfm 16 IPCC , 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC). Cambridge University Press.

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and is unlikely to be entirely natural in origin17. The recent literatures on relevant issue make the fact that present erratic changes in climate are due to human activities. Thus, climate change and outcome of such must not be considered as an “Act of God”.

Forming link between climatic law and Disaster Management

The problem of climate change is multi-dimensional. Climate change is not the subject that can be addressed in isolation by one department; it requires active inter-departmental cooperation18. The climatic change is mainly responsible for most disasters. Further the geography of India is most susceptible to climate prone disasters. Floods, droughts, cyclones, earthquakes and landslides have been recurrent phenomena. Over 40 million hectares is prone to floods; about 8% of the total area is prone to cyclones and 68% of the area is susceptible to drought. In the decade 1990-2000, an average of about 4344 people lost their lives and about 30 million people were affected by disasters every year. The loss in terms of private, community and public assets has been astronomical. Thus, climate change and disaster management should be dealt in a single box.

Present stand of Climatic Laws in India

Climate change had received an unprecedented attention in recent times. The fundamental reason behind such transit can be series of climatic disasters that India had faced in recent couple of decades or International pressure to reduce carbon emission as a part of sustainable development. This part confers on India’s present position regarding to climatic law.

State liability under the doctrine of Parens Patriae

The concept of parens patriae is explained as “the right of the sovereign and imposes a duty on the sovereign, in public interest, to

17 IPCC , 2001: Climate Change 2001: The Scientific Basis. Contribution of Working Group I to the Third Assessment Report of the Intergovernmental Panel on Climate Change. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA. 18 Boer J D, Wardekkar J A, and Sluijs J P V. 2010. Frame-based guide to situated decision making on climate change. Global Environment Change 20:502–510.

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protect persons under disability who have no rightful protector.19” The doctrine of parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons and property non sui juris, such as minor, insane and incompetent persons. The doctrine of parens patriae meaning ‘father of the country’ was applied originally to the king and is used to designate the state referring to the sovereign power of guardianship over persons under disability. The courts in India have applied this doctrine in several cases. Therefore it is submitted that, under the doctrine of parens patriae also, the state is obliged to provide adequate relief and rehabilitation to the victims of climatic disaster20.

Rights of Indigenous People

It is the prime duty of the state to protect fundamental rights of citizens. Meanwhile, after Uttrakhand tragedy the main question raised by general public was “How far India can protect rights of people during disasters?21” The findings were miserable as the indigenous population of affected area which included men and women from small villages who were surviving from the earnings of pilgrimage were not given any priority. Under Indian constitution India is declared as “welfare state” and therefore it is mandatory for India to interpret legislations in context of welfare of citizens. After the Maneka Gandhi Case (1978), courts have expanded the scope of ‘life’ and ‘personal liberty’ under Article 21. The Supreme Court has also interpreted the words ‘procedure established by law’ to include both the procedural and substantive legal requirements of fairness, justness and reasonableness. Article 21, which guarantees the protection of life and personal liberty, is the repository of all important human rights. From this, the Supreme Court has deduced an affirmative obligation on the part of the state to preserve and protect human life.

19 West’s Encyclopedia of American Law, edition 2. 20 Jacob P. Alex. Disaster Management towards a legal framework (2006). 21 The Hindu, a Himalayan Tragedy. Updated on Jan 2, 2014.

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Disaster risk adaptation in context of India

Disaster risk adaption is one of the main climate mitigating factors22. These definitions modify the IPCC (2007c) definition that generically speaks of the “adjustment in natural and human systems in response to actual and expected climatic stimuli, such as to moderate harm or exploit beneficial opportunities”. Adaptations vary according to the system in which they occur, who undertakes them, the climatic stimuli that prompts them, and their timing, functions, forms, and effects. In unmanaged natural systems, adaptation is autonomous and reactive; it is the process by which species and ecosystems respond to changed conditions. This chapter focuses on adaptations consciously undertaken by humans, including those in economic sectors, managed ecosystems, resource use systems, settlements, communities, and regions. In human systems, adaptation is undertaken by private decision makers and by public agencies or governments. Meanwhile, developing nations face technology major problems regarding adaptation due to scarcity of resources and technology. Individual cultivator response to climate risk in India has long relied on a diverse mix of strategies, from land use to outside employment (sometimes requiring temporary migration) to reciprocal obligations for support; many of these strategies have been undermined by changes such as population pressure and government policy, without being fully replaced by others—illustrating the oft-remarked vulnerability of regions and populations in transition23.

India’s response to climatic

India’s carbon emission is very less in comparison to developed nations. India’s carbon dioxide emission is about 4% of earth’s total CO2 emission. Meanwhile the growing awareness regarding climatic

22 IPCC, 2001b: Climate Change 2001: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Third Assessment Report of the Intergovernmental Panel on Climate Change, J.J. McCarthy, O.F. Canziani, N.A. Leary, D.J.Dokken andK.S.White, Eds., CambridgeUniversity Press, Cambridge. 23 Gadgil, S., A.K.S. Huda, N.S. Johda, R.P. Singh, and S.M. Virmani, 1988: The effects of climatic variations on agriculture in dry tropical regions of India.

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change in India can be viewed from recent national activities24. At international level India was prepared to voluntarily “reduce the emissions intensity of [its] growth by 20 to 25 per cent in 2020 as compared to 2005”25. Commentators within India deplored India’s leaving the camp of developing countries and making concessions without asking for reciprocity26. At national level various governmental bodies were formed to deal with climatic problems. National Environment Policy, 2006 outlines essential elements of India’s response to Climate Change27. The Prime Minister, Dr. Manmohan Singh, has set up a High Level advisory group on climate change issues which include: Government Representatives and Non- Government Members. The Council coordinates National Action Plans for assessment, adaptation and mitigation of Climate Change28. The National Action Plan on Climate Change (NAPCC) coordinated by the Ministry of Environment and Forests is being implemented through the nodal Ministries in specific sectors/areas. The plan “identifies measures that promote our development objectives while also yielding co-benefits for addressing Climate Change effectively”. Climate Change Action Programme (CCAP) includes National Carbonaceous Aerosols Programme (NCAP), Long Term Ecological Observatories (LTEO), and Coordinated Studies on Climate Change for North East region (CSCCNE). The NCAP is a major activity involving multi-institutional and multi-agency study. Further many scientific and economical policies were also made in respective context.

Judicial interpretations

Climatic justice is the question of fundamental rights. Climatic law is not codified by Indian legislative system but the corresponding

24 op.cit, Annual Report, p. 349. 25 Ministry of External Affairs (2009b), Prime Minister’s Statement Prior to his Departure for Copenhagen, online: <www.meaindia.nic.in/speech/2009/12/17ss01.htm 26 Jayaraman, T. (2009), Will It Be a US Endgame at Copenhagen?, in: Economic and Political Weekly, 44, 50, 13–15. 27 Government of India (2007), National Action Plan on Climate Change, New Delhi. 28 Government of India (2006b), Integrated Energy Policy, Report of the Expert Committee, New Delhi.

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problem can ne interpreted in terms of Article 21 of Indian constitution and Disaster Management Act. In the B.J. Diwan case, the Gujarat High Court rejected the government’s argument that the court doesn’t have jurisdiction to adjudicate upon a case, which claims the enforcement of relief and rehabilitation. The court went on to hold that the right to relief and rehabilitation is a guaranteed right under Article 21 of the Constitution and the state is duty bound to ensure the same29. Indian judiciary followed the same application in various climatic calamities to ensure justice. Supreme Court had intervened in a matter related to the allegation of death due to drought, famine and starvation in Orissa. The intervention of Bombay High Court in the aftermath of the Latur earthquake provided minimal relief. The Bombay High Court passed directions about temporary shelter, drinking water, sanitation facilities, health services, public distribution systems and compensation for the handicapped and the dependents of the deceased in the Latur earthquake.

Indian perspective on climatic and disaster management law

The contemporary activities of various international organizations in terms of climate change brought a great transit in Indian approach towards corresponding issue. Thus, it is necessary to understand the roles of international bodies in enhancing India’s view towards climatic law. This section of paper critically analyses International bodies on climatic jurisprudence and their impact on Indian policy making. Further this section evaluates loopholes in Indian laws regarding climate change and Disaster-management. This section suggests various modifications in present laws to suffice present trend and future needs.

Need of Climatic Legislations

Climatic obligation on national and sub-national governing bodies requires following a specific modus operandi to for implementation. Unfortunately, there is no certain legislative

29 Diwan vs. State of Gujarat (2001).

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instrument which exclusively deals with climate change and related issues. Mitigation of climate change provides reinforcement to sustainable development30. In such context legal or regulatory requirements may have an effect. Many governments have adopted legislation aimed at encouraging the sustainable use of the natural environment, and some explicitly include reference to climate change. For example, Canada and some EU member states have begun to incorporate climate change in their environmental policies, particularly in the structures of required environmental impact assessments31. Meanwhile, it is mandatory for India to enact climatic law to regulate Carbon Emission Trade. The proximate drivers of environmental degradation are population growth, inappropriate technology and consumption choices, and poverty […] leading to development activities such as intensive agriculture pollution industry, and unplanned urbanization. However, these factors give rise to environmental degradation only through deeper causal linkages, in particular, institutional failures, resulting in lack of clarity or enforcement of rights of access and use of environmental resources, policies which provide disincentives for environmental conservation, market failures and governance constraints32. Thus considering above point it is highly recommended to have climatic law. Environmental regulations were not enforced strictly in India; of all the companies regulated by pollution boards, 50 percent did not comply with regulations33. In addition, only larger factories were monitored, even though medium and smaller units are responsible for 70 percent of industrial emissions. Sanctioning for flouting rules could has taken only two forms in India – the units are either put on trial (pollution boards cannot prosecute violations on their own), or closed. Further, bodies for monitoring

30 Clark, M.J., 2002: Dealing with uncertainty: adaptive approaches to sustainable river management. Aquat. Conserv. 31 EEA (European Environment Agency), 2006: Vulnerability and adaptation to climate change in Europe. Technical Report No. 7, European Environment Agency. 32 Government of India (2006a), National Environment Policy 2006, New Delhi. 33 World Bank (2008), India. Strengthening Institutions for Sustainable Growth. Country Environmental nalysis, South Asia Environment and Social Development Unit, Washington, D.C.: World Bank.

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environmental regulations are inadequately staffed and financed, their employees insufficiently trained and legally not well versed34. Therefore, it is submitted that India must enact Climatic legislation for strong administration and better policy implementation.

Reinforcing disaster management law with applicable modification to suffice present trend

The present disaster management litigation must be well equipped with all possible climatic issues and there affirmative solutions. Present disaster management must include the concept of Disaster risk management is defined as the processes for designing, implementing, and evaluating strategies, policies, and measures to improve the understanding of disaster risk, foster disaster risk reduction and transfer, and promote continuous improvement in disaster preparedness, response, and recovery practices, with the explicit purpose of increasing human security, well-being, quality of life, and sustainable development. Disaster risk management is concerned with both disaster and disaster risk of differing levels and intensities. In other words, it is not restricted to a ‘manual’ for the management of the risk or disasters associated with extreme events, but rather includes the conceptual framework that describes and anticipates intervention in the overall and diverse patterns, scales, and levels of interaction of exposure, hazard, and vulnerability that can lead to disaster35. This is principally attributed to increases in exposure and associated vulnerability. Further, it must also abide various institutes to spread real time data to citizens regarding climatic problems and awareness programs to facilitate Environmental Impact Assessment (EIA) forming a better path way for adaptation and effective response to climatic catastrophes. Such legislation must come with a certain penal clause rendering non-compliances punishable.

34 World Bank (2010), World Development Report 2010. Development and Climate Change, Washington, D.C.: World Bank. 35 UNISDR, 2009c: After Action Review: Second Session Global Platform for Disaster Risk Reduction. United Nations International Strategy for Disaster Reduction, Geneva, Switzerland.

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Conclusion

Climate change is no more a trivial issue. IPCC in their 3rd report specifically mentions that “Climate change will impede nations’ abilities to achieve sustainable development pathways as measured, for example, by long-term progress towards the Millennium Development Goals”. Over the next half-century, it is very likely that climate change will make it more difficult for nations to achieve the Millennium Development Goals for the middle of the century. It is very likely that climate change attributed with high confidence to anthropogenic sources, per se, will not be a significant extra impediment to nations reaching their 2015 Millennium Development Targets since many other obstacles with more immediate impacts stand in the way Climatic problem will not only damage our generation but it can render devastating effects on our future generation.

Although, our commitments are clear regarding the reduction of carbon emission, we cannot implement our policies until we have a certain framework regarding climatic problems. Such loophole would certainly create a rift which would impair our sustainable development and Disaster management. This would render worst effect on the weaker section of population leaving them helpless and broken. It is no where hidden that Uttrakhand tragedy was due to climate change. Uttrakhand incident not only showed that India don’t have effective disaster risk management but also cleared the fact that international climatic laws is helpless without national efforts. In efforts to save our “Big Blue Marble” we must not forget to protect our main interest. The present disaster management law must protect human rights from every possible climatic disaster. Nation must enact climatic legislation which can provide edge to policy implementation, resource management, sustainable development, public health, insurance and many other corresponding subjects.

To conclude with I would mention that “Mother nature can only suffice our needs, not our greed”. So it is our humble duty to make

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amendments for what we mangled up. Enacting climatic law and spreading awareness can do a great job to nature and likewise to humanity.

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PARTICIPATION OF WOMEN IN POLITICS A TOOL OF WOMEN EMPOWERMENT

Dr. V.P. SINGH*1

Every human being is required to lead a virtuous life, but in reality women which comprises of the half of the population is facing hardships and sufferings not only outside the house but within the four walls of the house. She is facing discrimination at phase of her life and getting the respected place in society. The irony lies in the fact that once she was worshipped and honoured as goddess but now she is raped and her dignity is robbed and she is exploited now and then, such is the position of the women in our country; from shakti she has become shaktiless. Nowdays, we devote considerable amount of time in debating and discussing how to empower the goddess of shakti. The issue of women empowerment has been increasingly entangled with the polemics of politics. Despite long history of women struggle women in India are the real dalits in terms of literacy, longevity, maternal mortality, female participation and sex ratio. Although national liberation movements ended the political control by colonial powers and introduced the principle of separation of legislative from judicial and punitive powers, women were not liberated from the rule of husbands, or fathers, in the household. Within the home men still retain consolidated and arbitrary powers to determine the rules, judge the performance, and punish their wives and children. Thus men have the capacity to - demand sexual relations at any time; prevent their wives from practicing contraception; determine how wives and daughters could and should spend their in domestic work, in education, leisure or cultural activities, and determine the terms on which they enter the public space for employment; exert punitive or corrective violence against women when they judge the rules infringed, and not be subject to legal retribution for this; use and dispose of wives’ earned and inherited property; and buy and sell wives/daughters, or dispose of them to meet debts or to compensate for insult by other males. Many of

* Assistant Professor, Faculty of Law, Banaras Hindu University, Varanasi

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these presumptions and behaviours are translated into relations with women in the outside community, the workplace and political spaces.2

Gender relations are skewed because of the existence of patriarchy. The subordination that women experience daily, regardless of the class we might belong to, takes various forms such as discrimination, disregard, insult, control, exploitation, oppression, violence within the family, at the place of work, and in society. The details may be different but the theme is the same. Normally the following areas of women’s lives and societies can be said to be under patriarchal control –Women’s productive or labour power; Women’s reproduction; Women’s sexuality; Women’s mobility; Property and other economic resources; and Social, cultural and political institutions.3

At the international as well as at national level women are struggling to break the shackles that bind them by fighting against the unequal distribution of power in the society but all in vain as the women and men enjoy different status in society; it is manmade, nature has very little to do with it. It is gender not sex which has determined that, (almost) everywhere, women as a group are considered inferior to men. They face systemic violence at the hands of men and society; and they have little decision – making power in social, economic, and political institutions.4 But in reality it is quite difficult to establish what is natural and what is socially constructed, because as soon as child is born families and society begin the process of gendering. In our society the birth of a son is celebrated, the birth of a daughter is bemoaned; sons are showered with love, respect, better food, and better health care. Boys are encouraged to be tough and outgoing; girls are encouraged to be demure and home bound. There’s nothing in a girls’ body which stops her from wearing shorts, or climbing trees or riding bicycles, and there is nothing in a boy’s body which stops him from

2 . See Ashworth Georgina, Gendered: An Agenda for Change, Gender in Development Monograph Series (New York: UNDP, 1996) 3 . See Bhasin Kamla, What is Patriarchy? ( New Delhi, Kali for Women, 2003). 4 . Ibid

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playing with dolls, looking after younger siblings or helping with or cooking or cleaning the house. All these differences are gender differences and they are created by society. Proof of the fact, that gender is cultural and social attribute rather than a natural one, is that it keeps changing over time in different places and among different social groups. For example, a middle class girl may be confined to the home or school while a tribal girl may roam in the jungles freely, taking the animals for grazing, or climbing trees for fruits, leaves or branches. They are both girls but they develop very different capabilities, aspirations and dreams, in-spite of the fact that their bodies are same5. Today the fact is that women’s exploitation is a reality and gender justice a fragile myth. No social order in history has extended, distorted and used the natural difference between the sexes as brutally and systematically as ours.6

If we trace the genesis of the Indian Women’s Liberation Movement, it goes back to the 19th century. In this period male social reformers took up the issues pertaining to women and provided the basis for the establishment of women’s organization. This movement got momentum when women in large number came forward and participated in the freedom struggle. In the 19th century this issues which drew attention of the social reformers were, sati; ill-treatment of widows and widow marriage; child marriage and education to women. In post independence period considerable number of women’s organization came into existence challenging patriarchal structure of society and involved themselves in fighting against the evil practices perpetrated on women’s in the society. Though in India, number of organizations are working and working hard to uplift the status of women, but still the liberation movement relating to women has to go a long way to achieve gender justice and gender equality.

Before independence the social reform movements raised the issues relating to women such as sati, child marriage, widow 5 . Ibid, p.4 6 . Von Werlhof Claudia, “The Proletarian is Dead: Long Live the Housewife”, in Maria Mies, Women: The Last Colony ( New Delhi, Kali for Women, 1988), p.104

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remarriage, polygamy, property rights of women and education to women. Raja Ram Mohun Roy condemned sati pratha, polygamy while Ishawar Chandra Vidya Sagar is well known for his campaign against ban on widow remarriage. The social reformer such as Raja ram Mohun Roy, Ishwar Chandra Vidya Sagar, M.G. Ranade, and Mahatma Phule did yeomen service as they raised their voice against the unjust evil practices and were of the view that by educating women and enacting legislations gender justice and gender quality can be achieved.

Though, many of the social reformers were working for the emancipation of women during that period yet the result were not as rewarding as the women were not directly and actively participating. Meanwhile, women too turned up and raised their voice against the ill treatment and suffering and soon women’s organization came into existence. The National Conference was established in the year 1887 during the third National Conference which provided a platform for the discussion on social issues; the Bharat Mahila Parishad was the women’s wing of this conference. This conference made women come out of their homes, gave them opportunity to share their thoughts with other women, got involved in philanthropic work, and encouraged them to take an interest in public affairs and thus broaden their spectrum. Moreover, it gave them the maturity of administering an organization. In the year 1910, Sarla Devi Chaugharni, daughter of Swarna Kumari Devi established the Bharat Stree Mandal with the aim of uniting women of all castes, creeds, and classes…on the basis of their common interest in the moral and material development of the women of India.7 Bharat Stree Mandal allowed only women to be its member, but this organization live was very less.

During freedom struggle, the main focus was on the two issues – one the political rights for women and the second were reforms in personal laws. In the year 1917, Women’s Indian Association was founded by the three Irish women theosophists (Annie Besant,

7 . Bagal, J.C., “Sarala Devi Chaudhurani”, Sahitya Sadhak Charitwala, no99, Bangiya Sahitya Parisishad, (1964), p.24

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Margaret Cousins and Dorithy Jinarajadasa); they were cooperated by Malati Ratwardhan, Ammu Swaminathan, and Mrs. Dadabhoy. This organization was the first women organization in that era which had the perspicuous aim of assuring voting rights for the Indian women. A aide-memoire signed by twenty three women from various part of the country, demanding voting rights for women on the basis of equivalent qualification as of men which would authorize them to have their opinion in political matters was submitted to Montague and Chelmsford. It also stated other claims such as education, training in skill work, participation in local self government, social welfare, etc.8

In 1927, All India Women’s Conference was established, which proved crucial event in women’s march towards gender justice and equality. This conference was established at the initiative of Margaret Cousins to take up issues of women’s education9. The first session of this conference was held in Pune and was great success. It is evident from the fact that women form every corner of the country irrespective of their caste, creed, religion and community attended and participated in this conference. At the outset, All India Women’s Conference was concerned with the issue of education as according to its view to education is the first step towards achieving the aim of empowering women but certainly they realize that women are not coming out of their houses to get themselves educated in school because of various social customs prevailing at that particular period of time such as purdah system, child marriage, etc., consequently this organization also worked to reform personal laws so that these social evils which were the root cause of the miserable conditions of the women.

Women’s organization not only worked for women’s political, social and economic rights but they also contributed in India’s freedom struggle. They became more prominent with the coming of Mahatma

8 . See, Cousins, Margaret, We Two Together, (1950). 9 . See, Basu Aparna & Ray Bharti, Women’s Struggle: A History of All India Women Conference, 1927-2002, (2002)

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Gandhi on the Indian political scene10. Appraising women’s enthusiastic participation in both areas that is in empowering themselves and their contribution in freedom struggle, Indian National Congress at the Karachi session in 1930, passed the resolution on Fundamental Rights and gave equal rights to women. In the year 1938, the Indian National Congress constituted a National Planning Committee under the Chairmanship of Pundit Jawaharlal Nehru; one of the sub-committees under the National Planning Committee set up was on “Women’s Role in a Planned Economy” in which many prominent women’s organization and women congress leaders were members. This sub-committee worked on different important issues and gave some radical recommendations.11 .

In order to ameliorate the condition of women in India Legislature enacted the large volume of enactments and many of these legislations were enacted in colonial period. The Constitution of India which is regarded as the supreme law of the land too gives special protection to women.12

The Indian Judicial System has independently and effectively intervened on the issue of women emancipation.13 For instance, in C.B.

10 . See, Kaur Man Mohan, Role of Women in the Freedom Movement -1857-1947, (1969). See also, BAsu Aparna, “Role of Women in the Freedom Movement”, (ed.) B.R. Nanda, Indian Women form Purdah to Modernity, (1976) 11 . See, Basu Aparna, Role of Mridula sarabhai: Rebel with a Cause, (1996) 12 . Article 14 expresses that the State shall not deny to any person the equality before the law and equal protection of laws with in the territory of India. Article 15(1) prohibits the State to discriminate against any citizen on the grounds only of religion, race, caste, sex, and place of birth or any of them. Article 15(3) permits the State to make special provisions for women and children. Article 16 provides that there shall be equality of opportunity for all citizens and they shall not be discriminated on the basis of religion, race, caste and sex. Article 39(a) of the Constitution provides that the state in particular direct its policy towards securing that citizen, men and women equally, have the right to an adequate means of livelihood. Article 39(e) of the Constitution provides that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength. Article 51(A)(e) of the Constitution provides that it will be the duty of every citizen to renounce practices derogatory to the dignity of women. 13 . See, Air India v Nergesh Meerza, AIR 1981 SC 1829; (1981) 4 SCC 335; Pratibha Rani v Suraj Kumar, AIR 1985 SC 628; Gita Hariharan v Reserve Bank of India AIR 1999 SC 1149; (1999) 2 SCC 228; Vishaka and others v State of Rajasthan, AIR 1997 SC 3011; (1997) 6 SCC 241; Apparel Export Promotion Council v A.K. Chopra, (1999) 1 SCC 759;

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Muthamma v Union of India14 the Supreme Court made it clear that, we do not mean to universalize or dogmatise that men and women are equal in all occupation and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel selectivity. But save where the differentiation is demonstrated, the rule of equality must govern. Apart from these cases there are many other cases in which the Apex Court had given the judgments, helping to give a dignified status to the women, for example Madhu Kishwar v State of Bihar15, Gaurav Jain v Union of India16, Delhi Domestic Working Women’s Forum v Union of India17, Bodhisathwa Gautam v Subhra Chakraborty18.

Changing and transforming the present in-egalitarian system of gender relationships needs certain pre-requisites and the most important among them is leadership in the society. It is therefore, necessary for women to be in the corridors of power to negotiate a better deal for themselves, if they need to influence policy decisions they need to show their presence in all the sectors of the society and more particularly in political arena19. Empowerment of women in all spheres, in particular the political sphere is crucial for their overall advancement and to achieve the goals of equality, development and peace.

Women’s political empowerment is basically based on three basic principles: the equality between women and men, women’s rights to the overall development of their potential, and women’s right to self representation and self determination.20 As per the Jakarta

14. AIR 1979 SC 1868; (1979) 4 SCC 260. 15 . AIR 1996 SC 1864; (1996) 5 SCC 125 16 . AIR 1990 SC 292; 1990 Supp SCC 709 17 . (1995) 1 SCC 14; AIR 1996 SC 922 18 . AIR 1996 SC 722; (1996) 1 SCC 777 19 . See, Delharup Drude, Women, Quotas and Politics, (Routledge Publication, London, 2006) 20 . see, Suchinmayee Rachna, Gender, Human Rights and Environment, (Atlantic Publications, New Delhi, 2008)

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Declaration21, “empowerment of women is not only an equity consideration, it is also a necessary precondition for sustainable for economic and social development. Involvement of women in political arena and indecision making roles is an important tool for empowerment as well as monitoring standards of political performance.” The application of the philosophical underpinnings of the Jakarta Declaration is vital and necessary, as in the states where women have achieved near equal representation such as in the Scandinavian countries, they have begun to alter, transform and change the very nature of politics.22

Undoubtedly, women are invisible in the political sphere though they constitute half of the population of the world. Under-representation or invisibility of women in decision making process can be stated as a root cause of deprivation of their rights, as a consequence thereof it leads to an unequal distribution of resources, neglect of their interests, needs, perspectives and priorities and no say in policy making. Their voices fall on deaf ears, which are unheard and mostly ignored which needs to be taken care of and they need to come out their shell and participate actively, as it has been rightly and vehemently insisted by Alida Brill, “Without our own voices being heard inside the government arenas and halls of public policy and debate, we are without the right of accountability – basic entitlement of those who are governed.” Hence it’s a right time for them to show their presence in corridors of decision making halls.23Moreover it is rightly said that “Women’s place is in the house; that is why they should be in both houses of Parliament.”24

21 . See, Jakarta Declaration and Plan of Action for the Advancement of Women in Asia and the Pacific adopted by the Second Asian and Pacific Ministerial Conference on Women in Development, held at Jakarta from 7 to 14 June 1994 22 . See, Suchinmayee Rachna, Gender, Human Rights and Environment, (Atlantic Publications, New Delhi, 2008) 23 . Brill, Alida, A Rising Public Voice: Womwn in Politics Worldwide, (The Feminist Press, New York, 1995) 24 . See, Bhasin Kamla, Understanding Gender, ( New Delhi, Kali for Women, 2005)

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In India, the argument relating to women’s political equality first emerged as a political issue during the national movement in which the women were active participants. As early as 1917, Indian women raised the issue of representation in politics, which at that time meant a demand for universal franchise.25 By 1929 women had the right to vote on the basis of wifehood, property and education.26 Under the Government of India Act, 1935, all women over the age of twenty one could vote provided they fulfill the condition of property and education.27 Post independence women continued to play a significant role in less conventional political activities such as environmental movement, anti-alcohol movement, peace movement and even revolutionary activities, which equally affect power relationships as they have the capacity to influence the state28. The Constitution of India which came into existence in the year 1950 granted universal adult franchise to all its citizens. In-spite of these developments political arena proved to be very inhospitable and hostile terrain for women and continues to be the male dominated into which the admission of women is sternly constrained.

Women continues to remain invisible and marginalized in decision making bodies which leads to lack of feminist perception in political decision making. It was only with the setting up of the Committee on the Status of Women in India (CSWI, September, 1971) that the demand for greater representation of women in political institutions in India was taken up in a systematic way. The CSWI report29, suggested the establishment of Statutory Women’s Panchayats at the village level; reservation of seats in municipalities; constitution 25 . See, Mary E. John, Politics of Quotoas and Women’s Reservation Bill in India, retrieved at www.cwds.ac.in/Politics%20of%20quotas%20and%20WRB-MJ-Ch.8.pdf on 5 September 2014; See also, Sinha Niroj, “Women’s Participati on in National Freedom Struggle”, in Niroj Sinha (ed), Women in Indian Politics, (Gyan Publishing House, New Delhi, 2000) pp.71 -72. 26 . Ibid 27 . Ibid 28 . Sinha Niroj, “Women’s Participati on in National Freedom Struggle”, in Niroj Sinha (ed), Women in Indian Politics, (Gyan Publishing House, New Delhi, 2000) pp.71 -72. 29 . See, CSWI Report, “Towards Equality”, 1974

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of permanent committees in municipalities to initiate supervise programmes for women’s welfare and development and that the political party should adopt a definite policy regarding the percentage of women’s candidates.

The process of reservation was initiated during 1980’s. The entire issue took on a political hue as it become a debatable point whether a inception of reservation at the stage of panchayats and urban local bodies was honestly meant to provide larger representation to women or was a publicity measure aiming to create a women’s constituency at a time when the political parties needed to resurrect its image. The 73rd and 74th Amendments adding Articles 243, 243A to 243D and Articles 243P to 243ZG to the Constitution of India, in 1993, which provided for thirty three percent reservation for women in panchayats and urban local bodies30. These amendments, as a policy of positive action, served as most important breakthrough towards ensuring women’s equal right to entry and increased participation in political power structures. Women became considerably visible in local government and politics. These local level institutions provide a critical link between the power structure and citizen. According to Article 243D(3), “not less than one-third, (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes) of the total number of seats to be filled up by direct election in every Panchayat, shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. Article 243T(3)31 of the Constitution provides similar provisions for reservation of seats for women in direct election in the government.

30 . “Baseline Report on Women and Political Participation in India”, Prepared by NIAS, et.al and Co-ordinated by IWRAW, ASIA Pacific, Advanced unedited version, pp. 8, accessed at www.IWRAW - ap.org/aboutus/pdf/FPwomen_and_pol_pax.pdf. 31 . Article 243T(3) states that (3) Not less than one third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality

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There are also provisions in the State enactment, by virtue of the constitutional mandate, to reserve the office of Chairperson and the Presidents in certain Municipal Corporations and Municipalities, Zila Panchayats and Janpad Panchayats for women. It must be not be forgotten that all human beings are born equal and the division of bifurcation by the society between man and woman is the craftsmanship of male chauvinism. It has to be borne in mind that in the absence of equality of gender, human rights remain in an inaccessible realm. In most of the nations women are ascribed a secondary role. The secondary role has to be metamorphosed to the primary one to bring woman at the equal stratum. To achieve so, a different outlook in law has to be perceived. The perceptual shift is absolutely essential, in a way mandatory. For this reason, various provisions have been engrafted in the Constitution to confer some special and equal rights on women.32 Presently, it is essential to sit in a time machine and penetrate to the past. In T. Sudhakar Reddy v Government of Andhra Pradesh33, the court opined that the participation of women in cooperative societies is in the interest and benefit of the economic development of the country. In Government of Andhra Pradesh v P.B. Vijaya Kumar34, the legislation made by the State of Andhra Pradesh providing 30% reservation of seats for women in local bodies and in educational institutions was held valid by the Court and the power conferred upon the State under Article 15(3) is so wide which would cover the powers to make the special legal provisions for women in respect of employment or education. This exclusive power is an integral part of Article 15(3) and thereby, does not override Article 16 of the Constitution. In Rakesh Kumar Gupta v State of U.P.

32 . “Women empowerment and gender justice” by Hon’ble Mr. Justice Dipak Misra, Judge, Supreme Court of India on 15.06.2013 at Tamil Nadu State Judicial Academy during the Special Training Programme for all District Judges and Chief Judicial Magistrates, retrieved at http://www.hcmadras.tn.nic.in/jacademy/Article/Women%20Empowerment%20and%20Gender%20Justice Dipak%20Mishra.pdf, on 23rd August 2014 33 . 1993 Supp. (4) SCC 439

34 . AIR 1995 SC 1648

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35 , the Court while concurring with the view taken by the High Court of Allahabad in respect of reservation of 50% passed in favour of female candidate has opined thus: -

“The Division Bench took the view that Article 15(3) of the Constitutional enables the State Government to make special provision for women and children notwithstanding the prohibition contained in Article 15(1). Particularly viewed in the background of the fact that a large number of young girls below the age of 10 years were taught in the primary school and recognizing that it would be preferable that such young girls are taught by women, the reservation of 50% of the posts in favour of the female candidates was held to be justified. The classification made was justified and cannot be styled as arbitrary or liable to be hit by the Article 14.”

In Ashok Kumar Malpani36 the High Court, observed:-

“The legislation, in our considered opinion, is a real deep inroad into encouraging the participation of women in the decision making process at the ground level of democracy. Women in India are required to participate more in a democratic set-up especially in the ground democratic polity. Not for nothing, it has been said "educate a man and you educate an individual; educate a woman and you educate a family". The colossal complaint made by the learned counsel for the petitioners that if women come into the arena of the decision making process, it will be amthema to the administrative set-up as the bureaucrats shall take over the administration in view of the inadequacies of women, in our considered opinion, is a premature thinking based on a priori notions and beyond the scope of constitutional tolerance. Democracy is a basic feature of our Constitution and it has to develop from the ground reality level. The participation of socially and educationally 35 . AIR 2005 SC 2540 36 . AIR 2010 MP 64 as cited in “Women empowerment and gender justice” by Hon’ble Mr. Justice Dipak Misra, Judge, Supreme Court of India on 15.06.2013 at Tamil Nadu State Judicial Academy during the Special Training Programme for all District Judges and Chief Judicial Magistrates, retrieved at http://www.hcmadras.tn.nic.in/jacademy/Article/Women%20Empowerment%20and%20Gender%20Justice Dipak%20Mishra.pdf, on 23rd August 2014

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backward classes and women could really nurture and foster democracy in the country. Be it noted, though the issue of gender justice has been gaining ground in many nations and in many an area for some centuries and the traditional view of gender injustice has been given quite a quietus and treated as an event of bygone days, yet the malady still remains and deserved to be remedied. It would not be inappropriate to state here that if the dynamics of women reservation are understood in proper perspective, it would be quite clear that the number of women representatives at various layers of democratic setup is really quite low. It would not be inapposite to state that women have entered into the Indian Panchayat Raj Institutions by virtue of the Constitutional Amendment but their active participation in the decision making process in actuality remains at abysmal level. It is because their interest in the democratic setup of election has still not been accentuated for the simon pure reason that they have to negotiate and wrestle with the powerful members of the society. The submission of the learned counsel for the petitioners is that women are contesting in the election is of utmost significance and that would irrefragably exposit that they are conscious and there is no justification to marginalise the equality clause. We are of the view that participation in the election and losing the same can never be equated with the decision making process. One can only be a party to the decision making process when one is on the floor of the House as a representative and that is how the recognition of decision making process can be conferred on women. As the affidavit filed by the State would show their success in the election process is extremely low, we are disposed to think, the reservation, an act of special affirmation and a protective discrimination is a warrant which has been done by the State Legislature in its wisdom. Therefore, the submission that such reservation is not necessary and, in fact, does tantamount to reverse reservation do not deserve acceptance. It cannot be totally ostracised from the compartment of equality that unless law assists women in an accentuated manner, the basic tenet of the concept of equality would not be achieved and women will be put in the category of non-achievers.

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In a democracy where Rule of Law governs, the democractic polity it can only be advanced in a cultivated society. It is absolutely imperative to have the help of women where they are given certain rights. The truth is self-evident and that is how the fathers of the Constitution had perceived it.”

The High Court eventually ruled that Article 243T does not put a ceiling by using the terms 'not less than 1/3rd'. In fact, it prescribes for the minimum reservation but does not create any kind of impediment on the part of the State Legislature to enhance the percentage of reservation for women and that the stand of the petitioners to the effect that if the reservation of seats for women upto 50% is sustained, it will usher in bad governance as the bureaucratic setup would take up the entire policy making decision is totally baseless and, in fact, is absolutely premature.

Taking these developments into account which provided entry to women at grass root level political arena, the demand gathered momentum and the question of quotas came up again in the middle of 1990s. This time the focus was on women in Parliament. Initially, most political parties agreed to bring in thirty three percent reservation for women in Parliament and State Legislatures and in order to catch the attention of women voters, the election manifestos of almost all the parties echoed its demand of women’s reservation before every election. On several occasions the bill is introduced, it is stalled each time, a proof of the ‘brotherhood’ or ‘the old boys’ network’ which prevails irrespective of the differences of parties, class, caste or religion. When the bill addressing this issue was/is introduced in Parliament, several parties and groups raised objections. The objections focused around two main issues: one, the issues of overlapping quotas for women in general and those for women of the lower caste and, two, the issue of elitism37.

37 . Narayana Jayaprakash, Sheth Dhirubai, Yadav Yogendra, Keshwar Madhu, “ Enhancing Women’s Representation in Legislatures. An Alternative to the Governme nt Bill for Women’s Reservation”, Manushi, No.116, 2000, pp. 7.

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It is argued that women elected on the basis of quotas would not be true representatives of women. Most women’s groups felt that the caste issue was troublesome one for women. Also, many felt uncomfortable about giving special privileges to elite and influential women by ensuring seats for them in Parliament. It is also opined and argued that women do not essentially stand for other women’s interest. There is also the common apprehension that reservations for women may go the way for those for the Schedule Castes and Schedule Tribes, benefit the elite class women and have no effect on the patriarchal structure. On the other hand it is argued that women’s admission will alter and transform the structure of present day politics and bring women’s values, preferences and perspective into the political arena. Reservations it is felt are needed in order to break the hold of the patriarchal structure. Political representation it is felt is the first step towards genuine empowerment of women. The experience at the grass root level clearly validates that women, given the opportunities and a level playing field can lead the nation.38

Very few women have been successful in subverting the boundaries of gender and in operating in a very aggressive male dominated sphere. The obstacles in access to politics are reflected in their nominal presence in Parliament. A handful of women do manage to contest elections and even fewer manage to win. The representation of women in the Lok Sabha has basically remained stagnant. The members has, no doubt, increased from twenty two in the first Lok Sabha to sixty in the fifteenth Lok Sabha but this representation is less than fifteen percent of the total strength of the Lok Sabha39. Moreover, it falls far short of thirty three percent, the critical mass of women required for meaningful decision-making strength, notwithstanding the promised thirty three percent reservations to women by all political parties in their election manifestos.

CONCLUSION

38 . Ibid 39 . Source: www.parlimentofindia.nic.in

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It is however, significant and vital that increased representation of women may not necessarily lead to improved representation of women’s various interest. Women’s parliamentarians, not unlike their male counterparts too may want at the confluence of power and influence, and may take no notice of women’s interests and problems. Though some women leaders are dynamic in the political system, it does not easily decipher into enhanced depiction of women’s various interests. These women leaders have demonstrated that they can perpetuate patriarchy but they do not seem to have been in general concerned to give greater representation to other women within their own organization or in the political process generally. Though, political participation is necessary to empower the women but that political participation should not be to change the structure of the society but to work for the advancement and development of women.

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DISPOSAL OF E-WASTE: A CHALLENGING THREAT TO ENVIRONMENT OF INDIA

Kumar Harsh*

Dr.Pramod Kumar Singh**

Sanju Kumari***1

Introduction

E-waste and environment pollution is a global problem. The United Nation Suggests that global e-waste is set to exceed 40 million tons per year. There are estimated 9.2 million computer is use is Australia with further 2.1 million computer be added annually. [1] E-Waste is emerging as a major problem in India also and likely to become a major environmental risk by 2015. There is no mechanism available so far to collect transport, dismantle and dispose of the e-wastes. No scientifically designed facilities exist for safe dismantling and disposal. There is also lack of institutional mechanism to track and monitor the collection, Transportation, disposal and do to the inventory. The term “E-Waste” refers to the ‘end-of-life’ or “disposed electrical or electronic products and peripherals.” These include computers, cell phones, fax machines, photo-copiers, Television and other similar products. The electronic industry association has predicted that e-waste will increase by 11times by 2012. Apart from Europe and the U.S., China and Japan have regulated e-waste disposal scheme, whereas Thailand is in the process of doing so.

A study sponsored by Union Ministry of Environment and Forest in 2005 has reported that Indian products generate nearly 20270.6 tons of e-waste every year.2 Major cities such as Mumbai, Delhi,

*Final Year B.Tech. (ETC), M.B.A., Kalinga Institute of Industrial Technology (KIIT) Bhubaneshwar (Orrisa), India **Ph.D, L.L.B.; Professor, Veer Kunwar Singh University, Ara, Bihar, India, E-Mail Author available at:[email protected]; Mob. No- +91 9122391115 ***M.A., Ph.d; Assitt Professor, A.B.R. College, Sasaram, Bihar, India 2 The Times of India; September 22;2007

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Banglore, Chennai, Hyderabad, Greater Mumbai, Pune, Pimpri-chindwad and Navi Mumbai are producing 11,000 tones, 9,000 tones, 8,000 tones, 6,000 tones, 11,0170 tones, 2,253 tones, 1032 tones and 646 tons of E-waste respectively. Besides the state of Maharastra, Andhra Pradesh, Tamilnadu, Uttar Pradesh, West Bengal, Delhi, Karnatka, Jugrat, Madhya Pradesh and Punjab are the major producer of e-waste in our country.

Currently only two cities in the country i.e. Delhi and Banglore have waste management system but their efficiency is yet under evolution. Mumbai has no system to manage the e-waste so far. E-Waste are stored on the dumping ground, where rag pickers handle it to remove previous metals like gold, copper and aluminium etc. The extraction is carried out both in crudes and unrefined conditions, as reported by a Delhi based NGO as reported by The Energy and Resources Institute (TERI). Huge quantities of e-waste emerging from the electrical and electronic equipment are being generated every year due to the disposal of computers. According to an estimate, the total number of obsolete computers is originating mainly from government officers, business houses, industrial unit and households in India is about20 lakhs per year. Usually, personal computer (PC) goes obsolete in two years. In additions, manufactures and assemblers also produce an estimated 1,200 tons of electronic scraps people prefer to buy a new computer than upgrade old ones due to changing technology and attractive offers from manufactures.

Due to lack of appropriate legislation regarding e-waste, it mostly ends up in land-fills or water bodies and party is recycled in unhygienic conditions. Foreign countries also export huge quality of e-waste in the form of reusable components. Most countries are phasing out their harmful chemicals from electronic items as per ‘Europen Union’s Reduction of Harmful Substances’ (ROHS) Regulation. The regulation bans the use of lead, mercury, cadmium, chromium and brominates flame retardants. India has merely to follow that regulation but it is not happening due to lack of interest on the part of legislation and also awareness among general public.

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There is an urgent need of scientifically designed dismantling facilities with proven technology. Government should take initiative to ensure availability of raw materials initially needed for any dismantling facility. Dumping of e-waste should be banned in landfill listen and open lands. E-waste should be regularly tracked and monitored in major cities likes Mumbai, Pune, Pimpri-chinchwad etc.

Toxic and Hazardous substances.

E-waste contains over 1000 different substances and many of these substances are toxic and create serious pollution on disposal. Major toxic substances among them are: Lead, Cadmium, Polychlorinated biphenyls (PCBs) and Mercury. The content of lead are usually found in monitor cathode ray- tubes (CRTs) , LCDs, solders, printed circuit boards, lead- acid batteries. Compounds are also found in stabilizers, Polyvinyl Chloride (PVC) cables and other products.3

Cadmium in metal form is found in switches and solder joints, while other compounds are in rechargeable batteries, voltage stabilizers’, older PVC cables and old CRTs. Polychlorinated biphenyl (PCBs) are found widely used in insulating fluids for electrical transformers and capacitors.

Mercury is abundantly found in LCD lights, thermostats, sensors, relays, switches, medical equipment, lamps, mobile Phones and batteries. Use of mercury may increase as flat panel displays are replacing the CRTs.

Effect of Toxic substances

These toxic substances cause serious effects on human health and environment. ‘Lead’ accumulates in body through repeated exposure and has irreversible effects on nervous system particularly in children. Cadmium exposure causes damage to kidneys and bone structure. ‘Cadmium’ and its compounds are known human carcinogens. PBCs cause several adverse effects such as suppression of

3 Ibid

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the immune system of human body. Liver damage, cancer promotion, damage to nervous system, behavioural changes and damage to both male and female reproductive system. Mercury causes damage to various organs, including brain and kidneys. Most of the developing fotuss are highly susceptible to such toxic elements.

Unsafe disposal of e-waste are causing serious threat to environment. Throwing e-waste into land-fills allows toxins to seep into ground waters. Incinerators emit toxic air pollutants, including dioxins. As the industrial units of recycling computers are earn marginal profits, these unit cannot afford to invest for environment and workers health.

Industries can reduce wastes by controlling materials used in the manufacturing process. An effective system should be developed to review the purchase of material regularly. Before purchasing materials steps can be taken to minimising the use of check for hazardous constituents. Change can also be made to the production process to reduce quantity of waste materials.

Hazardous portions of waste can also be separated from non- hazardous portions. This can reduce the volume and cost of disposing of dangerous e- wastes. The process of segregation in many cases involves a simple and economical technique for waste reduction. ‘E-Parisara’, an eco friendly re-cyclining unit in Bangalore, makes full use of e- waste. This plant is the India’s first scientific e- wastes recycling unit, which aims to reduce pollution and land-fill waste and recover valuable metals, e.g. plastics, glass etc. from the wastes in an eco-friendly manner.

‘Gold’ goes to Garbage

E-waste not only causes harm to the environment but a huge quality of precious metal, such as ‘gold’, also goes to garbage along with it. In Germany alone, about two crores forty lakhs mobiles televisions etc. are thrown into dust-bin and there electronic wastes accompany about half tons of gold with them.

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Germany has prohibited throwing electronic wastes into the garbage. The Govt of Germany is planning to recycle e-wastes so that the problem of disposal of e-waste could be solved. Germany is rapidly attempting to improve its economy, by extracting ‘gold’ from electronic wastes. Experts of environment are rendering assistance to the process. The experts of Britain have also suggested that the electronic equipments should be designed in the manner that they could be recycled easily. A research centres at Hemburg extracts about 3.5 tons of ‘gold’ every year from garbage and thus earns about 11 crores dollars annually4.

Similarly research centre at Unikore in South Africa and another research centre situated in Belgium are also extracting about 6 tonnes of gold every year from electronic wastes.5 May other countries are also planning to extract ‘gold’ from electronic wastes in order to sustain the economic crisis. Various companies are attempting to design their electronic equipments in the manner that it could be recycled easily.

Enactments on Environment Protection

The provision of ‘The Environment (Protection) Act, 1986’ provides for the protection and improvement of environment and for matters connected therewith. Its objective is to ensure prevention of hazards to human being and other living creature, plants and property of nature. The resolution of United Nations Conference on the Human Environment held in Stockholm in June, 1972 guides for environments protection. The Chemical Accident (Emergency, Planning Preparedness and Response) Rules, have been enacted to deal with an accident ocured while handling any hazardous chemical resulting expose to death or injury to a person.

The National Environment Tribunal Act, 1995 was enacted to provides for strict liability for handling any hazards substance and for

4 Hindustan ; March 30, 2009 5 www.greenliving.lovetoknow.com (Last Accessed on 12-09-2014)

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the establishment of a National Environment Tribunal for effective and expeditious disposal of cases arising from such accident, with a view to giving relief and compensation for damage to person, property and environment and for matters connected therewith or incidental thereto. ‘The Prevention of Cruelty to Animals Act, 1960’ is to prevent the infliction of unnecessary pain or suffering on animal and for the purpose to aments the law relating to the prevention of cruelty to animals. ‘The Wild Bird and Animals (Protection) Act, 1912 has been enacted to make better provision for the protection and preservation of certain wild bird and animals. These enactments however are not adequate enough to deal with environment pollution caused by E-wastes.

Recommendations

A scientifically designed dismantling plant with proved technology should be set up at every major cities.

Government should render assistance to ensure availability of raw materials to all the dismantling units.

E-waste should be tacked and monitored regularly in every metropolitan city including Mumbai, Pune, Pimpari-Chinchwad, Delhi, Chennai etc.

Appropriate law should be enacted to regulate the uses and disposal of e-waste.

E-waste should recycled and precious metals such as gold etc. should be separated.

References :-

1. Panday, B.N. : Bio diverting, conservation, Environmental Pollution and Ecology; (2003 APH Publishing Corporation, Delhi)

2. K.R. Nayar : Ecology & health; (1998, APH Publishing Corporation, Delhi)

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3. Roy, Dilip : Environment Management with Indian Experience; (1998, APH Publishing Corporation, Delhi)

4. Gupta, S.P.Das : Environment Issues for The Twenty First Century; (2003, Mittal Publication, New Delhi)

5. Patil, R.B : Environment in IIndian Society; (2009, Mittal Publication, New Delhi)

6. Sunkar Panda: Environment & Ecology; (2008, Vrinda Publication, Delhi)

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STATES CONTROL OVER LAND USE : RECONCILING THE CONFLICTING NEEDS

Dayana M.K*

Introduction

Theoretically speaking property has been looked upon as an extension of the individuals personality1. In other words property is a means to satisfy the needs of the individual. This is necessary to maintain the stability that is expected through the property. Otherwise it will result in uncontrollable changes in the society. The individuals will be in collision with one another. This is for the each ones bid to promote his security and stability. Otherwise this would be injurious to the society. Public harm will ensue from private acts. Thus to reconcile the needs of the individual with societal needs what is a possible framework for property relations? What is the position of land as property apart from other property rights, because of its prime importance? What is the solution in this era of increased state controls over the land?

Land2 is universally accepted basis for the production of wealth. Considered from the stand point of ownership and its use rights over the land were of prime importance. Two parallel practises were found in this respect. They were absolute state ownership and on the other hand private or individual ownership 3 . The latter refers here the

* Assistanat Professor of Law, Government Law College, Thrissur 1 R.Noyes, The Institution Of Property, A.Kocoureh, Jural Relations, (2nd Edn.) p.334 2 “At common law, the term “land” when used in relation to a particular parcel meant the surface of the Earth, the soil beneath the surface to the centre of the Earth and the column of air above the surface. It included all things growing on or affixed to the soil, such as trees, crops and buildings. It also included all the minerals in the soil excepting gold and silver, which at law belonged to the Crown as royal metals” (Hallmann 1994, 9.1). Baalman, John, Outline of Law in Australia , edited by G A Flick, The Law Book Company Australia. 4th edition 1979 Burke, J 1976, Osborn’s Concise Law Dictionary, Sweet and Maxwell London. Collins English Dictionary, Collins Dictionary of the English Language (2001), Wm. Collins Publishers Pty. Ltd. Sydney Australia. 1979, 3 Public finance in ancient India, K.R.Sarkar

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private ownership in its entirety. This covers the right to sale, gift and mortgage. Another common feature was limited ownership of the tiller over the land or over the use of land4 . To reconcile the harm of absolute private ownership the theorists5 say that land is to be held by the individual for the “common good” of the society. Thus the holding acquires the characteristics of “public interest”. Within the frame work of this theory individual is allowed to hold some property to satisfy his needs. How much is to be allowed to satisfy the needs is qualified by the phrase that it would depend on “all attending fact” at that particular time.

The fundamentals of land ownership date back to the very roots of nation. Matters relating to possession and ownership of land are well recognized in historical records. Indeed, the territorial control of land has been a fundamental issue in the rise and fall of empires throughout history. This has been the cause of a great number of the world’s wars since civilisation began.

In the centuries BC, the importance of land ownership was focussed on arable lands used for productive agriculture. Even in those times there were issues associated with occupation and boundaries. There are evidences of state actions to separate the land of the state from that of private persons, because private land owners had slowly expanded their boundaries into public lands6.

4 Marshall, P.JLaurence Freedman, Paul Hayes and Robert O'Neill, ed. War, Strategy, and International Politics: Essays in Honour of Sir Michael Howard. Oxford: Clarendon Press,1992, pp. 57–74. ISBN 9780198222927. Refer also Mill, James; Wilson, Horace Hayman, The history of British India, Volume 5, 1858 London: OCLC 3019507. 5 Hegel, Philosophy of Right, pp.51-55, See also Hegel “Metaphysical Basis of Property” Rational Basis of Legal Institutions, The Modern Legal Philosophy series, New York, Vol. XIV p.201. Locke John, Two Treatises of Government., Cambridge Texts in the History of Political Thought. Ed. Peter Laslett. CUP: Cambridge, 1997, pp.285-287 6 In 173 BC Lucius Postumius Albinus, a statesman of the Roman Republic, was sent to Campania (a region in Southern Italy) reference from Lucius Postumius Albinus (Consul 173 BC) wiki 2011

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Biblical references to the Land of Israel, and its boundaries, can be found in various books7. In fact, the boundaries of the Middle Eastern States have changed regularly throughout history.

In India the above mentioned divergent practices relating to ownership of land were followed and statutes were framed governing the relation between the individual and the state. State is the ultimate owner of the land in its domain. The absolute or limited rights of enjoyment and ownership were granted to certain classes who satisfied the needs of the state8. State also held the property under its direct control and was engaged in various trades and production. Thus it is clear that there existed a mixed economy in India based on the ownership and production from land.

Land Use Controls by The State: Analysis

There were various modes of controls exercised by the state over the individual owners. But all these were directed to common goal of societal needs. Some of them were state controls for the protection of the rights of the tenants against the landlords. There were positive and negative rules concerning the user of land. There were also expropriation for community purpose. Rights were also given to public utilities to acquire easements. They were drainage, telephone poles, electric distribution systems and where it is necessary to transmit high voltages on steel towers. Sometimes this leads to the conflict between the preservation of amnesties of the landscapes and the cheap electricity. Another control is breaking up of large estates to small. Also the taxes imposed on the owners for the use of land is another type of control exercised by the state. Thus the state could exercise myriad and varied varieties of controls over the land use. But all these were directed towards the protection of public interest. ancient land use 7 Genesis 15; Exodus 23; Numbers 34; and Ezekiel 47 (Land of Israel wiki 2012) 8 They were the affluent classes in the society and they were called Jenmies. Certain government servants were assigned with lands apart from the wades received by them. These lands wer inalienable by these servants. van Hattem, Peter 1997, Demystifying Native Title, Murdoch University Electronic Journal of Law, Perth Western Australia, viewed 4 February 2012 http://www.murdoch.edu.au/elaw/issues/v4n3/vanh43.txt

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restrictions as stated above were mainly to protect the public health, safety, morals and general welfare of society. Hence land use regulations always involves a balance and often conflicts both between private and public property rights and among private rights itself. The questions to be answered in this context are, How far the restrictions imposed on land use is feasible? What is the most acceptable mechanism to be evolved for this purpose? What are the most relevant concerns to be satisfied for the maintenance of maximum happiness of maximum number of people without doing much harm to the resource base of the individual countries? Therefore the satisfaction of the concept of “sustainable development” in all realms of life specially with reference to land use became the need of the hour.

Various theories of property 9 argue for the protection of individual property rights. But these are subject to the public interest. But during this creation and transformation of private ownership over land it was put under the rule of law. Thus the state as well as the arbitrary power exercised by the private owners was put under the rule of law. The real question before the modern world is how far the rule of law could reconcile the private property rights enjoyed by the owner with the land use controls exercised by the state over their rights.

According to Locke political power is the power that every man in the state of nature possess but which is given over to the society that they form. It is entrusted to the government set up to create an established and known set of laws to arbitrate in disputes and preserve the life and property of its members. Locke’s vision is of minimal state interference whose justification can only be that of consent. The state must not possess arbitrary, absolute powers over the lives and property of the civilians. Yet its mandate must seek the public good and be democratic applying the majority rule.

9 Labour theory, personality theory, private property as the creation of the state after the long struggle between state and the society, the functional theory which caste a duty on the owner that he serves a social function…… For further reference read H Rashdall, Property its Duties and Rights, p.68

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Even as a strong supporter of private property Locke explains that in the state of nature , everything is commonly owned, but god gave man senses and reason to use for his preservation and reproduction that which he removes from the common10.

According to him land is the chief matter of property. A man who appropriates and cultivates land does not lessen its but increases the common stock of mankind. The reason for this claim is that one acre of enclosed land yields support of human life than an acre of equal richness’ lying waste in the common. From this Locke draws somewhat specious conclusion that a man who encloses and cultivates ten acres may truly be said to give ninety acres to mankind. As well as in justifying the appropriation of land in terms of mixing ones labour with it , Locke also seeks to justify its appropriation on the ground that doing so serves to advance the common good in maximising the utility of land. This is a reason Pufendorf too asserts in favour of private ownership of land.

Locke’s second Treatise of Government “of property” consist of theory of appropriation11, labour theory of value. In this he explains that during the first ages of the world the state of nature prevailed. Both land and natural products of the soil were available in excess of men’s needs. This may be called the age of abundance. Such condition prevailed in some part of the world. For the rest the age of abundance had come to an end when money had been introduced and communities had been formed. The following period may be called age of scarcity. Locke’s theory of appropriation in the age of abundance is his account of origin of private property.

In the account of Grotious and Pufendorf the origin of private property started from the tenet that God at creation had given the earth with all plants and animals to mankind12. This was the reason why men could own anything. The donation was to all men in common. 10 J.R.Milton, Lockes moral, political and Legal Philosophy, Ashgate Publications Ltd, Dartmouth, England, 1999 p.284 11 Supra note 5 12 Genesis I 29-30 and IX 2

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To begin with people lived in the state of communism. But after a time this was found inconvenient. People then agreed to divide certain things and tracts of land, leaving the rest free to occupation. In this way private right of property, dominium was introduced

According to Grotius, during the era before the introduction of dominium it was permitted for everybody to take from the common such things as were needed for the support of life. What a man took for his use and could consume became his own. Pufendorf disagreed on this point. It would be incuria against all others to take anything from the common without their consent. A general agreement allowing the appropriation of things required for the support of his life must therefore have been concluded. From another point of view it was also necessary. He said that people at every time had made a compact to the effect that each was entitled to collect as much of the fruits of the earth as was needed for his existence. The dominium was introduced in a limited extent. The substance of the thing remained common property. The fruits became the property of those who collected them. Thus there was a mixture of private and common property during the first era.

Industrial revolution and technological development which took place in the later centuries brought in drastic changes to the life style pursued by the communities or individuals13. This in turn led to the rethinking of property relations. Most important change was the change of community holding to the individual14. Along with this the states power also underwent a number of changes. The concept of State as “Leviathan” which was created solely for the protection of life and liberty of individual15 changed to the concept of welfare state. Along with this the functions of the state also became more complex. Everyone expected the state to be more powerful than the Leviathan in the state of nature 16 . Thus protection of property acquired more

13 R S Bhalla , The Institution of property, p.64

14 id at p.90 15 property." Encyclopædia Britannica. 2010. Encyclopædia Britannica Online. 03 Dec. 2010 http://www.britannica.com/EBchecked/topic/479008/property 16 Thomas Hobbes, Leviathan, Oxford University Press, 1929, p.230.

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individual colours than social. As the powers of state increased the duty of the state to ensure the social interest at par with individual interest made the state to make more and more controls over the individualistic property rights. It continued through centuries and still exists. The extent of controls exerted by every state depends on the political philosophy followed by the concerned state. This can be gathered from the basic law of the land17. Property is of course an economic asset. But only a secure property right provides a sense of identity and belonging that goes far beyond and underpins the values of democracy and human freedom. Historically, however, land rights evolved to give incentives for maintaining soil fertility. But making land-related investments and managing natural resources sustainable are the creation of modern state. Therefore, property rights are well managed in modern economies.

During industrial revolution property began to be recognised in terms of the economic value18. This brought in changes in the mental attitude of man also. He became greedy and began to amaze wealth for luxury and the concept of property lost its original notion. The original notion of property was in tune with the nature. Man had respect and love for the nature and the resources19. From there onwards another notion of property began to attract significance ie. the legal concept of property as including the ownership and its component elements, like exclusiveness, possession and thing. It became an independent institution free from the communal or societal control.

Some theorist like Hegal argues for protection of individual property rights and says that some amount of property is essential for

17 For every recognized territory is having a recognized constitution and that will specify the property relations recognized and enforced by the state. eg. Constitution of India art.31 18 David E Dowell, Benefit of Minimal Land Use Regulations In Developing Countries, Cato Journal, Vol. 12, No. 2, 1992. 19 The original notion of institution of property was: property as an expression of self to control and use to fulfil the needs of individual got completely changed. Greek philosopher Aristotle observed “It would be ideal; for property ought to be generally and in the main private, but common in one respect ie. in use. The renowned natural law theorist, Grotious relying on Justinian observed that private property originated in a kind of agreement among men to respect the right of occupations at the time of agreement.

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the development of personality20 . He says that it is the control of property which makes a person free. He is an exponent of private property. He classified the gradual development of community holding of property to individual. He also says that community should give each members opportunity to toil, within his powers, acquire such property as is necessary for the true self realization21. What is that extent of true self realization is not made clear by him. It can ordinarily be the attribute the societal control or states control for the protection of social interest.

Land Use Controls in India

Indian administration was complex one due to invasion of various cultures. Therefore the land use controls varied from time to time according to the needs of society. In India land tenure the relationships between the land holder and the State. The absolute ownership of land rests with the Government. Government gives proprietary rights to individuals or communities. Thus, a land owner, is the proprietor of that land and he has to pay revenue for that22. In India the concept of proprietary right in land gets its origin from Manu’s Occupation Theory 23 . It is the counter part of the Roman Doctrine of Occupation. According to them in order to convert the cultivator of the land to the owner, permission of the state is not needed.

Under Hindu period the land was considered to be the property of society. King had only the right to protect and do well to the community interest. The state was entitled to the tax. During this period the cultivated land was not considered as common land. But the waste land was considered to be common. The right of the first person who makes the beneficial use of the land was recognised in many cases

20 H. Rasdall, Property Its Duties and Rights, p.68 21 Dias, Jurisprudence, Butterworths, London,5th edn. 1985 pp.274-275 22 Naresh Chandra Sen Gupta, Evolution of Law,1962, p.85 23 Manusmriti, IX-44

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decided by the courts24. Cultivation of land was compulsory and non cultivation would result in punishment also. Various schools expounded the idea of non alienability of land when it was occupied by the members collectively. During those times social status of the individual was to be assessed on the basis of relationship with the land. Later Gandhiji said that all land belons to Gopal. Where is then the boundary line? Man is the maker of the same and he can unmake it. Gopal here means the God. In modern terms it is the state ie. People. Therefore it is for the state to determine where to draw the line relating to the land use.

Apart from this common law regulations exerted by British on our legal system also prevailed Common Law as always tried to curb the abnormal use of lands to protect the neighbours interests25 over the land. But the most notable thing under these development was that the concept of sovereign immunity was available to the government. So no claims could be raised against the government’s actions. Ownership implies the right to exclusive enjoyment of a thing. It can be either “absolute” (the right of free and exclusive enjoyment. It includes the right to use, alter, dispose of or destroy the thing owned. The other one is restricted ie. ownership limited to some extent. It is the situation with land since it cannot be destroyed. Ownership is always subject to the rule that a person must use their property as not to injure their neighbour26. An owner in fee simple is entitled to use it in any manner they please, subject only to27 their obligations towards neighbours and the public; any condition which may have been imposed in the Crown grant; obligations entered into by express agreement with others; and restrictions and qualifications imposed by legislation correct it.

24 Thakurani Dasi V. Bisweswar Mukherji (1865) 3 W.R. 29 B.L.R. Sup. Vol 202, Secretary of State V. Vira Rajan (1886) I.L.R. 9 Mad. 175, Secretary of State V. Ashtamrthi, (1890) L. L.R 13 Mad.89. 25 Rylands v. Fletcher, Mayor of Brad ford v. Pickles Development of easementary rights etc. shows that common law always tried to control the unreasonable interference with the peaceful enjoyment of neighbours property rights. 26 Burke 1976, p. 243 27 Baalman 1979, p. 98

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Constitutional scheme relating to land

The strained property relations was necessarily to be looked into at the time of Independence. Independant India envisaged an egalitarian 28 society. The framers of the Constitution took into consideration the conflicting interest involved and took a balanced approach29 . During the constitutional debates there were two sided argument for the type of philosophy to be followed in India regarding the property. Giving due weight to the individual interest in the property, they considered property as a fundamental right. At the same time they also gave due consideration to the needs of society and the ‘equal distribution of wealth’ concept was incorporated as directive principles of state policy. This was a quite balanced approach30. They visualised a society in which every citizen should be the owner of some property not only as a means of sustenance but also as a zone of security from tyranny and economic oppression and they put that right above the vote of transient majority. They enacted Article 39 and enjoined upon the state to break up the concentration of property in the hands of the few and its distribution among all.

Conclusion

During the framing of constitution two conflicting arguments presented by framers was just balanced by the statement of Pundit Jawaharlal Nehru. He spelt out the policy to be followed, ”if we have to take away the individual property, we have to see that fair and equitable compensation to be given. But when we consider equity we always have to remember that the equity does not apply to the individual but to the community. No individual can override ultimately the rights of the community at large. No community should injure and

28 It is a trend of thought that favours equality for all people. Arneson Richard, "Egalitarianism", The Stanford Encyclopedia of Philosophy (2002.) Web: <http://plato.stanford.edu/entries/egalitarianism 29 Susanne Hoeber, Rudolph (1963). "The New Courage: An Essay on Gandhi's Psychology". World Politics 16 (1): 98–117. JSTOR 2009253, and also see Paul Gillen; Devleena Ghosh (2007). Colonialism and Modernity. UNSW Press. p. 130 30 K K Mathew, 1978, “Basic Structure and Fundamental Right to Property”, 2 SCC pp 65.

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invade the rights of the individual unless it be for the most urgent and important reasons”.

The above approach was also reflected in the constitution31. While at the presentation of the draft article, Nehru commented that the article was a just compromise and it does justice and equity not only to the individual but to the community 32 . Thus the original of the constitution guaranteed deprivation of property by law alone. It also guaranteed the payment of compensation as fixed by the legislature.

Legislative power over land vests with the state33 government even though the obligations to implement international conventions34 lies with the Centre. The 74th amendment35 of the constitution also provides for delegation of more powers to the state in relation to the land and constructions and developmental activities over the land. But it is not an absolute freedom. It is to be interpreted in tune with the policy laid down by the Centre and five year planning policy adopted by the government in accordance with the needs of each area. Because the ultimate obligation is towards the people of India and as a whole the holistic development of environment of India. Thus due consideration of individual, community and above all the sustainable development principle is the need of hour.

31 Art.31 32 Ibid. at 1193 33 list II item 18 34 Art.258 35 http://urbanindia.nic.in/theministry/ministry_page.htm visited on 09-04-2012

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CONTEMPORARY LEGAL DEVELOPMENTS & TRANSFORMATIONS ON SURROGACY LAWS IN INDIA

Sonali Kusum*

Introduction - Medical & legal Development on Surrogacy

Surrogacy is defined as an arrangement in which a woman agrees to a pregnancy, achieved through assisted reproductive technology, in which neither of the gametes belong to her or her husband, with the intention to carry it and hand over the child to the person or persons for whom she is acting as a surrogate as provided under the ART Bill 1. In simple terms surrogacy means the process of carrying and delivering a child for another person as stated in Black Law dictionary.2

India's first in vitro fertilization (IVF) surrogate baby, named Kanupriya alias Durga was born in Kolkata on October 3, 1978 , this is only three months after the world’s birth of first surrogate child named Louise Joy Brown born in Great Britain on July 25, 1978.

In India surrogacy is practiced since year 2002 following the new medical tourism policy directed at earning foreign exchange and revenues through medical tourism3 by permitting foreign nationals to avail the services of Indian surrogate mother and commission surrogacy hence surrogacy began to be practiced in India.

Followed with this, ICMR , Ministry of Health & Family Welfare in the year 2001 initiated the task of formulation of first draft

* Ph.D Research Scholar , National Law School of India University ,Bangalore 1 The Assisted Reproductive Technologies (Regulation) Bill - 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010]. §2 ( aa ) ART Bill 2010 2 BLACK'S LAW DICTIONARY 1582 (9th ed. 2009). 3 Scott Carney, Inside India’s Rent-a-Womb Business, motherjones , March/April 2010 Issue , available at http://www.motherjones.com/politics/2010/02/surrogacy-tourism-india-nayna-patel (Last visited Feb. 15, 2014)

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Guidelines and ICMR laid down the permissible standards for the conduct of surrogacy in India in the year 2005 titled as National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India for the Clinics to comply and practice for the conduct of surrogacy in India .These ICMR Guidelines became the first regulating instrument on surrogacy in India which laid down standards for the fertility or ART Clinics to practice the assisted conception techniques like surrogate motherhood. The primary significance of the guidelines lies in the fact that it authoritatively provided for commercial and gestational surrogacy in India there by permitting the gestational services of a woman to be availed for gestation and delivery of child in return for monetary payment. As an after math of these Guidelines many fertility clinics mushroomed in the country providing the facility or the option of commercial commissioning surrogacy both to nationals and foreigners by placing advertisements promising children to infertile couple through surrogacy at a compelling prices / lucrative prices for their profiteering motives.

Supreme Court & High Court on Surrogacy – Case Analysis

Meanwhile, the supreme court of India in its landmark judgment of Japanese surrogate Baby Yamanda Manaji case4 involving the national of Japan as Intending couple who commissioned surrogacy in Anand , Gujarat in India by availing the gestational service of an Indian surrogate mother for a fixed sum of monetary payment under a surrogacy agreement to this effect . The surrogate child yamanda manaji was biologically related to the intending father and donor egg and carried and delivered by the surrogate mother.

The Supreme Court in this landmark case for the first time pronounced the legalization and practice of commercial surrogacy in India stating that there is nothing in Indian law which prevents or acts as an impediment to legalization of commercial surrogacy in India. The court enumerated the definition of surrogacy the types of surrogacy and the form of commercial surrogacy popularly practiced in India. The 4 Baby Manaji Yamanda. Union of India, (2008) 13 S.C.C. 518

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apex court listed several favorable factors namely easy availability of poor women in India , excellent medical infrastructure among others in India which facilitated commercial surrogacy in India. The Supreme court even acknowledged the fact that commercial surrogacy has reached upto industrial proportions. As per a UN study it is estimated that Commercial surrogacy is a booming business in India with returns more than 400 million dollars annually 5 . Having pronounced the legalization of commercial surrogacy , the apex court directed towards the enactment of a statutory law on the same as there is an absence of any effective, binding statutory law on surrogacy in India.

In this case, though the court mentioned about the economic, reproductive health exploitation of surrogate mother, the feminist ethical issues of surrogate motherhood as womb renting and surrogate mother and the rise of illegalities associated with commercial surrogacy in India particularly in the absence of any law but did not address the same.

In addition to these, the case brought forth the issue of raised significant issues concerning issues concerning the citizenship of surrogate child, the foreign travel permit or issue of passport for the surrogate child and the legal hassles due to the inter country statutory differences in the surrogacy laws of two nations namely Japan and India. While Japan prohibited commercial surrogacy and defined legal motherhood with the birthing mother in compliance with the roman legal maxim mater semper certa est "the mother is always certain" 6 enshrined in the Japanese civil code1896 7 Where as India despite the absence of any legislation on surrogacy but under the ICMR Guidelines 2005 commercial surrogacy or monetary payment for hiring gestational

5 Saket suman, Born(e) in desperation, The Statesman, 17 Sep 2014 available at http://www.thestatesman.net/news/77650-born-e-in-desperation.html?page=6 (Last visited Feb. 15, 2014) 6 Wikipedia, Mater semper certa est, Wikipedia, the free encyclopedia, available at http://en.wikipedia.org/wiki/Mater_semper_certa_est (Last visited Feb. 15, 2014) 7 Japaneese Civil Code, (Japanese: 民法 Minpō) , Government of Japan, translated by Ministry of Justice, Government of Japan, Act No. 89 of April 27, 1896, available at http://www.moj.go.jp/content/000056024.pdf(Last visited Feb. 15, 2014)

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services of surrogate mother is permitted and the legal motherhood is vested with the intending mother or the wife of the intending father.

At the outset court did not lay down any safeguards for the better protection of interest of either the surrogate mother or the surrogate child. The court directed the petitioners to approach the child commission on the findings that it is a specialized body related to child rights and hence an appropriate forum for addressing complaints or grievances related to surrogate child, this appear irrational as the commission has only power to issue recommendations which does not have effective binding powers.

In the successive year 2009, there was another similar case of commercial surrogacy, the Jan Balaz German Surrogate twins case 8 involving the German nationals as intending couples who also availed the services of Indian surrogate mother and paid her for the same. The Gujarat HC court has reiterated the supreme court judgment and upheld the legalization of commercial surrogacy in India and held valid such surrogacy agreement between the two parties as mentioned . This case also brought forth issues related to birth certificate for surrogate child and registration of names of both the parties namely the intending father and her wife as the parents of the surrogate child in the birth certificate and not the surrogate mother , along with these the woes of the surrogate motherhood and evils of the commercial transaction of motherhood and its consequential impact on women but the court very curtly expressed that surrogate mother is not their primary concern rather the child is the main concern whose legal parenthood could not be legally established . But despite this, the court did not invoke its parens patria jurisdiction 9 or its special powers to do complete justice in any case10 the court did not issue any issue any

8 Jan Balaz v. Anand Municipality and Ors., AIR 2010 Guj 21 9 Wikipedia, the free encyclopedia, Parens patriae, available at http://en.wikipedia.org/wiki/Parens_patriae (Last visited Feb. 15, 2014)Parens patriae is latin for "parent of the nation." It is a legal doctrine in English Common Law which confers inherent power and authority of the state to protect persons who are legally unable toact on their own behalf power to and to act as the parent of any child or individual who is in need of protection 10 V.N. SHUKLA, CONSTITUTION OF INDIA 131 (M.P.Singh ed., 2008) , “art” 142

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directions on the same considering the vulnerability of a new born child who may be unjustly deprived of parentage m nationality and all basic legal civil rights due to technicalities in law.

Hence even in this case, the court overlooked certain pertinent issues arising from such surrogacy arrangements despite legalizing the same. Thus these cases established the commercial surrogacy but shortcomings and oversight existed.

Considering the court directions, there has been formulation of the a draft Bill named Assisted Reproductive Technologies ( Regulations) , ART Bill 200811 formulated by the Indian Council of Medical Research (ICMR , Delhi) under the aegis of Ministry of Health and Family welfare Government of India modeled after ICMR Guidelines 200512 providing for the legal regulation of surrogacy in India. The central feature of this Bill is the legal permit to commercial surrogacy by providing for payment of monetary compensation to the surrogate mother for her gestational services by entering into a surrogacy agreement to this effect 13 and the enforceability of such commercial surrogacy agreement in India14. This draft ART Bill since its first ever formulation in year 2008 has been revised twice, once in the year 2010 15 and lately in the year 2013 16 with necessary modifications.

(Constitution of India, ed., 2008). 11 Indian Council of Medical Research. The Assisted Reproductive Technology (Regulation) Bill– 2008(Draft) Ministry of Health and Family Welfare, Government of India, available at http://icmr.nic.in/art/Draft%20ART%20(Regulation)%20Bill%20&%20Rules%20-%202008-1.PDF (Last visited Feb. 15, 2014) [hereinafter Draft Bill 2008]. 12 ICMR National Guidelines for Accreditation, Supervision & Regulation of ART Clinics in India, 2005, available at http://icmr.nic.in/art/art_clinics.htm (Last visited Feb. 15, 2014). 13 ART Bill 2010, supra note 2 at § 34 (3) 14 ART Bill 2010, supra note 2 at § 34 (1) (2) 15 The Assisted Reproductive Technologies (Regulation) Bill - 2010 (Draft), Ministry of Health & Family Welfare Govt. Of India, New Delhi & Indian Council of Medical Research New Delhi, available at http://icmr.nic.in/guide/ART%20REGULATION%20Draft%20Bill1.pdf (Last visited Feb. 15, 2014) [hereinafter ART Bill 2010]. 16 Assisted Reproductive Technology (Regulations) Bill 2013, (Tentative Draft) Date Jun. 27, 2013, Legislative Department, Ministry of Law & Justice, Government of India [hereinafter ART Bill 2013].

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At present, the ART Bill 2013 has been tabled before cabinet but remains in pendency. The ART Bill 2013 is proposed after several rounds of consultations and deliberations with different Government bodies, Commissions, Ministries17 , NGOs and the necessary suggested safeguards have been incorporated in the Bill. Despite the formulation and revision of all these legal instruments, it is a long hiatus with no enactment of any statutory law on surrogacy in India.

Evidently there is a legal void on surrogacy in India which represents the laxity in the regulations making India one of the most liberal regime surrogacy with no functional law in practice or effect. In fact, the absence of any binding law and any monitoring or supervisory body in itself has been one of the most favourable factors making India the hub of surrogacy. India is popularly known across the world as Global capital of surrogacy18and the surrogacy capital of the world and Anand in Gujarat in particular in India is known as the cradle of the world19.

While the law develops through a series of drafting, revision process, there has been emergence of new regulating instruments which are gradually transforming the liberal or permissible regime of Indian surrogacy into a stricter or restrictive regime by imposing necessary control sand curbs in commissioning surrogacy in India. Hence it is significant to observe the legal developments on surrogacy taking place in the recent years and identify the distinguishing features of the same. Accordingly, some of the newly formulated regulating instruments on surrogacy are discussed here.

17 AARTI DHAR , Ministries consulted on Assisted Reproductive Technology Bill , THE HINDU, November 23, 2013, available at http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-bill/article5380425.ece(last visited Feb. 21, 2014) 18 Kounteya Sinha, Bill Aims To Weed Out Rent-A-Womb Clinics, TNN, Jul. 13, 2012, available at http://timesofindia.indiatimes.com/india/Bill-aims-to-weed-out-rent-a-womb-clinics/articleshow/14858687.cms?referral=PM (last visited Feb. 11, 2014) 19 Center for social Research Delhi , Surrogate Motherhood- Ethical or Commercial, Page no. 10 , available at http://www.womenleadership.in/Csr/SurrogacyReport.pdf , [email protected] (last visited Feb. 21, 2014)

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Contemporary Legal Instruments on Surrogacy- Findings & Assessment

A. Home Ministry Guidelines 2012

Since a year three main legal developments have take place. First and foremost the Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy of the year 201220 which is mainly directed towards the foreign nationals ( not applicable on Indian nationals) seeking to avail surrogacy in India. The Guidelines issued instructions to the foreigners seeking to avail surrogacy in India to commission surrogacy only on after obtaining medical VISA and prohibited tourist visa and the use of the latter is haled to be a violation of visa norm liable to legal action or prosecutions. Hence this guidelines for the first time imposed a strict control on surrogacy in India by redefining the accessibility based on marital status. Nevertheless, these Guidelines are criticized as discrimination on the ground of sexual orientation of a person and denying access or means to procreative freedom to establish their own family and have children to such individuals21.

This is also viewed as impairment or arbitrary interference with the reproductive decision making of an individual by permitting to commission surrogacy to have a child only after the second year of marriage and not any time prior . This appears prima facie arbitrary as it is the sole prerogative or right of the couple to decide the stage at which they may have children, the spacing between the number of 20 Government of India , Ministry Of Home Affairs , (Foreign Division) , New Delhi , Home Ministry Guidelines regarding conditions for grant of VISA to foreign nationals intending to visit India for commissioning surrogacy , issued on 9th July 2012, No. 25022/74/2011/F-1, 14th October 2013 , available at http://www.icmr.nic.in/icmrnews/art/MHA%20Notification_%2014%20Oct.,%202013.pdf (last visited April 25 , 2014). 21 Vidya Krishnan, India’s draft surrogacy Bill bars homosexuals, live-in couples,livemint, Aug 07 2013, available at http://www.livemint.com/Politics/ZsS2zs7KvqHlk4FCguW0EN/Draft-surrogacy-Bill-bars-homosexuals-livein-couples.html?utm_source=copy (last visited April 25 , 2014).

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children and the means to have children as these form the basic constituent of the reproductive freedom as guaranteed by the International Conference on Population and Development (ICPD), Cairo 1994. 22

These Ministry Guidelines amounts to arbitrary state interference in the private , family lives of an individual , this is much in contravention of the “right to privacy” as held by the supreme court of India in the classic case of Kharak Singh v state of Bihar23 and in B. K. Parthasarthi v. Government of Andhra Pradesh 24which upheld “the right of reproductive autonomy” of an individual as a facet of his “right to privacy” as well as similar other cases on this point 25 and as much violation of the International Convention.

This Guideline may be viewed in the contrast of the progressive surrogacy laws of other nations as California Surrogacy law 201326, UK HEFA Act 27 through recent revision of definitions of parenthood in April 201028, which permit homosexuals to commission surrogacy in the same footing as heterosexuals treating them as equals. In line of this arguments, there are several cases under the foreign legal jurisdictions which have granted legal recognition homosexuals to commission

22 INTERNATIONAL CONFERENCE ON POPULATION AND DEVELOPMENT , Cairo, 5-13 September 1994 , UNITED NATIONS Distr. GENERAL A/CONF.171/13, 18 October 1994, available at http://www.un.org/popin/icpd/conference/offeng/poa.html (last visited April 25 , 2014). 23 Kharak Singh v. State of U.P., AIR 1963 SC 1295. “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be left alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters” - Mathew, J. as Lord Denning. 24 B. K. Parthasarthi v. Government of Andhra Pradesh AIR 2000 A. P. 156, Javed v. State of Haryana, (2003) 8 SCC 369 25 Govindv. State of M.P, (1975) 2 SCC 148: 1975 SCC (Cri) 468. R. Rajagopal v. State of T.N, (1994) 6 SCC 632. 26 Richard Vaughn, California Surrogacy Law To Take Effect Jan. 1, International fertility Law Group, |November 26th, 2012, available at http://www.iflg.net/california-surrogacy-law-to-take-effect-jan-1/ (Last visited Feb. 18, 2014). 27 UK HEFA, Human Fertilization and Embryology Act 2008, 2008 CHAPTER 22, available at http://www.legislation.gov.uk/ukpga/2008/22/contents (Last visited Feb. 18, 2014). 28 UK HEFA , IVF – the Law , Phase one: On April 6 2009 part 2 of the Act, the revised definitions of parenthood, took effect. On April 6 2009 part 2 of the Act, the revised definitions of parenthood, took effect, available at http://www.hfea.gov.uk/134.html (Last visited Feb. 18, 2014).

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surrogacy and vested them with legal parentage. In Elisa B. v. Superior Court29 California court recognizes a lesbian co-parent as legal parent of the surrogate child as they bring about its birth and carry out the plan to co-parent a child courts are willing to recognize a lesbian co-parent as a legal parent. Similarly, In the Matter of Jacob,30 T.V. v. NY Dep't of Health31, Matter of Doe,32 The New York Court held that the right of same sex unmarried intending couple to legal parentage over surrogate child through adoption.

B. Assisted Reproductive Technologies (Regulation) ART Bill 2013

The ART Bill 201333, though this draft of the Bill only a revision of the previous 2010 draft but with addition of certain novel and progressive provisions in the draft. It is proposed under the 2013 draft that a women may be permitted to be surrogate only upto a maximum of three times from the earlier limit of five times and egg donor only upto three times as reduced from six times during her life time as previously stated in the ART Bill 201034. The Bill lays down list of documents to be furnished by foreign nationals issued from their Embassy for to legally commission surrogacy in India and due consent to take the surrogate child or children back to their foreign country along with the grant of citizenship , parentage rights for the surrogate child in the foreign nation.

The ART Bill 2013 also imposes a stringent punishment by increasing the term of punishment for any offense under the Bill related to medical misuse of ART Technology for causing sex selective

29 Elisa B. v. Superior Court (2005) 37 C.4th 108, 33 C.R.3d 46, 117 P.3d 660. 30 In the Matter of Jacob, 86 NY2d 651 (1995). 31 T.V. v. NY Dep't of Health 88 AD3d 290 (2d Dep't 2011). 32 Matter of Doe, 7 Misc 3d 352 (NY Cty. Surrogate's Ct., Feb. 1, 2005). 33 Assisted Reproductive Technology (Regulations) Bill 2013, (Tentative Draft) Date Jun. 27, 2013, Legislative Department, Ministry of Law & Justice, Government of India [hereinafter ART Bill 2013]. 34 AARTI DHAR Gaps in surrogacy bill , THE HINDU , October 27, 2013, http://www.thehindu.com/sci-tech/health/ministries-consulted-on-assisted-reproductive-technology-bill/article5380425.ece

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birth of surrogate child. The most notable development under this draft has been the establishment of ART Registry which is primarily functioning for granting accreditation , registration to the ART Clinics and ART Banks as well as maintains necessary records , information , data with regard to surrogacy arrangement in India.

C. Indian Society for Third-Party Assisted Reproduction :

The INSTAR35 presided by Dr. Bavishi as President and Dr Rita Bakshi Vice President, these are recommendations are formulated by a group of self conscious and motivated doctors, lawyers, experts whose main purpose is to protect the interest of surrogate mothers. The recommendations for the first time stipulated a fixed sum of compensation around 2.5 lakhs to be all the surrogate mothers at the state and national level throughout India. Along with this, it also lays down monetary compensation to be paid to the surrogate mother in case of health eventualities or health risks arising out of surrogate pregnancy. The INSTAR recommendations are supplementary to the relevant provision36 of ART Bill which provides for monetary payment to surrogate mother but does not specify the amount of compensation. However the, practice of these guidelines are entirely voluntary and these guidelines have no legal binding force in them.

It has been observed and reported pursuant to research studies conducted by NGO37 , women rights groups that the surrogate mothers are not paid the exact sum as promised under the surrogacy contract entered by them rather quite often they are paid half of that amount or a lesser amount than that and they are subject to cheating, fraudulent practices.38 The right of surrogate mothers to monetary compensation

35 INSTAR KEY RECOMMENDATION ,5th October, 2013 Guwahati, available at http://instarorg.blogspot.in/2013_10_01_archive.html, (last visited March 10, 2014). 36 ART Bill 2010, supra note 2 at § 34 (1) (3) ART Bill 2010 37 Sama–Resource Group for Women and Health, Birthing A Market A Study on Commercial Surrogacy, published by Sama–Resource Group for Women and Health, 2012 , Delhi , available at http://www.samawomenshealth.org/downloads/Birthing%20A%20Market.pdf (last visited March 10, 2014). 38 R. SUJATHA , Chennai-based trust seeks to bring about transparency in surrogacy, the hindu , CHENNAI, January 20, 2013, available at http://www.thehindu.com/todays-paper/tp-national/tp-

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in return for gestational services including reimbursement of cost of surrogate pregnancy and related expenses has been held as an established right by Justice Hedley in UK court39. Similar protection is required for the surrogate mothers in India.

End notes - Suggestions

Despite, these legal instruments there are still limitations in addressing grave concerns related to surrogacy like the reproductive health safeguards for the surrogate mothers and issues related to the surrogate child among others. Besides, a host of regulatory instruments with its distinct merits and demerits as discussed above on surrogacy in place have created a state of flux with a series of proposed change whose enforceability remains doubtful. These newly proposed legal instruments ART Bill 2013 have only added to present set of ambiguities. There is need to incorporate the progressive provisions from the foreign jurisdiction as deem necessary in the Bill

Therefore it is suggested that the ART Bill 2013 must be enacted at the earliest to ensure an effective binding statutory law for better conduct of surrogacy in India towards medically, socially and legal desirable purposes.

tamilnadu/chennaibased-trust-seeks-to-bring-about-transparency-in-surrogacy/article4325195.ece (last visited March 10, 2014). 39 TAMARA COHEN, Childless couples win right to pay a surrogate mother to bear their child, 9 December 2010, daily mail UK, available at http://www.dailymail.co.uk/news/article-1337005/Childless-couples-win-right-pay-surrogate-mother.html#ixzz3BhFt6woB (last visited March 10, 2014).

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FIDUCIARY THEORY OF JUS COGENS - A CRITICAL STUDY

Mazharul Islam*

Introduction

The notion of jus cogens1 has been widely perceived to establish a normative hierarchy within international law, giving certain fundamental norms such as the prohibitions against slavery and genocide with a quasi-constitutional status vis-à-vis ordinary conventional and customary norms. Overtime, legal scholars have generated conflicting catalogues of peremptory norms, fuelling scepticism about the jus cogens concept itself.2 While the jus cogens concept has achieved widespread acceptance across the international community, its unsettled theoretical foundation has impeded its implementation and development.3

Given the vital significance of jus cogens, the doctrinal opposition to it over the past several decades, although sometimes voiced in a popular and attractive language, has always proved debatable and of little impact on how the actual concept of international public policy has developed. Instead, what has happened is an increase in the recognition of the essence and effects of jus cogens in practice and its increasing treatment in doctrine. In this respect the formulation of a fiduciary theory of jus cogens by Professors Criddle and Fox-Decent is yet another development that can facilitate scholars’

* Student of Master of Laws (LLM), South Asian University, New Delhi, India, A University established by SAARC Nations 1 As per Article 53 of the Vienna Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void. The treaty allows for the emergence of new peremptory norms, but does not specify any peremptory norms. Article 53 reads as- "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." 2Lauri Hannikainen, ‘Peremptory Norm in International Law: Historical Development, Criteria, Present Status’, Finnish Lawyers' Pub. Co., (1988), p.150. 3See, Evan J. Criddle & Evan Fox-Decent, ‘A Fiduciary Theory of Jus Cogens’, vol. 34:331, Yale Journal of International Law, (2009), pp.346-347.

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understanding of the jurisprudential underpinnings of this rather complex normative phenomenon.4

This paper seeks to study the most recent theory, i.e., fiduciary theory, developed on the concept of jus cogens. This paper has been divided into five different parts. Part I outlines a brief introduction and the research design of the paper. Part II seeks to outline the Kant’s model of Fiduciary relations and the concept of fiduciary state. Part III seeks to study the identification of the peremptory norm as proposed by the fiduciary theorists. Part V seeks to sum up the paper with a conclusion.

The Fiduciary Theory of Jus Cogens: An Overview

Kant’s Model of Fiduciary Relations

Fiduciary relationships arise from circumstances in which one party holds discretionary power of an administrative nature over the legal or practical interests of another party.5The beneficiary under the fiduciary relationships is peculiarly vulnerable to the fiduciary’s power in that he/she is unable, either as a matter of fact or law, to exercise the entrusted power.

Kant sets out the moral basis for fiduciary obligations in an argument concerning the duties that parents owe their children. For Kant, legal rights embody the realization of a person’s moral capacity to put others under legal obligations.6 Fiduciary obligations to children stem from the parents’ unilateral creation of a person who did not consent to be a party to the parent-child relationship and who cannot survive without support. These circumstances trigger the child’s moral

4Alexander Orkhalashvili, ‘Observations on a Fiduciary Theory of Jus Cogens’, Yale Journal of International Law Symposium, October 19th, (2009). 5See, Supra note 4 at p. 349 6For Kant, legal rights embody our moral capacity for putting others under legal obligations. Kant refers to property and contractual entitlements as acquired rights, because some act is required on the part of the right-holder for her to acquire them. An innate right, on the other hand, “is that which belongs to everyone by nature, independently of any act that would establish a right.”See, Kant, Immanuel, ‘The Metaphysics of Morals’, Mary Gregor trans., Cambridge Univ. Press, 1991 (1797).

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capacity to place the parents under a fiduciary duty to provide for her security.7

Extending Kant’s reasoning, the dignity intrinsic to legal personality supplies the moral basis for fiduciary obligation in other contexts, as well. A relationship in which the fiduciary has unilateral administrative power over the beneficiary’s interests can be understood as a relationship mediated by law only if the fiduciary (like the parent) is precluded from exploiting her position to set unilaterally the terms of her relationship with the beneficiary.8

The fiduciary principle authorizes the fiduciary to exercise power on the beneficiary’s behalf, but subject to strict limitations arising from the beneficiary’s vulnerability to the fiduciary’s power and her intrinsic worth as a person. In the case of the state-subject fiduciary relationship, the fiduciary theorists argue that these limitations include jus cogens norms.

Concept of Fiduciary States

The argument for the state as a fiduciary draws on the fiduciary concept’s general constitutive features. Legislative, executive, and judicial powers exhibit the institutional, purpose-laden, and other-regarding characteristics that constitute administration. Legal subjects, as private parties, are not entitled to exercise public powers and thus are peculiarly dependent upon and vulnerable to public authority.9 It follows that the state’s sovereign powers give rise to a fiduciary obligation.

The fiduciary principle authorizes the state to secure legal order on behalf of every agent subject to state power. Because each person is an equally valid subject of the fiduciary authorization of state authority, each must be accorded an equal opportunity to acquire rights which can enshrine and protect their respective interests. For example, a state cannot support slavery without contravening its most basic 7See, ibid at p. 98-99. 8Supra note 4 at p. 355 9Ibid at p. 351

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fiduciary obligation to ensure that each agent subject to its powers is regarded equally as a person capable of possessing legal rights.10 By positing the state as a fiduciary of its people, the fiduciary theory co-opts sovereignty by deriving peremptory norms from the very powers that are constitutive of it.

Criteria for the Identification of The Peremptory Norms

Some of the fiduciary model’s criteria for specifying peremptory norms are formal in that they condition the form such norms must adopt, while others are substantive in that they constitute the substantive aspect of peremptory norms which flow from the fiduciary position of the state.

Formal Criteria

Fiduciary theorists begin by sketching seven formal criteria borrowed directly from Lon Fuller’s11 internal morality of law, a set of desiderata that legal norms should aspire to satisfy irrespective of their substantive aims.12

10Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Trial Chamber Judgment, ¶ 153 (Dec. 10, 1998). See also, Supra note 4 at p. 352. 11Fuller, Lon L., ‘The Morality of Law’, rev. edn., The Storrs Lectures Series, (1969) 12 According to Fuller a legal system has the following eight desiderata: (1) There must be laws (i.e. someone or somebody handing out rulings is not enough; there must be a law in existence) (2) These laws must be publicized (i.e. laws cannot be kept secret, or be unknown) (3) These laws must prospective, not retroactive (i.e. laws should not to extend to cases before the existence of the law) (4) These laws must be understandable (i.e. not to be (a) unintelligible, or even (b) extremely difficult to understand) (5) These laws must not contradict each other (i.e. if there were laws e.g. requiring one to vote and prohibiting one to vote, then it would be impossible not to break the law -- there would be a "legal dilemma"; the law could not guide action) (6) These laws must not require the impossible (e.g. by impossible here is meant physically or psychologically impossible, e.g. no law forbidding sneezing in public; "ought implies can") (7) These laws must not change too rapidly (i.e. for example there should not be, in the same day, a new law, then the scrapping of that law and another new law, and then the scrapping of that law and another new law) (8) These laws must be the laws that are enforced (i.e. the actual administration of the law must be consistent with the laws themselves; it must not be the case that these laws are not enforced and that no laws, or other laws, are enforced). See, Supra note 11.

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1. Peremptory norms must embody general and universalizable principles as opposed to ad hoc and particularized commands. The fiduciary theory is a general theory of state legal authority, and thus its substantive principles can have only a general and potentially universal character.

2. Second, peremptory norms must be public so that states, as fiduciary agents of their people, can know them and adjust their policies and actions accordingly. States cannot be expected to conform their behaviour to secret norms.

3. Third, compliance with jus cogens norms must be feasible in the sense that they cannot demand the impossible. States with entrenched poverty, for example, cannot be expected to alleviate such conditions in the very near term.

4. Fourth, the subject matter of the norm should be clear and unequivocal, since the point is to provide a public criterion of justice capable of guiding state action. The prohibition on slavery, for example, is clear and unequivocal, whereas a prohibition on exploitation, without more, is not.

5. Fifth, peremptory norms should be internally consistent as well as consistent with the wider set of jus cogens norms. An inconsistent peremptory norm, or a norm that contradicts another, provides no guidance to the fiduciary state entrusted with securing legal order on behalf of its people.

6. Sixth, jus cogens norms should be prospective rather than retroactive innature, since states cannot go back in time to bring their actions into conformity with the norm. This does not exclude the emergence of a peremptory norm that requires reparations for past wrongs, since the

Fuller says in his books that "A total failure in any one of these eight directions does not simply result in a bad system of law; it results in something that is not properly called a legal system at all". (p. 21). He further says that- "Government says to the citizen in effect, "These are the rules we expect you to follow. If you follow them, you have our assurance that they are the rules that will be applied to your conduct."" (p. 21-2)

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norm would still apply to the state prospectively by requiring it to provide a remedy at some point in the future.

7. Finally, the set of peremptory norms should remain relatively stable overtime so that states can plan their actions and implement policies within a relatively stable framework of international law. With respect to emerging norms, this means that attention should be paid to the effect their recognition would have on benevolent state policies that were innocently developed without taking the emerging norm into account. In practice, the stability criterion is unlikely to play a major role because peremptory norms are immanent to the state’s fiduciary obligation to secure legal order, and international law already recognizes a good number of them. But a concern for stability would rule out the theoretical possibility of replacing the currently accepted norms of jus cogens with an entirely different set.13

Norms that flagrantly violate any of these principles would either frustrate the state’s fiduciary mission or simply subvert the state’s ability to establish legal order, and therefore would lack any justification from the point of view of the fiduciary model.

Substantive Criteria

Three further necessary and substantive conditions flow from the structure and content of the fiduciary theory.14

1. Principle of integrity: peremptory norms must have as their object the good of the people rather than the good of the state’s officials.

2. Second is a principle of formal moral equality: the fiduciary state owes a duty of fairness or even handedness to the people subject to its power.

3. Third is a principle of solicitude: peremptory norms must be solicitous of the legal subject’s legitimate interests.

13Supra note 4 at pp. 361-362 14Ibid at pp. 362-367

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The fiduciary theory’s three substantive criteria, like the formal criteria, establish necessary rather than sufficient conditions of jus cogens. Most if not all human rights conform to them.

Seven categories of jus cogens norms appear in the influential Restatement on Foreign Relations of the United States: the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or the cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and “the principles of the United Nations Charter prohibiting the use of force.”15Each of these norms merits peremptory treatment under the fiduciary theory because they negate a state’s subject’s secure and equal freedom. The fiduciary theory also clarifies jus cogens’s applicability to other international norms. For example- the norm against public corruption. The prohibition against public corruption satisfies the fiduciary theory’s substantive criteria by advancing the best interests of the people rather than state officials, and by requiring the state to treat its national patrimony as a public good to which every national has an equal claim under the rule of law.

Conclusion

Anthony D'Amato once said, ‘What we require-like the third bowl of soup in the story of the three bears-is a theory of jus cogens that is Just Right. I do not know if such a theory is possible. I don't even know if one is conceivable. But if someone conceives it, that person deserves the very next International Oscar.’16

Fiduciary theory is another attempt to explain the concept of jus cogens. According to the authors, the State and its institutions, as a consequence of the powers vested in them by the subjects of the domestic legal system, owe a corresponding fiduciary duty to those subjects. One of the principal obligations included in this duty arguably

15Restatement (Third) of Foreign Relations of the United States § 702 cmts. d-i, § 102 cmt. k (1987) 16 Anthony D’Amato, ‘IT'S A BIRD, IT'S A PLANE, IT'’S JUS COGENS!’ Connecticut Journal of International Law, Vol.6 No. 1, (Fall 1990), pp.1-6

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consists of compliance with jus cogens. One of the main features of this theory is the prescription of rules for the identification of jus cogens. Although the theoretical base of fiduciary theory seems very sound, there are some areas on which this theory could be criticised.

Fiduciary theory decouples peremptory norms from state consent without specifying an institution capable of generating, modifying, or interpreting peremptory norms. It totally negates the consent based approach for the identification of jus cogens. Further, this theory totally undermines treaties and customary international law by rendering these sources superfluous to international human rights law.

While this theory rejects the positivist thesis17 that state consent constitutes the basis for peremptory norms’ non-derogable character, the fiduciary theory continues to rely on these traditional modalities of international lawmaking to specify norms that satisfy the fiduciary theory’s formal and substantive criteria.

Further, because of its theoretical foundations it undervalues norms that target non-state actors such as terrorists, corporate polluters, or perpetrators of domestic violence.

Despite the above shortcomings, this theory, this theory provides a very sound theoretical foundation to the concept of jus cogens.

To date, the fiduciary theory, regardless of its potential merits, has not had a noticeable impact on scholarship or legal practice. On the other hand, disagreement on whether, and the extent to which, jus cogens is based on natural law or public order approaches continues to

17Positivists generally adhere to consent based approach. According to the consent-based approach, international norms achieve peremptory status through the same sovereign lawmaking processes that generate ordinary international law. The leading positivist theory of jus cogens conceives of peremptory norms as customary law that has attained peremptory status through state practice and opinio juris. See, Byers, Michael, ‘Conceptualizing the Relationship between Jus Cogensand Erga Omnes Rules’, 66 NORDIC J. INT’L L. 211, 212 (1997).

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compromise not only a basic understanding of this doctrine, but also its coherent application in practice.

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THE CONCEPT OF VILLAGE AND THE CONSTITUENT ASSEMBLY

Dr. L. SRIRAMADUTAM*1

Introduction

The freedom fighters have launched a movement to free India from the bondage. Along with the freedom struggle they have prepared an agenda on which they have to work. The prime work of this agenda is village movement. What is village movement? Simply the village movement is nothing but the development of villages on all fronts. So they felt that it is necessary that the village administration should be strengthened at any cost. The congress was very keen for the strengthening of villages under Panchayat Raj system.

In the beginning, they appeared to be largely strategic; later on, the socio-economic and political-philosophical’ dimensions became more explicit. The salient features of Gandhian political thought are well known. However, for a better appreciation of the ideology of Panchayat raj, it may be necessary to have a closer look at what J.C. Kumarappa called ‘The Village Movement’. In the Hind Swaraj, Gandhiji instituted a sharp comparison between the Indian civilization, and the western civilization.

Marxists, liberal socialists, liberals, etc. could hardly be expected to share this perspective fully. Many persons in the Congress and elsewhere, pre-occupied with the more immediate problems of national struggle, the day-to-day problems of political organization and social and economic reform, were unable to adjust their sights to the deepest intimations of the philosophy of non-violence.

Discussions in the Constituent Assembly for the Strengthening of Villages

The Indian National Congress comprised all these elements and it looked as though the higher reaches of the ‘village movement’ were

*M.A., LL.M., Ph.D. Visakhapatnam. Author available at :[email protected]

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outside the pale of the Congress consensus. With the Constituent Assembly in the offing so that it could be the framework of the political order of free India. In October, 1945, Gandhiji insisted upon a frank discussion with Nehru regarding their differences on this question; such a discussion was important as he was old and had ‘named’ Nehru as his ‘heir’. Gandhiji wrote to Nehru: “I hold that without truth and non-violence there can be nothing but destruction for humanity. We can realize truth and non-violence only in the simplicity of village life. …….! This simplicity also implied ‘self-sufficiency’. Nehru’s reply brought out the difference between the two idioms of thought quite clearly: “The question is here that is not one of truth versus untruth or non-violence versus violence. One assumes, as one must, that true cooperation and peaceful methods must be aimed at and a society which encourages these must be social objective. The whole question is how to achieve this society and what its content should be. I do not understand why a village should necessarily embody truth and non-violence. A village, normally speaking, is backward intellectually and culturally and no progress can be made from a backward environment. Narrow-minded people are much more likely to be untruthful and violent….” This indicated that Gandhiji had not been able to convert Nehru to his way of thinking; the gulf continued to be wide. It is worthwhile recalling at this juncture Gandhiji’s observation in Hind Swaraj way back in 1908: “It is my deliberate opinion that India is being ground down, not under the English heel, but under that of modern civilization.” Nehru would have almost reversed this. In his reply to Gandhiji’s letter cited above, Nehru reiterated his faith in science and technology, and while deploring the evils of the present ‘outgrown cities’, wanted ‘the village to appropriate the culture of the town.’ He then asked Gandhiji: “How far it is desirable for the Congress to consider these fundamental questions involving varying philosophies of life, it is for you to judge,” and added, “I shall imagine that a body like the Congress should not lose itself in arguments over such matters which can only produce greater confusion in people’s minds resulting in inability to act in the present.” This provides an

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interesting sidelight on the nature of the Congress. The ‘fundamentals’ of the Congress were said to have never been ‘considered’, ‘much less adopted’, by the Congress. Nehru politely hinted in his reply that Gandhiji thought and discussed many basic issues ‘in terms of long ago’ and stressed the need to keep in view ‘present facts forces and the human material we have today.’ As if to suggest that questions involving the nature of the polity which free India should adopt had better be decided by the Constituent Assembly, Nehru stated: “Ultimately, of course, this and other questions will have to be decided by representatives of free India”. For quite some time, Gandhiji had been feeling that his hold on the Congress was weakening. “Congress men themselves are not of one mind even on the contents of independence. I do not know how many swear by non-violence or the charka or believing in decentralization; regard the village as the nucleus. I know on the contrary that many would have India become a first class military power and wish for India to have a strong centre and build the whole structure round it.” The holocaust preceding and following partition and independence must have hardened Nehru and many others further. While framing the Constitution, the Constituent Assembly did work on a model which was quite close to the one Gandhiji feared: ‘the whole structure built around a strong centre.’

Such a trend, sensed to clearly in 1946, continued to be a cause of deep anguish for Gandhiji. During the last days of his life, he thought in terms of drastic remedies. The ‘Lok Sevak Sangh’ document has been described as his ‘Last Will and Testament’. The first paragraph of the document is worth quoting in full: “Though split into two, India having attained political independence through means devised by the Indian National Congress, the Congress in its present shape and form i.e., as a propaganda vehicle and parliamentary machine, has outlived its use. India has still to attain social, moral and economic independence in terms of its seven hundred thousand villages as distinguished from its cities and towns. The struggle for the ascendancy of civil over military power is bound to take place in India’s progress towards its democratic goal. It must be kept out of unhealthy

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competition with political parties and communal bodies. For these and other reasons, the AICC resolves to disband the existing Congress organization and flower into a Lok Sevak Sangh under the following rules with power to alter them as occasion may demand.” He then sketched the structure of the new polity. The Panchayat would be the basic unit. Two contiguous units would elect a first grade leader. A set of hundred such panchayats would elect 50 first grade leaders who, in turn, would elect a second grade leader. When the entire country is covered, all the second grade leaders would ‘serve jointly for the whole of India and severally for their respective areas.’ The second grade leaders might elect, when considered necessary, from among themselves ‘a chief who will, during pleasure regulate and command all the groups.’ Provinces and districts were not brought into the picture as their ‘final formation’ was ‘still in a state of flux’. The rest of the document dealt with guidelines for workers who would be engaged in village development.

The Congress was not disbanded; nor did the Constituent Assembly favour the panchayat as the basic unit of India’s Constitutional system.

The Constituent Assembly met under the shadow of events of the Centre of which was the pressing problems of law and order communal harmony federalism, etc. Barring Gandhiji’s epic efforts, all these were dealt with largely in terms of western political and administrative institutions. Realism both in international and domestic politics involved an element of ‘real politik’ too. It looked as though the basic premises of the Gandhian ideology – the village movement as an alternative to ‘modern civilization’; non-violence involving such ideals as non-possession and suffering pervaded by transcendental love; equality not only before God but also in the sense of equal wages for all kinds of work, intellectual as well as manual, whether one is a doctor or lawyer or sweeper etc; and radical political and economic decentralization with the self-sufficient village constituting a basic unit – hardly received serious attention by many ‘practical’ persons. Notwithstanding their respect for Gandhiji for

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several reasons, most Congress leaders did not accept these premises. Some ardent Gandhians like Shriman Narayan tried to influence the course of events. In his Gandhian Constitution for India published in 1946 on the eve of the first meeting of the Constituent Assembly, he wrote that the question whether India should have an American or Russian type of Constitution or ‘Swadeshi’ Constitution ‘is of supreme importance; it must be answered here and how instead of being postponed to a future date when political power actually devolves on us’. He picked up the threads from his earlier work published in 1944, The Gandhian Plan for Economic Development for India. Suggestions that the general trend of world economic thought is towards decentralization and cottage communism’, he stated: “This system was in existence in India from very ancient times”. In his subsequent work cited above, he returned to the theme. “The type of decentralized Democracy that India had carefully evolved and maintained for centuries in the form of Village Republics was not a relic and survival of tribal communism; it was a product of mature thought and serious experimentation.” He was, however, conscious of the need to introduce modifications to suit the modern conditions of civic life. He then expounded the principles of the “Gandhian Constitution’, and stressed their relevance for the contemporary world; Gandhiji’s encouragement and guidance lent special value to the exposition. The basic premises of Gandhian thought have already been touched upon. Historically, it is worth noting that Nehru, who could be regarded as the ‘heir’ of Gandhiji in the sense that he became the supreme national leader after Gandhiji, was clearly not his ‘heir’ in the ideological sense. The Objectives Resolution introduced by him in the Constituent Assembly on December 13, 1946, which articulated the basic ideological and institutional framework of the new Constitution, reflected the western Welfare State model. Introducing the Resolution, he made a moving reference to the Father of the Nation who was away ‘ceaselessly working in a far corner of India’, ‘in pursuit of his ideal.’ But for ‘examples’ in Constitution – making he recalled the historic landmarks of the American, French, and Russian revolutions. He made it quite

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clear that he stood for socialism, and that but for a desire to avoid what might have been considered a needless controversy’ the Resolution might have stated that ‘we wanted Socialist State’. In a conscious attempt at consensus-building, Nehru and many others would move towards the centre in the liberal-socialist spectrum, but any stark contrast between the ‘modern civilisation’ and ‘true civilization’ was virtually outside their frame of reference. Predictably, the Objectives Resolution approved by the Assembly did not visualize the village as the basic unit of the new political system.

The task of Constitution-making gathered momentum with the drafting of questionnaire, memorandas etc. from March, 1947, onwards. The Constitutional Advisor, B.N. Rau, prepared useful notes outlining relevant provisions in several western Constitutions : U.S.A., Switzerland, Ireland, Canada, etc. many details were patterned on the relevant provisions of the Government of India Act of 1935, and of the western Constitutions referred to above, indicating the preponderance of western Constitutional categories. “A Gandhian Constitution seems not to have been given a moment’s thought’ when the stage was set for preparing a Draft Constitution, certain attitudes crystallized which were basically opposed to the Gandhian premises touched upon earlier : acceptance of ‘modern civilization’ as something desirable or inevitable; consequent reservations vis-avis ‘ahimsa’ in so far as it was opposed to the basic secular thrust of modern civilization as distinguished from a humanitarian appreciation of the moral and spiritual dimensions of ‘ahimsa’; a federal-parliamentary structure with a bias towards centralization, a bias further accentuated by a widely shared anxiety to make the Nation stronger; and making the individual, and not the village, as the basic unit of the political system.

It is noteworthy that during the discussions on the reports of the Union and Provincial Committees in July and August, 1947, among the critics who espoused the cause of panchayats, ‘only one critical voice was authentically Gandhian. The Draft Constitution, prepared with great care, was completed in February 1948; it took nearly 18 months, “The word panchayat did not once appear in the Draft

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Constitution”. The Constituent Assembly had towering personalities, legal luminaries, and persons with a distinguished record of public service; it received competent assistance from civilians, notably B.N. Rau. Notwithstanding their reverence for the Father of the Nation, most of them considered the Gandhian alternative as something outside the realm of practical politics.

Till the Draft Constitution was placed before the Assembly in October 1948, the placid situation with regard to panchayats continued barring a reference from the President of the Assembly, Rajendra Prasad, to the Constitutional Advisor in May, 1948. This was occasioned by an article by K.S. Venkataram published in a South Indian Journal, Swatantra, in April, 1948. Commending it to the Advisor, the President said: “I strongly advocate the idea of utilizing the adult franchise only for the village panchayat and making the Electoral College for electing representatives to the Provinces and the Centre”. Irrespective of whether Rejendra Prasad was a ardent a Gandhian as Kumarappa or Shriman Narayan, raising this issue of direct election at a stage when the Draft Constitution had already been prepared, meant reopening of settled questions. An apparently Gandhian electoral device was sought to be grafted to a Constitution not based upon Gandhian premises. The issue of indirect election, consequently, lost some of its philosophical aura. B.N. Rau, a civilian by training, perceived the reference in idiom to which he was used. He pointed out that the relevant articles of the Draft Constitution providing for direct elections embodied the decisions of the Constituent Assembly. Technically, those decisions had to be reversed if the system of indirect elections was to be introduced. Apart from the consideration that ‘it may not be easy to reverse the decision already arrived at by the Constituent Assembly,’ there were some important considerations which wakened the case for the ‘Panchayat plan’: firstly, the world trend was strongly towards direct elections; secondly, the stipulation in the ‘panchayat plan’ regarding some of the qualifications of legislators – social service, character and the sannyasin outlook on life – ‘do not lend themselves to precise definition, even if

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there was agreement about their necessity’; and thirdly, the proposition that ‘our Constitution should start from the village and work upwards to the Provinces and to the Centre’ was at variance with the basic features of a modern Constitution in that the latter dealt with the structure of Government at the central level, and in a Federation, at the central and state levels. He then posed a series of questions: ‘Is it suggested that the Indian Constitution should deal not merely with the structure of the Centre and of the units but should go down to the village? In other words, is the Indian Constitution not merely to deal with the executive, legislative and judicial organs of the Centre and of the Provinces, but also to create and deal with similar organs for the district, the district, the subdivision the thana, the chowkidari union and the village?” Touching upon the district administration, he continued: “Are we to have in the Constitution full specifications of a district executive, a district legislature and a district judiciary? At present we have no district legislature but only certain administrative bodies, such as district boards and municipal boards, with limited power of making bye-laws for certain purposes; the district executive is provided for in the Land Revenue Acts or Regulations, Police Acts and so on; the district judiciary is provided for in Civil Courts Acts, the Criminal Procedure Code and the like. Is it suggested that these and similar provisions should be incorporated in the Constitution itself?” This brief but authoritative, exposition highlighted the intricacies of the inherited administrative structure. The moral was clear. “I fear that if we do this, not merely for the district but down to the village, the Constitution will be of inordinate length and will be even more rigid than it is at present. It seems to me that while it may be possible to create panchayats and similar bodies to function as electoral colleges for the provincial and central legislatures, it would be impracticable to endow them or other bodies at the same level, with specific administrative or legislative judicial functions by provisions inserted in the Constitution itself”.

B.N. Rau’s advice was, in effect, a plea for Continuation of the existing system where panchayats and higher tiers of local self-

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Government were a matter of auxiliary legislation; panchayats as the building blocks of a decentralized – and non-violent – political and economic order were, it appears, outside his conceptual framework.

The debates in the Constituent Assembly by and large reflected this trend. It looks as though but for the trenchant criticism of the village by B.R. Ambedkar, the debates would have been less exciting Ambedkar’s views were quite similar to those expressed by Nehru in reply to Gandhiji’s letter in 1945. If Nehru did not see any special virtue in villages just because they were villages, underlined the advantages of science and technology, and appreciated urban culture, Ambedkar roundly condemned the village as a ‘sink of localism, a den of ignorance, narrow-mindedness and communalism.’ He joined issue with those who thought that Melcalfe’s account… ‘Dynasty after dynasty tumbles down…but the village communities remain the same’ – was something to be gratified about. He said: “That they (villages) have survived through all vicissitudes may be a fact. But mere survival has no value. The question is on what plane they have survived. Surely, on a low, on a selfish level. I hold that these village republics have been the ruination of India.” “I am glad” he declared with an air of finality, “the Draft Constitution has discarded the village and adopted the individual as its unit”. Thus, from his point of view, the new Constitution ‘incorporating western theories’ was preferable to an alternative Constitution ‘raised and built upon village panchayats’.

Several members took exception to what Ambedkar said; on the whole, they seemed to take exception to the tone rather than the content. H.V. Kamath criticized the attitude of Ambedkar as typical of the ‘urban high-brow’. He paid glowing tributes to the Father of the Nation for teaching the love of villages and exhorting his countrymen ‘to strive for panchayat raj’. He, however, did not plead for any drastic revision of the Draft Constitution in terms of Gandhiji’s ‘panchayat raj’; instead he commended the scheme of janapadas launched in his state of C.P. & Berar, a product of auxiliary legislation and hoped that it would come to ‘fruition and be an example to the rest of the country”. T. Prakasam spoke in a similar vein, and tried to put a facourable

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interpretation on the observations of Metcalfe – ‘one great man of those old days of the British’. He, however stated frankly: “I do not advocate for one moment today that village panchayat should be such as described by Metcalfe under those circumstances. Village panchayat should be one which is up-to-date which gives real power to rule and to get money and expend it, in the hands of the villagers”. He was thus pleading for a village panchayat as a more effective and efficient unit of local self-Government, and not for a different Constitutional order. Alladi Krishnaswami Ayyar put the whole matter in a bald legal language! “….the Constitution does not give sufficient importance to village communities which are an essential feature of India’s social and political life. With the large powers vested in the provincial or state legislatures in regard to local self-Government and other matters, there is nothing to prevent the provincial legislatures from constituting the villages as administrative units for the discharge of various functions vested in the state Governments”. N.G. Ranga felt unhappy over the uncomplimentary observations of Ambedkar about the village panchayats, and reminded his party men that ‘we as Congressmen are committed to decentralization’. One could perceive in the debates a distinction between advocacy of decentralization and advocacy of a new kind of polity with village republics or panchayats as the basic units. The refreshing candour of M. Ananthasayanam served to bring this distinction into sharper relief. He posed a basic question: “As we are situated today, is it at all possible immediately to base our Constitution on village republics?” Perhaps to mollify the sentiments of some of his colleagues, he added: “I agree this ought to be our objective.” Having put them at ease he asked an interesting, if not ingenious, question: “But where are these republics?” And answered : “They have to be created”. His advice, which ultimately prevailed, was to the effect that a provision should be included in the Directive Principles ‘which would insist upon the various Governments that may come into existence in future to establish village panchayats, gives them political autonomy and also economic independence in their own way to manage their own affairs’. Mahavir Tyagi vehemently protested against

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Ambedkar’s remarks about the villages and pleaded for a due share for villagers in the governance of the country. N. Madhava Rau told the Assembly in a matter-of-fact way that in his State of Mysore all officers from the Dewan to the Tahsildar were giving personal attention to the condition of the villages. “It is true, some villages are chronically faction-ridden and indulge in petty tyrannies, or remain the strongholds of untouchability. A considerable number are apathetic or even moribund. But, about 30 per cent could be classed as good….I am sure that experience in other parts of the country is more or less the same”. Like B.N. Rau, Madhava Rau, too showed a preoccupation with administrative details in which the Platonic idea of Panchayat raj had hardly any place.

Nearly 20 other members participated in the discussion. Most of them took exception to Ambedkar’s wholesale criticism of the village. Very few showed a clear appreciation of the implications of the Gandhian Constitution. Shibban Lal Saksena referred to ‘Mahatma Gandhi’s own Constitution, of which we have an outline by Shri S.N. Aggarwal’; but he made a novel suggestion that the Upper House should comprise members elected by the village panchayats instead of by the provincial legislatures as proposed in the Draft. Ultimately, the following amendment moved by K. Santhanam on November 22, 1948, was accepted by the Assembly. “The State shall take steps to organize village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-Government”. The amendment did not make any difference to the structure of the Draft Constitution; it was to be a Directive Principle of State Policy, and envisaged village panchayats as units of ‘self-Government’. One scholar has observed: “Even so it appears that Assembly leaders intended to omit all mention of panchayats from the Constitution and only under strong pressure did the leadership grudgingly agree that an article concerning panchayats should appear in the Directive Principles”. Nearly 11 months ago (December 21, 1947) Gandhiji, referring to the report that ‘there is no mention or direction about village panchayats and decentralization in the

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foreshadowed Constitution’ said: “It is certainly an omission calling for immediate attention if our independence is to reflect people’s voice. The greater the power of the panchayats, the better for the people…” The proposed amendment would, on acceptance, constitute a ‘direction’; but it was silent on the question of ‘decentralisation’ in the Gandhian sense of the term. With regard to the powers of the panchayats, Santhanam struck a cautious note. Moving the amendment, he said: “What powers should be given to a village panchayat, what its area should be and what its function should be will vary from province to province and from state to state, and it is not desirable that any hard and fast direction should be given in the Constitution”. All this boiled down to the line taken by B.N. Rau that these details could be left to auxiliary legislation. After Ambedkar signified acceptance of the amendment, speaker after speaker expressed warm support in a vein which suggested that it marked a victory for the Gandhian position. T. Prakasam saw ‘light and prosperity before the country’. Surendra Mohan Ghose thought that ‘our village people are so much familiar with this system that if today there is in our Constitution no provision like this they would not have considered this as their own Constitution…..’ Seth Govind Das hoped that ‘a time will come when we shall be able to witness the ancient glory of our villages’. V.I. Muniswami visualized a similar possibility, and V. Subramaniam described the Amendment as ‘very essential’. L. Krishnaswami Bharathi extensively quoted Gandhiji to drive home the stress on decentralization and self-sufficiency. Santhanam skillfully evaded these basic issues by rhetorically suggesting that ‘self-Government is not merely political. It may be economic or spiritual.’ Bharati ‘wanted that it should be made more explicit so that Mahatmaji’s soul will be very much pleased.’ As far as the disposition of the Constituent Assembly was concerned, this turned out to be the swan song of the Gandhian plank on Panchayat raj. Ambedkar’s intervention - ‘I accept the amendment, I have nothing more to add’ – was followed by the Vice-President’s observation “I have not yet found anybody who has opposed the motion put forward by K. Santhanam. There might be different

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ways of praising it, but at bottom and fundamentally, these speeches are nothing but praising the amendment”. The amendment was accepted; it became Article 40 of the Constitution finally passed by the Assembly.

Article 40 now has become the prime Article according to which village Panchayat Raj system has been set up. The freedom struggle was regarded as the gensis of Panchayat Raj system as per the Gandhian plan for village Panchayat Raj.

Conclusion

Thus the constituent assembly can be regarded as real architect for the modernizing of village panchayats. The age old village panchayats have enjoyed autonomy by maintaining their relations with their over lords. The same system the congress wanted to persist. Going through this agenda hectic deliberations were held in the constituent assembly.

Reference

1. Granville Austin, The Indian Constitution: Cornerstone of a Nation, Bombay: Oxford, 1972,

2. S.R. Maheswari Local Government in India, Agra: Laxmi Narayan Agarwal Publications 1970.

3. Pyarelal, Towards, New Horizons, Ahmedabad : Navjivan, 1959, emphasis added.

4. Malviya. Village Panchayats in India, All India Congress Committee, New Delhi 1956.

5. Shriman Narayan, Principles of Gandhian Planning, Allahabad: Kitab Mahal, 1960.

6. B.N. Rau, India’s Constitution in the Making, B. Shiva Rao (Ed) New Delhi: Orient Longmans, 1960, Emphasis added.

7. Panchayat Raj An Analytical Survey, M. Shiviah, National Institute of Community Development, Rajendra Nagar, Hyderabad.

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NATURAL LAW AND POSITIVE LAW - A COMPARATIVE STUDY FROM INDIAN PERSPECTIVE

Wasif Reza Molla*

Introduction

Positive law which is dramatically opposed to the theory of natural law distinguishes the question whether a rule is a legal rule from the question whether it is a just rule and seeks to define law not by reference to its content but according to the formal criteria which differentiate legal rules from other rules such as those moral etiquette and so on1. In a recent article HLA Hart has said that legal system is a “closed logical systems” in which correct legal decisions can be deduced by logical means from predetermined legal rules without reference to social aims, policies and moral standard. The moral judgment can not be established or defend, as statements of fact but can be by rational arguments evidence or proof2. Thus in that sense legal systems is made water tight against all ideological intrusions and all legal problems are counted in term of legal logic.3 So it seems that the predominance of analytical positivism corresponded to the consolidation of the modern state into a highly organized instrument of political organization claiming absolute authority in political matter while leaving considerable autonomy to the citizen in other matters. 4

But the question that arises is whether the notion of law is exhausted by the conceptions of positive law. The answer was given by then jurisprudence of Rome. By the side of the positive law, the jus civil recognized and enforced on Romans by the Court of the Civitas Romana. The Roman Jurist in process of time set the conception of jus natural. This jus natural may be defined as a law imposed on mankind by common human nature that is by reason in response to human

*Assistant Professor of Jyotirmoy School of Law 1 Salmond on jurisprudence PJ Fitzgerald P. 25 2 Hart legal positivism 12 of 20q (1`963) for arguments on difference between analytical

jurisprudence and legal positivism 3 Legal theory 299 w Friedman 4 Friedman Pg. 290

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needs and instincts5. This reasons of human being is nothing but a search of mankind for absolute justice. That is why the idea of natural law in last 2500 years has appeared in some form or other6. Though natural law is not in that sense an actual body of law recognized and enforced by Court of law it is rather a sprit than the letter of law, as spirit of human interpretation present in the mind of the jurist and judges which affects the law that is actually enforced. It is what the Supreme Court follows in Interpretation Article 21 of the Constitution instead of going to the letter of law but by going through spirit of law. Natural Law became something more than a spirit of human Interpretation subtly penetrating and quietly affecting the administration of positive law.

The Conflict of Natural Law and Positive Law

Law, according to positivism, is only positive law, that is, statute law and such customary law as is recognized by the state. More precisely, positivism characterizes as law to be applied by the judge and alone to be considered by jurisprudence those norms only which are enacted as such by the factual and published will of the legislative organ in due conformity with constitutional law or which are explicitly or tacitly admitted by it .The contrast between positive law and natural law is on Lege feranda and Lex lata .Natural law always refer law as it ought to be, it attempts to discover those rules which should be followed because they are supreme good in them selves with reference to idealistic, theological or rationalist arguments. Analytical school boasted that law should be as it is mad by man. Proponents of analytical school contend that this is law whose existence can be proved scientifically in the sense of its being physically observed, located and touched. In disclaiming the position of natural law, positivist accuse natural law theorists of confusing the ‘is’ with the ‘ought.’ Put differently, the contention is that natural law tends to derive an ‘ought’ proposition from an ‘is’ proposition. This

5 Modern Jurisprudence by A. R. Biswas P. 4 220 6 Friedman Pg-95

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muddles up the system of thought7. In the question of justice positivist asserts that the question of justice is an ethical question, not a juridical one where as naturalist regards justice as the foundation of law as its constitute the bottom layer of justice which is indispensible to the legal life of an organized society. However the word justice and natural law should not be used as synonyms .The natural law forms merely the bottom layer of just order of law comprising those minimum standers of fairness and reasonableness without which there can be no genuine order of law. The concept of justice on the other hand also includes certain jural principles of general character which a particular political and social system regards as just and which play an important part in decision of cases even though these principles may not have found express recognition in a formalized source of law. As St. Augustine put unjust laws are, not so much laws but acts of violence unjust laws lack the moral force of law8 but the positivist regards law as an aggregate of governmental commands designed to keep order in society and inclined to uphold the validity a of such commands regardless of their intrinsic and substantive content. In their opinion, law constitutes a social mechanism engendered by certain formalized procedure as long as the constitutional and institutional directives for the production of valid law are observed, law has authoritive force and must be applied and obeyed regardless of reasonableness of enacted measures.

According to this view justice is not an independent criterion to be used in determining the rightness of law. On the contrary the concept of justice tends to become complete merged in the notions of positiviveness and formal legality.

In constitutional states, however, the typical positivist runs into difficulties. Particularly when it comes to applying the law, he must inquire not only whether the path of legislation prescribed by the constitution has been followed, but also whether the law (including

7 Jurisprudence and Legal Theory II COURSE WRITER: Dr Simeon Igbinedion Faculty of Law, National Open University Of Nigeria 8 Natural Law by ROBERT P. GEORGE Harvard Journal of Law & Public Policy [Vol. 31]

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customary law) is not in conflict with the higher norms of constitutional law. And there the legal positivist readily runs afoul of natural law. To the positivist, many constitutional provisions are not genuine legal norms but rather programmatic utterances of the constituent or constitution-making power. The positivist characterizes constitutional preambles as a mere guiding rule, not as a binding norm for either lawmaker or citizen9.

Natural Law and Positive Law in Ancient Indian Jurisprudence

The analytical positivism of English legal system when examined in the light of ancient Indian jurisprudence would bring certain interesting contradiction. In the Austin positivist sovereign being the law maker is consider superior to law. On the contrary in the ancient Indian legal system law is given highest place by which the subject as well as ruler were equally bound .Thus the law namely dharma occupied a prime place in Indian legal system the king or the ruler was to rule according to dharma. The dharma consisted in observance of truth non violence and right full mode of moral conduct which hold or sustain men together in harmony and establish social solidarity .The rules or the command of the king were contained in Vedas ,smritis which described traditions or customs as revealed and collected by sages. They emphasized on sadachar i.e conduct of a virtuous man.

Thus it would be seen that law morality and religion were co-existing concepts unlike analytical positivism of Austin which completely divested the notion of morality and justice from law.

Though the element of sanction was found in the Indian legal system by way of danda which means punishment but the king can not use his power of punishment arbitrarily as in Austinian sense.

Apart from the fact the modern Indian Judicial system having been framed on the British Pattern the fine principles of equity, justice

9 Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy [1936]

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and good conscience and natural justice occupy an important place in the Indian Law. The Higher values of universal validity, righteousness duty, service to mankind, sacrifice non violence etc. were already incorporated in the ancient legal system. For ancient Indian Philosophers natural law was not an ideology in western sense of term but it was righteous code of conduct prescribed for living and orderly life in society. The Vedic concept of Rita has reference to law of nature which where applied to mortal world signifies the moral law or the eternal law of right and reason.10

Introduction of Positivism in India

The advent of British rule in India brought about radical changes in the then existing legal system .The improvised system was based on British imperialism which sought to impose English laws and political institutions in India, Macaulay the law member of the Governor-General-in-Council rejected the ancient Indian Legal and political institutions as “clotages of Brahinical superstition” and condemn them as an apparatus of cruel absurdities” 11 Macaulay brought about codification of laws in India. There codified laws were akin to Austinian concept of positive law having the element of certainty, definitions, effective enforcement and sanction. The British King in parliament was the Supreme Sovereign authority to make law for the Governance of India and they were above law enacted for Indian. The subjects were bound to obey this law. Thus all the characteristic of positive law, namely, command, duty, sanction, sovereign etc. were present in the legal system introduce by British rules in India.

It is in this sense that the analytical positivism found its place in the Indian legal system during British Rule. The theme of natural law has also helped to develop India legal system. Large number of principles of natural law been embodied in the legal system of various countries like England, united states India. As a result of long British

10 Goklhale B.G. Indian Tought Through ages. 11 Dr. Dhyani’s judgemental of jurisprudence – The India approach (1997 ed) P. 143.

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rule certain principle of natural law enshrine in English law automatically found place in the Indian law .The principle of natural justice doctrine against bias ,judicial review, reasoned decision. The constitution of India also embodied a number of principle of natural law. The provision relating to preamble, fundamental right and

directive principles of state policy show that the framer of the Indian constitution were particularly conscious about the inclusion of natural right in the constitution .The provision of article 311 of the constitution which provides adequate protection to civil servants against arbitrary dismal removal or reduction in rank is also based on the principle of natural justice.

The Predominance of Positivism or Natural Law is found in India

The very fact that much of the common law introduce in India was codified is testimony to the obvious advantage of statute law over the principle of natural law but unfortunately much British Indian legislation denied the enjoyment of civil and political rights to the Indian citizen. Though they represent only a part of the lex loci of the country the rest being common law and principles of natural justice ,the statury corpus juris of India may be said to be more analogous to the great code of civil law system operating in France and Germany. Our system is a combination of the civil law type but based on common law principle which was develop by superior court in interpreting statute in the light of natural law principles. whenever statute law is absent the judges are guided by principle of natural justice. It would appear that these principle provide a strong basis to the law courts in India to decide cases not covered by statutes in constructive spirit to find out just solution of new problem of law. When a question arises as to what law is on a particular point we turn to legislation or rules which may exist .In their absence we turn to general principle and act accordingly. As in England there is always a struggle between common law judges and parliament supremacy on one hand and the introduction

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of equitable consideration justice on the other12. In India though there is no doubt on the supremacy of the parliament but there is always a confrontation between legislature and judiciary which resulted in many amendments in the constitution of India. In this respect Article 21 has been traditionally cited as an illustration of the attitude of the framers of the constitution13. If we go through the legislative history of art 21 then we find that art 21 originally passed as draft art 15 provided “No person shall be derived of his life or liberty without due process of law” but drafting committee suggested two changes in this article (i) the additional of the word “personal” (ii) the substitution of the word “except according to the procedure establish by law”14 the expression procedure establish by law was borrowed from art 31 of Japanese constitution the reason given for changes is that the concept due process was vague and flexible it appears that the framers were not very enthusiastic to use an imprecise expression based on the principle of natural law which may in future give some major power to the judges to veto the decision of democratically accountable legislature. How ever the paradox is that the article contrary to expectation of the framers of the constitution has become most convenient means to constitutionalise the principles of natural right and natural justice.

Judicial Approach to the Principle of Natural Law and Positive Law

In recent years the idea of natural justice have become more and more important and have been relied upon by Supreme Court of India in many decisions but this was not the picture when supreme court interpreted “personal liberty” and “procedure establish by law” in A.k Gopolan case15. In this case the Supreme Court made a very positivistic interpretation of the constitution treating articles guaranteeing the fundamental rights as narrow percept ignoring the boarder principle of natural justice on which the purpose and mission of the fundamental 12 Salmond on jurisprudence PJ Fitzgerald P. 133 13 Fundamental Rights and their Enforcement By Udai Raj Rai P215 14 Constitutional Law of India By H.M Seervai P.970 15 A.K.Gopalan v.Union of India AIR 1950 SC 27

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rights are based. The counsel for the petitioner in this case argued that the term law in article 21 should be understood in the sense of jus and not lex. In other words he submitted that procedure establish by law should be interpreted to mean fair and reasonable procedure established by law and not any procedure prescribed by system of positive law irrespective of the fact that it was wholly capricious and arbitrary .Supreme court rejecting the contention by majority held that the expression procedure established by law to mean any procedure prescribed by a piece of positive law, that the framers of the constitution designedly used the words procedure establish by law which carried a definite meaning in place of vague phrase due process of law.

Mukherjea J held that law in article 21 meant the state enacted law and did not carry with it any abstract notion of justice orfairness. DasJ said that subject to the limitation imposed by constitution the legislature was supreme in India .Therefore if with the sphere of its authority legislature abuse its power court could not provide any remedy. Patanjali sastri J too did not accept the proposition that elements of natural law or natural justice can be imported into the meaning of the term law in article 21.For him too ‘law’ meant positive law enacted by a competent legislature. However Fazl Ali J .totally disagreed with the approach of the majority judges with regard to the meaning of` procedure establish by law` he held that ‘law’ meant valid law and procedure meant certain definite rule of proceeding and not something which was a mere pretense for the same. 16 But this restrictive interpretation of article 21 has not been followed by Supreme Court in its later decisions. Finally in Maneka Gandhi17 case supreme court not only overruled Gopolan case but also held that mere prescription of some kind of procedure is not enough to comply with the mandate of art 21 .The procedure prescribed by law has to be fair, just a reasonable and not fanciful, oppressive or arbitrary otherwise it should not be a procedure at all and all the requirements of article 21

16 Fundamental Rights and their Enforcement By Udai Raj Rai P224 17 Maneka Gandhi v. Union of India AIR 1978 SC 594

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would not be satisfied. A procedure to be fair or just must embody the principle of natural justice, the court said; “Law’ should be reasonable law and not enacted piece of law” By accepting the concept of natural justice as one of the essential component of law it is submitted that the court has imported the American concept of “due process of law” into our constitution. Like due process of law natural justice is also not rigid or mechanical concept. The rules of natural justice are to be applied in the context of the situation in which it is to be applied.

The court itself quoted the observations of Magarry,J who described natural justice “as distillate of due process of law” 18 .In A.K.Karipak v union of India19 the s supreme court observed that the aim of the rules of natural justice is to secure or to put in negatively to prevent miscarriage of justice .The basic structure theory prefunded by Supreme Court in kesavananda Bharti v. State of Kerala20 furnishes the best illustration of judiciary zeal to incorporate the principle of natural in the constitutional jurisprudence. Adopting the twentieth century revivalist approach to the natural law philosophy the Supreme Court ruled that fundamental rights are not absolute and immutable but they are relative in nature and changeable in order to build a just social order. The supreme courts contribution to human rights jurisprudence through judicial activism and public interest litigation has received people’s faith in justice delivery system in India. These new development proves that the principle of natural law and natural justice which embody highest values of life ,liberty equality and justice have gained increasing importance in India so that a social order with just and human condition may be accomplished as contemplated by framer of the constitution.

Conclusion

It has already been explained that a legal system in order to fulfill its function properly, must aim at the creation of order as well as

18 Constitutional law of India by Dr.J.N.Pandey pg 213 19 AIR 1970 AC 150 20 AIR 1973 SC 1461

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the realization of justice. In healthy legal system the values of order and justice are not normally at cross-purpose, on the contrary they are locked together in a higher union. A legal system that cannot meet the basic demands of justice will be unable, in the long run, to provide order and peace in society. Positive philosophy which regards law as an aggregate of governmental commands designed only to keep order in society overriding the realization of justice and reasonableness of the enactment, which may laid the legislature to enact a wrongful statute. When the outer bounds of justice is transgressed by the law maker as a protective armour court must give preference to the principle of natural justice. In democratic country like India it is the function of the legislature to make law and not the judiciary but when ever legislature makes any law ignoring the basic principle of natural justice or against the mandate of the Constitution judges of the superior courts exercise its power of judicial review to establish the principle of natural law. This may be at least indicate that the gap between the two groups is not as wide as it used to be, position are less clear cut now . It further underlines the point that classification into “naturalist “and “positivist” applies to views and not individuals certain doctrine may be labeled naturalist” and other “positivist” but the prevalence of positivism or of the natural law depends on the types of state or forms of government. So we can conclude that though in India there is predominance of positive law over natural law as the legislature is the ultimate authority to make law but natural law makes its presence felt whenever there is question of just and reasonableness of law and whenever judiciary tries to establish the spirit of the law and not only black letter of law while deciding cases.

Bibliography

1. Studies in Jurisprudence and Legal Theory · Dr. N.V.Paranjape,

2. Salmond on jurisprudence PJ Fitzgerald

3. Dr. Dhyani’s judgemental of jurisprudence – The India approach (1997 ed)

4. Hart legal positivism 12 of 20q (1`963)

5. Modern Jurisprudence by A. R. Biswas

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6. Legal theory 299 w Friedman

7. Goklhale B.G. Indian Tought Through ages

8. Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy [1936

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PPOOLLIICCYY DDEETTEERRMMIINNAATTIIOONN,, PPOOLLIICCYY EEXXEECCUUTTIIOONN AANNDD PPOOLLIICCYY

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Rukma George*

Prelude11

In contrast to the institutions of monarchy or oligarchy prevalent in other parts of the world, ancient Indian jurisprudence advocated the absolute supremacy of law through the principles of Dharma incorporated into the philosophy of Rajadharma, a form of transpersonalised system signifying that ‘Law’ was the King of Kings and its superiority was to be achieved through principles of Natural Justice. On the adoption of the Constitution, this very concept of Justice was seen reflected in the Preamble2 and Article 142(1).3

In the words of F. Friedmann ‘Justice is an irrational concept, but the only claim one could rightfully make would consist in eliminating everything arbitrary save that is implied in affirming the values at the base of the system.’ Justice needs to be done strictly in accordance with law. When a promise of law is delivered, justice is the natural result, or in other words, non-compliance of any law inevitably results in an injury caused or rights abused, therefore an injustice.

Judicial process aims to provide Access to Justice. ‘Access to Justice implies continuing social development, involving a constant debate about how much access to provide and how much and what kind of justice should be the result’.4 In Constitutional democracies, it forms an integral part of the Rule of Law.5 In order to evaluate whether

* LL. M (Business Laws), National Law School of India University, Bangalore 1 The inspiration for this article was drawn from the Lectures of Professor T Devidas, Senior Professor, NLSIU. 2 Justice - social, economic and political and Equality of status and opportunity. 3 Directs the exercise of jurisdiction by the Supreme Court to do complete justice.

4 Mauro Cappelletti, Access to justice and the Welfare State, 2 (European Law Institute, 1981). 5 Faisal Bhabha, “Institutionalizing Access-to-Justice: Judicial, Legislative and Grassroots Dimensions” UQLJ 140 (2007).

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judicial process in India is worthy of guaranteeing Access to Justice gives rise to a new philosophy of study in the context of Power or Cratology, and may throw open a new dimension altogether.

Role of Power in Law

A core complex of the meaning of Power essentially deals with the capacity of the persons or collectives ‘to get things done effectively’.6 Upon conducting a Cratological evaluation, the attempt should be to analyse how power presents itself in social relations - political, social, economic, religious, moral, cultural among others, and the delicate balance it sustains in every society. The internal infrastructure of every socio-political society, whittles down to the struggle for power and this power can be counterbalanced only by providing for rational arrangements for its exercise and control by a set of fixed rules, embodied in formal documents like the Constitution. This is the solitary way a harmonious equilibrium can be struck between the authority of the power holder and the liberty of those over whom such power is wielded. Underpinning the entire analysis is the fact that power operates reciprocally between those who hold and exercise power, called as the ‘power holders’ and to those whom it is addressed, the ‘power addressees’.

According to Chapter 13 of Julius Stone, six aspects of power relations bear sufficiently on Lawyer’s concern. 7These are:

Coercion Spectrum: It symbolizes the degree of coercion i.e. amount of sanction that is present in the exercise of power.

Ethical component spectrum: The extent to which the influence of those who wield power arises from their identification with ethical convictions which those subject to their influence also share.

Interest Affected Spectrum: It shows the range of interest over which the relation between the power holder and power addressees

6 Talcott Parsons, On the Concept of Political Power, 232 (Proceedings of the American Philosophical Society, 1963). 7 Chapter 13, Julius Stone, Social Dimensions of Law and Justice, 590 (Universal Law Publishing Co. Pvt Ltd, 1999).

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stands or simply put, how many people are going to be affected by the virtue of the exercise of that power.

Influence Spectrum: This aspect of power is strikingly similar to the coercion band in the fact that it expresses the degree of influence which transpires by using of power on the attitude and conduct of the power addressees.

Head count spectrum: It is the range of ‘power relation’ in terms of the number of persons who are subject to the influence which it carries.

The time count spectrum: It narrows down to a single point, that ‘power relations’ vary greatly in their stability through time. The essence being that one cannot turn back in any point of time and thus the state must ensure that Rule of Law is not violated at any point of time.

Also, “....the purpose would be served best if several power holders mutually shared and co-operated in the exercise of political power, instead of one power holder monopolizing it all. Where power is shared, government is limited and, being limited, is restrained and controlled”.8

Therefore there is a need to control power. One of the best means being separation of these powers themselves.

Separation of Power-Power Configuration in an Intelligible Constitutional Framework

‘Constitutionalism’,9 a pattern of Government persistently advocates shared exercise of power. Law is merely an apparatus to curtail any arbitrary exercise of power – it is a restrictive force in social life and this is the very reason why developed Legal Systems attempts to focus on shared exercise of power rather than a concentrated

8 Karl Loewenstein, Political Power and the Governmental Process, 7 (University of Chicago press, 1965). 9 Id.

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exercise of power.10 However, albeit colloquially spoken of as the separation of power, the term ‘power’ is only figurative and operationally it is actually separation of functions among the different state organs.11 Nevertheless, the three unique ways in which the Indian Constitution has attempted to control power is: Denial, Direction and Division of the Power within and amongst the Executive, Legislature and the Judiciary. Denial is reflected in Part III of the Indian Constitution; Direction in Part IV and Division of power is felt through the various provisions of the constitution which provides for the separation of powers between the executive, legislative and the judiciary, a stellar example being the seventh schedule.

For a better understanding of this Constitutional Scheme, It is also pertinent that the strict notion of classical tripartism between the Executive, Legislature and the Judiciary be analysed based on the distinction between Policy Determination, Policy Execution and Policy Control.12 While Policy Determination refers to the major choices of policy that state community is called to make, the primary mechanism for its performance being legislations; Policy Execution is the instrumentality for execution of such policy decisions. When powers are shared amongst several power holders, the individual power holder is restrained and controlled by an intricate system of ‘checks and balances’ which is the crux of Policy Control.

Thus, the Premise

While drawing a parallel between the understanding of Power and its role in Judicial Process, a few premises may be built.

10 Articles directly connected with the Executive powers and duties are Art 53 (1), Art 154 (2), Art 172, Art 161, Arts. 62, 63, 164, 213, 85, 77, 352, 360, 365, 73, 75, 78, 148, 155, 111, 76, 165, 148, 217, 222, 162, 372, 310, 240, 124, 370, 371, 372, 373, 316, 324, 223, 224, 194, 177, 176, 117, 200, 239 (a) (b), 240, 292, 293, 360, 331 (4), 333, 339, 340, 341, 342, 44, 380(b). Articles concerned with the legislative powers and duties: 245, 246, 247,248, 105, 107, 109, 118, 119, 120, 114, 117, 122, 327, 328, 341, 253, 368, 261, 271, 275, 286, 302, 303, 304, 307, 309, 312, 271, 275, 286, 302, 303, 304, 307, 309, 312, 312, 323, 370, 371, 372 and 241. Articles concerned with the judicial powers and duties: 124 to 140 and Articles 214 to 237. 11 Supra note 8. 12 Id.

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Power is purposive i.e. Power is granted to exercise a Duty. Law is structured power and the measure of power is only upto what

law allows. The dominating objective of the Judiciary is basically Policy Control

and adjudication of disputes is only its ancillary duty.

‘Judicial duty’ has been explained by Justice Marshall in the case of Madbury v. Madison,13 as ‘it is emphatically the province and duty of the judicial department to say authoritatively what the law is. Those who apply the rule to a particular case must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.....this is the very essence of judicial duty’.

Power Configurations in the Indian Constitution

It is fascinating to scrutinize the varying power configurations and the myriad sources of justice provided in the Constitution and for that reason, the first phase where justice could be truly delivered is by proper implementation of the administrative actions under Article 256.

Article 256 of the Constitution deals in broad-spectrum with administrative relations and in particular, with the administrative mechanism in which justice is delivered. It is a ‘Duty Statement’ both on the State as well as the Union. For easy understanding, the essence of Article 256 may be split into two;

Duty upon State: Executive power of the state shall be ‘so exercised to ensure compliance’ with the laws made by the Parliament and any existing laws which apply in that State.

Duty upon the Union: The Executive power of the Union shall ‘extend to the giving of such directions to a State’ as may appear to the Government of India to be necessary for that purpose.

13 5 U.S. 137 (1803).

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These duties are vested in and administered through the Governor or Officers subordinate to him in the State14 and the President or officers subordinate to him in the Union,15 and strictly in accordance with the Constitution. However, the caveat under Article 257(1) mandates that the executive power of every state should be so exercised as not to impede or prejudice the exercise of the executive power of the Union. Therefore, the hierarchical structure inbuilt in the Constitution clearly implies that it is the directive of the State to comply and administer all laws and it is upon the President, on whom is vested the executive power of Union, to supervise this entire administrative behemoth to ensure that every applicable law is implemented. If the State and the Union thereby ensure strict compliance with law, the perceivably illusory promise of justice according to law becomes perceptibly delivered. This, in simple is the blueprint of the mechanism envisaged in the Constitution to administer justice and, it is upon its failure, the functions or responsibilities of other organs are triggered as a corrective measure. Conceivably, it may be asserted that the first checkpoint of the people, in their quest for justice, is the proper implementation of administrative duties!

In fact, even during a breakdown of the system, there are certain innate mechanisms in the constitution to redress such instances, as may be seen in Article 355, which envisages, that it shall be the duty of the Union to ensure that the Government of every State is carried on in accordance with the Constitution. Also, as per Article 356, if the President, exercising his duty under Article 256, is of the opinion that the Government of the State cannot be carried on in accordance with the Constitution, he may issue a proclamation and assume such functions to himself and fulfil them. And the President sources his power to act so, vide Article 256 r/w Article 60 wherein his oath mandates him to ‘Preserve, Protect and Defend’ the ‘Constitution and the Law’.

14 Art 154 (1) of the Constitution of India, 1950. 15 Art 53(1) of the Constitution of India, 1950.

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An ideological summary would thus conclude that, Article 256, r/w Article 257(1) and Article 356(1) also ensures justice, though legally, this is a suo motu exercise in delivering justice, as envisaged under the Constitution, which in other terms may be termed as ‘Administrative Adjudication’. Encompassing it within the parameters of Hohfeld’s diagram, this reflects the duty of the State to protect its people against intrusion into their rights and liberties and to inquire into and redress the injustices done to them.

For failure of this duty, which inevitably affects the legitimate interests of others, the Executive functionaries, being public servants according to Section 21 of the Indian Penal Code, could even be made liable under Section 166 of the IPC.16

Why Does Article 356 Remain Infective?

Unfortunately, Article 256 remains perceptibly ineffective, and the reason for the same may be attributed to the wrong notions about the form of Government that we have, ironically, as advocated by the Executive and Judiciary themselves. It is fundamentally wrong to assume that we have a ‘Parliamentary form of Government’, modelled on the British system and that President is only a nominal head. This has resulted in an unforseeable alteration in the status of the President itself. This disturbing perception is the clear outcome of certain judicial decisions and consequent legislative actions via amendments, which has distorted the power arrangement from that originally envisaged in the text of the Constitution.

An illustration of such an uncertainty originated in 1955 itself, in Ram Jawaya Kapur v. State of Punjab,17 where the SC held that India has a Parliamentary form of government and the President was bound by the advice of the council of ministers. Meanwhile, in

16 Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. 17 AIR 1955 SC 549.

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Shamsher Singh v. State of Punjab,18 the SC held that the President is only a constitutional or formal head of the Union and he exercises his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Minister. Two years later, to validate this stand taken by the Judiciary, the 42nd amendment amended the text of Article 74 of the Constitution as follows.

Article 74 prior to the 42nd amendment stood as: ‘there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions’.

Article 74 post the 42nd amendment stood as: ‘(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice’.

To give more vigour to the provision, the 44th amendment in 1978 added a proviso that permitted the President to send the advice back for reconsideration, but if the Council of Ministers sends the same advice again to the President then the President must accept it.

The natural corollary and also, the dangerous outcome of the above was that the executive power of the President, who as per Article 53, was to act ‘only in accordance with the Constitution’, today must act ‘according to the aid and advice of the council of Ministers’. This is a singular huge blow to the power arrangement and has destroyed the transpersonalised power structure envisaged in the constitution.

The Transition of Indian Constitution from Normative Nominal

Justice in its simplest connotation may be said as ‘giving one his due’. When the law as it ‘is’ falls short of the law it ‘ought’ to be, a person is said to not have received his due. The paramount duty of the

18 AIR 1974 SC 2192.

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judiciary is ‘Ordering of the Fact’19 which is to examine and determine the state of facts by which a person has been wronged and then to approximate these facts to the requirement of law and ensure the implementation of such laws. Resultantly, when the Judiciary attempts to provide him what he ought to have received against what he has, by providing him a relief, it is said to approximate ‘is’ to ‘ought’. Such being the milieu, the purpose of giving the power of absolute and final adjudication to the Supreme Court under Article 141 was to maintain the sanctity of the Grund norm – the Constitution. However, the result of its actions has been that the normative constitution that we adopted has now turned out to be a nominal one. There have been few occasions where the judiciary has erred gravely by failing to exercise its policy control functions.

The first deviation was inaugurated by the Court by coinciding it with the very first year of constitutional adoption. In the case of A.K. Gopalan v. State of Madras,20 the Court held that Article 21 excluded enjoyment of the basic freedoms guaranteed under Article 19 because Article 19 postulates legal capacity to exercise the rights guaranteed by it and if a citizen loses his freedom by detention he cannot claim the rights under clauses (a) to (e) and (g) of Article 19. Consequently, the court outrageously held that a law of detention could not be challenged on the touchstone of Article 19. The country’s jurisprudence was plagued with the question as to how a fundamental right could be interpreted to the complete exclusion of another fundamental right.

By and large, it is evident that the role of the judiciary is policy control and not policy making, which realm it has clearly treaded into. If at all the Executive has infringed upon the rights of others, all that the judiciary is enabled to do under the Constitution is to direct the administrative department to carry out its function effectively or to initiate an admonishment in the context of Section 166 of the IPC. Therefore, there is hardly any justification for Apex Court to issue rules

19 Chapter 14, Julius Stone, Social Dimensions of Law and Justice, 594 (Universal Law Publishing Co. Pvt Ltd, 1999). 20 AIR 1950 SC 27.

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or guidelines as in Visakha v. State of Rajasthan21 or D.K. Basu v. State of West Bengal.22

One of the resounding yet relatively unheard of mistakes committed by the Supreme Court was in Champakam Dorairajan v. Sate of Madras23 where the Court upheld reservation made through an ‘Executive Order’ not having a force of law. According to Articles 15 and 16, reservation could only be made in pursuance of a law and not by merely passing an executive order.

The Supreme Court failed to analyse the basic functioning of our Constitution, as a controlling constitution while rendering its decision in Rameshwar Prasad v. Union of India.24 Whilst criticizing the Governor who ordered for dissolution, the Court held that the dissolution itself was unconstitutional. However, it failed to give sufficient reasoning for its statement that ‘status quo ante’ cannot be restored. Such a formulation strikes at the root of deductive reasoning that we have adopted. If the dissolution was unconstitutional, no legal difficulty existed so as to set aside the order of dissolution and order the restoration of the assembly so dissolved.

In the case of Golaknath v. State of Punjab,25 the Supreme Court brought out a very notorious doctrine of prospective overruling. The court generally overrules a law, which is void. By prospective overruling, the present legal position exists as it is, but with regard to future transactions, the law as overruled would apply. The SC on unsubstantiated reasons decided to permit transactions based on law which had been declared void and unconstitutional by the Court itself. This is a clear case of negation of the time count spectrum. Equally shocking is the judicial sanctity given to retrospective laws as time never runs backward and according to Dicey, the very concept of retrospective legislation is the negation of Rule of Law.

21 AIR 1997 SC 3011. 22 1997 (1) SCC 416. 23 AIR 1951 Mad 120. 24 (2006) 3 SCC 1. 25 AIR 1967 SC 1643.

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Another gloomy and ill constructed decision was that of Kihoto Hollohan v. Zachillu.26 The unambiguous aim of the Xth schedule which introduced Anti-Defection law was to prevent a Parliamentarian from voting against the interest of his own party or simply put, an instrument to mute the dissent of party initiative by its own members. The amendment made defection and failure to vote an offence. Judicial interpretation of the widest amplitude could not have supported the premise that party politics is permitted within the Constitution. Even more distressing was that the Judiciary was deliberately unaware of this and upheld the constitutionality of this anti-defection amendment. It failed to exercise its inter organ control over the legislature to strike down this defacing legislation, a clear case of deliberate ignorance. Strangely, it used the doctrine of severability to hold paragraph 7 of the schedule which barred judicial review as unconstitutional. There can be no sense drawn to sever a provision as void from an already void law.

In A.R. Antulay v. R.S. Nayak27 wherein although the Court gave directions for the speedy trial of the accused, it declined to fix any specific time for conclusion of the proceeding, thus affecting the time count. In Sadasivaswami v. State of TN,28 the court stated that ‘inordinate delay in invoking the jurisdiction of the SC may be a ground for refusing to grant the relief.’ Relief under Article 32 is the petitioner’s rights and the Duty of the Court, not its prerogative.

S.C. Advocates On Record Association v. Union of India,29 the SC interpreted Article 222 of the Constitution, which read that President may after consultation with Chief Justice of India transfer a High Court judge. It went on to say that the ‘President in matter of appointment of Supreme Court and High Court Judges, is bound by the opinion of the Chief Justice of India, and the term ‘consultation’ used in Article 124(2) and Article 217(1) meant ‘concurrence’. By no stretch of imagination could the Supreme Court have interpreted consultation

26 1992 SCC Supl. (2) 651. 27 AIR 1988 SC 1531. 28 AIR 1974 SC 227. 29 AIR 1994 SC 268.

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with concurrence, which made the President bound by the decision of the collegiums. It thoroughly shattered the power arrangement envisaged in the constitution.

FFIINNAALL NNOOTTEE

Thus, the present system of administration of justice is inefficient, complex and riddled with procedural constraints topped by an unpredictable method of dispute resolution. Today, the three organs of the Government together have annulled the constitutional framework exclusively guaranteed for exercising their power and discharging functions. Not only have each of these bodies encroached into the sphere of working of the other, but also have failed to exercise their duty for which they have been given the power. The guarantee of parity of power on the principles of equality remains within the text of the Constitution, with little or no efforts made by any of the three pillars of democracy to bring this concept to life. This apparently fails to deliver justice in accordance with law. The Apex Court, plagued by myriad controversies has lost much of its charisma and glory, much of it being its own creation.30 Judges seem to be the ones who claim to be immune to all liabilities, owing to their functions, failing to realize that the only immunity granted are through the Judicial Officers Protection Act of 1850 and the Judges Protection Act of 1985 which only grant limited protection for very restricted reasons. Thus if the Tripartism of our Constitution, or atleast the Judiciary, doesn’t make a quick realisation and unlearn the philosophy behind their incorporation, the Constitution will not be able to deliver its promises and justice could hardly be imagined to be done!

30 The resignation of the chief justice of India Sri. K Subba Rao to contest as a candidate of the opposition for Union President ship is perhaps the best example.

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THE DOCTRINE OF IDENTIFICATION – AS A TOOL FOR ESTABLISHING CORPORATE CRIMINAL LIABILITY

Shreeparna Dutta

Introduction

Meaning and Evolution of the Doctrine of Identification

Historically, criminal law has been founded on the idea of individual responsibility and convictions were limited to human beings, as only they could posses the requisite mental and physical elements of crimes.1 Since corporations are artificial persons, law has treated them differently to accommodate this deficiency.2 However, rapid globalization and the growth of inter dependent economy which has paved the way to increased number of economic and white collar crimes by corporate entities, have actually led the common law countries to shift from the earlier perception of Societias delinquere non potent (a corporate can do no wrong), to the concept of corporate criminal liability.3 Though it is still at a very developing juncture, yet we can trace the transformation in corporate liability theory, from being held liable for strict liability offences, to being held liable vicariously, then being imputed with the criminal intent of its controlling mind and will and now finally held liable for organizational crime as part of corporate culture.

Meaning:

The concept of Doctrine of Identification finds its roots through various cases decided under the English Law.4 Until 1940s, the corporations were held liable either for strict liability offences or vicariously for the offences of their employees. LL.M., WBNUJS 1 Dr. Sanjeev Kumar, “Corporate Crimininology CORPORATE OFFENCES”, 247, (Bharat Law House, New Delhi, 2005) 2 Ibid 3 Supra note 1 at p.248 4N Meihra, “Doctrine of Identification”, (2011), Available at: http://legalservicesindia.com/article/article/corporate-criminal-liability-doctrine-of-identification-488-1.html Accessed on 08/09/2012

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However, corporations could only be held directly liable for offences involving mens rea when the courts in England decided that those who managed or controlled the affairs of a company could be regarded as embodying the company themselves.5 Which means that once the court accepted that the acts (including the state of mind) of its human agent could be in certain situation be regarded in law as the act of the corporation itself, criminal liability could be imposed on it for any offence.6

The Law Commission of England summarized the identification doctrine stating that the governing principle is that those who control or manage the affairs of a company are regarded as embodying the company itself; i.e for legal purposes, the individual and the company is merged into one entity.7 Thus, a company may be liable for a criminal offence when some definite officers have acted with the requisite level of fault.8

Evolution:

While the Identification doctrine for the purpose of corporate criminal liability evolves from the famous trio cases of 1944 in England, but, the doctrine originates from an English civil case of 1915, in Lennard’s Carrying Co. Ltd v Asiatic Petroleum Ltd,9 where the court laid down the alter ego theory.10 It held that an act by the supreme governing authority of a corporation (namely the managing

5 Amanda Pinto Q.C.& Martin Evans, “Corporate Criminal Liability”, 39, (Sweet & Maxwell, London, 2nd ed., 2008) 6 Ibid 7 Neil Cavanagh, “Corporate Criminal Liability: An Assessment of the Models of Fault”, 75 J.Crim.L. 414 (2011) 8 Ibid 9 [1915] AC 705 , HL 10 The court observed in this case: “A corporation is an abstraction. It has no mind of its own any more than it has a body; its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”

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director or controlling officer), constituted, for the purpose of the law of torts, an act of the corporation itself.11

However the doctrine was applied in any criminal case for the first time in DPP v Kent and Sussex Contractors,12 where the court took an expansive approach in determining which officers could be identified with the corporation and identified the corporation’s transport manager.13 Viscount Caldecote L.C.J. observed:

“The directors or general manager of a company are not its agents, they are something more. A company is incapable of acting or speaking, or even thinking except in so far as its officers have acted, spoken or thought. ”

According to Hallett J., it would be strange and undesirable if a body corporate desiring to obtain petrol coupons and furnishing dishonest information for that purpose should be able to escape the liability which would be incurred in this case by a private person.14

In R. v. ICR Haulage,15 the decision of the DPP case16 was specifically approved where the Managing Director, together with another was indicted with common conspiracy to defraud and the Court of Appeal upheld the indictment by imputing the state of mind of the Managing Director to that of the company.17

Similarly, in Moore v I. Bresler Ltd.,18 the last of the trio cases, the company was convicted of making false return with an intention to deceive, where the returns were made by the Company Secretary and the branch sales manager.

11 Simon Parsons, “The Doctrine of Identification, Causation and Corporate Liability for Manslaughter”, 67 J.Crim.L. 69 (2003) 12 [1944] 1K.B. 146 13 Ibid 14 Supra note 5 at p.40 15 [1944] K.B. 551 16 Director of Public Prosecutor v Kent and Sussex Contractors [1944] 1K.B. 146 17 The court held the following in R. v ICR Haulage [1944] K.B. 551: “A company may be convicted of conspiracy, only if at least one of the human beings (who has conspired) is a controlling officer of the corporate, acting within the scope of his authority.” 18 [1944] 2K.B. 515

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However, the precise nature of the identification doctrine, which stands at present, was articulated in 1972, in Tesco Supermarkets Ltd. v Nattrass,19 where the House of Lords limited the application of the identification doctrine. It was observed that only those corporate officials, who had been granted absolute authority by the Article of Association of the company, constituted the supreme governing authority of the corporation and could be identified with it.20 Hence, holding that the shop manager could not be recognized as a controlling mind of the company, the House of Lords provided a restrictive list of personnel consisting of senior individuals who represented the ‘directing mind and will of the company’ and were of adequate standing to be identified as the ‘company’.21 Once the ‘controlling officer’ was identified, then according to Lord Reid:

“He is acting as the company and his mind which directs his acts is the mind of the company. There is no question of the company being vicariously liable. He is not acting as a servant, representative, agent or delegate. He is an embodiment of the company or one could say, he hears and speaks through the persona of the company, within his appropriate sphere, and his mind is the mind of the company. If it is a guilty mind then that guilt is the guilt of the company.”

Hence, we see that the Doctrine of Identification was propounded to append liability for the crimes of the top officials, who are in charge of running the company, to the company and merge their individual identity with corporate identity to hold the company directly criminally liable.22

Comparison of the Identification Doctrine with Vicarious Liability Doctrine and Senior Management Test

A. With the Doctrine of Vicarious Liability:

19 [1972] AC 153,HL 20 Supra note 11 at p.70 21 Supra note 7 at p.417 22 Supra note 7 at p.416

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Both Identification Doctrine and the Doctrine of Vicarious Liability are Models of corporate criminal liability, i.e. in both cases the company derives liability from its human agency through which it acts.23 But the identification doctrine goes a step beyond the vicarious liability approach.

1. Under the doctrine of vicarious liability, the company can be made vicariously responsible on behalf of the wrongful acts of its employees but they remain the acts of the employees. But under Identification doctrine, the topmost officials having supreme authority are held directly liable as the company itself, since they are the directing mind and will of the corporation.24

2. Unlike the vicarious liability model which derives corporate liability from the conduct of any agent, servant, officer and employee, the identification doctrine that the liability of the corporation can be derived only from a narrower range of persons, rather only, some key top officials, namely the Board of Director, Managing Director or any other person authorized under the articles who are said to represent the ‘controlling mind’ of the corporation.25

3. While on vicarious liability doctrine, the company is made liable for the wrongful acts its employees, the position is reverse in the identification model where the topmost officers are held liable as the company themselves.26

B. With the Senior Management Test:

The Senior Management Test is an improvement upon the Identification doctrine, to the extent that in both cases, the company is made directly liable for the acts of the actually directing and controlling corporate officials.27 But they have the following distinctions.

1. While the Doctrine of Identification has an individualistic and narrower approach since only the liability of a particular individual, identified as 23 Ibid 24 Supra note 5 at p.39 25 Supra note 4 26 Ibid 27 Supra note 7 at p.421

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the directing mind and will of the corporation is imputed to the company, under the Senior Management Test has broadened its ambit to include any person in charge of senior management of the corporation whose intention can be imputed to the corporation to make it criminally liable.28

2. Doctrine of identification is less suitable to impose liability on a large company where it is very difficult to assess the actual top most directing individual, whereas large corporations can be held liable with the senior management test in a better way as it imputes the extended liability of any person associated with the senior management of the company.29

Merits and Limitations of the Doctrine of Identification

The Identification doctrine evolved in a situation when the traditional methods of holding corporations directly liable for offences involving mens rea, fell inadequate. However, the doctrine is not flawless. As on one hand it has some benefits, on the other hand it has many loopholes which are considered hereunder.

Merits:

(a) Ensures equal liability for natural and corporate persons:

It allowed the courts to stop corporate bodies taking undue benefit of the legal loopholes and escape criminal liability for same offences for which private individuals were convicted, and thus ensured equal application of criminal law to corporations and natural persons.

(b) Direct criminal liability attributed to the companies:

The doctrine, for the very first time, permitted courts to attribute direct criminal liability to the companies, by imputing the guilty mind of its topmost controlling officers.

28 Supra note 7 at p.422 29 Ibid

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(c) Blocks the practice of human agencies evading liability taking help of separate corporate identity:

It stopped the corporate practice of taking advantage of its separate legal personality. Corporate, being artificial person operates only through human agencies, but taking help of this corporate veil, the directors and managers were avoiding liability. The identification doctrine identifies these guilty human agencies of the company as embodying the company themselves to prevent abuse of the law.

(d) Makes it feasible to impose physical forms of punishments:

Companies, being artificial persons can be possibly punished with fine only due to impracticability. But since the identification doctrine merges the identity of the guilty individuals with the identity of the company, and thus helps in identifying the company with those topmost guilty human agencies to actually embody the company themselves, who can now be easily punished with other forms of physical punishments like death penalty or life imprisonment.

(e) Makes it possible to held corporate bodies liable for criminal offences like homicide and manslaughter:

Since the identification doctrine enables to identify the faulty human individual as embodying the company himself, therefore with its it is now possible to held corporate liable for even offences like manslaughter, as pointed out by the English courts in number of cases.30

Limitations:

(a) Restrictive Application:

The legal effect of the identification doctrine is to make corporate directly responsible for the actus reus and mens rea or negligence of its controlling officers, but only such officers.31 Hence the

30 R v ICR Haulage [1944] K.B. 551; R v P &O European Ferries (Dover) Ltd. (1991) 93 Cr.App.R.72; etc. 31 Supra note 11 at p.71

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doctrine has limited application as it restricts itself to the liability of certain key personnel only like Directors. This over individualistic approach allows corporations to escape liability when such directions come from any other corporate officials. Especially the problem is with big MNCs, and large corporations- which have so many branches and offices throughout the world, that it is not always the topmost officials alone who control the activities of the corporation worldwide. Rather, it is very difficult to identify one particular faulty individual.

(b) Evidential issues:

Under identification doctrine, liability can be attributed to the company after satisfying certain conditions, viz

Identify the individual Such individual must possess the requisite degree of fault. The individual must be capable of being regarded as embodying the

company in himself.32

Hence all these strict conditions limits the application of the identification to small owner-managed companies where it is easier to determine whether a senior individual has the requisite degree of fault,33 as in the case of R v OLL Ltd. and Kite.34 Nonetheless, evidential problems arise for large companies where it becomes very hard to establish whether a senior individual, with whom the company can be identified, has the requisite degree of fault,35 as happened in the case of R v P&O European Ferries (Dover) Ltd.36

32 Supra note 7 at p.417 33 Ibid 34 [1996] 2 Cr. App. R. 295 In this case, four teenagers on a canoeing trip in Lyme Bay died. Both the company, OLL Ltd, and its managing director Mr. Kite were convicted of manslaughter. It was observed that Mr. Kite and the company, OLL Ltd, of which he is a managing director, stand or fall together. “One for all and all for one.” 35 Supra note 32 36 [1991] 93 Cr. App. R. 72 In this case, the Herald of Free Enterprise capsized and sank off the port of Zeebrugge after the bow door was left open, killing 192 people. In the enquiry, although it was found that P&O ‘was from top to bottom infected with the disease of sloppiness’, prosecution was not possible. It could not be proved that the risks of open-door sailing were obvious to any of the five senior managers or seven directors. Accordingly, no mens rea could be attributed to the company.

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Thus, we see that it has been rightly pointed out by Hsaio, that “as the size of a company increases the effectiveness of the identification doctrine decrease.”37

(c) Individualistic Approach and Ignores corporate reality:

As mentioned above, the doctrine has an individualistic approach which reduces the corporate personality to the attributes of a single senior officer of the company.38 Hence it fails to take note of the reality of modern complex corporate decision making which are often the product of corporate policies and procedures rather than individual decisions of that single person.39 Thus the doctrine ignores the ‘corporateness’ which makes the activities of the body members of the corporate interrelated in the course of its business conduct.40

(d) Unequal Applicability for small and large corporations:

The doctrine, as is evident from earlier discussions, in its requirement of identifying a single individual with the requisite degree of fault, works unequally between large and small companies.41 Although it works well when applied to small owner-managed companies, yet identification doctrine is ineffective when applied to large corporations with complex decentralized management structure where responsibility is divided amid a vice-president in overall charge of an operation, committees in charge of formulating policy, middle-level managers responsible for implementing the policy, supervisors in charge of the day-to-day running of the operation and guilt cannot be neatly fixed to one individual.42

(e) Over-inclusive Nature of the doctrine:

37 M. Hsaio, ‘Abandonment of the Doctrine of Attribution in favour of Gross Negligence Test in the Corporate Manslaughter and Corporate Homicide Act,2007’ (2009), 30(4) Company Lawyer 110 at 111, As cited in Neil Cavanagh, “Corporate Criminal Liability: An Assessment of the Models of Fault”, 75 J.Crim.L. 414 (2011) 38 Supra note 7 at p.418 39 Ibid 40 Elis Tarelli, “A brief introduction to the principles and rules for determining corporate criminal liability”, Available at : http://ssrn.com/abstract=1467817 Accessed on 16/09/2012 41 Supra note 38 42 Supra note 7 at p.419

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Since the doctrine fails to portray the truth of modern corporate decision making, the identification doctrine often results in making a corporation liable, for a decision, which the senior officer might have taken completely independently and may be even contrary to company policy which is incorrect.43 As was in the case of Moore v Bresler,44 where the company secretary and the sales manager’s act of ‘intention to deceive’ contrary to section 35(2) of the Finance (No. 2) Act 1940 was imputed to the company, even though these two officers had acted without the knowledge of the board of directors and had also defrauded the company by preparing false documents.45

Recommended Variations within the Identification Doctrine

The inadequacies of the identification doctrine were noted by the courts and the Privy Council tried to resolve the inadequacies in the case of Meridian Global Funds Management Asia Ltd v Securities Commission,46 where the investing manager had invested in company, without disclosing such investment which he was bound to do.

Under the traditional identification doctrine, such investment manager would not be adequately senior to embody the ‘controlling mind’ of the company.47 But Lord Hoffman refused to restrict the application of the doctrine to only those representing the "directing mind and will" of the company.48 He observed that in certain exceptional cases, where the law requires the state of mind of the company needs to be shown - the court should formulate “a special rule of attribution for the particular substantive rule."49 He further stressed

43 Ibid 44 [1944] 2 K.B. 515 45 Supra note 42 46 [1995] 2 A.C. 500 47 C.M.V.Clarkson, “Corporate Culpability”, (1998), Web Journal of Current Legal Issues in association with Blackstone Press Ltd., Available at: http://webjcli.ncl.ac.uk/1998/issue2/clarkson2.html Accessed on 16/09/2012

48 Ibid

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that court’s approach should be based on the purpose of the relevant statute concerned, which will enable the court to have a

policy based approach in each case.50 Therefore he actually provided for ‘a broader and additional flexible policy-based attribution test’ to be applied in cases which depended on a construction of whose conduct was truly intended to represent that of the company for any particular act or offence.51

As in this Meridian case52, it was the investment manager who had made the investment was the person authorized by the company to do this.53 Hence, for the purpose of this rule, his acts and knowledge could be attributed to the company.54 For other rules and purposes, like health and safety in the company, his acts and knowledge would not be attributed to the company; instead, the will of the concerned person in charge of health and safety will be attributed to the company.55

However, in Attorney-General’s Reference (No. 2 of 1999),56 the Court of Appeal (Criminal Division) refused to follow the decision of the Privy Council so as to extend the ambit of liability of companies to all employees (pro liability of larger corporations) because the court felt that public good required equality in the treatment of both large and small corporation by criminal law.57 The court observed that since the identification doctrine was developed to avoid injustice, hence it would disrepute the law if every act and state of mind of an individual employee was attributed to a company which was innocent.58

Suggestions and Conclusion

49 Ibid 50 Supra note 7 at p.420 51 Ibid 52 [1995] 2 A.C. 500 53 Supra note 47 54 Ibid 55 Ibid 56 [2000] 2Cr. App.R. 207(CA) 57 Gennady A Esakov, “Corporate Criminal Liability: A Comparative Review”, 2 City U.H.K.L.Rev. 173 (2010) 58 Ibid

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The Identification doctrine came as a very positive means for establishing criminal liability on corporate bodies when the prevalent traditional methods had failed to do so. The ‘doctrine of identification’ set out the principle, based on which actions of an individual who is ‘identified’ with a company can be attributed to the company and considered to be actions of the company itself.59 In this way it allowed the courts to punish the people actually committing the crimes being the controlling brain and mind of the company through which the crime is being committed.60 Hence the doctrine aided in not only holding the corporate directly criminally liable for offences involving mens rea, but also addressed the difficulty of unequal treatment of law between private individuals and companies to a great extent.

However, the doctrine is not flawless as its individualistic approach fails to reflect the complication of present large corporations and also fails to ensure equality in application between large and small corporations.

It is necessary to state in this context that although the court had rejected in A-G Reference (No. 2 of 1999)61, the broader interpretation of the identification doctrine given by the Privy Council in Meridian case,62 yet the decision is vital as it shows that the courts are willing to construe statutes to take into account the reality of decision-making within large corporations.63

In fact, it is to be noted that this somewhat broader form of the doctrine has been gladly accepted and implemented in various jurisdictions. For example, in Australia, provisions of the Model Penal Code of 1962, created a quite practical model of corporate criminal liability based on the identification doctrine.64 Particularly

59 Supra note 4 60 Ibid 61 [2000] 2Cr. App.R. 207(CA) 62 [1995] 2 A.C. 500 63 Supra note 11 at p.73 64 Supra note 57 at p.180

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§2.07(1)(c)65 of the code, which sets out the general conditions for holding a corporation criminally liable based on the identification doctrine, was adopted and retained in the legislations of almost half of the states.66

Similarly in Canada, the Supreme Court in Canadian Dredge & Dock Co v R,67 holding that the identification doctrine is most suitable for the purpose of corporate criminal liability, expanded the category of directing mind to include the board of directors, the managing director, the superintendent, the manager or anyone else delegated by the board of directors to whom is delegated the governing executive authority of the corporation.68

The courts of United Kingdom, realized the difficulty in holding corporations criminally liable for offenses like manslaughter in various cases69 due to the restrictive nature of the identification doctrine. Accordingly the UK government implemented the Senior Management Test Model, by enacting the Corporate Manslaughter and Corporate Homicide Act, 200770 which combines the identification doctrine with the concept of ‘reactive fault’ along with the requirement that the acts or omissions of the senior management of

65 §2.07(1)(c) of The Model Penal Code of 1962 provides: “(1) A corporation may be convicted of commission of an offense if: ……(c) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.” 66 Supra note 57 at p.180 67 [1985] 1SCR 662 68 Supra note 1 at p.262 69R v P &O European Ferries (Dover) Ltd. (1991) 93 Cr.App.R.72; R v Balfour Beatty Infrastructure Services Ltd [2007] Bus.L.R. 77 (CA); etc. 70 The main elements of the offence as provided under Section 1 (1) of the Act, are as follows: “An organization to which this section applies is guilty of an offence if the way in which its activities are managed or organized- (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care owed by the organization to the deceased.” The method chosen is senior management test, because Section 1(3) of the Act states “An organization is guilty of an offence under this section only if the way in which its activities are managed or organized by its senior management is substantial element in the breach referred to in subsection (1).

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the company.71 As mentioned earlier the senior management test selected in this Act is just an improvement upon the Identification doctrine. In addition, the Canadian approach of the identification doctrine is currently under consideration, in the United Kingdom.72

Therefore we find that the more liberal version of the identification doctrine, as proposed in the Meridian case,73 would have been more beneficial, being a potentially powerful means to apply more equitably between large and small corporations, since there will be no longer a need to identify senior officers.74 Moreover, this expansive approach is an attempt to reflect the reality of corporations better since it examines the corporate structure in minutely, seeks to determine those responsible for the area of activity in which the offence took place and to attribute responsibility to the corporation for the conduct of relevant individuals.75

As a result, we see that in all the above jurisdictions, the doctrine of identification is kept as the base for imposing criminal liability on corporations, but is strengthened further with the elasticity of extending its application to any of the senior or high managerial person or agent (no need to identify and attribute only the top-most official’s intent).

Therefore, it is suggested that we should welcome this ameliorated identification doctrine is, within the framework of the doctrine only.76 For instance, if a company appoints a health and safety manager, then obviously his acts and knowledge should be attributed to

71 Supra note 57 at p.179 72 Supra note 68 73 [1995] 2 A.C. 500 74 P.L.Davies, ‘Gower’s Principle of Modern Company Law’. 6thed (1997). Sweet & Maxwell, London, P. 231 as cited in Neil Cavanagh, “Corporate Criminal Liability: An Assessment of the Models of Fault”, 75 J.Crim.L. 414 (2011) 75 M. Wilkinson, ‘Corporate criminal Liability- The Move towards Recognizing Genuine Corporate Fault’. (20 03), Canterbury. L. Rev. 142 at 156: Australia Law Reform Commission, Civil and Administrative Penalties in Australian Federal Regulation, Discussion Paper 65 (2002) para. 16.28 as cited in Neil Cavanagh, “Corporate Criminal Liability: An Assessment of the Models of Fault”, 75 J.Crim.L. 414 (2011) 76 Supra note 47

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the company for health and safety purposes even if such person is of relatively low status within the company.77 What it means is that the intention of the rightly authorized person, irrespective of seniority, should be attributed to the corporation to make it liable, rather than letting it go scot-free.

It may be concluded that the flexible policy based attribution test, incorporating principles of agency, vicarious liability and strict liability within itself, will finally enable courts to establish corporate criminal liability more effectively and equitably amongst large and small corporations. Furthermore this expansive version of Identification doctrine will not only better reflect the complexities of modern corporations, but will also be eventually one of the best possible theory of corporate criminal liability for heinous offenses like manslaughter and homicide.

77 Ibid

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AN OBJECTIVE ANALYSIS INTO THE EFFICACY OF THE USE OF

PRECEDENTS IN DISSECTING INTERPRETATION

Gautam Mohanty*

Subhanshu Gupta**

Introduction

Application of any law is always accompanied by the act of interpreting it. Any norm posed in an authoritative legal text has to be understood before it can be applied. Accordingly, in a wide sense of the term ‘interpretation’ every application of law requires some act of interpretation, since one has to form an understanding of what the text postulates in order for its correct application, and any act of apprehension of meaning can be said to involve interpretation. It is noteworthy at this juncture that a narrower or stricter conception of interpretation is more useful and relevant to the study of legal reasoning. For this is the very perception with which we interpret the legal provision on occasion of being encountered with a doubt pertaining to the provision. This reflective elimination of doubt is to be distinguished from simple unmediated understanding of a text1 because an unmediated understanding of the provision or of the text may give rise to further complex issues is to be avoided at all costs.

The importance of legal precedents in the interpretation of the provisions of law is also to be looked upon. Legal precedents are the rules or statements of opinions decided by the judges in the form of judicial decisions. These opinions play a very important role in the subsequent interpretation of the provisions in hand and in settling the dispute between the parties. The opinions penned down by the judges have to be justified by a reasoning so it to become a binding precedent. While interpreting a legal provision, the first thing which the judges look upon is the prior decisions on the similar issue. These precedents

* B.B.A.(H).,LL.B(H), 5th Year, National Law University Odisha, Cuttack 1Compare Tony Honore, “The Necessary Connection between Law and Morality” Oxford Journal of Legal Studies.

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not only are the weapon for the lawyers to bring the case in their court but also assist the judges to come to a correct interpretation.

Ponderance over the dubious contention pertaining to the provision or the text requires us to interpret the text in a stricter sense of the term. Interpretation in a strict sense connotes entertaining a quantum of doubts about the meaning or proper application of the provision and deciding upon such dubious contentions by forming a judgement which seems to be reasonable in the context. Issues of interpretation in the defined sense are endemic to law2, because differences of legal relationship can turn on differences of the understanding of a statutory or other binding text. Hence arguments aimed at upholding one or another rival interpretation of the same text are omnipresent.3 In this particular article the author categorically limittheir approach to the subject of interpretation by dealing with the concept of interpretation so understood.

It is a well-recognized truism that even the most carefully drafted and detailed text can never convey a fully determinate meaning for all purposes.4 All the more is this so when texts that embody legal norms are brought into play in ways that critically affect human interests, hence being susceptible to keenly argued practical disputes concerning the impact of variant possible meanings.5 Furthermore there is another interpretational issue which the authors would be dealing with greater detail in the latter half of the article. The interpretational issues is pertaining to the interpretation of the facts in the light of the rule rather than interpreting the rule in light of the facts presented before the court of law. The concluding part of the article pertaining to interpretation will primarily focus on putting forth an account of reasoning involved in resolving problems of complex interpretations with close reference to actual instances of judicial

2 J. Wroblewski, “Legal Language and Legal Interpretation” Law and Philosophy 4 (1985) 239-25. 3Id. 4John F. Manning, “Textualism and Legislative Intent”, 91VA. L. REV. 419, 419 (2005). 5Supra Note 1.

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interpretation so as to determine the constituents of a good argument for interpretative conclusions.

Application of the Concept of Precedents as an Aid for Resolution

In any legal system, the published decisions of Courts and the interpretation given by the Judicial or administrative authorities applying the legislative enactments are important source of the specific rules of law.6 The parties to a legal dispute, sometimes do not agree on the meaning of the governing statute or the interpretation of the provisions applied to their cases and in such cases, litigation ensues where the meaning given to the statute or the interpretation of the provision will be an issue of the Court to resolve. The Courts then, taking the factual situation of the dispute in consideration, defines the specific requirements of the statute and create a specific rule of legal obligation which is to be followed in like circumstances.

The legal rules specified by the Courts bear lot of importance in the subsequent disputes. But why such an importance is given to legal precedents? Why lawyers argue so much about using these precedents in the case at hand? Why do they study the decisions in the prior decided cases and seek to apply the interpretation to the present problems? Why do Judges think they can justify the decision they are giving in a dispute by showing that their reasoning is in the line of decided case, the precedents or think they cannot justify a decision if the same goes against the established legal precedent? This chapter seeks to answer the above questions in the light of importance of legal precedents and its effect on the reasoning of a decision.

The significance of precedents depends upon the reason of justice: if you ought to treat like cases alike and different cases differently, then new cases that are relevantly like ones previously decided ought (prima facie, anyway) to be decided in the same or an

6 Hansford, Thomas, and James Spriggs, II, 2006, The Politics of Precedent in the U.S. Supreme Court, (Princeton, N.J.: Princeton University Press).

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analogous way to the previously decided ones.7 Another reason attached which gives legal precedent all the more significance is the economy of effort- lawyers and judges, using precedents, will not have to keep on going or proving over the same ground. So once something has been settled after careful argument, it ought to be treated as settled finally, except if some very special occasion for reconsideration can be shown to have arisen.8

The practice in the contemporary legal systems has grown up in favour of having regard to precedent. The decisions of various Courts are recorded in officially or unofficially law reports and might be called ‘precedent texts’ having an authority of their own. But these precedent text are different from the text of statute law, whose every word in itself is a part of enacted law. The explanations by legal commentators or legal scholars are based as much on these precedent texts as on the codified statute. The reported decisions of the superior courts have become one of the important elements for the lawyers as an argumentative weapon, using the decisions from these precedent texts to turn the case in their favour.9 Hence precedents play a crucial part in the construction and interpretation of opinions in disputed word of law where the judges state what they consider the best justifying reasons for the decision and interpretation they declare.

Not all the decided cases become precedents but it is in the statement of opinions of the judges justifying the decision that precedents are laid down and build up the case law or providing the legal practitioners, commentators or scholars to build up an articulate body of case law on the opinion expressed by the judge on certain provision of law. The use of precedents as argumentative sources by the lawyers or as a justification to certain opinion by the judges runs with certain doctrines. Each legal system may have separate doctrine prevailing for the application of precedents. For example, doctrine of

7 Cross, R., Precedent in English Law (4th edn, Oxford: Clarendon Press, 1991). 8 Id. 9 Maccormick, N., Why Cases have Rationes and What ( ese Are’, in L. Goldstein (ed.), Precedent in Law (Oxford: Clarendon Press, 1987)

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strictly binding precedent may provide that each decision of every court is strictly binding on every other tribunal or court of the same or of inferior level in the hierarchy of courts. Another doctrine of persuasive precedent may state that the courts ascribe a greater or less persuasive weight to decisions or to lines of decision of the same, or coordinate or superior courts/tribunals. Many legal systems of common law and of mixed systems such as that of Scotland have mixed doctrines of binding and or persuasive precedent i.e., all precedent being persuasive at a given level of hierarchy, but binding for tribunals or courts lower in a given hierarchy. In general it is the ratio decidendi of a decision which is the specifically binding or persuasive element in a precedent. 10 The ratio decidendi is the rule or principle of decision for which a given precedent is the authoritative source, whether that rule or principle of decision is then to be treated as binding or only as persuasive in some degree for other later deciders of similar questions.11 As ratio decidendi, there are obiter dicta which can be found in a judicial opinion. These are the other statements of opinion upon the law, statements which go beyond the point or points necessary to be settles in deciding the case. As observed by Lord Porter in the case of London Graving Dock Co. Ltd. v Horton:12

Not every passing expression of a judge, however eminent, can be treated as an ex cathedra statement.'

The contrast mainly drawn between ratio, like the dicta, is identifiable as some kind of saying by a judge stated in the course of giving an opinion in justification of a decision.13 Different theories in respect of ratio have been propounded by various scholars. Theories of precedent can be considered as one tending from the more or less strict or formalistic to the more or less skeptical end of a spectrum.14 The formalistic theory represents the ratio as relatively fixed and 10 J. Stone, "The Ratio of the Ratio Decidendi", [1959] 22 Modern Law Review 597. 11 Id. 12 [1951] AC 737. 13 A. Simpson, "The Ratio Decidendi of a Case and the Doctrine of Binding Precedent" in Guest (ed.), Oxford Essays in Jurisprudence (Oxford 1961) p. 148 at p. 164 14 Compare Raimo Siltala, A theory of Precedent (Oxford: Hard Publishing, 2000) 65-108.

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determinate or at least determinable and at the skeptical end ratio is treated as the term having only illusory reference and thus as signifying whatever its current user wishes.15 The formalistic theory is the one which seems to be appropriate with respect of legal precedents. There does not seem any difficulty in showing how the sound and justifiable decisions of a legal dispute must proceed on the basis of a reasonably firm and determinate ruling as to the applicable law.16

‘Justification’ in Legal Decision-Making

Legal decisions presuppose legal disputes wherein one party claim about or from another person. In this wide sense of ‘dispute’ and ‘claim’, legal decisions are to be understood as decisions about claims in the context of disputes. The maker of a legal claim has to be willing to enter into some sort of specifically legal argumentation by way of justifying it. At the same time, for a real contest to happen, the party denying or opposing the claim must be ready to do so in legal terms. It may be sufficient simply to deny allegations of facts; but being bothered to deny them normally implies an acknowledgment that facts such as those alleged would be legally relevant if true or if proven. And direct denial of the legal relevance of facts alleged is possibility. All this presupposes an objectively and commonly acknowledge way of identifying some normative propositions- rules and principles and the like- as being legal in character. There is also a presupposition of some common ground between parties and tribunal as to legitimate sources of presuppositions upon which claim-justification can be effected. For a judge to decide the issue, he must decide how to rule upon the points disputed by the parties. Furthermore, the judge will have to give justification for his ruling showing why such statement of opinion upon which the decision is based is right in law. This justification has to have regard to consequences, at least ‘juridical consequences’ and sometimes casual or behavioral consequences as well, evaluated by reference to relevant legal values. Justification requires universalization as

15 A. Goodhart, "Determining the Ratio Decidendi of a Case", (1930) 40 Yale Law Journal 161. 16 J. Montrose, Ratio Decidendi and the House of Lords in J. Montrose, Precedent in English Law and Other Essays (Shannon, Ireland 1968) at p. 151

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justifying involves propounding good rational grounds for what one does, and thus depends on a conception of rationality and a commitment to rationality so conceived.17

The concept of precedent is applied by all the legal systems of the world. Every case stands in a relationship to an already decided prior case and has no meaning by itself. The doctrine of binding precedent is one of the important characteristics and this doctrine will continue to play an important role in the legal systems for time to come. Not everything can be codified, but the provisions of law are to be interpreted in such a manner to give it a scope to cover wider aspects of societal needs. Even if a comprehensive code is introduced, case laws will be required to interpret the code; therefore one has to fall back to the decided case, precedents to solve a particular dispute. Binding precedents are the traditional source of the law for English lawyers.18 Not every point of dispute can be discussed and argued everytime it reached the court of law, some set principles are required, which sometimes are not available in the code itself, the principles which are the ratio as laid down by the careful thinking and justification of the judge, which can be applied in the subsequent cases to come to solve the dispute at hand.

Classification of Interpretative Arguments

The author under the above mentioned head will indulge in the exercise of examining as to what are the different kinds of interpretative arguments that one can deploy in the justification of interpretations when these are themselves the reasons for decisions. The categorisation of interpretative arguments can be done in the following ways. Firstly, those that appeal to the linguistic context itself as a source of reasons for favouring one interpretation or another19;

17 C. Pickett, "Precedent in the Court of Appeal", [1980] 43 Modern Law Review 136, 140. 18 D. Hughes Parry, "Economic Theories in English Case Law", [1931] 42 Law Quarterly Review 183, 186 19Philip P. Frickey, “Revisiting the Revival of Theory in Statutory Interpretation: A Lecture in Honor of Irving Younger”, 84 MINN. L. REV. 199, 206 (1999).

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secondly, those that look at the legal system as the special context of the authoritative text to see how best to make sense of it in that context20; thirdly, those that look to the end or aim of the authoritative text to see how best to make sense of it given that end or aim.21Lastly, the argument which appeals to the lawmakers intention as to a guide to elucidate the meaning of the authoritative text. There exists a fundamental problem in the above mentioned proposition and hence the same shall not be addressed to in this article.22 The problem being in regards of the issue of intention; the problem about intention is its ambiguity, for sometimes it means an objective intention imputed to an author, sometimes a subjective intention gathered from statements by the author. There can also be differences concerning the reference of the intention in question. Sometimes it may involve reference to authors’ intention about the end and values to be realized through legislation. For the above mentioned reasons this interpretative argument is indeterminate in nature and hence in lieu of its flexibility and fluidity should be deemed as a transcategorical type of argument.

1. LINGUISTIC ARGUMENTS

In simple parlance linguistic interpretative arguments connote the appeal frequently made in a court of law to the plain meaning of words used in ordinary language. Such a kind of argument has always been levelled with criticism on grounds that it is dependent on naïve and false assumptions about language and semiotics, but perhaps this is because too little attention has been paid to whether and how this kind of argument can be convincing in context.23The question which has to be asked and answered to at this rightful juncture is why does such an interpretative argument carry weight? In response to the raised question it can be contemplated that it is just a necessary part of respecting authority. If someone with authority issues a norm of some 20Supra Note 4. 21Todd D. Rakoff, “Statutory Interpretation as a Multifarious Enterprise”, 104 NW. U. L.REV. 1559, 1578 (2010). 22Supra Note 6. 23JacobScott, “Codified Canons and the Common Law of Interpretation”, 98 GEO. L.J. 341, 346 (2010).

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kind then unless one can associate himself with that norm linguistically then the very purpose of that text fails. To treat a linguistically formulated text as authoritative, one must ascribe a kind of normative authority to the compositional meaning of the wording used by the authority. The validity and viability of the ordinary language argument lies in the principle according to which it has been formulated. By resorting to plain and ordinary meaning of legislation one creates a situation in which legislatures have to take utter care to draft statutes in ordinarily intelligible terms. Such a style of drafting a statue would only lead to an increase in possibility of effective and trouble free communication between legislature and citizen is maximized and the trouble and the expense of litigation about proper interpretation minimized.24

2. SYSTEMIC ARGUMENTS

The author believes that there is always a relevant legal context for every piece of statue law and indeed for every authoritative text. Systemic arguments are those arguments that work towards an acceptable understanding of a legal text seen particularly in its context as a part of a legal system.25 For further better understanding of the true nature of such arguments the author has disseminated the arguments into further categories.

(i) Contextual harmonization

The argument from contextual harmonization looks to the way in which any statutory provision is to be found nested in a larger legal scheme, at least that of the single whose statue, often that of a set of related statues. To argue from legal contextual harmonization is to contend that any problematic terms ought to be interpreted in the light of the whole statute26 or set of related statues. This makes particularly relevant concentration on closely related provisions of the statue or 24Legal Reasoning and Legal theory (Oxford: Clarendon Press, 2ndEdn, 1994) at P.204. 25Sydney Foster, “Should Courts Give Stare Decisis Effect to Statutory Interpretation Methodology?” 96 GEO.L.J. 1863 (2008). 26Nicholas Quinn Rosenkranz, “Federal Rules of Statutory Interpretation”, 115 HARV. L. REV. 2085, 2156 (2002)

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other statues27 in parimateria, and shows that what is a more or less obvious ordinary or respectively technical meaning ought to be interpreted in that light.

(ii) Argument from analogy

The argument from analogy says that if a statutory provision is significantly analogous with similar provisions of other statutes, or a code, or another part of the code in which it appears then it is a good ground for supporting an interpretation that follows analogy.28 In other situations it may be permissible for a significant extension of or departure from the term’s ordinary meaning. In appropriate contexts this can be justified with a view of securing similarity of sense with the analogous provisions either considered in themselves or considered in the light of prior judicial interpretations of them.

(iii) Conceptual Argument

The entire philosophy behind conceptual arguments stems from Savigny who proposed that a conceptual argumentif there ever existed one, can be primarily attributed to the usage of any recognized and doctrinally elaborated general legal concept for the formulation of a statutory provision then the same has to be interpreted in such a manner so as to maintain a consistent use of the concept throughout the system as a whole. While using this form of interpretative argument there should be particular regard to the conceptual consistency within any branch of law.29

3. CONSEQUENTIALIST ARGUMENTS

Statues are products of legislative decisions, promoted by governments and enacted by parliamentarians. Statutes are primarily enacted with a view to reforming the law. The idea of reform presupposes identification of some pre-existing defect in the law which the reform is

27Supra Note 10. 28Aileen Kavanagh, “Pepper v Hart and Matters of Constitutional Principle” Law Quarterly Review 121 (2005) 98-122. 29Id.

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designed to cure. The defect referred to above maybe an inherent mischief in the old expression of the text. An obvious reason for preferring one possible interpretation to another is if its practical implications tend towards achieving the postulated reform, by removing the defect or suppressing the mischief. In a broader sense every legislation may be considered as embodying within itself some socially relevant value or values. The gist of the arguing along the lines of consequentialism entails within itself a rational and teleological activity for those who indulge in such activities must be presumed to suppose that value of some kind will be achieved through implementation of the enactment.

Conflicting Arguments and Conflict Resolution

From the above it can be assertively deduced that interpretative argument in law presents considerable complexity since there may be arguments of many types and each is capable of generating an interpretation of a given text at variance with that generated by some other possible argument. With a variety of arguments at disposal it may so happen that each of the arguments when applied to a certain given fact yields different results and thus each of the results deduced may be in conflict with each other. It is here at this very juncture that the judge comes into the frame whereby he has to conclusively decide in the whole context as to which interpretation is to prevail and on what grounds. Hence there must be a stage of argumentation which sums up their relative persuasiveness in the given context and accounts for the appropriateness of the conclusion to be reached and this may be considered as a conclusion about legislative intention.

The author hereby suggests a recourse to the above mentioned complexity in the way that if there is one interpretation that is clearly favoured by a reading of the text in the light of syntactic and semantic conventions of ordinary language and if this is confirmed by a reading of the text in its whole systemic context then there lies no further need for recourse to further consequentialist arguments. But if there remains uncertainty in the light of all the linguistic and systematic

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arguments further grounds of interpretation are required to be resorted to by the judiciary.

Conclusion

There lies an inherent interface between the use of precedent and the exercise of interpretation in the sense that a precedent in a proceeding cannot be used without indulging in the exercise of interpretation. Arguments which are precedent oriented state that if a statutory provision has previously been subjected to judicial interpretation, it ought to be interpreted in conformity with the interpretation given to it by other courts.30 The beauty of both the concepts lies in the fact that both the concepts are flexible in the way that there are options to resort to depending upon the facts and circumstances in hand and yet rigid enough to encourage consistency and certainty in the law. Doctrine of binding precedent is a widely followed doctrine across all the legal systems of the world. Inferior courts follow the decisions of the superior courts inorder to come to a decision or for the interpretation of a provision. Judges cannot become legislators as the same is restricted by Separation of Powers. Hence the use of precedents for the purpose of interpretation becomes all the more important. Thus it can be stated that the doctrine of judicial precedent and statutory interpretation benefits the judicial system as a whole by striving to promote qualities such as equality, equity and fairness.

30MacCormick, “On Legal Decisions and their Consequences: from Dewey to Dworkin”, New York University Law Review 58(1983) 239-58.

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CLEARING THE FOG AROUND THE RIGHT TO PRIVACY GUARANTEED UNDER THE CONSTITUTION

Adithya Rajeev*1

Parvathi S**

“To be left alone is the most precious thing one can ask of the modern world ”

-Anthony Burgess

Privacy may be defined as a right of the individual to determine when, how, and to what extend he or she will release personal information. 2 The concept of privacy embodies the moral fact that a person belongs to himself and not to the society as a whole. 3 In Whalen v. Roe4, the US Supreme court commented that the right embraces both a general individual’s interest in avoiding disclosure of personal matters and a similar general, but none the less distinct, interest in independence in making certain kinds of important decisions. The right to privacy was one that was never expressly included under Article 21 of the Constitution. The Judiciary through its numerous judgments has propounded the laws relating to the privacy of an Individual.

The Right to privacy, as a right is no less important than any other right carefully and particularly reserved to the people. The right to privacy is “simply stated the right to be left alone; to live one’s life as one chooses free from assault, intrusion or invasion except as they can be justified by the clear needs of the community living under a government of law. 5

Through this Article the author shall trace back the evolution of the said right in India and shall unfurl the various facets to the said

*5th year, 9th Semester BAL; LL.B (Five Year) student at Kerala Law Academy Law College, University of Kerala, Thiruvananthapuram, Kerala & **5th Year, 9th Semester BBA; LLB (Five Year) student at School of Legal Studies CUSAT, Ernakulam, Kerala 2R v. Edwards (1996) 1 SCR 128 3Thorn burgh v. American college of O&G (1986) 476 US 747 4 429 US 589 (1977) 5Mapp v.Ohio 367 US 643 (1961); see also Time inc v. Hill 385 US 374 (1967)

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right. Part (i) of the Article shall give a brief review on the history of Privacy in India whilst referring to various case laws rendered by the various courts of the Country, while Part (ii) shall analyze as to when the state may deprive a person of this right. Part (iii) of the Article shall study the right of an individual to waive the said right with his consent and finally Part (iv) shall deliberate on the much debated question as to whether the said right can be enforced only against the state.

(I) Evolution of Privacy in India

The Supreme Court while recognizing the existence of a Right to Privacy in India had acknowledged that “Our Constitution does not declare a right to privacy as a fundamental right” before arriving at the conclusion that the said right is implicit under Article 21 of the Constitution.

Case Study: Kharak Singh v. State of U.P 6

Brief facts:

The Petitioner in the said case was challenged in a dacoity case but was released as there was no evidence against him. The petitioner was then put under surveillance as defined In Regulation 236 of the U.P. Police Regulations. The surveillance includes secret picketing of the house or approaches to the house of the suspects, domiciliary visits at night, periodical enquiries by officers not below the rank of sub-Inspector into repute, habits, association, income, expenses and occupation, the reporting by constables and chaukidars of movements and absences from home, the verification of movements and absences by means of inquiry slips and the collection and record on a history sheet of all information bearing on conduct.

The Petitioner alleged that the said surveillance was against his right to privacy. The Supreme Court in this landmark judgment had observed that:

6AIR 1963 SC 1295

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“Right to privacy is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. In the last resort, a person's house, where he lives with his family, is his "castle".”

The Court further referred to the wordings of Judge, Frankfurter J., in Wolf v. Colorado7, pointing out the importance of the security of one's privacy against arbitrary intrusion by the police.

The Court further while accepting that nothing is more deleterious to a man's physical happiness and health than a calculated interference with his privacy, defined privacy as “a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.” Thus the Court arrived at the conclusion that the acts of surveillance in question is in violation of the petitioners right to life and personal liberty guaranteed under Article 21 of the Constitution.

Though the Court identified the existence of a right to privacy under Article 21, it failed to define what aspects of life would come under the ambit of the said right in a conclusive manner. This hindrance was removed by the Supreme Court in the case of R. Rajgopal v. State of Tamil Nadu8.

Case Study: R. Rajgopal v. State of Tamil Nadu (Auto Shankar Case)

Brief facts:

The case involved the question relating to the publishing of the autobiography of a prisoner, Auto Shankar, who was tried and charged for the murder of as many as six people. He was later convicted and sentenced to death by the learned Sessions Judge, which was confirmed by the Madras High Court. The petitioners were the editors and associate editor of the weekly magazine published in Madras. They

7 338 U.S. 25 (1949) 8 AIR 1995 SC 264

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sought a court order restraining various state bodies from interfering with the publication of the said autobiography. The Respondents pleaded that the autobiography in question was not written by the deceased, Auto Shankar.

The Question considered by the Court was whether a citizen of this Country can prevent another person from writing his life story or biography. Does such unauthorized writing infringe the citizen's right to privacy?

The Court thus defined the right to privacy as enunciated under Article 21 of the Constitution while also underlining the various facets of life that are covered under the broad concept of privacy. The Court observed that:

“The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a "right to be let alone". A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.”

Though the right to privacy was not explicitly provided as a fundamental right by the makers of our Constitution, the said right was duly acknowledged as a right implicit under Article 21 and has ever since its inception been upheld by various courts across the Country.

(II) Is the Right Absolute?

The founding fathers of the Constitution by expressly including the phrase ”except according to procedure established by law” has made it abundantly clear that right to life guaranteed under Article 21 is not an absolute right. The said principle was reiterated in a plethora of judgments.

However, the said position of law was reversed when the Court opined that a mere procedure was insufficient to deprive a person of his

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right to life and personal liberty guaranteed under Part III of the Constitution.

In Maneka Gandhi v. Union of India9 case, the Supreme Court while over ruling the A.K Gopalan v. State of Madras10case held that the mere prescription of some kind of procedure is not enough to comply with the mandate of article 21. The procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.

Thus it is evident that the right to privacy which is a ancillary to right to life is not an absolute right and the state can limit the applicability of said right available to a person through a procedure established by law.

Case Study: Govind v. State of Madhya Pradesh 11

Brief facts:

The petitioner filed a writ petition under Article 32, challenging the validity of Regulations 855 and 856 of the Madhya Pradesh Police Regulations made by the Government under the Police Act, 1961. Regulation 855 provides that where Regulation 855 provides that where on information the District Superintendent believes that a particular individual is leading a life of crime, and his conduct shows a determination to lead a life of crime that individual's name may be ordered to be entered in the surveillance register, and he would be placed under regular surveillance. Regulation 856 provides that such surveillance, inter alia may consist of domiciliary visits both by day and night at frequent but irregular intervals.

The Petitioner contended that the said regulation is in contravention to the right to privacy guaranteed under Article 21 of the Constitution of India. The Court while considering the validity of the said regulations observed that:

9 AIR 1978 SC 597 10 AIR 1953 SC 27 111975(2) SCC 148

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“There can be no doubt that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the Court does find that acclaimed right is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the compelling state interest test.”

The Court thus arrived at the conclusion that the state may thus deprive a person of his right to privacy if there exists a strong countervailing interest which I of significant public importance.

Case Study: Ayyappankutty v. State12

Brief facts:

The petitioner who was undergoing imprisonment filed the petition so as to retain the police and the other authorities from publishing his photographs in public place. He contended that such publication would be in violation of his right to privacy guaranteed under the Constitution.

The Court while dismissing the plea of the petitioner upheld the principle enunciated in the Govind case13 and observed that:

“It is well established that even a fundamental right can be subject to restrictions in public interest”

The Position was reiterated by the Supreme Court in the very recent case of Smt. Selvi & Ors v. State of Karnataka14 where the court held that: “A person’s right to privacy could be justifiably curtailed if it was done in light of competing interests”

Thus though Article 21 guarantees to the individuals privacy, the said right is not absolute. The state may deny a person of this right by following a procedure established by law in a just and fair manner

121986 KLT 383 13Supra n. 12 14AIR 2010 SC 1974

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for a public interest or when there exists a strong countervailing interest.

(III) Can an Individual Waive the Right?

There exists a common perception that the phrase “without his consent”15used in the judgment rendered by the Supreme Court in the Auto Shankar case16 indicates that a person has the right to waive his right to privacy. Many have objected to this proposition and have argued that the said phrase can be said to be applicable only to the facts and circumstances of that case and does not create a general rule. They further argue that the Doctrine of Waiver of Fundamental Rights disallows any such waiver.

The Supreme Court in the case of Basheshar Nath v. CIT 17 had given a conclusively answered the question as to whether a fundamental right can be waived.

Case Study: Basheshar Nath v. CIT

Brief facts:

The Petitioner, whose matter had been referred to the Investigating Commission under Section 5(1) of the Taxation of Income (Investigation Commission) Act 1947, was found to have concealed a large amount of his income. The petitioner subsequently agreed as a settlement to pay Rs. 3 lakhs in monthly installments. However the Supreme Court in the meanwhile held that Section 5(1) of the Act was ultra vires the Constitution as it was inconsistent with Article 14. The petitioner in view of the ultra vires character of the settlement invited the court to absolve his obligations.

15The operating paragraph reads as follows: “A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical”. 16 Supra n.9

17AIR 1959 SC 149

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The respondents contended that the petitioner had in turn waived his fundamental right. J.Bhagawati and Subba Rao JJ, after listening to the aversions of the counsels had finally arrived at the conclusion that: “It is not open to a citizen to waive any of his fundamental rights guaranteed under Part III of the Constitution”.

However S.K Das J. in his dissenting opinion held that: “On an analogy of the American Constitution, the rights guaranteed may be waived, provide such waiver is not forbidden by law and does not contravene public policy or public morals.”

The law however is now well settled that the fundamental rights cannot be waived by an individual. 18 The Doctrine of waiver enunciated by some American Judges in construing the American Constitution thus cannot be introduced in our Constitution.19

The rights described as Fundamental rights are a necessary consequence of the declaration in the preamble that the people in India have solemnly resolved to constitute India into a sovereign democratic republic. These fundamental rights thus have not been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights.20

Thus in view of the established rule that the fundamental rights enshrined in the Constitution cannot be waived or bartered away by an individual, the perception that the right to privacy of an individual may be waived with his consent bears no fruit.

(IV) Is the Right Enforceable only Against the State?

Another subsisting dispute on the matter of right to privacy guaranteed under Article 21 is with regard to its enforceability. It is widely debated that the right is enforceable even against the state. The supporters to the notion reasons their argument on the fact that privacy is personal right available to a person and thus enforceable

18Nar Singh Pal v. Union of India AIR 2000 SC 1401 19 Behram Khurshed Pesikaka v. State of Bombay 1955 SCJ 73 20 Ibid

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even against the state. They also find support from the usage of the term “no one” as against “state” by the Supreme Court while defining privacy in the Auto Shankar case.

Those against the notion point fingers to the well established principle that the fundamental rights are enforceable only against the state.21

The question as to whether a fundamental right can be enforced against the actions of a private individual was first addressed by the Supreme Court in the case of P.D Shamdasani v. Central Bank of India22.

Case Study: P.D Shamdasani v. Central Bank of India

Brief facts:

The petition was filed under Article 32 of the Constitution for the enforcement of the petitioner's fundamental rights under Article 19 (1)(f) and Article 31(1)of the constitution alleged to have been violated by the Central Bank of India Ltd., a company incorporated under the Indian Companies Act, 1882

. The petitioner thus contended that the said fundamental right is enforceable even against a non-state actor. The Supreme Court finally disposed the petition and observed that the enforcement of fundamental rights requires the entity to have a nexus with the state and private actions which violate rights will be regulated by ordinary laws.

The Apex Court in a plethora of judgments has categorically held that no Fundamental rights are enforceable against non-state actors except Articles 17, 23 and 24.23

Article 21, admittedly, makes no express reference to the “state” in Article 21. However the suggestion that the article was intended to 21Vidya Verma v. Shiv Narain Verma AIR 1956 SC 108 22AIR 1952 SC 59 23Sukh Dev Singh v. Bhagatram AIR 1975 SC 1331; see also P.U.D.R v. Union of India AIR 1982 SC 1485

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afford protection to life and personal liberty against violation by private individuals is plainly excluded by the words "except by procedure established by law"24

The debate was however ended by the Delhi High Court, in the case of Petronet Ing. Ltd. v. India Petro group and Anr25, where the Court gave a conclusive answer on the matter.

Case Study: Petronet Ingo. Ltd. v. India Petro group and Anr

Brief facts:

The petitioner, a listed joint venture company presented the petition against the defendant who has been publishing several news items/ articles relating to the petitioner. The petitioner objected to the unauthorized publishing of sensitive information shared between the plaintiff and international LNG sellers.

The petitioners contended that the said publication is in violation of the right to privacy guaranteed under Article 21 of the Constitution. The High Court dismissed the petition by observing that right to privacy cannot be enforced by an artificial person and further observed that right to privacy can be asserted only against the states intrusive behavior and cannot be enforced on assertions against private individuals and other non-state actors.

Thus it is evident from the judgments rendered by the Courts across the Country that the argument that right to privacy can be enforced against the acts of a private person holds no weight.

(V) Conclusion

Privacy has been widely recognized as an important component in a democratic society. The notion of privacy evolved in India over a long period of time. The concept of Right to Privacy enshrined under Article 21 of the Constitution, though often discussed and deliberated, has left a string of questions unanswered and unattended. Though

24 Supra n.22 ; see also Chiranjit Lal Chowdhuri v. Union of India AIR 1951 SC 41

252009 (158) DLT 759

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privacy is essentially an individual’s personal right to be let alone, the same is controlled and administered by the state. The state may curtail the right in case of a public interest by following a procedure established by law. The right cannot be waived by an individual as it acts as a check on the actions of the state and the right is enforceable only against the state, who guarantees the right to the individuals.

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ACCOUNTABILITY OF JUDICIARY UNDER INDIAN CONSTITUTION

M.Aravind Kumar*

“Power tends to corrupt, and absolute power tends to corrupt absolutely.”

- Lord Acton1

The importance of the judiciary in a democratic society can hardly be exaggerated. Judiciary is a part of the democratic process. Judiciary not only administers justice, it protects the rights of the citizens and it acts as the interpreter and guardian of the constitution. Judiciary in India being a democratic country is vested with the highest power by the people and is considered as strongest pillar of the democracy. Further it has been given supreme powers by the Legislature which has lead to the non-accountability of the judiciary to anyone. Judiciary in India enjoys judicial independence but this independence sometimes results in misuse of the powers and privileges by the members of the judiciary. Thus, the concept of Judicial Accountability itself is nowadays under question. All over the world debates and discussions are going on as to whether judiciary can be held accountable for its actions. It is in this background that we are bound to discuss the accountability of judiciary under Constitution of India.

Independence of Judiciary

Dr. B.R. Ambedkar, the Chairman of the Drafting Committee encapsulated the kind of Judiciary that the Constitution of India would afford to the people of India in the following words: “There can be no difference of opinion in the House that our judiciary must be both independent of the executive and must also be competent

* BABL, Advocate, Tuticorin 1 "Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men." This was written in a letter by the first Baron Acton, the historian and moralist, in his letter to Bishop Mandell Creighton in 1887.

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in itself.” The Constitution of our country is a Federal Constitution. The three organs of the Nation state have been created by our constitution i.e the Judiciary, the Executive and the Legislature. The respective jurisdiction of each organ has been demarcated under the Constitution under 7th schedule under Art.246 and it is expected that each organ of the nation state is expected to function under its jurisdiction without any encroachment upon the jurisdiction of other organs of the Nation state. Our Constitution is based on the rule of law and the independence of judiciary is a condition precedent for effectuation of the rule of law.

Further Independence of judiciary as it is understood has to be confined within the four corners of our constitution and cannot go beyond the constitution. A Major principle which runs through the entire fabric of our Constitution is the principle of rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the state within the limits of law and thereby making the rule of law effective and meaningful. Thus the judiciary cannot act in isolation. The Parliament has the power to regulate the court’s jurisdiction. This is the principle of independence of judiciary which is vital for the establishment of real participatory democracy. Maintenance of rule of law is a dynamic concept for delivery of social justice to the vulnerable sections of the society. The Power of judicial review conceded to the judiciary is the possible safeguard for the independence of judiciary. In the famous case of S.P. Gupta v. Union of India,2 our Hon’ble Supreme Court has held that :- “The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law under the Constitution, it is the judiciary which is entrusted with the task

2 AIR 1982 SC 149

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of keeping every organ of the State within the limits of the law thereby making the rule of law meaningful and effective.”

Likewise the principles of separation of powers and Independence of judiciary are considered to be a part of the basic structure of our Constitution. According to Article 50 of our Constitution "The State shall take steps to separate the judiciary from the executive in the public services of the State." The Hon’ble Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala3 has enunciated that Art.50 is a basic feature of the Constitution. Thus any violation of the basic structure will naturally be considered as violative of our constitution. Thus independence of judiciary has a wide accord under our Indian Constitution. Further the United Nations has set forth a set of standards known as the ‘Basic Principles on the Independence of the Judiciary’. Also ‘The Beijing Principles on the Independence of the Judiciary, 1997’4 adopted at Manila by the Chief Justices of the Asia Pacific Region; and ‘The Bangalore Principles of Judicial Conduct, 2002’5 are two such documents needing particular mention. The essential values stated in the Bangalore Principles are: judicial independence, both individual and institutional, as a prerequisite to the rule of law; impartiality, not only to the decision itself but also to the process; integrity; propriety, and the appearance of propriety; equality of treatment to all; competence and diligence. It concludes with the

3 (1973) 4 SCC 225 4 The Beijing Statement was released following the 6th Biennial Conferences of Chief Justices of Asia and the Pacific, held in Beijing in 1995 and was signed by (19) Chief Justices of the region. The 7th Biennial Conference (Manila, 1997) provided an opportunity for amendment to the original set of principles and the endorsement of the statement by a further (6) Chief Justices. 5 The Preamble to the Bangalore Principles of Judicial Conduct states inter alia that the principles are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.

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need for effective measures to be adopted to provide mechanisms to implement these principles.

Accountability of Judiciary:

Accountability is the sine qua non of democracy. Like every other institution dealing with the public, the judicial arm of the government also is accountable. But the accountability of the judiciary is different from the form of accountability that is expected from the executive or any other public institutions. Expectation of independence and impartiality is much higher from the judiciary than any other organ. Associated with the higher cause of truth and justice, judiciary and the judges have been accorded a distinct position. What the Constitutional provisions provide for is that “there should be an impartial and independent judicial body to adjudicate upon the matters and to act as the interpreter and guardian of the Constitution.” Our Hon’ble Supreme Court in a famous case had rightly asserted that “A single dishonest judge not only dishonours himself and disgraces his office but jeopardizes the integrity of the entire judicial system.”6

The Size and complexities of the judiciary has increased so many times in a modern welfare State. Public information campaigns can enhance the independence and accountability of the courts, by increasing public confidence in and commitment to the system. The society has got a right to demand better governance from the judiciary. Many citizens now want judges to be accountable as they feel that there are no avenues for them to remedy the minor mis-behaviour and mal-treatment of witnesses or litigants at the hands of the judges. They sometimes feel that these minor mis-behaviour and mal-treatment are not corrected by superior courts and that the superior courts would protect their own men and it is useless to make complaints. Therefore, it becomes certain that accountability and transparency are the very essence of democracy.

6 K.Veeraswami v. Union of India, AIR 1991 3 SCC 655

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Constitutional provisions for Judicial Accountability

To protect the judiciary from dangers within, the framers of Indian Constitution considered it sufficient to provide for removal of a judge of a High Court or the Supreme Court in the extreme case of proved misbehaviour or incapacity under Articles 217 and 124 respectively; and to vest the control over the subordinate judiciary in the respective High Court under Article 235. However, one must appreciate that the immunities provided to ensure judicial independence are intended for the benefit of the litigants in particular and the citizens in general. Misuse of these privileges by some, has also led to a call for common standards of conduct and better accountability from the judiciary. Further in pursuance of the provisions of Article 124(5) of the Constitution the Judges (Inquiry) Act, 1968 was enacted to regulate the procedure for investigation and proof of the “misbehavior” or incapacity of a Judge of the Supreme Court or of a High Court and for the presentation of an address by Parliament to the President and for matters connected therewith.

Corruption - A major Threat to Judiciary

“Corruption is an insidious plague that has a wide range of corrosive effects on society. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and it allows organized crime, terrorism and other threats to human security to flourish.”7

-Kofi Annan, Former Secretary General of United Nations

Corruption tends to undercut the legitimacy of the State and make a mockery of the rule of law. Corruption, which springs from the basic human tendency of greed, distorts the whole process of law. In India due to corruption, the very constitutional institutions, which are

7 Mr.Kofi Annan, Former Secretary General of the United Nations, in his foreword to the UN Convention Against Corruption. UNCAC was adopted by the United Nations General Assembly on 31 October 2003 by Resolution 58/4. It was opened for signature in Mérida, Yucatán, Mexico, from 9–11 December 2003 and thereafter at UN headquarters in New York City. It was signed by 140 countries. As of September 2014, there are 172 parties, including the European Union.

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supposed to protect and uphold liberty and rule of law, turn against them. Therefore to the majority of Indians, the only way left is resorting to the local mafia, who are more than willing to dispense rough and ready justice for a price, leading to criminalisation of Indian society. Rule of law and access to justice are the very essence of a modern democracy and without them we cannot call ourselves a great democracy in any sense. It is a very sad issue that corruption has taken roots even inside the judiciary. Several instances could be stated to explain this phenomenon. Justice Sinha is the only Judge impeached. Our Fore-Fathers represented by Constituent Assembly of India framers of Constitution of India then in 1949 impeached Mr. Justice Sinha finding him “guilty of improper exercise of judicial functions, the cumulative effect of which was to lower the dignity of his office and undermine the confidence of the public in the administration of justice…”

In the month of March this year, Hon’ble Judge of Supreme Court Mr.B.S.Chauhan J had stated that “the court had become a haven for the rich and influential”. “What will happen to the ordinary citizen if we hear only cases of rich people? Are we representatives of the rich? We are here for the poor.” The above words he said, rejecting an urgent hearing plea filed by a businessman. Similarly on September 12, 2014, the present Chief Justice of India Hon’ble Justice Mr.H.L.Dattu while dismissing former Haryana Chief Minister, Om Prakash Chautala’s plea for extension of interim bail, said: “Look at the tragedy in our country. Conviction was in January this year by trial court and appeal has been heard; such a quick hearing. In how many cases are we doing so? That’s why the poor man feels that the system cares only for known persons."

We are also bound to examine the plight of under trial prisoners all over our country. They are also in a way vicitims of corruption inside the judiciary indirectly. "There is no denying that such a high percentage of under trials in a jail is a poor reflection of

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the state of affairs of the criminal justice administration," says former Delhi High Court judge Mr.R.S. Sodhi J. The issue was first brought to fore in December 2011 by Delhi High Court judge Mr.S.N. Dhingra J who said " criminal justice system needs overhauling... so that it should not be the case that higher courts are kept occupied by the person with money or power".8 Thus we could now witness that voices have started coming out against the corruption inside the judicial system which has to be routed out in the primary stage itself else it will lead to a collapse of the judiciary and other democratic institutions in our country.

Measures to ensure judicial accountability

One of the ways the Judiciary can be held accountable is when the people have the right to know what exactly they are doing. This comes naturally in a democratic form of government. In the famous ‘Indira Nehru Gandhi v. Raj Narain’ case9, the foundation for the Right to information was laid by the Supreme Court. It stated “the people of the country have the right to know about every public act … this is derived from the concept of freedom of speech… To cover it with the veil of secrecy the common routine business is not in the interest of the public.” This is a chief safeguard against corruption. The Courts were included in the definition of Public Authorities under the present Right to Information Act, 2005. However most of the High Courts did not even appoint Public Information Officers (PIOs) even months after this act came to force. It should therefore be ensured that the adequate Public Information Officers should be appointed by the judiciary and it should be accountable to the citizens under the purview of RTI Act.

The Judicial Standards & Accountability Bill, 2010

The Judicial Standards and Accountability Bill tries to lay down enforceable standards of conduct for judges. It also requires judges to 8 http://indiatoday.intoday.in/story/judges-admit-rich-and-mighty-swift-trials-Supreme%20court/1/395421.html retrieved on 14.10.14 9 1975 AIR 865, 1975 SCR (3) 333

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declare details of their and their family members' assets and liabilities. Importantly, it creates mechanisms to allow any person to complain against judges on grounds of misbehaviour or incapacity. The Judicial Standards and Accountability Bill, 2010 requires judges to declare their assets, lays down judicial standards, and establishes processes for removal of judges of the Supreme Court and High Courts. Judges will be required to declare their assets and liabilities, and also that of their spouse and children. The Bill establishes the National Judicial Oversight Committee, the Complaints Scrutiny Panel and an investigation committee. Any person can make a complaint against a judge to the Oversight Committee on grounds of ‘misbehaviour’.

A motion for removal of a judge on grounds of misbehaviour can also be moved in Parliament. Such a motion will be referred for further inquiry to the Oversight Committee. Complaints and inquiries against judges will be confidential and frivolous complaints will be penalised. The Oversight Committee may issue advisories or warnings to judges, and also recommend their removal to the President. Despite certain drawbacks this bill is in fact a welcome measure and a progressive development in our judiciary.

Appointment of Judges – the NJC:

"To allow the Chief Justice practically a veto upon the appointment of judges is really to transfer the authority to the Chief Justice which we are not prepared to vest in the president or the government of the day".

- Dr.B.R.Ambedkar

We need to discuss openly and freely, the best method of appointing the best judges, for nothing less than the precious constitutional rights of the citizens are at stake. While the appointment procedure does need the breathing space to function freely, it cannot merely be reduced to the plea of primacy of the Chief

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Justice of India. However when reforming the system of appointment of judges, it is also necessary to ensure that there is no imbalance created with the executive having a dominant role. It is suggested that the constitution of a National Judicial Commission [NJC] with representatives from the three organs of the State – the executive, legislative and judiciary; as well as representatives of the Bar Association and the general public. The Commission shall recommend persons for appointment as Chief Justice of India, judges of the Supreme Court, Chief Justices of the High Courts and judges of High Court to the President of India. The following should constitute the National Judicial Commission:

Chief Justice of India, ex-officio Chairperson;

One of the judges of the Supreme Court, nominated by the Collegium of all judges of the Supreme Court;

Chief Justice of one of the High Courts, nominated by the collegiums of High Court chief justices;

The Union Minister of Law and Justice, as ex-officio member 2;

Two eminent persons to be nominated by a collegium consisting of The Prime Minister and the leader of the main opposition party in the Lok Sabha;

A nominee of the Bar Association of India.

It should be ensured that at least one of the above is a woman. Also one amongst the two eminent persons shall be by rotation nominated from amongst persons belonging to scheduled castes, scheduled tribes, other backward classes and minorities. The system of appointment should be transparent and subject to public scrutiny. A mechanism may be devised whereby views on the names proposed to be appointed as judges can be submitted to the Commission.

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Conclusion

The Major task of judiciary at present is to dispense speedy justice and bring relief to the litigant. It is through this way that public trust can be maintained. As the saying goes ‘let justice be done, even though the heaven falls10’. However it is not that the judiciary has completely failed; Lok Adalats and Nyaya Panchayats have definitely helped the people in having an equal and fair justice. A judge can ultimately be deemed accountable if she/he adheres to the normative and ethical principles of her society and culture. It should be asserted that criticism is a way of reinforcing accountability and therefore it must be tolerant.

The need for laws and measures on judicial accountability are the need of the hour. And the Judicial Standards and Accountability Bill 2010 is a ray of hope in this context. However its effectiveness could be reviewed in due course of time. Likewise the National Judicial Commission should be vested with powers to conduct enquiries into the misbehaviour of a judge and to impose minor punishments. In the case of proved misbehaviour or incapacity of a serious nature of the judge, warranting removal, the National Judicial Commission shall request the judge to voluntarily resign. If the concerned judge fails to do so then the Commission shall advice the President to proceed for the removal of the judge by referring the matter to parliament. In brief we could conclude that independence of judiciary and accountability should go together hand in hand complementary to each other. Thus it is our primary duty to ensure that both judicial independence and accountability are ensured properly to the citizens of India by the judiciary and other government agencies.

10 ‘Fiat justitia ruat caelum’ is a Latin legal phrase, meaning "Let justice be done though the heavens fall." The maxim signifies the belief that justice must be realized regardless of consequences.

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RIGHT TO INFORMATION AND PRIVATE SCHOOLS: JUDICIAL DICTA & IMPLICATIONS FOR PRIVATE

AUTONOMY Mimansa Ambastha*

Introduction

Although the Right to Information Act, 2005 (‘RTI Act’) was initially seen as an instrument to increase transparency and accountability in the actions of the bureaucracy and crush corruption1, with passage of time new issues have come up with relation to the scope of the Act. 2 This same has been expanded beyond institutions of governance to bodies that impact citizens’ daily lives. These include several private bodies such as political parties 3 , private aided 4 and unaided schools5 etc.

In recent times, the question of including private unaided schools within the scope of the RTI Act has come to the fore. The Courts have held such schools to come under the contours of the RTI, thereby giving the public the right to approach them and seek information on various aspects of their management and functioning. Such a dictate comes at a time when private unaided schools have already been experiencing falling levels of autonomy in their manner of functioning under the Right of Children to Free and Compulsory Education Act, 2009 (‘RTE Act).6

*4th Year BA LLB (Hons.), National Law University, Jodhpur. 1 Roy, Caesar, Right to Information and its Significance to Ensure Good Governance in India (October 21, 2013) <Available at SSRN: http://dx.doi.org/10.2139/ssrn.2343109> last accessed 14h October 2014 2 Prabhu Chawla, ‘RTI must grow to cover parties and India Inc, not retreat in the name of privacy’, Indian Express, October 13, 2012 3 CIC order No. CIC/SM/C/001386, dated June 3, 2013. 4 Committee of Management, Azad Memorial Poorva Madhyamik Vidyalaya, Kolloura v. State of UP 2008 [2] ID 224; DAV College Trust and Management Committee v. DPI (Colleges) UT, Chandigarh 2008 (2) SCT 543 5 Supra note 1 6 In Society For Un-Aided Private Schools Of Rajasthan v. Union Of India & Another (2012) 6 SCC, the Supreme Court held that even unaided private schools (except for minority unaided schools) would be bound to follow the requirements set under the RTE Act and must share the constitutional burden of the State to provide free and compulsory education to children.

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This paper seeks to study and analyze the merit in the varying legal grounds on which private schools have been brought under the scope of the RTI Act.

Judicial Inclusion of Private Schools under the RTI Act

The inclusion of private schools within the ambit of RTI has been upheld several times in recent years; however, the legal grounds for justifying the same have varied considerably, with Courts applying different types of statutory justifications and interpretative methods.

Primarily, two different legal grounds emerge:

“Public Authority” Ground: The first ground brings private schools under the RTI Act by way of including them under the meaning of ‘public authorities’ under Section 2(h) of the Act.

“Information” Ground: The second ground relies on Section 2(f), which defines the scope of ‘information’ to inter alia include information from private bodies that can be accessed by any public authority, provided that such access is permitted under any law in force.

A. “Public Authority” Ground

The RTI Act empowers citizens with the right to access information under the control of ‘public authorities’. Under Section 4, the RTI Act also mandates that “every public authority shall pro-actively disclose information pertaining to it, and maintain its documents and records to facilitate the right to information under the Act”. By virtue of Sections 3, 5, 6 and 7, every public authority is under a positive obligation to provide information but the information seeker is not under any obligation to disclose why he requests it.7 Thus, any interpretation that brings private schools under the scope of ‘public authority’ will have a great amount of ramifications, as it would enable the general citizenry to access all the information of such private schools similar to any public authority under the Act.

7 Supra note 1, Para 39

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The term ‘public authority’ has been defined under Section 2(h) in two parts. The first part of the definition - clauses 2(h)(a) to (d) - clearly marks out bodies created by the Constitution of India, Parliament, state legislatures, government orders and notifications as public authorities.8 It is the second part - clause 2(h)(d)(i)-(ii) that has been subject to much controversy. The use of phrase ‘and includes’ has been held to widen the scope of the section such that non-government organizations falling under the inclusive part do not have to necessarily be established under a notification. 9 Private schools have been interpreted as such non-government organizations under 2(h)(d)(ii) as long as they fulfill the requirement of ‘substantial financing’.10

Various grounds have been put forward before the Court in favor of bringing private schools under the scope of ‘public authorities’. Some of these grounds are identified below:

‘Public Authority’ must be defined keeping in mind the broad objectives of the RTI Act and the nature of function performed by a body

In Indian Olympic Association v. Veeresh Malik 11 it was successfully argued before the Delhi High Court that the court cannot be constrained in its interpretation of the term “public authority” under Section 2(h) by references to “State” under Article 12 or “other authority or person” under Article 226 of the Constitution, since the purposes of the RTI Act are wider, and meant to create confidence in the mind of the common man by increasing accountability of public institutions. In this context, the court has also accepted that it is

8 Anirudh Barman, Who is a Public Authority under the Right to Information Act, 2005?, Centre for Policy Research - Accountability Initiative, RTI Breifs - Vol. 1 No.5, 27th September 2013, available at < http://polityinindia.wordpress.com/2013/09/27/publicauthoritiesunderthertiact/#comments > last accessed 13th October, 2014 9 Supra note 1, Paras 46-48 10 As of now, no concrete meaning of ‘substantial financing’ exists as courts have repeatedly held that it will be determined on a case-by-case basis. See Dhara Singh Girls High School, Ghaziabad v. State of Uttar Pradesh & Ors 2008 (4) CCC 352 (All); D.A.V. College Trust v. DPI (Colleges) UT, Chandigarh (2008 (2) SCT 543); 11 Supra note 1

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possible that an entity may fall short of being ‘State’ and yet may be a ‘Public Authority’ under the RTI Act.12

The Central Information Commission in its decision13 held that the RTI was especially aimed to bring in transparency in all those institutions that provided services to the masses. Schools - whether private or public - squarely fell within such a category. As a matter of principle such institutions should be open to public scrutiny, seeing how “the activities of the functionaries of the education sector have intense and pervasive influence on every human activity”14

Essentially, this argument is based on the premise that the welfare model requires the government to frequently outsource certain non-derogable functions such as education to non-governmental agencies.15 Section 2 (h) may thus be interpreted to recognize that even non-state actors may be required to assume responsibility of disclosing information that would be useful, necessary and infuse greater openness in matters of public concern.

Such an approach of the Courts can be criticized on several grounds. First, the language of Section 2(h) is indisputably clear in stating that unless it is proved that the school was ‘owned’, ‘controlled’ or ‘substantially financed’ directly or indirectly by funds provided by the appropriate Government, it cannot be held to be a public authority within the meaning of Section 2 (h). Clearly, the criterion stressed upon in the Act is the form of the entity and not the functions that it is undertaking. That the literal meaning is the first and strongest indicator of legislative will is often called the ‘Plain Meaning Rule’ or the ‘Literal Rule’.16 Statutory language is determinative of legislative intent. 17 Thus, the court cannot legislate in the garb of

12 CIC Decision No. CIC/SM/C/2011/000838 dated 03-06-2013 13 D.K. Chopra v. Directorate of Education, GNCT of Delhi, Decision No.1231/IC/a/2007-F No.CIC/MA/A/2007/00104 dated 12.9.2007 (adjunct to decision No.714 IC (A) /2007 dated 14.5.2007) 14 Ibid, Para 6 15 Supra note 1, Para 76 16 Pepper v. Hart [1993] AC 573; Grundy v. Pinniger (1852) 1 LJ Ch 405 17 Shiv Shakti Co-operative Housing Society v. Swaraj Developers AIR 2003 SC 2434

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interpretation 18 and include additional criteria under the Act to be considered while defining who is a public authority. Indeed, such a submission has found its way to the Courts as well.19 Yet, as can be seen from the abovementioned judgments, the courts have often ruled in favor of including private schools under Section 2(h), on the basis that they discharge important public functions, despite such statutory phrasing.

Substantial Financing:

In Indian Olympic Association v. Veeresh Malik20 the question related to the determination of the status of three different bodies as ‘public authorities’ under the RTI. One of them was a private school headed by wives of retired civil servants. The Delhi High Court held that the school had received a grant from the government in the form of a land lease at extremely concessional rates as well as grants from individual departments such as RBI, Customs and Excise etc. to the excess of 24 crore rupees. This led the Court to conclude that the school fulfilled the essential elements of being a non-government organization, under Section 2(h)(d)(ii) of the Act, which is substantially financed by the Central Government, through various departments and agencies.

A similar stance was taken by the Central Information Commission in D.K. Chopra21 when it held that private educational institutes are not only allotted land at subsidized rates but also enjoy a host of income tax concessions. This led the Commission to derive an element of ‘indirect’ Government funding to such institutions.

In Dhara Singh Girls High School, Ghaziabad v. State of Uttar Pradesh & Ors22 the Allahabad High Court held that a private school receiving grants in aid from the State Government for payment of salaries of its teachers and staff members would be substantially

18 Jinia Keotin v. K.S. Manjhi 2003 (1) SCC 730 19 Supra note 1, para 23 20 Supra note 1 21 Supra note 14 22 2008 (4) CCC 352 (All)

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financed by the Government and come under the purview of the Act.23It went so far as to rule that whenever there is even an iota of nexus regarding control and finance of public authority over the activity of a private body or institution or an organization etc. the same would fall under the provisions of the Act.

It is submitted that the basis of evaluation of what constitutes ‘substantial’ financing must be re-examined. As of now, the Courts have refrained from giving a straightjacket meaning to the term ‘substantial financing’ and have instead preferred to determine each case on its own facts and merits.24 This has given Courts considerable leeway in broadening the scope of substantial financing. Determination of ‘substantial financing’ should also take into account whether the grants are of a recurring nature. A one time grant of concessional rates given as a matter of policy cannot mean that the school has lost its essential nature as private entity. The presence of government dominance or influence the affairs or management should also be considered.25

Moreover, if the Central Information Commission’s rationale of ‘indirect funding’ is upheld it would effectively mean that every private school can be said to have been indirectly funded by the government. Such a conclusion leans towards absurdity as every school is allotted land at a concessional rate as part of the Government’s general policy to promote education. Beyond that, private schools are run and managed by private individuals only.

In order to refute the ‘public authority’ ground, one may look at the case of Kuldip Singh v. PIO and Ors 26 . It rejects all the abovementioned grounds and holds that no private unaided school

23 Ibid Para 13 24 Professional Assistant for Development Action (PRADAN) v. The Jharkhand State Information Commission, W.P.(C) No. 4376 of 2009 decided on 10.03.2010 by the Jharkhand High Court; D.A.V. College Trust v. DPI (Colleges) UT, Chandigarh 2008 (2) SCT 543. 25 This was also one of the contentions of the petitioners in Indian Olympic Association v. Veeresh Malik that was eventually rejected by the Delhi High Court. (See Supra note 1 Para 14) 26 CC No. 3308 of 2009, Decided by State Information Commission of Punjab on 28/1/2010 (Full Bench)

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could be termed a ‘public authority’ no matter how important it’s function. The Punjab Information Commission advanced the following reasoning:

o A plain reading of the wordings of Section 2(h) leave no doubt that the nature of function of a body was not considered by the legislature in defining public authorities. If the legislature intended as such it could have included such a criterion within the statute.27 Thus, even though it cannot be refuted that schools perform an important public function, that fact by itself cannot be treated as more important than the statutory text itself.

o The right of privacy is well recognized in Indian democratic jurisprudence. Privacy infringing can only be done in the rarest of circumstances mandated by the law. Thus, requiring disclosures by private bodies without any statutory basis can not be allowed, not even as an exception in some rare circumstances.

The Punjab Commission completely rejected the ‘public authority’ ground and instead held that any private body’s information can only be obtained under the RTI under the ‘information’ ground. It should also be noted that the decision of the CIC in D.K. Chopra was subsequently put to appeal in the Delhi High Court in Purna Prajan Public School v. Central Information Commission & Ors28 where the Delhi High Court upheld the ‘information’ interpretation left the question of the ‘public authority’ ground undecided. This ground will be discussed in the next section.

“Information” Ground

‘Information’ defined under the last part of Section 2(f) includes information from private bodies. The only requirement to be fulfilled is that such information of private bodies should be available to a public 27 The Punjab Commission considered foreign jurisprudence in this regard and remarked that most countries excluded private entities from their RTI legislations. South Africa included private bodies under its RTI Act by express statutory provisions. Such a provision cannot be found in the Indian RTI Act. See Supra note 26 Para 11 28 Writ Petition (Civil) No. 7265 OF 2007 in the High Court of Delhi, Decided on 25th September 2009

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authority under any law in force. Thus “all information including information furnished and relating to private bodies available with public authority is covered by Section 2(f) of the RTI Act.”29

This means that a private school need not be a ‘public authority’ to come under the Act. By way of Section 2(f) the school, while remaining a private body under the Act, will be obligated to furnish such information to the public that it is required to share with a public authority under any law.

The difference in the ‘Public Authority’ ground and the ‘Information’ ground can be understood by referring to pronouncement in Purna Prajan Public School v. Central Information Commission & Ors. wherein the Delhi High Court clarified that the said term ‘private body’ in Section 2(f) has been used to distinguish and in contradistinction to the term public authority as defined in Section 2(h) of the RTI Act.

In the Purna Prajan Public School case the Delhi High Court harmoniously interpreted Sections 2(f) and 2(j), which define ‘information’ and ‘right to information’ respectively. The last part of Section 2(f) was interpreted to broaden the scope of the term ‘information’. The Court reasoned that as long as some law or statute permits the public authority to access the information relating to a private body, it will fall within the perimeter of Section 2(f) of the RTI Act and under 2(j) citizens have the right to such information by approaching relevant public authority 30 (here, the Directorate of Education). The Directorate can then seek information from the private school, which comes under the definition of ‘third party’. Finding the Delhi School Education Act, 1973 to be such a statute, the Court held that under the DSE Rule 50(xviii) of the DSE Rules, the Directorate of Education can issue instructions and can call upon the school to furnish information required on conditions mentioned therein being satisfied.

29 Ibid Para 16 30 Ibid Para 8

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This interpretation has been followed in several recent judgments such as that of the Central Information Commission. In Bindu Khanna v. Directorate of Education & Ors31 the information interpretation was used to order a private unaided school to furnish information relating to a teacher’s service records, leave and other statutory allowances, working hours, medical facilities, pension & gratuity benefits, etc. Similarly it has been held that any information falling under the Management Information System (MIS) which is to be filed by each school (whether aided or unaided) to the Directorate of Education is subject to disclosure under the RTI Act, 2005.32 Thus, if employment details including attendance, salary etc. form an essential component of the Management Information System the same would be required to be disclosed under the RTI Act, 2005 to the Applicant, free of costs.33

Interestingly, the CIC in Ms. Sadhana Dixit v. Directorate of Education34 stated that a teacher has an implied right to information about her service book, leave record and any other information pertaining to her service under Sections 4 and 8 of the Delhi School Education Act, 1973 as well. These sections require the school to abide by the regulatory conditions of service, payment of salaries etc. for which the school would have to maintain the records, which provide an inherent and implied right to information to their employees when read with Section 2(f) of the RTI Act.

The reasoning of the High Court to include private bodies under the scope of Section 2(f) does hold water, as it is undeniable that the words of the provision expressly allow for information of private bodies to be obtained under a statute. Moreover, this reasoning involves the harmonious interpretation of Sections 2(j) and 2(f), which is a well-

31 Decision No.5607/IC(A)/2010 Decided on 14/07/2010 (Presently a writ petition has been filed by the private school in the High Court of Delhi against the order of the Directorate of Education, See The Managing Committee of Pinnacle School & Ors v. Govt of NCT & Anr. CM Appl. 975/2014 (exemption) in W.P.(C) 506/2014, Order passed on 22.01.2014 32 Delhi State Public School Management Association v. Directorate Of Education And Anr. CIC/AD/C/2013/000210/DS Decided on 23/08/2013 33 Akshay Gopsht v. Directorate of Education (GNCT) CIC/AD/C/2013/000210/DS 34 CIC/AD/A/2013/000658SA Decided on 29/05/2014

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settled method of reconciling parts of a statue such that none of them may be negated or nullified. Terming private schools as ‘third parties’ under Section 2(n) would also seem correct as Section 2(n) includes within in its ambit both public and private bodies.

The information interpretation ensures that only limited amount of information would need to be disclosed by private schools. The schools can anticipate this kind of information requirement by referring to the relevant statute. Their status as third parties under Section 2(n) gives them various rights as well. Under Sections 11(1) certain procedural safeguards exist for the schools’ confidential information. The PIO would have to notify the school of the confidential information requested following which the school can make written or oral submissions as to why the same cannot be disclosed. Such submissions will be considered before a final decision is taken as to disclosure. In terms of Section 11(4) of the RTI Act, an order under Section 11(3) rejecting objections of the third party is appealable under Section 19 of the RTI Act before the CIC. Section 19(4) stipulates that when an appeal is preferred before the CIC relating to information of a third party, reasonable opportunity of hearing will be granted to the third party before the appeal is decided. Lastly, the school can also claim that information should not be furnished in case it satisfies any of the sub-clauses to Section 8 of the RTI Act, in which case Section 8 would override any other section of the Act and the information would no longer be require disclosure.

In the Poorna Prajan Public School case the High Court also stated that if there is a bar, prohibition, restriction or precondition under any statute for directing a private body to furnish information, the said bar, prohibition, restriction or precondition will continue to apply and only when the conditions are satisfied and the bar removed, the public authority would be enabled to get information. In this way, the High Court seems to have directed all public authorities to refrain from taking liberties of broad interpretation of such statutes.

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Conclusion

The practice of declaring a wide variety of non-state entities (such as schools, colleges, sports associations, political parties etc.) to fall under the RTI Act has been seen to increase in the past few years. Much of the rationale for the same can be found in the argument that such bodies dispose functions that are significant to public interest. One may wonder that given the RTI Act was aimed to fight corruption and improve efficiency of governance, whether subsequent expansion of the Act’s scope and objectives to include even private entities, which have nothing to do with governance, can be justified at all. Private schools have often (unsuccessfully) raised such an argument on various legal and public forums when the RTI Act has been applied to them. Yet, as of now, the legal position on inclusion of private schools under the RTI Act is clear. The Courts have repeatedly held that such schools cannot escape the standards of transparency and accountability that institutions of such public significance must necessarily satisfy. The only contentious issue that seems to remain is what kind of interpretation courts will finally endorse.

As has already been noted, two major grounds have emerged. Both have very different implications for private schools. From the viewpoint of private schools, the ‘public authority’ ground is relatively a bigger danger to their management privacy then the ‘information’ ground. The former interpretation would include placing certain information in the public domain, scrutiny by the general public through information applications, appointment and maintenance of Public Information Officers and appellate bodies etc., which could arguably strain their functioning and possibly tell on their efficiency. However, the latter interpretation would maintain the nature of these schools as ‘private bodies’ in the eyes of the law. It would only require private schools disclose such information which they are required to disclose to a public authority under statutory compulsions. Thus, the information ground requires a lesser degree of information disclosure.

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The ‘public authority’ ground also appears to be considerably weaker when assessed on purely legal merit. The wordings of Section 2(h) nowhere mention inclusion of bodies under ‘public authorities’ based on the nature of their activities or functions. Since the wordings only focus on the form of the body and not its function as a criterion, adjudicating any private schools as a public authority based on the nature of its functions constitutes judicial legislation. Moreover, even if the schools are brought under Section 2(h)(d)(ii), there is no clear method to compute ‘substantial financing’.

On the whole, the author concludes that the purpose of law is better served by way of bringing private schools under the ‘information’ ground of Section 2(f). It ensures that private schools will fall under the RTI Act, and yet have some leeway in keeping their affairs to themselves.

As the Indian democratic society evolves in it’s sophistication and mobility, there seems also to be an evolution of limitations to private rights and private autonomy imposed by the law in the name of public interest. The issue of private unaided schools being brought under the ambit of a legislation which grants anyone the right to invade upon their institutional and managerial privacy seems be an ideal example of the same. It is hoped that such access is put to good use by the authorities in achieving increased transparency in the private schooling system without taking the form of unnecessary harassment and hindrance.

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REMOVAL OF DIRECTOR CONFLICT WITH THE PRINCIPAL OF NATURAL JUSTICE

Pallavi Agarwal*1

Introduction

A company is an artificial person created by law and it does not a physical existence of its own and exists only in the eyes of law. As such it cannot act by itself and acts instead through human agency. The person through whom it acts and by whom the business of the company is conducted are known as directors. Section 29(1) of the Companies Act, 1956 lays down that the board of directors of a company shall be entitled to exercise all such powers and to do all such acts and things, as the company is authorized to exercise and do.

Who is a Director? Section 2(13) defines a director as any person occupying the

position of a director, by whatever name he is called. It means that a person who performs the duties of a director will be known as a director irrespective of the name by which he is called. It may be pointed that a director is a person who is responsible for direction, control and management of the affairs of a company. Since a company is an artificial person, it is director who exercises the powers of a company on behalf of it. What is Principal of Natural Justice?

The opportunity to be heard by and impartial decision maker is at the heart of the rules of natural justice and procedural fairness. The rules of natural justice apply whenever the rights, property or legitimate expectations of an individual are affected by a decision.

A word used to refer to situations where audi alteram partem (the right to be heard) and nemo judex in parte sua (no person may judge their own case) apply. *4th Year, B.B.A, L.L.B. (Hons.), Symbiosis Law School, Noida; India;, The Author available at [email protected]

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These two basic legal safeguards govern all decisions by judges or government officials when they take quasi-judicial or judicial decisions. 2

The Principal of Natural Justice has come out from the need of man to protect himself from the excesses of organized power of man. Natural law is of the ‘higher law of nature’ or ‘natural law’ and it is another name for common sense justice.

The Principle of Natural Justice is considered as the basic Human Rights because they attempt to bring justice to the parties naturally.

Removal of Director

The Companies Act, 1956 also talks about the removal of director which can be grouped under the following three heads:

1. Removal by the Shareholder [Section 284] 2. Removal by the Central Government [Section 388B to 388E] 3. Removal by Company Law Board [Section 402]

Removal by Shareholder Conflict with The Principal of Natural Justice

Section 284 recognizes the inherit rights of shareholders to remove the directors appointed by them. It is not even necessary that there should be proof of mismanagement, breach of trust, misfeasance or other pursued by the directors. Where the shareholders feel the policies pursued by the directors or any of them are not to their liking, they have the option to remove the director by passing and ordinary resolution in the same way as they have the right to appoint directors by passing an ordinary resolution.

Section 284 provides that a company may, by ordinary resolution passes in the general meeting after due receipt of a special notice, remove director before the expiry of his term of office.

2 Retrieved from http://www.justice4you.org/natural%20_justice.php (Last Accessed 01-03-2014)

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But in the case of Queen Kuries & Loans (P.) Ltd. Vs. Sheena Jose 3, it was held that the notice must disclose the grounds on which the director is proposed to be removed.

Sub section (2) of Section 284 requires a special notice of the proposed resolution to appoint or to remove a director. When such a resolution is proposed by a shareholder, it was held in Pedley v. Inland waterways Assn, Ltd.,4 that the requirements for the circulation of a member’s resolution must be satisfied at the same time.

On receipt of the special notice for removal of a director, the company must forthwith send a copy thereof to the director concerned to enable him to make representation. If he makes a representation in writing and requests the company to notify it to the members, the company must, unless it is received by it too late for it to send to the members, state the fact of the representation to every member of the company to whom notice of meeting is sent. If the representation is not sent as aforesaid, the company must at the instance of the director read it out at the meeting. The director is also entitled to be heard on the resolution at the meeting.

In the case where a director is removed by the shareholder of the company the three basic principles of Natural justice will prevail:-

The Hearing Rule

This rule requires that a person must be allowed an adequate opportunity to present their case where certain interests and rights may be adversely affected by a decision-maker. To ensure that these rights are respected, the deciding authority must give both the opportunity to prepare and present evidence and to respond to arguments presenting by the opposite side. When conducting an investigation in relation to a complaint it is important that the person being complained against is advised of the

3 1993 76 Comp. Cas. 821 4 1977 1 All ER 209 (Ch D)

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allegations in as much detail as possible and given the opportunity to reply to the allegations.

In the case of removal of director since shareholder have the ultimate power to remove the director they should exercise such power without giving the opportunity to the director to make representation in front of the board.

Any omission to serve special notice constitutes denial of statutory right of the director to make representations and persuade the members to reject the resolutions for his removal.

In Tarlok Chand Khanna v. Raj Kumar Kapoor5 , it was held that, in the absence of a notice to the director, the proceedings of the meeting whereat the resolutions for his removal was considered were invalid.

The Bias Rule

This second rule states that no one ought to be judge in his or her case. This is the requirement that the deciding authority must be unbiased when according the hearing or making the decision.

Additionally, investigators and decision-makers must act without bias in all procedures connected with the making of a decision. A decision-maker must be impartial and must make a decision based on a balanced and considered assessment of the information and evidence before him or her without favoring one party over another.

Even where no actual bias exists, investigators and decision-makers should be careful to avoid the appearance of bias. Investigators should ensure that there is no conflict of interest which would make it inappropriate for them to conduct the investigation.

As referred above that in the case of removal of director by shareholder it is not even necessary that there should be proof of mismanagement, breach of trust, misfeasance or other pursued by the directors. Where the shareholders feel the policies pursued by the directors or any of them are not to their liking, they have the option to remove the director by passing and ordinary resolution in the same way

5 1983 54 Com cases 12, 28 (Del)

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as they have the right to appoint directors by passing an ordinary resolution.

This is an unfair mean to remove a director and the decision made is of a bias nature. Here it conflict with the principal of natural justice where the removal of a director is not filed in good faith because shareholders are misusing there power of removing a director for their own benefits.

In the case of Dabur India Ltd. V Anil Kumar Poddar6 it was held that where it appeared that the notice proposing the resolution for removing a director was not filed in good faith, it being printed and carried gaps which require fillings, it was held that such notice was an abuse of the statutory power. The company was not bound to place the notice before the general meeting.

The Evidence Rule

The third rule is that an administrative decision must be based upon logical proof or evidence material.

Investigators and decision makers should not base their decisions on mere speculation or suspicion. Rather, an investigator or decision maker should be able to clearly point to the evidence on which the inference or determination is based.

Evidence (arguments, allegations, documents, photos, etc.) presented by one party must be disclosed to the other party, who may then subject it to scrutiny.

Meaning and Significance of the Right of Making Representation against Removal

The meaning and significance of the right of making representation against removal by the director concerned was explained in detail by the Bombay High Court in Escorts Ltd. V. Union of India7 . The court said that when a meeting is requisitioned by some shareholders for the purpose of removing a director, the requisitionists

6 2001 4 Comp LJ 351 7 1985 57 Com Cases 241 (Bom)

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must disclose the grounds on which they want to proceed against the director. This is necessary because the company has to inform the director before hand of the resolution to remove him so as to enable him to exercise his statutory right of making a representation to the shareholder about the matter. The right of representation will be an empty formality if the proposed action does not inform the director concerned of the grounds on which he is sought to remove since he will not know what representation he should make. The court held that a notice which did not specify the grounds failed in its purpose and the company would be compelled to call the meeting for the consideration of the resolution. Further, the notice of the meeting must be accompanied by a copy of the resolution and an explanatory statement. This is necessary because without it the rest of the shareholders would be gropping in the dark since they would not know why a director unsnimously elected by them only sometime ago, and against whom there is no adverse report, is sought to be removed. When a combination of shareholders is going to change the very composition of the company’s Board of Directors and thereby the future destiny of the company, the power of removal must be exercised in good faith in the interest of the company and not on account of other motivators. The court can if it finds the existence of improper motives refuse to compel the company to hold the requisitioned meeting.

Compensation for Wrongful Removal

In the Companies Act, 1956 sub-section (7) of Section 284 acts as a safeguard for those director who were wrongfully removed. Compensation or damages can be claimed not only for the termination of the office, but also for any other office which will terminate along with that office, such as that of managing director.

Sub section 4 of Section 318 puts a ceiling on the amount of compensation payable to a director for loss of office. Thus sub section provides that any payment made to a managing or other director in pursuance of sub section (1) shall not exceed the remuneration which

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he would have earned if he had been in office for the unexpired residue of his term or for three years, whichever is shorter.

Legal position of a director of a company is described as agents, trustees or managing partners by various judges. The basic duty of a director is to work towards the benefit of the company and administer those assets and perform duties which are in the best interest of the company not their own personal advantage.8

So where a director works for their own personal advantage and not in the best interest of the company will his removal be in conflict with the principal of natural justice?

Supremacy of the majority is the fundamental principal of company law. Generally, a majority of members of a company is entitled to exercise the powers of the company and to control its affair. There is no doubt that directors enjoy wide powers in respect of controlling, directing and managing the affairs of a company. Since director are appointed by majority shareholders and have major powers they work according to majority shareholders as he is appointed by them in that case removal of a director can be done by Central Government and Company Law Board.

Removal by Central Government

Under Section 388B, the Central Government has the power to make reference to the Company Law Board against the managerial personnel. The power can be exercised where, in the opinion of the Central Government, there are circumstances suggesting:

a. That any person concerned in the conduct and management of the affairs of a company is or has been guilty of fraud, misfeasance, persistent negligence or default in carrying out his obligations and

8 Majumdar, A.K. “Company Law”, Taxmann Publications (P.) Ltd., New

Delhi, 2012. Pg. 347

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functions under the law, or breach the trust in connection therewith; or

b. That the business of the company is not or has been conducted and managed by such person in accordance with the sound business principles or prudent commercial practices; or

c. That the business of the company is or has been conducted or managed by such person in a manner which is likely to cause or has in fact caused, serious injury or damage to the interest of trade, industry or business to which such company pertains; or

d. That the business of the company is or has been conducted and managed by such person with an intent to defraud its creditors, members, or any other person or otherwise for a fraudulent or unlawful purpose in a manner prejudicial to public interest.

The reference may be made by stating a case against the person aforesaid with a request that a Company Law Board may inquire into the case, record finding as to whether or not such person is fit and proper person to hold the office of director or any other office connected with the conduct and management of any company (Section 388C).

At the conclusion of the hearing of the case, the Company Law Board shall record its finding, stating therein specifically as to whether or not the director is a fit and proper person to hold the office of the director or any other office connected with the conduct and management of any company.(Section 388D)

On the basis of the aforesaid findings, the Central Government may, by order, notwithstanding any other provision contained in the Act, remove the delinquent respondent (Director) from his office. The said order must not, however, be passed against any person unless he has been given a reasonable opportunity to show cause against the order.

After the delinquent person has been, by order, removed, he shall not hold any office for a period of five year from the date of order of the removal, nor will he be paid any compensation for loss of office as a result of removal. The time limit may, however, be relaxed by the

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Central Government with the previous concurrence of the Company Law Board.

Removal by Company Law Board (Now Tribunal)

Where an application has been made to the Company Law Board under the section 397 or 398 against oppression and mismanagement of a company’s affair, the Company Law Board my order for the termination or setting aside of an agreement which the company might have made with any of its directors.

Such a director shall not be entitled to serve as manager, managing director or director of the company without leave of the Company Law Board for a period of five years from the date of Company Law Board order terminating or setting aside his contract with the company. He shall also not be entitled to claim any compensation from the company for the loss of office.

Oppression and Mismanagement

Section 397 lays down that when the affairs of the company are being conducted in a manner prejudicial to public interest or in manner oppressive to any member or members, an application may be made to the Company Law Board for appropriate relief.

If oppression is of this kind is established, the Company Law Board may, with a view to bring to an end the matters complained of, make such an order as it thinks fit.

Here the meaning of oppression is referred to an act performed in a burdensome, harsh and wrongful manner. In other words, to prove oppression the complaining shareholder must be under a burden which is unjust or harsh or tyrannical.

If the acts of the director are unjust and are conducted in the manner prejudicial to public interest or to the company those acts will be held oppressive and application can be made for his removal.

The removal of the director will be as per the procedural fairness but if the act done by the directors are actually prejudiced to

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the company then the director will not allowed to get any benefit or reduction in the liability from such procedural fairness.

Conclusion

As from the above discussion Removal of director will be in conflict with the Principal of Natural Justice when the majority power held by the shareholders in the case where a director can be removed by passing a special resolution is done without providing justified grounds for his removal or when the removal is not done in a good faith. It will further be in conflict with the Principal of Natural Justice if the director is not given a right to represent himself/herself in front of the Board and the grounds for his removal his not told to him/her.

But if director of a company is not working towards the benefit of the company rather he is working for his own personal advantage or working for the majority shareholders and it is proved by conducting a proper investigation then the removal of the director will be according to the procedure provided in the Company Act but he/she will not be able to derive any benefit or reduce his/her liability by applying the Principle of natural justice as at that point they have the majority powers and they are the ones who exploited those powers.

BIBLIOGRAPHY

1. Majumdar, A.K. “Company Law”, Taxmann Publications (P.) Ltd., New Delhi, 2012.

2. Ramaiya, A. “Guide to Companies Act 16th Edition”, Lexis Nexis. 3. Company Act Bare Act

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PUNISHMENT AND THE CRIMINAL SYSTEM: A CRITICAL ANALYSIS

Anurag Dasgupta*

“Every Saint has a past, and every Sinner a future”

-Oscar Wilde

Introduction

Crime has been present in the social milieu from time immemorial and so has been punishment. The relation between the two has been that of great debate. As both of them are indispensable part of criminal system, any conflict between the two distorts the criminal system as a whole and ultimately, the society at large which is an indispensable part of it, and cannot afford to escape from its aftermaths. Hence the relation becomes an important field of study for anyone concerned with law or society for that matter.

There were various schools of thought to study the origin of a criminal inside a human being; the earliest school includes the Classical School which underlines the hedonistic principle of pain and pleasure theory. There were many sociologists like Rush(1812),Ray(1833), Richard(1836) who have described crime as a response guided by passion and not will, something which is bound by instructive impulse; out of control for the offender1. Anthropological Theories state that it is the sub human ancestral traits like receding lower jaw, meeting eyebrows etc. which is responsible for the criminal characteristics in a person2. Many sociologist have pointed out that it is the competitiveness in the society that indirectly encourages the gathering of resources through dishonest means. Other sociologists have however

*4th Year Student, Chanakya National Law University, Patna 1 KD Gaur, Criminal Law: Cases and Materials (Lexis Nexis Buttersworth,5th edn.,2008). 2 ibid

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stated that it is the environment with which a person interacts that shapes his school of thought and line of action.3

Punishment: Philosophical Approach

Punishment as a concept is very important for the welfare of the society, hence to assume that punishment as a concept would be spared from the wraths of Philosophers would be untrue. Philosophers have dissected the need and functions of punishment in different manners based upon their individual perceptions; however theses perceptions are so strong and rational that discussing them at length becomes inevitable.

Principle of Deterrence

The principle strongly advocated by Bentham who felt that the deterrence form of punishment would act as an antidote for healing the society at large. This form of punishment underlines the theory of fear and pain to be inflicted by punishment. There are generally two target groups for such punishment. The first group consists of the criminals who are punished for their wrong deeds and also that they are deterred from repeating the offence in future. The second target group consists of the potential offenders. However as Bentham has cautioned that the deterrence theory would work only when the pain inflicted is greater than the pleasure derived from the crime4. It is only then that the criminals or the potential offenders would cease to commit crimes. The theory is consonance with the hedonistic principles of pain and pleasure and is promoted to a great extent under the Utilitarian theory because the basic idea of utilitarianism is promotion of happiness and the theory of deterrence is considered of great importance as it punishes the handful of antisocial while securing the interest of the society at large.

However the theory of deterrence has been severely criticised too, while there are many sociologists who feel that the principle is not

3 Ibid 4P. Bean, Punishment: A Philosophical and Criminological Inquiry 30(Oxford England, 1981).

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actually very helpful in controlling crime. There are many sociologists who have stated that the theory lacks completely any scientific rational, many have questioned on the fact that as to whether treating adults akin to children actually leads to deterrence or not and also as to whether it is actually a temporary solution, not healing the actual wound. Andanaes5 has stated that the society can be divided into two parts:

The first one as Bentham calculated consist of the people who calculated the difference between the magnitude of pleasure obtained from committing the crime and the pain inflicted from the punishment and thereby act accordingly. However the second type consist of the criminals who are not at all rational, who do not calculate while committing a crime but act out of their instinct. For such people the theory of deterrence hardly would have any impact. Also the fact that a punishment is perceived differently by different people raises question as to whether a deterrent would have any favourable effect on the society. There are essentially four types of people, law abiding for whom the whole theory is blatantly useless; The hardcore criminal for whom any form of fear provided by the law is ineffective; The amateur or potential offenders who might be deterred up to some extent; The kinds of people who perceive any deterrence as a form of challenge put in front of them by law and this contrary to the sociological approach encourages them to commit any crime.

Also there is yet again the question as to whether the punishment inflicted by the authorities is just and balanced or is it too excessive that the infliction of violence and disregard for human rights becomes the actual objective hidden under the cloak of the theory of deterrence.

Retribution

The theory of retribution basically justifies the form of punishment in the sense that it is something that has been earned by 5 J.Andaneaes , “Does Punishment deter crime?”in,Gertude Ezorsky(ed), Philosophical Perspectives On Punishment 342-357 (1972).

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the offender through his misdeeds and he is liable to undergo the punishment. The retributive principles have been defined as the moral link between the punishment and the guilt and see punishment as a question of responsibility or accountability.

The theory of retribution has been present since time immemorial and rather is one of the most anarchic forms of punishment, the theory of lex talionis which called for “an eye for an eye, tooth for a tooth and life for life”. Although it was retribution in its extreme form; however was subject to chastisement as it did not acknowledge the presence of mens rea and treated an accident on equal dais with that of an intentional crime. However of late the perception regarding the retributive aspect has changed or rather improved with various sociologists calling for a proportional punishment.

According to this theory every individual owes some responsibility towards the society as a whole and any breach therein; leads to the punishment which such individual deserves for committing the breach of responsibility and duty.6

Unlike the deterrence it is a form of punishment which stresses on the offender’s past deeds. Hence Walker7 went to the extent of saying that retributive punishment is a payment of what is owed .The offenders are paying debt to the society. But unlike fiscal responsibility where once the debt is cleared the everything else is restored for the offender; in criminal case especially these even after the punishment has been served the offender is never returns back to square one. There remains a void throughout his life which he has to carry even though he reforms himself from within. For Von Hirsch8 justified the retributive aspect through the concept of censure. In this he described that the retribution is a mode through which the society communicates it’s disapproval to the offender and the offender responds through undergoing the sentence. In the due process it also serves as deterrence 6 HLA Hart, Punishment and Responsibilty (OUP,2ndedn.,2007). 7 N.Walker, “Why Punish?” 73 (OUP,1991). 8 A.Von Hirsch, “Censure and Proportionality” in Antony Duff and David Garland(eds), A reader on Punishment 112-132(1994).

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to third parties. Feinberg9 has added saying that the punishment is not mere disapproval but rather a way of expressing “vindictive resentment”. The justification of the retributive cases has been laid down under two heads. The first justification has been given by Garfinkel10 in Walker in which he stated that a crime is an infringement to the conduct of the conduct laid down by society, not meting out punishment would lead to double infringement which would prove detrimental for the growth of the society. The second justification is since the criminal has obtained undue advantage and benefit over the good conduct of others, hence he needs to be punished11 . Not only would it ensure fair system but would also encourage the law abiding citizens to continue with their conduct. However such principle is highly volatile and may lead to unjust treatment on the offenders in the name of justice, since there is very little possibility of anybody seeking revenge to be bound by the theory of proportionality and this theory applies to the society on the whole as well-meaning thereby very little expectation of justice on the part of offender.

By 1970’s and 1980’s there was a need felt for reforming the retributive theory. This endeavour laid to the birth of Just Desert principle which is a more reformed and the theory gained popularity in the view of the existing unfairness in the criminal system of retribution. Just deserts proponents emphasize the notion that punishment should be proportionate; that is there should be a scale of punishments with the most serious being reserved for the most serious offences and that penalties should be assessed according to the seriousness of the offence.12

Rehabilitation 9 J.Feinberg, “The Expressive Function of Punishment”in Antony Duff and David Garland(eds),A Reader in Punishment 71-91(1994). 10N. Walker, “Why Punish?” 84-85 (OUP, 1991). 11CL. Ten, Crime, Guilt and Punishment- A Philosophical Introduction 5 (Oxford England: Clarendon Press,1987). 12 B. Hudson, Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory 40 (Buckingham, England: Open University Press,1996).

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The principle of rehabilitation is an offender centric form of punishment. Under this principle the sentencing policy must take into account the nature of the crime, the circumstances, social background from where a criminal belonged etc. the rehabilitation principle indirectly solves both the objectives pertaining to the theory of deterrence as well as retribution. In the theory of rehabilitation a person is allowed meted out punishment which actually takes account of the various accompanying circumstances under which the crime was committed and hence allows the offender to introspect on his misdeeds while at the same time enabling him to build a moral barrier which would deter him from committing any crime in future. According to Bean13 the rehabilitative principles see crime as a disease and the rehabilitative principle as a cure to it. However the concept of rehabilitation started losing out its base from the late 1970’s because although the concept of rehabilitation was very appealing practically it was not possible. On one hand where the cases were piling up and clogging the judicial system it was not possible for the judge to start enquiring about the social background of the criminal and make it offender centric judgement. Secondly this would mean a boon for the defence counsels as they would now try to increase the already existing burden on the prosecution for proving the case. The defence counsel could now cause unnecessary delay in the disposal of case by trying to make the social background and circumstances of the criminal in to foray.

Incapacitation

Under this principle the offenders are placed in custody for long period of time, to protect the public from chance of future offending14. Under this principle there is basically removal of thereof the offender from the society akin to quarantine; which nullifies his chance to commit the offence in future. It is mainly aimed at the seasoned

13 P.Bean, Punishment: A Philosophical and Criminological Inquiry 54 (Oxford England:Martin Robertson,1981). 14 H. Morris, “A Paternalistic Theory of Punishment” in Antony Duff and David Garland.(eds.),A Reader on Punishment 238 (1994).

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criminals who are insulated from the other punitive aspects provided by the law, and are not suitable for undergoing any form of treatment.

This theory however creates lots of problem, Firstly following the incapacitation theory religiously means flooding of jail with inmates who have either committed any crimes or have high probability of doing so in future. Secondly it entails failure on the part of the criminal machinery and epitomises its inability to tackle the criminal. Even in medical sciences a person was quarantined when there was no cure for the ailment, Incapacitation speaks the same for the criminal justice system Lastly this type of theory does not entails any kind of objectives from the offender point of view, neither it aims to deter them nor reform them nor rehabilitate them, hence in a time when people are demanding a welfare government and criminologists and human rights activists are aiming at offender-centric punishment, such theory is bound to face chastisement.

Restorative Justice

According to Braithwaite15 restorative justice aims at restoring the offenders, victim and the society. Such form of punishment essentially aims at healing the society and encourages the participation of victim, offender as well as the community as a whole by bridging the gap between them. The theory according to Braithwaite aims at restoring everything right from the lost property to the sense of justice in the society. Community service is a leading example on the restorative justice.

Van-Ness and Strong16 while summarising the ingredients of restorative justice has laid down the following points:

1. Justice requires the healing of victims, offenders, and communities injured by crime.

15 J. Braithwaite, “Restorative Justice.” in Michael Tonry(ed),Handbook of Crime and Punishment 323-344, (1998). 16 D.Van Ness and K. H. Strong, Restoring Justice. 8-9(Cincinnati, OH: Anderson, 1997).

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2. Victims, offenders, and communities should be permitted to actively involve themselves in the justice process in a timely and substantial manner.

3. Roles and responsibilities of the government should be rethought and in its promotion of justice, government should be responsible for preserving a just order and the community should be responsible for establishing peace.

However this theory too has to undergo a great test of time in the sense that it appears to be too idealistic concept. If a crime has been committed then the society as a whole is enraged, only few persons can be expected at maximum to reconcile with the criminal, however the society at large would never allow the criminal to be a part of the justice. More importantly reconciliation might lead to encouragement on the part of the criminal to commit further crimes as chances in restorative justice is high that the criminal in question would not realise his guilt in the process of reconciliation and restoration.

Recommendations

There have been innumerable recommendations by the carious law commission however the researcher has advocated only that recommendation which appealed to his rational and are in consonance with his school of thought. First and foremost the ambit of Section 53 must be increased as recommended by the fifth law commission. Since the punishment enumerated are not on consonance with the present social milieu. It was drafted at a time when deterrence was the only ruling their however with development of society, the treatment towards crime has also changed; section 53 in which case creates a obstruction for the judiciary. Secondly over the time a question has arose in criminal sentencing that, no doubt by sentencing an offender the criminal repents for his wrongs and pays for it; but the legitimate question arises as to how does that aid the victim? In view of the above question the law commission highlighted the need of victim compensation, which according to the view of the researcher is of immense importance, because although a loss caused to the victim can

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never be compensated; pecuniary compensation however comes the closest form of an attempt to compensate.

Also the Law Commission recommended for the insertion of Section 76A which spoke for the inclusion of public censure as a form of punishment. The researcher is of the opinion that for some offences where the offender is repeated offender e.g. cheating or forgery the name, address, offence and the punishment imposed to be published in the newspaper at the expense of the offender. This will serve two purposes; firstly it would deter any potential offender from further committing the said offence, secondly it would allow the public to be aware about the offender’s identity and can hence take precautions accordingly. The Fourteenth Law Commission also recommended that the amount of fine be increased by 50 times as the value of rupees has increased manifold over the time. Since the quantum of fine imposed at present by the IPC hardly has any punitive impact. Lastly the commission recommended that the community service as a reformative measure must be given more prominence.

One more aspect that the researcher wishes to highlight is curbing the fallacy in the principle of sentencing. In case of Dhananjoy Chattterjee v State of West Bengal17,the accused , whose mercy plea was rejected on August 4, was kept at Alipore for nearly 14 years. He was then executed. This is a grave case of miscarriage of justice, in the sense that when one accused has been kept in prison for as long as fourteen years and after that he was hanged almost raises a point of contravention of the principles of double jeopardy. In case of Rudal Shah v/s State of Bihar18 the Supreme Court ordered a compensation of 30,000 for illegal detention. Although the above two cases are dissimilar in nature; however both of the cases highlight the drawback in principle of sentencing by the court. In such situations chances are high that people would be encouraged to blanket the legal system as they would lose faith in the principle of sentencing.

17 (1994) 2 SCC 220. 18 AIR 1983 SC 1086.

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Overall the researcher is of the opinion that India should adopt a body of punishment which although has ingredient of all the theories but principally it is retributive in nature. That the essential principle of the punitive theory must be to direct the public angst towards victim, in a legitimate manner, however the system as a whole must at the same time endeavour to deter the potential offenders as well, while at the same time the offender must also be endeavoured to be reformed. However progressed is mankind, a little amount of fear is always necessary on the part of sovereign to control the mankind from deviating. When a criminal commits any crime, it is the society at large that is effected and hence unless and until the society is given a vent to express its anger through legitimate means, it will never have faith on the criminal justice system and would time and gin try to take law in its own hands. Although it might sound prudish but unless and until the society gets an opportunity to seek vengeance through legitimate means, it would never be satisfied as a result a dormant unequilibrium would continue to remain in the society causing unwanted repercussions. Recently in Nirbhaya Rape Case the country saw some shades of the public retribution and whenever there is crime there is always a potential public retribution just that in some cases it ebbs a little, only to rise again when a vent is provided through some other cases. If according to the retributive theory the law is treated as a mouthpiece for venting out the public anger then the criminal system would be revered much more. Every person as a human being has some duty towards his fellow being and any fallacy in the duty should be punished adequately. In this process most of the crime caused with the motive of vengeance would be controlled (which generally constitute the first time criminals) because then a person would have more faith in the system seeking vengeance than himself.

Of late there has been too much shift to accused centric judgement; however we must remember that too much shift to strive for the justice of the accused means injustice meted out towards the victim. Undoubtedly the accused must also be taken into consideration, however such provisions and discretions have already been granted to

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the Judges by the code. In Indian criminal system at least due to the welfare oriented democratic government, there has been many path breaking judgements which have time and again re-echoed the rights of the offenders; whether be it the prisoner’s right to live with dignity in jail19; or formulating the principle of rarest of rare cases in awarding death sentences20. Hence in such situations it is likely that the victim’s right and his protection that gets overshadowed. Notwithstanding the fact that India’s policies are utmost democratic and humanitarian in nature; however that should not lead to a feeble penal system; which does not exude even the slightest amount of fear amongst the potential offenders.

More than striving to reform the offender, if endeavour is made to improve the prison environment as a whole such that the prisoners(especially the career criminals) are allowed to live a life of dignity inside the prison then they would juxtapose their past with present and chose the present, because the greatest problem with the offenders are after they commit crimes all chances of dignified life are taken away from them by society as a result they never know what is right hence they cannot judge that their act is wrong ; then that would be much more feasible and favourable towards criminal justice. In the process the offender would be punished by serving a jail sentence, thus quenching the society’s thirst for punishment at the same time he would also have chance to be reformed.

Conclusion

Blatantly speaking the approach of punishment towards a crime is very similar to that of a doctor towards a cyst. The doctor may choose to remove the cyst from the body, he may choose to remove the whole part of body affected by it, he may try to heal the patient itself, he may quarantine the patient altogether etc. Punishment, criminal system and society are interlinked together in such a manner that even a slight disturbance in either of the component, disturbs the complete equation,

19 Sunil Batra v Delhi Administration AIR 1980 SC 1570. 20 Bachan Singh v State of Punjab, AIR 1980 SC 698.

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and for the survival of mankind peacefully the equilibrium of such equation is must. The researcher has from his limited knowledge tried his level best to deal with the functions of punishment and its various justifications and the model of punishment,that would be the best for the Indian criminal system. However all said and done, there still remains a question yet to be answered and much to be pondered as to who decides the right and wrong existing in the society in the first place? Just because majority of the people have been espousing a particular principle from a long time makes it right? Also does that mean any person, who decides to question the well-established principle, through his act or otherwise is a social deviant and hence should be punished?

The researcher unfortunately has no answers on the point.

References

PSA Pillai, Criminal Law(LexisNexis Buttersworths Wadhwa, 10th edn.,2011).

H Morris “A Paternalistic Theory of Punishment” in Antony Duff and David Garland.(eds.),A Reader on Punishment (1994).

Braithwaite J, “Restorative Justice.” in Michael Tonry (ed.),Handbook of Crime and Punishment (1998).

D VanNess. and KH Strong, Restoring Justice.(Cincinnati, OH: Anderson,1997).

A.Von Hirsch, “Censure and Proportionality” in Antony Duff and David Garland (eds), A reader on Punishment (1994).

J.Feinberg, “The Expressive Function of Punishment”in Antony Duff and David Garland (eds),A Reader in Punishment 71-91(1994).

HLA Hart, Punishment and Responsibilty (OUP,2nd edn.,2007).

N.Walker, “Why Punish?” 73 (OUP,1991).

CL. Ten, Crime, Guilt and Punishment- A Philosophical Introduction 5 (Oxford England: Clarendon Press, 1987).

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B. Hudson ,Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory 40 (Buckingham, England: Open University Press,1996).

P. Bean, Punishment: A Philosophical and Criminological Inquiry 30(Oxford England, 1981).

D.Garland,Punishment and Modern Society,(OUP,Oxford,1990).

A.Flew, “The Justification Of Punishment”,(1954).

KD Gaur, Criminal Law: Cases and Materials (Lexis Nexis Buttersworth, 5th edn.,2008).

Purpose of Punishment, available at http://www.sagepub.com/upm-data/5144_Banks_II_Proof_Chapter_5.pdf (last visited May 27, 2013).

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CHALLENGES CONCERNING DOMINANCE: THE INDIAN PERSPECTIVE

Ramanpreet Kaur Sandhawalia*

Divyanshu Bhandari*

Introduction

The Competition Commission of India is the new regulatory authority with the sole objective of maintaining competitive neutrality to promote fair competition in the markets1. Empowered with a broader spectrum of powers like the right to levy fines etc. by issuing a 630 crore fine on DLF2 or by passing a 95 page order against the NSE3, the body solidified its presence rendering it a formidable institution, unavoidable to ignore. However these emboldened decision upon further inspection, highlight certain critical lacunas which prevent the body from exercising its full potential. This seepage of rot was luckily caught early by the GOI and lead to the drafting of the Competition (Amendment) Bill, 2012 to block these holes before the ship sinks. One such hole ironically concerns the stringent definition of Dominant Position itself which serves as the backbone of the entire act. Following Dworkins Theory the government in a bold move introduced an exhaustive definition to Dominant Position to pin point exactly what constitutes an anti competitive breach. Similar to Dworkins theory this definition too suffered from the same critical fatal flaw that burdened by its exhaustive nature it needed to be updated periodically to keep in sync with society. Therefore the primary aim of the authors through this essay is to identify the key issues which need to be taken into

*&** BBA.LL.B. (Hons.), 4th year, MATS Law School, MATS University, Raipur (C.G.) 1http://www.cci.gov.in/images/media/presentations/CompetitionLawAndGovernmentGeetaGouri.pdf (accessed on 2/6/14) 2 http://indianexpress.com/article/business/companies/dlf-to-move-sc-as-compat-upholds-rs-630-cr-cci-fine/ (accessed on 1/6/14) 3 http://businesstoday.intoday.in/story/compat-cci-order-nse-mcx-sx/1/208894.html(accessed on 29/5/14)

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account by the new Competition (Amendment) Bill, 2012 particularly concerning the Concept of Abuse of Dominant Position.

History

The Post Independence Period

The world economy has witnessed various economic systems i.e. the system of laissez faire, capitalist, collectivism, mixed economy and social welfare. When markets progressed through these phases it was evaluated in a variety of forms.

In the Indian scenario; Post independence one of the major area that grabbed attention of the public at large was ‘What type of economic system would India adopt?’ We subsequently selected a centrally planned economic structure widely referred to as the Nehruvian Socialism Model aptly named after our first Prime Minister. This Model inculcated a mixed model –that neither mirrored the market economy of the United States of America nor mimicked a socialist one like USSR4. Under this mixed model, both the private and public sector harmoniously co-existed, a mixture of capitalist and collectivist form of economy. Pandit Jawahar Lal Nehru further promoted this socialist thinking to resist the capitalist path of development in free India.

The approach behind this model was to promote inclusive economic growth and social justice5. In case of economic objectives, the government reserved within its purview key strategic industries such as mining, electricity and heavy industries to better serve the public interest. Also to keep check on the functioning of private sectors,

4 Nishith Desai, COMPETITION LAW IN INDIA: A REPORT ON JURISPRUDENTIAL TRENDS AND WAY FORWARD INTRODUCTION, April 2013, http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB0QFjAA&url=http%3A%2F%2Fwww.nishithdesai.com%2Ffileadmin%2Fuser_upload%2Fpdfs%2FResearch%2520Papers%2FCompetition%2520Law%2520in%2520India.pdf&ei=-LDcU8yXCYa2uAS94YKYAQ&usg=AFQjCNHVcI-5VrhAiMouR1tKWLJa5mdTZQ (accessed on 3/6/14) 5R. Radhakrishnan and Manoj Panda, Macroeconomics of Poverty Reduction : India Case study, http://www.igidr.ac.in/pdf/publication/PP-057.pd

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Industrial (Department and Regulation) Act of 19516(IDRA) was introduced. This act empowered the Government to regulate almost every aspect of the internal functioning of the private sector visa vie size of plant and production size, price of goods produced and its distribution, foreign trade and exchange control etc.

However the results of this model was unsatisfactory. Though the objective of the licensing system was to direct resources towards social desire, the discretion unjustly emboldened, discriminatory practices by government authorities, resulting in over intrusion in key decisions relating to private industries, which further lead to adverse trade barriers hampering competition and reduction in efficiency and consequently, the growth of the economy.

After the failure of this model the government was compelled to initiate reform, this reformative wave began when Rajiv Gandhi came into regime in mid-1980. Although the reforms were limited in the mid 1980’s but they acted as a stable platform for the wholesale reform of 1991. The same year we faced the balance of payment crises7. Further reforms were introduced under the guidance of then finance minister and ex Prime Minister of India Mr. Manmohan Singh. Ever since 1991 many rounds of reforms have taken place to usher India into a market based economy. These reforms have influenced every aspect of our economic policy including important economic legislations.

Despite more than a decade of independence, it was apparent that the Nehruvian model was not yielding desirable results. The economy was growing at less than 3% per annum and income growth was around 1.75%. Being concerned the then government appointed Mahalanobis committee in October, 1960 to look into the reason for this inequality in the distribution of resources and level of living. The committee noted that the big business houses were concentrating economic power under their shades. On account of recommendations 6Act No. 65 of 1951. 7 BERNARD WEINRAUB, Economic Crisis Forcing Once Self-Reliant India to Seek Aid, N.Y. TIMES, June 29, 1991, http://www.nytimes.com/1991/06/29/world/economic-crisis-forcing-once-self-reliant-india-to-seek-aid.html

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made by the committee the government constituted the Monopolies Inquiry Commission (MIC) in 1964 to deal with the problems faced. The MIC found that the extent and effect of concentration in private section had reached a devastating level i.e. there was more than 85 percentage of concentration of power in industrial items in India. The MIC also found that the then licensing policy in the country had enabled big business houses to secure a disproportionately bigger share of licenses resulting in pre-emption and foreclosure of capacity8. The MIC became well aware of the economic concentration of power has suggested the introduction of the MRTP Bill. The MRTP Act was notified in the year 1970 and in August 1970, the MRTP Commission was set up.

Fall Of MRTP Act And Making of The Competition Act, 2002

The Monopolies and Restrictive trade practices Act, 1969 (MRTP Act) was the operative competition law of India until it was repealed in the year 2009. One may think why it's significant to discuss a repealed act? The simplest answer is that, a discussion of the MRTP Act is important to mainly determine the context in which the Indian legislature enacted the new competition legislation and the jurisdictional development of competition law over the last four decades.

The very next thing to be discussed is what the objectives were behind the MRTP enactment? The MRTP Act aimed at preventing-

a) Economic power concentration in a few hands and curbing monopolistic behavior and

b) Prohibition of monopolistic, unfair or restrictive traded practices.

8Mehta Pradeep S; Competition and Regulation in India – Leveraging Economic Growth Through Better Regulation, http://www.pradeepsmehta.com/pdf/Competition_and_Regulation_in_India 2009_Leveraging_Economic_Growth_Through_Better_Regulation.pdf

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The intention was both to protect consumers as well as to avoid concentration of wealth9.

Now the reason behind the fall was a need for globalization, when India opened up its economy by bringing about liberalization, it increased internal and external competition. Also MRTP Acts primary emphasis was upon the control of monopolies, whereas the present need was to promote competition10. Among various other reasons, one of the major was the obligation cast on India by the World Trade Organization. Seeing the above the Central government appointed in 1999, a high-level committee on competition policy and law (‘the committee’) to study the Indian economy and make appropriate recommendation to meet the needs of the country.

The Committee’s Assessment

After making an extensive study of government policies and their effect, the inadequacy of Indian industries to compete effectively, the committee suggested that there is a need for vigorous steps to create an environment in which competition may be exist within a legal framework. The committee whilst formulating its report further kept in mind, the obligations rendered by the WTO agreements such as, Article VI of GATS that stated that no discriminative practices must be opted when enterprise of one country is operating in other country who are member of WTO, or Article 40 of TRIPS which provided for the control of anti-competitive practices in contractual license as relevant. In this way the committee made recommendation relating to each field for the government to consider and take appropriate action.

The committee’s major recommendations were:

(a) The MRTP Act should be repealed and an Act called Competition Act must be enacted,

9 Jaivir Singh, Monopolistic Trade Practices and Concentration of Wealth : Some conceptual problems in MRTP Act, Economic and Political Weekly, Vol. 35, No. 50 (Dec. 9-15, 2000), pp. 4437-4444. 10 Dr Avtar Singh; Competition Law; 1st ed., Lucknow, Eastern book Company; 2012

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(b) There should be progressive reduction and ultimately elimination of reservation of products for small-scale industries and hand loom sector,

(c) The economic reforms of liberalization, deregulation and privatization should be further progressed,

(d) The proposed legislation should cover all the industries in the public and private sector and professional services.11

Following the report submitted to the government the Competition Act, 2002 was passed.

Abuse of Dominant Position

To understand how dominant position is abused the first thing to understand is what one means by dominant position? The dictionary meaning of the word ‘dominant’ is ‘overriding’ or ‘influential’. Now coming to the legislative definition i.e., Section 4 of the Competition Act is the operative provision of the Act dealing with the abuse of dominant position. This provision is broadly fashioned on the European Union prohibition on abuse of dominance contained in Article 102 of the Treaty on the Functioning of the European Union (TFEU).

The definition of dominant position provided in the Competition Act is similar to the one provided by the European Commission in United Brand v Commission of the European Communities12 in the particular case the Court observed that “a position of strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitor, customers and ultimately of its consumers.” So the elements that constitute dominant position are:

11T. Ramappa; Competition Law In India: Policy, Issues And Development; 2nd ed., Oxford India Paperbacks;. 12 [1978] ECR 207

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i. A position of strength,

ii. That position being enjoyed in a relevant market in India and

iii. Such a position that gives the enterprise the power to ‘operate independently of competitive forces in the relevant market’.

From the above mention criterion it becomes clear as to what exactly constitutes dominant position

One of the important things here is what does relevant market means as the term has been repeated in section as well as in various cases. The Competition Act defines relevant market as ‘with the reference to the relevant product market or the relevant geographic market or with reference to both the markets’13.

The relevant geographic market is defined as “a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighboring areas14”. The Competition Act further provides that the CCI shall determine the relevant geographic market having due regard to all or any of the following factors15:

i. regulatory trade barriers;

ii. local specification requirements;

iii. national procurement policies;

iv. adequate distribution facilities;

v. transport costs;

vi. language;

vii. consumer preferences; 13 Competition Act, 2002 explanation (a) to Section 2 (r) 14 Competition Act, 2002: section 2 (s). 15 Ibid section 19 (6).

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viii. need for secure or regular supplies or rapid after-sales services.

Further relevant product market is defined as ‘a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use16’. The Competition Act provides that the CCI shall determine the relevant geographic market having due regard to all or any of the following factors17:

i. physical characteristics or end-use of goods

ii. price of goods or service

iii. consumer preferences

iv. exclusion of in-house production

v. existence of specialized producers

vi. classification of industrial products

Once CCI has determined the relevant market, the next task is to establish whether or not the enterprise is enjoying the dominant position. It is important to note here that the Competition Act does not prohibit the mere possession of dominance that could have been achieved through superior economic performance, innovation or pure accident but only its abuse18.

The Competition Act sets out following factors which the CCI will take into account to establish the dominant position of an enterprise19:

i. market share of the enterprise;

ii. size and resources of the enterprise;

iii. size and importance of the competitors;

16 Ibid section 2 (t). 17 Ibid section 19 (7). 18 United States v. Grinnell Corp., 384 U.S. 563 (1966) 19 Competition Act 2002; Section 19 (4)

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iv. economic power of the enterprise including commercial advantages over competitors;

v. vertical integration of the enterprises or sale or service network of such enterprises;

vi. dependence of consumers on the enterprise;

vii. monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise;

viii. entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;

ix. countervailing buying power ;

x. market structure and size of market;

xi. social obligations and social costs;

xii. relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition;

xiii. any other factor which the Commission may consider relevant for the inquiry.

Now the next step of CCI is to establish the abuse of its dominance by an enterprise. The Act sets out a list of activities that shall be deemed abuse of dominant position20:

i. anti-competitive practices of imposing unfair or discriminatory trading conditions or prices or predatory prices,

20 Ibid Section 4 (2).

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ii. limiting the supply of goods or services, or a market or technical or scientific development, denying market access,

iii. imposing supplementary obligations having no connection with the subject of the contract, or

iv. using dominance in one market to enter into or protect another relevant market.

The list of abuses provided in the Competition Act is meant to be exhaustive and this broadly follows the categories of abuse identified under 102 of TFEU21. The Competition Act also exempts certain unfair or discriminatory conditions in purchase or sale or predatory pricing of goods or services from being considered an abuse when such trading conditions are adopted to meet competition.

So from the above it becomes clear how the dominant position is abused. Also how the CCI would be able to determine the abuse.

Challenges and Issue

1) Issue of Collective Dominance - described as a position where two or more entities together hold a position of joint dominance on the market and to maintain their dominance work in collusion with one under as a synchronized unit22.

Therefore incase two or more conglomerates start working hand in hand to stifle competition in a specific market sector, they continue to remain un-apprehended. Since even in Sec 4 (1) of the Act and the explanation of dominant position under Explanation E(a) particularly alludes to a enterprise in singularity not plural this issue remains unaddressed.

This issue was further observed by the Commission in the case of Consumer Online Foundation vs. TATA Sky Ltd23 that “Indian law 21 Treaty on the Functioning of the European Union; Article 102 22 Karolina Ryman, Collective Dominance - How It Is Interpreted And How Does Is Correlate With Tacit Coordination, Stockholm University http://fr.slideshare.net/karolinarydman/collective-dominance-karolina-rydman-13171127) 23 INDIA Case No. 2 / 2009 Date: 24.03.2011

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does not recognize collective abuse of dominance as there is no concept of ‘collective dominance’ which has evolved in jurisdictions such as Europe.”

Therefore we humbly propose the inclusion of an amendment to Sec 4(1) to further add the word and Groups along with the word Enterprises to prevent large scale entities from enjoying this loophole and working in collusion with one another. Since the literal meaning of the word group in itself defines group as "A number of people or things that are located together or are considered or classed together24" Therefore in the future if the commission is able to recover evidence establishing a link between two or more entities working together jointly to create a dominant position and use it to unjustly enrich themselves they can easily be apprehended for anti-competitive practices and charged accordingly.

2) Issue of Section 27(b) and (g) of the Competition Act, 2002 - The following provision deals with the CCI powers to impose a fine in case of breach of dominant position under Sec 4 of the Act. Such a penalty can either be 10 % of the average turnover of the last 3 fiscal years or up to 3 times the profit or 10% of the turnover whichever is higher. However incase under Sec 4 a fine was imposed due to a lack of corresponding provision within Sec 27 (b) the guilty were never given a hearing when the quantum was postulated. This is not only against the principle of Audi Alter Partum but more importantly against the principle of natural justice as a whole. This is because due to a lack of procedural clarity in deciding the quantum from the above mentioned categories an accused is usually fined the heaviest from the above mentioned fields without even being given a chance to rebut.

This contention was further collaborated in the case of Hindustan Steel Ltd. vs. State of Orissa 25 where even the SC held that “an order imposing penalty for failure to carry out a statutory

24 http://www.iltb.net/2012/07/a-few-thoughts-competition-law-technology-media-sector/#disqus_thread 25 1970 SCR (1) 753

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obligation is the result of a quasi- criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances.”

Various other judgment collaborate this fact that there is a need to promote reasonability and clarity in the CCI's judiciously exercising its right to levy a fine26.

3) Issue of Counteraction - Another issue which arises is whether a commercial viability/protection of commercial interests can be used as a defense to Sec 4 of the Act. The act is silent on this issue while in Europe in the case of United Brands vs. the Commission27 it was justified as a defense subject to the condition that to even protect its interest the dominant party can only take an action proportional to the threat and economic strength of the parties involved.

Therefore Eg. If in India, if a market is divided between a dominant partner enjoying 40% market share and 3 other parties with 20 % each since there is no concept of collective dominance the question arises that what if the 3 parties although individually minorities join together to force the dominant party out of the market. In such a scenario the law is silent of whether the dominant party can take an act to protect its own self interest or not.

4) Applicability of Essential Facilities Doctrine - The doctrine is a legal defense where a company uses a bottleneck situation to deny competitors entry into a particular market. The justification for this bottleneck is merely twofold where

26 Kesar Enterprises Limited vs. State of Uttar Pradesh and Others, 2011(13)SCC733, 27 1978, Celex No. 676J0027 27/76

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a) the dominant company is able to prove the inability to practically duplicate the essential facilities required

b) the unjust feasibility of providing such an essential commodity into the hands of a new competing party

The dilemma lies in the fact that while in Commonwealth countries like U.K., Australia etc. this doctrine is justified as a means to prevent the exploitation and wastage of essential resources, in many countries like the United States this doctrine has been quashed indirectly in antitrust cases like The United States vs. the Terminal Railroad Association Case28 etc.

The issue in India simply lies in the fact that as per Section 4 limiting markets, practices result in denial of market access and leverage to protect another market are specific instances of abuse of dominant position29. The question arises whether this internationally acclaimed doctrine is a just defense to Sec 4 and further does this definition include within its ambit the concept of Essential Facilities. Since both these answers remain unanswered one can merely hope for the best.

5) Dichotomy of Section 19(4) of the Competition Act - This clause defines the various factors under which, the Commission has grounds to inquire under Sec 4 of the Act30. One such factor included is Vertical Integration of the Market. Here however Vertical Integration is defined visa vie Vertical Agreements under Sec 3(4) of the Act. This section makes reference to the provision of services to judge adverse effect of dominant position31, however the sub types like tie in arrangements, refusal to deal etc are only in context of sale of goods thus services remain outside their ambit when deciding matters of dominant position.

28 224 U.S. 383 (1912) 29 http://competitionlawyer.blogspot.in/ 30 http://cci.gov.in/images/media/ResearchReports/31092012.pdf 31 http://www.psalegal.com/upload/publication/assocFile/ENewslineJanuary2013.pdf

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Therefore to prevent any dichotomy between the law and its explanation where one includes services while the other doesn't, an amendment is required to provide clarity to both the parties and the adjudicator involved.

Conclusion

Keeping in mind the challenges and issues raised, the authors would first like to point out that there are no fatal flaws in the legal construction of the definition of dominant position itself nor any archaic lacunas which deviates the entire section completely from its intended purpose. We merely contend that since an exhaustive definition to the above mentioned concept has been provided mere minor amendments are required to allow the law to keep pace with society and visa vie improve the structural efficiency of both the act and the institution itself. Therefore to solve these minor lacunas we propose the following amendments.

Incase of an issue of Section 27(b) (g) we propose the addition of a provisio granting the guilty party a chance for a hearing before an order levying a fine is passed by the CCI. This will not only promote the concept of fairness but will further reduce the appeals to both COMPAT and the SC as well.

Since the CCI in its own judgment directly stated that the Competition Act did not envisage the possibility of collective dominance by amending the provision as per the arguments advanced above it would allow the CCI to render justice tempered to the satisfaction of both the strong and the weak entities.

In terms of both the dichotomy and the applicability of Essential Commodities either a legislative amendment or a tribunal order shall be satisfactory in answering both these problems and further promote a harmonious balance to the orders passed by the institution.

In summation the system adopted today while having its minor lacunas is one of gold, we as the authors support its overall mechanism wholeheartedly but merely offer our suggestions to prevent it from

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turning into rust by vehemently championing the cause of inducing periodical amendments to help keep this system in sync with society at large.

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MEDICAL NEGLIGENCE & CONSUMER PROTECTION IN INDIA

M.Vijayendra Kumar*

Introduction

Practice of medicine is capable of rendering great service to the society provided due care, sincerity, efficiency and skill are observed by doctors. Medical profession has its own ethical parameters and code of conduct. This profession is rendering a noble service to humanity and has sustained itself on public trust. According to voluntary Health Association of India, the present state of medical profession seems to mirror the rot, which seems to have sent into our system. Increased mechanization and commercialization of profession has brought in an element of dehumanization in medical practice. Health care has now been reduced to a business, which determines the patient-doctor relationship. It is in this context that the question of consumer protection has become significant in the medical profession. Medical Negligence has come to the fore as an important issue to be dealt with and for which solutions have to be arrived at for the welfare of common man.

Medical Negligence:

The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments it is said have assigned various meanings to negligence. The Apex Court in Jacob Mathew v. State of Punjab1, observed:

Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the

* BABL [Hons.], School of Excellence in Law, The Tamilnadu Dr.Ambedkar Law Univesity, Chennai – 28. 1 (2005)6 SCC 1

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neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. The definition involves three constituents of negligence:

A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty;

breach of the said duty; and consequential damage.

The Hon’ble Supreme Court explained that the jurisprudential concept of negligence differed in civil and criminal law. What might be negligence in civil law might not necessarily be negligence in criminal law. ‘Criminal Negligence’ is an offence against the State while ‘Civil Negligence’ is an offence against the individual act, which leads to injury i.e. physical injury, hurt- Section 319, grievous hurt- Section 320 Indian Penal Code (IPC). Loss of property (financial loss) due to some negligent act is always a civil negligence. The decision of the Supreme Court delivered on last year raises a fresh debate on the issue of ‘Criminal Negligence by the Doctors’. In this case the Supreme Court relied on various decisions of the House of Lords.

High degree of negligence is necessary to prove the charge of criminal negligence u/s 304-A IPC. For fixing criminal liability on a doctor or surgeon, the standard of negligence required to be proved should be as high as can be described as “gross negligence”. It is not merely a lack of necessary care, attention and skill. Negligence to amount a criminal offence, the court held, element of mensrea must be shown to exist.

Applicable Laws in Medical Profession:

The Indian Medical Council Act, 1956 regulates the profession of allopathic medicine by constituting Medical Council of India (MCI) and the State Medical Councils. Also it � Authorizes the Medical

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Council of India (MCI) to recognize the medical qualifications granted by any authority or institution of India or other Countries.

Authorizes the MCI to maintain a register of medical practitioners to be known as the Indian Medical register, which consists of the entries of all the State registers of medical practitioners. Empowers the State Medical Councils to punish persons who falsely claim to be registered or misuse titles and when medicine is practiced by unregistered persons, with fine or imprisonment of both.

Authorizes the MCI to prescribe standards of professional conduct and etiquette or code of ethics for medical practitioners. The violations of these standards constitute infamous conduct (professional misconduct).

State Medical Councils are empowered to take disciplinary action when prescribed standards of professional conduct and etiquette or Code of ethics are not observed by the doctors and violations which constitute professional misconduct/ Infamous conduct. Under the following circumstances, a doctor can be temporarily or permanently debarred from practicing medicine. They include:

Improper or indecent conduct towards the patient Conviction in a court of law Failure of dereliction of duty in giving professional certificates,

reports and other documents Contravening the Drugs and Cosmetics Act, 1940 Selling scheduled poison Performing or abetting an illegal operation Receiving or giving commission or using touts Employing unqualified persons Associations with (drug) manufacturing firms Advertisements Running shops (dispensing chemists) etc. Failure to give professional service for certain things on

religious grounds

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An aggrieved patient can complain to the State Councils about a registered medical practitioner about an alleged wrong committed by him. The Council initiates proper hearing where the concerned doctor is given adequate opportunities to represent his side. If it arrives at the conclusion that the doctor has indeed committed an act, which involves an abuse of professional position that might reasonably be regarded as disgraceful or dishonorable by professional men of good repute and competence, the doctor is either given a warning notice or temporarily or permanently debars him for practicing medicine. The Council does not have any statutory powers to award any compensation to the aggrieved patient or legal heirs.

World Medical Association’s International Code of Medical Ethics which was adopted by the 3rdGeneral Assembly of the World Medical Association, London, England, October 1949 and amended by the 22nd World Medical Assembly Sydney, Australia, August 1968and the 35thWorld Medical Assembly Venice, Italy, October 1983, provides the following duties to the physicians:

Duties of Physicians in general

A Physician shall always maintain the highest standards of professional conduct.

A Physician shall not permit motives of profit to influence the free and independent exercise of professional judgment on behalf of patients.

A Physician shall in all types of medical practice, be dedicated to providing competent medical service in full technical and moral independence, with compassion and respect for human dignity.

A deal honestly with patients and colleagues, and strive to expose those physicians deficient in character or competence, or who engage in fraud or deception.

The following practices are deemed to be unethical conduct: Self-advertising by physicians, unless permitted by the laws of the

country and the Code of Ethics of the National Medical Association.

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Paying or receiving any fee or any other consideration solely to procure the referral of a patient or for prescribing or referring a patient to any source.

A Physician shall respect the rights of patients, of colleagues, and of other health professionals and shall safeguard patient confidences.

A Physician shall act only in the patient's interest when providing medical care which might have the effect of weakening the physical and mental condition of the patient.

A Physician shall use great caution in divulging discoveries or new techniques or treatment through non-professional channels.

A Physician shall certify only that which he has personally verified.

Duties of Physicians to the sick

A Physician shall always bear in mind the obligation of preserving human life.

A Physician shall owe his patients complete loyalty and all the resources of his science. Whenever an examination or treatment is beyond the physician's capacity he should summon another physician who has the necessary ability.

A Physician shall preserve absolute confidentiality on all he knows about his patient even after the patient has died.

A Physician shall give emergency care as a humanitarian duty unless he is assured that others are willing and able to give such care.

Bolam’s Test

In the landmark case of Bolam v. Friern Hospital Management Committee 2also known as Bolam Case, the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (eg. Doctors) was laid down. Where the defendant has represented him or herself as having more than average skills and abilities: this test expects standards which must be in accordance with a responsible body of opinion, even if others

2 [1957]1 WLR 582

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differ in opinion. In other words Bolam test states that “if a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”. However Bolam test was criticized for its overreliance on medical testimony and personal judgment of experts chosen by the defendant. Bolam has been subsequently modified by the Bolitho ruling.

Also in the English tort case of Whitehouse v Jordan and another, 3where an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiff's head to become wedged with consequent asphyxia and brain damage. The trial judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasizing that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the views of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Doctors in India may be held liable for their services individually or vicariously unless they come within the exceptions specified in the case of Indian Medical Association v. V. P. Santha & others4 Doctors are not liable for their services individually or vicariously if they do not charge fees. Thus free treatment at a non-government hospital, governmental hospital, health centre, dispensary or nursing home would not be considered a “service” as defined in Section 2 (1) (0) of the Consumer Protection Act, 1986.

In a key decision on this matter in the case of DrLaxmanBalkrishna Joshi v. DrTrimbakBapuGodbole5, the Supreme Court held that if a doctor has adopted a practice that is considered “proper” by a reasonable body of medical professionals who are skilled in that particular field, he or she will not be held negligent 3 [1981] 1 ALL ER 267 4 10 AIR 1996 SC 550 5 AIR 1969 SC 128

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only because something went wrong. Doctors must exercise an ordinary degree of skill. However, they cannot give a warranty of the perfection of their skill or a guarantee of cure. If the doctor has adopted the right course of treatment, if she/ he is skilled and has worked with a method and manner best suited to the patient, she/ he cannot be blamed for negligence if the patient is not totally cured.

Kishan Rao’s Case

In its landmark judgment in V. Kishan Rao v. Nikhil Super Speciality Hospital6 the Supreme Court recently held that ‘there cannot be a mechanical or straitjacket approach that each and every medical negligence case must be referred to experts for evidence’. This judgment is a welcome decision for better achievement of the objectives of the Consumer Protection Act, 1986. In V. Kishan Rao v. Nikhil Super Speciality Hospital the Complaint’s wife got admitted in Respondent hospital, who was suffering from fever and chills. She was wrongly treated for typhoid instead of malaria for four days. As a result of said wrong treatment she died. On the complaint, District Forum found that there was negligence on the part of the hospital and awarded compensation. The order of the District Forum was reversed by the State Commission and as well by the National Commission. But the Supreme Court set aside the orders passed by the State Commission and National Commission and restored the order passed by the District Commission. In this case the Supreme Court held that “in the context of such jurisprudential thinking in England, time has come for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases in medical negligence and specially in view of Article 21 of the Constitution which encompasses within its guarantee, a right to medical treatment and medical care”.

The Supreme Court further declared that “this Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis 6 (2010) 5 SCC 513

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of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory”. The consequence of the judgment in V.Kishan Rao is that now the Consumer Fora in the country need not necessarily refer the cases of medical negligence to expert committee before issuing the notice to the doctor or hospital accused of medical negligence.

Conclusion

The development of law pertaining to professional misconduct and negligence is far from satisfactory. The legislations are not adequate and do not cover the entire field of medical negligence. In a situation where medical services are commercialized applying the rule of “ordinary skilled professional standard of care” laid down in Bolam’s case in establishing the medical negligence may not do the proper justice to the injured patients. It is submitted that the judiciary while deciding medical negligence cases, more incline may be showed towards injured patients ensuring them higher medical skills at the hand of doctors rather applying “ordinary skilled” rule.

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“INTERNATIONAL ENVIRONMENTAL LAWS TO SECURE SUSTAINABILITY”

Miss Purnima Singh*

Introduction

The maintenance of the factors and resources that contribute to the quality of environment on a long – term basis.

The survival of all living things of all communities depends on the conservation of our natural environment. The United Nations’ Millennium Development Goals call for worldwide efforts to ensure environmental sustainability1.

Issues such as deforestation, biodiversity and habitat loss, excessive use of natural resources, air and water pollution, and global climate change all inflict challenges for communities across the world. Understanding environmental problems, their causes, and their solutions is significant for sustainable global future.

Now, the planet has deteriorated resulting into species becoming extinct every day, very few rain forests remain, and basic habitats for animals have disappeared. Pollution and smog are serious threat to mankind; toxic carcinogens that cause cancer are present in water, air and the atmosphere degrading the quality of food we eat everyday and thus leading to hazardous diseases.

And while richer countries are coping with these issues and taking steps to reverse the trends of destruction, poorer countries are impacted more negatively causing them even more suffering and pain. For poorer nations, reversing the damage is greater since basic necessities are required.

What preserving the planet and reducing slum dwellers have in common?

*2nd Year, B.A.,LL.B, College of Legal Studies, University of Petroleum and Energy Studies , Dehradun. 1 http://www.developmentgoals.com/environment/ (Last Accessed 20-03-2014)

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One of the biggest problems that is important to both issues, is the rapid growth of urbanization. It is evident that as urban areas develop, damage is done to the environment resources by ruining the natural habitat but also damage is done to human beings.

Many people worldwide are living in deplorable conditions. So while targets have been set that show progress can be made, the consequences are dire enough if we, as a planet, do not put halt to this emerging trend.

Sustainability basis its belief that we can coexist with the environment if we work in a manner that are not harmful to it. Profitability brings about economic growth to our society and many businesses are based on making profit that leads to degrading the environment, which also plays significant role in economic role. Profitability and environmental sustainability surely can co-exist. “Can you imagine a world where the environment is completely destroyed,”2 then what would be the logic of making profits if there are no resources to sustain our lives or a world where the resources are there but not using them.

Both statements are significant, none is above the other but both are equally important to our society. Present challenges to business experts are ensuring profitability with using environmentally sustainable methods. It is possible for businesses to make a profit and still sustain the environment.

The bank of America proved that it is possible to make profit and still sustain the environment. According to their website, they reduced their use of paper by 32% in the year 2001 to2005 and still managed to grow by 24%3. This case study showed clearly that profitability and environment sustainability can definitely co-exist.

From this it is inferred that you are not only sustaining the environment but as a lot of money will be saved. Furthermore,

2 www.sustainablevalue.com/downloads/postersustainableprofit.pdf(Last Accessed 20-03-2014) 3 www.environmentalleader.com(Last Accessed 20-03-2014)

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customer will be attracted towards the sustainable methods of business therefore leading to more profit.

Factors Cause Problems for Environmental Sustainability

The ecological footprint

The core problem of environmental sustainability is human consumption. The larger a nation's ecological footprint, the more resources it requires, the more waste it generates and the more climate change affects it. The ecological footprint provides a general number that gives an approximation of environmental sustainability.

The IPAT equation

The IPAT equation gives an impact-based set of factors that allow a more elaborate assessment. This equation states that environmental sustainability equals the environmental impact of a nation's activities, which is determined by multiplying three factors4:

The size of the population (P),

The level of affluence of that population as expressed in production per person (A) and

The level of technology as expressed by the amount of pollution generated per unit of production (T).

A rise in any or all of these factors can increase environmental impacts and decrease sustainability.

Sustainable Countries

Applying the IPAT equation to different countries indicates varied environment impact and sustainability levels.

For example, an agrarian country with a large population but low affluence and simple technology like Guyana rates as more sustainable than a developing country that uses polluting technology, like Iraq.

4 www.ehow.com › Business(Last Accessed 20-03-2014)

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Sustainable Businesses

The factors that cause problems for environmental sustainability are more complex within the business organizations. More than 700 leading experts from around the globe have determined a set of factors that affect environmental sustainability in companies, including sustainability based policies and strategic planning processes5.

Climate change is the topical issue affecting the whole planet presently.

Climate change causing hazards are increasing day by day. It can cause hindrance to the achievement of the MDGs as they have the possibility to reverse years of development.

Climate change and global poverty must be fought simultaneously as 75% of the world’s poor people reside in rural areas and depend on natural resources for their livelihoods and income. They suffer the most from natural disasters as they do not know how to deal with the drastic impact of major catastrophes for instance the 2004 tsunami (Haiti earthquake)6.

Impacts caused due to climate change are following

Decline in agricultural productivity: The areas worthy for agriculture, the yielding capability of staple food, and the length of growing seasons are all meant to decline day by day.

For instance:

African countries could see agricultural yields decrease by 50% by 2050 and crop net revenues could fall by as much as 90% by 2100.

Increased water stress: Changing climate patterns will have significant implications for water availability across the globe

5 www.sustainablebusiness.com/(Last Accessed 20-03-2014) 6 sustainablebusinessoregon.com(Last Accessed 20-03-2014)

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Rising sea levels: Sea levels could rise rapidly with accelerated ice sheet disintegration across the globe.

Risks to human health: Climate change will affect human health through factors such as changes in temperature, exposure to natural disasters, access to food and air quality.

Threats to ecosystems and biodiversity: Climate Changes cause loss of habitat and biodiversity. Study shows that 25-40% of mammal species such as zebra could become endangered by 2080.

Global efforts are key to ensure environmental sustainability. Industrialized countries are responsible for the most of green house gas emissions. Thus, significant reductions in emissions today can only be attained through emerging markets.

Developing and emerging countries agreed for a global climate if they are supported.

For instance, Africa's vast rainforests and natural resources could be invested in through re-forestation and agro-forestry programs to provide sustainable livelihoods

Methods to Ensure Environmental Sustainability

The Millennium Development Goals (MDGs) are known as eight international development goals that were established by Millennium Summit of the United Nations in 20007, following the adoption of the United Nations Millennium Declaration. All 189 UNITED NATION members at the time (there are 193 currently) and at least 23 international organizations committed themselves to attain the following Millennium Development Goals by 2015 are as follows

1. To eradicate extreme poverty and hunger

2. To achieve universal primary education

3. To promote gender equality and empower women

7 www.un.org/millenniumgoals/(Last Accessed 20-03-2014)

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4. To reduce child mortality

5. To improve maternal health

6. To combat HIV/AIDS, malaria, and other diseases

7. To ensure environmental sustainability

8. To develop a global partnership for development.

Specific targets and dates for achieving those targets are set to each goal. There are eight goals with 21 targets and a series of measurable health factors and economic factors for each target.

Therefore, the core area of discussion is the seventh goal of MDGs is to “ensure environment sustainability”.

Goal 7: Ensure environmental sustainability

TARGET 7A: Integrate the principles of sustainable development into country policies and programs; reverse loss of environmental resources

The Term sustainable development was brought into common use by the world commission on environment and development in its reports (WCED). Sustainable development is a development that meets needs of the present without compromising the needs of future generations.

The emerging concept of ‘sustainable development’ which is now central plan to many businesses, government organization educational institutions and non-government organizations all over the world.

There is historical importance attached with the word “Sustainable Development”, tracing the widening understanding of sustainable development from the 1980s up to the present times. This history includes landmark international events such as the 1987 Brundtland Report, the 1992 Earth Summit in Rio de Janero, the 1997 Rio+5 Conference and the 2000 Millennium Summit in New York, and the 2002 World Summit on Sustainable Development in Johannesburg.

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The idea of sustainable development was highly appraised at the United Nations Conference on Environment and Development (UNCED) at a Rio de Janero in Brazil, commonly known as Earths Summit8.

The primary cause of global warming is the green house gas emissions. The generation of excessive amount of green house gases by developed countries is hazardous, which stands in a way of sustainable development.

Over exploitation of natural resources, over use of chemical fertilizers and pesticides in agriculture, deforestation has impacted different changes in the components of environment. Thu, it is desirable to use an environment friendly product which controls pollution therefore ensuring sustainable environment.

The development of many nations due to industrial revolution where population has been increased due to commonly known as urbanization. The population growth in the countries has resulted into polluting the environment. The urbanization leads to air, water and noise pollution to a greater extent.

Thus, the following facts were inferred for the Target7A are discussed below:

Forests are basic necessity for the poor, but forests and natural resources are going down at an alarming rate.

Among the developing nation, Africa and South America saw the largest net losses of forest areas between 2000 and 2010.

Globally, carbon dioxide (CO2) emissions have increased by more than 46 per cent since 1990.

Since the implementation of the Montreal Protocol on Substances (25 years before) that Deplete the Ozone Layer, there has been a reduction in the consumption of ozone-depleting substances over 98%.

8 www.undp.org/content/undp/en/home/mdgoverview/(Last Accessed 20-03-2014)

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At Rio+20, the United Nations Conference on Sustainable Development, world experts and leaders sanctioned an agreement titled “The Future We Want,” and more than $513 billion was contributed towards sustainable development measures9.

TARGET 7B: Reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss.

The 2010 Biodiversity Target was an overall conservation target aiming to halt the decline of biodiversity by the end of 2010. The world largely failed to meet the target.

The 2010 Biodiversity Target was first adopted by EU (European Union) Heads of State at the EU Summit in Gothenburg, Sweden, in June 2001. They decided that "biodiversity decline should be halted with the intention of achieving this objective by 2010"

The sixth conference on Convention on Biological Diversity, parties adopted the Strategic Plan for the Convention in Decision VI/26. The Decision states that Parties commit themselves to a more effective and coherent implementation of the three objectives of the Convention, to achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on earth.

The World Summit on Sustainable Development in Johannesburg in 2002 confirmed the 2010 Biodiversity Target and called for "the achievement by 2010 of a significant reduction in the current rate of loss of biological diversity".10

The following nations have added to the establishment of individual Biodiversity Action Plans are Tanzania, New Zealand, Great Britain and the United States of America, called Species Recovery Plans in the USA in 2006.

9 www.unmillenniumproject.org/goals/gti.htm(Last Accessed 20-03-2014) 10 http://www.countdown2010.net/article/2010-biodiversity-target(Last Accessed 20-03-2014)

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Thus, the following facts were inferred for the Target7B are discussed below:

Not all protected areas cover central biodiversity sites and growth in protected areas differ across countries and territories

Areas of the earth’s surface are protected day by day to greater extent. Since 1990, protected areas have increased in number by 58 per cent.

So, the result of 2010 Biodiversity Target is that, by 2010, protected areas covered 12.7 percent of the world’s land area but only 1.6 per cent of total ocean area.

TARGET 7C: Halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation.

Safe water and sanitation are vital for human survival.

“On the basis of survey, a child dies every 15 seconds from disease caused by poor quality drinking water, deplorable sanitation and poor hygiene.”11

Till 2002, one in six people across the world and 1.1 billion in total had no access to clean and safe water, about 400 million of this population are children.

In sub-Saharan Africa countries (Rwanda, Ethiopia and Uganda) four out of five children had to walk more than 15 minutes to find a safe and pure drinking water source.

There is not insufficient water in these areas but due to lack of government competency and fluctuating policies, the technology to ensure protected water and healthy sanitation, and the money to put water programs into place.

11 www.unicef.org/mdg/(Last Accessed 20-03-2014)

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The Progress of Target 7c set by Millennium Development Goals (MDGs)

The world is on path to achieve its target for drinking water, as access to improved and safe drinking water sources increased from 77 per cent in 1990 to 83 per cent in 2002. Various regions including Northern Africa, Latin America and the Caribbean and Western Asia have achieved target of more than 90 per cent.

But the distressing fact is those without access to safe drinking water source is still number in billions. Nearly two thirds of that population resides in Asia.

On sanitation issue, five regions i.e. South Asia, sub-Saharan Africa, West Asia, Eurasia and Oceania are not on path to meet the aforesaid target. Over half of the population is without improved sanitation; nearly 1.5 billion people are residing in China and India.

Nearly, 2.6 billion people in total are without improved sanitation are difficult to achieve, living in remote rural areas, mired in an endless cycle of poverty and disease, or displaced by war and famine , challenges that will involve dedicated attention and greater work to meet the 2015 goals.

Thus, the following facts were inferred for the Target 7C are discussed below:

Five years ahead of schedule, the world has achieved the desired target of halving the proportion of people without access to improved water source.

The proportion of people using an improved water source raised from 76 per cent in 1990 to 89 per cent in 2010.

Over 40 per cent of population without access to improved drinking water lives in sub-Saharan Africa.

Between 1990 and 2010, more than two billion people attained access to improved and safe drinking water sources.

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But in 2011, 768 million people remained without access to an improved drinking water source.

Over 240,000 people a day attained access to improved sanitation services from 1990 to 2011.

Despite the result of progress, 2.5 billion still lack access to improved sanitation services in developing countries.

TARGET 7D: By 2020, to have achieved a significant improvement in the lives of at least 100 million slum-dwellers.

The target was achieved well in advance of the 2020 deadline .The share of urban slum residents in the developing world declined from 39 per cent in 2000 to 33 per cent in 2012. More than 200 million of these people attain access to safe drinking water, improved sanitation and housing, whereby exceeding the MDG (Millennium Development Goals) target12.

But, 863 million people are estimated to be living in slums in 2012 compared to 650 million in 1990 and 760 million in 2000, as there is significant growth in population presently as compared to the previous years, leading to increase in the population of slum dwellers also. Nevertheless, the target of MDGs is achieved well in advance.

Business Strategies Adopted For Environmental Sustainability

The significance of discussion of business strategies for environmental sustainability is essential as business share direct or indirect relationship with environment sustainability as Environmental sustainability can cut costs and foster a better relationship with customers and thus fostering environment friendly business methods.

The main concern of business experts is how to “go green” while remaining competitive. the change in business doesn’t come from a sense of social obligation in business but it should also increases the competitiveness while decreasing the operational costs, as lot of sustainability methods are popular with customers and should be 12 http://www.developmentgoals.com/environment/(Last Accessed 20-03-2014)

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practiced which encourage resource efficiency. Business can develop in such a way that will enhance environment friendly methods as well as help in reducing the costs by using resources efficiently.

Defining and Evaluating Sustainability

The concept of adopting business strategy for environmental sustainability is difficult to understand. For instance, a business technique that recycles all of its wastes might be considered more sustainable than one that does not, but if it gets considerable amounts of power from fossil fuel energies, it will not be sustainable for the environment. Therefore, sustainability demands for use of resources in a efficient manner so that it does not hamper the needs of future generations. Sustainable methods therefore rely heavily on renewable resources and work in such a manner that the resources remain reliably renewable. Further, a business strategy for sustainability will require a method of accurately accounting for environmental costs.

Building Sustainable Facilities

Many businesses are researching the gains of building new facilities and services in accordance to the principle of “green architecture”. A green building is a specific certification provided through compliance with the rating system of the United States Green Building Council (USGBC). The USGBC standards are considerably approved by some commercial contractors and in the industry, even specialize in green and sustainable building construction.

Adopt Sustainable Sourcing Policies

The significant affect of many businesses on the environment takes place at the facilities and services of their suppliers. The essential requirement is working with the suppliers to fulfill the commitments is vital factor to any sustainable strategy. Other way of implementing the sustainable principle into supply chain includes focusing supplies on recycled materials, reducing transportation by supplying locally, and fostering relationship with suppliers who operate on renewable resources.

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Conclusion

Thus the concluding lines of this paper is that the sustainable environment can be achieved through address environmental concerns locally and globally.

So, the sustainable environment is taking on the complicated issues facing conservation today from climate change to coral reefs, to energy development in an emerging world. We are enforcing high level strategies to our conservation work around the globe in the following fields:

The ensuring sustainable environment works with government officials and partners around the world. For instances, in the United States, they work to support public policies that protect their lands and waters so the next generations of Americans can build secure and safe lives.

The solution to reduce the green house gas emissions requires preserve forests, thus achieving healthy planet and ways that can support nature to reduce global warming. Freshwater ecosystems supply us with food, energy and most importantly drinking water. But expert’s studies predict that in the next 20 years, half of the world’s population could face water shortages. There are practical solutions to this threatening problem, protecting freshwater sources but we must take some bold and stringent steps towards it.

The environmental sustainability is working around the globe like Costa Rica's Osa Peninsula to protect rainforests, employing local and indigenous communities in creative solutions that balance the needs of people with nature thus contribute to ensure sustainable environment.

Scientists study estimate that if we do not take immediate straightaway action, we could lose up to 70 percent of coral reefs by 2050. The sustainability is dedicated to protecting these vital ecosystems and all the corals, fish and people that depend on them, so that sustainable environment can be ensured.

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By building the tradition of saving land and water sources, building relationship with communities, companies, governments, increase funding for projects of sustainable development and also by making public polices leads to integration and better management ,thus these working contribute towards sustainable development .Thus, environmental sustainability can be ensured by allowing companies, governments and communities to make decisions about where development could occur and where it shouldn’t ,thus fostering the sustainable development.

The most important way to ensure sustainable environment is to increase energy conservation and efficiency. So, improving the quality of our life and environment for the present as well as future generations and therefore prospering towards sustainable environment and sustainable development

References.

BOOKS

1. Bhatt S, Environment Protection and Sustainable Development, A P H Publishing Corporation, 2008.Print.

2. Malik, Abdul. Environmental protection strategies for sustainable development. Dordrecht: Springer, 2012. Print.

3. Kahraman, Elias. Environmentalism environmental strategies and environmental sustainability. New York: Nova Science Publishers, 2010. Print.

4. Thiele, Leslie Paul. Sustainability. Cambridge: Polity, 2013. Print.

JOURNALS

1. Quaid, Allison. "The Sustainability Inventory: Tools to assist US municipalities advance towards sustainability." Local Environment: 447-452. Print.

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2. Fuchs, Christian. "The implications of new information and communication technologies for sustainability." Environment, Development and Sustainability: 291-309. Print.

3. Busari, Ola. "Water, sanitation and sustainability: lessons from a community project." Environment, Development and Sustainability: 71-83. Print.

4. Nath, Bhaskar. "A heuristic for setting effective standards to ensure global environmental sustainability." Environment, Development and Sustainability: 471-486. Print.

MAGAZINES.

"Beam Commits to a Sustainable Environment." Food & Beverage Close-Up 25 Apr. 2013: n. pag. Print.

Nath, Bhaskar. "A heuristic for setting effective standards to ensure global environmental sustainability." Environment, Development and Sustainability: 471-486. Print.

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VITRIOLAGE IN INDIA- A SOCIO-LEGAL PERSPECTIVE

Aabid Ali Haider*

Divya Kashyap**

Introduction

“A society that is unable to respect, protect and nurture its women and children loses its moral moorings and runs adrift.”1

Today, through the course of time due to social, political and economic changes, women in the country have lost their status and are relegated to the background. Many evil customs and traditions stepped in which enslaved the women. Women across the country continue to face atrocities such as “Rape”, “Molestation”, “Sexual harassment”, “Acid throwing”, “Dowry killings”, and “Female infanticide” while young girls are forced into prostitution. They are also victims of general crimes like “Murder”, “Robbery”, and “Cheating” etc. Police records in India have shown high incidence of crimes against women. Though such crimes have been excluded from the article, it solely emphasises on acid attacks which is on an alarming growth in the country over the last decade, despite the enactment of the Criminal Law Amendment Act 2013 and the Hon’ble Supreme Court’s directions.

Acid attacks have become observable phenomena in India. It is one of the most horrendous and frightening forms of violence which are especially targeted against women. It is a tool of revenge from the perpetrator’s point of view which is used to silence women in the country. The victim is left mutilated and scarred and suffers from physical, psychological, socio- economic consequences.

Acid Attack-its Roots

Acid attacks formally known as vitriolage can be attributed to various factors such as the social weakness of woman, the existence of

*&*2nd Year Students, Hidayatullah National Law University, Raipur 1 The Hindu- Opinion Sept, 15 2012 ,available at: http://www.countercurrents.org/ranjan300113.html. (Visited on February 2, 2014).

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male dominated society, for spurning the suitors, rejecting proposals of marriage or denying dowry or rebuffing advances! The crime is a result of the following crimes:

The Gender Dimension

Many activists and human rights scholars note that acid violence is correlated with gender inequality. In India it has a specific gender dimension where 80% of victims are women. The 226thLaw Report has further stated that “Most of the reported acid attacks have been committed on women, particularly young women for spurning suitors, for rejecting proposals of marriage, for denying dowry etc. The attacker cannot bear the fact that he has been rejected and seeks to destroy the body of the woman who has dared to stand up to him.”2

Acid a Cheap Weapon

In most developing countries like India acids are easily accessible and that too at a very cheap rate and hence is a preferred weapon! A litre of an acid can be purchased at a very inexpensive price, as less as Rupees 25.3 Usually acids like sulphuric acid and hydrochloric acids have been employed by perpetrators in many cases. Such acids are very easily available in medical and other stores.

Dominance of Male Authority

There is a strong presence of patriarchy in Indian society. The 226th Law Report has remarked that “acid attacks are used as a weapon to silence and control women by destroying what is constructed as the primary constituent of her identity”.4 Afroza Anwary a renowned academician at Minnesota State University argues that the overemphasis on the physical appearance of the fairer sex in such patriarchal societies is responsible for the increased incidence of acid attacks. Also in many circumstances where women are burdened with

2Law Commission of India, 226th Report on Proposal for the Inclusion of Acid Attacks as Specific Offences in the Indian Penal Code and a Law for Compensation for Victims of Crime, (July 7, 2009). 3"Acid Attack Victims yet to get Assistance", The Hindu (Karnataka), April 27, 2007. 4Supra note 4.

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the responsibility of earning and are the chief source of income of the family are often victimised by their husbands when they fail to live up to their expectations as homemakers in their conventional gender roles. Anwary states that “Deteriorating economic conditions, high unemployment rates among male bread-winners, the increasing number of landless households, and the lack of agricultural work for male labourers.”5

The Impact of Acid Attack

Acid being a corrosive substance can easily corrode a metal and thus human skin or flesh is no exception! Perpetrators usually throw acids on victim’s faces with the intention to disfigure, maim, torture or kill. The acid burns the victim; damages skin tissue and sometimes even dissolve bones. Consequently the victim faces physical challenges. Moreover victims are crippled with psychological, social and economic consequences. The trauma of the attack leads to the development of fear, depression and psychosis of the victim. Acid attacks leave the victim handicapped which ultimately render them to rely on others for their everyday activities. The 226th Law Report further adds that “those victims who are not married are not likely to get married and those victims who have got serious disabilities like blindness will not find a job and earn a living.”

The Law Report6 has listed many cases, showing dowry property disputes, rebuffing of advances, suspiciousness of illicit affairs being the obvious reasons for the occurrence of such attacks in the country. The facts, judgements and the compensation granted in such cases are overwhelmingly abominable! For instance In Balu v. State Represented Inspector of Police7 a person suspecting his wife to have an illicit relationship, threw acid on her resulting in her death. The accused was convicted under section 302 and 313 of IPC with life imprisonment. However he was fined for a meagre amount of Rupees 2000. In another 5Afroza Anwary, "Acid Violence and Medical Care in Bangladesh: Women’s Activism as Carework", 17 Gender and Society 307 (2003). 6Id. 7C.A. No.1078 of 2004.(Decided on 26/10/2006).

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case before Hon’ble Supreme Court8 the accused was convicted under section 302, 304 of IPC for having killed his wife and injuring his daughters by throwing acid. Though he was sentenced to life imprisonment no compensation whatsoever was awarded to the victims.

Victim Compensation

The principles of Justice, Equity and Good Conscience which is enshrined in our legal system can be questioned when confronted with the issue of victim compensation. Victims of any crime and of human rights violations (regardless of their legal status) have a right to be compensated for the losses sustained due to the crime committed on her or him and is awarded for both material and non-material damages. Compensation has to be ordered by the court and is part of a guilty verdict. The victims of acid attack incur huge medical expenses to salvage their physical appearance. In many cases the judiciary have failed to levy adequate amount of fine. There are also cases where no compensation has been awarded. In Awadhesh Ray v. State of Jharkhand9, no compensation whatsoever was awarded to the victim. In this case the court seems to have been guided by the nature of injuries which in its opinion did not amount to grievous hurt. The accused however was held guilty and was convicted under Section 324 of IPC and was sentenced to undergo rigorous life imprisonment for three years. In another case from Delhi10, the accused had thrown acid on victim’s face causing erythema on her skin. The accused was convicted for causing hurt under Section 323 of the IPC but a meagre fine of Rupees 300 and a mere 15 days imprisonment were awarded. “... This sort of punishment for acid attack is in itself a mockery of sorts and does not take into consideration the gravity of the crime and its after effects like trauma which affects the victim throughout her life.”11

8Ram Charittar and Anr. etc. v. State of Uttar Pradesh etc., AIR 2007 SC 2988. 9Cr. Appeal No: 38/2001 Jharkhand High Court. (Decided on 12/6/2006). 10State (Delhi Administration) v. Mewa Singh, 5(1969) DLT 506. 11Supra note 4.

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Dreams Burnt into Flames – A Shocking Experience

These incidents though shocking do not ultimately state the misery of the victims unless we actually read or get familiar with the problems that the victims are facing and the response which they have received from the society, family and friends after the attack! Below are some of the survivors who have shared their tragic experience.

LAXMI

Laxmi who had filed a writ petition at Supreme Court to include acid attacks as specific offences in the IPC shares her own heart-breaking story. Laxmi once young and beautiful was just 13 years old when she was attacked. Like all of us she had dreams, goals to inspire but all which are vanished in the flames of acid!

“I would spend hours singing. I'd recorded my songs and sent them to talent hunt competitions. I was waiting for a call from 'Indian Idol”12 remarks Laxmi. Laxmi was attacked when she had refused proposal from the accused. Within few seconds of the attack she lost her face, her ear melted away and both her arms were charred black. She kept screaming for help but no one stepped forth. Fortunately a politician’s driver took her to the hospital. She was hospitalised for 10 weeks. However today after the attack what hurts Laxmi more is the society’s ‘reaction! Her own relatives and friends have abandoned her. “Nobody even wants to be my friend; how can I even hope that I'll have a lover or a husband?”13, says Laxmi. She is also disheartened that due to her scarred face, she is having difficulty in finding a job! This is what people say wherever she went to apply for job-“People will get scared if they see you”14. She got rejected when she applied for Bank BPO’s and beauty parlours! Even after the attack when the survivors after fighting all odds want to work but get rejected not because of their incapabilities but because of their scarred appearances which would scare the people!

12Harinder Baweja, "Don’t stare at me I am human too, Hindustan Times, July 20, 2013. 13Id. 14Id.

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SONALI MUKHERJEE

Sonali Mukherjee’s plight is equally frightful. Commenting on her trauma after the attack, she says “The only way you can imagine my agony is to experience it for yourself”15. In 2003 she was permanently disfigured when three men threw acid in her home. The acid had burnt her eyes, nose, ears, cheeks, and parts of her scalp, neck, shoulders, breasts and back. She was 17 and was pursuing as a NCC cadet. She has already undergone 20 surgeries which were made possible only from generous donations from non-governmental organizations, individuals, corporate firms and media houses, apart from the prize money of Rs.25 lakhs—about Rs.16 lakhs after income-tax deduction, which she won at the popular quiz show Kaun Banega Crorepati16. She not only suffered the trauma of the attack but also underwent other misfortunes which one cannot even bear to hear! Her father Chandi Das Mukherjee had lost his job as a guard at a local “dal” mill and had to sell his ancestral house. Sonali’s younger siblings were dropped out of school. Her mother suffered prolonged depression and refused to see Sonali for many years after the incident.17

PRAGYA

Pragya a post graduate in Fashion Management was attacked on 30th April 2006, 12 days after her wedding. She was on treatment for 2 years and also underwent 9 surgeries to live and look again as a normal human being. She says, “My old life has vanished in the flames of acid now I fight every day to recover from it and become a normal woman. I fight to look normal without eyebrows, no hairline...how can I look?18” She shares that people always look back at her. Children especially ask what happened, some also hide in fear. “Once a 4 year old girl in my

15Pallavi Singh, "True Stories Reconstructing Sonali Mukherjee", August 3, 2013, available at http://www.livemint.com/Leisure/X1vWl8wQVglJ0WKkusMauI/True-Stories--Reconstructing-Sonali.html. (Visited on February 6, 2014). 16Id. 17Id. 18"I was Attacked with Acid. This is my Story: Pragya", June 7, 2013, available at http://www.stopacidattacks.org/2013/06/i-was-acid-attacked-this-is-my-story.html. (Visited on February 8, 2014).

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neighbourhood said she hates me. She doesn't like my face, my eyes, my lips, my hand...she said I am yuck!”19, remarked helpless Pragya. Hence we do infer the following from the response and the consequences that these victims are facing.

Victim’s Life Vanished into Flames

It is clear from the horrendous trauma of these survivors that the victims not only undergo the horrendous trauma of the attack and face complications but also fight a hostile society who turns them down. The attack has destroyed their life. They have learned to live with physical pain but the society’s unamiable reaction towards them is what hurts them the most. They find it very difficult to find a earning; no one wants to hire them because of the way they look! Moreover the society stares at them and neglect them.

Psyche of the Offender

The attack on such victims also throws the light on the psychology of the offender, like what the person had thought of when he decided to throw the acid on the victim? Didn’t he ever think of the pain that the victim and her family have to bear? Didn’t he have mercy in his heart? The offender also didn’t think of his family when he attacked the victim. The attack also gives us the fact that most of these cases that have occurred in the country resulted out of rejection of proposals, rebuff of advances jealousy humiliation. In this regard the Law Commission vehemently criticise “The attacker cannot bear the fact that he has been rejected and seeks to destroy the body of the woman who has dared to stand up to him.”20

Law in India

The Criminal Law Amendment Act, 2013

Earlier India didn’t have a separate law governing the crime of acid attacks. The accused was booked under the legal provisions of

19Id. 20Supra note 4.

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Indian Penal Code (IPC) 1860, namely Section 320 Section 322, Section 325 and Section 326. The victims and those working for the survivors contented that law relaying to grievous hurts in these given sections was deficient to deal with this appalling crime. The Law Commission also commented that, “the definition does not take within its purview the various kinds of deliberate hurt that is inflicted on important parts of a female’s body nor does this definition apply to offences like acid attack in which multiple types of grievous hurts occur.”21Moreover the horrific gang rape and murder of Nirbhaya in December 2012 impelled the government to pass the Criminal Law Amendment Act 2013, which provides for stringent punishment for rape, punishment for stalking, voyeurism. It included acid attacks as a separate crime after taking in the recommendations of Law Commission.

The law for the first time has recognised acid throwing as a separate crime in the IPC and also has provisions for punishment. The Act has amended the Indian Penal Code, the Code of Criminal Procedure and The Indian Evidence Act. The Act has inserted the following sections in Indian Penal Code which reads as under:

“326 A. (i) Hurt by acid attack- “Whoever burns or maims or disfigures or disables any part or parts of the body of a person or causes grievous hurt by throwing acid on or administering acid to that person, with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punishable with imprisonment of either description which shall not be less than 10 years but which may extend to life and with fine which may extend to Rupee 10 Lakhs.” Provided that any fine levied under this section shall be given to the person on whom acid has been thrown or administered.

ii) Intentionally throwing or administering acid- Whoever throws acid on, or administers acid to, any person with the intention of causing burns or maiming or disfiguring or disabling or causing grievous hurt to that person shall be liable to imprisonment of either description for a term not less than 5 years but which may extend to 10 years and with 21Id.

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fine which may extend to Rupees 5 Lakhs.”The Act has further amended the Indian Evidence Act as under:

“Section 114 B: Presumption as to acid attack- “If a person has thrown acid on, or administered acid to, another person the court shall presume that such an act has been done with the intention of causing, or with the knowledge that such an act is likely to cause such hurt or injury as is mentioned in Section 326 A of the Indian Penal Code.”

The amendment to the criminal law is indeed a positive step to check the acid attacks in the country. Part (i) of Section 326(A) deals with situations where actual damage has been done by the offender who intended to disfigure or burn the victim’s body by throwing acid. Part (ii) of Section applies to cases where physical damage has not been done despite the offender’s intention. Moreover the Act identifies that the offences under these sections have been made cognizable and non- bailable. The addition of the section 114 (B) to Indian Evidence Act is again a good initiative as it removes the onus of proving the mens rea by the prosecution.

Decisions of the Supreme Court

The Supreme Court after hearing the petition filed by acid attack victim Laxmi, last year, had issued guidelines mentioning that acid attack victims should be given Rupees 3 lakhs as compensation- Rupees 1 lakhs to be given within 15 days of incident and remaining balance within two months’ time. In addition no seller will be allowed to stock or sell acid without license. Buyers will be sold the chemical only after they show their government issued photo identity proof, and purpose of purchase. The seller will be obliged to record the sale details and submit them with the local police within three days along with disclosing all stocks to the local sub-divisional magistrate within 15 days. Failing to do so could lead to a fine of Rupees. 50,000. No acid will be sold to anyone below 18 years of age. Also, only non-harmful form of acid will be available over the counter. In laboratories, hospitals and other institutions where acids are used, a person will be placed in-

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charge of storing acid, and of compulsory checking of students and personnel leaving the institution.22

Acid Attack Survivor’s Response towards the New Law

Many survivors and activists are not happy and thus want to widen the Act's23 scope. The Act has only increased the punishment for the perpetrators and recognised it as a separate criminal offence. It does not have any provision to aid victims who have to live with physiological, psychological, social and economic complications, nor does it provide for adequate subvention to the families of the deceased when the latter was the only working person in the family. The Act should have had a provision to regulate the sale, import or export of acids and stockpiles unlike the Acid Controls Act 2002 of Bangladesh. The Government has also failed to take into consideration of reconstructive surgery and the heavy cost incurred in such treatment. Alok Dixit founder of Stop Acid Attacks (SAA) campaign asserts “The new law makes no mention of concrete solutions such as insurance plan or long-term and proper medical care for the victims. It has only made acid attack a criminal offence. A few lakhs of money given by state governments and first aid will not be enough for the survivors of such attacks.” He further added that, “They need a proper rehabilitation policy, such as specialised medical care for burns and elaborate plastic surgery. The government needs to bring in a separate law.”24 Supreme Court lawyer Meenakshi Lekhi also remarked that "For long, the victims and activists have been demanding a stringent law. Though the new law specifies 10 years imprisonment and fine up to Rupees 10 lakhs, it does not specify anything about rehabilitation of the victims. Nothing concrete seems to have come out of this act."25

22 R. Nithya, "Acid Attacks on Women: New Rules to Regulate Acid Sales", July 25, 2013, available at http://newsclick.in/india/acid-attacks-women-new-rules-regulate-acid-sales. (Last visited on February 10, 2014). 23 The Criminal Law Amendment Act, 2013. 24"Acid attacks: New law hikes punishment, but doesn't help victims", Hindustan Times, April 7 2013. 25Id.

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Inadequate & Tardy Compensation

Responding to the Supreme Court’s orders of granting compensation of rupees 3 lakhs the survivors say that the compensation is inadequate in cases when the cost of treatment becomes exorbitant. Victims of acid attacks said it was the mockery of the amount spent on reconstructive surgeries. “Putting salt on wounds” is how Archana Kumari, an acid attack victim in Faridabad described the amount of monetary compensation. She has spent more than Rs 15 lakhs on 25 surgeries where each surgery cost around 2 lakhs rupees.26. Also many doubt that whether the orders of the Supreme Court will be implemented in its strict sense and doubt whether the government agency could monitor the counter sale of acids across the country.27 The young woman from Barnala who succumbed to her injuries didn’t get compensation from the state while she was undergoing her treatment even after fortnight, despite the Apex Court’s guidelines.28This not only shows a clear violation of the Supreme Court’s guidelines but also highlights the impassivity and poor working of the state’s administration. The family of the deceased finally got compensation of rupees 10 Lakhs at her funeral service.29

Conclusion and Suggestions

Today we have a separate law dealing with the crime of acid attacks. However more needs to be done. Precautions have to be taken. Every state should abide by the rules of the Hon’ble Supreme Court to formulate rules regarding the sale and stock of acids. There should be comprehensive steps to stop the misuse of acids. Victims bear huge costs for their treatment, hence the government should bear the cost of their treatment. Moreover the government should come up with insurance plans, government jobs and rehabilitation to further aid the

26"‘Just salt on our wounds’: Acid attack victims remain unhappy with SC rulings", July 20, 2013, available at http://www.firstpost.com/india/just-salt-on-our-wounds-acid-attack-victims-remain-unhappy-with-sc-rulings-972089.html?utm_source=ref_article. (Visited on February 12, 2014). 27Id. 28"Acid attack victim awaits compensation", The Times Of India, December 24, 2013. 29"Kin of acid attack victim get Rs 10L in compensation", The Times of India, January 6 2014.

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acid attack survivors besides punishing the perpetrators! There should be reservation facilities for the victims in government jobs. The Apex Court has been stressing for rehabilitation for acid attack survivors and has led by an example by offering Anu Mukherjee an acid attack survivor a job as a Junior Court Attendant. Also the Jharkhand Government offered a grade- III job to Sonali Mukherjee from Dhanbad whose face was permanently disfigured by an acid attack in 2003 when she had rebuffed men’s advances.30

The government should also provide aid to the families where the deceased was the sole source of family income. The Criminal Law Amendment Act should also incorporate the provision where if death is caused by acid attack the offender would be punished by death or rigorous life imprisonment.

Lastly it is the society that can make a great difference in helping the victims. We must remember that it wasn’t their fault when they were attacked! They are very much part of our society. By staring at them or refusing them the jobs just because they look abnormal or ugly will not only hurt them but also will break their confidence and their desire to live again! For this purpose the society especially the youth must be educated. Schools must incorporate in their curriculum a compulsory subject on the socio-economic problems that the victims face of any heinous crimes prevalent in the country. This subject should be made compulsory from VIII standard onwards.

We must not only provide them with financial aid but also support their campaign against acid attacks so that such crimes don’t occur in future. The society should come forward and provide help to the victims in any way possible so that these survivors may rise again like a phoenix from their ashes and live a normal life.

30Supra note 17.

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INTERNATIONAL CIVIL AVIATION ORGANIZATION’S ROLE IN DISASTER PLANNING, PREPAREDNESS & RESPONSE: A

FUNDAMENTAL UNDERSTANDING OF THE INTERNATIONAL SCENARIO

Rahul Ranjan*

Dhruv Patel**

Introduction

The International Civil Aviation Organization (ICAO) is a specialized agency of the United Nations (UN) devoted to the safety efficiency and regularity of international aeronautical transportation. The governing protocols of ICAO are the Articles of the Convention on International Civil Aviation signed at Chicago on December 7, 1944 (the Chicago Convention).1

ICAO is charged with the administration of the principles laid out in the Convention. In ICAO Headquarters, Montreal, Search and Rescue (SAR) is the responsibility of the Air Traffic Management Section of the Air Navigation Bureau and, specifically, 30% of one person’s time.2

The reason for ICAO coming into being is to be found in the events of the 1940s. The Second World War was a powerful catalyst for the technical development of the airplane. At the end of the war, a vast network of passenger and freight operations had been set up but it lacked high level, organizational structure, especially in its International dimension. Just as the airplane had been a devastatingly

*2nd Year Student, BBA.,LL.B., Institute of Law, Nirma University, Ahmedabad & **3rd Year

Student, BBA.,LL.B.,Institute of Law, Nirma University, Ahmedabad 1 Brian Day, ‘ICAO’s Role in Disaster Preparedness, Planning and Response’ available at

http://www.aai.aero/seminar_presentation/ICAO_disaster.jsp (last visited on August 4, 2014). 2 Available at www.icao.int/publications/pages/doc7300.aspx (last visited on August 4, 2014)

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effective instrument of war, it was realized that it could be outstandingly effective in supporting and benefitting a world at peace.3

The Chicago Convention has 96 Articles. The Fundamental principle underwriting the Convention is that “every state has complete and exclusive sovereignty over the airspace above its territory”. The Convention also provides that no scheduled international air service may operate over or into the territory of a Contracting State without its previous consent.4

The Fundamental Standards and the Cooperative Provision

A Brief

SAR features as a legal obligation in Article 25 of the Chicago Convention which states that “ each contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable … each, contracting State, when undertaking search for missing aircraft, will collaborate in coordinated measures which may be recommended from time to time..”.5

These coordinated measures are expressed as Standards and Recommended Practices (SARPs) in Annex 12 to the Convention.6 They cover matters of establishment, maintenance and operation of SAR services both in territories of Contracting States and over the high seas.7

The first Standard articulated in the Annex requires that “Contracting States shall arrange for the establishment and provision of search and rescue services within their territories. Such services shall be provided on a 24- hour basis.”8

3 Ibid 4 Supra note 1 5 International Civil Aviation Organization (ICAO), Convention on Civil Aviation (“Chicago

Convention”), 7 December 1944, 15 U.N.T.S. 295, available at http://www.unhcr.org-/refworld/docid/3ddca0dd4.html (last visited on August 5, 2014)

6 Ibid 7 Ibid 8 Infra note 10 at 69

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The Annex goes on with SARPs that provide for delineated areas of responsibility, Rescue Coordination Centers (RCCs), communications facilities, rescue units and rescue equipment. These make up some of the fundamentals of an organization. Third chapter in the Annex, is headed “Co-operation”. The fact that an entire chapter in this Annex is dedicated to cooperation is indicative of its importance. The researcher would like to focus on some aspects of this vital concept of cooperation, particularly cooperation between States within a region and cooperation between administrators (by which is meant planners, regulators and managers) and RCC operations personnel.9

Unlike other aviation services, which are examples of physical sciences designed to meet both and a commercial end, SAR requires the exercise of some highly refined social sciences and has as its end the preservation of endangered human life. The specialness of SAR, then, lies in its humanitarian ethic, as distinct from other services commercial imperative.10

Annex 12 is extensively expanded upon in the International Aeronautical and Maritime Search and Rescue (IAMSAR) Manual, a joint publication of ICAO and the International Maritime Organization (IMO).11

At its outset, the IAMSAR Manual acknowledges the impracticality of State SAR administrations taking sole responsibility for the provision of all the resources necessary to conduct SAR operations. For some states, not a few, it is impossible for them to do so; it is simply beyond their financial capacity to provide every necessary resource. This is the primary reason for the development of co-operative policies between agencies within States and between States themselves: to make provision for the shared use of assets. There are many other benefits that are to be derived from cooperation at

9 Ibid 10 Michael Milde, International Air Law and ICAO 70 (Eleven International Publishing, 2008) 11 Ibid

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various levels and the IAMSAR manual expounds on these. It encourages cooperation between government and industry, civilian and military, aeronautical and maritime, air traffic control and SAR.12

Cooperation, in short, is the key to each State meeting its obligations under the Chicago Convention. In isolation, few States could meet their obligations; in cooperation, almost every State can satisfy its own SAR needs effectively and affordably and, at same time, assist other neighboring States to meet theirs.13

The Global Concept and Concept Of Services

From an organizational viewpoint, the contemporary application of this principle of cooperation is spelt out in the IAMSAR manual under the heading “The Global Concept”. The Manual defines the ICAO’s goal as being “to provide a world-wide SAR system that will provide assistance to all persons in distress regardless of nationality or circumstance.”14 It goes on to observe that the fastest, most effective and practical way to achieve this goal is to develop regional systems associated with each ocean area and continent.15

Aviation organizations have a particular characteristics that set them apart from organizations in general. They are part of a sub-set referred to as high technology and reliability organizations that provide goods and services deemed to be critical to society. Nuclear energy and defense are cases in point. Defense is high risk because of the venturous nature of military activities and because a mistake may lead to unacceptable consequences.16

International aviation still enjoys low levels of risk but the accidents that do occur emphasize how the industry is associated with extremely high stakes.17 Aeronautical SAR, risk wise, is set somewhere

12 Ibid at 71 13 Ibid 14 Supra note 1 15 International Maritime Organization, Iamsar Manual: International Aeronautical And Maritime

Search and Rescue Manual 2001 (O.M.I, 2002) 16 Supra note 10 at 72 17 Ruwantissa Indranath Ramya Abeyratne, Aviation in Crisis 117 (Ashgate Publishing Ltd., 2004)

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between defense activity and regular aviation operations but is firmly placed in the context of extremely high stakes. Within all these types of organizations, it is reliability rather than productivity that is the overriding goal. The focus in these organizations- the focus in the provision of SAR – must be on extremely reliable operations.18

There is a tension in the contemporary circumstances. At the same time as the nature of the SAR task is demanding organizational stability and reliability, society is a subject to unprecedented and continuous change. There is change technically, change socially, change economically and change politically. There is only, ever, it seems, change. There have been dramatic improvements to the technical aspects of both aircraft and air traffic management systems over the past few decades. At the same time, satellite technology has gone a long way to minimizing the search element of search and rescue. The technology being brought to bear is at once smart and complex. But while it has the potential for wide application and greatly improving system effectiveness, it introduces a new realm for error in which cause and effect are much more difficult to find out.19

In that regard, while there have been constant improvements in technology and management practices, it is significant that human errors are remaining constant over time, as a result, accidents continue to happen and the requirement for an effective SAR service will continue into the foreseeable future. Within the SAR system itself, risk of operational error remains real, not least because of the sweeping changes in the environment in which SAR is provided and the impact of these changes on the SAR work force.20

Some SAR organizations have responded decisively to contemporary pressures. With changes in the demands on the service, some providers have reorganized to react more flexibly. They have, for

18 Ibid 19 Ibid at 118 20 ICAO/IMO Joint Working Group on Harmonization of Aeronautical and Maritime Search and

Rescue available at http://legacy.icao.int/icao-imo-jwg/meetings/jwg-14/-do-cs/JWG_SAR14wp01.pdf (last visited on August 7, 2014)

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example, commissioned joint maritime and aeronautical RCCs and established work forces of multi-skilled operators.21 But as RCCs have responded to external forces, internal pressures have grown in turn and introduced scope for errors of a different magnitude and type. This new circumstance has been brought about by changes to job functions, responsibilities, and skill and knowledge requirements within the RCC.22

An increased reliance on IT has resulted, along with several benefits, in new challenges within the RCC. The ever-greater capabilities of IT have been accompanied by increased complexities.23

Skill demands have grown and the cycle of change betting change has been reinforced. Indeed, in the RCC, as in every modern workplace, new technology and the demands of industry and society have led to the very re-conceptualization of work. As new work practices have evolved, those practices have spawned a covering policy and that policy has given rise to expectations of ever-higher levels of service.24

This has happened almost incidentally. All this has occurred in an environment of organizational transition. Traditional organizational boundaries have become blurred, fused and uncertain.25 As a result, there is a threat of SAR services being driven more by change and technology than by carefully considered Standards developed in anticipation of the industry’s needs. Standards should be proactive, not reactive. It is now time for planners and managers to catch this tiger by the tail and reassert their authority.26

On the one hand, the pressures of user requirements, technological innovation and social change are demanding that the SAR

21 Ibid 22 Federal Aviation Administration, Federal Aviation Regulations/ Aeronautical Information manual

2009 (Skyhorse Publishing Inc., 2008) 23 Ibid 24 Supra note 20 25 Ibid 26 Supra note 22

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system becomes more adaptable, innovative and sophisticated. On the other hand, the establishment of standards ever further beyond the reach of some States is to guarantee weak sections in the fabric of the global system. There is, then, a risk that the intervention of chance will exploit system weakness and culminate in catastrophe. A regional organizational strategy can, however, strengthen the weak links and lead to a more effective worldwide service coverage.27

The Personal Dimension: Focusing on The Big Picture

There is another perspective that cannot be neglected. It takes us to the junction of organizational change and workplace performance. It has to do with the impact of change on personal wellbeing. The steep learning curves, the constant re-structuring and the high stakes of SAR activity are making RCC environments characteristically volatile. The on-going volatility impacts on staff create stress, disillusionment, fear of jobless and a general lack of uncertainty.28

After years, there is a growing realization that what is needed in high reliability systems is not just technical investment but socio-technical investment. This requires, at the start, an acknowledgement that at the core of operations, still and for the foreseeable future, are the humans.29

To advance this approach, we must come to a fundamental understanding of the nature of human needs, of personality and motivation. Researchers agree that it is highly likely that motivation, to some extent, is a product of and individual’s personality. Personality, further, will change, with the environment within which persons function. Managers can strongly influence that environment.30

Workers, especially high achievers, seek after power, not so much power over others but opportunity to give expression to their own potential, over tasks and over challenges. It’s for managers to so

27 Supra note 17 at 120 28 Supra note 1 29 Ibid 30 Supra note 10 at 78

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empower them. There is, then, a substantial role for managers to play in facilitating frontline operator’s high performance. By doing this, managers can both satisfy workers aspirations and proactively guard against human error.31

It might be then that in hearing of human errors, managers detach a little and think of the source of errors as the aircraft cockpit, the ship bridge or, in the case of SAR mission coordination, the RCC alone. That would be a serious mistake. Some findings of accident investigations have highlighted the ineptitude of managers and planners more than the front line personnel and exposed their procedures, arrangements and system construction as primary accident causal factors.32

In summarizing the events leading to the capsize of the Herald of Free Enterprise, and after acknowledging the active errors of the ferry crew, Mr. Justice Sheen said, “… the underlying faults lay higher up in the company …from top to bottom, the body corporate was infected with the disease of sloppiness …”33

The principle is clear. Error attributable to human factors should be of as much concern to managers as it is to front line operators. Both managers and staff, officers and men, have direct responsibility for safe practice. Underpinning all safe practice must be a sound organization, sufficient training, proper procedures and a lively, health work ethic.

In this connection, ICAO has recently produced a document entitled Human Factors Guidelines for Air Traffic Management Systems, 34 some of the content of which would be helpful to SAR managers. It gives guidance on how a proactive approach to safety can

31 Ibid 32 M.A Butler and Verschoor-Diederiks, An Introduction to Air Law (Kluwer Law International,

2006) 33 Sheen, 1 Maurino, Reason, (Johnston & Lee, 1995) 34 Gorton Slade, Air Traffic Control Modernization 29, (Diane Publishing, 1998)

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assist in accident prevention. This, of course, is the mainstay of preventive SAR.

Conclusion

In an aviation environment in which so much is changing: technology, organization and traffic density, and yet much of consequence remains the same, the human factor being the most important, the challenge to States is to apply the proven elements of the Chicago Convention in a way most relevant to contemporary needs.35

This, in short, means to uphold the Standards of Annex 12 in a spirit of cooperation, with a vision that extends beyond insular practices and geographic boundaries and as a willing participant in the global SAR plan.36 With the challenges faced by State authorities are increasing in number and complexity, the provisions of the Chicago Convention stand on a foundation of long and satisfactory service provision.

The researcher is of the opinion that these would continue to stand out the test and give lead in the delivery of the special service of Search and Rescue well into the 21st century. Being partially correct in the hypothesis, the researcher would like to conclude that the best strategy for optimizing work place performance in the SAR domain and, at the same time, minimizing the incidence of operational errors, is to design systems that are human-centered, make plans that are responsive to human capabilities and limitations, and give encouragement for the full expression of workers potential.

35 Supra note 10 at 80 36 Supra note 34 at 30

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APPOINTMENT OF AUDITORS (PRINCIPLES AND PROCEDURES)

BASED IN ACCORDANCE WITH COMPANIES ACT, 2013 AND THE NEW

COMPANIES (AUDIT AND AUDITORS) RULE, 2014

SOURAV MISHRA*1

Introduction

The Companies Act, 2013 in its tenth chapter has provided the specifications regarding audit and appointment of auditors. Section 139 describes about the appointment of auditors, Section 141 describes about the factors which might disqualify a person from being appointed as an auditor. In this paper, a thorough analysis of both these sections is presented, resulting in the formation of clear-cut guidelines of the procedure of appointment.

This paper has also discussed about the Audit Committee that comes into existence under Section 177 of the act. The rules framed thereunder came into effect on 1st April, 2014 through the Companies (Audit and Auditors) Rules, 2014. This is the first research paper in the whole country which has discussed the guidelines regarding formation and functioning of Audit committee vis-à-vis Section 177 of the Act.

The paper has been divided into 7 chapters. It starts with the necessity and requirement of a company to appoint an auditor. The second chapter starts with the eligibility to become an auditor and the factors which might disqualify the person from being so. The third chapter speaks about the procedures: appointment procedure of First Auditor and subsequent auditors of the Government as well as other companies. It is the third chapter only, which has contained the new rules laid down for appointment by the audit committee. The fourth and fifth chapters speak of the duration of an appointment and the possibilities of a reappointment. The sixth chapter speaks about the procedure for rotation of auditors, reference of which, again has been adapted from Companies (Audit and Auditors) Rules, 2014. The last

*Student of 3rd Year, National Law University, Odisha, Cuttack

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chapter speaks about procedures for appointment of auditors at the time of vacancy.

While reading this paper, the reader might observe that all the procedures are mentioned numerically in point-wise manner. This type of creativity is made only for clarity, faster and easier understanding and is not an imitation of the statute. The reader will feel a visible difference of faster understanding by reading the procedures here (which are consistent with statute) and reading a statute, because this paper is made only for easier explanation of what the statute wants to convey!

CHAPTER 1: WHY DOES A COMPANY APPOINT AN AUDITOR?

There are many reasons for which a company appoints an auditor. One of the key purposes for such appointment is to check the truth and fairness of financial statements of the company. In every company, there is a separation between ownership and management. As a part of ownership, a large amount of money of the investors and shareholders is involved. These persons appoint a director, who leads the branch of management of a company. This director, has specified a select group of persons who prepare the financial statements and are not a part of the ownership team. Placing an auditor by the ownership group ensures the security of the company’s money and prevents its mis-utilisation.

An audit is intended to provide a 'reasonable' assurance over the accuracy of financial statements of a company. “The main purpose of an independent audit is to determine if the financial statements fairly represent the actual financial position and the working results of a business enterprise.”2

The ICAI, in its “Statement on objective and scope of the audit of Financial Statements” enumerates the following as the objectives of auditing the financial statements:-

2 Ravinder Kumar, Vijender Sharma, Auditing Principles and Practice, Page. 104 (1st ed. 2005).

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1. The objective of an audit of financial statements, prepared within a framework of recognised accounting policies and practices and relevant statutory requirements, if any, is to enable an auditor to express an opinion on such financial statements.

2. The auditor’s opinion helps in determination of the true and fair view of the financial position and operating results of an enterprise. The user, however, should not assume that the auditor’s opinion is an assurance as to the future viability of the enterprise or the efficiency or effectiveness with which management has conducted the affairs of the enterprise.3

WHO CAN BE APPOINTED AS AN AUDITOR?

According to sub-section (1) of Section 1394, the Companies Act states that only two categories of persons have the possibilities of being appointed as auditors, namely:-

(a) An individual;

(b) A firm.

Any or every individual or firm cannot be straightaway appointed as an auditor. He/It has to possess some specific qualifications, and has to be free from all the disqualifications mentioned under Section 1415 in order to become an auditor of a company. If he/it fails to be free from all the disqualifications, he/it has to vacate the office of the auditor with immediate effect.6

In order to be appointed as an auditor, an individual must be a charted accountant.7 A charted accountant is a person “defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants

3 A.K. Majumdar, G.K. Kapoor, Company Law and Practice Para 19.11 (17th Ed. 2011). 4 Companies Act, 2013, Section 139(1). 5 Companies Act, 2013, Section 141(3). 6 Companies Act, 2013, Section 141(4). 7 Companies Act, 2013, Section 141(1).

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Act, 1949 who holds a valid certificate of practice under sub-section (1) of section 6 of that Act”8.

A firm can be appointed as an auditor in its own name, if majority of its partners practising in India fulfil the requirement of being charted accountants as defined under Section 2(17) of the Companies Act.9

When a Limited Liability Partnership is being appointed as an auditor of a company, “only the partners who are chartered accountants shall be authorised to act and sign on behalf of the firm”10and the firm cannot be appointed or sign by its own name. This is different from the case of auditing by a company, wherein, if majority of the partners are charted accountants, the company could use its own seal.

Under the old Companies Act11, any person who held the certificate granted to him under the Registered Auditors’ Certificate Rules, 1956 was also eligible to be appointed as an auditor. But this provision has been deleted from the 2013 Act.

CHAPTER 2: CLEARANCE FROM DISQUALIFICATIONS

As just mentioned above, an individual or a firm also must exclude itself from the disqualifications of being appointed as an auditor. From Section 141(3)12, the following are the factors which would disqualify a person/firm from being an auditor of a company:-

1. If it is a body corporate other than a limited liability partnership13;

2. If the person so appointed, is an officer or employee of the company14;

3. If the person s appointed, is a partner, or who is in the employment, of an officer or employee of the company15;

8 Companies Act, 2013, Section 2(17). 9 Companies Act, 2013, Section 141(1) (Proviso). 10 Companies Act, 2013, Section 141(2). 11 Companies Act, 1956, Section 226(2)(a). 12 Supra note 4. 13 Companies Act, 2013, Section 141(3)(a). 14 Companies Act, 2013, Section 141(3)(b).

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4. If the person so appointed who, or his relative or partner holds any security, not exceeding one thousand rupees or otherwise, as may be prescribed,16 of or interest in the company or its subsidiary, or of its holding or associate company or a subsidiary of such holding company17;

5. If the person so appointed, or his relative is indebted to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, in excess of such amount as may be prescribed18;

6. If the person so appointed, or his relative has given a guarantee or provided any security in connection with the indebtedness of any third person to the company, or its subsidiary, or its holding or associate company or a subsidiary of such holding company, for such amount as may be prescribed19;

7. If a person or a firm who, whether directly or indirectly, has business relationship with the company, or its subsidiary, or its holding or associate company or subsidiary of such holding company or associate company of such nature as may be prescribed20;

8. If a person whose relative is a director or is in the employment of the company as a director or key managerial personnel21;

9. If he is person who is in full time employment elsewhere22;

10. If such persons or partner, at the date of such appointment or reappointment holds appointment as auditor of more than twenty companies23;

15 Companies Act, 2013, Section 141(3)(c). 16 Companies Act, 2013, Section 141(3)(d)(i)(Proviso). 17 Companies Act, 2013, Section 141(3)(d)(i). 18 Companies Act, 2013, Section 141(3)(d)(ii). 19 Companies Act, 2013, Section 141(3)(d)(iii). 20 Companies Act, 2013, Section 141(3)(e). 21 Companies Act, 2013, Section 141(3)(f). 22 Companies Act, 2013, Section 141(3)(g). 23 Id.

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11. If he is a person who has been convicted by a court of an offence involving fraud and a period of ten years has not elapsed from the date of such conviction24; or

12. If any person whose subsidiary or associate company or any other form of entity, is engaged as on the date of appointment in consulting and specialised services as provided in section 144 of the Companies Act, 2013.25

These provisions for disqualifications ensure that the auditors keep no personal interest with the company and, therefore stand independent of the companies they audit.

If an auditor is found possessing any of these aforementioned disqualifications, he is liable to be vacated, and such vacancy in his office shall be deemed to be casual vacancy.26

CHAPTER 3: PROCEDURE FOR APPOINTMENT OF AUDITORS

APPOINTMENT OF FIRST AUDITOR

In case of Government Companies or companies controlled or owned partly or wholly by the Central or State Governments, it is the duty of the Comptroller and Auditor General of India to appoint its first auditor.

The criteria for his appointment is27:-

(a) Ordinarily, the Comptroller and Auditor General appoints the auditor.

(b) He has to appoint the auditor within 60 days from the date of registration of the company.

(c) Upon failure on the part of the Comptroller and Auditor General, the Board of Directors are given the responsibility of appointing the auditor.

24 Companies Act, 2013, Section 141(3)(h). 25 Companies Act, 2013, Section 141(3)(i). 26 Supra note 5. 27 Companies Act, 2013, Section 139(7).

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(d) They are bound to do so within subsequent 30 days on the failure of the Comptroller and Auditor General to appoint.

(e) If the Board fails to appoint the auditor within such time frame, the task is shifted to the members of the company.

(f) Such members are bound to appoint the auditor within subsequent 60 days on the failure of the Board, in an extraordinary general meeting.

In cases of companies other than Government Companies, the following is the criteria of appointment of the first auditor28:-

(a) He shall be appointed by the Board of Directors.

(b) The time frame within which such appointment is ought to be made is 30 days from the registration date of the company.

Upon failure of the Board to appoint such auditor:-

(a) The members shall be informed of the same;

(b) The members must call an extraordinary general meeting and must appoint their first auditor within 90 days of such notice.

The first auditor, in both Government as well as companies other than Government companies can hold office up until the conclusion of the first annual general meeting of the company.

APPOINTMENT OF SUBSEQUENT AUDITORS

In case of a Government Company, or any company which is controlled or owned partly or wholly by the Central or State Governments, it is the duty of the Comptroller and Auditor General to appoint the auditor within 180 days of the commencement of that particular financial year. He will hold his office till the next annual general meeting of the company.29

28 Companies Act, 2013, Section 139(6). 29 Companies Act, 2013, Section 139(5).

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In cases of companies other than the Government companies, the auditor is appointed by the company in its annual general meeting.30

The auditor of a company is either appointed by the Audit Committee, formed in accordance with Section 177 of the act (procedure of which, is explained later on in this paper), or by the Board of directors.31

The Board, while appointing such auditors, has to take into consideration the qualifications and experience of the individual/firm proposed to be considered for appointment as auditor and whether such qualifications and experience are commensurate with the size and requirements of the company concerned.32

The procedure for the same stands as such:-

1. The Board of Directors decides to select a given person/firm to be appointed as its auditor, before commencing the pre-appointment phase.

2. In the pre-appointment phase, the selected person/firm has to provide his consent in writing, showing his/its intention to do the selected job.33

3. The selected person, then has to provide a certificate, consisting of the following:-

(a) If the company appoints that given person/firm, it shall only appoint him/it with the conditions that the company has prescribed and the person/firm certifies his acceptance through this medium34, and

30 Companies Act, 2013, Section 139(6). 31 Companies (Audit and Auditors) Rules, 2014, Rule 3(1). 32 Id. 33 Companies Act, 2013, Section 139(1)(Proviso 2). 34 Id.

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(b) The certificate would also certify that the selected person is free every of its disqualifications as mentioned in Section 141 of the Companies Act35, described in Chapter 2 of the paper.

4. At every annual general meeting of the company, the company shall place the matter of appointment of auditor for ratification by its members.36

5. At the company’s first annual general meeting, or, at its every sixth annual general meeting, the members of the company would officially appoint the selected person/firm as auditor.37

6. In the post-appointment phase, the company first informs the said person/firm of his/its official appointment as the auditor.38

7. Then, the company must file the notice of such appointment with the Registrar of Companies within 15 days of the termination of meeting in which the auditor got appointed.39

Before appointment of the auditor, there lies a duty on the Board to take into consideration as to whether the to be appointed individual/firm has any order or pending proceeding with regards to professional matters of conduct under any adjudicatory body.40

APPOINTMENT THROUGH AUDIT COMMITTEE

The Companies Act, 2013, through Section 177 makes it mandatory for every listed company and such other classes of companies to form an audit committee for appointment of auditors.41 This committee must consist of 3 or more directors, in which the independent directors shall hold a majority.42 The major activity that is performed by this committee, through recommendation is

35 Companies Act, 2013, Section 139(1)(Proviso 3). 36 Companies Act, 2013, Section 139(1)(Proviso 1). 37 Supra note 3. 38 Companies Act, 2013, Section 139(1)(Proviso 4). 39 Id 40 Companies (Audit and Auditors) Rules, 2014, Rule 3(1)(Proviso). 41 Companies Act, 2013, Section 177(1). 42 Companies Act, 2013, Section 177(2).

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“appointment, remuneration and terms of appointment of auditors of the company”43.

The procedure for appointment through Audit Committee stands as such:-

1. First, the Audit Committee must ensure that the to be appointed auditor must not have any pending adjudication with regards to matters of professional conduct, in any adjudicatory body, be it ICAI or any other competent court.44

2. Then, the Committee shall take into consideration the qualification and experience of the individual/firm to be an auditor, keeping an eye on the size and requirements of the company.45

3. After fulfilling the above two requirements, the Committee will recommend the name of an individual or a firm as auditor to the Board for consideration.46

4. If the Board agrees with the recommendation of the Audit Committee, it shall further recommend the appointment of an individual or a firm as auditor to the members in the annual general meeting,47 and if it disagrees with such recommendation, it has to refer back its disagreement with reasons.48

5. Thereafter, if the Audit Committee, after considering the reasons given by the Board, decides not to reconsider its original recommendation or reconsiders its original reconsideration, the Board has to record reasons for both the cases, along with its own recommendation, for consideration of the members in the subsequent annual general meeting.49

43 Companies Act, 2013, Section 177(4)(i). 44 Supra note 39. 45 Supra note 30. 46 Companies (Audit and Auditors) Rules, 2014, Rule 3(3). 47 Companies (Audit and Auditors) Rules, 2014, Rule 3(4). 48 Companies (Audit and Auditors) Rules, 2014, Rule 3(5). 49 Companies (Audit and Auditors) Rules, 2014, Rule 3(6).

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6. Lastly, in the annual general meeting of the company, the auditor will be appointed by these aforesaid considerations and will hold his office till the sixth subsequent annual general meeting, from the conclusion of that meeting,50 provided his appointment is ratified in every such meeting till the sixth meeting.51

An important point that is to be noted here is that, if, the members don’t ratify both the considerations of the board or Audit Committee regarding the appointment of a given individual/firm as an auditor, then the Board has to again reiterate the same steps, for appointment of another individual/firm as the auditor.52

CHAPTER : DURATION OF APPOINTMENT

The Companies Act, 2013 has made it expressly clear that any company which has come into existence prior to the act’s inception has to comply with the limitations provided by it with regards to the duration of appointment of an auditor, under all circumstances.53

These guidelines for duration of appointment apply to all listed companies belonging to a certain class, as mentioned in Section 139(2) of the 2013 Act. Such classes of companies are:-

(a) “all unlisted public companies having paid up share capital of rupees ten crore or more;

(b) all private limited companies having paid up share capital of rupees twenty crore or more;

(c) all companies having paid up share capital of below threshold limit mentioned in (a) and (b) above, but having public borrowings from financial institutions, banks or public deposits of rupees fifty crores or more.”54

The said guidelines, stand as such:-

50 Companies (Audit and Auditors) Rules, 2014, Rule 3(7). 51 Companies (Audit and Auditors) Rules, 2014, Rule 3(7)(Proviso). 52 Companies (Audit and Auditors) Rules, 2014, Rule 3(Explanation). 53 Companies Act, 2013, Section 139(2)(Proviso 2 to Proviso). 54 Companies (Audit and Auditors) Rules, 2014, Rule 5.

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The auditor, once appointed in a given annual general meeting has to hold his/its office till the conclusion of six subsequent same meetings.55 However, a given person’s tenure as an auditor cannot exceed by more than one term of 5 consecutive years as an auditor56, and in case of an audit firm, it cannot exceed by more than two terms of 5 consecutive years as an auditor.57

Once an individual completes his maximum duration of 5 consecutive years in one term, he is not eligible for reappointment in the same company for the subsequent 5 years58, and in case of an audit firm, after its two terms of 5 years completion, it shall also, not be eligible for reappointment as an auditor in the same company for the subsequent 5 years.59

A tricky situation may arise, if in a case, any given audit firm’s common partner was the auditor of a given company and has just finished its tenure of audit, the new firm cannot take over its appointment as the auditor of that company, because of the fact that it was a common partner to the former auditing firm.60

Notwithstanding any procedure regarding the duration of appointment and retirement, the Companies Act, 2013 has empowered every Company to have the right to remove the appointed auditor, at any time it wishes. The same case applies for the auditor’s resignation, too.61

CHAPTER 5: REAPPOINTMENT

A given person/firm can be reappointed as an auditor if:

55 Supra note 3. 56 Companies Act, 2013, Section 139(2)(a). 57 Companies Act, 2013, Section 139(2)(b). 58 Companies Act, 2013, Section 139(2)(Proviso (i)). 59 Companies Act, 2013, Section 139(2)(Proviso (ii)). 60 Companies Act, 2013, Section 139(2)(Proviso 1 to Proviso). 61 Companies Act, 2013, Section 139(2)(Proviso 3 to Proviso).

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(a) After his previous tenure as auditor, he/it hasn’t undertaken any of the disqualifications62 from being an auditor;

(b) he is not disqualified for re-appointment63;

(c) he has expressly not consented his unwillingness to be reappointed as the auditor64;

(d) he/it has completed duration of non-eligibility of reappointment after his retirement as the auditor.6566; and

(e) If a special resolution hasn’t been passed regarding:

(i) Appointing another person as auditor, or

(ii) That given individual/firm ought not to be reappointed.67

The procedure for reappointment is absolutely the same as the procedure of appointment of an auditor.68

CHAPTER 6 : ROTATION OF AUDITORS

The Companies Act, 2013 has provided the terms for rotation of auditors, subject to members’ approval, both in cases of Audit firm69 and individual auditor.70 The rules for rotation have been provided in the Companies (Audit and Auditors) Rules, 2014 and stand as such:-

62 Companies Act, 2013, Section 141. 63 Companies Act, 2013, Section 139(9)(a). 64 Companies Act, 2013, Section 139(9)(b). 65 Supra note 55. 66 Supra note 56. 67 Companies Act, 2013, Section 139(9)(c). 68 Companies Act, 2013, Section 139(1)(Explanation). 69 Companies Act, 2013, Section 139(3)(a). 70 Companies Act, 2013, Section 139(3)(b).

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Number of consecutive years for which an individual auditor has been functioning as auditor in the same company [in the first AGM held after the commencement of provisions of section 139(2)]

Maximum number of consecutive years for which he may be appointed in the same company (including transitional period)

Aggregate period which the person would complete in the same company in view of column I and II

I II III 5 years (or more than 5 years)

3 years 8 years or more

4 years 3 years 7 years 3 years 3 years 6 years 2 years 3 years 5 years 1 year 4 years 5 years

TABLE 1: Illustration explaining rotation in case of individual71

No. of consecutive years for Which an audit firm has been Functioning as auditor in the Same company

Maximum no. of Years for which The firm might be Appointed in the Same company

Aggregate period which the firm would complete in the same company in view of column I and II

I II III

10 years (or more than 10 years)

3 years 13 years or more

9 years 3 years 12 years


71 Companies (Audit and Auditors) Rules, 2014, Rule 6, Illustration 1.

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1 year 9 years 10 years

TABLE 2: Illustration explaining rotation in case of audit firm72

CHAPTER 7: APPOINTMENT AT THE TIME OF VACANCY

The expression “causal vacancy” has neither been defined in the 1956 Companies Act, not the 2013 Companies Act. “Its natural meaning has to be that it is a vacancy caused by an auditor ceasing to act as such after having accepted a valid appointment.”73 This vacancy could arise due to death of the person, or even disqualification of the person concerned.

At the time of casual vacancy, the following is the procedure of audit:

In Government Companies or any company which is controlled or owned partly or wholly by the Central or State Governments:

(a) The auditor has to be appointed by the Comptroller and Auditor General of India.74

(b) The said appointment has to be made within 30 days of vacancy.75

(c) Upon failure of the Comptroller and Auditor General of India to appoint the auditor within 30 days, the job is shifted to the Board of

72 Companies (Audit and Auditors) Rules, 2014, Rule 6, Illustration 1. 73 Kamal Gupta, Contemporary Auditing, Page. 484 (6th Ed. 2005). 74 Companies Act, 2013, Section 139(8)(ii). 75 Id.

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Directors of the company who shall perform the same job, within subsequent 30 days.76

In companies other than the aforementioned companies77:

(a) The auditor has to be appointed by the Board of Directors.

(b) The said job has to be done, within 30 days of the vacancy.

If a causal vacancy is created due to resignation of an auditor78:

(a) The Board will recommend the new auditor.

(b) The company must approve the same in the next general meeting which has to take place within 3 months.

(c) The appointed auditor has to hold his office till the next annual general meeting of the company.

CONCLUSION

The main objective for making this research paper was presenting a clear viewpoint of the intention of the legislature in the new Companies Act. It is so, because the procedure for appointment and duration for the same has been completely changed since the inception of the new act. For instance, in the old act, the maximum duration till the tenure of an appointed auditor comes to an end is till the subsequent annual general meeting, whereas under the new act, the said duration has increased up to the sixth successive annual general meeting.

Similarly, many of the judgements now hold no value, because the legislature has completely changed the laws. Hence, this analysis was a much needed one, considering the importance of auditors in every company. This paper is also an exhaustive presentation which includes the rules of Companies (Audit and Auditors) Rules, 2014.

76 Companies Act, 2013, Section 139(8)(ii)(Proviso). 77 Companies Act, 2013, Section 139(8)(i). 78 Id.

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Whereas the said rules look clear by a bare reading of them, we still wait for judicial interpretation of them, as time will pass by, which would add further meaning to them.

ANNOTATED BIBLIOGRAPHY

The following sources were essential writing this research paper:

BOOKS

1. Ravinder Kumar, Vijender Sharma, Auditing Principles and Practice, (1st ed. 2005): Ravinder Kumar and Vijender Kumar discuss about the necessity of auditing. They say that “The main purpose of an independent audit is to determine if the financial statements fairly represent the actual financial position and the working results of a business enterprise.”

2. A.K. Majumdar, G.K. Kapoor, Company Law and Practice (17th Ed. 2011): Majumdar cites the objects of auditing as cited in ICAI:

“The objective of an audit of financial statements, prepared within a framework of recognised accounting policies and practices and relevant statutory requirements, if any, is to enable an auditor to express an opinion on such financial statements.

The auditor’s opinion helps in determination of the true and fair view of the financial position and operating results of an enterprise. The user, however, should not assume that the auditor’s opinion is an assurance as to the future viability of the enterprise or the efficiency or effectiveness with which management has conducted the affairs of the enterprise”.

3. Kamal Gupta, Contemporary Auditing, (6th Ed. 2005): He gives an example of why casual vacancy happens: “Its natural meaning has to be that it is a vacancy caused by an auditor ceasing to act as such after having accepted a valid appointment.”

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STATUTE

1. Companies Act, 2013: From this act, the following sections were useful:

(a) Section 139: Appointment of auditors

(b) Section 141: Eligibility, qualifications and disqualifications of auditors

(c) Section 177: Audit Committee

RULE

1. Companies (Audit and Auditors) Rules, 2014: The following rules were useful:

(a) Rule 3: Manner and procedure of selection and appointment of auditors

(b) Rule 5: Class of Companies

(c) Rule 6: Manner of rotation of auditors by the companies on expiry of their term

(d) Illustration explaining rotation in case of individual

(e) Illustration explaining rotation in case of audit firm

ONLINE RESOURCES

1. http://Advocatekhoj.com: It provided online bare act of Companies Act, 2013

2. http://Books.google.com: It provided me the online versions of the books that I cited

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TRIAL BY MEDIA- A CRITICAL ANALYSIS OF JUDICIAL PRONOUNCEMENTS

Jagjeet Vashishtha*

Harsh Sharma**

Introduction

Trial by media is not an alien phrase to Indians. The passionate trial of Satnam Singh and co. in the Indira Gandhi murder case, the Mathura rape case all show the spontaneous outpouring of public angst1.In the famous case of R.K. Anand v Delhi High Court2, The Apex Court has defined The expression `trial by media'. According to the Supreme Court, it means-

“The impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt regardless of any verdict in a court of law. During high publicity court cases, the media are often accused of provoking an atmosphere of public hysteria akin to a lynch mob which not only makes a fair trial nearly impossible but means that, regardless of the result of the trial, in public perception the accused is already held guilty and would not be able to live the rest of their life without intense public scrutiny.”

The Legal status of Trial by Media

The freedom of press

Article 19(1)(a) of the constitution of India states that –

All citizens shall have the right to freedom of speech and expression. However, this right can be restricted in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. * Student , Semester VII,Institute of law Nirma University ** Student , Semester V, Institute of law Nirma University 1 “TRIAL BY MEDIA – THE JESSICA LAL CASE”, available at http://ssrn.com/abstract=1003644 (visited on February 11,2014) 2 (2009) 8 SCC 106

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Apart from the abovementioned provisions several judicial pronouncements also strengthen the right to free speech and expression In Reg. v. Gray3, it was held that the liberty of the press is no greater and no less than the liberty of every subject of the Queen.' Translating this principle in terms of our Constitution we may say that in India also it is no greater or no less than the liberty of every citizen of the Republic.

In Indian Express Newspapers v Union Of India4, it was held that that the press plays a crucial role in the democratic setup. The courts have a duty to uphold the freedom of press and invalidate all laws and administrative actions that abridge that freedom. A law which imposes pre-censorship or curtails the circulation or prevents newspapers from being started is violative of the article 19(1)(a). The court held that the freedom of press has three essential elements. They are- (1)freedom of access to all sources of information, (2)freedom of publication, and (3) freedom of circulation. If anyone of these freedom is curtailed then there is a clear violation of the fundamental right guaranteed under article 19(1)(a) of the constitution of India.

In Romesh Thappar vs The State Of Madras5, it was held that there can be no doubt that freedom of speech and expression includes freedom of propagation of ideas and this cannot be curtailed until there is clear threat to public order and tranquility.

Similarly in Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express6, the court held that “Right to Know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon the responsibility to inform.”

3 (1900) 2 QB 36 at p. 40 4 (1985) 1 SCC 641. 5 1950 SCR 594 6 1988(4) SCC 592

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Freedom up to which extent?

Article 19 of the International Covenant on Civil and Political Rights, 1966, embodies the right to freedom of speech, that is, “everyone shall have the right to hold opinions without interference” and the “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” However just like the right to freedom of speech and expression enshrined in the Indian Constitution, this right also has some restrictions. The task to determine the clear scope of this right challenged the legal scholars all over the world and to solve this problem, in 1994, a group of 39 distinguished legal experts and media representatives was convened by the International Commission of Jurists, its Centre for the Independence of Judges and Lawyers, and the Spanish Committee of UNICEF, in Madrid, Spain.7

This meeting was intended to examine the relationship between the media and judicial independence and to formulate principles to help the media and the judiciary develop a relationship that serves both freedom of the expression and the judicial independence. The meeting resulted in the formation of certain basic principles for the media and some restrictions on it.

Out of these, one restriction reads-

Laws may restrict the basic principle in relation to criminal proceedings in the interest of the administration of justice to the extent necessary in a democratic society for the prevention of serious prejudice to a defendant, and for the prevention of serious harm to or improper pressure being placed upon a witness, a member of a jury, or a victim.

Similarly, In India, Article 19(1)(a) of the Constitution of India gives the freedom of speech and expression and the Article 19(2) permits reasonable restrictions to be imposed by statute for the

7 G.N.Ray. “TABLOIDIZATION AND PAGE 3 SYNDROME :UNETHICAL PRACTICES IN MEDIA”, NALSAR media law review(2010) VOL.1

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purposes of various matters including ‘Contempt of Court’. Article 19(2) does not directly refers to ‘administration of justice’ but interference of the administration of justice is clearly referred to in the definition of ‘criminal contempt’ provided in section 2 of the Contempt of Courts Act, 1971 and in section 3 thereof as amounting to contempt. This is the reason due to which the publications which interfere or tend to interfere with the administration of justice amount to criminal contempt under that Act and if in order to preclude such interference, the provisions of that Act impose reasonable restrictions on freedom of speech, such restrictions would be valid.

However there is some sort of technicality involved in this issue. The section 3(2) of the Contemt of Courts Act, 1971 does not cover those publications by media which have been published before the initiation of the trial8. The question therefore rests on the fact that when the trial is deemed to have started.

In Queen v. Payne9 Lord Russell C. J., and Wright, J have observed that”, in my opinion, in order to justify an application to the Court the publication complained of must be calculated really to interfere with a fair trial, and, if this is not the case, the question does not arise whether the publication is so objectionable in its terms as to call for the interference of the Court.”

Supreme Court in the case of Surendra Mohanty v.State of Orissa10 observed that filing of an FIR could not be the starting point of pendency of a criminal case. This decision of the Supreme Court gave liberty to the media to publish the news in most cases because there is a delay in lodging of the FIR.

In Smt. Padmavati Devi v. R.K. Karanjia11, it was held that filing of the first information report was sufficient to attract the jurisdiction of contempt, it was not necessary that the trial of the

8 Law commission of India, 200th report, page 2-3 9 (1896) 1 Q. B. 577 at p. 581 (D). 10 AIR 1999 SC 2181 11 AIR 1963 MP 61

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accused must be imminent in the sense that committal proceedings must have been instituted.

Then in the case of A.K. Gopalan v. Noordeen12, the court corrected its mistake and observed that ‘arrest’ could be termed as the starting point of the trial and a publication made after ‘arrest’ of a person could be contempt if it was prejudicial to the suspect or accused.

The role of media in ensuring justice-

Media has always been accused of meddling in the justice delivery system but on the other hand it is equally true that media has played a great role in imparting justice to the helpless. There are no. of cases in media has uncovered the shameful practices going on in the criminal justice system of the country.

In the case of Munna and others v. State of U.P.and others13,writ petition was filed on the basis of an article published in the Indian Express which revealed the fact of sexual exploitation of juveniles who were kept in the ordinary prison instead of the children’s home. The news story revealed that in the prison “young boys of 10 to 14 years were being supplied to convicts for their delectation” and a boy named Munna, was in agony because "after the way he was used, he was unable to sit.” The court rejected the argument that the report was unreliable and said “The allegations are indeed so serious and, if correct, disclose to what utter depths of depravity man can sink, that the court cannot abdicate its constitutional duty of ensuring human dignity to the juvenile under trial prisoners and summarily throw out the three writ petitions.” The court took immediate steps to ensure the dignity of the juveniles and ordered a probe.

The most celebrated example is the Jessica Lal murder case in which the accused was acquitted by the trial court. The media helped in the formation of public opinion against this acquittal which resulted in the filing of an appeal by the state. The recent case of Nirbhaya(Dehli

12 1969 (2) SCC 734 13 1982 AIR 806

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rape case) showed the power and significance of media in the formation of public opinion. The 24x7 coverage by the media forced the police to speed up the investigation and the whole trial was concluded within months which would have been impossible without the involvement of media. This time even the legislators were forced to pass a bill containing provisions for the strict punishments in crimes against women (Criminal amendment act 2013)14. Similarly the Sheela Barse case15 highlighted the need for a uniform Act regarding children and thus the Juvenile Justice Act, 1986 came as a result of this media activism.

The list does not end here, the Priyadarshini Matto case, Nithari killings and the Arushi Talwar’s case , media has served as an amicus curiae outside the court.

In 1984, hundreds of Sikhs were killed during violent reprisals after the assassination of the former Prime Minister Indira Gandhi by her Sikh bodyguards. The judicial commission which was set up for the inquiry was not of much use in punishing the culprits but in stark contrast to this the Godhra riots of 2002 caught more attention due to the active media16 .A sting operation conducted by a magazine culminated in the arrest of political activists and even a former minister.23 A senior lawyer, serving as amicus curiae in one of the Gujarat riots cases, has admitted that the media’s coverage of events has pressurized the police to investigate the cases seriously.17 18

The Jessica Lal Case-

14Criminal amendment act, 2013, available at http://164.100.47.133/BillsPDFFiles/Notification/2013-63-gaz.pdf (visited on February 8,2014) 15 Sheela Barse & Ors vs Union Of India & Ors 1986 SCALE (2)230 16 Nidhi Bhardwaj, “Missing the Story: Where was the Media in 1984?” , available at http://ibnlive.in.com/news/missing-the-story-where-was-the-media-in-1984/61753-3.html (Last visited February 9, 2014) 17 “Trial By Media, Last Hope for Justice in Gujarat”, available at http://ibnlive.in.com/news/trial-by-media-last-hope-for-justice-in-gujarat/51464-3-single.html (Last visited February 12, 2014) 18 Arpan Banerjee, “Judicial safeguards against”trial by media”:Should blasi’s”checking value” thory apply in India”, available at http://ssrn.com/abstract=1737432 (Last visited on February 15, 2014)

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In the case of Sidhartha Vashisht @ Manu Sharma vs State (Nct Of Delhi)19, famously known as the Jessica Lal case, there were allegations by the defense lawyer Mr. Ram Jethmalani that the appellant had been specifically targeted and maligned before and during the proceedings by the media, which proclaimed him guilty even after the acquittal by the trial court.20

However the Supreme Court ruled out the claim that the judgment has been affected by the Media trial. The Supreme Court said that “every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible”.

Priyadarshini Matto case21

This case involved the gruesome rape and murder of a 25 year law student by the son of a senior I.P.S. officer. In this case the trial court acquitted the accused and in a 450 page judgment the judge came down heavily on the role of Delhi Police; “There has been particular inaction by Delhi Police”, he said, while commenting that the accused’s father may have used his official position to influence the agencies. “The influence of the father has been there in the matter and there was deliberate inaction” (at the time his father was second in command of the police forces in Delhi).22

After that due to tremendous pressure by the media and a growing public outcry, the Central Bureau of Investigation (CBI)

19 Criminal appeal No. 179 OF 2007 with Criminal appeal No. 157 OF 2007 and Criminial appeal No. 224 OF 2007 20“ Supreme Court confirms life term to Manu Sharma, J. VENKATESAN”, April 20, 2010, available at http://www.thehindu.com/news/national/article403180.ece (Lat visited on February 6, 2014) 21 State (Through Cbi) vs Santosh Kumar Singh 2007 CriLJ 964 22 “Priyadarshni Mattoo” http://en.wikipedia.org/wiki/Priyadarshini_Mattoo (Last visited 13 February,2014)

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appealed in the High Court and the High Court convicted the accused and awarded capital punishment to him.

Sanjjev Nanda (BMW Hit and run) case23

This wealthy businessman crushed 7 people under his speeding BMW out of which 6 died. On the day of the accident, Sanjeev took his sister Sonali Nanda’s car from her residence to attend a party at his friend’s house. After the party, driving back in an inebriated state around 4 a.m., he ploughed into six persons near a petrol pump on Lodhi Road.24 During trial, a homeless man who had survived the accident revised a statement he had made to police and claimed that the victims had been mowed down by a truck rather than a car. This volte-face weakened the prosecution’s case.25

Then during the trial, NDTV came out with a sting operation revealing the ties between the defense, the prosecutor and the witnesses. This shocked the whole nation and there was a question put up on the whole justice deliver system. The Court then convicted Sanjeev Nanda but the whole incident became a black spot n the face of Indian Judiciary

In this case the judge was anxious about the increasing role of media in the trials and had to observe that “One other aspect which needs to be deliberated is the role of media especially in criminal trials. No doubt the media has an important role in disseminating information, creating public opinion in matters which are of vital concern to the society, exposing misdeeds of high and mighty but it is being exceedingly felt that while doing so in some cases particularly relating to crime and punishment, the media is going overboard. Many a times, an accused that is yet to be tried and convicted, is pronounced

23 Sanjeev Nanda vs The State Crl. Appeal No. 807/2008, High Court of Delhi 24 “Sanjeev Nanda’s friend acquitted”, available at http://www.hindu.com/2008/09/03/stories/2008090360271200.htm, (Last visited 10 February, 2014) 25“ BMW Case: Lawyers Collude, Stung, May 31, 2007”, http://ibnlive.in.com/news/bmw-case-lawyerscollude- stung/41781-3html?from=search-relatedstories , (Last visited on 9 February, 2014)

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guilty by the media by referring to such evidence which is not even admissible in evidence, such as, confessional statements made before police officers. The various channels of electronic media in order to outdo each other repeats an incident ad nauseam little realizing that it has the effect of generating public opinion against the culprit even before he is found guilty. Let not the media forget that judges are also humans and like any other human sometimes even they can err because of the hype created in relation to a particular incident. Like all other wings of our democratic set up such as executive, judiciary and legislature who are supposed to remain within their bounds, Media, which is the fourth estate, must also not cross the „Laxman Rekha‟. If it abides by this principle, it will be doing more good to the society and to the administration of justice.”

This shocked the whole nation and there was a question put up on the whole justice delivery system. The Court then convicted Sanjeev Nanda but the whole incident became a black spot the face of Indian Judiciary.

Media affecting the right to fair trial

The principles of natural justice ensure that everyone should get a chance of fair trial which includes-

1. Right to be heard

2. Impartial Judiciary

3. Judgment based on sound reasoning

In the case of a trial by media , all these rights of the accused are hampered because he is given no chance of hearing and the judges are also under the pressure created by the media. Suspects and accused apart, even victims and witnesses suffer from excessive publicity and invasion of their privacy rights. Police are presented in poor light by the media and their morale too suffers.26

26 Law commission of India 200th report onTrial By Media free Speech and Fair Trial Under Criminal Procedure Code , Page 15 1973(August 2006)

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In Leo Roy Frey v R. Prasad And Ors.27, the court held that “ Parties have a constitutional right to have their cases tried fairly in Court, by an impartial tribunal, uninfluenced by newspaper dictation or popular clamour. What would become of this right if the press may use language in reference to a pending cause calculated to intimidate or unduly influence and control judicial action.”

In R. v. Evening Standard Co. Ltd.28, the Court observed that the publication of comments on cases before they are tried or alleged histories of a prisoner on trial, or of a false or mistaken report of proceedings in Court is an interference with the due course of justice which the Court in the exercise of its summary jurisdiction will prevent and punish, whether such interference is intentional or not; and in such cases the principle of vicarious liability applies.

In M.P. Lohia vs. State of West Bengal29, the Supreme Court condemned a biased article in a newspaper which contained the allegations made by the parents of the wife in an alleged dowry death case but the record filed by the accused that his wife` was schizophrenic were not published. It was later revealed that this publication created a sort of pressurized atmosphere for the judges.

In the case of State of Maharashtra v. Rajendra Jawanmal Gandhi30,the Supreme Court has held that a trial by media is the very ‘anti-thesis of rule of law’ and can most likely lead to miscarriage of justice. The court also said that when there are such public opinions formed by the media, it is very difficult for a judge to come at a fair conclusion.

In Anukul Chandra Pradhan vs. Union of India31, the Supreme Court held that “No occasion should arise for an impression that the publicity attached to the present matters has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of 27 AIR 1958 P H 377 28 (1954) 1 Q. B. 578 (E) 29 AIR 2005 SC 790 30 1997 (8)SCC 386 31 1996(6) SCC 354

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jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial.”

In Saibal v. B.K. Sen32 the Supreme Court said: “It would be mischievous for a newspaper to systematically conduct an independent investigation into a crime for which a man has been arrested and to publish the results of the investigation. This is because, trial by newspapers, when a trial by one of the regular tribunal is going on, must be prevented. The basis for this view is that such action on the part of the newspaper tends to interfere with the course of justice”.

The Andhra High Court in Labour Liberation Front, Regd. v The State Of A.P33 In the recent past, the freedom of the prosecuting agency, and that of the Courts, to deal with the cases before them freely and objectively, is substantially eroded, on account of the overactive or proactive stances taken in the presentations made by the print and electronic media. Once an incident involving prominent person or institution takes place, the media is swinging into action and virtually leaving very little for the prosecution or the Courts to examine the matter. Recently, it has assumed dangerous proportions, to the extent of intruding into the very privacy of individuals. Gross misuse of technological advancements, and the unhealthy competition in the field of journalism resulted in obliteration of norms or commitment to the noble profession. The freedom of speech and expression which is the bed rock of journalism, is subjected to gross misuse. It must not be forgotten that only those who maintain restraint can exercise rights and freedoms effectively.

The High Court of Orissa in Bijoyananda v. Bala Kush34 observed that “the responsibility of the press is greater than the responsibility of an individual because the press has a larger audience. The freedom of the press should not degenerate into a licence to attack

32 AIR 1961 SC 633 33 Writ Petition No.23220 of 2004 34 AIR 1953 Orissa 249

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litigants and close the door of justice nor can it include any unrestricted liberty to damage the reputation of respectable persons.”

We have observed the cases in which media helped in imparting justice and the cases where the media threatened the delivery of justice. The question now arise that whether media trial can be excused in cases of public interest or it should be a concrete rule that media trial is inexcusable. To come to an answer to the above question we may take the help of the following case laws.

In Ex Parte Bread Manufacturers Ltd35., Chief Justice Jordan observed that,

“It is of extreme public interest that no conduct should he permitted which is likely to prevent a litigant in a court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant. It is well settled that a person cannot be prevented by process of contempt from continuing to discuss publicly a matter which may fairly be regarded as one of public interest, by reason merely of the fact that the matter in question has become the subject of litigation, or that a person whose conduct is being publicly criticized has become a party to litigation either as plaintiff or as defendant, and whether in relation to the

35[1937] 37 SR (NSW) 242

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matter which is under discussion or with respect to some other matter.”

Similarly in Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express36it was observed that, The process of due course of administration of justice must remain unimpaired. Public interest demands that there should be no interference with judicial process and the effect of the judicial decision should not be pre-empted or circumvented by public agitation or publications. It has to be remembered that even at turbulent times through which the developing countries are passing, contempt of court means interference with the due administration of justice.

Reputations Tarnished

Whatever be the legal implications of media till, the public is satisfied with the deeds of media until it helps in imparting justice but the problem starts when the media makes allegations a some famous person and those allegations are found baseless in the court of law. In this situation, the court can only acquit the accused but the court of law does not have power to rebuild the reputation of the person which had been tarnished due to the trial by media.

In the case of Swami Nithyanand, the reputation of the Swami and the actress Ranjitha was tarnished and the court had to order the channel releasing the objectionable video to broadcast an apology. The thing which should be kept in mind is that if once a person is defamed then it is almost impossible to bring back his/her fame.

Similarly in the recent case involving Aasaram Bapu, even if after the trial the court acquits him, he will not be able to gain his reputation once again. Tarnishing the reputation of a person is such a crime which is impossible to be compensated as no compensation can be enough for a person who has lost his reputation and fame.

Where’s the way out?

36 1988(4) SCC 592

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Therefore there is a need of concrete measures in order to stop this crime. First of all we should consider the view of the Supreme Court as stated in the case of Smt. Padmavati Devi v. R.K. Karanjia37. In this case the court stated that “Newspapers are not infrequently owned by wealthy proprietors who in the words of Darling J. in Ex parte Crippen38, ‘will take the chances of the fine, and pay it cheerfully and will not feel that they have then paid too much for the advertisement.' Consequently the proper punishment should be and would have been imprisonment and it may yet be one in case the punishment we are about to award proves insufficient or not sufficiently deterrent to prevent its repetition for one reason or the other. But we do not do so in this case in the hope that what we have said is a sufficient warning to all concerned.”

The following safeguards should be adopted to lessen the evil effects of the ‘trial by media”-

1. There should be a concrete and unambiguous provision defining the media trial.

2. The provision should also specify the extent upto which media can exercise its freedom and as and when it encroaches over the field of judiciary, it should be strictly penalized as mentioned by the court in the case of of Smt. Padmavati Devi v. R.K. Karanjia39.

3. The courts should have the power to postpone any prejudicial publication i.e. whenever the court is of the opinion that the publication of any matter may cause real risk of serious prejudice to the cause of any proceeding or to the administration of justice in those proceedings or in any other criminal proceedings, the court should have the power to postpone the publication.40

37 AIR 1963 MP 61 38 (1911) 103 IT 636 at p. 640 39 AIR 1963 MP 61 40 Law commission of India 200th report on trial by media free speech and fair trial under Criminal Procedure Code , Page 238 1973(August 2006)

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4. The courts should leave the lenient way of dealing with the matters of contempt(in reference to media trial) and should suo motu initiate the contempt proceedings in case of gross violation of code of ethics by the media.

Conclusion

The whole scenario of “Trial by media” can be termed as a one organ filling the vacuum created due to the malfunctioning of the other. When the legislature fails to enact certain laws which are of utmost importance to the society, then at that time the judiciary comes to rescue by way of formulating guidelines. The most famous example of this sort of 'judicial activism' is the Vishaka case41. If we look at 'Trial by media”, then we find similar sort of activism when the media has tried to fill the vacuum created by the malfunctioning of the judiciary. However, just like judicial activism, Trial by media also needs to be regulated because if absolute power is given to the media then there will be chaos in the society. Therefore we need to understand that media trial is not bad in itself but it becomes problematic when it encroaches over the arena of judiciary to the extent of denial of fair trial to the accused and at that point it needs to be regulated and for this the legal provisions have to be amended. The media should always remember that the worst thing for any society is 'The savior turning into destroyer”.

41Vishakha and others v State of Rajasthan and others AIR1997SC3011

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PERFORMANCE OF CONTRACT-JOINT RIGHTS AND LIABILITIES

Reddy Pawan Kumar*

Introduction

A contract is discharged when the agreement is terminated. The most desirable case is when a contract terminates because it has been completely performed with all its terms carried out. There are many ways of discharging a contract. One of the modes of discharging a contract is by performance of the contract. The general rule is that the parties must perform precisely all the terms of the contract in order to discharge their obligations1 under the contract, unless the performance is dispensed with or excused under the provisions of the Contract Act, or of any other laws 2.But there are several ways by which the harness of this rule can be dealt with.

Also, if a contract is terminated because of a party’s breach or default , ‘damages’ are given in the form of compensation of money or specific performance enforced through an injunction. One such important purpose of the Indian Contract Act, 1872 is to lay down the conditions for the formation of an enforceable contract and to provide the condition for the recovery of remedial damages for breach of Contractual commitments. Joint liability is one such concept which is used by all the courts in cases where there are more than two parties to a contract. This concept essentially establish who is responsible for what act or omission, or as in case of joint liability all promisors, will be held liable together.

Although, most of the codified Contract Law we have are codified from the English Common Law .But there are parts which are in variance with the English Common Law principles. The concept of

* III Semester, College- National University of Advanced Legal Studies, Kochi 1 Cutter v Powell (1765) 6 Term Rep 320 2 S. 37. Performance may be dispensed with, for example, by agreement [S. 62] or it may be excused under S. 56 by supervening impossibility of performance. Syndicate Bank v R. Veeranna, (2003) 2 SCC 15.

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Joint Rights and Liabilities is one such example. There are certain provision in the Joint Liability and Rights section which marks the departure from the English Common Law.

Performance of Contracts

The most obvious way in which a contract is discharged is by both parties performing their obligations under it. In many cases this is quite straightforward, but there are circumstances in which one party may claim to have performed and therefore, for example, be entitled to payment, yet the other disagrees. As a result, the laws has had to address the question of what will amount to performance.

Section 37 of Indian Contact Act 1872 provides for this it lays down the obligation of parties to contracts. It says that the parties to a contract must either perform or offer to perform their respective promises, unless such performance is dispensed / with-or excused under the provision of the Indian Contract Act, or any other law

Promises bind the representative of the promisors in case of the death of such promisors before performance, unless a contrary intention appears from the contracts.

The Entire Performance Rule

The general rule of is that a performance must exactly match the requirements laid down in the contract, and this is known as entire performance. If the other party fails to perform entirely, the other need not to pay anything, even if the shortfall in performance actually causes no hardship3.This rule can also allow parties who wish to escape from what has become unprofitable contract to do so by taking advantage of the most minor departures from its terms4.

Mitigation of the Entire Performance Rule

In practise, contracts requiring entire performance are the exception rather than the rule, although contracts for the sale of goods

3 Cutter v Powell (1765) 6 Term Rep 320 4 Re Moore & Co Ltd and Landauer & Co (1921)

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are usually entire. There are several ways in which the harshness of the rule is mitigated.

Obligation of the Parties to Perform

When a transaction is done with consensus ad idem it is considered to be a concluded contract5.Also when an agreement is fully acted upon without the need for executing any further documents it is held as a complete agreement6 the parties are obligated to perform.

Substantial Performance

This doctrine allows a party who has performed with only minor defects to claim the price of the work done, less any money the other party will have to spend to put the defects right. The doctrine will only apply where the claimant has breached a warranty, or has breached an innominate term in a way that is not serious; it cannot be used where the claimant has breached a condition of the contract.7Ambiguity arises as to what is substantial performance 8

In Hoenig v Isaacs 9an interior designer contracted to refurbish a flat for $750.the defendant had paid $400 in advance, but then refused to pay the rest $350 on the grounds saying that the design and workmanship was defective. The court agreed that there were problems but the cost of putting these defects rights would be only $56.Consequently it was held that decorator had substantially performed and was entitled to the balance of the contract price, less the needed $56 to put right the defects.

Severable Contracts

A contract is said to be severable where payment becomes due at various stages of performance, rather than in one lump sum when the

5 M.Kamalakannan v M. Manikanndan, (2011) 4 CTC 139 6 Geo Group Communications Inc v IOL Broadband Ltd, (2010) 1 SCC 562 7 Boone v Eyre (1779) 8 Bolton v Mahadeva (1972) 1 WLR 1009 9 Hoenig v Isaacs (1952) 2 AII ER 176

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performance is complete. Most contracts of employment are examples of this

In severable contracts, the price for each stage can be claimed when that stage is completed, even though the party concerned may be in breach of the contract for not completing the subsequent stages10

Voluntary Acceptance of Partial Performance

In some cases while the contract may not originally intended to be severable, where the party to whom the promise of performance was made receives the benefit of partial performance of the promise under such circumstances that he is able to accept or reject the work and he accepts the work, then the promisee is obliged to pay a reasonable price for the benefit received.

But it must be possible to infer from the circumstances a fresh agreement by the parties that payment shall be made for the goods or services in fact supplied11

Prevention of Performance by Other Party

Where a party to an entire contract is prevented by the promise from performing all his obligations, then he can recover a reasonable price for what he has in fact done on a quantum meruit basis in an action in quasi-contract as held in Planche v Colburn (1831)12 where the plaintiff was contracted to write a book on costume and ancient armour, for fee of $100. After he had begun writing, the defendants decided to cease the publishing the series of which the book was to form a part. The author was able to recover $50 on a quantum meriut.

10 Catherine Elliot and Frances Quinn, Contract Law, p. 247, edn 3rd 11 Christy v Row (1808) 1 Taunt 300 12 Planche v Colburn (1831) 8 Bing 14

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Tender Performance

Tender Performance is when other party cannot perform without the other’s co-operation, rejection of an offer to perform will release the party tendering performance from any further obligation.13

In Starup v Macdonald (1843)14 the plaintiffs agreed to sell ten tonnes of oil to the defendants, to be delivered by the end of March. On the last day of March, the plaintiffs arrived with the oil at 8:30 pm, but the defendants refused to accept the delivery, saying it was too late in the day. The plaintiff sued for the damages, and were successful. The court held that they had done all they could to comply with the contract, and their tender of performance was sufficient basis for their claim.

S. 29(5) of the Sale of Goods Act 1979 now provides that the delivery must be made at a reasonable hour, so on the same facts a court might take a different approach today.

Stipulation as to Time of Performance

When time is of the essence then any failure to perform on time would lead to the termination of the contract, even if little or no hardship is caused.

There are three main ways in which a contract may be classified as one with time is of essence

First, the parties may explicitly state that in their agreements

Secondly, it may be inferred from the nature of the contract, or of the circumstances surrounding it.

Thirdly, where a contract is not originally one in which time is of the essence but, following a delay in performance, a contracting party gives notice of a time limit on performance. The contract then becomes one for which time is of the essence as held in the case of Charles Ricckards Ltd v Oppenheimer(1950). 13 Catherine Elliot and Frances Quinn, Contract Law, p. 248,edn 5th 14 Startup v M'Donald (1843) 6 M&G 593

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Joint Liabilities and Rights

According to English law, if one of the several joint promisors dies, the rights and liabilities under the contract devolve upon the surviving joint promisors. The representatives of the deceased promisor neither obtain any rights nor assume any liability, unless they are the representatives of the last surviving promisor15.But the Indian Contract Act dealing with Joint liabilities is variant from the English Common Law. Sections 42, 43 and 44 of the Contract Act deals with the question of liability of the joint promisors and Section 45 deals with the question of the rights of the joint promisor

Devolution of Joint Liabilities

Briefly looking into section 42 of the Indian contract Act, 1872, that states

‘When two or more persons have made a joint promise, then unless a contrary intention appears by the contract , all such persons during their joint lives, and , after the death of any of them, his representative jointly with the survivor or survivors, and after death of the last survivor, the representatives of all jointly must fulfil the promise.’

This Section makes the liability of joint promisors, joint and several. All promisors in this case are bound to perform the promise and in case of death of any promisor, the promise must be performed by the surviving promisors along with the legal representatives of the deceased promisor. On the death of the last survivor, the representatives of all of them must fulfil the promise which is subject to private arrangement between the parties who may expressly or impliedly prescribe a different rule16.

Devolution of Joint and Several Liabilities

Section 43 of the Indian Contract act, 1872, states that:

15 Avtar Singh, Contract and Specific Relief, p. 351, edn 11th 16 Gannmani Anasuya v Parvatini Amarchand Chowdhary,(2007) 10 SCC 296

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“Anyone of joint promisors may be compelled to perform – when two or more persons make a joint promise, the promise may, in the absence of express agreement to the contrary, compel any such of such joint promisors to perform the whole promise.

Each promise may compel contribution – Each of two or more joint promisors may compel every other joint promisor to contribute equally with himself to the performance of the promise, unless a contrary intention appears from the contract.

Sharing of loss by default in contribution – If any one of the two or more joint promisors makes default in such contribution, the remaining joint promisors must bear the loss arising from such default in equal shares.”

Section 43 entitles the promisee to claim performance from anyone or more of the promisors. It also provides for a right of one or more promisors to compel contribution from the others, and the sharing loss in the event of default in contribution. These provisions though can be altered by providing the contrary in the contract.

The section makes all joint contracts joint and several. Where debts are jointly incurred each promisee is liable for the whole amount17. A joint contract unenforceable against one of the joint promisors on the ground of lack of signature or his not having agreed at all, can be enforced only against the one who signed it18. It has also been held that neither the minority19 nor insolvency20of one of the joint promisor affects the liability of the others.

Also, if one of the joint promisors dies pending suit, the suit can be proceeded against the other defendant promisors without bringing his legal representatives on record.21

17 Dhanki Mahajan Vs. Rana Chandubha Vakhasting AIR 1969 SC 69 18 Sonkole Vs. Badridas AIR 1926 Nag 196 19 Dasarath Gayen Vs. SatyaNarayan Singh AIR 1963 Cal 325 20 BR Nagendra Iyer Vs. RV Subburamachari AIR 1935 Mad 1055 21 Jai KIshen Das v Ariya Priti NIdhi Sabha AIR 1921 Lah 357

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The series of sections under Section 43 substantially vary the rules of the common law as to the devolution of the benefit of and liability on joint contracts22and making all joint contracts joint and several, unless there is an express agreement to the contrary are concerned.

Illustration

A, B and C jointly promise to pay D $300. D may compel either A or B or C to pay him $300.

A, B and C jointly promise to pay D the sum of $300. C is compelled to pay the whole. A is insolvent, but has assets worth sufficient to pay one-half of his debts’ is entitled to receive $50 from A’s assets and $125 from B.

A, B and C are under a joint promise to pay D $300.A and B being the only sureties for C. C fails to pay. A and B are compelled to pay the whole sum. They are entitled to recover from C.

This Section also lays down three rules:

Any one Compellable to Perform

Firstly, when a joint promise is made, and there is no express agreement to the contrary, the promisee may compel any one or more of the joint promisors to perform the whole promise23, even where one of the promisors has undertaken the liability as a surety.24

Illustration

A, B and C jointly promise to pay D $300. D may compel either A or B or C to pay him $300.

Right of Contribution

Secondly, a joint promisor who has been compelled to make the whole of the promise, may require the other joint promisors to make an

23 Rama Shankar Singh v Shyamlata Devi, AIR 1970 SC 716 24 K Appukuttan Panicker v S Athappa Chettiar AIR 1966 Ker 303

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equal contribution to the performance of the promise, unless a different intention appears from the agreement25.

Illustration

A, B and C are under a joint promise to pay D, $300. D recovers the whole amount from A. A may require B and C to make equal contributions.

This right is independent of the contract entered between the joint promisor and the promisee. Even the promisee doesn’t have the power to absolve any joint promisor from his liability to contribution towards the other joint promisors, who may have not performed the promise. But for a joint promisor to claim contribution, he must have made the payment to the promisee either under compulsion or voluntarily. The fact that the promisor claiming contribution made the contribution without consulting his co–promisor, does affect his right to contribution.26

Default in Contribution and Sharing of Deficiency

Thirdly, joint promisers have to contribute equally, unless a contrary intention is there which may be explicit or implied. It says that if any one of the promisors makes a default in such contribution the remaining joint promisors must bear the deficiency in equal shares. If one of the persons liable to contribute is not in a position to pay his share, then what amount should be divided between the others equally under the section; but it has been held that the amount may be divided in the proportion of the benefit each has received.

Effect of the Release of one Joint Promisor

Briefly taking up Section 44 which states:

‘Where two or more persons have made a joint promise, a release of one such joint promisors by the promise does not discharge the other joint promisor or joint promisors; neither does it free the joint promisors

25 Avtar Singh; Performance of Joint Promises, p. 353, edn. 11th 26 Appna Mahasadasiva Suryanarayana Rao Vs. Palakurthi Rajalingam AIR 1932 Mad 382

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so released from the responsibility to the other joint promisor or joint promisors.’

In the case of Devilal v. Himatram & Ors.27, all defendant parties had taken had jointly taken a contract for construction of a Town Hall of Udaipur as partners even though the contract was sanctioned by the City Corporation of Udaipur in the names of defendants Himmatram and Narottam Swaroop only. Further allegations were that while entering into a subcontract with the plaintiff-appellant Devilal, the defendant Kanaiyalal acted as an agent for the rest of the partners. In the relief cause the plaintiff claimed relief that a decree be passed. The trial court passed the decree but for a less amount than asked and the amount was reduced further by the district judge. The plaintiff Devilal, therefore, filed this second appeal. Himmat Ram died during the pendency of the suit, but the surviving defendants were his partners. The plaintiff has claimed a money decree against all the defendants jointly and severally for the amount which may be found due to the plaintiff from the partnership. In view of section 44 of the contract act, the discharge of one of the promisors from, in this case Himmat Ram due to his death does not imply that the rest of the defendants are also discharged from performing their promise. The appeal was allowed and the suit did not abate.

The principal in this case was that abatement of an appeal against one joint debtor or death of one joint promisor does not release the other joint promisors. In comparison to English the law the principles applied in these sections are different. In English law, joint promisors are all jointly liable to pay the whole debt. If the promisee sues one of the joint promisors, it is at the option of this promisor whether to bring his other co-promisors to the suit or not. Whereas in Indian law, the promisee may sue joint promisors, at his option, jointly or individually. Also the promisor being sued does not have the option of involving his co-promisors in the suit instituted against him. The court may call upon, the other co-promisors if it feels it is required.

27 Devilal v. Himatram & Ors ,AIR 1973 Raj 39

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Devolution of Joint Rights

Section 45 deals with devolution of joint rights which states as

“Devolution of joint rights – When a person has made a promise to two or more persons jointly, then, unless a contrary intention appears from the contract, the right to claim performance rests, as between him and them, with them during their joint lives, and, after the death of any of them, with the representative of such deceased person. Jointly with the survivor or survivors, and, after the death of the last survivor, with the representatives of all jointly.”

In the absence of any contrary intention appearing from the contract the right to claim performance, that is , the right of joint promisees to claim performance is a joint right, and in case of death of any one of them the representatives of the deceased in entitled to the benefit with all survivors. In all cases of joined promises, there is always one promise in favour of all the joined promises. Therefore it is not open to one of the joint promisees to sue either the performance of the promise in its entirety or to the extent of his share.

Illustration

A in consideration of `100000 lent to him by B and C, promises B and C jointly to repay them that sum with interest on a day specified. B dies and thus, the right to claim performance rests with B’s representatives jointly with C during C’s life and after the death of C, with the legal representatives of C and B jointly.

The Supreme Court in Anokhe Lal v. Radhamohan Bansal has held that the principle made out in section 45 applies to situation where one person has made a promise to two or more people jointly. The right to claim performance of the contract arising out of such a promise would then rest with those promisees together with their joined lives and after the death of any one of them, such a right would be passes on the legal regal representatives of the deceased jointly with the surviving promisees. If the joint promisees were partners in a firm, this provision

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obliges the legal representatives of a deceased partner to join the rest in enforcement of the right to have performance of the contract. This is the the gist of Section 45 of the Indian Contract Act, 1872.

Right of Joint Promises

The section departs from the English law in that the right devolves not on the survivors. The section departs from the English law in that the right devolves not on the survivors alone, but on them along with the legal representatives of the deceased promise

This section applies to all joint promisees whether they are partners, co-shares, mortgages, joint lessors or members of a joint Hindu family carrying on business in partnership. In case where the owner of a single right dies, and several persons become entitled to it, it has been held that all of them must join in a suit to enforce the right and if any of them refuses to join the plaintiff, he must be added as a defendant, obviously, joint promises cannot divide the debt among themselves and sue severally for the portions.

Rights to Performance of Promises During Joint Lives

As the right to claim performance of a promise in the case of joint promisees rests with them all during their joined lives, it follows that all the joint promisees should sue upon the promisor. Therefore, if a suit is bought by some of them only, and the other promisees are subsequently added as plaintiffs on objection taken either by the defendant or by the court on its own motion, the whole suit will be dismissed if it is barred by limitation as regards the other promisees who were added subsequently at the time of their joinder.

When any one of the joint promisee dies, the right to enforce the promise vests in the surviving promisees jointly with the legal representatives of the deceased. Hence, an appeal would come to an end on the death of one of the joint promisees, if his legal representatives were not brought on record.

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Co-Heirs of Single Promisee

Section 45 does not indicate what happens to a single right when the owner of it dies, and several persons become entitled to it. On death of the original promise, his heirs do not become themselves several joint promisees. In such a case, it has been held that all of them must join in a suit to enforce the right, and if any of them refuses to join as plaintiff, he must be added as a defendant.28

Conclusion

Discharge of contracts means termination of contracts. Discharge of contract can be performed by various methods. The emphasis was laid down on the discharge of a contract by performance. As we know the general rule of is that a performance must exactly match the requirements laid down in the contract, and this is known as entire performance which is very harsh and rigid in nature. But there are several ways in which this can be mitigated. Also, if a contract is terminated by the parties ‘damages’ are given in the form of compensation or the court enforces specific performance by issuing an injunction. The Indian Contract Act, 1872 is laid down for such conditions. It enforces contracts as well as provide for the remedial damages. Joint Liability is one such concept. Section 42, 43, 44 deal with Joint liability and Section 45 deals with Joint Rights. Even though most of our own codified laws are based on the English Common law, when it comes to Joint Rights and Liabilities, we see a significant shift of principles. Section 42 & 43 of the Indian Contract Act, 1872, deal with contracts when two or more parties are on one side in a contract. It bifurcates all joint promisors’ liability, and makes joint liability joint and several. Also, Section 43 highlights that in case of inability of one of the joint promisors to discharge obligations, the other joint promisors, jointly discharge the liability of the co-promisor unable to perform his obligation While taking up section 44 of the Indian Contract Act, 1872, we can see that the promisee can release any one of the joint promisors from their obligation. In the concept of Joint Rights 28 Ahinsa Bibi v Abdul Kader Sahed (1902) ILR 25 Mad 26

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also we see the changes very evidently. Hence section 42, 43, 44 & 45 are an integral part of the Indian Contract Act, 1872 in case of contracts where there are joint promisors on either side.

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SANCTION UNDER SECTION 197 CrPC:

AN INDISPENSABLE SIN

Isha Sanghi*1

Introduction

It has been the view of many that in order to insure authority of the sovereign, it is very vital to provide some sort of protection or immunity to those in power. The immunity to the sovereign is an exception to the principal of ‘Ubi Jus Ibi Remedium’ i.e. ‘where there is a right, there is a remedy’. In present world, the immunity to the sovereign is ensured by providing immunity to the minions of the state.

One of the oldest laws providing protection to the officers of the State is the ‘Judicial Officers Protection Act’ of 1850.2 The act contains the first systematic enunciation of the ‘good faith’ rule, upon which many immunity laws are based. Later on, in the earliest comprehensive Criminal Procedure Code of 1861, enacted by the British in India, a much more extensive provision was incorporated, providing judges and public servants protection without the prior sanction of the government under which he/she was serving. This is provision is still extant, in substantially the same form in the Code of Criminal procedure now in use (CrPC1973).

The relevant provisions of the section are as follows:-

197. Prosecution of Judges and public servants.

(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-

*Author is a 3rd year B.com L.L.B (Hons) student from Institute of Law, Nirma University. 2 Agrwaal, Ashok. "LAW’S AUTONOMY." (2007): 148-185.

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(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;

(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.

There are essentially two conditions which need to be satisfied for the application of section 197.

(1) The person accused of an offence is/was a public servant.

(2) The accused must be a person removable from his office only with the sanction of the state government or of the central government

(3) The person must be accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties;

(4) At the time of the commission of the alleged offence, the person must be employed in connection with the affairs of the Union or the state, as the case may be.

The Section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, 'no court shall take cognizance of such offence except with the previous sanction'. Use of the words, 'no' and 'shall' make it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence

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is absolute and complete. Very cognizance is barred. That is the complaint cannot be taken notice of.

Validity of Provision

Article 14 of the Indian Constitution doesn’t render Section 197, ultra virus since the discrimination is based upon a rational classification. Public servants have to be protected from harassment in the discharge of official duties, while ordinary citizens not so engaged do not require this safeguard3.

Section 197(1) does not create any arbitrary discrimination; rather, it makes a reasonable differentia. Public servants not removable from their respective offices save by or with the sanction of a State Government or the Central Government, are put in one class and the public servants who are removable from their respective offices even without such sanction are put in another class. The reason for this classification quite evidently is that the public servants who hold answerable positions and who discharge vital functions shall alone be provided certain amount of protection from the harassment consequential from vexatious prosecutions, while those who discharge comparatively trivial functions or hold less responsible positions would not be accorded such protection. Such a classification can in no sense be regarded as arbitrary or unreasonable and the section 197 CrPC is not, therefore, conflicting with article 14 of the Constitution.4

Object and Scope

The main objective of this section is provide a guard against vexatious proceedings against the Judges, Magistrates, public servants, not removable from office except by or with the sanction of the Government, and the members of the Armed Forces without the sanction of the higher authorities. The privilege of immunity from

3 AIR 1956 SC 44 4 AIR 1954 Nag 265.

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prosecution without sanction only extends to acts which can be shown to be in the discharge of official duty.5

In the case of State of Maharashtra v. Budhikota Subbarao (Dr. )6 it was held that the bar created by section 197 is absolute, in the absence of sanction where section 197 applies; the cognizance of the offence is barred. This means that without the sanction no investigation against the public servants is possible.

However, it was feared that such a protection would give immense power to the public servants who could now commit offences in the name of discharge of the official duty and no action could be taken against them without sanction. Also, the sanction to take cognizance against the public servant in question is to be obtained from the senior officials appointing such individual, who being familiar with the accused, rarely issues the sanction. This way the accused escapes with situation easily.

To ensure that such a protection is not misused by the public servants, courts have widely interpreted the scope of this section in various cases. In Binod Kumar Singh v. State of Bihar 7, the High Court discussed the objective of this section. Court said that it is never the spirit of this section to protect every offence committed by the public servant while he was actually in the performance of his official duties. The acts concerned must have a direct connection with his official duties so that if questioned, it could be claimed to have been done by the virtue of the official duties then only sanction would be necessary.

The court, in the case of Shankarrao v. Burjor Engineer 8 , discussed the application of section 197. Court was of the view that the section applies where the act or omission on the part of a public servant complained of is closely and inseparably connected with the duties 5 Pichai Pillai v. Balasundara Mudaly, (1935) 58 Mad 787 ; DIR of Inspection and Audit v. C.L. Subramaniam , 1995 SCC (Cri) 121 (125) 6 1993 SCC (Cri) 901 7 1985, CrLJ 1878, 1882 (Pat). 8 (1961) 64 Bom LR 130

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which such public servants has to perform and such act or omission amounts to an offence.

However, what acts can be said to be closely related in ‘discharge of his official duty’ has been the matter of debate.

Acts under Official Duty

The main issue which arises again and again is the scope that is provided by section 197. The following expression has been extensively debated and decided upon by the Courts:

“While acting or purporting to act in the discharge of his official duty”.

Since not every offence committed by the public servant while acting in the discharge of his official duty is entitled to protection, the question arose as to what are the acts which come under the ambit of section 197 of the CrPC.

The words “acting” or “purporting to act in discharge of official duties” in section 197 are to be construed liberally. Where the facts show that offence was committed by accused while discharging public functions, sanction under section 197 of the CrPC was required. However, there should be some sort of connection between the official function and the alleged offence.9

Where the accused police officials fabricated a false case against the complaint for some ulterior, in the instant case to pressurize the complaint to vacate the house, there is no connection between the official function and the alleged offence, as such for prosecution sanction under S 197 is not necessary. 10

This view of the Rajasthan High Court was backed by the Supreme Court in the case of P P Unnikrishnan Vs Puttiyottil Alikutty 11 . The apex court held that under Section 197 CrPC, no protection has been granted to the public servant if the act complained

9 Raman Lal v. State of Rajasthan, 2001 (1) Raj LW 342 (362) (Raj) 10 Raman Lal v. State of Rajasthan, 2001 (1) Raj LW 342 (362) (Raj) 11 (2000 8 SCC 131)

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of is not in connection with the discharge of his official duty or in excuse of his duty.

In B. Saha and Ors. v. M.S. Kochar 12it was held : "The words 'any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty' employed in Section 197(1) of the Code, are capable of a narrow as well as a wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for, 'it is no part of an official duty to commit an offence, and never can be'. In the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1), an Act constituting an offence, directly and reasonably connected with his official duty will require sanction for prosecution and the said provision."

The sanction under Section 197 is necessary where the accused public servant has committed the impugned act in discharge of his official duty. One safe and sure test can to check whether the neglect or omission on the part of the public servant would have made him answerable for a charge of neglect of his official duty. If the answer to it is affirmative, it may be said that the said act was committed by the public servant while acting in discharge of his official duty and there was every connection with the act complained of and the official act of the public servant.13

To sum up, the protection provided under Section 197 CrPC is not available when official duty is merely a cloak for doing the objectionable act. There must be a direct and reasonable nexus between the offence committed and discharge of the official duty.

12 (1979 (4) SCC 177) 13 Sk. Siraj v. State of Orrisa, 1994 CrLJ 2410, 2418 (Ori)

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Protection to Officials After Retirement

The protection given by this section applies not only to a person who is still a public servant at the time the prosecution is launched, but extends also to a person who is no longer a public servant at that time, but was in office when the offence charged was said to be committed . it is very important to provide protection to the officials even after retirement; reason being that otherwise a private person harboring a grievance against the public official may wait till the time the official retires from his position and then lodge a complaint against him. If the ultimate objective is to see that there are no vexatious proceedings against for the things done in exercise of the official duty then protection should be accorded equally to those who have retired.

In the case of State of Maharashtra v. Budlukote Subbarao (Dr.), 1993 SCC (Cri) 901 Court said that even after the retirement of a Government servant, where a Government servant is prosecuted in respect of act done prior to retirement, sanction under section 197 Cr.P.C. / Section 19 of the Prevention of Corruption Act, 1988 is necessary.

Another question which arose is whether the protection should be provided to those officials who cease to be public servants or not.

This question was addressed by the Court in the case of Bachan Singh v. State of Punjab14. It was held that the sanction to prosecute would still be necessary even when the concerned public servant ceased to be so on the date of taking cognizance. The sanction is necessary when the accused was in government service at the time of commission of the offence, tough he ceased to be so at the time of the trial.

Need for Sanction when to be considered.

In Matajog Dobey v. H.C. Bhari15, it was authoritatively laid down by the Apex Court that it is not always essential that the need for sanction under section 197 is to be considered as soon as the complaint

14 1981 CrLJ 1471 (P&H) 15 MANU/SC/0071/1955

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is lodged and on the allegations therein contained. The question may arise at any stage of the proceedings. The complaint may not disclose that the act constituting the offence was done or purported to be done in the discharge of official duty; but facts subsequently coming to light on a police or judicial inquiry or even in the course of the prosecution evidence at the trial, may establish the necessity for sanction. Whether sanction is necessary or not may have to be determined from stage to stage. The necessity may reveal itself in the course of the progress of the case.16

Essentials of Sanction – Application of Mind

The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the government has an absolute discretion to grant or withhold their sanction. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case, sanctioned the prosecution, and therefore unless the matter can be proves by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority has applies its mind to the facts and circumstances of the case.

Sanction Not Necessary for Bribery:

It has been established by the Privy Council that sanction under Section 197, is not necessary before a public servant could be prosecuted for an offence under Section 161, I.P.C. A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to be within the scope of his official duty17. The test as to the necessity for sanction is whether the public servant, if challenged, can sensibly claim that what he does; he does in virtue of his office. A public servant charged with an offence under Section 120-B read with Section 161, I.P.C., cannot justify his act of receiving bribe as

16 AIR 1956 SC 44. 17 Critical Analysis of The JMM Bribery Case-P.V. Narsimha Rao V. State.

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an act done by him by virtue of the office that he held18. However, it was held by Karnataka High Court that where the investigating officer had called an accused for interrogation and the accused alleged that the investigating officer had demanded money, the act complained of having been done while discharging official duties, this provision will apply.19

Recently this issue came back to limelight when in the case of State Of UP vs. Paras Nath Singh20. The Supreme Court has ruled that a public servant cannot be given the protection of sanction under Section 197 CrPC if he is facing allegations of indulging in criminal offences.

A bench comprising Justices Arijit Pasayat (since retired), D K Jain and Mukundakam Sharma, while allowing the appeal of the state of Uttar Pradesh against the acquittal of an officer, Paras Nath Singh, by the trial court as well as by Allahabad High Court, noted in its 12-page judgment that forgery, criminal conspiracy, cheating and taking gratification cannot form part of official discharge of duty by a public servant. The apex court also noted, ‘It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences’.

Conclusion

Even though on the face of it such a law may appear to be draconian, but its importance in the law system cannot be neglected. Protection to officials from vexatious proceedings is essential otherwise they would not be able to perform their duties convincingly. However, since corruption prevails everywhere in India, it was observed that such a protection to the officials has been misused by them to for own personal benefit. They would often commit crimes in the name of discharge of official duties, and could easily escape due to the blanket protection provided to them in name of section 197 CrPC.

18 AIR 1947 Cal 162, 19 R. Ninge Gowda v. A.N. Gopal, 1999 Cr LJ 884 (Kant). 20 2009 (8 ) SCR 85

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With the changing times, the courts are interpreting the section 197 in a liberal sense in order to ensure that misuse of such a protection does not takes place. Recently the Apex Court in the case of State of U.P. vs. Paras Nath Singh, 21 held that a public servant indulging in criminal activities like bribery, forgery and like cannot be provided protection under this section. Such acts are in no way connected in discharge of their official duties and hence no sanction is required if such activities are committed by any public servant.

To conclude, one can say that even though section 197 CrPC is subjected to misuse by the officials, it cannot be gone away with. If such a section is not provided to the officials, then the authority of the minions of the sovereign would be at stake. This section, therefore, is an indispensable sin for the society.

21 2009 (8 ) SCR 85

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KHAP PANCHAYATS- RETROGRADING AVATAR OF THE MORAL POLICE

Aishwarya Tiwari*

Chintan Nirala**

Introduction

The 21st century has been a witness to superfluous development schemes being applied to the urbanized settlements across the nation. The rule of law touches every facet of human life and governs it efficiently; we can virtually conceive no field where the modern-day government does not interfere. The Directive Principles of State Policy have come a long way in manifesting the concept of Welfare State in the modern times. The majority of our population, that is, the rural India however, still dates back to the medieval times with various antiquated practices and obsolete institutions still in use. The 73rd Amendment, 1992 introduced Panchayats in Part IX of the Constitution, thereby affirming them a constitutional status and bestowing upon them the power to organize themselves into self-governments.1 The Panchayats however, have been authoritative bodies dispensing justice over petty issues by imposing fines and social sanctions upon the transgressors even before the British rule, based on the customs, traditions and usages prevalent in the community. Under the UP Panchayat Act of 1920, for example, the principle function of the Panchayat was to act as a diminutive court so that revenue could be collected by imposing fines as punishment for trivial offences.2

Definition

Khap can be defined as a traditional institution whose activities chiefly pertain to the resolution of disputes. It is an assemblage of villages and hamlets united by geography and demography. While the *&**2nd Year, 4th Semester B.A.LL.B.(HONS.), Faculty of Law, Allahabad University 1 Village Panchayat, Calangute v. The Additional Director of Panchayat-II and others (2012) SCC 550 2 Galanter M, Law and Society in Modern India, In Upendra Baxi (Eds.), 1989 Panchayat Justice: An Indian Experiment in Legal Access, (at p.no. 343-386), (London: Oxford University Press).

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Panchayats cover smaller and less important issues under their jurisdiction, the Khap Panchayats settle differences and dissensions which attract major concern within their area of jurisdiction. Khap Panchayat wields authority over a Khap which comprises same gotra families from several neighbouring villages. Khap Panchayats are rampantly involved in acting as authoritative bodies in the rural North India, primarily in Haryana, western Uttar Pradesh and certain parts of Rajasthan. Love marriages are deemed to be a sinful activity in areas governed by Khap Panchayats. The residents of a Khap are prohibited to marry in their gotra from the same village. The rule tacitly prohibits marriages of people belonging to neighbouring villages as well. This is because the members of a gotra are supposed to share patrilineal descent, owing to which, a marriage within the gotra is considered incestuous. A lot of youngsters have got themselves slayed owing to the draconian rules of the Khap Panchayats that prohibit such marriages.

The origin of Khap Panchayat dates back to the Vedic Age. In its initial stage, they used to protect the people from imminent aggressors and aided in upgrading the societal quotient of their community. The Khap Panchayats were expected to uphold the sanctity of the institution and decide disputes on the basis of justice, fair play and good conscience sans which they did not command respect from the members of the community. The Khap leaders used to pass dictates for prohibiting female foeticide, shunned evil practices like dowry and sati, limited the costs involved in marriages and imposed restrictions on the number of people invited in marriages lest the girl’s family should be burdened with extra expenditure. Khap panchayats, even today, continue to act as a popular way of ensuring justice to the Khap residents as they do not collect any fees for mediation, furnish speedy justice and participate in discussions, which enable peaceful negotiations between the contending parties.

Violence in the name of ‘bhaichara’

Khap Panchayats have an orthodox view towards inter-caste and intra-clan marriages. The youngsters that involve themselves in

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such marriages usually end up getting killed or committing suicide without their volition. These killings take place in the garb of brotherhood and honour. The inherent weakness of the democratic institution of Panchayats have aided all the more in fortifying the influence of Khap Panchayats. Choosing one’s spouse of its own accord is strictly prohibited in the jurisdiction of the Khaps. Youngsters are bid not to marry within their gotra because men and women belonging to the same gotra are considered as siblings. This rule even goes to the extent of denying individuals the right to marry persons from their neighbouring villages. The reason that these wiseacres state to justify these prohibitions is that members of a gotra share patrilineal descent, whereby a marriage within the gotra is considered incestuous.

Notwithstanding the fact that the Supreme Court adjudicated honour killings within the ambit of the ‘rarest of the rare’ cases deserving death penalty3, the diktats of the Khap Panchayats are apparently always discordant with the Supreme Court verdict. One Khap leader, Naresh Tikait transcended all the limits of civil decency and ‘warned’ the Supreme Court not to interfere in matters pertaining to prohibition of intra-clan marriages by the Khaps and said that the Court should not encourage marriages within the same clan. He further added that they have always been opposed to marriages within the same clan and will continue to do so. The Supreme Court as given orders that anyone can marry anybody, but they defy that. “We do not challenge the honourable Supreme Court but they should be careful and not get into this mess,” he said.4

From among the most barbarous acts in Indian criminal history, the infamous Birbhum gang-rape case deserves the foremost mention. In this case, a 20-year-old tribal woman was gang-raped by a total of 13 men in a village in West Bengal on the orders of a Salishi Sabha, the body equivalent to Khap Panchayats in the State. This fiendish diktat

3 Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396 4 Anant Zanane, Marriages within clan cause dishonour killings, Supreme Court should not get into this mess: Khap leader, NDTV, February 19,2014.

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was issued when she was found to be in love with a man of different community and made a bid to elope with him.

A dismal example of the brutalities sustained by a person due to the orders of a sadistic Khap jurisdiction is the case of Ved Pal Moan, wherein he was brutally bludgeoned to death in 2009, in his attempt to free his wife who was held captive by her parents at Singhwal village in Jind district. Ved Pal Moan was escorted by a few policemen and warrant officer from the High Court to the place where his wife was captivated. The Khap orders were carried out right in front of the policemen and the warrant officer, following which Ved Pal was murdered. They could do nothing to avert the violence. The marriage that was being condemned by the Khap was neither intra-gotra, nor within the same village. The code that was invoked by the Khap in this case was that the couple violated the custom of not marrying in the neighbouring village as it forms part of bhaichara (brotherhood). The facts of the case clearly suggest that since couples are selectively targeted, the motive is generally to control sexuality of women to ensure that property remains within the patriarchal caste domain (mainly Jats in Haryana), rather than because of their so-called adherence to customs and traditions.

In another case of Manoj & Babli, Manoj (23) of Karoran village in Kaithal district, Haryana, fell in love with Babli (19) and married her against the wishes of Babli’s family. The Khap Panchayat, under the pretext of branding it a marriage within the same gotra, issued a diktat following which the couple was gruesomely murdered in cold blood.

In yet another case, a Khap Panchayat, in 2004, ordered turn by turn rape of a mother whose 20- year old eloped a girl, in Bhawanipur village of Moradabad, Uttar Pradesh.

Misogynistic Approach

The grievous situation of women calls for immediate attention as it is going downhill day by day. They are routinely intimidated by the male gentry of their villages, and them getting abused, raped and

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murdered is a commonplace happening. Parents are under constant fear of letting their daughters go to schools/colleges and pursue education. Also, since many homes lack in basic latrine facilities, women face problems in seeking places to attend nature’s call in the open. Having met a relative of one of the Bhagana village rape case victims, the authors got to know that rapes on Dalit women is a day-to-day happening. The Khap Panchayats usually consist of individuals belonging to the upper classes, which often adjudicate matters in favour of the members of their classes. Raping Dalit women, with time, has turned into an instrument which young male members of upper classes use to attest their virility. Khap Panchayats do nothing against them and so do the police, as it remain under constant fear of the Khaps. The stigma is generally shifted to the victims and their families. The same happened in the instant Bhagana Rape Case, wherein the 4 dalit rape victims of the case were disgraced at by the villagers and they, along with their family members were later excommunicated from their village by the upper Jat community members by use of threat.5

The regressive institution of the Khap Panchayats has come up with extremely misogynistic diktats from time to time, like wearing a pair of jeans, going for a drive with a male friend or even talking on a mobile phone- behavior which is considered perfectly normal for any young girl just a few miles away from the Khap dominated areas, can attract diabolical punishment here, in the Khap governed areas. Justifying their diktat of prohibiting women from wearing jeans, Khap leaders state that, “So many rapes happening nowadays, girls are teased only because they wear such clothes.”6

Rajinder Singh, vice president of Barah Birohar Khap says, “We believe that a woman should be covered from head to toe in loose-fitting clothes that do not attract the male eye. Our idea of beauty is a woman whose hands alone are visible. Even her eyes should preferably be under

5 As told to the authors by a relative of one of the victims of Bhagana village rape case at Jantar Mantar, New Delhi while he was on protest for the injustice done to his family. 6 Janaki Fernandes, After Khaps, girls in Uttar Pradesh now say no to jeans, Asian Voice, July 28, 2012.

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a veil.” Women in various Khaps below the age of 40 are not allowed to carry mobile phones with themselves. A local Khap leader, Mr. Dhankar says that, “This might seem drastic but we believe that this is the only way to stop honour killings in this region. Intermingling of girls and boys and influence of television has led to this situation. Even if the government will not do anything, we still have a duty to uphold the morals of the society.”7

In another bizarre suggestion issued by the Khap Panchayat of Haryana, it was stated by Sube Singh, a Khap representative that, “Boys and girls should be married by the time they turn 16 years old, so that they do not stray….this will decrease the incidents of rape.” Another Khap member said, “As soon as the children attain puberty, it is natural for them to have sexual desires but when these are not fulfilled, they stray….so there should not be any minimum age bare for marriage.”8

Fleeing away from the Khap territory by the young couples spells doom to their kindred. There was a case in Bijnor, Uttar Pradesh, where a woman was allegedly stripped and beaten up on the orders of the Madhi village Khap, because she aided in the elopement of couples. Somewhat a similar happening took place in Bharatpur, Rajasthan when, following the orders of a Khap, the kin of the boy were assaulted because he eloped with a girl of the same village.

Lately, a Khap in Jhajjar forbade a farmer from giving his daughter some money in return for withdrawing a case that she had filed to get her share of the family’s ancestral land. The reason given was that it would embolden other girls to follow suit.

Another horrifying incident attained nationwide acclaim when a Khap Panchayat in Bokaro allegedly ordered the rape of a 14 year old tribal girl by a married man. The village council gave such orders because the wife of the said man was allegedly misbehaved with by the

7 Chander Suta Dogra, Jeans, mobiles and khap panchayats, The Hindu, October 19, 2013. 8 Press Trust Of India, Khaps say early marriage can curb rape cases, The Hindu, October 8, 2012.

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brother of the girl. The Khap adjudicated that retaliation on behalf of the man for the wrong done to his wife would be to rape the assailant’s sister. The justification of retribution rape given by Khap panchayat is that it is used “as a way of settling scores” because the family’s honour is tied to woman’s ‘purity’. So, if a woman is raped, that honour is lost.

A Khap Panchayat in Haryana recently imposed a ban on late night nuptial ceremonies stating that dancing on the DJ floors and inebriation that follows results in harassment of the females. In another irrational decision, a Khap Panchayat in Haryana has blamed consumption of chowmein behind the growing incidents of rapes stating that it leads to hormonal imbalance. To quote Jitender Chhatar, a president of Jind’s Chhatar village and Thua Khap Panchayat leader, “To my understanding, consumption of fast-food contributes to such incidents. Chowmein leads to hormonal imbalance, invoking an urge to indulge in such acts.”9

Role of Judiciary and Politicians

The government, adhering to its astute vote-bank politics, tacitly gives its approval to these illicit activities. Haryana Chief Minister Bhupinder Singh Hooda perceives Khap Panchayats as ‘NGOs’ and a part of Indian culture."Khap Panchayat is an NGO. It's like if you go to Gurgaon there is a welfare association. Similarly Khap is also an NGO. They are a part of our culture," he said. Somewhat similar is the opinion of the ‘not so common man’ Arvind Kejriwal who speaks of Khap Panchayat as a social instrument that serve a ‘cultural purpose’ to our country. In the process of upholding this anachronistic institution, women are being beaten, stripped, raped, murdered, publicly lynched and humiliated. How does this fill in the cultural gaps of the country? These retrograding strides should only be seen as crafty and cynical ones which politicians take to consolidate and ascertain their position. This only brings abysmal despair and hopelessness to the people of the nation.

9 Manveer Saini, Haryana khap blames consumption of chowmein for rapes, The Times Of India, October 16, 2012.

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Supreme Court on 19th April termed Khap panchayats as ‘kangaroo courts’ and declared them illegal and which need to be ruthlessly weeded out. A bench of justices Markandeya Katju and Gyan Sudha Mishra observed that atrocities with respect to personal lives of people, committed by brutal, feudal minded persons deserve harsh punishment. The apex court said “This is wholly illegal and has to be ruthlessly stamped out. There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of the personal lives of people committed by brutal, feudal-minded persons deserve harsh punishment. Only this way can we stamp out such acts of barbarism and feudal mentality…..” 10 Supreme Court also intervened in the Birbhum rape case where 20-year old woman was raped by 13 men on orders of the Khap panchayat and termed the case ‘disturbing’. On March 2010, a Karnal district court also awarded death sentence to Babli’s brother, uncles and cousins for killing the couple. The leader of the Banwala khap was awarded life sentence for hatching the plot. But at the same time, despite the efforts and reforms brought forward by the Judiciary, the politicians of our country justify their talibani dictates by putting a veil of cultural dictate on them and addressing Khap Panchayats as cultural institutions rooted in the past and give them a new lease of life. What was a dying institution a decade ago has been revived and given some legitimacy by vote bank politics to enable it to emerge in a retrograde avatar.

Conclusion

A cursory glance at the demography of the states patronising Khap Panchayats makes clear how sex ratio therein is plunging to newer depths. Haryana, home to the most number of peremptory Khap Panchayats in the nation, and the state that stands second as regards per capita income in the country, has 821 females for every 1000 male populations in the 0-6 age group. Female foeticide runs unhindered as parents are well aware of the fact that these places have a highly

10 Auruguam Servai v. State of Tamil Nadu, (2011) 6 SCC 405.

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chauvinistic trend, and are not safe for their daughters to thrive and survive. Girls are generally deprived of their education and separate batches run for boys and girls. By raping Dalit women, young Jat men authenticate their machismo and wear the ‘achievement’ as badges pinned on their chest. Khap Panchayats do nothing about the matter; and instead shift the stigma to the victim and her family who are in many cases even ostracised or excommunicated from the community.

Khap Panchayats further create the false impression that all marriages of choice between young couples are incestuous, thereby snatching away from them their basic right to choose a marriage partner. There have been myriad instances where Khaps issued diktats in Jaundhi, Asanda, Hadaudi, and other villages whereby married couples were declared siblings and families had to face boycotts and excommunication from their native villages. Youth population of over a thousand is being done to death annually owing to the diabolical diktats that the imperious setup of Khap Panchayats issue in cases where marriages happen within the gotra, between people of neighbouring villages, or out of choice. In the case of, Bench observed that “there is nothing honorable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal-minded persons who deserve harsh punishment.”11

The bottomline is that these Khap Panchayats seem to keep themselves disparate from the existing rule of law and the Constitution. The instance where they bludgeoned a person to death in the presence of warrant officer and policemen is a clear assertion of their fearlessness and dichotomy with the law of the land.

There should usher in an entirely new series of reforms at the national level which bring an end to the unjustifiable, regressive institution of Khaps. These Panchayats should in no way be deemed of serving a cultural purpose and an instant ban should be imposed to their existence and functioning. People should be taught that 11 Lata Singh v. State of U.P. and Anr. (2006) 5 SCC 475

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there is nothing honourable in killing one’s own children. By placing demands and petitions to make amends in the existing law so as to inhibit women from partaking their ancestral property, the Khaps have shown how incorrigibly misogynistic they are in their approach. In a world of today, where each of the genders is walking hand in hand in every aspect, the flourishing of such retrograding institutions and the dogma they impose needs to be impeded. The country has seen ample blood spilling in the name of brotherhood and honour and is in no way ready to be a witness to more slaughter. The judiciary has already done its job. It is now the responsibility of the administration to give up its peevishness and cattle-like responsiveness and take up the dire situation that is in desperate need of proper attention and law enforcement.

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CHILD LABOUR – THE INDIAN SCENARIO

C.Ganesh Pandian*

Introduction

Child labour deprives children of their childhood, and is harmful to their physical and mental development. Poverty, lack of good schools and growth of informal economy are considered as the important causes of child labour in India. A 2009-2010 nationwide survey found child labour prevalence is about 4.98 million children (or less than 2% of children in 5-14 age group). The child labour problem is not unique to India; worldwide, about 217 million children work, many full-time. In 2001, out of 12.6 million child workers, about 120,000 children in India were in a hazardous job. UNICEF estimates that India with its larger population, has the highest number of labourers in the world under 14 years of age

The problem of child labour continues to pose a challenge before the nation. Government has been taking various pro-active measures to tackle this problem. However, considering the magnitude and extent of the problem and that it is essentially a socio-economic problem inextricably linked to poverty and illiteracy, it requires concerted efforts from all sections of the society to make a dent in the problem.

Definition

The term child labour, suggests ILO1 is best defined as “work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development.” It refers to work that is mentally, physically, socially or morally dangerous and harmful to children, or work whose schedule interferes with their ability to attend regular school, or work that affects in any manner their ability to focus during school or experience a healthy childhood. India's Census 2001 office defines child labor as “participation of a child less than 17 years of age in any * BA., BL, Advocate, Madras High Court, Chennai 1 International Labour Organisation

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economically productive activity with or without compensation, wages or profit.”

Rights of Children under International Law

The Concept of equality of all human beings, as embodied in the Universal Declaration of Human Rights of I948 stipulates under Article 25 para 2 that childhood is entitled to special care and assistance. The above principle along with other principles of the Universal Declaration concerning child were incorporated in the Declaration of the Rights of the Child of 1959.The International Covenant on Civil and Political Rights under Articles 23 and 24 and the International Covenant on Economic, Social and Cultural Rights under Article 10 made provisions for the care of the child. (9) However the International Labour Organization (ILO) provides universal standards and guidelines. The ILO, a specialized agency of the UN, aims to provide guidance and standards for labour practices around the world. The International Convention and other international instruments, (10) which deal with the subject of child labour are as follows:

Convention on the Rights of the Child, 1989.

Worst Form of Child Labour Convention, 1999; and

Worst Form of Child Labour Recommendation

The International Program on the Elimination of Child Labour (IPEC) is a global program launched by the International Labour Organization in December, 1991. India was the first country to join it in 1992 when it signed a Memorandum of Understanding (MOU) with ILO. The MOU that expired on 31.12.1996 has been extended from time to time and has recently been extended till 31st December, 2006. The long-term objective of IPEC is to contribute to the effective abolition of child labour. (11) IPEC-India has, during the period 1992-2002, supported over 165 Action Programs.

The Govt. of India and the US Department of Labour have also initiated a US$ 40 million project aimed at eliminating child labour in 10 hazardous sectors across 21 districts in five States namely,

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Maharashtra, Madhya Pradesh, Tamil Nadu, Uttar Pradesh and NCT of Delhi. This project, popularly known as INDUS, is being implemented by ILO. An estimated 80,000 children will be withdrawn and rehabilitated through this project. Support activities will also be directed to 10,000 families of former child workers. (12) On 20 November 2009, the global community celebrates the 20th anniversary of the adoption by the United Nations General Assembly of the Convention on the Rights of the Child, the unique document that sets international standards for the care, treatment and protection of all individuals below age 18.

Rights of Children under National Laws

India has all along followed a proactive policy in the matter of tackling the problem of child labour. India has always stood for constitutional, statutory and development measures required eliminating child labour. The Indian Constitution has consciously incorporated provisions to secure compulsory universal elementary education as well as labour protection for children. Labour Commissions in India have gone into the problems of child labour and have made extensive recommendations. The Constitution of India, too provides certain rights to children and prohibits child labour. Such provisions are as follows:

No child below the age of 14 years shall be employed in any factory or mine or engaged in any other hazardous work.

State, in particular, shall direct its policy towards securing that the health and strength of workers, men and women and the tender age of the children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength.

Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitations and against moral and material abandon.

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The state shall endeavor to provide, within the period of 10 years from the commencement of the Constitution, free and compulsory education for all children until they complete the age of 14 years.

The state shall provide free and compulsory education to all children between the ages of six to 14 years in such a manner as the state may by law determine.

Who is parent or guardian to provide opportunities for education to his child or the case may be, ward between the age of six and14years.

There are a wide range of laws, which guarantee to a substantial extent the rights and entitlement as provided in the constitution and in the UN convention. Some of them are given below:

The Apprentices Act, 1861

The Child Labour Act, 1986

The Child Marriage Restraint Act, 1929

The Children (pledging of labour) Act, 1929

Children Act, 1960.

The Guardian and Wards Act, 1890

The Hindu Minority and Guardianship Act, 1956

The Hindu Adoption and Maintence Act, 1956

The Immoral Traffic (Prevention) Act, 1956

Juvenile Justice Act, 1986

The Orphanages and other charitable Homes (supervision and control) Act, 1960

Probation of offenders Act, 1958

Reformatory schools Act, 1857

The women’s and children’s institutions (licensing) Act, 1956

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The young persons (Harmful publications) Act, 1956

Apart from these laws mainly concerning children, there are a host of related welfare and criminal laws, which have beneficial provisions for the case, and protection of children. Even the laws relating to commerce, industry and trade have protective provisions beneficial to children.

Role of UNICEF

UNICEF uses the Article 32 of the Convention on Rights of the Child (CRC) ,which articulates child labour as “any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, spiritual, moral or social development”, as the foundation of its work in India. In line with this framework, UNICEF India, in partnership with central and state governments, as well as with NGOs and other key groups, is implementing initiatives aimed to build a protective environment in which children can live and develop according to their fundamental rights. Translated into action, this approach led to a programme whose main scope is the progressive elimination of ALL forms of child labour to comply with Article 32 of the CRC ratified by India in December, 1992. UNICEF hopes the World Day Against Child Labour (WDACL), which is observed worldwide on or around 12 June each year, serves as a catalyst for the growing worldwide movement against child labour.

The Government of India/UNICEF partnership on the issue of child labour is shaped around the following main objectives:

Promoting children basic right to education. Core to UNICEF programme, is the emphasis on children’s entitlement, access and retention in education as major strategy to eliminate, but most importantly to prevent child labour. Initiatives include mass enrolment campaigns, support to transitional education programmes (bridge schools), community based sensitisation programmes, education quality package for formal education, as

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well as initiatives aimed to facilitate and strengthen strategic convergence among key institutional stakeholders.

Capacity building of marginalised communities towards the elimination of child labour and towards the protection/promotion of child rights. In order to address the vicious circle of poverty as a major factor surrounding child labour, as well as based on a vision of women as key catalysts for change, UNICEF India is supporting the establishment of women self help groups (SHGs) in various project areas of the country. Other initiatives to empower communities towards the protection and promotion of children rights include village planning exercises, the establishing of community level anti-child labour watching committees, as well as the regular sensitisation and support to local systems such as the Panchayati Raj (village council) institutions.

Advocacy and social mobilisation against child labour Addressing existing attitudes towards child labour and facilitate people’s behavioural change towards a more protective environment for children are core components of the present GoI-UNICEF joint child labour intervention. This is addressed in the field through community-centered social mobilisation initiatives, implemented in collaboration with local authorities, non-government organizations (NGOs), community-based organizations (CBOs) and by a number of local motivators operating at village level. Building on field level experiences, at central level UNICEF is also developing a National Communication strategy against child labour.

Role of Judiciary

Indian higher judiciary has played good role in protecting rights of children and specifically in the case of child labour. The Supreme Court of India, in its M.C. Mehta Vs State of Tamil Nadu2 has given

2 AIR 1991 S.C. 417

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certain directions regarding the manner in which children working in the hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved. Withdrawal of children working in hazardous industries and ensuring their education in appropriate institutions; Contribution of Rs.20,000 per child to be paid by the offending employers of children to a welfare fund to be established for this purpose; Employment to one adult member of the family of the child so withdrawn from work, and if that is not possible a contribution of Rs.5000 to the welfare fund to be made by the State Government; Financial assistance to the families of the children so withdrawn to be paid out of the interest earnings on the corpus of Rs.20,,000/25,000.00 deposited in the welfare fund as long as the child is actually sent to the schools; Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured.

The entire expenditure on education is to be borne by the concerned employer; as a follow up of the directions of the Supreme Court, all the State Governments were sent detailed guidelines on December 26, 1996 indicating the manner in which the directions of the Supreme Court were to be implemented. A meeting of the NAECL was convened on 31st December 1996 to discuss the directions of the Supreme Court on child labour. It was decided in the meeting that the Ministry of Labour should immediately release funds to the State Governments so as to enable them to conduct surveys of working children before June 10, 1997. With child labour are filled with a high poverty level. These children have no choice but to go and work because if they don’t they will starve and die. Child labour for these children is survival; there are no other chances for them. None of these children have the privilege of going to school and being able to go to a house at the end of a day. Most of these children work from the crack of dawn and don’t stop working till late into the night. Child labour in India is a human right issue for the whole world. It is a serious and extensive

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problem, with many children under the age of fourteen working in carpet making factories, glass blowing units and making fireworks with bare little hands.

According to the statistics given by Indian government there are 20 million child labourers in the country, while other agencies claim that it is 50 million. According to the statistics given by ILO and other official agencies 73 million children between 10 to 14 years of age reemployed in economic activities all over the world. The figure translates into 13.2 of all children between 10to14 being subjected to child labour. The child labour is prevalent at a large scale in the country. In Punjab it is found in hotels, restaurant, tea-stalls, rag collecting as domestic help in brick killen etc. for which the authorities, parents, educationist, police and employers or responsible. There is lack of implementations of child laws .Since politicians and other authorities exert pressure not to prosecute the child law violators. There are instances of bounded child labour are found in Punjab but the authorities ignore it and the various departments for the implementation of labour laws either lack funds or lack will to prosecute the child law defaulters and the laws remain merely on the paper for which the lack of control of population and increasing unemployment or the major causes and the politicians fear to tackle these problems in view of their vote banks.

Conclusion

Laws would become enforceable only when political parties intervene at the grassroots to transform traditional socio-economic formations. The government, together with the political class, should do much more than simply ban child labour. Its failure to monitor, and rehabilitate children working in sectors where the ban is already in force does not inspire much confidence. The Indian political-legislative process would become truly acceptable to all only when it manages to effect a convergence between local needs, and universally-desired, and legally-ordained rights. The recent ban does make the child's right not to work justiciable. That could facilitate a new politics for social

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development. At present, inspite of policy of the government regarding removal of child labour. The various steps taken in this direction and the laws passed about it haven’t controlled the ongoing child labour. This is possible only with the co-operation of all sections of the society and the law enforcement agencies and by removing or minimizing the causes of child labour. The main thrust should be on controlling the population of the country, education of the children and providing sufficient funds for its removal from the gross domestic product of India.

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COMPARATIVE ADVERTISING: A COMPARATIVE STUDY BETWEEN INDIA AND U.S.

Sagar A. Gurusahni*

Introduction

In words of Leo Burnett-“Good advertising does not just circulate information. It penetrates the public mind with desires and belief.” And this is what an advertisement does, it not only sells a product, it makes the product a part of one’s life which is necessary and without which a person cannot live life happily.

Comparative Advertising can be defined as advertising that compares one product or service with another or that states that one product works with or is compatible with another.1This comparison is made with a view towards increasing the sales of the advertiser, either by suggesting that the advertiser’s product is of the same or a better quality to that of the compared product. The aim of such advertisement is to allow honest comparison of one’s products with those of competitors and making it known to consumers. It not only promotes market transparency, but also helps in keeping prices down and improving products by stimulating competition.

Although, comparative advertisement has not been defined in the Indian statute, the UK Regulations define it as an advertisement which “explicitly or by implication, identifies a competitor or goods or services offered by a competitor.”2

In simple words; comparative advertising is a form of advertising in which two or more brands of same generic products are compared in terms of one or more products or attributes. It compares the product or services of one company with that of other or with those of competitors.

*4th Year Student, Institute of Law, Nirma University, Ahmedabad 1 Deborah E. Bouchoux, Intellectual Property: The Law Of Trademarks, Copyrights, Patents And Trade Secrets,(West Legal Studies, 2000) (368). 2 http://ssrn.com/1896367

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Comparative Advertising is permitted if it complies with the following conditions

It should not be misleading

It should compare goods or services meeting the same needs or intended for the same purpose.

It should objectively compares one or more material, relevant, verifiable and representative features of those goods or services, which may include price

It should not create confusion in the market place between the advertiser and a competitor

It should not discredit or denigrate the trademarks, trade names or other distinguishing signs of a competitor;

For products with designation of origin, it should relate to products with the same designation;

It should not take unfair advantage of the trade mark or other distinguishing sign of a competitor;

It should not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.

Statutory provisions governing Comparative Advertising

The provision on comparative advertising and product disparagement with respect to trademarks is given in sections 29(8) and 30(1) of the Trade Marks Act, 1999.

According to The Monopolies and Restrictive Trade Practices, 1984 and the Trade Marks Act, 1999, Comparative Advertising is permissible, with certain limitations with respect to unfair trade practices.

The Trade Marks Act provides that a registered trademark is infringed by any advertising of that trade mark if such advertising takes unfair advantage and is contrary to honest practices in industrial

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or commercial matters, is detrimental to its distinctive character, or is against the reputation of the trade mark.3 Section 30(1) of the same act provides an exception to the above rule stating that such advertisement would not amount to infringement if the use of such mark falls within purview of honest practices. This implies that honest practices are mandatory for comparative advertising without which it would amount to trademark infringement.

The Law Relating To Comparative Advertisement In India

In Reckitt Benckiser v. Hindustan Lever4, the court noted that Sections 29(8) and 30(1) of the Trademarks Act 1999 address the issue of comparative advertising and product disparagement with respect to trademarks. Justice Badar Durrez Ahmed in numerated the following legal requirements that must be met to establish commercial disparagement in cases of comparative advertising:

A link between the product shown in the advertisement and the plaintiff’s product In determining whether such a link exists, the Courts must adopt the test of “an average person of imperfect recollection”, who must be picked from the target group of users of the product sought to be slandered or disparaged.

A tradesman is entitled to declare that his goods are the best in the world; and that they are better than his competitor’s goods – even if such declarations are untrue. In doing so, however, he may not say that the competitor’s goods are bad.

The intent and the manner in which the defendant’s goods are advertised are relevant. Merely puffing one’s goods is not actionable, unless this results in slander of the plaintiff’s goods.

Similar decision was given by the court in case of Hindustan Lever Limited v Colgate Palmolive (I) Limited5 and Pepsi Co Inc v Hindustan Coca Cola Ltd6, where both Colgate and Hindustan

3 As per sec 29(8) of Trademark Act, 1999 4 2008 (38) PTC139 5 AIR 1998 SC 526 6 2003 (27) PTC 305 (Del)(DB).

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Coca Cola Ltd liable for disparaging their competitors’ products, respectively. Even though in both advertisements the competitor’s product name could not be heard but could clearly be made out from lip movement. Such a method of circumventing the law was held to fall clearly within the ambit of disparagement. The courts further stated that any claims made in comparative advertisements must be backed by verifiable statistical data.

In case of Colgate-Palmolive (India) Limited vs. Anchor Health & Beauty Care Private Ltd7, the Madras High Court for the first time looked at the comparative advertising claims taking into account, The principles of “unfair trade practice” and the Consumer Protection Act, indicating that a Comparative advertising claim involves not just the rights of the two parties but also the interests of the consumers.

Judicial Pronouncements

1. In Palmolive (India) Limited v Vicco Laboratories, 8 in a television advertisement promoting Vicco tooth powder, another tin, of oval shape and without any label is shown. White powder coming out from the tin was described as useless. Colgate claimed before the MRTP Commission that this was disparaging its product Colgate toothpowder. The Commission found that the shape and color combination of the tin shown in the television commercial resembled Colgate’s tooth powder tin. The commission noted that the advertisement did not explicitly mention “Colgate”. In fact, there may even have been no intention of depicting the tin to be of Colgate. But since the advertisement created an impression in the viewers that the tin was of Colgate, it would be a case of disparagement.

2. In Godrej Sara Lee v. Reckitt Benckiser (I) Ltd.9 held that the defendant provided a better and more convenient solution by giving two-in-one product. Telling the consumer that he could use one single

7 2009 (40) PTC 653 (Mad.) 8 1997 (5) CTJ 488 9 2006 (32) PTC 307 (Del.)

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product to kill two different species of insects without undermining the plaintiff's products by any stretch of imagination amounted to disparaging the product of the plaintiff.

3. In Dabur India v. Colortek Meghalaya10, it was the case of the Appellant Dabur that its mosquito repellent brand “Odomos” was disparaged by an ad of the respondent Colortek which owned the rival brand “Good Knight”. The Division Bench of the Delhi High Court affirmed the Single Judge‟s decision that there was no disparagement of Odomos in the impugned ad. Consequently, no injunction was granted against the respondent Colortek.

4. In Rin v. Tide11, an advertisement showing a boy stepping out of the bus first and his shirt is a dull shade of white. A second boy alights and his shirt is an immaculate white. He moves towards a woman who uses Rin. First boy asks another woman “Aunty Kyun Chaunk Gai? ” with the obvious reference to Tide’s caption “Chaunk Gaye!”. Tide filled a case in court and obtained a temporary injunction in restraining the advertisement to be shown on television. The final decision is still pending.

POSITION IN USA

In the United States comparative advertising has been a well-recognized and acceptable form of advertising. The Federal Trade Commission has supported the use of brand comparisons where the bases of comparison are clearly identified. Comparative advertising, when truthful and non deceptive, is a source of important information to consumers and assists them in making rational purchase decisions. Comparative advertising encourages product improvement and innovation, and can lead to lower prices in the marketplace."12

On the other hand, initially the European countries were hostile to the idea of comparative advertisement but after the EC legislation,

10 February 2010 11 The case is pending before Madras High Court. 12 Statement of Policy Regarding Comparative Advertising, Federal Trade Commission, Washington, D.C., August 13, 1979

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comparative advertisement was accepted as a legitimate means of providing product information to the consumers. The European Directive on Comparative Advertising11 is intended to promote "fair" comparative advertising between competitors. "Fair" comparative advertisements must not mislead or confuse the consumer and must not denigrate or discredit a competitor's trade mark. It must not hold out goods and services as imitations of the goods or services of the trade mark owner. And neither should it take unfair advantage of the goodwill or reputation in that trade mark.

Therefore, by comparing the laws relating to India, USA and EU, it is clear that use of trade mark in comparative advertisement is legitimate as long as the emphasis is on promoting the product based on the differences and not the similarities between the two products.

Further, the advertisement should inform and not mislead the consumer.

Today, the authorization of comparative advertising appears to be the rule rather than the exception and has important corollaries in the United States and in India. However, the two countries have set out identical limits on the use of this advertising tool by prohibiting the use of false and confusing claims.

The Rule: The Authorization of Comparative Advertising

In the United States, maximizing consumer welfare and promoting a free and competitive economy have been the guiding objective and "the keystone of governmental attitude towards the business scene" for more than 100 years.13 Thus, the use of comparative advertising has rapidly become a primary goal of judicial and legislative authorities, as well as administrative agencies, in the area of advertising law. U.S. courts recognized the legality of truthful comparative advertising more than thirty years ago. However, until the late 1960's, comparative advertising was often limited by industry self-

13 U.S courts regularly declare that consumer welfare is the guiding objective in the competition law area.

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regulatory codes. Indeed, general feeling in the advertising industry that naming one's competitor would only give him free publicity, and might even evoke sympathy for him., 14 Competitors were therefore referred to as "brand X' or the "leading brand.

Pizza Hut, Inc. v. Papa John's International, Inc. offers a relevant example of what U.S. law considers non-actionable puffery that i.e. public praise. 15 Papa John's ran a series of comparative advertisements specifically referring to Pizza Hut and containing the slogan "Better Ingredients. Better Pizza." The U.S Court determined that the slogan "epitomizes the exaggerated advertising, blustering, and boasting by a manufacturer upon which no consumer would reasonably rely" and declared that "it is difficult to think of any product or any component of any product, to which the term 'better', is proven.,16 Such a claim would undoubtedly be prohibited by Indian courts as general and subjective.

Overall, the U.S. comparative advertising legal regime is less restrictive and does a better job than the Indian one in preserving the policy objectives of consumer welfare and free competition. Although both countries authorize truthful and non-confusing comparative advertising, Indian law places additional heavy restrictions on the use of this marketing tool. Yet, the prohibition of false and confusing claims seems sufficient to prevent abuses.

This contrast results from different consumer standards and trademark values in each country. The great weight accorded to trademark values other than the source identification function and the use of the credulous consumer standard under French law undoubtedly favor the interest of the individual competitor advertised against to the detriment of competition in the marketplace. This is rather surprising,

14 David I.C. Thomson, problems of proof in false comparative product advertising: how gullible is the consumer?72 trademark rep. 385, 386 (1982). 15 227 F.3d 489 (5th Cir. 2000). 16 Id. at 498-99. However, the court held that advertisements using the "Better ingredients. Better pizza" slogan and comparing the ingredients used by Papa John's to those used by Pizza Hut constituted actionable factually-based claims.

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given that competitors facing comparative advertisements are far from being defenseless, as they usually are the ones with the strongest market positions. In practice, they have the incentives and necessary resources to retaliate with their own advertising campaigns and answer their rival's comparative claim.17 Therefore, the negative consequences of the "over-protection" of competitors referred to in comparative advertisements, namely the impairments to consumer welfare and free competition, outweigh its benefits-the established competitor welfare. The rigidity of the French regime is also questionable in that it generally deters advertisers from using any kind of comparative advertisement, especially since competitors rarely miss the opportunity to bring suit against rivals to stop or prevent the relevant advertising campaign. Moreover, an efficient comparative advertising legal regime could play a small, yet positive, role in spurring consumer consumption in order to drive the economic recovery of India and other European Union Member States.

Conclusion and Suggestions

Consumer welfare is the by- product of market competition. With an aim to have a larger consumer base many companies make use of the power of advertisement as business strategy to maintain, enhance and develop brand equity.

Many of them enter into comparative advertisement using the design trademark of their rival’s product. Even though comparative advertisement is legal in India, care must be taken while using the trademark of others. Advertisement involving the use of competitor’s trademark should emphasize on promoting the product based on difference and not on similarities between the two products. Comparative advertisement is allowed as long as while comparing the goods the trader does not belittle the products of his competitor. Since the main focus of advertisement is to attract the consumers to a particular product, care must be taken as to what information it provides. If done in a fair manner these advertisements helps the 17 http://www.escp-eap.net/conferences/marketing/

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consumer to make an informed and efficient choice. The aim of comparison should be for consumer welfare and not to befool them.

Therefore comparative advertising should be used to promote a company’s own good will and benefit to its own product advantage and not to derogate or drawback competitors good or service so as to damage them economically.

Suggestions

It is important to keep the following guidelines in mind while engaging in the activity:18

1. A comparison should be made based on verifiable facts about the advertisers’ and the competitors’ products/services, which can be substantiated.

2. If a comparison is based on clinical tests results there should be sufficient proof that they were conducted by an independent/objective body. Partial results or differences should not be shown in the advertisements because consumers may draw improper conclusions from them.

3. Always accurately depict the competitor’s mark with appropriate trade mark symbols/notices and add a footnote identifying the correct owner and disclaiming any affiliation. A competitor’s mark should not be altered in any form.

4. Avoid using a rival mark in a highlighted or prominent fashion that implies an affiliation with or sponsorship by the competitor of your advertisement.

5. Keep the primary goal of your advertisement limited to inform the consumer and not to unfairly attack, criticize, or discredit other products, advertisers or advertisements directly or by implication.

18 Dhadak and Mittal, supra note 43.

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6. The product or services being compared should reflect their value and usefulness to the consumer. The comparative advertisement should be informative and convey positive merits of the product/service.

7. The advertisement should not make unjustifiable use of any firm, company or institution and should not take unfair advantage of the goodwill of any trade name or symbol of another firm.

If guidelines along these lines are followed by the product marketers, it allows for the fostering of a better corporate environment to invest in. It is of utmost importance for both companies and the judiciary to work in tandem to restore the parity in comparative advertising whereby fair trade practices; intellectual property protection and consumer interest can go hand in hand.

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INDEPENDENCE OF JUDICIARY FROM MEDIA

Ebbani Aggarwal*1

Introduction

India is the world’s largest democracy. The Constitution of India that came into force on 26th January, 1950 provides for a democratic set up of the Government. Under the democratic set up of the Government, the people who form the part of the Government are elected and chosen by the citizens of that country for a certain period of time. The Government in a democratic setup is often regarded as ‘a government by the people, for the people and from the people.’ The people in power are answerable to the citizens who bought them into power for their policies.

Under the Democratic set up, the Government is divided into the following THREE organs who perform specific functions. The following are the THREE primary organs through which a democratic set up functions:

1. LEGISLATURE, i.e., the one who MAKES LAWS.

2. EXECUTIVE, i.e., the one who ENFORCES the laws made by the Legislature.

3. JUDICIARY, i.e., the one who applies laws to specific cases arising out of breach of these laws.

French philosopher, Montesquieu, in his book ‘The Spirit of Laws’ in 1848 gave the ‘Doctrine of Separation of Powers’ in order to give effect to the Democratic form of Government. The doctrine purports the following:

1. THAT one organ of the Government should not perform the functions of the other organ.

*III Year, B.A. LL.B. (H), Amity Law School, Delhi (Affiliated to GGSIP University) Mobile No.: 9811442033

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2. THAT one organ should not interfere in the functioning of the other organ.

3. THAT one person should not form a part of more than one organ of the Government.

In India, the Government functions through the above-mentioned primary organs. Under the Indian Constitution, these three organs, i.e., the Legislature, the Executive and the Judiciary, have been given the required autonomy and independence in order to discharge their specific functions effectively and efficiently. The Doctrine of Separation of Powers has been recognised in our Constitution, though not in its absolute sense. We follow what can be termed as ‘Separation of Functions’ rather than ‘Separation of Powers.’

It is expected that even though these organs are independent from each other, they will not exceed their jurisdiction and would work together for the welfare and benefit of the country and its citizens.

In order to ensure the above, along with Separation of Powers/Functions, we have a system of CHECKS AND BALANCES so that none of the organ becomes absolutely autonomous and turn the democratic set up of the government into an anarchy.

Under the system of checks and balances, the one organ of the government is answerable to the other two organs collectively.

In modern democracies, MEDIA also acts as a check on the exercise of powers and discharge of functions by the government. Today, media is often regarded as the ‘fourth pillar of democracy.’

The media exercises this check on the organs of the government by the way of certain rights conferred upon it by the Article 19 of the Indian Constitution.

Article 19 of the Indian Constitution

Article 19 has been provided for under Part-III of our Constitution. Part-III provides for the Fundamental Rights of the

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citizens. This part is often regarded as the magna carta of the Indian Constitution.

Under Article 19, SIX FUNDAMENTAL FREEDOMS that are provided to the citizens has been recognised. The six fundamental freedoms that have been recognised are:

1. A.19(1)(a) : Freedom of speech and expression

2. A.19(1)(b) : Freedom to assemble peacefully without arms

3. A.19(1)(c) : Freedom to form associations

4. A.19(1)(d) : Freedom to movement

5. A.19(1)(d) : Freedom to reside and settle in any part of the territory India

6. A.19(1)(f) : Freedom to trade and profession

The above-mentioned fundamental freedoms are NOT ABSOLUTE freedoms and are subject to the restrictions mentioned under sub-clause (2)-(6) of the said Article itself.

Freedom of Speech and Expression

Freedom of Speech and Expression means the right to express one’s own convictions and opinions freely by words of mouth, writing, pictures or any other mode.2

It thus includes the expression of one’s ideas through any communicable medium or visible representation, such as gestures, signs and the like.3

This freedom does not only includes the freedom to express freely only one’s own ideas, it also includes the freedom to express freely other people’s ideas and opinions as well.

2 Dr. J.N. Pandey, Constitutional Law of India 190 (Central Law Agency, Allahabad, 50th edn., 2013) 3 Lowell vs. Griffin (1939) 303 US 444

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Hence, the Freedom of Speech and Expression of Media is recognised under this fundamental freedom. The same can also be concluded via the following excerpt from some judgements:

1. “Free propagation of ideas is the necessary objective and this may be done on the platform or through the press. The freedom of propagation of ideas is secured by freedom of circulation. Liberty of circulation is essential to that freedom as the liberty of publication. Indeed, without circulation the publication would be of little value.”4

2. “The Freedom of Speech and Expression includes liberty to propagate not one’s view only. It also includes the right to propagate or publish the views of other people. Otherwise, this freedom would not include the freedom of press.”5

The Supreme Court has considerably widened the scope and extent of right to freedom and expression in the excerpt the following judgement:

“The Government has NO MONOPLOY on electronic media and a citizen has under A.19 (1) (a), a right to telecast and broadcast to the viewer’s/listeners through electronic media TV and radio any important event.”6

Freedom of Press

The fundamental right of freedom of press implicit in the right to freedom of speech and expression, is essential for political liberty and proper functioning of democracy.7

The Indian Press Commission has expressed a view that:

“Democracy can thrive not only under the vigilant eye of its legislature, but also under the care and guidance of public opinion and

4 Romesh Thapper vs. State of Madras (AIR 1950 SC 124) 5 Srinivas vs. State if Madras (AIR 1931 Mad. 70) 6 Secretary, Ministry of I&B vs. Cricket Association of Bengal (1995) 2 SCC 161 7 Dr. J.N. Pandey, Constitutional Law of India 201 (Central Law Agency, Allahabad, 50th edn., 2013)

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the press is par excellence, the vehicle through which opinion can articulate.”8

Unlike the American Constitution, A.19 (1) (a) of the Indian Constitution does not expressly mentions the liberty of press but it has been held that liberty of press is included in the freedom of speech and expression.9

In the following excerpt from a judgment the Supreme Court observed:

“The expression “Freedom of Press” has not been used in Article 19 but it is comprehended within A.19 (1) (a). The expression means freedom from interference from authority which would have effect of interference with the content and circulation of newspapers. There cannot be any interference with that freedom in the name of public interest. The purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgements. Freedom of Press is the heart of social and political intercourse. It is the primary duty of the courts to uphold the freedom of press and invalidate all laws or administrative actions which interfere with it contrary to the constitutional mandate.”10

This Freedom of Speech and Expression is NOT an absolute freedom. It is subject to certain REASONABLE RESTRICTIONS mentioned under sub-clause (2) of Article 19 itself. The reasonable restrictions mentioned under sub-clause (2) are:

1. Security of the State

2. Friendly relations with foreign States

3. Public Order

4. Morality

5. Contempt of Court 8 Dr. J.N. Pandey, Constitutional Law of India 201 (Central Law Agency, Allahabad, 50th edn., 2013) 9 Dr. J.N. Pandey, Constitutional Law of India 201 (Central Law Agency, Allahabad, 50th edn., 2013) 10 Indian Express Newspaper vs. Union of India (1985) 1 SCC 641

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6. Defamation

7. Incitement of an offence

8. Sovereignty and integrity of India

Independence of Judiciary

Every modern democracy is based on the common law principle of RULE OF LAW. The expression ‘Rule of Law’ was first coined by Sir Edward Coke which was further elaborated by A.V. Dicey.

Rule of Law, literally, means SUPREMACY OF LAW. No individual is above law. All the citizens are subject to same laws and to the jurisdiction of the ordinary courts, irrespective, of their status or position.

Rule of Law emphasises on the rule of a highly evolved law which is neither arbitrary nor discriminatory. It does not emphasise on a rule by any ordinary law which can be arbitrary or discriminatory.

A.V. Dicey gave the following precepts of Rule of Law:

1. Supremacy of Law

2. Equality before Law

3. Constitution is the result of the ordinary laws of the land

The first two precepts given by Dicey are applicable in India but the last one is not applicable as in India it is from the Constitution that all other laws are essentially derived. Constitution is the supreme law of the land in India. All the other laws have to be in conformity with the provisions of the Constitution.

In order to provide for Rule of Law it is important that the authority adjudicating the various disputes is free and independent from influence of other authorities or from any kind of political pressures while adjudicating the various disputes.

Article 50 of the Indian Constitution provides for the independence of judiciary. The said Article reads as follows:

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“50. Separation of judiciary from executive- The State shall take steps to separate the judiciary from the executive in the public services of the State.”

Our Constitution provides for the Independence of Judiciary from the Executive as well as Judiciary but it does not provide for the safeguards from independence of judiciary from the fourth pillar of democracy that is soon gaining power, i.e., MEDIA.

Hence, the question that arises is whether judiciary is independent from the pressure and effect of media reporting?

Effect of Media Reporting on Judicial Trial

When a sensational case comes to be tried before the court, public curiosity experiences an upsurge. Newspaper, electronic media – most of them compete with each other, in publishing their version of facts.11

The number of newspapers and news TV channels has increased so much that there is cut throat competition amongst them. In order to increase their TRP, they tend to sensationalise every minute detail or fact pertaining to a case being tried in the court. At times, they tend to emphasise on immaterial facts which deviates the public opinion from the material aspects. They make every step of the Judges and other members of Judiciary subject to public scrutiny without any knowledge about the substantial and procedural aspects of the laws which tends to formulation of a completely wrong public opinion about the Judiciary.

In a way, news channels and media houses are suffering from what can be termed as BREAKING NEWS SYNDROME which leads to irresponsible reporting of cases by the media houses.

The reporting of cases by the media houses is done with the sole objective of maximising their TRP and hence, they tend to lack highly on the ethics of reporting for the benefit of the public. It is not done

11 P.M. Bakshi, The Constitution of India 51 (Universal Law Publishing Co. Pvt. Ltd, Delhi, 12th edn., 2012)

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with the object of making the people aware of the various happenings in the country, which is the basic reason behind media trials of the pending cases.

Media houses hold discussions cum debates with a view of discussing about the case and getting the opinion of the so-called experts on a particular case but these discussions often turn into court like proceedings and at times, they give their judgment on that particular case.

The best example of the above is the Times Now News Hour debate anchored by Mr. Arnab Goswani. He, in order, to get the maximum aspects about the issue or case being discussed defames people and at times puts words in their mouth. Many a times while concluding the debate he gives his judgment on that particular case that influences the public opinion thus formed.

The result of the above is that the accused who is presumed to be innocent in the eyes of law until proven guilty is tagged as guilty. The accused is denied his Fundamental Right to free and fair trial which is guaranteed under the realm of Article 21 of the Constitution. Article 21 guarantees the ‘Right to Life’ to every citizen of India.

The same can be deduced from looking into the case of Afzal Guru and S.A.R. Geelani, the accused in December 2001 attack on Parliament.

S.A.R. Geelani’s Case: S.A.R. Geelani was declared or tagged as guilty by the media before the case he was convicted by the court of a law but later on he was convicted in the matter by the courts. The EFFECT of media tagging Geelani as guilty before being convicted is still affecting his present life. A SOCIAL STIGMA has been attached to his name and this would continue to haunt him throughout his life and his family for many generations to come.

Afzal Guru’s Case: Afzal Guru, the one who was convicted and hanged for the attack on the Indian Parliament was convicted on the basis of his media confession made by him under the custody of police.

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It is important to note that Afzal did not even once confess to the charges made out against him the Court of the law. This media confession, even if the Judges don’t seem to agree, clouded the minds of not only the Judges adjudicating the case but also of the general public.

For further insight into the case of Afzal Guru and S.AR. Geelani, a book titled ‘The Hanging of Afzal Guru’ must be referred to. The following excerpt from the book indicates to fabrication of news items by the Police and the media houses:

“It is interesting to speculate how some stories made their way into the media and how some stories remained virtually ‘out of bounds’ even if they made their appearance sometimes in court documents. It is also interesting to consider whether this pattern of omission or fabrication pointed to collaborative authorship of these media materials.

If media professionals highlighted elements from Afzal’s first ‘confession’ in custody to substantiate their allegations against Geelani, they also observed the fact that later, during filming of the ‘broadcast confession’ of 18th December, Afzal explicitly denied the fact that Geelani had anything to do with the conspiracy. It was only when footage from this interview was reproduced in a Special Aaj Tak (‘100 Days After the Attack’) programme that it came into light that Afzal had actually explicitly exonerated Geelani.12

The above instance is indicative of the fact that media is NOT reporting the facts and circumstances of the cases responsibly. They lack the basic ethics and morals that are impliedly applicable on the media houses. They, on the other hand, are helping the political agencies to achieve their ends. They often act as instrumentality of powerful agencies to achieve their mala fide objectives.

Media Trial

In today’s modern democracies media has become very powerful and they often employ their own reporters, to unearth details not otherwise available. This investigatory journalism has its risks. The law 12 Arundhati Roy, Nandita Haksar, et.al., The Hanging of Afzal Guru (Penguin Books, India, 2013)

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does not prohibit it in the abstract. But the law does require the players in this activity to keep within certain limits. These limits primarily flow from:

1. Right to Reputation

2. Right To Privacy

3. Law of contempt of court13

Right to Reputation requires that an allegation casting an adverse reflection on the character of an individual should not be published, unless the publication falls within one of the exceptional situations, recognised in this regard by law. If the situation does not fall within the list of “privileged” or protected situations then the publisher would be guilty of defamation.14

The same was also done in the Parliamentary attack case where in many reports were published pertaining to Geelani and Afzal Guru which were highly defamatory in nature. An excerpt from the book ‘The Hanging of Afzal Guru’ in support of the stated proposition:

In a news item entitled ‘Past 24 Hours’, the first item pertained on Geelani:

“A Zakhir Hussain (evening) College lecturer, Abdul Ahmed Jelani, detained after a call from the militant’s mobile phone is traced on his mobile. Terrorist’s spoke to him before the attack and lecturer made a phone to Pakistan after the strike.”15

Further in the infamous case of defamation filed by Lt. Gen. Tejinder Singh against the then Chief of Army Staff, Gen. V.K. Singh, media did not look into the truthfulness of the serious allegations made by the then COAS against the Retired Lt. General.

13 P.M. Bakshi, The Constitution of India 51 (Universal Law Publishing Co. Pvt. Ltd, Delhi, 12th edn., 2012) 14 P.M. Bakshi, The Constitution of India 51 (Universal Law Publishing Co. Pvt. Ltd, Delhi, 12th edn., 2012) 15 “Past 24 Hours”, Hindustan Times, 16 December 2001

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In the above case, Hindustan Times by the way of a news item and a blog post had published a news item stating that the retired Lt. Gen. Tejinder Singh had offered the then COAS Gen. V.K. Singh a Rs. 14 Crore bribe in connection with TATRA truck deal. The media did not look into the truthfulness of the allegations and did not suspect the unusual press release by the Army Headquarters.

The abovementioned instances are highly indicative that there is zero sense of responsibility amongst the media houses in reporting of cases.

Conclusion

It is not as if the courts are unaware about the influence of media reporting on the judicial trial of cases. The courts have come across this question on various instances but the view of courts on the said matter is not uniform. It is contradictory to each other.

On one hand, the court makes an observation that the Judges who adjudicate the cases are trained professionals and their judgement can never be clouded over by the media reports.

The following is an excerpt from the judgment in the Afzal Guru Case where the Hon’ble Court has taken a stand that Judges do not get influenced by the media reporting. The said judgment makes a reference to some other cases which have also been mentioned:

“Where trials are conducted by Judges, the grievance relating to trail by press would stand on a different footing. Judges DO NOT get influenced by propaganda or adverse publicity. The case is decided on the basis of evidence on record. In very present case, the Hon’ble Supreme Court in its judgment reported as 2003 (1) SCALE 113, Zee News vs. Navjot Sandhu held that media interviews DO NOT prejudice judges.”16

Further, in the Afzal Guru judgment the adjudicating judges added that:

16 R. Balakrishna Pillai vs. State of Kerala 1996 SCC (1) 478

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“Judges are trained, skilled and have sufficient experience to shut their minds receiving hearsay evidence or being influenced by media.”17

On the other hand, the same Hon’ble Court who made the above observation recently passed a GAG order restraining media from reporting the infamous case of charges of sexual harassment on the former Justice Ganguly.

The moot question that arises from the above facts is that whether the judges get influenced by media reports only in cases pertaining to some famous person or they tend to favour a person from their own profession?

In Afzal’s case the judges are trained professional but in Justice Ganguly’s case they are not professional enough to decide the case without passing a GAG order restraining media from reporting the said case.

The above facts puts a big question mark over the applicability of the principle of ‘equality of laws’ that have been enshrined under Article 14 of our Constitution. The law in practicality are different for different people. The principles that law is equally applicable to everyone in similar circumstances and that law is equally applicable to all are NOT being enforced by the courts.

17 State vs. Mohd. Afzal Guru and others 107 (2003) DLT 385

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JUDICIAL ACTIVISM & PROTECTION OF CHILD RIGHTS

C.Prabakar*

Introduction

With more than a third of its population below the age of 18, India has the largest child population in the world. Further India has made some significant commitments towards ensuring the basic rights of children. There has been progress in overall indicators: infant mortality rates are down, child survival is up, literacy rates have improved and school dropout rates have fallen. But the issue of child rights in India is still caught between legal and policy commitments to children on the one hand, and the fallout of the process of globalisation on the other. The Children are being deprived of even the scarce social benefits once available; they are displaced by forced and economic migration, increasing the number of children subsisting on the streets; more and more children are being trafficked within and across borders; and rising numbers of children are engaged in part- or full-time labour.

Further the role of the Indian Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory intervention in the present era. The judiciary plays an important role in the protection of fundamental rights1 of the citizen and non-citizens alike. The true nature and scope of the function of the court has since long been a matter of debate almost in all the countries regulated by written Constitution. In this modern era Judicial Activism emerged as tool for protecting Rights of the Children including protection from sexual exploitation, child trafficking, child abuse etc. some case dealt by the Indian judiciary for the protection of child rights.

* 3rd Year BGL, Dr.Ambedkar Govt. Law College, Chennai - 104 1 Part III of the Constitution. For details see Durga das Basu, Shorter Constitution of India, Prentice-Hall of India Pvt. Ltd., New Delhi, 1996, p. 22-23.

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Constitutional provisions for protection of Children

On November 20, 1989, the UN General Assembly adopted the Convention on the Rights of the Child (CRC). On January 26, 1990, the opening day of the session, 61 countries signed it. The CRC covers all children under the age of 18 years, regardless of sex, colour, language, religion or race. India ratified the CRC in 1992.

Several constitutional provisions protect children in India. Among them:

Article 15 affirms the right of the State to make special provision for women and children.

Article 24 provides that no child below the age of 14 shall be employed to work… in any hazardous employment.

Article 39 (e) of the Directive Principles of State Policy provides that children of tender age should not be abused and that they should not be forced by economic necessity to enter vocations unsuited to their age or strength.

Article 39 (f) requires children to be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth be protected against exploitation and moral and material abandonment.

Article 45 of the Directive Principles of State Policy provides for free and compulsory education for all children until they complete the age of 14.

Prior to the Fifth Five-Year Plan, the government’s focus was on child welfare through the promotion of basic minimum services for children. This culminated in the adoption of the National Policy for Children, in 1974. The Fifth Five-Year Plan (1974-79) saw a shift of focus from welfare to development and the integration and co-ordination of services after the Integrated Child Development Services (ICDS) 1975. The Sixth Five-Year Plan strengthened child welfare and development. It led to the spatial expansion and enrichment of child

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development services through a variety of programmes. The focus of the Eighth Five-Year Plan (1992-97) shifted to human development through advocacy, mobilisation and community empowerment. The Government of India declared its commitment to every child in the Ninth Five-Year Plan (1997-2002).

The Tenth Five-Year Plan advocated a convergent/integrated rights-based approach to ensure the survival, development, protection and participation of children. It set targets for children: all children to complete five years of schooling by 2007; reduction in gender gaps in literacy and wage rates by at least 50%, by 2007; reduction in Infant Mortality Rate (IMR) to 45 per 1,000 live births by 2007, and 28 by 2012; reduction of Maternal Mortality Rate (MMR) to 2 per 1,000 live births by 2007 and to 1 per 1,000 live births by 2012; arresting the decline in the child sex ratio; and universalisation of the ICDS scheme. The draft approach paper of the Eleventh Five-Year Plan (2007-2012) prepared by the Planning Commission emphatically stated that ‘Development of the child is at the centre of the Eleventh Plan’. While continuing with the rights-based approach to child development, the plan recognises the importance of a holistic approach, focusing both on outcomes and indicators for child development as well as macro-perspective trends and governance issues.

Child Labour and Right to Education

Education is crucial for building human capabilities and for opening opportunities. The abolition of child labour must be preceded by the introduction of compulsory education since compulsory education and child labour laws are interlinked. Article 24 of the Constitution bars employment of child below the age of 14 years.2 Article 45 is supplementary to Article 24 for if the child is not to be employed below the age of 14 years he must be kept occupied in some educational

2 Article 24: No Child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

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institution.3The Court in series of cases has unequivocally declared that right to receive education by the child workers is an integral part of right of personal liberty embodied in Article 21 of the Constitution.4 In M.C. Mehta v. State of Tamil Nadu5 The Supreme Court directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.6 Recently Article 21-A has been inserted in the India Act, 2002 which provides that the state shall provide free and compulsory education to all children of the age of six to furteen years in such manner as the state may, by law, determine. In Unni Krishnan J.P. v State of Andhra Pradesh Justice Mohan observed “in educational institutions which are seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.7

India has the highest number of child labourers in the world.

Census reports clearly point to an increase in the number of child labourers in the country, from 11.28 million in 1991 to 12.59 million in 2001. (12)

Reports from the M V Foundation in Andhra Pradesh reveal that nearly 400,000 children, mostly girls between 7 and 14 years of age, toil for 14-16 hours a day in cotton seed production across the country. Ninety percent of them are employed in Andhra Pradesh alone. (13)

According to Yamina de Laet of the International Chemical, Energy and Mine Workers’ federation (ICEM), children aged 6-14

3 Article 45 of the Indian Constitution: State shall endeavour to provide, within period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years. 4 AIR 1993 SC 2178. 5 AIR 1991 SC 417. 6 http://www.hrcr.org/safrica/childrens_rights/India.html. 7 AIR 1993 SC 2178.

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years represent 40% of the labour force in the precious-stone-cutting sector. (14)

Rescue operations in Mumbai and Delhi in 2005-2006 highlight the employment of children in zari and embroidery units.

Although the number of children employed in the agricultural sector, in domestic work, roadside restaurants, sweetmeat shops, automobile mechanic units, rice mills, Indian Made Foreign Liquor (IMFL) outlets and most such sectors considered to be ‘non-hazardous’ is unknown, there is ample evidence to suggest that more and more children are entering the labour force and are being exploited by their employers.

The existing law on child labour that allows children to work in occupations that are not part of the schedule of occupations that are considered harmful to children contradicts the right of every child to free and compulsory education. And yet no attempt is made to resolve this contradiction. The Social Jurist, HAQ: Centre for Child Rights and M V Foundation have filed a joint PIL with the Supreme Court of India challenging the validity of the Child Labour Act in the wake of the constitutional guarantee to right to education for children in the 6-14 age-group. In the meantime, vide a notification in the official gazette dated October 10, 2006, the Centre has expanded the list of hazardous occupations banning employment of children under 14 years as domestic help or in restaurants and the entertainment industry.

Child Labour Welfare and the Locus Standi

The liberalization of the concept of locus standi, to make access to the court easy, is an example of the changing attitude of the Indian Courts. It is generally seen that the working children by and large come from the families, which are below the poverty line, and there are no means to ventilate their grievance that their fundamental rights are being breached with impunity. Keeping in view the pitiable conditions of the child workers, the apex court has shown its sensitivity towards the poor people by relaxing the concept of locus standi.

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One important case in which Supreme Court entertained a letter, sent by post as public interest litigation was the Peoples Union for Democratic Rights v. Union of India8 Also known as the Asiad Workers case. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under 14 could not be employed in a hazardous occupation. The right of a child against exploitation under Art.24 was enforceable even in the absence of implementing legislation, and in a public interest proceeding9

They have no faith in the existing social and economic system”. A high water mark in the application of the Article 24 of the Constitution was reached in the decision of the Court in Salal Hydro Project v. Jammu and Kashmir10 wherein the Court reiterated the above stand. The Court maintained that child labour is an economic problem. Poor parents seek to argument their meager income through employment of their children. So, a total prohibition of child labour in any form may not be socially feasible in the prevailing socio-economic environment. Article 24 therefore, puts only a practical restriction on child labour. The Court further observed that so long as there is poverty and destitution in this country, it will be difficult to eradicate child labour.

Juvenile Justice

The Juvenile Justice (Care and Protection) Act, 200011 is enacted as human rights legislation and it is now in force in all State uniformly, repealing the entire Children’s Act enacted by states individually. This legislation deals with the two types of juveniles. “Juvenile in conflict with law” as defined under Section 2(1) and child 8 AIR 1982 SC 1473. 9 http://www.hrcr.org/safrica/childrens_rights/India.html. 10 AIR 1987 SC 177. 11 Juvenile Justice (Care and Protection) Act was enacted in 2000 by repealing the Juvenile Justice Act 1986.

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in need of care and protection as defined under Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has not attained the age of 18 years. The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.12 In Sheela Barse v. Union of India13 Ms.Sheela Barse, a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. She petitioned for the release of such young children from jails, production of information as to the existence of juvenile courts, homes and schools and for a direction that the District judges should visit jails or sub-jails within their jurisdiction to ensure children are properly looked after when in custody. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care. The Court urged the setting up of remand and juvenile homes for children in jails.14 Further the Supreme Court came forward to protect the rights of the children in the observation homes.

Female Infanticide

The very existence of the girl-child is under threat. Defying the normal male-female balance, the higher survival capacity of girl babies, and greater life expectancy of women to men prevalent in human populations, the female-male balance in India has been adverse to females for at least 100 years. The 1901 National Census recorded a female-male ratio of 972 to 1,000 males, for all ages. Virtually every subsequent census showed a decline. While the overall female-male ratio for all ages rose slightly from the 1991 figure of 927 females per 1,000 males to 933 females per 1,000 males in 2001, the juvenile sex ratio in the 0-6 age-group fell from 945 girls per 1,000 boys to 927 girls per 1,000 boys. This is a decline of 18 points in just one decade! The

12 Article 10 of the International Convention on Civil and Political Rights, 1966. 13 1986 3 SCC 596. 14 http://www.hrcr.org/safrica/access_courts/India/Indiacases.html.

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Government of India, in its report to the UN Committee on the rights of the Child (8) said: “Every year, 12 million girls are born -- 3 million of whom do not survive to see their 15th birthday. About one-third of these deaths occur in the first year of life and it is estimated that every sixth female death is directly due to gender discrimination.”

Children with disability

Of all persons living with disability, 35.9% are children and young adults in the 0-19 age-group. Three out of five disabled children in the age-group 0-9 years are reported to be visually impaired. Movement disability has the highest proportion (33.2%) in the 10-19 age-group. This is largely true of ‘mental’ disability also. Barely 50% of disabled children reportedly reach adulthood, and no more than 20% survive to cross the fourth decade of life. Although there is very little information regarding the nutritional status of children with disabilities, disabled children living in poverty are among the most deprived in the world. Those who suffer mental disorders are much worse off, as there is still very little recognition of the problem. Poor enforcement of the Persons With Disabilities Act and the Mental Health Act means that disabled people in India continue to be discriminated against in terms of access to basic services and opportunities. There are few special services for disabled children. Paediatric wards at government hospitals are incapable of dealing with children with disabilities, particularly in terms of infrastructure and resources.

Sexual Exploitation of Children

Human Rights are derived from the dignity and worth inherent in the human person. Human right and fundamental freedom have been retreated by the Universal Declaration of Human Rights. The human rights for women, including girl child age, therefore, inalienable, integral and indivisible part of universal human rights. All forms of discrimination on ground of gender are violative of fundamental freedoms and human rights. It would, therefore, be imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal and glory of

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womanhoods. Right of the child to development hinges upon elimination of prostitution. Success lies upon effective measures to eradicate root and branch of prostitution.

In Vishal Jeet v. Union of India15 Supreme Court in this case deals with some seminal questions relating to the sexual exploitation of children. Here it has been observed that it is highly deplorable and heart rending to note that many poverty stricken children and girls in the prime age of youth are taken to the ‘flesh market’ and forcibly pushed into “flesh trade” which is being carried on in utter violation of all cannons of morality, decency and dignity of mankind. In Gaurav Jain v. Union of India,16 The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry.17

Conclusion

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme Court to protect the children from various type of exploitation. Although the Supreme Court made laudable directions and suggestions in many instances to protect basic rights of poor children, unfortunately these directions and suggestions are not followed and implemented by the government machinery effectively. In this regards, the performance of the Indian Judiciary stands out as a signal contribution to the implementation of human rights generally and that of Child Rights in particular. The judiciary has always made concrete efforts to safeguard them against the exploitative tendencies of their employer by regularizing their working hours, fixing their wages, laying down rules about their health and

15 AIR 1990 SC 1413. 16 AIR 1997 SC 3051. 17 http://www.hrcr.org/safrica/childrens_rights/India.html.

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medical facilities. The judiciary has even directed the states that it is their duty to create an environment where the child workers can have opportunities to grow and develop in a healthy manner with full dignity in consensus of the mandate of our constitution.

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volume 2, issue 4, december 2014 indian journal of legal...

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