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INTERNATIONAL STANDARD SERIAL NUMBER: 2395 6402* | SEPTEMBER 2018 | COPYRIGHTS © 2018
22, VICHITRA VILLA, PROFESSOR COLONY, BHOPAL| +91 - 94250 14589; 7217821757; 755 2660008| *FORMERLY KNOWN AS THE GLOBAL JOURNAL OF ARTS
INTERNATIONAL STANDARD SERIAL NUMBER: 2395 6402* | COPYRIGHTS © 2018 | ALL RIGHTS RESERVED
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COPYRIGHTS © 2018
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ALL RIGHTS RESERVED.
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INTERNATIONAL STANDARD SERIAL NUMBER:
2395 6402*
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MS. GEETA LUTHRA
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Senior Advocate,
Supreme Court of India
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Patron
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BOARD OF EDITORS
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MS. GUNJAN SAXENA

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Editor in Chief
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MR. VILAKSHAN SAXENA

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Executive Editor
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MS. ANSHIKA SHUKLA

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Associate Editor
CONTENTS
PAGE 1- 4
CRITIQUE ON THE CONCEPT OF RULE OF LAW & ITS APPLICATION IN THE INDIAN POLITY
Mehak Jaswal |Symbiosis Law School Pune
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PAGE 5-11
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CONFUCIUS & VIRTUE JURISPRUDENCE
G.V.Athvaidh | TTNDALU-School of Excellence in Law
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PAGE 12-15
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MORE THAN WHAT MEETS THE EYE
(AN ANALYSIS OF 'VIOLENCE & THE WORD')
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Angad Singh Makkar | O.P. Jindal Global University
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PAGE 16-21
INSURANCE OMBUDSMAN: AN ANALYSIS
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Litha Elizabeth George | Alliance University
PAGE 22-25
TRIBUNALIZATION OF JUSTICE:
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A COMPARATIVE ANALYSIS OF LEGAL SYSTEMS IN INDIA & THE USA
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Adithya Sudhakaran Nair | Jindal Global Law School (JGLS)
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PAGE 26-30
FAILURE OF INDIAN CRIMINAL JUSTICE SYSTEM IN PROTECTING SEXUAL ASSAULT VICTIMS
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Sharmishtha Bharde & Tanya Kukade |Symbiosis Law School, Pune

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PAGE 31-40
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SIMULTANEOUS ELECTIONS: IN THE LIGHT OF FEDERALISM & MULTIPARTY SYSTEM.

Jayanta Chakraborty | National Law University, Odisha.
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PAGE 41-51
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TRADEMARK ON THE CYBERSPACE

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Shirshak & Kumari Nidhi | Indraprastha University

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PAGE 52-56
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TRENDS IN INTERCOUNTRY ADOPTION WITH SPECIAL FOCUS ON INDIA

Diganth Raj Sehgal |Christ University
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PAGE 57-59
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A CRITICAL ANALYSIS ON THE NEED OF NATIONAL COURT OF APPEALS.

Jehosh Paul |School of Law, CHRIST (Deemed to be University)
*FORMERLY KNOWN AS THE GLOBAL JOURNAL OF ARTS
PAGE 60-64
AFFIRMATIVE ACTION FOR WOMEN & HUMAN RIGHTS LAW
Gaurav Khatri | School of Law, CHRIST (Deemed to be University)
PAGE 65-69
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STATE SOVEREIGNTY & THE EXCLUSIVE ECONOMIC ZONE: DEVELOPMENT OF
INTERNATIONAL LAW
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Soham Tuteja |O.P. Jindal Global University, Sonipat
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Akriti Sharma | Symbiosis Law School, NOIDA
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PAGE 70-76
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COMPETITION LAW IN INDIA: A TIGHTROPE WALK
Darshana Paltanwale | Symbiosis Law School, Pune
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PAGE 77-79
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CHANGING DEFINITION OF PRIVATE PROPERTY: INHERITANCE OF DIGITAL ASSETS
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Natansh Jain | NLSIU, Bangalore
PAGE 80-85
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CONSEQUENCES OF HIV/AIDS-A LEGAL PERSPECTIVE
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Siraparapu sreenivasa rao |Andhra University

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PAGE 86-92
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ENFORCEMENT OF FOREIGN ARBITRAL AWARDS:

PUBLIC POLICY & OTHER CONSIDERATIONS
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Ms. Ambareen Mujawar | Economic Laws Practice

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PAGE 93-97
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PRIVACY JURISPRUDENCE & ITS IMPACT ON THE LGBTQ COMMUNITY

Panya Mathur | School of Law, Christ University, Bengaluru
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PAGE 98-104
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FORENSIC SCIENCE, CRIMINAL INVESTIGATION & ANCIENT WISDOM: AN OVERVIEW

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Amal Debnath | Research Scholar, Department of Law, Tripura University, West Tripura
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PAGE 105-108
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THE CONCEPT OF GOVERNMENT COMPANIES & ARTICLE 12 OF THE CONSTITUTION

Kanika Lahoti | School of law, Christ (deemed to be University)
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PAGE 109-115
ROLE OF INDIAN JUDICIARY VIS-A-VIS HUMAN RIGHTS JURISPRUDENCE
Ms. Madhuri Kharat | Department of Law, Savitribai Phule Pune University
PAGE 116-120
ARBITRATION IN INTELLECTUAL PROPERTY DISPUTES
Harshit Singh & Alok Saxena |Amity University, Noida
PAGE 121- 128
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UNIFORM CIVIL CODE – ART THEE OUR SAVIOR?
Revanth. A & Vikram. S | School of Law, Sastra Deemed to Be University
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PAGE 129-137
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ENVIRONMENTAL REFUGEES:
A CASE STUDY ON INDIA-BANGLADESH CLIMATIC MIGRATION
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Bhawna Nanda |National University of Study and Research in Law, Ranchi
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PAGE 138-145
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CRIME OF SEXUAL VIOLENCE AGAINST WOMEN DURING ARMED CONFLICT:
VIOLATION OF HUMAN RIGHTS LAW
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Nehal Loonker | School of Law, Christ University
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PAGE 146-150
UNIFORM CIVIL CODE: OBSTRUCTIONS & APPLICATION
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Rishabh Munjal | University School of Law and Legal Studies, GGSIP University
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PAGE 151-157
REVERSE VEIL PIERCING: AN INSIGHT INTO THE GOVERNANCE OF CORPORATIONS
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Nikitha Prasad | Christ University

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PAGE 158-165
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THE PENDENCY OF CASES IN THE INDIAN JUDICIARY:

CAUSES, IMPACTS & POSSIBLE SOLUTIONS
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Aditya.G | School of Law, Christ University

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PAGE 166-171
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TRIPLE TALAK: QURAN, ISLAMIC COUNTRIES & INDIA

Rishabh Singh | School of Law Christ, Bangaluru
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PAGE 172-177
REHABILITATION & RE-INTEGRATION OF CHILDREN IN CONFLICT WITH LAW IN INDIA
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Shubham Khanna |School of Law, Christ

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PAGE 178-185
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INDIA & THE INTERNATIONAL INVESTMENT ARBITRATION

Shubhanshu Mishra | Symbiosis Law School NOIDA
PAGE 186-193
DOMESTIC VIOLENCE: AN INVISIBLE VICE
Hiba Zaheer | Faculty Of Law, Aligarh Muslim University, Aligarh
PAGE 194-198
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FEASIBILITY OF THE PARIS AGREEMENT IN INDIA
Tanya Bharti | School of Law, Christ University
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PAGE 199-207
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TORT LAW - PHARMACEUTICAL PRODUCT LIABILITY - LACUNAE IN INDIA
Suryanshu Priyadarshi | School of Law, Christ University, Bengaluru
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PAGE 208-212
A LEGAL ECONOMIC ANALYSIS OF E-CONTRACTS IN E-COMMERCE IN INDIA.
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Sneha Dey | School of law, Christ
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PAGE 213-217
AN ANALYSIS ON THE PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018
PAGE 218-223
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Oorja S. Chari | Government Law College, Mumbai (Mumbai University)
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A LEGAL & CRITICAL ANALYSIS OF SECTION 377 OF INDIAN PENAL CODE,1861 WITH RESPECT
TO GENDER NEUTRALITY
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Rohit Agarwal | Christ (Deemed to Be University)

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PAGE 224-231
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GENES RESPONSIBLE FOR CRIMINAL BEHAVIOUR? - A LEGAL ANALYSIS

Shreya Eliza Sunny | Christ (Deemed to Be University), Bengaluru
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PAGE 232-234
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TRANSGENDERS IN INDIAN LAW - THE WAY AHEAD

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Rachel Jacob Tharakan | Christ (Deemed to Be University), Bengaluru

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PAGE 235-237
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MARRIAGE: A PASSPORT TO RAPE IN INDIA?

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Shrutika Lakhotia | Christ (deemed to be University)

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PAGE 238-244
MARINE TERRORISM & PIRACY AT SEA
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Naina Srivastava | Amity Law School Amity University Lucknow
PAGE 245-249
A CASE COMMENTRY: CARPENTER V. UNITED STATES
Akanksha Badika & Prachi Trivedi | NMIMS School Of Law
PAGE 250-251
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PROTECT OR PUNISH
Rohit Ashok Maheshwary | Christ (Deemed to be University), Bangalore
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PAGE 252-256
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COMPENSATION FOR THE UNDUE PRETRIAL DETENTION:
A LEGAL ANALYSIS OF THE RIGHT TO SPEEDY TRIAL
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Chhaya K | School of Law Christ (Deemed to be University)
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PAGE 257-265
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THE VICIOUS CYCLE OF AGRARIAN CRISIS IN INDIA
Jefferson Christian Osmond Francis | Christ University, School of Law
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PAGE 266-273
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RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT & ITS IMPLICATIONS
Basil Varughese | Campus Law Centre, University of Delhi
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Karan Dua | Vivekananda Institute of Professional Studies, IP University

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PAGE274-276
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RIGHT TO BODILY INTEGRITY IN LIGHT OF SURROGACY & ORGAN TRANSPLANTATION

Sakshi Agrawal |School Of Law, Christ (Deemed to be University)
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PAGE 277-281
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MINERVA MILL V. UNION OF INDIA

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Shraddha Saxena & Krishankant Sharma | Jagran Lackecity University

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PAGE 282-286
A CRITICAL ANALYSIS OF SEARCH & SEIZURE PROCEEDINGS IN INDIA IN THE LIGHT OF
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ARTICLE 20(3)
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Divya Joseph | Christ [Deemed to Be University]

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PAGE 287-292
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AN ANALYSIS OF ENCOUNTER KILLINGS IN INDIA

Shreyansh Ajmera | Christ ( Deemed to be University )
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PAGE 293- 299

ARTICLE 370: AN INSIGHT INTO THE POLITICS OF AUTONOMY
Aditya Rathi | Shambhunath Institute of Law, Allahabad
PAGE 300-304
CLEARING THE AIR: JUDGEMENT OF THE SUPREME COURT IN THE ATROCITIES ACT
Samarth Khanna |Practicing Advocate
PAGE 305-306
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THE LIST: DUE PROCESS V. DIGNITY
Komal Israni | National University of Juridical Sciences
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PAGE 307-312
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SECTION 377: HOMOSEXUALITY IN INDIA, A FEUD WITH SOCIETY
Prerna Deep | Campus Law Centre, Faculty of Law, University of Delhi
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PAGE 313-317
THE LEGALITY OF INTERNATIONAL COMMERCIAL CONTRACTS IN THE LIGHT OF THE
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APOSTILLE CONVENTION, 1961
Sakhee Uday Mehta | School of Law, CHRIST, Bengaluru
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PAGE 318-323
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LIVE-IN RELATIONSHIPS: INEPT FOR INDIAN NOBILITY?
Simran Syal | University Institute of Legal Studies, Panjab University, Chandigarh
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Aditi Lakhanpal | University School of Law, Rayat Bahra University
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PAGE 324-327
SECTION 309: AN OXYMORON
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Parth Sanjay Govilkar | Mumbai University School of Law

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THE INTERNATIONAL JOURNAL OF LAW & JURISPRUDENCE I.S.S.N. | 2395-6402*
CRITIQUE ON THE CONCEPT OF RULE OF LAW AND

ITS APPLICATION IN THE INDIAN POLITY
MEHAK JASWAL
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“The law ought to be the king and there ought to be no other” of various authors which has led to an array of
definitions to the term ‘Rule of Law’.
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The motto by which free countries of the world live by.
The term “rule of law" means literally what it says: the It traces back to the time of the widely identified
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rule of the law. It retains a place at the center of our concept that ‘the king is under the law’ has been a
political morality and is an ideal, like Democracy. significant and independent source of the rule of law in
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medieval times for Germans. The event of Magna
CONCEPT OF RULE OF LAW Carta, 1215 also serves to be a source for the
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establishment of the concept of Rule of law in the
The basic concept behind rule of law is that the state is
medieval times, a restraining power over the kings.
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not governed by the nominated representatives chosen
by the people but is governed by the rule of law. The Following the above-mentioned concepts came the
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Constitution is the supreme power of the land and the liberalist and federalist approach to rule of law medieval
executive and legislative derive their authority from the natural law thinkers; Enlightenment philosophers such
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constitution. The dynamic concept of rule of law is as Hobbes, Locke, Rousseau, Montesquieu in their
capable of many interpretations for the successful theory of social contracts proposed a limited delegation
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working of the democracy. In simpler terms rule of law of power concept which primarily specified a separation
of
is basically the establishment of a set of rules to govern of the legislative and executive power to assure that the
the arbitrary use power by imposing a set of well-defined government act according to the standing laws.
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and established laws. The idea behind this is that the law Absolute monarchy was also opposed as being
should govern the individuals and not the other way inconsistent with the civil society and establishment of
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around. legislative was held to be necessary. Following the

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concepts of Locke and Montesquieu came the concept

Therefore, supremacy of law is the embodiment of Rule
of Dicey also known as the concept of three pillars.
of law. It refers to ‘a government based on principles of
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law and not of men’. Sir Edward Coke originated the DICEY’S CONCEPT AND THEORY
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formal term rule of law from the French phase ‘la principe
de legalite’ which means the principle of legality. In other In 1885 Dicey said that ‘Rule of Law’ meant the
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words, the concept of ‘la Principe de legalite’ opposes the “absolute supremacy or the predominance of regular
arbitrariness of power. law as opposed to the influence of arbitrary power and
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excludes the existence of arbitrariness, of prerogative, or

As defined by Dicey, means “the absolute supremacy or
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even wide discretionary authority on the part of the

predominance of regular law as opposed to the influence government.”
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of arbitrary power and excludes the existence of

arbitrariness, of prerogative, or even wide discretionary He observed that in France government officials were
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authority on the part of the government.” exercising wide discretionary powers and if there was
any dispute between a government official and a private
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ORIGIN individual, it was not tried by an ordinary court, he

claimed the same wide discretionary powers were not
Rule of law originates from way back from the time of
being exercised in Britain, he claimed that in Britain the
civilization. However, with time, as societies have
Englishmen were ruled by law and law alone, this was
evolved and a change has been there in the perception
not the scenario in majority of countries around the
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SEPTEMBER 2018 Formerly Known as Global Journal of Arts
1
world. According to him when there is room for authority and Dicey and he found this authority in the
discretion and arbitrariness it leads uncertainty of legal courts.
rights in the minds of the citizens.
Dicey emphasized that the courts are the enforcers of
THE THREE PRINCIPLES the rule of law and they ought to be impartial and free
from external influences in order to be an important
Dicey in his book, the law and the constitution, pillar of justice.
published in the year 1885, in the backdrop of the
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Britain’s Model propounded three meanings or IMPORTANCE
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principles to the concept of Rule of law:
In a democratic framework like that of India a clear-cut
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1. Supremacy of Law nexus between Rule of Law and democracy is required.
Rule of Law plays a significant role in ensuring that there
The most basic understanding of rule of law is that it
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is:
rules over all people whether a person at a high position
• Constraint on Government Powers
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or lower one. The executioners of the law have to give
justified reasons as to their exercise of power to make
Rule of law just like Democracy is an institutional
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and administer law.
approach and does not say anything about the outcomes
2. Equality Before Law of the processes and procedures. Rule of law is an
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instrument of the government and the government is
While supremacy of law sets in place a check on the
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considered above law and rule of law, which implies that
government in the process making and administrating everyone in society is bound by the law, which includes
the law. The principle of ‘equality before law or the equal the government. Therefore, adherence to the rule of law
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subjection of all classes to the ordinary law seeks to becomes a necessity.
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ensure that the enforcement of the law is justifiably
done. In Britain Dicey maintained that every person was • Absence of Corruption
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subject to a one and the same body of law. This principle

had a tremendous impact on the growth of the It is essential that the holders of power or the executors
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Administrative law in Britain where people were yet not of power do not misuse the same and therefore it is
ready to accept the concept of Rule of Law. necessary that the rule of law kept the officials away
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from, improper influence, bribery by public or private

In today’s time what equality before law stands for is interests, and misappropriation of public funds or other
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that it is not enough that the law should be fair but the resources.
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application of law should also be justifiable. It cannot be

such that it discriminates amongst casts, sex, religion, • Open Government
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race, etc.
Rule of Law makes it necessary for the government to
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3. Predominance of Legal Spirit share information, empowers people with tools to hold
the government accountable, and fosters citizen
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The mere inclusion of the rights and restraints is not participation in public policy deliberations.
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enough a check has to be kept so that the rights and

limitations are not abridged, trampled or overlooked. • Fundamental Rights
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While including this principle as an essential for the rule Rule of law ensures the protection of the human rights.
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of law it was believed by Dicey that it was insufficient to A system of positive law that respects core human rights
simply include the above two principles in the established under international law and ensures equal
constitution, it was felt by Dicey that in order for the treatment of the citizens, ensures absence of
state to abide by the laws there has to be an enforcing discrimination, provides with the right to life and
security effectively, renders a due process of law and
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2
rights of the accused guarantees freedom of opinion, constitution. Part III of the constitution acts as a way of
expression, belief and religion. Protects privacy of restraint on the various organs, which exercise power
individuals and allows freedom to assemble associate. over the nation. It includes freedom of speech,
expression, association, movement, residence, property,
• Order &Security profession and personal liberty.
When crime is effectively controlled, civil conflict is
THE ROLE OF JUDICIARY
effectively limited and people do not resort to violence
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to redress personal grievances such is the nature of rule The judicial system of India has been at times been
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of law to ensure order and security. instrumental in shaping the path of rule of law India
time and again the Judges have made a positive
• Regulatory Enforcement
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approach in interpreting the constitutional provisions,
With rules comes regulations and the rule of law ensure the courts have ensured that applicability of rule of law
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the necessary implementation of fair and effective is made and citizen’s rights do not remain only on paper
regulations. Regulations, both legal and administrative but are incorporated in spirit too.
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help in structuring of the Government. Strong
In the case of A.D.M. Jabalpur v. Shiv Kant Shukla,
application of rule of law enforces the application of
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Justice Khanna Observed that: “Rule of Law is the
regulations effectively.
antithesis of arbitrariness…Rule of Law is now the
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• Civil & Criminal Justice accepted norm of all civilized societies. Everywhere it is
identified with the liberty of the individual. It seeks to
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A functional system of rule of law ensures that civil maintain a balance between the opposing notions of
matters, grievances are peacefully and effectively individual liberty and public order.”
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resolved by the civil justice system. Also on the other
hand a constructive criminal justice system constitutes a In the case of Bachhan Singh v. State of Punjab the
of
mechanism, which will ensure that the offenders of the court in regards to rule of law made three fundamental
society are adjudicated successfully and in a timely observations first being that law-making must essentially
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manner. be in the hands of democratically elected legislature

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secondly, the legislature should not hold any unfettered

An effective way to maintain a check across nations was legislative power and lastly the independence of
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the starting of the World Justice project Rule of Law judiciary being of paramount importance.
Index, which measures rule of law adherence in 113
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countries and jurisdictions worldwide based on more Thecase, which was instrumental in bringing a stir in the
chain of events, was the case of Shankari Prasad v.
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than 110,000 household and 3,000 expert surveys.

Featuring primary data, the WJP Rule of Law Index Union Of India where the question on the amenability
of fundamental rights arose. The dithering question was
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measures countries’ rule of law performance across

these eight factors mentioned above: Constraints on finally settled in the case of KeshavnandaBharti v. State
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Government Powers, Absence of Corruption, Open of Kerala where the apex court held that Rule of Law is
the “basic structure’ of the constitution and was
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Government, Fundamental Rights, Order and Security,

Regulatory Enforcement, Civil Justice, and Criminal embodied in the form of Article 14 under the Indian
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Justice. Constitution as held in the case of Indira Nehru v. Raj

Narayan.
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RULE OF LAW IN INDIA

The Supreme Court in the case of Som Raj v. State of
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From the very beginning India intended to be a nation Haryana discussed yet another facet of rule of law, the
governed by the rule of law, which owes its origin to independence of judiciary and judicial review being a
British Jurisprudence. It is only during the British time successful mechanism to keep checks and balances in
that the concept of Rule of Law was embedded. The the system. Therefore, any provision of the law, which
concept pervades through the legal system through the takes away, the power of seeking judicial review by a
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3
citizen, would go against the basic theory of Rule of In light of these unhealthy developments the growth of
Law. the nation has been hindered. This lack of uniformity
runs contrary to the ideal that in the light of law every
The very recent case of Sanjay Dutt also proves that the man stands equal as set forth by Aristotle.
law is not below anyone. Even though questions have
been raised whether due process was followed during In 2017 -18 India had a global ranking of 62 in the Rule
the jail time of the famous Bollywood actor, the of Law Index, which is an indicator of the fact that India
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importance of rule of law was felt at all times. has a far way to go to be corrupt free and have an
effective stand when it comes to the inculcation of Rule
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A CRITIQUE of Law in the nation. There has been an improvement
in the standing of India by four positions from 2016, but
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As we see the scenario today in India the concept of rule
a long road still lies ahead of us to be a nation free from
of law is on its verge of losing its ground as a dynamic
any inhibitions. The democratic republic nation India
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norm of social order because rather than it being ‘the claims to be still has to prove its ground.
government of law’ ithas turned out to be ‘the
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government of wise men’ rule of law has been a CONCLUSION
disappointment on various levels it has failed to achieve
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equality which the constitution guarantees as the very If we as a nation aspire to be free of any inequalities
basic right under Article 14. India even after 300 years discriminations, disparities and defects in our judicial
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has failed to build a confidence in the concept of rule of system, then the adaption of rule of law not just
law.Even now more than 70% cases are solved outside theoretically or practically but on a spiritual level is
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the walls of courts. important.
There has been dissatisfaction between people and the

L In the words of Nani Palkiwala “Let us not pretend that the
legal system and this dissatisfaction has been increasing rule of law is a concept which can be regarded as a part of the
of
with time. A large section of people still do not get Indian psyche” and instead actually apply and live by the
justice served or if justice comes it comes too late. vision ancient Professors, philosophers had in mind.
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Problem of corruption, politics has failed rule of law,

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white-collar crimes, scams has all paved a path of failure Rule of law rather being detriment can help aid the
for rule of law in India. The government even after all nation from the harm caused by the arbitrariness, misuse
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the laws still is not subjected to checks or limitations, for of power. The intended results are yet to be achieved
e.g. though positive steps towards a better applicability of
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rule of law has begun the in the form of PIL and

• Case cannot be filed against a bureaucrat and recognition of Human rights, a long way still lies ahead
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diplomat in India. of the nation.

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• Criminal proceedings cannot be instituted India today stands as one of the largest democracy of
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against the president or the governor of a state in any the world and a reasonable nexus between democracy
court during the term of their offices and there lies no and rule of law yet needs to be established.
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process for the arrest or imprisonment of the President

or the governor of the state Thus, it can be concluded that rule of law is not the end
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rather it is the means for an end to impart justice which

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• The set of privileges enjoyed by the members is inconsonance with the people’s beliefs and leaves no
of the parliament with respect to legal actions. barriers for the smooth operation of democracy.
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• And establishment of separate tribunals for the

trial of administrative cases.
All this makes us doubtful of the present standing of the

nation on the concept of rule of law and its applicability.
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4
CONFUCIUS & VIRTUE JURISPRUDENCE

G.V. ATHIVAIDH
CONFUCIUS Lin cemetery which lies in the historical part of Qufu in
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the Shandong Province. Confucius is also referred to by
Introduction: other names, including "Laudably Declarable Lord Ni,"
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"Great Sage," "First Teacher," and "Model Teacher for
Confucius was a Chinese teacher, editor, politician and
Ten Thousand Ages."
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philosopher of the Autumn and spring period of
Chinese history. (551 – 479 BC ) 1 . He is one of the THE WORKS OF CONFUCIUS
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stalwarts of Eastern philosophy. The philosophy of
Confucius emphasized personal and government The "Analects" a book written by followers of
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morality, correctness of social relationships, justice and Confucius after his death, contains his thoughts and
sincerity. conversations, if not his precise words. Confucius would
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most likely approve, as he saw himself as a transmitter
Life & Works: who invented nothing.
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Confucius was born into the class of Shi 2 , between “Do not do unto others what you don’t want others to do unto
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aristocracy and the common people. He was married at you”4
the age of nineteen and worked as a shepherd. At the
age of thirty, he became respected as a great teacher. He Teachings:
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was appointed as the Minister of Justice as the ruling Lu
of
families 3 valued his ideas of proper conduct and Confucian ideals may seem conservative in our modern
righteousness in government. times. Confucianism is essentially humanistic. His
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disciples have compiled his teachings into a text called

The Shiji stated that the neighboring Qi state was the ‘Analects’ in 3-5 century BC.
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worried that Lu was becoming too powerful while

1. Five Constant Virtues:
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Confucius was involved in the government of the Lu

state. According to this account, Qi decided to sabotage
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Benevolenc Ritual Wisdom

Lu's reforms by sending 100 good horses and 80 e
beautiful dancing girls to the duke of Lu. The duke Propriety Zhi
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Rei Li
indulged himself in pleasure and did not attend to
Integrity Righteousnes
official duties for three days. Confucius was deeply
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s
disappointed and resolved to leave Lu and seek better Xin
nt
Yi
opportunities, yet to leave at once would expose the
misbehavior of the duke and therefore bring public Confucius suggested these five cardinal values to be
er
humiliation to the ruler Confucius was serving. Soon cultivated throughout one’s life, just like plants in a
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after, the duke neglected to send to Confucius a portion garden. He spoke about moral character and wisdom as
of the sacrificial meat that was his due according to the work of a lifetime. Confucius asserts that virtue is a
eI
custom, and Confucius seized upon this pretext to leave mean between extremes. For example, the properly
both his post and the Lu state.
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He died of natural causes upon returning from his exile,

at the age of seventy-two. Confucius was buried in Kong
1 Reigel, 2012 3 Lu dynasty

2士,Symbol for Shi 4 A Variant of the Confucian Golden Rule
*
5
generous person gives the right amount—not too much 5. Knowledge of Arts:
and not too little.5
Confucius believed that an educated person must be
“The strength of a nation derives from the integrity of the home” proficient in the Six Arts: archery, calligraphy,
computation, music, chariot-driving, and ritual
2. Filial Piety:
THE GOLDEN RULE
Confucius advocated strong family connections even
ce
though he reportedly spent little time with his. He The Golden rule is the most prominent rule attributed
believes we must obey our parents when we are young, to Confucius. Simply put, it is the principle of treating
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care for them when they’re old and mourn when they others as one would wish to be treated.
die. He even said that we shouldn’t travel far from our
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families, which is in stark contrast to our modern “Do unto others as you would have others do unto you”
individualistic society. He truly believes that moral life The idea dates at least to the early Confucian times (551–
pr
begins in the family. 479 BCE) according to Rushworth Kidder, who
ris
identifies that this concept appears prominently in
3. Obedience to Honorable People: Buddhism, Christianity 7 , Hinduism, Judaism, Taoism,
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Zoroastrianism, and "the rest of the world's major
Modern society is very egalitarian. We can do and say
religions".8
what we want. But Confucius believed in rigid status
&
hierarchy. He advocated respect to our superiors. The Golden Rule is widely accepted in philosophical
aw
circles as a solid base for secular morality. The only
“Let the ruler be a ruler, the subject a subject A father a father,
stumbling blocks it faces are masochists 9 , suicide
a son a son”
bombers and the differences in tastes among people10
L
We need to be modest enough to recognize people
of
In order to overcome these sticking points, the Golden
whose experiences and accomplishment outweigh our
Rule has spawned precious metallic sister and brother
own. “The grass must bend when the wind blows across it”
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variants, rediscovered in hundreds of moral traditions.11

referring to the obedience of inferiors to the superiors.
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The Silver Rule is “Don’t do to others what you don’t

4. Afterlife & Astrology:
want done to yourself”;
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Confucianism discusses elements of the afterlife and

The Platinum Rule, “Do to others what they would have
the existence of Heaven, but it is relatively unconcerned
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you do to them.”
with some spiritual matters often considered essential to
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religious thought, such as the nature of souls. However, According to Marc H. Bornstein, and William E. Paden,
Confucius is said to have believed in astrology, saying: the Golden Rule is arguably the most essential basis for
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"Heaven sends down its good or evil symbols and wise the modern concept of human rights, in which each
nt
men act accordingly".6 individual has a right to just treatment, and a reciprocal
responsibility to ensure justice for others12.
er
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5 Bonevac and Phillips 2009,40. 9 A person who enjoys an activity that appears to be painful
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6 Parkers (1983) or tedious.

7 ‘Do as you would be done by’ (Matt. 7:12) 10 Steven Pinker, Enlightenment Now- The case for reason,
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8 W.A. Spooner, "The Golden Rule," in James Hastings, ed. science, humanism and progress.
Encyclopedia of Religion and Ethics, Vol. 6 (New York: Charles 11 Terry 2008
Scribner's Sons, 1914) pp. 310–12, quoted in Rushworth M. 12 Defined another way, it "refers to the balance in an interactive
Kidder, How Good People Make Tough Choices: Resolving the system such that each party has both rights and duties, and the
Dilemmas of Ethical Living, Harper, New York, 2003. ISBN 0- subordinate norm of complementarity states that one's rights are the
688-17590-2. p. 159. other's obligation." Bornstein, Marc H. (2002). Handbook of
Parenting. Lawrence Erlbaum Associates. p. 5. ISBN 978-0-8058-
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6
However this was disputed by Leo Damrosch who of moral shame and moral dread in the initial stage of one’s moral
argued that to confuse the Golden Rule with human development.
rights is to apply contemporary thinking to ancient
concepts13. It is said that Buddhism upholds a theory of natural laws.
In this context the following three facts are significant
BUDDHISM AND LAW to be noted-
Right and wrong behavior in Buddhism14 is generally Firstly, it is significant to note that the theory of natural
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determined by considerations such as the following: law propounded in Buddhism by virtue of the fact that
en
karmic correlations are a special instance of causal
 Universality principle - "How would I like it if correlations in nature, which is an ordered system. So an
ud
someone did this to me?" individual must avoid evil and do good.
 Consequences - Does the act cause harm and
Secondly, Buddhism accept a natural law theory in
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regret (in oneself or others) or benefit and joy?
recognizing that man's conscience is generally aware of
 Utilitarian principle - Will the act help or harm the
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right and wrong even though conscience is admitted to
attainment of goals (ultimately spiritual liberation)?
be sometimes fallible
 Intention - Is the act motivated by love, generosity
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and understanding? Thirdly, Buddhism upholds a natural law theory in the
sense that it puts forward a social contract theory of the
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There are no Gods who have created the world. There origin of the state and all that it implies.
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is no ‘person’ in the sense of a metaphysical entity. In
Buddhism, the ruling class becomes the community of “Real Knowledge is to know the extent of one’s ignorance”
the people who have equal rights and delegate their
L
power to the state. Hear the concept of dharma CONFUCIAN VIRTUE
of
(righteousness) is superior and anterior to a Personal JURISPRUDENCE
God. In such a context the idea that the law should
Virtue Jurisprudence is the idea about the relationship
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safeguard the rights of the weak is radically transformed.

between law and virtue. In the Analects, Confucius
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In Buddhism the ‘person’ is a specific psycho-physical

argues that a society in which people are virtuous would
process who maintains a relative individuality, because
have no need of judges, rules or any kind of
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of its specific Vasana of performed deeds, within cosmic

jurisprudence, because people would be able to resolve
existence, despite the lack of a persisting substratum.
social conflicts by themselves. It is agreed that the idea
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The belief in the inherent goodness of man led of virtue is opposed to the idea of law.
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Buddhism to uphold that if man was educated in right

Chinese political theory to assume that truly selfless
and wrong, he is likely to be law-abiding. This belief
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people are virtuous to the point of martyrdom and

further led Buddhism to the abolition of capital punishment and
would not consider their own personal interests and that
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sometimes even corporeal punishment based on reformatory theory

the virtuous are able to transcend ideology. At the same
of punishment, only secondarily deterrent.
er
time, it also acknowledges the fact that most people,

This coincides with western Kantian ethics and also the including the emperor, are prone to corruption and
nt
ideas of John Locke. error. Consequently, there is a belief that law and
government are unfortunate necessities in dealing with
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Thus through the goal of Buddhism is a state in which there is imperfect people and the imperfect world.
freedom from fear, it recognizes the importance of cultivating essence
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3782-7. See also: Paden, William E. (2003). Interpreting the Sacred: 13 Damrosch, Leo (2008). Jean Jacques Russeau: Restless Genius.
Ways of Viewing Religion. Beacon Press. pp. 131–132. ISBN 978-0- Houghton Mifflin Company. .
8070-7705-4. 14 Buddhism and Law, Sandip K. Singh
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7
The view that the inculcation of Virtue is the proper end Confucian ethics incorporates both aretaic notions and
of legislation contrasts markedly with traditional deontological notions, postulating a harmonious unity
Chinese thinking on the subject, which argues that laws of the external rules and internal virtues. The deontic
exist because men are lacking in virtue. Confucianism and aretaic elements are unified by the social roles of
places very little faith on the ability of law or external agents; those roles govern relationships between
pressure to make men moral but rather believes that members of the community. The same agent might
virtue must come from introspection and education. occupy different roles in connection with different
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Confucian view on law was frequently contrasted in relationships. For example, a woman might be a mother
discourse and practice with Chinese Legality with regard to the relationship between her and her
en
philosophy. children and simultaneously a disciple with regard to the
relationship between her and her teacher.
ud
We are dealing with three conceptions, corresponding Thus, we can summarize as follows: Li prescribes rules
to the phrase ‘positive law’ and the ancient Chinese attached to roles. Ren is the cardinal virtue of humanity
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words Fa and Li. Fa in ancient China refers to the rules and the particular virtue of benevolence.
governing imposition of punishment; These rules did
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not create any legal obligations for the subjects. Li is a Li (Social norms) Role
form of social norm, including propriety, ritual, custom,
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etiquette and both customary and positive law. The Yi (Properly motivated to fulfill the responsibilities and
traditional view of Confucius attitude towards law is duties set by Li)
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characterized in his injunction to ‘eliminate litigation’.
Ren (Fundamental virtue)
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This is possible in a Confucian society.
“Choose a job you love, and you will never have to work a day in
“Life is really simple, but we insist on making it complicated”
your life”
L
CONFUCIAN SOCIETY
of
ENDS OF LAW
Confucius insists on preconditions of a lawless society.
al
Confucian opinions on litigation give us insight into

the ends of law. It is stated in the Analects that “In the
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 Each and every member of society would possess

practicing of Li, harmony is to be prized” 16 . This
sufficient virtue
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harmony has two aspects:

 The content of Li would have been framed by sage
kings  Harmony of Society
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 Li would be properly observed by the members of  Harmony of Individual.

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society.
Harmony of Society:
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Confucius did not believe in the concept of

"democracy", which is itself an Athenian concept The first aspect is the social Coordinative function of Li.
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unknown in ancient China, but could be interpreted by We might call this Coordinative harmony. It is
directed at harmony of society, where every person in
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Confucius' principles recommending against individuals

electing their own political leaders to govern them, or the community has a proper position regulated and
nt
that anyone is capable of self-government. He expressed guided by Li. In an ideal society, the dispute – resolution
fears that the masses lacked the intellect to make function of law is displaced by the law’s action guiding
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decisions for themselves, and that, in his view, since not role.
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everyone is created equal, not everyone has a right of

Harmony of The Individual:
self-government.115
15Schuman Michael- “Confucius and the World He 16 Confucius (1971:143)

Created”
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8
The second aspect of law is based on the premise that virtuous society of Confucius, all the subjects have a
societies will function better if the rules of law are the sense of ethical shame.
object of Voluntary Compliance by the individual. We
call this autonomous harmony, where the individuals “The man who makes a mountain begins by carrying away small
can express their emotions and exercise their virtues stones”
smoothly, without creating a breach of Li. This satisfies
the two elements required by the general concept of
INTERNATIONALISATION THESIS
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autonomy proposed by Gerald Dworkin: Confucian theory of law talks about the internal aspect
of Li, where the subjects in the society internalize and
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 The ability to perform, based on higher- order
imbibe the laws as virtues.
critical reflection.
ud
 The freedom to lead a good life without direction “If the people be led by Government regulations and
from others. punishments, they will try to avoid the punishments, but have no
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sense of shame. If they be led by virtue and Li, they will have a
Ren (Virtues) and Li (Social norms) must be mutually
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sense of shame and will reform themselves.”19
supportive. This harmonious state is conveyed in
Confucius remark on his own experiences of self- Confucian attitude towards positive law is based on the
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cultivation at seventy; he could follow what his heart premise that the normative system, be it morality, social
desired without disobeying the rules.17 norms or positive law, functions well if and only if it is
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able to guide the behavior of citizens. The Confucian
“To be wealthy and honored in an unjust society is a disgrace.”
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theory assigns a central role to the subjects of the law,
in determining the ability of norms to guide law. In a
NATURE OF LAW
Confucian society, the legal actor’s motivational states
L
Some scholars argue that Confucian theory of law can and their knowledge of law should be in a harmonious
of
be seen as the Chinese version of natural law18. Natural relationship. If the content of the legal rule is fully
law theory claims that moral facts determine legal understood by the legal actor with a proper motivational
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content. Confucian theory is both positive as well as state in place, then we would say this rule has been
rn
normative theory of law. internalized.
The Duke of She told Confucius. ‘There is an upright

ou
In a well-functioning rule of law society, according to

Confucian thinkers, a sufficient number of people man among my people. His father stole a sheep, and he
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possess the virtue Yi. These virtuous citizens perform testified against him.’
law governed actions for the right reasons and with the Confucius replied, ‘Among my people, those we
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right motivational attitudes, one of which is shame. consider “upright” are different from this: fathers cover
up for their sons, and sons cover up for their fathers.
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Shame can be divided into two sub categories: This is what it means to be “upright”. 20
nt
 Conventional shame Our interpretation is that the strong emotions of love

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 Ethical Shame and affection that a good son has towards his father
override the civic duty to report a trivial case of theft.
nt
A person with a sense of Conventional shame only One of the basic presumptions of Confucian virtue
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conforms to the rules because he is afraid of the social ethics lies in its role based character, so moral
pressure generated by rule-breaking behavior. Someone requirements differ according to the roles an agent
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with ethical shame abides by the rule because he thinks possesses in her ethical relations. Because the son is in
it is wrong to break the rule. According to the ideal this special relation to his father, he should care more
17 Confucius (2001:5) 19 Confucius(1971:146)

18 Needham (1956:544) 20 Confucius(2001:36)
*
9
deeply for his father than should ordinary community For example, if a person does not wear a helmet while
members. riding, is he morally mad? Does that say anything about
his character? He may be a very virtuous person who
MY THOUGHTS ON CONFUCIAN helps a lot of people but finds wearing helmets an
VIRTUE JURISPRUDENCE inconvenience. Paternalistic laws like wearing helmets
do not point to a person being immoral or criminal.
Do We Owe Our Parents a Moral Duty?
Ethical Shame
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I disagree with the Confucian notion that we owe our
parents a moral duty simply by virtue of being related by
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The Confucian ideal of ethical shame is interesting.
blood. Sure, if our parents have taken care of us, While playing violent video games like GTA, children
ud
provided for us, we ought to take care of them. But there and adolescents do not abstain from activities that are
are abusive parents in the world to whom, I think their looked down upon in conventional society like murder
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kids owe no filial piety. and robbery. Although these actions in a video game are
said to be therapeutic to kids by psychologists21 , it is an
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Also, if her son commits a heinous crime like rape, is a
interesting character study of what people will do when
mother supposed to shield him from the clutches of law
there are no laws and no threat of punishment. Do
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or turn him in?
people commit these heinous acts in games because they
Do Elders Deserve Respect? think they NPCs are not real people and nobody gets
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hurt by their actions or is it because there are no
In the modern egalitarian society, it is arbitrary to give deterrents to stop them?
respect and bend to the will of elders simply because
they have lived longer than us. Sure some of them are
wise, but aging is not an esoteric accomplishment that is
L aw “Silence is a true friend who never betrays”
CRITICISM OF CONFUCIUSS’
of
unattainable to other people. Though I respect my
elders because of my conditioning, I don’t expect people VIRTUE JURISPRUDENCE
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younger than me to give me any sort of special

obedience just because I was born before them.  Virtue jurisprudence does not provide sufficient
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guidance for the making of legal decisions.

“Let the ruler be a ruler, the subject a subject A  “Do as a Virtuous Judge would do” provides little
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father a father, a son a son” instruction to an ordinary decision maker.

 Virtue Jurisprudence requires inordinate trust in
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This Confucian quote can easily be used to enforce

capacities of Judges.
caste, class and gender hierarchy in society because it
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 It is an idealistic and utopian theory being applied

tries to deter people from challenging existing social
to imperfect human beings.
patterns. This is directly opposed to the egalitarian just
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social order that is shaped by people challenging the  The social norms vary from society to society. The
nt
oppressive social hierarchy of the past. filial sentiments may not be as strong in modern
societies as it were in Ancient China.
er
Morally Neutral Laws  The theory states that the content of law should be
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restricted to those legal rules that have morally

Virtue Jurisprudence assumes and applies to only laws significant content. Therefore, technical rules like
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with a hint of morality. It ignores laws like traffic rules, traffic rules, property rights, laws of trade and
taxation laws, property laws which are devoid of moral commerce, taxation are excluded from the content
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essence. of law.
21 https://www.psychologytoday.com/us/blog/geek-
pride/201011/violent-video-games-are-good-you
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10
 Confucius’ Virtue of filial piety is vague and it is

not sure whether it is a universal principle. Let’s
imagine that his father has conducted a crime of
manslaughter, then what would Confucius say
about this? We do not know, but Confucius would
probably not suggest that the son cover up the
father’s crime in this case.
ce
“When anger rises, think of the Consequences”
en
CONCLUSION
ud
After Confucius’ death, his students built many temples
pr
and schools in his honor. Today, millions of people still
follow his teachings; His thought has been a huge
ris
influence on eastern political ideas of obedience,
morality and leadership. The core of his virtue
Ju
Jurisprudence is the account of law’s function i.e.
creation of social order based on coordinative and
&
autonomous harmony. The aim of law is to provide a
social order that rests on norms that can be internalized
by autonomous agents.
We might find Confucian virtues strange and old-

L aw
fashioned, but we need them as a corrective to our own
of
excesses. The modern world is totally non-Confucian,

informal, egalitarian, and full of innovation, which
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leaves us at risk of becoming impulsive, irreverent and

rn
thoughtless. Confucian ideas strike a balance between

legal positivism and natural law theory. His thoughts,
ou
though archaic are much relevant to our modern times

of sinful excess and greed.
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na
io
nt
er
nt
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11

UNCOVERING THE TANGIBLE EFFECT & REAL IMPACT OF JUDICIAL DECISIONS.
ANGAD SINGH MAKKAR
ce
“Legal interpretation takes place in a field of pain and death.”1 justification to the judge and others of the key role the
judge plays in the consequential act of physical violence.
en
INTRODUCTION Cover posits that what on first glance may come across
as mere interpretation and offering of one’s
ud
Through this succinct and hard-hitting rhetoric, Cover understanding of the legal word, and the normative
is able to highlight that one aspect of interpretative law- values associated with it, is actually engagement and
pr
making which is immensely critical and intrinsic to it, yet enforcement of a “violent mechanism through which a
at the same time is often ignored and implicitly
ris
substantial part of the [intended] audience loses its capacity to
normalized: the direct nexus between the act of legal think and act anonymously”4. Be it due to the overarching
interpretation and the violence that ensues. This is
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practical aspect of this activity, its position in a system
primarily the notion that Robert Cover brings to the fore authorizing hierarchized enforcement of violence or the
and expounds upon in “Violence and the Word”, a
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law’s inevitable malleability to the “conditions of effective
deconstructionist work which goes beyond the mask of domination”5, legal interpretation can never be restricted
aw
judicial rhetoric, and uncovers the tangible effect and to, nay understood in the narrow sense of grasping the
real impact of judicial decisions. In doing so, Cover meaning and social context of the word of the law.
delves into the fundamental assumptions behind these
L
Instead, one must necessarily view this act of “bonded
acts of legal interpretation, the degree of social interpretation” (bound to the conditions of effective
of
cooperation involved in them and even the arguably domination and to practical application) 6 in lieu of all
innate violence of law to put forth his analysis. This that it entails, i.e. transforming into actual violence and
al
paper aims to view, Cover’s insightful work in light of action, overcoming normative inhibitions against
rn
other claims grounded in deconstructionist theory, put violence, and deterring revenge and retribution to this
forth by eminent post-modernists such as Jacques violence by shrouding it in the mist of systematic
ou
Derrida; and evaluate the veracity of his claims through organization and hierarchized roles.
this lens.
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JURISPRUDENTIAL UNDERPINNINGS
Cover seeks to demonstrate the strong link between
na
epistemic violence and physical violence; a link that is A basic perusal of Cover’s text illustrates the blatantly
paradoxically both unmissable and yet easy to miss. To
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deconstructionist approach he has adopted, and one

do so, he showcases the actual impact of judicial must then necessarily understand this text in light of the
nt
interpretation by unmasking the layer of justification it theories of post-modernism and, particularly, the
attempts to lend to its implementation of actual
er
jurisprudential school of deconstruction. Tracing the

violence. The obscuring of this nexus between the two roots of post-modernism to the post-World War II era,
nt
aforementioned forms of violence, he argues, would be the notion of post-modernism arose as a response to the
“precisely analogous to ignoring the background screams or visible ordered and manageable grand theories of that epoch,
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instruments of torture in an inquisitor’s interrogation.” 2 He and instead shifted the focus to the “fragmentary and
derides the usage of “broad interpretive categories such a blame
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or punishment”3, the meaning of which merely serves as
1 Cover, R. (1986). Violence and the Word. The Yale Law 4ibid p.1615
Journal, 95(8), p.1601 5ibid p.1616
2ibid p.1608 6ibid p.1617
3ibid p.1608
*
12
complex nature of existence”7. Post-modernists, such as the eschews conventional ideologies of power, which view
eminent Jean-Francois Lyotard, disregard the power as merely a commodity that one possesses and
importance placed upon ‘meta-narratives’, which claim through which basic hierarchies of individuals are
validation from a higher, all-encompassing domain of formed. Rather, Foucault proposes an analysis of power
thought, and argue for the “heterogeneity of discourses” and which understands power to be circulated or
“challenge pre-existing methods of legitimation” 8 .They argue functioning in the form of chain, as something that is
that the nature of interactions between an individual and “employed and exercised through a net-like organization” 12 .
ce
society is intrinsically such that it is bound to culminate Essentially, Foucault emphasizes upon an individual’s
in “different effects of social organization which form a fabric or position in the existing social network, and how that
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network of relations”9; to reduce these varying influences position determines and constitutes him or her as an
and experiences to a few grand theories, or meta- individual with power13.To shun questions pertaining to
ud
narratives, is ergo extremely problematic. Post- the overall strategy behind domination exercised by one
modernism constantly questions the established notions supreme individual or group of individuals, in favor of
pr
of traditional knowledge, and attempts to reconstruct queries regarding certain gestures and certain discourses
ris
what we regard as ‘true’ or ‘real’ 10 . In doing so, it through which individuals are identified and constituted
promotes a culture fueled by a restless inquisitiveness, is what Foucault espouses 14 . Thus, power in a legal
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constantly digging beyond the surface of traditional, and system cannot merely be seen in the traditional form asa
previously unquestioned, theories of knowledge. hierarchy of people authorized and empowered to make
&
Margaret Davies, in her work ‘Asking the LawQuestion’, decisions on the basis of a pre-existing legal order;
expertly elucidates upon the theory of post-modernism instead, it must also take into account the social
aw
by taking up the example of law and the legal system. connotations of this power and the manner in which it
Herein, she showcases the multitude of layers that co- L is circulated at “the level of on-going subjugation”15.
exist within the fundamental idea of a ‘legal system’, be
it the nature of proceedings in the court or the manner Nonetheless, any analysis of Cover’s text must be
of
in which the police operates. To formulate an spearheaded from a deconstructionist perspective,
overarching and all-encompassing picture of the same, which attempts to engage in “detailed and particular
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which neglects the diverse experiences within each of questioning and the reconstruction of fundamental modes of
rn
these layers, would amount to an “imposition of a dominant thought”16. Though this school of thought is oft criticized
(and falsely external) point of view”11. Thus, in the context of as merely a new rendition of ‘nihilism’, in the sense that
ou
a legal system, post-modernism reworks the traditional it puts forth relativist perspectives and provides no
discourse pertaining to the concept of legitimacy, from transformative value, such a view underestimates the
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one seeking validation through a universal and over- importance of throwing light upon the socio-political
intricacies of concepts we take for granted. The
na
arching narrative (for instance, Kelsen’s Grundnorm or

Austin’s formulation of a sovereign) to one that can be relationships between notions of law, justice and force
io
defined as the culmination of the intricate and layered are prime examples of the aforementioned problem, and
relationships that constitute the law. there is ample room for deconstructionist thought in
nt
this field, as has been highlighted by Jacques Derrida’s

One can even analyze certain aspects of Cover’s text “Force of Law: The ‘Mystical Foundation of
er
from a post-structural Foucaultian perspective, wherein

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Michel Foucault expounds upon the social context

within which power must be observed. Foucault
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7Davies, M. ed., (1994). Postmodernism and Deconstruction. 12Foucault Lecture Two: 14 January 1976 (Michel Foucault,
In: Asking the Law Question. Law Book Company, pp.325-385. Power/Knowledge (Harvester Press, Brighton, 1980), pp.93-
8Davies p.335 102)
9ibid p.335 13supra n6 p.362
16supra n6 p.376
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13
Authority’” 17 .Derrida intriguingly propounds that granted, Cover argues that one must still acknowledge
“violence is not exterior to the order of law”18, and through and fathom the various conditions which determine the
such a proposition, he argues that the biggest threat to success or failure of this cooperation25. Even within the
the law and existing legal order already belongs to the realm of legal interpretation conducted purely by judges,
“right to law (au droit au droit)” and “to the origin of Cover points out the numerous social factors that judges
law”19.The source of all states, the very foundation of must take into account while reaching a decision; for
their legal order then is attributed, by Derrida, to the instance, a judge in the trial court must consider the
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existence of violence.Furthermore, one can observe the possibility of his decision being reversed, or a judge in
potential for force, in its conventional brutal form or an appellate court must attempt to get the support of
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otherwise, to be “the result of a complex discursive structure”20. another judge on the bench26. This aligns with the post-
As Davies explains, the law enforces its own meanings modernist approach built upon earlier, wherein one
ud
and ‘legal’ interpretations of an event by re-casting, re- avoids putting forth a universal meta narrative that
phrasing and re-viewing the experience of a layman; a claims to capture and standardize all experiences within
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process which usually culminates “with a sense of alienation a particular setting. Cover does nothing of the sort, and
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experienced by the individual in relation to the law”21. As can be instead, throws light upon the diverse experiences and
seen above, deconstruction attempts to delve into more roles within a legal system, be it in different layers
Ju
than what simply meets the eye, and, in doing so, bring (police, warden, jailer et al) or even within the same layer
to the fore those underlying ideas that are often the (trial court judge or appellate court judge).
&
driving force behind the impugned action; it’s
fundamental premise involves “suspending the imperatives of Similarly, Cover’s text also reflects the Foucaultian
aw
a theory, text, or mode of perception in order to reinvent it analysis of power highlighted above. He doesn’t simply
differently”22. state that judges possess power, in the context of legal
interpretation, due to their position in the hierarchy of a
L
RELEVANCE TO THE TEXT legal system. Nor does he deem the act of a judicial
of
utterance to be analogous to the exercise of power by a
As mentioned earlier, segments of the aforementioned supreme individual, determined primarily by personal
al
three theories can be observed in the general theme of motives and purposes. Contrarily, Cover takes into
rn
Cover’s text, as he primarily discusses the undertone of account the social element behind the whole concept of
actual violence which accompanies a judicial utterance legal interpretation, detailing the experiences of the
ou
and the social mechanisms which provide a conducive judges, wardens, police and even the prisoner. He
setting for this act of judicial interpretation of law. recognizes that even the prisoner being sentenced by the
lJ
Particularly, one can noteCover’s emphasis upon the judge might possess the power to potentially organize
decisions by Judge Herbert Stern in United States v. force against his imprisonment; yet, he refuses to wield
na
Tiede 23 , wherein Stern illuminated upon the roles of this power due to the inevitable overpowering of it by
numerous actors in the transformation of the judicial
io
the judge and other actors within the legal system, which
word into a punitive deed (performance of violence of more often than not will result in the prisoner being
nt
punishment upon a defendant) 24 . It is the lawyers, beaten and dragged to jail 27 . Furthermore, even the
police, jailers, wardens, and magistrates who provide power of a judge can be traced to the suppression of an
er
social cooperation which ultimately leads to the autonomous “conscience” in favor of the social
nt
execution of the punitive deed authorized by the judicial organization of individuals into formal structures, i.e.
word; while this cooperation is normally taken for the willingness of the warden, for instance, to pay
eI
Th
17 J.Derrida, “Force of Law: The ‘Mystical Foundation of 22ibid p.382

Authority’” in D. Cornell, M. Rosenfeld & D.G. Carlson 2386 F.R.D. 227 (U.S. Ct. for Berlin 1979)
(eds.), Deconstruction and the Possibility of Justice (1992) 24supra n1 p.1620
18ibid p.268 25ibid p.1620
19ibid p.269 26ibid p.1627
20supra n6 p.378 27ibid p.1607
21ibid p.378
*
14
automatic heed to the judicial utterance in recognition law. The adoption of “broad interpretive categories such as
of the social structure of the legal system 28 . If the ‘blame’ or ‘punishment’”32, illustrated by Cover to be geared
wardens were to cease in these acts of obeyance, the in favor of justifying the judge’s acts, is testament to the
judges would be “left with only the opportunity to persuade the aforementioned argument. Therefore, the
wardens and their men to do violence”29. Thus, it is blatantly deconstructionist motive underpinned in Cover’s text is
evident through Cover’s work that power in the abundantly clear, as he exposes the actual violence and
contemporary legal system is not a commodity force that judicial rhetoric and the act of legal
ce
possessed and employed by a select few, rather it is interpretation entail.
prevalent at even the lowest rungs of the system. Cover
en
would agree then that power is truly circulated CONCLUSION
throughout each layer of the system, and functions, to a
ud
certain extent, in the manner Foucault had envisaged. Through the posing of arguments built upon post-
modernist and deconstructionist schools of thought,
pr
Finally, one can deduce a strong link between the with substantial usage of Foucault’s analysis on power
deconstructionist thoughts of Derrida and the revealing and discourse, Cover has effectively managed to
ris
perspective of judicial interpretation proposed by showcase the direct nexus between an act of legal
Cover, though there are key dissimilarities between the interpretation by a judge and the actual violence that it
Ju
two. Whereas Derrida deems the very premise of a legal triggers. It is key to note however that his work is not a
order to be founded upon violence, Cover focuses his rejection of the “balance of terror” 33 enforced by the
&
analysis chiefly upon the interplay between legal rhetoric modern legal system, rather it is an attempt to illustrate
aw
and violence. Derrida sees the framework of law as the actual workings of the system and to enlighten
intrinsically connected to violence, and Cover, perhaps readers about the frightening ability of language to alter
implicitly accepting Derrida’s view, discusses the our conception of reality. Ergo, Cover’s text is a crucial
L
manner in which the law (specifically, the judicial word) piece of jurisprudential thought, in so far as it highlights
of
sanitizes or domesticates violence 30 . To indulge in a the social complexities embedded within acts of legal
botanic analogy, Derrida highlights the root of the interpretation, the circulation of power within the legal
al
problem, and Cover builds upon this by shedding light system and the overarching element of violence imbibed
rn
on the branching out of the same. in the law.

ou
Furthermore, legal rhetoric remains particularly “The judges deal pain and death.”34
problematic as it perpetuates the use of force in a
lJ
disguised manner, so as to subvert the autonomous

inhibitions of an individual against the use of force and
na
violence, and consequentially, facilitate regulation of

human behavior by the state in an efficacious manner.
io
The tangible impact of the judicial word is immense;

nt
“people are thrown in prison, ordered to sell their businesses, forced

to give up their children, or sentenced to lose their lives”31. Yet,
er
words conceal and dilute these facts. The general

nt
discourse adopted is also of such a nature that it

necessarily prioritizes the judge’s perspective and
eI
interpretation over that of the defendant, who, as

Davies points out, is rendered alienated in relation to the
Th
28ibid
p.1626 31ibid p.1900
29ibid
p.1626 32supra n1p.1608
30Minow, M. (1987). Interpreting Rights: An Essay for Robert 33ibid p.1608
Cover. The Yale Law Journal, 96(8), p.1860. 34ibid p.1609
*
15

LITHA ELIZABETH GEORGE
INTRODUCTION Redressal of Public Grievances Rules,1998 also

stipulates that these rules shall apply to all the
ce
The word grievance is defined as the cause for insurance companies operating, i.e., it includes general
en
complaint or unfair treatment. Grievance is insurance and life insurance business. It is also
dissatisfaction of customer on a product or service provided that the Government reserves power to
ud
offered by a manufacturer or a service provider 1 . exempt any company from the provisions of the
Ombudsman, the Swedish word means the right of Redressal of Public Grievances Rules if it is satisfied
pr
individuals against public authority2. The institution of that such insurance company has a grievance
Ombudsman was setup in the insurance industry in redressal cell which fulfills the requirement of those
ris
India for the speedy disposal of the grievances of the rules6.
insured in the contract of insurance. The institute of
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Ombudsman in the insurance sector was recommended POWERS OF INSURANCE
by the Malhotra Committee. OMBUDSMAN
&
INSURANCE OMBUDSMAN: LEGAL The basic function of insurance ombudsman is redressal
aw
PERSPECTIVES of grievances cost effectively, efficiently and in an
L impartial manner. The insurance ombudsman has two
The Malhotra Committee, which was setup in 1994 types of functions to perform7
to recommend insurance sector reforms, while
of
recommending privatization of the insurance sector, 1. Conciliation
also acknowledged the need to protect consumers’
al
2. Award making
interests and recommended setting up of the
rn
institution of Ombudsman, with a view to reducing The insurance ombudsman is empowered to receive
avoidable litigation and resultant delays in redressing and consider complaints in respect of personal lines
ou
customer grievances.3The Insurance Act,1938 have of insurance from any person who has any grievance
conferred power upon the Central Government to against an insurer.8
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make rules to carryout the purposes of the Act. In

The Ombudsman have the power to receive and
na
exercise of these powers, the Central Government

framed the Redressal of Public Grievances Rules, consider complaints, conferred by Rule 129 and the
io
1998. The object of these rules are to resolve all complaint may be in connection to or against the
complaints relating to settlement of claim on the insurer filed under Rule 13 10 and also includes
nt
part of insurance companies in cost effective, complaints with regard to;

er
efficient and impartial manner. 4 Rule 2 5 of the

nt
1 Rajesh K. Yadav& Sarvesh Mohania, Role of Insurance

4 Redressal of Public Grievances Rules,1998, Act no:41 of
1999,Acts of Parliament
eI
Ombudsman and Grievance Management in Life Insurance 5 Id

Services in Indian perspective, INTERNATIONAL 6 Id
Th
7 INSURANCE REGULATORY AND DEVELOPMENT

LETTERS OF SOCIAL AND HUMANISTIC SCIENCES
(April 15, 2018, 12:54pm), AUTHORITY OF INDIA, Functions of Ombudsman,
(April 15, 2018, 5:38pm),
https://www.scipress.com/ILSHS.31.9.pdf https://www.irdai.gov.in/ADMINCMS/cms/NormalData_
2 K S MURTHY & Dr. K V S SARMA, MODERN LAW OF Layout.aspx?page=PageNo233&mid=7.1
INSURANCE 355 (4d ed. 2010) 8 Id
3 DR. G GOPALAKRISHNA, SOCIAL SECURITY, 9 Supra Note 6
INSURANCE AND THE LAW 303-304(1d ed. 2011) 10 Id
*
16
a. any partial or total repudiation of claims by the not intimate his acceptance, the award is not binding
insurance companies. on the insurer.15
b. dispute with regard to premium paid or payable in DUTIES OF OMBUDSMAN

terms of the policy.
a. The Ombudsman may ask for necessary
c. dispute on the legal construction of the policy evidences in support of the claims of the parties
wordings in case such disputes relates to claims. such as proposal form, receipt of premium paid,
ce
policy document etc.16
d. delay in settlement of claims and,
en
b. He can also ask the factual information available
e. non-issuance of any insurance document to
ud
to the insurer if it is necessary.17
customers after receipt of premium.11
c. He should settle or dispose the dispute within
pr
According to Rule 12 (2) the ombudsman can also act
3 months of the receipt of the complaint.18
as a counsellor and mediator in matters which are within
ris
his terms of reference and also if it is requested by the d. Ombudsman shall pass an award only up to
mutual consent of both insured and the insurance Rs.20 Lakhs including ex gratia19 payment and
Ju
company in writing. the award shouldn’t be in excess of the actual
amount of losses suffered by the complainant
&
The complainant shall give the complaint in writing,
either the insured or his legal heirs can file the e. The award shall be in writing and shall specify the
aw
complaint. The complaint must contain relevant details amount.
of the insurer and relevant documents to substantiate
L
the cause of action of the complaint. And other f. A copy of award must be sent to both the
necessary details and data shall be collected by him from complainant and the insured.
of
the complainant or the insurer. The complainant shall

give the complaint directly and no lawyers are required g. It is the utmost duty of an ombudsman to dispose
al
of a compliant fairly and equitably.20

to represent either parties, i.e., the parties shall appear in
rn
person.12 h. A report shall be submitted to the Central

ou
Government every year containing a general

The recommendations made by the Ombudsman is
review of his activities.21
binding on the insurer only if it is accepted by the
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complainant. It is not binding on the insurer if the

CONSUMER REDRESSAL FORUMS
na
complainant does not give his consent to the

award. 13 The acceptance of the award must be Consumer Redressal forums are established by the
io
communicated to the insurer within one month., ‘a Central Government for the redressal of grievances of
letter of acceptance that the award is in full and final the consumer. Whether policy holder is a consumer and
nt
settlement of his claim’14. If the complainant does whether insurance service comes under the purview of
er
‘service’ defined by the CP Act are the two important

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11 Supra Note 9 19 Supra note 19

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12 Dr. G. GOPALAKRISHNA, SOCIAL 20 Mr. Kshitij Dua, AN ANALYSIS OF THE POSITION

SECURITY,INSURANCE AND LAW 306 OF OMBUDSMAN IN THE SPECTRUM OF A.D.R,
Th
13 Id at 305 Manupatra Articles,(April 22, 2018, 6:55 pm),

14 Supra note 2 at 357 http://www.manupatrafast.com/articles/PopOpenArticle.as
15 Id px?ID=192726ff-4a3c-4cec-874a-
16 Id b8134699f9e6&txtsearch=Subject:%20Miscellaneous
17 Id 21 Supra note 16
18 SACHIN RASTOGI,INSURANCE:LAW AND
PRINCIPLES 431
*
17
questions that must be answered. The definition of whether to give consent and comply with those
‘Service’ in the Consumer Protection Act specifically or not whereas in case of Consumer Redressal
includes within its scope the provision of facilities Forums the decision is binding upon both the
in connection with insurance and a policy holder parties.27
thus is included in the concept of consumer.22 They
can function as an alternative for the grievance  There is provision to appeal against the
redressal from Insurance Ombudsman. A consumer recommendation or award of the Insurance
ce
can approach the Consumer Forum within its Ombudsman in case the parties are not satisfied
pecuniary and territorial jurisdiction for any while in case of Consumer Redressal Forums
en
deficiency in service by an insurer.23 the parties can always appeal if they are
aggrieved by the Order.28
ud
The object behind Consumer Protection Act,1986 is
same as that of the Redressal of Public Grievances  The Insurance Ombudsman is not a judicial
pr
Rules, 1998 are similar. The very purpose in making authority thus it do not have any powers vested
this social welfare legislation (CP Act) is to give upon the Courts whereas Consumer Forums are
ris
simple, cheap and speedy redressal to the needy vested with powers as of a Civil Court in
consumer.24 India.29
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COMPARING CONSUMER REDRESSAL  The rules regarding the enforcement of the
&
FORUMS AND INSURANCE award or recommendation of the Ombudsman
OMBUDSMAN is absent in the Redressal of Public Grievances
The following are the major differences between the

two kinds of redressal agencies:
L aw Rule,1998 whereas the CP Act itself has
provisions which gives remedies in case of
noncompliance with the Order given by the
of
Consumer Redressal Forum.30
 An Insurance Ombudsman can address the issues
only within the scope of Rule 12 of the 
al
The Insurance Ombudsman has the authority to

Redressal of Public Grievances,1998 while the grant ex gratia while the Consumer Forum is
rn
Consumer Forum can address any issue if it not vested with such power.31
amounts to ‘deficiency of service’25.
ou
 The Ombudsman will not entertain the complaint if

 The award of compensation is limited to Rs. 20 the subject matter is pending before any other
lJ
lakhs and any award exceeding it is beyond the redressal agencies such as Consumer Forum or
jurisdiction in case of Insurance Ombudsman
na
other Civil Courts. 32

whereas the National Consumer Dispute
io
Redressal Commission there is no such EFFECTIVENESS

limitation.26
nt
During 2016-17, the Seventeen Ombudsmen centers

 The recommendation or award by the spread across India have received a total of 27627
er
Ombudsman is at the option of the complainant complaints.33 This was in addition to 2693 complaints
nt
eI
22 K S N MURTHY & Dr. K V S SARMA, MODERN LAW 29 Id

OF INSURANCE 361(4d ed.2010) 30 Id
Th
23 Dr. G. GOPALAKRISHNA, SOCIAL 31 Id at 309
SECURITY,INSURANCE AND LAW 308 32 Id at 309

24 Supra Note 34 at 366 33 CONSOLIDATED ANNUAL REPORT OF THE
25 Supra note 34 at 361 OFFICE OF THE GBIC AND THE OFFICES OF THE
26 Id INSURANCE OMBUDSMAN FOR THE YEAR ENDED
27 Supra note 35 31.03.2017, OFFICE OF THE GOVERNING BODY OF
28 Id INSURANCE COUNCIL.
*
18
pending with various offices of Ombudsmen as at the While comparing with other redressal agencies,
end of March 2016. 34 During 2016-17, Ombudsmen Ombudsman first attempts to dispose the complaint
disposed of 27990 complaints. 35 through mediation with mutual consent of the parties
Awards/recommendations were issued for 26.87 and make recommendations according to the subject
percent of total complaints. Other than this, 7.01 matter of the issue. The complainant has the option to
percent of the complaints were withdrawn/settled, consent or not to, to the recommendations of the
while nearly 9 percent of the complaints were dismissed. Ombudsman and if he agrees, through his consent it
ce
2330 complaints were pending as on 31st March, 2017. becomes binding on the insurer and the insurer do not
According to this data, as on March 2017 only 2330 have the right to appeal against the recommendation.
en
complaints are pending out of 30,320 total cases.
If the complaint is not redressed through mediation the
ud
ANALYSIS Ombudsman have the authority to pass an award with a
reasoning and which is fit and fair based on the
pr
The Redressal of Public Grievances Rules,1998 gives the circumstances and issues involved in the case. The
regulations according to which the institution of award passed by the ombudsman shall not exceed the
ris
Ombudsman works or acts. These rules make it clear amount of Rs. 20 lakhs including ex gratia and other
that the purpose is to render cost effective and speedy expenses. The award may or may not be accepted by the
Ju
disposal of grievances in the insurance sector. The most complainant., and once accepted by the complainant
important aspect is that Ombudsman is that it is not becomes binding on the insurer. If it is not accepted by
&
judicial body. There are alternate redressal agencies like the complainant it is not binding on the insurer, but
the Consumer forums and various powers have been
aw
once accepted by the complainant it becomes binding
conferred upon them. Even though Consumer on the insurer and he must comply with it. The
Protection Act includes insurance services in the ambit Ombudsman is not empowered to take further actions
L
of ‘service’ defined in the Act the fact that Insurance on noncompliance of the award or recommendation., he
of
Ombudsman is a dedicated scheme for redressing is not a judicial body thus cannot take any action on
insurance grievances and it is much more cost effective contempt when his recommendations are not complied.
al
for the common man to approach should be considered. This is the contradicting side of the rules; after consent
The platforms like Consumer Forums are much more
rn
from the part of the complainant the award becomes

judicial in character and thus time consuming and not binding on the insurer but on noncompliance with
ou
cost effective while comparing with the Ombudsman award or recommendation there is no power to take
scheme. And Consumer Forums are for consumer actions on it.
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grievance redressal and it includes almost all kinds of

service which makes it difficult to address the issue CAN THE INSURER APPEAL?
na
within a limited time period. The data released by the

IRDA in the annual report shows that Ombudsman The Redressal of Public Grievances Rules,1998 do not
io
receives a considerable number of complaints and confer any right upon the insurer to appeal against the
nt
majority of the cases are settled or disposed within recommendation or award given by the Insurance
considerable time. It should be thus inferred that it is Ombudsman. If the consent is given by the
er
working in absolute compliance to the rule which complainant the award or the recommendation
becomes binding on the insurer and must be
nt
envisages the Ombudsman to dispose or settle the

complaint within 3 months of time period. complied within 15 days of the receipt of the
eI
consent.36 It is also stated that it does not debar

him to move to the High Court under Article 226
Th
of the Constitution of India.37
34
Id 36 Supra note 6
35 Id 37 Supra note 15 at 307
*
19
This question regarding the appeal and the writ petition to approach the consumer forums incase not satisfied
was a major issue in many cases. with the award or recommendation of the Ombudsman.
In a recent case38 the issues in question before the This seems arbitrary to the insurer and it is against the
Court where natural justice since the insurer is not also given the
option of appealing against the order of Ombudsman.
1. Whether the order passed by the respondent It is against the right to a ‘fair hearing’. Insurance
Insurance Ombudsman is sustainable and
ce
Ombudsman is a platform for redressal which
tenable...? 39 and allows no advocates either on behalf of the
en
complainant or the insurer. Thus, the interpretation of
2. Whether the order passed by the Ombudsman
law and analyzing the law and its various ambits have a
warrants any interference of this Court
ud
very limited scope, which makes it ambiguous.
under Article 226 of the Constitution of India.?40
pr
We must understand Insurance Ombudsman as a
The Hon’ble High Court of Andhra Pradesh after
welfare scheme to help insured incases of rejection of
analyzing Redressal of Public Grievances Rules, 1998
ris
claims. Such a cost effective scheme was identified for
gave the ruling.
the common itself and IRDA makes it clear that it
Ju
While analyzing the judgement, the inference is that the addresses personal line services only which does not
scope of a writ petition against the award by the include any Corporations. Thus, in case of complaints
&
Ombudsman is very limited and unless the findings of there will always be a presumption in favor of the
the Ombudsman are completely unfair and intensely complainant because of the whole objective of the
unreasonable and the Ombudsman have acted beyond
the jurisdiction conferred upon him. And also they
L
must be in violation to the principles of natural justice
aw
scheme. In such a scenario if the insurer is not given the
option to appeal it becomes unfair. It is thus erroneous
to not to have any scope of appeal by the insurer
of
then only the Court can interfere under Article 226 of against the award or recommendation of the
the Constitution of India. It must be also noted that Ombudsman. Thus rules must be enacted to make it
al
the conjunction used in the judgement41 is ‘and’42 further more fair towards the insurer. And also the
thus fulfilling either of the conditions is not adequate lacuna regarding the penalty on noncompliance of the
rn
to invoke Article 226 of the Constitution; it must award or recommendation must also be filled which will
thus reduce the ambiguity regarding the matter.
ou
fulfill all of the above conditions in the judgement

to file a writ petition against the award given by
CONCLUSION
lJ
the Ombudsman.
na
In another recent case43 similar issues arose and Insurance Ombudsman according to the Redressal of
Calcutta High Court also observed that the rules Public Grievances Rules,1998 is an institution setup for
io
doesn’t confer rights upon the insurer to not to the speedy, cost effective and impartial redressal of
comply incase the insurer is aggrieved by the award insurance complaints and grievances. It is not a judicial
nt
given by the Ombudsman. body and do not hold any powers of a Court. The award
er
or recommendation of Ombudsman becomes binding

Thus, we must infer that only the complainant is given on the insurer only if it is given consent by the
nt
the option of consent and it becomes binding once it is complainant. As per the research done, insurance
consented by him. The complainant also has an option Ombudsman is an effective mechanism in cases of
eI
personal line services44. In comparison with Consumer

Th
38 Birla Sun Life Insurance Company v The Insurance 42 Id

Ombudsman and anr, 2014 43 Life Insurance Corporation Of India vs The Insurance
39 Id Ombudsman & Ors,2017
41 Id
*
20
Redressal Forums, Ombudsman gives cost effective

disposal of grievances but the award by Consumer
Redressal Forums remains binding on both the parties.
It is an option to resort in cases of complaints by the
common man, since it is cost effective and focuses on
speedy disposal.
ce
en
ud
pr
ris
Ju
&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
eI
Th
*
21
TRIBUNALIZATION OF JUSTICE
A COMPARATIVE ANALYSIS OF LEGAL SYSTEMS IN INDIA & THE UNITED STATES OF AMERICA
ADITHYA SUDHAKARAN NAIR
ce
There is no liberty if the power of judgement is not assigned to the other4. This scheme of the Constitution
separated from the power of legislature or the executive cannot be altered, not even through resorting to
en
powers. If they are joined together, life and liberty would amendments5.
be subject to arbitrary control as the legislator would be
ud
the judge or worse, an oppressor. It would be a There are set boundaries to each organ of the state and
deplorable condition if the same man or body could these boundaries cannot be intruded into by the other.
pr
exercise all three powers of enacting laws, executing The intrusion into the adjudicatory power of the
judiciary by forming quasi-judicial bodies through acts
ris
public resolutions and that of judging the differences of
individuals1. This was the fear of arbitrariness within a of the legislature can be defined as Tribunalization. In
India, this phenomenon was introduced and legitimized
Ju
sovereign expressed by Montesquieu, a French scholar,
as early as the sixteenth century, while he expounded the through the 42nd amendment to the Constitution. This
amendment added Article 323A and 323B which
&
rationality behind his doctrine of separation of powers.
The solution to this problem according to him was to empowers the Parliaments to form such adjudicatory
aw
separate the three powers of legislature, executive and bodies called Tribunals regarding enlisted matters in the
judiciary such that there can be no encroachment or aforesaid Articles. Moreover, the courts have
subsequently held that the power of the Parliament to
L
overlaps between the three powers. Therefore, the
separation of powers doctrine, in theory, aims at constitute Tribunals goes beyond the matters specified
of
separating power and disseminating it such that tyranny in Article 323A and Article 323B and extends to any
by the government may be prevented entirely as equal appropriate entry in the Seventh Schedule of the
al
power vests in three separate organs which act as a Constitution.6 The 42nd amendment, enacted during the
rn
check and balance for each other.2 Emergency, itself has been subject to controversial
accusations and serious criticisms. It has been attacked
ou
Many constitutions have adopted this doctrine on the grounds that the motive behind the amendment
worldwide to bring about better and fair governance. is the distrust on independent judiciary and to take away
lJ
This doctrine forms the foundation on which the whole certain constitutional jurisdictions of the judiciary and
structure of the US Constitution is based. Article 1 vests vest them with controlled quasi-judicial bodies and the
na
all legislative power in the Congress, Article 2 vests all executive.7 These Tribunals were furthermore shielded
io
executive power in the President of the US and Article by keeping their rulings out of the purview of the High
3 vests all judicial powers in the Supreme Court. The Court’s power of judicial review under Article 226 and
nt
Constitution drafters also affirmed to this doctrine while 227.

drafting the scheme of the Indian Constitution. Though
er
Supreme Court rulings have time and again held that the This paper tries to assess the encounters before judiciary
nt
doctrine is not followed in a rigid sense but in a broad in India between the arguments raised in favor of
perspective only3 to the extent that none of the three Tribunals and the Court’s efforts to harmonize this
eI
organs of the Republic can take over the function phenomenon with the doctrine of separation of powers.
Th
1 Charles de Secondat Montesquieu & Thomas Nugent, The 6 State of Karnataka v. Vishwabharati House Building Coop. Society,
Spirit Of Laws (1758). (2003) 2 SCC 412; Union of India v. Delhi
2 Richard White, 'Separation Of Powers And Legislative High Court Bar Association, (2002) 4 SCC 275.
Supremacy' (2011) 127 Law Quarterly Review. 7 Gopal Krishna, 'The Trouble With Tribunals: Open
3 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Magazine' (Toxicswatch.org, 2013)
4 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. <http://www.toxicswatch.org/2013/05/the-trouble-with-
5 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461. tribunals-open-magazine.html> accessed 9 April 2018.
*
22
This paper furthermore places this analysis in direct constitutional functions of the executive or legislative
comparison to similar instances occurred before the US departments. This was green light for Congress to
Courts. This comparison would be rather interesting as constitute Tribunals regarding foreign commerce,
India, who’s jurisprudence regarding Tribunals has public health, tax, land claims among many more.
evolved over the past four decades, would be set against
the United States, who’s legislature – The Congress has In contrast to the Indian experience, matters that come
been conferred with the power to establish Tribunals within ‘public rights’ are enlisted in Article 323A and
ce
from the very inception of their Constitution. especially Article 323B. The list of matters given out in
Article 323B of the Indian Constitution succinctly
en
DELIMITING AND LEGITIMIZING represents ‘public rights’ disputes. The courts in India
THE POWER OF THE LEGISLATURE didn’t have to tackle the problem of delimiting as done
ud
in the US through a judicial doctrine. As held by courts,
In United States, Article 3, which vests judicial power in
the competence of the Parliament to constitute
pr
the Supreme Court and its inferior courts, is
Tribunals goes beyond Article 323A and Article 323B.
fundamental to the system of Government and the
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While in the US, the Congress was trying to push the
Congress and the executive doesn’t have the
boundaries of the ‘public rights’ doctrine in order to
constitutional authority to consent to the removal of the
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establish more Tribunals and soon began transferring
judicial power to another branch,8 while Article 1, which
disputes between private individuals to non-Article 3
vests the legislative power upon Congress, specifically
&
adjudicatory bodies within the safe haven of ‘public
confers the Congress under Section 8 to constitute
rights’.11 The court in the US responded to this, while
Tribunals inferior to the Supreme Court. This in first
aw
declaring one such adjudicatory body as
instance confirms the unitary system of judiciary as in
unconstitutional, by holding that they may tolerate
India that all courts must be inferior and subject to the
L Article 1 courts but they won’t allow for new exceptions
Supreme Court. In contrast to dual system adopted in
to the rule to develop and that the powers of the tribunal
of
France where the void is filled by special administrative
had to be narrower than what an Article III court could
courts. Article 3 Judges enjoy salary and tenure
exercise.12 The new narrowness doctrine didn’t stick for
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protections which were designed to protect the judicial

too long and within a few years the court came up with
independence in a scheme of separated powers.
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a brand new ‘balancing test’.13 The passage of time and

As early as the first session of the first congress, non- proliferation of Article 1 courts had made it impossible
ou
Article 3 courts have been given the authority to decide for the courts to come up with a principle that could
issues and disputes that were seemingly within the scope distinguish between the work of Article 1 Tribunals and
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of Article 3 courts. 9 The Federal courts in the US Article 3 Courts. The courts decided to go with the
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initially had to organize and limit the principle governing balancing approach, where the court recognized the
the relationship between Article 3 Courts and Article 1 Congress’s role and responsibility to come up with
io
Tribunals. The court finally found an opportunity to test innovative measures and conceded to the fact that
expert resolution of certain disputes maybe deemed
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the constitutionality of the flourishing non-Article 3

courts; while deciding upon the matter at hand, the court essential. While applying the balancing test, the court
er
laid down the ‘public rights’ doctrine. 10 This doctrine would weigh in between judicial independence and
legitimized the adjudication of disputes between the legislative interest in departing from Article 3. It would
nt
government and individuals who are subjected to its also consider availability of an appellate review as one of
the factors.
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authority in connection with the performance of the

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8 Stern v. Marshall, 131 S. Ct. 2594, 2608 (2011). 11 Jamie

Dodge, 'Reconceptualizing Non-Article III
9 Richard H. Fallon, Jr., ‘Of Legislative Courts, Tribunals' (2015) 99 Minnesota Law Review.
Administrative Agencies, and Article III’ (1988) 101 Harvard
Law Review. 12 Northern Pipeline Construction Co. v. Marathon Pipe Line Co.,
10 Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. 458 U.S. 50 (1982).
13 Thomas v. Union Carbide, 473 U.S. 568 (1985).
(18 How.)
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23
Tribunals and held that such appointment will only be

This is very similar to the arguments put forward in done through effective and meaningful consultation
favor of Tribunals in India. These arguments can be with the Chief Justice of India and that the presence of
succinctly categorized as the delay argument; pendency judicial member on the bench is mandatory. 16 In its
argument; speedy justice argument and the expert-judge most recent decision, the court held that presence of
argument. These arguments are based on which the technical members on a Tribunal is not necessary if the
legitimacy of Tribunals is established in India. 14 An Tribunal is not dealing with highly specialized subject
ce
alternate to strict procedural rules, a solution to matter. Moreover, the court also cracked down on
overburdening of courts and especially expert resolution selection of bureaucrats as technical members and held
en
have been the selling points for Tribunals in India. that mere expertise is not enough, what’s important is
These factors are also encapsulated in the balancing test judicial experience.17 It is quite interesting to note that
ud
of the US Courts whereby the Congress is given the the appellate review of Article 3 Courts was not resorted
freedom to innovate in dispute resolution methods as to by US courts to ensure judicial independence until
pr
long as they can strike a balance with the encroachment recently. The appellate review of Article 3 hasn’t been
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over judicial independence. It can be observed that the completely adopted either, it is only reserved to matters
reasons behind accepting and legitimizing the where potential deprivation of life, liberty, property, or
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functioning and flourishing of Tribunals are the same in property interest is involved. More importantly, the
both the United States and in India. The legal systems in appointment procedure adopted by the Congress for
&
both the countries have established that Tribunals are Article 1 Judges hasn’t been put under scrutiny by US
here to stay. The point of inquiry now for the states is courts yet.18
aw
how can they ensure judicial independence and
separation of powers if they have legitimized the L CONCLUSION
intrusion of the legislature into the powers of judiciary.
The US courts adoption of the balancing test has left the
of
ENSURING THE ‘INFERIORITY’ OF courts in a very confusing place as it fails to give
TRIBUNALS concrete guidelines to determine the extent and scope
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of Article 1 Tribunals as held in subsequent court

Indian courts and public have been very suspicious and decisions. 19 Many scholars have suggested
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cautious while accepting Tribunals into its legal system. reconceptualizing of the test or resorting to the appellate
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Emanating out of an amendment enacted during the review theory, some have even come up with a novel
emergency, the courts had to ensure that Tribunals did replacement such as the ‘inferior courts’ account.20 In
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not vitiate into judicial independence of judiciary and contrast with the Indian jurisprudence, the court’s
doesn’t compromise the unitary legal system whereby suspicion and strict scrutiny of Tribunals has somewhat
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the judicial branch was responsible for dispute ensured judicial independence and separation scheme.
resolution. The court at the very outset held that the The Indian courts also realize that Tribunals are here to
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jurisdiction of Supreme Court and the High Courts to stay and for their betterment suggested that a centralized
nt
exercise their power under Article 32 and 226, body be formed to look after Tribunals, this is to tackle
respectively, cannot be ousted as intended by the the problem of over dependence of Tribunals on the
er
amendment act. 15 The court also took into sponsoring ministry.21 In conclusion, it is important to
nt
consideration the appointment process of judges in note that judiciary is a fundamental branch of the state.
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14 Khagesh Gautam, ‘The Curious Case of Tribunalization’ 19 Stern v. Marshall, 131 S. Ct. 2594, 2608 (2011).
Th
(2012) 47 VAT and Service Tax Cases (Journal). 20 James E. Pfander, 'Article I Tribunals, Article III Courts,
15 L Chandra Kumar v. Union of India, (1997) 3 SCC 261 And The Judicial Power Of The United States' (2004) 118
16 S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. Harvard Law Review.
17 Madras Bar Association v. Union of India, (2010) 11 SCC 1. 21 Madras Bar Association v. Union of India, (2010) 11 SCC 1.
18 James E. Pfander, 'Article I Tribunals, Article III Courts,
And The Judicial Power Of The United States' (2004) 118

Harvard Law Review.
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24
Constituting tribunals for better adjudication can lead to

neglection of Judiciary. Innovation and expertise can be
brought about within the judiciary itself and this goes
for both Article 3 courts and Indian Constitutional
Courts. Once this is realized, the entire argument for
specialized adjudicating bodies falls flat on its face.
ce
en
ud
pr
ris
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&
L aw
of
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na
io
nt
er
nt
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25
FAILURE OF INDIAN CRIMINAL JUSTICE SYSTEM IN

PROTECTING SEXUAL ASSAULT VICTIMS
TANYA KUKADE & SHARMISHTHA BHARDE
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It can be safely said that a rape victim in India is of the Constitution of to protect the life and limb of its
brutalized twice, first by the rapist and then by the State. citizens. But the responsibility imposed upon the courts
en
No one can deny that there exists a problem of rape in to ensure the protection of the accused until proven
ud
India. While there are numerous factors that are to be guilty is often misused by the said party.
attributed to this social evil, one of the biggest hurdles
Rape is defined under Section 375 IPC 1 and further
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that rape victims face is the criminal justice system,
which unfortunately causes more anguish then lessens interpreted in subsequent cases to widen its ambit. The
rate of crime against women – crimes per 100,000
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it. Through the paper, the researchers aim to examine
factors influencing whether or not rape victims report female population was 55.2 in 2016, up from 41.7 in
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the crime, the brutal examinations victims are put 2012 and experienced an all-time low conviction rate of
through in courts, criminal justice system's response to 18.9% in 2016, which was the lowest in since 2007.2
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the rape victim, police and prosecutor attitudes that
A woman who is raped undergoes two crises - the rape
affect their handling of the crime and factors affecting
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and the subsequent trial. While the first wounds her
the legal outcomes of rape cases. There is a need to re-
dignity, destroys her sense of security and may often ruin
enforce and in certain cases revamp legislations that re-
her physically, the second not only forces her to relive
L
traumatize these victims, putting them into a more
through the traumatic experience, but also does so in the
of
vulnerable situation rather than protect them. There is
glare of publicity in a totally alien atmosphere.
compelling evidence that sexual assault is a seriously
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underreported crime. ANALYSING THE PROBLEM

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INTRODUCTION It is common knowledge that the public regards the

Indian Justice System woefully inept. Unfortunately,
ou
“The society is organized not just to punish women but to protect

there is immense evidence to support this, as the Courts
the men who punish women.”
are overburdened with cases, corruption is rampant and
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-Andrea Dworkin, “Woman-Hating Right and Left”.

lawyers engage in unethical and questionable practices.
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It is argued that law constructs gender by invoking This scenario, coupled with deep-rooted misogyny and
images of woman like the "good" battered wife, the a prevalent ‘rape culture’ has made a rape trial about the
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"bad" mother, the deserving and undeserving victim’s ‘character’, rather than the rapist’s crime.
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homemaker, and the "real" rape victim. These images Currently, “assault or use of criminal force to a woman
serve to coerce women and make them believe that with the intent to outrage her modesty” is punishable
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certain identities are natural and inevitable. No one can under Section 354 of the IPC with 2 years’
deny that there exists a problem of rape in India. While imprisonment. The term outraging the modesty of a
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there are numerous factors that are to be attributed to woman is not defined in the IPC. Thus, where
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this social evil, one of the biggest hurdles that rape penetration cannot be proved, the offence is categorized
victims face is the criminal justice system, which as defined under Section 354 of the IPC.
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unfortunately causes more anguish, instead of lessening

it. The state is obligated under the dictates of Article 21 Before looking at the criminal trial, there is a need to
examine the crime. Women, for the most part are
1 S375, IPC. 2 National Crime Record Bureau Report, 2016,

http://ncrb.gov.in/StatPublications/CII/CII2016/pdfs/Cri
me%20Statistics%20-%202016.pdf
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26
silenced, pressurized or threatened to not speak up physically resisting the assault. In a recent case, a man
about their trauma. If they do somehow muster up the named Mohammed Farooqui was acquitted because the
courage to speak about the violence, their voices are Delhi High Court stated that there was an ‘assumed
muffled by two institutions that are primary responsible consent’. 6 The Court failed to take into account that
for security and progress – the society and the police. consent is explicit. If it leaves room for guesses or
Courts often view rape as an offence against the chastity, doubts in the other person’s mind, then that person is
virginity and prospects of marriage of a woman. There not consenting to that act. A famous Indian-American
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have been instances of victims being married off to their actor and vocal ‘feminist’, Aziz Ansari was accused of
rapists. 3 In this society, a woman is measured by her sexual assault on a date. When the article appeared on
en
‘purity’ and ‘chasteness’. Therefore, a woman who has the Internet, various self-proclaimed feminists
been raped is, by this logic, impure or tainted. In many dismissed the woman’s story and termed her experience
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cases, families see no other option but marriage to the as merely a ‘bad date’.7 How many women have been
rapist, especially if the victim is a minor or is pregnant dismissed, their trauma ridiculed, merely because they
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(or both).4 On the other hand, the police force has a did not physically resist the assault, or did not yell,
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higher onus of not falling prey to misogynistic notions. scream or scratch their abuser? This is the same level of
bizarre analogy that people use to blame the domestic
A persisting culture of belittling and dismissing women
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violence victim by saying, “If she is facing assault, why
enables police officers to deny rape victims access to the doesn’t she just leave him?”
legal system.5 When the woman is fortunate enough to
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have the police listen to her complaint, she must muster A sexual assault is a woman’s worst nightmare, the
aw
up the courage to face the accused in Court. In every scariest moment of her life. Her rational decision-
criminal trial, there are two clear sides – the prosecution making and clarity of thought is hampered by the
and the accused. The accused must be given all knowledge that the man in front of her has the power
L
opportunities to defend him/herself and the burden of to hurt her, even kill her. In Mohammed Farooqui’s
of
proof to prove that the crime was committed falls on case, the woman stated that she did not physically resist
the prosecution. In cases of violence against women, the the assault because ‘she had seen the rapist in Nirbhaya’s
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situation is reversed. The defense bases its arguments documentary say that if she (victim) did not fight, she
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not by proving the accused’s innocence but rather would still be alive’. In another case, the Punjab and
dismantling the woman’s reputation or establishing that Haryana High Court not only released three men
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there was consent the act. accused of rape on bail, but also shamed the woman,
blaming the “degenerative mindset of the youth
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Consent is the antithesis of rape. Due to lack of breeding denigrating relationships mired in drugs,
awareness about consent, Courts fail to acquit the alcohol, casual sexual escapades and a promiscuous and
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accused. There is a failure to acknowledge that a

woman’s ‘no’ is a ‘no’, even if she was intoxicated or not
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3 Girl sold by relative, forcibly married, raped, THE HINDU, (Sept http://www.huffingtonpost.in/2017/07/31/14-year-old-
14, 2016), http://www.thehindu.com/news/national/other- rape-victim-forced-to-marry-alleged-rapist-to-
er
states/Girl-sold-by-relative-forcibly-married- suppor_a_23057348/.
raped/article14637232.ece; Jessica Chasmar, Indian woman is 5 Siddharth Chatterjee, How Law Enforcement Fails India’s
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forcibly married, gang-raped in brutal ‘honor’ punishment, THE Women, THE WIRE (Jul 29, 2017),
WASHINGTON TIMES, (Jul 29, 2013), https://thewire.in/54682/connecting-police-apathy-and-
eI
https://www.washingtontimes.com/news/2013/jul/29/indi rape-in-india/.
an-woman-forcibly-married-gang-raped-brutal-ho/; Panchayat 6 Rupali Samuel, The Acquittal in the Mahmood Farooqui case: A
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members try to marry off minor to rapist in Valley, DNA, (Dec 30, mirror to us all, BAR AND BENCH, (Sep 30, 2017),
2017), http://www.dnaindia.com/india/report-panchayat- https://barandbench.com/acquittal-mahmood-farooqui-
members-try-to-marry-off-minor-to-rapist-in-valley- case/.
2571490. 7 Nick Romano, HLN host Ashleigh Banfield blasts Aziz Ansari
4 Sonali Kokra, 14-Year-Old Rape Victim Forced To Marry Alleged accuser for 'reckless' claims, ENTERTAINMENT WEEKLY, (Jan 16,
Rapist To Support The Baby Born Out Of Rape, THE 2018), http://ew.com/tv/2018/01/16/hln-ashleigh-
HUFFINGTON POST, (Jul 30, 2017) banfield-aziz-ansari-accuser/.
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27
voyeuristic world.”8 However, the appellate courts have LEGAL POSITION

taken cognizance of misogyny in the system, and tried
to rectify the situation.9 It is heartening to know that Rape as a criminal offence is defined under Section 375
there is greater gender sensitivity and a new awakening and 376 IPC, 1860.10 According to the original provision
in the recent years while appreciating evidence in rape as in Section 375, a man is said to have committed rape
cases. who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling
ce
It is a matter of concern that the shameful ‘Two Finger under any of the five following descriptions:
Test’ (TFT), a primitive clinical procedure where the
en
doctor tests the laxity of vaginal muscles with his two 1. Against her will,
fingers, was earlier permitted. The Doctor, for reasons 2. Without her consent,
ud
unwanted, could declare the virtue and give a character 3. With her consent, when her consent has been
certificate to ‘the wronged’, testifying that the victim was obtained by putting her in fear of death or of hurt,
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habituated to sex or not. 4. With her consent when the man knows that he is
not her husband, and her consent is given because
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Another problem with the criminal justice system is the she believes that he is another man to whom she is
delay in delivering justice to the victim. An or believes herself to be lawfully married, and
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overwhelming number of rapes against women are 5. With or without her consent when she is under 16
committed by someone they know. years of age.11
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Contrary to popular perception of delayed trials, we The lack of a witness protection law in India makes rape
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have proved that quicker justice is possible within our survivors and witnesses vulnerable to pressure that
system. A special fast-track court took just seven L undermine prosecutions. For instance, Khap
months to pronounce the verdict in the Delhi gang rape Panchayats, unofficial village caste councils, often
case. According to human rights lawyers’, the reason for
of
pressure Dalit and other so-called “low-caste” families
this exception to the rule of a protracted criminal justice not to pursue a criminal case or to change their
system that fails thousands of rape victims in India, is
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testimony if the accused is from the dominant caste.

the public outrage. Legal system should not be the one
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which get charged only on public demand. As Rebecca Between 1956 and 2009, there have been four Law
Mammen John, a Supreme Court lawyer, points out Commission reports in which the issue of rape has been
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“There are so many... survivors out there who are addressed country. In the 84th report 12 there were
neither getting any kind of media attention, nor getting recommendations on the definition, issue of consent,
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any kind of judicial attention, which results in burden of proof, arrest procedures and questions during
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languishment of their cases in courts with no signs of trial. This report was evidently the result of the
justice being done”. Although one of the requirements nationwide protest over the Bombay High Court's
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of the "speedy" disposal was to finish cases within six decision on what is famously known as the Mathura rape
months, there was no requirement for gender training case13 which was an incident of custodial rape in India
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or prior experience of sensitively handling sexual and subsequently led to amendments in The Criminal
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offence cases for the personnel. Law (Second Amendment) Act 1983. An open letter of
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8 Cr.M No. 23962 of 2017 in Cr.A. No. S-2396-SB of 2017, 11 Tandon MP, Tandon R. 15th ed. Allahabad: Allahbad Law
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(Sept 13, 2017). Agency; 1982. The Indian Penal Code; pp. 300–4.
9 An intoxicated woman’s consent for sex is not an excuse for rape, says 12 Rape and Allied Offences: Some Questions on Substantive
Bombay High Court, SCROLL.IN, Law, Procedure and Evidence, available online at
https://scroll.in/latest/829705/an-intoxicated-womans- http://lawcommissionofindia.nic. in/Report84.pdf.
consent-for-sex-is-not-an-excuse-for-rape-says-bombay- 13 Tuka Ram And Others vs State Of Maharashtra on 15
high-court. September 1979, Supreme Court of India (AIR 1979 SC 185;

10 Ibid 1 (1979) 2SCC 143; 1978 CrLJ 1864; 1979 SCC 143).
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28
recommendation was written to the Chief justice of has been made more friendly and easy, character of the
India. victim is irrelevant for consideration, presumption of no
consent where sexual intercourse is proved and the
In her entire history India would not have witnessed the victim states in the court that there has been no consent,
kind of upsurge we witnessed in the aftermath of etc. The age of consent has been increased to 18 years,
December 16 gangrape in a moving bus and killing of a which means any sexual activity irrespective of presence
23-year-old woman in New Delhi. The unfortunate of consent with a woman below the age of 18 will
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incident gave a platform for an inclusive debate for constitute statutory rape.
better laws and greater gender sensitivity.
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Keeping in mind the International Covenant on
In view of the recommendations of the Law Economic, Social, and Cultural Rights 1966 and the UN
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Commission the Indian Parliament introduced the Declaration of Basic Principles of Justice for Victims of
Criminal Law (Amendment) Bill, 2013. It provides for Crime and Abuse of Power 1985, the apex court said,
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amendment of IPC, Indian Evidence Act, and Code of rape survivors are entitled to legal recourse that does not
Criminal Procedure, 1973 on laws related to sexual re-traumatize them or violate their physical or mental
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offences. The offence of rape under Section 375 of IPC, integrity and dignity.
have made both penile and non-penile insertion into
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bodily orifices of a woman by a man an offence.14 The Associated with the issue of what constitutes consent is
section has also clarified that penetration means that of proving consent. Often there is the probability
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“penetration to any extent,” and lack of physical that the woman did not consent, but legal proof is not
resistance is immaterial for constituting an offence.15 available. The woman may be physically too weak or
In Rameshwar v. State of Rajasthan16, it was held by the

High Court that guilt of the accused can be proved by
L aw
mentally too dazed to resist and the peculiarity of rape
is that there are no witnesses except the victim herself.
Proof of offence primarily depends upon the credibility
the evidence of the victim which can be legally
of
of the victim. Bruises, scratches or other marks of
corroborated by an accomplice of the victim. Many a struggle may constitute evidence but that would be a
time, apart from the testimony of the rape victim,
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"feeble" evidence of want of consent.

evidence of close relations (say for example, mother) or
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of a close friend or teacher to whom the rape victim PROBLEMS FACED BY RAPE VICTIMS
narrated the incident is relied on by the prosecution as
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evidence of conduct or for corroboration. In Brahma The following are the problems faced by rape victims: -
Swaroop and another vs. State of U.P.17 which was not a case
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of rape, the Supreme Court indicated that the  Deprivation of right to life and personal liberty,

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relationship of the witnesses to the party or parties is not They are often forced to undergo uncomfortable
a factor which affects the credibility of the witness and procedures and inquiries both inside the court as
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a relation would not conceal the actual culprit and make well as from the people outside,
an allegation against an innocent person.  Ostracized by the society and at times, prohibited
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from right to education as well,

Certain changes have been introduced in the CrPC, 1973
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 Exploitation by media and the people concerned by

and IEA, like the recording of statement of the victim making her a public figure,
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14 The definition is broadly explained in some aspect, with acts extend to imprisonment for life, and shall also be liable to fine.
like penetration of penis, or any object or any part of body to In aggravated situations, punishment will be rigorous
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any extent, into the vagina, mouth, urethra, or anus of a imprisonment for a term, which shall not be less than 10 years
woman or making her to do so with another person or but which may extend to imprisonment for life, and shall also
applying of mouth to sexual organs (Cunnilingus or fellatio) be liable to fine.
without the consent or will of the woman constitutes the 16 1952 AIR 54, 1952 SCR 377.
offence of rape. 17 Criminal Appeal No. 1235 Of 2005.

15 Exception: In certain aggravated situations, the punishment
will be imprisonment for not less than 7 years but which may
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29
 Interference of various political parties into the  Police officers should be made duty bound to assist
matter or changing it as a political issue, victims of sexual offences irrespective of the crime’s
 Deprivation of the victim from certain rehabilitative jurisdiction.
and aftercare treatment,  Members of the public who help the victims should
 Delay in the trail proceedings which results in delay not be treated as wrong doers.
in delivering justice,  Community policing should be developed by
 Delay on the part of investigating agency in finding providing training to volunteers. This is practised in
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out the real culprits. a lot many countries.

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Sex education must be given importance at the
RECOMMENDATIONS school level since it instills a sense of gender
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equality and respect for the opposite gender.
Justice Verma Committee was constituted in the year
Importance must also be given to Adult literacy
2013 in order to recommend amendments to the
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programs as they are necessary for gender
Criminal Law so as to provide for quicker trial and
empowerment.
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enhanced punishment for criminals accused of
 Since death penalty in today’s world holds very little
committing sexual offences against women. The
deterrent effect on the hardened criminals in serious
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Committee submitted its report on January 23, 2013.
crimes it should be replaced with life imprisonment
But most of these suggestions have failed to see the light
coupled with compulsory community services
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of the day.
under a close watch by the prison officials.

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The Committee recommended the amendment of the The humiliating ‘two-finger test’ must be
Representation of People Act, 1951. Currently, the Act discontinued. The two-finger test and its
provides for disqualification of candidates for crimes interpretation violates the right of rape survivors to
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related to terrorism, untouchability, secularism, fairness privacy, physical and mental integrity and dignity.
of
of elections, sati and dowry. It further recommended Thus, this test, even if the report is affirmative,
that candidates should be disqualified for committing cannot ipso facto, be given rise to presumption of
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sexual offences. consent”.

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 The Armed Forces (Special Powers) Act, 1958 must

The Committee has recommended that the terms ‘harm’ be amended so that no sanction is needed for
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and ‘health’ be defined under the Juvenile Justice Act, prosecuting an armed force personnel accused of a
2000 to include mental and physical harm and health, crime against woman.
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respectively, of the juvenile.

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OTHER SUGGESTIONS
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 The most important suggestion being that any

inappropriate physical act done with an intention of
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causing discomfort to the other party must be

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punished or duly recognized in the Criminal Law

statutes.
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 A Rape Crisis Cell should be set up. The Cell

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should be immediately notified when an FIR in

relation to sexual assault is made. The Cell must
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provide legal assistance to the victim in receiving

justice.
 All police personnel must be sensitized about ways
of dealing with victims of such offences in order to
ensure their safety.
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30
THE CONCEPT OF SIMULTANEOUS ELECTION IN THE

LIGHT OF FEDERALISM & MULTI-PARTY SYSTEM
JAYANTA CHAKRABORTY
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INTRODUCTION multiple occasions and hence their role in federalism is
widely acknowledged.
en
The character of Indian polity is federal in nature.
Although the term federation or federal has not been Talking of elections, 1967 was a changing point in
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mentioned anywhere in the constitution, yet the Indian political scenario because up until 1967 the
constituent assembly debates, division of legislative elections to the House of People and elections to the
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powers between the Union and the States and the clear Legislative Assembly of the states happened
demarcation of the Union and State executive powers simultaneously. But the results of 167, which we shall
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clearly outline the federal nature of our constitution. deal with later changed the scenario in most of the states
K.C.Wheare while talking of federalism in India has and state elections took place randomly as stable
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defined the Indian state as a “Unitary state with governments were not present in the states. Since 1967
subsidiary federal features.”1 the harmonization of elections in India came to an end.
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But recently the Narendra Modi led NDA government
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The roots of federalism in India have been deepened by which came to power in 2014 has started pitching the
the presence of the different political parties cutting idea of simultaneous elections at the Union and State
across states, religion, language and caste. Unlike level citing the excuse of expenditure and time. 2
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America which is a bi-party system, India has adopted
of
the British system of multi parties. The various political It is therefore debated in the following parts of this work
parties present in India in different states are important that how this idea of conducting simultaneous elections
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not only to raise the concerns of their respective states is against the idea of federalism and multi-party system
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but also to ensure that the governance at the Union level in India. The first chapter shall deal with the concept of
is not Delhi oriented only but rather been delivered to simultaneous elections and tracing the developments up
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every corner of the nation. to 1967 and what broke the simultaneous election trends
in India. The second chapter shall deal with the concept
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Elections play a very important role in nurturing the of federalism and the role of elections therein while the
multi-party culture in India. If we take a look at the third chapter shall discuss the concept of multi-party
na
election history in India we see that since 1967 the system in India and showcase how the idea of
regional parties started playing a big role in Indian simultaneous elections is an attempt to diminish the
io
politics especially in the state level with the weakening importance of the regional parties by stamping the
nt
of the Congress party and how since then in most of the authorities of national parties over them.
states, the regional parties formed their government.
er
Not only at the state level, the regional parties played a SIMULTANEOUS ELECTIONS IN
nt
decisive role in the Union level as well since for a long INDIA- MEANING, HISTORY AND
time India lacked a stable government at the Centre as SCOPE
eI
the two main parties of India failed to get absolute

majority. The regional parties became the king maker in India gained independence on 19th August, 1947 from
Th
the British Rule. The constitution assembly of India

drafted the constitution of India which was adopted on
1K.C.WHEARE, FEDERAL GOVERNMENT, London; 2BJP provides its CMs with action plan to promote simultaneous polls,
New York: H. Milford; Oxford University Press, 1946. Hindustan Times, February 22, 2018.
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31
the 26th of November, 1949 and came into force on 26th the concept of simultaneous elections was replaced by
January, 1950. As the preamble of the constitution present trend of haphazard elections that we are
declares India to be a “Sovereign, Secular, Socialist, witnessing even today.
Democratic & Republic”, it was necessary that elections
take place periodically. 3 The responsibility of Elections to The House of the People6
conducting the elections to the House of People and the
State Assemblies is vested exclusively on the Election (Post 1967 Election when state and union elections
happened at different times)
ce
Commission of India4
en
The first General elections in India were held in 1951- NAME OF THE YEAR OF ELECTION
1952. Along with the general elections to the House of STATE
ud
the People, general elections to the state assemblies were
Andhra Pradesh 1978 (Synchronised with Lok
also held in all the states. The Congress was no doubt
pr
Sabha Elections since 1999)
the largest and strongest party with government at the
Union and most of the states and this trend continued
ris
Assam 1978
until 1967. But before looking into the election statistics
and reasons as to why the simultaneous election trend
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Bihar 1980
was discontinued, it is important to take a look at an
overall picture as to when the elections to the house of
&
Goa 1994
People took place simultaneously with the election in
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the states. Gujarat 1990
Elections to The House of the People5 Haryana 1982

L
of
Name of the Election Year Himachal 1982
Pradesh
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General Elections to the 1952, 1957, 1962, 1967.

House of People Jammu & 1983
rn
Kashmir
ou
Karnataka 1994
So the first 4 general elections to the house of the People
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were more or less uniform happening after a period of Kerala 1970

na
5 years. With Jawaharlal Nehru at the helm of affairs, the

Congress government was very stable and no need of Madhya Pradesh 1990
io
midterm elections arose. These elections did not pose

any threat to the authority of the Congress party at the Maharashtra 1990
nt
Centre and hence the state level politics was also more
er
or less stable. This is an important aspect as to why Manipur 1990

simultaneous elections were very natural in this period.
nt
Orissa 1990 (Synchronised with Lok

Now we take a look at the history of state elections and Sabha Elections since 2004)
eI
how the scenario of the states changed post 1967 and

Th
3In India elections take place every 5 years. Article 82 and 4 Indian Const. Art 324.
Article 172 talk about the duration of the House of the People 5 Election Results, Full Statistical Report, (14th March, 2018),
and the State Assemblies which states the duration of the www.eci.nic.in /eci_main1/ElectionStatistics.aspx
houses shall not be more than 5 years unless dissolved 6 Ibid.
otherwise.
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32
Punjab 1969
Total Seats- 520
Tamil Nadu 2001
Congress
Tripura 1983
Communist
Uttar Pradesh 1969 Party of India
ce
Communist
West Bengal 1969 Party of India
en
(Marxist)
Bharatiya
35 18 Jana Sangh
25
ud
36 Swatantra
The above table contains 19 states because the states of Party
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Uttarakhand, Chattisgarh, Jharkhand, Telangana were 44 283
Socialist
formed later while the remaining 6 states did not have 35
Party
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elections simultaneously with the General Elections 19
23
since those states were either formed later or joined the DMK
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Indian territory at a later period.
Independents
&
If we consider the present Indian scenario then only the
states of Sikkim, Arunachal Pradesh, Telangana, Andhra Others
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Pradesh and Odisha have elections simultaneously with
the General Elections in India, the last of them being L
held in 2014.
of
It is important here to analyze the results of the 1967
RESULTS OF STATE ELECTIONS IN 19679
elections to understand why the simultaneous elections
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chain broke in India.

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RESULT OF THE 4th LOK SABHA ELECTION

Total States- 19
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19677.
11 Congress
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So we see that as far as the General Elections to the Lok 1

9 Absolute
Sabha are concerned, Indian National Congress got a
na
Majority
comfortable majority of 283 seats out of the 520 seats. 7
But the scene was not the same in the states. Moreover
io
the 10th Schedule of the Constitution wasn’t added to

nt
the constitution until 1985,8 which further facilitated

the swift defection from one party to another and Therefore, the above pie chart makes it clear as to why
er
governments in states were not stable. The the simultaneous election concept discontinued in India.
nt
Governments of the states fell mainly due to the It is worthy to mention here that we may talk in length
dissatisfaction of the State Congress Leaders with the and breadth about the political changes that took place
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leadership of Indira Gandhi and hence after 1967 the during this period but we cannot ignore is the fact that
scenario was changed entirely. during this period the mood of the people shifted from
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being controlled by Delhi to having more powers to the
7 Ibid 9 Rout of Congress party, (15th March, 2018)

8 Added by 52nd Amendment, 1985. http://www.thecrimson.com/article/1967/3/11/the-rout-
of-the-congress-party/March111967.
*
33
state level governments. The federal character of our elections were held to the Lok Sabha and four State
nation was reflected for the first time in the aftermath Legislative Assemblies viz. Andhra Pradesh,
of the 1967 polls and hence the study of simultaneous Odisha, Arunachal Pradesh and Sikkim in March-
elections is incomplete without the study of federalism May 2014. Elections to the Assemblies of
in India. Mahrashtra and Haryana were held in September-
October, 2014 and later, elections to the Legislative
In the Seventy Ninth Report of the Parliamentary Assembly of Jharkhand were held in November-
ce
Standing Committee on personal and public grievances December 2014. These elections are held in
and law and justice, the feasibility of conducting multiple phases and the country incurred huge
en
simultaneous elections were deeply dealt with. Talking expenditure for conducting those elections. Apart
about the positive side of simultaneous elections the from these, several bye-elections were also held.
ud
committee observed that. This also imposes a huge burden on the exchequer.
2. There are several justifications for holding
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“The need for simultaneous election to Lok Sabha and simultaneous elections. Firstly, it would reduce the
Legislative Assemblies has been felt by the electorate as
ris
massive expenditure incurred for conduct of
elections have become big budget affair and expensive separate elections every year. Presently, the cost of
and in most of the cases expenditures by the candidates
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holding elections for Lok Sabha and Legislative
are exceeding the ceiling fixed by the ECI. The Law Assemblies of States and UTs has been pegged at
Commission of India headed by Hon'ble Justice B.P.
&
`4500 crore by the ECI.
Jeevan Reddy in its One Hundred Seventieth Report on 3. Secondly, elections lead to imposition of Model
aw
Reform of Electoral Laws (1999) has suggested Code of Conduct (MCC) in the poll bound State/
simultaneous elections to Lok Sabha and State area. The imposition of MCC puts on hold the
Legislative Assemblies for the sake of stability in
L entire development programme and activities of the
governance. Union and State Governments in the poll bound
of
State. It even affects the normal governance.
The relevant portions of the said Report is reproduced
Frequent elections lead to imposition of MCC over
al
below: -
prolonged periods of time. This often leads to
rn
This cycle of elections every year, and in the out of policy paralysis and governance deficit.
season, should be put an end to. We must go back to the 4. Thirdly, frequent elections lead to disruption of
ou
situation where the elections to Lok Sabha and all the normal public life and impact the functioning of
Legislative Assemblies are held at once. It is true that we essential services. Holding of political rallies
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cannot conceive or provide for all the situations 4 and disrupts road traffic and also leads to noise
na
eventualities that may arise whether on account of the pollution. If simultaneous elections are held, this
use of Article 356 (which of course has come down period of disruption would be limited to a certain
io
substantially after the decision of Supreme Court in S.R. pre-determined period of time.
5. Lastly, it would free the crucial manpower which is
nt
Bommai vs. Union of India) or for other reasons, yet the

holding of a separate election to a Legislative Assembly often deployed for prolonged periods on election
er
should be an exception and not the rule. The rule ought duties. For example, the 2014 Lok Sabha elections
to be one election once in five years for Lok Sabha and which were held along with State Assembly
nt
all the Legislative Assemblies. (Para 7.2.1.1 of LCI's Elections in Odisha, Andhra Pradesh, Sikkim and
Arunachal Pradesh was spread over nine phases and
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170th Report)
1077 in situ companies and 1349 mobile companies
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1. In the current disposition, the Election Commission of Central Armed Police Force (CAPF) were
holds multiple elections every year. Most recently, deployed.”10
1079th Report of the Parliamentary Standing Committee on

personal and public grievances and law and justice.
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34
The Standing Committee took into consideration the If feasible, more appropriate solution may be to hold
views of all the major political parties of India and elections to Lok Sabha/ Legislative Assemblies
recommended that simultaneous elections cannot be simultaneously but to withhold the results of elections
conducted at once in the nation but can be done in two till after the expiry of term of the Legislative Assembly
phases. The first one in November 2016 in which concerned - the interval not exceeding six months.”12
assembly elections of those states can be held whose
terms expire six months before or after the stipulated This in brief is about the idea of simultaneous elections.
ce
date. Similarly, for the remaining states simultaneous But the concept of simultaneous elections can be
elections can be held in May 2019 with the 17th Lok understood in depth only if we analyze it in the light of
en
Sabha Elections. Only Bihar is a different story but federalism and multiparty system. These two systems
Bihar can be synchronized in 2021 with the other play a big role in election system and any pre mature
ud
states.11 judgment without taking into consideration these two
aspects shall be naïve.
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It is also important to mention here about the 170th
Report of the Law Commission of India which also FEDERALISM & SIMULTANEOUS
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pitched for the idea of simultaneous elections in India. ELECTIONS
The commission noted that:
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The government of India act 1935 established the
The desired goal of one election in every five years nucleus of the federal form of government. However,
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cannot be achieved overnight in the prevailing there was hardly any problem of Centre. State relation
under the act in view of the large power, which remained
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circumstances. It has to be achieved in stages. The
Commission had inter alia suggested that advancing the with the governor and the governor general. Centre state
elections of some Legislative Assemblies by making relations in the strict sense of the term may be said to
L
necessary orders so that it can be held with the election have former princely states and particularly so after the
of
of Lok Sabha; creation of the linguistic states. India is a multi-ethnic,
multi-lingual, multicultural country having so much
al
The elections to other Legislative Assemblies may be diversity, the unitary system would have been both
held by making similar adjustments in 13 phases with a unworkable and inadvisable. Therefore, in order to
rn
view to reducing its frequency until the desired goal of achieve unity and integration the federal system was the
ou
one election for Lok Sabha and to all the Legislative only course open to the framers of the constitution.
Assemblies simultaneously is achieved; Now a present day federalism in India has also been
lJ
facing a challenge as the pattern of modernization and

If all the political parties co-operate, the necessary steps pattern of industrialization followed turned out even
na
can be taken without hurting the interest of any political and socially discriminatory. Regional imbalance and
party; inequalities of states were retained and accentuated.13
io
May be, a constitutional amendment can solve the

nt
The Judiciary of our nation has also time and again

problem. Such an amendment can also provide for reiterated the federal structure of India. In the Automobile
er
extending or curtailing the term of one or more case14, S.K. Das, J. observed that the essential features of
Legislative Assemblies say for six months or so a ‘federal or quasi-federal’ structure were present in the
nt
wherever it is necessary to achieve the said goal. Indian Constitution. He held that:
eI
Th
11 Ibid. 2018), https://www.lawctopus.com/academike/federalism-

12 Report of 170th Law Commission on Electoral Reforms, india-judicial-interpretation/
1999. 14 The Automobile Transport(Rajasthan) Ltd. v. State of
13 FEDERALISM IN INDIA- A JUDICIAL Rajathan, 1962 AIR 1406.
INTERPRETATION, Siddharth Dalabhera, (15th March,
*
35
“The evolution of a federal structure or a quasi-federal miles away from New Delhi cannot be apprehended and
structure necessarily involved, in the context of the understood by people sitting exclusively in Delhi only.
conditions then prevailing, a distribution of powers and
a basic part of our Constitution relates to the Hence the need of state governments is a necessity in
distribution with the three legislative lists in the Seventh every sense. Constitution of India has made clear
Schedule. The Constitution itself says by Art.1 that India provisions for elections to the state assemblies and that
is a Union of States and in interpreting the Constitution the election to every state legislative assembly shall take
ce
one must keep in the view the essential structure of a place in five years. The idea of simultaneous elections
federal or quasi federal constitution, namely, that the hence is absolutely antithetical to the idea of federalism.
en
units of the Union have also certain powers as has the The various reasons that can be attributed to it are as
Union itself…” follows:
ud
Again in the case of In the Reference Case of 1965,15 1. Issues of Election at Union & State Level are
pr
Gajendragadkar, C.J., speaking for the majority, Different
observed that, “like other federal States, the Indian
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Constitution distributes powers between the Union and It is well understood that any election in India is fought
the States and that in order to maintain this federal on issues which are not merely political but also social
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distribution, the Judiciary was made the sole interpreter and economic. Now here lies the problem of
and protector of the constitution, which could not be simultaneous elections. It is highly possible that if
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changed by the process of ordinary legislation by either simultaneous elections take place in the country then in
every state the national issue will certainly override the
aw
the Union or a State Legislature. He characterised the
Indian Constitution as a federal constitution.” state issues. A border issue with Pakistan or China if
made an issue of state election in say Kerala or Tripura
L
Even in 1973, some of the Judges in the Full bench case then it doesn’t make any sense. There is a famous notion
of
of Keshavananda 16 considered federalism as one of the in India that local elections in India are fought on the
‘basic features’ of the Constitution of India. issues of “Sadak, Bijli and Paani” which means the issues
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revolve around the tripartite cycle of roads, electricity

In Ganga Ram Moolchandani v. State of Rajasthan, 17 the and water. Similarly, the face of CM and face of PM are
rn
Supreme Court observed that “Indian Constitution is different for parties. Under such circumstances the
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basically federal in form and is marked by the traditional national parties who have bright chances in the Lok
characteristics of a federal system, namely supremacy of Sabha elections will have an undue advantage in the state
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the Constitution, division of power between the Union elections.

and States and existence independent judiciary.”
na
2. State issues will get lost beneath the limelight of

The above decisions of the Supreme Court help us to National Issues
io
establish the Federal nature of Indian polity and

Every state in India is different in language, culture and
nt
constitution. Even the Constituent Assembly Debates

clear one fact that the constitution makers were never religious demography. In an event of simultaneous
er
inclined towards a unitary state although K.C.Wheare elections the parties of national level will keep
has termed the Indian Constitution as “quasi-federal”. themselves engrossed more in the national issues rather
nt
The diversity that India enjoys include linguistic than the local issues and hence there is every possibility
eI
diversity, geographical diversity, cultural diversity, social that the state issues won’t be given due weightage. Even
and economic diversity etc. Keeping these factors in in modern times when electronic media, print media and
Th
mind the federal character of Indian polity is very social media play a very huge role in the election process
essential. The needs of the people located thousands of by creating public opinion, will mostly focus on the
15 Special Reference No. 1 of 1964. 17 Ganga Ram Moolchandani v. State of Rajasthan, Appeal
16 Keswananda Bharti v. State of Kerala, 1973 4 SCC 225. (civil) 6469 of 1998.
*
36
national issue and hence state issue will get lost. This is system, the multiparty system has also become a part of
a very dangerous to the idea of federalism in India. the Indian political order. Before discussing the facets
of multiparty system it is imperative to get an idea about
3. The linguistic and cultural diversity of the states the definition of the political party. Nowhere in
will be undermined constitution have the term political party been
mentioned. The only definition of the term political
The Union of India is based on the very idea of linguistic party can be derived from Section 2(1)(f) of the
and cultural diversity. In India every state exhibits its
ce
Representation of the People’s Act.18 It defines political
unique diversity. But if simultaneous elections take place party merely as “an association or a body of individual
en
in India then such diversities will be undermined. The citizens registered with the Election Commission as a
election campaign will mostly be dominated by the political under Section 29A.”
ud
National Parties who would give speeches in Hindi and
the voters will be made to focus more on the national As of 2017 there are 7 national Parties viz. the BJP,
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agenda. This will create a sense of homogenization in Congress, Trinamool Congress, Communist Party of
India linguistically and culturally which is a threat to the India, Communist Party of India (Marxist) & Bahujan
ris
very idea of India which is based on diversity. “Unity in Samaj Party.19
Diversity” is a term often used to explain the various
Ju
diversities in India, but simultaneous elections will play There are 49 state parties functioning across 29 states of
spoilsport to this notion. India as well. Apart from these there are approximately
&
1760 unrecognized parties in India which do not fall
4. Union & States have separate legislative powers
aw
under the either category of state or national party.20
so the elections need to be fought on that basis.
The number of parties during the first election of 1952
L
Schedule 7 of our constitution has 3 lists. While List 1 was much less compared to what it is today. Now the
of
enumerates the legislative power of the Union, List 2 importance of discussing the role of multiparty system
and List 3 enumerate the legislative power of the states in India in determining the efficacy of simultaneous
al
and the concurrent list. Since the law making issue of elections is that the simultaneous elections is a tool by
the Union and State are different so the elections to their which the presence of multiparty system is trampled and
rn
legislative assemblies should also be different. A state the national parties fly high their own flag. This
has no role in Defense, Foreign relations or railways. So
ou
argument can be proved even statistically by the results

talking of these issues in state elections does not make of the 1952, 1957, 1962 & 1967 elections whereby the
any kind of sense. Similarly asking for votes in the Lok
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Congress party not only dominated the Lok Sabha

Sabha elections in the name of bad law and order of the elections but also swept the state elections giving very
na
states is also not a wise thing to do. little scope to the regional parties.
io
Therefore, in the light of the above arguments it is The following graph highlights the number of states
submitted that the idea of simultaneous elections is
nt
won by Indian National Congress in those simultaneous

against the spirit of federalism in India. elections.
er
MULTIPARTY SYSTEM & In 1952 elections took place in 22 states along with the
nt
SIMUTANEOUS ELECTIONS Lok Sabha Elections, the figure came down to 13 in

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1957 due to state adjustments and certain mid-term

India is a multiparty parliamentary democratic nation. polls. In 1962 the figure was 21 while in 1967 which was
Th
Unlike America, we do not follow the practice of having

only 2 parties. Having adopted the British Westminster
Representation of People’s Act, 1951. (Act No. 42 of 1951).

18 20 Ibid.
19Official Website of Election Commission of India,
www.eci.nic.in.
*
37
the last overwhelming simultaneous elections, 19 states

polled together. Total States- 31
Statistics of 1952-1967 Simultaneous Elections and BJP Majority
Superiority of the Congress Party.21
6
NDA Majority
12
25 3
ce
21 Congress
20
20 Majority
en
16 9 Others
15 States Won by
ud
12
Congress
10 States Won by
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Non Congress It is important again to understand the reasons of
5 3 growth of the Regional Parties. As discussed earlier post
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1 1 1 1967 the Congress part started disintegrating and
0 regional factions took the shape of regional parties
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1952 1957 1962 1967
which subsequently became regional parties with strong
hold over the states. Even at the present time in 2018
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So a clear picture can be understood from the chart that regional parties continue to hold almost 12 of the 29
whenever elections to the Centre and state happened states in India and this has been possible mainly because
aw
simultaneous the party at the Centre got its advantage of the simultaneous elections in India.
and hence the multiparty feature of our constitution
L
died a silent death. At the present moment the Bahratiya It is also important to take a look at the various regional
Janata Party is at the power at the Centre and is in power parties that have taken birth due to the disintegration of
of
in 21 states on its own and with ally and therefore we the Congress Party in various states.
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can understand the sense of urgency in the BJP to hold

simultaneous elections. The problem of holding NAME OF THE MAIN REGIONAL PARTY
rn
simultaneous elections will make our election campaign STATE

culture synonymous to that of United States of America
ou
where all the states vote together and the election is West Bengal All India Trinamool Congress
about the personality of the President and not about the
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Odisha Biju Janata Dal

state issues. This will be a big blow to our federal
na
structure and also the multiparty system.

Bihar Rashtriya Janata Dal, Janata Dal
(United)
io
nt
Andhra Pradesh Telegu Desam Party

er
Telangana Telangana Rastra Samithi

nt
Maharashtra Nationalist Congress Party

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Tamil Nadu Dravida Munnethra

Th
Kazagham, All India Dravida

Munnethra Kazagham
21 Ibid.
*
38
Uttar Pradesh Samajwadi Party, Bahujan amendment to the constitution will be needed to
Samaj Party. prematurely dissolve the assemblies. But why would the
states agree to such a proposal? No democratically
elected government would like to give assent to its
These parties were formed after disintegration of the “Death warrant” by agreeing to premature dissolution
Congress and the Janata Dal which itself was a product for the sake of simultaneous elections.
of the Congress Party. Moreover, these regional parties
ce
have been in power more than once in their respective It is therefore submitted that the idea of simultaneous
states and have been vocal about the needs and demands elections at this point is completely malafide and
en
of their respective states. Here lies the main problem of politically motivated. The reasons why simultaneous
simultaneous elections that is these simultaneous elections cannot be held are as follows:
ud
elections give no place for regional parties to nurture.
And if regional parties do not nurture and bloom then 1. The main idea that is being said to have induced
pr
the demands of the states shall always be ignored. It is the idea of simultaneous elections is cost
mainly because both the Congress and the BJP remains efficiency and time saving. There is no empirical
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focus mostly on their Delhi prospects rather than the data which would show that simultaneous
states. These very reasons contributed to the elections would have less expenditure.
Ju
enhancement of the multiparty system in India and if 2. The second reason that is being cited is that
fresh simultaneous elections are again forced on the election protocol in a state hampers normal life
&
states then democracy in India will start revolving and hence it will be feasible if such protocols are
aw
around 2 parties only. imposed only once. This again is a flawed
intuition given the fact that election protocol is
CONCLUSION not like AFSPA or Section 144 of CrPc. It doesn’t
L
interfere with normal people’s lives to an extent
of
So having discussed the meaning, nature and scope of which can be called disturbing.
simultaneous elections now it is imperative to highlight 3. The problem of simultaneous elections is that the
al
the view of the author regarding the same. The areas of national parties or the big parties will have lots of
rn
federalism and multiparty system was discussed funds to spend while the regional parties will
specifically to draw a picture about the scenario which obviously lack such funds to separately spend for
ou
depicts that whenever any party holds power at the Lok Sabha and Vidhan Sabha polls and hence
Union level and in most of the states, then they tend to national parties will get an undue advantage.
lJ
incline towards the concept of simultaneous elections 4. The national parties will have advantage especially
and inject the idea into the masses in the name of saving the parties fighting for Lok Sabha polls since the
na
election expenditure and better utilization of time. entire campaign would be national focused and
state issues will be sidelined. So the national level
io
But in reality the idea of simultaneous elections is not parties will find it easier to attract voters
nt
only farfetched but against the very basic principles of compared to the state or regional level parties.
parliamentary democracy. The reason being that to hold 5. Even if simultaneous elections are held, and a
er
simultaneous elections 24 state assemblies need to be government falls in between then fresh elections
nt
dissolved prematurely which is a gross abuse of will have to be conducted within 6 months. So the
parliamentary norms of our nation. Premature entire cycle of simultaneous election will again
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dissolution of assembly can only take place as per the break like again like it did in 1967. So again new
provisions of Article 356 of the constitution. But after amendments have to be made to synchronize the
Th
the decision in the case of S.R.Bommai, 22 Article 356 polls. Therefore, it’s a never ending process.
cannot be used rampantly and need to be used with
caution and is always amenable to judicial review. So an
22 SR Bommai v. Union Of India, 1994 3 SCC 1.
*
39
Therefore, in the light of above arguments it can be

safely asserted that the simultaneous election is not only
a superficial idea but is strictly opposed to the ideas of
federalism and multiparty system. The thin line of
thinking which gives birth to the idea of simultaneous
election is to homogenize the political and social order
of India. This idea is very dangerous to the stability of
ce
Indian diversity. Therefore, it is concluded by saying that
the idea of simultaneous elections should be strictly
en
opposed.
ud
pr
ris
Ju
&
L aw
of
al
rn
ou
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na
io
nt
er
nt
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Th
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40
TRADEMARK ON THE CYBERSPACE:

DOMAIN NAMES, ITS IMPORTANCE, DISPUTATIONS RELATING TO DOMAIN NAMES
AND ITS RESOLUTION
SHIRSHAK KUMAR & KUMARI NIDHI
ce
INTRODUCTION importance equivalent to that of a trademark. Domain
en
names no longer were considered to be merely a tool to
As the concept of global village is holding ground, and gain access to the website. Rather, they came to be used
ud
globalization, liberalization and privatization is finding to identify the goods and services which a particular
its way in the minutes of the commercial activities in company is offering, be it online or offline. Suppose
pr
developed, developing, and least developed countries, there is a company who has acquired a distinguishing
the importance of trademark is growing multi-fold. One mark (like TATA) with respect to a particular product,
ris
cannot deny the value a businessman attaches to its the company would also be entitled to acquire that
trademark. People identify a particular product of a domain name (www.tata.com or www.tata.org) as well. Thus,
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manufacturer through its trademark. With the Internet the domain names have been given legal privilege of a
being used in a big way by the businessmen for not only trademark.
&
advertising and promoting their products, but also for
selling them, the principles of trademark, infringement INTERNET CORPORATION FOR ASSIGNED
aw
of trademark and passing off are being applied even in NAMES AND NUMBERS
the online environment. There is an increasing
The Internet Corporation for Assigned Names and
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awareness that any kind of activity with the aid of
Numbers (ICANN) is a technically collaborated body
of
technology which would made the consumer believe
for the internet. It was created in October 1998 and it
that the goods and services being offered on the Internet
has responsibility for IP address space allocation,
al
might be coming from a particular source and thus,

protocol identifier assignment, generic (gTLD) and
induces the consumer to accept such goods and services,
rn
country code (ccTLD) Top-Level Domain name system

should be discouraged. One of the primary areas is
management, and root server system management
Domain Names which has legal protection equal to that
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functions. These services mentioned above were

of a trademark. Other areas we will be discussing is the
originally performed under U.S. Government contract
effect of use of somebody else’s trademark/names in
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by the Internet Assigned Numbers Authority (IANA)

Meta-tags and whether that constitutes trademark
and other entities.
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infringement. Lastly, we will touch upon the issues of

Framing and Linking and their impact on trademarks. ICANN is governed by a diverse Board of Directors
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overseeing the policy development procedure.

DOMAIN NAMES
nt
ICANN’s President directs an international staff,

working from three continents, who ensure that
er
With the emergence and acceptance of Internet by

ICANN meets its operational commitments to the
people across the globe, the concept of trademark took
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Internet community.
a new turn. To access a website, a web address is
required. This web address comprises of domain names.
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gTLD:
As the number of Internet users increased, the
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importance of domain names increased. People started A gTLD is a generic top-level domain. It is the top-level
identifying the domain name with its owner. For domain of Internet address for example: .com, .net and
example, if one is to access the website of APPLE, one .org.
would, in natural sense, presume the website to be
www.apple.com or www.apple.org. This gave the website In addition to the above, seven new gTLDs were also
address/domain name a further impetus and gave it an selected by ICANN on November 16, 2000.
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41
.aero: It is only intended for use of the members of the The administration of a ccTLD is left to the specific
aviation community. The registration procedure of a country concerned. For example, the Administration of
.aero domain name is completed by following 2 steps: Domain Names within the .in (Indian) ccTLD is looked
(a) Identification: before a registrant can submit an after by the NCST. The IANA provides for a Root-
application for a .aero domain name, the registrant must Zone Whois Information Index by TLD Code. This
be recognized as a member of the aviation community Index enlists all the countries with this ccTLD which
and obtain an Aviation Membership ID from the makes for an interesting reading. With the gTLD being
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Registry; (b) Registration: once the registrant has over-used and short in supply, one is now turning to
obtained an Aviation Membership ID, the Registrant ccTLDs. There are quite many instances where the
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can obtain a .aero domain name from an accredited ccTLDs are proving to be more apt to indicate more
Registrar. meaningfully one’s business or profession. Take for
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example, .tv (of Tuvalu) which has been high demand
.biz: It is only intended for domain names that are or by television companies around the world. Another
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will be used primarily for a ‘bona fide business or instance is .md (of Republic of Moldova), a hot favourite
commercial purpose’.
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for medical professionals.
.coop: It is a sponsored gTLD for cooperatives. One Indian (.in)
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has to abide by the .coop Charter.
The Indian ccTLD is .in. Initially, the policy for
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.info: It is an open gTLD without restrictions. registration in India was an extremely restrictive on and
allowed for a registration only if the application was a
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.museum: It is a sponsored gTLD for museums. One
registered commercial entity in India. Owing to demand
has to abide by the .museum Charter.
from several quarters that the policy be liberalized to
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.name: It is an open gTLD for registration of personal incorporate the interest of trademark owners and
of
names of names of fictional characters on the second foreign corporations, the policy was liberalized.
level or on the second and third level (e.g.
Following are the key points of the liberalized policy:
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<Winchester.NAME> or <Dean.Winchester.NAME>).
However, it permits only for personal names of an
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1. New categories of the sub-domains such as gen.in,

individual or of a fictional character provided applicant firm.in and ind.in have been added.
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has a trademark in that name. 2. For a foreign entity seeking to register a domain
name in India, the relevant sub-domains would be
.pro: It is open for unsponsored TLD for qualified
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co.in, gen.in and firm.in.

professionals meeting the registration restrictions.
3. The initial co.in requirement that one has to have
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ICANN is currently exploring possibilities to add a local presence in the form of a branch/liaison,
office has, to a certain extent, been done away with.
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additional gTLDs.
4. The gen.in category has been specifically added for
nt
ccTLD foreign corporations who are unable to meet the

stringent requirements added for a co.in
er
Two letter domains, such as .uk, .fr or .au are called

registration.
country code top-level domains and correspond to a
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5. The earlier requirement stipulating that the name-

country, territory or other geographic location. The
server should be physically present in India and the
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rules and policies for registering ccTLDs vary

domain names applicant should have permanent
significantly and a number of ccTLDs are reserved for
Internet connectivity through an Internet Service
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use by citizens of the corresponding country. A few of

Provider, located in India has been dispensed with.
these ccTLDs were established in the 1980s, but most
of them created in the mid and later 2000s.
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42
IMPORTANCE OF DOMAIN NAMES offline world, serves to identify the goods/services

provided by the company.
The domain name gained importance over the years as
business entities realized that Internet could be a It is also important to realize that in the online world,
convenient mode for not only imparting information there can be only one domain name as opposed to the
but also using it for gaining access to a world-wide possibility of two or more trademarks co-existing in
market and selling its products. Naturally, a company different working spheres. For example, might be selling
ce
would prefer its own trademark to be used as domain garments under the mark ‘Garmin’ in India and
name since people recognize the trademark. So, a somebody else might be selling the same product under
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newspaper like Times of India would prefer the same mark maybe in Australia. One can even have
www.timesofindia.com for the purpose of putting its daily ‘Garmin’ registered as trademarks in different countries
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version online so that everyone around the world could without affecting the other registrations. Leaving apart
read it. On the other hand, even the readers would legal objections, this arrangement is perfectly possible in
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expect that www.timesofindia.com would contain the the physical world. However, the online world does not
online version of the daily, Times of India rather than, permit such technological arrangement. If one person
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maybe, contain a cartoon feature by some unknown owns www.garmin.com, registration of the same domain
individual or worse, some pornographic material. name by another person is not permissible. One might
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register www.garmin.net or www.garmin.org but cannot
The Supreme Court, in Satyam Infoway Ltd. v. register www.garmin.com. In such a situation one might
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Sifynet Solutions (P) Ltd.1, observed as under: conclude that the domain names have a higher degree
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of importance than the trade mark. Even though one
“The original role of a domain name was no doubt to provide an
might be using the trademark ‘Garmins’ somewhere else
address for computers on the Internet. But the Internet has
in the world but it is not affecting one’s business in
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developed from a mere means of communication to a mode of
India, not much damage is done. But domain name is
of
carrying on commercial activity. With the increase of commercial
single. If one registers, another cannot.
activity on the Internet, a domain name is also used as a business
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identifier. Therefore, the domain name not only serves as an LEGAL STATUS OF DOMAIN NAMES
address for Internet communication but also identifies the specific IN INDIA
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internet site. In the commercial field, each domain-name owner

provides information/services which are associated with such The journey of legal protection of domain names in
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domain name.” India has been more or less a favourable one. The
Courts in India have been more patient towards the
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It was further observed that “a domain name as an concept of permitting legal protection to domain names
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address must, of necessity, be peculiar and unique and on a status more or less equal to that of a trademark.
where a domain name is used in connected with a There has been a widespread of realization of
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business, the value of maintaining an exclusive identify importance of legal protection of domain names among
becomes critical.” Therefore, the importance of a
nt
the Indian legal circles right from its very inception and
domain name is no less than the trademark itself. If a the Courts have adopted a more progressive
er
particular trade name has come to be known in the interpretation. There have been disputes between
market to represent a particular commodity or a trademark holders and domain-name owners or
nt
particular company, the general guess of people online between domain-name owners themselves. The Courts
would be that the domain name equivalent to such trade
eI
have uniformly applied the law of passing off to such

name would be used by the such company. The domain domain name disputes. Let us look at a few decisions to
Th
name in the online world, just like the trade name in the appreciate this point.
1. Yahoo Inc. v Akash Arora2
1 2
(2004) 6 SCC 145 (1999) 19 PTC 201 (Del)
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43
This suit was filed by the plaintiff before the HC of The principle underlying the act is that no man is
Delhi seeking a decree of permanent injunction entitled to carry on his business in such a way as to
restraining the defendant from operating any business lead to believe that he is carrying on or has any
or selling, offering for sale, advertising and in any connection with the business carried on by another
manner dealing in any services or goods on the Internet man. After referring to decision in Cardservice
under the domain name ‘YAHOOINDIA.COM’. International Inc. v McGee 3 (relating to
cardservice.com) and Marks & Spencer v. One-
ce
It was submitted that the plaintiff was the owner of the in-a-Million 4 (1998 FSR 265 relating to
trademark ‘Yahoo!’ and domain name YAHOO.COM marksandspencer.co.uk), the Court held that
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which are well known and have acquired distinctive although the word ‘services’ may not find place in
reputation and goodwill. It was submitted that a domain the expression used in Sections 27 and 29 of the
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name adopted by the plaintiff is entitled to equal Trade and Merchandise Marks Act, yet, services
protection against passing off as in the case of a rendered have come to be recognized for an action
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trademark. The plaintiff contended that it would not be of passing off.
unusual for someone looking for an authorized ‘Yahoo!’
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b. There can be no two opinions that the two domain
site with India-specific content to type in names ‘YAHOO.COM’ and
‘YAHOOINDIA.COM’ and thereby instead of
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YAHOOINDIA.COM’ are almost similar except
reaching the Internet site of the plaintiff, such person for use of the suffix ‘India’ in the latter. When both
would reach the Internet site of the defendants.
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the domain names are considered, it is crystal clear
Allegation of cybersquatting was also made. that the two names being almost identical or similar
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in nature, there is every possibility of an Internet
The defendants, on the other hand, averred that the
user being confused and deceived in believing that
Indian Trade Marks Act related only to goods and not
L both the domain names belong to one common
services and there could not be any action of passing off
source and connection, although the two belong to
of
as the services rendered both by the plaintiff and the
two different concerns.
defendants cannot be said to be goods within the Act. It
c. On the ‘literate Internet consumer’ argument, it was
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was also contended that ‘Yahoo!’ is a general dictionary

held that the consumer might be an unsophisticated
word. Further, defendants have been using a disclaimer
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consumer of information and might find his way to

and thus, there were no chances of any deception. The
the defendant’s website providing for similar
contention that the principle of unwary customer which
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information thereby creating confusion.

is applicable in a case of infringement and passing off of
d. The ‘disclaimer’ contention was rejected on the
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the trademark would not be applicable since the Internet

ground that the defendant’s appropriation of
users are technically education and literate persons.
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plaintiff’s mark as a domain name and home page

It came on record that ‘YAHOO.COM’ was registered address cannot adequately be remedied by a
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I plaintiff’s favour with Network Solution Inc. since 18 disclaimer.

Jan 1995. It also came on record that the trademark e. Though ‘Yahoo’ is a dictionary word, yet, it has
nt
‘Yahoo!’ and its variance are registered or pending acquired uniqueness and distinctiveness and is
er
registration in 69 countries across the globe, India being associated with the business of the concerned
one of them. company and such words have come to receive
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maximum degree of protection by courts.5

After appreciation of evidence on record and law on the
eI
subject, the Court held as under: Ad-interim injunction restraining the defendant from
using the domain name ‘YAHOOINDIA.COM’ till the
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a. The present is not for an action for infringement of disposal of the suit was granted.
a registered trademark but an action for passing off.
3 5
950 F. Supp. 737 (1999) 19 PTC 201 (Del)
4
1998 FSR 265
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44
2. Tata Sons Ltd. v. Manu Kosuri6 3. Satyam Infoway Ltd. v. Siffynet Solutions (P)
Ltd.7
In this casethe following domain names were in
question: jrdtata.com, ratantata.com, tatahoneywell.com, This case is the first one from the Apex Court dealing
tatayodagawa.com, tatateleservices.com, tatassl.com, with the legal protection of domain names and has given
tatapowerco.com, tatahydro.com, tatawestide.com and seal to the law laid down by the High Courts that the
tataimken.com. The plaintiff averred that the defendants domain names are entitled to legal protection equal to
had misappropriated the plaintiff’s trademark TATA that of a trademark.
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since a part of a series of domain names that had been
The main question for the consideration of the SC was
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registered by the defendants incorporating the well-
known and famous trademark. whether Internet domain names are subject to the legal
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norms application to other intellectual properties such
The plaintiff contended that it was the registered as trademarks.
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proprietor of TATA since 1917 in relation to various
goods, in various classes. It further had trademarks The appellant, was incorporated in the year 1995,
registered various domain names like www.sifynet.com,
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registered in nine other countries in various classes. The
plaintiff’s case was that since its trademark and name www.sifymall.com, www.sifyrealestate.com, etc. in June 1999
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TATA was already perceived as a household name due with ICANN. The word ‘Sify’ is a formulated word
to the involvement of its companies in almost every which the appellant claimed to have invented by using
elements of its corporate name, Satyam Infoway.
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form of business activity, a business under identical
name would attract actual or potential customers’
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The respondent on the other hand, started carrying on
attention and induce them to subscribe to the services
his business of Internet marketing under the domain
of the defendants or to deal in some manner with the
names www.siffynet.net and www.siffynet.com from June
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defendants operating under the domain names believing
2001.
them to be licensed or authorized by the plaintiff to do
of
the said business. After the respondent refused to transfer the above
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domain names to the petitioner, a suit was filed on the

The defendants did not put in their appearance despite
basis that the respondent was passing off its business
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service.
and services by using the appellant’s business name and
domain name. An application for temporary injunction
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The Court on the basis of the materials on record found

that the plaintiff has been able to prove the averments was also filed which was allowed by the trial court but
on appeal reversed by the HC. The plaintiff/appellant
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made in the plaint.

preferred a special leave to appeal before the SC. Leave
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After discussing the decisions in Yahoo Inc. (supra), it was granted.

was observed that it is now well settled law that with the
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advent of modern technology particularly that relating The respondent contended before the SC that a domain
name could not be confused with ‘property names’ such
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to cyberspace, domain name or Internet sites are granted

protection as a trademark because they are more than a as trademarks. According to him, a domain name is
er
mere address. The rendering of Internet services is also merely an address on the Internet. It was also submitted
entitled to protection in the same way as goods and by the respondent that registration of a domain name
nt
services are, and trademark law applies to activities on with ICANN does not confer any intellectual property
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the Internet. right; that it was a contract with a registration authority

permitting communication to make it to the owner’s
Th
The suit was decreed was the defendants were restrained computer via Internet links and channelled through the
from using the above domain names. registration authority’s server and that it was akin to
registration of a company name which is a unique
6 7
(2001) PTC 432 (Del) (2004) 6 SCC 145
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45
identifier of a company but of itself confers no respondent company’s promoters seemed unsatisfied by
intellectual property rights. any evidence.
After reiterating the principles of passing off, the SC It was also noticed by the SC that admittedly, the
observed as under: appellant was the prior used and had the right to debar
the respondent from eating into the goodwill, it may
“The use of the same or similar domain name may lead to a have built up in connection with the name.
diversion of users which would result from such users mistakenly
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accessing one domain name instead of another. This may occur in A trademark defence of ‘operating in different fields’
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e-commerce with its rapid progress and instant accessibility to users was taken by the respondent. However, the same was
and potential customers and particularly so in areas of specific rejected on the ground that a deceptively similar domain
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overlap. Ordinary consumers/users seeking to locate the functions name may not only lead to a confusion of the source but
available under one domain name may be confused if they the receipt of unsought-for services. Also, on facts, it
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accidently arrived at a different but similar website which offers no was found that the respondent was, on its website,
such services. Such users could well conclude that the first domain- offering software solution, integrating and management
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name owner has misrepresented it goods or services through its solutions and software development which were similar
promotional activities and first domain-owner would thereby lose to services provided by the appellant.
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its custom. It is apparent, therefore, that a domain name may have
all the characteristics of a trademark and could found an action The Supreme Court concluded that in view of finding
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for passing off.”8 of prima facie dishonest adoption of the appellant’s trade
name by the respondent, the investments made by the
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In view of the decisions of various HCs, it was held that appellant in association with the trade name, the
the domain names are entitled to legal protection equal L appellant was entitled to the relief claimed.
to that of a trademark.
PRACTICAL DIFFICULTIES WITH
of
The Court also discussed at some length the provisions TRADITIONAL LITIGATION
of UDRP relating to resolution of domain name
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disputes. It was held that a prior registrant can protect Although domain names disputes gave rise to a strong
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its domain name against subsequent registrants. line of precedents, approaching a court of law came with
its own share of misgivings. While litigation before the
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After looking into the evidence, the SC reached a prima courts, the top three problems are:
facie conclusion that the appellant had been able to
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establish the goodwill and reputation claimed by it in 1. The difficulty of detecting the wrong defendants or
connection with the trade name ‘Sify’. Apart from the of serving the defendants;
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close visual similarity between ‘Sify’ and ‘Siffy’, the 2. The risk of the domain name being transferred if
Court held that there was phonetic similarity between the plaintiff gives a cease and desist letter;
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the two names as well. The addition of ‘net’ to ‘Siffy’ did 3. Even if one gets an injunction, the possibility that
nt
not detract from this similarity. the defendant would obtain registration of alpha-
numeric variations. This makes the enforcement an
er
The Court was not impressed with the argument of the expensive affair.
defendant that the word ‘Siffy’ has been derived from a
nt
combination of the first letter of the five promoters of Therefore, traditional litigation has not been accepted as
a complete solution to domain name dispute problems.
eI
the respondent, namely, Saleem, Ibrahim, Fazal, Fareed

and Yusuf. It was found that the domain name of the
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respondent already stood registered as in the name of

one Mr. C.V. Kumar. Further, ‘Siffy’ as an original
acronym was located on the initial letters of the
8
(2004) 6 SCC 145
*
46
DISPUTE RESOLUTION THROUGH even opt for a traditional litigation, get an order for
UDRP- THE ICANN POLICY transfer of domain name and then approach ICANN
under paragraph 3 of UDRP for transfer of domain
Due to practical difficulties faced due in pursuing name.
traditional litigation in different jurisdictions. The
Uniform Domain-Name Dispute Resolution Policy APPROVED PROVIDERS FOR DOMAIN
(UDRP) was introduced and finally approved by NAME DISPUTE
ce
ICANN on 24 Dec 1999. The UDRP has been adopted
As on date, there are a total of five Approved Providers
by ICANN accredited registrars in all gTLDs. Dispute
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for Domain Name Dispute.
proceedings arising from the abusive registrations of
domain names may be commenced by a holder of 1. WIPO took the lead in becoming the first
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trademark rights. The UDRP is a policy among the approved dispute resolution provider. This was on
registrar and its customer and it is included in 29.11.1999.
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registration agreement for all ICANN accredited 2. National Arbitration Forum, closely followed
registrars.
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WIPO. It was approved on 23.12.1999.
3. On 28.02.2002, Asian Domain Name Dispute
If a trademark holder believes that a domain name
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Resolution Center became Approved Service
registration infringes on its trademark, it may initiate a
Provider for Domain Name Disputes.
proceeding under the UDRP. As indicated above, every
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4. In the year 2008, ICANN approved The Czech
registrant of a domain name has to agree to the Dispute
Arbitration Court Arbitration Center for Internet
Clause of the Terms and Conditions for the registration
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Disputes.
of a gTLD domain name. Therefore, once the
5. From January, 2014, the final approved service
complainant initiates the proceedings, the registrant
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provider so far, Arab Center for Domain Name
must submit such proceedings.
Dispute Resolution (ACDR) began accepting
of
The UDRP empowers the complainants to file a case proceedings.

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with a resolution service provider determining, mainly

the domain name in question, the respondent or holder
CASES UNDER WIPO-UDRP
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of the domain name, the registrar with whom the As discussed above, there are large numbers of domain
domain name was registered and the grounds for the
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name disputes which are resolved annually through the

complaint. Such grounds include, the ways in which the ICANN approved dispute resolution providers. In fact,
domain name is identical or similar to a trademark to
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all the decisions under WIPO has been categorized on

which the complainant has rights; why the respondent the basis of usage of the domain name as also in
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should be considered as having no rights or legitimate accordance with the legal point. A mere look into the
interests in respect of the domain name that is the categories gives an insight as to the importance of a
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subject of the complaint; and why the domain name domain name. For example, domains may relate to
nt
should be considered as having been registered and used association and institutions (be it religious or sports) or
in bad faith. The respondent is offered the opportunity individuals like authors, media, music, film or industry
er
to defend itself against the allegations. The dispute and commerce or education or public sector.
resolution service provider (e.g., the WIPO) appoints a
nt
panelist who decides whether or not the domain(s) Let us study a few decisions rendered under UDRP:
eI
should be registered.
1. Worldwrestlingfederation.com, World Wrestling
Th
It is worth noting that Paragraph 3 of the UDRP permits Federation Entertainment, Inc. v. Michael Bosman,
ICANN to cancel, transfer or otherwise make changes decided on 18 Jan 2000.
to domain name registration in case they receive an This was the first case conducted under the UDRP.
order from a court or arbitral tribunal having competent The proceedings were initiated on 09.12.1999. The
jurisdiction requiring such action. Therefore, one may respondent registered the domain name
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47
<worldwrestlingfederation.com> for a term of two years dollars in revenue. The Backstreet Boys operate a
from October 7, 1999. The complainant provided website at https://www.backstreetboys.com.”
evidence of registration of the following marks:
a. Service Mark – WORLD WRESTLING Respondent has never been licensed by complainant to
FEDERATION, registered for a term of 20 years use the Backstreet Boys trademark. Respondent does
from Jan 29, 1985, with the United States Patent and not offer any goods or services through the websites he
Trademark Office: established with these domain names. Rather upon
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b. Trademark – WORLD WRESTLING entering Respondent’s sites Internet users are diverted
FEDERATION, registered for a term of 20 years to a number of windows displaying advertisements and
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from November 7, 1989, with the United States must click on each of the windows before exiting.
Patent and Trademark Office.
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It was found that the domain names are ‘virtually
The Respondent had registered the domain name and identical and confusingly similar’ to the trademark,
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within three days, offered the same for sale. The respondent’s use of the domain names do not give him
complainant contends that respondent has registered as a legitimate interest in the domain names, and
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a domain name a mark which is identical to the service respondent did register and use the domain names at
mark and trademark registered and used by issue in bad faith. Having concluded that all the
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complainant, that respondent has no rights or legitimate requirements of Para 4(a) of the UDRP have been
interests in respect to the domain name at issue, and that fulfilled, the Panel, pursuant to Para 4(i) of the UDRP,
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respondent has registered and is using the domain name concluded that the registration of the domain names at
at issue in bad faith. The respondent did not contest the issue was to be transferred to the Complainant.
allegations of the complainant.
It was found that because respondent offered to sell the

L aw
3. Calvinklein-watches.com, Calvin Klein, Inc. &
Calvin Klein Trademark Trust v. Rhythm, decided on 28
domain name to complainant “for valuable December 2001.
of
consideration in excess of” any out-of-pocket costs

The Complainants Calvin Klein Trademark Trust and
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directly related to the domain name, respondent has

Calvin Klein, Inc. are respectively the record owner and
“used” the domain name in bad faith as required under
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the beneficial owner of the CALVIN KLEIN

Paragraph 4 (b) (i) of the UDRP. Therefore, pursuant
trademarks (hereinafter referred as the “CALVIN
to Paragraph 4 (i) of the UDRP, the Panel required that
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KLEIN Marks”). The Complainant is involved in the

the registration of the domain name
apparel business and designs, manufactures, markets
<worldwrestlingfederation.com> be transferred to the
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and sells merchandise for men and women and children

complainant.
including watches, shoes, accessories, underwear, jeans,
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2. Backstreetboys.com, Backstreet Productions, Inc. v. cosmetics, home furnishing, sweatshirts and many other
apparel items. In June 1997, the Complainant registered
io
John Zuccarini, decided on 24 August 2001.

the domain name <calvinklein.com> with Network
nt
The various domain names in dispute were: Solutions, Inc.

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backsteeyboys.com, backsreetboys.com, backstreeboys.com, The domain name was registered in August 2000, three
backstreetboyspics.com, backstreetboyspictures.com, years after the registration of Complainant’s
nt
backstreetboyz.com, backstreetsboys.com, backtreetboys.com, <calvinklein.com> domain name and over 30years after
eI
backstretboys.com, bacstreetboys.com and bakstreetboys.com. Complainant began using the CALVIN KLEIN Marks.
Th
The Backstreet Boys are well-known pop singers. The Based on the evidences and contentions presented
Backstreet Boys have licensed a wide range of products before the Panel, the Panel found that the Domain
bearing their trademark, including posters, watches, Name is confusingly in resemblance to the CALVIN
backpacks, musical products, live concert photos, etc., KLEIN Marks and the <calvinklein.com> domain name
which are projected to result in over twenty million in which Complainant has rights.
*
48
The Panel agreed with the contentions of the DISPUTE RESOLUTION OF INDIAN
Complainant that the Respondent had no rights or CCTLDS
legitimate interests in the Domain Name. The
Respondent had an opportunity to demonstrate such The Administration of Domain Names within the .in
rights or legitimate interests but did not do so. (Indian) category is looked after by the Center for
Development of Advance Computing, Mumbai (C-
The Panel found that it was a registered domain name DAC) (formerly National Center for Software
ce
and is being used in bad faith. Technology).
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The Panel therefore directed that the Domain Name be For the purpose of resolution of domain name disputes
transferred to the Complainant. in the in category, NCSTdoes not subscribe to UDRP.
ud
Rather, it has its own policy Indian Internet Domain
4. Mahindra.com, M/s Mahindra & Mahindra Ltd. v.
Name Dispute Resolution Policy, Paragraph 5 of the
Neoplanet Solutions, decided on 7 June 2000.
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said policy empowers the Domain Registrar to cancel,
The Complainant is a well-known manufacturer and transfer or otherwise make changes to Domain Name
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exporter of tractors and utility vehicles. Apart from the registrations. Following circumstances are subscribed
Complainant itself, Thirty Five Companies include for making such changes:
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Mahindra in their names. By reason of the extensive use
of Trade Marks and the name Mahindra. In the various 1. On receipt of written or appropriate and electronic
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Group Companies, the word MAHINDRA, at least in instructions from the applicant/assignee or his
authorized agent.
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relation to motor vehicles, is associated exclusively with
the Complainant. 2. On any direction/orders from a court of law or
arbitral tribunal having its competent jurisdiction,
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The Complainant became aware of the existence of the requiring such action.
of
domain name registration in issue at a date prior to 3. On receipt of a decision of Internet Management
December 13, 1999. Prior to the attorneys’ letter of Group (IMG) requiring such action as above.
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December 13, 1999, they had asked their associates in

According to Paragraph 7 of the Policy, a domain name
Vijaywada to approach Network Solutions informally to
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dispute may arise under the following conditions.

enquire about its registration of the domain name. The
associates were informed that Network Solutions was
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a. Domain name is identical or confusingly similar to

willing to transfer the domain name for the sum of Rs. a trademark or service mark in which the
15000, but Network Solutions “did not reproduce the
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complainant has a rightful claim over i.

demand in writing. b. The registrant has no rights or legitimate interests in
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respect of the domain name.

It was found by the Panel that the Respondent’s domain
c. The registrant has sold/auctioned/transferred the
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name “mahindra.com” was identical to the trademark

domain name to a third party without taking
“MAHINDRA”, the Respondent had no right or
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approval of the Domain Registrar.

legitimate reason for adopting the word “Mahindra” as
d. The domain name has not been used by the
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a domain name and the domain name “mahindra.com”

registrant for over on year.
was registered and being used in bad faith.
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e. A complaint of cybersquatting has been received.

Since the elements of Para 4(a) of UDRP were proved, f. Any other dispute, accepted by the Domain
eI
the Panelist ordered that the domain name Registrar in his own discretion.
“mahindra.com” be transferred to Mahindra & Mahindra.
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A registrant shall be given 15 days prior notice to present

his case. An oral hearing may be granted. The Domain
registrar shall give his decision in writing. An appeal lies
to the Internet Management Group, and thereafter,
before any court in Mumbai.
*
49
META-TAGS any authorization. This raises the legal issue of ‘initial

interest confusion’. For example, X Company inserts in
When we deal with trademarks infringement on the the meta-tags of its website, the trademark of a
Internet, another area of considerable concern is the use competitor, Y Company, so that anybody searching for
of Meta-tags in one’s own website. The HTML code Y Company through a search engine will also, in the
used to create a website has a keyword field. These result to the query, get the website of X company. The
keywords are known as “Meta-tags” since the HTML consumer might click on the address of X company and
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code uses the tag “META” to indicate the keyword field. once taken to the website, though there is no confusion
These meta-tags are not visible to the user looking at the as to the source, still, as the Courts have put it, it does
en
site. However, these meta-tags are essential indicators of amount to ‘initial interest confusion’. The consumer
the search engines. They look for these keywords when after reaching X company might be inclined to review
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searching for a particular website. the products of X company and might be induced to
buy them. In such situation, Y company suffers from
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We should make clear the difference between an
the risk of losing potential customers due to use of its
Internet Directory and an Internet search engine.
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trademark by X company as meta-tags in its website.
Former is more or less like a Yellow Pages directory with
all the entries available under specific categories. One A word about ‘initial interest confusion’ would be apt at
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has to merely click at the categories and sub-categories present. Let us take for example, that you like Pizza Hut.
and locate the entry. On the other hand, a search engine You are on the move and find a sign board saying ‘Pizza
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is like a ‘text-search’ facility that search through the Hut 1 km. on the left’. You take a left, and after a
Internet contents for returning the results on the basis
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kilometre, find Pizza Corner rather than Pizza Hut.
of certain keywords given by the user. Search engine in Though you know Pizza Corner is different from Pizza
turn build up their databases/indexer by using web Hut and though you prefer Pizza Hut, yet, since you
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spiders/robots that scan the Internet for new content have already taken the trouble of taking left and coming
of
and dump in a database for future use. The robots, in a kilometre, you might want to enter Pizza Corner, look
turn, for the purpose of building the Indexer, look for at menu and check ‘just in case’ you like something for
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meta-tags in a webpage’s HTML code. Since meta-tags a bite. This is what is known as the ‘initial interest
are essential for identification of a website, it plays an
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confusion’. Meta-tags are responsible for creating just

important role for any entity wanting consumers to this kind of ‘initial interest confusion’ so that an Internet
reach its website. For example, X company, selling
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user once he reaches a particular website, though knows

watches, might put words like ‘watch’, ‘wrist watch’, well that it was not this website he was looking for, yet,
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‘handmade’, ‘time’, etc. as keywords/meta-tags so that a might stay around for a while and check the contents of
search engine can pick these up and while answering to the website.
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a query for these words, returns the website of the

company X. Let us look into few cases:
io
Now, if someone is hunting for a particular trade name 1. Playboy Enterprises, Inc. v. Calvin Designer
nt
on the Internet via a search engine, the search engine Label.9

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would look into meta-tags of the website and return the

Calvin Designer had two adult websites, namely,
results. However, the problem arises when one inserts a
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www.playboyxxx.com and www.playmatelive.com. It used

trademark/name of a particular company to trick the
‘Playboy’, ‘Playmate’ and ‘Playboy Magazine’ as meta-
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search engine in displaying a particular website as

tags in its website to cash on the reputation and goodwill
containing that particular trademark/name and
of Playboy. Playboy alleged infringement of trademark
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inducing/diverting the consumer to that particular

which was agreed by the District Court and permanent
website. Legal problem arises when one is using another
trademark/name as a meta-tag in his website without
9
985 F. Supp. 1218 (N.D. Cal. 1997)
*
50
injunction was granted enjoining Calvin from using 5. Niton Corp. v. Radiation Monitoring Devices,
Playboy’s trademarks as domain names or meta-tags. Inc.13
2. Playboy Enterprises, Inc. v. Asiafocus In this case, the defendant not only used all trademarks
International, Inc.10 of the plaintiff as meta-tags but also literally copied all
of the meta-tags that plaintiff had used to design its own
In an action against the defendant for trademark website. The Court came to the conclusion that the act
infringement, the court found that the defendants had of the defendant would probably lead an Internet
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purposefully embedded Playboy’s trademarks ‘playboy’ consumer to believe that the defendant is in some way
and ‘playmate’ within its computer source code, which
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either connected to or sponsored by the plaintiff.
is visible to search engines that look for websites Injunction was granted.
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containing specific words or phrases specified by the
computer user. Therefore, once a query for ‘playmate’ is CONCLUSION
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made, the search engine returns a number of websites
including that of Asiafocus. The Court concluded that After reading the above article, it is quite clear that
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consumers would be mislead into believing that the significance of internet domain names has now
website of the defendant is in someway connected to or increased multifariously, both in connection with
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sponsored by the Playboy. The Court gave the decision internet communication and business & commerce on
against the defendant. the internet. As the internet is rapidly becoming a
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popular and highly preferred platform for the
3. Playboy Enterprises, Inc. v. Global Site accelerated flow of business related information, by
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Designs, Inc.11 people and entities in all economic fields, there is an
In this case, Global Site Designs registered two domain imperative need for obtaining proper protection to the
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names that incorporated Playboy’s trademarks, unique domain names, like trademarks and service
marks. This rapidly increasing desirable protection to
of
www.playmatesearch.net and www.playboyonline.net. The
words ‘playboyonline’ was also used in the meta-tags of the internet domain names as Trademarks is now quite
achievable under the ICANN and the WIPO. However,
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the website. The Court found infringement of

trademark and restrained the defendant from using the for the best possible, cost-effective, and rigorous
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plaintiff’s trademarks, Playboy and Playmate, as meta- protection of domain names at the global level, close
harmonization of the trademark laws of individual
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tags or as part of a domain name.

countries worldwide, is also highly beneficial.
4. SNA, Inc. v. Array.12
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The defendants were using the plaintiff’s trademark as

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meta-tags. A block of text repeating the words,

“seawind”, “SEAWIND”, “Seawind” was inserted. It
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was observed that it does not matter what domain name

nt
is. The fact that the trademark was used as meta-tags was
enough to confuse Internet users and hence, the
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defendants were restrained from using the plaintiff’s

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trademarks as meta-tags.
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10 12
[1998 WL 724000 at *2. (E.D. Va. 1998)] [51 F. Supp. 2d 554 (E.D. Pa. 1999)]
11 13
[1999 WL 311707 at *1 (S.D. Fla. 1999)] [27 F. Supp. 2d 102 (D. Mass. 1998)]
*
51
PAGE 60-64
AFFIRMATIVE ACTION FOR WOMEN & HUMAN RIGHTS LAW
Gaurav Khatri | School of Law, CHRIST (Deemed to be University)
PAGE 65-69
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STATE SOVEREIGNTY & THE EXCLUSIVE ECONOMIC ZONE: DEVELOPMENT OF
INTERNATIONAL LAW
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Soham Tuteja |O.P. Jindal Global University, Sonipat
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&
Akriti Sharma | Symbiosis Law School, NOIDA
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PAGE 70-76
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Darshana Paltanwale | Symbiosis Law School, Pune
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PAGE 77-79
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CHANGING DEFINITION OF PRIVATE PROPERTY: INHERITANCE OF DIGITAL ASSETS
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Natansh Jain | NLSIU, Bangalore
PAGE 80-85
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CONSEQUENCES OF HIV/AIDS-A LEGAL PERSPECTIVE
of
Siraparapu sreenivasa rao |Andhra University

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PAGE 86-92
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ENFORCEMENT OF FOREIGN ARBITRAL AWARDS:

PUBLIC POLICY & OTHER CONSIDERATIONS
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Ms. Ambareen Mujawar | Economic Laws Practice

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PAGE 93-97
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PRIVACY JURISPRUDENCE & ITS IMPACT ON THE LGBTQ COMMUNITY

Panya Mathur | School of Law, Christ University, Bengaluru
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PAGE 98-104
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FORENSIC SCIENCE, CRIMINAL INVESTIGATION & ANCIENT WISDOM: AN OVERVIEW

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Amal Debnath | Research Scholar, Department of Law, Tripura University, West Tripura
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PAGE 105-108
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THE CONCEPT OF GOVERNMENT COMPANIES & ARTICLE 12 OF THE CONSTITUTION

Kanika Lahoti | School of law, Christ (deemed to be University)
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PAGE 109-115
ROLE OF INDIAN JUDICIARY VIS-A-VIS HUMAN RIGHTS JURISPRUDENCE
Ms. Madhuri Kharat | Department of Law, Savitribai Phule Pune University
PAGE 116-120
Harshit Singh & Alok Saxena |Amity University, Noida
PAGE 121- 128
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Revanth. A & Vikram. S | School of Law, Sastra Deemed to Be University
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PAGE 129-137
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ENVIRONMENTAL REFUGEES:
A CASE STUDY ON INDIA-BANGLADESH CLIMATIC MIGRATION
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Bhawna Nanda |National University of Study and Research in Law, Ranchi
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PAGE 138-145
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CRIME OF SEXUAL VIOLENCE AGAINST WOMEN DURING ARMED CONFLICT:
VIOLATION OF HUMAN RIGHTS LAW
&
Nehal Loonker | School of Law, Christ University
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PAGE 146-150
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Rishabh Munjal | University School of Law and Legal Studies, GGSIP University
of
PAGE 151-157
REVERSE VEIL PIERCING: AN INSIGHT INTO THE GOVERNANCE OF CORPORATIONS
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Nikitha Prasad | Christ University

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PAGE 158-165
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Aditya.G | School of Law, Christ University

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PAGE 166-171
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Rishabh Singh | School of Law Christ, Bangaluru
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PAGE 172-177
REHABILITATION & RE-INTEGRATION OF CHILDREN IN CONFLICT WITH LAW IN INDIA
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Shubham Khanna |School of Law, Christ

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PAGE 178-185
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INDIA & THE INTERNATIONAL INVESTMENT ARBITRATION

Shubhanshu Mishra | Symbiosis Law School NOIDA
the United Nations Committee on the Rights of the In India, adoption has been an age old practice and
Child expressed concern that Ireland’s inter-country performs a very important function in the society. In the
adoption legislation does not fully correspond with Smritis literature, the law of adoption was parent based
international standards, and recommended that and not child based. The Smritikaras suggested that only
legislative reform remedy this situation 12 . The one son could be adopted for the continuation of the
Commission takes this opportunity to reiterate its family line and to offer oblations to the deceased
recommendation that the 1993 Hague Convention on Inter- ancestors. The Dharmasutras deals in detail with the
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country Adoption be ratified and incorporated into Irish qualifications for the male child to be taken in adoption.
law, and welcomes the Government’s commitment to The adopted son is uprooted from his natural family and
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do so through an Adoption (Hague Convention and Adoption transplanted in to adoptive family like a natural son. But
Authority) Bill to be published in 200713. at present, the law of adoption among Hindus is
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completely regulated by the Hindu Adoption and
The 1993 Hague Convention on Inter-Country Adoption does Maintenance Act of 1956.
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not deal with what the effects of foreign adoption
recognition should be. Instead, Article 26, which deals However, inter-country adoption is a novice concept in
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with recognition of inter-country adoptions, allows a India and yet to gain much ground. The supreme Court
Contracting State to deal with this in its domestic law.53 of India while supporting inter-country adoption, in the
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In that respect, it has been noted that Article 26 case of Laxmikant Pandey v. Union of India 15 laid down
contains: certain guiding principles which were to be followed in
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the cases in of inter-country adoption. It was held
“…a list of the minimal consequences of recognition,
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necessary to bear in mind that the primary object of
which may have to be supplemented by additional rules giving the child in adoption being the welfare of the
included in implementing or already operating in people, great care has to be exercised in permitting the
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legislation in Contracting States”14. child to be given in adoption to foreign parents, lest the
of
child may be neglected or abandoned by the adoptive
LEGAL PROVISION IN INDIA parents in the foreign country or the adoptive parents
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Indian legislation does not have any specific provision may not be able to provide the child a life of moral and
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that lays down principle for inter-country adoption. material security, or the child may be subjected to a
Even, the Supreme Court in the absence of any law moral and sexual abuse or forced labour or
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regulating inter-country adoption refers to Article 15, 34 experimentation for medical or other research, and may
and 39 of the Constitution and Sections 7 to 9 of be places in worse situation than that in his own country.
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Guardian and Wards Act, 1890 for issuing directions to The apex court further went on to lay down certain
perquisites for foreign adoption. In the first place, every
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regulate inter-country adoption.

application from a foreigner desiring to adopt a child
must be sponsored by social or child welfare agency
io
nt
12 See UN Committee on the Right of the Child-Concluding www.taoiseach.gov.ie/index.asp?locID=186&docID=-1. See

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Observations: Ireland 29 September 2006. Available at also the comments made in Dáil Éireann by Mr. Brian
www.ohchr.org/english/countries/ie/ It should also be Lenihan TD, Minister of State for Children that “the Hague
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noted that the 17th World Congress of the International Convention will be transposed into legislation. The drafting
Association of Youth and Family Judges and Magistrates was of the legislation is at a final stage and I hope to publish it
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held in Belfast, Northern Ireland in Autumn 2006. It early next year.” Debate on the Child Care (Amendment) Bill
formulated the Belfast Declaration which states that in order to 2006 Seanad Debates Vol 628 (23 November 2006). Available
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strengthen the international protection of the rights of the at www.oireachtas-debates.gov.ie

child, all States should ratify the Hague Convention on Inter- 14 Duncan “Conflict and Co-Operation; The Approach to
country Adoption. See Conflicts of Law in the 1993 Hague Convention on

www.youthandfamily2006.com/beldec.htm. See also “Belfast Intercountry Adoption” in Lowe and Douglas (eds) Families
Declaration” (2006) International Family Law Journal at 178. Across Frontiers (Martinus Nijhoff Publishers 1996) 577 at 585-
13 See Government Legislation Programme for Spring Session 2007 588.
available at 15 Supra, Note 3.
*
54
recognized or licensed by the government of the country Commission of India in its 153rd report recommended
in which the foreigner is a resident. No application by a for Inter-Country Adoption Act in the year 1994 but
foreigner for taking a child in adoption should be was never put into consideration. The Central
entertained directly by any social welfare agency in India Government dated 24th June, 2011 notified the
working in the area of inter-country adoption or by any Guidelines issued by the Central Adoption Resource
institution or centre or home to which the children are Authority (CARA) to provide for the regulation of
committed by the juvenile court. adoption of orphan, abandoned or surrendered.
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The Supreme Court also insisted upon the age within However, at the international level, India has signed the
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which a child should be adopted in case of inter-country Hague Convention on Inter-country Adoption, 1993 on
adoption, and held that if a child is to be given in inter- January 9, 2003 and ratified the same on June 6, 2003
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country adoption, it would be desirable that it is given in with the view a strengthening international cooperation
such adoption before it completes the age of 3 years. and protection of Indian children placed in inter-
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Such a ruling was delivered by the Supreme Court country adoption. Inter-country adoption processing in
because it felt if a child is adopted by a foreign parent Hague countries is done in accordance with the
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before he or she attains the age of 3 years, he or she has requirements of the Convention; the United States of
more chances of assimilating to the new environment America implementing regulations, as well as the
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and culture. Another important rule framed by the implementing legislation and regulations of India. For
Court during the course of judgment was: the purpose of implementation of the Convention in
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India, Ministry of Social Justice and Empowering is
“Since there is no statutory enactment in our country providing
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functioning as the administrative ministry and Central
for adoption of a child by foreign parents or laying down the Adoption Resource Authority (CARA) as the central
procedures which must be followed in such case, resort had to be authority, which functions as an autonomous body
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taken to the provisions of the Guardian and Wards Act, 1980 under the Ministry of Women and Child Development.
of
for the purpose of felicitating such adoption.” It functions as the nodal body for adoption of Indian
children and is mandated to monitor and regulate in-
Therefore, it may be submitted that in the absence of
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country and inter-country adoption. CARA primarily

any explicit legislation on the subject, the Supreme
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deals with adoption of orphan, abandoned and

Court has played a pivotal role in regulating the adoption
surrendered children through its associated/recognized
of tendered aged children to foreign parents.
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adoption agencies.
The Government of India under Clause 2316 and 2417 of
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At national level, India has prepared a National Policy

the Adoption of Children Bill, 1980 tried to insert
for children in 1974 under which Ministry of Social
provision for inter-country Adoption for the first time
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Justice and Empowerment (now known as Ministry of

and treated it as an unlawful act but it failed due to
Women and Child Development) and has got the
unacceptance of some provisions of the bill by Muslims.
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mandate to enact laws regarding welfare of children. The

The Central Government intended to frame a uniform
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Juvenile Justice (Care and Protection of Children) Act,

civil code which was ultimately rejected. The Law
2000 is a landmark in this regard. This Act has
er
nt
16 Adoption of Children Bill,1980. Clause 23: (1)Except court is satisfied that the applicant intends to adopt a child under the law
under the authority of an order under section 24, it shall not be lawful of or within the country in which he is domiciled, and for that purpose
eI
for any person to take or send out of India a child who’s a citizen of India desires to remove the child from India,either immediately or after an
to any place outsde India with a view to the adoption of the child by any interval, the court may make an order (in this section referred to as a
person.(2)Any Person who takes or sends a child out of India to any
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provisional adoption order) authorizing the applicant to remove the child

place outside India in contravention of Sub-section(1) or makes or takes for the purpose aforesaid and giving to the applicant the care and custody
part in any arrangements for transferring the care and custody of a child pending his adoption aforesaid Provided that no application shall be
to any person for that purpose, shall be punishable with imprisonment for entertained unless it is accompanied by a certificate by the central
a term which may extend to six months , or with fine or with both. government to the effect that : I: the applicant is in its opinion a fit person
17 Adoption of Children Bill,1980. Clause 24: (1 ) if upon an to adopt the child. II.the welfare and interests of the child shall be
application made by a person who is not domiciled in India, the district safeguarded under the law of the country of domicile of the applicant.
*
55
incorporated the provision of adoption of child as an

alternative to institutional care.
The Supreme Court of India has laid down that every

application from a foreigner or NRI (Non-Resident
Indian) or PIO (Person of Indian Origin) desiring to
adopt a child must be sponsored by a social or child
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welfare agency recognized or licensed by the
government or a department of the foreign government
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to sponsor such cases in the country in which the
foreigner is resident. The foreign agency should also be
ud
an agency “authorized” by CARA, Ministry of Social
Justice and Empowerment, Government of India. No
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application should be entertained directly by any social
or child welfare agency in India.
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&
L aw
of
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na
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nt
er
nt
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*
56
THE NEED FOR A NATIONAL COURT OF APPEALS

JEHOSH PAUL
The proposal for a division of authority of the Supreme interpretation of Article 130, the Report also
Court intending to separate the appellate jurisdiction recommended that if liberal approach is not possible,
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from the original jurisdiction as intended by the framers alternatively a policy decision must be taken.
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of the Constitution has been in the works for a
significant amount of time since the making of the Soon after the Report, the questions of possible
structural reforms at the highest echelons of the Indian
ud
Constitution. The Law Commission of India since as
early as 1984, has floated the idea of a bifurcation judicial system were raised before the Supreme Court.
In Vasanthkumar, the petitioner sought for a writ of
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between the original jurisdiction and the appellate
jurisdiction of the Supreme Court due to the mandamus directing the Respondents to consider his
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overburdening of dockets. The 229th Law Commission representation in taking steps for implementation of the
Report stretched the contours of this preceding Report, suggestion of the Constitution Bench of the Court in
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and specifically focused on the ‘Need for division of the Bihar Legal Support Society case by establishing a
Supreme Court into a Constitutional Bench at Delhi and National/ Regional Court of Appeal.
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Cassation Benches in four regions at Delhi, Chennai/
The Court reiterated its stance taken in previous
Hyderabad, Kolkata and Mumbai. The judiciary has
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decisions in the case of Mathai v. Joby George and Anr.,
been active in the endeavor to evaluate the feasibility of
wherein the view was that Supreme Court, under Article
a National Court of Appeal.
136, was not simply a regular court of appeal. The
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In Bihar Legal Support Society v. Chief Justice and jurisdiction of the Supreme Court under Article 136 is
of
Others, the Supreme Court prima facie after hearing the discretionary, and there is no vested right of appeal to a
contention of the petitioner pointed out that it was party in litigation. The Court analyzed concerns
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never intended to be a regular court of appeal against primarily pertaining to speedy disposal of cases to
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orders made by the High Court or the Sessions Court or ensure efficient justice were raised.
the Magistrate. It was created for the purpose of laying
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The arguments in favour of the establishment of a

down law for the entire country and exercise
National/ Regional Court of Appeal are summed up as
extraordinary jurisdiction whenever there is grave
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follows:
miscarriage of justice. The Court in Bihar Legal Support
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Society left the establishment of the National Court of I. The Supreme Court has strayed from its
Appeal on Government through a ‘policy’ decision, original character as a Constitutional Court and has
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however the 229th Law Commission of India Report merely converted itself as a regular court of appeal. It
went a step ahead. The Report, while strongly was shown that there was a cumulative annual growth
nt
recommending the institution of National/ Regional of 6.8% every year, the trend signifies that the cases
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Court of Appeal, brought another dimension to ease the before Supreme Court almost doubles itself every year.
establishment of National/Regional Court of Appeal
nt
through a judicial action.It proposed the setting up of II. The difficulty and adversity of litigants was
highlighted by showing the hardships faced by those
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Cassation Courts through a liberal interpretation of

Article 130 of the Constitution that allows to Chief staying far off from Delhi, where the Supreme Court is
Th
Justice to establish seats at places apart from New Delhi. located. It leads to denial of justice and calls for serious
The provision is an enabling provision and if power is attention to be given to setting up National/ Regional
exercised in furtherance to it, there is no requirement for Court of Appeal.
a policy decision in the form constitutional amendment
by the Government to establish a National/ Regional
Court of Appeal. While recommending a liberal
*
57
PAGE 186-193
Hiba Zaheer | Faculty Of Law, Aligarh Muslim University, Aligarh
PAGE 194-198
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Tanya Bharti | School of Law, Christ University
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PAGE 199-207
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TORT LAW - PHARMACEUTICAL PRODUCT LIABILITY - LACUNAE IN INDIA
Suryanshu Priyadarshi | School of Law, Christ University, Bengaluru
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PAGE 208-212
A LEGAL ECONOMIC ANALYSIS OF E-CONTRACTS IN E-COMMERCE IN INDIA.
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Sneha Dey | School of law, Christ
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PAGE 213-217
AN ANALYSIS ON THE PREVENTION OF CORRUPTION (AMENDMENT) ACT, 2018
PAGE 218-223
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Oorja S. Chari | Government Law College, Mumbai (Mumbai University)
of
A LEGAL & CRITICAL ANALYSIS OF SECTION 377 OF INDIAN PENAL CODE,1861 WITH RESPECT
TO GENDER NEUTRALITY
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Rohit Agarwal | Christ (Deemed to Be University)

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PAGE 224-231
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GENES RESPONSIBLE FOR CRIMINAL BEHAVIOUR? - A LEGAL ANALYSIS

Shreya Eliza Sunny | Christ (Deemed to Be University), Bengaluru
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PAGE 232-234
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TRANSGENDERS IN INDIAN LAW - THE WAY AHEAD

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Rachel Jacob Tharakan | Christ (Deemed to Be University), Bengaluru

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PAGE 235-237
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Shrutika Lakhotia | Christ (deemed to be University)

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PAGE 238-244
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Naina Srivastava | Amity Law School Amity University Lucknow
PAGE 245-249
A CASE COMMENTRY: CARPENTER V. UNITED STATES
Akanksha Badika & Prachi Trivedi | NMIMS School Of Law
PAGE 250-251
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PROTECT OR PUNISH
Rohit Ashok Maheshwary | Christ (Deemed to be University), Bangalore
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PAGE 252-256
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COMPENSATION FOR THE UNDUE PRETRIAL DETENTION:
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Chhaya K | School of Law Christ (Deemed to be University)
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PAGE 257-265
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THE VICIOUS CYCLE OF AGRARIAN CRISIS IN INDIA
Jefferson Christian Osmond Francis | Christ University, School of Law
&
PAGE 266-273
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RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT & ITS IMPLICATIONS
Basil Varughese | Campus Law Centre, University of Delhi
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Karan Dua | Vivekananda Institute of Professional Studies, IP University

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PAGE274-276
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RIGHT TO BODILY INTEGRITY IN LIGHT OF SURROGACY & ORGAN TRANSPLANTATION

Sakshi Agrawal |School Of Law, Christ (Deemed to be University)
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PAGE 277-281
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MINERVA MILL V. UNION OF INDIA

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Shraddha Saxena & Krishankant Sharma | Jagran Lackecity University

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PAGE 282-286
A CRITICAL ANALYSIS OF SEARCH & SEIZURE PROCEEDINGS IN INDIA IN THE LIGHT OF
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ARTICLE 20(3)
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Divya Joseph | Christ [Deemed to Be University]

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PAGE 287-292
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Shreyansh Ajmera | Christ ( Deemed to be University )
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PAGE 293- 299

ARTICLE 370: AN INSIGHT INTO THE POLITICS OF AUTONOMY
Aditya Rathi | Shambhunath Institute of Law, Allahabad
CRITIQUE ON THE CONCEPT OF RULE OF LAW AND

ITS APPLICATION IN THE INDIAN POLITY
MEHAK JASWAL
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“The law ought to be the king and there ought to be no other” of various authors which has led to an array of
definitions to the term ‘Rule of Law’.
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The motto by which free countries of the world live by.
The term “rule of law" means literally what it says: the It traces back to the time of the widely identified
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rule of the law. It retains a place at the center of our concept that ‘the king is under the law’ has been a
political morality and is an ideal, like Democracy. significant and independent source of the rule of law in
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medieval times for Germans. The event of Magna
CONCEPT OF RULE OF LAW Carta, 1215 also serves to be a source for the
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establishment of the concept of Rule of law in the
The basic concept behind rule of law is that the state is
medieval times, a restraining power over the kings.
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not governed by the nominated representatives chosen
by the people but is governed by the rule of law. The Following the above-mentioned concepts came the
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Constitution is the supreme power of the land and the liberalist and federalist approach to rule of law medieval
executive and legislative derive their authority from the natural law thinkers; Enlightenment philosophers such
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constitution. The dynamic concept of rule of law is as Hobbes, Locke, Rousseau, Montesquieu in their
capable of many interpretations for the successful theory of social contracts proposed a limited delegation
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working of the democracy. In simpler terms rule of law of power concept which primarily specified a separation
of
is basically the establishment of a set of rules to govern of the legislative and executive power to assure that the
the arbitrary use power by imposing a set of well-defined government act according to the standing laws.
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and established laws. The idea behind this is that the law Absolute monarchy was also opposed as being
should govern the individuals and not the other way inconsistent with the civil society and establishment of
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around. legislative was held to be necessary. Following the

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concepts of Locke and Montesquieu came the concept

Therefore, supremacy of law is the embodiment of Rule
of Dicey also known as the concept of three pillars.
of law. It refers to ‘a government based on principles of
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law and not of men’. Sir Edward Coke originated the DICEY’S CONCEPT AND THEORY
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formal term rule of law from the French phase ‘la principe
de legalite’ which means the principle of legality. In other In 1885 Dicey said that ‘Rule of Law’ meant the
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words, the concept of ‘la Principe de legalite’ opposes the “absolute supremacy or the predominance of regular
arbitrariness of power. law as opposed to the influence of arbitrary power and
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excludes the existence of arbitrariness, of prerogative, or

As defined by Dicey, means “the absolute supremacy or
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even wide discretionary authority on the part of the

predominance of regular law as opposed to the influence government.”
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of arbitrary power and excludes the existence of

arbitrariness, of prerogative, or even wide discretionary He observed that in France government officials were
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authority on the part of the government.” exercising wide discretionary powers and if there was
any dispute between a government official and a private
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ORIGIN individual, it was not tried by an ordinary court, he

claimed the same wide discretionary powers were not
Rule of law originates from way back from the time of
being exercised in Britain, he claimed that in Britain the
civilization. However, with time, as societies have
Englishmen were ruled by law and law alone, this was
evolved and a change has been there in the perception
not the scenario in majority of countries around the
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1
Dowry Death should be given the right to make a choice about

something which can affect her mentally and physically.
Dowry death can be defined as death of a woman who
is murdered or driven to commit suicide by continuous Rape
harassment and torture by her husband and in-laws in
an effort to extort more dowry. It is where the death is Under Section 375 of the IPC, rape is defined as
caused by any bodily harm or under any unnatural unlawful intercourse done by a man with a woman
without her valid consent. The Section defines
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circumstances within 7 years of marriage. The penalty
for this is provided for under Section 304B of Indian punishment for this heinous crime as at least 7 years of
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Penal Code as life imprisonment or in extreme cases imprisonment which might extend up to 10 or even life
death, if the case has shaken the very foundation of the imprisonment in some cases. The rape law in India has
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society.4 Dowry was legally abolished under the Dowry been modified till a certain extent to include custodial
Prohibition Act of 1961 but we hear cases of dowry rape and misuse of official authority to get sexual favors
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death even in this century when the country has as even in these cases the consent is not willingly given
advanced so much and women are considered to be but subjected to conditions.6
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equal to men, at least on paper.
What makes this law discriminatory is the fact that under
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Right to Abortion the Section 155(4) of Indian Evidence Act states that,
“When a man is prosecuted for rape or an attempt to
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Every woman should have the right to terminate her ravish, it may be shown that the prosecutrix (victim) was
pregnancy if giving birth to the child would mean of a generally immoral character.” But Section 54 of the
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endangering her own life. In India, abortion laws come Act states that, “In criminal proceedings (including rape)
under Section 312 to 316 of IPC, 1860 and Medical L the fact that the accused person has a bad character is
Termination of Pregnancy Act of 1971. Under the MTP irrelevant, unless evidence has been given (by him) that
Act, there is no provision for a woman to terminate her he has a good character, in which case it becomes
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pregnancy. The provisions made for this under the IPC relevant.”
and the MTP Act infringe upon a woman’s right to life
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with dignity, right to privacy and right to health, Also marital rape is still not considered rape under the
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provided for under Art.21 of the Indian Constitution, law which is not fair as even in this case the consent is
singlehandedly.5 If women are not given the permission not given by the wife. Few changes still need to be made
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to abort legally, they will revert to illegal and unsafe to the rape laws in India to make it more victim friendly.
methods of abortion, leading to major health hazards.
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The system to ensure proper enforcement of these

When looking at a sensitive situation like this, the law
provisions itself is corrupt as in police custody too,
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should look at the condition of the living person rather

policemen ask for favors off female prisoners with
than a being that is yet to be born. It is important that a
promises of better living conditions in the prison or
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woman is mentally ready for the responsibility of

favors off wives of male prisoners to let their husbands
bearing and bringing up a child, if not, then the child too
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off jail.7
will suffer due to the inability of the mother to bring
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him/her up properly. In most cases, even when women try lodging complaints
against people who have wronged them, the policemen
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The laws regarding abortion should be altered to let

are not very interested in filing the report. The
women decide whether they want to terminate their
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description of this in the movie Pink is an acute

pregnancy or not. By this statement, I in no way support
representation of what happens in most cases when a
sex-selective abortion. All that I support is that a woman
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woman goes to lodge a complaint. The situation gets
4 VARUN NAIK & MUKESH SAHNI, WOMEN AND 6 CRIME, JUSTICE AND SOCIETY: AN
HUMAN RIGHTS INTRODUCTION TO CRIMINOLOGY, BERGER &
5 Sai Abhipsa Gochhayat, Understanding of Right to FREE & DELLER& O’BRIEN (4th edition)
Abortion under Indian Constitution 7 http://mynation.net/rapelaw.htm
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61
worse when it is a person with high ties in the girls. Special measures should be taken to eliminate
government. The police then try its best to discourage discrimination, universalize education, eradicate
the complainant from lodging a complaint with them. In illiteracy, create a gender-sensitive educational system,
some cases, they even refuse to file a complaint and turn increase enrolment and retention rates of girls and
a blind eye to the problem at hand. Even though we improve the quality of education to facilitate life-long
have a system to control a certain problem, the system learning as well as development of
will not work unless the corruption and biasedness is occupation/vocation/technical skills by women.
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removed from it.8
Reducing the gender gap in secondary and higher
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Rape and sexual harassment do not only physically but education should be a focus area. Sectoral time targets
also mentally imbalance a woman. Though these are not in existing policies can be achieved only with a special
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the only instances. Activities like eve teasing, stalking focus on girls and women, particularly those belonging
also have the power to make a woman insecure and to weaker sections including the Scheduled
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greatly bring down her confidence. Castes/Scheduled Tribes/Other Backward
Classes/Minorities.
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In a society swiftly moving towards modernization,
where women are now provided with education equal to Gender sensitive curricula should be developed at all
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that of men and are given employment opportunities in levels of educational system in order to address sex
places where men work. It is no more an era wherein stereotyping as one of the causes of gender
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women are confined to household work and men have discrimination. A holistic approach to women’s health,
the sole responsibility to provide for the family. Today which includes both nutrition and health services should
both men and women are seen working in the corporate
sector. This is an improvement from the times when
women were only responsible for the household. But
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be adopted and special attention should be given to the
needs of women and girls at all stages of the life cycle.
The reduction of infant mortality and maternal
of
this arrangement will not work until women are given mortality, which are sensitive indicators of human
the security they need, to go to work. With such people development, is a priority concern. To effectively meet
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at large who commit crimes against women just for their problems of infant and maternal mortality, and
pleasure or gain, it makes it unsafe for women to go to child/early marriage the availability of good and
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work. accurate data at micro level on deaths, birth and

marriages is required. Strict implementation of
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Even in politics, though there are reservations for registration of births and deaths would be ensured and
women but only 23.7% of the parliamentary seats from
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registration of marriages should be made compulsory to

the 33% assigned for them, which is far less than the keep a check.10
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parity, is being used. 9 Even in the private sector, the

situation is not any better as women globally occupy less In accordance with the commitment of the National
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than a third of senior and middle level management Population Policy (2000) to population stabilization, this
positions. Involvement of women (in West Bengal) in Policy recognizes the critical need of men and women
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national level and even state level politics seems to have to have access to safe, effective and affordable methods
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been less vigorous as compared to their participation of family planning of their choice and the need to
and contribution at the local level 4% women’s
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representation in the state.

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The only way this situation can be improved is by

providing equal access to education for women and
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8 CRIME, JUSTICE AND SOCIETY: AN 9 http://www.unwomen.org/en/news/in-focus/women-

INTRODUCTION TO CRIMINOLOGY, BERGER & and-the-sdgs/sdg-5-gender-equality
FREE & DELLER& O’BRIEN (4th edition) 10 Jyoti Patra, EDUCATION FOR WOMEN
EMPOWERMENT & GENDER EQUALITY
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62
suitably address the issues of early marriages and spacing which have successfully utilized this vehicle for
of children. 11 mitigating rural poverty. In this regard the SHG
movement added a very significant dimension as it was
Women’s traditional knowledge about health care and to be linked with the micro finance. 12
nutrition should be recognized through proper
documentation and its use should be encouraged. The Men usually tend to dominate political and community
use of Indian and alternative systems of medicine will be decisions, whether communities are matrilineal or
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enhanced within the framework of overall health patrilineal. Even where participatory and inclusive
infrastructure available for women. This is seen in most methods of community development are used, women
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Indian households, as the first things tried when one are often not well represented because village heads
falls ill are home remedies instead of visiting the doctor select participants based on ascribed leadership
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positions, such as household head, and perceived
Self-help groups, too, are being viewed as a good leadership capacity. Women can also be excluded
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solution to reduce the immense gender gap and make because of their preoccupation with household duties,
women more independent. Micro finance programmes which is not fair. It has often been observed that even
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for women are promoted not only as a strategy for when women become members of committees, men
poverty alleviation, but for women’s empowerment as still tend to dominate in the work. As women are an
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well (Mayoux 1996). Since the early 1980’s, important part of the community, building their
empowerment has become a key objective of capabilities to manage communities and community
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development. Micro finance has defined microfinance projects should be enhanced. One measure which has
as “provision of thrift, credit and other financial services
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been taken with some success is to assign specific
and product of very small amounts to the poor in rural, responsibilities to women’s groups in the community.
semi-urban or urban area for enabling them to raise their
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income levels and improve living standards”. The micro Emission reduction credits under the Clean
of
finance approach is; Development Mechanism (CDM) could also potentially
be used to expand energy access and improve energy
a. savings/thrift precedes credit
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efficiency in ways that would provide benefits to women

b. credit is linked with savings/thrift in poor areas, but so far it has been used mainly for
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c. Absence of subsidies efficiency gains in large facilities, and the transaction

d. Groups play an important role in credit appraisal, costs have generally been too high for small-scale
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monitoring and recovery. projects led and implemented by women. Reforms are
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needed to more fully realized the ‘development’ aspect

In this connection, Micro credit through Self Help
of the Clean Development Mechanism. 13
Groups experiments is being viewed today, as one of the
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powerful tools for alleviation of poverty and Technology development and use is widely viewed as
empowering the rural women. As development thinkers
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‘men’s work’. However, in many developing countries,

are constantly in search of practical, workable solutions it is traditionally women’s work to gather wood, provide
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to the deep rooted challenges of poverty eradication, food, and generate income for their own and their
micro-credit through SHGs appears to be an exciting
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children’s needs. It therefore makes sense to enlist

solution by delivering financial services at an women in designing and producing locally-appropriate
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appropriate scale and by mechanisms approachable to energy technologies that they can use for their own
rural people. Micro-credit is capable of reaching out to
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household and income needs, and also market to other

the rural poor, going by the experiences of the countries, women in similar situations.14 Mainstreaming gender-
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11 Namrata Patel, NATIONAL POLICY FOR THE 13Mohsin Khan, Women Empowerment for Sustainable
EMPOWERMENT OF WOMEN Growth, Energy Technologies Climatic Change
12 Shashikala and Dr. H.R.Uma, Self Help Group- A Tool
for women empowerment 14 M.Indumathi & C.Premlatha, WOMEN

EMPOWERMENT FOR RURAL DEVELOPMENT
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63
sensitivity into energy and climate-related policies and learning as well as development of
projects requires a paradigm shift that recognizes occupation/vocation/technical skills by women.
women’s contributions to climate change responses too,
and promotes the development of new opportunities Gender sensitive curricula would be developed at all
for women in the energy sector. To accomplish this goal, levels of educational system in order to address sex
women generally need technical and business stereotyping as one of the causes of gender
management training. discrimination.
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Innovative financing and credit schemes for expansion Special attention will be given to the needs of women in
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of energy services can serve as a catalyst for new the provision of safe drinking water, sewage disposal,
entrepreneurial activities for women, if energy access is toilet facilities and sanitation within accessible reach of
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effectively linked with income-generating opportunities. households, especially in rural areas and urban slums.
Women could use equipment for their own activities, Women’s participation will be ensured in the planning,
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plus also sell energy services to earn income, or actually delivery and maintenance of such services. 17
learn to build, sell, maintain or repair energy
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In recognition of the diversity of women’s situations and
technologies. The ability of women to take advantage of
in acknowledgement of the needs of specially
business opportunities offered by new energy options
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disadvantaged groups, measures and programmes
are often constrained, though, by legal or social barriers
should be undertaken to provide them with special
that limit their property rights, land, tenure, and access
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assistance. These groups include women in extreme
to credit. Government policies are needed that go
poverty, destitute women, women in conflict situations,
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beyond climate change and energy sector planning, and
women affected by natural calamities, women in less
expand women’s overall opportunities for economic
developed regions, the disabled widows, elderly women,
empowerment.15
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single women in difficult circumstances, women
heading households, those displaced from employment,
of
“The role of women as energy providers can be transformed into
suitable micro-enterprises if they can manage fuel wood or oil seed migrants, women who are victims of marital violence,
deserted women and prostitutes etc. Irrespective of their
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plantations, dispense kerosene or LPG, assemble solar panels,

build cook stoves and brick kilns, and even manage electricity conditions of living, women should be allowed to live a
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distribution and bill collection.” Where Energy is Women’s life of dignity. The wishes of women who are involved
Business, ENERGIA 2007 in a certain situation should be respected as they are an
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important part of the society without whom our society

India has also ratified various international conventions is incomplete.
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and human rights instruments committing to secure

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equal rights for women. Key among them being the

ratification of the Convention on Elimination of All Forms of
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Discrimination Against Women (CEDAW) in 1993. 16

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Equal access to education for women and girls will be

ensured. Special measures will be taken to eliminate
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discrimination, universalize education, eradicate

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illiteracy, create a gender-sensitive educational system,

increase enrolment and retention rates of girls and
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improve the quality of education to facilitate life-long

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Mohsin Khan, Women Empowerment for Sustainable

15 16 Namrata Patel, NATIONAL POLICY FOR THE
Growth, Energy Technologies Climatic Change EMPOWERMENT OF WOMEN
17 M.Indumathi & C.Premlatha, WOMEN
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64
STATE SOVEREIGNTY & THE EXCLUSIVE ECONOMIC ZONE:

DEVELOPMENT OF INTERNATIONAL LAW
SOHAM TUTEJA & AKRITI SHARMA
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INTRODUCTION behind a British flag and plaque affirming British
ownership of the West Falklands.
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This paper will be focusing on the Falkland Island
Dispute and the International Law. The project is The Spanish settlement was withdrawn after Spanish
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seeking a solution to the Falkland Island Dispute with rule of South America collapsed in 1810. Possession of
respect to provisions in the United Nations Convention the islands was officially taken in the name of the new
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on the Law of the Sea (UNCLOS) and principles of Argentinian government in 1821, a fact which was
International Law. advertised in the British press. However, it was not until
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1829 - when an Argentinian Commander of the
Sovereignty over the Falkland Islands is disputed by Falklands Islands was named - that Britain protested: in
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Argentina and the United Kingdom. The British claim 1832, the British Navy issued instructions to Captain
to sovereignty dates from 1690, and the United John Strong to ‘exercise Britain’s rights of sovereignty’.
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Kingdom has exercised de facto sovereignty over the
archipelago almost continuously since 1833. Argentina Thus, British forces returned in 1833 and – according to
has long disputed this claim, having been in control of
the islands for a few years prior to 1833. The dispute
escalated in 1982, when Argentina invaded the islands,
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British accounts – successfully persuaded the
Argentinian garrison to leave; however, according to
Argentinian accounts, British forces ‘forcibly ousted’ the
of
precipitating the Falklands War. Contemporary Falkland Argentinian citizens from the islands. Britain then
Islanders overwhelmingly prefer to remain British. They remained in continuous possession until 1982,
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gained full British citizenship with the British notwithstanding frequent Argentine protests.
Nationality (Falkland Islands) Act 1983, after British
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The last major flashpoint occurred in 1982, when

victory in the Falklands War.
Argentinian forces seized the islands for a two-month
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period. Britain
HISTORY OF FALKLAND ISLAND
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– acting legally in self-defense as permitted by Article 51

There is a lack of consensus amongst historical sources
of the UN Charter – recovered the islands and has
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as to who first discovered the Falklands. The earliest

exercised control over them ever since. Argentina has
recorded sighting is said to be around 1500 by
continuously protested throughout that period and in
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Portuguese navigator Vespucci. Spanish historians

1994, it included a provision in its Constitution to try
attribute it instead to Ferdinand Magellan in 1520 on
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and ratify its claim.

behalf of King Charles I of Spain. There is a British
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claim dating from 1592 and, in 1600, Dutch voyager Sebald It is significant that throughout the entire dispute
de Weert named the islands the Sebaldines.
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neither country has sought to refer the question of

sovereignty to the International Court of Justice (ICJ).
The first recorded landing was carried out by the British
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This may be due to doubts as to whether any judgment

Navy in 1690, which was followed by a French landing
would be honored or, more likely, evidence that each
in 1701. The first settlement was made by the French in
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country has lingering doubts about their claim and dare

1764, but the islands were sold to Spain shortly
not risk a judgment against them, for fear of losing face
afterwards, who maintained a colony on East Falklands
on the international stage and an unfettered claim to the
until 1811. Meanwhile, a British landing in 1765
oil and gas reserves reported to be located nearby.
established a settlement on West Falklands. British
settlers were expelled by Spanish forces in 1770; but left
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65
SOVEREIGNITY DISPUTE The Argentine Government does not identify these

annual protests, but authors such as Roberto Laver
It is said that in 1833, Manuel Moreno (representing the claim at least sovereignty claims, both to Britain,
United Provinces) protested against the British domestically in Argentina and to international bodies".
occupation of the islands, and the issue was then In International Law, territorial claims are usually
debated in the Argentine Congress every year until 1849, considered defunct if there is a gap of 50 years or more
with a formal protest issued each year. The British between protests over sovereignty.
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government denies this. It is also stated that the British
rejected the initial protest, and did not answer the Following World War II, the British Empire declined,
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subsequent protests; and that the matter was not raised and many colonies in Asia, Africa and the Caribbean
again in Congress until 1941. gained their independence. Argentina saw this as an
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opportunity to push its case for gaining sovereignty over
The American sealing vessels Harriet and Breakwater the Falkland Islands, and raised the issue in the United
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that had been seized by Vernet brought claims against Nations, first stating its claim after joining the UN in
their insurers, and in 1839 these claims reached the 1945. Following this claim, the United Kingdom offered
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Supreme Court of the United States in the case of to take the dispute over the Falkland Islands
Williams v. Suffolk Insurance Company. The insurers Dependencies to mediation at the International Court
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argued that Vernet was the legal governor of the of Justice in The Hague. On each occasion Argentina
Falkland Islands, the sealing was therefore illegal and so declined.
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they ought not to have to pay. The ruling of the Supreme
Court was: In 1965, the United Nations passed a resolution calling
“The government of the United States having insisted, and

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continuing to insist, through its regular executive authority, that
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on the UK and Argentina to proceed with negotiations
on finding a peaceful solution to the sovereignty
question which would be "bearing in mind the
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the Falkland Islands do not constitute any part of the dominions provisions and objectives of the Charter of the United
within the sovereignty of Buenos Ayres, and that the seal fishery Nations and of General Assembly resolution 1514 (XV)
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at those islands is a trade free and lawful to the citizens of the and the interests of the population of the Falkland
United States, and beyond the competence of the Buenos Ayres Islands (Malvinas)."
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government to regulate, prohibit, or punish, it is not competent for

a circuit court of the United States to inquire into and ascertain A series of talks between the two nations took place
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by other evidence the title of the government of Buenos Ayres to the over the next 17 years until 1981, but failed to reach a
sovereignty of the Falkland Islands.” conclusion on sovereignty. Although the sovereignty
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discussions had some success in establishing economic

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The 1850 Convention of Settlement, otherwise known and transport links between the Falklands and
as the Arana-Southern Treaty, which did not mention Argentina, there was no progress on the question of
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the islands, agreed to restore "perfect relations of sovereignty of the islands.

friendship" between the two countries. There were no
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further protests until 1885, when Argentina included the Following the signing of the Communications
Agreement, on 3 July 1971 the Argentine Air Force
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Falkland Islands in an officially sponsored map. In 1888,

Argentina made an offer to have the matter subject to broke the islands' airways isolation by opening an air
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arbitration, but this was rejected by the British route with an amphibious flight from Comodoro
Government. Other than the protest lodged in 1885, the Rivadavia with Grumman HU-
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British Government did not acknowledge any further

16B Albatross aircraft operated by LADE, Argentina's
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protests by Argentina until the 1940s, although the

military airline. In 1972, after an Argentine request, the
official position of the Argentine Government is that
United Kingdom agreed to allow Argentina to construct
"During the first half of the twentieth century, the
a temporary air strip near Stanley. On 15 November
successive Argentine governments made it standard
1972 a temporary runway was inaugurated with the first
practice to submit protests to the United Kingdom".
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66
arrival of a Fokker F-27; subsequent flights arrived twice These events were not made public until the
weekly. Parliamentary debates in 1982 during the Falklands War.
Flights were improved in 1978 with Fokker F-28 jets, Classification of the Falkland Island Dispute as a
after the completion of a permanent runway funded by Maritime Dispute
the British Government. This service, the only air
connection to the islands, was maintained until the 1982 While the Falkland Islands (Malvinas) are primarily
known for the land dispute between Argentina and the
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war. Also YPF, which was then the Argentine national
oil and gas company, was in charge of supplying the United Kingdom, however the principle of la terre
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island regularly. Whilst maintaining the British claim, the domine la mer and the United Nations Convention on
British Government considered a transfer of the Law of the Sea highlight the maritime importance of
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sovereignty less than two years before the outbreak of this issue. Firstly, the principle of la terre domine la mer
war. However, the British Government had limited puts forth that a State's coast generates maritime zones.
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room for maneuver owing to the strength of the From this we conclude that in the case of the Falkland
Falkland Islands lobby in the Houses of Parliament. Any Islands, Argentina or United Kingdom can get the
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measure that the Foreign Office suggested on the authority to use the resources within the Exclusive
sovereignty issue was loudly condemned by the Economic Zone of the Falkland Islands only if they can
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islanders, who reiterated their determination to remain get the coast of the Falkland Islands. Secondly, Article
British. This led to the British Government maintaining 121(1) of the UNCLOS, to which both Argentina and
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a position that the right to self-determination of the United Kingdom are parties classifies islands into two
parts; the first being proper islands and the second being
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islanders was paramount. But Argentina did not
recognize the rights of the islanders, and so negotiations rocks which can't sustain human life on their own. Both
on the sovereignty issue remained at a stalemate. the parties to the dispute classify the Falkland Islands as
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a part of the first category and pursuant to Article 121(2)
of
In 1976, Argentina landed an expedition in Southern such an island is entitled to territorial waters (12nm),
Thule, an island in the South Sandwich Islands which at contiguous zone (24nm), exclusive economic zone
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that time was part of the Falkland Islands Dependency. (200nm) and continental shelf (200nm). Thirdly, the
The landing was reported in the UK only in 1978, waters surrounding the Falkland Islands are not only
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although the British government issued a rejection of rich in hydrocarbons and minerals but provide the
the notion of sending a force of Royal Marines to owner a very geographically strategic location and a
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dismantle the Argentine base Corbeta Uruguay. potential for large scale fisheries.
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There was a more serious confrontation in 1977 when History of the Falkland Island Dispute and the
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the Argentine Navy cut off the fuel supply to Port inferences drawn from them
Stanley Airport, and said they would no longer fly the
Timeline
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Red Ensign in Falklands waters. (Traditionally ships in

a foreign country's waters would fly the country's
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The French landed on the Falkland Islands in 1504.

maritime flag as a courtesy.) The British Government
However, the French gave up their ownership to Spain
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suspected Argentina would attempt another expedition

as the two countries had very peaceful relations with
in the manner of its Southern Thule operation. James
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each other. Spain continued to possess the islands but

Callaghan, the British Prime Minister, ordered the
following the
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dispatch of a nuclear submarine, HMS Dreadnought

and the frigates Alacrity and Phoebe to the South Treaty of Utrecht and a war which they won, the British
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Atlantic, with rules of engagement set in the event of a gained ownership over the Falkland Islands. The British
clash with the Argentine navy. The British even continued to possess the islands till 1982 with the
considered setting up an exclusion zone around the exception of a two-month military rule by the
islands, but this was rejected in case it escalated matters. Argentines. Again in1982, the Argentina invaded the
Falkland islands and initiated what is commonly known
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67
as the Falkland Island war which the United Kingdom Uti possidetis juris is a principle of international law
with its military prowess easily won further solidifying according to which provides that a newly formed
their ownership. The most recent activity took place in sovereign state should have the same borders that their
2013 when a referendum took place in the Falkland preceding dependent area had before independence.
Islands and 92% of the population voted to stay with Argentina argues that when it gained independence
the United Kingdom. What needs to be noted is that the from Spain, the Falkland Islands belonged to the
entire dispute has been over maritime resources that the Spanish and using this principle Argentina should get
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waters surrounding the Falkland Islands offer to the the Falklands. To the contrast, the United Kingdom
owner. argues that it had occupied the Falkland Islands in the
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late 18th century and had settled there due to which
Nootka Sound Convention United Kingdom should get the islands.
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The first Nootka Convention plays a role in the disputed Right to self-determination and the 2013 Falkland
pr
sovereignty of the Falkland Islands between the United Island referendum
Kingdom and Argentina. Article VI provided that
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neither party would form new establishments on any of Right to self-determination grants all citizens of a
the islands adjacent to the east and west coasts of South particular state/region the power to determine their
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America then occupied by Spain. Both retained the right political status and freely pursue their economic, social
to land and erect temporary structures on the coasts and and cultural development. In 2013, a referendum was
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islands for fishery-related purposes. However, there was held in the Falkland Islands to estimate what the citizens
an additional secret article that stipulated that Article VI prefer to be a part of- United Kingdom or Argentina.
shall remain in force only so long as no establishment
shall have been formed by the subjects of any other
power on the coasts in question. This secret article had
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According to the referendum, 99.8% of the residents of
the islands chose to remain with the United Kingdom.
However, the Argentinian government alleges that the
of
the same force as if it were inserted in the convention.
However, nit did not question the existing colonial population that has voted was dominated by the British
population implanted on the islands. Furthermore, the
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settlements and due to this very reason United Kingdom

claims these islands and denies any sense of illegality as legislative assembly of Falkland Islands echoed that the
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it is consistency with Article 26 of the Vienna claims made by Argentina were unfounded and were
Convention on the Law of Treaties (VCLT) i.e., Pacta against the will of the residents of the Falkland Islands.
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Sunda Servanda which states that what one signs is what

Role of the United Nations
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one abides by. Therefore, by adhering to the Nootka

Sound Convention the United Kingdom has the The United Nations Special Committee — known
na
inherent right to use the maritime resources surrounding formally as the Special Committee on the Situation with
the Falkland islands. regard to the Implementation of the Declaration on the
io
Granting of Independence to Colonial Countries and

Uti Possidetis and Uti Possedetis Juris
nt
Peoples — reiterated that the way to put an end to the

Uti possidetis is a principle in international law that “special and particular colonial situation” of the
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territory and other property remains with the possessor Falkland Island (Malvinas)
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at the end of a conflict, unless otherwise provided for

was the “peaceful and negotiated settlement of the
by a treaty. Argentina argues that it has the ownership
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dispute over sovereignty” between Argentina and the

over the Falkland Islands because after losing the war,
United Kingdom. International and regional views
Spain never transferred the land to United Kingdom
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through this principle and furthermore France never Argentina has pursued an aggressive diplomatic agenda,
tranferred the Falkland Islands to Spain through a regularly raising the issue and seeking international
comprehensive treaty. support. Most South American countries have
expressed support for the Argentine position and called
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68
for negotiations to restart at regional summits. The is likely that the Anglo-Argentinian relationship with
People's Republic of China has backed Argentina's regards to the Falkland Islands will remain rocky.
sovereignty claim, reciprocating Argentina's support of
the Chinese claim to Taiwan. Conversely, the Republic Conflicting doctrines of self-determination and national
of China (Taiwan) acknowledges British sovereignty and sovereignty leads to a convoluted legal path, thereby
ignores Argentina's sovereignty claim. delaying the resolution process. Alongside, the question
of geographical proximity versus demographic
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Since 1964, Argentina has lobbied its case at the dominance needs redressal. Argentina should allow the
Decolonization Committee of the UN, which annually International Court of Justice to intervene to resolve the
en
recommends dialogue to resolve the dispute. The UN interpretation of law in this case. Else, both the
General Assembly has passed several resolutions on the countries, being responsible member states, must put
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issue. In 1988, the General Assembly reiterated a 1965 their heads together and come to peaceful solution.
request that both countries negotiate a peaceful
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settlement to the dispute and respect the interests of the
Falkland Islanders and the principles of UN GA
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resolution 1514.
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The United States and the European Union recognize
the de facto administration of the Falkland Islands and
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take no position over their sovereignty; however, the
EU classifies the islands as an overseas country or
territory of the UK, subject to EU law in some areas.
The Commonwealth of Nations listed the islands as a
British Overseas Territory in their 2012 yearbook. At the
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of
OAS summits Canada has continued to state its support
for the islanders' right to self- determination.
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CONCLUSION
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It seems therefore that the strongest (and perhaps the

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only valid) claim to title over the Falkland Islands is

vested in Britain, and comes via the avenue of
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acquisition by conquest. Although there is now a

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prohibition of the acquisition of title in this way, the

doctrine of intertemporal law prevents that prohibition
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from vitiating this claim.

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However, Britain’s reluctance to pursue this claim in the

ICJ renders it unlikely that the Falklands dispute will
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ever be resolved in such a manner. The notion of using

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conquest to acquire territory is very anachronistic, to the

extent of being diplomatically suicidal – even the use of
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the term is likely to be controversial.

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It is submitted that it is more likely that a treaty

determining sovereignty will finally end the dispute. But
given the political situation and public opinion in both
countries presently, this will be years hence: for now, it
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69

DARSHANA PALTANWALE
INTRODUCTION came up with its own legislation to deal with the
ce
aforementioned issue.
Laws of a nation must demonstrate a metamorphic
en
characteristic. They must change and reform with time, HISTORY
and such change must be in accordance with the social,
ud
legal and economic requirements pertaining to that time. The Government of India recognized several severe
Similarly, it’s essential to identify certain flaws that exist problems with the economic and market functioning of
pr
in a legislation, and to review and amend such fallacies the nation in the 1960s. Business enterprises engaged in
or shortcomings. In this case, the Competition Laws had blatant false advertising schemes and malpractices that
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been introduced in India to avoid anti-competitive left the consumer without a remedy.
conduct by the firms in a market, so as to provide a legal
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security blanket to secure the social and economic The Directive Principles of State policies, enshrined in
interests of the other partakers of the market and the Part IV of the Indian Constitution, in particular, clauses
&
consumers of the resultant products and services. (b) and (c) of Article 392, place the following duties on
the Government-
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Intervention of law in this sector, instead of there being
a laissez-faire capitalistic market, is essential due to the
1) that the ownership and control of material
catalytic impact of the economic activities of the market
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resources of the community are so distributed as
on the society in general, as well as on the economic
of
to best serve the common good; and
health of the nation.
2) that the operation of the economic system does
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That being established, the issue of firms colluding, not result in the concentration of wealth and
means of production to the common detriment.3
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especially in oligopoly markets with fewer firms and

greater stronghold over the market concerned, has been
Consequently, the Monopolies and Restrictive Trade
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an issue of great concern since ages.

Practices Act, 1969 (MRTP) was introduced in order to
curb the aforementioned practices. But prior to that, in
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“People of the same trade seldom meet together, even for

merriment and diversion, but the conversation ends in a 1964, the Government had appointed the Monopolies
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conspiracy against the public, or in some contrivance to Inquiry Commission. This commission was entrusted
raise prices.”1 with the task of monitoring the accumulation of
io
economic power within a few hands. 4 Upon the

nt
In his book, Adam Smith too, has expressed his concern recommendation of the Dutt Committee, it was enacted in
with respect to the motives of firms in a market, and the 1969, and subsequently, the Monopolies and Restrictive
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extent to which they can ‘bend the rules’ to meet such Trade Practices Commission was instituted 1970.5
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ends. To tackle such predicaments, the Governments of

several nations came up with laws to curb anti- These steps were undertaken in order to prohibit
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competitive practices. The Indian Government too, monopolistic and obstructive trade practices. Most
infamous of the aforesaid cases being the Colgate-
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1 ADAM SMITH, AN INQUIRY INTO THE NATURE AND 4 Dr. S. Chakravarthy, “MRTP Act metamorphoses into
CAUSES OF THE WEALTH OF NATIONS (3rd ed. 1801) Competition Act”, Consumer Unity & Trust Society (2003).
2 Ind. Const., art 39. 5 RAVI KARAN SINGH, RESTRICTIVE TRADE PRACTICES AND
3 Government of India 2007, Report: Chapter IV, The
PUBLIC INTEREST (1989).
Monopolies and Restrictive Trade Practices Act, 1969, policies,
provisions and performance. Ministry of Corporate Affairs.
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70
Pepsodent advertisement rivalry. To safeguard the Theorists have propounded that if an economy is kept
purpose of the Act, the government appointed the liberated, and is solely governed by market forces, with
Sachar Commission in 1970 to review the functioning no legislations in place, the market players, on their own,
of the Act, and streamline the judicial process in this would put competitive outcomes into effect. However,
regard. Thereafter, requisite changes were made in 1980, in an economy which had just opened its doors to the
1984 and 1991, in order to facilitate proper execution of world, the influx of multinational companies from
the law.6 Prior to the liberalization of the economy, the developed nations, would have crushed its local
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“Licence Permit Raj” secured the economic interests of businesses. Yet, the act does not curb the competition,
the members of the market. However, post 1991, a need rather, invigorates it in a positive manner, and keeps it
en
to alter the laws was felt. Thereafter, the law was restricted to permissible limits. 9 Conversely, severe
repealed in September 2009. It was considered nugatory protection of such enterprises was also not considered
ud
upon the introduction of the Competition Bill, 2001 by to be a healthy practice, as there must be a fair
Arun Jaitly in the Lok Sabha on 6th August 2001. 7 engagement amongst all market players. Additionally,
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Thereafter, the application of the Competetion Act investors, businesspersons, innovators and financial
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became prevalent in the cases concerned. institutions were to be encouraged to enter and engage
in the market, so as to benefit the consumers, as well as
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THE COMPETITION ACT, 2002 themselves. 10 Nonetheless, it is important that a level
playing field be maintained for an inclusive market
The draft of the Competition Bill, 2001 and repeal of
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buildout. The Bill aims at provision for the institution of
the MRTP gained the approval of the Union Cabinet, a Commission to preclude AAEC, that is, Appreciable
aw
which concurred upon its functions being establishment Adverse Effect on Competition, promotion and
of the Competition Commission of India (CCI), curbing sustenance of competition in Indian markets, protection
anti-competitive agreements, regulation of mergers and
L of the interests of consumers, and ensuring autonomy
acquisitions (and various types of combinations), of economic action of the market partakers in India and
of
prohibition of abuse of dominance, defining various for matters connected therewith.
types of agreements and their components, nature of the
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components in question, taking into account the To achieve the aforementioned objectives, the Act flags
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economic interests of the market players.8 down three different ways in which anti-competitive
practices flourish-
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This Act was formulated in the post-economic

liberalization era. Therefore, it took into account the a. Anti-competitive Agreements-
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scenario where it was essential for the Indian economy

to integrate itself with the economy of the rest of the There are two types of agreements that are taken into
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world, as a part of the globalization process. COMPAT account in this case-

(Competition Appellate Tribunal) was also established
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to dispose of the appeals against any CCI order. The  Horizontal Agreements, may be oral or written
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Competition Act also offered an extensive array of agreements, which take place amongst enterprises
options to consumers at equitable prices, and enthused operating at the same level in a market, and are
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a revolution in the market, with respect to research, prima facie rivals. Such agreements might include
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development, innovation and productivity, thereby fixing prices, regulating production, storage,
leading to optimal allocation of resources. distribution or control of goods and services,
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geographical allocation of the market, bid-rigging,

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6 UMA KAPILA, INDIAN ECONOMY SINCE INDEPENDENCE 8 PRASANNA CHANDRA, FINANCIAL MANAGEMENT:
(1993). THEORY AND PRACTICE (2015).
7 “Competition Bill introduced” The Hindu, August 7, 2001. 9 ANIL K. THAKUR, GROWTH THEORY AND
Accessed November 16, 2017. GLOBALISATION OF INDIA (2009).

http://www.thehindu.com/2001/08/07/stories/0207000q. 10 EINER ELHAUGE & DAMIEN GERADIN, GLOBAL
htm. COMPETITION LAW AND ECONOMICS (2011).
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71
collusive rigging, etc. However, IPR agreements vis- b) Evaluating the market strength to establish
à-vis rule of reason, are an exception to the general whether the enterprise possesses substantial
prohibition. Additionally, Section 3(3) precludes the influence.
application of the presumptive rule in case of a Joint c) Appraise whether the behavior of the enterprise
Venture, again, subject to the Rule of Reason. amounts to abuse. 11
The Rule of Reason weighs the pro-competitive
features of a practice against its anti-competitive Ultimately, upon deliberating on all of these factors, it is
ce
impacts. The conclusion that they arrive at, based determined whether a firm holds a dominant position in
on the net impact of the practice on the market, the market or not. For instance, if the enterprise
en
determines whether the practice shall be deemed leverages its dominance for its benefit, the evidence
acceptable, or shall be precluded by the competition collected and the data provided by the informant
ud
authorities. indicates abuse of dominant position, and the market
 Vertical Agreements, on the other hand, are share of the enterprise in question is calculated to be
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agreements that are entered into, by parties that 41.79%, the enterprise is concluded to have abused its
dominant position.12
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operate of different levels of the market. Such
agreements may include refusal to deal, exclusive
c. Elimination of competitors through
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distribution arrangement, tie-in-arrangement, resale
amalgamations/acquisitions and mergers-
price maintenance, exclusive supply agreement etc.
&
However, Section 3(4) also only prohibits the
An efficient method adopted by several enterprises to
practice in question, if AAEC is established.
dominate a market, is to acquire the firms which operate
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 CCI also takes into account, the instances, where in the same market. ‘Merger’, as a term in the
creation of barriers to new competitors in the competition act, includes amalgamation and acquisition
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market, driving the current contenders out of the of shares and exercise of control over the assets and the
market, foreclosing the competition by
of
voting rights of the concerned enterprise. In some cases,
encumbering access to the market, accrual of perks they might prove to be beneficial to the consumers, as
to consumers, enhancements in production or
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they allow the enterprises to pool their resources and

distribution of goods or services, etc. takes place, operate more efficiently. Mergers result in economies of
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evaluates if it is a case of AAEC, and thereafter, scale and scope, upgrade in technology, facilitate a
determines the outcome.
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greater access to capital, and escalate productivity, which

will in turn, improve the nation’s position with respect
b. Abuse of Dominant Position-
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to international competition. However, if, upon

examination, it is discovered that such a
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The requisite characteristics of a dominant enterprise,

merger/acquisition or amalgamation will result in an
are determined by its ability to disregard the external
unfair advantage to an enterprise, or shall decrease the
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human factors of the market, such as competitors and

level of competition in the market, or shall impact the
consumers. The enterprise in question has the ability to
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consumers adversely, it shall be deemed anti-

influence these factors in such a manner, that it can
competitive.
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derive benefits from the said manipulation.

Thereafter comes the threshold between regulation of
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To establish whether abuse of dominant position

mergers and adopting anti-cartel policies. Enforcement
has taken place, following steps are undertaken-
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of anti-cartel policies, at times, drives the enterprises

into adopting seemingly licit methods to achieve
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a) Determining the relevant market.

unscrupulous ends.13 The most significant example of
T RAMAPPA, COMPETITION LAW IN INDIA POLICY, ISSUES

11 A. C. Langlais & J. P. Tropeano, “Fight Cartels or Control
13
AND DEVELOPMENT (2009). Mergers? On the Optimal Allocation of Enforcement E§orts

12 Xyz v. Rec Power Distribution Company, 33 CCI (2016).
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72
such a behavior, was the Sherman Act, which down in Consumer Online Foundation Informant v. Tata Sky
constrained the formation of cartels, but ended up Limited & Ors.16, wherein the court observed that the
encouraging the firms to combine instead, leading to a concept of ‘collective dominance’, which had evolved in
wave of mergers at the turn of the century.14 However, jurisdictions such as the European Union, does not exist
the determination of whether or not a merger is anti- in India. it held that the term ‘group’, mentioned in
competitive, is a ‘walk on a tightrope’ situation. Section 4 of the Act, did not refer to a group of
autonomous and distinct enterprises or corporate
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The Act has overcome several fallacies of its entities. Rather, it refers to a group of enterprises, which
predecessor. It takes into account lawful boundaries that share a commonality with respect to their management
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secure the interests of the consumers, and integrates and control or equity. According to the court, only the
them with the economic aspirations of individuals and firms which have joint management control, can have a
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of the nation as a whole. Despite taking a tremendous collective decision making, and thus, can exercise their
leap from what competition law used to be in our influence as a whole. The entity in question, even if it is
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nation, with time, we need to identify the inadequacies a combination, should be a discernible artificial judicial
and amend the act accordingly.
ris
person, such as an association of persons (AOP) or a
body of individuals (BOI). Since the parties in this case
SHORTCOMINGS OF THE ACT
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are neither an association of persons, nor a body of
individuals, they cannot deem it to be an “enterprise”,
One of the glaring foibles of this Act, and the general
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and thus, cannot exercise dominance over the market
approach of the Competition Commission, can be
concerned. Thus, the concept of “collective
recognized while analyzing the judgement of Dish TV
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dominance” has been completely overlooked by CCI.
India Limited v. Hathway Cable & Datacom Limited and
ors.15 In this case, the informant alleged that the MSOs Dialogs and deliberations as to how Section 4 must be
L
(Multiple Service Operators) were charging high carriage amended, in order to introduce this concept into our
of
and placement fee, and were under-reporting the statutes, have taken place several times. The
subscribers. The informant claimed that it was abuse of propositions to do so, were made so as to align the Act
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dominant position under Section 4 of the Competition with Article 82 of the EC Treaty, with respect to the
Act, as the payment of such high fee by the broadcasters
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recognition of collective dominance in the European

was reducing net content cost of the MSOs, vis-à-vis the Union, as the Article begins with the phrase- “any abuse
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DTH operators, rendering the DTH operators unable by one or more undertakings of a dominant position”.
to compete with the MSOs in question (Hathway Cable Article 82 aims at the creation of a mechanism to control
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& Datacom Limited, Gujarat Telelink Private Limited, the economic power of enterprises that have a strong
Fastway Transmission Private Limited, DEN Networks hold over the market. This is done in order to prohibit
na
Limited, Sumangali Cable Vision, and Siti Cable abuse of power by such firms. It also recognizes the
Network Limited) despite possessing a superior form
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ability of such firms to collectively dominate the market

technology, and having access to a wider customer base. and abuse their position. In the Italian Flat Glass case,
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They claimed that the conduct of the aforementioned Fabbrica Pisana SpA, Società Italiana Vetro - SIV SpA
MSOs resulted in a violation of Section 4(1) of the and Vernante Pennitalia SpA, were declared to have
er
Competition Act, r/w Section 4(2)(a)(i), 4(2)(c) and violated Article 85(1) of the Treaty, as they had
nt
4(2)(b)(i). Further, the definition of a ‘group’, is that restricted the competition in the flat glass industry
which is laid down in Section 5. Taking into account all market. These three companies had exercised a
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of these factors, CCI reiterated the observation laid considerable influence over the market, and their
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within Competition Policy”, Paris School of Economics 15 Dish TV India Limited v. Hathway Cable & Datacom Limited
Publications. and ors., 78 CCI (2013).
14 A. Orlando, “An Early Assessment of the Sherman 16 Consumer Online Foundation Informant v. Tata Sky Limited &
Antitrust Act: Three Case Studies”, Wharton Research Ors., 2 CCI (2009).
Scholars Program.
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73
collective dominance and unfair trade agreements that discounts to consumers as a way of expanding the
had lasted from 1983 to 1986 were recognized by the customer base. However, the same cannot be said about
courts, and they were fined with 7,000,000 ECU, independent taxi drivers, cab owners and other small
4,700,000 ECU and 1,700,000 ECU respectively. 17 enterprises. Despite this fact being evident, the courts
European laws recognize the fact that two independent have allowed the companies to run their businesses,
economic entities, when linked by economic interests, merely on the basis of a technicality.20 This implies the
can come together and assume a dominant position vis- fact that the judicial institutions only credit market share
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à-vis their competitors. For this, two factors must be as an indicator of a dominant position. Therefore, it
established- (i) The existence of the collective entity, and allows the enterprises to carry out unfair trade practices,
en
(ii) The fact that such an entity holds a dominant merely because no action is taken up against them as the
position in the market. 18 The rationale behind such a “abuse of dominant position” cannot occur without the
ud
decision, is sound, and worthy of being incorporated prima facie establishment of the existence of a dominant
into the Indian legal system. position. This form of adjudication begs for a question,
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that will such abuse only be punished when, upon
Very recently, the Ministry of Corporate Affairs,
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extensive use of such practices, the enterprises will
Government of India, issued a notification, which has become so affluent and wealthy, that they will inevitably
scrapped the filing timeline of 30 days from the date of
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become “dominant” as prescribed within the strict
the trigger document. This proves that the ministry is boundaries of the definition inscribed in the act, and
relaxing certain rules to make it easier to operate, and is
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only then shall the court take any cognizance of their
encouraging the expansion of the scope of application anti-competitive practices?
aw
of the Competition Law. In fact, Chief Justice K.G.
Balakrishnan has stated that reliance on precedents from If such actions are ignored for a long period of time,
other nations is essential in certain categories of until the aforementioned scenario takes place, and the
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adjudication.19 Conforming to his words, and relying on enterprise or enterprises inevitably assume a “dominant
of
the sound jurisprudence of the foreign statutes, India position”, that the court shall deem upon the calculation
must recognize collective dominance as a practice that of their market share, they already would have
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is exploiting the loopholes and shortcomings in our eliminated most of their competitors, and would have
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statutes to engage in anti-competitive practices. . taken steps to extract profits by whatever means
necessary; by compromising ethics, welfare of the
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Another deeply flawed aspect of CCI’s functioning, is consumer, economic health of the nation and the quality
that market share is the sole determinant of establishing of the products or services offered. Would
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whether an enterprise is dominant in a market or not. In precautionary measures not be a more appropriate
the infamous Ola and Uber proceedings, wherein the option, instead of allowing the enterprises to annihilate
na
enterprises were accused of adopting predatory pricing, the market in question, and only then take punitive
thereby depicting anti-competitive behavior, the Delhi
io
measures? Preventing the damage in the first place,

High Court held that since the firms did not hold a instead of replenishing the competitive spirit of the
nt
“considerable market share”, they could not be deemed market, and its engagement with consumers after the
to be “dominant”, and since they did not hold the damage has been done, seems a more viable option.
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dominant position, they could not abuse it. Though on

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the offset, Ola was prima facie found guilty, the

investigation in this respect still continues. Both the
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companies have deep pockets that can withstand heavy

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17 Societa Italiana Vetro SpA v. Commission, ECR II-1403 20P. Singh, “The price of unfair competition”, The Hindu,
(1992). September 6, 2016. Accessed November 17, 2017.
18 Hoffmann La-Roche v. Commission, ECR 461 (1979). . http://www.thehindu.com/thread/economy/the-price-of-
19 Chief Justice K.G. Balakrishnan, “The Role of Foreign unfair-competition/article14624972.ece
Precedents in a Country’s Legal System”, Lecture at
Northwestern University, Oct. 28, 2008. .
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74
PROPOUNDED AMENDMENTS entities that come together for a specific purpose, and
use anti-competitive methods to achieve such ends.
Amending a statute is an essential process to keep it
from becoming archaic, to keep it up to date with the Secondly, there have been numerous cases, such as the
contemporaneous economic, social, political, DLF Limited in Belaire Owner’s Association v. DLF Limited
environmental and legal requirements, and most case in Gurgaon, wherein the Competition Commission
importantly, to rectify the errors that were made while viewed the relevant market in an excessively restricted
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the formulation of the said act, or overcome its perspective. The market was demarcated to be the high-
deficiencies. end residential apartments in the city of Gurgaon, which
en
constrained the geographical territory of the application
In the predicament that was identified first, the to a mere suburb, and also restricted the product
ud
enterprises that came together and precluded other scope. 21 Such cases are an example of how, in the
firms from entering a level playing field, wherein fair pursuit of defining a ‘relevant market’, to, in turn,
pr
prices, rational and non-discriminatory consumer determine the ‘market share’, which is the only
preference, and geographical independence of operation determinant of a firm’s dominant position, as per the
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were the chief characteristics of the market, as should be Competition Laws in India, has excessively restricted the
of all ideal and rational markets, the courts held that outlook of the commission, as it discounts several other
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since the enterprises did not form a commonality with key factors, that should have been taken into account,
respect to their management and control or equity, they such as their pricing policies, consumer preferences,
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could not be said to have exercised collective trade barriers and regulations with respect to the entry
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dominance. It gave an unfair advantage to powerful and exit from the market, nature of the firms and the
alliances formed that aimed at maximizing their profits market, exclusion of in-house production, domestic
by way of coming together to drive their rivals out of procurement strategies, local specific requirements, etc.
L
the market. And since no single enterprise, if viewed in
of
isolation, could be said to hold a dominant position in It is astonishing that none of such factors are taken into
the market, no action is taken against any of them. account while determining the dominance of a firm.
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Nonetheless, the propounded solution, is an Therefore, the amendment here, should prescribe a test,
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amendment by which the statute shall take into account, which enlists certain criteria that must be fulfilled in
the principle of “collective dominance”, which identifies order to determine if an enterprise is indeed dominant
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the coming together of multiple enterprises and their in the market concerned. Such a test must have multiple
exercise of anti-competitive practices thereupon. factors that should be fulfilled in order to deem a firm
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dominant, and should not rely solely on the basis of a

This principle has been applied in the European Union single criteria. Such a test must also provide for a liberal
na
Laws, and the competition law of United States, and has outlook, and must prohibit excessive restriction of the
succeeded in its implementation, and impartation of purview of the law.
io
justice, which can be observed from several cases that

nt
have been cited in the paper. In the interest of our legal Aforementioned are the ways in which this statute can
system, and in the interest of our economy, it is be amended, so as to improve the economic health of
er
extremely essential for us to ament the laws, and adopt our nation, by increasing the overall competitiveness,
nt
the policies that have been implemented in foreign and preventing a few firms from exercising a negative
nations, and have been tried and tested, and proven to influence over the market, as it is detrimental to its
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be effective in application. Thus, an amendment to the contemporaries and the consumers reliant on the
definition of the term “group”, laid down in Section 5, market. Such amendments must be made as soon as
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should be made, so as to include in its purview, a group possible to curb any further injustice, in the quest of the
of autonomous and distinct enterprises or corporate
21DLF Limited in Belaire Owner’s Association v. DLF

Limited, 19 CCI (2010).
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75
largest democracy in the world to also become the

largest economy in the world.
CONCLUSION
The paper ascribed the history of the competition laws
in India, and the journey of the MRTP Act and its
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eventual reformation and conversion into the
Competition Act, 2002. It also evaluated the merits and
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demerits of the acts, taking into account several case
laws from India as well as foreign countries. It analyzed
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the impact of the application of these laws in the status
quo, and identified the flaws and shortcomings thereof.
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In turn, it also suggested amendments to enhance the
statute, so as to facilitate a healthy competitive spirit in
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the market, and imbibe faith in the enterprises and the
consumers.
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The laws in every country evolve and reshape
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themselves to suit the need of the hour better.
Observing laws that have been successful in their
application in other nations, and amending the Indian
statutes accordingly, is an ingenious way to revitalize our
economy and our legal system. Therefore, the fallacies
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identified may be dealt with, in the manner prescribed
by this paper, and in ways that the honorable jurists of
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the nation may deem fit.

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76
CHANGING DEFINITION OF PRIVATE PROPERTY:

INHERITANCE OF DIGITAL ASSETS
NATANSH JAIN
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The term ‘property’ has been defined by different economic value. Such digital assets may also be of
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authors but still lacks an absolute and clear definition. sentimental value. For instance, millions of photos exist
The most conclusive definition of property seems to be on Facebook, WhatsApp etc. which might be extremely
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“property is a right or set of rights for exclusive use, enjoyment and valuable to the deceased.
disposal”.1 Exclusion is the “life essence” of property. It
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is their exclusiveness that distinguishes those rights The laws of succession were enacted to facilitate the
which are property from those which are not. transmission of an individual’s property after his death.
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The relationship between digital assets and their
However, with the advancement in science and inheritance is complicated as the social media’s status as
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technology, the concept of property has also widened to property remains uncertain. 4 Furthermore, it is more
a great extent. We live in a society in which more and unacceptable as property if it does not have a monetary
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more information of a person is stored in digital value. This view is wholly wrong as these online assets
formats. The property of an individual in the holding very sentimental value for the dependents of the
contemporary society is not limited to just land or cattle.
It extends to a number of other things such as “e- mail
accounts, social media accounts, blogs, access to bank/financial
L aw
deceased can be analogized to a picture frame or a box
full of trophies and mementos, all of which definitely fall
within the boundaries of the personal property of an
of
service/insurance accounts (including Demat accounts relating to individual. Notwithstanding whether they hold any
securities, mutual funds accounts etc.), intellectual property rights economic value, these are considered as personal
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pertaining to writings, photographs, images, ideas audio/video property. It thus follows that their digital counterpart
clips etc. Stored in external storage places including accounts on the should be considered the same.
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Cloud, such as Google Drive or Dropbox”. 2 These are

The importance of these non- economic digital assets
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together referred to as digital assets. Digital assets are

defined as widely and not exclusively to include a variety can be best explained using an incident which took place
in 2005 in Oregon. After the sudden death of her son,
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of intangible information goods associated with the

digital or online world. Karen Williams found comfort in his old pictures and
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memories stored on his Facebook page.5 She wanted to

When a person dies, he leaves behind these digital assets seek full access to her son’s accounts and therefore
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along with other physical assets. Most of the people are directly approached the company. Facebook refused to
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unaware of their digital assets and do not plan for their grant such an access and therefore the case went to the
succession after their death. The disputes over digital Court. She ultimately won the case but was granted only
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assets of a deceased can be divided as pertaining either ten months of access before the account was
to their economic value or related to their non- permanently deleted by the company. The case was
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economic value. 3 For instance, domain names are decided merely on the basis of justice, equity and good
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valuable economic assets which are crucial to the conscience as there was no law regulating such an
profitability of a business. Pictures, text and blogs of a inheritance of property.6
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celebrity’s social life are also considered to be of
1 Bowen, supra note 3, at 43. 4 Rachael Ferrante, The Relationship Between Digital Assets And
2 Rajesh Vellakat, Need for Law on Disposition of Digital Assets of Their Transference At Death, 39 (2014).
a Deceased, 1 (2015). 5 Id.
3 Lilian Edwards, Protecting Post Mortem Privacy, 32(83), 6 Id, at 39.
CARDOZO ARTS AND ENTERTAINMENT, 88 (2013).
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77
Service providers such as Facebook, Google, LinkedIn more complex issue is the protection of privacy interests
and Twitter have formulated their own policies with after the death of a person. The Indian Supreme Court
regards to the right to access a deceased person’s profile. has firmly established that Right of Privacy is a part of
For instance, Google provide a feature called “Inactive Article 21 of the Indian Constitution. 10 The counter
Account Manager” which allows the users to specify argument to the disposition of digital assets of a
how the user wants his/her account to be treated after deceased runs in the terms of privacy of the deceased. It
his/her death. 7 Similarly, Facebook provides a similar is based on the conception that the deceased would have
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feature called “Memorialised Accounts”. After the death had already shared whatever he/she had wanted to
of the user, it gives an option to the friends of the share. It is therefore argued that “whatever is stored otherwise
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deceased to make his/her account as “Memorialised”. It must remain private and buried along with the person irrespective
makes the content of the deceased to stay visible to the of its economic or sentimental value”.11
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audience. However, this feature still fails to provide
solution for a number of possible uncertainties such as As a counter, the argument is made that succession
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who should decide the fate of the deceased’s account, principles should be followed to empower the individual
account holder to take testamentary privacy decisions
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for how long the account should be memorialized. This
feature also denies the family members access to the about the posthumous treatment of his/her digital
accounts. If the individual makes it clear that his/her
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deceased’s account and therefore no closer to a
resolution. digital assets should be destroyed after death, the law
should honour his/her clear intent. Further, the privacy
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Twitter allows an authorised individual or family of a deceased is not safe even if his/her heirs do not get
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member to deactivate the deceased’s account or else the access to the deceased’s online accounts. For
remove videos, images and posts of the deceased after example, the Terms of Service Agreement (TOSA) of
death. However, most of the people are even unaware Skype (an online platform for video calling) does not
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about any such policy provided. 8 Similarly Yahoo’s provide users an option to delete their respective
of
terms of service include a “No right of Survivorship and accounts. It is also not clear from the terms of the
Non- Transferability” clause which says: TOSA what Skype does with the stored personal
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information of the deceased.12

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“You agree that your Yahoo account is non- transferable and any
rights to your Yahoo ID or contents within your account terminate There is one more counter argument against the
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upon your death. Upon receipt of a copy of a death certificate, your inheritance of digital assets. It is that what is required is
account may be terminated and all contents therein permanently the need to encourage people about digital estate
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deleted.”9 planning. According to it, every person should be

encouraged to create an inventory of their digital assets
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However, most of us do not even read such terms and and to store them all at one safe place. There are many
condition while doing the registration. Furthermore, online services such as Legacy Locker and Secure Safe
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these policies destroy the inheritance of such digital which provided such online storage platforms. Further,
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properties. As a consequence of these terms, valuable a trustee needs to be appointed who will be entrusted to
digital assets might end up being destroyed. the access to these lockers. This person may be a spouse,
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a friend or a family member who will dispose these

There is one more aspect associated with the inheritance
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assets in a way one wants after death. This again has

of such digital assets which is related to the privacy of many security and privacy concerns associated with it.
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the deceased. The right to privacy of a living person is First and foremost is to find such a suitable person who
one of the most disputed rights in our country. The
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7 Laura McCarthy, Digital Assets And Intestacy, 21(2), 10Govind v. State of Maharashtra, AIR 1975 SC 1378.
UNIVERSAL TECHNOLOGY LAW REVIEW, 398 (2015). 11Vellakat, supra note 29, at 4.
8 Id. 12McCarthy, supra note 34, at 390.
9 Natalime Banta, Death And Privacy In The Digital Age, 94(12),
Norwegian Cruise Lines Review, 949 (2016).
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one can trust not just while living but also after one’s
death. Also, storing all the assets at one place has a huge
threat of it being hacked and put to wrong use by
someone else.
There is no law in place in our country to deal with the

disposition of such digital assets of an individual. None
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of the present inheritance/succession laws specifically
provide for these new forms of property. In the other
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countries, especially in the U.S.A., enactments have been
made to regulated disposition of digital assets. The most
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notable one is that of one of the states in U.S.A. called
Delaware.13 The Delaware law primarily states that “a
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fiduciary with authority over digital assets shall have the same
access as the account holder and is deemed to be an authorised user
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of the accounts within all applicable State and Central laws”. In
2010, the Oklahoma legislature passed the first of its
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kind bill to deal with the disposition of social
networking accounts. The act states that:
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“The executor or administrator of an estate shall have the
power, where otherwise authorized, to take control of, conduct,
continue, or terminate any accounts of a deceased person on any
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social networking website, any micro-blogging or short message
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service website or any e-mail service websites.”14
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It is thus difficult to suggest how the law for access or

disposition of the digital assets of a deceased should be
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formulated. Nonetheless, what is required is that there

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should be a law in place to deal with the issue of

disposition of digital assets.
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13 Ferrante, supra note 31, at 41. 14 Id.
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79
CONSEQUENCES OF HIV/AIDS: A LEGAL PERSPECTIVE

SIRAPARAPU SREENIVASA RAO
INTRODUCTION security and destabilizing traditional support systems. By

eroding the knowledge base of society and weakening
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The multi-dimensional nature of vulnerabilities that production sectors, it destroys social capital. By
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result from HIV and AIDS are at first glance difficult to inhibiting public and private sector development and
comprehend and measure. At the global level, research cutting across all sectors of society, it weakens national
ud
is increasingly focusing on the relationship between institutions. By eventually impairing economic growth,
HIV and AIDS and other socio-economic issues the epidemic has an impact on investment, trade and
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national security, leading to still more widespread and
Globally, the adverse socio-economic impact of HIV extreme poverty. In short, AIDS has become a major
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and AIDS is visible at the household, sectoral, and at the challenge for human security.
macro level. Given the low overall HIV prevalence in
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India, there has not been any significant effort to study DEMOGRAPHIC IMPACTS
the impact comprehensively. Focus so far has been on
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studying the impact at the level of the individual and the AIDS deaths are premature deaths. In countries where
HIV spreads mainly through unsafe sex between men
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households. The problem of HIV and AIDS has deep
social and economic roots and hence its impact reaches and women, the majority of infected people acquire
far beyond the health sector with severe socioeconomic HIV in their twenties or thirties and will die of AIDS on
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consequences. A number of direct and indirect costs to average a decade later. In a number of countries, AIDS
of
the individuals as well as to the national health system has resulted in increased mortality among children
can emerge as a result of HIV and AIDS. under five, and is now wiping out half a century of
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development gains, including increases in life

AIDS, while continuing to be an important health issue, expectancy at birth, particularly in southern Africa,
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has evolved into a complex social and economic where life expectancy increased from 44 years in the
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emergency. HIV primarily affects young adults, cutting early 1950s to 59 in the early 1990s. Between 2005 and
a broad path through society's most productive layer 2010, it is expected to fall to 45 years and even lower in
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and destroying a generation of parents, whose death some countries.

leaves behind orphans, de socialized youth and child-
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headed households. AIDS has a significant impact on The lifetime risk of dying of AIDS is far higher than the
the more educated and skilled segments of society general prevalence rate would suggest. For example,
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because HIV primarily infects productive young adults where prevalence is 15 per cent and rates continue to
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rather than children or the elderly. The stigma attached apply through their lifetime, over half of today's 15-year
to HIV and AIDS adds to the impediments encountered olds will die. In Botswana, which has a prevalence rate
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in mounting a response to AIDS, in addition to the of 36 per cent, over three quarters would die of AIDS.
In some countries, these trends are reshaping the
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discrimination already faced by infected individuals.

HIV also increases social and economic vulnerability traditional population pyramid into a new population
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among women1. chimney," with a narrowing base of young people and

children. The most dramatic change in the pyramid
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In the hardest-hit regions, AIDS is now reversing occurs when young adults, infected early, begin to die of
decades of development. It changes family composition AIDS. Only those adults who escape HIV infection can
and the way communities operate, affecting food expect to survive to middle and old age. Also, recent
1Socio-Economic Impacts of HIV/AIDS From UNAIDS,

The Body, The Complete HIV/AIDS Resource
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80
studies among various African populations indicate that 3. Suppression of Immoral Traffic (prevention) act of
rates of HIV infection in young women aged 15 to 19 1956 exists for penalizing work doers. However,
may be five to six times higher than in young men. this act has never been properly enforced due to the
poverty of the sex workers.
SOCIAL IMPACTS 4. Legal suggestions have been made regarding license
system for the commercial sex workers. This license
The premature death of large numbers of young adults can be renewed according to the health of the
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has an inevitable impact on those societies most affected particular person.
by AIDS. 5. Article 38 of the constitution requires the state to
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the direct the policy for improving livelihood of all
Households and Families the citizens. Article 47 further stresses on the
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government duty of health care. Alternate jobs
Households and families bear the brunt of the misery could be provided to the commercial sex-workers.
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caused by AIDS. Those who fall ill become unable to The patients surely deserve financial and help.
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work, forcing family members to care for them rather
than producing food or income. According to studies of Education
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rural families in Thailand and urban families in Côte
d'Ivoire, farm output and income fell between 52 and 67 Where AIDS is widespread, education -- an essential
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per cent in families affected by AIDS. Families are also building block of development -- is being impaired. The
subject to discrimination if they have members who are epidemic is eroding the supply of teachers and diluting
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HIV-positive, often facing reduced access to publicly the quality of education. AIDS also reduces the amount
available social and economic benefits. L of money available for school fees, and forces an
increasing number of children -- more girls than boys --
Gender to drop out of school in order to help at home. As
of
teachers become ill and unable to work, some schools

The gender dynamics of the epidemic are far-reaching are closing. In parts of Southern Africa, one fifth of
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due to women's weaker ability to negotiate safe sex and teachers and secondary school students are estimated to
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their generally lower social and economic status. More be HIV-positive.

women than men are caretakers of people with AIDS,
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which may saddle them with the triple burden of caring Health Services
for children, the elderly and people living with AIDS --
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as well as financial responsibility for their family's Since the beginning of the epidemic, 21.8 million people
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survival. Girl children or older women may find have fallen sick and died of AIDS, placing ever-
themselves at the head of households, and many girls increasing demands on health services in the worst-
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from families facing poverty risk exploitation, especially affected countries. Often, this increased demand
sexual exploitation, when trying to bring in additional stretches already over-burdened public health systems.
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income. Mother-to-child transmission is also a concern. In 1997, public health spending on AIDS alone
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exceeded 2 per cent of gross domestic product (GDP)

LEGAL HELP FOR WOMEN in seven of 16 African countries sampled, a staggering
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amount for countries whose health expenditure for all

1. In 1989, AID prevention bill was introduced in the
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diseases accounts for 3 to 5 per cent of GDP. Adding to

Parliament this had 12 clauses and preamble. It was
these increased demands is the crushing burden of
the first to define the prevention and spread of
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AIDS on health workers themselves. A study in Zambia

AIDs.
showed that in one hospital, deaths among health-care
2. At present article 15(3), article 23 of fundamental
workers increased by a factor of 13 over a decade, largely
right say that state will make special provision for
because of HIV. Overburdened public health systems
women & children.
may also further marginalize minority, disabled and
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elderly women with HIV/AIDS. HIV-positive people orphans to families affected by HIV. To date, the
also lack access to medicines and to health care, often epidemic has left behind 13.2 million orphans, children
facing discrimination from hospital staff or health-care who before the age of 15 have lost either their mother
systems. or both parents to AIDS. Studies have shown that
children orphaned by AIDS are at greater risk of
The features of the HIV/AIDS epidemic and the many malnutrition, illness, abuse and sexual exploitation than
legal and law-related issues it presents to the courts and children orphaned by other causes. The stigma and
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to the legal system of every country. Issues such as discrimination they face can also deprive them of basic
consent for testing; counselling of those at risk and social services and education. Today, in many African
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those who are infected with HIV; issues of countries 20 to 25 per cent of all households are
confidentiality and discrimination; the special problems fostering orphans. The long-term consequences of such
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of vulnerable groups, some of them subject to shifts in socialization are incalculable.
discrimination which is reinforced by the law; issues of
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the safety of the blood supply and of the work Human Development Index
environment. In the Bombay High Court where an
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interim order was issued
The Human Development Index (HDI), a generally
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suppressing the information of the identity of a person accepted measure of development based on economic
infected with HIV. Both were allowed to sue by and social indicators, is also affected by AIDS. In
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pseudonyms (Mr. M X and Ms. Z Y). The applicants Namibia, for example, the HDI is predicted to fall 10
challenged a public corporation’s dismissal of Mr. M X per cent by 2006 and in South Africa by 15 per cent
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because he had tested HIV positive. The corporation’s before 2010 because of AIDS.
policy permitted discrimination on that basis. Mr. M X
ECONOMIC IMPACTS
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had been a casual laborer for a public sector
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corporation. He was cleared for promotion, subject to
a medical. The medical examination declared him to be Economic Growth
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fit. He was then required to undergo a further

examination for permanency. He was again found to be Growing evidence suggests that AIDS is having a
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physically fit. But the HIV test revealed that he was devastating effect on economic growth and incomes.
sero-positive. The corporation sought to justify its According to the World Bank, had average national HIV
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discriminatory policy, although it is hard to see how, prevalence in sub-Saharan Africa not reached 8.6 per
cent in 1999, per capita income on that continent would
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before any onset of disability, such a policy could be

justified especially in the case of a laborer. Mr. M X have grown 1.1 per cent, nearly three times the actual
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challenged the policy as contrary to law and a violation growth rate of 0.4 per cent achieved during 1990-1997.
of the non-discriminatory clauses (ss 14, 15 and 16 of In the case of a typical sub-Saharan African country with
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the Constitution of India). The Bombay High Court a prevalence rate of 20 per cent, overall GDP growth
would be 2.6 per cent lower each year. At the end of 20
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showed considerable sensitivity in its name suppression

order. Some people, denied confidentiality, would years, the economy would be two thirds smaller than it
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simply abandon their rights at law or never come to would otherwise have been3.
court2
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Workers
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Orphans
AIDS reduces the number of healthy workers, especially
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AIDS has a dramatic impact on children, particularly experienced workers in their most productive years.
through the emergence of an entire generation of This raises dependency, diminishes human capital, and
2A Grover, “Names Suppressed in Indian Discrimination

Case”, (1995) 6 HIV/AIDS Legal Link, No. 3, 26.
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may cut productivity growth by as much as 50 per cent ill, productivity drops off dramatically. Patterns of
in the hardest hit countries. cropping shift from cash crops to subsistence farming,
reducing household income and forcing the family to
Public Sector sell such assets as equipment or cattle to get by. Children
may be withdrawn from school to help with work or
In the public sector, AIDS reduces government tend to the sick, impairing their own development. In
revenues and puts severe strain on budgets as spending some areas, women dominate agricultural labor- up to
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on health and social welfare mount. Scarce capacity is 80 per cent- and this requires a gender-sensitive
depleted, and the return on other public investments response to HIV/AIDS.
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falls.
IMPACT ON SECURITY
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Governance
The reverse in economic growth and development gains
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Governance suffers as a result of the epidemic: being experienced in some countries affected by AIDS
is magnified by the fragility and complexity of
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HIV/AIDS has a disastrous impact on the capacity of
Governments, especially on the delivery of basic social geopolitical systems. The epidemic is present in a
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services. Human resources are lost, public revenues number of countries already facing conflict, food
reduced and budgets diverted towards coping with the scarcity and poverty, and poses real threats to social and
political stability where it is most concentrated -- in
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epidemic's impact. Similarly, the organizational survival
of civil society institutions is under threat, with a Africa. The Security Council redefined security as an
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corresponding impact on democracy.3 issue going well beyond the presence or absence of
L armed conflict, one which affects health and social
Private Sector services, family composition and social structure,
economies and food security.
of
In the private sector, firms face higher costs in training,
insurance, benefits, absenteeism, medical costs, sick There is now broad acknowledgement that AIDS has
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leave, funerals and pensions. At the same time, the become a global development crisis, potentially
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average experience of their labor force falls, reducing affecting national security in some countries. Armed
accumulated knowledge within firms. The most conflict and associated population movements provide
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seriously affected businesses are those that are labor- fertile ground for the spread of AIDS, while the
intensive, such as transport. Companies in Africa have epidemic itself can be seen as a risk factor in the
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already felt the impact of AIDS on their bottom line. breakdown of social cohesion and in social and political
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One sugar estate in Kenya quantified the cost of HIV instability, in addition to a threat to security forces
infection as 8,000 days of labor lost to illness in two
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years, a 50 per cent drop in processed sugar recovered In India, the impact of HIV and AIDS is not very visible
from raw cane in four years, and a tenfold increase in due to the low prevalence rate and large population size.
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health costs. The company estimated that more than The latest official government estimate is 3.5 million at
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three quarters of all illness was related to HIV infection. the end of 1998 4 . These estimates are based on a
statistical analyses starting from the number of cases
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Agriculture reported by participating hospitals. The general pattern

is that these are underestimates because many of the
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AIDS also threatens the basic livelihood of people living afflicted don't seek help as they are too poor or too
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in developing countries, especially the poor. In many marginalized. As a result, the true numbers may be as
countries, agriculture provides a living for as much as 80 high as 10 million. What is even more scary is that the
per cent of the population. As adults in rural areas fall rate of increase is very high: it could be as large as 1-2
3 NACO Web page http://www.naco.nic.in/naco/ 4 Ibid.
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million per year already with the total number of Because of the many social, economic, medical, and
infected doubling every. political ramifications, stopping the spread of
HIV/AIDS should be considered a national priority.
2-3 years. Thus, if unchecked, there could be 100 million The situation in a way constitutes a national emergency
people that are HIV+ by the year 2010. A second as it has the potential to create social, economic,
tragedy is that due to poor health conditions in India, medical, and political chaos throughout the nation,
the mean life after infection is likely to be only 4-5 years. including the possibility of a collapse.
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Soon the hospitals all over India will soon start to see
large numbers of patients daily. This very disturbing and Although it is true that the human race is very resilient.
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dangerous situation has already been reached in the People will survive, just as Germany and Japan survived
states where the pandemic is more advanced -- World War II. However, the cost was very high. They
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Maharashtra, Karnataka, Tamil Naidu, Andhra Pradesh, had to restart from scratch, and the survivors paid a very
Manipur, and Mizoram. When asked, any doctor from high price in terms of losing loved ones, watching their
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Bombay, Bangalore, Chennai or Hyderabad will tell you property and assets destroyed. Germany got divided and
of the increasing numbers of infected people, both rural it took 50 years to recover. The misery of HIV will be
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and urban, coming in every day. greater as people watch their loved ones die slowly over
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years and then leave behind children as orphans and
The third problem is that in most cases the patients are elders without any means of support. Enduring such
seeking medical help at very late stages of the infection
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misery is certainly not the way to move ahead, especially
when they are already debilitated by a serious since the well-being of society itself is at risk.
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opportunistic infection (AIDS). At this stage they need
hospitalization, and over the 10-15 days in which their L The second issue is medical. HIV/AIDS is the first fatal
HIV status is ascertained and the family comes to grips sexually transmitted disease in recent times. Historically,
with the situation, their hospital bills have zoomed to at society has a very poor track record in overcoming and
of
least Rs. 50,000 - 100,000. This sum is significantly eliminating sexually transmitted diseases. Even the
greater that the family's savings and assets. At this point developed nations are struggling to eliminate gonorrhea,
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they have no option but to take the patient home to die. herpes, chlamydia, etc., since sex is a closeted subject. In
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In addition, the family is left in debt which they have no spite of the fact that HIV is not easy to transmit
way of paying back (money lenders are routinely (syphilis, gonorrhea, hepatitis, etc., are 10-100 times
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charging 20% interest per month). Solutions are gut- more virulent), nevertheless, we are witnessing an
wrenching -- for example selling off the young children explosive spread of HIV worldwide. In addition, HIV
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for sex work, or for bonded labor. Even if the children by attacking and destroying the immune system is
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escape this gruesome future, they still live a stigmatized allowing the proliferation of many other opportunistic
life. For example, girls have a hard time getting married. diseases that are killers. For example, tuberculosis, and
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In short HIV/AIDS is destroying not just individuals especially multi-drug resistant TB, is being seen in
but entire families. increasing numbers in conjunction with HIV, as are
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certain other rare diseases like toxoplasmosis. With

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Another worrisome trend is the number of people from modern day global mobility, these communicable
the armed services and the police that are showing up. diseases will spread worldwide into the general public.
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Given the "macho" complex that is common in these

communities, the long periods of time they spend away
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CONCLUSION
from families, and the power of exploitation that the
Lastly, the world is far more interconnected and
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police have over the poorer commercial sex workers, a

high rate of infections is not unexpected. However, the interdependent now. The explosion of HIV throughout
fact that the lead group has already advanced to the stage the developing world could create a panic in the global
of AIDS implies that this serious social and political economy leading to global economic and political chaos.
situation is already at our door steps. It is significant to understand the spread of HIV is now
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84
exploding are the countries of the former USSR, India,

Pakistan, and China. Some of these regions have
unstable political systems, contested borders, restless
citizens, strong armies, and nuclear weapons. Thus, HIV
can accelerate and spark a very volatile situation.
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ENFORCEMENT OF FOREIGN ARBITRAL AWARDS: PUBLIC POLICY &

OTHER CONSIDERATIONS
MS. AMBAREEN MUJAWAR
INTRODUCTION aside under section 34 of the Act. Arbitration being a
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speedy alternative dispute resolution mechanism is
Prior to 1937, there existed no law in India for expected to have minimum intervention by courts.
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enforcement of foreign arbitral awards. The Indian However, it should be kept in mind that in the process
Arbitration Act, 1889 and the Code of Civil Procedure of speedy resolution of dispute, justice should not be
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had no provisions in this regard. In the year 1937, India sacrificed. This study attempts to make an analysis into
enacted the Arbitration (Protocol and Convention) Act the much debated doctrine of ‘public policy’ along with
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in order to give effect to the Geneva protocol and certain other relevant factors concerning enforcement
convention. India also enacted Foreign Awards of foreign arbitral awards.
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(Regulation and Enforcement) Act, 1961 to give effect
to the New York Convention, 1958. The 1937 Act did UNDERSTANDING ‘FOREIGN
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not govern the awards made after 11 October, 1960 in AWARDS’
countries which were signatories to the New York
&
Convention, 1958. All other awards of countries not Foreign Awards, under the scheme of Arbitration Act,
1996 can be classified into two kinds:
aw
signatory to New York Convention but to The Geneva
Protocol on Arbitration Clauses were governed by the
1. New York Convention Awards i.e. under section 44
1937 Act. However, with the legislative enactment of
L
of the Act and,
the Act, the Arbitration (Protocol and Convention) Act
2. Geneva Convention Awards i.e. under section 53 of
of
and Foreign Awards (Regulation and Enforcement) Act, the Act.
1961 which used to regulate the foreign awards, were
al
repealed. 1 The provisions of these two repealed

1. Awards under the New York Convention
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enactments were then incorporated in the Part II of the

Act to give effect to the New York and Geneva The scope of the New York Convention is very wide
ou
Convention respectively. and an arbitral award made in any foreign country,

whether in a contracting State or otherwise, is covered
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Foreign awards sought to be enforced in India can be

under the convention. However, any State may, on the
refused enforcement under section 48 and 57 of the
na
basis of reciprocity, declare that it will apply the

1996 Act on various grounds including public policy.
Convention to the recognition and enforcement of
The courts in India have given a wide interpretation and
io
awards made only in the territory of another Contracting

broad application to public policy. The courts in India
State. It may also declare that it will apply the
nt
had at one point of time even held that not only a

Convention only to differences arising out of legal
foreign award can be refused to be enforced, it can be
er
relationships, whether contractual or not, which are

set aside as per section 34 of the Act. This had drawn a
considered as commercial under the national law of the
nt
lot of criticism as such interpretation and application

State making such declaration.2 India has applied these
lead to frequent interference of the courts which caused
eI
delay in the process of dispute resolution. However, the reservations.3

Supreme Court of India in 2012, overruled its previous
Only those foreign awards which address differences
Th
decisions and held that a foreign award cannot be set

between persons arising out of legal relationships,
1Section 85(1) Arbitration and Conciliation Act, 1996. forcement.convention.new.york.1958/doc.html#2, last

2Article 1(3) New York Convention, 1958 available at: visited on 31/08/18.
http://www.jus.uio.no/lm/un.arbitration.recognition.and.en 3 Section 44 Arbitration and Conciliation Act, 1996.
*
86
whether contractual or not, considered as commercial Chapter II of Part II of the 1996 Act has very limited
under the law in force in India and has been made in one application from a practical point of view since most of
of such territories as the Central Government, being the foreign awards are covered by the New York
satisfied that reciprocal provisions have been made, has Convention.9
notified in the Official Gazette as the territories to
which the New York Convention applies, are MEANING OF ‘COMMERCIAL’
enforceable in India.4
Section 44 of the Arbitration and Conciliation Act,
ce
2. Awards under the Geneva Convention 199610 mandates that a foreign award under the New
en
York Convention must be an arbitral award on
Section 53 of the Arbitration and Conciliation Act, 1996 differences arising out of the legal relationships, whether
ud
defines ‘foreign award’ based on Article 1 of the Geneva contractual or not, considered as ‘commercial’ under the
Protocol. The definition of “foreign award” under law in force in India. A similar stipulation in terms of
pr
section 53 differs from the definition of “foreign the dispute to be of a commercial nature has also been
awards” under section 44 of the Act. Section 53 does imposed as prerequisite for enforcement of awards
ris
not begin with non-obstante clause. Section 53 also does under Geneva Convention. 11 While construing the
not contain the words “arising out of legal relationship, expression ‘commercial’ it has to borne in mind that the
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whether contractual or not”. Further, section 53 talks Act is calculated and designed to sub-serve the cause of
about agreement simplicitor, omitting the word “in facilitating international trade and promoting the same
&
writing” whereas, under section 44 an agreement must by providing speedy settlement of disputes arising in
be in writing.5 such trade through arbitration and any expression or
Like New York Convention, a precondition for the

applicability of the Geneva Convention in India is that
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phrase occurring therein should receive, consistent with
its literal and grammatical sense, a liberal construction.12
of
the relationship between the parties must be a In Black's Law Dictionary, 'commercial' is defined as
commercial relationship according to the Indian law. "relates to or is connected with trade and traffic or
al
Awards and differences arising out of relationships commerce in general" and it is stated that "commercial"
considered as non-commercial are not recognized as is generic term for almost all aspects of buying and
rn
foreign awards under the law of India.6 selling. 13

ou
Under this chapter, a foreign award to be enforceable in The term ‘commercial’ was first discussed by the Supreme
India has to be from a reciprocating country as notified Court in the case of R.M. Investment & Trading Co. Pvt.
lJ
by the Central Government. The Central government Ltd. v. Boeing Co. 14 wherein it was held that the
na
had previously issued notifications under section 2(c) of expression ‘commercial’ should be construed broadly
the 1937 Act. Notifications so issued under the 1937 Act having regard to the manifold activities which are
io
are deemed to have been issued under section 53(c) of integral part of international trade today. While
the 1996 Act.7 construing the expression aid can also be taken from
nt
model law prepared by the UNICITRAL wherein

Geneva Convention is not applicable in relation to
er
relationships of a commercial nature include

foreign awards to which Chapter I of Part II of the Act
nt
i.e. awards under New York Convention. 8 Hence,

eI
4 Bansal Ashwinie Kumar, “Arbitration Agreements and 9 Supra Note 4.

Th
Awards”, Ed. 2nd, 2006, Universal Law, New Delhi. 10 Supra Note 3.
5 Myneni S.R. Dr., “Arbitration, Conciliation and Alternative 11 Section 53 Arbitration and Conciliation Act, 1996.
Dispute Resolution Systems”, Ed. 1st, Reprint 2007, Asian 12 Renusagar Power Co. Ltd. V. General Electric Co. Ltd,
Law House, Hyderabad. Air 1985 SC 1156.

6 Supra Note 4. 13 European Grain & Shipping Ltd. v. Bombay Extractions
7 Supra Note 1. Private Ltd. and Ors., AIR 1983 Bom 36.
8 Section 52 Arbitration and Conciliation Act, 1996. 14 AIR 1994 SC 1136.
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87
“commercial representation or agency” and enforces the said award and the same is then deemed to
“consulting”. be a decree of the Court.18
The word 'commerce' through several reported judgments,

is thus a word of a very wide import. Justice Field, Application Opposition to
Enforcement as
Court upon
satisfaction,
for
speaking for the Supreme Court of the United States of Enforcement
per stautory
grounds
deems the award
to be a decree
America, observed that "Commerce is a term of the largest
ce
import. It comprehends intercourse for the purpose of trade in any
and all its forms, including the transportation, purchase, sale and The burden of proof on a party applying for
en
exchange of commodities between the citizens of our country and enforcement, that the award sought to be enforced is a
the citizens or subjects of other countries, and between the citizens genuine 'foreign award' and based on a foreign
ud
of different States..."15 agreement for arbitration, stands discharged as soon as
the said party produces documents as contemplated
pr
However, in Kamani Engineering Corporation Ltd. v. Society under section 47 of the Act. The onus then shifts to the
Defendants Traction Et D'electricite Societe Anonyme 16 , the party resisting the enforcement of the award.19
ris
learned Judge was dealing with the contract with a
collaboration agreement for the sale of the know-how With respect to independent proceedings under section
Ju
or technical assistance and the question was whether 48 of the Act, the Hon’ble Delhi High Court has held
such a contract created legal relationships considered as that the same are unmaintainable, unless the foreign
&
commercial under the law in force in India and the award is sought to be enforced in legal proceedings.20
learned Judge took the view that the contract was of a
aw
professional character and did not involve any business CONDITIONS FOR ENFORCEMENT
or commerce at all. The contract was held to be not a
L Section 48 of the Arbitration and Conciliation Act, 1996
commercial contract because it was more like a retainer
enumerates certain grounds on which a foreign award
of
or contract that is made between a solicitor or a counsel
or an advocate on the one hand and a client on the other. may be refused, at the request of the party against whom
it is invoked. The grounds mentioned in the section are
al
Hence, it can be seen that the word commerce is

interpreted on a case by case basis. exhaustive. Enforcement may be refused only if the
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objector can prove one of the grounds given in sub-

THE ENFORCEMENT MECHANISM section (1) or if the court finds existence of a ground
ou
listed in sub-section (2). As a general rule of

The mechanism to enforce foreign arbitral awards is a interpretation, the grounds under this section for refusal
lJ
three-tier process. The process is initiated when the are to be construed narrowly.21 The Court has no power
na
person in whose favor the award is declared, along with to review the foreign award on merits and to interfere
certain evidence, applies for enforcement. 17 The with the findings of facts.22
io
application is then opposed by the opposite party on the

grounds of challenge as per S.48 or S.53 of the Act, If parties to the agreement were under some incapacity,
nt
whichever is applicable. Finally, the Court upon the award to such agreement cannot be enforced in
India. Under Indian law every person is competent to
er
satisfaction about the enforceability of the award,

contract who is of the age of majority according to the
nt
law to which he is subject, and who is of sound mind,

eI
15 Welton v. Missouri (1875) 91 US 275. 20 Hindustan Petroleum Corporation Ltd. v. Videocon

Th
16 AIR 1965 Bom 114. Industries Ltd., 2012 (3) Arb. LR 194 (Delhi).
17 Section 47 and Section 56 Arbitration and Conciliation 21 Supra Note 4; Shri Lal Mahal v. Progetto Grano Spa,
Act, 1996. (2014) 2 SCC 433.

18 Section 49 and Section 58 Arbitration and Conciliation 22 Eitzen Bulk A/S v. Ashapura Minechem Ltd., 2016 (2)
Act, 1996. Arb. LR 113 (Bombay).

19 Glencore Grain Rotterdam B.V. v. Shivnath Rai
Harinarain (India) Co., 2008 (4) Arb L.R. 497 (Delhi).
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88
and is not disqualified from contracting by any law to The Indian courts have held in various decisions that the
which he is subject.23 following categories of disputes, among other, are not
capable of settlement by arbitration –
A foreign award will not be enforced in India if it is
proved by the party against whom it is sought to be I. disputes leading to an award which is binding on a third
enforced that there was no due compliance with the party or the public at large
rules of fair hearing.24 II. disputes which, under an Act, are required to be settled
ce
by special courts
In the National Thermal25 case it was held that a foreign III. disputes arising from or founded on an agreement which
en
award could not be enforced in India if it is proved by is void on account of its consideration or object being
the party against whom it is sought to be enforced that unlawful
ud
the award has exceeded the scope of the submission to IV. criminal matters involving non-compoundable offences
arbitration. This ground is based on the interpretation V. disputes relating to personal status
pr
of the arbitration agreement. VI. disputes involving public interest or public policy
VII. disputes leading to an award imposing fine or a term of
ris
A foreign award cannot be enforced in India if it is
imprisonment29
proved by the party against whom it is sought to be
Ju
enforced that the composition of the arbitral authority Supreme Court in the National Thermal case has held that
or its procedure was not in accordance with the the award will not be enforced by a court in India if it is
&
agreement of the parties.26 Irregularities of the matters satisfied that the subject matter of the award is not
relating to composition of the arbitral tribunal and capable of settlement by arbitration under the Indian
aw
arbitral procedure not in accordance with the agreement law.30
of the parties are plausible grounds for refusal of L
enforcement of foreign awards. Similarly, the Act of 1996 lays down the conditions for
enforcement of foreign awards under Geneva
of
A foreign award will not be enforced in India if it is Convention. The section also enumerates the conditions
proved by the party against whom it is sought to be of refusal to enforce a foreign award.31
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enforced that the award has not yet become binding on

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the parties or has been set aside or suspended by a THE PUBLIC POLICY DOCTRINE
competent authority of the country in which, or under
ou
the law of which, that award was made.27 As per section 48(2) (b) and 57(1)(e) of the Arbitration
Act, 1996, enforcement of foreign arbitral awards may
lJ
The decision as to what matters should be removed be refused by Indian Courts if the same would be
from the ambit of arbitration is subjective to respective contrary to the public policy of India.
na
legal systems. What is considered so fundamental as to

be non-arbitrable in one country may be viewed as an ‘Public policy’ by its very nature is an ambiguous and
io
amenable to the process private arbitration in another obscure concept. It is impossible to define the contours
nt
country. The permissible limit of arbitrable matters within which this term operates and maybe this is the
consequently varies among countries.28 reason why Burrough observed in the case of Richardson
er
v. Mellish32: “It is never argued at all, but when other

points fail.”
nt
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Th
23 Section 11 Indian Contract Act, 1872. 28 Okezei Chukwumerjie, Choice of Law in International
24 National Thermal Power Corporation v. Singer Company, Commercial Arbitration, 1994, p. 53.
AIR 1993 SC 998. 29 Rao. Chandrasekhara. P, The Arbitration and Conciliation
25 Supra Note 23. Act, 1996 – A Commentary, 1997, p. 46.
26 Id. 30 Supra Note 23.
27 Id. 31 Section 57 Arbitration and Conciliation Act, 1996.
32 (1824) 2 Bing 229.
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89
Public Policy in the light of foreign arbitral awards has was criticised by many to be anti-foreign arbitration
gone through a long and tiring process of evolution in since all laws of a foreign seated arbitration need not be
India. One of the first notable rulings on the subject was in consonance with the municipal laws of India and
of the Supreme Court in Renusagar Power Co. Ltd. v. thus, foreign awards now being open to challenge under
General Electric Co. Ltd.33 (“Renusagar”) when it tried to section 34, will become harder to enforce.
analyze section 34 of the Act. The Court, while laying
down that mere contravention of a provision of law in Ultimately, realizing the impairment already caused by
ce
passing an award cannot be construed to be contrary to the Phulchand judgment and its profound ability to cause
the public policy and the same shall be narrowly further damage, the Supreme Court through its decision
en
construed, ruled that: in Shri Lal Mahal v. Progetto Grano Spa 36 overruled its
decision in Phulchand and ruled that scope of public
ud
“65. ... In this context, it would also be of relevance to mention policy as explained in Renusagar “would apply equally" to
that under Article I(e) of the Geneva Convention Act of 1927, it the defence of public policy under section 48(2)(b) of
pr
is permissible to raise objection to the enforcement of arbitral award the Act. The court then further laid down three
on the ground that the recognition or enforcement of the award is conditions on being contrary to which, the enforcement
ris
contrary to the public policy or to the principles of the law of the of a foreign award would be refused under section 48(2)
country in which it is sought to be relied upon. To the same effect (b):
Ju
is the provision in Section 7(1) of the Protocol & Convention Act
of 1937 which requires that the enforcement of the foreign award 1. fundamental policy of Indian law; or
&
must not be contrary to the public policy or the law of India. Since 2. the interests of India; or
3. justice or morality.
aw
the expression “public policy” covers the eld not covered by the
words “and the law of India” which follow the said expression,
This decision in Shri Lal Mahal case has been most
contravention of law alone will not attract the bar of public policy
L
recently relied upon by Delhi High Court in Daiichi
and something more than contravention of law is required...”.
Sankyo Company Limited v. Malvinder Mohan Singh and
of
Thereafter, the apex court in ONGC v. Saw Pipes 34 Ors.37

al
(“ONGC”) expanded the test of ‘public policy’ as per

The Delhi High Court in the case of Cruz City 1 Mauritius
section 34 to mean an award that violates the statutory
rn
Holdings v. Unitech Limited 38, noted that the expression

provisions of Indian law or terms of the contract. Such
"fundamental public policy of India"39 referred to the
awards were to be construed ‘patently illegal’ and
ou
principles and the legislative policy on which Indian

consequentially in violation of public policy. This in
statutes and laws are founded. The Court further drew a
lJ
actuality allowed the losing party contest all its

distinction between the violation of a provision of a
contentions afresh.
statute from a violation of a national (legislative) policy
na
In the case of Phulchand Exports Ltd. v. O.O.O. Patriot35 and held that the expression "fundamental policy of
(Indian) law" must be interpreted to mean only the
io
(“Phulchand”) it was held that the expression 'Public

Policy of India' as used in section 48(2)(b) of the Act "fundamental and substratal legislative policy" and
nt
had to be given a wider meaning as per the ONGC case not "a provision of any enactment". Similarly, in Xstrata
Coal Marketing Ag v. Dalmia Bharat (Cement) Ltd. 40, the
er
and hence, the award could be set aside if it is patently

illegal. It also held the scope and purport of the Delhi High Court held that non-compliance of statutory
nt
expression under section 34 and 48 of the Act as similar. provisions is insufficient to attract the bar of
‘fundamental policy of Indian Law’.
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The said approach taken by the Hon’ble Supreme Court

Th
33 Supra Note 12. 39 The phrase ‘fundamental policy of Indian law’ mentioned
34 (2003) 5 SCC 705. in Explanation 1 to both Section 48 and Section 57 has been
35 (2011) 10 SCC 300. added by the means of Section 22 and Section 24
36 Supra Note 21. respectively of the Arbitration and Conciliation
37 O.M.P.(EFA) (Comm.) 6/2016. (Amendment) Act, 2015.
38 2017 (3) Arb LR 20 (Delhi). 40 2016 (6) Arb. LR 270 (Delhi).
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90
Similar has been the stand of Bombay High Court in were alleged to be in violation of provisions of Foreign
Louis Dreyfus Commodities Suisse S.A. v. Sakuma Exports Exchange and Management Act, 1999), noted that the
Ltd.41, wherein it was held that while dealing with foreign violation of specific provisions of an enactment is not
awards, the expression “fundamental policy of Indian synonymous with violation of public policy of India. To
Law” must necessarily be construed in the sense of give effect to the spirit of the Amendment Act, in the
doctrine of public policy as applied in the field of private case of Kandla Export,44 the Supreme Court has clarified
international law. that an order of enforcement of a foreign award is not
ce
subject to statutory appeal under the Act.
From the various judicial pronouncements perused
en
above, it is apparent that the Courts in India have, over ANALYSIS AND CONCLUSION
the course of the years, started to take a pro-foreign
ud
arbitration/award approach. The Courts have Distinction between domestic and international public
substantially curtailed the scope of interference on the policy is gaining increasing acceptance in matters of
pr
grounds of public policy in the enforcement of foreign arbitration. According to this distinction what is
arbitral awards and made the enforcement mechanism considered to pertain to public policy in domestic
ris
more conducive. relation does not necessarily pertain to public policy in
international relations. 45 It means that the number of
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ARBITRATION AND CONCILIATION matters considered to fall under public policy in
(AMENDMENT) ACT, 2015 international cases is smaller than that in domestic
&
(“AMENDMENT ACT”) – KEY cases.46 In various court decisions reported under the
CONSIDERATIONS New York Convention, the distinction between
The Amendment Act has now clarified that an award

can be held to be against “public policy” only if:
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domestic and international public policy is made either
expressly or implicitly. In the United States, the Supreme
Court has held that although disputes arising out of
of
(a) the award suffers from fraud or corruption; securities transaction cannot be submitted to arbitration
if the contract is domestic, disputes arising out of such
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(b) conflicts with the fundamental policy or Indian law; transaction are arbitrable if the contract is
international.47 In France, a distinction is made between
rn
or
international public policy (“order public international”)
(c) conflicts with most basic notions of morality and
ou
and the national public policy. Under the new French

justice. Code of Civil Procedure, an international arbitral award
lJ
can be set aside if the recognition or execution is

The Amendment Act has also clarified that while
contrary to international public policy. In doing so it
na
examining whether a foreign award is against public

recognizes the existence of two levels of public policy –
policy, the courts will restrain from reviewing the merits
the national level, which may be concerned with purely
io
of the dispute in question. As a result, the Indian courts

domestic considerations, and the international level,
are now adopting a cautious approach in entertaining
nt
which is less restrictive in its approach. If a workable

the argument of “public policy” while resisting
definition of “international public policy” could be
er
enforcement of foreign awards. Pertinently, in the cases

found, it would be an effective way of preventing an
of NTT Docomo42 and Cruz City43, the Delhi High Court
nt
award in an international arbitration from being set aside

while allowing enforcement of foreign awards (which
for purely “domestic policy considerations”. But in
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41 2015 (6) Arb. LR 172 (Bom). 45 Penn Racquet Sports v. Mayor International Ltd., 2011 (1)
42 NTT Docomo Inc. v. Tata Sons Ltd., 2017 SCC OnLine Arb. LR 244 (Delhi).
Del 807. 46 Supra Note 4, cited as - P. Sanders, “Trade in the field of
43 Cruz City 1 Mauritius Holdings v. Unitech Ltd., 2017 SCC International Commercial Arbitration” recueil des Cours,
OnLine Del 7810. 1975, Vol. II, pp 220-227 and 285-287.
44 Kandla Export Corporation & Anr. v. OCI Corporation & 47 Id., cited as - Fritz Scherk v. Alberto Culver Co., (1974) 41
Anr., 2018 SCC OnLine SC 170. L. Ed. 2d. 270.
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91
absence of such a definition there are bound to be

practices which some states will regard as contrary to
international public interest and other states will not.48
In this sense as discussed above, the Amendment Act is

indeed a step in the right direction. The judiciary is also
doing its bit to uphold the intent of the legislature in the
ce
Amendment Act that potentially foster the faith of the
parties in the enforcement process in India.
en
Notably, there is a positive trend towards easing the
ud
ability of foreign parties to enforce their contractual
rights and allowing disputes to reach a conclusion by
pr
positive enforcement of arbitral awards. Needless to say,
recent decisions are encouraging for the international
ris
arbitration community and potentially spiriting for
Indian and foreign investors alike.
Ju
&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
eI
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48Id., cited as - Redfern and Hunter, Law and Practice of

International Commercial Arbitration, 2nd Ed., p 445-456.
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92
PRIVACY JURISPRUDENCE & ITS IMPACT ON THE

L.G.B.T.Q. COMMUNITY
PANYA MATHUR
ce
“Change in moral perspective is an art of the changing world and serious offence. However, the first time that privacy
en
must be changed for good.” jurisprudence interlocked with sexual orientation was in
the form of the Wolfendon Committee Report of 1957.
ud
INTRODUCTION
THE HART-DEVLIN DEBATE
pr
LGBT is an initialism that stands for lesbian, gay,
The Wolfendon Committee was created to consider the
bisexual, and transgender. The initialism LGBT is
ris
issues of homosexuality and prostitution. The report of
intended to emphasize a diversity of sexuality and
this Committee concluded that, consensual liaisons
gender identity-based cultures and is sometimes used to
Ju
between consenting adults within the privacy of their
refer to anyone who is non-heterosexual or non-
homes, was not to be legislated upon. The rationale
cisgender instead of exclusively to people who are
&
behind this was that law was meant to maintain public
lesbian, gay, bisexual, or transgender. Lesbian, gay,
order and, not, to intrude into the private life of citizens.
bisexual and transgender people are more likely to
aw
The report did not urge the repeal of anti-gay laws,
experience intolerance, discrimination, harassment, and
merely a policy of non- prosecution in certain cases2.
the threat of violence due to their sexual orientation,
L
This claim made by the Wolfendon Report touched off
than those that identify themselves as heterosexual. This
one of the most remarkable debates in the history of
of
is due to homophobia (the fear or hatred of
English jurisprudence between two scholars, Lord
homosexuality). Some of the factors that may reinforce
Devlin and HLA Hart. The former believed that society
al
homophobia on a larger scale are moral, religious, and

was held together by a common morality and that sin
political beliefs of a dominant group. In some countries,
rn
was synonymous with crime; thus sin ought to be

homosexuality is illegal and punishable by fines,
suppressed with the utility of criminal law. The latter
ou
imprisonment, life imprisonment and even the death

believed that the hypothesis that, society was a seamless
penalty. In India, sexuality has long been a silent
web that left no room for deviation, and, that criminal
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battleground. Each decade has taught us more about the

law was necessary for moral preservation, was absurd.
ways in which it underlies almost every aspect of our
na
Morality implies a basic reference to the distinction of

lives, making the socially enforced silence that envelops
what is right from what is wrong. Various moralities
issues of gender and sexuality seem increasingly more
io
differ as to the extent of what is right and what is wrong,

deafening.1 Homosexuality is not a new concept in India
or good and bad, and therefore, each community, nation
nt
and sexual minorities have always existed in India

or society may have its own morality, according to the
sometimes in forms, which are culturally sanctioned
er
(such as the hijra) and at other times in invisibility and local beliefs, whether social, political, religious or other.
The very expressions "morals" and "morality", though
nt
silence, their issues have never seriously been

articulated. In different religions, different punishments broad in meaning, have too often been understood to
eI
were provided for homosexual offences in India. In have a close connection with sexual morality. Legal and
Manusmrithi, homosexuality is seen as an offence and philosophical writers are not always careful to indicate
Th
lesbianism, by contrast merits more serious punishment. that although the main illustrations of moral problems
Islamic Shariat law treats homosexual conduct as a are generally taken from sexual morality, morality
1 Ghautam Bhan, Sexual Rights and Social Movement in India in Commw. L. Bull. 551 (2008)
EMPOWERMENT IN ACTION (CREA) 1, New Delhi, 2006
2 Michael Kirby, Lessons from the Wolfenden report, 34
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93
remains fundamentally a classification of what is right AN INDIAN PERSPECTIVE

and wrong. Hart and Devlin, in the very essence of their
arguments are more similar than different: for each of Even after half a century, homosexuality still struggles
them reduces the question of the intersection of law and to find recognition, especially in India. The stigma
morality to the problem of survival 3 . Devlin's non- attached to sexual orientation and gender identity or
cognitivism and Hart's empirical truisms alike do not expression that fall outside the expected heterosexual,
touch base with actual legal systems or cultures. While non-transgender norm relegates many LGBT people to
ce
there can be no question but that there is always some the margins of society. This marginalization often
overlap between law and morals in the area of what is excludes LGBT people from many support structures,
en
needed for survival, there exists no concrete legal culture often including their own families, leaving them with
that reduces the issue of enforcement of morality to the little access to services many others take for granted,
ud
overriding good of survival-either individual or such as medical care, justice and legal services, and
collective4. Comparing Hart and Devlin is tantamount education. LGBT communities have an important stake
pr
to opposing two different systems; their approach to in legal injustice issues. Specific groups within the
LGBT community are disproportionately affected by
ris
morality, their purpose and even their vocabulary are
different. The latter is looking for a modus vivendi, seeing violence and discrimination, sometimes at the hands of
law enforcement officials. These people not only
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society as a group that needs organization and rules for
the behavior of its members, whereas the former is experience stigma and discrimination across their life
spans, but are also targets of sexual and physical assault,
&
concerned with the definition of basic principles and the
rationalization of the human activity. Moreover, Hart's harassment and hate crimes. Lesbian, gay, bisexual and
aw
primary concern goes to the individual, whereas Devlin's transgender people are more likely to experience
preoccupation is for society. intolerance, discrimination, harassment, and the threat
of violence due to their sexual orientation, than those
L
Their theories, in the end, are not that far apart; Hart that identify themselves as heterosexual. This is due to
of
deals with the opposition between law and morality, homophobia. Homophobia is generally defined as
while Devlin discusses the interplay of law and morality. hostility towards or fear of gay people, but can also refer
al
The practical application of this debate found to stigma arising from social ideologies about
rn
expression in two landmark decisions i.e., Bowers v. homosexuality. In addition to homophobia, lesbian,
Hardwick (1986) and Lawrence v. Texas (2003). In Bowers v. gay, bisexual and transgender people confront racism
ou
Hardwick the sodomy law of Georgia, USA was upheld and poverty on a daily basis. Discrimination of LGBT
because it was believed that homosexuality was an persons in the workplace is a significant factor in the
lJ
anathema to the country’s tradition. differences in socioeconomic status for LGBT persons.
Discrimination directly causes job instability and high
na
Thus, Lord Devlin’s approach, of merging law and

turnover, resulting in greater unemployment and
majoritarian morality, was followed. It was not
io
poverty rates for gay and transgender people, as well as

until Lawrence v. Texas (2003) that this changed.
the wage gap between gay and straight 5 . Legal
nt
In Lawrence v. Texas the Supreme Court struck down the

Discrimination against the sexuality minorities takes
sodomy law in Texas by holding that super-majoritarian
er
many forms, the most notorious being Section 377 of

moral belief was not a rational substantiation for
the Indian Penal Code (IPC), a British colonial
criminalizing deviant conduct. A majoritarian morality
nt
legislation criminalizing homosexual behavior, that

was therefore prohibited from defining the contours of
continues to be in the Indian statute book although it
eI
criminal law. Thus, eventually Hart’s line of thought

has long since been removed from the British statute
emerged victorious.
Th
book. This section says that, “Whoever voluntarily has

carnal intercourse against the order of nature with any
3 Yves Caron, The Legal Enforcement of Morals and the So-Called Juris. 47, (1990)
Hart-Devlin Controversy, 1969 5 Chatterjee Subhrajit, Problems Faced by LGBT People in the
4 Russell Hittinger, The Hart-Devlin Debate Revisited, 35 Am. J. Mainstream Society: Some Recommendations, (IJIMS), 2014
*
94
man, woman, or animal, shall be punished with populations as they are erroneously seen as the only
imprisonment of either description for a term which ones to perform “carnal intercourse against the order of
may extend to 10 years and also be liable to fine.” The nature”. The expression “sex” as used in Article 15
unnatural offences under IPC are sodomy or bestiality. which deals with prohibition of discrimination on
The parties involved in this offence active and passive grounds of religion, race, caste, sex or place of birth,
both are liable for punishment as per the above section. cannot be read restrictive to “gender” but includes
Therefore, this section clearly shows that sodomy is “sexual orientation” and, thus read, equality on the basis
ce
prohibited in India. Under section 377 of IPC scope of of sexual orientation is implied in the said fundamental
unnatural offences is an ambiguous because there is no right against discrimination 8 . Prohibition against
en
clear distinction between consenting and coercive sex, homosexuality in Section 377 IPC also curtails or
against the order of nature etc. Consent is no defense to infringes the basic freedoms guaranteed under Article 19
ud
an offence under Section 377 IPC and no distinction (1) (a) (b) (c) & (d), which deal with the protection of
regarding age is made in the section6. Section 377 IPC is certain rights regarding freedom of speech, in that, an
pr
based upon traditional Judeo-Christian moral and individual’s ability to make personal statement about
ris
ethical standards, which conceive of sex in purely one’s sexual preferences, right of association/assembly
functional terms, i.e., for the purpose of procreation and right to move freely so as to engage in homosexual
Ju
only. Any non-procreative sexual activity is thus viewed conduct are restricted and curtailed. In 2009, in the Naz
as being “against the order of nature”. The definition Foundation v. Government of NCT of Delhi (Naz) decision,
&
of “unnatural offences” is obsolete. It invites questions the Delhi High Court (DHC) decided to read down
such as what is “the order of nature”. Previously, it was S.377 of the Code so that it would exclude the private
aw
considered that the order of nature was that the sexual consensual intimate relations between consenting
act be performed only for the sake of reproduction. But L adults. An ‘adult’ was defined as anyone who was 18
today it would not be considered “against the order of years and above. The rationale behind this was that
nature” if people have sex mainly for pleasure. S.377 of the Code denied an individual from attaining
of
Moreover, empirical evidence easily shows that full personhood, which was a right that was implicit in
homosexuality (male and female) and bisexuality (male the notion of right to life under Article 21 of the
al
and female) is widespread in the Indian society covering Constitution of India. Unfortunately, this jurisprudential
rn
a large section of people belonging to different regional, progress was short-lived. In 2013, in the appeal against
linguistic, and religious backgrounds and social strata. the DHC Naz decision, i.e., in Suresh Koushal v. Naz
ou
Section 377 denies these people a right to their sexuality. Foundation, (Koushal) the Supreme Court refused to
It does not distinguish between consensual and coercive read down S.377. It was held that S.377 of the Code did
lJ
sex. Thus cases of abuse and voluntary sex between two not suffer from any constitutional infirmity. Amongst
na
consenting adults can be prosecuted under this the many observations and findings, it was held that (1)
provision. This would violate the constitutionally it was for the legislature to amend the law; (2) the
io
protected right to privacy under the expanded definition inaction of Parliament, which was a representative of the
of right to life (Art 21)7. Section 377 IPC thus creates a people, qua deleting this provision, should act as a guide
nt
class of vulnerable people that is continually victimized for the Court and; (3) Lesbians, gays, bisexuals or trans
er
and directly affected by the provision. It is also genders (LGBT) constitute only a ‘miniscule’ fraction
important to note that this section does not prohibit of the Indian population and that less than 200 persons
nt
homosexuality, but only prohibits certain sexual acts, were prosecuted. Thus, the Supreme Court adopted a
which both homosexuals and heterosexuals, married majoritarian and a populist approach. Lord Devlin’s
eI
and unmarried people, might engage in. However, this

Th
section is almost always used to target sexuality minority
8
6 Naz Foundation v. Government of NCT of Delhi and Others, Naz Foundation v. Government of NCT of Delhi and Others,
WP(C)7455/2001 [WP(C)7455/2001]
7
PUCL-K, HUMAN RIGHTS VIOLATIONS AGAINST
SEXUAL MINORITIES IN INDIA (2001).
*
95
approach of intermeshing popular societal morality with the dignity and self-worth of the individual. Equality
law appears to have been adopted. demands that the sexual orientation of each individual
in society must be protected on an even platform. The
In the case, National Legal Services Authority versus Union right to privacy and the protection of sexual orientation
of India 9 , a decision by the Supreme Court which lie at the core of the Fundamental Rights guaranteed by
recognized the right of transgender people. The court Articles 14, 15 and 21 of the Constitution" And the
deals with the aspect of sexual orientation in the case in court then followed it in Paragraph 127: "The view in
ce
many parts though not directly addressing the issue of Koushal (case) that the high court had erroneously relied
Section 377, at Paragraph 20 the Court held, "Sexual upon international precedents 'in its anxiety to protect
en
orientation refers to an individual’s enduring physical, the so-called rights of LGBT persons' is similarly, in our
romantic and/or emotional attraction to another view, unsustainable. The rights of the lesbian, gay,
ud
person. Sexual orientation includes transgender and bisexual and transgender population cannot be
gender-variant people with heavy sexual orientation and construed to be 'so-called rights'. The expression 'so-
pr
their sexual orientation may or may not change during called' seems to suggest the exercise of a liberty in the
or after gender transmission, which also includes
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garb of a right, which is illusory. This is an inappropriate
homosexuals, bisexuals, heterosexuals, asexual etc. construction of the privacy-based claims of the LGBT
Gender identity and sexual orientation, as already
Ju
population. Their rights are not 'so-called' but are real
indicated, are different concepts. Each person’s self- rights founded on sound constitutional doctrine. They
defined sexual orientation and gender identity is integral
&
inhere in the right to life. They dwell in privacy and
to their personality and is one of the most basic aspects dignity. They constitute the essence of liberty and
aw
of self-determination, dignity and freedom and no one freedom. Sexual orientation is an essential component
shall be forced to undergo medical procedures, of identity. Equal protection demands protection of the
including SRS, sterilization or hormonal therapy, as a
L identity of every individual without discrimination." The
requirement for legal recognition of their gender court though stopped short of expressing a final view
of
identity. And further at Paragraph 77 the Court held, on the correctness of Kaushal's case as it was at that time
"We, therefore, conclude that discrimination on the pending for review before another bench of the Court.
al
basis of sexual orientation or gender identity includes The critical thing though is the Right to Privacy case was
rn
any discrimination, exclusion, restriction or preference, a determination by a nine-judge bench of the Supreme
which has the effect of nullifying or transposing equality Court and it has read the sexual orientation into the right
ou
by the law or the equal protection of laws guaranteed to privacy. Further it has said that discrimination on the
under our Constitution, and hence we are inclined to grounds of sexual orientation is a violation of Article 14
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give various directions to safeguard the constitutional and 21 of the Constitution. This would mean, in a purely
rights of the members of the TG community." The
na
academic sense, if Section 377 would have to survive the

second case that needs to be examined is Justice KS test of constitutionality, it would have to be found non-
Puttaswamy (RETD) versus Union of India and Ors10, also
io
discriminatory on the grounds of sexual orientation11.

popularly known as the Right to Privacy case. While this However, the most historical judgement in this aspect is
nt
case did not directly address the rights of LGBT people, the NAVTEJ SINGH JOHAR & ORS. v. UNION OF
it did take a stand on the right to privacy and in doing
er
INDIA12, which came out very recently in which a five-

so touched on the rights of LGBT people and ended up judge Constitution Bench of the Supreme Court on 6
nt
discussing Kaushal's case, and in paragraph 126 the September 2018, decriminalized homosexuality by
Court held that: "Sexual orientation is an essential partially striking down the colonial era provisions of
eI
attribute of privacy. Discrimination against an individual Section 377 of the Indian Penal Code (IPC). The Bench,
on the basis of sexual orientation is deeply offensive to
Th
led by Chief Justice of India (CJI) Dipak Misra and
9 (2014) 5 SCC 438 12 WRIT PETITION (CRIMINAL) NO. 76 OF 2016

10 WP (C) 494/2012
11 Ajay Kumar, Section 377:What two recent judgements tell us about
court’s altered view on sexuality and privacy in India
*
96
comprising Justices Rohinton F. Nariman, A.M. by providing opportunities in social and economic
Khanwilkar, D.Y. Chandrachud and Indu activities and to support employers in making workplace
Malhotra, gave four separate but concurring judgments. and workplace culture more supportive and inclusive of
The Supreme Court reversed its own decision and said LGBT individuals.
Section 377 is irrational and arbitrary. "LGBT
Community has same rights as of any ordinary citizen.
Respect for individual choice is the essence of liberty;
ce
LGBT community possesses equal rights under the
constitution. Criminalizing gay sex is irrational and
en
indefensible," said Chief Justice Dipak Misra, who
headed the five judge bench hearing the case. The
ud
Supreme Court also said that the court "cannot wait for
a majoritarian government" to decide on enacting,
pr
amending or striking down a law if it violates
ris
fundamental rights.
Ju
CONCLUSION
It is clear that LGBT individuals in India, who basically
&
have different sexual orientation, face discrimination,
aw
exclusion from the society, thus quite often, meet with
obstacles to satisfy their needs. This exclusion and
ostracism could vary from the simplest personal
L
relations to the most general social ignorance; exclusion,
of
ostracism, working simultaneously together, and can
even violate the rights of life. Protection of the LGBT
al
community from violence and discrimination does not

rn
require the creation of a new set of LGBT -specific

rights, nor does it require the establishment of new
ou
international human rights standards but what it does

require is change in the existing laws which not only
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prohibit individuals from practicing their sexual

orientation but also punish them for doing so, namely
na
Section 377 of the India Penal Code. However, in the

recent judgement, Section 377 has not only been
io
rendered unconstitutional but has also been set aside.

nt
And this has not only brought justice to the LGBTQ

community but has also each Individual of the country,
er
irrespective of sex, sexual orientation or gender identity,

nt
will now be entitled to enjoy the right to life, security of

person and privacy, the right to be free from torture,
eI
arbitrary arrest and detention, the right to be free from

discrimination and the right to freedom of expression,
Th
association and peaceful assembly. And thus, the

judiciary has once again, ensured that the rights of this
community are protected and initiatives are taken to
inculcate these individuals into the mainstream society
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97
FORENSIC SCIENCE, CRIMINAL INVESTIGATION & ANCIENT WISDOM

AN OVERVIEW
AMAL DEBNATH
ce
INTRODUCTION classification of method of murder and use of forensic
en
science in various cases in ancient India. But somehow
The application of science and technology to the the knowledge and application of forensic science was
ud
detection and investigation of crime and administration in a dormant position till middle of nineteenth century.
of justice is not new to India. Although our ancestors During nineteenth century many people died due to
pr
did not know forensic science in its present form, consumption of poisonous substances. As a result of
scientific methods in one way or the other seem to have which, in the year 1849, the first Chemical Examiners
ris
been followed in the investigation of crime. Its detailed Laboratory was setup at than Madras presidency under
reference is found in Kautilya’s ‘Arthashastra,’ which the department of Health for the detection of various
Ju
was written about 2300 years ago. Indians studied poisons. In due course of time forensic science has
various patterns of the papillary lines, thousands of years raised its head with the establishment of organizations
&
ago. In British India, the early incidence of custodial and laboratories. After independence, the first Central
death and its certification by medical practitioners, Forensic Science Laboratory was established at Calcutta
issuance of medical certificate and wound certificate,
and medico legal autopsy are documented. The most
outstanding contribution of India to legal medicine
L aw
in the year 1957, in order to moderate the crime
investigation methods. With this gradual development
in the field of forensic science has been remarked.
of
during this period is modern dactylography. It is also
presumed that they knew about the persistency and CHEMICAL EXAMINER’S
al
individuality of fingerprints, which they used as LABORATORIES

signatures. Even Mr. K. M. Kata, a frequent contributor
rn
to ‘Nature’, stated that the Chinese records proved the During the nineteenth century, when the cases of death
due to poisoning pretended a problem to the law
ou
use of fingerprints in an ancient kingdom of southern

India. The Indians knew for long that the handprints, enforcement agencies, a need was felt for isolating,
detecting and estimating various poisons absorbed in
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known as the Tarija’, were inimitable. The use of

fingerprints as signatures by illiterate people in India, the human system. The first Chemical Examiner’s
na
introduced centuries ago, was considered by some Laboratory was, therefore, set up for this purpose at the
people as ceremonial only, till it was scientifically proved then Madras Presidency, under the Department of
io
that identification from fingerprints was reliable. Health, during 1849. Later, similar laboratories were set
up at Calcutta (1853), followed by one each at Agra
nt
The origin of forensic science in India can be traced (1864) and Bombay (1870). These laboratories were
er
back to 4000 to 3000 B.C. Written records of that time equipped to handle toxicological analysis of viscera,
are found which deal with law and medicine problems. biological analysis of stains of blood, semen, etc. and
nt
In Vedic period, various ‘Shastras’ and ‘Smritis’ were chemical analysis of food, drugs, and various excisable
eI
written. These acknowledge us about the existence of materials to provide scientific support to the criminal
forensic science in ancient India. ‘Manu Smriti’ informs justice delivery system within their limited means. These
Th
us about many sex related offences with their laboratories also provided analytical facilities to the
examination and investigation under Indian law. neighboring States and Union Territories.
Chapter VII of ‘Manu Smriti’ informs us about some
directions which were given to judges for application of
forensic psychology while observing the accused.
‘Kautilya’s Arthashastra informs about the existence of
*
98
The view that the inculcation of Virtue is the proper end Confucian ethics incorporates both aretaic notions and
of legislation contrasts markedly with traditional deontological notions, postulating a harmonious unity
Chinese thinking on the subject, which argues that laws of the external rules and internal virtues. The deontic
exist because men are lacking in virtue. Confucianism and aretaic elements are unified by the social roles of
places very little faith on the ability of law or external agents; those roles govern relationships between
pressure to make men moral but rather believes that members of the community. The same agent might
virtue must come from introspection and education. occupy different roles in connection with different
ce
Confucian view on law was frequently contrasted in relationships. For example, a woman might be a mother
discourse and practice with Chinese Legality with regard to the relationship between her and her
en
philosophy. children and simultaneously a disciple with regard to the
relationship between her and her teacher.
ud
We are dealing with three conceptions, corresponding Thus, we can summarize as follows: Li prescribes rules
to the phrase ‘positive law’ and the ancient Chinese attached to roles. Ren is the cardinal virtue of humanity
pr
words Fa and Li. Fa in ancient China refers to the rules and the particular virtue of benevolence.
governing imposition of punishment; These rules did
ris
not create any legal obligations for the subjects. Li is a Li (Social norms) Role
form of social norm, including propriety, ritual, custom,
Ju
etiquette and both customary and positive law. The Yi (Properly motivated to fulfill the responsibilities and
traditional view of Confucius attitude towards law is duties set by Li)
&
characterized in his injunction to ‘eliminate litigation’.
Ren (Fundamental virtue)
aw
This is possible in a Confucian society.
“Choose a job you love, and you will never have to work a day in
“Life is really simple, but we insist on making it complicated”
your life”
L
CONFUCIAN SOCIETY
of
ENDS OF LAW
Confucius insists on preconditions of a lawless society.
al
Confucian opinions on litigation give us insight into

the ends of law. It is stated in the Analects that “In the
rn
 Each and every member of society would possess

practicing of Li, harmony is to be prized” 16 . This
sufficient virtue
ou
harmony has two aspects:

 The content of Li would have been framed by sage
kings  Harmony of Society
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 Li would be properly observed by the members of  Harmony of Individual.

na
society.
Harmony of Society:
io
Confucius did not believe in the concept of

"democracy", which is itself an Athenian concept The first aspect is the social Coordinative function of Li.
nt
unknown in ancient China, but could be interpreted by We might call this Coordinative harmony. It is
directed at harmony of society, where every person in
er
Confucius' principles recommending against individuals

electing their own political leaders to govern them, or the community has a proper position regulated and
nt
that anyone is capable of self-government. He expressed guided by Li. In an ideal society, the dispute – resolution
fears that the masses lacked the intellect to make function of law is displaced by the law’s action guiding
eI
decisions for themselves, and that, in his view, since not role.
Th
everyone is created equal, not everyone has a right of

Harmony of The Individual:
self-government.115
15Schuman Michael- “Confucius and the World He 16 Confucius (1971:143)

Created”
*
8
confined to the identification of writings on secret During 1917, a Note Forgery Section was set up under
documents. Later, as the application of this branch of the CID, Government of Bengal, to undertake the
science was felt in many other cases, the services of this examination of forged currency notes. The Revenue
office were thrown open to criminal as well as civil court Department also started its own laboratory for
cases. During the Second World War, this organization identification of opium and narcotics, liquor analysis
took up the additional work of secret censorship, and estimation of purity levels of precious metals like
including the detection of invisible writings and training gold, silver, etc. Similarly, Government Mint and
ce
of military personnel in this field of science. Security Printing Departments at Nasik also established
their own laboratories for detecting cases of counterfeit
en
Serologist to the Government of India: and forged currency notes.
ud
When the science of examining human blood developed Ballistics Laboratory:
in India, it became possible to examine blood and
pr
seminal stains in criminal investigations. Realizing the In 1930, an Arms Expert was appointed and a small
importance of Forensic Serology, an institute named as ballistic laboratory was set up under the Calcutta Police
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Serology Department’ was established in Calcutta in to deal with the examination of firearms. As the menace
1910. The head of this institute was designated as of firearms grew, other State CIDs also established small
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Imperial Serologist to the Government of India. Dr. ballistics laboratories to help them in the criminal
Hankin helped in establishing this department. Though investigation.
&
the scientific techniques for serological examination
were at the infancy stage, this institute provided valuable Scientific Sections in the Criminal Investigation
scientific support by analyzing biological materials for
crime investigations. After independence, the
department was renamed as ‘Office of the Serologist
L aw
Department:
During 1936, a Scientific Section was set up under the

CID in Bengal and facilities were created for
of
and Chemical Examiner to the Government of India’.
examination of bullets, cartridge cases, firearms, etc.,
Footprint Section of Criminal Investigation used in committing crime. Few other states also started
al
Department: scientific sections in their CID, where investigations on

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fingerprints, footprints, firearms and questioned

During the year 1915, a Footprint Section was documents were also carried out. Gradually, more and
ou
established under the CID, Government of Bengal, more branches of science were embraced and the
which helped the police authorities to identify criminals laboratories gained maturity over the years.
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through the examination of footprints collected from

the scene of crime. SM Edwardes recorded many State Forensic Science Laboratory, Calcutta:
na
instance in his book ‘Bombay City Police’ showing the

use of the footmarks in police work. ‘On several The first State Forensic Science Laboratory in India was
io
occasions, Indian constables distinguished themselves established in the year 1952 at Calcutta. This laboratory
nt
by acts of bravery and examples of professional acumen. became fully operational in the year 1953. The Medico-
The detection of a burglary in the showroom of an legal Section of the Chemical Examiner’s Laboratory
er
English firm was entirely due to the action of a Hindu was also transferred to this laboratory. During the year
nt
constable, who noticed on a piece of furniture the marks 1955, a small unit of Physics was established in the West
of a foot possessing certain peculiarities, which he Bengal State Forensic Science Laboratory to deal with
eI
remembered having seen before in the foot of an ex- various physical examinations of exhibits encountered
convict.’ in crime investigation. During the year 1957, the Physics
Th
unit developed into a full-fledged Physics Section. In the

Note Forgery Section in Criminal Investigation same year, the Footprint and the Note Forgery Sections
Department: of Criminal Investigation Department were transferred
to this laboratory and in the following year General
Chemistry Section of the Chemical Examiner’s
*
100
Laboratory was also transferred to this laboratory. Thus analytical facilities in the disciplines of Forensic Physics,
the first multidisciplinary forensic science laboratory Forensic Chemistry and Forensic Biology. The Central
came into existence in the country. Forensic Science Laboratory, Chandigarh, was
established, in the year 1933 at Lahore was shifted to
Central Finger Print Bureau: Chandigarh during 1961. Over the years many full-
fledged forensic science laboratories were established in
On the recommendations of the Royal Police
various states.
Commission of 1902-03, the first Central Finger Print
ce
Bureau (CFPB) in India was established in 1905 at Central Forensic Institute, Calcutta:
en
Shimla. It, however, suffered a setback and was
abolished in 1922 as a result of retrenchment proposals With the establishment of CDTS and CFSL, (later on
ud
of the inch ape Committee. The CFPB restarted GEQD also) in the same premises, under the control of
functioning from 1955 in Delhi under the administrative Intelligence Bureau, the whole set up was named as the
pr
control of Intelligence Bureau (IB). The major role Central Forensic Institute (CFI), Calcutta. A post of
envisaged for CFPB was to coordinate the activities of Commandant was created during 1958 to look after the
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State FPBs in tracing/locating inter-state criminals. overall functioning of all these establishments, which
During August 1956, the CFPB was shifted to Calcutta had different roles but with the common larger goal of
Ju
and remained under the administrative control of IB. providing appropriate scientific inputs to the criminal
During September 1973, it was transferred to the investigation process and administration of criminal
&
Central Bureau of Investigation and during July 1986, justice in the country.
the administrative control of the CFPB was transferred
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to the National Crime Records Bureau (NCRB) and was Central Detective Training School at Hyderabad &
again shifted to New Delhi.
L Chandigarh:
Central Detective Training School at Calcutta: The Central Detective Training School, Hyderabad was
of
established in 1964, on the pattern of the CDTS,
Central Detective Training School (CDTS), Calcutta, a Calcutta, followed by another one at Chandigarh, during
al
premier detective training school in India, was 1973. Their main objective was to train the operational
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established during 1956 and was collocated (in the same police personnel in modern scientific techniques of
premises) with the CFPB, Calcutta. The aim of crime investigation, with a view to improve their
ou
establishing such a school was to impart training in professional standard and efficiency.
scientific investigation of crimes like drug abuse,
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terrorism, explosion, crime against women, THE ROLE OF CENTRAL ADVISORY

investigation of road accidents and enforcement of COMMITTEES:
na
traffic laws, etc.

The Union Government, during 1959, appointed two
io
Central Forensic Science Laboratories: committees for the purpose of giving a lead to all the
nt
States in establishing new forensic science laboratories

The first Central Forensic Science Laboratory was and improving the existing ones, and for improving the
er
established at Calcutta during 1957. To begin with, this study and application of Forensic Medicine. These
laboratory was organised into four basic disciplines viz. committees were (i) Central Forensic Science Advisory
nt
Forensic Physics, Forensic Chemistry, Forensic Biology Committee and (ii) Central Medico-legal Advisory
eI
and Forensic Ballistics. For application of nuclear Committee. The Central Medico-legal Advisory
methods of analysis to criminal investigation, the Committee was to advise the Central and the State
Th
Neutron Activation Analysis Unit of CFSL, Calcutta Governments on matters pertaining to medico-legal
was set up in 1970 at the Bhabha Atomic Research procedures and practices. The Central Advisory
Centre, Trombay. During the year 1965, the second Committee on Forensic Science considered the issues
central forensic science laboratory was established at related to the sphere of Forensic Science (excluding
Hyderabad, The CFSL, Hyderabad initially established forensic medicine). The Central Medico-legal Advisory
*
101
Committee was discontinued whereas the Central It was further suggested that, as an initial step in this
Forensic Science Advisory Committee was converted direction, one institute under the Central Government
into Standing Committee on Forensic Science during should be established in Delhi. The Committee
the year 1972, which is functional even today in recommended those two courses viz. Master’s Degree
BPR&D. in Criminology and Master’s Degree in Forensic Science
should be organized in this Institute, besides Diploma
Indian Academy of Forensic Science: courses for in-service personnel. The institute should
ce
also be developed as a center for research in
The Indian Academy of Forensic Sciences (IAFS) was
Criminology and Forensic Science and should act as a
en
established in the year 1960. This academy started a
clearinghouse of up-to-date information in these fields.
biennial scientific journal, which served as a forum for
ud
the exchange of ideas in forensic science with the other Institute of Criminology & Forensic Science at
international bodies. The role of the Academy was also New Delhi:
pr
to hold annual scientific meetings/seminars or assist in
holding seminars in forensic science. In fact, it was at After a series of debates at the Government level, it was
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the instance of this Academy that the Government of decided that initially the Institute of Criminology and
India established the Neutron Activation Analysis Unit Forensic Science should be established only for training
Ju
to cater for the forensic needs in the country. the in-service personnel and for conducting research in
the field of forensic science. It was felt that unless the
&
Teaching of Forensic Science in the Universities: State governments and the consumer organizations
agreed to participate in the scheme, it would not be wise
aw
The question of introducing criminology and forensic
to start courses for granting postgraduate degrees.
science as the courses of study at the university level in
However, the ultimate objective of the Institute was to
India was taken up with the Vice-Chancellors of various
L
develop into a full-fledged academic institution affiliated
universities during 1950, but the progress made in this
of
to a university. With the above aim in view, the Institute
direction was not encouraging. The need for university
of Criminology and Forensic Science (ICFS) was
teaching of criminology and forensic science was also
al
established in Delhi during 1971 with the limited

stressed in various annual meetings of the Central
objectives of imparting training to the in-service
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Advisory Committee on Forensic Science. A deputation

personnel and conducting research in Criminology and
headed by Shri KF Rustamji met the Chairman,
Forensic Science. It was also envisaged that the Institute
ou
University Grants Commission in August 1961 and the

should have two distinct faculties viz. the Faculty of
matter was again taken up by Shri DP Kohli, the then
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Criminology and the Faculty of Forensic Science and

Director and Central Bureau of Investigation in 1967.
both should have a number of eminent teachers and
As a result of these discussions, Dr DS Kothari, the then
na
researchers with adequate background and field

Chairman, University Grants Commission set up a high
experience.
level committee to advise the Commission on the steps
io
to be taken for introduction of Criminology and

CREATION OF FORENSIC SCIENCE
nt
Forensic Sciences in university education. It

DIVISION AT BPR&D
recommended that universities should be encouraged to
er
introduce courses in Criminology at the under-graduate On an invitation from the Government of India, Dr. V.
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level and postgraduate courses in Criminology and K Street, an eminent forensic scientist from the
Forensic Science should be started only in a central Department of Forensic Medicine, University of
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autonomous institution, which should be affiliated to a Edinburgh, UK, visited different Indian forensic science
university. Consequently, three Universities viz.,
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institutions during 1972 and submitted a report to the

University of Sagar, Madras and Patiala started Ministry of Home Affairs, Government of India. He
undergraduate and post-graduate courses in forensic strongly recommended for creation of a post of Chief
science. Forensic Scientist in the Ministry of Home Affairs to
look after its forensic science activities and to pay whole
*
102
time attention for the development of this science in CFSL, Calcutta, during 1998. The implementation of
India. The Standing Committee on Forensic Science, this state-of-the-art technique represents significant
during 1973, also recommended for the creation of a advancements in the forensic biology in the country.
post of Chief Forensic Scientist so that the activities, The DNA Typing Unit at CFSL Calcutta is equipped
which needed scientific inputs at the Union with the most contemporary techniques of DNA typing,
Government level, could be properly coordinated. The namely, Polymerize Chain Reaction (PCR) based
post of Chief Forensic Scientist was finally sanctioned method, HLADQ alpha and polymarker technique, and
ce
during 1983, and the Forensic Science Directorate was Locus Specific Restricted Fragment Length
created in BPR&D. Polymorphism technique. This laboratory, after being
en
functional, has been referred many crime cases
RECOMMENDATIONS OF SCIENTIFIC pertaining to murder, rape, rape and murder, paternity
ud
ADVISORY COMMITTEE TO THE disputes, organ transplant, exchange of babies in
CABINET hospitals etc. DNA Typing facility has further been
pr
upgraded to conduct ‘Short Tandem Repeats Sequence
During 1983, the then Scientific Advisory Committee to
ris
based DNA Typing.
the Cabinet (SAC-C) under the overall guidance of an
Expert Committee chaired by Prof. M. M. Sharma, FRS, CONCLUSION
Ju
recommended that the laboratories in Delhi, Calcutta
and Hyderabad must be developed as S & T institutions, Development of the mankind took millions and millions
&
functioning in an autonomous fashion, with complete of years and along with it, forensic science also
modernization of equipment and manpower developed to leap and bounds. With development of
capabilities. In pursuance of these recommendations,
the Government of India declared the forensic science
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institutions, at the central Government level as Science
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forensic science, legal aspects of it also came into
picture, which lead to the development of the subject
Criminal Investigation or Medical Jurisprudence. Our
of
and Technology institutions. religious and mythological literature contains the
detailed description of issues related to law, prosecution
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Based on the observations of the Expert Group of the and investigation & their solutions. Medical
SAC-C, BPR&D evolved a master plan for restructuring Jurisprudence or as it is sometimes called Forensic,
rn
each CFSL of the BPR&D into fifteen scientific Legal, or State Medicine may be defined to be that
divisions. In the first phase, the three Central Forensic
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science which teaches the application of every branch of

Science Laboratories at Calcutta, Hyderabad, and medical knowledge to the purpose of the law; hence its
Chandigarh were restructured into six scientific
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limits are, on the one hand, the requirements of the law,

divisions viz. Biology, Ballistics, Chemistry, Explosive, and on the other, the whole range of investigation. The
na
Physics, and Toxicology. Similarly, the offices of the word ‘Forensic’ is derived from the Latin word forensic,
Government Examiners of Questioned Documents at meaning ‘of the forum’. Many a genius from the pages
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Shimia, Calcutta, and Hyderabad were strengthened in of Ancient Indian history had ever influenced the Rule
nt
terms of manpower. Besides augmentation of staff, all of Law. Their word remained an integral part of the
the BPR&D laboratories registered significant progress Government’s functioning, leave alone. The oldest
er
in the acquisition of sophisticated analytical equipment known, Law Code that of Hammurabi, king of Babylon,
and updating/modernizing the laboratory and library
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dating from 2900 BC includes provisions regarding

facilities for smooth working of these institutions. rights and duties of medical practitioner and laid down
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Establishment of DNA Typing Laboratory at CFSL punishment for physician’s negligent fracture. One such
personage happens to be Kautilya, also called as Chankya
Th
Calcutta:
and Vishnugupta, who wrote the Arthashastra”, is the
In response to the rising demands of providing high most comprehensive treatise of statecraft of classical
technology to the crime investigation process, BPR&D times. The book covered numerous topics viz., the king,
established the first Forensic DNA Typing facility at code of law, foreign policy, secret and occult practices
*
103

ANGAD SINGH MAKKAR
ce
“Legal interpretation takes place in a field of pain and death.”1 justification to the judge and others of the key role the
judge plays in the consequential act of physical violence.
en
INTRODUCTION Cover posits that what on first glance may come across
as mere interpretation and offering of one’s
ud
Through this succinct and hard-hitting rhetoric, Cover understanding of the legal word, and the normative
is able to highlight that one aspect of interpretative law- values associated with it, is actually engagement and
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making which is immensely critical and intrinsic to it, yet enforcement of a “violent mechanism through which a
at the same time is often ignored and implicitly
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substantial part of the [intended] audience loses its capacity to
normalized: the direct nexus between the act of legal think and act anonymously”4. Be it due to the overarching
interpretation and the violence that ensues. This is
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practical aspect of this activity, its position in a system
primarily the notion that Robert Cover brings to the fore authorizing hierarchized enforcement of violence or the
and expounds upon in “Violence and the Word”, a
&
law’s inevitable malleability to the “conditions of effective
deconstructionist work which goes beyond the mask of domination”5, legal interpretation can never be restricted
aw
judicial rhetoric, and uncovers the tangible effect and to, nay understood in the narrow sense of grasping the
real impact of judicial decisions. In doing so, Cover meaning and social context of the word of the law.
delves into the fundamental assumptions behind these
L
Instead, one must necessarily view this act of “bonded
acts of legal interpretation, the degree of social interpretation” (bound to the conditions of effective
of
cooperation involved in them and even the arguably domination and to practical application) 6 in lieu of all
innate violence of law to put forth his analysis. This that it entails, i.e. transforming into actual violence and
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paper aims to view, Cover’s insightful work in light of action, overcoming normative inhibitions against
rn
other claims grounded in deconstructionist theory, put violence, and deterring revenge and retribution to this
forth by eminent post-modernists such as Jacques violence by shrouding it in the mist of systematic
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Derrida; and evaluate the veracity of his claims through organization and hierarchized roles.
this lens.
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JURISPRUDENTIAL UNDERPINNINGS
Cover seeks to demonstrate the strong link between
na
epistemic violence and physical violence; a link that is A basic perusal of Cover’s text illustrates the blatantly
paradoxically both unmissable and yet easy to miss. To
io
deconstructionist approach he has adopted, and one

do so, he showcases the actual impact of judicial must then necessarily understand this text in light of the
nt
interpretation by unmasking the layer of justification it theories of post-modernism and, particularly, the
attempts to lend to its implementation of actual
er
jurisprudential school of deconstruction. Tracing the

violence. The obscuring of this nexus between the two roots of post-modernism to the post-World War II era,
nt
aforementioned forms of violence, he argues, would be the notion of post-modernism arose as a response to the
“precisely analogous to ignoring the background screams or visible ordered and manageable grand theories of that epoch,
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instruments of torture in an inquisitor’s interrogation.” 2 He and instead shifted the focus to the “fragmentary and
derides the usage of “broad interpretive categories such a blame
Th
or punishment”3, the meaning of which merely serves as
1 Cover, R. (1986). Violence and the Word. The Yale Law 4ibid p.1615
Journal, 95(8), p.1601 5ibid p.1616
3ibid p.1608
*
12
complex nature of existence”7. Post-modernists, such as the eschews conventional ideologies of power, which view
eminent Jean-Francois Lyotard, disregard the power as merely a commodity that one possesses and
importance placed upon ‘meta-narratives’, which claim through which basic hierarchies of individuals are
validation from a higher, all-encompassing domain of formed. Rather, Foucault proposes an analysis of power
thought, and argue for the “heterogeneity of discourses” and which understands power to be circulated or
“challenge pre-existing methods of legitimation” 8 .They argue functioning in the form of chain, as something that is
that the nature of interactions between an individual and “employed and exercised through a net-like organization” 12 .
ce
society is intrinsically such that it is bound to culminate Essentially, Foucault emphasizes upon an individual’s
in “different effects of social organization which form a fabric or position in the existing social network, and how that
en
network of relations”9; to reduce these varying influences position determines and constitutes him or her as an
and experiences to a few grand theories, or meta- individual with power13.To shun questions pertaining to
ud
narratives, is ergo extremely problematic. Post- the overall strategy behind domination exercised by one
modernism constantly questions the established notions supreme individual or group of individuals, in favor of
pr
of traditional knowledge, and attempts to reconstruct queries regarding certain gestures and certain discourses
ris
what we regard as ‘true’ or ‘real’ 10 . In doing so, it through which individuals are identified and constituted
promotes a culture fueled by a restless inquisitiveness, is what Foucault espouses 14 . Thus, power in a legal
Ju
constantly digging beyond the surface of traditional, and system cannot merely be seen in the traditional form asa
previously unquestioned, theories of knowledge. hierarchy of people authorized and empowered to make
&
Margaret Davies, in her work ‘Asking the LawQuestion’, decisions on the basis of a pre-existing legal order;
expertly elucidates upon the theory of post-modernism instead, it must also take into account the social
aw
by taking up the example of law and the legal system. connotations of this power and the manner in which it
Herein, she showcases the multitude of layers that co- L is circulated at “the level of on-going subjugation”15.
exist within the fundamental idea of a ‘legal system’, be
it the nature of proceedings in the court or the manner Nonetheless, any analysis of Cover’s text must be
of
in which the police operates. To formulate an spearheaded from a deconstructionist perspective,
overarching and all-encompassing picture of the same, which attempts to engage in “detailed and particular
al
which neglects the diverse experiences within each of questioning and the reconstruction of fundamental modes of
rn
these layers, would amount to an “imposition of a dominant thought”16. Though this school of thought is oft criticized
(and falsely external) point of view”11. Thus, in the context of as merely a new rendition of ‘nihilism’, in the sense that
ou
a legal system, post-modernism reworks the traditional it puts forth relativist perspectives and provides no
discourse pertaining to the concept of legitimacy, from transformative value, such a view underestimates the
lJ
one seeking validation through a universal and over- importance of throwing light upon the socio-political
intricacies of concepts we take for granted. The
na
arching narrative (for instance, Kelsen’s Grundnorm or

Austin’s formulation of a sovereign) to one that can be relationships between notions of law, justice and force
io
defined as the culmination of the intricate and layered are prime examples of the aforementioned problem, and
relationships that constitute the law. there is ample room for deconstructionist thought in
nt
this field, as has been highlighted by Jacques Derrida’s

One can even analyze certain aspects of Cover’s text “Force of Law: The ‘Mystical Foundation of
er
from a post-structural Foucaultian perspective, wherein

nt
Michel Foucault expounds upon the social context

within which power must be observed. Foucault
eI
Th
7Davies, M. ed., (1994). Postmodernism and Deconstruction. 12Foucault Lecture Two: 14 January 1976 (Michel Foucault,
In: Asking the Law Question. Law Book Company, pp.325-385. Power/Knowledge (Harvester Press, Brighton, 1980), pp.93-
8Davies p.335 102)
16supra n6 p.376
*
13
Authority’” 17 .Derrida intriguingly propounds that granted, Cover argues that one must still acknowledge
“violence is not exterior to the order of law”18, and through and fathom the various conditions which determine the
such a proposition, he argues that the biggest threat to success or failure of this cooperation25. Even within the
the law and existing legal order already belongs to the realm of legal interpretation conducted purely by judges,
“right to law (au droit au droit)” and “to the origin of Cover points out the numerous social factors that judges
law”19.The source of all states, the very foundation of must take into account while reaching a decision; for
their legal order then is attributed, by Derrida, to the instance, a judge in the trial court must consider the
ce
existence of violence.Furthermore, one can observe the possibility of his decision being reversed, or a judge in
potential for force, in its conventional brutal form or an appellate court must attempt to get the support of
en
otherwise, to be “the result of a complex discursive structure”20. another judge on the bench26. This aligns with the post-
As Davies explains, the law enforces its own meanings modernist approach built upon earlier, wherein one
ud
and ‘legal’ interpretations of an event by re-casting, re- avoids putting forth a universal meta narrative that
phrasing and re-viewing the experience of a layman; a claims to capture and standardize all experiences within
pr
process which usually culminates “with a sense of alienation a particular setting. Cover does nothing of the sort, and
ris
experienced by the individual in relation to the law”21. As can be instead, throws light upon the diverse experiences and
seen above, deconstruction attempts to delve into more roles within a legal system, be it in different layers
Ju
than what simply meets the eye, and, in doing so, bring (police, warden, jailer et al) or even within the same layer
to the fore those underlying ideas that are often the (trial court judge or appellate court judge).
&
driving force behind the impugned action; it’s
fundamental premise involves “suspending the imperatives of Similarly, Cover’s text also reflects the Foucaultian
aw
a theory, text, or mode of perception in order to reinvent it analysis of power highlighted above. He doesn’t simply
differently”22. state that judges possess power, in the context of legal
interpretation, due to their position in the hierarchy of a
L
RELEVANCE TO THE TEXT legal system. Nor does he deem the act of a judicial
of
utterance to be analogous to the exercise of power by a
As mentioned earlier, segments of the aforementioned supreme individual, determined primarily by personal
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three theories can be observed in the general theme of motives and purposes. Contrarily, Cover takes into
rn
Cover’s text, as he primarily discusses the undertone of account the social element behind the whole concept of
actual violence which accompanies a judicial utterance legal interpretation, detailing the experiences of the
ou
and the social mechanisms which provide a conducive judges, wardens, police and even the prisoner. He
setting for this act of judicial interpretation of law. recognizes that even the prisoner being sentenced by the
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Particularly, one can noteCover’s emphasis upon the judge might possess the power to potentially organize
decisions by Judge Herbert Stern in United States v. force against his imprisonment; yet, he refuses to wield
na
Tiede 23 , wherein Stern illuminated upon the roles of this power due to the inevitable overpowering of it by
numerous actors in the transformation of the judicial
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the judge and other actors within the legal system, which
word into a punitive deed (performance of violence of more often than not will result in the prisoner being
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punishment upon a defendant) 24 . It is the lawyers, beaten and dragged to jail 27 . Furthermore, even the
police, jailers, wardens, and magistrates who provide power of a judge can be traced to the suppression of an
er
social cooperation which ultimately leads to the autonomous “conscience” in favor of the social
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execution of the punitive deed authorized by the judicial organization of individuals into formal structures, i.e.
word; while this cooperation is normally taken for the willingness of the warden, for instance, to pay
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17 J.Derrida, “Force of Law: The ‘Mystical Foundation of 22ibid p.382

Authority’” in D. Cornell, M. Rosenfeld & D.G. Carlson 2386 F.R.D. 227 (U.S. Ct. for Berlin 1979)
(eds.), Deconstruction and the Possibility of Justice (1992) 24supra n1 p.1620
18ibid p.268 25ibid p.1620
19ibid p.269 26ibid p.1627
20supra n6 p.378 27ibid p.1607
21ibid p.378
*
14
automatic heed to the judicial utterance in recognition law. The adoption of “broad interpretive categories such as
of the social structure of the legal system 28 . If the ‘blame’ or ‘punishment’”32, illustrated by Cover to be geared
wardens were to cease in these acts of obeyance, the in favor of justifying the judge’s acts, is testament to the
judges would be “left with only the opportunity to persuade the aforementioned argument. Therefore, the
wardens and their men to do violence”29. Thus, it is blatantly deconstructionist motive underpinned in Cover’s text is
evident through Cover’s work that power in the abundantly clear, as he exposes the actual violence and
contemporary legal system is not a commodity force that judicial rhetoric and the act of legal
ce
possessed and employed by a select few, rather it is interpretation entail.
prevalent at even the lowest rungs of the system. Cover
en
would agree then that power is truly circulated CONCLUSION
throughout each layer of the system, and functions, to a
ud
certain extent, in the manner Foucault had envisaged. Through the posing of arguments built upon post-
modernist and deconstructionist schools of thought,
pr
Finally, one can deduce a strong link between the with substantial usage of Foucault’s analysis on power
deconstructionist thoughts of Derrida and the revealing and discourse, Cover has effectively managed to
ris
perspective of judicial interpretation proposed by showcase the direct nexus between an act of legal
Cover, though there are key dissimilarities between the interpretation by a judge and the actual violence that it
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two. Whereas Derrida deems the very premise of a legal triggers. It is key to note however that his work is not a
order to be founded upon violence, Cover focuses his rejection of the “balance of terror” 33 enforced by the
&
analysis chiefly upon the interplay between legal rhetoric modern legal system, rather it is an attempt to illustrate
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and violence. Derrida sees the framework of law as the actual workings of the system and to enlighten
intrinsically connected to violence, and Cover, perhaps readers about the frightening ability of language to alter
implicitly accepting Derrida’s view, discusses the our conception of reality. Ergo, Cover’s text is a crucial
L
manner in which the law (specifically, the judicial word) piece of jurisprudential thought, in so far as it highlights
of
sanitizes or domesticates violence 30 . To indulge in a the social complexities embedded within acts of legal
botanic analogy, Derrida highlights the root of the interpretation, the circulation of power within the legal
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problem, and Cover builds upon this by shedding light system and the overarching element of violence imbibed
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on the branching out of the same. in the law.

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Furthermore, legal rhetoric remains particularly “The judges deal pain and death.”34
problematic as it perpetuates the use of force in a
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disguised manner, so as to subvert the autonomous

inhibitions of an individual against the use of force and
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violence, and consequentially, facilitate regulation of

human behavior by the state in an efficacious manner.
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The tangible impact of the judicial word is immense;

nt
“people are thrown in prison, ordered to sell their businesses, forced

to give up their children, or sentenced to lose their lives”31. Yet,
er
words conceal and dilute these facts. The general

nt
discourse adopted is also of such a nature that it

necessarily prioritizes the judge’s perspective and
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interpretation over that of the defendant, who, as

Davies points out, is rendered alienated in relation to the
Th
28ibid
p.1626 31ibid p.1900
29ibid
p.1626 32supra n1p.1608
30Minow, M. (1987). Interpreting Rights: An Essay for Robert 33ibid p.1608
Cover. The Yale Law Journal, 96(8), p.1860. 34ibid p.1609
*
15

LITHA ELIZABETH GEORGE
INTRODUCTION Redressal of Public Grievances Rules,1998 also

stipulates that these rules shall apply to all the
ce
The word grievance is defined as the cause for insurance companies operating, i.e., it includes general
en
complaint or unfair treatment. Grievance is insurance and life insurance business. It is also
dissatisfaction of customer on a product or service provided that the Government reserves power to
ud
offered by a manufacturer or a service provider 1 . exempt any company from the provisions of the
Ombudsman, the Swedish word means the right of Redressal of Public Grievances Rules if it is satisfied
pr
individuals against public authority2. The institution of that such insurance company has a grievance
Ombudsman was setup in the insurance industry in redressal cell which fulfills the requirement of those
ris
India for the speedy disposal of the grievances of the rules6.
insured in the contract of insurance. The institute of
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Ombudsman in the insurance sector was recommended POWERS OF INSURANCE
by the Malhotra Committee. OMBUDSMAN
&
INSURANCE OMBUDSMAN: LEGAL The basic function of insurance ombudsman is redressal
aw
PERSPECTIVES of grievances cost effectively, efficiently and in an
L impartial manner. The insurance ombudsman has two
The Malhotra Committee, which was setup in 1994 types of functions to perform7
to recommend insurance sector reforms, while
of
recommending privatization of the insurance sector, 1. Conciliation
also acknowledged the need to protect consumers’
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2. Award making
interests and recommended setting up of the
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institution of Ombudsman, with a view to reducing The insurance ombudsman is empowered to receive
avoidable litigation and resultant delays in redressing and consider complaints in respect of personal lines
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customer grievances.3The Insurance Act,1938 have of insurance from any person who has any grievance
conferred power upon the Central Government to against an insurer.8
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make rules to carryout the purposes of the Act. In

The Ombudsman have the power to receive and
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exercise of these powers, the Central Government

framed the Redressal of Public Grievances Rules, consider complaints, conferred by Rule 129 and the
io
1998. The object of these rules are to resolve all complaint may be in connection to or against the
complaints relating to settlement of claim on the insurer filed under Rule 13 10 and also includes
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part of insurance companies in cost effective, complaints with regard to;

er
efficient and impartial manner. 4 Rule 2 5 of the

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1 Rajesh K. Yadav& Sarvesh Mohania, Role of Insurance

4 Redressal of Public Grievances Rules,1998, Act no:41 of
1999,Acts of Parliament
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Ombudsman and Grievance Management in Life Insurance 5 Id

Services in Indian perspective, INTERNATIONAL 6 Id
Th
7 INSURANCE REGULATORY AND DEVELOPMENT

LETTERS OF SOCIAL AND HUMANISTIC SCIENCES
(April 15, 2018, 12:54pm), AUTHORITY OF INDIA, Functions of Ombudsman,
(April 15, 2018, 5:38pm),
https://www.scipress.com/ILSHS.31.9.pdf https://www.irdai.gov.in/ADMINCMS/cms/NormalData_
2 K S MURTHY & Dr. K V S SARMA, MODERN LAW OF Layout.aspx?page=PageNo233&mid=7.1
INSURANCE 355 (4d ed. 2010) 8 Id
3 DR. G GOPALAKRISHNA, SOCIAL SECURITY, 9 Supra Note 6
INSURANCE AND THE LAW 303-304(1d ed. 2011) 10 Id
*
16
ROLE OF INDIAN JUDICIARY VIS-À-VIS HUMAN RIGHTS

JURISPRUDENCE
MADHURI KHARAT
ce
INTRODUCTION specially to augment human rights of all. Human Rights
en
have been reshaped and modernized by the active role
Human rights are basic and minimum rights of
played by High Courts and especially by the Supreme
ud
individuals which helps each individual to live civilized
Court.
life with respect and dignity. After Second World War,
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individual became the important subject of International HUMAN RIGHTS- JURISPRUDENTIAL
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Law which ultimately lead to recognition of human FOUNDATIONS
rights. The greatest value of human life is best
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The notion of human rights is being considered as the
represented in the recognition of fundamental rights, most important evolution in the human history. The
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and in fully enabling people to enjoy and exercise these
concept of human rights, embodying the minimum
rights to the extent that preserves their humanity and
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rights of an individual versus his own State, is as old as
respects their civility.1 The rights of individual would fail
L Political Philosophy.2 They have developed with change
to exercise if society will not be matured one. Therefore, in the society and became an imperative part of the legal
of
it is the duty of the State to make every best effort to
system around the globe. They exist in every corner of
protect and promote rights of all people irrespective of
the world irrespective of nature of society.
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caste, region, race, gender etc. The judiciary has been

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very peculiar pillar of Indian democracy to respect voice Human rights are natural birth rights which are in
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of every individual in need. existence since human species came into existence.
Though human rights derived its validity from several
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India being party of United Nations, has obligations laws, rules and regulations but they were present from
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towards protection and promotion of human rights the very beginning of mankind. Natural rights are
through legal modes as well as its effective
developed along with natural law. In the era of ancient
io
implementation. There are number of legislations which

Greece wherein the connotation of human rights began
nt
have been adopted in consonance with International to be recognized with great importance against the
er
Human Rights Law. After adoption of number of

prevention of arbitrary persecution. They are very much
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legislations, Indian Judiciary has remained efficient to

similar with natural rights. Natural rights are those rights
maintain its reputation and credibility since its
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which are derived from nature and which evolved along

independence. It has played a significant role in fulfilling with nature. According to Greek tradition of Socrates
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obligation laid down by the Constitution of India

and Plato, natural law is the law that reflects the natural
1Fahad Abul-Ethem, The Role Of The Judiciary In The Protection 2D.D. Basu, Human Rights in Constitutional Law, 2003, 2 (2nd
Of Human Rights And Development : A Middle Eastern Perspective, ed., 2003).
26 Fordham International Law Journal, Issue 3, 2002 Article
8, p. 761.
*
109
order of the universe, essentially the will of the God who Other than natural law, positive law which was reaction
control nature.3 One of the noted Roman Jurist Ulpian to the natural law, did contribution for development of
believed that natural rights belonged to every person, concept of law. Natural law was considered as the
whether they were a Roman citizen or not.4 There has concept was vague and ambiguous and lead to number
been great contribution of roman jurist who tried to of interpretations. Therefore, thinkers like John Austin
build cohesive relationship between rights and duties in etc. believed that law shall be based on command of
ce
society. The great religions of the world – Judaism, sovereign and people should obey the orders of
en
Hinduism, Christianity, Buddhism, Taoism, Islam, and sovereign. In this regard, rights of individual will be
ud
others – have all sought to establish comprehensive, under the control of sovereign and such rights cannot
coherent, moral codes of conduct based on divine law.5 be absolute one and it can be given or taken away or
pr
modified by orders of sovereign. Jeremy Bentham, as a
Though there are number of documents from Roman
ris
legal positivist discussed the essence of the positivist
laws but ultimately all leads towards recognition of
view: “Right as a child of law; from real laws come real
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dignity of the human being, and are concerned with the
rights, but from imaginary law, from ‘laws of nature’
duties and obligations of man to his fellow human
&
come imaginary rights. Natural rights are simple
beings, to nature and indeed to God and the whole
nonsense.”7
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creation. Once the concept of higher law binding on
human authorities was evolved, it came to be asserted These are few glimpses from jurisprudence which laid
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that there were certain rights anterior to society, which towards recognition of human rights from natural law
of
too were superior to rights by the human authorities, and positive school of thoughts. Though human rights
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were of universal application to men of all ages and in are indivisible and interdependent, therefore, it is
rn
all climes, and were supposed to have existed even undisputable that though there is difference of opinion
before the birth of political society. These rights could between two school of thoughts but still recognition of
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not therefore, be violated by the State.6 Blackstone in his rights of people in the society cannot be denied.
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“Commentaries on the Laws of England” has argued

EVOLUTION OF HUMAN RIGHTS
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the case for a natural law, superior to man-made law.

Blackstone has pointed out that the right to personal The history of human rights can be traced back from
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security, right to personal liberty and right to private adoption of Hammurabi code, which was created 4000
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property is ‘founded on nature and reason’. years back as binding precedent for legal system. The
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Sumerian king Hammurabi created it in codified manner

nt
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3Contemporary Perspectives on Natural Law : Natural Law as 5 Moira Rayner , History of Universal Human Rights - UP TO
a Limiting Concept , available at WW2 available at
Th
https://www.um.es/urbanoferrer/documentos/Natural%20 http://www.universalrights.net/main/histof.htm visited on

Law.pdf last visited on 18/08/2018. 09/09/2018.
4 Albert C. Gaw , The Development of The Legal Status of The Deaf: 6 D.D. Basu, Human Rights in Constitutional Law, 2003, 8 (2nd
A Comparative Study of The Rights And Responsibilities of Deaf- ed., 2003).

7 Jeremey Bentham, Anarchichical Follies,17 in Tomorrow’s Rights
Mutes In The Laws of Rome, France, England, And America.—II,
51 American Annals of the Deaf Vol. 51, No401,423 (1906). in the Mirror of History (N. Kinsella,,1st ed., 1982).
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110
to protect the people from the arbitrary persecution and on the throne, but also led to the English Bill of Rights,
to punish wrongdoers. Even in addition to this there in 1689.
were few more legal documents such as Babylonian
The English Bill of Rights was primarily focussed upon
laws, Assyrian Laws, Hitti Laws and in the Dharma of
basic and fundamental concerns of the time. Law was
the Vedic Period in India.8 It is evident form historical
considered as equal for all. King was supposed to be
footprints that right to freedom of speech, right to
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under the rule of law. His rights and liberties against
equality, right to cast vote and elected to public office,
en
violation of rights of individual was restricted by the law.
right to access to justice were augmented since the old
It was with an aim that king or people in the society
ud
Greek city states. The jus civile the roman law was
should respect law as well as the power of parliament
example to evolve law with historical reasons, existing
pr
which elected by people and it should have control over
values and customs which ultimately recognized the
factors like money and property. It also strives for
ris
rights of individuals. Though the term ‘human rights’
recognizing and protecting fundamental rights of people
was not specifically referred but the purpose was to
Ju
like excessive bail or fines, cruel and unusual
strive for recognition of interests of individuals in the
punishments and unfair trials: it guaranteed juries,
&
society.
impartial courts and independent judges. It reiterated
aw
The Magna Carta ‘widely known document’ was some of provisions made by King John in the Magna
adopted by King John of England on June 15, 1215 to Carta.
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revival of rights and duties and came as a declaration to
of
In 18th century, according to John Locke, a natural law
the people of England that the King would not infringe
lawyer stated that, it was part of God’s natural law that
al
upon their privileges in arbitrary manner. It was made

no one should harm anybody else in their life, health,
rn
with an aim to save people of arbitrary levying of taxes

liberty or possessions. These rights could never be given
and it was made it clear that people had certain rights,
ou
up. The existence of this natural law also established the

which the King is bound to recognize and if he fails to
right to do whatever was necessary to protect such
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do so, be compelled to observe by force. The protection

rights. It provided that people should maintain
na
of the rights, especially the right to political

relationships among themselves and government will be
participation, and freedom of religious belief and
io
available to protect their rights. The government looked

observance, against an oppressive government was the
nt
into the matters of people only in case of violation of

most important to save the people from government
nay right which provided limited role of government in
er
which laid to English Revolution of 1640 (which led to

participation of public affairs. Later on, people became
nt
rebel leader Oliver Cromwell) heading the government,

supreme to reject or overthrow the government if it
and the King being executed). It was laid revolution of
eI
could not function for the betterment of people.

the civil administration famously known as the
Th
‘Glorious Revolution – of 1688’ which saw another king This ideology laid to evolution of the American
Colonies’ Declaration of Independence in 1776. This
8 H.O. Agarwal, Human Rights, 4, (6th ed., 2000).
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111
not only avowed that governments were established by Rights. The Preamble to the Universal Declaration of
the consent of the people to augment the rights, but Human Rights declares : “Recognition of inherent
unforgettably expressed these rights in the terms that : dignity and of the equal and inalienable rights of all
“all men are created equal, that they are endowed by their Creator members of the human family is the foundation of
with certain inalienable rights, that among these are Life, Liberty freedom, justice and peace in the world.”12
and the pursuit of Happiness”9 In 1789, as a result of the
ce
United Nations, later adopted a number of international
French Revolution, the Declaration of the Rights of
en
convention, covenants, declarations, and other treaties
Man and of Citizens asserted the primacy of natural
that have followed the tradition. Several nation-states
ud
rights in similarly inspirational terms to the US
have also adopted human rights standards based on the
Declaration of Independence. 10 The Declaration of
pr
guidelines. Many nations have incorporated rights into
French Revolution, which may be regarded as a concrete
their domestic constitutions – acknowledging that the
ris
political statement on Human Rights which was inspired
rights exist, not that they are created by their laws.
by the Lockeian philosophy declared : “ The aim of all
Ju
Respect for human rights is becoming a worldwide
political association is the conservation of the natural
principle of good governance.
&
and inalienable rights of man.”11
aw
The expression ‘human rights’ was recognized in the
HUMAN RIGHTS LAW IN INDIA
post second world war when individual became the The Constitution of India, adopted and enacted on 26th
L
subject of International law. Human rights got November 1949 and commenced from 26th January
of
international origin and which laid to adoption of 1950 was influenced by the concept of human rights.
al
Charter of United Nations,1945 at San Francisco. The The Preamble, which contains the ideals and aspirations
rn
preamble of the UN Charter declares that the United or the objects, intended to be realized by the
Nations shall have for its object, inter alia, “to reaffirm Constitution states that the Constitution is enacted “…
ou
faith in ‘fundamental human rights’ …” In Art. 1 of the to secure to all its citizens: Justice – social, economic and
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UN Charter it is stated that the purposes of the United political ; liberty of thought expression, belief, faith and
na
Nations shall be, among others, “to achieve worship; Equality of status and opportunity; and to
international cooperation… in promoting and promote among them all fraternity assuring the dignity
io
encouraging respect for human rights and for of the individual…”13

nt
fundamental freedoms for all without distinction as to

The Constitution of India is a such document which
er
race, sex, language, or religion…” In 1948, UN General

confluence common law system, civil law, customary
nt
Assembly adopted the Universal Declaration of Human

law as well as religious laws. India as a nation-state, is
eI
Th
9 American Colonies, The Declaration of Independence, (1776) http://avalon.law.yale.edu/18th_century/rightsof.asp last

available at visited on 01/09/2018.
10 https://www.bl.uk/collection-items/the-declaration-of- 12 U.N. General Assembly, Universal Declaration of Human
the-rights-of-man-and-of-the-citizen last visited on Rights, Res. 217A , (10/12/1948), available at

07/09/2018. http://www.un.org/en/documents/udhr/ last visited on
11 France National Constituent Assembly, The Declaration of 07/09/2018.
French Revolution, (1979) available at 13 Preamble (The Constitution of India, 1950).
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112
pending with various offices of Ombudsmen as at the While comparing with other redressal agencies,
end of March 2016. 34 During 2016-17, Ombudsmen Ombudsman first attempts to dispose the complaint
disposed of 27990 complaints. 35 through mediation with mutual consent of the parties
Awards/recommendations were issued for 26.87 and make recommendations according to the subject
percent of total complaints. Other than this, 7.01 matter of the issue. The complainant has the option to
percent of the complaints were withdrawn/settled, consent or not to, to the recommendations of the
while nearly 9 percent of the complaints were dismissed. Ombudsman and if he agrees, through his consent it
ce
2330 complaints were pending as on 31st March, 2017. becomes binding on the insurer and the insurer do not
According to this data, as on March 2017 only 2330 have the right to appeal against the recommendation.
en
complaints are pending out of 30,320 total cases.
If the complaint is not redressed through mediation the
ud
ANALYSIS Ombudsman have the authority to pass an award with a
reasoning and which is fit and fair based on the
pr
The Redressal of Public Grievances Rules,1998 gives the circumstances and issues involved in the case. The
regulations according to which the institution of award passed by the ombudsman shall not exceed the
ris
Ombudsman works or acts. These rules make it clear amount of Rs. 20 lakhs including ex gratia and other
that the purpose is to render cost effective and speedy expenses. The award may or may not be accepted by the
Ju
disposal of grievances in the insurance sector. The most complainant., and once accepted by the complainant
important aspect is that Ombudsman is that it is not becomes binding on the insurer. If it is not accepted by
&
judicial body. There are alternate redressal agencies like the complainant it is not binding on the insurer, but
the Consumer forums and various powers have been
aw
once accepted by the complainant it becomes binding
conferred upon them. Even though Consumer on the insurer and he must comply with it. The
Protection Act includes insurance services in the ambit Ombudsman is not empowered to take further actions
L
of ‘service’ defined in the Act the fact that Insurance on noncompliance of the award or recommendation., he
of
Ombudsman is a dedicated scheme for redressing is not a judicial body thus cannot take any action on
insurance grievances and it is much more cost effective contempt when his recommendations are not complied.
al
for the common man to approach should be considered. This is the contradicting side of the rules; after consent
The platforms like Consumer Forums are much more
rn
from the part of the complainant the award becomes

judicial in character and thus time consuming and not binding on the insurer but on noncompliance with
ou
cost effective while comparing with the Ombudsman award or recommendation there is no power to take
scheme. And Consumer Forums are for consumer actions on it.
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grievance redressal and it includes almost all kinds of

service which makes it difficult to address the issue CAN THE INSURER APPEAL?
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within a limited time period. The data released by the

IRDA in the annual report shows that Ombudsman The Redressal of Public Grievances Rules,1998 do not
io
receives a considerable number of complaints and confer any right upon the insurer to appeal against the
nt
majority of the cases are settled or disposed within recommendation or award given by the Insurance
considerable time. It should be thus inferred that it is Ombudsman. If the consent is given by the
er
working in absolute compliance to the rule which complainant the award or the recommendation
becomes binding on the insurer and must be
nt
envisages the Ombudsman to dispose or settle the

complaint within 3 months of time period. complied within 15 days of the receipt of the
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consent.36 It is also stated that it does not debar

him to move to the High Court under Article 226
Th
of the Constitution of India.37
34
Id 36 Supra note 6
35 Id 37 Supra note 15 at 307
*
19
This question regarding the appeal and the writ petition to approach the consumer forums incase not satisfied
was a major issue in many cases. with the award or recommendation of the Ombudsman.
In a recent case38 the issues in question before the This seems arbitrary to the insurer and it is against the
Court where natural justice since the insurer is not also given the
option of appealing against the order of Ombudsman.
1. Whether the order passed by the respondent It is against the right to a ‘fair hearing’. Insurance
Insurance Ombudsman is sustainable and
ce
Ombudsman is a platform for redressal which
tenable...? 39 and allows no advocates either on behalf of the
en
complainant or the insurer. Thus, the interpretation of
2. Whether the order passed by the Ombudsman
law and analyzing the law and its various ambits have a
warrants any interference of this Court
ud
very limited scope, which makes it ambiguous.
under Article 226 of the Constitution of India.?40
pr
We must understand Insurance Ombudsman as a
The Hon’ble High Court of Andhra Pradesh after
welfare scheme to help insured incases of rejection of
analyzing Redressal of Public Grievances Rules, 1998
ris
claims. Such a cost effective scheme was identified for
gave the ruling.
the common itself and IRDA makes it clear that it
Ju
While analyzing the judgement, the inference is that the addresses personal line services only which does not
scope of a writ petition against the award by the include any Corporations. Thus, in case of complaints
&
Ombudsman is very limited and unless the findings of there will always be a presumption in favor of the
the Ombudsman are completely unfair and intensely complainant because of the whole objective of the
unreasonable and the Ombudsman have acted beyond
the jurisdiction conferred upon him. And also they
L
must be in violation to the principles of natural justice
aw
scheme. In such a scenario if the insurer is not given the
option to appeal it becomes unfair. It is thus erroneous
to not to have any scope of appeal by the insurer
of
then only the Court can interfere under Article 226 of against the award or recommendation of the
the Constitution of India. It must be also noted that Ombudsman. Thus rules must be enacted to make it
al
the conjunction used in the judgement41 is ‘and’42 further more fair towards the insurer. And also the
thus fulfilling either of the conditions is not adequate lacuna regarding the penalty on noncompliance of the
rn
to invoke Article 226 of the Constitution; it must award or recommendation must also be filled which will
thus reduce the ambiguity regarding the matter.
ou
fulfill all of the above conditions in the judgement

to file a writ petition against the award given by
CONCLUSION
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the Ombudsman.
na
In another recent case43 similar issues arose and Insurance Ombudsman according to the Redressal of
Calcutta High Court also observed that the rules Public Grievances Rules,1998 is an institution setup for
io
doesn’t confer rights upon the insurer to not to the speedy, cost effective and impartial redressal of
comply incase the insurer is aggrieved by the award insurance complaints and grievances. It is not a judicial
nt
given by the Ombudsman. body and do not hold any powers of a Court. The award
er
or recommendation of Ombudsman becomes binding

Thus, we must infer that only the complainant is given on the insurer only if it is given consent by the
nt
the option of consent and it becomes binding once it is complainant. As per the research done, insurance
consented by him. The complainant also has an option Ombudsman is an effective mechanism in cases of
eI
personal line services44. In comparison with Consumer

Th
38 Birla Sun Life Insurance Company v The Insurance 42 Id

Ombudsman and anr, 2014 43 Life Insurance Corporation Of India vs The Insurance
39 Id Ombudsman & Ors,2017
41 Id
*
20
Dipak Mishra observed that, ‘we have to bid adieu to

the perceptions, stereo types and prejudices deeply
ingrained the societal mindset, so as to ushered into
inclusivity in all spheres and empower all citizens alike
without any kind of alienation and discrimination.’
ce
en
ud
pr
ris
Ju
&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
eI
Th
*
115

HARSHIT SINGH & ALOK SAXENA
“The future of arbitration is bright, but only arbitration can be heard sooner. The arbitration hearing
because the future of litigation is not” is shorter and work is less demanding. Thirdly, when an
ce
arbitration proceeding is going on, it is constantly secret
-Fali S. Nariman i.e. it is a private gathering in which the media
en
individuals and the individuals from the general
INTRODUCTION
ud
population are not allowed to go. In addition, a final
decision is not published and additionally they are not
In the most fundamental dialect, arbitration implies a directly accessible. Fourthly, arbitration is extremely
pr
non-legal process for settlement of dispute where there convenient for the general population of low income as
is an independent party i.e. the outsider/third party
ris
the hearings of the procedures are arranged now and
known as an arbitrator who settles on decisions on the again and places that suits the parties, authorities and the
Ju
respected cases and his choices are authoritative on the witnesses. Further, the techniques of intervention can
parties. The role of mediator/arbitrator is like that of the be fragmented, streamlined or improved by the
judge yet it is less formal and an arbitrator is a specialist
&
conditions of the case.
in his own right. Arbitration is the private, legal
aw
assurance of a dispute, by a third party. An arbitration Then again Intellectual property rights resemble any
hearing may include the utilization of an individual L other property right. They permit makers, or
arbitrator or a tribunal. A tribunal may comprise of any proprietors, of licenses, trademarks or copyrighted
number of arbitrators however some legitimate works to profit by their own work or interest in a
of
frameworks demand an odd number for evident reasons creation. These rights are produced in Article 27 of the
of wishing to dodge a tie. One and three are the most Universal Declaration of Human Rights, which
al
widely recognized quantities of arbitrators. accommodates the privilege to profit by the assurance
rn
of moral and material rights coming about because of

The general standards of arbitration are as per the origin of scientific, literary and artistic preparations. The
ou
following- significance of intellectual property was first perceived

in the Paris Convention for the Protection of Industrial

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The principle question for setting up of arbitration

Property (1883) and the Berne Convention for the
is that a reasonable goal is established through a
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Protection of Literary and Artistic Works (1886). The

third party with no superfluous cost or deferral.
two arrangements are directed by the World Intellectual
 Through arbitration, the parties are allowed to pick
io
Property Organization (WIPO).

how their dispute ought to be settled.
nt
 In conclusion, during the arbitration, the courts are ARBITRATION AND INTELLECTUAL
not required to intervene.
er
PROPERTY RIGHTS
Arbitration has numerous constructive focuses over the
nt
Settling Intellectual Property Rights issue through

legal procedure, on account of which individuals have a
alternate dispute resolution was a system long
eI
tendency to go to arbitrate over disputes as opposed to

developing. It is the arbitration of dispute particularly;
determine their issues through litigation in the court.
institutional arbitration is getting to be vital for the
Th
The main, positive angle about arbitration is that the

divisions that are developing in India with regards to
parties are the decision makers. The parties can pick any
advancement and globalization. Intellectual Property
individual who has specialized learning if the dispute is
Rights are as solid as the implies that exist to uphold
identified with a specialized field. Through this the case
them. In this unique circumstance, arbitration, as a
will be all the more promptly comprehended. Also,
private and secret system, is progressively being utilized
where it takes quite a while in court proceedings,
*
SEPTEMBER 2018 1 Formerly Known as Global Journal of Arts
116
to determine question including Intellectual Property is as often as possible attested as a barrier to an activity
Rights, particularly while including parties are from brought under a licensed agreement, these disputes have
various jurisdictions. Institutional arbitration is a a tendency to be prosecuted in court. As needs be, the
procedure that isn't "impromptu" or chosen by utilization of Arbitration as an instrument to determine
mediators picked case by case by the parties to dispute such question is for the most part reliable with open
by common arbitration or named by the courts but by arrangement in many jurisdictions regardless of whether
Arbitrators by the board of establishment who have certain open strategy based confinements may constrain
ce
been picked by their depth in the knowledge. Every one the arbitrability of intellectual property disputes in
of these parts are progressively described by worldwide specific nations. Therefore, the grounds of in
en
transactions, where the laws fluctuate from nation to arbitrability of Intellectual Property disputes are very
nation and include a high level of specialization in the thin and ought not limit the parties for conceptualizing
ud
area concerned. Another basic factor is the criticality of and arranging ahead of time how an Intellectual
time, considering that patent terms are restricted, and Property Arbitration could effectively be organized and
pr
innovation could end up out of date quick, and what components ought to be contemplated in this
ris
consequently the long span taken by courts to settle structure.
dispute beyond, the extension for claim conflicts with
ADVANTAGES FOR ARBITRATION FOR
Ju
the enthusiasm of parties. Thus arbitration offers these
segments focal points especially profitable for them. INTELLECTUAL PROPERTY RIGHTS
&
The fundamental obstacle in utilizing arbitration to
determine Intellectual Property Rights question is the Arbitration is not a public trial, it is a private and secret
aw
issue of its subject matter arbitrability. procedure and also protects trade secrets and other
sensitive data that may be uncovered in the course of
Intellectual Property rights are regional and are litigation. The advantages of arbitration in Intellectual
L
essentially derived from the legal protection conceded Property dispute are numerous. Apart from
of
by the local sovereign power, which manages the classification and freedom to choose arbitrators with the
grantee certain exclusive rights to utilize and abuse the law and innovation, IPR arbitration offers the parties
al
rights. It is contended that question in connection to its decision of neutral languages, laws, adaptabilities in
rn
operator, legitimacy and the degree of rights allowed procedures in settling the issue, particularly when the
ought to be resolved just by the authority which contention spans issues of various nationalities like say
ou
conceded the privilege or in specific circumstances by in cross licensing. An expert arbitrator could shed a
the courts of that nation. This had an impact that the significant part of the discovery process and decide the
lJ
rights and qualifications to IP and the legitimate issues case more rapidly in this manner taking out expenses
which spilled out of those rights couldn't conveniently fundamentally. It is progressively being used to
na
be alluded to or considered by an arbitrator. Where be determine dispute including different jurisdictions.

that as it may, the parties go into arrangements
io
Arbitration as a system guarantees irrevocability of the

identifying with the improvement, utilize, showcasing or question in view of limited appeal, more sureness about
nt
exchange of IP rights in truth, dispute emerging from the planning of final judgment and assumes a pivotal
such commercial activities could be refereed with no
er
part in adjusting profitable business connections by

contention emerging from the issue of its arbitrability. limiting adversarial and litigious problems of the other
nt
Such issues are for the most part viewed as inner parties' party.
business matter and are arbitrable.
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Be that as it may, one of the greatest criticisms against

IP arbitrations are uncommon on the grounds that in mediation in IP is that it is restricting in general between
Th
addition to other things, IP dispute as often as possible the parties and, does not set a public point of reference
don't include a previous legally binding relationship. as regards to its utilization as an infringement and setting
Arbitration anyway requires an authoritative consent to up a culture of trustworthiness. Likewise, plaintiffs
arbitrate. Furthermore a few nations don't enable regularly incline towards public battles to exhibit their
arbitral councils to control on issue of patent invalidity
*
117
qualities, make public debates on imperative IP issues It executed a term sheet contract with Telemax
and move forward their public image as a major aspect (defendant) for allowing content showcasing and
of their band administration procedures. Other worries conveyance rights in regard of movies. The said term
against this instrument of dispute is the nature of proof sheet had an arbitration clause. Likewise, while the term
being conceded by arbitrators as not being liable to strict sheet pondered the execution of an arbitration inside a
principles like in the official courtrooms and the restricted time, be that as it may, no such agreement was
wrecking of the arbitral procedures at the point when executed.
ce
specialized experts engage in conflicts. Parties
additionally don't really resort to arbitration principally Question emerged between the parties and Eros
en
on account of finding appropriate arbitrators or on (plaintiff) filed a suit for encroachment of copyright
account of jurisdictional issues in instance of against Telemax and the ensuing licensees. Eros
ud
international contracts. contended that Telemax was not qualified for endeavour
and manage such substance before execution of the
pr
ARBITRATION OF COPYRIGHT agreement. Then again, to counter the suit, Telemax
DISPUTES filed an application under Section 8 of the Arbitration
ris
Act expressing that all dispute (counting under the
Commonly a question emerges before the ambit of the present suit) amongst Eros and Telemax be alluded to
Ju
Courts, about whether instances of Intellectual Property arbitration in perspective of the arbitration clause in the
viz. those including passing off of copyrights, are term sheet, which angle came to be chosen as a part of
&
manageable to the jurisdiction of an arbitrator or similar decision.
aw
lies solely in the ambit of courts. The legal regulation
Eros contended that term sheet was not official and that
that has developed as to the furthest reaches of
Telemax had encroached its copyright and had likewise
arbitrability is that all dispute identifying with rights in
L
sub-authorized this copyright-secured material to
personam are thought to be agreeable to arbitration and
of
alternate respondents to the suit. Eros contended that
all question identifying with rights in rem are required to
the activity against Telemax was not for breach of an
be arbitrated by courts and public tribunals.
al
agreement (since the term sheet had additionally

In this regard, the Delhi High Court in the matter of terminated), yet was a statutory activity under the
rn
HDFC Bank v. Satpal Singh Bakshi1, observed that Copyright Act, which is characteristically non-arbitrable.
Eros likewise fought that alternate defendants were not
ou
‘all disputes relating to “right in personam” are arbitrable and

choice is given to the parties to choose this alternate forum. On the a party to the term sheet. Telemax contended that the
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other hand, those relating to “right in rem” having inherent public dispute emerging out of the term sheet was absolutely
interest are not arbitrable and the parties choice to choose forum of legally binding and not just an activity for copyright
na
arbitration is ousted’. encroachment. Telemax further contended that by the

suit, Eros looked to uphold a right in personam rather
io
In a recent judgment of Eros International Media than a right in rem.

nt
Limited versus Telemax Links India Pvt Ltd 2 an

application was moved by the respondent (Telemax) Further, other defendants, who were not parties to the
er
under Section 8 of the Arbitration and Conciliation Act, term sheet, were in the idea of people claiming through
1996, and the inquiry emerged whether under the law or under Telemax (under the revised Section 8) and had
nt
there is a particular bar to arbitration or the arbitrability likewise filed affidavits consenting to present the whole
eI
of such Intellectual Property question and whether such question to Arbitration. Telemax likewise contended
dispute are just amendable to Jurisdiction of courts. that there was no particular bar on the arbitrability of
Th
such dispute and relied on the decision of the Supreme

To sum things up, the foundation of the case was that
Eros (plaintiff) had copyright in a few component films.
1 193 (2012) DLT 203 2 MANU/MH/0536/2016
*
118
Court of India in Booz Allen and Hamilton Inc v. SBI Home obstacles and issues that has been causing a bit
Finance Limited and Ors.3 inconvenience in the total usage of Arbitration.
The Court while ruling for the defendant (Telemax), saw  Applicability of the Amended Act
that the provisions of the Copyright Act and the
(Indian) Trade Marks Act, 1999 (Trademarks Act) don't In 2015, India took an enormous jump and chose
expel the purview of an arbitral panel, they just try to to amend Arbitration and Conciliation Act, 1996.
After the required alterations and changes, the Law
ce
guarantee that such activities are not to be brought
before the Registrar or the board. Further, where there Commission of India, in 2015, changed the
en
are matters of commercial disputes and parties have Arbitration law mandate issued in October 2015.
intentionally chosen to allude these question emerging Toward the end of 2015, the Indian Parliament
ud
from that agreement to a private discussion, no inquiry passed a bill which rolled out the amendments
emerges of those disputes as being non-arbitrable. Such permanently, and on 31 December 2015 the
pr
activities are dependably activities in personam, one party Arbitration and Conciliation (Amendment) Act,
looking for a specific relief against a specific defined 2015 (the "Amendment Act") moved toward
ris
party, not against the world at large. Eros' activity is in becoming law. One of the real hindrances that
personam as it is looking for a specific relief against a Arbitration as a field is witnessing, is the reality
Ju
specific defined party. whether the Amended Act, Arbitration and
Conciliation (Amendment) Act, 2015 (the
&
This choice makes it richly evident that although under "Amendment Act"). There have been High Court
trademark and copyright law, enlistment allows the
aw
judgments which are contradicting in nature. In one
registrant a rights against the world everywhere and it is case, it was held that the amendment act won't be
conceivable that a resistance to such an application pertinent to the stage post arbitral proceeding. This
L
(before the Registrar) would be an activity in rem, be was held by the Madras High Court, in connection
of
that as it may, an encroachment or passing off activity to Section 26[3] of the Amendment Act. Be that as
binds only the parties to it. it may, Delhi High Court held that court procedures
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which are started post change would not go under

CHALLENGES WITH RESPECT TO
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the Amended Act except if they were simply

ARBITRATION IN INTELLECTUAL procedural in nature. This case elucidates that the
ou
PROPERTY RIGHTS DISPUTES appropriateness of the Amended Act is as yet not

clear and this prompts distinctive translations by the
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Arbitration, as a method for dispute resolution, has risen court, which could turn out to be an issue.
to be an exceptionally effective endeavor. This pattern
na
has been seen in India, as well as everywhere throughout  Arbitrability of cases of oppression or
the world. The greater part of the cases that come up, if mismanagement
io
conceivable are sent for Arbitration. Be that as it may,

nt
for our nation, this concept is a new idea. In the recent Another issue that is confronted is that in instances
past, the laws of arbitration have advanced and of abuse or blunder, not every last noteworthy act
er
accumulated a ton of consideration, particularly in India. which is a result of such cases, is limited to the case
as it were. A few questions may prompt be making
nt
It is obvious from the previously mentioned data that

Arbitration, almost certainly plays a vital and compelling impact to a third person, who isn't even a party of
eI
part in the critical thinking and decision making. the Arbitration agreement. In this way, such
Additionally, it isn't confined to only a solitary field of question is rendered non-arbitrable.
Th
law, yet to many. Be that as it may, there are a few
3 Booz Allen & Hamilton Inc v SBI Home Finance Limited & Ors
(2011) 5 SCC 532
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119
 Arbitration under foreign law and agreements. Due to these agreements and
arrangements the request of IP rights holders to manage
Another issue is whether Indian parties getting into IPR dispute at a global level is likewise expanding. At
an arbitration agreement, can pick a foreign law to the point when parties look for mechanisms for dispute
oversee such arbitration. There have been resolution, they consider their business interests as
numerous cases talking about this perspective, be essential concern and they wish for the dispute
that as it may, there is still no lucidity. Bombay High settlement to be close to home, exceedingly adaptable
ce
Court, in the case of Addhar Mercantile Private Limited and productive, so their cross – border disputes can be
V. Shree Jagdamba Agrico Exports Pvt. Ltd4, expressed settled without discoloring their business relationship in
en
that Indian parties, picking foreign law to oversee the business. Arbitration, in spite of the difficulties it
their arbitration agreements, could be considered to causes, is as yet favored over litigation with regards to
ud
restrict public policy of the nation. In any case, on cross-border IPR dispute. It avoids parallel prosecutions
account of Sason Power Ltd. V North America Coal and has its natural points of interest in managing
pr
Corporation India Pvt. Ltd5., the Madhya Pradesh High commercial disputes in regard of adaptability, privacy,
Court held that two Indian parties may direct
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conclusiveness.
arbitration under foreign law.
The Arbitration of International Intellectual Property
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 Not confident about taking dispute to Disputes will fill in as a helpful reference and guide for
Arbitration navigating through the mind boggling maze of
&
Intellectual Property and Arbitration. As affirmed by the
aw
One of the significant issues with regards to development of IP arbitration proceedings and by
Arbitration in IPR dispute is that it is extremely hard ongoing patterns, the utilization of arbitration for
to get injunctive relief and punitive damages comprehending international arbitration dispute is
L
expediently. An IP holder may need his case to be expanding. This pattern can be affirmed by the decision
of
settled quickly and such help will probably be made by arrangement producers to approve and
acquired from litigation instead in form of an advance the utilization of arbitration for unravelling
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arbitration proceeding. Likewise, IPR dispute are Intellectual Property disputes, which constitutes an
rn
usually among parties who don't have any unmistakable sign that Arbitration is a sufficient
acquaintance with each other from previously and technique for solving intellectual property dispute that
ou
have no prior relationship and along these lines they does not debilitate in any way, the powers of State
are not inclined to consent to present their question authority over intellectual property as such.
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to ADR.
In perspective of these improvements, it is vital that
na
In different conditions, even with regards to an existing every one of the partners, and especially the parties and
relationship or forthcoming transaction, there still might their counsel, shall become mindful of the adequacy of
io
be reasons why some parties might not have any desire Arbitration for unravelling International Intellectual
nt
to consent to the goals of any IP dispute by discretion Property disputes. This requires moving past the
of some other type of ADR. threshold issue of arbitrability of Intellectual Property
er
disputes with a specific end goal to address the issues

which can essentially influence the success of
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CONCLUSION
Arbitration as far as cost, speed and effectiveness,
eI
With the appearance of globalization, Intellectual especially the extent of the arbitration clause and the
Property Rights have additionally turned out to be more definition of the governing law.
Th
internationalized and marketed. This is obvious from

the expanding number of cross-border arrangements
4 Arbitration Petition No. 910/2013 dated June 12, 2015. 5 First Appeal No. 310/2015 dated September 11, 2015
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REVANTH. A & VIKRAM. S
UNIFORM CIVIL CODE VIS-À-VIS Religion should not a basis for classification
ARTICLE 14 OF THE INDIAN
ce
Ambedkar, the Chairman of the Drafting Committee of
CONSTITUTION
the Constitution, during the Constituent Assembly
en
The right to equality has been declared by the Supreme debated on a Uniform Civil Code expressed the fact that
Court as the basic feature of the Constitution. 1 the Shariat law in fact did not apply to the North West
ud
Preamble to the constitution also emphasizes the Frontier Provinces where Hindu law of succession and
principle of equality as the basic feature of the other matters was followed so much so that in 1939 the
pr
constitution. This was also expressed by the Hon’ble Central legislature had to abrogate the application of
ris
Supreme court in Sri Srinivasa theatre2 that there was an Hindu law to the Muslims of the North West Frontier
obligation upon the State to bring about, through the Provinces and apply Shariat law to them. In North
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machinery of law, a more equal society….. For, equality Malabar, Marumakkathayam, matriarchal law of
before law can be predicated meaningfully only in an succession applied equally to all Hindus and Muslims.5
&
equal society.
It is of utmost importance to understand that the
aw
The strongest indicator of this is the case of Masilamani principle of equality does not mean that every law must
Mudaliar3 where a three judge Bench observed: “The basic have universal application for all the persons who are
structure permeates equality of status and opportunity. The not by nature, attainment or circumstances, in the same
L
personal laws conferring inferior status on women is anathema to position, as the varying needs of different classes of
of
equality. Personal laws are derived not from the Constitution but persons often require separate treatment.6
from the religious scriptures.”
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Classification according to Art. 14 would not apply to

A Uniform civil code envisages social reform by persons belonging to various religions. The entire
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stressing upon the idea of social equality. The equality problem under equal protection clause is one of
classification or of drawing lines.7 The Hon’ble Supreme
ou
clause under Art. 14 does not speak of mere formal

equality before law but embodies the concept of real and Court observed in Anwar Ali 8 and Sadasiv 9 :
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substantive equality, strikes at these inequalities.4 Time “Classification means segregation in classes which have a
has become ripe for India to bring in a comprehensive systematic relation, usually found in common properties and
na
UCC to realize the principles of social equality. characteristics. It postulates a rational basis and does not mean
herding together of certain persons and classes arbitrarily.” There
io
is no closed category of classification; the extent, range

nt
and kind of classification depend on the subject matter

of the legislation, the conditions of the country, and the
er
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1Indra Sawhney v. Union of India, AIR 2000 SC 498; Indira Nehru 5 Constituent Assembly Debates, Volume III, Lok Sabha
eI
Gandhi v. Raj Narain, AIR 1975 SC 2299. Secretariat, Government of India, 23 Nov. 1948, p. 551.
Sri Srinivasa theatre v. Govt. of T.N., AIR 1992 SC 999. State of M.P. v. Bhopal Sugar Industries, AIR 1964 SC 1179.
Th
2 6
7State of W.B. v. Anwar Ali, AIR 1952 SC 75; Sadasiv v. State of
3 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, Orissa, 1956 SCR 794(806).
(1996) 8 SCC 525.
8 State of W.B. v. Anwar Ali, AIR 1952 SC 75.
4 Secretary, H.S.E.B v. Suresh, AIR 1999 SC 1160.
9 Sadasiv v. State of Orissa, 1956 SCR 794(806).
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121
economic and social and political factors at work at a also archaic laws which is based only upon religion will
particular time. be outright done away with.
Classification based on religion would lead to Discriminatory nature of personal laws

anachronism when the present social circumstances of
the country are delved into. In the constituent assembly, ‘Discrimination’, shortly speaking, means difference in
K.M. Munshi expressed his opinion on a uniform civil treatment. The Dictionary meaning of ‘discriminate
against’ is to “make an adverse distinction with regard
ce
code during the constituent assembly debates on Art. 35
of the draft constitution (now Art. 44) that the people to”, “distinguish unfavorably from others”.14
en
should outgrow the notion given by the British that
In family matters, India has a system of personal laws,
personal law was part of religion.10
i.e. Hindu law for Hindus, Muslim law for the Muslims
ud
It was observed in John Vallamattam 11 that § 118 of and so on.15 Some of the laws have been amended by
statutes and some have not.
pr
Indian Succession Act which put restrictions on Indian
Christians in their disposing power, though formed a
In particular, the Indian Divorce Act is blatantly
ris
class by themselves was found to be invalid since the
discriminatory and unjust to women. Under § 10 of the
classification is not based on intelligible differentia or
Act, the husband can obtain a divorce on the ground of
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has any nexus with the object to be achieved. Further,
adultery simpliciter, but the wife, in order to obtain a
the classification between testators who belong to
divorce, has to prove one of the following grounds,
&
Christian Community and those belonging to other
namely, incestuous adultery, bigamy with adultery or
religions was held to be unreasonable.
aw
adultery coupled with cruelty or adultery with desertion
A classification which is not in tune with the L for two years.
constitution is per se unreasonable 12 and cannot be
A Special Bench of Kerala High Court in Ammini E.J.16
permitted such as the classification based on religion.
of
held that the § 10 is violative of Arts. 14., 15 & 21.
Therefore, even if a classification is rational and was not
Subsequently the Bombay High Court in Pragati
unconstitutional on the day on which it was enacted, it
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Varghese17 followed the lead given by the Kerala High

may by the passage of time, awareness and spread of
Court in recognising adultery, cruelty and desertion as
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education can render antiquated provision

grounds for divorce and held that § 10 is discriminatory
unconstitutional by obliterating the rationale.13 Though
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on the ground of sex and is, thus, violative of Art. 15(1).

the Uniform civil code was undesirable at the time of
making of the constitution, as time passed, the society Under § 6(a) of the Hindu Minority and Guardianship
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has come to a point where inequality based on sex within Act, 1956, the father of a Hindu minor is the only
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and among religions is being frowned upon. Gender guardian and the mother of the minor is relegated to an
justice has been given prime importance today, which in inferior position. She could become the guardian only
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fact should’ve been recognized before a long time. ‘after the father. The provision was challenged under
Through a UCC, not only will gender justice prevail but Arts. 14 & 15 on the ground of gender discrimination.18
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The Hon’ble Supreme Court opined that ‘gender

er
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10Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform JAIN, OUTLINES OF INDIAN LEGAL HISTORY, Ch.
15
Civil code, p. 39 (1998). XXV.

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11 Id. 16 Ammini E.J. v. Union of India, AIR 1995 Ker 252.

Th
12 Aharn Prakash v. State of Haryana, AIR 1986 SC 859. 17Pragathi Varghese v. Cyril George Varghese. 1997 AIHC 3493
(Bom).
13 John Vallamattam v. Union of India, AIR 2003 SC 2902.
18 Gita Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
14 Kathi Raning v. State of Saurashtra, AIR 1952 SC 123
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122
equality’ is one of the basic principles of the constitution unequals, it is necessary to adopt positive measures to
and interpreted § 6 so as to mean that the mother could abolish inequality. The idea of a UCC as a method for
act as the natural guardian of the minor during the bringing about a positive reform in the society was
father’s lifetime.19 mooted in the Constituent Assembly in 194725.
In John Vallamattom 20 and Kapila Hingorani 21 the court The Hon’ble Supreme Court in Jorden Diengdeh vs. S.S.
held that: "In any view of the matter even if a provision was not Chopra26 and Sarala Mudgal27 opined on the desirability
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unconstitutional on the day on which it was enacted or the of a UCC. The Court asked the Govt. of India to take a
Constitution came into force, by reason of facts emerging out fresh look at Art. 44 of the Constitution which entrusts
en
thereafter, the same may be rendered unconstitutional. The world the State with a duty to “endeavour to secure for the
has witnessed a sea change. The right of equality of women vis-à- citizens a uniform civil code throughout the territory of
ud
vis their male counterparts is accepted worldwide. It will be India”. Subsequently His Lordship Justice Kuldip Singh
immoral to discriminate a woman on the ground of sex. It is retracted the direction into a recommendation.28 What
pr
forbidden both in our domestic law as also in international law." is required to ensure equality and justice to half of the
population of India, viz. women, is a gender-just UCC.
ris
As we had observed, there are numerous provisions of Women under the Hindu, Muslim and Christian laws
the personal laws which violate the rights of women and suffer from discrimination and inequalities in matters of
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hinder the development of the society as a whole. The marriage, divorce, succession, inheritance, etc. 29 As a
UCC must be brought as an affirmative action as there step toward gender justice, inter alia, the UCC would
&
is a dire need to reform such redundant laws in a promote an egalitarian society.
civilized society.
Uniform Civil code is an affirmative action to

prevent discrimination
L aw
‘LIFE’ AND ‘LIBERTY’ UNDER ART. 21
OF THE CONSTITUTION AND A UCC
of
Art. 21 of the Constitution lays down that no person
Equality between the sexes is included in the in the
shall be deprived of his life and personal liberty except
equality ‘indignity and rights’ of all human beings
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according to the procedure established by law. Art. 21

declared by Art. 1 of the Universal Declaration.22
assures every person right to life and personal liberty. Its
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Also, Art. 16 of the same Declaration23 Stipulates the deprivation shall only be as per the relevant procedure
prescribed in the relevant law, but the procedure has to
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equal marital and family rights of man and woman (of

full age). It was observed by the Hon’ble Supreme Court be fair, just and reasonable. In P. Rathinam30, the Hon’ble
Supreme Court interpreted the term life as, "The right
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in Indra Sawhney 24 that to bring about equality among

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19 Id. 27 Sarala Mudgal v. Union of India, (1995) SCC 3 635.

io
Supra note 13. Id.

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20 28
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21 Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1. 29F. Agnes, “The Hidden Agenda beneath the Rhetoric of
Women’s Rights”, Towards Secular India, Bombay, 1996, p. 1;
nt
22 Universal Declaration of Human Rights, G.A. Res. 217A F. Agnes, “Hindu Men Monogamy and Uniform Civil Code”,
(III), U.N. Doc. A/810 at 71 (1948). XXX(50) Economic and political weekly, 1995, p. 32; B. Karat,
eI
“Uniformity v. Equality”, Frontline, 17 Nov. 1995; A. A.

23 Id. Engineer, Uniform Civil Code: An Indian Perspective, Centre for
the Study of society and secularism, Bombay, August 1995,
Th
24 Indra Sawhney v. Union of India, AIR 2000 SC 498. mimeo; “the Myths on Personal Laws: Facts Against Myths”,
Volume II, Vikas Adhyayan Kendra, September 1995, p. 6.
25 Constituent Assembly Debates, Volume VII, Lok Sabha
Secretariat, Government of India, 23rd Nov. 1948. 30 P. Rathinam v. Union of India, AIR 1994 SC 1844.
26 Jorden Diengdeh vs. S.S. Chopra, AIR 1985 SC 935
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123
to live with human dignity and the same does not triple talaq or even sending a letter mentioning the triple
connote continued drudgery.” It takes within its fold talaq, whereas the wife who seeks divorce has to go to
some of the fine graces of civilisation which makes life court and file a petition which usually takes years to
worth living and that the expanded concept of life would decide.
mean the tradition, culture and heritage of the person
concerned. (2) The Muslim husband need not give any ground for
divorce, he can divorce his wife whimsically or merely
ce
Justice R.M. Sahai in Sarala Mudgal31 opined that: "Ours because he has lost interest in her, whereas a Muslim
is a secular democratic republic. Freedom of religion is the core of wife has to plead some ground for divorce mentioned in
en
our culture. Even the slightest of deviation shakes the social fibre. § 2 of the Dissolution of Muslim Marriages Act, 1939
But religious practices, violative of human rights and dignity and and she has to produce witnesses or documentary
ud
sacerdotal suffocation of essentially civil and material freedoms are evidence in support of that ground, and prove it.
not autonomy but oppression. Therefore, a unified code is
pr
imperative, both, for protection of the oppressed and for promotion The Supreme Court has observed in Arati Durgaram
of national unity and solidarity." Gauda,34
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The right to life guaranteed under the Art 21 embraces "The right to gender equality is intrinsic to the right to life under
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within sweep not only physical existence but the quality Article 21 of the Constitution. The right to life comprehends the
of life. The provisions of personal laws run counter to right to live with dignity. An affront to or the invasion of gender is
&
such a right and hence, it must be held struck down and destructive of the right of every woman to live with dignity."
in view of article 21 of the constitution a UCC should
aw
The Hon’ble Supreme Court observed in Mary Sonia35
be brought which would improve the life of people who
that the legal effect of provision in § 10 of the Indian
have been affected by the domineering personal laws of
Divorce Act, 1869 is to deny a Christian woman a right
L
various religions.32
to get a dissolution of marriage on grounds of desertion
of
Personal Laws are in violation of Art.21 and cruelty even when the marital relationship has
broken irretrievably. § 10 of the Act is violative of Art.21
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The term personal liberty as used in the Art.21 of the since the life of a Christian wife who is compelled to live
rn
constitution has been used as a compendious term to against her will as the wife of a man who hates her,
include within it all those variety of rights of a person cruelly treats her or deserts her will be sub human life
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which go to make up the personal liberty of a man. without dignity and personal liberty.
Liberty of an individual has to be balanced with his
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duties and obligations to his fellow citizens. 33 The It is therefore pertinent to understand that one
retention of personal laws has increasingly infringed the fundamental right of a person may have to co-exist in
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personal liberty of the discriminated. For instance, in the harmony with the exercise of the another fundamental
cases of dissolution of Muslim marriages the women are right of others also with reasonable and valid exercise of
io
discriminated in two ways: power by State in light of the Directive Principles of

nt
State Policy in the interests of social welfare as a whole.36

(1) A Muslim husband can get a divorce immediately
er
without going to court by immediately pronouncing a UCC protects the personal liberty of individuals
nt
eI
31 Supra note 27. 34Arati Durgaram Gauda v. A.P. Tata Metallics Ltd, 2008 (6)
Th
Bom CR 1.
32Confideration of Ex-servicemen Assosciation v. Union of India, AIR
2006 SC 2945. 35 Mary Sonia v. Union of India, ILR 1995 (2) Ker 431.
33 M.C.Mehta v. Union of India, AIR 2003 SC 3469. 36Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj
and Ors. v. State of Gujarat and Ors, AIR 1974 SC 2098.
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124
The uniform civil code, is a positive step wherein the of his choice but also to exhibit this belief and ideas in a
fundamental rights are kept in the forefront while also manner which does not infringe the religious right and
leaving the rituals embodied in the personal laws intact personal freedom of others. 40 Since no fundamental
within the constitutional propriety. This UCC reforms right can be absolute in a modern State, the freedom of
the age old personal laws in conformity with the current religion cannot be absolute. 41 Freedom guaranteed
modernising and integrating tendencies. Traditional under Art 25 of the constitution is such freedom which
personal codes do not accommodate emerging does not encroach upon a similar freedom of other
ce
multicultural realities and aspirations. The increasing persons. The religious freedom guaranteed by Arts. 25
examples of the reformations being made to the Muslim and 26 is intended to be a guide to a community of life
en
personal laws with regard to divorce and other secular and ordain every religion to act according to its cultural
activities in countries like Egypt, Pakistan, Iraq and and social demands to establish an egalitarian social order.
ud
Indonesia are a positive step in protecting the rights of
the people globally. The protection of Arts. 25 and 26 of the constitution is
pr
not limited to matters of doctrine. The extent also to
INTERPLAY BETWEEN FREEDOM OF acts done in furtherance of religion and they contain a
ris
RELIGION AS CONTEMPLATED guarantee for rituals and observances, ceremonies and
UNDER ARTICLE 25 AND UCC modes of worship which are integral parts of the
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religion. Arts. 25 and 26 strike a balance between the
India is a pluralistic society and a country of religions. rigidity of right to religious beliefs and faith and their
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The framers of the constitution thus desired to intrinsic restrictions in matters of religion, religious
introduce the concept of secularism, meaning the state
aw
beliefs and religious practices and the guaranteed
neutrality in the matters of religion. Secularism in India freedom of conscience to commune with his Cosmos
is a mode of aggregation rather than segregation, of Creator and realise his spiritual self.42
L
synthesis rather than separatism, of pluralism rather
of
than dominance.37 Secularism in India means that the Freedom to “Profess, practice and propagate”
State does not identify itself with any particular religion
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religion.38
To profess
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Article 25 of the Indian Constitution secures to every

Freedom of conscience would be meaningless unless it
person, subject to the restrictions to be noted presently,
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were supplemented by the freedom of unhampered

a freedom not only to entertain such religious beliefs, as
expression of spiritual conviction in word and action.
might be approved by his judgment and conscience, but
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Matter of conscience come in contact with the State only

also to exhibit his belief in such outward acts as he
when they become articulate. While freedom of
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thought proper and to propagate or disseminate his

profession means the right of the believer to State his
ideas for the edification of others.39
creed in public, freedom of practice means his right to
io
Under the Constitutional scheme, every person has a

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fundamental right not merely to entertain religious belief

er
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37 Atheist Society of India v. Govt. of A.P., AIR 1992 AP 311.

39Commr.,H.R.E v Lakshmindra, AIR 1954 SC 282; Ratilal
eI
38Dr.Radhakrishnan in Secularism in India (ed. V.K.Sinha) 127 Panchand v State of Bombay, AIR 1954 SC 388; Sri Lakhshmana
(1968); I.L.I Minorities and the Law (1972); Smith, India as a Yatendrulu v. State of A.P., AIR 1996 SC 1414, 1421-1427.
Th
Secular State (1963); Srivatsava, Religious Freeedom in India, ILI

(ed. G.S. Sharma), Secularism: Its Implications for Law and Life in 40 Lily Thomas v. Union of India, AIR 2000 SC 1650.
India (1966); Indian Parliament and Fundamental Rights (TLL);
N.A. Subramaniam, Freedom of Religion, 3 JILI 323 (1961). 41 Govindlalji v. State of Rajasthan, AIR 1963 SC 1638.
42 A.S. Narayana Deekshitulu v. State of A.P., AIR 1996 SC 1765.
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125
give it expression in forms of private and public ceremonies related to religious beliefs of a person. In a
worship.43 broader sense, the UCC does not violate a person’s right
to practice, profess or propagate religion in its true
Freedom of conscience and freedom of profession of a sense.
religion imply a right of the State to active intervention
in the sphere.44 For instance, by the reason of express Essential and secular components of a religion and
provision in expl. 1, profession of religion, in the case of the interference by the State
ce
a Sikh, would include the wearing and carrying of
Kirpans. The Hon’ble Supreme Court has observed in
en
Lakshmindra 50 and Narayana 51 : “religion
To practise is certainly a matter of faith with individuals or communities and
ud
it is not necessarily theistic. There are well known religions in India
While profession denotes expression, practice denotes like Buddhism and Jainism which do not believe in God or in any
the overt performance of religious rites, rituals, forms
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intelligent first cause.”
and ceremonies, including participation in religious
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processions and assemblies and worship.45 The person The Hon’ble Supreme Court in a catena of cases52 while
may carry on worship or partake in a worship carried on explaining the Scope of Art. 25 “the protection under
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by others. 46 ‘A practice’ to be religious within the Arts. 25 & 26 extends a guarantee for rituals and
meaning of Art. 25(1) need not be adopted by all observances, ceremonies and modes of worship which
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members of the religion and it cannot be denied if it is are integral part of religion and as to what really
shown to be performed as an article of faith by a constitutes an essential part of religion or religious
aw
religious denomination. practice has to be decided by the courts with reference
to the doctrine of a particular religion or practices
To propagate
L
regarded as parts of religion. The essential parts of a
religion must be construed after excluding the secular and
of
The freedom to act in the exercise of one’s religious
superstitious practices. 53 Hence, any piece of legislation
belief includes the freedom to propagate that belief for
which legislates on secular and superstitious subject is to
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the education of others,47 without hindrance from any

that extent not void.
other individual or the State, except that it must not
rn
transgress the limits imposed by the State to preserve The Bible itself reveals those doctrines that are essential
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public order, safety and morals. The word propagate to the Christian faith. They are 1) the Deity of Christ; 2)
means to transmit or spread one’s religion by an Salvation by Grace; 3) Resurrection of Christ; 4) the
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exposition of its tenets.48 It means “Spread and promote

(an idea, theory, etc.) widely.”49 The Uniform civil code
na
in no ways acts as an impediment to performance of any

io
Commr., H.R.E v. Lakshmindra, AIR 1954 SC 282; Durgha https://en.oxforddictionaries.com/definition/propagate

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43
Committee v. Hussain, AIR 1961 SC 1402(1414). (last visited Sep 9, 2018).

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44 Ratilal Panchand v State of Bombay, AIR 1954 SC 388. 50 Commr., H.R.E v. Lakshmindra, AIR 1954 SC 282.
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45 Shrirur Mutt v. Commr., (1952) 1 MLJ 557(587). 51 Narayana v. State of A.P., AIR 1996 SC 1765.
eI
46 Narendra v. State of Gujarat, AIR 1974 SC 2098. 52N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106;
Narayana v. State of A.P., AIR 1996 SC 1765; Ratilal Panchand v
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47 Supra note 44. State of Bombay, AIR 1954 SC 388; Commr., H.R.E v
Lakshmindra, AIR 1954 SC 282.
48 Rev. Stainislaus v. State of M.P., AIR 1977 SC 908.
53Durga Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC
propagate | Definition of propagate in English by Oxford
49 1402; S.P. Mittal v. Union of India, AIR 1983 SC 1.
Dictionaries, Oxford Dictionaries | English,
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126
gospel; and 5) monotheism. These are the doctrines the observed Avtar Singh58 and in a plethora of cases59 that
Bible says are necessary.54 management of property attached to a religious
institution or endowment is a secular activity which can
Hinduism believes in idol worship, reincarnation, be regulated by the State. The Hon’ble Supreme Court
karma, dharma and moksha. The Five Pillars of Islam has summed up upon this issue in Sri Jagannath 60 :
are five basic acts in Islam, considered mandatory by “Although the State cannot interfere with freedom of a person to
believers and are the foundation of Muslim life. They profess, practice and propagate his religion, the State, however, can
ce
are summarized in the famous hadith of Gabriel. They control the secular matters connected with religion. All the activities
are (i) Shahada (Faith); (ii) Salat (Prayer); (iii) Zakāt in or connected with a temple are not religious activities.”
en
(Charity); (iv) Sawm (Fasting); (iv) Hajj (Pilgrimage to
Mecca). The Shia and Sunni both agree on the essential An instance of a secular practice which can be
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details for the performance and practice of these acts.55 regulated by the state: Marriage
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The above propositions clearly portray that act which is The institution of marriage is one of the sound social
not an essentially mandated by the religious doctrines institutions to bring in the harmony and integration in
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will not constitute the essential or integral part of that social fabric. The approach in reconciling diverse
religion.56 practices, customs and traditions of the marriages as one
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of the means for social and national unity and integrity
State has the power to regulate secular activities and establishment of Indian culture for harmony, amity
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and self-respect to the individuals, is the encouragement
The expression ‘personal laws’ is neither synonymous
to inter-caste, inter sect, inter-religion marriage from
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nor co-extensive with the religion. All that is included in
inter-region. The purposive interpretation therefore
the scriptures may not form the essence of a religion or
would pave way to establish secularism and a secular
the essential for the spiritual upliftment of man. Under Art.
L
State.61 In Javed62 it was observed that though polygamy
25(2) (a) of the Constitution the State is empowered to
of
was permitted in Islam, it does not imply that the same
regulate secular activities associated with religious
has obtained the sanction of the religion and it could be
practices. What the State can regulate under Art. 25(2)
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regulated in the interest of social welfare and reform.

(a) are the activities which are really of an economic,
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commercial or political character though these may be It was opined in Marriage, succession and like matters
associated with religious practices.57 of a secular character cannot be brought within the
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guarantee enshrined under Article 25, 26 and 27. The

A distinction has to be drawn with regard to the
personal of the Hindus such as relating to marriage,
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activities that is sought to be regulated since what is

succession and the like have all a sacramental origin in
religious cannot be regulated. In addition, it is also
na
the same manner as in the case of the Muslims or the

pertinent to distinguish between the essential and the
Christians. The Hindus along with Sikhs, Buddhists and
integral part of religion in question. In this regard, it was
io
nt
54 https://carm.org/essential-doctrines-of-christianity 58 Avtar Singh v. State of J&K, AIR 1977 J&K 4.

er
55 "Pillars of Islam". Encyclopædia Britannica Online. 59H.B. Singh v. T.N.H. Ongbi Bhani Devi, AIR 1959 Man. 20;
Retrieved 2007-05-02. "Pillars of Islam". Oxford Centre for Bira Kishore Deb v. State of Orissa, AIR 1964 SC 1501; Commr.,
nt
Islamic Studies. United Kingdom: Oxford University. H.R.E v Lakshmindra, AIR 1954 SC 282.
Retrieved 2010-11-17. "Five Pillars". United Kingdom: Public
eI
Broadcasting Service (PBS). Retrieved 2010-11-17. "The Five 60Sri Jagannath Temple Puri Management Committee v. Chintamani,
Pillars of Islam". Canada: University of Calgary. Retrieved (1997) 8 SCC 422.
Th
2010-11-17.
61 Valasamma Paul v. Cochin University, AIR 1996 SC 1011.
56Mohammed Hanif Qureshi v. State of Bihar, AIR 1958 SC 731;
State of W.B. v. Ashuthosh Lahiri, AIR 1995 SC 464. 62 Javed v. State of Haryana, AIR 2003 SC 3057.
57 Ratilal Panchand Gandhi v. State of Bombay, AIR 1954 SC 388.
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127
Jains have forsaken their sentiments in the cause of the laws to remove the social evils and to promote social
national unity and integration, some other communities reform in India.
would not, though the Constitution enjoins the
establishment of a "common civil code" for the whole Any custom or usage cannot be countenanced as a
of India. 63 From the arguments made so far, it is source of law to claim any right when it is found to be
understood that marriage, succession and like matters of violative of human rights, dignity, social equality and the
a secular character cannot be brought within the specific mandate of the constitution and the law made
ce
guarantee enshrined under Art. 25 and 26.64 by the Parliament. No usage which is found to be
pernicious and considered to be in derogation of the law
en
CONCLUSION of the land or opposed to public policy or social decency
can be accepted or upheld.68
ud
Personal laws were adopted by the British during their
rule in India to ‘Divide and rule’ and to disintegrate Personal laws were seen as a necessary evil by the
pr
Hindu-Muslim communities. The Personal laws are constitutional makers to prevent clashes between
nothing but the relic of the ‘Two Nation Theory’ which different religious groups. But, as the society and
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was carved out to separate the nation based on religion. civilisation progressed gender justice has taken over the
anarchical personal laws. Such progress can only be
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UCC steps forward as a positive step towards enhanced by enacting a Uniform Civil Code.
preventing discrimination. Arts. 14, 15 & 16 together
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form part of the same constitutional code of guarantee
of equality and supplement each other.65 Personal laws
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are discriminatory on the grounds of sex, etc. of the
person and through the enactment of a UCC, such
L
discriminatory laws can be handled in the right manner
of
and disposed of.
Social reform as contemplated under Art. 25(2)(b)

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means the eradication of practices or dogmas which

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stand in the way of the country’s progress as a whole but

do not form the essence of a religion. Thus, the state
ou
may prohibit bigamy66 amongst the Hindus or give equal

rights to Muslim women in the matter of inheritance or
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divorce which they have not got under their personal

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laws.67
The Prohibition of Child Marriage Act, 2006, Sati

io
(Prevention) Act, 1987 and The Muslim Women

nt
(Protection of Rights on Divorce) Act 1986 are all

instances of legislations which reformed the personal
er
nt
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63Ahmedabad Women’s Action Group v. Union of India, (1997) 3 66 Narasu Appa Mali v. State of Bombay, AIR 1952 SC 84.
SCC 573.
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67 Khatji v. Abdul, AIR 1977 J & K 44.

64 Sarala Mudgal v. Union of India, (1995) SCC 3 635; John
Vallamattam v Union of India, AIR 2003 SC 2902; Ramprasad v. 68N. Adithayan v. Travancore Dewaswom Board, AIR 2002 SC
State of U.P., AIR 1957 All 411. 3538.
65 State of Madras v. Champakam, AIR 1951 SC 226
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128
ENVIRONMENTAL REFUGEES: A CASE STUDY ON

INDIA-BANGLADESH CLIMATIC MIGRATION
BHAWNA NANDA
ce
INTRODUCTION activities. In common parlance, one would use the term
“refugee” to mean a person who has fled his home
en
The term “environmental refugees” was first coined in country due to a threat to his life, but the term
1985 as a report title for the United Nations “environmental refugee” appears to be alien to the
ud
Environment Programme. It has since been widely general population. The reason for the same is the novel
diffused in both political and academic circles 1 . This nature of the term.
pr
growing concern of the international community about
Internationally, refugees are granted certain protections
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the consequences of migration resulting from
environmental deterioration was reinforced in 1990 by under the Convention Relating to the Status of
Refugees, 1951 [“CRSR”]5 and the Protocol Relating to
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the publication of the first UN intergovernmental report
on climate change which stated that Status of Refugees [“PRSR”].6 Article 1(A)(2) of these
conventions provide that a person is a refugee if he/she
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"The gravest effects of climate change may be those on human is fleeing persecution from their home country on
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migration as millions will be displaced"2. grounds of race, nationality, religion etc. and only the
fulfilment of these grounds entitle a person to attain
A widespread view that is gaining ground is that climate
refugee status, thereby availing the privileges that come
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related migration could evolve into a global crisis by
with it.
of
displacing a large number of people from their homes
and forcing them to flee. It is postulated that a billion REFUGEE UNDER INTERNATIONAL
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people could be permanently displaced by climate LAW: REVISITING HISTORY AND

change related phenomenon such as droughts, floods
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UNDERSTANDING THE PRESENT

and hurricanes. 3 The fourth assessment report of the
ou
Intergovernmental Panel on Climate Change (IPCC) 4 A refugee in the most primitive form was referred to as
mentioned the “potential for population migration” is someone who flees due to fear of persecution or is
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due to increase in the number of areas affected by expelled from his country and seeks asylum in a
droughts and an increase in the intense tropical cyclones different country.7 The history of refugees goes back to
na
io
1 Castles, Stephen 2002 Environmental change and forced Report of the Intergovernmental Panel on Climate Change
migration: making sense of the debate New Issues in Refugee
nt
(Cambridge, UK: Cambridge University Press), 7-22, p 18.

Research - UNHCR Working Paper 70 5United Nations Convention Relating to the Status of Refugees,
2 Intergovernmental Panel on Climate Change 1990
er
Jul. 28, 1951, 189 U.N.T.S. 150 (adopted on July 28, 1951 by the
Policymakers' summary of the potential impacts of climate
change (Report from Working Groupe II to IPCC) IPCC - U.N. Conf. of Plenipotentiaries on the Status of Refugees &
nt
Secretariat, Geneva — 2007a Climate Change 2007: Impacts, Stateless Persons convened under U.N.G.A. Res. 429 (V) (Dec.
Adaptation and Vulnerability - Summary for Policymakers IPCC 14, 1950)entered into force Apr. 22, 1954)[hereinafter Refugee
eI
- Secretariat, Geneva Convention].

3 Christian Aid (2007): “Human Tide: The Real Migration Crisis” 6 United Nations Protocol Relating to Status of Refugees, Jan.
Th
(London: Christian Aid), www.christianaid. 31, 1967, 606 U.N.T.S. 267 (adopted by U.N.G.A. Res. 2198
org.uk/Images/human_tide3__tcm15-23335.pdf.
4 Intergovernmental Panel on Climate Change (2007): (XXI) (Dec. 16, 1966) entered into force Oct. 4, 1967)
[hereinafter Refugee Protocol].
“Summary for Policymakers” in M L Parry, O F Canziani, J P
Palutikof, P J van der Linden and C E Hanson (ed.), Climate 7 BLACK’S LAW DICTIONARY 1306 (Bryan A. Garner, 8th
Change 2007: Impacts, Adaptation and Vulnerability. ed., 2004).
Contribution of Working Group II to the Fourth Assessment
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129
the medieval era wherein the Church performed the Paris agreement (cop21)11
function of granting protection to individuals who had
been persecuted in their home countries. Then, in the This International Agreement takes note of migration
post medieval and modern times, these individuals were and seeks to establish a “task force” to “develop
termed as refugees by the League of Nations High recommendations”. However, the deeply political
Commission for Refugees in 1921.8 Later, the regulating nature of the issue forced the parties to avoid any legally-
body for refugees i.e. the United Nations High binding obligations. The Pacific Island countries’ clarion
ce
Commissioner for Refugees [“UNHCR”] was call to create a “coordination facility” for managing
established by the General Assembly, which worked in climate refugees was eventually struck down and
en
collaboration with countries to formulate and draft the removed from the final draft of the agreement. Their
CRSR and the PRSR. biggest neighbor in the region, Australia, helped defeat
ud
the proposal. First of all, international law does not
The two conventions defined a “refugee” as a person recognize “environmental refugees”. Therefore, the law
pr
who flees persecution from his home country on itself has to be changed first, in order to fit
grounds of race, religion, nationality etc. 9 The “environmental refugees” into an expanded legal
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convention when drafted was primarily directed towards definition of a refugee. 12 Individual countries could take
catering to the European refugees facing the wrath of such progressive steps, but at a time when migration is
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the second world war and was hence short-sighted. Its being looked at so negatively through the prism of (in)
main objective was to provide protection to these security, as a security threat an internationally
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migrants and to ensure the adherence to their human coordinated policy can be considered nothing less than
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rights as required by the Universal Declaration of a mirage.13
Human Rights [“UDHR”].8 it placed an obligation on
every State to admit persons who fulfil a criterion under THE EMERGENCE OF
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the convention as a refugee in their territory and fulfil ENVIRONMENTAL REFUGEES
of
their basic human rights.
Even though there are numerous Conventions on
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The convention was successful in achieving its purpose refugees, none of them grant protection to people
for a decade or so but, could not keep up with the fleeing their home State due to environmental disasters.
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dynamism persistent in the international scenario. The However, multiple jurists came up with the demand of
major area wherein this lack of dynamism in the expanding the meaning of the term persecution on
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conventions was observed was in its criteria of grounds that the same was outdated and needed
modification, 14 as the reasons for displacement today
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persecution. When the conventions were drafted the

meaning of persecution was restricted to treatment that are more complex and permanent 15 as compared to
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was violent, cruel on grounds of religion and race,10 as those envisaged under the Convention. They contended
such kind of treatment was common during the world that a person, who has no water from drought, has no
io
wars and was the primary reason why people fled their
nt
countries.
er
nt
8 James E. Hassell, Russian Refugees in France and the United 12 Samaddar, Ranabir(1999), The Marginal Nation: Transborder
States, 81 American Philosophical Society 96 (1991). Migration from Bangladesh to West Bengal, New Delhi: Sage
eI
9 Refugee Convention, Supra Note 3, At Art. 1. Publications, pp. 131-138.

10 Briefing Paper: Refugees And The Third World, (Overseas 13 Hazarika, Sanjoy (2002), “Illegal Migration from Bangladesh:
Th
Development Institute: London 1983) Available At Problem and Long Term Perspective”, Dialogue, 3 (3): pp. 25-
Https://Www.Odi.Org/Sites/Odi.Org.Uk/Files/Odi- 26.
Assets/Publications-Opinion-Files/6678.Pdf. 14 Rv Anuradha, On A Displaced Person, 6 Stud. Adv. 52 (1994)
11 2015 United Nations Climate Change Conference (“COP21”) [Hereinafter Displaced Person].
held in Paris 15 Nesrin Algan, Transboundary Population Movements:
Refugees, Environment And Politics, 75 Turkish Yearbook Of

International Relations 2 (1998).
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130
food due to flooding, is left with no choice but to flee.16 the Specific Aspects of Refugee Problems in Africa 26
Hence, grounds of natural disasters like famine and and the Cartagena Declaration.27
drought were suggested to be included in the definition
of refugee,17 following a rights oriented approach,18 i.e. This problem has been answered with a four step test
the rights under ICCPR, CESCR. 19A term identifying laid down by Professor Irene Khan, that states a person is
these people was coined by Prof. Lester Brown, 20 who qualified as an environmental refugee if he or she by
termed them as environmental refugees, signifying
a. voluntary movement
ce
people that are forced to leave their home due to
changes in the environment around them, b. crosses international boundary
en
compromising their well-being and livelihood. The
presence of these refugees became so widespread that c. due to a rapid trigger
ud
as per the Internal Displacement Monitoring Centre
d. which is linked to climate change.28
[“IDMC”], one out of two displaced persons was so by
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virtue of a disaster, and an average of 22.5 million had Also, it is mandated that such migration should
ris
been displaced in the world due to the same.21 Despite necessarily have environmental reason as the main
such daunting figures, the issue of environmental factor for the flight, 29 any sort of politicization and
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refugees did not receive any attention from the States.22 corruption was held not to be environmentally
However it did receive recognition from the UNHCR.23 induced 30 and was not protected under migration
&
management regimes.31Following the same, the refugees
With the passage of time not just the UNHCR, but even
who migrated from Liberia during the civil war were not
aw
the European Commission [“EC”], has agreed on the
termed as environmental refugees due to lack of a direct
impact of climate change on human migration and
connection between the war and deforestation (an
termed it as a “crisis in the making”,24 thereby calling for
L
outcome of climate change).31
an academic inquiry on the same.25 Today, such a broad
of
definition stands accepted by Convention Governing
al
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16 Adrienne Millbank, The Problem With The 1951 Refugee Conference On Environment And Development (Unced), Rio
Convention, (Parliament Of Australia: 2000-01) De Janeiro 2 (June 10, 1992).
ou
Availableathttp://Www.Aph.Gov.Au/About_Parliament/Parli 25 James Hollifield, Idean Salehyan, Environmental Refugees,
amentary_Departments/Parliamentary_Library/Pubs/Rp/Rp0 Wilson Centre (Dec. 21, 2015) 4available At

001/01rp05. Https://Www.Wilsoncenter.Org/Article/Environmental-
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17 Gary Gardner, Tom Prugh, State Of The World 2015: Refugees#Sthash.En1wv3ls.Dpuf.

Confronting Hidden Threats To Sustainability, 118 (The World 26 James Mc Adam, Climate Change, Forced Migration And
na
Watch Institute: 2015). International Law, 15 (2012).

18 Seminar On Refugees, Supra Note 12. 27 Oau Convention Governing The Specific Aspects Of
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19 Displaced Person, Supra Note 13. Refugee Problems In Africa, Adopted On Sept. 10, 1969
20 International Covenant On Economic, Social, And Cultural By The Assembly Of Heads Of State And Government,
nt
Rights, Ga Res. 2200a (Xxi), Dec. 16, , 999 Cab/Leg/24.3 (Entered Into Force On June 20, 1974) Art.1.
U.N.T.S. 171 At Art. 11 28 Cartagena Declaration On Refugees, Colloquium On The
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21 Lester R.Brown, Twenty-Two Dimensions Of The Population International Protection Of Refugees In Central
Problem, 102 (1976). America, Mexico And Panama, In Cartagena, Colombia, 19-22
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22 U.N.H.C.R., Climate Change And Disasters, (Dec. 14, 2009) Nov. 1984, Concl. Iii, 5, Reprinted In 2 Unhcr, Collection Of
Available At Http://Www.Unhcr.Org/Climate-Changeand- International Instruments And Other Legal Texts Concerning
eI
Disasters.Html [Hereinafter Climate Change Unhcr]. Refugees And

23 Stefan Lovgren, Climate Change Creating Millions Of "Eco Displaced Persons 206, 208 (1995).
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Refugees," Un Warns, Nat. Geog. News (Nov. 18, 2005) 29 Irene Khan, The Unheard Truth: Poverty And Human
Available At Rights, 15 (1st Ed., 2009).

Http://News.Nationalgeographic.Com/News/2005/11/1118_ 30 Id.
051118_Disaster_Refugee_2.Html. 31 Anna Lindley, Questioning Drought Displacement:

24 United Nations High Commissioner For Refugees (Unhcr), Environment, Politics, And Migration In Somalia, 45 Fmr 39
Statement By Sadako Ogata, United Nations High (2014) Available At
Commissioner For Refugees, At The United Nations http://www.fmreview.org/crisis/lindley.html.
*
131
recommendation was written to the Chief justice of has been made more friendly and easy, character of the
India. victim is irrelevant for consideration, presumption of no
consent where sexual intercourse is proved and the
In her entire history India would not have witnessed the victim states in the court that there has been no consent,
kind of upsurge we witnessed in the aftermath of etc. The age of consent has been increased to 18 years,
December 16 gangrape in a moving bus and killing of a which means any sexual activity irrespective of presence
23-year-old woman in New Delhi. The unfortunate of consent with a woman below the age of 18 will
ce
incident gave a platform for an inclusive debate for constitute statutory rape.
better laws and greater gender sensitivity.
en
Keeping in mind the International Covenant on
In view of the recommendations of the Law Economic, Social, and Cultural Rights 1966 and the UN
ud
Commission the Indian Parliament introduced the Declaration of Basic Principles of Justice for Victims of
Criminal Law (Amendment) Bill, 2013. It provides for Crime and Abuse of Power 1985, the apex court said,
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amendment of IPC, Indian Evidence Act, and Code of rape survivors are entitled to legal recourse that does not
Criminal Procedure, 1973 on laws related to sexual re-traumatize them or violate their physical or mental
ris
offences. The offence of rape under Section 375 of IPC, integrity and dignity.
have made both penile and non-penile insertion into
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bodily orifices of a woman by a man an offence.14 The Associated with the issue of what constitutes consent is
section has also clarified that penetration means that of proving consent. Often there is the probability
&
“penetration to any extent,” and lack of physical that the woman did not consent, but legal proof is not
resistance is immaterial for constituting an offence.15 available. The woman may be physically too weak or
In Rameshwar v. State of Rajasthan16, it was held by the

High Court that guilt of the accused can be proved by
L aw
mentally too dazed to resist and the peculiarity of rape
is that there are no witnesses except the victim herself.
Proof of offence primarily depends upon the credibility
the evidence of the victim which can be legally
of
of the victim. Bruises, scratches or other marks of
corroborated by an accomplice of the victim. Many a struggle may constitute evidence but that would be a
time, apart from the testimony of the rape victim,
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"feeble" evidence of want of consent.

evidence of close relations (say for example, mother) or
rn
of a close friend or teacher to whom the rape victim PROBLEMS FACED BY RAPE VICTIMS
narrated the incident is relied on by the prosecution as
ou
evidence of conduct or for corroboration. In Brahma The following are the problems faced by rape victims: -
Swaroop and another vs. State of U.P.17 which was not a case
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of rape, the Supreme Court indicated that the  Deprivation of right to life and personal liberty,

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relationship of the witnesses to the party or parties is not They are often forced to undergo uncomfortable
a factor which affects the credibility of the witness and procedures and inquiries both inside the court as
io
a relation would not conceal the actual culprit and make well as from the people outside,
an allegation against an innocent person.  Ostracized by the society and at times, prohibited
nt
from right to education as well,

Certain changes have been introduced in the CrPC, 1973
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 Exploitation by media and the people concerned by

and IEA, like the recording of statement of the victim making her a public figure,
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14 The definition is broadly explained in some aspect, with acts extend to imprisonment for life, and shall also be liable to fine.
like penetration of penis, or any object or any part of body to In aggravated situations, punishment will be rigorous
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any extent, into the vagina, mouth, urethra, or anus of a imprisonment for a term, which shall not be less than 10 years
woman or making her to do so with another person or but which may extend to imprisonment for life, and shall also
applying of mouth to sexual organs (Cunnilingus or fellatio) be liable to fine.
without the consent or will of the woman constitutes the 16 1952 AIR 54, 1952 SCR 377.
offence of rape. 17 Criminal Appeal No. 1235 Of 2005.

15 Exception: In certain aggravated situations, the punishment
will be imprisonment for not less than 7 years but which may
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29
 Interference of various political parties into the  Police officers should be made duty bound to assist
matter or changing it as a political issue, victims of sexual offences irrespective of the crime’s
 Deprivation of the victim from certain rehabilitative jurisdiction.
and aftercare treatment,  Members of the public who help the victims should
 Delay in the trail proceedings which results in delay not be treated as wrong doers.
in delivering justice,  Community policing should be developed by
 Delay on the part of investigating agency in finding providing training to volunteers. This is practised in
ce
out the real culprits. a lot many countries.

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Sex education must be given importance at the
RECOMMENDATIONS school level since it instills a sense of gender
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equality and respect for the opposite gender.
Justice Verma Committee was constituted in the year
Importance must also be given to Adult literacy
2013 in order to recommend amendments to the
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programs as they are necessary for gender
Criminal Law so as to provide for quicker trial and
empowerment.
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enhanced punishment for criminals accused of
 Since death penalty in today’s world holds very little
committing sexual offences against women. The
deterrent effect on the hardened criminals in serious
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Committee submitted its report on January 23, 2013.
crimes it should be replaced with life imprisonment
But most of these suggestions have failed to see the light
coupled with compulsory community services
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of the day.
under a close watch by the prison officials.

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The Committee recommended the amendment of the The humiliating ‘two-finger test’ must be
Representation of People Act, 1951. Currently, the Act discontinued. The two-finger test and its
provides for disqualification of candidates for crimes interpretation violates the right of rape survivors to
L
related to terrorism, untouchability, secularism, fairness privacy, physical and mental integrity and dignity.
of
of elections, sati and dowry. It further recommended Thus, this test, even if the report is affirmative,
that candidates should be disqualified for committing cannot ipso facto, be given rise to presumption of
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sexual offences. consent”.

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 The Armed Forces (Special Powers) Act, 1958 must

The Committee has recommended that the terms ‘harm’ be amended so that no sanction is needed for
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and ‘health’ be defined under the Juvenile Justice Act, prosecuting an armed force personnel accused of a
2000 to include mental and physical harm and health, crime against woman.
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respectively, of the juvenile.

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OTHER SUGGESTIONS
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 The most important suggestion being that any

inappropriate physical act done with an intention of
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causing discomfort to the other party must be

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punished or duly recognized in the Criminal Law

statutes.
nt
 A Rape Crisis Cell should be set up. The Cell

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should be immediately notified when an FIR in

relation to sexual assault is made. The Cell must
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provide legal assistance to the victim in receiving

justice.
 All police personnel must be sensitized about ways
of dealing with victims of such offences in order to
ensure their safety.
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30
THE CONCEPT OF SIMULTANEOUS ELECTION IN THE

LIGHT OF FEDERALISM & MULTI-PARTY SYSTEM
JAYANTA CHAKRABORTY
ce
INTRODUCTION multiple occasions and hence their role in federalism is
widely acknowledged.
en
The character of Indian polity is federal in nature.
Although the term federation or federal has not been Talking of elections, 1967 was a changing point in
ud
mentioned anywhere in the constitution, yet the Indian political scenario because up until 1967 the
constituent assembly debates, division of legislative elections to the House of People and elections to the
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powers between the Union and the States and the clear Legislative Assembly of the states happened
demarcation of the Union and State executive powers simultaneously. But the results of 167, which we shall
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clearly outline the federal nature of our constitution. deal with later changed the scenario in most of the states
K.C.Wheare while talking of federalism in India has and state elections took place randomly as stable
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defined the Indian state as a “Unitary state with governments were not present in the states. Since 1967
subsidiary federal features.”1 the harmonization of elections in India came to an end.
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But recently the Narendra Modi led NDA government
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The roots of federalism in India have been deepened by which came to power in 2014 has started pitching the
the presence of the different political parties cutting idea of simultaneous elections at the Union and State
across states, religion, language and caste. Unlike level citing the excuse of expenditure and time. 2
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America which is a bi-party system, India has adopted
of
the British system of multi parties. The various political It is therefore debated in the following parts of this work
parties present in India in different states are important that how this idea of conducting simultaneous elections
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not only to raise the concerns of their respective states is against the idea of federalism and multi-party system
rn
but also to ensure that the governance at the Union level in India. The first chapter shall deal with the concept of
is not Delhi oriented only but rather been delivered to simultaneous elections and tracing the developments up
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every corner of the nation. to 1967 and what broke the simultaneous election trends
in India. The second chapter shall deal with the concept
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Elections play a very important role in nurturing the of federalism and the role of elections therein while the
multi-party culture in India. If we take a look at the third chapter shall discuss the concept of multi-party
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election history in India we see that since 1967 the system in India and showcase how the idea of
regional parties started playing a big role in Indian simultaneous elections is an attempt to diminish the
io
politics especially in the state level with the weakening importance of the regional parties by stamping the
nt
of the Congress party and how since then in most of the authorities of national parties over them.
states, the regional parties formed their government.
er
Not only at the state level, the regional parties played a SIMULTANEOUS ELECTIONS IN
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decisive role in the Union level as well since for a long INDIA- MEANING, HISTORY AND
time India lacked a stable government at the Centre as SCOPE
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the two main parties of India failed to get absolute

majority. The regional parties became the king maker in India gained independence on 19th August, 1947 from
Th
the British Rule. The constitution assembly of India

drafted the constitution of India which was adopted on
1K.C.WHEARE, FEDERAL GOVERNMENT, London; 2BJP provides its CMs with action plan to promote simultaneous polls,
New York: H. Milford; Oxford University Press, 1946. Hindustan Times, February 22, 2018.
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31
developmental path of the county. The general aim is to ecosystem and enable to sustains ecological
intervening priority of socio-economic development resilience’s in Himalayan region.
and poverty eradication and also concern on
environmental and ecological balance. It is recognizing 4. National Mission for Sustainable Agriculture- The
that climate change is one of the global challenges for all main aims is to focuses on Integrated/composite
country. Recently, India has actively participated and measure of soil, water and moisture conservations,
involved particularly in multilateral negotiations in the macro and micro nutrients, use of judicious
ce
United Nation Framework on Climate Change fertilizer and use of rain fed technology.
(UNFCC) in to the looking manner of very positive and
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5. National Water Missions- This mission aims is to
constructive. 59 The main aim is to build a very effective,
assure conservation of water resource and
cooperative and equitable global approach. It is based
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management, minimize wastage and equitable water
on the general principle but distinguished respective
distribution both across and within the state.
responsibility and capacities that preserved by the UN
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Framework Convention on Climate Change (UNFCC). 6. National Solar Mission- Aim is to set up India as a
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global leader in buildup solar energy, it is creating
The Prime Minister’s Council has launched on National
policy that enable to achieved more affordable and
Action Plan on Climate Change (NAPCC) to dealing
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solar energy at long term storage to use of
with the climate change challenges in 2008. This plan is
convenient solar power system.
based on the advance and use of the new technology to
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protect from climate change. It would be 7. National Mission for Enhance Energy Efficiency-
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implementation through appropriate institutional This mission aims to carrying out of energy
mechanisms by more affective delivery to each and efficiency through strengthen of market by
every objective of the mission’s through includes of regulatory and conductive policy regime.
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public private partnership and civil society action. This
of
mission will be more focused to build up awareness to 8. National Solar Mission- Aim is to set up India as a
understanding of climate change risk, adaptation, global leader in buildup solar energy, it is creating
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mitigation, and also efficiency of energy, and policy that enable to achieved more affordable and
solar energy at long term storage to use of
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conservation of natural resources.

convenient solar power system.
1. National Mission on Strategic Knowledge of
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Climate Change- The mission seeks to establish RECOMMENDATIONS

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networking system that would provide information

to take national action for create capacity building “The earth has enough resources to meet people’s needs, but will
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and effectively responding to the aims of never have enough to satisfy people’s greed. Thus we must not only
ecologically sustainable development. promote sustainable production processes, but equally, sustainable
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lifestyles across the globe”

2. National Mission for “Green India”- Aims to - M.K. Gandhi
nt
protecting, restoring, and enhancing the degrading

These trans-border and human inflicted environmental
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forest cover and recognized for take action to

changes have resulted in the loss of the sources of living
mitigation and adaptation of climate change.
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for a huge number of the population of Bangladesh.

3. National Mission for Sustaining the Himalayan Recently the proposed Tipaimukh dam by India has
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Ecosystem- This mission aims to implements of faced severe criticism of the Bangladeshi people. India
time bound action programme to continuous is also unwilling to sign an agreement for sharing water
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provision for assess the health status of the in Tista River. On the other hand, water diversion of
rivers by India is one of the causes for environmental
59Dasgupta, S, B Laplante, S Murray and D Wheeler (2009): Impacts in Developing Countries”, Policy Research Working
“Sea-level Rise and Storm Surges: A Comparative Analysis of Paper No 4901, World Bank.
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135
degradation in Bangladesh and consequential migration the attitude of India regarding migration and
to India. Environmental migration to India from consequent conflict with Bangladesh needs a
Bangladesh has not only precedents of deteriorating gradual change, and at the same time, the BSF
relationship between these two friendly states but also should exercise restraint in dealing with the
closely linked with internal ethno-religious and migrants;
communal tensions and violence in India. Therefore,
policies are needed to address this complex situation to CONCLUSION
ce
save Bangladesh and also to resolve the migration
“The world will have over 50 million refugees by the year 2020.”
problem between the two countries. Considering the
en
–Ban Ki Moon (Former Secretary General, United Nations)60
issue as a complex and critical phenomenon, few
recommendations are given here to resolve the issue of Environmentally induced migration is a major problem
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environmental destruction and improve bilateral for the receiving country which has attracted the
relations between both the countries: proportionate attention of policymakers, researchers and political
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share to keep the environment sustainable for leaders.
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livelihood. In this regard, India as a powerful state in
the South Asian region, and most trusted and friendly Environmentally induced migration is a major problem
for the receiving country which has attracted the
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state need to abide by the international law and law of
nature in utilizing, the water of common rivers so that attention of policymakers, researchers and political
leaders. Climate change is likely to expose hundreds of
&
Bangladesh, as a small neighboring state, can sustain and
feed its densely populated inhabitants. millions of people to increasing environmental risks
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displacing a large number of people and forcing them to
 Proportionate share to keep the environment migrate. There is an emerging view that these people
sustainable for livelihood. In this regard, India as a should be recognized as climate refugees by
L
powerful state in the South Asian region and most international laws and proper institutional arrangements
of
trusted and friendly state need to abide by the should be made to address their problems. However,
international law and law of nature in utilizing, the there are still significant gaps in several areas.
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water of common rivers so that Bangladesh, as a

1. The international community is yet to recognize
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small neighboring state, can sustain and feed its

densely populated inhabitants. this new category of migrants. There is no
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consensus on the definition and the status of

 The countries are acute in this region due to climate refugees owing to the distinct meaning the
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geographical proximity and cultural and religious term refugees carry under international law.
similarity. Therefore, a sense of burden sharing
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2. There are still gaps in understanding how climate

needs to grow among the South Asian countries to
change will work as the root cause of migration.
overcome this problem in future from a
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humanitarian perspective. 3. Even if there is recognition of climate refugees,

nt
who is going to take the responsibility to provide

 Growth of population, Land, fresh water and other
protection and assistance.
er
natural resources are being depleted and reduced.

nt
National policies should strike a balance between 4. More emphasis has been given to international
population and natural resources. migration due to climate change. But the people
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may also move to other places within the countries.

 Deforestation, desertification and drought have There is a need to recognize the displacement of
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had a significant impact on migration. Therefore,
60UN Secretary General, In Safety and Dignity: Addressing

Large Movements of Refugees and Migrants: Rep. Of the
SecretaryGeneral, U.N. Doc. A/70/59 (Apr. 21, 2016).
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136
national issue and hence state issue will get lost. This is system, the multiparty system has also become a part of
a very dangerous to the idea of federalism in India. the Indian political order. Before discussing the facets
of multiparty system it is imperative to get an idea about
3. The linguistic and cultural diversity of the states the definition of the political party. Nowhere in
will be undermined constitution have the term political party been
mentioned. The only definition of the term political
The Union of India is based on the very idea of linguistic party can be derived from Section 2(1)(f) of the
and cultural diversity. In India every state exhibits its
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Representation of the People’s Act.18 It defines political
unique diversity. But if simultaneous elections take place party merely as “an association or a body of individual
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in India then such diversities will be undermined. The citizens registered with the Election Commission as a
election campaign will mostly be dominated by the political under Section 29A.”
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National Parties who would give speeches in Hindi and
the voters will be made to focus more on the national As of 2017 there are 7 national Parties viz. the BJP,
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agenda. This will create a sense of homogenization in Congress, Trinamool Congress, Communist Party of
India linguistically and culturally which is a threat to the India, Communist Party of India (Marxist) & Bahujan
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very idea of India which is based on diversity. “Unity in Samaj Party.19
Diversity” is a term often used to explain the various
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diversities in India, but simultaneous elections will play There are 49 state parties functioning across 29 states of
spoilsport to this notion. India as well. Apart from these there are approximately
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1760 unrecognized parties in India which do not fall
4. Union & States have separate legislative powers
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under the either category of state or national party.20
so the elections need to be fought on that basis.
The number of parties during the first election of 1952
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Schedule 7 of our constitution has 3 lists. While List 1 was much less compared to what it is today. Now the
of
enumerates the legislative power of the Union, List 2 importance of discussing the role of multiparty system
and List 3 enumerate the legislative power of the states in India in determining the efficacy of simultaneous
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and the concurrent list. Since the law making issue of elections is that the simultaneous elections is a tool by
the Union and State are different so the elections to their which the presence of multiparty system is trampled and
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legislative assemblies should also be different. A state the national parties fly high their own flag. This
has no role in Defense, Foreign relations or railways. So
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argument can be proved even statistically by the results

talking of these issues in state elections does not make of the 1952, 1957, 1962 & 1967 elections whereby the
any kind of sense. Similarly asking for votes in the Lok
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Congress party not only dominated the Lok Sabha

Sabha elections in the name of bad law and order of the elections but also swept the state elections giving very
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states is also not a wise thing to do. little scope to the regional parties.
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Therefore, in the light of the above arguments it is The following graph highlights the number of states
submitted that the idea of simultaneous elections is
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won by Indian National Congress in those simultaneous

against the spirit of federalism in India. elections.
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MULTIPARTY SYSTEM & In 1952 elections took place in 22 states along with the
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SIMUTANEOUS ELECTIONS Lok Sabha Elections, the figure came down to 13 in

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1957 due to state adjustments and certain mid-term

India is a multiparty parliamentary democratic nation. polls. In 1962 the figure was 21 while in 1967 which was
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Unlike America, we do not follow the practice of having

only 2 parties. Having adopted the British Westminster
Representation of People’s Act, 1951. (Act No. 42 of 1951).

18 20 Ibid.
19Official Website of Election Commission of India,
www.eci.nic.in.
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37
the last overwhelming simultaneous elections, 19 states

polled together. Total States- 31
Statistics of 1952-1967 Simultaneous Elections and BJP Majority
Superiority of the Congress Party.21
6
NDA Majority
12
25 3
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21 Congress
20
20 Majority
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16 9 Others
15 States Won by
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12
Congress
10 States Won by
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Non Congress It is important again to understand the reasons of
5 3 growth of the Regional Parties. As discussed earlier post
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1 1 1 1967 the Congress part started disintegrating and
0 regional factions took the shape of regional parties
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1952 1957 1962 1967
which subsequently became regional parties with strong
hold over the states. Even at the present time in 2018
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So a clear picture can be understood from the chart that regional parties continue to hold almost 12 of the 29
whenever elections to the Centre and state happened states in India and this has been possible mainly because
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simultaneous the party at the Centre got its advantage of the simultaneous elections in India.
and hence the multiparty feature of our constitution
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died a silent death. At the present moment the Bahratiya It is also important to take a look at the various regional
Janata Party is at the power at the Centre and is in power parties that have taken birth due to the disintegration of
of
in 21 states on its own and with ally and therefore we the Congress Party in various states.
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can understand the sense of urgency in the BJP to hold

simultaneous elections. The problem of holding NAME OF THE MAIN REGIONAL PARTY
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simultaneous elections will make our election campaign STATE

culture synonymous to that of United States of America
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where all the states vote together and the election is West Bengal All India Trinamool Congress
about the personality of the President and not about the
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Odisha Biju Janata Dal

state issues. This will be a big blow to our federal
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structure and also the multiparty system.

Bihar Rashtriya Janata Dal, Janata Dal
(United)
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Andhra Pradesh Telegu Desam Party

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Telangana Telangana Rastra Samithi

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Maharashtra Nationalist Congress Party

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Tamil Nadu Dravida Munnethra

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Kazagham, All India Dravida

Munnethra Kazagham
21 Ibid.
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38
victims even if there grievance as not been acknowledge has been used as a tactics by most of the extremist armed
or no allegations of such offence has been received.2 groups. For these perpetrators the objective of using it
as a weapon is to terrorize population, ensuring
When it comes to defining sexual violence it has been given displacement of the entire community from the
in the Akayesu case, the International Criminal Tribunal disputed area and conversion through marriages and
for Rwanda (ICTR) Trial Chamber held that sexual above all this they are ultimately creating and setting up
violence is “any act of a sexual nature which is an ideology based on suppressing women and
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committed on a person under circumstances which are controlling their sexuality and reproductive system by
coercive”.3 The Trial Chamber further held that “sexual laying down that there is always a superiority of men
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violence is not limited to a physical invasion of the over them. Through creating such dominance over
human body and may include acts which do not involve women they generate revenue by trafficking women for
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penetration or even physical contact”4. According to the sexual purposes for prostitution and extracting money
World Health Organization (WHO), sexual violence can from their family which further makes them and their
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be defined as “any sexual act, attempt to obtain a sexual strategies that is creating terror more powerful. Apart
act, unwanted sexual comments or advances, or acts to
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from generating revenue they tend to destroy male,
traffic, or otherwise directed, against a person’s sexuality victim’s community and the pride of entire family and
using coercion, by any person regardless of their
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those men who have failed in their duty to protect their
relationship to the victim, in any setting, including but women from sexual violence are considered to be fragile
not limited to home and work”5 from such a definition
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and humiliated. Herein thereafter sexual violence is
it can be inferred that sexual violence is not only limited treated as a torture fulfilling its legal definition where the
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to physical but also verbal and psychological violence. act of sexual violence leads to women suffering from
But according to Amnesty International there is no sexually transmitted disease and destruction of their
definite definition of what sexual violence comprises of
L reproductive system.
every national jurisdiction has created its own definition
of
of criminal law. 6 The expression 'international armed The crime of sexual violence has been identified as a
conflict' (IAC) describes any engagement of regular strategy to practice genocide. For the punishment of the
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armed forces of one state with the regular armed forces same the genocide convention is drafted to prevent and
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of a foreign state. International armed conflict simply is punish those perpetrators having hatred towards a
an armed conflict between two or more states and community and wants to eradicate the entire community
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occurs when one or more states have recourse to armed they start harming their group members targeting the
forces against another state, regardless of the reasons of most vulnerable members one of them being women,
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the intensity of this confrontation.7 under Article II (d) of the Genocide convention
protection is given to the same. Recognizing sexual
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The major weapon of several extremist groups during violence as a torture gives a scope of prosecuting such
armed conflict is sexual violence amalgamated with an offence against humanity as torture is a well-
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crimes such as killing, forced displacement and arbitrary recognized element for constituting a crime. Another
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detention. Moreover, since 2014 UN Nations has given element of crime against humanity is enslavement which
due recognition to the harsh reality that sexual violence is also connected with sexual violence as this crime
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2 Gloria Gaggioli, “Sexual violence in armed conflicts: A 6 Callamard, Agnes , Monitoring and investigating sexual
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violation of international humanitarian law and human rights violence/ Amnesty International and Codesria Amsterdam :
law. Amnesty International (2000)6.
3 ICTR, Prosecutor v. Jean-Paul Akayesu, Case No. ICTR 96- 7 How is the term 'Armed Conflict' defined in International
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4, Judgment (Trial Chamber), 2 September 1998, Para. 688. Humanitarian Law? International Committee of the Red
Cross (ICRC) Opinion Paper, March 2008 at
4ICTR, Akayesu, ibid note 2, Para. 688. http://www/icrc.org/web/eng/siteegO.nsf/html/armedco
5 World Health Organization (WHO), World Report on nflictarticle- 170308 at page 1. Accessed 1/09/2018.
Violence and Health, ed. Etienne G. Krug, 2002, p. 149.
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139
IMPORTANCE OF DOMAIN NAMES offline world, serves to identify the goods/services

provided by the company.
The domain name gained importance over the years as
business entities realized that Internet could be a It is also important to realize that in the online world,
convenient mode for not only imparting information there can be only one domain name as opposed to the
but also using it for gaining access to a world-wide possibility of two or more trademarks co-existing in
market and selling its products. Naturally, a company different working spheres. For example, might be selling
ce
would prefer its own trademark to be used as domain garments under the mark ‘Garmin’ in India and
name since people recognize the trademark. So, a somebody else might be selling the same product under
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newspaper like Times of India would prefer the same mark maybe in Australia. One can even have
www.timesofindia.com for the purpose of putting its daily ‘Garmin’ registered as trademarks in different countries
ud
version online so that everyone around the world could without affecting the other registrations. Leaving apart
read it. On the other hand, even the readers would legal objections, this arrangement is perfectly possible in
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expect that www.timesofindia.com would contain the the physical world. However, the online world does not
online version of the daily, Times of India rather than, permit such technological arrangement. If one person
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maybe, contain a cartoon feature by some unknown owns www.garmin.com, registration of the same domain
individual or worse, some pornographic material. name by another person is not permissible. One might
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register www.garmin.net or www.garmin.org but cannot
The Supreme Court, in Satyam Infoway Ltd. v. register www.garmin.com. In such a situation one might
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Sifynet Solutions (P) Ltd.1, observed as under: conclude that the domain names have a higher degree
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of importance than the trade mark. Even though one
“The original role of a domain name was no doubt to provide an
might be using the trademark ‘Garmins’ somewhere else
address for computers on the Internet. But the Internet has
in the world but it is not affecting one’s business in
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developed from a mere means of communication to a mode of
India, not much damage is done. But domain name is
of
carrying on commercial activity. With the increase of commercial
single. If one registers, another cannot.
activity on the Internet, a domain name is also used as a business
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identifier. Therefore, the domain name not only serves as an LEGAL STATUS OF DOMAIN NAMES
address for Internet communication but also identifies the specific IN INDIA
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internet site. In the commercial field, each domain-name owner

provides information/services which are associated with such The journey of legal protection of domain names in
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domain name.” India has been more or less a favourable one. The
Courts in India have been more patient towards the
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It was further observed that “a domain name as an concept of permitting legal protection to domain names
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address must, of necessity, be peculiar and unique and on a status more or less equal to that of a trademark.
where a domain name is used in connected with a There has been a widespread of realization of
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business, the value of maintaining an exclusive identify importance of legal protection of domain names among
becomes critical.” Therefore, the importance of a
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the Indian legal circles right from its very inception and
domain name is no less than the trademark itself. If a the Courts have adopted a more progressive
er
particular trade name has come to be known in the interpretation. There have been disputes between
market to represent a particular commodity or a trademark holders and domain-name owners or
nt
particular company, the general guess of people online between domain-name owners themselves. The Courts
would be that the domain name equivalent to such trade
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have uniformly applied the law of passing off to such

name would be used by the such company. The domain domain name disputes. Let us look at a few decisions to
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name in the online world, just like the trade name in the appreciate this point.
1. Yahoo Inc. v Akash Arora2
1 2
(2004) 6 SCC 145 (1999) 19 PTC 201 (Del)
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43
This suit was filed by the plaintiff before the HC of The principle underlying the act is that no man is
Delhi seeking a decree of permanent injunction entitled to carry on his business in such a way as to
restraining the defendant from operating any business lead to believe that he is carrying on or has any
or selling, offering for sale, advertising and in any connection with the business carried on by another
manner dealing in any services or goods on the Internet man. After referring to decision in Cardservice
under the domain name ‘YAHOOINDIA.COM’. International Inc. v McGee 3 (relating to
cardservice.com) and Marks & Spencer v. One-
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It was submitted that the plaintiff was the owner of the in-a-Million 4 (1998 FSR 265 relating to
trademark ‘Yahoo!’ and domain name YAHOO.COM marksandspencer.co.uk), the Court held that
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which are well known and have acquired distinctive although the word ‘services’ may not find place in
reputation and goodwill. It was submitted that a domain the expression used in Sections 27 and 29 of the
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name adopted by the plaintiff is entitled to equal Trade and Merchandise Marks Act, yet, services
protection against passing off as in the case of a rendered have come to be recognized for an action
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trademark. The plaintiff contended that it would not be of passing off.
unusual for someone looking for an authorized ‘Yahoo!’
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b. There can be no two opinions that the two domain
site with India-specific content to type in names ‘YAHOO.COM’ and
‘YAHOOINDIA.COM’ and thereby instead of
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YAHOOINDIA.COM’ are almost similar except
reaching the Internet site of the plaintiff, such person for use of the suffix ‘India’ in the latter. When both
would reach the Internet site of the defendants.
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the domain names are considered, it is crystal clear
Allegation of cybersquatting was also made. that the two names being almost identical or similar
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in nature, there is every possibility of an Internet
The defendants, on the other hand, averred that the
user being confused and deceived in believing that
Indian Trade Marks Act related only to goods and not
L both the domain names belong to one common
services and there could not be any action of passing off
source and connection, although the two belong to
of
as the services rendered both by the plaintiff and the
two different concerns.
defendants cannot be said to be goods within the Act. It
c. On the ‘literate Internet consumer’ argument, it was
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was also contended that ‘Yahoo!’ is a general dictionary

held that the consumer might be an unsophisticated
word. Further, defendants have been using a disclaimer
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consumer of information and might find his way to

and thus, there were no chances of any deception. The
the defendant’s website providing for similar
contention that the principle of unwary customer which
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information thereby creating confusion.

is applicable in a case of infringement and passing off of
d. The ‘disclaimer’ contention was rejected on the
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the trademark would not be applicable since the Internet

ground that the defendant’s appropriation of
users are technically education and literate persons.
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plaintiff’s mark as a domain name and home page

It came on record that ‘YAHOO.COM’ was registered address cannot adequately be remedied by a
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I plaintiff’s favour with Network Solution Inc. since 18 disclaimer.

Jan 1995. It also came on record that the trademark e. Though ‘Yahoo’ is a dictionary word, yet, it has
nt
‘Yahoo!’ and its variance are registered or pending acquired uniqueness and distinctiveness and is
er
registration in 69 countries across the globe, India being associated with the business of the concerned
one of them. company and such words have come to receive
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maximum degree of protection by courts.5

After appreciation of evidence on record and law on the
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subject, the Court held as under: Ad-interim injunction restraining the defendant from
using the domain name ‘YAHOOINDIA.COM’ till the
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a. The present is not for an action for infringement of disposal of the suit was granted.
a registered trademark but an action for passing off.
3 5
950 F. Supp. 737 (1999) 19 PTC 201 (Del)
4
1998 FSR 265
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44
In December 1993, General Assembly adopted this violence are cases of torture this convention is referred
declaration that recognizes three main categories of when it comes to sexual violence.
violence against women: physical, sexual and
psychological violence taking place in the family, in the CASE STUDY OF FEW COUNTRIES
community and attempted and committed by the state.21
I. Myanmar:
In its preamble in it exclusively mentioned that women
“All of my body was in pain” as said by one woman and
especially are vulnerable to violence. 22 Overall the
experienced by thousands of women during Rohingya
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declaration is quite rigid in criticizing sexual violence in
refugee crises happened recently in Myanmar. It was
all its forms in all the articles including a list of human
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during 2017 when Myanmar military forces and
rights that are violated as a result of sexual violence or
Buddhist extremist attacked the Rohingya community
any other violence commenced against her. The only
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occupying the northern Rakshine state in Myanmar.
drawback is it is not binding. The articles of declaration
They were tortured by several means like looting the
are applicable in both the situation of peace time and
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entire village leaving them with no source of survival;
armed conflict as it can be inferred from the preamble
mass killing of the population, gang rapes sexual
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stating the vulnerability of women during war times.
violence and lot of women were abducted in front of
e. The Convention against Torture, (1986): their family for sexual slavery. They burned down the
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According to Amnesty International (2000), acts of entire village wanting to eradicate the Rohingya
sexual violence committed by the government officials community completely. The crime of sexual violence
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are a common technique of torture against women.23 If against Rohingya women can be called as invisible crime
because it was unreported owing to far fledge
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the crime of sexual violence is committed by a public
official he is ultimately causing a threat, pain to her body discrimination, fear of discarding from the community,
and the act leaves the women in huge mental trauma. fear of spending hefty amounts on health which they
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Article 1 on the convention defines torture “act by knew they could not afford and lack of confidence on
of
which severe pain or suffering, whether physical or police force and judicial system. The actual figures have
mental, is intentionally inflicted on a person for such not been traced as of now but those women who were
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purposes as obtaining from him or a third person interviewed reflect that it was used as a major tool to
terrorize the community and humiliate them as
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information or a confession, punishing him for an act

he or a third person has committed or is suspected of unproductive in protecting the women of their
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having committed, or intimidating or coercing him or a community due to which it was committed on a large
third person, or for any reason based on discrimination scale.
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of any kind, when such pain or suffering is inflicted by

When operations were launched in 2016 in response to
or at the instigation of or with the consent or
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crime being committed on a higher rate one them being

acquiescence of a public official or other person acting
sexual violence led to people fleeing to Bangladesh to
in an official capacity”24.
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take asylum. On one side the Myanmar military forces

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Sexual violence is not exclusively mentioned in the were torturing people to led them flee but on other side
Convention. But lot of similarities between the term when the people actually starting fleeing again they were
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torture and sexual violence which has been laid down by subject to torture. Upon receiving the information from
judges in deciding a case that most of the acts of sexual the women and girls ONHRC came up with the report
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in 2017 that about 100 women were sexual assaulted by

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the smugglers, traffickers etc. Even if they reach safely

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21 UN, General Assembly, Declaration on the Elimination of 24UN General Assembly, Convention Against Torture and
violence against Women, 20 December 1993. Other Cruel , Inhuman Treatment or degrading Treatment
22 Ibid. or punishment, 10 December, 1984.
23 Callamard, Agnes, Monitoring and Investigating sexual
violence, Amnesty International and Codesria Amnesty

International, (2000).
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142
to Bangladesh in refugees camp the women again III. Rwanda Genocide :

experienced sexual violence these camps are In all most every part of the continent has faced armed
characterized as a place with lack of facility to meet the conflict at one point of time and in every armed conflict
need of women and girls this led to a mass violation of the most important tool to trigger the lives of people
human rights and humanitarian law. After committing and destroy the entire community out of shame is sexual
sexual violence, the grievance does not come to an end violence. The same happened in Rwanda Genocide,
several pregnant women not allowed to go for abortion women were subjected to sexual violence on a large
ce
and lack of health care facility during prenatal, post-natal scale. This massive rape was taking place in Rwanda
and delivery the lives of women were at peril. during 1994 against Tutsi women.
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II. Libya: Thousands of women were raped with other objects
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In Libya women were held in captivity by the ISIL such as sharpened sticks and bun barrels. Sometimes
official know as Islamic State. Like in very country women were tortured by mutilation by using acid, sharp
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where war like situations arise people in order to protect objects, boiled water near pelvic area damaging their
their lives tries to flee in other countries to take asylum. reproductive system. In almost every case, these crimes
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Similarly happened in Libya in 2016 when around were inflicted upon women after they had witnessed the
162,895 people transit to Italy by sea due to lot of torture and killings of their relatives, and the destruction
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insurgence going on in Libya people were not only and looting of their homes. 25 These military armed
brutally murdered but also those who survived they forces use to kill the women after sexual violence and
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were kept in detention in poor conditions that was even in some cases the dead body of the victim was
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worse than killing someone. During their journey to take raped repeatedly to terrorize the community and often
refuge in other countries the women were brutally raped the militia would frequently leave their corpses naked
by the smugglers traffickers etc. and destroying their and with legs spread apart.26 The women were kept in
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reproductive system making them pregnant and leaving captivity for long periods or until the genocide is going
of
them in that condition where survival is hard to sustain. on while kept in captivity they hidden in the militia
homes so that they could not be traced or this activity
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Along with other people women were also detained in of keeping them in captivity was to provide these
jails by the authorities in Jawiya prison in Misrata in a
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military forces with sexual service every day and often

very treacherous condition with no female authorities termed as forced marriage.
who make it more evident that during that time also they
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were raped. Even if the condition of women was known During the genocide the grievance suffered by these
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by the justice authorities they didn’t came forward to women out of sexual violence was not always conducted
help the victim. When women were raped by the in closed spaces but also in open spaces in and around
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authorities or armed groups they use to make a video of public places like churches, hospitals, and open streets
the same and circulated in throughout the county to and in and around government offices. After
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make sure that the entire community in terrorize. committing such a heinous crime their bodies were left
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naked with blood all over along with semen.

The Libya government should adopt measures to ensure
er
that no sexual violence is committed during detention The only attempts to estimate the overall level of
and those people who flee from the captivation of ISIL gender-based violence against women have been
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should be recognized as victims of War and terror. And through extrapolations based on the numbers of
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sufficient amount of compensation should be given to recorded pregnancies as a result of rape. In a January
the victim.
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25
Binaifer Nowrojee, Shattered Lives:” Sexual Violence 26 Ibid p 39-40.
during the Rwandan Genocide and its Aftermath” (Human
Rights Watch, 1996), p 1.
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143
1996 report, the United Nations Special Rapporteur on from the community out of shame and humiliation
Rwanda, Rene Degni Segui, found that: - imposed rigorously on them they tend to commit suicide
“Rape was the rule and its absence the exception according to the rather than face the shame and ostracism they
statistics, one hundred cases of rape gives rise to one pregnancy. If anticipated upon their return.170 In some societies,
this principle is applied to the lowest figure the numbers of parents may send their daughters away from home, or
pregnancies caused by rape are estimated to be between 2,000- marry them at an early age, in an attempt to protect them
5,000, it gives at least 250,000 cases of rape and the highest figure from sexual violence.
ce
would give 500,000, although this figure also seems excessive.
However, the important aspect is not so much the number as the III. Right to Life:
en
principle and the types of rape.”27 Women were more vulnerable to be kept in detention
than men. During Rwanda genocide lot of women were
ud
At the time of genocide there was no functioning of kept in captivity by military armed groups for serving
judicial system for perpetrators kept in prison and them with sexual services. Amnesty International has
pr
victims there was no hope of justice being delivered documented the use of rape, acts of sexual humiliation,
moreover police officials who were documenting the and threats of harm to women's reproductive systems as
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genocide crimes for prosecution were male and not methods of torture in detention centers throughout the
collecting information on rape. world.28
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HUMAN RIGHTS BEING VIOLATED RECOMMENDATIONS
&
DURING ARMED CONFLICT
There is a strong need for better implementation and
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I. Right to Health: prosecution. The international conventions treaties and
During armed conflict the reproductive role of women several other resolutions should be implemented at the
L
is targeted first to attack the community which leads to national level otherwise sexual violence prohibited
of
pregnancy and illegal abortions there is no medical under these conventions remains dead letters. This
facility granted to women while she is pregnant most of means when any domestic law is formulated it should
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the women dies out of malnutrition because of lack of strictly prohibit sexual violence and also comply with
supply of food and sanitary provisions. Sexual violence international convention in criminalizing sexual
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also threatens their lives by affecting their health violence. Once implemented it should be supported by
through sexually transmitted diseases like HIV/ AIDS vigorous state institutions such as military forces, police
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many women who were raped in Rwanda were tested officers and other security forces. For their support to
positive for HIV. Most of the time medical resource be productive and qualitative they have to be provided
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available is insufficient to meet the need of woman with efficient training programs one’s they are trained
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subjected to sexual violence. In Rwanda only five they will be able to identify when it happens and to
gynecologists available to assist women their capacity to protect the population from such crimes by non-state
io
assist women to deal with problems arising from sexual actors.

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violence is limited.
Sexual violence is committed against women during
er
II. Right to live with Dignity: armed conflict and also when there is peacetime the
When women are subjected to sexual violence they are similar mistreatment is faced by the women when the
nt
not accepted by their families many husbands give war gets over. When the war gets over still in lot of
divorce to their wives and they were totally abandon
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27United Nations, Report on the Situation of Human Rights 28

Judith G. Gardam Michelle J. Jarvis, “Women, Armed
in Rwanda submitted by Mr. Rene Degni Segui, Special Conflict and International Law”, Kluwer Law International.
Rapporteur of the Commission on Human Rights, under
paragraph 20 of the resolution S-3/1 of 25 May 1994,
E/CNA/1996/68, January 29, 1996, p. 7.
*
144
countries discriminatory laws are formulated that Economic assistance and psychological assistance has to
continues to practice customary practice that interferes be provided they are rejected by their families and their
with women sexual autonomy. They are not served communities. Moreover, they are not much educated to
equally with granting of rights in property and decision earn their own living they are solely dependent on their
making process in the family. Government takes all such husband and family.
measures to protect human rights at the same time needs
to revise customary laws and practices that is an obstacle CONCLUSION
ce
to free and equal treatment to women.
Throughout the world, sexual violence is routinely
en
directed against females during situations of armed
UDHR, ICCPR AND ECHR are the core human rights
conflict. This violence may take gender-specific forms,
instruments and include provisions that prohibit offence
ud
like sexual mutilation, forced pregnancy, rape or sexual
against physical Integrity in general terms. These
slavery. Being female is a risk factor; women and girls
conventions have not included explicitly sexual violence
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are often targeted for sexual abuse on the basis of their
as a crime “right to be free from gender violence has not
gender, irrespective of their age, ethnicity or political
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been recognized as a fundamental human right.” Apart
affiliation. Rape in conflict is also used as a weapon to
from this the Geneva Convention has mentioned some
terrorize and degrade a particular community and to
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offence as grave breaches but sexual violence has not
achieve a specific political end. In these situations,
been included under this term. In all most all convention
gender intersects with other aspects of a woman's
&
sexual violence is understood as a torture it is linked and
identity such as ethnicity, religion, social class or political
defined the crime with torture and not explicitly.
affiliation. The humiliation, pain and terror inflicted by
International convention has to specifically provide a
right to live with dignity as a human right without any
L aw
the rapist are meant to degrade not just the individual
woman but also to strip the humanity from the larger
group of which she is a part. In the aftermath of such
form of sexual violence. They should explicitly engage
of
abuse, the harm done to the individual woman is often
in dealing with sexual violence against women in armed
obscured or even compounded by the perceived harm
conflict and to categorically penalize gender based
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to the community. In almost every country the pattern

violence as a crime, and strictly prohibiting sexual
of commission of sexual violence is same the grievance
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violence and all other types of against women.

and violation of human rights for a woman does not
ou
vary much.
Women against whom sexual violence is committed are
.
already under grave depression as there is lot of
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humiliation from the society and it gets retraumatises

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when they seek justice because when investigation is

conducted by the police officials who are predominantly
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male so the entire process humiliates as women are not

every comfortable in opening up their grievance and
nt
there is lack of security and confidentiality at the same

er
time so reparation becomes difficult hence females

should be employed when it comes to understanding the
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problems faced by women. This way they can collect

more data from the women.
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Women first seeks assistance from health centers this

makes the role of these health institutions to address the
issue at first All the medical ethics have to be maintained
along with confidentiality among them.
*
145

RISHABH MUNJAL
INTRODUCTION the last resort, people defend themselves and their non-
uniform laws by claiming self-improvement schemes.
Uniform Civil Code is an idea and currently a dream for
ce
many Indians which would apply uniform civil laws in Besides these, there are other questions which arise
during the debates over Article 44 such as whether there
en
the entire nation similar to the approach adopted under
criminal law of the country. It has always been is a requirement of a Uniform Civil Code in India or
ud
considered as a critical and essential element of India’s whether a Uniform Civil Code for entire India is legally
political, administrative and judicial systems but neither applicable or not. Covering all these aspects, there
pr
any of our union governments nor the citizens could appear two major obstructions which stand before the
ever find the right time to enforce a Uniform Civil Code nation to apply a Uniform Civil Code. These are:
ris
for the whole country and thus, it remained as a mere a. Conflict between Articles 14 and 25 with
directive principle under Article 44 of the Constitution
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respect to Uniform Civil Code.
of India. It implies that although a state needs b. Disputes between the claims for internal
uniformity in its civil laws, yet Republic of India, being
&
reforms of the concerned communities and
a secular and democratic state with its vast culture and external imposition from the state.
aw
pluralistic approach towards the faith of the people, was
not ready for its enforcement and as some sections of CONFLICT BETWEEN ARTICLE 14/15
our society say, India is still not ready for it. AND ARTICLE 25/26
L
of
There is no doubt that Dr B.R. Ambedkar, one of the It is a well-established fact that India is a diverse country.
major architects of Indian Constitution, was in support There are innumerable religions being followed and
al
of the idea of a Uniform Civil Code but however, he languages being spoken. It was not less than a miracle to
could not obtain anything more than just a provision as unite the Indian states to form a nation like this despite
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a directive principle. Even Pt. Jawaharlal Nehru, the first of the existence of extreme communalism and hatred.
Prime Minister of India, stated, “I confess I do not think that
ou
Even after facing the communal riots with the number

at the present moment time is ripe in India for me to push it (Civil of casualties between 200 to 500 thousand 2 and 14
Code Bill) through. I want to prepare the ground for it.”1
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million3 people being displaced or the event which is

often described as ‘the largest mass migration in human
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Now, 68 years have passed since India became a

history’4 or ‘history’s greatest migration’5, India successfully
republic and enforced its constitution but even today,
guarantees the Right to Equality under Articles 14 and
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people tend to frame innumerable reasons to prevent

15 as a fundamental right in its Constitution. Along with
the application of Article 44. Some of these reasons are
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the Right to Equality and four other fundamental rights,

cultural diversity in India, fundamental rights under
India also guarantees a fundamental right of Freedom of
er
Articles 25 and 26, application of various personal laws

Religion under Articles 25, 26, 27 and 28.
in the country and especially claims of bringing internal
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reforms from within the concerned community. As per Article 25 provides for freedom of conscience and free
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profession, practice and propagation of religion. This

provision allows every individual in India to freely
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1Parliamentary Exchange, documented by The Times of 3 United Nations High Commissioner of Refugees (2014).
India, 1954 “Rupture in South Asia”
4 Dr Crispin Bates (2011). “The Hidden Stories of
2Paul R. Brass (2003), “The Partition of India and Partition and its Legacies”
Retributive Genocide in the Punjab, 1946-47: Means, 5 Nigel Smith (2011). “Pakistan: History, Culture and
Methods and Puposes” Government”
*
146
TRENDS IN INTERCOUNTRY ADOPTION

WITH SPECIAL FOCUS ON INDIA
DIGANTH RAJ SEHGAL
ce
INTRODUCTION adopted in this way annually, moving between a 100
different countries 4 . Presently, the whole world
en
According to Black’s Law Dictionary, adoption is the act recognizes inter-country adoption as “a placement of
of one who takes another’s child into his own family, the displaced, orphaned and abandoned children”. It
ud
treating him/her as his own, and giving him/her all the significantly emerged as the most debatable issue in the
rights and duties of his own child. It is a juridical act field of Private International Law.
pr
creating between two person certain relations, purely Inter-country adoption, involving the transfer of
civil of paternity and filiations. children for parenting purposes from one nation to
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another, presents an extreme form of what is known as
The meaning of adoption as provided by the Central
“stranger” adoption, by contrast to “relative” adoption.
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Adoption Resource Authority (CARA), reads as follows: Relative adoption refers to situations in which a step-
parent adopts the child of his or her spouse, or a
&
“Adoption” means the process through which the
adopted child is permanently separated from his member of a child’s extended biological family adopts
aw
biological parents and becomes the legitimate child of the child whose parents have died or become unable or
his adoptive parents with all the rights, privileges and unwilling to parent. These adoptions are largely
uncontroversial. The term “Inter-country Adoption” as
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responsibilities that are attached to the relationship.”1
defined at the European Seminar on Inter-Country
of
Inter-country adoption is the most sensitive, Adoptions, May 1960 “represents an adoption in which
controversial and complex aspect of adoption2. It truly the adopters and the child do not have the same
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depicts the concept of “Home to Homeless and Child to nationality as well as in which the habitual residence of
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Childless”. Time and again, it is said that children are the adopters and the child is in different countries.”
most important asset of the nation 3 . The prospective
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potential and strength of a nation depends on growth Inter-country adoptions are usually of two kinds. One,
and development of children. Allowing Inter-country where reciprocity of recognition exists, that is to say, an
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adoption in no way is going to help over-populated adoption having taken place in one country is, by virtue
country like India. It is self-evident that Indian families of an international treaty, recognized in the other
na
hardly adopt any child from foreign agencies/countries. country/countries. An adoption in any member country
It solely poses threat to the life of adoptive child and of the Hague Convention5 represents this kind of inter-
io
makes their future desolate. Though, the Supreme Court country adoption. In the second kind, the reciprocity
nt
judgment is highly appreciable in this regard that it does not exist. In it two different methods are used to
totally rejected the transfer of child who has a natural effect an inter-country adoption. The first method
er
guardian. While it is difficult to ascertain its actual level, requires that the child must be adopted in the country
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it has been estimated that over 30,000 children are of origin as a pre-requisite for his or her leaving the
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1 CARA, Ministry of Women and Child Development, Fostering 2000) at 16. See also conference papers entitled
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Government of India, available at “Intercountry Adoption in the New Millennium: the ‘Quiet
http://adoptionindia.nic.in/index.htm Migration’ Revisited” delivered at the European Population
2 See. 153rd Law Commission Report on “Inter-Country Conference, Helsinki, Finland, 7-9 June 2001 and “Movement
Adoption” dated 26th Aug,1994 of Children for Intercountry Adoption: A Demographic
3 Laxmikant Pandey v. Union of India AIR 1992 SC 118 Perspective” delivered at 24th IUSSP General Population
4 Selman “The Demographic History of Intercountry Conference, Salvador, Bahia, Brazil, 18-24 August 2001.
Adoption” in Selman (ed) Intercountry Adoption: Developments, 5 The Hague Convention on Jurisdiction, Applicable Law and
Trends and Perspectives (British Agencies for Adoption and Recognition of Decrees relating to Adoptions, 1965
*
52
country of origin even though he has to be adopted It sets out a framework to ensure that inter-country
again in the receiving country as per its law. In the adoptions are carried out with the best interests of the
second method, special permission is required for the child and respecting his fundamental rights 8 . The
child to leave the country of origin, following which the Convention envisages a system of co-operation between
child is adopted in the receiving country. India comes in the child’s country of origin or the “sending country”,
the group of countries that follow the second method and the country to where the child will live with its
for effecting an inter-country adoption. adoptive parents, or the “receiving country”.
ce
The 1993 Hague Convention on Protection of Children and Co-
INTERNATIONAL RECOGNITION Operation in respect of Inter-country Adoption was formulated
en
by the Hague Conference on Private International Law9.
International standards for inter-country adoption are
This is an inter-governmental organisation which is
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found in a number of international instruments. These
responsible for the “progressive unification” of the
are the Geneva Declaration on the Rights of the
private international law rules of its Member States.
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Child, 1924; UN Declaration on the Rights of the Ireland is a Member State of The Hague Conference on
Child, 1959; The Hague Convention on Private
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Private International Law. The 1993 Convention sets
International Law, 1965; the UN Declaration on out a framework to ensure that inter-country adoptions
Social and Legal Principles relating to the
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are carried out with the interests and welfare of children
Protection and Welfare of Children, with Special to the fore. The Convention envisages a system of co-
Reference to Foster Placement and Adoption
&
operation between the child’s country of origin or the
Nationally and Internationally,1985; The Hague “sending country”, and the country to where the child
Convention on Protection of Children and Co-
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will live with its adoptive parents, or the “receiving
operation, 1965. country”. The Convention has been described as a
In 1986 the General Assembly of the United Nations6
L practical expression of the fundamental principles set
adopted the Declaration on Social and Legal Principles relating
out in the 1989 United Nations Convention on the Rights of
of
to the Protection and Welfare of Children, with special reference to
the Child10.
Foster Placement and Adoption Nationally and Internationally.
In its 1998 Report on the Implementation of the Hague
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Article 17 7 states that Inter-country adoption may be

Convention on Protection of Children and Co-Operation in
considered as an alternative means of providing the
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Respect of Inter-country Adoption 1993 11 the Commission

child with a family.
recommended ratification of the Convention by Ireland.
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1993 Hague Convention on Inter-Country Adoption

The Commission stated that the Convention
The Hague Convention is the first international
represented a significant step in the regulation of
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instruments formulated in the year 1993 that endorses

adoptions across national frontiers and that standards of
the practice of inter-country adoption and lays down
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inter-country adoption will be raised, procedures

comprehensive framework for addressing the issues
streamlined and abuses addressed through it. In 2006,
surrounding inter-country adoption.
io
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6 See. UN General Assembly Resolution No.41/85 dated 3rd 9 The Convention was concluded on 29 May 1993 and entered
Dec,1986 into force on 1 May
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7 Id. at Art.17: If a child cannot be placed in a foster or an 1995. Ireland signed the Convention on 19 June 1996.
adoptive family or cannot in any suitable manner be cared for 10 Duncan “The Hague Convention on Protection of
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in the country of origin, inter-country adoption may be Children and Co-operation in Respect of Inter-country
considered as an alternative means of providing the child with Adoption: Its Birth and Prospects” in Selman (ed) Inter-country
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a family; See also. UN General Assembly Convention on Adoption: Developments, Trends and Perspectives (British Agencies
Rights of the child, Art.21(b) for Adoption and Fostering 2000) at 41.
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8 Convention on Protection of Children and Co- 11 LRC 58-1998. See also Pillay “Implementation of the
operation in Respect of Inter-country Adoption, 1993. Hague Convention on Inter-country Adoption: The Law
Art.1(a):”to establish safeguards to ensure that inter-country Reform Commission Report” [1999] 1 IFLJ 19. It is worth
adoptions take place in the best interests of the child and with noting that, since 1998, the United Kingdom has incorporated
respect for his or her fundamental rights as recognised in the Convention into UK law in the Adoption (Inter-country
international law.” Aspects) Act 1999, since replaced by the Adoption and Children
Act 2002.
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53
the United Nations Committee on the Rights of the In India, adoption has been an age old practice and
Child expressed concern that Ireland’s inter-country performs a very important function in the society. In the
adoption legislation does not fully correspond with Smritis literature, the law of adoption was parent based
international standards, and recommended that and not child based. The Smritikaras suggested that only
legislative reform remedy this situation 12 . The one son could be adopted for the continuation of the
Commission takes this opportunity to reiterate its family line and to offer oblations to the deceased
recommendation that the 1993 Hague Convention on Inter- ancestors. The Dharmasutras deals in detail with the
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country Adoption be ratified and incorporated into Irish qualifications for the male child to be taken in adoption.
law, and welcomes the Government’s commitment to The adopted son is uprooted from his natural family and
en
do so through an Adoption (Hague Convention and Adoption transplanted in to adoptive family like a natural son. But
Authority) Bill to be published in 200713. at present, the law of adoption among Hindus is
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completely regulated by the Hindu Adoption and
The 1993 Hague Convention on Inter-Country Adoption does Maintenance Act of 1956.
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not deal with what the effects of foreign adoption
recognition should be. Instead, Article 26, which deals However, inter-country adoption is a novice concept in
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with recognition of inter-country adoptions, allows a India and yet to gain much ground. The supreme Court
Contracting State to deal with this in its domestic law.53 of India while supporting inter-country adoption, in the
Ju
In that respect, it has been noted that Article 26 case of Laxmikant Pandey v. Union of India 15 laid down
contains: certain guiding principles which were to be followed in
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the cases in of inter-country adoption. It was held
“…a list of the minimal consequences of recognition,
aw
necessary to bear in mind that the primary object of
which may have to be supplemented by additional rules giving the child in adoption being the welfare of the
included in implementing or already operating in people, great care has to be exercised in permitting the
L
legislation in Contracting States”14. child to be given in adoption to foreign parents, lest the
of
child may be neglected or abandoned by the adoptive
LEGAL PROVISION IN INDIA parents in the foreign country or the adoptive parents
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Indian legislation does not have any specific provision may not be able to provide the child a life of moral and
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that lays down principle for inter-country adoption. material security, or the child may be subjected to a
Even, the Supreme Court in the absence of any law moral and sexual abuse or forced labour or
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regulating inter-country adoption refers to Article 15, 34 experimentation for medical or other research, and may
and 39 of the Constitution and Sections 7 to 9 of be places in worse situation than that in his own country.
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Guardian and Wards Act, 1890 for issuing directions to The apex court further went on to lay down certain
perquisites for foreign adoption. In the first place, every
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regulate inter-country adoption.

application from a foreigner desiring to adopt a child
must be sponsored by social or child welfare agency
io
nt
12 See UN Committee on the Right of the Child-Concluding www.taoiseach.gov.ie/index.asp?locID=186&docID=-1. See

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Observations: Ireland 29 September 2006. Available at also the comments made in Dáil Éireann by Mr. Brian
www.ohchr.org/english/countries/ie/ It should also be Lenihan TD, Minister of State for Children that “the Hague
nt
noted that the 17th World Congress of the International Convention will be transposed into legislation. The drafting
Association of Youth and Family Judges and Magistrates was of the legislation is at a final stage and I hope to publish it
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held in Belfast, Northern Ireland in Autumn 2006. It early next year.” Debate on the Child Care (Amendment) Bill
formulated the Belfast Declaration which states that in order to 2006 Seanad Debates Vol 628 (23 November 2006). Available
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strengthen the international protection of the rights of the at www.oireachtas-debates.gov.ie

child, all States should ratify the Hague Convention on Inter- 14 Duncan “Conflict and Co-Operation; The Approach to
country Adoption. See Conflicts of Law in the 1993 Hague Convention on

www.youthandfamily2006.com/beldec.htm. See also “Belfast Intercountry Adoption” in Lowe and Douglas (eds) Families
Declaration” (2006) International Family Law Journal at 178. Across Frontiers (Martinus Nijhoff Publishers 1996) 577 at 585-
13 See Government Legislation Programme for Spring Session 2007 588.
available at 15 Supra, Note 3.
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54
recognized or licensed by the government of the country Commission of India in its 153rd report recommended
in which the foreigner is a resident. No application by a for Inter-Country Adoption Act in the year 1994 but
foreigner for taking a child in adoption should be was never put into consideration. The Central
entertained directly by any social welfare agency in India Government dated 24th June, 2011 notified the
working in the area of inter-country adoption or by any Guidelines issued by the Central Adoption Resource
institution or centre or home to which the children are Authority (CARA) to provide for the regulation of
committed by the juvenile court. adoption of orphan, abandoned or surrendered.
ce
The Supreme Court also insisted upon the age within However, at the international level, India has signed the
en
which a child should be adopted in case of inter-country Hague Convention on Inter-country Adoption, 1993 on
adoption, and held that if a child is to be given in inter- January 9, 2003 and ratified the same on June 6, 2003
ud
country adoption, it would be desirable that it is given in with the view a strengthening international cooperation
such adoption before it completes the age of 3 years. and protection of Indian children placed in inter-
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Such a ruling was delivered by the Supreme Court country adoption. Inter-country adoption processing in
because it felt if a child is adopted by a foreign parent Hague countries is done in accordance with the
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before he or she attains the age of 3 years, he or she has requirements of the Convention; the United States of
more chances of assimilating to the new environment America implementing regulations, as well as the
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and culture. Another important rule framed by the implementing legislation and regulations of India. For
Court during the course of judgment was: the purpose of implementation of the Convention in
&
India, Ministry of Social Justice and Empowering is
“Since there is no statutory enactment in our country providing
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functioning as the administrative ministry and Central
for adoption of a child by foreign parents or laying down the Adoption Resource Authority (CARA) as the central
procedures which must be followed in such case, resort had to be authority, which functions as an autonomous body
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taken to the provisions of the Guardian and Wards Act, 1980 under the Ministry of Women and Child Development.
of
for the purpose of felicitating such adoption.” It functions as the nodal body for adoption of Indian
children and is mandated to monitor and regulate in-
Therefore, it may be submitted that in the absence of
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country and inter-country adoption. CARA primarily

any explicit legislation on the subject, the Supreme
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deals with adoption of orphan, abandoned and

Court has played a pivotal role in regulating the adoption
surrendered children through its associated/recognized
of tendered aged children to foreign parents.
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adoption agencies.
The Government of India under Clause 2316 and 2417 of
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At national level, India has prepared a National Policy

the Adoption of Children Bill, 1980 tried to insert
for children in 1974 under which Ministry of Social
provision for inter-country Adoption for the first time
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Justice and Empowerment (now known as Ministry of

and treated it as an unlawful act but it failed due to
Women and Child Development) and has got the
unacceptance of some provisions of the bill by Muslims.
io
mandate to enact laws regarding welfare of children. The

The Central Government intended to frame a uniform
nt
Juvenile Justice (Care and Protection of Children) Act,

civil code which was ultimately rejected. The Law
2000 is a landmark in this regard. This Act has
er
nt
16 Adoption of Children Bill,1980. Clause 23: (1)Except court is satisfied that the applicant intends to adopt a child under the law
under the authority of an order under section 24, it shall not be lawful of or within the country in which he is domiciled, and for that purpose
eI
for any person to take or send out of India a child who’s a citizen of India desires to remove the child from India,either immediately or after an
to any place outsde India with a view to the adoption of the child by any interval, the court may make an order (in this section referred to as a
person.(2)Any Person who takes or sends a child out of India to any
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provisional adoption order) authorizing the applicant to remove the child

place outside India in contravention of Sub-section(1) or makes or takes for the purpose aforesaid and giving to the applicant the care and custody
part in any arrangements for transferring the care and custody of a child pending his adoption aforesaid Provided that no application shall be
to any person for that purpose, shall be punishable with imprisonment for entertained unless it is accompanied by a certificate by the central
a term which may extend to six months , or with fine or with both. government to the effect that : I: the applicant is in its opinion a fit person
17 Adoption of Children Bill,1980. Clause 24: (1 ) if upon an to adopt the child. II.the welfare and interests of the child shall be
application made by a person who is not domiciled in India, the district safeguarded under the law of the country of domicile of the applicant.
*
55
incorporated the provision of adoption of child as an

alternative to institutional care.
The Supreme Court of India has laid down that every

application from a foreigner or NRI (Non-Resident
Indian) or PIO (Person of Indian Origin) desiring to
adopt a child must be sponsored by a social or child
ce
welfare agency recognized or licensed by the
government or a department of the foreign government
en
to sponsor such cases in the country in which the
foreigner is resident. The foreign agency should also be
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an agency “authorized” by CARA, Ministry of Social
Justice and Empowerment, Government of India. No
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application should be entertained directly by any social
or child welfare agency in India.
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Ju
&
L aw
of
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ou
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na
io
nt
er
nt
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56
and restricted the creditors of an insolvent company to  Where it was found that the sole purpose for which
sue the shareholder of the company to pay the the company was formed was to evade taxes the
outstanding debt. Further, in Macaura v. Northern Court will ignore the concept of separate entity and
Assurance Co. Ltd.6 it was held that the business does make the individuals concerned liable to pay the
not become that of a shareholder even though he owns taxes which they would have paid but for the
all the shares until the company is treated as an agent of formation of the company.
the shareholder.
In Re. Sir Dinshaw Manakjee Petit 10 the assessee was
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c. Exceptions a wealthy man enjoying large dividend and interest
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income. He formed four private companies and divided
The situations under which the Courts have found it his income into four parts in a bid to reduce his tax
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necessary to disregard the separate personility of a liability. It was held that that the company was formed
company7: by the assessee purely and simply as a means of avoiding
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super tax and the company was nothing more than the
 Where the corporate veil has been used for
assessee himself. It did no business, but was created
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commission of fraud or improper conduct.In such
simply as a legal entity to ostensibly receive the
a situation, Courts have lifted the veil and looked
dividends and interest and to hand them over to the
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at the realities of the situation. In Gilford Motor
assrsseee as pretended loans.The courts decided to
Company v. Horne8 the Court of Appeals lifted
disregard the corporate entity as it was being used for
&
the corporate veil since the company which was
tax evasion.
established by the defendant in the name of his
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wife was to solicit customers outside the business  Avoidance of welfare legislation is as common as
and was a sham to cloak the wrongdoings of the avoidance of taxation and the approach in
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defendant. considering problems arising out of such
 Where a corporate facade is really only an agency
of
avoidance has necessarily to be the same and,
instrumentality therefore, where it was found that the sole purpuse
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 Where the conduct conflicts with public policy, for the formation of the new company was to use
courts lifted the corporate veil for protecting the it as a device to reduce the amount to be paid by
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public policy way of bonus to workmen,the Supreme Court

ou
upheld the piercing of the veil to look at the real

In Connors Bros v. Connors 9 the principle was
transaction.
applied against the managing director who made use
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of his position contrary to public policy. In this case, In The Workmen Employed in Associated Rubber
na
the House of Lords determined the charcter of the Industries Limited Bhavnagar v. The Associated
company as “enemy” company, since the persons Rubber Industries Ltd,Bhavnagar and another 11
io
who were de facto in control of its affairs, were the Supreme Court held that the new company which
residents of Germany, which was at war with England was created wholly by the principal company was
nt
at that time.The alien company was not allowed to formed as a device to reduce the gross profits of the
er
proceed with the action, as that would have meant principal company and thereby reduce the amount to be
giving money to the enemy,which was considered as paid by way of bonus to workmen.
nt
monstrous and against “public policy”.

 Where it is found that a company has abused its
eI
 Where true character or status of the company is corporate personality for an unjust and inequitable
to be determined purpose, the court would not hesitate to lift the
Th
6 9
(1925) A.C. 619 (1940) 4 All E.R. 179
7 10
https://www.icsi.edu/WebModules/CompanyLaw.pdf AIR 1927 Bombay 371
11
(Accessed on 22/8/2018) AIR 1986 SC 1
8
(1933) Ch 935
*
152
corporate veil. Further, the corporate veil could be wholly owned subsidiary hotels of Corporation of India
lifted when acts of a corporation are allegedly Ltd. The Supreme Court rejected the appeal.
opposed to justice,convenience and interests of
revenue or workmen or are against public interest. An insight into the statutory provisions and the recent
judgement necessitates the need for discussing reverse
Recent Judgements veil piercing which is an unsettled phenomenon in India.
In Vodafone International Holdings B.V. v. Union Reverse Piercing the Corporate Veil
ce
of India & Anr. 12 , Vodafone incorporated in the
Netherlands, acquired the entire share capital of CGP Reverse Veil Piercing is an antithesis to the traditional
en
Investments Ltd (CGP), a company incorporated in the veil piercing. It essentially disregards the separate legal
existence of a company from its members and permits a
ud
Cayman Islands, from Hong Kong based Hutchison
Group. The CGP controlled a 67% interest in creditor to access an entity/corporation’s assets in
satisfaction of a shareholder’s debt. The reverse veil
pr
Hutchison-Essar Limited (HEL), Hutchison’s Indian
mobile business. The Indian income tax authorities piercing is unsettled in India and less universally
ris
contended that capital gains were made by Hutchison in acceptable across the globe. In 1992 the courts in New
India and that Vodafone was therefore liable to pay the York held that piercing the veil in reverse is permissible.
Ju
withholding tax. The Supreme Court discussed the
Importance of Reverse Veil Piercing
principle of the corporate veil and the circumstances
&
under which it may be lifted in the context of It is considered as an important principle of Corporate
commercial cross-border transactions and tax Governance in the States of US and UK. Its significance
aw
avoidance. It decided against lifting the corporate veil can be emphasized in varied circumstances
since the tax authorities failed to establish that the
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transaction was a sham or a tax avoidance scheme. If the creditor of a shareholder is not allowed to reverse
pierce then his claim will depend on the personal ability
of
In State of Rajasthan & Ors. v. Gotan Lime Stone of a person to pay back, which in turn also depends on
Khanji Udyog Pvt. Ltd. & Anr13 the amount received by him from the company.
al
rn
The Supreme Court held that the doctrine of lifting the Types
corporate veil can be invoked if the public interest so
ou
demands or if there is an allegation of violation of law There are two types of reverse veil piercing inside and
using the device of a corporate entity. In the instant case, outside veil piercing depending on the status of the
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the corporate entity has been used to conceal the real parties who seek to reverse pierce the veil.
transaction of transfer of mining lease to a third party
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for consideration without statutory consent by terming Inside Piercing is done by corporation owners or
it as two separate transactions- the first of the insiders to take advantage of the corporation’s claims
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transforming a partnership into a company and the that they could not take in their individual capacity.
nt
second of the sale of entire shareholding to another Outside Piercing seeks to pierce the corporate veil to
company. The real transaction is sale of mining lease
er
impose liability on the corporation to satisfy the debt of

which is not legally permitted. Thus, the doctrine of an individual shareholder.
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lifting the veil has been applied to give effect to law and
to prevent circumventing it.
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In Balwant Rai Saluja v. Air India Ltd & Ors.14 the

Th
workmen of the appellant canteen resorted to pierce the

corporate veil between the parent Air India Ltd. and its
12 14
SLP(C) No.26529 of 2010 (2014) 9 SCC 407
13
AIR 2016 SC 510
*
153
Piercing the Corporate Veil v/s Reverse Piercing defaulted in making payment as a result of which the
the Corporate Veil plaintiff’s resorted to attach the defendant’s boats to
satisfy the debt. The trial court permitted the plaintiff’s
PIERCING THE CORPORATE VEIL claim of reverse corporate veil lifting but Justice Hand
disregarded this decision and greatly limited its scope by
CREDITOR
NO MONEY FROM
SHAREHOLDER’S holding that “Perhaps it would be too much to say that
CORPORATION
MONEY a subsidiary can never be liable for a transaction done in
ce
the name of a parent…but such instances, if possible at
all, must be extremely rare.”
en
Pierce Pierce
Subsequently, after 27 years, the traces of the aforesaid
ud
doctrine were found in the marital property case of
W.G. Platts, Inc. v. Platts16. In the instant case, the
pr
REVERSE PIERCING THE CORPORATE VEIL
plaintiff wife sought to impose liability on her husband’s
corporation in order to satisfy her share of the assets as
ris
CORPORATION’S CREDITOR per their divorce decree. The Washington Court held
MONEY NO MONEY FROM
that reverse veil piercing was permissible in order to
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SHAREHOLDER
satisfy the divorce decree as the corporation was an alter
ego of the husband. It was through this opinion that the
&
reverse veil piercing gained acceptance.
aw
The Platts case was followed by Shamrock Oil & Gas
Reverse Reverse
Pierce Pierce
v. Ethridge 17 wherein the district court in Colorado
L
stressed that “the abstraction of the corporate entity
of
should never be allowed to bar out and pervert the real
The diagram essentially depicts that traditional piercing
and obvious truth.” Here, the court allowed a creditor
holds an individual liable for the acts of a corporation,
al
who had an unsatisfied judgement against the

or a parent liable for the acts of a subsidiary, whereas
corporation’s owner (defendants) to reverse pierce and
rn
reverse piercing imposes liability on a corporation for

thereby attach the corporation’s main asset, an oil-
the obligations of an individual shareholder, or on a
drilling rig, in order to satisfy his debt since the
ou
subsidiary corporation for the acts of a parent

corporation was a mere sham to divert all the assets of
corporation.
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the corporation.
SCOPE AND APPLICABILITY OF
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Scope
REVERSE VEIL PIERCING
The three elements to be taken into consideration
io
Background before applying the doctrine of reverse veil piercing are:

nt
The evolution of the doctrine of reverse veil piercing

 Degree of identity between the shareholder and
er
dates back to the landmark judgement given by Justice

corporation by taking into account alter ego,
Hand in the case of Kingston Dry Dock Co. v. Lake
nt
agency or instrumentality aspects.

Champlain Transportation Co.15 In the said case, the
 Public Policy by considering any fraudulent or
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plaintiff’s (Kingston Dry Dock Co.) entered into an

illegal intent and conduct and whether the pierce
agreement with the defendants (Lake Champlain
would harm other innocent parties considering the
Th
Transportation Co.) to repair few boats of the latter. The

cost-benefit analysis
defendants, subsidiary of the plaintiff company
15 17
31 F.2d 265 (2d. Cir.1929) 159 F. Supp. 693 (D. Colo. 1958)
16
49 Wn. 2d 203 (2d. Cir. 1956)
*
154
 That whether any other remedy can be sought to In Fox v. Fox22 the courts allowed the wife to reach the
rectify or solve the solution or not. If not, then this assets of the corporation of the husband on similar
doctrine must be invoked to promote equitable grounds who attempted to escape his post-marital
justice obligations.
The complexities of the corporate structure necessitate Application of Reverse Veil Piercing in India
the above three elements to administer justice.
With a substantial increase in the number of corporate
ce
Practice of Reverse Veil Piercing by the bodies in India, the emerging concept of reverse veil
en
Government piercing has acquired great significance among the
policy makers as courts have struggled to attach liability
In 1977, through the case of G.M. Leasing Corp. v.
ud
on the concerned parties in like circumstances. In India,
United States18, the government attempted reverse veil the reverse veil piercing requires to be analyzed in terms
piercing and the courts permitted the same on the
pr
of how courts have applied the concept so far and also
ground that although the individual was not an the prospects that the approach holds in the context of
ris
incorporator, director, or ofﬁcer of the plaintiff contemporary corporate environment. The ruling in
corporation, he was an equitable owner. Prest v Petrodel Resources Ltd. 23 was extensively
Ju
relied by the Supreme Court of India in its elaborate
A similar case in this regard was that of Valley Finance
discussions on piercing of corporate veil in Balwant
Incorporation v. United States 19 which emphasized
&
Rai Saluju’s case. As highlighted in the Balwant Rai
that the government’s inability to recover taxes or
Saluja case, wider application has been made in India
aw
legitimate tax debts is a valid ground for reverse veil
than English Law providing scope for applicability of
piercing.
reverse piercing of corporate veil as an exception to the
L
In the present scenario, tax authorities in United separate legal entity. In addition, various statutes in India
of
Kingdom and United States closely adhere to the have incorporated the liability of the corporations like
doctrine in such cases to attach assets of a corporation Section 276-B of Income Tax Act, Negotiable
al
to satisfy debts of the shareholder’s. Instruments Act as well as the 41st Law Commission of
India which has proposed an amendment requiring
rn
India also needs to abide by the same path in order to punishment to be in terms of fine in case of offender
deliver justice to the concerned parties. In this light, the being a body corporate in the Indian Penal Code. This
ou
GAAR as referred to in the Vodafone International indicates that the reverse veil piercing has already been
Holdings B.V. v. Union of India & Anr. 20 , has
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in practice under the concept of Corporate Criminal

pledged to introduce means of enabling tax authorities Liability.
na
to pierce the corporate veil in consonance with direct

tax code. ANALYSIS OF THE RECENT
io
JUDGEMENTS
Proximity of Alter Ego doctrine with Reverse Veil
nt
Piercing Reverse veil piercing requires “such unity of interest and

er
ownership that the separate personalities of the corporation and the

In C.F. Trust Inc. v. First Flight Ltd. Partnership21, individual no longer exist” and “circumstances must be such that
nt
the Virginian courts allowed the creditors to collect their adherence to the fiction of separate corporate existence would
debts from an entity claiming itself to be an alter ego of sanction a fraud or promote injustice.”
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the individual debtor. Through reverse veil piercing the

creditors could reach the assets of the company.
Th
18 21
429 US 338 (1977) 2000 W.L. 1262448
19 22
629 F. 2d 162 (2d. Cir. 1980) 1998 W.L. 114010 (Va. App. 1998)
20 23
SLP(C) No.26529 of 2010 2013 UKSC 34
*
155
sensitivity into energy and climate-related policies and learning as well as development of
projects requires a paradigm shift that recognizes occupation/vocation/technical skills by women.
women’s contributions to climate change responses too,
and promotes the development of new opportunities Gender sensitive curricula would be developed at all
for women in the energy sector. To accomplish this goal, levels of educational system in order to address sex
women generally need technical and business stereotyping as one of the causes of gender
management training. discrimination.
ce
Innovative financing and credit schemes for expansion Special attention will be given to the needs of women in
en
of energy services can serve as a catalyst for new the provision of safe drinking water, sewage disposal,
entrepreneurial activities for women, if energy access is toilet facilities and sanitation within accessible reach of
ud
effectively linked with income-generating opportunities. households, especially in rural areas and urban slums.
Women could use equipment for their own activities, Women’s participation will be ensured in the planning,
pr
plus also sell energy services to earn income, or actually delivery and maintenance of such services. 17
learn to build, sell, maintain or repair energy
ris
In recognition of the diversity of women’s situations and
technologies. The ability of women to take advantage of
in acknowledgement of the needs of specially
business opportunities offered by new energy options
Ju
disadvantaged groups, measures and programmes
are often constrained, though, by legal or social barriers
should be undertaken to provide them with special
that limit their property rights, land, tenure, and access
&
assistance. These groups include women in extreme
to credit. Government policies are needed that go
poverty, destitute women, women in conflict situations,
aw
beyond climate change and energy sector planning, and
women affected by natural calamities, women in less
expand women’s overall opportunities for economic
developed regions, the disabled widows, elderly women,
empowerment.15
L
single women in difficult circumstances, women
heading households, those displaced from employment,
of
“The role of women as energy providers can be transformed into
suitable micro-enterprises if they can manage fuel wood or oil seed migrants, women who are victims of marital violence,
deserted women and prostitutes etc. Irrespective of their
al
plantations, dispense kerosene or LPG, assemble solar panels,

build cook stoves and brick kilns, and even manage electricity conditions of living, women should be allowed to live a
rn
distribution and bill collection.” Where Energy is Women’s life of dignity. The wishes of women who are involved
Business, ENERGIA 2007 in a certain situation should be respected as they are an
ou
important part of the society without whom our society

India has also ratified various international conventions is incomplete.
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and human rights instruments committing to secure

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equal rights for women. Key among them being the

ratification of the Convention on Elimination of All Forms of
io
Discrimination Against Women (CEDAW) in 1993. 16

nt
Equal access to education for women and girls will be

ensured. Special measures will be taken to eliminate
er
discrimination, universalize education, eradicate

nt
illiteracy, create a gender-sensitive educational system,

increase enrolment and retention rates of girls and
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improve the quality of education to facilitate life-long

Th
Mohsin Khan, Women Empowerment for Sustainable

15 16 Namrata Patel, NATIONAL POLICY FOR THE
Growth, Energy Technologies Climatic Change EMPOWERMENT OF WOMEN
17 M.Indumathi & C.Premlatha, WOMEN
*
64
a company and its shareholders is a fundamental but not

sacred principle of modern corporate law. Indian law
demands that courts respect the sanctity of the
corporate veil and the independent corporate
personality that comes into existence immediately upon
incorporation of a company. Since Reverse veil piercing
takes into account the balancing of relevant interests
ce
that are much needed to ensure justice, faith and stability
in the system it proves to be a potential equitable
en
remedy.
ud
pr
ris
Ju
&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
eI
Th
*
157

ADITYA G.
ce
INTRODUCTION asserted that litigations in India are handed down from
one generation to another as part of their heirloom.2
en
“Justice too long delayed is justice denied” 1
One has to address this fact while keeping in mind that
ud
-Martin Luther King Jr.
under the Constitution of India, the judicial function, as
a sovereign duty, is assigned to the judicial wing of the
pr
The judiciary in India is arguably the most respected
organ of the state, mostly due to its ‘duty bound’ state which is required to discharge its duty ensuring
speed, accuracy and cost effectiveness. Deficiency in any
ris
approach towards securing the rights of citizens and due
to the adoption of ‘judicial activism’ in various social, of these three aspects can result in the failure of justice
Ju
socio-economic and environmental issues. The judiciary delivery system to discharge its duties in a manner
has been instrumental in keeping a check on the expected by the society.3 One has to also consider the
&
arbitrary usage of power by the other two organs of the impact of such deficiency on ‘the right to speedy trial’
state i.e. the Legislature and the Executive, thereby which has been read into Art. 21 through various cases
aw
upholding the constitution in letter and spirit and laws thus having the force of a fundamental right and
allowing constitutionalism to thrive in this country.
L how such deficiency has led to the violation of it.
Contrary to the reputation of being respectable, fair and Likewise, access to justice for the common man is
another concern along with the difficulty in
of
honorable, the judiciary also holds the reputation of
being lethargic, tedious to approach and of being administrating the judiciary and the plunge in its
credibility thereof. These aspects have been given
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unfriendly to common litigants; Any kind of interaction

with this organ of the state is generally considered to be substantial emphasis in subsequent parts of this paper.
rn
undesirable by the common man, this negative image It is of paramount importance to solve the issue of
has overwhelmingly eclipsed the substantial amount of
ou
mounting pendency and backlog of cases so as to assure

altruistic work done by it, so much so that approaching the achievement of the preambular goal of securing to
a court in itself is stigmatized by the society, it is often
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all citizens social, economic and political justice and

seen to bring shame on oneself and one’s family if one hence the judicial system is in desperate need of new and
na
were to approach the judiciary irrespective of the innovative reforms that can bring it out of this
reasons for doing so. dysfunctional state. Proposing such reforms is the
io
There may be many reasons for the public to have such primary objective of this paper and an attempt has been
nt
a negative opinion on the judiciary, however, one has to made to meet such objective in succeeding parts of this
paper.
er
affirm the fact that drawn-out and prolonged

proceedings often extending up to many years and
nt
sometimes decades is certainly one of the primary

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reasons for the formation of such bleak opinion, it is

Th
1Martin Luther King Jr, 'Letters from Birmingham Jail ' (The 2Yashomati Ghosh, 'Indian Judiciary: An Analysis of the
Estate of Martin Luther King Jr, 16th April 1963) Cyclic Syndrome of Delay, Arrears and
<https://swap.stanford.edu/20141218230016/http://mlkk Pendency'[2017] 5(21) Asian Journal of Legal Education
pp01.stanford.edu/kingweb/popular_requests/frequentdocs
/birmingham.pdf > accessed 4th September 2018
*
158
DECODING PENDENCY, DELAY, of admission of new cases. Pendency, however is a

ARREARS AND BACKLOGS useful tool to roughly estimate the speed and efficiency
of a judicial system. Currently, the pendency across all
Before trying to analyze the impacts and causes of courts of the country is at 2,76,70,455 (i.e. more than 27
pendency, delays, arrears and backlogs, it is very million) cases. 6 This is a gargantuan number that
important for one to understand properly what these indicates the fact that clearly there is some irregularity or
terms mean and how they are a problem that can be discrepancy in the dispensation of justice.
ce
fateful for the justice dispensation system of the
country. Delay, as according to the definition so given includes
en
all cases that have been instituted but have not been
Though the problems of backlogs, arrears and pendency dealt with in the time frame prescribed for the same.
ud
have been in the limelight from as early as 1949 through This is only a metric to understand how many cases are
the High Court’s Arrears Committee4, there was never a actually running behind vis-à-vis their disposal and is
pr
universal consensus on the meaning of these terms and calculated irrespective of the reason for the delay of such
they were often used synonymously with each other cases. Delay too, per se is not a bad thing as cases may be
ris
creating scope for misconstruction and confusion. It delayed for legitimate reasons. In some cases, where the
was only in the Law Commission’s 245th report in 2014 judiciary’s full attention is required due to the gravity of
Ju
that a clarity was obtained on what these terms actually the facts or due to other factors, delay may actually be
meant, accordingly, these terms were defined as follows positive as it could provide for elaborate and detailed
&
in Chapter-II of the aforesaid report: proceedings that maybe required to mete out justice.
aw
a. Pendency: All cases instituted but not disposed of, regardless of Arrears are a subset of delays where the cases so delayed
when the case was instituted. were due to unwarranted reasons such as inordinate
L
adjournments, absentee counsels etc. arrears unlike
b. Delay: A case that has been in the Court/judicial system for
of
pendency or delays are necessarily bad for the
longer than the normal time that it should take for a case of that
dispensation of justice and maybe detrimental to the
type to be disposed of.
al
functioning of the judiciary. Arrears are the main

problem plaguing the judicial system and they require to
rn
c. Arrears: Some delayed cases might be in the system for longer

than the normal time, for valid reasons. Those cases that show be in the limelight rather than pendency. As on date,
there are 22,89,561 (more than2.2 million) cases 7 that
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unwarranted delay will be referred to as arrears.

have been pending for more than a decade; even if one
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d. Backlog: When the institution of new cases in any given time were to assume that 50% of these cases were delayed
period is higher than the disposal of cases in that time period, the due to legitimate reasons, the number of cases that
na
difference between institution and disposal is the backlog. This would still fall under the ambit of arrears would be a
figure represents the accumulation of cases in the system due to the staggering 11,44,782 cases, the situation with respect to
io
system’s inability to dispose of as many cases as are being filed.5 arrears is not much different for cases that are pending
nt
for less than ten years of which there are currently

In the sense of the definition so given, ‘pendency’ in 2,53,34,549 cases. One can claim that much of the
er
itself is not the problem, every judicial system must have pendency in the judiciary is due to unwarranted reasons
a certain amount of pendency, it is practically impossible that could be avoided.
nt
for a judicial system to dispose of cases at the same rate

eI
2018) <http://njdg.ecourts.gov.in/njdg_public/main.php>
Th
5 The Law Commission of India, Arrears and Backlogs: Creating accessed 31 August 2018
7 Ibid
additional Judicial (Wo)manpower, (Law Com No. 20, 2014) para
1, chapter-II
6 Ministry of Law and Justice, Department of
justice, 'SUMMARY REPORT OF INDIA AS ON DATE:

-31/08/2018'(National Judicial Data Grid, 31 August
*
159
Finally, backlog is a term that indicates the difference these four tracks have been given for in Rule 3(2) of the
between the number of cases instituted and the number aforementioned rules where Cases of Track-I are to be
of cases disposed by the judiciary in a given timeframe. disposed off within 9 months, Track-II within 12
Backlogs are the best parameter to measure the months and cases in Track-III and IV are to be disposed
efficiency of the judiciary. off within 24 months and these time limits are not
mandatory.
With the meaning of these terms in mind, one may
ce
wonder as to what “normal time” as mentioned in the There is no such prescription of time frames for
definitions is. The question of ‘normal time’ and setting Criminal cases, this may be due to the necessity of the
en
up of mandatory ‘time frames’ was first addressed by the courts to elaborately conduct trials so as to deliver fair
Supreme court in a series of cases starting from and fully informed verdicts considering what is at stake
ud
Common Cause v. Union of India (1996), 8 Common for the accused. However, one has to also consider the
Cause v Union of India (Common Cause-II), 19969, Raj Right to speedy trial which is read into Art.21 of the
pr
Deo Sharma v. State of Bihar10 and Raj Deo Sharma v Constitution as a fundamental right, the condition of
State of Bihar (Raj Deo II).11 However, in the case of P. under trial prisoners, the Human Rights aspect thereof
ris
Ramchandra Rao v. State of Karnataka,12 a seven judge and its impact on the prison system. There are a few
bench of the Supreme Court held that mandatory time instances under The Code of Criminal Procedure,1973
Ju
limits could not be prescribed. Hence, the idea of where time limits are prescribed for different stages as
‘normal time’ being fixed and binding was scrapped and in Section. 57, Section 167 and Section 309.
&
non-binding time frames as directory guidelines were to
aw
be issued by the High Courts in exercise of their power UNDERSTANDING THE CAUSES OF
under Section 89 r/w Section 122 r/w Section 124 of DELAYS AND ARREARS
the Code of Civil Procedure, 1908.
L
After understanding the problem of delay and arrears
of
Therefore, ‘normal time’ for civil proceedings vary from
from the preceding sections, it is natural for a person to
the jurisdiction of one High Court to another; for
wonder as to why such delay and arrears are caused in
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example, The Karnataka High Court has prescribed The

the first place. This section aims at answering this
Karnataka (Case flow Management in Subordinate
rn
precise question in a comprehensive manner.

Courts) Rules 13 in 2005 where Civil case types are
divided into four tracks under Rule 3(1) where Track-I
ou
The most commonly and most rightly stated cause for

includes: Maintenance, Child custody, Appointment of pendency is the insufficient appointment of judges and
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guardian and wards visiting rights, Letters of the inefficiency of courts due to the burden so caused.
Administration, Succession Certificate, Recovery of Currently, the total approved strength of judges across
na
Rent and Permanent injunction; Track-II includes: all the High Courts in the country along with the total
Execution Cases, Divorce and Ejectment; Track-III number of judges approved for the Supreme Court is
io
includes: Partition, Declaration, Specific Performance, 1079 and vacancy as per the approved strength i.e. the
nt
Possession, Mandatory Injunction, Appeals, Damages, number of seats failed to be filled with respect to the
Easement, Trade Marks, Copy rights and Patents; and number of appointments approved is 427 as on 1-09-
er
Track-IV includes such matters that are not included 2018.14 Thus, an astounding 39.57% of the judges to be
under the first three tracks. The maximum time limit for
nt
appointed to the High Courts and the Supreme Court

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8 Common Cause v. Union of India (1996) 4 SCC 33 No LAW 294 LAC 2005, 29December,2006)
Th
9 Common Cause v. Union of India (1996) 6 SCC 775 <http://karnatakajudiciary.kar.nic.in/govtNotifications/gon

10 Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 otfn5.pdf> accessed 31 August 2018
11 Raj Deo Sharma v. State of Bihar, (1999) 7 SCC 604 14 Ministry of Law and Justice Department of
12 P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC justice, 'Vacancy positions as on 1-09-2018 ' (Appointment of
578. Judges ,31-08-2018) <http://doj.gov.in/appointment-of-
13 The High Court of Karnataka, 'Karnataka (Case Flow judges/vacancy-positions> accessed 1st September 2018
Management in Subordinate Courts) Rules, 2005'(Notification
*
160
never get appointed or the appointment is inordinately adjournments is the biggest factor that contributes to
delayed. The scenario in the subordinate courts too is inordinate delays in the proceedings of a case and hence
similar, most recent reports suggest that the vacancy of the backlogs. Adjournments are provided for many
judges at the lower courts stood at 5,92515 where the reasons, some of which may be on reasonable grounds
total number of judges approved to be appointed was but most are provided even on trivial grounds such as
22,677 and that there were only 16,693 judges the counsel appearing before the court is not prepared
throughout all the lower courts in the country. 16 The or/and even due to the reason of absentee counsels.
ce
Judge to population ratio i.e. the number of judges per Adjournments are provided in civil cases under Rule 1,
1,00,000 people, on an average throughout the world Order XVII of the Code of Civil Procedure, 1908 and
en
was 6.38 in the year 2000 according to the World Bank in criminal trials under Sec. 309 of the Code of Criminal
but the corresponding number for India was 2.7 Procedure, 1973, they are supposed to be provided only
ud
judges. 17 One can only assume that the Judge to when the court deems it fit to delay or postpone the
population ratio has only declined over the years hearing based on grounds that are duly to be recorded.
pr
keeping in mind the enormous vacancy rates. It is The courts have also been given power to adjourn
ris
obvious form these statistics that an average judge in the proceedings subject to the payment of costs by the party
Indian judiciary is overburdened which not only affects requesting for such adjournment. It is an unfortunate
Ju
the number of cases that account as backlogs but also fact that there is lethargic attitude in both the Bar and
the quality of justice dispensed. the Bench in this regard and adjournments are provided
&
without much enquiry into the reasons as to why it must
Similarly, one might argue that disregard to existing be granted.
aw
guidelines with respect to the time frames within which
cases are to be dealt with is one of the main causes for In furtherance, some jurists have also criticized the
backlogs. This can be substantiated with the example of Judge-Advocate relationship wherein it is observed that
L
the Karnataka Case Flow management rules given in the advocates often tend to use their general cohesiveness
of
previous section where the maximum time limit for any which is embodied through local Bar associations to
case type is 24 months or two years however, 3,45,31918 persuade the bench to consider their demands often
al
civil cases are pending across all the subordinate courts though bandh (general strikes), boycotts etc. 20 thus
rn
in the state and 20,22419 case out of them have been making the judges use the powers given to them by law
pending for more than a decade. in a cautious manner which tends not to offend the Bar.
ou
This aggravates the problem of adjournments.

Other reasons such as apathy towards use of technology Furthermore, measures such as plea-bargaining which
lJ
in justice deliverance, absence of work culture in court were supposed to reduce pendency in criminal trials
rooms, inadequate infrastructure and ill-trained staff are have failed to deliver any substantial results.21 Also, the
na
considered to add to the already existing problems, litigiousness of the Indian population is considered to
however, any person who has visited a court in India be a factor in this regard.22 With this, one can say that
io
would say that the problem of unnecessary

nt
15 Apoorva Mandhani, '5,925 Judicial Officer Vacancies in 18 Ministry of Law and justice (n 6)
er
Lower Courts: Govt In Lok Sabha' (Live Law, 8 February 19 Ibid

2018) <https://www.livelaw.in/5925-judicial-officer- 20 Robert Moog, 'Delays in the Indian Courts: Why the
nt
vacancies-lower-courts-govt-lok-sabha/> accessed 1st Judges Don't Take Control' [1992] Vol 16(1) The Justice
September 2018 System Journal 28-29
eI
16 Pradeep Thakur, 'Vacancies in lower courts at all-time 21 See Rajat Bawaniwal, 'Plea Bargaining in The Indian
high ' (The Times of India, 1 January 2018) Criminal Justice System: An Analysis' [2017] 1(1) The World
Th
<https://timesofindia.indiatimes.com/india/vacancies-in- Journal on Juristic polity 10

lower-courts-at-all-time- 22Robert Moog, 'Indian Litigiousness and the Litigation
high/articleshow/62320296.cms> accessed 1st September Explosion: Challenging the Legend' [1993] 33(12) Asian
2018 Survey, University of California Press 1136-1141
17 Arnab Kumar Hazra and Bibek Debroy, ‘Introduction:
Issues and Aspects of Judicial Reforms in India’ in Judicial

Reforms in India, Issues and Aspects (1st ed) 2007
*
161
the problem of delay and backlogs are caused due to the 21 of the Constitution by the Supreme Court in various
above-mentioned factors coupled with some attitudinal cases including the landmark cases of Hussainara
problems of both the Bar and the Bench. Khatoon & Ors. v. Home Secretary, State of Bihar,27
Kartar Singh vs State of Punjab,28 Raj Deo Sharma v.
THE IMPACTS OF DELAYS AND State of Bihar, 29 A.R Anthulay v. R.S Nayak 30 and P.
ARREARS Ramchandra Rao v. State of Karnataka.31 It was in the
P. Ramachandra Rao case that the Judiciary iterated in
The impacts of the problem of delays, arrears and
ce
clear words the importance of the right to speedy trial
backlogs are multidimensional, the consequences of the
and in doing so it observed as follows:
en
persistence of these problems are not only harmful to
the judicial system but also is demoralizing to the “The mental agony, expense and strain which a person proceeded
ud
common litigants. Not only does the credibility of the against in criminal law has to undergo and which, coupled with
judiciary decline with the mounting burden of backlogs delay, may result in impairing the capability or ability of the
pr
on judges, it also adversely affects the rights of the accused to defend himself have persuaded the constitutional courts
parties involved. The world bank ease of doing business of the country in holding the right to speedy trial a manifestation
ris
index placed India at 134th position out of 189 countries of fair, just and reasonable procedure enshrined in Article
in the year 201423 and the main reasons stated for such 21. Speedy trial, again, would encompass within its sweep all its
Ju
an abysmal position for India was large pendency of stages including investigation, inquiry, trial, appeal, revision and
cases in Indian courts and non-implementation of re-trial in short everything commencing with an accusation and
&
judicial reforms.24 However, the rank for India in ease expiring with the final verdict.”32
of doing business has gone up to 100th position in the
recent 2018 World Bank Index25 due to other reforms
not related to the Judiciary, the problem of backlogs and
arrears continue to persist and is probably the reason
L aw
However, it is an unfortunate fact that is evident from
the number of criminal trials that are pending before the
courts that though the judiciary is sensitive to the plight
of
why the rank is still in the triple digits. of the common litigants, it is unable to act in its capacity
of the ‘sentinel on the qui vive’ as the guardian of the
al
The worst effected among all due to the problem of rights of the people and this is ironic as it was the
arrears are under-trial prisoners, accused in criminal judiciary that constructed this unnamed right under the
rn
trials and the prison system in itself. Among the fundamental right to life and personal liberty.
2,76,38,938 cases that are pending before all the courts
ou
in the country, 1,93,12,097 are criminal cases, this The aftermath of the failure to address criminal trials in
amounts to an astounding 69.87% of all the cases an effective manner is the increase in burden for the
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pending and 16,93,418 criminal cases have been pending prison system and the violation of the rights of under-
na
for decades. 26 One has to look at these phenomenal trial prisoners thereof. As on 2015, 67% of all the
numbers while keeping in mind that the ‘right to speedy prisoners in India were under-trial prisoners33, that is to
io
trial’ is a fundamental right that has been read into Art. say that around 2/3rd of all the prisoners in India are still
nt
23 The World Bank, 'Doing Business 2014 Understanding al-Reports/English/DB18-print-report.pdf> accessed 2nd
er
Regulations for Small and Medium-Size Enterprises'(Ease of September 2018

Doing Business index, 2014) 26 Ministry of Law and justice (n 6)
nt
<https://openknowledge.worldbank.org/bitstream/handle/ 27 Hussainara Khatoon & Ors. v. Home Secretary, State of
10986/16204/19984.pdf?sequence=> accessed 2nd Bihar, AIR 1979 SC 1369

eI
September 2018 28 Kartar Singh vs State of Punjab, (1994) 3 SCC 569

24 Department of Justice, A Study on Court Management 29 Raj Deo Sharma (n 10), para 11
Th
Techniques for Improving the Efficiency of Subordinate Courts 30 A.R Anthulay v. R.S Nayak, (1992) 1 SCC 225
(submitted by NALSAR University of Law),2016 31 P. Ramchandra Rao (n 12), para 1

25 The World Bank, 'Doing Business 2018 Reforming to 32 Ibid
Create Jobs' (Ease of Doing Business index, 2018) 33 The Ministry of Home Affairs, 'Prison Statistics
<http://www.doingbusiness.org/reports/global- India' (National Crime Records Bureau, 2015)

reports/~/media/WBG/DoingBusiness/Documents/Annu <http://ncrb.nic.in/StatPublications/PSI/Prison2015/CH
APTER-3.pdf > accessed 3rd September 2018
*
162
facing trial and have not been convicted. There are more Iyer’s Justice at Crossroads and so on. If one were to go
than twice the number of under-trials in prisons than through these works, one would find that the most
convicts. This trend had continued throughout the evident recommendations given in all or most of these
decade from 2005-201534 and there is no reason for one works point towards better appointment of judges,
to believe that the percentage of under-trial prisoners increasing the age of retirement of judges, increasing the
has dropped in the last three years. This has caused number of working days by decreasing vacation period,
congestion in jails due to lack of infrastructure, creation of new benches and setting up of non-binding
ce
disproportionate inflow of inmates and non-granting of time frames, digitization of the justice delivery system
bail when necessary. etc. While these recommendations are commendable
en
and virtuous, they do not seek to make attitudinal
There are also other serious negative impacts such as changes in the Judiciary i.e. they recommend structural
ud
reduced access to justice for the normal people due to change and procedural change.
stigmatization of the idea of approaching courts i.e. the
pr
abhorrent attitude of the people towards the judiciary’s The recommendations so for put forth by the Law
sloppiness. Creation of constant hassle for the victim in Commission and the academia, to the credit of the
ris
criminal trials and the under-reporting of crimes due to administration have been taken seriously yet
the fear of such hassles and so on. unfortunately have failed to give any substantial result
Ju
for one key factor has been ignored and that key factor
This failure to redress civil cases and especially criminal is that the rules, regulations and action plans formulated
&
cases in a timely fashion has clouded the altruistic work on the basis of these recommendations do not
done by the Indian judiciary in many other aspects and
aw
constantly nudge the judiciary to implement them on a
has cast a bleak shadow on the public, thus belittling its perpetually continuing manner i.e. the framework
image before the common man to a completely created based on these recommendations do not
L
ineffective or failed organ of the state despite its vast incentivize the Judiciary to stick to the path on which
of
intellectual prowess. this problem could be solved and they do not wish to
change the mindset of the stakeholders involved. At the
POSSIBLE SOLUTIONS AND
al
same time, it would be unreasonable for one to claim

CONCLUSION
rn
that no progress has been achieved, the situation of the

Pendency and arrear of cases in the judiciary is not a Judiciary would have been at a much more precarious if
ou
new issue, it has successfully captivated the attention of not for the good amount of progress made due to the
eminent jurists, scholars, judges and both governmental reforms so recommended.
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and non-governmental bodies since independence.

However, considering the fact that the problem of
na
Many reports, myriad academic papers and some books

backlogs and arrears still continue to persist at a rampant
have addressed this issue and have pointed out to us that
rate, it is not right for us to be satisfied with the fact that
io
such a phenomenon is detrimental to the judicial system

the reforms that have been made so far have
and much needed insights on this issue were given
nt
considerably mitigated what could have been, there is a

thereof.
necessity to formulate a framework for the judiciary
er
Our understanding of the issues of backlogs and arrears that, in due course of time, solves the issue of backlogs
and arrears. This can be done only when the framework
nt
in the judiciary has grown leaps and bounds from the

first time it was taken into cognizance in the High so formulated strives to nudge both the Bar and the
eI
Court’s Arrears Committee in 1949 to The Law Bench toward the common goal of ending backlogs.
Commission’s 14th, 27th ,77th , 230th and 245th Reports
Th
The following are a few suggestions that one could

and other works by jurists such as Dr. Upendra Baxis’s
consider for the formulation of such a framework:
The Crisis of the Indian Legal System, Justice V.R Krishna
34Amnesty international India, ' A study of Pre-trial <https://amnesty.org.in/justice-trial-study-pre-trial-

detention in India' (Justice Under Trial, 2017) detention-india/ > accessed 3rd September 2018
*
163
 Setting up of Case Flow Management Boards: impact of the advice tendered by his counsel. When
the advice tendered by the board and the counsel
Case flow management and the adherence to the differs or conflicts, it is ultimately the litigant’s
guidelines with regard to time frames as mentioned choice to exercise his right or not.
earlier has been an issue. An expert advisory body
consisting of retired judges and selected members The rationale here is to reduce the number of cases
of the bar could be constituted at each subordinate that are instituted in the first place thus giving the
ce
court under a statute formulated by the State courts some breathing space to conduct quality
governments with the advice of the High Court of proceedings and to dispense qualitative justice for
en
that State where in the board so constituted would already existing cases.
have the power to conduct a preliminary
ud
examination of the facts and merits of a case  Functions in Criminal Cases:
before it is admitted to the court within a fixed
The board in criminal cases would have the power
pr
time period which it fixes for itself for each case
to conduct hearing before charge where it allows the
type.
ris
defense and the prosecution to summarily put forth
their case with in a specific time frame set by the
 Functions in Civil Cases:
Ju
board itself based on the offences the accused has
The board so constituted would, after the allegedly committed.
&
examination of the facts and merits of the case in a
The board, upon hearing both sides may advice the
very expeditious manner could determine if the case
aw
accused to opt for plea bargaining under Section
has enough merit to be admitted to the court or not,
265A to 265 L of the Code of Criminal Procedure,
if yes, the board may tender advice to the litigants
1973 if it believes prima facie that the accused has
L
in a civil litigation to proceed and get the case heard
committed the offence. The advice is completely
of
before the court or to opt for Alternate Dispute
persuasive and the accused is in no way obligated to
Resolution Mechanisms, if not, the board may
go for plea bargaining, the defense counsel’s role is
al
advice the litigants not to proceed to court. If the

of paramount importance here as he is responsible
litigants still decide to go to court for redressal, the
rn
to advice the accused as to what is best for him. If

board may send a copy of their advice given to the
the accused chooses to go for trial, the board shall
litigants along with a report on the preliminary
ou
send a report to the judge allotted to hear the case

examination conducted by it to the judge who is
which contains information such as summary of
allotted to hear that case. This allows the court to
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facts, charges that maybe framed and so on that

dispose off cases at a much faster pace. The same
na
could help the Judge have a better understanding of

reports are also sent in case where the board deems
the case but these reports should strictly not have
it necessary the court hear the case. The advice
io
information that could influence the Judge’s

tendered by the board to the litigants are
perception on the accused ir anything that could
nt
deliberately just persuasive as making it binding

tamper the verdict of the case. If the board believes
would infringe the litigant’s right to legal redressal.
er
that the accused may not have done the offence, it

Some might argue that the counsels for the litigants would not create any obstruction the case to be
nt
can tender the same advice and that the advice of heard by the appropriate court. In cases where there
is a possibility of capital punishment or life
eI
the board would have no effect on the litigants as it

is only persuasive in nature. However, from the imprisonment, the board would be obligated not to
Th
perspective of the litigant, it is the advice tendered recommend plea bargain as the gravity of the
by a statutory expert body consisting of retired offences allegedly committed would require a
judges and selected members of the Bar who have detailed trial.
considerable experience, this would definitely have
a larger impact on the litigant compared to the
*
164
Once again, when there is a conflict between the advice counsels keeping in mind not to delay the case even
of the board and the advice of the defense counsel, the more and hence the nominal number of days as
ultimate decision to take the plea bargain route or not is suspension.
taken by the accused himself. The fact that the advice of
a statutory body of experts having more impact on the Conclusion:
accused than his counsel will still be relevant.
The problem of backlogs, delays and arrears have
plagued the Indian Judiciary since its inception, till date,
ce
Here too, the rationale is to reduce the number of cases
that reach trial by the usage of plea bargaining so that we have not been able to find a solution to these
en
the courts could provide for qualitative dispensation of problems as the framework in which the judiciary
justice for the cases in hand at the same time reducing operates has scope for some to be lethargic and to
ud
pendency. inordinately delay the dispensation of justice. The
reforms undertaken previously have tried to usher in
pr
 Regulatory Functions: procedural or structural change in the judiciary and very
little attempts have been made to create a framework
ris
The Board shall also perform the function of that brings about an attitudinal change in all the
formulating detailed case-specific timetables based stakeholders involved and that tries to preserve such
Ju
on the already existing time frames mentioned in the changed attitude the persistence of which could solve
case flow management rules which are to contain completely or to a large extent the problem of pendency,
&
even the tentative timings of the hearings. These arrears and backlogs. The suggestions proposed above
time tables are to have provisions for a maximum along with the already existing measures such as
aw
limit of adjournments based on the case type. These appointment of additional judges etc. could allow the
timetables are to be provided to the counsels judiciary to achieve such attitudinal change, to reach
L
appearing before the court and to the judge allotted extremely low levels of pendency and to sustain the
to hear the case, this too would have a persuasive
of
same.
value vis-à-vis the judge but not for the counsels i.e.
the judge may give more time to a case upon his
al
discretion but the counsels have to adhere to it if no

rn
such extensions are given by the judge, they might

also be fined for not adhering to such timetable by
ou
the board upon the directions of the judge hearing

the case.
lJ
na
The board would display the names of absentee

counsels for the preceding working day next to the
io
cause list displayed at the entrance of the court hall

before which he/she was supposed to appear along
nt
with the number of times a counsel has been absent

er
for the hearing of that particular case. In case, a

counsel is absent to the hearing of a case thrice, a
nt
warning would be issued by the board to the counsel

stating that he/she would be suspended from
eI
appearing before the specific court hall to which

Th
he/she has been absent, a similar warning would be

sent by the board on the fourth subsequent instance
too, suspension would be for a period not less than
5 days and not more than 10 days the fifth time
he/she is absent. The board should suspend
*
165

RISHABH SINGH
INTRODUCTION ‘wa min aayatehee un-khalaka-lakum minas fose kum azwajau

letaskonoo aeliha wa jala bynakum moaddatawn we rahma mna
ce
Triple talak has been in the lime light in India for years fee saleka layateellaykum meen yata fak karoon’
en
for its controversies and the politics over the
pronounced of talak and naming it as injustice to the Which means ‘it has been maintained by jurists that
a marriage under the muslim law is an act of quiet
ud
Muslim women. In this paper firstly we will briefly
discuss about the basic idea of Marriage in Muslims, of minhd in them1, and he put between you and love
and compassion. Surrely there are signs in this for
pr
Divorce and what different types of divorce are and then
we will discuss about Triple talak, and we will discuss a people who reflect2’
ris
that how the Triple Talak is being followed in India and
DIVORCE (TALAK)
the other Muslim dominated countries, are they
Ju
following or not this practice. We will also discuss the In Islam when marriage is terminated by husband is
validity of triple talak according to Holy book of Quran termed as TALAK. In Islam the power of the husband
&
and According to different schools of Muslim law. We to terminate the marriage is absolute, although many
will also discuss about the Muslim women (Protection
aw
muslim schools have imposed conditions on the
of Rights on Marriage) Act, 2017. L exercise of the power of the husband.
MARRIAGE & DIVORCE Talak in its original sense means repudiation or

of
rejection, but under Muslim law it is a release for the
MARRIAGE marriage tie either immediately or eventually. According
al
to Muslim law a husband who is of sound mind and has

In this we will discuss briefly about two things what is
attained puberty may divorce his wife whenever he
rn
basic concept of marriage in Muslim laws and divorce

desires, without assigning any reason at his mere, but in
and forms of divorce.
shai school valid intention should be there for a valid
ou
The Quran says that the marriage in Muslim is a religious divorce.

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duty as well as a contract. It is said to be contract

Sura-Al-Baqarah, Ayyat No.226 says
because it is offer made by a party to the other for
na
marriage and the other party has liberty either to accept ‘lillatheena yu/loona min nisa-ihimtarabbusu
or reject the offer. The consideration is the dower which arbaAAati ashhurin fain faoo fa-inna
io
a husband has to pay to his wife. Akkahaghafoorun raheemun 3

nt
It is said to be religious duty because in Muslims the Which says as ‘for those who take an oath for
er
marriage is for the ‘SUKUN’, ‘MUADDAT’ and abstention from their wives, a waiting for four
‘REHMAT’ and has been discussed in the part 21,
nt
months in ordained; if then they return, Allah is oft-

chapter20, verse21 forgiving, most merciful’
eI
Islam has divided the modes of Talak into two parts, i.e,
Th
1 ABDURR RAHIM, Principles of Mohammedan 3DR. HEMA V. MENON, Law of Marriage and Divorce in
Jurisprudence 327(1911) India Part-II 70 (ALL INDIA REPORTERS, Nagpur) (2013)
2 M.A. QURESHI, Muslim Marriage, divorce and
Maintenance 55-56(Deep &Deep Publications,
N.Delhi)(1992)
*
166
collective dominance and unfair trade agreements that discounts to consumers as a way of expanding the
had lasted from 1983 to 1986 were recognized by the customer base. However, the same cannot be said about
courts, and they were fined with 7,000,000 ECU, independent taxi drivers, cab owners and other small
4,700,000 ECU and 1,700,000 ECU respectively. 17 enterprises. Despite this fact being evident, the courts
European laws recognize the fact that two independent have allowed the companies to run their businesses,
economic entities, when linked by economic interests, merely on the basis of a technicality.20 This implies the
can come together and assume a dominant position vis- fact that the judicial institutions only credit market share
ce
à-vis their competitors. For this, two factors must be as an indicator of a dominant position. Therefore, it
established- (i) The existence of the collective entity, and allows the enterprises to carry out unfair trade practices,
en
(ii) The fact that such an entity holds a dominant merely because no action is taken up against them as the
position in the market. 18 The rationale behind such a “abuse of dominant position” cannot occur without the
ud
decision, is sound, and worthy of being incorporated prima facie establishment of the existence of a dominant
into the Indian legal system. position. This form of adjudication begs for a question,
pr
that will such abuse only be punished when, upon
Very recently, the Ministry of Corporate Affairs,
ris
extensive use of such practices, the enterprises will
Government of India, issued a notification, which has become so affluent and wealthy, that they will inevitably
scrapped the filing timeline of 30 days from the date of
Ju
become “dominant” as prescribed within the strict
the trigger document. This proves that the ministry is boundaries of the definition inscribed in the act, and
relaxing certain rules to make it easier to operate, and is
&
only then shall the court take any cognizance of their
encouraging the expansion of the scope of application anti-competitive practices?
aw
of the Competition Law. In fact, Chief Justice K.G.
Balakrishnan has stated that reliance on precedents from If such actions are ignored for a long period of time,
other nations is essential in certain categories of until the aforementioned scenario takes place, and the
L
adjudication.19 Conforming to his words, and relying on enterprise or enterprises inevitably assume a “dominant
of
the sound jurisprudence of the foreign statutes, India position”, that the court shall deem upon the calculation
must recognize collective dominance as a practice that of their market share, they already would have
al
is exploiting the loopholes and shortcomings in our eliminated most of their competitors, and would have
rn
statutes to engage in anti-competitive practices. . taken steps to extract profits by whatever means
necessary; by compromising ethics, welfare of the
ou
Another deeply flawed aspect of CCI’s functioning, is consumer, economic health of the nation and the quality
that market share is the sole determinant of establishing of the products or services offered. Would
lJ
whether an enterprise is dominant in a market or not. In precautionary measures not be a more appropriate
the infamous Ola and Uber proceedings, wherein the option, instead of allowing the enterprises to annihilate
na
enterprises were accused of adopting predatory pricing, the market in question, and only then take punitive
thereby depicting anti-competitive behavior, the Delhi
io
measures? Preventing the damage in the first place,

High Court held that since the firms did not hold a instead of replenishing the competitive spirit of the
nt
“considerable market share”, they could not be deemed market, and its engagement with consumers after the
to be “dominant”, and since they did not hold the damage has been done, seems a more viable option.
er
dominant position, they could not abuse it. Though on

nt
the offset, Ola was prima facie found guilty, the

investigation in this respect still continues. Both the
eI
companies have deep pockets that can withstand heavy

Th
17 Societa Italiana Vetro SpA v. Commission, ECR II-1403 20P. Singh, “The price of unfair competition”, The Hindu,
(1992). September 6, 2016. Accessed November 17, 2017.
18 Hoffmann La-Roche v. Commission, ECR 461 (1979). . http://www.thehindu.com/thread/economy/the-price-of-
19 Chief Justice K.G. Balakrishnan, “The Role of Foreign unfair-competition/article14624972.ece
Precedents in a Country’s Legal System”, Lecture at
Northwestern University, Oct. 28, 2008. .
*
74
or is not, affirmed by ‘hadiths’, in view of the The majority judges Justice Kurian Joseph, Justice U.U
enormous contradictions in the ‘hadiths’, relied Lalit and Justice R.F.Nariman.J gave their judgment
upon by the rival parties. declaring triple as unconstitutional. We will discuss the
(4) ‘Talaq-e-biddat’ is integral to the religious main points what did the three judges said about this
denomination of Sunnis belonging to the Hanafi practice and the why they consider it to
school. The same is a part of their faith, having been unconstitutional.
followed for more than 1400 years, and as such, has
B. JUDGEMENT OF MAJORITY 6
ce
to be accepted as being constituent of their
‘personal law’. JUSTICE KURIAN JOSEPH7
en
(5) The contention of the petitioners, that the
questions/subjects covered by the Muslim Personal He started by saying “What is bad in theology was
ud
Law (Shariat) Application Act, 1937, ceased to be once good in law but after Shariat has been
‘personal law’, and got transformed into ‘statutory declared as the personal law, whether what is
pr
law’, cannot be accepted, and is accordingly Quranically wrong can be legally right is the issue
to be considered in this case”.
ris
rejected.
(6) ‘Talaq-e-biddat’, does not violate the parameters
He said that “The Holy Quran has attributed sanctity
Ju
expressed in Article 25 of the Constitution. The
practice is not contrary to public order, morality and and permanence to matrimony. However, in extremely
unavoidable situations, talaq is permissible. But an
&
health. The practice also does not violate Articles
14, 15 and 21 of the Constitution, which are limited attempt for reconciliation and if it succeeds, then
aw
to State actions alone. revocation are the Quranic essential steps before talaq
(7) The practice of ‘talaq-e-biddat’ being a constituent attains finality.51 In triple talaq, this door is closed,
hence, triple talaq is against the basic tenets of the Holy
of ‘personal law’ has a stature equal to other
L
fundamental rights, conferred in Part III of the Quran and consequently, it violates Shariat.”
of
Constitution. The practice cannot therefore be set He writes that under Article 25 everyone has right to
aside, on the ground of being violative of the
al
possess any religion but this write is not absolute

concept of the constitutional morality, through fundamental right and has some restriction, anything in
rn
judicial intervention. this Article should not violate

(8) Reforms to ‘personal law’ in India, with reference to
ou
socially unacceptable practices in different religions, 1. Public order,

have come about only by way of legislative 2. Health, and
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intervention. Such legislative intervention is 3. Morality.

na
permissible under Articles 25(2) and 44, read with

entry 5 of the Concurrent List, contained in the He says “Except to the above extent, the freedom
of religion under the Constitution of India is
io
Seventh Schedule of the Constitution. The said

procedure alone need to be followed with reference absolute and on this point, I am in full agreement
nt
to the practice of ‘talaq-e-biddat’, if the same is to with the learned Chief Justice. However, on the
statement that triple talaq is an integral part of the
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be set aside.
(9) International conventions and declarations are of religious practice, I respectfully disagree.”
nt
no avail in the present controversy, because the And he held it to be unconstitutional by saying that
practice of ‘talaq-e-biddat’, is a component of
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“What is held to be bad in the Holy Quran cannot

‘personal law’, and has the protection of Article 25 be good in Shariat and, in that sense, what is bad in
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of the Constitution. theology is bad in law as well.”
6Supra note 4, at 273-393 7 Supra note 4, at 273-293
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JUSTICE U.U LALIT & JUSTICE NARIMAN8 70 years old and where formed out of India as nation
for only Muslism.
Both the judges held that it unconstitutional under the
violation for Part III of the constitution. They say that IRAQ10
law doesn’t care if it is in Quran or not but if it violates
Part III it is unconstitutional. Iraq is a theocratic State, which declares Islam to be its
official religion. The majority of Iraq’s Muslims is Shias.
They say that “Given the fact that Triple Talaq is On the issue in hand, Iraq amended the code of personal
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instant and irrevocable, it is obvious that any law in the year 1987. It amended and enacted Article 39
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attempt at reconciliation between the husband and which stated that “When a person intends to divorce his
wife by two arbiters from their families, which is wife, he shall institute a suit in the Court of Personal
ud
essential to save the marital tie, cannot ever take Status requesting that it be effected and that an order be
place.” issued therefor. If a person cannot so approach the
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court, registration of the divorce in the court during the
“it is clear that this form of Talaq is manifestly period of Iddat shall be binding on him.
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arbitrary in the sense that the marital tie can be
broken capriciously and whimsically by a Muslim The certificate of marriage shall remain valid till it is
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man without any attempt at reconciliation so as to cancelled by the court.
save it. This form of Talaq must, therefore, be held
The clear intension of the enactment was that every
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to be violative of the fundamental right contained
under Article 14 of the Constitution of India”. divorce has to go through the court of law, it can be also
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seen that every marriage should have a certificate of
Therefore, after this case in India the Talak-Ul-Biddat marriage and it remains valid until the court by its order
was made unconstitutional and the judgment Part III cancels it which clearly means that even if a person gives
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clearly mentioned about the practice of Talak-Ul-Biddat divorce he has to has get his certificate cancelled. The
of
in other parts of the world and it also played a major role second Islamic Countries we would discussing is United
in framing of the judgment. So now we would be Arab Emirates
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discussing about the laws and rules regulating this

INDONESIA11
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practice in major Islamic countries.

The Constitution of Indonesia guarantees freedom of
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TRIPLE TALAK IN ISLAMIC

religion to its citizens. However, the Government
COUNTRIES 9
recognizes only six official religions – Islam,
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The practice of Talak-Ul- Biddat which more than 22 Protestantism, Catholicism, Hinduism, Buddhism, and
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Muslim dominated nations have abolished it and Confucianism. Muslims of the Sunni sect constitute its
regulated it yet none of them have made it a criminal majority of the population. On the issue in hand, it has
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offence. Islamic countries like Iraq, Indonesia and the following legislation in place:
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Pakistan & Bangladesh have passed certain legislation

Marriage Regulations 1975 Regulation 9 of 1975
which has regulated this practice. All these countries
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were taken in consideration in the cases of Shyara bano. The Article 14 of the Act mentions that a man married
The reason to study these countries are that the Iraq is
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under Islamic law wanting to divorce his wife shall by a

a Shia Dominated population country and was under a letter notify his intention to the District Court seeking
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monarchy for decades. While Indonesia on other side a proceedings for the purpose of divorce. The Article 15
Sunni dominated population country and has the largest states that on receiving a letter the court shall within
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Muslim population in the world. The reason to study

Pakistan & Bangladesh is that both the countries are just
8
Supra note 4,, at 293-393 10 Supra note 4, at 34
9 Supra note 4, at 33-45 11 Supra note 4, at 41
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169
thirty days summon the parties and gather from them all In all the above Islamic countries we have discussed they
relevant facts related to the matter in proceedings. all talk about the process of divorce going through the
court of law. As we have seen that there has been no
Article 16 states that if the court is satisfied of the penal provisions related to the form of divorce. There
existence of any of the grounds and is convinced that no has been only one penal provision in all the statutes
reconciliation between the parties is possible it will allow discussed of different countries and that is discussed
a divorce and then as per Article 17 the court will under section 7 of Muslim Family Laws Ordinance
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Immediately after allowing a divorce the court shall issue 1961, Bangladesh states about that if a person doesn’t
a certificate of divorce and send it to the Registrar for follow the process of law he shall be punished with
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registration of the divorce. It is very clear with the simple imprisonment.
provisions that any case of divorce must go through the
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court of law and it is the court which will give order for Now we shall discuss about the Muslim Women
cancellation of marriage certificate. (Protection of Rights on Marriage) Bill, 2017 which talks
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about making triple talak void and penalizes the act.
PAKISTAN AND BANGLADESH12
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THE MUSLIM WOMEN (PROTECTION
Both are a theocratic States, wherein Islam is the official
OF RIGHTS ON MARRIAGE) BILL, 2017
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religion of the state. In both the countries, Muslims of
the Sunni sect constitute the majority of the population. The bills preamble states that “to protect the rights of
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Pakistan enacted Muslim Family Laws Ordinance 1961 married Muslim women and to prohibit divorce by
Ordinance VIII of 1961 and which was amended by pronouncing talaq by their husbands and to
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Bangladesh (after getting independence in 1971) with provide for matters connected therewith or
Ordinance 114 of 1985 (Bangladesh changes noted L incidental thereto.” The government at the Centre
below relevant provisions) the section 7 of the Act talks which pledges about the concept of Uniform Civil Code
about the process of the divorce.
of
(UCC) marked this bill as their first step towards it. The
bill was introduced in the Lok Sabha on 28th December
Section 7 staes that if any man who wishes to divorce
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2017, the bill was prepared inter-ministerial group

his wife shall, as soon as may be after the
headed by Home Minister Shri Rajnath Singh, making
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pronouncement of Talaq in any form, shall give the

instant triple talaq or talaq-e-biddat in any form, spoken,
Chairman a notice in writing of his having done so and
in writing or by electronic means such as email, SMS and
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shall also supply a copy thereof to the wife.

WhatsApp as "illegal and void" under section 3 and
provides for a jail term of upto three years and fine for
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For once in all the countries discussed above in this Act

only there is provision of simple imprisonment. Under the husband under section 4. Sections 5 and 6 which
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section 7(2) of this Act states that “whoever contravenes discuss post-divorce issues such as a “subsistence
the provision of sub-section (1) shall be punishable with allowance” for the woman upon whom instant talaq “is
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simple imprisonment for a term which may extend to pronounced” and the “custody of her minor children.
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one year, or with fine which may extend to five thousand

Ascribing criminal nature to any matrimonial offence
rupees, or with both
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has always remained a contentious issue as many

The section says that within thirty days of the receipt of contentions have been raised against the section 498A
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notice the Chairman shall constitute an Arbitration of the IPC which makes adultery a criminal offence.
Since the beginning of the issue, many scholars and
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Council for the purpose of bringing about reconciliation

between the parties, and the Arbitration council shall academicians have suggested that rather than
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take all steps necessary to bring about such criminalization the act, it should have adopted the path
reconciliation. of including it as an act of infliction of domestic violence
under the ambit of the Domestic Violence Act, 2005
12 Supra note 4, at 45
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170
wherein it could have been categorized as verbal and mentioned. What if a person is from a poor family and
emotional abuse, covered under S.3 of the said Act. This is alone earning member in the family, what will happen
would have opened up the door of multiple reliefs like to the family and who will his wife and children survive?
protection against violence, maintenance, medical Big questions were never answered in the Lok Sabha and
facility, right to residence in the marital home and the bill hurried through for getting a political millage as
compensation, etc. Although the bill talks about the election were approaching.
compensation to the women and also the custody of the It highly recommended that in order to achieve the plan
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child to the women but having the criminal character is of UCC the government could have formed a bill which
itself a very flawed since the Muslim marriage is a civil could have actually transformed divorce procedure of
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contract and hence it must follow the civil procedure. the nation as followed under Muslim countries. The
But there is something which is clear and even the divorce process should have gone through court of law
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government has failed to address the issue that how a and only on the abolition of marriage certificate the
person who is imprisonment for 3 years will provide divorce could take place. This would have saved the
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maintenance to his wife and children, once the husband interest of Muslim women who are ill-treated and justice
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is sent to prison, the women would be deprived of could have been served but legislators had something
shelter and sustenance if the husband is unable to else in their mind. This bill will bring more injustice and
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support in the absence of any constant source of arbitrariness in the society.
income, when behind the bars. This would ultimately
CONCLUSION
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amount to indirect punishment to the whole family and
mostly the women and children.
We have seen that what is concept of marriage in
The criminal charge will also close the doors of all
possible reconciliations between the parties and this
penal policy can also be termed as interference in the
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Muslim and also talked about the different forms of
divorce. We read that Quran is quite on Talak-e-biddat,
India last year on 22nd August, 2017 made this practice
of
personal matters and this may also lead to have the of divorce as unconstitutional. A bench of five judges
effect of instilling a sense of insecurity and alienation decided on this matter and with a ratio of 3:2 declared it
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among the minority Muslim community. void. Then we also talked about three Islamic countries
(Iraq, Indonesia and Pakistan & Bangladesh). Then we
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Many intellectuals and many Member of Parliament also discussed about the triple talak bill passed by the
have recommended to make amendment in the bill as it
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Lok Sabha in the winter session. This topic has been in

many make more problems and chaos in the Muslim India since many years and after all political fights and
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community then preventing or addressing the problem. heated debate we have reached so far here. But yet many
In Lok Sabha debate the Member of Parliament from things are still left in to make our women equal in our
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Hyderabad raised the issue that as the Act of triple Talak society, give them respect and education would be the
is made void under section 3 of the Act how come a biggest tool to fight against injustice to the women.
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void act is being penalized as void Section 4 means

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something which has not happened and may be termed

as no effective. Then how an act which is non effective
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is penalized. The opposition also raised question that

even if a person is giving triple talak, what are his
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intensions, his intensions are to give divorce to his wife

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but this Act would not address to this problem but

instead make the person only criminal and the issue of
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divorce is not addressed and the marriage remains valid

and the person is send to the jail and he is also asked to
pay maintenance to the wife and is also a non- bailable
offence. So therefore a person is jailed and is asked to
pay his wife and children but from where? That isn’t
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REHABILITATION & SOCIAL RE-INTEGRATION OF

CHILDREN IN CONFLICT WITH LAW IN INDIA
SHUBHAM KHANNA
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INTRODUCTION juveniles fall in easy prey with criminality. He asserts that
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adolescents claim to be the highest share in violence due
The word juvenile originates from the Latin word to dashing personality, lack of foresight, uncritical
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“Juvenis” which means young. A child who has not enthusiasm, lack of foresight, physical strength,
completed 18 years of age is called a “Juvenile”. Every endurance and desire for adventure. 4
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child has a bright future. They represent the nation and
the coming future of the country. Supreme Court in one SITUATION IN INDIA
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of the landmark judgment titled as Gaurav Jain v. Union
of India1. India is the second largest country in terms of
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population as a developing country and thus it is
India has made and it still continues to make efforts in subjected to the impact of urbanization and
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the present but the efforts may be lukewarm. When the industrialization. Though much is being done in terms
crimes done by the Juveniles are arising alarmingly, is it of legislations and schemes to protect the children, the
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not that the child which is to be nurtured and blossomed efforts aren’t enough as the legislative intent remains
under the safeguard of parents. The presence of careful buried under the statute itself and its implementation
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child acts has not been in reflected in the last decade as remains just a dream for the children of our country.
it has witnessed a huge leap in the rate of juvenile India has made all efforts and ratified almost all United
of
offenders in India. According to the latest National Nations Convention on Child Rights but the efforts go
Crime Records Bureau, juveniles have been juvenile to drain due to poor implementation procedure by the
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enough to contribute to 1.2% of the total crimes in our authorities while rapid population growth. Due to
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country. Moreover, there has been a rise of 85% immense population, the problems of poverty,
between 2001 and 2011 in the crimes done by juveniles. corruption and illiteracy are cropping up which are
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In the year 2012 there were 27, 936 juveniles who were stumbling blocks for the achievement of targets set by
allegedly involved in crimes including murder, rape, and the legislation. “Sarva Sikhsha Abhiyan” puts up an aim
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rioting, according to NCRB2. It gets tough for the police to educate the people at large while Right to Education
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to deal with juvenile offenders because law possesses a has been made compulsory where all states are trying to
lot of restrictions. One of the six men in the case of make a goal by working towards providing education to
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Nirbhaya gang-rape in Delhi3, was a juvenile committing students Below Poverty Line (BPL) and others. It was
the crime. The juvenile walked away as a free man after also found that those children who were uneducated,
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three years at the reformatory home as per the Juvenile living Below the Poverty Line are suffering from
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Justice Act. The protests and out-cry regarding the violence at home and are likely to commit crime. Unless
failure of doing “Justice” to the juvenile made a change concentrated actions are taken for the eradication of
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in law as this demands were met by reducing the upper these causes such as violence at home, gender
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limit for the juveniles to 16 years, forgetting that discrimination, socio-structural atmosphere, illicit drug
Juvenility is a state of mind and not only a state of body. trade, natural calamities and various others, the problem
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According to Radzinowics, the neglected children and of children living in the streets cannot be solved. What
1Gaurav Jain v. Union of India, [1997] AIR, 3021. 3 Mukesh & Anr v. Govt. for NCT of Delhi & Ors, [2017]
2National Crime Records Bureau (Ministry of Home Affairs), Criminal Appeal No. 609-610.
4 Radzinowicz &Joan King, The growth of crime (1997) 17-
Government of India statistics (2017), 229-256.
20
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172
is needed is not just mere protection but also to enable the Right against personal liberty are mirrored in
them to stand on their own feet and support their family Articles14 to17 followed by Articles 21,23 and 24.
as what is expected of him or her in society. The
objective should be for the healthy development of a The concern for protection of child rights and welfare
child for which the concept of social integration in the has been discussed and addressed a number of times in
society matters. Social Integration in our country for the international sector and included in international
juveniles is not focused on, even after issuance of justice conventions which includes the UN convention of the
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in the society in order to set example for the rest, in the Rights of child (UNCRC), the UN standard minimum
course of setting example we often forget that the re- Rules for Administration of Juvenile Justice, the UN
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integration of a child in the society is also of prime rules for Protection of Juveniles deprived of their liberty
importance. The focus should be more on the and the Hague Convention on inter-country adoption.
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prevention and rehabilitation programmes. The Juvenile The UN millennium development goals have
Justice Act, 2009 is a laudable step but a lurking fear is contributed a major part in the protection of the rights
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that whether the state is fully conscious of the resources of the children. These conventions provide guidelines,
which are to be maintained by all the State parties in
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needed for the implementation and if so then we can
have the glimpse of ray of hope. achieving the best interest of a child. It focuses on social
reintegration of minor victims without taking up to
Ju
Importance of Rehabilitation judicial proceedings. The UNCRC covers the
fundamental rights of children, including the Right to be
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India has 19% of the world’s children and one-third of protected from economic exploitation and work causing
the country’s population, which is around 440 million,
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harm to the children, from all forms of sexual
is below 18 years. Children in India are the country’s exploitation and abuse, from both physical and mental
future because a stronger nation requires a healthy, well- violence and also ensuring that such children will be
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educated and protected child population who in future away from their family till the situations get solved. India
of
will be a productive asset for the nation. Resources in has taken up a number of laws and has brought down
India should be used on its children proportionately to policies for the assurance of the protection of children
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their population. In 2006 Ministry of Women and child and ways to improve their situation. Despite of the
development and HAQ: Centre of Child Rights
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efforts given by the government, international

calculated the total expenditure on children in the sector organizations and NGOs, there has been a part among
of health and education, and it was only 3.86% and a
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the children that has still not been under the ambit of
slight increase to 4.91% in 20075. It is to be noted that such programs. India has been a ground for multiple
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about 40% of the total population of children are diversities and a vast part of it has been contributed by
unprotected or face difficult situations. There has be an the people of the nation both, man-made and natural
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immediate rise in the expenditure for protection of diversification. The country acquires about 2.45 of the
children in order to safeguard their rights. The ignorance earth’s surface and has contributed about 17.5% of the
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of issues on child protection leads to massive population of the world. A decent population where a
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infringement of child rights and increases their huge percentage of the population stays below the
vulnerability to abuse and large scale exploitation. The poverty line and are deprived of employment, education
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constitution of India puts emphasis on the unprotected and basic necessities. The nation had about 17% urban
position of children in the nation. Article 15 of the
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population in 1951 and it increased to 28% in 20096 that

constitution assures a special focus on children by resulted in an unplanned increased urbanization and
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providing necessary and special laws to protect their increase of slum areas in cities. More than 1/3rd of the
rights. The Right to equality, life and personal liberty and population of Delhi is in slums. Most of the rural
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children in the hustle of urban population get trapped
5HAQ: Centre of Child Rights, Budget for Children in the

Union Budget (2017), 4-5 6 Kavitha B.D. & Smt. M.K. Gayathri: Urbanization in India
(2016) 25-27.
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173
among the fast growing city lives and fail to endeavor a joint family has started to disappear as the people have
and in the end fall into ignorance. Children who barely to started to build their own ways of living in the society.
receive any importance in their all-round development The first ever legislation for child welfare was the
in the poverty filled population, suffer the most. The ‘Apprentices Act of 1850’ which dealt with children
theory of children facing difficult circumstances was between the age of 10 to 18, who had committed minor
first brought out by World Summit for Children (WSC) offences. In 1876 the first special act for dealing with
in the year 19907. Before the enforcement of the summit the treatment of children committing petty offences
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the children in need were not recognized in the category was, ‘Reformatory Schools Act’. The first juvenile court
of ‘protected children’. There are no prominent statistics was established in Calcutta in the year 1914. The
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on how many of these children are affected and how children act on the dependency of the Reformatory
much is the value of the sum to be provided to them for Schools Act was set to power in Madras, Bengal and
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the degradation in the industrial and education sector in Bombay during 19209. In this act the affected children
the nation. Any violent crime affects the society not only were provided with residential care and protection and
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mentally but also for the composition of a healthy bred counseling. In Bombay the first children aid homes were
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society. Crime rates in India have increased since 2009, given to such children. The government of India
Lakashdeep (71.8), Manipur (42.2), Dadra and Nagar brought up the juvenile justice act of 1986.
Ju
Haveli (36.7), Kerala (33.3)8. The rate of crime in India
has substantially increased since 2010. Such problems Combating the Challenges Faced by Children
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show the situation of children who are dealing with the
Counseling of children is more difficult than counseling
psychological support to be given to them. The high
of adults. No such guidelines are provided for the
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rated migration in urban areas and the increase in slum
correct way of counseling the children and some
dwellings have increased the problem. Children who are
approaches are provided here that can be taken up as
deprived of their education and social satisfaction
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types of counseling the disadvantaged children.
become a part of anti-social elements. These children
of
are in fact an asset for the development of the nation. Institutional approach
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Issues for Rehabilitation The recently revised Juvenile Justice Act, divides the
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children into two categories; (a) children that are not in

Children in conflict with law are the ones who are
the phase of conflict of law but are in need of protection
involved in an offence some way or the other. Children
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and care (b) children who are in the conflict of law and
in conflict with law are the ones who are either a witness
within the law provided by the IPC. The JJ Act provides
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or a victim to any offence. Family has always been a

for childcare and protection homes and there has to be
major part for the development of a child, as family
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a proper connection between such established

nurtures the child emotionally and children brought up
institutions and society. This approach basically deals
in disorganized families develop a mental condition that
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with children that are taken care of and provided

affects their development and they tend to dissolve that
protection and counseling in a healthy family
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situation of the family.

atmosphere.
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Protection of children during the 20th century

Non-institutional approach
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During the 1980s the responsibility to protect an

affected child and bringing him back to the position Among such approaches, adoption is one that is
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where he or she had the potential to regrow was given considered as the best way to rehabilitate a child. India
due emphasis. In the modern era, the age old system of has no such uniform laws to deal with the concept of
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7 UNICEF, Declaration of the World Summit for Children 8 NCRB, National Crime Record Bureau report
(1990) https://www.unicef.org/wsc/declare.htm June 15. https://data.gov.in/resources/incidence-crime-committed-
2018. against-children-india-during (2001-2017) July 11. 2018.
9 Mousumi Dey , Juvenile Justice in India (2017), 45-53.
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adoption. In India, only a Hindu family can adopt a child to a child. The right of a child should be recognized as
under the Hindu Adoption and Maintenance Act, 1956. it helps in providing the correct and optimal level of
All other religions can adopt under the Guardianship protection from the harshness of society and the
and Wards Act, 1860. Adoption in India is basically required amount of education that is needed for a child
carried out with orphanages and home providing to regain his or her position in society. The social-
protection to such disadvantaged children. Foster care integration of family includes strengthening of family,
is one kind of care provided to children where a family avoid family- disintegrations and isolating children with
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takes care of the children for a temporary period of time. the family. Keeping in the mind, the society’s and state’s
Sponsorship is one type that helps in the rehabilitation responsibility to ensure social-integration and
en
of children who are disadvantaged. Here children are rehabilitation of the children who fall under the ambit
sponsored for their basic education and leading a of ‘conflict with law’, there is an urgent requirement of
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healthy life. India is a signatory to the World Declaration the study of children who have faced difficult
on the Survival, Protection and Development of circumstances and the one who belong to various
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Children (1990), which passed that those children communities of the society. Studies have shown
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should be given importance on the distribution of Psychiatric morbidity and emotional disturbances that
resources on national and international levels 10. From are a major cause for a deviant behavior in children. To
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the adoption of the convention, the need for the get in touch with the behavior and attitude of children
protection and rehabilitation of children in India has such as fighting, arguing, leaving home, stealing, begging
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increased rapidly. In the convention there several and adapting illegal activities, it should be observed that
articles that deal with the provision of justice that are for more than 50% of the rural population of children face
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the children. Article 40 of the Convention speaks about such situations and fall into such problems. The kind of
the standards for administration of justice. Article 37 L factors that had forced the children to take up such acts
deals with the protection of the children who are not depend on the reasons as to what actions they did that
given their liberty and the actions taking care for their got them encouraged or compelled to such acts.
of
rehabilitation and social re-integration in the society are
dealt with Article 39. These articles and provisions do The standards of care and institutional life and
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not deal with the children who are in conflict with law. probable solutions
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A guarantee of a child protected in a safe place and being

A juvenile in conflict with means a juvenile who has not
given proper education and health care facilities would
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completed the age of 18 years. Children who fall under

extensively reduce the number of children falling in the
the ambit of conflict with law generally belong to
ambit of ‘conflict with law’.
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excluded migrant families, poverty stricken families and

The traditional hand for institutional care has resulted in families affected by discrimination. With regards to the
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the child being separated from his or her family. standards of care and institutions, which basically are
Institutional care has led to families seeking observation homes, there is a need for separate
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institutionalization for the care that their children have observation homes for boys and girls and there should
nt
faced with crisis. Hence it is advisable to provide be a classification with respect to the age of the juveniles
support to families who have been facing crisis so that like 7 to 11 years, 12 to 16 years and 17 to 18 years.
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non-institutional services can be provided to children Similarly, a feasible number of children should be made
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who have faced such situations in any near past. The to stay in one room and only two children in one room
practice of child welfare has been through a significant for special care homes. There should be the facility of
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change from the part of history. The practice of clean drinking water for the children and food of a
custodial care has been replaced, as the strong better quality should be provided. As per the Juvenile
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conviction of the Right of Family provides basic rights Justice Act and the rules of NCT, Delhi, institutions are
https://www.unicef.org/wsc/declarration#TheTask, July 21,

10UNICEF,World Declaration on the Survival, Protection 2018.
and Development of Children (1990)
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175
studies among various African populations indicate that 3. Suppression of Immoral Traffic (prevention) act of
rates of HIV infection in young women aged 15 to 19 1956 exists for penalizing work doers. However,
may be five to six times higher than in young men. this act has never been properly enforced due to the
poverty of the sex workers.
SOCIAL IMPACTS 4. Legal suggestions have been made regarding license
system for the commercial sex workers. This license
The premature death of large numbers of young adults can be renewed according to the health of the
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has an inevitable impact on those societies most affected particular person.
by AIDS. 5. Article 38 of the constitution requires the state to
en
the direct the policy for improving livelihood of all
Households and Families the citizens. Article 47 further stresses on the
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government duty of health care. Alternate jobs
Households and families bear the brunt of the misery could be provided to the commercial sex-workers.
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caused by AIDS. Those who fall ill become unable to The patients surely deserve financial and help.
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work, forcing family members to care for them rather
than producing food or income. According to studies of Education
Ju
rural families in Thailand and urban families in Côte
d'Ivoire, farm output and income fell between 52 and 67 Where AIDS is widespread, education -- an essential
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per cent in families affected by AIDS. Families are also building block of development -- is being impaired. The
subject to discrimination if they have members who are epidemic is eroding the supply of teachers and diluting
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HIV-positive, often facing reduced access to publicly the quality of education. AIDS also reduces the amount
available social and economic benefits. L of money available for school fees, and forces an
increasing number of children -- more girls than boys --
Gender to drop out of school in order to help at home. As
of
teachers become ill and unable to work, some schools

The gender dynamics of the epidemic are far-reaching are closing. In parts of Southern Africa, one fifth of
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due to women's weaker ability to negotiate safe sex and teachers and secondary school students are estimated to
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their generally lower social and economic status. More be HIV-positive.

women than men are caretakers of people with AIDS,
ou
which may saddle them with the triple burden of caring Health Services
for children, the elderly and people living with AIDS --
lJ
as well as financial responsibility for their family's Since the beginning of the epidemic, 21.8 million people
na
survival. Girl children or older women may find have fallen sick and died of AIDS, placing ever-
themselves at the head of households, and many girls increasing demands on health services in the worst-
io
from families facing poverty risk exploitation, especially affected countries. Often, this increased demand
sexual exploitation, when trying to bring in additional stretches already over-burdened public health systems.
nt
income. Mother-to-child transmission is also a concern. In 1997, public health spending on AIDS alone
er
exceeded 2 per cent of gross domestic product (GDP)

LEGAL HELP FOR WOMEN in seven of 16 African countries sampled, a staggering
nt
amount for countries whose health expenditure for all

1. In 1989, AID prevention bill was introduced in the
eI
diseases accounts for 3 to 5 per cent of GDP. Adding to

Parliament this had 12 clauses and preamble. It was
these increased demands is the crushing burden of
the first to define the prevention and spread of
Th
AIDS on health workers themselves. A study in Zambia

AIDs.
showed that in one hospital, deaths among health-care
2. At present article 15(3), article 23 of fundamental
workers increased by a factor of 13 over a decade, largely
right say that state will make special provision for
because of HIV. Overburdened public health systems
women & children.
may also further marginalize minority, disabled and
*
81
CONCLUSION a child should be treated in such circumstances

where he or she has fallen in the pit of crime.
All such methods are required because a change in the  Government and NGOs should come forward
daily life, no proper parenting and the effect of to take up the initiative to improve the lives of
loneliness mentally forces children to commit offences. such children.
The example of increase in the crime rate in the Nation
is rape, murder, dacoity and burglary is something to be There should counselors visiting all such centers that
ce
noted. The basic aim of rehabilitation is the regain the provide assistance to such children. These counselors
nobility, morale and confidence in the children through will interact with the children and understand the
en
rehabilitation in family like environment or reach for the problems the children are facing, individually.
last resort that includes an institutional approach that
ud
not only improves the mental and physical state of a
child but also puts him or her position back in society as
pr
he or she had deserved. A helping hand from the
Government as well as NGOs is very crucial to achieve
ris
such goals. The benefit of such collaborations is the
breaking down of responsibility with the government
Ju
holding the upper position. The following conclusion
can be drawn for an implementation the rules governing
&
such children:
 There should be an increase in the juvenile

justice boards to give speedy care to children.
L aw
 A change in the framework that provides good
of
quality of life to children. Children of the same
age should be kept together and not with
al
children older to them.

rn
 Health care facilities should be improved which

includes better sanitation and increase in the
ou
number of bathrooms and toilets.

 There should be an increase in the finance
lJ
provided to the child care centers and other

na
associations dealing with the rehabilitation of

such affected children.
io
 A plan for ‘individual focus and care’ should be

nt
brought out that will put more focus on the

individual improvement of a child.
er
 To teach them the importance of earning their

necessities of life by different therapies and
nt
make them realize the essence of a bright

eI
future.
 Some rehabilitation centers should have the
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facility of de-addicting of children who get

addicted to drug and have committed a crime.
 There should be a counseling session of
parents, near relatives and guardians as to how
*
177
INDIA & THE INTERNATIONAL

INVESTMENT ARBITRATION
ce
SHUBHANSHU MISHRA
en
INTRODUCTION There is also a way of litigation which is considered to
ud
be the traditional way in which the corporation may sue
HISTORY the host state in its domestic courts. But domestic courts
pr
are bound by the domestic laws which may fall short of
In the recent years Foreign Direct Investment is what
the standards provided by international law. 2 Also in
ris
every country and mostly the developing nations aspire
country like India, litigation is not at all expeditious,
for. It is a factor which enhances host country’s
rather a slow and lengthy process. There is one more
Ju
economic growth. But for the multi-national
remedy available that is Diplomatic Protection which is
corporations willing to invest in a country, one of the
discretionary 3 and political to the government of the
&
most significant factors to be considered inter alia, is
states and thus not recommended.
Investment friendliness of the Host State and the
aw
Bilateral Investment Treaties between the Host State To bridge this procedural gap, best tool to solve such
and Home State of investing corporation. As in dispute is international Arbitration. It provides
L
anticipation of the fact that if a dispute arises between objectivity in the procedure on the basis of set standards
of
the host state and the corporation, what remedy can the that grant direct access to the parties without having to
corporation claim, under both, Domestic Law as well as depend on the state of their nationality. It is now
al
International Law. Through general practice in the relevant to discuss the graph of Arbitration (generally)
international investment community it is established through these years.
rn
that, International Investment Arbitration is the best

and most favoured practice so as to resolve a dispute. RISE IN SCOPE OF ARBITRATION
ou
In this paper, the author has tried to explore the Wherever diplomacy had failed, International
lJ
challenges in the contemporary International Arbitration has always been held to be equitable and
na
Investment Arbitration regime which India as a Host most effective means of dispute settlement. Under the
State faces and some suggestions are furthered, which a Hague Peace Convention of 1899, Permanent Court of
io
state should consider while tackling them. Arbitration was established. The Permanent Court of
Arbitration, from 1902 to 1914 dealt with 17 cases and
nt
In international investment arbitration the Host State rendered 16 awards. Its most significant awards were the
which is a subject of international law is confronted by
er
North Atlantic Fisheries Arbitration, Savarkar, etc. 4

a corporation established under any domestic law. In From 1945-1956 it merely dealt with four cases.
nt
investment disputes, investor’s home state generally However since 1959, PCA introduced many initiatives
supports the investor’s claim and pursues it against the such as offering it services for arbitrations between
eI
host state in the international arbitral forums.1 states and individuals or between states and a
Th
1 MALCOM N. SHAW, INTERNATIONAL LAW 712-715 3Id. At Pg. 130.

(2014)./ 4 ALINA KACZOROSKA- IRELAND, PUBLIC
2 RUDOLF DOLZER & CHRISTOPH SCHREUER, INTERNATIONAL LAW612-676 (2015).
PRINCIPLES OF INTERNATIONAL INVESTMENT
LAW 233-235 (2012).
*
178
corporation or between individuals in commercial The discussion of applicability of law leads us to the
matters.5 topic of Jurisdiction.
There has been a sudden increase in the Investor-State JURISDICTION

Dispute Settlement cases worldwide over the past
decade. Until the mid-1990s, only a handful of cases had In International Investment Arbitration the source of
emerged. Between the year 2003 & 2013, one arbitral jurisdiction can be traced either from a Bilateral
Investment Treaty (Herein referred as BIT) which is signed
ce
body registered more than 30 new cases every year and
more than 50 cases in each of the last three years of that between the Host State and the Investing Corporation’s
en
10-year period. Till the end of the year 2014, there were state (Home State), or it can be traced through various
approx. 600 known cases and 100 approx. governments other contracts between the host state and investing
ud
had responded to one or more ISDS claims.6 corporations. For instance Article 9(3) of The BIT
between India and United Kingdom, 19959 provides an
pr
APPLICABLE LAW ICSID clause.
ris
The law to be applied in such arbitration proceedings All arbitration procedures have some things in common
are standards of international law, but usually parties for instance, the parties can control the composition of
Ju
agree upon certain principles that are to be taken into the tribunal and the law applicable in the proceedings.
account and specify this in the contract. In this case Other common elements include the power of the
&
tribunal is obliged to apply the rules which have been tribunals to decide on their own competence, the
specified. Agreements sometimes specify that decision tribunal’s power to determine the rules of the procedure
aw
should be reached in accordance with the principles of in the absence of a choice by the parties, and the
law and equity, which means that the general principles principle of confidentiality.10
L
of justice common to legal systems should be taken into
BILATERAL INVESTMENT TREATIES (BITs)
of
account as well as the provisions of international law.
Most of the Bilateral Investment Treaties and other
Over the past few decades, BITs have emerged as the
al
Investment Treaties provide for fair and equitable

principal instruments by which countries, particularly
treatment (FET clauses) of foreign investment. Some
rn
developing countries seek to attract Foreign Direct

treaties refer to ‘equitable and reasonable’ rather than
Investment (FDI). When a country signs such a treaty,
‘fair and equitable’. However this variation does not
ou
it signals to foreign investors that it will provide a stable

reflect any difference in meaning.7
and predictable economic environment for their
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Generally, it is accepted that where the tribunal exceed investments.

na
its power under the compromise, its award may be

After the wave of decolonisation, several disputes used
treated as a nullity, although this is not a common
to occur between the developing nations and foreign
io
occurrence. Such excess of power may be involved

investors (from the developed nations). Eventually, it
where the tribunal applied the rules which it is not
nt
was argued by developed state that developing nations

authorised to apply or decided a question not submitted
shall at the least maintain “minimum standard of
er
to it.8
treatment” to the investors. After several dissents they
agreed to the concept of BITs.11 India was largely absent
nt
eI
5 Id. At 253. 10DOLZER, Supra note 2.

Th
6 PETER DRAHOS, REGULATORY THEORY 659-679 11ABIR DAS GUPTA, The Vodafone Tax Saga And India’s
(2017). Arbitration Worries, NEWS CLICK, Jul. 26, 2018,
7 DOLZER, Supra note 2. https://www.newsclick.in/vodafone-tax-saga-and-indias-
8 SHAW, Supra note 1. arbitration-worries.
9 BILATERAL INVESTMENT PROMOTION &
PROTECTION AGREEMENT, UK-INDIA, art. IX, Mar.
14, 1994.
*
179
from the timeline of BITs. But after liberalisation, India INTERNATIONAL TREATIES
for the first time entered into a BIT with the UK in
1994. As India was a party to United Nations Article 51 under the part IV of the Indian Constitution
Commission on International Trade Law 12 puts an obligation upon the government (state) to
(UNCITRAL), it entered into the said BIT under “promote international peace and security”. Art. 51 (c)
UNCITRAL. By 2013, India had signed 83 such BITs stipulates that the state shall endeavour to foster respect
with other nations.13 for international law and treaty obligations in the
ce
dealings of organized peoples with one another. This
Following the developments going against India till article can be said to be the source from which state gets
en
2012 and adverse arbitral awards being rewarded one the power to enter into a treaty by signing and ratifying
after the other against India, a working group was it. In the field of international arbitration, some
ud
constituted to review the whole ISDS (Investor-State important milestones were the UNCITRAL, 1958 (The
Dispute Settlement) mechanism and its clauses in the New York Convention)17 on the Recognition of Foreign
pr
BITs. In 2015 Government of India released its model Arbitral Awards which ensured recognition and
BIT first for public review then approved by Union enforcement of arbitral awards among signatory
ris
Cabinet later in the same year.14 nations, which has been signed and ratified by India and
the other important treaty is the International Centre for
Ju
After perusing the Model Indian BIT, it can be observed
Settlement of Investment Disputes (ICSID) in 1965.
that the treaty does retain the ISDS arbitration system
&
but has limited the discretion of the tribunal. Clause 14.3 The ICSID provided a legal and organisational
of the said model treaty 15 requires that Investor shall framework for international arbitrations between
pursue remedies in domestic courts for a minimum
period of 5 years and after the completion of these 5
years only the investor can issue a notice of dispute, say
L aw
foreign investors and states, and sidestepped the issue
of lack of consensus on standards of treatment by
attempting to create a mechanism for impartial
of
clause 14.3 (iii). Also before pursuing the remedies from settlement of disputes. With this international
arbitral tribunal, the parties need to try solving disputes institutional infrastructure in place, developed nations
al
through mediation and conciliation. The BIT also created the instrument of BITs, with international
contains narrow definition of investment in clause 1.6, arbitration under the ICSID included as a dispute
rn
excludes Most Favoured Nation clause, and also in settlement mechanism that individual investors could
Clause 2.6, it states that “the Treaty shall not apply to
ou
exercise against host states. One of such ICSID clause

any taxation measures……”16 These provisions makes could be found in the BIT between UK and India under
lJ
the model treaty pro-state and discriminates with which the Vodafone Tax Case is going on. In the BIT
foreign investor by bequeathing limited rights in them. between India- UK 1994, article 9 (3)18 states that party
na
As discussed that BITs do contain provisions as to, may go to the tribunal constituted under ICSID if they
before which tribunal should the dispute go. Such are party to it. About 161 States have signed the ICSID
io
provisions are instilled after considering which Convention and 153 have ratified it till date and India is
nt
international treaties the countries are part of, to know not a member state to International Centre for
that it is relevant to discuss the international treaties.
er
nt
eI
12 UNITED NATIONS COMMISSION ON 15 MODEL TEXT FOR THE INDIAN BILATERAL

INTERNATIONAL TRADE LAW, 1958. At INVESTMENT TREATY, cl. 14.3.
Th
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitrati 16 GOVERNMENT OF INDIA, Model Text for the Indian
on/NYConvention_status.html. Bilateral Investment Treaty, 2015.

13 UNCTAD, BITs ENTERED INTO BY INDIA, At 17 Supra note 12.
http://investmentpolicyhub.unctad.org/IIA/CountryBits/9 18 BILATERAL INVESTMENT PROMOTION &

6. PROTECTION AGREEMENT, UK-INDIA, art. IX, Mar.
14 GOVERNMENT OF INDIA, Model Text for the Indian 14, 1994.
Bilateral Investment Treaty, 2015.
*
180
may cut productivity growth by as much as 50 per cent ill, productivity drops off dramatically. Patterns of
in the hardest hit countries. cropping shift from cash crops to subsistence farming,
reducing household income and forcing the family to
Public Sector sell such assets as equipment or cattle to get by. Children
may be withdrawn from school to help with work or
In the public sector, AIDS reduces government tend to the sick, impairing their own development. In
revenues and puts severe strain on budgets as spending some areas, women dominate agricultural labor- up to
ce
on health and social welfare mount. Scarce capacity is 80 per cent- and this requires a gender-sensitive
depleted, and the return on other public investments response to HIV/AIDS.
en
falls.
IMPACT ON SECURITY
ud
Governance
The reverse in economic growth and development gains
pr
Governance suffers as a result of the epidemic: being experienced in some countries affected by AIDS
is magnified by the fragility and complexity of
ris
HIV/AIDS has a disastrous impact on the capacity of
Governments, especially on the delivery of basic social geopolitical systems. The epidemic is present in a
Ju
services. Human resources are lost, public revenues number of countries already facing conflict, food
reduced and budgets diverted towards coping with the scarcity and poverty, and poses real threats to social and
political stability where it is most concentrated -- in
&
epidemic's impact. Similarly, the organizational survival
of civil society institutions is under threat, with a Africa. The Security Council redefined security as an
aw
corresponding impact on democracy.3 issue going well beyond the presence or absence of
L armed conflict, one which affects health and social
Private Sector services, family composition and social structure,
economies and food security.
of
In the private sector, firms face higher costs in training,
insurance, benefits, absenteeism, medical costs, sick There is now broad acknowledgement that AIDS has
al
leave, funerals and pensions. At the same time, the become a global development crisis, potentially
rn
average experience of their labor force falls, reducing affecting national security in some countries. Armed
accumulated knowledge within firms. The most conflict and associated population movements provide
ou
seriously affected businesses are those that are labor- fertile ground for the spread of AIDS, while the
intensive, such as transport. Companies in Africa have epidemic itself can be seen as a risk factor in the
lJ
already felt the impact of AIDS on their bottom line. breakdown of social cohesion and in social and political
na
One sugar estate in Kenya quantified the cost of HIV instability, in addition to a threat to security forces
infection as 8,000 days of labor lost to illness in two
io
years, a 50 per cent drop in processed sugar recovered In India, the impact of HIV and AIDS is not very visible
from raw cane in four years, and a tenfold increase in due to the low prevalence rate and large population size.
nt
health costs. The company estimated that more than The latest official government estimate is 3.5 million at
er
three quarters of all illness was related to HIV infection. the end of 1998 4 . These estimates are based on a
statistical analyses starting from the number of cases
nt
Agriculture reported by participating hospitals. The general pattern

is that these are underestimates because many of the
eI
AIDS also threatens the basic livelihood of people living afflicted don't seek help as they are too poor or too
Th
in developing countries, especially the poor. In many marginalized. As a result, the true numbers may be as
countries, agriculture provides a living for as much as 80 high as 10 million. What is even more scary is that the
per cent of the population. As adults in rural areas fall rate of increase is very high: it could be as large as 1-2
3 NACO Web page http://www.naco.nic.in/naco/ 4 Ibid.
*
83
pending, White Industries sought to appeal the Supreme though CGP was not an Indian company. Vodafone
Court.23 moved to the High Court of Judicature at Bombay
against the income tax department. HC held that the
Till 2010 when the proceedings remained in the corporation should have exhausted all it remedies i.e. the
Supreme Court, the Australian giant brought an company should have first approached the Income Tax
arbitration claim against India under India- Australia Appellate Tribunal or the Dispute Resolution Panel
BIT contending that the delay in the court proceedings before approaching the HC. The Company then moved
ce
amounted to India having violated its liability to provide to the Supreme Court, which held that the transfer of
“effective means of asserting claims and enforcing shares of a foreign company between two non-residents
en
rights.” Although this was not an obligation under the could not be deemed as a transfer of a capital asset
BIT with Australia but such clause was borrowed from situated in India, and could not result in the levy of
ud
India- Kuwait BIT by means of the MFN (Most capital gains tax in India, even if the foreign company
Favoured Nation) clause. India effectively committed to holds shares of an Indian company.
pr
not discriminate between investors of different foreign
nationalities – so the “best” conditions and protections On March 2012, in the Union budget, the government
ris
offered by India to foreign investors of any nation could brought an amendment to the Income Tax Act,
be claimed by investors of any other nation. The simple specifying that “income arising from sale of shares or units shall
Ju
goal of MFN clauses in treaties is to ensure that the be deemed to accrue or arise in India if:-
relevant parties treat each other in a manner at least as
&
favourable as they treat third parties. The normal effect -transfer of a share or other interest in a company or entity had
taken place outside India, and
aw
of MFN clause is to widen the rights of the investor. In
Trade Law, the clause grants benefits wherever the -the value of the share or unit depended primarily on assets in
parties have not agreed to liberalise their relations in the India.”
L
same way as that in a treaty with a third state.24
The amendment applied retrospectively from 1962 and
of
The presence of MFN clause under India-Australia BIT applied to all transactions that had taken place ever
since.”26
al
meant that it too was entitled to the same obligation as

in Kuwait treaty even if they were not present in
rn
Vodafone later moved for two Arbitration proceedings

Australia treaty. In 2011, the arbitration tribunal found
one in Netherlands and the other in the United
in favour of White Industries, producing the first award
ou
Kingdom under the respective Bilateral Investment

against India in such a case.25
Promotion and Protection Agreements (BIPA). Both of
lJ
VODAFONE TAX CASE such proceedings are still going on under their
respective international arbitral tribunals.
na
The key issue in the Vodafone’s acquisition of Hutch,

was that deal was affected through financial transactions The Ministry of Finance has been trying every possible
io
between foreign companies, though ultimately, way since 2007 to collect tax to the tune of ₹12,000 a
nt
ownership of Indian assets was transferred. The income figure that has ballooned to around ₹22,000 crore in the
tax department immediately taxed the transaction interim, including interest and penalties.
er
contending that capital gains arising from the sale of the

2G SPECTRUM CASE
nt
share capital of CGP were taxable in India as the

underlying assets of the transaction were Indian, even
eI
Th
23 ARUN S, A Court To Fix All Investor-State Rows?, THE TREATY NEWS, Apr. 13, 2012,
HINDU, Oct. 29, 2017, https://www.iisd.org/itn/2012/04/13/the-white-industries-
https://www.thehindu.com/business/Economy/a-court-to- arbitration-implications-for-indias-investment-treaty-
fix-all-investor-state-rows/article19944869.ece. program/.
24 DOLZER, Supra note 2. 26 §.9 Income Tax Act, 1961
25 PRABHASH RANJAN, The White Industries Arbitration:
Implications for India’s Investment Treaty Program, INVESTMENT
*
182
Another spate of arbitration claims arose from the Multimedia a private corporation for lease of S-Band
cancellation of licences using second-generation (2G) transponders for ISRO satellites for a price of of ₹14
telecommunications spectrum by the Supreme Court in billion (US$200 million), to be paid over a period of 12
February 2012 as a fallout following the submission of a years. The spectrum used in these satellites (2500 MHz
report of the Comptroller & Auditor General of India and above) is allocated by the International
about irregularities in the pricing and allocation of Telecommunication Union specifically for satellite-
spectrum. based communication in India. In the year 2011 CAG
ce
report pointed several irregularities in the said deal
After the Supreme Court of India cancelling the 2G ranging from noncompliance of standard operating
en
spectrum licences of many telecom operators following procedures to financial mismanagement. Later,
the report by former CAG Vinod Rai of the blatant Government of India cancelled the contract. Devas
ud
irregularities in the distribution of licences, Telenor had multimedia brought 2 arbitration claims against India at
served a notice to Government of India claiming PCA.
pr
damages of Rs. 70000 Crores or it will bring an
International Arbitration Proceedings against it.27 Two international arbitral tribunals have ruled against
ris
India over the way contract was cancelled. The first
CAIRN-VEDANTA adverse arbitral award was given by the International
Ju
The Income Tax department levied a tax amounting to Chamber of Commerce which slapped the fine of nearly
Rs. 4,500 crore ($672 million) for unilaterally
&
Rs. 10247 Cr. on British oil explorer Cairn Energy plc
for alleged capital gains it made on a 2006 internal terminating the contract with Devas. The second
aw
reorganisation that saw the Indian business being adverse arbitral award was delivered by the Permanent
transferred to a new firm, Cairn India. Again on March Court of Arbitration (PCA), The Hague, and said that
Indian government is liable to fine of nearly US$ 1
L
2015 the department sought to levy tax for the capital
gain made by the acquisition of Cairn by the Vedanta Billion as the contract was cancelled in the wrong
of
Group. manner.
al
In March 2015, it also slapped a notice on Cairn India, INDIAN BEHAVIOUR TOWARD
INTERNATIONAL INVESTMENT
rn
which was in 2011 acquired by the Vedanta Group, for

its failure to withhold tax on capital gains made by its ARBITRATION
ou
erstwhile parent, Cairn Energy. The Income Tax

From the behaviour of several officials in the Union
department cited the 2012 amendments that gave tax
Government it doesn’t seem like this government is
lJ
departments powers to retrospectively tax such deals, to

interested in International Investment Arbitration as a
demand Rs 20,494.7 crores. This comprised of tax of Rs
na
means of peaceful settlement of Disputes. For instance,

10,247.4 crore and interest of an equivalent amount.28
after the Delhi HCs ruling on Vodafone Tax case a
The Arbitration proceedings are going under UK-India
io
senior government official was quoted saying “India

BIT.29
nt
may not accept International Arbitration orders

ANTRIX-DEVAS CASE annulling tax demands and the tax department will
er
In January 2005 a commercial wing of Indian Space

nt
Research Organization (ISRO) known as Antrix

eI
Corporation entered into an agreement with Devas

Th
27SIDDHARTH, Telenor Seeks Arbitration, Claims Damages Of 28 PTI, Final Arbitration Hearings On Tax Demand In August:
$14bn From Government, TIMES OF INDIA, Mar. 27, 2012, Cairn, THE ECONOMIC TIMES, Jan. 23, 2018,
https://timesofindia.indiatimes.com/business/india- https://economictimes.indiatimes.com/industry/energy/oil-
business/Telenor-seeks-arbitration-claims-damages-of-14bn- gas/final-arbitration-hearings-on-india-tax-demand-in-
from-govt-in-2G-case/articleshow/12420404.cms. august-cairn/articleshow/62619959.cms.
29 Id.
*
183
continue with the recovery process.” On being asked intention of the government that it is pro state and anti-
about Vodafone and Cairn Industry Arbitration.30 investor, such clauses will make the arbitral procedure
cumbersome, lengthy and hard to reach. Thus govt.
In 2017, during the ongoing tax case of Vodafone over does not seem to have faith into arbitration as a good
the second arbitration proceedings under India-UK mean of peaceful settlement of dispute. Because of such
BIT, in the Delhi High Court, a note sent by Finance legislative behaviour, the investors might think twice
Minister to the Prime Minister’s Office and copied to before investing in India and the existing ones may start
ce
the Revenue Secretary was leaked. 31 In the note, the to pack up and leave.34 And this would be completely
Union Finance Minister stated that under various BITs against the furtherance of “ease of doing business”.
en
of India, there are 23 International Arbitration
proceedings going on in which the Government of India Therefore, what I infer is that India has not been any
ud
is not adequately being represented. The note also stated successful in developing a BIT model that balances
that there are some cases wherein the Government is Investment protection with the state’s right to regulate
pr
defaulting in the appointment of arbitrators which if not and which does not tinker with the arbitral discretion.
done, will be appointed by international authority (ICJ) The BIT should be such that foreign investors keep on
ris
and that may be prejudicial to India’s interests. Further investing in India and BIT should not be the reason for
letter went on to say that there is no coordinating them not investing. Having a balanced BIT regime
Ju
ministry which is following it up on day to day basis. In would also help in improving the perception of foreign
relation to Vodafone case, the note said that India has investors that it is easier to do business in India and that
&
still to appoint a competent QC (Queen’s Counsel, a in case of undue regulatory interventions, they could rely
aw
designation used in Britain and some other on promises made under international law to safeguard
commonwealth countries, roughly equivalent to a their investment.
“Senior Counsel” in India) in the matter who could
L
argue on India’s behalf. The author noted that both the To expedite resolution of commercial disputes and to
of
presiding arbitrator and Vodafone’s lead counsel are promote peaceful settlement of dispute mechanism in
QC, are from Essex Court Chambers, a London based the country and to make India an international arbitral
al
set of barristers’ chambers, and recommended that the hub, Government on the other hand, constituted a
Committee under the Chairmanship of Srikrishna J.
rn
government also appoint a leading counsel from the

same chambers.32 Retired Justice of the Supreme Court of India. The
Committee was given the mandate to review the
ou
As has been discussed above in the section of BITs33, institutionalization of arbitration mechanism and
lJ
Also new model BIT proposed by govt. in 2015 suggest reforms thereto. The Committee submitted its
removes tax matters from going to arbitration, removes report on August 03, 2017, to the Minister of Law &
na
MFN clause, and puts a clause which states that before Justice and Electronics and Information Technology.
going to arbitration, the investor corporation will have
io
to exhaust their domestic court remedies till five years Eventually, on the suggestions made by the said
committee, recently Government has introduced the
nt
then try solving the dispute through mediation and

conciliation after that arbitration. Such clauses show the New Delhi International Arbitration Centre (NDIAC)
er
nt
30PTI, India May Not Accept Arbitration Orders Annulling Cairn 32 Id.
Vodafone Tax Demands, THE ECONOMIC TIMES, May 22, 33 PRABHASH RANJAN & KEVIN JAMES, India’s Model
eI
2018, BIT: Is India Too Averse?, BROOKINGS INSTITUTE (2018).

https://economictimes.indiatimes.com/news/economy/poli 34 PRAGYA SHRIVASTAV, India Scaring Away Foreign
Th
cy/india-may-not-accept-arbitration-orders-annulling-cairn- Investors? What New Bilateral Investment Treaty Is, And

vodafone-tax-demands/articleshow/64271201.cms. What It Does, THE INDIAN EXPRESS, Aug 2, 2018,
31 SWATI CHATURVEDI, Modi's Minimum Raj: Jaitley https://www.financialexpress.com/economy/india-scaring-
Forwarded Anonymous Note to Flag Key Matter to PMO, THE away-foreign-investors-what-new-bilateral-investment-treaty-
WIRE, Apr. 9, 2018, https://thewire.in/government/modis- is-and-what-it-does/1267124/.
minimum-raj-jaitley-sent-anonymous-note-to-flag-key-
matter-to-pmo.
*
184
Bill, 2018 in the Lok Sabha which sets India to compete domestic courts. 38 Also it has to be kept into
with other global international hubs like The Hague, consideration that if India dreams of a good arbitral
Paris, New York, Singapore, etc.35 Clause 14(a) of the mechanism, the institution shall have competent
Bill, envisages the NDIAC as a flagship institution for judges/arbitrators so that respect and sanctity of the
conducting international and domestic arbitration. institution grows and can be maintained and an
unwanted situation (such as European Union’s denial to
CONCLUSION include an ISDS clause. Many countries like South
ce
Africa, Indonesia, Australia & Eucador have announced
BIT arbitrations are neither subject to the UNCITRAL
that they would not include ISDS clauses in future BITs,
en
as India while acceding to the said convention, made a
or they will withdraw from the treaties in force that
reservation that it will apply the convention “only to
include ISDS clauses, or let such treaties lapse39) does
ud
differences arising out of legal relationship… that are considered
not arise.
commercial under national law”36, nor to the Arbitration and
pr
Conciliation Act, as it would be applicable only in cases In the wake of governmental efforts like the
of commercial arbitration, as discussed above. introduction of the New Delhi International
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Arbitration Centre (NDIAC) Bill, 2018 in the union
For Indian courts to set aside the adverse arbitral awards
cabinet is, at least on paper, all set to present itself and
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granted against India, would be politically risky, as India,
compete with other jurisdictions like London, Paris,
is revered by the international investors, and its
Geneva, Singapore and New York as a global
&
credibility before them will be lowered. Additionally, it
arbitration hub.
will make government’s intentions clear not to improve
aw
market conditions for foreign investors, and initiatives However, the letter sent by the Finance Minister to the
like ease of doing business will prove to be mere lip PMO and also the miscellaneous instances discussed
L
service and pretentions. It shall be the duty of the in the chapter 5.3. undermines faith and hope in the
of
domestic courts to give a green signal to the awards by Government that it will do anything to further the
foreign tribunals when they come to domestic courts for International Investment Arbitration regime in the
al
their execution, until and unless the award suffers from country. Further, more research is needed to be done
what Supreme Court calls as “Patent Illegality”37 on questions as to whether domestic courts shall comply
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with the award of the arbitral tribunal or should they

The initiative to establish NDIAC as a flagship
again go into the merits of the case and order against
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institution for international and domestic arbitration

adverse arbitral award. Would it be legitimate? Where
plays a vital role when other factors discussed above
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will the domestic courts get the Jurisdiction from? And

are implemented and are looked upon, perpetually. An the like questions. These questions are needed to be
na
initiative of national importance like the NDIAC can

answered because attitude of the judiciary in addressing
play an important role only when other factors,
such issues will ultimately decide the country’s overall
io
discussed above, are conducive. Also it becomes

image as “arbitration friendly” or otherwise and also
inevitable to ensure specialization for judges dealing
nt
because the role of Domestic Courts for the execution

with arbitration related matters. Moreover, of an international arbitral award will massively impact
er
jurisprudential certainty will help stimulate the

foreign relations of India and will determine whether
confidence of the public in arbitration as a peaceful
India revers Public International Law or not.
nt
dispute resolution process as opposed to approaching

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Th
35 SOMESH DUTTA, HOW REALISTIC IS INDIA’S 38 PALASH TAING & PRATEEK KHANNA, India: The
DREAM OF BECOMING A GLOBAL ARBITRATION New Delhi International Arbitration Centre Bill, 2018: Creating An
HUB, THE WIRE, Apr. 30, 2018, Ecosystem For International Arbitration Centre In India,
https://www.thewire.in/law/india-global-arbitration-hub- MONDAQ, Jul. 05, 2018.
modi-government. 39 Supra note 11.
36 Supra note 20.
37 ONGC v. Saw Pipes (2003) 5 SCC 705
*
185

HIBA ZAHEER
“It is impossible to correct abuses unless we know that they are Therefore, in simple terms, domestic violence means
ce
going on” any behavior involving physical, psychological,
-Dave Pelzer emotional, sexual or verbal abuse. It is any form of
en
aggression intended to hurt, damage or kill an intimate
INTRODUCTION person.3
ud
A peaceful and harmonious life is a basic human right Home is a place where a person tends to find the
pr
which is guaranteed to each and every individual by comfort and security for oneself. It is an impassioned
practically all the nations of the world. It is an aspect filled with values and foundation of nurturing.4 It
ris
indispensable element for a person’s basic survival and goes without saying that only bricks or wood are not
empowerment. A person’s right to life and personal enough, but it takes strong and close ties with the family
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liberty in and outside of his house furnishes him the members to make it a home. Thus, it becomes seriously
required scope and opportunity to flourish and objectionable if a person suffers from any sort of
&
contribute in a nation’s well-being. violence, be it mental, physical or sexual, by a member
aw
of his/her own family. Further, more often than not,
In the Constitution of India, Article 21 guarantees right
domestic violence goes unnoticed by the government of
to life to all the Indian citizens. 1 Likewise, in the
any nation due to the popular notion that the matters
L
Constitution of the United States, Article XIV, Section
related to the family are a private affair and therefore,
1 guarantees the right to life and liberty to each and
of
they should be kept out of any kind of legal intervention.
every individual.2
As a result, fundamental rights provided to the citizens
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Hence, these provisions aptly indicate that the fraternal related to the right to life and personal liberty are, at
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and violence-free life is of utmost importance for the most times not enforced properly within a household.
subsistence of living beings. Furthermore, the rule of
This article makes an attempt to draw special attention
ou
law related to the right to life and personal liberty is

towards the issue of domestic violence and how it is
limited not only to a person's public life but such rules
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responsible for the traumatic and indelible effect on the

are also applicable within the four walls of the house.
lifestyle of the victim. In addition to this, it also
However, during the present era, unfortunately, in spite
na
endeavours to recommend measures that can be taken

of these established laws, violence within family
up by the government and by the society as a whole to
io
generally known as domestic violence or abuse is widely

deal with the problem of domestic violence.
manifesting as a common practice in almost every other
nt
household.
CAUSES OF DOMESTIC VIOLENCE
er
The dictionary meaning of ‘domestic’ means ‘relating

 Social and Cultural Factors:
nt
to the running of a home or to family relations.' In

the same manner, the dictionary meaning of ‘violence’ Gender roles have been fixed in the society for ages. It
eI
means ‘behaviour involving physical force intended has been established that the duty of a man is to earn
to hurt, damage or kill someone or something.’
Th
the livelihood for his whole family. On the other hand,
1 Indian Const. art 21 4 What is home?, Essay, (Sept 06, 2018, 2:02 AM),
2 U. S. Const. amend. XIV, § 1 https://www.bartleby.com/essay/What-is-Home-
3 Dr Asa Don Brown: The effects of domestic violence and F3CVQDSYTC
addiction, (Sept 05, 2018, 11:51
PM), http://www.thesoberworld.com/july16_issue.pdf
*
186
a woman has been assigned the role of a home maker

and to look after all the family members. As a result,  Psychological Factors:
generally, women are dependent on their husbands
financially. This helps men to abuse their wives who are The male ego is a significant factor for the abuse that is
unable to look after themselves due to the lack of their inflicted on a woman by her husband or other male
own livelihood. members of her family. Our society is mainly patriarchal.
This concept is deeply embedded in everybody's mind.
ce
 Economic factors: Therefore, often men are unable to accept the fact that
women are more successful than them or are able to
en
Economic degradation such as underemployment or accomplish more in their lives. Many a times, men get
unemployment often results in mental stress, agony and jealous of their wives' accomplishments and try to
ud
depression. Many a times, such stress becomes the demean them by using violence of any kind such as
reason among men to physically violate their wives in physical, mental or emotional as their weapon.
pr
order to liberate the tension. Often such stress leads
men to indulge in the habitual drinking or drug abuse  Legal Factors:
ris
which further deteriorates the financial condition of the
household. Oft- times, a person under the influence of In today’s era, women have various legal recourses
Ju
alcohol or drugs resorts to violating his wife and against domestic violence. A number of statutes and
children. laws have been enacted in order to prevent the domestic
&
abuse against women. The problem, however, lies in its
 Pathological Factors: implementation. Although, there is no lack of the laws
According to the experts, most of the times, the

perpetrators of domestic violence are such persons who
L aw
regarding the said issue, the point is that these laws are
not executed properly by the officials. The problem of
domestic violence is not taken seriously by the higher
were either the victim of domestic abuse in their past or
of
authorities. Moreover, in our country where there are
have witnessed some kind of violence in their home as low levels of illiteracy among the women, lack of
a child. Moreover, the upbringing of a person is also
al
awareness of the established laws and the availability of

responsible for his/her behavior. Research has shown NGOs and the insensitive attitude of the police,
rn
that those children who were spoiled, badly brought up advocates and judiciary towards the victims are also
or were unable to look after themselves usually show
ou
responsible for the domestic violence to prevail.

such kind of abusive behavior towards others.5 In some
cases, it is seen that men who are mentally ill or THEORIES OF DOMESTIC VIOLENCE
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disturbed often abuse or mistreat their family members.

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It is also argued that sometimes women are also Psychological Theory:

responsible for the violence inflicted on them meaning
io
thereby, in some cases women did not take any step to This theory’s main focus is on the personality traits and
stop their husband’s cruel behavior towards them. Such mental characteristics of the person.7 It suggests that the
nt
women were of the view that their husbands have the offender may have a low self-esteem, manipulative
er
right to use physical violence as a means to keep them nature and a desire to gain power and control over
under control.6 Moreover, the fact that men are usually others. These individuals tend to show signs of jealousy
nt
stronger than women also gives an opportunity to the and possessiveness, do not take the liability of their
actions and are highly dependent on the victim.8 They
eI
men to abuse their wives.

are generally jealous of their partner’s success in any
Th
5Margo Wilson, The Existing Research into Battered Women, 7 Theories of Domestic Violence, Essays, UK. (November
London: National Women’s Aid Federation (1976) 2013) (Sept 07, 2018, 2:32 AM),
6 J.J Gayford, Wife Battering: A Preliminary Survey of 100 https://www.ukessays.com/essays/social-work/theories-of-
cases, 97, British Medical Journal (1976) domestic-violence.php
8 ibid
*
187
sphere of life which drives them to take such steps. It is violence should be seen in the light of this theory in
argued that such individuals either experienced a order to spread awareness regarding the growing
traumatic incident in their childhood or they were violence against women all over the world. Thus, this
involved in delinquent behavior during their theory strongly suggests that the main cause of domestic
adolescence due to which they began abusing their violence is the prevalence of the patriarchal society.
family members.
DOMESTIC VIOLENCE: RECENT
Social Learning Theory:
ce
STATISTICS
en
It is said that a child’s brain is like a sponge which The rampancy of the issue of domestic violence is
absorbs all kinds of influences of the society irrespective becoming a harsh reality day-by-day. If we look at the
ud
of their good or bad nature. The formative stages of a recent data that has been formulated it reveals that every
child are very crucial as these decide the ultimate lifestyle third woman suffers some kind of violence by her own
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that he is going to adopt. Moreover, the family has a family members in an Indian household. According to a
great influence on the child’s upbringing. This theory report of National Family Health Survey published by
ris
advocates the observance and imitation of habits and Ministry of Health and Family Welfare, it was revealed
behavior of one person by the other. A child who that not only married women but girls who are as young
Ju
witnessed domestic violence at the hands of his as 15-year-olds are also harassed on a day-to-day basis
father/stepfather in his household is likely to repeat within the four walls of their house.10
&
these actions with his own family members also. Such
behavior is more likely to continue when the offender is Incidents of physical violence are more commonly seen
aw
of the belief that his actions have no negative in the rural areas than the urban areas. The percentage
consequences.9 of cases of domestic violence reported in rural and
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urban areas is 29% and 23% respectively. It has also
Feminist Theory:
of
been reported that unmarried women and under-aged
girls have often experienced domestic violence at the
The feminist movement started around 1970s. The most
al
hands of their mother (or step-mother), father (or step-

important objective of this movement was to highlight father) or their boyfriends. In a number of cases, the
rn
the degrading conditions of women in terms of race, situation got out of control where women experienced
gender and sexual preference and thus, providing with physical injuries such as burns, bruises, fractures and
ou
various measures to upgrade the stature of women in the other serious injuries as a result of the domestic abuse.11
society. Thus, the feminist theory believes that the
lJ
infliction of domestic violence on the women is mainly A more disturbing fact that was revealed after
na
due to the gender differences, male coercion and conducting a survey on women in India that a large
widespread oppression of women. Various forms of number of females between the ages of 40-49 are
io
violence inflicted on women can be categorized as rape actually supportive of domestic violence that is inflicted
including marital rape, female infanticide, dowry-related on them. 12 These women were of the view that their
nt
cruelty including dowry death, etc. The supporters of husband or in-laws have abused them on the account of
er
this theory are of the firm belief that the domestic disrespecting their in-laws (37.1%), arguing with their
nt
9 ibid AM), https://www.news18.com/news/india/the-elephant-

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10 Sakti Golder, Methodology of Measuring Domestic in-the-room-every-third-woman-in-india-faces-domestic-

Violence in NFHS-3 (2005-06) and NFHS-4 (2015-16), violence-1654193.html
Th
Measurement of Domestic Violence in NFHS Surveys and 12 Anna Issac & Gopika Ajayan, Is this plausible? Over 50%
Some Evidence, (Sept 07, 2018, 11:57 AM), South Indian women justiy domestic violence, says survey,
https://www.oxfamindia.org/sites/default/files/WP- The News Minute, (Sept 08, 2018, 5:16 PM),
Measurement-of-Domestic-Violence-in-National-Family- https://www.thenewsminute.com/article/plausible-over-50-
Health-Survey-surveys-and-Some-Evidence-EN.pdf south-indian-women-justify-domestic-violence-says-survey-
11 Sheikh Saaliq, Every Third Woman In India Suffers Sexual, 74900
Physical Violence at Home, News 18, (Sept 08, 2018, 12:15
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188
PRIVACY JURISPRUDENCE & ITS IMPACT ON THE

L.G.B.T.Q. COMMUNITY
PANYA MATHUR
ce
“Change in moral perspective is an art of the changing world and serious offence. However, the first time that privacy
en
must be changed for good.” jurisprudence interlocked with sexual orientation was in
the form of the Wolfendon Committee Report of 1957.
ud
INTRODUCTION
THE HART-DEVLIN DEBATE
pr
LGBT is an initialism that stands for lesbian, gay,
The Wolfendon Committee was created to consider the
bisexual, and transgender. The initialism LGBT is
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issues of homosexuality and prostitution. The report of
intended to emphasize a diversity of sexuality and
this Committee concluded that, consensual liaisons
gender identity-based cultures and is sometimes used to
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between consenting adults within the privacy of their
refer to anyone who is non-heterosexual or non-
homes, was not to be legislated upon. The rationale
cisgender instead of exclusively to people who are
&
behind this was that law was meant to maintain public
lesbian, gay, bisexual, or transgender. Lesbian, gay,
order and, not, to intrude into the private life of citizens.
bisexual and transgender people are more likely to
aw
The report did not urge the repeal of anti-gay laws,
experience intolerance, discrimination, harassment, and
merely a policy of non- prosecution in certain cases2.
the threat of violence due to their sexual orientation,
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This claim made by the Wolfendon Report touched off
than those that identify themselves as heterosexual. This
one of the most remarkable debates in the history of
of
is due to homophobia (the fear or hatred of
English jurisprudence between two scholars, Lord
homosexuality). Some of the factors that may reinforce
Devlin and HLA Hart. The former believed that society
al
homophobia on a larger scale are moral, religious, and

was held together by a common morality and that sin
political beliefs of a dominant group. In some countries,
rn
was synonymous with crime; thus sin ought to be

homosexuality is illegal and punishable by fines,
suppressed with the utility of criminal law. The latter
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imprisonment, life imprisonment and even the death

believed that the hypothesis that, society was a seamless
penalty. In India, sexuality has long been a silent
web that left no room for deviation, and, that criminal
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battleground. Each decade has taught us more about the

law was necessary for moral preservation, was absurd.
ways in which it underlies almost every aspect of our
na
Morality implies a basic reference to the distinction of

lives, making the socially enforced silence that envelops
what is right from what is wrong. Various moralities
issues of gender and sexuality seem increasingly more
io
differ as to the extent of what is right and what is wrong,

deafening.1 Homosexuality is not a new concept in India
or good and bad, and therefore, each community, nation
nt
and sexual minorities have always existed in India

or society may have its own morality, according to the
sometimes in forms, which are culturally sanctioned
er
(such as the hijra) and at other times in invisibility and local beliefs, whether social, political, religious or other.
The very expressions "morals" and "morality", though
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silence, their issues have never seriously been

articulated. In different religions, different punishments broad in meaning, have too often been understood to
eI
were provided for homosexual offences in India. In have a close connection with sexual morality. Legal and
Manusmrithi, homosexuality is seen as an offence and philosophical writers are not always careful to indicate
Th
lesbianism, by contrast merits more serious punishment. that although the main illustrations of moral problems
Islamic Shariat law treats homosexual conduct as a are generally taken from sexual morality, morality
1 Ghautam Bhan, Sexual Rights and Social Movement in India in Commw. L. Bull. 551 (2008)
EMPOWERMENT IN ACTION (CREA) 1, New Delhi, 2006
2 Michael Kirby, Lessons from the Wolfenden report, 34
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93
as physical, sexual and emotional abuse. The Protection the Protection of Women from Domestic Violence Act,
of Women from Domestic Violence Act, 2005 has 2005 holding that these words discriminate between
enshrined the principles of the Convention on the persons similarly situated, and is contrary to the object
Elimination of All Forms of Discrimination against Women, sought to be achieved by the Domestic Violence Act.25
which have been ratified by India in the year 1993.20 Moreover, it was also observed that if the term
‘respondent’ only holds an adult male as the offender
Under this act, the term ‘domestic relationship’ means a then this is bound to give the women of the household
ce
relationship between two persons who live or have, at a freeway to inflict violence on the victim as they are
any point of time, lived together in a shared household, excluded from the purview of being an offender and
en
when they are related by consanguinity, marriage, or thus, defeating the very purpose of the act of preventing
through a relationship in the nature of marriage, violence against the women.
ud
adoption or are family members living together as a joint
family.21 Therefore, this implies that not only married In addition to these, the act has also given an exhaustive
pr
women but also women in a live-in relationship, definition of ‘domestic violence’ under S. 3 of the Act.
divorced women or former girlfriends have the right to It states that domestic violence constitutes of
ris
lodge a complaint against the offender. The term commission or omission of any act which harms, injures
‘aggrieved person’ has also been defined under the act or endangers a person’s life, safety or health and also
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which means any woman who is, or has been, in a includes causing physical, sexual, emotional and
domestic relationship with the respondent and who economic abuse. It also includes threatening or
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alleges to have been subjected to any act of domestic harassing a person for dowry demand.26
aw
violence by the respondent.22
Under the act, the aggrieved person is entitled to be
Moreover, the definition of ‘respondent’ has also been provided with a shelter home, 27 counselling 28 and
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provided under the act which states that the medical facilities29 in case of necessity. The respondent
of
respondent means any adult male person who is, or has can also be restricted from entering the place of
been, in a domestic relationship with the aggrieved residence of the aggrieved party by the magistrate and
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person and against whom the aggrieved person has can also be prevented from evicting the victim from the
sought any relief under this Act. Further, it is provided house. 30 In addition to this, the respondent is also
rn
that an aggrieved wife or female living in a relationship responsible for providing monetary or compensatory
in the nature of a marriage may also file a complaint relief to the victim in case of any loss, damage or
ou
against a relative of the husband or the male partner.23 destruction of property or body of the victim.31
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However, in 2016, the Supreme Court in the case of

Hiral P. Harsora and ors. v. Kusum Narottamdas Shortcomings of the Act:
na
Harsora and ors.24 has struck down the words ‘adult

male’ from the definition of ‘respondent’ under S. 2q of
io
nt
20 Shreeja Sen, The Law, Ten years on, where does the 10, 2018, 11:36 PM), http://www.livelaw.in/sc-strikes-
Domestic Violence Act stand?, (Sept 10, 2018, 3:58 AM), words-adult-male-definition-respondent-section-2q-dv-act-
er
https://www.livemint.com/Politics/oin3GVsX0EJkR8uccp relief-possible-minors-women/
niIJ/Ten-years-on-where-does-the-Domestic-Violence-Act- 26 Protection of Women from Domestic Violence Act, § 3,
nt
stand.html (2005)
21 Protection of Women from Domestic Violence Act, § 2f, 27 Protection of Women from Domestic Violence Act, § 6,
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(2005) (2005)
22 Protection of Women from Domestic Violence Act, § 2a, 28 Protection of Women from Domestic Violence Act, § 14,
Th
(2005) (2005)
23 Protection of Women from Domestic Violence Act, 2005, 29 Protection of Women from Domestic Violence Act, § 7,
§ 2q, (2005) (2005)

24 (2016) 10 SCC 165 30 Protection of Women from Domestic Violence Act, § 19,
25 Ashok KM, SC Strikes Down Words ‘Adult Male’ From (2005)
The Definition Of “Respondent” Under Section 2(Q) Of DV 31 Protection of Women from Domestic Violence Act, § 20,
Act; Relief Possible Against Minors, Women, Law.in, (Sept (2005)
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190
 Firstly, the act has only benefitted women. There is DOMESTIC VIOLENCE AND LGBTQI
no provision in the act which entitles men who are COMMUNITY
the victims of domestic violence to seek help against
the abuse. Moreover, according to S. 32(2) of the Another disturbing aspect that has been deeply
Act, a woman’s sole testimony against the alleged entrenched in our society is the maltreatment of the
offender of domestic violence is enough for his LGBTQI community and their interests. These special
conviction.32 This gives all the more power to the groups have faced a lot of humiliation and hardships all
ce
women to misuse the law in order to harass men over the world due to their sexual orientations. Even in
and their families. India, this community has been seen as nothing more
en
 The provision of S.17 that women have the right to than a social stigma to the society. The Supreme Court
reside in the shared household without having any of India in the case of Navtej Singh Johar v. Union of
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title and also, the offender cannot evict her from the India 36 has struck down S. 377 of the Indian Penal
household 33 has proven to be a powerful tool to Code by decriminalizing consensual same-sex
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further harass the men. relationships and has granted equal rights to these
groups but still, the position of this special group is not
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 As according to S. 3, the accused will be liable to
going to improve for a long time. Moreover, the number
inflict physical, emotional, verbal and sexual abuse
of laws which are actually related to the LGBTQI
Ju
on the victim. 34 While it is possible to prove the
community are rather scanty. For instance, under the
physical or sexual abuse but a court can only rely on
rape laws of Indian Penal Code, punishment for rape
&
the woman’s testimony to prove verbal and
with a trans-person is nowhere mentioned. The law has
emotional abuse. This provision has also kept
aw
only criminalized rape with a man and a woman and not
women in the advantageous position as they can
with the third gender. In the same way, time and again,
falsely register a case of domestic violence against
these groups have been subjected to unfair treatment at
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any man.
many walks of their lives.
of
 Moreover, S. 4 has also given a right to any other
person to file a complaint to the protection officer Likewise, there is no provision for the protection of
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if he has reasons to believe that any kind of persons of LGBTQI community under the Domestic
domestic violence is being committed or is likely to Violence Act in India. Even in this day and age, India is
rn
be committed. 35 This absurd provision has largely a country with traditional beliefs and stereotyped
ou
unnecessarily allowed a stranger to get involved in a culture. The conception of homosexuality, bi-sexuality
family’s private matter and to add to the torture of or trans-gender issues are yet not welcomed in our
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the concerned man. society and are viewed as a taboo in the eye of the
general public. Thus, people with different sexual
na
These drawbacks clearly show that there is a need for a orientations are seen to bring shame for their families. It
lot of improvement and amendments in the statute. becomes extremely difficult for a person to accept their
io
Most importantly, the act, instead of giving sweeping sexual preferences in front of their parents and even if
powers to the women should also include provisions to
nt
they do, they are often subjected to physical and

protect men from the domestic abuse and torture. emotional abuse by their own family members.
er
Moreover, instead of favoring only one gender, the act

should make an endeavor to make a balance of the The situation is more abysmal in the rural areas. In an
nt
responsibilities between both men and women. interview, a trans-woman who was born in a village
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admitted that the treatment of a lesbian woman or third-

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32 Protection of Women from Domestic Violence Act, § 35 Protection of Women from Domestic Violence Act, § 4,
32(2), (2005) (2005)
33 Protection of Women from Domestic Violence Act, § 17, 36 W.P. (Criminal) No. 76 of 2016 decided on 6th September,
(2005) 2018
34 Protection of Women from Domestic Violence Act, § 3,
(2005)
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191
gender is often horrifying and extremely brutal. The In a high profile case of a famous Bollywood actor
achievement of the basic human rights by such persons Bobby Darling who changed her name to Pakhi Sharma
is a far-fetched reality. They are often subjected to rapes after undergoing a sex reassignment surgery was in an
by their own family members in order to cure their abusive relationship with her husband. She accused him
sexual preferences.37 In a number of cases, families who of domestic violence, dowry demand and unnatural sex.
are homophobic or trans-phobic have been involved in Sadly, in order to seek justice under Domestic Violence
the honor killings of their children who had different Act for the infliction of physical and mental trauma by
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sexual preferences. In 2011, a lesbian couple in Haryana her husband and in-laws, she had to file a case as a
was killed by their nephews for having an ‘immoral’ woman and not as a trans-person. This owes to the fact
en
relationship. The leading explanation that was given by that the Domestic Violence Act does not talk about the
them for such brutal act was protecting the honor and protection of the third gender from domestic abuse.
ud
status of the family from such behavior of their children Moreover, if the court for any reason decides that she is
which is considered as a social stigma in the society. not a woman then she will be unable to seek redressal
pr
under the Domestic Violence Act and can only hope to
The acceptance of their identity for these special groups
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get justice under other laws like Indian Penal Code and
is not a piece of cake even in the urban areas. The suicide other civil laws.39 Hence, this case unquestionably urges
rate of the homosexuals is alarmingly increasingly. 38
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us as a society to take this issue with utmost seriousness
This is because the task of coming out of the closet and make efforts to stop the unjust treatment that is
about their sexual preferences in front of their family
&
meted out to these special groups only because of their
seems extremely challenging for them and they are often different sexual orientation. There is an urgent need of
aw
left with disappointment when they are not supported the laws that are exclusively enacted for the protection
by their families. Lack of family support often takes a of the rights and interests of this community so that they
toll on the mental health of the person and he/she is
L do not have to suffer in and outside of their homes.
further pushed into depression, suicidal thoughts or lack
of
of self- esteem. Even if the families are able to accept CONCLUSION
the identity of such a person, they often put a lot of
al
restrictions on him/her regarding their choice of clothes “The more we choose not to talk about domestic violence, the
more we shy away from the issue, the more we lose.”
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or interaction with other people in public. Restrictions

on a person’s right of freedom and liberty to live their
These words by Russell Wilson, an American Footballer
ou
life on their terms have also been included in the

have aptly indicated towards the actual situation of our
definition of domestic violence. Thus, it is highly
society with respect to domestic violence. Domestic
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advisable for the parents whose child has a queer

violence is one of the least reported crimes in India. This
personality to support them regarding their true identity.
na
owes to the fact that Indian society is widely patriarchal

Support from the family helps a person to build their
where stature of the women has stooped down to the
self-confidence and makes them more mentally and
io
lowest level and their only responsibility is to serve the

socially stable. Social acceptance is more important than
nt
husband and to take care of the family and if they

legal acceptance.
disobey in any manner then they are frequently
er
physically and mentally abused by their own family

nt
37 Rashmi Patel, Being LGBT in India: Some Home Truths, 39Guara Naithani, Why Bobby Darling’s Domestic Abuse
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Live Mint, (Sept 13, 2018, 11:39 PM), Case is a Milestone for the Indian Legal System, Scoop
https://www.livemint.com/Sundayapp/sAYrieZdZKEybK Whoop News, (Sept 14, 2018, 1:02 AM),
Th
zhP8FDbP/Being-LGBT-in-India-Some-home-truths.html https://www.scoopwhoop.com/why-bobby-darlings-
38 Payal Gwalani, High rate of suicides haunts LGBT youths, domestic-abuse-case-is-a-milestone-for-indian-legal-
The Times of India, (Sept 13, 2018, 11:45 PM), system/#.ulsqdw660
http://timesofindia.indiatimes.com/articleshow/49808926.c
ms?utm_source=contentofinterest&utm_medium=text&ut
m_campaign=cppst
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192
members. Further, the fear of being a victim of domestic

abuse has discouraged many women to raise their voice
against the brutality that is faced by them. Thus, it has
become a crucial responsibility for us as a society to
make people aware of this issue and encourage women
to take a step towards stopping the unjust behavior
towards them. Moreover, not only the common people
ce
but the police, advocates and the judiciary are also duty
bound to take the cases of domestic violence with
en
seriousness before neglecting them as a private family
matter. If the laws related to domestic violence are
ud
applied sincerely then this problem can be curbed to a
great extent. Another important measure that can be
pr
taken up to prevent domestic violence is by making
ris
people aware of the real issue and its consequences. The
society at large needs to be enlightened about violence
Ju
against women in general and domestic violence in
particular. It is necessary that women should be made
&
aware of their rights and should be taught to take crucial
steps against the injustice towards them without shying
aw
away from the issue.
Lastly, it is also necessary that it should be realized that

L
the victims of domestic violence are not always women
of
and thus, protection under domestic violence act should
also be provided to men and the third gender. For this,
al
it is necessary that the laws should be inserted under the

rn
statute that allows men and the members of the

LGBTQI community to seek justice against any kind of
ou
cruelty inflicted upon them within their household.

lJ
na
io
nt
er
nt
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193

TANYA BHARTI
INTRODUCTION entirety; and it appoints the Secretary General of the
ce
United Nations as the Depository of this agreement3.
The Problem of Climate Change is a widely discussed The agreement first discusses its aim and objectives in
en
and disputed matter all across the globe. Environment the initial Articles, followed by the methods and
is a global subject matter with no geographical provisions for initiating positive action for controlling
ud
boundaries and therefore, effluents and emissions that climate change and it concludes with establishing the
affect one country’s environment inevitably have a enforceability of the agreement and lays down a
pr
negative impact on the global climate. As there is no one mechanism to facilitate the implementation of and
international political and executive body, it becomes compliance with the provisions of the agreement.
ris
very difficult for countries to unanimously come up with
a solution that is feasible for every party. The arguments The Paris Agreement requires all Parties to put forward
Ju
of developing nations are usually narrowed down to a their best efforts through Nationally Determined
debate on development versus environment. They Contributions (NDCs) and to strengthen these efforts
&
contend that they have a hard time meeting the standard in the years ahead. This includes requirements that all
aw
laid down for global emission levels and temperature Parties must regularly report their emissions and their
goals as their economies are not capable of handling the implementation efforts4. Article 2 of the Agreement sets
technology and infrastructure required for maintaining its long-term climate change mitigation and adaptation
L
such standards. Further, they also bring to foreground ambitions. The objectives include and extend to putting
of
the inequality in them having to follow such standards a hold on the increase in the global average temperature
while the developed nations have already exploited their below 2℃ above pre-industrial levels and pursuing
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fair share of resources and moved up the economic efforts to limit the temperature increase to 1.5℃ above
rn
ladder. pre-industrial levels. The reason behind this is that it

would significantly reduce the probable risk and impacts
ou
The Paris Agreement on Climate Change (Hereinafter of climate change. Keeping in mind the global food
referred to as the Agreement), which was pursuant to production, the agreement aims at lower emissions of
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and guided by The United Nations Framework greenhouse gas, fostering climate resilience and
Convention on Climate Change 1 (Hereinafter referred increasing the ability to adapt to the adverse impacts of
na
to as The Convention) was implemented to enhance the climate change. Further, the agreement would, as per
objectives of The Convention. The main intent of the
io
Article 2 would be implemented to reflect equity and the

Agreement was to strengthen the global response to the principle of common but differentiated responsibilities.
nt
threat of climate change in the context of sustainable

development and efforts to eradicate poverty2. Many of the articles in the Agreement point out towards
er
the explicit principle of equity for example, recognizing

The agreement consists of twenty-nine Articles in total
nt
that Developing nations need support and guidance

of which twenty-one are legally binding articles, which during adaptation of the Agreement and it, not only
eI
are formulated keeping in mind the requirements of recognizes such vulnerability, it also encourages
developing countries during its adaptation. It disallows international cooperation in adaptation efforts and
Th
reservations under Article 27 which means that the acknowledges the importance of taking into account the
agreement needs to be accepted by the party states in its
1 The United Nations Framework Convention on Climate 3 Article 26 Id.at 1

Change, adopted in New York , May 9, 1992, available at 4 UNFCCC, The Paris Agreement , available at
https://unfccc.int/ (last accessed on 10.07.18) https://unfccc.int/process-and-meetings/the-paris-
2 Article 2, para , Id.at 1 agreement/the-paris-agreement (last accessed on 17.07.18)
*
194
needs of developing country parties, especially those developed and developing country parties. These
that are particularly vulnerable to the adverse effects of problems will be discussed in the following sections.
climate change5. It also states that the parties are to share
information relating to science, planning, policies and CONSEQUENCES OF RATIFICATION
implementation of adaptation process. It aims at OF THE AGREEMENT BY INDIA
improving the effectiveness and durability of adaptation
India has a great deal of stake in the Paris Agreement as
actions by providing assistance to developing countries
it stands to both lose and gain from the obligations that
ce
in identifying effective adaptation practices, needs and
the agreement imposes. The country is a pre-mature
priorities and by providing support in a manner that
en
power in the global climate governance as, not only is
encourages good practices6.
India’s Purchasing Power Parity (as in 2011) the third
ud
Further, Article 9 states that developed country parties largest in the world9, its annual greenhouse emission is
are to provide financial assistance to developing also third largest in the world10.India was reluctant to
pr
countries for both mitigation and adaptation under the sign the convention at first because of its legally binding
obligations of the Agreement7. It encourages the other nature, the reasons behind this could be threefold11- a)
ris
parties to also provide support voluntarily 8 . The To maintain an environmental goal of limiting global
Agreement also promotes the transfer of information warming and temperature rise, b) To ensure that the
Ju
and technical knowledge among countries for the Agreement does not cause any competitive disadvantage
greater good of the global environment. or economic downfall to its developmental goals, and c)
&
To secure equity in the access to the carbon space i.e.
Despite the above mentioned efforts and goals, the Paris the amount of carbon that India can emit into to
Agreement does not take into account the problem of
standardizing a common goal for all nations as the
feasibility of such standards is limited and most
L aw
atmosphere.
India’s ratification of the Paris Agreement portrays its

of
countries would fail to meet up with this goal. Further, active participation in and support for the
the problem of balancing developmental goals of implementation of this international Agreement. Some
al
individual countries with the common goal of accounts show India to be a highly vulnerable country
prevention of climate change is another aspiration second only to Bangladesh in the extent of its
rn
without practical implications. Lastly, the concept of vulnerability to climate impacts and so, India stands to
developed nations sharing resources and depends on benefit from the implementation of the Paris
ou
independent bilateral agreements and this is no necessity Agreement.

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on the developed nations to comply with such

India signed the Agreement on 22 Apr 2016 and
provisions. This leaves out several countries from the
na
ratified it on 2 Oct 2016; just before its entry into

aim of such goal due to lack of finance, technology and
force on 5October 2016. The Paris Agreement
knowledge.
io
became enforceable on the thirtieth day after 55

There are two prima facie problems with this Agreement; states representing 55% of total global greenhouse
nt
first is the inherent problem of enforceability of soft gas emissions ratified it 12 . Initially, 61 states,
er
laws and second is the setting of same standards for including the US, China and Brazil ratified the
Agreement and India’s ratification took the
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emissions coverage to 51.89%. This was followed by

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5Article 7, para 2 Id.at 1 http://siteresources.worldbank.org/ICPEXT/Resources/20

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6 Article 7, para 7(d) Id.at 1 11-ICP-Global-Report.pdf (last accessed on 30.07.18)

7 Article 9, para 1 Id.at 1 10 World Resources Institute, Climate Data Explorer, 2015
8 Article 9, para 2 Id.at 1 Available at http://cait.wri.org/ (last accessed on 29.07.18)
9 World Bank, Purchasing Power Parities and the Real Size 11Navroz K Dubash, Safeguarding Development and limiting
of World Economies: A Comprehensive Report of the 2011 Vulnerability: India’s Stakes in the Paris Agreement, 8 Wiley
International Comparison Program Washington, 2015, Periodicals, Inc., March-April, at 3
available at 12 Article 21, Id. at 1
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195
the EU’s ratification which took the Paris climate an important aspect, if not the focal point during
Agreement past the threshold for entry into force drafting of law and policies.
because of its 12.08% emissions share 13.
In furtherance to adapting the Agreement, the
At the global level, India is clubbed with countries Government of India has already constituted The
like China, Brazil and South Africa for climate Energy Research Institute (TERI)16, Observer Research
negotiations, but the multi-dimensional poverty Foundation (ORF)17 and Center for Study of Science,
ce
index puts India way behind these countries 14. This Technology and Policy (CSTEP)18for projecting a long-
goes to show that though India’s annual emission term low carbon growth trajectory for India and to
en
levels are very high, the per capita emissions of recommend three different future low carbon growth
individuals in the country are very low. This makes scenarios for the country. This is one of the steps India
ud
balancing of the aforementioned threefold problem has taken domestically to achieve its obligations under
very difficult as the part of Indian economy that is the Agreement. These institutions are to come up with
pr
causing the most emissions (that is the industries, their reports in about a year, much before the beginning
factories, power plants, etc.) are also the ones of the implementation of the Paris Agreement in 2020.
ris
contributing the most to the Gross Domestic
Product of the country.
Ju
THE KEY CONCERNS IN THE PARIS
During the deliberations of the Agreement, India AGREEMENT
&
made the following declaration;
International law may have both legally binding as well
aw
“The Government of India declares its understanding that, as per as non-binding agreements. There are some inherent
its national laws; keeping in view its development agenda, L enforceability issues when one looks at soft law19. To
particularly the eradication of poverty and provision of basic needs some extent soft laws have a normative force even
for all its citizens, coupled with its commitment to following the low though it is observed that these norms would not be
of
carbon path to progress, and on the assumption of unencumbered enforceable by an international court or other
availability of cleaner sources of energy and technologies and international organ. The Paris Agreement is a legally
al
financial resources from around the world; and based on a fair and binding international agreement; this means that in case
rn
ambitious assessment of global commitment to combating climate a member party does not comply with the provisions of
change, it is ratifying the Paris Agreement.15” the agreement, the party can be taken to the
ou
international court, but in the aftermath of this, the

This declaration not only puts an obligation over India authority of the verdict given by such court can be
lJ
to make all its laws and policies as per the Agreement, it questioned. When the international court gives an order,
also hints at the need for climate neutral laws. Climate
na
there is no way for it to guarantee its implementation.

change is a consequence of a summation of activities of Many countries follow up such orders to keep a good
human-kind which are or can be governed by the law.
io
name in the international domain or because it is in their

The concept of climate neutral laws aims at making interest. This is the first problem with the Agreement,
nt
er
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13 LavanyaRajamani, The Durban Platform for Enhanced 16 TERI, Energy and Climate, available at
Action and the Future off the Climate Regime, International http://www.teriin.org/climate (last accessed on 29.07.18)
eI
and Comparative Law Quarterly, 61 (2012) 17 ORF, Climate, energy and resources, available at
14 Dubash, supra note 15 https://www.orfonline.org/programme/climate-energy-
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15UNFCCC, United Nations Treaty Collection, Declaration, resources/ (last accessed on 26.07.18)
available at 18Center for Study of Science, Technology and Policy , About
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREA CSTEP, available at http://www.cstep.in/ (last accessed

TY&mtdsg_no=XXVII-7- 28.07.18)
d&chapter=27&clang=_en#EndDec (last accessed on 19 Pierre-Marie Dupuy, Soft Law and the International Law of
25.07.18) the Environment, 12 MICH. J. INT'L L. 420, 422-25, 428-31

(1991)
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196
which happens to be a common issue in International their economic and poverty reduction targets so that
Law. they seek to cap their annual gross emission levels.
Further, on examining the wordings of the Agreement, There is a notion that developed countries should bear
one will notice its vagueness. Though vagueness may historical responsibility for past emissions 21 . The
provide for scope for interpretation by different Agreement tries to bring equity and dilutes such a notion
countries so as to adapt the Agreement into their by creating same standards of balance between
ce
domestic laws, it also gives way for misinterpretation. development and climate change for developed and
The Agreement also has several provisions which are developing nations, but such equitability may not be fair
en
subject to inter-country relations. For instance, the for all parties. The structure of the Agreement provides
Agreement states that developed countries are to
ud
for each country to prepare Nationally Determined
support, guide and give technological and financial help Contributions (NDC’s), but it still sets a standard goal
to developing nations. Not only is this unenforceable i.e.
pr
for emission levels and global temperature control.
no nation can be taken to international court for not Developed nations have committed to reduce their
assisting other developing nations, but also it is subject
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emissions in absolute terms, whereas developing nations
to the foreign relations between the countries. And so such as India, keeping the need for poverty eradication
Ju
the need for a joint global action is affected by the in mind, have committed to reducing the emissions
country’s external and internal policies and political intensity of their economies over time22.
&
climate.
CONCLUSION
aw
The Paris Agreement under Article 2 states that; “…aims
to strengthen the global response to the threat of climate change, in
L The Paris Agreement is a very progressive document
the context of sustainable development and efforts to eradicate and a landmark in the UN climate negotiations. The
poverty… 20 ” The agreement not only fails to draw a Paris Agreement contains ambitious goal, extensive
of
correlation between eradication of poverty and climate obligations and comparatively rigorous oversight. The
change, it also does not take into consideration that to process of post-Paris negotiations will portray the
al
deploy resources for controlling emissions, there is a degree to which the Paris Agreement resolved the issues
rn
need for large capital investments and only the rich who it sought out to solve. Though many issues remain, it is
will be able to afford it will be able to continue staying still a promising piece of international law which shows
ou
in the market and this will further widen the gap among the confidence and compromise of 196 nations.
the rich and the poor. In a developing nation like India,
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balancing the two would be very difficult. India in its

Further, the Agreement takes a ‘broad-than-deep’
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declaration states that it aims to eradicate poverty and

approach to emission reduction, first expanding
provide basic needs to its people. These issues though
coverage of emission limits and then seeking depth of
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necessary to be worked upon, would not impact climate

commitments. This approach however, could lead to
change positively; though the author argues that they
nt
misinterpretation while formulation of domestic laws.

might have a negative impact if a large chunk of
India, at present is capable and has economic and
er
population suddenly moves towards industrialization

technological feasibility to fulfill its obligations under
and urbanization. Emissions intensity of the economy
the agreement in its current sense.
nt
means the amount of greenhouse gases a country emits

per unit of national income. The aim of the Agreement
eI
is that as large developing economies move closer to India has already started making efforts in this direction
by constituting research groups and making policy
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changes. Through its declaration, India also recognized

the need for climate neutral laws, which is the basis
20 Article 2, para 1, Id. at 1 22 Article 4, para 4, Id. at 1

21Dubash, Supra note 15
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197
underlying the goals of the Paris Agreement. Though

India, being a developing nation might find it difficult to
balance its developmental prospective and climate
change control, this Agreement is the closest to
determining the objectives and also lays down
procedural provisions on how to accomplish such goals.
ce
The Paris Agreement would be more effective in its
implementation if it looks at the individual progress of
en
nations rather than the objective of a common goal. As
ud
aforementioned, it would be very difficult for
developing nations to meet up the same standards as
pr
their developed counterparts because their national
developmental goals would suffer and so if progress of
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nations is noted with the percentage increase in their
proximity with the Global temperature goal and the
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nations have to give annual reports of their progress, the
system would be more feasible.
&
Further, the Paris Agreement more technologically
feasible if the UNFCCC were to hold the knowledge
and technological know-how and provide it to the
nations in need. This would be easier to implement that
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of
enforcing developed nations to share such information.
al
The Paris Agreement overall manages to justify cautious

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optimism about the future of international climate

regime. Its provisions and the reasoning behind its
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architecture and structure withstand the loopholes

which are inherent in such a vast multi-lateral treaty. It
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may or may not be successful, but it manages to direct

the international climate change negotiations and
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objectives in the right direction for sustainable

development and climate change control.
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er
nt
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PHARMACEUTICAL PRODUCT LIABILITY UNDER

TORT LAW: LACUNAE IN INDIA
SURYANSHU PRIYADARSHI
ce
THE CONCEPT OF TORT LAW PRODUCT LIABILITY AND THE TORT
en
LAW
“Law of Torts” in India is mainly in accordance to the
ud
English law of torts which is based on the principles of Product liability is governed by various statutory
the ‘common law’. In the Indian scenario, its adoption enactments and court rulings that apply to any concern
pr
was facilitated by moulding it against the idea of justice, manufacturing or selling a product. It is a duty of the
ris
equity and good conscience. In the Indian legal system, business in question to ensure that their product does
the concept of “punishment” occupies a more not pose any threat to public and in case of any shift
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prominent place than “compensation”, and therefore from this premise they can be held liable to settle claims
Torts adoption as a branch of law and litigation is not a arising out of damage caused. According to Section
&
very regular event. A tort is an act or omission that gives 102(2) of the Uniform Product Liability Act, product
rise to injury (infringing of any legal right) or harm (a liability includes “all claims or action brought for
aw
loss suffered by an individual) to another and amounts personal injury, death, or property damage caused by the
to a civil wrong for which court imposes liability. The L manufacture, design, formula, preparation, assembly,
liability typically falls on the party at fault, who as per installation, testing, warnings, instructions, marketing,
court’s direction either has to pay in monetary sum to packaging, or labelling of any product.”2 The concept
of
make good the loss suffered (e.g. loss of future earning has gained ample relevance amongst manufacturers and
capacity, pain and suffering, etc) by the injured party (i.e. marketing managers due to adoption of concepts like
al
compensatory damages) or abide by an injunction order Strict Liability and other ideas that aid recovery in the
rn
and restitution (though these are less common). In so-called “delayed manifestation cases”.
certain cases, courts will award punitive damages in
ou
addition to compensatory damages to deter further In addition to making safe products for human usage,
misconduct. Torts can be segregated under three the responsibility is further extended to prominently
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categories – intentional torts (wrongs that the defendant displaying warnings of any possible hazards from the
product. Though the existence of product liability
na
knew or should have known would result through his or

her actions or omission), negligent torts (when insurance covers the business’ risk, in case of any claim
arising, yet these are not very prevalent. Firstly, because
io
defendant’s action were unreasonably unsafe), strict

liability torts (unlike intentional and negligent torts, of the large number of product liability suits that are
nt
degree of care exercised is immaterial here; court filed with a view of seeking redressal, and the amount of
monetary compensation demanded under them, which
er
focuses solely on whether any harm manifested or not).

Although tort law varies by state, many courts utilize the is exorbitantly high, the insurance firms price their
nt
Restatement of Torts (2nd) as an influential guide.1 policies at soaring rate. In fact, the expense of insuring
against product liability has prevented manufacturers
eI
from venturing into certain product areas.3

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1 Cornell Law School, TORT (Sept. 14, 2018, 11:50 PM), (American Bar Association. Section of Insurance, Negligence and
https://www.law.cornell.edu/wex/tort Compensation Law) Vol. 15, No.4 697,697-699 (Spring 1980)
2 Warren Freedman, COMMENTARY: MODEL 3 A Concise Restatement of Torts (3d The American Law
UNIFORM PRODUCT LIABILITY ACT The Forum Institute, 2013)
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199
DEVELOPMENT OF PRODUCT PHARMACEUTICAL PRODUCT

LIABILITY LAWS LIABILITY CONCEPTUALIZATION
UNDER TORT LAW
Product Liability came into limelight in the mid-1800s,
when the American courts increasingly found that Product liability is one of the most relevant and
sellers of goods owed a duty of reasonable care in the economically substantial area of functioning of tort law.
production of those goods. Sellers were made liable for Product liability actions against pharmaceutical
ce
damage caused to third party due to negligence in companies are among the most widely publicized
manufacture or sale of goods of “inherently dangerous” (receive media attention and has adverse effects on a
en
nature, this encompassed commodities like – drugs, company’s reputation) classes of suits (class action suits)
firearms, explosives, etc. Privity of contract was a crucial in the United States and Europe.7 Over a time-span of
ud
requirement during this period to raise a claim under approximately thirteen years, U.S. pharmaceutical
product liability but was later done away with, as can be companies have settled claims amounting to billions of
pr
inferred from the case of Donghue v. Stevenson (1932)4 dollars under the product liability doctrine itself. For
which promulgated the “Neighbor Principle” example, in June 2010, GlaxoSmithKline (GSK) Paid
ris
(Responsibility for a product defect that causes damage $2.36 billion to settle claims arising out of class action
lies with all sellers of the product who are in the lawsuits over Avandia, a treatment for Type 2 diabetes;
Ju
distribution chain including the product manufacturer, GSK had also paid $1 billion to settle class action over
wholesalers, retail stores, etc)5 The case of Macpherson Paxil, a treatment for depression in December the
&
v. Buick Motor Co., 217 N.Y. 382, broadened the preceding year. 8 Tracing back to the basics, Product
aw
category of “imminently” or “inherently” dangerous liability under tort law fixes up the responsibility on a
products so as to effectively abolish the privity manufacturer or vendor of a product to ensure that it is
requirement in the negligence cases. It held that lack of safe and do not cause injury. Products falling under the
L
privity is not a defense if it is foreseeable that the ambit for seeking damages include all consumer goods,
of
product, if negligently made, is likely to cause injury to a medical devices, etc., and consumable goods such as
class of persons that includes the plaintiff. Because this food and prescription drugs. Goods in due course of
al
is essentially the test for negligence, the exception their normal use are not intended to cause harm and in
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swallowed the rule. The Macpherson case quickly case it happens, manufacturers/vendors of unsafe
became a leading authority, and the privity rule in products are subjected to recovery of damages.
ou
negligence cases was soon ignored.6 In the early 1960s,

Tort principles came into usage to deal with product In the Indian scenario, there is no specific statute
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liability disputes, the concept of “inherently” dangerous governing the pharmaceutical product liability, but
was still into play but requirement of due care to be product liability as a general concept is catered to by the
na
practiced by manufacturers in consonance with following legislative enactments – The Consumer

Protection Act, 1986; The Drugs and Cosmetics Act,
io
negligence principle under tort gained a stronger

foothold, primarily on marketing of goods to users 1940 and the Drugs and Cosmetics Rules, 1945; The
nt
aspect. Drugs and Magic Remedies (Objectionable

Advertisements) Act, 1954 and the Drugs and Magic
er
Remedies (Objectionable Advertisements) Rules, 1955;

nt
4 Donghue v. Stevenson, SC (HL) 31, (1932) 7 Pharmaceutical Product Liability (Sept. 13, 2018, 10:00 PM),
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5 HAN W. CHOI & JAE HONG LEE, Chapter – 55 https://diethylstilbestrol.co.uk/pharmaceutical-product-

Pharmaceutical Product Liability – 688-702, PRINCIPLES liability/
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AND PRACTICE OF PHARMACEUTICAL MEDICINE, 8 Michael Zhang, Current Trends in Tort Reform and
(3d Lionel D. Edwards et.al. eds., Blackwell Publishing Ltd Pharmaceuticals Manufacturers’ Liability: Michigan’s
2011) Combination Product Exception (Sept. 14, 2018, 11:00 PM),
6 Product Liability – Historical Development (Sept. 14, 2018, http://stlr.org/2014/12/02/current-trends-in-tort-reform-
10:00 PM), http://law.jrank.org/pages/9466/Product- and-pharmaceuticals-manufacturers-liability-michigans-
Liability-Historical-Development.html combination-product-exception/
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200
The Legal Metrology Act, 2009 and the Legal Metrology principles under which a seller of a product can be liable
(Packaged Commodities) Rules, 2011; The Indian from damages incurred from the use of that product:
Contract Act, 1872; The Sale of Goods Act, 1930; strict liability, warranty, tortious misrepresentation and
Prevention of Food Adulteration Act, 1954; Law of negligence; all of these being tort law concepts.14
Torts.9 For instance, The Indian law dealing with sale of
goods is codified under two pieces of legislation: The Strict Product Liability
Sale of Goods Act, 1930 & The Indian Contract Act,
The adoption of the principle of Strict Liability as
ce
1872. The Indian Contract Act, 1872 deals with the
devised under the case of Rylands v. Fletcher (1868)15,
general law relating to contracts entered into between
en
has transformed the very nature of product liability
parties for the accomplishment of a particular object,
claims. Section 402A of the Restatement (Second) of
while The Sale of Goods Act, 1930 lays down special
ud
Torts included a provision that created strict liability on
rules of law which are peculiar to sale of goods. It
the part of the manufacturer. Under this section, a
provides for various implied conditions and warranties
pr
manufacturer is liable for product defects that occur
on the part of the seller, breach of which provides for
during the manufacturing process, notwithstanding the
ris
cause of action to the consumer to seek
degree of care employed by the manufacturer. Courts
damages/compensation.10 The Sale of Goods Act, 1930
later extended the strict liability principles to include
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contains no penal provisions nor does it lay down any
cases that did not involve errors in manufacturing, such
special rules of evidence or legal procedure to be
as cases involving a failure of a manufacturer to provide
&
complied with. The Provisions under The Indian
ample warnings 16 . Strict Liability’s introduction has
Contract Act, 1872 aids the filling up of lacunae
eliminated the entire question of negligence, i.e. the
aw
emerging under The Sale of Goods Act, 1930 (like, both
mere fact of injury due to defect is sufficient to demand
these acts contains provisions governing damages). 11
compensation, the reason for the defect is immaterial.
Similarly, under The Drugs and Cosmetics Act, 1940 –
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Thus, strict liability would hold pharmaceutical
Section 13 lays down a list of offences ranging from
of
companies liable under product liability, even when they
subject areas like adulterated medicines to spurious
had impeccably researched their drugs. Strict Product
quality medicines 12 , The Drugs and Magic Remedies
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Liability directs liability to any member in the

(Objectionable Advertisements) Act has provisions
distribution chain and not only on the manufacturer.
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dealing with false claims where punishment in the form

Pharmaceutical companies would not be held liable
of 6 months to 1 year of imprisonment with fine, or
under strict liability if the product is “unavoidably
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both, prescribed upon first and subsequent conviction

unsafe”, i.e. its benefits can outweigh its dangers, etc.
as the case may be.13
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The liability under this is placed after due consideration

Product Liability law, generally and as it pertains to of the state of scientific knowledge and technology at
na
pharmaceutical companies, is broadly based on legal the time when the product is sold and not when the suit
principles involving contract law, tort law, and relevant comes up for hearing (i.e. whether the existing state of
io
statutory provisions of the country or jurisdiction where scientific knowledge and technology can make known
nt
the action is brought. However, there are four basic the possible dangers associated with the product, this
er
9 Product Liability in India (Sept. 15, 2018, 12:00 PM) http://www.cdsco.nic.in/writereaddata/Drugs%20and%20

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http://www.hariani.co.in/newsletters/23108_December_03 Cosmetics%20Act%20and%20%20Rules2016.pdf
_2012_NL.pdf 13 The Drugs and Magic Remedies (Objectionable
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10 Product Liability in India (Sept. 15, 2018, 12:00 PM) Advertisements) Act, 1954 (Sept. 10, 2018, 09:00 PM)
http://www.hariani.co.in/newsletters/23108_December_03 http://www.rfhha.org/images/pdf/Hospital_Laws/Drugs_
Th
_2012_NL.pdf magic_remedies_%28%20advertisement%29_act.pdf
11 Gowree Gokhale et.al., India (Sept. 15, 2018, 01:20 AM), 14 Pharmaceutical Product Liability (Sept. 15, 2018, 10:00
http://www.nishithdesai.com/fileadmin/user_upload/pdfs/ PM), https://diethylstilbestrol.co.uk/pharmaceutical-

Product_Liability_-_issues_and_concerns.pdf product-liability/
12 The Drugs and Cosmetics Act, 1940 (Sept. 12, 2018, 09:30 15 Rylands v. Fletcher, LR 3 HL 330, (1868)
PM) 16 A Concise Restatement of Torts (3d The American Law
Institute, 2013)
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201
also relieves the manufacturer from duty to warn of the type of damage suffered by the plaintiff is actionable or
unknowable danger). The manufacturer is held to be of not. The plaintiff must also demonstrate that there is a
the standard of an expert in determining what was sufficient causal connection between the defendant’s
known or knowable. There are primarily three types of negligence and the damage incurred. The damage in
defects that can help invoke manufacturer’s or supplier’s question may arise through malfeasance (a wrongful or
liability - Manufacturing defect (difference between illegal act) or non-feasance (a wrongful or illegal failure
design intended to be manufactured and the actual to act) and may consist of personal injury or damage to
ce
outcome attributable to the manufacturing process; yet property considered as pure economic loss under civil
it is rare as the quality control standards are closely law. Every party in the distribution chain for a drug can
en
regulated and have been extremely high in the be held liable in case they have breached their duty of
pharmaceutical industry since its very inception), design care.18
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defect (all the items of a product line bear a similar
feature whose design is defective and unreasonably Tortious Misrepresentation
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dangerous; design defects though dealt under strict
A product liability claim can arise due to dissemination
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liability principle also gives rise to allegations on
of false information that is conveyed by the
negligence ground towards the manufacturer citing that
manufacturer of a product. A person injured due to
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he should have been aware of the safety attributes of his
passage of such information can recover from the seller.
design and, in failing to do so, breached its duty of care)
The basis of such recovery depends on the false
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and failure-to-warn defects (improper labelling,
communication that was made and not a defect in the
insufficient instructions, or inadequate safety warnings
product. Such misrepresentation can precisely be of two
aw
pertaining to dangers and harms associated with the
forms – where the seller knows the falsity of the
product come under this head; it aids the consumer to
statement but intends to make the false representation,
make sound judgments regarding whether to use the
L
negligent misrepresentation (where the person was
product or not, etc), but only post-proving by the
of
negligent in ascertaining whether the statement was true
plaintiff that the product that caused the injury was
or not).
defective and the defect made the product unreasonably
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dangerous.17 Warranty
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California was the first state to adopt Strict Products Warranty allows a purchaser of a product to direct
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Liability in 1963 and in the present scenario, plaintiffs liability against the immediate seller of the concerned
routinely assert strict liability claims along with other product, if the purchaser can show that the seller
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tort claims and contract claims while filing a product expressly or implicitly made representations as to the
liability law suit. quality of the product, that was ultimately found out to
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be false (negligence is not required to be proved on part

Negligence of the seller by the plaintiff). 19 Absence of negative
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Negligence is a principle of tort law that may be defined intent or honest representation will not sustain as a valid
nt
as the breach of a duty of care owed by the defendant to defense for the seller and the purchaser will nonetheless
recover for damages sustained. For example, in the US,
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the plaintiff resulting in damage to the latter. The

concept of duty of care defines the interests protected the UCC contains provisions regarding warranties and
nt
by the tort of negligence by determining whether the constitutes the legal ground for product liability actions
eI
Th
17 HAN W. CHOI & JAE HONG LEE, Chapter – 55 18 Pharmaceutical Product Liability (Sept. 13, 2018, 10:00
Pharmaceutical Product Liability – 688-702, PRINCIPLES PM), https://diethylstilbestrol.co.uk/pharmaceutical-
AND PRACTICE OF PHARMACEUTICAL MEDICINE, product-liability/
(3d Lionel D. Edwards et.al. eds., Blackwell Publishing Ltd 19 Clarke v. Army & Navy Cooperative Society Ltd., 1 K.B.
2011) 155, (1903) - the seller was liable for the injury sustained by
Clarke’s wife because of breach of warranty; purchaser not
informed about the danger posed by the product.
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202
brought under the ambit of warranty. UCC20 Section 2- Commission Improvement Act of 1974, 15 USC
313 provides that an express warranty may be Section 2301 24 , et seq., provides that, if a written
showcased by an “affirmation of fact or promise” about warranty is given to a consumer, there cannot be any
a product by - a description of that product or by the disclaimer of any implied warranty.
use of a sample or model. The existence of a warranty
as to the quality of a product may also be inferred from Contributory Negligence
the fact that the seller has offered the product for sale.
A defense of contributory negligence declares that a
ce
The UCC also imposes several implied warranties as a
plaintiff who is himself negligent in the act and he does
matter of law. The most important of these is the
en
not take reasonable care to protect himself from
warranty of merchantability under UCC21 Section 2-314,
damage, and whose negligence contributes proximately
which states that the warranty, that goods shall be
ud
to his injuries, is either entitled only to reduced recovery
merchantable (fit to be offered for sale) is implied in a
from his damages, or in some countries and states, is
contract for their sale, if the seller is a merchant with
pr
totally barred from recovery. In these cases, the plaintiff
respect to goods of that kind. Similarly, a retailer who
is held to maintain the same standard of care as the
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did not manufacture a product is nonetheless held to
defendant, which is that of a reasonable party similarly
have impliedly warranted its merchantability by virtue of
situated. Although a plaintiff’s contributory negligence
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the fact that he has sold it, assuming that the person
will be a defense in product liability actions brought
deals in goods of that kind.22
under the principles of negligence, some courts have
&
stated that this might not be a viable defense under
DEFENSES TO PRODUCT LIABILITY
certain circumstances like suits brought under the
aw
CLAIMS
principles of warranty or strict liability, contributory
The defenses available to manufacturers in product negligence; but this is not static due to the jurisdictional
L
liability suits vary, depending on the area of law under dynamic variance from place to place. For example, if a
of
which the action is filed. However, certain legal plaintiff’s contributory negligence lies in a failure to
principles usually form a full or partial defense to inspect the product or a failure to become aware of the
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product liability actions. These broad legal principles danger from that product, almost all courts agree that
are: disclaimers, contributory negligence, and learned this is not a defense. However, if the plaintiff after
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intermediaries. knowing about the possible risks still purchases/uses

the product, contributory negligence may be a defense
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Disclaimers to strict liability. Similarly, if the plaintiff’s contributory

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negligence consists of his or her abnormal use or misuse

With regard to product liability actions brought under
of the product in question, this may be a defense to strict
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the principles of warranty, a defendant may claim a

liability, depending on the degree of foreseeability of the
defense based on a disclaimer, referring to a warranty
abnormal use or misuse.
io
associated with the purchase or use of the product up

for argument. For example, in the US under UCC Learned Intermediaries
nt
Section 2-316(2)23, if the merchantability of the warranty

Pharmaceutical manufacturers often rely on the
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is conspicuous, a seller of the product may have to make

a disclaimer in this regard. However, it should also be “learned intermediary” defense, which suggests that if
nt
highlighted that the Magnuson–Moss Federal Trade the manufacturer properly warned or instructed a
physician (the “learned intermediary”) who then
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Th
20 Uniform Commercial Code – Section 2-313 (Sept. 15,2018, 23 Uniform Commercial Code – Section 2-316(2) (Sept.
01:20 PM), https://www.law.cornell.edu/ucc/2/2-313 15,2018, 01:20 PM), https://www.law.cornell.edu/ucc/2/2-
21 Uniform Commercial Code – Section 2-313 (Sept. 15,2018, 316
01:20 PM), https://www.law.cornell.edu/ucc/2/2-314 24 15 U.S. Code Section 2301 (Sept. 15, 2018, 01:27 PM),
22 Pharmaceutical Product Liability (Sept. 13, 2018, 10:00 https://www.law.cornell.edu/uscode/text/15/2301
PM), https://diethylstilbestrol.co.uk/pharmaceutical-
product-liability/
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203
to protect the people from the arbitrary persecution and on the throne, but also led to the English Bill of Rights,
to punish wrongdoers. Even in addition to this there in 1689.
were few more legal documents such as Babylonian
The English Bill of Rights was primarily focussed upon
laws, Assyrian Laws, Hitti Laws and in the Dharma of
basic and fundamental concerns of the time. Law was
the Vedic Period in India.8 It is evident form historical
considered as equal for all. King was supposed to be
footprints that right to freedom of speech, right to
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under the rule of law. His rights and liberties against
equality, right to cast vote and elected to public office,
en
violation of rights of individual was restricted by the law.
right to access to justice were augmented since the old
It was with an aim that king or people in the society
ud
Greek city states. The jus civile the roman law was
should respect law as well as the power of parliament
example to evolve law with historical reasons, existing
pr
which elected by people and it should have control over
values and customs which ultimately recognized the
factors like money and property. It also strives for
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rights of individuals. Though the term ‘human rights’
recognizing and protecting fundamental rights of people
was not specifically referred but the purpose was to
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like excessive bail or fines, cruel and unusual
strive for recognition of interests of individuals in the
punishments and unfair trials: it guaranteed juries,
&
society.
impartial courts and independent judges. It reiterated
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The Magna Carta ‘widely known document’ was some of provisions made by King John in the Magna
adopted by King John of England on June 15, 1215 to Carta.
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revival of rights and duties and came as a declaration to
of
In 18th century, according to John Locke, a natural law
the people of England that the King would not infringe
lawyer stated that, it was part of God’s natural law that
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upon their privileges in arbitrary manner. It was made

no one should harm anybody else in their life, health,
rn
with an aim to save people of arbitrary levying of taxes

liberty or possessions. These rights could never be given
and it was made it clear that people had certain rights,
ou
up. The existence of this natural law also established the

which the King is bound to recognize and if he fails to
right to do whatever was necessary to protect such
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do so, be compelled to observe by force. The protection

rights. It provided that people should maintain
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of the rights, especially the right to political

relationships among themselves and government will be
participation, and freedom of religious belief and
io
available to protect their rights. The government looked

observance, against an oppressive government was the
nt
into the matters of people only in case of violation of

most important to save the people from government
nay right which provided limited role of government in
er
which laid to English Revolution of 1640 (which led to

participation of public affairs. Later on, people became
nt
rebel leader Oliver Cromwell) heading the government,

supreme to reject or overthrow the government if it
and the King being executed). It was laid revolution of
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could not function for the betterment of people.

the civil administration famously known as the
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‘Glorious Revolution – of 1688’ which saw another king This ideology laid to evolution of the American
Colonies’ Declaration of Independence in 1776. This
8 H.O. Agarwal, Human Rights, 4, (6th ed., 2000).
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111
not only avowed that governments were established by Rights. The Preamble to the Universal Declaration of
the consent of the people to augment the rights, but Human Rights declares : “Recognition of inherent
unforgettably expressed these rights in the terms that : dignity and of the equal and inalienable rights of all
“all men are created equal, that they are endowed by their Creator members of the human family is the foundation of
with certain inalienable rights, that among these are Life, Liberty freedom, justice and peace in the world.”12
and the pursuit of Happiness”9 In 1789, as a result of the
ce
United Nations, later adopted a number of international
French Revolution, the Declaration of the Rights of
en
convention, covenants, declarations, and other treaties
Man and of Citizens asserted the primacy of natural
that have followed the tradition. Several nation-states
ud
rights in similarly inspirational terms to the US
have also adopted human rights standards based on the
Declaration of Independence. 10 The Declaration of
pr
guidelines. Many nations have incorporated rights into
French Revolution, which may be regarded as a concrete
their domestic constitutions – acknowledging that the
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political statement on Human Rights which was inspired
rights exist, not that they are created by their laws.
by the Lockeian philosophy declared : “ The aim of all
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Respect for human rights is becoming a worldwide
political association is the conservation of the natural
principle of good governance.
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and inalienable rights of man.”11
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The expression ‘human rights’ was recognized in the
HUMAN RIGHTS LAW IN INDIA
post second world war when individual became the The Constitution of India, adopted and enacted on 26th
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subject of International law. Human rights got November 1949 and commenced from 26th January
of
international origin and which laid to adoption of 1950 was influenced by the concept of human rights.
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Charter of United Nations,1945 at San Francisco. The The Preamble, which contains the ideals and aspirations
rn
preamble of the UN Charter declares that the United or the objects, intended to be realized by the
Nations shall have for its object, inter alia, “to reaffirm Constitution states that the Constitution is enacted “…
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faith in ‘fundamental human rights’ …” In Art. 1 of the to secure to all its citizens: Justice – social, economic and
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UN Charter it is stated that the purposes of the United political ; liberty of thought expression, belief, faith and
na
Nations shall be, among others, “to achieve worship; Equality of status and opportunity; and to
international cooperation… in promoting and promote among them all fraternity assuring the dignity
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encouraging respect for human rights and for of the individual…”13

nt
fundamental freedoms for all without distinction as to

The Constitution of India is a such document which
er
race, sex, language, or religion…” In 1948, UN General

confluence common law system, civil law, customary
nt
Assembly adopted the Universal Declaration of Human

law as well as religious laws. India as a nation-state, is
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Th
9 American Colonies, The Declaration of Independence, (1776) http://avalon.law.yale.edu/18th_century/rightsof.asp last

available at visited on 01/09/2018.
10 https://www.bl.uk/collection-items/the-declaration-of- 12 U.N. General Assembly, Universal Declaration of Human
the-rights-of-man-and-of-the-citizen last visited on Rights, Res. 217A , (10/12/1948), available at

07/09/2018. http://www.un.org/en/documents/udhr/ last visited on
11 France National Constituent Assembly, The Declaration of 07/09/2018.
French Revolution, (1979) available at 13 Preamble (The Constitution of India, 1950).
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112
Commodities Ltd. And Ors. (1993) 32 a “class action CONCLUSION

complaint” was filed claiming “unspecified damages”
against the concerned authorities for their “composite All of these above-mentioned case laws of the Indian
negligence” on grounds of injury in the form of judicial system deal with the issue of product liability
paralysis, etc; of permanent nature due to consumption with a slight reference to tort principles, but it is
of adulterated Rape-seed oil (containing Argemone Oil astonishing to note that Pharmaceutical Product
and Tricreasyl Phosphate both known toxic Liability is still untouched by tort principles of
ce
adulterants). The above-mentioned case though filed for unliquidated damages in the Indian Judicial System.
hearing in front of a consumer forum of competent Most enactments resolving the issue of Pharmaceutical
en
jurisdiction made use of the theories found under the Product Liability in India (as cited in the earlier parts of
tort law – class action suits, unspecified damages, etc. this paper) impose a liquidated or predetermined
ud
monetary fine or an imprisonment (penal) provision or
Similarly, in Narayanan Vyankatkrishnan Iyengar v. both on the violator. This system is in dire need of a
pr
Shakti Food and Ors. (1994)33 filed for hearing before reform as it has been in existence from a time when the
the Maharashtra State Consumer Dispute Redressal state of technology, etc was of a very primitive nature as
ris
Commission, Mumbai, the manufacturer as well as the compared to the present-day scenario. The presence of
supplier were both held liable to the injured party after liquidated damages is an inadequate means of making
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due deliberations pertaining to affixing of liability to pay good the loss suffered by the plaintiff [for e.g., providing
the claimed amount was conducted – the scenario here Rs. 25000/- to children pursuing education, who were
&
is somewhat similar to the one found under the case of permanently disabled due to consumption of
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Donghue v. Stevenson (1932)34 – ginger-beer bottle case adulterated Rape-seed oil in the case of Barsad Ali and
- which established the “neighbor principle” making the ors. V. The Managing Director, West Bengal Essential
manufacturer liable to a 3rd party as well (i.e. someone Supplies Commodities ltd. And ors. (1993) 36 is grave
L
beyond the scope of privity of contract concept). injustice in the name of rendering justice, etc.]
of
Ganga Gas Service v. Lalita Sharma (1999)35 highlighted Furthermore, the inclusion of penal provision in most
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the concept of “Principal-Agent” and “degree of Care” Pharmaceutical Product Liability Laws in India prevents
that needs to be practiced by concerns dealing in goods and restrains the pharmaceutical manufacturing entities
rn
that can prove hazardous or even fatal to human life, to fund Research in areas where the possible liability
the case concerned itself with the issue - of a defective
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claim amount is much higher than the return from the

regulator and its replacement not being done promptly, invention or product so accomplished. (For example, in
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the court after hearing the merits of the case held that the U.S. certain areas of Pharmaceutical Research can
regulator of a gas stove system is a product of hazardous have litigation amount equivalent to $1 with a return
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nature, & thereby ordered the concerned authorities to from the same area and quantum summing up to a mere
facilitate its speedy replacement, along with payment of $0.37 )37. Therefore, it is vital to include Tort as an area
io
damages to the aggrieved party. The initial replacement of litigation concerning Pharmaceutical Product
nt
was to be undertaken by the gas agency and later the Liability in India, as it would provide aid in delivering
cost-incidence was to fall over the principal i.e. Indian appropriate compensation to the injured party by
er
Oil Corporation in this case. bringing into usage the unliquidated damages concept
nt
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32 Barsad Ali and Ors. v. The Managing Director, West Bengal 36 Barsad Ali and Ors. v. The Managing Director, West Bengal
Essential Supplies Commodities Ltd. and Ors., 1 (1993) CPJ Essential Supplies Commodities Ltd. and Ors., 1 (1993) CPJ
Th
173 (India) 173 (India)

33 Narayanan Vyankatkrishnan Iyengar v. Shakti Food and 37 Michael Zhang, Current Trends in Tort Reform and
Ors., II (1994) CPJ 652 (Maha.)(India) Pharmaceuticals Manufacturers’ Liability: Michigan’s

34 Donghue v. Stevenson, SC (HL) 31, (1932) Combination Product Exception (Sept. 14, 2018, 11:00 PM),
35 Ganga Gas Service v. Lalita Sharma, II (1999) CPJ 573 http://stlr.org/2014/12/02/current-trends-in-tort-reform-
(Punj.)(India) and-pharmaceuticals-manufacturers-liability-michigans-
combination-product-exception/
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206
and also doing away with the penal provisions implying

the possible imprisonment tenures, thereby enabling
Pharmaceutical Companies to carry-out research in risky
domains. The entire tort debate can be thought of as a
two-edged sword carrying its own risks and benefits.
ce
en
ud
pr
ris
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&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
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Th
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207
A LEGAL ECONOMIC ANALYSIS OF E-

CONTRACTS IN E-COMMERCE IN INDIA.
SNEHA DEY
ce
INTRODUCTION contracts are clearly notified to the party to be bound by
en
the terms, either:
Contract law has played an instrumental role in
ud
governing agreements between parties and in ensuring  By means of requiring the party to scroll through
that parties abide by their promises they make to their the terms before accepting; or
pr
counterparts and thereby be fixed with liability in case  By clearly presenting the terms or a link to them on
of a breach with respect to the promises made. In the the webpage where the acceptance mechanism
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world of technology where internet has revolutionized resides, such that the other party has complete
our live, E-Contracts have started gaining momentum. knowledge and consensus ad idem exists between
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In a very short span of time, E-Contracts became very the parties as to the terms and the contract,
popular such that on an average, a user enters into a
&
A Shrink – Wrap Contract on the other hand, is one
large number of Electronic contacts such that at times
where the terms and the conditions relating to the
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he is not even aware of the fact that he is a party to a
contract are provided along with the product and the
contract. Contracts are being entered into and
consumer on account of tearing open the plastic which
performed in a wink of eye. In light of this the various
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encloses the software agrees and accepts the terms and
kinds of E-Contracts persisting are: –
of
conditions of the software which was enclosed in the
 Click-Wrap Contracts packet. In a shrink-wrap contract the buyer is bound by
al
 Shrink- Wrap Contracts the terms and conditions of the sellers and it is the seller
who dictates the buyer. In this form of contract, the
rn
 Browse- Wrap Contracts

acceptance of the buyer and its acknowledgement to the
In a Click – Wrap Contract, a binding agreement seller is communicated by means of the buyer opening
ou
comes into existence between the parties when the user the software packaging. The case of ProCD, Inc. v.
Zeidenberg 2 was a landmark decision in the field of
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agrees to the terms of the agreement by clicking on the

“I Accept” button or by simply typing “ I Accept ” to Shrink- Wrap agreements involving software wherein a
na
the terms. Such Contracts are usually found in instances federal district court had ruled that a shrink-wrap license
of installation of a software or in a case where a software was unenforceable against the end user under the
io
is downloaded. These are standard form of contracts relevant contract formation provisions of the UCC
nt
where the terms and conditions purporting to it are (Uniform Commercial Code ), because the end user did
fixed and the buyers have no option than to either not see the terms of the shrink-wrap license until after
er
accept the terms of the agreement or to reject it. Such the purchase was consummated. The court held that the
contracts are also known as ‘take it or leave it’ contracts. entire terms of the license agreement had to be visible
nt
the question of the enforceability and the binding value on the packaging of the software before the purchase
eI
of a Click-Wrap Contract can be traced to the landmark was consummated in order for the terms of the license
case of Specht v Netscape1, where in the US courts to form part of the bargain between the parties.
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found that a Click-Wrap Agreement can be effective and However, this decision was overturned by means of an
can have binding value, when the terms of online appeal, where the Seventh Circuit, which held that
shrink- wrap licenses are enforceable unless their terms
are objectionable on grounds applicable to contracts in
1
Specht v Netscape, 306 F.3d 17. 2 ProCD, Inc. v. Zeidenberg 86 F.3d 1447.
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208
general and this has caused great uncertainty regarding the jurisdiction of a country over the online
the contract formation for a shrink-wrap license transaction, enforceability of a judgement whereby
agreement which is yet to settled. parties to the suit reside in two separate countries,
etc.
Lastly a Browse-Wrap Contract, is used for accessing 2. Determining the Place of Cause of Action in the
materials or information on a website or a product that event of a breach of a contract by any of the parties
is downloadable. In a browse- wrap agreement, a to the contract.
ce
binding contracts comes into place when a user uses a 3. Distinguishing between an Offer and an Offer
product by means of entering the website or for Sale in case of E-Commerce whereby the
en
downloading the content from such a website. In such consumers buy goods from different online portals
agreements the terms and the conditions are in the form considering the fact that there is no differentiation
ud
of a hyperlink and as soon as the user clicks on such a made between these two in the online portals that
hyperlink a valid contract comes into place. It offers goods for sale.
pr
incorporates the principle of constructive notice 4. Breach of Privacy of a Consumer, by means of
whereby the user is deemed to have notice to the terms
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storing of information of personal nature by the
and the conditions of the software, product or online web portals or through cookies and web bugs
information as soon as he/she clicks on the hyperlink.
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that collect information whenever a user accesses
This contract might seem similar to a Click-Wrap any website and stores it in their hard drive thereby
contract; however, it differs from it in terms of explicit
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leading to the breach of privacy of a consumer.
manifestation of assent of the user by clicking on “I 5. Liability of the 3rd parties such as the network
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agree” option. provider in instances of a network failure leading to
the disruption of the process of contract formation
LEGAL ISSUES INVOLVED IN E-
L or causing breach thereby on part of any of the
CONTRACTS IN E-COMMERCE IN parties to the contract.
of
INDIA 6. Limitations on the freedom to contract between
the parties which is curtailed by the presence of
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E – Commerce is associated with the trading of goods

(buying and selling) over the internet in a global forum. standard form of contracts in instance of E-
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The cyberspace is an open forum where any individual Commerce such that buyers are left with no choice
belonging to an X country may buy or sell products to than to either accept the terms of the contract or
ou
another individual belonging to a Y country. Being an reject it.

open international forum, where citizens all over the 7. Trademark Infringement - Domain Name
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world have access to the internet. It becomes difficult to Registration is one example of how the Internet
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decide which law should be applicable to the parties provided a challenge to traditional trademark and
contracting online. While in certain cases, parties affix trade name protection. While trademark law
io
the law they should be bound with in the event of breach enabled a company to register its marks so as to
prevent marketplace confusion as to the origin or
nt
of a contract, however such instances in the daily life are

rare and a great sense of ambiguity arises infixing as to quality of the product, all bets were off when
er
the laws of which country should be applicable to the domain name registration first commenced.
parties in the event of breach of contract. Trademark law permits multiple parties to use the
nt
same name, provided it is for different goods and

The various kinds of legal issues involved in e-contracts services and does not cause marketplace confusion.
eI
in the aspect of E-Commerce in India are: - However, on the Internet only one party can use a
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domain name because a domain name is actually an

1. Issue of Jurisdiction whereby the cyberspace address and only one registrant can occupy a
being an independent forum, not governed by the
laws of any single particular nation and involving
transnational boundaries attracts concerns such as
*
209
rich in its culture, tradition and its resources. Keeping in JUDICIARY AND HUMAN RIGHTS IN
mind, versatility of Indian context, Constitution of India INDIA
has been focused to fulfil the need of people. In social Law will be meaningless if there is no strong and willful
welfare state, three organs such as legislature, executive, machinery to implement it in true spirit. The life of law
judiciary are performing its duties in the light of depends upon will and dedication of machinery. Among
augmentation of right of people. In India, keeping in
ce
three organs of Indian legal system, Judiciary has always
mind the pre-independence ear, it was essential to fulfilled the faith of individuals towards protection of
en
recognize Fundamental rights and make them interest of citizens irrespective hurdles existed in society.
ud
enforceable by law. Part III, Part IV, Part IV-A of the Judiciary has consistently been implementing law for
Constitution are most fundamental in relation with augmentation of human rights in true spirit as a guardian
pr
rights of people in India. Part III that has been laid down and custodian of the Fundamental rights enshrined
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to guarantee Fundamental Rights of citizens and some within the Constitution of India.
of them are available for non-citizens as well. It
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recognizes rights of every citizen irrespective of caste, Right to life and liberty, equality, protection against
discrimination, freedom of speech and expression are
&
race, creed, religion, gender and other factors. Part IV
provided for laid down guidelines for the state in the truly interpreted and recognized by Judiciary, within
form of Directive Principles of State Policy and Part IV-

A which is another important aspect which was inserted
L aw
doctrine of rule of law for better protection of individual
citizens such vulnerable and marginalized sections of the
different communities. Under the garb of rule of law,
of
through Amendment i.e. fundamental duties.
independent judiciary has been most powerful, essential
al
Though there are number of provisions are inserted in and most sustained machinery in augmentation of
rn
the Constitution for the augmentation of rights of human rights. The contribution of judiciary has been
individuals, but still there are number of incidences of exceptionally significant in the domain of human rights
ou
violations of human rights at every sphere. Especially in from beginning, especially Hon’ble Chief Justice
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early 1990’s, with international pressure in relation with Gajendragadkar, Justice Krishna Iyer, Justice P.N.
na
political issues and several violence such as in the region Bhagwati and many more who contributed with respect
of Punjab, North-east, there was great need to have an to development of Human Rights Jurisprudence in
io
appropriate machinery for the protection of human India. They have elaborated true meaning to first,
nt
rights more seriously. Therefore, Protection of Human second, third and fourth generation of human rights in
er
Rights Act,1993 was enacted keeping in mind the need the Social Welfare State. Especially, it was Justice
nt
of an hour. It laid to establishment of National Human Krishna Iyer who gave meaning the content to the first
Rights Commission at Central Level and State Human
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generation rights such as civil and political rights which

Rights Commission at State Level. Human Rights were integral components of Universal Declaration of
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Courts are not still established but the task has been Human Rights and the second generation rights
assigned to existing sessions court at state level to look comprising social, economic and cultural rights which
after the matters of human rights under the Protection found reflection in the Preamble to the Constitution,
of Human Rights Act,1993.
*
113
to be applied to govern all e-commerce transaction one where the Cause of Action arises and it is in its local
relationships 9 and hence the consumer has to bear limits that the Jurisdiction exists. The IT Act provides
transaction costs in the form of network provider for the place of conduct of business as per Sec 13 which
charges , delivery fee payable and the costs and the legal suggests that the place of principal Business of the
fees involved in the enforceability of the E-Contracts in offeror is one where the suit is to be filed. It thereby
cases where the jurisdiction of the suit involving E- settles the problem of jurisdiction between the parties.
Commerce is outside India . However, in situations where the Principal Business of
ce
the Offeror is Abroad and is outside India, the
ANALYSIS OF EFFICACY OF THE IT consumers have to rely on the UNCITRAL convention
en
ACT, 2000 IN THE FIELD OF E- which ipso facto is a soft law and hence is based on the
CONTRACTS territorial laws of the individual signatory countries and
ud
can help in this aspect only if the Offeror belongs to a
The Information Technology Act which was passed on
country which is a part of this Convention. It has played
pr
the 9th of June, 2000 has carved a niche in the field of
an important role in conferring on the Central
clarifying and bridging the gaps with respect to E-
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Government, the power to appoint an Adjudicating
Contracts in the ambit of E-Commerce. This act was
Authority to adjudge whether a person has committed
mainly introduced by the Parliament for the purpose of-
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any offence that is in contravention within the meaning
of the Act. Besides this the Adjudicating officer is
 Providing recognition to E-Commerce,
&
conferred with powers vested in a civil court thereby
 To enable filing of various documents by
aiding the process of dealing with offences under this
individuals to the Government electronically.
aw
Act. The IT Act, 2000 has helped the Corporate Sector
 And to amend the various laws like the Indian whereby companies can carry out E-Commerce based
Evidence Act , Indian Penal Code and the Reserve
L on the legal infrastructure of the Act which has been
Bank Of India Act to deal with the new and current
provided in the Act and this would indeed help in giving
of
trends involving the usage and the dependency on valid recognition to the E-Contracts. It has addressed
the internet . the issue of security which play a significant role in
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The IT Act, 2000 has no doubt played an important role giving validity and in protecting the interests of the
rn
in solving the issues associated to the E-contracts which consumers in an electronic transaction. By means of
had for a long time been a problem to ponder upon by providing for digital signatures and giving a legal
ou
various legal scholars and luminaries around the recognition to it, the Act has played an instrumental role
Country. Prior to the IT Act, 2000 the issue of cause of in ensuring secure online transactions.
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action and jurisdiction with respect to E-Contracts had

Just like there are two sides of a coin, in the same way
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tormented the Courts and the Law makers as to which

the IT Act has another side to the positive effects
should be the place of Business and how could the
rendered on Commercial transactions, which cannot be
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jurisdiction be evaluated. The IT Act has in this regard

overlooked at any cost. The IT has failed to deal with
played an effective role in dealing with this hassle
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the problem of risk allocation in an online commercial

whereby it has ascribed freedom to the parties in terms
transaction. Any commercial transaction involves a
er
of the place and time for the conclusion of the contracts,

certain element of risk which cannot be excluded at all.
the only exception being that it must be based on the
nt
Commercial laws always make special provisions

“grund norm” of the procedural law – the CPC. As per
applicable only to vulnerable groups of buyers, like
eI
the Code of Civil Procedure, the place where the Cause

consumers and farmers, as far as risk of loss is
of Action arises is the one where the Jurisdiction
concerned. Such provisions do not equate traders with
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subsists. Applying the provision in Section 20 of the

consumers in allotting loss, and hence they are equitable
Code of Civil Procedure, 1908 the place where the
provisions. Unequal’s can never be treated equally. It
defendant conducts his business or his activities is the
9 Ibid
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211
would perpetuate inequality. It was, therefore, expected Wide Web, the main commodity in limited supply is the
that consumer interests would be taken into attention of busy people using it. As a result, it is
consideration, when the IT Act, 2000 was enacted. But possible that unconscionable web traders may trap
the IT Act does not provide for fair allocation of risk of unwary consumers causing much more problem than
losses between traders and consumers in electronic any kind of ease to the consumers in an online
transactions. For instance, the IT Act recognizes transaction. 11
secured transactions using cryptography for verification
ce
of digital signatures and cryptographic authentication CONCLUSION
procedures. In effect, it expects relatively
en
E-Contracts have turned out to play an intrinsic role in
unsophisticated parties to use a complex technology
the field of E-Commerce whereby consumers can buy
without adequate legal safeguards for them. Can
ud
goods right from their comfort zone by virtue of just a
individual end users utilize the same security practices as
mere click. However, these E-Contracts in the aspect of
used in the sophisticated corporate environments (such
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E-Commerce is not as easy as it seems to be. The
as banks)? Even an inadvertent click may result in loss
reasons and the advantages of these contracts have in
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to them.10
turn backfired the consumers causing a lot of problems,
Besides this, under a signed agreement, it is always whose solutions are yet to sorted and found out. Issues
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possible for one of the party to relinquish and waive off ranging from technical to legal be it the one relating to
his liability by denying the validity of the digital signature the protection of the privacy of the consumers and
&
of his. The legal doctrines addressing this problem vary ascribing the place of conduct of business and the cause
of jurisdiction, liability of network – 3rd party providers
aw
depending on the specific context within which the
agreement is signed and have no uniformity in the same are yet to be solved and the Information Technology
in providing a particular solution to it. The IT Act has Act, 2002 has not been able to come up with full proof
L
no doubt addressed the problem of malfeasance by solutions to these problems. The lacuna of the Act in
of
forgers or other impostors, but the problem of parties this regard has turned out to be a cause for problem and
wrongfully repudiating their own undertakings still concern for the consumers. In light of the recent
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lingers around without any particular solution or technological advancements and changes taking place in
the Cyberspace it is the need of the hour to make
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recourse to the problem Though the Act has by means

of Sections 11-13 of Chapter IV laid down the law for significant developments in the field of E-Commerce
ou
attributing electronic records to their originators, and its Allied issues for protecting and preserving the
acknowledging their receipt, and for establishing the rights of the consumers, who are no less than the King
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time and place of their dispatch and receipt thereby of the market.
providing for rules for offer, revocation of offer, and
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acceptance through electronic mode, these rules have in

no way made an attempt to look after the interests of
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consumers who are not as well versed in computer

nt
operations as traders.
er
In addition to this, the act must make some

provision for the inherent conflict between a web
nt
trader's need to attract and retain the attention of

eI
potential consumers and her/ his duty to inform them

of all the terms and conditions of sale, such as
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warranties, disclaimers and exceptions. On the World
10Suneeti Rao, Information Technology Act: Consumers' Perspective 11Suneeti Rao, Information Technology Act: Consumers' Perspective
36 Economic and Political Weekly 3501 (2001). 36 Economic and Political Weekly 3502 (2001).
*
212
AN ANALYSIS ON THE PREVENTION OF

CORRUPTION (AMENDMENT) ACT, 2018
OORJA S. CHARI
ce
INTRODUCTION caught on the proposed amendments. The bill
en
incorporates the recommendations given by the 20th
Bankers have always been grappled by the fear of Law Commission headed by Justice (Retd.) A.P. Shah in
ud
investigative agencies foisting cases when decisions its 254th Report.
taken in good faith go wrong. However, the recent
pr
amendments made to the Prevention of Corruption Act, The Bill after having been considered by the
1988 (“PCA”) act as a shield against these baseless Department related Parliamentary Standing Committee
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arrests by the police. The PC Act was enacted to prevent on Personnel, Public Grievances, Law and Justice, in its
corruption in Government departments and to 69th Report and the Law Commission of India in its
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prosecute and punish public servants involved in 254th Report, was also examined by the Select
corrupt practices. On July 6, 2018, an amendment was Committee of Rajya Sabha, which submitted its report
&
enacted (“Amendment Act”), owing to the limitations on the Bill to the Rajya Sabha on 12th August, 2016.
aw
of the PCA. The main aim of the PCA is to bring the
Recommendations made by the Select Committee in its
anti-corruption law in sync with the United Nations
report on the Bill were considered by the Government
Convention against corruption 2005 that India ratified
L
and official amendments were moved on the Bill as
in 2011. Under the many changes brought about by the
of
reported by the Select Committee of the Rajya Sabha.
amendment, one essential provision makes it mandatory
for the police to take the consent of the relevant The Bill was taken up for discussion and passed by the
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authority before initiating prosecution against Rajya Sabha on 19th July, 2018, during its current 246th
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government officials, including bankers. Due to the Session. Further, it was taken up for discussion and
Central Bureau of Investigation charging bankers passed by the Lok Sabha on 24th July, 2018, during its
ou
allegedly for corruption, state run banks have been current 15th Session of the 16th Lok Sabha.
hesitating to take any decision, causing its functioning to
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come to an utter standstill. To state an example, a KEY DIFFERENCES BETWEEN THE

number of bankers from IDBI Bank were charged for Prevention of Corruption Act, 1988 AND the
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wrong doing in loans given to Kingfisher Airlines. Just Amendment Act

because a borrower defaults, it does not mean that the
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bankers who have given these loans are criminals. 1. Amendment to the meaning of the term Criminal
nt
Misconduct
BACKGROUND OF AMENDMENT
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The amendment has redefined the term “criminal

The amendment to the PCA arose from the obligation misconduct” 1 . In the PCA, criminal misconduct by a
nt
of India to review the existing provisions the Act so as public servant included:
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to bring it in line with the United Nations Convention

(i) using illegal means to obtain any valuable thing
Against Corruption (UNCAC). This led to the
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or monetary reward for himself or any other

introduction of The Prevention of Corruption
person;
(Amendment) Bill, 2013, for amending the PCA which
was introduced in the Rajya Sabha on 19th August,
2013. The views of the Law Commission of India was
1 Section 13
*
213
(ii) abusing his position as public servant to obtain a reasons and bankers can’t be blamed if a company
valuable thing or monetary reward for himself or becomes a willful defaulter. Banks are unique
any other person: institutions. They are, by nature, highly leveraged
through public deposits and are part of a chain in
(iii) obtaining a valuable thing or monetary reward creating money supply. The surge in bad loans over the
without public interest, for any person. The new last couple of years first raised questions about the
subsections define criminal misconduct of a quality of credit appraisal at banks.
ce
public servant as: -
Certain Instances of Victimization of Bankers
en
• if he dishonestly or fraudulently misappropriates or
otherwise or converts for his own use any property A. Bank of Maharashtra Scandal-
ud
entrusted to him or under his control as a public The Economic Offences Wing of the Pune police
servant allows any other person to do so; or
arrested Bank of Maharashtra MD and CEO, Ravindra
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Marathe and other for allegedly disbursing crores of
• if he intentionally enriches himself illicitly during the
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rupees in loans to DSK Developers Ltd, without
period of his office and, he or any person on his following the proper procedure. The agency also
behalf, is in possession or has, at any time during the
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arrested, executive director, Rajendra Gupta and two
period of his office, been in possession for which the others. The bank officials allegedly colluded with DSK,
public servant cannot satisfactorily account, of
&
the group's flagship company, to sanction and disburse
pecuniary resources or property disproportionate to the amount under the barn of loan which was siphoned
aw
his known sources of income.” off. The fraud amounting to Rs 2,043 crore relates to
Earlier, criminal misconduct used to cover offences
L siphoning off money raised by the DSK group through
including accepting bribe habitually, getting anything investors as well as loans from banks and financial
institutions, non-convertible debentures and money
of
free or at a concession, obtaining pecuniary advantage
for oneself or for another without public interest. collected from home buyers in housing projects. The
bank in an official statement said that its total
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Under the Amendment Act, the term criminal outstanding exposure to DSKDL was Rs 94.52 crore
rn
misconduct will now include only the following two and that it has also declared DSKDL and its promoters
offences: as wilful defaulters.
ou
• misappropriating of property entrusted to the banker B. IDBI Bank Probe-

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The Central Bureau of Investigation on Monday

na
• amassing assets disproportionate to known sources of arrested former IDBI Bank chairman Yogesh Agarwal
income and four of his erstwhile colleagues, besides the then
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This amendment essentially makes ’mens rea’ (presence Kingfisher Airlines CFO A. Raghunathan
nt
of intention and enrichment) and quid pro quo as and three other former functionaries of the airline, in
connection with the 900-crore loan default case. The
er
essential parameters to convict any person for criminal

misconduct under the Act. This amendment is highly CBI also arrested the former IDBI Bank Deputy MD
nt
beneficial for bankers, coming at an opportune moment, B.K. Batra. The arrested bank officials include former
when the bankers are facing intense scrutiny for their IDBI Bank deputy managing director B.K. Batra,
eI
lending decisions which have resulted in NPAs. Bankers former members of the bank’s credit committee, O.V.
Bundellu and S.K.V. Srinivasan and the then bank
Th
have argued for a long time that they should not be

prosecuted for lending decisions they made honestly. general manager R.S. Sridhar.The credit panel had
sanctioned the loan. It was on the complaint of IDBI
Sanctioning of loans involves a number of steps. A loan bank that the probe on loan default against Kingfisher
can become non-performing asset due to several was launched by the CBI. IDBI complained to the CBI
about the wilful default on part of the airline. CBI
*
214
investigations have found that IDBI officials allegedly The anti-corruption law now, punishes, both the bribe
agrees to grant over Rs. 900 crore to the airline at low giver as well as the bribe taker. In a country like India
interest rates in March 2009 at a time when the where corruption is rampant, with one of its primary
company’s financials were supposedly in dire straits and causes being bribery, this amendment is a welcome
the airline had declared losses running up to Rs. 1,600 change. Under the legislative framework of the PC Act,
crores. According to the CBI, the loan screening there was no provision to criminalize directly the supply
committee relied heavily on the brand value of side of corruption, or the offering of bribe for getting
ce
‘Kingfisher’ deriving its importance from the beer an undue advantage. Under the new dispensation, this is
brand. The executives involved had then claimed that criminalized. The demand side of corruption, which is
en
the brand had been pledged as a collateral qualifying the solicitation and acceptance of a bribe, is also
Kingfisher not only for the loan but also a lower interest criminalized, as in the earlier Act. Thus, by criminalizing
ud
rate. both sides of corruption, the cycle is now complete, as
the supply and demand sides of corruption are two sides
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C. Canara Bank Case- of the same coin, with corrupt acts occurring due to
ris
collusion between the two, the suppliers and those who
The CBI filed a charge sheet against two former
demand the bribe. Previously the PC Act did not contain
chairman-cum-managing directors of Canara Bank -
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a separate provision for a person who gives or promises
A.C. Mahajan and S.R. Raman- in connection with an
give an undue advantage but the Amendment Act makes
alleged loan default of Rs. 146 crores by Jatin Mehta
&
giving an undue advantage by a person to a public
owned Winsome Diamonds and this move wreaked
servant, a specific offence is punishable by 7 (seven)
havoc in the banking community. The agency has
aw
years imprisonment of fine, or both. However, if a
alleged that the company purchased gold from three
person is forced or coerced to give an undue advantage
bullion banks abroad, The Bank of Nova Scotia,
L but reports the same to the concerned authority within
Standard Bank and Standard Chartered Bank-on the
7 (seven) days doing so, he shall not be liable for the
of
basis of guarantees from the Indian Bank and later, this
same. Further, as per the PC Act, during a corruption
gold was processed and sent to 13 buyers in the UAE.
trial, if a person made a statement that he gave an undue
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The company also failed to make payment for the gold

advantage to a public servant, it would not be used to
imported on the strength of guarantees.
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prosecute him for the offence of abetment. The

On the charge sheet against two Canara Bank CMD’s Amendment Act omits this provision. Effectively it may
ou
the former Chairman a bank said, “With less than 8% of become a potential risk for bribe givers to testify against
the consortium exposure, Canara Bank officials are the the corrupt and they may be discouraged from
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easy scapegoat. For the CBI to have jurisdiction in this appearing as witnesses in a trial against public servants.
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case, they needed to charge sheet some PSU Bank The Amendment Act has defined ‘commercial
officials. They were the easiest target does not matter organization’ to mean not just a company or partnership
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PSU bankers were only minor members in the incorporated in India and carrying on business in India
consortium. CRISIL rating was AA, internal ratings or outside India, but also a body or partnership
nt
were good. The conduct of the account was without incorporated or formed outside India but carrying on
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blemishes, troubles in the account started much after business in India. Section 9 of the PC Act has been
they retired. Still they were charge sheeted only for the substituted by the Amendment Act to provide for a
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sin of having been a public sector banker.” specific provision for offences committed by
commercial organizations and persons associated with
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2. Other Amendments it. It also provides that if any such organization commits
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any of the offences stated under the PC Act in order to

Bribery2
obtain or retain the business or obtain or retain an
advantage in the conduct of its business then such
2 Sections 7, 7A, 8 and 9 of the Amendment Act
*
215
commercial organizations shall be punishable with a an executive order. Thereafter, the Delhi Special Police
fine. Towards this end, the Amendment Act mandates Establishment Act, 1946 was amended to provide for
the Central Government to formulate and prescribe prior approval for investigation of offences alleged to be
guidelines to prevent persons associated with committed by officers of the level of Joint Secretary and
commercial organizations from bribing any public above. This again was struck down in Subramaniam
servant. Swamy vs. Director, Central Bureau of
Investigation on the ground that it was
5
ce
Prior Approval before Investigation discriminatory. Section 17A seeks to address both these
issues by-
en
The introduction of Section 17A3 grants another level
of protection as it requires prior approval of an (a) giving legislative backing to the requirement to seek
ud
appropriate authority to conduct any enquiry or inquiry prior sanction; and
or investigation into any offence alleged to have been
pr
committed by a current public servant or a former (b) making it applicable to all public servants.
public servant. This provisions will ensure that
ris
investigating agencies will initiate investigation (and Prior Sanction Required for Prosecution of Former Public
possibly arrest as part thereof) only if they have strong Servants
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proof indicating either fraud or quid pro quo by a banker.
Before the Amendment Act, prior sanction for
Honest bank officials who had taken decisions in good
prosecution under Section 19, was only required for
&
faith and without quid pro quo will be protected from
public servants who held public office at the time when
loss of liberty by arrest. Section 17A provides that no
aw
the offence was brought before the Court. Therefore, a
approval is required before arresting a person caught
public servant who was no longer in office, could be
taking bribe on the spot. It further mandates the
prosecuted for offences committed at the time when he
L
concerned authority to convey its decision within 3
was a public servant, without any sanction. This position
of
months, which period may be extended by 1-month
has been altered by the Amendment Act. Now, a
subject to such extension being supported by reasons
sanction will also be required to prosecute public
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recorded in writing. In the past, an executive order

servants who have ceased to hold any public office.
issued by the Central Government to Central Bureau of
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Investigation (CBI) providing for prior approval before Increase in Punishment

initiating enquiry against a decision-making level officer
ou
(such as Joint Secretary or equivalent or above in Central The punishment under the Amended Act has been
Government) was struck down in Vineet Narain vs. increased from a minimum imprisonment term of 6 (six)
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Union of India 4 , on the ground, inter alia, that such months to 3 (three) years and from a maximum of 5
na
requirement has to be provided in legislation and not in (five) years to 7 (seven) years with or without fine.
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3 17A. (1) No police officer shall conduct any enquiry or (c) in the case of any other person, of the authority competent
nt
inquiry or investigation into any offence alleged to have been to remove him from his office, at the time when the offence
committed by a public servant under this Act, where the was alleged to have been committed:
er
alleged offence is relatable to any recommendation made or

decision taken by such public servant in discharge of his Provided that no such approval shall be necessary for cases
nt
official functions or duties, without the previous approval— involving arrest of a person on the spot on the charge of
(a) in the case of a person who is or was employed, at the time accepting or attempting to accept any undue advantage for
eI
when the offence was alleged to have been committed, in himself or for any other person:
connection with the affairs of the Union, of that Government;
Provided further that the concerned authority shall convey its
Th
(b) in the case of a person who is or was employed, at the time decision under this section within a period of three months,
when the offence was alleged to have been committed, in which may, for reasons to be recorded in writing by such
connection with the affairs of a State, of that Government; authority, be extended by a further period of one month.’’.
4 (1998) 1 SCC 226

5 (2014) 8 SCC 682
*
216
Punishment for abetment of offence has also been have, in a way, paved a path to corruption. While the
increased by the same quantum. primary motive of the Amendment was to prevent
victimization of honest officers, the Amendment Act
Attachment of Property seemingly strengthens the shield available to officials
accused of corruption.
The Amendment Act has provided for applications of
the Prevention of Money Laundering Act 2002 and
Criminal Law Amendment Ordinance 1944 for
ce
attachment and administration of property procured by
en
means of an offence under the PC Act. 6
Timeline7
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The previous Act did not provide a time frame within
pr
which the trial was to be completed. However, the
Amendment Act now prescribes that the Special Judge
ris
shall strive to complete the trial within 2 (two) years.
This period can be extended by 6 (six) months at a time
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and up to a maximum of 4 (four) years in aggregate
subject to proper reasons for the same being recorded.
&
However, the manner in which this provision is worded
aw
does not make it mandatory.
CONCLUSION
L
of
The Amendment Act can be considered as a positive
development in respect of anti-graft regime. This is
al
because it includes various provisions relating to

commercial organizations and persons who give an
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undue advantage. It has also modified and enhanced the

definitions and penalties for offences related to
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accepting an undue advantage, being a habitual offender

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and abetting an offence. Nevertheless, every coin has

two sides. Despite bringing about highly required
na
changes, it must be noted that the Amendment Act has

inadvertently led to a creation of additional hurdles
io
pertaining to investigation and prosecution. The

nt
Amendment requiring the need to obtain prior sanction

from appropriate Government authority to initiate a
er
probe on serving as well as former public servants, could

nt
6 Section 18A. (1) Save as otherwise provided under the shall be made to ensure that the said trial is concluded within
eI
Prevention of Money Laundering Act, 2002, the provisions of a period of two years: Provided that where the trial is not
the Criminal Law Amendment Ordinance, 1944 shall, as far concluded within the said period, the special Judge shall
Th
as may be, apply to the attachment, administration of attached record the reasons for not having done so: Provided further
property and execution of order of attachment or confiscation that the said period may be extended by such further period,
of money or property procured by means of an offence under for reasons to be recorded in writing but not exceeding six
this Act months at a time; so, however, that the said period together
7 Section 4- Notwithstanding anything contained in the Code with such extended period shall not exceed ordinarily four
of Criminal Procedure, 1973, the trial of an offence shall be years in aggregate
held, as far as practicable, on day-to-day basis and an endeavor
*
217
Court of India in Booz Allen and Hamilton Inc v. SBI Home obstacles and issues that has been causing a bit
Finance Limited and Ors.3 inconvenience in the total usage of Arbitration.
The Court while ruling for the defendant (Telemax), saw  Applicability of the Amended Act
that the provisions of the Copyright Act and the
(Indian) Trade Marks Act, 1999 (Trademarks Act) don't In 2015, India took an enormous jump and chose
expel the purview of an arbitral panel, they just try to to amend Arbitration and Conciliation Act, 1996.
After the required alterations and changes, the Law
ce
guarantee that such activities are not to be brought
before the Registrar or the board. Further, where there Commission of India, in 2015, changed the
en
are matters of commercial disputes and parties have Arbitration law mandate issued in October 2015.
intentionally chosen to allude these question emerging Toward the end of 2015, the Indian Parliament
ud
from that agreement to a private discussion, no inquiry passed a bill which rolled out the amendments
emerges of those disputes as being non-arbitrable. Such permanently, and on 31 December 2015 the
pr
activities are dependably activities in personam, one party Arbitration and Conciliation (Amendment) Act,
looking for a specific relief against a specific defined 2015 (the "Amendment Act") moved toward
ris
party, not against the world at large. Eros' activity is in becoming law. One of the real hindrances that
personam as it is looking for a specific relief against a Arbitration as a field is witnessing, is the reality
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specific defined party. whether the Amended Act, Arbitration and
Conciliation (Amendment) Act, 2015 (the
&
This choice makes it richly evident that although under "Amendment Act"). There have been High Court
trademark and copyright law, enlistment allows the
aw
judgments which are contradicting in nature. In one
registrant a rights against the world everywhere and it is case, it was held that the amendment act won't be
conceivable that a resistance to such an application pertinent to the stage post arbitral proceeding. This
L
(before the Registrar) would be an activity in rem, be was held by the Madras High Court, in connection
of
that as it may, an encroachment or passing off activity to Section 26[3] of the Amendment Act. Be that as
binds only the parties to it. it may, Delhi High Court held that court procedures
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which are started post change would not go under

CHALLENGES WITH RESPECT TO
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the Amended Act except if they were simply

ARBITRATION IN INTELLECTUAL procedural in nature. This case elucidates that the
ou
PROPERTY RIGHTS DISPUTES appropriateness of the Amended Act is as yet not

clear and this prompts distinctive translations by the
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Arbitration, as a method for dispute resolution, has risen court, which could turn out to be an issue.
to be an exceptionally effective endeavor. This pattern
na
has been seen in India, as well as everywhere throughout  Arbitrability of cases of oppression or
the world. The greater part of the cases that come up, if mismanagement
io
conceivable are sent for Arbitration. Be that as it may,

nt
for our nation, this concept is a new idea. In the recent Another issue that is confronted is that in instances
past, the laws of arbitration have advanced and of abuse or blunder, not every last noteworthy act
er
accumulated a ton of consideration, particularly in India. which is a result of such cases, is limited to the case
as it were. A few questions may prompt be making
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It is obvious from the previously mentioned data that

Arbitration, almost certainly plays a vital and compelling impact to a third person, who isn't even a party of
eI
part in the critical thinking and decision making. the Arbitration agreement. In this way, such
Additionally, it isn't confined to only a solitary field of question is rendered non-arbitrable.
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law, yet to many. Be that as it may, there are a few
3 Booz Allen & Hamilton Inc v SBI Home Finance Limited & Ors
(2011) 5 SCC 532
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119
 Arbitration under foreign law and agreements. Due to these agreements and
arrangements the request of IP rights holders to manage
Another issue is whether Indian parties getting into IPR dispute at a global level is likewise expanding. At
an arbitration agreement, can pick a foreign law to the point when parties look for mechanisms for dispute
oversee such arbitration. There have been resolution, they consider their business interests as
numerous cases talking about this perspective, be essential concern and they wish for the dispute
that as it may, there is still no lucidity. Bombay High settlement to be close to home, exceedingly adaptable
ce
Court, in the case of Addhar Mercantile Private Limited and productive, so their cross – border disputes can be
V. Shree Jagdamba Agrico Exports Pvt. Ltd4, expressed settled without discoloring their business relationship in
en
that Indian parties, picking foreign law to oversee the business. Arbitration, in spite of the difficulties it
their arbitration agreements, could be considered to causes, is as yet favored over litigation with regards to
ud
restrict public policy of the nation. In any case, on cross-border IPR dispute. It avoids parallel prosecutions
account of Sason Power Ltd. V North America Coal and has its natural points of interest in managing
pr
Corporation India Pvt. Ltd5., the Madhya Pradesh High commercial disputes in regard of adaptability, privacy,
Court held that two Indian parties may direct
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conclusiveness.
arbitration under foreign law.
The Arbitration of International Intellectual Property
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 Not confident about taking dispute to Disputes will fill in as a helpful reference and guide for
Arbitration navigating through the mind boggling maze of
&
Intellectual Property and Arbitration. As affirmed by the
aw
One of the significant issues with regards to development of IP arbitration proceedings and by
Arbitration in IPR dispute is that it is extremely hard ongoing patterns, the utilization of arbitration for
to get injunctive relief and punitive damages comprehending international arbitration dispute is
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expediently. An IP holder may need his case to be expanding. This pattern can be affirmed by the decision
of
settled quickly and such help will probably be made by arrangement producers to approve and
acquired from litigation instead in form of an advance the utilization of arbitration for unravelling
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arbitration proceeding. Likewise, IPR dispute are Intellectual Property disputes, which constitutes an
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usually among parties who don't have any unmistakable sign that Arbitration is a sufficient
acquaintance with each other from previously and technique for solving intellectual property dispute that
ou
have no prior relationship and along these lines they does not debilitate in any way, the powers of State
are not inclined to consent to present their question authority over intellectual property as such.
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to ADR.
In perspective of these improvements, it is vital that
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In different conditions, even with regards to an existing every one of the partners, and especially the parties and
relationship or forthcoming transaction, there still might their counsel, shall become mindful of the adequacy of
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be reasons why some parties might not have any desire Arbitration for unravelling International Intellectual
nt
to consent to the goals of any IP dispute by discretion Property disputes. This requires moving past the
of some other type of ADR. threshold issue of arbitrability of Intellectual Property
er
disputes with a specific end goal to address the issues

which can essentially influence the success of
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CONCLUSION
Arbitration as far as cost, speed and effectiveness,
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With the appearance of globalization, Intellectual especially the extent of the arbitration clause and the
Property Rights have additionally turned out to be more definition of the governing law.
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internationalized and marketed. This is obvious from

the expanding number of cross-border arrangements
4 Arbitration Petition No. 910/2013 dated June 12, 2015. 5 First Appeal No. 310/2015 dated September 11, 2015
*
120

REVANTH. A & VIKRAM. S
UNIFORM CIVIL CODE VIS-À-VIS Religion should not a basis for classification
ARTICLE 14 OF THE INDIAN
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Ambedkar, the Chairman of the Drafting Committee of
CONSTITUTION
the Constitution, during the Constituent Assembly
en
The right to equality has been declared by the Supreme debated on a Uniform Civil Code expressed the fact that
Court as the basic feature of the Constitution. 1 the Shariat law in fact did not apply to the North West
ud
Preamble to the constitution also emphasizes the Frontier Provinces where Hindu law of succession and
principle of equality as the basic feature of the other matters was followed so much so that in 1939 the
pr
constitution. This was also expressed by the Hon’ble Central legislature had to abrogate the application of
ris
Supreme court in Sri Srinivasa theatre2 that there was an Hindu law to the Muslims of the North West Frontier
obligation upon the State to bring about, through the Provinces and apply Shariat law to them. In North
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machinery of law, a more equal society….. For, equality Malabar, Marumakkathayam, matriarchal law of
before law can be predicated meaningfully only in an succession applied equally to all Hindus and Muslims.5
&
equal society.
It is of utmost importance to understand that the
aw
The strongest indicator of this is the case of Masilamani principle of equality does not mean that every law must
Mudaliar3 where a three judge Bench observed: “The basic have universal application for all the persons who are
structure permeates equality of status and opportunity. The not by nature, attainment or circumstances, in the same
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personal laws conferring inferior status on women is anathema to position, as the varying needs of different classes of
of
equality. Personal laws are derived not from the Constitution but persons often require separate treatment.6
from the religious scriptures.”
al
Classification according to Art. 14 would not apply to

A Uniform civil code envisages social reform by persons belonging to various religions. The entire
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stressing upon the idea of social equality. The equality problem under equal protection clause is one of
classification or of drawing lines.7 The Hon’ble Supreme
ou
clause under Art. 14 does not speak of mere formal

equality before law but embodies the concept of real and Court observed in Anwar Ali 8 and Sadasiv 9 :
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substantive equality, strikes at these inequalities.4 Time “Classification means segregation in classes which have a
has become ripe for India to bring in a comprehensive systematic relation, usually found in common properties and
na
UCC to realize the principles of social equality. characteristics. It postulates a rational basis and does not mean
herding together of certain persons and classes arbitrarily.” There
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is no closed category of classification; the extent, range

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and kind of classification depend on the subject matter

of the legislation, the conditions of the country, and the
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1Indra Sawhney v. Union of India, AIR 2000 SC 498; Indira Nehru 5 Constituent Assembly Debates, Volume III, Lok Sabha
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Gandhi v. Raj Narain, AIR 1975 SC 2299. Secretariat, Government of India, 23 Nov. 1948, p. 551.
Sri Srinivasa theatre v. Govt. of T.N., AIR 1992 SC 999. State of M.P. v. Bhopal Sugar Industries, AIR 1964 SC 1179.
Th
2 6
7State of W.B. v. Anwar Ali, AIR 1952 SC 75; Sadasiv v. State of
3 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil, Orissa, 1956 SCR 794(806).
(1996) 8 SCC 525.
8 State of W.B. v. Anwar Ali, AIR 1952 SC 75.
4 Secretary, H.S.E.B v. Suresh, AIR 1999 SC 1160.
9 Sadasiv v. State of Orissa, 1956 SCR 794(806).
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121
economic and social and political factors at work at a also archaic laws which is based only upon religion will
particular time. be outright done away with.
Classification based on religion would lead to Discriminatory nature of personal laws

anachronism when the present social circumstances of
the country are delved into. In the constituent assembly, ‘Discrimination’, shortly speaking, means difference in
K.M. Munshi expressed his opinion on a uniform civil treatment. The Dictionary meaning of ‘discriminate
against’ is to “make an adverse distinction with regard
ce
code during the constituent assembly debates on Art. 35
of the draft constitution (now Art. 44) that the people to”, “distinguish unfavorably from others”.14
en
should outgrow the notion given by the British that
In family matters, India has a system of personal laws,
personal law was part of religion.10
i.e. Hindu law for Hindus, Muslim law for the Muslims
ud
It was observed in John Vallamattam 11 that § 118 of and so on.15 Some of the laws have been amended by
statutes and some have not.
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Indian Succession Act which put restrictions on Indian
Christians in their disposing power, though formed a
In particular, the Indian Divorce Act is blatantly
ris
class by themselves was found to be invalid since the
discriminatory and unjust to women. Under § 10 of the
classification is not based on intelligible differentia or
Act, the husband can obtain a divorce on the ground of
Ju
has any nexus with the object to be achieved. Further,
adultery simpliciter, but the wife, in order to obtain a
the classification between testators who belong to
divorce, has to prove one of the following grounds,
&
Christian Community and those belonging to other
namely, incestuous adultery, bigamy with adultery or
religions was held to be unreasonable.
aw
adultery coupled with cruelty or adultery with desertion
A classification which is not in tune with the L for two years.
constitution is per se unreasonable 12 and cannot be
A Special Bench of Kerala High Court in Ammini E.J.16
permitted such as the classification based on religion.
of
held that the § 10 is violative of Arts. 14., 15 & 21.
Therefore, even if a classification is rational and was not
Subsequently the Bombay High Court in Pragati
unconstitutional on the day on which it was enacted, it
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Varghese17 followed the lead given by the Kerala High

may by the passage of time, awareness and spread of
Court in recognising adultery, cruelty and desertion as
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education can render antiquated provision

grounds for divorce and held that § 10 is discriminatory
unconstitutional by obliterating the rationale.13 Though
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on the ground of sex and is, thus, violative of Art. 15(1).

the Uniform civil code was undesirable at the time of
making of the constitution, as time passed, the society Under § 6(a) of the Hindu Minority and Guardianship
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has come to a point where inequality based on sex within Act, 1956, the father of a Hindu minor is the only
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and among religions is being frowned upon. Gender guardian and the mother of the minor is relegated to an
justice has been given prime importance today, which in inferior position. She could become the guardian only
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fact should’ve been recognized before a long time. ‘after the father. The provision was challenged under
Through a UCC, not only will gender justice prevail but Arts. 14 & 15 on the ground of gender discrimination.18
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The Hon’ble Supreme Court opined that ‘gender

er
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10Salim Akhtar and Ahmad Naseem, Personal Laws and Uniform JAIN, OUTLINES OF INDIAN LEGAL HISTORY, Ch.
15
Civil code, p. 39 (1998). XXV.

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11 Id. 16 Ammini E.J. v. Union of India, AIR 1995 Ker 252.

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12 Aharn Prakash v. State of Haryana, AIR 1986 SC 859. 17Pragathi Varghese v. Cyril George Varghese. 1997 AIHC 3493
(Bom).
13 John Vallamattam v. Union of India, AIR 2003 SC 2902.
18 Gita Hariharan v. Reserve Bank of India, AIR 1999 SC 1149.
14 Kathi Raning v. State of Saurashtra, AIR 1952 SC 123
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122
equality’ is one of the basic principles of the constitution unequals, it is necessary to adopt positive measures to
and interpreted § 6 so as to mean that the mother could abolish inequality. The idea of a UCC as a method for
act as the natural guardian of the minor during the bringing about a positive reform in the society was
father’s lifetime.19 mooted in the Constituent Assembly in 194725.
In John Vallamattom 20 and Kapila Hingorani 21 the court The Hon’ble Supreme Court in Jorden Diengdeh vs. S.S.
held that: "In any view of the matter even if a provision was not Chopra26 and Sarala Mudgal27 opined on the desirability
ce
unconstitutional on the day on which it was enacted or the of a UCC. The Court asked the Govt. of India to take a
Constitution came into force, by reason of facts emerging out fresh look at Art. 44 of the Constitution which entrusts
en
thereafter, the same may be rendered unconstitutional. The world the State with a duty to “endeavour to secure for the
has witnessed a sea change. The right of equality of women vis-à- citizens a uniform civil code throughout the territory of
ud
vis their male counterparts is accepted worldwide. It will be India”. Subsequently His Lordship Justice Kuldip Singh
immoral to discriminate a woman on the ground of sex. It is retracted the direction into a recommendation.28 What
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forbidden both in our domestic law as also in international law." is required to ensure equality and justice to half of the
population of India, viz. women, is a gender-just UCC.
ris
As we had observed, there are numerous provisions of Women under the Hindu, Muslim and Christian laws
the personal laws which violate the rights of women and suffer from discrimination and inequalities in matters of
Ju
hinder the development of the society as a whole. The marriage, divorce, succession, inheritance, etc. 29 As a
UCC must be brought as an affirmative action as there step toward gender justice, inter alia, the UCC would
&
is a dire need to reform such redundant laws in a promote an egalitarian society.
civilized society.
Uniform Civil code is an affirmative action to

prevent discrimination
L aw
‘LIFE’ AND ‘LIBERTY’ UNDER ART. 21
OF THE CONSTITUTION AND A UCC
of
Art. 21 of the Constitution lays down that no person
Equality between the sexes is included in the in the
shall be deprived of his life and personal liberty except
equality ‘indignity and rights’ of all human beings
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according to the procedure established by law. Art. 21

declared by Art. 1 of the Universal Declaration.22
assures every person right to life and personal liberty. Its
rn
Also, Art. 16 of the same Declaration23 Stipulates the deprivation shall only be as per the relevant procedure
prescribed in the relevant law, but the procedure has to
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equal marital and family rights of man and woman (of

full age). It was observed by the Hon’ble Supreme Court be fair, just and reasonable. In P. Rathinam30, the Hon’ble
Supreme Court interpreted the term life as, "The right
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in Indra Sawhney 24 that to bring about equality among

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19 Id. 27 Sarala Mudgal v. Union of India, (1995) SCC 3 635.

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Supra note 13. Id.

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20 28
er
21 Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1. 29F. Agnes, “The Hidden Agenda beneath the Rhetoric of
Women’s Rights”, Towards Secular India, Bombay, 1996, p. 1;
nt
22 Universal Declaration of Human Rights, G.A. Res. 217A F. Agnes, “Hindu Men Monogamy and Uniform Civil Code”,
(III), U.N. Doc. A/810 at 71 (1948). XXX(50) Economic and political weekly, 1995, p. 32; B. Karat,
eI
“Uniformity v. Equality”, Frontline, 17 Nov. 1995; A. A.

23 Id. Engineer, Uniform Civil Code: An Indian Perspective, Centre for
the Study of society and secularism, Bombay, August 1995,
Th
24 Indra Sawhney v. Union of India, AIR 2000 SC 498. mimeo; “the Myths on Personal Laws: Facts Against Myths”,
Volume II, Vikas Adhyayan Kendra, September 1995, p. 6.
25 Constituent Assembly Debates, Volume VII, Lok Sabha
Secretariat, Government of India, 23rd Nov. 1948. 30 P. Rathinam v. Union of India, AIR 1994 SC 1844.
26 Jorden Diengdeh vs. S.S. Chopra, AIR 1985 SC 935
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123
Justice Verma Committee of 2012 favored gender-

neutral laws completely in its report and the Criminal
Law (amendment) Ordinance 2013 was published in
The Gazette of India which upheld the Committee’s
view. In the spirit of gender-neutral laws, sexual
harassment, voyeurism and stalking were added to the
Indian Penal Code and certain amendments and
ce
deletions were made to IPC, CrPC and Evidence Act.
But the ordinance on making all laws gender neutral
en
lasted for 58 days and was repealed and replaced by The
Criminal law (Amendment) Act 2013. Therefore, the
ud
current provisions stating stalking and sexual
harassment became gender-specific, where the man is
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the sole perpetrator and women are the sole victims.
ris
Section 377 of IPC states “voluntarily carnal
intercourse” with “any man, woman or animal” as an
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unnatural offence. Breaking this down, it simply means
that men who have undergone sexual abuse or any other
&
kind of sexual violence, can find recourse under Section
377 against any gender. Section 377 is one of the few
aw
gender neutral provision that India has, unlike rape.
Speaking strongly in favor of gender-neutral laws,

L
Constitutional lawyer and feminist intellectual Karuna
of
Nundy points out, “vaginal intercourse has been kept
legal and the anal intercourse has been criminalized.”
al
She, however, cited an example in case gender-neutral

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laws are enacted in the country and the perpetrator falls

within its ambit: “If a Thakur man raped a Dalit woman,
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he would be advised by his lawyer to file an FIR against

the Dalit woman.”
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na
io
nt
er
nt
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*
223
GENES RESPONSIBLE FOR CRIMINAL BEHAVIOUR? : A

LEGAL ANALYSIS
SHREYA ELIZA SUNNY
ce
INTRODUCTION persons, such that they are made aware of their
condition.
en
Think of a world wherein all of our actions, decisions The paper further deals with ethics that come into play
and the direction our lives take depend largely on our
ud
once the genetic predisposition is recognized. The
genes, and everything is our control but, not really. problem that arises with the recognition is the stigma
pr
that would revolve around the child and the family as
Genes and their effect on human behaviour have always
being ‘criminal’. The problem also extends to the
been an area of interest to both the scientific and the
ris
individual accepting himself as a criminal and inclining
legal community. Behavioural Genetics deals exactly
himself to antisocial activities. Therefore, being a self-
with this. Behaviour genetics is a field in which variation
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fulfilling prophecy.
among individuals is separated into genetic versus
environmental components. The most common Genetics 101
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research methodologies are family studies, twin studies,
aw
and adoption studies.1 A gene is the basic physical and functional unit of
heredity. Genes, which are comprised of DNA, go
When it comes to criminal behaviour, a lot of studies by about as directions to make particles called proteins. In
L
scientists have established a link between the genetic people, genes differ in a measure from a couple of
of
makeup of a person and their tendency to engage in hundred DNA bases to in excess of 2 million bases.
antisocial and criminal activities. There are no ‘criminal Each individual has two duplicates of every gene, one
al
genes’ but there are genetic factors that increase the acquired from each parent. Most genes are the same in
likelihood of a person to engage in criminal behaviour.
rn
all people, but a small number of genes (less than 1 per

Genetic conditions such as the XYY syndrome and the cent of the total) are slightly different between people.
ou
MOA condition influence behaviour which increase the The human genome is the complete set of genetic
tendency of people to commit crimes. This condition information for a human. It consists of DNA sequences
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has been poses a problem like that of a ‘double edged within 23 chromosomal pairs in cell nuclei, as well as
sword’, which means that it poses a problem both ways, DNA in the mitochondria. Genes are the working units
na
The both ways being, the criminals are given a lesser of DNA.
sentence based on their genetic condition but this
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condition predisposes them to commit future crimes, Scientists while identifying genes that might cause a
nt
therefore there being no deterrent whatsover. This particular behaviour, they do not look whether that gene
paper analyses the Court’s stance when genetic is present in the genome, they instead look for specific
er
predisposition is brought before it as a defence for a type of the relevant gene. Alleles are forms of the same
gene with small differences in their sequence of DNA
nt
crime in four stages. The four stages are the phases

revolve around the trial i.e. before trial, during trial, after bases. These small differences contribute to each
eI
it and post-conviction. The before stage and further two person’s unique physical and behavioural features
stages deal with identifying the genetic condition and
Th
It is important to note that there is no single gene for

using it as a mitigating factor during sentencing. Post-
intelligence, personality traits, behaviour, or even height.
conviction stage deals with the rehabilitation of such
Rather, such complex characteristics are polygenic, i.e.,
1G. Scott Acton, GREAT IDEAS IN PERSONALITY-- http://www.personalityresearch.org/bg.html (last visited

BEHAVIOR GENETICSREVIEW AND CRITICISMS OF Sep 15, 2018).
ATTACHMENT THEORY,
*
224
they are influenced by multiple genes. The research detectable effect on the trait of interest if studied in the
methodologies mentioned do not tell us which genes are general population5.
involved, only the relative influence of all genes as
opposed to the environment. Also, heritability (genetic This wrinkle (known as epistasis) may help explain why
influence) is a population value; knowing that height, for it is so difficult to establish a biochemical chain of
example, is 90 per cent heritable does not tell us that 90 causation between specific genes and complex human
per cent of any one person's height is due to genetic behaviours, although researchers have made heroic
ce
influences2. efforts to account for various traits, such as sensation
seeking as a function of dopamine receptors, and have
en
Brain development, brain activity and behaviour depend investigated various candidate genes to account
on both inherited and environmental influences, and for criminal violence6.
ud
there is increasing appreciation that social information
can, in turn, impact brain gene expression and Genes, therefore, play a vital role in determining
pr
behaviour. Furthermore, variation in behaviour shapes behavioural characteristics in all animals including
the evolution of genomic elements that influence social humans.
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behaviour through the feedback of natural selection3.
THE ‘CRIMINAL’ GENE
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Scientists can look at the influence of genes on
The concept of ‘criminal’ gene simply stands on the
behaviour by using a mathematical formula called a
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belief that there are certain genes which are associated
heritability estimate. Heritability estimates give
with criminal tendencies. But there is no specific gene
information about how much of impact genes have on
aw
that makes someone a criminal. The focus of scientists
a behaviour in a certain environment 4 . The study of
is to identify behavioural traits that might increase their
identical twins reared apart is a natural experiment
L tendency to engage in antisocial behaviour and consider
where two individuals with exactly the same genes grow
genes relating to these traits. The obvious traits to
of
up in different environments. If they turn out to be
consider are aggressiveness and impulsiveness.
similar, then the similarity can be attributed to genotype.
al
Aggressiveness can be defined as either ‘behaviour

Behaviour geneticists concluded that genetics plays a
rn
produced to cause physical harm to humiliation to

big role in personality, accounting for about half of the
another who wishes to avoid it7 or as a behaviour which
differences in personality test results and even more of
ou
is intended to increase the social dominance of the

the differences in IQ scores. We must also recognize
organism to the dominance position of other organisms8
that identical twins are a special case whose relevance to
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Impulsiveness is the tendency to act without foresight 9

the behaviour of ordinary people is disputable. The
Two molecules have been associated with both
na
problem is that many characteristics are affected by

impulsiveness and aggression are serotonin and
multiple genes. If there are six genes involved, identical
dopamine. Serotonin has specifically been linked with
io
twins will be the same because they have all six genes.
sensitivity to punishment and pleasure, while dopamine
Yet, taken separately, each of those genes might have no
nt
er
2 DEBRA WILSON, GENETICS, CRIME AND JUSTICE(2015). human-beast/201509/what-behaviors-do-we-inherit-genes

(last visited Sep 2, 2018).
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3 Gene E. Robinson, Russell D. Fernald & David F. 6 Ibid

Clayton, CURRENT NEUROLOGY AND NEUROSCIENCE 7 Human Aggression, GOOGLE BOOKS,
eI
REPORTS.(2008), https://books.google.com/books/about/Human_Aggressio
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3052688/ n.html?id=MOljg8xXI1oC (last visited Sep 13, 2018).
Th
(last visited Sep 13, 2018). 8 Natural born killers: The genetic origins of extreme
4 Genes, environment, and behavior, KHAN ACADEMY,
violence, NEUROIMAGE(2009),
https://www.khanacademy.org/test- https://www.sciencedirect.com/science/article/pii/S13591
prep/mcat/behavior/behavior-and-genetics/a/genes- 78909000354 (last visited Sep 10, 2018).
environment-and-behavior (last visited Sep 11, 2018). 9 Often associated with addictions , ADHD, bipolar and
5 What Behaviors Do We Inherit via Genes?, PSYCHOLOGY
ASPD
TODAY, https://www.psychologytoday.com/us/blog/the-
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225
has been implicated in reward sensitivity and sensation syndrome, therefore, became linked with an increased
seeking. The amount of serotonin and dopamine likelihood of criminality.
present in brain regions might, therefore, result in
people being more readily shaped by either rewards or MONOAMINE OXIDASE- A (MAOA)
punishments or more likely to engage in risky
Monoamine Oxidase-A (MAO-A) is an enzyme
behaviours, than others. Genes that regulate serotonin
encoded by the MAOA gene. Its role is to oxidase
and dopamine are therefore potential candidates for
neurotransmitters, which include serotonin and
ce
understanding a link between genes, the environment,
dopamine. MAOA gene is found in the short arm of the
and behaviour.
en
X chromosome.MAOA enzyme affects the production
XYY Syndrome of the serotonin significantly. Producing fewer enzyme
ud
results in less serotonin being degraded. The higher level
of serotonin therefore in the brain will result in the
Most people have 46 chromosomes in each cell. In
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person having an increased chance of acting impulsively
males, this typically includes one X chromosome and or aggressively when compared to a person with Hgh
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one Y chromosome (XY). The XYY syndrome is a MAOA.
genetic condition that occurs when a male has an extra
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copy of the Y chromosome in each of their cells (XYY). Dodge 12 described the low MAO-A activity as being
Sometimes, this mutation is only present in some cells. associated with a pattern of autonomous arousal and
&
Males with the XYY syndrome have 47 chromosomes defensive information processing that is characterised
because of the extra Y chromosome. This condition is by hypervigilance to handle hostile cues, hostile
aw
also sometimes called Jacob’s syndrome, XYY attributional biases, selection of self-defensive goals and
karyotype, or YY syndrome. According to the National L the experience of self-righteous anger. All of these
Institutes of Health, XYY syndrome occurs in 1 out of processing responses lead to highly aggressive
every 1,000boys10. For the most part, people with XYY behaviour. This does not mean, however, that a person
of
syndrome live typical lives. Some may be taller than with low MAOA will automatically act in this manner.
average and face learning difficulties or speech Studies show instead that the link arises only when the
al
problems. They may also grow up with minor physical gene interacts with environmental stresses. A person
rn
differences, such as weaker muscle tone. Besides these with Low MAOA gene, who has also been raised in a
complications, though, males with XYY syndrome don’t negative environment, is more likely to behave
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usually have any distinguishing physical features, and aggressively or impulsively than a person without one or
they have normal sexual development. In 1969 both of these factors. Neurochemicals are responsible
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Gibbens 11 summarised approximately 20 studies of for the activation of behavioural patterns and tendencies
na
XYY males in prisons or secured hospitals. These in specific areas of the brain (Elliot, 2000). As seen in
studies showed that while the natural birth occurrence the Brunner et al. study, there have been attempts to
io
of the XYY syndrome was approximately 0.1 per cent, determine the role of neurochemicals in influencing
the pooled frequency of the XYY men in the studies was criminal or antisocial behaviour. Included in the list of
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73/3818, or 1.89 per cent and the median for each study neurochemicals already cited by researchers are
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was 2.05 per cent. The studies suggested, therefore, the monoamine oxidase (MOA), epinephrine,
number of XYY males in these secured facilities was norepinephrine, serotonin, and dopamine.
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over 20 times the natural birth occurrence, XYY

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Th
10.XYY Syndrome: Causes, Symptoms, and http://europepmc.org/articles/PMC2279063 (last visited

More, HEALTHLINE, Aug 15, 2018).
https://www.healthline.com/health/xyy-syndrome (last 12 Owen D. Jones, Behavioral Genetics and Crime, in
visited Sep 8, 2018). Context, 69 Law and Contemporary Problems 81-100 (Winter
11 TC Gibbens, THE DELINQUENT AND HIS 2006)
BRAIN.ADDICTION & HEALTH,
*
226
The Brunner et al. study 13 is the only one to report and criminal tendencies but they come out when
findings of a relationship between a point mutation in exposed to environmental stresses.
the structural gene for MAOA and aggression, which
makes the findings rare. However, there has been other CRIMINAL GENE IN THE COURTS
evidence that points to the conclusion that deficiencies
What do the Courts do when a person who is accused
in MAOA activity may be more common and as a result
of heinous crimes and brought up with a defence that
may predispose individuals to antisocial or aggressive
he is ‘genetically predisposed’ to act so?
ce
behaviour (Brunner et al., 1993). MAO is associated
with many of the neurochemicals that already have a link There can be four phases in which the role of genetics
en
to antisocial or criminal behaviour. Norepinephrine, can be determined in a criminal justice process, which
serotonin, and dopamine are metabolized by both
ud
can be the following :
MAOA and MAOB (Elliot, 2000). While, according to
Eysenck (1996), MAO is related to norepinephrine, 1. before trial
pr
epinephrine, and dopamine, which are all related to the 2. during the trial
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personality factor of psychosis. 3. during the sentencing for the crime
4. post-trial15
The studies14 suggest that there is a link between levels
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of MAOA and the incidents of anti-social behaviour, Before Trial Stage
particularly when there has been a negative
&
environment. The studies do however lack consistency. The before trial stage includes the determining of the
tendency of committing a crime before it has been done.
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Also, they suggest that it is not accurate to label MAOA
as the ‘criminal gene’. The studies tell us that individuals This phase has several issues that it poses. First, it deals
with (a) Low MAOA and (b) childhood maltreatment with the issues of privacy. The access to information
L
are more likely to engage in (c) anti-social behaviour about one’s genetic condition by the government is
of
than other individuals. This does not mean (a)+ (b)= (c). considered to be an invasion of privacy. This problem
It cannot be genetically tested to assign a person a score involves as to how can the government get access to a
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based on his level of childhood maltreatment and then person’s genetic information and further how can the
Court admit the genetic information as evidence.
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use this to predict whether he will engage in antisocial

behaviour.’ And using the word ‘genetic predisposition’
Groups such as the America Civil Liberties Union
ou
is inaccurate since it is not just genetics that is important

(ACLU) have already raised both civil liberty and privacy
but also the environment as well
concerns about the government’s access to information
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Therefore, it can be accurately stated that Genetics does that could tell it whether a person has a predilection for
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play an important role in determining the behavioural a certain genetic disease, condition, or behaviour.16
characteristics which can be associated with antisocial
io
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13 Money, John (2012) "Impulse, Aggression and Sexuality in Dangers Than Meet the Eye, ACLU Says, (Mar. 23, 2000),
the XYY Syndrome," St. John's Law Review: Vol. 44: No. 2, http://www.aclu.org/
er
Article 5 Privacy/Privacy.cfm?ID=7886&c=129 (on file with Arizona

14 Onay, Ozan (2006). The true ramifications of genetic Law Review). The ACLU has
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criminality research for free will in the criminal justice also weighed in on fears that the genetic samples taken will be
system. Genomics, Society and Policy 2 (1):80-91 used for more than
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15 Lisa Schriner Louis,The Role Genetics information plays in the establishing mere identity and can be used to predict some
Criminal Justice System, 4,000 genetic conditions. Laura
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16 In 2000, the ACLU advised legislatures to beware the W. Murphy, Am. Civil Liberties Union, ACLU Letter to the
dangers of House Judiciary Committee
genetic Expressing Concerns About HR 3214, the Advancing Justice Through
DNA Technology Act
databases, fearing misuse of the genetic information. ACLU, of 2003 (Oct. 8, 2003), at
DNA Databases Hold More http://www.aclu.org/Privacy/Privacy.cfm?ID=14002&c=1
29 (on
*
227
Collecting DNA constitutes a search and seizure,17 but may have an affirmative defence. Early studies found
courts have deemed it justifiable because of society’s that there were a disproportionately high number of
compelling interest. It is impossible to imagine that a males with an extra Y chromosome in maximum-
court would uphold a governmental decision to arrest security prisons.20 Given the inconsistencies in studies
people or force them into rehabilitation programs based that attempt to prove a correlation between violence
on behavioural evidence that they are more likely to and21 an extra Y chromosome the reason most courts
commit a crime. give for not accepting the XYY defence is that it is not
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based on proven and accepted research. Also, there are
Conduct genetics does not figure out who will carry out problems with the admissibility of the genetic evidence
en
a wrongdoing, as it were that a man has a preference or in the Courts. In determining whether certain evidence
improved probability of displaying anti-social conduct is admissible in Courts, the first question that arises
ud
when joined with different components like condition whether the information is irrelevant. And, if the said
and childhood. Further, there are serious privacy evidence would have an adverse effect on the judgement
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worries in letting the government have that much access or result in unfair prejudice22. It is highly unlikely that in
to such close to personal data—data that could perhaps
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a Court that genetic information would be admitted as
uncover various expose multiple genetically linked evidence since the relationship between the criminal
medical and psychological conditions. While being able
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offence and the genetic condition has to be proved. It is
to prevent crime before it happens is a worthwhile because the genetic studies and research haven’t
cause, it is wrong to punish people before they have
&
progressed so much as to establish a direct causal
committed a crime. The societal interest in preventing relationship between the genes and the behaviour.
aw
harm to citizens is great, but the cost to our civil liberty Nevertheless, genes do influence human behaviour,
and privacy is too high. Therefore, the criminal justice which undermines the many criminal justice systems
system should never be allowed to use genetic
L reliance on the theory of free will. As a result, the
information at this stage of the criminal process. criminal justice system should begin to take into
of
consideration the biological23 causes of conduct rather
Trial Stage
than just the psychological decision-making process.
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During the Trial stage, The general rule is that a This may entail a system that weighs all factors affecting
rn
defendant must have acted voluntarily to be convicted behaviour, with graduating. 24 levels of accountability
of a criminal act.18 If the act was involuntary, then the based on the sum of all such factors With the extensive
ou
defendant cannot have exercised free will 19 Thus, in advances that genetic research has made and promises
certain cases in which a genetic condition is argued to to make in identifying a gene that influences behaviour,
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have been the cause of an illegal action, the defendant

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file with Arizona Law Review). 22 DEBRA WILSON, GENETICS, CRIME AND JUSTICE(2015).
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17 Supra note 15
18 JOSHUA DRESSLER, CASES AND MATERIALS ON
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CRIMINAL LAW 123 (3d ed.

2003); see also MODEL PENAL CODE § 2.01(1) (1985). 23 Steven I. Friedland, The Criminal Law Implications of the
er
19 DRESSLER, supra note 18, . Human Genome

20 See LAFAVE, Most women are born with two X Project: Reimagining a Genetically Oriented Criminal Justice System,
nt
chromosomes (XX), while most men are born with an X and 86 KY. L.J. 303, 329 (1998).
24 See Richard Lowell Nygaard, Freewill, Determinism, Penology,
a Y chromosome (XY). GRIFFITHS ET AL., supra note 20,
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at 70. Some individuals, however, are born with and the

chromosomal abnormalities at the twenty-third (sex) Human Genome: Where’s a New Leibniz When We Really Need
Him?, 3 U. CHI. L. SCH.
Th
chromosome, and they have an extra sex chromosome. One

of these abnormalities is the“super male” or XYY ROUNDTABLE 417, 433–34 (1996) (arguing that a
abnormality. See WAYNE R. LAFAVE, SUBSTANTIVE criminal law system based on the idea of free will perseveres
CRIMINAL LAW§ 9.3 (2d ed. 2003). See also Rebecca yet goes against common sense and that the current criminal
Dresser, Criminal Responsibility and the “Genetics Defense”, in justice
GENETICS AND CRIMINALITY, system will need to undergo drastic changes to respond to
21 Roberts, 544 P.2d at 759; Yukl, 372 N.Y.S.2d at 319. criminal behavior).
*
228
shall further be discussed through the subsequent part individuals prevail over rights of security. Hence, refuge
of the article. cannot be denied on grounds of peace and security.
The Sovereignty Argument INDIA- BANGLADESH: CASE STUDY

The States raise respect for sovereignty as a ground for Cross-border migration of people from Bangladesh to
rejecting refugees and argue that they have the sole India is a source of long-standing debate and an issue of
discretion to determine whether a foreigner should be policy contention between the countries. Bangladeshi
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given entrance to their dominion. 44 Thus, they justify scholars and policymakers do not accept this claim of
en
the act of not granting entry to environmental refuges as India. It is true that many people have migrated from
an exercise of their sovereignty. 45 So much so, that Bangladesh to India since the 1947. The occurrence of
ud
States also try to evade the principle of non- natural disasters and the unilateral diversion of water
refoulement, which obligates every State to protect an through Farakka Barrage by India have placed
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individual whose life is threatened, on grounds that the Bangladesh in a vulnerable position. Coupling with that
same is applicable for refugees in the territory of the poverty, economic underdevelopment and lack of
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host States46 and not the border,47 thereby terming their livelihood have forced a number of people to migrate
acts of refusing entry valid if the refugees are at the both internally and out of the country. India is always
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border. The States no doubt raise compelling arguments expressing concern about the perceived infiltration of
to support their stance of non-entry to the refugees but Bangladeshi people into its land.
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the same fall short on humanitarian grounds, as
sovereignty of a State cannot be a justification for it to These double effects of it affect agricultural and
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commit human right violations and non-entry to these industrial production, disrupted domestic water supply,
refugees in a way leads to their human rights being fishing and navigation and changed the hydraulic
L
violated. character of the river and the ecology in the downstream
of
of the delta. More than five million people in
The Human Rights Argument Bangladesh are living in areas which are highly
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vulnerable to cyclones and storm surges. Flooding

Since refugee law is concerned with the identification
currently displaces 5,00,000 people every year in
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and guaranteeing the rights of refugees, it has a

Bangladesh 52 . It has been estimated that 20 million
fundamental link with human rights law.48 Especially in
people are annually migrating from Bangladesh to India
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cases of mass influx, the States have been held to have a 53 . The future effects of climate change are likely to
minimum obligation to ensure admission for safety,
increase the flow of population from Bangladesh to
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security 49 and respect for basic human rights. 50 These

India. It is argued that climate refugees from Bangladesh
basic human rights have not been held subordinate to
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alone might outnumber all current refugees

peace and security, 51 as the basic necessary rights of
worldwide. 54 During the rainy season, the Farakka
io
nt
44 Nishimura Ekiu V. US, 142 US 651 (12 S.Ct. 336, 35 L.E.D. 50 International Maritime Organization (IMO), International
1146)(U.S.) Convention For The Safety Of Life At Sea, 1
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45 Forced Displacement, Supra Note 31. November 1974, 1184 UNTS 3.

46 Catherine Phuong, Identifying States’ Responsibilities 51 ANTHONY C., INTERNATIONAL LAW AND THE
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Towards Refugees And Asylum Seekers, Esil Research Forum, USE OF FORCE, 118 (1993).
International Law: Contemporary Problems, Geneva, 52 Warner K, C Ehrhart, Alex De Sherbenin, S Adamo And T
eI
2005available At Chin-Onn (2009): “In Search Of Shelter, Mapping The Effects

Http://Www.Esilsedi.Eu/Sites/Default/Files/Phuong.PDF. Of Climate Change On Human Migration And Displacement”,
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47 Sale, Acting Commissioner, INS V Haitian Centers Council By 2008 Cooperative For Assistance And Relief Everywhere,
(1993) 113 S.Ct 2549 (U.S.). Inc (CARE).
48 Catherine Phuong, Identifying States’ Responsibilities 53 Brown, O (2007): “Climate Change And Forced Migration:
Towards Refugees And Asylum Seekers, University Of Observations, Projections And Implications”, Background
Newcastle, UK Available At Http://Www.Esil- Paper For The 2007 Human Development Report
Sedi.Eu/Sites/Default/Files/Phuong.PDF. 54 Myers, N (1993): “Environmental Refugees In A Globally
49 Non- Refoulement Principle, Supra Note 37 Warmed World”, Bioscience, 43: 752-61. – (1997):
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133
Barrage lets the overflowing water pours into everyday life due to this fencing initiative. The problem
Bangladeshi land through the barrage, which causes India faces is that around 100,000 of its citizens live and
flood in Bangladesh every year. farm on a 150-yard long patch of land hugging the
international border known officially as “the zero line”,
Ongoing environmental destruction, shrinking of and they live on the wrong side of the fence's designated
livelihood and the already happening climate change- path. Entire village, including schools, temples and
induced effects on people become a concern of survival mosques lie in what effectively becomes no man's land.56
ce
for Bangladesh. In the coming decades, we presume,
environmental scarcity, resource depletion and There are also allegations that some of the illegal
en
degradation, and consequent displacement of people immigrants are involved in “gun running, fake currency
will continue, unless there are any effective measures to rackets and drug running”; 57 and that illegal immigration
ud
tackle the underlying and proximate causes of it. could be used by radical and terrorist organizations
based in Bangladesh to infiltrate into India. Some
pr
National Security Concerns approve of providing temporary or seasonal asylum but
when the immigrants choose to settle in India
ris
Environmental stresses in Bangladesh and resultant
permanently, there is a significant amount of resistance
migration to India are two important factors to create
due to these inherent dilemmas, based on the inclusion
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inter-state conflict between the two neighboring
versus exclusion debate. Hence, securitizing environment-
countries. The Indian government sources claim that
induced migration in such circumstances would be
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about 20 million illegal Bangladeshi immigrants are
problematic as it would entail taking on obligations to
living in India and India has labelled some of them as a
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safeguard Bangladeshi citizens’ interests. 58
security risk. Certain reactionary groups in India have
already raised the slogan that, L The so-called “mass migration”, involving millions of
people, triggered by climate change is indeed less likely
“save the nation, save identity. Let's take an oath: no food, no job,
of
to affect India domestically in the short or medium term.
and no shelter to Bangladesh.”55
But what the country cannot afford to do at this stage is
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India, however, is not only confined to taking action to neglect the role of gradual and abrupt changes in
within the country but is also devoted to building an environment in aggravating population movement as
rn
over 2500-mile long fence along the border of well as their long-term first and second-order impacts.
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Bangladesh. This initiative has created a contentious

relationship between these two friendly countries, as this THE WAY FORWARD: EIGHT
NATIONAL MISSIONS
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is contrary to the philosophies of human rights and

international law. Many Bangladeshis living close to the
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The National Action Plan on Climate Change (NAPCC)

border and the people living in enclaves within the
in India is based on large resources endowments, in to
Indian border have been facing severe problems in their
io
nt
“Environmental Refugees”, Population And Environment, Paper presented in the Workshop on Undocumented
19(2): 167-82. – (2002): “Environmental Refugees: A Growing Migration From Bangladesh to West Bengal organised by
er
Phenomenon Of The 21st Century”, Philosophical Population Studies unit held in Indian Statistical Institute,
Transactions Of The Royal Society, 357(1420): 609-13. Kolkata. Quoted in Datta, Pranati (2004), “Push-Pull Factors
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55 Rupakjyoti Borah, “ Migration Induced Strife Looming of Undocumented Migration from Bangladesh to West
Large in Assam ”, Society for the study of peace and conflict, Bengal: A Perception Study”, The Qualitative Report, 9 (2):
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available on: p.337.

http://www.sspconline.org/opinion/MigrationInducedStrif 58 Barman, Dalem Ch. (2004), “Forced Migration in South
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eLoomingLargein Assam, last accessed on 10 November, Asia: A Study of Bangladesh”, in Omprakash Mishra (ed.)
2011. Forced Migration in the South Asian Region: Displacement,
56 ODHIKAR, “Trigger Happy”, Excessive Use of Force by Human Rights and Conflict Resolution, Kolkata: Centre for
Indian Troops at the Bangladeshi Boarder, Human Rights Refugee Studies, Jadavpur university, in collaboration with
Watch, United States of America, 2010. Brookings Institution- SAIS Project on International
57 Roy, Guha (2003), “Some observation on Bangladeshi Displacement, Washington DC and Manak Publications
migration to India with special reference to West Bengal”, Private Limited. p. 160
*
134
only genes which predispose people to an increased

frequency of impulsive-compulsive behaviours and that
put them at greater risk of being involved in criminal
behaviour.”31
Low MAOA levels have a link with the tendency to act

in an aggressive and impulsive manner but it will only be
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effective in most cases if combined with external
circumstances that bring this condition out. But no
en
direct link has been established which state that these
particular genes lead to crimes.The criminal justice
ud
system has largely ignored the role that a person’s
biological makeup, when combined with sociologic
pr
factors, plays in the criminal tendencies and recidivism
rates of offenders. 32 The world is moving towards a
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more and more technologically efficient arena wherein
crimes would be solved using DNA technology.
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Therefore, catching hold of criminals using their genetic
disposition does not seem to be a far-fetched idea. Even
&
if such a discovery were made, the criminal justice
aw
system would handle it as just any other type of cause,
and so cases of genetic defence would be treated as cases
of psychological- or environmental-based defences of
L
insanity or automatism are treated now. Also, enhanced
of
genetics data will probably, and should, influence the
presumptions whereupon our criminal equity
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framework is based—suspicions identified with both

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culpability and treatment. While there are stages amid

the criminal procedure where it would be unseemly to
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depend on genetic data, as an indicator of future

violence, a comprehension of the hidden social and
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biological components associated with culpability will

eventually create empathetic strategies with a superior
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deterrent impact, particularly in the territories of

condemning and restoration. It is thus that approach
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producers need to start stepping toward joining a

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portion of this organic learning into the equity

framework.
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Our fate may yet be in our genes.

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31Jones, (citing Natalie Angier, Disputed Meeting to Ask if 32 See generally Fishbein, at 1-3 to 1-4.
Crime Has Genetic Roots, N.Y. TIMES, Sept. 19, 1995, at C1).
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231
TRANSGENDERS IN INDIAN LAW – THE WAY AHEAD

RACHEL JACOB THARAKAN
INTRODUCTION Mukhopadhaya, overturned the High Court’s decision,

after finding it “legally unsustainable.”5 Further, the Naz
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From the brave warrior Srikhandi in the Mahabharata to foundation’s review petition was also quashed by the
en
the inspiring entrepreneur Kalki Subramaniam, the Supreme Court.
Transgender community of India has undergone a long In the meantime, the NALSA verdict came into
ud
struggle to achieve the status of “Third Gender” in the existence. The case was concerned with the grievances
eyes of law. Despite having a population of more than of the members of the Transgender Community, who
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500,0001, they have remained the true oppressed class seeked a legal declaration of their gender identity since
for centuries, until the landmark NALSA verdict 2 on the non-recognition of the same violated their rights
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April 15th, 2014. In the ground – breaking judgement, under Articles 14 to 16 and 21. Hijras / Eunuchs, who
the highest court of the land affirmed the constitutional also fell in that group, claimed legal status as a third
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rights and freedoms of Transgender persons and broke gender with all legal and constitutional protection. The
the binary gender construct of “man” and “woman” that petitions were filed by The National Legal Services
&
has pervaded Indian law. The status of a third gender Authority and Poojaya Mata Nasib Kaur Ji Women
was meant to open up new opportunities for the Welfare Society. Moreover, Laxmi Narayan Tripathy, a
Transgender population as a minority group and to
provide them with the dignity, guaranteed by the
L
Constitution of India. However, even after four years of
aw
Hijra, also got impleaded so as to effectively put across
the cause of the members of the Transgender
community. The judgement discussed the traumatic
of
the judgement, the situation remains the same. This experiences faced by Transgenders and their deprivation
short comment aims to discuss the basic and essential of social and cultural participation and the restricted
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rights of the Transgender community and evaluate it access to education, health care and public places.
with respect to the provisions of the Transgender Further, it was also pointed out that the community
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Persons (Protection of Rights) Bill, 2016 and the faces discrimination with respect to contesting elections,
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decriminalization of Section 377 3 of the Indian Penal right to vote, employment etc. and is in effect, treated as
Code and recommend a better inclusive mechanism outcasts and untouchables. Thus the court held thus:
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under the present laws.

“(1) Hijras, Eunuchs, apart from binary gender, be treated as
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BACKGROUND “third gender” for the purpose of safeguarding their rights under
Part III of our Constitution and the laws made by the Parliament
In July 2009, in a PIL filed by the Naz Foundation, the
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and the State Legislature.

Delhi High Court decriminalized homosexuality among
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consenting adults, holding it in violation of Article 14, (2) Transgender persons’ right to decide their self-identified gender
15 and 21 of the Constitution of India.4 However, in is also upheld and the Centre and State Governments are directed
er
December 2012, a two-judge bench of the Supreme to grant legal recognition of their gender identity such as male,
female or as third gender.
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Court comprising Justice G S Singhvi and Justice S J

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1 2011 Census Report, http://censusindia.gov.in/2011- may extend to ten years, and shall also be liable to fine.
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Common/CensusData2011.html, (last visited September 13, Explanation.—Penetration is sufficient to constitute the

2018). carnal intercourse necessary to the offence described in this
2 National Legal Services Authority v. Union of India, WP section.
(Civil) No 604 of 2013. 4 Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law
3 Unnatural offences.—whoever voluntarily has carnal inter- Times 277.
course against the order of nature with any man, woman or 5 Suresh Kumar Koushal and Anr. v. Naz Foundation and
animal, shall be punished with 1[imprisonment for life], or Ors., Civil Appeal No. 10972 OF 2013.
with imprisonment of either description for a term which
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232
(3) We direct the Centre and the State Governments to take steps makes culpable should be decriminalized. But this case
to treat them as socially and educationally backward classes of involves much more than merely decriminalizing certain
citizens and extend all kinds of reservation in cases of admission conduct which has been proscribed by a colonial law.
in educational institutions and for public appointments. The case is about an aspiration to realize constitutional
rights. It is about a right which every human being has,
(4) Centre and State Governments are directed to operate separate
to live with dignity. It is about enabling these citizens to
HIV Serosurviellance Centres since Hijras/ Transgenders face
realize the worth of equal citizenship. Above all, our
several sexual health issues.
ce
decision will speak to the transformative power of the
(5) Centre and State Governments should seriously address the Constitution. For it is in the transformation of society
en
problems being faced by Hijras/Transgenders such as fear, shame, that the Constitution seeks to assure the values of a just,
gender dysphoria, social pressure, depression, suicidal tendencies, humane and compassionate existence to all her
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social stigma, etc. and any insistence for SRS for declaring one’s citizens.”8
gender is immoral and illegal. Meanwhile, the Transgender Persons (Protection of
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(6) Centre and State Governments should take proper measures Rights) Bill, 2016 is yet to be re – introduced in the Lok
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to provide medical care to TGs in the hospitals and also provide Sabha, after all the amendments made in the past two
them separate public toilets and other facilities. years. Thus, the Transgender community still remains
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without an established identity under the Indian law.
(7) Centre and State Governments should also take steps for
framing various social welfare schemes for their betterment. ANALYSIS
&
(8) Centre and State Governments should take steps to create
From the above discussion, it is clear that the
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public awareness so that TGs will feel that they are also part and
recognition of the Transgender community has
parcel of the social life and be not treated as untouchables.
unfortunately, been limited to the landmark decisions of
L
(9) Centre and the State Governments should also take measures the Supreme Court. The Supreme Court, acting as the
of
to regain their respect and place in the society which once they true representative of the people, has taken leaps
enjoyed in our cultural and social life.”6 forward to establish an identity for the Transgender
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Thereafter, the Supreme Court, in a landmark judgment community and ensure a society wherein they are treated
as equal citizens and human beings. The same has
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in August 2017, held Right to Privacy as a fundamental

right. It also observed that the “right to privacy and the resulted in a visible change in certain societies such as
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protection of sexual orientation lie at the core of the the first transgender judge in West Bengal or the
fundamental rights guaranteed by Articles 14, 15 and 21 employment opportunities provided by the Kerala
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of the Constitution”. 7 On September 6, 2018, a five- government. 9 It is noted to be that despite these
verdicts, the societal conditions of the community
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judge Constitutional bench, led by Chief Justice Dipak

Misra delivered a judgment on the petitions challenging remain dire for the majority. The conditions will
definitely see a major change once the Bill comes into
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Section 377, decriminalizing the section to recognize the

sexual rights of the LGBTQ community. Justice existence as an Act, providing a legislative backing to the
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Chandrachud discussed in detail about the future rights community. The Bill establishes a definition for the
Transgender people and provides an umbrella
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of the community speaking for the bench thus: “In

seeking an adjudication of the validity of Section 377, legislation for their rights and identification. However,
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these citizens urge that the acts which the provision that is a very small step in correcting the wrongs that the
community has been subjected to. The community is
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6 National Legal Services Authority v. Union of India, WP 9 Sheji Sabu, Year ender 2017: The many first steps India
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(Civil) No 604 of 2013, 109 – 111. took to embrace transgender people, Deccan Chronicle,
7 Justice K S Puttaswamy (Retd.) and Anr. v. Union of India Dec, 27, 2017, available at
and Ors., WP (C) 494/2012. https://www.deccanchronicle.com/nation/current-
8 Navtej Singh Johar & Ors. v. Union of India thr. Secretary affairs/271217/year-ender-2017-the-many-first-steps-india-
Ministry of Law and Justice, W. P. (Crl.) No. 76 of 2016. took-to-embrace-transgender-people.html
*
233
still discriminated by the other laws of the land, which known by the words of the written law. After all, a right
have no provisions for them. This needs to be changed not expressed is often a right denied.
in order to ensure complete constitutional autonomy to
such citizens.
RECOMMENDATIONS
As a step ahead of the implementation of the Bill,
ce
amendments must be brought about in the Criminal
en
Law of the country to be inclusive of the Transgender
community. The community has been subjected to
ud
severe discrimination and torture with the use of the
provisions under the same. In the wake of
pr
decriminalization of Section 377, it is the right time to
expressly include transgenders under the provisions for
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sexual offences. The same would require for the law to
become gender neutral, as suggested by the Justice
Ju
Verma Committee of 2012.10 The conduciveness of the
same has been repeatedly questioned but the express
&
inclusion of transgenders is a must to ensure that the
community is no longer subjected to the draconian
societal opinions. Moreover, the laws related to
marriage, adoption and family will also require
amendments to have special provisions that include the
L aw
of
members of the transgender community.
al
CONCLUSION
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The transgender community is a small but important

part of our society. Every nation is to protect and treat
ou
all of its citizens equally without any discrimination on

the grounds of their sexual orientation. This principle
lJ
has been enshrined under Articles 1411, 1512 ad 1613 of

na
our Constitution and repeatedly upheld by international

human rights instruments. The laws of our land have
io
been built on the foundation of the binary gender of

man and woman. With the introduction of the third
nt
gender, there is an express need to change the laws to

er
be inclusive of them and thereby, push them to an equal

status in society. The legislature has deemed the same to
nt
be an inherent ideal but keeping in mind the present

eI
societal condition of our nation, it is best to make it

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10 Available at discrimination on grounds of religion, race, caste, sex or

http://www.prsindia.org/parliamenttrack/report- place of birth.
summaries/justice-verma-committee-report-summary-2628/ 12 Prohibition of discrimination on grounds of religion, race,
11 Equality before law - The State shall not deny to any caste, sex or place of birth.
person equality before the law or the equal protection of the 13 Equality of opportunity in matters of public employment.
laws within the territory of India Prohibition of
*
234

SHRUTIKA LAKHOTIA
“I say nothing, not one word, from beginning to end, and neither Do we still need them? The answer to all the questions
does he. is in negative.
ce
If it were lawful for a woman to hate her husband, I would hate
en
him as a rapist.”
JUSTIFICATIONS
ud
-Philippa Gregory, The Red Queen. The justifications to marital rape are the reason why
India still chooses to keep quiet on the matter. These
INTRODUCTION justifications have originated in ancient era as well as
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have evolved with the passage of time. The first and
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A woman’s honor and dignity cannot be touched or very basic justification is ‘implied consent theory’ which
violated.1 She is entitled to lead a respectable and serene presumes that at the time of marriage; woman has
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life. This is why rape is considered to be one of the most impliedly consented to sexual intercourse with her
heinous crimes in our society. However, in this context, husband. The creator of this notion is Sir Matthew Hale
&
a married woman does not have rights for her honor and who explains that “the husband cannot be guilty of a
dignity. Prefixing the word “marital” before ‘rape’ rape committed by himself upon his lawful wife, for by
aw
changes a woman’s destiny, rights and indeed her life! their mutual matrimonial consent and contract the wife
Marital Rape is not an offence in India because the L hath given up herself in this kind unto her husband,
concept is hidden behind the glorified veil of marriage. which she cannot retract.”2 This justification is based
on Contract Theory, where parties (husband and wife)
of
Prima facie, rape and marital rape do not possess the
have impliedly consented to sexual intercourse and
same characteristics or consequences in the eyes of law
wife’s revocation of the same gives husband the right to
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as well as in our society. Here it is important to put

violently indulge his wife in the act of sexual intercourse.
rn
forward a reflection of our society rather than theories. 3

For instance, when an unfortunate daughter comes up
ou
to her dad and says, “dad, I’ve been raped by a stranger”. The term ‘implied consent’ has been used irrationally.
Her dad will get anxious, angry, and restless, assuring her When a person enters into contract, they do so for their
lJ
daughter that she will get justice. Amid his thousands of own benefits and not to sustain any kind of harm or
emotions, he will do everything to get her daughter’s
na
injury. In other words, the primary intention of any

rapist(s) punished. But will he react the same way when person coming into contractual obligations by giving
her married daughter comes up and tells him that she
io
their consent is to benefit them and never incur any kind

has been raped by her very own husband? Despite the of loss or damage. But in case of marital rape, this
nt
fact that this time it’s not just her dignity which is at reasoning behind formation of Contracts has been
stake, but also her faith, belief and trust.
er
vanished. Why will a woman voluntarily consent to any

bodily harm or injury? The picture of ‘implied consent’
nt
In order to validate marital rape, there are several does not fit here! There is no doubt about the fact that
justifications prevailing since ages. The question which consensual sex between husband and wife comes within
eI
needs utmost attention here is that are these the compass of law, but assuming implied consent of the
justifications valid? Are they rational and reasonable?
Th
wife to be harmed exceeds the limits of the law. 4 Hence,

the use of term ‘implied consent’ is inappropriate
1 Bodhisattwa Gautam v. Subhra Chakraborty, A.I.R. 1996 3 Jessica Klarfeld, A Striking Disconnect: Marital Rape Law’s
S.C. 922 (India). Failure to Keep up with Domestic Violence Law, 48 AM. CRIM. L.
2 SIR MATHEW HALE, THE HISTORY OF THE PLEAS REV. 1825 (2011).
OF THE CROWN 629 (S.Emlyn ed., 1778). 4 Ibid.
*
235
because “no one consents to violence when they marry”. contended that no one is allowed to march into the
5 This shows that the pre-requisites of contract do not matters of husband and wife as it will destroy the
exist as there is no objective manifestation of intent to sanctity of institution of marriage. However, marital
agree to the violence.6 privacy isn’t an absolute right; State should not
guarantee marital privacy over women’s bodily integrity
Nevertheless, if a person still accepts the ‘implied and dignity.12 As a society, we often tend to forget that
consent theory’, he/she must be reminded that one of when a husband takes the defense of ‘marital privacy’
ce
the main objectives of criminal law is to forbid an after committing marital rape- it is the couples’ privacy
individual from inflicting a serious bodily harm on and not his alone. If a husband is allowed to invade his
en
oneself and another. 7 The very idea of women’s wife’s privacy then our legal system must be efficient
implied consent to allow her husband to cause serious enough to give rights to that wife, so that she can draw
ud
bodily harm and injury is against this objective. Hence, off the curtains of ‘marital privacy’. Moreover, “the
State must prohibit such a contractual obligation which exemption itself interferes with the marital relationship
pr
results into infliction of serious bodily harm and injury because it gives the husband legal control over his wife's
upon a person.8
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bodily integrity that he otherwise would not have.”13
One more possible interpretation of the word ‘consent’
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This justification sets its throne on marital privacy but
is done by U.S. Courts stating that the wife “consents”
do we ensure marital privacy in each and every aspect of
only to “healthy sexual intercourse” and this does not
&
marriage? Husband can already be charged for grossest
allow husband to communicate venereal disease to his
violation of bodily integrity like murder, manslaughter
wife.9 The term “consent” should also include not being
aw
and even for intentional miscarriage 14 , then why not
battered or harmed while having sexual intercourse,
marital rape? Reconciliation theorists have multiple
which Indian law fails to recognize.
L answers to this question.
The contract theory can also be challenged from
of
beginning to end analysis of the actions of the The reconciliation rationale for marital rape exemption
contracting party in a marriage. On the occurrence of is a porch of the "closed curtain" and privacy
al
breach of contract, a person approaches court to get the validation.15 The reconciliation theory suggests that for
rn
suitable remedy; therefore husband cannot do justice by the benefit of spouses, it is advisable that they resolve
a forceful enforcement of contract by having non- their issues among themselves without any external aid
ou
consensual sexual intercourse. 10 This proposition was as it would grow their bond and affection towards each
also recognized by the New Jersey Supreme Court in other. They further argue that bringing the issue of
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State v. Smith 11 wherein the Court stated “[i]f her marital rape to court will worsen the case and there will
na
repeated refusals are a ‘breach’ of the marriage be zero possibility of reconciliation. However one need
‘contract’, his remedy is in a matrimonial court, not in to understand that to guard a rotting and sadistic
io
violent or forceful self-help.” marriage by suggesting reconciliation at the

disbursement of the woman’s rolling abuse is an evil act
nt
The next justification which enhances the immunity of in itself.16

er
marital rape is the privacy in marital sphere. It is often

nt
5 Sallee Fry Waterman, For Better or for Worse: Marital Rape, 15 11State v. Smith, 2d N.J. 38, 85 (1981).
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N. KY L. REV. 614 (1988) 12 Linda Jackson, Marital Rape: A Higher Standard Is in Order, 1
6 Susan Barry, Spousal Rape: The Uncommon Law, 66 A.B.A. J. WM. & MARY J. WOMEN & L. 183 (1994).
Th
1088 (1980). 13 People v. DeStefano, 2d MISC. 113, 121 (1983).

7 Maria Pracher, The Marital Rape Exemption: A Violation of a 14 Rape and Battery between Husband and Wife: Criminal Law.
Woman’s Right of Privacy, 11 GOLDEN GATE U. L. REV. 730 Husband and Wife. Rape. Battery, 6 STANFORD LAW
(1981). REVIEW 719(1954).
8 Ibid. 15 Id., at 12
9 Popkin v. Popkin, 1 Hagg. Ecc., 765 (1794). 16 Lalenya Weintraub Siegel, The Marital Rape Exemption:
10 Ibid. Evolution to Extinction, 43 CLEV. ST. L. REV. 351 (1995)
*
236
people within the countries so that proper action

can be taken to address their problems.
Current knowledge based on the relation between

climate change and migration of people is still limited.
There is a need for a better understanding of the relation
between climate change and migration. The
ce
international community should not be distracted by the
semantic differences between words to describe the
en
status of people migrating due to climate change. We
need to recognize the problem and appropriate
ud
strategies and measures to assist the people displaced by
climate change should be devised to effectively deal with
pr
the problem.
ris
Ju
&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
eI
Th
*
137

NAINA SRIVASTAVA
INTRODUCTION limit, and command over the advantages, assets, or

settings from transnational dangers imperil worldwide
ce
Surely, oceanic security is a noteworthy mainstay of security."4 Thus, states need to cooperate to empower
en
worldwide peace and security yet the term is deciphered compelling universal counter terrorism law & the threats
in various ways. As Ban Ki-Moon expressed it: "There to Maritime Security. At present there are various
ud
is no all-round acknowledged meaning of the term dangers to oceanic security: composed wrongdoing,
'oceanic security'. Much like the idea of 'national robbery, sea fear based oppression, medication and
pr
security', it might contrast in importance, contingent human trafficking, human carrying, and the
upon the specific circumstance and the users."1 Some multiplication of weapons of mass pulverization
ris
creators declare "Security, in any case, is the work to (WMD) are a little determination of hazards that request
ensure against individuals who need to hurt us universal consideration and assets. In the accompanying
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deliberatively"2 while others all the more exactly depict sections, the degree is restricted to parts of sea fear
it as "the insurance of a state's property and oceanic based oppression. In any case, some consideration is
&
region, framework, economy, condition, and society likewise paid to robbery so the two ideas can be
from certain destructive demonstrations happening separated.
adrift." 3 Independent from the comprehension of the
term, the dangers confronting sea security are by and
large recognized. Maritime psychological oppression is
L aw
The Threats to Maritime Security
At present there are various dangers to oceanic security:

of
among those and, truth be told, it is a standout amongst
composed wrongdoing, robbery, sea psychological
the most genuine dangers to global peace and security,
oppression, medication and human trafficking, human
al
as recognized in ongoing goals of the United Nations

sneaking, and the expansion of weapons of mass
Security Council. It imperils not just the goal of the
rn
annihilation (WMD) are a little determination of threats

United Nations Charter, which is upkeep of peace and
that request universal consideration and assets. In the
ou
security, yet additionally the world's economy, the

accompanying sections, the extension is restricted to
flexibility of oceans, an unblemished marine condition,
parts of sea fear mongering. Nonetheless, some
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and human lives. The colossal fear monger assaults on

consideration is additionally paid to robbery so the two
September 11 and the accompanying overall
na
ideas can be separated.

acceleration of psychological oppression went about as
a defining moment in the worldwide impression of the Theft and Armed Robbery at Sea
io
risk presented by psychological oppressor associations.

nt
Psychological oppressor bunches working adrift have Robbery has been in presence for quite a long time, in
for some time been dismissed as a practical risk however spite of the fact that it was thought to have turned out
er
is currently observed as an unequivocal concern. The to be unimportant before another influx of privateer
assaults happened in the 1980/90s that still waits right
nt
observable effects of savage acts cause nearby, national

and territorial, as well as have global outcomes. Basic up 'til the present time5. Benefitting from globalization
eI
cures are pivotal, since "no single state has the power, and modernization, theft formed into severe hits with
Th
1 Secretary-General, Report Oceans and the Law of the Sea, 4 Jon Peppetti, "Building the Global Maritime Security
A/63/63 (10th March 2008), 39. Network," Naval Law Review 55 (2008), 86
2 Kaare André Kopperud and Moritz Askildt, Security at Sea: 5 José Jesus, “Protection of Foreign Ships against Piracy and
The International Ship and Port Facility Code (Nesttum Terrorism at Sea: Legal Aspects,” Int. J. Mar. & Coast. L. 18
Norwegian Shipping Security, 2003), 6. (2003), 365-366; Douglas Guilfoyle, Shipping Interdiction
3Natalie Klein, Maritime Security and the Law of the Sea and the Law of the Sea (Cambridge: Cambridge University
(New York: Oxford University Press, 2011), 11. Press, 2009), 45,46.
*
238
exceptionally viable and present day weapons and, utilization of weapons of mass annihilation (WMD)
because of incalculable profoundly productive focuses cause incredible weakness inside the general public.
on, a criminal demonstration changed over into a plan
of action which had a discernible negative effect on Oceanic Terrorism – A Real Threat
worldwide exchange and national economies 6 . Within
"Oceanic psychological warfare is fear mongering that
zones of national ward, it is the seaside express that has
happens adrift." 8 Traditionally, psychological
the expert to manage privateers under the arrangements
oppression is related with urban focuses and regions of
ce
of United Nations Convention on the Law of the Sea.
contention, however, the risks presented to ports and
However, all states are qualified for police measures
en
vessels can't be ignored. As of now, fear based
against privateer delivers on the high oceans under
oppressor assaults happening adrift present just 0,2-2%
articles 105 and 110 UNCLOS which incorporate
ud
of every brutal demonstration submitted by
boarding, reviewing, confining the vessel and capturing
psychological militants (inside the most recent 30
its team, as privateers are by and large considered as
pr
years)9. According to the Global Terrorism Database,
hostis humani generis. To stay away from mishandle of
314 occurrences of sea fear based oppression (as per the
ris
broad widespread locale, it is important to characterize
working definition connected in this examination)
theft in a brought together way. Piracy can likewise be
happened somewhere in the range of 1970 and 2014.
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recognized from furnished theft adrift, with the
But while breaking down these information, one needs
definitive factor being the geological area. A fierce
to shoulder as a main priority that occurrences of fear
&
assault including in excess of one ship and submitted for
mongering are regularly not detailed in light of the fact
private finishes yet directed inside the regional ocean or
that they are either not newsworthy or effective, but
aw
interior waters of a beach front State is depicted as
rather would at present reason higher expenses for the
outfitted burglary adrift. Those culprits are not thought
administrator because of postponements or raising
about privateers under worldwide law.
L
protection rates 10 . One reason that psychological
of
militants dominatingly assault earthly targets is that most
TERRORISM
fear monger associations are not situated in beach front
al
Terrorism , like robbery, is anything but another wonder territories viz. sea targets are for the most part distant.
however has gotten more noteworthy consideration Moreover, numerous gatherings don't have the required
rn
after the occasions of September 117. Global advent is sailor aptitudes and learning to approach portable
targets, with water crafts, fuel, and navigational
ou
produced by the structure of the fear based oppressor

gatherings and the idea of their exercises. Their free hardware being exorbitant. Also, the media
lJ
system structure makes the association helpless to fast consideration, which is fundamental for the
change which implies it adjusts rapidly and it is in this accomplishment of strike, is peripheral for brutality at
na
way eccentric to untouchables. They utilize a hostile and oceans contrasted and strikes on shore where news
damaging procedure while at the same time dismissing cameras are omnipresent - in any case, this perspective
io
any ethical estimations of the general public. Modern may not be pertinent for ports, voyage boats and
nt
psychological oppression is portrayed by the high territories near shore.

number of dead; mass losses because of the rising
er
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6 Nong Hong and Adolf Ng, “The International Legal 10 Global Terrorism Database at
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Instruments in Addressing Piracy and Maritime Terrorism: A https://www.start.umd.edu/gtd/search/Results.aspx?start_y

Critical Review,” Research in Transportation Economics 27 earonly=1970&end_yearonly=2014&start_y
Th
(2010), 53 ear=&start_month=&start_day=&end_year=&end_month
7 It exists at least since the Jacobin's reign of terror during =&end_day=&asmSelect0=&asmSelect1=&t
the French Revolution, 1793; Clive Walker, Terrorism and arget=11&criterion1=yes&criterion2=yes&criterion3=yes&
the Law (New York: Oxford University Press, 2011), 1.02 dtp2=all&success=yes&casualties_type=b &casualties_max
8 Martin Murphy, Small Boats, 185. (last visited 9th August 2016)
9 Martin Murphy, Contemporary Piracy, 45; Victor Asal and
Justin Hastings, “When Terrorism Goes to Sea," 722.
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239
In conclusion, psychological oppressors have all the certain that the term private closures was planned to bar
earmarks of being preservationist in the utilization of common war agitators from the importance.
techniques, implying that they utilize strategies that have Notwithstanding, following this, a limited translation
been utilized previously thus it turns out to be evident does not seem obligatory12. Some researchers advocate
that there are no persuading motivations to go to ocean. a broad understanding of private that incorporates "all
Nonetheless they do work adrift and the rundown of demonstrations of brutality that need state endorse"
past oceanic assaults is shockingly long. The inquiry at thinking that this position is requested to shield security
ce
that point being the reason fear mongers acknowledge of navigation. The contrary view engenders a tight
the named burdens. The way that psychological militant translation closing private finishes are a supplement to
en
associations in current society discard more prominent political closures. According to the last mentioned,
supports makes seafarer preparing and furthermore private closures incorporate individual intentions, for
ud
proper gear accessible to them. Additionally, they take example, contempt and retribution, burglary and the
expanding favorable circumstances of business offices, craving for monetary benefit yet it rejects circumstances
pr
for example, jumping schools. In the long run, some fear in which the performing artist is driven by political and
ris
based oppressor associations seek after an oceanic ideological motives. This refinement among private and
methodology while some others experience a move of political thought processes is additionally reflected in the
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needs from a high body check to financial impacts and techniques connected. Privateers more often than not
exchange interruption which produces new inspiration focus on the most defenseless and promising vessel and
&
for psychological militants to change their operational load up it keeping in mind the end goal to take objects
fields. of value yet attempt to evade fascination of open
aw
consideration since this reduces the business and makes
Delimitating Piracy & Armed Robbery at the danger of being convicted. This is against
Sea from Maritime Terrorism
L psychological militants who pick their objectives
deliberately with the goal of destructing a particular
of
As already illustrated, meanings of robbery and oceanic
target or upsetting the worldwide sea arrange for picking
fear based oppression vary considerably. In any case the
up however much global consideration as could
al
two wonders have periodically been viewed as one and

reasonably be expected so as to spread their political
the same or have been mixed up for each other11. The
rn
motivation. 51 The second distinctive element is the

way that there is some closeness between them isn't
two-vessel necessity which makes the principles of theft
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astounding; most strikingly both robbery and oceanic

inapplicable to oceanic fear mongering. To comprise a
psychological warfare establish an extensive risk to sea
demonstration of theft one ship needs to approach
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security as they are set apart by viciousness and the

another while a fear monger assault can be completed
variables that encourage them are indistinguishable.
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by a traveler, group part or stowaway as a demonstration

From a legitimate point of view, the two fundamental
of interior seizure. In lawful terms a relationship of the
conclusive criteria territory found in articles 101
io
theft guidelines to psychological oppression or an

UNCLOS and 15 HSC: demonstrations of robbery need
unduly stretch of the wording of article 101 UNCLOS
nt
to (1) include in excess of one vessel and (2) be

to incorporate fear based oppression is banished. That
submitted for private finishes. The correct significance
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end can withstand the periodically contended rising

of private finishes can't be gotten from the
nexus among robbery and fear based oppression, which
nt
arrangements itself. While thinking about the drafting

is a probability, though an impossible one, yet has not
history and the expectations of the Harvard Draft
yet materialized13. The line between the two sorts of sea
eI
Convention on Piracy (1932), the starting point of article

savagery is thin in down to earth terms.
101 UNCLOS and article15 HSC, it turns out to be
Th
11 Nong Hong and Adolf Ng, “Addressing Piracy and 13Victor Asal and Justin Hastings, “When Terrorism Goes
Maritime Terrorism," 51; Jason Power, “Maritime to Sea," 724. Eric Nelson, “Maritime Terrorism and Piracy,"
Terrorism," 119 23, 24; Peter Chalk, Maritime Dimensions of International
12 Douglas Guilfoyle, Shipping Interdiction, 32, 36 Security, 31.
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240
THE ROLE OF INTERNATIONAL of the oceanic security administration in meeting flow

ORGANIZATIONS dangers, and the advent of fear based oppressor act
ascended, there had all the earmarks of being an inferred
The United Nations Security Council understanding among the 160 part states to
acknowledge the exceedance to the formal order 16 .
Since the 1970s the worry of psychological warfare has
Also, the rehashed underwriting of crafted by the IMO
been available on the UN's motivation and still keeps on
by the UN General Assembly prompts contemplations
being14. Several Security Council goals have, since 2001,
ce
of the augmentation of the command to be
decided psychological oppression as a standout amongst
acknowledged under standard universal law.
en
the most genuine dangers to universal peace and
Remembering the particular idea of IMO, having the
security, and as per article 24 of the UN Charter, it is the
ability to manage security issues and the comparable
ud
Security Council that has the command to manage
destinations to those of the UN, this arrangement
dangers to worldwide peace and security. After this was
appears to be legitimate.
pr
set up, the Council embraced various individual goals,
some of them under Chapter VII of the UN Charter15. The United Nations Charter and the Use of Force
ris
Security Council goals are a viable method to deliver Because of the absence of a particular standards on fear
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dangers to sea security that are not completely directed mongering and specifically sea psychological oppression
by settlements and thus, help to enhance oceanic in the UN Charter, the general arrangements are
&
security through proactive measures. Notably, none of considered underneath.
these goals address the specifics of sea fear based
aw
oppression or, yet utilizing the term, expand the The Prohibition of the Threat and Use of Force
meaning of psychological warfare, leaving the
Article 2 (4) UN Charter, more or less: "There will be
L
translation to the individual state.
no brutality.", is the linchpin in keeping up universal
of
The International Maritime Organization peace and security, the basic roles of the UN17. As ius
cogens, article 2 (4) bans one-sided utilization of power
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Albeit oceanic security isn't specified here, it has been a in universal relations spare just in various cases recorded
rn
center point in crafted by the Organization that is in the Charter itself. Dealing with the sea region renders
usually deciphering wellbeing of transportation widely. article 301 UNCLOS appropriate which unambiguously
ou
In understanding with its Mission Paper, "To advance expresses that the disallowance of danger or utilization
protected, secure, naturally stable, effective and of power is relevant to the whole oceanic area. But
lJ
supportable sending through participation," is one of neither article 2 (4) UN Charter nor article 301
the Organization's primary concerns and oceanic UNCLOS are appropriate if the measures received are
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security as one of its many-sided responsibilities. only police authorization measures (supposed little scale
Considering that 90% of the universes exchange is proportions of self-protection)18 , or if the banner state
io
transported via ocean and that this transportation assented to third-state prohibition of its vessel.
nt
framework is genuinely debilitated by theft and fear

based oppression, it is hard to deny that wellbeing and The United Nations Security Council Measures
er
security in the sea territory require a comprehensive under Chapter VII

nt
treatment since they are firmly interwoven. After 2001

when the universal network understood the inadequacy
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14 6 See UN Security Council Counter Terrorism Committee: 16 Felicity Attard, “IMO's Contribution," 489; Rosalie Balkin,
http://www.un.org/en/sc/ctc/laws.html (last visited 9 th “The International Maritime Organization," 2, 16; Thomas
August 2016 A. Mensah, “International Maritime Organization (IMO),”
15 Christian Walter, “Terrorism,” in Max Planck in Max Planck Encyclopedia of Public International Law
Encyclopedia of Public International Law (New York: (New York: Oxford University Press, 2015), 22.
Oxford University Press, 2015), 66. 17 Article 1 UN Charter
18 Thomas Bruha, "Gewaltverbot," 398.
*
241
As per its command and article 39 of the UN Charter, structure 20 . But the procedure has stagnated when
the syndication to approve utilization of power rests endeavoring to clear up the topic as no assent on a
with the UN Security Council 19 . Before taking dynamic definition was achieved.121 The arrangements
requirement activities compliant with Chapter VII, the set up utilize diverse definitions and spotlight on a
Security Council needs to decide a risk to the peace, particular instrument connected or target went for,
rupture of the peace, or a demonstration of hostility. As instead of on the marvel itself. The device particular
a matter of fact, the assurance needs to defeat strategy (e.g. bombarding, prisoner taking, atomic
ce
vulnerabilities coming about because of the absence of material) or target-particular strategy (e.g. air ships,
any further clarifications of the terms. The subject of airplane terminals, seaward establishments, vessels)
en
regardless of whether the term of a risk or break of prompt a piecemeal approach. 122 Consequently, the
peace involves a between state component or can present administration can't accommodate general
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incorporate fear based oppressor assaults is coverage.123 However, there are three components that
exceptionally discussed. One could assume that the they have in like manner: first, the settlements require
pr
danger needs to spring from a state, since the Charter the foundation of purview and the criminalization of
ris
was expected to control security dangers presented by assaults; besides, a few traditions apply the aut dedere
states, basically in light of the fact that at the season of aut iudicare standard; 124 at last, multilateral
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end, just states were accepted to be able to force dangers collaboration is advanced. The fundamental objective of
to worldwide security. 85 International relations, as these concealment traditions is to guarantee that fear
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surrounded in article 2 (4) demonstrates the comparing based oppressors won't locate a place of refuge. This
goal of the drafters.86 must be accomplished through widespread
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endorsement and strict national execution. 125
The Right of Self-resistance
The 1982 United Nations Convention on the Law of
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Self-preservation under article 51 of the UN Charter is the Sea
of
auxiliary to the previously mentioned article UN
Charter. The intrinsic protective right is discharged if an The UNCLOS as a generally sanctioned tradition is the
al
equipped assault happens. This plan, once more, may key instrument directing oceanic issues. It sets out the
create veering understandings since the Charter does not essential standards material adrift, similarly as the rule of
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give a definition. Two perspectives are as of now under opportunity of the oceans, quiet employments of the
investigation: first, who is a legitimate aggressor and seas, flexibility of the oceans and restrictive banner state
ou
also, regardless of whether an inevitable assault rather purview on the high oceans. Waterfront states and
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than a real assault is adequate. banner states share the normal enthusiasm of killing
oceanic psychological warfare which is a risk to security
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The United Nations Conventions against of route courses, wellbeing of human life adrift, and
Terrorism major monetary interests. When the UNCLOS was
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arranged, sea fear mongering was not as noticeable and

So far, 16 hostiles to fear mongering traditions have
nt
earnest as it is today. Just the commandeering of the

been delivered by the UN and its particular offices,
Italian hailed journey transport Archille Lauro in 1985,
including four tending to the sea region particularly.
er
three years after the finish of UNCLOS, worked as a

Among these traditions, there is no single exhaustive
reminder. Express controls on psychological warfare are
nt
enemy of psychological oppression tradition. In 1996,

consequently missing, and it is to fall back on general
the UN General Assembly settled an Ad Hoc
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arrangements. Of specific significance in this setting is

Committee to build up a draft of a far reaching tradition
the rule that locale depends on registrations21. Exclusive
that would supplement the current legitimate
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19 Article 24 (1) UN Charter; Preamble of S/Res/2250 http://legal.un.org/committees/terrorism (last visited 9th

(2015); Natalie Klein, Maritime Security, 284. August 2016).
20 Ulrik Ahnfeldt-Mollerup, “The Universal Legal Regime 21 Article 91 and 92 (1) UNCLOS.
Against Terrorism," 95;
*
242
happens when women are forcefully detained, send for men who can easily be violated by men by committing
prostitution etc. sexual violence against them. Under Hague Convention
also crime of sexual violence is considered as an offence
INTERNATIONAL CONVENTIONS affecting “family honor”. These treaties have failed to
address the crime of sexual violence as a violent crime
I. International Humanitarian Law: -
that violates bodily integrity causes a huge mental
a. The Hague Convention:
trauma on the victim which is hard to overcome and the
In The Hague Convention the term sexual violence has
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same is not been recognized by these conventions.12
not been defined specifically. Nevertheless, article 46 if
Geneva Convention and Additional Protocol I refer
en
the convention 1907, can be interpreted to include some
some crimes as grave breaches in terms of Rome Statue
form of protection of women during war: “Family
of the ICC declares that state has an obligation to
ud
honor and rights, the lives of persons and private
conduct prosecution and impose a harsh punishment on
property, as well as religious practice, must be
the person committing these grave breaches. The
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respected.8
problem arises here where sexual violence is not
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b. The Geneva Conventions and Additional included under grave breaches explicitly it can be traced
Protocols: in other grave breaches such as inhuman treatment,
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After combining the four Geneva Convention there are torture, bodily injury and affecting their health.
429 Articles but only Article 27 of the fourth Geneva Therefore, crime of sexual violence has not been given
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Convention consist as explicit reference to sexual due recognition exclusively and they are not treated as a
violence against women during armed conflict. “Women serious offence which is creating severe impact on the
aw
shall be specially protected against any attack on their lives of women as it violates lot of human rights. One
honor, in particular against rape, enforced prostitution
L another major problem is that it is not regarded as a
and any indecent assault”. 9 Additional Protocols are matter of universal jurisdiction because they are not
regarded as a grave breach.13 If they are not included
of
mentioning about rape and other sexual violence not as
a crime of violent nature but as but offence upon within the perspective of universal jurisdiction those
crimes will be prosecuted within the national jurisdiction
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personal dignity.10
and in the context of sexual violence during armed
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Additional Protocol II also prohibits rape, forced conflict the crime are also committed by state this can
prostitution and indecent assault in article 76: “women create a situation where court can be biased and gives
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shall be an object of special respect and shall be Judgment in favor of the state.
protected in particular against rape, forced prostitution
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any other form of indecent sexual assault.11 Additional Protocol I to the Geneva Conventions (AP
I), of 1977, provides that “outrages upon personal
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One of the short coming in the provisions of Geneva dignity, in particular humiliating and degrading
Convention is that it mentions sexual violence as an treatment, enforced prostitution and any form of
io
offence against honor and dignity of women and honor indecent assault”, are “prohibited at any time and in any
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is something refer to as a respect given to women by

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8 Hague convention (IV) respecting always and customs of 11 Protocol Additional to the Geneva Convention of 1949,
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war on land and its Annex: regulations concerning the laws and relating to the protection of victim of non
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and customs of war on land, 1097. international armed conflict (Protocol II), 1977.
9 Geneva Convention relative to the protection of the civilian 12
United Nations Division for the advancement of women,
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persons in the time of war (fourth Geneva Convention), 1949. “sexual violence and armed conflict United Nations
10 Jarvis, Michelle and Martin, Elena “future challenges to Response” Women 2000 (1998).
13 Universal Jurisdiction “empowers a state to exercise
prosecuting sexual violence under international law: insights
jurisdiction over a crime committed abroad in violation of its
from the ICTY practice” in sexual violence as an international
own national laws”. Dugard, John, International Law: A
crime: interdisciplinary approaches De Brouwer ed. Antwerp: South African perspective. 4th ed. Cape Town: Juta Academic
Intersentia (2013) 102. (2013).
*
140
place whatsoever, whether committed by civilian or by international human rights and humanitarian law. All
military agents”.14 violations of this kind, including in particular, murder,
II Human Rights Law: - rape, sexual slavery and forced pregnancy, require a
particular effective response.19
a. Core Traditional Human Rights Instruments:
The core traditional human rights instruments are: - c. The Fourth World Conference on Women and
the Beijing Declaration and Platform for
 Universal Declaration of Human Rights: Article 5 of the
ce
Action:
UDHR which states: “no one will be tortured or to In the fourth world conference on women took place in
en
cruel, inhuman or degrading treatment or Beijing, China. In this conference they exclusively
punishment”.15 recognized sexual violence as a crime against women
ud
 International Covenant on Civil and Political Rights,1976: taking place during armed conflict. The outcome of the
incorporates Article 7 states that : “no one shall be conference was highlighted in the Beijing declaration of
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subject to torture or to cruel, inhuman or degrading action.
treatment or punishment”.16
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 American Convention on Human Rights: Article 5 of the “While entire communities suffer the consequences of
convention states that every person has a right to armed conflict and terrorism, women and girls are
Ju
have his physical, mental and moral integrity particularly affected because of their status in society
respected.17 and their sex. Parties to conflict often rape women with
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impunity, sometimes using systematic rape as a tactic of
war and terrorism. The impact of violence against
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b. The Vienna Conference on Human Rights and
the Vienna Declaration and Program for Action women and violation of the human rights of women in
(1993): such situations is experienced by women of all ages, who
L
According to UN Division for the advancement of suffer displacement, loss of home and property, loss or
of
women (1998) this was the foremost conference which involuntary disappearance of close relatives, poverty and
identified that violence against women is a violation of family separation and disintegration, and who are
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human rights though this conference it emerged that victims of acts of murder, terrorism, torture, involuntary
disappearance, sexual slavery, rape, sexual abuse and
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human rights of women are to be protected in all the

situations of armed conflict. 18 Earlier to this the forced pregnancy in situations of armed conflict,
especially as a result of policies of ethnic cleansing and
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violence committed against the women in any form was

considered to be a matter of private people thereby no other new and emerging forms of violence. This is
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interference from the government or any international compounded by the life-long social, economic and
institution. During this conference when human rights psychologically traumatic consequences of armed
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of women were duly recognized many civil society conflict and foreign occupation and alien domination.”20
actors such as NGO’s and Media were providing with
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This paragraph from the declaration clearly states that

the data of the ongoing sexual violence against women sexual violence is committed against women during
nt
in the conflict in different regions such as Yugoslavia. armed conflict but being a soft law is not duly followed
er
The most relevant provision for protecting the women or it is not legally binding.
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from the crime of sexual violence is Article 39: violation d. The Declaration on the Elimination of Violence
of the human rights of women in situation of armed against Women (1993).
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conflict is violations of the fundamental principles of

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14 AP I, Art. 75 (2) (b). 18 UN General Assembly, Declaration on the elimination of

15 UN General Assembly, UDHR, 1948. 217 A (III). violence against women, article 3.
16 UN General Assembly, ICCPR, 1966, United Nations, 19 Vienna Declaration and Program for Action, 12 July, 1993.
Treaty Series, Vol. 999, 171. 20 UN, Beijing Declaration and Platform for Action, adopted
17 Organization of American States, American Convention on at the fourth world conference on women, 27 October, 1995,
Human Rights, “Pact of San Jose ,” Costa Rica, 1969. Para 135.
*
141
A CASE COMMENTARY ON
CARPENTER V. UNITED STATES
AKANKSHA BADIKA & PRACHI TRIVEDI
ce
INTRODUCTION Ginsburg, Breyer, Sotomayor and Kagan. 5 The other
four judges, Justices Kennedy, Thomas, Alito, and
en
Though, the word ‘Privacy’ was never articulated in the Gorsuch each recorded separate contradicting views.
text of U.S. Constitution1, yet it has been the common
ud
law which has expanded the horizons to imbibe it in the HISTORICAL BACKGROUND
context with which the laws have been enacted. Much
pr
can be inferred from the Fourth Amendment to the U.S. The Stored Communications Act (SCA), is a piece of the
Electronic Communications Privacy Act (ECPA), which
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Constitution which reads as: "[t]he right of the people
to be secure in their persons, houses, papers, and effects, makes security assurances for the substance of put away
interchanges and information. Orders made under
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against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but Section 2703(d), can force the creation of the substance
of put away interchanges or related non-content data,
&
upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and when "particular and articulable facts demonstrate that
aw
the persons or things to be seized."2, the Supreme Court there are sensible grounds to trust that the substance of
has held that the Fourteenth Amendment to the U.S. a wire or electronic correspondence, or the records or
other data looked for, are significant and material to a
L
Constitution has provided a substantive due process to
the right of privacy. Several Supreme Court judges had continuous criminal examination." This standard of
of
first ruled on this subject in Griswold v. Connecticut3, where doubt is extensively lower than the reasonable
a married couple’s right to contraception being averse to justification required for an average warrant.
al
their right to privacy was recognised. With seismic shifts

Likewise pertinent to this choice are prior Supreme
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in technology, the court has shaped this right with

Court choices: In United States v. Miller6, the Court held
evolving regimes in the State.
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that a litigant had no privilege to security in his keeping

On Friday, June 22, the Supreme Court issued its bank records, as they were business records having a
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eagerly awaited judgement in the case of Carpenter v. place with the bank. In Smith v. Maryland7, the Court held
United States 4 , holding that a warrant is required for that police did not require a warrant to utilize a pen
na
police to get to cell site area data from a mobile phone register to screen a speculator’s active call information.
United States v. Miller and Smith v. Maryland are cases of
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organization—the exhaustive geo-location data

produced by a cell phone’s correspondence with cell the use of the third party doctrine—the lawful rule that
nt
towers. As anticipated, Chief Justice Roberts created the when an individual wilfully offers data to an outsider,
the security enthusiasm for that data is relinquished.
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greater part in the judgment, turning around the Sixth

Circuit's judgement. He was joined by Justices Since Carpenter included records gained from mobile
nt
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1 America’s Founding Documents, National Archives, available at, 5 S. McCubbin, Summary: The Supreme Court Rules in Carpenter v.
https://www.archives.gov/founding-docs, last seen on United States, Lawfare Blog, available at
Th
11/09/2018. https://www.lawfareblog.com/summary-supreme-court-
2 Fourth Amendment, Legal Information Institute, available at rules-carpenter-v-united-states, last seen on 12/09/2018.
https://www.law.cornell.edu/wex/fourth_amendment, last 6 United States v. Miller, 425 U. S. 435, 443 (1976, Supreme
seen on 11/09/2018. Court of the United States).

3 Griswold v. Connecticut, 381 U.S. 479 (1965, Supreme 7 Smith v. Maryland, 442 U. S. 735, (1979, Supreme Court of
Court of the United States) the United States).

4 Carpenter v. United States, 585 U. S. ____ (2018, Supreme
Court of the United States).
*
245
phone organizations, the outsider tenet was basic to the “CSLI for the target telephones at call origination and at
administration's contentions. call termination for incoming and outgoing calls.” Three
magistrate judges found out that the FBI had met the
In United States v. Jones 8 , the court tended to whether standards of suspicion required by the SCA, and thus
police utilization of a GPS beacon required a warrant. In had issued the request for 2703(d) orders.
spite of the fact that Justice Scalia's dominant part
judgement concentrated on the police arrangement of Two of the conspirators of the robbery, Timothy
ce
the gadget as a trespass, the possibility that the total of Carpenter and Timothy Sanders, were eventually
information after some time can make a substantially charged with aiding and abetting to the robbery
en
more point by point and security obtrusive picture is affecting interstate commerce and the use of carriage of
alluded to as "mosaic hypothesis." a firearm in violation of the Hobbs Act. During the trial,
ud
the FBI had explained that the CSLI by information
At issue for this situation was whether cell-site area data
acquired through orders had placed the two men’s
pr
(CSLI), could be gotten to by law authorization without
phone within a half-mile to two miles of each of such
a warrant. CSLI is created when a telephone speaks with
robberies. Carpenter and Sanders sought to suppress the
ris
a cell tower. Some of the time this information is created
CSLI evidence under the Fourth Amendment, but the
by a client's deliberate activities—by putting a telephone
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district court denied such a motion. Both were
call, sending an instant message, or turning the
convicted, and went in appeal.
telephone on. The more noteworthy the centralization
&
of cell towers is, the more exact the area information will
On appeal to the Sixth Circuit, Carpenter had challenged
be. Mobile phone organizations track CSLI for business
aw
the district court’s denial of his motion to suppress the
purposes, yet this data can be utilized to remake the
CSLI. Carpenter argued that the acquisition of CSLI
developments of a specific telephone over an extensive
L through a 2703(d) order was unconstitutional, because
stretch of time.
it was a search within the meaning of the Fourth
of
FACTS Amendment, and should have only been accessible with

a warrant based on probable cause. The Sixth
al
On April 2011, four men were arrested in connection Circuit rejected Carpenter’s arguments, relying on Smith
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with a string of armed robberies of Radio Shack and T- v. Maryland to hold that the data were business records,
Mobile stores. One of the men in the group confessed not protected by the Fourth Amendment. The case was
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that the group was responsible for the robberies, and appealed to the Supreme Court.10
that as many as 15 other men had participated in the
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crimes as getaway drivers and lookouts. He gave the FBI ISSUES

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his personal cell phone number and the phone numbers

of the others who had been involved in these robberies. 1. Whether “search” conducted by the law
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The FBI then used the man’s call logs to identify enforcement constituted an unreasonable search
within the connotation of 4th Amendment to the
nt
additional phone numbers he had contacted around the

time of the robberies. U.S. Constitution?
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2. Whether third party doctrine extends to acquisition

The FBI thus went forward with the 2703(d) orders to of information through Cell site location records
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produce the “transactional records” from 16 phone and acts as a deterrent to the conferring of 4th
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numbers, including the one of Carpenter. 9 The Amendment rights?

transactional records that were requested had included 3. Whether ‘reasonable expectation of privacy’
Th
various subscriber information, toll records, call detail extends to encompass within its scope the
records, and numbers that had been dialled, as well as acquisition of cell site records?
8United States v. Jones, 565 U. S. 400 (2012, Supreme Court 9 Supra 4.

of the United States). S Supra 4.
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246
4. Whether Government acquired cell site records ‘privacies of life’, also CSLI is more efficient, cost
pursuant to court’s order under the Stored effective and much easy to access as compared to other
Communications Act sufficient to undergo a information. At the click of a button, the Government
warrantless search not supported by probable can chronicle a person’s performance through a record
cause? of cell phone signals. Also, the justices delved deeper
into the technical aspects of CSLI to determine the
JUDGEMENT precision with which they operate, every time an activity
ce
is performed, it tells the location of target, hence
Carpenter v. United States had been a Certiorari to United contravenes Carpenter’s expectation of privacy and
en
States Court of appeals necessitating Government to negated his anticipation of privacy for 127 days. The
obtain warrants for acquiring CSLI of individuals. It is same can also be established with respect to issue 3; the
ud
pertinent to look at the majority opinion (5-4) and test was laid down in the case of Katz v. United States,12
thereafter, the dissent. the ‘reasonable expectation of privacy’ which the court
pr
applies to ascertain that continuous surveillance by the
Majority Opinion
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Government was an invasion of his privacy. With
Chief Justice, Roberts handed down the majority regards to issue 2, the court held that third party doctrine
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opinion of the case, beginning by quoting Camara v. does not find its application in this case, as the CSLI
Municipal Court of City and County of San Francisco 11 information is not truly shared, cell phones being a
&
interpreted the scope of Fourth Amendment rights to pervasive and insistent part of an individual’s life, it
act as a safeguard of privacy and security of individuals cannot be compared with the precedents, as the nature
aw
against arbitrary searches of the Government. With of information is entirely different from the ones
respect to issue 1, the court held that search conducted
L discussed before. Also, a cell phone logs a cell site record
by the Government was an unreasonable ‘search’ within by dint of operation without any affirmative act on part
of the user. In Jones, five judges held that pervasive GPS
of
the connotation of Fourth Amendment to the U.S.
Constitution, the existing precedents have never tracking for a longer term constitutes a search and to
which third party doctrine would not apply, a
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analysed CSLI which is very unique, hence application

of the same to the present case might reduce it to futility. diminished privacy interest does not mean Fourth
rn
In United States v. Jones, as mentioned, a GPS tracking Amendment falls out of picture entirely, the nature of
device in the vehicle impinges on the expectations of document plays a dominant role, even if CSLI are
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privacy as it captures every movement of an individual. business records created by wireless carriers, the seismic
In other set of circumstances, Smith v. Maryland the court shifts in technology not only track information of
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observed that no legitimate expectation of privacy exists Carpenter but others as well and are alert with an
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when the individual voluntarily shares it with others infallible memory, Government obtaining the
(third party doctrine). In United States v. Miller, the court information from a third party does not overcome
io
observed that third party doctrine is applicable in this Carpenter’s claim to Forth Amendment rights. With
respect to issue 4, the court held that acquisition of CSLI
nt
case as the documents searched were negotiable

instruments and ordinarily available to bank employees, required a search warrant supported by probable cause.
er
hence no search was conducted. However, the present The contention of the Government that it had acquired
case is different from the precedents as acquisition of cell site records pursuant to court’s order under the
nt
CSLI is unique and constitutes an encroachment upon Stored Communication Act, Sec. 2703(d), which is a
reasonable ground was relevant to an ongoing criminal
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individuals as it tracks physical location much precisely

as GPS devices and reveals everything about a person’s investigation, was untenable as it fell short of a probable
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familial, professional and sexual affiliations which are cause required for a warrant as the court required
‘quantum of individualised suspicion’ before a search or
11Camara v. Municipal Court of City and County of San 12Katz v. United Sates, 389 U. S. 347 (1967, Supreme Court
Francisco, 387 U. S. 523, 528 (1967, Supreme Court of the of the United States).
United States).
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247
seizure takes place. The court further held that if given protection. J. Alito dissented by explicating how this
a choice to proceed by subpoena, it will serve as a judgement threatens the two pillars of Fourth
categorical limitation on Fourth Amendment protection Amendment, first in establishing the difference between
and all letters and digital records would be reduced to a actual search and order, second being Carpenter raising
document which may be collected for no reason. The objection to search of third party’s property. He also
court also laid some exceptional situations to which the opined that subpoenas had been an ancient regime used
rule will not be applicable, namely some exigencies of by the grand juries; it is quite useful as it enables the
ce
situations like, pursuing a fleeing suspect, preventing individual to search himself rather than unrestricted
imminent destruction of evidence or some other urgent searches and seizures by Government. J. Gorsuch
en
situation, including warrantless searches for child dissented in light of the Katz judgement, asserting that
abduction, etc., but the court declined to grant such judgements might shake the confidence of people
ud
unrestricted access to wireless carriers’ database of on judiciary, also he quotes the judgement of Ex parte
physical location information. Jackson 14 , that CSLI are not his papers and these
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omissions are fully protected under Fourth Amendment
Dissent
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jurisprudence.
J. Kennedy’s dissent had mainly accentuated on the
ANALYSIS
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court’s departure from the existing precedents as
incorrect and unnecessary. The Government had More than 40 years back, the Supreme Court delineated
&
acquired information, after approval from a neutral what has come to be known as the "Third party
magistrate based on duty to show reasonable necessity, doctrine” – the possibility that the Fourth Amendment
which is also a statutory requirement. Another argument
raised was regarding the non-possession and control of
data by the customers which exempts them from any
L aw
does not secure records or data that somebody
deliberately shares with somebody or something
different. Presently the Supreme Court decided that, in
of
reasonable expectation of privacy on disclosure spite of this tenet, police will for most part need to get a
pursuant to lawful compulsory process. Moreover, the warrant to get cell-site area data, a record of the cell
al
CSLI gives the general location of users and is towers (or different locales) with which a cell phone is
comparatively imprecise from GPS system. With associated. In a view by Chief Justice John Roberts, the
rn
regards to issue 1, he laid the two essentials to determine five-justice majority indicated that "seismic moves in
a search: (a) defendant’s attenuated interest in property
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advanced innovation," which have enabled remote

owned by another, (b) safeguards inherent in use of bearers to gather "profoundly uncovering" data about
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compulsory process. He further asserted that subpoena cell phone proprietors that ought to be secured by the
was limited in scope, relevant in purpose and specific in Constitution.
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directive. If this be the future, it can have complex

effects on criminal investigations as it would become The issue went to the Supreme Court on account of
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easier to coordinate and conceal. Timothy Carpenter, who was indicted and condemned
nt
to right around 116 years in jail for his part in a

J. Thomas’ dissent revolved around the criticism of the progression of furnished burglaries in Ohio and
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Katz case to the present scenario, prior to which Michigan. Law-implementation authorities utilized cell-
Olmstead v. United States13 was decided concluding that site records from his cell phone supplier to put him in
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privacy does not include within its ambit electronic the region of the violations, yet Carpenter contended
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surveillance for availing Fourth Amendment rights, the that the jury ought not to find out about those records
Katz case overruled the same. He asserted that Katz on the grounds that the administration had not acquired
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departs from the Fourth Amendment, as it fails to a warrant for them. An elected interest’s court
identify which principles of privacy are entitled to maintained his conviction, clarifying that the legislature
Olmstead v. United States, 277 U. S. 438 (1928, Supreme

13 Ex parte Jackson, 96 U. S. 727 (1878, Supreme Court of the
14
Court of the United States). United States).
*
248
In December 1993, General Assembly adopted this violence are cases of torture this convention is referred
declaration that recognizes three main categories of when it comes to sexual violence.
violence against women: physical, sexual and
psychological violence taking place in the family, in the CASE STUDY OF FEW COUNTRIES
community and attempted and committed by the state.21
I. Myanmar:
In its preamble in it exclusively mentioned that women
“All of my body was in pain” as said by one woman and
especially are vulnerable to violence. 22 Overall the
experienced by thousands of women during Rohingya
ce
declaration is quite rigid in criticizing sexual violence in
refugee crises happened recently in Myanmar. It was
all its forms in all the articles including a list of human
en
during 2017 when Myanmar military forces and
rights that are violated as a result of sexual violence or
Buddhist extremist attacked the Rohingya community
any other violence commenced against her. The only
ud
occupying the northern Rakshine state in Myanmar.
drawback is it is not binding. The articles of declaration
They were tortured by several means like looting the
are applicable in both the situation of peace time and
pr
entire village leaving them with no source of survival;
armed conflict as it can be inferred from the preamble
mass killing of the population, gang rapes sexual
ris
stating the vulnerability of women during war times.
violence and lot of women were abducted in front of
e. The Convention against Torture, (1986): their family for sexual slavery. They burned down the
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According to Amnesty International (2000), acts of entire village wanting to eradicate the Rohingya
sexual violence committed by the government officials community completely. The crime of sexual violence
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are a common technique of torture against women.23 If against Rohingya women can be called as invisible crime
because it was unreported owing to far fledge
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the crime of sexual violence is committed by a public
official he is ultimately causing a threat, pain to her body discrimination, fear of discarding from the community,
and the act leaves the women in huge mental trauma. fear of spending hefty amounts on health which they
L
Article 1 on the convention defines torture “act by knew they could not afford and lack of confidence on
of
which severe pain or suffering, whether physical or police force and judicial system. The actual figures have
mental, is intentionally inflicted on a person for such not been traced as of now but those women who were
al
purposes as obtaining from him or a third person interviewed reflect that it was used as a major tool to
terrorize the community and humiliate them as
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information or a confession, punishing him for an act

he or a third person has committed or is suspected of unproductive in protecting the women of their
ou
having committed, or intimidating or coercing him or a community due to which it was committed on a large
third person, or for any reason based on discrimination scale.
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of any kind, when such pain or suffering is inflicted by

When operations were launched in 2016 in response to
or at the instigation of or with the consent or
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crime being committed on a higher rate one them being

acquiescence of a public official or other person acting
sexual violence led to people fleeing to Bangladesh to
in an official capacity”24.
io
take asylum. On one side the Myanmar military forces

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Sexual violence is not exclusively mentioned in the were torturing people to led them flee but on other side
Convention. But lot of similarities between the term when the people actually starting fleeing again they were
er
torture and sexual violence which has been laid down by subject to torture. Upon receiving the information from
judges in deciding a case that most of the acts of sexual the women and girls ONHRC came up with the report
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in 2017 that about 100 women were sexual assaulted by

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the smugglers, traffickers etc. Even if they reach safely

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21 UN, General Assembly, Declaration on the Elimination of 24UN General Assembly, Convention Against Torture and
violence against Women, 20 December 1993. Other Cruel , Inhuman Treatment or degrading Treatment
22 Ibid. or punishment, 10 December, 1984.
23 Callamard, Agnes, Monitoring and Investigating sexual
violence, Amnesty International and Codesria Amnesty

International, (2000).
*
142
1996 report, the United Nations Special Rapporteur on from the community out of shame and humiliation
Rwanda, Rene Degni Segui, found that: - imposed rigorously on them they tend to commit suicide
“Rape was the rule and its absence the exception according to the rather than face the shame and ostracism they
statistics, one hundred cases of rape gives rise to one pregnancy. If anticipated upon their return.170 In some societies,
this principle is applied to the lowest figure the numbers of parents may send their daughters away from home, or
pregnancies caused by rape are estimated to be between 2,000- marry them at an early age, in an attempt to protect them
5,000, it gives at least 250,000 cases of rape and the highest figure from sexual violence.
ce
would give 500,000, although this figure also seems excessive.
However, the important aspect is not so much the number as the III. Right to Life:
en
principle and the types of rape.”27 Women were more vulnerable to be kept in detention
than men. During Rwanda genocide lot of women were
ud
At the time of genocide there was no functioning of kept in captivity by military armed groups for serving
judicial system for perpetrators kept in prison and them with sexual services. Amnesty International has
pr
victims there was no hope of justice being delivered documented the use of rape, acts of sexual humiliation,
moreover police officials who were documenting the and threats of harm to women's reproductive systems as
ris
genocide crimes for prosecution were male and not methods of torture in detention centers throughout the
collecting information on rape. world.28
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HUMAN RIGHTS BEING VIOLATED RECOMMENDATIONS
&
DURING ARMED CONFLICT
There is a strong need for better implementation and
aw
I. Right to Health: prosecution. The international conventions treaties and
During armed conflict the reproductive role of women several other resolutions should be implemented at the
L
is targeted first to attack the community which leads to national level otherwise sexual violence prohibited
of
pregnancy and illegal abortions there is no medical under these conventions remains dead letters. This
facility granted to women while she is pregnant most of means when any domestic law is formulated it should
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the women dies out of malnutrition because of lack of strictly prohibit sexual violence and also comply with
supply of food and sanitary provisions. Sexual violence international convention in criminalizing sexual
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also threatens their lives by affecting their health violence. Once implemented it should be supported by
through sexually transmitted diseases like HIV/ AIDS vigorous state institutions such as military forces, police
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many women who were raped in Rwanda were tested officers and other security forces. For their support to
positive for HIV. Most of the time medical resource be productive and qualitative they have to be provided
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available is insufficient to meet the need of woman with efficient training programs one’s they are trained
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subjected to sexual violence. In Rwanda only five they will be able to identify when it happens and to
gynecologists available to assist women their capacity to protect the population from such crimes by non-state
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assist women to deal with problems arising from sexual actors.

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violence is limited.
Sexual violence is committed against women during
er
II. Right to live with Dignity: armed conflict and also when there is peacetime the
When women are subjected to sexual violence they are similar mistreatment is faced by the women when the
nt
not accepted by their families many husbands give war gets over. When the war gets over still in lot of
divorce to their wives and they were totally abandon
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Th
27United Nations, Report on the Situation of Human Rights 28

Judith G. Gardam Michelle J. Jarvis, “Women, Armed
in Rwanda submitted by Mr. Rene Degni Segui, Special Conflict and International Law”, Kluwer Law International.
Rapporteur of the Commission on Human Rights, under
paragraph 20 of the resolution S-3/1 of 25 May 1994,
E/CNA/1996/68, January 29, 1996, p. 7.
*
144
countries discriminatory laws are formulated that Economic assistance and psychological assistance has to
continues to practice customary practice that interferes be provided they are rejected by their families and their
with women sexual autonomy. They are not served communities. Moreover, they are not much educated to
equally with granting of rights in property and decision earn their own living they are solely dependent on their
making process in the family. Government takes all such husband and family.
measures to protect human rights at the same time needs
to revise customary laws and practices that is an obstacle CONCLUSION
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to free and equal treatment to women.
Throughout the world, sexual violence is routinely
en
directed against females during situations of armed
UDHR, ICCPR AND ECHR are the core human rights
conflict. This violence may take gender-specific forms,
instruments and include provisions that prohibit offence
ud
like sexual mutilation, forced pregnancy, rape or sexual
against physical Integrity in general terms. These
slavery. Being female is a risk factor; women and girls
conventions have not included explicitly sexual violence
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are often targeted for sexual abuse on the basis of their
as a crime “right to be free from gender violence has not
gender, irrespective of their age, ethnicity or political
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been recognized as a fundamental human right.” Apart
affiliation. Rape in conflict is also used as a weapon to
from this the Geneva Convention has mentioned some
terrorize and degrade a particular community and to
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offence as grave breaches but sexual violence has not
achieve a specific political end. In these situations,
been included under this term. In all most all convention
gender intersects with other aspects of a woman's
&
sexual violence is understood as a torture it is linked and
identity such as ethnicity, religion, social class or political
defined the crime with torture and not explicitly.
affiliation. The humiliation, pain and terror inflicted by
International convention has to specifically provide a
right to live with dignity as a human right without any
L aw
the rapist are meant to degrade not just the individual
woman but also to strip the humanity from the larger
group of which she is a part. In the aftermath of such
form of sexual violence. They should explicitly engage
of
abuse, the harm done to the individual woman is often
in dealing with sexual violence against women in armed
obscured or even compounded by the perceived harm
conflict and to categorically penalize gender based
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to the community. In almost every country the pattern

violence as a crime, and strictly prohibiting sexual
of commission of sexual violence is same the grievance
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violence and all other types of against women.

and violation of human rights for a woman does not
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vary much.
Women against whom sexual violence is committed are
.
already under grave depression as there is lot of
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humiliation from the society and it gets retraumatises

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when they seek justice because when investigation is

conducted by the police officials who are predominantly
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male so the entire process humiliates as women are not

every comfortable in opening up their grievance and
nt
there is lack of security and confidentiality at the same

er
time so reparation becomes difficult hence females

should be employed when it comes to understanding the
nt
problems faced by women. This way they can collect

more data from the women.
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Women first seeks assistance from health centers this

makes the role of these health institutions to address the
issue at first All the medical ethics have to be maintained
along with confidentiality among them.
*
145
COMPENSATION FOR THE

UNDUE PRE-TRIAL DETENTION
ce
en
CHHAYA K.
ud
INTRODUCTION observed by the Supreme Court on a note given by
pr
amicus curiae, that Indian prisons are overcrowded
In any system of law, the role of the state in beyond 150% beyond the capacity, thereby causing
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administering criminal justice is very vital. Crime is a human rights violation4.Overcrowding of inmates has
violation of the legally established order, the become a health and sanitary issue because the jails hold
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punishment for such transgression of law is imposed by increasingly larger number of prisoners than their rated
the state.1One of the objectives of imposing punishment capacities5.The overcrowding of prisons can be reduced
&
is retribution, which is in a belief that the criminal should by providing a speedy trial to the accused persons. Right
aw
suffer for the offence committed. Imprisonment is an to speedy trial has been guaranteed as an integral part of
important form of punishment. The punishment of the article 21 of the constitution. In reality the under
imprisonment necessarily deprives the liberty of the trials are denied this very right, for various
L
person for certain period. 2 A criminal justice system administrative reasons or delay by the person accused.
of
begins with the detection of crime , proceeds through However, the constitution mandates this as a guaranteed
investigation, arrest, initial appearance before the court, right to speedy trial.
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charging, trail, sentencing and finally discharging the

The Right to speedy trial:
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case 3 .After the initial appearance is made before the

court of law following the arrest by the police officer
The detention of the prisoner should be in accordance
ou
based on the complaint received , further the person is

with the procedure prescribed. The procedure
subject to remand until the trial. This is also known as
prescribed by the law has to be just , fair and reasonable
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pretrial detention. The main reason for detention is on

as laid down in Maneka Gandhi v. Union of India 6 .The
the assumption to prevent further commission of any
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concept of fair procedure includes a reasonably speedy

offence by the accused.
trial.7The main purpose of speedy trial is intended to
io
This pretrial detention period extends up to the prevent delay and ensure that there is no oppression of
the accused person. It is the sacrosanct obligation of all
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commencement of the trial, process of the trial and the

verdict of the court on the offence charged. Detention concerned with the justice dispensation system to see
er
which extends through out this process is one of the that the administration of the criminal justice system
becomes effective, meaningful and vibrant8The delay in
nt
main reasons for overcrowding of the prisons. It was

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1 Dr. C.RAJASHEKAR, HUMANIZATION OF PRISONS 5 DAVID C , MARY,KEVIN I.MINOR,RICK

IN INDIA, 6 (1 st ed. 2015) RUDEL,RETSY A.MATHEWS, CORRECTIONS AND
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2 GOLD STEIN, ABRAHAM, JOSEPH, CRIME LAW THE CRIMINAL JUSTICE SYSYTEM, 419(1st ed. 2008)
AND SOCIETY , New york ,the free press, 291 of 1971 6 Maneka Gandhi v. Union of India AIR 1978 SC 597
3 LAWRENCE,TRAVIS,BRADLEY D 7 Dr C. RAJASHEKAR,HUMAINZATION OF PRISONS
,INTRODUCTION TO CRIMINAL JUSTICE,(8th ed, IN INDIA(1st ed.2015)

2014) 8 Volume 5 ,Durga das Basu, commentary on constitution of
4 https://www.thehindu.com/news/national/overcrowded- India, page 4843(9th ed. 1991)
prison-involves-violation-of-human-rights-says-worried-
supreme-court/article23871465.ece
*
252
the conclusion of the trial is said to have a direct nexus 21 of the constitution12. The first case in India which
with the disregard of the society and agony of the discussed the concept of Right to speedy trial was:
person. For these reasons promoting and protecting the
right to speedy trial is very essential. The Right to speedy Hussainara Khatoon & Ors vs Home Secretary,
trial is enshrined in national and international laws. The State Of Bihar13. In this case a PIL was filed which
early origins of the right to speedy trial can be traced to brought to the court’s notice the shocking state of
The Magna Carta 1215 which states as "we will sell to number of prisons in the State of Bihar. A number of
ce
no man, we will not deny or defer to any man either under trials were kept in the prison without a charged or
justice or right 9 . This is one of the most important trial. Many were charged for trivial offences and they
en
principle derived in many constitutions. were detained for a period more that the punishment
prescribed for the offence which they committed. The
ud
THE CONSTITUTION OF THE U.S.A court considering that every detainee has a guaranteed
right o speedy trial held as follows;
pr
In the U.S. constitution the 6th amendment has
stipulated the concept of Speedy trial, which states as  The state has an obligation to provide speedy trial
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“In all criminal prosecutions, the accused shall enjoy a to the accused persons. The said right cannot be
right to speedy and public trial. This trial is to be denied by the state on the grounds of administrative
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conducted by an impartial jury 10 . The U.S. Supreme and financial inability.
court in a famous case held that the guarantee of due  It is also the constitutional obligation of this Court,
&
process requires the trial of the accused, who is as the guardian of the fundamental rights of the
presumed to be innocent, should be as speedy as the people to enforce the fundamental right of the
circumstances permit, otherwise the trial cannot be said
to be fair. The right to a speedy trial is a fundamental
right and is applicable to the states via the fourteenth
L aw accused to speedy trial
In R.S. Antulay v. R.S Nayak 14 The Supreme court

of
amendment due process clause. 11 The framers of the expanded the ambit of right to speedy trial. It was held
constitution of America considering Magna Carta has that whenever there was an inordinate delay or where
al
derived the Right to speedy trial in order to enshrined in the proceedings were pending for too long and any
its constitution to ensure fair and speedy trial to the further proceeding was deemed to be oppressive and
rn
accused. unwarranted. It was also emphasized that right to speedy

trial following from Article 21 encompasses all the
ou
Position In India: stages, namely the stage of investigation, inquiry, trial

appeal, remission and retrial.
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Speedy trial has been recognized as an inherent and

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implicit part of the article 21 of the constitution. The The Pre-trial Detention:
constitution of India does not provide a provision
India has the largest number of under trials languishing
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explicitly the right to speedy trial. However, the supreme

court in its various judgements have stated that the right in the prisons. In 2015 according to the report of the
nt
to speedy trial is a fundamental right implicit of article National Crime Records Bureau,2016 15 the under trial
population in Indian prisons was 67%16.The conditions
er
in the prisons are such that, many of these accused are

nt
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9 Klopfer v. North Carolina, 386 U.S. 213, 223 (1967), 14 R.S. Antulay v. R.S Nayak AIR 1992 SC 1701
10 Overview of Criminal Justice System, p.138, available at 15 Ministry of a Home affairs, National crime investigation
Th
http://www.lexis.eom/lawschool/study/texts/pdf/Criminal Bureau 2016, statistics of crime

ProcedureThePostlnvestigativeProcess 16 Amnesty International , Justice under Trial :Study of pre
11 Supra at note 10 trial detention in India , available at
12 Kandra v. State of Bihar AIR 1981 SC 939, Manshukla vital https://www.amnesty.nl/content/uploads/2017/07/UT_Fi
das chauhan v. state of GujratAIR 1997 SC 3400 nal.pdf?x62907
13 Hussainara Khatoon & Ors vs Home Secretary, State Of
Bihar 1979 SCR (3) 532
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253
follow any religion and perform its duties and practices. apprehended that their personal laws might get
Under this article, Indians have the right to follow the dissolved. They were against the issues like legislature
personal laws as per their community and religion. imposing restriction, amendments over their personal
However, the personal laws are being practiced since the law or separating secular activities from religion and
period of British Raj. Charter of 1753 exempted the excessive uniformity in law since India had already
Indians to follow their own laws for civil matters, i.e., achieved that over a vast area. 6 Their demands of
British reserved the laws of Quran for Muslims and that personal laws were accepted because the Mohammedan
ce
of Shastras for Hindus. These provisions were further Law was claimed to be adopted from Quran itself and it
revised under the Cornwallis Code of 1793. That was would have been extremely inappropriate to get rid of it
en
the time when the governing organization used such despite of providing the fundamental right of freedom
provisions of different rules and regulations to divide of religion, however, it has been observed in all these
ud
the Indian society on grounds of castes and religions and years that there are various dissimilarities between
insert obstructions in the path of India’s unity. Mohammedan Law which has been practiced in India
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and Sharia or the actual Islamic Law.
With regard to these provisions, majority of Indians
ris
were divided into two sections following Hindu Law On the other hand, Right to Equality suggests that every
and Mohammedan Law respectively for civil cases. Soon individual is equal in the eyes of law and thus every
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after enforcing the constitution in 1950, Hindu Law was individual must be treated equally. However, the equal
secularised and was divided into four pieces after the treatment is provided under the criminal law of the
&
legislation passed Hindu Marriage Act (1955), Hindu country but the laws relating to judicial separation,
aw
Succession Act (1956), Hindu Minority and divorce and nullity of marriage is not uniform. On one
Guardianship Act (1956) and Hindu Adoptions and side, Indians, other than Muslims, need to seek
Maintenance Act (1956) but Mohammedan Law was permission from a court to seek divorce from the spouse
L
never secularised or codified. and then has to fulfil the orders of maintenance.
of
Whereas Muslim men could seek divorce at any instant
Due to the provisions of both Right to Equality and they like. Bigamy or polygamy is a crime in India for
al
Right to Freedom of Religion as Fundamental Rights, non-Muslim men, whereas Muslim men are allowed to
there has occurred a stage of conflicting opinions as per
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have two wives at a single time. In the case of Mohd.

law with respect to the enforcement of Article 44. Ahmad Khan v. Shah Bano Begum 7, the Supreme
ou
Court of India has ruled that a Muslim husband is liable

Confusion as to the Legality of Uniform Civil Code to pay maintenance to the divorced wife beyond the
in India
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iddat period. For this, the court has pointed out that a
common civil code will help the cause of national
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Right to Freedom of Religion suggests that every

integration. However, instead of framing a Uniform
individual has the right to follow any religion. He has
Civil Code, the Parliament passed the Muslim Women
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the right to practice, perform and propagate any religion

(Protection of Rights on Divorce) Act, 1986. To fight
and manage its affairs. Personal Laws in modern India
nt
against this, it was contended before the Constitution

hail its existence to these rights only and they are
Bench of Supreme Court in the case of Danial Latifi v.
er
considered as a critical element of religious affairs that

cannot be disturbed. However, the conditions have
Union of India8, that the provisions of this Act of 1986
nt
has deprived the divorced women of such a right of

changed in most of the religions but the Mohammedan
maintenance from her husband and provided for the
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Law has remained the same because of the rigidity of its

maintenance to be paid by the former husband only for
community. This rigid characteristic of the Muslim
the period of iddat and thereafter to make her run to her
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community was first witnessed during the discussion in

relatives or seek help from the Wakf Board was against
the Constituent Assembly when the Muslim members
the principles of equality since the laws for women of
6 VII CAD 540-2 8 (2001) 7 SCC 740

7 AIR 1985 SC 945
*
147
In order to check if the delay has resulted in the violation are such that the delay is inevitable. The delay caused are
of the right to speedy trial, the American Supreme court majorly due to reasons such as, large number of cases,
has held that the following factors should be weighed25 non-availability of the required infrastructure to
produce the accused to the court, non-availability of
 Length of the delay witnesses etc. most of this delay is as a result of
 Reasons for the delay administrative noncompliance.
 Assertion of the guarantee by the accused
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In spite of the delay caused and the rights of the accused
 Prejudice to the defendant
being infringed there is no way in which these accused
en
In India while determining whether there is undue delay are compensated for the losses that they have suffered
has occurred resulting in the violation of the right to during the period of detention. The court rather than
ud
speedy trial, the court considers all the attendant compensating the accused in many cases as denied
circumstances, nature of accused, availability of the compensation for the accused. One such instance is the
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witnesses , the workload of the court and other Akshardham case wherein the Supreme Court rejected
prevailing work conditions 26 . In the federal courts, the plea of the six members acquitted in a terror attack
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demand doctrine 27 is applied in cases of delay, if the case who had been confined in prison for long period31.
accused does not demand for the trial within a In India currently there is no legal provision or scheme
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reasonable time, the accused is said to have waived his for compensating the accused in case of wrongful
right to speedy trial. However in India, the Supreme detention and compensating for the denial of right to
&
Court has refused to accept the demand doctrine28. The speedy trial.
aw
main reasoning behind the refusal was that an accused
Compensation for the undue delay in the trial:
cannot try himself, he is tried by the court. Hence an
accused’s plea of the denial of speedy trial cannot be
L
The court has in certain cases granted compensation for
defeating stating that the accused did not demand for it. the wrongful detention. In Rudul Shah V. State of Bihar 32
of
The accused’s right to speedy trial cannot be waived off wherein the accused was detained in jail for more than
at any circumstances. Any procedure established by law 14 years after the release order by the court, the accused
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has to just fair and reasonable. The procedure which was compensated for the unlawful detention. The
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provides for undue delay thereby infringing the rights of Supreme court compensated the accused for wrongful
the accused cannot be said to be fair. The court has detention on the grounds that it violated the
ou
declared that after the Dynamic interpretation of Article fundamental rights of the accused33. The court in these
21 in Maneka Gandhi v. Union of India 29 The court has cases compensated the accused for the violation of the
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declared that any procedure that keeps large number of Fundamental rights. However, the court in the
people behind bars without trial so long cannot possibly
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Akshardham Case refused the compensation for the

be regarded has “reasonable, just and fair” so has to be accused Though there was clear infringement of the
io
in conformity with Article21. It is necessary that the law fundamental rights of the accused.
enacted by the legislature and as administered by the
nt
courts must radically change its approach to pre-trial Need for compensation:
detention and ensure fair procedure as enunciated after
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the Maneka Gandhi case; 30 Inspite of the courts In India currently there is no scheme or legal provision
nt
emphasizing on administration of fair procedure and for compensating the accused for compensating the
protection of the rights of the accused, the conditions accused for undue delay thereby causing the
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fundamental right violation. There is a need to enact a

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25 Baker v. Wingo,(1972) 407 US 514 30 Supra note 13

26 M.P.JAIN, INDIAN CONSTITUTIONAL LAW 1135( 31 https://indianexpress.com/article/india/india-news-
7th ed. 2016) india/akshardham-terror-attack-case-sc-refuses-
27 Bruce v. US compensation-plea-of-acquitted-persons-2895251/
28 Supra note 27 32 Rudul Shah v. State of Bihar AIR 1983 SC 1086
29 Supra note 6 33 Dolat Khan v. State of Haryana 1995 SCC (1) 349
*
255
scheme for compensation in such cases. Liberty is the compensation for the accused for wrongful
most essential aspect of Rule of Law, which is one of incarceration. The court issued directions for the
the facets of the Constitution. The undue delay caused government to enact provisions in order to compensate
in the commencement of trial strikes on the liberty of the wrongfully detained persons. The amount of under
the individual. There can be compensation schemes for trials in the prisons are shockingly increasing.
two kinds of category that is for the; Considering the fact that it is not possible for the judicial
system to fix a period for the conclusion of the trial and
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 Acquitted persons: avoid delay in each and every case, the least that the
judiciary and the state can do to protect the interests and
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In case of persons who are acquitted by the court of
the rights of the accused is to compensate for the
Law, it is essential that the court compensates for the
violation of their right to speedy trial. It is the obligation
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detention of the accused wrongfully, due to which the
of the state to ensure that no restriction on the liberty of
accused is detained in the jail for a long period for a
any individual is imposed unreasonably and to provide
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crime he never committed. This kind of detention
for a speedy trail.
causes immense loss for the individual who is also
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subjected to physical and mental trauma. The
compensation for the Acquitted person subject to
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undue delay can be in the monetary form and
rehabilitation for the victims of wrongful detention.
&
 Convicted persons:
The convicted persons who are proven guilty in the

court of Law, if subjected to unreasonable delay during
L aw
and prior to the trial should be compensated by the
of
means of reduction of the sentence for the fundamental

rights violation cause. Article 78(2) of the International
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criminal court statute lays down that the court while

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pronouncing the sentence, might reduce the sentence

considering the period of detention, which the person
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was already subject. In the same manner there is a need

for the Indian Judiciary to consider the period of
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detention that the accused was already subject to while

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pronouncing the sentence.

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CONCLUSION
nt
As once famously said “Justice delayed is justice

denied”. The delay caused for the commencement of
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trial ultimately hampers the delivery of the Justice. The

nt
loss suffered by an individual cannot be regained in what

so ever ways. However, the individual can be
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compensated for the undue delay the person was subject

to. In the case of Babloo Chauhan @ Dabloo v. State Govt.
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Of Nct of Delhi the Delhi High court observed that the

wrongful incarceration of persons has become a serious
issue and has been witnessed frequently. The court felt
a need for a new provision or a scheme to provide
*
256
THE VICIOUS CYCLE: AGRARIAN CRISIS INDIA

IS THERE A SOLUTION?
JEFFERSON CHRISTIAN OSMOND FRANCIS
ce
INTRODUCTION produce can be profitable, a major reason for this is the
en
lack of education that a farmer possess about his
The agricultural sector of our country employees half of profession. In selected villages in India, the government
ud
our nations citizens, however this is not an adequate holds educational camps in order to educate farmers
reason for our government to stop its decline. After the about the usage of the High Yield Seeds and how it must
pr
shift of production from food crops to cash crops, the be harvested. However, these programs are not
prices of the required produce required by a farmer to successful as the farmers are not aware of these
ris
grow his crop has increased. Many farmers in India fail programs in the first place as a result of lack of
to have access to good quality seed, fertilizers or enthusiasm on the part of the officials in charge.
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pesticides due to greedy and corrupt officials who
charge exorbitant prices, even though the farmers have Agriculture (including allied activities) accounted for
&
subsidies. However, through the thick and thin farmers only 18 per cent of the Gross Domestic Product (GDP-
aw
manage to grow their crops, but, due to the lack of at constant prices) in 2007-08 (Economic Survey 2008-
proper storage facilities they lose some of their harvest. 09), but it is a source of income and employment for
Further, their hard work bears no fruit as a result of more than two-thirds of the nation’s population. The
L
being cheated by the middlemen who sell their crop to role of agricultural sector remains critical as it accounts
of
the public, giving them a less than deserving cut. This is for about 52 per cent of the employment in the country,
the issue prima facie in each state of the country, apart from being the provider of food for the people,
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however there are more reasons for the failure in the fodder for livestock and raw materials to industries. In
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agricultural sector and various other consequences. A fact, agricultural sector contributed 12.2 per cent of
more recent and unspoken reason for crop failure is the national exports in 2007-08 (Economic Survey 2008-
ou
growing phenomenon of climate change. India is already 09).

experiencing a warming climate, Unusual and
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unprecedented spells of hot weather are expected to Based on the fact that the relative contribution of
occur far more frequently and cover much larger areas. agriculture to the GDP has been declining over time, it
na
Under 4 degrees Celsius warming, the west coast and could be stated that this sector has lost its importance as
southern India are projected to shift to new, high the backbone of Indian Economy. Agriculture is now
io
temperature climatic regimes with significant impacts on being seen by many as a sector of "cows and poultry",
nt
agriculture. With these future issues the Centre must and the crop husbandry as a dismal area. In general, the
take into consideration that if these issues are not poor performance of agricultural production and food
er
rectified our country’s agriculturally dependent section production is not a healthy sign for the economy. The
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of the society will eventually perish. recent trends in the agricultural sector of India need to
be looked at in the context of globalization process and
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28 days, 115 hours and Rs. 20,01,00,000/minute. This is its impact on Indian economy.
amount of time and expenditure the Indian Parliament
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has borne on discussion of "important issues" since It did not take the current round of farmers’ agitations
2014, under the category of agrarian crisis. The issues to drive home the idea that India’s agrarian sector is
include the plight of farmers, rising suicide rate, the under stress. Low growth, poor earnings and distress
prevailing drought and consequent price rise. The behavior such as large-scale internal migration and
farmers of our country lack the conviction that their disproportionately high suicides have signaled that
something is wrong with the rural sector in India.
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257
Agricultural growth has been, on average, lower than Average GDP Growth Rates—Overall and in
that in non-agriculture, including industry; but the rate Agriculture in India
of decline of the population dependent on agriculture (% per Year at 1999–2000 Price)
has been discouragingly low since employment outside
Period Total Agriculture Crops
of agriculture has not been growing fast enough. A
Economy and Allied and
rough calculation suggests that gross domestic product
Sectors Livestock
(GDP) originating in the “agriculture and allied sectors”
ce
category rose by about 21 percent in nominal terms
between 2013-14 and 2016-17, while the agriculture 1. Pre- 3.69 2.54 2.65
en
dependent population would have risen by about 4 Green
percent. Revolution:
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1951–52 to
So, GDP per head of the agriculture dependent 1967–68
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population would have risen by around 17 percent in
nominal terms, whereas the index of consumer prices
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relevant to the rural areas rose by 16 percent. 2. Green 3.52 2.44 2.72
Revolution
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As of 2017, small and marginal farmers' 86 percent of Period:
land holdings are less than 2 hectares of land. In 2012- 1968–69 to
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13, 140 million hectares of land was used for agriculture 1980–81
aw
purposes, which later got fragmented into smaller
pieces. From 36 million in 1971, the number of marginal 3. Wider 5.40 3.52 3.65
land holdings increased to 93 million in 2011. Farm land
L Technology
at present largely consists of smaller land holdings Disseminati
of
passed on to farming families for generations or leased on Period
to farmers by a larger holder. 1981–82 to
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1990–91
This article explains the current situation of farmers in
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India in context to the agrarian crisis , along with a new

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cause adding to the list of reasons for the agrarian crisis 4. Early 5.69 3.66 3.68
i.e., Climate change. Climate change is a recent Reforms
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development to affect our agricultural economy. Unless Period :

the shift in rainfall is not studied and recorded , farmers 1991–92 to
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will continue to lose their harvest and the agricultural 1996–97

economy will fall further. As a result of climate change
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and the declining economy for farmers in the country,

5. Ninth 5.52 2.50 2.49
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the government must replace their subsidies with a well

Plan Period:
abled institute to educate farmers to teach them to thrive
er
1997–98 to
on the their own instead of depending on corrupt public
2001–02
nt
officials. In order to bring back the agricultural economy

this article proposes that the government must curb its
eI
import allowances with other countries in order to make 6. Tenth 7.77 2.47 2.51
India less dependent on imports and more dependent Plan Period
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on the produce of Indian farmers. This will effect India’s : 2002–03 to

trade relations with other countries majorly ,but it will 2006–07
eventually strengthen India’s economy in the long run
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258
Source: 1. National Accounts Statistics 2008 (New soil conservation and fisheries. The production of food
Series), Central Statistical Organization, Ministry of grains increased from 54 million tones in 1950-51 to
Statistics and Programme Implementation, New Delhi. 65.8 million tones at the end of the plan period.
2. Eleventh Five Year Plan (2007–2012), Agriculture, SECOND FIVE YEAR PLAN (1956-61)
Rural Development, Industry, Services and Physical
Infrastructure, Volume III, Planning Commission, During the second five-year plan period priority was
ce
Government of India, 2008. given to industrial sector. The plan outlay for the
agriculture sector was only 20%. Fixed target of food
en
NATIONAL INITIATIVES AND production during this plan was 80.5 million tons, but
INTERNATIONAL CONVENTIONS the actual production was 79.7 million tons. There was
ud
shortage in the production of all crops except sugarcane.
Policy making in agriculture is set with several Food grains were imported to meet the shortage.
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difficulties. The following are some of the problems in
making agricultural policy. First, agriculture is an THIRD FIVE YEAR PLAN (1961-66)
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unorganized sector activity and therefore policy
responses could not be predicted priori with objective The main objective of this plan was to achieve self-
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probabilities. Second, the information flow to sufficiency in food grains and to increase the agricultural
agricultural sector is not as quick as it takes place in production to meet the needs of industry and export.
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other sectors. The information asymmetry poses Accordingly, the plan gave higher priority to agriculture
problems in predicting outcomes. Climatic differences sector and irrigation than to industry development.
and their influence on agriculture is the third problem.
The fourth issue is uneven distribution of land and
assets in the sector. Apart from these above, the sector
L aw
Specific programs like the Intensive Agricultural District
Programme (IADP), and High Yielding Varieties
Programmes were introduced. Government
of
has a strong link with consumers and other industries. popularized the HYV of wheat and rice developed in
The aggregate growth of the economy of any country is Mexico and Philippine respectively. This was popularly
al
sensitive to the fluctuations in this sector. Therefore, the known as Green Revolution. The plan targeted to
impact of agricultural policies in India needs to be increase overall agricultural production by 30%, but the
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analyzed in conjecture with other policies. achievement was disappointing. Due to the drought
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condition in 1965-66, the production increased by 10%

Though there is no comprehensive policy addressing only against the target of 30%.
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agriculture sector, agriculture sector was given

importance in five year plans and programmes were With the experience of the third plan, the planning
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introduced to promote agriculture sector. The following commission assigned greater priority to agriculture in
section reviews the programmes introduced during the the succeeding plans. Originally fourth plan was drafted
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five year plans. in 1966. It was abandoned on account of economic

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disturbance like two years of drought, devaluation of

FIRST FIVE YEAR PLAN (1951-56) rupee and inflationary condition. Instead three annual
er
plans were implemented between 1966- 69.

Agriculture sector was given topmost priority in the first
nt
plan period. This plan mainly concentrated on THREE ANNUAL PLANS (1966-69)
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increasing the food production as there was severe food

shortage in India. About one third (31%) of the plan During this period high priority was given to minor
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outlay was allocated to agriculture sector. Major features irrigation and this was followed by adoption of a high
of this plan were abolition of zamindari system, the yield variety programme to increase agriculture
launching the community development programmes, production and productivity. During this period
Grow More Food campaign along with improvement in government set up Agricultural Price Commission to
other related fields like marketing, animal husbandry, assure minimum support price to farmers and the Food
*
259
Corporation of India (FCI) for maintaining buffer stock plan 1980-85 onwards new impetus was given to
to overcome fluctuations in the supplies of food grains agriculture with 24% of budget allocation. Agriculture
and their prices. sector grew at an annual rate of 4.3% and food grain
production increased to 152 metric tons and this was
FOURTH FIVE YEAR PLAN (1969-74) named as second green revolution. This has spread into
eastern and central states include West Bengal, Bihar,
Two important objectives relating to agriculture sector Orissa, Madhya Pradesh, and eastern Uttar Pradesh.
ce
were set during this plan. The first was providing the
conditions necessary for a sustained increase of food SEVENTH FIVE YEAR PLAN (1985-90)
en
production by about 5% per annum over the decade of
1969-78. Secondly, was enabling a large section of the This plan emphasized on policies and programs for
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rural population including small farmers in the dry areas rapid growth in food grains production. Public sector
and agricultural laborers to participate in the process of plan outlay in seventh plan relating to agriculture was
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agricultural development and share its benefit. The Rs.10.52 crores but actual spending was Rs. 12.79
approach to fourth plan emphasized the necessity to crores. This plan gave more emphasis on specific
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create favorable economic conditions for the promotion projects like Special Rice Production Programme in the
of agriculture and systematic efforts to extend the Eastern Region, National Watershed Programme for
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application of science and technology to improve Rain Fed Agriculture, National Oilseeds Development
agricultural practices. The allocation to agriculture was Project, and Social Forestry etc. The seventh five-year
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23% of the total plan outlay. However, the target was plan got extended beyond its period by two years.
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not achieved. The actual production of food grain was Therefore, eighth plan was introduced only in 1992.
104.7 million tons in 1973-74 as against target increase
of 129 million tones. EIGHTH FIVE YEAR PLAN (1992-97)
L
of
FIFTH FIVE YEAR PLAN (1974-79) Eighth five-year plan was introduced in the changed
economic environment. New Economic Policy (NEP)
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Fifth five-year plan was introduced under severe was introduced with stabilisation and structural
economic crisis. It was proposed to achieve the two adjustment measures. Liberalisation, privatisation and
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objectives; removal of poverty and attainment of self- globalisation are the main features of the New
ou
reliance through promotion of higher rate of growth, Economic Policy 1991. On the lines of conditions of the
better distribution of income and a very significant step International Monetary Fund (IMF) and world bank,
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up in the domestic rate of saving. During the fifth plan steps were taken towards reducing the role of the state
Rs 8080 crores, constituting nearly 21% of the total plan and encouraging active private sector participation. The
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outlay was allocated for agriculture and irrigation same mood was reflected in the strategy of the eighth
development. This plan gave priority to the spread of plan in the form of attempts to promote private
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High Yield Varieties cultivation, greater use of fertiliser, initiatives, participation of NGOs and Panchayat Raj
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pesticides and insecticides to increase agricultural Institutions (PRI). This plan attempted to promote a
production. This plan provided special emphasis on regionally broader based pattern of agricultural growth.
er
small and marginal farmers, dry farming techniques, The salient feature of this plan was faster growth of the
nt
evolving of High Yield Varieties (HYV) seeds for other manufacturing and agriculture and allied sectors. The
crops, and for desert land reclamation. The fifth plan public sector outlay in eighth plan related to agriculture
eI
was terminated at the end of fourth year in March 1978. was Rs. 22467 crores.
Th
SIXTH FIVE YEAR PLAN (1979-83) NINTH FIVE YEAR PLAN (1997-2002)
There were two sixth plans. The first was under the The objectives of the 9th plan related to agriculture are
Janatha Party for the period 1978- 83 and the second as follows,
was under Congress during 1980-85. From the sixth
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260
 Priority to agriculture and rural development with a introduction of Technology Mission for Integrated
view to generate adequate production, employment Development of Horticulture in the North Eastern
and eradication of poverty. Region in 2000-01, Technology Mission for Cotton in
1999-00, introduction of centrally sponsored scheme for
 Ensuring food security and nutritional security for Farm Water Management to increase crop production
all, particularly the vulnerable sections of the in eastern India in 2001-02. The other important policy
society. measures are legislation for plant variety protection and
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farmer’s rights, announcement of National Seed Policy
 Promoting and developing people‟s participatory in 2002 and implementation of National Agricultural
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institutions like PRI, Co-operatives and SHGs. Insurance Scheme in 1999-2000. To address the credit
needs credit linked capital subsidy scheme for
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The ninth plan proposed to realize the targets through a construction / modernisation / expansion of cold
regionally differentiated strategy based on agronomic, storage infrastructure was introduced in 2000- 01. The
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climatic, and environment friendly conditions. For the other schemes were introduction of rural godown
first time ninth plan developed agricultural strategy
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scheme 2001-02, lifting some of the restrictions and
based on the broad regional characteristics of the agro- controls on the movement and storage and export of
economic situations as-
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food grain or agricultural produce, de-reservation of the
manufacture of some farm implements/ machineries
 North western High Productivity Regions: The
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from the small scale industry sector 2002.
strategy is to promote diversification and high value
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crops and to strengthen linkages with the agro Public sector outlay in ninth plan related to agriculture
processing industry and exports and creation of and allied activities was Rs. 37546 crores. The
basic infrastructure. performance of the agriculture sector during this plan
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period was not encouraging. The average growth was
of
 Eastern Region with abundant water: The strategy 2.06% through the targeted growth was 3.9%. The
is to exploit the productivity potential of this region, average annual production of pulses was marginally
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bringing the yield to the levels of high productivity declined to 13.3 metric tons from 13.41 metric tons
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states of Haryana and Punjab. during the eighth plan. However, there is an increase in
the production of food grains to 202.58 metric tons.
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 Water-scare Region - Peninsular India and

Rajasthan: Development of efficient water TENTH FIVE YEAR PLAN (2002-07)
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harvesting and conservation methods and

technologies, suitable irrigation packages based on During the tenth plan public sector outlay related to
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watershed approach and promoting appropriate agriculture and allied sector was Rs.58933 crores.
farming systems. During this plan period Ministry of Agriculture
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introduced several programs aimed at diversification of

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 Ecologically Fragile Regions – including Himalaya agriculture, strengthening technology validation,

and Desert Regions: The thrust will be on the demonstration and dissemination, water saving and
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development of eco-friendly agriculture in these development infrastructure. The programs are National
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regions. Horticulture Mission, Micro Irrigation Programme,

National Gender Resource Centre in Agriculture, Jute
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The much awaited National Agricultural Policy 2000 Technology Mission, National Agricultural Innovation
was announced during the ninth plan period. This has Project, National Fisheries Development Board,
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changed the approach from the earlier scheme approach National Mission on Bamboo Technology and Trade
to macro management approach. Several initiatives were Development. Government decided to set up a Krishi
taken during this plan in accordance with the agricultural Vigyan Kendra (KVK) in each rural district (578) in the
policy, 2000. Some of these are creation of a Watershed country. Agriculture Technology Management Agencies
Development Fund with NABARD in 1999-00,
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261
(ATMAs), the National Rain fed Area Authority generate the demand to support 4.0% growth in
(NRAA) were introduced. Government upgraded a agriculture with food grains growing at about 2.0% per
rehabilitation package amounting to Rs 16978.69 crores year and non-food grain growing at 5.0 to 6.0%.
for farmers in distress in 31 selected districts in Andhra
Pradesh, Karnataka, Kerala, Maharashtra. These FOOD AND AGRICULTURE
packages from prime minster relief fund were released ORGANISATION OF THE UNITED
to strengthening institutional credit support, irrigation NATIONS (FAO)
ce
development, promotion of micro irrigation, watershed
development, extension services, enhancing Seed India has been a member of the Food and Agriculture
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Replacement Rate (SRR) and income augmentation Organisation of the United Nations (FAO) since 1945
through horticulture, livestock and fisheries in above and was one of its founding members.
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mentioned states.
INTERNATIONAL PLANT
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ELEVENTH FIVE YEAR PLAN (2007-12) PROTECTION CONVENTION (IPPC)
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This plan emphasised inclusive growth to achieve a India signed the International Plant Protection
target growth of 4% per annum in GDP from Convention on 30th April 1952 and subsequently
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agricultural and allied services. Eleventh plan identified ratified it on 9th June 1952. The IPPC sets out some
the need for improving the access to technology to general guidelines for national plant protection and
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increase production and optimum use of natural recommends the setting up of a plant protection
organisation in every State. The responsibilities of this
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resources. There are identified tools to make agricultural
sector inclusive in the development process. The plan organisation include the:
aimed to attracting higher public investments and
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• Issuance of certificates to importing parties.
promoting diversification to higher value crops and
of
livestock,
• Surveillance of both cultivated and wild flora
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de-centralizing decision making to address location and of plant products in storage and transport.
specific local problems and to improve the accessibility
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• Inspection and disinfection of plant products

of land, credit to the farmers. Several programmes like
in international trade.
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National Food Security Mission (NFSM), Rashtriya

Krishi Vikasa Yojana (RKVY), Macro Management of
• Protection of endangered species and the
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Agriculture (MMA), Integrated Scheme of Oil Seeds,

conduct of pest risk analyses.
Pulses, Oil Palm, and Maize (ISOPOM), National
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Mission for Sustainable Agriculture (NMSA), National The IPPC also discusses the necessity of phytosanitary
Project on Management of Soil Health and Fertility
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certification, to ensure that exported plants conform

(NPMSHF) were introduced. During this plan period with a certain standard level of quality. It further
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the projected allocation for agriculture and irrigation provides regulations for imports, and states that in order
was Rs 121556 crores at 2006-07 prices.
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to prevent the spread of pests, contracting parties may

choose to restrict or prohibit the entry of certain plants
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TWELFTH FIVE YEAR PLAN (2012-17) and materials.

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Twelfth five-year plan emphasised on inclusive growth.

The plan document observed that agriculture growth
SEEDS ACT 1966 (SEEDS ACT) AND
THE SEEDS RULES 1968 (SEEDS
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has always been an important component for

inclusiveness in India and higher GDP growth without
RULES).
corresponding growth in agriculture leads to The Seeds Act is the central legislation which regulates
accelerating inflation in the country. It was estimated the crop seed industry in India. The Seed Rules were
that 9.0% growth of the economy as a whole will
*
262
enacted to supplement the Seeds Act 1966. The government for their own person need. Hence, leaving
authorities set up under the Seeds Act are the: the farmers with nothing but debts, reason for land
acquisition and depression, which eventually leads to
• Central Seed Committee; farmer suicides.
• Central and State Seed Laboratory; India needs policies that a more farmer centric rather
than technologically centric, a perfect example of this is
•
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Seed Certification Agency. the Karnataka State Agricultural Policy 2006.
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SEEDS (CONTROL) ORDER 1983 KARNATAKA STATE AGRICULTURAL
(ORDER 1983). POLICY, 2006
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This provides that no person can carry on the business This policy adopted a “Farmer Centric” approach. It has
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of selling, exporting or importing seeds at any place focused on the farmers rather than the technology
except in accordance with the licence granted to him alone. The policy envisaged agricultural growth rate of
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under this Order. 4.5 percent per annum. It is estimated that the 4-5
percent growth rate in gross value of agricultural
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PLANT QUARANTINE (REGULATION production would set the income of about 3 percent per
OF IMPORT INTO INDIA) ORDER 2003 annum for the farmer household and this is essential for
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(ORDER 2003) . the livelihoods of the farmers.
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This provides that no consignment of plants or plant The policy envisaged a major role for the state to attain
products can be imported into India without a valid L the stated objectives of the policy through budgetary
permit obtained under this Order. Under Order 2003, support and macro-economic adjustments, production
plant species mentioned in Schedule IV cannot be
of
and technology sector, land issues, agro processing,
imported, and the plant species and plant varieties trade and value addition to the farm products, removal
mentioned in Schedules V, VI and VII can be imported
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of domestic market distortions and strengthen the

only with an import permit or special authorisation. All linkages with other allied sector. The policy was
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other plant species and plant varieties including new announced at a time when the net income of the farmers
plant species or varieties can only be imported in India was almost stagnant, farm sector income was under
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after a pest risk analysis (PRA) is carried out in stress, the suicide of farmers, and agriculture sector has
accordance with the guidelines issued by the Plant
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registered growth rate between 2 and 3% per annum.

Protection Adviser. All consignments must also be
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accompanied by a Phytosanitary Certificate issued by The major goals of the policy as presented in the policy
the authorised officer at the country of origin. document are as follows —
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RECOMMENDATIONS 1. To improve the Soil Health.

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The policies and conventions mentioned above have

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2. Conservation of Natural Resources mainly land and

been a pattern of efforts in order to eradicate the water.
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agrarian crisis which did not have a lasting effect on the

economy but in fact further slowed down the growth of 3. To improve the availability of agricultural credit.
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the agricultural sector. The national plans in place were

only successful in providing subsidies to farmers, 4. Integrated Post Harvest Management.
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however these subsidies were to be availed by farmers

from the government officials in charge. It is these 5. Lab to Land at quick pace.
government officials who instead of providing the
subsidies take most of the resources provided by the 6. To double the agricultural production in a decade and
net income of the farmer.
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263
7. To achieve growth rate of 4.5 percent per annum. to the urban areas. No less than Raghuram Rajan,
former governor of the Reserve Bank of India, had said
8. Shift to “demand driven” technology from the that the biggest reform would be to move people out of
“supply pushed”. agriculture into urban areas, because the market there
needs cheap labor.
Karnataka State Agricultural Policy 2006 is based on five
principles known as “Panchsutra” announced in 2006- This, then, is the economic policy of the country.
07 budget. All these five principles provide integrated
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Agriculture is deliberately being kept impoverished.
support to agricultural sector in accelerating the growth Agriculture is made to sacrifice itself to keep economic
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rate, they are — “reform” alive.
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1. Protect and improve the soil health CLIMATE CHANGE A BANE ON THE
AGRARIAN CRISIS
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2. Conservation of natural resources, with special
emphasis on water and Micro irrigation. India is already experiencing a warming climate. Unusual
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and unprecedented hot weather are expected to occur
3. Timely availability of credit and other inputs to the far more frequently and cover much larger areas. Under
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farmers. 4°C warming, the west coast and southern India are
projected to shift to new, high-temperature climatic
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4. Integrate post-harvest processing with the production
regimes with significant impacts on agriculture. A
process.
decline in monsoon rainfall since the 1950s has already
5. Reduce the distance between lab and land in transfer
of technology.
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been observed. The frequency of heavy rainfall events
has also increased. A 2°C rise in the world’s average
temperatures will make India’s summer monsoon highly
of
Though the above policy is a good example of a farmer unpredictable. At 4°C warming, an extremely wet
centric policy however, it lacks the factor of providing monsoon that currently has a chance of occurring only
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education to farmers. The main issue that has been once in 100 years is projected to occur every 10 years by
the end of the century. An abrupt change in the
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neglected is that in order to carry out these policies the

people for who the policy is must be educated about the monsoon could precipitate a major crisis, triggering
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process, a hands on approach must be adopted to teach more frequent droughts as well as greater flooding in
farmers how to grow a successful harvest. large parts of India. India’s northwest coast to the south
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eastern coastal region could see higher than average

It is said that the accumulation of governmental and rainfall. Dry years are expected to be drier and wet years
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environmental factors is responsible for this crisis in wetter. Droughts have major consequences. In 1987 and
India. however, the blame rests solely on government: 2002-2003, droughts affected more than half of India’s
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not one particular government, but successive crop area and led to a huge fall in crop production.
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governments. The problem lies not in the farm but Droughts are expected to be more frequent in some
outside the farm. Farmers are suffering not because of areas, especially in north-western India, Jharkhand,
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nature as much as they are suffering because of policy Orissa and Chhattisgarh. Crop yields are expected to fall
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design. significantly because of extreme heat by the 2040s. More

than 60% of India’s agriculture is rain-fed, making the
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Policy design is what has led to this crisis, because the country highly dependent on groundwater. Even
successive governments have been advised by the World without climate change, 15% of India’s groundwater
Th
Bank to take 400 million people out of the rural areas to resources are overexploited. Although it is difficult to
urban areas to provide labor to industries. But predict future ground water levels, falling water
governments cannot actually force people out. They are, tables can be expected to reduce further on account of
therefore, creating economic conditions that push increasing demand for water from a growing population,
farmers to abandon agriculture and relocate for survival
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264
more affluent life styles, as well as from the services the development of drought-resistant crops can help
sector and industry. reduce some of the negative impacts.
Even without climate change, world food prices are CONCLUSION

expected to increase due to growing populations and
rising incomes, as well as a greater demand for biofuels The matter of the deteriorating condition of India’s
Agrarian crisis shouldn’t be tucked under the carpet, and
Rice: While overall rice yields have increased, rising
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our country’s food security should not be dependent on
temperatures with lower rainfall at the end of the imports from other countries. India is a country where
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growing season have caused a significant loss in India’s half the population are people living in urban areas
rice production. Without climate change, average rice running the country and half the population are people
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yields could have been almost 6% higher (75 million living in rural areas who are mainly dependent on
tons in absolute terms) farming. It is unfair to the people living in rural areas
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that the country they live in is making it difficult for their
Wheat: Recent studies shows that wheat yields peaked profession to thrive. Due to agricultural needs of the
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in India and Bangladesh around 2001 and have not country dependent on trade the farmers face a hard time
increased since despite increasing fertiliser applications. dealing with their loss of hard work, due to the lack of
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Observations show that extremely high temperatures in resources and knowledge of the process of farming.
northern India - above 34°C - have had a substantial This leads to farmers committing suicide as a result of
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negative effect on wheat yields, and rising temperatures the government providing Seven states account for
can only aggravate the situation. Seasonal water scarcity,
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87.5% of total suicides in the farming sector in the
rising temperatures, and intrusion of sea water would country. The states are Maharashtra, Karnataka,
threaten crop yields, jeopardizing the country’s food Telangana, Madhya Pradesh, Chhattisgarh, Andhra
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security. Under 2°C warming by the 2050s, the country Pradesh and Tamil Nadu. Both marginal farmers and
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may need to import more than twice the amount of small farmers are committing suicide. Maharashtra is the
food-grain than would be required without climate worst affected state. Ironically, Punjab, which benefited
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change. most from the Green Revolution, also presents a

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depressing picture of farmer’s suicides in India. Between

RECOMMENDATIONS 1995-2015, 4687 farmers’ suicides have been reported
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from the state of Punjab of which 1334 from one Mansa

• With built-up urban areas rapidly becoming “heat-
district alone.
islands”, urban planners will need to adopt measures
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to counteract this effect. The harsh truth of the matter is that unless the
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government does not cut down on imports of food to

• Improvements in hydro-meteorological systems for the country, the country will not realize its deteriorating
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weather forecasting and the installation of flood agriculture economy. In order to increase the standard
warning systems can help people move out of harm’s
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of living and to reduce poverty in the rural areas we need

way before a weather-related disaster strikes. to take measures which are farmer centric, it must
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revolve around increasing employment rather than

• Investments in R&D for the development of
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hiring machines to do the job. If these measures are not

drought-resistant crops can help reduce some of the
taken half of India’s population will perish.
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negative impacts.
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• The efficient use of ground water resources will need

to be incentivized.
• Crop diversification, more efficient water use, and

improved soil management practices, together with
*
265
RIGHT TO PRIVACY AS A FUNDAMENTAL RIGHT

& ITS IMPLICATIONS
BASIL VARUGHESE & KARAN DUA
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“You can have security and not have privacy, but you cannot protection. The judgement observed by considering
have Privacy without security.” privacy as a protected constitutional right, it would
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further polish and evolve the concept of liberty under
Tim Mather
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Article 21 of the constitution.
INTRODUCTION BRIEF OVERVIEW OF THE
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The right to privacy is protected as an intrinsic part of PUTTASWAMY JUDGEMENT
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the right to life and personal liberty under Article 21 and Reaffirming the dissenting view of Justice Subba Rao in
as a part of the freedoms guaranteed by Part III of the the Kharak Singh case, Court observed that the right of
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Constitution.”1 Fundamental right to privacy has always privacy was essential to personal liberty despite the fact
been assumed to be implicit under the Indian it is not expressly mentioned in the constitution. It was
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constitution, having been recognized by the courts on further observed by Justice Chandrachud that since few
various occasions. The unanimous judgement in Justice
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aspects of liberty are clearly specified and protected by
K.S. Puttaswamy vs Union of India2 declaring privacy as Article 19, it does not restrict Article 21 of its expansive
a fundamental right will pave the way for solving various nature. Any law violating fundamental rights has to
L
lacuna in the realm of personal privacy and liberty of an examined with reference of its effect on the guarantees
of
individual. Judgement contrary to the same would have of the freedom and not on the basis of the aim of the
been unfathomable in a country founded upon liberal state action. M.P Sharma and Kharak Singh was not
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ethos. The top court’s intervention is appreciated since completely overruled; it was overturn to the extent that
privacy is a term not having a precise definition from
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the right to privacy was not granted constitutional

constitutional perspective, ambiguities prevailed protection. The right to be let alone is an integral part of
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whether it exists as a fundamental right or not. the right to enjoy life which is a subset of the right to
A nine-judge bench was set in the context of the life of an individual.
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provisions of the Aadhar Act that was challenged in the Countering the arguments of the respondents that
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court, and it was observed that without clarifying makers of the constitution never intended privacy to be
whether the right to privacy is a fundamental right, the a part of the fundamental rights, the court observed that
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court couldn’t proceed in the matter. The respondents, the constitution had a historical background and issues
i.e., Union of India relying on judgements of eight judge
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engulfing the modern era would have not crossed the

bench 3 and six judge benches 4 respectively, stated minds of the original drafters. Constitution is not a
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privacy didn’t fall within the ambit of Part III of the stagnant document, rather It evolves with the needs of
constitution. The existence of different interpretations
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the society.
of these judgments led to the formation of a Nine-bench
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judge in K.S. Puttaswamy Vs Union of India for giving OVERRULED CASES

finality to the true nature of the concept of privacy.
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In ADM Jabalpur V Shivakant Shukla, the issue whether

The question was of utmost relevance since the President on the proclamation of emergency could
fundamental rights are accorded constitutional
1 3
Justice K.S. Puttaswamy (Retd.) & Another vs Union of M P Sharma & Others vs Satish Chandra, AIR 1954 SC
India & Others, Writ Petition (Civil) No. 494 of 2012 300
2 4
Ibid. Kharak Singh vs State of U P, AIR 1963 SC 1295
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266
a company and its shareholders is a fundamental but not

sacred principle of modern corporate law. Indian law
demands that courts respect the sanctity of the
corporate veil and the independent corporate
personality that comes into existence immediately upon
incorporation of a company. Since Reverse veil piercing
takes into account the balancing of relevant interests
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that are much needed to ensure justice, faith and stability
in the system it proves to be a potential equitable
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remedy.
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&
L aw
of
al
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na
io
nt
er
nt
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Th
*
157

ADITYA G.
ce
INTRODUCTION asserted that litigations in India are handed down from
one generation to another as part of their heirloom.2
en
“Justice too long delayed is justice denied” 1
One has to address this fact while keeping in mind that
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-Martin Luther King Jr.
under the Constitution of India, the judicial function, as
a sovereign duty, is assigned to the judicial wing of the
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The judiciary in India is arguably the most respected
organ of the state, mostly due to its ‘duty bound’ state which is required to discharge its duty ensuring
speed, accuracy and cost effectiveness. Deficiency in any
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approach towards securing the rights of citizens and due
to the adoption of ‘judicial activism’ in various social, of these three aspects can result in the failure of justice
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socio-economic and environmental issues. The judiciary delivery system to discharge its duties in a manner
has been instrumental in keeping a check on the expected by the society.3 One has to also consider the
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arbitrary usage of power by the other two organs of the impact of such deficiency on ‘the right to speedy trial’
state i.e. the Legislature and the Executive, thereby which has been read into Art. 21 through various cases
aw
upholding the constitution in letter and spirit and laws thus having the force of a fundamental right and
allowing constitutionalism to thrive in this country.
L how such deficiency has led to the violation of it.
Contrary to the reputation of being respectable, fair and Likewise, access to justice for the common man is
another concern along with the difficulty in
of
honorable, the judiciary also holds the reputation of
being lethargic, tedious to approach and of being administrating the judiciary and the plunge in its
credibility thereof. These aspects have been given
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unfriendly to common litigants; Any kind of interaction

with this organ of the state is generally considered to be substantial emphasis in subsequent parts of this paper.
rn
undesirable by the common man, this negative image It is of paramount importance to solve the issue of
has overwhelmingly eclipsed the substantial amount of
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mounting pendency and backlog of cases so as to assure

altruistic work done by it, so much so that approaching the achievement of the preambular goal of securing to
a court in itself is stigmatized by the society, it is often
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all citizens social, economic and political justice and

seen to bring shame on oneself and one’s family if one hence the judicial system is in desperate need of new and
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were to approach the judiciary irrespective of the innovative reforms that can bring it out of this
reasons for doing so. dysfunctional state. Proposing such reforms is the
io
There may be many reasons for the public to have such primary objective of this paper and an attempt has been
nt
a negative opinion on the judiciary, however, one has to made to meet such objective in succeeding parts of this
paper.
er
affirm the fact that drawn-out and prolonged

proceedings often extending up to many years and
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sometimes decades is certainly one of the primary

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reasons for the formation of such bleak opinion, it is

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1Martin Luther King Jr, 'Letters from Birmingham Jail ' (The 2Yashomati Ghosh, 'Indian Judiciary: An Analysis of the
Estate of Martin Luther King Jr, 16th April 1963) Cyclic Syndrome of Delay, Arrears and
<https://swap.stanford.edu/20141218230016/http://mlkk Pendency'[2017] 5(21) Asian Journal of Legal Education
pp01.stanford.edu/kingweb/popular_requests/frequentdocs
/birmingham.pdf > accessed 4th September 2018
*
158
DECODING PENDENCY, DELAY, of admission of new cases. Pendency, however is a

ARREARS AND BACKLOGS useful tool to roughly estimate the speed and efficiency
of a judicial system. Currently, the pendency across all
Before trying to analyze the impacts and causes of courts of the country is at 2,76,70,455 (i.e. more than 27
pendency, delays, arrears and backlogs, it is very million) cases. 6 This is a gargantuan number that
important for one to understand properly what these indicates the fact that clearly there is some irregularity or
terms mean and how they are a problem that can be discrepancy in the dispensation of justice.
ce
fateful for the justice dispensation system of the
country. Delay, as according to the definition so given includes
en
all cases that have been instituted but have not been
Though the problems of backlogs, arrears and pendency dealt with in the time frame prescribed for the same.
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have been in the limelight from as early as 1949 through This is only a metric to understand how many cases are
the High Court’s Arrears Committee4, there was never a actually running behind vis-à-vis their disposal and is
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universal consensus on the meaning of these terms and calculated irrespective of the reason for the delay of such
they were often used synonymously with each other cases. Delay too, per se is not a bad thing as cases may be
ris
creating scope for misconstruction and confusion. It delayed for legitimate reasons. In some cases, where the
was only in the Law Commission’s 245th report in 2014 judiciary’s full attention is required due to the gravity of
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that a clarity was obtained on what these terms actually the facts or due to other factors, delay may actually be
meant, accordingly, these terms were defined as follows positive as it could provide for elaborate and detailed
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in Chapter-II of the aforesaid report: proceedings that maybe required to mete out justice.
aw
a. Pendency: All cases instituted but not disposed of, regardless of Arrears are a subset of delays where the cases so delayed
when the case was instituted. were due to unwarranted reasons such as inordinate
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adjournments, absentee counsels etc. arrears unlike
b. Delay: A case that has been in the Court/judicial system for
of
pendency or delays are necessarily bad for the
longer than the normal time that it should take for a case of that
dispensation of justice and maybe detrimental to the
type to be disposed of.
al
functioning of the judiciary. Arrears are the main

problem plaguing the judicial system and they require to
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c. Arrears: Some delayed cases might be in the system for longer

than the normal time, for valid reasons. Those cases that show be in the limelight rather than pendency. As on date,
there are 22,89,561 (more than2.2 million) cases 7 that
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unwarranted delay will be referred to as arrears.

have been pending for more than a decade; even if one
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d. Backlog: When the institution of new cases in any given time were to assume that 50% of these cases were delayed
period is higher than the disposal of cases in that time period, the due to legitimate reasons, the number of cases that
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difference between institution and disposal is the backlog. This would still fall under the ambit of arrears would be a
figure represents the accumulation of cases in the system due to the staggering 11,44,782 cases, the situation with respect to
io
system’s inability to dispose of as many cases as are being filed.5 arrears is not much different for cases that are pending
nt
for less than ten years of which there are currently

In the sense of the definition so given, ‘pendency’ in 2,53,34,549 cases. One can claim that much of the
er
itself is not the problem, every judicial system must have pendency in the judiciary is due to unwarranted reasons
a certain amount of pendency, it is practically impossible that could be avoided.
nt
for a judicial system to dispose of cases at the same rate

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2018) <http://njdg.ecourts.gov.in/njdg_public/main.php>
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5 The Law Commission of India, Arrears and Backlogs: Creating accessed 31 August 2018
7 Ibid
additional Judicial (Wo)manpower, (Law Com No. 20, 2014) para
1, chapter-II
6 Ministry of Law and Justice, Department of
justice, 'SUMMARY REPORT OF INDIA AS ON DATE:

-31/08/2018'(National Judicial Data Grid, 31 August
*
159
Finally, backlog is a term that indicates the difference these four tracks have been given for in Rule 3(2) of the
between the number of cases instituted and the number aforementioned rules where Cases of Track-I are to be
of cases disposed by the judiciary in a given timeframe. disposed off within 9 months, Track-II within 12
Backlogs are the best parameter to measure the months and cases in Track-III and IV are to be disposed
efficiency of the judiciary. off within 24 months and these time limits are not
mandatory.
With the meaning of these terms in mind, one may
ce
wonder as to what “normal time” as mentioned in the There is no such prescription of time frames for
definitions is. The question of ‘normal time’ and setting Criminal cases, this may be due to the necessity of the
en
up of mandatory ‘time frames’ was first addressed by the courts to elaborately conduct trials so as to deliver fair
Supreme court in a series of cases starting from and fully informed verdicts considering what is at stake
ud
Common Cause v. Union of India (1996), 8 Common for the accused. However, one has to also consider the
Cause v Union of India (Common Cause-II), 19969, Raj Right to speedy trial which is read into Art.21 of the
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Deo Sharma v. State of Bihar10 and Raj Deo Sharma v Constitution as a fundamental right, the condition of
State of Bihar (Raj Deo II).11 However, in the case of P. under trial prisoners, the Human Rights aspect thereof
ris
Ramchandra Rao v. State of Karnataka,12 a seven judge and its impact on the prison system. There are a few
bench of the Supreme Court held that mandatory time instances under The Code of Criminal Procedure,1973
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limits could not be prescribed. Hence, the idea of where time limits are prescribed for different stages as
‘normal time’ being fixed and binding was scrapped and in Section. 57, Section 167 and Section 309.
&
non-binding time frames as directory guidelines were to
aw
be issued by the High Courts in exercise of their power UNDERSTANDING THE CAUSES OF
under Section 89 r/w Section 122 r/w Section 124 of DELAYS AND ARREARS
the Code of Civil Procedure, 1908.
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After understanding the problem of delay and arrears
of
Therefore, ‘normal time’ for civil proceedings vary from
from the preceding sections, it is natural for a person to
the jurisdiction of one High Court to another; for
wonder as to why such delay and arrears are caused in
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example, The Karnataka High Court has prescribed The

the first place. This section aims at answering this
Karnataka (Case flow Management in Subordinate
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precise question in a comprehensive manner.

Courts) Rules 13 in 2005 where Civil case types are
divided into four tracks under Rule 3(1) where Track-I
ou
The most commonly and most rightly stated cause for

includes: Maintenance, Child custody, Appointment of pendency is the insufficient appointment of judges and
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guardian and wards visiting rights, Letters of the inefficiency of courts due to the burden so caused.
Administration, Succession Certificate, Recovery of Currently, the total approved strength of judges across
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Rent and Permanent injunction; Track-II includes: all the High Courts in the country along with the total
Execution Cases, Divorce and Ejectment; Track-III number of judges approved for the Supreme Court is
io
includes: Partition, Declaration, Specific Performance, 1079 and vacancy as per the approved strength i.e. the
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Possession, Mandatory Injunction, Appeals, Damages, number of seats failed to be filled with respect to the
Easement, Trade Marks, Copy rights and Patents; and number of appointments approved is 427 as on 1-09-
er
Track-IV includes such matters that are not included 2018.14 Thus, an astounding 39.57% of the judges to be
under the first three tracks. The maximum time limit for
nt
appointed to the High Courts and the Supreme Court

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8 Common Cause v. Union of India (1996) 4 SCC 33 No LAW 294 LAC 2005, 29December,2006)
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9 Common Cause v. Union of India (1996) 6 SCC 775 <http://karnatakajudiciary.kar.nic.in/govtNotifications/gon

10 Raj Deo Sharma v. State of Bihar, (1998) 7 SCC 507 otfn5.pdf> accessed 31 August 2018
11 Raj Deo Sharma v. State of Bihar, (1999) 7 SCC 604 14 Ministry of Law and Justice Department of
12 P. Ramchandra Rao v. State of Karnataka, (2002) 4 SCC justice, 'Vacancy positions as on 1-09-2018 ' (Appointment of
578. Judges ,31-08-2018) <http://doj.gov.in/appointment-of-
13 The High Court of Karnataka, 'Karnataka (Case Flow judges/vacancy-positions> accessed 1st September 2018
Management in Subordinate Courts) Rules, 2005'(Notification
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160
4. processing of data should be minimal and only Personal Data

for the purpose for which it is sought,
5. entities controlling the data should be According to the bill, personal data is data relating to a
accountable for any data processing, natural person who is directly or indirectly identifiable
6. enforcement of the data protection framework having regard to any characteristic, trait, attribute or any
should be by a high- powered statutory other feature of the identity of such natural person or
authority, and penalties should be adequate to any combination of such features with any other
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discourage any wrongful acts. information.
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DATA PRINCIPALS AND DATA Right to be Forgotten
FIDUCIARIES
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As per the B.N Srikrishna Committee report on data
It is our view that any regime that is serious about privacy, the right to be forgotten refers to the ability of
pr
safeguarding personal data of the individual must aspire individuals to de-link, limit, delete, or correct the
to the common public good of both a free and fair disclosure of personal information on the internet that
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digital economy.14 Here, freedom refers to enhancing is embarrassing, irrelevant, misleading or anachronistic.
the autonomy of the individuals with regard to their
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personal data in deciding its processing which would Data Protection Authority and Appellate Tribunal
lead to an ease of flow of personal data. Fairness
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In order to create an effective data protection
pertains to developing a regulatory framework where
mechanism, there is has to proper implementation and
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the rights of the individual with respect to her personal
execution of laws, for this a Data Protection Authority
data are respected and the existing inequality in
shall be created. The DPA will be in charge of ensuring
bargaining power between individuals and entities that
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that every entity that handles data is conscious of its
process such personal data is mitigated. In such a
obligations and that it will be held to account in case of
of
framework, the individual must be the “data principal”
failure to comply. The draft bill has also recommended
since she is the focal actor in the digital economy. The
an Appellate Tribunal to prevent misuse of personal
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relationship between the individual and entities with

information and challenging the orders of the lower
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whom the individual shares her personal data is one that

machineries.
is based on a fundamental expectation of trust.
ou
Notwithstanding any contractual relationship, an Handling of Children’s Data

individual expects that her personal data will be used
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fairly, in a manner that fulfils her interest and is There is need to make stringent norms for protecting
reasonably foreseeable. This is the hallmark of a the data of children, the companies should be barred
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fiduciary relationship. 15 In the digital economy, from data processing such as tracking, behavioural
depending on the nature of data that is shared, the
io
monitoring, targeted advertising and any other type of

purpose of such sharing and the entities with which processing which is not in the interest of a child. There
nt
sharing happens, data principals expect varying levels of have been examples of companies such as Walt Disney,
trust and loyalty. For entities, this translates to a duty of
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Youtube and Hot Wheels which processes data of

care to deal with such data fairly and responsibly for children and use it for advertising purposes. In addition,
nt
purposes reasonably expected by the principals. This a parental consent shall be obtained as very commonly
makes such entities “data fiduciaries”.16 children lie about their age with just a click of few
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buttons.
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14 16
Sreenidhi Srinivasan and Namrata Mukherjee, Building Jack M Balkin, Information Fiduciaries and the First
an effective data protection regime, Vidhi Centre for Legal Amendment, 49(4) UC Davis Law Review (2016) at
Policy, New Delhi (2017) at pp. 18-19. p.1183.
15
Tamar Frankel, Fiduciary Law, 71(3) California Law
Review (1983) at p. 795.
*
271
STATE SURVEILLANCE AND PRIVACY anti-national elements but in no way, it should come at
the cost of individual privacy. At the moment there is
The revelations about global mass surveillance came no data privacy law in India to protect us from privacy
into light after Wikileaks published a series of infringement and the government is running
documents which revealed how millions of dollars were programmes without an effective legal backing. We as
being spent by intelligence agencies on mass surveillance citizens are giving large chunks of personal data in the
technology to keep an eye on the entire population. hope that we are being protected from terror activities
ce
Whistle-blower Edward Snowden also exposed and threats.
National Security Agency of the United States that they
en
were indulging in heavy surveillance on people across CONCLUSION
the globe.
ud
The Puttaswamy judgement that set a pure proposition
In India, surveillance by state was first noticed when a of law is based on a simple reading and understanding
pr
probe by the Central Bureau of Investigations exposed of the Indian constitution. As discussed earlier, it held
how the then Congress Government was indulging in the primacy of individuals rights above everything else.
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phone-tapping of the Opposition and also members of
its own cabinet. This case was dragged into court But the underlying matter is whether the judgement will
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whereby in a landmark judgment in the PUCL vs Union act as an excellent precedent in combating contentious
of India and Anr17, the court held that tapping of phones issues around privacy in future? States will always have
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was a violation of the citizens’ fundamental right to plenty of reasons at their disposal to justify the invasion
Privacy. This decision by the Supreme Court created a of privacy via surveillance, national security and so on,
aw
safeguard to ensure that power of state surveillance is in an era which faced with rising issues of crime, mafia,
not misused. terrorism etc. Another aspect that needs to be looked
L
into is that of data mining. Again, governments and
of
Government of India has been running a number of corporations will justify the same by taking the shield of
mass surveillance projects which include The Central efficiency and economic benefits.
al
Monitoring System (CMS), Network Traffic Analysis

(NETRA), National Intelligence Grid (NATGRID) and Thus, the researchers believe there in an immediate of
rn
the Lawful Interception and Monitoring Project (LIM). law to give effect to the judgement. With respect to
informational privacy, a bill has been drafted by Justice
ou
Recently, while hearing a PIL moved against the Srikrishna Committee is good at its core but needs
proposal of Ministry of Information and Broadcasting further enhancements to make it more robust. The
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to set up a Social Media Communication Hub in order industry needs clarity on what security standards should
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to collect and analyse digital and social media content, be followed by the data fiduciary. India’s draft data
the Supreme Court bench headed by Chief Justice Dipak protection bill is less harsh on companies compared
io
Misra observed and commented that “tracking and with the European Union’s General Data Protection
regulating social media content will transform us into a Regulation (GDPR) which mandates that every EU
nt
surveillance state.” The government on the other hand citizen’s data be stored within the EU. While the bill lays
er
explained to the court that there was no proposal to down user’s consent as a prerequisite for data
invade into individual right to freedom of speech and processing, it has proposed the state be exempt from
nt
privacy. The government clarified that it wants to this condition and that welfare functions of the state will
facilitate flow of information regarding its programmes be recognised as a separate ground for processing.
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and policies through social media platforms. Processing activities carried out by the state under law
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will be covered under this ground, ensuring that it is in

Mass surveillance is one of the most effective steps to furtherance of public interest and governance. In cases
combat terror related activities and keep a close eye on
17
AIR 1997 SC 568
*
272
of violation of the proposed law, the report clearly lays

down the size of penalty and even jail time for offenders.
ce
en
ud
pr
ris
Ju
&
L aw
of
al
rn
ou
lJ
na
io
nt
er
nt
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*
273
RIGHT TO BODILY INTEGRITY IN LIGHT OF

SURROGACY & ORGAN TRANSPLANTATION
SAKSHI AGRAWAL
ce
“The scope of right to bodily integrity extends to include the JURISPRUDENTIAL ASPECT
en
freedom to make choices about the use of body parts for either an
inalienable process like surrogacy or for detachment like organ The ambit of right to life can be carved out by looking
ud
transplantation.” at the various schools of thought that together form the
genesis of legal jurisprudence as we know it-
INTRODUCTION
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Natural Law- Believing that God has bestowed upon
Biotechnology is no longer the subject of sensational
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every individual to protect their own body which itself
scientific imagination; it has become one of the most
is a gift from God, Natural jurists generally shy away
crucial developments in the field of research, health
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from allowing such deep alteration of the said body. The
care, and business. However, while investors,
belief that man has to protect one’s body against the
researchers, and patients are ready to welcome new
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external forces, a school of thought believes in the
waves of drugs and medical treatments, biotechnology
sanctity of the body and is generally against the notion
aw
is not simply another business. The industry's raw
of absolute ownership- for the divine is the true
material is not silicon or steel, but life itself. This brings
owner.
about the complex problem of defining life and its
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ownership, for only that which is owned can be traded. Positive School- Believing in the thought of man being
of
present to serve a purpose and man being subservient to
In this light, creating a list of fundamental human rights
the Sovereign or State, the positivist school would make
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is a controversial task, but there is one right that appears

a rational nexus between the needs of subjects of state
in many lists—a right to bodily integrity, security, or
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which can be easily solved by a deed or a sacrifice by

control over one’s own body. The content of what all
other subjects of the state. The goal of societal
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should be entailed in this right is hotly contested. For

progression will be met through organ donation.
instance, does the right to bodily integrity require that
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organ selling be forbidden? Or on the contrary, does it

JUDICIARY
mean that organs, like any other property, is vulnerable
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to the wishes of the owner to dispose off of it as the The first inclination of a court, when hearing a matter of
owner deems fit- including selling it for compensation.1 unique quotient, is to attempt to fit the situation into an
io
existing section of pre-established law. The California

Up till now, the scope and ambit of biotechnology from
nt
Supreme Court took this approach in the case of Moore

a legal standpoint has not been ascertained. Countries at
v. Regents of the University of California 2 . Moore, a
er
various instances have set out limitations on body

leukemia patient, brought a claim of conversion against
altering acts such as surrogacy and organ
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his medical surgeon. The surgeon had harvested

transplantation. However, none of these have been
Moore's abnormal pancreatic cells without his
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consequential enough to be comprehensively used as a

knowledge and exploited the cells' special characteristics
guide to the field of biotechnology and the extent of
to develop a lucrative commercial method of producing
Th
right to body per se.

lymphocytes, a scarce substance in the immune system.
“ BODY PARTS" PROPERTY RIGHTS AND THE

1 By E. Richard Gold. Washington, D.C.: Georgetown
OWNERSHIP OF HUMAN BIOLOGICAL MATERIALS University Press. 1996.
2 793 P.2d 479 (Cal. 1990) (en bane), cert. denied, 499 UoS.
936 (1991).
*
274
The pertinent issue was whether the patient had an doesn’t fatally harm the body, the composition of the
ownership interest in his own cells in so much that the body is changed significantly and the Quality of Life is
use of them without consent could be considered altered greatly. The courts have interpreted this to be
stealing of goods, and their resulting technological counted as self-harm, thus, never allowed it.
development be considered wrongful.
The problem arises when we take into consideration the
The most applicable category of existing law was that regulatory act- Transplantation of Human Organs Act,
ce
of property, although it had never before been applied 1994 which allows for altruistic donations which
to components of an individual's body. The majority essentially means donation of organs to family members
en
allowed the surgeon to maintain a intellectual interest in of relatives in exchange of no consideration is allowed
the cells and the products that he developed from them. in India but is banned if done for a commercial purpose.
ud
They denied the patient ownership rights in his own If the constitutional limit placed on the act of separation
cells with a fear that the establishment of such rights of organ stems from the reasoning of self-harm, then it
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would curb and hinder the advancement of be done for commercial or altruistic purposes should
biotechnology industry, which the court saw as crucial make no difference in the eyes of law. For they both still
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to the future of health-care. However, the dissent in the include the aspect of self-harm, albeit for different
instant case opined on how the right is inherent in motivating factors.
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Rights to life and against bodily harm.
EXPLOITATION & SCOPE OF MISUSE
&
CONSTITUTIONAL LIMITATION
Similarly, surrogacy is an act that is majorly unregulated
aw
The Indian Constitution does not set out any express in India. Even though it is not explicitly banned, the
opinion on the true ownership of the body. However, Assistive Reproductive Technologies Act, 2007 allows
L
the concept of fundamental rights being bestowed upon for surrogacy in both altruistic and commercial forms.
of
the people, including a right to life of dignity and The pending Surrogacy Bill, 2016 proposes to
personal liberty, would raise a natural argument that completely ban commercial surrogacy and only allow
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man should thus be allowed to undertake whatever altruistic surrogacy for immediate family members. The
means necessary to save his life and dignity as long as it constitutional problem of this step arises from the fact
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doesn’t harm someone else’s similar right. As organ that surrogacy is only a use of the organ for a certain act.
transplantations happen ideally only when the donor is It has been described as renting of an organ for a
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capable of living a wholesome life after the donation, purpose. This is an interesting point of view as the usage
this scenario should come under the ambit of lawful of organ for the furtherance of the individual doesn’t
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means undertaken to save one’s life and dignity as set seem to be at odds with the constitution and its
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out under Article 21 pf the Constitution. principles. Stating that surrogacy is like any other
pregnancy, with only a different motivating factor would
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However, the defining principle behind each essentially mean that the State can impose no restriction
fundamental right is that they are not absolute. Each of
nt
on it. The Woman’s Right to Choose4 what labor to put

these rights also have inherent limitations placed on the her own body through, theoretically, falls under the
er
which can’t be removed even if the ambit of said rights ambit of Article 21.
is broadening. As the field of organ usage and separation
nt
of organs is niche, no explicit limitation has been set out However, the reasoning given for the proposed ban on
in the wordings of Article 213. However, the courts have surrogacy in India is twofold-
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time and again interpreted the limitation placed on this

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article to include the Right to self-harm as being

unconstitutional. Even though organ transplantation
3
“Body as Site, body as Space Bodily Integrity and Women’s 4
Woman, Womb, and Bodily Integrity by Christyne L. Nef.
Empowerment in India” by K Mathur Yale Journal On Law & Feminism. Vol3,Artcle 6, 1990
(https://www.jstor.org/stable/40277391)
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275
1. Talaq-Ul-Sunnat (Recognized by Prophet Talaq-Ul-Biddat is also irrevocable and cannot be

Mohammad)(APPROVED FORM) revoked in any circumstances.
2. Talaq-Ul-Biddat(Not recognized by Prophet
Mohammad)(UNAPPROVED)(TRIPPLE TRIPLE TALAQ IN INDIA
TALAK)
India despite being the nation with the 3rd largest
Talq-Ul-Sunnat Muslim population in the world, India has been slow to
ban triple talaq, unlike most Muslim-majority countries.
ce
This is the divorce which is effected in accordance with The controversy around triple talaq stems from how it
the rules laid down in the Quran. It is either ‘ahasan’ or
en
is practiced in modern-day societies. Triple talak has
‘hasan’. been in the national debate for so long in India and the
ud
‘Hasan’ it is an approved form of talak and it consists demand of UCC is also asked in order overrule the many
of three successive pronouncements of talaq during other religious issues which do unjust with women or
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three consecutive periods of purity(tuhur). Each of any other person in the society. Triple talaq in India was
three pronounced shoukd have been made at a time valid until the morning of 22nd August, 2017 and was
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when no intercourse had taken place during the period uphold as unconstitutional by the Supreme Court.
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of tuhur. The husband can revoke the divorce till his In the case of SHAYRA BANO. vs. UNION OF
second talaq becomes effective, if he doesn’t revoke INDIA4, a five judge bench headed by CJI J.S. Khehar
after the second then after third time the divorce can’t
&
giving the judgment with 3:2 majority that Talak-Ul-
be revocable. Biddat or TIPPLE TALAQ as unconstitutional.
‘Ahasan’ it is considered to be most approved form of
talaq and it consists of one pronouncement of talaq in a
tuhur(when not in her periods) which is followed by
L aw
First we will discuss what did the minority judges told
about the issue which they held to be constitutional
under Article 25 of the constitution. ICJ J.S.khehar and
of
abstaining from any sexual relation relation during the Justice Abdul Nazeer were the two minority judges. The
three month iddat period and for pregnant women it is minority declaration was written by ICJ, he has written
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for until delivery within three months, the husband can the conclusion in 9 points in the 9th part of the
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revoke anytime within iddat period. judgement and their declaration in 10th part.
Talaq-Ul-Biddat
ou
A. JUDGEMENT OF MINORITY5
It is considered to be irregular mode of divorce which FORMER CJI J.S.KHEHAR AND ABDUL
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was introduced In the second century of the NAZEER

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mohammden era. In this form of divorce it may be by

Triple Talaq or one single declaration and the condition They both (minority judges) came to conclusion that;
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of Tuhur is inapplicable for dissolving the marriage and

(1) Despite the decision of the Rashid Ahmad case1 on
it is also irrevocable and forthwith.
nt
the subject of talaq-e-biddat’, by the Privy Council,

It is also said that if a man says to his wife that he had the issue needs a fresh examination, in view of the
er
said talaq to her yesterday or earlier, it would lead to subsequent developments in the matter.
nt
divorce even if there is no prove. (2) All the parties were unanimous, that despite the
practice of ‘talaq-ebiddat’ being considered sinful, it
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The Hannafi school and the Sunni school recognizes was accepted amongst Sunni Muslims belonging to
this kind of divorce and approve it also but also consider the Hanafi school, as valid in law, and has been in
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it to be as sinful in the eye of Allah. Shai school and practice amongst them.
malliki school doesn’t recognize this form of marriage. (3) It would not be appropriate for this Court, to record
a finding, whether the practice of ‘talaq-e-biddat’ is,
4 Writ Petition (C) No. 118 of 2016 5 Supra note 4, at 272
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167
MINERVA MILLS V. UNION OF INDIA

SHRADHA SAXENA & KRISHANKANT SHARMA
INTRODUCTION limitation upon the constituent power has helped arrest

such forces to some extent and to stabilize the
ce
The phrase “Basic Structure” was introduced for the democracy.
en
first time by M.K. Nambiar and other counsels before
the court in the Golaknath v. State of Punjab 1case, THE FOLLOWING ARE THE FACTS OF
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but it was only in 1973 that the concept profiled in the THE CASE
text of the apex court’s verdict.2 The doctrine of basic
1. Petitioner No. 1 which is a limited company owned a
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structure of the Constitution, overdrawn its evolution in
the ratio of the majority judgment of the Supreme Court textile undertaking called Minerva Mill Situated in the
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in the landmark case Keshvanand Bharti v. State of State of Karnataka. This undertaking was nationalised
Kerala. and taken over by the Central Government under the
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provisions of the Sick Textile Undertakings
Basic Structure (Nationalisation) Act, 1974, Petitioners 2 to 6 are
&
shareholders of Petitioner No. 1, some of whom are also
The "Basic Structure" doctrine is the judge-made unsecured creditors and some secured creditors.
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doctrine whereby certain features of the Constitution of
India are beyond the limits of the Parliament to amend. 2. Respondent 1 is the Union of India. Respondent 2 is
the National Textile Corporation Limited in which the
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Though the Court held that the power of Parliament to textile undertaking of Minerva Mills comes to be vested
of
amend the Constitution was impliedly limited by the under Section 3(2) of the Nationalization Act of 1974.
doctrine of basic structure, it did not clearly define or Respondent no. 3 is a subsidiary of the 2ndrespondent.
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explain what constituted the basic structure. Basic

feature is explained separately by each judge according
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to their belief and conscience as it was firstly specified 3. On August 20, 1970, the Central Government
ou
in Keshvanand Bharti case. appointed a Committee under Section 15 of the

Industries (Development and Regulation) Act, 1951 to
Significance of the Basic Structure
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make a full and complete investigation of the affairs of

the Minerva Mills Ltd., as it was of the opinion that there
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The basic structure limitation comes out of the

had been or was likely to be substantial fall in the volume
realization that the only way to safeguard the
of production.
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Constitution from opportunistic temporary destruction

and debasement by Parliament is to reject those
nt
4. The said Committee submitted its report to the

amendments which by their sole purpose tarnish its Central Government in January 1971, on the basis of
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identity. which the Central Government passed an order dated

October 19, 1971 under Section 18A of the Act of 1951,
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Basic structure cannot be fully determined except with

authorizing Respondent 2 to take over the management
reference to history, politics, economy and social milieu
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of the Minerva Mills Ltd. on the ground that its affairs

in which the Constitution functions. The judge’s
were being managed in a manner highly detrimental to
consideration about basic structure must meet the
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public interest.
requirement of national unanimity about the basic
structure. Whatever may be the merits or demerits of 5. By these petitions, the petitioners challenge the
judicial review, to an extent, the basic structure constitutionality of Sections 4 and 55 of the
1 AIR 1643, 1967 SCR (2) 762. 2 1973( 4) SCC 225.
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277
or is not, affirmed by ‘hadiths’, in view of the The majority judges Justice Kurian Joseph, Justice U.U
enormous contradictions in the ‘hadiths’, relied Lalit and Justice R.F.Nariman.J gave their judgment
upon by the rival parties. declaring triple as unconstitutional. We will discuss the
(4) ‘Talaq-e-biddat’ is integral to the religious main points what did the three judges said about this
denomination of Sunnis belonging to the Hanafi practice and the why they consider it to
school. The same is a part of their faith, having been unconstitutional.
followed for more than 1400 years, and as such, has
B. JUDGEMENT OF MAJORITY 6
ce
to be accepted as being constituent of their
‘personal law’. JUSTICE KURIAN JOSEPH7
en
(5) The contention of the petitioners, that the
questions/subjects covered by the Muslim Personal He started by saying “What is bad in theology was
ud
Law (Shariat) Application Act, 1937, ceased to be once good in law but after Shariat has been
‘personal law’, and got transformed into ‘statutory declared as the personal law, whether what is
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law’, cannot be accepted, and is accordingly Quranically wrong can be legally right is the issue
to be considered in this case”.
ris
rejected.
(6) ‘Talaq-e-biddat’, does not violate the parameters
He said that “The Holy Quran has attributed sanctity
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expressed in Article 25 of the Constitution. The
practice is not contrary to public order, morality and and permanence to matrimony. However, in extremely
unavoidable situations, talaq is permissible. But an
&
health. The practice also does not violate Articles
14, 15 and 21 of the Constitution, which are limited attempt for reconciliation and if it succeeds, then
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to State actions alone. revocation are the Quranic essential steps before talaq
(7) The practice of ‘talaq-e-biddat’ being a constituent attains finality.51 In triple talaq, this door is closed,
hence, triple talaq is against the basic tenets of the Holy
of ‘personal law’ has a stature equal to other
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fundamental rights, conferred in Part III of the Quran and consequently, it violates Shariat.”
of
Constitution. The practice cannot therefore be set He writes that under Article 25 everyone has right to
aside, on the ground of being violative of the
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possess any religion but this write is not absolute

concept of the constitutional morality, through fundamental right and has some restriction, anything in
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judicial intervention. this Article should not violate

(8) Reforms to ‘personal law’ in India, with reference to
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socially unacceptable practices in different religions, 1. Public order,

have come about only by way of legislative 2. Health, and
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intervention. Such legislative intervention is 3. Morality.

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permissible under Articles 25(2) and 44, read with

entry 5 of the Concurrent List, contained in the He says “Except to the above extent, the freedom
of religion under the Constitution of India is
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Seventh Schedule of the Constitution. The said

procedure alone need to be followed with reference absolute and on this point, I am in full agreement
nt
to the practice of ‘talaq-e-biddat’, if the same is to with the learned Chief Justice. However, on the
statement that triple talaq is an integral part of the
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be set aside.
(9) International conventions and declarations are of religious practice, I respectfully disagree.”
nt
no avail in the present controversy, because the And he held it to be unconstitutional by saying that
practice of ‘talaq-e-biddat’, is a component of
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“What is held to be bad in the Holy Quran cannot

‘personal law’, and has the protection of Article 25 be good in Shariat and, in that sense, what is bad in
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of the Constitution. theology is bad in law as well.”
6Supra note 4, at 273-393 7 Supra note 4, at 273-293
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168
JUSTICE U.U LALIT & JUSTICE NARIMAN8 70 years old and where formed out of India as nation
for only Muslism.
Both the judges held that it unconstitutional under the
violation for Part III of the constitution. They say that IRAQ10
law doesn’t care if it is in Quran or not but if it violates
Part III it is unconstitutional. Iraq is a theocratic State, which declares Islam to be its
official religion. The majority of Iraq’s Muslims is Shias.
They say that “Given the fact that Triple Talaq is On the issue in hand, Iraq amended the code of personal
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instant and irrevocable, it is obvious that any law in the year 1987. It amended and enacted Article 39
en
attempt at reconciliation between the husband and which stated that “When a person intends to divorce his
wife by two arbiters from their families, which is wife, he shall institute a suit in the Court of Personal
ud
essential to save the marital tie, cannot ever take Status requesting that it be effected and that an order be
place.” issued therefor. If a person cannot so approach the
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court, registration of the divorce in the court during the
“it is clear that this form of Talaq is manifestly period of Iddat shall be binding on him.
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arbitrary in the sense that the marital tie can be
broken capriciously and whimsically by a Muslim The certificate of marriage shall remain valid till it is
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man without any attempt at reconciliation so as to cancelled by the court.
save it. This form of Talaq must, therefore, be held
The clear intension of the enactment was that every
&
to be violative of the fundamental right contained
under Article 14 of the Constitution of India”. divorce has to go through the court of law, it can be also
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seen that every marriage should have a certificate of
Therefore, after this case in India the Talak-Ul-Biddat marriage and it remains valid until the court by its order
was made unconstitutional and the judgment Part III cancels it which clearly means that even if a person gives
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clearly mentioned about the practice of Talak-Ul-Biddat divorce he has to has get his certificate cancelled. The
of
in other parts of the world and it also played a major role second Islamic Countries we would discussing is United
in framing of the judgment. So now we would be Arab Emirates
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discussing about the laws and rules regulating this

INDONESIA11
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practice in major Islamic countries.

The Constitution of Indonesia guarantees freedom of
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TRIPLE TALAK IN ISLAMIC

religion to its citizens. However, the Government
COUNTRIES 9
recognizes only six official religions – Islam,
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The practice of Talak-Ul- Biddat which more than 22 Protestantism, Catholicism, Hinduism, Buddhism, and
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Muslim dominated nations have abolished it and Confucianism. Muslims of the Sunni sect constitute its
regulated it yet none of them have made it a criminal majority of the population. On the issue in hand, it has
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offence. Islamic countries like Iraq, Indonesia and the following legislation in place:
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Pakistan & Bangladesh have passed certain legislation

Marriage Regulations 1975 Regulation 9 of 1975
which has regulated this practice. All these countries
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were taken in consideration in the cases of Shyara bano. The Article 14 of the Act mentions that a man married
The reason to study these countries are that the Iraq is
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under Islamic law wanting to divorce his wife shall by a

a Shia Dominated population country and was under a letter notify his intention to the District Court seeking
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monarchy for decades. While Indonesia on other side a proceedings for the purpose of divorce. The Article 15
Sunni dominated population country and has the largest states that on receiving a letter the court shall within
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Muslim population in the world. The reason to study

Pakistan & Bangladesh is that both the countries are just
8
Supra note 4,, at 293-393 10 Supra note 4, at 34
9 Supra note 4, at 33-45 11 Supra note 4, at 41
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169
wherein it could have been categorized as verbal and mentioned. What if a person is from a poor family and
emotional abuse, covered under S.3 of the said Act. This is alone earning member in the family, what will happen
would have opened up the door of multiple reliefs like to the family and who will his wife and children survive?
protection against violence, maintenance, medical Big questions were never answered in the Lok Sabha and
facility, right to residence in the marital home and the bill hurried through for getting a political millage as
compensation, etc. Although the bill talks about the election were approaching.
compensation to the women and also the custody of the It highly recommended that in order to achieve the plan
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child to the women but having the criminal character is of UCC the government could have formed a bill which
itself a very flawed since the Muslim marriage is a civil could have actually transformed divorce procedure of
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contract and hence it must follow the civil procedure. the nation as followed under Muslim countries. The
But there is something which is clear and even the divorce process should have gone through court of law
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government has failed to address the issue that how a and only on the abolition of marriage certificate the
person who is imprisonment for 3 years will provide divorce could take place. This would have saved the
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maintenance to his wife and children, once the husband interest of Muslim women who are ill-treated and justice
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is sent to prison, the women would be deprived of could have been served but legislators had something
shelter and sustenance if the husband is unable to else in their mind. This bill will bring more injustice and
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support in the absence of any constant source of arbitrariness in the society.
income, when behind the bars. This would ultimately
CONCLUSION
&
amount to indirect punishment to the whole family and
mostly the women and children.
We have seen that what is concept of marriage in
The criminal charge will also close the doors of all
possible reconciliations between the parties and this
penal policy can also be termed as interference in the
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Muslim and also talked about the different forms of
divorce. We read that Quran is quite on Talak-e-biddat,
India last year on 22nd August, 2017 made this practice
of
personal matters and this may also lead to have the of divorce as unconstitutional. A bench of five judges
effect of instilling a sense of insecurity and alienation decided on this matter and with a ratio of 3:2 declared it
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among the minority Muslim community. void. Then we also talked about three Islamic countries
(Iraq, Indonesia and Pakistan & Bangladesh). Then we
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Many intellectuals and many Member of Parliament also discussed about the triple talak bill passed by the
have recommended to make amendment in the bill as it
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Lok Sabha in the winter session. This topic has been in

many make more problems and chaos in the Muslim India since many years and after all political fights and
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community then preventing or addressing the problem. heated debate we have reached so far here. But yet many
In Lok Sabha debate the Member of Parliament from things are still left in to make our women equal in our
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Hyderabad raised the issue that as the Act of triple Talak society, give them respect and education would be the
is made void under section 3 of the Act how come a biggest tool to fight against injustice to the women.
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void act is being penalized as void Section 4 means

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something which has not happened and may be termed

as no effective. Then how an act which is non effective
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is penalized. The opposition also raised question that

even if a person is giving triple talak, what are his
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intensions, his intensions are to give divorce to his wife

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but this Act would not address to this problem but

instead make the person only criminal and the issue of
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divorce is not addressed and the marriage remains valid

and the person is send to the jail and he is also asked to
pay maintenance to the wife and is also a non- bailable
offence. So therefore a person is jailed and is asked to
pay his wife and children but from where? That isn’t
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171
REHABILITATION & SOCIAL RE-INTEGRATION OF

CHILDREN IN CONFLICT WITH LAW IN INDIA
SHUBHAM KHANNA
ce
INTRODUCTION juveniles fall in easy prey with criminality. He asserts that
en
adolescents claim to be the highest share in violence due
The word juvenile originates from the Latin word to dashing personality, lack of foresight, uncritical
ud
“Juvenis” which means young. A child who has not enthusiasm, lack of foresight, physical strength,
completed 18 years of age is called a “Juvenile”. Every endurance and desire for adventure. 4
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child has a bright future. They represent the nation and
the coming future of the country. Supreme Court in one SITUATION IN INDIA
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of the landmark judgment titled as Gaurav Jain v. Union
of India1. India is the second largest country in terms of
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population as a developing country and thus it is
India has made and it still continues to make efforts in subjected to the impact of urbanization and
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the present but the efforts may be lukewarm. When the industrialization. Though much is being done in terms
crimes done by the Juveniles are arising alarmingly, is it of legislations and schemes to protect the children, the
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not that the child which is to be nurtured and blossomed efforts aren’t enough as the legislative intent remains
under the safeguard of parents. The presence of careful buried under the statute itself and its implementation
L
child acts has not been in reflected in the last decade as remains just a dream for the children of our country.
it has witnessed a huge leap in the rate of juvenile India has made all efforts and ratified almost all United
of
offenders in India. According to the latest National Nations Convention on Child Rights but the efforts go
Crime Records Bureau, juveniles have been juvenile to drain due to poor implementation procedure by the
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enough to contribute to 1.2% of the total crimes in our authorities while rapid population growth. Due to
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country. Moreover, there has been a rise of 85% immense population, the problems of poverty,
between 2001 and 2011 in the crimes done by juveniles. corruption and illiteracy are cropping up which are
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In the year 2012 there were 27, 936 juveniles who were stumbling blocks for the achievement of targets set by
allegedly involved in crimes including murder, rape, and the legislation. “Sarva Sikhsha Abhiyan” puts up an aim
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rioting, according to NCRB2. It gets tough for the police to educate the people at large while Right to Education
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to deal with juvenile offenders because law possesses a has been made compulsory where all states are trying to
lot of restrictions. One of the six men in the case of make a goal by working towards providing education to
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Nirbhaya gang-rape in Delhi3, was a juvenile committing students Below Poverty Line (BPL) and others. It was
the crime. The juvenile walked away as a free man after also found that those children who were uneducated,
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three years at the reformatory home as per the Juvenile living Below the Poverty Line are suffering from
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Justice Act. The protests and out-cry regarding the violence at home and are likely to commit crime. Unless
failure of doing “Justice” to the juvenile made a change concentrated actions are taken for the eradication of
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in law as this demands were met by reducing the upper these causes such as violence at home, gender
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limit for the juveniles to 16 years, forgetting that discrimination, socio-structural atmosphere, illicit drug
Juvenility is a state of mind and not only a state of body. trade, natural calamities and various others, the problem
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According to Radzinowics, the neglected children and of children living in the streets cannot be solved. What
1Gaurav Jain v. Union of India, [1997] AIR, 3021. 3 Mukesh & Anr v. Govt. for NCT of Delhi & Ors, [2017]
2National Crime Records Bureau (Ministry of Home Affairs), Criminal Appeal No. 609-610.
4 Radzinowicz &Joan King, The growth of crime (1997) 17-
Government of India statistics (2017), 229-256.
20
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172
A CRITICAL ANALYSIS OF SEARCH & SEIZURE

PROCEEDINGS IN INDIA IN THE LIGHT OF ARTICLE 20(3)
DIVYA JOSEPH
ce
INTRODUCTION with the discretionary power given to the courts in
matters related search and seizure covered under section
en
The evolution of Indian judicial system and the prospect 91 and the violation of individual liberties and basic
of judicial scrutiny and interpretation has been democratic principles, in nexus with article 20 (3). It
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particularly enthusiastic in the recent past. The last further distinguishes and classifies written testimonial
decade and half have seen the induction certain unique documents as personal and organisational2 while dealing
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legal concepts and legal philosophies into the country’s with the question of admissibility and draws a parallel
judicial framework. The recent past has seen the right to
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between oral incriminatory evidence and personal
privacy becoming a fundamental right as laid down in documents. It also explores the jurisprudential sanctity
the Puttuswamy case.1 It can also be seen that in several
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of the evolution of the privilege against self-
unrelated cases the Supreme Court in its decision has incrimination and tries to bring out inherent fallacies in
emphasized the importance of the right against self-
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adopting such double standards. In part IV of this article
incrimination and has widened its scope by bringing draws a comparison of the development and correlation
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several involuntary testimonies including narco-analysis of the right against self-incrimination in India with that
and other scientific interrogation method under the of the 4th and 5th amendment right in the United States
ambit of article 20(3). It is in the light these
L of America. In this section the evolution of the same is
developments that this paper takes a fresh look at the dealt by analysing some landmark case laws which
of
search and seizure proceedings in India as laid down solidified these concepts in the US. The final section
under the Criminal Procedure. This paper further goes gives the conclusion of this article.
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on to addresses the double standards adopted by the

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courts in India with respect to the right against self- JUDICIAL EVOLUTION OF ARTICLE
incrimination by blindly favoring one form and 20(3) AND IMPLICATIONS ON SEARCH
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completely rejecting the other that is written testimonial AND SEIZURE IN INDIA
evidences.
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The first landmark case which dealt with the right

It is pertinent to note at this point that this paper neither against self-incrimination is the M P Sharma case3 in
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looks onto the validity of the article 20 (30) nor does it this case and judge bench headed by Jagannadhadas, B.
explore deeply into the admissibility of oral J., looked elaborately into the question of violation
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incriminatory evidences. This article is based on the fundamental right by the search and seizure by an order
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premise that article 20 (3) stands valid in its form, and if of the magistrate under sections 94 and 96 of the CrPC.
it does, it questions the logical reasoning behind the The court in this case differentiated between compelled
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adoption of differential treatment for oral and written production of documents and a seizure of documents as
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incriminatory evidences. Part II of this article engages per statutory legal provision and stated that the former
the various case laws through which the right against is covered under the ambit of article 20(3), but not the
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self-incrimination has evolved it further addresses the latter. And quoted as given below;
logical irregularities in excluding personal documents
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from its ambit. In later part of the same section deals "The order of the court under the statute is in effect a subpoena
duces tecum; and though the penalty for the witness failure to
1Justice K.S.Puttaswamy(Retd) v. Union Of India And Ors. 3M. P. Sharma And Others vs Satish Chandra, District, 1954
2017 10 SCC 1. AIR 300. This case has also made a comment on how Indian
2 Organizational Papers and the Privilege against Self- Constitution framers had not limited the search and seizure
Incrimination, Har L Rev., Vol. 99, No. 3 (1986). proceedings by giving a fundamental right to privacy.
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282
appear in court with the criminating papers is not fine and firther section judges over the years have been over
imprisonment, it is one which may be made more severe, namely, enthusiastic in rejecting even scitific methods of
to have the charges against him of a criminal nature taken for interrogation by bringing it under the ambit of the
confessed and made the foundation of the judgment of the court. concerned article at the same time consistently rejecting
That this is within the protection which the Constitution intended the plea for the same with respect to documentary
against compelling a person to be a witness against himself is, I evidences as has just been discussed. This I believe is a
think, quite clear. "4 highly unreasonable argument since both are a person’s
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individual sphere and both has elements of compelled
The Court in its very sound reasoning held that in a production.
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search and seizure since there is no compulsion on the
accused to do anything and that since he is just a silent BLIND REJECTION DECEPTION
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spectator this act cannot be brought under the purview DETECTION TECHNIQUES
of right against self-incrimination. This raises a question
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as to the very purpose of insertion of such an article into The deception detection techniques used for
the Constitution of India, the jurisprudential impact and interrogation are put to scrutiny as centuries of human
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need for such an article was for preserving the human rights violations were committed against the accused
nature of self-preservation and aiding the human person persons during investigation. This was because the
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from choosing between the fate of perjury and damage done was so much so that even if they were
contempt. 5 Thus this goes against the entire proven innocent, they became physically and mentally
&
jurisprudence behind this right. Another interesting unwell all because of how they were questioned. But the
methods of investigation has come a long way and now
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aspect of this case is that it does look into the aspect of
privacy way back in 1954 although the court affirms in tries to stay away from torturing the accused.
the negative stating that a privacy analogous to the 4th
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It is also important to understand that very rarely a
amendment of the US constitution is not envisaged by
of
criminal/a wrongdoer would own up to their actions
the framers of our constitution and as such cannot be
and its consequences. Therefore, it becomes important
imported into the Indian scenario.6 It is here to be noted
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on the part of the investigators to carefully extract

that this was the reasoning given in this 8 judge bench
information. It becomes restrictive for these
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for rejecting the plea of violation of fundamental rights

investigators if the courts do not consider forensic
during search and seizure in 1954 an opinion which is
evidences such Narco analysis and other DDT’s.
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more than half a century old.

Narco analysis and other DDT’s are considered invasive
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Similarly in the case of V S Kuttan Pillai7 it was held that

to one’s private thoughts, which is why the drugs for the
as long a the accused is not compelled to either
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same, are not administered without the due consent of

participate or be forced to give any evidence the search
the subject. It has also been said that such drugs can
warrant so issued stands constitutionally valid and
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have a lasting effect on the subject but only if it’s not

doesnot interfere with right against self-incrimination as
administered correctly. Yet when the accused consents
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provided under article 20(3) of the constitution. This

and takes the test the results are not given the value of
argument again is flawed by the above-mentioned
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actual evidence instead the results are used to gather

logical fallacy.
court recognised evidences. There have been instances
nt
At this juncture of the discussion attention is to be in the history of the Indian judiciary where because of
technical jargon of admitting results from brain
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drawn to the persistent nature of Indian judiciary to stick

on to the established legal priniciple and not waver from mapping and narcotic tests in courts, the guilty are set
Th
the existing legal philosophy. As will be discussed in scot free for their wrong doings. (Talwar case)
4id at 3., as quted by Jagannadhadas, B. J., in the above case. 6 Supra note 3., this was opinion of Jagannadas B J,. in his
5Robert B. McKay, Self-Incrimantion and the New Privacy, judgement in the above case.
The Supreme Court Review, Vol. 1967 (1967). 7 V. S. Kuttan Pillai vs Ramakrishnan & Anr, 1980 SCR (1)
673.
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283
In the view of Jeremy Bentham no evidence should be correlating it with third degree methods of investigating
given lesser value as the whole purpose of evidence is to officers as the later methods are violative of the Human
seek the truth, therefore by devaluing such evidence you Rights as compiled by the National Human Rights
are taking a step backward from delivering justice. In his Commission.
view the commonly accepted right to silence guaranteed
to us through Article 20(3) is invoked by an accused only In a recent Supreme Court case the involuntary
in situations where he has something to hide. administration of narcotic drugs for the purpose of
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gathering evidence for solving criminal cases was
Through a landmark judgement the Madras High Court discussed and analysed. It had been concluded that such
en
has put the burden of completion of any investigation administration of drugs is violative of fundamental right
within a reasonable time frame on the investigative to life and personal liberty which has been judicially
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agencies. This responsibility if not adhered to, would aid interpreted include ‘right against cruel, inhuman or
the accused individuals to get the benefit of delay. degrading treatment’ and ‘Right against self-
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Therefore it becomes important on the part of the incrimination’ provided under Article 20(3) of the
investigative agencies to extract information from those Constitution, which states that no persons accused of an
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parties who are accused, which like stated earlier may offence shall be compelled to be a witness against
not be possible directly. This drawback has been himself/herself.10
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mitigated by the same court through the permission for
the usage of scientific methods of investigation to seek Administration of narcotic drugs in such circumstances
&
the truth.8 questions the professional ethics medical personnel
involved as the administration of these drugs and
Upholding the above decision, the court in another
judgement reiterated the fact that narco analysis assists
the investigative agencies in solving crimes and thereby
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techniques is violative of an individual’s human rights.
It must be noted that few investigative agencies make
note of potential violations as there were foreseen by the
of
restoring the faith of the public on the social security by National Human Rights Commission in its Guidelines
proving that the one who commits a crime would be in 2000 for the Administration of Polygraph tests.
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scrutinized for the same. Therefore, with the ever rising

trend of crime rates it becomes necessary for the It can be seen through our previous discussions that
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peacemakers to ensure that no individual is deprived of right to self-incrimination was introduced with certain
their constitutional rights and to provide justice to those targeted objectives in mind, to a large extend it did help
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who are violated of these rights. It can be thereby be minimise the unwarranted and undocumented torture of
the accused without any clear basis or evidence. The
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understood that the courts are not of the opinion that

the narco analysis takes away one’s rights as no self- jurisprudential analysis shows that its introduction, in
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incriminatory statements are not admissible in the court. the early 17th centuary was mainly to minimise the
The court thereby ordered the accused to get narco innocent being punished based on confessions made by
io
analysis thereafter adding itself to the list of judgements him, succumbing to undue influence and pressure. 11
Law is an evolving body, and rightly so it should be, laws
nt
backing the use of scientific methods of investigation.9

are made for the benefit of the society to maintain law
er
A main reason why narco analysis is permitted is and order and to deliver justice12
because it is distinct from testimonial compulsion
nt
therefore does not infringe upon the right against self- Justice is a very tricky term; a concept largely debated
even today, an abstract concept which invokes different
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incrimination as provided under Article 20(3) of the

Indian Constitution. It is also important to stop emotions in different individuals. But what remains
Th
8 Dinesh Dalmia v. State, Crl. R.C. No. 259 (2006). 89-121

9 Sh. Shailender Sharma v. State, Crl. WP No. 532 (2008). 12 Sebastian P. A, Narco-Analysis and the Indian Criminal
10 Smt. Selvi & Ors Vs State of Karnataka Cri. 1267 (2010). Justice System, 43 E&PW J, 19-20, (2008).
11 Aldert Vrij ”et al” Psychological Science in the Public
Interest, 11 No. 3 (2010),
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284
constant is that the guilty must be punished after a fair are often the key evidence resulting in either acquittal or
trial. Now, fair trial is another concept which has had conviction of the accused but the moment the evidence
different meanings under different political regimes becomes self-incriminating the courts blindly rejects
during different historical times. For Hitler fair trial theses evidences. This according to me is a very
would have meant concentration camps for all Jews, a disturbing tendency.
trial in front of a court of scholars in many parts of
medieval India. It is in the light of such ambiguities that AMERICAN JURISPRUDENCE: 4TH AND
ce
we look into the concept of self-incrimination and the 5TH AMENDMENT RIGHTS
admissibility of forensic analysis in a court of law. 13
en
The US has long history of evolution of the 4th and 5th
Over the centuries technology has developed, man’s
amendment rights, over the years the courts in have
innovations know no bounds and so has forensic
ud
given various interpretation to the right against self-
science. Criminal investigation has always been
incrimination. The 4th amendment rights guarantees
extremely challenging, especially in cases where there are
pr
rights against unlawful search and seizure. The privacy
no direct eye witnesses and the trial solely depends on
standard for the ascertain the application of the right
ris
circumstantial evidences.14 This often leads to acquittal
against self-incrimination was established the case of
of the accused on account of insufficient evidence, a lot
Boyd v. United States 19 . Justice Bradely in this case
Ju
of guilty people get to evade the law and get away with
condemned “any forcible and compulsory extortion of
the crimes they commit.15 In this scenario the purpose
a man’s... private papers” in his learned opinion any such
&
of law to render justice gets defeated, we can blame it
production would be against the principles of free
on human inefficiency but if this happens in spite of
government. It can be said that there has been an hour
aw
having a viable solution staring straight at our face, then
glass model growth of rights in US, during its
I am at a loss as to what it can be called. It’s said that
introduction all forms of incriminatory evidences were
human beings have a tendency to resist change, but this
L
covered under the right against self-incrimination but
has never bought us any good ever. Change is the
of
through various case laws the courts slowly constricted
inevitable law of the nature and it ensures the survival
its use, in the case of fisher v United States20 the court
of only those who can and are willing to adapt. 16
al
there no longer use privacy as a primary principle for

Similarly technology today has paved way for new
invoking the 4th amendment rights rather its whether the
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scientific avenues for finding the truth and extracting

evidence is compelled and testimonial.
evidence, unfortunately courts today eclipse these
ou
evidences by denying their admissibility and relying on Thus, through later case laws including the Bellis v.
extremely outdated concepts like self-incrimination. 17 United Sates 21 the court further elaborated on the
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Some of these techniques and their reliability are concept of privacy and deliberated on how it shall not
na
analysed in detail below. be applied if the acquired document is from the

extremely privatum of sanctum of an individual. Thus,
Scientific evidences are increasingly being used in
io
we see an evolution of the amendment right. It is also

criminal investigation as well as evidence in court to
nt
established in the US that the 5th and 4th amendment are

establish guilt or innocence or even to link one crime to
supplementary and complimentary to each other and
another18 Expert witnesses are respected and valued and
er
these many types must be read one with the other. This
nt
13Mark Hansen, True Lies: Cutting-Edge Technology Has 16Id at 13.

eI
Renewed The Search For A Better Lie 17 Charles R. Honts & Mary V. Perry, Polygraph Admissibility:
Detector. Some Show Promise, But They Have Yet To Be Changes and Challenges, 16 Law and Human Behavior, 357-
Th
379 (1992).
Tested In Court, 95 ABA J. 56-62 (2009). 18 Id at 16.
14 Paul A. Peterson, Character of the Criminally Accused:
Admissibility of Psychiatric Testimony, 42 California L Rev, 19 116 U.S. 6I6 (1886).
880-885 (1954). 20 425 U.S. 391 (1976).
15 Helen Silving, Testing of the Unconscious in Criminal 21 4I7 U.S. 85 (I974).
Cases, Harvard L. Rev, 683-705 (1956)
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285
shift from pure privacy argument to compelled and

testimonial gave rise to concept of differentiation of
personal and organisational documentary evidence. 22
Any organisational documents are known to a third
party and hence it cannot be claimed to be a personal
document to be covered under the 5th amendment, at
the same time personal documents like the personal
ce
computer and the mobile data including browsing
history are a person’s private domain, compulsion for
en
the production of the same will be covered under the
self-incrimination clause
ud
CONCLUSION
pr
Thus it is to be considered that the right against self-
ris
incrimination has undergone various evolutionary
changes over the years, through judicial interpretation,
Ju
it is growing and evolving even now, but in the light of
recent legal development in India including the
&
Puttuswamy judgement which declared the right to
privacy as a fundamental right, it is required that the
right against self-incrimination be re-examined. been
enough evidence and just because he doesn’t want to
admit to the crimes he has committed. The right against
L aw
of
self-incrimination was introduced with right intentions
and true to their times it was required for the delivery of
al
justice at that time. The whole point of having laws and

law enforcement system is to uphold truth and deliver
rn
justice to the masses. Today that is possible through

ou
advanced research and technologies, it is extremely sad

that we are not able to move past our predicaments are
lJ
still stuck with the ghosts of the past. Search and seizure
proceedings in India be revamped in consonance with
na
the fundamental right to privacy. The right against self-

incrimination the validity of scientific evidence and
io
acceptance of documentary evidence needs to be

nt
critically analysed by the judiciary, the logical fallacies

resulting out of the above-mentioned situation to
er
addressed immediately for a mature and informed legal

nt
regime of right against self-incrimination.

eI
Th
22 Supra note 2, p 640.
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286

SHREYANSH AJMERA
INTRODUCTION However, things turned out to be worse. The police

officials started using their power of encounters in a
ce
India is the largest democracy and the third largest wrong way. Soon, these encounters became “fake
economy in the world. It is still considered to be a
en
encounters”. “Fake Encounters” are nothing but cold
developing nation with lots of political and social blooded, brutal murder by persons who are supposed to
ud
developments taking place almost all the time. These uphold the law. The police officials are using this power
changes not only develop the society but rather also give and are doing cold blooded murder in the name of
pr
rise to a lot of social complexities which in turn has led encounters. In such cases, the police forces make some
to an immense growth in the crime rates. The State has good plans and make the plotting of the scene so
ris
taken the aid of the police authorities and the judiciary beautifully that it looks like as if the murder was caused
so as to curb these crime rates. Various laws have been in the heat of the moment and it wasn’t a pre-planned
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enacted by the State in pursuance of the same, and the murder. They take the justifiable excuse of self defence
giant task of arresting the criminals and summoning which is provided under Section 96 of the Indian Penal
&
them before the court of law have been handed over to Code, 1860. The grey area between self defence and fake
the police officials. These officials have not lived up to encounters will be provided further in my paper.
aw
the expectations and have failed bizarrely in arresting the
criminals. The Courts, on the other hand, have also WHAT IS THE GREY AREA BETWEEN
L
failed to provide adequate punishments to the criminals SELF DEFENCE AND FAKE
ENCOUNTERS?
of
and many a times they end up getting no punishments
for their criminal acts. In order to deal with such
There is no denial in the fact that there has been a
al
problems, the police forces have come up with a

retributive method of providing justice to the criminals, tremendous increase in the amount of crime rates in the
rn
and thereby gave rise to “extrajudicial killings” which is past few years. The numbers of police officials that have
also popularly known in India as “encounters”. been killed by these criminals have also increased
ou
significantly in the recent years. The Police forces

An encounter is a term that is used to describe the therefore, use self defence as an excuse of committing
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extrajudicial killings in which the police forces or the murders of the criminals. These officers kill the innocent
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armed forces are involved. Encounters were very rare people and take the excuse of self defence. Self defence
before the 1990s. It was only after this that they became is provided under Section 96 of the Indian Penal Code,
io
so prominent in the Indian society. There has been a 1860.

tremendous increase in the amount of crime during the
nt
1990s and the police forces were unable to catch hold Section 96 states that “nothing is an offence which is
done in the exercise of the right of private defence”.1
er
of the criminals. This was especially taking place in

Bombay, wherein the police started to gun down the Whereas IPC Section 100 enumerates the situations in
nt
underworld and they used encounter killings to cripple which the right to private defence of the body extends
to causing death namely, first where an assault is such as
eI
their criminal activities. The police officers started to

receive bravery awards for the same and they started to may reasonably cause apprehension that death will
otherwise be the consequence of such assault. Secondly
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be known as “encounter specialists”. They believed that

by doing this, they were able to provide speedy justice such an assault as may reasonably cause the
to the aggrieved people. apprehension that grievous hurt will otherwise be the
consequence of such assault. The basic principle under
1
Ratanlal & Dhirajlal, The Indian Penal Code, 35th Edition
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287
Section 96 is that when an individual is faced with a wherein the police officers are not trapped in any such
danger of his life or limb, he can do whatever means to circumstances and they end up killing the other person
protect himself from the danger which can also lead to for no reason. These situations are more prevalent as
the death of the other person. So even if the police compared to aforesaid mentioned situations. The police
officers have slightest of doubt in their mind, they kill officers are of the opinion that if they do not kill the
the criminals without even giving a second thought and criminals, they will end up getting convicted for their
they are justified in their actions as they are doing it for acts and no punishments can be given to them for their
ce
the purpose of self defence. It is a well-established fact acts. They believe that if they do not kill the people, then
that when a person is thrown into a situation wherein he the people won’t have any fear in their minds and they
en
feels that there is some eminent danger to his life or will continue doing what they were doing. This is the
limb, law does not require him to act in a prescribed main reason why the police officers are engaging into
ud
manner and he can use any amount of force that he cold blooded murders of the innocent people also just
needs in order to protect himself. Self-preservation is a to make sure that the people are afraid of them. Also,
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basic human instinct and you cannot do anything in the government is providing bravery awards to the
ris
order to protect yourself when you are confronted with policemen who are engaged in the encounters which in
such a situation. turn act as another reason for the police officers to
Ju
engage in such fake encounters. The policemen kill
The right of private defence can only be exercised by innocent people in the name of encounters and take
those people who are suddenly confronted with the
&
bravery awards from the government and increase their
necessity of averting an impending danger and not of name & fame. They are not even put in question before
aw
self-creation. This right can also be exercised in situation the Court of law as it is always an assumed fact that the
wherein the person feels that there is eminent danger to policemen are in danger and that is why they kill the
his life and if he doesn’t act properly, he could be in
L criminals. Apart from this their acts are as not
danger. Therefore, no actual commission of act is questioned by any individual because they also have the
of
necessary from the other party and one just has to prove same presumption that since they are public officers and
the actual scenario of the situation. The burden of proof their duty is always to protect the people and therefore,
al
in cases of self defence need not be proved beyond if they do any act like this, it must have been done while
rn
reasonable doubt and is discharged by preponderance of delivering any public justice. But, however, this is not
probability. Hence, in almost all the cases wherein the the case. There have been approximately 2560 cases
ou
police officers feel that his life is in danger, he uses the registered for encounters since October, 1993 and out
right of private defence and is given an excuse by law. of those 1224 cases has been found to be fake. This
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He is deemed to be in danger in almost all the cases and means that every second police encounter is fake and
therefore, he is always in a better position to use such a
na
then also they take the defence of private defence and

right of private defence. Many a times, situation may end up getting no punishments for their acts.
arise wherein the police officers are charged for murder
io
under Section 300, but then also take the defence of The sanction for encounter is partially expressed also in
nt
exception 3 of Section 300, wherein if the offender is a other statutes as follows- Criminal Procedure Code
public servant who is acting for the advancement of Section “46 (2) If such person forcibly resists the
er
public justice, exceeds the power given to him by law, endeavour to arrest him, or attempts to evade the arrest
nt
and causes death of a person by doing an act which he, such police officer or other person may use all means
in good faith, believes to be lawful and for the proper necessary to effect the arrest. (3) Nothing in this section
eI
discharge of his duty, then he will not be held liable for gives a right to cause a death of a person who is not
the offence of murder under this Section. The accused of an offence punishable with death or with
Th
authorities take this defence too, apart from the defence

of private defence.
However, it is believed that this situation of self defence

is not true in all the circumstances. There are situations
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288
imprisonment for life”. 2 It is quite evident from the WHY IS THE GUIDELINES ISSUED BY
words of the section that law provides the police NATIONAL HUMAN RIGHTS
authorities with all the powers to arrest a person; COMMISSION HAVE NOT BEEN
however they only have one restriction with them that ADOPTED?
they cannot use this power for minor offences not
punishable with murder or life imprisonment. If this In our country, the matters pertaining to encounters are
section is widely interpreted, it is capable of giving the usually dealt by the police authorities themselves. There
ce
police authorities the arbitrary power of using any means are no other third parties to look and investigate into
to arrest a person which can even be killing the other these matters. Hence, even if the encounter is not legal
en
person. This power of the police authorities is easily and is incorrect, then also no case is registered against
capable of being misused. This section gives permission them and they easily escape from the matter. No
ud
to the police officers to even use the firearms in cases of complaint is being registered against them in most of the
emergency. cases. Even if the case is registered against them, then
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also no proper investigation is conducted against them
Therefore, it is not wrong to say that almost half of the as it is usually the police officers themselves who
ris
encounters taking place in our country are fake investigate into these matters. Therefore, in most of the
encounters and then also the police officers are not cases they escape punishments due to the fact that no
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getting any punishments for their acts. Despite of the proper investigation is carried out.
fact, that almost everyone knows that most of the
&
encounters are fake encounters, then also the officers For this problem, the National Human Rights
Commission of India has issued some guidelines as to
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take the defence of section 96 of Indian Penal Code and
no one is there to stop them from taking such a defence. how the investigation is to be carried out in these
The courts still believe their stories to be true. It is also encounter cases. The NHRC has clearly wanted to bring
L
disheartening to see that how the officers who have a change in the investigation pattern of the encounters
of
been given the major task of preventing crimes in the that are taking place in the country. They have suggested
country are busy killing innocent people in the name of that the investigation should be carried out by an
al
encounters. Not only this, the innocent people who are independent agency other than usual police authorities.
They have suggested those independent agencies like
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killed by the officers are also being portrayed as

criminals and the officers create such a situation wherein Criminal Investigation Department (CID) should look
ou
it is believed that the victim is the main culprit as the into such matters and should carry out the investigation
officers prove that the encounter took place only for for these encounters. They are also of the opinion that
lJ
protecting oneself. They make up such good stories and there a proper case report has to be made and submitted
prove that the other person first initiated the firing and to the magistrate within 3 months of the encounter and
na
then only they killed the other person. Also, they even the report should also contain the reasons for the death
hurt themselves during the fake encounters and receive along with the post-mortem report. It should even
io
bravery awards for the same. Therefore, at last I would include the proper facts of the case and how the
nt
say that there should be a more proper enquiry encounter was initiated by the officer.
conducted on these encounters and the right of self
er
However, these recommendations have not been strictly

defence should not be provided to the officers so easily.
adhered to by the officers and they have still not been
nt
There should be more stringent laws for the same and it

implemented. These recommendations should strictly
should only be given away in exceptional circumstances
eI
be implemented so as to make sure that there is proper

to these officers.
conduct of trial and justice is properly served to all the
Th
victims. Also, in order to uphold the principle of our

nation which in turn provides for free and fair trial to
everyone, these recommendations are must. This is
2
The Code of Criminal Procedure, 1973
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289
because an independent authority will definitely conduct information of the report. Despite of the fact that all
the enquiry and investigation in a much better manner these important documents are missing, the Courts have
as compared to the parties who are interested in the case. still not considered it important to ask for the reports
Also, if a proper report is made and submitted before and more often they give judgments without even asking
the magistrate, then the magistrate will also be able to for such documents and the officers escape
analyse the matter properly and will be able to give punishments due to this.
proper justice to the ones who are in need of it.
ce
Henceforth, these guidelines should be adopted as There have been so many cases that have been reported
quickly as possible in the Indian Criminal system. These in our country from the past so many years which are
en
guidelines have not been adopted till date just because clearly fake encounters. The cold blooded encounter of
of the mere reason that the officers are afraid that if the Cherukuri Rajkumar, popularly known as Azad,
ud
investigation is conducted by independent agencies, spokesperson of the Communist Party of India
then their lie will be disclosed in front of the entire (Maoist), along with free lance journalist Hemchand
pr
society and people will know that these officers are not Pandey is a popular instance of a fake encounter. Azad
was killed in the forest of Asifabad in Adilabad district
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doing their work properly.
of Andhra Pradesh. The police officials in their report
WHY IS THERE A DRAWBACK IN THE have clearly mentioned that there were some Maoist
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LEGISLATIVE FRAMEWORK WHICH activities going on in the hills and due to the firing from
AFFECTS THE JUSTICE MAKING IN the other side, they also opened up firing which led to
&
OUR COUNTRY? the death of the Maoist leader. As per their claims, the
aw
bullet was shot from a distance and the bullet entered
The encounters are not only sanctioned indirectly in the body from the lower vertebra. However, the Post-
laws but are also considered an important element by mortem report clearly establishes the fact that the bullet
L
the Indian courts to remove the antisocial elements was shot from a near distance and it entered the body
of
from the society. India’s judiciary has some way or the from the above chest and it went out through the lower
other always supported these encounters. They are vertebra. Also, the officers themselves messed up things
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always of the view that encounter is one of the best ways as in front of the media they accepted the fact that the
to remove the criminals from the society. They presume
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dead person was Azad and a journalist but however, in

that even if the accused are given some punishments by their report they have clearly mentioned that the body
ou
the Courts, then also they will easily be taken out from wasn’t identified. Not only this, the investigation carried
the prison by the politicians. This is the main reason why out by the CBI was also not proper and they gave a clean
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the Indian Courts believe that encounter is the best way chit to the officers. The case was closed and no justice
to remove crimes from our society. was given to Azad and the officers were left without
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getting any punishments.

However, this is not what is happening in our society.
io
In India, these police officers are engaging more into In 2012, five persons, who were believed to be bank
nt
fake encounters rather than doing some real and true robbers, were killed in a shootout in Velachery. In this
encounters. The total no of fake encounters have been case, the police officers did not make proper
er
more as compared to the real encounters. But then also investigation of the matter and were keener on closing
the Courts haven’t been able to provide justice to the the case. Furthermore, the suspects who were killed
nt
victims of such a trap. The police officers have more were unarmed and despite of this the officers were
eI
than often managed to escape from punishment after successful in proving it to be a case of private defence
committing murder in the name of encounters. They and they again somehow managed to escape the liability
Th
have always taken the defence of private defence and the arising out of the cold blooded murder. No investigation
courts have always accepted it without even asking for was carried out for the encounter and the officers
proper information. The report submitted before the themselves closed the case and proved the dead persons
judicial magistrate does not even contain the full details to be bank robbers. Ishrat Jahan, a 19 year old student
of the crime and it does not even has the full was also killed in an encounter by the police officers in
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290
Gujarat. This killing is also a clear cut case of a brutal in High Court of J&K, which upheld the orders of CJM,
murder and was definitely a fake encounter. The student so the army appealed in the Supreme Court. The
was killed by the officers even before conducting proper Supreme Court said that filing of a charge sheet does not
investigation whether she was actually a terrorist or not. amount to institution of a prosecution or filing of a suit
National Investigation Agency has clearly pointed it out or initiating a legal proceeding and hence does not
that there was no direct contact by any terrorist group require a prior. The Supreme Court also held Armed
with her and hence she cannot be assumed to be a Forces (Special Powers) Act, 1990 in high esteem which
ce
terrorist. The police killed the innocent girl and named states that that the armed forces under the central
her to be a suicide bomber which again is the main command cannot be prosecuted without sanction. It is
en
reason behind her killing. However, they are still unable therefore also pointed out that no sanction has ever
to prove her relationship with any terrorist organization. been granted by the Government of India to prosecute
ud
But however, they have still exempted themselves from the armed forces of our country and the same has to be
getting any punishments for the murder that they have brought in.
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committed of a 19-year old college student.
Despite of having so many cases pertaining to fake
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There is also a very famous case of fake encounter which encounters in the recent years, the lacuna in the
took place in the year 2015. In the Seshachalam forest legislative domain is still not resolved. The judiciary is
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of Andhra Pradesh, the police officers gunned down 20 still not able to provide proper punishments to the
woodcutters suspecting them to be smugglers. They police officers for their acts and they still escape from
&
claimed that it was only due to the attack from the other liability. The main reason behind this is the fact that the
aw
side that they decided to use force from this side. They judiciary is still of the view that encounter is a good
also claimed that the death wasn’t caused from a near method of removing these antisocial elements from the
distance and was only caused from a far off distance. society. However, along with this belief they even fail to
L
However, the post-mortem reports clearly proved that consider the fact that such power can be misused by the
of
the death was caused from a near distance and there police authorities. Therefore, there should be some
were also burn marks and bullet marks in the body of amendments that have to be made in the existing laws
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the deceased which clearly proves that the deceased wherein the policemen will be afraid to do any illegal
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persons were tortured before death. However, the murder and continue to behave in a proper manner.
officers denied all such allegations put forth against Also, the Courts should be stricter and evaluate the
ou
them and escaped from any kinds of punishment. documents submitted before them more properly than
in normal circumstances. The courts should also
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The next case pertaining to fake encounter is the appoint some independent authorities to investigate into
Pathribal Fake Encounter Case. On 20th March 2000, 26 these matters and should make sure that the
na
people of the Sikh community were killed by unknown investigation that is carried out is proper and not fake or
gunmen in Chattisinghpora village. The Indian Army absurd.
io
along with J&K police claimed to have killed 5 foreign

nt
terrorists responsible for the killings in Chattisinghpora CONCLUSION

village. At the same time, 5 civillians were also reported
er
missing and after exhuming the bodies of supposed There is no doubt in the fact that the policemen are
terrorists, it was found that they were in fact the missing given the solemn duty to protect the people and to
nt
innocent civilians. CBI filed a charge sheet in the court uphold the laws of the nation. They are no doubt given
eI
of chief judicial magistrate (CJM). It held that the Army the power to carry out their duty in any prescribed
had an option to choose a court martial or a regular manner which they may deem fit. But, however, the
Th
criminal court as per Section 125 of the Army Act, 1950. officers have misused this power given to them by law.
It also held that no prior sanctions from the They have continuously indulged themselves into fake
Government of India to try the army officer were encounters in the past few years and the no of such
required for a court martial and also that charge sheet instances have gone up at a pretty high rate than what
can be filed without a prior sanction. The army appealed was expected.
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291
It is also not good to see that the investigation is not

carried out properly of these encounters. The state
should come out with more stringent laws in order to
make sure that investigation is carried out more properly
by the investigation agency, irrespective of whether it is
the police authority itself or it is some independent
authority who is conducting the investigation. Also, it is
ce
to be noted that the Courts are also not taking these
cases seriously and they do not even check whether the
en
reports submitted before them is proper or not.
ud
There is no doubt in the fact that encounter is one of
the best ways to remove the anti-social elements from
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the society, but it is not the only way to do that. The
officers can only indulge into encounters for the sole of
ris
purpose of private defence wherein it is extremely
necessary and they were left with no other option than
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to do that in order to maintain peace and harmony in
the society. But it is very much evident and it is quite
&
obvious also, that the policemen are doing encounters
aw
with an ulterior motive of either taking revenge from the
criminals or for getting name & fame in the society. L
It is the solemn duty of the State to encourage the
of
officers to maintain peace & harmony in the society. For
this, they should even provide motivation to the officers
al
by giving those medals and awards for their bravery.

But, however, it should also keep in mind the fact this is
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not the sole purpose for their existence and they should
more often than not keep a check on the officers and
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also punish them for the misuse of the powers.

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Therefore, I would like to say that the amount of fake

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encounters can only be reduced if the State comes up

with more stringent laws pertaining to the investigation
io
and also if they tend provide harsher punishments to the

ones who are misusing the freedom given to them by
nt
the laws.
er
nt
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292
ARTICLE 370: AN INSIGHT INTO THE

POLITICS OF AUTONOMY
ADITYA RATHI
ce
“Control leads to compliance; autonomy leads to engagement” (3) Such an extension can only be done with the prior
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"concurrence" of the government of J&K;
- Daniel H. Pink
ud
(4) Under Art. 370(3) the President is empowered to
INTRODUCTION make an order abrogating or amending it only if the
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Constituent Assembly of the State recommends the
The Constitution of India extends to the whole of
same.
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India but the State of Jammu and Kashmir. By virtue
of Article 370, some sort of autonomy has been Art. 370 contains the non-obstante clause and,
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provided to the State of J&K and, the Constitution has therefore, its application is independent of any other
been made inapplicable directly to the concerned State provision of the Constitution. This prelude has been
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unless applied with certain modifications by way of rarely used in the rest of the Constitution.
Presidential Order. It has, to some extent, limited the
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legislative power of the Union Parliament in regard to The State of J&K was exempted from the application
J&K. This has resulted into discrepancy between the of Part VII of the Constitution as unlike other Indian
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laws in J&K and other parts of the country. States, the State of J&K refused to accept the
of
application of the Indian Constitution in its entirety.
WHAT IS ARTICLE 370? Since, the Constitution (Seventh Amendment) Act,
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1956 has repealed Art. 238 and Part VII itself, the
Art. 370, which was included in Part XXI of the reference in sub-clause (a) of clause (1) of Art. 370 to
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Constitution, provides for the creation of an the non-application of Art. 238 to J&K State is
autonomous status for the State of J&K. It is not a superfluous today. But the consequential change in
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standalone Art. and is accompanied by other Art. 370 has not been carried out. The implication of
provisions creating autonomy arrangements for other clause (1) (a) of Art. 370 today is that the provisions of
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States like Nagaland, Sikkim, Assam, Manipur, etc. as Part VI of the Constitution do not apply to the State of
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well. J&K which has its own Constitution.

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Art. 370 can be said to contain following special Clause (1) (b) of Art. 370 refers to the legislative
provisions for J&K: authority of Parliament over the State of J&K.
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Paragraph (i) and (ii) of sub-clause (b) of clause 1

(1) Exemption for the State from the provisions of the
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provides that the laws made by the Parliament, on

Constitution of India and the option to have its own
matters enumerated in the Union and the Concurrent
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Constitution within the Indian Union;

List, will be made applicable to the State of J&K only
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(2) Limitation on the legislative power of the after ‘consultation’ or ‘concurrence’ of the State
Parliament of India to three subjects, namely, defense, government, depending on the subject matter of the
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external-affairs, and communications. Nevertheless, law. According to Para (i), Parliament has power to
other provisions of the Constitution and the scope of make laws on matters corresponding to those
the legislative power can be extended under certain surrendered under the Instrument of Accession (i.e.,
circumstances; defense, foreign affairs and communications) . The
elaboration of these subjects in terms of the entries in
the two Lists and other ancillary matters was to be
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293
done by the President in consultation with the State the widest amplitude so as to include an amendment
Government. Under Para (ii) of sub-clause (b) of and even a radical modification. Thus, the President
clause 1 the President may, with the concurrence of the has power to vary, amend or modify a Constitutional
Government of J&K, provide for subsequent provision, in its application to the State of J&K, in any
enlargement of the Union’s power over the State, if way s/he deems necessary. Moreover, Art. 370
deemed necessary in the interest of the Union or State. authorizes the President to modify a Constitutional
The government of the State, here means the person provision not only when it is applied to the State for
ce
for the time being recognized by the President on the the first time, but even subsequent to its application.
recommendation of the Legislative Assembly of the Art. 370 is a special provision for amending the
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State as the Sadar-i-Riyasat (now Governor) of J&K, Constitution in its application to the State of J&K.
acting on the advice of the council of ministers for the Art. 368 does not curtail the power of the President
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State for the time being in office. Sub-clause (c) of under Art. 370. But it may be noted that any
clause 1 merely provides for the application of Art. 1 amendment to the Constitution made in accordance
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and 370 to the State. This means that these two with Art. 368 could have no effect in relation to the
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provisions apply on their own, without any Presidential State of J&K unless applied by the Order of the
Order issued in consultation with the government of President under clause (1) of Art. 370 with the
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State. Art. 1 read with Schedule I defines the territory concurrence of the State Government. Thus, Art. 370
of India and, therefore, the State of J&K has been empowers the President to adapt the Constitutional
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included as an integral part of the territory of India. provisions applied or to be applied to the State of J&K
But it is Art. 370 which makes Art. 1 applicable to J&K in the light of the situation existing in the State from
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and this is not without legal significance and time to time. This is a flexible arrangement under
consequence. Mr. G.L. Nanda, therefore, rightly L which the Constitutional position of the State can be
pointed, as Union Home Minister on 4th December, defined from time to time. Art. 370 clearly recognizes
1964 in the Lok Sabha, that it would be “totally wrong the special position of the State of J&K as a
of
to assume that with the repeal of the Art. 370, all Constituent unit of Indian Union.
Constitutional provisions would automatically apply to
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J&K”. Sub-clause (d) of clause 1 of Art. 370 Clause (2) of Art. 370 provides that if the Government
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empowers the President to apply other provisions of of J&K concurs for the extension of the powers of the
the Constitution to the State by way of an order issued, Union beyond the matters covered by the Instrument
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subject to the following conditions: of Accession, or for application of the Constitutional

provisions other than those specified in the Instrument
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(1) If the order relates to matters specified in the of Accession, before the convening of the State
Instrument of Accession, then consultation with the Constituent Assembly, it should be placed before such
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Government of J&K is necessary; and Assembly for such decision as it may take thereon.
While the Constituent Assembly of J&K was on the
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(2) If the order relates to matters not specified in the anvil, there was only an Interim Government
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Instrument of Accession, then concurrence of the State functioning in the State. Hence, it was a justified
Government is necessary. stipulation of this clause that concurrence given by the
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interim government was required to be placed before

Such an order can be issued subject to such
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that Assembly for decision after that Assembly had

‘exceptions’ and ‘modifications’ as the President may
been convened. Thus, in effect the power to extend
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by order specify. The meaning of the expression

the scope of the Union power or otherwise change the
‘exception’ implies that the President can provide that
basis of relationship of Kashmir with India was vested
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a particular provision of the Constitution would not

in the Constituent Assembly of the State. In 1957,
apply in relation to the State of J&K. Thus, the
Constituent Assembly of the State was dissolved,
President had been given power not to apply a
hence, Art. 370 (2) has exhausted itself.
particular provision of the Constitution altogether in
that State. The word ‘modification’ is also to be given
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294
Clause (3) provides that Art. 370 can be made proposed to enter into a Standstill Agreement with
inoperative or its operation can be modified, or them. The Agreement was accepted by the Pakistan
excepted by public notification issued by the President. but Indian authorities wanted to have further
However, such notification can be issued only with the discussions. Nevertheless, the Pakistan government, in
prior recommendation of the Constituent Assembly of violation of the agreement, allowed Afridis, soldiers in
J&K. The first Para of clause (3) permits a mere plain clothes, and desperadoes with modern weapons
executive notification to cease the operation of a to in-filter into the State, first in Poonch and then in
ce
provisions of the Constitution or to restrict its Sialkot and finally in mass area adjoining Hazara
operation in the country it is, thus, a revolutionary District. The infiltrators continued to march towards
en
provision in a parliamentary democracy. Since, the Srinagar, forcing the Maharaja to seek help from India
Constituent Assembly of the State exists no more, Art. and accede the State to India. The Instrument of
ud
370(3) is no longer operative. The continued Accession provided for the accession of the State of
application of Art. 370 was questioned in Sampat J&K to India, allowing the Indian Courts, Legislature
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Prakash v. State of Jammu and Kashmir. It was argued and other authorities to exercise powers in relation to
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that Art. 370 could have been intended to remain J&K. But the accession was subject to following
effective only until the Constitution of the State was conditions:
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framed and thereafter it must be held to have become
ineffective. Supreme Court while rejecting the  Legislature of India will not be authorized to make
laws for compulsory acquisition of land in J&K.
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argument observed that since the Assembly had made
no recommendation as to abrogation, it should be held  The terms of the Instrument of Accession shall
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to be continuing in force because the situation that not be varied by any amendment of the Act or the
existed when this Art. was incorporated in the Indian Independence Act, 1947.

Constitution had not materially altered, and the
L J&K shall not bound to accept any future
purpose of introducing this Art. was to empower the Constitution of India.
of
President to exercise her/his discretion in the  Legislative power of the Dominion shall be limited
application of the Indian Constitution while that to subjects of Defense, External Affairs,
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situation remained unchanged. Communications, and Election to the Dominion

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Legislature.
HISTORICAL DEVELOPMENT AND
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REASONS FOR THE ADOPTION OF As far as the legal validity of the Instrument of
ART. 370 IN THE CONSTITUTION Accession is concerned, Maharaja Hari Singh, being
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the ruler of the State of J&K, was legally empowered to

enter into such an agreement with the Dominion of
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A proper understanding of any legislation requires the

understanding of the legislative history of the India. The circumstances under which the agreement
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enactment. So, the reasons for the incorporation of was signed, apparently due to the violation of the
Art. 370 have been deliberated hereunder. Standstill Agreement by Pakistan have been discussed
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earlier. In any case, the Instrument of Accession is in

The historical background of Art. 370 dates back to the the nature of a treaty between the two states.
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accession of Princely States, which according to the

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terms of Indian Independence Act, 1947 had the It is in this backdrop; the role of the United Nations
option to choose from either of India or Pakistan or to becomes apparent. Under Art. 35 of the Charter of the
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remain free as independent States. Many of them made UN, the Government of India requested the Security
their option with either of the two and those who Council to call upon Pakistan to withdraw from J&K.
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failed to make their choice were annexed forcefully. The Security Council passed a resolution prescribing-
J&K, being the province with distinct geographical and
cultural heritage, wanted to have friendly and cordial  CEASE-FIRE ORDER: The Governments of
relations with both India and Pakistan and, therefore, India and Pakistan to issue, separately and
simultaneously, a ceasefire order to apply to all
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295
forces under their control and in the State of J&K government administering subjects of national interest
as of the earliest practicable date. and a number of governments of the component units
 TRUCE AGREEMENT: Government of Pakistan of federation called the state or provincial governments
to withdraw its troops from that State and to which administer subjects of essentially local interest.
secure the withdrawal from the State of J&K of There may be some subjects concurrently administered
tribesmen and Pakistani nationals who have by both set of governments. A federation ordinarily
entered the State for the purpose of fighting. employs a written and usually rigid constitution which
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embodies the distribution of subjects between the two
But these being only recommendatory measures of the set of authorities. The constitution is made rigid in
en
Security Council, under Chapter VI of the Charter of order that neither the central nor the state
the UN, were never given effect in practice and the governments may alter the constitutionally ordained
ud
situation got worse. distribution of powers acting alone, thereby allowing
the national and state governments to operate
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After the accession of J&K to the Dominium of India
effectively within their constitutionally allotted sphere.
there have been disturbance of law and order situation
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Federations can be categorized into two-
in the State and wide spread violence. At the same
time, the process of drafting of a Constitution for  Federation by Centripetal forces; and
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independent India was being carried out by the
 Federation by Centrifugal forces.
Constituent Assembly and in the late 1949, when the
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final draft of the Constitution was to be adopted, When a pre-existing unitary state is loosened into
Jawaharlal Nehru pushed for Art. 370. On an autonomous units to form a federation, a centrifugal
opposition made by Maulana Hasrat Mohani for
discrimination between J&K and other States it was
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claimed that the situation of former was different from
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federation such as Canada comes into existence. A
centripetal federation, on the other hand, is one when
pre-existing independent states unite together to form
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the latter, keeping in view the terms and conditions of a federation, as in the case of United States of America.
the Instrument of Accession and the ongoing war Distinction can be made between two federations on
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within the limits of J&K State. The conditions in the the basis that a centrifugal federation is the creation of
State were very unusual and abnormal. Further, the an existing central authority to divide itself into smaller
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Government of India had the commitment for units for administrative efficacy while, a centripetal
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providing the people of Kashmir with an opportunity federation is a result of agreement between some small
to exercise their right to self-determination and to independent states to merge themselves into a larger
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determine, by way of a Constituent Assembly, the and powerful State, for the purpose of their defense
Constitution of the State as well as the sphere of Union and security from other States. Since, in a centrifugal
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jurisdiction over the State. federation the states are creature of Centre, they exist
on the will of Centre and the Centre enjoys more
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FEDERATION AND THE UNION power than the States but in a centripetal federation,
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the States enjoy much autonomy in the legislative field.

Art. 1 of the Constitution of India provides that India, In the USA, for instance, the distribution of powers
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that is Bharat shall be a Union of States. As per Dr. B. between the Centre and the States is heavily tilted in
R. Ambedkar Indian federation would not be like the
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favor of the States. In USA only enumerated powers

federation of American States where the States are have been given to the federal government and in
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more powerful than the Federation. To answer this Canada the enumerated powers are entrusted to the
question we have to depart ourselves from Art. 370 provinces. Since, the enumerated powers are few and
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and bring into sight, the concept of federation. residues are many, the States in the USA, and the
A federation is a political contraption to reconcile Centre in Canada are very strong.
national unity with state rights. It is essentially a The position of India is different from both USA and
composite polity consisting of a national or central Canada, India is divided into twenty-nine States and
*
296
seven Union Territories. Union Territories being (c) the provisions of the Constitution as applicable, in
governed by the Centre, through an administrator, relation to the State, shall be introduced or moved in
appointed by the President need not be discussed. either House of the Legislature.
These twenty-nine States can be divided into 28+1.
Here, one will be J&K and twenty-eight will be others. It means that the Constitution of J&K itself reaffirms
These twenty-eight States have been created by the the claim of India over State of J&K and further
Parliament of India by way of Reorganization Acts, ensures that the State of J&K can in no way be
ce
passed from time to time. These 28 States exist on the segregated from India. It also provides that the
will of Union (the phrase Union of States in Art. 1 Governor, who shall be the head of the State, will be
en
ensures that there will always be some States in India, appointed by the President and holds office during the
nevertheless, the existence and continuance of any pleasure of the President. In case of failure of
ud
particular State, say West Bengal, is not ensured). So, it Constitutional machinery, the Governor may assume
is an instance of federation by centrifugal forces. The to himself all or any of the functions of the
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situation of J&K is different from other States as it Government of the State. The Judges of High Court,
who should be citizens of India, are to be appointed by
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didn’t want to be a part of Dominion but was forced to
do so under some inevitable circumstances, as the President. The superintendence, direction, and
control of election to the Legislature has been vested in
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discussed earlier, therefore, it made certain deal of
bargains, with the Dominion, in the Instrument of the Election Commission of India.
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Accession and limited the legislative power of Centre
Even bare perusal of the Constitution of J&K shows
to the specified subjects. It is, therefore, federation by
that J&K has accepted the Executive, Judicial and
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Centripetal forces. India, therefore, is a unique blend of
other Constitutional authorities of the Constitution of
centrifugal, and centripetal forces. Therefore, keeping
India and has been drafted in light of the ideals
in view the Instrument of Accession signed by the
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enshrined in the Constitution of India. It is, however,
Maharaja and accepted to by the then Governor
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accepted that Art. 370 in the first instance has limited
General of India, Art. 370 can be said to be in
the legislative power of Union Parliament and the
consonance with the policy Art. 1 of the Constitution.
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reasons for the same have already been discussed

earlier. Nonetheless, the President of India has from
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ART. 370: BRIDGE OR BARRIER

time to time, with concurrence of the Government of
State, extended the legislative authority of the
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Clause c of Art. 370 provides that the provisions of

Art. 1 shall apply in relation to J&K. It means that the Parliament in relation to J&K. Illustratively, the
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State shall be an integral part of the Union. While recognition of Governor in place of the Sadar-e-
discussing this question it inevitable to bring few Riyasat (1965), Arts. 356 & 357 (1965), direct election
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provisions of the Constitution of J&K, which came to the Parliament (1966), Art. 249, Art. 312 (All India
into force on the twenty-sixth day of January, 1957, Services) etc. Undoubtedly some provisions have
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into discussion. S. 3 governs the relationship of the helped the State of J&K, however there has been a
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State with the Union of India and provides that the clear diminution of autonomy which in some cases was
State of Jammu and Kashmir is and shall be an integral not desirable. Yet, the residuary powers continued to
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part of the Union of India and as per second proviso rest with the State itself.
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to s. 147, which deals with the amendment of the

Constitution of J&K, no Bill or amendment seeking to
PLEBISCITE AS A SOLUTION
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make any change in-

One of the most absurd demand by some factions in
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(a) section 147; or the political scenario has been for a plebiscite based on
the principle of self-determination. The Governor as
(b) the provisions of sections 3 and 5 ; or the Executive head in the State of J&K still exercises
the powers as a sovereign under the provisions of
Section 26 of the Constitution of J&K, 1956,
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297
unrestricted by the Instrument of Accession (provision condition is also sacrosanct. Accession to India was
8 of the Instrument of Accession). To hold a plebiscite conditional to Kashmir retaining its distinct cultural
would be against the provisions of Section 3 of the and regional identity. Art. 370 assured the benefits of
Constitution of J&K itself. The question of self- an autonomous Kashmir without sacrificing the
determination would arise in the absence of a provision advantages of being a part of the larger federation. Art.
for the election of a democratic Government by the 370 defines a special type of Centre state relationship
people. Through the enactment of the Constitution of and it would be unjust to disown these relationships
ce
J&K, 1956, the people of the State of J&K through unilaterally.
their elected Constituent Assembly freely determined
en
their political status as brought out through the  Unilaterally repeal of Art. 370 by Indian Parliament
Constitution in light of the Instrument of Accession. is not feasible as Art. 370 provides for its own
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With the enactment of the Constitution of J&K, all repeal. The President of India is empowered to
questions for a plebiscite were put to rest. Section 48 suspend its operation to make modifications in its
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of the Constitution of J&K proclaims that a number of operation on the recommendation of the
constituent assembly of the State. Since, the
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seats in the Legislative Assembly shall remain vacant
till the area in control of Pakistan, ceases to be. It thus constituent assembly has ceased to exist so, the
provision has also become inoperative.
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acknowledges the wrongful occupation of the territory
of J&K by Pakistan. Thus, the adage “One man’s  Since, Art. 370 provides for its own repeal,
therefore, provisions of Art. 368 shall also not be
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freedom fighter is another man’s terrorist” may ring
true in many a situation, but for Kashmir it would applicable to Art. 370. Moreover, both Art. 368
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amount to fighting against its own spirit, which is its and Art. 370 contains the non obstante clause and
own Constitution. Art. 370 being a special provision should not be
overridden by art. 368 because the rules of
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One more claim for plebiscite is that India should interpretation require that generalia specialibus non
of
implement the Security Council Resolution of 1948 to derogant.
hold a plebiscite but the condition precedent in the
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resolution itself was that Pakistan should ensure the Art. 370 is itself in the interest of India. It enlarges the
claim of India over J&K. Ultimately no person can
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withdrawal of tribal who illegally invaded into the

State. Since the condition was never fulfilled, the keep another in subjection against their will. The
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demand for plebiscite is untenable. Therefore, finest central government will have to win over the people of
solution available to both J&K and the Central Kashmir and convince them that their interests are safe
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government is autonomy under the framework of Art. in India and that they enjoy the fruits of democracy
370. and autonomy within the Indian federation.
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SHOULD ART. 370 BE REPEALED? Kashmir problem existed until day just because of the
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suspicion of the Indian government and debate over

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In the time of so much hue and cry relating to the Art. 370. J&K has slowly surrendered its autonomy,
autonomous status of J&K, the question whether Art. firstly by abolishing Sardar-e-Riyasat and Prime
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370 is necessary in the relations of India and J&K is Minister and replacing them by Governor and Chief
Minister and then by extending the jurisdiction of
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inevitable. Ajit Prasad Jain, former Union Minister

observed “...the valley has a culture, history and Supreme Court to J&K. The incursion of Pakistani
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tradition of its own…dissimilar to those of the rest of tribal into the state in 1947 was a clear-cut indication to
India. So, any attempt at tampering with or repealing the Kashmiri folks that their interests and identity will
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Art. 370 cannot win the hearts and mind of the never be safeguarded in the hands of Pakistan and it
people.” Some folks, however, believe that Art. 370 is was only the democratic and secular India with which
the cause of separatist propensity and, therefore, their fortune lies. Till date the legislative power of
should be repealed. Art. 370 was a condition to Union has been extended to 94 subjects out of the 97
accession and if the accession is sacrosanct, the mentioned in the Union List though “Residuary
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298
Settlement of Investment Disputes (ICSID) courts to strike the award down which can actually
Convention.19 hamper India’s international goodwill.
Now we will discuss where does India stand in Some relevant cases are discussed below.
International Investment Arbitration and also India’s
behaviour to the same. RELEVANT CASES
The first International Investment Arbitration

INDIA AND INTERNATIONAL
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proceedings which India faced were a bunch of claims
INVESTMENT ARBITRATION
brought by General Electric and Bechtel Industries, the
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ARBITRATION LAW IN INDIA matter related to the controversial Dabhol Power
Project in Maharashtra. The two companies were
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Domestic Arbitration in India is regulated by the minority partners in the project which was also involved
Arbitration and Conciliation Act, 1996. Part II of the act the infamous Enron Corporation. The power plant
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deals with enforcement of foreign Arbitral Award. But which the companies had invested in had signed a
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unfortunately this act deals with commercial arbitration contract to supply power to the Maharashtra State
and does not apply to Investment Arbitration. Delhi Electricity Board (MSEB). However, when on account
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High Court in Vodafone case20 said that the Arbitration of political opposition the MSEB cancelled the contract,
Act governs only “commercial” arbitrations, and General Electric and Bechtel brought arbitration claims
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emphasized the fundamental distinction between against India in 1999 under India’s BIT with Mauritius
commercial arbitrations and investment arbitrations. It as the companies had routed their investments through
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stated “investment arbitration disputes are their Mauritius subsidiaries. The proceedings did not
fundamentally different from commercial disputes as L lead to any award as the parties later came to a
the cause of action (whether contractual or not) is settlement.22
grounded on State guarantees and assurances (and are
of
not commercial in nature). The roots of Investment WHITE INDUSTRIES CASE
Arbitrations are in public international law, obligations
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The first adverse arbitral award against India and

of State and administrative law.” And thus the act does
favouring the investor was delivered in the White
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not apply to BIT matters.

Industries case. White Industries was an Australian
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As discussed above, India not being a party to ICSID mining company which had a contract with India’s
convention the Delhi High Court says that the main public sector company, Coal India Limited. The dispute
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reason seems to be that the ICSID convention between the 2 corporations resulted in a commercial
completely negates the role of national courts. It also arbitration award of 4.8 Million Dollars in favour of
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points out that if it did not retain jurisdiction over BIT white industries. White Industries chose litigation before
arbitrations, it would be powerless to enforce any the Delhi High Court seeking to enforce the arbitral
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arbitral award, if the domestic courts were approached award, while Coal India approached the Calcutta High
nt
to do so. 21 There seems possibility that after getting Court seeking that the award be set aside. With the Delhi
adverse arbitral award, the union of India might High Court staying the enforcement proceedings while
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challenge the execution of the same in the domestic the decision in the set-aside proceedings was still
nt
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19 INTERNATIONAL CENTRE FOR SETTLEMENT OF 22JONATHAN MARSHALL, Arbitration Tribunal Rules for
INVESTMENT DISPUTES, List Of Signatories as of 2018, At Bechtelin India’s Dabhol Power Project: 2nd Ruling Also Against
https://icsId.worldbank.org/en/Documents/icsiddocs/List Indian Government, BUSINESS WIRE, May 3, 2005,
%20of%20Contracting%20States%20and%20Other%20Sig https://www.businesswire.com/news/home/200505030060
natories%20of%20the%20Convention%20-%20Latest.pdf. 04/en/Arbitration-Tribunal-Rules-Bechtel-Indias-Dabhol-
20 2018 SCC OnLine Del 8842. Power.
21 Id.
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181
Another spate of arbitration claims arose from the Multimedia a private corporation for lease of S-Band
cancellation of licences using second-generation (2G) transponders for ISRO satellites for a price of of ₹14
telecommunications spectrum by the Supreme Court in billion (US$200 million), to be paid over a period of 12
February 2012 as a fallout following the submission of a years. The spectrum used in these satellites (2500 MHz
report of the Comptroller & Auditor General of India and above) is allocated by the International
about irregularities in the pricing and allocation of Telecommunication Union specifically for satellite-
spectrum. based communication in India. In the year 2011 CAG
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report pointed several irregularities in the said deal
After the Supreme Court of India cancelling the 2G ranging from noncompliance of standard operating
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spectrum licences of many telecom operators following procedures to financial mismanagement. Later,
the report by former CAG Vinod Rai of the blatant Government of India cancelled the contract. Devas
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irregularities in the distribution of licences, Telenor had multimedia brought 2 arbitration claims against India at
served a notice to Government of India claiming PCA.
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damages of Rs. 70000 Crores or it will bring an
International Arbitration Proceedings against it.27 Two international arbitral tribunals have ruled against
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India over the way contract was cancelled. The first
CAIRN-VEDANTA adverse arbitral award was given by the International
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The Income Tax department levied a tax amounting to Chamber of Commerce which slapped the fine of nearly
Rs. 4,500 crore ($672 million) for unilaterally
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Rs. 10247 Cr. on British oil explorer Cairn Energy plc
for alleged capital gains it made on a 2006 internal terminating the contract with Devas. The second
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reorganisation that saw the Indian business being adverse arbitral award was delivered by the Permanent
transferred to a new firm, Cairn India. Again on March Court of Arbitration (PCA), The Hague, and said that
Indian government is liable to fine of nearly US$ 1
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2015 the department sought to levy tax for the capital
gain made by the acquisition of Cairn by the Vedanta Billion as the contract was cancelled in the wrong
of
Group. manner.
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In March 2015, it also slapped a notice on Cairn India, INDIAN BEHAVIOUR TOWARD
INTERNATIONAL INVESTMENT
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which was in 2011 acquired by the Vedanta Group, for

its failure to withhold tax on capital gains made by its ARBITRATION
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erstwhile parent, Cairn Energy. The Income Tax

From the behaviour of several officials in the Union
department cited the 2012 amendments that gave tax
Government it doesn’t seem like this government is
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departments powers to retrospectively tax such deals, to

interested in International Investment Arbitration as a
demand Rs 20,494.7 crores. This comprised of tax of Rs
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means of peaceful settlement of Disputes. For instance,

10,247.4 crore and interest of an equivalent amount.28
after the Delhi HCs ruling on Vodafone Tax case a
The Arbitration proceedings are going under UK-India
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senior government official was quoted saying “India

BIT.29
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may not accept International Arbitration orders

ANTRIX-DEVAS CASE annulling tax demands and the tax department will
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In January 2005 a commercial wing of Indian Space

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Research Organization (ISRO) known as Antrix

eI
Corporation entered into an agreement with Devas

Th
27SIDDHARTH, Telenor Seeks Arbitration, Claims Damages Of 28 PTI, Final Arbitration Hearings On Tax Demand In August:
$14bn From Government, TIMES OF INDIA, Mar. 27, 2012, Cairn, THE ECONOMIC TIMES, Jan. 23, 2018,
https://timesofindia.indiatimes.com/business/india- https://economictimes.indiatimes.com/industry/energy/oil-
business/Telenor-seeks-arbitration-claims-damages-of-14bn- gas/final-arbitration-hearings-on-india-tax-demand-in-
from-govt-in-2G-case/articleshow/12420404.cms. august-cairn/articleshow/62619959.cms.
29 Id.
*
183
continue with the recovery process.” On being asked intention of the government that it is pro state and anti-
about Vodafone and Cairn Industry Arbitration.30 investor, such clauses will make the arbitral procedure
cumbersome, lengthy and hard to reach. Thus govt.
In 2017, during the ongoing tax case of Vodafone over does not seem to have faith into arbitration as a good
the second arbitration proceedings under India-UK mean of peaceful settlement of dispute. Because of such
BIT, in the Delhi High Court, a note sent by Finance legislative behaviour, the investors might think twice
Minister to the Prime Minister’s Office and copied to before investing in India and the existing ones may start
ce
the Revenue Secretary was leaked. 31 In the note, the to pack up and leave.34 And this would be completely
Union Finance Minister stated that under various BITs against the furtherance of “ease of doing business”.
en
of India, there are 23 International Arbitration
proceedings going on in which the Government of India Therefore, what I infer is that India has not been any
ud
is not adequately being represented. The note also stated successful in developing a BIT model that balances
that there are some cases wherein the Government is Investment protection with the state’s right to regulate
pr
defaulting in the appointment of arbitrators which if not and which does not tinker with the arbitral discretion.
done, will be appointed by international authority (ICJ) The BIT should be such that foreign investors keep on
ris
and that may be prejudicial to India’s interests. Further investing in India and BIT should not be the reason for
letter went on to say that there is no coordinating them not investing. Having a balanced BIT regime
Ju
ministry which is following it up on day to day basis. In would also help in improving the perception of foreign
relation to Vodafone case, the note said that India has investors that it is easier to do business in India and that
&
still to appoint a competent QC (Queen’s Counsel, a in case of undue regulatory interventions, they could rely
aw
designation used in Britain and some other on promises made under international law to safeguard
commonwealth countries, roughly equivalent to a their investment.
“Senior Counsel” in India) in the matter who could
L
argue on India’s behalf. The author noted that both the To expedite resolution of commercial disputes and to
of
presiding arbitrator and Vodafone’s lead counsel are promote peaceful settlement of dispute mechanism in
QC, are from Essex Court Chambers, a London based the country and to make India an international arbitral
al
set of barristers’ chambers, and recommended that the hub, Government on the other hand, constituted a
Committee under the Chairmanship of Srikrishna J.
rn
government also appoint a leading counsel from the

same chambers.32 Retired Justice of the Supreme Court of India. The
Committee was given the mandate to review the
ou
As has been discussed above in the section of BITs33, institutionalization of arbitration mechanism and
lJ
Also new model BIT proposed by govt. in 2015 suggest reforms thereto. The Committee submitted its
removes tax matters from going to arbitration, removes report on August 03, 2017, to the Minister of Law &
na
MFN clause, and puts a clause which states that before Justice and Electronics and Information Technology.
going to arbitration, the investor corporation will have
io
to exhaust their domestic court remedies till five years Eventually, on the suggestions made by the said
committee, recently Government has introduced the
nt
then try solving the dispute through mediation and

conciliation after that arbitration. Such clauses show the New Delhi International Arbitration Centre (NDIAC)
er
nt
30PTI, India May Not Accept Arbitration Orders Annulling Cairn 32 Id.
Vodafone Tax Demands, THE ECONOMIC TIMES, May 22, 33 PRABHASH RANJAN & KEVIN JAMES, India’s Model
eI
2018, BIT: Is India Too Averse?, BROOKINGS INSTITUTE (2018).

https://economictimes.indiatimes.com/news/economy/poli 34 PRAGYA SHRIVASTAV, India Scaring Away Foreign
Th
cy/india-may-not-accept-arbitration-orders-annulling-cairn- Investors? What New Bilateral Investment Treaty Is, And

vodafone-tax-demands/articleshow/64271201.cms. What It Does, THE INDIAN EXPRESS, Aug 2, 2018,
31 SWATI CHATURVEDI, Modi's Minimum Raj: Jaitley https://www.financialexpress.com/economy/india-scaring-
Forwarded Anonymous Note to Flag Key Matter to PMO, THE away-foreign-investors-what-new-bilateral-investment-treaty-
WIRE, Apr. 9, 2018, https://thewire.in/government/modis- is-and-what-it-does/1267124/.
minimum-raj-jaitley-sent-anonymous-note-to-flag-key-
matter-to-pmo.
*
184
Bill, 2018 in the Lok Sabha which sets India to compete domestic courts. 38 Also it has to be kept into
with other global international hubs like The Hague, consideration that if India dreams of a good arbitral
Paris, New York, Singapore, etc.35 Clause 14(a) of the mechanism, the institution shall have competent
Bill, envisages the NDIAC as a flagship institution for judges/arbitrators so that respect and sanctity of the
conducting international and domestic arbitration. institution grows and can be maintained and an
unwanted situation (such as European Union’s denial to
CONCLUSION include an ISDS clause. Many countries like South
ce
Africa, Indonesia, Australia & Eucador have announced
BIT arbitrations are neither subject to the UNCITRAL
that they would not include ISDS clauses in future BITs,
en
as India while acceding to the said convention, made a
or they will withdraw from the treaties in force that
reservation that it will apply the convention “only to
include ISDS clauses, or let such treaties lapse39) does
ud
differences arising out of legal relationship… that are considered
not arise.
commercial under national law”36, nor to the Arbitration and
pr
Conciliation Act, as it would be applicable only in cases In the wake of governmental efforts like the
of commercial arbitration, as discussed above. introduction of the New Delhi International
ris
Arbitration Centre (NDIAC) Bill, 2018 in the union
For Indian courts to set aside the adverse arbitral awards
cabinet is, at least on paper, all set to present itself and
Ju
granted against India, would be politically risky, as India,
compete with other jurisdictions like London, Paris,
is revered by the international investors, and its
Geneva, Singapore and New York as a global
&
credibility before them will be lowered. Additionally, it
arbitration hub.
will make government’s intentions clear not to improve
aw
market conditions for foreign investors, and initiatives However, the letter sent by the Finance Minister to the
like ease of doing business will prove to be mere lip PMO and also the miscellaneous instances discussed
L
service and pretentions. It shall be the duty of the in the chapter 5.3. undermines faith and hope in the
of
domestic courts to give a green signal to the awards by Government that it will do anything to further the
foreign tribunals when they come to domestic courts for International Investment Arbitration regime in the
al
their execution, until and unless the award suffers from country. Further, more research is needed to be done
what Supreme Court calls as “Patent Illegality”37 on questions as to whether domestic courts shall comply
rn
with the award of the arbitral tribunal or should they

The initiative to establish NDIAC as a flagship
again go into the merits of the case and order against
ou
institution for international and domestic arbitration

adverse arbitral award. Would it be legitimate? Where
plays a vital role when other factors discussed above
lJ
will the domestic courts get the Jurisdiction from? And

are implemented and are looked upon, perpetually. An the like questions. These questions are needed to be
na
initiative of national importance like the NDIAC can

answered because attitude of the judiciary in addressing
play an important role only when other factors,
such issues will ultimately decide the country’s overall
io
discussed above, are conducive. Also it becomes

image as “arbitration friendly” or otherwise and also
inevitable to ensure specialization for judges dealing
nt
because the role of Domestic Courts for the execution

with arbitration related matters. Moreover, of an international arbitral award will massively impact
er
jurisprudential certainty will help stimulate the

foreign relations of India and will determine whether
confidence of the public in arbitration as a peaceful
India revers Public International Law or not.
nt
dispute resolution process as opposed to approaching

eI
Th
35 SOMESH DUTTA, HOW REALISTIC IS INDIA’S 38 PALASH TAING & PRATEEK KHANNA, India: The
DREAM OF BECOMING A GLOBAL ARBITRATION New Delhi International Arbitration Centre Bill, 2018: Creating An
HUB, THE WIRE, Apr. 30, 2018, Ecosystem For International Arbitration Centre In India,
https://www.thewire.in/law/india-global-arbitration-hub- MONDAQ, Jul. 05, 2018.
modi-government. 39 Supra note 11.
36 Supra note 20.
37 ONGC v. Saw Pipes (2003) 5 SCC 705
*
185
Re: Article 14 Section 438 forms an implicit part of Article 21 as, it is

designed to meet situations where, the liberty of an
Article 14 of the Constitution provides for equality individual is not taken away in instances where, a case
before law and equal protection of the laws. Article 14 arising out of malicious intentions is instituted against
permits reasonable classification for the purposes of the alleged offender. Section 438 does not
legislation, but prohibits class legislation. To pass the automatically grant protection from arrest since, the act
test of permissible classification two conditions must of granting anticipatory bail is not automatic but, arises
ce
be fulfilled, namely: by exercise of judicial direction. A wise exercise of
judicial power inevitably takes care of the evil
en
“(i) That the classification must be founded on an
consequences which are likely to flow out of its
intelligible differentia which distinguishes persons or
intemperate use.
ud
things that are grouped together from others left out of
the group and, Re: Comparison with other Statues Similarly Placed: -
pr
(ii) That differentia must have a rational relation to the If one were to compare Section 18 of the Atrocities
ris
object sought to be achieved by the statute in Act against other statutes having similar provisions for
question.” Anticipatory Bail, a startling picture is revealed.
Ju
Whether it be the Terrorist and Disruptive Activities
Though the provisions of the Act create a reasonable
(Prevention) Act 1987, or the Unlawful Activities
classification as regards offences committed under
&
(Prevention) Act 1967 or the Maharashtra Control of
other penal statutes, such classification has no rationale
Organized Crime Act 1999, all these statutes which
aw
nexus to the objects sought to be achieved by virtue of
provide for fetters on grant of Anticipatory Bail also
enactment of Section 18. The object of the statute is to
provide some fetter vis-à-vis grant of regular bail. The
ensure advancement of members of Scheduled Castes
L
logic being that, an accused charged with commission
and Scheduled Tribes by protecting them from
of
of such serious offences ought not to be let out
harassment, humiliation, disgrace, indignity,
without proper consideration not only at the stage of
exploitation etc. This purpose however, has no nexus
al
grant of anticipatory bail but also when the matter

with respect to the wholesale denial of the benefit of
comes up for grant of regular bail. Surprisingly, the
rn
Section 438 of the Code to all classes of offenders

Atrocities Act is silent on any prohibition /
under the Act. Thus, Section 18 by virtue of not having
consideration at the time of grant of regular bail. Thus,
ou
a rational relation to the object of the Atrocities Act, is

in the absence of any fetter with respect to grant of
violaitve of Article 14.
lJ
regular bail, there is no justification to require a person

Re: Article 21: - to surrender, remain in prison for a few days and then
na
apply for bail even when there are reasons to believe

Article 21 states that no person shall be deprived of his that the accused in question is prima facie not guilty of
io
life or personal liberty except according to procedure the offence or that he is not likely to abscond or
established by law. The procedure established by law
nt
otherwise misuse his liberty. The apprehension of

must be capable of being regarded as reasonable or fair misuse of liberty so granted would still hold good in
er
procedure as contemplated under Article 21. A the event the accused is granted bail the grant of which
procedure, which requires an accused to first be is not prohibited by the Atrocities Act. Thus, lack of
nt
arrested and then only be released on bail cannot be any fetters vis-à-vis grant of bail in contrast to fetters
eI
said to be a fair procedure. Deprivation of personal on anticipatory bail make the provision arbitrary and
liberty on a baseless accusation without any unreasonable. Thus, the court has rightfully held
Th
opportunity of getting pre-arrest bail is not reasonable Section 18 to be in teeth of constitutional principles
procedure. thereby reading it down on the hypothesis that the
legislature would not have intended to transgress
Re: Section 438 and Article 21
constitutional vires thus, recasting the statute.
*
303
CONCLUSION
Thus, what really lies at the core of this judgement is

prevention of abuse of police powers of arrest,
implications of arrest on the rights of an innocent
individual and protection of those falsely accused
under the Act. In effect, the judgement really strikes a
ce
balance between societal interests on one hand and,
protection of individual rights and liberties on the
en
other hand, merely reiterates the cardinal tenets of
Criminal Jurisprudence, restores the right of
ud
presumption of innocence and smoothens the path for
Justice.
pr
Unlike the widespread belief, this judgement does not
ris
prevent the members of the Scheduled Castes or
Scheduled Tribes from initiating proceedings under the
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Atrocities Act. The directions of the court act as a
mere filtering process against the abuse of law.
&
This Judgement is not an anti-Dalit, pro-upper caste
pronouncement. It preserves and protects the heart
and soul of our Constitution and paves way for further
fortifying the Atrocities Act. This judgement is a
L aw
of
balancing act, weighing the scales of justice in favor of
the innocent and against mischief all within the
al
mandate of Constitutional law.

rn
ou
lJ
na
io
nt
er
nt
eI
Th
*
304
THE LIST: DUE PROCESS VS. DIGNITY

KOMAL ISRANI
INTRODUCTION where shame is still attached to the victim and not the
perpetrator, due process is bound to be compromised
ce
A Facebook post by a lawyer, Ms. Raya Sarkar kicked on. Let us remember that until very recently, the “two
en
off a major controversy with 58 professors having been finger test” that rape victims had to undergo, and
listed in an excel document by victims, who chose to which contributed to victim shaming, was a part of the
ud
be anonymous, as sexual harassers. The campaigner due process established by law. In an era where a
invited others to name academics who have sexually precedent that says “a feeble no may mean a yes” binds the
pr
harassed their students. lower courts in its decisions, how safe are women in
their academic and professional spaces where their
ris
In response, a group of feminist scholars, activists, and perpetrators are often powerful men who are
lawyers deeply criticized the list, with a statement considered to be indispensable. Therefore, asking the
Ju
published on Kafila Online, where they expressed their right questions on this topic and answering them
‘dismay’ and urged those behind the list to seek ‘due becomes imperative to set the existing discourse in
&
process of law’ for their complaints. perspective.
aw
ANALYSIS It is vital to remember that if the stipulations of
institutional “due process” are followed strictly, the
L
Why Due Process Has Not Been Enough most disempowered victims of sexual harassment
of
(children or Dalits) may never be allowed to speak.
The ineffectiveness of the due process stems from the
inherent disbalance of power already prevailing in In the context of the university, young women possibly
al
existing societal conditions. This basically means that face similar dilemmas: there is a problem of belief and
rn
due process and relying on the law for justice has been truthfulness of the accusation. Sexual harassment is a
futile for the victims because sexual harassment and its serious problem on campus that just does not get
ou
perpetrators draw their legitimacy and power from the talked about enough. Over the years, using silence and
inherent gender violence and injustice in the society, dismissal, certain power structures have been
lJ
wherein even the administration of justice tilted normalized in academic spaces. When women do speak
towards the perpetrators and against the victims. Till
na
out, and there are many who do, the due process is in
the time the institutions of redressal are filled with itself unjust. This is true not only of what transpires in
people with patriarchal mindsets that further gender
io
internal complaints committees but in the justice

inequality, “due process” is bound to be compromised system as a whole, where suffering and hurt have to be
nt
on. cruelly validated through established protocols that

er
involve evidence gathering, halting testimonies and

The repeatedly raised argument in this case has been
clever arguments which is both emotionally and
nt
that unless “due process” is followed, women can

physically traumatic for the victim.
allege sexual harassment baselessly. This is not only
eI
another manifestation of the fear of disempowerment, Why the List is Symbolic of Action by the Victims
it is an almost unconscious attempt to retain control
Th
over the speech, articulations and discourse of the Yet there would be no reason for lists like Sarkar’s to
victims. Furthermore, it fails to take into account the exist if women found due process adequate. For all its
fact that “due process”, however fair it strives to be, is faults, the list is a product of the institutions’
necessarily administered institutionally, and hence is shortcomings – their refusal to reform despite decades
itself always already compromised by the inequalities of activism – and of the informal networks that uphold
and disparities that plague our institutions. In a country them.
*
305
Women have nothing to gain from naming powerful they shouldn’t be surprised when women storm the
men who harmed them. In a culture of victim-blaming, walls rather than ring the doorbell.
they end up more emotionally, financially and
professionally depleted after speaking up than they
were before. They are also opened up to vindictive
responses, so that making a complaint is often career
suicide for women in a professional sphere. If one
ce
chooses to protect their professional career and not
report, it becomes an internal war between dignity and
en
livelihood for them.
ud
Chances are the women who have messaged Sarkar
with names, and possibly details of what happened to
pr
them, feel incapable of public actions like filing reports
with their universities or the police. It tends to cost
ris
them friends, their reputation and their opportunities.
The harmed party has to do the work of testifying
Ju
again and again to be believed over a man whom
everyone believes automatically.
&
For now, it serves different purposes for different
people: some see it as a helpful digital version of
informal networks, others as the first step to pursuing
L
institutional redressal, others still as forcing a radical
aw
of
alternative to existing systems that refuse to protect
women.
al
It follows that the list will be held to different

rn
standards depending upon the person reading it. To

that end, when we talk about the prejudice against
ou
victims that acts as an insulating bubble-wrap

protecting their powerful oppressors, it is crucial to
lJ
notice how exactly men in power like Harvey

na
Weinstein fell from grace. It took two extensively

researched stories, with testimonies from 20-30
io
women, published in two of the most illustrious and

credible publications in the world for the public to
nt
collectively believe he was at fault. In such a hostile

er
atmosphere for the victims, voices through this List

also serve as a medium of speaking up for such
nt
women.
eI
CONCLUSION
Th
Women everywhere are trying to break through the

extensive and widespread oppression by powerful men
across all fields. If universities and other institutions
help powerful men build fortresses around themselves,
*
306
SECTION 377: HOMOSEXUALITY IN INDIA

A FEUD WITH SOCIETY
PRERNA DEEP
ce
en
INTRODUCTION On the off chance that we dig somewhere down in the
history to know from where did the Indian queer
ud
The expression "queer" is an umbrella term used for development begin. At that point we need to search
sexual minorities who are not hetero and additionally for our ancient Indian history, Temples developed in
pr
not cisgender. The Indian Queer development is the Puri and Tanjore between the sixth and fourteenth
battle for sanctioning the relations between the hundreds of years had some entirely unequivocal
ris
individual queers, the connection which as indicated by portrayals of queer couples. As mythologist Devdutt
the Indian culture is shameless and as per the tradition Pattanaik writes, “One invariably finds erotic images including
Ju
that must be adhered to queer connection is illegal of those that modern law deems unnatural and society considers
nature. The queer development is not something that is obscene.”
&
new it has its connections which dig somewhere down
In the modern period, the initial step was taken in the
aw
in the pre-pilgrim and antiquated Indian history.
year 1977 with the production of Shakuntala Devi's
The word homosexuals literally mean as ‘of the same book "The World of Homosexuals" It can be said to
L
sex, being a hybrid of the Greek prefix homo meaning have introduced social-reformist hemophiliac Indian
of
‘same’ and Latin root meaning ‘sex’. Homosexuality is writing in English. She finished up her book by calling
a sexual orientation portrayed by sexual fascination or not just for the decriminalization of homosexuality in
al
sentimental love only for individuals who are India yet, in addition, its full and finish
recognized as being of a similar sex. Individuals who acknowledgment by the hetero populace with the goal
rn
are homosexual, especially people belonging to male that the Indian homosexual may lead a stately and
sex are known as 'gay', gay females are known as secure life.
ou
'lesbians'. More seasoned words for homosexuality, for

example, hemophilia and reversal have fallen into After this, a lot of journalists and researchers
lJ
neglect. committed their chance of writing for the Indian queer

na
development. From that point forward a great deal of

LOOKING THROUGH THE LENS OF advancement has been made here. The LGBT
io
advocates and few groups investigate dynamism of

LITERATURE
society, and apparently developing, political
nt
Homosexuality is anything but another marvel. Indeed, administrations and growing common society as
er
even occurrences of homosexuality are accessible in locales for conceivable use or gains, while pride walks,
Hindu Mythology. The writing is drawn from Hindu, lesbian and gay social occasions, and blasting queer
nt
Buddhist, Muslim, and current fiction likewise affirms people over Internet people group prove the feeling
that queer India might be considerably more than a
eI
the nearness of same-sex love in different structures.

Old scriptures, for example, the Manu Smriti, concept.
Th
Arthashastra, Kamasutra, Upanishads, and Puranas

Indian researchers who composed on the subject of
allude to homosexuality. Also there are reports that
queer personalities in India are likewise intensely
same-sex acts are normal among sannyasins, who
associated with queer political arranging in the major
cannot wed. Therefore, cases of homosexuality are
urban focuses; their exchanges are vigorously
accessible in recorded and legendary writings world
compelling in forming queer philosophies and
over and India is not a special case to this.
*
307
developments all through the nation. Their impact One of the oldest enactments that criminalize sexual
likewise reaches out past queer networks to influence acts that were thought to be against the order of nature
general socio‐ cultural learning and comprehension was in England, where Henry VIII presented the
about queer individuals in Indian culture; for the most Buggery Act, 1533, against sodomy. The discipline
part through media introduction of political under this law was death by hanging and remained so
developments and as data about queer personalities until 1861. This was the start of numerous such laws
spreads through queer websites, magazines, gatherings, in England and in this manner by expansion in its
ce
and books. colonies. Section 377 is a piece of that history. The
Indian Penal Code, 1860 was a critical experiment in
en
“The shared sense of common identity, and the the larger colonial venture alongside practices in
emergence of Increasingly visible communities that codification like the Civil Procedure Code, 1908 and
ud
openly name themselves as gay, Lesbian, bisexual, Criminal Procedure Code, 1898 to apply the aggregate
kothi, hijra and transgender, has in effect become The standards of customary law in British India.
pr
foundation of a young queer movement.” Arvind
Narrain and Gautam Bhan, both driving Indian queer The target of Section 377 has stayed indistinct and
ris
scholar‐ activists, express, the term queer, in spite of unverified. The offense was brought into British India
the fact that acquired from English, is firmly with an assumption of a mutual Biblical ethical quality.
Ju
established in Indian originations of non‐ normative Historians have guessed that there were worries that
sex and sexual personalities; a point very much not having spouses would urge the Imperial Army to
&
reported by Ruth Vanita and Saleem Kidwai. end up being copies of Sodom and Gomorrah or to get
aw
According to survey by the Gay and Lesbian Vaishnava unique Oriental vices.
Association (GALVA), it was around 3102 B.C. (amid
In the famous case of Noshirwan v Emperor having
the Vedic Age) that homosexuality or non-regulating
L
seen two young fellows, the two grown-ups, strolling
sexual personality was perceived as "Tritiya Prakriti",
of
into the place of one of them, Solomon, the neighbor,
or the third nature.
peeped "through a chink in the door panels" and saw
al
Veteran columnist Ashok Kavi Row wrote what is that the two were endeavoring to submit sodomy. He
seemingly the primary turning out story of current strolled into the house and constrained them both to
rn
India. His account, clarifying out of the blue the the police headquarters. The two accused were
discharged and their conviction put aside as the
ou
importance of "homosexuality," was distributed in the

February issue of a magazine. In 1990 he began demonstration of the sodomy was never finished, in
lJ
India's first gay magazine "Bombay Dost”. In her book spite of the fact that the judge reprimanded one of the
"Queer Activism in India,” anthropologist Naisargi N. men, Ratansi, as a "despicable” example of mankind
na
Dave takes note of that amid a universal meeting on for being dependent on the "bad habit of a catamite”
AIDS in 1992 in New Delhi, 200 agents organized an all alone confirmation. Hereby and by we come to the
io
exit to dissect the administration's position on relationship of the individual – a catamite, with the
nt
homosexuality. In 1996 a motion picture named "Fire” demonstration, instead of the demonstration in
by Deepa Mehta has discharged the plot of the film confinement.
er
depended on the taboo sexual relations between the

On account of D P Minwalla v Emperor, Minwalla had
nt
two protagonist of the motion picture "Radha" and

indulged in the demonstration of oral sex with another
"Sita" advantageously picking these two names which
eI
man in the back of a truck, in a semi-open space.

hold a critical and consecrated part in the Indian
Minwalla, in an edgy endeavor to free him, submitted
folklore.
Th
to a medicinal examination to persuade the court that

HISTORICAL BACKGROUND AND his anal orifice was not formed like a "funnel", which is
an indication of a constant homosexual. The court
JUDICIAL NOTION
affirmed the conviction of Minwalla with a diminished
sentence, aware of the significance of the physical trait.
*
308
Noshirwan and Minwalla both manage bodies set apart the main EU nation reviewed where the views are
with signs and appearances that demonstrate the blended; 42% say homosexuality ought to be
likelihood of submitting sodomy. Section 377 could in acknowledged by society and 46% trust it ought to be
this way be utilized against not just men who were rejected. Around seventy-five percent or more in Spain
really involved in the demonstration but in addition, (88%), Germany (87%), the Czech Republic (80%),
the individuals who give the presence of being France (77%), Britain (76%), and Italy (74%) share this
homosexual and hence liable to submit the view, so does the greater part in Greece (53%).
ce
demonstration. This has legitimized the way of police
badgering and manhandle of homosexual men that are Canadians, who officially communicated tolerant
en
talked about along these lines. perspectives in 2007, are presently considerably more
prone to state homosexuality ought to be
ud
Perversity turned into an equivalent word for acknowledged by society; 80% say this, contrasted and
homosexuality in Fazal Rab Choudhary v State of Bihar 70% six years prior. Perspectives are not as positive in
pr
while managing an application for alleviating the the U.S., where a littler dominant part (60%) trusts
sentence for a conviction, the Supreme Court of India homosexuality ought to be acknowledged. Be that as it
ris
held that an offense under section 377 infers "sexual may, Americans are much more tolerant today than
perversity”. The developing linkage between sodomy, they were in 2007, when 49% said homosexuality
Ju
perversity, and homosexuality sans an exchange on a ought to be acknowledged by society and 41% said it
private space for consensual sexual acts was cemented ought to be rejected.
&
on. In Pooran Ram v State of Rajasthan a homosexual
In the Asia/Pacific district, where perspectives of
aw
was adored by an alleged attacker. The court in held
that "perversity" that prompts sexual offenses may homosexuality are for the most part negative, more
result either in "homosexuality or in the commission of than seven-in-ten in Australia (79%) and the
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rape”. Philippines (73%) say homosexuality ought to be
of
acknowledged by society; 54% in Japan concur.
It was simply after the Wolfenden Report was
Sentiments about homosexuality are likewise positive
al
published and accepted in the UK in 1957 that these

laws were expelled from the western statute books. in parts of Latin America. In Argentina, the main
rn
This report proclaimed that homosexual conduct nation in the area to authorize gay marriage in 2010,
between consenting grown-ups in private should never around seventy-four percent (74%) say homosexuality
ou
again be a criminal offense. From that point forward, ought to be acknowledged, as do clear greater parts in
Chile (68%), Mexico (61%) and Brazil (60%); about
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numerous administrations in western countries have

decriminalized grown-up consensual same-sex sexual portion of Venezuelans (51%) additionally express
na
activity. In June 2003, the U.S. Supreme Court acknowledgment. Interestingly, 62% of Salvadorans say
administering in Lawrence v. Texas said that homosexuality ought to be dismissed by society, as do
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noncommercial sexual activity between consenting almost half in Bolivia (49%).

nt
grown-ups can't be criminalized for the sake of

Greater parts in South Korea (59%) and China (57%)
profound quality. Such criminalizing, it was said was
likewise say homosexuality ought not be acknowledged
er
unlawful as it meddles in individuals' freedom and

by society; 39% and 21%, separately, say it ought to be
protection.
nt
acknowledged. South Korean perspectives, while still

negative, have moved significantly since 2007, when
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PERSPECTIVES ABOUT
77% said homosexuality ought to be rejected and 18%
HOMOSEXUALITY AROUND THE said it ought to be acknowledged by society.
Th
WORLD
In Africa and in predominant Muslim nations people
The view that homosexuality ought to be are not very acceptable towards homosexuality. In sub-
acknowledged by society is common in a large portion Saharan Africa, no less than nine-in-ten in Nigeria
of the European Union nations surveyed. Poland is (98%), Senegal (96%), Ghana (96%), Uganda (96%)
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309
and Kenya (90%) believe homosexuality ought not to affidavit expressing that the implementation of
be acknowledged by society. Indeed, even in South Section 377 is a Hindrance to HIV aversion
Africa where, not at all like in numerous other African endeavors. An intervention is filed on one hand by
nations, gay acts are legitimate and segregation in view B.P. Singhal expressing that homosexuality is
of sexual introduction is unlawful, 61% say against Indian culture and that the law should be
homosexuality ought not be acknowledged by society, held and on another hand by Voices against 377
while only 32% say it ought to be acknowledged. supporting the solicitor and expressing that
ce
Section 377 is violative of the crucial privileges of
Overpowering dominant parts in the predominant LGBT people.
en
Muslim nations surveyed additionally say
 In 2008, the matter is posted for conclusive
homosexuality ought to be rejected, incorporating 97%
contentions before C.J. Shah and J. Muralidhar.
ud
in Jordan, 95% in Egypt, 94% in Tunisia, 93% in the
 In 2009, High Court of Delhi delivers the
Palestinian regions, 93% in Indonesia, 87% in Pakistan,
judgment. The court decided that criminalization
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86% in Malaysia, 80% in Lebanon and 78% in Turkey.
of consensual sex between grown-ups in private
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LEGAL EVOLUTION LEADING TO disregards the Constitution's certification of
dignity, equality, and freedom from discrimination
READING DOWN OF SECTION 377 IN
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on the basis of sexual orientation. (Articles 21, 14
INDIA and 15 of The Constitution of India, 1950). Along
&
these lines, the judges 'read down' Section 377 with
 In 2001, the battle against the old, enigmatically
the aim that it never again criminalizes consensual
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worded, provincial period hostile to homosexuality sex between grown-ups in private. In any case, the
law that criminalizes sexual acts "against the order
Judges held that Section 377 will keep on
of nature" started path in 2001. Naz Foundation
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governing instances of non-consensual sex
files a petition of requesting the Reading down of between grown-ups and also any sex with minors.
of
Section 377.
The judgment depends on four primary ideas: to
 In 2002, Joint Action Kannur (JACK) files an be specific privacy, dignity, equality, and non-
al
affidavit supporting the maintenance of the law on discrimination.

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the ground that HIV does not cause AIDS, and  In 2013, the appeal of was taken up to the
that this law is required to keep HIV from Supreme Court, with expectations of rejecting the
ou
spreading. law across the nation. In any case, this judgment

 In 2003, The Government of India (Ministry of didn't keep going long and in a serious hit to the
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Home Affairs) files an affidavit supporting the network, the Supreme Court upset the Delhi
na
maintenance of the law because the criminal law decision in 2013, successfully re-criminalizing
must reflect the open profound quality and that homosexuality.
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Indian culture objected to homosexuality.

 On January 8, 2018, the Supreme Court chose to
 In 2004, The Delhi High Court rejects the appeal
nt
revisit its previous judgment. Reestablishing the

to on the ground that the solicitor, Naz trust among the individuals from the LGBT
er
Foundation, was not influenced by Section 377 people group.

and thus had no 'locus standi' to challenge the law.
nt
 Finally, on September 6, 2018, The 5 judges bench

The Delhi High Court further rejects an audit of Supreme Court decriminalized homosexuality in
eI
request recorded which tested the previously

India. The bench said, “Section 377 fails to take
mentioned arrange. into account that consensual sexual acts between
Th
 In 2006, on an appeal filed by Naz Foundation, adults in private space are neither harmful nor
The Supreme Court passes a request remanding contagious to society. On the contrary, Section 377
the case back to the Delhi High Court to the issue trenches a discordant note in respect of the liberty
could be heard on merits. Further, the National of persons belonging to the LGBT community by
AIDS Control Organization (NACO) filed an subjecting them to societal pariah and dereliction,”
*
310
BASIC LIMITATIONS OF THE case, starts by initiating or hotel of the FIR. To begin
PREVIOUSLY CRIMINALIZED with this would require that the reach of the prosecutor
forces of the law go into the already sacrosanct circle
SECTION 377
of the home. Hart has contended that the right to
Ignoring the Possibility of Consent undisturbed execution of private consenting acts could
easily compare to the indecency of the act. Indian
Section 377 does not prohibit consensual exercises, but courts have never perceived an outright space for
ce
the utilization of the expression "voluntary" in the private unethical behavior which does not hurt others,
dialect of Section 377 makes consent unessential. Thus but rather they have despised on pointless and
en
any carnal act even consensual coming under the ambit unjustified police access to individuals' homes.
of this section is penal in nature. In Mihir v State of
ud
Orissa, it was clarified that “consent of the victim is Violation of Right to Dignity of Life
immaterial” in Section 377 as “unnatural carnal
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Because of Section 377, people are compelled to
intercourse is abhorred by civilized society”. preclude the center from claiming their character and
ris
Private Morality crucial elements of their identity. It encroaches upon
the right to privacy of a man and their right to live with
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Indian courts have never had the chance to choose the dignity. They don't feel their dignity and self-esteem.
subject of state enforcement of private morality. Gay people are dealt with unreasonably on the preface
&
However, In Anil Kumar Sheel v The Principal, Madan of their own decisions, sexual inclinations and their
Mohan Malvia Engg College, the judge expressed that introduction, in this way checking their entitlement to
… Lord Devlin… kept up that the law should keep on
supporting a base profound quality… However,
according to him, the issue would dependably be with
L aw
live with dignity and respect. They are compelled to
shroud their character and are not furnished with an
enhancing and positive climate that can help them in
of
respect to how far laws ought to maintain ethical understanding their maximum capacity.
quality and it relies on the certainties and conditions of
Violation of Right to Privacy
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the case. A judge is to keep his finger on the beat of

the general public. … The law can't embrace not to
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Every individual has a right to privacy and it stretches

interfere. out on the matter of marriage, reproduction, training,
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Anil Kumar and Kailash cases despite the fact that they family connections and so forth. They have a privilege
were unclear and unsuited as cases to govern on the to be not to mention and have an individual circle that
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decriminalization of consensual homosexuality, have is free from government interruption and settle on
choices on insinuate relations without being punished.
na
helped resolve the riddle that started with Noshirwan

and Minwalla. Section 377 isn’t only about certain Homosexuals simply express their sexuality,
consensually and without hurting others. The issues of
io
sexual demonstrations conferred between men yet in

addition around a personality that gets from the courts one's sexual inclinations and individual decisions fixate
nt
comprehension of checked bodies, appearances and an on one's pride and self-governance. Violating this right
requires an extremely cogent reason and one's sexual
er
examination of perversity. It is in certainty about every

single sexual act carried out between men, with assent inclinations and sexual introduction aren't of that
nt
– which would be equivalent to a criminalization of foremost significance that it would legitimize this
encroachment of one's rights.
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homosexuality all in all and even its related

articulations. Undermining the Right to Choose
Th
Invading the Private Household For each individual regardless of whether they are
The simple necessity of demonstrating real arraignment homosexual or not the feeling of his sexual orientation
under 377 goes into the core of the unpredictable is a noteworthy piece of his identity and character. It
nature in which this arrangement works. A criminal the choice of the individual to pick his partner
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311
regardless of his sexuality, culture, religion, and the law belittle their reality or control their predetermination
or the general public has no right to meddle in that by making their private sexual conduct a crime.
choice. Assuming responsibility and settling on one's
choices oneself empowers a person to develop, achieve In India, after a long and exhausting struggle, dynamic
certainty and satisfy all objectives that one has set. The changes are bound to occur as respects social and
law isn't legitimized in controlling the conduct of lawful acknowledgment and homosexuals as
people in case of homosexuals with view of their decriminalization of homosexuality have finally
ce
sexual introduction and rebuff them for the manner in happened under Section 377. In India from a scattered
which they are. gathering of a couple of hundred, homosexuals are at
en
present ten crores solid and developing network
Brutal Treatment and Segregation by the General advancing its own hip and happenings. They are
ud
Public meshing there a path from metros into semi-urban
social orders both online and also disconnected. This
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Section 377 IPC does not fill any open need and number is bitten by bit expanding with an ever
genuine state intrigue. Homosexuals are subjected to increasing number of such individuals exposing the
ris
unforgiving treatment from society and law. They are unadulterated truth. While Delhi and Mumbai (with
denied fundamental rights and are casualties of five lakhs gays each) and, to a lesser degree, Bangalore
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separation in different circles of life, just based on their and Calcutta are the center of the Indian gay
sexual introduction which is thought to be unnatural. development, individuals from little towns in Gujarat,
&
Maharashtra, and Bihar are likewise turning out. The
Present Status and Reforms Needed
aw
decriminalization of homosexuality will, at last,
September 2018, will everlastingly be settled in as contribute straightforwardly to reestablishing the
memorable, given the decision of the Hon'ble Supreme respect of homosexuals and enable the development to
L
Court of India in Navtej Singh Johar v Union of India, rise up out of the shadows.
of
wherein it halfway struck down the draconian Section
377 of the Indian Penal Code, thereby maintaining the
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rights of the LGBTQ people group. In any case, post

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the decision of the Court, there is by all accounts an

absence of clearness on specific issues.
ou
The recent judgment decriminalizing homosexuality in

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India still has not touched upon certain crucial aspects

of LGBQT Rights. We still need proper legislations
na
and framework with regard to the marriage, adoption,

inheritance, guardianship, divorce and succession rights
io
and much more. The Apex Court has taken a

nt
remarkable step but we still have a lot to conquer.

er
CONCLUSION
nt
“My queerness is not a vice, is not deliberate, and harms no

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one.”
-Natalie Clifford Barney
Th
Justice Kennedy alluding to the effect of hostile to

sodomy laws on the lives of gays, lesbians, and
transgender in Lawrence expressed that the state can't
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312
THE LEGALITY OF INTERNATIONAL

COMMERCIAL CONTRACTS IN THE LIGHT
OF THE APOSTILLE CONVENTION, 1961
ce
SAKHEE UDAY MEHTA
en
6. No particular form of attestation is necessary.
ud
WHAT IS ATTESTATION?
The Cambridge Dictionary defines “attestation” as a 7. Attestor should be sui generis, i.e., capable of
pr
formal statement that you make and officially say is entering into contract.
ris
true. Similarly, the Merriam- Webster Dictionary
8. The witness should have put his signature
defines it as an act or instance of attesting something:
animo attestandi (intention to attest).
Ju
such as (a) a proving of the existence of something
through evidence, (b) an official verification of 9. A person who is a party to transfer cannot
&
something as true or authentic. In the light of the attest it as a witness. The object of attestation
above definitions, it could be said that attestation is a is to protect the executant from being required
aw
legalization process by which a document is said to be to execute a document by the other party
true and authentic. Thus, attestation makes a document L thereto by force, fraud or undue influence.
legal.
Effect of invalid attestation makes the document
of
Attestation has been defined in Section 3 of Transfer invalid, unenforceable in the court of law.
of Property Act. The following are the essential
al
requisites of a valid attestation- WHY IS THERE A NEED FOR

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“APOSTILLE”?
1. There must be two or more attesting witness.
ou
The practice of a legalization chain is an inconvenience

2. Each witness must see—
from which international relations suffer. The resulting
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(a) the executant must sign or affix his mark complexity creates difficulties which have given rise to
(thumb impression) to the instrument; frequent complaints. Although the institution of
na
legalization no longer seems to meet the needs of

(b) or, see some other person sign the current practice due to its slowness and complexity, it
io
instrument in the presence, and by the does nonetheless fulfil a legal function as regards
nt
direction, of the executant; proof. In fact, the legalization procedure supplies an

aspect of verification which cannot be dispensed with
er
(c) or, receive from the executant a personal without depriving the person producing the document
acknowledgment of his signature or mark or
nt
of valuable assistance in establishing the origin of the

of the signature of such other person. document. Thus the problem was to abolish the
eI
formalities of legalization while retaining its effect.

3. Each witness must sign the instrument in the
Th
presence of executant. A possible solution would have been to adopt a treaty

rule providing that a document exempt from
4. Each witness must sign only after the
legalization would have, as regards the authenticity of
executant is complete.
its origin, the same force it would have had if it had
5. It is not necessary that more than one of such been legalized. Such a rule would have meant that its
witnesses should be present at the same time. probative weight in this matter would have been the
*
313
same as that of a national public document bearing in the foreign country. The process of producing
mind, of course, that national laws generally admit documents issued by one country in another was
proof to the contrary in the case of such national cumbersome and often costly. It required various
documents be it in the form of procedure in proof that ‘stamps’ and ‘seals’ that changed according to the
a document has been forged or otherwise. However, it domestic laws of every country. Thus, the legalization
is precisely on this point that the solution mentioned process of documents to be used in more than one
above would have made the position too difficult for country had to undergo a “chain certification” process.
ce
someone presented with a foreign document and To eliminate this process, the Apostille was introduced.
wanting to set aside its effects because he is convinced
en
of its lack of authenticity or its inaccuracy. In order to IV. WHAT IS THE ‘APOSTILLE’
find the material basis for proof to the contrary he CONVENTION?
ud
would have been forced to undertake searches and
The Apostille Convention, 1961 or the Convention of
enquiries abroad.
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Abolishing the Requirement of Legalization of Foreign
For this reason, the Conference did not want to Public Documents (hereinafter, “the Convention”), 5th
ris
abolish the traditional legalization without replacing it October 1961 is part of the Statute of the Hague
by another procedure which, on the one hand, would Conference (HCCH) on Private International Law.
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ensure for the bearer of the document the desired The Apostille Convention facilitates the circulation of
effect as regards proof and, on the other, would not public documents executed in one State party to the
&
complicate the procedure of checking the authenticity Convention and to be produced in another State party
to the Convention. It does so by replacing the ‘chain
aw
of its origin. The new formality had, moreover, to be
simplicity itself. This threefold concern is resolved in certification’ process with the mere issuance of an
the Convention by the complete abolition of Apostille (also called Apostille Certificate or
L
diplomatic or consular legalization and the Certificate). On 26 October 2004, India deposited its
of
introduction of a single check, the addition of a instrument of accession to the said Convention. The
certificate (Apostille) by an authority in the country Convention entered into force for India on 14 July
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where the document was prepared. Simplicity is 2005.

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ensured by the fact that this single certificate, to be

The Convention applies only to public documents.
affixed in the country where the document was
According to Article 1 of the Convention, these are
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prepared, is to be the only requirement necessary. The

documents emanating from an authority or official
interest of the bearer will be protected by a treaty rule
connected with a court or tribunal of the State
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exempting the certificate from all proof as to the

(including documents issued by an administrative,
authenticity of the signature and the seal it bears. In
na
constitutional or ecclesiastical court or tribunal, a

actual fact, since the certificates have to be publicly
public prosecutor, a clerk or a process-server);
numbered and registered, forgeries will have become
io
administrative documents; notarial acts; and official

so difficult that the certified document will be as
nt
certificates which are placed on documents signed by

reliable as to its origin as documents currently legalised.
persons in their private capacity, such as official
Moreover, this public numbering and registering
er
certificates recording the registration of a document or

constitutes the very essence of the protection afforded
the fact that it was in existence on a certain date and
nt
by the certificate to the person presented with the

official and notarial authentications of signatures.
document since proof to the contrary could be
eI
obtained simply by consulting a register. The main examples of public documents for which
Th
Apostilles are issued in practice include birth, marriage

Furthermore, the U.S. State Department explains in its
and death certificates; extracts from commercial
brochure on Document Authentication that
registers and other registers; patents; court rulings;
documents issued in one country, which need to be
notarial acts and notarial attestations of signatures;
used in another country, must be “authenticated” or
academic diplomas issued by public institutions; etc.
“legalised” before they can be recognized as valid in
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314
The Kerela High Court in a landmark judgement i. documents emanating from an authority or an official
recognized the validity of a civil certificate of marriage connected with the courts or tribunals of the State,
issued by the Swiss Confederation as valid without including those emanating from a public prosecutor, a
having to notorise the certificate by domestic Indian clerk of a court or a process-server
law. Honourable Mr. Justice Mohammed Mustaque
opined that, “Ext.P5 certificate of civil status is issued (huissier de justice);
by the Swiss Confederation, to prove the bride marital
ii. administrative documents;
ce
status, attested by a notary in terms of
iii. notarial acts;
en
Hague Convention, abolishing the requirement of
legalisation for foreign public documents (Apostille iv. official certificates which are placed on documents
ud
Convention). India has declared its accession to above signed by persons in their private capacity,
Convention on 05/10/1961. The Switzerland has not
pr
objected to accession of India as Contracting State such as official certificates recording the registration of
under Article 12 of the Convention. Thus, the Indian a document or the fact that it was in existence on a
ris
Court and the Public Authorities are bound to certain date and official and notarial authentications of
recognise such certification of the notaries of the signatures. It is important to stress that the text does
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foreign country”. not refer to the actual documents signed by persons
acting in their private capacity but solely the official
&
WHAT IS THE SCOPE OF A PUBLIC certificates which may accompany them. As the
DOCUMENT? distinction may seem obscure to the uninitiated, the
As noted in the previous section, according to Article 1

of the Convention, the Apostille only extends to public
L aw
Commission felt it wise to give a few examples by way
of explanation (official certificates recording the
registration of a document or the fact that it was in
of
documents. The text of this Article calls for three existence on a certain date and official and notarial
comments: authentications of signatures), although this is by no
al
means intended as an exhaustive list.

A. First of all, it should be stressed that the
rn
drafters of the Convention wavered between the terms C. The third subparagraph of Article 1 also helps
actes publics (public documents) and documents to determine the scope of the Convention by excluding
ou
officiels (official documents). The preference which two categories of public documents, namely:
was finally shown for the former expression can be
lJ
explained by the aim in view. All the Delegates were in 1. Documents executed by diplomatic or consular
na
agreement that legalization should be abolished for all agents

documents other than documents signed by persons in
2. Administrative documents dealing directly with
io
their private capacity (sous seing privé). The expression

documents officials would only partly have conveyed commercial or customs operations.
nt
this idea. It would have been too narrow since notarial This exclusion is justified by the fact that such
er
acts cannot be considered to be official documents. documents are currently given favored treatment in the
majority of countries. However, it was only accepted
nt
after lengthy debate. The question was whether to

eI
B. Since it wished to determine the make an exception to this exclusion and to bring
scope of the Convention as precisely as possible, the within the scope of the Convention certificates of
Th
Commission was not content simply with using a origin and import/export licenses. It was finally
generic term; in Article 1 it listed the documents which decided not to do so for two reasons.
are to be considered as “public documents” within the
meaning of this Convention. The documents have
been split into four categories:
*
315
a. First, it would have been pointless to apply the ii. identification of the signature and seal of the
Convention to them as they are more often than not person attesting to the document
exempt from legalization.
iii. the capacity in which he acted
b. Second, in cases where a formality is required, it is
not a question of legalization but of an authentication iv. the name of the person issuing the Apostille
of the content implying that there has been a physical
v. his signature and seal
ce
check made by the competent authority.
vi. the date and place of issue
en
c. Last, it was pointed out that import and export
licenses are most often used in the country in which vii. a serial number.
ud
they were issued.
The requirement of a serial number is an integral part
In the light of the above, the Researcher argues that of the general scheme of the Convention for the
pr
International Commercial Documents are within the prevention of the use of false Apostilles. Each of the
ris
meaning and scope of ‘Public Documents’ as defined issuing authorities is to keep a file which records the
by the Convention. number and date of the Apostille, the name of the
Ju
person attesting to the document and the capacity in
APOSTILLE W.R.T. INTERNATIONAL which he acted. A person against whom a document
COMMERCIAL DOCUMENTS IN INDIA
&
with an Apostille is introduced may inquire of the
issuing authority whether the information on the
aw
Apostilles are used frequently to certify various energy
Apostille corresponds with that contained in the
industry-relevant documents, such as oil and gas leases,
authority's files.
purchase and sale contracts, joint operating
L
agreements, drilling contracts, supply contracts, pay Apostille is derived from French law, meaning
of
orders, field-wide operating agreements, confidentiality postscript or note. The effect of affixing an Apostille
agreements, employment records, and diplomas. to a document is to certify authenticity of the signature
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Apostilles are affixed by "Competent Authorities" of the official who signed the document as true for
rn
designated by the government of a state which is party recipients in another signatory nation. Apostilles have
to the convention. A list of these authorities is been compared to notarization certificates; although
ou
maintained by the Hague Conference on Private notary certificates appear to be similar, the legal effects
International Law. Generally, designated authorities are much different, as will be discussed below.
lJ
include government ministries, embassies, lawfully

constituted courts and local governments. An alternate interpretation to meaning of an Apostilled
na
Document is that once Apostilled, it becomes a public

The Ministry of External Affairs of the Government of document. Therefore, the Researcher argues that
io
India is the only Competent Authority to issue International Commercial Contracts when Apostilled,
nt
Apostilles in India. India does not apply the Hague are public documents within the meaning of Section 74
Convention to simple copies of public documents. of the Indian Evidence Act. The said Section reads as
er
Apostilles issued yearly in India are: follows:

nt
YEAR 2003 2004 2005 2006 2007 The following documents are public documents: ––
eI
AMOUNT N/A N/A N/A N/A 26599

1. Documents forming the acts or records of the
The information contained in the Apostille is limited to
Th
acts-
a few essential entries: i. of the sovereign authority,
ii. of official bodies and tribunals, and
i. the country issuing the Apostille
*
316
iii. of public officers, legislative, judicial and is a serious need to do so because of the lacunae
executive, [of any part of India or of the pointed out in the course of this paper.
Commonwealth], or of a foreign country;
2. Public records kept 4 [in any State] of private Example: An International Commercial Contract of
documents. purchase and sale of goods could be Apostilled and
therefore, the value of goods could not be questioned
The Researcher states that an Apostilled Document in on the ground of undervaluation to escape custom tax.
ce
another State, for example the US becomes a “public Such an instance and many other such instances could
document” in the US. The same is also a “public be used against to escape the real purpose of law.
en
document” in India as it
In conclusion, the researcher states that the Apostille
ud
squarely falls within the meaning of “documents Convention is an important step in Private
forming a record of the acts of public officers of a International Law to reduce chain legalization of
pr
foreign country” under Section 74(1) (iii) . documents, thus bringing more efficiency in this era of
globalization and liberalization.
ris
However, the problem arises when the same is looked
into through Section 78(6) of the Indian Evidence Act,
Ju
1872. It reads as follows:
The following public documents may be proved as
&
follows:–
…6. Public documents of any other class in a foreign

country, –– by the original, or by a copy certified by
the legal keeper thereof, with a certificate under the
L aw
of
seal of a Notary Public, or of 7 [an Indian Consul] or
diplomatic agent, that the copy is duly certified by the
al
officer having the legal custody of the original, and

upon proof of the character of the document
rn
according to the law of the foreign country.

ou
In other words, the Researcher states that the scope of

public documents in India extends beyond the scope
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of the Apostille Convention. By virtue of

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aforementioned Section of the Indian Evidence Act,

the character of the document shall not be questioned
io
on the premise that it is a public document. Therefore,

an Apostilled document in India has an effect of not
nt
only mere attestation, but also validity of proof of the

er
character, i.e the contents of the document.

nt
CONCLUSION
eI
In light of the above analysis drawn in the course of

this paper, the researcher concludes by stating that the
Th
definition of “public document” as defined under the

Evidence Act, 1872 has to evolve with changes in the
International community and India’s subsequent
ratifications to meet its International obligations. There
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317
LIVE IN RELATIONSHIPS: INEPT FOR INDIAN

NOBILITY?
SIMRAN SYAL & ADITI LAKHANPAL
ce
EXORDIUM The landmark court ruling: in the case of D. Velusamy
v D Patchaiammal2 stemmed in as a rain in a dessert
en
“Chandra did not have a cordial bond with her neighbors. for all the live-in-couples. The Apex Court, ever since
ud
Subsequently having subsisted through bad divorces in the past, 2010 has constantly reigned in courtesy of couples living
she and her companion fixed upon on not to get tied up in together as husband and wife, giving the woman the
matrimonial sacraments. This open affirmation of her living
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rights of a wife. 3 The espousal of the all-inclusive
choices provoked her neighbors’ inquisitiveness and they began to methodology will not merely blot out societal sabotage
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speak of her in gossips or else directed stares her away. It was their against live-in-couples nevertheless will correspondingly
way of getting her in the hallway…. In a little while, she was elate their recognition in the society. The intent behind
Ju
questioned what is this ‘live-in-Relationship’? The law does not writing this paper is to endeavor to highlight the viability
support you. You better get married.”1 of the plethora of judgments in this perspective. This
&
paper exemplifies the theories of savoir-faire, spanning
A walk down a floral aisle, circles around a holy fire or
bridging capabilities, edification and approachability
aw
else even simple signatures on a document; nuptial has
methodologies that can come to our rescue. Egalitarian
a pole distant depiction in different people’s opinions,
model, apposite execution of relevant strategies, as well
nonetheless, in lieu of altogether, its sacrosanctity is
L
as adopting realistic practices lone can aid to understand
paramount. A very customary status quo has now
of
the true intention of a live-in-couple in today’s scenario.
ascended, explicitly and gradually substituting these
images and that of a live-in-couple. India is a realm of ORIGIN AND THEORY OF LIVE-IN
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ethos, beliefs, and traditions and the same is emerging RELATIONSHIP

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fast in addition to taking on the global vicissitudes

rapidly. A state which is still wrapped in its epoch deep- A live-in relationship is a living agreement wherein, an
ou
rooted dogmas but at the same time the realm which is unmarried couple survives together in a long-standing
always sprouting and ever acquiescent en route for the liaison that is similar to marriage 4 , also known as
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new-fangled trends and ethos. People have turn out to Common law marriage, sometimes named as ‘sui juris
na
be all the time more self-regulating further choose to live marriage’ or else nuptial by custom and repute, is a
according to their own outlooks, desires, and needs. custom of interpersonal prestige that is legitimately
io
Live-in-relationships are still considered beyond the accepted in restricted dominion as a marriage, even
pastel in India. A state where honour killings and inter though no validly recognized marriage ceremonial is
nt
caste marriages leads you to the infamous guillotine, performed or civil marriage contract is entered into nor
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many valiant couples do live together without getting the marriage is recorded in a civil register office.5 Live-
married and as a result they face societal condemnation. in-Relationships are believed to be a contemporary
nt
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1 Shruti Sunderraman, “Indian women and live-in- India,https://m.timesofindia.com/india/Couple-living-

relationships: Social Stigma, pervasive myths cloud legal together-will-be-presumed-married-Supreme-Court-
Th
status”, FirstPost, available at rules/amp_articleshow/46901198.cms, retrieved on 8 June

https://www.firstpost.com/business/living- 2018.
business/indian-women-and-live-in-relationships-social- 4Cohabitation redirected from Live-in relationships, The Free
stigma-pervasive-myths-cloud-legal-status-3961279.html, Dictionary.com, available at https://legal-

retrieved on 8 June 2018. dictionary.thefreedictionary.com/live-in+relationship,
2 D. Velusamy v D Patchaiammal, (2010)10 SCC 469. retrieved on 12 June 2018.
3 Amit Anand Choudhary, “Couple living together will be 5 Dr. Swarupa N. Dholam, “Social-Legal Dimensions of Live-
presumed married, Supreme Court rules.”, The Time of In-Relationships in India”.
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318
notion but then in veracity, its foundation can be women folk became conscious of their civil liberties.
outlined back to the prehistoric times. During the This practice consequently dried out.
ancient spells it was identified as ‘Maitri karar’ in Gujarat
and ‘nata Patra’ in Rajasthan, wherein, two people would Presently, this new-fangled relationship has gained huge
move in into a written contract declaring that they would momentum amongst youth and conversely at the same
live together as friends and look after each other.6 The time has aggravated the social order. Law and society are
tradition of men and women living together without not eccentric to each other. They are the two visages of
ce
nuptial has been in practice since epochs. In the the same coin. Alterations in the societal order mandate
primordial eras the nawabs, monarchs and wealthy men that law should change over time and when this notion
en
in India not merely had several spouses; but also embeds in the society, we witness it, inter alia, in the
accommodated several live in women in their Zenanas.7 form of judicial precedents influencing social concepts
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It was not at all considered licentious for menfolk to and institutions which once formed the basis of the
have live-in relationships outside their nuptials. 8 It is society, but are rotten now. Thence, several High Courts
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imperative to set apart live-in from other related as well as the Apex Court, in innumerous verdicts tried
to elucidate the theory of live-in relationship.
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cohabitation i.e., mistress and concubine. The Oxford
dictionary delineates ‘mistresses’ as a woman who
THE EDICT OF LIVING TOGETHER
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illicitly occupies the place of a wife9. Mistress speaks of
a man’s feminine friendship and love, which was kept “On a visit to Pallavi and her live-in partner flat, one would be
&
up at ease or even lavish standard of living by a wealthy flabbergasted to comprehend how sugary and cliquish their
man with the intention that he will be available for his household is. This young generation calls it their home for the
aw
several pleasures. The liaison was kept a secret. The reason that this is where they cook their meal, share a bed and
mistress neither had any accountability towards the man L resolve their fights.”11
nor did she have any legitimate privileges. Talking about
the notion of concubine, a concubine refers to women When Pallavi’s mother learns about this she cuts all ties
of
folk who cohabit with a man, in addition to his official with her and states that she is a reprobate, a social
spouse. The practice of keeping concubines was trailed terrorist, doing the absurd consensually living with
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by Asian, Arab and European monarchs. Their prestige another adult. According to her mother its illicit, law
rn
is inferior to legitimate wife and they henceforth enjoy does not back her. Here Pallavi’s mother is somewhat
restricted privileges. 10 Therefore these are poles apart off beam. Law does have Pallavi’s back.
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from women in live-ins, who enter into the relationship

voluntarily. It is not requisite to embroil sensual affairs During pre-independence, the interpretation of the
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as with the concubines or mistress. Succeeding freedom, court of law on live-in relationship given in A
Dinohamy v. WL Blahamy12 where the Privy Council
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as the social order matured, bigamy was barred and

put down a comprehensive rule proposing that where a
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6Pragati Ghosh, Maitri Karar under the Hindu Marriage Act, 10Dean Nelson, "Indian Concubines do not have same rights as
nt
available at https://www.shareyouressays.com/essays/essay- a wife" available at

on-the-maitri-karar-under-the-hindu-marriage-act/117237, https://www.telegraph.co.uk/news/worldnews/asia/India/
er
retrieved on 15 June 2018. 8080459/India-Concubines-do-not-have-same-rights-as-

7 The part reserved for the women of the household, available wife-supreme-court-rules.html, retrieved on 12 June, 2018.
nt
at https://thefreedictionary.com/zenanas, retrieved on 12 11 Rupamudra Kataki, “Pride and prejudice: No matter what
June 2018. society says, more youth in India are coming out in support
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8 Uimla Patil, "Do Live-in Relationships Really benefit of live-in relationships”, Time of India, available at:
Women", The Tribune, available at https://m.timesofindia.com/life-style/relationships/love-
Th
http://www.tribuneindia.com/2003/20030921/herwould.ht sex/pride-and-prejudice-no-matter-what-society-says-more-
m#1, retrieved on 12 June 2018. youths-in-india-are-coming-out-in-support-of-live-
9 Victoria Griffen, "The Mistress Histories Myths & relationships/articleshow/64258629.cms , retrieved on 16
Interpretations of the other women" available at June 2018.
https://archieve.nytimes.com/www.nytimes.com/book/firs 12 A Dinohamy v. WL Blahamy, (1928) 1 MLJ 388 (PC).
t/g/griffen-mistress.html?scp=8&sq=mistress&st=cse,
retrieved on 12 June 2018.
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319
man and a woman are substantiated to have lived woman is imperiled to vindictiveness by spouse or his
together as a husband and wife, the law will presume, kinsfolk, it is a transgression punishable under Section
except the contrary be undoubtedly proved, that they 498A of IPC.
were living together in consequences of a valid nuptial.
Then, after independence, the status-quo of live-in Section 2(f) delineates the concept “domestic
relationships was discussed in Badri Prasad v. Dy. relationship” as a liaison amid two adults who live or
Director of Consolidation 13 , in which the SC have lived together in a mutual domiciliary, when they
ce
presumed that a man and women living together for a are interrelated by consanguinity, nuptial, or through a
period of 50 years as a marital couple, laying a sojourn rapport in the nature of marriage.16
en
to interrogations raised up by the system on the liaison
 Legitimate Eminence as a wife
of a couple. Subsequently, the Domestic Violence act,
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2005 was enacted which expanded the domains of The Apex Court specified that an unmarried duo living
cohabitation apart from marriages. Then in the year together as spouse will relish the equivalent legitimate
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2010, SC observed a strong dictum on live-in relations eminence as a married couple. Thus, a female living with
in the infamous case, Khushboo v. Kanniammal &
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her lover will be acknowledged with the identical stature
Anr.14 where case has been instituted against the Actress as a spouse in the court of law. It even approved course
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qua her live-in relationship as she, being an influential of action for law lords to make out what establishes a
public icon is endorsing pre-marital sex which has live-in liaison. Agreeing to these guiding principles, a
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deleterious impact on the ethical fabrics of the social domestic relationship flanked by an adult male and
order. It was ruled that live-in-relationships are female, move in eloquently, and is the marker for be
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permitted and living together is a fragment of the right acquainted with a live-in rapport. Under this decision, a
to life under Article 21 of the Indian Constitution and it L woman in a live-in relationship will be titled to the
is not an illegitimate. similar welfares of assets, financial support and
guardianship as a female in a married liaison.
of
 Roofed under the domain of Domestic

Violence  Privilege to Maintenance
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To begin with it’s imperative to look at the Domestic If a woman has been a dependent mate in the live-in
Violence Act which has been promulgated to provide a liaison and is negated of a roof over her head or
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remedy in civil law for fortification of womenfolk from maintenance at the stage of split-up, she can file a
being targets of domestic violence and to thwart complaint under domestic violence act requesting for
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incidence of domestic violence in the social order. reparation or substitute accommodation.

“Domestic Violence” is indubitably a human rights
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matter, which was not appropriately taken care in India  Custodial Rights
even though the ‘Vienna Accord 1994’ and the ‘Beijing
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The bylaw has at all times preferred the juvenile. There

Declaration’ and ‘Platform for Action (1995)’ had
is no preconceived notion in contradiction of live-in
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acknowledged that domestic violence as a human rights

affairs where children are involved. Tulsa & Ors v
concept. ‘UN Committee on Convention on
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Durghatiya & Ors17 pragmatic that one of the decisive

Elimination of All Forms of Discrimination against
prior state of affairs for a child born as of live-in liaison
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Women’ 15 in its broad-spectrum commendations had

then such child shall not be well-thought-out as illicit
also encouraged the associate republics to take strides to
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since the paternities have lived under one roof and

protect women against vehemence of any kind,
cohabited for a noticeably elongated time in lieu of the
particularly befalling inside the kinfolk, a portent
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social order to make out them as husband and wife.

extensively ubiquitous in India. Presently, when a
13BadriPrasad v. Dy. Director of Consolidation, AIR 1978 SC 1557. 16 D. Velusamy v. D. Patchaimmal, (2010) 10 SCC.
14 Khushboo v. Kanniammal & Anr, AIR 2010 SC 3196. 17 Tulsa & Ors v Durghatiya & Ors, (2008) 4 SCC 520.
15 Indra Sarma v VKV Sarma, 2013(4) SCALE 448.
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320
Further court of law has made it clear absolutely that communication. Moreover, it is falsely believed that
such liaisons must not be a “walk in and walk out” bond. such relationships are only for sexual pleasure. Hence
Acknowledgment of live-ins guaranteed that it’s very imperative that both the generation decorously
womenfolk in such relationships revel in the equivalent figure out each other stance and only then can this
parental custodial privileges as women in a marriage. arrangement succeed. After the verdict of SC, folks tend
to consider that the legitimate organism has in full swing
 Access to Assets acquiescent such contemporary perceptions.
ce
Nonetheless, in reality, this is not the case if one
Another addition which completed this new-fangled
stretches a hard look to the verdict of the Apex Court,
en
relationship is that womenfolk living with a partner
he would understand that it is in datum alignment with
under the shared roof would be authorized to become
the societal norms. Social Researchers have already
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beneficiary to property of her partner after his demise.
acknowledged severe social hitches like early age
Even offspring born out of such relationships shall have
pregnancy of adolescent lassies, drug abuse, and
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access to property of their paternities.
violence and not to forget rape accusations. At least 25%
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of the sum 1,656 rape cases disclosed so far by Delhi
LIVE-IN RELATIONSHIP-AN END
Law enforcement organization have been for the reason
ROUTE?
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that of kick out live-in relationship or knock back to tie
The much deliberated conception was sought to be the knot. 19 Henceforth to annihilate such societal
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altered by the Apex Court affirming that live-in teething troubles Apex Court made live-in relationship
relationships do not set up an illegal deed.18 The Indian permissible but at the same time it has not made any
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youth is snared with this western trend of living attempt to cut down the sacrosanct of marriage.
together. Nevertheless, our resilient societal norms do L Marriages have been and will all the time be an
not second such a countenance effortlessly. Even imperative sacramental of the social order across the
though live-in relationships are not deliberated as a world. Marriages are not merely legally valid but are also
of
crime but even then, is eyed with a negative view. The socially acknowledged where live-ins is just legally valid
Indian society which has always has prided itself on and are considered as morally turpitude. Even Article 16
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kinsfolk, ethos and ethnicities, is now enduring a of the Universal Declaration of Human Rights, 1948
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transgression in the 21st century. The only question that and Article 23 of the International Covenant on Civil
ascends in the notice of the previous generation is that and Political Rights, 1966 states that the family is the
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if a duo is so much in love with each other they should natural and important assembly of the social order also
marry and then stay together as an alternative of staying are titled to protection by humankind and the
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together unmarried. Youth today is of the outlook that government. A certain chunk of the populace is trying
na
they, as wholly conscious, responsible and rational to annihilate the institution of marriage. They are of the
adults should have a right to live as per their choices. view that even in marriage spouses have a tendency to
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They feel that they need to comprehend each other have extra-marital relationships; marital rapes are in
appropriately before entering into the sacrosanct news bulletin and even nuptials can be terminated by
nt
institution of marriage conversely; their parents are the divorce so there is no metamorphosis stuck between
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opinion that they won’t impose a marriage on their live-ins and marriages. Understanding the baseline, there
children and will give an adequate amount of time to is no delinquency with ancient notion of marriages
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make up their mind for the same. However, parent’s rather problem lies in the mindset of the populace itself.
It is because of people’s own incompleteness and
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panic due to the fear of the male not turning out to be a

dependable companion in the long run or that he would ingenuousness. If you carry on with this new-fangled
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leave the female in case of trifles devoid of earlier live-in relationship for some extensive duration even
18 Badri Prasad v. Dy. Director of Consolidation, 1978 AIR https://www.deccanchronicle.com/151011/nation-

1557. crime/article/failed-live-relationships-leading-rape-cases-
19 Failed live-in relationships leading to rape cases: Delhi delhi-police, retrieved on 16 June 2018.
Police, e-Paper Deccan Chronicle, Available at:
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321
this will wear out with time, just like every other decisions. Instead of being cynical, they can start off
relationship. In addition to this, one must not oversee with appreciating the beautiful relationship in the first
the datum that we have to nurture our progenies and place.
bring them up, unless there is a committed atmosphere,
it is not going to transpire as it should be. Consequently,  Spanning Bridging Capacity
this institution of marriage emanates so that one’s
This theory revolves around the fact that the social
sexuality and caring for progeny is taken care of, and
institutions of family, marriage, educational institutes,
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broods develop up in more stable atmospheres. One
peer groups, etc should act like a support pillar for these
must not snub the fact that like each individual has its
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couples. Instead of blaming generation gap, these
own uniqueness and distinctiveness in the similar line
should act like bridges to fill in the holes rather than
each state has its own uniqueness. India from eternities
ud
focusing only on the negative and increasing possibilities
is recognized for its belief, tradition, kinfolk’s morals
of failure. The society needs to be bound, it is a social
and unions and such bonds can’t be appreciated in any
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fabric and the job of all social institutions is to wave t,
state. Its ethos, folklore and family bonds are factual
wave it as strong as possible. Education, is one tool
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characteristics of it contrariwise live-ins is individuality
which rescues all, the adults, teens, and super elders.
of west state. Such relationships grow more smoothly
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there for the reason that of the state of affairs and milieu  Edification
predominant there. It is good to replicate upright ideas
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but not on the account of annihilating our own true This theory impinges on the educational aspect of the
uniqueness. Thus live-in relationships can be summed milieu people are born and brought up in. Education is
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as a starting process meaning thereby it can be an en- what the shapes the values, beliefs and practices of the
route for marriage but not a substitute of it. L people in a community. It does not only include the
formal education received by the students in various
CONTEMPORARY LIAISONS OF institutes. India is a country where verbal
of
INDIA: A CLAIRVOYANCE VIEW communication was the prime mode of imparting
education and the sources were Vedas, Granths and
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This research paper scrutinizes certain societal

Upanishads. With time, the modes and sources have
egalitarianism theories by way of emphasizing on
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undergone radical growth which has led to huge

whether the social order acquiescent to this new-fangled
generation gaps. Technology nowadays has also played
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relationship as a starting process wherein duos

a great influencing factor of change in the mindset of
understand each other completely in order to avoid
the recent generations. All these changes in education
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future divorces.
have led to a substantial change in the culture people are
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 Savoir-Faire/ Individual Demeanor born, brought up and work in.
Consequentially and quite logically, different

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This concept highlights the need to know individual

preferences and choices before the couples jump the generations have different beliefs and different
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gun of moving in. It is pertinent for the young priorities. The recent ones focus more on logical, legal
and the consequential effects of a decision. However,
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generation to comprehend their own needs, and

understand what values do they abide by and keeping all the earlier generations focused more on family values,
nt
their capabilities and compatibility scenario in mind, custom and community benefit. The practice of live in
relationships has fallen prey to the above mentioned
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should they decide to move in. It is further important to

state that apart from individual preferences and choices, differences.
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the partners also need to understand and most of all, However, what we fail to comprehend is that education
respect the other person’s preferences. Living in is a weapon to fight social differences and not the reason
together crops up various small issues which are of great to increase them. Education teaches the people to use
importance. It is all the more imperative for the parents, their brains and take decisions for them. Accountability,
primarily to believe and trust their kids with their reliability, smartness, logic empathy, compassion and
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322
various other qualities which make us human are notions and shouldn’t use it as a platform to increase
embedded into us by education. It should not be their TRPs.
restricted to the four walls of a classroom. The need of
the hour is to revive the purpose of educating the people CONCLUSION
i.e. to enable them to judge their good or bad for
Restricting ourselves to only Indian perspective, we can
themselves and ensure that their decisions do not
conclude that the Indian law has already moved forward
interfere with the peace of others.
with the idea of safety and security to all live in
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Education is one pillar which never fails to bring the relationships. It is the society which needs to make
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society back in order and solve all its issues. Let’s not peace with this concept and understand that it is not
educate children about what happened thousands of foreign. Nothing is more valuable than a progressing
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years ago, we should focus on how they will be able to India and for that sake it is time for the generations in
adapt to various new concepts emerging in the society. conflict to find some common ground and shift their
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They should not be forced to view this concept as focus from making things worse to making things work.
positive or negative. Rather, it should be left up to them. A developing economy is not only to be weighed via
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Not only children and the youth, the adults also need to GDP; the Happiness Index also holds substantial value.
be educated about the reforms that have taken place in In the end, we acknowledge that change doesn’t happen
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the society via various judgments of the Apex Court and overnight but we believe that India has consumed a lot
also legislative reforms which have taken place in the of time in this tussle but now it needs to adapt as quickly
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society. The Supreme Court has already secured the as possible so that the struggle ahead can be dealt with.
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future of live in relationships and now has brought it at
par with marriages. The Domestic Violence Act of 2005
has included within its ambit live in relationships also
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and the women are entitled to the same rights as are
of
married women.
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 Approachability
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Herein, Media, the fourth pillar of democracy comes

into picture. Its way of portraying trends in the society
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influences a lot of mindsets. Indian media has always

looked down upon live in relationships and that’s why
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most of the people, including adults have refused to

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look beyond what the television is telling them. Even

the Supreme Court of the country has recognized and
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upheld the sanctity of live in relationships way back in

the early 200s. However, the youth today is very
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disappointed by the attitude of media not only towards

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Live in relationships but also towards imparting sexual

education amongst children.
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Media has faltered in realizing its responsibilities

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towards the society. It needs to wake up and bring to

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light the key issues and functional aspects of a live in

relationship so that the people can realize that it is not a
bad omen. It is on us how we treat it. Instead of adding
‘mirch masala’ to normal news, it should focus more on
spreading awareness amongst the society about false
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SECTION 309: AN OXYMORON

PARTH SANJAY GOVILKAR
Attempted suicide is consequential complication which law to prevail in the 21st century? Does a doctor suggest
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requires urgent attention. India’s stand on Mental health you to cut your head off if you have a headache, no
has been a bit imbalanced in the past few years but the right? In the similar manner, a person who is attempting
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time has come when all the people are on the same to suicide because of depression or disturbances should
footing. This article primarily reviews the many not be put in jail. The focus should be on reformation
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Contradictory judgments given by the Supreme court and not punishment. The judiciary have time and again
and the unprecedented consequences of Section 309 on delivered judgments which are in dissonance with each
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the society. It also portrays the lack of attention given to other, having such contradictions they have yet not
mental health in India and the unavoidable cause of arrived at a thoughtful juncture.
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mental depression in today world. International legal
perspective towards attempted suicide and the countries JUDICIAL JUXTAPOSITION
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that criminalize suicide and have decriminalized suicide
One should never allow expediency to trump over
have also been stated, the recent mental health
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principles and the Supreme Court chooses the later. In
legislation which has created a co-operative framework
P. Rathinam v. Union of India2, where the constitutional
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for the mentally ill people has also been discussed at par
validity of Section 309 was challenged, the Supreme
and how the legislature has been supportive for this
Court was clearly of the view that Section 309 which
noble deed coming together irrespective of their
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states that attempt to suicide is a punishable offense, is
affiliation with any party. Now if someone needs to
of
an anachronism which the human society does not
change it should be the society, its high time they accept
deserve. Attempt to suicide is not against any religion,
that there are people who are depressed, there are
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caste, creed, or any public policy as it causes no harm to

people who need attention, care, love and affection.
any person whatsoever. Suicide was never considered as
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Moreover, the masses should understand that Mental

an offense in Indian or English Criminal Law. The
Health is as important as Physical Health
British Parliament enacted the Suicide Act in 1961
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The ancient Greet philosopher, Epicurus, has said, whereby the attempt to commit suicide ceased to be an
offense3. It was held that Section 309 was violative of
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although in a different context: - ―Why should I fear

death? If I am, then death is not. If death is, then I am Article 21 and right to life also includes right to die.
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not. Why should I fear that which can only exist when I Suicide was held permissible and acceptable in P.
do not? Rathinam v. Union of India.
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The genesis of the question of constitutional validity of

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INTRODUCTION
Section 309 started from the 42nd Law Commission
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Section 309, Attempt to commit suicide. —Whoever Report (1971) and then came the famous case of Maruti
attempts to commit suicide and does any act towards the Shripati Dubal v. State of Maharashtra 4 (1986) which
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commission of such offence, shall he punished with held that Section 309 was violative of Article 21 and 14
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simple imprisonment for a term which may extend to of the Constitution of India. Following this, in Chenna
one year 1[or with fine, or with both]. 1 Jagadeeswar v. State of Andhra Pradesh (1987), the High
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Court had a different view and held that section 309 was
Don't you think this Section is too harsh for a country not violative of Article 14 and 21. The issue got settled
like ours. A Country which is so sensitive emotional and
fragile minded. Do we seriously need such a discordant
1 3
indiankanoon.org/doc/1501595/ www.parliament.uk
2 4
1994 AIR 1844, 1994 SCC (3) 394 1987 (1) BomCR 499, (1986) 88 BOMLR 589
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324
with the Gian Kaur v. State of Punjab5 judgment. The offense in itself and it is impossible to tag it as
facts of the case depict that the victim was drenched in unconstitutional. One cannot just force or instigate a
kerosene by her in-laws, having malaise intentions. Gian person to end his life because constitutionally he does
Kaur and Harbans Singh were charged with abetment of not have any right over the life of the latter. After
suicide. The question before the honorable court was listening to all the arguments, the Supreme Court held
whether section 306 and 309 were constitutionally valid. that Section 306 and 309 were both constitutionally
The most important part of the proceeding was the valid and Article 21 does not include right to die and
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determination of the Section being in adherence with held that suicide and euthanasia are both unlawful in
Article 21 and 14. Arguments were made to and fro. It India. It was also of the view that Right to Life not only
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was submitted that Article 21 cannot be interpreted in a impedes Right to die but also the Right to Kill. In
way in which it shall include the ‘right to die’ as it Naresh Marotrao Sakbre and Another vs. Union of
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ensured protection of life not extinction of life. As India 7 and others, the Bombay High Court held that
P.Rathinam case was being bought up again and again , there is no reason for them holding Section 306 and
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learned counsel Mr Fali Nariman said that the decision Section 309 Unconstitutional.
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made was reinforced with solicitude and it should be
reconsidered. It was argued that Section 309 cannot be The Supreme Court in recent days linked Right to Life
with Right to Die with Dignity, Dr D.Y Chandrachud
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in violation of Article 14 because the gravity of the
attempt to suicide is not fixed, it may vary from person gave the judicial support to the much-deliberated
proposition of Section 309. He stated that “It may also
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to person. It was also stated that great moralists and
philosophers agreed on the fact that there is no exact be argued that the right to life and the right to die are
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definition or guideline of suicide and the circumstances not two separate rights, but two sides of the same coin.
would not be considered Soli Sorabjee who appeared in The right to life is the right to decide whether one will
or will not continue living. If the right to life were only
this matter submitted that it has been universally
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acknowledged that a provision to punish attempted a righto decide to continue living and did not also
of
suicide is monstrous and barbaric and, therefore, it must include a right to decide not to continue living, them it
be held violative of Article 14 of the Constitution 6 . could be a duty to live rather than a right to life”
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Talking about Section 309, a significant part of P

Judiciary, which is the third pillar of our democracy,
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Rathinam v. UOI judgment was put forth. All the

plays a pivotal role in building the social conscious of
fundamental rights are read together, as the freedom to
the nation and judgements after judgments, verdicts
ou
speech and expressions comes with reasonable

after verdicts have proven that come what may, they will
restrictions and also the freedom to not speak, Using the
lJ
always work for the greater good.

same rationale, right to life shall also include right to
na
die/right to not live. Hence Section 309 is clearly in INDIAN SCENARIO

violation of article 21 and is unconstitutional. Another
io
important point is that isn’t it an irony that a person is The statistics are of unfortunate mental health is
using his right to die to give up his rights? unimaginable in India. The number of doctors in India
nt
are "As per the information provided by Medical

Moving on to decolonizing Section 306, states that
er
Council of India, a total 9,88,922 allopathic doctors

abetment to suicide is an offence and is punishable by registered with the state medical council or MCI as on
nt
imprisonment up to ten years and shall be liable to pay June 30, 2016. 8 The World Health Organization had
fine. Abetment is completely a distinct thing, and it is as predicted that about 20 per cent of India’s population
eI
monstrous and barbaric as punishment for an attempt would suffer from some form of mental illness by 2020.
to suicide. Abetment to suicide is truly a moral and legal
Th
Moreover, the country has only about 3,500
5 7
1996 AIR 946, 1996 SCC (2) 648 1996 (1) BomCR 92, 1995 CriLJ 96, 1994 (2) MhLj
6 1850
indiankanoon.org/doc/217501/
8
www.business-standard.com/article/current-affairs/in-
india
*
325
psychiatrists 9 Seven per cent of India’s population In the South Asian region, Pakistan, Malaysia,
suffers from mental disorders and over 90 per cent Singapore, Bangladesh are among the countries that
remain untreated. There is less than one psychiatrist continue to criminalize the suicidal attempt. In
available for every four-lakh people10. According to the Singapore, a person who attempts suicide can be
Indian Government’s budget and expenditure data for imprisoned for up to one year. Additionally, North
the fiscal year 2012–2013 the government spent about 1 Korea also criminalizes suicide with a peculiar deterrent,
104 543 million rupees on health (central and states where the family and relatives of the suicide victim
ce
combined). This is about 3.68% of the total government might be penalized as a form of collective punishment
expenditure of 30037588 million rupees 11 In for the act of suicide.15
en
comparison to the allocation of funds for healthcare in
developed countries (which is 10 to 12 % of their total Currently, World Health Organization identified 59
ud
budget) our country is abysmally low. countries across the world that have decriminalized
suicide.16] The whole of Europe, North America, few
pr
Now you could blame the societal mindset and the parts of Asia and much of South America have
exposure to a variety of things. Kids are no longer kids, decriminalized suicide and they are some of the
ris
the needed childishness and playfulness has reduced developed countries and I am delighted to see India
drastically, not only does it make them violent but also following its footsteps.
Ju
rebellious. The recent Blue whale game which required
a person to commit suicide as the getaway to win the LEGISLATIVE PURVIEW
&
game, is the least that can be expected from this
I India, Mental health of person was never given the
aw
contemporary evolved world. Social media has been
deserved attention, it was a largely neglected area and
detrimental to cause depression and anxiety amongst the
never taken in a broader and inclusive way. A legislation
younger generation and slowly the usage of phones by
L
for the same was introduced in 1987 known as the
the people in mid-40’s has massively increased.
of
Mental Health Care Act which is not suitable for this
GLOBAL CONDITION fast-paced century. The Lok Sabha taking this into
al
consideration, unanimously passed the landmark Mental

In the African region, Kenya, Malawi, Nigeria, Rwanda, Healthcare bill 2016.Both UPA-2 and the current Modi
rn
Tanzania, Ghana and Uganda are among the countries led Government have helped this bill along. It also
that currently criminalize nonfatal suicidal behavior. For received cross party support and the 29 members of
ou
example, In Rwanda, a person who engages in nonfatal parliament, surprisingly, rather than introducing partisan
suicidal behavior is liable, on conviction, to a 2-5-year party politics into the discourse upholded the bill
lJ
prison sentence. In Uganda, non-fatal suicidal behavior thereby showing genuine consideration and concern for
na
is a felony punishable by up to 2 years’ imprisonment. the people of India. In 2007, The government of India
In Ghana, Criminal Code (Act 29, 1960), non-fatal approved The United Nations Convention on the
io
suicidal behavior is considered a crime.121314 Rights of Persons with Disabilities. So, when a country
nt
ratifies an UN convention it is obligatory on the

government of that country to make sure that the law of
er
nt
9 Global Perspective. Oxford: Oxford University Press;

(parliamentlibraryindia.nic.in)
10
Safeguarding India’s Mental Health, The Financial 2009. pp. 105–8.
eI
14
Express, 30 September 2015) . Adinkrah M. Criminal prosecution of suicide attempt
11 survivors in Ghana. Int J Offender Ther Comp Criminol
http://www.who.int).
15
Th
12 Jiang G, Cheng Q. Suicide attempts in Asia. In:

Wendo C. Suicide cases on the rise-Survey. The New
Vision. 2007. Wasserman D, Wasserman C, editors. Oxford Textbook of
13 Suicidology and Suicide Prevention: A Global
Schlebusch L, Burrows S. Suicide attempts in Africa.
In: Wasserman D, Wasserman C, editors. Oxford Perspective. Oxford: Oxford University Press; 2009. pp.
Textbook of Suicidology and Suicide Prevention: A 109–12.
16
World Health Organization (WHO) Suicide prevention.
2012
*
326
their land is concordant with the Convention thereby (2) The appropriate Government shall have a duty to
showing solidarity with the rest of the world In India, provide care, treatment and rehabilitation to a person,
experts see a growing incidence of mental illness which having severe stress and who attempted to commit
needs urgent attention. suicide, to reduce the risk of recurrence of attempt to
commit suicide.
CHANGE IN TIME
The clause 1 of Section 115 states that it is presumed
The opening paragraph of the Mental Health Act 1987
ce
that the person shall be enduring some kind of mental
states as "An Act to consolidate and amend the law stress unless proved otherwise hence the onus of proof
en
relating to the treatment and care of mentally ill falls on the person who is eager to prove it in the court
persons, to make better provision with respect to their of law. The government
ud
property and affairs and for matters connected
therewith or incidental thereto."17 This social legislation is just a start of a roller coaster
pr
implementation process. Umpteen number of forward
The amended Mental Health Care Act was passed on 7 looking policies have been time and again introduced in
ris
April 2017, 18 superseding this 1987 Act and was India but their major obstruction is its implementation
described in its opening paragraph as "An Act to process. The three pillars of our democracy shall make
Ju
provide for mental healthcare and services for persons sure that effective implantation shall be done because it
with mental illness and to protect, promote and fulfil the is not just the responsibility of the legislative, Judiciary
&
rights of such persons during delivery of mental and Executive share the same responsibility
healthcare and services and for matters connected
aw
therewith or incidental thereto.19" CONCLUSION
The change in the opening paragraph of the recent bill
L Even after 70 years of independence, decidedly Mentally
portrays the massive difference of the current trends in depressed are the most ignored group irrespective of
of
society and depicts the need of the hour. The addition their religious beliefs, linguistic nature, caste and social
of “to protect and promote the rights of such person” segments. There are patent inequalities which subsist
al
gives the depressed victim a great moral footing. and obstruct them from emerging out from the shell.
rn
Fortunately, in the last year one has seen the emergence

Acknowledging the problem rather than suppressing it of a law, which is devoid of unjustness or incapability.
ou
shall serve the purpose in a much better way and that is These laws are strengthening mentally depressed
precisely what Section 115 of the Act defines. people’s rights vis a vis protecting them from
lJ
committing a grave error by committing suicide

The relevant provision of the Mental Healthcare Act,
na
Conversely, due to vast socio-economic differences,

2017 states:
there is a lot of vacuum which is yet to be effectuated
io
Section 115. PRESUMPTION OF SEVERE STRESS which begins with a change in the thought process of
IN CASE OF ATTEMPT TO COMMIT SUICIDE. the society as their willingness to accept these depressed
nt
people.
(1) Notwithstanding anything contained in section 309
er
of the Indian Penal Code any person who attempts to One must always remember-
nt
commit suicide shall be presumed, unless proved

“No life that breathes with human breath has ever truly longed
otherwise, to have severe stress and shall not be tried
eI
for death.”
and punished under the said Code.
Th
17
"THE MENTAL HEALTH ACT, 1987"(PDF).
19
The Mental Health Care Act 2017"(PDF) Government
Government of India. Retrieved February 3, 2016
of India
18
en.wikipedia.org/wiki/Mental Health Care Act, _2017
*
327
CALL FOR PAPERS
January 2019 Issue
About the Journal
The International Journal of Law and
Jurisprudence (ISSN: 2395-6402) is a
double blind, Peer-Reviewed, Quarterly
Journal
We are delighted to Invite Contributions in

the form of Articles, Short Notes, Book
Reviews, Case Commentaries and related
research for the January’19 Issue.
Who can Contribute?

Academicians, Practitioners, researchers,
students and others interested in the field
may send original, unpublished papers to
submissions@ijlj.net latest by 25th January,
2019.
Get in Touch with us on

info@ijlj.net | submissions@ijlj.net
+91-9425014589 | 7217821757
or visit www.ijlj.net

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INTERNATIONAL STANDARD SERIAL NUMBER: 2395 6402* | SEPTEMBER 2018 | COPYRIGHTS © 2018

22, VICHITRA VILLA,

BHOPAL M.P. 462002

+91 9425014589 | 7217821757

MS. GUNJAN SAXENA

MR. VILAKSHAN SAXENA

MS. ANSHIKA SHUKLA

Sharmishtha Bharde & Tanya Kukade |Symbiosis Law School, Pune

SIMULTANEOUS ELECTIONS: IN THE LIGHT OF FEDERALISM & MULTIPARTY SYSTEM.

TRADEMARK ON THE CYBERSPACE

Shirshak & Kumari Nidhi | Indraprastha University

TRENDS IN INTERCOUNTRY ADOPTION WITH SPECIAL FOCUS ON INDIA

A CRITICAL ANALYSIS ON THE NEED OF NATIONAL COURT OF APPEALS.

Siraparapu sreenivasa rao |Andhra University

ENFORCEMENT OF FOREIGN ARBITRAL AWARDS:

Ms. Ambareen Mujawar | Economic Laws Practice

PRIVACY JURISPRUDENCE & ITS IMPACT ON THE LGBTQ COMMUNITY

FORENSIC SCIENCE, CRIMINAL INVESTIGATION & ANCIENT WISDOM: AN OVERVIEW

THE CONCEPT OF GOVERNMENT COMPANIES & ARTICLE 12 OF THE CONSTITUTION

PAGE 121- 128

Nikitha Prasad | Christ University

THE PENDENCY OF CASES IN THE INDIAN JUDICIARY:

Aditya.G | School of Law, Christ University

TRIPLE TALAK: QURAN, ISLAMIC COUNTRIES & INDIA

Shubham Khanna |School of Law, Christ

INDIA & THE INTERNATIONAL INVESTMENT ARBITRATION

Rohit Agarwal | Christ (Deemed to Be University)

GENES RESPONSIBLE FOR CRIMINAL BEHAVIOUR? - A LEGAL ANALYSIS

TRANSGENDERS IN INDIAN LAW - THE WAY AHEAD

Rachel Jacob Tharakan | Christ (Deemed to Be University), Bengaluru

MARRIAGE: A PASSPORT TO RAPE IN INDIA?

Shrutika Lakhotia | Christ (deemed to be University)

Naina Srivastava | Amity Law School Amity University Lucknow

Karan Dua | Vivekananda Institute of Professional Studies, IP University

RIGHT TO BODILY INTEGRITY IN LIGHT OF SURROGACY & ORGAN TRANSPLANTATION

MINERVA MILL V. UNION OF INDIA

Shraddha Saxena & Krishankant Sharma | Jagran Lackecity University

Divya Joseph | Christ [Deemed to Be University]

AN ANALYSIS OF ENCOUNTER KILLINGS IN INDIA

PAGE 293- 299

Parth Sanjay Govilkar | Mumbai University School of Law

CRITIQUE ON THE CONCEPT OF RULE OF LAW AND

around. legislative was held to be necessary. Following the

concepts of Locke and Montesquieu came the concept

excludes the existence of arbitrariness, of prerogative, or

even wide discretionary authority on the part of the

of arbitrary power and excludes the existence of

ORIGIN individual, it was not tried by an ordinary court, he

subject to a one and the same body of law. This principle

from, improper influence, bribery by public or private

application of law should also be justifiable. It cannot be

enough a check has to be kept so that the rights and

manner. be in the hands of democratically elected legislature

secondly, the legislature should not hold any unfettered

than 110,000 household and 3,000 expert surveys.

measures countries’ rule of law performance across

Government, Fundamental Rights, Order and Security,

Justice. Constitution as held in the case of Indira Nehru v. Raj

RULE OF LAW IN INDIA