Rostrum's Law Review, Volume I, Issue IV

LAW REVIEW

ROSTRUM’s Fourth Issue

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A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.

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Volume : I Issue: IV

“Fourth” - “December- 2013”

Editorial Advisor

Prof. (Dr.) G. P. Tripathi

Director, MATS Law School, Raipur, Chhattisgarh, India

Guest Editor

Dr. Debasis Poddar

Assistant Professor of Law

National University of Study and Research in Law,

Ranchi, Jharkhand, India

Managing Editor

Anurag Parihar

CEO, Alkemia Legal Education Ventures Pvt. Ltd.

Associate Editors

Aounkar Anand

COO, Alkemia Legal Education Ventures Pvt. Ltd.

M. B. Elakkumanan

CAO, Alkemia Legal Education Ventures Pvt. Ltd.

Mode of Citation: “RLR (4) 2013 ”

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Rostrum’s Law Review

ISSN: 2321 - 3787

www.rostrumlegal.in/journal

TABLE OF CONTENTS

FOREWORD BY K. N. C. PILLAI 01

NOTE FROM THE DESK OF GUEST EDITOR

DEBASIS PODDAR 02

A. SPECIAL ARTICLE:

EXCEPTIONS UNDER MORAL RIGHT OF THE AUTHOR - AN ANALYSIS

JAYANTA KUMAR LAHIRI 03

B. ARTICLES:

PROBLEMS OF RURAL CONSUMERS AND THEIR EMPOWERMENT THROUGH

PANCHAYATI RAJ INSTITUTIONS

ALOK MISRA 09

E-CONTRACTS: MAIL BOX RULE AND LEGAL IMPACT OF THE INFORMATION

TECHNOLOGY ACT, 2000

ATUL KUMAR PANDEY 24

PUBLIC INTEREST LITIGATION (PIL): EFICACY AND DANGERS

CHINTAMONI ROUT 47

REVISITING THE CONCEPT OF PAROLE IN INDIA

DIPA DUBE AND MANISHA CHAKRABORTY 54

DEVELOPING SPACE LAW EDUCATION IN INDIA: SOME PROPOSALS

MALAY ADHIKARI 70

A STUDY ON LAW RELATING TO GROUNDWATER RECHARGE IN INDIA

P. SAKTHIVEL, S. AMRITHALINGAM AND M. STARKL 84


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B. SHORT NOTES:

STATE OBLIGATIONS UNDER INTERNATIONAL CRIMINAL LAW: PROGRESS,

CHALLENGES AND PROSPECTS

DEEPA KANSRA 102

CONTRIBUTION OF SUFISM IN RELIGIOUS POLICY OF MODERN INDIA

GOURISHWAR CHOUDHURI 110

MOST FAVOURED NATION TREATMENT

NIDHI CHAUHAN 120

PERILS OF A FRAGILE PLANET: SHIFTING PARADIGMS AND SENSITIVE POSSIBILITIES

TAPAN R. MOHANTY 129

D. CASE COMMENTS:

OCCUPATIONAL HEALTH AND SAFETY ASSOCIATION VERSUS UNION OF

INDIA,

ARUP PODDAR 159

ASSOCIATION FOR MOLECULAR PATHOLOGY,

ET AL V UNITED STATES PATENT AND TRADEMARK OFFICE ET AL

GARGI CHAKRABARTI 169

E. LEGISLATIVE COMMENTS:

THE NATIONAL FOOD SECURITY ACT, 2013: A CRITIQUE.

GEORGE K. JOSE 176

THE LOKPAL BILL, 2013

S.C. ROY 184

F. INTRODUCTION TO CONTRIBUTORS A

Page | 1

FOREWORD

I am thrilled that Rostrum’s Law Review comes out with its fourth edition. If earlier

editions are any guide, the fourth edition should be superb.

The venture of law school students under the able guidance of guest editor Dr.

Debasis Poddar should be encouraged and appreciated in as much as it dispels the

popular misconception that the law schools now serve only corporate interest.

Rostrum is the standing monument of the sincere efforts made by the law school

lads to make legal education socially relevant.

I congratulate Dr. Poddar and his team of young scholars devoted to hard work and

learning for bringing out this wonderful journal for the benefit of the fraternity of

law. Keep up the multidisciplinary approach.

Kochi, Kerela Prof. K N C Pillai

January 26th, 2014

Page | 2

FROM THE DESK OF GUEST EDITOR

It seems heartening to note that young Guest Editor was requested

to continue assignment for another issue of Rostrum’s Law Review-

a forum that has created brand for itself within its short life span.

For few reasons, I was prompt while accepting offer from publisher

to repeat my stewardship for this journal. First, I received response

from contributors across the country to add value for my initiative.

Second, I received support and cooperation from other stakeholders

of RLR which knows no bound. Last but not least, in course of this exercise, I received insight

on editorial role that encouraged me accept this further opportunity for editorial experiment.

Together, these points did reboot my odyssey with RLR once again.

Scribbling from the same desk twice, I find it convenient to mention newer points of strategy

rather than repeating my editorial policy existing since earlier issue which is available online

@ RLR Volume 1, Issue 3. Here I prefer to accommodate an author on invitation who was not

part of mainstream academia as such; but made a mark of his own through his contribution

to legal literature on Intellectual property. A veteran in IP matter, both in academics and

practice, Dr. Jayanta Kumar Lahiri is known for hard rigour he undertakes and the insignia

of (t)his rigour seems apparent. Also, I’m elated to receive two pieces of legislative comment

on two newly introduced statutes. Legislative Comment- being my dream column- is meant

to address a long-pending vacuum in the world of juridical literature.

With these words, I prevent myself to stand further between our authors and their readership.

Debasis Poddar

January 27, 2014, Guest Editor,

Ranchi (Jharkhand), Vol. 1, Issue 4,

India. Rostrum’s Law Review.


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www.rostrumlegal.in/journal Page 3

EXCEPTIONS UNDER MORAL RIGHT OF THE

AUTHOR - AN ANALYSIS

JAYANTA KUMAR LAHIRI

ABSTRACT

While delving into the moral rights in the law on copyright, the present article

focuses in brief the most distinctive features and which of the them stands unique

concerning the concept of right and reason therefore. The moral right,

notwithstanding its conceptual formidability and practicality, suffers from some kind

of ambiguity and uncertainty in deciding kind of acts that amount to reputational

damage of the author in relation to his work ultimately pushing the court to be the

judicial umpire of the rival contending parties. That the harmonised standard for

deciding the reputational damage of the author caused by humiliating display of his

work admittedly is some what illusion but the truth remains that the its absence

confounds the problem although this aspect is not dealt in detail here. The article

fleetingly discusses the effects of exception clauses on the efficacy of the moral

right).

Right, without punitive law against infringement, had little appeal to the

conservative positivist juristsi. They consistently held that moral indefensibility of an

act or omission, its severity and public abhorrence notwithstanding, if so facto does

not confer legal right to compensation and relief to the aggrieved unless specific

law provides so. Differently put, conduct arising out of moral aberrations will be

unlawful against a set of enacted rules although opposite may not always be the only

reasonable inference. Conversely, under ethical concept of Hindu raj dharma, moral

shade of an individual conduct, enjoyed primacy over the strict legal façade of the act

as understood under modern parlance, decided the compensatory approach of

retribution. Religious precepts, regardless of difference in tenor and emphasis,

inherently prefer morality over other considerations in dealing human conduct. The


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moral right carves out an exception to the approach to the classical concept of right

for, among others, the reason being that the moral consideration germinates

enforceable right within particular area of intellectual creations.

The moral right, grounded specific principles is an individual right ii. The concept of

moral rights originated in French law with three limbs namely, right of paternity,

right of integrity and right of publication. The right of paternity confers the author

the right to claim authorship in respect of certain type of works, right to restrain

others from claiming the authorship of those works and right to prevent the use of

his name by others in connection with that other person’s work. The right to

integrity confers the owner the right to prevent distortion or mutilation of his work.

The fundamental justification of moral rights is based on the premise that the

works of art belong to their creators and the works reflect the personality of the

author or creator and the work being the embodiment of creator’s personality

therefore must be protected from distortion and mutilation. From the point of

enforceability, it is a branch among other forms of rights but characteristically not

akin to in other respects. The moral rights are essentially personal, non-economic in

nature and are not proprietary rights.. The author, ‘even after the transfer of

copyright enjoys the right ‚to object to distortion , mutilation of other

modification of, or other derogatory action in relation to the said work, which will be

prejudicial to his honour and reputation’.iii The author receives no financial profit

neither can assign moral rights even after assigning the economic rights of the work.

But the author is entitled to claim damages and sue against infringement of moral

rights against any person including the person to whom he transferred the copyright

by assignment.

The Berne Convention (Paris Act 1971) recognized two kinds of the moral

rights of the author namely:

the right to claim authorship of the work


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to object in any distortion, mutilation or other modification or, or other

regulatory action in relation to, the same work which would be

prejudicial to his honour or reputation.

The Convention left it to the rectifying countries to frame statutory mechanism

under their national laws to safeguard the author's moral rights. TRIPS

Agreement although required that Member Sates shall comply with the

main Articles 1 to 21 of the Convention but did not endorse any protection

of the works under author’s moral rightiv.

Judicial approach to the infringement of moral rights is largely determined by

various factors like facts of each case, the category of the work, nature of

alleged derogatory treatment, the use of treatment resulting in alleged

infringement, the contextual laws of the each country and the exceptions.

In Eaton Centre case, simple putting ribbons around the necks of flying gees

forming a part of an art work by Eaton Centre, the Shopping complex, in

Toronto, was upheld by the Canadian courtv being prejudicial to the honour

and reputation of its author. Contrastingly, the British court refused to accept

the plea of violation of integrity of the works of cartoon by the cartoonist

merely because the original size of cartoons was reduced Natural History

Museum Authorities while including the cartoons in a book. The Court held

that the reduction of size of the cartoon did not result in distortion of the

cartoons and therefore caused no prejudice to the reputation and honour of the

cartoonist vi . The bronze mural sculpture which was commissioned by the

government of India from an internationally reputed sculpture was damaged

for being badly kept. It was considered by the court as destruction and

mutilation of the work and held to be infringement of moral rights of the

sculpturevii.

The moral right doctrine under Copyright Act 1957


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The concept of moral rights is given legislative shape in Copyright Act 1957 by

providing author’s special right viii with certain exceptions and moral rights to the

performersix. The section 57 of the Act reads:

Independently of the author’s copyright and even after the assignment either wholly

or partially of the said the author of a work shall have the right-

(a) to claim authorship of the work and

(b) to restrain or claim damages in respect of any distortion, mutilation,

modification or other act would be prejudicial to his honour or reputation:

Moral right under Copyright (Amendment) Act, 2012

Under the un-amended Act, the duration of moral rights was limited to the term of

the copyright in the work. In other words, the author could enforce his moral

rights so long the copyright exists in the work. By omitting the words ‘which is

done before the expiration of the term of copyright’ the amended provision wiped

out the durational limit of moral right and conferred permanent moral right to

the author x. The new provision is slight variation of the provision under Berne

convention but largely similar to that under French law.

Calling for the rationale behind choosing the phrase ‘moral right’ instead of any

other indicative expression receives no convincing explanation. One of the

strained reasons might be the concept that work personifies the author and so the

he can claim moral right over it. But this justification does not go beyond the

theory of ‘right to paternity’ Can a right automatically emanate from the claim of

from the moral perspective? Unless the conduct or behaviour intervening the right

is visited with punishment, moral claim cannot share the same platform with legal

right. But why the authors and performers are chosen to be conferred with such

right solely based on moral consideration under intellectual property law leaving

other rights, if claimed on the moral considerations under other branches law of

property, remains unanswered.


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Apart from those rights granted to him under section 14 of Act , the author also

enjoys special rights which he retains even after the assignment of the

copyright either wholly or partially in respect of particular copyrighted work.

The violation of special rights read with exceptions and explanation, will

constitute cause of action for bringing suit of infringement by the author in

addition to those provided under section 51 of the Copyright Act. The duration of

special rights or moral rights is limited to the term of the copyright in the work.

The term ‘author’ however, has to be interpreted in the light of definition given

in the Copyright Actxi . This right can be enforced either by the author or his

appointed legal representatives.

The moral right, in summary, can be enforced by the author if his work are

mutilated, or subjected to such treatment that causes his reputational damage

affecting his honour and integrity of his authorship even after the assignment or

sale. The moral right transcends beyond the cardinal concept of ownership

because the right prescribes its enforceability even after transfer the ownership

of the work to a third person by way assignment o others legal means.

The exceptions of the moral rights under the law of copyright to some extent

,dwarfed its efficacy from the author’s point of view thus making it a fragile

extension of legal right. Under one of the exceptions, the author’s special rightxii

will not operate in case of failure to display his work to his satisfactionxiii and

therefore an suit of infringement of his right will not stand. The wide ambit

phrase ‘failure to display the work’ coupled with innumerable ways of displaying

the work makes it difficult to decide whether author’s moral right has been

affected or not. For example, can a cartoonist of no reputation or marketability of

his work allege the failure of his work of cartoons and consequent infringement

of his moral right if his cartoon morphed by adding colour to the appearing

bodies? Theoretically he may allege morphing resulted in his reputational

damage and brought dishonour to his work and the defendant may put up many


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defences. Ultimately, the court, if approached by the affected author will decide

which bound to differ due to various reasons.

The exception clause further provides that infringement of moral right cannot be

invoked by the author merely because failure to display his work to his satisfaction.

The exclusionary provision apparently attempts to make a stark distinction

between personal dissatisfaction of the author and the aberration in displaying or

treating the work which detectable by an objective analysis. But if the author is

satisfied that his work has not been subjected to any dishonour affecting his

reputation, he is not aggrieved in any way. The element of personal dissatisfaction

of the author comes into play when treatment mated out to his the work contrary

to what he considers appropriate. Therefore element of personal satisfaction of the

author cannot be eliminated altogether because it would extend a ground of

defence to the defendant.

i Austin’s proposition that law must be backed by commands sits comfortably with these positivist. ii See Dworkin’s supportive logic that ‚Arguments of principle are arguments intended to establish

an individual right‛. ‚ Ronal Dwarkin Taking Rights Seriously‛ p-90 Universal Law publishing Co

New Delhi 2005 iii Berne Convention art 6 bis (i) iv TRIPS agreement specifically provides that ‘ Members shall not have rights or obligations under

the Agreement in respect of the rights conferred under Art 6bis of that Convention.’ v Snow vs Eaton Centre (1982) 70 CPR (2d) 105 (Canada) vi Tidy vs. Trustees of Natural History Museum (1998) 39 IPR 501 vii Amarnath Shegal vs Union of India (2005) Copinger comments that the decision of

the court that the complained act was prejudicial to the reputation of the sculpture may not be

followed in the UK. See Copyright : Copinger & Skone James ed .2011 viii Section 57 of the Copyright Act 1957 read with amendments2012 ix Section 38 A of Act 2012 x Sec 57 of the Act xi Section 2 (d) of the Copyright Act as amended in 2012 specifically mentions that author, in relation

to a literary or dramatic work is the author of the work , the composer is the author of a musical work,

the artist is the author of artistic work, the photographer who takes the photograph is the author of

the photograph and the producer ins the author of cinematograph film and sound recording. xii Author’s special rights and moral right, in spirit and meaning are synonymous to each other

permitting inter-changeability under the respective domestic laws. xiii Italics added


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PROBLEMS OF RURAL CONSUMERS

AND THEIR EMPOWERMENT

THROUGH PANCHAYATI RAJ

INSTITUTIONS

ALOK MISRA

INTRODUCTION

"The State shall take steps to organize village panchayats and endow them with such

powers and authority as may be necessary to enable them to function as units of self-

government." (Article–40)

In State of Uttar Pradesh v. Pradhan Sangh Kshettra Samitii, the Supreme Court observed

that Article–40 does not give guidelines for organizing village panchayats. All that they

require is that the village panchanyats howsoever organized have to be equipped with

such powers and authority as may be necessary to enable them to function as units of self-

government.

The details of Panchayat Raj institutions as political system of local governance are found

in abundance in the history of South-East Asia particularly in the countries of

subcontinent like India, Pakistan, Bangladesh and Nepal. Indian social system has

tremendous vitality. Since racial, religious, cultural, linguistic, geographical and economic

diversity has been coexisting and nurtured since ages, this provides a strong unity to social

system. In simple understanding Culture is day to day pattern of living. In India the

cultural diversity has been maintained as a social policy by the rulers in their polity.

The word 'Panchayat' literally means assembly or Ayat of five or panch elderly and wise

persons. Panchayati Raj Institutions existed, functioned and contributed significantly. It is

important to note that the village panchayats have always been elected bodies and


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functioned as units of local self-government. Gram panchayats are contrastingly apart

and distinct from the unelected khap or caste panchayats prevalent in some parts of

India.

CONSTITUTIONAL AND LEGAL ROLE OF PANCHAYAT RAJ

INSTITUTIONS IN CONSUMER PROTECTION

India is a country with extensive topography, vast geography and consequent economic

diversity. Largest segment of population which is around 70 percent of the population

lives and works hard in rural India. The people in rural areas are engaged in agricultural

and related activities. In independent India the rural economy has rapidly transformed

itself and the economic activities are getting organized very fast. The contribution of rural

economy is significant and it sustains a large section of population in India. Agriculture

and related activities have grown enormously on scientific and technological lines.

Mechanization of agriculture and irrigation has gone a long way. The economic activities

are to be managed and administered in a user friendly manner.

There are more than 72 million consumers in villages and rural India, as per the reports

of various government and non-government organizations. The protection of consumers

in rural areas has become an area of concern. The consumers in the form of farmers and

entrepreneurs are using agricultural inputs and technology to a considerable extent. They

are to be protected. In this the Panchayat Raj Institutions are required to play a vital role.

The powers of these institutions and co-related obligations towards the consumers are

required to be emboldened. It will give a new dimension and role to the functioning of

these institutions. Panchayat Raj Institutions are required to be oriented towards people

and development.

From the second half of the 20th century law rapidly came to be recognized as a tool of

social development and welfare of humanity. The process of social engineering came on

priority. The reforms started coming very fast. It was an urgent requirement to

emancipate people living in Afro-Asia which had been made slums by the colonial powers.

http://en.wikipedia.org/wiki/Khap


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The object of law is to do welfare of humanity, similar to that of all branches of knowledge

like science and technology, engineering, medical sciences, social sciences, political

science, management science, economics etc. India has been strengthened by various

revolutions in co-operative and private sector like the green, yellow, blue, white and pink

revolutions. These developments are the result of the hard work of the people of India.

There is massive production and consumption of goods and services across India. In all

the four sectors of economy there is rapid rise of consumers.

Mahatma Gandhi emphasized on the establishment and organization of the village

panchayats for the administration and development of villages as a unit of self

government. He clearly believed that India can have a strong economy only when the

villages will be self reliant. His philosophy came to be known as Gram Swaraj. Article–40

of the Constitution of India stands explicitly inspired by Gandhian philosophy. It is a

major directive to the State of India in law and policy making.

In pursuance of this directive, Balwant Rai Mehta Committee in Nehruvian era, Ashok

Mehta Committee in Desai era, P.K. Thungan Committee in Rajeev Gandhi era were

major mile stones. The constitutional status of Panchayat Raj institutions by 73rd and 74th

Amendments of the Constitution came during Narsimha Rao era in pursuance of the

dream of Rajeev Gandhi to take democracy to the grass root level. In fact the organized

establishment and constitutional status given to the functioning of these institutions had

become and urgent requirement in the light of the growth of Indian economy as well as

the impact of liberalization and globalization of agricultural and related activities.

By 73rd Amendment of the Constitution Part IX dealing with the Panchayats (containing

Articles 243, 243A to 243O) was inserted. Similarly Part IXA related to the Municipalities

(containing Articles 243P to 243Z, 243ZA to 243ZG) was inserted by the 74th amendment.

For details of the aforesaid provisions Eleventh and Twelfth Schedule were also added in

the Constitution. Detailed provisions defining Gram, Gram Sabha, Panchayat, composition

of Panchayats, Panchayat area, Intermediate level, District level, reservation of seats,

disqualifications for membership, powers, authority and responsibilities of Panchayats,


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power to impose taxes by, and funds of the Panchayats, constitution of finance

commission to review financial position, audit of accounts of Panchayats, elections to the

Panchayats etc. have been enshrined. Similar details with regard to the Municipalities have

also been provided.

Article 243G mentions Powers, authority and responsibilities of Panchayats and clearly

lays down that the Panchayats at appropriate level shall have the responsibilities for the

preparation of plans for economic development and social justice, the implementation of

schemes for economic development including those in relation to the matters listed in the

Eleventh Schedule. Similarly Article 243W and Twelfth schedule enshrine the similar role

of Municipalities.

The Constitution (73rd Amendment) Act, 1992 enshrines a key role for the

Panchayati Raj Institutions related to the 29 subjects such as education, health, rural

housing, drinking water, agriculture etc., as mentioned in the Eleventh Schedule of

the Constitution. States are required to transfer these functions to the Panchayati Raj

Institutions and to devolve funds, functions and functionaries upon the Panchayati

Raj Institutions for discharging these functions. The Comptroller & Auditor General

of India is responsible for exercising control and supervision over the proper

maintenance of accounts and the audit of all the three tiers. The format for

preparation of budget and for keeping accounts is prescribed by C&AG. The

classification of transactions in Panchayati Raj Institutions their budgets and

accounts has been structured on a function-cum-program basis to provide uniformity

in three levels of governance i.e. Union, State and Local Government.

The role of the Panchayati Raj Institutions in consumer education and their protection

is of prime importance in present times. The evolution of law in the field of consumer

protection and the constitutional status accorded to Panchayat Raj Institutions are closely

related. Both of them achieve special significance and meaning in the light of the fact that

India is a country with extensive rural base and a large number of consumers are living in


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rural areas. Rural markets are feeling the impact of globalization and liberalization of law

and economy.

The economic prosperity achieved by the common men in India by their hard and

sustained work has gone a long way in pre and post green revolution era. This

improvement in the economic status has made Panchayat Raj Institutions and consumer

protection more meaningful. Education and awareness in rural areas has increased and is

to be increased further. The thought process of consumers in rural areas is evolving and

getting rationalized resulting into the emergence of better and more rational preferences.

The behavior of consumers in rural areas is becoming systematic and is changing in a

positive direction. In this context the innovations in the field of rural management, science

and technology have played a crucial role. With the generation of massive requirement in

the resurgent nation this is a thrust area in which law related to consumer protection can

not only protect the welfare of masses but also can work as a tool for social development

in conjunction with Panchayat Raj Institutions.

Democracy is incomplete unless the local government and the individual consumers

are empowered. There was a time when consumer came last and was least important

in the economy but now the consumer is the mainstay of empowerment. One of the

major drawbacks of the present consumer protection movement is that it is restricted

to the urban areas. One way to empower the rural population is to empower the

members of Panchayati Raj Institutions and through them the masses. On the one

side there is growing market and on the other side there is manipulation and

exploitation which impairs the interests and rights of the consumers. Consumer

protection and business should proceed together. Markets are to be disciplined with

orientation towards the satisfaction of the interests of consumers.

EMPOWERMENT OF CONSUMERS IN RURAL AREAS

India started transforming itself rapidly with the promulgation of the Constitution. The

Constitution enshrined the Preamble containing objectives of socio-economic justice, the


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fundamental rights for the many fold development of the individuals, and the Directive

Principles of State Policy to usher the era of welfare in India. The establishment of

Planning Commission to be chaired by the Prime Minister, by a Resolution of Cabinet on

15th March 1950 within 47 days of the promulgation of the Constitution was a significant

step. The policy of ceiling i.e. hadbandi on land holdings and bringing scattered peaces of

land i.e. chakbandi were major steps of land reforms. Another significant effort in this

context was of Bhudan and Gram Dan movements by Acharya Vinoba Bhave.

The turning point of transformation of agriculture and rural India came with the green

revolution. The government made signal innovations in the empowerment of simple,

dedicated and honest people in rural India through Community Development Programs

like Food for Work Program, National Rural Employment Program (NREP), National

Rural Landless Employment Guarantee Program (RLEGP), Integrated Rural

Development Program (IRDP), Training of Rural Youth for Self-Employment (TRYSEM)

etc. The legendary Jawahar Rozgar Yojna (JRY) in which the aforesaid programs got

merged and introduction of Perspective Planning were milestones achieved by the

government. Granting of the constitutional status to Panchayat Raj Institutions was the

logical conclusion arrived towards taking democracy to the grass root level. The

empowerment of consumers in rural areas became a visible reality with Insurance of

Agricultural Sector under the auspices of General Insurance Corporation (GIC) and

making available the credit cards, named Kisan Credit Cards. Mahatma Gandhi National

Rural Employment Guarantee Act, 2005 (MGNREGA) also aims to empower the

consumers in rural areas.

The welfare measures as mentioned above have contributed to the general well being,

happiness and prosperity in rural India giving vast purchasing power and emergence of

rural consumers and markets. The role of the banking industry and of NABARD has

helped a lot in this direction. The expansion of cooperative activities in general and of

IFFCO, KRIBHCO and NAFED in particular has been beyond imagination. The HBJ


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(Hazira-Babrala-Jagdishpur) pipe line, rightly named as Gas Ganga has been instrumental

in giving and entirely new dimension to rural economy of Northern India.

The philosophy and aim of Co-operative Federalism is proving itself to be the correct

objective in nation building. The life and life style of rural India has tremendously

changed and getting updated and upgraded. This has narrowed down the gap between

Urban and Rural India. Rural Marketing Association of India (RMAI) and MART are

providing valuable inputs in this direction. The income in rural areas and of rural

consumers is on the rise as is visible from enormous growth in rural marketing

operations. The rural share of popular consumer goods and durables is also rapidly

rising. The growth and potential in rural markets is enormous and significantly more

as compared to Urban markets.

The Pharmaceutical Revolution at the dawn of 21st century popularly came to be

known as Pink Revolution has made India the largest manufacturer of medicines in

the world. The medical facilities have reached rural India vertically and have spread

horizontally making it a thrust area in rural markets. Significantly Pink Revolution

has occurred in private sector. Indian economy is rapidly transforming itself into a

global economy with the arrival of patenting in the field of agricultural research and

development.

The invention of Internet led to Information Technology Revolution, ultimately bringing

Cell Phone as a necessity in the hands of most of rural consumers. Requirement and

availability of mobile phones, computers, internet connectivity, laptops, palm tops and

information highways have changed the form, shape, nature and extent of consumer

markets in rural India generating remarkable potential changes and growth. Super

conductivity and Optical Fiber Technology has contributed a lot towards Rapid Transit

Transportation Systems and Tele Communication Technology. The construction of

extensive road networks has generated usage of automobiles on a large scale in rural

India. Automobiles have given wheels to the people of rural India. Their life has become

faster and business oriented.


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PROBLEMS OF CONSUMERS IN RURAL AREAS

Rural consumers in emerging market countries are among the largest and fastest

growing segments of the world's population. Rural India is growing at a fast speed

and is a potential market for the goods and services. The extent of rural markets in

rural India is expected to be doubled than that of urban India. Liberalization

resulting into Globalization, rise in income, expansion of media and information

technology in rural areas, women empowerment, improvement in infrastructure etc.

are some of the catalysts for the growth of rural markets.

With the growth and expansion of rural market at such a fast pace there is a

consequential and simultaneous rise in the problems and grievances. The major

difficulties and problems of consumers in rural areas are lack of awareness,

adulteration, less and incorrect weighing and measuring, quite often absence of

safety and quality in equipments, defective goods and deficient services,

misrepresentation and unfair assurances, misleading warranties and guarantees, high

pricing, cheating in the form of spurious and mirror image goods and malpractices

like selling on more than prescribed minimum retail price, faulty weights and

measures, deficiency in services, misrepresenting advertisements etc. The six

sensitive areas in consumer protection are related to Credit Cards, Milk production

and supply, Banking, Travel, Telecommunication and Consumer goods.

The reality is that the conditions are unfavorable for the consumers. They stand

exploited. Ignorance is an important factor in the exploitation of the consumers

especially in the rural areas. With economic reforms the market is gradually being

transformed from a predominantly sellers market to a buyers market where choice

of the consumers depends on their awareness level. Consumer rights could be

protected in a competitive economy only when right standards for goods and services

are ensured by evolving a network of institutions and legal protection system. To

ensure consumer welfare is the responsibility of the Welfare State.


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Even a manufacturer or provider of a service is a consumer of some other goods or

services. If both the producers and consumers realize the need for co-existence,

adulterated products, spurious goods and other deficiencies in services will get

reduced.

The rural consumer remains disadvantaged as their right to information, choice,

redress, education and to be heard are not sufficiently fulfilled. There is need for the

improvement in the existing consumer protection and consumer welfare polices for

meeting the specific requirements of rural consumers more effectively. Indian

consumer is also to be protected from wrong influences which some times come

from the media.

In fact Mahatma Gandhi had rightly said that a consumer is the most important

visitor on our premises. He is not dependent on us, we are on him. He is not an

interruption to our work; he is the purpose of it. We are not doing a favour to a

consumer by giving him an opportunity. He is doing us a favour by giving us

opportunity to serve him. As per the Gandhian thought the consumers and producers

were not looked as separate individuals. The process of production was supposed to

be decentralized and distributed in parity. In consumer protection movement there is

need of emphasizing and resorting to Gandhian values with decentralization as a

policy for protecting all, including consumers.

The benefits of the decentralization must be able to reach the poorest of the poor. As

Mahatma Gandhi clearly observed ‚Whenever you are in doubt or when the self

becomes too much with you, apply the following test: Recall the face of the poorest

and the weakest man whom you may have seen and ask yourself if the step you

contemplate is going to be of any use to him. Will he gain anything by it? Will it

restore him to a control over his own life and destiny? In other words, will it lead to

Swaraj for the hungry and spiritually starving millions? Then you will find your

doubts and your self melting away.‛


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EMPOWERMENT OF REDRESSAL MECHANISM

Protection connotes that someone is there as protector and protected. Consumer

Protection Act, 1986 aimed to provide better protection to the consumers.

Consequently consumer movement acquired momentum. It provides three tier

structure from district to national level for the redressal of consumer grievances.

The Act enshrines consumer rights which are internationally accepted. The Act

provides for simple, speedy and inexpensive redressal to the consumer grievances

against defective goods, deficiency in services including the restrictive and unfair

trade practices.

An enlightened consumer is an empowered consumer. An aware consumer not only

protects himself from exploitation but brings efficiency, transparency and

accountability in the production of goods and services. It is important that top

priority be accorded to Consumer Education, Consumer Protection and Consumer

Awareness. The Consumer Protection Act, 1986 applies to all goods and services

unless specially exempted by the Central Government, in all sectors whether Private,

Public or Co-operative.

A person can make a complaint if he is not satisfied with the standard of service

which has been provided to him. Anyone who feels that he was provided a poor

service or is not satisfied with the product or the service can make a complaint in the

Consumer Court. Consumer complaints are legal methods for expressing

dissatisfaction with regard to a service or product. It is the legal way of filing a claim.

The important rights of consumers are Right to Safety, Right to Information, Right

to Choice, Right to be heard, Right to Redress and Right to consumer education etc.

Every body is using goods or services in day today life and is a consumer. However,

the reality is that the conditions are not favorable and conducive for consumers. They

are being exploited and cheated especially in the rural areas. For this the consumers

are to be made aware of various aspects and their rights. The best way to educate the


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rural consumers is to hold the meetings of Gram Sabha regularly which are

generally attended by most of the villagers.

The task of consumer protection has three basic dimensions. First, to ensure a legal

framework of legislations related to consumer protection. Secondly, to evolve

standards so that consumers are able to exercise their choice amongst different

products. Standards are the essentials for quality and play a key role in consumer

protection. Standards are technical specifications of usage of proper

terminology, codes of practice and procedures and of management systems. Thirdly,

awareness of consumers and their education for protection is very important. How to

educate the rural masses still remains a challenging task.

Some significant measures are visible in this direction Multi-media publicity

campaigns have been launched through print and electronic media on the issues

which are very relevant such as putting ISI marks, Hallmark, Labeling, MRP,

etc,. Advertisements are now released through a network of national as well as

regional newspapers. The Department of Consumer Affairs has video spots of 30

seconds duration on various consumer related issues, which are being telecast

through Cable and Satellite channels. Special programs have also been telecast on

Lok Sabha TV and Doordarshan to highlight the issues relating to consumer

awareness. Issues pertaining to rural and remote areas have been given prominence

in the various advertisement spots.

Consumer Protection Act, 1986 has its own limitations. Although it is providing

protection to the rights of consumers yet it requires to be revisited in the light of

extensive changes during last two decades.

The disputes redressal mechanism related to consumers operates through consumer

forums. They exist at district, state and national level to redress the complaints of

consumers. The Consumer Forum is bestowed with the power to order replacement

of the commodity or removal of deficiencies in goods and services or refund of


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payment. It can also award compensation for loss suffered. The three-tier system of

consumer forums under the Act reaches to urban areas only. It is difficult for rural

consumers to reach the forum. The extension of the consumer forum in rural areas

will give relief to consumers.

Consumer forums and Lok Adalats organized by them are required to reach villages.

In this regard there is a significant role for the Panchayat Raj Institutions in

protecting the rights and interests of rural consumers. Easy and available remedy

will ensure further participation of people in rural areas in the growth and change of

rural and semi-urban India. The Gram Panchayats are viable constitutional

mechanism present across India. Through this constitutional mechanism the

consumer movement can be made effective and awareness among rural consumers

can be spread. In this context required amendments can be made to establish

consumer forums at Gram, Block and District level.

The Gram Panchayats can play a crucial role in spreading awareness. Information

Technology and both print and electronic media can be used for this purpose. The

relevant literature in this regard in languages of the people can be extensively

circulated in hard as well as in soft versions. The Gram Panchayats can use media in

the form of documentary films. Street plays can also go a long way in spreading

awareness. The teachers and students can do wonders in taking the consumer

awareness programs at every door of villages.

Involvement of academicians and researchers in consumer movement is of vital

importance. Till now there is not much of the involvement of teachers, students,

researchers and educational institutions in generating awareness about the problems

of consumers and their protection. There is a need to encourage teachers and

students to take up this cause in rural areas. Active participation of the consumers in

awareness drives can ensure consumer welfare.


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There is need of improvement in infrastructure of the Consumer Forums, sufficient

allocation of funds in budget for their effective functioning and for consumer

protection and welfare, provision for training of staff, and members of the Consumer

Forums and provision of necessary legal aid to the consumers in order to enable

them to defend themselves.

CONCLUSIONS AND SUGGESTIONS

In a democratic system people are required to be made active participants in the process of

governance and development. This helps in strengthening the democratic fabric and

processes consequently developing the sense of belonging in people. It also ensures

utilization of the knowledge and experience of the people as a human resource. In this

way people develop skills also in them to contribute and accelerate the process of

development. Decentralization and devolution of legislative and executive powers is the

primary requirement of resurgent nation. Earlier village assemblies resolved disputes

between individuals in villages. Now the Constitution and law has decentralized and

delegated several administrative functions to the local level. This has empowered

elected Gram Panchayats. This decentralization of the aforesaid powers and functions

with regard to such a huge population is historical in the history of humanity. C.

Rajgopalachari rightly opined 'A knitting together of people's hearts makes democracy'.

The rights of consumers are to be protected in every sector and especially of the rural

consumers. The Panchayat Raj institutions are required to be made the pivotal agencies in

educating and protecting the consumers through policy making. The active involvement

and participation from the Union and State governments, the educational

Institutions, the NGO’s, the print and electronic media and the adoption and

observance of a code of code of professional conduct by the trade and industry and

the citizen’s charter by the service providers is necessary for the success of the

consumer movement.

http://en.wikipedia.org/wiki/Gram_panchayat


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Impact of participation of women as functionaries in Panchayati Raj Institutions is

significant. It has enhanced their self-esteem, confidence, decision-making ability,

respect within the family and in community. Their voice has increased in decisions

related to economic matters and other issues in their family. Women who received

training have performed better. It should be organized regularly covering rules and

regulations, administrative issues, budgeting, finance and the implementation of

development schemes.

The need of the hour is for total commitment to the consumer cause and social

responsiveness to consumer needs. It is important that this should proceed in a

harmonious manner. The majority of consumers in India are not aware of their

rights and existence of the consumer forums. The access to consumer forums is not

available to them due to numerous factors in general and absence of the network,

branches and benches of consumer forums below the district level in particular.

Many a times the consumers suffer financial injuries. Although there is Indian

Contract Act of 1872 yet there is no comprehensive legislation like Indian Torts Acts

till now. The codification and enactment of Indian Torts Act which is pending since

British times is urgently required for the fair justice with regard to civil wrongs. The

doctrine of caveat emptor and caveat vendor are required to be in balance. The calls

like ‘Jago Grahak Jago’ have reached in every household as a result of the awareness

campaigns undertaken during the recent past. The State has endeavored to inform

the common men of their rights as a consumer. Consumer awareness initiative in

rural and remote areas should find top priority in governance.

Now, the Fundamental Right to Education in Article 21A of the Constitution is set to give

a further fillip to consumer protection movement. MGNREGA is a movement towards

making Right to Work a fundamental right and actualizing the directives of law and

policy making as mentioned in Article–41 of the Constitution. Major concern in this

direction is of corruption, financial misappropriation of funds and lack of commitment

towards the cause. The issue is of humane governance and not simply of good


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governance. For this socially responsible skilled professionals are to be produced as their

end products by universities, which are sanctuaries of the nation, its happiness and

prosperity.

In the end it is to be appreciated and kept in mind that although Panchayat Raj

institutions can play a crucial role in policy making and their implementation yet the

judicial function in the adjudication of disputes can not be given to them because

that will go against the principles of natural justice. Since huge finances are and will

be involved in development, in many cases Panchayat Raj institutions will be a party

in disputes. So they can and should not be a judge in their own cause. Awareness,

expansion and availability of the network of consumer forums below the district level

shall be the right mechanism.

i AIR 1995 SC 1512.


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E-CONTRACTS: MAIL BOX RULE AND LEGAL

IMPACT OF THE INFORMATION TECHNOLOGY

ACT, 2000

ATUL KUMAR PANDEY

The principles governing the E-contracts are based on the traditional law of contracts.

According to section 10, of the Indian Contract Act, 1872 essentials of a contract

include:

1. Parties competent to contract

2. Existence of consent of parties

3. Consent being free

4. Existence of consideration

5. Consideration and Object being lawful

6. The agreement does not being expressly declared void.

However, before ascertaining whether a contract is valid or not, it is important to

ascertain whether a contract has been concluded at all. A contract is formulated

when the offer is communicated by the offeror to the offeree and the same is

accepted by the offeree, whether expressly or by implication. The key to

understanding electronic contracting is that is to regard the Internet simply as

another tool of communication. Until now, new modes or tools of communication

have been adequately incorporated into the legal system for example the telex or the

fax machine. In theory, therefore law is capable of dealing with the issues raised by

electronic means of communication.


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COMMUNICATION IN ELECTRONIC FORM AND E-CONTRACT

ISSUES:

An offer or acceptance, like any other expression of will or intention, may be

communicated by any means, including by messages in electronic form (called

electronic record in Information Technology Act, 2000). The provisions of Indian

Contract Act, 1872 are wide enough to cover such transactions. In the context of

contract formation, unless otherwise agreed by the parties, an offer and the

acceptance of an offer, or either of them, can be expressed by means of data

messages or electronic records.

Where electronic records are used in the formation of a contract, that contract shall

not be denied validity or enforceability on the sole ground that data messages was

used for that purpose according to provisions of Section 10 A of Information

Technology Act, 2000. As between the originatori and the addresseeii of the electronic

record, a declaration of Will or other statement should be valid, effective and

enforceable even though it is in the form of a data message.

1.1 IS ONLINE CONTRACTING INSTANTANEOUS?

One might express the view that email and other methods of online contracting are

instantaneous communications and that the general acceptance rule should apply to

their acceptances. In fact, this argument may be true in respect to website

acceptances since there is no actual space in time between the sending and the

acceptance of the offer. But, contracting through email messages is different than

that happens in website contracting and hence cannot be treated as instantaneous

communication.

HOW DO PEOPLE CONTRACT ONLINE?


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To determine when to treat online contracting instantaneous and when not, we need

to understand methods of online contracting. There are two main methods: click

wrap and e-mail.

A. Click-wrap: Click wrap contracts are most commonly found in the workings of the

World Wide Web. The usual formation of such a contract begins with the web vendor

placing information about a product on the web. This information could be in the

form of an advertisement, an invitation to offer, or an offer of a product or service for

the due consideration. There is usually a hypertext order form within close electronic

proximity which the consumer fills out and this form will contain a button labeled ‘I

Accept’, ‘Submit’, ‘Purchase’ or some such phrase. When the computer clicks on this

button, the order is sent to the vendor, who usually reserves the right to proceed or

not to proceed with the transaction. In many instances, however, the order will be a

processed automatically and in this respect, it is similar to a purchase in real world.

Communications in the manner described above, will be treated as instantaneous.

However, the situation is different with regard to contracting through email.

B. E-mail: The text of email messages is the digital equivalent of a letter. E-mail

without being in existence physically, is still capable of performing all the functions

of a usual email. It can be used to send offers and acceptances. However, because of

some technical reasons e-mail delivery systems is different from standard mail

delivery system and this creates complications for e-contracting. To understand the

complications, first we need to understand how an e-mail is transmitted.

HOW IS E-MAIL TRANSMITTED?

A user who has an email account can draft a message that he is going to send

without having a connection to the internet. After the user creates this message on

the sender’s computer the first stage of the e-mail’s journey starts when he opens the

connection to the internet server provider (ISP). The second stage occurs at the

moment the sender actually presses the send button, which, so long as the network is


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not busy and the receiver’s email address has been correctly entered, transmits it

along the international network of computers until it reaches the intended receiver’s

ISP. From the ISP the email enters the internet where it may bounce from a

minimum of one computer to many millions, before reaching the ISP of the receiver.

The recipient will then be able to retrieve the message by logging onto their ISP and

downloading the message.

In fact, the e-mail’s journey, while travelling through the internet, may involve

travelling across the world even though the person receiving the message is in the

next building. This journey takes a moment, sometimes minutes, until the recipient

receives the email message. This fact does not differ even, if the internet service

provider for the offeree is the same as for the offeror, as would be the case if they are

members in the corporation or the university email network. This is because the

transmission of email through the network depends entirely on the viability of the

ISP for the offeree or the offeror.

For example, if the offeree is in London and the offeror in New York, then the

journey should start from London’s internet service provider of the offeree and go to

another network service provider in the Atlantic and perhaps it will then need two or

more connections prior to it reaching the offeror’s service provider in New York. The

speed of email messages depends, in these cases, on whether one or more of these

service providers are busy with millions of applications from other internet users.

Considerable delays may occur in email communication between when a message is

sent and when it is received by the recipient. These delays result from the complex

path over which the email is sent. For example, if person A in London sends an email

message to person B in Nigeria, usually there will be no direct link between the

computer systems. This explains why, on occasion, an email takes a longer time than

usual to reach the recipient

It can be said that email is not an instantaneous form of communication, because as

explained previously, there can be gap in time between dispatch and deemed receipt.


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This conclusion was recently pointed out in a Singapore case, in the judgment of

Rajah JC, in Chwee Kin Keong v Digilandmall.com Pte Ltdiii ‚… unlike a fax or a

telephone call, it is not instantaneous. Emails are processed through servers, routers

and internet service providers. Different protocols may result in messages arriving in

an incomprehensible form. Arrival can also be immaterial unless a recipient accesses

the email, but in this respect email does not really differ from mail that has not been

opened.‛

Usually, an acceptance is considered as having been sent at the time the acceptance

went out of the possession of the offeree and into the possession of the third party

allowed to receive it. The third party, of course, is neither an agent of the offeree nor

of the offeror, but in the situation of email, it is the ISP. Even though the offeree’s

server is not under the offeree’s control, it is considered a provider for the internet

service to the offeree and likewise, it is not agent to the offeree, as it is an

independent entity, such as a company server or a university service provider.

In transmission of the acceptance through email, the message is considered to be out

of the offeree’s position at the time the offeree connects to the internet and presses

the ‘send’ button. The offeree may receive acknowledgement that the message is

successfully sent (if this acknowledgement is available in his email system),

otherwise the offeree will receive a message in his mail box system, indicating a

failed delivery notice of an email which has not been successfully transmitted. There

are times when a computer freezes upon sending a message, the offeree should at

that time resend the email, because the message may not have been sent or may

have been altered when it was frozen. Clarifying the moment of dispatch by time can

be ensured by looking at the time of sending of the email, is recorded by the ISP and

can be found by looking in the offeree’s account. This time usually corresponds with

the time which appears on the sender’s computer at the time of sending the email.

Some email accounts embody a universal GMT timing of the provider of the email

account itself. There is also the provision of time-stamping authority in Information


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Technology Act, 2008. Time-stamping is the process of securely keeping track of the

creation and modification time of a document.

INVITATIONS, OFFER AND ACCEPTANCES

Before we further investigate the details of electronic contracting we must consider

whether these contracts are actually legal and binding. In general, the contract law

will enforce any form of contract supported by consideration, whether oral or written,

formal or informal, as long as the intention of the parties can be clearly discerned to

create legal relationship. If it satisfies, the essentials of the contract according to sec

10 of Indian contract Act as specified at the beginning of this unit, it will be

enforceable. Thus, there are no reasons in principle and legally to prevent the

enforcement of electronic contract.

A contract is formed when there is meeting of mind between the parties. This is

usually found in clear and unambiguous offer followed by similarly clear and

unambiguous acceptance. An important distinction needs to be made here between

an offer, an invitation and an advertisement. A offer is a proposed set of terms which

can form the basis of a contract. An invitation to treat is simply an invitation to make

an offer for a product or service. Hence, an advertisement, as a form of an invitation

to treat, also acts as carrier to information upon which contracting decisions might be

based. Significantly, an offer will always contemplate acceptance and therefore it

must always be something capable of being accepted.

This is particularly important in the Internet context because the distinction between

advertisements, invitations to treat, and offers included in websites are often blurred

by vendors. If there is an offer, an affirmative response means that a contract is

formed. If a statement looks like an offer but it is not capable of being accepted, it is

only an invitation to offer, and then an affirmative response is only an offer. A well-

established real example of an invitation to offer can be found in supermarkets.

Goods on the shelves are presented by the shop as an invitation to offer, and goods


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subsequently being taken to the cash counter and presented by the shopper is treated

as an offer.

Applying these principles to the World Wide Web, the electronic proximity between

the advertisement on web and the actual point of sale is likely to render the status of

a message closer to an invitation to offer in a shop than to an advertisement that we

might see in a magazine. Hence, a consumer who clicks on a form in a click wrap

situation is generally making an offer and the vendor will be the party accepting the

offer. This, of course, is not universally the case, as it is quite possible for a vendor to

make a clear and unambiguous offer on the World Wide Web and the consumer,

through the click of the mouse, accepts the offer.

TERMS OF A CONTRACT

Terms can be incorporated into a contract in a number of ways. A contract can

contain these three distinct types of terms:

Express terms

Terms incorporated by reference

Implied terms

Before a contract can be formally concluded all the terms of the contract must be

brought to the attention of the parties. Otherwise, there cannot be a meeting of

minds. This is crucial both in terms of both e-mail and click wrap contracts. In the

former, parties must take care to avoid contradiction and confusion if negotiations of

terms are held using e-mail; this is especially so if the negotiations are lengthy.

Parties must also take care to identify the documents which are intended to form part

of the contract. In the event that terms of a contract are imprecise, the effect of the

contract may be substantially altered through a different interpretation of the terms

of the terms from that originally intended. In the case of click wrap contracts, web

site designers must take care to ensure that all terms are brought to the attention of


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the consumers before they are presented with the opportunity to purchase a product.

Often the terms of click wrap contracts are incorporated by reference.

Incorporating terms by reference is most important for click wrap contracts. This

means that the terms of the contracting parties are set out in different document and

incorporated by reference. In click wrap contracts, the terms and conditions of the

contract are usually located on a separate web page, rather than being embedded in

the contract page. The problem is that both parties must know that these terms are

part of the binding contract. The vendor must take all reasonable steps to bring the

terms to the attention of the other party. As advertisements on web are invitations to

offer and not contracting documents, the potential customers would not expect to

find terms and conditions of contract contained in the web advertisements.

Hence the design of the web site must be such that before the consumer has the

opportunity to click ‘Submit’ or ‚I Agree’, the terms must be clearly brought to his or

her attention. The onus is upon the web designers to enure that consumers read and

acknowledge the terms and conditions. In order to do this effectively, the usual

practise has been to require consumers to tick a box or clicks on the

acknowledgement that the terms and conditions have been read. If the consumer

checks the box or clicks on the acknowledgement, the terms will be incorporated,

regardless of whether they have been actually been read. If this is not done, the

purchase order or other agreement will not proceed.

Implied terms usually arise separately from the contract formation process and are

usually localised. This means that, in the event of a dispute, the governing law of the

contract would be a central concern, as would be the type of contract at issue. So this

becomes removed from the method of contract formulation in general. Terms may

be implied by fact, on the basis of customs or usage, or by construction of the

contract. Questions of implied terms are case-specific and will turn on the particular

relevant laws of a particular jurisdiction, such as unconscionable conduct or business

efficacy or on the subject matter of the contract.


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FORMATION OF A CONTRACT AND THE POSTAL

ACCEPTANCE/MAILBOX RULE:

The final step to understand e-contracting is the issue of when and where the

contract is formally made or concluded. The general rule is that contract is made

when acceptance is communicated from the offeree to the proposer/offeror.

Accordingly, there is no contract where the acceptance is not communicated to the

proposer, the reason being that it would be unfair to hold proposer by an acceptance

of which he has no knowledge. The location of the formation is decided according to

where the offeror receives notification of the acceptance. However, there is well-

known exception which was made to facilitate contracting between the parties at a

distance- The postal acceptance rule.

PARTIES AT A DISTANCE

When parties are in the presence of each other, the proposer and the acceptor knows

that the acceptance has been communicated, if they are at a distance, they depend

upon other modes of communication. The modes used may be instantaneous,

namely telephone, telex etc. or they may choose other modes like post, courier,

telegram, fax or email.

The conclusion of distance contracts has been one of the controversial issues in the

law of contract formation. It raises some question marks, especially with regard to

the type of rules that should govern the timing of contract formation. More

specifically, a strong debate has been emerged recently as to whether the postal

acceptance rule may apply in respect to contracting through electronic medium like

email.

First, it has been argued that the postal acceptance rule applies to the Internet

because the communication has been entrusted to a third party such as ISP acting as

a parallel to postal system. Second, it has been argued that the reason for the


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application of postal acceptance rule applies because the system of Internet is similar

to postal delivery and hence is non-instantaneous form of communication.

NON-INSTANTANEOUS MODE OF COMMUNICATION AND

FORMATION OF CONTRACT: EVOLUTION OF MAILBOX RULE

The postal acceptance or mailbox rule was first established in the case of the court of

Adams v Lindselliv when the court had to decide the moment of contract formation

by post. The court found that parties when communicating acceptance by post were

not sure at the precise time the acceptance had been communicated. As postal

communication is subject to delay, the parties could not be simultaneously aware of

the communication. This created a number of problems and has led to a formulation

of the rule. This rule as accepted in the common law legal systems is: ‚Where the

circumstances are such that it must have been within the contemplation of the

parties that, according to the ordinary usages of mankind, the post might be used as a

means of communicating the acceptance of an offer, the acceptance is complete as

soon as it is posted‛.v

The uncertainty regarding the moment of contract formation does not happen in the

environment of face-to-face communication or even in distance contracting where an

instantaneous method of communication is used. In this kind of contracting, all

parties are aware of contract conclusion and they do not face problematic issues such

as delay or failure of transmission which occur in non instantaneous

communications.

In contrast, the case of Adams v Lindsell, adopted the rule to avoid ‚the extraordinary

and mischievous‛ consequences which could follow if it were held that an offer

might be revoked at any time until the offeree was in the position of ‚accepting it had

been actually received‛.vi This justification for the postal rule appears to provide the

best solution in determining the time that the parties reach consensus ad item and it


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was felt, that at the time of posting the letter, there would be a greater chance of a

‘meeting of minds’ occurring than at the later time when the letter was delivered.

Another reason has been suggested for the validity of this rule, is that the offeror

must be considered as having made the offer throughout the whole time that his

offer is in the post, and that therefore, the agreement between the parties is complete

as soon as the acceptance is posted. This idea depends on the assumption that the

offer creates a power that binds both parties and that an acceptance is an exercise of

that power. Consequently, the offeror has, in the beginning, full power to determine

the acts that are to constitute acceptance. However, after the offeror makes that

determination, the legal consequences are out of his hands because an offer has then

become effective and the offeree has an advantage over the offeror in the contract

formation process. The offeree may need additional time to decide whether or not to

accept the offer and during that time, may need to spend money and effort in

reaching to a decision.

JUSTIFICATION OF MAILBOX RULE

It can be said that this rule is effective as it is takes care of both of the business

convenience of the offeree and the fair allocation of risk, as it establishes a finite date

for the contract and avoids circular communication. Any delay which occurs between

sending and receiving post letters creates potential risk for both of parties due to the

uncertainty as to preciously when the message is deemed to have been received. This

justification may be considered as the corner stone for application of the postal

acceptance rule.

For example, if the offeror asks for notification, then the offeree would need

notification of the receipt and so on. Another way of illustrating this is demonstrated

if we consider that A is required to receive B's acceptance, then B should have the

right to receive notification from A, that the acceptance was received, and A should

have the right to receive notification from B, that the notification of receipt of the


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acceptance was received and so forth. Carrying this on to its logical conclusion,

putting the risk in the hands of the offeror would appear logical since it is he who is

the master of the offer and he is the position to for or stipulate a specific action in

order to be exposed to the potential risk. vii

The mailbox rule is further justified on the ground that it limits the power proposer

to revoke the proposal after the offeree has acted upon the offer. The rule is justified

on the basis of commercial convenience.

These traditional justifications have been argued in respect to post contracting since

as we explained above there is a gap of time and a delay between sending a letter and

receiving it and parties are not in a position that they can control transmission of

letters by post. Thus, it can be argued that if electronic contracting is similar to

contracting by post then the postal rule should be applied to electronic acceptances

like emails.

Under the UNDROIT principles, acceptance is complete when it reaches the offeror;

the reason for adoption of the ‘receipt’ principle being that the risk of transmission is

better placed on the offeror than on the offeree, since it is the former who chooses

the means of communication, who knows whether the chosen means of

communications is subject to special risks or delay and who is therefore able to take

measures to ensure that the acceptance reaches its destination.viii

Another important reason for applying the postal rule is that it avoids any business

uncertainty regarding the timing of email contracts. For example, applying the

general rule will create uncertainty in what is the definitive time of considering the

email formed. If A sends his email acceptance late Friday afternoon and the recipient

B, left his office at lunchtime not to return until the following Monday, at what time

can we consider the time of receipt? Is it on Monday morning when B returns to work

or at any time when the B opens his email account and accesses the particular email,


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even if it was out of the working hours? In fact, applying the postal rule will avoid

such uncertainty and create a definite time regarding to email contract conclusion.

Email is considered to be a non-instantaneous method of communication and

therefore subject to delay. Contracting by email has been considered as the digital

equivalent of the postal system. According to the difficulties with the transmission of

email, delays, failure of networks, hacking by third parties or incorrect email

addresses of intended recipients, may delay or prevent the delivery of an email. They

suggest therefore, that risk of non-delivery of the email, as with the ordinary post,

should lie with the offeror. Nevertheless, it should be kept in mind that similar issues

of delay identified in relation to telexes are similarly applicable to email. In fact, no

universal rule can cover all situations. These possibilities were not sufficient to

persuade courts to find that the general rule of communication should be displaced.

Likewise with email, the mere possibility of delays, incorrect addresses or

technological failures may not be sufficient to create a universal rule that an email

acceptance is effective at a time other than communication.

Generally, courts tend to apply the general rule in cases where there is an

instantaneous method of communication, such as the telephone or the EDI or where

they are virtually instantaneous and direct, such as telex. In the case of Entores Ltd. v

Miles Far East Corporationix , the court concluded that the contract was made when

the acceptance was received by the plaintiffs in London because:

‚..….So far as telex messages are concerned, though the dispatch and receipt of

a message is not completely instantaneous, the parties are to all intents and

purposes in each other’s presence just as if they were in telephone

communication, and I can see no reason for departing from the general rule

that there is no binding contract until notice of the acceptance was received by

the offeror‛.


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Where the acceptor uses the telephone or telex for communication, the acceptor will

generally know if his communication has not reached the proposer and can try to

send it again. The rule is sound and practical because the oral acceptance may be

drowned by the noise of a flying aircraft or the telephone may go dead. The Supreme

Court of India, in Bhagwandas Goverdhandas Kedia v Girdharilal Purshottamdasx

has held that in case of oral communication or by telephone or telex, an acceptance

is communicated when it is actually received by the proposer.

It seems that the justifications for applying the postal rule in the age of post may be

valid to be analogized to a new method of communication, such as the email. Email

cannot be considered as an instantaneous method of communication, since there are

some delays and gaps between sending and receiving messages. Parties do not

communicate instantaneously between one other. In contrast, there is much greater

clarity regarding the application of the general rule to website acceptances. Having

examined the basis of the development of the postal rule and applying the reasoning

above, the logical conclusion would be that contracts based on e-mail acceptances do

benefit from the postal rule application.

SUMMING UP

When postal rule is applied to e-mail technical consideration come to the fore. The

fact remains that e-mail is not instantaneous, the packets may not all arrive there

may be congestion on the networks, some of the servers may malfunction and so on.

E-mail is also fragmented when compared to a telephone call and the sender has no

way of knowing whether the receiver will actually get the message.

In relation to click wrap a different method is involved. The communication between

the web client and the server is instantaneous. If the communication between the

parties is broken for whatever reasons, the other party will be immediately notified.

This is due to the built in self-checking mechanism known as ‘checksum’. Therefore,

when dealing with click wrap contracts, the postal rule is not applicable as compared


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to e-mail contracting because the line of communication in click wrap is continually

verified, which implies that a communication once sent will be instantly received.

APPLICATION OF MAILBOX/POSTAL ACCEPTANCE RULE TO

ELECTRONIC CONTRACTS- LEGISLATIVE DEVELOPMENTS IN US

AND UK

Even though the electronic commerce legislation, in the UK and the US, do not aim

to provide substantial changes to the rules of contract formation, particularly

regarding email contracting, they do provide clarification of the contracting process,

especially in contracting through websites.

A. Position in US

The US laws are active in determining the time and place of dispatch and receipt of

Electronic Commerce has the same approach as the Uniform Electronic Transactions

Act (UETA) as a main source, US legislation relating to this discussion reject the

application of the postal acceptance rule for electronic transactions and adopt the

general rule (receipt rule), for the acceptance to be effective. The reasons for this are

firstly, in the US, the application of the general rule depends on whether the method

of communication is instantaneous or ‚substantially instantaneous as two-way

communication‛. For example, in cases regarding contracting by fax or telephone,

even though the parties are not in physical proximity of one another, the general

rule is applied to these types of communication. Since email cannot be described as

direct and instantaneous communication thus it cannot be within this argument.

Secondly, US laws, especially the UETA, clarifies the moment when a message is

considered as having been received by the recipient and when it could be accessible

in order to be received. The UETA contains a section entitled ‘Time and Place of

Sending and Receipt’, which states that an electronic record is deemed to be sent

when it is properly addressed or directed to another recipient, is in a form capable of


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being read by the other parties' system and when it is out of the control of the sender

but however, it does not establish when the acceptance becomes effective and the

contract is formed.

Additionally, subsection 15(b) of the UETA, states that ‚an electronic record is

deemed received when it enters an information processing system designated by the

recipient for receiving such messages (e.g., home office), and "it is in a form capable

of being processed by that system." This Section closely follows Art 15 of

UNICITRAL Model law.

The Uniform Computer Information Transactions Act (UCITA) 1999, which is

uniform commercial code for software licenses and other computer information

transactions, goes further, with detailed provisions to indicate explicitly the

application of the general rule in contracting by electronic means. Article 215 of the

Act provides for electronic messages to be in effect at the time of receipt, regardless

of whether any individual is aware of that receipt. Receipt is defined as: ‚In the case

of an electronic notice… coming into existence in an information processing system

or at an address in that system in a form capable of being processed by or perceived

from a system of that type by a recipient, if the recipient uses, or otherwise has

designated or holds out, that place or system for receipt of notices of the kind to be

given and the sender does not know that the notice cannot be accessed from that

place‛. xi

In this Act, under the section entitled ‚Offer and Acceptance in General‛, s.203 (4), it

states that ‚if an offer in an electronic message evokes an electronic message

accepting the offer, a contract is formed when an electronic acceptance is received‛.

This means that UCITA considers that the general rule should apply to electronic

transactions, even if the recipient is not aware of its receipt.

B. Position in UK


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At the English legislation level, there is no indication of treatment of conclusion of

contract or timing issues as there is in the UETA or the UCITA. The Regulations of

Electronic Commerce 2002 do not have any article indicating when a message is

considered as having either been sent or received. These Regulations brought the

majority of the provisions of the Directive into force on 21st August 2002. The

Electronic Commerce Directive requires member states to establish a somewhat

more complicated rule that departs from the UETA and the UNCITRAL, Article 11

provides: ‚Member states shall ensure, except when otherwise agreed by parties who

are not consumers, that in cases where the recipient of the service places his order

through technological means, the following principles apply: the service provider has

to acknowledge the receipt and they are deemed to be received when the parties to

whom they are addressed are able to access them.‛

Unlike UETA, the Regulations do however, focus on accessibility and the contracting

process on the website, rather than analyze in depth, the general and vague concept

‚able to access‛. This is because the Regulations aim to provide transparency by

requiring information to be supplied. The best example of this information is the

duty on a service provider to provide certain information about the procedures of

how contracts can be concluded by electronic means. However, in the drafting

process of the Ecommerce Directive regarding formation of electronic contracts,

there was considerable debate as how best to regulate this issue and unify it within

Europe. The first and second draft of the Directive contained a section entitled

‘Moment at which the contract is concluded’. According to the drafting process, the

electronic contract is considered to be formed upon the final confirmation of receipt

from the consumer after he has received the second acknowledgement from the

consumer.

The draft of the E-commerce Directive contained a novel method for timing issues in

formation of electronic contracts; this is the confirmation of receipt of the

acknowledgment. In this section, drafters of the Directive wanted to create


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uniformity and certainty in online contracting throughout Europe. In the final draft,

this section has been changed, under the name ‘Placing of order’ and reduces the

number online contract formation stages to three. Moreover, provisions which

govern the mechanism of forming online contracts (Regulation 11), do not apply for

contracts concluded exclusively by email. For example, Regulation 11 (2) b of the E-

commerce Regulations makes reference to an ‚acknowledgment of receipt of the

order… without undue delay and by electronic means‛. This Regulation does not

apply to email acceptances, but it does apply to website contracting in which the

service provider shall send an acknowledgement of receipt of the order without any

due delay to the consumer and that service is not available in the case of emails.

ELECTRONIC CONTRACT AND INFORMATION TECHNOLOGY ACT ,

2000

RECOGNITION OF E-CONTRACTS

The Indian Contract Act, 1872 governs the manner in which contracts are made and

executed in India. It provides for the essentials of a valid contract, manner of offer

and acceptance, rights and obligations of the parties and remedies in case of breach

of contractual terms.

Anticipating the difficulties likely to arise from this, the Information Technology

Act, 2000 in Section 13 provides that unless otherwise agreed to between the

originator and the addressee, the dispatch of an electronic record occurs when it

enters a computer resource outside the control of the originator. If the addressee has

designated a computer resource for the purpose of receiving electronic records and it

is send to such resource, the receipt occurs at the time when the electronic, record

enters the designated computer resource. If instead the electronic record is sent to a

computer resource of the addressee that is not the designated computer resource,

receipt occurs at the time when the electronic record is retrieved by the addressee. If


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the addressee has not designated a computer resource along with specified timings, if

any, receipt occurs when the electronic record enters the computer resource of the

addressee. The sender of the electronic record is entitled to stipulate that the record

sent shall be binding only on receipt of acknowledgment.

Unless otherwise agreed to between the originator and the addressee, electronic

record is deemed to be dispatched at the place where the originator has his place of

business, and is deemed to be received at the place where the addressee has his place

of business. The position will be same even when the place where the computer

resource is located may be different from the place where the electronic record is

deemed to have been received.

DETERMINATION OF PLACE OF BUSINESS

Sec 13 (5) of IT Act provides for the following provisions to determine the place of

business:

(a) if the originator or the addressee has more than one place of business, the

principal place of business, shall be the place of business;

(b) if the originator or the addressee does not have a place of business, his usual place

of residence shall be deemed to be the place of business;

(c) "usual place of residence", in relation to a body corporate, means the place where

it is registered.

RECENT AMENDMENTS TO PROVIDE VALIDITY TO ELECTRONIC

CONTRACTS

The amendment to the Information Technology Act, 2000 inserted the section 10 (A)

which states that, ‚where in a contract formation, the communication of proposals,

the acceptance of proposals, the revocation of proposals and acceptances, as the case

may be, are expressed in electronic form or by the means of an electronic record, as


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such contract shall not be deemed to be unenforceable solely on the ground that

such electronic form or means was used for that purpose.‛

New Section 10 A specifies that contract formation is possible with offer and

acceptance being in electronic form.

Case Law on Electronic Contract: The issues relating to electronic contract’s place

and time were addressed by the Allahabad High Court in P.R. Transport Agency vs.

Union of India & othersxii.

The defendant, Bharat Coking Coal Ltd (BCC) held an e-auction for coal in different

lots. P.R. Transport Agency’s (PRTA) bid was accepted for 4000 metric tons of coal

from Dobari Colliery. The acceptance letter was issued on 19th July 2005 by e-mail to

PRTA’s e-mail address. Acting upon this acceptance, PRTA deposited the full amount

of Rs. 81.12 lakh through a cheque in favour of BCC. This cheque was accepted and

encashed by BCC. BCC did not deliver the coal to PRTA. Instead it e-mailed PRTA

saying that the sale as well as the e-auction in favour of PRTA stood cancelled "due to

some technical and unavoidable reasons".

The only reason for this cancellation was that there was some other person whose bid

for the same coal was slightly higher than that of PRTA. Due to some flaw in the

computer or its programme or feeding of data the higher bid had not been

considered earlier. This communication was challenged by PRTA in the High Court

of Allahabad. Bharat Coking Coal Ltd. objected to the ‚territorial jurisdiction‛ of the

Allahabad High Court on the grounds that no part of the cause of action had arisen

within U.P.

The court held that contracts made by telephone, telex or fax, are complete when and

where the acceptance is received. However, this principle can apply only where the

transmitting terminal and the receiving terminal are at fixed points. In case of e-

mail, the data (in this case acceptance) can be transmitted from any where by the e-

mail account holder. It goes to the memory of a 'server' which may be located


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anywhere and can be retrieved by the addressee account holder from anywhere in

the world. Therefore, there is no fixed point either of transmission or of receipt.

Section 13(3) of the Information Technology Act has covered this difficulty of ‚no

fixed point either of transmission or of receipt‛. According to this section ‚...an

electronic record is deemed to be received at the place where the addressee has his

place of business."The acceptance of the tender will be deemed to be received by

PRTA at the places where it has place of business. In this case, the place of business is

located in U.P. and hence Allahabad High Court was held to have jurisdiction.

CAUSE OF ACTION TO BE DETERMINED ACCORDING TO CODE OF

CIVIL PROCEDURE, 1908

Cause of action means every fact which, if denied, will be necessary for the plaintiff

to prove in order to support his right to the judgment of the court. It does not

comprise every piece of evidence which is necessary to be proved to entitle the

plaintiff to a decree. Everything which if not proved would give a defendant a right to

an immediate judgment must be part of the cause of action. It is, in other words, a

bundle of essential facts which it is necessary for the plaintiff to prove before he can

succeed in the suit.

Section 20 of the C.P.C provides that

‚…suits to be instituted where defendants reside or cause of action arises. Subject to

the limitations aforesaid, every suit shall be instituted in Court within the local limits

of whose jurisdiction.

(a) the defendant, or each of the defendants where there are more than one, at the

time of the commencement of the suit, actually and voluntarily resides, or carries on

business, or personally works for gain; or

(b) any of the defendants, where there are more than one, at the time of the

commencement of the suit actually and voluntarily resides, or carries on business, or


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personally works for gain, provided that in such case either the leave of the Court is

given, or the defendants who do not reside, or carry on business, or personally work

for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.‛

A corporation shall be deemed to carry on business at its sole or principal office in

India or, in respect of any cause of action arising at any place where it has also a

subordinate office, at such place.

Illustrations

(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in

Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway

Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of

the goods either in Calcutta, where the cause of action has arisen or in Delhi, where B

carries on business.

(b) A resides at Simla, B at Calcutta and C at Delhi A, B and C being together at

Benaras, B and C make a joint promissory note payable on demand, and deliver it to

A. A may sue B and C at Benaras, where the cause of action arose. He may also sue

them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these

cases, if the non-resident defendant objects, the suit cannot proceed without the leave

of the Court.

The making of a contract is part of the cause of action and a suit on contract can

always be filed at the place where it was made. Ordinarily, acceptance of an offer and

its imitation result in a contract and hence a suit can be filed in a court within whose

jurisdiction the acceptance was communicated. The performance of a contract is a

part of cause of action and a suit in respect of the breach can always be filed at the

place where the contract should have been performed or its performance completed.


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As regards jurisdiction, the normal rule as described above in C.P.C, 1908 will apply.

For reasons discussed above in connection with communication by emails etc, the

postal rule must be applied to the question of formulation, time and place of

contracts and not the rule applied to instantaneous modes of communications.

i According to S.2 (1) (za) the Information Technology Act, 2000, “originator” means a person who sends,

generate, stores or transmits any electronic message or causes any electronic message to be sent, generated,

stored or transmitted to any other person but does not include an intermediary. ii According to S.2 (1) (b) of the Information Technology Act, 2000 "addressee" means a person who is

intended by the originator to receive the electronic record but does not include any intermediary. iii [(2005)SGCA 2] iv ([1818] 1 B &Ald,681) v Henthorn v Fraser [1892] 2 Ch 27 at 33) vi (See, House hold Fire and Carriage Accident Ins.Co.V. Grant (1879) LR Ex D 216 at 221; see also Re

Imperial Land Co of Marseilles (1872) LR 7 Ch App 587 at 594) vii Marwan Al Ibrahim, Ala’eldin Ababneh & Hisham Tahat, Journal of International Commercial Law and

Technology , Vol.2,Issue 1(2007) viii UNDROIT Principles, comment below Article 2.6 ix [1955] 2 QB 327 x AIR 1966 SC 543 xi (See UCITA Art. 102(A) (52)) xii AIR2006All23, 2006(1)AWC504


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PUBLIC INTEREST LITIGATION (PIL):

EFICACY AND DANGERS

CHINTAMANI ROUT

INTRODUCTION

Public Interest Litigation, Advocacy for public interest and free legal aid, all are for the

protection of poor, illiterate and weaker sections of the society. The Constitution of India

emphasises on the equal justice to all persons. The Public Interest Litigation in India is

comparatively a recent innovation of the judiciary, initiated primarily to provide access to

justice and equal justice to the disadvantaged sections of the society who are not possessed

of adequate means or sufficient awareness to enforce their fundamental rights guaranteed

under the constitution. Till 1960 and seventies, the concept of litigation in India was still in

rudimentary form and was seen as a private pursuit for the vindication of private vested

interests. Litigation in those days consisted mainly of some action initiated and continued by

certain individuals, usually, addressing their own grievances or problems. Thus, the

initiation and continuance of litigation was the prerogative of the injured person or the

aggrieved party. Even this was greatly limited by the resources available with those

individuals. There were very little organised efforts or attempts to take up wider issues that

affected classes of consumers or the general public at large. This form of the judicial

process also relaxed the rule of locus standi to enable a social activist, individual or group of

persons to bring to the Supreme Court any issue of public interest wherein violation of any

fundamental right is alleged, for its protection by resort to constitutional remedy under

article 32 of the constitution. This is the underlying principle in Article 39A of the

constitution. The procedure for PIL is extension of the principle on Order 1 Rule 8 of Civil

Procedure Code, 1908 for representative action.


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MEANING AND OBJECT:

Public Interest Litigation popularly known as PIL and can be broadly defined as litigation in

the interest of that nebulous entity: the public in general. Prior to 1980s’ only the aggrieved

party could personally knock the doors of justice as a proxy for the victim or the aggrieved

party. In other words, only the affected parties had the locus standi (standing required in

law) to file a case and continue the litigation and the non affected persons had no locus

standi to do so. And as a result, there was hardly any link between the rights guaranteed by

the Constitution of Indian Union and the laws made by the legislature on the one hand and

the vast majority of illiterate citizens on the other.

However, all these scenario gradually changed when the post emergency Supreme Court

tackled the problem of access to justice P N Bhagwati and Justice V R Krishna Iyer were

instrumental of this juristic revolution of eighties to convert the apex court of India in to a

Supreme Court for all Indians. And as a result any citizen of India or any consumer groups

or social action groups can approach the apex court of the country seeking legal remedies

in all cases where the interest of general public or a section of public are at stake. Further,

public Interest cases could be filed without investment of heavy court fee as required in

private civil litigation. PIL may be taken to mean a legal action initiated in a court of law for

the enforcement of the public interest or general interest in which the public or a class of

the community has pecuniary interest or have some interest because it will affect their legal

right or liabilities. In Janata Dal v H.S. Choudhury, AIR 1993, Public Interest Litigation has

been defined as a legal action initiated in a court of law for the enforcement of public

interest or general interest in which public or a class of the community have pecuniary

interest or some interest by which their legal rights or liabilities are affected.

In Sheela Barse v Union of India, AIR 1988 SC 2211, The Supreme Court has cleared that in

public interest litigation, unlike traditional dispute resolution mechanism; there is no

discrimination or ad-judication of individual rights. The proceedings in a public Interest

Litigation are intended to vindicate and effectuate the public interest by prevention of

violation of the rights, constitutional or statutory or sizeable segments of the society while


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owing to poverty, ignorance, social and economic disadvantages cannot themselves assert

and quite often not even aware of those rights. The technique of Public Interest Litigation

serves to provide an effective remedy to enforce these groups rights and interests.

PIL- A BOON:

In public Interest Litigation (PIL) vigilant citizens of the country can find an expensive legal

remedy because there is only a normal fixed court fee involved in it. Further the litigations

can focus attention on and achieve results pertaining to larger public issues, especially in

the fields of human rights, consumer welfare and environment. Ordinarily, the person

whose fundamental or other right has been violated may file petition under Article 32 or

226, whichever is applicable to move the court or enforcement thereof. The Public Interest

Litigation is exception to the general rule. The Court entertains the public interest litigation

at the instance of public spirited citizens acting confide for the enforcement of fundamental

right of a person in custody or of a class or group of persons who by reason of poverty or

disability or socially or economically disadvantaged position find it difficult to approach the

court for redress. Any member of the public acting bonafide can move the court for relief

under article 32 and 226, so that the fundamental right may become meaningful not only

for the rich and the well-to-do who have the means to approach the court but also for the

large masses of people who are living a life of want and destitution and who are by reason of

lack of awareness, assertiveness and resources unable to seek judicial redress..

In Bandhua Mukti Morcha v Union of India, AIR 1984 SC 802, an organisation dedicated to

the cause of release of bonded labourers gave a letter to the Supreme Court and thereby

informed it about the existence of the bonded labourers in Faridabad District of State of

Haryana for the issue of writ for the release of bonded labourers and for the proper

implementation of the various provisions of the constitution and statutes with a view to end

suffering and helplessness of such labourers. The court treated the letter as writ petition and

entertained it and appointed a commission to make inquiries and report to the court about

the existence of bonded labourers in the said area. The Court expressed view that Public

Interest Litigation should not be taken to be in the nature of adversary litigation. It is a


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challenge and opportunity to the government and its officers to make basic human rights

meaningful to the deprived and vulnerable sections of the community and to assure them

social and economic justice which is the rigid tune of the Constitution. In case of S.P.Gupta

v Union of India, AIR 1982 SC 149, a letter given by the public spirited individuals or social

action group is treated as writ petition by the Court and Court readily responded to it. Public

Interest Litigation has been evolved with a view to bring justice within the easy reach of the

poor and the disadvantaged section of the community.

ABUSE OF THE PIL

The Public Interest Litigation has been criticised much. There is a danger of misuse. The

development of PIL has also uncovered its pitfalls and drawbacks. As a result, the Apex

Court itself has been compelled to lay down certain guidelines to govern the management

and disposal of public interest litigation and the abuse of PIL is also increasing along with

its extended and multifaceted use. In some cases the affected parties addressed letters

directly in the name of judges of the Supreme Court and they used to convert the letters in

to the writ petitions. This practice has been criticised on the ground that there would be a

danger of litigations choosing a judge and in turn judges choosing their litigants. To avoid

this defect now the practice developed by the court is that the judges passes the letter to the

registrar for being dealt with according to the normal practice of the court. The suo-motu

action by judges based upon the news papers has been criticised on the ground that thereby

the judge assumes the role of advocate as well and thus, acting against the judicial precept,

nobody should be a judge in his own case.

It is also criticised on the ground that it can be misused for private motive or political ends.

To avoid this defect the court has expressed the view that the persons who moves the Court

for judicial redress must be acting confide with a view to vindicating the causes of justice

and if he is acting for personal gain or private profit or out of political motivation or other

oblique consideration, the Court should not allow itself to be activated at the instance of

such person and must reject it. To avoid the danger of persons dressing up their personal

grievance in public interest garb, the Court has adopted the view that it is not meant for


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correcting individual wrong or injury. The view of the Court has been that as far as possible

it should not entertain cases of individual wrong or injury at the instance of a third party.

Public Interest Litigation has also been criticised on the ground that it would result in the

tremendous increase in the litigation and it would develop uncertainty as to the admission

of the petition for hearing. It is said that there is no guideline as to the cases which should

be admitted and the cases which should not be admitted. Due to this the Public Interest

Litigation has become unpredictable. To avoid this defect the Supreme Court has framed

certain guidelines for entertaining letters/petitions as public interest litigation.

The petition involving individual or personal matter shall not be entertained as public

Interest Litigation matter except as indicated hereinafter. Ordinarily the letter or petition

falling under the following categories should be entertained as Public Interest Litigation, (a)

neglected children, (b) bonded labour matters, (c) non-payment of minimum wages to

workers and exploitation of casual workers and also complaints relating to the violation of

labour laws, (d) petitions from prisons, complaining of harassment or for premature release,

death in prison, transfer, release on personal bond, speedy trial, (e) petitions against

atrocities on women, bride burning, rape murder etc. , (f) petitions against police for

refusing to register a case and also for harassment or torture of villagers by co-villagers or

by police from persons belonging to the Scheduled Castes and Scheduled Tribes and

economically backward classes, (h) petitions from riot victims, (i) petitions from family

pensions, (j) petitions pertaining to the environment pollution, disturbance of ecological

balance, maintenance of forest and wild life, maintenance of heritage and culture and other

matters of public importance; petitions for early hearing of cases pending in Courts,

petitions relating to service matters, pension and gratuity, petitions pertaining to the land

lord-tenant matters and petitions relating to the admission to the medical college and other

Educational Institutions will not be entertained as Public Interest Litigation.

These guidelines will, no doubt, introduce certainly in this respect and most of the defects of

the PIL will be removed. In the land mark judgment of Raunaq International Limited v IVR

Construction Ltd, Justice Sujata V manohar rightly enunciated that, when a stay order is


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obtained at the instance of a private party or even at the instance of a body litigating in

public interest, any interim order which stops the project from proceeding further must

provide for the reimbursement of costs to the public in case ultimately the litigation started

by such an individual or body fails. In other words the public must be compensated both for

the delay in the implementation of the project and the cost escalation resulting from such

delay.

The Supreme Court on 7th July, 2012 dismissed a public interest litigation (PIL) seeking

direction to the Central Government to conduct an inquiry against Presidential Candidate

Pranab Mukharjee for canvassing votes before resigning as the Union Finance Minister. The

Apex Court, a bench of Justice Aftab Alam and Justice H L Gokhale dismissing the PIL by

Advocate Manohar Lal Sharma, said this Court was not a theatre for this farcical play. The

Court imposed a cost of Rs.50, 000/ on petitioner which it subsequently withdraw with a

warning that any such repeat of farcical PIL in future would invite heavy cost.

CONCLUSION

Public Interest Litigants, all over the country, have not taken very kindly to such court

decisions. They do fear that this will sound the death-knell of the people friendly concept of

PIL. However, bonafide litigants of India have nothing to fear. Only those PIL activists who

prefer to file frivolous complaints will have to pay compensation to the opposite parties. It is

actually a welcome move because no one in the country can deny that even PIL activists

should be responsible and accountable. It is also notable here that even the Consumers

Protection Act, 1986 has been amended to provide compensation to opposite parties in cases

of frivolous complaints made by consumers. In any way, PIL now does require a complete

rethinking and restructuring. Overuse and abuse of Public Interest Litigation can only make

it stale and ineffective. Since it is an extraordinary remedy available at a cheaper cost to all

citizens of the country, it ought to be used by all litigants as a substitute for ordinary ones or

as a means to file frivolous complaints. PIL has translated the rhetoric of fundamental

rights in to living reality for at least some segments of our exploited and downtrodden

humanity. Under trial prisoners languishing in jails for inordinately long periods, inmates


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of asylums and care-homes are living in sub-human conditions, children working in

hazardous occupations and similar disadvantaged sections. The development of Public

Interest Litigation have in-fact receded to the background and irresponsible PIL activist all

over the country have started to play a major but not a constructive role in the arena of

litigation. They try to utilise this extraordinary remedy, available at a cheaper cost, as a

substitute for ordinary ones. The Court, is therefore, require to be vigilant to arrest this

trend, stricter vigilance is required and there is need for framing of rules to regulate the

PILs to prevent its misuse in any form. Judicial activism may be taken to mean the

movements of judiciary to probe in to the inner functioning of the other organs of the

government. The judicial activism is, no doubt, the result of inactiveness on the part of the

executive and legislature. It is the function of the legislature to make law and of the

executive to implement the law but both the organs have failed to discharge their functions

satisfactorily. IN such circumstances, it is not the power but duty of the Court to uphold the

Constitution and compel the other organs of the government to discharge their functions

properly. The Supreme Court being the guardian of the Constitution cannot remain silent

spectator. It can direct the legislature and executive to discharge their functions assigned to

them by the Constitution. Hence any change to improve it further should be encouraged

and welcomed.

REFERENCES:

1. Joshi, K.C, The Constitutional law of India, Central law publication, First edition 2011.

2. Johari, J.C., Indian Government & politics Fourth edition 1979, Vishal publication Delhi- Jallandhar.

3. Jain, M.P, Indian constitutional law, Wadhwa, Nagpur 2005.

4. Pande, G.S Constitutional law of India, Eleventh edition, 2009 university Book House, Jaipur.

5. Pandey ,J.N., Constitutional law of India C.L.A Allahabad,2006

6. Pylee, M.V., An introduction to the Constitution of India, New Delhi,1998

7. P. Bhasker Mohan, Public Interest Litigation, Published in AIR, 1993 Journal Section, p.17

8. RAI Kailash, Public Interest Lawyering, Legal Aid and Para-Legal Services, Central Law Publication,2000

9. Rai Kailash , The Constitutional law of India ,C.L.A Allahabad , seventh edition, 2008.

10. Shukla, V.N., Constitutional law of India E.V.C, Lucknow , 2004

11. BAkshi, P.M. The Constitution of India, Universal Publication, Tenth edition 2010


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REVISITING THE CONCEPT OF PAROLE IN INDIA

MANISHA CHAKRABORTY

DIPA DUBE

INTRODUCTION

Parole is an integral part of the correctional process. It is a kind of consideration granted to

the prisoners to help them to come back into the mainstream of life. It is nothing but an

instrument of social rehabilitation of the prisoner. In recent times, however, the concept has

seen a wide shift with parole been utilized by the rich and influential class to escape the

prison sentence. Thus, we have the infamous examples of Manu Sharma i, Bibi Jagir Kauriior

Biti Mohantyiiiwho are enjoying the intermittent bliss of free life, even after committing

heinous offences and conviction. In contrast, stands the lakhs of other prisoners, whose pleas

of parole fall in deaf ears, and being poor and uninfluential, they do not have means to

utilize the process or are unjustifiably refused the benefit on flimsy grounds. The present

article is an attempt to revisit the concept of parole, its underlying object, means and

processes in the legal system and finally, the issues which are of immediate concern in

recent times.

CONCEPT AND PHILOSOPHY BEHIND PAROLE

The word ‘Parole’ comes from the French word ‚je donne ma parole‛ meaning ‘I give my

word’, while the dictionary definition is ‘word of honour’iv. The term ‘parole’ was first coined

in a correctional context in 1847 by Samvel G. Howe, a Boston penal reformer. Later, Parole

was introduced by Brockway Zebulon in the year 1876 as a way to reduce jail overcrowding

and at the same time as a way to rehabilitate prisoners by encouraging them to win their

way out of prison through good behavior. Parole is rewards granted to prisoners for good

behavior, they entail a reduction in the number of years and months one serves in prisonv.


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Parole had its root in the Positivist School. The Classical School of thought opined that

people are free to choose their own conduct. While committing any crime, an offender

always calculates his gain, his pleasure, at the cost of other’s pain. So he must be punished.

But the Positivist school argued that it is the circumstance which forces anybody to commit

crime. So he must be rehabilitated. From there the thought of parole arose. It provides a

second chance to the prisoner to rehabilitate himself. The offender might have committed

an offence, but it is not desirable that he always be labeled and must not be given any

chance to rehabilitate himself. Its objectives are twofold: the rehabilitation of the offender

and the protection of society. It is a means of helping the inmate to become a law-abiding

citizen, while at the same time ensuring that he does not misbehave or return to crimevi.

Parole ideally includes treatment in the form of supervision, guidance and assistance. It has

been rightly held that all released prisoners can benefit from the guidance of parole

officers, but the benefit that society itself would derive if all prisoners were kept under close

surveillance during the period of adjustment immediately following incarceration, is also

considerablevii.A prisoner who has spent a decade inside has lost touch with the everyday

world of transport, shopping and renting, but has gained a set of different everyday living

skills relevant to prison life that needs to be unlearnedviii.

Parole gives a chance of reformation to the prisoner. It can have a positive impact towards

changing the prisoner’s attitude to what they have done and make them come to accept that

their behavior was wrongix.

THEORETICAL FOUNDATIONS OF PAROLE

There are a number of theories which state as to how and why parole as a means of

reformation has come into being and provide the rationale in introducing the same into the

criminal justice systemx.

Grace Theory: The theory draws its vitality from Justice Cardozo’s famous dictum in Escoe v

Zerbst that ‚probation or suspension of sentence comes as an act of grace‛. Under the grace

theory, both the establishment of a parole system and the release of an individual prisoner


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are gratuitous acts by a merciful executivexi. Parole is analogized to a pardon, the grant of

which was ‚an act of grace‛. Using the grace theory, the courts have been able to dismiss the

possibility of prisoners’ rights to be paroled and to minimize the legal protections accorded

a parolee’s limited freedom. ‚When the board grants a parole, it does so as a matter of grace

and not as a duty‛xii. According to the theory, since parole is a gift, it may be conditioned as

the grantor pleases. Thus, in permitting revocation of the gift, whatever the grounds of

revocation, the courts can maintain a defensible position.

Contract Theory: When the parolee leaves the prison, he often signs a form setting forth the

conditions of his release. This formality has given rise to the contract theory. The parolee

accepts the conditions of his parole just as a party to a business contract agrees to be legally

bound by its terms. Because he has accepted the parole terms, whatever rights they cut off,

the parolee is stopped from complaining about those terms. As all of the meanings derive

from the French parole meaning ‘word’, the term came to be associated with the release of

prisoners based on their word of honor to abide by certain restrictions. Consistent with the

contract concept, theoretically, the parolee may reject the proffered terms. The rejection

option finds its origin in United States v. Wilsonxiii. The Court noted that acceptance was a

requisite of an effective pardonxiv.

Custody Theory: Parole statutes specifically state that parolees remain in the legal custody

of the warden, parole board, or other agent of the executive. From this, courts have derived

the custody theory. Parole ‚is in legal effect imprisonment‛, and the parolee is

‚constructively a prisoner…fettered by the conditions and restrictions of his parole‛. The

parolee is in ‚substantially the same position as a ‘trusty’….‛.xv A violation of the conditions

of his release relegates him to the status of an escaped prisoner. As are the other theories,

the custody theory is often used to insulate parole matters from judicial examination and

review on both non constitutional and constitutional grounds. The parolee is limited to the

status of an inmate, and parole is the administrative exercise of the prison discipline

authority, subject to the wide discretion granted prison officials when dealing with persons

committed to their custody.


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Exhausted Rights: The exhausted rights theory is a concomitant of the custody theory. Its

origins lie in the view that parole is a part of the prison system, and not a part of the

sentencing process. After the accused is convicted by a trial in which all his rights are

protected, ‚constitutional guarantees … do not extend to a later enforcement of punishment

already validly imposed.‛ In short, the theory posits that the accused is entitled to a fixed

quantum of due process protection, and that this is satisfied by his original trial and

sentence. The prisoner’s due process rights are then exhausted until the end of his

maximum sentence. This theory is clearly addressed to the ‚criminal case‛ and ‚criminal

prosecutions‛ applications of the fifth and sixth amendments, and seeks to insulate the

parole process from applications of the amendments by denying that post-conviction

disposition is within their scopexvi.

Parens Patriae: Closely tied to custody is the parens patriae theory. Based on the

rehabilitation model of correction, parens patriae limits the rights of prisoners and parolees

on the basis of a perceived need for great discretion and flexibility in rehabilitating the

parolee. It assumes that ‚the Board of Parole as an identity of interest with the parolee … to

foster his rehabilitation…‛xvii because one need not be protected from another who has an

identity of interest, the theory serves to insulate the parolee from judicial concern. This

rationale and the consequences of this theory are comparable to those long applied in the

juvenile law area, but rejected not many years ago in In re Gault. xviii

PAROLE IN INDIA

In India, the grant of Parole is largely governed by the rules made under the Prison Act,

1894 and Prisoner Act, 1900. Each of the States has its own parole rules, which have minor

variations with each other.xix There are two types of parole- custody and regular. The custody

parole is granted in emergency circumstances like death in the family, serious illness or

marriage in the family. It is limited to a time span of six hoursxx during which the prisoner

is escorted to the place of visit and return therefrom. The grant of parole is subject to


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verification of the circumstances from the concerned police station and is granted by the

Superintendent of Jailxxi.

Regular Parole is allowed for a maximum period of one month, except in special

circumstances, to convicts who have served at least one year in prison. It is granted on

certain grounds such as:

Serious Illness of a family member

Accident or Death of a family member

Marriage of a member of the family

Delivery of Child by wife of the convict

Maintain family or social ties

Serious damage to life or property of the family of convict by natural calamities

Pursue filing of a Special Leave Petition.

Certain categories of convicts are not eligible for being released on parole like prisoners

involved in offences against the State, or threats to national security, non-citizens of India

etc. People convicted of murder and rape of children or multiple murders etc. are also

exempted except at the discretion of the granting authorityxxii.

As per procedure, after an inmate seeks parole, jail authority (Superintendent) asks for a

report from the police station that had made the arrest. The report, with all other papers like

medical report (in case of illness being reason for parole), recommendation of the

Superintendent are then sent to the Deputy Secretary, Home (General), State Government

which decides on the applicationxxiii. In some States, the application along with the police

report and recommendation is sent to the Inspector General of Prison, which is then

considered by the District Magistrate. The State Government takes the decision in

consultation with the District Magistrate. A prisoner who overstays parole is deemed to have

committed an offence under Section 224 Indian Penal Code, 1860 and may be prosecuted with Government

sanction and forfeit all remissions earned.

JUDICIAL APPROACH TOWARDS GRANT OF PAROLE


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Penological innovation in the shape of parole is claimed to be a success in rehabilitation and

checking recidivismxxiv. That’s the view of the Indian judiciary. In Mohinder Singhxxv, parole

has been defined as ‚a conditional release of a prisoner, generally under supervision of a

parole officer, who has served part of the term for which he was sentenced to prison‛. Parole

relates to executive action taken after the door has been closed on a convict. During parole

period there is no suspension of sentence but the sentence is actually continuing to run

during that period also.‛xxvi

In Babu Singh and Ors. v State of U.P. xxvii, Justice Krishna Iyer remarked that ‚It is not out

of place to mention that if the State takes up a flexible attitude it may be possible to permit

long spells of parole, under controlled conditions, so that fear that the full freedom if bailed

out, might be abused may be eliminated by this experimental measure, punctuated by

reversion to prison. Unremitting insulation in the harsh and hardened company of prisoners

leads to many unmentionable vices that humanizing interludes of parole are part of the

compassionate constitutionalism of our system‛xxviii.

In Babulal Das v The State of West Bengal xxix , the Court opined that persons kept

incarcerated and embittered without trial should be given some chance to reform

themselves by reasonable recourse to the parole power … calculated risks, by release for

short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely

exercised. Again in Inder Singh v The State (Delhi Administration) xxx the Court has

emphasized on the need for liberal use of parole even in the case of heinous crimes.xxxi

In the recent case of C.A. Pious v The State of Kerala and Anr.xxxii, while discussing the scope

of the term ‘life imprisonment’, the apex court held ‚In our view, penal humanitarianism

and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and

other humanizing strategies for inmates so that the dignity and worth of the human person

are not desecrated by making mass jails anthropoid zoos. Human rights awareness must

infuse institutional reform and search for alternatives.‛ xxxiii. It added that ‚Section 433A Cr

PC does not forbid parole or other release within the 14-year span. So to interpret the section

as to intensify inner tension and intermissions of freedom is to do violence to language and

liberty.‛


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CRITICAL ISSUES IN PAROLE

Two significant issues arise in case of Parole in contemporary India- one, the refusal of

grant of parole on insufficient grounds and second, the misuse of parole. A glance at the

statics of Prison Population in the year 2011 reveals that there are about 128592 convicts

lodged in different prisons in India. These persons have been found guilty of different

offences under the Penal Code and special laws. Out of that, 28581 have been temporarily

released in the year 2011, just about 22% of the prison population. Some states have

recorded an appreciable number of released convicts like Punjab, Tamil Nadu, Haryana,

while other States have recorded substantially low numbers in this regard. Though the

release of prisoners is dependent upon several factors, it is important to emphasize that

probably the provision of parole is not being utilized to the full.

Details of Prisoners on Parole in Select States of India (2011)

Sl.

No

State Prison

Population

(Convicts)

Released on

parole

Parole

Absconde

d

1 Punjab 7526 6646 65

2 Maharashtra 7952 1706 333

3 Uttar Pradesh 28051 113 19

4 Rajasthan 6159 1977 39

5 Himachal

Pradesh

942 464 27

Source: Prison Statistics, National Crime records Bureau, 2011.

MISUSE OF PAROLE: A ROUTE OF ESCAPE AND REOFFENDING?

While the notion of parole has been emphasized and re-emphasized by the Judiciary and

penologists alike to reduce the ills of prison life, whether parole really serves a purpose or

provides a means to escape becomes a significant question. The recent case of Manu Sharma

drew the ire of the entire nation towards a casual prison administration, and an even more


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casual State Government, which granted and vociferously supported the grant of Parole to a

convict in the Jessica Murder case.

In Sidharth Vashisht @ Manu Sharma v The State (N.C.T. of Delhi)xxxiv, Manu Sharma

murdered Jessica on 30thApril, 1999 at about 2 a.m. Manu belonged to a rich influential

political family. On 20thDecember, 2008 he was sentenced with life imprisonment and fined

by the Delhi High Court. On 24thSeptember, 2009, he was granted parole for one month.

Later it was extended to one more month. Manu Sharma asked for parole on three grounds:

to attend religious rites for his late grandmother, to tend to his ageing mother and, as the

largest shareholder of Piccadilly Industries, to take care of the family’s business interest. He

returned to Jail on 10thNovember, 2009, only after he was traced to a Delhi pub enjoying his

night life with friends, drinks and dance. Media flashed the same in national newspapers.

Meanwhile, his (ill) mother was found attending programs and functions in different parts

of the capitalxxxv. Investigation further revealed that his grandmother passed away on April,

2008 and he was appealing for parole on that very ground after one year and seven months

of her passing away. Again on November 2011, the High Court granted him five days parole

to attend his brother’s wedding, but on the condition that he should not visit any clubs or

discos. ‚Interestingly, the parole was granted despite Sharma violating his earlier parole.

Justice VK Shali, while issuing notice to the Delhi Police on Sharma’s application, had

mentioned his conduct while he was on parole pointing out that he visited discotheques in

violation of parole conditions. ‘He need not attend all (wedding functions),’Shali had

commented earlier while rejecting his request for parole from 10-20 November. The Delhi

Police, however, did a U-turn on their earlier stand of opposing parole for Sharma. Senior

lawyer Pawan Sharma, appearing for the Delhi Police, did not oppose Sharma’s parole plea

but told the court that they had ‚no objection‛ if he gave an undertaking to the court that he

would not leave Karnal and Ambala. In its earlier affidavit submitted to the court last week,

the Delhi Police had objected to Sharma’s plea pointing out that his past conduct did not

entitle him to parole.‛xxxvi

The day Manu Sharma sauntered out of Delhi’s Tihar jail on parole, he left behind over a

dozen irate, but helpless prisoners. They too had applied for parole, much before him; their


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reasons were as varied as a marriage in the family, the settlement of a property dispute and

the need to tend to sick family members. However, there’s been no word on their

applicationsxxxvii. Reportedly, till September 15, 2009, the Delhi Government had granted

parole to only 11 out of 132 applicantsxxxviii.

Another case is Bibi Jagir’s Kaur. Bibi Jagir was jailed for her role in her daughter’s

kidnapping. The murder charges against her had been dropped. She was sentenced to 5

years imprisonment. She was granted parole just after 4 months of her imprisonment. It was

reported that preferential treatment had been extended to her as she was the former

Cabinet Minister of Punjabxxxix.

The latest case on parole is Bibi Mohanty case. The convict, in the instant case, the son of a

DGP, Orissa, was sentenced for rape of a German national. He was sentenced to seven years

rigorous imprisonment along with fine. In November 2006, he was granted fifteen days

parole to visit his ailing mother. At that moment his father stood as his surety. However,

soon thereafter, he escaped and his father pleaded ignorance about his whereabouts. A

significant period of seven years elapsed, after which on a tip off, the police was able to

arrest him from Kerala in March, 2013xl. The convict had, by then, changed his identity, and

refused to reveal himself as Biti Mohanty. His father, seconded him, refusing to accept that

the person arrested was his son. A court has recently ordered the DNA profiling of the

convict to establish his identity.

An audit finding of Comptroller and Auditor General (CAG) also showed how parole

granted to prisoners had not only been abused but in a majority of the cases jailbirds had

made it a favourite escape route. The auditor called for records from Amritsar central jail

and from four Superintendents of Police and found that more than 8,200 prisoners

convicted for serious crimes under NDPS Act, murder, rioting, armed with deadly weapons

etc., and released on parole between May 2001 and May 2008, did not surrender even after

expiry of their parole periodxli.

Looking at the seriousness of the issue, CAG brought the matter to the notice of the Centre

when it found that late reporting of non-surrender of prisoners by the SPs coupled with

inaction on the part of SPs, SHOs and DMs facilitated the offenders to misuse the facility


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and that it was becoming almost a trend. The police's record of tracking parole jumpers is

also dismal. In Maharashtra, only 310 were re-arrested, in Punjab, 80 and in UP, 14 between

2007 and 2011. "Jumping parole is no big deal. Even those convicted for hard crimes are

easily able to obtain no-objection certificates about their character, and get parole. From

there, it is a short step to not report back to prison," says a senior IPS officexlii.

Parole also provides a dangerous opportunity to a criminal to engage in criminal activities

while on parole. As in Saibanna v State of Karnatakaxliii, the appellant killed his first wife and

was serving his life sentence. He was released for a month on parole during which time he

killed his second wife and child inflicting as many as 21 injuries on the body of the person.

The Supreme Court agreed that the case at hand was a "rarest of rare case" involving pre-

planned brutal murders without provocation and that the only condign punishment was

sentence of death. In yet another case of Krishan v State of Haryanaxlivpunishment of life

imprisonment was awarded where the murder was committed while the accused was

already undergoing life imprisonment and was on parole.

REFUSAL OF PAROLE: EXECUTIVE ARBITRARINESS AND APATHY

While this is the picture on one side, on the other, stands the dismal apathy of the State

Governments to grant parole to prisoners. ‚Release on parole is a wing of the reformative

process and is expected to provide opportunity to the prisoner to transform himself into a

useful citizen. Parole is a grant of partial liberty of lessening of restrictions to a convict

prisoner.‛xlvHowever, in this country, there are no statutory provisions dealing with the

question of grant of parole. The Code of Criminal Procedure, 1973 does not contain any

provision for grant of parole. By administrative instructions, however, rules have been

framed in various States, regulating the grant of parole. Thus, the action for grant of parole

is generally speaking an administrative actionxlvi.

Parole Rules or administrative instructions, framed by the Government are purely

administrative in character and for securing release on parole, a convict has, to approach the

Government concerned or the jail authorities. Unfortunately, however, in most cases, the


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executive acts in a mere mechanical manner, without application of mind and appreciation

of facts and refuses the chance of parole to the convicts. The police reports are also prepared

without due consideration to ground realities and more often, indicate a threat to law and

order or breach of peace, without substantiating the grounds for such apprehension. Thus,

in Asha Ram v State of Rajasthanxlvii, a letter was addressed to the Court by the convict that

he was behind bars for a considerable period and his plea for parole was rejected in view of a

baseless police report. The Court examined the report sent by the Superintendent of Police

and concluded that the same was vague and uncertain. ‚It is well settled that the object for

grant of parole is to make necessary efforts to rehabilitate a convict-prisoner in the main

stream of society. Maintaining of law and order and prevention of breach of peace are the

aspects required to be taken care of by the authorities concerned but on vague and

uncertain suggestions, the petitioner cannot be denied parole when he is otherwise eligible

and entitled therefor.‛ The Court accordingly ordered his release for a period of 20 days

with conditions xlviii . In Kesar Singh Guleria v State of Himachal Pradesh and Ors. xlix ,

referring to the grounds for declining parole the Court proceeded to hold that a mere

disturbance of law and order leading to disorder is not the same as disturbance which

subverts the public order. An apprehended breach of peace or the possibility of the prisoner

committing a crime during the parole period, without anything more, would constitute a

law and order problem and not a problem touching public order. It would thus appear that

"public order" comprehends disorder of lesser gravity than those affecting "security of the

State" and that "law and order" comprehends disorders of lesser gravity than those affecting

"public order". In cases involving problems of law and order, the proper course to be adopted

is not to give an opinion that the request for release be rejected but to advice that the release

be ordered subject to appropriate conditions, such as, that surveillance be kept over the

prisoner during the period of his temporary release and that he asked to report to the

nearest police station at appropriate intervals.

Laying down the criteria for probable refusal of parole, the Delhi High Court specified the

followingl:


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i) A reasonable apprehension, based upon material available with the Government such

as the circumstances in which the offence is alleged to have been committed by him

and the other cases if any in which he is involved, that the petitioner, if released on bail

may not return back to Jail to undergo the remaining portion of the sentence awarded

to him;

ii) A serious apprehension of breach of law and order or commission of another offence

by the petitioner if he comes out on parole;

iii) Past conduct of the petitioner such as jumping the bail or parole granted earlier to

him;

iv) A reasonable possibility of the petitioner trying to intimidate or harm those who

have deposed against him or their relatives.

The Court emphasized that it is neither possible nor desirable to exhaustively lay down

all such grounds as would justify denial of parole in a particular case. Each case has to

be examined by the Government dispassionately and with an open mind, taking into

consideration all relevant facts and circumstancesli. In no case, a mechanical rejection of

request for release on parole, such as for breach of apprehension of peace, is warranted

by law. The competent authority is required to pass reasoned and speaking order,

whenever it is to decline request for temporary release specifying danger to the security

of the State or of public order and the grounds on which such opinion is held.

HUMAN RIGHTS V. SOCIAL SECURITY

The grant of parole is not a matter of right, but a concession granted to the prisoner. The

grant is regulated by rules laid down in each state and is a part of executive discretion. Such

discretion cannot be exercised arbitrarily or capriciously, without due application of mind. It

is important that the power to release a prisoner is exercised objectively keeping in view the

intention of the legislature and the purpose of the same.

The grant of parole should be based on twin considerations- human rights and social

security. It is important to ensure that the convict is not deprived of his rights as a human

being. The imposition of sentence, in itself, impairs the exercise of basic rights granted


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under the Constitution. The liberties and freedoms remain curtailed during the term of

sentence. But that should not take away the fundamental humane considerations of life

such as attending to family members in need or an opportunity of happy reunion with

family and friends. Long years of incarceration without breaks are more likely to

dehumanize the mental frame, while temporary release may soften the criminal proclivities.

The issue of social security is an equal area of concern where the release should not, in any

way, interfere with the safety of the community or victims. It is important to ensure that the

released convict does not use parole as a means to escape the rigors of law or commit

further offences. A fine balance between the twin considerations have to be achieved and

the State, including the Prison authorities, have a significant role to play in this regard.

Parole decision makers should prepare themselves well before making a decision. They

should know about the crime, how the crime affected the victim and what role the offender

played. They should understand the pattern of criminality that preceded the crime and the

contribution that the offender’s social history and life’s choices made to his criminality.

Decision makers should inform themselves of the inmate’s recent behavior in the institution

and the inmate’s needs and responsibilities on returning. The grounds on which parole is

sought have to be satisfactorily established and thereupon, the decision of parole has to be

objectively determined. Additionally, they must satisfy themselves, that the grant of parole

should not send a wrong message to the society. The impact of parole on people should be

carefully understood and appreciated.

The grant of parole to a particular convict should be based on considerations such as:

Nature of Offence and circumstances related thereto;

Time spent in prison;

Conduct of the convict;

Previous antecedents, if any;

Possibility of engaging in illegal activities, committing crimes, during the period;

Possibility of seeking vengeance, causing harassment, in specific categories of

crimes;

Impact of release on society;


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The decision of the State to accept or reject parole must be communicated to the convict at

the earliest, along with the reasons for the same. A reasoned decision or speaking order lies

at the root of fair decision-making process. The State should attempt to make more liberal

use of the provision, with variations made, only is sparing cases of threats to security of State

or public order. Even there, as has been earlier reiterated, an endeavor should be made to

release the prisoner with such conditions as would hold him down and compel him to

adhere to good conduct.

The current trend in India of grant to parole to politically influential people or wealthy

groups is indeed disturbing and speaks volumes of the ludicrous manner in which the State

determines cases before it. Inspite of repeated judicial interventions in this regard, the State

has done little to indicate the changes being made in this regard. The State government,

with its known biases and political leanings, have continued to take decisions favorable to

certain categories of people, while refusing innumerable others who may have justified

grounds for seeking such release. Therefore, it is important to emphasize that the State

must take fair, reasonable and unbiased decision for grant of parole and the same should be

clarified in each case

CONCLUSION

The call for freedom and liberty is the highest call of conscience. The concept of parole is in

line with the call of human mind to break free from the shackles of confinement and

establish oneself in the warmth of societal love and acceptance. However it is more easily

said than done. While the philosophy behind parole has been hailed and the judiciary has

called for a liberal use of parole, the subjective satisfaction of the executive in grant of the

same has posed a major roadblock in recent times. Inconsistent orders based on irrelevant

grounds, callous police reports, misuse of the same to appease people in power and position

has devoid the concept of its underlying purpose and utility. Probably, the fault lies, not in

the underlying nobility with which it has been conceived, but in the manner of its usage.

The State has displayed a lack of sound consideration in matters of determination of parole.

It is important to revisit and relook at the existing system of Parole in India and give it some

serious consideration.


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i Is the Parole System being misused in India? How?, The Economic Times, November 21, 2011

http://qna.economictimes.indiatimes.co,m/Law-Regulations/Criminal-Law/is-the-parole-system-being-misused-in-india-

how-503415.htm (Accessed on 18th Jan, 2012). iiBibiJagirKaur gets four week Parole, The Times of India, Aug.9, 2012 http://articles.timesofindia.indiatimes.com/2012-

08-09/india/33117931_1_kapurthala-jail-s-p-khanna-bibi-jagir-kaur (Accessed on Nov 1, 2012). iii The Double Life of BitiMohanty, Tehelka.com, March 21, 2013 http://www.tehelka.com/the-double-life-of-bitti-

mohanty (Accessed on June, 30, 2013). iv S. C. Raina, Probation: Philosophy, Law and Practice (Regency Publications New Delhi 1996) at p.6. v History of Parole System, http://www.articlesbase.com/history-articles/history-of-the-parole-system-2180457.html

visited on 22nd August, 2012. vi Bruce Vichert and Walter Zahnd, ‘Parole: Low and High Risk Parolees’, Canadian Journal of Corrections, Vol.7, Issue

,11964-1965, pp.39-48 at p.39. viiJaytilakGuha Roy, Prisons and Society: A Study of the Indian Jail System (Gian Publishing House Delhi 1989) p.169. viii

EILEEN BALDRY, KEY PART OF THE SENTENCE BENEFITS EVERYONE BY, THE SUNDAY MORNING HERALD,

OCTOBER 29, 2009WWW.SMH.COM.AU/NATIONAL/KEY-PART-OF-THE-SENTENCE-BENEFITS-EVERYONE-20091028-

HL1K.HTML (ACCESSED ON 13TH JAN, 2012).

ixJ. C. Chaturvedi, Penology and Correctional Administration (Isha Books New Delhi 2006) p.8. xComment, ‘The Parole System’, University of Pennyslyvania Law Review Vol.120, 1971, pp.282-377, at p. 286. xi Daniel S. Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearing, Iowa

Law Review, Vol.93, Issue 2, 2008, pp. 491-557 at p. 493. xiiJohn J. Morrissey v. Lou. V. Brewer, 443 F.2d 942(1971). xiii

United States v. Wilson, 32 U.S. 150 (U.S. 1833). xiv A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It

may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court

to force it on him. Because he has accepted the parole terms, whatever rights they cut off, the parolee is stopped from

complaining about those terms. xvComment, ‘The Parole System’, University of Pennysylvania Law Review Vol.120, 1971, pp.282-377, at p.288. xviId. xviiMenechino v. Oswald, 430 F.2d 403, 407 (2d Cir. 1970). xviii387 U.S. 1 (1967). xix For example, West Bengal Correctional Services Act, 1992; The Prisoner (Bihar Amendment ) Act 1956 and the Bihar

Parole Rues 1973; The Punjab Good Conduct Prisoners (Temporary Release) Act, 1962; The Haryana Good Conduct

Prisoners (Temporary Release) Act, 1988 etc. xx In some States, it extends to five days. xxiParole/Furlough Guidelines, Government of National Capital Territory of Delhi, Home Department, 2010. xxiiibid. xxiii See, Sushant Kulkarni, 57 jumped parole from Yerawada in 10 years, The Indian Express, Oct,25, 2011,

http://www.indianexpress.com/news/57-jumped-parole-from-yerawada-in-10-years/865028 (Accessed on 24th August,

2012). xxivKrishan Lal v. State of Delhi AIR1976SC1139 xxvState of Haryana &Ors. v. Mohinder Singh MANU/SC/0073/2000 xxvi Sunil Fulchand Shah v. Union of India &Ors. MANU/SC/0109/2000; Joginder Singh v. State o Punjab

2001(6)SCALE280 xxvii 1978CriLJ651 xxviiiGudikanti Narasimhulu and Ors. v. Public Prosecutor, High Court of Andhra PradeshAIR1978SC429 xxix AIR1975SC606 xxx (1978) 4 SCC 161 xxxi AIR 1980 SC 2147 xxxii AIR2007SC 3221 xxxiiiibid. xxxiv AIR 2010 SC 2352 xxxvJessica Lall Murder Case: Manu Sharma granted Parole, The Times of India (New Delhi), Nov. 16, 2011

http://articles.timesofindia.indiatimes.com/2011-11-16/india/30405164_1_30-day-parole-manu-sharma-parole-

application (Accessed on Nov.13, 2012).“In September 2009, Sharma was released from jail on a 30-day parole to


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attend to his ailing mother and perform rituals related to the death of his grandmother. During the second extension of

the parole for another 30 days, Sharma was seen partying in a discotheque. His mother, whose illness was one of the

reasons for seeking the parole, was seen at a media briefing promoting a cricket tournament at Piccadilly - the family-

run hotel in Chandigarh.” xxxvi Manu Sharma gets 5 day Parole despite Violations, Tehelka, 16 Nov. 2011

http://www.tehelka.com/story_main50.asp?filename=Ws161111JESSICA_MURDER.asp (Accessed on 20th Nov 2012). xxxvii Parole And Prejudice, Tehelka Magazine, Vol.6, Issue.47, November 28, 2009

http://www.tehelka.com/story_main43.asp?filename=Ne281109parole_and.asp (Accessed on 14th Jan, 2012)

xxxviii Amend Laws to prevent parole misuse, Hardnews, http://www.hardnewsmedia.com/2009/11/3347(Accessed on 19th Jan,2012). xxxix After four months in jail, former Punjab minister JagirKaur given parole, NDTV, August 08, 2012

http://www.ndtv.com/article/india/after-four-months-in-jail-former-punjab-minister-jagir-kaur-given-parole-252765

(Accessed on 20th Nov 2012). xl Explained:All the crucial facts of the Bitti Mohanty case, Firstpost.India, Mar 10, 2013,

http://www.firstpost.com/india/explained-all-the-crucial-facts-of-the-bitti-mohanty-case-654149.html (Accessed on 2nd

August, 2013). xli Pradeep Thakur, 60% convicts don’t return after parole, TNN, November 13, 2009,

http://articles.timesofindia.indiatimes.com/2009-11-13/india/28082072_1_cag-parole-absconding-prisoners (Accessed on

22nd Jan, 2012). xlii Maharashtra tops Parole jumper’s List, The Times of India, June 5, 2012

http://articles.timesofindia.indiatimes.com/2012-06-05/india/32054766_1_parole-rules-parole-jumpers-ips-officer (Accessed on 1st Nov., 2012). xliii JT 2005(5)SC564 xliv1997 CriLJ 3180; See, Mohinder Singh v. State of Punjab 2012 CrLJ 1559. xlvPoonam Lata v. M.L. Wadhawan 1987 Cri LJ 1924. xlviSunil Fulchand Shah v. Union of India &Ors.AIR 2000 SC 1023. xlvii MANU/RH/0221/2012 xlviiiRoduv. State of Rajasthan MANU/RH/0198/ 2012; Gulab v. State of NCT of Delhi MANU/DE/0638/2010 xlix 1985 Cri.L.J 1202 lSomesh Gupta v. State of NCT 2010 (1) Crimes 864. li See, Varun v. State of Haryana MANU/PH/0765/2010.


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DEVELOPING SPACE LAW EDUCATION IN INDIA:

SOME PROPOSALS

MALAY ADHIKARI

INTRODUCTION

As India is a developing country and its space science and technology is not so developed

before the decades of sixties, so unlike other space faring countries, the different disciplines

related with outer space like space law has started its journey very informally and still it is

going on in the absence of national space law. The activities to promote space law education

is going on but not like other space faring countries though India herself is a space faring

country now.

The first part of the paper is focussed about the classification of people and the Indian

institutions or organisations who are interested about space law. The second part is the

proposed alternative models to develop space law education based on the purpose of

different people or community and last there is a general proposed syllabus of space law for

all these models.

WHO ARE THE PEOPLE INTERESTED ON SPACE LAW IN INDIA?

The first question comes to anybody’s mind who are the people interested on space law in

India. The reply may be made on putting another question how space law is related or

important to an astronomer, an engineer, a legal professional, a doctor, a social scientist, a

Government official or diplomat, a defence personnel, a businessman or an entrepreneur

and some non-profit making society or groups related with space activities. Perhaps these

are the people who may think about how space law education is required for satisfying the

need of their respective domain. In a general way, the astronomers in the space observatory

or any other institutions are more interested on astronomical observations and

developments; engineers are interested more on manufacturing spacecraft’s, electronic

circuit designing of a spacecraft and other related things; a legal professional more


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interested on litigation through space activities; doctors more on space medicine; social

scientists interested more on writing and deliberating on space law; defence personnel more

on space security; Government officials more interested to focus on space policy related

issues in its own framework; diplomats more on building international tie-ups with other

countries and safeguarding or enforcing the national interest in international plane;

businessmen or entrepreneurs more on space commerce; the societies or other groups

related with space activities more interested about creating social consciousness focussing

on their society or group interest. The list is not inclusive. There may be possibility of other

sets of people.

The interest of the above category of people is very vital to develop any model on space law

education in India. Similarly the institutions related with all these categories like Space

Physics Laboratory (Thiruvananthapuram) under Vikram Sarabhai Space Centre1, The Inter-

University Centre for Astronomy & Astrophysics2 (Pune), Institute of Astrophysics3

(Bangalore), Raman Research Institute4 (Bangalore), Aerospace engineering departments

(IITs/Engineering colleges or Universities), Indian Institute of Space Science & Technology5

(Thiruvananthapuram), Indian Institute of Remote Sensing6 (Dehradun), Institute of

Aerospace Medicine7 (Bangalore), some law departments of universities including national

law schools all over India, Institute of Defence Studies & Analysis8 (New Delhi), Observer

Research Foundation9 (New Delhi), Centre for Land & Warfare Studies10 (New Delhi),

Gateway House11 (Mumbai), National Institute of Advanced Studies12 (Bangalore), Defence

Research & Development Organisation13 (laboratories like Defence Bioengineering &

Electromedical Laboratory etc), Indian Astrobiology Research Centre14 (Mumbai), Indian

Air Force15, Indian Space Research Organisation16 (Bangalore), Ministry of External Affairs17

(Legal & Treaties Division), Indian Council of World Affairs18 (New Delhi), Confederation of

Indian Industries19 (CII), Society of Indian Aerospace Technologies & Industries20

(Bangalore), Association of Geospatial Industry21 (New Delhi), Indian Society of

International Law22 (New Delhi), Indian Society of Remote Sensing23 (Dehradun), Indian

Society of Geomatics24, Indian National Cartographic Association25 (Hyderabad), Indian

Society of Aerospace Medicine26 (New Delhi), National Space Society (India Chapter)27,


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Telemedicine Society of India28 (Lucknow), The Indian Planetary Society29 (Mumbai), Moon

Society India30 (Mumbai), the Bangalore Astronomical Society31, Regional Sky Watchers’

Association like Kolkata32, Kalpana Chawla Centre for Space & Nanosciences33 (Kolkata),

Astronomical Society of India34 (Bangalore) and its sister concern Astronautical Society of

India Student Chapter.

The list may be going on adding one institution after another. But definitely all these

institutions have not much interested or requirement of space law education. Some requires

more, some less. And it is obvious not only for India but also for similar type of institutions

in other countries. It depends on their activity as well as priority of interest. But most

interesting is that none can assure that space law is not in any way related with their

discipline. People are in general more conscious and aware (may be interested) of space

science and technology than space law. There are people amongst space scientists etc in

India, who are still not so familiar about the fact that there exists law related with outer

space. But some thoughts are enlightening in their minds by default for law even though

they have no such legal background. Generally when people faces trouble after violating

any regulation being knowingly or unknowingly, then law comes to their mind because the

person has to safeguard himself from the offence. This is the general Indian tradition.

There is one interesting point to observe from the above list is that Bar Council of India35 or

its members in general are not interested about space law education till now. The same

follow up is noted amongst the Indian judiciary from top to bottom. The primary reason is

that there are no such litigations till now by which a major number of legal practitioners

will be interested. The same is true for judiciary. But there are many opportunities in the

background of litigations from licensing of telecommunication spectrums by Government

of India, ANTRIX-Devas deal etc.

In this broad background scenario, there are some proposed models to develop space law

education in India.

PROPOSED MODELS OF SPACE LAW EDUCATION IN INDIA:

(1) Model for people related with Astronomy


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International lawyers have little or no knowledge of or interest in astronomy,

and astronomers, astro-physicists are likely that.7 The statement of noted jurist Prof.

Jenks is very meaningful especially in Indian context. The history of Indian

astronomy shows that Indian astronomers contributed a lot and it was very

pioneering work to other astronomers outside India. The following paragraph

highlights it.

Earlier in the fifth century, Aryabhatta through classic work, the Aryabhatta,

heralded the new mathematics based astronomy. In 7th century AD Brahmagupta

also wrote a voluminous work called the Brahmasphuta Siddhanta, which is one of

the important texts on Indian mathematics and astronomy. The Indian astronomers

dealt with time-reckoning, rising, setting an conjunction of planets, eclipses and

parallax, mean and true motion of planets, determination of direction, space and

time etc. They have developed several astronomical instruments and made

observations. Nilkantha (16th century), astronomer from Kerala, conceived that the

inner planets (Venus and Mercury) and the outer planets (Mars, Jupiter and Saturn)

would revolve round the Sun and the latter with them would in turn evolve round

the earth. Such a model appeared nearly a century later in Europe, where Tycho

Brahe through his observations at Copenhagen formulated it.8

The background of Indian astronomy is discussed in this context because the

astronomers are the key people who have started human expedition to outer space.

The example is if there is no discovery of Kepler’s laws of planetary motion9, the

people from earth cannot launch a satellite like Sputnik to outer space. Excellent

researches are going on in different Indian institutes mentioned above. But the

discussion of these researches is out of context of this paper. All these researches will

definitely expand the scope of future space law. The example may be cited like the

discovery of a planet full of precious metals like diamonds10 or planning to mining of

asteriods11 etc where the astronomers first located the particular celestial body and

the contents of these planets or asteroids. Naturally the people will chase for

acquiring these and there will definitely be a new type of space race which will direct


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space law in new direction.12 There may be new conventions, agreements etc to

regulate the regime.

Hence the astronomers cannot fully avoid their role for future development of space

law. Depending on their information, a state or a private enterprise will invest their

huge fund for the reason as cited above. It may be said that the existing regime of

space law as established by United Nations is not attracted by astronomers at present

but there are lots of opportunities in future to develop space law by astronomers.

At this outset, what will be the model for Indian astronomers to study and research in

space law? What type of space law education is required for them? What can they

contribute to the existing regime of space law? The purpose of this paper is not to

prepare a model only but to raise some questions to the astronomy community of

India to consider space law as a serious concern for near future. And it is definite that

some concrete innovative idea will come out just like their astronomical discoveries.

These ideas should be get together to prepare a model for space law education as

suitable for them.

(2) Model for People Related with Engineering:

The role of engineers to develop any space mission or project is in the first place. If

any ISRO project is considered, there are engineers from different disciplines like

aerospace engineering consisting of aerodynamics and flight mechanics, thermal and

propulsion, design and structure, materials and manufacturing; avionics engineering

consisting of Digital System Design, Digital communication, VLSI

Design Navigation, Guidance and Control, Digital System Design, Computer

Technology and Power Electronics etc. There are disciplines related with general

engineering like mechanical engineering, electrical engineering etc. The engineers

are the people who control a space mission everywhere. Even a person cannot be an

astronaut without any knowledge of engineering and science. Similarly a future

space lawyer is sometime expected to be in outer space. So a legal professional

should be acquainted with some knowledge of engineering. The development of the

space law requires lawyers, engineers and scientists that working together like an


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engine of such development.13 As noted space lawyer Eilene Galloway has

recognized, all major space law problems in both international and municipal space

law are multidisciplinary and require for their solution a knowledge of space science

and technology as well as elements of the physical sciences, the life sciences and

engineering. This principle is valid for the study and teaching of space law.14

An example is provided for the requirement of space law to engineering related

projects. A small case study identifies a lack of a clear law about the experimentation

with sounding rocket in Spain. These problems are caused mainly by the absence of

specific space law, which regulates the operation of sounding rocket as experimental

devices.15 The problem is not different in India. If a person or a group is interested to

pursue such project, there are problems like “purchase of materials, transport of the

rockets, and management of a risk insurance which would cover the damage and

responsibilities of a potential accident, lack of support of the local authorities, socially

confused vision which relates sounding rockets to military activities”16.

Hence a platform should be developed where the persons from engineering

background discuss their practical problem with the people from legal background

and then only it would be possible to prepare a model for space law education for

engineers.

(3) Model for People Related with Medical Sciences:

The doctors, researchers and others who are related with the development of space

medicine are in the different corner of space law. At the one side they are developing

the medical support for human beings in outer space but they are the people who

have key role to develop one dormant side of space law which is space medical

jurisprudence or forensic medicine in outer space. It is obvious that when the

commercial travel of human being will start, then definitely space medical

jurisprudence will play a key role. And a new literature will develop from the

contribution of the above doctors, researchers and others working on space medicine.


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There is Indian Society of Space Medicine which is mainly controlled by the defence

personnel but the time has come to dissipate the knowledge of space medicine to the

interested civilians. It should no longer be a domain controlled by the defence people

only. The role of this society is very important to build a model for space medical

jurisprudence in Indian context. Such model may be useful for making future Indian

regulation for human space flight. Hence it is better for this society as well as others

interested persons in space medicine to think what space law education is needed to

them. A suitable model should be drafted based on their output.

There is another possibility from space nursing society17 which was founded in 1991

in USA and though they have members from different countries but nobody from

India. India also think about this line and there should be some diagnostic code for

nursing also which will support in making the future regulation for Indians injured

in outer space.

(4) Model for People Related with Social Sciences:

The people from social sciences can contribute to the geopolitics in space in general.

It consists of space strategy of India in making a suitable space policy for the country.

They can analyse the politics of outer space affairs inside and outside the country.

Their analysis and suggestion will require for making domestic legislation in space

for India.

But there is specific contribution from archaeologists also. An example of legal

implication of space archaeology is that whether any law is required to preserve the

site on the moon where the Moon Impact Probe was thrown during the Chandrayaan

Mission, or, whether the existing domestic law is sufficient to preserve the particular

site on any celestial body. In future expedition of Mars and other mission, the nexus

between space archaeology and law will be very much required to be studied

otherwise human colony on celestial bodies will face problems.

So the model for space law education should be based on general as well as specific

need of the social scientists.


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(5) Model for Defence Personnel:

The defence people are mainly dealing with space security of India. The Indian Air

Force is already there. But there are people in DRDO laboratories who build up the

long range missile whose technology is same as launching a spacecraft. The recent

AGNI V launching has worried the other countries from the aspect of space security.

The existing domain of space law should be in the background to develop space law

education for them. But what will be the added one? All the domestic law dealing

with national security of India should be included in their model for space law

education.

(6) Model for a Government Official or a Diplomat:

A Government official or a diplomat has no such border aspect for pursuing space

law education because it is the policy of the Government who decides the role of

space law education for them. For an example a top-ranking ISRO official cannot

expect to have a detail study of space law which is not permitted by the concerned

office. It is the Government propaganda by which the officer dealing with space has

to go. The diplomats in Indian Ministry dealing with space are likely that. They have

to follow the guidelines from their superiors or as directed by the Ministry

concerned. Hence the question is what model they will follow for space law

education? It is better to leave the solution to the concerned Ministry for the time

being.

(7) Model for a Businessman or Entrepreneur:

A businessman or entrepreneur is chasing for money and his or her survival exists on

the profit from the business. If the cases of Godrej Aerospace Laboratory or the space

sector of L& T or the first Indian space entrepreneur Dr. Susmita Mohanty, CEO of

Earth2orbit18, are considered, their main focus is space commerce. As stated by Dr.

Mohanty that she would like to see India a global player and capture a significant


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chunk of the 160 billion dollar annual commercial business.19 The model for space

law education is not only the existing space law provisions but also the other Indian

acts to continue their business. Also they will require studying other disciplines

together with the study of space law to make their business credible to the public.

(8) Model for Asrobiologist or Exobiologist:

The astrobiology or exobiology consists of the search for extra-terrestrial life in this

universe. This search for extra-terrestrial intelligence directs space law to think non-

anthropocentric space law and the concept of metalaw, as per famous space lawyer

and rocketry scientist Andrew G. Halley, comes into the picture.20 In the distant

future, lawyers, scientists and sociologists will undertake studies of a substantive

statement of metalaw and as a by-product of these studies our own anthropocentric

law undoubtedly will be improved.21 Hence the model for space law education for

this category is based on non-anthropocentric nature of space law and the literature is

developing through the institutes like the Search for Extra-terrestrial Intelligence

(SETI) etc. There is no codified law in this category till now. So the people working in

this area in India have the sole responsibility to think what space law education is

required and the model should be based on it.

(9) Model for Different Societies and Groups:

The different non-profit making societies or groups mentioned above have different

purposes. They sometimes think for space law for the interest of the people in their

society. Sometime it is the case where the requirement of space law study is strongly

needed but there is lack of consciousness or lack of people who can spread interest

for space law amongst the other members of the society. So the study of space law is

different from different society. There may be numerous space law education models

in this category.

(10) Model for Future Generation Living on Celestial Bodies:

This model will be heard to be a science fiction story. But one day or other human

beings will have permanent colony in celestial bodies. They must require some law


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which will be part of existing space law but other part will be developed from the

customs which they will follow in these celestial colonies. Here the survival of

human beings is the sole criteria and as the environment of each celestial body is

different from each other, the law will be different. Even we require law within a

spacecraft for interstellar flight because it takes a very longer time to travel from one

to another planet. Hence it is very good and wise if some model of space law

education could be developed for our future generation. After all Haley, one of the

pioneers of space law says “Law must precede man into outer space”. So it is the best

time to think what space law is required to live in Moon, Mars and beyond being an

Indian or in a greater context being an earthian.

All these models of space law education above are not all inclusive. There may be

interference between the two or more when it will be actually implemented. But

there are basics which each model should follow and there should be regular review

and upgradation procedure in each model.

GENERAL SYLLABUS:

The following is a proposed format of general syllabus of these models but there

should be many more topics depending on the prerogative of the institutions or a

particular community or a particular society as well as it depends on the

advancement of space science and technology with more consciousness of general

people on space activities.

1. Introduction to Law

1.1 What is law?

1.2 Sources of law

1.3 Different schools of law

1.4 Relationship between law & other disciplines especially science &

technology

2. Introduction to law of outer space

2.1 Brief history of Astronomy


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2.2 Relationship of space law with other disciplines of studies with space

2.3 Sources of space law: General Assembly resolutions, treaties etc

2.4 Space Lawyers of different countries & their contributions

2.5 Role of United Nations and other regional and intergovernmental

organisations

2.6 Role of non-state actors

3. Problems of space law

3.1 Boundary of outer space

3.2 Freedom of access, use and principle of non-appropriation, Common

Heritage of Mankind

3.3 Peaceful uses & Military Uses

3.4 Space Debris

3.5 International space station

3.6 Space transport

4. Commercialisation & Privatisation of space activities

4.1 Private companies in India & abroad

4.2 Space economics: how economy of India/abroad affected

4.3 Legal issues related with commercialisation & privatisation

4.4 Probable domestic regulations related with space activities

5. Remote Sensing

5.1 Definition, technique and uses of remote sensing

5.2 Legal issues with remote sensing data

6. Telecommunications

6.1 Role of ITU & others legal regulations

6.2 Regulation of radio frequencies and orbital slots on the geostationary orbit

6.3 Case study of INTELSAT & INMARSAT

6.4 Privatization of telecommunication services: legal problems in India

7. Other commercial legal issues

7.1 Intellectual property rights


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7.2 Private launching

7.3 Import & Export controls

7.4 UNIDROIT role

7.5 Mining of celestial bodies

7.6 Space tourism

7.7 Human colonisation

8. Dispute Resolution for outer space activities

CONCLUSION:

There are many agendas to be included or may be excluded from space law education in

due course of time as space science and technology is gradually developing. But one

attitude is distinctly lacking in India that a common national platform to deal the different

aspects of space activities including space law like International Astronautical Congress

held annually by the International Astronautical Federation. Here the people from different

disciplines related with outer space would like to participate, interact and share their own

ideas through meaningful conversations with humble approach. It may be a national

symposium like National Space Science Symposium as now conducted by ISRO in each

alternate year. This is the only way to develop a common Indian model of space law

education for different disciplines.

Referencess

1. http://www.isro.org/isrocentres/vssc.aspx (Accessed on 25-05-2013)

2. http://www.iucaa.ernet.in/ (Accessed on 25-05-2013)

3. http://www.iiap.res.in/ (Accessed on 25-05-2013)

4. http://dspace.rri.res.in/ (Accessed on 25-05-2013)

5. http://www.iist.ac.in/ (Accessed on 25-05-2013)

6. http://www.iirs.gov.in/ (Accessed on 25-05-2013)

7. http://www.isam.in/iam.html (Accessed on 26-05-2013)

8. http://www.idsa.in/ (Accessed on 26-05-2013)

9. http://www.observerindia.com/ (Accessed on 26-05-2013)

10. http://www.claws.in/ (Accessed on 26-05-2013)

http://www.isro.org/isrocentres/vssc.aspx

http://www.iucaa.ernet.in/

http://www.iiap.res.in/

http://dspace.rri.res.in/

http://www.iist.ac.in/

http://www.iirs.gov.in/

http://www.isam.in/iam.html

http://www.idsa.in/

http://www.observerindia.com/

http://www.claws.in/


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11. http://www.gatewayhouse.in/tags/mumbai (Accessed on 26-05-2013)

12. http://www.nias.res.in/ (Accessed on 26-05-2013)

13. http://www.drdo.gov.in (Accessed on 26-05-2013)

14. http://www.iarc.res.in/index.html (Accessed on 26-05-2013)

15. http://indianairforce.nic.in/show_page.php?pg_id=94 (Accessed on 26-05-2013)

16. http://www.isro.org/ (Accessed on 26-05-2013)

17. http://meaindia.nic.in/ (Accessed on 26-05-2013)

18. http://www.icwa.in/index.html (Accessed on 26-05-2013)

19. http://www.icwa.in/index.html (Accessed on 26-05-2013)

20. http://www.siati.in/ (Accessed on 26-05-2013)

21. http://www.agiindia.com/ (Accessed on 26-05-2013)

22. http://www.isil-aca.org/ (Accessed on 26-05-2013)

23. http://www.isrsindia.in/ (Accessed on 26-05-2013)

24. http://www.isgindia.org/ (Accessed on 26-05-2013)

25. http://www.incaindia.org/ (Accessed on 26-05-2013)

26. Supra note 7.

27. http://chapters.nss.org/a/lists/International/ChapList_IN.shtml (Accessed on 26-05-2013)

28. http://www.tsi.org.in/ (Accessed on 26-05-2013)

29. http://www.ipsindia.org/ (Accessed on 26-05-2013)

30. http://www.moonsociety.org/india/ (Accessed on 26-05-2013)

31. http://www.bas.org.in/Home/ (Accessed on 26-05-2013)

32. http://www.swakolkata.org/ (Accessed on 26-05-2013)

33. http://kccsns.netfirms.com (Accessed on 26-05-2013)

34. http://www.asindia.org/ (Accessed on 26-05-2013)

35. http://www.barcouncilofindia.org/ (Accessed on 26-05-2013)

36. Jenks, C. Wilfred (1978), The Common Law of Mankind, London: Steven & Sons Limited.

37. Subbarayappa, B. V. (2007), “An Overview” in B. V. Subbarayappa (ed.) Science in India Past & Present,

Mumbai: Popular Prakashan.

38. http://csep10.phys.utk.edu/astr161/lect/history/kepler.html (Accessed on 30-05-2013)

39. http://www.reuters.com/article/2011/08/25/us-planet-diamond-idUSTRE77O69A20110825 (Accessed on

30-05-2013)

40. http://www.bloomberg.com/news/2012-04-24/google-chiefs-back-startup-mining-asteroids-for-

metals.html (Accessed on 30-05-2013)

http://www.gatewayhouse.in/tags/mumbai

http://www.nias.res.in/

http://www.drdo.gov.in/

http://www.iarc.res.in/index.html

http://indianairforce.nic.in/show_page.php?pg_id=94

http://www.isro.org/

http://meaindia.nic.in/

http://www.icwa.in/index.html

http://www.icwa.in/index.html

http://www.siati.in/

http://www.agiindia.com/

http://www.isil-aca.org/

http://www.isrsindia.in/

http://www.isgindia.org/

http://www.incaindia.org/

http://chapters.nss.org/a/lists/International/ChapList_IN.shtml

http://www.tsi.org.in/

http://www.ipsindia.org/

http://www.moonsociety.org/india/

http://www.bas.org.in/Home/

http://www.swakolkata.org/

http://kccsns.netfirms.com/

http://www.asindia.org/

http://www.barcouncilofindia.org/

http://csep10.phys.utk.edu/astr161/lect/history/kepler.html

http://www.reuters.com/article/2011/08/25/us-planet-diamond-idUSTRE77O69A20110825

http://www.bloomberg.com/news/2012-04-24/google-chiefs-back-startup-mining-asteroids-for-metals.html

http://www.bloomberg.com/news/2012-04-24/google-chiefs-back-startup-mining-asteroids-for-metals.html


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“Google Inc. (GOOG) Chief Executive Officer Larry Page and Chairman Eric Schmidt are among the

backers of a venture to mine asteroids for trillions of dollars of precious metals, as Earth’s resources

become strained.

Planetary Resources Inc., based in Seattle, aims to launch a telescopic space surveyor into Earth’s low

orbit in less than two years to identify potential metal- and water-rich asteroids and begin prospecting

within four years, co-founder Eric Anderson, 37, said in a telephone interview.”

41. Ibid.

42. Monzon, Amalio & Russu, Andres (2010), “Space Law Students Participation in Real Engineering

Related Projects and Research” in Corinne M. Contant Jorgenson (ed.) Proceedings of the 51st

Colloquium of Outer Space, Washington: American Institute of Aeronautics & Astronautics.

43. Guyla, Gal (1992), “Study & Teaching of Space Law” in N. Jasentuliyana (ed.) Space Law Development

& Scope, Westport: Prager.

44. Supra n 7.

45. Ibid.

46. http://www.spacenursingsociety.net/ (Accessed on 30-05-2013)

47. http://www.earth2orbit.com/ (Accessed on 30-05-2013)

48. Ibid

49. Haley, Andrew G. (1963), Space Law & Government, New York: Appleton-Century-Crofts.

50. Ibid

http://www.bloomberg.com/quote/GOOG:US

http://topics.bloomberg.com/larry-page/

http://topics.bloomberg.com/eric-schmidt/

http://www.planetaryresources.com/

http://topics.bloomberg.com/seattle/

http://topics.bloomberg.com/eric-anderson/

http://www.spacenursingsociety.net/

http://www.earth2orbit.com/


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A STUDY ON LAW RELATING TO

GROUNDWATER RECHARGE IN INDIA*

P. SAKTHIVEL

S. AMIRTHALINGAM

M. STARKL

INTRODUCTION

Groundwater is the most extracted resource on the earth i. The groundwater depletion and

pollution has initiated political and legal controversies in recent times ii. The past ten years

have witnessed the discussions on various options to overcome the difficulties posed by

groundwater depletion. The ‘artificial recharge methods’ and ‘rainwater harvesting’ are the

ideas usually found in these discussions. This paper addresses the law and policy issues

relating to groundwater recharge, but it has used a term (Managed Aquifer Recharge)

which is not often used in the legal discussions. ‘Managed Aquifer Recharge (MAR)’, is

emerging as a holistic approach to various groundwater recharge philosophies and the

paper explains the rational for choosing this term.

The gap between the policy and law started widening ever since the legislation relating to

environmental protection is made in India. The depletion of groundwater, the state

expenditure relating to drinking water supply, climate change issues iii , groundwater

extraction by electric power, and mechanism to extract water from deep bore wells has

initiated policy and law making initiatives. These initiatives include various groundwater

recharge policies, programmes and laws. The paper surveys and identifies the gaps in law

and policy relating to groundwater recharge as they seem to be not harmonious.


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MANAGED AQUIFER RECHARGE: AN APPROACH FOR FUTURE

Any discussion on groundwater governance, policy and law includes a deliberation on the

groundwater recharge. The terms used to denote groundwater recharge processes includes

artificial and natural recharge, aquifer recharge and rainwater harvesting. This term is

widely used in water polices and official papers iv of the state in recent times. A brief

introduction to MAR will explain the reasons for preferring this term in this paper.

MAR describes intentional storage and treatment of water in aquifers, this term is preferred

over ‘artificial recharge‛ as the later creates an adverse connotation of artificial in a society

where community participation in water resources management is becoming more

prevalent v . MAR includes a management proposal for all intentional and incidental

recharge to groundwater, thereby proposing to regulate all sorts of groundwater recharge

programmes under one umbrella concept. MAR has also been called as enhanced or

augmented recharge, water banking and sustained underground storage. The common

reasons to use MAR includes securing and enhancing water supplies, improving

groundwater quality, preventing salt water from intruding into coastal aquifers, reducing

evaporation of stored water, maintaining environmental flows and groundwatervi.

CONSTITUTIONAL BASICS FOR MAR

From central government to NGO’s, largest polluting corporate to farmers relying on

subsistence agriculturevii, groundwater sustainability is considered as an important aspect in

their work plan. This requires a Constitutional understanding on MAR in India to explain

the rights of all stake holders including policy and law making powers, institutional

structure and jurisdictional conflicts amongst various authorities.

Water, primarily a State subjectviii under the Constitution of India was not considered as a

significant subject to be regulated at the time of making the Constitution. This is reflected

by the fact that ‘groundwater’ was not in the discussions of constituent assembly. Further,

the Constituent assembly discussions relating to the most important subject of inter-state

water disputes were also not very significant. At the time of independence, the water scarcity


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is not felt to this extend and the technology was not developed to transport and store water.

Naturally, groundwater was one of the underutilized resources at the time of independence.

Now it is one of the most extracted natural resource on the earth. At the time of providing a

constitutional mechanism for Panchayat Raj institutions, these facts were considered and

provisions relating to the management of groundwater and recharge were made implicitly ix.

The fundamental right to water and its manifestations have attained significant

developments in recent times x. The recognition has come from both international and

national understanding on the requirement of a right based approach for water

entitlementsxi. The right to water extends to drinking water, environmental dimensions and

other aspects including groundwater xii . One could bring an argument linking the

fundamental right to water and the obligation to protect water resources, concluding a

positive duty on the state to protect groundwater resources by taking appropriate measures

including MAR.

The utilization and management of material resources of the State are best guided by the

Directive Principles of State Policy (DPSP). It is to be made clear that groundwater is a

material resourcexiii and the State is expected to secure the ownership and control of these

resources to distribute for serving the common goodxiv. Further, it is the obligation of the

State to protect and improve the environment and to safeguard the forests and wild life of

the countryxv. This may be inferred to protect the water bodies in general and groundwater

resources in particular. On the other hand a duty is imposed on the individuals to protect

the environment and natural resources of the countryxvi.

NATIONAL AND STATE WATER POLICIES

The recent version of the National Water Policy and its adoption is an example of the

politics and controversies surrounded by water. The Union attempting to usurp the powers

of the States and the States were opposed to the idea of uniformity of any kind emanating

from Union mandate. The Union on the other hand did not make any sincere attempt to

fulfill the constitutional obligation entrusted with the parliament to resolve inter-state water


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disputes as well as managing inter-state rivers. The inability to manage inter-state waters

not only reflects the unwilling Union, but provides an opportunity to speculate on the

intention of the Union to take larger regulatory role over water resources. The Union’s

intention to regulate water in general and groundwater in particular, emerges from various

constraints including financial dimensions of Union sponsored projects and the projects

funded by international agencies as they reach the states with conditionality. The role of

Supreme Court is significant regarding two aspects connected to groundwater. Firstly, the

Supreme Court is liberal in its approach to declare right to water as a fundamental.

Secondly, the groundwater depletion and pollution are increasingly receiving the attention

of court. This has compelled the Union to revise the Water Policy. The newly adopted water

policy was not welcomed by all States and one cannot be sure of realizing this policy as it

may not be supported by the existing legal regime. Therefore, the water policy proposes a

framework water law which will be adopted by States under Article 252 of Indian

Constitution.

The proposed water framework law will be an umbrella statement of general principles of

law guiding all the State agencies in their water related agendaxvii. The groundwater to be

treated as a community resource held by the state under public trust doctrine, and the

existing groundwater laws to be modifiedxviii. Though the Supreme Court has held that

groundwater to be governed by public trust doctrine, the groundwater legislation which is

to be discussed later in this paper, did not consider groundwater as public trust, but consider

groundwater as a state controlled resource. Even these legislation are not enforced properly

anywhere, for instance, the Tamil Nadu Groundwater Act of 2003 is yet to be notified in

spite of High Court directionsxix.

The policy recognizes the declining groundwater levels in over-exploited areas and

addresses the technological measures to arrest such a trend. Artificial recharge programmes

are to be placed to ensure the extraction-recharge balance of groundwater. The policy

reiterates the need for aquifers to maintain the base flows to surface system and maintain

ecologyxx, it recognizes the importance of groundwater in the interstate dispute settlement,


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and it declares the importance of aquifer mapping and the need to update the maps in

future. The policy addresses several quality and quality orientated issues relating to

groundwater, recycle and reuse of water, groundwater depletion due to various projects and

the need and impact of small water harvesting structuresxxi.

Considering water as a state subject, the federal units should have come with water policies

consistently. But we find that only few states have got their water policy, these policies also

reflect the National Water Polices with few changes. For instance, the Orissa Water Policy

calls for groundwater recharge programmes by roof top method and watershed

programmes. It lays down a water utilization priorityxxii. The Tamil Nadu Water Policy, 1994

emphasis the importance of groundwater protection and enhancement of water information

infrastructure. Thus an effective governance system is missing from the State’s perspective;

this encourages the Union to take liberty in making laws to govern various aspects of

groundwater. If States have come up with a groundwater authority by their legislation,

Supreme Court might not have ordered to constitute an authority through a legislation

which was enacted to give effect for international obligationsxxiii. (What was the international

obligation to create central groundwater authority?)

MODEL LAWS

Union has continuously evolved model groundwater laws for the past two decades for the

adoption of States; number of States also enacted groundwater laws having these drafts as

models. But the benefits out of these model laws or the implementation of the groundwater

legislation are matter of great concernxxiv. It has not benefited the poor public in dealing

with groundwater depletion xxv . The Madras High court refused to intervene the state’s

scheme to provide drinking water to Chennai city while ignoring the groundwater related

rights of farmersxxvi. The court decision would have been different if the State groundwater

legislation has been brought into forcexxvii. Similarly, Plachimada groundwater pollution

might have been resolved properly if the State groundwater law is properly enforcedxxviii.


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The model bills are in the making, the process continues with the Draft Water Framework

Law released by the government of India. The proposed law claims to bring more economic

value to the water by linking groundwater with electricity tariff, it further dwells into

various groundwater recharge programmes and schemesxxix. It is relevant to look at the

portion of the draft relating to the groundwater recharge,

‚… (6)The appropriate Government shall demarcate groundwater recharge

zones by identifying critical natural recharge areas of an aquifer and those

areas that require special attention with regard to the recharge of groundwater

and including areas that are affected by contaminants and saline Water

ingress.

(7)The groundwater recharge zones …shall be accorded the highest priority in

terms of groundwater protection and regulation and the appropriate

government shall take all possible measures to conserve and protect such

groundwater recharge zones‛.

The electricity-groundwater nexus is a difficult one to be compromised in many States

where electricity for agriculture is free or highly subsidized. The importance given to the

economic value of groundwater may be subjected to criticismxxx.

UNION LEGISLATION

The Easement Act, 1882 provides an absolute right of groundwater for the owner of the

land, this illustration forms the basis for absolute ownership theory quoted often from an

illustration to explain the exclusive rights of an ownerxxxi,

‚The right of every owner of land to collect and dispose within his own limits

of all water under the land which does not pass in a defined channel and all

water on its surface which does not pass in a defined channel.‛


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In M/s Nila Sea Foods Private Limited,xxxii Justice K. Venaktaraman has observed that the

land owners have the right to draw the water from their land and absolutely there is no

prohibition for tapping water even by an enactment of law by the appropriate government.

A similar view has been expressed by the High court in Era Soundara Pandian -Vs- Mrs.

Lakshmixxxiii, the respondent used to take water from the well for drinking and domestic

purpose by using motor pump sets. The Corporation entered into the property of the

respondents and removed the motor from the premises under the Tamil Nadu Ground

Water (Development and Management) Act, 2003, later the corporation changed its version

and they claimed to have entered under some other law. Though this contradiction was not

accepted by the Court, it was observed that there is no need to initiate criminal proceedings

against erred officials. In another significant case, it was contended that without notifying

the Act, the authorities are not having right to take steps under the provisions of the Act.

This was accepted and the court directed the government to take steps to notify the Actxxxiv.

The Court made an order to State, not to issue any groundwater withdrawal permission till

the Act is notified. The above mentioned cases reflect the conflict in enforcing the

groundwater laws, thereby maintaining the validity of the provisions of Easement Act.

The Water Act, 1974 is enacted not only to maintain and restore the wholesomeness of

water but also to establish appropriate institutions with a view in carrying the objectives of

the Act.xxxv The Pollution Control Boards (PCBs) were set up both at the Central and State

level (including Joint Boards) for the effective implementation of the Act.xxxvi The PCB’s

promote cleanliness of streams and wells in different areas of the state.xxxvii The PCBs also

can enter the premises of any industry and take samples, if the water contaminated, the

PCBs can issue order for closures of industry. This is to ensure the quality and quantity of

groundwater, the industries will be indirectly forced to maintain the groundwater levels by

recharging.

The Environmental Protection Act was enacted to protect the environment which includes

groundwater resources. The Act empowers the Central Government as the sole authority to


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exercise its powers to give directions for the stoppage or regulation of the supply of water

for any other service.xxxviii Further, the Central Ground Water Board established under this

Act serves as a monitoring agency for groundwater situation, the board provides various

standards and provide technical and information assistance to Statesxxxix. The objectives of

the board include ‚enhancing ground water sustainability through artificial recharge and

rainwater harvesting as a measure for checking the depleting trend of ground waterxl‛.

STATE LEGISLATION

Water, as a State subject is to be analyzed from the State’s perspective. The provisions

relating to MAR is expressed in various local laws, the Tamil Nadu laws are the first of its

kind to provide compulsory rainwater harvesting structure in every establishment and

householdxli. It is pertinent that these laws come into effect at difficult water situations and

enforced vigorously for a particular period of timexlii. One has not come across any recent

studies to know the effectiveness of this law.

Over the last two decades, numbers of states have enacted their own groundwater laws. This

has led to major reforms in the legal regime governing groundwater in India.xliii This State

legislation broadly aims to redefine the rights, duties and roles of the government, as well

as those of individuals, vis-a-vis groundwater resources. These laws have also resulted in

institutional reforms and have also attempted to incorporate into groundwater regulation

important norms of environmental law such as conservation and sustainable use.xliv Evolving

groundwater laws seek to vest in the concerned state government the power to regulate and

control the use of groundwater by private individuals. Various state Acts have adopted the

licensing system as a regulatory tool (i.e., a permit or registration-based system). A

systematic analysis of this legislation would help us to understand the scope for MAR under

these laws.

ANDHRA PRADESH WATER, LAND AND TREES ACT, 2002


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The title of the Andhra Pradesh state legislation on groundwater indicates the emphasis on

protection and conservation. The extent of regulation could range from mere monitoring of

groundwater use through the registration process to complete prohibition or closing down

of wells. The nature and extent of regulation depends upon the quality and quantity of

groundwater in a particular area. For instance, there could be a complete prohibition on

new wells in areas designated as ‘over-exploited’.xlv One of the important features of the

evolving regulatory framework is the priority given to drinking water, particularly the

special protection given to public drinking water sources. This prioritization is sometimes

manifested in the form of provisions prescribing the distance required to be maintained by

new wells from public drinking water sources.xlvi The Act specifically prohibits ground water

contamination in any manner by anyonexlvii and prohibits direct disposal of waste waters into

the aquifers.xlviii With a view to improve the groundwater resources by methods of harvesting

and recharge the Act stipulates that the Authority may issue guidelines for constructing

appropriate rainwater harvesting structures in all residential, commercial and other

premises and open spaces.xlix The statute has a built in institutional framework for setting up

of groundwater authorities at the state level. l The state groundwater authority shall perform

the specific functions of promotion of water conservation and regulate the exploitation of

ground and surface water in the State.li

TAMIL NADU GROUND WATER (DEVELOPMENT AND MANAGEMENT)

ACT, 2003

The state legislation apart from the protection of groundwater resources interalia attempts

to provide safeguards against hazards of over exploitation and to ensure planned

development and proper management of this vital and limited resource. lii This Act applies

to the whole of Tamil Nadu except the city of Chennai and the legal provisions relating to

extraction and use of groundwater in Chennai is governed by a separate legislation liii. The

Act empowers the State Ground water Authority to develop, control, regulate and

administer the groundwater and to direct and regulate the development and management

of groundwater resources in the State consistent with conserving it and ensuring its optimal


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and efficient utilization. liv The Authority for the purpose of maximizing the feasible,

conjunctive use of surface-water and ground-water may identify and notify ‘suitable areas’ to

stabilize the existing use or to improve or increase the use of water. lv The Act further

confers power upon the Authority to lay down or adopt standards for quality of water

depending on the kinds of water use by having regard to the standards evolved by the

institutions either statutorily empowered or technically competent to do so.lvi The Authority

has the power to direct, regulate and control the development, extraction and utilization of

groundwater in the notified area.lvii To make suitable modification of groundwater regime

due to mining activities, the Authority if satisfied may direct the disposal of mine water in a

manner that it may be directly used by the farmers and its recharge, if feasible to augment

groundwater storage. lviii As a regulatory mechanism, the Act also prohibits the

transportation of groundwater by means of lorry, trailer or any other motor vehicle from

any notified area for any purpose without obtaining a permit under the provisions of the

Act.lix Any person desiring to transport groundwater from any notified area for any purpose,

by means of lorry, trailer or any other motor vehicle shall apply to the authority for the

grant of a permit.lx

KERALA GROUND WATER (CONTROL AND REGULATION) ACT, 2002

The important legal change is the incorporation of objectives of conservation and

development of the resource. Most of the evolving groundwater legislation emphasizes

conservation and development as major objectives. The Act recognizes the need for

conservation in its preamble.lxi The Act envisages the classification of areas on the basis of

the condition of the groundwater. lxii Further the permit may be denied if it is likely to

endanger the existing use of groundwater in that area. This regulatory framework also

provides scope for subsequent alterations in the conditions specified in the permit or

certificate of registration.lxiii The regulatory framework provided under the Act is generally

applicable to the ‘notified areas’. The power to notify an area vests with the state

government lxiv and therefore the power of the groundwater authority in this regard is

merely advisory in nature. The Kerala Government accorded priority to public drinking


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water use under the Actlxv and it mandates for the maintenance of quality of groundwater as

a criterion required to be considered while granting permit or certificate of registration. lxvi

HIMACHAL PRADESH GROUND WATER (REGULATION AND CONTROL

OF DEVELOPMENT AND MANAGEMENT) ACT, 2005

The Act applies to certain notified areas and permit or registration system is put in place in

such notified areas.lxvii The Act empowers the Authority for the purpose of improving the

groundwater situation to identify the areas of groundwater recharge and to issue guidelines

for adoption of rain water harvesting for groundwater recharge in such areas. lxviii The Act

requires all users in such notified areas to register their wells. lxix Potential users are required

to seek prior permission. The control over groundwater use is sought to be effectuated by

imposing conditions specified in the permit or certificate of registration. lxx The Act accords

first priority to drinking water usage over other needs while granting permit or

registration.lxxi The need to prioritize drinking water has been expressly recognized by the

judiciary in a couple of cases.lxxii The norm of according priority to drinking water is the

prima facie objective of ground water laws. While granting permit the Authority has to

consider the maintenance of quality of groundwater and its usage.lxxiii

WEST BENGAL GROUND WATER RESOURCES (MANAGEMENT,

CONTROL AND REGULATION) ACT, 2005

The Act aims to manage, control and regulate indiscriminate extraction of ground water in

the state. Groundwater authorities are vested with the responsibility of enforcing the

regulatory tools provided by the relevant statutes to ensure sustainable use. By and large,

the institutional mechanisms provided under various state groundwater laws follow a

similar structure and perform similar functions. lxxiv However, there are some variations

across states. For example, West Bengal has put in place a decentralized structure by

providing three levels of groundwater authorities – state level, district level and corporation

level. lxxv The decentralized institutional mechanism emphasise on preparation of district-

wide groundwater profile periodically.lxxvi The Act in its preamble stated that maintenance of

quality of groundwater as an objective and this mandate is to be considered while granting


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permit or certificate of registration. lxxvii While granting certificate of registration the

Authority shall consider the groundwater balance, the quality and quantity of groundwater

available in the locality. lxxviii The Act also imposes a legal obligation on the District or

Corporation Level Authority to keep a regular vigil on the quality and quantity of water

available from the ground water resources in the district or the corporation, as the case may

be, and promptly bring to the notice of the State Level Authority any sudden deterioration

in ground water resources or contamination of ground water resources with poisonous

metals or chemicals or otherwise.lxxix

CHHATTISGARH GROUND WATER (REGULATION AND CONTROL OF

DEVELOPMENT AND MANAGEMENT) ACT, 2012

The Act regulates and controls the Development and Management of Ground Water. The

Act mandates the Authority, after consultation with various expert bodies, including Central

Ground Water Authority (CGWA) to control and or to regulate the extraction or the use or

both of ground water in any form in any area, to advise the State Government to declare any

such area to be a notified area.lxxx For the purpose of groundwater recharge the Act explicitly

contains a provision under which the Authority may identify the recharge worthy areas in

the State and issue necessary guidelines for adoption of rain water harvesting for ground

water recharge in these areas. In rural areas, watershed management to facilitate ground

water recharge may be encouraged through community participation. lxxxi This legal

provision inter alia emphasized the over-exploitation of ground water due to ever increasing

population and other development activities that have led to fall in ground water table,

drying up of wells, reduced sustainability of tube wells, environmental degradation etc. in

many parts of the State. The Act underlines the need for groundwater recharge and rain

water harvesting since it is essential to improve the ground water situation in critical areas.

The Act prohibits contamination of groundwater by anybody including industrial, local

bodies. It also prohibits direct disposal of waste waters into the aquifers.lxxxii


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CONCLUSION

The following observations emerge from the discussion on MAR, groundwater laws and

policy,

1. The laws and policies are inconsistent; such an inconsistency is not absolutely bad.

But the criticism is that they cannot operate together in the present situation because

of this inconsistency. If the state prefers to give primacy for policy, it leaves the laws

not to be notified, authorities and rules are not to be made, ensuring that the state

actions are not condemned by law and Courts. This kind of inconsistency defeats the

purpose of both law and policy.

2. The Union and States conflict with each other on various issues relating to

groundwater, specifically on the primacy of the States to enact laws, enforcement of

schemes and funding. These conflicts must end and the States may progressively

make laws and policies ensuring their jurisdiction.

3. Managed Aquifer Recharge is a natural development of scientific studies; the Union

and States must progressively use the scientific advancements relating to

groundwater resources and incorporate them into the legal and policy framework.

MAR: Comparative Table of Selected Groundwater Laws

State

Act

Applicability &

Purpose of

Legislation

General control

of Groundwater

Specific reference

to MAR

Andhra

Pradesh

Andhra

Pradesh

Water, Land

and Trees Act,

2002

Applicable to

all ground

water resources

in the State and

to Promote

Water

Conservation,

and Tree Cover

and

Regulate the

Ground water

contamination

in any manner

by anyone is

prohibited.

[sec.19]

Direct disposal

of waste waters

into the aquifers,

To improve the

ground water

resources, by

harvesting and

recharge,

the Authority

may issue

guidelines for

constructing

appropriate


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Exploitation

and Use of

Ground and

Surface Water

for Protection

and

Conservation of

Water Sources,

Land and

Environment

is prohibited.

[sec.19(2)]

rainwater

harvesting

structures in all

residential,

commercial and

other premises

and open

spaces.

[sec.17(1)]

Tamil Nadu

Tamil Nadu

Ground-water

(Development

and

Management)

Act, 2003

Applicable to

whole of Tamil

Nadu except

the city of

Chennai.

To protect

groundwater

resources to

provide

safeguards

against

hazards of its

over

exploitation

and to ensure

its planned

development

and

proper

management in

the State of

Tamil Nadu

The Authority

shall have power

to direct,

regulate and

control the

development,

extraction and

utilization of

groundwater

[sec.9(3)]

The authority

may direct the

disposal of mine

water in a

manner that it

may be directly

used by the

farmers and its

recharge, if

feasible to

augment ground-

water storage.

[sec.5]

Chennai

Metropolitan

Area

Groundwater

(Regulation)

Act,1987

Applicable to

the whole city

of Chennai and

certain revenue

villages in

Chengalpattu

District.

To regulate and

control the

extraction and

use of

Licence to be

obtained for

extraction, use

or transport of

groundwater.

[sec.5]

To ensure

optimum

utilisation of

groundwater and

formation of

hydraulic barrier

against sea water

intrusion, the

Government shall

issue instructions

to the Board for


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groundwater in

any form and to

conserve the

same.

implementing

within such

period as may be

prescribed the

scheme for

artificial

recharge.

[sec.14]

Kerala

Kerala

Ground Water

(Control and

Regulation)

Act, 2002

Applicable to

certain notified

areas

[sec.6(1)]

Grant of Permit

to extract and

use ground

water [sec.7]

Himachal

Pradesh

Himachal

Pradesh

Ground Water

(Regulation

and Control

of

Development

and

Management)

Act, 2005

Applicable to

notified areas

To regulate and

control the

development

and

management of

ground water

Establishment of

an

authority(Sec.3)

Licence to

extract

groundwater(

sec.6)

Identify the areas

of ground water

recharge and

issue

guidelines for

adoption of rain

water harvesting

for ground water

recharge in such

areas

[sec.15(1)]

West Bengal

West Bengal

Ground Water

Resources

(Management,

Control and

Regulation)

Act, 2005

Applicable to

the State of

West Bengal

To manage,

control and

regulate

indiscriminate

extraction of

ground water in

West Bengal

Authorities at

various levels

(sec. 3)

Sinking of

wells for

extracting or

using ground

water (Sec. 7)

State Level

Authority to issue

certificate for

recharge of

ground water

[sec.8(2)(c)]

Chhattisgarh

Chhattisgarh

Ground Water

(Regulation

and Control

of

Development

and

Management)

Act, 2012

Applicable to

the State of

Chhattisgarh

To improve the

ground

water situation

Establishment of

an

authority(sec.4)

Permission to

extract

groundwater

(sec. 7)

The Authority

may identify the

recharge worthy

areas in the State

and issue

necessary

guidelines

[sec.20(1)]


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NOTA BENE

*ACKNOWLEDGEMENT

Co-funding to the collaborative project ‚Enhancement of natural water systems and

treatment methods for safe and sustainable water supply in India – Saph Pani

(www.saphpani.eu) from the European Commission within the Seventh Framework

Programme (grant agreement number 282911) is gratefully acknowledged. The authors

acknowledge Mr. C. E. Paratap, Advocate, Chennai for the research assistance.

REFERENCES

i Saroj Sharma, Managed Aquifer Recharge: Introduction, UNESCO-IHE, Institute for Water Education, Delft

(2011). ii The Plachimada controversy is an example of emerging conflict between the public and industries over

depleting groundwater resources and pollution. See generally, Sujith Koonan, Groundwater – Legal Aspects

of Plachmada Dispute, in P.Cullet, A.Gowlland-Gualtieri, R.Madhav and U.Ramanathan(eds.), Water

Governance in Motion: Towards Socially and Environmentally Sustainable Water Laws, Cambridge

University Press India Pvt. Ltd. (Delhi:2010). iii Debasis Poddar, Groundwater Governance in India: An Imperative for Climate-conscious Law and State

Policy, unpublished paper presented in Second International Conference on Climate Change and

Sustainable Management of Natural Resources, organized by ITM Universe- Gwalior held on December 5-7,

2010. iv National Water Policy, 2012; Jain,S K, Harnessing the Managed Aquifer Recharge Potential for Sustainable

Ground Water Management in India, India Water Week 2012 – Water, Energy and Food Security : Call for

Solutions, New Delhi (2012). v Gale,I N, Macdonold,D M J, Calow,R C, Neumann, I, Moench,M, Kulkarni,H, Mudrakartha,S and

Palanisami,K, ‚Managed Aquifer Recharge:An Assessment of its role and effectiveness in watershed

Management‛, Report of the DFID KAR project R8169, Augmenting Groundwater Resources by artificial

Recharge (2006). vi Supra note 2. vii Subsistence agriculture refers to farming for basic livelihood needs. Refer, http://www2.ac-toulouse.fr/lyc-

saintex-ouaga/index.php?option=com_content&view=article&id=169:subsistence-farming, accessed on

10.06.13. viii Entry 17, List II, Seventh Schedule, Constitution of India. ix The 11th and 12th Schedules to the Constitution of India refers to water management, watershed development

and water supply as a subject which may be managed by local governments. x Subhash Kumar –Vs- State of Bihar AIR 1991 SC 420. xi M. K. Balakrishan and Others -Vs- Union of India and Others 2009 (3) CTC 412; Delhi Water Supply &

Sewage Disposal Undertaking and Another -Vs- State of Haryana and Others 1996 (2) SCC 572. In these cases

the Supreme Court recognized that the right to clean, healthy and potable water is a part of life and

livelihood under Article 21 of the Constitution of India. xii Ibid

http://www.saphpani.eu/

http://www2.ac-toulouse.fr/lyc-saintex-ouaga/index.php?option=com_content&view=article&id=169:subsistence-farming

http://www2.ac-toulouse.fr/lyc-saintex-ouaga/index.php?option=com_content&view=article&id=169:subsistence-farming


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xiii ‚ Material resources as enshrined in Article 39(b) are wide enough to cover not only natural or physical

resources but also moveable or immovable properties‛, State of Tamil Nadu v Abu Kavur Bai, AIR 1984 SC

326. xiv Art. 39(2), Constitution of India; See generally, David Ambrose. A, Directive Principles of State Policy and

Distribution of Material Resources with Special Reference to Natural Resources – Recent Trends, Journal of

the Indian Law Institute, 55 (2013) the author concludes that the method of distribution of material

resources are subject to judicial scrutiny. xv Art. 48(A), Constitution of India. xvi Art. 51(A), Constitution of India. xvii National Water Policy, 2012, Part 2. xviii Ibid. xix The case is referred in Pacahi Perumal Vs State of Tamil Nadu, Judgement dated 08.07.2011 in

W.P.(MD)No.6826 of 2011, available at http://indiankanoon.org/doc/1331549/ (last accessed on 07.06.2013) xx Supra note 18. xxi Ibid, Part 6. xxii Orissa Water Policy, 2007, Part 9. xxiii Environment (Protection) Act, 1986 Act No. 29 of 1986. xxiv Sujith Koonan, ‘Legal Regime Governing Groundwater’, in Philippe Cullet, Alix Gowlland Gualtieri, Roopa

Madhav and Usha Ramanathan (Eds.), Water law for the twenty-first century: national and international

aspects of water law reform in India (2010) p.191. xxv S.Ramamirtham v. State of Tamil Nadu, Judgement of the High court of Madras dated 01.04.2005 in Writ

Petition 1833 of 2005. xxvi Ibid. xxvii Tamil Nadu Ground Water (Development and Management) Act, 2003 has not been brought into force.

But some of the principles in this legislation are given effect by Government Orders. xxviii Supra note 3: The plachimda dispute is an another example of non application of laws towards

groundwater situation. The states asserts their right to extract water resources as explained in the previous

Tamil Nadu case, when it comes to protection of resources the same states wither away from responsibility. xxix See, Report of the Committee for Drafting of National Water Framework Law, available at

http://mowr.gov.in/writereaddata/linkimages/nwfl1268291020.pdf (last accessed on 06.06.2013). xxx The researchers have accessed the critical appraisal of the water policy and framework law by member of

various forums, specifically at www.indianwaterportal.org. xxxi Illustration (f), Section.7(a), Easement Act, 1882, Act No. V of 1882. xxxii The case is referred in Pacahi Perumal v. State of Tamil Nadu, Judgement dated 08.07.2011 in

W.P.(MD)No.6826 of 2011, available ate http://indiankanoon.org/doc/1331549/ (last accessed on 07.06.2013). xxxiii Crl. R.C. (MD) No. 191 of 2010 16 November 2011. http://indiakanoon.org/doc/615939472. xxxiv Pacahi Perumal v. State of Tamil Nadu, Judgement dated 08.07.2011 in W.P.(MD)No.6826 of 2011,

available at http://indiankanoon.org/doc/1331549/ (last accessed on 07.06.2013). xxxv Water (Prevention and Control) Act, 1974 (Act No. 9 of 1974) xxxviIbid, Section 3, 4 and 13. xxxvii Ibid, Section 16 and 17 . xxxviii Supra note 24, Section 5 (b) . xxxix Ibid, Section. 3(3). xl See the official website of the boards, http://cgwb.gov.in/objectives.html (last accessed on 10.06.2013). xli Tamil Nadu Municipal Laws(Second Amendment) Ordinance, 2003: Rules were also made under various

building regulations to make rainwater harvesting a mandatory. xliiSee, Souvik Bose and Abdus Salam, The Way out of dry times: Making rainwater Harvesting Mandatory, 1

Indian Juridical Review (2004) p. 256. xliiiFor the list of States having separate groundwater law, see Table below. xlivSupra note 3, p.191. xlvAndhra Pradesh Water, Land and Trees Act, 2002, Section 11.

http://indiankanoon.org/doc/1331549/

http://mowr.gov.in/writereaddata/linkimages/nwfl1268291020.pdf

http://www.indianwaterportal.org/



http://cgwb.gov.in/objectives.html


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xlviIbid., Section 10. xlviiIbid., Section 19. xlviiiIbid., Section 19(2). xlixIbid., Section 17(1). lIbid., Section 5(1). li Ibid., Section 6. liiSee, Tamil Nadu Ground Water (Development and Management) Act, 2003, Preamble. liiiChennai Metropolitan Area Groundwater (Regulation) Act,1987. livIbid., Section 3. lvIbid., Section 4. lviIbid., Section 6. lviiIbid., Section 9(3). lviiiIbid., Section 5. lixIbid., Section 13(1). lxIbid., Section 13(2). lxiKerala Ground Water (Control and Regulation) Act, 2002. lxiiIbid, Section 7(7). lxiiiIbid., Section 11. lxivIbid., Section 6. lxvIbid., Section 10. lxviIbid., Sections 8(5)(d) & &(7)(d). lxviiHimachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005

Section 5. lxviiiIbid, Section 15(1). lxixIbid, Section 7(1). lxxIbid, Section 7(3). lxxiIbid, Section 8(2). lxxiiF.K.Hussain v. Union of India AIR 1990 Ker.321 and Venkaatagiriappa v. Karnataka Electricity Board 1999

(4) Karnataka Law Journal 482. lxxiiiSupra note 68 Sections 7(5)(d) and 8(4)(d). lxxivSupra note 3, p.192. lxxvWest Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005 lxxviIbid., Section 9(a). lxxviiIbid., Sections 7(3)(a). lxxviiiIbid., Section 8(2)(a). lxxixIbid., Section 9(c). lxxxChhattisgarh Ground Water (Regulation and Control of Development and Management) Act, 2012 Section

6(2). lxxxiIbid., Section 20(1). lxxxiiIbid., Section 20(5).


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STATE OBLIGATIONS UNDER INTERNATIONAL

CRIMINAL LAW: PROGRESS, CHALLENGES AND

PROSPECTS

DEEPA KANSRA

INTRODUCTION

Human rights reflect the collective aspirations and commitments of the global

community. Over the years, the human rights movement, zealously led by several players

in addition to the state, has resulted in the acceptance of a variety of global and domestic

obligations. In specific, the UN created human rights regime has endorsed a

multidimensional approach towards the articulation and implementation of human rights

obligations.

With several challenges being faced, the inability to prosecute for violations of

human rights has been most critical and complex for international law. In this regard,

international criminal law (ICL), a specialized branch of international law, is authentically

determined to realize the objective of prevention and prosecution of crimes. ICL is

potentially the medium that pushes states to seriously consider their conduct in relation to

grave violations, commonly referred to as international crimes. Over the years, the

mandate of States under ICL has expanded vigorously, encompassing efforts made even by

non-state institutions and several other players.i The objective of international criminal law

has also become clearer and more defined with the adoption of specific rules and the

creation of specialized institutions.

Setting the pace for a stronger role to be played by international law, the

International Law Commission in 1954 adopted a Draft Code of Offences against the Peace

and Security of Mankind, which declared genocide, aggression, crimes against humanity,

and war crimes as criminal under international law. Post World War II, several

institutional mechanisms were created for the sake of the prosecution of individuals


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committing the said crimes. ii Justice was sought to be achieved through a variety of

institutions like specialized Tribunals, Truth Commissions, Special Courts (Sierra Leone),

Hybrid Chambers (Kosovo, East Timor). The creation of these institutions is said to have

been supported by three political reasons;

a. Replacing private vengeance with the rule of law and thereby promoting long-term

peace and stability

b. Creating a historical record as a means to educate future generations, and

c. Providing a sense of closure for the injured individuals and communities.iii

More specifically, the mandate of the specialized institutions has been to deal with impunity

for grave violations. In terms of meaning, impunity signifies that that those who deserve

punishment for grave violations have escaped the rigours of the law. iv Even today,

international criminal law is progressing on a shared understanding that there shall be no

impunity for international crimes. The permanent mark of ICL has been made with the

International Criminal Court (ICC), created under the Rome Statute and committed to

ending impunity for international crimes. The creation and working of this international

forum has created obligations for states, both individually and collectively, to deal with

impunity. The determination of the ICC is to ensure the ‘administration of punitive

justice… up to the international level’.v Since the creation of the ICC, there are stronger and

more visible implications for national systems. To illustrate on that point, in 2011,

Netherlands, Belgium and Slovenivi urged the UN General Assembly (UN GA) to begin

drafting a new multilateral Convention (State Cooperation Convention) which would

facilitate cooperation amongst the States in the investigation of war crimes and crimes

against humanity.

It is true that in the field of criminal prosecution, both international law and

domestic law have evolved and faced obstacles. The fullest realization of the objectives set

out by ICL is also hindered because of a variety of reasons;

a. The failure to define crimes under international law as crimes under national law

b. Inadequate definitions of crimes and principles of criminal responsibility


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c. The political control over decisions to investigate, prosecute or extradite

d. Restrictions on the rights of victims with regard to the proceedings and to reparation

e. The recognition of amnesties and similar measures of impunity.vii

The application of the ICL also involves great troubles owing to the involvement of state

officials in the commission or instigation of the international crimes. The concern has been

consistently raised by the International Law Commission since the 1950’s, (Draft Code of

Offences Against Peace and Security of Mankind 1950, 1954, 1996), that the official position

of an individual who commits a crime against the peace and security of mankind, even if he

acted as Head of State, does not relieve him of criminal responsibility. In other words,

immunity is not enjoyed by Heads of State or government. In essence, the duty to prosecute

individuals for the commission of international crimes, irrespective of official position, has

developed as a fundamental principle of international criminal law. The rule affects both

national law and international law.

THE DUTY TO PROSECUTE

There are three identifiable issues that necessarily must be discussed in the context of

international criminal law;

a. The nature of the duty to prosecute

b. The relationship between domestic law and international criminal law

c. The political obstacles to ending impunity.

The objective of ending impunity for international crimes has led to the articulation

of the duty to prosecute under ICL. The duty to prosecute emanates from treaty law,

international customary law, and jus cogens norms. For instance, Article 1 of the Statute

for the Court on Sierra Leone states that there is hereby established a Special Court for

Sierra Leone to prosecute persons who bear the greatest responsibility for serious violations

of international humanitarian law and Sierra Leonean law committed in the territory of

Sierra Leone since 30 November 1996.viii In 2012, the International Court of Justice in


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Belgium v. Senegalix established that it is the duty of states to investigate and prosecute

crimes under international law. Observable, the exercise of universal jurisdiction has been

effectuated by various states like that of France, Argentina, Germany, Netherlands,

Norway, South Africa, Spain etc.x

The mandate for effective investigation and prosecution of grave violations has

begun to reflect in the endeavours made by the UN and several states. The General

Assembly in 2008 adopted a Resolution on the Promotion of the International Criminal

Courtxi. The Resolution states that ‚noting with concern the continuation in some parts of

the world of persistent violations of international humanitarian law and international

human rights law; and reaffirming that all states have the primary duty to investigate,

prosecute, and punish those violations so as to prevent their recurrence and avoid the

impunity of the perpetrators of those crimes, by taking measures whether at the national

or the international level, including, as appropriate, referral to the International Criminal

Court…‛

In 2013, a statement was made by the European Union at the United Nations

General Assembly Thematic Debate on the Role of the international criminal justice in

Reconciliation. The statement is expressed as follows, ‚we wish to reiterate our very strong

support for international criminal justice, which is key to ending impunity, to assist with

building peace and reconciliation, and to bringing justice to, and rehabilitation for, victims

of mass atrocities… Those who commit the most serious crimes of international concern

must know that they will be held accountable for their actions‛. xii In 2013, the United

Nations High Commissioner for Human Rights stated that ‚again, despite the truly

inspiring advances in combating impunity and ensuring accountability both at the

international and national levels, including through transitional justice processes, there are

still far too many people with command responsibility who escape justice for serious

crimes and gross human rights violations. Hundreds of thousands of people have died in

genocides in Rwanda and Bosnia and Herzegovina; the Palestinian territories are still

occupied; massive violations have occurred in Iraq and Sri Lanka; and war crimes continue

to be committed in numerous internal conflicts including those continuing in Afghanistan,


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the Democratic Republic of the Congo, Mali, Sudan and Syria. We must continue to

nurture and strengthen the system designed to deal with such crimes and violations, and

those who commit them. It is also critical that we in the international community do our

utmost to prevent such situations from developing or deteriorating.‛xiii

In this regard, the permanent court (International criminal court), was also an outcome

of the persistent efforts of the international community to have a criminal court of

universal acceptance.xiv The principle of complementarity has always been fundamental to

the acceptance of the mandate of the ICC by the international community. In essence, the

principle allows States to investigate individuals within their jurisdiction who are ‚actual or

potential targets of ICC investigation‛. xv Complementarity establishes a relationship

between the ICC and the States, wherein the former is to act when the State authorities fail

to pursue prosecution of international crimes. The acceptance of the principle is evident

from the Preamble of the Statute which deals with the duty of every State to exercise

jurisdiction over those committing international crimes.

DOMESTIC LAW AND INTERNATIONAL CRIMES

The impact of ICL on domestic legal systems has been notable in the context of various

legislative initiatives undertaken.

A survey was undertaken in this regard by Amnesty International to evaluate the

level of incorporation of international criminal law rules into domestic penal law. The

preliminary survey indicates that 164 (approximately 85 %) of the 193 UN member states

have defined one or more of the four crimes under international law (war crimes, crimes

against humanity, genocide and torture) as crimes in their national law. However, not only

have many states failed to define all of these crimes under international law as crimes

under national law, but in many instances the definitions are not consistent with the

strictest requirements of international law.


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In Canada, the Crimes against Humanity and War Crimes Act (2000) combines the

two complementary approaches to incorporating international crimes into Canadian law. It

refers to international law but also defines specific crimes at times. The three core crimes

are defined by immediate reference to customary international law, conventional

international law and general principles of law... While the Act relies partially on the Rome

Statute and international law to define genocide and crimes against humanity, it does not

define war crimes at all. Rather, it refers to war crimes as a concept; it assumes that

international law and practice will serve as the paramount source of judicial guidance

regarding these crimes. xvi

In Africa, the Protocol for the Prevention and the Punishment of the Crime of

Genocide, War Crimes, and Crimes against Humanity and All Forms of Discrimination,

2006 is an important sub-regional instrument which mandates for the prosecution of

individuals for international crimes. (Article 12 states that official states shall not act as a

shield for criminal liability). In 2003, Rwanda adopted the Law 33 which outlaws immunity

of state officials for international crimes. Burundi in 2009 amended its Penal Code to

include and punish international crimes such as genocide, crimes against humanity and

war crimes. Kenya adopted the International Crimes Act in 2008. The Constitution of

Kenya requires that the immunity of a state official should not prevail over Kenya’s duty to

prosecute arising from any ratified treaty outlawing immunity (Article 2 (5)) Uganda

enacted the International Criminal Court Act, 2010 to give effect to the Rome Statute. The

Criminal Code of Ethiopia (2005) prohibits and punishes international crimes and outlaws

immunity.

In UK the International Criminal Court Act (2001) has been adopted with the following

objective, ‚an Act to give effect to the Statute of the International Criminal Court; to

provide for offences under the law of England and Wales and Northern Ireland

corresponding to offences within the jurisdiction of that Court; and for connected

purposes‛. In brief, the Act provides for the procedure to be followed in cases where in the

ICC requests for the arrest and surrender of an individual. It also defines genocide, crimes

against humanity and war crimes as crimes under the law of England.


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CONCLUSION

In 1998, the challenge of impunity was sought to be checked by the creation of the

International Criminal Court. Since then, ICL has grown tremendously to create both a

sense of security and discomfort for the global community. With several states

incorporating the mandate of prosecution within domestic law, several others have

challenged the very existence and functioning of the ICC. For instance, the United States

has refused to support the ICC and alleged to use any force necessary to secure its

officers/personnel from the ICC. India has referred to ICC as an institution in conflict with

the bounds of sovereignty.xvii

Despite the obstacles present, ICL is certainly progressive and capable of

establishing a firm ground for dealing with impunity. The Statute of the ICC is an

advanced document since it aims to address the fundamental concerns over the

prosecution of gender related crimes, the role of victims during trial before the ICC, the

provision for compensation and reparation. As evident from the recent and initial

judgments of the ICC, international criminal law is rightfully setting the pace for the

collective and efficient sharing of responsibilities amongst the global and domestic

institutions of justicexviii.

REFERENCE

i Reference can be made to the Syria Justice and Accountability Centre, set up by an US based non-

governmental organization in 2012 with the mandate for collecting, processing, analyzing crucial information

of violations of humanitarian law and human rights in Syria. The objective of the centre is to identify patterns

of events, capture a historical record of victim’s experiences in view of a broad range of future accountability

and transitional justice processes. See Website of the SJAC at http://syriaaccountability.org/ ii During the last fifteen years, international courts have advanced international criminal justice in regional

contexts and within the narrow jurisdictional mandates of the International Criminal Tribunals for the former

Yugoslavia (ICTY) and Rwanda (ICTR), the Special Court for Sierra Leone, the Extraordinary Chambers in the

Courts of Cambodia, and war crimes courts in Bosnia- Herzegovina, Kosovo, and Timor. While those tribunals

were evolving, the international community embraced the idea of a permanent criminal court that in most

respects would obviate the need for the time- consuming and costly creation of specialized international or

hybrid (part national, part international) courts for individual atrocity situations as they erupt anywhere in the

world. See David Sceheffer, Ashley Cox, ‚The Constitutionality of the Rome Statute of the International

http://syriaaccountability.org/


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Criminal Court‛, Vol. 98 No.3 The Journal of Criminal Law and Criminology 983-1068, 989 (2008); Yuval

Shany, ‚Assessing the Effectiveness of International Courts: A Goal Based Approach‛ VOL. 106: 225 The

American Journal of International Law, 225-270 (2012). iii Jenia Iontechva Turner, Defense Perspectives on Law and Politics in International Criminal Trials, Vol 48:3

Virginia Journal of International Law 530-594, 536 (2008). iv George P. Fletcher, Jens David Ohlin, ‚Reclaiming Fundamental Principles of Criminal Law in the Darfur

Case‛ 3 Journal of International Criminal Justice 539-561, 540 (2005). v Marlies Glasius, The International Criminal Court: A Global Civil Society Initiative, 2 Routledge New York

(2006). vi See Amnesty International, ‚Strengthening this Essential Tool of International Justice‛ 19 (October 2012)

https://doc.es.amnesty.org/cgi-bin/ai/BRSCGI/ior530202012en?CMD=VEROBJ&MLKOB=32120785151 vii Amnesty International, ‚Universal Jurisdiction: A Preliminary Survey of Legislation Around the World‛,

Amnesty International Publications, United Kingdom 11 (October 2011).

http://www.amnesty.org/fr/library/asset/IOR53/004/2011/en/d997366e-65bf-4d80-9022-

fcb8fe284c9d/ior530042011en.pdf viii http://www.icrc.org/ihl.nsf/WebART/605-%201?OpenDocument ix http://www.icj-cij.org/docket/index.php?p1=3&p2=3&case=144&code=bs&p3=5 x See Hirad Abtahi & Steven Arrigg Koh, ‚The Emerging Enforcement Practice of the International Criminal

Court‛, Vol. 45 Cornell International Law Journal 1-23, 4 (2012). xi General Assemble- AG/RES. 2364 (XXXVIII-O/08), Available at http://www.oas.org/dil/AGRES_2364.pdf xii EU Statement available at http://www.eu-un.europa.eu/articles/en/article_13382_en.htm xiii Opening Statement by Ms. Navi Pillay United Nations High Commissioner for Human Rights at the 22nd

session of the Human Rights Council, (2013). Available at

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13031&LangID= xiv Lydia Apori Nkansah, ‚International Criminal Justice in Africa: Some Emerging Dynamics‛, Vol. 4 No. 2

Journal of Politics and Law 74-84, 74 (September 2011). xv David Sceheffer, Ashley Cox, ‚The Constitutionality of the Rome Statute of the International Criminal

Court‛, Vol. 98 No.3 The Journal of Criminal Law and Criminology 983-1068, 997 (2008). xvi Morten Bergsmo, Mads Harlem and Nobuo Hayashi (editors), Importing Core International Crimes into

National Law, Torkel Opsahl Academic EPublisher 15 (2010). xvii See Vahida Nainar, Saumya Uma (Eds.), Combating Impunity: A Compilation of Articles on the ICC and its

Relavance to India, Women’s Reserach Action Group (April 2003); Saumya Uma, ICC and India: Responses to

Queries Raised by Parliamentarians, Women’s Research and Action Group in Association with People’s Watch,

Tamil Nadu (2006). xviii See Kai Ambos, ‚The First Judgment of the International Criminal Court (Prosecutor v. Lubanga): A

Comprehensive Analysis of the Legal Issues‛ Vol. 12 No.2 International Criminal Law Review (2012);

Alexander Greenawalt, ‚Justice without Politics: Prosecutorial Discretion and the International Criminal

Court‛ Vol. 39 NYU Journal of International Law and Politics (2007).


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CONTRIBUTION OF SUFISM IN RELIGIOUS POLICY

OF MODERN INDIA

GOURISHWAR CHOUDHURI

Despite use of the term ‘Secular’ in the Constitution of India, in practice, essence of secularism

is reduced (if not abused) to appease all religions including their minute denominations as

well. Such official religious policy of the State in turn has encouraged fusion of religion and

politics that prompts the countrymen of diverse religions bleed inter se and all these are

accomplished in the name of divinity. Sufism is a cult that inspires a transcendental

trajectory of secularism since long back.

It has been rightly observed that Sufism is ‚free from the shackles of religion‛. Thus the

universality of Sufism is accepted on all hands. The present paper makes an attempt to trace

the origin of Sufism, its role as an unifying and syncretistic force in Medieval India and the

current relevance of its teachings in fostering communal harmony and religious tolerance.

Before studying Sufism as a phenomenon it would be profitable to

study the emergence of Islam as a religion. It was during the holy month of Ramadan in

610 A.D. that, an Arab businessman had an experience that changed the history of the

world. Muhammad ibn Abdullah used to retire to a cave in the Mount Hira every year at

this time to pray, fast and give alms to the poor. He was much concerned at what he

perceived to be a crisis in the Arab society. There was growing spiritual restlessness in

Mecca and throughout the Arabian peninsula as the Arabs knew that the Judaism and

Christianity which was practised in the Persian and the Byzantine empires was more

sophisticated than their own pagan traditions. It seemed to many of the thoughtful people

in the Arabia that the Arabs were a lost race ignored by God himself.

All was to change on the night of 17 Ramadan when Muhammad felt himself

overpowered by a devastating presence. A voice ordered him to recite and he recited in the


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name of Allah. In this way the Holy Quran was first revealed to Muhammad. At first he kept

quiet as more revelations poured in and it was only in 612 A.D. that he felt empowered to

preach and gradually gained converts- his wife Khadija, his cousin Ali, his friend Abu Bakr

and the young merchant Usman. Its teachings were simple it advocated the worship of a

single God called Allah who had created the world and who would judge humanity in the

last days instead of polytheism and idol worship.

The new sect was called Islam (surrender) and a man or woman who

made this submission of their entire being to Allah was called a Muslim. Muhammad

acquired a small following and eventually some seventy families converted to Islam. The

powerful man of Mecca soon began opposing Muhammad as they believed he was

preaching against the belief of their fore fathers. The continued hostility of the Quraysh

compelled the Prophet Muhammad to look elsewhere for the propagation of his faith. He

ordered his followers to migrate to Yathrib. He himself migrated to Yathrib which was later

renamed Madinah and reached there on 2nd July 622 A.D. This is called Hijrat or Migration

and the Muslim era Hijri dates from this event. Phillip K. Hitti observes, ‚The Hijrat proved

a turning point in the life of Muhammad.‛i The years of humiliation, of persecution were

over and the years of success begun. From 622 to 632 A.D. Prophet Muhammad was in

charge of the expanding community (Umma) at Medina and by the time of his death in 632

A.D. almost all the tribes of Arabia had joined the Ummah. During the rule of the Umayyad

(661-750A.D.) and the Abbasid caliphs (750-1258) Islam spread over the three continents of

Asia, Africa and Europe.ii

However not long after the Prophet’s death Islam began to have its internal

convulsions. The first great schism took over the question of the privileges of the

descendants of the Prophet, especially through the line of his cousin and son-in-law Ali and

it involved both theological and political issues. This division led to the emergence of the

sect called Shias.

EMERGENCE OF SUFISM


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Another important development was the growth of Sufism or Islamic mysticism. Before

tracing the origin of Sufism it is important to discuss the origin of the word Sufi. Most of the

Sufis hold it is derived from the word Safa (purity) and that Sufi is one who has been

purified from all worldly desires and passions. Others connect it with the word Saff (rank)

since a Sufi in spirituality is in the first rank by virtue of his communion with the Supreme

Being (Allah). There is another school of opinion, which holds that the derivation of the

word is not on any philosophical grounds and that it is derived from the word Suf- the

garment of coarse un-dyed wool- which has been the habit of the Sufi saints and all those

who follow the ascetic way of life.

The genesis of Sufistic tendency in Islam is obscure as it is a

complex phenomenon. It seems to have gained currency in the second century of the Hijri

(Islamic era). It developed as an obvious reaction to the growing theological prescriptions of

earning merit (sawab) with God for reward in afterlife. iii However ancient Sufism had strong

ascetic tendencies while the mystical element in it was insignificant.iv

DOCTRINES OF SUFISM

The Sufis admire God in everything and it can very well be asserted that the basis of Sufism

is essentially universal. It is not a sectarian religion outside the pale of Islam but it differs

from orthodox Islam in its attitude towards God and the problems of life. The Sufis seek to

explore the spiritual world not through the cold formalism of the Law (Shariat) but through

the warm mystic path of way (Tariqah) of yearning after and coming into union (wasl) and

fellowship with God. In fact we can say that if mysticism deals with inner and emotional

life of man than Sufism seeks to give a mystic interpretation to Islam. According to the

Islamic theory Sufism was born in the bosom of Islam. Louis Massignon, the French

orientalist and R.A. Nicholson and Arberry the two British scholars are of the opinion that

Sufism is essentially Islamic, the Quran and the Hadith supplying its basic framework. But it

would be historically incorrect to claim that Sufism was not influenced by foreign ideology

or element. Mysticism was prevalent among different peoples before the advent of Islam-

the Chinese, the Jews, the Persians, the Greeks and the Indians. So with the expansion of


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Islam in the different parts of the globe Sufism or Islamic mysticism came to adopt various

forms.v Dr. Tarachand aptly remarks, ‚Sufism is a complex phenomenon. It is like a stream

which gathers volume by the joining of tributaries from lands. Its original source is the

Quran and the life of Muhammad. Christianity and neo-Platonism swelled it by a large

contribution. Hinduism and Buddhism supplied a number of ideas and the religion of

ancient Persian Zoroastrianism brought to it its share.‛ vi On other hand some scholars

believe that although some concepts such as nirvana or bhakti may have been transmitted

to the Arab world from Sind but the positive evidence for it still remains tenuous.vii

Sufism has produced some of the most loveable men and women of God. One of the

earliest Sufi mystic was a woman Rabia of Basra (717-801A.D.) who has inspired a number of

later Sufis. She laid emphasis on love of God (ishq) as the only valid reason of obeying Him.

The logical corollary of this absorption in love towards God was the rejection of Paradise as

the goal of ethical endeavour and its replacement by an aspiration for annihilation (fana),

the elimination of self through the attainment of an absolute union with God. In fact when

Mansur bin Hallaj proclaimed Anal-Haq (I am Truth) he was merely expressing the Sufi

belief that unification with God was the highest stage of enlightenment. But he was arrested

on the charge of heresy and on his refusal to recant was executed (10th century).

The philosophical ideas and the doctrines of Sufism were formulated between the 10 and

the 12th century, the rise of various schools or silsilahs was complete and the organization of

the Khanqahs or hospices had been established. Some of the Sufis also supported musical

gatherings (sama) in which a state of ecstasy was created but this was again frowned upon

by the orthodox ulema. Al- Ghazali (d. 1112) helped in many ways to reconcile mysticism

with Islamic orthodoxy.

SUFISM IN INDIA AND ITS SYNCRETISTIC ROLE

There are three distinct phases in which the Muslim incursion took place in the Indian sub-

continent. The first phase is the conquest of Sind and Multan in 712 A.D. by Muhammad bin

Qasim a lieutenant of Hajjaj bin Yusuf, the viceroy of the eastern province of the Umayyad


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Caliphate. This conquest did not produce any long term impact. In the second phase the

Yamini Sultans, Amir Sabuktagin and his son Sultan Mahmud repeatedly invaded the

Indian sub continent in the 11th century and the latter in particular penetrated deep into the

sub-continent invading as far as Kanauj in the East and Somnath in Gujarat in the South.

The third phase started with the Battle of Tarain (1191) and led to the establishment of

Turkish rule in India with Delhi as the capital. It was in the third phase that a number of

Sufi saints arrived and settled in India.

The earliest name of the Sufi saint that we come across in India is Ali Hujwiri (d. 1071). In

fact the Sufis by this time were divided into a number of schools or silsilahs. Abul fazl in his

Ain-i-Akbari lists fourteen silsilahs. Some of which are Habibe, Zaidi, Baghdadi, Chishti,

Tusi, Firdausi, Suhrawardi and Shattari. However the two most influential orders were the

Chishti and the shurawardi centered at Delhi and Multan respectively. The Chishti order

was founded by Khwaja Abdal Chishti in Herat and brought to India by Khwaja Moinuddin

Chishti (1141-1236) who came to India in 1192 and settled around Ajmer. The most famous

Chishti Sufis included Nizamuddin Auliya of Delhi and Nasiruddin Chirag Delhi. On the

other hand the Suhrawardi order was founded by Shaikh Shihabuddin Suhrawardi but the

real founder of the order in India was Shaikh Bahauddin Zakariya.

These Sufi saints played an important role in bringing about a

rapprochement between the Hindus and the Muslims. In fact the Sufi saint adopted many

Hindu practices and were messengers of religious syncreticism. Historians observe that

there are many apparent similarities between Hindu thought and Sufism in Islam especially

in its developed form. Al- Beruni (c.973-1048) remarked that the Sufi theories of soul were

similar to those in Patanjali’s Yoga Sutra. He also identifies the Sufi doctrine of divine love

as self-annihilation with parallel passages from the Bhagavad Gita.viii

By the thirteenth century the Indian Sufis were confronted with

the Kanpatha (split-eared) yogis or the Nath followers of Gorakhnath. The Yogic Natha cult

was compound of Patanjalis Yoga doctrines, Buddhist and Hindu Tantricism, Saiva agama

doctrines and the principles of the Hindu science of alchemy (rasayana). Siva (Adi Natha)


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was considered as its legendary founder and Matsayendranatha as its first human preceptor.

However it was Gorakhnath ix , the successor of Matsayendra who built a dynamic

organization and philosophy through treatises and poems.

Renowned Sufis of the Chishti, Firdausi and the shattari orders freely associated with

the Natha Yogis. Shaikh Nasiruddin Chiragh Delhi observed that controlled breathing is the

essence of Sufism. He urged practising articulated breathing like the Yogis and gradually

yogic postures and controlled breathing became an integral part of Chishtiyya Sufi practise.

Some Sufis also adopted the practise of growing their hair long like the Yogis.x The Nath

doctrines had great influence on the Chishti Sufi Shaikh Abdul Quddus Gangohi. His Hindi

nom de plume was Alakh (Imperceptible). He described Gorakhnath not as a person but an

Absolute Being, a Perfect Man (one who realised oneness with God).xi

The Nath ideas found great popularity in fifteenth century Bengal. The

Amritakunda, a text on Hatha Yoga, was first translated into Arabic in Bengal in the early

thirteenth century. A converted Tantric Brahman, Bhojar Brahman or Bajra Brahma helped

Qazi Rukunuddin Samarqandi, Imam and chief Qazi of Lakhnauti to translate it into Arabic

and Persian (Hauz ul Hayat).xii Sayyid Sultan of Chittagong also composed a number of

Bengali works on Muslim themes of absorption into God with Yogic and Hindu overtones.

The Natha Siddhas ‘Conception of Ultimate Reality’ resembled the Sufi concept of Unity of

Being (Wahadat ul Wajud) explained by Persian Sufi poets like Attar (c. 1142-1220),

Jalaluddin Rumi (1207-73), Shabistari (d. 1320) and Jami (1414-92). Sufis like the Vedantists

strongly believe in the philosophy that all is one and one is all. In fact the theses of the

higher Vedanta and that of Rumi’s doctrine of the Unity of Being is essentially one and the

same thing.

The Hindu mystic tradition typified by Vaishanavism influenced Sufism especially with

regard to the relation between God and Man. Ibn ul Arabi’s symbolism of love hardly

differed from the poems on Radha- Krishna love. A sixteenth century Sufi saint Shaikh

Abdul Sahid Wahid Bilgrami (1510-1608) compiled a Persian dictionary Haqa’iq-i- Hindi

which was intended to crush orthodox opposition to the use of Vaishnavite themes in the


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Hindi poetry recited by the Chishtiyya Sufis to arouse ecstasy. The dictionary also showed

the relevance of the Symbolic poetry of Vaishnava mysticism to Islamxiii.

The cross-fertilization of Sufi beliefs with those expressed by the

Kashmiri Saivite woman Yogi Lalla is reflected in the Rishi movement of Shaikh Nuruddin

(d. 1439) of Kashmir. The Shaikh’s teachings are embodied in his Kashmiri verses

some of which are almost identical with those composed by Lalla. Shaikh Nuruddin and his

disciples preferred to call themselves Rishis, using the well-known term for the Hindu

sages, not Sufis. The Sufis in India also absorbed the idea of pacifism and non-violence

peculiar to Hinduism, Buddhism and Jainism. Shaikh Nuruddin believed that, although

eating meat was permitted by the Shari’a, it entailed cruelty to animals, and became a

vegetarian.xiv

In the Sufistic system an important concept is that of pir-i-muridi

which is very similar and closely analogous to the Hindu Guru-chela relationship. Orthodox

Islam does not allows for any intermediary between the creator and the created but to the

Sufi the importance of the Pir in the life of a disciple in his quest for the Ultimate Reality is

as great as that of the Guru or Acharya in the Hindu social and religious system. In fact by

the sixteenth or and the seventeenth it was very common for the majority of the practising-

Muslims in India to have a Pir, often linked with some Sufi order or the other, like the

Hindus seeking the guidance of the Guru for spiritual salvation.xv

Arnold Nicholson was convinced that the idea of Fana (self-annihilation passing away into

the universal Being) is certainly of Indian origin, probably derived from the Buddhist

concept of Nirvana. xvi The German scholar Richard Hartmann opined that Sufism is

inwardly permeated with Indian theosophy. R.C. Zaehner, Spalding Professor at Oxford

University, after examining this aspect critically came to the conclusion that Sufism is

Vedanta in Muslim Dress.xvii He believes that some fundamental tenets of Sufism about the

Absolute or the God and the relation of individual Souls to it were possibly derived from the

ideas of Vedanta of Sankara.


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The Hindu mystic tradition typified by Vaishnavism also greatly influenced

Sufism. In Islam the relation between Man and God is like that of Master and Slave but in

Vaishnavism it is considered to be between the Lover and the Beloved. In Sufism the

relation between Man and God is considered to be that between Ashik and Mashuk which is

more influenced by Hinduism rather than Islam.xviii So we can safely say that Sufism has

undergone sea-changes. Hence Sufism is Indianism in Indian context.

A Sufi order which emerged in and around Delhi and preached the doctrine

of Wahadat-ul- Wajud was the Qadriyya order. A renowned Sufi of the order was Mulla Shah

who settled down in India in 1614-15. His most controversial work is a commentary on

Quran which he composed in 1647-8. Defining the infidel he wrote:

Oh believer! The infidel who has perceived the Reality and recognized it is a believer.

Conversely the believer who has not perceived the Reality and has not recognized it is an

infidel.

In 1639-40 both Prince Dara Shukoh and his sister Jahan Ara became the disciples of Mulla

Shah. Dara Shukoh also wrote a number of Sufi treatises. His most significant work was the

Majma-ul- Bahrayn (The Mingling of Two Oceans) in which by comparing the Islamic Sufi

concepts and terminology he proved that they were identical. Dara’s most important

contribution was the Persian translation of the Upanishads which he believed contained

subtle hints relating to the Wahadat-ul- Wajud doctrines.xix

Thus, the Sufis by their simplicity, tolerance and strength of character

helped in bringing about a rapprochement between the Hindus and Muslims. They opened

the doors of their Khanqah to all irrespective of their religious beliefs, their attitude of

benevolence to all and their association with the Hindu Yogis and using Hindavi in their

conversation created an atmosphere of greater interaction between the two major

communities. The Sufis helped in creating an atmosphere in which the social and religious

life of the Muslims came to be profoundly influenced by Hinduism and marked by

interpenetration of many local manners and customs of the Hindus and the incorporation


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of certain beliefs and ceremonies which were inconsistent with orthodox Islam. So great was

the assimilation that the Hidayat-ul- Mominin, a Sayyid Ahamadi treatise of the early

nineteenth century observes that in India more than in any country Islam and Kufr had

been mixed up like khichri. In fact the Islam that was practised in India and more

particularly in Bengal was so very different from orthodox Islam that Jagadish Narayan

Sarkar has called it ‘Popular Islam’xx

However the nineteenth century saw the growth of Islamic revivalism which

sought to restore Islam to its pristine form by purging it of many deviations which had crept

in. It first began in Arabia under the leadership of Abdul Wahab and later spread to India

under the leadership of Shah Walliullah. It aimed to reject all innovations (bidat) which had

crept since the time of Prophet Muhammad. Groups such as Tariqah-i –Muhammadia and

Ahl-e-Hadis considered the relationship between the pir and murid which is the essence of

Islam as sinful and against the tenets of orthodox Islam.

RELEVANCE OF SUFISM IN MODERN INDIA

Whatever might have been the origin of Sufism outside India it was profoundly

transformed in India by various influences that were operative in various spheres of life

such as religious, philosophical, intellectual, ideological and even aesthetics. So it can be

safely asserted that liberal Islam as represented by Sufism detached from the more

orthodox Islam raised a new voice in Medieval India. Islamic mysticism moulded by the

Sufis became all inclusive and herein lays its present-day relevance. In an age that perceives

growth of extremist fundamentalism in Hindu and Muslim communities, the teachings of

these Sufis are of utmost importance to maintain the liberal, multi-cultural and secular

nature of religious policy and polity to maintain unity and integrity of India. After all, the

Constitution of India is the policy choice on the part of us- the people of India- and WE, THE

PEOPLE OF INDIA, include all of us Hindus, Muslims, etc. Sufism resembles secular

mysticism of the medieval Bengal renaissance propounded by Sri Chaitanya who was perhaps

the first ever preacher of secularism much before adherence of the Occident toward

secularism during the Western renaissance. An emergent need of this turbulent hour,


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therefore, is introspection and action toward positing such indigenous essence of secularism

as replacement of foreign secularism in modern India. The official religious policy in so

called ‘Secular’ India requires review vis-a-vis essence of the term.

REFERENCE

i P.K. Hitti, History of the Arabs, London 1961. P.60. ii P.K. Hitti, Ibid. P.90. iii Irfan Habib, Ed, Religion in Indian History, New Delhi, 2007, p.XXV. iv P.N. Ojha, Aspects of Medieval Indian Society and Culture, New Delhi, 1978, p.40. v Jagadish Narayan Sarkar, A study of Sufism and its Syncretistic Significance in Medieval India, Indo-Iranica,

Vol.38, Nos 1&2, pp. 1-2. vi Tarachand, Influence of Islam on Indian Culture, Allahabad, 1976, pp. 63-64. vii Irfan Habib, op. Cit., p. XXVI. viii Al-Beruni, tr. Edward Sachau, Al-Beruni’s India, I, [London 1887; Delhi, 1964 (reprint)] p.55. ix Gorakhnath’s philosophy is neither advaita (monism) nor dvaita (dualism). It is Dvaita-advaita vilakshana –

vada. He accepts the Upanishadic and Vedantic view of the individual atman (self) with Absolute spirit but

does not consider the cosmic order illusory. x S.A.A. Rizvi, A History of Sufism in India, vol. I, (Delhi, 1978) p.143. xi Ibid, I, pp. 339-40. xii The importance of the book is illustrated by the fact that the famous Shattari saint Shaikh Md. Ghaus

retranslated it. xiii The dictionary was translated into Hindi by S.A.A. Rizvi, Nagri Pracharini Sabha, 1957, pp. 29-42. xiv S.A.A. Rizvi, op. Cit., pp. 350-1. xv M.W. Mirza in R.C. Majumdar (ed.) Mughal Empire. xvi R.A. Nicholson, Studies in Islamic Mysticism, (Cambridge, 1967). xvii R.C. Zaehner, Hindu and Muslim Mysticism, (London, 1960). xviii Jagadish Narayan Sarkar, Thoughts on Trends of Cultural Contacts in Medieval India, (Calcutta, 1984)

pp.116-163. xix S.A.A. Rizvi, A History of Sufism in India, Vol. II, (Delhi, 1982) pp.413-24. xxJagadish Narayan Sarkar, Islam in Bengal, (Calcutta, 1972).


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MOST FAVOURED NATION TREATMENT

NIDHI CHAUHAN

INTRODUCTION:

International rules on international trade in goods and services, i.e. international trade law,

constitute the core of international economic law which covers all those international rules

pertaining to economic transactions and relations, as well as, those pertaining to

governmental regulation of economic matters. i International trade law consists of

numerous bilateral or regional trade agreement and multilateral trade agreements. The

most important of all multilateral trade agreement is the WTO Agreement ii. The law of

WTO is a complex set of rules dealing with trade in goods and services and protection of

intellectual property rights. It addresses issues relating to tariffs, import quotas, customs

formalities, food safety regulations and national security measures.iii WTO is the centre of

the multilateral trading system which is important tool of global economic management

and development. iv There are certain basic rules and principles of the WTO law among

which the principles of non-discrimination hold important position.

NON-DISCRIMINATION AND MFN TREATMENT

Non – Discrimination is the key concept in International Trade Law. It is one of the core

principles of WTO Law. The two most important principles of non-discrimination in the

WTO law are Most Favoured Nation (MFN) obligationv and National Treatment obligationvi.

The MFN principle is one of the oldest legal obligations in the area of international trade

law.vii It became common feature of many friendship, commerce and navigation treaties

during the eighteenth and nineteenth centuries.viii The MFN principle means that a country

must treat other countries at least as well as it treats the ‘most favoured’ country.ix Simply

illustrated, if India imposes a 5 percent tariff on USA mobile imports, it cannot charge 10

per cent on mobile imports from China or other trading partners, but rather must give these

others the 5 percent rate as well. The result of a nation being a beneficiary of an MFN clause

is that that nation can comb all of the treaties and all of the actual treatment is more


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favorable than that granted to it- in which case, the beneficiary can argue that such better

treatment is owed to it.x

Article I of the General Agreement on Tariffs and Trade, 1994 (GATT) incorporates the

Most Favoured Nation principle. The Most Favoured Nation (‘MFN’) principle is one of the

oldest and most important legal obligations in the area of international economic law. The

term itself may be somewhat confusing, as it has been mistakenly construed as indicating

that there is a country or countries that are the ‘most favoured’.xi However, the principle is

actually a straightforward non-discrimination requirement. It plays an important role in

trade negotiations. In the earliest trade negotiations, when two countries exchanged mutual

tariff concessions, there was some debate as to the circumstances under which other

countries would also benefit from the lower tariff. There were two very different approaches

taken to MFN when negotiating these tariff concessions. One view was that tariff

concessions made to one country in a particular trade agreement would apply generally to

all other countries as well. The competing view was that concessions in one agreement

would only apply to other countries if these other countries offered their own concessions in

return. The former was known as ‘unconditional’ in the sense that no conditions were placed

on granting concessions to other countries. That is, recipient countries need not give

anything in return. The latter was known as ‘conditional’ MFN. It was ‘conditional’ in the

sense that tariff concessions were granted to other countries only on the condition that they

offered compensation in the form of their own concessions. The United States pursued a

‚conditional MFN‛ policy prior to World War I, although by that time many major nations

had moved to an unconditional approach. The United States, for its part, changed to an

unconditional policy in 1923.xii

One question that has been debated is whether any sort of MFN or economic non-

discrimination obligation independent of a treaty clause exists under customary

international law. The prevailing view of scholars is that such an obligation exists only when

a treaty clause creates it. Lacking a treaty, nations presumably have the sovereign right to

discriminate against foreign nations in economic affairs as much as they wish.


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The Dispute Settlement Body of WTO has time and again held that the MFN principle set

out in Article I of the GATT is a ‘cornerstone of the GATT’ and ‘one of the pillars of the

WTO trading system’.xiii It is well recognised that MFN principle has been both central and

essential to assuring the success of a global rules based system for trade in goods.xiv The

principal purpose of the MFN principle under the GATT 1994 is to ensure equality of

opportunity to import from, or to export to, all WTO Members.xv Article I of the GATT 1994

prohibits discrimination between like products originating in, or destined for, different

countries. xvi The prohibition of discrimination serves as an incentive for concessions

negotiated reciprocally to be extended to all other members of WTO on a MFN basis.xvii The

hallmark of MFN obligation is reciprocity and non discrimination.xviii

With regard to the MFN Treatment required, the Article I of the GATT states: any

advantage, favour, privilege or immunity granted by any Member to any product

originating in or destined for any other country shall be accorded immediately and

unconditionally to the like product originating in or destined for the territories of all other

Members.

Thus, an ‘advantage, favour, privilege or immunity’ granted to products of one Member

‘shall be accorded immediately and unconditionally’ to the ‘like product’ imported from

other Members or exported to other Members. That is, treatment offered to any country xix

must be provided to Member as well. The essence of the MFN obligation is that like

products should be treated equally, irrespective of their origin.xx

Main issues arising in relation to MFN treatment under Article I of the GATT are:

1. Whether the products concerned are ‘like products’

2. Whether any advantage, favour, privilege or immunity accorded to any country

3. Whether the advantage is granted immediately and unconditionally to all other

Members

Like Products

MFN treatment obligation under Article I of the GATT applies only between ‘like products’.

The products that are not ‘like’ may be treated differently with respect to tariffs. The


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dictionary meaning of ‘like’ suggests that ‘like products’ are products that share a number of

identical or similar characteristics.xxi The question of ‘like products’ generally arises in MFN

cases when a government measure makes a distinction between two products, rather than

between specific countries, under which one product receives better treatment, such as

lower tariff rate.xxii The bulk of dispute settlement proceedings brought under Article I of

the GATT have turned on the interpretation of ‘like products’. xxiii If imports from two

countries are like products, then those imports are entitled to identical treatment regardless

of their country of origin.xxiv

With regards to the concept of like products, there are three questions of interpretations

which need to be resolved: (a) Which characteristics or qualities are important in assessing

‘likeness’; (b) To what degree or extent must products share qualities or characteristics in

order to be ‘like products’; (c) From whose perspective ‘likeness’ should be judged.xxv

In Spain - Unroasted Coffee, while examining whether various types of unroasted coffee

were ‘like products’ to which the MFN treatment obligation applies, the Panel considered

the characteristics of the products, their end-use and tariff regimes of other Members.xxvi The

panel found that the differences put forward regarding the different types of coffee-

geographical factors, cultivation methods, processing and genetic factors- were sufficient to

allow for different tariff treatment.xxvii It also said that coffee ‘in its end-use, was universally

regarded as a well-defined and single product intended for drinking’. Apart from these, the

consumers’ tastes and habits may be considered by the WTO Panel while examining

whether products are ‘like’ within the meaning of Article I of the GATT.

1. ADVANTAGE, FAVOUR, PRIVILEGE OR IMMUNITY

Any advantage, favour, privilege or immunity under the MFN treatment obligation is

concerned with respect to:xxviii customs duties; charges of any kind imposed on importation

or exportationxxix; charges of any kind in connection with importation or exportation xxx;

charges imposed on the international transfer of payments for imports or exports; method

of levying such duties and charges xxxi ; all rules and formalities in connection with

importation and exportation; internal taxes or other internal charges xxxii ; and laws,

regulations and requirements affecting internal sale, offering for sale, purchase,


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transportation, distribution or use of any productxxxiii. The MFN treatment under Article I of

the GATT requires that any advantage granted by a Member to any product from or for

another country be granted to all like products from or for all other Members.xxxiv

In EEC – Imports of Beef from Canada, the Panel examined the compatibility of EEC

regulations implementing a levy free tariff quota for high quality grain-fed beef where the

regulation made suspension of the import levy for such beef conditional on production of a

certificate of authenticity. The Panel observed that the only certifying agency authorised to

certify the meat was a United States agency which was mandated to certify only meat from

the United States. The Panel concluded that the regulation is inconsistent with the MFN

principle incorporated in GATT as it had the effect of preventing access to like products

from other origin than the United States.xxxv

2. ADVANTAGE IS GRANTED IMMEDIATELY AND UNCONDITIONALLY

One of the other features of the MFN clause is that it provides for ‘unconditional’ MFN

treatment. That is, when a member binds a tariff rate on a particular product as part of a

negotiating round, that tariff rate applies to all Members. MFN treatment obligation

requires that any advantage granted by a WTO Member to imports from any country must

be granted ‘immediately and unconditionally’ to imports from all other WTO Members.xxxvi

WTO Member, which has granted an advantage to a country, cannot make granting of that

advantage to other WTO Members conditional upon those WTO Members ‘giving

something in return’ or ‘paying’ for the advantage.xxxvii The term ‘unconditionally’ does not

mean that all conditions are prohibited.xxxviii ‘Unconditionally’ refers to the obligation that

MFN treatment towards another WTO Member shall not be conditional on reciprocal

conduct by that other Member.xxxix

In EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain

Processed Fruits and Vegetables, the Panel examined the provision for an exemption from

the lodging of additional security associated with minimum import price for tomato

concentrates in relation to the MFN obligations. The Panel observed that Article 10 of


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Council Regulationxl amounted to conditional most-favoured-nation treatment inconsistent

with Article I:1 of the General Agreement, since it removed one of the requirements for

certain countries while leaving a burden on other countries. The Panel concluded that the

provision for an exemption from the lodging of additional security associated with the

minimum import price for tomato concentrates was not inconsistent with the MFN

obligations.xli

The various benefits of MFN principles are that: it eliminates distortions in production

patterns allowing comparative advantage to work; it results in broader trade liberalisation; it

makes for simple and transparent custom policies; and it reduces international tensions and

thereby spreads peace and security along with trade liberalisation.xlii Also, it secures benefits

of bargain along with ensuring equal access to the export markets;xliii and it engenders free

and fair competition and protects against corruption.xliv

IMPACT OF MFN

According to the comparative advantage theory, MFN makes it possible for countries to

import from most efficient supplier. If China can supply mobiles at a lower price than

Japan, India can increase its economic efficiency by importing mobiles from China.

However, if India applies higher tariff rates to mobiles from China than to mobiles from

Japan, India may be forced to import mobiles from Japan, even though Japan is not as

efficient a supplier. This distorts trade and reduces the welfare of India and economic

efficiency of the entire world. However, if MFN is applied between the three countries, then

India will levy its tariffs equally and therefore necessarily import mobiles from China

because it is cheaper to do so. Thus, the most efficient result is attained. This has resulted in

the improved efficiency in the World Economy. Further, MFN increases predictability in

multilateral trading system by stabilizing the free trade system and thus increases trade and

investment. The reduction in cost of maintaining the Multilateral Trading System is

another implication of MFN.xlv

CONCLUSION

MFN has been a central pillar of trade policy for centuries. Article I of GATT has

established the bench mark of a very broadly worded unconditional MFN obligation with


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respect to trade in goods. MFN principle plays an important role in other areas of WTO

rules as well. Two important principles of ‚non-discrimination‛ are included in GATT and

most international trade policies. The first is that of the MFN principle, expressed in Article

I of GATT and in a number of bilateral and other treaties. Despite some confusion over the

phrase ‚most favoured‛-which seems to imply an especially favourable treatment- the

concept is one of equal treatment, but to other party which is most favoured. In the GATT

the MFN obligation calls for each contracting party to grant to every other contracting

party the most favourable treatment that it grants to any country with respect to imports

and exports of products.xlvi Both the GATS and the TRIPS Agreement, two of the major new

areas of regulation developed during the Uruguay Round, contain an MFN provision. xlvii

Also, MFN plays important role in many other agreements.xlviii Overall, it can be said that

the MFN principle plays a significant role under the WTO Law.

It is important to note that the MFN treatment obligation under WTO law is not absolute

and is subject to various exceptions. In spite of many exceptions and deviations from MFN

treatment obligation, the MFN treatment obligation is one of the most important rules in

WTO law.xlix Without this rule the multilateral trading system could and would not exist. l

REFERENCE

i Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2nd Edition, Cambridge University Press,

Cambridge, p.36

ii Marrakesh Agreement Establishing the World Trade Organization

iii Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2nd Edition, Cambridge University Press,

Cambridge, p. 37

iv P.Sutherland et al, Challenges Facing the WTO and Policies to Address Global Governance, United Nations

University Press, 2001, p. 81

v Prohibits a country from discriminating between other countries

vi Prohibits a country from discriminating against other countries

vii MFN treatment clauses can be traced back to the twelfth century

viii United Nations Conference On Trade And Development: Most-Favoured-Nation Treatment,

UNCTAD/DIAE/IA/2010/1

ix Simon Lester et al, World Trade Law, 2010, 1st Indian Reprint, Universal Law Publishing Co., Delhi, p. 322


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x See, John H. Jackson, World Trade and the Law of GATT, p. 225

xi In US domestic law, the term has now been officially replaced by ‘normal trade relations’ in order to clarify

the policy behind it. See, eg, US Bill, S. 747, ‘To amend trade laws and related provisions to clarify the

designation of normal trade relations’

xii See The Most Favoured Nation Provision, Executive Branch GATT study, No. 9, 93rd Cong., 2nd Sess. 1974, I

xiii Appellate Body Report, EC – Tariff Preferences, para. 101

xiv Id.

xv Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2nd Edition, Cambridge University Press,

Cambridge, p. 324

xvi Appellate Body Report, Canada – Autos, para. 84

xvii Id.

xviii Kevin C. Kennedy, International Trade Regulation, 2009, Wolters Kluwer Law & Business, Aspen

Publishers, New York, p. 89

xix Irrespective of the fact that the country is Member of WTO

xx Appellate Body Report, EC – Bananas, para. 190

xxi Appellate Body Report, EC – Asbestos, para. 91

xxii The issue of ‘like’ product is merely a formality in cases where the products are agreed to be the same in

various Members, and the real issue is whether the advantage, etc had been ‘accorded’ to all members.

xxiii Kevin C. Kennedy, International Trade Regulation, 2009, Wolters Kluwer Law & Business, Aspen

Publishers, New York, p. 91

xxiv Id.

xxv Id., para. 92

xxvi GATT Panel Report, Spain – Unroasted Coffee, para. 4

xxvii Id.

xxviii Article I of the GATT

xxix eg., import surcharges or consular taxes

xxx eg., customs fee or quality inspection fees

xxxi eg., method of assessing base value on which the duty or charge is levied

xxxii Referred to in Article III:2 of the GATT

xxxiii Referred to in Article III:4 of the GATT

xxxiv Appellate Body Report, Canada – Autos, para.79

xxxv GATT Panel Report, EEC – Imports of Beef from Canada, para.4

xxxvi Also, any advantage granted by a WTO Member to exports to any country must be accorded ‘immediately

and unconditionally to exports to all other WTO Members.


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xxxvii Working Party Report on the Accession of Hungary, L/3889, adopted on 30 July 1973, BISD 20S/34, para.

12

xxxviii Panel Report, Canada – Autos, para. 10

xxxix Id.

xl Council Regulation (EEC) No. 516/77: Article 10 – ‘lodging of such additional security shall not be required

for products originating in non-member countries which undertake, and are in a position, to guarantee that

the price on import into the Community shall be not less than the minimum price for the product in question,

and that all deflection of trade will be avoided.’

xli GATT Panel Report, EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain

Processed Fruits and Vegetables, para. 4

xlii Simon Lester et al, World Trade Law, 2010, 1st Indian Reprint, Universal Law Publishing Co., Delhi, p. 324

xliii Raj Bhala, International Trade Law: Theory and Practice, 2001, 2nd Edition, Lexis Publishing

xliv A.K.Koul, Guide to the WTO and GATT, 2012, 3rd Edition, Satyam Law International, Delhi, p. 83

xlv MFN enables WTO Members to reduce their monitoring and negotiation cost for disadvantageous

treatment. Also, it reduces cost of determining an import’s origin, thereby increasing economic efficiency.

xlvi John H. Jackson, The World Trading System- Law and policy of International Economic Relations, 2nd

Edn.,Satyam Books, New Delhi, 2012, p. 156

xlvii Simon Lester et al, World Trade Law, 2010, 1st Indian Reprint, Universal Law Publishing Co., Delhi, p. 338

xlviii Id.

xlix Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2nd Edition, Cambridge University Press,

Cambridge, p. 38

l Id.


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PERILS OF A FRAGILE PLANET: SHIFTING

PARADIGMS AND SENSITIVE POSSIBILITIES

TAPAN R. MOHANTY

Global environmental issues are a growing concern among the people and communities of

various regions today. As it is the changing ecological base which will ultimately affect

them as they seek to exploit the available resources in order to raise their standard of living.

The challenge is not so much that of improving the quality of life of the population at the

cost of their standard of their living - a dilemma faced in particular by the developed

countries - but rather to improve the standard of living in an environmentally sustainable

manner. This involves recognition of the fact that alternation in the human and natural

environment are underlining factors in the development process so that the topic of the

environment cannot be absent from the minds of those who are responsible for guiding that

process.

The rational arrangement of the natural resources is a necessary precondition for

achieving economic growth and sustainable improvements in the standard of living of the

populace. The natural capital is of fundamental importance in achieving changing

production patterns with equity. The nation has entered upon a stage in which the existing

resources will soon threaten the process of development. India now is on the threshold of a

number of environmental problems, which, if not solved, will adversely affect the

productive capacity of the economy. India as an agrarian country producing agricultural

goods heavily depends on the management of natural resources such as soil, water,

vegetation and the climate. These elements are already beginning to suffer from

considerable strains, which are having a negative effect on the quality and quantity of

agricultural products. The relation between growth, equity and environmental sustainability

are extremely complex. On the one hand, the transformation of natural resources into

goods is essential for growth and the raising of living standards. Thus, for example, the


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expansion of the water supply is what makes it possible for growth of human settlements.

On the other hand, however, there is the danger of development processes affecting the

quality of the environment. For example, air and water pollution due to industrialization

and concomitant social and economic change reduces the capacity of ecosystems to provide

the community with vital goods and services. The theory of sustainable development deals

with these issues and consequent changing of priorities at length.

Most observers would agree on many of the symptoms of malaise in the world and

unanimously believe that these have not appeared overnight, but have been accumulated

over decades. Unemployment, poverty, alienation and self-abuse of many a varieties form

the beginning the possible list of symptoms, symptoms that have lead many people argue

that a fundamental change in our ways of life is long overdue.

The present ways of life are indeed liable to change in near future. The problems in

many cases are routed in our faulty socio-economic practices and in some cases change is

promoted to make life more healthy and fulfilling. Advancement of new technologies has

ensured the reshaping work and leisure particularly in developed countries. These are in

industrial societies, while the ‚Third World‛ proved to be a ‚victim of economic

colonization‛ by the erstwhile colonial powers to perpetuate their imperialist designs. This

realization has accelerated a process of global transformation.

The reason of this change may be attributed to ‚affluence‛ of developed and

‚continuity‛ poverty for the underdeveloped. The study here focuses on the perspective of

the Third World. The model of development, which focuses on economic growth, has failed

on account of redistribution. Increase of poverty, continuity of hunger, lack of housing and

sanitary facilities compelled the third world nations to look for an alternative beyond the

paradigm of development.

GREY AREAS IN CONVENTIONAL DEVELOPMENT PARADIGMS

The 1970’s became the decade, which increasingly questioned the assumption that

growth and industrialization would solve the problems of poverty and want. During that


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decade, focus was on the needs of the population in general and the need of the poorest in

particular. To quote Robert McNamara, ‚ the task, then for the government of the

developing nations is to reorient their development policies in order to attack directly the

personal property of the most deprived 40 percent of their population. This government can

do without abandoning their goals of vigorous overall economic growth. But they must be

prepared to give greater priority to established growth targets in terms of essential human

needs: in terms of – housing, nutrition, health and employment….‛ i.The analysis and report

of international labour organization (ILO) and World Bank (WB) gave particular dimension

to development by emphasizing ‚ redistribution with growth‛. In this background Mahabub

Ul Haq had written 1976 that there are several areas of agreement in the debate o

development strategies. He summarizes the arguments as follows:

First it is generally accepted by now that market mechanisms are neither efficient

nor reliable instruments for allocating resources when the income distribution is very

distorted… A related area of agreement is the realization that the institutional reforms are

often more decisive for a developing country than marginal changes in the price system.

There is no longer a blind faith in price corrections achieving a multiplicity of objectives…

Second there is an increasing realization that economic growth does not filter down

automatically to the mass except in the modern sector in a very high rate of G.N.P growth…

Third, most developing societies realizes by now that they cannot emulate the

consumption style of the rich nations….thus, there is greater interest in the concept of basic

human needs and in fashioning development strategies which are need oriented, rather

than market demand oriented.

Fourth there is also an agreement that the economic condition of the poorest sections

cannot be improved simply by distributing some purchasing power to them through short-

lived welfare schemes. Any long-term improvement requires…fundamental institutional

reform….


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Fifth there is also a widespread realization that development strategies should be

shaped by domestic needs and not by export or foreign assistance requirements.

These general agreements on development reflect the bottlenecks in the contemporary

development strategies. However, the most stringent criticism against development is its

complete ignorance of two important dimensions namely, culture and environment.

Development has analytically a wider frame of reference if it is understood within

the design of the culture concept. The culture concept unites more and provides multi

dimensionally to the notion of development because it encapsulates history and socio-

economic parameters of life. Culture sums up the human creation, as generally

transformed altered phenomenon. An evolutionary and revolutionary process of change,

influence both by internal and external conditions. It appropriates conceptually both

material and non-material spheres of social production, and summarizes the totality of the

material representations of human creativity, while vesting permanence and continuity to

the institutional forms of social life defined by language, religion, mores and customary

practices. Thus cultures provide men with their intellectual bearings in the production and

reproduction of social life. Few concepts have the universality of culture concept. In the

vastness of the catchment area, it affords a good measure of the idea of development. To

which it defines as ‚the enrichment of material base of culture. The evolution and material

base of culture as well as transformation is exercised developmentally and validated by

extent to which development options offer greater and more effective control and means of

control over the material or natural environment.ii

Even if the culture is conceived in a narrower and often more colloquial sense, it is

difficult to rationalize development in economic and infrastructural dimensions without

such development being evidenced in area of collective social life and usage such as music,

literature and dance which are crucial to flowering of the above areas to draw on the

interest of the wider society.


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Mohapatra (1994) argues that in the age of rapid economic growth and technological

advancement culture has taken a back seat and constraint to make adjustment. This path of

adjustment has taken all leanings and curves resulting dilution, distortion and death of

cultural forms.iii

Dove (1998) also echoes the same sentiment in his studies of Indonesian society.

According to him ‚traditional cultures and life styles are regarded as clear signs of under

development and as formidable obstacles to the necessary socio-economic advancement.iv

The dimension of gender is too neglected in the paradigm of development. Female

subordination of all interpersonal relations is deeply ingrained in the consciousness of both

sexes. This creates a fissure among the units of society and the recent movements like eco-

feminism is the logical outcome of genuine outburst against a repressive social order.

Another important aspect, which has been bypassed in the drive to development, is

the shabby treatment meted out to nature in general and environment in particular. In the

name of industrialization forests were destroyed, mining and quarrying went unabated

causing enormous damage to mountains and springs, toxic and harmful effluents were

drained to the water bodies without giving a second thought. Huge dams and massive

reservoirs were constructed in order to tame the rivers and generate hydroelectric power.

This has not only altered the ecological balance of the area but also changed the socio-

economic bases of the population besides causing large-scale displacement. The design of

development has created major problems not only in terms of environmental degradation

but also in terms of human suffering.

This has in fact give rise to the quest of searching for an alternative design of

development, which will not only improve the standard of living and life chances but also

arrests the by-products of contemporary development strategy. Then comes the question of

alternatives, its meaning and importance. ‚The alternative is something new and better,

both in the qualitative and quantitative aspect, then the preceding and existing conditions

and state of affairs.v


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The alternative to development was not an accident but the product of continues

search for a strategy that will harmoniously combine nature and culture. The capitalist and

socialist developmental models are designed to perpetuate inequality and imperialism in

the grab of an ideology and their threat to nature is menacing. This was in fact a late

realization on the part of the victim the third world country. The failure of various models

of development in fulfilling the objectives has only hastened the process pf searching an

alternative. Present slogan for ‚sustainable development‛ is in fact a reaction against the

existing models of development and deeply routed in an environmental awareness.

Man’s use and reuse of environmental resources has not only confined to food,

shelter and clothing as the basic needs of life, but also goes much beyond to it. The present

form of use of nature can be defined in terms of exploitation plunder. Today there is hardly

any pocket of land, island, polar region or space left virgin from the scars of human

interference in a bid to realize and translate man’s aspirations and dreams into reality.

Realizing the imminent danger of ignoring the environmental issues there has been

some kind of new awakening and the new world order addressed itself to protect the

environmental cause. How best one can maintain, upgrade and improve the environment

with judicious utilization of the natural treasure is a million dollar question. There has been

a plethora of environmental issues need to be debated and focused. Environmental issue

needs to be debated and focused. Environmental issues is not lies in technical and scientific

arena but enmeshed with social, economic and political fabric besides in the ethos of

humanity.

It was only in the early seventies that the world made an extraordinary rapid

transition in terms of social awareness from capitalist economy to environmental concern

particularly, the mutilation of natural resources and subsequent ecological imbalances.

Administration, monitoring, abatement and maintenance of environment is linked with

certain decision of political nature and legal sanctions. Here exists an urgency to examine

ecological improvements and maintenance in the context of local condition and native

population. It was this awareness on conservation of nature that led to the Stockholm


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conference in 1972, which not only recognised the crisis that environment was facing but

also emphasized that solving these problem is a political issue and could not be left to the

hands of a few environmentalist alone.

The effect of the conference is evident today with the change in the attitude and

perception of third world countries towards environmental problems in these nations went

unnoticed, uncared and unemphasised. Issues relating to environment were then considered

as the domain of the industrialized world.

The catastrophe of Bhopal in 1984 and followed by Chernobyl in 1986 provided a

glimpse of the destructive potential of global environmental hazards. Six years later at Rio

de Janerio in 1992 the earth summit presented a programme for action to avert global

environmental disaster based on the underlying principle of sustainable development.

There has been the ending of the of the cold war, the brake up of the former soviet empire,

the war in the Gulf, which along with the emergence of new-nation states provides an

unique opportunity to give a fresh look at the immediate environmental problem. The

uneasy stability of super powers has been replaced by an increasingly unpredictable world

bur it certainly has delayed the imminent nuclear threat and opened up the possibility of

diverting resources towards more humane concerns than in the horse race of global

domination.

In the advanced western countries public interest in the environment is mounting. In

Eastern Europe and former USSR the emerging evidence of grossly degraded and polluted

areas underlined the urgency of the problem. In the developing countries problem of

deforestation, desertification and resource depletion was also attracting grater attention.

And the long term but apparently inevitable threats of global warming and ozone depletion

also underline the global interest in environmental protection. At regional, national and

global level environmental policy has achieved a higher priority and underwent vigorous

development, the leitmotif of the Bruntland report in 1987, has become the accepted goal of

policy at Rio five years later.


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It soon became clear that optimism must necessarily be qualified. Interests in the

environment, though sustained, were not always translated into action in the face of more

immediate and pressing economic concerns. The crumbling of Soviet empire, persistence of

poverty in the 5third world and the growing recession in the west emphasized the

competing priorities and inherent conflicts in development theory. The eponymous process

of balkanization in areas such as former Yugoslavia threatened to entangle countries in a

serious regional conflict. As the Gulf war has shown. Such conflicts could do serious harm

to sensitive eco-system.vi Overall was the threat of nuclear proliferation, more alarming as

the Soviet nuclear complex was dispersed and which, if not restrained, would pose a far

more dangerous threat to world survival than 5the more published global warming.

However some steps has been taken in order to check global pollution i.e. the international

agreements in the Vienna, Montreal and London in 1985, 1987 and 1990 respectively. These

achievements have led to the banning of Chlorofluorocarbons (CFCs) to protect the ozone

layer and various other agreements designed to restrict the trade in hazardous waste (Basel

convention-1989, Bamko convention-1991 and related environment commission directives).

This process of global negotiations and agreements on environmental problems

culminated at Rio summit which saw the adoption of 27 principles constituting a

declaration on environment and development, the first of which was ‚human beings are at

the center of concerns for sustainable development‛. Over 150 nations signed a framework

convention on climate change to tackle the problem of global warming and also a

convention on biological diversity. By consensus the summit endorsed agenda 21, an 800-

page action programme of follow-up (United Nations). Although the summit had been

proceeded by conflict especially between North and South over the responsibility and

resources Rio produced a number of positive features. It was a process engaging more

governments than even before and the participation of 6,500 non-governmental

organizations and 15,000 participants at their global forum. The involvement of NGOs had

begun at the Bergen conference on sustainable development in 1990. Despite, the failure to

reach agreements on certain issues, notably forests, and USA’s reluctance to enter into

binding targets or to sign Bio diversity Convention, Rio was a global endeavor at


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cooperation in the interest of mutual security. ‚It defined the new international values of

equity and environment, linked them inseparably, and dramatized how powerfully they

affect North-South relations. viiRio should also be seen as stage in a sustain process of

developing policy and securing implementation.

Sustainable development has now passed a threshold of public and political concern

that makes it fully and permanently established as an issue of high priority on the national

and international policy making agenda. Although the environment is on the agenda,

environmental policy making is fraught with uncertainty and conflict, particularly between

North and South.

Sustainable development is the acknowledged subject of most recent development

thinking but little headway appears to have made in terms of a rigorous definition of the

concept. Therefore, not surprisingly, efforts to ‚operationalize‛ sustainable development and

to show how it can be integrated into practical decision-making have been few and

generally unpersuasive. The use of the term ‘development’ rather than ‘economic growth’

implies acceptance of the limitations of the indexes such as Gross National Product (GNP)

to measure the well being of nations. Instead development embraces wider concerns such as

the quality of life, educational attainment, nutritional status, and access to basic freedom

and spiritual welfare.viii

The emphasis on sustainability suggests that what is needed is a policy effort aimed

at making these developmental achievements last well into the future. According to

Winepenny, ‚sustainable development is that which leaves our total patrimony, including

natural environment assets, intact over a particular over a particular period. We should be

able to bequeath to future generations at the same capital, embodying opportunities for

potential welfare, that we currently enjoy.‛ix

Perhaps Repetto gives the best definition of sustainable development. For him

sustainable development is a development strategy that manages all assets, natural

resources, and human resources, as well as financial and physical assets, for increasing long


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term wealth and well-being. Sustainable development as a goal rejects policies and practices

that support current living standards by depleting the productive base, including natural

resources and leaves future generations with poorer prospects and greater risks than our

own.‛

The analysis of this definition depicts that sustainability appears to be accepted as the

mediating term designed to bridge the gulf between ‘developers’ and ‘environmentalists’. Its

beguiling simplicity and apparently self-evident meaning have obscured its inherent

ambiguity. It survival attests to the fact that developmental interests now recognize that

much more serious attention must be paid to incorporating although understanding of

environmental process into project investment calculus, it for no other reason than that

failure to do so, any result in environmental side-effects that carry economic losses.

The notion of sustainability appears most conveniently to the replenishable use of

renewable resources. The aim is to benefit from the advantage provided by such resources

to the point where the rate of ‘take’ equals to the rate of renewal, restoration and

replenishment. So in agriculture the farmer derives fertility from soil equal to the ability of

the soil to supply nutrition. Similarly, the woodsman removes trees or the products at a rate

equal to the regeneration. The fisherman catches marine resources in amounts that are

equivalent to their refurbishment. This begs the question of whether inherent rates of renew

ability can be enhanced through scientific management.

The relation between growth, equity and environmental sustainability are extremely

complex. On the one hand, the transformation of natural resources into goods is essential

for growth and rising of living standards. Thus, for example, the expansion of the water

supply is what makes it possible for growth of human settlements. On the other hand,

however, economic development process affects the quality of the environment. For

example, air and water pollution, which reduces the capacity of ecosystems to provide the

community with vital goods and services.


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Though the paradigm of sustainable development is riddled with contradictions and

conflicts at the conceptual as well as operational level, the much-propagated conflict

between economic development and environmental concerns seem to be less in the light of

socio-ecological attributes like awareness and attitudes. These characteristics are more

crucial in the context of agricultural sustainability in India which s known for its inter and

intra regional and cultural variation. Lack of comprehensive or integral understanding of

these aspects both at the conceptual and operational levels make the question of

agricultural sustainability ambiguous. In this context Reddy in an article argues that the

‚models of sustainable development (i.e. agricultural) which focus on the people as their

primary concern, should not stop at providing them with livelihood alone. The problems of

environment and sustainable agriculture are not limited to fragile resource regions or poor

regions though the nature and degree of problems may vary between agriculturally

developed and backward regions. Unless people’s awareness, attitude and perceptions

towards environment are changed, sustainable agricultural practices as conceived in the

present form appear to be a distant dream. The factors that could change people perception

are literacy, market forces, technologies and institutional changes. Therefore, to

recapitulate, human resource development should occupy the centre stage in the over-all

developmental planning in order to achieve the objective of sustainable agricultural

development. And this should be fostered by state powers by integrating environmental

concerns with markets and promoting efforts towards developing appropriate technologies

which are sustainable economically as well as environmentally and removing interferences

in agrarian structure i.e. land labour and capital markets.

The policies of globalisation and liberalization have ushered new changes in Indian

society particularly economic and environmental dimension, through the structural

adjustment programme. Structural adjustment program is an implicit acknowledge of

unsustainable growth policy of 1980’s, if not in ecological terms but certainly in terms of

fiscal and foreign exchange. However, an alternative was offered to structural adjustment

programme known as needs oriented Economic and Ecological Development. Mohan Rao in

an article has vigorously defended NEED. According to him, the growth strategy currently


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in place is built on faith in trickle down and what may be termed long-run Malthusian

optimism. It does little to address the problem of transition and sustainable economy. While

the prospect of accelerated growth under the strategy is, to say the least, uncertain, it is all

but certain that both inequality and environmental degradation will concern over the years.

Major policy thrusts and institutional restructuring under NEED are designed to promote

equitable outcome and to exploit complimentarily between income gains, employment

growth and environment refurbishment. In the medium terms, equitable growth is green

growth; this only enables us to a faster and less uncertain transition to a sustainable

economy.x

The threat to environment and ecology due to population, poverty, pollution and

indiscriminate industrialization is a hard reality in India. People have begun to realize the

dangers to ecosystem inherent in the development design India has chosen at the behest of

capitalist forces. Alternative to this kind of development has come as a blessing to fill the

gap. There have been some fundamental problems endemic to sustainable development

like transfer of environmental technology; the need for social policy etc. and India has to

decide its future in a development policy, which will encapsulate equity, equality and

excellence. The sooner we will find the alternative is better for the nation as well as for the

world.xiSustainable development as a goal rejects policies and practices that support current

living standards by depleting the productive base, including natural resources and leaves

future xiigenerations with poorer prospects and greater risks than our own."

The analysis of these definitions depicts that sustainability appears to be accepted as

the mediating term designed to bridge the gulf between 'developers' and 'environmentalists'.

Its beguiling simplicity and apparently self-evident meaning have obscured its inherent

ambiguity. Its survival attests to the fact that developmental interests now recognize that

much more serious attention must be paid to incorporating a thorough understanding of

environmental process into project investment calculus, if for no other reason than that

failure to do so, may result in environmental side-effects that carry economic losses. The

notion of sustainability appears most conveniently to the replenishable use of renewable


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resources. The aim is to benefit from the advantages provided by such resources to the

point where the rate of 'take' equals to the rate of renewal, restoration or replenishment. So

in agriculture the farmer derives fertility from soil equal to the ability of the soil to supply

nutrition. Similarly, the woodsman removes trees or the products at a rate equal to the

regeneration. xiii The fisherman catches marine resources in amounts that are equivalent to

their refurbishment. This begs the question of whether inherent rates of renewability can

be enhanced through scientific management.

PRINCIPLES OF SCIENTIFIC MANAGEMENT

1. Knowability: the amount, rate and other characteristics of renewability are

knowable and calculable.

2. Homeostasis: renewable resource systems operate broadly around equilibrium or

can be manipulated to approximate following human intervention. Homeostasis is a

preferential state of nature.

3. Internal bioethics: the act of thinking upon a renewable resource even below some

threshold has implications only for the tightly confined eco-systems that is the resource.

4. External bioethics: utilizing a renewable resource up to the point of sustainable yield

is morally justifiable even though that resource, below in threshold of optimal 'take', may

have other ecological values and function. Sustainable growth is primarily a technical

concept, bounded by formalistic rules of efficiency and administration. Sustainability is a

much broader phenomenon embracing ethical norms pertaining to the survival of living

matter, to the rights of future generation and to institutions responsible for ensuring that

such rights are fully taken into account while formulating polices and actions. The first two

of the four premises of sustainability outlined above, are pertaining to renewability and

homeostasis, apply to the concept of sustainable utilization. The later two, which embrace a

more bioethical perspective with implications for a great variety of rights and obligations,


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impinge more directly on the notion of sustainability. Sustainable utilization is a prior

condition for sustainability, but not a sufficient one. The analysis which follows assert that

sustainable utilization is manageable and politically acceptable because it is safely

ambiguous. Sustainability on the other hand, is politically treacherous since it challenges

the status quo. Paradoxically, the objectives of sustainable utilization can not be met

without incorporating the principles of sustainability hence the confusion of

misunderstanding that has grown up around the sustainability debate should be removed.

It was the Brundtland Commission's publication "Our Common Future" in 1987 that

really put the concept of sustainable development on the international agenda and

highlighted its applicability to the environmental problems in the developing world. The

report recognizes that in most developing countries there is a greater dependence on

natural resources and environment as an input of production and economic growth.

Essentially, development and the environment are complementary, it is not economic

growth per se that is to be rejected but there is a need to search for alternative development

strategies and technologies based on sustaining and expanding the environmental resource

base in the word of the Brundtland Commission.

There has been a growing realization among national governments and multilateral

institutions that it is impossible to separate economic development issues from

environmental issues; many forms of development erode the environmental resources upon

which they must be based, and environmental degradation can undermine economic

development (WCED, 1987, p. 3).

The report reflects the importance of economic efficiency in achieving the goals of

sustainable development but also stresses that the benefits of development must be

distributed equitably. Social equity both within and across generations is a fundamental goal

and prerequisite to achieve sustainable development. In this context poverty is seen as a

major cause and effect of global environmental problems and attempts to deal with

environmental problems will be thwarted unless a broader perspective that encompasses the

factors underlying world poverty and international inequality is adopted. Brundtland


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Commission perceived sustainable development as a strategy to ensure that (development)

meets the needs of the present without compromising the ability of future generations to

meet their needs" (WCED, 1987, p. 8).

Markandya has written extensively on the topic of sustainable development. In a

paper titled as "Criteria for sustainable agricultural development", he suggests a set of

working rules on targets covering equity, resilience and efficiency as a first step in making

the concept operational in the agricultural sector. In working towards these sustainability

targets, three broad areas of action are identified - those of valuation, regulation and

monitoring.

Another area is environmental monitoring which is also fundamental to the pursuit

of policy of sustainable development. Markandya and others stress the need to develop a set

of sustainability indicators that can be used to evaluate performance. However in broad

terms the objectives and premises of sustainable development can be summarized in

following points.

1. Survival of human beings.

2. Survival of all other life forms.

3. Satisfaction of basic human needs.

4. Maintenance of biophysical productivity.

5. Economic efficiency and Growth.

6. Preservation of environmental quality and ecosystem.

7. Inter and intra generational equity.

8. Social Justice.

9. Self-reliance and people's participation.


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10. Stabilization of human population.

11. Promotion of values and ethics.

The emergence of sustainable development in the discourse of development has

raised wide-ranging debate on the issues of environment equity and redistribution of natural

resources. The result is a growing realization about …

Excessive stresses on biophysical environment for short-term gain is ultimately counter

productive, so there is a limit to which productivity can be raised.

Human survival can only be assured by preserving the basic resource base.

3. Even the renewable resources are not perpetual unless prudent management praxis is

followed.

4. Conventional economics does not necessarily indicate the actual status of resource

utilization.

Social justice and equality are prime objectives of any form of development. Quite

naturally they are encapsulated in the premise of sustainable development. Sustainable

development at the central level can be assumed as a process to maximize three goals -

Biophysical, economic and social. From another angle sustainable development can be

depicted as a process of development that operates within a framework confined by the

Biophysical, economic, and social coordinates. To operate within such condition, it is

essential to resort to a process of trade-off, primarily to recognize that there are certain

limits within which development has to be functional. These limits can be broadly

identified as Biophysical and Ethico-social limits. The biophysical limit, which actually

controls the resource availability, resources use and economic viability is due to (i) finitudes,

(ii) entropy, and (iii) complex ecological interdependence (iii) and (iv) resilience-self

ameliorating capacity.

The Ethico - social limit has more to do with the philosophical back drop of a society

including its legal, executive and policy making authorities. Bio- physical conditions differ


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regionally as well as locally hence it requires utmost attention in adopting management

practices. Another point to note is that, although when the biophysical limit is exceeded

then it can be detected from the degraded conditions of land, information is quite

inadequate to anticipate the triggering of degradation. This is one of the serious problems

in natural resource management.

On the one hand, intervention leads to determination on the other hand intervention

is required because the local productivity is perceptibly low to support today's population.

Thus the new development strategy should be sustained amidst various pressures and the

resource management has to be viewed in its totality considering all the available uses and

focusing not on the sustainability of any individual project on sector but on the entire

production system. Analysts and planners have become increasingly concerned about the

futility of maximization of growth rate in ensuring economic equity and social justice.

Growth with justice also can constitute the necessary and sufficient conditions for the

fulfilment of the basic needs of the poor. Therefore, growth-oriented development planning

needs to be replaced by planning for sustainable development. Recent ecological critiques

of development have focused on the impact of development in degrading eco-systems, and

degrading consequently in poverty and deprivation. Because the poor in developing

countries have to depend directly on natural resources like land, water, forest products and

marine life, any exploitation and commercialisation of these resources tend to threaten the

very survival of the poor. This is more so in countries with have predominantly agrarian

social structure. In this context, the basic need approaches of sustainable development open

new vistas to social life.

As science and technology go on enlarging the space for human creativity,

simultaneously, nature and ecology impose restrictions on the extent to which this

creativity could be purposefully utilized to satisfy human desires without jeopardizing their

own future. Since consumption standards and perceptions of 'better life' are culturally

defined, 'sustainable development' then becomes an ideological construct in the sense-that it

requires promotion of values that either encourage or discourage kinds of needs within the


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bounds of ecological possibilities. Some staunch Marxist economists may believe that the

socio-cultural systems are themselves propelled by a set of forces that have their origins in

prices and markets and in other institutions such as the State. In other words, such an

epiphenomenal view could tend to treat culturally defined uses of ecological resources as

basically anchored in political economy. "But sustainability or unsustainability of

development process is essentially a consequence of the interaction between socio-economic

systems and ecological systems. Both are co- evolutionary systems which suggest not only

that they reinforce each other but also that each encounter constraints and impasses that

originate in the other." The notion of sustainable development suggests that the process of

production that functions within a given ecological system must determine the optimum

level at which we should operate.

Some scholars optimistically argue-that ecosystem is autonomous and its residence

provides a safety margin, so that it has capacity to withstand and absorb crisis resulting from

imbalances. Certain modes of environmental management do suggest that every ecosystem

has a certain waste accumulative capacity. Only when the accumulation of effluence goes

beyond this limit then it tends to erode ecological balance. However, just because a certain

type of production or industrial material pollutes the environment that does not render the

entire development process 'unsustainable'. The operational concept of "Sustainable

Development" would therefore, differ in a synchronic and in a diachronic context. In the

short run, it refers to the balance between ecosystem and production system that exploits it

at given point of time. In the long run, it is just to be achieved by a given society where its

production process sustains the needs of present without jeopardizing the future.

Resources of the eco-system are both renewable and non-renewable. And, water,

forests, fish stocks, etc., are renewable and do not get depleted by their exploitation provided

it is within certain limits. The rate at which these resources are replenished periodically is

the limiting factor. The non-renewable resources include fossil fuels and minerals. Their

indiscrete and wanton exploitation by the present generation can lead to depletion of

resources that are not easily sustainable. The coal and fuel crisis in Europe some centuries


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ago is a pointer to the critical dangers inherent in indiscriminate exploitation of non-

renewable resources of the eco-system. Sustainable development then is a process in which

an equilibrium is maintained between utilization of natural resources and environment, the

direction of investment in technological development and institutional change should be in

harmony with one another in a bid to enhance the present as well as the 14as well as future

capabilities of human societies to meet their needs and aspirations as well as to enhance

their quality of life.

The successful operation of sustainable development depends upon interdependent

principles aimed at meeting human needs, maintaining ecological integrity, attaining social

self-determination and establishing social equality. Conventional interpretations of

development either pay too little attention to equality consideration or else assume

inequalities will be explained through economic growth on a scale that would threaten

global ecological integrity and jeopardize future generations. Sustainable development

depends upon a better understanding and satisfaction of non-material human needs in the

developed nations and a reorientation of social and economic policy. Human needs can be

divided into material and non-material needs. Material on basic needs include physical

necessities of life such as adequate food, water and shelter. One of the primary goals of

sustainable development is to raise the standard of15living of the world's poor to a level

where these basic needs are meet. Non-material needs include "quality of life" requirements

such as health, political and spiritual freedom, human rights, clean, healthy and accessible

natural environments and meaningful work. These needs also include our needs for

personal development and self-fulfilment. Maintaining ecological integrity can also be

divided into two parts. One is characterized by principles of consumption, stewardship and

appropriate land uses and is pertinent to all interpretation of sustainable development. The

second, reducing the inequitable consumption of energy and materials by the industrial

houses is somehow downplayed in conventional interpretation of sustainable development

and must be considered an integral part of sustainable development.


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Social Self-Determination rests on certain prerequisites, not the least of which is place.

Militarism and over consumption by the affluent section of the society causes massive

destruction both to natural resources and to the ability of many of the world's people to

achieve self-governance. Place and equity require community self-reliance, in both

developed and underdeveloped communities. Other important elements of social self-

determination include people's participation in decision-making, human scale communities,

participatory governance-decentralized management, grass root activity and cultural

integrity.

Equity means both future equity and current equity. Proponents of conventional

sustainable development have embraced intergenerational equity in principle; it depends

largely on maintaining ecological integrity. Sustainable development gives close attention

to issues of current inequalities which in turn requires not only maintaining ecological

integrity but also meeting the entire range of human needs and achieving self-

determination. Steady state economy defined as an economy in which the total population

and the total stock of wealth are maintained at constant at some desired levels by a minimal

rate of maintenance throughout. The need for a steady economy is based on the fact that

the resources are finite. The human economy is a subsystem of the steady state ecosystem.

Therefore at some level, over some time period, the subsystem must become a steady state.

SUSTAINABLE DEVELOPMENT IN INDIA

India’s tryst with destiny is fraught with plethora of challenges and innumerable

complexities. Its history, culture and polity reflect a wide range of diversity and multiplicity

quite unparalleled in human civilizations. It is this ubiquity of uniqueness that has brought

the nation into a perpetual process of realignment and assimilation. In the event of the

approaching millennium and subsequent change in global order in the form of

globalization, rise of international terrorism, unbridled consumerism, climatic change and

emergence of unipolar world order, India’s challenge has gone manifold. The dilemma is

more pronounced in the economic and social front particularly in its effort to achieve social

harmony and the need to ensure sustainable management of natural resources and the


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environment. The difficulty in attaining social harmony in the face of multiculturalism and

a predominance of pluralist worldviews has been encapsulated in the historicity of its

tradition. The second, however, has gradually been incorporated into the core of the

development debate in recent years.

India’s quest for economic growth, scientific achievement and social development

has been aptly reflected in the Nehruvian policy of post-independent India. But a critical

analysis of India’s progress after half a century depicts a sad reality. Poverty,

unemployment, illiteracy and poor health care facilities continue to haunt the nation. These

facts question the validity of our development model and its effect. The recent emphasis on

sustainable development is a product of our search for alternatives in pursuing human

happiness and welfare.

A conservative estimate of environmental damage in India puts the figure at more

than $10 billion a year or 4.5% of GDP in 1992. That is, urban air pollution costs India $1.3

billion a year. Water degradation leads to health costs amounting to $5.7b every year, nearly

three fifths of the total environmental costs. Soil erosion affects 83-163 million hectares of

land every year. Deforestation, which proceeded at the rate of 0.6% a year between 1981 and

1990, leads to annual costs of $214 million.

Taking an example of a development process of industrialization and urbanization

and its impact on the environment, it is noted that of the 3 million premature deaths in the

world that occur each year due to outdoor and indoor air pollution, the highest number are

assessed to occur in India. According to the World Health Organization, the capital city of

New Delhi is one of the top ten most polluted cities in the world. Surveys indicate that in

New Delhi the incidence of respiratory diseases due to air pollution is about 12 times the

national average. According to another study, while India's gross domestic product has

increased 2.5 times over the past two decades, vehicular pollution has increased eight times,

while pollution from industries has quadrupled.


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These disastrous revelations came at a stage when controlling such pollution was a

Herculean task. The development of India can be divided into phases. In the phase lasting

almost till 1972, development essentially meant usage of natural resource to gain material

wealth or rather conversion of natural resource to market commodities. There was

absolutely no consciousness of natural resource depletion or other issues of environment

degradation. The 1980s continued with speedy conversion of the green tree cover into the

green moolah cover in industrial houses and world state economies. It was somewhere in

the late 80s and early 90s that the alarm bells rang and the concepts of sustainable

development etc sprung up. Thereafter the global community has become conscious of the

possible results of the present rate of natural resource depletion world over.

Several enactments world over came into force; many of them based on general

environmental protection and quite a few on specific aspects of environment protection. The

crucial point however is not in the framing of exclusive enactment but in their enforcement.

This is of special relevance in a developing country like India.

A developing country like India is on its way to achieve the standards set by its

developed counterparts like the United States of America; while on to this arduous task, the

international community imposes on it an obligation to take care of its environment. The

situation, which arises, is one of prioritization; which in itself is the most challenging

decision for the state authorities. It’s a position in the middle of the valley and the well.

The issues for consideration are:

The socio-economic cost for environment protection.

Environmental Cost for industrial development.

Retarded development for environment protection.

For a nation, which has yet to provide its citizen with the bare minimum necessities;

is it viable for it to take steps towards environmental protection which could use up funds


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spared for development activities? Must the state give preference to activities of national

development or the larger issue of environmental protection? Also in a nation, where

people do not have a day's meal; would they be in a position to resort to environment

friendly products which are relatively more expensive than ordinary commodities?

Sometimes, these developing nations facing the multitude questions are also victims

of choice-less situations. For instance, a harmful substance-producing factory is to establish

by a foreign corporation in the developing country for the sake of economy. The developing

country looking for all avenues for development might or may be forced to permit this

establishment for fear of international sanctions and also for revenue purposes. The solution

suggested for balancing developmental needs and environmental protection has been

sustainable development. There has been fiery debate on this issue and much needs to be

resolved on this aspect.

The phenomenon of development also highlights another situation, where the

impact of developmental policies show a direct bearing on aspects of national life and may

affect one segment of the society more strongly than another segment. As much as a

segment of the global community moves towards urbanization, mechanization,

industrialization, another segment of the community would in all probability be paying for

it in relative terms.

ENVIRONMENTAL IMPACT ASSESSMENT:

In view of the Bhopal gas tragedy, future projects in a developing country like in

India must apply environmental Impact Assessment. (EIA) to fulfill the following

objectives:

to identify adverse environmental problems that may be expected to occur;

to incorporate into the development action appropriate mitigation measures;

to identify the environmental benefits and drawbacks of the project, as well as its

economic and environmental acceptability of the community;


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to identify critical environmental problems which require further studies and /or

monitoring;

to examine and select the optimal alternative from the various relevant options available;

to involve the public in the decision-making process related to the environment ; and

to assist all parties involved in development and environmental affairs to understand their

roles , responsibilities and overall relationships with one another.

Environmental Impact Assessment is essentially a preventive process, which avoids

costly mistakes in planning and development. Therefore, it is necessary to carry out EIA

during the feasibility study stage of the planning process. India must carry out EIA for its

development projects in order to ensure economic development. It should ensure rational

geographic distribution of its development plans and try to avert adverse environmental

impacts in the future. Training of skilled manpower and an easy access to in order from

other countries having somewhat similar physical and socio-economic conditions are

important factors which could determine the quality of environmental assessment to be

made.

Developing countries must carry out EIAs to the best of their national capability.

Therefore it is urgently necessary to train our own experts in EIA. Foreign experts are no

substitute for well- trained local experts. The involvement of local expertise will not ensure

that EIAs are carried out more relevant to local needs, but will also ensure a significant

reduction in EIA costs when compared with those conducted by foreign experts.

The need to take environmental considerations into account to ensure successful

economic development is increasingly recognized throughout the world. Laws of many

countries provide that reports on environment impacts must be submitted for public review.

Environmental Impact Assessment provides an important methodology for acquiring a

clear understanding of the relationship between economy, society and environment and

offers positive measures for better harmonizing the relationship between economic

development and environmental protection as an effective means for strengthening


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environmental planning and management. The implementation of this system is of great

significance to both economic development and environmental protection especially in a

developing country like India, with its historical Bhopal gas tragedy.

THE SUPREME COURT ON SUSTAINABLE DEVELOPMENT

The Indian Supreme Court has earned itself an excellent record in the creation of

environmental rights in India, and their contribution to the jurisprudence of

environmentalism has provided an example for environmental lawyers all over. The court

has also applied the principle of sustainable development in several cases before it. The

Indian experience serves as a good example to look at how sustainable development theory

has development in a given legal context.

The case regarded as a landmark for the application of sustainable development in

the Indian context is the decision in the Calcutta Wetlands casexiv, where a Public Interest

Litigation was filed against the rapid dredging and filling of marshes in the Salt Lake area

of Calcutta. The High Court recognized that the environmental concerns had to be

addressed at the same time as developmental concerns, and that development much

progress at a rate that took into account the interests of ‘posterity’ as well. The High Court

struck down the decision to dredge and fill the marshes in Salt Lake on the grounds that

India was a party to the RAMSAR Convention, and had thereby signified its intent towards

the protection of wetlands. Further, the High Court also recognized that fact that the

industries could be built in other areas with less environmental damage.

The first concrete application of sustainable development theory arose in State of

Himanchal Pradesh v. Ganesh Wood Products, where the Supreme Court held that the

government could not allow the approval of these industries in the State where the

industries sought to use the forest products collected by mechanized units as the units had a

deleterious effect on forest wealth, ecology and the environment. The Supreme Court also

held such approval to be contrary to established considerations of sustainable development

and intergenerational equity. However, in the striking down of the approval of the forest


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industries that posed environmental threats, the Supreme Court did not go into an analysis

of the application of the principle of sustainable development to the facts of that case, nor

did it explain the principle itself. Hence, the value of the case as a precedent for the

application of sustainable development in the Indian context may be regarded as slightly

doubtful.

The actual leap from the principle of absolute liability laid down in the Oleum Gas

Leak case occurred in the case of Indian Council for Enviro-Legal Action v. Union of India

where the court held that the manufacturers of products discharging toxic effluents into the

region would be liable for the payment of compensation as per the absolute liability rule

laid down in the Oleum Gas Leak case, as well as the precautionary principle and

sustainable development principles. This represented the first instance in which the

Supreme Court used sustainable development theory as a basis for calculation of damages

for environmental wrongs.

The decision in Vellore Citizen’s Forum v. Union of India was the first decision in

which the Supreme Court discussed the principle of sustainable development from a

theoretical standpoint. In that case, the Court agitated its mind upon the matter of polluting

tanneries in Tamil Nadu. The court held that the polluting industries had to prove that they

were non-polluting, as they had failed to do so; they were liable to be shut down and pay

compensation for the ecological damage caused by them.

The trend in the Supreme Court till recently was to apply the principle of sustainable

development towards ecological harmful industrial activity, resulting in the closure or

relocalisation of industries, as most of them were found to be violative of the delicate

sustainable development balance principle. However, of late, the trend has seen a few

deviations. Recent Supreme Court decisions have tended to support incursions on the forest

cover and the environment in the interests of ‘development’. Good examples are as follows:

Consumer Research & Education Center v. Union of India: In this case the petitioner

filed Public Interest Litigation against the alteration of boundaries of the Chinkara


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Sanctuary to allowing within the sanctuary. The Court ordered that the mining be allowed

for a period of five years, after which it would examine if any deleterious impact of the

mining could be noticed.

Live Oak Resort v. Panchgani Hill Station Municipal Corporation: In this case, the

petitioners sought to prevent the construction of a 5-star luxury hotel in the Panchgani Hill

Station on the ground hat it might affect the environment of the area. Court in this case

allowed the construction on the grounds that:

‘In a developing economy there cannot be only development or only

ecology, but both must exist and thus a balance will have to be struck

else otherwise society will perish in the absence of either of the elements.’

Narmada Bachao Andolan v. Union of India: This was a case challenging the legality of the

proposal to raise the height of the Sardar Sarovar dam, which would directly impact people

in parts of the states of Madhya Pradesh and Gujrat. When discussing the environmental

impact of the dam, the court did not apply shift the onus of proof upon the polluting

industries as was laid down in MV Nayudu’s case. As dams were not so inherently hazardous,

this shift in the onus of proof was unnecessary. The Court held:

Merely because there will be a change is no reason to presume that

There will ecological disaster. It is when the effect of the project is

Known then the principle of sustainable development would come into

play, which will ensure that mitigative are and can be taken to preserve

the ecological balance. Sustainable development means what type or extent of

development can take place, which can be sustained by nature and ecology, with or without

mitigation.‛


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Having looked at the decision of the Supreme Court seeking to apply sustainable

development theory, the correctness or authenticity of their application must also be

analyzed. In the initial phase, it cannot be denied that the Supreme Court was on a strong

theoretical footing, seeking to apply sustainable development by means of its handmaidens-

the polluter pays principle and the precautionary principle. The application of sustainable

development in the Indian context may not satisfy conventional sustainable development

theorists, however, as some of the later decisions conflict with this trend and seem to have

the following common characteristics:

The reliance upon the precautionary principle, which pervaded earlier judicial

decisions, seems to have been diluted in these decisions. The precautionary principle takes a

very tricky approach to the enforcement of protective measures for the environment.

Hence, any doubts that may reasonably arise may be justified on the basis of this principle.

There also appears to be a shift away from he reconciliatory approach of sustainable

development. The concept of sustainable development is reconciliation between

environment and economy. Decisions of the Supreme Court seem to take a confrontational

approach to the crisis of ecology and economy, by adopting to follow either a purely

ecological trend, or a purely economic perspective, depending upon which has a more

persuasive case.

Finally, it must be submitted that sustainable development is not purely abstract

concept. It must be clearly enunciated, and its tools and methods must be clearly specified.

However, while prescribing the trend of sustainable development, the Supreme Court has

failed to lay down a roadmap for sustainable development in its orders. While it is clear that

the courts in India have not adhered to a rigid interpretation of sustainable development

theory in India, the importance of the theory lies in its potential for use by the courts as a

means of ensuring environmental compliance. Hence, in order to comply substantially with

the requirements of sustainable development theory, the courts should seek to incorporate

the suggestions made above.


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To end the discussion it can be said that the threat to environment and ecology due

to pollution, poverty, population and indiscriminate industrialization is a hard reality in

India. People have begun to realize the dangers to ecosystem inherent in the development

design India has chosen at the behest of market forces. Alternatives to this kind of

development are still being searched and sustainable development is one of them. There

have been some fundamental problems endemic to sustainable development like transfer of

environmental technology, the need for a social policy etc. But it appears in the present

context a better alternative. Therefore, it is a crucial decision on the part of the nation as it

has decided its future in a development policy, which will encapsulate equity, equality and

excellence. The sooner are will find the alternative of better for the native as well as the

world. But to our understanding and observation, we can achieve our objective of economic

growth and equitable distribution of wealth and resources if we can restructure our present

development policy and alter our priorities a bit. In fact, crucial to development practice is

the notion of commitment and accountability. If our political decision makers and

executives of development and planning could be accountable to the masses for their action

and a little bit committed to the ethos of development then we could see significant change

in near future.

REFERENCE

i M.U. Haq, The poverty Curtain: Choices for the Third World, New York: Columbia University Press, 1979, p.9. ii K.K. Prah, ‚African Languages Key to African development‛, in M.V. Troil, Changing Paradigms in

Development South East and West, Uppasala: The Scandinavian institute of African Studies, 1993, pp.70-75. iii S. Mahapatra, ‚Culture as Centre Piece‛, Times of India. New Delhi, 5th August, 1994. iv M.R. Dove, The Real and Imagine Role of Culture in Development, Honolulu: University of Hawaii Press,

1998. v A. Guha and F. Vivekananda, Development Alternative, Stockholm: Bethny Books, 1985 pp.41. vi F. Barnaby, ‚The Environmental impact of the Gulf War‛, The Ecologist, vol. 21; No. 4, July/August, 1991. vii J. Speth, ‚A Post Rio Impact‛, Foreign Policy, No.88.pp. 146-61, 1994. viii Pearce et al. Sustainable Development, London: Edward Elger Pvt. Ltd., 1990. ix Winepenny, 1990 Quoted from- Kula, E., Economics of Natural Resources, the Environment and Policies,

London: Chapman & Hall, 1994.p. 32. x J. Mohan Rao, Economic Reform and Sociological Refurbishment: A strategy for Indian agriculture‛, in

Economic and Political Weekly, vol. XXX no. 28, July, 15. xi V.R. Reddy, ‚Environment and Sustainable Agricultural development‛, economic and Political Weekly, vol.

XXV no. 12, March 25, 1995. xii 9. Pearce et al. Sustainable Development, London: Edward Elgar Pvt. Ltd., 1990.


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xiii 11. Ibid p. 32.

40. D.N. Dhanagare, "Sustainable Development, Environment and Social Science Research in India",: in

Savur, M., & Mushi, M., (ed) Contradictions in Indian society, Jaipur : Rawat Publications, 1995. 15 . Reddy, V.R., "Environment and Sustainable Development", Economic and Political Weekly, Bombay :

Vol. XXV. No. 12, March 25, 1995. 41. People United for Better Living in Calcutta v. State of West Bengal, AIR 1993 Cal. 215


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CASE COMMENT

OCCUPATIONAL HEALTH AND SAFETY

ASSOCIATION VERSUS UNION OF INDIA,

ARUP KUMAR PODDAR

INTRODUCTION:

Supreme Court has decided number of cases where the environmental degradation was

questioned severely and also protected various components of the environment while

applying various provisions of the environmental legislation including principles of

international environmental law. In the year 1997, the Supreme Court in a number of cases

decided in favour of environmental protection and given a balanced opinion also for the

workers working in the industries. For example, Calcutta Tannery, Taz trapezium cases

while shifting and relocating the existing industries, Supreme Court provided monetary

relief to the workers working in the industries. However, there are very few cases where the

health issues of the workers working in the hazardous industries have been dealt with by the

judiciary. The present case comment will try to focus on the health issues of workers

working in the thermal power plants.

FACT OF THE CASE:

In the present case the petitioner represents about 130 Coal Fired Thermal Power Plants

(CFTPPs) these power plants are available all over India in different parts of the State.

However, there were no proper occupational health services with adequate facilities for

health delivery system available in these plants. Even there was lack of proper guidelines

with respect to health and safety.

Whereas the legislations like Factories Act, Boilers Act, Employees State Insurance Act,

Compensation Act, the Water (Prevention and Control of Pollution) Act, the Air (Prevention


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and Control of Pollution) Act, the Environmental (Protection) Act, etc. are in place. It is

interesting to note here that in spite of having the above-mentioned legislations there are

continuous lack of proper health delivery system and evaluation of occupational health

status of workers. Because of the lack of implementation of the above-mentioned

legislations, the workers who are working in the factories and industries are continuously

exposed to the most hazardous health problem and living style also got affected.

An interlocutory application was filed by the petitioner respectively one in the year 2005

and the other one in the year 2007 where the serious health issues where highlighted for the

workers who were working in different power plants and were suffering for years.

Petitioners submitted a report which was indicating that most of the workers were suffering

from pulmonary function test abnormalities, lung function abnormalities, skin diseases,

asthama and so on.

In the present case the petitioner is a non profit occupational health and safety organisation,

and registered under the Societies Registration Act 1860.

RELIEF SOUGHT:

The petitioner brought the case under article 32 of the Indian Constitution. The petitioner

requested for the following relief:

a. to issue a writ of mandamus or any other order, direction including framing of

guidelines with respect to the operational safety and health regulation;

b. two issues such orders, directions by which union of India shall constitute a

committee form a monitoring of the working of thermal power plants in India;

c. to issue a writ of mandamus or any other appropriate writ, order or direction

directing the respondents to pay compensation to the workers who are victims of

occupational health disorders and to frame a scheme of compensation for workers in

case of operational health disorders;


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d. two issues orders, directions to the respondent under which the respondent shall be

compelled to notify the recommendations is contained in paragraph 35 of the

petition as guideline to be followed by thermal power plant.

INTERIM ORDER & DIRECTIONS:

This supreme court after the hearing this petition issued an interim order on January 30,

2008. The case was decided by two judges, they are K.S. Panicker Radhakrishnan and A.K.

Sikri. In the interim order, the Supreme Court issued certain directions:

a. Medical checkup to be done to all the workers who are in coal-fired thermal power

station. This medical checkup shall be binding in nature. First medical checkup

should take place within six months. Thereafter the medical checkup shall be done

yearly basis;

b. workers found ill and undergoing with treatment shall not be terminated from job;

c. the provisions of the Workmen's Compensation Act 1923 shall be taken into

consideration while paying compensation to the workers suffering from any

occupational diseases, ailment or accident;

d. workers should not suffered from the occupational health hazards, therefore, modern

protective equipment shall be provided to workmen as recommended by an expert

body in consultation with the trade unions;

e. there should be devices to be adapted within the industries by which the dust, heat,

noise, vibration and radiation can be controlled. This controlling process may be in

the line of recommendation given by the National Institute of Occupational Health

Ahemdabad, Gujarat;

f. there must be health audit as devised by the Bureau of Indian Standards, all

employees shall follow the code of practice on occupational safety and health;

g. workers showed adept safety methods while handling, collecting and disposal of

hazardous wastes;

h. a committee to be established with the help of experts from National Institute of

occupational health including the representatives of the trade union, representatives


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from the non-governmental organisation to look into the health and safety of

workers and make recommendations for their upliftment.

Learned Additional Solicitor General, Mr. P.P. Malhotra, on behalf of the Government of

India submitted the fact that the guidelines provided by Supreme Court have been accepted

by the central government. The government also clarified that actions shall be taken under

the relevant provisions of laws, which are already in existence. Similarly, the Supreme

Court also directed the Ministry of Labour that the concern Ministry should take

appropriate steps in the line of the suggestions made herein so that the employees working

in the concerned industry can also be benefited with the help of these suggestions

generated. However, the council on behalf of the central government clearly mentioned

that directions like workers should adopt safety methods, while handling collecting and

disposal of hazardous waste and a committee to be established with the help of experts from

the National Institute of operational health of including representatives from the trade

union and group non-governmental organisation, the government shall examine and fix the

way of enforcement.

This writ petition came back before the Supreme Court again on 6.9.2010 and was disposed

off by the court accordingly. Subsequently, the government submitted the report on the

occupational health and safety. The report was submitted by the National Institute of

occupational health, where the protest from non-governmental organisation, trade union,

personnel from National Institute of occupational health and safety, where present to give

recommendations relating to collection, disposal and handling of hazardous waste. The

committee had to look into the feasibility of working condition of the workers/employees

working within the industry which are hazardous in nature. The committee was of the

opinion that most of the industries that are lacking the occupational health and safety

guidelines, therefore, the suggestions, whatever generated from the central government

must be instituted almost in all the industries which are hazardous in nature.

OBJECTIVE OF ENVIRONMENT (PROTECTION) ACT:


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The Environmental (Protection) Act, 1986 gives us a wide range of guidelines which are

pertinent for the hazardous industries as well. Similarly, Sections 6, 8, 25 of the

environment protection act provide sufficient instrument in the hand of central

government to frame regulation, under which the handling, collection and disposal of

hazardous waste can be regulated and controlled well. Therefore, the Environment

Protection Act is also applicable to the industries where the workers are facing health

problem because the industries are hazardous in nature. Accordingly, as per the provisions

of the Environment Protection Act, it is the central government who is responsible to ensure

health and safety of the worker those who are working in these results industries.

Senior counsel, Mr Colin Gonsalves, raised objections while stating that the central

government and the committee both misunderstood the directions given by the Supreme

Court, basically, in terms of quick remedy to the workers who were suffering with the

health issues as working in the hazardous industries. According to senior counsel, the

central government and the committee both overlooked the necessity of time bound

operation for the medical treatment to the workers who are suffering from occupational

health and disease. Similarly, senior counsel also pointed out that the workers who are

facing serious and irrevocable occupational health issue should be entitled for

compensation amount under the provisions of appropriate law. It can be added here that

the central government has the responsibility to enforce the provisions of the law which are

applicable to the society and people who are suffering with occupational health and safety

issue, but also to bring the relevant and appropriate policy which are inevitable for the

purpose of providing substantial social justice to the workers who are suffering under the

occupational health and safety measure those who are working in the hazardous industries.

Directive principles of State policy, which is the integral part of the Indian Constitution,

entrusts on the central government substantial duty to bring policy which can provide

social and economic justice to the weaker sections of society.


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It is interesting to note that, the additional Solicitor General clearly pointed out that it is in

government and the committee, established for the purpose of looking into the health and

safety to the workers who are working in the thermal power plant, appropriately looked into

various problems and suggested the way out under which proper actions to be undertaken

by the management of the thermal power plant. Additional Solicitor General made it very

clear that it is not surprising for the management not to look into the health issues of the

workers, rather the management is efficient enough to look into the feasible options of

health issues of the workers, because management is well aware of the fact that the power

plant functions with the help of the workers day and night.

CASE REFERENCE:

The Supreme Court in Consumer Education and Research Centre V. Union of India case

(1995) 3 SCC 42, made it very clear that the health of the worker is protected as

fundamental right under article 21 of the Indian Constitution. Once article 21 of the Indian

Constitution is compared with article 39, article 41, article 43, article 48A, give a

magnificent provision of fundamental human right to the worker who are working in

hazardous industries. Supreme Court made it very clear that when the workers are exposed

to such industries which are hazardous in nature, it is the duty of the central government to

bring policies under which the health of the workers can be protected. Not only that, the

family of those workers and their health should also be protected by the central

government and by the management of the industries.

RIGHT TO HEALTHY ENVIRONMENT:

Right to healthy environment is one of the fundamental rights enshrined under article 21 of

the Indian Constitution. Article 21 of the Indian Constitution speaks loudly about right to

live with human dignity. It is also true that the same article also speaks of right to healthy

Environment. However, Article 21 of Indian Constitution while saying the right to healthy

environment depends on other articles as well. For example, Clauses (e) and (f) of the

Article 39, Article 41, Article 42 of the Indian Constitution are few to name who play vital

role in giving the final shape of right to healthy environment as enshrined under Article 21


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of the Indian Constitution. So, all the above-mentioned provisions of the Indian

Constitution finally give the shape of protection in of the environment and also protection

and safety of the health of workers. Supreme Court here analysed the fact that it is the

minimum duty of the States to provide minimum human dignity to all persons including

workers who are exposed to hazardous industries. Similarly, when the workers are working

in thermal power plant, an industry which is hazardous in nature and also associated with

occupational health and safety issues round-the-clock, the duty and responsibility of the

central government and the management of the industry become double fold under these

situations keeping in mind that the workers are working to those industries which may be

hazardous in nature but at the same time the workers are involved in the industries which

are generating power for the national interest, of the National growth and for overall

development of the nation.

It is important to note here that India is the largest producer of coal in the world. For

running the thermal power plant India needs for about 14,000,000 tonnes of coal per year.

As per the report of the Ministry of power, Government of India we have at this moment

130 thermal power plant available in India. The total electricity produced in India in which

2/3 is supplied by the thermal power plant. Therefore, thermal power plant is inevitable for

the growth of the nation. In the circumstances when the workers are forced to work in

industries which are hazardous in nature, one cannot compromise with the obligatory

presence of workers role is inevitable because that play vital role in the overall development

of the nation.

REPORT OF THE COMMITTEE:

The committee constituted by the National Institute of occupational health including with

the representatives from the trade union and also from the non-government organisation

produced a report before the Supreme Court. Few basic features of the port as under:

a. use of hazardous material in insulation-certain materials like asbestos, glass wool, etc

are frequently used in thermal power plant. If these materials are inherited by the


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workers or if they come into contact in workers is keen for I that because huge health

disorder. Similarly, as asbestos is also carcinogenic element which may cause cancer

to the workers. Nowadays, safer substitutes, such as paramid, polyvinyl alcohol

(PVA), cellulose, polyacrylonitrile, glass fibres, graphite are available, maybe explore

for alternative use.

b. Different provisions of the Environment Protection Act and also from time to time

the changes brought in the act should be enforced to ensure the appropriate

maintenance of emission and discharge standards, ash utilization and management

of hazardous wastes. Similarly, health and safety of workers are to be ensured by the

management of the thermal power plant.

c. Flying ash from the thermal power plant should be utilised as per the guidelines

given by the Central Pollution Control Board in the 2009-10.

d. So far possible automatic machine for handling the coal may be installed in the

thermal power plant, so that the workers may have opportunity to keep themselves

away from coal.

e. There should be broad guideline for the purpose of looking into the health issues of

workers in the thermal power plant. It is also important that there must be

manpower who would train the workers to meet with the need in case of

emergencies. The services which are to be emergency team within the thermal

power plant should be independent from the hospital services. However, there must

be relation between the hospital services and also the services within the thermal

plant, with relation to treatment of patient in case of emergency. The workers should

be trained well that how to apply first aid in case of emergencies.

f. Systematic and periodic awareness scheme and programme should be operated to the

workers of the thermal power plant. Here, community awareness programme also

should be encouraged among and between the workers and their families.

g. Periodic medical checkup and examination of health of the workers are mandatorily

to be undertaken by the management of the thermal power plant. As per the

Factories Act the periodic chest x-ray is recommended to the workers, however, the


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committee thinks it fit that yearly checkup of the chest with the help of x-ray, may

not be possible, because that may create some other health issues to the workers

therefore, chest x-ray can be possible initially for two years thereafter at the lapse of

10 years, chest x-ray can be possible.

h. Health records of all the workers to be prepared in documentation form and also in

chronological order and preferably should be stored in an electronic form.

i. All the thermal Power plant should prepare vision statement on environment, health

and safety guidelines. There, different policy and legislation should also be kept as a

part of reference material. Management of the power plant should without fail look

into the enforcement of the various provisions which are related with the protection

of the health and safety of the workers working in hazardous industries.

j. Finally, the committee also thinks that the document on health and safety of the

workers working in the hazardous industries should be in place at the earliest. In this

regard, the different relevant provisions of the Factories Act should be consulted for

the preparation and management of the health and safety issue of the workers not

only who are holding permanent position but also for those workers who are out of

contract or casually appointed as well.

The report of the expert committee for that gives an indication that the workers who are

working in these coal-based thermal power plant, generally exposed to hazardous activities

such as exposed to dust, heat, noise, vibration and waste. Similarly, the workers also inhale

dust generated from the burning of coal and suffer from respiratory problem throughout

the life. Because of Hughes exposed to noise, the workers suffer from low hearing, high

blood pressure, radio vascular disorder, muscle and bone disorder, etc.

FINDINGS:

The Supreme Court, while deciding the case, clearly pointed out that thermal power plants

are not present in one state of India; rather the thermal power plants are available all over

India. Therefore, the respective states, where the thermal power plants are available, High


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Court can also take lead role in this regard and supervise the functioning of these thermal

power plant and workers thereof. The state High Court can ensure that the vision

statements with relation to protection of the health of workers in the coal-based thermal

power plants are adequately followed as per the provisions of the various relevant

legislations available in India. The state High Court would also ensure that the health

delivery system is followed appropriately in the same state and providing solutions to

various health issues to the workers working in hazardous industries. At the same time,

High Court should ensure that the medical treatment is offered to all the workers working

in thermal power plants.

CONCLUSION:

From the above discussion, it can be concluded that the present case was decided by the

Supreme Court in order to protect the health of the workers working in the thermal power

plants. It is very evident that in the year 1991 Supreme Court clearly defined the mandate

of rights to healthy environment as a part of Article 21 of the Indian Constitution while

deciding the Subhash Kumar versus State of Bihar case of 1991. The industry not only

should take due care in order to protect the people, who are residing in the vicinity of

industry, from its hazardous activities, but also protect the health of the workers who are

working within the industry and are exposed to various hazardous activities. The committee

constituted by the National Institute of occupational health made various

recommendations, which the Supreme Court has accepted for further implementation with

the help of state High Courts.


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CASE COMMENT

ASSOCIATION FOR MOLECULAR

PATHOLOGY,

ET AL V UNITED STATES PATENT AND

TRADEMARK OFFICE ET ALi

GARGI CHAKRABARTI

BRCA 1 and BRCA 2 genes are found to be associated with the increased risk of breast

cancer as well as ovarian cancer. In 1990, a team of scientists from University of California,

Berkeley declared the association of BRCA 1 gene (present in long arm of chromosome 17)

with the risk of breast cancer.ii In 1994, researchers of Myriad genetics along with colleagues

at the University of Utah, the National Institutes of Health (NIH), and McGill University

isolated and published the sequence of BRCA 1.iii In the same year, the first BRCA 1 U.S.

patent was filed by the University of Utah, National Institute of Environmental Health

Sciences (NIEHS), and Myriad. In 1995 isolation and sequencing of the BRCA2 gene was

done by Myriad, in collaboration with University of Utah and the first BRCA2 patent was

filed in the U.S. In 1996, Myriad launched their BRCA Analysis product, which detects

certain mutations in the BRCA1 and BRCA2 genes that put women at high risk for breast

cancer and ovarian cancer. USPTO issued several gene patents to Myriad Genetics and the

University of Utah Research Foundation, allowing extensive control over BRCA1 and

BRCA2 breast cancer genes. The patents also contained some broad claims to diagnostic

methods. Myriad is the only laboratory in the United States where commercial diagnostic

testing for BRCA1 and BRCA2 can be performed. Moreover, the tests are expensive and

Myriad has charged a relatively high rate (over $3,000) for the tests, which places them out

of the reach of many.


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FACTS

The AMP (Association for Molecular Pathology) with the University of Pennsylvania,

researchers at Columbia, NYU, Emory, and Yale; and with several patient advocacy groups

and several individual patients filed the case against Myriad, the Trustees of the University

of Utah, and the U.S. Patent and Trademark Office (USPTO). The USPTO was severed from

the case by the district court. The complaint made against specific claims on isolated genes,

diagnostic methods, and methods to identify drug candidates, in seven of Myriad's 23

patents on BRCA1 and BRCA2.iv The plaintiffs claimed that these patents were invalid on

the grounds that they are not patentable subject matter under §101 of Title 35 of the United

States Code as the isolated genes are unpatentable products of nature, and that the

diagnostic method claims are mere thought processes that do not yield any real

transformations, and that the drug screening claims were just describing the basic processes

of science.

According to USPTO, genes are chemical compounds, though complex ones, and thus

qualify for potential patenting as compositions of matter. Naturally occurring product

cannot be patented, but the USPTO has allowed patents on genes, naturally occurring

products, that have been purified, isolated, or otherwise altered. For this reason, gene

patents have been issued in the U.S. for decades. The National Institute of Health estimates

the number of patents in the United States that cover "isolated" or "purified" genes to be

around 20% of all human genes. These include genes that have been associated with

different forms of cancer, Alzheimer’s and other diseases.

Count of Myriad’s patent claims can be divided into two parts: (i) For isolated DNA

sequences and (ii) For methods of comparing or analyzing gene sequences to identify the

presence of mutations corresponding to a predisposition to breast or ovarian cancer.v Both

sets of patents were rejected under Section 101, which enumerates the permissible

categories of patentable subject matter: processes, machines, manufactures, and

compositions of matter. As the judge of District Court noted, a long history of cases forbids


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claims on laws of nature, abstract ideas, and natural phenomena, which include products of

nature.

Isolated DNA Sequences denoted as insufficiently distinct from naturally occurring genes

in the body. Whether a patent application for subject matter is patentable or not, is based on

novelty, utility, and non-obviousness criteria. To establish the said criteria, the court went to

assess how different an ‚isolated‛ gene would have to be to avoid characterization as a

product of nature. Myriad defined ‚isolated‛ in its patents as ‚substantially separated from

other cellular components which naturally accompany a native human sequence [such as]

human genome sequences and proteins‛.vi As a reference Myriad argued on some cases

going back to the early twentieth century which especially one involving purified

adrenaline.vii

The judge disagreed strongly and went back even further, to nineteenth-century cases

involving line fibers and wood pulp, as well as later cases involving such things as pure

tungsten, and concluded that ‚purification of a product of nature, without more, cannot

transform it into patentable subject matter. Rather, the purified product must possess

‘markedly different characteristics’ in order to satisfy the requirements‛.viii

Myriad’s isolated genes failed this test. In his search for ‚markedly different characteristics,‛

Judge Sweet presumably held that critical functional property of a gene is its ability to carry

the information sufficient and necessary to code for a protein, whether in the body or in

isolation. DNA represents the physical embodiment of biological information, distinct in its

essential characteristics from any other chemical found in nature. It is concluded that

DNA’s existence in an ‘isolated’ form alters neither this fundamental quality as it exists in

the body not the information it encodes. The preservation of this defining characteristic of

DNA in its native and isolated forms mandates the conclusion that the challenged

composition claims are directed to unpatentable products of nature.ix

From the very beginning of gene patenting, patent lawyers have taken the stand that genes

are just chemicals. Their information carrying function is irrelevant to their patentability.


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Because genes are chemically different in isolation, at least in a literal sense, they can’t be

considered products of nature. The USPTO and the courts, including the patent court of

appeals have uniformly submitted.

Myriad’s process claims also failed to fulfill the patentable criteria. The court conducted the

‚machine or transformation‛ test for method claims (This test comes from the recent Bilski

case; although the Supreme Court will soon issue its own opinion on Bilski case, the

machine or transformation test is the law unless and until the Supreme Court orders

otherwise). Judge Sweet found that none of the methods were coupled to any particular

machine, nor did they bring about a tangible transformation of anything. As per his

judgment, ‚because the claimed comparisons of DNA sequences are abstract processes, they

also constitute unpatentable subject matter and physical transformations associated with

isolating and sequencing DNA, they would still fail the ‘machine or transformation’ test

under §101 for subject matter patentability‛.x

In reference to the said case, it is relevant to maintain that in 2007, the European Patent

Office (EPO) rejected an appeal by Myriad Genetics and the University of Utah, relating to

the BRCA1 gene and its applications. There was widespread objection to the extent of this

claim among European researchers, since it granted an effective monopoly to Myriad which

they believed unjustified; six bodies filed objections, leading to a decision by the EPO in

2005 to substantially amend the patent, retaining only the claims relating to a specific

nucleic acid probe and vectors containing gene sequences. The EPO has now rejected an

appeal by Myriad and the University of Utah, and amended the patent, meaning that

European laboratories retain the right to perform diagnostic tests for mutations in the

BRCA1 gene sequence, which are associated with increased susceptibility to breast and

ovarian cancer.

Myriad's appeal at United States Court of Appeals for the Federal Circuit was granted and

the case was heard in 2011. On July 29, 2011, Judge Alan Lourie of the Federal Circuit

reversed the district court's decision saying that an isolated DNA sequence and that methods

for screening cancer therapeutics is patent-eligible; but agreed with the district court's


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decision that Myriad's claims for comparing DNA sequences are patent-ineligible. The

reason shown is that isolated DNA is chemically distinct from the natural state of a gene in

the body.xi

AMP, being unsatisfied with the judgment of the United States Court of Appeals for the

Federal Circuit, applied for the review of the case in the Supreme Court. Supreme Court

granted the review on March 26, 2012 after vacating the judgment of Federal Circuit. The

reference of the recent decision in Mayo Collaborative Services v. Prometheus Laboratories,

Inc.,xii is cited where the Court ruled that certain kinds of claims in medical diagnostics

patents, including natural phenomena, were not patentable. The Supreme Court wanted the

Federal Circuit to take this precedent into account while reviewing this case. But eventually,

the decision of Federal Circuit after second hearing also was almost the same as before and

moreover they found that the Mayo precedent was not particularly relevant to this case, as it

did not deal with the patent eligibility of gene patents.xiii

American Civil Liberties Union and the Public Patent Foundation filed another petition in

the Supreme Court after the second Federal Circuit Decision, on September 25, 2012. On

November 30, 2012, the Supreme Court had agreed to hear the plaintiffs' appeal.xiv After

hearing the United States Supreme Court held that an isolated segment of naturally

occurring DNA segment is a product of nature and is not patent eligible, the simple reason

behind that is it has been isolated from the gene and it contained the same genetic

information as that of natural DNA. On the other hand the Court held that, as cDNA

sequence is an exons-only molecule and is not naturally occurring, thus is eligible for

patenting in the United States.

ANALYSIS

BRCA 1 & BRCA 2 gene patents to Myriad Genetics by USPTO, allowed extensive control

over BRCA1 and BRCA2 breast cancer genes by Myriad. The patents also contained some

broad claims to diagnostic methods. So it becomes practically impossible for other

companies to test those genes and develop alternative tests; women left with no other choice


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but to use only Myriad; as Myriad is the only laboratory in the United States where

commercial diagnostic testing for BRCA1 and BRCA2 can be performed. The Myriad after

getting exclusive rights over testing, had consistently refused to grant licenses to allow any

other parties to perform testing, which marginalized the at-risk women. So the Supreme

Court decision has come as a welcome move for all the at-risk women, as well as the

companies engaged in the research and development regarding the BRCA 1 & BRCA 2

mutation diagnostic methods.

In the positive note, non-patentability of the isolated DNA is well appreciated because from

the diagnostic perspective; research and development can get wider scope as the researchers

can find out the new linkages between specific disease with the specific gene sequence

responsible for the disease. Not only that, it can solve the public interest issue. The diagnosis

and treatment price rise due to patent can be minimized because of more competition

between different companies. Even, the triple test of patent criteria is well established by this

particular decision where the word ‚invention‛ is properly defined.

On the contrary, cDNA is necessary tool for making gene probes and doing gene cloning;

which are very much helpful for research and development for gene therapy. Patenting of

cDNA will hinder the public health and public interest issue in general. Now the gene

therapy is available only for ‘cystic fibrosis’ but in future it may prove itself to be a very

effective treatment modality for various diseases including cancer. Researchers may face a

roadblock as a consequence of the patentability of cDNA.

REFERENCE

i Case citation No. 12–398. Argued April 15, 2013—Decided June 13, 2013; available online at

http://www.supremecourt.gov/opinions/12pdf/12-398_1b7d.pdf (accessed on 18.06.13) ii Hall, J. et al (1990). "Linkage of early-onset familial breast cancer to chromosome

17q21". Science 250 (4988): 1684–1689. iii Miki, Y. et al (1994). "A strong candidate for the breast and ovarian cancer susceptibility gene BRCA1".

Science 266 (5182): 66–71. iv Schwartz, John and Pollack, Andrew (March 29, 2010). "Judge Invalidates Human Gene Patent". The New

York Times. Retrieved March 29, 2010. v Page 2 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010 available online at:

http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-Opinion.pdf (accessed on 04/2/2010) vi Page 92 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010

http://www.supremecourt.gov/opinions/12pdf/12-398_1b7d.pdf

http://www.aclu.org/files/assets/2010-3-29-AMPvUSPTO-Opinion.pdf


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vii http://pubs.acs.org/subscribe/archive/mdd/v04/i12/html/12timeline.html viii Page 121 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010 ix Page 125 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010 x Page 147 of Case 1:09-cv-04515-RWS Document 255 Filed 03/29/2010 xi United States Court of Appeals for the Federal Circuit Docket 2010–1406, Decided July 29, 2011. Appeals

Court Decision xii 566 U.S. ___ (2012); 132 S. Ct. 1289. xiii Conley, John. "Applying Mayo to Myriad: Latest Decision Brings No New News". Genomics Law Report.

Retrieved October 14, 2012. xiv Kevin E. Noonan for Patent Docs Blog, September 25, 2012. ‘Plaintiffs (Again) File Certiorari Petition in Myriad Case’.


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LEGISLATIVE COMMENT

THE NATIONAL FOOD SECURITY ACT, 2013: A

CRITIQUE.

GEORGE K. JOSE

THE NATIONAL FOOD SECURITY ACT, 2013

Aims to provide for food and nutritional security by ensuring access to adequate quantity of

quality food at affordable prices to the people to live a life with dignity. It also provides

ways and means for the revitalization of agriculture in the country. While the Act

specifically calls for revitalization of agriculture, the state and central governments are

handing over agriculture to the corporate sector. The massive migration of people from

rural areas to the towns abandoning agricultural sector and alarming numbers of suicides

by farmers across the country adds to the urgency in the matter. Objectives of Food Security

Act and the agricultural corporatization by the Government of India in tune with the

demands of WTO and globalization seem incompatible. Encouraging corporate interest in

agriculture may destroy the very objectives of Food Security Act. It is necessary to

understand the various incompatibilities between food security and revitalization of

agriculture as mandated by the Constitution on one side and corporatization of agriculture

under the pressures of globalization on the other. One has to find an ingenious approach to

WTO conditions that currently turn Indian agriculture into a multi- national business for

profit alone.

The Indian National Food Security Act, 2013, (also known as the Right to Food Act) is a

legislative measure of the Government of India to guarantee subsistence and nourishment

to nearly 67% of its 1.2 billion populations. This herculean task attempts to secure more

than 70 million Indians from the threat of starvation. More than six decades after its

independence, India now offers a guarantee to its people that of providing them with very


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first of basic human need, i.e. food. By enacting Right to Food legislation India is also on its

way to fulfill its commitment to one of the Universal Human Rights.

The National Food Security Act, 2013, “provides for food and nutritional security in human

life cycle approach, by ensuring access to adequate quantity of quality food at affordable

prices to people to live a life with dignity and for matters connected therewith or incidental

thereto”. Enactment of Right to Food is considered as one of the major achievements of the

UPA- II Government along with the Mahatma Gandhi National Rural Employment

Guarantee Act, 2005, enacted under UPA-I. For the UPA Government at the Center the

enactment of laws to provide for minimum employment and food for the rural and urban

poor are fulfillment of its election promises and commitment to the needs of the poor and

marginalized.

Under the Food Security Act, provisions are made to ensure “every person belonging to

priority households, shall be entitled to receive five kilograms of food grains per person, per

month at subsidized prices” and households covered under Antyodaya Anna Yojana “be

entitled to thirty five kilograms of food grains per household per month” at specified rates.

This scheme shall extend up to seventy five percent of the rural population and up to fifty

percent of the urban population. Special provisions for food guarantee are made for

pregnant and lactating women and every child up to the age of fourteen years.

Chapter III of the Act ensures that “in case of non-supply of the entitled quantities of food

grains or meals to entitled persons under Chapter II, such persons shall be entitled to

receive such food security allowance from the concerned governments to be paid to each

person within time and manner prescribed.

Schedule III under Section 31 of the Act provides ways and means for the revitalization of

agriculture in the country through agrarian reforms including measures for securing

interests of small and marginal farmers, increase in investments in agriculture, ensuring

livelihood security to farmers and prohibiting unwarranted diversion of land and water

from food production etc. Along with revitalization of agriculture, access to safe and

adequate drinking water and sanitation, health care nutritional, health and education

support to adolescent girls along with adequate pensions for senior citizens, persons with


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disability and single women are also envisaged. Though hidden away in one of the

Schedules, the ambitious provisions of the Act are going to be Himalayan tasks for the

government. Tough policy decisions and budgetary allocations to back such decisions are

going to be difficult or near impossible given the international trade implications.

The Food Act is a guarantee for food availability or food security. The National Food

Security Act of India aims “to provide for food and nutritional security …….by ensuring

access to adequate quantity of quality food at affordable prices to the people to live a life

with dignity” and it has laid down provisions for advancing food security in India through

revitalizing agriculture. The Directive Principles of State Policy, while laying down guiding

principles for the governance of the country has specifically mentioned the growth of

agriculture as a priority.

The mandate of the constitution under Article 48 is to modernize agriculture and animal

husbandry on scientific lines and the National Food Security Act specifically calls for

revitalization of agriculture to advance food security. However today the policies of the

Central and State governments in India in field of agriculture or agrarian developments is

subject to the WTO Agreement on Agriculture.

There is an alarming growth of corporate sector in agriculture producing bitter harvests

across the country. Corporatization is defined as a process of reorganizing government

owned organizations to reflect the structure of a publically owned corporation. The

restructuring of the government entity is generally not publically traded with the

government being the sole shareholder.

Corporatization of agriculture means that fewer and fewer people (acting through

corporations) are controlling more and more of the production of food. The corporatization

of agriculture also means that small, family farms are also closing down. Millions of

landless agricultural labourers, are not even accounted for in this scenario. A lion’s share of

beneficiaries of the Food Act will be from this category.


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India is not safe from the invasion of corporatization of agriculture. Globalization and

liberalization are turning Indian agriculture into a business for profit under the aegis of the

WTO conditions. Agricultural subsidies and food subsidies are on the prohibited or frowned

upon list of the global market. The billions required to subsidize the food grains for more

than 70 crores of Indian is going go foul with the market mechanisms the government has

agreed upon with international community.

The massive migration of people from rural areas to the towns abandoning agricultural

sector for better employment and livelihood in cities is a call for critical analysis of the way

the nation is handling its agriculture. Alarming numbers of suicides by farmers across the

country adds to the urgency in the matter. Millions of landless agricultural laborers, who

are also mostly illiterate and unskilled, constitute the single largest work force in the

country. The ever expanding corporatization of agriculture ensures that these millions have

no more gainful employment, pushing them down the food pyramid to starvation.

The Food Act has no end of critics. The enormous financial burden it is going to impose on

the exchequer is frightening factor for the economy of the country. According to the

government's own calculations, the additional annual food subsidy implication will be

about Rs.23, 800 crores over the estimated food subsidy requirement under the existing

Public Distribution System and other welfare schemes. At the 2013/14 costs the Central

Government’s total food subsidy will be close to Rs.125, 000 crores annually.

According to a former Governor of the Reserve Bank of India the policies (the significant

increase in rural wages triggered by the MGNREGS and inflationary implications of the

Food Security Act) aimed at inclusive growth can stoke inflationary pressures at any rate in

the short-term. "This will create demand pressures, which will inevitably spillover to market

prices of food grains. Furthermore, the higher food subsidy burden on the budget will raise

the fiscal deficit, exacerbating macro level inflationary pressures."

The WTO Director General, Roberto Azevedo, echoed the worry of the international

business when he stated that India will soon be breaching their Aggregate Measurement of


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Support (AMS) commitments to WTO due to its new food security programme. He stated

that some countries have expressed concern over the procurement and distribution of

highly subsidized food grains.

Mr. Azevedo wanted India to work out a strategy on its food security law ahead of the Bali

Ministerial Meeting of the WTO. He said that India should consider the 'Peace Clause'.

Under the Agriculture Agreement, the Peace Clause protects subsidies awarded by

countries who comply with the agreement, from being challenged under other WTO

agreements. Although it expired in 2003, some countries want it extended, while others

want agriculture to be brought under general WTO discipline that deals with a state's ability

to act against subsidies. Negotiations for a deal at the Bali meet were stuck over the tenure

of an interim resolution on the demand by G-33 developing countries on food security.

While the G-33 is demanding the tenure of the peace clause to be 10 years, developed

countries such as the US are ready to accept only a 2-3 year period.

Today food is treated as profit making commodity in trade and commerce. A commodity is

something useful that can be turned to commercial or other advantage or benefit. Food

should be treated as human right that it is and not as a commodity. Over-commoditization

of the global food supply is one of the most critical root causes of food insecurity.

Speculation on food as a commodity for profit keeps food out of the reach of the poor.

There is an alarming growth of corporate sector in agriculture producing bitter harvests

across the country. The massive migration of landless labourers from rural areas to the

towns abandoning agricultural sector for better employment and livelihood in cities is a call

for critical analysis of the way the nation is handling its agriculture. Alarming numbers of

suicides by farmers across the country adds to the urgency in the matter. It is in this

background that one studies the Food Act and its provisions for the advancement of

agriculture.


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The National Food Security Act, 2013, is touted to wipe out hunger from the face of India

and guarantee food security to all people. This grand objective is to be achieved through

revitalization of agriculture. Objectives of the National Food Security Act, 2013 vis-à-vis

globalization and agricultural corporatization by the Government of India in tune with the

demands of WTO seem incompatible.

The latest Asia Development Bank Report on Social Protection in Asia covering 35

countries, where it compares India with the other 18 lower middle income countries in Asia.

According to the report in lower middle income countries expenditures on social insurance,

social assistance, and labour market programmes are, on average, 3.4 per cent of GDP.

India’s is a mere half of that at 1.7 per cent. Even that low level is reached largely because of

MGNREGA, not existing food security costs. Among low income countries, the Kyrgyz

Republic (whose GDP per capita is only $871 (2009)), invests eight per cent of GDP in social

protection. Upper middle income countries spend four per cent of GDP on average, and

high income countries spend 10.2 per cent. Japan spends a massive 19.2 per cent of GDP on

social protection and China 5.4 per cent. Singapore spends more than twice as much as

India, at 3.5 per cent of GDP.

The media has criticized the cost of the National Food Security Act as excessive. While some

called it as a “money guzzling measure” and others viewed it as “populist measures.” A

former Union Finance Minister branded the Act as “senseless welfarism.” The Financial

Times warned “This new spending will increase India’s fiscal deficit” and The Economic

Times warned that the Act endangered the fiscal deficit target. One non-executive director

of Tata Steel argued “Food security is important but the government needs to be able to

generate enough wealth in the country to be able to afford food security.” The

Confederation of Indian Industry (CII) declared “Under the present economic situation, the

government can hardly afford to allow the fiscal deficit roadmap to be compromised in any

way.”

However these criticisms are highly exaggerated to portray the Act as unaffordable.

Currently India spends about 0.9 per cent of GDP on food subsidies, and with the arrival of

the Food Act that will rise to a little less than 1.25 per cent. If feeding its citizens is a priority


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for the nation then the additional expenditures can be adjusted by cuts in some other

sectors. We have to keep in mind that healthy workers are essential for sustained economic

growth — as well as human development.

To meet the mandate of the Food Act, the Central and State governments need to procure

a lot more food grain than they do now from our farmers and also employ imports. To be

self-sufficient in meeting food security requirements our farmers must have an incentive to

produce more: they will look for higher procurement prices and access to better farming

inputs. The Rangarajan Committee, reviewing the National Advisory Council’s version of

the law, has suggested India should procure only 30 per cent of the country’s total

production from farmers or it will result in a “distortion of food prices in the open market.”

Knowing the factual position on procurements from farmers, food imports are here to stay.

India cannot give incentives to its farmers without falling foul of its international

commitments. If it still goes ahead, the West is entitled to retaliate with crippling trade

countermeasures. Since the developed countries do not cut their agro-subsidies, India will

also face cheap food imports muscling domestic farmers out of business.

If India starts buying grains from its farmers at well above international prices, then it acts

as an implicit incentive to the local farmer to produce more than he otherwise would. This

would squeeze out global grain suppliers. However India should contest argument on the

ground that persistently high domestic inflation makes it imperative to raise the Minimum

Support Price (MSP) for farmers from time to time. India should invoke clause 18.4 of the

Agreement on Agriculture (AoA) which says that “due allowance shall be given” to the

inflation factor while assessing whether the MSP violates the AoA.

One of the substantive provisions of International Food Security Treaty states in its

Fundamental Principles that free market structures are not sufficient to assure global food

security; basic guarantees of individual access to food are needed. International cooperation

and assistance may be necessary in order to implement such access in Low Income Food


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Deficit countries. It is also stated therein that food may never be used as a weapon to gain

political or military advantage either within a state or as an instrument of foreign policy.

The successful implementation of the Food Act is dependent on international co-operation

and also the guarantee that the nations arms are not twisted as part of the foreign policies of

the developed nations.

There can be no two opinions about the need for the Food Security Act. All the arguments

should be the strategies in implementing the ideals enshrined therein. Financial feasibility

and international business interests are not and should not be reasons why the Act fails to

wipe out hunger from the face of India. Revitalization of Indian Agriculture in the face of

globalization and corporatization of agriculture is a serious concern that ought to be

handled with utmost seriousness.


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LEGISLATIVE COMMENT

THE LOKPAL BILL, 2013

S.C. ROY

INTRODUCTION:

The long awaited Lokpal Bill, passed in the Parliament in December 2013 has brought hope

of corruption free India, to the citizen. The Lokpal Bill 2013 i seeks to provide a mechanism

to erase corruption in the public governance and the matters connected thereto. The term

Lokpal (The people’s protector and caretaker) was coined by Lakshmimal Singhvi on 13th

April 1963 during a parliamentary debate about grievance mechanism. The Lokpal is the

Indian version of ‚Ombudsman ‚a Scandinavian ii word for a ‚grievance man ‚. It is a

coincidence that the son of L.M. Singhvi, Dr. Abhishek Manu Singhvi, heading The Standing

committee of parliament drafted the present bill. The historic debate on administrative

reform in 1963 has taken us back to think that even in the early days of independence

corruption was an issue though it was in a nascent stage. The present bill was tabled in

parliament in 1968, 1971, 1985, 1989, 1998, and 2001, 2011-2012 and finally it could be

passed in 2013.

This historic struggle to constitute Lokpal in Centre and Lokayukta in states shows the great

concern of the people against corruption. Here it is an appropriate place to know what

corruption is! Aristotle first used the term corruption. The term corruption comes from the

word ‚corrupt‛ which means ‚guilty of dishonest practices‛ ‘ ‚lacking integrity ‚, ‚infected ‚,

‚tainted‛, ‚ debased in character ‚’ where as corruption means‛ to destroy the integrity of ‚.

‚cause to be dishonest ‚ , ‚lower morality ‚ , ‚rotten ‚, ‚spoiled ‚, ‚contaminated‛ etc.

Thus ‚corrupt ‚means ‚utterly broken ‚, ‚valueless ‚. Later Cicero added the terms ‚bribe

and abandonment of good habits‛. It is an illegitimate use of public power to benefit the

private interest. The democracy depends upon The Government and its public offices

through which the welfare schemes reach to the last person. The welfare schemes are


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administered by the chain of human system who are responsible for the development of the

all.

Here starts the endless saga of dishonest monopoly and misuse of power. Since the personal

gain or having more to oneself than others or take a drop out of the pot is inherent in

human nature. No one is free from ‚discontentment‛. Corruption is rife like blade of grass ‚.

As the length and breadth of the blade of grass varies, the corrupt practices also vary from

petty to systemiciii. Even the person on small rung is also indulged in receiving bribe and

malpractices. The discontentment hankering after wealth and power, barbaric nature,

callousness, fearlessness, greed, inhuman and unsympathetic approach are the root cause of

corruption. Thus when these causes find reasonable climate to grow, the result is hue and

cry all around i.e. in governance and public service and flows to private service also in the

name of ‚better service‛. Thus the question raised by our Gurudev Rabindra Nath Tagore,

where the mind is without fear and where the head is held high ………………………..

Houndsiv in the mind as even the judicial system is not free from smell.

As the nature of human being is to help their kith and kin violating rules/regulations

/morals, even crushing the voice of the conscience. Hence favoritism and nepotism is

rampant. It also includes casteism and religious favoritism. More so, the political favoritism

has spread everywhere the discretionary power is applied without wisdom which is utter

violation of rule of law /morals/ values/ which impairs the faith in the system. Therefore the

Lokpal has responsibility for the restoration of faith in public offices by creating and

environment of ‚zero tolerance in corruption ‚.

ANTI CORRUPTION LAWS IN INDIA:

Since discontentment and greed is an inherent character of human being, therefore legal

provision has been made available to curb such tendencies. The Indian Penal Code is the

forerunner. The Penal Code is against dishonest misappropriation of propertyv, criminal

breach of trustvi, criminal breach of trust by servant or clerkvii , criminal breach of trust by

public servant, or banker, merchant agent viiidishonestly receiving the propertyix , cheatingx,


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dishonest concealment of factxi, etc. The Prevention of Corruption of Corruption Act, 1988

specifically has been enacted consolidating and amending the law relating to the prevention

of corruption. This is the reason that section 2(c) of the Actxii has enumerated and included

officials under the heading ‚public servant‛, despite broad provisions under section 21 of the

Indian Penal Code. Section 2(c) clause (xi)xiii in the Prevention of Corruption Act has added

the higher academic institution and highlighted corruption therein. Likewise in section 2(c)

(xii)xiv seems to be additional corollary extending the ambit of private institutions receiving

the grant from The UGC or similar institutions anyway, under the purview of the

Corruption Act. Thus section 2(c) of the Act enumerates any person remunerated by the

government, any person in the service or pay of local authority, in the service of corporation

Judge or adjudicating functions; performing any duty in connection with the administration

of justice; arbitrator, persons engaged in the election process, persons performing any

public duty, office bearers of the cooperative society, chairman, member or employee of the

service commission etc. The Actxv has elaborately explained under Chapter III the nature of

the offence i.e. corruption in the term of ‚gratification‛ (u/s 7, 8, 9), acceptance of valuable

things without consideration, criminal misconduct (u/s 11, 12, 13), as well as habitual act of

corruption. The ‚Act‛ has provision for the appointment of special judges (u/s 3) and the

offender shall be prosecuted as per the provisions of Cr.P.C. 1973. The special judge shall be

deemed to be a magistrate also as per section 326 and 475 of Cr.P.C. 1973.

The Right to Information Act 2005 has minimized corruption up to the extent

of disclosure of the information and the action by the CIC (Chief Information Commission).

But the accused/public servants with the fascist character harass the whistleblowers. This is

the reason that this ‚Act‛ is not in a position to bring transparency in public service.

Likewise The Prevention of the Money Laundering Act 2002, Central Vigilance Commission

Act 2003 have been created to curb corruption. Thus, despite these provisions available,

corruption in public office is a rule. Now the common man has no relief without any type of

gratification to the public officer. This hampered development hence social justice is crying

for ‚New Incarnation of Lord Krishna ‚. Hence, in this utter be- wilderness, the incarnation


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of Lokpal in new form after the movement led by ‚Shree Anna Hazare ‚ has come in the

shape of ‚Act No.1 of 2014 ‚ as a new year’s gift to the citizens of India.

THE LOKPAL AND LOKAYUKTA ACT, 2014:

The preamble of the ‚Act‛ expresses the object and reasons of bringing this bill to ensure

‛justice to all‛ by ‚punishing the act of corruption‛, and prompt and fair investigation and

prosecution. As India has ratified the United Nations Convention against corruption. The

Act extends to the whole of India. The ‚Act‛xvi has included The Prevention of Corruption

Act 1988 which is a substantive legislation to combat corruption. Therefore the term

‚Complaint‛ u/s 2(e) of the ‚Act‛ has the same meaning here also. It also incorporates the

Delhi Police Establishment, Act 1946, The Central Vigilance Commission Act 2003, and the

Cr.P.C. 1973. The term special court u/s 2(e) has the meaning as in The Prevention of

Corruption Act1988. The term Public servants, u/s 2(o) has read with section 14 of the ‚Act‛

has excluded the jurisdiction exercisable by any court or any other authority under The

Army Act 1950, The Air Force Act 1950, The Navy Act 1957 and the coast Guard Act 1978.

It has included even the Prime Minister xviiof the Union and other members of either of the

houses of the Parliamentxviii. The term ‚Lokpal‛ has been defined as a body established u/s 3,

which shall consist of chairman and such members, not exceeding eight out of whom fifty

percent shall be judicial members. The Lokpal shall constitute two wings i.e. Inquiry wingxix

and prosecution wing xx headed by The Director of Inquiry and Director of Prosecution

respectively.

The director of prosecution has responsibility to file case as per the direction of the Lokpal

before the ‘special court’ and take all necessary steps in respect of the prosecution of public

servants in relation to any offence punishable under the prevention of corruption Act

1988xxi. The inquiry wing of the Lokpal shall consist of Delhi police as well as the central

vigilance commission the purpose of any preliminary inquiry or investigation is to furnish

information or produce documents relevant to the offence of corruption mentioned under


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prevention of corruption Act 1988. The Lokpal has been authorized to order for initiation of

the prosecution and no court shall take cognizance of such offence except with the previous

sanction of Lokpalxxii. Hence the Lokpal itself has been authorized to decide the complaint

on the basis of inquiry and investigation as referred to the ‘special court’ or not. But nowhere

in the Act has been mentioned about the CBI (central bureau of investigation). Whether the

CBI has been abolished? Whether CBI will continue to function under the aegis of the

central government? Whether there will be two channels or wings to investigate the

corruption cases as the CBI has been doing? What about the CBI court? All these answers

are absent in this Act. More so, the Lokpal has been empowered not only to decide the

matter whether instituted to special court or not at the same time, it may recommend the

government to transfer or suspend the public servant also. Although, there is adequate

provision of removal of the chairman or any member from his office by order of the

president on the grounds of ‘misbehavior’xxiii . But the term ‘misbehavior’ has not been

explained. The completion of inquiry has to be made within 30 daysxxiv and trial within a

yearxxv. But the Lokpal has been given appellate authority in respect of appeal arising out of

any other law for the time being in force providing for delivery of public grievances by any

public authority in cases where the decision contains findings of corruption under the

prevention of corruption Act 1988xxvi has taken away the jurisdiction of supreme court but

the provisions under s. 57 is contradictory where the Act says that ‘the provisions of this Act

‘ shall be in addition to, and not in derogation of , any other Law for the time being in force

? More so, the Lokpal shall not inquire or investigate into any complaint, if the complaint is

made after the expiry of a period of seven years from the date on which the offence

mentioned in such complaint is alleged to have been committedxxvii . The Lokpal Act has

also taken away the jurisdiction of civil court in respect of any matter, which the Lokpal is

empowered by or under this Act to determinexxviii.

CONCLUDING REMARKS:

With the progress of democratic setup of governance, umpteen number of welfare schemes

and implementation machineries are quite obvious, since human beings have inherent

discontentment and greed, the public office and authority provide the opportunities of


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gratifications of variable dimension, coercion, victimization, exploitation etc. The term

corruption expressed in the ‚Indian Penal Code ‚ In terms of offences and in the prevention

of corruption Act1988 under chapter 3 , from Ss. 7-16. One just the result of the decrease in

morals and disintegration of personality. Even the Lokpal Act is silent about the act of

corruption to be ‘nipped in bud’. This Act has adopted the same procedure which is available

under Cr.P.C , same legislation the prevention of corruption Act 1988 , the same enquiry

and the investigation Agency the ‚Delhi police and Vigilance‛ and the same ‘special court’

under the prevention of corruption Act, 1988 . It has extended the sphere of public servant

including the ‘prime minister of India’ but it has excluded the judiciary. More so, it has

taken away the appellate authority of the Supreme Court. Thus, in this country there will be

two parallel apex court. The CBI has not been included in the investigating wing where as

the CVC depends only on CBI. The limitation period mentioned under section 53 of the Act

also weakens the hope of the citizen for corruption free governance.

Here, it may be submitted that the act of corruption has become the ‘way of life’ in the

Indian society as there is no system free from this evil; although the jurisdiction has been

expanded in the Act but the procedural gain will remain the subject of moot also as the

Lokpal has right to decide whether the case should be filed or not. Thus the director of

inquiry and investigation may function under ‚Lokpal‛ as today CBI functions under the

‚Ministry of Home Affairs and PMO ‚. Furthermore there is no provision of appeal to the

Supreme Court for the initiation or taking cognizance of the matter. Thus, it seems that the

provision is violative of Article 32 of the constitution which is itself a fundamental right.

Whether this Act is not taking away the same? Further, India has population of 130 crores,

how can the Lokpal headed by just 8 members deal with the large scale corruption cases.

Since corruption is not the subject matter of bribery or embezzlement only. It is related to

the violation of Article 14 i.e. Rule of law also. Thus in the name of discretionary power

corruption has become a common practice in all the institutions public, private, central or

state government. Corruption is unethical, immoral, illegal practices either for personal

gains or achievement or to provide gain to the kith/ kin, political members, criminals,

bureaucrats, etc. It is also violation of human rights by anyone who is in that capacity.


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Therefore the Lokpal Act requires to hit ‚act of corruption‛ from lower strata of

administration to upper strata. In this regard it is submitted that ‚administrative audit ‚at

each level of administration should be incorporated in the Lokpal Act. The administrative

audit report submitted to the Lokpal or Lokayukta should be the basis of prosecution, in

addition to the mechanism of ‚complain‛, enquiry and prosecution which is traditional

technique to curb the offenders which is not successful. At the same time the ‚human rights

audit‛ by the human rights commission can nip in bud the act of corruption in the public

offices. The financial audit which is held too late also requires to be ‚annual‛ by CAG

(Comptroller and Auditor General of India) in all the sectors (either private or public). The

audit in administration of justice is also required to curb corruption. Moreso, the audit of

political parties can make the election process fair and restore trust in the representatives

who are ultimately, role model as well as the source of confidence for unethical illegal

practices in the governance. Therefore, the Lokpal is just picking the fishes through

‚Fishing Rod‛, whereas it requires repair, renovation and if necessary demolition of

confidence of the offenders from the grass root level by ‚administrative, human rights and

financial audit‛ annually and prosecution as per the provision within the year. The

publication of the report in the print media and discussion on the screen can curb

corruption. The Act must incorporate the professionals and their bodies, corporate sectors

under its purview. The offenders have got such a confidence that they do not care breaking

the rules, norms, even their own conscience. They have no fear of even ‚God‛ on the other

hand, the common man has no confidence even to initiate the courage of rising voice

against the offenders. The employees have to suffer the wrath of the ‚Big boss‛ everyday. It

is the first rule that boss is always correct. The second rule is that if not correct, see the first

rule. The policies and the process of appointment are also subject of concern. Thus the

Lokpal and Lokayukta Act 2014 is just a new expression of the ‚old idea‛.

REFERENCE

i The Lokpal and Lokayukta Bill 2013, now the Lokpal and Lokayukta Act no 1 of 2014 got presidential act on

1-1-2014 ii Morris,S.D. (1991) ,Corruption and politics in Contemporary Mexico, University of Alabama Press, Tuscaloosa iii Systemic corruption means where corruption becomes rule rather than exception


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iv Geetanjali v S.403 of the I.P.C. deals with dishonest misappropriation of property vi S.406 I.P.C. vii S.408 I.P.C. viii S.409 I.P.C. ix S.412 I.P.C. x S.415 I.P.C. xi S.417 I.P.C. xii The Prevention of Prevention Act 1988 xiii S. 2(c) (xi) of the Prevention of Corruption Act 1988 reads as any person who is a vice chancellor or member

of any governing body, professor, reader, lecturer or any other teacher, or employee, by whatever designation

called, of any university and any person whose services have been availed of by any university or any other

public authority in connection with holding or conducting examinations. xiv S.2 (c) (xii) of The Prevention of Corruption Act 1988 reads as : Any person who is the office bearer of an

educational, scientific, social, cultural or other institution in whatever manner established, receiving or having

received any financial assistance from the central government or any state government, or local or other

public authority. xv The Prevention of Corruption Act 1988 xvi The Lokpal and Lokayukta Act 2014 xvii S.14(1) (a) xviii S.14(1) (b) and (c) xix S.11 of the Act xx s.12 of the Act xxi S.12(2) of The Lokpal Act 2014 xxii S.23(2) of The Lokpal Act 2014 xxiii S.37(2) of The Lokpal Act 2014 xxiv S.38(2) of The Lokpal Act 2014 xxvS.35(2) of The Lokpal Act 2014 xxvi S.49 Of The Lokpal Act 2014 xxvii S.53 of the Act xxviii S.54 of the Act


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www.rostrumlegal.in/journal Page A

INTRODUCTION TO THE CONTRIBUTORS

ALOKMISHRA_________________________________________________________

Professor, Amity Law School, GGSIP University, Delhi. With nearly three decades of

law teaching experience, he is an expert in public law.

ARUP PODDAR________________________________________________________

Associate Professor, The West Bengal National University of Juridical Sciences,

Kolkata. His areas of interest include Environmental Law, Agricultural Law, etc.

ATUL KUMAR PANDEY_______________________________________________

Assistant Professor, National Law Institute University, Bhopal. An engineering

graduate of IIIT Allahabad, along with MBL, Cyber Law constitutes his area of

specialization.

CHINTAMANI ROUT__________________________________________________

Associate Professor of Law, North-Eastern Hill University, Shilong, Meghalaya

(NEHU). With two decades of teaching experience in several premier institutions of

repute, Dr. Rout holds specialization in diverse areas of public law.

DEBASIS PODDAR_____________________________________________________

Assistant Professor, National University of Study and Research in Law, Ranchi;

Former Lecturer, National Law University, Jodhpur.

DEEPA KANSRA____________________________________________________

Assistant Professor, The Indian Law Institute, New Delhi. A prolific author, she

possesses books and articles to her credit. Her recent book on Preamble to the

Constitution, earned widespread apprehension in legal fraternity.


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DIPA DUBE____________________________________________________________

Dr. Dipa Dube, Associate Professor, Rajiv Gandhi School of Intellectual Property Law,

IIT-Kharagpur. Criminal Law constitutes her area of specialization. Her recent book

on rape laws earned appreciation from legal fraternity.

GARGI CHAKRABARTI________________________________________________

Assistant Professor, National Law University, Jodhpur. Intellectual Property is her

area of specialization. Before joining in NLUJ, she was associated with premier

institutions including NLSIU Bangalore.

GEORGE K. JOSE______________________________________________________

Associate Professor, School of Law, Christ University, Bangalore. With two decades of

experience in law practice, procedural laws constitute his areas of interest.

GOURISHWAR CHOUDHURI__________________________________________

He is engaged in West Bengal State Education Service. Assistant Professor of History,

Maulana Azad College, under University of Calcutta. Medieval Indian History

constitutes his area of specialization.

JAYANTA KUMAR LAHIRI____________________________________________

The author is LLM,, Ph.D was Dy. Director General, OFB under Ministry of Defence

Production. He is Guest Lecturer in Law in Calcutta University and authored the

book ‘Lahiri’s Lectures on Intellectual Property Law.

K. N. C. PILLAI________________________________________________________

Former Director, National Judicial Academy, Bhopal. Former Director, Indian Law

Institute, New Delhi. Former Dean, School of Legal Studies, Cochin University of

Science and Technology. Initiated his career in law practice, Supreme Court of India.

Prof. Pillai is a veteran academician with specialization in Criminal Law.


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MALAY ADHIKARI____________________________________________________

Ph.D. Candidate in Centre for International Legal Studies, Jawaharlal Nehru

University; M.Phil. (Space Law) & M.Sc. (Physics). Previously, he was a practicing

advocate in Kolkata.

MANISHA CHAKRABORTY____________________________________________

Ms. Manisha Chakraborty, Research Scholar, Rajiv Gandhi School of IP Law, IIT

Kharagpur.

MARKUS STARKL_____________________________________________________

Dr.Markus Starkl is a Senior Researcher with the Vienna based Centre for

Environmental Management and Decision Support. He is currently co-chair of the

specialist group of Sanitation and Water Management in developing countries of the

International Water Association.

NIDHI CHAUHAN_____________________________________________________

Assistant Professor, School of Law, KIIT University, Bhubaneswar. Business Laws

constitute her areas of specialization. Her works got published in Pezzottaite Journal,

India International Journal of Juridical Sciences and GSTF (Global Science and

Technology Forum) Journal of Law and Social Sciences, Singapore.

P. SAKHTIVEL_________________________________________________________

Mr. P. Sakthivel is Assistant Professor at the Tamil Nadu Dr. Ambedkar Law

University since 2008. He obtained his Masters in Law from the University of Madras

in 2004 and earlier received Master of History from Annamalai University during

2002. His research focuses include Agriculture, Water and Sanitation Laws,

Environmental Laws and Human Rights. He has participated and presented more

than 30 papers in various national and international conferences. He has coordinated

two national seminars and two State Level workshops.


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S. AMIRTHALINGAM__________________________________________________

Mr. S. Amirthalingam is an Assistant Professor at the Tamil Nadu Dr. Ambedkar Law

University since November 2004. He obtained Masters in Law from University of

Madras in June 2004. His research focuses include Environmental Laws, International

Trade Law and Constitutional Law. He participated and presented 40 papers in

various national and international conferences. He has coordinated two national

seminars and one State Level workshop.

S. C. ROY______________________________________________________________

Associate Professor, Chanakya National Law University, Patna. With two decades in

law teaching in several institutions of repute, he is a versatile personality in legal

academics.

TAPAN R. MOHANTY_____________________________________

Associate Professor of Sociology, National Law Institute University, Bhopal. He is a

life member of Indian Sociological Society and Indian Society of Criminology

besides being a member of Research Committee on Sociology of Law of

International Sociological Association (Madrid, Spain).

ALKEMIAL LEGAL EDUCATION VENTURES PVT. LTD.

B-3, VARDHMAN GREEN PARK ASHOKA GARDEN

BHOPAL, MADHYA PRADESH

[email protected]


Rostrum's Law Review, Volume I, Issue IV

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