Rostrum's Law Review, Volume I, Issue IV by Anurag Parihar

PUBLISHED QUARTERLY VOLUME: ONE ISSUE: Four YEAR: 2013

ISSN: 2321 - 3787

Fourth Issue

ROSTRUM’s LAW REVIEW

ISSN: 2321 - 3787

SPEAK UP PUBLICATIONS A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.

ROSTRUM’s LAW REVIEW 

Volume : I



Issue: IV

“Fourth” - “December- 2013”

Mode of Citation: “RLR (4) 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.



Take advantage of the free e-subscription and receive the Journal in your To subscribe visit: www.rostrumlegal.in/journal



2839 users follow Rostrum on Facebook. Look for our page to stay updated! ROSTRUM



inbox!

Rostrum’s Law Review ISSN: 2321 - 3787

TABLE OF CONTENTS FOREWORD BY K. N. C. PILLAI

NOTE FROM THE DESK OF GUEST EDITOR DEBASIS PODDAR

A. SPECIAL ARTICLE: EXCEPTIONS UNDER MORAL RIGHT OF THE AUTHOR - AN ANALYSIS JAYANTA KUMAR LAHIRI

B. ARTICLES: PROBLEMS OF RURAL CONSUMERS AND THEIR EMPOWERMENT THROUGH PANCHAYATI RAJ INSTITUTIONS ALOK MISRA

E-CONTRACTS: MAIL BOX RULE AND LEGAL IMPACT OF THE INFORMATION TECHNOLOGY ACT, 2000 ATUL KUMAR PANDEY

PUBLIC INTEREST LITIGATION (PIL): EFICACY AND DANGERS CHINTAMONI ROUT

REVISITING THE CONCEPT OF PAROLE IN INDIA DIPA DUBE AND MANISHA CHAKRABORTY

DEVELOPING SPACE LAW EDUCATION IN INDIA: SOME PROPOSALS MALAY ADHIKARI

A STUDY ON LAW RELATING TO GROUNDWATER RECHARGE IN INDIA P. SAKTHIVEL, S. AMRITHALINGAM AND M. STARKL

www.rostrumlegal.in/journal

Rostrum’s Law Review ISSN: 2321 - 3787

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. I NTRODUCTION TO CONTRIBUTORS

www.rostrumlegal.in/journal

FOREWORD I am thrilled that Rostrumâ&#x20AC;&#x2122;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 | 1

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 Reviewa 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.

Page | 2

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 jurists i. 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 faĂ§ade 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 www.rostrumlegal.in/journal

Page 3

Rostrum’s Law Review ISSN: 2321 - 3787

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

enjoys the right

‚to object

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

www.rostrumlegal.in/journal

Page 4

Rostrum’s Law Review ISSN: 2321 - 3787



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 court v 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

www.rostrumlegal.in/journal

Page 5

Rostrum’s Law Review ISSN: 2321 - 3787

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. www.rostrumlegal.in/journal

Page 6

Rostrum’s Law Review ISSN: 2321 - 3787

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

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 The term ‘author’

however, has to be interpreted in the light of definition given

in the Copyright Act xi . 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 right xii 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

www.rostrumlegal.in/journal

Page 7

Rostrum’s Law Review ISSN: 2321 - 3787

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.

Austin’s proposition that law must be backed by commands sits comfortably with these positivist. 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 ii

www.rostrumlegal.in/journal

Page 8

Rostrum’s Law Review ISSN: 2321 - 3787

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 selfgovernment." (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 selfgovernment. 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

www.rostrumlegal.in/journal

Page 9

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 10

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. Articleâ&#x20AC;&#x201C;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,

www.rostrumlegal.in/journal

Page 11

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 12

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 13

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 14

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

(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.

www.rostrumlegal.in/journal

Page 15

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 16

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 â&#x20AC;&#x161;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.â&#x20AC;&#x203A;

www.rostrumlegal.in/journal

Page 17

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 18

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

usage

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

www.rostrumlegal.in/journal

Page 19

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 20

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 NGOâ&#x20AC;&#x2122;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 citizenâ&#x20AC;&#x2122;s charter by the service providers is necessary for the success of the consumer movement.

www.rostrumlegal.in/journal

Page 21

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 22

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 23

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 24

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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?

www.rostrumlegal.in/journal

Page 25

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 26

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 27

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 28

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 wellestablished 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

www.rostrumlegal.in/journal

Page 29

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 30

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 31

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 wellknown 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

www.rostrumlegal.in/journal

Page 32

Rostrum’s Law Review ISSN: 2321 - 3787

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

failure

transmission

which

occur

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

www.rostrumlegal.in/journal

Page 33

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

was felt, that at the time of posting the letter, there would be a greater chance of a â&#x20AC;&#x2DC;meeting of mindsâ&#x20AC;&#x2122; 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

www.rostrumlegal.in/journal

Page 34

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 â&#x20AC;&#x2DC;receiptâ&#x20AC;&#x2122; 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,

www.rostrumlegal.in/journal

Page 35

Rostrum’s Law Review ISSN: 2321 - 3787

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‛.

www.rostrumlegal.in/journal

Page 36

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Purshottamdas x 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 â&#x20AC;&#x2DC;checksumâ&#x20AC;&#x2122;. Therefore, when dealing with click wrap contracts, the postal rule is not applicable as compared

www.rostrumlegal.in/journal

Page 37

Rostrum’s Law Review ISSN: 2321 - 3787

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

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

www.rostrumlegal.in/journal

Page 38

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 39

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 40

Rostrum’s Law Review ISSN: 2321 - 3787

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 Ecommerce 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

www.rostrumlegal.in/journal

Page 41

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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, â&#x20AC;&#x161;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

www.rostrumlegal.in/journal

Page 42

Rostrum’s Law Review ISSN: 2321 - 3787

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 email, the data (in this case acceptance) can be transmitted from any where by the email account holder. It goes to the memory of a 'server' which may be located

www.rostrumlegal.in/journal

Page 43

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 44

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.â&#x20AC;&#x203A; 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.

www.rostrumlegal.in/journal

Page 45

Rostrum’s Law Review ISSN: 2321 - 3787

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.

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

www.rostrumlegal.in/journal

Page 46

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 47

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 1980sâ&#x20AC;&#x2122; 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 www.rostrumlegal.in/journal

Page 48

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 49

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 50

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 51

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 52

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

Johari, J.C., Indian Government & politics Fourth edition 1979, Vishal publication Delhi- Jallandhar.

Jain, M.P, Indian constitutional law, Wadhwa, Nagpur 2005.

Pande, G.S Constitutional law of India, Eleventh edition, 2009 university Book House, Jaipur.

Pandey ,J.N., Constitutional law of India C.L.A Allahabad,2006

Pylee, M.V., An introduction to the Constitution of India, New Delhi,1998

P. Bhasker Mohan, Public Interest Litigation, Published in AIR, 1993 Journal Section, p.17

RAI Kailash, Public Interest Lawyering, Legal Aid and Para-Legal Services, Central Law Publication,2000

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

www.rostrumlegal.in/journal

Page 53

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 54

Rostrum’s Law Review ISSN: 2321 - 3787

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 crime vi.

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 wrong ix.

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 system x. 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

www.rostrumlegal.in/journal

Page 55

Rostrum’s Law Review ISSN: 2321 - 3787

are gratuitous acts by a merciful executive xi. 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.

www.rostrumlegal.in/journal

Page 56

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 57

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 authority xxii. 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 application xxiii. 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

www.rostrumlegal.in/journal

Page 58

Rostrum’s Law Review ISSN: 2321 - 3787

Penological innovation in the shape of parole is claimed to be a success in rehabilitation and checking recidivism xxiv. 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.‛

www.rostrumlegal.in/journal

Page 59

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

State

Prison

Released

Population

parole

(Convicts)

on Parole Absconde d

Punjab

7526

6646

Maharashtra

7952

1706

333

Uttar Pradesh

28051

113

Rajasthan

6159

1977

Himachal

942

464

Pradesh 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

www.rostrumlegal.in/journal

Page 60

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 61

Rostrum’s Law Review ISSN: 2321 - 3787

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 Punjab xxxix. 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

www.rostrumlegal.in/journal

Page 62

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 office xlii. 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 preplanned 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. â&#x20AC;&#x161;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.â&#x20AC;&#x203A; xlv However, 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 action xlvi. 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

www.rostrumlegal.in/journal

Page 63

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. â&#x20AC;&#x161;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.â&#x20AC;&#x203A; 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:

www.rostrumlegal.in/journal

Page 64

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 circumstances li. 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

www.rostrumlegal.in/journal

Page 65

Rostrum’s Law Review ISSN: 2321 - 3787

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;

www.rostrumlegal.in/journal

Page 66

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. www.rostrumlegal.in/journal

Page 67

Rostrum’s Law Review ISSN: 2321 - 3787

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-indiahow-503415.htm (Accessed on 18th Jan, 2012). ii BibiJagirKaur gets four week Parole, The Times of India, Aug.9, 2012 http://articles.timesofindia.indiatimes.com/201208-09/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-bittimohanty (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. vii JaytilakGuha Roy, Prisons and Society: A Study of the Indian Jail System (Gian Publishing House Delhi 1989) p.169. viii E ILEEN BALDRY , KEY PART OF THE SENTENCE BENEFITS EVERYONE BY , T HE S UNDAY MORNING HERALD , OCTOBER 29, 2009WWW. SMH. COM. AU/ NATIONAL/ KEY- PART -OF-THE-SENTENCE- BENEFITS-EVERYONE-20091028TH HL1 K. HTML (ACCESSED ON 13 J AN , 2012). ix J. C. Chaturvedi, Penology and Correctional Administration (Isha Books New Delhi 2006) p.8. x Comment, ‘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. xii John 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. xv Comment, ‘The Parole System’, University of Pennysylvania Law Review Vol.120, 1971, pp.282-377, at p.288. xvi Id. xvii Menechino v. Oswald, 430 F.2d 403, 407 (2d Cir. 1970). xviii 387 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. xxi Parole/Furlough Guidelines, Government of National Capital Territory of Delhi, Home Department, 2010. xxii ibid. 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). xxiv Krishan Lal v. State of Delhi AIR1976SC1139 xxv State 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 xxviii Gudikanti 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 xxxiii ibid. xxxiv AIR 2010 SC 2352 xxxv Jessica 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-paroleapplication (Accessed on Nov.13, 2012).“In September 2009, Sharma was released from jail on a 30-day parole to

www.rostrumlegal.in/journal

Page 68

Rostrum’s Law Review ISSN: 2321 - 3787

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 familyrun 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 20 th 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 14 th 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 xliv 1997 CriLJ 3180; See, Mohinder Singh v. State of Punjab 2012 CrLJ 1559. xlv Poonam Lata v. M.L. Wadhawan 1987 Cri LJ 1924. xlvi Sunil Fulchand Shah v. Union of India &Ors.AIR 2000 SC 1023. xlvii MANU/RH/0221/2012 xlviii Roduv. State of Rajasthan MANU/RH/0198/ 2012; Gulab v. State of NCT of Delhi MANU/DE/0638/2010 xlix 1985 Cri.L.J 1202 l Somesh Gupta v. State of NCT 2010 (1) Crimes 864. li See, Varun v. State of Haryana MANU/PH/0765/2010.

www.rostrumlegal.in/journal

Page 69

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 70

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Centre 1, The InterUniversity Centre for Astronomy & Astrophysics 2 (Pune), Institute of Astrophysics3 (Bangalore), Raman Research Institute4 (Bangalore), Aerospace engineering departments (IITs/Engineering colleges or Universities), Indian Institute of Space Science & Technology 5 (Thiruvananthapuram), Indian Institute of Remote Sensing 6 (Dehradun), Institute of Aerospace Medicine7 (Bangalore), some law departments of universities including national law schools all over India, Institute of Defence Studies & Analysis 8 (New Delhi), Observer Research Foundation9 (New Delhi), Centre for Land & Warfare Studies 10 (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 Affairs 18 (New Delhi), Confederation of Indian Industries19 (CII), Society of Indian Aerospace Technologies & Industries 20 (Bangalore), Association of Geospatial Industry21 (New Delhi), Indian Society of International Law22 (New Delhi), Indian Society of Remote Sensing 23 (Dehradun), Indian Society of Geomatics24, Indian National Cartographic Association25 (Hyderabad), Indian Society of Aerospace Medicine26 (New Delhi), National Space Society (India Chapter) 27,

www.rostrumlegal.in/journal

Page 71

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

Telemedicine Society of India28 (Lucknow), The Indian Planetary Society29 (Mumbai), Moon Society India30 (Mumbai), the Bangalore Astronomical Society31, Regional Sky Watchersâ&#x20AC;&#x2122; Association like Kolkata32, Kalpana Chawla Centre for Space & Nanosciences 33 (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 India 35 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

www.rostrumlegal.in/journal

Page 72

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 7 th 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 Keplerâ&#x20AC;&#x2122;s laws of planetary motion 9, 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 diamonds 10 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

www.rostrumlegal.in/journal

Page 73

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

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

www.rostrumlegal.in/journal

Page 74

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 â&#x20AC;&#x153;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 activitiesâ&#x20AC;? 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.

www.rostrumlegal.in/journal

Page 75

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 76

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

(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

www.rostrumlegal.in/journal

Page 77

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 nonanthropocentric 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

www.rostrumlegal.in/journal

Page 78

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 79

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 80

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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)

http://www.iucaa.ernet.in/ (Accessed on 25-05-2013)

http://www.iiap.res.in/ (Accessed on 25-05-2013)

http://dspace.rri.res.in/ (Accessed on 25-05-2013)

http://www.iist.ac.in/ (Accessed on 25-05-2013)

http://www.iirs.gov.in/ (Accessed on 25-05-2013)

http://www.isam.in/iam.html (Accessed on 26-05-2013)

http://www.idsa.in/ (Accessed on 26-05-2013)

http://www.observerindia.com/ (Accessed on 26-05-2013)

10. http://www.claws.in/ (Accessed on 26-05-2013)

www.rostrumlegal.in/journal

Page 81

Rostrum’s Law Review ISSN: 2321 - 3787 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-formetals.html (Accessed on 30-05-2013)

www.rostrumlegal.in/journal

Page 82

Rostrum’s Law Review ISSN: 2321 - 3787 “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

www.rostrumlegal.in/journal

Page 83

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 84

Rostrum’s Law Review ISSN: 2321 - 3787

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 groundwater vi.

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 subject viii 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

www.rostrumlegal.in/journal

Page 85

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 country xv. 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 country xvi.

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

www.rostrumlegal.in/journal

Page 86

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Unionâ&#x20AC;&#x2122;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 agenda xvii. The groundwater to be treated as a community resource held by the state under public trust doctrine, and the existing groundwater laws to be modified xviii. 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,

www.rostrumlegal.in/journal

Page 87

Rostrum’s Law Review ISSN: 2321 - 3787

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 structures xxi. 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 priority xxii. 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 obligations xxiii. (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 concern xxiv. 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 force xxvii . Similarly, Plachimada groundwater pollution might have been resolved properly if the State groundwater law is properly enforced xxviii.

www.rostrumlegal.in/journal

Page 88

Rostrum’s Law Review ISSN: 2321 - 3787

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 schemes xxix. 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.‛ www.rostrumlegal.in/journal

Page 89

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Act xxxiv. 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 PCBâ&#x20AC;&#x2122;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

www.rostrumlegal.in/journal

Page 90

Rostrum’s Law Review ISSN: 2321 - 3787

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 States xxxix. 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 time xlii. 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

www.rostrumlegal.in/journal

Page 91

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 92

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 93

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 D EVELOPMENT 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 â&#x20AC;&#x201C; state level, district level and corporation level. lxxv The decentralized institutional mechanism emphasise on preparation of districtwide 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 www.rostrumlegal.in/journal

Page 94

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 95

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

Andhra Pradesh

Applicability & Act Purpose of Legislation Andhra Applicable to Pradesh all ground Water, Land water resources and Trees Act, in the State and 2002 to Promote Water Conservation, and Tree Cover and Regulate the

www.rostrumlegal.in/journal

General control of Groundwater

Specific reference to MAR

Ground water contamination in any manner by anyone is prohibited. [sec.19]

To improve the ground water resources, by harvesting and recharge, the Authority may issue Direct disposal guidelines for of waste waters constructing into the aquifers, appropriate

Page 96

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

Tamil Nadu

Exploitation and Use of Ground and Surface Water for Protection and Conservation of Water Sources, Land and Environment Tamil Nadu Applicable to Ground-water whole of Tamil (Development Nadu except and the city of Management) Chennai. Act, 2003 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 Chennai Applicable to Metropolitan the whole city Area of Chennai and Groundwater certain revenue (Regulation) villages in Act,1987 Chengalpattu District. To regulate and control the extraction and use of

www.rostrumlegal.in/journal

is prohibited. [sec.19(2)]

rainwater harvesting structures in all residential, commercial and other premises and open spaces. [sec.17(1)]

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 groundwater storage. [sec.5]

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

Page 97

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

groundwater in any form and to conserve the same.

Kerala

Himachal Pradesh

Kerala Ground Water (Control and Regulation) Act, 2002 Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005 West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005

Applicable to certain notified areas [sec.6(1)]

Grant of Permit to extract and use ground water [sec.7]

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)

Applicable to the State of West Bengal West Bengal To manage, control and regulate indiscriminate extraction of ground water in West Bengal Chhattisgarh Applicable to Ground Water the State of (Regulation Chhattisgarh Chhattisgarh and Control To improve the of ground Development water situation and Management) Act, 2012

www.rostrumlegal.in/journal

implementing within such period as may be prescribed the scheme for artificial recharge. [sec.14]

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)] Authorities at State Level various levels Authority to issue (sec. 3) certificate for Sinking of recharge of wells for ground water extracting or [sec.8(2)(c)] using ground water (Sec. 7)

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)]

Page 98

Rostrum’s Law Review ISSN: 2321 - 3787

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 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 i

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/lycsaintex-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

www.rostrumlegal.in/journal

Page 99

Rostrum’s Law Review ISSN: 2321 - 3787 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) xxxvi Ibid, 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. xlii See, Souvik Bose and Abdus Salam, The Way out of dry times: Making rainwater Harvesting Mandatory , 1 Indian Juridical Review (2004) p. 256. xliii For the list of States having separate groundwater law, see Table below. xliv Supra note 3, p.191. xlv Andhra Pradesh Water, Land and Trees Act, 2002, Section 11.

www.rostrumlegal.in/journal

Page 100

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

Ibid., Section 10. Ibid., Section 19. xlviii Ibid., Section 19(2). xlix Ibid., Section 17(1). l Ibid., Section 5(1). li Ibid., Section 6. xlvi

xlvii

lii

See, Tamil Nadu Ground Water (Development and Management) Act, 2003, Preamble. Chennai Metropolitan Area Groundwater (Regulation) Act,1987. liv Ibid., Section 3. lv Ibid., Section 4. lvi Ibid., Section 6. lvii Ibid., Section 9(3). lviii Ibid., Section 5. lix Ibid., Section 13(1). lx Ibid., Section 13(2). lxi Kerala Ground Water (Control and Regulation) Act, 2002. lxii Ibid, Section 7(7). lxiii Ibid., Section 11. lxiv Ibid., Section 6. lxv Ibid., Section 10. lxvi Ibid., Sections 8(5)(d) & &(7)(d). lxvii Himachal Pradesh Ground Water (Regulation and Control of Development and Management) Act, 2005 Section 5. lxviii Ibid, Section 15(1). lxix Ibid, Section 7(1). lxx Ibid, Section 7(3). lxxi Ibid, Section 8(2). lxxii F.K.Hussain v. Union of India AIR 1990 Ker.321 and Venkaatagiriappa v. Karnataka Electricity Board 1999 (4) Karnataka Law Journal 482. lxxiii Supra note 68 Sections 7(5)(d) and 8(4)(d). lxxiv Supra note 3, p.192. lxxv West Bengal Ground Water Resources (Management, Control and Regulation) Act, 2005 lxxvi Ibid., Section 9(a). lxxvii Ibid., Sections 7(3)(a). lxxviii Ibid., Section 8(2)(a). lxxix Ibid., Section 9(c). lxxx Chhattisgarh Ground Water (Regulation and Control of Development and Management) Act, 2012 Section 6(2). lxxxi Ibid., Section 20(1). lxxxii Ibid., Section 20(5). liii

www.rostrumlegal.in/journal

Page 101

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 102

Rostrum’s Law Review ISSN: 2321 - 3787

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 Sloveni vi 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

www.rostrumlegal.in/journal

Page 103

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 1950â&#x20AC;&#x2122;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

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

www.rostrumlegal.in/journal

Page 104

Rostrum’s Law Review ISSN: 2321 - 3787

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,

www.rostrumlegal.in/journal

Page 105

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 106

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 107

Rostrum’s Law Review ISSN: 2321 - 3787

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 nongovernmental 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

www.rostrumlegal.in/journal

Page 108

Rostrum’s Law Review ISSN: 2321 - 3787 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-4d80-9022fcb8fe284c9d/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).

www.rostrumlegal.in/journal

Page 109

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 110

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 111

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Islamthe Chinese, the Jews, the Persians, the Greeks and the Indians. So with the expansion of www.rostrumlegal.in/journal

Page 112

Rostrum’s Law Review ISSN: 2321 - 3787

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 (10 th 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 subcontinent. 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

www.rostrumlegal.in/journal

Page 113

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Patanjaliâ&#x20AC;&#x2122;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)

www.rostrumlegal.in/journal

Page 114

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 115

Rostrum’s Law Review ISSN: 2321 - 3787

Hindi poetry recited by the Chishtiyya Sufis to arouse ecstasy. The dictionary also showed the relevance of the Symbolic poetry of Vaishnava mysticism to Islam xiii. 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 practisingMuslims 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.

www.rostrumlegal.in/journal

Page 116

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. Daraâ&#x20AC;&#x2122;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

www.rostrumlegal.in/journal

Page 117

Rostrum’s Law Review ISSN: 2321 - 3787

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, www.rostrumlegal.in/journal

Page 118

Rostrum’s Law Review ISSN: 2321 - 3787

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 P.K. Hitti, History of the Arabs, London 1961. P.60. 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. xx Jagadish Narayan Sarkar, Islam in Bengal, (Calcutta, 1972). i

www.rostrumlegal.in/journal

Page 119

Rostrum’s Law Review ISSN: 2321 - 3787

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.

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) obligation v and National Treatment obligation vi. 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

www.rostrumlegal.in/journal

Page 120

Rostrum’s Law Review ISSN: 2321 - 3787

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 nondiscrimination 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.

www.rostrumlegal.in/journal

Page 121

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 122

Rostrum’s Law Review ISSN: 2321 - 3787

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 coffeegeographical 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 exportation xxix; 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, www.rostrumlegal.in/journal

Page 123

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 124

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 125

Rostrum’s Law Review ISSN: 2321 - 3787

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

Prohibits a country from discriminating against other countries

vii

MFN treatment clauses can be traced back to the twelfth century

viii

United

Nations

Conference

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

www.rostrumlegal.in/journal

Page 126

Rostrum’s Law Review ISSN: 2321 - 3787

See, John H. Jackson, World Trade and the Law of GATT, p. 225

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, 93 rd Cong., 2nd Sess. 1974, I

xiii

Appellate Body Report, EC – Tariff Preferences, para. 101

xiv

Id.

Peter Van Den Bossche, The Law and Policy of the WTO, 2009, 2 nd 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

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.

www.rostrumlegal.in/journal

Page 127

Rostrum’s Law Review ISSN: 2321 - 3787 Working Party Report on the Accession of Hungary, L/3889, adopted on 30 July 1973, BISD 20S/34, para.

xxxvii

12 xxxviii xxxix xl

Panel Report, Canada – Autos, para. 10

Id.

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, 2 nd 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, 2 nd

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, 2 nd Edition, Cambridge University Press,

Cambridge, p. 38 l

Id.

www.rostrumlegal.in/journal

Page 128

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 129

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 130

Rostrum’s Law Review ISSN: 2321 - 3787

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 shortlived welfare schemes. Any long-term improvement requires…fundamental institutional reform….

www.rostrumlegal.in/journal

Page 131

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 socioeconomic 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 â&#x20AC;&#x161;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.

www.rostrumlegal.in/journal

Page 132

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 â&#x20AC;&#x161;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 ecofeminism 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 socioeconomic 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. â&#x20AC;&#x161;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

www.rostrumlegal.in/journal

Page 133

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 134

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 135

Rostrum’s Law Review ISSN: 2321 - 3787

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 800page 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 www.rostrumlegal.in/journal

Page 136

Rostrum’s Law Review ISSN: 2321 - 3787

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. vii Rio 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

www.rostrumlegal.in/journal

Page 137

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 138

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 139

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 140

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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,

www.rostrumlegal.in/journal

Page 141

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. without

Paradoxically, the objectives of sustainable utilization can not be met

incorporating

the

principles

sustainability

hence

the

confusion

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

www.rostrumlegal.in/journal

Page 142

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 143

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 â&#x20AC;Ś 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

www.rostrumlegal.in/journal

Page 144

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 145

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 146

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

ago is a pointer to the critical dangers inherent in indiscriminate exploitation of nonrenewable 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. personal development and self-fulfilment.

These needs also include our needs for

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.

www.rostrumlegal.in/journal

Page 147

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 selfdetermination. 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 Indiaâ&#x20AC;&#x2122;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, Indiaâ&#x20AC;&#x2122;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 www.rostrumlegal.in/journal

Page 148

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. Indiaâ&#x20AC;&#x2122;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 Indiaâ&#x20AC;&#x2122;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.

www.rostrumlegal.in/journal

Page 149

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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. Itâ&#x20AC;&#x2122;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

www.rostrumlegal.in/journal

Page 150

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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;

www.rostrumlegal.in/journal

Page 151

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 152

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 153

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 154

Rostrum’s Law Review ISSN: 2321 - 3787

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.‛

www.rostrumlegal.in/journal

Page 155

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 handmaidensthe 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.

www.rostrumlegal.in/journal

Page 156

Rostrum’s Law Review ISSN: 2321 - 3787

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. 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. ii

www.rostrumlegal.in/journal

Page 157

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 158

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 159

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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;

www.rostrumlegal.in/journal

Page 160

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 161

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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:

www.rostrumlegal.in/journal

Page 162

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 163

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 164

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 165

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 166

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

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

www.rostrumlegal.in/journal

Page 167

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

the

National

Institute

occupational

health

made

various

recommendations, which the Supreme Court has accepted for further implementation with the help of state High Courts.

www.rostrumlegal.in/journal

Page 168

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

CASE COMMENT

ASSOCIATION FOR MOLECULAR PATHOLOGY, ET AL V UNITED STATES PATENT AND

TRADEMARK OFFICE ET AL

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.

www.rostrumlegal.in/journal

Page 169

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 170

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 171

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 172

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 173

Rostrum’s Law Review ISSN: 2321 - 3787

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 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 i

www.rostrumlegal.in/journal

Page 174

Rostrum’s Law Review ISSN: 2321 - 3787 vii

http://pubs.acs.org/subscribe/archive/mdd/v04/i12/html/12timeline.html 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’. viii

www.rostrumlegal.in/journal

Page 175

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 176

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 177

Rostrum’s Law Review ISSN: 2321 - 3787

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. www.rostrumlegal.in/journal

Page 178

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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 Governmentâ&#x20AC;&#x2122;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 www.rostrumlegal.in/journal

Page 179

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 180

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 181

Rostrum’s Law Review ISSN: 2321 - 3787

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 www.rostrumlegal.in/journal

Page 182

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 183

Rostrum’s Law Review ISSN: 2321 - 3787

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

www.rostrumlegal.in/journal

Page 184

Rostrum’s Law Review ISSN: 2321 - 3787

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 property v, criminal breach of trustvi, criminal breach of trust by servant or clerk vii , criminal breach of trust by public servant, or banker, merchant agent viiidishonestly receiving the property ix , cheating x,

www.rostrumlegal.in/journal

Page 185

Rostrum’s Law Review ISSN: 2321 - 3787

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 Act xii 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

www.rostrumlegal.in/journal

Page 186

Rostrum’s Law Review ISSN: 2321 - 3787

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 wing xix 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

www.rostrumlegal.in/journal

Page 187

Rostrum’s Law Review ISSN: 2321 - 3787

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 days xxiv 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 1988 xxvi 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 committed xxvii . 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 determine xxviii.

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

www.rostrumlegal.in/journal

Page 188

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page 189

Rostrum’s Law Review ISSN: 2321 - 3787

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 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 i

www.rostrumlegal.in/journal

Page 190

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787 iv

Geetanjali 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 xxv S.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 v

www.rostrumlegal.in/journal

Page 191

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page A

Rostrum’s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page B

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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.

www.rostrumlegal.in/journal

Page C

Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787

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).

www.rostrumlegal.in/journal

Page D

ALKEMIAL LEGAL EDUCATION VENTURES PVT. LTD. B-3, VARDHMAN GREEN PARK ASHOKA GARDEN BHOPAL, MADHYA PRADESH  journal@rostrumlegal.in

 www.rostrumlegal.in/journal