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

PUBLISHED BIANNUALY VOLUME: 2 ISSUE: ONE YEAR: 2014

ISSN: 2321 - 3787

First 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 : II



Issue: I

“ONE” - “June - 2014”

Mode of Citation: “RLR (1) 2014 ” Editorial Advisor

Prof. (Dr.) G. P. Tripathi Director, MATS Law School, Raipur, Chhattisgarh, India Guest Editor

Dr. Dayananda Murthy C.P. Head, Academic Affairs Damodaram Sanjivayya National Law University, Visakhapatanam, Andhra Pradesh, India General 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 Editor

Aounkar Anand COO, Alkemia Legal Education Ventures Pvt. Ltd.

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TABLE OF CONTENTS FOREWORD BY PROF. (DR.) A LAKSHMINATH

NOTE FROM THE DESK OF GUEST EDITOR DAYANANDA MURTHY C.P

A. SPECIAL ARTICLE: MENTAL CRUELTY A MECHANISM FOR DIVORCE: AN ANALYSIS OF JUDICIAL INTERPRETATION ANAND PAWAR

THE ROLE OF ROUTE OPTIMIZATION IN MITIGATION OF AIRCRAFT EMISSIONS AND INCREASING ENERGY EFFICIENCY AKASH KUMAR

B. ARTICLES: THE ENVIRONMENT IMPACT ASSESSMENT MECHANISM OF INDIA BHAGIRATH ASHIYA

VIOLENCE AGAINST WOMEN – “THE DARK SIDE OF FAMILIES” RICHA KASHYAP

AND

VIVEK SAURAV

POLICING PRIVACY: REGULATING INFORMATION DISSEMINATION BETWEEN THE MEDIA AND THE POLICE ALWYN AND PRERNA

PROTECTION OF MEDICINAL PLANTS ANIRUDDHA KUMAR AND AASTHA TIWARI

RHETORIC CONCEPT OF NON- LETHAL WEAPONS – UNTOUCHED BY INTERNATIONAL LAW H ARSHAD KAPOOR

ANONYMITY AND REGULATIONS – A BITCOINS PERSPECTIVE KARTIK CHAWLA

108

LEGALIZING GAMBLING IN INDIA: TACKLING MATCH-FIXING BY THE REGULATION OF SPORTS-BETTING MAYANK SAMUEL

122

DECRIMINALIZATION OF CANNABIS IN INDIA N ARESH GUPTA

139

COST OF CORRUPTING CORRUPTION DOES

CANCELLING

LICENSES

CONSTITUTE

EXPROPRIATION

ACTIONABLE UNDER INTERNATIONAL INVESTMENT LAW? SHUBHANGI

158

JUVENILE JUSTICE: IS AGE LIMIT THE RIGHT CRITERIA TO DEMARCATE A PERSON FROM GETTING PROPER PUNISHMENT? SNEHA PRIYA Y ANAPPA

173

THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN INDIA: IS IT TO BE BLAMED FOR THE INCREASING YOUTH CRIME? STUTI BHATIA

185

B. CASE COMMENTS: T.N. GODAVARMAN THIRUMULPAD VERSUS UNION OF INDIA M SAKTHIVEL

200

F. I NTRODUCTION TO CONTRIBUTORS

FOREWORD

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FROM THE DESK OF GUEST EDITOR It gives me prodigious pleasure to be a part of illustrious legacy which was preceded by imminent scholar like Prof. (Dr.) G. P. Tripathi. As the broad spectrum of journal is interdisciplinary, it is praiseworthy, for the acceptance of liberal approach in terms of research methodology and citation. In the macrocosm of academics there is an unconstrained flow of knowledge from every direction. This knowledge can be enliven and beguile in various forms. Essay competition is one such form where the enunciation of knowledge comes dexterously and itâ&#x20AC;&#x2122;s fervently maturates the writing skills of a person. It is a passage to nurture the writing skills. The journal deserves a commendable acclamation, as it has kept its boundaries wide enough to encompass the distinct subject matter. The genre of journal is different as it also accentuates the need of translation of vernacular literature into English. Any journal can thrive only with the ardour of reader, contributors and the entire editorial team. It is the continuous strive for the best of quality that takes the journal to new heights. With this message there is a great expectation as well as responsibility on my part to take the journal to new heights, where authors and readers can quench their thrust for knowledge. I hope this volume will invigorate the mind of readers and bring the desired result.

Dr. Dayananda Murthy C.P Head, Academic Affairs DSNLU, Visakhapatnam

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MENTAL CRUELTY A MECHANISM FOR DIVORCE: AN ANALYSIS OF JUDICIAL INTERPRETATION DR. ANAND PAWAR ‚I must be cruel only to be kind; Thus bad begins, and worse remains behind.‛ -William

Shakespeare, Hamlet

PROLOGUE It is indeed a misfortune that the law which was enacted to protect the interest of a particular group of people is now being used by the same group of people in a fallacious manner. Earlier it was believed that only women can be subjected to cruelty by their husband and relatives but now the whole conception and presumption has undergone a drastic change. Women often use the backing of law as a tool to satisfy their personal hatred towards their husband and his family members. Huge backlog of cases in courts and frequent petition under section 498A of IPC shows us the reality of the situation. As cruelty is a ground for divorce under different laws, in order to get rid of the marriage wife uses this section as a powerful weapon against their husband. The concept of cruelty has varied from time to time, place to place and from individual to individual. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions, their cultural and human values to which attaches importance. i The law on cruelty has been lucidly explained in the Halsbury’s Laws of England, as;

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‚The general rule in all cases of cruelty is that the entire matrimonial relationship must be considered, and that rule is of special value when the cruelty consists not of violent acts but of injurious reproaches, complaints, accusations or taunts. In cases where no violence is averred, it is undesirable to consider judicial pronouncements with a view to creating certain categories of acts or conduct as having or lacking the nature or quality which renders them capable or incapable in all circumstances of amounting to cruelty; for it is the effect of the conduct rather than its nature which is of paramount importance in assessing a complaint of cruelty. Whether one spouse has been guilty of cruelty to the other is essentially a question of fact and previously decided cases have little, if any, value. The court should bear in mind the physical and mental condition of the parties as well as their social status, and should consider the impact of the personality and conduct of one spouse on the mind of the other, weighing all incidents and quarrels between the spouses from that point of view; further, the conduct alleged must be examined in the light of the complainant’s capacity for endurance and the extent to which that capacity is known to the other spouse. Malevolent intention is not essential to cruelty but it is an important element where it exits.‛ ii

INTERPRETATION OF CRUELTY IN ENGLISH LAW The English courts in plethora of judicial decisions, tried to give a comprehensive definition that may cover all incidents, acts, provocation, etc. related to cruelty. Prominent amongst them is the Sheldon v. Sheldon iii , wherein Lord Denning observed that ‚the categories of cruelty are not closed‛. Lord Evershed, with the approval of Lord Merriman in Simpson v. Simpsoniv, observed that;

‚It has so often been said that it is obvious- yet worth repeating- that all cases that come before this court must be determined on their own particular facts, and I should imagine that in no class of cases is that trite observation truer than in matrimonial cases. The circumstances vary infinitely from case to case. The fact is, I think, another reason for a sense of danger in trying to formulate principles of Page | 2

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law out of particular circumstances in particular cases, and then treating those principles of law as being, so to speak, explanations or riders to the actual statutory language.‛ In the case of Jamieson v. Jamiesonv Lord Normand observed that;

‚It is undesirable, if not impossible, to create categories of acts or conduct as having or lacking the nature or quality which render them capable or incapable in all circumstances amounting to mental cruelty‛. In Thomas v. Thomasvi Lord Simon observed that, ‚The leading judicial authorities in both countries who have dealt with this subject are careful not to speak in too precise and absolute terms, for the circumstances which might conceivably arise in an unhappy married life are infinitely various.‛ The House of Lords in the case of Gollins v. Gollins vii , further diffused the interpretation of ‚mental cruelty‛. Now the only requirement was that the conduct complained of should have been ‚grave and weighty‛ or ‚grave and substantial‛ to warrant the description of being cruel. No specific test could be laid down to determine ‚mental cruelty‛. Thus, the English Law in this regard is fairly settled that each case is to be adjudicated by the Judges by the special set of facts before them. Under the Hindu Marriage Act, 1955, as enacted originally, though cruelty was one of the grounds for obtaining judicial separation but it was not a ground for obtaining divorce. The word cruelty was not defined in the Act but in Section 10 which dealt with judicial separation. The word cruelty was used in a restricting sense because it was provided that either party to a marriage may present petition praying for a decree for judicial separation on the ground that the other party has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Page | 3

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Considering judicial interpretations the term cruelty which is a ground viii for dissolution of marriage may be defied as willful and unjustifiable conduct of such character as to cause danger to life, limb or health, bodily or mental, or as to give rise a reasonable apprehension of such a danger.ix Cruelty may be physical or corporeal or may by mental. In physical cruelty, there can be tangible and direct evidence, but in the case of mental cruelty, there can be or can not be tangible and direct evidence. Cases where there is no direct evidence, Courts are required to probe in to the mental process and mental effect of incidents that are brought out in evidence. It is in this view that one has to consider the evidence in matrimonial disputes x. Cruelty is considered as a ground for divorce in various laws xi. Often wife and their relatives take advantage of this ground in order to use it as a powerful weapon to threaten husband and their relatives.

I. CRUELTY AGAINST WOMEN UNDER THE FAMILY LAW The term ‘cruelty’ is very wide in its application. Cruelty can be physical as well as mental cruelty.xii Mental cruelty is defined as the acute mental pain, agony and suffering as would not make possible for either parties to live with each other. xiii There cannot be a straitjacket formula or fixed parameters for determining mental cruelty.xiv Prior to the amendment made in Section 10 of the Hindu Marriage Act, the concept of cruelty, as it was stated in the old Section 10 (I) (b), was critically examined by the Supreme Court in Dastane v. Dastanexv. It was therein observed that the enquiry in any case covered by that provision had to be whether the conduct charged as cruelty is of such a character as to cause in the mind of the petitioner a reasonable apprehension that it will be harmful or injurious for the petitioner to live with the respondent. It was also pointed out that it was not necessary, as under the English Law, that the cruelty must be of such a character as to cause danger to life, limb or Page | 4

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health or to give rise to the reasonable apprehension of such a danger, though, of course its being harmful or Injurious to health, reputation, working character or the like, would be an important consideration in determining whether the conduct of the respondent amounted to cruelty. What was required was that the petitioner must prove that the respondent has treated the petitioner with such cruelty as to cause reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the respondent. Now after the amendment in Sections 10 and 13 made by the Parliament in the year 1976, cruelty has been made a ground for judicial separation and for divorce without putting any statutory rider. There is now no requirement of law that the party seeking divorce on the ground of cruelty must prove that the respondent had persistently and repeatedly treated the petitioner with cruelty. Further, the petitioner has also not to prove that he/she was treated with such cruelty as to cause a reasonable apprehension in his/her mind that it will be harmful or injurious to him/her to live with the other party. Now the scheme appears to be to give liberal interpretation to the provisions relating to judicial separation and divorce. In the statement of Objects and Reasons of the Marriage Laws (Amendment) Act, 1976 also, the object was stated to be so xvi. The Hindu Marriage Act u/s 13 (1) (ia) provides cruelty as a ground for dissolution of marriage by a decree of divorce. The Act stipulates that the decree of divorce can be obtained if the spouse has treated the petitioner with cruelty. The term ‘cruelty’ has not been defined under the Act. However, it refers to such a course of conduct of one spouse that creates such anguish that it endangers the life, physical health or mental health of the other spouse.xvii In Shobha Rani v. Madhukar Reddi xviii the Apex Court observed that the term ‘cruelty’ under the Act shall be used in reference to matrimonial duties and obligations of the person. It is the conduct of the one which is adversely affecting the other, constitutes cruelty. Page | 5

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Further, in the case of Savitri Pandey v. Prem Chandra Pandey xix the hon’ble Supreme Court defined cruelty as treatment by one spouse towards other which manifests feelings towards her or him as to have inflicted bodily injury, or to have caused reasonable apprehension of bodily injury, suffering or to have injured health. Moreover, cruelty may be physical or mental. Mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other.xx

THE ACT CAUSING DEPRESSION TO SPOUSE AMOUNTS TO MENTAL CRUELTY The term ‘cruelty’ is very wide in its application. Cruelty can be physical as well as mental cruelty.xxi Mental cruelty is defined as the acute mental pain, agony and suffering as would not make possible for either parties to live with each other. xxii There cannot be a straitjacket formula or fixed parameters for determining mental cruelty.xxiii Cruelty postulates a treatment of the petitioner with such cruelty as to cause a reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party. Cruelty, however, has to be distinguished from the ordinary wear and tear of family life. xxiv It cannot be decided on the basis of the sensitivity of the petitioner and has to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other.xxv Mental cruelty is determined as course of unprovoked conduct toward one’s spouse which causes humiliation, embarrassment and anguish so as to render the spouse’s life miserable and unendurable. xxvi The hon’ble Apex Court has held that whether an act constitutes cruelty or not shall be determined on the basis of the facts of the case in the light of the education, status and life style of the spouses.xxvii

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Thus, based on the aforementioned concept of mental cruelty the Supreme Court in the case of Saroj Rani v. Madhukkar Reddixxviii has laid down a test to establish mental cruelty. Accordingly, the enquiry must begin with the nature of cruel treatment and then as to the impact of such treatment on the mind of the spouse. Ultimately, it has to be determined by the Court that the conduct causes reasonable apprehension in the mind of the other person. The honâ&#x20AC;&#x2122;ble court in the landmark case of Samar Ghosh v. Jaya Ghosh xxix has observed that the mental cruelty cannot be established through direct evidence and hence, it shall be proved through facts and circumstances of the case. Similarly, in the case of Praveen Mehta v. Inderjeet Mehtaxxx the court held that a feeling of anguish, depression and frustration in one spouse caused due to the conduct of the other spouse shall be appreciated only on assessing the facts and circumstances of the case. In the case Gurnaib Singh v. State of Punjabxxxi the Apex Court has held that an act of a spouse which leads to mental depression to the other spouse constitutes cruelty.

II. JUDICIAL INTERPRETATION OF MENTAL CRUELTY AGAINST HUSBAND Though cases filed by wife against husband and in-laws under Domestic Violence Act and 498-A of Indian Penal Code to claim maintenance and divorce are increasing day by day but all complaints are not filed with bonafide intension. Freedoms of education, job opportunities, economic independence and social attitude have brought tremendous change in the status of women. Though it is the women who have always been subjected to be tortured and harassed by the husband and relatives, in fact saying this will not be proper as cases of torture and harassment against the husband by the wife is increasing day by day. Under the Hindu Marriage Act the concept of cruelty as a ground for divorce can be pleaded by either spouse, but the burden of proof lies on the spouse who is subject of cruelty. Page | 7

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Considering the misuse of those legislative provisions provided for security of women in society are in various cases misused as weapon to unleash personal vendetta on their husbands and innocent relatives and there are certain grounds on which cruelty against husband can be proved xxxii. There are many instance in which the honorable judiciary has considered the different acts of a wife under the Hindu marriage Act held as ‘cruel’ to the husband. In Kalpana v. Surendranathxxxiii it has been observed that where a wife who refuses to prepare tea for the husband’s friends and the frequent insults on various occasion was considered by the court as cruelty to husband. In Anil Bharadwaj v Nimlesh Bharadwajxxxiv the wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband. In a recent case of Mrs. Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingadexxxv petitioner’s wife filed a false case against her husband on the ground of ‘Husband Having Girl Friend’ which is proved as false in a court of law which was considered to be cruelty against husband. The cited cases are few instances to relay and confirm the changing trend of cruelty as a ground to claim for divorce with strong notion that it is used in specific cases and misused generally by spouses.

CONCLUSION In the cases of cruelty the Court has to approach the problem not by having regard to some isolated incidents alone but to the whole of marital relations of the parties. Further, the Court in such cases is not concerned with a reasonable man or a reasonable woman and it has to deal with certain precautions without any apprehension. The Term ‘cruelty’ consists of unwarranted and unjustifiable conduct on the part of defendant causing other spouse to endure suffering and distress thereby destroying peace of mind and making living with such spouse unbearable, completely

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destroying real purpose and object of matrimony. It would of course be difficult to define the expression, there cannot be any hard and fast rule in interpreting cruelty and therefore the term can not be put in a water tight compartment. It must be judged on the facts of each case having regard to the surrounding circumstances. Whether one spouse is guilty of cruelty is essentially a question of fact and previously decided cases have little value. But the concern in this era of modern matrimony is, how to strengthen the institution of marriage, where relations are considered as formality and what should be the mechanism to vigor the family values in the upcoming generation, where spouses are not ready to accept challenges of modern life. Recent trends in matrimonial cases have shown a shift from traditional divorce to fabricated divorce on baseless grounds, and for which to prove their personal affiliation rather priorities sometime they exaggerate to take the plea of either dimension of cruelty. The judiciary is only a hope in this regard to suggest or formulate an apparatus by which the real intension of the parties can be judged.

REFERENCES i

Vinita Saxena v. Pankaj Pandit, (2006) 3 SCC 778 Halsbury’s Laws of England, Vol.13, 4th Edition Para 1269 iii (1966) 2 All ER 257 iv (1951) 1 All ER 955, p 958 v (1952) AC 525, p 545 See also Evans v. Evans [1965] 2 All ER 789 vi (1947) 1 All E.R. 582 at p. 585 vii (1962]) 3 All ER 897 viii Sec. 13- Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; ix N. Nandi, ‘Encyclopedia of Hindu Law’, Dwivedi Law Agency, Allahabad, 3rd Ed. 2013(Reprint). p720 x A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; Prakash v. Kavita, AIR 2008 Raj 111 xi Section 27 of The Special Marriage Act, 1954, provides for 12 grounds for divorce. One of them is cruelty, Section 2 of The Dissolution of Muslim Marriages Act, 1939 also provides for dissolution of the marriage on the ground of cruelty, Section 32 of The Parsi Marriage and Divorce Act, 1936, provides for 11 grounds for divorce. One of them is cruelty, Section 10 of The Indian Divorce Act, 1869, provides for 7 grounds of dissolution of marriage of Christians. One of them is adultery coupled with cruelty. xii A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534. xiii V. Bhagat v. Mrs. D. Bhagat A.I.R. 1994 S.C. 710. ii

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Chetan Dass v. Kamla Devi [2001] 3 S.C.R. 20; Donaldson v. Donaldson (1917) 31 Idaho 180; Luther v. Luther (1978) 5 R.F.L. 285. xv A.I.R., 1975 SC 1534 xvi Justice A.K. Srivastava, Cruelty as a Ground for Divorce or Judicial Separation under the Hindu Marriage Act, 1955, 2 J.T.R.I. Jorunal 1 – 5 (1995). xvii Evans v. Evans (1790) 1 Hagg. Con. 35; Simpson v. Simpson (1951) 1 All E.R. 955; Russel v. Russel (1897) A.C. 395; Sheldon v. Sheldon (1966) 2 All E.R. 257; Brayan A. Garner, Black’s Law Dictionary (8th Ed. 2004). xviii Shobha Rani v. Madhukar Reddi A.I.R. 1988 S.C. 121; Jamieson v. Jamieson (1952) 1 All E.R. 875. xix Savitri Pandey v. Prem Chandra Pandey A.I.R. 2002 S.C. 591; Broja Kishore Ghosh v. Smt. Krishna Ghosh A.I.R. 1989 Cal. 327; Dunkley v. Dunkley (1938) S.A.S.R 325. xx Hoovamma v. Vishwanath ILR 2009 Kar 4193; Jem v. Jem (1937) 34 Haw. 312. xxi A. Jayachandra v. Aneel Kaur, A.I.R. 2005 S.C. 534. xxii V. Bhagat v. Mrs. D. Bhagat A.I.R. 1994 S.C. 710. xxiii Chetan Dass v. Kamla Devi [2001] 3 S.C.R. 20; Donaldson v. Donaldson (1917) 31 Idaho 180; Luther v. Luther (1978) 5 R.F.L. 285. xxiv Buchler v. Buchler (1947) 1 All ER 319; Mamta Namdeo v. Ghanshyam Bihari Namdeo A.I.R. 2013 C.G. 88; Padmaja Chakravarty, Mental Cruelty as a Ground of Divorce, 14 Central India Law Quaterly 95 – 97. xxv Manisha Tyagi v. Deepak Kumar A.I.R. 2010 S.C. 1042. xxvi N.G. Dastane v. S. Dastane [1975] 1 S.C.R. 675. xxvii Siraj Mohmed Khan Janmohmed Khan v. Haizunisa Yasin Khan and Anr. [1982] 1 S.C.R. 695; Rajani v. Subromonian A.I.R. 1990 Ker. 1; Gannath Pattnaik v. State of Orissa [2002] 1 S.C.R. 845. xxviii Saroj Rani v. Madhukkar Reddi [1988] 1 S.C.R. 1010. xxix Samar Ghosh v. Jaya Ghosh (2007) 4 S.C.C. 511; Vinita Saxena v. Pankaj Pandit, A.I.R. 2006 S.C. 1662. xxx Durga Prasanna Tripathy v. Arundhati Tripathy, A.I.R. 2005 S.C. 3297; Praveen Mehta v. Inderjeet Mehta A.I.R. 2002 S.C. 2582. xxxi Gurnaib Singh v. State of Punjab (2013) 7 S.C.C. 108; D.D. Basu, Hindu Law 172 (1st Ed. 2005). xxxii (i) Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against husband and in-laws of husband through lodging false complaints. (ii) Desertion by wife, (iii) Adultery by the wife, (iv) Wife opting out for second marriage without applying for the divorce proceedings, (v) Threatening to leave husband’s home and threat to commit suicide by the wife, (vi) Cruel behavior, (vii) Refusing to cook food properly or on time and breaking of the mangalsutra in the presence of husband’s relatives. (viii) Abusing and accusing husband by way of insulting in presence of in-laws or before office staff members, (ix) Wife refusing to have physical relations with husband without any sufficient reasons, (x) Lowering reputation of the husband by using derogatory words in presence of family members and elders, (xi) Threatening to lodge false FIR against husband and in-laws, (xii) Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency of wife, illicit relationship of wife with some other person and initiating criminal proceedings against husband and in-laws of husband with mala-fide intention by the wife. xxxiii AIR 1985 All 253 xxxiv AIR 1987 Del 111 xxxv AIR 2010 Bom 16

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THE ROLE OF ROUTE OPTIMIZATION IN MITIGATION OF AIRCRAFT EMISSIONS AND INCREASING ENERGY EFFICIENCY AKASH KUMAR ABSTRACT Environmental concerns in aviation have been a widely discussed agenda in many of the international meetings throughout the world in the bilateral or multilateral talks. Emission from aviation currently account for 3.5 % of the total anthropogenic radiates which is anticipated to rise to as much as 15% by 2050, if no further organizational measures are taken to decrease these emissions. Delays caused by congestion in the air traffic at the various airports across the globe are one of the major sources of environmental pollution and also the unnecessary cost to airlines, passengers, and businesses dependent on aviation transportation. Aircraft due to this reason are frequently forced to fly at such a different cruise altitude and/or the cruise speed for which for which they are not designed. This results in unnecessary fuel burn and hence the related gaseous emission which rises environmental concerns both at the local and global levels. This article addresses the role of route optimization in the raised concerns of aircraft emissions and the fuel costs. It outlines the ways it can be addressed at various levels like route optimization at operational level, aircraft designing to suit a particular flying route at manufacturing level and at the level of air traffic management. The accuracy in the flight plan also forms a part of the route optimization programme.

INTRODUCTION The aviation sector in the recent years has witnessed an incredible increase in terms of its size and operations. It has been therefore striving hard to develop resources and means to have consistent, affordable, and environmentally-efficient supplies of Page | 11

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energy sources together with an effective and efficient balanced approach to simultaneously address environmental impacts of aviation related to noise, air quality, and climate change in a manner which is reliable and cost-beneficial. However despite the recent instability and volatility being there in this sector, it is expected that this commercial aviation market would recover in no time and would experience a rapid and continued growth. Therefore, the associated impacts of aviation on environment are also set to become a major concern in the near future particularly absence of effective measures aimed at its mitigation. The principal concern in that also is going to be the issues regarding air quality and climate change and its impact on human health and environment. In the event of the emissions from non-aviation sources decreasing at faster rate, the contribution from aviation sector in terms of emissions of air pollutants may relatively increase and become a major concern.i The process of route optimization in a flight plan not only involves taking into account the correct calculations of aircraft performance and weather conditions, but also includes route restrictions imposed by controllers of air traffic in various air spaces and the other relevant regulatory restrictions. ii For the calculation of an optimal flight plan and route aimed at cutting fuel costs and emissions includes scheming multiple flight routes or approaches to flight operations for each flight, ranking them in order of the total costs involved, choosing the most cost effective plan and providing summaries of the other scenarios for operational flexibility. iii The process of route optimization can be challenging as it involves numerous different elements and the best flight route depends on various factors and the actual conditions of each flight. These factors includes the forecast of the upper air currents and temperature, the amount of payload, and the time-based costs on that particular day. The time-based costs are especially dynamic, as they are driven by again different factors which include payload value, schedule and operational limitations for the crew and the airplane.

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The delays in the air traffic due to congestion in the airport systems of various nations often results in needless costs to the airlines, passengers and any such business or economic activity dependent on aviation. The probable costs of congestion to the various airline industry, passengers and shippers at various airports are esteemed to be in billions per year. iv Furthermore this cost can be divided into two sects i.e. costs directly to the airlines and in terms of value of total passenger time. The environmental impacts of such delays are an added concern which seeks immediate attention. There is an urgent need for a global agreement in the event of increase of aviation emissions. The global emissions by 2020 from aviation are projected to be around 70% higher than in 2005 even if fuel efficiency improves by 2% per year. ICAO forecasts that by 2050 they could grow by a further 300-700%. v If the present emissions levels remain unchecked it has been projected that the carbon pollution may get almost triple by 2036 and may increase by four times from 2005 to 2050 as projected by International Civil Aviation Organization (see figure 1). It has been seen that historically, aircraft designers have been working with the primary objective of maximizing profits for the corporate shareholders.vi Due to the rising concerns of climate change throughout the various nations, environmental performance has off late become a major designing force for the newer aircrafts. Nowadays the aircrafts are designed for better performance with least carbon and NOX emissions at a favorable altitude and on a given flight rout. This also brings down the operation and fuel costs. This article therefore draws on the various factors of route optimization and focuses on different elements like conflicts in air, optimizing payloads, flight operations, air traffic management (ATM), and accuracy of flight plans among others. It also outlines the various levels at which this concern can be addressed for a cost effective flight mitigating the bearing on environment.

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The basic understanding of the conflicts in air traffic is that, it means and occurs when two or more aircraft intrude upon the minimum required separation of each other in flight, such separation as defined by the regulator of air traffic. The detection of such conflicts is understood as the identification of probable conflicts that may occur, by predicting the future trajectories the aircrafts in flight based on their current flight plans, position and headings. In the event of detection of a conflict, it is resolved by altering the flight plan of one or more of the aircraft so as to satisfy the minimum separation requirements. Yet, the whole aim is to ensure that there is conflict-free optimal trajectories planned for all the aircrafts which enter or exit a given airspace. For that purpose, a static conflict resolution algorithm is developed which is then used dynamically to create conflict free trajectories and also to resolve the possible conflicts. The global commercial aviation industry today works with the primary purpose of moving people and goods around the world in a way which is both quick and economical. The aircraft manufacturing industries are in business for making profits for its shareholders by creating produces and services to suit their needs and demands. The national governments worldwide are also a stakeholder in this industry to ensure public safety and for managing the entry and exit of aircrafts in their airspace through various regulations. There have been some government regulations in the past for limiting the air and noise pollution levels in and around the airports. With the growing government concerns anthropogenic climate change today, there is a growing debate on expanding these emission and noise control regulations to cover the complete ďŹ&#x201A;ight regime by way of enforcing a financial penalty for emissions beyond permitted levels. The real cost of these emissions have not been understood seriously at this time, but is expected to be significant in the coming years. As a result, it is incidental for designers of the aircrafts to consider aircraft emissions and engine performances during the conceptual designing process with a view to understand and convey to the policy makers the tradeoffs between economic performance and environmental performance. The economic performance Page | 14

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of the aircraft also to a greater extent depends on the route network over which the aircraft operates depending on the total emissions that the airfield allows. However, this is mostly dictated to the aircraft designers to suit a given flight route network. It would be important to discuss here that we are concerned only with the aircraft emissions that have an adverse environmental impact. The most inďŹ&#x201A;uential of all those emissions are CO2, NOX and contrail formation. These emissions are directly proportional to the fuel burnt in the aircraft and also depend on the altitudes that they fly or are forced to fly in case of airport congestion or conflicts in airspace. In particular NOX emissions are related directly to the design of the fuel combustor, engine design, fuel burn, engine cycle and mainly the overall pressure ratio in the fuel burn process. The modeling of the emissions by contrail formation can also be possible, but for that there has to be a good detail of the local atmosphere and the conditions along the various segments of the flight route. For the purpose of route optimization and therefore aircraft emissions controls there can be resolve at the following levels. The first being the operational level where emissions can be controlled by reducing the fuel usage at the operational level of the aircraft. At the level of airlines it can be mitigated at the level of aircraft designing and manufacturing itself. Finally at the level of air traffic management there can be optimization by providing the aircrafts with an accurate flight plans that can be optimized in route according to the needs of the flight. These optimization at various levels have been discussed at length below. Operational level - This is the most direct way for an airline to improve on its fuel efficiency. This can be achieved by modernizing their aircraft fleet with those which use the modern technologies and high performance and efficiency engines. One of the major problems faced by the airports at operational level is the congestion at the airports. The airplanes in that event are often forced to fly at a different cruise altitude and speed for which they are not designed. They are made to stay in flight

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which also results in unnecessary fuel burns and emissions. It may be noted here that the significant magnitude of the delays in air traffic presently observed, is an indication that the current air traffic control infrastructure is not capable enough to handle the current levels of air traffic. In the light of the forecast that is being projected about the growth in aviation sector over the next decade, there would be an urgent need of air traffic control decision-support systems or such automation tools for addressing the problems of congestion at the various air fields in the world. Additionally it is also required to develop advanced algorithms for air traffic conflict detection and resolution for the overall development of the air traffic management (ATM) system. This is important especially when issues like safety, growing capacity and their environmental implications are considered. The new technologies for flight operations can be adopted in like manner as were adopted in 1970s for the purpose of flight management system. In that there was a new technology introduced for fuel efficiency, the flight management system used to automatically set the most efficient cruise speed, altitude, engine power based on the fuel availability and other such cost parameters involved. vii The other ways to improve on fuel efficiency at operational level is by reducing unnecessary weight, increasing load factors Continuous Descent Approach; restraining from the use of auxiliary power and reduction in the taxiing of the plane at the large airports. It has been projected that such improvements in the air traffic management (ATM) could cause less fuel consumption, increase in efficiency estimated to be in the order of 6 12 %viii. At the level of route optimization- The best route for an aircraft to fly depends on the various factors for each flight. These include the weather forecast, air currents at the upper atmosphere, winds, temperatures the amount of payload and the co0sts based on time for that day. The costs which are time based are especially dynamic as they are determined by the value of the payload and the schedule and operational limitations for the crew and the airplane. Wind speeds also have a signiďŹ cant impact

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on the selection of the optimal route for the aircraft. Most of the Flight planning systems make use of the wind forecasts from the U.S. National Weather Service and U.K. Meteorological Office, which are regularly updated every one to six hours, so as to include the winds in making the best suited flight plan and calculations for aircrafts. However the routs can be optimized by nearly every flight planning system to calculate best flight routs, many airlines still prefer to use fixed “company routes” most of the time. A possible reason for the limited adoption of the route optimization has been the restrictions placed by Air traffic Control (ATC) organizations, overflight permissions, policies of various companies on the routing of aircrafts in certain airfields. For developing an effective flight planning system, there is need to have algorithms which contains models of all these restrictions. These models are then applied together with all the information such as wind condition, temperature, payload and other costs while still obeying with all restrictions. Airlines- In recent times, airlines around the globe have carried out a range of procedures at operational, maintenance and flight planning levels to ensure that their current fleet of aircrafts flies at optimum efficiency levels. These measures range from reducing the weight of crockery on flight to washing their flight’s engine. For example an airline introduced a new cart for beverages on flight the weight of which was reduced by almost 9 Kgs. than the earlier model and the savings out of it is expected to be around $500,000 in annual fuel costs across the fleet. Several other measures like reducing the weight of the passenger seats, removing electrical appliances to minimum needs like ovens for serving hot meals on selected flights, replacing hard cabin divides with curtains, using carbon fiber seats instead of aluminum alloys etc. are just some of the ways to reduce unnecessary weight on aircrafts to increase fuel efficiency. All these measures put together can save a lot of fuel in flight over the time. Another example of such initiative is a successful airline initiative to save weight by matching the quantity of drinking water with the number of passengers on board in a more calculated way, instead of filling the water tanks

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completely for each flight. ix The fuel consumptions can also be reduced by the routinely inspection of the aircraft during systematic maintenance checks for the identification of the possible defects like damaged seals, chipped metal, paints, this can lower the fuel consumption annually by as much as 0.5%.x In India, the operators are being advised on improvement in fuel efficiency in their respective fleet. The operators have already started to reduce fuel consumption by adopting better operational procedures such as minimum usage of APU, reduced flap takeoff and landings, idle reverse on landing, proper flight planning system, adhering to proper maintenance of aircraft, weight reductions in the form of reducing the weight of cabin equipment, catering services, avoiding carrying extra fuel on board, etcxi. IATA estimates that within India, a streamlined ATM system can cut airlines' fuel bills and thus emissions by more than 50 % xii. Air Traffic Management- One of the key methods to save on fuel during flight operations is modern approach for flight descent known as Continuous descent operations (CDO) in which an aircraft descends from its cruise height towards the airport in a continuous approach with minimum thrust. In earlier approaches the aircrafts went through a conventional series of stepped descents requiring the pilot to increase engine thrust to maintain level flight. This new technique helps in saving on a lot of fuel and up to 40 % less fuel is used in the course of approach phases if CDO is adopted. Additionally, there is also a significant reduction in noise footprints together with a remarkable 25-40 % less consumption of fuel through the final 45km of the flight.xiii Usually an aircraft flight is divided into two cycles; first Landing and take-off cycle -LTO and second Climb, cruise and descent cycle -- CCD. Looking at the rate of fuel burn in these cycles separately, the proportion of fuel burnt in both the cycles varies depending on the flight operations. Particularly the contribution from short haul flights is more in LTO as compared to long haul flights. xiv For example, the assessments of Airbus A340 and Boeing 747 average emissions has shown the fuel Page | 18

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consumption by long haul flights are comparatively less for LTO operations. xv As the fuel consumptions in LTO is fixed, it can be concluded that long haul flights are more efficient than short haul ones. The emission modeling is generally done on the basis of carbon footprints per passenger kilometer basis. It has been found that the carbon efficiency of the short distance flight is comparatively lower that long haul flights if we generally look at the carbon dioxide per emissions per seat per kilometer. As the fuel consumption is highest in landing and take-off cycles and therefore it forms the major part of the emissions. In the case of larger aircrafts in medium or long haul flights the climb, cruise and descent cycle forms the major part of the fuel burn and the LTO is not that significant. However the flight efficiency tends to decrease slightly with an increase of the distance owing to the larger amount of fuel that has to be carried for long distances.xvi Taking into consideration other non-CO2 emissions, one of the key methods which has been adopted internationally involves the Air Traffic Management (ATM) aimed at decreasing inefficiencies in flight patterns and encouraging the flight patterns that take into consideration the atmospheric condition that prevails in flight route. xvii By the use of futuristic ATM measures like continuous descent operations (CDO), Controlled Time Arrival (CTA) and System wide information management system (SWIM) can significantly reduce the emissions by efficiently managing the air traffic, they have already been proposed for adoption by airlines worldwide. xviii In another measure to cut down on the fuel burns, the airports have been providing direct electricity to the aircrafts in place of using their auxiliary power unit. As in the aircrafts, there is such an auxiliary power unit (APU) in the form of a generator, which provides power to the aircraft when the main engines are turned off for the purpose of lightening air conditioning and such other needs when parked at the airport gate. Many of the airports by providing direct electricity connection to the aircrafts have reduced the need for switching to APU. There is also research being Page | 19

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done to introduce the use of power generated by fuel cells to replace the APUs. These cells could reduce carbon emissions by over 6,000 tonnes per aircraft over its operational life.xix In India, the new airports are being designed on Green Building Codes to reduce their carbon footprint. More emphasis has been laid on encouraging them to use clean and renewable sources for their needs by making use of solar panels, waste management plants, waste water treatment and rain water harvesting systems. They are also being encouraged to use Compressed Natural Gas (CNG) operated vehicles inside and in the vicinity of the airport for reducing emissions. xx The air navigation service providers (ANS) are also implementing Performance Based Navigation (PBN) procedures for optimizing the utilization of airspace and enhancing the capacity of the airports by taking benefit of airborne capabilities and Global Navigation Satellite Systems (GNSS). For providing sustained and cost effective benefits to the stakeholders in terms of fuel savings, emission reductions capacity enhancement and improved airport access, PBN Implementation Roadmap of India has been established with a view to have a sustained effort in implementing PBN procedures at all airports and airspace in India. xxi

THE IMPORTANCE OF ACCURACY IN FLIGHT PLANS Fuel consumption and costs can be greatly reduced also by improving on the flight plans in terms of their accuracy. This means having accurate flight plans and having a calculated plan for integration with other systems and data systems through accurate engineering and information. The flights can make use of the accurate fuel requirements so as to avoid carrying extra fuel by carrying just the fuel they need to complete the flight. For that there has to regular inputs of flight information, weather conditions together with calculated and accurate algorithms and advanced engineering to select the best flight plans, routs, requirements and to integrate with systems both inside and outside the aircraft.

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For example, the performance and characteristics of the airplane are directly determined by the manufacturer data of the plane. But they must be modified installing master equpments, configurations to suit the specific needs of the flight route, flight operations. There can be deviations from such base line data available from Boeing Airplane Performance Monitoring software. There also has to be an up to date payload predictions and information inputs and it needs to be integrated with the reservation systems to make accurate predictions. Such time-based cost effective prediction turns out to be most accurate when it is integrated with operational control and crew tracking systems. Integration with weather information systems and prediction systems for possible delays or deviations are much needed for an accurate flight plan rather than having rough guesses. The integration of well-tuned planning and information systems with the calculation of the flight plan helps in achieving the highest level of accuracy. That makes the flight crew in making more precise calculations in using the extra fuel that might be needed. That in turn has its effect on emissions as the longer the aircraft stays in the air with extra load and fuel in adverse weather conditions, the more will be the fuel urns and emissions.

EXISTING ROADMAPS The high-level meeting on International Aviation and Climate Change, 2009 agreed on the following measures to reduce carbon emissions (CO 2) from the aviation sectorxxii: a.

a global goal of 2 % annual improvement in fuel efficiency until the year

2050, and further exploration of the feasibility of more ambitious medium and longterm goals, including carbon-neutral growth and emissions reductions; b.

development of a global CO2 Standard for aircraft and facilitation of further

operational changes to reduce aviation emissions; c.

development of a framework for market-based measures in international

aviation; Page | 21

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further elaboration on measures to assist developing States and to facilitate

access to financial resources, technology transfer and capacity building; and e.

submission of States' action plans, outlining their policies and actions, and

annual reporting of data to ICAO on their aviation fuel consumption. International Civil Aviation Organization (ICAO) is the principal organization that requires the airlines to adhere to the environmental certification standards adopted by its Council. It promotes the safe and orderly development of the international civil aviation and its standards and regulations throughout the world The ICAO Council's Committee on Aviation Environmental Protection (CAEP) conducts the majority of ICAO's environmental technical work and has worked to develop a range of Standards to address aircraft noise, aircraft emissions and local air quality. These rules and standards are contained in Annex 16 (Environmental Protection) to the Convention on International Civil Aviation. The Annexure presently has two volumes outlining separate standards for aircraft noise and aircraft engine emissions respectively.

These

regulations

have been framed keeping

in mind

the

environmental impact of aviation in the vicinity of the airports and also the society at large and are regularly updated by the organization through regular international meetings . Currently the CAEP is working on the development of an Aircraft Carbon Dioxide (CO2) Emissions Standard which was initiated as a result of the recommendation by ICAO Programme of Action on International Aviation and Climate Change. The programme forms a part of a set of measures which have been undertaken to reduce greenhouse gas emissions caused by the aircraft emissions. Afterwards the 37th Assembly (Resolution A37-19) adopted in October 2010, requested the CAEP to develop a standard for aircraft emissions to be known as ICAO CO2 Emissions Standard.xxiii

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In a recent step by the ICAO under the Committee on Aviation Environmental Protection (CAEP) process, the organization has commenced an effort to establish environmental objectives, medium and long term in nature relating to three types of technologies in the area of noise, NOx emissions and fuel burns. Additionally the segment of the expected impacts of such long and medium term measures for the improvements in emissions and noise control is also underway. This whole process is being led by panel of independent experts from across the globe to ensure transparency and involvement of all stakeholders in aviation industry. The aim of the whole process is to set goals so as to provide the R&D industries with a reasonable stretch working in cooperation with states to meet the set targets.xxiv A breakthrough in CO2 emissions was achieved with the establishment of the worldwide Aircraft CO2 emissions Standard in the wake of CAEP reaching a unanimous agreement for the reinforcement of CO 2 standards. The emission standard was reached on 11 July 2012. It came out with a CO 2 metric system for emissions which represents the CO 2 emissions produced by the aircraft. The emission system is intended to rightfully reward advancements in aircraft technologies (i.e. structural, propulsion and aerodynamic) which results in the reduction of CO 2 emissions at the different stages of the flight. The emissions standard adopted thus accommodates full range of technological advancements which can be employed by the manufacturers to reduce the CO 2 emissions. The CO2 metric system is based on three fundamentals associated with the aircraft technology and design: these are namely cruise point fuel burn performance; aircraft size; and Aircraft weight. The CAEP after the implementation of this decision on CO 2 metric system plans to move to the next phases of developing the ICAO CO 2 emission standards. The further stages include defining the procedures for certification for each of the factors in the metric system agreed by the nations together with the determination of the applicability of the new standards. After that the next stage is the framing of the regulatory limits of CO2 emissions using the standards of ICAO for technical

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feasibility, benefits to the environment, cost effectiveness, and its impact on the interdependent stakeholders. After the completion of these steps, the new standards for the CO2 emissions will then go through the formal review process and the approval by the relevant bodies of ICAO and the member states which will then be followed by the incorporation of the same into the national regulatory frameworks of the nations. The official approval for the same is expected next year. xxv Besides these there have been many research projects which have been in place for improving the fuel efficiency in the aviation sector. Some of the most promising initiatives are Clean Sky Joint Technology Initiative (JTI), US Federal Aviation Administration (FAA) CLEEN programme, Single European Sky ATM Research (SESAR), Atlantic Interoperability Initiative to Reduce Emissions (AIRE) and NASA Environmentally Responsible Aviation Program.xxvi In addition to the technological advancements and the designs of the aircrafts a key are of improvement is also the optimization of the air space which again includes route optimization and aircraft operations. For this, three major Air Transport Management services have been recognized internationally, xxvii developing a single sky system for Europe, an efficient Pearl River Delta in China; and a Next Generation Air Traffic System in the US. xxviii To make the European sky more manageable and efficient for reduced carbon emissions, there might be a need to regulate it under a single sky zone. The EU airspace which is split in 36 different zones for flight control, it has been planned that they will be merged into 15 larger zones in stages to be known as 'functional airspace blocks', or FABs. The next step will be to amalgamate these zones into a single European sky. The European Union has also been working on reducing the need to take longer routes due to military no fly zones which restrict the operation of civilian and commercial flights over that airspace. xxix

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The EU starting January 1, 2012, restricted the entry of the airlines to those who chose to join the EU emission trading scheme. Though the program generated a stiff opposition from many airlines and countries, it is aimed at spurring the airlines to invest in solutions aimed at deploying new aircraft and flight plan technologies reducing pollution from this growing source. In Asia Pacific skies, there was a multilateral partnership established in 2008 of the air navigation system service providers known as the Asia Pacific Initiative to Reduce Emissions (ASPIRE). Presently this partnership is formed between the air navigation service providers from Australia, New Zealand, USA, Japan and Singapore, although also airlines and other industry stakeholders are associated to specific initiatives. ASPIRE aims to exchange ideas and collaborate on environmentally-friendly operational procedures, standards and best practices. xxx Presently the airspace in India comprises of nearly three million square meters and is divided into five flight information regions (FIRs): Mumbai, Kolkata, Delhi, Chennai, and Guwahati (a sub-FIR).xxxi Currently, 14 monopulse secondary surveillance radars (MSSRs) providing en route coverage, 8 Terminal Area Radars (TARs) and 11 Area Control Centers (ACCs). There are 12 neighboring FIRs that share common Indian FIRs: Pakistan, Oman, Yemen, Mogadishu, Seychelles, Mauritius, Male, Sri Lanka, Malaysia, Myanmar, Bangladesh, and Nepal. Vertical segmentation of air space into lower, middle, upper, and super-high sectors in the airspace for efficient management and safe operations practiced in other countries have not been implemented in India yetxxxii. For the improvement of air traffic management and the resulting CO2 emission therefore, Future Indian Air Navigation System (FIANS) Master Plan has been developed which is based on the estimated growth in air traffic. For the optimum utilization of the airspace for the operations worldwide, the plan supports the requirements of cross border operations and standards as well as developing performance based operations. The main areas of focus for the implementation of an Page | 25

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effective plan for CO2 reduction are use of digital communication; satellite- based navigation supplemented by GPS Aided Geo Augmented Navigation (GAGAN); secondary surveillance radars (SSR), ATM Automation and consolidation of 11 Area Control Centers (ACCs) into four Centers initially and two Centers in the long term; and implementing integrated weather information system. xxxiii In addition to this GAGAN, the (Indian Space Research Organization) ISRO is implementing an Indian Navigation Regional Satellite System (INRSS), an independent, even satellite constellation built and operated by India aimed at maintaining operations between other regional augmentations to GPS for global navigation. xxxiv

CONCLUSION To conclude it can be inferred from the present circumstances that there is an utter need for a reliable, affordable, and environmentally-efficient energy supply in aviation industry. Equally important is to develop an effective and stable approach to concurrently address environmental issues related to noise, air quality, and climate change impacts in a manner which is cost-beneficial and considering potential tradeoffs in order to support continued growth. Regardless of the recent instability, it is expected that the commercial aviation market shall recover with time and is expected to grow steadily. Consequently it is expected that the environmental impacts of the same shall increase in the absence of the potential effective measures for its mitigation and control. Millions of gallons of fuel can be saved by the airlines every year by having accurate, optimized flight plans without the need of forcing the airlines to change or compromise on their schedules or service. Such benefits can be realized by the airlines by investing in a high-end system for flight planning with cutting-edge optimization capabilities along with ensuring their precision by making a comparison of the flight plan values to the actual flight data. In this process there has to be the identification of the cause of such inconsistencies, and then use this information to update the parameters used for the calculations in making flight Page | 26

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plans. It has to be ensured that the flight planning systems take full advantage of the air traffic and of airspace and air trafﬁc management liberalization by working together with other airlines and operations to develop the best possible ways to resolve the aviation conflicts.

REFERENCES 

R. Deehan. Remarks. Greater Miami Chamber of Commerce Transportation Summit Miami, Florida, November 29, 2006



Yenneti K and Joshi G 2010, Chapter 18: Carbon Dioxide Emission Reduction Potential from Civil Aviation Sector -- A Case Study of Delhi-Mumbai Air Route in the India Infrastructure Report 2010



Steve Altus, Effective flight plans can help airlines economize, Aero Quarterly, QTR 03|09.



Aircraft CO2 emissions standard metric system, ICAO fact sheet, available at http://www.icao.int/environmentalprotection/Documents/CO2%20Metric%20System%20%20Information%20Sheet.pdf



India's Aviation Industry: An Overview by The MITRE Corporation/CAASD, 2009



Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for Science and Environment, June 2011.



Fuel saving – contributing to a sustainable air transport development, ATR Customer Services, January 2011



ICAO Environmental Report 2010, Aviation and Climate Change, available at www.icao.int/environmental.../ENV_Report_2010.pdf.



Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero.



ICAO, 2009, Measures Adopted by Civil Aviation Sector in India presented at High-Level Meeting on International Aviation and Climate Change, Montreal

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

Lan, S., J.P. Clarke, C. Barnhart. 2006. Planning for robust airline operations: Optimizing aircraft routings and ﬂight departure times to minimize passenger disruptions. Transportation Science 40(1) 15–28.

ANNEXURE

Figure 1: total global aircraft NOX below 3000 feet, (915 meters) AGL Source: ICAO Environmental report 2010

Figure 2: Total aircraft fuel burn, 2006 to 2050.

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Source: ICAO Environmental report 2010

Figure 3: Commercial aircraft fuel efficiency (CASFE) Fuel-Flight results Source: ICAO Environmental report 2010 i

Committee on aviation environmental protection (CAEP) eighth meeting, Agenda Item 5: Future work , update on U.S. aviation environmental research and development efforts, Montréal, 1 to 12 February 2010. ii Fuel saving – contributing to a sustainable air transport development, ATR Customer Services, January 2011 iii Steve Altus, Effective flight plans can help airlines economize, Aero quarterly, qtr_03 | 2009, p 27-30, available at www.boeing.com/commercial/aeromagazine. iv R. Deehan. Remarks. Greater Miami Chamber of Commerce Transportation Summit Miami, Florida, November 29, 2006 v Reducing emissions from the aviation sector, available at http://ec.europa.eu/clima/policies/transport/aviation/index_en.htm vi Marla, L., C. Barnhart. 2010. Robust optimization: Lessons learned from aircraft routing. Working Paper, available at www.agifors.org/award/.../LavanyaMarla_paper.pdf. vii Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero. viii Yenneti K and Joshi G 2010, Chapter 18: Carbon Dioxide Emission Reduction Potential from Civil Aviation Sector -- A Case Study of Delhi-Mumbai Air Route in the India Infrastructure Report 2010 ix Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero. x Ibid. xi ICAO, 2009, Measures Adopted by Civil Aviation Sector in India presented at High-Level Meeting on International Aviation and Climate Change, Montreal. xii IATA (2008a). 'Building a Greener Future', April, available at http://www.iata.org. xiii Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero. Page | 29

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xiv

Dr Christian N. Jardine 2005, Calculating the Environmental Impact of Aviation emissions,

Environmental Change Institute, Oxford University Centre for the Environment xv Ibid. xvi Ibid. xvii Yenneti K and Joshi G 2010, Chapter 18: Carbon Dioxide Emission Reduction Potential from Civil Aviation Sector -- A Case Study of Delhi-Mumbai Air Route in the India Infrastructure Report 2010 xviii Dr. Kota Harinarayana, 2010, Green Aviation presented in February at New Delhi xix Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero. xx ICAO, 2009, Measures Adopted by Civil Aviation Sector in India presented at High-Level Meeting on International Aviation and Climate Change, Montreal xxi Ibid. xxii ICAO, 2010, Environmental Report 2010, Chapter 2 xxiii Aircraft CO2 emissions standard metric system, ICAO fact sheet, available at http://www.icao.int/environmental-protection/Documents/CO2%20Metric%20System%20%20Information%20Sheet.pdf xxiv Technology Standards, Certification Standards and Technology Goals, availabl at http://www.icao.int/environmental-protection/Pages/technology-standards.aspx xxv Technology Standards, Certification Standards and Technology Goals, availabl at http://www.icao.int/environmental-protection/Pages/technology-standards.aspx xxvi Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for Science and Environment, June 2011 xxvii IATA 2007, State of the Air Transport Industry—64th Annual General Meeting, Montreal xxviii Ibid. xxix Air Transport Action Group (ATAG) 2010, Beginner's Guide to Aviation Efficiency www.enviro.aero. xxxwww.aspire-green.com xxxi India's Aviation Industry: An Overview by The MITRE Corporation/CAASD, 2009 xxxii Ibid. xxxiii Arushi, Stefan Drews, Aviation and Environment, A Working Paper, Centre for Science and Environment, June 2011 xxxiv India's Aviation Industry: An Overview by The MITRE Corporation/CAASD, 2009

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THE ENVIRONMENT IMPACT ASSESSMENT MECHANISM OF INDIA: THE NEED FOR REFORM AND THE SHIFT TOWARDS THE ESSENCE OF SUSTAINABLE DEVELOPMENT BHAGIRATH ASHIYA Keywords: Environment Impact Assessment, Sustainable Development, Strategic Environment Assessment, Public Participation Earth provides enough to satisfy every man’s need; but not every man’s greed’ - Mahatma Gandhii

ABSTRACT The present mechanism that prevails in India for clearing environmental projects through environmental impact assessments, defeats the entire purpose of this vindicatory exercise, which is based on the principle of furthering sustainable development. The process of assessment of the environmental impacts is the key ingredient in taking decisions pertaining to environmental clearance, but the inadequacies of the Environment Impact Assessment (EIA) in India has thwarted the entire objective of an ecological, economic and social cost – benefit analysis for sustainable development. The procedure laid down for the functioning of this quintessential process consists of a number of fallacies which are counterproductive to creating a fine balance between growth and sustainability. This paper analyses the existential and eventual shortcomings and the impacts on society, which result out of strict adherence to a perceived just process, as the only means to achieve economic growth as well as societal harmony. The means employed in India to achieve the rationale of environmental sustainability is defeated when the EIA norms circumvent established international practices. The EIA procedure in India reflects the change from red tapism to green tapism, with hindrance to ecology as well as the needs of the industry. Thus the need for the shift from the present system of environmental assessment can be made out from the inherent lacunae that persist within the bureaucratic system. The plethora of questions that the EIA raises eventually can be discerned into realizing that the machinery put in place to achieve its said purpose of rational decision making is Page | 31

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following an ineffective method of assessment, on which depend the livelihood and future of the society. The urgency is not only with regard to a shift from EIA’s, but a structural reform in their functioning and the integration of practices that exist throughout the world in stark contrast to the EIA mechanism prevalent in the Indian scenario.

THE EVOLUTION OF EIA MECHANISM IN INDIA The concern for environmental protection in India can be traced back to the ancient period, where it was the dharma of the individual to protect nature. ii The very principle of sustainable development, finds mention in the Atharva Veda, where the sages chanted ‚What of thee I dig out Let that quickly grow over Let me not hit thy vital, or Thy heart‛iii The quintessential issues, which culminate into a challenge of reconciliation, concern the values of economic growth, social vitality and ecological integrity.

The

compromise between the right to development and the need for environmental conservation can be disembarked through effective EIA’s. The emerging concept of international standards, by which such degradations is to be controlled and monitored, v has lent credibility to the anticipation of environmental harm, rather than its prospective prevention. In its original form the Indian constitution contained no provision relating to the protection of the environment. vi The fourty second amendment to the Indian constitution, after the Stockholm declaration, introduced provisions relating to the protection of the environment. The Directive Principles of State Policy provide for the duty of the State to protect and improve the environment and to safeguard the forest and wildlife of the country.vii The duty is also cast upon the citizens whereby every citizen has the fundamental duty to protect and improve the natural environment. viii The demand for environmental protection has mostly arisen out of political necessity rather than the mass realization of protecting the ecosystem. The Environment Protection Act of 1986 emerged as a result of an industrial disaster involving Union Carbide in Bhopal.ix Sustainable development has been defined as ‘what type or extent or development can take place, which can be sustained by the ecology with or without mitigation.’ x The competing interests of development and the conservation of the environment, require a harmonization, of Page | 32

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the approach to sustainable development. The reconciliatory mechanism required to balance these divergent interests, has evolved in the form of an Environment Impact Assessment (EIA). The legal conception of sustainable development xi and the EIA apparatus can be summarized as a precautionary principle, where it is better to err on the side of precaution and prevent irreversible environmental harm.xii

THE MONOPOLISTIC ALLOCATION OF POWER TO THE MINISTRY OF ENVIRONMENT AND NEED FOR

FORESTS: THE APPARENT FLAW AND THE

EIA

The National Environment Policy Act (NEPA), 1969 in the United States introduced the concept of Environment Impact Assessment (EIA) xiii by facilitating its implementation through a legislative instrument. xiv The preamble of the NEPA clearly identifies the purpose of the legislation, which states, ‚To declare national policy which will encourage productive and enjoyable harmony between man and his environment‛. The evolution of EIA can be traced in the international arena to the Rio Declaration (1992) under Principle 17, which provides for the concept of EIA xv, as an environmental management tool to reduce the potential adverse impacts on the ecology, arising out of developmental activities. After the Stockholm conference, the National Committee on Environmental Planning and Coordination (NCEPC) was constituted, under the Department of Science and Technology, which initiated the process towards the formation of the separate ministry concerning the environment. xvi The international obligations are mandated to be implemented as provided for under Article 253 of the Indian constitution. xvii The Espoo Convention (1991), Protocol on Environmental Protection to the Antarctic Treaty (1991), Biodiversity Treaty (1992) and the United Nations Framework Convention on Climate Change (1992) exclusively provide for a mechanism of EIA for sustainable development.xviii In the MOX plant casexix, Danube Dam casexx and the Pulp Mills casexxi, the court arrived at the deduction that an EIA, should be construed as an integral part of the principles of due-diligence and the no- harm rule. Thus EIA is utilized as a universal tool in environmental conservation and management. The EIA process envisages an important regulatory tool to balance the needs of society as well as the realization of goal of rational utilization of resources of the nation. The concept of sustainable development arose out of the deliberations of the Brundtland Commission in 1987, which defined sustainable development as "development, which meets the needs of the present generation without compromising the ability of future generations to fulfil their needs."

xxii

, Thus the Page | 33

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resultant gradual shift from mere economic viability of the certain industrial activities to a more meticulous analysis of the ecological, societal and sustainability of the project in question. The Govindarajan Committee effectively strengthened the argument that environmental conservation priorities were to be tolerated, as long as they did not hinder the promotion of investment. xxiii The approach of the Indian government to proceed with an executive order rather than a legislative approach needs consideration, as a form of rule modification to serve executive interests delineates from the said purpose.The issue with the use of a notification in contrast to a legislative instrument strangulates the ambit for debate, discussion and deliberation, which is the primary safeguard against the exercise of arbitrary powers by the executive.

THE PROBLEMS: THE FLAWS OF EIA IN INDIA AND THE POLICY OF EXCLUSION The EIA notification of 2006 with the objective of re-orienting the assessment process in India, in contradictory terms closely re-aligned and modelled the notification of 2006 on the recommendations of the Govindarajan Committee. Thus the rationality of diluting the process of the safeguards provided under the notification of 2006 from that of 1994, becomes clear as the government grapples with the idea of creating an investment friendly climate. The EIA notification of 2006 superseded the 1994 notification, whilst inculcating new objectives of devolution of powers to the state governments, reduction in procedural intricacies and a liberalized policy in contrast to the executiveâ&#x20AC;&#x2122;s notified and amended predecessors. The donor agencies operating in India like the World Bank and the Asian Development Bank operate through a different set of requirements for granting environmental clearance for the projects that are directly funded by these agencies.xxiv The procedural formalities have created an obtrusive ineffective process resulting in political and corporate interest creating a form of green tapism in the clearance procedure.The much-needed public participation is also reduced with the exclusion of Panchayats in public hearing panels, which was provided for under the notification of 1994. xxv The role of the local governance bodies in policy and decisionmaking process is excluded from the scope of consultation in the EIA notification of 2006. The Panchayat Raj Act, 1992, Nagarpalika Act, 1992 and the Schedule Tribes and other Traditional Forest Dwellers Act, 2006, clearly provides for the role of local bodies in social and economic planning. xxvi Thus the EIA notification of 2006 in many ways excludes the local participation by this policy of exclusion. The exclusion of Railways and irrigation projects from the ambit of the safeguard provided by the Page | 34

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compulsory performance of Environment Impact Assessment is contrary to established international practices.xxvii In contrast to the Indian position, EIA directive of the European Unionxxviii provides for obligatory assessment for railway projects as it clearly impacts the environment. The deficiency of reliable data sources and the credibility of the primary data attenuate the very concept of quality EIA reports. xxix The discretion granted to the bureaucracy by the way of delegation without any safeguards and accountability creates inefficiency and abuse of power. The bureaucratic stranglehold of this essential process of balancing interests, results in corrupt, prejudicial and ineffective decisions.

THE PROCEDURE AND THE ELEMENTS OF THE EIA PROCESS: THE LACUNAE IN ENFORCEMENT OF THE LAW The global system that has emerged is based on the fundamental premise of economic growth as the fundamental principle. The slight deviation being the introduction of sustainable development as one of the subsidiary aims xxx within the states agenda of economy over ecology and equity. xxxi The kind of cost-benefit analysis approach that has put a price tag on each and every resource culminates to a shift from a market economy to a market society. Thus when environmental costs emerge in the arrangement of economic calculations, the basis for the value judgment is the monetary value assigned. xxxii The Indian approach to environmental governance lacks in the manner of its implementation policy. The fundamental function of regulation lies in its capacity to contribute to the balancing of interests and resolution of conflicts in society. xxxiii The brazen discretionary powers granted to the officials, neither does justice to the needs of the environment as well as development. In the Philip Hampton Report on Reducing Administrative Burdens, has identified that regulators should use risk assessment in the form of eliminating unnecessary inspections and shift focus towards compliance. xxxiv The EIA notification of 2006 brought about considerable changes, which ensued a deliberate compromise of prerequisites such as public participation and transparent decision-making. xxxv The notification envisages the hierarchical stage of clearance process, beginning with screening and then scoping, public consultation, appraisal. It involves the project proponent who applies for the terms of reference from the concerned authorities at the central or state level. xxxvi The minutes of the public consultation hearings are sent to the Expert Appraisal Committee (EAC) of the MoEF for Appraisal.xxxvii The major problem with the EIA process includes the quality of data that is utilized in arriving at decisions for grant of clearance of potentially harmful industries. The entire collection of data is dependent upon the project Page | 35

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proponent, who can present distorted data with the help of the consultants, who are also financed by the project proponent. This method of preparation of the EIA report xxxviii defeats the use of this tool as a regulatory mechanism. The cogent reasoning that follows from consultants financed by the project proponents, stipulates the manner in which such a report would be unbiased and not client centric. The Supreme Court of India as also observed that â&#x20AC;&#x161;This Court would have been more comfortable if the environment

impact studies were made

by the

Ministry of Environment and Forests (MoEF) or by any organization under it or at least by agencies appointed and recommended by it.â&#x20AC;&#x203A; xxxix The MoEF has taken measures with regard to procedural checks such as granting environmental clearance when EIA reports are prepared by an accredited consultant and requiring clearance before initiation of any construction activity. These reforms do not in any manner address the issue of pecuniary influence that might result in the assessment report as being financed by the project proponent. This accreditation body Quality Council of India (QCI) which is bestowed with the task of providing accrediting accurate consultant agencies is jointly partnered by the Government of India (GoI) and the Indian industry. xl This process of rubber stamping whilst industrialists having a substantial interest in the outcome of the process, defeats the very objective of the accreditation process. The MoEF presented this process as a solution to the inaccurate and misrepresented data projected by the consultants but financed by project proponents. In the United States the NEPA requires the Environment Impact Statement (EIS) to be formulated by the concerned agency of the government. In this endeavour the agency can employ private consultants in preparing the EIS. The role of the agency is also clearly determined with the responsibility of the content lying with the agency. xli The problem in India can be remedied through a specialized agency similar to the United States but independent of political or complete bureaucratic control considering India ranking 94th in the Corruption Perception Index ratings 2012. xlii This problem is also compounded by the fact that the composition of the Expert Appraisal Committee (EAC) is mainly a bureaucratic undertaking xliii , with the no involvement of environmentalists and civil society members. The EIA notification of 1994 provided for an independent ecologist and environmentalist as part of the EAC. xliv The enforcement mechanism is also fairly ambiguous with no clear procedure for the penalties and when clearance can be revoked.xlv There is also no clarity with regard to the role and powers of the EAC, in case its recommendations are amended or overturned without following the provisions of Para 8 (ii) of the notification. xlvi Thus there is a lack of suo moto authority to insist upon the implementation of the recommendations.

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The application of the EIA process is based on the principle of a pre-emptive approach and the mitigation out of effective alternatives to ecologically harmful activities. This approach is ineffectual when the rationality caters only to development. The mind frame that exists among the people, that taking socioeconomic conditions into consideration will hamper economic growth can lead to a misdirected attempt at rapid development. The projects that the government takes must also be subject to cost benefit analysis, as decision-making tool of sustainable development. The stance taken by the government in cases of infrastructure projects involving large-scale public investment excludes a number of polluting industries whilst providing exemptions to some industries. The very idea of having a predetermined list with an exclusive rather than inclusive policy defeats the entire purpose of assessing the impact on the environment. The EIA norms have been amended for almost fourteen times and mostly in the favour of the project proponents and scarcely for the sake of the environment. xlvii This continued flexibility afforded to the MoEF to notify changes almost antithetical to previous notification defeats the objectivity of an environment friendly notification. The composition of the EAC has also been compromised by the inclusion of the term professionals in contrast to the EIA notification, 1994, which provides for members who are environmentalists or civil society representatives. xlviii In the European Union the, competent authorities decide the decisions with regard to the requirement of an EIA, after seeking advice from the developer and NGOâ&#x20AC;&#x2122;s. In the case of most developed countries the screening process is well established on the basis of clear scrutiny rather than having a pre-determined list as in the case of India. xlix The ineffective mechanism of dealing with the issues of the environment has also led to judicial directives, which have clarified the position of law as well as set guidelines for the implementation of the judicial recommendations. The problem with the functioning of the MoEF and the executive decisions in various cases have led to the judiciary reprimanding these bodies for their inability to meet statutory obligations. l The proposition for a national policy and effective public participation li, to regulate the environmentallii, still lack the political and societal will in its implementation.

THE STAKEHOLDERS: THE ESSENCE OF PUBLIC PARTICIPATION AND ITS REQUIREMENT IN THE EIA PROCESS The World Commission on Environment and Development, in its 1987 report has concluded that the objective of social justice cannot be achieved without an equitable sharing of the cost and benefits of environmental protection. liii The realization of distributive justice cannot be rendered through ineffective apparatuses of the law, Page | 37

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which lack practical application in the domain of policy decision making. The UDHRliv, ICCPR lv and American Convention on Human Rightslvi, acknowledge and reverberate the essential democratic aspect of the right to political participation. It reflects an expansive notion of democracy, which cannot be achieved by the states involvement in the decision-making procedure. lvii The implementation of public participation adds legitimacy to the environmental decisions lviii and adhere to the international obligations of access to justice and such pluralistic structures of public involvement.lixOnce the public hearing is held, the grievance and opinions expressed, the minutes of the project are sent to the MoEF. lx Though this procedural aspect is finalized, the low educational levels and environmental awareness hinder the entire purpose of this integrative exercise. In most cases the help is provided by NGO’s lxi – who take up this cause of the locals. A large number of environmental projects are inadequately researched and biased, as the proposer of the project funds them.lxii The development policy of India must integrate, the essence of environmental laws, which advocate accountability, public participation and administrative justice. lxiii The implementation of the international obligations under the Convention on Biological Diversity are also under question, when the Indian Biodiversity legislation has faced criticism over legalizing bio piracylxiv and the structure of the regulatory body skewed in favour of the government and the bureaucracy. The willingness of the various bodies to exclude public participation becomes clear with regard to a number of cases lxv, which have provided public consultation as one of the essence of Environment Impact Assessment. In the Jan Chetna case the court clearly held that ‘It is no more res integra that environment is a right guaranteed under Article-21 of the Constitution. The Environment (Protection) Act, 1986 and EIA Notification are the means adopted, to protect the right in discharge of the obligations enjoined under Article-48 A of the Constitution.’lxvi The blanket immunity granted to certain projects with regard to public consultation defeats the purpose of EIA as it does not take into account any concerns of the public which might actually be affected in any manner. The rights of the citizens to know and the right to object to any activity that might impair the right to environment, is an essential criterion for the complete realization of the statutory and constitutional obligations cast upon the state. The Supreme Court has also upheld this right to know about the affairs of the government and the policy decisions that impact their welfare. lxvii The process of assessment must be tailor made to suit the needs of the people and their concerns, without having an overarching exemption to certain industries, even if they do not ostensibly impact the environment. The only instance at which there is public involvement in the project cycle is the public hearing stage lxviii, which reduces scope Page | 38

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for public participation in the preparation of the EIA report. This only opportunity provided for public consultation would result in severe injustice to grievance redressal. The scenario in which there can be informed participation of the local communities is when the EIA report is provided in the local language, which in many cases is not followed. lxix In India, weak screening and scoping, poor quality baseline data, ineffective follow-up, whilst lacking key legislation lxx are the most glaring loopholes within the prevalent mechanism. Therefore, the prerequisite necessity for a complete overhaul in the preliminary stages of the EIA implementation process.

THE ALTERNATIVE: STRATEGIC ENVIRONMENT ASSESSMENT The EIA process in India has not resulted in an effective form of environmental accountinglxxi, where an integration of the myriad forms of policy issues is necessary. The standard has been that of a shift in the focus from a bureaucratic clearance procedure to that of providing a fast track clearance mechanism. The accurate data on investments and costs provides an accurate measure of the conservation initiatives required from the corporations.

lxxii

The environmental accounting of the UN

Statistical Commission, that is undertaken in the form of a SEAA System of Integrated Environmental and Economic Accounting takes into account the natural assets and provides a framework for integrated sustainable development. lxxiii Thus such methodologies narrow the ambiguities lxxiv, which lie in formulating an operative national policy on the environment. The Smith Study of 1974 utilized 10 criterions for the evaluation of a number of EIA methodologies, lxxv which have not been completely implemented in the Indian scenario. The certainty of punishment deters the perpetrators of the crime, rather than acting as a mere acceptable risk. The post- clearance stage enforcement mechanism in India, suffers from the flaw of a wide array of regulatory agencies, from which require various clearance procedures. The discretionary functioning must be made answerable and the intervention of political representatives barred lxxvi, so that there is specific accountability for the grant of clearances. The ineffectiveness of the environmental laws in India, can be deduced from the constant amendments to various legislations such as the Environment Impact Assessment notification, The Water Act and the Air Act. lxxvii The environmental laws should shift the focus from the entirely preventive methodology towards an integrated punitive approach. The shift from Environment Impact Assessment (EIA) to Strategic Environment Assessment (SEA) does not classify as a mere change in terminology, but a stark difference in approach towards balancing the interests and needs of the society. One Page | 39

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of the major shortcomings that the EIA process inherently entails is the last stage impact on the decision making, while SEA provides an elixir to this accusation by providing for initial decision-making, as it takes place at the early stages. The SEA also can be considered as an interdisciplinary approach, which takes into consideration a number of eventual impacts as well as alternatives lxxviii in contrast to that of the EIA report. The benefits of the entire of conducting an EIA can only be reaped when there is the enforcement and procedural compliance to international standards where EIA reports do eventually impact the decision-making. As stated, ‘the litmus test of EIA effectiveness lies upon the influence this report has on decision making’ lxxix , but in contrast the body reviewing this highly questionable report is adjudged by an extremely flawed body i.e EAC. Thus the tangible effects of this purposeful exercise of conducting an EIA can be felt, only when there is a substantial overhaul of its present purpose, procedure and practice. The inclusion of a Social Impact Assessment in the decision-making along with the EIAlxxx would also provide for additional substantiation of the social and environmental cost-benefit analysis. The developmental programmes, which are inclusive of the social impact assessment, alleviate poverty, enhance inclusion and building ownership while reducing and compensating for adverse social impacts on the vulnerable and the poor.lxxxi An effective EIA results in the much needed mitigation measures and a clearly charted environment management program. Thus an integrative approach towards India’s environment concerns can alleviate the downtrodden methodology of impact assessment, by taking environmental, social, and economic and health considerations as concurrent lines of analysis for a reasoned report. It has been extensively accepted that a SEAlxxxii is significantly more likely to foster sustainable development than project-level EIA. lxxxiii The shift from EIA, which lacks in implementation lxxxiv , to SEA can be considered as the refined approach to sustainability.

THE GREED OVER THE N EED The scrutiny of different methodological approaches to implementing the principle of sustainable development, gives rise to two models of the EIA approach, i.e the mandatory model and the discretionary model. lxxxv The classification is based on the scope and nature of discretion granted over the procedures for EIA, which are governed by a specific or delegated legislation. lxxxvi The Indian model concerns the discretionary model, which provides less accountability, stability and transparency in comparison to the mandatory model. The shift to such a model would invigorate the essence of sustainable development, as there would be much to practice than preach the prevalent ostensible process of EIA in India. lxxxvii There is a pressing necessity to appositely amend the anti pollution Acts and the EIA Notification, thus encompassing all development projects.

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As Ramachandra Guha rightly states that ‘In its countrywide implications the environmental problem is every bit as serious as the Kasmiri Dispute or the fiscal crisis of the State.’lxxxviii Though such issues concern the masses, the sensitivity to such issues has hardly garnered the recognition by the intelligentsia and poorly acted upon by the political class. Thus the fundamental right to a healthy environment lxxxix cannot be realized until EIA’s don’t conform to international standards, xc not only in principle but also in practice.

CONCLUSION The problems of overpopulation and urbanization are typical phenomenon that occurs in every developing nation, at particular phase of its growth. This stage of growth results in sound economic policies but rather unsound environment friendly policies, as the government tries to balance the needs of the state while adhering to the principles of sustainable development. The result of reconciling the aspects of development and sustainability must seem tangible and effective, rather than represent mere tokenism on part of the government. The prevalent EIA mechanism in India has failed to address issues on a number of constant criticisms levelled by environmental organizations and various pressure groups. There is an urgent need for a shift from the prevalent EIA mechanism to an independent regulatory body, which lacks political interference and corporate pressure from various lobby groups. The EIA notification allows acquisition of land for projects even before an application of environment clearance and pre-construction activities of hydroelectric projects goes unregulated.xciThere clearly exists a lack of an enforcement regime and requires only half-yearly reports from the project proponent. The ostensible nature of the EIA process in India portrays the inherent flaws with its initiation in policy making to the eventual implementation. The objective of sustainable development cannot be achieved through a sustained process of exploitation of the recurrent loopholes of the environmental procedures and the wilful acquiescence to the demands of the industry. The Supreme Court in the T. N. Godavaraman casexcii has held that conformity to the principle of sustainable development as constitutional requirement based on the principle of intergenerational equity. It can be understood that the concept of sustainable development entails legal sanctity rather than being a mere policy decision, performed at the discretion of the executive. The prevailing need for a shift from the current EIA process can be understood when the former Union minister for Environment and Forests in 2011 went to the extent of terming the EIA process in India to be a ‘joke’. xciii The EIA notification of 2006 has also devolved powers to the Page | 41

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state governments, which is a welcome step towards the devolution of monopolistic like powers conferred upon the MoEF and the central executive. This step brings into line the division of powers under the concurrent list under the seventh schedule, which includes subjects such as protection of wildlife, mines and minerals and forests. Although this devolution is devoid of any substantial change as it acts in a counterproductive manner, when local bodies are excluded from the decision making process. The problem in India with regard to EIA, not only occur at the implementation stage but rather concern the entire setup and the purpose with which environmental issues are raised in society. The need for a shift from the prevalent mechanism of balancing interests through the EIA process has raised mass criticism due to the inherent inefficiencies and flaws in implementation. The process of change in the Indian scenario can only be expected when there is at least a change in the political, bureaucratic and societal mind set towards the phenomenal importance of the environment towards sustainable growth. The needs of the environment are in some manner considered as an impediment to growth, especially in a developing nation such as India. Thus there is always a requirement for an industrial friendly environment policy, which would promote investment and development. The question that society needs to answer is whether a compromise is made in the environmental policy to suit the needs of the developing nation? The stark reality is that environment policy is never dealt as a political issue but only as a form of appeasement of Indiaâ&#x20AC;&#x2122;s commitment to its international obligations and projecting growth based on sustainability. The NEPA in the United States was enacted as result of mass agitation while in India it resulted as form of corrective policy as fallout of the aftermath of the Bhopal gas tragedy. Thus the environment has never been a poll issue but rather a policy decision by the executive while evading the scrutiny of the Parliament. The point, at which India can scrutinize its own EIA without effectual comparison with other forms of EIA implementation, then can only there be a shift in the process of assessment. The need in India is to shift from the bureaucratic and executive hold over the EIA process to a transparent mechanism for a separate regulatory body, which makes decisions independent of the political and industrial lobbyist pressures. There is also a much-desired need for a form of sensitization of the accrued benefits that result out of an environment impact assessment report, rather than the demonization of the entire mechanism. The environmental education that is imparted to students creates highly aware and participative citizenry in the field of environmental activism.

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The industrial perspective must also change from the viewpoint of EIA being a hindrance, as future costs of litigation, resulting compensation for damages, environment disasters and their mitigation can be determined on the basis of accurate analysis. Thus if the industrialist realizes the benefit that results out of this process, then the demand will be for voluntary compliance, rather than evading the requirements of the EIA process. The bureaucratic control and the concerns of the capitalists can be dealt with an independent regulatory body, free from the political control of the Ministry of Environment and Forests. The number of EIA scams and the affirming judgementsxciv vindicating the failure of the environmental regulatory bodies in India clearly put forth the need for an overhaul of the present EIA mechanism, even after the EIA notification of 2012. The fallacies of these notifications lies in their ambiguity and inability to deal with a number of agencies, thus necessitating the requirement of a comprehensive legislation with clear devolution of roles, responsibilities and powers of various state and central bodies. In 2007, when there was severe questioning of the Quality Council of India xcv process by certain groups and individuals of the accreditation mechanism, the QCI brought out a list of EIA consultants with flawed assessment reports. In the case of the Kundankulam Nuclear Project, which is now in operation, the report was prepared by the National Environmental Engineering Research Institute (NEERI), which was amongst the list of flawed EIAâ&#x20AC;&#x2122;s put forth by the QCI in 2007. xcvi Such instances entirely defeat the process of EIA as a solution to the problems of society. The Indian government can under the powers granted by Section 3(3) of the Environment Protection Act, 1986, create an independent regulator, which would deter the political and bureaucratic functioning of the EIA mechanism. The establishment of the National Green Tribunal has done much to the cause of the environment and the effective implementation of the present provisions without providing scope for exploitation of the plethora of loopholes present in the notifications. The National Green Tribunal also has wider powers to go into the merits of even policy decisions impacting the environment. The NGT also cannot circumvent the prevalent law in the form of notifications, which are pro-industrialist considering the number of EIA scams and the multiple amendments brought about in the past two decades, with no significant remedial measures. The creation of an independent regulator would provide the monitoring that goes into enforcing the laws of the land. This scenario of a single regulator can be compared to that of a Comptroller Auditor General (CAG) or Securities and Exchange Board of India (SEBI), with little or no political influence in their functioning, concerning a wide number of issues. Page | 43

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In 2011 the Supreme Court in its order xcvii requiring an independent regulator for environmental clearances, clarified the extent of judicial review in cases where environmental clearances were already granted. The intentions of the Indian government become ostensibly clear and apparent for the reasons given for the nonimplementation of this order. The reasons stated before the Supreme Court include reasons that such a regulator would face the same fate as that of the National Green Tribunal with problems related to finance and infrastructure and instead proposed a separate authority.xcviii The proposition of an authority would not remedy the lacunae that the present system faces considering the political, bureaucratic and industrial stranglehold. In a country like India, where survival trumps the issues of the environment, the kind of accountability that the people demand in such circumstances from the political class, must be understood in its entire practicality. For a society to move upwards from one stage to another of Maslow’s hierarchy of needs, there needs a satisfaction of the basic needs, in a developing country such as India. The implementation of the EIA is eventually a long-term benefit to society rather than a short term, profit-earning asset which yields no net result. The hurdles that a developing economy faces in terms of balancing the interests of society by the way of sustainable development can be tackled through reasoned decision making. As Vanderheiden notes that ‘a law that mandates sustainable forestry practices on every day but Sunday would obviously be ineffective in maintaining a sustainable forest’.xcix This Indian approach requires a shift to a stable, effective and transparent EIA mechanism. In the 21st century there is a great demand for green products especially in developed countries and this can to be some extent attributed to the environmental awareness and education. The concept of corporate social responsibility has also provided a humanistic concern towards industrial ventures and provided a rationale for a form of self-actualization for the corporate world to meet the requirements of environmental impact assessments. Thus in this scenario there is a shift from meeting requirements not out of legal compulsion but rather a form of social obligation. In this regard, the National Environmental Awareness Campaign (NEAC) since 1986 has been striving to create environmental awareness at the national level. The real shift from the process of Environmental Impact Assessment can only be a change in the mind-set and policy of the people and the government, concerning the very need of the environment. The lack of integrated spatial planning in India and its confinement to urban areasc has also acted as a deterrent to the principles approach to the policy of sustainable development. The legal sanctity granted to the priority to protect the environment

must also gain political and social sanction. The Page | 44

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environmental jurisprudence in India has also developed as a result of the creative judicial interpretation in line with the constitutional objectives and international obligations of advocating a healthy environment. The judicial check on the clearance process has provided ample guidelines and orders to restore the purpose of EIA within the flawed process of its implementation. Thus an effective judicial check cannot function when the political will is lacking over creating a definite and unambiguous legislation, as an antidote to the venom of inefficient and corrupt practices. In the DTC case the court stated that ‚There is only a complacent presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it‛. cii This presumption of the executive performing its necessary duties does not provide an overarching truth to the present situation of India’s environmental concerns. The number of EIA scams and inadequate EIA reports presents the grim reality with which greed has overtaken the need for sustainable development. A country like India cannot wait for the eventual working of the Environmental Kuznets Curve, as the other developing countries might think of as an eventual outcome. Environmental quality is a matter of social choice and societies may differ, in their reviews as to what constitutes an "acceptable" level of environmental quality.ciii The Indian perception must change to realize the value of the environment, where one cannot subsidize growth. As John Maynard Keynes once said ‘Long run is a misleading guide to current affairs. In the long run we are all dead’, this statement aptly applies to the mind set and the dilemma people face over the allocation of resources in society. The long run, as is the case of Environment Impact Assessment, discerns the future as well as current benefits, but the onus of implementing this safeguard on exploitation requires the will of the government as well as the concern of the people.

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Pyarelal, Mahatma Gandhi, Volume X: The Last Phase, Part II (Ahmedabad: Navajivan, 1958), p.552

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iii

Ibid at 7.

Kalpana. Markandey and S. Simhadri , Globalization, Environment and Human Development. 1st ed.

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Paolo Contini and Peter H. Sand (1972).Methods to Expedite Environment Protection: International

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P. Leelakrishnan .Environmental Law Case Book. 2nd edition .New Delhi: LexisNexis

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Constitution of India, 1950 Art 48A.

viii

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[1987] 63-64. xxiii

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<http://www.cseindia.org/node/383> accessed 22 October 2013. xxv

Leo F. Saldanha, Abhayraj Naik, Arpita Joshi, Green Tapism: A Review of the Environment Impact

Assessment Notification 2006 (1st, Environment Support Group, Bangalore 2007) 18-22.

Page | 46

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Ibid at 25.

xxvi xxvii

Ministry of Finance, Government of India, 'Overview of Environmental Impact Assessment'

(toolkit.pppinindia.com

2011)

<http://toolkit.pppinindia.com/highways/module2-fgost-

ooeiaaec.php?links=fgost3> accessed 24 October 2013. xxviii

European Commission, 'Environment Impact Assessment of Projects' (www.ec.europa.eu 2011)

<http://ec.europa.eu/environment/eia/pdf/eia_case_law.pdf> accessed 24 October 2013. xxix

V. S. Vyas and V. Ratna Reddy, Assessment of Environmental Policies and Policy Implementation

in India, Economic and Political Weekly, Vol. 33, No. 1/2 (1998), p. 48-54. xxx

Manju Menon and Kanchi Kohli, From Impact Assessment to Clearance Manufacture, Economic

and Political Weekly, Vol. 44, No. 28 (2009), p. 20-23 xxxi

J. Mohan Rao, Whither India's Environment?, Economic and Political Weekly, Vol. 30, No. 13

(1995), pp. 677-686, 678-79. xxxii

Patrick Hossay Unsustainable – Global Environmental and Social Justice, Zed Books Ltd. New York

(2010) p.124. xxxiii

Mark Stallworthy,Understanding Environmental Law . First Edition ed. London: Thomson Sweet

and Maxwell, (2008) p. 5. xxxiv

Richard Macrory , Regulation, Enforcement and Governance in Environmental Law, Hart

Publishing 2010 p. 44. xxxv

Manju Menon and Kanchi Kohli, Environmental Decision-Making: Whose Agenda? , Economic

and Political Weekly, Vol. 42, No. 26 (2007), pp. 2490-2494. xxxvi

Ministry

Environment

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Forests,

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Ministry of Environment and Forest, Government of India, 'Environmental Impact Assessment: A

manual' (envfor.nic.in 2011) <http://envfor.nic.in/divisions/iass/eia/cover.htm> accessed 25 October 2013. xxxviii

Dunu Roy, Hydropower in Uttarakhand: Is 'Development' the Real Objective?  Economic and

Political Weekly, Vol. 43, No. 41 (2008), p. 19. xxxix xl

T. N Godavarman Thirumulpad v. Union of India [1997] 3 SCC 312 (SC). Kanchi

Kohli,

'Flawed

EIAs

sail

through'

(www.civilsocietyonline.com

2013)

<http://www.civilsocietyonline.com/pages/Details.aspx?304> accessed 31 December 2013. xli

CIEL, 'A Comparison of Six Environmental Impact Assessment Regimes' (http://www.ciel.org 2012)

<http://www.ciel.org/Publications/AComparisonof6EnvReg.pdf> accessed 4 January 2014. xlii

Transparency International, 'Corruption Perceptions Index 2012' (www.transparency.org 2012)

<http://www.transparency.org/cpi2012/results> accessed 28 December 2013.

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xliii

The Sarpanch, Grampanchayat v. Ministry of Environment and Forests, NGT (2011) Appeal No.2.

xliv

Ritwick Dutta and R. Sreedhar, 'A Framework for EIA reforms in the Western Ghats'

(http://www.ercindia.org/ 2010) <www.ercindia.org/.../EIA%20Reform%20paper%20for%20WGEEP.doc> accessed 1 January 2014. xlv

Supra note 26.

xlvi

Ritwick Dutta, 'Expert Appraisal Committee (EAC) – Role and Effectiveness [2012] ERC 1, 9.

xlvii

Parna Mukherjee, 'EIA Scams: Decaying the EIA Legal Regime in India' [2012] JERD 43, 7.

xlviii

Ritwick Dutta and R. Sreedhar, 'A Framework for EIA reforms in the Western Ghats'

(http://www.ercindia.org/ 2010) <www.ercindia.org/.../EIA%20Reform%20paper%20for%20WGEEP.doc> accessed January 4 2014. xlix

Ministry

Environment

and

Forests,

'Environment

Impact

Notification

(http://moef.nic.in/circulars 2011) <http://moef.nic.in/division/introduction-8> accessed 6 January 2014. l

Vellore Citizens Welfare Forum v. Union of India [1996] 1 SC 2715 (SC); M.C Mehta v. Union of India

[1997] 1 AIR 734 (SC). li

Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751.

lii

M.C Mehta v. Union of India AIR 1987 SC 965.

liii

World Commission on Environment and Development, Our Common Future 1987, p. 46-50.

liv

Article 19, Universal Declaration of Human Rights,1948.

Article 25, International Covenant on Civil and Political Rights, 1966.

lvi

Article 23, American Convention on Human Rights, 1969.

lvii

Jonas Ebbesson and Phoebe Okowa (2009).Environemntal Law and Justice in context. 1st edition

.New York: Cambridge University Press. p.212. lviii

Brian D. Clark, Improving Public Participation in Environmental Impact Assessment   Built

Environment (1978-), Vol. 20, No. 4), pp. 294-98. lix

The Oxford handbook of International Environmental Law, Daniel Bodansky, Jutta Brunnee and

Ellen Hey, Oxford University Press 2007 New York p. 687. lx

Vishwambhar Prasad Sati, An Introduction to the Environment : Rawat Publications 2012, New Delhi

p. 230-234. lxi

Raghav Gaiha, Use of Local Knowledge in Impact Assessment: Evidence from Rural India

Economic and Political Weekly, Vol. 39, No. 40 (2004), pp. 4471-4477,78-79. lxii

An Introduction to the Environment : Vishwambhar Prasad Sati Rawat Publications 2012 New Delhi

p. 230-234. lxiii

Roma Mukherjee, Environmental Management and Awareness Issues, Sterling Publishers 2002

New Delhi p. 193.

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lxiv

Arjya B. Majumdar, Debosmita Nandy, Swayambhu Mukherjee, Environment and Wildlife Laws in

India, LexisNexis first ed. New Delhi 2013 p. 138. lxv

Medha Patkar & Anr. v. Ministry of Environment and Forests & Ors., NGT (2013) Appeal No.1.

lxvi

Jan Chetna and Another v. Ministry of Environment and Others [2012] 1 28 (NGT).

lxvii

Dinesh Trivedi MP and Others v. Union of India and Others [1974] 4 SCC 306 (SC).

lxviii

Seema Kumar, 'India’s Environmental Impact Assessment Process & Failure to Protect the Yamuna

River

from

the

Thirst

Development'

(www.earthtrends.wri.org

2008)

<http://www.earthtrends.wri.org/blog/2008/10/india%E2%80%99s-environmental-impact-assessmentprocess-failure-protect-yamuna-river-thirst-dev> accessed 8 January 2014. lxix

South Asia Network on Dams, Rivers and People, 'EIA Process in Large Hydro Power Projects:

Critical Weaknesses and Public concerns' (www.sandrp.in 2006) <http://sandrp.in/> accessed 7 January 2014. lxx

Ritu Paliwal, 'EIA practice in India and its evaluation using SWOT analysis' [2006] EIAR 492, 506.

lxxi

G.Y Shitole and Ram Sable, Environmental Degradation: Issues and Challenges, 2012 Global

Research Publications p. 2-3. lxxii

Ibid at 8.

lxxiii

N Das Gupta ,Environmental Accounting, Wheeler Publishing 1997 first edition New Delhi p. 11-

12. lxxiv

Siri Kalnins, An International Assessment of Environmental Impact Assessment, Ambio, Vol. 9,

No. 3/4, The Baltic (1980), p. 197. lxxv

Maurice L. Warner and Edward H. Preston, A Review of Environment Impact Assessment

Methodologies, 1974 , National Service Center for Environmental Publications , Washington p. 18. lxxvi

N. Bhaskara Rao , Good Governance: Delivering Corruption- Free Public Services, Sage

Publications India New Delhi 2013, p. 234. lxxvii

Abhijit Dutta Sunita Dutta P.N Pandey, Environment Issues and Challenges, A.H.P Publishing

Corporation New Delhi 2005, p. 89. lxxviii

United Nations Development Programme, 'EIA Training Resource Manual' (www.unep.com 2002)

<http://www.unep.ch/etu/publications/EIAman_2edition_toc.htm> accessed 4 January 2014. lxxix

B. Sadler, Handbook of environmental impact assessment framework for environmental,

sustainability assessment and assurance (1st, Oxford, London 1999) p. 12-29. lxxx

Rajiv Bhatia and Aaron Wernham Integrating Human Health into Environmental Impact

Assessment: An Unrealized Opportunity for Environmental Health and Justice, Environmental Health Perspectives, Vol. 116, No. 8 (Aug., 2008), p. 993.

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lxxxi

Bikram Kumar Dutta and Sanhita Bandyopadhyay, 'Environmental Impact Assessment and Social

Impact Assessment - Decision Making Tools for Project Appraisal in India' [2010] IJHSS 2, 6. lxxxii

Jos Arts, Paul Tomlinson and Henk Voogd, EIA and SEA Tiering: the missing link?  Position

Paper Conference on ‚International experience and perspectives in SEA‛ International Association of Impact Assessment 26-30 September 2005, Prague. lxxxiii

International Association for Impact Assessment, Statement on impact assessment to the Third

Preparatory Committee Meeting of the World Summit on Sustainable Development (WSSD), New York,(2002) p.25 . lxxxiv

John Glasson, Environmental Impact Assessment: The Next Steps? Built Environment ,Vol. 20,

No. 4, (1994), p. 278. lxxxv

P. Leelakrishnan (2009).Environmental Law in India. 3rd edition .New Delhi: Lexis Nexis . 315.

lxxxvi

Ibid at 317.

lxxxvii

Sukh Pal Singh, Environmental Management through Environment Impact Assessment, 31

Ban.L.J.(2002) p.129. lxxxviii

Ramachandra Guha How Much Should a Person Consume ? Thinking through the Environment

Permanent Black 2006 New Delhi, p.70. lxxxix

Subhash Kumar v. State of Bihar, AIR 1991 SC 420; Charan Lal Sahu v. Union of India AIR 1990

SC 1480. xc

Divya Badami Rao and M. V. Ramana Violating Letter and Spirit: Environmental Clearances for

Koodankulam Reactors, Economic and Political Weekly, Vol. 43, No. 51 (Dec. 20 - 26, 2008), p. 14-18. xci

Leo F. Saldanha, Abhayraj Naik, Arpita Joshi, Green Tapism: A Review of the Environment Impact

Assessment Notification 2006 (1st, Environment Support Group, Bangalore 2007) p.17-18. xcii

T. N Godavarman Thirumulpad v. Union of India [1997] 3 SCC 312 (SC).

xciii

Business Line, 'Environment assessment is a joke, says Jairam: wants 3rd party EIA'

(www.thehindubusinessline.com

2011)

<http://www.thehindubusinessline.com/government-and-

policy/environment-assessment-is-a-joke-says-jairam-wants-3rd-party-eia/article1553560.ece>

accessed

10 January 2014. xciv xcv

M.C Mehta v. Union of India [1997] 1 AIR 734 (SC). Kanchi

Kohli,

'Flawed

EIAs

sail

through'

(www.civilsocietyonline.com

2013)

<http://www.civilsocietyonline.com/pages/Details.aspx?304> accessed 8 January 2014. xcvi

D. Nagasaila and V. Suresh, 'Kudankulam on shaky legal ground' (www.thehindu.com 2012)

<http://www.thehindu.com/todays-paper/tp-opinion/kudankulam-on-shaky-legalground/article4065720.ece> accessed 11 January 2014. xcvii

Lafarge Umiam Mining Pvt. Ltd. v. Union of India [2010] 1 W.P (C) No. 202 I.A No 2609-2610 (SC).

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xcviii

Utkarsh Anand, 'Govt tells SC regulator for green nod not feasible' (www.indianexpress.com 2013)

<http://www.indianexpress.com/news/govt-tells-sc-regulator-for-green-nod-not-feasible/1186471/> accessed 8 January 2014. xcix

Steve Vanderheiden, Atmospheric Justice: A Political Theory of Climate Change (Oxford

University Press, New York, 2008) p.132. c

N. Raghu Babu, 'Environmental planning as a tool for environmental protection - The need and the

possibilities'

(www.gisdevelopment.net

<http://www.gisdevelopment.net/application/environment/overview/envo0002pf.htm>

2010) accessed

January 2014. ci

Bombay Dyeing & Mfg. Co. Ltd v. Bombay Environmental Action [2006] 1 Civil Appeal NO. 1528

(SC). cii ciii

Delhi Transport Corporation v. DTC Mazdoor Congress [1991] 1 SCC 600 (SC). Environmental Policies in Developing Countries   Author Ingo Walter and Judith L. Ugelow

Ambio, Vol. 8, No. 2/3, Technology, Development and Environmental Impact (1979), p. 102.

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VIOLENCE AGAINST WOMEN – ‚THE DARK SIDE OF FAMILIES‛ RICHA KASHYAP & VIVEK SAURAV Keywords: Sexual Violence, Family Violence, Criminal Law, Massive-Overhauling.

ABSTRACT Sexual Violence describes the deliberate use of sex as a weapon to demonstrate power over and to inflict pain and humiliation upon, another human being. Each society has mechanisms that legitimize, obscure, deny and thereby perpetuate violence against women. Powerful social institutions - the family, the community and the state perpetuate all the different categories of sexual violence and maintain status quo as far as women’s rights are concerned. The family has been traditionally considered as a retreat, where individuals are able to find security and shelter, a private heaven where peace and harmony prevail but throughout the world there are practices in the family that are violent towards women and harmful to their health. This essay tends to highlight the family violence which is generally hidden under the notions of intimacy of private sphere as the belief that family integrity should be protected at all costs preventing many women from seeking outside help. Focusing on these issues the essay has been divided into three parts. In Part I of the essay the authors will analyze the concept and determinants of sexual violence. Part II will throw lights on few illustrations of sexual violence occurring in the family like Female Genital

Mutilations, Incest, and Marital Rape, Forced Marriages, Prostitution etc… Finally Part III will conclude with some suggesting remedies which will reveal that how these offences are crimes of power, the conceptualization of which are highly gendered and the mechanisms of law are inadequate and require massive overhauling.

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SEXUAL VIOLENCE – CONCEPT AND DETERMINANTS ‚Of all the evils for which man has made himself responsible, none is so degrading, so shocking or so brutal as his abuse of the better half of humanity; the female sex.‛ - Mahatma Gandhi

Violence against women in India is an issue rooted in societal norms and economic dependence. Discriminatory practices are underlined by laws favoring men. Inadequate policing and judicial practices deny female victims proper protection and justice. Although female participation in public life is increasing and laws have been amended, India still has a long way to go to make Indian women equal citizens in their own country. Over the last several decades, measuring the scope and nature of violence against women has evolved into a global issue. Violence against women has captured the interest of researchers, advocates, clinicians and service providers in a variety of disciplines including anthropology, criminology, epidemiology, medicine, psychology, sociology, and women’s studies. i Violence is generally conceptualized in terms of physical force and destructive conduct. The simplest definition of violence is ‘behavior designed to inflict injury on a person or to cause damage to property’. ii In a narrower connotation, violence implies an act carried out with the intention or perceived intention of physically hurting another person. iii It is the use of force or constraints to cause harm by commanding obedience to a required set of social or moral values.iv Sexual Violence is all pervasive and manifests itself in a number of forms, which exists in all institutions of life. It is possible to classify sexual violence in four main categories. First is direct violence, which is most commonly emphasized, examples of which are rape, molestation, forced prostitution, female genital mutilations, etc. Second is indirect violence, which covers harmful, sometimes deadly situations or actions which, though due to human intervention, do not necessarily involve a direct relationship between the victims and the institutions or the persons responsible for their plight, for e.g., child marriage and arranged marriages, where the women is not Page | 53

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allowed to make a choice regarding the marriage partner. Third is repressive

violence- which relates to three groups of fundamental right- civil rights, political rights and social rights. Repressive violence is used to suppress political or class movements, for e.g., rape or sexual abuse targeting towards dalit (low caste) women, mass rapes during international or internal armed conflicts. Fourth is alienating

violence, which deprives the woman of her higher rights, such as right to emotional, cultural or intellectual growth. Examples are marital rape, prescribing dress code to regulate female sexuality, etc. v

THE CONCEPT OF GENDER VIOLENCE The addition of ‘gender’ dimension to violence implies that violence, which is perpetrated on women because of their womanhood. The General Recommendation 19 adopted in 11th session of the Convention on Elimination of All Forms of Discrimination Against Women ( CEDAW), in 1992, describes gender violence as follow: ‚Violence which is directed against a women because she is a women or which effects women disproportionately. It includes acts, which inflict physical, mental or sexual harm or suffering, threats of such acts, coercion, and other deprivation of liberty‛. In a landmark resolution 48/104, adopted by the UN General Assembly at its 48 th session, in December 1993 – Declaration on the Elimination of Violence against Women- violence against women is defined as: ‚Any act of gender based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.‛ vi Gender Violence permeates through the past into the future creating a timelessness afloat into the realities of women’s existence. Century’s old brutal expressions of Page | 54

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gender violence are meagerly changed with time, thus, creating a belief that we are still living past in present. vii Gender Violence transcends through all phases of a woman’s life and acquires innumerable forms on the broad spectrum, including feticide, infanticide, sexual violence, domestic violence, etc. Nairobi Forward looking Strategies states that ‘violence against women exists in various forms in all societieswomen are beaten, mutilated, and burned, sexually abused and raped. Such violence is a major obstacle to the achievement of peace and should be given special attention’.viii Due to the immense vastness of the issue, the present study confines itself to one of the crucial and sentimental aspect of gender violence - sexual violence occurring in the family.

SEXUAL VIOLENCE OCCURRING IN THE FAMILY The family has been traditionally considered as a retreat, where individuals are able to find security and shelter, a private heaven where peace and harmony prevail. However, the family may be a ‘cradle of violence’ for the women who are subjected to violence at home.ix Throughout the world there are practices in the family that are violent towards women and harmful to their health. Family Violence is generally hidden under the notions of intimacy of private sphere as the belief that family integrity should be protected at all costs prevent many women from seeking outside help.x The law and criminal justice system generally do not recognize sexual violence occurring in the family as a separate crime, hence such cases are rarely prosecuted and the women have no option, but to suffer in silence. Much of the violence against Indian women is in the form of domestic violence, dowry deaths, acid attacks, honor killings, rape, abduction, and cruelty by husbands and in-laws. xi Due to high preference by husband and in-laws for male children rather than female children every two hours in India, a Woman Dies from an abortion worldwide. xii In 2012, according to the National Crime Records Bureau (NCRB), dowry deaths – or murders of women by the groom or in-laws because of unmet high dowry expectations – Page | 55

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constituted 3.4% of all crimes against women. Last year in India on average 22 women were killed per day because their families could not meet dowry demands. The NCRB statistics indicate that an Indian woman is most unsafe in her marital home with 43.6% of all crimes against women being "cruelty" inflicted by her husband and relatives. These numbers do not include incidences of marital rape, as India does not recognize marital rape as an offence. Mentioned below are few illustrations of sexual violence occurring in family: 1. FEMALE GENITAL MUTILATIONS: Female Genital mutilation (FGM), a deeply rooted traditional practice believed to have started in Egypt some 2000 years ago, has been reported in some major Asian Countries such as India, Indonesia, Malaysia and Sri Lanka. xiii FGM or Female circumcision as it is sometimes erroneously referred to, involves surgical removal of parts or all of the most sensitive female genital organs. It is an old age practice which is perpetuated in many communities around the world simply because it is customary.xiv FGM forms an important part of the rites of passage ceremony for some communities, marking the coming of age of female child. It is believed that by mutilating the female genital organs her sexuality will be controlled but above all it is to insure the women virginity before marriage and chastity afterwards. 2. INCEST: Incest usually refers to the sexual abuse of a child or adolescent within the family by a Parent, authority figure relative, even a more powerful sibling. Generally, incest victims are children because of their vulnerability and powerlessness though the possibility of inter family sexual exploitation and abuse of adult females cannot be ruled out. In many parts of the world incest is culturally tolerated and it is not listed as specific criminal offences in the penal laws of majority of countries. Incest occurs in varied forms ranging from forced masturbation, touching and fondling of genitals to rape. Indulgence of close male relatives including the fatherâ&#x20AC;&#x2122;s brothers, uncles and grandfathers is quite common. Incest is practiced by certain cults, like the Hindu Page | 56

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Sakti sect in India, in the belief that it is a higher grade of sexual intercourse and an advance step towards religion. xv In an endogamous Indian Group called Baiga, incestuous marriage is practiced. xvi In a study conducted by RAHI, an NGO in India, it was found that out of 457 respondents, 40 percent had been abused by at least one family member.

xvii

According to the WHO one in every 10 Children is sexually

abused, often by a family member. Victims of Incest suffer from extreme physical and psychological disorders. Often the Psychological problem that crop up due to incestuous abuse, have long term effect and decapicitate the victim from indulging in other relationships normally. Incest is always accompanied by a deep sense of betrayal of trust and helplessness, which disables the sufferer from forming normal sexual and emotional bonds in the relationships. 3. MARITAL RAPE In a majority of the countries in the world; husbands enjoy ‘criminal law immunity’ for raping their wives.

Marital Rape has existed as long as the institution of

marriage. xviii According to a US Sexual Assault Information Sheet, one in seven women reported that they had been raped by their husbands. xix Rape in marriage is vastly unrecognized by the legal systems all over the world. This legal reluctance is the product of the social notion that the wives are the properties of their husbands. To be more precise, viewing of wife as the sexual property of the husband is the inevitable heritage of a patriarchal society.xx The Verma Committee suggested that marital rape should be recognized as a criminal offence but the suggestion was opposed by all major Indian political parties. xxi 4. CHILD MARRIAGES In developing countries, girls are often wed even before attaining the age of puberty. The low age of marriage is one of the factors which contribute to the severe violations of human rights of women. According to WHO report, over 50 percent of

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first births in many developing countries are to women aged less than 19 years. xxii In India, in a few states, like Rajasthan, MP and Gujarat, thousands of children are married off on auspicious days, like Akshaya Tritiya and in few cases marriages are reportedly solemnized when the prospective bride was still in womb. xxiii Considering the vast rampant practice of child marriages, the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriage 1962, was opened for signature on 10 November 1962.xxiv The Convention contemplates full and free consent of the parties to the marriage, xxv which shall not be less than 15 yearsxxvi and emphasizes the compulsory registration of the marriages. It is pathetic that a lot of countries, including India, have not signed this Convention. However, there are recommendary laws regarding age of marriages, but in most countries, formal legal systems based in courts operate alongside customary and traditional systems based in local institutions or families. xxvii It is quite obvious that the child bride submits to sex with an older man and her immature body must endure the damages of repeated pregnancies and childbirths, which ultimately lessens the life expectancy of girls, affects their health, nutrition, education, and employment opportunities and lowers their economic participation rate. All these consequences severely nullify the human rights of the girls involved. 5. FORCED MARRIAGES A forced marriage is a marriage conducted without the valid consent of both the parties, where duress is a factor. xxviii Forced marriages are different from arrange marriages to which the parties give consent happily for the matches selected by the family. Forced marriages may involve both men and women as victims, but primarily it is consider to be an issue of violence against women. The issue of forced marriage is a violation of basic human rights and a form of child abuse. Often, victims are subjected to non-consensual sex, physical and emotional abuse, isolation, and threats

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of violence. International law and conventions also support an individual's right to self-determination, minimum marriage ages and the rejection of abuse of women and honor based violence. xxix 6. RAPE Rape is the most pervasive form of sexual violence, which cuts across state borders and cultures, used in all countries and in all cultures as weapons of degradation and terror against women. Rape is an intrusion into the most private and intimate parts of a woman’s body as well as assault on the core of her self.xxx Rape is the desire for power (to dominate, subordinate, control) and feelings of hostility (contempt, anger) are vented out on the victims, transforming them from persons to objects and often plunging them into a ‘rape crisis syndrome’xxxi A woman’s risk of being raped by someone, she knows is four times greater than being raped by a stranger. xxxii But such incidents of the crime of rape remains vastly underreported because victims fear from being re-victimized in the criminal justice system, of not being believed, guilt, self-blame and from failure of the rape victims to equate their humiliating experience with the legal definition of rape. There are various incidents of rapes done by family members like father, brother, uncles etc but remains unreported. Recently in north Kerala's Kannur district, a father, brother and an uncle of a 13 yearold girl were arrested for allegedly raping the minor for the past two years. The victim has also told the police that her elder sister, who had committed suicide two years ago, had also been raped. xxxiii In yet another shocking incident of child rape in Kerala, the girl was first raped by a neighbour with her mother's connivance when she was only 11 years. This was followed by her father allegedly raping her several times.xxxiv About a 1,000 rape cases were registered last year in Mumbai with home as the place of crime. The figure, released by the CID, was about 200 more than in 2011. Going by the CID's data, home is the most unsafe place for a woman. xxxv

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Even cases reported in Gujarat shows that, rapist is not a stranger lurking in the shadows to pounce on victims. He is most likely to be a family member, a distant relative, a neighbour or even an employer. Police records state that of the 439 rape cases reported in the state, 438 victims have told investigators that they knew the assailant. In past five years, the ratio of cases where the assailants were known to rape victims hovers at around 98 per cent. xxxvi Of the 24,923 rape incidences in India in 2012, 98% of the offenders were known to the victim which is higher than the global average of approximately 90%. xxxvii Known people do not even spare little girls who have not even started school. In Bapunagar recently, a four-year-old was raped by a 23-year-old man. He was her neighbour who lured the girl with games and chocolates and took her to his residence to play. He played with her life instead. Most of such cases remain unreported as maximum sexual violence’s in these states are done by the members of family and thus the stories are not projected to the outer world. "It is a myth that Gujarat or Kerala is safe for women. Here, danger lurks more in the homes and neighbourhoods as in majority rape cases. To my mind, this is a bigger breach of trust, as the known men cultivate trust in the girls and execute the crime with great planning in cold blood.xxxviii 7. PROSTITUTION

‚Generation after generation, all the women in that sub-caste, they become prostitutes. And nobody thinks that it’s unusual, that it’s something horrendous.‛ - Urmi Basu In India every 40 girls under the age of 15 are forced into prostitution. Nearly 1.2 million sex workers are below the age of 18 with about 40 underage girls being forced into prostitution on a daily basis. With the 8 % of increase in the flesh trade, India has become one of the prominent names in child prostitution. Research suggests that there may be as many as 10 million children in involved in prostitution worldwide. There’s a high rate of suicides among these girls because they have no Page | 60

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escape. Girls who tried to get are beaten black and blue and locked up all over again." xxxix In some Indian villages, girls are sent into prostitution by their families - a tradition that began as religious obligation but is now continued for money. xl Pastor Paul Ciniraj of Paul Ciniraj Ministries in India, describes the tragic cycle of prostitution that Dalit (depressed community) girls, as young as 10-years-old, are forced into by their own families in Rajasthan State. The girls are mostly aged between 12 and 15, though some are as young as 10. They stand at the roadside along with their fathers and brothers who fix the ‘price’ for them. Members of the girls families are well aware of the brutal behavior of customers who often ravage the little girls. Many of the child sex workers contract sexually transmitted diseases.

xli

The tribal community of Bedia that resides along the Jaipur Highway outside Bharatpur takes pride in their family business which is "Prostitution". Customarily, were entertainers in Rajasthan and MP. It was their occupation to for the women and girls to perform for feudal lords. With the changing times Prostitution has become their

family

tradition.

Adolescent girls are initiated into the family 'tradition', while their brothers become 'agents'. According to Prof K K Mukherjee, former head of department of social work, DU, "There are 91 families in Khakranagla. Of these, 75 are of Nat, Bedia and Gujjar castes 46 of them engage in sex work.‛ Apart from the Bedia, there are other tribal communities such as the Kanjars, Nuts and Sanshis who takes up prostitution as their primary source of income. xlii

CONCLUSION The protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing appropriate sentence. xliii It is expected of the courts to operate the sentencing system as to impose such sentence which reflects the social conscience of the society. xliv At a fundamental and general level, what is Page | 61

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needed is a ‘social revolution’ for empowering women which must seek to reform ‚the mind-set and old thoughts of our society.‛ Such change cannot be achieved in a courtroom or through mass protest. It requires instilling particular values to boys and girls, at home, at school and in the public sphere. Conceptions of masculinity and femininity must be readjusted to place emphasis upon respect for the self and for others. This change in mind-set must be accompanied by institutional reform. Victims of violent crimes are brutalized not just by their attacker but thereafter by the system they appeal to or live with. Women in India tend not to appeal to the legal and criminal system because, far from being a source of protection and empowerment, they find that this system makes them even more vulnerable to abuse.xlv Firstly, India needs to talk to itself more to make its homes safer for women. Victims of family violence suffer inherently more than victims of stranger violence. It is not without controversy to suggest that an attack by an intimate partner is more deserving of censure than an attack by a stranger. xlvi The relative absence of a concept of ‘family violence’ in criminal law means that the criminal law—unlike the civil law—typically responds only to parts of the overall pattern of family violence. This may limit the role the criminal law can play in addressing family violence and may distort the handling of family violence within the criminal system. xlvii Criminal legislation must be amended to include specific offences committed by an offender who is in a family relationship with the victim because mostly family violence occur over a long period of time; and is typically under-reported and underenforced, and may occur in non-physical forms. As a result, it may be difficult to prove each particular incident of family violence. This effect flows on to other legal frameworks that depend on the criminal law, such as victims’ compensation, with the effect that family violence victims are also typically under-compensated. There may be alternative ways for the criminal law to deal better with cases of family violence, short of creating an offence of family violence but nonetheless responding to the seriousness of the conduct. These include options exercisable at the point of charging

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a person for an offence, as well options which emphasize family violence on sentencing.xlviii

REFERENCES i

Charle M. Renzetti, Jeffery L. Edleson & Raquel Kennedy Bergen, Violence against Women 23(2 nd ed.)

PR Raj Gopal, Social Change and Violence- The Indian Experience 4 (1987).

iii

Gelles and Straus, Freedom from Violence- Women’s Struggles from Around the World 10

(Margaret Schuller eds., 1992). iv Sandy Cook & Judith Bessant, Women’s Encounters with Violence- Australian Eperience 8 (Sage Series on violence Against Women eds., 1977). v vi

Dr. Vandana, Sexual Violence against Women 39 (Lexis Nexis) Art. 1, United Nations Declaration on the Elimination of Violence against Women, 1993

Yumi Lee, Violence Against Women- Reflections on the Past and Strategies for the Future- An NGO Perspective, 19 Adelaide law Review 45. viii Document of the ‘World Conference to Review and Appraise the Achievements of the UN Decades for Women: Equality, Development and Peace’, para 258 (1985) ix Ms Radhika Coomarswamy, Preliminary Report submitted by UN Special Rapporteur on Violence Against Women - Its Causes and Consequences 117 (1994). vii

UN Commission on Human Rights, Integration of Human Rights of Women and the Gender

Perspective - Violence against Women 9 (2003) xi

Dona John, Omair Ahmad & Maria Schneider, India: Violence Against Women. Current Challenges and Future Trends, FUR DIE FREIHEIT available at http://www.en.freiheit.org/India-Violence-AgainstWomen-Challenges-and-Trends/1322c27061i1p/index.html xii S. Anderson & D. Ray, The Age Distribution of Missing Women in India , Economics & Political Weekly; Dec., 2012 xiii

Ms Radhika Coomarswamy, Cultural Practices in the Family that are Violent Towards Women Report of the UN Special Reppporteur on Violence Against Women, Its Causes and Consequences 9 (2002). xiv Fact Sheet no.23, Harmful Traditional Practices Affecting the Health of Women and Children, Office of the Commissioner for Human Rights available at http://www.un.org xv

‘The Devdasis of Kudithini Gillage , Victims of a Denigrated Culture’, Groots Newsletter, Working Women’s Forum (1998), available at www.ashanet.org/library/articles/devdasis.199812.html; see also Ms. Radhika Commaraswamy, Report of the Special Rappoorteur on Violence Against Women, Its Causes and Consequences, on ‘Cultural Practices in the Family that are Violent Towards Women’ 28 (2002)

Id.

xvi xvii

The RAHI Findings: Voices from the Silent Zone- Women’s Experience of Incest and Childhood Sexual Abuse 14 (1998) xviii Diana EH Russell, Rape in Marriage 2 (2nd ed., 1990) xix xx xxi

Sexual Assault Information Sheet, Wisconsin Coalition Against Sexual Assault, 1992 Diana EH Russell, Supra Note. 18 Dona John, Omair Ahmad & Maria Schneider, Supra note 11.

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xxii

Ms Radhika Coomarswamy, Preliminary Report submitted by UN Special Rapporteur on Violence

Against Women, Its Causes and Consequences para 165 (1994) xxiii

Aarti Dhar, Prevent child marriages on Akshaya Tritiya, THE HINDU April 22, 2012 available at

http://www.thehindu.com/news/national/article3340183.ece (last visited on Dec. 23, 2013 at 11:00 hrs.) xxiv There are 17 signatories and 49 parties to the convention. xxv Art.1, Convention on Consent to Marriage, Minimum Age for marriage and Registration of Marriage, 1962 xxvi Id., Article 2. xxvii

United Nations Population Fund, The State of World Population-The Right to Choose:

Reproductive Rights and Reproductive Health 40 (1997). xxviii Ms. Radhika Commaraswamy, Report of the UN Special Rappoorteur on Violence Against Women, Its Causes and Consequences, on ‘Cultural Practices in the Family that are Violent Towards Women’ 40 (2002) Shahid Dastgir Khan, Forced Marriages – Violation of a Human Right, THE ASIANS Nov.12, 2011 available at http://theasians.co.uk/story/20111112_forcedmarriages_humanrights (last visited on Dec. xxix

29, 2013 at 13:00 hrs.) xxx Ms Radhika Coomarswamy, UN Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequenses, on ‘Violence in Community’ 5 (1997); see also Gail Abarbanel and Gloria Richman, ‘The Rape Victim’, Rape Treatment Center, Santa Monica Hospital 1 (1989) xxxi Andrew Karmen, The Criminal Justice System and Women-Offenders, Victims & Worker 186 (Barbara Price and Natalie j Sokoloff eds., 1982). xxxii Ms Radhika Coomarswamy, UN Report of the Special Rapporteur on Violence Against Women, Its

Causes and Consequences, on ‘Violence in Community 6 (1997). xxxiii Press Trust of India, 13-year-old girl raped by father, brother, uncle for two years in Kerala , THE TIMES OF INDIA Kozhikode Nov. 26, 2012 available at http://articles.timesofindia.indiatimes.com/2012-11-26/kozhikode/35365814_1_minor-sisters-shockingcase-juvenile-home (last visited on Dec. 10, 2013 at 9:30 hrs.). xxxiv Press Trust of India Kannur, Kerala: Minor raped by father, others for six years , THE HINDUSTAN TIMES July 19, 2013 available at http://www.hindustantimes.com/india-news/keralaminor-raped-by-father-others-for-six-years/article1-1094940.aspx (last visited on Dec. 10, 2013 at 08:00 hrs.) xxxv V Narayan, Home most unsafe place for women, THE TIMES OF INDIA Mumbai Nov. 18, 2013

available at http://articles.timesofindia.indiatimes.com/2013-11-18/mumbai/44201079_1_shakti-millsbrutal-rapes-crime-record (last visited at Dec. 10, 2013 at 15:00 hrs.) xxxvi

Parth Shastri, Trust raped within the family, THE TIMES OF INDIA Ahmedabad Dec. 25, 2012

availabel at

http://articles.timesofindia.indiatimes.com/2012-12-25/ahmedabad/35998691_1_sexualoffences-sexual-abuse-medical-student (last visited at Dec. 10, 2013 at 18:00 hrs.) xxxvii Rapists known to the victims were parents/close family members (1.6%), relatives (6.4%), neighbours (34.7%) and other known persons (57.2%) xxxviii V Narayan, Home most unsafe place for women, THE TIMES OF INDIA Mumbai Nov 18, 2013 available at http://articles.timesofindia.indiatimes.com/2013-11-18/mumbai/44201079_1_shakti-millsbrutal-rapes-crime-record (last visited on Dec. 12, 2013 at 14:00 hrs.) xxxix

Rebecca Raphael, Girls Forced into Prostitution, ABC NEWS July 13, 2013 available at

http://abcnews.go.com/2020/story?id=132685 (last visited on Jan. 2, 2013 at 11:00 hrs.)

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Mallika Kapur, Tradition forces girls into prostitution, CNN Sept. 21, 2011 available at:

http://thecnnfreedomproject.blogs.cnn.com/2011/09/21/tradition-forces-daughters-into-prostitution/ (last visited on Dec. 19, 2013 at 13:00 hrs.) Mercy Ciniraj, Young Dalit Girls Forced Into Prostitution, WordPress Oct. 21, 2013 available at http://pciniraj.wordpress.com/2013/10/21/young-dalit-girls-forced-into-prostitution/ (last visited on Dec. 10, 2013) xli

India Today Online, Child prostitution in India: Awareness can help!, INDIA TODAY Nov. 25, 2013 available at http://m.intoday.in/story/child-prostitution-in-india-awareness-can-help/1/326450.html (last xlii

visited on Dec. 12, 2013 at 12:00 hrs.) xliii xliv

Jashubha Bharat Singh Gohil v. State of Gujrat, (1994) 4 SCC 353. Ravjialias Ram Chandra v. State of Rajasthan AIR 1996 SC 787, 791

Felicity Le Quesne, Violence against women in India: culture, institutions and inequality, THE INTERNATIONAL Sept. 29, 2013 available at http://www.theinternational.org/articles/467-violenceagainst-women-in-india-culture (last visited on Dec. 30, 2013 at 16:00 hrs.) xlv

Recognizing Family Violence in Criminal Law - Aggravated offences occurring in a family violence context, (ALRC CPS 1) /7 Australian Law Reform Commission available at xlvi

http://www.alrc.gov.au/publications/7-recognising-family-violence-criminal-law/aggravated-offencesoccurring-family-violenc (last visited on Jan. 3, 2014 at 12:30 hrs.) xlvii D Tuerkheimer, Recognizing and Remedying the Harm to Battering: A Call to Criminalize Domestic Violence, 94 Journal of Criminal Law & Criminology 959, 972 (2003)

Recognising Family Violence in Criminal Law â&#x20AC;&#x201C; Family Violence as an Offence, (ALRC CPS 1) /7 Australian Law Reform Commission available at http://www.alrc.gov.au/publications/7-recognisingxlviii

family-violence-criminal-law/family-violence-offence (last visited on Jan. 2, 2014 at 11:30 hrs.)

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POLICING PRIVACY: REGULATING INFORMATION DISSEMINATION BETWEEN THE MEDIA AND THE POLICE ALWYN SEBASTIN & PRERNA KHATRI INTRODUCTION The role of the media was often understood as a mere mediator of primary information to the public. However, this role has been expanded over the past few decades owing to the era of globalization and democratization. i The media, has been the cornerstone for the ‘collusion of adverse opinions’. ii John Stuart Mill opined that the ideal role of the media is to discover the truth, and in doing so, it is justified in deliberating on various matters within the ‘marketplace of ideas’. iii Sometimes the functionality of the media is diluted with regulations posed by the state. Nevertheless, the freedom of speech and expression is quintessential for the proper functioning of the state system. This freedom not only enables public participation in a democratic society iv, but also plays an integral part of every citizen’s right to self development and fulfillment. v This freedom is not an end in itself but a means of identifying and accepting the truth. vi No right is absolute; every right has its restrictions. Many nations have imposed restrictions on this freedom in light of morality, national security and privacy. However, privacy, amongst the various other restrictions, also happens to be a positive right. Thus it is safe to assert that the right to speech and the right to privacy are mutually exclusive and hard to reconcile. Towards the end of the twentieth century, the nations of the world began to realize the growth of mass media in disseminating information to the public. The media Page | 66

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began gaining great importance in establishing state-citizen relationships. The media has taken on the position of the ‘fourth estate’ vii, aiding the state in its communication to its citizens. This confers upon the media, as sense of public accountability in delivering truthful and resourceful information.viii However, in an attempt to appeal to the public, the media often oversteps its responsibility and invades into people’s privacy.ix In an attempt to reconcile the differences between the media and its citizens, the Indian Parliament has introduced the Privacy Bill, 2011 that is pending before the house for perusal. The paper attempts to provide a critical appraisal of the Bill, thereby ensuring the authenticity on information received and delivered by the media. The growing casual encounters between the police and media personnel, has raised crucial questions with regard to the violation of privacy. x Lastly the paper attempts to provide recommendations in order to foster a healthier and more accountable police-media relationship.

INVASION OF PRIVACY BY THE MEDIA The freedom of press is regarded as ‚the mother of all other liberties‛ in a democratic society.xiThe Constitution of India, 1950 does not explicitly provide for a ‚freedom of press‛. However, such a guarantee can be said to be derived from Article 19(1)(a) of the Constitution. xii Nevertheless, the freedom is often misconstrued to mean a press that is free to disregard its responsibility. xiii. In the case of Time Inc. v. Hillxiv, the U.S. Supreme Court observed that the constitutional guarantee of freedom of speech and press are not for the benefit of the press so much as for the benefit of all the people. xv Summing it up, Arthur Hays says that the crux of the freedom of press is not the publisher’s freedom to print but the citizens’ ‘right to know’. xviThe expression ‘right to know’ is valid so long as it does not interfere with any of an individual’s legal rights. When the press or the media infringes a man’s justifiable right by prying into his personal life, it results in an instance of invasion of the individual’s privacy.

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‘Privacy’ was seen as a collection of distinct rights. It arises from instances of a general right to privacy such as trespass, breach of confidence, copyright and defamation.xvii However, by virtue of the aforesaid instances being general in nature, their scope is restricted, making them ill-suited to the protection of privacy.

With the advent of increasing powers of the media and a tremendous advancement in technology, countries all around the world are starting to realise the proportional misuse which this kind of advancement brings. For instance, in the Radia-tapes case, a writ petition was filed before the Supreme Court challenging unauthorised publication of private conversations between industrialist Ratan Tata and Nira Radia.

xviii

The question for consideration before the Court was whether the

publication of the private conversations was covered under the exception of public interest? This case highlighted the burning need for legal recognition and the consequent protection of the inherent right of privacy in India. Now, let us look at how far the Indian legal system goes, so as to enumerate the aforesaid. In India, the question of including ‘privacy’ as a fundamental right arose in 1964 in Kharak Singh v. State of U.P. &Ors.xix which equated privacy to an essential element in human existence. The view was strengthened in Autoshankar’s case xx wherein the Supreme Court held that privacy is implicit in the right to life and liberty guaranteed to the citizens of India by Article 21 of the Constitution. It is a "right to be left alone".xxi Apart from judicial precedents on privacy, the main legal provision that deals with data protection is Section 43A of the Information Technology Act, 2000 which provides a civil remedy in the form of compensation proportional to the extent of damage caused by the lack of adequate security measures taken by those persons mentioned in the provision. The Section simply put, provides a remedy to an individual, against those organisations controlling confidential or private data which fail to exercise reasonable security measures. The two major lacunae in this provision is firstly, it is limited to only ‚corporate persons‛ i.e., a company, a firm, sole

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proprietorship or other association of individuals, engaged in commercial or professional activities. Therefore its application is restricted to the private sector alone, leaving the activities of the public sector completely unaccounted for. The second concern is that religious and social organisations would be completely excluded from the purview of this provision as their activities are considered to be neither within the bracket of ‚commercial‛ nor ‚professional‛ activities.

Therefore, to create a more comprehensive law, the Government has proposed a ‘Privacy Bill, 2011’ which is still pending before the Parliament for consideration. For the purpose of the present paper, it is expedient to discuss the merits and demerits of the proposed bill in length.

CRITICAL ANALYSIS OF THE PRIVACY BILL, 2011 A.

SCOPE AND EXTENT

(i)

Object Of The Act The object clause of the Privacy Bill, 2011 makes a citizen’s constitutional right to privacy a statutory right. However, the flaw in the object clause is that it is unable to clearly mention the reason for having such an objectxxii, unlike the RTI Act, 2005 that follows up the declaration of the right to information with the need to ‚promote transparency and accountability in the working of every public authority‛. Another component that the object clause is devoid of, is that it fails to mention that the right to privacy is not absolute.xxiii There is a need to broadly mention an exception to the right to privacy as the interpretation of the Act is often made with reference to the object clause. xxiv

(ii)

Applicability Of The Act The object clause states that the Bill is applicable to only citizens of India. This provision does not accommodate the possibility that there can be a wrong (civil or criminal in nature) committed by a foreign entity operating in India. Agreed, Section 8 of the Bill provides that foreign non-citizens operating in Page | 69

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India must elect a representative who is a resident of India. However, the debatable issue here is that, in case of a default on the part of the foreign entity, the representative will be held liable and the actual defaulter will not be penalised. In the recent U.S. snooping incident, according to top-secret documents provided by a NSA whistleblower, the American agency carried out intelligence gathering activities in India using a program called PRISM. It collected information about certain specific issues from the Indian offices of Google, Microsoft, Facebook, Yahoo, Apple and YouTube. xxv In order to regulate and restrict the occurrence of such activities we think a change in the wording of the aforementioned Section is mandatory. Also, logically speaking if a man’s inherent right to privacy under Article 21 is applicable to all individuals,xxvi then it is only befitting that the statutory right to privacy must also be applicable to all persons (citizen or not). xxvii Hence, there is a need to re-define ‚individuals‛ u/s 2(xvi) of the Bill to include even foreign nationals. B. (i)

ABSTRACT NATURE OF PRIVACY What is ‚Right to Privacy‛ ? It is crucial for any society to have laws relating to the protection of these private rights and define the contours of ‚privacy‛ and the right to it unequivocally. Section 3 of the Bill simply confers upon the citizens the power to exercise the right to privacy but fails to define what ‚right to privacy‛ is. Although Section 6 gives us an idea of what a ‚reasonable expectation‛ of privacy is, the Bill does not give us an explicit definition of what the right includes. In 2010, the media reported that Sunanda Pushkar, a close friend of the Minister of State for External Affairs, Shashi Tharoor, holds a significant stake in the IPL Kochi team. The media exposure led to the exit of Shashi Tharoor from the government. While the media’s questioning of Pushkar’s holdings was rightful, the media’s coverage of her past relationships and how she dressed had no bearing on public interest. xxviii

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(ii)

Ambiguous phrase (a)

The phrase ‚processing‛ as defined in Section 2(xxiv) is broad and has

the danger of being interpreted in favour of media personnel. ‚Processing‛ needs to be defined in such a manner that any person involved in any point of the processing chain, cannot enjoy complete access to the full length of the confidential information. The law must allow enforcement agencies like the police but exclude the media as the victim will wish to share the details of the wrong done to him to the police alone and not come under the radar of the public eye. The judgment in Jessica Lal’s case had pointed out the failure of the police in deciding the accused first and then collecting evidence against him, instead of the reverse. Similarly, the media was blamed for exaggerating the offense of the accused in many other cases like the Aarushi Talwar case and the Gujarat Best Bakery Case. xxix Therefore a mere failure in procedural formalities proved to be fatal enough to deny justice to the victim. Hence to avoid such instances in future, the phrase ‘processing’ needs correction. This self-acclaimed authority in the absence of an effective checks and balance system is what encourages infamous concepts like trial-by-media. C.

INTERACTION BETWEEN MEDIA AND POLICE FORCE Section 10(4) of the Bill provides for the maintenance of confidentiality among persons employed by the data controller. This is the closest the Bill gets, with regards to regulating the interaction between two of the biggest data controllers in today's day and age. Therefore as of today, the Parliament does not have a stand on the constant backdoor interaction between the media and the police. The Bill neither prohibits nor allows for the interaction between the media and the police force. In fact it is this ambiguous position of the Parliament that led to confusion amongst the judiciary and the public in the Aarushi Talwar case. The media

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reports

disclosed

confidential

information

about

the

ongoing

CBI

investigation to the public, claiming to have received such information from the CBI officials personally.xxx The officials denied such leaks and the Court was forced to pass a restraining order to contain the media frenzy and give directions on responsible reporting. xxxi On a concluding note, if the Bill were to be passed in its present text, the aforesaid problems would continue to persist and would be counter-productive to its spirit. In order to evade such outcomes, the existing Bill must be supplemented with an efficient system of regulations governing the powers and functions of the Police department.

CHECKING POLICE-MEDIA ENCOUNTERS The quality of media houses is determined more by the authenticity of information provided and not by their ability to misguide the public with multiple takes on the same matter. Authentic information is a sign of a responsible media xxxii that respects the fragility of the matter being reported. In order to exonerate such unhealthy practices, it is important to get to the root of the issue and regulate the sources from which the media get their information. One such information provider is the police. In many cases, the media approach the police to retrieve information about an ongoing trial or investigation. Such a contact between the media and the police is neither recorder nor permitted. xxxiii This results in improper disclosure of information which is damaging to the public xxxiv and subsequently to the state at large. The police officials are usually expected to strictly refrain from disseminating information in the interest of confidentiality. xxxv However, on the other hand, the mediaâ&#x20AC;&#x2122;s existence relies upon uncovering information.xxxvi This conflict of interest is usually the cause for increasing speculations between the two entities. The Constitution of India confers upon the state, the right to frame laws in relation to policing, public order, courts, prisons, etc.xxxvii Therefore the role of the union in Page | 72

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regulating the affairs of the police is negligible. Past attempts made by the union in the form of the Terrorist and Disruptive Activities (Prevention) Act, 1987 and Prevention of Terrorism Act, 2002 to control police functions have clearly failed and have been repealed. xxxviii Nevertheless, there are many statutes that help govern the functionality of the police to a considerable extent, namely: 1. The Police Act, 1861: The Act being passed before independence finds its applicability throughout most part of India. It establishes the role of the police as mere law enforcement agency, and is silent as to a more appropriate service-oriented role of which enforcement is only a part. xxxix The Act casts a duty on the police to collect and communicate intelligence affecting the public peace.xl Further, it mandates that every police officer must maintain a diary in order to record complaints and other related information. xli On a close inspection of the law, it is identifiable that the police may disseminate information on grounds of public peace. Does ‘peace’ mean quenching public thirst for information or the media’s urge to stay in business? In cases like the Nitish Katara murder case xlii and the Bijal Joshi gang rape casexliii, if it were not for the media, the accused would have gone unpunished. This is a clear indicative of how the media has used unauthorized sources to pollute the minds of the judiciary as well. 2. The Indian Evidence Act, 1872: The Act entails that evidence cannot be given from unofficial public documents relating to any affairs of State, which includes information held by the police, without the permission of the head of the relevant department. xliv No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.xlv Further, no police officer can be compelled to reveal any sources of information relating to the commission of any offence. xlvi However these rules are clearly not adhered to. This makes it clear that it not the lack of law but the lack of enforcement of the law that defeats justice. Page | 73

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Since the police consider themselves as the law enforcement authority, laws that regulate the police itself is left unenforced or enforced at the will of the police. This opens the doors of arbitrariness as there exists no system of checks on the working of the police. 3. The Code of Criminal Procedure, 1973: The Code provides clear guidelines to illustrate the procedure to be followed in conducting investigation. The powers of the police during investigation include the right to examine witnesses, to search and to maintain records. xlvii Since these records are publicly held documents, they are made available to the general public for scrutiny. xlviii However such liberty must be given to the accused to decide whether the information seeker must be given such information or not. It is opined that the general rule must allow the subject of the information to have the greatest say in determining the dissemination of such information. However, the law may lay down the exceptions to this rule. In this way, privacy will be the rule and distribution will be the exception and not vice versa.

RECOMMENDATIONS AMENDMENTS TO THE PRIVACY BILL. 1. There is a need to change the words ‚citizens of India‛ to ‚all individuals‛ in the object clause of the Bill for reasons stated earlier. The Universal Declaration of Human rights provides for ‚The right [of alien individuals] to protection against arbitrary or unlawful interference with privacy, family, home or correspondence‛. xlix Alongside this change, Section 8 of the proposed Bill must be amended to provide for the penalising of a non-citizen if he acts in contravention to the provisions of the Bill. Thus, a man's inherent right to his privacy must be extended to citizens and non-citizens alike. 2. Also, the object clause of the Bill must contain the reason for having a statutory right to privacy and the corresponding exception to clarify the nature of the right being non-absolute. Therefore, the phrase that is likely to Page | 74

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best summarise the need to have a Privacy Bill would run along the following lines: ‚A free and democratic society requires respect for the autonomy of individuals, and limits on the power of both state and private organizations to intrude on that autonomy. Privacy is a key value which underpins human dignity and it is the reasonable expectation of every person.‛ l

3. Moving onto the crux of the Bill, we cannot help but emphasise the need to define the right to Privacy in crystal-clear terms. The proposed clause under Section 3 of the Bill that will define the right to privacy reads as follows: The right to privacy is a composite of the right of the individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or by publication of information li and the right of the same individual to freely choose under what circumstances and to what extent he will expose himself, his attitude and his behaviour to others. lii 4. The biggest concern in terms of ambiguity in phrases in the proposed Bill is with respect to ‚processing‛. The Bill provides that processing information is a function that vests with the data controller [ i.e., with the police department and the media houses].liii Although it is difficult to exclude both these entities from ‚processing‛ information, it is necessary that in the light of preserving privacy, it is essential that reasonable restrictions be placed on these entities. Although Section 19 lays down certain exemptions such as public interest, established code of ethics, prevention of crime, etc., these exemptions can be extremely threatening as the data controller need not take the consent of the data subject before processing such information. This is highly dubious and in contravention of similar provisions in foreign countries liv , wherein it is necessary that the data subject should unequivocally give his consent at every stage of processing information. Therefore the necessity of consent is an absolute requirement which sees no limitations. In light of the increasing human rights violations that are seen due to the acts of the policelv as well as by the media, it is essential that the data subject be Page | 75

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given some powers with respect to information being processed. Even in case of extremely grim situations, wherein it is impossible to take the consent of the data subject; there has to be an intimation made in a form of a reasonable notice. 5. The most important recommendation encompasses the enhancing of the powers of the self-regulatory body to include the responsibility of disseminating personal information to media men and any third party that seek such information for genuine purposes. A self-regulatory body is always preferred over the regulations adjudged by a Court of Law. lvi Therefore it is suggested that the already provided for (Section 43), National Data Controller Registry take up the aforementioned task. The registry must not only maintain records but must also be vested with the power to impart registered data to third parties [e.g., the Media] if it so deems fit. This will help resolve the issue of unofficial interactions between the media and the policemen. SETTING UP POLICE COMPLAINTS REGISTRY BOARDS The police are highly powerful in terms of their statutory powers and functions. Most Police Acts lvii do not focus on public accountability, thereby increasing their immunity from public scrutiny. Therefore, the police officials acquire a sense of hierarchical superiority over the public. This runs in contravention of the theory of popular sovereignty and good governance. However, in countries like the UK such a violation is addressed by the Independent Police Complaints Commission (IPCC), lviii which supervises and investigates public complaints against the police. Similarly South Africa has independent complaints authorities

lix

that investigate police

misconduct at both national and provincial levels. Furthermore, it is highly recommended lx that there exists a Body that works similarly even in India. The public may register complaints if the police have failed to fulfill its statutory obligations. This will help the public keep a check on their privacy being violated at the grass root level itself or before such sensitive information is conveyed to the

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media. The appointment and functioning of the proposed body may be done in tune with various foreign models that establish similar bodies. lxi Moreover, the Supreme Court, in Prakash Singh and Ors v. Union of India and Ors.lxiihas also expressed a need to set up a Commission to deal with complaints against the police department. However, there has not been any action in that regard. Therefore, the proposed Body has already been in the mind of the judiciary and it is just a matter of time that we have such a Body in place. Media Reporting, may create a lasting image on the victim’s image; however if such a body is established, the victim can prevent such a situation at an earlier stage. Prevention and not punishment must be the rule of the thumb. This will not only ensure greater accountability but will also act as an efficient system of checks and balances on the police departments.

CONCLUSION The parliamentarians have consistently infused the Indian democracy with libertarian values. The laws today have embodied balances sovereign control with ideals of transparency, individual liberty and good governance. The Consultative Committee on Information and Broadcasting is trying its best to incorporate the United Kingdom’s Leveson Report. The Report stems from the News of the World phone hacking scandal that riddled Britain in 2012. lxiii The report provides for strict regulations governing the media vis-à-vis the police and politicians. The Indian media faces issues like paid news, politically motivated news channels and media trials. The people of this country deserve to know the truth. A well informed society is one that is aware of both sides of the coin. Although, a sound opinion can only be framed when encountered with a marketplace of ideas such opinions cannot violate an individual’s privacy. Privacy must always be placed at a higher pedestal that the satisfaction of the public at large. It is opined that a progressive society is one that weighs one man’s pain over a million’s pleasure. The only justification for curbing the right to express is the fear of confrontation with the Page | 77

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truth. Nevertheless, all truth cannot be placed before the public for scrutiny. This is why privacy must be respected and shielded.

REFERENCES i

The freedom of speech and expression has taken its roots from the evolution of democracies all over

the world. The United States is a fine example of how the freedom of speech and expression, was the first amendment that came to the minds of the drafters of the Bill of Rights. Therefore, democracy has often been the litmus test to identify the legitimacy of a statement made violating the first amendment. See Purcell v. Ireland App. No. 15404/89, (1991) 70 DR 262. ii

See MILTON J ‘AREOPAGITICA: A SPEECH FOR THE LIBERTY OF UNLISENCED PRINTING (1644) in Prose

Writings (London: Everyman’s edn, 1958). iii

Abrams v. US 250 US 616, 630 (1919).

Handyside v. UK (1976) 1 EHRR 737, para 49.

See T Scanlon, Freedom Of Expression And Categories Of Expression 40 U. PITTSBURGH L. REv. 519

(1979). vi

ANDREW NICOLE, GALVIN MILLAR & ANDREW SHARLAND, MEDIA LAW & HUMAN RIGHTS 3 (2nd edn.

Oxford University Press, 2009). vii

There is a need to ensure that a democracy does not compromise the personal rights of citizens at

the cost of protecting the freedom of press. Nonetheless, the importance of the press cannot be undermined. Just like the American fourth estate operates as a de facto quasi-official fourth branch of government, its institutions no less important as compared to the Indian media. The citizens have the right to be informed about the affairs of the state; they have the right to know the truth. See DOUGLASS CATER, THE FOURTH BRANCH OF GOVERNMENT 13 (Boston: Houghton Mifflin, 1959). viii

Warren Francke , The Evolving Watchdog: The Media's Role in Government Ethics , 111, 109-121

Annals of the American Academy of Political and Social Science, Vol. 537, Ethics in American Public Service.

See Peter. L. Fletcher & Edward. L. Reuben, Privacy, Publicity and the Portrayal of Real People by the

Media, 88 YALE. L.J. 1157 (1978-1979). x

V. Held, The Media and Political Violence, 197, 187-202 THE JOURNAL OF ETHICS, Vol. 1, No. 2 (1997).

In re Harijai Singh, 1987 Cri LJ 58 at 61 ; See also Indian Express newspapers Bombay v. Union of

India, AIR 1996 SC 515: (1985) 1 SCC 641. xii

Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Pvt. Ltd. Bombay , AIR

1989 SC 190.

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xiii

DR. AWASTHI & KATARIA, LAW RELATING TO PROTECTION OF HUMAN RIGHTS 582-583 (2nd ed., Orient

Publishing Company 2005). xiv

385 U.S. 375; See Sushil Choudhury v. State of Tripura, AIR 1998 Gau 28 at 32; Indian Express

newspapers Bombay v. Union of India, AIR 1996 SC 515: (1985) 1 SCC 641. xv

Supra, note 13 at 586. Id. at 592.

xvi

Warren & Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).

xvii

Sonal Makhija, Privacy and Media Law (Jul. 26, 2011) available at ‘cis-india.org/internet-

xviii

governance/blog/privacy/privacy-media-law’ (last visited Nov. 21, 2013). xix

AIR1963 SC 1295 :1964 SCR (1) 332.

R. Rajagopal v. State of T.N, (1994) 6 SCC 632.

Id.

xxi

Draft Bill on the Right to Privacy, Cabinet Secretariat, Rashtrapati Bhawan, No. 501/2/6/2011-CA.V.

xxii

Id..

xxiii xxiv

The Right to Privacy Bill, 2011, Statement of Reasons and Objectives: ‚A Bill to provide for the

right to privacy to citizens of India and regulate the collection, maintenance, use, and dissemination of their personal information and provide for penal action for violation of such right and for matters connected therewith or incidental thereto.‛ Glenn Greenwald & Shobhan Saxena, India Among top Targets of Spying by NSA , (Sep. 23, 2013)

xxv

available

http://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-

nsa/article5157526.ece (last visited Dec. 22, 2013). xxvi

THE CONSTITUTION OF INDIA, art.21

xxvii

Martinez Montsant Joan v. Union Of India, W.P. No. 61225 of 2009.

xxviii

Sunanda

Pushkar,

Media just turned me into a 'slut' in IPL row , available at

http://articles.timesofindia.indiatimes.com/2010-04-23/india/28149154_1_sunanda-pushkar-shashitharoor-ipl-kochi ( last visited Dec. 6, 2014). Prabal Dixit, Jessica Lal: A case of Indian Realism, available at : http://www.legalindia.in/jessica-lal-a-

xxix

caseof-indian-realism (last visited Mar. 11, 2013); Shree Paradkar, Aarushi Talwar murder: Inside story

India’s

most

controversial

trial,

(Jan

26,

2013)

available

at:

http://www.thestar.com/news/world/2013/01/26/aarushi_talwar_murder_a_look_at_one_of_indias_most_n otorious_cases.html (last visited Mar. 11, 2013). xxx

State of U.P v. Rajesh Talwar and Anr. Sessions Trial No. 477/ 2012.

xxxi

Id.

xxxii

High Court of Karnataka v. State of Karnataka AIR 1998 Kant. 327.

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Rostrum’s Law Review ISSN: 2321 - 3787 Elizabeth Filkin, Ethical Issues arising from the relationship between Police and Media, (Jan, 2012),

xxxiii

available

http://content.met.police.uk/cs/Satellite?blobcol=urldata&blobheadername1=ContentvType&blobheade rname2=ContentDisposition&blobheadervalue1=application%2Fpdf&blobheadervalue2=inline%3B+fil ename%3D%22944%2F933%2FFINAL+REPORT++ALL.pdf%22&blobkey=id&blobtable=MungoBlobs& blobwhere=1283540988465&ssbinary=true (last visited on 26, Feb. 2013).

Id.

xxxiv

Melanie Jo Triebel, The Relationship Between the Media & the Police, available at:

xxxv

http://www.ehow.com/info_8747854_relationship-between-police-media.html (last accessed on 25, Feb. 2013) xxxvi

Larry

Jones,

Police and Media Relations: How to Bridge the Gap, available at:

http://www.fdle.state.fl.us/Content/getdoc/9a5940ba-6100-45e3-86a2-092f72480769/jones-larry-finalpaper (1).aspx (last accessed on 26, Feb. 2013). xxxvii

THE CONSTITUTION OF INDIA, art. 246; Entry 1,List 2, Sch. 7

xxxviii

Peoples Union of Civil Liberties v. Union of India Civil W.P. No. 196/2004

xxxix

Tharron

Mclvor,

Media

and

the

Police:

Legal

Interactions,

available

www.humanrightsinitiative.org/programs/aj/police/papers/media_police_legal_interraction.pdf

at (last

visited Nov. 30, 2013). xl

The Indian Police Act, 1861, § 23.

xli

The Indian Police Act, 1861, § 44.

xlii

Ms. Bharathi Yadav v. State of U.P. Crl. M. C. No. 6230/ 2006; Crl. M. No. 11312/ 2006.

xliii

Bijal Revashanker Joshi v. State of Gujrat (1997) 2 GLR 1147.

xliv

The Indian Evidence Act, 1872 § 123.

xlv

The Indian Evidence Act, 1872 § 124.

xlvi

The Indian Evidence Act, 1872 § 125.

xlvii

The Code of Criminal Procedure, 1973, Ch. 12

xlviii

The Right to Information Act, 2005 § 5.

Universal Declaration of Human Rights, art.5(1)(b), Dec. 10, 1948; Cited in Martinez Montsant Joan

xlix

v. Union Of India, W.P. No. 61225 of 2009. The Australian Privacy Charter Group, Law School, University of New South Wales, Sydney, The

Australian Privacy Charter,(1994). li

Report of the Committee on Privacy and Related Matters, 7 (1990).

lii

ALAN F. WESTIN, PRIVACY AND FREEDOM, 7 (Atheneum, New York, 1967).

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See Belgium Privacy Act, 1992, § 2:‚'Processing' shall mean any operation or set of operations that is

liii

performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment, combination, as well as blocking, erasure or destruction of personal data.‛ liv

Consolidated text of the Belgian law of 8 December 1992 on Privacy Protection in relation to the

Processing of Personal Data as modified by the law of 11 December 1998 implementing Directive 95/46/EC1 and the law of 26 February 2003 (See alsoBelgian State Gazette, 3 February 1999, 3049. lv

Human Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police,(4 Aug,

2009), 1-56432-518-0, available at: http://www.unhcr.org/refworld/docid/4a793f692.html (last visited 13 March 2013). lvi

HELLEN FENWICK, CIVIL LIBERTIES 280 (1995).

lvii

This includes within its purview, both Central and State Acts in relation to Police Reforms.

lviii

The IPCC is one such body that has access to any kind of information that is held by the police in its

premisis. Complainants have the right to file complaints both in their own personal capacity or they can be represented by a third party. Their complaints will be addressed by the Constituting Body of the IPCC, based on inquiries, examinations and investigation of the police official against whom the complaint has been registered. The complainant is also bestowed with the right to take the case on an appeal to a higher judicial authority. This helps encourage a greater level of loyalty on behalf of the police towards the public. Not only can the victim file a case against the police under nonperformance of duties under the various police Acts, but also under the proposed Draft Bill on Privacy. Therefore, introducing a similar system in India will go a great deal in protecting innocent citizens from the human right violations from the police. See Maja Daruwala, G.P Joshi & MandeepTiwana ,

Police Act, 1861: Why we need to replace it?, Police Reforms too Important to Neglect too Urgent to Delay, (Commonwealth Human Rights Initiative, 2005). lix

These authorities are called the Independent Complaints Directorate, which keeps a check on the

activities of the police which is prohibited by the police regulations such as code of conduct or neglect of duties The body, also helps to provide a remedy for an individual whose privacy has been violated by means of unauthorised delivery of information from the media to the police. Thus the police department will remain vigilant at all times as the public can act as a watch dog in order to promote proper police conduct in accordance with the principles of the Constitution. See Supra, note 38; See

also, Independent Police Investigative Directorate, Republic of South Africa, Vision and Mission, available at: http://www.ipid.gov.za/about%20us/vision_mission.asp (last visited on Mar, 7, 2013 )

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Such a recommendation was also made by the United Nations Refugee Agency, wherein a report

required that India set up independent bodies that register complaints against the police officials. It also provides, that in order to reduce impunity, the central and state government should bolster the capacity of the national and state human rights commissions to undertake independent investigations, including the number of investigative staff. SeeHuman Rights Watch, Broken System: Dysfunction,

Abuse, and Impunity in the Indian Police, 14 (4 Aug, 2009), 1-56432-518-0, available at: http://www.unhcr.org/refworld/docid/4a793f692.html (last visited 13 March 2013). lxi

For instance the Police Act in British Columbia provides for the appointment of a Police Complaint

Commissioner to oversee the handling of complaints against the police. S/he is appointed on the unanimous recommendation of a special committee of the Legislative Assembly. The police complaint commissioner cannot be a Member of the Legislative Assembly but is considered to be an officer of the Legislature, who holds office for a term of six years. S/he can appoint staff to assist in performing the duties of the office and must report annually to the Speaker of the Legislative Assembly on the work of her/his office. ( The Police Act, 1996, Part 9, Â§ 47 also available at: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96367_01). lxii

W. P. (civil) No. 310/ 1996.

lxiii

Prashant Jha, India looks for lessons from Leveson report on media , ( Jul. 14, 2013) The Hindu,

National.

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PROTECTION OF MEDICINAL PLANTS ANIRUDDHA KUMAR & AASTHA TIWARI INTRODUCTION With growing interest in medicinal plants, the need of the hour is a long term strategy to conserve and sustainably harvest these plant products. The use of medicinal plants in India and many other developing countries can be considered a living tradition. The World Health Organisation (WHO) estimates that the primary health care needs of approximately 80 per cent of the developing world’s population are met by traditional medicine. i Traditional Knowledge, per se, does not fall under any particular category but it ranges from the Ayurvedic, Unani, Siddha and Tibetan in India, the Kampo in Japan, the Jamu in Indonesia, and many more. The traditional systems of medicine largely depend on natural resources for their medicines, out of which plants form the bulk of the medicine. ii India, somehow, seems to be stranded between the international conventions and her nation’s need. A major concern for developing countries is the TRIPS Agreement which obligates all members to provide patent in all the field of technology and also provide IPRs (either by patents or a sui generis system) for plant varities. This essay shall put some light on the importance of protection of medicinal plants in India.

MEDICINAL PLANTS IN INDIA The All India ethnobiology Survey carried out by the Ministry of Environment and Forests estimates that over 7,500 species of plants are estimated to be used by 4,635 ethnic communities for human and veterinary health care across the country. iii These plants however face threat of habitat destruction. Under the Forest (Conservation) Act ,1980 and the Wildlife (Protection) Act, 1972, medicinal plants do get some amount of protection. But a lot of medicinal plants grow away from the protected areas domain and since there is no consolidated strategy for medicinal plants, a lot of Page | 83

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them just disappear without any of its knowledge. Within protected areas also, the lack of a focused conservation strategy could cause a depletion of this valuable resource. Along with this, is an increased threat to the availability of medical plants. Over 95 per cent of the medicinal plants used by the Indian pharmaceutical industry are today collected from the wild. iv Over 70 per cent of the plant collections involve the use of roots, bark, wood, stem and in some areas the whole plant, leading to destructive harvesting. If not carefully monitored, this practice could lead to the depletion of genetic stocks and ultimately to the diversity of medicinal plants. It will also lead to the loss of biodiversity, deprivation of traditional knowledge and threatening of the survival of local communities.

TRADITIONAL KNOWLEDGE V. PATENT LAWS One of the major problems that India is facing is exploitation of her traditional knowledge. Gene technology has given unlimited powers to developed countries to exploit the genetic resources of poor nations leading to a situation of ‘biopiracy’and ‘gene robbing’. Biopiracy can be defined as the stealing of biomedical knowledge from traditional and indigenous communities or individuals. The term can also be used to suggest a breach of a contractual agreement on the access and use of traditional knowledge to the detriment of the provider, and also applies to bioprospecting without the consent of the local communities. The issue of protection of traditional knowledge, bio-piracy and fair equitable sharing of benefits arising out of utilization of traditional knowelege is very important for India. The patent intervention is being quite visible, lately. A number of herbs, viz. neem, haldi and ashwagandha and plant drugs of India have been patented by outsiders on the basis of secondary researches. Perhaps rightly so, since Basmati, Neem and Haldi have never been too far from an Indian's life, and the idea that someone else may acquire the right to own, trade and market it, is more than a bit jolting. The objective of the patents system is to develop new knowledge for prosperity of mankind which is

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getting diluted day by day. It is instead helping monopolisation of new knowledge for exploiting mankind. Almost 80 per cent of the 4,896 references to individual plant based medicinal patents in the United States Patents Office that year related to just seven medicinal plants of Indian origin. Three years later, there were almost 15,000 patents on such medicines spread over the United States, UK, and other registers of patent offices. In 2005 this number had grown to 35,000, which clearly demonstrates the interest of developed world in the knowledge of the developing countries. v There were cases in the past which were the best epitome of exploitation, ignorance and negligence buoying up on the Patent laws of the developing countries like India.

CASES OF BIO-PIRACY In Turmeric case, the US patent and Trademark office granted a patent on the ‘use of wound healing’ which was successfully challenged by India on the grounds of ‘prior art’ and that this use of turmeric was well known and nothing new had been invented. The document relating to this traditional knowledge of India were unknown to the US patent and Trademark Office. When they came to know about this, patent was revoked. Neem case- Neem extracts can be used against hundreds of pests and fungal diseases that attack food crops; the oil extracted from its seeds can be used to cure cold and flu; and mixed in soap, it provides relief from malaria, skin diseases and even meningitis. In 1994, European Patent Office (EPO) granted a patent vi to the US Corporation W.R. Grace Company and US Department of Agriculture for a method for controlling fungi on plants by the aid of hydrophobic extracted Neem oil . In 1995, a group of international NGOs and representatives of Indian farmers filed legal opposition against the patent. They submitted evidence that the fungicidal effect of extracts of Neem seeds had been known and used for centuries in Indian agriculture to protect crops, and therefore, were unpatentable. In 1999, the EPO determined that Page | 85

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according to the evidence all features of the present claim were disclosed to the public prior to the patent application and the patent was not considered to involve an inventive step. The patent granted on was Neem was revoked by the EPO in May 2000. Basmati Rice Case: Rice Tec. Inc. had applied for registration of a mark ‚Texmati‛ before the UK Trade Mark Registry. Agricultural and Processed Food Exports Development Authority (APEDA) successfully opposed it. One of the documents relied upon by Rice Tec as evidence in support of the registration of the said mark was the US Patent 5,663,484 granted by US Patent Office to Rice Tec on September 2, 1997. This US utility patent was unique in a way to claim a rice plant having characteristics similar to the traditional Indian Basmati Rice. It was challenged and later revoked by USPTO. (Subbiah). On one hand, Patent on traditional knowledge is not easily accessible whereas on the other hand, if modified so as to be distinguishable, can be patented. The need of the hour is to grant patents in a way that serves public interest. Our traditional knowledge is the result of hard work of our ancestors. It should be used for the benefit of humanity. But in this competitive world of patents, it needs to be protected. The grant of patents on non-patentable knowledge which is either a part of the traditional knowledge of the developing world or a minor variation thereof has been causing great concern to the developing world‛ India was the first to raise the fundamental issue at the World Intellectual Property Rights Organization (WIPO) as to why the traditional knowledge-based system should not be treated at par with the industry-based system. The problem is deep and systemic. And it calls for a systemic change, not a case by case challenge. If a patent system which is supposed to reward inventiveness and creativity systematically rewards piracy, if a patent system fails to honestly apply criteria of novelty and non-obviousness in the granting of patents related to indigenous knowledge then the system is flawed, and it needs to be changed. Page | 86

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ESSENTIALS OF PATENT Patent is ground in favour of the inventor which confers the patent holder the right to use his invention to the exclusive of all others. vii Patent grants the inventor a privilege of making, manufacturing, selling or using the invention and also a right to authorise other to do so. Patent is only granted to those inventions which are new and useful.This is to say that it must have novelty and utility.viiiProducing advantageous results will be a sufficient element of novelty to support the patent. It is essential for the validity of the patent that it must be inventorâ&#x20AC;&#x2122;s own discovery.ix This is the basic principle which has to be followed while granting the patent to the inventor. The claim to patent can be challenged on different grounds which are given the Indian Patent Act, 1970. For the purpose of the act there are some the inventions which are not patentable. The controller will not grant patent if invention is, an invention which is frivolous, an invention intended to be used contrary to law or morality or injurious to public health, a mere discovery of scientific principle, a substance obtained from mere admixture, etc. All these invention are not liable to be granted as patent. x Apart from the above list of non-patentable invention the patent can be challenged on other grounds too. These grounds are also given in the Indian Patent Act, 1970. These grounds for opposition are xi : 1) That the person claiming the patent has wrongly obtained the invention or the right to make the application for patent; 2) That the invention for which patent claimed is already published; 3) That there is already a prior claim in the complete specification earlier filed; 4) That there was prior knowledge of the claim made in the complete specification from the date anterior to the date of its priority; 5) That the invention suffers from obviousness and lacks inventive step; etc. All these grounds are listed in the section 25 of the Indian Patent Act, 1970.

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These are the important essential of the patent which has to be looked into before the patent is granted to inventor. The principle of novelty and utility is the most important essential on which the patent the claim for the patent is tested. Further opposition to the claim is based on this principle only. As we can see that, the prior knowledge is a ground for challenge and claim to patent can be rejected if it is proved that the invention is made based on prior knowledge. The traditional knowledge is part of this prior knowledge and any claim to the invention of new medicine should be challenged on the ground that it from the part of traditional and hence is not novel. The use of medicinal plants in India is also a part of our traditional knowledge.

INTERNATIONAL LAWS ON IP AND ITS EFFECT ON PATENT LAW REGIME IN INDIA Trade Related Aspects of Intellectual Property Rights (TRIPS Agreement) is at the centre of international regime concerning the protection of Intellectual Property Rights (IPRs). For the developing countries this is of great significance as its ratification implies important changes in the IPR laws. The entry in to the force of the TRIPS agreement for developing counters makes the issue. The TRIPS agreement has introduce the protection of plant varieties, product patenting and Exclusive Market Rights (EMRs). This has compelled the developing countries like India to make changes in there IPR laws. The Patent Act of 1970, has exclude the patenting of life forms and specifically precludes the patenting of methods of agriculture and horticulture. xii Further, while allowing for the process patent on the substance intended for use as food, medicine or drugs, the Act rejects the possibility to grant patents in respect of substance themselves. The TRIPS has the effect of extending the application of IP standards already in use un most OECD countries to all General Agreement on Tariffs and Trade(GATT) Page | 88

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signatories. In the specific case of patents, the TRIPS agreement have wide-ranging implications. It provides for instance that patent must be available for invention, whether processes or products. Plant varieties are given protection by patent or by an effective alternative system. Article 27.3.b of the TRIPS agreement provides that, the member states can choose to provide plant variety protection through sui generis system.xiiiThe other important characteristic of the agreement is that, the EMR for five years or until a product patent is granted or rejected should be given to the applicant. India was not up for the TRIPS agreement from the beginning; it has opposed the agreement for very long time. Strong international pressure was being put on India to accept the TRIPS agreement and to modify the patent law. In the event India signed the GATT 1994 Agreement and become member of WTO. The ratification of TRIPS was made compulsory to India and hence the changes that came to the Indian patent law werexiv: 1. The system for filling and handling product patent application for pharmaceutical and agriculture chemical product and grating the EMR. 2. The elimination of any restriction on granting of product patents. 3. The elimination of restriction on patentable subject matter such as method of agriculture and horticulture. 4. The lengthening of patent duration to 20 years, from the current 14 years and 7 years for food and pharmaceuticals. 5. Restriction and modification concerning compulsory licensing, license of right and the rights of revocation. 6. The adoption of legal regime for the protection of plant varieties. These changes were made in the Indian Patent Act and therefore have resulted in many controversies as discussed above.

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The result of these changes are that, the protection to the traditional knowledge is limited. The traditional knowledge of medicinal plants are now not protected to the extend they were before. The provision for product patent has made it difficult for indigenous people to protect their traditional knowledge. It is in the nature of chemical products that their composition can be easily known and they can then be made through alternative processes. Any company that makes a drug developed and patented by somebody else but uses another process avoids the bulk of the development costs and thus able to produce and sell it at a low cost. This is how the Indian pharmaceutical Industries were working. Now that the product patent is introduced the Indian industries has to bear high development cost for the production of drugs. One of the major provisions introduced was regarding grant of compulsory licence, which means that Indian manufacturers will be able to manufacture and export patented medicines to countries, which have insufficient or no manufacturing capacity. The introduction of a provision to enable grant of compulsory licence for export of medicines to the countries that have insufficient or no manufacturing capacity to meet emergent public health situations, is in accordance with the Doha Declarations on Trade Related Intellectual Property rights (TRIPs) and public health. UPOV is one other international law which had its effect on the patent law in India.. The mission of UPOV is to provide and promote an effective system of plant variety protection, with the aim of encouraging the development of new varieties of plants, for the benefit of society. Most countries and intergovernmental organizations which have introduced a plant variety protection (PVP) system have chosen to base their system on the UPOV Convention in order to provide an effective, internationally recognized system. TRIPS has taken this into account for introducing the provision for protection of plant varieties. TRIPS agreement has not affected the Patent Law alone. It also have change the Biodiversity law in India. The Convention of Biodiversity on one hand provide for

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appropriate access to utilization of resources. The signatories are required to ‚respect, preserve and maintain knowledge‛ of indigenous communities. Article 1 of the convention provides for this protection of traditional knowledge along with article 8. This provide for protection of traditional knowledge in one hand and TRIPS provides for exclusion of plant and animal material from patenting, yet there is spurt in the arena of IPR, which can be seen in the our above discussion on different controversies. Therefore, if we can take a final look in to the controversy and effect of TRIPS majorly we can see that, the patent protection in TRIPS has not provided any protection to the traditional knowledge of medicinal plants in India. We can rather say that, Intellectual property is important, but the appropriate intellectual property regime for a developing country is different from that for an advanced industrial country. The TRIPs scheme failed to recognize this. In fact, intellectual property should never have been included in a trade agreement in the first place, at least partly because its regulation is demonstrably beyond the competency of trade negotiators. Hopefully, in WIPO’s reconsideration of intellectual property regimes, the voices of the developing world will be heard more clearly than it was in the WTO negotiations.

SUGGESTIONS Now, the time has come to compile and document available knowledge on our valuable plant resources and to prove their utility scientifically through detailed phytochemical, biological and pharmacological investigations at selected centres in different regions of the country. Following are the few suggestions that can help in improving the present scenario regarding the patent of medicinal plants: 1. Proper documentation of Traditional Knowledge. 2. Registration and innovation of Patent System.

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3. Removal of Article 27.3 from TRIPS, like, retracting the demand for patents on life form. 4. Let it be the choice of countries to draft their own Sui generis legislation(s) for plant varieties that are in compliance with UPOV. 5. Apply Article 29 of TRIPS which requires disclosure in the case of patent applications, to genetic resources and traditional knowledge used in invention for which IPRs are claimed. 6. Increase the scope of Art. 23 of TRIPS to strengthen protection of geographical indications. 7. Heavy penalty for those parties who exploit traditional knowledge in disguise of modification. 8. There is no control on the exploitation of medicinal plants from outside protected areas. Most species banned for export are thus because of their endangered status and not their medicinal value. A national level policy is required if any consolidated effort towards the conservation of medicinal plants is foreseen. It is in India's interest to implement our national biodiversity legislation before granting EMRs or changing the Indian Patent Act. The determination and will to defend our national interest and our public interest and protect our innovation should be stronger than the determination and will to defend US interest and protect US biopiracy. This is a real test of our freedom and sovereignty. We need to do a rapid stock-taking of the scale and extent of our Bio-diversity-based economy which accounts for two-thirds of our productive economy is invisible because it is the economy of people our centralised planning has rendered invisible. We need to show how much the potential loss to India is in the form of both global markets and domestic markets due to biopiracy by countries like the US. We need to go through this exercise to protect our sovereignty and make our rightful claims with trading partners. The exercise of the potential loss due to

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biopiracy also needs to be done to avoid unnecessary and illegitimate trade action by the US due to the TRIPs dispute ruling

CONCLUSION India has successfully built edifice of its relationship with Patent laws through the prism of TRIPs and other international conventions. The plight however is the growing influence of the developed nations over the developing ones. In such case, protection of medicinal plants has become extremely important. TRIPS stance on its standards required for the protection of Intellectual Property Rights and contentious Article 27.3, is not so clear. Notwithstanding this, for the protection of Intellectual Property Rights India realizes the need of protecting her traditional knowledge from patent bio-piracy. There have been steps taken to ameliorate the present stance of India on protection of medicinal plants, which are still in process. India, inter alia, has been successful in preparing a proper exercise which is easy navigable. It is a computerized database regarding documentation of Traditional Knowledge created by the Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy-(AYUSH), erstwhile Department of Indian System of Medicine and Homoeopathy (ISM&H) constituting an inter-disciplinary Task Force, for creating an approach paper on establishing a Traditional Knowledge Digital Library (TKDL). This is one major assurance to secure medicinal plants from known patents. Furthermore, provisions in patents ( second amendment) Bill that makes disclosures in the patent application mandatory, for the source of biological resource has got the entire

picture

subject

transparency.

Work

going

various

intergovernmental bodies like CBD,WIPO,FAO, WTO and UNCTAD in this regard. While all these improvements keep on working at their own pace, it is important for India to have a stronger legislative stance on this issue. Apart from these developments, there are many medicinal plants that stand on the verge of extinction. First the patent concern was on wound healing property of Haldi and now hypo glyceimic property of karela, brinjal etc. They are widely used in India and their bio Page | 93

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piracy agitates the entire country. There is an urgent need to have few amendments in international conventions that govern patent laws on medicinal plants and implement them as soon as possible. Protecting these resources and integrating them.

REFERENCES N.K.Dubey and Pramila Tripathi ,Global Promotion of Herbal Medicine: India’s Opposition Carlos M. Correa, Protection and Promotion of Traditional Medicine in Developing Countries iii Foundation for the Revitalisation of Local Health Traditions or FRLHT, 1997 iv FRLHT, 1997 v 2000, CSIR(Council of Scientific and Industrial Research) vi (EPO patent No.436257) vii Dr. V. Manickavasagam, Intellectual Property Rights and the Impact of TRIPS agreement with Reference to Indian Patent Law, Report Submitted to Planning Commission( SER Division) New Delhi; Philippe Curllet, Revision of the TRIPS Agreement Concerning protection of Plant Vareities: Lessons from India concerning the development of a SUI generis system, 2 Journal of World intellectual Property 617 ( 1999). viii ibid ix ibid x Maitreyi Das, Impact of TRIPS Agreement on Competition in Pharmaceutical sector in India, Report submitted to Competition Commission of India New Delhi (2013) xi Indian Patent Act § 25 (1970). xii Supra at i xiii id xiv id i

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RHETORIC CONCEPT OF NON- LETHAL WEAPONS – UNTOUCHED BY INTERNATIONAL LAW HARSHAD KAPOOR ABSTRACT Establishing national mechanisms to review the legality of new weapons is especially relevant and urgent in view of emerging new weapons technologies. This article asserts the need for a international mechanism to review newly invented weapons that are wrongly termed as non- lethal. Henry Dunant in his famous book ‘A Memory of Solferino’ wrote ‚Ensuring the legality of new weapons is crucial if the development, proliferation and use of cruel and indiscriminate weapons are to be prevented and if humanity is to be protected from new and frightful weapons of destruction.’’ Non-lethal weapons are characterized by some scholars as ‚weapons of mass protection‛ that constitute a ‚new arsenal for a new era of warfare.‛ The most frequently mentioned reason behind the development of the "non-lethal" weapons concept is the changing nature of military operations in the post-Cold War world in what are called "military operations other than war." In addition, ethnic hatred and ineffective or non-existent governments have fueled the ferocious fires of civil war in many parts of the developing world, deepening the crisis for ethical and legal restraints on war. NLWs are not required to have a zero probability of producing fatalities or permanent injuries. Moreover, the term "non-lethal" suggests that the weapons in question are anti-personnel weapons only. The area of "non-lethal" weapons covers, however, more than anti-personnel weapons. It includes weapons designed for use against "anti-materiel" weapons. Medically, the intended and

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unintended health consequences of "non-lethal" weapons are not yet well understood. NLWs cause debilitating or permanent effects such as blindness or paralysis, longterm lethal consequences, or other unnecessary suffering. So, the labels "lethal" and "nonlethal" do not accurately reflect how weapons ought to be examined from an ethical perspective. For a state that is party to Additional Protocol I of 1977, determining the legality of new weapons is a treaty obligation pursuant to Article 36 of the Protocol. Indeed, it is in each state’s interest to assess the lawfulness of its new weapons in order to ensure that it is able to comply with its international legal obligations during armed conflicts and other situations of violence. The ICRC is aware of only a handful of states that have such procedures in place, one of which is not party to Additional Protocol I. In some nations there are no consistent and coherent standards applicable to all policing forces across the nations. The legal framework for the testing and approval for use of new forms of less than lethal weapons by police agencies is unclear. The difference in the interpretation of conventions also imposes ambiguities in the application of these weapons. The principles of distinction and proportionality, the principle of unnecessary suffering, rules governing hors de combat, and the so-called Martens clause are constantly violated. International humanitarian concerns about how NLWs might encourage military forces to violate the IHL principle of ‘hors de combat’ are also discussed in detail.

INTRODUCTION Ethics and international law have since the late nineteenth century been losing a running battle with technological developments that have vastly increased the killing power of military forces. In addition, ethnic hatred and ineffective or nonexistent governments have fueled the ferocious fires of civil war in many parts of the developing world, deepening the crisis for ethical and legal restraints on war. Page | 96

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Military forces from various nations ordered into war-torn societies to keep the peace or distribute humanitarian aid often find themselves confronted with non-military functions, such as crowd control, that seem difficult to fulfill with traditional military weapons. Any use of a lethal or non-lethal weapon in a combat situation is subject to the basic principles and provisions of international law. These include the principles of distinction and proportionality, the principle of unnecessary suffering, rules governing hors de combat, and the so-called Martens clause. Embedded in these principles and provisions is the idea of protection for civilians and protection for combatants. Parties to an armed conflict are limited in their choice of weapons, means and methods of warfare by the rules of international humanitarian law (IHL) governing the conduct of hostilities. Relevant rules include the prohibition on using means and methods of warfare of a nature to cause superfluous injury or unnecessary suffering and the prohibition on using means of warfare that are incapable of distinguishing between civilians or civilian objects and military targets, i which are the ‘‘cardinal rules’’ of IHL applying to weapons. ii In addition, particular treaties and customary rules impose specific prohibitions or limitations on the use of certain weapons, for example anti-personnel mines and blinding laser weapons. For a state that is party to Additional Protocol I of 1977, determining the legality of new weapons is a treaty obligation pursuant to Article 36 of the Protocol, which requires each state to determine whether the employment of ‘‘a weapon, means or method of warfare’’ that it studies, develops, acquires or adopts would, ‘‘in some or all circumstances’’, be prohibited by international law applicable to the state. But it also makes good policy sense for all states, regardless of whether or not they are party to the Protocol, to carry out legal reviews of new weapons. Indeed, it is in each state’s interest to assess the lawfulness of its new weapons in order to ensure that it is able to

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comply with its international legal obligations during armed conflicts and situations of violence.

WEAPON REVIEW MECHANISM The 27th International Conference of the Red Cross and Red Crescent in 1999 and the 28th Conference in 2003 called on states to establish mechanisms and procedures to determine the conformity of weapons with international law. In particular, the 28th Conference declared that ‘‘in light of the rapid development of weapons technology and in order to protect civilians from the indiscriminate effects of weapons and combatants from unnecessary suffering and prohibited weapons, all new weapons, means and methods of warfare should be subject to rigorous and multidisciplinary review.’’iii The obligation to review the legality of new weapons implies at least two things. First, a state should have in place some form of permanent procedure to that effect, in other words a standing mechanism that can be automatically activated at any time that a state is developing or acquiring a new weapon. Second, for the authority responsible for developing or acquiring new weapons such a procedure should be made mandatory, by law or by administrative directive. A proposed means of warfare cannot be examined in isolation from the way in which it is to be used – that is, without also taking into account the method of warfare associated with it. This raises three questions. The first is whether the reviewing authority should consider only the proposed or intended use of the weapon, or whether it should also consider other foreseeable uses and effects – the weapon’s effects resulting from a combination of its design and the manner in which it is used. Article 36 of Additional Protocol I appears to support the broader approach, since it requires a state to determine whether the use of a new weapon would be prohibited ‘‘in some or all circumstances’’.

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RECENT INSTANCES a. An association of lawyers in Indian administered Kashmir will ‘facilitate’ the process of filing review petition in a court against its judgement which had legalized the use of pepper gas and pellet bombs against protestors in the disputed state.iv b. Amnesty International continues to be concerned by the use of less-than-lethal weapons, particularly Conducted Energy Devices (CEDs) such as TASERS. While some police forces have adopted stricter standards that limit the use of such devices to situations where there is a clear and serious imminent threat to life, most do not. Amnesty International has frequently expressed concern that the use of these weapons may, in some circumstances, be tantamount to torture or ill-treatment.This Committee has also expressed concern that the use of such weapons may constitute a form of torture. v There are no consistent and coherent standards applicable to all policing forces across the country, as some are subject to federal government jurisdiction and others to provincial and territorial governments. Guidelines developed by the federal government in October 2010 are not binding and do not adopt a threshold of harm standard which would justify the use of a TASER. Amnesty International has suggested that the Federal Guidelines should be amended to require that CED’s will only be used in situations involving an ‚imminent threat of death or serious (potentially life threatening) injury which cannot be contained by less extreme options.‛ The legal framework for the testing and approval for use of new forms of less than lethal by police agencies in Canada, such as sonic devices, is unclear. Some of these weapons pose a potential risk of resulting in torture or ill-treatment when used. Just as their lethal counterparts sometimes fail to kill, non-lethal weapons can sometimes be deadly. The description, therefore, applies to the intent rather than the effect. vi

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c. The ICRC reported that the destruction and disruption of electricity caused Iraqi civilians great hardships in forms of disease and other adverse health consequences.vii Calling a weapon "non-lethal" does not remove its potential consequences from scrutiny under IHL. d. The Chechen assault on the Nord-Ost Theatre in Moscow, and the crisis involving approximately 830 hostages, ended when Russian security forces pumped an incapacitating chemical, believed to be a derivative of the opiate fentanyl, into the theatre as a prelude to storming the building. Russian forces killed all the terrorists and rescued hundreds of hostages. The fentanyl, however, killed approximately 130 hostages — a fatality rate of 16%, more than twice the fatality rate of ‚lethal‛ chemical weapons used on World War I battlefields. viii The use of an incapacitating chemical to end the Moscow hostage crisis hit the debate about NLWs and international law like a thunderbolt.

POTENTIAL DRAWBACKS The advantages outlined above potentially offer significant enhancements to our ability to bring about desired political outcomes via employment of

military means. However,

these types of weapons does present numerous challenges and

concerns as described below. a. Non-lethal weapons may produce unrealistic expectations The first concern is that the weapons might present unrealistic expectations about the prospects for bloodless war. The problem arises from the term ‚non-lethal‛ itself, leading some in the defense community to advocate adoption of substitute terms such as ‚less-lethal‛ or ‚sub-lethal effects weapons.‛ Non-lethal weapons shall not be required to have a zero probability of producing fatalities or permanent injuries. However, while complete avoidance of these effects

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is not guaranteed or expected, when properly employed, non-lethal weapons should significantly reduce them as compared with physically destroying the same target. ix b. Non-lethal weapons offer the potential for the enemy to fight again. A second concern regarding non-lethal weapons is the potential for opposing forces to return to the battlefield to fight again. Mercy on the battlefield sometimes backfires. For example, some of the prisoners paroled by General Grant at Vicksburg during the U.S. Civil War fought him again in later battles. x Clausewitz warned that, in general, the enemy’s ‚fighting forces must be destroyed: that is, they must be put in such a condition that they can no longer carry on the fight.‛xi This is an issue that must be considered if increasing reliance on non-lethal weapons becomes a reality. c. The availability of non-lethal technology may lure adventurism. A possible criticism of reliance on non-lethal weapons is that they may make us more prone to commit to military action that may have negative economic or diplomatic consequences or may escalate to become an unintended major conflict. The argument goes that since bloodshed and destruction can be greatly reduced with these weapons, we may be tempted to intervene at an earlier point. Moreover, lack of training can increase the level of lethality to even causing death. d. More than Anti Personnel. The area of "non-lethal" weapons covers, however, more than anti-personnel weapons. It includes weapons designed for use against vehicles, equipment, materiel, and computer systems (collectively "anti-materiel" weapons)." Describing these antimateriel weapons as "non-lethal" does not accurately reflect their purpose or nature. In addition, use of some of these anti-materiel "non-lethal" weapons can be lethal as vehicle, equipment, or materiel failure places the human operators in mortal danger. e. Combination of lethal and non lethal weapons.

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As noted before, the term "nonlethal" is not an accurate description of these weapons because they can be lethal and they include anti-materiel weapons. Further, military commanders looking at the battlefields of the future may want to combine "nonlethal" and "lethal" weapons to achieve more effective destruction of the enemy. The existence of true "non-lethal" weapons would not alter the way military forces approach their objectives. It is unlikely that military commanders would equip their forces only with "non-lethal" weapons. Use of truly "non-lethal" weapons may actually increase the effectiveness and lethality of traditional weapons during armed conflict.

WEAPONS AND INTERNATIONAL TREATIES The conventional, biological, and chemical arms control regimes severely limit the potential use of "non-lethal" weapons. This limitation further reinforces the problems noted with the concept of "non-lethal" weapons earlier in the Article. Calling weapons "non-lethal" does not render them susceptible to a lower standard of international legal scrutiny in connection with arms control regimes. However, some important potential "non-lethal" weapons technologies, such as acoustic and electromagnetic weapons, are not affected by the existing arms control disciplines because they do not fall into any of the current treaties on conventional, biological, and chemical weapons. While relevant principles can be extracted from the conventional weapons regime that can be applied to acoustic and electromagnetic weapons, such application is not required under any existing treaty. At present, international legal analysis of the use of these weapons will primarily fall under principles of customary international law, such as the duty not to cause superfluous injury or unnecessary suffering. xii Developments in weapons technology, especially aircraft, made civilian populations increasingly vulnerable to military attack. Civilians also suffered terribly when attacked by armies and governments that had no intention of honoring the laws of war. But civilians also face threats from forces committed to IHL because civilian Page | 102

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fatalities are caused by smart weapons. In addition, military forces often attack or destroy facilities, such as power plants, that are important to the health and wellbeing of civilian populations. ' xiii In some situations, "non-lethal" weapons pose familiar problems. During the Persian Gulf War, allied forces used "non-lethal" anti-materiel weapons to disrupt the Iraqi electricity infrastructure. xiv The ICRC reported that the destruction and disruption of electricity caused Iraqi civilians great hardships in forms of disease and other adverse health consequences. xv Calling a weapon "non-lethal" does not remove its potential consequences from scrutiny under IHL. Equally important is the possibility that the development of "nonlethal" weapons will encourage military forces to attack civilians and civilian targets more rather than less. Military forces might perceive that attacking civilians and civilian targets with "non-lethal" weapons is acceptable because the intent is to incapacitate or demoralize rather than kill. In some contexts, incapacitating or demoralizing civilians might make the use of "lethal" weapons against opposing military forces easier. Behind the IHL prohibition is the principle that military forces must discriminate between military and civilian targets.' xvi Important to the IHL analysis will be whether "non-lethal" weapons can only be, or are being, used indiscriminately. A "non-lethal" weapon that cannot be used in a discriminate way would cause IHL concerns. Thus, if an acoustic weapon intended to incapacitate military forces cannot be used without also incapacitating civilians, such a "non-lethal" weapon cannot satisfy IHL. But one can easily see that people wanting to use the "non-lethal" weapon would argue that its indiscriminate use does not violate IHL because the intent is not to kill and the civilians are only temporarily incapacitated. In other words, the indiscriminate use of a "non-lethal" weapon causes acceptable collateral damage to civilians.

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IHL prohibits military forces from attacking combatants who are incapacitated or disarmed and no longer present a military threat (hors de combat).'xviiThis aspect of IHL is clearly relevant to the use of "non-lethal" weapons on the battlefield,'2" and "non-lethal" weapons raise a number of questions in this regard. First, it is not clear how a soldier will be able to determine in the heat of the battle whether an enemy combatant is hors de combat as a result of the use of a "non-lethal" weapon. How much incapacitation is necessary to render a combatant hors de

combat? Just as a soldier wounded by a "lethal" weapon may still pose a military threat to his enemy, an incapacitated soldier may also constitute a threat. Perhaps this observation suggests that the identification of a combatant hors de combat is difficult regardless whether "lethal" or "non-lethal" weapons are used, and that "nonlethal" weapons do not complicate this already difficult task. Much would depend, of course, on the particular physical effects of a "non-lethal" weapon, so it is difficult to speculate much. But the easier it is to recognize incapacitation the stronger will be the physical effect of the "non-lethal" weapon, perhaps raising other questions under. IHL protections for combatants hors de combat have not been widely respected in twentieth century wars. Military forces in all likelihood will see incapacitation through "non-lethal" weapons as a means to maximize the impact of "lethal" force. The tactic might be to hit enemy troops first with "non-lethals" and to follow up this attack with "lethal" force. This combination tactic might maximize battle impact on the enemy while reducing casualties for the attacking side.

PRINCIPLE OF SUPERFLUOUS INJURY AND UNNECESSARY SUFFERING This principle has been behind a number of prohibitions of specific weapons systems, such as exploding bullets, blinding laser weapons, and anti-personnel land mines. At first glance, it would seem that "non-lethal" weapons cause no concerns for this IHL principle because the intended physical effects are assumed to be temporary. It Page | 104

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remains important for the integrity of IHL to apply the superfluous injury or unnecessary suffering principle to "non-lethal" weapons because the assumption of temporary incapacitation may not be warranted. One concern for this principle of IHL is that the health effects of many potential "non-lethal" weapons are, as mentioned earlier, not known. The superfluous injury/unnecessary suffering principle should guide development of "non-lethal" weapons to ensure that the physical effects of the weapons are not severe or permanent. The ICRC advocates using this objective approach to analyze all newweapons, including "non-lethal" weapons. The categorization of weapons as lethal and non lethal is not correct as it leaves some scope for wrongful use of weapons to an extent by which fatality can be caused and so the categorization of weapons shall be done as causing superfluous injury, potentially causing superfluous injury and not causing superfluous injury.

CONCLUSION The feel-good term "non-lethal" masks the extent to which these weapons create significant concerns for arms control, international law on the use of force, international humanitarian law, and other areas of international law. The need to review and scrutinize "non-lethal" weapons under international law is manifest, and it can never be taken for granted that the development or uses of ‚non-lethal‛ weapons are legitimate under international law. Establishing national mechanisms to review the legality of new weapons is especially relevant and urgent in view of emerging new weapons technologies such as directed energy, incapacitants, behavior change agents, acoustics and nanotechnology, to name but a few. xviii

Weapons review mechanisms would also be relevant in

reassessing existing weapons stocked in a state’s arsenal in the light of new or emerging norms of international law, such as when a state becomes party to a treaty prohibiting or limiting the use of a certain weapon. Page | 105

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Moreover these national mechanisms shall be established under the canopy of an international body to which reports on approved weapons would be sent by the national mechanisms for further review. "Non-lethal" weapons emerge into a situation already marked by great tension between international law and the realities of international politics. Nowhere is this tension more serious than in times of armed conflict. This is why there should and will be tension between international law and the development and use of "nonlethal" weapons. Without this tension, benign motivations behind "non-lethal" weapons development will quickly be drowned or corrupted into malevolent designs that adversely affect the lives and hopes of peoples.

REFERENCES i

See, e.g., J.-M. Henckaerts and L. Doswald-Beck (eds.), Customary International Humanitarian Law,

ICRC/Cambridge University Press, Cambridge, 2005, Rules 70 and 71. ii

In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the International

Court of Justice referred to these basic IHL rules as ‘‘cardinal principles’’: 8 July 1996, [1996] ICJ Rep., pg. 257, 178. iii

See Final Goal 2.5 of the Agenda for Humanitarian Action adopted by the 28th International

Conference of the Red Cross and Red Crescent (2003). iv

See

http://www.authintmail.com/article/kashmir/bar-association-file-review-petition-against-non-

lethal-weapons-use-judgment v

CANADA - Briefing the UN Committee Against Torture, Amnesty International, 48 th Session, 2012,

pg. 30 vi

NON-LETHAL WEAPONS: SETTING OUR PHASERS ON STUN?, Potential Strategic Blessings and

Curses of Non-Lethal Weapons on the Battlefield by Erik L. Nutley, Lieutenant Colonel, USAF, August 2003, Occasional Paper No. 34, Center for Strategy and Technology Air War College Air University Maxwell Air Force Base, Alabama, pg.2 vii

See ICRC, Water in Iraq (ICRC Special Brochure, July 1996).

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viii

Alexander Kelle, ‚Science, technology and the CBW control regimes,‛ Disarmament Forum, 2005, p.

8, p. 10. For a report on health problems suff ered by the hostage survivors two years later, see Anna Rudnitskaya, ‚Nord-Ost tragedy goes on,‛ Th e Moscow News, Issue No. 41, 2004, at <http://english.mn.ru/ english/issue.php?2004-41-2> ix

DOD Policy Directive (DODPD) 3000.3, Policy for Non-lethal Weapons, 9 July 1996, 3.1.

C. T. Clyne, ‚Andersonville and Other Civil War Prisons, North and South,‛ available from

http://users.aol.com/cinticwrt/anders.html xi

Carl Von Clausewitz, On War, trans. Michael Howard and Peter Paret (Princeton N. J.: Princeton

University Press, 1976), 90. xii

David P. Fidler, The International Legal Implications of Non Lethal Weapons, Indiana University

Maurer School of Law, 1999, p. 75 xiii

See Geneva Protocol I art. 54, para. 2 ("It is prohibited to attack, destroy, remove or render useless

objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them ... to the civilian population or to the adverse Party, whatever the motive .... "). xiv

Similar weapons were available to NATO forces in the Kosovo air campaign. See Stephen S.

Rosenfeld, 'Turning Off the Lights in Belgrade,' WASH. POST, May 7, 1999, at A39 (reporting on the U.S. Air Force's unveiling of "a secret 'blackout' bomb that evidently short-circuits the equipment but does not actually physically destroy it. This is what is meant by threats to 'turn off the lights in Belgrade.'"). xv

See ICRC, Water in Iraq (ICRC Special Brochure, July 1996).

xvi

See Geneva Protocol I, art. 48 ("In order to ensure respect for and protection of the civilian

population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives."). xvii

See, e.g., Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, Aug. 12, 1949, art. 3(1), 6 U.S.T. 3114, 3116, 75 U.N.T.S. 31, 32 xviii

See, e.g., D. P. Fidler, ‘‘The meaning of Moscow: ‘‘Non-lethal’’ weapons and international law in the

early 21st century’’, International Review of the Red Cross, Vol. 87, no. 859, 2005, p. 525

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ANONYMITY AND REGULATIONS – A BITCOINS PERSPECTIVE KARTIK CHAWLA INTRODUCTION - THE PHILOSOPHY OF BITCOINS In a recent article, Steve Klabnik, self-noted Bitcoin hater, discussed his experiences with Dogecoin.i In the same article he also discusses Bitcoins and the philosophies behind both the cryptocurrencies, but the essential part of this article is his final reaction to the virtual ‘coins’, which can be summed up in the following quote:

‚Before, I just laughed. Now, thanks to a joke, I’m scared.‛ ii Most of the currencies in the world right now, and all the reserve currencies, are fiat currencies. iii The term ‘fiat currencies’ refers to currencies that are issued by a government, and the government promises to pay the holder of such currencies an equivalent amount in gold, if needed. iv Thus, these currencies usually have a central regulatory body which issues them, and are consequently called ‘centralised’. And at the end of the day, they have the value they have because somebody said so. v The modern state can make anything it chooses as acceptable currency, without any further backing of any kind, even without a connection with gold. vi Satoshi Nakamoto,vii the creator of Bitcoins, saw a problem with this, which is clear from the following excerpt from one of his earliest works: ‚The root problem with conventional currency is all the trust that’s required to make

it work. The central bank must be trusted not to debase the currency, but the history of fiat currencies is full of breaches of that trust. Banks must be trusted to hold our money and transfer it electronically, but they lend it out in waves of credit bubbles with barely a fraction in reserve. We have to trust them with our privacy, trust them

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not to let identity thieves drain our accounts. Their massive overhead costs make micropayments impossible.‛viii Thus, Nakamoto’s ideologies in creating Bitcoins would seem to be entirely political. Supporting this argument is the fact that he introduced the currency just a few months after the collapse of the global banking sector. ix His Bitcoin software would allow its users to send money over the internet directly to each other without an intermediary, and no outside party could create Bitcoins, x entirely cutting out the role of the central banks and governments in online transactions. As Nakamoto said, ‚everything is based on crypto proof instead of trust‛.xi Furthermore, unlike the banks and governments which can print more money whenever they deem fit, the bots that are currently creating Bitcoins are supposed to stop doing so in or around the year 2140 according to their programming itself. xii And unlike fiat currencies, whose value is derived through regulation or law and underwritten by the state, Bitcoins derive their value through the simple principles of supply and demand – they have no intrinsic value and no backing, and their value depends entirely on what people are willing to trade for them. Nakamoto had created the first working cryptocurrency, making it as different from the existing fiat currencies as possible. It was meant to be an alternative to them, a new method of transaction, entirely free of government control, and, perhaps a challenge to it. It was to challenge the governments, to make people rethink the existing economic systems, to question their faith in it. And the fear that Klabnik notes in his article, is a sign that it is succeeding.

A COMMENT ON BITCOINS , AND ANONYMITY There are two essential problems that digital currencies had always faced - doublespending, and hacking. What is to stop someone from creating a copy of the data of their digital currency and spending it again, and what is to stop a hacker or a group of hackers from hacking the Bitcoin code?

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The former of the two issues, double spending, is usually where banks come in. They keep a track of the transactions and balances of their customers, thus making sure they only spend money they actually have – unless they’re buying on credit, obviously. This is referred to as a ‘centralised’ currency system, since all of the currency is monitored by a central agency. xiii Some centralised forms of virtual currencies also exist, such as Facebook credits. These are also subject to similar regulation, and are monitored by banks and governments. xiv The central authority here makes controlling and monitoring customers and their transactions much easier. For instance, in India, the KYC Norms set by the RBI require banks to continuously monitor their customers’ transactions, keep an up-to-date record of their identity, and take steps simply in case any of the transactions of a customer break from his or her usual pattern of behaviour!xv Nakamoto fixed the issue of double spending through a method of peer-to-peer networking, using proof-of-work to record a public history of transactions. xvi Thus, the very same network of nodes that keeps Bitcoins working also at the same time maintains a public record of Bitcoin transactions, informing anyone who wishes to check that Bitcoins have been moved from person A to person B. This record counters double-spending, but protects the identity of the users, since the actual identities of A and B are only know to the parties of the transaction, if even that. This has been commented on in more detail later. This entirely removes the central authority who was earlier a third party intermediary. Simultaneously, this system also allows nodes to leave and connect with the Bitcoin network as they wish, since they work with little or no coordination, and no identification is required – messages are not routed to any specific node, but to the network as a whole, and work on a best effort basis. xvii Any nodes rejoining the network accept the proof-of-work chain as proof of what happened while they were gone, and start working again from the latest point. xviii

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The second issue with cryptocurrency, hacking, is one that any software must face. But all the attempts that have as of yet been made to hack the coding of Bitcoins themselves have been met with failure, xix though attempts at hacking Bitcoin exchanges and wallets xx have been more successful. xxi According to Nakamoto, as long as the total computing power of the ‘honest’ nodes dedicated to keeping the Bitcoin network up and running is more than the computing power of a group of attackers, the network will remain unharmed. xxii Crucially, this does not mean that the Bitcoin software will certainly remain unhackable forever. Just as Nakamoto’s genius created the Bitcoin, it is quite possible that someone will someday successfully crack the Bitcoin software.

ANONYMITY AND BITCOINS As a result of the regulation of fiat currencies and centralised virtual currencies, all transaction involving them are monitored, and data on them is recorded by the central authority.xxiii Thus, no transaction involving these currencies can be entirely anonymous. Bitcoins, as mentioned earlier, do not involve an intermediary. The transactions are entirely peer-to-peer, in the sense that only the parties to the transaction are aware of each others’ identities; the public record of Bitcoin transactions does not note their identity, only notes the transaction. And this is where the ‘crypto’ part of the term ‘cryptocurrency’ comes in. Every transaction is encrypted, with two sets of keys – the public key, and the private key. As their names imply, the public keys are available to everyone, thus adding the transaction to the public list of transactions, but the private keys are, ideally, known only to the owners of the wallet. Before a Bitcoin transaction can be confirmed, the user of the wallet must enter his or her private key. The private key of a Bitcoin address is stored in the wallet itself, designed so that the Bitcoin address can be calculated from the private key, but not the other way around. Hence, even among the parties to the transaction, no personal information is shared. xxiv

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This part of the Bitcoin transaction is one of the most widely misinterpreted – Bitcoin transactions are not usually anonymous. It takes considerable intentional effort to make a Bitcoin transaction entirely anonymous.xxv They are actually pseudonymous, with the Bitcoin wallet address of the Bitcoin user function the same way as an email address. The public ledger of Bitcoin transactions also maintains a record of every user’s encrypted identity. xxvi Bitcoins are anonymous in the sense that the actual identity might not directly be known, and that the governments do not have access to a collection of data about the users of Bitcoin similar to what they would have with users of fiat currencies. But even though they do not offer absolute anonymity, they still offer an increased level of privacy as compared to fiat currencies and centralised virtual currencies. Thus, the main factors that characterise Bitcoins are their decentralisation, the peerto-peer nature of the transactions that excludes third parties, the public ledger of transactions and users, and their pseudonymous nature, and all of these factors culminate in taking away from the governments the power to regulate currencies. Bitcoins have become a functional and viable alternative to the existing system of currencies, essentially without costing their users anything, and at the same removing them from government regulation. Furthermore, they cannot realistically be outlawed or banned by any governments, since there is no essential regulator or creator of Bitcoins that the governments can prosecute. xxvii The essence of Bitcoins, then, is not in anonymity per se, but in the lack of central regulation of the currency. It can even be said that the Bitcoin was actually designed to be regulated – not by a central agency, but by the public at large.

ANONYMITY AND REGULATIONS – A BITCOINS PERSPECTIVE This part of the paper discusses the arguments made for and against the regulation, such as it is, provided by Bitcoins. As has been clarified earlier, Bitcoin transactions are not perfectly anonymous, but rather pseudonymous, but more essentially take the control of the currency away from the government. Obviously enough, that is not Page | 112

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something everyone is comfortable with. The argument made in favour of regulation is that Bitcoins, by the nature of the ‘anonymity’ inherent in them and the lack of a centrally responsible body, facilitate illegal activities, xxviii and whether they can be or perhaps are being used to fund terrorist activities, hacktivist groups, and other similar organisations.xxix In this respect, the relevant example is that of Silk Road. xxx Silk Road was a website which was part of the Dark Web, which is the part of the internet that cannot be accessed directly through search engines, and anonymising software like TOR xxxi must be used to access it. Silk Road was one of the most popular websites on the Dark Web, where users could readily purchase items like black tar heroin, crystal meth, amphetamines, and anabolic steroids. xxxii Since online transactions with fiat money are inherently traceable, users of this website had taken to trading with Bitcoins. The website was taken down by the Federal Bureau of Investigations (hereinafter ‘FBI’) recently. xxxiii Any contemporary discussion on the advantages and drawbacks of Bitcoins is sure to mention Silk Road, as an example of all that is wrong with Bitcoins. That entirely misses the point of Bitcoins, though. Bitcoins are not meant or designed to be used as the black market currency, or to facilitate entirely anonymous transactions. In fact, as discussed earlier in this paper, they are actually designed to

be regulated – just not by the government. Methods of tracking Bitcoin users already exist, and even though they might not be the easiest to execute, with reasonable amounts of due diligence, anyone can figure who owns which wallet addresses. xxxiv Furthermore, even though the supposed ‘anonymity’ of Bitcoins is the part the governments chose to focus on, that is not where Bitcoin and the philosophy behind it begins and ends - they are actually gaining more and more recognition. As far as public acceptance goes currently Bitcoin is still in its nascent stage, and so are the other forms of cryptocurrencies like Dogecoins and Litecoins. While various members of the society are jumping on to the bandwagon with abandon and absolute belief, others are more cautious about it, and still more are outright sceptical. But this

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trend is changing, if at a slower pace than the proponents of Bitcoins would like. This has actually resulted in Bitcoins becoming a forum for speculative investment, at the same time creating a fourth category of people who are buying Bitcoins as an investment, with the belief that they will gain value in the near future. xxxv And then there is the infamous sixth category – the criminals, who use Bitcoins for illicit trades and money laundering. The number of places you can spend your Bitcoins are also increasing at a steady pace.xxxvi For example, with Bitcoins, you can currently order cupcakes and wine in San Francisco;xxxvii order food all over the United States of America; xxxviii manage your WordPress expenses; xxxix start dating online; xl and until recently, pay your Baidu expenses.xli There is an ATM in Vancouver where you can convert your virtual coins into cash, xlii and a Bitcoin exchange in the Eurozone which has officially been approved to act as a bank. xliii At the same time, you can also buy drugs, xliv order assassinations,xlv or, if you prefer doing things yourself, buy illegal weapons.xlvi It is clear from the above that practically speaking, governments, and people too, are just getting used to the idea that Bitcoins, or any form of cryptocurrency for that matter, might actually work, that it actually give fiat currencies a run for their money. And, as is becoming the sad norm with all forms of technological advancements, the governments’ rules, regulations and laws are lagging far behind Bitcoins. Despite the fact that Satoshi Nakamoto’s paper was originally published in 2009, and that Bitcoins have been in use for years now, governments have just started to come out with rules regarding their usage, and even then they have not managed to understand the unique nature of Bitcoins, and hence have failed to control, though the US Congress’ Congressional Research Service has just now come out with a report on Bitcoins that actually manages to comprehend that. xlvii China has just this month taken steps to ban the currency,xlviii the RBI in India has similarly recently come out with a circular,xlix causing the Indian exchanges to shut down their shops. l The US State of California had recently sent a Cease-and-Desist notice to the Bitcoin

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Foundation,

and USA’s Financial Crimes Enforcement Network (hereinafter

‘FinCen) has designed a set of guidelines lii applicable to Virtual Currencies which would make many of the parties in the Bitcoin economy Money Services Businesses (hereinafter ‘MSB’s) under US Law, thus requiring them to subscribe to the cornucopia of regulations MSBs must follow.liii All these steps, taken by the various governments spread throughout the world, only go on to prove that they are again lagging behind in actually understanding the technology behind Bitcoins. When the US shut down Silk Road, Silk Road 2.0 was online and booming within weeks. liv When Silk Road 2.0 started facing issues, other Dark Web blackmarkets gained business. lv When China started cracking down on Bitcoins, the Chinese simply found other ways to use Bitcoins, keeping the value of the Bitcoin in the country stable contrary to the Chinese government’s hopes. lvi The uselessness of a ban on Bitcoins that India seems to be gearing towards has already been discussed earlier, and is even clearer with the example of China.lvii Even despite California’s Cease-and-Desist notice to the Bitcoin Foundation, it is still running, the FinCEN regulations have only created more confusion without actually regulating the money laundering activities well, lviii and the CRS report has actually stated that Bitcoins are a threat to the American dollar, if the situation is not remedied. lix There are some cases pending in the New York courts, which will perhaps deal with the issue better.lx As discussed earlier in this paper, the very digital architecture of Bitcoins is something that makes central regulation impossible, especially by the classic approaches. Like Cloud Computing and Wearable Computer Devices, Bitcoins are a technological revolution, only made possible because their creator thought in ways no one had thought before.lxi In the realm of currencies, they have created a new reality. Any attempts to regulate or track their usage must take a similarly new approach, one that accounts for their unique structure. The governments are, contrarily, sticking to the old laws, attempting to modify them to suit Bitcoins, but

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the fact of the matter is, nothing like Bitcoins existed when these laws were written! Thus, Bitcoins either fall entirely outside the scope of all of these laws, or are covered under them through extremely tenuous arguments. lxii Alternative approaches such as covering them under Contract Law,lxiii or bringing them under the purview of the IMF,lxiv have been suggested, which have their own pros and cons, and again depend heavily on the stance the various governments choose to take. But the fact of the matter remains the same – Bitcoins cannot be regulated by a central regulation mechanism, and if the governments want to take serious measures against illegal activities involving them, they must rethink their existing approaches entirely. And that, fortunately or unfortunately, is something they adamantly refuse to do.

CONCLUSION Bitcoins, and other cryptocurrencies based on the same digital architecture, are an entirely new paradigm for the world of currencies, entirely different from anything that any government, especially the Indian government, has dealt with to date. And along the lines of the widely criticised decisions the Indian government has been taking recently with regards to its various laws and rules which attempt to govern technologies and their uses, the fear that it would deal similarly horribly with Cryptocurrencies is a major concern, especially in light of the recent RBI circular, which has been discussed above. For instance, as noted earlier, one of the main reasons of the appeal of the anonymity provided by Bitcoins right now is essentially a reaction to USA and UK’s surveillance of their own citizens and foreign nationals. lxv And the Indian government has actually launched its Central Monitoring System program, notably more publicly than the other nations since we already know about it, in the fog that surrounds the fallout of the above surveillance programs coming to public knowledge! This would only result in even more people taking to Bitcoins, and that too as quickly as they possibly can. A better method of ‘regulation’, if it can even be called that, would be to set up a network of bots that would trace the users of wallets using the methods discussed above, thereby keeping a track of wallets Page | 116

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associated with known offenders. This would simulatenously also make sure that the core idea behind Bitcoins, the decentralisation, remains intact. Bitcoins, it would seem, are here to stay and prosper. Nakamoto’s software removes the problem of double spending, the code itself has proven to be as of yet unbreakable, the currency itself is gaining public acceptance with surprising speed, attempts at its regulation are failing, and the concept of a market entirely free of government regulation is one that has found its appeal. The crucial words here, though, are ‘as of yet’. Just like no one could have predicted the advent of Bitcoins before Satoshi Nakamoto ghosted onto the internet, it is quite possible that someday, someone will crack the coding of Bitcoins. It seems quite unlikely now, yes, but that is the point behind the unpredictability of technological breakthroughs – even Satoshi Nakamoto noted the possibility of the honest nodes holding up the Bitcoin network being overpowered by attacker nodes.lxvi Thus, while Bitcoins are indubitably a revolution not only in the worlds of Internet and cryptocurrencies, but also in the world of currencies as a whole and the international market itself, whether they will last or not is not a question that can be answered. But they are regardless a lesson for the governments, a proverbial slap in their face, and a reminder that they need to do their jobs better. At the same time, they are a statement of sorts, that Orwellian Big Brothers are not welcome in the cyberspace; that while an absolute lack of regulation is not practically possible, there are limits to the steps that the government can take, and they should not forget that. Bitcoins are, then, a sign that the citizens of various countries around the world are losing trust in their government, that they would rather trust computer programming and a pseudonymous computer programmer than trust it, and every new user of Bitcoins only adds to this sense of distrust. To paraphrase Steve Klabnik, the question that cryptocurrencies, specifically Dogecoins, pose is that if things are worth whatever anyone says they are worth, then why not Dogecoins, or Bitcoins, or a random piece of rock you pick up? lxvii His comment is on the Dogecoin, a project which is inherently more satirical than Bitcoins, and which makes people rethink the entire existing concept of money and currency. The Page | 117

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Bitcoin, on the other hand, goes a step further – it is meant for people who have lost faith in the existing concepts, giving them an alternative, one free of the chains that bind fiat currencies. It is a continuation of the old euphoria that gripped the world when the internet was first opened to the public, fuelled by the heady idea of being as free of governmental control as possible, something that is best expressed by the following immortal quite by John Perry Barlow, former rockstar and founder of the Electronic Frontier Foundation: ‚Governments of the Industrial World, you weary giants of flesh and steel, I come

from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.‛lxviii And another part of the same declaration, that, perhaps prophetically, since it was written in 1996, more closely mentions the Bitcoin: ‚You have not engaged in our great and gathering conversation, nor did you create

the wealth of our marketplaces.‛lxix

REFERENCES i

ii iii

v vi vii

viii

Steve Klabnik, How Dogecoin changed my perspective on Cryptocurrency , THE DAILY DOT, http://www.dailydot.com/opinion/dogecoin-is-real-cryptocurrency/. Id. Vincent Scheurer, The Magic of Money: Can our current system of fiat money survive in the long term?, The Motley Fool, http://news.fool.co.uk//news/investing/2011/07/01/the-magic-ofmoney.aspx. Abba P. Lerner, Money as a Creature of State, THE AMERICAN ECONOMIC REVIEW, 37 (2), 312 (1947). Incidentally, the term ‘fiat’ is Latin for ‚let it be done‛ or ‚it shall be‛. Lerner, supra note 4, at 313. This name has been used in this paper to refer to the pseudonymous identity of the creator Bitcoins. Taken from a five-hundred word essay written by Satoshi Nakamoto, where Bitcoins were mentioned for the first time. A copy of the essay is available at: http://p2pfoundation.ning.com/forum/topics/bitcoin-open-source. Joshua Davis, The Crypto-Currency, THE NEW YORKER, Oct. 10, 2011, 62 http://www.newyorker.com/reporting/2011/10/10/111010fa_fact_davis. Id. Page | 118

Rostrum’s Law Review ISSN: 2321 - 3787 Nakamoto, supra note 8. Benjamin Wallace, The Rise and Fall of Bitcoin, WIRED, Nov. 23, 2011, http://www.wired.com/magazine/2011/11/mf_bitcoin/. xiii Dr. Rhys Bollen, The Legal Status of Online Currencies: Are Bitcoins The Future?, JOURNAL OF BANK. & FIN. L. & PR., 3, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2285247. xiv For instance, in the US, the FinCEN has extended its regulations to Virtual Currencies, thus requiring agencies like Facebook which issue virtual currencies to monitor their customers and their transactions; FinCen, Application of FinCEN's Regulations to Persons Administering, Exchanging, or Using Virtual Currencies, available at: http://fincen.gov/statutes_regs/guidance/html/FIN-2013-G001.html. xv RBI, Master Circular – Know Your Customer (KYC) norms / Anti-Money Laundering (AML) standards/Combating of Financing of Terrorism (CFT)/Obligation of banks under PMLA, 2002 , RBI/2013-14/94, available at: http://www.rbi.org.in/scripts/BS_ViewMasCirculardetails.aspx?id=8179. xvi Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Electronic Cash System, Bitcoin.org , available at: http://bitcoin.org/bitcoin.pdf. xvii Id. xviii Id. xix Davis, supra note 9. xx Bitcoin Wallets are software programs used to keep track of the Bitcoins owned by the user of the Wallet. xxi See Dan Goodin, Bitcoin Talk forum hacked hours after making cameo in Silk Road takedown, ARSTECHNICA, Oct. 4, 2013, http://arstechnica.com/security/2013/10/bitcoin-talk-forum-hackedhours-after-making-cameo-in-silk-road-takedown/; also see Timothy B. Lee, Hacker steals $250k in Bitcoins from online exchange Bitfloor, ARSTECHNICA, Sept. 5, 2012, http://arstechnica.com/techpolicy/2012/09/hacker-steals-250k-in-bitcoins-from-online-exchange-bitfloor/. xxii Nakamoto, supra note 16. xxiii Lerner, supra note 4, 313. xxiv Nikolei M. Kaplanov, Nerdy Money: Bitcoin, The Private Digital Currency, And The Case Against Its Regulation, TEMPLE UNIVERSITY LEGAL STUDIES RESEARCH PAPER, 12, available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115203. xxv Id, at 44. xxvi Congressional Research Service, Bitcoin: Questions, Answers, and Analysis of Legal issues, 6, available at: www.fas.org/sgp/crs/misc/R43339.pdf. xxvii Kaplanov, supra note 24, at 42. xxviii Peter Twomey, Halting a Shift in the Paradigm: The Need for Bitcoin Regulation , 16 TRINITY C. L. REV. 67, 70 (2013). xxix Id, at 71. xxx Id. xxxi Available at: http://www.torproject.org.in/. xxxii Twomey, supra note 28, at 71. xxxiii Nate Anderson & Cyrus Farivar, How the Feds took down Dread Pirate Roberts , ARSTECHNICA, Oct. 3, 2013, available at: http://arstechnica.com/tech-policy/2013/10/how-the-feds-took-down-thedread-pirate-roberts/. xxxiv Sarah Meiklejohn et alia, A Fistful of Bitcoins: Characterising Payments Among Men with No Names, INTERNET MEASUREMENT CONFERENCE 2013. xxxv Agustino Fontevecchia , Winklevoss Twins Say Bitcoin Market To Hit $400B, Urge Regulators Not To Push Innovation To China , FORBES, Dec. 11, 2013, http://www.forbes.com/sites/afontevecchia/2013/11/12/winklevoss-twins-say-bitcoin-market-to-hit400b-urge-regulators-not-to-push-innovation-to-china/. xxxvi For instance, a list of places where you can spend your Bitcoins in the UK is available here: Matthew Sparkes, Ten Places where you can spend your Bitcoin in the UK, THE TELEGRAPH, Jan. xi

xii

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10, 2014, http://www.telegraph.co.uk/technology/news/10558191/Ten-places-where-you-can-spendyour-bitcoins-in-the-UK.html; a more diverse list is available at: http://www.coindesk.com/information/what-can-you-buy-with-bitcoins/. xxxvii The website for the Cups and Cakes Bakery in San Francisco is available here: http://cupsandcakesbakery.com/. (In the lower part of the page, they mention ‚ We accept Bitcoins, Buy Cupcakes with Bitcoins‛). xxxviii The website for Foodler is available here: http://www.foodler.com/. (There is a Bitcoins section at the bottom of the page). xxxix The official WordPress statement is available here: http://en.blog.wordpress.com/2012/11/15/payanother-way-bitcoin/. xl Betsy Isaacson, OKCupid To Begin Accepting Bitcoin Payments For Premium Features , THE HUFFINGTON POST, April 16, 2013, http://www.huffingtonpost.com/2013/04/16/okcupidbitcoin_n_3093427.html. xli See Matt Clinch, Baidu Division Now Accepting Bitcoins , CNBC, Oct. 16, 2013, http://www.cnbc.com/id/101116330; also see Bloomberg News, Baidu Stops Accepting Bitcoins After China Ban, BLOOMBERG PERSONAL FINANCE, Dec. 7, 2013, http://www.bloomberg.com/news/2013-12-07/baidu-stops-accepting-bitcoins-after-china-ban.html. xlii Julie Gordon, Bitcoin goes mainstream with ATM in Vancouver coffee shop , REUTERS, Oct. 29, 2013, http://uk.reuters.com/article/2013/10/29/uk-bitcoin-atm-idUKBRE99S1ED20131029. xliii Timothy B. Lee, Bitcoin going mainstream? Exchange approved to operate as a bank, ARS TECHNICA, Dec. 7, 2012, http://arstechnica.com/tech-policy/2012/12/bitcoin-going-mainstreamexchange-approved-to-operate-as-a-bank/. xliv Patrick Howell O’Niell, As Silk Road 2.0 Struggles, new black markets look beyond TOR , THE DAILY DOT, Dec. 26, 2013, http://www.dailydot.com/crime/deep-web-black-markets-beyond-tor-i2p/. xlv Andy Greenberg, Meet The 'Assassination Market' Creator Who's Crowdfunding Murder With Bitcoins, FORBES, Nov. 18, 2013, http://www.forbes.com/sites/andygreenberg/2013/11/18/meet-theassassination-market-creator-whos-crowdfunding-murder-with-bitcoins/. xlvi Adrian Chen, Now You Can Buy Guns on the Underground Marketplace, GAWKER, Jan. 27, 2012, http://gawker.com/5879924/now-you-can-buy-guns-on-the-online-underground-marketplace. xlvii The full report is available here: http://www.fas.org/sgp/crs/misc/R43339.pdf. xlviii James Titcomb, China's answer to Amazon, Alibaba, bans Bitcoin , TELEGRAPH, Jan. 8, 2014, http://www.telegraph.co.uk/finance/currency/10558945/Chinas-answer-to-Amazon-Alibaba-bansBitcoin.html. xlix RBI, RBI cautions users of Virtual Currencies against Risks , Dec. 24, 2013, available at: http://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=30247 l Cade Metz, Bitcoin Exchanges Shut Down in India After Warning, WIRED, Dec. 27, 2013, http://www.wired.com/business/2013/12/bitcoin-india/. li Nathan Mattise, California sends a cease and desist order to the Bitcoin Foundation , ARSTECHNICA, June 24, 2013, http://arstechnica.com/tech-policy/2013/06/california-sends-a-ceaseand-desist-order-to-the-bitcoin-foundation/. lii FinCEN, supra note 14. liii Id. liv John Biggs, Silk Road 2 Still Running After Moderator Arrests, TECHCRUNCH, Dec. 23, 2013, http://techcrunch.com/2013/12/23/silk-road-2-still-running-after-moderator-arrests/. lv Howell, supra note 44. lvi Titcomb, supra note 48. lvii Kaplanov, supra note 24, at , 42. lviii Timothy B. Lee, US regulator: Bitcoin exchanges must comply with money-laundering laws, ARSTECHNICA, Mar. 19, 2013, http://arstechnica.com/tech-policy/2013/03/us-regulator-bitcoinexchanges-must-comply-with-money-laundering-laws/. lix The full report is available here: http://www.fas.org/sgp/crs/misc/R43339.pdf.

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lxi lxii lxiii lxiv

lxv lxvi lxvii lxviii

lxix

Rob Wile, Here are all the Details About the Upcoming New York Bitcoin Hearings , BUSINESS INSIDER, Jan. 10, 2014, http://www.businessinsider.in/Here-Are-All-The-Details-About-TheUpcoming-New-York-Bitcoin-Hearings/articleshow/28650577.cms. Davis, supra note 9. Kaplanov, supra note 24, at , 38-39. Kaplanov, supra note 24, at , 41. Nicholas Plassaras, Regulating Digital Currencies: Bringing Bitcoin Within the Reach of the IMF , 14 Chi J Intl. L (2013), 24. Kaplanov, supra note 24, at , 11. Nakamoto, supra note 16. Klabnik, supra note 1. John Perrry Barlow, A Declaration of Independence of Cyberspace, ELECTRONIC FRONTIER FOUNDATION, available at: https://projects.eff.org/~barlow/Declaration-Final.html. Id.

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LEGALIZING GAMBLING IN INDIA: TACKLING MATCH-FIXING BY THE REGULATION OF SPORTS-BETTING MAYANK SAMUEL INTRODUCTION ‚Sometimes a 3-1 favourite loses. That’s why they call it gambling, and that’s why they keep flipping over the cards.‛ i - Richard Roeper It has always been the desire of the man to get rich overnight which led to a search for different ways and means, one of which is gambling. Gambling, one of the oldest industries in the world, is regarded by some as a vice and sinful activity and by others as a harmless form of entertainment. On the other hand, gambling has played a considerable role in the American history with the usage of lotteries by the First Continental Congress to finance the Revolutionary War and the founding fathers such as Benjamin Franklin and George Washington sponsoring private lotteries. ii Three key elements of gambling:1. Something valuable is being put at risk 2. The outcome of the game is determined by chance 3. Irreversible nature All forms of gambling require three elements, namely prize, chance and consideration and a person gambles when he takes the chance of losing his money or belongings. iii People choose to gamble to win money in order to overcome their financial hardships, to socialize or just as a source of excitement. While gambling was once illegal and viewed as a disreputable activity, it is increasingly becoming a Page | 122

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popular recreational activity. Gambling is not only associated with casinos and racetracks but also other innumerable activities such as Bingo, betting on games of skill such as golf and Internet gambling (sites such as bet365.com) making it a multibillion dollar industry with continual growth and giving birth to resort cities such as Las Vegas, the Gambling Capital of the world.

ADVANTAGES OF LEGALIZED GAMBLING Negative perceptions about gambling in the Indian society with the media and the government calling it a social evil has restricted the growth potential of the industry though gambling is merely a ‘chance’ activity with a monetary value attached to it. iv All of us in our daily lives are involved in some form of ‘chance’ activity though we don’t attach any monetary value to our predictions but merely attaching monetary value to such predictions doesn’t make it illegal or immoral. Economic Acceleration South-east Asian nations such as Thailand having lesser number of tourist spots attract more international tourists than India and therefore tourism-related revenue as they promote tourism with the help of gambling-related activities. India, in order to attract more foreign tourists and therefore, earn valuable foreign exchange should amend suitably the outdated local and national laws and set up a national level Gambling Regulatory Authority on the lines of UK Gambling Commission so that hotels in the important tourist centres of India are allowed to operate casinos and thus provide the currently missing ‘fun’ part of a tourist activity. A regulated gambling industry in the country with young population, robust economy and superpower status in the IT sector would have a positive multiplier effect on other sectors in the supply chain such as real estate, advertising, banking and hotel industry. The policy makers of the country by providing the right legal framework to legalize gambling in a regulated manner in India would see thousands of billions of rupees of black money involved in illegal gambling coming to the legal economy for Page | 123

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the benefit of citizens of the country not only filling the Exchequer but also providing employment negating the effects of economic slowdown. This resulting increase in the tax revenue would also lower the tax burden on other sources and, therefore, would be welcomed by other citizens of the country. v Curbing Corruption in Sports Former International Cricket Council (ICC) chief, Ehsan Mani, urging the ICC and Board of Control for Cricket in India (BCCI) to pressurize the Indian government to legalize betting said that match fixing can’t be stopped until and unless the betting industry is regulated in India calling India as the epicentre of cricket betting. vi He further added that betting should be legalized and regulated in India in order to monitor the conduct of the bookies also reducing the risk of corrupting players around the world who are lured into match fixing and spot fixing due to the huge money involved in the business.

vii

Such cricket-fixing allegations which are

detrimental to the country’s reputation projecting India as a corrupt nation can be eliminated by legalizing gambling in India benefitting not only nation’s economy but also its pride. Entertainment value Gambling, made illegal in India with the intention of strengthening Indian economy by Public Gambling Act, 1867 took into account moral and financial arguments though the legislation was unsuccessful in stemming gambling as when a population is asked not to gamble, it’s the first thing they’d do, driving gambling underground. Mahatma Gandhi also spoke out against gambling giving moral arguments to support his stance calling it a morally corrupt activity. viii All such arguments didn’t take into account the enjoyment that is derived from low-stakes betting for entertainment purposes with the evil aspects of gambling reduced by legislation. The lawmakers, not ready to consider the entertainment aspect of gambling are unwilling

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to legalize gambling despite the economic and social advantages fearing an attack from media and rival political parties. Bridging Class gaps in Society Another social advantage of legal gambling in India such as horse racing, increasingly becoming popular in the country, is the interaction of ordinary people with the richest people of society which is a rare sight in India, infamous for its everexpanding inequalities. Increasing employment rate Lottery stalls, found all over India, provide jobs for the people that print the tickets, sell them and increasing the newspaper sales in which the lottery results are published, providing employment to a large number of people in the chain. Putting Taxpayers’ money to better use A large amount of money and time of the government which is spent in tracking down the criminals involved in illegal gambling could be put for better use such as improving the infrastructure of the country as such people do not provide any imminent threat to the public. Such a thing would also, on the other hand, ensure that the money made in illegal betting doesn’t fund terrorism and other forms of criminal activities posing a danger to the society. Reduction in the profits of crime-lords Another argument advanced in favour of legalizing gambling is that it is impossible to enforce laws against gambling with the only effect of such laws being an increase in the price of gambling and therefore, an increase in the profits of the criminal elements.

CASE STUDY: SIKKIM’S PLAYWIN LOTTERY AND GOA’S FLOATING CASINOS Page | 125

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The transformation of Sikkim from a small, sleepy Himalayan state to one of the major hubs of Indian gambling industry is one of the pronounced effects of legalized gambling due to a large amount of investment which has brought economic power in Sikkim. Sikkim’s economic progress has been remarkable due to legalized gambling such as PlayWin lottery the first national lottery of India. ix Another such example is Panjim in Goa, previously neglected by the tourism industry in favour of beach resorts, which has seen an economic boom with thriving businesses due to the tourism brought in by the gambling industry, pulling in gambling fans from all over Asia to Mandovi river, home to India’s largest casinos floating on large ferries. x

DISADVANTAGES OF LEGALIZED GAMBLING ‚Gambling: The sure way of getting nothing for something.‛ xi -Wilson Mizner Addiction to Gambling The lure of ‚getting something for nothing‛ has attracted the individual towards gambling and, therefore, the biggest impact of legalizing gambling has been seen in people’s homes where individuals tend to over-gamble, spending all their earnings on the table leading to severe problems in the households. One of the significant drawbacks of legalizing gambling industry has been increasing its accessibility to people with about 130 million people visiting casinos in USA which is about double the attendance at major league baseball games.xii Financial concerns Legalizing gambling would be detrimental to the financial position of the citizens with people choosing to gamble to make quick money instead of investing it wisely. The casinos, with so much money at stake, analyse the situation which makes a gambler stay longer on the table and lose as much money as possible disappointing the gamblers who come to casinos with the intention of winning money.

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Increase in Crime rates Due to lack of self-restraint of the gamblers, various problems such as loss of money, neglecting the duties and responsibilities, getting into trouble with gambling cartels due to their attempts to dupe casinos through illegal means and indulging in overdrinking arise which increases the crime rate in a region with illicit activities such as money laundering, and counterfeit money taking place. Atlantic City in US is one example where legalizing gambling saw a phenomenal 320% rise in the crime rate and a 100% rise in cases of rape, muggings and burglary.xiii Another observation is an increase in the suicide rates in the areas where gambling has been legalized as compulsive gambling leads to suicide.xiv Small Businesses suffer Even though the tourism industry on the whole would prosper, other small business establishments providing recreation and establishment will suffer with most people visiting only the casinos, and therefore, such growth rate would be uneven. xv Loss of National income Nobel Prize-winning economist Paul Samuelson described gambling as sterile transfers of money and goods between individuals creating no new money for goods while absorbing time and resources which if pursued beyond a certain limit of recreation would subtract from the national income. xvi Further, the revenue boosts from legalized gambling are short-lived generating gambling dependence and failing to maintain a city through recession. Social evil Gambling is a social evil not only causing an erosion of oneâ&#x20AC;&#x2122;s ethics but also leading to irresponsibility amongst the youths of the country who initially start off by spending little amounts but later, end up wasting their earnings, becoming irresponsible citizens of the society and the country setting a wrong example for the

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younger generations. Therefore, the financial benefits provided by gambling are dwarfed by the social and cultural risks posed by addiction to gambling. ‚If you think legalizing games of chance starves out the criminals, look at Las Vegas, where the games are legal, yet the hoods still deal themselves in and related vices xvii

flourish.‛ -Late J. Edgar Hoover, Director, FBI Revenue generation is an illusion

Senator Alexander Wiley of Wisconsin while urging the state of Alaska not to legalize gambling said that the idea of increasing revenue through gambling is an illusion as every dollar raised would mean five dollars spent in ‚higher police costs, higher court costs, higher penitentiary costs and higher relief costs.‛xviii Sheer waste of time Another disadvantage of legalizing gambling is the extraordinary waste of time involved while neglecting their family and work, especially when gambling becomes an addiction. xix The late Elder Richard L. Evans of the Council of Twelve aptly described it in the following statement:‚The spirit of gambling is a progressive thing. Usually it begins modestly; and then like many hazardous habits, it often grows beyond control. At best it wastes time and produces nothing. At worst it becomes a ruinous obsession and fosters false living by encouraging the futile belief that we can continually get something for nothing.‛ xx

HISTORY OF GAMBLING IN INDIA Gambling has been an integral part of the Indian culture with texts dating back to 2000 BC making reference to gambling as a pastime of Indian rulers and chieftains. Mahabharata presents the most famous gambling story where Yudhishthira, ended up gambling his entire kingdom, his brothers, his wife Draupadi and eventually

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himself to king Shakuni.xxi By the 15th century, gambling houses were legalized with a share of the profit going to the king leading to a boom in the gambling which took a toll on the society and, therefore, forcing the British Empire in the 19 th century to declare gambling an illegal activity in the country under the Public Gambling Act 1867 despite the tax gains.

LEGAL POSITION OF GAMBLING IN INDIA Legal Definition of gambling The term ‘Gambling’ includes any activity or undertaking whose determination is influenced by chance or accident and an activity or undertaking which is entered into or undertaken with consciousness of the risk of winning or losing a prize competition or a wagering contract, as defined under List II Entry 34 of the Constitution of India.xxii 1. Public Gambling Act 1867- The legislation making gambling in India illegal Public Gambling Act 1867 outlawed all forms of gambling in India except Horse Racing, Rummy and Lotteries.xxiii Under Section 3 of the Public Gambling Act, 1867 which lays down penalty for owning or keeping, or having charge of a gaming-house, ‚Whoever, being the owner or occupier, or having the use, of any house, walled enclosure, room or place situated within the limits to which this Act applies, opens, keeps or uses the same as a common gaming-house; and whoever being the owner of such place knowingly or wilfully permits the same to be opened, occupied, used or kept by any other person as a common gaming-house; and whoever has the care or management of, or in any manner assists in conducting, the business of any house, walled enclosure, room or place as aforesaid, knowingly or wilfully permits the same to be opened, occupied, used or kept by any other person as a common gaminghouse; and whoever has the care or management of, or in any manner assists in conducting, the business of any house, walled enclosure, room or place as aforesaid, opened, occupied, used or kept for the purpose aforesaid; and whoever advances or Page | 129

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furnishes money for the purpose of gaming with persons frequenting such house, walled enclosure, room or place shall be liable to a fine not exceeding two hundred rupees, or to imprisonment of either description, as defined in the Indian Penal Code for any term not exceeding three months. xxiv The act not only declares gambling done as a business to earn profits illegal but also visiting gaming-house without an active participation a crime with mere presence being enough.xxv Under this act, the police have been given full authority to search, enter, arrest all the occupants and seize all the gambling instruments.xxvi Though the Public Gambling Act 1867 makes gambling illegal, section 12 has kept certain activities requiring skill whenever played out of its purview. xxvii Bona-fide business transactions valid under the contracts of indemnity, share market, purchase or sale of securities in future also doesn’t come under the purview of gambling. 2. Indian Contract Act 1872- Agreements by way of wager void Section 30 of the Act prevents a person from recovering any winnings on an agreement based on a future event wherein the loss of one party is the gain of another party as agreements by way of wager are void. xxviii It may be legal to buy a lottery ticket in India but the winner of such lottery will’ve no remedy against the lottery agency if it refuses to pay the winnings. The MP High Court reiterated a similar position in Subhash Kumar Manwani v. State of MP wherein the Court dismissing the appeal under Section 96 of the Code of Civil Procedure held that the promise to pay prize in a lottery cannot be enforced by civil suit due to prohibition contained in Section 30 of the Indian Contract Act.xxix Case Laws The argument that skill based games wherever played are not illegal was reiterated in MJ Sivani v. State of Karnataka where the SC ruled that games where the element of chance is predominant fall under the category of gamble. xxx In S.P. Nathan v. State of Tamil Nadu, the Madras HC held that unregulated video game operators not only

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pose danger to public peace and safety but also the vulnerable public suffer losses while playing in games of chance and therefore the prohibition of video games based on pure chance or mixed chance are not violative of Article 21 nor is the procedure established by law unjust or unreasonable.xxxi The legal position in India on poker as a skill or a chance based game continues to be uncertain with the SC in State of Andhra Pradesh v. K Satyanarayana while answering the question of rummy being a game of chance or skill held that the game of rummy is not entirely a game of chance and does require skill of memorizing and discarding cards. xxxii

GAMBLING LAWS IN UNITED KINGDOM AND UNITED STATES OF AMERICA United Kingdom UK’s obsession with gambling is driven by the number of sporting events held across the country with nearly 73% of UK adults participating in some form of gambling in 2010.xxxiii Under the UK Gambling Act 2005 which regulates commercial gambling in Britain, betting means ‘the making or accepting of a bet on the outcome of a race, competition or other event; the likelihood of anything occurring or not occurring; or whether anything is or is not true.’ xxxiv Under the Act, betting in UK is regulated by the Gambling Commission which aims to keep gambling crime free, ensure transparency and protect children and vulnerable adults on behalf of the UK government’s Department for Culture, Media and Sport (DCMS) which govern the government policy relating to horse-racing, greyhound racing and lottery. xxxv The UK gambling industry generated revenues worth 82 billion pounds and gave employment to 120,665 people in 2012-13 with the growth rate at 5.8% and the annual growth during the five-year period 2008-13 at 2.2% with a total of 1,243 businesses. xxxvi The Act aimed at creating a modern gaming industry in Britain capable of making a positive contribution to the development of the leisure economy by boosting employment during economic downturn and promoting the welfare of

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the customers.xxxvii Neighbouring European countries such as France and Italy are in the process of drafting laws which allow online gambling in order to curb unemployment and generate revenues. xxxviii The act, though, commercialized the gambling industry in UK was failed by the taxation policies of the government which failed to tax all regulated forms of gambling under one fair regime with some forms of gambling facing the brunt of heavy taxes whereas online gambling remained untouched. xxxix All UK bookmakers, such as William Hill, shifted their online businesses to gambling-friendly tax havens such as Gibraltar in order to avoid taxation by the government and maximize their profits. xl The legislature, addressing this loophole, made changes in the gambling laws taxing the offshore operators with an idea of broadening the tax base by taxing the wagers on a point-of-consumption basis and providing a fair competition between UK and overseas remote gambling operators imposing a 15 % duty on online gambling profits generated in the country.xli United States of America Gambling, deeply rooted in the American culture has shaped the history of America since the pre-colonial times where the proceeds from lotteries authorized by the ruling English monarchy were used to subsidize explorations of the New World. xlii The first era of gambling where government and private lotteries were common in the colonial America ended with the spread of Jacksonian morality in the country and numerous publicized scandals. xliii Post-Civil war reconstruction introduced a second era of gambling where lotteries were employed as a form of voluntary taxation to rebuild the war-torn South.xliv This era ended by a scandal involving the Louisiana lottery with the federal legislation banning the state-run lotteries and other forms of a gambling in 1890. xlv The United States, in the 21st century, is in the midst of a third era of widespread legalized gambling which began in 1931 with the state of Nevada re-legalizing casinos. xlvi Initially, off-track betting and back room casino games were treated as organized crimes by law-enforcement agencies with Page | 132

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legal gambling opportunities limited to Nevada casinos, charitable bingo and horseracing though gambling expanded greatly after New Hampshire initiated the first modern state lottery signifying a change in traditional, social and moral barriers. xlvii Slow economic growth, cuts in federal funding and growth in public needs during the late 1980’s and early 1990’s forced the state governments to explore additional sources of revenue with states turning to lotteries and casino gambling which further led to an increase in tourism, employment and tax revenues. The New Jersey Casino Control Act 1977 stated that legalized casino gambling has been approved by the New Jersey citizens as a tool of urban re-development of the city. xlviii The Congress passed the Indian Gaming Regulatory Act 1988 allowing the tribes to operate any form of legalized gambling in their resident state. xlix According to the data provided by National Opinion Research Centre, 1999, some form of gambling has been legalized in all but three states of USA and lotteries in 37 states. l Casino gambling continues to be illegal in most of the states though Colorado, Illinois and Indiana have legalized casino gambling to provide employment to citizens and improve their economy. Internet Gambling Regulation, Consumer Protection and Enforcement Act 2013, introduced in the US Congress bringing the regulation of online gambling and betting under the Federal Department of Treasury would allow a comprehensive system regulating all forms of online gambling while also bringing in an element of flexibility allowing the state to either participate in the internet gaming licensing system or prohibit such system in their state.li The attention-grabbing findings of the American Gaming Association (AGA) of casinos generating one percent of the US’s GDP in 2010 of $14.5 trillion with 566 casinos in 22 states of US providing 820,000 jobs and taking $49.7 billion from tourists show that gambling industry propped the US economy during and after the 2008 Financial crisis. lii According to a national economic impact study released by the AGA, the national commercial casino industry grossed second-largest gaming revenues ever in 2012 after three consecutive years of escalating growth when it reached its highest levels of gross gaming revenues since prior to the 2008 Page | 133

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recession. liii The report also stated that an overwhelming majority of 85% of American adults view casino gaming as acceptable for themselves representing the highest acceptability level in the last decade. liv

CONCLUSION ‚Luck is a very thin wire between survival and disaster, and not many people can keep their balance on it.‛lv - Hunter S. Thompson The effects of legalization of gambling in a country would depend on the selfdiscipline of the citizens and the magnitude on which the gambling industry is welcomed in a region. Legalizing gambling and betting may or may not serve the purpose depending on the favour or opposition of the same based on the arguments mentioned above as a person influenced by either side of the arguments will take a stand to favour or oppose the legalization of betting. The advantages and disadvantages are observed by the residents of cities that host casinos and therefore, while gambling can prove to be extremely beneficial bringing in economic stability and prosperity in some areas, in other areas it can destroy lives as well. Gambling would continue to be prevalent in India regardless of whether it is legalized or not due to their popularity though legal forms of gambling have had beneficial effects on both local and national economies and illegal forms of gambling continue to fund terrorist organizations and crime lords which not only damages the country’s economy but also the pride and reputation of the country. A number of countries have legalized gambling in a regulated and safe manner and India could set up a national level Gambling Regulatory Authority on the lines of UK Gambling Commission. India, before legalizing gambling in the country should see that the advantages significantly outnumber the disadvantages in a particular region because if they can bring in the ‘fun’ part, they can at the same time, bring in

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irresponsibility and criminality adversely affecting the poorer, uneducated Indians who may gamble their lifeâ&#x20AC;&#x2122;s savings.lvi

ENDNOTES

Richard Roeper, available at http://www.searchquotes.com/quotation/Sometimes_a_3- 1_favorite_ loses._That's_why_they_call_it_gambling,_and_that's_why_they_keep_flipping_/198080/. ii

History of Gambling in the United States, available at http://www.library.ca.gov/crb/97/03/ chapt2.html. iii

Prof. I. Nelson Rose, GAMBLING AND THE LAW, Gambling and the Law, http://www.gambling andthelaw.com /index.php/8-information/information/1-qgambling-and-the-law-rq. iv

Kamini Mathai, Gambling addiction growing but few admit to it, The Times Of India, June 1, 2013, http://articles.timesofindia.indiatimes.com/2013-06-01/india/39674076_1_gambling-problem-gamblingaddiction-psychiatrist. v

Rahul Thadani, Legalized Gambling Pros and Cons, Buzzle, http://www.buzzle.com/articles/legalizedgambling-pros-and-cons.html. vi

AFP, Ex-ICC chief says India is illegal betting hub, Mar. 20, 2012, http://tribune.com.pk/story/352542/ex-icc-chief-says-india-is-illegal-betting-hub/. vii

id.

viii

Prof. Dr. Yogendra Yadav, Gambling and Mahatma Gandhi, The Gandhi-King Community, http://gandhiking.ning.com/profiles/blogs/gambling-and-mahatma-gandhi. ix

George Oborne, Why Gambling In India Needs To Be Legalized, IndiaBet, http://www.indiabet.com/indian-betting/495110/why-gambling-in-india-needs-to-be-legalised. x

Sambuddha Mitra Mustafi, Poke Me: Why India should legalise casinos, Oct 16, 2013, http://articles. economictimes.indiatimes.com/2013-10-16/news/43107322_1_casinos-gambling-american-gamingassociation. xi

Wilson Mizner, available at http://www.brainyquote.com/quotes/quotes/w/wilsonmizn125526.html.

xii

Should Gambling Be Legalized?, StudyMode, http://www.studymode.com/essays/Should-GamblingBe-Legalized-1189.html. xiii

Pp. 21-22, Legalized Gambling: For and Against, Rod L. Evans and Mark Hance (eds.), (Open Court Publishing, 1998). xiv

id. at P. 210.

id. at Pp. 213-214.

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xvi

Pp. 99-99, Gambling in America: An Encyclopaedia of History, Issues, and Society, William Norman Thompson, (ABC-CLIO, 2001). xvii

Dallin H. Oaks, The Evils of Gambling, THE CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, http://www.lds.org/ldsorg/v/index.jsp?vgnextoid=2354fccf2b7db010VgnVCM1000004d82620aRCRD&lo cale=0&sourceId=c4650b2e72c1c010VgnVCM1000004d82620a____&hideNav=1. xviii

P. 232, Christians and the Gambling Mania, Lycurgus M. Starkey, (New York: Harper and Row, 1967). xix

supra. note xvii.

P. 5, Elder Dallin H. Oaks, Gambling—Morally Wrong and Politically Unwise, http://stoppredatorygambling. org/wp-content/uploads/2012/12/Dallin-Oakes-of-LDS-Church-PredatoryGambling-is-Wrong-and-Politically-Unwise.pdf. xxi

Sports and Games in Ancient India, available at http://veda.wikidot.com/info:origin-of-games.

xxii

P.1080, V.N. Shukla’s Constitution of India, Mahendra P. Singh, (Lucknow: Eastern Book Company, 2012). xxiii

The Public Gambling Act 1867, available at http://indiankanoon.org/doc/1824663/.

xxiv

Section 3 - Penalty for owning or keeping, or having charge of a gaming-house, The Public Gambling Act 1867, available at http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59797&iPage=1&h Text= . xxv

Section 4 - Penalty for being found in gaming-house, The Public Gambling Act 1867, available at http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59798&iPage=1&hText=. xxvi

Section 5 - Powers to enter and authorise police to enter and search, The Public Gambling Act 1867, available at http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59799&iPage=1&hText=. xxvii

Section 12 - Act not to apply to certain games, The Public Gambling Act 1867, available at http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=59806&iPage=1&hText=. xxviii

Section 30 - Agreements by way of wager void, The Indian Contract Act 1872, available at http://www.manupatrafast.in/Search/dispsearch.aspx?nActCompID=15358&iPage=1&hText=. xxix

AIR 2000 MP 109

xxx

AIR 1995 SC 1770

xxxi

AIR 2001 Mad 159

xxxii

AIR 1968 SC 825

xxxiii

Heather Wardle and Alison Moody, Don’t bet on it!: Why what you think you know about gambling is probably wrong, GamCare, Spring 2011, http://www.gamcare.org.uk/pages/dont_bet_on_it.html. Page | 136

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xxxiv

P. 18. Gambling Act 2005, http://www.legislation.gov.uk/ukpga/2005/19/pdfs/ukpga_20050019_en.pdf. xxxv

id. at P. 23.

xxxvi

Gambling & Betting Activities in the UK: Market Research Report, IBIS World, http://www.ibisworld. co.uk/ market-research/gambling-betting-activities.html?partnerid=prweb. xxxvii

Ian Burke, With betting industry taxes, the Government is gambling with economic growth, Jan 08 2012, http://www.telegraph.co.uk/finance/comment/9001143/With-betting-industry-taxes-theGovernment-is- gambling-with-economic-growth.html. xxxviii

The latest news from Europe - debates about national gambling laws continue, OLSWANG, http://www.olswang.com/articles/2011/02/the-latest-news-from-europe-debates-about-nationalgambling-laws-continue/. xxxix

supra. note xxxvii.

Nathalie Thomas, William Hill prepares to challenge UK online gaming tax, Jul 30 2012, http://www.telegraph.co.uk/finance/newsbysector/retailandconsumer/leisure/9436762/William-Hillprepares-to-challenge-UK-online-gaming-tax.html. xli

id.

xlii

P. 19, Pathological Gambling: A Critical Review, National Research Council, (Washington, DC: The National Academies Press, 1999). xliii

id.

xliv

id.

xlv

id.

xlvi

id.

xlvii

id. at Pp. 19-20.

xlviii

The State of New Jersey v. Trump Hotels and Casino Resorts Inc. (734 A.2d 1160 (1999)), available at http://www.leagle.com/decision/19991894734A2d1160_11869. xlix

NATIVE AMERICAN GAMING, NATIONAL GAMBLING IMPACT STUDY COMMISSION, http://govinfo.library.unt.edu/ngisc/research/nagaming.html. l

Gambling in the United States, available at http://www.library.ca.gov/crb/97/03/chapt1.html.

Online Gambling, American Gaming Association, http://www.americangaming.org/governmentaffairs/key-issues/online-gambling. lii

Pp. 1-2, Coleman Bazelon, Kevin Neels & Pallavi Seth, Beyond the Casino Floor: Economic Impacts of the Commercial Casino Industry, American Gaming Association, http://www.americangaming.org/sites/default/files /uploads/docs/final_final_brattle_study_2-3-12.pdf.

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liii

Brian Lehman, 2013 Report Shows Commercial Casino Industryâ&#x20AC;&#x2122;s Highest Growth Rates Since Recession, American Gaming Association, http://www.americangaming.org/newsroom/pressreleases/2013-report-shows-commercial-casino-industry%E2%80%99s-highest-growth-rates-since. liv

id.

Hunter S. Thompson, available at http://www.brainyquote.com/quotes/quotes/h/huntersth588334.html. lvi

Rama Lakshmi, India considers legalizing sports gambling as way to curb match-fixing, June 25, 2013, http://www.washingtonpost.com/blogs/worldviews/wp/2013/06/25/india-considers-legalizingsports-gambling-as-way-to-curb-match-fixing/.

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DECRIMINALIZATION OF CANNABIS IN INDIA NARESH GUPTA ABSTRACT We live in a country where government owned shops in holy cities like Varanasi sell cannabis in the form of bhang. This essay seeks to cover various dimensions of this topic from the medicinal and religious use of cannabis in Ancient India to its widespread use under the British raj and present situation under the Narcotic Drugs and Psychotropic Substances Act which forced drug dealers to switch from selling ganja to selling smack and other hard drugs. It further seeks to give an elaborate perspective by taking into consideration views of Indian Government officials from Narcotics Control Bureau and AIIMS and Government Reports from various other countries including the Indian Hemp Drugs Commision Report. The authors have focussed on the scientific aspect and chemical theory of Cannabis taken from various medical journals which shows that THC has mild to moderate analgesic effects and its use is much less dangerous than tobacco, prescription drugs, and alcohol in social harms, physical harm, and addiction. The authors have also focussed on evidence and data collected by various governmental and nongovernmental organisations indicating positive effects of decriminalisation of cannabis. Further the essay suggests decriminalization of cultivation, possession, trade and consumption of drugs made from Cannabis Plant in small quantities using the Portuguese model which comprises of necessary preventive and educational activities where drug users identified by law enforcement agencies will be referred to the Drug

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Addiction Review Judge. It promotes the fundamental notion of ‚fighting the disease, not the patients‛ Keywords:

Decriminalization,

cannabis,

bhang,

scientific,

criminal,

hemp,

commission, medical.

INTRODUCTION ‚In strict medical terms marijuana is far safer than many foods we commonly consume. For example, eating 10 raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death. Marijuana in its natural form is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within the supervised routine of medical care.‛ i 17 years ago, All India Institute for Medical Sciences, Delhi (AIIMS), conducted a national workshop on ‚Cannabis-Health Damage and Legislative Options‛ in which medical professionals concluded that ‚cannabis does not have adverse health effects, it gave recommendations to the Home Ministry to reconsider existing laws for drugs made from the female Cannabis Sativa plant i.e. ganja, charas and bhang‛.ii At the same time, A.K. Srivastava, Joint Director, Narcotics Control Bureau (NCB) said: ‚we have no objection to making changes in the Narcotic Drugs and Psychotropic Substances Act (NDPS Act), he further added that cannabis grows wild and burning it down has been a futile exercise, you burn it and it grows back in a year. iii These aforesaid mentioned reactions were recorded on the 10 th Anniversary of the NDPS Act which was a poor law that clubbed cannabis, hashish and bhang with hard drugs like smack, heroin and cocaine and banned them all. Most drug dealers switched from selling ganja to selling smack and other hard drugs. This was so because while the risk was the same, the profits from selling heroin were several times higher.iv The NDPS Act did more bad than good.

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The sad part was not only we criminalized use of all drugs but we also failed to do this systemically or by taking medical opinion into consideration, in fact the British in the 1890’s did a better job the us when they set up the Indian hemp Commision.

BACKGROUND Since 1961, the US has been campaigning for a global law against all drugs, both hard and soft. India objected to this campaign and the draft of single convention which included the seeds and leaves in the definition of cannabis, v due to use of cannabis leaves in making bhang. It was excluded later. Hence, the traditional use of bhang in India could continue. vi In most of the countries consumption of any product made out of cannabis plant is illegal, but Indian law surprisingly allows use of cannabis leaves in preparation of bhang, in fact the government owned and licensed shops sell bhang throughout the country. Large tracts of cannabis grow unchecked in the wild in many states such as West Bengal, Tripura, Andhra Pradesh, Karnataka, Kerala, and Tamil Nadu.vii Moreover, Hashish has been used for medicinal and religious purposes for thousands of years viii and was sold in government shops during the times of the British Raj and in independent India until the 1980’s.ix It is still being sold today. 2.1. HISTORICAL / MEDICAL The use of bhang between the fifth and twelfth century is frequently mentioned in dictionaries, and the names used would seem to show that its use as an intoxicant was then known. In the Rajanighantu of Narahari Paandita, A.D. 1300, the effects of hemp on man are described as excitant, heating, astringent: it destroys phlegm, expels flatulence, induces costiveness, sharpens the memory, and excite appetite. In the Carngadharasamhita, a medical work, the date of which is unknown, but which must

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have been compiled during the Muhammadan period of Indian history, bhang is specially mentioned as an excitant. x In 19th Century clinical trials carried out by physicians on Indian patients at that time showed it to be a" useful anodyne, hypnotic and antispasmodic. According to the Indian Hemp Drug Commission, bhang was considered as a refreshing beverage corresponding to beer in England and moderate indulgence in it was attended with less injurious consequences than similar consumption of alcohol in Europe. xi During the period that followed the report of these early observers, cannabis was used for its analgesic and hypnotic effects in such affections as asthma, neuralgia, tinnitus, dysmenorrhoea, muscular and joint pains, etc. It was also used to relieve the lightning pains of tubes, fornication, numbness, paraesthesia, convulsions, etc. xii Bhang and ganja are prescribed extensively by Hakims and Vaidyas in bowel complaints and are recommended as appetizers, as nervous stimulants and as a source of great staying-power under conditions of severe exertion or fatigue.

xiii

Several recognized medical capabilities of cannabis leaves are: o Pulverized dried leaves are used as snuff "for clearing the brain". o The juice extracted from the leaves is applied to the head to remove dandruff and vermin. o Dropped into the ear it is said to allay pain. o It is also believed to destroy worms. o It checks the discharge from the intestines in diarrhoeal conditions and also the urethral discharge in gonorrhoea. Cannabis preparations are popularly used as household remedies in the treatment of many minor ailments. A mild beverage made from bhang leaves is believed to sharpen the appetite and help the digestion. Religious mendicants who roam throughout India often carry bhang with them and use it for all sorts of

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gastrointestinal and rheumatic troubles from which they frequently suffer on account of exposure to inclement weather.

xiv

2.2. RELIGIOUS Reference to cannabis drugs is found in the classical literature as well as in old medical works of many countries in the world. In Indian literature the earliest reference to the word "bhang" occurs in the Atharva Veda, which, according to western scholars, dates as far back as 2000 to 1400 B.C. Whether the term was used at that time to mean only a particular species of a sacred grass, or the true cannabis plant, is an open question. xv The cannabis plant is regarded by the Hindus as holy, and the origin of this conception can be traced to the Vedic period. In the Atharva Veda, the plant is described as a sacred grass, and the guardian angel of mankind is supposed to reside in its leaves. In Bengal, for instance, the custom still persists among certain classes of offering a beverage prepared from the leaves of the cannabis plant to the various family members and to guests present on the last day of Durga Puja (Vijaya Dasmi) which is the biggest Hindu festival in that state.xvi According to the Indian Hemp Commision, at the Shivratri festival, and on almost all occasions before it, not only that ganja is offered to the god but is also consumed by all classes of the worshippers and these customs are so intimately connected with their worship that they may be considered to form in some sense an integral part of it and there was abundant evidence before the Commission. xvii

SCIENTIFIC DISCUSSION CHEMICAL THEORY/ EFFECTS Tetrahydrocannabinol (THC) is the principal psychoactive constituent of the cannabis plant which has mild to moderate analgesic effects.xviii According to a 2006 UK Government report, using cannabis is much less dangerous than tobacco, prescription drugs, and alcohol in social harms, physical harm, and addiction. xix No

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evidence exists that anyone has ever died of a cannabis overdose. xx The ratio of cannabis material required to produce a fatal overdose to the amount required to saturate cannabinoid receptors and cause intoxication is approximately 40,000:1 xxi whereas for alcohol it is between 4:1 and 10:1. xxii

"There are no deaths from cannabis use. Anywhere. You can't find one," said Dr. Lester Grinspoon, professor emeritus at Harvard Medical School. Believe it: In 10,000 years of known use of cannabis, there's never been a single death attributed to marijuana.xxiii 3.1. EFFECTS According to the Indian Hemp Commission Cannabis doesn’t cause any serious mental or physicals effects: Effects

Opinion on Effects

Physical

The moderate use of hemp drugs appears to cause no physical injury and doesn’t cause irreversible health or social damage even if used on a longterm basis. xxiv

Mental

The moderate use of hemp drugs produces no injurious effects on the mind.xxv

The commission also concluded that: 1. Total prohibition of the cultivation of the hemp plant for narcotics, and of the manufacture, sale, or use of the drugs derived from it, is neither necessary nor expedient in consideration of their ascertained effects, of the prevalence of the habit of using them, of the social and religious feeling on the subject, and of the possibility of its driving the consumers to have recourse to other stimulants or narcotics which may be more deleterious (Chapter XIV, paragraphs 553 to 585).

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2. Bhang is the Joy-giver, the Sky-filler, the Heavenly- Guide, the Poor Man’s Heaven, the Soother of Grief. No god or man is as good as the religious drinker of bhang. The supporting power of bhang has brought many a Hindu family safe through the miseries of famine. To forbid or even seriously restrict the use of so gracious an herb as the hemp would cause widespread suffering and annoyance and to large bands of worshipped ascetics, deep-seated anger. It would rob the people of a solace on discomfort, of a cure in sickness, of a guardian whose gracious protection saves them from the attacks of evil influences.‛ These conclusions not only reiterate that cannabis has no malicious effect on physical and mental health but also point out that how ironic the current situation is that the British Government didn’t attempt any prohibition on the cannabis plant so as not to hurt the sentiments of the Indian people; The plant was later prohibited much later, by our own Indian Government. The Lancet, a respected medical journal, in its November '95 issue commented in an editorial that "smoking of cannabis, even long term, is not harmful to health yet this widely-used substance is illegal just about everywhere." It further went on stating that the new evidence is in fact nothing new and merely confirms the conclusions drawn by the Royal Hemp Commission in 1895 that cannabis products had benign effects and that they caused no irreversible health or social damage even if used on a longterm basis. Reversible intoxication also occurs with cannabis which temporarily affects motor functions. But this also happens with alcohol intake. xxvi This opinion was also quoted in a 1997 AIIMS publicationxxvii Also, talking about the addiction from marijuana Dr R C Jiloha, director and head of psychiatry at G B Pant Hospital and in-charge of de-addiction says: "Very few patients come to us for marijuana de-addiction. The drug is less addictive compared to

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heroine, crack cocaine or even alcohol. It doesn't cause body ache, abdominal pain and other physical symptoms.xxviii 1.2. SOFT DRUG The NDPS Act itself recognizes cannabis as a soft drug. It recommends a lighter sentence for possession of both ganja and hashish compared to the jail term prescribed for violations involving opiate drugs, like heroin and its impure formbrown sugar. While possession of five grams of charas would invite a year's sentence and 500 grams of ganja would put you in jail for six months, a heroin or morphine rap could mean sentences up to 15 years and in severe cases of trafficking, even the death penalty.xxix Various findings been made by organisations and individuals have time and again proved that cannabis is a soft drug, one such finding was made by Devendra Mohan (Head, Department of Psychiatry) at AIIMS who concluded that:

"When compared to alcohol I would say that cannabis is less harmful. It is nonaddictive and less anti-social. With alcohol, crisis behaviour probability is higher and well documented in accidents, domestic violence and sexual crimes. However, you don't associate such behaviour with cannabis abuse We are not saying that you should advertise Indian cannabis as the best in the world on STAR TV. What we are saying is that the Government need not take the view it has taken on a drug which is relatively less harmful and which has been consumed in this country for centuries." xxx The following scientific graphs further support such conclusions including the ones made by the Indian Hemp Commission and various other medical and legislative authorities that cannabis has moderate mental and physical effects, has very low dependence probability, and definitely is less harmful than tobacco and alcohol which still remain the most abused psychoactive drugs in the world.

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GRAPH 1

xxxi

GRAPH 2

xxxii

These graphs show that how marijuana ranks only moderate/low in dependence potential, also it is almost negligible in lethal dose, which ironically in turn is much Page | 147

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less than caffeine, alcohol and various other widely used psychoactive drugs and is lesser than alcohol and tobacco in physical harm.

PROPOSED POLICY CHANGE Taking into perspective the legislative, religious, social and spiritual history of cannabis, along with its widespread use in the country, there is a need to change the current policy i.e. to decriminalize the use cannabis in India. Decriminalisation is often mistakenly understood to mean complete removal or abolition of possession offences, or confused with ‘legalisation’ (legal regulation of drug production and availability). Under decriminalisation regimes, possession and use of small amounts of drugs are still unlawful but not criminal offences. xxxiii While many people within the government fear about the negative impact of such a policy change, the evidence and data collected by various governmental and nongovernmental organisations indicates otherwise and that any such fear is based in prejudice. Countries like Portugal and Spain have successfully decriminalised possession of small amounts of some drugsxxxiv.The following figure and table shows why and how this policy should be implemented. It also provides some justifications to such a policy.

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FIGURE 1

Non-criminal sanctions in different jurisdictions include: fines, community service orders, warnings, mandatory treatment or education sessions, driver’s or professional licence suspensions, travel bans, property confiscation, associational bans, mandatory reporting, mandatory drug testing, termination of public benefits, administrative arrest, or no penalty at all community-based treatment, education, aftercare, rehabilitation and social integration represent a more effective and proportionate alternative to conviction and punishment, including detention. xxxv

JUSTIFICATIONS TO THE PROSPOSED POLICY Since policy makers might argue that decriminalization might have negative effect on the society there are few justifications as to the positive effects of decriminalization of cannabis.  Usage: The Netherlands' drug policy is one of the most nonpunitive in Europe. For more than twenty years, Dutch citizens over age eighteen have been permitted to buy and use cannabis (marijuana and hashish) in government-regulated coffee shops. This policy has not resulted in dramatically escalating marijuana use. For most age groups, rates of marijuana use in the Netherlands are similar to those in Page | 149

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the United States. However, for young adolescents, rates of marijuana use are lower in the Netherlands than in the United States. The Dutch government occasionally revises

existing

marijuana

policy,

but

remains

committed

decriminalization xxxvi .Therefore decriminalization does not necessarily lead to increased use.xxxvii

ď&#x201A;ˇ Incarceration costs: These costs are incurred to keep a person confined in prison. A US report says that costs for cannabis enforcement are the highest at $328 per user while for alcohol it is $153 xxxviii. In 1997 Judiciary Committee of the Connecticut General Assembly in its report emphasized that drug policies relying heavily on penal sanctions and incarceration are costly and fail to address the social and public health aspects of substance abuse. Criminal laws should be administered in concert with treatment and other social and public health initiatives. They also mentioned that such a policy change will drastically reduce drug related incarceration costs. xxxix

ď&#x201A;ˇ Consumption and Cost: Decriminalization does not result necessarily lead to lower prices and higher consumption rates. xl It also saves a tremendous amount in enforcement costs. California saved an estimated $857 million in 2006 alone. xli Also, most cannabis users never use any other illicit drugxlii. As regards measures against trafficking in drugs and precursors, under the current policy India will use satellite imagery to detect and eradicate illicit cultivation of opium poppy and cannabis plant. The Government of India is pursuing a sustained effort to reduce the level of illicit cultivation of cannabis plant in the country. In 2010, the estimated area under illicit cultivation was 552 ha, following the eradication of 681 ha of illicitly cultivated cannabis plant during the course of that year. A further 1,114 ha were eradicated in 2011. Cannabis is the most abused drug in India, followed by opium. No matter how much money or technology the government might put in, it seems highly illogical and

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extremely costly to eradicate a naturally growing plant which despite a legal ban has widespread use in the country xliii and has been used for past thousands of years and now has become a part of the culture and everyday lives. Most people don't like calling bhang an intoxicant but a prasad (holy offering) of Lord Shiva."Don't call it nasha (intoxicant). It is the prasad of Lord Shiva, " said Radhey Lal, in his late 60s, cradling a glass of bhang’s thandai in his hand. "We do not drink alcohol. All we take is bhang, which we consider as prasad," said Krishna, who is in his early 30s. There are around 785 government-licensed bhang shops in the state of Rajasthan alone which sell around 400 quintals of bhang in a year. xliv One can only imagine the widespread reach cannabis has in this country. This policy option will decriminalize drug cultivation, possession, trade and consumption of drugs made from Cannabis Plant in small quantities (the word small quantities means quantity meant for personal use as mentioned under the NDPS Act, which has classified offences into two types i.e. small quantities and large quantities) therefore focusing on improvement of those who are consuming it rather than punishing them, as the latter as neither helped in reduction in the usage nor has had any effect on the society at large.

CONCLUSION AND RECOMMENDATIONS Clearly there is a gap between the legislators and the public. Where on the one hand the government plans to use satellite imagery to eradicate illicit cultivation of cannabis plant and on the other hand cannabis is the most abused drug in India, proven by the fact that among those treated for drug problems in India in 2010, 22 per cent abused cannabis.xlv In a decriminalized framework, the law continues to prohibit drug usage, but it’s completely removed from the criminal sphere, so that if one violates that prohibition or do the activity that the law says one cannot do they’re no longer committing a crime. One cannot be turned into a criminal by the state. Instead, it’s deemed to be an Page | 151

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administrative offense only, and they’re put into an administrative proceeding rather than a criminal proceeding. Therefore the proposed policy change is recommended and should be implemented by making major modifications in the NDPS Act as well as state drug laws. Section 8, Section 10 and Section 20 of the Act which talks about punishment for contravention in relation to cannabis plant and cannabis need a major amendment. Use of community punishments rather than imprisonment for most drug dependent offenders should be the object of the modified law. xlvi The new strategy and legislation should be based on the fundamental notion of ‚fighting the disease, not the patients‛. Maximising the use and cost effectiveness of community sentences is likely to be more beneficial than imprisoning problem drug-using offenders.xlvii The strategy and actions could be based on Portuguese model which comprises of necessary preventive and educational activities and steps which should be taken in order to improve treatment programs. xlviii Under the new decriminalization law, drug users identified by law enforcement agencies are referred to the Drug Addiction Review Judge(DARJ), equivalent to Judicial Magistrate First Class (JMFC) who will asses users and decide the most appropriate sanction and referral to educational or treatment programs. If a person fails to attend the proceedings under DARJ, an administrative sanction may be applied such as a fine, revocation of a driving license, community service, xlix travel bans, property confiscation and rehabilitation. l According to UK Drug Commision, imprisonment is more likely to entrench some problems for the offender and their family, rather than solve them.li There must be a reasonable ground in creating a law, and a proportionate ability to enforce it. One without the other renders the law untenable as is the case in India. Legislating for the sake of legislating or to impose a viewpoint on the people is both

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tedious and expensive. Therefore, decriminalizing the use of small quantities of products made from Cannabis Plant is recommended and hence submitted.

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Francis Young, DEA Administrative Law Judge

Pillai A. & Menezes S. (Aug 28, 1996) Case for Cannabis: A national workshop recommends

legalisation of soft drugs. Outlook Magazine. Retrieved from: http://www.outlookindia.com/article.aspx?202017 iii

Ibid 2

The Joint Campaign, Should we not legalize recreational use of Cannabis? Times of India, TNN

Retrieved from:http://timesofindia.indiatimes.com/the-joint-campaign-should-we-not-legalizerecreational-use-of-cannabis/eventcoverage/17167279.cms; Mehrotra P.K. (Sept 7, 2013) Now that America is changing its mind on cannabis its time for India to do the same. Daily Mail. Retrieved from: http://www.dailymail.co.uk/indiahome/article-2415127/Now-America-changing-mind-cannabistime-India-same.html v

Single Convention on Narcotic Drugs, 1961 (As amended by the 1972 Protocol amending the Single

Convention on Narcotic Drugs, 1961), 18 UST 1407, United Nations, UNODC Retrieved from: www.unodc.org/pdf/convention_1961_en.pdf vi

Jelsma M. (24-25 January 2011) The Development of international drug control: Lessons learned and

strategic challenges for the future. Global Commision on Drug Policies, Geneva Retrieved from: www.globalcommissionondrugs.org/.../Global_Com_Martin_Jelsma.pdf vii

Narcotics Control Bureau, Ministry of Home Affairs, Government of India (2011) Annual Report,

2011. Retrieved from: www.narcoticsindia.nic.in/ANNUAL%20REPORT%202011.pdf; Chalabi M. (Aug 22, 2013) Price of marijuana worldwide. The Guardian Retrieved from: http://www.theguardian.com/news/datablog/interactive/2013/aug/02/marijuana-world-retail-wholesaleprice-interactive-map?commentpage=1 viii

If Drugs Were Legal, Scarlett Might Be Alive. The Times of India, TNN (March 14, 2008.) Retrieved

from: http://timesofindia.indiatimes.com/home/opinion/jug-suraiya/second-opinion/If-drugs-were-legalScarlett-might-be-alive/articleshow/2863581.cms ix

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1894, 7 vols. Chapter XIV. The policy of hemp drug administration. (1893–94) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf x

Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,

1894, 7 volumes, (1893–94) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf Page | 153

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Chopra I. C., Chopra R. N. () The Use of the Cannabis Drugs in India, UNODC. Retrieved from:

http://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1957-01-01_1_page003.html# xii

Ibid 10

xiii

Ibid 11

xiv

Ibid 12

Ibid 13

xvi

Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,

1894, 7 vols. Chapter ix para 433 (1893–94) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf xvii

Ibid 15

xviii

Elphick, M. R. & Egertova, M. (2001) The neurobiology and evolution of cannabinoid signalling.

Philosophical Transactions of the Royal Society B: Biological Sciences 356 (1407) p. 381–408 Retrieved from: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1088434/ xix

Drug classification: making a hash of it? Fifth Report of Session, House of Commons Science and

Grinspoon L. (1971) Marihuana Reconsidered, Harvard University Press, 1971. p. 53 – 54; Grinspoon,

L. (Sept 23, 2012), Grinspoon: Marijuana is here to stay, The Metro West Daily News. Retrieved from: http://www.metrowestdailynes.com/opinion/x422896402/Grinspoon-Marijuana-Is-Here-to-Stay; Smith D. (Aug 08, 2012) Medical marijuana: 10 health benefits that legitimize legalization, IBTIMES. Retrieved from: http://www.ibtimes.com/%E2%80%98medical%E2%80%99-marijuana-10-healthbenefits-legitimize-legalization-742456; Mortality data from the Drug Abuse Warning Network. The Substance Abuse and Mental Health Services Administration's (SAMHSA) (2003); Geller T., Loftis L., Brink D. (2004) Cerebellar Infarction in Adolescent Males Associated with Acute marijuana use. xxi

Mikuriya, T.H. (1969) Historical Aspects of Cannabis Sativa in Western Medicine, New Physician, p.

905. xxii

Grinspoon L. (1971) Marihuana Reconsidered, Harvard University Press, 1971. p. 53 – 54

xxiii

Smith D. (Aug 08, 2012) Medical marijuana: 10 health benefits that legitimize legalization,

IBTIMES. Retrieved from: http://www.ibtimes.com/%E2%80%98medical%E2%80%99-marijuana-10health-benefits-legitimize-legalization-742456 xxiv

Supra 2; Report of the Indian hemp Drugs Commission, Shimla, India, Government Central

Printing House, 1894, 7 vols. Chapter xiii. Effects—Moral: General summary of conclusions. p. 264, para. 552 (1893–94) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf

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xxv

Report of the Indian hemp Drugs Commission, Shimla, India, Government Central Printing House,

1894, 7 vols. Chapter xiii. Effects—Moral: General summary of conclusions. p. 264, para. 552 (1893–94) Retrieved from: www.druglibrary.eu/library/reports/indianhemp.pdf xxvi

Pillai A. & Menezes S. (Aug 28, 1996) Case for Cannabis: A national workshop recommends

legalisation of soft drugs. Outlook Magazine. Retrieved from: http://www.outlookindia.com/article.aspx?202017 xxvii

Durgesh J.N. (Nov 10, 2012) Hope for dope: Alcoholics face a greater risk than marijuana users,

doctors insist, Times of India, TNN. Retrieved from: http://articles.timesofindia.indiatimes.com/201211-10/india/35033863_1_recreational-marijuana-ban-cannabis-addiction xxviii

Ibid 26

xxix

Supra 2

xxx

Supra 2

xxxi

Gable R.S. (2006) The Toxicity of Recreational Drugs, American Scientist, The Scientific Research

Society, American Scientist xxxii

Drug classification: making a hash of it? Fifth Report of Session, House of Commons Science and

Technology Committee, UK government report. HC 1031 (July 18, 2006) Retrieved from: http://www.parliament.uk/business/committees/committees-a-z/lords-select/science-and-technologycommittee/publications/; Nutt D., Leslie A.K., Saulsbury W., Blakemore C. (March 24, 2007) Development of a rational scale to assess the harm of drugs of potential misuse, The Lancet 2007 xxxiii

Rolles S (2009) After the War on Drugs: Blueprint for Regulation. Bristol: Transform Drug Policy

Foundation. xxxiv

Stephen R. (2009), After the War on Drugs: Blueprint for Regulation, Transform Drug Policy

Foundation, ISBN: 978-0-9556428-1-4, p. 214 xxxv

UN Office on Drugs and Crime (UNODC) (2012) UNODC and the protection and promotion of

human rights. Vienna: UNODC, http://www.unodc.org/documents/justice-and-prisonreform/UNODC_HR_position_paper.pdf xxxvi

Fromberg, E. (1994) The Case of the Netherlands: Contradictions and Values in Questioning

Prohibition, 1994 International Report on Drugs, Brussels, International Antiprohibitionist League. p. 113-124.; Sandwijk, J.P., et al. (1995) Licit and Illicit Drug Use in Amsterdam II, University of Amsterdam, Amsterdam. Retrieved from: www.cedro-uva.org/lib/sandwijk.prvasd94.13.pdf; Gunning, K.F. (1993) Crime Rate and Drug Use in Holland. Rotterdam, Dutch National Committee on Drug Prevention. xxxvii

World Drug Report (2012), UNODC, United Nations publication, Sales No. E.12.XI.1. Retrieved

from: http http://www.unodc.org/unodc/en/data-and-analysis/WDR-2012.html; Maccoun R. & Reuter R.

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(February 2001) Evaluating alternative cannabis regimes, British Journal of Psychiatry, October 2013, Issue 4, Volume 203 Retrieved from: http://bjp.rcpsych.org/content/178/2/123.full; Single E. The impact of marijuana decriminalisation: An update, Journal of Public Health Policy, 1989; 10: 456-66. Retrieved from: http://bjp.rcpsych.org/content/178/2/123.full. xxxviii

Thomas G. & Davis C (2009), Cannabis, Issue of Visions Journal, 5 (4), p. 1 Retrieved from:

www.heretohelp.bc.ca/visions/cannabis-vol5/cannabis-tobacco-and-alcohol-use-in-canada xxxix

Drug Policy in Connecticut and Strategy Options (1997), Report to the Judiciary Committee of the

Connecticut General Assembly, Connecticut Law Review Commission. Retrieved from: http://www.cga.ct.gov/lrc/drugpolicy/DrugPolicyRpt1.htm xl

Gable, R. S. (2006). Acute toxicity of drugs versus regulatory status., J. M. Fish (Ed.), Drugs and

Society: U.S. Public Policy, pp.149-162.; Reinarman, C., Cohen, P. and Kaal, H. (2004) The Limited

Relevance of Drug Policy: Cannabis in Amsterdam and in San Francisco, American Journal of Public Health vol. 94 pp.836–842 xli

Gettman, J. ‚Marijuana Arrests in the United States (2007),‛ The Bulletin of Cannabis Reform,

November 2009 xlii

Morral A.R., McCaffrey, Daniel F. and Susan P.M. (2002), Reassessing the marijuana gateway effect,

Addiction.1493-504 xliii

The Joint Campaign, Should we not legalize recreational use of Cannabis? Times of India, TNN

Retrieved from: http://timesofindia.indiatimes.com/the-joint-campaign-should-we-not-legalizerecreational-use-of-cannabis/eventcoverage/17167279.cms xliv

Sharma Anil, Starting the day with the cup that kicks, Hindustan Times, IANS, Retrieved from:

http://www.hindustantimes.com/india-news/starting-the-day-with-the-cup-that-kicks/article1255630.aspx xlv

Report of the International Narcotics Control Board for 2012,(2012) E/INCB/2012/1, United Nations

Publication, ISBN: 978-92-1-148270-6 Retrieved from: incb.org/documents/Publications/AnnualReports/AR2012/AR_2012_E.pdf; Chopra I. C., Chopra R. N. () The Use of the Cannabis Drugs in India, UNODC. Retrieved from: http://www.unodc.org/unodc/en/data-and-analysis/bulletin/bulletin_1957-01-01_1_page003.html# xlvi

Domosławski A.(June 2011) Drug Policy in Portugal: The Benefits of Decriminalizing Drug Use,

Global Drug Policy Program, Open Society Foundations Retrieved from: http://reformdrugpolicy.com/wp-content/uploads/2011/09/drug-policy-in-portugal-20110829.pdf. xlvii

A fresh approach to drugs (October 2012), The final report of the UK Drug Policy Commission.,

ISBN: 978-1-906246-41-9 Retrieved from:

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http://www.equalitytrust.org.uk/sites/default/files/attachments/resources/UKDPC%20%20A%20Fresh% 20Approach%20to%20Drugs%20-%20EMBARGOED-1.pdf xlviii

DomosĹ&#x201A;awski A.(June 2011) Drug Policy in Portugal: The Benefits of Decriminalizing Drug Use,

Global Drug Policy Program, Open Society Foundations Retrieved from: http://reformdrugpolicy.com/wp-content/uploads/2011/09/drug-policy-in-portugal-20110829.pdf. xlix

Report of the International Narcotics Control Board for 2012,(2012) E/INCB/2012/1, United Nations

UNODC and the protection and promotion of human rights (2012), UN Office on Drugs and Crime

(UNODC) Vienna. Retrieved from: http://www.unodc.org/documents/justice-and-prisonreform/UNODC_Human_rights_position_paper_2012.pdf li

A fresh approach to drugs (October 2012), The final report of the UK Drug Policy Commission.,

ISBN: 978-1-906246-41-9 Retrieved from: http://www.equalitytrust.org.uk/sites/default/files/attachments/resources/UKDPC%20%20A%20Fresh%20Approach%20to%20Drugs%20-%20EMBARGOED-1.pdf.

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COST OF CORRECTING CORRUPTIONDOES CANCELLING 2G LICENSES CONSTITUTE EXPROPRIATION ACTIONABLE UNDER INTERNATIONAL INVESTMENT LAW? SHUBHANGI ABSTRACT While the Supreme Courtâ&#x20AC;&#x2122;s decision in the case of Centre for Public Interest Litigation v. Union of India cancelling the 122 fraudulently issued 2G licences was considered by many as upholding the constitutional fundamentals of equality and equanimity, it has exposed the Indian government to actions under international investment arbitration for disregarding the very same principle of parity in context of their commitment to international trade. The principle of international law on which such a claim will be based is failure of the Indian government to meet the necessary preconditions to invoking its right of expropriation through the above mentioned judgment. There was much speculation in the arbitration academia about the possibility of the same. Like all premonitions bad, it did come true with big conglomerates like Systemia Ltd. and Khaitan Pvt. Ltd. issuing notices of arbitration against the Indian government. Not surprisingly, the grounds for requesting such arbitration was unwillingness of the Indian Government to compensate the claimant for the losses arising out of its act of expropriation stemming from the SC judgment. The tribunals would have to delve into the complex yet frequently visited conundrum of balancing the sovereign rights of a nation to Page | 158

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regulate against the need of investor protection in international investment law. The article attempts to provide one of the first holistic picture of the possible jurisprudential arguments raised and the subsequent rebuttals that might follow in these arbitration proceedings.

INTRODUCTION The 2G license scam is considered to be one of the many reasons for the potential undoing of the 10 year long UPA government in India. Summarily, the dispute revolves around the cancellation of the 2G licenses which were issued by the Department of Telecommunications, Government of India by the Supreme Court after intensive investigation carried out by the Central Bureau of India and much public outcry. This judicial conclusion of cancelling 122 licenses was arrived at through the Supreme Court judgment in the case of Centre for Public Interest

Litigation v. Union of India i. These licenses were issued in 2007-08. Post acquiring such licenses, many of the domestic companies entered into joint ventures with foreign companies and received investments from abroad each of which was governed under separate but similar Bilateral Trade Agreements. For the reference of this article, we could consider the BIPA (Bilateral Investment Promotion and Protection Agreement) under which Khaitan Holdings Ltd, the majority holder in the Indian telecommunications Co. of Loop Telecommunications, has filed the present notice of arbitration. ii Article 6(1) of the Agreement states herein: ‚Investments of investors of either Contracting Party in the

territory of the other Contracting Party shall not be nationalised, expropriated or subjected to measures having effects equivalent to nationalisation except for public purposes under due process of law, on a non-discriminatory basis and against fair and equitable compensation.‛iii

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This is considered to be a wide expropriation clause in an investment treaty iv considering it includes the terminology ‚measures having effects equivalent to

expropriation‛.v Fair and equitable compensation under the international investment law becomes due to the investor if the host country: 1. Expropriates or nationalises or takes any such measure which has the same effect as nationalisation or expropriation on the investment of the foreign investor. 2. For a public purpose 3. Under due process of law 4. On a non-discriminatory basis The last three criteria laid down determine the legality of the act/regulation of the host country. The legality of the act determines the quantum of compensation where the award would be relatively higher if the same is found to be illegal.vi However, the issue that needs to primarily be determined is whether the regulation or law was an expropriation or not. Therefore, for the claimants to successfully mount a case against the Government of India, they need to establish that the cancelling of the licenses was indeed an act of expropriation or one which had the same effect as that of expropriation. A leading expert on international law had made an observation which is so unnervingly true today that one might as well refer to it as a prophecy; he had said that much literature and research would go into providing the paradigm that means expropriation in International Law and yet there would be little clarity on the subject. vii Truthfully enough, the author submits that disputes after disputes have deliberated on the issue and none have ended with an exhaustive definition of exactly what constitutes an expropriation. To attempt to describe or comment exhaustively on a matter which has eluded the smartest and the most knowledgeable of authors and jurists in the field of international law would be a mountain too high to scale in mere ten pages. This article would therefore refrain from commenting on the issue as a whole and deal exclusively with the issue in hand – whether the cancellation of the 2g licenses

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constitutes expropriation as defined by the existing jurisprudence on the matter and whether an obligation to compensate arises. There exists no debate that: 1. Investing in a domestic company of the host state constitutes an investment covered under a Bilateral Treaty Agreement. viii 2. Expropriation can be of intangible assets or property rights as well, thereby ensuring that licenses be considered assets which can be expropriated. ix Based on the premise that neither of the above is contested by either parties to the arbitration, the possible legal grounds that the parties might resort to in order to prove the existence or the non-existence, respectively, of expropriation has been dealt with in the following sections.

CALCULATING THE LOSS: CLAIMANT’S APPROACH Expropriation is an expansive term which has over the years been inferred and interpreted in an extensive manner. It originated initially as a safeguard against the ‚nationalisation drives‛ of the then conservative governments.

But as the

international law became more sophisticated and the nations became smarter mavericks, it had to be interpreted widely to include indirect xi , creeping xii and regulatory acts

xiii

of the government which had ‚an effect equivalent to

expropriation‛. The line of argument that the claimant is likely to rely on is the ‚sole effect doctrine‛ evolved over the years through tribunal decisions like that of Tippetsxiv, Metacladxv,

Phelpps Dodgexvi etc. The ‚sole effect‛ doctrine considers the economic effect of the government action/inaction on the investment as the sole criterion in determining whether there exists an obligation to compensate the investor. If the tribunal accepts the jurisprudence evolved though tribunal decisions like those stated above as the litmus test to decide if expropriation exists then the claimant has to simply establish that the cancellation of licenses was a government action that resulted in a considerable economic loss to the investor. What exactly the claimants have to

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establish is the existence of ‚wealth deprivation‛xvii by the government of the host state without due compensation. xviii It would not be surprising if the opening arguments of the claimants quoted the popular judgment in the case of Tippets case:

‚The intent of the government is less important than the effects of the measures on the owner, and the form of the measures of control or interference is less important than the reality of their impact.‛ xix

There exists jurisprudence favouring an international regime which emphasizes on the protection of the investor’s economic interest over any other externalities which includes the good intentions of the host government. In the case of the Phelps Dodge

International Corp v. Islamic Republic of Iranxx, the tribunal went to the extent of acknowledging the need for the challenged law in light of the national interest of Iran and still ordered the respondents (Iran) to compensate the claimant. Similarly, host states had to compensate the investor even when the contested regulations that were giving rise to expropriation were enacted or implemented with an intention to protect the environment against the blatantly environment harming activities of the investor in Metaclad casexxi and that of Santa Elena v. Costa Ricaxxii. Through undertaking this extensive exercise in pointing towards this school of investment law, the claimants would attempt to influence the tribunal’s method of arriving at the conclusion of whether an expropriation exists in this particular case. If the tribunal was to accept this sole effect doctrine then the claimants would have successfully vitiated any need of entering into the raison d'être of the Indian SC judgment. This would be an important coup for the counsel of the claimants as now all they have to establish is that the cancelling of the license resulted in an economic loss to their client. The next step in their argument would be to establish an economic loss or wealth deprivation. The claimants are bound to argue that in the present case a compulsory and direct transfer of property rights to the government has taken place as a result of

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the judgment given by the Supreme Court of India. In Tecmed v. Mexico xxiii , an ICSID panel held that a failure of renewal of a land license was considered an act of expropriation to be compensated by the host state of Mexico. The claimant is likely to draw parallel to the above case law and suggest that the Indian judiciary’s action should be considered an act of expropriation even more direct than that of the Government of Mexico. Similar jurisprudence which could perhaps be relied on during the course of their argument would be the case of CME v. Czech Republicxxiv. The dispute in the CME casexxv is perhaps going to be more relevant than the one cited previously as it was contested in the case that the Media Council, a statutory authority, had reversed its original position thereby forcing the local partner of the investor to agree to amendments which significantly reduced the value of the investment.

xxvi

The

argument was held to be a valid one and gave a right of compensation to the investor. The tribunal reasoned that the expropriation of the investment was a direct consequence of the ‚actions and inactions of the government‛ and that there ‚was no immediate prospect at hand that the joint venture will be reinstated in a position to enjoy an exclusive use of license‛.xxvii Finally, the concluding argument of the claimants with respect to the claim of expropriation could be that this act of the Indian judiciary is against the legitimate expectation that the investors had when investing in the joint ventures. In international investment law, the interests of the foreign investor are protected against unreasonable and unexpected change in policy of the government. Though in most cases a successful claim of violating legitimate expectation requires specific commitment of the government to the investor which had a pivotal role in the investor’s decision to invest in the host nation xxviii , where exclusive licenses were granted, the expectation that the same would continue to exist can be considered a legitimate expectation of the investor even if no specific commitment was made.xxix Relying on the Thunderbird casexxx, the claimant is likely to claim that assuming that the issuing authority of the host state is competent is in fact one of the most

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rudimentary of all expectations that an investor can have.xxxi The obligation of the host state to meet the legitimate expectation goes beyond the possible prejudice that the implementation of the expectation could have against the nation’s interest. This line of argument was accepted in the case of MTD Chile v. State of Chilexxxii and the

Tecmedxxxiii case. Every time an investor’s expectation of consistency and stability it opens the host state for a claim for restitution or compensation in investment law. Drawing from these established precedents on the matter, the claimants are likely to argue that the cancellation of the license constitutes a denial of its legitimate expectation on the continuation of its rights as a license holder as well as amounts to expropriation under international investment law. If these arguments leave us wondering if there, at all, exists another side to the story, it will imply that the claimant’s council has done a job well. But there is always two sides of a story and the government of India would most definitely have employed an equally eager, if not more so, legal team to present its side.

FOR THE GREATER GOOD: THE R ESPONDENT’S APPROACH As respondents the task of the counsel representing the Government of India in these arbitration proceedings need not be to out rightly deny that the judgment adversely affects the investors. If proved that the judgment falls within the category of state regulations which are equitable, reasonable, non-discriminatory and a necessity for the public interest of the country then there arises no need to compensate the loss which the claimant incidentally suffers in the process. State measures which are, prima facie, in legal exercise of its power do not necessarily give rise to an obligation to compensate even if implementation of such measures will cause considerable economic loss to the investor. xxxiv The tribunals have also recognised this as the effective law. In this respect, the respondents will be wise to quote the extremely apt and astute observation made by the tribunal in the Saluka casexxxv which reads as follows:

‚[i]t is now established in international law that States are not liable to pay compensation to a foreign investor when, in the normal exercise Page | 164

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of their regulatory powers, they adopt in a non-discriminatory manner bona fide regulations that are aimed at the general welfare.‛xxxvi Similar opinion was reiterated in the tribunal decision of Methanex v. USA where it was held that bona fide measures of the government which are enacted or come into being after due process of law and are not discriminatory do not give rise to any obligation to compensate an investor.xxxvii To refuse a state its sovereign right to alter its policies merely because the same is adverse to the interest of a handful of foreign investors is attacking the most revered auspice of international law- that of self-governance. Therefore, while evolving the jurisprudence on expropriation the jurists actively ensured that the state’s right to rule for the benefit of national interest was not curtailed unnecessarily or in entirety. It has been recognised by various tribunal decisions that a measure enforced in order to promote established principles of social welfare need not create an expropriation as the same is within the absolute right of the state to govern on. xxxviii There exist legislation and international documents that provide illustrations of those acts of the state which are widely accepted as within the purview of its police powers. A possible, though non exhaustive, list of such powers is provide in the Restatement (Third) of Foreign Relations Law of the United States xxxix. ‚It includes bona fide general taxation, regulations, forfeiture for crime or any such action of the kind which is commonly accepted as within the police powers of the state.‛xl In CPIL v. Union of India xli, the Supreme Court has ruled that the procedure involved in the granting of the 2G licenses are arbitrary, discriminatory and therefore violates the fundamental right of equality xlii guaranteed by the Indian Constitution. There exists no role of the state which could overshadow its paramount role of upholding the nation’s constitution. This ensures that any measure taken in pursuance of this cannot give rise to expropriation that needs to be compensated under the international investment law.

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The respondents are likely to highlight that segment of jurisprudence on expropriation which focuses on the purpose and nature of the measure as being the important criterion for determining whether an economic loss of an investor comes within the purview of expropriation. It is likely to highlight the recent tribunal decisions which indicate that for a claim of expropriation to be successful, the claimants have to establish that 1) there is an enrichment of the host state at the cost of the investorxliii 2) a deliberate targeting of the investor xliv and most importantly 3) lack of a proportional overriding public interest for which the measure was enacted or enforced xlv . Not every economic loss of an investor can be considered a masquerading expropriation; especially when domestic investors are facing similar losses.xlvi As far as the argument of legitimate expectation is concerned, it neednâ&#x20AC;&#x2122;t necessarily act against the interests of the respondent in this particular case. A legitimate expectation on behalf of the investor includes a legitimate expectation and acceptance of possible risks that might arise in doing business in another nation; these risks are considerably higher when the sector in which the investment is made is as heavily regulated as the Indian telecom sector. To assume that a license fraudulently and arbitrarily granted will not be revoked and if revoked be compensated is a far-fetched as well as an unreasonable expectation. In Starett

Housing v. Iranxlvii, the tribunal considered even a possible revolution to be within the ambit of risks that a business has to undertake when investing in the nation. Clearly, the upturning of an administrative action as being contrary to the Constitution by the judiciary in a country plagued by corruption and one with a pro-active judiciary has greater likelihood of happening than a revolution. The respondent is likely to contest that if the latter is a reasonable risk that an investor is expected to agree to then it is absurd to argue that judicial activism and corrective justice do not fall within the ambit of potential risks that a host state need not compensate an investor for.

THE AMALGAMATING APPROACH AND A WARNING: THE POSSIBLE CONCLUSION Page | 166

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A tribunal while arriving at its decision needs to piece together not only the two sides of the dispute but also include that segment of the jurisprudence which was cleverly whitewashed by the competent counsels of either or both parties. In the present dispute as well, the tribunal need not necessarily follow either of the two doctrines enunciated by both parties and instead seek parity by combining the two. The concept of proportionality between the purpose of the regulation and the extent of the economic loss of the investor already exists in the legal landscape though not as clearly evolved. The tribunal in Tecmed v. Mexico xlviii rightly reasoned:

‚[t]here must be a reasonable relationship of proportionality between the charge or weight imposed to the foreign investor and the aim sought to be realized by any expropriatory measure.‛xlix As far back as 1962, Proffessor Christie had considered even severe government measures, which if undertaken for just as fundamental a public purpose, to not be considered an expropriation that should be compensated. l The wide acceptance of this test in the international forum can also be adjudged by the fact that many Bilateral Agreements that have been entered into in the past decade explicitly exclude a measure designed to protect legitimate public welfare from within the purview compensable expropriation.li Some of the earliest and most vehement supporters of this test are the European Courts while ruling under the European Charter of Human Rights. In the case of

James v. United Kingdomlii, the Court considered the taking of property from one as a necessary evil if the same was done for the purpose of greater social justice. Similarly in Sporrong and Lönnroth v. Swedenliii, the court recognised ‚that the States

are entitled, amongst other things, to control the use of property in accordance with the general interest, by enforcing such laws as they deem necessary for the purpose.‛liv Authoritative authors of investment law like the revered Sonarajah have also recognised the need to combine the two approaches to arrive at a more weathered and tempered test to determine expropriation.lv

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The most logical approach to reconcile the two opposite spectrums would be to follow a test that determines whether the degree of adverse effect of the measure on the investment was justified in light of the public purpose that the measure intended to serve. Accountability is the cornerstone of a constitutional democracy like that of India. Any measure taken to achieve the same cannot be restrained on account of the possible conflict with the profit expectancy that a foreign investor might have had from investing in the country. In light of the new wave of ‚people initiated justice‛ that the world is witnessing today, there is a greater possibility that the tribunal would sympathise with the mitigating circumstances that culminated into the disputed SC judgment. Under important element that enables a better insight into the commitment of the investors in pursuing business with India is the fact that they refused to participate in the new allocation of licenses that was initiated by the Telecom Department. This non participation was despite the fact that the Government of India had reassured that the outstanding losses of the successful candidates would be balanced out against any future payments that they would have had to make after getting their licenses. Quite a few foreign investors and their home countries have threatened to revert to the international forum for compensation of their losses. The strongest in expressing their opinions from the very beginning were Russia and Norway with the Russian conglomerate Systema already having served a Notice of Arbitration.

lvi

The

government is worried of the possible costs that the exchequer would have to incur were these claims to be awarded in favour of the many claimants. If a single of these arbitration are ruled in favour of the claimant, it will create a domino effect where most foreign investors would employ the international dispute redressal mechanism to be compensated for any economic loss that they might have incurred. This also highlights another trouble that has been simmering under the surface for the Indian government for a long time– the repercussions of hurriedly executed and ill-thought-of Bilateral Trade Agreements that the country has been committing to

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over the past decade. In its enthusiasm to prove its credibility as an investor friendly country, India has entered into more than 74 BITs with negotiations underway for another 22. lvii Perhaps it is time to improve the negotiations to an extent and deliberate on including such clauses which provide greater flexibility to the Indian state to legislate and rule on policy matters important to public welfare without making it vulnerable to possible investment litigations. A caged bird is often the imagery that the romantics associate with India. We were under foreign rule for a century to be followed with another long term enslaved to our own corrupt politicians. As India awakens to a more conscious future, it is important that we should not be enslaved and wrapped in arbitrations and litigations for the coming decades merely because of our eagerness to establish ourselves as a sought after investment destination. The 2G scam has acted as an effective eye opener to the pathetic condition of the domestic Indian polity. It might as well ignite a debate on Indiaâ&#x20AC;&#x2122;s approach to its bilateral trade and prevent India from being held at the figurative gun point of possible costly arbitrations by foreign investors in the future.

REFERENCES i

2011(2)ACR1912(SC)

Nanthan and Prasad, Loop Telecom investor KHML slaps $1.4bn notice on government, Economic

Times, Oct 2, 2013, http://articles.economictimes.indiatimes.com/2013-10-02/news/42617622_1_khmlloop-telecom-arbitration-notice iii

Bilateral Invetment Promotion and Protection Agreement, Ind-Mauritius, Article 6.

Sylva and Pye, Expropriation clauses in International Investment Agreements and an appropriate

room for host states to enact regulations: a practical guide for states and investors, The Graduate Institute,

Geneva,

http://graduateinstitute.ch/files/live/sites/iheid/files/sites/ctei/shared/CTEI/Research%20Projects/Trade %20Law%20Clinic/Expropriation%20clauses%20in%20International%20Investment%20Agreements% 20and%20the%20appropriate%20room%20for%20host%20States%20to%20enact%20regulations,%202 009.pdf v

Ibid.

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Andrew Newcombe and Lluís Paradell , Law and Practice of Investment Treaties: Standards of

Treatment, (Kluwer Law International 2009) pp. 394 vii

Fortier and Drymer, Indirect Expropriation in the Law of International Investment: I Know It When

I See It, or Caveat Investor, 19(2) ICSID Review 293 (2004) viii ix x

I. Brownlie, Priniciples of Public International Law, 534 (5 th ed., 1998)

M. SORANARAJAH, T HE INTERNATIONAL L AW ON FOREIGN INVESTMENT, 7 (2ND ED, 2004)

SUPRA N. 6, P. 3.

P. MUCHLINSKI, F. O RTINO & C. SCHREUER (EDS.), T HE O XFORD HANDBOOK OF INTERNATIONAL

INVESTMENT L AW , O XFORD UNIVERSITY PRESS, 407-458 (2008) xii

Ibid.

xiii

Ibid.

xiv

Iran-US Claims Tribunal, Tippetts, Abbett, McCarthy, Stratton v. TAMS-AFFA, 6 IRAN-U.S. C.T.R.,

at 219 et seq. xv

METALCLAD CORPORATION V. MEXICO . ICSID CASE NO. ARB (AF)/97/1. 40 ILM 36 (2001),

AVAILABLE AT < HTTP ://WWW .WORLDBANK .ORG / ICSID /CASES /AWARDS .HTM >.

NAFTA CHAPTER 11

ARBITRAL TRIBUNAL, AUGUST 30, 2000. xvi

Phelps Dodge International Corp. v The Islamic Republic of Iran , 10 Iran-US C.T.R., 130

xvii

B. Weston, Constructive Takings’ under International Law: A Modest Foray into the Problem of

‘Creeping Expropriation, 16 Virginia Journal of International Law, 112 (1975) xviii

OECD , ""Indirect Expropriation" and the "Right to Regulate" in International Investment

Law", in International Investment Law: A Changing Landscape: A Companion Volume to

International Investment Perspectives , OECD Publishing, 43-72 (2005) xix

Supra n. xiv.

10 Iran-US C.T.R

xxi

Supra n. xv

xxii

Compañía del Desarrollo de Santa Elena S.A. v. Republic of Costa Rica, ICSID Case No. ARB/96/1.

(February 17, 2000).

Tecnicas Medioambientales Tecmed S.A, v. The United Mexican States , ICSID Award Case No. ARB

xxiii

(AF)/00/2.

CME (Netherlands) v. Czech Republic (Partial Award) (13 September, 2001) available at

xxiv

www.mfcr.cz/scripts/hpe/default.asp. xxv

Ibid.

xxvi

Id at pp 160-170.

xxvii

Id at p. 171.

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Rostrum’s Law Review ISSN: 2321 - 3787 Elizabeth Snodgrass, ‘Protecting Investors’ Legitimate Expectations: Recognizing and Delimiting a

xxviii

General Principle’, 21 ICSID Rev—FILJ 1, 36 (2006). xxix

Kenneth J Vandevelde, ‘A Unified Theory of Fair and Equitable Treatment’, 43 New York Univ J

Intl L & Pol, 69 (2010-11). xxx

International Thunderbirds Gaming Corporation v. United Mexican States , NAFTA Arb.Tr,, 2006.

xxxi

Id, para. 37.

xxxii

MTD Equity Sdn Bhd and MTD Chile S.A. v. Republic of Chile, ICSID Case No. ARB/01/7, Award,

May 25, 2004 (hereinafter MTD), available at http://www.asil.org/ilib/MTDvChile.pdf. xxxiii

Supra n.23.

xxxiv

Supra n.8.

xxxv

Saluka Investments BV (The Netherlands) v The Czech Republic, UNCITRAL, Partial Award, para

307, (17 March 2006) xxxvi

Id at para 276.

xxxvii

Kara Dougherty, Methanex v. United States: The Realignment of NAFTA Chapter 11 with

Environmental

Regulation ,

NW. J.

INT'L L.

BUS. 735

(2007). http://scholarlycommons.law.northwestern.edu/njilb/vol27/iss3/27 xxxviii

Lauder (U.S.) v. Czech Republic

(Final Award) (September 3, 2002) available at

www.mfcr.cz/scripts/hpe/default.asp xxxix

‚Restatement of the Law Third, the Foreign Relations of the United States,‛ American Law

Institute, Volume 1 (1987) Section 712. xl

Ibid.

xli

Centre for Public Interest Litigation v. Union of India, 2011(2)ACR1912(SC).

xlii

The Constitution of India, 1949, Article 14.

xliii

Eudoro Armando Olguín v . Republic of Paraguay. ICSID Case No. ARB/98/5 (1997)

xliv

Sea-Land Services, Inc. v. Iran, 6 IRAN-U.S. C.T.R., at 149.

xlv

S.D. Myers, Inc. v. Canada, (November 13, 2000) Partial Award, 232. International Legal Materials,

408. xlvi

Marvin Roy Feldman Karpa (CEMSA) v. United Mexican States, ICSID Case No. ARB(AF)/99/1

(2002) pp. 39-67. xlvii

Starrett Housing Corp. v. Iran, 16 IRAN-U.S. C.T.R., 112.

xlviii

Supra n. xxiii

xlix l

Supra n. xxiii, para 122

G.C. Christie, What Constitutes a Taking of Property Under International Law, 38 Brit. Y.B.

Int’l L. 307 (1962).

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For example see US-Singapore, US-Chile BIT.

lii

James and others v. United Kingdom, (1986) 8 EHRR 123

liii

Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85)

liv

Ibid.

Supra n. xvii.

lvi

Sistema threatens arbitration in 2G case, Times of India, Feb 28, 2012

lvii

Kawaljit

Singh,

Sistema

Threatens

Invoke

Bilateral

Investment

Treaty ,

http://www.madhyam.org.in/admin/tender/Sistema%20Threat2.htm

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JUVENILE JUSTICE: IS AGE LIMIT THE RIGHT CRITERIA TO DEMARCATE A PERSON FROM GETTING PROPER PUNISHMENT? SNEHA PRIYA ABSTRACT It’s really an irony that the most brutal of all the accused in brutal December 16 Delhi gang-rape case, wherein a 23-year-old girl was gang-raped and brutally beaten on a bus, is a juvenile and hence shall get away with a milder punishment of three years in a correction facility. A nationwide sensation erupted when this verdict was given. It is also pertinent to know that as it was described by the police officers, he was the ‚most brutal‛ out of all the accused. India registered 23.87 lakh juvenile delinquency cases in 2012. This case has received such unprecedented publicity, that it has set the worst possible precedent for juvenile offenders.

The paper aims at analysing whether the ‚punishment‛ awarded to juveniles under the juvenile justice (care and protection of children) act is justified and proportionate to the heinous crime they commit. The intention behind the crime, the degree of the perpetrated atrocity and the severity of the crime should be the parameters to judge a case when a juvenile is involved. It is a sad state of affairs that age factor plays a major role many times. It is unfair to the country if the perpetrators of such heinous crimes be pardoned and let loose in the society. A new juvenile law should be implemented which considers not just the age, but also the degree of atrocity conferred. What should be considered is the intention and severity of the offence and hence the age of the minor should not be the only deterrent. Keywords: Juvenile, rape, death penalty, justice, criminal Page | 173

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INTRODUCTION Crime’ is present in our society from a very long time. We may disagree its hold in the society but we cannot deny its presence. However, it has been on the rise in recent times. What’s most astonishing is that the young are getting more attracted to what we can simply call the ‚crime sector‛. It is undeniable that they are the worst affected as they are still in the initial phase of what could be a bright future. But, should minors be treated differently as compared to others who commit the same crime? Is this because of the rather lenient Juvenile Justice System? Crime at any age must be treated as a crime. Does a 17-year-old have less reasoning power than an 18-year-old? What great mental development will there be in the next one year? Is he less capable of understanding the ramifications of his actions one year before? Was the enhancement of the age of a juvenile from 16 years to 18 years in year 2000 without any basis? Are they are in a position to decide what is wrong and what is right? To answer these entire set of questions, we must have a clear insight into the Juvenile Justice system of India.

AN INSIGHT INTO THE JUVENILE JUSTICE SYSTEM OF INDIA Young offenders were treated by criminal law in India in the same manner as adult offenders. The law governing them sentenced them to institutions like prisons where adult and juvenile offenders were dumped together. The first major legislation in this regard in India was the Apprentices Act, 1850 through which the Magistrates were authorized to act as guardian in respect of a destitute child or any child convicted of vagrancy or the commission of a petty offence and could bind him as an apprentice to learn a trade, craft or employment. i Then we had the Reformatory Schools Act, 1897 which made a beginning for incorporating the rehabilitative techniques in the penal philosophy for juvenile offenders. The Act provided that young offenders up to 15 years of age found guilty of offences punishable with imprisonment or transportation were not to be sent to ordinary prisons but to

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reformative schools. ii Then we had Children Acts in various states of the country dealing with juvenile courts and other institutions. The Juvenile Justice Bill was first introduced in the Lok Sabha on 22 August 1986. This Act was further amended in 2006 and 2011 and is now known as the Juvenile Justice (Care and Protection) Act, 2000.iii In India, the age of a juvenile (both boys and girls) was set at eighteen years of age by the Juvenile Justice Act, 2000 to conform to the United Nation’s Convention on the Rights of the Child. This would mean that all juvenile offences would be tried by the Juvenile Justice Board and not the regular courts. The original act doesn’t have a word about rape or murder being committed by juveniles. Under the law, juvenile offenders who have committed heinous crimes (rape and murder) can only be sent to a ‘place of safety’ for a maximum period of three years. Juvenile Justice Act, 2000 was further amended in 2006 to make it clear that juvenility would be reckoned from the date of commission of offence who have not completed eighteenth year of age thus clarifying ambiguities raised in Arnit Das vs

State of Bihariv . The amendment also made it clear that under no circumstances, a juvenile in conflict with law is to be kept in a police lock-up or lodged in a jail. v Who exactly is a Juvenile? Section 2 (k) of the Juvenile Justice (Care and Protection of Children) Act, 2000 defines ‚juvenile‛ or ‚Child‛ as a person who has not completed eighteenth year of age.vi A Juvenile can be defined as a child who has not attained a certain age at which he, like an adult person under the law of the land, can be held liable for his criminal acts. A juvenile is a child who is alleged to have committed /violated some law which declares the act or omission on the part of the child as an offence. Juvenile and minor in legal terms are used in different context. Juvenile is used when reference is made to a young criminal offenders and minor relates to legal capacity or majority.

vii

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In India, under section 82 of the Indian Penal Code, nothing is an offence which is done by a child under seven years of age and under section 83 nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequence of his conduct on that occasion. viii

JUVENILE JUSTICE- THE WORLD IN A NUTSHELL In United States Definition of juvenile varies from state to state-the lowest is 14 at which a youth can receive adult sentences for serious crimes. In 2011, Wisconsin teenager Brogan Rafferty, 16, was charged with two offences: Killing a man and attempting to murder another. He was tried as an adult and sentenced to prison. The same year, a 12 year old Colorado boy shot his parents to death and attacked two younger siblings, the motives of which remain a mystery. He was sentenced in Juvenile court to seven years in detention after pleading guilty.

In United Kingdom, Youth justice and Criminal Evidence Act, 1999, says children between ages 10 and 18 are capable of committing a crime and will be tried in a separate court for youth. In exceptionally severe cases, a youth can be tried as an adult in regular courts. x Dutch courts allow a maximum of two years of detention for heinous crimes committed by youth aged 16-18. Sometimes accused aged 19-21 are treated under Juvenile Law. For children between 12-25, it is one year of Detention. In extreme cases, juvenile court may apply adult criminal law for accused aged between 16-18. Popularly known as the Facebook murder, a 17 year old boy and 16 year old girl in Arhem plotted a ‘contract’ killing on Facebook after they had a spat with the victim, a 15 year old girl, in January 2012. The accused were sentenced to two years in juvenile prison and three years of compulsory therapy. The killer, who was 14, was sentenced to one year in juvenile detention. xi

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WHAT DOES THE NATION WANT? One of the six men involved in the Nirbhaya gang-rape in Delhi, was a juvenile at the time of committing the crime. And while the rest of the co-accused was awarded death sentences recently, the juvenile walked away a free man after three years at a reformatory home as per the Juvenile Justice Act. xii The whole country was outraged by this judgement. The punishment for a crime must be awarded regardless of the age of the perpetrator. In July, the Supreme Court dismissed eight petitions brought by the public asking them to rule that crimes of rape and murder committed by juveniles should be tried and punished under adult laws and that the upper age limit for juveniles be lowered to 16. The three-judge bench said in its order that ‚there are, of course, exceptions where a child in the age group of 16 to 18 may have developed criminal propensities, which would make it virtually impossible for him or her to be reintegrated into mainstream society, but such examples are not of such proportions as to warrant any change in thinking.‛ With great respect for the decision, I would simply like to state that is it fair that just because of the same few ‚exceptions‛ a woman or rather a few million women’s lives are spoilt and scarred forever.

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Even the subsequent petition submitted by Subramanian Swamy who asked the judges to consider the mental and intellectual maturity rather than the age especially when the young are involved in a very heinous crime was dismissed. xiv In 2012, police in India charged 35,465 juveniles for alleged involvement in crimes including banditry, murder, and rape and rioting, according to NCRBxv. Among those who faced Juvenile Justice Boards in 2012, two thirds (66.6%) were aged between 16 and 18 years, according to NCRB data The NCRB figures showed that 30.9% were aged between 12 and 16 years old and the remainder, (2.5%,) were aged between 7 and 12 years.xvi

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Even noted Supreme Court lawyer K.T.S Tulsi believes Crime syndicates are taking advantage of the juvenile age and increasingly involving younger boys in heinous crimes and keeping them in the forefront, knowing fully well that they cannot be punished.xviiThis trend will take dangerous proportions if the situation is not rectified urgently. The Parliament needs to wake up to this as soon as possible and change the law, reducing the juvenile age to at least 16. " The longer it takes, we allow more and

more young criminals to get away and free to commit crimes again" says Tulsi.

CAUGHT IN THE ACT? The police apprehended five â&#x20AC;&#x2DC;juvenilesâ&#x20AC;&#x2122; for the gang-rape of a minor girl in a locality under Basistha police station in Guwahati. xviiiThe victim, aged about 12 years, was playing with the five when they lured her to a hut and raped her from Saturday night till wee hours of Sunday, the police said. All the five accused have been sent to Observation Home at Boko in Kamrup district. xixWithin few hours of lodging of the FIR, all the five accused were apprehended. They claimed to be juveniles. xx The NCRB data also shows rapes committed by juveniles have jumped by 188%. The only categories of crimes involving juveniles for which growth figures are higher are theft and robbery which recorded a growth rate of around 200% and abduction of women which recorded and exponential rise of 660%.Again, while the debate on the issue of revisiting age limit in juvenile crimes has focused on the juvenile justice act being a reformatory tool, the NCRB data is not very encouraging, especially in case of Delhi. Close to 22% of all juvenile criminals in Delhi were repeat offenders in contrast to the national average of 11.5%. Sources say even this data gives a very conservative figure as only those convicted earlier are called repeat offenders. Also those who have turned adults and continued in crime are not included. The grim picture this paints is a reflection of the failure of remand homes to reform juveniles.xxi

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Figures on juvenile crimes by the National Crime Records Bureau (NCRB) reveal that from 2002 to 2012, there has been a 143 per cent increase in the number of rapes by juveniles. In the same period, figures of murders committed by minors went up by 87 per cent while there has been a whopping 500 per cent increase in the number of kidnappings of women and girls by minors. xxii "Though there has not been a rise in juvenile crime rates as such, there has been an

increase in the severity of the crimes committed by juveniles. Also the 17 year olds are aware that they are juveniles and take advantage of the fact saying you cannot take us in for questioning etc.", says Mumbai Joint Police commissioner Himanshu Roy of the challenges the police is facing in tackling crimes by minors.

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That clearly is not enough says former IPS officer Kiran Bedi. "There is a need to

revisit the juvenile justice act. For heinous crimes like rape it should be left to the judge to decide whether the act committed is committed by a child or not" she points out. xxiv There has indeed been a massive outrage expressed from all sections of the society.

A COMMON MANâ&#x20AC;&#x2122;S PERSPECTIVE. Unfortunately, the current system serves neither the purpose of rehabilitation nor deterrence against future crime. As reported by India Today, there are 815 remand homes in India with a capacity of 35,000. However, there are 1.7 million juvenile accused in India. Remand homes in India are not conducive to the reform and rehabilitation of juveniles as envisioned by the principles enshrined in international law. Rehabilitation is certainly an important aspect but at the same time we need to protect the woman and girls of our county. Whatâ&#x20AC;&#x2122;s the guarantee that the juvenile after being let off will not commit the same crime? The interest of the society is of utmost importance and if by losing one life in the process we are able to save many more innocent lives then undoubtedly we are thinking about the safety and betterment of the society. A legal deterrent must be created to protect the vulnerable Page | 179

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in the society has to particularly in view of the significant increase in rapes committed by juveniles. This ultimately brings us only to one conclusion. Yes, there is a need for the amendment of the Juvenile Justice Act. What can be the possible changes? Violent crimes such as rape and murder should be included in the adult criminal system for the juveniles after a certain age. . Any individual being so insensitive towards another human being of opposite gender to sexually assault and hurt her physically so brutally shall not at all be considered either a juvenile or requires any rehabilitation, as his act are far above an act of mature and physically strong person. How can we simply classify that a 17 year old boy was unaware that he was assaulting a poor girl and killing her physically and emotionally. The sad part about the laws is that we always look at the condition of the accused when we are considering about cases involving juveniles. : ‚Are they about 18? If they

are, yes they are convicted. No? Okay, we need to send them to a Reformatory home!‛ What we fail to realize in the process is that the condition of the victim is never ever taken into notice. If it had been taken, Nirbhaya would have got justice long back. Can a 17 year old be the most brutal among a group of 5 men and still have no mental maturity to realize that what he was doing was wrong? You can never blame poverty, lack of education and other factors as reasons to let go of criminal. It’s times we realize that we need to provide justice to the ‚victims‛ and not the ‚criminals‛. The mental maturity of the juvenile is to be judged on the fact if he was fully aware and conscious during the execution of the crime. If not then an adult of the age of 35 who has committed a crime unintentionally should be tried at the juvenile court for the reason that he was not mentally alert when he was committing the crime. I would appeal that age is no reason to exempt somebody who has brutally raped and been the reason for the death of a future Indian when he was completely aware and conscious of what he was doing. A hard step now can be a warning to the many young minds that grow up today and design their perspectives for tomorrow Page | 180

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considering the happenings of today. Let’s all realise that death penalty is not ‚killing someone‛ because the word itself creates wrong notions in people’s minds. What death penalty is mere penalty to someone who has caused the death (physically mentally or emotionally) of another person. The system has become more and more sympathetic to the delinquent in spirit, and anti-punitive in purpose. Let’s come out of false hopes that India is going to be a ‚rape-free‛ nation. If this were to happen, there would not have been thousands of more rapes happening all over the country. What’s more thought-provoking is that while I sit here writing this paper, deep in my heart I know another innocent girl is being deprived of her Right to Life. Can we as able citizens of India allow this to happen? When a juvenile commits a very brutal crime and poses a threat to society, should he be protected on account of his age and freed from proper trial and appropriate punishment? In the case of juveniles caught in terrorist activities there is a reasonable argument that they are also victims of terrorism in which they participate. Such crimes even we logically anticipate are often because they are compelled to and sometimes they are not even aware. Criminal gangs indulging in petty thefts to planned murder, terrorists, drug traffickers and other international crime operators are not any agespecific groups. ‚Catch them young‛ should be adopted in our justice system. The system has to respond. It is not that we wish that children are hanged and inflicted with pain. There are two major things. Firstly, law should be equal for everyone and anyone. Secondly, this is only a means to protect children caught in the web of adult crimes, and also save the society‛ from all people with criminal instincts.

CONCLUSION The heinous crimes such as rape, murder etc. are crimes which totally destroys the moral of the victim's family and if it's a rape then it's a lifelong stigma for the girl Page | 181

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and her family member. We must understand about the pain and problems that she goes through. The taunts and consequences she has to face in the process. Have we ever thought about the turnover of events in her life after such a situation? It’s time rape is renamed as ‚murder‛ because in reality it is nothing less than that. It is worse. When you murder someone you kill them in an instant. But when a girl is raped she is scarred for life. She is killed emotionally, mentally and physically to such an extent that many of times she regards suicide as the last resort. Is it justifiable to call it the Juvenile ‚justice‛ system then when many offenders of these crimes walk free after serving a minimal period of sentence after being proven juvenile as per the so called records. We know only some of the incidents which are put forward. Thanks to the ever lively yet very exaggerating media of our country. We have no idea that there are lakhs of cases unreported because of the stigma attached in our society. A girl abused is regarded dead and not useful to the society’s progress. Why? Obviously. It’s her fault. It’s her fault that she stepped out of this free India. It’s her fault that she tried to exercise her rights in this so called ‚democratic‛ country. The juvenile who commits crime of this gravity should not be left to walk free after serving maximum of 3 years that too in special home. We need to standardize the age of a child, create space for case-by-case interpretation. We need to amend the Juvenile Justice Act in such a way that for severe and heinous crimes juveniles must be tried as adults and ought to be given the same punishment. If we believe in providing true justice to the victims of such incidents, we will start with this little step to pave way for wonders to happen. And this is the voice of the people at large. Because every human being in this country believes that Justice delayed is Justice denied. It took all of us including the government one barbaric rape case to question the Juvenile Justice system. The fallacies must be recognized and removed. After all, let’s remember, criminals do not fear life, they fear death.

And death is an ultimate deterrent.

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REFERENCES Apprentices Act, 1850,HELPLINE LAW,(Dec 15,2013,6:00 PM),

http://www.helplinelaw.com/docs/APPRENTICES%20ACT,%201850 ii

Reformatory Schools Act, 1897,LEGAL CRYSTAL, (Dec 15,2013,6:30 PM),

http://www.legalcrystal.com/acts/51765

Juvenile Justice(Care and Protection of Children) Act,2000, YALE LAW,(Dec 15,2013,6:30 PM),

iii

http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/india_juv_just.pdf iv

2000 5 SCC 488

The Juvenile Justice(Care and Protection of Children ) Amendment Act, 2006,MINSTRY OF LAW

AND JUSTICE,( Dec 17, 2013, 7:00 AM), http://wcd.nic.in/childprot/jjactamedment.pdf

Juvenile Justice Act,2000,CHILD LINE, (Dec 18,2013,09:00 PM),

http://www.childlineindia.org.in/Juvenile-Justice-Care-and-Protection-of-Children-Act-2000.htm vii

Black’s Law Dictionary

Section 82 of IPC, IPC, (Dec 15,2013,05:00 PM), http://ipcsections.wordpress.com/2010/02/26/ipc-

viii

section-82/

Juvenile justice system in USA, AMERICAN BAR, (Dec 24,2013, 09:45 AM),

http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheckdam.pdf x

About the youth justice board, UK GOVT, (Dec 31,2013,09:55 pm),

http://www.justice.gov.uk/about/yjb xi

Juvenile justice policy, NETHERLANDS YOUTH INSTITUTE,(Dec 19,2013,09:45 PM),

http://www.youthpolicy.nl/yp/Youth-Policy/Youth-Policy-subjects/Child-protection-andwelfare/Juvenile-justice-policy xii

Juvenile justice system abetting crimes by minors? TIMES OF INDIA, (Dec 20,2013,09:00 AM),

http://articles.timesofindia.indiatimes.com/2013-09-22/people/42253034_1_juvenile-crime-juvenilejustice-act-juvenile-criminals xiii

Juvenile Justice, JJ COMPARE, (Dec 20,2013,7:00 PM), http://jjcompare.org/2012/08/29/india-

summary/ xiv

Dismissal of Subramaniam Swamy’s plea, NDTV,( Dec 25,2013, 08:00 AM),

http://www.ndtv.com/article/india/amanat-case-board-dismisses-subramanian-swamy-s-plea-on-juvenileaccused-321836 xv

35,465 Juveniles arrested under IPC in 2012, HINDU, (Jan 1,2014,09:00 AM),

http://www.thehindu.com/news/national/35465-juveniles-arrested-under-ipc-in-2012/article4869193.ece

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Statistics of Juvenile crime, NRCB, (Jan 10,2014, 07:PM), http://ncrb.nic.in/CD-

xvi

CII2012/Statistics2012.pdf

December 16 gang rape: Juvenile gets only 3 yrs. jail. Is the law good enough to handle such cases?,

xvii

INDIA TODAY,(Dec 27,2013,08:45 PM), http://indiatoday.intoday.in/story/december-16-gangrapejuvenile-sentenced-to-three-years/1/305269.html xviii

5 Juveniles held in Gang rape, THE HINDU, (Dec 25, 2013, 08:00 AM),

http://www.thehindu.com/news/national/other-states/5-juveniles-held-for-gang-rape-inguwahati/article5137332.ece

Gang Rape by minors, NDTV, (Jan 10,2013,08:45 AM), http://www.ndtv.com/article/cities/girl-

xix

allegedly-gang-raped-by-friends-in-guwahati-accused-claim-to-be-minors-419629 xx

Gang Rape by minor boys, THE TIMES OF INDIA, (Dec 27, 2013,09:35 AM ),

http://articles.timesofindia.indiatimes.com/2013-09-17/guwahati/42147598_1_12-year-old-girl-policestation-five-boys xxi

Of all Juvenile crimes, 64% by 16-18 years old, THE TIMES OF INDIA,(Dec 28,2013,09:00 PM),

http://articles.timesofindia.indiatimes.com/2013-01-06/india/36173359_1_juvenile-crimes-juvenilecriminals-reform-juveniles xxii

Heinous crimes by minors on the rise, shows Ncrb data, NDTV, (Dec 24,2013,08:15 AM),

http://www.ndtv.com/article/india/heinous-crimes-by-minors-on-the-rise-shows-ncrb-data-415367 xxiii

8 Gang rapes in 8 months in Mumbai, TIMES OF INDIA, (Dec 28,2013,09:00 AM),

http://articles.timesofindia.indiatimes.com/2013-12-02/mumbai/44656705_1_rti-application-nirbhayacase-shakti-mill xxiv

Death Penalty true justice for humanity, IB TIMES ,(Dec 20,2013.08:15 PM),

http://www.ibtimes.co.in/politics-videos-news/282/nirbhaya-case-death-penalty-true-justice-forhumanity-says-kiran-bedi.htm

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THE MINIMUM AGE OF CRIMINAL RESPONSIBILITY IN INDIA: IS IT TO BE BLAMED FOR THE INCREASING YOUTH CRIME? STUTI ABSTRACT Childhood is a notion that is subject to constant revision in any given era or place this phrase has assumed significant importance in the present legal scenario making it inevitable to analyse if this understanding is indeed true or not. In the aftermath of the Nirbhaya case in India, a big question has arisen with regard to the correctness of the existing age of criminal responsibility in India. The following Essay delves into this issue and attempts to draw a suitable conclusion with regard to the effectiveness of the Indian Juvenile Justice system. The present age of criminal responsibility in India according to the Juvenile Justice (Care and Protection for Children) Act, 2000 is 18 years. Juvenile offenders are accorded special treatment under this Act and are not tried in the same Courts as adult offenders. The Essay explores the genesis and jurisprudence behind such law through a study of the UN Conventions. The Essay also tries to understand if there exists a need for changing the current age and making special provisions foe serious offences. The Essay further touches upon certain important issues including how stricter laws may prove counter-productive for offenders who are forced into crime owing to the social environment they are brought up in, and if the punishment should depend on the mental and intellectual capability of each juvenile offender. Lastly, the Essay proposes certain changes with regard to the Indian Juvenile Justice System to make it more effective.

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INTRODUCTION The minimum age of criminal responsibility (MACR) is the age below which a person is completely immune from any criminal liability due to lack of maturity and judgement to understand the consequences of oneâ&#x20AC;&#x2122;s actions. Next comes the age below which a person is considered vulnerable and immature and hence cannot be made fully responsible for ones actions. This is the period of childhood and adolescence and crime committed during this stage is dealt with by most nations under special laws known as juvenile justice laws. Juvenile delinquency is on the increase today and one of the major issues faced by the world. India is also struggling with juveniles committing serious and grave offences. Thus arises the question if the juvenile laws in the country are too soft and require improvements. How does one ascertain the reasonable punishment for a child? How does one ensure deterrence as well as restoration?

THE AGE OF CRIMINAL R ESPONSIBILITY IN INDIA: CURRENT SCENARIO The Criminal system in India is governed and regulated by 2 major legislations including the Indian Penal Code, 1860 (IPC) and the Code of Criminal Procedure Code, 1973 (CrPC) . The IPC provides the substantive part laying out the rights and responsibilities and the CrPC lays down the procedure to be followed by a Court of Law in a criminal proceeding. The IPC has set the age of criminal responsibility at 12 years. An offence committed by a child under the age of 7 years is not punishable. i Also, an offence committed by a child above the age of 7 years but below the age of 12 years will not be punishable if it seems that he does not possess sufficient maturity to judge the consequence of his actions. ii Further, it is believed that children cannot be put in the same category as adults under the Criminal Justice system of the country and hence require development of

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special provisions for them. Physical and mental immaturity and dependency on others are the most outstanding features of childhood. iii India has fulfilled this obligation by enacting the Juvenile Justice (Care and Protection for Children) Act, 2000 (JJ Act). A Juvenile is defined as a person who has not reached the age of 18 at which one should be treated as an adult by the criminal justice system. iv The JJ Act has set the age of criminal responsibility at 18 years or in other words it can deal with offenders under the age of 18years. v This age has been set at 18 to bring it in conformity with the definition of child under the UN Convention on the Rights of Child. The sentencing options available under the JJ Act include advice/admonition, counselling, community service, payment of a fine or, at the most, or detention in a remand home for a maximum period of three years.vi Section 4 of the Act provides for setting up of a Juvenile Justice Board, consisting of a Metropolitan Magistrate or a Judicial Magistrate of First Class, and 2 social workers one of whom is a woman. Such Board/Bench has the same powers as conferred by the CrPC on a Metropolitan Magistrate or a Judicial Magistrate of the First Class. The trial of a juvenile shall be conducted before this Boardvii and even in cases where a juvenile is produced before any other Magistrate; such Magistrate is required to forward the juvenile to the Board. viii The Act has also enacted provisions to ensure that proper and appropriate treatment is meted out by the Police Authorities towards the accused juvenile. According to Section 10 of the JJ Act, any juvenile in conflict with law who has been apprehended by the police, should be placed under the charge of the Special Juvenile police unit or the designated police officer who shall produce the juvenile before the Board within a period of 24 hours. The Act also provides for constitution of a Child Welfare Committee in every district for the care, protection, development of children in need of care and protection. ix It

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also provides for setting up of children homes, shelter homes and further makes provisions for after-care to help them restore their regular life once they leave special homes or children homes.x

RELAINCE ON INTERNATIONAL JURISPRUDENCE The first national legislation on Juvenile Justice was adopted by the Parliament in 1986 in the form of the Juvenile Justice Act, 1986. The 1986 law was the first attempt in India to create a uniform, national, body of law and system of justice and corrections for young people. This legislation however wasn’t the first on juvenile justice in India. Several states and union territories had enacted their own legislations with respect to juvenile offenders. The era of such legislations had begun in the period of British Rule with the enactment of the Apprentice Act, 1850. Next, the Indian Penal Code, 1860 set the age for criminal culpability and the CrPC also went to make provisions for separate trials for persons under the age of 15 years, and their confinement in reformatories rather than prisons. xi The first legislative act in specific regard to children was enacted by the State of Madras in 1920.xii This law defined a youthful offender as someone who is below the age of 18 years. The Children’s Act was passed in 1960 and the 1986 Act is an essentially an extension to this statue. The 1986 Act was re-modelled to bring it in conformity with the UN Convention on Rights of Child which the Government of India had ratified on 11 th December, 1992 and hence, came into existence the Juvenile Justice (Care and Protection of Children) Act, 2000.xiii The existing law relating to juveniles was re-enacted bearing in mind the standards prescribed in the Convention on the Rights of the Child, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985 (the Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).xiv The Rights of Child Convention defines a child as every human being below the age of 18 years. xv

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The jurisprudence underlying these legal texts is the legal philosophy that juveniles lack the physical and mental maturity to take responsibility for their crimes, and because their character is not fully developed, they still have the possibility of being rehabilitated.xvi Children, as right holders have the right to be protected. Children may not be able to exercise liberty rights; however, they do possess protection rights such as right to education, health and public safety. Childhood is a concept that bundles together ideas and expectations about young people and their role in societies.xvii As such, its meaning is socially constructed and varies over time within and across cultures, with no one universal meaning. xviii Different conceptions of childhood then predispose people to understand, interpret, and address children’s issues from different vantage points, including through the creation of legal norms and standards about children. xix Thus, this translates into specific precise legal age limits that mark the boundaries of childhood and adolescence. Children younger than the prescribed age are considered legally incompetent. Since they don’t exercise any rights apart from protection rights, they also are not burdened with any form of responsibility. Children progressively acquire liberty rights as they pass successive age limits, each denoting legal competency and responsibility in different areas. Examples include legal and medical counselling without parental consent, end of compulsory education, marriage, sexual consent and the minimum age of criminal responsibility.xx Typically, the age of majority in a given country is the final or nearly final age limit, bringing adult rights and responsibilities in most contexts. This approach is broadly reflected in the UN Convention on the Rights of Child. Several other international legal instruments have commented on the minimum age of criminal responsibility focusing on the protection of child’s rights. These Conventions include the International Covenant on Civil and Political Rights (ICCPR), which though does not set out a specific age limit, imposes upon State the responsibility to set a minimum age limit which is in conformity with internationally recognised norms and is applicable to boys and girls alike. xxi The UN Standard Minimum Rules for the Administration of Juvenile Justice also recognises the fact Page | 189

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the minimum age for criminal responsibility varies from place to place owing to history and culture. However, it does assert that such age should not be fixed at too low an age level, taking into consideration the facts of emotional, mental and intellectual maturity. xxii The Beijing Rules further allow deprivation of liberty of juvenile in case of an offence of serious and violent nature. The Convention against Torture, 1984 has frequently expressed concern over age of criminal responsibility being set at very low age levels like 7, 8 and 10 years.xxiii

IS THERE NEED FOR CHANGE? One of the most visible examples for advocating a change in the current juvenile justice system in India would be the 2012 Delhi gang-rape case, famously known as the Nirbhaya case. It was a blotch not only on the juvenile justice system but also on the criminal justice system as whole. A 23-old medical student was brutally beaten and gang-raped in a moving bus in the southern part of Delhi. A total of 6 offenders were involved in the crime, one of which was a 17-year old juvenile. This incident sparked off several protests in various parts of the country demanding stricter punishment for juveniles in India. This case has raised questions about the effectiveness of the juvenile system in the country. There is on-going debate about the correct age of criminal responsibility and whether such age needs to be lowered or an exception needs to be made for serious crimes like rape and murder. Statistics do certainly reveal an increasing trend in the rate of crime by juvenile in the country. A study of crime rate in the past decade shows that the even though the percentage of juvenile crime compared to total crime has increased by a mere 0.7% over a span of 10 years, the percentage of juveniles committing the offence of rape has increased by an alarming 53%.xxiv The police in the country have booked as many as 1,316 juveniles on rape charges the whole of last year. Another 685 minor boys were booked on charges of molestation. One of the 1,316 juvenile sexual offenders was a 13-year-old boy in Coimbatore who abused his five-year-old neighbour after Page | 190

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luring her to a secluded place. When the girl’s mother rushed to her help on hearing her wails, the boy escaped after hitting the woman. However, activists say it would be prejudicial to treat all juveniles in conflict with law as criminals. ‚Many juvenile sex offenders are themselves first victims, particularly street children and children in poor families would have been repeatedly abused by others and turned into offenders over a period of time,‛ says activist A Narayanan. xxv Further, the maximum number of juveniles have been apprehended for the crime of rape after theft and hurt. Juvenile between the age group of 16-18 years show maximum increase in crime rate at 25% over the past 10 years. An overwhelming majority from this age group has been held for the crimes of rape and murder. xxvi The question whether young offenders accused of serious and heinous crimes should be dealt by adult courts has many a times come before the Indian Courts in the past. With regard to the Reformatory Schools Act, conflict arose on whether children charged with death or life imprisonment should be dealt under this Act. The judicial opinion differed here as some High Courts held that the Act could be applied in such cases if the depravity was not innate, xxvii while others refused to apply it in view of the nature of the offence. xxviii Under CrPC the question was whether the juvenile Court or the Sessions Court had jurisdiction to deal with such cases and the controversy was settled in favour of the exclusive jurisdiction of the juvenile court. xxix

A COMPARATIVE OUTLOOK At this stage, it would be helpful to look at the juvenile laws of different countries and minimum age of criminal responsibility set by their legislators. A study of current MACRs worldwide shows that most countries have set the same at ages between 7 to 14, however they have at the same time made provisions for special treatment of offenders falling under the age of 18. Australia has several different legislations and courts governing the juvenile justice in different regions. For instance, in New South Wales, a person under the age of 18 and committing an Page | 191

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offence is dealt by a Childrenâ&#x20AC;&#x2122;s court as per the provisions of the Young offenders Act, 1997 and Children (Criminal Proceedings) Act, 1987. However, police charges for very serious offences are dealt with by District Courts and Supreme Courts. The sentencing options for a juvenile offender in Australia include a dismissal and/or caution, a good behaviour bond with or without supervision, a fine, referral to a youth justice conference, conditional or unconditional probation, a community service order, or an order that confines a young person to a period to detention in a juvenile justice centre.xxx Detainees 16 years and over, who are of high classification can be transferred to the Department of Corrective Services (Kariong Juvenile Correctional Centre). xxxi Australian legislation further provides for transfer of young offenders over 18 years to an adult custody if they have a serious indictable offence or in case he has committed an offence while in juvenile detention. xxxii Further, Legislations in Victoria and Western Australia deal with offenders from ages 10-17 and 10-18 respectively.xxxiii The Juvenile Justice system also provides several support and rehabilitation services to the young offenders such as post-release support services, group conferences, legal aid, intensive supervision programs for repeat offenders and others. Under the South Australian Young Offenders Act, 1993 the police is allowed to issue formal and informal cautions minus any court intervention. Informal cautions are for minor offences and in case of a serious offences, the offender may be referred to family conferences. Thus, Australia all in all provides for several sentencing options taking into consideration the age, maturity and nature of offence and also aims at maintaining as much normalcy as possible in the lives of the young offenders. In UK, the Youth Justice and Criminal Evidence Act, 1999 deals with young offenders under the age of 18. Youth Courts have the power to give Detention and Training Orders of up to 24 months, as well as a range of sentences in the community. Youth courts are essentially private places and members of the public are not allowed in. xxxiv In cases of minor offences or where the offender commits a crime for the first time, the same can be dealt by the Police or the local authority themselves in order to stop young people getting sucked into the youth

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justice system too early. The measures that can be taken by the Police include reprimanding, issuing a final warning or Anti-Social behaviour Order or imposing a local child curfew. Courts can also order a sentence in the Community rehabilitation Centre, Community punishment Centre or impose a fine. Special provisions have been provided for young offenders committing murder or other specified serious offences which are punishable with imprisonment of 14 years or more. Such offenders may be detained upto the adult maximum for the offence and under such conditions as the Secretary of State deems suitable. xxxv The length, period and nature of sentence may vary with each case taking into consideration the specific facts and in certain cases a offender may be shifted to adult custody after attaining 18 years of age. In US, the first juvenile court in the was established in Cook County, Illinois, in 1899 and within a few years juvenile court laws had been passed in each of the states. The legal doctrine of "parens patriae" formed the foundation of juvenile courts and meant that the State was given the authority to make decisions for the benefit of the child as a parent would. On the heels of the In re Gault xxxvi decision, the U.S. Congress passed the Juvenile Delinquency

Prevention

and

Control

Act

1968. In

1974,

further protections for youth were added in Act. This Act does allow detention of juvenile offenders in adult jails in certain circumstances. xxxvii In most U.S. States, the jurisdiction of juvenile courts is automatically waived when a juvenile above a certain age, usually 13 or 15, commits a violent or other serious crime, and the case is automatically transferred to adult court. A certification hearing takes place and an adult court prosecutor is required to convince the adult court that the case should be transferred. For instance, in countries like Indiana, South Dakota and Vermont, children as young as 10 can be tried as adults. Californiaâ&#x20AC;&#x2122;s Proposition 21 which was passed in 2000 allows prosecutors to automatically try juveniles who commit felonies as adults.xxxviii Several countries in Latin America and Caribbean have ratified the UN Convention on Child Rights in the last decade and set up a juvenile justice system for protection of young offenders, those under the age of 18. xxxix The Youth Criminal Page | 193

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Justice Act, 2003 was passed by the Government in Canada to restore the public confidence in the youth justice system. It allows imposition of adult sentences on most serious juvenile offenders.xl

WHETHER REDUCING THE AGE CAN TURN OUT TO BE COUNTER -PRODUCTIVE? The outrage caused post the Nirbhaya case resulted in people demanding for stricter laws for juvenile offenders and further a reduction in age from 18 years to 16 years. The SC touched upon on this matter examining the question of whether juvenile maturity should be used as a yardstick before referring trial to the Juvenile Justice Board in case of serious and heinous offences. xli In response to the same, The Women and Child Development Ministry proposed an amendment to charge juveniles between ages of 16-18 years of age involved in heinous crimes under the Indian Penal Code. However, the amendment has faced strong opposition from agencies like NCPCR, CRY, UNICEF and others citing the reason that it stands against the UN Convention on Child Rights which has been ratified by India. xlii It has been argued that such an amendment would result in retributive justice rather than restorative and reformative justice. The US SC in the case Roper v. Simmonsxliii, agreed with an overwhelming amount of psychological data pointing to the fact that adolescents who were around the age of 17 were vulnerable to peer pressure, coercion, were impulsive, more likely to take risks and make temporal decisions. xliv The main aim of the Juvenile Justice Act is to save young offenders from getting sucked into the criminal justice system so early on in life and to allow them to reform. However, such amendment would not only defeat this aim but also not allow the offender to recover from the punishment leaving his future in the dark. Juvenile offenders are allowed some leeway on account of the fact that they may be immature and not fully capable of understanding the consequences of their actions. Many further argue that following on the footsteps of US and UK may not work for India as the crime reality and trends varies considerably from that in India. The number of children being Page | 194

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charged in US and UK is much greater as compared to in India. xlv Juvenile delinquency has been known to arise due to several factors including family influence, the social environment a juvenile has been brought up in and peer pressure. At times, the demands of wants and needs are intensified by a society that consists of high mobility, social change, and is materialistic. Also, social changes can create anxiety and disillusionment for adolescents and thus they commit delinquent acts.xlvi In US, some of the most frequent juvenile crimes include thefts, gun violence and drug abuse. The increasing divorce rates and broken families is touted as one of the main reasons for delinquency as it leaves the juveniles with an emotional vacuum. Child welfare activists in India argue that that the Juvenile Justice Act is essentially a welfare law and has been created for the care and protection of the children, if harsher punishment is allowed for juveniles in the future, this Act would fail in this objective. Further, they believe that every juvenile is made a criminal due to the lack of required amenities and education for the child which the nation is obligated to provide.

CONCLUSION Taking all of the above factors and elements into consideration, the issue at hand remains that India is indeed facing an increase in youth crime which covers not just minor offences but also grave and heinous offences. The Nirbhaya case caused a shock wave in the entire nation outraging many including me. As tempted as I am to say that offenders committing offences of such gravity, irrespective of whether they are juvenile or adult should be harshly punished, it seems this is not the ideal solution to the problem. One shocking incident should not result in adaption of measures which might later emerge counter-productive. For instance, in the James Bulger case of 1993 in UK where two 11-year old charged with murdering a toddler had been tried in an adult court and sentenced to minimum of 8 years of imprisonment which was later increased to 10 years. The shock and outrage caused by the incident resulted in the public demanding for life imprisonment for the Page | 195

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offenders. The Home Secretary ultimately succumbed to the pressure increasing the sentence to 15 years. Later, the sentence was greatly criticised by the ECHR stating the 2 boys had received a fair trial. They were paroled in 2001, when they both turned 18 and by then UK had a juvenile justice system in place. xlvii Indian Legislators should not make a similar mistake due to public pressure and need to make a well thought out decision. However, the past incidents and increasing reports of youth crime do indicate the need for a change. The youth crime rate in India may not be as large as in other countries however; the same is also not going down. It would be a wise step to take preventive steps from itself. The Beijing Rules allows the signatories to make special provisions for serious and grave offences. Countries like UK, Australia and US also have allowed special provisions for serious offences like murder, sexual assault, rape and others. India can also follow on similar lines because even if the main objective of the juvenile law is welfare and restoration, at the end of the day every law should have a deterrent effect. If a law begins to lose the element of deterrence, it will no longer stay effective. Further, in cases of juveniles it is easier to reform them when they first show anti-social behaviour rather than when they become hard-earned criminals. India should allow more serious punishment or longer periods of duration for children committing serious offences in the bracket of 16-18 years especially. They need not be tried as adults, but under the juvenile act itself special provisions can be be made. They can be sentenced to detention in juvenile justice centres away from adult prisons. Once they have attained the age of 18 and the sentence is still pending, they can be transferred to adult custody. The juvenile law in Australia is modelled on these lines. Maturity of child offender can also be used as a yardstick in certain cases. Stricter punishments will definitely sacrifice on certain child rights such as education and affect their future, but one cannot deny that change is the need of the hour and India cannot afford to see more incidents like Nirbhaya.

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REFERENCES i

Section 82, IPC, 1860

Section 83, IPC, 1860

iii

VED KUMARI, THE JUVENILE JUSTICE SYSTEM IN INDIA: FROM WELFARE TO RIGHTS, 11

(Oxford India Paperbacks) (2010) iv

BRYAN A. GARNER, BLACK’S LAW DICTIONARY, 884 (Thomson West) (2004),

Section 2(k), JJ Act, 2000

Section 15, 16, JJ Act, 2000

vii

Section 6, JJ Act, 200

viii

Section 7, JJ Act, 2000

Section 29, JJ Act, 2000

Section 44, JJ Act, 2000

Section 298, 399 and 562, CrPC, 1973

xii

Madras Children’s Act, 1920

xiii

Preamble, JJ Act, 2000

xiv

Preamble, JJ Act, 2000

Article 1, Convention on Rights of Child, 1989 Aparna Vishwanathan, Balancing the Juvenile Act, THE HINDU, September 9, 2013, (January 15,

xvi

2014) <http://www.thehindu.com/opinion/lead/balancing-the-juvenile-act/article5107620.ece> Barry Goldson, ‚Childhood’: An Introduction to Historical and Theoretical Analyses ‛, in Phil

xvii

Scraton, ed., ‚Childhood in Crisis‛? (London University College London Press) (1997) xviii

Bob Franklin, ‚Children’s rights and media wrongs: changing representations of children and the

developing rights agenda,‛ in Bob Franklin, ed., The new Handbook of Children’s Rights: The Comparative Policy and Practice and Practice (London, Routledge) (2002) xix

Jo Boyden, ‚Childhood and the Policy Makers: A Comparative Perspective on the Globalisation of

Childhood, ‚ in James Allison, and Alan Prout, eds, ‚ Constructing and Reconstructing Childhood: Contemporary Challenges in the Sociological Study of Childhood‛ (London, Falmer Press) (1997) xx

DON CRIPANI,

CHILDREN’S RIGHTS AND

THE

MINIMUM

AGE OF

CRIMINAL

RESPONSIBILITY: A GLOBAL PERSPECTIVE, 3 (Ashgate) (2009) xxi

Manfred Nowak, U.N Covenant on Civil and Policitcal Rights: CCPR Commentary , Kehl (Germany),

N. P Engel (1993) xxii

Article 4, UN Standard Minimum Rules for the Administration of Juvenile Justice, 1985

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xxiii

Concluding Observations: Yemen, CAT/C/CR/31/4, 5 Feb 2004, pars. 6(1) and 7(I); Indonesia,

CAT/C/IDN/CO/2, 16 May 2008, Advance Unedited Vers., par. 17 (‚urgency‛)

Crime in India: Statistics, (National Crime Records Bureau) (2011) (January 15, 2014)

xxiv

<http://ncrb.nic.in/CD-CII2011/Statistics2011.pdf> xxv

J Santosh, NCRB Report: 1316 Juveniles booked for rape last year, THE NEW INDIAN EXPRESS,

June 17, 2013 (January 15, 2013) <http://newindianexpress.com/states/tamil_nadu/NCRB-report-1316juveniles-booked-for-rape-last-year/2013/06/17/article1638450.ece> Gyanant Singh, Age is no bar for sex crimes, suggests NCRB Report, INDIA TODAY IN, January

xxvi

28, 2013 (January 15, 2014)<http://indiatoday.intoday.in/story/adolescence-debate-juvenile-offencesncrb-report-2011/1/247858.html> xxvii

Gangaram Raghunath v State of MP, AIR 1965 (MP) 122 (SB)

xxviii

Ramgopal v State, 1968 Cri LJ 1178 (MP) (SB)

xxix

Raghbir v. State of Haryana, 1981 Cri LJ 1497(SC)

xxx

(January 15, 2014)<http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=6442458890>

xxxi

Section 28(1), Children Detention Centres Act,1987

xxxii

Section 19, Children (Criminal Proceedings Act), 1987

xxxiii

(January 15, 2014)<http://www.aihw.gov.au/WorkArea/DownloadAsset.aspx?id=6442458890>

xxxiv

Ian Blakeman, The Youth Justice System of England and Wales , 139th International Training

Course Visiting Experts Paper, xxxv

Section 90, 91, Powers of Criminal Courts (Sentencing) Act, 2000

xxxvi

In re Gault , 387 U.S. 1 (1967)

xxxvii

(January 15, 2014)< http://www.djs.state.md.us/history-us.asp>

xxxviii

Aparna Vishwanathan, Balancing the Juvenile Act, THE HINDU, September 9, 2013, (January 15,

2014) <http://www.thehindu.com/opinion/lead/balancing-the-juvenile-act/article5107620.ece> xxxix

UNICEF, Juvenile Justice System: Good Practices in Latin America , 2006 (January 15,

2014)<http://www.unicef.org/lac/JUSTICIA_PENALingles.pdf> xl

Julian V. Roberts, Nicholas Bala, Peter J. Carrington, Evaluating the Criminal Justice Act After 5

Years: A Qualified Success, Canadian Journal of Criminology and Criminal Justice, Vol 32, 133 (April 2009) xli

Dhananjay Mohapatra, ‚Should ‘juvenile Maturity’ be yardstick in trials, asks SC‛, TIMES OF INDIA,

Dec 3, 2013 (January 15, 2014)<http://timesofindia.indiatimes.com/india/Should-juveniles-maturity-beyardstick-in-trials-SC-asks/articleshow/26757714.cms> xlii

Himanshi Dhawani, Child rights panel against treating juveniles as adults , TIMES OF INDIA,

December 3, 2013

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xliii

Roper v . Simmons , 543 U.S. 551 (2005)

xliv

Kunal Ambasta, Retribution is not justice, THE INDIAN EXPRESS, Dec 4, 2013 (January 15, 2014)

<http://archive.indianexpress.com/news/retribution-is-not-justice/1202935/1> xlv

Crime and Punishment: Age reduction: Risky Affair, Express News Service, Dec 21 2013, (January

15,

2014)<http://www.newindianexpress.com/cities/chennai/Crime-and-Punishment-Age-Reduction-

Risky-Affair/2013/12/21/article1956931.ece> xlvi

Joseph A. Wickliffe, Why Juveniles Commit crimes, Yale New Haven Teachers Institute, (January

15, 2014)<http://www.yale.edu/ynhti/curriculum/units/2000/2/00.02.07.x.html> xlvii

Erin Keeley, Around the World: Juvenile Sentencing in the UK , Children’s Legal Rights Journal,

Vol. 32, (2012) 89

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CASE COMMENT

T.N. GODAVARMAN THIRUMULPAD V. UNION OF INDIA, MANU / SC / 0028 / 2014 M.SAKTHIVEL Environmental Law is one of the important areas in which the Supreme Court of India has contributed a lot for the protection of all the spheres of environment by creating new jurisprudences which inter alia includes ‚Absolute Liability Doctrine‛ i, Even the international aspects of the environmental laws such as precautionary principle, polluter pays principle and sustainable development ii have also been incorporated. Even though these developments have been done by the Indian Judiciary, the real contributors are the non state actors such as NGOs iii , private organisationsiv and obviously the common man too. In this context, it is noteworthy to quote that T.N. Godavarman Thirumulpad’s contribution for the protection of environment in this country is immense. By filing a considerable number of Public Interest Litigations (PIL), the green man intervened in various projects and ensured that proper balance is achieved in between the utilization of resources and the preservation of the same especially in the conservation of forest resources.v In this regard, his new effort in the realm of forest conservation before the Supreme Court has resulted in a major blow to the central government’s decision to provide hasty clearances to the projects that are connected with environment. The Government of India has constituted a ‘Cabinet Committee on Investment’ last year for the purpose of exclusively dealing with the projects worth more than Rs.1000 crore.vi The Idea behind the formation of this committee is to act as a single window facility which would facilitate the investors to obtain all types of clearances which would be required for beginning such a mega project including environmental clearances within a short span of time. However, it may not be a decisive solution hereinafter because of the Apex Court’s direction to appoint a regulator so as to Page | 200

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monitor and approve the environmental impact assessment (hereinafter, ‚EIA‛) at the central as well as state level. Let us discuss the case in detail. This interim application was filed to clarify certain points of the Apex Court in

Lafarge Umiam Mining Private Limited v. Union of India.vii As per the section 3(2) viii of the Environment (Protection) Act, 1986(hereinafter, ‚The EPA, 1986‛) the Central Government has the power to take necessary measures so as to protect and improve the environment. In order to execute the legislative directions stated in the section 3 (2) of the EPA .1986, the Central Government may appoint an authority if it is warranted. The same is very evident from the section 3 (3) of the EPA 1986, which reads as follows:

‚The Central Government may, if it considers it necessary or expedient so to do for the purpose of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5) of the Central Government under this Act and for taking measures with respect to such of the matters referred to in sub-section (2) as may be mentioned in the order and subject to the supervision and control of the Central Government and the provisions of such order, such authority or authorities may exercise and powers or perform the functions or take the measures so mentioned in the order as if such authority or authorities had been empowered by this Act to exercise those powers or perform those functions or take such measures‛. From the above provision, it is possible to be concluded that it is the Central Government’s discretion to appoint an authority if necessary subjected to a condition that such authority would discharge its duties under the central government’s control. Even though, the statutory language provides discretionary power to the central government, in Lafarge Umiam Mining case, the Supreme Court emphasized the need for having a regulator at the national as well as state level for ensuring the Page | 201

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proper utilisation of natural resources. In addition to this, the Court formulated some guidelines to be followed with respect future cases. In the present case, the issues before the court includes: 1. Whether the guidelines which include appointing a regulator at the national level along with state level subordinates are advisory or mandatory in nature? 2. Whether section 2 of the Forest (Conservation) Act, 1980(hereinafter ‚FCA,1980‛) should be read with section 3 of the EPA ,1986 and the Forest Policy, 1988? With respect to the first issue, as state above, while reading the statutory provision i.e., section 3 of the EPA, 1986, one may come to a logical conclusion that it is the duty of the Central Government to appoint an authority under section 3(3) for the purpose of discharging the duties envisaged in section 3(3) of the Act. Sub section 2 of section 3 is having many dimensions. Environmental Impact Assessment is one among them and important aspect too. In Lafarge Umiam Mining case, the Supreme Court of India noticed the lacunae in the existing EIA mechanism as notified in 2006ix and directed the Central Government to have an efficient system to be put in place for the future approvals. While holding the view, the Supreme Court expressed the inability of the adjudicating forums to look into all the spheres of the problems comprehensively. However, it is very well possible, if there would be a regulator with a special mandate for the same. Therefore, the Supreme Court directed the Central government to appoint an authority i.e., a regulator. The same reasoning is extracted here as follows:

(i.2.) The difference between a regulator and a court must be kept in mind. The court/tribunal is basically an authority which reacts to a given situation brought to its notice whereas a regulator is a proactive body with the power conferred upon it to frame statutory rules and Regulations. The regulatory mechanism warrants open discussion, public participation and circulation of the draft paper inviting suggestions.

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(i.3.) The basic objectives of the National Forest Policy, 1988 include positive and proactive steps to be taken. These include maintenance of environmental stability through preservation, restoration of ecological balance that has been adversely disturbed by serious depletion of forests, conservation of natural heritage of the country by preserving the remaining natural forests with the vast variety of flora and fauna, checking soil erosion and denudation in the catchment areas, checking the extension of sand dunes, increasing the forest/tree cover in the country and encouraging efficient utilisation of forest produce and maximising substitution of wood. (i.4.)

Thus,

are

the

view

that under

Section 3(3) of

the Environment (Protection) Act, 1986, the Central Government should appoint

National

Regulator

for

appraising

projects,

enforcing

environmental conditions for approvals and to impose penalties on polluters. (i.5.) There is one more reason for having a regulatory mechanism in place. Identification of an area as forest area is solely based on the declaration to be filed by the user agency (project proponent). The project proponent under the existing dispensation is required to undertake EIA by an expert body/institution. In many cases, the court is not made aware of the terms of reference. In several cases, the court is not made aware of the study area undertaken by the expert body. Consequently, MoEF/State Government acts on the report (Rapid EIA) undertaken by the institutions who though accredited submit answers according to the terms of reference propounded by the project proponent. We do not wish to cast any doubt on the credibility of these institutions. However, at times the court is faced with conflicting reports. Similarly, the Government is also faced with a fait accompli kind of situation which in the ultimate analysis leads to grant of ex post facto clearance. To obviate these difficulties, we are of the view that a regulatory mechanism should be put in place and till the time such mechanism is put Page | 203

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in place, MoEF should prepare a panel of accredited institutions from which alone the project proponent should obtain the Rapid EIA and that too on the terms of reference to be formulated by MoEF. From the above judicial pronouncement, it becomes evident that the Supreme Court gave a mandatory direction to the Central Government to appoint a regulator for the purpose of EIA. The same view has been re-affirmed with a time frame for appointing the regulator. The Full Bench, while upholding the same view, stated that it is the power of the central government with a mandatory duty to appoint an authority under the same provision. Therefore, the central government has been directed to appoint an authority/ a regulator at the national level having offices at as many states possible. This shall be complied before 31st March, 2014. With respect to the second issue, in Lafarge Umiam Mining case, the Supreme Court held that section 2 of the FCA, 1980 which says that the prior approval of the central government is required for converting the forest land for the non forest purpose, should be read with section 3 of the EPA, 1986 in the light of National Forest Policy, 1988. Due to this observation, the central governmentâ&#x20AC;&#x2122;s power under section 2 of the FCA, 1980 x has been restricted because the power is very wide than other environmental legislations. Under section 3 of the EPA, 1986, the Central Government has the power to appoint an authority for EIA clearances whereas in section 2 of the FCA, 1980, the Central Government itself will give the clearances. This has been brought to the kind notice of the Apex Court in the present case and it has been clearly held that the authority/regulator appointed under section 3(3) of the EPA, 1986 can only discharge its duties with respect to section 3(2) of the EPA, 1986. The regulator shall not step into the power conferred on the central government under section 2 of the FCA, 1980 xi. The Full Bench has rightly exercised its power to interpret the section 3(3) of the EPA, 1986 by saying that there is a power coupled with a duty to appoint a regulator for the purposes of EIA, and that is mandatory for ensuring proper mechanism to be put in place. This decision has to be appreciated because of the fact that this decision Page | 204

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will help to bring out more transparency in the environmental decision making process and the project clearance process too. If we look at this decision from the ongoing coal allocation and other mining issues context, it is one of the important decisions to ensure more transparency in future allocations and clearances. Likewise, as far as the second issue is concerned, the court rightly has restricted its interpretation and held that section 2 of the FCA, 1980 is different from section 3 of the EPA, 1986. By this interpretation, the court has ensured a space for the political executives with respect to the clearances for forest land conversion.

CABINET COMMITTEE ON INVESTMENT AND THE R EGULATOR As above stated, the central government’s decision to speed up the clearance process for the mega projects would be done by the Cabinet Committee on Investment. However, hereafter those clearances shall be subjected to the regulator to be appointed under section 3 of the EPA, 1986. By doing so, the clearance of the projects, would be based on necessary

established procedures Once these procedures are

complied by the regulator, the environmental decision making process would become more and more transparent. However, it may again slowdown the implementation of those mega projects xiiwhich would be very much essential to keep the economy on a higher growth trajectory. Even though the regulator shall act as per the directions given by central government from time to time, it is not feasible for the regulator to provide a differential treatment for different projects. Therefore, it is worthwhile to conclude by stating that the appointment of a regulator would add a hurdle for the mega projects but surely would help in bringing more transparency in the environmental decision making process.

REFERENCES . See M.C.Mehta v. Union of India, AIR 1987 SC 1086 (Oleum Gas Leakage Case) . See Vellore Citizens Welfare Forum v. Union of India, AIR 1996 SC 2715 iii . Like Peoples Union for Civil Liberty, Narmadha Batcho Andolan, etc., iv . Like Vellore Citizens’ Welfare Forum i

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Rostrumâ&#x20AC;&#x2122;s Law Review ISSN: 2321 - 3787 . See T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228, AIR 1998 SC 769, AIR 1999 SC 97, (2006) 1 SCC 1, etcâ&#x20AC;Ś vi . See Constitution of Cabinet Committee on Investment dated 2 nd January, 2103. The same can be accessed at http://cabsec.nic.in/showpdf.php?type=cci_notification (20th January, 2014) vii . (2011) 7 SCC 338 viii . Environment (Protection) Act, 1986, s.3(2) reads: (2) In particular, and without prejudice to the generality of the provisions of sub-section (1), such measures may include measures with respect to all or any of the following matters, namely:-- (i) co-ordination of actions by the State Governments, officers and other authorities--(a) under this Act, or the rules made there under, or (b) under any other law for the time being in force which is relatable to the objects of this Act;(ii) planning and execution of a nation-wide programme for the prevention, control and abatement of environmental pollution;(iii) laying down standards for the quality of environment in its various aspects;(iv) laying down standards for emission or discharge of environmental pollutants from various sources whatsoever: Provided that different standards for emission or discharge may be laid down under this clause from different sources having regard to the quality or composition of the emission or discharge of environmental pollutants from such sources;(v) restriction of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards;(vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents;(vii) laying down procedures and safeguards for the handling of hazardous substances;(viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution;(ix) carrying out and sponsoring investigations and research relating to problems of environmental pollution;(x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution;(xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;(xii) collection and dissemination of information in respect of matters relating to environmental pollution;(xiii) preparation of manuals, codes or guides relating to the prevention, control and abatement of environmental pollution;(xiv) such other matters as the Central Government deems necessary or expedient for the purpose of securing the effective implementation of the provisions of this Act. ix . Environmental Impact Assessment notification, 2006 has been issued by the Central Government u/s 3 & 6 of the Environment (Protection) Act, 1986. x . Forest (Conservation) Act, 1980, s.2 reads: Restriction on the dereservation of forests or use of forest land for nonforest purpose. Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing- (i) that any reserved forest (within the meaning of the expression" reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;(ii) that any forest land or any portion thereof may be used for any nonforest purpose.(iii) 1[ that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.] 1[ Explanation.-- For the purpose of this section" nonforest purpose" means the breaking up or clearing of any forest land or portion thereof for-(a) the cultivation of tea, coffee, spices, rubber, palms, oil- bearing plants, horticultural crops or medicinal plants;(b) any purpose other than reafforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild life, namely, the establishment of check- posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipeline or other like purposes] v

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. It was held: The time has come for this Court to declare and we hereby declare that the National Forest Policy, 1988 which lays down far-reaching principles must necessarily govern the grant of permissions under Section 2 of the Forest (Conservation) Act, 1980 as the same provides the road map to ecological protection and improvement under the Environment (Protection) Act, 1986. The principles/guidelines mentioned in the National Forest Policy, 1988 should be read as part of the provisions of the Environment (Protection) Act, 1986 read together with the Forest (Conservation) Act, 1980. This direction is required to be given because there is no machinery even today established for implementation of the said National Forest Policy, 1988 read with the Forest (Conservation) Act, 1980. Section 3 of the Environment (Protection) Act, 1986 confers a power coupled with duty and, thus, it is incumbent on the Central Government, as hereinafter indicated, to appoint an appropriate authority, preferably in the form of regulator, at the State and at the Central level for ensuring implementation of the National Forest Policy, 1988. xii . Supra n.1 page no. 2

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INTRODUCTION TO THE CONTRIBUTORS AASTHA TIWARI ________________________________________________________ Student, IIIrd Year, Symbiosis Law School, Pune, Maharashtra, India

AKASH KUMAR__________________________________________________________ Assistant Professor, School of Law, MATS University, Raipur, Chhattisgarh, India

ALWYN SEBASTIAN ______________________________________________________ Student, School of Law, Christ University, Bangalore, Karnataka, India

ANAND PAWAR__________________________________________________________ Associate Professor of Law, Rajiv Gandhi National University of Law, Patiala, Punjab

ANIRUDDHA KUMAR ___________________________________________________ Student, IVth Year, National Law University, Delhi, India

BHAGIRATH ASHIYA ____________________________________________________ Student, School of Law, Christ University, Bangalore

KARTIK CHAWLA _______________________________________________________ Student, IInd Year, NALSAR University of Law, Hyderabad

M SAKTHIVEL ___________________________________________________________ Assistant Professor, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, New Delhi, India

MAYANK SAMUEL _______________________________________________________ Student, NALSAR University of Law, Hyderabad

NARESH GUPTA _________________________________________________________ Student, IIIrd Year, Symbiosis Law School, Pune

PRERNA__________________________________________________________________ Student, School of Law, Christ University, Bangalore

RICHA KASHYAP ________________________________________________________ Student, IVth Year, BBA-LL.B, School of Law, KIIT University, Bhubaneswar, Odisha

SHUBHANGI _____________________________________________________________ Student, Gujarat National Law School, Ahmedabad

SNEHA P RIYA YANAPPA_________________________________________________ Student, Ist Year, Symbiosis Law School, Pune

STUTI BHATIA __________________________________________________________ Student, Gujarat National Law School, Ahmedabad

VIVEK SAURAV __________________________________________________________ Student, IVth Year, BBA-LL.B, School of Law, KIIT University, Bhubaneswar, Odisha

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