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CAMPUS LAW CENTRE
STUDENT LAW REVIEW

Volume II Issue I April 2014

Editorial Board 2013-2014

Patron-in-Chief Editor-in-Chief
Prof. (Dr.) Usha Tandon Sumedha Sarkar

Senior Editors
Vihan Dang Maansi Verma Kriti Saran

Editors
Ishita Bisht Anandita Sharma
Ajay Justice Shaw Rituparna Mukhuty

The Campus Law Centre Student Law Review (CLCSLR) seeks to publish and provide
avenues for student research and scholarship.
Published by the Students Union, Campus Law Centre, Faculty of Law, University of
Delhi.
No reproduction, storage or transmission except via fair dealing of any part of this
publication may take place without prior written permission of the Editorial Board of the
Campus Law Centre Student Law Review.
Please note that though every effort has been made to ensure that the information in
CLCSLR is accurate and appropriately cited/referenced, neither the Editorial Board nor
the Students Union shall be held liable or responsible in any manner whatsoever for any
consequences resulting from inaccuracies, errors or views taken by authors in the Journal.
Further, the views expressed by the authors are not necessarily those of the Editorial Board
or of any sponsors of Campus Law Centre Student Law Review.
Campus Law Centre Student Law Review 2014. All rights reserved.

ISSN 2321 0028 (Print)

CAMPUS LAW CENTRE
STUDENT LAW REVIEW

Volume II Issue I April 2014

CONTENTS
Foreword

Special Thanks

Editorial

Acknowledgments

Articles

1 Too Young, Too Wild and Too Free? Getting the Juvenile 1
Justice Act Together
Arindrajit Basu & Ayani Srivastava

2 The Greening of Trade Jurisprudence: A Study on the Conflict 27
and Reconciliation of Trade and Environment
Nivedita Raju

3 Right to Information: Shredding the Curtain of Secrecy Around 51
Political Parties
Tanya Choudhary

4 Heralding Corporate Governance in Banks in India: A Study of 77
Banking Laws (Amendment) Act, 2012 and BASEL III Accord
Anish Jaipuriar

5 Towards the Electronic Police State: Addressing the Concerns 101
Shamba Dey

6 Establishing the Jurisprudence of Instant Customary 121
International Law and its Contemporaneous Relevance
Sarthak Malhotra & Sujoy Sur

Legislative Comments

1 A Critical Overview of the Assistive Reproductive Technologies 143
(Regulations) Bill, 2010
Sriparna Dutta Choudhury

A tribute to

Professor Lotika Sarkar

(1923 2013)

For lessons within and beyond the classroom

2014 CLCSLR VOL.2 ISSUE 1

FOREWORD
I am pleased to learn that the second volume of the Campus Law
Centre Student Law Review is ready for its readers. In its maiden publication
in 2013, it became the first ever student-edited and peer reviewed publication
of the Campus Law Centre, Faculty of Law (University of Delhi). In its
second year of publication, this initiative by the Students Union is taken
forward with renewed vigour.
The Law Review has two primary goals. First, it provides a forum for
students to discuss, debate and deliberate on contemporary legal issues.
Second, the Review seeks to encourage writing, editing and research among
the Campus Law Centre student community. It will be an annual, peer
reviewed publication with a student Editorial Board committed to promoting
legal scholarship.
Campus Law Centre has an outstanding tradition of producing some
of Indias most erudite legal minds and it is this culture that needs to be
preserved and nurtured by creating opportunities for law students who will
eventually take up a career at the Bar or the Bench.
The second volume of the CLCSLR covers multidisciplinary issues
such as the jurisprudence of punishments for juvenile delinquents,
environmental considerations within International Trade relations, BASEL
and domestic banking laws, applicability of RTI on political parties, amongst
others.
I would like to commend the Editorial Board for this commendable
effort and look forward to the many contributions it is sure to make to legal
discourse in the future.

Professor Usha Tandon
Professor in-Charge
Campus Law Centre
April 2014
New Delhi


SPECIAL THANKS
The Editorial Board would like to express its deepest gratitude to
Advocate Ratan Kumar Singh for his encouragement and generous
sponsorship of the publication of the Campus Law Centre Student Law
Review, Vol. 2 Issue 1.
Advocate Ratan K. Singh is an eminent personality in the fields of
International and Domestic Arbitration, International Commercial and
Financial Law, Mining Law, Construction and Infrastructure Law,
Environmental Law, and Constitutional and Administrative Law.
Mr. Singh sits as an arbitrator and has also chaired as well as
participated as a tribunal member and counsel in various domestic and
international arbitrations, both ad-hoc as well as those governed under the
rules of ICC, UNCITRAL, SIAC, ICA, DIAC etc.
Adv. Singh is a Masters in Geology, apart from having a Bachelors
degree in Law. He is the Director of Indian Branch of Chartered Institute of
Arbitrators (CIArb), London, India Branch. He is also the Chairman of
International Arbitration Club of India, the Chairman of Indian Chapter of
Tourism Education Future Initiatives, Philadelphia, and a Patron of Centre
for Tourism Studies, Rajasthan Chamber of Commerce. He is also on the
editorial board of the Law Reports Recent Arbitration Judgments and
Bank CLR.
Being an approved faculty/tutor with CIArb, London, he has been
actively training practitioners and students. He has been called for delivering
lectures in various law schools, including the National Law Schools, and for
judging various national and international moot court competitions,
including Vis Moot conducted in Vienna and Hong Kong. He is also
instrumental in streamlining dispute resolution process of many private and
governmental organizations.
He is associated with myriad international forums and has delivered
speeches in United Nations World Tourism Organization (Madrid), Oxford
University, International Chamber of Commerce, Bombay Stock Exchange,
Commodity Stock Exchange, Standing Conference of Public Enterprises

(SCOPE), Nepal Mediation Society, Bocconi University (Milan) and the Nani
Palkhiwala Arbitration Centre.
In the recent past, Mr. Singh has been a speaker in Harvard India
Conference, jointly organized by Harvard Law School, Harvard Business
School and Harvard Kennedy School in Boston, U.S.A. on 15-16th February,
2014. Mr. Singh has also been one of the keynote speakers in the conference
organized by International Council of Jurists at London on 23th June, 2014.
Advocate Ratan K. Singh is presently authoring two books on
arbitration for leading international law books publishers.


EDITORIAL
Academic discourse and the exchange of ideas among the student
community form the bedrock of progress of any discipline, the law being no
exception to this. The Campus Law Centre Student Law Review is an
initiative to encourage such legal scholarship. Now in its second year of
publication, the Review strives to fulfil the objectives with which it was
established in 2012. It aspires to provide a platform to voice those opinions
and debates that emerge from the corridors and classrooms of law schools,
cutting across disciplines, interests and expertise within the student
community. By establishing a dialogue between the Board and the author,
the Review aims to act as a catalyst facilitating capacity building among those
who, through research and study, endeavour to take the discipline forward,
the Editorial Board being as much a part of the learning process as the
contributors to the Review.
Each year presents its own share of debatable legal issues, some fresh
off the block, and some that refuse to go away. Whichever way one looks at
it, this pushes one to think and test new ideas. Each of the submissions this
year reinforces this belief by seeking to engage with and innovatively
deliberate on fundamental legal questions that have arisen over the last few
years. After an invigorating and intensive review cycle, bolstered by a team of
meticulous peer reviewers, seven original manuscripts form the content of
the second volume.
This volume opens with an examination of the Juvenile Justice Act,
2000. In the aftermath of the Delhi Gang Rape Case, a public debate ensued
on the quantum of punishment to be awarded to the accused juvenile,
centring on the requirement of proportionality between crime and
punishment. Arindrajit Basu and Ayani Srivastava trace this critical debate,
while advocating a need to balance the retributive and rehabilitative objects
of punishing juveniles.
Trade related issues and environmental questions have not
conventionally been perceived to be interrelated. In the second article,
Nivedita Raju shows through case law how the objectives of these two
seemingly diverging fields can be reconciled. The paper goes on to establish
an inclination of the international community to not choose one at the cost

of the other, thereby promoting a healthy dialogue between free trade
proponents and those espousing environmental concerns.
The year leading up to the 16
th
General Elections saw a great clamour
for increased accountability and transparency in politics. In the midst of this,
the judgment of Subhash Chandra Aggrawal and Anr. v. Indian National Congress
and Ors brings political parties under the scope of the Right to Information
Act, 2005. In the third paper of the Review, Tanya Choudhary examines the
reasoning behind the judgment, its possible implications and proffers a
meeting ground between civil society and political parties through a
comparative study of parallel right to information legislations in other
nations.
Next, Anish Jaipuriar examines the changes the Basel III Accord
brings in the context of corporate governance in Indian banks. Identifying
the question of whether such change would be for the better or worse, the
article delves into the problems in adoption of Basel III and suggests
measures that can ensure a more transparent yet strong banking structure to
support a stable financial system in India.
The fifth article recognises the ability of the government to pre-empt
and protect the public through far reaching surveillance operations is often
seen to be in direct conflict with the exalted right to privacy of the very same
public. Shamba Dey examines the various aspects of surveillance operations
undertaken by the state, while arguing that the traditional perceptions of
privacy and governmental tracking must undergo a change in light of the
imminent need to safeguard against unprecedented adversaries.
Customary International Law, as a doctrine, has been as severely
criticised as it has been praised. It has been appreciated for filing a void
where codified international law fell short but at the same time, has been
dismissed for being traditionalistic, rigid and ambiguous in its application. In
the sixth paper of the Review, Sarthak Malhotra and Sujoy Sur argue that
Instant Customary law presents a more efficient alternative which focuses on
the psychological element of state intent i.e. opinion juris rather than insisting
on long practice for a custom to be formed. They contend, through
contemporary examples, that this doctrine is more systemised and more
suited for application in todays fast paced world.

The Review culminates with a legislative comment on the Assisted
Reproductive Technologies (Regulation) Bill, 2010. The advent of surrogacy
as a viable answer to the plight of couples unable to procreate, has sparked a
debate between the rights of the commissioning parents and the surrogate
mother. Sriparna Dutta Choudhury examines the Bill in light of the rights of
parties, arguing that the provisions of the Bill fail to sufficiently protect the
rights of the surrogate.
On a final note, the Editorial Board sincerely hopes that the second
volume of the Campus Law Centre Student Law Review proves to be an
engaging read and encourages students to debate, question and deliberate on
principles of the Law.

Sumedha Sarkar, Vihan Dang, Maansi Verma, Kriti Saran, Anandita
Sharma, Ajay Justice Shaw, Ishita Bisht and Rituparna Mukhuty.
New Delhi
April 2014


ACKNOWLEDGMENTS
The Editorial Board would like to thank our Advisory Board, Mr.
Ajitesh Kir, Mr. Siddharth Peter de Souza, Ms. Anu Choudhry and Mr. Udit
Rastogi for their support and encouragement.
The Board would like to express its gratitude to Mr. Rohit Rathi, Mr.
Brian Tronic, Mr. Dilpreet Singh, Mr. Raja Bagga, Ms. Jeny Shaw, Mr.
Surendra Kumar, Ms. Chinmayi Krishnan, Ms. Aamna Hasan, Ms. Samira
Varanasi, Ms. Yukti Choudhary and Mr. Aniruddha Rajput whose exhaustive
comments and invaluable insights played a pivotal part in the review process.
Finally, we would also like to thank Mr. Gupta of 3A Graphics for helping
with and printing the final manuscript.

2014 CLCSLR VOL. 2 ISSUE 1

1
TOO YOUNG, TOO WILD AND TOO FREE?
GETTING THE JUVENILE JUSTICE ACT TOGETHER
Arindrajit Basu & Ayani Srivastava
*

Can any society or legislative regime principally impose a lenient punishment on a
murderer or rapist simply on account of his age, regardless of the social harm he intended and
was capable of causing? In light of recent developments in India with respect to various
criminal occurrences involving juveniles, who were spared exposure to the punishment merited
by their crime, this paper seeks to establish that the answer to the above question lies in the
negative. Juveniles in India have been conferred a special status, etched in legal principles and
scientific research. This status has been recognised by the law in the form of a separate criminal
justice system for juveniles. The authors do not advocate doing away with this system. Yet, in
order to balance out the reformative and retributive aspects of any criminal justice system, this
paper advocates certain amendments to the Juvenile Justice Act, 2000, which provides for a
maximum punishment of three years in a remand home regardless of the degree of harm
intended and/or caused. The authors have compared the evolution of the Indian juvenile justice
system with legislative regimes from other jurisdictions, and have suggested incorporation of
some provisions to the Indian system, having factored in the cost to society, as well as the right
of juveniles to remain young, wild and free.
I. INTRODUCTION
As Karen left the public health building in Illinois for a quick visit to the
washroom, she could not possibly have fathomed the monstrosity of the events
that were about to unfold. She was raped at knifepoint by a seventeen year-old.
1

Neither could Ronnie-Green Jr., who walked out of his house onto the streets
of Pontiac, Michigan and was summarily executed by an 11 year old who was
using a 0.22 caliber-rifle.
2
Nor could the 23 year old physiotherapy intern in
New Delhi, as she boarded a moving bus, where she would be brutally violated
and fatally assaulted by five men, one of whom was 17 and a half years old.
3

*
II
nd
year, B.A. LL. B., West Bengal National University of Juridical Sciences.
1
Daniel W Van Ness, Crime and Its Victims: What Can We Do?, DOWNERS GROVE, IL;
INTERVARSITY PRESS 23-24 (1986).
2
Keith Bradsher, Boy Who Killed at 11 Is Convicted of Murder as an Adult, NY Times, Nov 7, 1999.
3
PTI, Delhi Gang Rape: Chronology of Events, The Hindu, Aug 31, 2013.

2
The tragic link between the three cases lies in the fact that the
perpetrators managed to evade the punishment that their acts merited. In
Karens case, the accused, who had been a repeat offender in various burglary
cases, plead guilty on a few counts of burglary, following which the rape charge
was dropped.
4
Attempts made by Karen and her family to re-open the case only
resulted in the criminal using his youthful offender status to obtain a lenient
punishment.
5
Nathaniel Abraham, who was responsible for the brutal murder
of Ronnie Green was sentenced to seven years in a rehabilitation home
6
while
the seventeen and a half year old on the bus in Delhi was sentenced only to
three years in a similar detention facility as per the provisions of the Juvenile
Justice (Care and Protection of Children) Act, 2000 (hereinafter the Act).
The first two cases led to a huge public outcry spearheaded by the
families of the victims, who felt that they had been wronged by the State. This
led to a paradigm shift in the laws of their respective states, which included
provisions to deal with juveniles, who commit crimes of an exceptionally
heinous nature, provisions that are yet to be incorporated into the Juvenile
Justice Act, 2000 in India.
7
As will be established throughout the rest of this
paper, the Indian system is grossly inadequate in its current state to account for
such juveniles, thereby obstructing the course of justice, superseding the rights
of the victim and diluting the potency of the crime. With strong public
sentiment prevailing against such heinous offenders
8
, the authors argue that the
system is at a watershed and it is time the legislature sought to plug such
loopholes, not by abolishing the system as a whole or by denying children their
special status but by making certain amendments to the current law.
The authors attempt to establish the above-mentioned hypothesis in the
following order. Part II of this paper summarises the various international
covenants on child rights that have shaped the framing of separate laws for
juveniles in India. While framing any recommendations, such international
covenants must be considered, something this paper does in due course. Part
III traces the evolution of juvenile justice legislation in India. Part IV discusses

4
Supra note 1.
5
Id.
6
Keith Bradher, Boy Who Killed Gets 7 Years, NY Times, Jan 14, 2000.
7
See also Aparna Viswanathan, Balancing the Juvenile Act, The Hindu, Sep 9, 2013.
8
Aditya Kalra, Arnika Thakur, Delhi Gang Rape Verdict: Reactions from People on the Street,
REUTERS, (Sep 10, 2013) available at http://blogs.reuters.com/indfia/2013/09/10/delhi-gang-
rape-verdict-reactions-from-people-on-the-street

3
and delineates the evolution of special acts in legislative regimes that may serve
as appropriate models for the Indian legislature. Part V elucidates the role of
the significance of the victim in the sentencing calculus and the extent of harm
suffered by the victim of a criminal act in the sentencing process, and thereby
lays the groundwork for this papers recommendations, which lie in the
separation of offences on the basis of intended social harm. Part VI rebuts the
argument that juveniles lack agency to form the requisite intention to commit
an offence, by considering and analysing the latest developments in the field of
neuroscience with respect to the functioning of the adolescent mind. Part VII
brings about the various recommendationswhich can be categorised into two
main courses of action. The first is an automatic legislative transfer of offences
such as rape and homicide, where the juvenile, if convicted, is automatically
punished as an adult without the judge applying his discretion. The second is
the conferring of a certain amount of discretion on the judiciary, after adhering
to pre-decided guidelines to impose punishment under the Indian Penal Code
instead of an alleviated one under the Act.
This paper does not seek to explore the ramifications of its
recommendations, in terms of its deterrent effect on future juvenile
perpetrators and hence has not analysed statistics with respect to juvenile crime
in the country. All the authors seek to do is to apply theoretical legal and social
principles in an attempt to balance out the rehabilitative and retributive aspects
of the juvenile justice system without delving into the institutional framework
through which the proposed amendments may be implemented.
II. A SUMMARY OF INTERNATIONAL
JURISPRUDENCE ON CHILD RIGHTS
The first international document that reflected the growing concerns of
the global community regarding the imperative need to secure the well being of
children was the Geneva Declaration of 1924, which advocated that nations
must strive to ensure that children receive the basic necessities of life and are
free from exploitation. The United Nations Declaration on the Rights of the
Child, 1989
9
defines a child as any individual under the age of eighteen.
10
India

9
United Nations Declaration on the Rights of the Child, November 20, 1959 GA res. 1386
(XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959).
10
Supra note 7, Article 1.

4
has signed and ratified this Declaration.
11
The Declaration recognises the
vulnerable status of children in society owing to both their physical and mental
immaturity, endorses special legal protection for them and propagates the
notion that any legislation must account for the best interests of the child.
12

The minimum requirements of a juvenile justice system were recognised
by the United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (hereinafter The Beijing Rules) in 1985.
13
These rules advocate
the setting up of a free, fair and efficient juvenile justice system in all countries
in order to protect the special status of the child. Regarding the Minimum Age
of Criminal Responsibility (MACR), the Beijing Rules state that this should be
set as high as possible, in line with the guidelines given by the United Nations,
which account for the socio-cultural differences in each nation and it is
imperative that the offender, if convicted, must be able to understand, by virtue
of his individual powers of discernment, the anti-social ramifications of his
behaviour.
14
Furthermore, the Beijing Rules correctly identify two broad aims of
juvenile justice. The first is obviously the well-being of the juvenile, which
would include the provision of ample opportunities for reformation, if any exist
and the second is the principle of proportionality, which endorses the notion
that punishment should be proportional to the gravity of the crime perpetrated
as well as the personal circumstances of the juvenile. These rules do not state
that the juvenile offender cannot be punished under any circumstances but such
punishment can, under no circumstances, be greater than that meted out to an
adult offender committing a similar crime.
15

The final developments in international jurisprudence, which have
impacted the evolution of Juvenile Justice in our nation, are the United Nations
Guidelines for the Prevention of Juvenile Delinquency (hereinafter The Riyadh

11
Jyoti Rao, A History of Child Rights in India (Dec 31, 2007), available at http://www.unicef.org/i
ndia/children_3220.htm
12
Supra note 7, Article 2.
13
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29,
1985, UN GAOR A/RES/40/33.
14
In those legal systems recognising the concept of the age of criminal responsibility for
juveniles, the beginning of that age shall not be fixed at too low an age level, bearing in mind
the facts of emotional, mental and intellectual maturity, United Nations Standard Minimum
Rules for the Administration of Juvenile Justice, Rule 4, UN GAOR A/RES/40/33 (Nov 29,
1985).
15
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29,
1985, Rule 5, UN GAOR A/RES/40/33.

5
Guidelines)
16
and the United Nations Rules for the Protection of Individuals
Deprived of their Liberty (hereinafter The Havana Declaration)
17
. The Riyadh
Guidelines build on the previously passed declarations on the rights of the
juvenile offenders, and explicitly call for socio-legal safeguards from social
stigma that may further damage the personalities and futures of juvenile
offenders. The guidelines recommend certain measures that the State may
impose to ensure their holistic well being. It also states that juveniles should not
be punished for crimes that do not cause excessive social harm. Apart from
proposing extensive measures on the proper administration of juvenile
detention facilities, the Havana Declaration proposes that the deprivation of the
liberty of a juvenile by judicial means such as imprisonment should only be used
as a last resort, in circumstances where such liberty poses an imminent threat to
public safety.
It is clear that while international law recognises the special status of the
juvenile offenders and the need for the enactment of a legislation to protect
such offenders, it also implicitly accounts for cases to which such protection
cannot be extended (albeit they may be exceptions) but indicates that the special
status should only be revoked as a measure of last resort.
By incorporating these principles of international law into domestic
jurisprudence, the Indian Constitution allows for special laws to be enacted in
favour of women and children through Article 15(3), which is the provision
from where the Act derives its constitutional legitimacy to ensure that
delinquents are reformed and re-integrated into society as productive
individuals.
III. A BRIEF HISTORY OF LEGISLATIONS
CONCERNING JUVENILE DELINQUENTS IN
INDIA
The Guardian and Wards Act, 1890 was the first instance of a legislation
targeting children in conflict with law.
18
This was followed by different states

16
UN GAOR A/RES/45/112, (Dec 14, 1990).
17
UN GAOR A/RES/45/113, Annex 45, UN GAOR Supp. (No. 49A) at 205, Dec 14, 1990,
U.N. Doc. A/45/49 (1990).
18
This term has constantly been used to describe juvenile delinquents in India, most recently in
the Statement of Purpose of the Juvenile Justice Act, 2000.

6
passing such acts specific to children like the Madras Children Act, 1920, the
Bengal Children, Act 1922, and the Bombay Children Act, 1924.
19

Over time, a need for a uniform countrywide legislation, as well as a
separate judicial process for children was felt and the abovementioned Acts
gave way to the Children Act, 1960, which distinguished between neglected
children and juvenile delinquents by establishing the Child Welfare Boards to
handle cases concerning the former, and Childrens Courts for cases pertaining
to the latter.
20
The Children Act, 1960 further created a post of probation
officer whose job description was to advise and assist neglected or delinquent
children.
21

This legislation was followed by the Juvenile Justice Act, 1986. As stated
in its preamble, this act sought to deal with neglected children and juvenile
delinquents
22
, laying down separate mechanisms for the two categories.
23
This
act was repealed by the Juvenile Justice Act, 2000, which amounted to Indias
acknowledgement to its international obligations as a signatory of the U.N.
Convention on the Rights of the Child of 1989, the Beijing Rules and the
Havana Declaration.
24
The Act was a far more comprehensive legislation,
extending the ambit of the categorisations made in the 1986 Act to juveniles in
conflict with the law (i.e. children who have committed, or are suspected of
having committed an offence)
25
, and children in need of care and protection
(i.e., children who have been neglected in terms of socio-economic necessities).
The Act thereby sought to deal with children in situations that could potentially
lead them to the path of delinquency and children who are already in conflict
with law.
26

The Juvenile Justice Act as applicable today stipulates blanket immunity
on all children under the age of eighteen by shielding them from trial and

19
Representing Children Worldwide, How Childrens Voices are Heard in Child Protective Proceedings: India
(February, 2006) available at http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/fron
tpage.htm.
20
Ibid.
21
Juvenile Justice Act: A Reformative Step for Children in Conflict with Law, SCAN INDIA (Feb 2,
2011) available at http://www.scanindia.in/blog/2011/02/02/juvenile-justice-act-a-
reformative-step-for-children-in-conflict-with-law/
22
Objectives, Juvenile Justice Act, (1986).
23
SUMAN NALWA & HARI DEV KOHLI, COMMENTARY ON THE JUVENILE JUSTICE ACT,
(Universal Law Publishing Company, 2011).

24
Aparna Viswanathan, Balancing the Juvenile Act, The Hindu, Sep 9, 2013.
25
Supra note 24, at 28.
26
Id.

7
subsequent punishment under adult court. It has been held that even in
offences punishable with death or life imprisonment, the jurisdiction to try a
juvenile is vested solely with the Juvenile Justice Board.
27

The philosophy underlying the Act is the doctrine of parens patriae,
where the State assumes a paternalistic role and the obligation of the Juvenile
Justice Board is primarily to determine the best interest of the child.
28
The
purpose of the enquiries
29
set up by the Board is not to convict and impart
sentence, but to rehabilitate the child and restore him/her to mainstream
society.
IV. A COMPARATIVE ANALYSIS OF JUVENILE
JUSTICE LEGISLATIONS
The evolution in juvenile justice legislations across the globe may be
divided into three major stages.
30
In stage one, offences committed by juveniles
were tried under the same framework as adults. With recognition of the
potential for reform in children, the law progressed to stage two and the State
adopted a paternalistic attitude towards juvenile delinquents. Horrific incidents
of crime triggered stage three wherein the State began to espouse a Get Tough
attitude on juvenile delinquency, and the welfare model followed previously
gave way to a justice model.
On close examination and analysis of the provision and working of the
juvenile justice systems of many jurisdictions, the authors have come to the
conclusion that the Massachusetts (USA) and the Canadian Law may be sound
models for adaptation by India as the events and social backlash that prompted
changes in these two systems are very similar to the backlash that India is facing
today.

27
Sarita Nayak Sawant v. State, Crl. L. J. 351 (1990).
28
Objectives, Juvenile Justice (Care and Protection of Children) Act, 2000.
29
As opposed to the criminal justice system, the juvenile justice system does not use terms like
trials and sentencing. They instead use enquiry or adjudication.
30
See MARK GOTTLIEB, BOSTON BAR ASSOCIATIONS TASK FORCE ON JUVENILE JUSTICE,
THE MASSACHUSETTS JUVENILE JUSTICE MODEL SYSTEM OF THE 1990S: RE-THINKING A
NATIONAL MODEL (1994).

8
A. CANADA- YOUTH CRIMINAL JUSTICE ACT, 2003
Before 1908, in Canada, children were treated as per adult criminal
jurisprudence and there were no special provisions for juveniles.
31
Stage two
came about with the enactment of Juvenile Delinquents Act, 1908. The Juvenile
Delinquents Act in 1908 characterised a significant change in the philosophy of
treatment of juvenile delinquents. It was grounded in the philosophy of parens
patriae. The Juvenile Delinquents Act stated, every juvenile delinquent shall be
treated, not as a criminal, but as a misdirected and misguided child.
32
The
juvenile justice system adopted a welfare model and consequently due process
rights were minimised and the process was informal; the primary aim being the
welfare of children. This legislation was replaced by the Youth Offenders Act,
1984. As the previous legislation had been critiqued on this ground, this Act
accorded due process rights to juvenile delinquents. However, the primary
objective of the legislation still lay in the welfare of children. The Youth
Offenders Act was criticised on many grounds inter alia for being too soft on
the offender, for not properly addressing serious and violent offences, and for
not giving enough recognition to the rights of victims.
33
In 2003, a young girl
was brutally attacked by a gang of juveniles.
34
The Youth Criminal Justice Act,
2003 was enacted in response
35
and stage three in Canadas juvenile justice
jurisprudence was ushered in. Incorporating a tough outlook on juvenile
delinquents, the Youth Criminal Justice Act expressly states long-term
protection of the public as a principle.
36
It further enunciates a need for
societal accountability of juveniles by consequences proportionate to the nature
of the offence.
37

Reformation and rehabilitation are also important aims of the Canadian
legislation and in furtherance of the same; there is an array of extra-judicial

31
Jay Makarenko, Youth Justice in Canada: History and Debates on Maple Leaf Web (March 1,
2007) available at http://www.mapleleafweb.com/features/youth-justice-canada-
history-debates.
32
Juvenile Delinquents Act 38 (1908).
33
Dept. of Justice, Govt. of Canada, The Youth Criminal Justice Act and Background, (24,
December 2013).
34
Frances P. Reddington,. Lynn S. Urban & Melissa Conn, Canada and the United States: A
Comparison of the Approach to Juvenile Crime, 6 JIJIS 241 (2006).
35
Id.
36
Youth Criminal Justice Act 3(1)(a) and 38(1) (2003).
37
See Youth Criminal Justice Act, 2003.

9
measures that may be employed when dealing with juvenile offenders.
38
The
Youth Criminal Justice Act provides for incarceration in certain cases
39
, such as
when a violent crime
40
has been committed by the offender, or when there are
aggravating circumstances like manner of commission of an offence. When the
juvenile is convicted for murder, incarceration is mandatory.
41

Recent amendments to the Youth Criminal Justice Act
42
introduce the
application of adult sentence to juvenile offenders from the age between 14-17,
who have been convicted of murder, attempted murder, manslaughter or
aggravated sexual assault.
43
The court must be satisfied beyond all reasonable
doubt that imposition of adult sentence is necessary for protection of society.
44

Youth Criminal Justice Act stipulates that factors such as nature and gravity of
offence, age, maturity, and previous criminal record of the juvenile must be
taken in consideration before an adult sentence is pronounced.
45

Previously, the proceedings of juvenile court were conducted in
confidentiality and the names of juvenile offenders were concealed from public
domain.
46
Staying true to the Youth Criminal Justice Acts objective of
protecting the public, and to aid transparency, the amendment proposes to
insert clauses which facilitate publication of names of young offenders
convicted of violent offences.
47
It also mandates the police to maintain criminal
records of all juvenile offenders, even in cases where no incarceration had been
imposed, and only extra-judicial measures were taken against the juvenile.
48

38
Youth Criminal Justice Act 17-18 Such as take no measures (police); issue the young
person a caution (police); issue the young person a formal warning (police and Crown); refer
the young person to a program or agency in the community that may help him or her to stop
offending (police); or refer the young person to a program of extrajudicial sanctions (police
and Crown).
39
Youth Criminal Justice Act 39 (1) (2003).
40
1
st
session, 41
st
Parliament. Clause 167 (3) 2012.
41
Youth Criminal Justice Act 42 (2003).
42
1
st
session, 41
st
Parliament. Clause 167 (3) 2012.
43
1
st
session, 41
st
Parliament. Clauses 176 and 183 2012.
44
1
st
session, 41
st
45
Youth Criminal Justice Act 72 (1).
46
Youth Criminal Justice Act 3(1) (b) (iii) (2003).
47
1
st
session, 41
st
48
1
st
session, 41
st
Parliament. Clause 190 2012.

10
B. MASSACHUSETTS JUVENILE JUSTICE LEGISLATION
Before 1899, in the United States, juvenile delinquents more than seven
years of age experienced the same criminal sanctions as adults.
49
The transition
to stage two occurred with the first juvenile court which came into existence in
1899.
50
The nature of proceedings of juvenile courts reinforced the paternalistic
nature of the State towards juvenile delinquents. It was a welfare system, where
the principle aim was to rehabilitate the children and protect their rights.
51
The
juveniles did not have any constitutional rights because the presumption was
that the court would always act to further the welfare of the child. This belief
began to be questioned in the 1960s and consequently, due process rights were
granted to juvenile delinquents.
52
The progression from stage two to stage three
was stimulated by the Edward OBrien case. OBrien was fifteen years old at the
time of commission of offence, and was charged for murder having stabbed his
neighbour ninety-seven times, leading to her death.
53
The judicial decision to try
him as a juvenile triggered the emergence of the concept of legislative waiver in
the 1996 statute.
54
William Weld, the then Governor of Massachusetts, said in
this regard, society has an obligation to exact retribution ... [and that] only by
facilitating the transfer of violent offenders to the adult system ...would
retribution be properly attained.
55

The Massachusetts Law, as it stands today, balances the interests of the
society against that of juvenile delinquents by going beyond theories of
rehabilitation and incorporating theories of punishment and deterrence as well.
The Massachusetts model does so by introducing an array of sentencing and
trial options. It employs a legislative waiver, which mandates automatic
transfer of a juvenile accused of first or second-degree murder to adult court.
56

There is also a provision for blended sentencing
57
, that is, the sentence imposed

49
Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 IND. L. REV. 279,
281 (1997).
50
Id.
51
Frances P. Reddington, Lynn S. Urban & Melissa Conn, Canada and the United States: A
Comparison of the Approach to Juvenile Crime, 6 JIJIS 241 (2006).
52
Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on
the Right Track, 33 U.S.F.L. 401, 405 (1999).
53
Ellen O'Brien, A Death Next Door, Boston Globe, Aug. 31, 1997.
54
Danielle R. Oddo, Removing Confidentiality Protections and the "Get Tough" Rhetoric: What Has Gone
Wrong with the Juvenile Justice System? 18 B.C. THIRD WORLD L. J. 125-26 (1998)
55
Id. at 124-125.
56
Massachussetts General Law, ch 199, 74 (1998).
57
Massachussetts General Law, ch 199, 58 (1998).

11
is such that may continue after the juvenile attains majority, subject to
evaluation of reformation by the requisite judicial authority.
58
Additionally, there
is a provision that defines a new category of youthful offenders, comprising of
juveniles between ages fourteen and seventeen who have been accused of
offences punishable by imprisonment under ordinary criminal law.
59
The
jurisdiction over juveniles under this category vests in the juvenile courts, and
they may be subjected to a juvenile sentence, adult sentence or a blended
sentence.
60
The judge is mandated to factor in certain denominators such as the
previous criminal record, age, maturity and capacity of reformation of the
offender, as well as the nature of offence and mode of commission of offence.
As a safeguard against unnecessarily harsh punitive measures, the law mandates
that the judge must make a written statement that the punishment imposed is
necessary for present and future public safety.
61

To further the objectives of deterrence and crime-control,
Massachusetts among other states, has reduced the confidentiality quotient
usually associated with juvenile court proceedings.
62
This extends to a harsher
treatment meted out to repeat offenders, so as to inculcate in them a sense of
responsibility towards society.
63

C. INDIA
The Guardians and Wards Act passed in 1890 was the first time that an
attempt was made to distinguish between criminal sanctions to children and
adult offenders. This was followed by the Juvenile Justice Act 1986, and
subsequently the Juvenile Justice Act 2000. All these acts fall under stage two of
the developmental trajectory observed in legislations pertaining to juvenile
justice across the world. All these legislations emphasise the paternalistic role of
the State and the primacy was accorded to welfare and rehabilitation of
children in conflict with the law.
The welfare nature of the Juvenile Justice Act, 2000 first came under
public scrutiny with the Delhi Gang Rape Case, where one of the six rapist-

58
Id.
59
Massachussetts General Law, ch.199, 52(1998).
60
61
62
the Right Track, 33 U.S.F.L. 401,405 (1999).
63

12
murders of a twenty three year old woman was a juvenile, aged seventeen and a
half years.
64
While the five adult accused were awarded the death penalty, the
sixth accused, a juvenile as per the definition provided under the Juvenile
Justice Act, 2000 will be tried under the aegis of the said Act and be
consequently subjected to a maximum of three years in a remand home- a much
more lenient punishment as compared to his co-actors.
65
This led to immense
public outrage and consequently, a clarion call for amendment to the Juvenile
Justice Act and reduction of age of criminal responsibility. This case may prove
to be the much-needed trigger to propel Indias juvenile justice legislation to
stage three.
There have already been some unsuccessful attempts to amend the law.
A Public Interest Litigation, Salil Bali v Union of India
66
was filed in 2013. The
petitioners challenged the provisions of the Juvenile Justice Act, in light of the
recent Delhi Rape Case and claimed that it was unconstitutional as it rendered
unfettered immunity to the juvenile and obstructed the proper dispensing of
natural justice. Firstly, referring to the Statement of Objects and Reasons of the
Act, the Court, after re-enforcing the various international covenants on the
matter held that purpose behind juvenile justice in India lay in the rehabilitation
and re-integration of the delinquents into society rather than taking punitive
measures. Furthermore, the Court stated that according to experts in the field
of child psychology, the chances of reformation taking place in an individual
before the age of eighteen are far greater. Forcing them to languish in jails may
inadvertently turn them into hardened criminals. Upholding the rationale of the
Act, the Court asserted that the human brain continues to develop till one
attains the age of eighteen and only at eighteen, does an individual fully
understand the consequences of his action and thus all individuals under the age
of eighteen must be given the protection of the Act.

64
Supra note 3.
65
Juvenile Justice (Care and Protection of Children) Act 15 (3) (2000): the Board may, if it
is of opinion that in the interests of the juvenile and of the public, it is expedient so to do, in
addition make an order that the juvenile in conflict with law shall remain under the
supervision of a probation officer named in the order during such period, not exceeding
three years as may be specified therein, and may in such supervision order impose such
conditions as it deems necessary for the due supervision of the juvenile in conflict with
law....
66
(2013) 7 SCC 705.

13
More recently, in Dr. Subramanian Swamy and Ors v. Raju through Member
Juvenile Justice Board
67
, the Supreme Court dismissed a petition regarding a
reading down of the Act to base the premise of juvenility on basis of mental
and intellectual maturity, instead of the present criterion of age. The
petitioners argued that such a blanket categorisation based on age, and
regardless of emotional and mental maturity, and seriousness of the nature of
the offence would be in contravention of Article 14. The Court countered this
argument stating that since the differentiation has been made in order to adhere
to Indias international obligations, as also to provide a separate framework for
trial and punishment for juvenile delinquents, it will not violate the principles of
classification under Article 14. The Court then cited the fundamentals of
reading down statutes, holding that if on a literal interpretation of the statute,
the Court believes that certain provisions may attract unconstitutionality, the
Court may explore whether there has been a legislative omission in that
regard.
68
However, the Court emphasised the thin line between reading down
and judicial overreach
69
, concluding that in the present case judicial interference
would be an infringement on the domain of the legislature. The authors agree
with this judgement in so far as it holds that such an amendment in the law
must be undertaken by the legislature.
We do not, however, suggest the reduction of the age of criminal
punishment for all offences as such a measure would not only be in
contravention of the various international covenants that India has signed and
ratified, but would also be logically incorrect in the Indian social context, where
social malpractices that exploit children, such as child labour, forced
prostitution and trafficking are still prevalent.
70
The law must be sensitive to the
special needs of the children and give them as much scope for rehabilitation

67
Criminal Appeal No. 695 of 2014, Arising out of SLP (Crl.) No. 1953 of 2013, judgment
delivered on March 28, 2014.
68
Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others 1991 Supp. (1) SCC
600.
69
Murthy Match Works and Others vs. The Asstt. Collector of Central Excise and Another
(1974) 4 SCC 428.
70
Such exploited children are generally prone to committing more offences due to economic,
social or educational under-development and the State is under an obligation to rectify this as
far as possible. See Shreya Shah, Indias Missing Children, By the Numbers, WALL STREET
JOURNAL INDIA (Sept 11, 2014) available at http://blogs.wsj.com/indiarealtime/2012/10/16
/indias-missing-children-by-the-numbers/

14
and reformation, as long as it does not unduly compromise the objective of
retribution, which also forms an integral principle of natural justice.
V. THE HARM PRINCIPLE AND ITS SIGNIFICANCE
IN LEGISLATIVE PROPOSALS
The legislations mentioned in Part V stems from the recognition of
retribution as a component of justice. The entire concept of retribution stems
from a notion of moral blameworthiness that justifies the punishment.
71
Hart
contends that the offender must pay a debt to society in the form of
punishment as compensation for violating the social order.
72
Herbert Morris
further extends this logic by stating that societys members implicitly agree to
an allocation of benefits and burdens by agreeing to live in and be a part of
that society and punishment serves the purpose of restoring the equilibrium of
benefits and burdens.
73
It obviously follows that as certain grave crimes would
upset this equilibrium more than others; the restoration of this equilibrium must
be based on a principle of proportionality, which correlates the punishment
meted out with the gravity of the act in question.
The gravity of a certain act is a function of the extent of the harm
caused, the degree of the criminals involvement in the alleged harm
74
and the
prior knowledge that the criminal had of the extent of harm his act may cause.
Incorporating the degree of harm into the sentencing calculus is a judicial
imperative, as different crimes are committed with differing degrees of
intention to cause harm. For instance, a murderer, by intending to end the life
of a fellow human being necessarily intended greater harm than a petty thief
who intended to deprive another human being of some cash and hence, the
murderer must receive a harsher sentence.
Recognition of harm also casts the offence in a more significant light by
indicating that a crime is not only a violation of a set of rules or laws, but also
has a direct impact on society through the impact on the victim. It has the two-
pronged benefit of recognising the offence as a misuse of the offenders free
will which has been bestowed upon him by society and also as an injury to the

71
Supra note 13.
72
H.L.A. HART, PUNISHMENT AND RESPONSIBILITY, 231 (1982).
73
Herbert Morris, Persons and Punishment, in PUNISHMENT 89, (J. Feinberg and H. Gross eds.,
1975).
74
R.Nozick, Philosophical Explanations, (Cambridge: Harvard University Press, 1981), pp. 363-66.

15
other individual.
75
It is logically incorrect to ignore the impact on the victim in
the process of sentencing as a violent crime necessarily involves at least two
parties and the current justice system in our country seems to focus on the
criminal, while neglecting the victim as a stakeholder.
76
The Right to Life has
been guaranteed to all individuals by Article 21 of the Constitution. The
Supreme Court has laid down, on innumerable occasions, that this right does
not refer to mere animal existence but extends to the right to live with
human dignity.
77
This right extends to living a peaceful life without being
subjected to violence or other forms of heinous abuse from other members of
society. This is where the irreducible right of the victim, which has its genesis
in the discourse on Article 21 of the Constitution and supersedes the rights of
the offender, comes into play.
In State of U.P. v Sanjay Kumar
78
, the Court proclaimed that a sentencing
policy in any criminal justice system must consider two aspects-the gravity of
the crime and the background of the individual. Endorsing the theory of
proportionality
79
for the determining of the sentence-a doctrine that has been
proclaimed by the Beijing Rules, the Court further stated that ignoring the
needs of the victim and his community and their right to avenge the loss
suffered due to the offence would amount to an encroachment of the human
dignity that is guaranteed by Article 21.
The 1993 Bombay Blasts were one of the most heinous acts of
terrorism in the last twenty-five years. On 12 March 1993, a series of 13 bomb
blasts rocked the city of Mumbai, resulting in 350 deaths and up to 1200 other
injuries.
80
In the Bombay Blasts Case
81
Muhammad Moin Faridulla Qureshi,
who was seventeen years and three months old at the time of commission of
the offence, was denied the protection of the Act on account of the nature of

75
D.Van Ness, Crime and its Victims, 23-24 (1986).
76
Lynne. N. Hendersen, Whats Wrong With Victims Rights, 4 STAN. L. REV. 9,973-1021 (1985).
77
State of Maharashtra v. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. v. Bombay
Municipal Corporation, AIR 1986 SC 80.
78
(2012) 8 SCC 537.
79
The jurisprudence on the retributive theories of justice lie in the notion that in committing an
offence, the criminal has violated the natural order and must make compensation to restore
such a natural order. David. A. Starkweather, The retributive theories of just deserts and victim
participation in plea bargaining, 3 IND. L. J. 67 (1992).
80
THOMAS HANSEN, WAGES OF VIOLENCE NAMING AND IDENTITY IN POST-COLONIAL
BOMBAY, 125, (2001).
81
Essa @Anjum Abdul Razak Memon (A-3) and Ors .v. The State of Maharashtra, through
STF, CBI Mumbai and Ors. etc., 2013 (3) SCALE 1.

16
the offence committed by him and was subsequently tried and convicted along
with other adult perpetrators under the Terrorist and Disruptive Activities Act
(TADA). The Court, upon convicting him stated that the gravity of his crime
indicated that he was certainly not a child in need of care and protection
82
,
which was the pre-requisite of being granted protection under the Juvenile
Justice Act, as stated in its preamble. The reasoning for the same is worth
analysing in the present context.
The Court employed two legal instruments to adjudicate upon this case.
Firstly, as has been previously established
83
, Article 142
84
recognises that the
plenary power of the Supreme Court exists independent of statutes with a view
to do complete justice between the parties and may be put on a different and
perhaps even wider footing than ordinary inherent powers of a court to prevent
injustice.
85
Secondly, in order to interpret the Act, the Court invoked the
Doctrine of Purposive Construction. This doctrine essentially states that the
interpretation of statutes should be such that the basic object and purpose of
the act in question should not be destroyed. The court combined the doctrine
with a joint reading of Articles 139-A (2)
86
and 142 of the Constitution of India,
Section 151
87
of the Code of Civil Procedure, thereby justifying the over-riding
effect of TADA over the Act. The court interpreted the meaning of the words
ends of justice, as mentioned in Article 139-A (2), in light of State Bank of
Patiala & Ors v.S.K. Sharma
88
where it was held that the interest of justice was
best served by following principles of natural justice and any technical
irregularity, which obstructed the guilty from being punished, should be
discarded and not be allowed to defeat the purpose of justice.
89

82
Id.
83
See e.g. Kalyan Chandra Sarkar v. Rajesh Ranjan @ PappuYadav and Anr, AIR 2005 SC 972.
84
INDIA CONST. art. 142: ..The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any cause or matter
pending before it....
85
Id.
86
INDIA CONST. art.139-A: (2) The Supreme Court may, if it deems it expedient so to do for
the ends of justice, transfer any case, appeal or other proceedings pending before any High
Court to any other High Court.
87
Civil Procedure Code 151 (1908) Nothing in this Code shall be deemed to limit or
otherwise affect the inherent power of the Court to make such orders as may be necessary
for the ends of justice or to prevent abuse of the process of the Court.
88
1996 AIR 1669.
89
State Bank of Patiala & Ors v. S.K. Sharma, 1996 AIR 1669: Justice means justice between
both the parties. The interests of justice equally demand that the guilty should be punished
and that technicalities and irregularities which do not occasion failure of justice are not

17
The current loopholes in the Act go beyond mere technical irregularities
and actually prevent the proper dispensing of justice. Hence, instead of
compelling the Supreme Court to use the great powers bestowed on it by
Article 142, the legislative changes recommended re-enforce the causes of
natural justice by ensuring that heinous offenders are removed from the
juvenile justice system as soon as they are convicted and all murderers or rapists
are justly punished without the possibility of any room for doubt.
VI. REBUTTING THE LACK OF AGENCY
ARGUMENT: A BRIEF PERSPECTIVE ON
NEUROSCIENCE
One of the core arguments forwarded by advocates of the provision of
blanket immunity to juveniles and exemption from the harm principle analysis
with respect to sentencing that was done in the preceding section is that the
human brain and consequently, decision-making capacity of an individual
continues to mature and develop till an individual reaches adulthood.
90
Due to
this, many proponents of a system that provides blanket immunity for all
juveniles state that the juveniles lack agency to commit crime. The pre-frontal
cortex, which regulates decision-making and the expression of emotions is one
of the last parts of the brain to fully develop and recent research has shown that
complete development can take place well beyond the adolescent years into
adulthood
91
Furthermore, the limbic system, which aids the processing and
management of emotions does not fully form in the adolescent years either.
92

As a result of these two factors, neuroscientists believe that the adolescent acts
differently with respect to varied situations of altered emotional stress.
93
These
situations have been broadly classified into two kinds. In situations of hot
cognition, individuals are generally more prone to taking undue risk due to the

allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve
the ends of justice. They cannot be perverted to achieve the very opposite end. That would
be a counter-productive exercise.
90
National Juvenile Justice Network, USING ADOLESCENT BRAIN RESEARCH TO INFORM
POLICY: A GUIDE FOR JUVENILE JUSTICE ADVOCATES (September 2012).
91
Id.
92
Wisconsin Council on Children and Families, Rethinking the Juvenile in Juvenile Justice: Implications
of Adolescent Brain Development on the Juvenile Justice System (March 2006).
93
As stated by Ronald Dahl: These changes manifest as mood swings, greater conflict with
parents, a greater tendency for risk-taking and rule-breaking and an increased draw towards
novel experiences and strong sensations. Ronald. E. Dahl, Adolescent Brain Development: A
Period of Vulnerabilities and Opportunities 1021 ANNALS N.Y. ACAD, SCI. 12-16 (2004).

18
high levels of emotional intensity generated by factors such as peer-pressure or
the presence of an uncontrolled environment such as the streets or the
playground, which prevents them from acknowledging the consequences of
their behavior.
94
Conversely, in situations of cold-cognition, where a controlled
setting such as the classroom or a family outing enables the individual to act
with less impulse and more rationale, volatile acts that may be committed at the
spur of the moment are generally prevented.
95
This nexus between recent
developments in neuroscience and juvenile agency was recognised by the
American Supreme Court in Roper v. Simon
96
, which abolished the death penalty
for juveniles in all circumstances. Proponents of using neuroscience in the
juvenile justice system argue that it is the most sophisticated and all-
encompassing means of explaining delinquent behavior and should be the
rationale behind negating the blameworthiness of the juvenile, resulting in the
provision of carte blanche immunity to any juvenile convicted of a crime from
the normal law without making any distinction between various offences.
97

Opponents of this theory however believe that basing the entire juvenile
justice system solely on neuroscience and the consequent lack of agency
argument, which has been stated in the preceding paragraph, would be
fallacious on three counts.
98
Firstly, the science of brain imaging is still in its
nascent stages.
99
There is no concrete scientific evidence to show that the
development of the pre-frontal cortex, known as myelination is equally
underdeveloped for all individuals below a certain age.
100
Secondly, biology may
not be the sole cause behind criminality and certainly, the fact that the under-
developed adolescent brain does not affect all juveniles equally can be intuitively
deduced by the fact that not every juvenile, despite similar brain development,

94
Wisconsin Council on Children and Families, Rethinking the Juvenile in Juvenile Justice: Implications
of Adolescent Brain Development on the Juvenile Justice System (March 2006).
95
Id.
96
543 U.S.551, 578 (2005).
97
See Emily Buss, Rethinking the Connect between Developmental Science and Juvenile Justice, 76 U. CHI.
L. REVIEW 493, 507 (2009); Jay D. Aronson, Neuroscience and Juvenile Justice, 42 AKRON L. REV.
917, 924 (2009).
98
Johanna Cooper Jennings, Juvenile Justice, Sullivan and Graham: How the Supreme Courts Decision
Will Change the Neuroscience Debate, 6 DUKE L. & TECH. REV. 8-10 (2010).
99
Jay D. Aronson, Neuroscience and Juvenile Justice, 42 AKRON L. REV. 917, 924 (2009).
100
B.J. Casey et al, The Adolescent Brain 1124 ANNALS N.Y. ACAD, SCI. 111,112,122; See also
State v. Garcia NO.CR 2005-422 (N.M. Dist.Ct.Dec.14.2007), Transcript 1 (testimony of
Gur). As there is a clear difference between the two genders with respect to the onset of
puberty, girls tend to mature faster than boys and should thus, logically, be held more
responsible than their male juvenile counterparts.

19
commits heinous crimes.
101
Thirdly and most importantly, the underdeveloped
brain does not and cannot negate the formation of specific intent or mens rea to
commit a crime, which marks the foundation of any form of criminal liability.
The proponents of the theory that juveniles lack agency do not contend that the
adolescent is incapable of forming specific intent and anticipating the
consequent harm but drawing from theories on neuroscience, they argue that
his technically sufficient mental state is substantively irrational.
102
For
example, the proponents would argue that when an adolescent commits
homicide, he may understand that his act will lead to the death of the victim
and that this death will cause a great deal of harm to society but may not be able
to determine the far-reaching consequences that may ensue upon the persons
death for his loved ones or the economic debilitation such death could
potentially cause. This notion leads to an unnecessarily deep conception of mens
rea and goes against the foundational principles of criminal law, which have long
established that a person is presumed to intend the consequences of his/her
actions. Mens rea may be categorised into four stages, namely volition, motive,
will and intention.
103
Volition is the legal term for the desire that leads a human
being to perform any conscious, voluntary act.
104
This desire is a means to
achieve a larger, more long-term goal, termed as motive.
105
Intention has been
defined as the object aimed at by the act caused by the volition.
106
It refers to
the immediate expectation from the consequences from the said act.
107
The
continuing desire for a particular consequence, which inspires numerous
volitions to perform acts that may lead to the consequence from time to time, is
referred to as will.
108

None of these definitions extend to the awareness or understanding of
the far-reaching consequences of the act so performed, and proponents of

101
Ibid.
102
Terry. A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAM
L. REV. 89,94 (2009); See also State v. Garcia NO.CR 2005-422 (N.M. Dist.Ct.Dec.14.2007),
Transcript 1, at 170-172 (testimony of Beyer). He essentially argued that children fail to see
the worst possible consequences of their actions or that there may be more than one possible
cause of action that he may resort to.
103
SYED SHAMSHUL HUDA, PRINCIPLES OF THE LAW OF CRIMES 170 (Eastern Book Company
2011).
104
Id. at 171.
105
P.S.A PILLAI, CRIMINAL LAW, 42 (2012).
106
107
Supra note 102.
108
Supra note 100.

20
granting blanket immunity are subverting due process by creating a phantom
fifth stage which extends to understanding the social implications and
consequences of ones act.
It is argued that a more nuanced approach towards the use of
neuroscience in the juvenile justice system be taken. While, for the reasons
mentioned above, neuroscience cannot serve as the basis for shaping legislative
policy to the extent of establishing that all juveniles lack the agency to commit
crime, evidence and expert analysis provided by neuroscientists may be applied
on an individual case-by-case basis to ascertain whether the specific individual
in question merits adult punishment when considered in conjunction with the
circumstances surrounding the crime and the state he or she was in at the time
of commission of the act, something that will be considered in the next section.
Certainly, recent developments in neuroscience do contribute, albeit marginally,
to our understanding that juveniles deserve a separate system for themselves by
establishing the general principle that juveniles differ from adults in their
responses to various situations. It cannot, however, serve as a justification for
extending protection of the juvenile law to all perpetrators of heinous crimes,
irrespective of the amount of harm the crime has caused because the research is
not concrete enough to warrant such a blanket legislative approval.
VII. RECOMMENDATIONS
Keeping the analysis on victims rights in mind and the recent trend of
cases in India where juveniles have emerged as super-predators
109
, as well as
the comparative study of juvenile justice legislations across jurisdictions, the
authors of this paper have proposed some amendments to the Juvenile Justice
Act. Apart from specific gory instances
110
that have fuelled public sentiment
against the provision of blanket immunity to the juvenile, the most recent
records compiled by the National Crime Records Bureau (NCRB) in 2013 show
that there has been an unprecedented 87% rise in the number of rapes

109
Mumbai: Police Files Charge Sheet in Shakti Mills Gang Rape Case (Oct 13, 2008) available at
http://ibnlive.in.com/news/mumbai-cb-files-chargesheet-in-the-2nd-gangrape-case-at-
shakti-mills/427190-3-237.html); 5 juveniles held for gang rape in Guwahati, The Hindu,
September 08, 2012, available at http://www.thehindu.com/news/national/other-states/5-
juveniles-held-for-gang-rape-in-guwahati/article5137332.ece Supra note 3.
110
Id.

21
committed by juveniles between 2007 and 2012 and a 500 per cent increase in
the kidnapping of females by minors.
111

It is argued that the Youth Criminal Justice Act and Massachusetts
Juvenile Justice Legislation are in line with the principles of natural justice and
successfully account for the rights of the victim without taking away from the
special status of the juvenile. The recommendations in this section are founded
on the provisions of those statutes but set in the context of the juvenile justice
system, as it has evolved in India.
A. LEGISLATIVE WAIVER
The Indian Penal Code states that a person above the age of twelve may
possess the requisite mens rea to commit crime.
112
Further, the Supreme Court
has explicitly recognised the fact that a child can only be convicted for his act if
it can be proved that he fully comprehended the nature and consequences of
his act.
113
The Court went on to say that it might be safely assumed that a child
below seven years of age cannot do so. In the case of children between the two
ages, the Court presumes that they are in the twilight zone and have not
reached the age of discretion either, though this presumption can be rebutted if
there is concrete evidence to the contrary, thereby leaving it up to the judge to
decide whether the child should be held liable for his action.
114
The authors
recommend that juveniles above the age of twelve convicted for culpable
homicide or murder under Sections 299 or 300 of the Indian Penal Code or for
rape under Section 375 be punished under the normal law without obtaining the
benefits of the juvenile justice system on the basis of their intention to cause
greater harm.
115

Any form of aggravated sexual assault should be placed in the category
of automatic legislative transfer as it involves the juvenile offender possessing a
degree of intention that is enough to violate the bodily integrity of another

111
National Crime Records Bureau, Crime in India 2012 (Jun 4, 2013).
112
See sections 83 and 84, Indian Penal Code. IPC holds that children till 12 years of age cannot
be held responsible for their actions, effectively meaning that from 12 years onwards,
children do have the capacity of forming mens rea to commit crimes.
113
Abdul Sattar v. Crown AIR 1949 Lah 451.
114
Hiralal Mallick v. State AIR 1977 SC 2236.
115
Add 16 (1) A- Provided, where a juvenile above the age of twelve is charged with culpable
homicide or rape as punishable under the Indian Penal Code, the provisions of this clause
will not apply and the accused may be punished as per the provisions of the general law.

22
human being. The Supreme Court, in Shri Boddhisatwa Goutam v. Miss Shubhra
Chakraborty
116
elucidated the gravity of rape as a crime by stating that,
It is only by her sheer will power that she rehabilitates herself in the
society which, on coming to know of the rape, looks down upon her in
derision and contempt. Rape is, therefore, the most hated crime. It is a
crime against basic human rights and is also violative of the victim's
most cherished of the Fundamental Rights, namely, the Right to Life
contained in Article 21. To many feminists and psychiatrists, rape is less
a sexual offence than an act of aggression aimed at degrading and
humiliating women.
117

The offenders may be tried by the Juvenile Justice Board because till
they are proved to be guilty of the heinous offence, they must be assumed to be
innocent and hence still possessing the right to use their special juvenile status
bestowed upon them through the Constitution and the provisions of this Act.
However, as soon as they are convicted of being a rapist or a murderer, the
sheer gravity of such conviction means that their special status and right to be
treated as a juvenile has been forsaken and hence, they must be punished as
adults. Furthermore, Section 19 of the Act, which mandates the erasing of all
records of juvenile offenders, should be amended to not include crimes
punishable with life imprisonment or death penalty under its ambit for the
purpose of detecting repeat offenders and not provide them immunity if it
appears that these recidivists do not seem to be responding to any rehabilitative
efforts.
118
It is imperative that the judicial system attempts to balance the
rehabilitative requirements of the juvenile with other necessary interests such as
the ensuring of accountability to the victim and restoration of the societal
equilibrium that has been upset by the offender. The minute chances of
rehabilitation and reformation that may exist in the case of juveniles who
commit heinous crimes need to be subverted to the larger social interest of
upholding the principles of natural justice.
119
Providing them the benefit of the
lenient juvenile punishment facilities detracts from the resources that may have

116
1966 AIR 922.
117
1966 AIR 922.
118
Add Section 19 2-B Provided for juveniles convicted of crimes punishable with life
imprisonment or death penalty, 19(2) shall not apply and the records shall not be erased.
119
Joseph. F. Yeckel, Violent Federal Offenders in Juvenile Justice, 51 WASH. U. J. URB & CONTEMP
L. 331-335 (1997).

23
been spent in other cases where rehabilitation is possible and hence causes a net
social loss.
B. JUDICIAL DISCRETION
For the juveniles aged twelve to seventeen charged with other violent
offences, the authors of this paper suggest that, as is done in several other
jurisdictions
120
, both the judiciary
121
and the Juvenile Justice Board should retain
a certain amount of discretion to impose punitive measures harsher than the
ones presently stipulated by the Act. Violent offences should be defined as
offences in the commission of which a young person causes, attempts to cause
or threatens to cause bodily harm.
122
The authors endorse this definition, and
have attempted to draw a logical equivalent with the Indian Penal Code. The
sections of the Indian Penal Code that this definition may attract include, but
are not limited to Grievous Hurt
123
, Robbery
124
and Dacoity
125
. The rationale
for advocating that judicial discretion be applicable to these offences as
opposed to an automated legislative waiver is that their definitions as given in
the Indian Penal Code cover a wide range of harm intended and harm caused.
For instance, Section 320 lays down that fracture or dislocation of a bone or a
tooth will also constitute grievous hurt. This could technically apply to
fracturing a finger, or punching out a milk tooth, both of which would not
constitute offences atrocious enough for a child to be subjected to adult
sentence, or blended sentencing. Hence, the authors advocate the buffer of
judicial discretion for violent offences not including rape, culpable homicide not
amounting to murder, and murder.
The introduction of provisions empowering the Juvenile Justice Board
to impose an adult sentence, or a blended sentence
126
provides them the
flexibility to ensure that those who do not deserve the benefit of or may not
benefit from the juvenile justice system are filtered out of it.

120
See Youth Criminal Justice Act (2003), Massachusetts General Laws, ch 199 (1998).
121
From District Court onwards.
122
Laid down by the Canadian Supreme Court. R. v. C.D.K.,(2005) 3 S.C.R. 668, 17.
123
Indian Penal Code, 320-328 (1860).
124
Indian Penal Code, 390-398 (1860).
125
Id.
126
Blended sentences allow for juvenile courts to impose adult sentences or extend their
juvenile punishments into early adulthood. See Cathi. J. Hunt, Note, Juvenile Sentencing: Effects of
Recent Punitive Sentencing Legislation on Juvenile Offenders and a Proposal for Sentencing in the Juvenile
Court, 19 B.C. THIRD WORLD L. J. 668, 670 (1999).

24
Whenever, a juvenile is charged with a crime, the presumption must be
that he is to be treated as per the Act (a presumption of juvenility). The judge
must be convinced beyond reasonable doubt that employing one of the three
proposed trial and sentencing options would make for a far more expeditious
disposal of justice. Certain denominators that the judicial authority must
consider before pronouncing sentence should be laid down in the Act itself.
These may include, but need not be limited to, the previous criminal record of
the offender, gravity, nature of the offence, age and maturity of the offender
and his/her personal amenability to any form of rehabilitative treatment and
circumstances under which the crime was committed.
127
The judge may also use
the expert testimony of neuroscientists to determine whether the act of the
child with respect to the given circumstances merits protection.
128

The provision of such discretionary powers on the judiciary acts as a
safety valve in miscellaneous cases where an offender may be a few months
short of his eighteenth birthday or may have already spent an unsuccessful term
in a juvenile correctional facility. It gives the judge the opportunity to use his
judicial mind to determine, on a case-by-case basis whether such offenders
deserve the protection of the juvenile justice system in our country.
VIII. CONCLUSION
There are many flaws in the Act as it stands today, most of them
originating from a single cause. By according primacy to the reformation of the
juvenile offender and focusing all its provisions in furtherance of his
rehabilitation and reintegration into society, the Act compromises public safety
and can be contended to be in contravention of principles of natural justice.
There being a pressing need for a more balanced approach, recommendations
have been made keeping in mind that the intention to cause harm to society is
an integral aspect of commission of any offence. It has been contended that
societys willingness to forgive the offender should therefore be the primary
factor in determining sentence, and that the possibility of his reformation
should only supplement it, instead of being the predominant consideration. The
authors do not suggest adopting an unnecessarily harsh approach towards
juvenile offenders, and the suggestions put forth do not contravene any

127
the Right Track, 33 U.S.F.L. 401,405 (1999).
128
Maroney, Supra note 95, at 164.

25
international treaties or norms. While acknowledging the fact that a juvenile
should be shielded from the criminal law because of his/her special status and
the inherent possibility for reform, it is imperative that the justice system in our
country and the public perception of it is not compromised for the sake of this
possibility. One outrageous act of murder or rape may spiral into a destruction
of public faith in the justice system if it is not checked properly. These incidents
have brought the juvenile justice laws to stage three of the trajectory of juvenile
justice legislations. This is why the authors have advocated the legislative waiver
for exceptionally heinous offences such as rape and murder, and have also
recommended the incorporation of judicial discretion on a case-by-case basis to
filter out the instances where reformation is not a possibility. Societys
willingness to forgive the offender is an integral aspect of determining sentence.
Hence, the entire system of juvenile justice essentially revolves around the
extent of the cost of reformation that we, as a society are willing to bear.


27
THE GREENING OF TRADE JURISPRUDENCE:
A STUDY ON THE CONFLICT AND RECONCILIATION
OF TRADE AND ENVIRONMENT
Nivedita Raju
*

Environmental protection was not a concern when the General Agreement on
Tariffs and Trade was drawn up after World War II. Until recently, trade policy-makers
and environmental officials pursued their work on separate tracks, rarely perceiving their
realms as interconnected. Today, environmental protection is a central issue on the public
agenda- and trade and environmental policies regularly intersect and increasingly collide.
1
It is
the sovereign right and duty of States to protect their citizens and territory with respect to the
environment, health, public morals and public order. Measures taken in the exercise of these
rights and duties can be protested against as being protectionist by affected parties. However,
States possess the policy space needed for the establishment of the measures necessary to protect
their territory. Therefore, when States trade with each other across borders, this intersection of
free trade and environmental protection inexorably instigates political differences. Essentially,
the WTO law envisages non-economic exceptions to free trade which form the basis for
protection of environment within the framework of the General Agreements on Tariffs and
Trade (GATT). These exceptions include the protection of human, animal and plant life and
health, the conservation of exhaustible natural resources, sanitary and phytosanitary (SPS)
measures and technical barriers to trade (TBT). This paper will study the dawn of conflict
between trade law and environment by introducing the essential trade principles under GATT
in Section I, following with cases in Section II arising out of disputes between countries to
impose trade restrictions with the objective of protection of the environment. Restrictions in the
form of sanitary and phytosanitary (SPS) measures and technical barriers to trade (TBT) will
also be dealt with in this section, while Section III will deal with the conflict between GATT
and Multilateral Environmental Agreements (MEA). In Section IV, the author will strive
to propose recommendations before concluding with final remarks in Section V of the paper.

*
IV
th
year, L.L. B., Gujarat National Law University, Gandhinagar.
1
DANIEL C. ETSY, GREENING THE GATT: TRADE, ENVIRONMENT AND FUTURE, Institute for
International Economics, 9 (1994).

28
I. INTRODUCTION ESSENTIAL TRADE
GOVERNING PRINCIPLES UNDER GATT
GATT was established in response to growing international economic
interdependence. Globalisation of trade translated into the globalisation of
effects of trade incentives as well as restrictive measures. Any trade favouritism
or hostility shown towards one country or any protectionist measure adopted
for domestic products meant trade losses or gains for other countries. To create
a level playing field where trade between and within countries is regulated by a
common set of principles thus became a necessity. This led to the formation of
GATT which laid down the following principles:
Article III
2
of GATT mandates that all foreigners and local citizens be
treated equally, that is to say that both imported and locally-produced products
must be treated on the same footing. This National Treatment principle
essentially prohibits protectionist measures which may give leverage to domestic
products over like imported products. The principle of National Treatment is
symbiotic with the Most-Favoured Nation (MFN) principle, under Article I,
which states that a country, which has been accorded MFN status may not be
treated less advantageously than any other country which also has an MFN
status by the promising country. This principle cautions against such measures
which may have the effect of promoting one imported product from one
country over another like imported product from another country. MFN
relationships extend to reciprocal bilateral relationships following
both GATT and WTO norms of reciprocity and non-discrimination. The
principles of National Treatment and Most-Favoured Nation, therefore, form
the cornerstones of GATT and WTO legislation.
Now addressing Article XI, the GATT expresses the General
Elimination of Quantitative Restrictions, and prohibits the imposition of
restrictions apart from duties, taxes or other charges under Clause 1
3
while also
laying out several exceptions in specific scenarios under Clause 2. However,

2
National Treatment on Internal Taxation and Regulation, General Agreement on Tariffs and
Trade, Apr 15, 1994, art. III, part II, 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).
3
No prohibitions or restrictions other than duties, taxes or other charges, whether made
effective through quotas, import or export licences or other measures, shall be instituted or
maintained by any contracting party on the importation of any product of the territory of any
other contracting party or on the exportation or sale for export of any product destined for
the territory of any other contracting party. General Agreement on Tariffs and Trade, Apr
15, 1994, Article XI (1), 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).

29
Article XX on General Exceptions contains exceptions for the fulfillment of
non-economic objectives. Article XX (b) and XX (g) state that trade measures
can be taken for reasons of protection of human, animal or plant life or health
and for conservation of exhaustible natural resources. Nevertheless, these
provisions for regulatory measures reel in apprehension of misuse as they
appear to be tools of protectionism of the domestic industry or as modes of
discrimination in products from various States.
These apprehensions are addressed by the Chapeau to Article XX
which emphasises that the measures provided by the Article will not be applied
in a manner that would constitute a means of arbitrary or unjustifiable
discrimination between States which possess the same conditions, or a veiled
hindrance to international trade. There is a fixed method of the application of
Article XX. The procedure is two-tiered; first, the provisional justification of
the measure under the individual sub-paragraphs of Article XX of GATT is
applied, followed by the appraisal of the measure under the Chapeau
4
. As the
measures under Article XX are exceptions, the onus of justification is on the
parties who invoke it. The burden is upon the invoking party both to prove the
sub-paragraph requirements, as well as to prove the chapeau requirements.
5
A
country seeking protection under Article XX first has to prove that the trade
measure objected to, is for the protection of human, animal or plant life or
health. The second step is to show that the measure is necessary. To pass the
test of necessity, the country has to establish that there should not have been an
alternative that was reasonably available that was less inconsistent with GATT
legislation. The country consequently has to first ascertain whether an
alternative measure is reasonably available and must then determine the
consistency of this alternative provision with other GATT provisions. If no
such alternative measure exists, then it is said that the measure taken by the
country was necessary.
This test was applied by the GATT in Thailand-Cigarettes
6
wherein the
Thai government imposed restrictions on foreign cigarettes under the premise
of Article XX (b). The GATT Panel, while accepting Thailands contention that
smoking is injurious to health and therefore well within the ambit of Article XX

4
STEFAN ZLEPTNIG, NON-ECONOMIC OBJECTIVES IN WTO LAW, Vol.1, 112 (2010).
5
SIMON LESTER & BRYAN MERVURIO, WORLD TRADE LAW: TEXT, MATERIALS AND
COMMENTARY, 382, (Hart Publishing, 2010).
6
WTO Appellate Body Report, Thailand - Customs and Fiscal Measures on Cigarettes from
the Phillipines, Jul 15, 2011, WT/DS371/AB/R.

30
(b), ruled out the necessity of the measure, because there were other methods
which Thailand could have reasonably used, for instance banning positive
cigarette advertisements and updating ingredient disclosure regulations. This
rigid least trade restrictiveness test developed and applied by GATT Panels,
especially in Thailand-Cigarettes has been criticised as imposing too many
constraints on domestic regulation.
7

However, a new feature of requirement was recently developed in
Brazil-Retreaded Tyres
8
, where the Brazilian government had imposed import
restrictions on tyres following the health risks posed by unused tyres as
breeding grounds for mosquitoes. The Appellate Body (AB) held that no
alternative measure put forth by the European Communities (EC) could
substitute Brazils import ban. They said that in order to justify an import ban
under Article XX (b), a panel must be satisfied that it brings about a material
contribution to the achievement of its objective. This new feature is a great
stride of the WTO towards environmental protection as it allows a country to
design its trade measures such that they foresee the applicability of policies of
sustainable development in light of environmental protection.
Further, Article XX (g) allows parties to adopt measures inconsistent
with the provisions of the GATT if they relate to the conservation of
exhaustible natural resources, provided such measures are made effective in
conjunction with restrictions on domestic production or consumption. The
requirements that a country must fulfill in order to invoke this exception are:
- the objective or measure has to be for the conservation of exhaustible
natural resources
- the measure must relate to the conservation of exhaustible natural
resources
- the measure must be in conjunction with restrictions on domestic
production or consumption.
9

The landmark case US-Gasoline
10
laid down a test to determine whether
a measure is related to the objective sought to be furthered. The panel said that

7
STEFAN ZLEPTNIG, NON-ECONOMIC OBJECTIVES IN WTO LAW, Vol.1, 112 (2010).
8
WTO Appellate Body Report, Brazil - Measures Affecting Import of Retreaded Tyres, Aug
29, 2008, WT/DS332/AB/R.
9
PETER VAN DEN BOSSCHE, THE LAW AND POLICY OF THE WORLD TRADE ORGANISATION:
TEXT, CASES AND MATERIALS, 502 (Cambridge University Press, 2005).

31
the crux of the matter lay in determining if the measure and policy have a
substantial relationship. The two should therefore be inherently linked. The
view of the panel was further clarified in Canada-Herring and Salmon,
11
where it
was held that relating to means that the measure must be primarily aimed at
the objective.
It is concluded therefrom, that while the sanctity of the MFN and
National Treatment principles cannot be easily disturbed, countries are
increasingly relying on the exception clauses to further their environmental
protection aims. The following section will highlight the dilemma created by
this increasing trend through case studies, which will also bring to the fore the
creative manner in which the dispute settlement bodies are interpreting the
GATT principles to accommodate environmental concerns, wherever possible.
II. CASE STUDIES
1. Tuna-Dolphin I And II
12

These two disputes arose in light of the United States embargoes on
yellowfin tuna and yellowfin tuna products imported from Mexico and other
countries that used purse-seine fishing methods which resulted in an alarming
increase in the death of dolphins. Purse-seine fishing is a method wherein there
are two fishing boats, primarily the seine skiff, which goes out to encircle the
school of fish and then deploys a net around them for capture, finally returning
to the main fishing vessel to complete the circle parameter. The net is then
reeled in with the entire contents of fish for processing. The unfortunate
predicament that evolved with this method is that innumerable dolphins, which
tend to swim above schools of yellowfin tuna in the Eastern Pacific Ocean,
would end up in the nets as incidental casualties. This led to the US ban on tuna
imports from Mexico, which had the largest tuna product industry at the time,
via the Marine Mammal Protection Act of 1972 (MMPA). Section 101(a)(2)(B)
of the Act stated that the import of yellowfin tuna harvested using purse seine

10
WTO Panel Report, United States - Standards for Reformulated and Conventional Gasoline,
May 20, 1996, WT/DS2/R, as modified by Appellate Body Report WT/DS2/AB/R, DSR
1996:I, 29.

11
GATT Panel Report, Canada - Measures Affecting Exports of Unprocessed Herring and
Salmon, Mar 22, 1988, BISD 35S/98.
12
GATT Panel Report, United States - Restrictions on Imports of Tuna, DS21/R, Sep 3,
1991,unadopted, BISD 39S/155.

32
nets in the Eastern Pacific was prohibited unless the government of the
importing country could show that it had a program comparable to the average
rate of taking
13
in United States to reduce marine mammal by-catch. The onus
was on the country requesting a finding to show through documentary evidence
that taking rates are comparable. Mexico refused to abide by the new standards
of modifying their fishing techniques, and so no products were accepted from
the origin of Mexico into the United States.
Mexico brought a complaint through GATT Articles III, XI and XII
14

claiming inconsistency of the MMPA product ban with WTO legislation,
bringing to the forefront the debate over Process and Product Methods (PPMs)
on the regulation of international trade on the basis of production methods or
in this case, the technique used to harvest tuna. The issue with PPMs was that
the actual process used is not relevant if the end-product is the same. This also
showcases how developing countries were growing increasingly frustrated with
the inclusion of PPMs in the WTO, as they feared that this would help
industrialised countries gain advancements in environmental and technological
bases and widen the disparity between rich and poor nations. Mexico argued
that the MMPA was discriminatory in nature against like products based on
their PPMs. This also indicated a violation of Article XI in the prohibition of
non-tariff restrictions or quotas which limit import/export licenses.
The U.S. refuted Mexicos contention that they had defied the National
Treatment obligation under Article III, as it applied fundamentally the same
standard to imported tuna to like domestic tuna. This contention was hollow, as
there was no possible way Mexican fishermen could know the acceptable
incidental taking rate for their fleet until after the U.S. fleet had finished fishing.
This could have formed the basis for the MMPA violation of the National
Treatment standard, yet the GATT panel reached a broader holding. The
hypothesis of the U.S. argument lay in the fact that different treatment of tuna
based on how they were caught, does not discriminate between them, because
products produced by different methods are not like products. This was
rejected by the panel. In its view, differences in the way that the tuna were
caught could not possibly affect tuna as a product. Mexico further claimed that
the exceptions under Article XX (b) and (g) were not met, focusing on the fact

13
The term take means to harass, hunt, capture, kill or attempt to harass, hunt, capture or
kill any marine mammal. Marine Mammal Protection Act, 3(13) (1972).
14
Non-Discriminatory Administration of Quantitative Restrictions, General Agreement on
Tariffs and Trade, Apr 15, 1994, art. XIII, 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).

33
that Article XX cannot be applied outside the jurisdiction of the US. Agreeing
with this argument, the panel ruled in favour of Mexico.
The panel interpreted GATT in a manner that implied that any law
restricting imports on the basis of their process or production method would
necessarily violate Articles III and XI unless the PPM affected the physical
characteristics of the product. The outcome of Tuna Dolphin I eventually fell in
favour of Mexico.
Tuna-Dolphin II
15
was filed by plaintiffs, the European Economic
Community and the Netherlands against the US in the claim that the latter did
not possess any right to impose embargoes on intermediary nations. The
former argued that the intermediary nation embargo constituted a quantitative
restriction and thus violated Article XI of the GATT. For intermediary nations,
the MMPA outright banned the import of tuna if there was no proof of
certification of zero import of yellowfin tuna/tuna products from primary
nation embargo. The US tried to seek protection under Article XX (b) and (g)
relating to the conservation of an exhaustible resource and necessary to
protect the life and health of dolphins.
16

The intermediary nations contended that the species requiring
conservation had to be within the jurisdictional territory of the enforcing nation
who imposed said measure. More importantly, they did not find dolphins an
exhaustible natural resource. Finally, they contended that US measures did
not fall under the necessity imposed by Article XX (b). Under Articles III and
XI, the panel ruled in favour of the EEC and the Netherlands, but regarding
jurisdiction, in favour of the US because nothing in the GATT was found to
amount to the conservation of resources mandatorily being in the jurisdictional
territory of the country enforcing the measure.
The examination of Article XX (b) and (g) by the panel led to the
conclusion that the banning of tuna would not in itself conserve dolphins, as
only changes in actual policy could accomplish this and this was not the original
purpose of the GATT. The GATT was meant to deal with products of member
states, not their processes. In addition to this, the panel concluded once again,
that the US measures for dolphin protection were not necessary meaning they

15
GATT Panel Report, United States - Measures Concerning the Importation, Marketing and
Sale of Tuna and Tuna Products, WT/DS381.
16
John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, HARV.
ENVTL. L. REV., Vol. 28 (2004).

34
were not indispensable or unavoidable. The only way to protect dolphins
would be for intermediary nations to change policies, which was not the
intention of the GATT.
The scheme employed by the US in attempting to force primary and
intermediary nations in banning tuna based on whether the practices of the
latter were comparable to the former appeared as though the US was forcing
other nations to adopt their fishing policies which went against the objectives of
GATT. Hence, the panel ruled against the US again.
The Tuna-Dolphin disputes resulted in the manifestation of several US
laws which restricted the import of products harvested in an environmentally
dangerous method, capable of being incompatible with Articles I, III and XI of
GATT. Much to the alarm of environmentalists, the restrictions on imports
founded on the characteristics of products as opposed to their PPMs seemed to
take precedence. This led to the proposal by environmental critics of the more
practical, moderate school to broaden the scope of likeness and revitalise the
environmental exceptions in Article XX.
2. Asbestos - France
17

Canada challenged the French ban on the manufacture, sale and import
of products containing asbestos. The WTO panel accepted Canadas argument
that asbestos products are like certain substitutes for those products made in
France, and that banning imports of asbestos products therefore provided them
less favorable treatment in violation of the national treatment standard in
Article III of GATT.
18
The most significant stride in the analysis by the panel
was the decision not to account for the relative risk to human health of the
asbestos products and of the substitute products in determining whether they
were like one another.
19
It said that because the protection of human life and
health is covered by Article XX (b), introducing the protection of human
health and life into the likeness criteria would allow the Member concerned to
avoid the obligations in Article XX, particularly the test of necessity for the
measure under paragraph (b) and the control exerted by the introductory clause

17
WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-
Containing Products, Sept 18, 2000, WT/DS135/R.
18
Id. at 8.154 - 8.158.
19
John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, 30, HARV.
ENVTL. L. REV., Vol. 28 (2004).

35
to Article XX.
20
The Tuna-Dolphin mentality of the panel was mirrored in this
decision, and the panel followed the characteristics over PPMs slant. However,
in a landmark decision by the Appellate Body, the panels analysis was
overturned in light of the highly significant physical difference (between
asbestos, which is carcinogenic, and substitutes, which are not, at least to the
same extent) and that it was inexcusable how it was not considered in the
examination of the physical properties of a product as part of establishing
likeness under Article III.
The decision thus, opened the door for environmental considerations to
be taken into account in determining whether products are like. The panel
determined that it satisfied Article XX (b) because it was necessary to protect
human life or health.
21
Although the Appellate Bodys decision that the ban
did not violate Article III meant that it did not need to reach Article XX, it
nonetheless upheld the panels interpretation of XX (b) on appeal. Canadas
contentions were that the asbestos ban was not necessary as France had the
option of pursuing alternatives which were less inconsistent with GATT and
strictly controlled dangerous use of asbestos. Post Tuna-Dolphin, environmental
critics had greatly feared just this form of argument that tribunals might uphold.
However, the Appellate Body said that France could not reasonably be
expected to employ any alternative measure if that measure would involve a
continuation of the very risk that [its ban] seeks to halt. Such an alternative
measure would, in effect, prevent France from achieving its chosen level of
health protection.
22
The Appellate Body emphasised that all WTO Members
have the right to determine the level of protection that they consider
appropriate in a given situation, and noted that Frances chosen level of health
protection was a complete halt in the spread of asbestos-related health risks.
23

The panel in Asbestos accordingly applied an interpretation of Article XX
(b) such that if an alternative measure which the party could reasonably be
expected to employ and which is not inconsistent with other GATT provisions
is available to it and if no GATT-consistent measure is reasonably available,
the party is bound to use, among the measures reasonably available to it, that

20
Id.
21
Supra note 17.
22
WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and
Asbestos-Containing Products, Mar 12, 2001, WT/DS135/AB/R.
23
Id.

36
which entails the least degree of inconsistency with other GATT provisions.
24
,
ruling in a way that quelled the fears of environmental critics.
A. DISPUTES UNDER SANITARY AND PHYTOSANITARY (SPS)
AND TECHNICAL BARRIERS TO TRADE (TBT) MECHANISMS
The Appellate Body can be lauded for its interpretation of minimum
standards of TBT and SPS Agreements such that they are consistent with
moderate proposals on the function of international standards, the right to set
domestic levels of protection, and the burden of proof. This can be seen by the
growing trend to overrule panel decisions that would have denied governments
much leeway for consideration of non-trade interests.
3. EC - Hormones
25

Most beef produced by the US is treated with hormones while EC
produced beef is not. The US claimed that the ban violates the SPS Agreement.
The panels interpretations of the Agreement effectively reinforced the fears of
environmentalists. First, the panel said that the Agreements requirement that
parties base their SPS measures on international standards means that a measure
needs to reflect the same level of sanitary protection as the international
standard.
26
It should be noted that the panel did acknowledge that the
Agreement provided that a party may adopt a more protective measure than the
international standard if it did so in accordance with the specified risk
assessment procedure. Yet the panel called this provision an exception to the
general requirement that parties adopt the international standard. The panel
thereupon concluded that if a complaining party showed that the general
requirement is not met and the domestic measure is more protective than the
international standard, the burden of proof shifts to the defending party to
demonstrate that it adopted its measure in accordance with the risk assessment
procedure.
27

The Appellate Body invalidated these interpretations. It rejected the
panels view that the SPS Agreement requires parties to adopt the same level of

24
Id.
25
WTO Appellate Body Report, European Communities - Measures Concerning Meat and
Meat Products, Jan 16, 1998, WT/DS26/AB/R.
26
WTO Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones),
WT/DS26/R/USA.
27
Id.

37
protection as international standards, and declared that even if a domestic
measure is not based on an international standard, the burden of proof remains
on the complaining party to show that the measure is inconsistent with the
Agreement.
28
The Appellate Body affirmed that the Agreement requires
domestic measures with higher levels of protection than relevant international
standards to be based on a risk assessment,
29
but, on the recognition of the fact
that scientific opinions can differ, the Appellate Body said that parties need not
only adopt measures consistent with the mainstream view in the scientific
community. Rather, the results of the risk assessment must sufficiently
warrantthat is to say, reasonably supportthe SPS measure at stake. The
requirement that an SPS measure be based on a risk assessment is a
substantive requirement that there be a rational relationship between the
measure and the risk assessment. The difficulty for the EC was that the
scientific risk assessments of the banned hormones had all concluded they were
safe. Since the risk assessments did not reasonably support a ban, the Appellate
Body upheld the panel conclusion that the ban violated the SPS Agreement.
30

4. EC - Sardines
31

Subsequently, the role of international standards under the TBT
Agreement came under the judicial microscope before the panel in European
Communities-Trade Description of Sardines. Like the SPS Agreement, the TBT
Agreement mandates that parties use relevant international standards as a basis
for their domestic TBT measures except when the international standards
would be an ineffective or inappropriate means for the fulfillment of the
legitimate objectives pursued.
32
The panel interpreted the language as a basis
for in accordance with the decision of the Appellate Body in Hormones, but, as
in Hormones, treated the requirement to use international standards as the
general rule to which the option of adopting more protective domestic
standards is an exception, thereby placing the burden of proof on the party
defending a measure more protective than a relevant international standard to
show that the international standard would be ineffective or inappropriate to

28
WTO Appellate Body Report, EC - Measures Concerning Meat and Meat Products
(Hormones), Jan 16, 1998, 104, 109, 165 WT/DS26/AB/R.
29
Id.
30
Id.
31
WTO Appellate Body Report, European Communities - Trade Description of Sardines, Oct
23, 2002, WT/DS231/AB/R., DSR 2002:VIII, 3359.
32
Id.

38
meet the legitimate objectives of the party. This was reversed by the Appellate
Body on the basis of its reasoning in Hormones and again concluded that the
burden of proof is on the complaining party. Specifically, the burden is to show
that the international standard was not used as a basis for the domestic measure
and that the international standard is effective and appropriate to fulfill the
legitimate objectives pursued by the defending party through the challenged
measure.
33

5. US - Gasoline
34

The US-Gasoline Dispute was the first dispute that engaged sustainable
development. Following the Ozone Convention of 1985 and the Montreal
Protocol of 1987, the US Environmental Protection Agency promulgated a rule
on the composition and emission effects of gasoline aimed at the reduction of
atmospheric pollution. The regulation contained two baseline regulations the
first to be applied to domestic refiners and the stricter regulation applied to
importers and blenders of gasoline. Brazil and Venezuela contended that the
rule was against WTO principles of National Treatment and the TBT
Agreement. The US refuted the same, claiming consistency with WTO
principles and sought protection under the invocation of Article XX (b), (d)
35

and (g). The panel also found that conserving natural resources was not the sole
purpose of the two differing baselines prescribed by the US, thus nullifying
protection under Article XX (g) and upheld that the measures taken by the US
were not justified. On appeal, this decision on Article XX (g) was reversed
because the Appellate Body found that the baseline regulations did indeed fall
within the scope of Article XX (g).
36
The Panel agreed that clean air could be
considered an exhaustible natural resource since it is both a resource (it had
value) and ...natural. However, the measure was still not justified by Article XX

33
Id.
34
WTO Panel Report, United States - Standards for Reformulated and Conventional Gasoline,
May 20, 1996, WT/DS2/R, as modified by Appellate Body Report WT/DS2/AB/R, DSR
1996:I, 29.
35
General Exceptions: necessary to secure compliance with laws or regulations which are not
inconsistent with the provisions of this Agreement, including those relating to customs
enforcement, the enforcement of monopolies operated under paragraph 4 of Article II and
Article XVII, the protection of patents, trade marks and copyrights, and the prevention of
deceptive practices. General Agreement on Tariffs and Trade, Apr 15, 1994, Article XX (d),
1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).
36
WTO Appellate Body Report, United States - Standards for Reformulated and Conventional
Gasoline, May 20, 1998, WT/DS2/AB/R.

39
because the discriminatory aspect of the measure constituted unjustifiable
discrimination and a disguised restriction on international trade under the
chapeau of Article XX.
37

6. US - Shrimp
38

The US - Shrimp dispute showcases the future potential for cases to
pervade the sphere of WTO law. The essence of the case lay in the US
prohibition of shrimp harvesting by methods that were harmful to sea turtles.
Similar to Tuna - Dolphin, it also prohibited the import of shrimp unless the
harvesting nation was certified as giving a regulatory programme for the
conservation of sea turtles. The US effected regulations which prohibited the
import of shrimp from countries that were not certified as having comparable
conservation policies for endangered sea turtles or as coming from shrimp
boats with fishing devices which were capable of excluding turtles, also called
turtle excluder devices. The US contended that its measures were justified
under Article XX (b) and (g) as Article XX did not have jurisdictional
limitations nor limitations on the locations of animals or natural resources to be
protected and conserved. The Appellate Board primarily held that sea turtles
constituted exhaustible natural resources within the meaning of Article XX and
the US measure related to the conservation of an exhaustible natural resource
thereby sanctifying the purpose of Article XX (g). The subject scrutinised by the
Appellate Board was whether the measures taken were compatible with the
Chapeau of Article XX and if the measures could be seen as unjustifiably
discriminatory, as this would push them far beyond the applicable boundaries
of Article XX. The Appellate Board stated that discrimination occurs either
when a country where the same conditions apply is treated differently, or when
the application of the measure in question does not allow for an inquiry into the
appropriateness of the regulatory programme for the conditions prevailing in
the exporting countries. The US failed to enter into negotiations to conclude
bilateral or multilateral agreements for the protection and conservation of sea
turtles. This was a fundamental pre-cursor to the enforcement of import
prohibition. Therefore, it was seen as unjustifiably discriminatory and the
import prohibition was not permissible.

37
Id.
38
WTO Appellate Body Report, United States Import Prohibition of Certain Shrimp and
Shrimp Products, Mar 3, 1973, WT/DS58/AB/R.

40
While ultimately reaching the same finding on Article XX as the Panel,
the Appellate Body, however, reversed the Panel's legal interpretation of Article
XX with respect to the proper sequence of steps in analysing Article XX. The
proper sequence of steps, as per the Appellate Body would be to first assess
whether a measure can be provisionally justified as one of the categories under
paragraphs (a)-(j), and, then, to further appraise the same measure under the
Article XX chapeau.
It can thus be safely concluded that the AB has been responsive to the
need of protecting environment and hence open to upholding trade restrictive
measures which meet the criteria laid down in general exceptions. However,
one common feature among all the cases mentioned above is that the AB has
stressed on justification of the measure so imposed. If an equally efficacious
but less restrictive method is available, the measure so imposed has been struck
down. On the contrary, if the consequence on health, natural resources, plant
and animal life is so severe that waiting for an alternative is not justified, then
the measure has been upheld. One such alternative method proposed is for
countries to enter into Multilateral Environmental Agreements, which diverge
from GATT principles but are increasingly gaining significance.
III. THE GATT-MEA CONFLICT
Multilateral Environmental Agreements (MEAs) are agreements entered into by
three or more parties and form an integral part of global framework. MEAs
conflict with free trade on a routine basis. The nature of these provisions
appears to directly contradict WTO legislation. Another significant feature of
MEAs is their capacity to authorise trade in a specific product between its
parties, but ban trade in the same product with countries that have not signed
the agreement. This directly opposes the Most Favoured Nation-principle of
GATT. This conflict of the objectives of the MEAs and the GATT has
remained one of the key issues in the trade-environment debate since the early
1990s.
39

1. Trade Restrictions in MEAs
The term trade measures could mean reporting requirement, labeling
or other identification requirement, export and/or import bans, market

39
Eric Neumayer, Trade Measures in MEAs and WTO Rules: Potential for Conflict, Scope for
Reconciliation, 55 (3) AUSSENWIRTSCHAFT, 2 (2000).

41
transformation measures etc.
40
Trade measures that are explicitly described in
the MEA or in subsequent decisions of the parties to the MEA and which are
mandatory obligations applied by all parties are called specific measures.
41

Measures which are not expressly described are also applied by parties to
comply with MEA objectives and are called non-specific measures. Trade
measures are incorporated into MEAs to monitor and control trade in products
where the uncontrolled trade would lead to or contribute to environmental
damage. This may extend to a complete exclusion of particular products from
international trade; to provide a means of complying with MEAs requirements;
to provide a means of enforcing the MEA, by forbidding trade with non-
parties.
42
Prominent MEAs are briefly examined below.
2. Montreal Protocol, 1987
It contains rigorous trade restrictive measures applicable to both parties
and non-parties to the MEA. The Protocol restricts trade in ozone depleting
substances as well as trade in products that contain such substances. The trade
restrictive measures have played a major role in reducing the production and
consumption of ozone depleting substances throughout the world.
43
By making
the trade measures of the Protocol applicable to non-parties as well, the MEA
has addressed the free-rider problem that would have arisen from the non-
parties being able to circumvent them.
44
The Protocols trade measures against
non-parties oppose the GATT principles of Most Favoured Nation, National
Treatment and the Elimination of Quantitative Restrictions. The Protocol also
uses PPM-trade measures on the use of ozone-depleting substances. However,
the measures can be protected under Article XX, as the ozone layer is an
exhaustible natural resource and its depletion adversely affects human, animal
and plant life and health; there would not be any arbitrary or unjustifiable
discrimination since the Montreal Protocol is a multilateral instrument based on
an international consensus relating to the scientific assessment of what is
necessary to protect the ozone layer. Moreover, it contains provisions that

40
DUNCAN BRACK & KEVIN GRAY, MULTILATERAL ENVIRONMENTAL AGREEMENTS AND
THE WTO A REPORT, The Royal Institute of International Affairs and the International
Institute for Sustainable Development, 4 (Sep 2003).
41
Id. at 5.
42
Id. at 6.
43
Robyn Eckersley, The Big Chill: The WTO and MEAs, GLOBAL ENVIRONMENTAL POLITICS,
MIT, 14 (May 2004).
44
Working Paper, Robert Van Slooten, The Case of the Montreal Protocol, TRADE AND
ENVIRONMENT: PROCESSES AND PRODUCTION METHODS, OECD, 89 (2004).

42
exempt non-parties from trade restrictions if they comply with the control
measures under the Protocol and hence there is no arbitrary and justifiable
discrimination between countries where the same conditions prevail. There has
never been a GATT or WTO challenge to the Protocols trade measures.
45

3. Convention on International Trade in Endangered Species (CITES)
The CITES contains restrictions on the import and export of various
threatened or endangered species listed in its appendices. It has a number of
enforcement-related trade measures, directed against non-complying parties and
non-parties. At the outset, the Secretariat of the CITES endeavored for mutual
support with the WTO, and adopted a five-year strategic plan which included
the objective of ensuring continuing recognition and acceptance of CITES
measures by the WTO and ensuring mutual support in decision-making
processes.
4. Cartagena Protocol
There is a complete absence of conclusive scientific evidence
concerning the risks to humans, animals and plants associated with the
transplantation of genes from one species to another. This doubt has sparked
the controversial political debate on who should bear the burden of proof and
by what standards. The Cartagena Protocol, 2000 is an effort to resolve
questions related to the trans-boundary movement of living modified organisms
(LMOs). The Protocol places restrictions on the trans-boundary movement,
transit, storage and handling of certain LMOs which are meant to be liberated
into the environment. It requires the parties to apply the precautionary principle
in case of scientific uncertainty.
46
The Protocol, which thus serves to restrict the
free flow of trade in certain LMOs, may be applied against both parties and
non-parties. However, trade in the biotechnology industry is also governed by a
number of WTO Agreements- most significantly, the SPS Agreement. The SPS
Agreement, extending to LMOs as well, enables parties to restrict or regulate
trade in order to protect human, animal and plant safety, provided such
measures pass the usual tests of non-arbitrariness, non-discrimination and least
trade restrictiveness. Yet the risks covered by the SPS Agreement are not as
wide-ranging as those under the Cartagena Protocol, resulting in a significant

45
Supra note 43 at 15.
46
Cartagena Protocol, Jan 29, 2000, art. 1, 10 (6) and 11 (8), 2226 U.N.T.S. 208; 39 ILM 1027
(2000); UN Doc. UNEP/CBD/ExCOP/1/3, at 42 (2000).

43
overlap of the two. Difficulties spring up when the risk assessment provisions
of the Protocol operate differently from the evidentiary rules of the WTO-SPS
Agreement. The Protocol enables the importing party to apply the
precautionary principle when carrying out its own risk assessment prior to the
import of LMOs while the SPS Agreement allows countries to set their own
standards but provides that the measures should be based on objective and
accurate scientific data. The SPS Agreement only permits the precautionary
principle to be applied on an interim basis while a risk assessment is being
conducted
47
whereas the Protocol contains no such restriction.
48
Controversy in
this context is not in any way a far-fetched matter as the US is a major producer
and exporter of genetically modified products and will hence be ever-anxious to
get rid of restrictions to the export markets.
The decision in Shrimp-Turtle suggests that the Appellate Board may
uphold the Protocol if a dispute involving the measures under the Protocol and
the WTO agreements come before it. However, this outcome is not assured
and members of the Protocol have to conduct risk assessment of LMO
products of the US while toeing the fine line of political balance so as to avoid
the US challenging the WTO.
5. Convention on Biological Diversity (CBD)
The CBD does not sanction specific trade measures, though several of
the issues it covers such as access and benefit-sharing arrangements, alien
species, incentive measures for the conservation and sustainable use of
components of biological diversity, provisions concerning knowledge,
innovations and practices of indigenous and local communities, impact
assessment, liability and redress, sustainable use, agricultural biodiversity may
impact trade. The CBD also lacks any language relating it to the GATT or
WTO. Article 22 specifies that the CBD is not to affect the rights and
obligations deriving from existing international agreements, unless those rights
and obligations would cause serious damage or threat to biological diversity.
The Convention predated the WTO agreements that came into force at the end
of the Uruguay Round, rendering this savings clause inapplicable, and leaving
any potential conflict to be resolved under customary international law. The
CBD does not predate the GATT itself however, so arguably the WTO dispute
settlement bodies could end up interpreting what constitutes serious damage or

47
SPS Agreement, Apr 15, 1994, Article 5 (7), 1867 U.N.T.S. 493 .
48
David Wirth, MEAs in the Trade- Environment Debate, 3 B. U. L. REV., 38 (2004).

44
threat to biodiversity in the case of a challenge under the WTO. Article 15 of
the CBD permits states to limit or place conditions on access to genetic
resources, which could theoretically be inconsistent with the WTO, though
dependent on their design and treatment of foreign companies differently than
domestic companies. Article 27.2 of TRIPS may also potentially be
troublesome, as it allows WTO members to exclude patentable inventions for
the purpose of protecting public order or morality, to protect human, animal
and plant life or health or to avoid serious prejudice to the environment. Article
27.3(b) allows members to exclude plants and animals from being patented but
prohibits members from excluding micro-organisms, non-biological and
microbiological processes from patenting. WTO members may still exclude
certain life-forms from patentability where it might interfere with a countrys
ability to preserve genetic resources or traditional knowledge. However, the area
of potential conflict is whether WTO members would be obliged to provide
intellectual property protection to plant parts such as cells or genes conferred in
other jurisdictions by countries that have allowed for such patentability, which
would then have implications for access and benefit-sharing regimes.
49

The conflict as a consequence, exists though it may be explicit or
implied and arises only when trade is likely to infringe the specific protection
conferred by an MEA. Such conflicts however, if not addressed at an early stage
and in a precise manner, will only lead to increased litigation. With this in mind,
the author believes that the following can prove to be effective solutions:
(i) Exemption of MEAs through Waivers:
Article IX of the WTO Agreement provides for a process of waiver,
which can be used to exempt MEAs from GATT rules. Through this, upon
ratification, MEAs could be submitted to the WTO for waiver. This would
seem to legitimise MEA trade measures, and requires minimal reform of the
GATT/ WTO. However it may not succeed for all MEAs, especially those
which have lesser support. Waivers will be less possible for other MEAs among
WTO Parties as the required three-fourths majority would be difficult to attain.

49
Ryan Winter, Reconciling the GATT and WTO with MEAs: Can We Have Our Cake and Eat it
Too?, 11 COLUM. J. INTL ENVTL. L. & POLY, 223 (2000).

45
In any event, a waiver reinforces a hierarchy of the WTO Agreements over
MEAs
50
.
(ii) Amendment of the GATT:
GATT Article XX could be amended so that measures pursuant to an
MEA could be deemed a justifiable restriction on trade. Measures taken
pursuant to the MEA would then be necessary considering their objectives
though it would still be up to a panel or the Appellate Body to determine this
and therefore in effect interpret the relevant MEA. In addition, any MEA trade
measure would still have to satisfy the additional requirements under the
Chapeau of Article XX. MEAs benefiting from this presumption would need to
be identified in some way. One option would be to list specific MEAs. In turn,
the WTO dispute settlement system could defer consideration of any dispute to
the MEA mechanism, creating separate but equal regimes. This would work
most effectively where the MEA specifically deals with trade in a particular type
of goods or services (e.g. CITES, Montreal Protocol, Basel Convention,
Cartagena Protocol). By selecting particular MEAs, however, there may be
concern about the impracticality of having to amend Article XX or even simply
agree an amendment to the list, every time a new MEA comes into force. A
counter to this solution would be that MEAs would then always be subordinate
to WTO obligations.
51

(iii) Change of Forum for WTO-MEA Disputes:
Disputes involving the MEAs and WTO may be resolved via a
different authoritative forum, such as the International Court of Justice (ICJ).
The ICJ could then apply Principle 7 of the Rio Declaration which says that all
States shall cooperate in a spirit of global partnership to conserve, protect and
restore the health and integrity of the Earths ecosystem. If the complaining
party were a member of the MEA, the dispute could be referred to the
mechanism under that agreement, if there is one provided for by the respective
MEA.
52

50
DUNCAN BRACK & KEVIN GRAY, MULTILATERAL ENVIRONMENTAL AGREEMENTS AND
THE WTO- A REPORT, The Royal Institute of International Affairs and the International
Institute for Sustainable Development, 35 (September 2003).
51
Id. at 39.
52
Id.

46
(iv) A Global Environmental Organisation:
All the above solutions, as well as any discussion centered on the
trade-environmental confluence concern are permeated by the basic assumption
or admission that GATT/ WTO is more powerful than the MEAs. One reason
for this view is that the international environmental protection arena has no
counterpart such as the GATT/ WTO. Although labeled unrealistic, the
creation of a Global Environmental Organisation would be to environment
related restrictions on trade, what WTO is to trade liberalisation. The only
flipside to this solution is that it would be very difficult to create such an
organisation, as such an organisation would balance the disciplinary power of
the WTO
53

IV. RECOMMENDATIONS
Notwithstanding the discussion above, the conflict between free trade
and environment protection exists. Inevitably, trade-environment conflicts have
to be resolved with the import of more environmental principles into trade
jurisprudence. With the evolution of a greener outlook on international trade
disputes, the Appellate Body now appears to be one which prefers to stick
doggedly to the literal meaning of the text. This current approach can be lauded
as being uncontroversial and an evident path for a tribunal which seeks political
support for its decisions, as under principles of international law, the text of the
agreement forms the root of decision-making. However, in a legal sense, when
the Appellate Body needs to look beyond the text, and discover proof of
political agreement, it can be criticised as using interpretative tools which are
incoherent and inconsistent in nature, as can be traced from their disputes over
the years. A cleaner, and less problematic solution, would instead be to rely on
Article 31(3) of the Vienna Convention on the Law of Treaties. Article 31(3)
lays out the foundation to connect a treaty text to certain specialised types of
extra-textual agreements. Article 31(3) instructs the interpreter to take into
account, together with the context of the terms of the treaty:
(a) any subsequent agreement between the parties regarding the interpretation
of the treaty or the application of its provisions;

53
Robyn Eckersley, The Big Chill: The WTO and MEAs, GLOBAL ENVIRONMENTAL POLITICS,
MIT, 45 (May 2004).

47
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the
parties.
Invoking Article 31(3) can be viewed as being extremely advantageous
in various ways. Firstly, it relies on a method of interpretation which by itself
mirrors a broad consensus, one which the Appellate Body previously pledged to
use. Article 31(3) would therefore be a more politically amicable interpretative
tool with all the States involved. Moreover, Article 31(3) could identify
agreements which are clearly relevant to the issue before the tribunal.
54

The issues in the application of Article 31(3) may center round the fact
that each of the three categories in Article 31(3) necessarily requires a specific
connection between the extra-textual agreement and the treaty text. Thus all
the parties must acquiesce in some manner to the agreement for the application
of Article 31(3). Secondly, Article 31(3) does not prevent the parties from
jointly deciding that subsequent agreements may be relevant to interpretation
even if not all of the parties have adopted them. For example, the WTO
Agreement allows the General Council to make interpretive decisions on the
basis of a three-fourths majority. Further, subsequent agreements, whether
reached expressly or through practice, may establish an interpretation of a treaty
that is not subject to challenge by states ratifying the treaty later. In other
words, new parties have to take the treaty as it is when they join it, including
any interpretations of it already established under Article 31(3). In addition to
this, rules of customary international law potentially relevant under Article
31(3)(c) may bind nations that have not specifically agreed to them, at least as
long as the nations have not persistently objected to their formation.
55

Subsequent practice establishing the agreement of the parties under
Article 31(3)(b) need not be by every party; the practice need only be accepted
by all, and the acceptance can be tacit.
56
MEAs containing trade restrictions
provide an example of such subsequent practice. From the early 1970s, when
CITES was drafted and adopted, to the present, when it and other major MEAs

54
ENVTL. L. REV., Vol. 28 (2004).
55
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 636 (Clarendon Press, 1998).
56
T. O. ELIAS, THE MODERN LAW OF TREATIES, 76 (Kluwer Academic Publishers, 1974).

48
with trade restrictions have attained close to universal membership, the vast
majority of GATT parties have negotiated, signed, and ratified the MEAs
without contemporary claims by other GATT parties that the trade restrictions
violate GATT.
Because Basel and CITES can only be consistent with GATT if
Articles XX (b) and/or XX (g) are not limited to protecting humans, animals,
and natural resources within the jurisdiction of the party imposing the trade
restriction, the Tuna-Dolphin view of extra-jurisdictionality cannot be correct.
Subsequent practice therefore should have led to a decision in Shrimp-Turtle I
that measures taken to protect sea turtles outside the jurisdiction of the nation
taking the measures are within the scope of Article XX.
The application of Article 31(3) may curb the wide array of extra-
textual agreements that the Appellate Body could take into account. For
instance, even the universally adopted Rio Principle 12, cited in Shrimp-Turtle I
by the Appellate Body as evidence of the preference of the international
community for multilateral approaches to environmental protection
57
could be
taken into account only if they were regarding the text under review (in that
case, GATT Article XX), or if they reflected relevant customary international
law. Principle 12 would not meet either requirement. Political declarations are
far more likely to meet the first criterion if they are made in the WTO context.
The WTO members consensus statement in the 1996 CTE Report that they
support and endorse multilateral solutions based on international cooperation
and consensus as the best and most effective way for governments to tackle
environmental problems of a trans-boundary or global nature probably does
qualify as a subsequent agreement under Article 31(3)(a), especially since the
following sentence of the report specifically refers to the need to ensure a
mutually supportive relationship between WTO agreements and MEAs.
Article 31(3) would not, undeniably, be the perfect solution. There exists no
perfect interpretive solution. It would, however, provide a way to consider
whether particular extra-textual agreements may be taken into account in
interpreting WTO texts that is more predictable, more faithful to the most

57
WTO Appellate Body Report, United States Import Prohibition of Certain Shrimp and
Shrimp Products, WT/DS58/AB/R.

49
generally accepted interpretive rules, and more likely to identify relevant
agreements.
58

A general apprehension is that the expanding scope of the WTO will
restrict the potential of the MEAs and make them less effective, as the trade
restrictions in MEAs may become vulnerable to challenge before the WTO.
This conflict has been examined extensively and several solutions have been put
forth, though practical and concrete steps are yet to be taken on this matter.
However, discounting the possible political reasons it may have for
doing so, it can be concluded that the jurisprudence of international trade has
imbibed a greener slant over a series of disputes. The constant discord between
trade and the environment is undeniable, and the solutions proposed coupled
with the reading of Article 31(3), in the authors opinions, would as a minimum,
help sojourn this conflict.
V. CONCLUSION
The above analysis concludes that the judicial outlook of trade
jurisprudence has gradually evolved to address environmental concerns. The
judicial search for political agreement has led directly to greener decisions in
two ways. Firstly, by reading the ordinary text, many of the interpretations from
cases like Tuna-Dolphin were done away with, as those interpretations were
based on the narrow view of panels regarding GATT objectives instead of a
scrutiny of its plain text. It was by reading the plain text that the Appellate Body
pronounced their judgment with legislation much more amicable to
environmental concerns. Secondly, when the Appellate Body sought beyond the
text of the trade agreement, they discovered instances of political agreement in
non-trade contexts, including in international environmental instruments such
as CITES.
It is imperative for international economic law to accord legal
recognition to the inherent value of non-economic objectives. WTO Panels
have discernibly widened the definitions within the legislation, such as
exhaustible natural resources to account for increasing environmental hazards.
Further, they have rationalised the legal review of national measures adopted to
pursue such non-economic objectives. As a result, States will be encouraged to

58
ENVTL. L. REV., Vol. 28. (2004).

50
pursue non-economic objectives in response to environmental threats, as long
as they derogate from their trade-related obligations in a justifiable manner to
the extent permitted by the GATT.
This presents a striking transformation in juristic mentality to validate
and enforce national measures necessary for the protection of the environment,
thereby attempting to reconcile the perpetual dissension between international
trade and the environment.

51
RIGHT TO INFORMATION: SHREDDING THE
CURTAIN OF SECRECY AROUND POLITICAL PARTIES
Tanya Choudhary
*

This article analyses the concept of transparency in politics and the merit of bringing
political parties within the ambit of Indias sunshine legislation viz. the Right to Information
Act, 2005. The debate is prompted by the recent decision of the Central Information
Commissioner in Shri Subhash Chandra Aggarwal & Another v. Indian National
Congress and Others
1
which has declared the six major political parties of the country to be
public authorities within the scope of the RTI Act. Though the order is correct in terms of the
outcome, the reasoning employed in reaching the conclusion suffers from several flaws. The
article studies the existing regulatory framework for political parties in India as well as the
RTI laws of other jurisdictions in order to grasp the different ways in which countries have
previously extended their RTI laws to political parties. The article seeks to debate the potential
social and political consequences of such a move in India and offers a middle ground to remedy
the stalemate between the political parties and the civil society on the issue.
I. INTRODUCTION
Political parties are the sine qua non of modern democracies.
2
These are
unique institutions which form the government, man the Parliament and run
the governance of the country.
3
Political parties ought to serve as the link
between the government and the people but the paradox of our times is that
political parties themselves are more often than not, the evil to be remedied.
A few decades into being a democracy, India witnessed criminalisation
of politics, growing influence of money and muscle power in elections and lack
of internal democracy and transparency in the functioning of political parties.
To take an example of 1998 elections, the figures by the Election Commission
revealed that 1,500 out of approximately 14,000 contestants had previously

*
III
rd
Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad.
1
File No. CIC/SM/C/2011/001386 & 00083.
2
Molenaar, Fransje, The Development of European Standards on Political Parties and their Regulation,
(Legal Regulation of Political Parties Working Paper Grp Paper No 4) available at http://ww
w.partylaw.leidenuniv.nl/uploads/wp0410.pdf
3
LAW COMMISSION OF INDIA, 170
TH
REPORT ON REFORM OF THE ELECTORAL LAWS (2001).

52
been convicted of grave offences such as murder, rape, robbery and
kidnapping.
4
The candidates contesting elections included a Member of
Parliament who had murdered a local police officer by throwing him in front of
a running jeep and three others who had won the previous elections while in
prison.
5
The state of elections for the State Legislative Assemblies was no
different. For instance, Bihar State elections of 1987 witnessed 333 incidents of
booth capturing with 66 shooting incidents and 53 bomb explosions.
6

Corruption and criminals have thus become as much a fixture in politics as the
white Gandhi cap.
7
In the absence of any legislative intervention, political
corruption and other problems plaguing the national political life have gradually
become so entrenched within the system that they do not lend themselves to
any easy solutions. In the past few years, the Indian citizenry has been rattled by
a string of political scams and corruption scandals including the
Commonwealth Games scam, allocation of 2G spectrum scam, Bofors Hawala
scam, fodder scam etc., each unraveling one after the other.
It is in this background that on 3
rd
June 2013, the full bench of the
Central Information Commission (hereinafter CIC) in Subhash Chandra v. Indian
National Congress and Others
8
passed an order declaring that the six major national
political parties namely Congress, Indian National Congress, Bhartiya Janata
Party (BJP), Communist Party of India (Marxist) (CPM), Communist Party of
India (CPI), Nationalist Congress Party (NCP) and Bahujan Samaj Party (BSP)
are subject to the Right to Information Act, 2005 (henceforth will be mentioned
as The Act). As per the scheme of the Act, this order (i) placed an obligation
on the political parties to proactively disclose information to the public
9
and (ii)
equipped the public with the right to demand answers from the political parties
about their source of funding, choice of candidates, election manifestoes among
a host of other issues (unless the information sought was covered by any of the
exceptions under Section 8 in which case the disclosure would not be
mandatory).

4
N. Gunalan, Indian Criminals Contesting Elections, T Strait Times, Singapore, February 14, 1998.
5
Id.
6
Michael Hamlyn, The Troubled State of Bihar: Gangster grip in coal and politics, The Times,
London, November 18, 1986.
7
John Stackhouse, Path From Prison to Power is Short in India in the Current Elections, Criminals have
become as much a Fixture as the Gandhi Cap, The Globe and Mail, Canada, February 21, 1998.
8
File No. CIC/SM/C/2011/001386 & 000838.
9
Right to Information Act, 4 (2005).

53
The decision was instantly hailed by the public as a landmark
judgement, which set a new benchmark for transparency in political life.
10

However, the political parties have since, unanimously opposed the order in an
uncharacteristic display of solidarity. In the few days after the decision, political
parties were found debating and evaluating every possible means to wriggle out
of the order. As a result, the Central Government finally tabled an amendment
bill in order to exclude all the political parties registered with the Election
Commission from the ambit of the RTI Act.
11
Since the country finds itself in
the midst of a transparency versus non-disclosure debate, it is pertinent to
discuss and debate the pros and cons of bringing political parties within the
ambit of the RTI Act. To further this purpose, Part II of this article undertakes
a critical, in-depth analysis of the logical and legal tenability of the CICs order
in Subhash Chandra v. Indian National Congress and Others. Part III examines the
possible social and political repercussions of bringing political parties within the
ambit of RTI. Part IV is a comparative evaluation of the RTI Act of India with
the RTI laws of other countries to appreciate the various approaches that
different countries have adopted over the years to subject political parties to
transparency laws. Part V then examines the major challenges to the idea of
transparency in politics and Part VI comprises the conclusion which finally
summarises the entire debate and offers a way ahead.
II. SHRI SUBHASH CHANDRA AGGARWAL & ANOTHER
V. INDIAN NATIONAL CONGRESS AND OTHERS
The Right to Information Act is applicable to all bodies which fall
within the definition of public authority under Section 2(h)
12
without providing

10
Editorial, A New Benchmark for Transparent Politics, The New Indian Express, June 4, 2013.
11
Venkatesh Nayak, Non-Government Organisation Recognized as Public Authorities under the Right to
Information Act, 2005, ACCESS TO INFORMATION PROGRAMME, COMMONWEALTH HUMAN
RIGHTS INITIATIVE (2013).
12
Section 2(h):
public authority means any authority or body or institution of self-Government established
or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or made by the appropriate Government, and includes any -
(i) body owned, controlled or substantially financed;


54
for an exhaustive list of such authorities. Like the majority of litigation around
the RTI Act, this case also dealt with the scope of the Act and turned on the
interpretation of Section 2(h). The term public authority, as defined under
Section 2(h), has two components (i) the first part of the definition refers to
those bodies which have been established/ constituted by or under the
Constitution or statute (state and centre) or notification by appropriate
government (ii) the second part then goes on to widen the definition and
includes within its purview all bodies owned, controlled or substantially
financed by the government.
13

Since political parties in India are clearly not established under the
Constitution or any statute, the primary question before the Central
Information Commission in this case was whether or not political parties are
public authorities under the second limb of Section 2(h). Their reply to this
question came in the affirmative, supported by a three pronged justification i.e.
(1) political parties are substantially financed by the government; (2) political
parties perform functions of a public nature and (3) constitutional/legal
provisions vest political parties with rights and liabilities. Each of these grounds
will be individually analysed in the present section.
A. POLITICAL PARTIES ARE SUBSTANTIALLY FINANCED BY
THE GOVERNMENT
The primary ground for bringing political parties within the ambit of
public authority under Section 2(h) is that these are substantially financed by
the government. Political parties in India enjoy numerous financial privileges
such as large tracts of lands/ houses free of cost or at concessional rates,
exemption from payment of income tax,
14
free air time on All India Radio and
Doordarshan as well as free electoral rolls during the time of elections,
15
all of
which are instances of indirect financing by the government.
The only question, which then remains to be answered, is whether or
not this financing amounts to substantial financing. Though the words

(ii) non-Government organisation substantially financed, directly or indirectly by funds
provided by the appropriate Government.
13
Prabodh Saxena, Public Authority and the RTI, 13 EPW 44 (2009).
14
Income Tax Act, 13A (1961).
15
Representation of the People Act, 78A & 78B, (1951).

55
substantially financed have nowhere been described in the Act, in The Hindu
Urban Cooperative Bank Ltd. v. State Information Commission and Others,
16
it was
clarified that where a question of public funds is involved, the word
substantially financed cannot be interpreted narrowly by reducing it to
percentages or mathematical values. Accordingly, any financing which is not
trivial enough to be ignored as a pittance is to be termed as substantial
funding. This rationale has been cited with approval in many subsequent cases.
For instance, in Pradeep Bhanot v Chandigarh Club,
17
where Chandigarh Club
received certain land from the Chandigarh administration and paid a rent which
was considerably lower than the commercial rent prevalent in the market. This
alone was enough for the court to hold that the Club was a public authority as
it was being substantially financed by the government.

The same view was
upheld in a plethora of other cases
18
which are not discussed in this paper for
the sake of brevity.
B. POLITICAL PARTIES PERFORM DUTIES OF A PUBLIC NATURE
The second prong of the CICs order rested on the assumption that
political parties perform important public functions in a democracy and are
therefore amenable to RTI. The court drew this conclusion based on a single
decision of Karnataka High Court in Bangalore International Airport Limited v
Karnataka Information Commission,
19
where the court was determining the
applicability of RTI Act to BIAL and it was observed that public authority is a
body which exercises public function for the benefit of the public rather than
for private profit, and it is this feature which distinguishes a public authority
from a private one. This led the CIC to the conclusion that political parties
which perform functions of a public nature are public authorities under the
Act.
However, there is more than one flaw in this line of argument. First of
all, even a cursory glance at the Act would reveal that it does not mention a

16
(2011) ILR 2 Punjab and Haryana 64.
17
Shri Pradeep Bhanot v. Chandigarh Club, Chandigarh, CIC/LS/A/2010/001184.
18
Delhi Integrated Multi Model Transit System Ltd. v. Rakesh Aggarwal 2012(131) DRJ 537;
Thalappalam Service Co-operative Bank Ltd. v. Union of India AIR 2010 Ker 6; Tamil Nadu
Road Development Company Limited v. Tamil Nadu Information Commission AIR 2009
(NOC) 255 (Mad).
19
ILR 2008 KAR 3618.

56
public function test in the definition of public authority. The public functions
test is employed instead, to determine the definition and scope of State under
Article 12 of the Constitution and to determine the High Courts power to issue
writs under Article 226. Interestingly, a string of judicial pronouncements
categorically state that the definition and scope of State under Article 12 is
completely separate from the definition of public authority envisaged under
the RTI Act.
20
The difference lies in the fact that right to information was
traditionally viewed as emanating from the freedom of speech and expression
under Article 19(1)(a) of the Constitution
21
and subsequently, its roots were
traced back to Article 14 (equality before the law and equal protection of law)
and Article 21 (right to life and personal liberty) since transparency was sought
to be used as a deterrent against unequal treatment and discrimination.
22

However, the scope of the right at that point continued to be limited to the
extent that it could only be exercised against the State. The purpose of RTI
Act was inter alia to broaden the scope of citizens right to information by not
limiting it in terms of state but expanding it to any body which qualifies to be a
public authority within the given definition. Therefore, CICs interpretation is
very difficult to reconcile with the language and the context of the Act.
Secondly, judicial decisions in the past have expressly rejected the public
function test in the context of RTI itself. In as recently as 2010, it was stated in
Kul Bhushan Dania v Usha Kumari
23
that a public function test cannot be read in
as a criterion to judge whether or not a body is a public authority when this has
nowhere been explicitly mentioned under Section 2(h) of the RTI Act. The
obvious reason for this being that it is the prerogative of the popularly elected
legislature to formulate laws and it is not open to the judiciary to substitute its
own will with the intention of the legislature. Another case in point is Kuldeep
Singh v. State of Punjab
24
where a school imparting education and performing
public function but not receiving any substantial grant-in-aid was held to be

20
The Hindu Urban Cooperative Bank Ltd. v. The State Information Commission, (2011) ILR
2 Punjab and Haryana 64.
21
State of UP v. Raj Narain, (1975) 4 SCC 428; S.P. Gupta v. Union of India, (1981) Suppl.
SCC 87.
22
Secretary General, Supreme Court v. Subhash Chandra Aggarwal, AIR 2010 Delhi 159; S.P.
SATHE, RIGHT TO INFORMATION (2006).
23
Kul Bhushan Dania v. Usha Kumari, 2010 Indlaw CIC 27.
24
2011(2) RCR (Civil) 22.

57
beyond the scope of RTI.
25
In Krishak Bharti Cooperative Ltd. v. Ramesh Chander
Bawa
26
, the court even refused to hear arguments about the nature of function
performed by the bank, stating that such a test is wholly irrelevant in the
context of RTI. Similar view was voiced in National Stock Exchange of India Ltd. v.
Central Information Commission
.27
and several other cases.
Finally and most ironically, in the Bangalore International Authority case
(which has been used by CIC to support its conclusion) the Karnataka High
Court itself did not apply the public function test to the factual matrix before it.
Instead, the case was solely decided on the touchstone of substantial financing
as the Court came to the conclusion that BIAL is substantially financed by the
government and therefore, qualifies to be a public authority. Thus, the Courts
observation in Bangalore International Authority case was nothing more than an
obiter and it can be argued that the intention was never to usher in a public
function test as an additional or even a supplementary criterion to define the
meaning and scope of the term public authority.
As a result, the CICs reliance on this judgment is wholly misplaced and
it is not appropriate to use the public function test to decide whether a body is
a public authority.
However, keeping legal precedents aside, one can make the argument
that the Act should be applicable to all bodies which perform public functions
and not just those which receive government funding.
28
This debate has been
gaining momentum in recent years with the rise in globalisation where
government is delegating more and more of its activities to private
organisations. It is often argued that failure to include such organisations within
the Act will place substantial amounts of government information outside the
reach of the Act.
29

25
Shonali Ghosal, Public Utilities Elude the RTI Net: The Cloak of Privacy Protects Companies, 8
TEHELKA (2011).
26
Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa, (2010 (V) AD (Del) 405, W.P.
(C) 6129/2007).
27
[2010] 100 SCL 464 (Delhi).
28
David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to
Government Information Laws, PRIVACY INTERNATIONAL (2006).
29
Alasdair S. Roberts, Less Government, More Secrecy: Reinvention and the Weakening of Freedom of
Information Law, 60 (4) PUBL. ADMIN. REV. 298 (2000).

58
Though this argument carries considerable merit, there are certain
fundamental difficulties that the use of a public function test is likely to
engender. First, there has never been any unanimity among judges about what
constitutes a public function.
30
In fact, the only point that remains
uncontested is that there cannot be a single test to define public function.
31

The evolving jurisprudence on the definition of the State under Article 12 of
the Indian Constitution and writ jurisdiction of the High Court under Article
226 reveal that originally public functions were defined in terms of the
sovereign functions of the State. However, what these sovereign functions are
remains undefined and subject to change.
32
Sovereign functions can be
confined to provision of public security, protection of life and property or it
may encompass a wide range of functions such as sports, education, culture,
transport, communication, religion etc.
33
In fact, the idea of sovereign function
is derived from the amorphous concept of sovereignty which has itself eluded
consensus among political and legal theorists since centuries.
34
Thus, to
articulate a precise definition of public function is extremely difficult, to say
the least. In such a case, using an undefined and vague category of public
function instead of a statutorily prescribed definition of public authority
would only give rise to unpredictability and uncertainty in the scope of the RTI
Act.
Another argument against the use of this test is that it widens the scope
of RTI a little too far. There are a number of institutes like schools, hospitals
which perform the public functions of imparting education and providing
health and medical facilities respectively but these cannot be brought within the
purview of the Act.
35
This is because the Act envisages transparency in the
functioning of public authorities by virtue of the fact that they receive and
utilise taxpayers money and should consequentially be accountable to the

30
Public Corporations and Private Bodies that perform Public functions and/or receive Public Funds,
(accessed July 25, 2013) available at http://www.right2info.org/scope-of-bodies-covered-by-
access-to-information/private-bodies-that-have-a-public-character
31
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.
32
Balmer Lawrie and Co. Ltd. v. Partha Sarathi Sen Roy, 2013 (2) SC T232 (SC).
33
For instance, Armenia provides for an expansive range of functions of public importance
including health, education, communication et al. See generally, www.right2info.org.
34
Robert S. Gilmour & Laura S. Jensen, Reinventing Government Accountability: Public Functions,
Privatization, and the Meaning of "State Action", 58(3) PUBL. ADMIN. REV. 251(1998).
35
Kul Bhushan Dania v. Usha Kumari, 2010 Indlaw CIC 27; Krishak Bharti Cooperative Ltd.
v. Ramesh Chander Bawa, (2010 (V) AD (Del) 405, W.P. (C) 6129/2007).

59
public irrespective of the functions that they perform. In fact, a logical
extension of the CICs argument would lead us to the conclusion that even
gurdwaras should become public authorities since they serve langar, which is a
public activity
36
, something which was clearly not envisaged by the Act.
37
What
is ironical, though, is that this statement criticising the public functions
approach for RTI was made three years ago, in 2011, by Satyanand Misra the
person who headed the bench in the present case.
38

C. CONSTITUTIONAL/LEGAL PROVISIONS VESTING POLITICAL
PARTIES WITH RIGHTS AND LIABILITIES
The order states that the constitutional and statutory rights and
obligations of political parties reflect their public character, bringing them
within the net cast by Section 2(h). Unfortunately, even this third ground stated
in the order is worth appreciating only for its ingenuity and not for its legal
merit. This is a new category magically conjured out of thin air as such a
parameter neither appears in the Act nor has any backing in judicial
precedents.
39

What is more amusing is that political parties do not even squarely fall
within this ingenious category since the Constitution with its 385 articles does
not once mention the words political party, much less lay down the rights and
liabilities of political parties. This is unlike countries such as Germany where the
Constitution actually contains elaborate provisions for the establishment and
functioning of the political parties.
40
In India on the other hand, the only place
where the word political party finds a mention in the Constitution is in the
tenth schedule, which was not inserted into the Constitution until 1985.
41

Logically, such a new category also detracts from the rest of the
definition. If a statute conferring rights and obligations upon a body is sufficient

36
Shonali Ghosal, Public Utilities Elude the RTI Net: The cloak of Privacy Protects Companies, 8
TEHELKA (2011).
37
Id.
38
Id.
39
Anirudh Burman, Transparency and Political Parties: Finding the Right Instrument, 48 (28) EPW 39
(2013).
40
TH
41
The Tenth Schedule deals with the disqualification of a person as a member of either House
of Parliament or the Legislative Assembly on the grounds of defection.

60
to qualify that body as a public authority, there is little point in retaining the first
part of Section 2(h) which requires that a body, in order to be public authority
needs to be established or constituted and not merely recognised by the
Constitution/Statute. Similarly, the judicial interpretation of the second part of
the definition that the appropriate government should have a deep and
pervasive control over the body and not merely regulatory control
42
is rendered
irrelevant if a body can be brought within the ambit of RTI simply because a
statute regulating its functioning confers rights and liabilities upon it.
Therefore, the decision of the CIC is not free from legal infirmities and
two out of the three prongs which form the basis of the order, are legally
untenable. The only legally redeeming quality of the judgment is that political
parties are indeed substantially financed by the government. This ground alone
is sufficient to bring political parties within the ambit of the definition of public
authority under Section 2(h). Additionally, the prime significance of this order
continues to lie in the fact that it is a culmination of a long standing demand for
greater transparency in politics.
III. THEORETICAL IMPLICATIONS AND SOCIAL
REPERCUSSIONS
The opposite stance taken by the civil society and the political parties
on the issue has sparked off a rigorous public debate and discussion on the
efficacy of the CIC order. This arises out of speculations about the social and
political consequences of bringing political parties within the ambit of the Act.
Any attempt to argue for or against the decision would presuppose an
appreciation of the existing legal framework surrounding political parties. The
political parties, as mentioned above, largely fall outside the ambit of
constitutional provisions. The Representation of the People Act of 1951 is the
only piece of legislation that regulates some aspects of the functioning of
political parties. The political parties in India are exempted from paying tax
under the Section 13(A) of the Income Tax Act of 1961 but in return they are
legally bound to maintain regular accounts, record and disclose names of
donors contributing more than Rs. 20,000 to the Election Commission.
43

42
Zila Sahakari Kendriya Bank Maryadit, Jagdalpur v. State Information Commission, 2011(4)
MPHT 20.
43
Representation of the People Act, 29C, (1951).

61
Section 77 of the Representation of the People Act also places a limit on
expenditure during elections to control the influence of money in elections and
to provide a level playing field to all those contesting elections.
But these laws are of little practical utility since non-compliance with the
legal requirements does not invite strong penalties. This is perhaps why only
174 out of 1,196 registered parties have submitted their annual reports
regarding contributions to the Election Commissioner in 2010-11.
44
While the
CPI(M) did not submit their donation report at all, Bahujan Samaj Party went to
the extent of claiming that the party had not received any donations above Rs
20,000 even though the total income of the party was declared to be Rs
17267.84 lakhs.
45

In the same vein, the actual expenditure incurred during elections has
no connection whatsoever to the statutory maximum prescribed under the law.
More often than not, the expenses revealed are merely the tip of the iceberg.
This was best highlighted when Member of Parliament Gopinath Munde
declared at a book launch function last year that he incurred an expense of Rs. 8
crores during his 2009 Lok Sabha Elections,
46
an amount which is several times
the prescribed statutory limit of 25 lakh rupees. In some cases such as the
ceiling on expenditure, the law itself provides an escape route by fixing a ceiling
only in respect of the expenditure incurred or authorised by the candidate
himself while leaving out the expenditure incurred by the party or any supporter
in his election campaign.
47

In such a scenario, some might argue (and legitimately so) that RTI
merely ensures disclosure and transparency and so even if the disclosed
information reveals serious concerns like money laundering, corruption,
arbitrariness etc. that would just form the basis for a greater struggle. However,
the fact also remains that disclosure (as mandated by RTI) has proved to be a
very effective means of regulation in the past which cannot be underestimated.
This was observed in the context of environment when the United States

44
N. Misra, Enforcing Clean Politics, New Indian Express, July 15, 2013.
45
Analysis of Income Tax Returns Filed and Donations Received by Political Parties, National Election
Watch and Association for Democratic Reforms (2002), available
at http://adrindia.org/sites/default/files/Donations%20Report%20-%20FY-2004-
05%20to%202010-2011_0.pdf (Last visited 11 January, 2014).
46
Munde Admits Spending Rs. 8 Crore in 2009 polls, The Hindu, June 28, 2013.
47
Namit Oberoi, Reforming Election Funding, 1(1) NUJS LAW REVIEW 145 (2008).

62
passed the Emergency Planning and Community Right-to-know Act in 1986
mandating corporates to disclose the extent of toxics that they release into the
atmosphere. The purpose of the law was only forced disclosure and it did not
prescribe any upper-limit on the pollution. Nevertheless, it was found that
within six years the toxic levels fell by 44 per cent, a decrease not easily
achievable by any statute on environmental protection.
48

Often termed as regulation by revelation, this mechanism mobilises
the power of shame
49
and the pressure of public opinion to achieve effective
results. As Jeremy Bentham would say, the more strictly we are watched, the
better we behave.
50

Having proved its merit in the context of environment, RTI is most
likely to result in effective regulation of political parties since there is no other
body on which the pressure of maintaining a favourable public opinion is as
severe as that on political parties. The very existence of political parties and
their entire agenda of grabbing political power hinge on public perception of
the party and the constant threat of losing peoples confidence and support
during elections is likely to compel political parties to exercise self-restraint.
This is precisely why laws demanding public disclosure are likely to be more
effective than electoral laws for remedying corruption and establishing political
accountability.
51
This assertion is further fortified by the fact that the need for
transparency to improve the functioning of political parties has also been
previously acknowledged by innumerable reports such as the 170
th
Law
commission in 2001
52
and the 2002 Report of the National Commission to
Review the Working of the Constitution
53
which recommended that the records
of political parties should be properly maintained, audited, submitted to the
Election Commission and this information should be made public. A similar
view was expressed by the Election Commission on Proposed Electoral

48
Ann M. Florini, Increasing Transparency In Government, 19(3) INT. J. WORLD PEACE 29(2002).
49
Jonathan Fox, Uncertain Relation between Transparency and Accountability, DEVELOPMENT IN
PRACTICE 17, NO. 4 (2007): 663.
50
Taeku Lee and Sina Odugbemi, How Can Citizens Be Helped to Hold Their Governments
Accountable?, in ACCOUNTABILITY THROUGH PUBLIC OPINION: FROM INERTIA TO PUBLIC
ACTION 415 (Taeku Lee and Sina Odugbemi eds., 2011).
51
Simeon Djankov et al., Disclosure by Politicians, 2(2) AM. ECON. J.: APPLIED ECONOMICS
(2010).
52
TH
53
REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE
CONSTITUTION (2002).

63
Reforms in 2004
54
when it insisted on full public disclosure of the income and
expenses of political parties. This is in fact, a good opportunity for political
parties to improve their legitimacy and strengthen their relations with the
public.
55
Another obvious advantage of using the Act to usher in transparency
in the functioning of political parties is that it obviates the need to invent a new
cog in the wheel as the desired goals can be achieved within the existing legal
mechanism.
But on the other side of the spectrum, arguments against disclosure
abound wherever and whenever disclosure is sought.
56
Political parties have
vociferously opposed the decision on the ground that it opens up great
possibilities of misuse. Parties fear that they will be inundated with requests,
sometimes even false and vexatious requests made with a political motive
bringing the actual work of the party to a standstill. This argument though not
entirely baseless, is untenable for numerous reasons. First, RTI Act provides
adequate safeguards and in-built protections to avoid such a scenario. RTI
mandates proactive publication of certain information which means that a large
part of the information is already placed in the public domain, substantially
reducing the volume of individual requests.
57
Second, RTI does not require the
public authorities in question to go hunt for information every time a question
is put in front of them. It demands disclosure of only that information which
has been duly recorded. Where information sought was not a part of record and
is not required to be recorded under any law, political party will be under no
obligation to collect or collate such non-available information and then furnish
it to an applicant.
58
Third, and this was the ground why the argument of the
political parties was dismissed in the Subhash Chandra case, is that the validity of a
statute cannot be questioned only on the basis of a possibility of its misuse.
Finally, even if it is accepted that it involves risk of abuse, it needs to be
appreciated that the right to information is a right of wide amplitude which lies
at the core of democracy, freedom of speech, free and fair elections etc. and so
even on a sheer cost-benefit analysis, it is better to leave a few of its noxious

54
ELECTION COMMISSION OF INDIA, PROPOSED ELECTORAL REFORMS (2004).
55
Dolly Arora, State Funding of Elections: Some Posers, 35 (37) EPW 3284 (2000).
56
Ann Florini, The Battle Over Transparency, THE RIGHT TO KNOW: TRANSPARENCY FOR AN
OPEN WORLD 1, 1 (Ann Florini ed. 2007).
57
David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to
Government Information Laws, PRIVACY INTERNATIONAL (2006).
58
Khanapuram Gandaiah v. Administrative Officer, AIR2010SC615.

64
branches to their luxuriant growth, than, by pruning them away, to injure the
vigour of those yielding the proper fruits.
59

Another argument often raised is that the political parties are already
disclosing information to the Election Commission and the Income Tax
Authorities under the existing electoral laws and the present decision will only
cause multiplicity of accountability agencies. First, the inadequacy of the
existing mechanism and framework of law hardly needs to be overemphasised.
Electoral laws mandate disclosure of only limited information and provisions
such as the disclosure about campaign expenses apply only during elections.
The RTI on the contrary, is premised on the belief that democracy is not just
about people coming to vote once in five years and then retreating into the
background as passive spectators. There needs to be continuous engagement
and free flow of information between the governors and the governed. The
argument is also untenable since the RTI laws of no country exist in a vacuum.
RTI law generally forms a part of the broader framework of a host of other
legislations which simultaneously regulate the functioning of the political
parties. The best example of the point being made is Nepal
60
where the RTI
mandates disclosure from political parties while a host of other legislations like
Political Parties Act of 2002, Election Commission Act of 2007 etc. require
political parties to maintain records, submit annual budgets, disclose donations
above NPR 25,000,
61
and report campaign expenses.
62
This would be further
elucidated in the next section that provides an in-depth evaluation and
comparison among the RTI laws existing in other jurisdictions.
IV. COMPARATIVE EVALUATION: RTI LAWS IN
OTHER JURISDICTIONS
Sweden has the distinction of being the first country in the world to
enact a freedom of information act way back in 1776.
63
Thereafter, it took
another century before the other countries of the world began recognising the

59
Romesh Thappar v. State of Madras (1950 SCR 594).
60
Sanjeeb Ghimire, Reforming Political Parties in Nepal: The Role of the Right to
Information, TOWARDS OPEN GOVERNMENT IN NEPAL 223, 225 (2011).
61
Political Party Act, (2002).
62
Election Commission Act, (2007).
63
Jaytilak Guha Roy, Right to Information: A Key to Accountable and Transparent Administration,
CONTEMPORARY DEBATES IN PUBLIC ADMINISTRATION, 312 (Alka Dhameja ed. 2004).

65
citizens right to information. The growth of such laws was very slow as less
than twenty countries had passed RTI laws till 1995. However, the right to
information movement has gained pace over the last decade and nearly sixty
countries have come up with RTI laws within a span of fifteen years, from 1995
to 2010.
64

This massive proliferation of right to information laws across the globe
is generally attributed to the spread of democracy.
65
A democratic government
derives its legitimacy from the will of the people, and the government is
understood as a representative or an agent of the public (principal). This
principal-agent relationship has given rise to the presumption of transparency as
it is being increasingly acknowledged that public as the principal has a right to
know about the activities carried on by the agent on its behalf. Thus, the right
to information laws emerged with its requirement of proactive public disclosure
of information in order to overcome the information asymmetric between the
rulers and the ruled.
66

In India on the other hand, the RTI emerged not so much as a result of
a rise of democracy in 1947, as the failure of representative democracy at
multiple levels
67
in the form of widespread political corruption, economic
deprivation, environmental concerns etc. which motivated the people to unite
for a right to information movement, finally culminating into the RTI Act of
2005.
But irrespective of the country or the history, the standard features of a
right to information law are generally the same- a presumption of openness, the
requirement for suo motu disclosure, obviating necessity for legal standing,
procedure for disclosure and a nodal agency for implementation. One point,
however on which RTI laws of different countries show considerable diversity
is the coverage of the Act.

64
Shekhar Singh, The Genesis and Evolution of the Right to Information Regime in India, TRANSPARENT
GOVERNANCE IN SOUTH ASIA, 3 (2002).
65
David Banisar, Freedom of Information and Access to Government Records Around the World, PRIVACY
INTERNATIONAL (2002).
66
Ann M. Florini, Increasing Transparency in Governance, 19(3) INT. J. WORLD PEACE 3, 14 (2002).
67
Shekhar Singh, The Genesis and Evolution of the Right to Information Regime in India, TRANSPARENT
GOVERNANCE IN SOUTH ASIA (2002).

66
It is interesting to note that like India, a few countries have previously
sought to extend their RTI laws to political parties in the interests of transparency
and cleanliness in public life, albeit in different ways. These approaches can be
categorised into three different categories. First, the RTI laws of certain countries
explicitly list political parties within the definition of public body/public
authority. Second, in certain other cases the transparency laws have been
extended and applied to political parties pursuant to judicial pronouncements. A
third method of achieving this is by means of a special provision in the right to
information law devoted to political parties. This section undertakes a detailed
analysis of the pros and cons of all these three conceptual categories.
A. EXPLICIT INCLUSION OF POLITICAL PARTIES AS A PUBLIC BODY
UNDER THE ACT
It should come as no surprise that there are very few countries in the
world (Poland, Nepal) where political parties are explicitly listed as a public
body/ authority to which the RTI Act is applicable. In such countries, the RTI
Act places all public bodies including the political parties under the same
obligations of proactive disclosure and providing access to information. This is
completely different from the RTI Act of India which does not specifically
enumerate the public bodies covered under the Act. Furthermore, unlike India,
both Nepal and Poland have incorporated citizens right to information as a
formal explicit constitutional right.
68

The RTI Act of Nepal is a fairly standard right to information law,
barring a few provisions which are really progressive such as the scope of the
Act itself. The Right to Information Act of Nepal is applicable to all public
bodies, (a term defined under Section 2) which explicitly includes political
parties and even non-governmental institutions which receive funding from the
government.
The fallback of such an approach and perhaps one of the many reasons
the implementation of the RTI Act in Nepal is only modest
69
is that by
bringing NGOs and political parties within its ambit, the Act places them in

68
NEPAL CONST. of 1999, art. 16.
69
The World Bank, Implementation of the Right to Information in Nepal: Status Report and
Recommendations (Jan 31, 2011)
http://www.freedomforum.org.np/content/attachments/article/114/RTI-Report-
Nepal%20_World_Bank.pdf

67
the same position as the government. Thus, NGOs and political parties have
no incentive to demand disclosure or play an active part in the implementation
of the Act. Their non-compliance with their own obligations further erodes
their moral authority to seek disclosure from other public agencies under the
Act.
70
A few examples will highlight the point being made. Till 2011, no political
party in Nepal had appointed a Public Information Officer to provide
information as mandated under the Act.
71
Frequent disclosures are made only
during the time of elections. Parties like Community Party of Nepal Maoist
(CPN-M) and Communist Party of Nepal (CPI-UML) practice democratic
centralism wherein the central party leadership maintain their stranglehold
over all key information and decisions and only information of a routine nature
is disclosed to the lower levels.
72
This reveals the dangers of giving an over-
expansive coverage to the RTI laws which might make the provision
counterproductive and potentially self-defeating.
So though an explicit provision in the Act to cover political parties seems
and probably is very progressive, it has not worked well in practice. In Nepal both
the demand and supply of information under the RTI remains low.
73
Since RTI is a
unique act whose success largely depends on the people of the country primarily
the civil society, media and political parties - in Nepal the law benignly lies in the
statue books due to the lack of political will to implement the Act and the
lackluster attitude of the civil society.
The situation in Poland is likewise, where though the Access to Public
Information Act, 2001 allows access to information held by- public bodies, private
bodies that exercise public tasks, trade unions and political parties- the
mechanisms for the enforcement of the Act are relatively weak.
74
Thus, widespread

70
Id.
71
Sanjeeb Ghimire, Reforming Political Parties in Nepal: The Role of the Right to Information, in
TOWARDS OPEN GOVERNMENT IN NEPAL 223, 225 (2011).
72
Id.
73
Id.
74
Patrycja Joanna Suwaj, Difficulties with Implementation of Conflict of Interest Regulation in Polish Local
Government, COMBATING CONFLICT OF INTEREST IN LOCAL GOVERNMENTS IN THE CEE
COUNTRIES LOCAL GOVERNMENT AND PUBLIC SERVICE REFORM INITIATIVE 147, (Barbara
Kudrycka ed. 2004).

68
corruption, political patronage and scams exists involving top political leaders
despite the legislation.
75

B. JUDICIAL INTERVENTION TO APPLY TRANSPARENCY
PROVISIONS TO POLITICAL PARTIES
There is a second category of countries such as Mexico and Canada and
now India, where the RTI Act does not make any direct reference to political
parties, but the transparency laws have been applied to political parties through
judicial pronouncements. Mexico will serve as the best example of the point
being made.
The Federal Transparency and Access to Government Information Law
of Mexico does not expressly list political party as a public body.
76
However, the
first two major cases that arose about the application of this law, revolved
around political parties.
77
The first case was brought in 2002 by a newspaper
journalist who approached the Federal Electoral Institute (the body that audits
the accounts of political parties in Mexico) to reveal details of salary of officials
of political party.
78
Upon the Institutes refusal, the journalist approached the
Federal Tribunal and in the case, which ensued the tribunal, used Article 6 of
the law- the presumption in favour of transparency- to hold that political parties
are political associations, which receive substantial public funds. They
accordingly ought to be subjected to public scrutiny.
79
The court also relied on
the international covenants like International Covenant on Civil and Political
Rights and American Convention on Human Rights to state that the citizens
fundamental right of suffrage, political association and political affiliation

75
Krzysztof Jasiecki, Regulating lobbying in Poland: Background, scope and expectations, COUNCIL OF
EUROPE (2006) available at
http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/cy%20activity%20inte
rface2006/143%20_2006_-if-rep%20jasie.pdf
76
David Banisar, Freedom of Information and Access to Government Records Around the World, PRIVACY
INTERNATIONAL (2002).
77
Eric Heyer, Latin American State Secrecy and Mexicos Transparency Law, 38(2) GEO. WASH. INTL
REV.437 (2006).
78
ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE
6-8 (2006).
79
Zarate v. Federal Electoral Institute, Case SUP-JDC-041/2004.

69
requires that they be given access to information about political parties, their
monetary resources, organisation and internal regulations.
80

Another similar example of the judicial intervention can be found in
Canada in Phinjo Gombu v. Tom Mitchinson,
81
where an investigative reporter
approached a court in Ontario and got the declaration that public should have
access to electronic database of the campaign contribution records in the
municipal election. The court recognised that there was a public interest
involved in public scrutiny of political parties and election process which
overwhelmingly outweighs any other competing interest.
82

These cases are very similar to the Indian position with the only
substantial difference being that in Mexico, all the major political parties
proactively published information about their salary on their website within a
week of this decision.
83

C. SEPARATE PROVISION FOR POLITICAL PARTIES IN THE RTI ACT
A third and rather innovative approach has been adopted by Indonesia,
Ecuador, Bulgaria and a few others where political parties are explicitly
mentioned in the RTI Act but the extent of information sought from political
parties is less than what other public authority are required to disclose. This is
achieved by crafting a separate provision in the RTI Act for political parties.
For example, Indonesias Public Information Disclosure Act of 2008
creates four categories of public bodies and political parties form one such
category.
84
This is starkly different from the single category of public authority
under the RTI Act of India which is defined under Section 2(h).

80
Id.
81
59 O.R. (3d) 773 (2002).
82
Open Society Justice Initiative, Written Comments on the Case of Geraguyn Khorhurd
Patgamavorakan Akumb v. Armenia, (2006) available at
http://www.right2info.org/resources/publications/GeraguynKPAvArmeniaOct06amicus.p
df.
83
ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE
6-8 (2006).
84
Muhammad Taufiq, Policy Implementation of Information Disclosure in Indonesia: Challenges and
Responses,
UNITED NATIONS PUBLIC ADMINISTRATION NETWORK, available at http://unpan1.un.org/i
ntradoc/groups/public
documents/un-dpadm/unpan047568.pdf

70
In Indonesia, the Act mandates political parties to suo motu reveal certain
information, primarily related to public programs, decision-making procedure
and management and use of funds from the Budget of the State
85
which is less
than the information that the other category of public body need to furnish.
86

Such a limited application of RTI laws to political parties and civil
society actors stems from several factors. First and the more conventional
explanation is that freedom of information laws are a part of the broader
category of human rights,
87
and human rights were traditionally perceived only
within the framework of the state. To that extent, it imposes obligations on the
state actors only.
88

On another level, such an approach is based on the understanding that
there are only some activities of the political parties that directly affect public
interest, such as those undertaken with the help of public funds and
accordingly, public has a right to have access to information about such
activities only. Such a rationale also emerged from a South African judgement
when a High Court dismissed the request for public disclosure of donation
records of political parties.
89
The courts decision was based on the
understanding that when political parties receive donations from independent
private sources, they are not performing any pubic function, nor exercising any
power as a public body under the Constitution or any legislation. So, political
parties are not public bodies in so far as disclosure of their donation records is
concerned.
90

This is also evident in Bulgarias Access to Information Act which states
that political parties are obliged bodies to disclose information but only to the
extent of those activities which are financed out of the consolidated state

85
Public Information Disclosure Act, art. 15 (2008).
86
For further example, see Article 16 of the Ecuador, the Organic Law on Transparency and
Access to Public Information which contains a separate provision for political party. The
provision imposes an obligation on every political party benefitting from state funds to
electronically publish their annual reports about the detailed use of such funds.
87
Misra Hidayani Napu, Towards a Better Regulation of Indonesias Public Access to
Information (2012) (unpublished Masters Thesis, Tilburg University).
88
Bunga Manggaiasih, Pushing For the Right to Know: Understanding the Indonesian Mass
Media Support for Freedom of Information Bill (2012) (unpublished Masters thesis,
Institute of Social Studies).
89
Institute for Democracy in South Africa and Others v. African National Congress [2005]
ZAWCHC 30; 2005 (5) SA 39 (C) [2005] 3 All SA 45 (C).
90
Id.

71
budget or for which funds are received from the European Union or as a part
of EU projects and programs.
91

This approach is in many ways, superior to the Indian position wherein
once a body is found to be substantially financed by public funds, it is declared
a public authority and then the entire repository of information with the body is
subject to public disclosure and public scrutiny (unless specifically exempted
under Section 8). This fails to take into account that a body can have both
public and private character and when it is not indulging in any public activity
or performing functions using public funds/taxpayers money, it should not be
subjected to unwarranted public gaze. The first criticism and apprehensions
over the Subhash Chandra order is also from the standpoint that a political party
competes with the other political parties for political space and power, in a
similar way as a large company competes with the others in a competitive
economic market. To that extent, parties have the right to keep some of the
activities hidden from the public view not because the activities are illegal but
for the simple reason that disclosure may be detrimental to its future
prospects.
92

Analysing these three models in the context of India would reveal that
broad requirements of disclosure required under RTI might be a progressive
step to take but not practically implementable and even the intervention of
judiciary is unlikely to produce effective results in the absence of political will to
implement the Act. In such a case, the approach adopted in countries like
Bulgaria, Indonesia etc. offers a useful alternate wherein a mutually acceptable
level of disclosure can be reached from the point of view of both citizens rights
and political parties.
V. POLITICAL RESISTANCE: GREATEST
CHALLENGE TO TRANSPARENCY
On the strength of the foregoing discussion about the merits of the
RTI, the one unassailable truth which emerges is that Knowledge if not
power, is definitely the first step in the direction of attainment of economic and

91
Access to Public Information Act, art. 3(2)(2) (2000).
92
Anirudh Burman, Transparency and Political Parties: Finding the Right Instrument, 48 (28) EPW 39
(2013).

72
political power.
93
It is then hardly surprising that secrecy is as difficult to
eradicate as the evils which it spawns.
94

Freedom of information laws irrespective of the time and country, have
always faced stiff political resistance. After Sweden became the first country to
enact RTI law in 1766, nearly two centuries elapsed before any other country
adopted the transparency law. To take an example closer home, in India the
citizens right to information was first declared to be a fundamental right in
1975, which was followed by a plethora of decisions by the apex court of the
country. But this failed to move the Government of India and it was only after
a decade of struggles, civil society movements, toothless legislative bills and
drafts that the Right to Information Act as we know it today, was passed in
2005. What finally serves as a driving force in all these situations is the ultimate
realisation among political parties that such an Act will serve a useful purpose
when they are not in power as it would empower them to maintain a check over
the political party which forms the government. But what happens when
transparency is demanded in the functioning of all the political parties (whether
or not they become a part of government)?
History is replete with instances where the government has overturned
the judicial decision which went against the pursuit of their own self-interest.
The first set of amendments to the RTI Act came within six months of the
passage of the Act by which the scope and power of the Act was considerably
weakened. The proposed amendments exempted from public scrutiny file
notings, documents under process, documents related to competitive
processes such as examinations and documents recording the material basis of
Cabinet decisions.
95
Similar attempts have also been made when the judiciary
tried to subject the Central Bureau of Investigation (CBI) to the RTI Act over
allegations that officials in the Bureau had amassed disproportionate assets. The

93
Ann Florini, The Battle Over Transparency, in THE RIGHT TO KNOW: TRANSPARENCY FOR AN
OPEN WORLD 1, 1 (Ann Florini ed. 2007).
94
John McMillan, Freedom of Information in Australia: Issue Closed, 8 FEDERAL LAW REVIEW 379
(1976-77).
95
Amita Baviskar, Winning the Right to Information in India: Is Knowledge Power?, CITIZEN ACTION
AND NATIONAL POLICY REFORM: MAKING CHANGE HAPPEN 201 ( J. Gaventa and R
Macgee eds. 2010).

73
legislature immediately responded by inserting CBI to the schedule of entities
that fell under Section 24 that deals with exemption.
96

In such cases, generally the political parties in the opposition can be
relied upon to create a massive uproar and build pressure on the government in
power by exposing their hypocritical stance. However, even that is unlikely to
happen in the current situation where all the political parties are unanimous and
complicit in their stand to overturn the decision that empowers the people. The
irony of the situation is most sharply defined in United Progressive Alliances
(UPA) reaction to the judgment. UPA which, until recently was basking in the
glory of spearheading the progressive piece of legislation called RTI is now
trying to wriggle out of a law which is its own creation. Congress has termed
the order as an adventurist approach which would get political parties
entangled in unnecessary things.
97
Similarly, BJP which was all set to raise
corruption and black money as a huge issue in the elections, initially expressed
its support for the decision but then quickly changed its course to argue that
there was lack of clarity on several issue such as the roles of the Election
Commission and CIC in regulating affair of political parties.
98
It also failed to
comply with the CIC order subsequently much like the other five political
parties.
99
Evidently, the ethics of rule following is insisted only to the extent
that it applies to the other people,
100
and does not harm the pursuit of their
own self or collective interest. Is clean, healthy politics then an unrealisable
dream?
VI. CONCLUSION
Political parties are private associations operating in the public domain
which form the basis of democracy. Conventionally, electoral laws such as the
Representation of the Peoples Act of 1951 have governed aspects of
functioning of political parties. This emphasis on state regulation has however,
now given way to the realisation that citizens should occupy the centre stage in
a democracy and all political parties should be accountable to the people. It was

96
Mukul Mudgal, Sunlight on the CBI, The Indian Express, Jun 28, 2011.
97
Aarti Dhar, Parties Reject CIC order on RTI, The Hindu, Jun 5, 2013.
98
Congress, CPM reject CICs order to bring them under RTI, BJP sees no wrong, The Times of India,
June 4, 2013.
99
Mohammad Ali, CIC puts 6 Parties on Notice for Not Implementing RTI, The Hindu, February 11,
2014.
100
UPENDRA BAXI, CRISIS OF THE INDIAN LEGAL SYSTEM 7 (1982).

74
in this context that the the right to information emerged as an offshoot of the
fundamental right to speech and expression, first by judicial expositions and
finally, by a legislative intervention in the form of the RTI Act as the political
leaders agreed to the symbolic qualities of open government and greater
engagement with the public. But as the common history of Nepal, Poland and
India demonstrate, the consequence of such a law in terms of exposure to the
wrongdoings of politicians and subjecting them to continuous public scrutiny,
has always affected the political will to enforce the law.
The judiciary on the contrary, has emerged as the champion of citizens
rights by taking a proactive and positive stance towards the right to
information, at times even by stretching the law to respond to the exigencies of
the hour. The decision in Subhash Chandra, running into fifty four pages is
among the lengthiest decisions rendered by the CIC since its inception in 2005.
In addition to giving effect to the longstanding demand of the public, this order
also gives us a glimpse of the hitherto unknown potential and expanding utility
of the RTI Act. Admittedly, the decision cannot serve as a panacea for all the
problems plaguing the political life of the country. For one, RTI Act requires
disclosure of only that information which has been recorded. Thus, when
political parties issue coupons instead of receipts for cash donations or spend
crores of rupees on elections without making a record, these unaccounted
transactions would largely remain outside public scrutiny. Furthermore, most
understandings which shape the activities and organisation of political parties
does not usually find a place on paper. There are deeper, more entrenched
problems about ideology, caste prejudice, gender bias etc. which are not
recorded and thus are impossible to be traced through papers.
What cannot be denied, however, is that this is a path breaking decision
on transparency in political life. But keeping the RTI Act intact in the face of
continuous attempts to undermine its power is the greatest challenge to RTI. The
examples of Nepal and Poland point out that the broad requirements of disclosure
required under RTI is progressive but not a pragmatic solution to the present day
problems. Similarly, while the approach of judicial interpretation and intervention
adopted by Mexico and Canada are laudable, it is clearly unlikely to work where a
legislature can practically nullify the decision of the Court by passing a
retrospective amendment to the law. In such a case, the approach adopted in
countries like Bulgaria, Indonesia etc. offers a useful middle ground. It provides an
alternate wherein a mutually acceptable level of disclosure can be reached from the

75
point of view of both citizens rights and political parties. So instead of completely
insulating political parties from the purview of RTI, an acceptable solution can be
reached by declaring in certain terms the information that political parties are
required to disclose. This would help overcome the political resistance to a great
extent because the hostile attitude towards RTI Act or any new transparency law
largely also stems from the fear of uncertainty about the extent of disclosure that
would be required. Such an approach would disperse this air of uncertainty and
ensure that transparency and openness are wisely nurtured and judiciously
deployed in order to serve its intended functions.

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.81%("9. +.$.+6.$ ("5 57="/*+" #" $/71; 4(+;./$? -%. $*:J.1/ (9(#" +.1.#6.5 %.(/.5 5#$1*$$#7"
*)7" /%. ."(1/4."/ 70 H74)("#.$ !1/> EFGK? -%#$ (+/#12. +.179"#$.$ /%. $/(+; 5#00.+."1.
:./=.." ( 174)("3 ("5 ( :("; ("5 (5671(/.$ 07+ $/+#1/.+ "7+4$ =%." #/ 174.$ /7 17+)7+(/.
976.+"("1. 70 :(";$? @($.2 AAA !117+5 17"/(#"$ 6(+#7*$ 4("5(/7+3 174)2#("1.$ =%#1% 1("
1%("9. /%. 0(1. 70 A"5#(" :(";$> :*/ /%. L*.$/#7" +.4(#"$ =%./%.+ $*1% 1%("9. =7*25 :. 07+
/%. 9775 7+ /%. :(5? -%. (+/#12. /%.+.07+. 5.26.$ #"/7 /%. )+7:2.4$ #" (57)/#7" 70 @($.2 AAA ("5
$*99.$/$ 4.($*+.$ /%(/ 1(" ."$*+. ( 47+. /+("$)(+."/ 3./ $/+7"9.+ :(";#"9 $/+*1/*+. /7 $*))7+/
( $/(:2. 0#"("1#(2 $3$/.4 #" A"5#(?
I. IN1RODUC1ION
Banking as a sector has always been unique and the interests o other
stakeholders appear more important with respect to it, than in the case o non-
banking and non-inance organisations.
1
In the case o non-inancial
corporations, the issue has been that o saeguarding and maximising share-
holder alue. In the case o banking, the risk inoled or depositors and the

V
th
\ear, B.A. L.L.B., National Law Uniersity, Odisha.
1
V. Leeladhar, H7+)7+(/. M76.+"("1. #" @(";$, Resere Bank o India Bulletin ,Dec, 2004, (6(#2(:2
. (/ http:,,rbidocs.rbi.org.in,rdocs,Speeches,PDls,61585.pd

8
possibility o contagion assumes greater importance than that o non-inancial
irms. lurther, the need or regulatory oersight is discernibly higher in banks
due to importance o stability o inancial system and in the larger interests o
the public. Since market mechanisms are not suicient to ensure proper
goernance in and o banks, the goernment does see reason in regulating and
controlling the nature o actiities, the structure o bonds, the ownership
pattern, capital adequacy norms, and liquidity ratios among others.
2

Some o the best corporate goernance practices which could be
adopted by banks include
3
:
a, 1imely realisation o ast paced changes in the economy
and consequently taking appropriate measures,
b, Lstablishing eectie, capable and reliable Board o
Directors,
c, Introducing a Corporate Code o Lthics by the banks
or themseles,
d, Lstablishing an oice o Chairman o the Board,
e, Lstablishing eicient Audit Committee, Compensation
Committee, and Nominating,Corporate Goernance Committee,
, Considering eectie Board compensation,
g, Disclosing inormation and establishing corporate
goernance procedures that will sere to enhance shareholder alue.
A stricter system o corporate goernance is required or banks in India
as the majority !"#" 0 o the banks, are in the public sector
4
and do not
compete with one another
5
so that the scope o checks and balances by and
among rials is limited. 1he increasing ocus on building up a more eicient
system o corporate goernance in banks has also been necessitated on account
o the inancial crisis exposed laws throughout inancial markets and prompted

2
%&" at 2.
3
Mridushi Swarup, '()*()+,# -(.#)/+/0# !/ ,1# 2+/3!/4 5#0,(), 1 IN1L J. MG1 & BUSINLSS
S1UDILS 6, 9 ,2011,.
4
P1I, 62% #7,#/&8 2+8#9 %%% !:*9#:#/,+,!(/ ,!:#, LieMint and the \all Street Journal ,Dec 30, 20
12,, +.+!9+;9# +, http:,,www.liemint.com,Industry,hzIzNq\qPjQ4GoS2uZsZO,RBI-
extends-Basel-III-implementation-time-by-3 months.html
5
'()*()+,# -(.#)/+/0# +/& 2+/38, +.+!9+;9# +, http:,,bankingindiaupdate.com,corporatego
ernance.htm |Last Accessed on 16 lebruary 2013|.

9
much inestigation into the way banks work.
6
1he recent BASLL III Accord,
which would remain in eect or the period o 2013-2018, has tried answering
these questions in terms o Corporate Goernance.
1he paper thereore

intends to study 1he Banking Laws ,Amendment, Act, 2012, ,hereinater
referred to as BLAA) speciically with respect to its adoption o the Basel III
norms in Part I and Part II.In Part III, it tries to analyse the changes made and
comment on its eectieness through an ealuation o the challenges that lie
ahead or the banking sector in India. 1he paper is concluded with suggestions
or a stronger and more transparent Banking system.

II. CORPORA1L GOVLRNANCL AND BANKING LA\S
,AMLNDMLN1, AC1, 2012
1o trace the history, in the year 2000, SLBI, based on the
recommendations o the Kumar Mangalam Birla Committee on Corporate
Goernance, instituted corporate goernance regulations or listed companies
under Clause 49 o the Listing Agreement. Public and priate banks were earlier
exempted rom such recommendations, but in 2002 the recommendations were
made mandatory or commercial banks listed on stock exchanges.
8
1hese
recommendations were in the orm o both guidelines as well as mandatory
requirements or sound corporate goernance o the listed banking as well as
non-banking companies. 1hey included ormation o an independent audit
committee by the board o the company and the unctions and responsibilities
o such committee, ormation o a remuneration committee to determine the
amount payable to executie directors, arious disclosures to be made by the
company, redressal o shareholder grieances and delegation o the power o
share transer. Most importantly, the Committee set a binding recommendation
or a detailed compliance report in a separate section on Corporate Goernance
in the Annual Report o the Company.

6
lamid Mehran, Alan Morrison & Joel Shapiro, !"#$"#%&' )"*'#+%+,' %+- .%+/01 23%& 3%*' 4'
5'%#+'- 6#"7 &3' 89+%+,9%:
!#9090; lederal Resere Bank o New \ork Sta Reports No. 502 ,Jun 1, 2011, %*%9:%<:' %& htt
p:,,papers.ssrn.com,sol3,papers.cmabstract_id~1880009
Basel III 1he pressure is building, KPMG ,Dec, 2010, %*%9:%<:' %& http:,,www.kpmg.com,B
l,en,Documents,Basel203-20Pressure20is20buildingL280A6.pd
8
=>.? !"779&&'' "+ !"#$"#%&' )"*'#+%+,' )@9-':9+'0 &" ?+-9%+ !"77'#,9%: .%+/0 :90&'- 9+ =&",/
>A,3%+B'0, DBOD No. BC.112 ,08.138.001,2001-02, ,Aug 4, 2002, %*%9:%<:' %&
http:,,rbidocs.rbi.org.in,rdocs,notiication,PDls,29648.pd.

80
1he BLAA aims to permit new entry, consolidation and expanded
oreign presence in a sector that is the repository o most o the household
saings in the country.
9
Lmpirical studies reeal that households account or
58.1 o the total bank deposits.
10
1hereore the need or additional care
towards corporate goernance is being deeply elt. It is also important to note
that ery recently, the RBI has set up a panel to reiew the goernance practice
ollowed by banks.
11
1he last time such a committee was established, was in the
year 2002, under the chairmanship o A.S.Ganguly, whose stated objectie was
to suggest ways to ensure a more eectie role o the board members.
12
1he
RBI in its 2003-04 Report stated that:
The concentrated shareholding in banks controlling substantial amount of public
!"#$% '(%)% *+) ,-%. (! /(#/)#*,0*-(# (! (1#),%+-' 2-3)# *+) 4(,05 +060,$ ',(75)4 0#$
5-#.02)% (! (1#),% 1-*+ 7"%-#)%%)%8 9)#/) $-3),%-!-/0*-(# (! (1#),%+-' -% $)%-,075) 0% 05%(
)#%",-#2 !-* 0#$ ',('), %*0*"% (! %"/+ (1#),% 0#$ $-,)/*(,%8 9(1)3),: 1-*+ $-3),%-!-)$
(1#),%+-': *+),) -%: '),+0'%: 0# )3)# 2,)0*), /(#/),# (3), /(,'(,0*) 2(3),#0#/) 0#$ ',(!)%%-(#05
40#02)4)#* -# (,$), *( %0!)2"0,$ $epositors interest and ensure systemic stability8
13

1he BLAA enhances powers o RBI in terms o inolement in the
management o the banks.
14
It enables RBI to issue new bank licenses to
corporate houses and strengthen the RBIs hand with powers to supersede
entire boards o recalcitrant banks that ail to comply with its directions.
15

Beore the amendment, the RBI only had powers to remoe a director
or oicers o a banking company and not the board as a whole. loweer, now
the RBI would hae the power to supersede the entire board, in public interest,
and to appoint an administrator to run the bank or a period not exceeding 12

9
C.P. Chandrasekhar, ;-2 <+0#2) -# ;0#.-#2, 29 ,26, lRON1LINL ,2012,, 030-5075) 0*
http:,,www.rontlineonnet.com,l2926,stories,20130111292603600.htm
10
Arind Jayaram, 9("%)+(5$% =//("#* !(, >?8@ '), /)#* (! A#$-0# ;0#. B)'(%-*%, BusinessLine, Jun 10,
2013.
11
L1 Bureau, C;A D)*% "' E0#)5 *( C)3-)1 F(3),#0#/) (! ;0#. ;(0,$%: 1he Lconomic 1imes , Jan 21,
2014.
12
C)'(,* (! *+) <(#%"5*0*-3) F,("' (! B-,)/*(,% (! ;0#.% G H-#0#/-05 A#%*-*"*-(#% A4'5)4)#*0*-(# (!
C)/(44)#$0*-(#%: DBOD. No.BC. 116 , 08.139.001,2001-02, ,Apr, 2002,, 030-5075) 0*
http:,,rbidocs.rbi.org.in,rdocs,PublicationReport,Pds,262.pd.
13
RBI ANNUAL RLPOR1, 1RLNDS AND PROGRLSS Ol BANKING IN INDIA, 213 ,Chapter VIII,
,2003-04, 030-5075) 0* http:,,rbidocs.rbi.org.in,rdocs,Publications,PDls,58841.pd ,Accessed
on 23-03-2013,.
14
Banking Regulation Act 29A 12B ,1949, 0% 04)#$)$ 7I Banking Laws ,Amendment, Act o
Jan 5, 2013.
15
A$8 36ACA, 30 0% 04)#$)$ 7I Banking Laws ,Amendment, Act o Jan 5, 2013.

81
months.
16
1he amendment increases the rates o existing monetary penalties
that RBI can impose on a bank i it disobeys its rules and directies or gies
alse inormation.
1

1he aboe-mentioned amendment is a giant step taken, without
satisying the technicalities that are required to be in place. 1he questions o the
approach to be taken by the RBI to successully delier the responsibilities that
hae been bestowed upon it and the direction to be undertaken or
implementation o the legislatie amendments, especially considering the huge
number o banks operating in the economy, still remain unanswered.
Principally, the idea is strong but factors such as investors confidence and
protection, depositors security, business stability are at stake, in wake o the
2008 inancial crisis. lurther, Sec 12B o Banking Regulation Act ,hereinater,
referred to as the Act) as inserted by the BLAA also proides RBI with the
power to permit acquisition o 5 or more oting rights in a bank, it may also
impose additional conditions i it deems it. Such extraordinary powers
emphasise public trust doctrine, because een a small ailure may result in huge
disadantage to the stakeholders in place.
Superisory powers which hae always existed with the RBI also hae
been enhanced through Sec 29A o the Act. 1he section gies power to the RBI
to call or inormation and returns rom the associate and group companies o
the banking companies and to inspect them, i necessary. 1hese powers o
greater superisory oersight would be an excellent tool to maintain a closer
check, at a time when the RBI proposes to grant licenses to industrial houses
or setting up new banks. 1he Act also substantially increases the penalties and
ines or iolations o its proisions and rules.
18
It also empowers the RBI to
demand penalty interest rom the bank i the bank ails to maintain the
prescribed minimum amount o Cash Resere Ratio ,CRR, on any gien day.
19

Such enhanced powers o the RBI can essentially be understood to
indicate that the goernance o the banks is mostly in the hands o RBI and that

16
!"# %&'()*+,(-& "&)&+./01 2(** #344+.56 70& 2+89(8' %+:) ;<4&8=4&8,> 2(**1 ?@AA, PRS India, ,Jul 5,
2011, +-+(*+B*& +,
http:,,www.prsindia.org,administrator,uploads,media,BankingLaws,BankingLaws_Amendm
ent_BillSummary, 2011.pd
1
<8+*5)() CD ,0& 2+89(8' %+:) ;<4&8=4&8,> </,1 ?@A?, Albright Stonebridge Group ,leb 14, 2013,,
+-+(*+B*& +, http:,,www.albrightstonebridge.com,banking_02.14.2013,
18
#3E.+ note 14, 46, 4A +) +4&8=&= B5 Banking Laws ,Amendment, Act o Jan 5, 2013.
19
#3E.+ note 1.

82
such powers can be exercised at any point o time when elt necessary.
lurthermore, in light o the impact that incidents like the Satyam scandal hae
on the inancial system, such powers with the RBI are most deinitely justiied.
1he recent Cobra-Post sting operation reealed employees o three leading
banks namely Axis bank, lDlC and ICICI indulging in suggesting measures to
legitimise unaccounted money. RBI took them to task and penalised the said
banks requiring them to pay 5 crores, 4.5 crores and 1 crore respectiely.
20
Such
episodes hae seere bearing on corporate goernance as they bring to light the
rampant practice o illegal banking operations which can be curbed through a
strong goernance structure in place. In the light o the enhanced powers
coupled with a dire need or inancial stability, a ull-ledged structural and
unctional reiew o RBI as an institution would be the call o the day, as RBI
has itsel conessed to being underequipped at times.
21
1he reiew would go a
long way in bringing structural modiications to suit the changing needs o
inancial system.
Seen in isolation, though the motie behind the changes is !"#$ &'()* it
still needs to be seen whether or not they would work or the inancial market
as a whole. As mentioned earlier, strictly speaking, banks are not corporate
entities and there are many exemptions listed in the Companies Act 1956
,hereinafter referred to as CA56) and Companies Act 2013 ,hereinater
referred to as CA13,. Sec 1,4,,c, o CA13 proides that Banking Companies
shall be primarily goerned by Banking Regulation Act, 1949.
22

Although CA13 is outside the puriew o this paper yet an intelligible
connection appears between the two legislations, as the CA13 essentially tries
to gie way to banking companies and its regulation towards an independent
unctioning. 1he structure so established suers rom one ery crucial law:
1. In the matter o Serious lraud Inestigation Oice ,SlIO,
under the CA13, does it proide suicient powers to inestigate een banking
companies 1here are two interpretations in this regard:

20
P1I +"!,$-"./ 01-".)2 345 -)#$6'.). 71'.* 89:+* 5+5+5 4$#;. &", 3<6) ='"6$/'"#.* 1he Lconomic
1imes, Jun 11, 2013.
21
lor e.g., L1 Bureau, RBI says not equipped to regulate MlIs, 1he Lconomic 1imes, August 13,
2011.
22
1he Companies Bill 2012, Bill No. 121C o 2011, $>$'6$!6) $/ http:,,www.mca.go.in,Ministry,
pd,1he_Companies_Bill_2012.pd |Last Accessed on 24 March 2013|.

83
a. Relying on the word company in Sections 211 and 212, an
expansie interpretation will include banks as well.
b. Relying on Sec 1,4,,c,, the BLAA has gien additional powers to
RBI to inestigate banks in cases o raud or potential raud.
1he author beliees that the irst interpretation would sere the purpose
better because this would reduce the burden o keeping a check on the banks
rom solely the RBI to one that is shared between the RBI and Ministry o
Corporate Aairs SFIO, thus bringing in more eiciency and eectieness in
the mechanism. Also in absence o any express exclusion o banks in Sec 211,
212 of the CA13 the proisions o SlIO extends to banking companies as well.
Moing urther, shareholder actiism, also known as retatiov.bi
ivre.tivg, is a phenomenon which ocuses primarily on the poorly perorming
irms in their portolio aimed at pressurising the management o such irms or
improed perormance and thereby enhancing shareholder alue, is an excellent
way to assert proper goernance o a company.
23
In the past 20 years, mostly in
the \est, one could obsere the rising presence o such actiism. 1he BLAA in
this respect has made certain crucial alterations. Preiously there was a cap o
1 on oting rights to priate inestors in public sector banks. 1his in eect
meant that the priate inestors had a miniscule role to play in the unctioning
o the bank een as a shareholder.
24
But with the current amendment, the cap
on the oting rights has been increased to 10. Besides improing the role o
the priate inestors, this would also attract oreign institutional inestors, who
hae, until now, been sitting on the sidelines due to limited oting rights as ar
as inesting in public sector banks is concerned.
25

lurthermore, BLAA has also changed the oting cap in the priate
banks, increasing it rom the present threshold i.e. 10 to 26.
26
1his means
that the promoters and their group can hae oting powers up to 26. 1his has
been called a double edged sword because on the one hand, it gies the
promoters a better say in the management o the bank and coupled with the

23
Stuart L. Gillan & Laura 1. Starks, Cororate Corervavce Proo.at. ava barebotaer .ctiri.v: 1be Rote
of v.titvtiovat vre.tor., 5 J. lINANC. LCON. 25, 26 ,2000,.
24
Gurpur, av/ivg .vevavevt itt: !bat are it. evefit. to tbe av/ivg Pvbtic. ,Dec 20, 2012,, araitabte
at http:,,www.moneylie.in,article,banking-amendment-bill-what-are-its-beneits-to-the-
banking-public,30304.html
25
vra note 1.
26
Banking Regulation Act 12,2, ,1949, a. avevaea b, Banking Laws ,Amendment, Act o Jan 5,
2013.

84
higher commitment o the promoters it could be a spring board or aster
growth o the bank. On the other hand, it can inluence the decisions o the
management, which may or may not be in the best interest o the bank and its
other stakeholders.
2
1hereore this necessitates a close watch on the promoters
by RBI in order to successully achiee the desired purpose o the change. 1he
priate banks must be closely monitored, to ensure smooth unctioning and
intended use o the oting rights.
1he beneits o large shareholding may be summarised in terms o the
convergence-o-interest hypothesis and the efficient-monitoring
hypothesis. According to these hypotheses:
1. Licient Monitoring Large shareholders are likely to be more
eicient than small and dispersed shareholders in monitoring company
management since they hae substantial inestments at stake as well as
signiicant oting power to protect these inestments,
28
and,
2. Conergence o Interest Also likely to engage in relational
inesting and be more committed to a company in the long run,
29
all o which
are likely to hae a positie impact on company alue. In addition, large
shareholders are likely to mitigate the collectie action problem that is present
among dispersed shareholders in disciplining ineicient management especially
i management stands in the way,
30

1he aboe, i properly implemented, can proe adantageous to the
manner in which banking system works. But in order to actually to hae the two
hypothesis work in banks aour, a balance needs to be maintained between
the interests o shareholders and that o depositors. Shareholders want proits
to be maximised by taking on greater risks, depositors hae an oerriding
preerence or the saety o their deposits and hence, or lower risk. \ith the
BLAA, the shareholders say in the management o banks has increased while

2
"#$%& note 24.
28
ADOLl BLRLL & GARDINLR MLANS, 1lL MODLRN CORPORA1ION AND PRIVA1L PROPLR1\
200 ,1932,, "'' &()*, Jensen Michael & \illiam Meckling, +,'*%- *. /,' 01%23 4&5&6'%1&( 7',&81*%9
:6'5;- <*)/) &5= >?5'%),1$ "/%#;/#%'9 3 J. lINANC. LCON. 305, 320 ,196,.
29
Black Bernard, ",&%',*(='% :;/181)2 &5= <*%$*%&/' @*8'%5&5;' 15 /,' A51/'= "/&/'), 1lL NL\
PLAGRAVL DIC1IONAR\ Ol LCONOMICS AND LA\, ,Peter Newman ed. 1998,, "'' &()* Jayati
Sarkar & Subrata Sarkar, B&%6' ",&%',*(='% :;/181)2 15 <*%$*%&/' @*8'%5&5;' 15 C'8'(*$156 <*#5/%1')3
D81='5;' .%*2 E5=1&, 2 IN1L. RLV. Ol lINANCL ,March, 2000,.
30
Peter Dodd & Jerold \arner, >5 <*%$*%&/' @*8'%5&5;'3 : "/#=- *. F%*G- <*5/')/), 11 J. lINANC.
LCON. 401, 430 ,1983,.

85
the depositors still hold the good aith doctrine which emphasises aithulness
to an agreed common purpose and consistency with the justiied expectations
o the other party ,depositors,
31
against the bank to hae deposits returned in
time and on demand.
Another amendment is with respect to mergers and acquisition, wherein
although the power has been gien to Competition Commission o India
(CCI) to approe o such compromises, but in cases where the banks are in
trouble, the RBI would hae the inal say.
32
1his enables task sharing by the two
bodies giing rest to the preious controersies o conlict o powers o RBI
and CCI.
33
1his has an important bearing on the goernance issue as the
amendment, along with the new bank licensing proisions, broadens the scope
or a better market which would encourage banks to goern themseles in a
competitie manner.
\ith the diersiication o shareholding and separation o ownership
and management o the banks, a positie step towards enhanced goernance
has been taken. loweer a lot more requires to be done in the area, especially
or improing transparency in banking operations. More importantly, there
need to be changes aimed at reeing the public sector banks rompolitical
intererence and rom their dual control by the inance ministry and the RBI.
1hese changes, as and when incorporated, would act as a uniersal solution
towards effective governance as it will instil investors confidence.
34

III. CORPORA1L GOVLRNANCL AND BASLL III
ACCORD
1he Basel Committee on Banking Superision ,lereinater reerred to
as BCBS) provides a forum for regular cooperation on banking superisory

31
Summers, 1be Ceverat Dvt, of Cooa aitb t. Recogvitiov ava Covcetvatiatiov, 6 CORNLLL L.
RLV. 810 ,1982,.
32
vra note 30, 44A 44B a. avevaea b, Banking Laws ,Amendment, Act o Jan 5, 2013, ee
at.o, Pradeep S. Mehta, !itt R be a etter ]vage for av/ivg Merger.., Business Standard, May 9,
2012, ee at.o, Sharad Sharma, 1be av/ivg ar. ;.vevavevt) itt, 2012 .v v.igbt ,Dec 31
2012, araitabte at http:,,www.lexology.com,library,detail.aspxg~51cbc11-58d-4ea3-ae3-
8636b085291
33
Regvtator. qvabbte Orer ]vri.aictiov, Money 1oday ,Jun 10, 2010,, araitabte at:
http:,,businesstoday.intoday.in,story,regulators-squabble-oer-jurisdiction,1,84.html |Last
Accessed on 10 March 2014,, 1vrf !ar! ectorat Regvtator. r.. CC, CNBC 1V18, ,Jun 16, 2012,,
aailable at http:,,theirm.moneycontrol.com,story_page.phpautono~18698
34
vra note 32.

86
matters to enhance understanding o key superisory issues and improe the
quality o banking superision worldwide. It seeks to do so by exchanging
inormation on national superisory issues, approaches and techniques, with a
iew to promoting common understanding.
35

Presently, the global and the domestic economy scenarios continue to
be grim andare ar more subdued than in 2012. Growth o the Indian economy
or 2013-14 is projected at 6 - per cent signiicantly below the 9 per cent
growth rate enisaged during the 1welth Plan and well below the desired goal
o double digit growth rate.
36
1he Indian banking sector has also aced
signiicant challenges.
3
1he need o the hour is to restore investors confidence
in the inancial system or which in turn requires the establishment o a strong
banking structure. 1his structure must comply with the highest standards o
goernance to ensure its smooth unctioning.
1he Basel III,lereinater B3,Accord raises the minimum capital
requirements or common equity capital rom 2 to 4.5 o risk-weighted
assets and the 1ier 1 ratio rom 4 to 6 eectie as o 2015.
38
Subsequently,
ully eectie as o 2019, banks will be required to add a conseration buer o
2.5 percentage points on the top o common equity and 1ier 1 capital ratios.
1he buer is designed to ensure that banks build up capital buers during
normal times ,i.e. outside periods o stress,, which can be used against losses
that are incurred during a stressed period. 1he requirement is based on simple
capital conseration rules designed to aoid breaches o minimum capital
requirements as mentioned aboe. 1he aboe capital requirements will motiate
a liberal inestment policy because the unds required to meet them are too
humongous to solely rely on domestic market.
B3 strengthens the three Basel II ,lereinater B2, pillars o Mivivvv
Caitat Reqvirevevt., verri.or, Rerier Proce.. and Di.cto.vre c Mar/et Di.citive to:
1. Lnhanced Minimum Capital & Liquidity Requirements ,Pillar 1,

35
.bovt a.et Covvittee, Bank o International Settlement, ,Jan 23, 2013,, araitabte at
http:,,www.bis.org,bcbs,about.htm
36
K. C. Chakrabarty, vaiav av/ivg ector: Pv.bivg tbe ovvaarie., RBI Monthly Bulletin, March
2013 , araitabte at http:,,rbidocs.rbi.org.in,rdocs,Bulletin,PDls,03SPB080313l.pd. |Last
Accessed on 14 March 2013|
3
a.
38
BIS Press Release, Group o Goernors and leads o Superision announces higher global
minimum capital standards, Bank or International Settlements, ,Sep 12 2010, araitabte at
http:,,www.bis.org,press,p100912.htm.

8
2. Lnhanced Superisory Reiew Process or lirm-wide Risk
Management and Capital Planning ,Pillar 2,
3. Lnhanced Risk Disclosure & Market Discipline ,Pillar 3,
\hile Pillar 1 prescribes a risk-sensitie calculation o capital
requirements that, or the irst time, and explicitly includes operational risk in
addition to market and credit risk. In this paper, Pillars II and III shall be dealt
with as they relate to goernance aspect o the capital requirement and
maintenance as mandated by B3.
A. PILLAR 2 SUPLRVISOR\ RLVIL\ PROCLSS
1his pillar recognises the necessity o exercising eectie superisory
reiew of banks internal assessments of their overall risks to ensure that bank
management is exercising sound judgement and has consistent capital or these
risks:
39

1. Superisors would ealuate the actiities and risk proiles o
indiidual banks to determine whether those organisations should hold higher
leels o capital than the minimum requirements in Pillar 1 would speciy and to
see whether there is any need or remedial actions.
2. \hen superisors engage banks in a dialogue about their
internal processes or measuring and managing their risks, they would help to
create implicit incenties or organisations to deelop sound control structures
and to improe those processes.
1he superisory approach adopted is deined as risk-based and
organisation-based. 1he aim o the control procedures is to ensure that the
banks are managed on a sae and sound basis: the ocus is on the risks
undertaken on the one hand, and on the adequacy o its capital structure,
internal controls, and organisation or dealing with them on the other.
40
1he
intermediaries independence in the management of their business also implies
that they are responsible or managing their risks, and is counter-balanced by
the supervisory authorities verification that the level of risk undertaken is

39
!"#$% '()$$ *+%%")#, Basel II Risk, ","+%"-%$ ". http:,,www.basel-ii-risk.com,Basel-II,Basel-1hree-
Pillars,index.htm |Last Accessed on 2 April 2013|.
40
Llisabetta Gualandri, Basel 3, Pillar 2: The Role of Banks I/.$)/"% 01,$)/"/2$ "/3 41/.)1% 56/2.+1/,
,Center or Research in Banking and linance, UNIMORL, \orking Paper Series, Aug 12,
2011,, ","+%"-%$ ". http:,,ssrn.com,abstract~1908641

88
consistent with the adequacy and eicacy o the internal risk buers: capital
adequacy, organisational processes and internal control system.
41

Pillar II, describes the mandatory processes or both banks and
regulators to ulil the capital-adequacy requirements.
Banks: 1o conduct Internal Capital Adequacy Process ,ICAAP,
to demonstrate implemented methods and procedures to ensure adequate
capital resources.
Regulators: 1o conduct a Superisory Reiew and Laluation
Process (hereinafter SREP) to assess the soundness of a banks ICAAP.
Responsibility or deining and implementing the ICAAP lies with the
banks top management, within the context o its internal goernance, whose
main obligations are to deine the business objecties and the risk attached, to
establish the organisational structure, to assign roles and responsibilities and
establish the structure o inormation lows and reporting, and to decide how
the internal control system is to be organised.
42
\hile the superisory authority
are intended to ealuate any risks arising rom the inadequacy o banks' general
goernance, organisational and control systems, ocusing on the ownership
structure and management and control bodies, the corporate organisational
structure, and the control unctions ,internal audit, risk management and
compliance unction,.
43

1hough this Pillar has adequately and appropriately addressed the
concern, the compliance with the same is a hazard. Apart rom accelerating an
industry-wide capital shortage, new practices under Pillar 2 and ICAAP may
gie rise to an unleelled playing ield across jurisdictions. Because Pillar 2 is
principles-based rather than rules-based, it is subject to national superision,
which carries a risk o inconsistent interpretations and regulatory uncertainty.
44

In light o B3 and its complexities, some institutions are already changing the
lens they use to guide the bank, switching from an economic to a strictly

41
"#$
42
%&'( )*+#,-+.,/ 0. 12, 344-+561+0. 07 12, (*4,89+/08: ;,9+,< =805,// *.#,8 =+--68 >, Committee o
Luropean Banking Superisors, ,Jan 25, 2006,, 696+-6?-, 61 http:,,www.eba.europa.eu,document
s,10180,16094,GL03.pd,905895-ba-4e39-bac9-3de312545
43
"#$
44
Sonja Petsch et al., @6/1,8+.A "%33=B 352+,9+.A &C5,--,.5, +. 12, D,< E08-# 07 (5685, %64+16-,
,McKinsey, \orking Papers on Risk, ,No. 2, May 2011,.

89
regulatory perspective. But this may well weaken the banks internal risk-
management practices.
45

lurthermore, superisors too oten ind themseles oermatched when
challenging well-paid bank sta about the integrity o their regulatory capital
calculations. Only in extreme circumstances do superisors eel empowered to
impose supplemental capital requirements.
46
Compared to B2, ollowing areas
hae been improed in pillar 2 under B3:
1. lirm-wide goernance and risk management,
2. Capturing the risk o o-balance sheet exposures and
securitisation actiities,
3. Managing risk concentrations,
4. Proiding incenties or banks to better manage risk and returns
oer the long term,
5. Sound compensation practices.
1hese areas were earlier neglected, but now hae been taken care o.
Also, with the implementation o B3 it has been obsered, or rather eidence
has been ound suggesting, that banks that managed to integrate their internal
models into robust risk-management processes !"#" Pillar 2 perormed better
throughout the crisis than banks managing capital solely on Pillar 1 which
proide or minimum capital requirement as mentioned aboe.
B. PILLAR 3 MARKL1 DISCIPLINL
Pillar 3 relates to market discipline and assumes expanded risk
disclosures will help keep banks in line by enabling inestors to reward or
punish institutions on the basis o their risk proile.
4
It leerages the ability
o market discipline to motiate prudent management by enhancing the degree
of transparency in banks public reporting. It sets out the public disclosures that
banks must make that lend greater insight into the adequacy o their
capitalisation.
48
1he BCBS beliees that, when marketplace participants hae a
sufficient understanding of a banks activities and the controls, it has in place to

45
%&"
46
Daid Rowe, 1he orgotten pillars o Basel II, Risk Magazine ,Jan 10, 2013,, '('!)'*)# '+
http:,,www.risk.net,risk-magazine,opinion,2232342,the-orgotten-pillars-o-basel-ii
4
%&"
48
,-./' note 39.

90
manage its exposures, they are better able to distinguish between banking
organisations so that they can reward those that manage their risks prudently
and penalise those that do not.
49

1o put it simply, Pillar 3 disclosures coer the ollowing aspects rom
both a qualitatie and a quantitatie standpoint:
50

1. Scope o application o the capital adequacy ramework,
2. Capital structure and capital adequacy,
3. Credit risk ,requirements are ery extensie or banks adopting
the more adanced Internal Ratings-Based, or IRB, approaches,,
4. Securitisation,
5. Market risk,
6. Lquities,
. Interest rate risk in the banking book, and
8. Operational risk ,requirements are more onerous or banks
adopting the Adanced Measurement Approach, or AMA,.
1he BCBS has ound that !"#$ &'$() ** +(,-#+(.(/! #$ /0! .(! #/ ' 10/$#$!(/!
2'3 43 4'/5$6 7"( )'15 08 10/$#$!(/13 #/ 40!" !"( )(9() 08 :(!'#) ;+09#:(: '/: !"( 80+.'! 08 !"(
:#$1)0$-+( .'5($ !"( '/')3$#$ '/: .0/#!0+#/< 08 !"#$ #/80+.'!#0/ :#88#1-)!.
51
1hereore in
addition to aboe B3 has proposed ollowing enhancements to Pillar 3:
52

1. Securitisation exposures in the trading book,
2. Sponsorship o o-balance sheet ehicles,
3. Re-securitisation exposures, and
4. Pipeline and warehousing risks with regard to securitisation
exposures.

49
*:6
50
Christophe Cadiou & Monika Mars, &'$() ** =#))'+ >? @"'))(/<($ 80+ 4'/5$, 1he Journal o Global
perspecties on challenges and opportunities, '9'#)'4)( '! http:,,www.pwc.com,gx,en,banking-
capital-markets,pd,Basel.pd |Last Accessed on 2 March 2013|.
51
=#))'+ > :#$1)0$-+( +(,-#+(.(/!$ (/"'/1(: 43 !"( &'$() @0..#!!((, Risk Business, ,2011,, '9'#)'4)( '!
https:,,subscriber.riskbusiness.com,Componentliles,\ebsite,InterestingReading_lilename_
141.pd |Last Accessed on 2 April 2013|.
52
Lnhancement to the Basel II lramework, Bank or International Settlements, ,July 2009,
'9'#)'4)( '! http:,,www.bis.org,publ,bcbs15.htm |Last Accessed on 2 April 2013|.

91
Banks are also required to strongly engage in pro-actie disclosure not
limited to the required inormation, but to articulate how these actors
complement and support their oerall risk management ramework.
53

1he enhancement in B3 rom B2 is commendable yet the
implementation part remains questionable. Pillar 2 o B3 must act tough to
keep a check on Pillar 3, needless to point out the crucial inter-connection
between all the three pillars and in order or the B3 to gie the banks a relie
rom the current depression is the successul implementation and compliance
o all the three pillars.
IV. ClALLLNGLS AlLAD lOR INDIAN BANKING S\S1LM
Indias engagement with the global economy became deeper from the
1990s, and since then the global integration has only increased.1he economy
then could withstand the blow deliered by the 2008 inancial crisis to global
inancial market, on account o three actors:
,1, 1he robust, well capitalised and well-regulated inancial sector,
,2, Gradual and cautious opening up o the capital account, and
,3, 1he large stock o oreign reseres.
54

lortunately India, along with most o the emerging economies like
Brazil, South Arica and Philippines, was lucky to aoid the irst round o
aderse eects, because its banks were not oerly exposed to sub-prime lending
and were subject to strong goernment regulation. loweer, the indirect
impact ,also called the second round o impact, o the crisis aected the Indian
economy quite signiicantly, as stated aboe the outlow o lIIs compelled
Indian banks and corporations to shit their credit demand rom external
sources to the domestic banking sector.
55
1hese eents put considerable
pressure on liquidity in the domestic market and consequently prooked a
credit crunch. 1his credit crunch, coupled with a general loss o conidence,

53
Basel Committee on Banking Superision, Pillar 3 disclosure requirements or remuneration, 3
,July 2011,, !"!#$!%$& !( http:,,www.bis.org,publ,bcbs19.pd ,Accessed on 02-04-2013,.
54
Mathew Joseph, )$*%!$ +#,!,-#!$ ./#0#01 2*3 3!0 4,5#! 467!-(&589 3 ,Presented in In\Lnt-DIL
Conerence on Global linancial Goernance Challenges and Regional Responses, September
3-4, 2009,.
55
Raji Kumar & Pankaj Vashisht, ./#0#09 46%!$!,-&09 !,5 4,5#!, ,ADB Institute \orking Paper,
No. 22, March 2011,.
"#$% &'&(') *+', " -((./ $

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^6D62628 T4=46 59,6C,@ Indias Experience during Current Global Crisis: A Capital Account Perspective@
IVHW a.U'-& a+'-&J )/*-/[ M#Y@ M#M VPB25 "#$#W,
HM
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7,6&/)+.(8; <* <88,881,*+@ M P, Q-X, (/)*, )/(/T)&b "#H@ "#H V$00%W,

93
to weak legal protection, poor disclosure prerequisites and oerriding owners.
60

1he priate banking sector is purposely opting to ignore certain corporate
goernance ethics as it has ested interest o some parties.
61
It has also been
obsered that 63 o the Public Sector Banks ,PSBs, hae potential or
increase in proitability through eiciency improement, which ultimately
depends on the quality o goernance.
62

PSBs are state-controlled banks and their boards are dominated by
representaties o the goernment. 1he need or the board to be the guardian
o shareholder welare has not ound aour with these banks as the
Goernment o India is their largest shareholder.
63
Since these banks orm the
majority o banks in India, goernance o the same assumes great importance.
1he dominance o directors as the representatie o the goernmenthas proed
to be counterproductie.
64
In act, it oten seres to distort the incentie
structure, erode discipline and reairm the aith o these institutions in the
deep pockets of the government.
65
It has been aptly obsered that on an
aerage, greater state ownership o banks tends to be associated with a poorer
operating inancial system.
66

A single person has been entrusted with the responsibility o being the
Managing Director as well as the Chairperson in most PSBs. 1his again, is a
cause o worry. A proper trade-o between the duality and non-duality o the
highest post is thus crucial or institutions like banks, speciically in PSBs,

60
1.G. Arun, & J.D. 1urner, Corporate Goernance o Banking Institutions in Deeloping
Lconomies: Concepts and
Issues, 810 ,2002,, araitabte at http:,,unpan1.un.org,intradoc,groups,public,documents,NIS
PAcee,UNPAN01541.pd |Last Accessed on 2 April 2013|.
61
Banaji & Mody, Cororate Corervavce ava tbe vaiav Prirate ector, ,Uniersity o Oxord, QLl
\orking Paper Series, No. 3, 2001,.
62
Kshama V. Kaushik & Rewa P. Kamboj, tva, ov tbe tate of Cororate Corervavce iv vaia:
Cate/eeer. of Cororate Corervavce Re.erre av/ of vaia, ,2011,, araitabte at
http:,,www.iica.in,images,RBI_and_Gatekeepers_o_corporate_goernance.pd
|LastAccessed on 10 March 2014|, Sunil Kumar & Satish Verma, 1ecbvicat fficievc,, evcbvar/.
ava 1arget.: . Ca.e tva, of vaiav Pvbtic ector av/., PRANJAN, 25, 280 ,Vol. XXXI, Jan-Mar
2003,.
63
Pushkar Gupta, Cororate Corervavce iv vaiav av/ivg ector, 2 ,200-2008,, araitabte at
http:,,edissertations.nottingham.ac.uk,1888,1,08MAlixpg3.pd.pd |Last Accessed on 2 April
2013|.
64
a.
65
RBI, RLPOR1 ON CURRLNC\ AND lINANCL: 1999-2000, 24 ,2001,.
66
vra note 63 at 24.

94
where the senior directors are nominated by the goernment.
6
lurthermore,
goernance through committees such as Audit, Asset Liability Management,
Compensation, Risk Management, Inestor Grieance, Business Strategy,
Credit and Nomination has not yet attained the requisite popularity either in
priate or public sector banks.
68
As a result, the transparency leels o the banks
depict a ery gloomy picture. A couple o banks, !"#$, the SBI and the ICICI
hae established these committees, but the work deliered by them is ar rom
the international standards as they ail to meet the independence and
transparency requirement.
69

Another issue that Indian banks ace is that o remuneration and
compensation. Interestingly, in contrast to most other jurisdictions, the Resere
Bank has the power, in terms o the Banking Regulation Act, to regulate board
compensation, including the pay and perquisites o the CLO o priate sector
banks.
0
Post the 2008 inancial crisis,the RBI hastried conceptualising this issue
and has proposed guidelines on %&'()*+,-"&* &/ 01&2) 3"') 4"5)6-&5+7%1")/
Executive Officers/Risk Takers and Control Staff. 1he guidelines are currently in
orce, the same was although initially deerred pending the BCBS inal report
which was released in May-July.
1
1he debate still persistson whether or not
Non Lxecutie Directors should be subject to ixed remuneration.
In this regard the \orking Group ,\G, on Banking has recommended
ollowing:
2

1. 1he human resource policy documents need to be looked at
comprehensiely by bank superisors and consequently also suggest

6
89$ at 28.
68
89$ at 29.
69
Blue Ribbon Committee on Improing the Lectieness o Corporate Audit Committees,
Report and Recommendations, 54 1he Business Lawyer 106, 100 ,1999,, :)) ,2+&, +;(5, note
63 at 29.
0
D. Subbarao ,Inaugural Address,, %&5(&5,-) <&!)5*,*6) &/ =,*>+ "* 8*9", 8* ?;5+;"- &/ ?5&9;6-"!"-@
AB6)22)*6), 15 lICCI-IBA ,lIBAC, Conerence ,2011, ,!,"2,C2) ,-
http:,,rbidocs.rbi.org.in,rdocs,Speeches,PDls,lICCIIB230811.pd |Last Accessed on 1
March 2014|.
1
RBI, <;"9)2"*)+ &* %&'()*+,-"&* &/ 01&2) 3"') 4"5)6-&5+ 7 %1")/ AB)6;-"!) D//"6)5+ 7 E"+> 3,>)5+ ,*9
%&*-5&2 F;*6-"&* :-,//G )-6., RBI,2011-12,349 ,Jan 13, 2012,, ,!,"2,C2) ,-
http:,,rbi.org.in,scripts,NotiicationUser.aspxId~6938&Mode~0
2
GOVLRNMLN1 Ol INDIA, lINANCIAL SLC1OR LLGISLA1IVL RLlORMS COMMISSION, RLPOR1
Ol 1lL \ORKING GROUP ON BANKING 14 to 19 ,March 1, 2013, ,!,"2,C2) ,- https:,,macroin
ance.nipp.org.in,slrc,documents,wg_banking_report.pd

95
amendments in the same whereer these policies deiate rom soundness and
leads to excessie risk-taking.
2. Rules with regard to spreading the compensation oer longer
horizon accompanied by claw back o payments proisions in the requisite
cases need to be incorporated.
3. The notion of !"# %&' ()*(+) that inds application with respect
to the boards o banks should be reconsidered. . 1he \G is in support o the
suggestion o Umarji Report ,2008,
3
to remoe the restriction on directors on
Boards o banks also being directors o other enterprises. loweer, the same
should be qualiied with the restriction that the Managing Director ,MD, would
not be permitted to occupy a board position in group companies,entities.
4. \ith regard to PSBs, the Board must be entrusted with the
power to nominate members o the appointment committee as well as that o
the compensation committee o the Board.
5. Regardless o the ownership, all banks should be subjected to
uniorm laws and regulations. Uniorm rule o law must be ollowed by banks
irrespectie o ownership:
a. 1he position o chairman and managing director in case o PSBs
should be separated into distinct positions.
b. Boards o PSBs should be goerned by the same stipulations
goerning other that o other types on banks and thereore should play a similar
role.
c. Complete compliance o the listing norms ,Securities and
Lxchange Board o India ,SLBI, stock exchange rules, in case o listed entities
required.
1he BLAA does not propose any measure on these lines, while B3 has
included arious measures that need to bekept in mind such as that o
compensation.

3
M.R. UMARJI, INDIAN BANKS ASSOCIA1ION, DRAl1 RLPOR1 Ol 1lL \ORKING GROUP 1O
RLVIL\ 1lL BANKING RLGULA1ION AC1, 1949 ,May 2008,, %,%"-%.-+ %#
www.iba.org.in,eents,DratBRReportMA\08.doc |Last Accessed on 2 April 2013|.

96
B. lINANCIAL SLC1OR LLGISLA1IVL RLlORMS COMMISSION
1he linancial Sector Legislatie Reorms Commission ,lSLRC,, is a
body established by Ministry o linance in 2011 to reiew and rewrite legal and
institutional architecture o the Indian inancial sector, submitted its
recommendations in March 2013. 1he Report
4
suggested a complete oerhaul
o the existing inancial sector laws and a new omnibus law in the Indian
linancial Code to oersee the entire gamut o inancial sector issues. It
proposes establishment o ollowing bodies:
1. Uniied linancial Authority
2. Resere Bank o India
3. linancial Redress Agency
4. Resolution Corporation
5. linancial Stability and Deelopment Council
6. Public Debt Management Agency
. linancial Sector Appellate 1ribunal ,lSA1,
In addition to the aboe, the Report also discussed the goernance
issues o the regulators themseles, be it the RBI, the SLBI or the CCI. It
proposed complete independence o regulators rom goernment in terms o
separation o powers. 1his was to let the institutions unction with precise
objecties and not mere physical independence which would hae allowed
political intererence.
5
Also, the regulators were proposed to be brought under
scrutiny as well under the lSA1, establishing clear principles o goernance that
the regulator must adhere to. It was aimed at separation o adjudication rom
policy making and implementation.
lurthermore, it was recommended that eery policy that was to be
made should not be made solely by the Goernor o RBI, rather a council
comprising the Goernor and Deputy Goernor o RBI and ie more external
members appointed by the Goernment should be established or the same.

4
GOI, RLPOR1 Ol lINANCIAL SLC1OR LLGISLA1IVL RLlORMS COMMISSION, VOLUML II:
DRAl1 LA\ ,March, 2013,, !"!#$!%$& !( http:,,inmin.nic.in,slrc,slrc_report_ol2.pd
|Accessed on 02-04-2013|.
5
GOI, RLPOR1 Ol lINANCIAL SLC1OR LLGISLA1IVL RLlORMS COMMISSION, VOLUML I:
ANAL\SIS AND RLCOMMLNDA1IONS 15 ,March, 2013, !"!#$!%$& !(
http:,,inmin.nic.in,slrc,slrc_report_ol1.pd |Last Accessed on 2 April 2013|.

9
Also, the goernment, in consultation with the Goernor, would gie the
central bank quantiiable monitor-able objecties, the RBI would then need to
state reasons or ailure o achieement o objecties and the remedial action it
would take. 1he committee has also recommended that the goernment and
not the RBI would be the one to make rules with respect to capital inlows.
1his recommendation is irrespectie o whether the inlows are lDI, lII, orex
loans or NRI deposits. Moreoer, the RBI would be the banking regulator butit
would nothae any control oer the non-bank inance companies ,NBlCs,.
6

1he Report recommendations are note-worthy and reolutionary as it
proposes to subsume, repeal and basically incorporate eery existing law that
deals with the inancial sector. It is a step towards bringing uniormity,
consistency in law and eradicating conusion. As pointed out earlier and
substantiated urther by lSLRC, RBI at times is underequipped and inadequate
to deal with the numerous matters o public importance.
At this juncture, the

proposed linancial Code might be something that the Indian inancial market
demands. Currently, the lSLRC Report is being considered by the Ministry o
linance. As o now, the inance ministry has called or oluntary
implementation by the existing sectoral regulators.
8

V. CONCLUSION
At a conerence organised by lICCI-IBA, Dr. D. Subbarao in his
inaugural address obsered that:
Banks are different from other cororate. iv ivortavt re.ect. ava tbat va/e.
cororate gorervavce of bav/. vot ovt, aifferevt bvt at.o vore criticat. av/. tvbricate tbe
rbeet. of tbe reat ecovov,, are tbe covavit. of vovetar, otic, trav.vi..iov ava cov.titvte tbe
economys payment andsettlement system.

RBI had initially in Dec, 2012 extended the date or implementation o
Basel III and the global capital norms or banks, by three months to 1 April,

6
Subir Gokarn, RC Reort: !itt fivavciat .ector reatt, bevefit frov it., CNBC-1V18 ,Mar 31,
2013,, araitabte at http:,,www.moneycontrol.com,news,economy,slrc-report-will-inancial-
sector-really-beneitit_844503.html
Latha Venkatesh, RC Reort: R. avtborit, iv qve.tiov, CNBC-1V18 ,Mar 28, 2013,, araitabte
at http:,,www.moneycontrol.com,news,economy,slrc-report-rbis
authorityquestion_844205.html
8
P1I, ^ovtegi.tatire .vgge.tiov. of RC cav be ivtevevtea, CNBC-1V18 ,Jan 11, 2014,, araitabte at
http:,,www.moneycontrol.com,news,market-news,non-legislatie-suggestionsslrc-can-be-
implemented_1023058.htmlutm_source~re_article
9
vra note 0.

98
2013.
80
But in March 2013, RBI had again postponed the implementation o
Basel-III regulations or the currency deriaties segment to next January,
2014.
81
1hese postponements had a ery signiicant impact since the delayed
implementation o the capital adequacy norms consequently delayed the
implementation o the goernance aspect o it. It must also be noted that,
phased implementation has neer proed to be successul with Indian
regulators.
Although the BLAA proposes arious measures that can proe handy as
ar as corporate goernance is concerned, it has not addressed arious crucial
issues. RBI has been gien enhanced powers to superise hundreds o banks,
without proper !"#$% "'()*+#, in place. 1he author thereore suggests crucial
amendments to help retain the soundness o Indian inancial system. A
Corporate Goernance Code in the lines o Clause 49
82
o Listing Agreement be
implemented by RBI making the compliance mandatory or the banking sector,
ailing which seere penalties should be imposed.
1he proposed B3 guidelines seek to improe the ability o banks to
withstand periods o economic and inancial stress by prescribing more
stringent capital and liquidity requirements or them.
83
Pillars 2 and 3 play a
crucial role as ar as corporate goernance is concerned. loweer, there are
scholars who obsere that B3 is not as crisis-repellent as one may be inclined to
think. It suers rom arious laws. Bank regulators o most countries usually
preer to adopt banking standards inormally and behind the scenes.
84
Also, the
B3 capital requirements proide regulators with standard means o promoting

80
P1I, -./ 012(+#% .*%(3 /// /!'3(!(+2*2,"+ 4,!(, LieMint & 1he \all Street Journal ,Dec 30,
2012, *5*,3*63( *2 http:,,www.liemint.com,Industry,hzIzNq\qPjQ4GoS2uZsZO,RBI-
extends-Basel-III-implementation-time-by-3-months.html
81
P1I, -./ 7(8()% .*%(39/// :")!% 8") ;")(1 7(),5*2,5(%, Business Standard ,March 29, 2013,, *5*,3*63(
*2 http:,,www.business-standard.com,article,inance,rbi-deers-basel-iii-norms-or-orex-
deriaties-113032900020_1.html
82
The term Clause 49 refers to clause number 49 of the Listing Agreement between a company
and the stock exchanges on which it is listed ,the Listing Agreement is identical or all Indian
stock exchanges, including the NSL and BSL,. 1his clause is an addition to the Listing
Agreement and was inserted in 2000, consequent to the recommendations o the K Birla
Committee on Corporate Goernance constituted by the Securities Lxchange Board o India
,SLBI, in 1999.
83
<)"'"%(# .*%(3 /// =$,#(3,+(%> ? @)(#,2 <"%,2,5( 8") /+#,*+ .*+A%, ICRA, 1 ,Sept, 2010,, *5*,3*63( *2
http:,,www.icra.in,liles,ticker,2010-September-Basel-III.pd |Last Accessed on 2 April
2013|.
84
1akayuki Usui, @")'")*2( ="5()+*+B( "8 .*+A,+C D)C*+,E*2,"+% ,+ 2F( G+,2(# H2*2(% *+# ,+ I*'*+, 28
DLL. J. CORP. L. 563, 50 ,2003,.

99
sound corporate goernance and improing their bank superision unction
without a jurisdictional study in order to synchronise the member countries'
superisory procedures. 1he BCBS promotes conergence towards common
approaches and standards without the proper procedural guidelines and as a
result, the intended eect o B3 may get diluted.
85

It has also been argued that as much as external regulation plays a ital
role in banking superision, greater reliance must be placed on internal risk
management.
86
Although a bank may not be allowed to incorporate securitised
products into its incremental risk charge, the capital charges o the banking
book will apply or securitisation positions under the B3 ramework. \ith this
arrangement, the rules require banks to perorm their own due diligence on
securitisation positions instead o relying solely on the assessments o regulatory
and rating agencies.
8

85
M.Schler, !"# %" &'()*(+ ,-./01*2"02 %/'3 #*45 6-0"./7#*8/ ,924/:*; <*2)=> ,Centre or Luropean
Lconomic Research, Discussion Paper No. 95, Oct, 2003,.
86
Richard Lartey, ?2 &'2/3 ??? ?(8*2./(2'@3/ A"0 6(2-0*(+ B0-8/(4 <*2) C'('+/:/(4 *( &'()*(+=> ,May 29,
2012, '1'*3'@3/ '4 http:,,ssrn.com,abstract~208139
8
N. Sawyer, &'2/3 D"::*44// *:.0"1/2 C'0)/4 <*2) E0':/#"0)> Risk Magazine, ,leb, 2009, '1'*3'@3/ '4
http:,,www.risk.net,risk-magazine,news,149692,basel-committee-improes-market-risk-
ramework


101
TOWARDS THE ELECTRONIC POLICE STATE:
ADDRESSING THE CONCERNS
Shamba Dey
*

The electronic police state is one that engages in mass surveillance of telephone traffic,
email, web and Internet searches, radio, and other forms of electronic communication, including
video surveillance. The Government of India conceived the idea of the electronic police state in
2009 when it proposed to establish the Central Monitoring System, which is similar to the
surveillance program of the National Security Agency in the United States of America. The
formation of the Central Monitoring System has however actuated a public debate on the
violation of individual privacy coupled with the lack of transparency in surveillance operations
which greatly accentuates the possibility of abuse of Executive authority. This article thus
proceeds in four parts. Part I reviews mass surveillance systems as a necessary tool for fulfilling
the social, economic and political aspirations of individuals. Part II examines the concept of
privacy in the light of changing technologies and evolving societal needs, arguing that privacy is
a broad, subjective, contextual and self-referential concept, and that there may be no legitimate
basis for protection of privacy against mass surveillance. This Part further argues that mass
surveillance systems have the potential to strengthen, rather than weaken privacy. Part III
analyses the contentious argument that lack of transparency in the operations of the Central
Monitoring System and its consequential effects violate civil liberties, fairness, and justice.
Finally, Part IV discusses the possibility of overreach by the Executive and the checks and
balances necessary to mitigate such risks.
I. BACKGROUND: THE PURPOSE AND NECESSITY
OF SURVEILLANCE
Surveillance is undertaken with twin purpose in mind- one being welfare
and the other being security. This is true of both private organisations and the
government. Private organisations use surveillance and data collection to
protect their physical resources and information systems from external threats
and to market their goods and services.
1
The government uses surveillance, data

*
I
st
Year, LL.B., Government Law College, Mumbai.
1
See Fred H.Cate, Government Data Mining: The Need for a Legal Framework, 43 HARV. C.R.-C.L.
L. REV. 43, 440 - 44 (2008) at 435 ("advances in digital technology have greatly expanded the
volume of personal data created as individuals engage in everyday activities").

102
collection, and data mining to identify problems, anticipate and counter
potential threats, govern populace and deliver valuable social welfare services.
2

Traditionally, government agencies across the world have collected and
analysed statistical data. Instances of such data collection include but are not
limited to assessment of land revenue, assessment of income of individuals and
corporations for tax purposes, preparation of census reports, birth and death
certificates, preparation of ration cards, poverty lists and electoral lists. The data
so collected drives the planning and execution of the governments agenda on
welfare. In fact, providing most of the basic social services such as welfare
benefits to an ever-increasing population and protecting the rights of people
(such as rights against employment discrimination) are difficult without
extensive data harvesting tools because without these tools, beneficiaries would
not otherwise be correctly identified. As David Lyon explains, The surveillance
systems of advanced bureaucratic nation-states are not so much the repressive
machines that pessimists imply, but the outcome of aspirations and strivings for
citizenship. If government departments are to treat people equally, then those
people must be individually identified. To exercise the right to vote, one's name
must appear on the electoral roll; to claim welfare benefits, personal details
must be documented. Thus, the individuation that treats people in their own
right, rather than merely as members of families or communities, means
freedom from specific constraints but also greater opportunities for surveillance
and control on the part of a centralised state.
3
Surveillance,
4
therefore, is a way
of governing.
With newer and faster developments in information technology, a
greater level of surveillance, one that extends to the monitoring, collection and
analysis of information that may not be voluntarily made accessible by the
citizen becomes unavoidable. As technologies that let users discover and
analyse the current world trends become more powerful, governments seek to

2
Id.
3
DAVID LYON, THE ELECTRONIC EYE: THE RISE OF SURVEILLANCE SOCIETY 32-33 (1994)
(Quoting NICHOLAS ABERCROMBIE, SOVEREIGN INDIVIDUALS OF CAPITALISM (1994)).
4
As per the New Penguin Compact English Dictionary (2001) Penguin Books, Surveillance
means close watch kept over someone e.g. by a detective. In the context of the paragraph,
the term is not to be understood in its literal sense, but in the sense of general data collection
activity legitimately undertaken by any government.

103
use them for protection and welfare purposes.
5
For example, in Europe and
United Kingdom, governments have installed tele-care services that use remote
monitoring technology to enable vulnerable people to live independently in
their own homes.
6
The technology employs electronic sensors to transmit
information about the user's location and patterns of behavior in the user's
home to an external hub, where it can trigger an intervention in case of an
emergency. Since 2005, China has begun to expand its surveillance through its
Field Epidemiology Training Program; Brazil and Argentina have chosen to use
World Bank loans to develop surveillance capacity in public healthcare, while
the U.S. Agency for International Development has redesigned its surveillance
strategy to focus on the use of data to improve public health interventions.
7

Additionally with the reduced cost of technologies,
8
there is opportunity for the
government to use these technologies to collect, collate and analyse more
information.
Increased focus on surveillance also becomes necessary in light of the
wide accessibility of information and telecommunication technologies. Terrorist
groups and other such organisations use digital and mobile technologies to
communicate with each other
9
and to cover their identities. Since the September
11 attacks,
10
terrorist strikes have become a major cause of concern for national
defense, foreign and home affairs for most countries, including India. Unlike in
the nineteenth and twentieth century, an adversary today need not necessarily
be another nation; terrorist organisations, hackers and criminals have emerged
as newer forms of threat with a wide range of unprecedented challenges.

5
James Dempsey and Lara Flint, Commercial Data and National Security, 72 GEO. WASH. L. REV.
1459, 1464-68 (2004) at 1468-69.
6
See Department of Health, Older People and Disability Division, Building Telecare in England
(July 19, 2005; See also, Sorell T., Draper H, Telecare, surveillance, and the welfare state, AM J
BIOETH (2012) 12(9), 36-44.
7
See JAMISON DT, BREMAN JG, MEASHAM AR, et al, DISEASE CONTROL PRIORITIES IN
DEVELOPING COUNTRIES., (Washington (DC): World Bank, 2
nd
ed. 2006).
8
Patricia Bellia, The Memory Gap in Surveillance Law, 75 U. CHI. L. REV. 137, 142-53 (2008).
9
G Weimann, Terror on the Internet: The New Arena, the New Challenges, (Washington, D.C.,
United States Institute of Peace Press, 2006) (describing Al Qaeda's use of the Internet);
Audrey Kurth Cronin, Behind the Curve: Globalization and International Terrorism, 27 INTL.
SECURITY 30, 46-48 (2002-03); PHILIP BOBBITT, TERROR AND CONSENT: THE WARS FOR
THE TWENTY FIRST CENTURY, 55-57 (2008).
10
The September 11 attacks were a series of terrorist attacks launched upon the United States
on September 11, 2001, see United States v. Mohammed, et al. D-126 Ruling.


104
Terrorists can move easily and change cell phones and e-mail addresses at will,
hackers can gain access to government computer networks, and criminals can
take advantage of weaknesses in digital networks to not only commit
conventional crimes such as embezzlement of funds but also perpetrate a whole
new range of offences like phishing.
11
The digital technologies that inadvertently
aid the commission of such offences necessitate the government to invest in
counter-surveillance
12
to identify and prevent threats posed by the use of such
technologies by criminals. This modern-day form of terror forces intelligence
operatives to act swiftly and for this purpose, use new and expeditious ways to
gather information in order to preempt such crimes.
13
This is significantly
different from the older models of law enforcement where the focus has been
on ex post apprehension and prosecution of wrongdoers.
14
Today, modern
surveillance makes it possible to prevent wrongdoings ex ante.
Furthermore, unlike ordinary criminal investigations, national security
investigations and counter-terrorist surveillance often have remarkable breadth
spanning long periods of time, multiple geographic regions, and numerous
individuals, whose identities are often unknown to the intelligence community
at the outset and hence the need for collection and record keeping of historical
data on various aspects of individuals is inevitable. Data interceptions thus
become vital for gathering intelligence about terrorist organisations and
unlawful activities. The very nature of these crimes makes a strong argument in
favour of giving the government a certain level of latitude in the gathering of
intelligence. The government cannot in fact identify preemptively who a

11
Phishing is the act of attempting to acquire information such as usernames, passwords, and
credit card details (and sometimes, indirectly, money) by masquerading as a trustworthy entity
in an electronic communication. see Handbook of Information and Communication Security by Peter
Stavroulakis, Mark Stamp, at 433.
12
Supra note 4. Here and henceforth (unless specifically mentioned to the contrary) the term
surveillance is to be understood in its literal sense.
13
Judge Richard Allen Posner, Our Domestic Intelligence Crisis, The Washington Post, December
21, 2005: ..The information that enables the detection of an impending attack may be
scattered around the world in tiny bits. A much wider, finer-meshed net must be cast than
when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone
conversations or banking records of U.S. citizens, some innocent, some not so innocent. The
government is entitled to those data, but just for the limited purpose of protecting national
security.
14
Scott Charney, The Internet, Law Enforcement, and Security, PRACTICING L. INST., FIFTH
ANNUAL LAW INSTITUTE at 944 (discussing the traditional model of law enforcement before
the advent of new information technologies).

105
terrorist is, until after his or other peoples privacy has been violated. Innocent
people, such as unwitting neighbors of terrorists, may, have valuable counter-
terrorist information, which can be tapped and used for the protection of
citizens right to a safe and secure environment.
The existing system is a reactive system, relatively centralised, publicly
managed, and rooted in human discretion.
15
Manual patrolling and collection of
evidence takes a very long time, which can often lead to costly delays for both
the victim and the government. However, through an automated surveillance
system, these functions will be performed on secured electronic links and there
will be minimum manual intervention. As Kozlovski explains, By predicting
when, how, and by whom a crime will be committed, it aims to enable efficient
intervention. Automated tools constantly monitor the environment to match
users' risk profiles against dynamically identified patterns of criminal behaviour.
Patterns of previous computer crimes are coded as crime signatures which
monitor for anomalies or deviations from normal behaviour. The patterns of
normal behaviour are coded and an algorithm watches for a certain level of
deviation from them.
16
Hence, interception through surveillance is
instantaneous and more reliable than fallible human officers. This leaves very
little scope for violating the law;
17
even if a violation occurs, the surveillance
systems can help in the investigations by quickly providing more accurate
evidence. It is perhaps against this backdrop that the government has taken the
initiative to build the Central Monitoring System (CMS).
II. THE ILLUSION OF PRIVACY
The project to build a national mass surveillance and data mining system
in India began in 2009.
18
The Central Monitoring System, which was reportedly
deployed in 2013,
19
uses advanced computer technologies to collect large
amounts of personal data of all individuals. The technology is used to
monitor and record phone calls, to read emails and messages, to scan Internet-
based activities of individuals, to track the location of individuals in real time

15
Nimrod Kozlovski, Designing Accountable Online Policing, 107
16
Id. at p.110.
17
MIREILLE HILDEBRANDT, JEANNE GAAKEER, HUMAN LAW AND COMPUTER LAW:
COMPARATIVE PERSPECTIVES, (Springer 2013) p.70.
18
Centralised System to Monitor Communications, Press Information Bureau, 26 November, 2009.
19
See Deepa Kurup, In the dark about Indias Prism, The Hindu, 16 June, 2013.

106
and to analyse behavioural patterns of individuals based on the collected
information. However, the formation of the Central Monitoring System has
raised serious concerns of violation of civil liberties and individuals right to
privacy. The debate over surveillance involves a clash between the relevant
public interests such as national security or the detection and prevention of
crime on one hand, and the individuals interest in preserving his or her privacy
on the other. Much of this clash however results from a mistaken
understanding of the term violation of privacy, and it is especially so in the
context of the changing information age. In this Part, the author examines the
spiraling complexity in distinguishing between private and public data and
whether privacy rights are at all violated when the government collects data
about individuals.
Privacy in general means the right of an individual to live one's life in
seclusion without being subjected to unwarranted and undesired publicity,
20
to
decide for oneself the extent and degree of sharing ones thoughts and
feelings.
21
Privacy could also be interpreted as a property right, giving
individuals ownership over their personal data.
22
This latter view, in fact,
originated in ancient Athenian society
23
and thereafter found place in English
and American jurisprudence. Although it is an unconventional comparison to
make, there are some similarities between property and privacy rights. For
example, just as authors or musicians have the right to prevent duplication and
propagation of their works, so too an individual can be said to have the right to
limit access to his personal data. In Pope v. Curl,
24
Curl, a bookseller, obtained
and published, without consent of the authors, personal letters written to and
by well known literary figures, including Alexander Pope and Jonathan Swift.
Lord Chancellor upheld the privacy of Popes letters on the grounds that the
writer of a letter has a property right in his words. Similarly, in Yovatt v.
Winyard,
25
the Court extended property rights protections to cover personal

20
Kerby v. Hal Roach Studies, 1942 53 Cali. App. 207, 127.
21
ALAN WESTIN, PRIVACY AND FREEDOM, (New York: Atheneum 1967), 373.
22
W.A.Parent, Privacy, Morality, and the Law, PHILOSOPHY AND PUBLIC AFFAIRS, Vol. 12, no. 4
(Princeton, NJ.: Princeton University Press, 1983), pp. 269-88; See generally, Lawrence Lessig,
Code : Version 2.0 (2006).
23
BARRINGTON MOORE, JR., PRIVACY: STUDIES IN SOCIAL AND CULTURAL
HISTORY (Armonk, N.Y: M. E. Sharpe, 1984), pp. 82, 108, and 124.
24
(1741) 2 Atk. 342.
25
(1820) 37 Eng. Rep. 425,426 (Ch.).

107
secrets. Thus, what we now call unfair competition and plagiarism and
privacy, were all wrapped together under the principle of property.
26

The author however contends that these concepts of privacy are very
rigid and create problems. Every individual is continually engaged in a personal
adjustment process in which he balances his want for privacy with his desire to
reveal his personal matters to others.
27
Professor Gary Marx comments on how
individuals differ in the methods of communication of personal matters and in
their general approach to concealment and revelation. The societal notions of
gender are also illustrated. Society, on one hand; believes that women are more
public in the sense of sharing their thoughts and feelings, and on the other
hand due to the greater modesty shown by women, they may be known to be
more private. Regional variation may also exist. Thus persons in California, in
particular, are often stereotyped as being more forthcoming in expressing the
personal. That also seems true of Americans in general relative to Europeans.
28

It is due to the social and environmental requirements of the society
which one has to adjust to, that an individual, willingly and unwillingly, leaves
traces of himself wherever he goes and hence reveals private information to
others. An individual has to work with other individuals, live together and make
friends. Such other individuals become aware of his habits and behaviours. The
individual is fully aware of the private information he shares yet he does so
because of reasons that are inherently social and perhaps, psychological too.
29

Exchange of information can also happen without the individuals awareness.
Strangers in public places can collect information about an individual. Likewise,
talking on the cell-phone in buses, cars, trains and other public places, reveals

26
MORRIS ERNST AND ALAN SCHWARTZ, PRIVACY: THE RIGHT TO BE LET ALONE (New
York: Macmillan, 1962), pp. 6-12.
27
Supra note 19.
28
Gary Marx, Murky Conceptual Waters: the Public and the Private, ETHICS AND INFORMATION
TECHNOLOGY, 2001. Vol. 3, no. 3, at 157-169.
29
Michael McFarland, SJ, Why We Care about Privacy, Markkula Center for Applied Ethics, Santa
Clara University: These associations are not merely preferences or matters of convenience.
Therefore social obligations, that is, all that is required to maintain the complex web of
relationships in which each person lives, are fundamental human obligations. These
obligations include the sharing of personal information, which is a necessary part of any
meaningful relationship, whether it is personal, community, political or bureaucratic.
Friendship necessarily requires self-revelation. Belonging to a voluntary association entails
sharing something of one's history, one's ideas
and aspirations, and one's current circumstances. available at http://www.scu.edu/ethics/pr
acticing/focusareas/technology/internet/privacy/why-care-about-privacy.html

108
information about a persons private and confidential matters in part or in
whole, to strangers. However, even when aware, an individual has to allow such
collection of personal data out of necessity and convenience. For example,
CCTVs in hospitals, hotels, shopping malls, traffic cameras, and parking-lot
cameras capture a bulk of information on a regular basis. Banks know
information about an individuals clients and amounts transferred. Telephone
and mobile operators know the numbers dialed, the duration of calls, messages
sent, and the whereabouts of an individual.
30
Mobile applications like GPS
collect information about user locations in very large quantities. Personal data
therefore assumes a fluid nature- it flows easily and eventually falls out of the
control of the individual.
The same is true of the Internet, where such fluidity of data is greater.
Search engines reveal bulk of information about individuals in the form of
comments made, statements written and even videos. They also collect
information about past searches made by individuals, which are then used to
drive audience-specific advertisements. Emails, sent and received, drafted but
not sent, spam mails, mailing lists are all stored by the service provider. This
could be considered by some to be an intrusion upon ones privacy, the risk
being assumed knowingly and voluntarily by the individual.
31
The acceptance of
such risk comes from explicitly consenting to the terms of use, or implicitly by
enabling cookies in their web browser.
Today most individuals see social networking sites as an important
medium of communication. Eric Schmidt, the CEO of Google, has rightly
pointed out in an interview with PBS, that the next generation is infinitely
more social online and less private, as evidenced by their Facebook
pictures.
32
Facebook and Twitter store information about an individuals
personality, habits, and opinions.
33
Status messages, posts, pictures and tweets,
even if they have been deleted from the view of the public are nevertheless
known to the websites operators.
34
Facebook itself tells other people what an

30
"Apple denies tracking iPhone users, but promises changes", Computerworld, April 27, 2011.
31
See e.g., Smith v. Maryland, 442 U.S. 735, 745 (1979); United States v. Miller, 425 U.S. 435,
443 (1976).
32
Polly Sprenger, Sun on Privacy: 'Get Over It', Wired, January 26, 1999.
33
Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, New York Times, Sept. 9,
2007.
34
Facebook came under the scanner for the User Content Posted on the Site clause in its
Terms of Use which read: You may remove your User Content from the Site at any time.


109
individual is saying, where he is visiting and with whom.
35
Data is transferred to
Facebook's servers in the USA but users are not given sufficient information
about this and the terminology in Facebook's conditions of use and privacy
statements may not meet the legal requirements relevant for compliance of legal
notice, privacy consent, and general terms of use.
36

It must be stated here that the aim of these examples is not to draw a
comparison between the activities of private organisations and the Central
Monitoring System or to suggest that the government can collect data just
because private organisations are also collecting data. The aim is to underline
the simple fact that new technologies have increasingly blurred the distinction
between public and private. Not only have individuals, on their own, given up
much of their privacy
37
to the digital space and physical space, but it has also
become practically impossible for individuals to control what other people say,
know or think about them. What used to be private information in the pre-
information age is now increasingly becoming public and rather than
approaching the public and private as one-dimensional, rigidly dichotomous

If you choose to remove your User Content, the license granted above will automatically
expire, however you acknowledge that the Company may retain archived copies of your User
Content.

The license granted refers to the license that Facebook has to your name, likeness,
and image to use in promotions and advertising. Facebook changed its terms of use on Feb
4, 2009. The new terms of use deleted the phrase that license would automatically expire if a
user chose to remove content. By omitting this line, Facebook license extends to adopt users'
content perpetually and irrevocably years after the content has been deleted, Facebook Privacy
Change Sparks Federal Complaint, PC World. Retrieved on March 5, 2009.
35
The Facebook privacy policy once stated, "We may use information about you that we collect
from other sources, including but not limited to newspapers and Internet sources such as
blogs, instant messaging services and other users of Facebook, to supplement your profile."
Facebook Privacy Policy, Retrieved on December 8, 2010.
36
See compliant and settlement order of United States Federal Trade Commission (FTC) with
Facebook available at
http://www.ftc.gov/sites/default/files/documents/cases/2011/11/111129facebookcmpt.pd
f and
http://www.ftc.gov/news-events/press-releases/2011/11/facebook-settles-ftc-charges-it-
deceived-consumers-failing-keep); See Lane v. Facebook, 10-16380, U.S. Court of Appeals,
Ninth Circuit (San Francisco).

37
DANIEL SOLOVE, UNDERSTANDING PRIVACY, (Harvard University Press, 2008): Although
polls indicate that people care deeply about privacy, people routinely give out their personal
information and willingly reveal intimate details about their lives on the Internet. Law
professor Eric Goldman points out that peoples stated privacy concerns diverge from what
[they] do. Canadian scholar Calvin Gotlieb declares that most people, when other interests
are at stake, do not care enough about privacy to value it.

110
and absolute fixed concepts, they are best conceptualised as multi-dimensional
(with dimensions sometimes overlapping or blurred and at other times cross
cutting or oppositional), continuous and relative, or contextual, whose meaning
lies in how they are interpreted and framed.
38
However where huge volumes of
private information is transferred from the secluded domain to the public
domain, an important question that lingers is whether the individual can still, in
the name of his right to privacy, control how the personal information (which is
now public) would be used by others.
In this regard, the Supreme Court of India has laid down an exception
to the right to control of information stating where a matter becomes a matter
of public record, the right to privacy no longer exists, and it becomes a
legitimate subject for comment.
39
This means, there can be no expectation of
privacy once the private information becomes public, which simplistically put,
implies that there is a loss of ownership over personal data. The US Supreme
Court also takes a similar view: What a person knowingly exposes to the
public, even in his own home or office, is not a subject of Fourth Amendment
protection.
40
This means that when the police are using a beeper device to
track a suspects car on public streets, it is capturing public information because
the suspect cannot legitimately expect to be private in a public place.
41
Similarly,
when a person uses a telephone, he needs to realise that he must convey
phone numbers to the telephone company, since it is through the telephone-
companys switching equipment that his calls are completed. A subscriber
knows that the telephone-company has facilities for making permanent records
of the numbers he dials, for he sees a list of his calls on the monthly bills and
the company does record information for legitimate business purposes. As long
as the telephone company is capable of recording and disclosing the numbers
its customers dialed through its electronic system, the customer cannot assume
that the companys employees would not do so. It is too much to believe that a
subscriber, under these circumstances, should harbour any general expectation
of privacy.
42
Similarly, it can be argued that there is no legitimate expectation of

38
Supra note 26; See Govind v State of Madhya Pradesh, 1975 2 SCC 148 (SC held that privacy
rights are not absolute).
39
R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632.
40
Katz v United States, 389 U.S. 347, 351 (1967).
41
United States v. Knotts, 460 U.S. 276, 281(1983).
42
Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v. New York Tel. Co., 434
U.S., at 174 -175.

111
privacy of data relating to an individuals bank accounts, cheques and
transactions available with a bank, because the individual does not have
ownership, possession, or control over the data. Instead this data is now part of
the stored business records of the bank.
43
If the government issues a notice to
the bank, it simply wants to inspect data that is in the control of the bank. The
same argument may be extended to an individual's email data held by Google
Mail, in stored form in its servers.
44
While the nature of the relationship of an
individual with his bank or telephone company may be different from his
relationship with Google, the one thing that is common in all these technologies
is that the individual takes on the risk associated with the transfer of data
beyond his private domain by either putting himself into a stream of activity
that he doesnt control
45
or by giving third party access.
A case where the actual conversations in a phone call or contents of an
email are wire tapped may require further analysis. Here, the subject matter is
not public but a matter that an individual seeks to preserve as private. There is
no assumption of risk or voluntary release of control. However, in the landmark
case of Katz
46
, Justice Hugo Black of the US Supreme Court declined to accept
that phone conversations are constitutionally protected. On the contrary, he
opined that the natural uninvited risk of eavesdropping cannot be completely
eliminated and there can be no privacy protection against such eavesdropping.
47

Likewise, many in the legal community are divided on the question of whether
conversations and things intimately private are at all subject to privacy
protections. There are no bright line rules. Many US Courts have found no
expectation of privacy in the content of emails because of Internet Service
Provider (ISP) access.
48
Email always runs the risk that an employee or other

43
United States v. Miller, 425 U.S. 435, 446 (1976).

44
Lessig, supra note 20, p. 205: unlike a telephone call, this content is saved in a searchable
form. Companies now invest millions in technologies that scan the conversations of
employees that before were effectively private. Both in real time and in retrospect, the
content of conversations can become known; See also, JEFFREY ROSEN, THE NAKED
CROWD: RECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS AGE (New York: Random
House, 2004), 3453.
45
Lessig, supra note 20, at 209.
46
Supra note 38.
47
See Dissenting Opinion of Justice Hugo Black.
48
McLaren v. Microsoft Corp., No. 05-97-00824-CV, 1999 WL 339015, at *4 (Tex. App. May
28, 1999) (asserting


112
person with direct access to the network service will access the email, despite
any company promises to the contrary.
49
Some other courts have indicated in
dicta that, because of third party exposure, email content is of lesser protected
status than mail or telephone content and that the privacy of email depends, not
on social expectation or whether the content is at issue, but on the fact of third
party access.
50
In India, wiretapping of phone conversations between two
individuals would not amount to violation of privacy if it can be satisfactorily
shown that the recorded information had relationship to public interest.
51

Considering the prevailing jurisprudence on personal liberty under Article 21 of
the Constitution
52
, one would therefore have to resolve the issue by carefully
measuring the interests at stake- privacy rights and national interest; balancing
the two would mean that the degree of eavesdropping permitted should be

defendants stored emails differed from tangible stored items because such emails were first
transmitted over the network and were at some point accessible by a third party).
49
United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996). at 418.
50
United States v. Charbonneau, 979 F. Supp. 1177, 1184 (1997); Leventhal v. Knapek, 266
F.3d 64, 74 (2d Cir. 2001); Steve Jackson Games, Inc. v. United States Secret Service, 36
F.3d 457, 460-64 (5th Cir. 1994) (held that stored e-mails not intercepted
contemporaneously with transmission are not protected under federal privacy laws).
51
8(1)(j) of The Right to Information Act, (2005): Information which relates to personal
information the disclosure of which has no relationship to any public activity or interest, or
which would cause unwarranted invasion of the privacy of the individual unless the Central
Public Information Officer or the State Public Information Officer or the appellate authority,
as the case may be, is satisfied that the larger public interest justifies the disclosure of such
information: Provided that the information which cannot be denied to the Parliament or a
State Legislature shall not be denied to any person.
52
The Supreme Court has upheld the constitutional validity of interceptions, as provided in
5(2) of Indian Telegraph Act, 1885 and monitoring through its order dated December 18,
1996 and laid down guidelines limiting its scope to five instances: national sovereignty and
integrity, state security, friendly relations with foreign states, public order or for preventing
incitement to the commission of an offence.; See PUCL v. Union of India, AIR 1997 SC
568, wherein the Court rejected the notion of prior judicial scrutiny as a procedural
safeguard and accepted the contention that administrative safeguards would be sufficient.
More recently, in consistency with Art 19(2) of the Constitution, 69 of the Information
Technology Act, 2008 has expanded the power of the Government to decrypt information
and conduct interception which may be exercised when it is necessary or expedient to do so
in the interest of the sovereignty or integrity of India, the security of the State, friendly
relations with foreign States or public order or for preventing incitement to the commission
of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency
of the Government to intercept any information transmitted through any computer resource.

113
directly proportional to its efficacy and inversely proportional to its
intrusiveness.
53

What emerges from the above discourse is that the data collection
activity of the Central Monitoring System does not pose a privacy violation
problem. Further, there seems to be no reason why a conflict between the
public interest and individual privacy needs to exist, when one looks at privacy
as a collective right. Discussions about privacy often take form around a
particular technology or social measure that violates privacy and hence it is
argued that such measure be rejected. However, it is wrong to treat privacy as
an exclusive personal privilege, and not in the light of its general importance as
a public good.
54
For example, collecting names of sex offenders and keeping
them in the public domain may be seen by some as a violation of privacy of the
accused but such data serves to protect a community from future crime.
Similarly, permitting only consensual rather than mandatory testing of infants
for HIV, with no disclosure of results, is a danger to common good- the
suffering of considerable numbers of children that could be reduced with early
detection. In this case, the right to life outweighs any risk of discrimination
against mothers. Similarly, societies do not become totalitarian by use of ID
cards; they abuse ID cards because they are totalitarian. Democracy has the
adaptability to use ID cards and remain democratic
55
because such
technologies increase fairness and accuracy,
56
which is absolutely essential if the
government were to detect tax evaders, welfare cheats, mafia, illegal immigrants
and thieves who steal the very identities of citizens. Reliable identification can
increase, not diminish, citizen's privacy and autonomy;
57
if a system like the
Central Monitoring System that facilitates the collection of large volumes of
data exists, it would assist the government's agencies and enforcement officers
in identification, and thereby strengthen public welfare.

53
ALEXANDER DIAZ MORGAN, A BROADENED VIEW OF PRIVACY AS A CHECK AGAINST
GOVERNMENT ACCESS TO EMAIL IN THE UNITED STATES AND UNITED KINGDOM,
INTERNATIONAL LAW AND POLITICS, Volume 40:803, at 843.
54
P REGAN, LEGISLATING PRIVACY: TECHNOLOGY, SOCIAL VALUES, AND PUBLIC POLICY.
Chapel Hill, U.S.: The University of North Carolina Press 1995. ("If we did recognize the
collective or public-good value of privacy, as well as the common and public value of privacy,
those advocating privacy protections would have a stronger basis upon which to argue for its
protection.).
55
AMITAI ETZIONI, THE LIMITS OF PRIVACY, New York 1999, p.184.
56
Eugene Volokh, The Benefits of Surveillance, THE RESPONSIVE COMMUNITY, Fall 2002, at 9.
57
Supra note 53.

114
III. LACK OF TRANSPARENCY AND FEAR OF
MISUSE
In the electronic police state, the Central Monitoring System would
monitor the individual after initial collection of data by building a profile of the
individual. The concern here is that the data collected might be misconstrued or
misused against the individual by constructing a wrong profile about him. This
is because of the lack of transparency- individuals are apprehensive about the
rules governing the accessibility and interpretation of the data and the reasons
and implications of such surveillance. Consider an example. A man staring
fixedly at an individual bothers that individual not because the man staring
might discover what the individual is doing privately, but because the man has
violated norms of socially acceptable behavior and may possibly commit acts of
nuisance against the individual in future. This, in many ways, may also be true
of peoples perception about government surveillance. Individuals do speak of
privacy, but what frightens them is not the abstract notion that the
government might be closely watching them; rather, the possibility that the
information gathered will be misconstrued or abused. People may fear that a
government agent, by threatening to release information, can exert illegitimate
pressure on them. They may be afraid of being falsely incriminated based on a
pattern of circumstantial activities. This brings out an essential difference
between the privacy of the government and the privacy of individuals: the
government has greater power than individuals. When the government's privacy
is violated through unauthorised disclosure of classified documents, the
government can prosecute the leaker, or employ other means to prevent harm.
In contrast, individuals have far less power and fewer ways to protect
themselves. Under these circumstances, individuals would find it harder to do
anything that deviates from accepted social behavior.
58
Most people would be
afraid to stand apart, to be different, even if there is no explicit threat of
retaliation. Hence individuals would feel that it is better to conform because
they would not know what the technology is capable of interpreting.

58
Michael McFarland, SJ, supra note 27; Westin, supra note 19, p.20-32; CARL J. FRIEDRICH
AND ZBIGNIEW K.BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND
AUTOCRACY, (Cambridge, MA: Harvard University Press, 1963), p. 179; Brandeis and
Warren, The Right to Privacy, 4 HARVARD L.REV. 193 (1890) at 196.

115
However, such fears of misinterpretation and misuse appear to the
author to be far too remote for two reasons. First, misinterpretation and misuse
can happen at the hands of any person who stores any form of information,
whether he is a private party or a government agent, and consequent harm can
be inflicted upon an innocent person. While on one hand bona fide information
can be passed on to the police (such as naming a tax evader), on the other hand
any malicious person can also give false information to the police about an
innocent person and initiate a criminal investigation against him or get him
wrongfully detained. In no society, have people been absolutely free from
wrongful and arbitrary interventions of the state authorities or private parties.
The important point to note here is that people can become victims of abuse
even when they have strong control over their personal activities and there is
little government surveillance. On the contrary, government surveillance can
help reduce the misuse of intelligence against innocent citizens, such as
preventing sale of personal data by an Internet company to third parties, bogus
job advertisements or credit card frauds. Similarly, the Central Monitoring
System, being more accurate and consistent, can also limit the risk of
government abuse: the cameras that might video-tape an act of robbery can also
video-tape evidence of police misconduct. Video-tape evidence can decrease the
risk that the wrong person would be arrested. Second, the Central Monitoring
System only aims at detecting the possibility of crime and deviations from law
and order. The task of enforcement, however, is ultimately upon the police,
military, or other departmental authorities, who would have to act within the
due process of law. Thus, even if misinterpretation of data occurs resulting in
violation of any legal right of an innocent person, there is always a remedy
available against the enforcing authority that has made the mistake, whether
willfully or not.
An important practical question that arises here is whether the
individual who feels that his protected interests are violated must bear the
burden of proof. In this regard, legal scholar McCormick writes that: The
proponent of such a disfavored contention should have the burden of
proof.
59
The individual moving to suppress evidence and seeking exclusion of
probative facts should bear some burden in showing the need for such

59
MC.CORMICK ON EVIDENCE 337, at 786 (3rd ed. 1972).

116
exclusion. However, the burden may also shift to the State to justify that there
has been no violation of privacy in the surveillance act complained of.
Surveillance in itself does not prevent individuals from access to the
judiciary. This means that there is no reason why an individual has to be any
overtly careful about what he says on a social networking site or who he
associates with simply out of fear of the Central Monitoring Systems profile
building ability, unless such expression or association is prohibited by a statute.
Ideally, where one is not committing any unlawful act, there is no reason to
believe that he would be subject to incrimination, detention, enquiry, or
labelling by the Central Monitoring System. However, where one has a history
of unlawful acts, his profile may be placed on a caution-list, and where there is
sufficient apprehension, the government may solely for purposes permitted
under law proceed to investigate and take preventive measures. Although
individuals deeply fear the spill-over of data into the hands of others, but as
already discussed in the previous section, the law provides protection only when
there is a legal basis and legitimate expectation of privacy, but not in all cases.
60

If there is no legitimate expectation of privacy to be found in the expressions
and associations of an individual, there may not be much legal ground to claim
his privacy, even though he may fiercely want to preserve it.
61
However at the
same time, law enforcement officers should also satisfy the court of the valid
grounds for monitoring the activities of the plaintiff, retrospectively, failing
which the injured plaintiff can recover damages.
What excuses the lack of transparency in the activities of Central
Monitoring System is the need for secrecy in certain government operations. In
order to function, government agencies sometimes need to operate away from
the public eye. Certain sensitive police and military operations and defense
strategies need to be carried out secretly. Diplomats may need to take different
approaches with different States. The monitoring techniques and algorithms
used by the Central Monitoring System would assist the operations of
government decision-makers. Reasonable restrictions need to be placed on
access to data, especially when it concerns national security. While transparency

60
See Malak Singh v State of Punjab and Haryana AIR 1981 SC 760.
61
Govind v State of Madhya Pradesh, 1975 2 SCC 148 (The Supreme Court held that
constitution makers did not intend to protect mere personal sensitiveness).


117
of operations may be important, it cannot be taken to mean that the
government has to reveal how the algorithms make predictions, who analyses
the data, how long the data is stored etc., because these revelations can be easily
exploited by perpetrators to their advantage and frustrate the whole purpose of
surveillance.
IV. SAFEGUARDING AGAINST THE EXECUTIVE
Transparency requires self-restrained use of power
62
and more so
because invisible power can lead to abuse. Fear of such abuse led the Roman
satirist Juvenal to question: quis custodiet ipso custodes, or who watches the
watchers?
63
Without considerable oversight, the veil drawn over access to
information may become an impenetrable wall, with the Judiciary or the
Legislature loathing to second-guess those responsible for ensuring national
security
64
, and none may inspect and check the use or abuse of such power.
65

Thus, what should be a legitimate reason for concern is not the fact that the
activities of CMS seem to be against privacy rights or are not entirely
transparent but the possibility that with more information in the control of the
Executive branch, the balance of power may tilt in its favor.
The Executive branch serves as the publics agent for purposes of
implementing and enforcing the regulatory mandates of the Parliament and
there are agency costs in this arrangement when administrators use their
position to gain advantage over others. As Justice Jackson explained in Irvine v.
California, the duties and responsibilities of Executive officers are to enforce
the laws, to investigate, and to prosecute. Those charged with this duty should
not be the sole judges of when to utilise constitutionally sensitive means in
pursuing their tasks.
66
With regards to the CMS, there is a risk that the
Executive branch agents may breach the authority vested in them and use the

62
Dawn Johnsen, Functional Departmentalism and Non-judicial Interpretation: Who Determines
Constitutional Meaning?, 67 LAW & CONTEMP. PROBS. 105, 115 (2004) (The effectiveness
of...principled self-restraint and external political checks in turn depends heavily on the
traditional values of transparency and accountability.)
63
Satires (Satire VI, lines 3478).
64
Laura Donohue, Anglo-American Privacy and Surveillance, 96 J. CRIM. L.& CRIMINOLOGY 1059,
1167-70 (2006), at 1193.
65
Griffin Dunham, Carnivore, the FBIs E-mail Surveillance System: Devouring Criminals, Not Privacy,
54 FED. COMM. L.J. 543, 554 (2002) at 562.
66
See 347 U.S. 128, 132, 317 (1954) (internal citation omitted).

118
CMS to advance ulterior purposes.
67
Information collected surreptitiously can
be used to blackmail or discredit opponents by revealing embarrassing secrets.
Indian political history furnishes numerous examples of this
phenomenon.
68
Officials, in particular political positions, have been tempted to
serve their own goals. When there is too much intelligence in the hands of the
Executive, it can also hide its failures easily. This would ultimately defeat the
whole objective of protecting public interest for which the CMS is designed.
Deterring such behavior by Executive branch agents is a critical
component of our constitutional system and to ensure this, it is necessary to put
restraints on the Executive branch and keep the CMS insulated from
unnecessary Executive interference. Placing it under the exclusive control of the
President of India, or the Prime Ministers Office, or the Research and Analysis
Wing are some of the options. The CMS should be allowed to carry out
surveillance and arrive at its findings purely on the basis and strength of the
facts it collects and by going dispassionately into the merits and demerits of
those facts. Proper and routine disclosures about its activities through formal
notifications, hearings, briefings, written submissions and testimonies have to
be made to both houses of the Parliament.
An appropriate judicial authority also needs to be set up for the purpose
of scrutiny over the Executives purported violations of the privilege held by
the CMS. Judicial oversight however need not mandate that law enforcement
officers must conform to the requirements under the traditional system of
warrants. It could rather be a simple system of regular reporting and auditing.
This is because surveillance practices in an electronic police state, aim to shift
from operations targeted at individual suspected persons to operations which
do not identify targets at the very onset but focus on interpreting behavior
patterns based on data and information. Alternatively, courts may strengthen
judicial review by reconsidering or amending the existing jurisprudence on
privacy to recognise e-mail, social networking technologies and advanced
mobile communication technologies as sui generis rather than relying on
imperfect analogies to older technologies.
Post-acquisition minimisation procedures need to be designed to limit
the powers of the Executive branch officials to only those materials that fall

67
Terry Moe, Politics and the Theory of Organisation, 7 J.L. ECON. & ORG. 106, 124-25 (1991).
68
See, Saikat Dutta, We, The Eavesdropped, OUTLOOK, May 3, 2010.

119
legitimately within their purview. Minimisation would mean destruction of
inadvertently acquired communications of citizens at the earliest practicable
point, if it does not contain foreign intelligence information or evidence of a
crime or matters of serious national interests. All such material acquired must
be destroyed, say within five years, and for Internet transactions, say within two
years, from the expiration date of collection.
Lastly, the CMS and its officials should be made subject to another layer
of monitoring. Their activities need to be regularly monitored through another
computerised surveillance system to check for tendencies of agents to
overreach or to leak information for malicious purposes. The operations of this
second layer of monitoring may follow that of a corporate internal audit
committee. The second layer may also be composed of non-agency personnel
and this second layer can be privy to confidential surveillance to assure
compliance with existing privacy protections.
V. CONCLUSION
The government's most important technique of control is no longer
merely watching or threatening to watch individuals. It is actively analysing and
drawing connections between data. Much surveillance occurs without any
knowledge that one is watched. Data mining technologies can record perfectly
innocent behavior that no one is particularly ashamed of and draw surprisingly
powerful inferences about people's behavior, beliefs, and attitudes. Over time,
these tools will only become more precise and effective. Thus the problem
today is not that fear of surveillance will lead individuals to docile conformity,
but that even the most innocent and seemingly unimportant behaviors can
increase knowledge about both the individual and others connected to him.
Individual behavior may tell things about individuals that they may not even
know about themselves in the first place. In addition, knowledge about some
individuals can generate knowledge about others who are not being directly
watched. Individuals can no longer protect themselves simply by preventing the
government from watching them, for the government may no longer need to
watch just them to gain knowledge about them.
For many individuals, such extra-ordinary methods of surveillance pose
a significant risk to privacy and, under an extremist view, represent a first step
towards an Orwellian police state. However, as the author in this article shows,
such extremist rhetoric exaggerates the threat of surveillance, especially, in an

120
increasingly digital world, where individuals are no longer armed with
appropriate tools to construct their personal privacy barriers. Besides, for five
decades, the Supreme Court seems to have allowed itself to be guided by crime
control, public interest, and security concerns which has resulted in an abstract
body of jurisprudence that is unwilling to fortify and protect individual privacy
against government invasions. This makes the invocation of privacy rights a
difficult exercise even in very sensitive cases. Lastly, even though security
concerns justify the need for surveillance systems in a country like India,
surveillance has also begun to offer a wide range of economic and social
benefits by aiding in large-scale welfare programs. This further strengthens the
case for deploying mass surveillance to better manage the day-to-day activities
of the government. Thus, surveillance will become a permanent feature of
governance, in a manner that will be as ubiquitous in time as the familiar
devices of the regulatory and welfare states, and consequently gain greater
acceptance in law. However at the same time, it is important to ensure that the
wisdom of judiciary is not blinded by advances and marvels of technology alone
but it must consistently maintain the delicate balance between ensuring better
law and order systems and securing the contours of personal liberty that are
embedded in the Constitution.

121
ESTABLISHING THE JURISPRUDENCE AND
CONTEMPORANEOUS RELEVANCE OF INSTANT
CUSTOMARY INTERNATIONAL LAW
Sarthak Malhotra
*
and Sujoy Sur
**

Customary International Law has been and is one of the foremost sources of
international law. However, in a world where time and systemisation are of utmost
importance, traditional Customary International Law, at times, comes across as rather rigid
and unmethodical in establishing and espousing binding customary rules. The solution to this
difficulty has been achieved in the form of Instant Customary Law, where a much greater
emphasis is placed on the legal intent or the subjective element of opinio juris rather than
consistent state practice. Instant Customary Law claims that the legal intent of a state
accompanied by a minimum amount of state practice in accordance with the legal intent is
sufficient to establish a customary rule which binds the state. This emerging concept of instant
custom in international law has gripped the attention of many and as a result, much literature
has been devoted to outlining its contours and understanding its underlying jurisprudence. An
important factor contributing to the increased recognition of Instant Customary Law is its
ability to address the shortcomings and inadequacies of traditional Customary Law. After
establishing the jurisprudence of Instant Customary Law, this article delves into the practical
aspect of Instant Customary Law, by taking some contemporaneous instances which further
substantiate its relevance and its efficiency as a source of law in modern times. In that stride,
the article will discuss, inter alia, the legally binding effect of UN resolutions in light of the
Bush Doctrine, stance taken by the international community towards Libya with respect to
the recent Arab Spring revolution and how the new age web-based social platforms have
become an integral medium to discern the legal intent, i.e. opinio juris of states. Finally, this
article will strive to establish how the jurisprudence of Instant Customary Law is congruous
with the present day scenario and needs to be acknowledged and understood by the
international community at large.
I. INTRODUCING THE LEGALITY OF CUSTOMS
Customs have played a principle role in the development of legal
systems around the globe. The traditionalistic temper, which customs usually

*
II
nd
Year, B. Com. LL. B, Gujarat National Law University, Gandhinagar.
**
II
nd
Year, B.A. LL. B, Gujarat National Law University, Gandhinagar.

122
emanate, have given them a primordial but persuasive hold over our legal rules
and regulations.
1
Customs are usually practices in the early stages of legal
developments, more often than not unwritten and uncodified; their survival
ultimately protracted because of what can be called an aura of historical
legitimacy.
2
The gravity of customs as laws in most of national legal systems has
gradually diminished over the past couple of decades
3
with the codification of
laws, modernisation of legal machinery and the presence of strong legislature.
This however, has not been the case with international law. Customs in
international law still carry a lot of weight and precedence in governing the
affairs between States, primarily because international law is still burgeoning and
lacks any centralised institution to which all the States conform and accede to.
Secondarily, the body of written norms alone cannot serve as a basis for a
coherent legal order with the consequence that the lacuna must be filled by
unwritten rules and principles i.e. customs.
4

Customary International Law can be said to be broadly incorporated of
two elements: patterns of state practice or behaviour and patterns of a
psychological belief that such behaviour is law which is termed as opinio juris
sive necessitatis.
5

Although Article 38(1)(b)
6
of the Statute of the International Court of
Justice (ICJ Statute) defines custom as an evidence of a general practice
accepted as law, there is no concurrence on how to elucidate the two elements
of this definition.
7
In this paper, the authors will attempt only to clear the
misconceptions surrounding the former of the two elements in the above
definition, while acknowledging that the latter element is also not free of

1
See generally M.N. SHAW, INTERNATIONAL LAW, (Cambridge University Press, 2003).
2
See e.g. R. M. UNGER, LAW IN MODERN SOCIETY: TOWARDS A CRITICISM OF SOCIAL
THEORY, 49 (New York: Free Press, 1976), who notes that customary law can be regarded
as any recurring mode of interaction among individuals and groups together with the more
or less explicit acknowledgement by these groups and individuals that such patterns of
interaction produce reciprocal expectations of conduct that ought to be satisfied; See also R.
DIAS, JURISPRUDENCE, ch 9, London, (5
th
ed. 1985), and H. L. A. HART, THE CONCEPT OF
LAW, Oxford (1961).
3
See H. VAN HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW, 114 (1983).
4
Petersen, infra note 7.
5
Opinio juris sive necessitatis was first formulated by the French writer Francois Geny to
differentiate between legal custom and mere social usage. See generally Franois Gny Mthode
dInterprtation et Sources en Droit Priv Positif, 110 (1889).
6
United Nations, Statute of the International Court Of Justice, June 26, 1945, art. 38(1)(b).
7
N. Petersen. Customary Law without Custom-Rules, Principles, and the Role of State Practice in
International Norm Creation, 23 AM. U. INT'L L. REV. 275 ( 2007).

123
incongruity. The issue of general state practice principally deals with the
leitmotifs of what kind of activities constitute state practice and the legality of
those state actions in light of the psychological element of International
Customary Law i.e. opinio juris, the issue which this paper specifically focuses on.
The principle requirement of state practice is that it should be prolonged over a
period of time and recurring to get a legal attestation from the international
community. State practice being an objective element was concentrated upon by
courts and was used to ascertain the behavioural patterns of states, thus,
inductively determining the customary arrangement between States.
8

However, in the Nicaragua case
9
the ICJ initially defined customary law
constituting both state practice and opinio juris, but on a subsequent analysis of
facts the ICJ relied and concentrated only on the element of opinio juris without
directing any analysis of state conduct.
10
The Court in principle upheld the two-
pronged approach, while arguably in substance it only relied on the element of
opinio juris.
11
What can thus be safely concluded is that the element of
psychological intent of the state may hold precedence over actual state practice
especially in circumstances where sufficient instances of putting that intent into
practice have not been afforded to a state. Waiting for such instances to first
occur and for the state to then apply its belief of a custom to such instances,
so that it may develop into a concrete practice and can be upheld as a proof of a
binding custom, is what makes the traditional International Customary Law a
particularly long and tedious process.
Moreover, jurists and scholars have often debated and concurred on the
kind of activities which envisage state practice but the issue of duration of that
state practice and its recurrence has been an area of constant gainsaying and
disagreements. In the North Sea Continental Shelf cases ICJ pronounced that
merely a passage of a short period of time will not necessarily be a bar to the
formation of a new customary law, it is just that the state practice must be in
recognition to the rule of law involved.
12
In general, the time element is

8
B. SIMMA, International Human Rights and General International Law: A Comparative Analysis, in
THE PROTECTION OF HUMAN RIGHTS IN EUROPE, IV COLLECTED COURSES OF THE
ACADEMY OF EUROPEAN LAW, 153, 216 (Vol. 2 1993).
9
Infra note 68.
10
Id.; Supra note 7.
11
Infra note 13.
12
The North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands), ICJ Reports, Feb 20, 1969, 3, 29, 41, 43, 72 ILR
(1969).

124
considered to be dependent upon the circumstance of the case and the nature
of usage in question and has not been conclusively settled, thus, providing
scope for incertitude and deliberations.
13
With the development and branching
of law in fields which are evolving at a fast pace, the element of time has come
into question, not only because time is of great essence in modern times but
also because there is no duration of state practice specified in the international
legal framework. This has given the scope for a wider interpretation, possible
under the opinio juris element, thus, prevailing in magnitude over the element of
state practice to give us an Instant Customary International Law.
The term Instant Customary International Law in itself is not new but its
piecemeal use by the international community over the years in contemporary
matters of international law is making it gradually grow in importance. In light
of the contemporary phenomenon of social media and trend setting practices by
some states, the increasing importance of Instant Customary Law, which some
believe is a paradoxical doctrine in itself as it over-rides the very focal point
around which a custom revolves - time, will now be examined and reflected
upon.
II. ESTABLISHING THE JURISPRUDENCE OF INSTANT
CUSTOMARY INTERNATIONAL LAW
The concept of custom offers an appealing sense of simplicity. Yet,
upon closer analysis, it almost mystically transforms into a perplexingly complex
theoretical dilemma. The dilemma is reflected in the traditional view of custom
formation.
14
This dilemma is because of the requirement of prolonged state
practice along with a belief in that state practice by a rule of international law.
The dilemma intensifies when these requirements are insisted upon for
formulation of something as foundational as rule of law.
15
Instant Customary
Law, as it will be seen further, is free of any such uncertain practice over time
developing into belief loops, as it mainly relies on the legal element of opinio
juris.
The practice of Instant Customary International Law, although,
considered a modernist approach finds its roots in the mid nineteenth century,
as old as the concept of International Law itself.

13
14
J.L. Slama, Opinio juris in Customary International Law, 15 OKLA. CITY UL REV. 603 (1990).
15
Id.

125
It was in 1840 that Puchta and Savigny put forth the view that custom
was merely the immediate and spontaneous revelation of the common popular
sentiment.
16
They were the first to instigate the line of thinking, which focused
more on the subjective element of state practice instead of the state practice
itself i.e. the psychological element of opinio juris. Prior to this, a majority of the
theories reiterated that material usage forms the basis of custom. Puchta and
Savigny contended the formation of custom on the basis of this psychological
element only. They argued, If 'law' is the expression of popular consciousness
or will, then the overt or tangible aspect of custom dwindles in relevance and
importance. So long as we can discover the popular sentiment, what need is
there for an overt act or precedent?
17

Further, it was Bin Cheng in 1968 who is formally accredited to have
introduced the concept of Instant Customary International Law.
18
Bin Cheng
argued that it is only opinio juris which is necessary to constitute a binding
customary law. Practice does not have any constitutive role to play in the
establishment of customary law; rather it has only an evidentiary function to
play.
19
In Bin Chengs opinion, the U.N. Resolutions on Outer Space,
20
which
had been adopted unanimously, constituted Instant Customary Law and
required no further proof of state practice. Bin Cheng laid complete emphasis
on the psychological element of opinio juris considering it to be more logical and
discernible.
The traditionalist view, however, established itself as word of law,
especially after Article 38(1)(b) of ICJ Statute was interpreted as the re-iteration
of the two traditionalist elements of opinio juris and state practice. Professor
Anthony DAmato gave a digressive view in 1971
21
, criticising the traditional
view as being over complicated. Traditionally, practice was a determining
constituent element in understanding and deriving customary international law,
as the courts had to objectively concentrate on the state practice and induce the

16
ANTHONY DAMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW, Ithaca, 274, 11
(NY and London Cornell University Press, 1971).
17
Id.
18
Bin Cheng, United Nations Resolutions on Outer Space: Instant International Customary Law? 5
INDIAN J. INTL L. 23 (1965).
19
B. Simma & P. Alston, Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12
AUST. YBIL. 82 (1988).
20
See G.A. Res. 1721, U.N. GAOR, 16th Sess., Supp. No. 17, U.N. Doc. A/5100 (Dec. 20,
1961); G.A. Res. 1962, U.N. GAOR, 18th Sess., Supp. No. 15, U.N. Doc.A/5515 (Dec. 13,
1963).
21
Id.

126
law by collecting and systematising facts of state conduct. He criticised the
traditionalist view by arguing against the most palpable conundrum present in
its line of thinking, that of the indefinable repetitions of a usage to generate a
legal obligation, declaring it as inconsistent and muddled. Instead, he
reformulated the concept of determining customs into simpler and discernible
elements of articulation and act.
22
Professor DAmatos theory suggests
that extension of existing articulation theory that allows states articulations to
anticipate the element of practice, thus letting international state actors signal
how they might wish the norm to develop before any specific incidence of
conflict occurs.
23
States fulfill the articulation component by making
announcements of their intentions: announcements that they may make
through formal unilateral statements as well as through bilateral or multilateral
informal understandings.
24
The States then act upon the articulations, which are
based upon evidentiary motivations, so pronounced in a significant and real
way, thus, substantiating the articulation. Therefore, once the act occurs, the
previously articulated rule or pronouncement takes a life of its own and
manifests itself into a rule of law capable of being cited as a custom in similar
instances arising in future.
25
A state, therefore, at the bare minimum, can cite
one instance of an act following the articulation to proclaim it as a customary
international law. DAmato, thus, set the precedent for the claim-oriented
approach
26
, but it certainly gave a much more systemised and uniform method
of recognition of international customary rules as compared to the traditional
view which DAmato himself pilloried as mystical jumps from non-law to law
according to the number of repetitions.
27

Bin Cheng further espoused this approach by contending that the
animus, the psychological element, has been of cardinal influence in many cases

22
Id.
23
V. Fon & F. Parisi, International Customary Law and Articulation Theories: An Economic Analysis,
INTL L. & MGMT. R., 202-203 (2006).
24
Id.
25
B. Langille, It's Instant Custom: How the Bush Doctrine became Law after the Terrorist Attacks of
September 11, 2001, 26 BC INT'L & COMP. L. REV. 145 (2003).
26
Id.
27
Niels, Supra note 7; Anthony DAmato was very vocal for a change in the International
Customary Law Scene, making him denounce the traditional view as self-contradictory and
incoherent. Besides vouching for the articulation approach, he also talked about special
customs (see The Concept of Special Customs in International Law) existing between states as
opposed to the general principles as generalised in the Statute of ICJ, art. 38(1)(b).

127
of the Permanent Court of International Justice
28
and International Court of
Justice
29
. Cheng, by psychological element, did not intend to mean so much the
mental process or inner motivation of a State when it performs or abstains
from acts,
30
he meant rather the acceptance or recognition of, or acquiescence
to, the binding character of the rule in question implied in a States action or
omission, or in other words, it being a rule of general law binding on all.
31

Cheng further argued that the role of usage in the establishment of rules in
international law hold a purely evidentiary function and by no means is it
necessary that the usage should be prolonged or should be consistent state
practice as such, provided that the element of opinio juris can be clearly
established. In international law the states are their own lawmakers,
32
therefore,
logically the binding force of rules and regulations of international law rests
with the consent or acquiescence of the state. If states consider themselves
bound by an internationally accepted rule of law or a rule between two states
then it should be treated as opinio juris, as long as the rule does not infringe the
right of third states not sharing the same opinio juris. Here, Cheng focuses on the
aspect of local customary law, a customary law existing between two states.
Professor DAmato has also deliberated on this issue, which is a divergence
from the general principles of international customary law a special customary
law between two states.
33

Chengs proposition of an Instant Customary Law is also re-iterated in
Professor Steins conclusion that opinio juris is no longer seen as a consciousness
that matures slowly over time, but instead as a conviction that instantaneously
attaches to a rule believed to be socially necessary or desirable.
34

It is this desirability that we will focus our attention upon. The
tumultuous process of the establishment of a legally binding custom over
decades seems to be an incongruous concept in recent times where immediacy

28
E.g. The case of the S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 28.
29
E.g., Asylum Case (Columbia v. Peru), [1950] ICJ Rep. 266 at 266, 276; Right of Passage Case
(Portugal v. India), [1960] ICJ Rep. 6, at 42-43.
30
P. Guggenheim, Contribution lhistoire des sources du droit des gens, 94 RECUEIL DES COURS
(1958).
31
Cheng, Supra note 25.
32
S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 18: The rules of law binding
upon States therefore emanate from their own free will as expressed in conventions or by
usages generally accepted as expressing principles of law....
33
D'Amato, The Concept Of Special Custom In International Law, 63 AM. J INTL. 211 (1969).
34
T. L. Stein, Approach of the Different Drummer: The Principle of the Persistent Objector in International
Law, 26 HARV. INT'L. LJ 457 (1985).

128
of legal sanctions and modish state actions are needed, in a world which is
nimbly recasting and where new concepts require advanced norms to govern
themselves. With the formation of so many international organisations, the
process of custom creation has been facilitated and hastened to a great extent.
For example- the UN provides a forum for the states to exchange and
harmonise their views to arrive at some form of compromise.
35
Space, social
media, human rights are some of the numerous concepts which have gained
significant force in global laws and cannot be contained by the rigidity of legal
philosophy of the older days. Professor Sohn following on the lines of Professor
Jennings
36
noted that,
The methods of developing new rules of customary international
law have greatly changed since the Second World War. These changes
have not been imposed on states by any external authority; they are the
result of a voluntary acceptance by states of the need to adapt the
methods of law-creation to the needs of the rapidly growing and
changing world community. Any prior restrictions on the law-creating
process were self-made, and they can be changed by the very method
that established them in the first place. The rules contained in Article 38
of the Statute of the International Court of Justice were appropriate at
the time of their adoption, and they are flexible enough to allow new
ways of ascertainment of the existence of a rule of customary
international law.
37

The pertinent question under consideration, therefore, should be that
what kind of acceptance and regulations can be constituted to have a legally
binding effect on the states. We will mainly focus upon the declarations of
bodies of universal legal importance and laws endorsed by some states, which
have been participative in treaty making pertaining to the area concerned, or
which can be said to be superpowers in their respective areas.
38

35
ANTONIO CASSESE, INTERNATIONAL LAW, Oxford, (Oxford University Press, 2005).
36
R. Y. JENNINGS, The Identification of International Law, in INTERNATIONAL LAW: TEACHING
AND PRACTICE 8 (1982).
37
Louis B. Sohn, Generally Accepted International Rules, 61 WASH. L. REV. 1073, 1079 (1986).
Evolving methods of developing new rules of customary international law are the result of
the need to "adapt the methods of law-creation to the needs of the rapidly growing and
changing world community.
38
Cheng, Supra note 25. Bin Cheng in his paper gave admittance of many delegates who
believed that in certain cases the countries which have a sort of monopolistic control in
particular spheres, those countries should assent to the declaration, otherwise it ceases to

129
Since the inception of the United Nations as a stable international body
and the International Court of Justice as the insurmountable apex judicial world
organ, the legal effect of declarations, resolutions, international cases and treaty
making has gained a strong binding force. Resolutions of states can only be
considered to have a binding effect if they are able to establish the opinio juris
and substantiate it with an evidence of realising the rule in practice. Considering
the legal standing which the UN has in the present scheme of things, it will be
convenient to take as a starting point, the relationship of General Assembly
Declarations with customary law.
39
Resolutions of the General Assembly may
constitute state practice; they may originate state practice; corroborate
customary law; and they may supply opinio juris in some cases.
40

As has been mentioned, earlier the transition from custom to law was
fundamentally inductive; the approach now has evolved into a deductive one.
41

Rules, declarations, for instance, by the General Assembly, and the surrounding
ritual itself, are taken as the genesis for the possible development of customary
law in the event that state practice ultimately happens to lock on these
proclamations, as well as a law making process which is self-sufficient and
complete in itself; even in the face of contrasting external facts.
42
The
dominance of retrospection has taken a back seat here, whereas, immediacy and
urgent necessity, in the form of lawful consent of the state (opinio juris), has
come to the fore.
Turning from United Nations to academic circles, Lung-Chu Chen, an
internationally recognised scholar and professor of international law at New
York Law School
43
, in his evaluation of the new Restatement's provisions on the

carry a binding effect and becomes a dismissive document. An example of this would be
Space Law during the 1960s. Absence of USA and USSR in any multi-lateral treaty or
resolution with respect to Air or Space Law would not be considered to have a binding or
directive effect simply because of the pre-potency of these two countries in practically every
aspect in the areas of Air and Space Law.
39
O.Y. ASAMOAH, THE LEGAL SIGNIFICANCE OF THE DECLARATION OF THE GENERAL
ASSEMBLY OF THE UNITED NATIONS, (The Hague: Martinus Nijhoff Publishers, 1966).
40
There are at least two other possible grounds on which it might be claimed that United
Nations resolutions and declarations are lawmaking, namely as authoritative interpretation
of the charter (Asamoah, op. cit.) and as statements of general principles of law as in
Article 38(i)(c) of the I.C.J. Statute.
41
Simma and Phillip, supra note 26.
42
Id.
43
Professor Lung-Chu Chen, J.S.D (Yale), L.L.M (Northwestern). Professor Chen is an
authority on International Law, Humanitarian Law and U.S. Constitutional Law. He has been
the former advisor to the President of Taiwan.

130
protection of persons, considers quite categorically that the Universal
Declaration's frequent invocation and application by officials, at all levels of
government and in many communities around the world have conferred on it
those expectations characteristic of customary international law.
44

Therefore, putting forth the concept jurisprudentially in present times,
we can surmise that Instant Customary International Law is a system of
enforceable, binding and sanctionable source of law, branching out of the most
legally compelling source in the International arena i.e. Customary Law. This
system of Instant Custom revamps the concept of customary law by focusing
and re-iterating on the importance of the subjective aspect of opinio juris and
sidelining the objective element of prolonged state practice over many years for
its tardiness. The legal validity that it derives is from the active or passive
consent of the states. Therefore, once a state ratifies or acts upon its agreed
part, it instantly acquires the character of a custom as it re-enforces the
psychology of the state that it has put into practice.

III. CONTEMPORANEITY OF INSTANT CUSTOMARY
LAW
A. UNDERSTANDING THE LEGAL EFFECT OF RESOLUTIONS
To deal with a range of internationally relevant subjects ranging from
environment to terrorism, states have frequently engaged in multi-lateral treaties
and protocols and resorted to UN Declarations. Additionally, the growing
prominence of International Customary Law can be understood from its
application in the field of International Humanitarian Law. In this context,
especially in light of the international proceedings in the past one and a half
decades, a discussion on the Bush Doctrine becomes vital.
The Bush Doctrine was adopted in response to the terrorist attacks of
9/11. It became an instant custom within weeks as states began acting in
accordance with the rule first articulated by President Bush, in his address to the
nation on 11
th
September 2001 and subsequently by the U.N. General Assembly
and the Security Council, on 12
th
September 2001, which were unanimously

44
L.C. Chen, Restatement: Protection of Persons, 14 Yale JIL 546-547 (1989); See also, MCDOUGAL,
LASSWELL & CHEN, HUMAN RIGHTS AND WORLD PUBLIC ORDER, 273-274, 325-327 (Yale
University Press, 1980). For a recent Soviet voice to this effect see V.E. Kartashkin, The
Universal Declaration and Human Rights in the Contemporary World, 39 Soviet YBIL (1988).

131
adopted.
45
These two instances provided the required articulation of the opinio
juris of the states in following the rule and abiding by the resolution. The states
further complied with the procedures and activities of the US administration,
thus putting their intent into practice and binding themselves as they normally
would in case of a custom. This immediate compliance further underlines the
legal intent of the states in carrying out the action and reduces the need to carry
out the action repetitively over a prolonged period for the custom to have some
force. Importantly, such compliance and actions at an international stage are
taken to be as requisite state actions by which a state can be held bound.
46
An
example of this is Britains active participation in the military operations
undertaken by the US administration in Afghanistan, weeks after the resolution
and the doctrine.
47

The terrorist attacks of 11
th
September 2001 acted as a springboard for
the creation of many international agreements on counter-terrorism. A number
of laws were formulated and multilateral treaties and U.N. resolutions were
either expressly or tacitly adopted by the nation states on various sub-issues
ranging from suppression of nuclear terrorism
48
, implementation of anti-
terrorist conventions
49
, and condemnation of terrorist activities.
50
Such rapid
and progressive development of binding international rules, which in this case
were, originally established by one state and subsequently accepted and adopted
by other countries, is a classic example of Customary Law going instant and
crossing the barrier of time and tradition.
To delve a little deeper into the legal implications and repercussions of
the states adoption of international resolutions, it is important to iterate here
the theory put forth by Marko Divac berg to assess the legal effects of
resolutions and treaties. Under this theory, there are three basic types of legal
effects.
51
A resolution may have the legal effect of (i) creating obligations, rights

45
Id.
46
A. PELLET, Article 38, in ZIMMERMAN, OELLERS-FRAHM & CHOUMUSCHAT, THE
INTERNATIONAL COURT OF JUSTICE - A COMMENTARY 751 (London: Oxford University
Press, 2006); See also, Congo v. Belgium. [2002] ICJ Rep. 3, 23-24.
47
Blair is the USAs Best Secretary of State, BBC Worldwide Monitoring, (Oct. 16, 2001), available
at LEXIS, News Group File.
48
International Convention for the Suppression of Acts of Nuclear Terrorism New York, April
13, 2005.
49
1373 U.N. SCOR, (4385th mtg.), U.N. Doc. S/RES/1373 (2001).
50
1368 U.N. SCOR, (4370th mtg.) U.N. Doc. S/RES/1368 (2001).
51
D. Divac berg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in
the Jurisprudence of the ICJ 16 EUR. J. OF INTL. L. 881, 879-906 (2006). The word effect simply

132
and/or powers (which we shall call substantive effects)
52
and/or (ii) making
determinations
53
of facts (e.g. that an alleged fact is true) or legal situations (e.g.
that an obligation was violated), which trigger the substantive effects (causative
effect). To this is added (iii) how and when the substantive effects operate
(modal effects).
54

Sometimes, there only exists a mirage in the name of legal effects. This
is the case when a resolution simply restates an obligation, a right or a power
that already exists.
55
Declarations in principle only interpret or restate the law
and have no legal effect; and a resolution which merely interprets the Charter
does not, in theory, have any legal effect of its own.
56
To the extent that a
resolution details and substantially adds to the Charter, any ensuing legal effect
does not come from the resolution of a given organ per se but from the fact that
it may be considered generally acceptable by UN Members.
57
This acceptance of
the resolution in letter and spirit is the opinio juris of states. In the event of
deficiency of legal effects, the same can be obliterated if there is a strong and
substantiated psychological intent present in the states accompanied or
followed by an act which is in accordance with their intent.
58
The vigorousness
of the intent is more often than not automatically developed or already present
when times of urgency prevail.
59
Thus as an example, any state which supports a
state having an interest contrary to that of the general international community
and/or the supra-national bodies such as United Nations, whether directly or
indirectly through the use of media, political statements, similar resources etc.,
is said to be bound by an instant custom and can be considered to oppose the

means consequence. The legal effect should be distinguished from any moral, political, or
other effects which do not fall within the scope of this article.
52
Combacau, Lcoulement du temps Socitfranaisein pour le droit international, 77 LE DROIT
INTERNATIONAL ET LE TEMPS, 2122, 98100 (2011).
53
berg, supra note 55.
54
Id.
55
Id.
56
Id.
57
Report of Committee IV/2 of the UNCIO, San Francisco, 12 June 1945, UNCIO Doc 933,
IV/2/42(2), at 7; 13 UNCIO Docs 709, at 709710.
58
Cheng, supra note 25; Sohn, supra note 38; See also, DAmato, supra note 16.
59
Bush Doctrine in itself is an example of it; Grotian Moment can be an example of it. The
term Grotian moment signifies a legal development that is so significant that it can create
new customary international law or radically transform the interpretation of treaty-based
law. Grotian Moment - The International War Crimes Trial Blog, School of Law, Case Western
Reserve University, (July 29, 2012) available at http://law.case.edu/grotian-moment-blog/

133
general international considerations even though such support or practice might
have been for a very short period of time.

While celebrating the boons of Instant Customary Law, it must also be
kept in mind that it is severely criticised for not having as staunch a binding
force as the traditional customary law. Though it hasnt been expressly over-
ruled by the international fraternity, it also doesnt command wide-spread and
uniform concurrence. However, keeping in mind that it is still an emerging
concept of international law, what is sought to be propounded in this article is
that nation states are gradually showing a willingness to consider this as an
alternate method of source establishment in modern times of rapid reaction.
B. TAKING LIBYA AS A CONTEMPORARY CASE STUDY
Applying Instant Customary Law in the case of Libya which was
subjected to large scale international intervention during its civil war, we can
say that NATOs alignment with the Benghazi rebels (and National Transition
Council) was illegal
60
, inter alia, according to the seminal case of Nicaragua v.
United States of America.
61
In this case, the ICJ held that the United States of
America, by training, arming, equipping, financing and supplying the contra
forces or otherwise encouraging, supporting and aiding military and paramilitary
activities in and against Nicaragua, has acted against the Republic of Nicaragua
in breach of its obligation under customary international law not to intervene in
the affairs of another State.
62
Further, general intervention is proscribed both
by Article 2(7) of the UN Charter and provisions of the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Co-
operation between States, both of which NATO states are party to.
63
But an
accommodating exceptional view was also mentioned in the same case with the
ICJ stipulating that reliance by a state on a novel right or an unprecedented
exception to the principle [such as humanitarian intervention] might, if shared

60
R. Pelekanos, Customary International Law and the Scramble For Libya (Dec 16, 2011), available at
http://crisisproject.org/customary-international-law-and-the-scramble-for-libya.
61
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America) [1984] I.C.J. Reports 392.
62
The principle of non-intervention is also supported by UNSC Resolution 2131 (XX) 1965,
containing the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of
States and augmented by Resolutions 31/91 of 14 December 1976, 32/153 of 19 December
1977, 33/74 of 15 December 1978, 34/101 of 14 December 1979 and 35/159 of 12
December 1980 on non-interference in the internal affairs of states.
63
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of
America), [1984] I.C.J. Reports.

134
in principle by other states, tend towards a modification of customary
international law.
64
The resolution which allowed this alignment (S/RES/1976)
was not vetoed and was entertained by the BRIC Group and Germany with
acquiescence. In the context of international law, neutrality of this nature is
interpreted as a passive form of consent.
65
The ICJ had further proclaimed that
if states in coalition develop a legal intent and act upon it, then, to go against
the norms of non-intervention could be taken as an exception and a new rule in
itself. This can be argued to be an Instant Customary Law formation, a
development of legitimate expectation by the international community over a
short period of time. Such intervention with states acceding to it can be said to
be customary law in itself, developed out of the Right to Protect
66
mechanism
and giving scope for states in general to act along these lines in similar cases as
that of Libya here.
Therefore, this can be taken as a very relevant contemporary case of the
reinforced recognition of the jurisprudence which Instant Customary
International Law espouses and also a case highlighting the need for the
international community to adapt to this new method of custom formation
which binds states. A word of caution however must be added here. It is neither
argued, nor should the ICJ judgment be interpreted to mean, that any and every
legal intent rapidly formed under exceptional circumstances would set a correct
precedent. Especially in light of developments as they unfolded in Libya, after
NATOs interventions, an instantly formed opinio juris may not ultimately
develop as a custom if the action taken on its behest cannot stand legal scrutiny
or is immoral or unethical.
C. EMERGENCE AND ADMISSIBILITY OF SOCIAL MEDIA AS
INSTANT CUSTOM
The increasing access to the internet has given rise to a culture where
the public not only acts as a consumer but also acts as a contributor or
producer.
67
It leads to the formation of a participatory environment whose main
components are civic engagement and creative expression. In a nutshell,

64
Id.
65
See generally Shaw, supra note 1, at 80-82.
66
R2P Right to protect mechanism was introduced by the 2005 World Summit and that
formed the normative framework of S/RES/1976 that authorised NATOs intervention in
the Maghreb.
67
JENKINS, CONFRONTING THE CHALLENGES OF PARTICIPATORY CULTURE: MEDIA
EDUCATION FOR THE 21ST CENTURY, (The MIT Press, 2009).

135
Young people creatively respond to a plethora of electronic signals and
cultural commodities in ways that surprise their makers, finding meanings and
identities never meant to be there and defying simple nostrums that bewail the
manipulation or passivity of consumers.
68

Social media has become an evidentiary gold mine and has been
recognised as a valid form of evidence in a plethora of cases relating to privacy,
contract, trademarks, copyright issues
69
, etc. Recently, the electronic social
media has been considered as strong evidence particularly in relation to
highlighting the psychology of a state through its state actors. Evidentiary
sources existing in the form of social media can also be termed as Instant
Customary Law which may be understood as valid rules which develop without
undergoing a long period of gestation. International Humanitarian Law
70
, which
is a prime benefactor of the jurisprudence emerging out of Instant Customary
International Law, has been actively using electronic social media and e-
evidences as evidences in the court.
The recognition by the international community of social media as a
valid source of evidence can be seen in the light of numerous international cases
where social media was accepted as evidence. However, lack of authoritative
literature on this topic proves to be an impediment in understanding this
particular application of Instant Customary Law.
Social Media, by providing on ground witness accounts, reduces the
dependence on traditional sources such as testimonies. It has also expanded
access to information. The role of social media in Arab Spring is well known.
71

It has expanded access to evidence of human rights abuses beyond mainstream
evidences. Technology has allowed us to see into many parts of the world that
were previously shrouded by oppressive governments or geographical

68
P. Willis, Foot Soldiers of Modernity: The Dialectics of Cultural Consumption and the 21st-Century
School, 73 HARVARD EDUCA. REV. 390-415 (2003).
69
The enactment of Digital Millennium Copyright Act (DMCA) and DMCA Title II, the
Online Copyright Infringement Liability Act (OCILLA) and the efforts made by the
Congress in USA for passing the Stop Online Piracy Act (SOPA) in the House and its Senate
companion bill, the Protect IP Act (PIPA) go a long way in strengthening the opinio juris of
the states for the evidentiary value of Social Media.
70
International humanitarian law is a set of rules which seek to limit the effects of armed
conflict because of humanitarian reasons. International humanitarian law is also known as
the law of war or the law of armed conflict.
What is International Humanitarian Law? ICRC (July, 2004) available at http://www.icrc.org/eng
/assets/files/other/what_is_ihl.pdf [Last Accessed on 10 March 2014].
71
D. Tapscott, Social Media Can Help Build Governments Too, Huffington Post, May 23, 2011.

136
boundaries.
72
In fact, digital technologies and mobile devices have become the
primary sources of documentation. They have also helped in revolutionising
political conflict and documenting it.
For the purpose of admissibility, electronic evidence falls under the
category of documentary evidence, defined by tribunals as anything in which
information of any kind has been recorded.
73
The opinio juris, for accepting
admissibility of evidence emanating from social media, can thus be found in the
various pieces of legislations enacted by countries around the world. The rules
pertaining to litigation in England and Wales namely the Civil Procedure Rules
include social media within the broad definition of documents thereby
meaning that electronic documents which include instant messages and content
from social networking sites are covered within this definition. In India,
evidentiary value of electronic records which includes social media in its ambit
is discussed widely under Section 65A and Section 65B
74
of the Indian Evidence
Act, 1872. In a recent Quebec courts decision, the Commission des Lesions
Professionnelle has held that posts from the social networking site Facebook
are admissible in evidence, based in part on its finding that all Facebook content
is in the public domain.
75
Thus not only a majority of the countries but even
international courts and tribunals have recognised social media as a valid source
of evidence.
The evidentiary value of social media can be appreciated the most in the
cases of human rights violations. Social Media has been frequently used to
establish the grounds for persecution indictments and to provide a basis for an
international investigation. International NGOs like Human Rights Watch and
WITNESS have been collecting photos and videos of state-sponsored violence

72
B. Cole, The Web as a Spotlight: An Alternative Look at Technology in the Arab Spring, Huffington
Post, (Apr. 8, 2011), available at http://www.huffingtonpost.com/ben-cole/the-web-asa-
spotlight-an_b_850679.html
73
Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on the Prosecutors Motion
for Admission of Certain Exhibits into Evidence, Case No. ICTR-98-44-T, (25 Jan 2008) 5;
The Prosecutor v. Alfred Musema, Judgment and Sentence, Case No. ICTR-96-13-T, (27
January 2000) 53; See also ONEILL, ET AL., RAPOPORT CENTRE FOR HUMAN RIGHTS AND
JUSTICE, NEW WINE IN OLD WINESKINS? NEW PROBLEMS IN THE USE OF ELECTRONIC
EVIDENCE IN HUMAN RIGHTS INVESTIGATIONS AND PROSECUTIONS (2011).
74
65A: Special provisions as to evidence relating to electronic record; 65B: The contents of
electronic records may be proved in accordance with the provisions of this section.
75
See generally Legal Update, Employment and Labour, Occupational health and safety and workers
compensation, (August 2011) http://www.nortonrosefulbright.com/files/facebook-content-is-
held-to-be-admissible-in-evidence-pdf-83kb-55617.pdf ; R. Hudon, C. Tremblay, N. Aubin
March 2009. C.L.P. 412395-62C-1006, 2011 Q CCLP 1802.

137
from all over the world. Information created and disseminated via web based
technologies (social media) form a considerable part of their evidence. These
evidences, though, might only be having persuasive and influential value at
present but their increasing recognition as potent evidence cannot be ignored.
A famous example of use of electronic evidence is the case of
admissibility of Nick Hughess video footage in the infamous Rwandan
genocide case. In this case, in 1998, Hughes, a British Reporter shot a video of
the murder of a father and his daughter and other victims. This footage was
admitted as Exhibit 467 in the trial of George Rutaganda before International
Criminal Tribunal for Rwanda who was convicted and sent to Prison in 1998.
76

Photographs have also been used to document human rights abuses
since long time. Foremost examples of photographs being taken into
documentary account are the photographs of atrocities of the Opium Wars in
China, and the famous photograph of Kim Phuc, the Vietnamese child
running.
77
In the Milutinovic Trial at the International Criminal Tribunal for
Yugoslavia (ICTY), the Chamber had admitted the Prosecutors submission of
footage from the BBC and CNN after considerable perusal of their
authenticity.
78
Text messages have also been considered as valid evidence
sometimes.
79

Another landmark development in such case is the formation of the
platform called Wiki Leaks. This whistleblower site posted original classified
documents of the government, organisations and corporations online. This also
included secret military documents of Afghanistan wars and Iraq wars which
were certainly an eye opener for the whole world. The US Government reacted
swiftly and sharply to such disclosure which can be seen from the following
statement made by Richard Hass, President of Council on Foreign Relations,
United States of America that, Foreign governments may think twice before
sharing their secrets or even their candid judgments with American counterparts
lest they read about them on the Internet; resulting reticence will deprive

76
N. HUGHES, Exhibit 467: Genocide Through a Camera Lens, THE MEDIA AND THE RWANDA
GENOCIDE (2007).
77
S. Saywell, Kim's Story, The Road from Vietnam, Canadian Centres for Teaching Peace available at
http://www.peace.ca/kimstory.htm [Last Accessed on 27 July 2013].
78
Prosecutor v. Milutinovic et al., Decision on Prosecution Motion to Admit Documentary
Evidence, Case No. IT-05- !87-PT, (10 October 2010).
79
Neal Ungerleider, Violence and Death in Africa, 160 Characters at a Time, Fastcompany, (October
5, 2010) available at http://www.fastcompany.com/1693190/nigeria-sms-text-message-riot

138
policymakers of an important source of information and make decision making
more ad hoc and less systematic than it needs to be.
80
Such reaction by USA
initiated a chain of events which saw country heads reacting sharply and
countries working upon their cyber and whistleblower laws.
81
It can thus be
inferred that an unspoken and instant custom developed among the nation
states to condemn such acts and to send out a strong deterrence message by
collectively taking a stand against such disclosure.
The most noticeable recognition of electronic media, which impliedly
includes social media, is from the United Nations itself.
82
When it comes to
digital evidence, the principle of Chain of Custody is put to use. This principle is
used in determining admissibility of digital evidence taking into account the fact
that digital evidence can be changed/tampered with.
83
Chain of custody refers
to the chronological and careful documentation of evidence to establish its
connection to an alleged crime or incident.
84
From the beginning to the end of
the process, it is necessary to be able to demonstrate every single step
undertaken to ensure traceability and continuity of the evidence from the
incident to the courtroom.
85
In this determination, the principle of chain of
custody is applied to digital evidence in the same manner as it is applied to
physical-documentary evidence, thereby providing scope for its admissibility.
Considering the fact that this sort of admissibility is recognised by the United
Nations and no country has expressly opposed this admissibility, implies the
opinio juris of all the states to be actively and willingly bound by the United
Nations resolutions and conduct.

80
R.N. Hass, How to Read WikiLeaks, (Nov 29, 2010) available at
http://www.cfr.org/diplomacy-and-statecraft/read-wikileaks/p23500?cid=rss-fullfeed-
how_to_read_wikileaks-112910 [Last Accesse on 5 April 2014].
81
Gillard Condemns Wikileaks, The Sydney Morning Herald, Dec 2, 2010. Black, Sherwood &
Kamali, WikiLeaks claims are 'psychological warfare' says Ahmadinejad, The Guardian, Nov 29,
2010.
82
See, UNITED NATIONS OFFICE ON DRUGS AND CRIME (UNODC), CRIME SCENE AND
PHYSICAL EVIDENCE AWARENESS FOR NON FORENSIC PERSONNEL (New York, 2009).
83
Lucy L. Thomson, Admissibility of Electronic Documentation as Evidence in U.S. Courts, Centre For
Research Libraries,
Human Rights Evidence Study, (December 1, 2009), available at http://www.crl.edu/sites/de
fault/files/attachments/pages/Thomson-E-evidence-report.pdf
84
Id.
85
Id.

139
This admissibility proved to be sufficiently useful in Muhammar
Gaddafis murder case.
86
In October 2011, cell phone videos surfaced depicting
Muhammar Gaddafis death. These videos raised suspicions of war crimes
following which the International Criminal Court (ICC) Prosecutor proceeded
with the prosecution and investigation. These videos were used as
corroborative evidence by the ICC prosecutor to scrutinise whether Gadaffis
death was a war crime.
87
The admissibility of such evidence led to the proof of
gross International Humanitarian Law violations, putting liability on the state
actors responsible for it. No time could be lost in proving first that such videos
can be admitted as evidence because it would run the risk of counter-actions by
the state. The Instant Customary Law which had developed in favour of its
admissibility, and which Libya had become a party to by not objecting to such
practice being followed by other countries and by UN, became binding on
Libya. Such instances are strengthening the belief in admissibility of social media
as evidence. As a result, there are many organisations today that are active in
collecting electronic evidence and digital news and incident reports.
88

It is quite clear that a customary law is established when it influences
state conduct because of its legal nature.
89
One of the most qualified
commentators on the jurisprudence of international law, Sir Hersch Lauterpacht
opines that all uniform conduct of Governments (or, abstention there from)
should be regarded as evidence of the opinio necessitates juris except when it is
shown that conduct in question was not accompanied by any such intention.
90

The general recognition test regarding customary law could be found in West
Rand Central Gold Mining Company Ltd. V. The King
91
wherein the court ruled that
a valid international custom should be proved by satisfactory evidence that the

86
The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi [2012]. ICC- 01/11-01/11.
87
Sheridan, Groups seek probe of Gaddafis death, The Washington Post, October 22, 2011.
88
International NGOs like Human Rights Watch and WITNESS are some of the examples of
such organisations. A famous organisation of Mexico called Canalseisdejulio (Canal 6) is
active in collecting alternative information outside the influence of state-sponsored media
and large private houses.
89
See generally JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 3
(2005). (Based on the reasoning that international law evolves as a result of states acting
rationally to maximise their interests, according to the distribution of state power, and the
perceptions of other states interest).
90
H. LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL
COURT, (Cambridge University Press, 2003). See also the dissenting opinion of Judge Lachs in
North Sea Continental Shelf Cases; Federal Republic of Germany v. Denmark and The
Netherlands [1969] I.C.J Reports 3. and DAmato, Supra note 16.
91
West Rand Central Gold Mining Company v. The King, 2 K.B. 291[1905].

140
custom is of such a nature that it has received general consent of the states and
no civilised states shall oppose it. The above quoted illustrations prove to a
certain extent that the admissibility, acceptability and recognition of social media
as valid evidence in the international arena can be termed as a form of Instant
Customary Law.
The discussion in the North Sea Continental Shelf Cases
92
is consistent
with this inductive reasoning, Some states have at first probably accepted the
rules in question, as states usually do, because they found them convenient and
useful, the best possible solution for the problems involved. Others may also
have been convinced that the instrument elaborated was to become and would
in due course become general law. Many states have followed suit under the
conviction that it was law. In other words, the quiet or otherwise acceptance of
a rule by state should be seen as a milestone in the establishment of that rule as
a generally accepted law.
IV. CONCLUSION
We conclude by remarking that the growth of law is imperative with the
evolution of society. Similar is the case with International Law with respect to
customary formation of law and international relations. Codification is a
universally progressive step in the path of law and Instant Customary Law
vouches for something similar. Instant Customary Law warrants that a gestation
period is not necessary for the formation of customary rules and aims to
remove the arbitrariness emerging out of it by focusing on the systemised
aspect of sources of International Law i.e. treaties and resolutions. In light of
the various new age global phenomenon which have emerged in the past couple
of decades instantaneous action is the need of the hour, not only because time
is of utmost consideration but systemised action is desirable and serves a
constructive purpose. This systemisation is in contrast to the uncertainties
prevailing in traditional customary law due to the long gestation period and no
settled mechanism to discern the legal intent out of state practice or settle upon
a specified time period for a state practice. A definite time period is also not
plausible because of differing facts, circumstances and municipal laws or
customs.
93
Therefore Instant Customary Law by relying on just one decisive
element limits these uncertainties, making it more determinable and systemised.

92
ICJ Reports, 1986 at 98; 76 ILR at 432.
93
Supra note. 1 at 76.

141
International Law is becoming increasingly and intrinsically dynamic in its
approach. With the United Nations gradually increasing its stronghold over
global affairs over time, establishing its authority as a supra-national body, and
states striving for express recognition of formal legal intent along with state
practice, Instant Customary International Law tries to bridge this gap between
customary recognition of a states legal intent and minimal state practice.
Though semantically, it comes across as a paradoxical term in itself but it is not
contradictory semantics which we should be worried about. Instantaneous
recognition of state practice as customs is becoming increasingly prevalent and
can be easily touted as the way forward.
The Bush Doctrine, legal effect of UN resolutions and treaties, the Arab
Spring in context of Libya and the emerging admissibility and evidentiary value
of digital-social media in custom formation were some of the various incidents
to fathom the depth and reach of the practicability of Instant Customary
International Law. It should not be understood as an opposition to the
Customary Source of International Law, but rather as Customary Law re-
equipped to be able to discern and explain the contemporary global
phenomenon which could not have been predicted while the traditional view of
Customary International Law had installed itself back in the 1940s and 1950s.
It proves to be an efficient rule to bind states, which otherwise wouldnt have
been bound, and questions the states of their practice, while being an equally
efficient tool of understanding International State actions from a customary
perspective. It would, without an iota of incertitude, prove to be a prominent
source of international law and a much-discussed aspect of customary law in
future, with all its uncertainties and unenforceability resolved.


143
A CRITICAL OVERVIEW OF THE ASSISTED
REPRODUCTIVE TECHNOLOGIES (REGULATION)
BILL, 2010
Sriparna Dutta Choudhury
*

The practice of surrogacy today contemplates the use of assisted reproductive
technology, which makes it possible for couples who are unable to conceive children, to use their
own gametes to create their own unique embryos and for these embryos to be transferred to a
surrogate.
1
However, like most other developments in reproductive biology, the public perception
of surrogacy vacillates between two extremes: pro-family action on one hand and
commodification of women as breeder machines on the other. Contributing to this polarisation
of opinion is the growing popularity of India as a preferred destination for surrogacy on
account of its lack of well-defined laws on the subject. Therefore, there is an urgent need to
establish a legal structure to regulate the burgeoning surrogacy industry in India and address
the ethical, sociological and economic concerns associated with it. The Assisted Reproductive
Technologies (Regulation) Bill, 2010, currently pending in Parliament, aims to achieve the
abovementioned goals. However, there exists much scope for improvement on various key
parameters. This paper attempts to identify and address the shortfalls and omissions in the
Bill and suggests policy recommendations for protection of rights, particularly those of the
surrogate mother.
I. INTRODUCTION
In Indian society, the institution of marriage is sacrosanct and plays a
pivotal role in the continuation of lineage. The ability to produce children or
procreation is generally considered by society to be one of the fundamental
concomitants of marriage. The hurdle arises when a couple is unable to
procreate through conventional biological means. However, due to
advancements in medical science, infertility is not an ineradicable hurdle or a
reason to remain distant from experiencing parenthood any more. In this
regard, it is surrogacy which embraces these striving parents with hope.

"
II
nd
year, L.L. B., Campus Law Centre, Faculty of Law, University of Delhi.
1
Peter R. Brinsden, Gestational Surrogacy, HUMAN REPRODUCTION UPDATE, Vol. 9, No. 5, 483-
491 (2003) available at
http://humupd.oxfordjournals.org/content/9/5/483.full.pdf?origin=publication_detail.

144
Surrogacy is commercial or altruistic depending on whether the
surrogate receives financial remuneration/compensation for her assistance or
not. Commercial Surrogacy is a form of surrogacy in which a gestational carrier
is paid to carry a child to maturity in her womb and is usually resorted to by
well to do infertile couples who can afford the cost involved.
2
Altruistic
surrogacy, on the other hand, is the kind wherein there is no involvement of
money as a consideration for the surrogate. The surrogate carries the child of a
couple purely on the basis of love and affection.
Today, there is prolific growth in reproductive tourism and especially,
commercial surrogacy. This proliferating nature of commercial surrogacy led
the Apex Court of India to observe in Baby Manji Yamada v. Union of India and
Another
3
, that commercial surrogacy is reaching industry proportions. The
Court declared commercial surrogacy and surrogacy contracts as legal. The
Court stated that, Surrogacy is a well known method of reproduction whereby
a woman agrees to become pregnant for the purpose of gestating and giving
birth to a child she will not raise but hand over to a contracted party.
4

India has emerged as a favoured surrogacy destination primarily for
two reasons (i) affordable high end medical facilities as compared to
developed countries and (ii) absence of governmental regulations.
5
At the
present time, there is no law to govern surrogacy in India with the Assisted
Reproductive Technologies (Regulation) Bill, 2010 still pending in Parliament.
6

The Assisted Reproductive Technologies (Regulation) Bill (hereinafter
referred to as the Bill) was introduced by the Ministry of Health and Family
Welfare in 2010 to codify the use of artificial reproductive technologies in the
wake of legal, ethical, commercial, and technological challenges that existed
within Indias reproductive advancement domain.
Chapter 1 of the Bill captioned Definitions gave expression to the Baby
Manji judgment through section 2(aa) which defines surrogacy as an
arrangement in which a woman agrees to a pregnancy, achieved through
assisted reproductive technology, in which neither of the gametes belong to her

2
Baby Manji Yamada v. Union of India & Another, AIR 2009 SC 84.
3
AIR 2009 SC 84, 9.
4
Id at 5.
5
Indias Surrogate Mother Business Raises Questions of Global Ethics, The Associated Press, Dec 30,
2007.
6
Ghulam Nabi Azad, Surrogacy Bill in the Offing, Indian Express, Apr 11, 2013.

145
or her husband, with the intention to carry it and hand over the child to the
person or persons for whom she is acting as a surrogate. Using this as the
starting point, the following section will examine the flaws in the Bill. It will
attempt to address the implications the Bill has on the rights and duties of the
parties involved, the health of the surrogate, questions of bodily autonomy and
its client centric tendency.
II. INHERENT LOOPHOLES IN THE BILL
A. RIGHTS AND DUTIES
Integral to and in connection with the definition clause are the rights
and duties of the parties involved in relation to surrogacy. Section 34 of the Bill
under Chapter VII discusses rights and duties of patients, donors, surrogates
and children. Clause (13) of section 34 states a surrogate mother shall not act
as an oocyte donor for the couple or individual, as the case may be, seeking
surrogacy. It essentially signifies that the surrogate cannot act as the biological
mother of the child. This in turn implies that most surrogacy arrangements
would take place with a woman who would definitely have to relinquish the
child. Since the surrogate would have no choice in the matter of
relinquishment, the only-surrogate and not-donor specification underpins the
acceptance of commercial surrogacy.
However, section 34(18) is an exception, which makes room for a
relative of the commissioning parents to serve as the surrogate mother, and
thus extends its purview to include altruistic surrogacy. It states that a person,
known or unknown to the couple, can act as a surrogate provided that in case
of a relative acting as surrogate, she should belong to the same generation as
the women desiring the surrogate. The issue arises in ascertaining if at all there
is a departure from the usual course of procedure in case of a relative
volunteering as a surrogate. The Bill fails to mention the terms and conditions
of such agreement and if at all; the participation of a relative as a surrogate is
subject to the same regulation as that of commercial gestational surrogacy.
Hence it leaves these aspects to the whims and fancies of the commissioning
parents.
B. HEALTH
Section 34(5) of the Bill states no woman shall act as a surrogate for
more than five successful live births in her life, including her own children.

146
This provision is rendered inadequate by the insertion of the word live. This
word overlooks a critical aspect to the surrogates health i.e., the number of
permitted cycles she can undergo. The number of live births is not equivalent to
the number of ART cycles the surrogate undergoes, as the success rate of the
procedure is low. Thus, in order to effectually ensure that this
commercialisation of manufacturing anothers offspring doesnt lead to
exploitation of the surrogates health, the maximum number of ART cycles
permitted ought to have been specified in the Bill.
The Bill leaves out yet another important aspect i.e., breastfeeding.
Breastfeeding carries tremendous health benefits both for the child and the
mother. A study conducted by the World Health Organisation shows that
babies who are fed breast milk have a lower risk of gastro-intestinal illness,
allergies, diabetes, chest infections, SIDs (cot death). It is argued that a womans
right to breastfeed her child is a human right apart from the obvious and
immense health benefits. It assists the uterus to return to its pre-pregnant state
faster and reduces the risk of ovarian cancer, osteoporosis, and gestational
diabetes and also helps to lose weight after child-birth. The Bill fails to mention
the period for which the new born is to be kept with the surrogate if any health
related complication of the baby arises.
The Bill also suffers from the omission of a provision for counselling
of the surrogate in case of any trauma or medical complication post delivery. A
study conducted by Canadian Mental Health Association brings into light that
post-partum depression is one such complication that is experienced by almost
20% of new mothers. Counselling services should be made available not only
for making it easier for a surrogate to part from the child but also to help cope
up with separation pangs after she has relinquished the child. Such needs must
be taken care of by the intending parents as psychological disorders are a part
of the same mutually agreed transaction namely pregnancy.
C. CLIENT CENTRIC
A combined reading of section 34(2) and 34(3) portrays the Bill to be
favouring the client more than the surrogate. Section 34(2) provides that all
expenses related to a pregnancy achieved in furtherance of assisted
reproductive technology till the child is ready to be delivered as per medical
advice to the biological parents shall be borne by the couple or individual
seeking surrogacy. Whereas section 34(3) states, the surrogate mother may

147
also receive monetary compensation from the couple or individual, as the case
may be, for agreeing to act as such surrogate.
The term shall has been employed in section 34(2), thus making it
mandatory for the intending couple to financially protect the surrogate during
the full tenure of surrogacy. On the other hand, the term employed in section
34(3) with respect to monetary compensation is may be and ergo puts the
encumbrance on the surrogate mother to claim it. This not only acts as a
stumbling block in case of enforcement of monetary compensation but also
epitomises the policy makers abdication of his primary role as the defender of
the rights of the citizens in favour of his secondary role as promoter of fertility
tourism. It also raises a question on the benefit of having a legislation that puts
a surrogate in between altruism and commercial without clearly taking a stand.
Most surrogates come from the lower economic and social strata of the
society with little education and limited income earning opportunities. The
cumulative effect of all these factors makes poverty-stricken women in India
prone to economic exploitation by agents working for commissioning parents.
In order to pre-empt them from such abuse and exploitation, a mandatory
provision of independent advocacy for the surrogates to represent their
interests to both the clients (commissioning parents) and the clinician should be
endorsed in the Bill. Independent advocacy would also be an effective remedy
for contract negotiations and medical decision making on the part of the
surrogate. The current Bill fails to address any of these concerns and thus,
undermines the role of the surrogate.
The Bill in section 34(24) mentions that the commissioning parents
shall ensure that the surrogate mother and the child she delivers are
appropriately insured. Insurance is indeed indispensable but the insertion of
the word appropriate is not sufficiently lucid and thus leaves scope for
possible misuse of this provision which is detrimental to the interest of the
surrogate. Hence, the language of the Bill needs elaboration on the nature and
extent of insurance that should be provided.
D. BODILY AUTONOMY
The Bill in section 23(5) seizes the surrogates rights of bodily
autonomy to choose her own reproductive rights and places the power to
decide in the hands of the commissioning parents. It states Where a multiple
pregnancy occurs as a result of assisted reproductive technology, the concerned

148
assisted reproductive technology clinic shall inform the patient immediately of
the multiple pregnancy and its medical implications and may carry out foetal
reduction after appropriate counselling. This section seems to be in conflict
with the judgment given in Suchita Srivastava v. Chandigarh Administration
7
, where
it was held the womans right to make reproductive choices is also a
dimension of personal liberty as understood under Article 21 of the
Constitution of India. Reproductive choices can be exercised to procreate as
well as to abstain from procreating. Further, in B.K. Parthasarthi v. Government
of Andhra Pradesh
8
, the High Court upheld the right of reproductive autonomy
of an individual as a facet of his right to privacy.
The Committee on Ethics of the American College of Obstetricians and
Gynaecologists
9
stated in the Committee Opinion multi-foetal pregnancies
increase the risk of both maternal and neonatal morbidity and mortality.
Maternal risk of multi-foetal pregnancies includes hypertension, preeclampsia,
gestational diabetes and postpartum haemorrhage. A womans right to control
her body far outweighs others right to have the kind and number of children
they want and also such maternal risk cannot be looked upon as an
occupational hazard. Thus, the Bill has failed considerably to protect the rights
and welfare of those women who are the bedrock upon which the assisted
reproductive technology industry is built. All major decisions relating to the
foetus as well as the gestating mother, including necessary abortion during the
full tenure of the pregnancy, should be the sole discretion of the surrogate and
not be subject to the wishes of the intending couple. Due to fallacy in the
language of the current Bill, the surrogates service shifts from the voluntarism
of the surrogates womb to the complete temporary rental of her body, thereby
depriving the surrogate of her fundamental reproductive rights.
In the domain of surrogacy, reproductive autonomy of the surrogate
holds paramount significance, the negation of which would tantamount to
subjugation, oppression and exploitation of the surrogate. Unfortunately, the
western liberal feminist perspective of considering surrogacy as an exercise of
reproductive choice and economic autonomy doesnt apply to Indian

7
AIR 2010 SC 235.
8
AIR 2000 A.P.156.
9
American College of Obstetricians and Gynecologists, Multifetal Pregnancy Reduction, Committee
Opinion No. 553, (Feb 2013), available at
https://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on
_Ethics/Multifetal_Pregnancy_Reduction.

149
surrogates. The existence of choice on part of these women is highly disputable
owing to the socio economic conditions which determine their choice. It is
argued that their freedom of choice is often eclipsed by poverty, low education
levels, marginalisation in labour markets and patriarchal social and family
structure and hence, their freedom of choice is socially and economically
constructed. Moreover, the prevalence of the patrilineal descent
10
as well as
patrilocal residence
11
, and the scourge of the dowry system can make a woman
vulnerable to forced surrogacy by a mother-in-law or husband
12
. In such social
conditions, there may exist a situation where the consent obtained from the
surrogate may not be consent in the true sense of the word. Though the
provisions of the Indian Contract Act, 1872 may apply in such situations, the
need for the Bill itself to provide for a consent mechanism to examine if the
consent obtained is true, bona fide, free and out of ones own volition is
essential and cannot be ignored. Thus, legalising commercial gestational
surrogacy as intended by the Bill without mechanisms from within the Bill that
protect the rights of the surrogate actively is likely to leave much room for
adverse interpretation and abuse.
III. CONCLUSION
The Assisted Reproductive Technologies Bill intends to legalise
commercial surrogacy. However, the worldwide discourse on the ethical and
moral facets seems to have been ignored. The Bill also rejects the
recommendations of the Law Commission in its 228th Report
13
, which is
incidentally titled, Need for Legislation to Regulate Assisted Reproductive
Technology Clinics As well As Rights and Obligations of Parties to a
Surrogacy. The said Report had recommended banning commercial surrogacy
while accepting altruistic surrogacy in India. There exists a need to redefine and
restructure the Bill in order to balance the risks and benefits of surrogacy. On
one hand, while banning surrogacy completely on vague moral grounds would
be futile, on the other hand, legalising commercial surrogacy is also not free

10
Unilineal descent that follows the male line also known as agnatic descent.
11
The residence pattern in which a newly married couple moves in with or near the grooms
fathers house.
12
Aastha Sharma, Surrogacy: Laws Labour Lost, The Hindu, July 25, 2010.
13
LAW COMMISSION OF INDIA, NEED FOR LEGISLATION TO REGULATE ASSISTED
REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES
TO A SURROGACY, NUMBER 228, (Aug 5, 2009) available at
http://lawcommissionofindia.nic.in/ reports/report228.pdf.

150
from questionable ends. Since surrogacy is a complex concept, the law must be
equally comprehensive in defending human liberty and facilitating realisation of
positive entitlements. Due to the involvement of commerce in most surrogacy
arrangements, the role of a surrogate is not only an extremely crucial one but it
is also immensely vulnerable to pressure and duress.
The entire burgeoning industry of surrogacy pivots around the
surrogate and her womb. Only when the Indian society enters the era of post-
feminism where equal rights for women means giving women the autonomy to
choose for themselves, can commercial surrogacy be espoused in a truly
egalitarian manner.

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1he paper thereore

At this juncture, the

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