The Penstand Journal Volume 01 Issue 02

VOLUME 01 ISSUE 02 JULY 2016
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JULY 2016
VOLUME 01
ISSUE 02
ISSN 2455-9822 (ONLINE)
ADVISORY BODY
DR. SHARAFAT ALI
MRS. DEVIKA RANA
(PRINCIPAL, SIDDHARTHA LAW COLLEGE, DEHRADUN)
(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE,

DEHRADUN)
MRS. REETA RAUTELA

(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE,
DEHRADUN)
MR. MOHIT NEGI

(ADVOCATE, DEHRADUN DISTRICT COURT)
EDITORIAL BOARD
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MR. AVISHEK PRADHAN
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THE PENSTAND COMMUNICATIONS
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Cite this issue as 02 TPJ (2016)

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THE PENSTAND JOURNAL
IN THIS ISSUE
Vision behind the Journal
Pg. 07
Message from the Members of the Advisory body
Pg. 08
Message from the Desk of the Editor-in-chief
Pg. 09
JOURNAL
BOOK REVIEW
1. A LEGAL ANALYSIS OF THE MERCHANT OF VENICE- HARSH MAHASETH
CITE AS: B3 02 TPJ (2016)
Pg.10
2. PRIOR CONSENT TO INTERNATIONAL DIRECT SATELLITE BROADCASTING- MOUMITA MANDAL

CITE AS: B10 02 TPJ (2016)
Pg.13
CASE STUDY
3. SECURITIES EXCHANGE COMMISSION V. TYCO INTERNATIONAL LIMITED 06 CV 2942- HITENDRA
V.HIREMATH AND SMITA ANGADI
Pg.16
PERSON OF INTEREST
4. HONBLE MR. JUSTICE T.S. THAKUR (TEERATH SINGH THAKUR)
CITE AS: B11 02 TPJ (2016)
Pg.20
ARTICLES
5. THE CONCEPT OF RATIO DECIDENDI AND OBITER DICTA: A DETAILED STUDY- ABHIGYAN
MAHARISHI
CITE AS: A2 02 TPJ (2016)
Pg.23
6. WOMEN ENTREPRENEURS- CHALLENGES AND SOLUTIONS WITH FOCUS ON SMEs- ABHIJEET

KUMAR PANDEY
Pg.29
7. JUVENILE JUSTICE- A WEAK LINK IN OUR CRIMINAL JUSTICE SYSTEM- ABHINAV MISHRA
Pg.39
8. THE TRIBUNALIZATION OF ENVIRONMENTAL JUSTICE AND THE NATIONAL GREEN TRIBUNAL OF

INDIA- BISWAROOP MUKHERJEE
Pg.46
9. ANALYSIS OF THE DRAFT CIGARETTES AND OTHER TOBACCO PRODUCTS (PROHIBITION OF

ADVERTISEMENTS AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY AND
DISTRIBUTION) (AMENDMENT) BILL, 2015- AMIT SINGHAL
Pg.53
10. INSTANT DIVORCE IN INDIAN SOCIETY- ANKIT BHANDARI AND ANIMESH BORDOLOI
Pg.60
11. SECTION 498 [A] IPC: VICTIM TURNING INTO THE ABUSER- ANKITA ASERI
Pg.68
12. HOW STRICTLY SHOULD A TAX STATUTE BE INTERPRETED? - ANUSHKA MITTAL

Pg.75
13. THE PRECARIOUS SHACKLES OF PERSONAL LAWS IN INDIA AND THE EMINENT NEED FOR
UNIFORMITY- ASTHA SATAPATHY AND SUBRATA SATAPATHY
CITE AS: A13 02 TPJ (2016)
Pg.85
14. JUDICIAL FUNCTION BY SUPREME COURT WITH RESPECT TO ARTICLE 142 OF THE
CONSTITUTION OF INDIA- DIVYA SINGH AND ABHISHEK TRIPATHI
CITE AS: A19 02 TPJ (2016)
Pg.94
15. OFFICE IN THE CLOUDS & DATA PROTECTION: REGULATION OF THE CLOUD IN INDIA- GAURAV
HOODA
CITE AS: A22 02 TPJ (2016)
Pg.102
16. BRINGING DOWN THE WALL: TRANSGENDER RIGHTS IN INDIA FROM A LEGAL PERSPECTIVEMADHUR JHAVAR AND HARDIK GAUTAM
Pg.111
17. GROSS NATIONAL HAPPINESS (GNH) IN BHUTAN: HAPPINESS IS THE NEW PROSPERITY
PARAMETER- MAYANK SAMUEL
Pg.118
18. PROVISIONS RELATED TO SEDITION IN INDIA NEED AMENDMENT- NEETI RANA

CITE AS: B12 02 TPJ (2016)
Pg.130
19. INTERNATIONAL MECHANISM FOR THE INFORCEMENT OF HUMAN RIGHTS- PRAKASH KHINCHI
AND PRIYAL BOHRA
CITE AS: B16 02 TPJ (2016)
Pg.138
20. ANALYSING STATELESSNESS AND ITS INDIAN PERSPECTIVE: AN ALMOST UNEXPLORED

HUMAN ENIGMA- PRASHNA SAMADDAR
CITE AS: B20 02 TPJ (2016)
Pg.149
21. SCHEDULED CASTES FINDING SOCIAL AND GENDER DISPARITY- PRIYAM JAIN AND PRANJAL
JAIN
CITE AS: B21 02 TPJ (2016)
Pg.157
22. DOCTRINE OF PLEASURE AND PROTECTION TO CIVIL SERVANTS IN INDIA: A CRITICAL

ANALYSIS- MR. AMIT DHALL AND MR. RAJNISH JINDAL
CITE AS: C2 02 TPJ (2016)
Pg.167
23. NATURAL JUSTICE AND ADMINISTRATIVE LAW- RATNESH DWIVEDI

Pg.175
24. CRITICAL COMMENT ON THE CRIMINAL LAW AMENDMENT ACT 2013- ROMA BHOJANI
Pg.190
25. LAW AND SOCIAL CHANGE: AN INDIAN PERSPECTIVE- KAHKASHAN JABIN AND SHREET RAJ
JAISWAL
CITE AS: C10 02 TPJ (2016)
Pg.196
26. ENVIRONMENTAL POLLUTION AND ENVIRONMENTAL LAW IN ACTION- SHRIYA BADGAIYAN

CITE AS: C11 02 TPJ (2016)
Pg.204
27. CHALLENGES OF INDIAN PATENT REGIME: ANALYSIS OF PHARMACEUTICAL INDUSTRYSIDDHARTH BADKUL AND PRASHANT KUMAR
CITE AS: C13 02 TPJ (2016)
Pg.212
28. AN ANALYSIS OF MONEY BILL IN INDIAN CONSTITUTION- SHUBHANG GOMASTA

CITE AS: C15 02 TPJ (2016)
Pg.223
29. JUDICIAL ATTITUDE TOWARDS EUTHANASIA- PARADOXES AND DILEMMAS- TEJASV ANAND
CITE AS: C18 02 TPJ (2016)
Pg.237
30. THE DEVELOPMENT OF CORPORATE CRIMINAL LIABILITY IN INDIA: A CASE BY CASE ANALYSISYASH KARUNAKARAN
CITE AS: C22 02 TPJ (2016)
Pg.245
VISION BEHIND THE JOURNAL

The Penstand Journal was started with the vision to make online publishing available for all Legal
professional without any financial constraint. What we believe is that money should not be the ground
a person gives up on his writing talent. So if you can write well, well publish it for you.
We endeavour to handpick quality work from different areas of law and make your reading experience
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As of now we are only accepting work related to Law and social science.
MESSAGE FROM THE MEMBERS OF THE ADVISORY BODY

We feel honored and deeply privileged to say that the second issue of The Penstand Journal is
finally out. We congratulate all of the members of the Editorial board who have toiled night and day
to make this issue a success. We wish all the luck to The Penstand Journal for its bright future in the
Legal fraternity.
DR. SHARAFAT ALI
(PRINCIPAL, SIDDHARTHA LAW COLLEGE, DEHRADUN)
MRS. REETA RAUTELA
(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE, DEHRADUN)
MRS. DEVIKA RANA
(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE, DEHRADUN)
MR. MOHIT NEGI
(ADVOCATE, DEHRADUN DISTRICT COURT)
MESSAGE FROM THE DESK OF THE EDITOR-IN-CHIEF

I remember writing for the first issue and surely time does fly. I feel proud bringing to you the
second issue of The Penstand Journal in volume one. Firstly, I would like to congratulate all the
contributors who made it to the Journal and thank all those who did contribute but did not make it
here. There is always a second time. Speaking about contributions, we received more than whopping
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hard work and toil is in front of you.
This issue comprises of the top 30 submissions which we have handpicked for you which are of the
top-most quality.
Secondly, I would like to thank our media partners- Lawctopus, Law Updater and Knowledge Steez for
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Mr. Avishek Pradhan

Founder & Editor-in-Chief
The Penstand Journal
JOURNAL
B
O
O
K
A LEGAL ANALYSIS OF THE MERCHANT OF VENICE

WILLIAM SHAKESPEARE
HARSH MAHASETH
NALSAR UNIVERSITY OF LAW, HYDERABAD, INDIA
R
E
V
I
E
W
The Merchant of Venice is a Shakespearean play which revolves

around a loan taken by a Venetian Christian merchant, Antonio, from a
Jewish money-lender, Shylock. A conditional agreement was made
between both of them that Shylock was to extract a pound of Antonios flesh
which is closest to his heart if he is unsuccessful in returning the loan
amount on time. Antonio accepts this condition as his ships were to arrive
on Venices docks before the deadline. Unfortunately the ships do not arrive
on time and upon the default of the loan Shylock enforces the penalty bond.
The story revolves around this issue and the proceedings brought in front of the Duke
of Venice. This book was intended to be a comedy which fed into the majoritarian
prejudices; however with time more subversive readings of the book were taken into
account and Shylocks character came to be seen as the guy done wrong to rather
than the villain.
The play takes place in commercial Venice where international trade is the
heart and blood of the city. The city is seen as a strict follower of the law. However,
the Duke of Venice was hesitant to enforce the penalty bond which was going against
the heart and blood of the city.
It must not be. There is no power in Venice
Can alter a decree established.
'Twill be recorded as precedent,
And many an error by the same example
Will rush into the state. It cannot be.1
Also the depiction of the civil proceedings did not capture the reality as such penalty
bonds were not contracted; they normally had attachment of assets. Such a penalty
bond could be seen as an anomaly. Also a lack of formal legal representation was
seen as there was no legal representation and there was no formal judge. The Duke
of Venice played both the Executive and Judicial role. Antonio is taken to trial where
even the Duke of Venice could not help Antonio from his arrangement by the codified
law.
Shylock refused to take double the amount of the loan as equity for redemption
from Bassanio, Antonios friend, for breaching the contract. There could be 3 reasons
for this:
1WILLIAM
SHAKESPEARE, THE MERCHANT OF VENICE, Act 4, Scene 1 (Jay L.Halioed, 1994).
10
(i)
(ii)
(iii)
Shylock seeking revenge against Antonio who had publicly humiliated him
repeatedly;
Shylock could have possibly been angry against Christians as his daughter,
Jessica, had ran away not too long ago with a Christian, and;
An element of commercial rivalry: Antonio was also a moneylender but he
gave out loans without any interest and so Shylock saw this as an easy
method of removing competition.
At this juncture of the play we see Portia, Bossanios wife, arrive at the court in the
disguise of a male lawyer. She concedes that Shylock is entitled to a pound of flesh
however he may exactly have one pound of flesh, no more or less, and that too without
dropping a single drop of Antonios blood. Eventually Shylock realizes that it is
impossible to do such a thing and so he tries to accept three times the money that was
offered; however Portia refuses. She interprets the penalty bond as an attack on a
Venetian citizen under the Alien Statute and in turn Shylock is shown as the
perpetrator. In the end it was held that Shylock had attempted to murder a Venetian
citizen and so he was forced to convert to Christianity and also give away half of his
property to his daughter Jessica who had eloped with a Christian. In the story it is seen
that the judgment went in favor of a small technicality however such is not seen in real
life. This helps us understand the idea of how a lawyer is depicted in literature.
An important theme of the play is the theme of hatred and discrimination. The
society is predominantly a Christian society with a minority of Jews. The Jews are
subjected to incidents of hatred regularly. An example would be Antonio spitting on
Shylock. Antonio had made it a habit of doing incidents such as public defamation that
even he was surprised when he saw that Shylock had so much hatred towards him
and was persistent on him honoring the bond. While enforcing the penalty bond
Shylock was the un-ideal victim as he was a money lending Jew while Antonio was
seen as the un-ideal perpetrator as he was a kind-hearted Christian who served for
the society. Later on after Shylock was blamed for the attempt to murder Antonio, he
was the ideal perpetrator while Antonio was the ideal victim. This story has been seen
to feed into the personal biases of the viewers, during the time this was written, as the
larger community looked at a small community, such as the Jews, and demonized
them.
This book also represents the different ideas of Justice. A distinction between
the retributive motive of the Jews and the mercy of the Christians can be seen.
Judaism is inherently associated with retribution. This book shows a clear portrayal of
a Jewish character who wanted the enforcement of the penalty bond which would have
led to the death of Antonio. The play is simply a Jew applying the lessons that he was
taught by the Christians. His entire plan to make such an agreement came out of the
hatred and insults that he had borne throughout the years from the Christians. Upon
questioning the use of the pound of flesh and what use it will be Shylock responds with
The villainy you teach me I will execute, and it shall go hard but I will better the
instruction2
The Christian attitude of mercy can also be seen as the ending the conflict by
starving it of the injustices it needs to continue. Shylock was let off after he converted
to Christianity and paid damages. The Christian approach is to use law as the tool of
2Supra
1 at Act 3, Scene 1.
11
mercy, not revenge. However when we see Antonio criticizing Shylock for practicing
usury we see that Jews were actually barred from other professions. Hence, Shylock
was actually pushed into practicing usury to earn a living while Antonio only lent money
as one of his acts of kindness while he also had another profession. In doing so the
penalty bond makes more sense, from Shylocks perspective, as the element of
commercial rivalry can be seen. Shylocks livelihood depends upon the loans he gives
and Antonios loans without any interests has proved to be a challenge to Shylock.
When we see the link between Shakespearean plays and the law we see a
deep relation between the two. We see the prejudices of living under a dominant moral
code where there are injustices rooted deep within the exercise of law. The injustices
of law is seen as Shylock was deprived of his justice while following the law and was
instead punished. We also see that desire is a human weakness which is ubiquitous:
it is everywhere, inside everyone. Shylock had the desire to exact his revenge while
Portia had the desire to save Antonio and they were willing to do anything for it.
Shakespearean plays allow the readers to tie up the humanist and narrative strands
of the law and literature theory which has revealed a disparity among the different
groups in society and the way the law is applied. Readers become aware of the
structural inequalities in the legal system and are left with the feeling of something still
missing in the Justice process.
12
PRIOR CONSENT TO INTERNATIONAL DIRECT SATELLITE

BROADCASTING
BY DAVID I. FISHER
ISBN 0-7923-0692-9
Year of Publication 1990
Martinus Nijhoff Publishers: London
MOUMITA MANDAL
CENTRE FOR INTERNATIONAL LEGAL STUDIES, JAWAHARLAL NEHRU
UNIVERSITY, NEW DELHI, INDIA.
The author has focused on the emergence of international legal instruments

regarding international direct satellite broadcasting (DSB) and perceptions of States
on DBS. This book has been divided into three chapters. The first chapter has
focused on the States perceptions on DBS and this chapter has shown that the world
has been divided into three parts as the opinions of the Western nations, the opinions
of East bloc states and the opinions of developing countries. The second chapter
deals with international legal development regarding DBS. And the third chapter
explains the standing of prior consent under the principles of state sovereignly and
freedom of information.
This paragraph will discuss the brief summary of this book as- telecommunication
satellite is the source of television transmissions. The first generation
telecommunication satellite was known as Fixed Satellite Service (FSS) and it was
transmitted signals of T.V program between two earth stations situated at specified
fixed points on the globe. This first generation telecommunication satellite was
emerged before 1980. After 1980, with the development of technology new
telecommunication technology has been come into existence which is known as
DBS (Direct Broadcasting Satellite). This development is also known as second
generation telecommunication satellite. By this DBS directly transmit signals to the
consumers without going through any earthly station. There is no filtering process
of the signals transmitted by DBS. This new technology is helpful for the consumers
as well as the broadcasting firms but it is not free from problems. This DBS is
problematic for the sovereignty of States because the nature of DBS is such that its
signals spillover and reach the area of outside its limit. So, the signals send by DBS
service is reached to the consumers or nations of other State without the permission
of that State and it infringes the domestic rights of that State. There is no such
developed technology which can control DBS so, States use a counter satellite
signals to stop DBS which is known as jamming but it is harmful for DBS. As
frequently States use this jamming to stop DBS of a foreign State but jamming is
not globally and legally binding.
The lack of any effective technical means of regulating the inflows of foreign satellite
broadcasts has eventually resulted in an interest on the part of most government to
elaborate an international regal regime to govern DBS activities. The first attempt
was taken formally by the United Nations Generally as early as the 1960 and it was
based on the principle of prior consent. This principle was the main reason of the
13
division of the perceptions of the world community. The principle of prior consent
is based on State sovereignty, non-intervention in domestic affairs and prevention
of cultural integrity. The East bloc and developing nations supported this principle
of prior consent but USA and other Western States have rejected to accept this
principle. They claimed that principle of free consent is in contrary to freedom of
information. Sweden and Canada have supported the middle approach. They seek
balance between the two principles by creating a regime based on consent to the
broadcasts of regional DBS systems rather than to individual broadcasts. In the
next chapter the author has been tried to show the international legal instruments
which are directly or indirectly applicable for DBS. Though there is no such hard
international law on SBS but the existing international law and soft law instruments
are applicable on DBS regime. According to the international legal instruments are
as follows: Outer Space Treaty 1967: This treaty does not directly deal with DBS
but it provides certain principles for the States to use and explore outer space. This
treaty has specifically cleared that States are free to explore and use outer space
but it should be for the benefit and interest of all mankind. Liability Convention: this
convention imposes responsibility on the States for their outer space activities but
it is not clear that whether this convention is applicable to nonmaterial damaged
caused by the DBS service. DBS Principles Declaration of 1982: this international
instrument is a soft law instrument. This instrument provides certain principles for
the DBS.
Satellite Declaration of UNESCO 1972: This declaration deals with some significant
issues relating to DBS and provides that there should be equal free flow of satellite
broadcasting but it should be based on the principle of prior consent. This
declaration also included the principles of human rights, United Nations Charter and
Law of the sea that is the common heritage of mankind.
International Conferences (WARC-ST 1971 and WARC-BS 1977): some
regulations adopted at those conferences but those were based on technical factors
only and those cannot be treated as independent legal norms regarding DBS.
There were proposals of different States before Outer Space Committee for the
establishment of an international organization which will be responsible for DBS. In
1968 the General Assembly adopted Resolution 2453 B (XXIII) and approved for
the establishment of BDS Working Group by the Outer Space Committee. The first
session of the DBS was held in 1969. This BDS Working Group reaffirmed the
applicability of United Nations Charter 1945, Outer Space Treaty 1967, Universal
Declaration of Human Rights 1948 regarding DSB.
The author has stated that different States have been supported different
approached regarding emergence of international norms on DBS. Some States
supported for the binding international norms but some States provided domestic
legislation etc.
There are some States (Canada and Sweden) which supported for the
establishment of regional system under the preview of Outer Space Treaty. And
this proposal is not universal in nature. The author has discussed about the different
approaches of State sovereignty, prior consent, and freedom of information and
compatibility of prior consent with freedom of information. During discussion the
author has shown that absolute freedom of information is in contrary to sovereignty
of States and also threat to its culture, morality, welfare of the people etc. so, the
14
only way of balancing the situation is the prior consent. And it is also the right of the
State to allow or disallow the foreign signals to broadcast its program.
Though the book is on DBS but the author has not defined DBS. This book has
given very good basic idea of DBS. But the author has not been specifically
discussed the international legal instruments which are applicable DBS. Though the
author discussed certain international norms which are directly or indirectly link with
DBS but those international laws are not discussed clearly whether States are able
to implement its domestic law to regulate foreign DBS? In the last three chapters
the author has discussed the basic approaches of State sovereignty, prior consent
and freedom of information but these principles are not discussed in accordance
with the existing public international laws including customary international laws. All
over the conclusion is that though the international legal instruments has been
discussed regarding DBS but the author has filed to show the whether existing
customary international laws are also applicable for DBS or not?
Existing Legal Regime Regarding Direct Satellite Broadcasting (DSB) with
conclusion:
There were two initiatives of United Nations regarding DBS as foundations. The first
one was the 1971 Technical Restrictions of International Direct Television
Broadcasting (Radio Regulation 428A) and it was adopted by the World
Administrative Radio Conference. The main aim of this instrument was regulation
of broad casting problems and the coordination of States regarding radio
frequencies through registration. After that UNESCO (United Nations Educational,
Scientific and Cultural Organization) adopted Declaration on the Use of Satellite
Broadcasting to govern satellite broadcasting. Working group of the COPUOS
Legal Subcommittee was established to look after the proposals of different
member States for enacting international convention on DSB. After that the
Principles Governing the Use by States of Artificial Earth Satellite for International
Direct Television Broadcasting was adopted by the General Assembly in 19823. As
of now there are only these soft laws are governing the DSB regime. There is
another international institution that is the ITU (International Telecommunication
Union) which is the specialized agency of United Nations. It deals with information
and communication technology. ITU has 193 member States and almost 800
private sector entities and academic institutions. It creates international cooperation
among states and private entities.4
So, as of now only these much of development of DSB has been done under the
umbrella of United Nations. There is no such specific international convention
regarding DBS. The minimum powerful States are controlling the technical as well
as legal regime of DSB.
United Nations, A BRIEF OVERVIEW OF NORMS DEVELOPMENT IN OUTER SPACE, UNITED

NATIONS INSTITUTE FOR DISARMAMENT RESEARCH,[Online web] Accessed 30th March, 2016,
URL: http://www.unidir.org/files/publications/pdfs/a-brief-overview-of-norms-development-in-outerspace-en-462.pdf
4 ITU, [Online web] Accessed 30th March, 2016, URL: http://www.itu.int/en/about
15
C
A
S
E
SCAMS ONE OF REASONS FOR FRAMING EFFECTIVE

LEGISLATIONS
Case Analysis
Securities Exchange Commission
V.
S
T
U
D
Y
Tyco International Limited

06 CV 2942
HITENDRA V.HIREMATH
COUNSEL AT SHRIRAM PROPERTIES PRIVATE LIMITED,
BANGALORE, KARNATAKA, INDIA
SMITA ANGADI
KARNATAKA STATE LAW UNIVERSITYS LAW SCHOOL, NAVANAGAR,

HUBLI, KARNATAKA
Abstract
Scams led United States of America to think towards its existing regulations for
functioning of the Companies, amongst them Tyco was one of the scams that has
shaken the United States market, loopholes in the existing laws were used and
violations were made by Company by not disclosing its actual financial status. Tyco is
one of the scams that made United States of America to pass Sarbanes Oxley Act,
2002, now regarded as one of the finest legislation which led other countries to frame
their legislations in accordance with provisions of Sarbanes Oxley Act, 2002, the
reason of discussing this case law is India now stands into that stage which the United
States of America did at one point of time, scams are used as models while framing
the legislations, however, now Companies Act, 2013 cover most of the provisions
making companies to be accountable.
Brief Facts
Case was filed by Securities Exchange Commission5 against Tyco International
Limited and against the key executives of Tyco CEO L. Dennis Kozlowski, former CFO
Mark H. Swartz and former Chief Corporate Counsel Mark A. Belnick at United States
District Court Southern District of New York and interesting part is Defendant Tyco
filed its consent statement stating without admitting or denying the allegations of the
Complaint, Defendant hereby consents to the entry of Final Judgment6, following are
the brief facts and allegations as set against Tyco:
A. Tyco is a diversified manufacturing and service company involved in the fire
protection and safety systems headquartered at Bermuda.
5
Hereinafter SEC
2 of Consent Statement of Defendant Tyco International Ltd filed before United States District
Court Southern District of New York on 03rd of October, 2005.
6Para
16
B. Kozlowski joined Tyco in 1975 and by 1997 he was chairman of the Board,
President and CEO of Company, and Swartz became CFO, Executive VicePresident and Director. All the key executives were sued for violations of aiding
and abetting violations of the antifraud, proxy statement, periodic reporting and
corporate record keeping provisions of the federal securities laws. Key executives
were found guilty of 22 counts out of 23 alleged. In between 1996 to 2002, under
Kozlowski, Tyco acquired more than 700 companies, it pursued an aggressive
strategy and continual earning growth, due to which company had 1000 business
lines under various operating divisions.
C. Tycos corporate structure was highly decentralized during this period and many of
its business units had its own financial statements and internal earnings before
interest and taxes7, (EBIT is operating income); whoever met EBIT used to receive
the bonuses. So in order to meet the EBIT various Tyco business units and
reporting level used improper accounting practices in order to increase the EBIT.
D. Improper Acquisition Accounting:
Financial reports were altered in order to make the value of the acquired assets
increase. Managers were asked to make improper adjustments prior to their
acquisition by Tyco, so it resulted in overstatement of Tycos earnings which were
reported to Commission and investing public. So before acquisitions due to false
statements the target companies used to be underrated and after the acquisition
the financial statements were overrated in order to show that the company was
actually benefited by the acquisition.
Understating helped the company earnings, i.e., long lived assets, depreciation
expense for current assets by Tyco to record the larger profits as assets were
utilized. Few companies overstated their assets and understated the liabilities on
the advice of Tyco. For example, Thorn-EMI and Holmes. Established purchase
accounting reserves which was against the principles of generally accepted
accounting principles (GAAP)
E. Use of Reserves
Money reserved for certain specific purpose was used to be turned in order to
achieve the targets as in operating incomes are overstated, which resulted
increase in the reserves.
F. Proxy State Disclosure Violations:
Tyco failed to disclose in Annual Reports and Form 10K (which need to be
submitted to SEC). Executive compensation, related party transactions of former
executives Kozlowski, Swartz and Belnick. Executive Compensation and
Executive debts involved loans made under Key Employee Loan Program 8 and its
relocation loan programs. From KELP Kozlowski and Swartz borrowed certain
money which was not meant for any purpose. Approximately $270 million was
borrowed by Kozlowski and $99 million by Swartz.
G. Relocation Loan:
To buy homes to the employees, again this program was misused by Kozlowski
and Swartz and they borrowed $18 million and $17 million respectively. Although
they were aware their spending was inconsistent. Even company did not disclose
these to investors in Annual Report and in Form 10K and proxy statements filed
with the commission. Tyco loan programmes were forgiven and the beneficiaries
7
8
Hereinafter EBIT
Hereinafter KELP
17
were Kozlowski and Swartz. Tyco was under obligation to disclose all these
transactions to its investors and commission but it never disclosed.
H. Unlawful payments to foreign officials:
Mails were found by the executive and agents to make the payments of money or
things of value to foreign officials to obtain or retain business for Tyco. False
records were made in order to conceal this. Company after acquiring a South
Korean company Dong-Bang asked them to create the fictitious employees in its
books to finance these things.
I. False filing and Statements
From 1996 till 2002 false reports were made to the commission.
Holding:
Charges held on guilty for: Court held the company for the following violations:
J. Under Section. 10(b) of Securities Exchange Act, 1934 and Exchange Rule 10 b5: To employ any device, to make any untrue statement of material fact to mislead
and not to engage in course of business which can operate as fraud.
K. Section. 17(a) of Securities Act, 1933 Sale of any security, through any mails or
etc which can operate as fraud or deceit to purchases.
L. Section. 13(a) of Securities Exchange Act, 1934 and Exchange Act Rules 12b-20;
13a-1 and 13a-13: Company was permanently restrained from filing the wrong
statements.
M. Section 13(b) (2) (A) and (b) (2) (B) - Rule 13 (b) (2)-(1) - Restrained from making
false entries to the books. Accounting principles to be generally accepted
principles; accountability of assets with management general or specific
authorization and falsifying any book, record or account subject matter
N. Section.30A (a) of Exchange Act: restrained from making any offers in the form of
gift/money to any foreign officials.
O. Civil penalty of $50 million - Under Section 20(d) of Securities Act, 1934; Section
21(d) (3) and 32(c) (1) (13) of Exchange Act. This imposed penalty imposed was
used to pay the taxes.
Analysis:
The violations were also against the recognized principles given by Organization for
Economic Co-Operation and Development9 for Companies; these violations are
discussed as follows:
A. PRINCIPLES OF OECD CORPORATE GOVERNANCE:
OECD sets principle on Corporate Governance for functioning of Company10, as
accepted globally; Countries tend to adopt the principles in their legislations, so
following are the principles that are laid:
9Hereinafter
OECD
OECD Principles of Corporate Governance, (Paris: OECD Publications Service), 2004.
Available at http://www.oecd.org/corporate/ca/corporategovernanceprinciples/31557724.pdf, Last
Visited on 04th March, 2016 at 11:54 am
10OECD,
18
Ensuring basis for an effective corporate governance framework11: It is necessary that

there should be division of responsibilities among different heads of company and also
the state.
Even the state kept quiet for nearly 15 years without making any efforts to check the
actual status of the company, on the prima facie it can be easily detected that company
was involved in the frauds. So lack of effective regulations prevailed at that point of
time in United States of America.
B. RIGHTS OF SHAREHOLDERS12:
Shareholders have every right to know the actual status of the company, company by
false annual reports kept the shareholders in dark.
C. DISCLOSURE13:
Accounting standards if are different from the General principles then such practices
need to be mentioned. CEO/CFO should certify financial statements with existing
account standards, and applicable laws and regulations. Financial and Operating
results should be disclosed in the financial reports, further, related party transactions
need to be disclosed to the shareholders and authorities, but here even false reports
were made.
Effect:
United States of America passed a new legislation Sarbanes Oxley Act, 2002, wherein
new disclosures were made mandatory and penalty clauses were introduced in order
to make the Company as well the key executives to be liable. Following are the key
inclusions:
A. Section 40214 now prohibits personal loans to executives
B. Sec.13 (b) of Securities Exchange Act, 1934 is been amended and Securities
Exchange Board now to determine the accounting standards and every company
must adhere to it. (Section 108)
C. Section 802 Criminal penalties in case of altering documents 20 years
imprisonment or fine or both
D. Section 906 Failure to certify, false certification of financial reports by CFO, then
$10 million fine and 10 years imprisonment or both 906(c)
E. Section 902 - Attempt to commit fraud is also penalized
11Ibid.,
Pg No 17 & 29
Pg No. 18 & 32
13Ibid., Pg No. 22 & 49
14Sec. 402: It shall be unlawful for any issuer (as defined in section 2 of the Sarbanes-Oxley Act of
2002), directly or indirectly, including through any subsidiary, to extend or maintain credit, to arrange
for the extension of credit, or to renew an extension of credit, in the form of a personal loan to or for
any director or executive officer (or equivalent thereof) of that issuer. An extension of credit
maintained by the issuer on the date of enactment of this subsection shall not be subject to the
provisions of this subsection, provided that there is no material modification to any term of any such
extension of credit or any renewal of any such extension of credit on or after that date of enactment
12Ibid.,
19
Conclusion:
Tyco scam made the United States to overlook it existing regulations and legislation,
new techniques were used to commit fraud and altering the financial reports, key
executives must be under suitable review by the Board, key programs must be
checked before introducing by the board as these programs may be introduced to
commit such scam. Corporate Governance plays a very vital role and norms of the
Corporate Governance should keep on changing in evolving society, as stricter the
regulations, new ways are found to escape and commit a scam. Controlling powers
in a Company must be dispersed amongst the Committees, though this shall results
to cumbersome process as interference of more persons may result in slow working
of an organization, however, it benefits the company as it will have more checks.
HONBLE MR. JUSTICE T.S. THAKUR
P
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(TEERATH SINGH THAKUR)

Born on 4th January 1952, Justice T. S. Thakur was elevated to be the 43rd
Chief Justice of India. He previously was chief justice of Delhi High Court.
Since 17thNov. 2009 he has been an acting judge of Supreme Court. Justice
Thakur has been serving Indian legal system, a way back from 1972 were
he was first enrolled as a pleader. He started his carrier under under the
chamber of his father Late Shri Devi Das Thakur.
The oath ceremony of the dynamic personality took place on 18thNov. 2015,
administered by President Pranab Mukherjee.
Destiny has decided no straight road rather full of hurdles for the Judge as
no sooner he was sworn as the CJI and very challenging matters came
forward like:
Polarized intolerance debate, tussle between parliament and judicial
supremacy as to appointment of judge and many more. Thakur unlike his
predecessor who kept themselves away or refused from commenting on
many issues, he like a fearless lion was not hesitant to speak or act which
was required for fulfilment of the duties of a CJI.
There were many instances and incidents where Justice Thakur proved out
that he is different from other Judges and candid in communicating with
media and press.
Being of the year 2016 was amidst the controversy if the odd and even formulae to be
applicable or not. Affirming to AAPs govt. proposal he said:
If a judge of Supreme Court can pool cars (with brother Judges), it sends a message
to the people that we have no problem, he told reporters. We can walk down or even
take a bus.
Justice Thakur by this invited a wrath of self-appointed critic of the judicial system.
These statement was criticized all over.
20
Latter, where the weapon of intolerance was used all over by media and politics to
play of the tornado in the Indian society leading to the many conflicts and violence, he
said:
We are capable of protecting the rights of all sections of the people. It is our
responsibility. Rule of law and constitutional guarantees are enshrined. Rights of
people be it be citizen or non-citizen shall be protected and there is nothing to fear.
The above words soothed the environment of the intolerance and put the same to an
end.
When on being asked by the reporters on bad Judges he said:
We will be intolerant towards deviant behavior and allegations of corruption and
cleanse the institution. The system must react to what is not acceptable. We should
not remain quiet on what is not acceptable.
There are many more instances where a revolutionized mindset of Justice Thakur
could be witnessed. No only on the behalf of above mentioned statements of the man,
but many more it could be aptly said that he is a man of different thinking and he has
his own prism to view society, law and other perspectives.
The above incidents have already brought Justice Thakur under the spot light, but the
incident when he broke down and asked for justice for litigants and judges while
addressing a conference of chief minister and high court judges in presence of the PM
brought out his heart in front of everyone.
Chief Justice of India T.S. Thakur there in sought urgent action to appoint more judges
to resolve millions of pending cases across the country and inspire confidence among
foreign investors that the government is trying to attract.
The Chief Justice, known to be tough on judicial pendency, exhorted the legislature to
rise to the occasion for the development of the country and stressed that the entire
burden of pending cases cannot be shifted to the judiciary.
Thakur added in an emotional speech.
We want people to come and Make in India, we want people to come and invest in
India. But those who we are inviting are also concerned about ability of judicial system
in the country to deal with the cases and disputes that may arise out of such
investments,
Thakur quoting the remarkable capacity of the Indian Judges as a judge in India on an
average handles 2,600 cases a year compared with 81 cases on an average that nine
judges in the US Supreme Court handles every year. Not only is this he said that
pendency has plagued in Indian judicial system and the same because of deficient
number of judges.
The emotional speech at the conference moved the Prime Minister to the extent that
he would try to resolve the issues and invited the chief justice along with some of his
21
colleagues for discussions with the government. Overwhelmed PM went on adding

that:
If Thakur Sahab is comfortable and there are no constitutional limitations, he would
want the government and the CJIs team to sit together, discuss and find solutions to
the problems.
He said in he had said in a choked voice who was seen wiping his eyes on three
occasions while addressing the inaugural session of Joint Conference of Chief
Ministers and Chief Justices of High Courts.
Then comes inaction by the government as the increase (in the strength of judges)
does not take place, therefore, it is not only in the name of a litigant or people
languishing in jails but also in the name of development of the country, its progress
that I beseech you to rise to the occasion and realise that it is not enough to criticise.
You cannot shift the entire burden on the Judiciary,"
These words of Justice Thakur moved people whether associated with law or not to
the depth of their hearts. He eloquently touched the most demanding need of the time
and was praised all around for his sincere efforts to improve and maintain the dignity
of Judiciary.
22
A
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THE CONCEPT OF RATIO DECIDENDI AND OBITER DICTA:

A DETAILED STUDY
ABHIGYAN MAHARISHI
UNIVERSITY OF PETROLEUM AND ENERGY STUDIES,
COLLEGE OF LEGAL STUDIES, DEHRADUN
Abstract
Ratio Decidendi, a term that every lawyer hunts for its clear and precise
meaning. Although it is a difficult task to search for ratio of a case, but those
who succeed in doing so, are supposed to have a good and in depth
knowledge of a case.
Ratio Decidendi, being a Latin phrase means Reason for a Decision. The Blacks
Law Dictionary has defined Ratio Decidendi as- A principal or a rule of law upon which
a courts decision is founded, and indeed in reality this principal or a rule of law that is
being talked about in the above definition picked from the Blacks law dictionary is
none other than- The rule or principal of Precedents. Referring to the term
Precedents, it means an earlier event that sets an example or a basis upon which
the judges base their future decisions. Ratio basically comprises of two things in a
sequence- First being the material facts of a case and second being the subsequent
decision thereon. Being the concept of Ratio Decidendi revolving around the rule and
concept of precedents, the present article would, apart from the parent topic of Ratio
Decidendi, would also be dealing with the concept of Precedents. On the one hand
where, Ratio Decidendi, being binding upon the courts of lower and later jurisdiction
through the doctrine of Stare Decisis, there is another concept called Obiter Dictum
which is not binding on the courts. Obviously, not every part of the judgement would
be binding on the courts, but the part which is binding is the Ratio of a case and the
part which is not binding is its Obiter.
Therefore, the main aim of this very article is to establish a clear view on the topic of
Obiter Dictum and that of Ratio Decidendi, and, also to deal with all other related
concepts.
Material facts of a case + Decision thereon = Ratio Decidendi of a case
Non binding parts of a judgement given by the judges in a case = Obiter Dictum
Detailed Analysis of Ratio Decidendi:
As has been already stated above that Ratio Decidendi is the reason upon which the
decision of a court is based. Given in the Blacks Law Dictionary, a very clear meaning
of Ratio Decidendi, it says the rule of law that a later court thinks a previous court has
based its decision on. This means that the concept of Ratio Decidendi is very much
connected with the concept of Precedents. Precedents are the rule of law, taking
which, the Judges base their decision in a future case.
Having considered the extent to which the courts are bound by the previous decisions,
let us now understand and examine as to what constitutes the decision of a case and
23
what is it that is actually binding on the later courts. First we have to distinguish as to
what a court decides generally as against what it decides to the parties individually.
What a court decides generally or what the court states generally in a case, is its Ratio
Decidendi or the rule of law for what it is an authority. Since the authority of the rule of
law lies in its Ratio, and Ratio is what a court has generally stated, therefore the future
cases in a court of law are judged by the things that the courts have already been
stated, and these things are nothing but the precedents. Therefore it is now
important to understand the authority of precedents and how they play an important
role in the determination of Ratio of a case.
Meaning and Authority of precedents:
Precedents, in law, is a judgement or a decision that is cited in a subsequent case or
dispute as an example to justify in deciding the case that is similar to the earlier case
or any other point of law in the same manner. Basically the origin of the term
Precedents lies in the common law legal systems, where Precedents, is a principle
or a rule of law established in a previous legal case and which is either binding or just
has a persuasive value on the courts in deciding the case having similar issue or facts.
The principle by which judges are bound by the precedents is recognised by Doctrine
of Stare Decisis (This article would be dealing with this very doctrine at a later point
of time).
Binding precedents are the precedents that must be applied or followed. According
to this rule the precedents or the rules of law set by the appellate court are totally
binding on the courts at a lower level. The lower courts must honour the findings of
law made by the higher courts that are within the appeals path of the cases the court
hears. In general, neither the decisions given by the lower courts are not binding on
the higher courts in the system nor the decisions given by the higher courts are binding
on the courts at a lower level that fall under a different appeals court. Further the courts
must also follow their own proclamations of law on the cases and should also honour
the rulings made by different courts in a matter before them concerning the parties in
the same matter having the same facts and figures. Now, Binding Precedents relies
on the doctrine of Stare Decisis, subsequent paragraphs would be dealing with this
doctrine.
1. Doctrine of Stare Decisis: Essentially, the term Stare Decisis, means- To
stand by a judicial decision. Basically Stare Decisis is none other than a policy,
which states or dictates that the court must abide by the decided cases or in
other words its a principle that maintains that previous decisions are to be
followed by the courts. According to this doctrine the decision of a higher court
within the same provincial jurisdiction acts as a binding authority for the lower
courts in the same territorial jurisdiction. In practical terms, this very doctrine
has been described as follows:
What the doctrine of precedents declares is that cases must be decided the same
way when their material facts are the same. Obviously it does not require that all the
facts should be the same. We know that in the flux of reality all of the facts cannot be
the same, but the legally material facts can be the same and it with this that the
doctrine is concerned.15 In the words of Benjamin Cardozo If a group of cases
involve same point of law then the parties involved in some other case having the
15
Learning the law (9th Ed. 1973) Glanville Williams
24
same group of material facts, would also expect the same decision that has already
been given under those group of cases. To decide differently would create a feeling of
resentment; it would be a breach of moral and material rights.
Similar holdings were later seen in the case of Sweney v The Department of
Highways16 , where the court of Appeal laid down that Liberty to decide each case as
you think it right, without having any regard to the principles laid down in the previous
similar cases, would only lead to uncertain laws in which no body would be aware of
his rights and liabilities and he has only one option left that is to guess as to before
which judge his case would be going to come and as to how the judge would be going
to take the matter into consideration, without any regard to the previous decisions.
This clearly means that, Precedents definitely hold some authority without which the
decisions are somewhat not adaptable to be taken. Subsequent paragraphs are going
to deal with the authority that is held by the precedents in detail:
Many people, who are deeply concerned with the topic of Precedents and Ratio
Decidendi like Holdsworth, seem to be somewhat confused on topic as to whether to
emphasize more on the stricter sense of the term Precedents or to rely on a softer
sense of this term. Holdsworth will be found to support the doctrine in the loose rather
than in the stricter sense. In his words, the people who attack this doctrine, attack it in
a stricter sense and never in its loose meaning. Now what this doctrine mean in a strict
and loose sense, let us look at it.
Doctrine of Precedents, in a strict sense signify that what the precedents have been
set by the courts in the past are needed to be strictly followed without leaving any
scope for any sort of compromise herein, on the other hand, Doctrine of precedents in
a loose sense signify that, what the precedents have been set by the courts in the past
are important but the future courts are not totally bound to follow the same. Thus the
two sides are less at a variance than they seem to be on the ground. The real issue
here is, whether the doctrine of precedents should be maintained in the stricter or in a
loose sense. In favour of the present practice, it is said that the practice is necessary
to secure the certainty of the law, predictability of decisions being more important than
the approximation of an ideal; and a very unsatisfactory decision can be reversed for
the future by the statutes. What is needed, is submitted, and is the power of the judges
to set aside their own mistakes. Such a power does not exist at the moment in some
degree, for a High Court Judge may at a point of time, refuse to obey the ruling laid
down by some other High Court Judge, only a superior court can overrule a decision
given by an inferior court and any court may restrictively distinguish the obnoxious
precedents. But the process of overruling is not in itself an adequate solution to the
problem, for it is possible only for the superior courts and thus involves a litigant in a
considerable expense.
2. Circumstances destroying or weakening the binding force of the
precedents.
a) Abrogated decisions- A decision ceases to be binding if a statute or a statutory
rule, inconsistent with it is subsequently enacted or it is reversed or overruled
by a higher court. Reversal occurs when the same decision is taken on appeal
and it is reversed by the appellate court. Overruling occurs when the higher
court declares in another case that the precedent case was wrongly decided
16
[1933] O.W.N. 783 (C.A.).
25
and it is not to be followed. Since overruling is the act of superior authority, a

case is not overruled merely because there exists some later opposing
precedents of the same court or a court with sub ordinate jurisdiction. In such
circumstances the court is free to follow either precedent, whereas when the
case becomes fully overruled by the full sense of word then the court becomes
bound by the overruling case not merely to the disregard the overruled case but
to decide the case precisely in some other way.
b) Affirmation or reversal on a different ground- It sometimes happen that a
decision is affirmed or reversed on appeal on some different grounds. In a case
Hack v London Provident Building Society17, the judgement was given on some
different grounds, was deprived of all the authority, and thus becoming nonbinding on the subsequent courts, being the reason to this given that the
appellate court did not agree with the grounds stated by the courts below.
c) Ignorance of statute- A precedent may become non-binding if it was rendered
in ignorance of the statute or rule having the force of statute i.e delegated
legislation. But the mere fact that the earlier court misconstrued the statute does
not solely form the basis of the destruction of the binding force of the
precedents.
d) Inconsistency with the earlier decision of higher court- It is a clear law that the
precedents loses its binding force if there is inconsistency with the earlier
decision of a higher court to the judgement that was given by a lower court. Say
for example, if the court of appeal decides a case in ignorance of a particular
decision given by the House of Lords which actually went another way, the
decision of the court of appeal is binding neither on itself nor on the lower courts.
Conclusion to Ratio DecidendiSo, in this article, till now, we have looked at a detailed analysis of the topic Ratio
Decidendi, and how deeply it is connected to the concept of precedents. Since Ratio
being a reason to the decision, as to why the courts have headed towards taking a
particular decision, precedents play a very important role in this whole scenario. With
the help of precedents, the higher courts by taking into consideration the material facts
of the case, decide the case in the same way as has (if at all be) been decided before
in some different matter (being only the material facts the same). This is the reason as
to why it was necessary to study even precedents in detail.
Detailed Analysis of Obiter Dictum:
What in general terms, we are able to understand the meaning of the term Obiter
Dictum (also referred to as Obiter Dicta), is the general expression of opinion that
is uttered by the judge in a court of law or in a written judgement, but that is not really
binding on the court to taken that very opinion into consideration while deciding some
other matter.
Following are the steps to be followed, to understand the concept of Obiter Dictum:
1. Understanding the meaning of Obiter Dicta- As already stated above, Obiter
Dicta are the general expression of the opinion that are given by a judge in the
court of law, or in a written judgement, that are not binding on the same court
or any other court of law, as precedents. In other words, a layman can
understand the concept of Obiter, by keeping in mind that these are that part of
17
(1883) 23 Ch.D 103 at 112
26
a judgement that the court considers as a separate point altogether, about

which the court expresses its opinion but does not take it as a binding force like
that of the precedents. These are those points of common law that the court
thinks, as to what condition would have arisen had the matter been the other
way round?
2. Noting the relevancy of Obiter Dicta in the future court decisions- Obiter
Dicta can guide, enlighten and perform the duty of informing future case
reasoning, but they are not binding on the court. Thus the future court does not
follow anything that has been stated as an Obiter in the previous court case.
Subsequent courts can out rightly dismiss the previous court case given that
Obiter does not form a part of the reasoning or any sort of rule of a case. Apart
from all this, even Obiter can have very influential impacts of the subsequent
cases.
3. Realise that Obiter dicta may take different forms- Some of the commonly
used Obiter Dicta, include the what if scenarios, which means as to identify,
what will happen if at all some other situation arises and then, what would be
the Obiter in that case.
This is to note that, one of the essential features of the doctrine of precedents in
the common law is that, the rules of law are developed in the very process of
application. This means that they are created by judges, neither by law teachers
nor by some other lawyers who deal with law. Under common law, only judges
possess a power that they can make different rules under law in the very process
of their application that is when live facts come into light. Moreover, there is also
one fact that too cannot be denied and that is- Different rules of law are made by
the judges when they are acting as judges, and not when they are acting in their
extra- judicial capacity that is when deciding cases and not, for example, while
giving lectures or doing some other tasks. Thus basically what we are, trying to
say over here is that law should fundamentally result from being applies to live
facts and that too when they are argued from both the sides.
In the course of judgement, a judge may however let fall various observations that
are not relevant to the issue before him. He may for instance relate his reasoning
with different hypothetical situations and the law which he thinks to them. There
would be conditions that may arise to a judge while deciding a case that he may
not think it necessary to pronounce different points upon which a judgement could
be taken, when that judgement has been taken on one point only. But there may
also be cases when the judge might want to indicate as to how he would decide
the case when the other factors, that were missed this time, were taken into
consideration. Here again we are not given the judges final decision on a live issue,
so that it would once again be unwise to endow it as much authority as the actual
decision. These observations by the way of Obiter Dicta, are without a binding
authority, but are nonetheless important, as not only do they help in rationalising
law, but, it also helps us serve suggest different solutions to the problems that are
not yet decided by the courts.
Conclusion to Obiter DictaObiter Dicta and Ratio Decidendi are like two phases of the same coin. Just like Ratio
Decidendi is the binding part of the coin, on the courts of law, in the same manner,
Obiter Dicta is the non-binding part of that coin. Some people think that, Obiter Dicta
being non-binding lacks its importance but, it is not so in reality. Obiter is as important
27
as Ratio Decidendi. Obiter Dicta, is that part that helps us in rationalising different rules
and tells us different points upon which a decision could be based had they been taken
while deciding a particular matter in the court of law. This is that part that makes us
understand as to how would the case be decided then, when the point or the criteria
upon which a decision of the case is based, was not present.
28
WOMEN ENTREPRENEURS- CHALLENGES AND SOLUTIONS WITH

FOCUS ON SMEs
ABHIJEET KUMAR PANDEY
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,
VISAKHAPATNAM
Abstract
As India has paved its way from being a land of snake charmers towards becoming a
well-established economy, the status and empowerment of women has been a very
important issue in the Indian society. As of today, it can be said that the status of
women has changed and they have been contributing to the countrys economy,
though in a very less percentage.
Today, women want to be independent in terms of making decisions about their life
and career. Today they dont just want to have domestic responsibilities; they want to
be economically independent. Entrepreneurship provides a stable platform for
economic empowerment of women and thus the nation.
Small and Medium Enterprises (SMEs) has been a significant part of the Indian
Economy and is now being promoted and developed by Indian Government by
passing an act in 2006. Women entrepreneurs have become a major part of SMEs in
India. About 98% of women-owned enterprises are SMEs.
As of 2014, contribution of women-owned enterprises to the industrial output has only
been 3.09%. The main challenges faced by them in the SME sector are lack of access
to easy financing and latest technologies. The lack of sufficient exposure to the global
economy as compared to their male counterparts has also been a hindrance for them.
The scope of this research paper will be limited to a brief study of Woman
Entrepreneurs in India, the challenges faced by them in the SME sector and the
various solutions and government resolutions.
WOMEN ENTREPRENEURS
As India has paved its way from being a land of snake charmers towards becoming a
well-established economy, the status and empowerment of women has been a very
important issue in the Indian society. As of today, it can be said that the status of
women has changed, and they have been contributing to the countrys economy,
though in a very less percentage.
Once Pandit Jawaharlal Nehru said, You can tell the condition of a Nation by looking
at the status of its women.
According to the Government of India, Women Entrepreneurship has been described
as an enterprise venture owned and controlled by women, which has the financial
interest of at least 51% of the capital and which provides at least 51% of the
employment generated in the organisation to women.
For the development of the organisation, women entrepreneurs need to explore the
prospects of new enterprises, venture into the global market to get introduced to the
29
innovations and developments. They need to revamp their skills of leadership,

business administration, coordination and control of the business.
A 2009 study on Women Entrepreneurs in Small and Medium Enterprises in Asian
developing countries, states that the SMEs are gaining overwhelming importance, but
the representation of women entrepreneurs in this sector is relatively low due to some
factors like lack of high level of education, lack of proper capital and cultural and social
restraints and stigma. This study also depicted that most of the women entrepreneurs
are literary being forced into this kind of job ventures for seeking better family
income.18
According to the United Nation Industrial Development Organisation, Women play a
significant role in the society and the economic well-being of the family and
communities at large. Therefore, gender equality is an essential factor for poverty
reduction. It has also been stated that women must be an integral part of development
not only as beneficiaries but also as decision-makers and agents of change in the
micro, medium and large enterprises, be it in rural or urban areas.19
It has become clear that women are, and will continue to be the powerful drivers of
development in a nation. It has been observed that when men and women become
equal, economies grow faster, there is a reduction in poverty, and overall well-being
increases. Studies have reported that raising female employment to male levels can
have a direct impact on GDP growth rates, increasing it by as much as 34% in some
countries, and that countries productivity can increase by as much as 25 % if
discriminatory barriers against women are removed.20
REASONS FOR THE INCREASE IN THE NUMBER OF WOMEN
ENTREPRENEURS
There has been an increment in the percentage of the women entrepreneurs in the
recent years. The reason for this can be many but to site a few, this can be the
changing ideology of the society regarding gender discrimination, or the women
desiring a feeling self-sustenance and economically self-dependent. The knowledge
grabbing capacity of women and the habit of making out plans and making the best
out of efficient policies help women to venture as women entrepreneurs.
Today, women want to be independent in terms of making decisions about their life
and career. Today they dont just want to have domestic responsibilities; they want to
be economically independent. Entrepreneurship provides a stable platform for
economic empowerment of women and thus the nation.
A drive of having an own career and life having of self-made decisions can also be
one of the reasons for women becoming a part of this venture. These women
entrepreneurs positively contribute to both family and the society. Today it can be said
in the true sense that the glass ceiling is being shattered by the women in India.
It has also been observed that women opt for this venture because of self-satisfaction
and self-recognition they get from becoming the part of a global economy. Better
quality of education and better facilities provided by the government can also be one
of the drivers for women opting for entrepreneurship. Sometimes they may be
18
Tambunan, Study on Recent Developments of Women Entrepreneurs in Asian developing

Countries (2009)
19 A path out of poverty, Developing Rural and Women Entrepreneurship, UNDIO, Vienna, 2003
20 Conflict, Security, and Development, World Development Report, World Bank, 2011
30
compelled to do so due to the poor economic condition the family or if the woman has
been divorced.
Today, job seekers are turning into job creators. Women are opting for
entrepreneurship in the fields of interior designing, exporting, publishing, garment
manufacturing, hospitality businesses, etc.
Also today, women are being motivated by many nationally and internationally
acclaimed women entrepreneurs. Some of the internationally acclaimed women
entrepreneurs are: Madame C. J. Walker, Mary Kay Ash, Martha Stewart, Anita
Roddick, Oprah Winfrey, Debbi Fields, etc. some of the nationally acclaimed women
entrepreneurs are:
Simon Tata Lakm
Mrs. Sumati Morarji - Shipping Corporation
Ms. Nina Mehrotra Exports
Ms. Shahnaz Hussain - Herbal Heritage
Dr. Kiran Mazumdar Shaw - Bio-technology
Priya Paul - Apeejay Surrendra Group
Mrs. Vidhya Manohar Chhabria - Jumbo Group
Sulajja Firodia Motwani - Kinetic Motor
WOMEN ENTREPRENEURS AS CONTRIBUTORS IN THE NATIONAL ECONOMY
Research has shown that women are more likely to invest a significant amount of their
household income in the education and well-being of their children, as compared to
their male counterparts. When women are economically empowered and have the
ability to accumulate assets and increase their economic security, it has been seen
that they contribute in improving industrial capacity and in spurring economic growth
by creating new jobs, as well as in expanding the pool of human resources and talents
available in the country.21
By establishing their new ventures of entrepreneurship, women generate new jobs for
themselves and for others and also provide different skills of management and
organization to the society and also help the family and society in coping up with
different business problems. Women entrepreneurship can make a very strong
contribution to the economic well-being of the family and the nation, and can also help
in poverty reduction and women empowerment.
ABOUT SMEs
Small and Medium Enterprises (SMEs) has been a significant part of the Indian
Economy and is now being promoted and developed by Indian Government by
passing an act in 2006. Women entrepreneurs have become a major part of SMEs in
India. About 98% of women-owned enterprises are SMEs.
The Ministry of Micro, Small and Medium Enterprises (MSME) of India recognises
SMEs as the engine of growth all over the world. The Administration and development
of the Small and Medium Enterprises is now being governed by a separate Act, i.e.,
Micro, Small and Medium Enterprises (Development) Act, 2006, which came into force
on 02nd October, 2006.
This Act facilitates the development of these enterprises and also seeks to enhance
their competitiveness. This has been the first-ever legal framework for the recognition
Decent Work and Womens Economic Empowerment: Good Policy and Practice, UN Women,
2012
21
31
of these enterprises in India, which comprises of both manufacturing and service

entities. This Act also defines Medium enterprises for the first time and seeks to
integrate these three types of enterprises. This Act also provides a statutory
consultative mechanism at the national level with the balanced representation of all
section of stakeholders, and with a wide range of advisory functions. This Act also
facilitates the establishment of specific funds for the promotion and development of
these enterprises. This Act also features the implementation of progressive credit
policies and practices and assurance of schemes for easy running of these
enterprises.
Back in 1954, the office of Development Commissioner was established on the basis
of the recommendations of the Ford Foundation. It has been termed as an agency that
advocates and facilitates the sector of small industries. Various kinds of facilities such
as testing, tool monitoring, training for entrepreneurship development, etc. are being
provided by this office. It also advises the government on the formulation of policies
for the development of small and medium enterprises sector.
Quick estimates of MSME Sector:22
Number of MSMEs- 26.1 Million.
Number of Manufacturing Enterprises- 7.3 million.
Number of Service Enterprises- 18.8 million.
Number of Women Enterprises- 2.1 million (8%).
Number of Rural Enterprises- 14.2 million (54.4%).
Employment- 59.7 million.
Per Unit Employment- 6.24.
Per Unit Fixed Investment- Rs.33.78 lacs.
Per Unit Original Value of Plant and Machinery- Rs. 9.66 lacs.
Per Unit Gross Output- Rs. 46.13 lacs.
Employment per One lakh Fixed Investment- 0.19.
WOMEN IN SMEs
Hina Shah, Director of International Centre for Entrepreneurship and Career
Development (ICECD) states, It is the zeal that gets an entrepreneur started. Before
imparting our training for SME ownership, we select women on the basis of their goal
setting ability and a desire to grow. Small and medium enterprise (SME) is probably
the only sector in which a woman can enjoy being a mother, wife and a self-employed
individual all at the same time.23
Women entrepreneurship is considered as one of the most important factors
contributing to the economic development of the country. The Planning Commission,
as well as the Indian Government, recognises the need for women to be part of the
mainstream economic development. The role of women entrepreneurs is very relevant
in the situation of large-scale unemployment that the country is facing.
The government has also granted several relaxations for the development of women
entrepreneurs. Generally, the contribution from the Ministry of MSME under the MSE
cluster development programme varies between 30 to 80% of the total project, but in
case of clusters owned and managed by women entrepreneurs, the contribution can
be up to 90% of the project cost. Similarly, under the Credit Guarantee Fund Scheme
for SMEs, the guarantee cover is generally up to 75% of the loans extended, however,
22
23
Micro and Small Enterprises in India, an Overview, Ministry OF MSME, Government of India.
Savanti Banerjee, ET Bureau, Sep., 2003
32
the extent of guarantee cover is 80% for SMEs operated and owned by women
entrepreneurs.24
CHALLENGES FACED BY THE WOMEN IN THE SME SECTOR

As of 2014, the contribution of women-owned enterprises to the industrial output has
only been 3.09%. The main challenges faced by them in the SME sector are the lack
of access to easy financing and latest technologies. The lack of sufficient exposure to
the global economy as compared to their male counterparts has also been a hindrance
for them.
Women entrepreneurs have been particularly taking risks by venturing into the global
market and establishing their businesses and going into the outer world to compete
with their male counterparts, on their self-established economic goals. In the recent
years, they have been quite successful in this venture. However, there have been
some of the other obstacles that have been hindering the woman entrepreneurs to
develop to a great extent. Also, the ideology of the society in which women is
considered to be of lower status has been quite a great obstacle for the development
of women entrepreneurship.
Various constraints to the Women Entrepreneurs (Gender Specific) are:25
1. Human Capitala) Lack of a combination of various factors such as education, work experience,
vocational and technical skills.
b) Differences in endowments, preferences and barriers to entry and exit.
2. Selection of Sectora) Overrepresentation in traditional sectors due to having low start-up costs and
limited barriers to entry.
b) Female entrepreneurs, especially those in informal enterprises, generally
operate home-based businesses.
3. Access to informationa) Lack of or limited access to technology due to various reasons such as
affordability, lack of knowledge, and/or social norms.
b) Women are more likely to start an enterprise in sectors with low effective
demand leading to lower profits.
4. Access to financea) Less favourable profile with investors since women own small businesses and
do not have adequate collateral.
b) Financial institutions may require higher collateral from female entrepreneurs.
Some banks may also require a male co-signer along with the women to open
accounts.
c) Low financial market participation.
d) Preference for own savings to finance enterprises instead of credit from
financial institutions.
24
Vinesh, Role of Women Entrepreneurs in India, Global Journal of Finance and Management, pg:
473-480, 2014
25 Based on various studies: Reyes Aterido, Thorsten Beck and Leonardo Iacovone, Gender and
Finance in Sub-Saharan Africa: Are Women Disadvantaged? 2011; Strengthening Access to Finance
for Women SMEs in Developing Countries, International Finance Corporation, www.ifc.org, 2011;
Sushma Narain, Gender and Access to Finance, 2009; Chamlou, Nadereh, et.al. The Environment
for Women Entrepreneurship in the Middle East and North African Region, 2007
33
5. Institutional Factorsa) Informality and home-based enterprises are mainly the results of a need to
combine work and family responsibilities.
b) Having limited vocational and technical skills which may be due to womens
lower educational attainment or various social norms that limit their physical
mobility.
6. Policy/ Legal Factorsa) Limited awareness and knowledge regarding relevant government legislations
and lower experience on starting a business as compared to men and
compliance thus discouraged.
b) Women are more vulnerable to corrupt officials.
c) Denial or limited ability to own assets and inheritance due to several existing
laws.
7. Social/ Cultural Normsa) Competing for demands between market and household work for the time due
to family responsibilities.
b) Limited female labour market participation.
c) Mobility constraints.
Obstacles for Women Entrepreneurship in India:
Lacking certitude: Though woman may be having the required capability and
skill to venture into the global market, they are still not progressing to a great
extent due to social stigma and the lack of support from their families. This
results in them losing their confidence while managing the business.
Cultural restraints: Women are supposed to be cultured and for this they are
supposed to stay indoors and take care of the household chores. The main
barrier for the women to pursue careers in business is the problem of
simultaneously managing the household chores, looking after the family and
managing the business of efficiently.
Market-related risks: Lack of proper contacts and the proper knowledge of the
market hinder the growth of women entrepreneurs. Also, women being socially
deprived of some benefits, they are unable to properly advertise their products.
Also, they lack the knowledge of changing market and the innovations and
developments.
Administrative restraints: women must have proper skills of managing a
business and the skills of cooperating with employees in the proper and
beneficial way. Sometimes, the employees take their employers lightly
considering them to be less strict as their women. Also, women pursuing a
career in business must excel in decision-making and develop good business
skills.
Financial hindrances: Mostly women are unaware of the various financial
benefits provided by various institutions in the country. This hinders the growth
of their entrepreneurship ventures. Also, lack of inherent property and assets
and low economic savings hinders the growth.
Lack of proper training: Various workshops and training sessions are being
made available by many institutions. These programs need to be more gender
specific. Various programs need to be charted out depending upon the skills
and knowledge of the women.
34
WAYS TO OVERCOME THE OBSTACLES AND CHALLENGES

Some of the suggestive measures overcome the hindrances for the development of
women entrepreneurship are:
Proper technical education to the women and the opening of women
development cells.
Improvement of identification mechanism of new enterprise and Administrative
training.
Assistance in project formulation and follow-up of training programs.
Credit facilities, financial incentives and subsidies.
Adequate support to the women enterprises by various institutions.
Personality Development Programmes for rural as well as urban women
entrepreneurs.
GOVERNMENT INCENTIVES AND POLICIES
According to the Ministry of MSME, various programs are being conducted by several
government and non-government organisations. According to the Ministry, various
programmes including Entrepreneurs Development Programs (EDPs), are being
conducted by the Micro, Small and Medium Enterprises Development Organisation
(MSME-DO), the various State Small Industries Development Corporations (SSIDCs)
and by several nationalised banks.26
Also, one of the most important incentives granted by the Ministry is the Outstanding
Women Entrepreneur of the Year award for the recognised achievements. A Woman
Cell has also been opened by the office of Development Commissioner (MSME) to
provide coordination and assistance to the women entrepreneurs facing specific
problems.27
Another one of the most important schemes of the Government is the Income
Generating Scheme, implemented by the Department of Women and Child
Development, which provides assistance for training as well as income generating
activities to make women economically dependent.
Various other schemes like the Market Development Assistance Scheme have been
introduced to encourage the participation of the women entrepreneurs in the global
market.28
Many Mini Tool Rooms and Training Centres and Testing Centres have been
established to provide quality equipment, machines and tools and also to provide
quality testing equipment for testing various raw and finished products.29
Various Schemes introduced by the Government of India for the development of
Women Entrepreneurs are:
Trade Related Entrepreneurship Assistance and Development Scheme
(TREAD):
The objective of this scheme is to encourage women to start their ventures. The
Government launched this scheme during the 11th Plan. The scheme envisaged
economic empowerment of women through the development of their entrepreneurial
skills in non-farm activities. There major three parts of the scheme are: Government
of India provides grant up to 30% of the total cost of the Project to the Non-Government
Organizations (NGOs) for promoting entrepreneurship among women. The remaining
26
www.dcmsme.gov.in/schemes
http://www.dcmsme.gov.in/MSME-DO/sido.htm
28 http://dcmsme.gov.in/MSME-DO/SSIMDA.htm
29 Main Incentive Schemes of Ministry of MSME, Government Of India, www.dcmsme.gov.in
27
35
70% of the total project cost is financed by the lending agency as a loan for undertaking
activities as envisaged in the project. Up to Rs.1 Lakh per program will be granted by
the Government of India to training institutions/NGOs for providing training to the
women entrepreneurs.30
Micro & Small Enterprises Cluster Development Program (MSE-CDP):
a) Existing Clusters:
A group of enterprises (normally 20 or more) producing same or similar
products/services are described as Clusters. The Cluster Development Program
focuses on a diagnostic study of identified clusters of traditional skill-based MSEs; it
identifies suitable technologies for the development of entrepreneurship and facilitates
adoption of available technology depending upon the specific needs of the end users.
The Cluster Development Program goals at improving competitiveness, technology,
adoption of best manufacturing techniques, marketing of products/services,
employment generation, etc.31
b) Physical Infrastructure:
The Ministry of MSME announced Integrated Infrastructural Development (IID)
Scheme to provide infrastructural facilities like exhibition/display centers,
telecommunications, power distribution network, roads, water facility, raw materials,
technological backup services, etc. to the developed sites. This scheme has been
included in the MSME Cluster Development Program.32
As of today, the Government of India grants 40% of the total cost of the project
(maximum Rs.2 Crore) to create the physical infrastructure for women enterprises.
The Ministry of MSME is trying to enhance the value of grant up to 80% of the total
project (maximum Rs.10 Crore).
Credit Guarantee Fund Scheme:
The Government of India had introduced the Credit Guarantee Fund Scheme in May,
2000. This scheme provides credit to Small Scale Industries, particularly for loans up
to Rs. 25 lakh with no collateral/ third party guarantees. This Scheme is being operated
by the Credit Guarantee Fund Trust for Small Industries (CGTSI) set up jointly by the
Government of India and Small Industries Development Bank of India (SIDBI). In the
case of women enterprises, the guarantee cover is up to 80% of the credit subject to
maximum guarantee limit of Rs. 20 Lakhs.33
Help for Entrepreneurial and Managerial Development:
Micro, Small and Medium Enterprises Development Institutes (MSME-DIs) regularly
conduct Entrepreneurship Development Programs for existing and potential
entrepreneurs. It has been proposed that such beneficiaries are to be paid a stipend
of Rs.500 per month to encourage more entrepreneurs from among the SC/ST,
women and physically challenged groups.34
Scheme for Women Entrepreneurs to Encourage Small & Micro Manufacturing

Units:
The office of Development Commissioner (MSME) has formulated a scheme for
women entrepreneurs to support Small & Micro manufacturing units owned by women.
30
http://www.dcmsme.gov.in/schemes/treadwomen.htm
http://smallb.sidbi.in/policies-schemes/micro-small-enterprises-cluster-development-programmemse-cdp
32 http://www.dcmsme.gov.in/schemes/iidscheme.htm
33 http://smallb.sidbi.in/credit-guarantee-fund-trust-micro-small-enterprises
34 http://msmehyd.ap.nic.in/Skill%20Development.htm
31
36
This Scheme aims at developing overseas markets and to enhance participation of

representatives of Small and Micro Enterprises under Small Industries Development
Organisation (SIDO) stall at International Trade Fairs and Exhibitions, to enhance
export from such units.
The goal of enhancing participation of women entrepreneurs in 25 different
International Exhibitions has been included in this Scheme during the 11 th Plan.
Mahila Coir Yojana:
This Scheme provides self-employment opportunities to the rural women artisans in
regions producing coir fibre. Mahila Coir Yojana is a woman-oriented self-employment
scheme in the coir industry. The scheme includes distribution of motorized ratts for
spinning coir yarns to women artisans after giving training. Under this Scheme,
Women spinners are trained for two months in spinning coir yarn on motorized ratt at
the Coir Board training centers. A stipend of Rs.500 per month is also paid to the
trainees.35
At present, the Government of India has around 27 schemes for women
entrepreneurs. They are:36
Integrated Rural Development Programme (IRDP)
Khadi And Village Industries Commission (KVIC)
Training of Rural Youth for Self-Employment (TRYSEM)
Prime Ministers Rojgar Yojana (PMRY)
Entrepreneurial Development Programme (EDPs)
Management Development Programmes
Womens Development Corporations (WDCs)
Marketing of Non-Farm Products of Rural Women (MAHIMA)
Assistance to Rural Women in Non-Farm Development (ARWIND) Schemes
Trade Related Entrepreneurship Assistance and Development (TREAD)
Working Womens Forum
Indira Mahila Yojana
Indira Mahila Kendra
Mahila Samiti Yojana
Mahila Vikas Nidhi
Micro Credit Scheme
Rashtriya Mahila Kosh
SIDBIs Mahila Udyam Nidhi
Mahila Vikas Nidhi
SBIs Stree Shakti Scheme
NGOs Credit Schemes
Micro & Small Enterprises Cluster Development Programmes (MSE-CDP).
National Banks for Agriculture and Rural Developments Schemes
Rajiv Gandhi Mahila Vikas Pariyojana (RGMVP)
Priyadarshini Project- A program for Rural Women Empowerment and
Livelihood in Mid-Gangetic Plains
NABARD- KFW SEWA Bank Project
CONCLUSION
35
http://economictimes.indiatimes.com/topic/Mahila-Coir-Yojna-Scheme
36
Amit Kumar, Women as Entrepreneurs in India, Noida International University
37
Today, the society is changing and thus the economy of the nation. India has become
one of the most established economies in the world. Studies have shown that gender
equality helps in the development of economies. In this changing world, women are
venturing out in the global market and opting for entrepreneurship, and they have been
quite successful in this venture. This venture of women helps in improving the
economic conditions of the family as well as developing the economy of the Nation.
But some of the obstacles and hindrances need to be curtailed out. The Government
needs to particularly attend to the problems faced by the women entrepreneurs, and
more and more incentives must be launched by the Government to encourage women
to opt for entrepreneurship.
38
JUVENILE JUSTICE- A WEAK LINK IN OUR CRIMINAL JUSTICE

SYSTEM
ABHINAV MISHRA
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY,
VISAKHAPATNAM
Abstract
In the wake of the lacunae and drawbacks of Juvenile Justice Act, 2000, the Ministry
of Law and Justice passed the Juvenile Justice (Care and Protection) of Children
Amendment Act 2006, which another milestone towards filling the gaps in the JJA,
2000. Furthermore, in the light of Nirbhaya rape case of December 2012, the JJA was
further amended and the Juvenile Justice (Care and Protection) of Children
Amendment Act, 2014 was passed by the Lok Sabha of India.
The juvenile justice acts as a weak link in the chain of our criminal system which can
be exploited by anti-social and anti-national elements waiting for an opportunity to
endanger our national security. It is a debatable topic that whether there is a need for
a new legislation or an amendment in the existing one.
This study would analyse the meaning of the term juvenile delinquency. Earlier, the
impact of television and social media was very less on the young minds. As the times
are changing and technology is advancing, children are more prone to exposure to
sensitive materials.
The objective of the research is to study the trial procedures for juveniles, the reasons
involved in juvenile delinquency, to analyse various Acts related to juveniles, to know
the importance of Juvenile Justice, to understand the various offences of Juvenile
offenders and to know the remedies of the Juvenile offenders.
INTRODUCTION
The word juvenile has been derived from the Latin term juvenis, which means young
and, and the word delinquency has been derived from the Latin word delinquer which
means to omit. Thus a juvenile or child means a person who has not completed 18
years of age and violates the law and commits an offence under the legal age of
maturity.
Juvenile is used when reference is made to a young criminal offenders and minor
relates to legal capacity or majority37.The Definition of delinquency includes conduct,
which violates the law only when committed by children e.g. truancy, ungovernable
behavior and running away38.
The legal definition of Juvenile Delinquency is obvious. Any act prohibited by law for
children up to prescribed age limit is Juvenile Delinquency.
Children constitute about 40% of Indias population and India has a National Policy for
Children declaring children to be a national asset. Even so majority of Indias children
37Blacks
38
Dictionary of Law.
Ruth Shonle Cavan Theodore N. Ferdinand, Juvenile Delinquency (III Edition): 27
39
continue to be in difficult circumstances. India has witnessed an increase both in

crimes committed by children and those committed against them.
JUVENILE DELINQUENCY
Delinquency is an act, conduct or interaction which is socially undesirable. Juvenile
delinquency refers to the involvement by the teenagers in an unlawful behavior who is
usually under the age of 18 and commits an act which would be considered as a crime.
A child is known as a delinquent when he/she commits a mistake which is against the
law and which is not accepted by the society. It generally means the failure of children
to meet certain obligations expected of them by the society.
Cyril Burt39 says, delinquency occurs in a child when his anti-social tendencies appear
so grave that he becomes or ought to become the subject of official action. According
to Robison Holt40, "we use the term delinquent as we sometimes use the term love
as though it were a simple concept whereas it actually embraces complex patterns of
behaviour.
Juvenile delinquency takes place in various forms and very in degree, frequency,
duration and seriousness and involves different forms of specialization like drug
addiction, sex offences, predatory acts etc. Lately, it is observed that juvenile
delinquents commit offences of serious nature (like adults) including riots, arson,
robbery, dacoity, murder and even rape.
Of the total number of juveniles arrested in 2011 under different sections of IPC and
Special and Local Laws (SLL), 6,122 were illiterate, 12,803 were primary pass outs,
10,519 were above primary and below matriculation qualified and 4,443 were metric
and higher secondary qualified, the data said. A total of 27,577 juveniles, who were
held for criminal acts, were living with parents, 4,386 were living with guardians and
1,924 were homeless, the data said giving details of their family background. The ratio
of girls to the boys arrested for committing IPC crimes during 2001 was 1:2041.
Therefore, it is imperative to understand the concept of juvenile delinquency and
delineate the conditions giving rise to high rates of crimes and conflicts with law.
There is no single cause of Juvenile delinquency but there are many and varied
causes. Basically, causes of Juvenile delinquency are of three types.
1. Biological
2. Socio-Environmental
3. Psychological, Physiological and personal.
JUVENILE JUSTICE
A separate adjudicating and treatment mechanism has been established for persons
below 18 years of age. They are not to be treated in the same manner an adult offender
is treated. The reason for this being that a juvenile or a young person is believed to be
less blameworthy than an adult , as he is prone to act in haste due to lack of judgement,
39
Cyril Burt, The Young Delinquent, University Of London Press, Ltd (1925).
Juvenile Delinquency, (1960).
41 Crime in India, NCRB, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA
40
40
easily influenced by others. The trials of those aged under 18 falls into the Juvenile
Justice Board (JJB) Act 2000. The Juvenile Justice Act was thus, passed to provide
care, protection, treatment, development and rehabilitation of neglected or delinquent
juveniles and for the settlement of certain matters related to and disposition of
delinquent juveniles.
HISTORY OF JUVENILE JUSTICE IN INDIA
Juvenile justice was governed by various methods in ancient India. As the problem of
neglected children and juvenile delinquency grew with times, a need for legislation to
that effect was felt. India, a British colony then took inspiration from England, which by
then had already passed its own juvenile legislation. The Apprentices Act was passed
in 1850 as the first juvenile legislation to deal with children in India. As per the
provisions of this act, children between ten to eighteen years of age found indulging in
crime were placed in apprenticeship in a trade42. The Indian Penal Code came after
another ten years had passed.
Section 82 of the IPC grants blanket immunity to a child below seven years of age
imbibing the principle of doli incapax. The Latin term literally means incapable of
crime. IPC assumes that a child less than seven years of age does not have the
capacity to form a mental intent to commit a crime knowingly. Section 83 of the IPC is
an extension of section 82 with a rider attached. It grants qualified immunity to a child
aged between seven to twelve years43. The next milestone in the history of
development of juvenile justice in India was The Reformatory School Act of 1876 which
had a provision to empower the government to establish reformatory schools and to
keep young criminals there till they found employment44.
After independence, in 1960 a new act focusing on children was passed. This was the
Children Act, 1960 to provide for the care, protection, maintenance, welfare, training,
education and rehabilitation of neglected or delinquent children and for the trial of
delinquent children in the Union Territories.
JUVENILE JUSTICE LEGISLATIONS IN INDIA SINCE 1986 AND THEIR SPECIFIC
PROVISIONS45:
1. Juvenile Justice Act 1986
JJ Act was enacted in pursuance of the Beijing Rules 1985, prior to the CRC
Definition of juvenile or child 16 years for boys and 18 years for girls
Children were categorized as delinquent juveniles and neglected juveniles
Both categories of children were kept in an Observation Home together pending
inquiry
Juvenile Welfare Board was formed to deal with the neglected juveniles and the
Juvenile
Court was the adjudicating authority for the delinquent juvenile
The neglected juveniles were in the Juvenile Home and the delinquent juveniles to
42Government
43Government
of India (The Apprentices) Act, 1850 Publication division, New Delhi (1850)
of India, The Indian Penal code (1860) Publication division New Delhi, section 82, 83,
(1860)
44Government of India, The Reformatory School Act, Publication division New Delhi (1876)
45indianbarassociation.org/wp-content/uploads/2013/12/JUVENILE.pdf
41
the Special Home.

2. The Juvenile Justice (Care and Protection of Children) Act 2000
The Title of the Act stresses on the need for care and protection to both categories
of children.
Uniform age for both boys and girls any child who has not completed the age of 18
fall within the jurisdiction of the Act to comply with the CRC definition of the child
Separation of child in need of care and protection and child in conflict with law
Constitution of Child Welfare Committees to deal with children in need of care and
protection and Juvenile Justice Boards to handle children in conflict with law
The category of children in need of care and protection has been expanded to include
victims of armed conflict, natural calamity, and civil commotion, child who is found
vulnerable and likely to be inducted into drug abuse.
More legal protection assured for the child in conflict with law detention to be
resorted to as the last option, disqualification of past records and privacy maintained
The innovation the law makes with respect to children in need of care and protection
is the conceptualization of restoration of the child as being the focal point, with
restoration being conceptualized as restoration to parents, adopted parents or foster
parents. (Sec39).
The law outline four options of restoration for children in childrens homes and special
homes which include adoption, foster care, sponsorship and after care.
3. The Juvenile Justice (Care and Protection of Children) Amendment Act, 2006
The JJ Act 2000 was subsequently amended and hereafter referred to as the
Principal Act
The Amendment Act brought about 26 amendments which are in force
This Act forms the legal system and framework for the care, protection, treatment
and rehabilitation of children of both categories
AGE DETERMINATION OF A JUVENILE

Age determination is a tricky and controversial issue in juvenile justice. Juveniles in
conflict with law are subject to the same substantive law as are adult criminals 46, but
their treatment is different. Only the children between 7 to 12 years of age who are
sufficiently mature to understand the repercussions of their acts and children between
12 to 18 years of age can be tried under the act.
Section 49 (1) of the JJ Act confers the power on competent authority to determine
whether the person bought before it is a juvenile if he/she appears to be so.
But the procedure to determine juvenility of a person cannot be relied on 47. The two
ways to determine the age of the accused are documentary evidence and medical
evidence.
46
ARTICLE 40(4) of CRC

of India, The Juvenile Justice (care and Protection of children) Act, (2000), Publication
division, New Delhi. Section 49(1), (2000).
47Government
42
ORDERS THAT MAY BE PASSED REGARDING A JUVENILE

Section 16 of the act lays down provisions for orders that may be passed regarding a
juvenile, wherein the maximum penalty a juvenile has to pay is to remain in the
observation home for 3 years or till he attains the age of 21.
Central Acts and Rules on Juvenile Delinquency

Child Labour (Prohibition and Regulation) Act, 1986 (No. 61 of 1986)
Child Labour (Prohibition and Regulation) Rules. 1988
Commission for Protection of Child Rights Act, 2005 (No. 4 of 2006)
Commission for Protection of Child Rights (Amendment) Act, 2006 (No. 4 of 2007)
Immoral Traffic (Prevention) Act, 1956 (No. 105 of 1956)
Indian Penal Code, 1860 (No. 45 of 1860) sec 82, sec 83
Juvenile Justice (Care and Protection of Children) Act, 2000 (No.56 of 2000)
Juvenile Justice (Care and Protection of Children) Amendment Act, 2006 (No. 33 of
2006)
Juvenile Justice (Care and Protection of Children) Rules, 2000
Juvenile Justice Act, 1986 (No. 53 of 1986) (Now Repealed)
National Commission for Protection of Child Rights Rules, 2006
Probation of Offenders Act, 1958 (No. 20 of 1958)
Right to Children to Free and Compulsory Education Act, 2009 (No. 35 of 2009)
Trial procedure
In case of a juvenile, the parent, guardian or probation officers, as the case may
be,should be informed. No juvenile can be charged with or tried for any offence
togetherwith a person who is not a juvenile (GOI, 2000).
Areas of concern- The Juvenile Justice Act (GOI, 2000)
The act fails to express the minimum age, below which the Act would not be applicable.
The definition of juvenile delinquency provides very little scope for petty acts to be
dealt within the community. There is no concept of parental responsibility. Protection
and treatment by catering to their development needs, and by adopting a, childfriendly48 approach in the adjudication and disposition of matters in the best interest of
children and for their ultimate rehabilitation through various institutions established
under this enactment.
The education, training and recreation of children, who are in observation homes, have
not been provided for. Besides, basic or school education, even higher education and
training of these children should be considered in this Act. The Act fails to provide for
procedural guarantees like right to counsel and right to speedy trial. The Act does not
take into account the orders and directions of the Supreme Court and the various high
courts relating to determination of the age of the child. It empowers the Juvenile Justice
Board to give a child in adoption; even though, it is the Child Welfare Committee that
48Government
of India, The Juvenile Justice (care and Protection of children) Act, Publication
division, NewDelhi (2000)
43
deals with children in need of care and protection. The Act is silent on inter-country
adoption. There is no linkage between the Juvenile Justice Act 2000 and the other
legal provisions relating to children, for instance child labour, primary education,
sexual abuse, adoption, disabilities and health.
Many states have still not constituted adequate number of juvenile courts or juvenile
welfare boards. There is a poor network of juvenile observation homes or receptioncum- classification centres. Even if some observation homes or boards do exist, they
are not manned by the kind of sensitive personnel envisaged under the JJA.
LANDMARK JUDGEMENTS IN JUVENILE CASES
Arnit Das v State of Bihar49; 2000
On 5thjuly 1998, a murder under section 302 of I.P.C. was registered at Kadamkuan,
Patna. According to the FIR, a man named Abhishek was shot dead on that day. On
13thjuly, the petitioner Arnit Das was arrested in connection to the murder. On 14thjuly,
he was produced before the Additional CJM, Patna who remanded him to juvenile
home after recording his statement. The petitioner claimed to be born on 18.9.1982
and therefore still a juvenile, entitled to protection of the JJA, 1986. His claim was
disputed on behalf of the prosecution. The A.C.J.M., Patna directed an enquiry to be
held on behalf of section 32 of the JJA and the petitioner was referred to examination
by the medical board. On receiving evidences as was adduced on behalf of the
petitioner, the A.J.C.M. concluded that the petitioner was above the age of 16 on the
date of occurrence of crime. Thus, he was not required to be tried by a juvenile court.
Two questions arise from this case trial. Firstly, by reference to which date the age of
petitioner is required to be determined for finding out if he is a juvenile or not. Secondly,
whether the finding as to age, as arrived by the lower courts and maintained by high
court, can be sustained.
The senior counsel for the appellant has submitted that it is the date of crime which is
important for determination of the person claiming to be juvenile. Whereas according
to the Additional Solicitor General, the date on which the accused is brought before
the authority by reference to which the age of person is required to be determined to
find out whether he is juvenile or not.
Delhi gang rape case 2012 (nirbhaya case)
This case happened on 16th December 2012 in Delhi where a female was assaulted
and raped while her male friend was beaten badly. This incident happened in a private
bus in which she was travelling and there were 6 accused, including a juvenile. The
woman succumbed to her injuries and died 13 days later. This gruesome incident
generated widespread national and international coverage and was widely
condemned50.
All the accused were arrested and charged with sexual assault and murder. One of
the accused hanged himself in police custody. The rest of the 5 accused went on fasttrack court. The juvenile was convicted of rape and murder and was given the
maximum sentence of 3 years imprisonment and in a reformation facility. On 10 th
September 2013, the remaining 4 defendants were found guilty on the charges of rape
49Arnit
Das v State of Bihar: (2000) 5 SSC (Cri) 962; AIR 2000 SC 2264; 2000 CriLJ 2971 (SC)
last visited- 16th Nov. 2014
50www.wikipedia.org,
44
and murder and were sentenced to death by hanging. On 13th march 2014, the Delhi
high court in the death reference and hearing appeals against the verdict of the lower
court, upheld the guilty verdict and the death sentence.
As a result of the huge public outcry and protest, on 22 nd December 2012 a judicial
committee headed by J.S. Verma, former Chief Justice of India by the central
government to submit a report to suggest amendments to criminal law to strictly deal
with sexual assault cases.
The parents of Nirbhaya51 moved to the Supreme Court challenging the Juvenile
Justice trial for the 17 year accused and demanded a fresh trial by a criminal court
similar to the one faced by the other 4 accused who were found guilty and awarded
death penalty.
CONCLUSION
The age criterion for being a juvenile varies from country to country, state to state. In
recent years, it has become very clear that juvenile delinquency is the most important
aspect of the subject matter of criminology. Every nation makes effort to correct the
juvenile rather than punish him.
Juvenile justice has been given some shape with Juvenile Justice (Care and
Protection of Children), Act (GOI, 2000). Those dealing with children need to sensitize
themselves with this Act. Provisions and problems of the Act need to be understood.
Only then, can improvements be suggested.
Therefore, it is imperative to understand the concept of juvenile delinquency and
delineate the conditions giving rise to high rates of crimes and conflicts with law.
Letting serious crimes go unpunished in the name of juvenile justice only makes the
system more prone to misuse. Juvenile delinquents should not be brutalized in the
name of strict action but hardcore criminals should not be allowed to exploit the legal
system and go scot free either52. Criminal responsibility should be related to age at
which the children are able to understand the consequences of their actions.
51www.timesofindia.com,
52Witerdyk
last visited- 16thNov. 2014

A. John., Juvenile Justice System: International Perspectives, 266, (2004)
45
THE TRIBUNALIZATION OF ENVIRONMENTAL JUSTICE AND THE

NATIONAL GREEN TRIBUNAL OF INDIA
BISWAROOP MUKHERJEE
UNIVERSITY OF PETROLEUM & ENERGY STUDIES, DEHRADUN,
UTTARAKHAND
ABSTRACT
The environment has always been under constant attack owing to the developmental
plans of the world. The atrocities caused on the environment do have their
repercussions in the form of global warming, environmental pollution and
disintegration, and it is because of this that the idea of a National Green Tribunal was
conceived and it was subsequently acted upon, quite successfully indeed. Even
though the environmental problems have been persisting for quite a considerable time,
the conceptualization and implementation of justice in matters related to the
environment is relatively newer. Moreover, the very concept of environmental law
intrigue but a few. It is thus the aim of this author to disperse knowledge about the
erstwhile tribunal system, the development of the NGT in the wake of the more recent
requirements of implementing environmental justice, and the benefits reaped out of
the implementation of the same.
Keywords: environment, justice, tribunal, NGT
The very concept of administrative law has assumed remarkable prominence amidst
the dynamic sphere of law. The rule of law, that governs the people, and is ingrained
within the basic features of our Constitution, is sought to be protected and governed
by this branch of law.
The advent of industrialization, notwithstanding the advantages and benefits that it has
presented this world with, has brought about environmental change and degradation.
This onslaught on the environment has left the world barren and shredded, and
ironically the people themselves have to bear the brunt of their actions. The impending
danger to the environment has caused the world to sit up and take notice, and pursue
saving this fading eloquence of flora and fauna.
India, in its endeavour to becoming a developing nation, has undertaken certain
projects which act as impediments to the functioning of the environment. The idea of
becoming a welfare state, currently incorporates the notion of development sans
causing any adverse impact on the surroundings, save just that much which might
linger on the borders of reasonability or necessity.
The Tribunal system owes its genesis, especially to the 42 nd Amendment Act (1976),
which laid the foundation for Articles 323A and 323B. The number of Tribunals has
exploded after independence, and for good cause as well. Original jurisdiction has
been accorded to the Tribunals over many matters. It is a well-oiled and a highly
necessary quasi-judiciary body. The Tribunal system was introduced with the aim to
reduce the workload of courts, to expedite decisions and to provide a forum which
46
would consist of both lawyers and experts in the areas falling under the jurisdiction of
the tribunal.53
The erstwhile Tribunal system has been influenced by three major case judgements
L. Chandra Kumar v. Union of India, S.P. Sampath Kumar v. Union of India, and the
recent R. Gandhi v. Union of India. The High Courts were robbed of their power of
judicial review, pertaining to the Tribunals under Article 323A, subsequent to Sampath
Kumar. The case of L. Chandra Kumar was revolutionary for it vested the High Courts
with the power of judicial review with respect to Tribunals under 323A and 323B.
It is imperative to realize that Articles 323A and 323B did not lay the foundation for the
Tribunal system in the country rather, they were sewed into the Constitution to provide
a fillip to the existing tribunal system54, while also attaching constitutional validity to
their legislations.55
The Jaswant Sugar Mills56case, illuminated upon the parameter in order to conclude
whether an authority that was acting judicially was a tribunal or not, the principle
incident was whether it was invested with the accoutrements of a court, such as
having the authority to determine matters, power to induce the attendance of
witnesses, the duty to follow the essential rules of evidence and the power to impose
punishments. In another judgment in the same year,57 it was held that the three
indispensable rudiments for an institution to be a tribunal were that it had to have the
accoutrements of a court, had to be state established and it had to be bestowed with
the innate judicial powers of the state.
The establishment of the tribunals rested on the pillars of there being the dispersal of
speedy justice by the speedy disposal of the matters, by those harbouring judicial
experience and grass-roots experience. The Tribunals function as the court of first
instance with respect to the areas which reside in their purview.
The National Green Tribunal Act of 2010, helped establish the National Green
Tribunal. This tribunal has been guaranteed jurisdiction over matters which relate to
the conservation of forests and environmental protection. The Act was also challenged
on the ground that the tribunal allegedly lacked judicial independences, and the
Madras High Court, stayed the various appointments to such tribunal, while upholding
the contentions against the tribunal. The Supreme Court was approached by the
Central Government in pursuit of overturning the stay order, which was promptly lifted,
and the tribunal was granted permission to function awaiting the disposal of the appeal
in question. The sad truth was that subsequent to the lifting of the stay order by the
Supreme Court, the Central Government faltered to shower the tribunal with necessary
resources.
Prior to formation of the NGT, India tried to construct a couple of green courts viz. the
National Environment Tribunal Act, 1995 (NETA) and the National Environment
Appellate Authority Act, 1997 (NEAA). The most concrete environment court has
nonetheless been the National Green Tribunal. India has been perhaps the third
M.P. JAIN and S.N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW, VOL. I, 713 (6th edn., 2007).
M.P. JAIN, INDIAN CONSTITUTION LAW, VOL. I, 294 (5th edn, 2003).
55 D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, VOL. 9, 10647 (8 th edn., 2011).
56 Jaswant Sugar Mills v. Lakshmi Chand, AIR 1963 SC 677.
57 Engineering Mazdoor Sabha v. Hind Cycles, AIR 1963 SC 874.
53
54
47
country58 after its neighbours from the far corner of the Southern hemisphere
Australia and New Zealand, to have incorporated a special environmental court, and
all for good cause. The exigencies suffered by the environment need to be mended as
soon as possible, and one of the ways in going about such a task could be the
establishment of special fast-track courts, that understand the impending danger and
try to correct the blemishes that the current system translate onto the environment.
In order to sufficiently guarantee the Right to Life and Personal Liberty as guaranteed
under Article 21 of the Indian Constitution, to the citizens, the NGT was undoubtedly
and unequivocally a necessary advent. This Tribunal seeks to deliver environmental
justice, while delivering this environment from the hands of the defaulters and chaoscausers unto the hands of the social activists and environmentalists. It has provisions
of compensation which have to be paid to the affected parties, by the polluter, for the
troubles caused. The tribunal thrives on the notion of natural justice, while delivering
its judgements, and is not tethered to the Civil Procedure Code, 1908.
The incidents that made the genesis of green courts so irrevocably necessary were
the fact that in the wane of the last century, and the wake of the present, the Indian
Government initiated certain economic reforms, especially relating to Foreign Direct
Investment (FDI). This functioned as a blessing for it helped paint the Indian economic
scenario, in the bright colours of success. While riding this exuberant wave of industrial
growth and development, and subsequent to the economic liberalization, where such
process had poured many a project clearances in mining and exploration,
manufacturing and other industrial sectors59, it was noticed that the FDI and the
exports shot up, post liberalization, in the more polluting areas as compared to the
less polluting ones60. Thus, there arose a need for an effective, powerful and
technically adept chain of Green Courts, which could alleviate the country from the
turmoil.61
M.C.Mehta v. Union of India62, Indian Council for Environmental Legal Action v. Union
of India63, A.P. Pollution Control Board v. M.V. Nayudu64, and A.P. Pollution Control
Board v. M.V. Nayudu II65, have been landmark judgements, that have paved the way,
while embellishing it with principal decisions and observations, which have made it
inexplicably and irrefutably clear that there is a serious requirement for separate
environment courts.
The National Green Tribunal, which is established at Delhi, consists of 10-20 judicial
members. Usually judges from diverse High Courts and the Supreme Court, are
Balaji, J., Lok Sabha Passes The Green Tribunal Bill, THE HINDU, May 1st
2010
AT
(http://www.hindu.com/2010/05/01/stories/2010050164201400.htm).
58
BANGA, R, & DAS, A. (Eds.), TWENTY YEARS OF INDIAS LIBERALIZATION: EXPERIENCE AND
LESSONS. (United Nations Conference on Trade and Development, New York and Geneva) 2012.
59
Jha, Shreyasi, and Shanti Gamper-Rabindran, Environmental Impact of Indias Trade Liberalization,
Cornell University International Colloquium on S75 Years of Development Research.2004.
61 Astrea Legal Associates LLP, The National Green Tribunal, available at (http://astreallegal.com/thenational- green-tribunal).
60
62
1986 (2) SCC 176.

1996 (3) SCC 212.
64 1999 (2) SCC 718.
65 2001 (2) SCC 62.
63
48
appointed as the judicial members in the tribunal. There are certain subject experts as
well, who comprise the presiding authority in such tribunals. The number of judicial
members and subject experts are the same, so that a balance is maintained, and there
is equal representation from both the groups. These experts are doctorate degree
holders, with at least fifteen years experience in their respective fields of life sciences
or physical sciences. Post graduate engineers may also be an expert member.
Section 21 of the NGT Act declares that the majority decision will be taken into
consideration, and in case of failure of a clear majority, the Chairperson is ensured
with the superimposing power to decide the case after hearing. While the Act does
envisage and accord a wide jurisdiction on the Green Tribunal, it nevertheless, tries to
restrict the scope of its jurisdiction, so as to envelop matters that involve substantial
questions, relating to the environment.66 All environmental laws on water and air
pollution are included within the jurisdiction of the tribunal.
The NGT has been exemplary in moulding and manufacturing environmental
jurisprudence in India, while proving its efficacy in resolving environmental disputes,
through a few of its remarkable decisions.
The NGT, that a former Supreme Court judge heads, has ever since its inauguration
in the year 2010, stayed approvals for several projects. Eg., in the POSCO case67, the
Environment Ministry was ordered by the NGT, to go through the clearances, after
some local villages raised an objection to the project under the pro-tribal Forest Rights
Act, 2006. Officials are of the view, that the gram sabhas consent of the mandatory
requirement, for the initiation of any project, is by far the most difficult hurdle, in igniting
and in asserting infrastructural growth and development in mineral rich, poor regions.
The Ministry of Environment and Forests (subsequently referred to as MoEF), has
been at a loss generally for, the views of its nominal master has quite often been
rejected by the NGT. The Ministry has been criticized for poor decision making or
actions, and has been rebuked and lambasted, while civil society groups seek to
obtain relief from such actions of the government, that are environmentally
irresponsible.
Sufficient powers have been provided to the NGT, in order to deal with environmental
litigation. The tenets of the Act make it clear that, there will not be any rejection of the
efforts to seek judicial intervention, in pursuit of protection and improvement of the
environment, on the grounds of the problems concerned being such that there arises
or would arise complex, scientific and technical questions, transcending the scope of
the court. Thus, environmental advocates interested in filing Public Interest Litigations
(subsequently referred to as PILs), can derive hope from the same. Moreover, with a
couple of judicial members, the NGT is an autonomous statutory panel that consists
of eight experts from the such diverse fields covering engineering, physics,
environmental economics, chemistry, social sciences, botany, zoology, and forestry,
who assist and advise the adjudicators on a regular basis. The inclusion of various
experts so as to deal with the myriad problems piquing the environment, derives its
benefit from helping the NGT, to look through the deception of a careless idea or
thought, and consider the simple cost-benefit ramifications of any particular project
while also serving the larger interests of the environment and its development.
66
67
Section 14.
Prafulla Samantray v. Union of India, Appeal No. 8 of 2011 dated 30-3-2012.
49
The inception and institution of the NGT has been a God-send that has helped in the
cognizance of local environmental problems, which are presented before the judiciary,
by petitioners, at little cost, while they dissect and determine the environmental
impacts of any and all government decisions. The National Green Tribunal has every
authority, and also an underlying responsibility, to declare any administrative action
that contravenes or undermines environmental laws as illegal and invalid. The NGT is
also empowered, among other things, to review the orders which have been passed
under all prevailing environment protection laws, which include all of those laws
governing air, water, flora and fauna. No other court or authority has the jurisdiction or
power to show interest in any claim or action that is to be specifically dealt with by the
Tribunal. Therefore this rings the death knell for all of those government investments
and ventures, in which, there may reside potential environmental impacts.
In Braj Foundation v. Govt. of U.P.68, the NGTs Principal Bench, very recently
announced its verdict. The Braj Foundation, while contending, that there must a
direction addressed towards the Government, so that it executed the Memorandum of
Understanding (MoU) for the afforestation of Vrindavan forest land, had brought forth
the case. The verdict was against Braj Foundation, stating that the MoU was not legally
enforceable. The advertisement that was issued by the Forest Department, was held
to be only an invitation to treat and thus there could not be a locus standi in order to
enforce the contractual obligations. The Government was not disallowed thus, to
persist with its policy decision which was of personally honouring the afforestation
work, more so since there could be a possible rise in incidents of illegal mining and
encroachment, with the introduction third parties. The Tribunal, nevertheless,
proceeded a step forward, and directed that the Government was to ensure proper
afforestation. A second singular direction was the one to declare a minimum of 100
meter long stretch, that emanated from both the sides of the Braj Parikrama route to
be a no development zone.
In the matter of Vardhaman Kaushik v. Union of India69, the Court considered and
recognized the mounting pollution levels in the city of Delhi. A Committee was
therefore created, according to the direction of the judiciary, to combat the stubborn
rise in air pollution, by preparing an action plan, while it declared that for the time being;
vehicles aged 15 years and above, would be prohibited from plying or being parked
on the roads; that plastics and other similar materials were prohibited from being
ignited and burnt out in the open; that there be the creation of a special task force and
a web portal which would assist in making sure that such directions have been adhered
to; that all market- roads in Delhi, leave sufficient space for two way conveyance; that
special tracks for cycling be constructed; that such trucks and buses which were
overloaded and/or defunct, would not be allowed permission to ply; that there be the
installation of air purifiers and automatic censors in appropriate locations. 70 In
subsequent orders in the next hearing, the court decided and directed that a fine of
Rs. 1000 would be levied on every car that would be parked on metalled roads. A
provision was also to be made for multi-level parking in appropriate areas.71
68
Application No. 278 of 2013 and MA No. 110 of 2014 dated 5-8-2014.
Original Application No. 21 of 2014.
70 Vide order dated 26-11-2014.
71 Vide order dated 19-1-2015.
69
50
T. Murugandam v. Ministry of Environment & Forests72, is yet another case which

stands testimony to an incredible decision by the NGT, wherein importance was
accredited to the appropriate analysis and organisation of data, and the application of
mind by the EAC.
There have been numerous cases questioning the jurisdiction of the Tribunal. It was
ruled in Kalpavriksh v. Union of India73 that the jurisdiction of the Tribunal extended to
all civil cases where a substantial question on an environmental issue lingered and
arose from the implementation of the Acts which are stated in the Schedule I of the
NGT Act. The term implementation must, for this very purpose, neither be too
expansive nor too constrained nor keep in view every Notifications, Rules and
Regulations that are promulgated under the Act. In Tribunal at its Own Motion v.
Ministry of Environment & Forests74, wildlife was held to be a part of environment, and
such action could not escape the purview of the tribunal, which were to cause damage
or were to be likely to cause damage to wildlife. In Krishan Kant Singh v. National
Ganga River Basin Authority75, detailed directions were contained in the decision that
considered the contamination and pollution of river waters. A range of specific and
time bound directions, were provided by the Tribunal, to the polluting Municipal
authorities as well as the industrial units, who were ordered to allow the latter to comply
with directions. In Manoj Misra v. Union of India76 the a set of twenty eight directions
were provided by the Tribunal, ranging from restricting silviculture and floriculture
activities, to prohibition on dumping debris, all of this, in the sheer pursuit of guarding
and repairing the River Yamuna.
Various kinds of relief are enshrined under the Act.77 According to it, the victims of
various environmental damage, decay and pollution arising due to the enactments that
Schedule-I to the Act professes, inclusive of any accidents that might be contingent
during the handling of any hazardous substance, would be entitled to compensation
and relief. The restoration of the damaged property and the environment can also be
ordered by the Tribunal if and when the Tribunal so decide. 78 One may come to
observe that the relief as provided under this Act, is but supplementary to the
recompense as promised under the Public Liability Insurance Act, 1991. 79 Delayed
applications for compensation are condemned by the Act. The application for the claim
of relief, to be admitted by the Tribunal, is limited by a five year period, from the date
of the initial birth of such relief. In case it is proven beyond reasonable doubt, that the
applicant was prevented from filing the application, then a sixty days grace may be
awarded by the Tribunal.80 The claimants, are obligated therefore, under the Act, to
ensure that the Tribunal is sufficiently informed about the application that has been
filed, or accordingly, about the quantum of compensation or relief that any other court
or authority may have been pleased to grant.81 The provision for no fault liability can
be found to be provided for by the Act with respect to those incidents which lead to the
genesis of claims due to an accident, by authorizing the Tribunal to apply the Principle
72
Appeal No. 50 of 2012.

Application No. 116 (THC) of 2013 dated 17-7-2014.
74 Original Application No. 16 of 2013 (CZ) dated 4-4-2014.
75 Application No. 299 of 2013 dated 31-5-2014.
76 Original Application No. 6 of 2012 and MAs Nos. 967 of 2013 & 275 of 2014 dated 13-1-2015.
77 Section 15.
78 Section 15 (1).
79 Section 15 (2).
80 Section 15 (3).
81 Section 15 (5).
73
51
of no fault.82 Prompt relief is provided for by the Act, for it implores the Tribunal to
pacify the applications or the appeals, by endeavouring to dispose of the same, not
beyond six months from the date of filing the application or the appeal, after granting
the parties an opportunity to be adequately heard.83
The National Green Tribunal, is by far the most perceptive and progressive body
reigning over the adjudication of environmental issues in India. Starkly averse to the
Supreme Court, infrastructure projects do not routinely find favour with the NGT, nor
is there much delay in resolving the cases before it. The functioning of environmental
experts, and the parameter/s to select such experts has been redefined, to be in sync
with the dynamic needs of the current times. Various orders that stay the slaying of
flora in particular, and the environment in general, have been successfully
implemented by the Tribunal. The NCT in Delhi, seems to pale in the presence of the
grit and determination of the various regional green tribunals. A great number of
lawyers in the country, seem to be specializing in environmental law, due to the
impetus provided by the tribunalization of environmental justice.
82
83
Section 17 (2).
Section 18 (3).
52
ANALYSIS OF THE DRAFT CIGARETTES AND OTHER TOBACCO

PRODUCTS (PROHIBITION OF ADVERTISEMENTS AND
REGULATION OF TRADE AND COMMERCE, PRODUCTION,
SUPPLY AND DISTRIBUTION)
(AMENDMENT) BILL, 2015
AMIT SINGHAL
NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
ABSTRACT
While we, our society and our community understand the effects of cigarettes on our
health, they are also getting much informed about the major impact of its use to the
environment. While the topic of health is of utmost importance and therefore should
be discussed, it is also important to focus on this important side.
Due to its use the whole environment and its beauty is at risk. This can be seen in the
researchers estimation that 1.7 billion pounds of cigarette butts accumulate in lakes
and oceans and on beaches and the rest of the planet every year. Discarded cigarette
butts and filters contain the same dangerous chemicals contained in a cigarette,
including carcinogens and other poisons. Also, globally, about 4.3 trillion cigarette
butts litter the earth every year.84
So, what our i.e. Indian Government is doing to curve the use of cigarettes in India.
Therefore, this article discusses the Draft Cigarettes and Other Tobacco Products
(Prohibition of Advertisements and Regulation of Trade and Commerce, Production,
Supply and Distribution) (Amendment) Bill, 2015.
First we will see the whole Draft bill. Then after discussing the various aspects of it,
we will see that what can be done or should be added in the bill so that it fulfils its
objective fully. More specifically, the draft bill is lacking is in its accountability
mechanism, which is an important aspect of any legislation.
REVIEW OF THE WHOLE BODY OF THE LEGISLATION
On 13-01-2015, the Union Ministry of Health and Family Welfare85 placed the Draft
Cigarettes and Other Tobacco Products (Prohibition of Advertisements and
Regulation of Trade and Commerce, Production, Supply and Distribution)
(Amendment) Bill, 201586 in the Public domain to elicit comment/views of the
stakeholders including the general public by 15-02-2015.87 And proposes to amend
the following sections the Cigarettes and Other Tobacco Products (Prohibition of
Advertisements and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 200388:
Sec. 2: Declaration as to expediency of control by the Union and protection of
public health policies for tobacco control.
84
https://ucanquit2.org/Environment?p=1 (Last visited on 10 June, 2016).

Hereinafter referred to as MoHFW.
86 Hereinafter referred to as the Draft Bill.
87 The Draft bill.
88 Hereinafter referred to as the Act.
85
53
Sec. 4: Prohibiting spitting of tobacco along with smoking in public place. Also,
proposed scrapping designated smoking areas from hotels, restaurants and
airports; making an exception only for international airports.
Sec. 5: Prohibition on direct and indirect advertisement and promotion.
Sec. 6: Prohibition on sale of cigarettes and other tobacco products to person
below the age of 21 years, and in an area within a radius 100 meters of any
educational institution. Also, prohibiting sale of cigarettes and other tobacco
products loose or in single sticks and employment of any person under the age of
18 years in cultivation, processing, sale of tobacco or tobacco products.
The proposed age limit in sec. 6 will be revised to 23 and 25 in two phases after
evaluating the impact of raising the minimum age.
Sec. 7: Specifying warning on the principle display area of the packages and
disclosure of the information regarding the constituents and emissions on each
cigarette or other tobacco product on every package as well as to the Government.
Ss. 10, 11, 15(2), 31(2)(d) and 32: Substitution of words nicotine and tar with the
constituents and emissions.
Insertion of Sec. 19A: Constitution of the Special Courts.
Sec. 20: Punishment for failure to give specified warning and constituents and
emissions on the package and the label on the cigarette or any other tobacco
product.
Ss. 20, 21, 22, 24 & 28: Enhancement of punishment of fine.
Insertion of Sec. 24A: Cancellation of license.
Insertion of Sec. 25A: Constitution of National Tobacco Control Organisation89.
Sec. 27: Offences punishable under Sections 5, 6, and 7 shall be Cognizable.
Insertion of Sec. 34: The provisions of the proposed Act shall have overriding
effect over all other tobacco related laws.
Insertion of Sec. 35: Power to remove difficulties.
CONSULTATION
Have expert committees, government departments and agencies been consulted
about the contents of the proposed legislation?
Actually the bill has been proposed keeping in mind the following reports:
1. 196th report, the committee on subordinate legislation, Rajya Sabha.
2. Parliament Standing Committee on COTPA Bill, 2001.
Not only the reports but also international conventions and judicial enquiry is taken
into consideration while proposing this bill.
Have persons affected by the proposed legislation and the public been consulted?
It is interesting to note that, apart from the document itself, there are no other easily
accessible mentions of the draft bill on the MoHFW website or other related
government websites.
In addition to government agencies, public sector undertakings, academic institutions
and businesses the draft bill also brings in common citizens under its purview.
Government must take note that the knowledge and expertise of common citizens may
be inadequate to understand the nuances of the draft bill.
89
Hereinafter referred to as NTCO.
54
Though the citizens will be directly impacted by the bill as will be implemented by the
government or business users, citizens cannot at this point of time assume the
responsibility for direct compliance of this bill since their ignorance would be exploited
by intermediaries for business gain.
COMPREHENSIBILITY
Here what we mean by comprehensibility is that, whether the proposed bill is up to
the reach of those who are going to get affected by it?
Since, as per the report submitted by India in 2014,90 10.70% of the total population of
India are daily smokers and 20.3% current smokers are above the age of 65. Also the
fact that bidi and tobacco users are also from the rural areas as it not something which
is only peculiar to urban or sophisticated or educated or civilised people, so are there
any measures been taken or introduced in the bill to communicate the provisions to
the general public.
So,
Is the proposed bill written as clearly and as simply as the subject matter allows?
Is the proposed bill available in other languages?
And it is very unfortunate that the answer to the above questions is NO. Neither in
the Act, nor in the 2007 Amendment and finally nor the proposed 2015 amendment
incorporate such provision.
And the bill fails on the following counts:
No provision is incorporated to promote1. Public awareness about the health risks, economic, and environmental
consequences of tobacco consumption and exposure to tobacco smoke, and
about the benefits of the cessation of tobacco use and tobacco-free lifestyles;
2. Effective and appropriate training or sensitization and awareness programmes on
tobacco control addressed to persons such as health workers, community
workers, social workers, media professionals, educators, decision-makers,
administrators and other concerned persons; and
3. Awareness and participation of public and private agencies and nongovernmental
organizations not affiliated with the tobacco industry in developing and
implementing inter-sectoral programmes and strategies for tobacco control.
Also, the proposed bill fails to implement Article 12 of WHO FCTC Convention, which
puts obligation on the parties to educate, communicate, and train to make public
aware.91
LEGISLATIVE INTENTION
Is the purpose of the bill clear?
Yes, the purpose of the bill is pretty clear and that is to further amend The Act of 2003.
Is it clear who the law will apply to?
90http://apps.who.int/fctc/implementation/database/sites/implementation/files/documents/reports/india_
2014_report.pdf (Last visited on 10 June, 2016).

91 WHO FCTC, Article 12.
55
As this draft bill is further amending the Act and it doesnt contain any provision or
clause which is going to change the extent of the Act. Hence, the act is going to
applicable to the whole of India.
Is the Bill retroactive or does it have a retroactive effect?
From the language used in the draft bill and intention of the drafters, it is clear that the
draft bill is prospective in nature and it is not going to be retrospective anyway.
EFFECT ON EXISTING LEGISLATION
Do they resolve legislative conflict?
Yes, clause 20 of the draft bill provides for insertion of new sec. 34 after sec. 33. Sec.
34(1) provides for the overriding effect on all those provisions and acts which are
inconsistent with the parent act. And it shall be in addition to and not in derogation with
any other law prohibiting manufacture, distribution and sale of products specified in
the Schedule of the Act according to sec. 34(2) of the Act.
THE CONSTITUTIONAL ISSUES
Does the proposed legislation comply with the Constitution? In particular,
Are human rights respected and protected?
Article 21 of the Constitution of India is taken into consideration which provide for Right
to life and this right was held by the Supreme Court of India that subjecting a nonsmoker to the unhealthy environment would certainly violate his right under Article
21.92
Article 47 of the Constitution of India that provide for the duty of the State to raise the
level of nutrition and the standard of living and to improve public health.93
INTERNATIONAL OBLIGATIONS
In addition to subscribing to United Nations Conventions,94 India is a party to
international agreements and treaties. If proposed legislation affects or may affect
Indias international obligations, care must be taken to comply with any international
obligations.
Are there any international treaties or obligations affected by the proposed legislation?
Yes, India is a party to WHO95 Framework Convention on Tobacco Control96 with effect
from 10 Sep, 2003 and ratified it on 5 Feb, 2004.97 And according to Article 35 of WHO
92
THE CONSTITUTION OF INDIA, Article 21.

Ibid., Article 47.
94 http://www.un.org/en/members/ (Last visited on 10 June, 2016).
95 World Health Organization (The Constitution of the World Health Organization was adopted by the
International Health Conference held in New York from 19 June to 22 July 1946, signed on 22 July
1946 by the representatives of 61 States and entered into force on 7 April 1948.).
96 The Convention was adopted during the 56th World Health Assembly, which took place from 19 to
28 May 2003, at the Palais des Nations, Geneva. It was opened for signature by all Members of the
World Health Organization, or Members of the United Nations, and by regional economic integration
organizations from 16 June 2003 to 22 June 2003 at the World Health Organization Headquarters in
Geneva, and remains open for signature at United Nations Headquarters in New York from 30 June
2003 to 29 June 2004.
97 https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IX-4&chapter=9&lang=en
(Last visited on 10 June, 2016).
93
56
FRAMEWORK CONVENTION ON TOBACCO CONTROL98, the parties are bound by

the terms and obligations of the Convention.99
If so, have they been considered and appropriately dealt with?
1. It is a well-known fact that price and tax policies play a major role in reducing the
demand of tobacco and cigarettes, the present draft bill didnt contain any clause
which makes provision for the insertion of provisions that implement the tax and
price policy measures.100 Since, as per the data submitted by India to WHO
FCTC, 16.1% current smokers are from the age group of 15-24.101 Also these
measures can act as a deterrent in reducing the consumption of tobacco in the
age group of 15-24, who in most of the cases dont have much pocket money.
2. Clause 4 of the draft bill proposes to implement Article 8 of the Convention102 by
putting complete ban on using the tobacco products in public places. And also
including spitting of tobacco in the definition of use.
3. The draft bill also doesn't contain any clause which proposes guidelines for
testing and measuring the contents and emissions of tobacco products, and
regulation of these contents and emissions. Nor there was any clause for the
formation of any competent national authorities, which adopt and implement
effective legislative, executive and administrative or other measures for such
testing and measuring, and for such regulation.103
4. Clause 7 of the draft bill confirms to Article 10 of the Convention104 first by
replacing words tar and nicotine with constituents and emissions. Secondly by
putting obligation to disclose the facts to the Government and providing warning
on the principle display area.
5. The draft bill by not confirming to Article 11 of the convention105 doesnt provide
for the prohibition of using any means on the products that promote the use of
the consumption by putting any false, misleading and deceptive impressions.
6. Even the draft bill does provide for use of the warning on the principle display of
the packages, but failed to define the principle display area. In this condition,
this may be misused by the manufactures on the name of so called warning.
Hence, also not confirming to Article 11(1) (b).
7. Failed to provide any provisions any provision which implements diagnosis and
treatment of tobacco and cigarette dependence and also for the availability and
affordability of the counselling services for the tobacco users. Hence, again failing
in implementing Article 14 of the Convention.106
The WHO Framework Convention on Tobacco Control (hereinafter referred to as WHO FCTC) is
the first international treaty negotiated under the auspices of WHO. It was adopted by the World
Health Assembly on 21 May 2003 and entered into force on 27 February 2005. It has since become
one of the most rapidly and widely embraced treaties in United Nations history.
99 WHO FCTC, Article 35(2) {can be accessed at
http://apps.who.int/iris/bitstream/10665/42811/1/9241591013.pdf (Last visited on 09 June, 2016)}.
100 WHO FCTC, Article 6 [Price and tax measures to reduce the demand for tobacco].
101http://apps.who.int/fctc/implementation/database/sites/implementation/files/documents/reports/india
_2014_report.pdf (Last visited on 10 June, 2016).
102 WHO FCTC, Article 8 [Protection from exposure to tobacco smoke].
103 WHO FCTC, Article 9 [Regulation of the contents of tobacco products].
104 WHO FCTC, Article 10 [Regulation of tobacco product disclosures].
105 Packaging and labelling of tobacco products.
106 Demand reduction measures concerning tobacco dependence and cessation
98
57
8. Doesnt contain any provision for restricting the illicit trade and smuggling and the
use of counterfeit products by the manufacturers. Hence, not confirming to Article
15 of the Convention107.
9. Doesnt contain any provisions requiring the packets to provide for the origin and
final destination of the products, also not providing for the tracking and tracing
mechanism of the products, which ultimately assist in the investigation of the illicit
trade.108
10. The draft fails to provide provision for adopting and implementing the measures
to monitor, document and control the storage and distribution of tobacco
products.109 Forget about the measure for the confiscation of the product found
in illicit trading.
11. The draft does not put any emphasis on the regional and international
cooperation.110
12. Even the draft talks about the confiscation of the licenses, but to provide for the
mandatory licensing of the manufacturers, traders, sellers, etc.111
13. Doesnt prohibit the ban on the use of tobacco vending machine.
14. One of the provision in the draft bill is the prohibition of sell to the persons below
the age of 21 years and phase wise increasing the age for prohibition. But, how
you are going to identify that the person who comes onto your shop would be the
age of that particular age. In that case, the draft fails to provide any provision.
This loophole can be done away with by requiring the vendors to request
purchasers to provide appropriate evidence of having reached full legal age. 112
15. Not prohibiting the manufacture and sale of sweets, snacks, toys or any other
objects in the form of tobacco products which appeal to minors. Hence, not
confirming to Article 16(1) (c).
16. Even if clause 6 of the draft bill does provide for prohibition of employment of
people below the age of 18 year in cultivation, processing and sale of tobacco
products, but what about those who are above the age of 18. Dont they have
right to life or in other words right to health? Hence, there is a need for provision
supporting economically viable alternatives for tobacco workers, growers and
sellers.113
17. The draft bill did a noble cause by increasing the amount of fine to be imposed
on the violators, but it fails to provide compensation scheme for the sufferers who
got suffered due to the act of violators.114
ENFORCEMENT OF THE LAW
Who will enforce the law?
Clause 15 of the draft bill proposes for the insertion of new section 25A which provides
for the constitution of NTCO which will be responsible not only for the implementation
of the provision under the Act but also for the implementation of WHO FCTC, which is
missing in the Act.
107
Illicit trade in tobacco products.

WHO FCTC, Article 15(2).
109 WHO FCTC, Article 15(4).
112 Article 16.
113 WHO FCTC, Article 17 [Provision of support for economically viable alternative activities].
114 WHO FCTC, Article 19 [Liability].
108
58
Are human and financial resources available for enforcement?

The bill by substituting new clause (f) for Sec. 31 only provides for the specification of
the compositions, qualifications, tenure, removal, duties, functions, accountability of
members and the creation of the organisation. And there is no mention of the numbers
of members, qualifications, period of tenure, etc. but left at the mercy of the
Government in power to make rules according to sec. 31 of the Act. Hence, this may
lead to arbitrary and whimsical use of such provision by the Government and ultimately
violate the mandate of the Constitution of India violating Article 14 of the Constitution.
Is there a time limit within which enforcement proceedings must start?
The draft bill fails to provide any time limit within which enforcement proceedings must
start. Hence, according to Sec. 31 (f) of the bill, the Government is free to make rules
and create the organisation as and when they want and also there is no provision for
the accountability of the same.
CONCLUSION:
As a whole the draft bill is well drafted and incorporates many provisions which are
lacking in the parent Act, but still there is a need to add many provisions which confirms
to the mandate of the general public, the Indian Constitution and the International
Obligations. So as to fully achieve the objective of the Act.
One of the most important things of any legislation i.e. the accountability mechanisms
need to be considered in the draft bill:
Who is accountable for implementing and for the operation of the law?
Are annual or periodic reports required to be filed with Parliament?
Who will review the law to see if it is meeting its purpose?
When and how will reviews be done?
Will the results of the review be public?
Since, the above questions are remained unanswered in the present bill.
Hence, the Government after considering the above points should (or rather must)
withdraw the bill and then reintroduce it to make the Act A COMPLETE ACT.
59
INSTANT DIVORCE IN INDIAN SOCIETY

ANKIT BHANDARI AND ANIMESH BORDOLOI
NATIONAL LAW UNIVERSITY, ASSAM
Abstract
Marriage is foundation of family and in turn for modern civilized society. This
fundamental social structure is plays a significant role in determining the character and
structure of a family. Marriage is, no doubt, an individual relationship, but more than
that it is a social institution having complex social dimensions. The true happiness that
the institution of marriage can bestow upon a man/woman is found only in the
continued pursuit of harmony by a couple. The indiscreet and unguided divorce law
may destroy all that is good in marriage institution. Even if we take marriage as a mere
contract, it cannot be said that it is the parties whose interest have to be considered in
divorce proceedings. It is larger social interest which should be put above the
individual interest of parties. With the changing time and the need of the society the
demands for the instant divorce had been made which will provide much faster relief
than that of the nine grounds mentioned under section 13 of the Hindu Marriage Act.
Thus paper primarily focuses on the need of the introduction for the grounds of Instant
Divorce in Indian society.
Keywords: Keywords: Instant Divorce, Mutual Consent, Irretrievable Breakdown.
INTRODUCTION
Marriage and Divorce in early Roman law were considered as the private acts of the
parties. The usual custom that prevailed that time was two person if wanted to marry
they could do so and if they wanted to put their marriage asunder they were free to do
so. No type of formalities were required. But with the advent of the Christianity,
marriage as institution came to be known as sacramental and indissoluble union
through it retained its consensual aspect.115 Where else in Britain before 1857
marriage could only be dissolved only by the act of the parliament, but a considerable
pressure made them to recognized it under the Matrimonial cause act 1857 but only
ground added that time was of adultery.
But later marriage is also being regarded as social institution and not a transaction
between two individuals, hence many scholars argued that there was social interest in
preservation and protection of the institution of marriage. The consequence of this was
marriage came to be regarded as the special contract which could not be put to end
like any other ordinary contract. Thus a marriage could be dissolved if any one of the
party found guilty such acts which undermined the very foundation of marriage this led
to the emergence of theories of divorce116. (a) Fault theory. (b) Consent theory and (c)
breakdown theory. From the English law these theory came to Indian Law. The Indian
Divorce Act which applies to Christians was made according to the Matrimonial Cause
Act 1857. Earlier in the Hindu Marriage Act 1956 divorce was based only on the fault
grounds later the consent theory and breakdown theory was introduced.
115
116
Dr. Paras Diwan, Family Law, 10th ed. 2013, pp.27

Ibid
60
Among Hindus the marriage was considered as a mystic union of soul and body never
to be put to an end. This sacramental aspect of the marriage among Hindu is evident
from the ceremonial aspect which is still considered as the essential feature of Hindu
marriage. If we take a look back in history it shows that marriage during the age of
Vedic period, Upanishad and Sutras, marriage was governed by Hindu religion in
totality. It is only during the British period that law started to intervene in the institution
of marriage. Element of dissolution of marriage existed earlier also but it took fullfledged shape during this time only.
With society being changing the idea of divorce has also undergone change, idea of
Instant divorce has come up. By Instant divorce we means how fast a court can give
remedy to parties to marriage in respect of divorce proceedings. If we see today there
is no express provision in statue book or grounds which give instant divorce in Indian.
But divorce by mutual consent is one of the closet species of instant divorce in India.
Under Indian personal law divorce by mutual consent is being recognized under Hindu
Marriage Act 1956, Special Marriage Act 1954, Parsi Marriage and Divorce Act1936
and Dissolution of Muslim Marriage Act 1939.
Fault Theory of Divorce.
The guilt theory or fault theory of divorce lays down that a party seeking divorce must
be an innocent party. Thus basic requirement of this theory is guilt and innocence. In
other words one of the spouse must have committed one or the other matrimonial
offence and the other party seeking remedy must be innocent. Since requirement was
that the petitioner should be an innocent party it lead to the bars on the matrimonial
relief, discretionary bar and absolute bar.117
But later when the insanity was added as the ground for divorce the guilt theory was
rechristened as fault theory. Thus theory was change to fault theory and came to be
known as marriage could be dissolved if one of the party is at specified fault in him,
marriage could be dissolved, irrespective of the fact whether the fault committed was
conscious act or not.
From the English law Fault theory came to Indian law. The Indian Divorce Act 1869
which applies to Christians was made according to the Matrimonial Cause Act 1857 in
which the grounds for divorce was only adultery. Originally under Hindu Marriage Act
1955 divorce was based only on fault theory later the consent theory and breakdown
theory was introduced. Under Dissolution of Muslim Marriage Act 1939 nine grounds
of divorce are recognized. Later on Paris Marriage and Divorce Act 1936 was
amended and eleven fault grounds of divorce was included. Section 23 of Hindu
Marriage Act 1955 and Section 34 of Special Marriage Act of 1954 deals with bar on
matrimonial relief.
Consent Theory of Divorce
The basic underline of consent theory is that parties to marriage should have same
freedom of divorce as they have of marriage. If we consider marriage is based on
mutual consent of the parties and the marriage should also be dissoluble by the mutual
consent of the parties. Many times people enter into transaction and want to get out
of it, thus parties mat enter into marriage and want to get out of it, as they realized it
was a mistake or based on mutual desire they want to get out of it. The scholars who
support this theory are of view that. Since the basis of any marriage is mutual fidelity
117
Ibid, pp.28
61
and due to any reason if parties feel that this fidelity cannot be maintained they should
have freedom to get out of it. They feel that such type of freedom would bring about
happy marriage and reduce the unhappy ones.118
This theory is being recognized in many countries around the world namely Belgium,
Sweden, Japan some states of United States and U.K. In India it is recognized under
Hindu Marriage Act, Special Marriage Act, Paris Marriage and Divorce Act and Muslim
law and Divorce Act, 2001. Under Muslim law it is recognized in two forms namely (a)
Khul and (b) Mubbaraat. But theory has been criticized mainly as it makes divorce too
easy.
Breakdown Theory of Divorce.
In Gollins v. Gollins119 and William v. William120 the courts in these cases observed
that the purpose of divorce is not to punish the guilty party but to protect the innocent
ones. Hence there was now a fundamental change in the policy. Further in Masarati
v. Masarati121 in case both the parties had committed adultery and court on wife
petition said main factor in divorce was of breakdown of marriage. Once the marriage
is broken down no social or public interest would be served by keeping the spouses
together, and gates for the breakdown theory was opened up. Idea behind the
breakdown theory being since marriage had been broken down on account of fault of
one party or due to fault of both the parties. Thus law should recognize this and redeem
the party from this situation which has become intolerable, and it would be of no
purpose or in any way will serve social or individual interest to enquire as to which
party responsible for breakdown of marriage
Mutual Consent as Ground of Instant divorce.

Section 13B122 of Hindu Marriage Act deals with the Divorce by mutual consent which
is based upon the consent theory of divorce. Basic requirement of Divorce by mutual
consent under Hindu Marriage Act gathered after reading of section 13B lays down,
party or spouses desiring divorce by mutual consent must present the joint petition.
1. They must be living separately for period of one year.
2. They have not been able to live together.
3. They have mutually agreed that marriage must be dissolved.
118
Ibid, pp.30
(1963) 2 All ER 966
120 (1963) 2 All ER 994
121 (1969) 1 WR 392
122 Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may
be presented to the district court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of
1976) ,on the ground that they have been living separately for a period of one year or more, that they
have not been able to live together and that they have mutually agreed that the marriage should be
dissolved. On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in sub-section (1) and not later than eighteen months after the
said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after
hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized
and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be
dissolved with effect from the date of the decree.
119
62
The expression living separately appearing in section 13B means that the party must
be living separately preceding the presentation of petition and it is necessary that
immediately preceding the presentation of the petition the parties must be living apart
and two essential ingredients to be (a) Physical separation , (b) intention to
separate123.
Under section 13B expression have been living separately does not mean they are
living separately under two roofs or living apart. in Sureshta Devi v. Om Prakash124
Apex court interpreted the expression living separately as parties may live under the
same roof due to circumstance yet they may not be husband and wife and on other
hand the parties may live in different houses as husband and wife thus what the law
maker intended was that parties have been living separately and have no desire to
perform their martial obligations. Further same was upheld in Kiritibhai Girdharbhai
Patel v. Prafulaben Kiritibhai Patel125 in this case Gujarat high court interpreted
expression living separately as it is not necessarily that the spouse must live in
different places. The expression only requires that they must be living apart and not
living as husband and wife and subsequently
Second thing which is necessary under this type of divorce is that after it is being
established that there is separation of one or more year is shown the first ingredient
or essential element for divorce by mutual consent is established, again if we see
expression may have not been able to live together has nowhere defined. Court
through various judgment clear this picture as very fact if we see that parties have
presented the petition by mutual consent is indicative that they are not been able to
live together. Further one years of living separately and parties living separately and
parties not resuming living together is clear indicative of that they are not able to live
together.126
Now another question that arises is that what happens when one of the party
withdraws his consent. Under mutual divorce the parties have mutually consented that
marriage between them must be dissolved and for the same they have presented the
petition, and many cases have arisen in which one party withdrawn their consent. One
of prominent case in this regard would be of Jayashree Ramesh Londhe v. Ramesh
Bhikaji Londhe127 in this wife filed the petition for divorce on several grounds but later
both the parties consented that they will give the divorce mutually to each other. But
later the husband withdrawn his consent addressing this issue Bombay high court said
once the consent is given no party can unilaterally withdraw from it. Court further
added that since petition of was filed by mutual consent hence no party could withdraw
from it without the consent of other party. But in Sureshta Devi v. Om Prakash128 court
held that it is open to one of the spouses to withdraw the consent given to the petition
at any time before the Court passes a decree for divorce. The satisfaction of the Court
after holding an inquiry about the genuineness of the consent, necessarily
contemplates an opportunity for either of the spouses to withdraw the consent.
Sub Section (2) of the Section 13B lays down that parties must move to court for
passing a decree of divorce after the six months but not later than eighteen months.
123
Dr. Paras Diwan, Law of Marriage & Divorce, 6th ed. 2011, pp.564
AIR 1992 SC 1904
125 AIR 1993 Guj 111.
126 Dr. Paras Diwan, Law of Marriage & Divorce, 6 th ed. 2011, pp.567
127 AIR 1984 Bom 302
128 AIR 1992 SC 1904.
124
63
But this requirement in Platero of cases held no to be of mandatory. In Grandhi

Venkata Chitti Abbai129 court in this case observed that if section 13B(2) read as
mandatory the vary purpose for liberalizing the policy of decree of divorce by mutual
consent will be frustrated more so when parties started living separately for
considerable amount of time. Thus section 13B(2) though mandatory in form is
directory in substance. Again in Dinesh Kumar Shukla v Neeta130 it was held that
waiting period is directory in nature and can be brought down from six months if all
efforts of reconciliation failed. In Hitesh Narendra Doshi v Jesal Hitesh Joshi131 court
held that the provision has a definite purpose and object i.e. giving time to parties for
introspection and reconciliation. That purpose and object stares at us so clearly by the
language as expressed in Section 13B (2) of the act robbing away the right of the court
from considering the petition earlier than the six months.Therefore, the courts have
been inclined more towards waiving off this period if the circumstance of the case
demands so and where there is no chance of reconciliation between the parties.
But some of high courts in India have devised a new technique of granting Instant
divorce under Section13B of Act on the basis of which court consider as Compromise
Deed or Mutual Agreement without complying with the provisions of Section 13B of
the Act.132 As seen above to pass the decree of divorce under Section 13B it is the
mutual consent of both the parties which gives the jurisdiction to district court to pass
a decree. Mutual compromise and mutual agreement without complying with others
necessary conditions under Section 13B is not legally sufficient grounds to pass the
decree. In Janardhanan v. Syamala Kumarry133 Kerala High court said
Section 13B in the Act is not to be understood as carte blenche granted by Parliament
to the spouses to dissolve the marriage on mutual agreement. The said provision
contains certain other postulates also despite the dominance of mutual agreement
factor therein
Irretrievable Breakdown as ground of Instant Divorce.
Breakdown theory of divorce represent the modern view of no fault theory. Basis of
this theory is that if party can satisfy the court that marriage had been broken down
and they desire to dissolve the marriage because situation has become so intolerable
between them, marriage shall be divorced whatever the cause may be. Section 13(1A)134 provides the situation when the divorce can be obtained by a party to marriage.
But bare reading of the section 13 makes it clear that there is no such ground for
129
AIR 1999 AP 91
AIR 2005 MP 106
131 AIR 2000 AP 364
132Daljit Singh, "Desirability of Instant Divorce by the Judiciary: A Critique", 45 (pts. 3-4) JILI (2003), p.
439, 46 (pts. 1-2) (2004), JILI, p. 127
133 II (1990) DMC 128.
134 Either party to a marriage, whether solemnised before or after the commencement of this Act, may
also present a petition for the dissolution of the marriage by a decree of divorce on the ground
130
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period
of [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which
they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a
period of [one year] or upwards after the passing of a decree for restitution of conjugal rights in a
proceeding to which they were parties.
64
irretrievable breakdown of marriage is provided by the legislature to pass the decree

of divorce.135
Irretrievable breakdown of marriage as a grounds of divorce is not being recognized
in the statutes book. It is not a separate ground of divorce. No decree of divorce will
be granted by the court on this ground if party is himself or herself at the fault. Decree
on this ground can be granted by court if the party can show that the marriage has
gone to such stage that it is practically dead and they cannot live together as husband
and wife. Thus court can use this power only in the exceptional circumstances and in
interest of parties. A decree of divorce cannot be granted by the court on the ground
that marriage had been irretrievable broken down in absence of one or more grounds
as mentioned in section 13 of Hindu Marriage Act.136 Grounds on which irretrievable
theory has been opposed is that, it will allow party to terminate the marriage at their
own will and it is against the basic principle contained in the Section 23 of the act that
no person showed be allowed to take advantage of his own wrong.137
In Vishnu Dutt Sharma v. Manju Sharma138 Supreme court said that decree of divorce
between the parties cannot be granted on the ground that marriage has irretrievably
broken down. The courts cannot add new ground of divorce in section 13 or any other
statutes it being the function of legislature and not of court. Thus it would not be
appropriate to apply irretrievable breakdown as the straight jacket formula to grant
relief of divorce.139
There has been increasing demand for introducing the separate ground for the
irretrievable breakdown of marriage as grounds of divorce. Section 13(1-A) and 13-B
are insufficient to deal with all remedies. Under the fault grounds marriage may have
broken down the parties are compelled to live together, and the fault of accused is to
be put under pigeon holes provided in the law140. Sometimes it may happen due to
lack of evidence the party may not granted relief. Thus if we see situation where
marriage had been broken down beyond repairs and if law does not take this into
account it would be harmful and injurious to the interest of parties as well as to as
society. Judiciary from time to time had laid stress on this things and when there is
long separation between the spouses it can be fairly said that marriage is broken down
beyond repairs.
Another important thing in this regard is that only Supreme Court has power under
Article 142141of the constitution to give decree under this same can be seen from
Kanchan Devi v. Promod Kumar Mittal142 in which Apex court exercised its power
135
Dr. Paras Diwan, Law of Marriage & Divorce, 6th ed. 2011,pp.586
Vijender Kumar, Irretrievable Breakdown of Marriage: Right of Married Couple, 5 NALSAR Law
Review (2010), p.15
137 Ibid
138 AIR 2009 SC 2254
139 Dr. Paras Diwan, Law of Marriage & Divorce, 6 th ed. 2011,pp.589
140 Vijender Kumar, Irretrievable Breakdown of Marriage: Right of Married Couple, 5 NALSAR Law
Review (2010), p.15
141 Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) 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, and any decree so
passed or orders so made shall be enforceable throughout the territory of India in such manner as may
be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in
such manner as the President may by order prescribe
142 AIR 1996 SC 1515
136
65
under Article 142 of Constitution and dissolved the marriage on the grounds that
marriage has broken down beyond repairs. Now the time has come and legislature
has to take steps to provide for specific grounds when decree of divorce would be
granted on basis when marriage is irretrievable breakdown. As seen above without
the grounds only Supreme Court has power to grant decree, nor does high court have
this power. Thus if grounds would be added decree can be given in the court of
competent jurisdiction under section 19 of the act. In Naveen Kohli v. Neelu Kohli143 in
which Supreme Court recommended the union to seriously consider to bring
amendment in the Hindu Marriage Act to incorporate the irretrievable breakdown of
marriage as ground for divorce.
Suggestions
The Law Commission of India in its 71st report after analysing the Hindu Marriage Act,
1955 recommended that the aspect of divorce needs some further additions. It
suggested the addition of two sections namely, 13C and 13D to the said Act. While
13C shall be dealing with the irretrievable breakdown of marriage, section 13D shall
on the hand be dealing with the wifes right to oppose the petition of divorce on the
grounds of economic hardship.
Irretrievable breakdown of marriage is one aspect which has started to grow in
demand but has not been included in the Hindu Marriage Act, 1955 or even in the
Special Marriage Act, 1954. The Supreme Court in the case of Naveen Kohli v Neelu
Kohli144 recommended to the Union of India to include irretrievable breakdown of
marriage in the HMA, 1955.
The said recommendations also suggested some sub additions to the section 13C.
The court held that the irretrievable breakdown of marriage cannot be a ground for the
marriage to end until the parties to the marriage have proved that they have lived apart
for a period of at least three years continuously after the presentation of the petition.
Another suggestion on the same line was that in the period of continuously living apart,
if the parties not exceeding a period of three months resumed living with each other,
shall not count as a part of the period for which the parties to the marriage lived apart.
Further, the husband and the wife shall be treated as living apart from each other if
they are not living in the same household.145 Moreover, the court should in addition to
this also be satisfied that the marriage had broken down irretrievably.
Another amendment that should be made to the HMA, 1955 according to the Law
Commission report was the addition of a section which would give the wife the right to
oppose the grant of a decree of divorce on the grounds that in the granting of the same
she would suffer from financial hardship. This provision was suggested to be included
in a new Section, 13D. If the courts are satisfied that the decree of divorce would result
in grave financial hardship to the respondent.146 In such a situation the court if satisfied
by the claims of the respondent would either squash the petition for the decree or will
stay the proceedings until arrangements have been made to remove the hardships of
the respondent.
143
AIR 2006 SC 1675

AIR 2006v SC 1675
145 71st Law Commission Report
146 Ibid at 2
144
66
Instant Divorce and Customary Divorce.

One of the unique features of Hindu Marriage Act is that it retains custom in some
matters. This aspect also relates to the dissolution of marriage section 29(2)147 makes
it clear that post-act or pre-act marriage are dissoluble under custom or special
enactment. Before Hindu law was codified and presented as Hindu Marriage Act the
divorce can be given only under custom or special legislation otherwise Hindu
marriage was indissoluble. In respect of the customary divorce party neither has to
observe one year bar to divorce or any bars laid under section 23. Nor the provisions
of section 24, 25 and 26 is applicable to such divorce. No petition is required in the
court.148 Divorce under custom is obtained under gram-panchayat or caste tribunal or
caste panchayat. Custom must fulfill all the prerequisite of valid custom. Divorce under
custom may gave the parties instant relief but these belongs to particular community
or tribes and they are not universally applicable throughout territory of India. Therefore
the idea of instant divorce cannot be drawn from that of customary divorce prevalent
in our society.
147
Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred
by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or
after the commencement of this Act
148 Dr. Paras Diwan, Law of Marriage & Divorce, 6 th ed. 2011,pp.554
67
SECTION 498 [A] IPC: VICTIM TURNING INTO THE ABUSER

ANKITA ASERI
NATIONAL LAW UNIVERSITY, JODHPUR
ABSTRACT
This paper is an attempt to understand how a law which was enacted with an objective
to safeguard the interest of woman later became a weapon in their hands and was
grossly misused. The paper aims to analyse would constitute cruelty and under what
circumstances can a woman file a case under this section. The paper aims to analyse
the way how a victim turned into a biggest abuser. It also aims to analyse the problems
in Section 498a IPC. The paper also deals with various judicial pronouncements
related to the misuse of Section 498a IPC. This paper is written with the objective to
suggest some measures as to how the problems related to this section can be
eliminated. It is high time that this Section be amended and some changes like
suggested in this paper should be brought up in this law.
INTRODUCTION
With increasing reports of cruelty on women behind four walls for dowry The Indian
Penal Code, 1980 was amended in 1983 and Section 498a was been inserted to
safeguard the interest of women who were been harassed for the simple reason that
they could not get dowry.
Matrimonial cruelty in India in India is a cognizable, non bailable and noncompoundable offence. Matrimonial cruelty is defined in Chapter XXA of I.P.C. under
Section 498a as:
Husband or relative of woman subjecting her to cruelty. - Whoever being the husband
or the relative of the husband of a woman, subjects her to cruelty shall be punished
with imprisonment for a term, which may extend to three years and shall also be liable
to a fine.149
According to Black's Law Dictionary, cruelty is defined as the malicious and intentional
infliction of mental or physical suffering on a living creature, esp. a human; abusive
treatment.150 The Indian Penal Code states that for the purpose of Section 498a,
cruelty means:
a) any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health )whether
mental or physical) of the woman; or
b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet such a demand.151
The main objective of Section 498a of IPC is to protect a woman who is being
subjected to cruelty by her husband and relatives. Harassment for dowry falls within
the sweep of latter limb of the section. Creating a situation driving the woman to
commit suicide is also one of the ingredients of cruelty.152
149
Section 498a, Indian Penal Code, 1860.

Bryan A. Gaener, Blacks Law Dictionary, 9th Ed., 2009, p.434.
151 Supra note 149.
152 Law Commission Report No. 243 <http://lawcommissionofindia.nic.in/reports/report243.pdf>.
150
68
In the case of Inder Raj Malik v. Sunita Malik, it was held that the word 'cruelty' is
defined in the explanation which states that the harassment of a woman with a view
to coerce her or any related persons to meet any unlawful demand for any property or
any valuable security is cruelty.153
In the case of Shobha Rani v. Madhukar Reddy, it was observed that the word
'cruelty' cannot be defined as it is a conduct in relation to matrimonial duties and
obligations154. The word 'cruelty' is a very subjective term. It is also not necessary to
prove intention in cruelty. If the intention to harm, harass or hurt could be inferred by
the nature of the conduct or brutal act complained or, cruelty could be easily
established. But the absence of intention should not make any difference in the case,
if by ordinary sense in human affairs, the act complained of could otherwise be
regarded as cruelty.
Cruelty can be of two types:
a) Physical Cruelty
b) Mental Cruelty
According to Black's Law Dictionary, mental cruelty is defined as one spouses course
of conduct (not involving actual violence) that creates such anguish that it endangers
the life, physical health or mental health of the other spouse.155
In A. Jayachandra v. Aneel Kaur, mental cruelty was addressed in the light of the
norms of marital ties of the particular society to which the parties belong, their social
values, status, environment in which they live.156
In Samar Ghosh v. Jaya Ghosh, the SC held that the concept of cruelty differs from
person to person depending upon the upbringing, level of sensitivity, educational,
family, cultural background, financial position, social status, customs, traditions,
religious beliefs, human values and value system.157
So, there cannot be a definition to cruelty. It differs from individual to individual.
ALLEGATION OF MISUSE OF SECTION 498a
Arguments are made against laws for woman that they are been misused by woman.
There has been numerous allegations of misuse of section 498a. One such view was
expressed by Justice K.T. Thomas in his article 'Woman and the Law' observing that
the parents of the deceased chose to prosecute not merely the husband; those
accused included the aged father-in-law and mother-in-law and also young sisters-inlaw who were either of marriageable age or in their adolescence.158 Punishment of
such persons, if the accusation against them was made merely on a subjective
assumption, would lead to real miscarriage of justice.
153
Inder Raj Malik v. Sunita Malik, (1986) 92 CRLJ 1510.

Shobha Rani v. Madhukar Reddy, (1988) 1 SCC 105.
155 Supra note 150.
156 A. Jayachandra v. Aneel Kaur, (2005) 2 SCC 22.
157 Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
158 K.T. Thomas, Woman and Law
<http://www.thehindu.com/2004/02/19/stories/2004021902311000.htm>.
154
69
Similar view was expressed by a bench of Chief Justice H.L. Dattu and A.K. Sikri that
by roping in in-laws without a reason and for settling a score with the husband, the
false and exaggerated 498a complaints are causing havoc to marriages. 159
The 2003 Malimath Committee report on reforms in the criminal justice system also
notes, significantly, that there is a "general complaint" that Sec 498a of the IPC is
subject to gross misuse; it uses this as justification to suggest an amendment to the
provision, but provides no data to indicate how frequently the section is being
misused.160 It is argued that,
"The harsh law, far from helping the genuine victimized women, has become a source
of blackmail and harassment of husbands and others. Once a complaint (FIR) is
lodged with the Police under s.498a/406 IPC, it becomes an easy tool in the hands of
the Police to arrest or threaten to arrest the husband and other relatives named in the
FIR without even considering the intrinsic worth of the allegations and making a
preliminary investigation. When the members of a family are arrested and sent to jail,
with no immediate prospect of bail, the chances of amicable re-conciliation or
salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it
is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest
by the Police will thus be counterproductive. The long and protracted criminal trials
lead to acrimony and bitterness in the relationship among the kith and kin of the family.
Pragmatic realities have to be taken into consideration while dealing with matrimonial
matters with due regard to the fact that it is a sensitive family problem which shall not
be allowed to be aggravated by overzealous/callous actions on the part of the Police
by taking advantage of the harsh provisions of s.498a of IPC together with its related
provisions in CrPC. It is pointed out that the sting is not in s.498a as such, but in the
provisions of CrPC making the offence non-compoundable and non bailable."161
There has been many allegations by Supreme Court, politicians and activists that
woman are using their rights as a weapon against their in-laws and they are grossly
misusing the law which has been made to safeguard them.
The National Crime Records Bureau releases All India Crime rate every year and its
report titled 'Crime in India' has information on every type of crime registered. "While
the number of convictions was more or less close to 7000 cases, the number of
acquittals increased consistently. From 25,791 acquittals in 2007, this number went
up to 38,165 in 2016. The number of cases withdrawn was more or less equal to the
number of convictions. For every case that is resulting in conviction, 5 other cases are
resulting in acquittal while one other case is being withdrawn. The net result is that
only one out of every 6-7 cases is resulting in conviction."162
This data makes one think the reason behind so less conviction as compared to so
many cases been reported. The reason behind it could be false complaints made by
women against their family. These figures really make a prudent person to think to
what extend a law is getting misused. Misuse of a law is a very serious issue that
159
False Cruelty cases ruining marriages < http://timesofindia.indiatimes.com/india/False-crueltycases-under-Section-498A-ruining-marriages-SC-says/articleshow/45424532.cms>.

160 Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry
of Home Affairs, 2003 <http://www.mha.nic.in/pdfs/criminal_justice_system.pdf>chapter 16.
161 Supra note 160.
162 National Crime Records Bureau <ncrb.gov.in>.
70
needs to be taken care of. Punishment of innocent is a real miscarriage of justice.

Section 498a is mostly used as weapons rather than shields by disgruntled wives.
VICTIM TURNING INTO ABUSER
In Sushil Kumar Sharma v. Union Of India, the Supreme Court lamented that in
many instances, complaints under section 498a were being filed with an oblique
motive to wreck personal vendetta and observed that it may therefore become
necessary for the Legislature to find out ways how the makers of frivolous complaints
or allegations can be appropriately dealt with and it was also observed that by misuse
of the provision, a new legal terrorism can be unleashed. 163
The need to exercise caution in the case of arrest of the husband and his relatives has
been stressed while observing that by such a step, the possibility of reconciliation
becomes remote and problematic. In some of the cases, directions were given by the
High Courts for regulating the power of arrest and for taking necessary steps to initiate
conciliatory effort at the earliest point of time.
In the case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that
serious relook of the entire provision is warranted by the Legislature.164 It is a matter
of common knowledge that exaggerated versions of the incident are reflected in a
large number of complaints.
In Kanraj v. State of Punjab, it was held that the relatives or in-laws cannot be roped
in for the acts of the husband and they cannot be held responsible by mere
implications.165
In the case of Deb Narayan Halder v. Smt. Anushree Halder, the wife misused
section 498a and became the abuser of law. The court in this case did not find any
evidence against the husband. In similar way, for personal vendetta woman file false
complaints against their husband.166
In the case of K.Srinivas v. K.Sunita, it was held that whenever a wife institutes a
false complaint against her husband and his family members get acquitted, then in
such a case the act of the wife constitutes to cruelty which is a ground on which the
husband is entitled to file a petition of divorce from her wife.167
In the case of Savitri Devi v. Ramesh Chand, it was observed that "having seen and
experienced the enforcement of these laws for decades, time has come to take stock
and review them as thousands of marriages have been sacrificed at the altar of this
provision.168 In one metropolis alone, thousands divorce cases arising from the cases
under Section 498A/406 IPC are pending in Courts. There are equal or more number
of marriages which are in limbo. What else is it if not a social catastrophy? This should
be a matter of concern for social scientists, law-makers and Judges also."
163
Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281.

Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363.
165 Kanraj v. State of Punjab, 2000 CriLJ 2993.
166 Deb Narayan Halder v. Smt. Anushree Halder, AIR 2003 SC 3174.
167 K.Srinivas v. K.Sunita, (2014) 16 SCC.
168 Savitri Devi v. Ramesh Chand, 2003 CriLJ 2759.
164
71
CONCLUSION
From ancient years, many women were subjected to harassment for dowry. Once a
gift from the parents of the girl for her well-being has now become a compulsion and
an offer to the groom and his family in exchange of the bride. With changing times in
this modern world, greed for money has increased manifold. If the demand for dowry
is not fulfilled people even go to the extent of burning their own bride for the sake of
money.
Supreme Court held that mere demand for dowry cannot be a ground to file a case
under section 498a. Demand for dowry should be followed by harassment and cruelty.
Cruelty is a subjective term and there cannot be any specific definition of cruelty. The
courts have tried their best to define it every time they were faced with the variant
situations. But again the term being subjective in nature while the courts being
objective in nature, one cant expect a lot from the outcome. It is essential for the courts
to keep in mind that when such delicate issues are in question there should be an
exemplary punishment rather than a retributive one for the real agenda is to save the
marriage.
Again, the dowry laws, if interpreted literally, become a tool in the hands of the every
woman to threaten their husbands for every trifle domestic feud. This is now at rise
and has become a ground for divorce amongst most married woman. This section has
failed to fulfil its initial objective of safeguarding interest of woman who are harassed
by their husband and in-laws. The legislators should try to understand how the law is
being misused and abused and should frame a better one.
SUGGESTIONS
1. Bailable: The primary reason why 498a gets misused is because of its nonbailable nature. This section should be made bailable to safeguard innocent old
parents and small children from the torture of false complaints.169
2. Gender Biased: Irrespective of gender, everyone should have equal rights.
There should be similar laws to protect harassed husbands and his family
members as nowadays women are misusing the laws made for their protection.
3. Investigation by Civil Authorities: The investigation into these offences
should be carried out by civil authorities and only after his/her finding as to the
commission of the offence, cognizance should be taken.170
4. Speedy Trial: A speedy trial is the need of the hour in the cases of 498a. It will
not only ensure safety to innocent husbands and their family members but it will
also provide quick redressal to real dowry victims. It will also reduce burden on
judiciary.
5. Role of Women NGOs: NGOs should investigate complaints properly before
taking any action against the husband and his family. NGOs should not
encourage women to file false complaints for trivial matters. These
organizations should also conduct survey/research on the misuse of the act and
should educate people about its consequences. If these organizations are
169
170
Supra note 152

Supra note 168
72
found to be assisting in filing false complaints, then they should be made liable
for prosecution in the country where they are functioning.
6. Family Counselling Centres or Active role of Men NGOs : Numerous cases
of men being harassed by wife or/and in-laws have come to light from different
parts of the country. As of now there is no organization, which can really help
these harassed men and his family members, to listen their side of the story
and put their point of view in front of the government. Need of the hour is to
create family counselling centres across the country to help those aggrieved
families.
7. Interpretation of 'Mental Cruelty' : Interpretation to mental cruelty has been
done very vaguely, which leaves scope of misuse.
8. Compoundable : Once FIR has been registered it becomes impossible to
withdraw the case even if wife realizes that she has done a mistake and wants
to come back to her matrimonial home. To save institution of marriage which is
a chief concern of many judges, this should be made compoundable.
9. Waiver of physical appearance of accused in court proceedings in case
of NRIs: Physical appearance of the accused on hearing should be waved or
kept low to avoid hassles in appearing to the court, especially for NRIs. The
court should not ask to surrender passport of the husband and his family which
could cost job of the husband and his family members.
10. Penalty for filing false complaints: Whenever any court comes to the
conclusion that the allegations made regarding commission of offence under
section 498a IPC are unfound, stringent action should be taken against persons
making the allegations. This would discourage persons from coming to courts
with unclean hands and ulterior motives.
11. Punish dowry givers: If the complainant admits giving dowry in the complaint,
the courts should take cognizance of the same and initiate proceedings against
them under the relevant sections of the Dowry Prohibition Act.
12. Penalize corrupt or negligent Investigation officers: If it is apparent to the
court that a fair investigation has not been conducted by the investigation
officer, and that the husband and his family have been charge-sheeted without
proper verification of the complaint, the investigation officer should be penalized
for gross negligence of duty.
13. Registration of Marriage and Gifts Exchanged: The registration of marriages
should be made compulsory along with the requirement that the couple make
a joint declaration regarding the gifts exchanged during marriage.
14. Arrest Warrants: Arrest warrant should be issued only against the main
accused and only after cognizance has been taken.
15. Proper Investigation: No action should be taken prior to investigation.
16. NRI Issues: Unless they are proven to be guilty after the due judicial process,
NRIs should be a given a fair chance to justice by assuring them of the following
a) Permission to return to country of employment,
b) No impoundment/revocation of passport and no Interpol Red Corner
Notices,
c) No unnecessary arrests, and
d) Expeditious investigation and trial.171
171
Supra note 160.
73
This Section only provides for the remedy to woman only and it is been grossly
misused by woman. If this problem is not solved by legislation it may become a bane
for the society. Peoples trust over the judiciary will come to an end. So its high time
that this Section be amended and some changes like mentioned above should be
brought up in this law.
74
HOW STRICTLY SHOULD A TAX STATUTE BE INTERPRETED?

ANUSHKA MITTAL
GUJARAT NATIONAL LAW UNIVERSITY
ABSTRACT
It is a cardinal principle of interpretation of tax statutes that they must be interpreted
with utmost regard to the letter. Strict interpretation results in fairness for an individual
or organization that is required to pay taxes. This paper deals with the interpretation
of Section 40 of the Income Tax Act, 1961. The provision deals with such amounts
that cannot be claimed as a deduction in view of the non-payment of tax to the
authorities. However, the stance taken by the Judiciary to settle disputes related to the
same is blatantly incongruous. It has led to undue benefits being accrued to the
assesses and a mischief being created where there existed none. It has led to the
creation of a loophole for both resident and non-resident taxpayers. This is amplified
by the fact that the Judiciary is presently mulling over the subject, taking variegated
positions. Many companies can find it difficult to arrange their taxes. This has led to
the disregard for the basic cannon of taxation propounded by Adam Smith i.e.
certainty. The current examination was led to a halt by the dismissal of a special leave
petition filed in the Supreme Court against such interpretation. It must be highlighted
that the parties can resort to other legal remedies and should earnestly do so, in order
to clarify the present position.
INTRODUCTION
The effectiveness and efficiency of law is seen through its usage, interpretation and
application in society. This task is undertaken by the Judiciary while law making itself
is undertaken by the Legislature. Every year, the Parliament releases the Budget along
with a Finance Act which deals with taxation. Taxation is the bedrock of society for its
financial regulation and is also the most important source of revenue for a nation.
However, collections of taxes by the governments should not only be equitable but
also be seen to be so; or else taxation would become tantamount to imposition of
penalties for the citizens. Hence taxation must be applied and interpreted cautiously.
It has been suggested by the Supreme Court of India in Calcutta Jute Manufacturing
Co. v Commercial Tax Officer172 that in case of interpreting a taxing statute, one has
to look into what is clearly stated. There is no room of searching the intentions or
presumptions.
This paper deals with the issue of interpretation of Section 40 of the Income Tax Act,
1961 (ITA for short), the way in which it is currently read and the problems related
thereunder.
Income tax is a form of direct tax which accounts for 12%173of the revenue for the
government. India follows the source based taxation system where there are five
heads of income i.e. five sources from which income is derived and tax is collected.
The five sources are: Salaries, Income from House Property, Capital Gains, Profits
172
Calcutta Jute Manufacturing Co. v. Commercial Tax officer, AIR 1997 SC 2920
Press Information Bureau, Government of India, General Budget, 2013-2014, available at
http://pib.nic.in/archieve/others/2013/feb/d2013022801.pdf last seen on 20/09/2015
173
75
and Gains from Business or Profession and Income from Other Sources. The heads
of income are broad-based so that income in various forms and from various sources
can be taxed and collected. Various deductions and exemptions are also available.
These are tax benefits that individuals can rightfully claim to reduce their tax liability in
a legitimate way thereby mitigating tax. However there are certain conditions to claim
such deductions. If these are not complied with, the provisions will not be applicable
to mitigate tax.
This paper focuses on the conditions imposed by Section 40 in terms of deductions
that can be claimed on income from Profits and Gains from Business or Profession
(Section 28 to Section 44 DB) and the interpretation of such terms. Section 40 (a) (i)
and Section 40 (a) (ia) which pertain to payments (usually made for business
purposes) made by a resident taxpayer to a non-resident and a resident respectively,
are the subject of scrutiny.
STRUCTURE OF SECTION 40
Section 40 shall be dealt with, in two parts relating to non- residents and to residents.
India follows a system of source based taxation wherein all income derived or sourced
from India must be taxed. This is termed as Tax Deduction at Source (TDS) for
residents and Withholding Tax (WHT) for non-residents (which are paid by the
residents with whom these non-residents deal). The legislative intent behind the
provision for withholding tax and disallowance of deductions on non-payment of the
same is to increase tax revenue from investments undertaken within the territory of
India.
It is important to explain the basic concept related to the mechanism of payment of tax
in an Assessment Year. The income earned in a Financial Year is taxed in the
Assessment Year. A Financial Year or Previous Year is one in which activities are
carried out and income is earned. Tax of an Assessment Year is paid on 31 st March
of that year. The deductions that are claimed on such income when a return is filed
under Section 139 can be disallowed when such tax is not deducted by the payer.
The provision for deduction under Section 40 (a)(ia) of the Income Tax Act, 1961 isNotwithstanding anything to the contrary in sections 30 to 38, the following amounts
shall not be deducted in computing the income chargeable under the head "Profits and
gains of business or profession",
(a) in the case of any assesseethirty per cent of any sum payable to a resident,
on which tax is deductible at source under Chapter XVII-B and such tax has not
been deducted or, after deduction, has not been paid on or before the due date
specified in sub-section (1) of section 139.
Here, the term payable has been interpreted rather obtusely by the judiciary and is a
contentious matter at present.
The case of DCIT v MRF Limited, Chennai 174 succinctly explains the series of case
laws that have led to the present position and the reason for adoption of such a
position. This case is relevant as it based its decision on the current position for
residents and extended the benefit to a non-resident. It states that the High Court of
174
DCIT v. MRF Limited, Chennai I.T.A. No. 1985/Mds/2011
76
Allahabad in the case of CIT v. M/s. Vector Shipping Services (P) Ltd. 175 upheld the
decision of the Special Bench of the Income Tax Appellate Tribunal (hereinafter
Tribunal) in the case of Merilyn Shipping and Transport v. ACIT 176 as good law. The
Tribunal in the said case held that the provisions of section 40(a) (ia) do not apply to
those amounts which have already been paid by the assessee before the close of the
relevant previous year. The High Court of Calcutta in the case of CIT v. Crescent
Export Syndicate177 and the High Court of Gujarat in the case of CIT v. Sikandarkhan
N. Tunvar178 have held that the disallowance under Section 40(a) (ia) does not
distinguish between amount 'paid' and 'payable'. Both the High Courts have not
approved the principle laid down in the case of Merilyn Shipping and Transport v.
ACIT179.
Thus all the cases must be analysed to determine
How has payable been interpreted to mean paid?

What are its effects?
ANALYSIS OF CASE LAWS

It must be clarified at the first instance that the legislative intent behind Section 40 is
collection of tax at source so that no assessee can escape taxation and claim benefits
of deduction. This provision checks the default in payment of taxes as non-payment
will disentitle the assessee from claiming deduction, effectively putting it on the radar
of the Income Tax Department.
The reasoning provided in CIT vs. M/s. Vector Shipping Services180must be separated
from its ratio decidendi and the precedent that it followed. According to the facts of the
present case, there were two companies- M/s Mercator Lines Ltd. (Mercator) and M/s
Vector Shipping Services (P) Ltd. (Vector). Both the companies were residents of India
according to Section 2 (42) and Section 6 of the Income Tax Act, 1961. Salary was
paid by Mercator to the employees. The appropriate tax was also deducted by it. This
was possible due to a Memorandum of Understanding signed between the two
companies. This fact was recognised by the Commissioner of Income Tax (CIT), the
Appellate Tribunal of the CIT and the Income Tax Appellate Tribunal. The Revenue
department contended that the deduction claimed by Vector must be disallowed as
tax has not been deducted at source by the assesssee according to Section 40(a) (ia).
The provision is worded as
thirty per cent of any sum payable to a resident, on which tax is deductible at source
under Chapter XVII-B and such tax has not been deducted or, after deduction, has not
been paid on or before the due date specified in sub-section (1) of section 139
This has recently been amended to widen the scope of taxation and its consequent
benefits by replacing the words any interest, commission or brokerage, rent, royalty
etc. with Chapter XVII-B. 181
175
CIT v. M/s. Vector Shipping Services (P) Ltd., [2013] 38 taxmann.com 77 (Allahabad)
Merilyn Shipping and Transport v. ACIT, [2012] 20 taxmann.com 244 (Visakhapatnam)
177 CIT v. Crescent Export Syndicate, [2013] 33 taxmann.com 250 (Calcutta)
178 CIT v. Sikandarkhan N. Tunvar, [2013] 33 taxmann.com 133 (Gujarat)
179 Supra note 178
180 Supra note 177
181 S.25 B, Finance Act 2014
176
77
The High Court of Allahabad and all other tribunals held that deduction cannot be
disallowed as payments must remain payable. If they have already been made to a
resident then no deduction can be disallowed. Basically, if amounts have been paid to
a resident in the form of salaries etc. then TDS provisions are inapplicable as they
apply only to payments which remain payable at the end of the assessment year. Since
all such payments had been made within the year, TDS provisions are inapplicable
and no deduction can be disallowed!
There are certain glaring inconsistencies in the said case. Firstly, tax had been
deducted at source and paid to the Revenue Department by Mercator. This was
noticed by the Court and yet was not recognised. The Court did not base its finding on
the same reason. Another fallacy is the distinction between paid and payable itself.
This distinction between paid and payable was made for the first time in Merilyn
Shipping and Transport v. ACIT182.
Merilyn Shipping and Transport v. ACIT extensively discussed the difference between
payable and paid and also discussed the intention of the Legislature. Section 40(a)
(ia) was added by Finance Act 2004 to augment tax collection. The intention was also
to plug revenue leakages and enforce compliance with the TDS provisions. 183
To determine the legislative intent, the Tribunal looked into the difference in words
used in the Finance Bill 2004 and the subsequent Act. The word payable used for
payments to a contractor replaced the words credited or paid which were used in the
Bill. The Tribunal opined that this change implied that the Legislature wanted only
payments that were due to be paid on 31st March of the Financial Year to be liable to
tax deduction.
The Tribunal tried to ascertain the meaning of the words- paid and payable. Section
43(2) of the Income Tax Act, 1961 defines paid as actually paid or incurred according
to the method of accounting upon the basis of which the profits or gains are computed
under the head "Profits and gains of business or profession". The definition of payable
was cited as that which must be paid or which is due to be paid. Thus any payment
that is incurred is payable yet it must also be understood as paid according to the Act.
The Revenue Department or the Respondent raised two important questions on the
observations made by the majority of the Tribunal. Firstly, an interpretation excluding
the amounts that have been paid in the year would render the addition of such
provision (by the Finance Act 2004) otiose and secondly, in the cash system of
accounting, any amount is credited or debited the moment the liability to pay becomes
certain i.e. once the payment is conceived to be made, it is put into the book of
accounts and is considered to be made. In such a system of accountancy, the
amounts will be paid once they are conceived to be paid and no amount would be left
payable. To such objections raised by the Respondent, the Tribunal answered that
different provisions envisage different treatment which is the intent of the Legislature.
It was exemplified by Section 194 L and 194 LA where tax must be deducted at the
time of payment. The Tribunal opined that since a specific treatment was prescribed
by the Act, payable must be strictly interpreted to provide the general meaning. The
Tribunal considered Section 40 (a) (ia) to be a deeming provision or a legal fiction. It
182
183
Supra note 178

Finance Bill, 2004 (passed)
78
stated that Section 201 takes care of the tax to be collected in the hands of the payee
and other TDS provisions under Chapter XVII-B.
A point of observation must be made here. Section 40 is a penal provision184 made in
furtherance of tax collection. If some income remains out of the tax net of Section 201
then Section 40 comes into place i.e. it is a check on the taxation and acts as a
safeguard so that taxable income doesnt remain untaxed. Thus Section 40 comes
into effect only when Section 201 lapses. It is a legal fiction because income which is
otherwise not taxable becomes liable to taxation due to non-deduction of tax at source
by the assessee or the payer. Section 40 disallows claims of any expenditure and
includes them in the component of income liable to be taxed.
The views of High Courts have unfortunately been variegated. The Calcutta High Court
in the case of CIT Vs. Crescent Export Syndicate185 explained that the key words used
in Section 40(a) (ia) are on which tax is deductible at source under Chapter XVII B.
If the question is which expenses are sought to be disallowed then the answer is
those expenses on which tax is deductible at source under Chapter XVII B. Once
this is realized nothing turns on the basis of the fact that the legislature used the word
payable and not paid or credited. Unless any amount is payable, it can neither be
paid nor credited. If an amount has neither been paid nor credited, there can be no
occasion for claiming any deduction.
This observation by the Court sums up all the tests and proofs that were used by the
Tribunal in Merilyn Shipping case to adjudge in the favour of the assessee. A major
test used by the Tribunal was that since provisions in Chapter XVII- B delineated
specific treatment that must be given to various payments, payable cannot include
paid. All provisions provide how and when a particular payment must be treated, it
specifies who bears the responsibility of tax liability etc. However, the same test was
employed by the Calcutta High Court to overrule the observations made by the
Tribunal. It treated all expenses in Chapter XVII-B to be of the same nature in the
sense that their treatment is same in view of Section 40 as it treats all provisions
together. This interpretation implies the observation that payable includes paid as
unless an amount is payable, it cannot be paid. This interpretation is also strengthened
by the latest amendment to Section 40 (a) (ia) by the Finance Act, 2014 where the
different kinds of payments have been replaced by Chapter XVII-B.
THE CURRENT STATUS
Various attempts were made by the Income Tax Department to clarify these issues. It
released CBDT Circular No. 10/DV/2013186 to clarify its position. In 2014, it filed a
special leave petition in the Supreme Court against the order of the High Court of
Allahbad in CIT v M/s Vector Shipping (P) Ltd. which was dismissed by a non-speaking
order. 187 It has been held in a catena of judgements that dismissal of a special leave
petition by a non-speaking order is not good law under Article 141. The Supreme Court
in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and
184
Supra note 181

Supra note 180
186 Circular on Section 40 (a)(ia) of the Income Tax Act, 1961 reg., CBDT Circular No. 10/DV/2013
(16/12/2013) available at http://www.itatonline.org/info/wpcontent/files/CBDT_Circular_TDS_Disallowance.pdf last seen on 18/09/2015
187CIT v M/s Vector Shipping (P) Ltd., CC No(s). 8068/2014
185
79
Anr.188 held that dismissal of special leave petition by the Supreme Court by a nonspeaking order of dismissal where no reasons were given does not constitute res
judicata.. The future course of action available to the petitioners is a review petition in
the High Court under Order 47 of the Code of Civil Procedure, 1908. This was
explained by the Supreme Court in Kunhayammed & Ors. Vs. State of Kerala & Anr.189
as where the special leave petition is dismissed, the aggrieved party is not deprived
of any statutory right of review, if it was available and he can pursue it. It may be that
the review court may interfere, or it may not interfere depending upon the law and
principles applicable to interference in the review. But the High Court, if it exercises a
power of review or deals with a review application on merits - in a case where the High
Court's order had not merged with an order passed by the Court after grant of special
leave - the High Court could not, in law, be said to be wrong in exercising statutory
jurisdiction or power vested in it
SITUATION OF NON-RESIDENTS
The provision related to payments made by residents to non-residents is:
Notwithstanding anything to the contrary in sections 30 to 38, the following amounts
shall not be deducted in computing the income chargeable under the head Profits and
gains of business or profession,
(a) in the case of any assessee
(i) any interest, royalty, fees for technical services or other sum chargeable under this
Act, which is payable,
(A) outside India; or
(B) in India to a non-resident, not being a company or to a foreign company,
on which tax is deductible at source under Chapter XVII-B and such tax has not
been deducted or, after deduction, has not been paid during the previous year, or in
the subsequent year before the expiry of the time prescribed under sub-section (1) of
section 200. 190
The aforementioned assessee can be a resident or non-resident (defined under
Section 2(7)).
This clause is concerned with the situation where residents pay income to nonresidents in the form of interest, royalty, fees for technical services etc. Deductions
can be claimed under Section 30 to Section 38, on such payments only when taxes
have been paid according to Chapter XVII- B (it deals with Withholding Tax liability of
residents for non-residents). On a plain reading, it is quite clear that the deductions
188Workmen
of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and
Anr.,(1978)IILLJ161SC
189 Kunhayammed & Ors. Vs. State of Kerala & Anr., AIR2000SC2587
190S.40(a) (i) INCOME TAX ACT, 1961
80
will be disallowed if taxes have not been deducted or after being deducted, have not
been paid before the expiry of the time period.
Another contradictory view with respect to taxation of non-residents was provided by
the Income Tax Appellate Tribunal in Metro & Metro v. Additional Commissioner of
Income-tax191. It was held that the provisions of Section 40(a)(i) cannot be interpreted
in such a manner so as to restrict the scope of the provision to only amounts remaining
payable at the end of the year, because, apart from the difference in wording of Section
40(a)(i) vis-a-vis Section 40(a)(ia) and other factors, such an interpretation will make
the section redundant and it is one of the fundamental principles of interpretation to
interpret in such a manner as to make it workable rather than redundant, and to
understand the words with reference to the subject-matter.
Interestingly, the post interpretation scenario for residents is being extended to nonresidents without paying heed to the judicial precedents. However, the interpretation
of payable in Section 40 (a) (i) was never utilised to understand the taxation of
residents and solve the dilemma of paid and payable. The four major cases
discussed above discussed the Supreme Courts view in Tube Investments Ltd. v
ACIT and Ors.192 It is a case of immense significance as it decided the constitutional
validity of Section 40 (a) (ia). However it did not contribute towards solving the problem
at hand. It is true that it doesnt deal with the aspect of legislative intent in changing
the terms used in the Bill and the Act and the subsequent interpretation thereof. The
Supreme Court upheld the constitutional validity of Section 40 (a) (ia) and iterated that
since Section 40(a) (i) has been working fine for more than two decades, the challenge
to a provision for residents is unnecessary.
In my view, the point to be noted here is that the interpretation of payable must have
been based on Section 40(a)(i) which is pari materiae to Section 40(a)(ia) except that
the former deals with payments to non-residents. Interpretation of Section 40(a) (ia) is
affecting the disputes related to Section 40(a) (i) while the latter has been in existence
before the former! It is important to note that such an interpretation was not provided
to Section 40(a) (i). The logical and speculative reasons for the same are twofold.
Firstly, such an issue mustnt have come up before the courts but the change in the
provision related to the residents have allowed non-resident to seek the benefit.
Secondly, the courts took such a view for the residents because of the difference in
the Bill and the subsequent Act. If that is so, then can such an interpretation be
extended to the non-residents? This question is important in light of the inference that
it is not the legislative intent to extend such benefit to the non-resident. This can be
deduced form the fact that the word payable pertaining to non-residents was never
interpreted as such before the contentious interpretation was provided to the residents.
Interestingly, the application of literal rule by the Judiciary in Teja Constructions v
ACIT193 has led to a mischief which must be rectified as soon as possible. This case
must be distinguished on facts as it did not lay down the difference between payable
and paid as the ratio. The deletion of disallowance that it adjudged would apply only
to particular cases and cannot be held to be good law. It elaborately explained that
amounts under Chapter XVII-B have specific provisions for TDS and Section 40(a) (ia)
cannot be applied. If that is so then what is the penalty for non-compliance with the
191
Metro & Metro v. Additional Commissioner of Income-tax, [2013] 39 taxmann.com 26 (Agra - Trib.)
Tube Investments Ltd. v ACIT and Ors., [2010]325ITR610(Mad)
193 Teja Constructions v. ACIT [2010] 39 SOT 13 (Hyd)(URO)
192
81
provisions of Chapter XVII-B? Section 201 is a penal provision but so is Section 40(a)
(ia). The explanation is as follows:
Tax is deductible under Sections 193, 194A, 194C, 194H and 194J either, at the time
of payment or at the time of giving credit to the recipient. However, Section 40(a) (ia)
is applicable only when in respect of TDS defaults, amount is payable. If amount is
actually paid and tax is not deducted under the above section, Section 40(a) (ia) is not
applicable. This can be explained using the example of Section 194C. The provision
of Section 194C mentions two different situations, for deducting tax at source.. (a)
at the time of credit of such sum to the account of the contractor and (b) at the time of
making payment to the contractor. Explanation 2 to Section 194C further elaborates
what is the meaning of credit to the account. It also bifurcates the amount paid and the
amount payable which is credited to the account. Therefore, for deduction of tax at
source, there is a specific mention in the provision itself that tax is to be deducted at
source even at the time of crediting the amount to the account. But Section 40(a) (ia)
mentions only the word 'payable. The said provision does not include the payments
made to the payee. It has a specific purpose. The amounts payable arise out of
adjustment entries and, therefore, there is a need to have a control over the amount
payable. However, no such control is required in respect of the payments already
made. Therefore, the Legislature clearly, meant to cover such cases where the
adjustment entries were made and the amounts shown as payable and not where the
payments were already made.
The Tribunal applied the literal rule of construction to conclude that every provision
metes out specific treatment to a particular kind of payment so Section 40 cannot be
held to be applicable to all kinds of payments mentioned under Chapter XVII-B. It is
hoped that this stance would be discussed by the Judiciary in light of the Finance Act
2014.
APPLICATION OF THE TOOLS OF INTERPRETATION
The Madras High Court noted in the case of A.S.Krishna v. State of Madras 194 as: It
would be quite an erroneous approach to the question to view such a statute not as
an organic whole, but as a mere collection of sections then disintegrate it into parts,
examine under what heads of legislation those parts would severally fall, and by that
process determine what portions thereof are inter vires and what are not. Thus,
section 40(a) (ia) should not be viewed independently and must be considered along
with other provisions.
The Gujarat High Court in CIT v. Sikandarkhan N. Tunvar195 extensively discussed the
issue of Section 40(a) (ia) using the mischief rule. The Court observed that the
comparison of the two sets of provision viz. the Bill and the Act cannot lay down the
reason why certain language was used in the Draft Bill which was not ultimately
enacted in the legislation. The Bill cannot be held to be the available common law or
statute before Section 40(a) (ia) was enacted.
It also commented on the application of the principle of deliberate omission which the
courts use. This principle is mainly used when an amendment is brought about. This
enables the courts to interpret the amendment after examination of the previous
provision. Another application of this principle is when the language of the legislation
194
195
A.S.Krishna v. State of Madras, AIR 1957 SC 297

Supra note 181
82
is compared with some other analogous statute or language which could have been
used by the Legislature if it had a different intention in mind.
The incessant benefit that is being derived by the assessees when they make
payments to resident and non-residents before 31st March of the Financial Year
creates a mischief. It provides them a way to reduce tax liability exorbitantly by
claiming deductions without deducting tax. It is a principle of statutory interpretation
that a provision must be so construed that absurdity and mischief is avoided. 196
COMPARISON WITH PEOPLES REPUBLIC OF CHINA
India and China are non-OECD, BRICS nations which share similarities in their
taxation regimes and are usually grouped together for comparison with other
jurisdictions. The tax structure of China also portrays that deductions can be claimed
only when the tax has been paid wherever required. However, the drafting of the
provision makes it utmost clear.
The Corporate Income Tax system of Peoples Republic of China highlights that it also
provides deductions against certain expenditure provided,
(a) Such tax, as is required is not only payable but actually paid by the assessee
(b) Tax certificates evidencing such payments are shown
Foreign income tax paid as mentioned in Article 23 of the Corporate Income Tax Law
refers to taxes in the nature of corporate income tax that are payable, and actually
paid, on income derived from sources outside the Public Republic of China in
accordance with the foreign tax laws and related regulation
It is required that when an enterprise claims a credit against tax payable (in
accordance with Articles 23 and 24 of the CIT Law), it shall provide relevant tax
payment certificates for the corresponding year issued by the foreign tax authorities.
197
Such wording clarifies the scope of payable globally and can be used by the Indian
Judiciary to understand about this universal feature of deduction and taxation.
It must be noted that if the company has already paid tax in a foreign jurisdiction then
it must show the evidence of such payments to the tax authorities, otherwise it cannot
derive the benefit of deduction of the taxable amount.
CONCLUSION
The various interpretations of the High Court pose a threat to the Revenue Department
if mercantile system of accounting is used. It is a system according to which the claims
which are incidental to the business are allowable on accrual basis even though they
have not actually been paid. The case of Srikakollu Subba Rao & Co. v. Union of
India198 explained that in the mercantile system of accounting, businessmen are
entitled to claim deduction of liabilities for expenses incurred by them although they
remain unpaid just as they account for the profit and gains accruing in the year of
account, although they may not have been actually received.
196
KP Varghese v. ITO, Ernakulam and Anr. 1981 AIR 1922

Article 23, 24, Chapter III, CIT available at http://www.fdi.gov.cn/1800000121_39_3339_0_7.html
198 Srikakollu Subba Rao & Co. v. Union of India, 1988 173 ITR 708 AP
197
83
However, this position can be changed after the new interpretation to Section 40. Thus
the Revenue Department should file a review petition in the High Court as soon as
possible and explore this avenue to undo an error.
84
THE PRECARIOUS SHACKLES OF PERSONAL LAWS IN INDIA AND

THE EMINENT NEED FOR UNIFORMITY
ASTHA SATAPATHY AND SUBRATA SATAPATHY
SYMBIOSIS LAW SCHOOL
SYMBIOSIS INTERNATIONAL UNIVERSITY, PUNE
Abstract
India, since its independence, with an idea to uphold and envisage unity in diversity,
has provided the leeway for the personal laws of all religions to function in their
respective domains. However the disparity within these laws has been time and again
discussed cornering on the aspects of constitutionality and human rights. While the
Constitution is the supreme law of the land, the debates brimming on the aspects of
personal laws have brought the ideals of secularism, religious freedom, liberty and
equality in conflict which each other. The notion of Uniform Civil Code has served the
only way out of this predicament. However the process of its enactment is yet to
commence amidst the hostilities over communal imbalance. The paper aims at
presenting the contemporary issues and weighing the possible solutions. The study is
limited to the national aspects and highlights the shortcoming in the existing laws
which create the dire need for reform.
Introduction
The Indian soil presents the most exquisite diversity. India is the birthplace of several
religions, which have followed their own set of laws which came to be tagged together
as the personal laws. The culmination of the country as an independent nation was
the result of de-colonisation which was accompanied with the unfortunate partition of
the subcontinent along religious lines, the scars of which get deepened due to
communal intolerance which sprouts from apprehension and insecurity. Contemporary
India has adopted a legal system which is an amalgamation of both native and foreign
rudiments in the best interests of its population. The Constitution of India which is
enacted by the People of India is a secular constitution which places all the diverse
groups on an equal footing. The personal laws therefore enjoy a unique distinction and
the organs of the government have time and again refrained from working out a drastic
reform against the popular will. However the stark differences in the personal laws
have off late stimulated the debates pertaining to gender equality.
Historical Overview
A flashback of the history unfolds the trail back into the ancient times, where the
customs and usages formed the sole basis of regulation. These customs and usages,
owing to the overwhelming acceptance and significance have been preserved even
under the codified laws, which in certain cases apply only to the exception of such
customs. However the customs today are validated against the touchstone of
reasonability, uniformity and public policy. Prior to the colonial rule, India had
witnessed a massive shift from a legal system which was predominantly Hindu-based
to an Islamic based legal system during the Mughal Rule. The Hindu legal system has
pioneered the development of legal systems across the world and according to Mayne
85
is the oldest pedigree of any known system of jurisprudence.199 In the pre-Mughal era,
the hierarchy of courts as given under the Brihaspati Smriti postulated the family courts
at the root level and the king at the apex level. The Mughal Era expounded the idea of
justice as envisaged under the Islamic law.200 The administration of justice came to be
regarded as a religious duty by the king. The administration of personal laws of the
non-Muslims was constricted to the civil domain, while the criminal law was Islamic in
nature. The medieval period witnessed an unstable judicial system which kept
moulding to suit the changing needs of the East India Company.
The profound influence of the common laws reformed the laws to significant extent;
however, the personal laws remained relatively untouched. The colonisers never
purported to change the personal laws until the outbreak of the 1857 Revolt, except
the Hindu Widow Remarriage Act, 1856 and the Caste Disabilities Removal Act, 1850
in the area of succession. Unlike the laws relating to Hindus and Muslims, the laws
relating to other religious minorities remained highly under-developed and
unsatisfactory. In view of strengthening its roots post the Sepoy Mutiny, the colonisers
played an active role in enacting marriage and succession laws for the Parsis (Parsi
Marriage and Divorce Act, 1865, now repealed), Christians (Indian Divorce Act, 1869;
Christian Marriage Act, 1872) and the secular groups (Special Marriage Act, 1872,
now repealed). In the domain of Succession the Indian Succession Act, 1865 was
enacted.201 The Hindu and Muslim personal laws did not witness any landmark
development due to the reluctance of the colonisers which specially cornered around
the assertion of the divine origin of these laws.
Personal Laws vis--vis Secularism in India
Secularism is the dogma of treating all religions equally. Upholding this transcendental
ideology, India has enclaved the personal laws as a distinct set of rules which are
immune to the frequent changes. Since the enactment of the Constitution, the personal
laws have been drawn under scrutiny as being violative of the Right to Equality as
encompassed in Article 14 of the Indian Constitution. However the courts have upheld
the constitutionality and further vested the powers with the states to amend the
personal laws in consonance with the customs and ideologies prevalent in different
parts of the country. In an early case, the judges, a Hindu and a Muslim, both
distinguished in their respective fields were sanguine about the system of personal
laws.202 The early debates over enacting a UCC were silenced primarily due to the
unwillingness of the Muslim minority to relinquish the Sharia. Subsequently the
personal laws in 1955-56 were amended to cull out the disparate provisions. Early
amendments centred around the Hindu code which diluted the Dharmashastric basis
of the Hindu Law by introducing the concept of divorce, highlighting nuclear families
and endorsing the equality of varnas and sexes. While marriage and divorce are the
predominant domains under the personal laws, these laws encompass adoption,
guardianship, succession and religious institutions.
199
K. B. Aggarwal, Family Law in India, Pg. 39 (Kluwer Law International, 2010)

Evolution of Law: A short history of Indian legal Theory, (May 13, 2011),
http://www.legalindia.com/evolution-of-law-%E2%80%9Ca-short-history-of-indian-legaltheory%E2%80%9D/
201 K. B. Aggarwal, Family Law in India, Pg. 38 (Kluwer Law International, 2010)
202 State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84
200
86
Scope and Loopholes

The disparate personal laws on the sole basis of religion have sown the seed for intercommunity conflicts; however the intra-religion dissension is also prevalent. This has
further stimulated the debates over the need for a UCC which has now become a
political opinion rather than a social need. While proponents of the code submit that
such a code is consistent with the constitutional ideals, the opponents proclaim the
deep-rooted belief of supremacy of each religion and their distinctive nature coexisting in the same domain.
Shah Bano Case
This landmark judgement dramatically changed the way of viewing the need for a
uniform civil code. Shah Bano, was a muslim lady who had been divorced after forty
three years of marriage, through the unilateral pronouncement of triple talaq. Being
solely dependent on her spouse for her survival, the divorce had usurped her life and
she was doomed. She filed a suit claiming maintenance under S 125 of the Criminal
Procedure Code from her former husband. While the Trial Court allowed a paltry
amount which was then incremented by the High Court, the issue was finally brought
forth the Apex Court where the husband in his defence, took recourse to S 127 of the
CrPC which encapsulated the exception to the impugned issue, where no further
demands could be made if the entire amount in accordance to any customary or
personal law has been paid. As per the submission of the husband, the amount of
Mehr and the maintenance during the period of Iddat being satisfactorily paid, his right
to further maintenance did not arise. The Supreme Court by the application of
harmonious construction tried to strike a balance between the personal and the
codified law. This step by the Supreme Court imprecated widespread condemnation.
The Supreme Courts incessant efforts at interpreting the Sharia was seen as a
deliberate step to subvert the Muslim personal law in favour of primarily Hindu-based
Indian Code of criminal procedure.203 The Supreme Court has decreed in favour of
maintenance for women beyond the period of Iddat in two of its previous judgements
however these judgements did not witness a similar hostile reaction from the Muslim
diaspora.204 Perhaps the reason could lien in the difference in the approach of the
bench of judges; while the authors of the former weighed S 127 against the personal
laws to arrive at a rational decision and refrained from making any statement about
the Sharia, the latter interpretation presents a normative understanding and
interpretation which was thus resisted.
Subsequently, the Rajiv Gandhi government was forced to work out its way with a new
Muslim Women Protection Act 1986 which curtailed the judgement and reinstated the
position of law as envisaged under the Muslim personal law.
Inherent Skewness of the Personal Laws
The primary arguments about the need for the UCC have narrowed down on this
intrinsic bug under every personal law: while all the customs and the ancient tales
portray the women as pure and supreme form of Gods creation, ironically, the
personal laws have pushed them to depravity with no space to incorporate a redressal
for their status and respect amidst the community:
203
Gerald James Larson, Religion and Personal Law in Secular India: A Call to Judgement, Indiana
University Press (2001), Pg. 05, available at
http://marcgalanter.net/Documents/papers/scannedpdf/personallawsystems.pdf
204 Bai Tahira v. Ali Husain Fissalli AIR 1979 SC 362; Fazlunbi v. K Khader Vali AIR 1980 SC 1730.
87
Marriage: While most of the personal laws have unilaterally consented to the stringent
measures for polygamy under marriage, the Muslim personal law is earmarked for
having still preserved erstwhile polygamy up to 4 wives. This has proved to be a
slippery ground with many cases of feigned conversions in order to reap the benefits
of this provision under the Muslim law. The Sarla Mudgal Case205 is an eye-opener
which dealt with the concern over such conversions and deemed them void as well as
held that the offenders would be punished for bigamy under the personal laws which
was applicable to them before the impugned conversion. The case tagged four
petitions filed with similar issues relating to the effect of conversion and the purported
second marriage under the newly-adopted Muslim law. This decision was called for
review in the year 2000, due to the growing concern of Islamic groups over the
conflicting stand of law, which was clearly culled out in the subsequent judgement and
the Supreme court further adopted an amicable view by refusing to comment over the
need for UCC and leaving the question to be answered by the Parliament.206 In 2001,
Julekhabai, a poor Muslim woman sought changes in the divorce provisions as well
as the provision for polygamy under the Muslim Law. The Supreme Court refused to
entertain the petition citing its incapacity to decide on the matter.207 She had sought
equality in terms of divorce as sought under the Dissolution of Marriage Act 1939.
Similarly with the novel intention to retain the cohesion amidst the diverse Hindu
Community the legislators had attributed authoritative positions to the customs under
these communities which were to be validated on the touchstones of reasonability and
fairness. However over the passage of time such observation of customs has only
fragmented the population.
Divorce: The contentious provisions of Talaq, Ila, Zihar, Lian, Khula etc. which
prioritise the mens unilateral wish and right to divorce their wives have been
condemned and demand for striking them down have become a scene yet the
Parliament and the State has turned a deaf ear to them apprehending communal
tensions. The areas regulated under the personal laws are enumerated under the
Concurrent List under the Seventh Schedule which means both the state and the
central legislatures have a power to introduce a change. The Muslim women would be
the biggest beneficiaries if the laws for divorce were universalised as the personal law
have jeopardised the plight under the community and curtailed their needs.
However after decades of predicament, the Supreme Court has adopted the judicial
activism to aid the evolution of the Muslim personal law and cull out the multiple wives
provision which has added to the precarious ordeals of the women. The bench
consisting of A K Goel and A R Dave opined that such practises relating to marriage,
divorce, inheritance and adoption were not a part of religion and hence can be
regulated. While citing an earlier judgement of the same Court, they mentioned that
such practise of polygamy is injurious to public and moral health of the society and
hence it should be scrapped the same way as Sati was abolished.208
205
Sarla Mudgal v. Union of India, 1995 SCC (3) 635.

Lily Thomas v. Union of India, (2000) 6 SCC 224.
207 Nilanjana Bhaduri Jha, Personal Laws Skewed Against Women, The Times of India, Aug. 2, 2003,
also available at http://timesofindia.indiatimes.com/india/Personal-laws-skewed-againstwomen/articleshow/108786.cms
208 Amit Anand Choudhary, Supreme Court Asks If Sati Can Be Banned, Why Not Multiple Wives
Under Muslim Personal Law?, Oct. 29, 2015, http://www.indiatimes.com/news/india/supreme-courtasks-if-sati-can-be-banned-why-not-multiple-wives-under-muslim-personal-law-246749.html
206
88
The laws for the Christians for long suffered from similar inadequacy where the male
members were allowed divorce merely on adultery simpliciter whereas the women had
to prove an additional ground along with adultery to obtain divorce. In Ammim v. Union
of India209 the provisions of the Indian Divorce Act was adjudged as being
discriminatory of the Constitutional provisions under Article 14, 15 and 21. Final effect
of the judgement terminated with an amendment being brought about in 2001 which
marked the consonance between the personal laws in India.210
Inheritance: The inheritance laws seemed to be bestowed in bounty in favour of the
male heirs of the Hindu undivided family, and it was only in 2005 with the passage of
the Hindu Succession Act, women were given a share in the ancestral property.
However, it was only recently when the air about its extent of applicability has been
cleared in the judgement of Prakash v. Phulavati211. Furthermore, a woman who is
abandoned by her family cannot claim maintenance from the natal family as a matter
of right. The married woman cannot become the coparcener of her husband in the line
of inheritance.212 Similarly under the Muslim law the women have subordinate rights
of inheritance. The share of a male of the same degree is twice that of a female. The
Indian Succession Act 1925 which was modified in 1997 does not recognise the rights
of women to inheritance. The law still needs to incorporate the ingredients of the
modern society cull out the inherent gender bias. What draws our attention is the
requests from the Christian community for a uniform civil code are rather innovative.
Father Vallamattom, a Christian priest debated the validity of S 118 of the Indian
Succession Act which restricted the Christians from donating their property for
religious and charitable purposes.213
Adoption: This arena has been the most conservative aspect where the custom and
sacred ideals exercise a strong hold. While the Islamic law does not recognise the
concept of adoption, the view adopted under the law for Christians, Parsis and Jews
is highly constricted along the lines of mere guardianship which does not vest equal
status on the adopted child with that of a biological child. The Hindu law seems to the
reformist law which vest equal rights on the adopted child; however these laws get
skewed along societal lines which seemed to portray the age-old inclination for male
child.214 Moreover a Hindu woman cannot adopt a child in her own name nor does
she have guardianship rights over a child who is above five years of age.
Regardless of the community, religion, etc. patriarchy has been the root of all the
personal laws hence these laws are intrinsically skewed against women and female
child. With the contemporary world bracing itself with reformed ideals rights and
conscience, the need to evolve these personal laws in concurrence with the changing
legal systems has become inevitable. In the previous year the Supreme Court had
reminded the Union of its obligation to enact UCC under Article 44 thrice. However the
overpowering resistance has only made the scenario worse. While BJP adorned it
Electoral manifestos in 2014 with reformist ideas about enacting the UCC, the coalition
209
AIR 1995 Ker 252

Dr Paras Diwan, Family Law, Pg. 143-44 (Allahabad Law Agency, 10th Edition, 2013)
211 (2016)2 SCC 36
212 R D Sharma, Personal Laws need Immediate Reform, Oct. 01, 2015,
http://www.thestatesman.com/news/law/personal-laws-need-urgent-reform/93925.html
213 John Vallamattom v. Union of India, (2003)
214 Jha, supra note 207.
210
89
form of democracy has forced this propaganda to take a back seat due to disapproval
by other politicians.
Recommendations:
Uniform Civil Code: The Step Ahead
The personal laws find their premise on varying origin, philosophy and application.
Unlike the Indian Penal Code which lays down the criminal code applicable to all the
citizens irrespective of the caste, domicile or region; there arises a constraint and
confusion with regards to the different laws applicable to different segment of people.
This impediment serves as the epicentre for the exigent need for UCC.
The immediate query that surfaces post this terminology is what is the etymology and
importance of the word. As enshrined in the DPSP of the Constitution of India, Article
44 declares that the State shall endeavour to secure for the citizens a uniform civil
code throughout the territory of India. So, prima facie UCC administers a set of secular
laws on all the citizens irrespective of religion, caste or tribe and is a credible attempt
to inhibit any further chaos relating to diverse laws.
The visionary of the Indian Constitution, Dr. B.R. Ambedkar was an ardent advocate
of UCC because of his past experiences and desire for future reformations. But his
exertion remained restricted to the words of Directive Principles as he faced
suppression from the opposition parties. In 2003, the Uttar Pradesh BJP President
Vinay Katiyar also reiterated similar views quoting that Ambedkar has favoured it and
said, A uniform civil code is required for strengthening the Indian Republic. A
consensus on the population policy is not possible due to lack of a uniform civil code
resulting in imbalance in population. Even the Supreme Court has favoured such a
code.215
Requisite for Uniform Civil Code
The edifice for the UCC has been beautifully described in the lines, A national identity
is more vital to a countrys progress and perhaps even to its survival than the identity
of various classes and communities.216 The essence of codification was long realised
during the colonial regime. The Lex Loci Report of October, 1840 emphasized on the
importance and necessity of uniformity in codification of Indian Law relating to crimes,
evidences, contract et cetera but it recommended that personal law of Hindus and
Muslims should be kept outside such codification.217 The proposal for exclusion of
Hindus and Muslims from the purview of codification and unification signifies its
sensitivity and arduousness. Post-colonial rule, there was emergence of realisation
amongst the framers of the Constitution and the then Government but the partition
extinguished the bleak hope of unification.
The Perspective of the Judiciary
For the first time, the Supreme Court directed the Parliament to chisel out a framework
for UCC in the case of Mohd. Ahmed Khan v. Shah Bano Begum 218. In the judgment
215
Ambedkar favoured uniform civil code: Katiyar, Press Trust India, Jan. 25, 2003, available at
http://articles.economictimes.indiatimes.com/2003-01-25/news/27561199_1_uniform-civil-code-bjppresident-vinay-katiyar-favoured
216Article 44 of the Constitution of India, http://www.lawteacher.net/free-law-essays/constitutionallaw/article-44-of-the-constitution-of-india-constitutional-law-essay.php#ftn1 last visited on 10-12-2015.
217 Uniform Civil Code of India, http://www.indialawjustice.com/uniform-civil-law.php last visited on 1012-2015.
218 1985 SCR (3) 844
90
the then Chief Justice of India, Y.V. Chandrachud said, Article 44 of the Constitution
has remained a dead letter. There is no evidence of any official activity for framing a
common civil code for the country. A common civil code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting
ideologies.219
After a decade, the juxtaposition of the facts of the four petitions filed in the case of
Sarla Mudgal, President of Kalyani and Ors. v. Union of India220 found its cynosure in
the genesis of Uniform Civil Code. The prime issue was whether a Hindu man who
embraced Islam could solemnise a second marriage. The judgment rightfully
addressed the grief and grievances as conversion from one religion to another with
sole aim of availing the beneficial provisions of the other faith shall not be legit. Justice
Kuldip Singh remarked that The rulers of the day are not in a mood to retrieve Article
44 from the cold storage where it is lying since 1949. The Governments which have
come and gone-have so far failed to make any effort towards unified personal law for
all Indians. He continued saying, When more than 80% of the citizens have already
been brought under the codified personal law there is no justification whatsoever to
keep in abeyance, any more, the introduction of UCC for all citizens in the territory of
India.221
Further, the Supreme Court constricted its judgment for implementing uniform civil
code in the Sarla Mudgal case in the subsequent decision in Lily Thomas v. Union of
India where the Court held that Part IV (Directive Principles of State Policy) are not
enforceable in the courts as they do not create any justiciable rights in favour of any
person. The hope for a unified civil code always had a flickering status until the case
of John Vallamatom & Anr. v. Union of India222 in 2003 where a priest from Kerala filed
a writ petition challenging the constitutional validity of Section 118 of the Indian
Succession Act. He contended that the Act was discriminatory against the Christians
as it imposes unreasonable restrictions on their donation of property for religious or
charitable purpose by will. The aforementioned section was struck down as being
unconstitutional and the then Chief Justice V.N. Khare quoted that, Parliament is still
to step in for framing a common civil code in the country. A common civil code will help
the cause of national integration by removing the contradictions based on ideologies.
These cases potentially signify the urge of apex court in initiating the uniform civil code
across the nation to promote solidarity and unification at the legal and national front
but several impediments make their way to restrict the implementation. One of the
poignant contention that is raised is implementation of UCC shall act as an
encroachment on Secularism. It is often presumed that UCC shall juxtapose the
essential conditions of different religions and make it mandatory for people of every
religion to abide by it. For instance, after the implementation of UCC, a Hindu might
be compelled to perform Nikah or a Muslim might have to follow the Saptapadi or the
seven circles of marriage. This might prove contrary to the principle of a secular state
which shall not discriminate against anyone on grounds of religion and concerns only
with relation between man and man and not with man with God. Moreover, the right to
freedom of religion guaranteed by Article 25 and Article 26 also comes into the picture.
219
Ibid.
AIR 1995 SC 1531
221 Ibid.
222 Writ Petition (civil) 242 of 2003
220
91
While Article 25 ensures to every person the freedom of conscience and the right to
profess, practice and propagate religion and also empowers the State to regulate or
restrict any economic, financial, political or other secular activity, which may be
associated with religious practices and also to provide for social welfare and reforms.
Article 25 and 26 shield rituals, ceremonies and modes of worship which frame the
edifice of any religion and fortify the interests of the followers. Thus, a unified pattern
shall prove to be a hindrance in the sentiments and interests of majority of religious
followers and impinge on the fundamental right and concept of secularism.
But UCC is not hostile to the principle of secularism or Article 25 or 26 as Article 44
does not base itself on the link between religion and personal laws and it does not
intend to interfere with the religious beliefs such as rituals of marriage. The UCC preeminently aims at chalking out a common law for matters of inheritance, maintenance,
succession and right to property. As stated by Justice R M Sahai, Ours is a secular,
democratic and republic country. Freedom of religion is the core of our culture. Even
the slightest of deviation shakes the social fibre. But religious practices, violative of
human rights and dignity and sacerdotal suffocation of essentially civil and material
freedom are not autonomy but oppression. Therefore, a unified code is imperative,
both for protection of the oppressed and for the promotion of national unity and
solidarity.
The initiation and implementation of UCC shall facilitate trailing of a series of positive
consequences the foremost being national integration and spirit. Religion and
provisions attached to it often act as a smokescreen for the political tricks which
ultimately diminishes the rights and interests of citizens. A uniform pattern of laws shall
reduce the multiplicity of litigations and inordinate delay that follows. There shall be
easier tactics to tackle the dividing tendencies and communal upheavals. Even in
India, there has been an appreciable enunciation of this unified system of personal
laws in the state of Goa. The Goa Civil Code was framed and enforced by the
Portuguese colonial rulers in coherence with the needs and demands of the
inhabitants. After the emancipation of Goa in 1961, the State accepted the central laws
with the exception of personal laws. The pre-nuptial Public Deed regarding the
disposal of immovable and movable property in the event of divorce or death is a
striking feature. While the parents have a common right over the estate during
matrimony, on dissolution the property has to be divided equally and the sons and
daughters have equal rights over the property. The Portuguese Civil Code chiefly
aimed at fortifying the family ties and ensured inhibition of injustice.
Conclusion
Why barriers of religion segregating Indians still prevail when Muslims and Hindus
unite to fight back with vigour and courage the catastrophes in the southern part of the
nation. ( with reference to the Chennai floods). Certainly, numerous faiths dwell in the
country and each have been vested by the Constitution the right to freedom of religion
and the concept of secular state is held high at the national forum. But as the deliberate
discussion above indicate, a uniform civil code shall minimise the mayhem with
respect to the diversified personal laws and act as a check on the irrational customs
and practices of child marriage and polygamy. For instance, the superfluous suffering
of a Muslim woman under the triple talaq form of divorce is unjustified as compared to
the women of other religions.
92
In a recent case before the apex court, a BJP activist and petitioner advocate Ashwini
Upadhyay and former Solicitor Generals of India, Mohan Parasaran and Gopal
Subramaniam contended the necessity of the uniform civil code in a multi-ethnic and
multi-cultural country like India to ensure Hindus, Muslims, Christians and Sikhs were
treated equally under civil law. However, three-judge bench refused to be swayed
beyond what has been said by the SC in its earlier judgments.223
But with a perspective of evading chaos and providing each one with same laws on
civil and commercial matters is the need of the hour. As the Law Minister Sadananda
Gowda says, a common code was necessary for national integration and added that
the issue require discussions with all stakeholders, including various personal law
boards to evolve consensus.224
223
Dhanajay Mahapatra, Supreme Court Leaves uniform Civil Code to Parliament, Door Ajar to Triple
talaq, Dec. 08, 2015, http://timesofindia.indiatimes.com/india/Supreme-Court-leaves-uniform-civilcode-to-Parliament-door-ajar-on-triple-talaq/articleshow/50083462.cms
224 Uniform Civil Code Must for National integration: Law Minister Sadananda Gowda, Oct. 14, 2015,
http://indianexpress.com/article/india/india-news-india/uniform-civil-code-must-for-national-integrationsays-law-minister-sadananda-gowda/
93
JUDICIAL FUNCTION BY SUPREME COURT WITH RESPECT TO

ARTICLE 142 OF THE CONSTITUTION OF INDIA
DIVYA SINGH AND ABHISHEK TRIPATHI
FACULTY OF LAW,
UNIVERSITY OF ALLAHABAD
ABSTRACT
Judicial independence is necessary for running a smooth and successful democracy.
It is a sine qua non for any effective administration. It strengthens the rule of law and
belief in human rights with the greased running of the society. Separation of powers is
demanded which is enshrined in the Constitution of India. The independence of
Judiciary in India is basic structure of the Constitution and is also enabled by it. India
aims at the development of a prosperous society which its makers believed could be
produced through the guarantee of fundamental rights and an independent judiciary
to guard and enforce these rights. This independence is granted to the Supreme Court
under Article 142 of the Indian Constitution. The Supreme Court, today, resolves
disputes and enjoys its right under this Article to acknowledge complete justice to the
society. It may decide its scope according to the disputed cases from time to time and
has therefore, left it unexplained. This paper aims at presenting the scope of
delegation of the Apex Court which it enjoys as and when necessary to render
complete justice. Hence, such independence of judiciary respects the provisions of the
Constitution as well as develops zero tolerance for corruption and compromise while
solving complexities of cases.
Introduction
Plato said, Justice is a proper, harmonious relationship between the warring parts of
the person or city.225 Many philosophers regarded Justice as Something which aims
to protect the rights of possession. Justice has been the essential theme of all times.
Justice is the act by which the society gives to a man what he is entitled to , as opposed
to protecting against injury or wrong. The illusion of Justice differs from person to
person because to some it is imparted while to some, it is denied.
In these situations, the courts have to play an important role to ensure that complete
justice is done. The chief function of the courts within any society is the resolution of
disputes. At the heart of the judicial system lies the premise that self-help by force is
unacceptable and parties must bring their disputes amicably before the court for an
impartial settlement. This essential scheme of dispute resolution mechanism promotes
good government and an orderly society, and eventually, by determination of disputes
and redressing violation of rights, the courts serve to develop new law and administer
existing laws.
For the promotion and stability of all this, the Founding Fathers of our Constitution,
engrafted rights, duties and their practicability for a democratic way of life. Articles 32,
136, 142, 226, etc. of the Indian Constitution strengthen the desires of imparting
225Plato,
The Republic, Book-I, 331 B.C.
94
complete justice. These provisions are some of the discretionary powers granted to
the Apex Court to resolve disputes at the best verge of justice and to fill the vacuum,
if the legislation has any on any specific law.
As Justice Cardozo stated, A Constitution states, or ought to state, not rules for the
passing hour, but principles for the expanding future226. Judiciary gets a room for
innovation in this way. Aide on a societys standards in point of fact, the zone of the
judicial role may square footage between thetwo ends of the spectrum far apart: on
the one end, judicial self-restraint and excessive judicial deference to executive policy,
and on the other, judicial activism and a wide scope of the judicial role. These roles
are imparted widely in Article 142 of the Indian Constitution. In the case of S. Nagaraj
v. State of Karnataka227, the Court said that Justice is a virtue which transcends all
barriers. Neither the rules of procedure nor technicalities of law can stand in its way.
Article 142- Enforcement of decrees and orders of Supreme Court and orders as
to discovery, etc.(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as in necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or order so made shall be enforceable
throughout the territory of India in such manner as may be prescribed by or under any
law made by Parliament and, until provision in that behalf is so made, in such manner
as the President may by order228 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to
make any order for the purpose of securing the attendance of any person, the
discovery or production of any documents, or the investigation or punishment of any
contempt of itself229.
Such order as is necessary:This clause gives the Supreme Court wide power to make orders. It contains no words
of limitation.230 In Laxmidas Morarji v. Behrose Darab Madan,231the court thought
advisable to leave the powers undefined for expandable interpretation. The provision
contains no limitation regarding the causes or the circumstances in which the power
can be exercised nor does it lay down any condition to be satisfied before such power
is exercised. The orders or decree by the highest court is made binding on all courts
and tribunals (by way of Doctrine of Stare Decisis) throughout the territory of India.
Like in the case of Spencer and Company v. Vishwadarshan and Distributors 232 , it
was held that Supreme Court under Articles 141, 142, 144 may pass orders if it is in a
form of request and it will be binding on High Courts and if flouted, then the Supreme
Court may initiate criminal proceedings against erring judges of High Court. However,
226
Vawd.uscourts.gov
Nagaraj v. State of Karnataka, (1993) Supp. 4 SCC 595
228 See the Supreme Court (Decrees and Orders) Enforcement Order, 1954 (C.O. 47)
229Constitutional Law of India, J.N. Pandey 52ndEdn.
230 K.M. Nanavati v. State of Bombay, AIR 1962 SC 112 (120,122): 1961 (1) SCR 497
231Laxmidas Morarji v. Behrose Darab Madan, 2009
232 Spencer and Company v. Vishwadarshan and Distributors, (1995) 1 SCC 259
227S.
95
this faculty is not to be exercised to prevail over any express provision. It is to be

exercised in a case where there is no basis in law which can form an edifice for building
up a superstructure. The Supreme Court has exercised the power under Article 142
to impart complete justice and to avoid a procedural whirlpool created between the
plaintiff-appellant.233 Besides having ample jurisdiction, it is doubtful that an order can
be passed contrary to law. In M.C. Mehta v. Kamal Nath234, the court held that it cannot
press Art. 142 into service in situation where action under the Article would amount to
contravention of the specific provisions of the Act.The court while managing with the
issue whether a punishment could be imposed by the apex court while hearing a Writ
Petition for causing pollution when such an act is covered by Prevention of Water
Pollution Act and Prevention of Air Pollution Act, held that Article 142 could not be
invoked in contravention of statutory provisions.
Complete Justice:The phrase Complete Justice engrafted in Article 142(1) of the Constitution is the
word of width couched with elasticity to meet myriad situations created by human
ingenuity or cause or result of operation or statute law or law declared under Articles
32, 136 and 141 of the Constitution.235 Art. 142(1) by employing the words complete
justice reflects Section 151 of the Civil Procedure Code, 1908 and Section 482 of
Criminal Procedure Code, 1973. All these provisions deal with inherent powers and
are more or less similarly phrased. Supreme Court while exercising its discretionary
powers and to do complete justice between parties, must consider all relevant facts of
matter, including its own decisions. The doctrine of proportionality emerging from
recent trends of the decisions is also a factor which weighs with Supreme Court. Under
Article 142, Supreme Court is empowered to take aid and assistance of any authority
for doing complete justice in any matter or cause pending before it. The conduct of
parties assumes significance in moulding the relief.
NATURE AND SCOPE OF ARTICLE 142:Article 142 vests the Supreme Court with a repository of discretionary power that can
be exercised in apt circumstances to deliver complete justice in a given dispute. Only
Bangladesh (Art. 104) and Nepal [Art. 88(2)] include similar provisions in their
Constitutions. Supreme Court protects the citizens under Art. 142. Supreme Court may
exercise its jurisdiction where laws are inadequate. Directions issued by Supreme
Court under Art. 142 of the Constitution form the law of the land in the absence of any
substantive law covering that field. Such directions fill the vacuum until the legislature
enacts significant laws. In the case of Vineet Narain v. Union of India236, the court held
that Supreme Court had ample powers under Art. 32,141,142,144 to issue necessary
direction and to fill the gap in the laws. Referring to Art. 142(1), the Supreme Court in
Supreme Court Bar Association v. Union of India237, has characterised its own role in
these words:
233
Union of India v. Lalita S. Rao, (2001) 5 SCC 384 (para 3): AIR 2001 SC 1792
M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 2003
235Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201, 250 (para 60): 1997 SCC (L&S) 1299
236Vineet Narain v. Union Of India (1998) 1 SCC 226 : AIR 1998 SC 889
237 Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 : AIR 1998 SC 1895
234
96
Indeed the Supreme Court is not a court of restricted jurisdiction of only dispute
settling. The Supreme Court has always been a law maker and its role travels beyond
merely dispute settling. It is a problem solver in nebulous areas238 It was further
described: The plenary powers of Supreme Court under Art. 142 are inherent in the
court and are complementary to those powers which are specifically conferred on the
court by various statutes though are not limited by those statutes. These powers also
exist independent of the statutes with view to do complete justice between the parties.
These powers are of wide amplitude and are in the nature of supplementary powers.
The power exists as a separate and independent basis of jurisdiction apart from the
statutes. It stands upon the foundation and basis for its exercise, may be put on a
different and perhaps even wider footing, to prevent injustice in the process of litigation
and to do complete justice between the parties. This plenary jurisdiction is, thus, the
residual source of power which this court may draw upon as necessary whenever it is
just and equitable to do so and in particular to ensure the observance of the due
process of law, to do through-and-through complete justice between the parties, while
administering justice according to law
The above ruling was referred in M.S. Ahlawat v. State of Haryana239, the court said
that under Art. 142, it cannot altogether ignore substantive provision of a statute and
pass orders concerning an issue which can be settled only through mechanism
prescribed in another statute.
By the cases of Prem Chand v. Excise Commissioner240and A.B. Bhaskar Raov.
CBI241, Court held that it would not pass any such law which would ignore the statutory
provisions dealing with the subject though such powers remain unfettered and create
an independent jurisdiction to pass any order in public interest to do complete justice.
Supreme Court exercises plenary powers which are inherent in the court and which
are specifically conferred on the court by statutes. Supreme Court has wider footing
than ordinary inherent powers to prevent injustice. It prevents clogging or obstruction
of stream of justice. Likewise it was defined in E.S.P. Rajaram v. Union of India242the
scope and extent of powers vested in Apex Court to exercise its jurisdiction under Art.
142. This power is meant to supplement the existing legal framework.
Court described its powers as separate and independent basis of jurisdiction and thus,
a residual power, which this court may draw upon as necessary. Despite an extraordinary constitutional jurisdiction in Art. 142, Supreme Court would not pass any order
which would be in contravention of a statutory provision. Supreme Court cannot violate
any statutory provision. Supreme Court may grant appropriate relief where there is
some manifest illegality, or manifest want of jurisdiction or some palpable injustice is
shown to have resulted to the parties. In the case of A.R. Antulay v. R.S. Nayak 243, the
Apex Court held that however wide and plenary the language of Article 142 be, the
directions given by the Court should not be inconsistent with, repugnant to, or in
violation of the specific provisions of any statute.
The inherent powers of Article 142 are coupled with Article 32 and Article 136 with
plenary and residuary powers. The Supreme Court as the sentinel on the qui vive, has
238
Ibid
M.S. Ahlawat v. State of Haryana AIR 2000 SC 168 : (2000) 1 SCC 278
240Prem Chand v. Excise Commissioner AIR 1963 SC 996 : 1963 Supp (1) SCR 885
241 A.B. BhaskarRaov. CBI, (2011) 10 SCC 259
242 E.S.P. Rajaram v. Union Of India AIR 2001 SC 581 : (2001) 2 SCC 186
243 A.R. Antulay v. R.S. Nayak AIR 1988 SC 1531 : (1988) 2 SCC 602
239
97
been invested with the powers which are elastic and flexible. In Shahid Balwa v. Union
of India244, the Court said that Art. 136 read with Art. 142 enables the Court to pass
such orders, which are necessary to do complete justice in any cause or matter
pending before it. Art. 142 is a residuary power, supplementary and complementary
to the powers specifically conferred by the statutes to do complete justice between
parties whenever it is just and equitable to do so.
The power further extended when the case of Delhi Judicial Services Associations v.
State of Gujrat245 happened where the court held that Supreme Court with inherent
powers of Art. 142 and residuary powers of Art.32 and Art.136 has power to quash
criminal proceedings pending before any court to do complete justice in matter before
it. The restrictions were considered in the case of Union Carbide Corporation v. Union
of India246 where the court held that any prohibition or limitation or provisions contained
in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the
constitutional powers under Art. 142. In E.K. Chandrasenan v. State of Kerala 247, the
court held that Article 142 empowers the Supreme Court to pass any order which it
deems necessary in order to do complete justice. The court said that power under
article 142 can be resorted to for initiating suomoto proceedings of enhancement of
sentence in criminal cases even in those cases where the accused had approached
the Supreme Court challenging his conviction.
Though the Supreme Court is equipped with great discretionary powers, there can be
no straight jacket formula for its influence nor upon there be any fetters or limited scope
of application for the powers under Art. 142 are plenary in nature. It acts as an equity
jurisdiction without losing the characteristics of being an action in accordance with law.
The Courts have used Art.142 as a tool for doing complete justice. The Apex Court
has always risen to the occasion to ensure that supremacy of law prevails. It is an
inherent power and jurisdiction for dealing with any extra-ordinary situation in the
larger interests of administration of justice and for preventing any manifest injustice
being done. However, the power is to be exercised only in exceptional circumstances
for furthering the ends of justice and not in a casual and a mechanical manner. The
purpose of Art.142 is to do effective, real and substantial justice, coextensive and
commensurate with the needs of justice in a given case in order to meet any exigency
that may arise248, and this was further explained in ManoharLal Sharma v. Principal
Secy & Ors.249, that Supreme Court has been conferred with very wide powers for
proper and effective administration of justice.
SELF-IMPOSED DISCIPLINE BY APEX COURT:The current position in law can thus aptly be summarised as that being a constitutional
provision, Article 142 can override any statutory provision. But, in practice, the Court
does not use its powers under Article 142 in direct confrontation with any express
statutory provisions applicable to the case at hand. This is a self-imposed restriction
but the Court can bypass the same if equitable considerations demand. There is no
ipso facto limitation or inherent safety valve in the said article to prevent the court from
244Shahid
Balwa v. Union of India (2014) 2 SCC 687

Delhi Judicial Services Associations v. State of Gujrat AIR 1991 SC at 2005
246 Union Carbide Corporation v. Union of India, (1991) 4 SCC 583, 934-35 : AIR 1992 SC 248
247 E.K. Chandrasenan v. State of Kerala,1995 AIR 1066, 1995 SCC (2) 99
248Zahira Habibullah Sheikh & Anr. V. State of Gujrat & Ors., (2004) 5 SCC 353 (SCC at p. 360, para
10)
249Manohar Lal Sharma v. Principal Secy & Ors. AIR 2014 SC 666
245
98
invoking its inherent power. The nature of the power must lead the court to set limits
for itself within which to exercise such powers. Ar. 142 is curative in nature; the power
under Ar. 142 is meant to supplement and not supplant substantive law applicable
to the case under consideration.
UNFETTERED POWERS OF APEX COURT: NOT AGAINST STATUTORY
PROVISIONS
Therefore the accepted view today seems to be that even though the courts have
figured to leave their powers under Article 142 undefined and uncatalogued, they have
over a period of time evolved certain limitations on exercise of their power. Thus the
Supreme Court would not be inclined to exercise its power under Article 142 if a
specific statutory provision subsists to deal with the corollary involved until and unless
the same is absolutely necessary in the interests of complete justice. Being the highest
court of the land from which no appeal lies the constitution-makers have gone that
extra mile and given wide powers to the Supreme Court under Article 142 so as to be
sure that there's nothing prohibiting the Supreme Court from meting out Justice.
Furthermore, had the position of law as declared been that the Supreme Court can
grant any order irrespective of any existing statutory provision, then such par-ranging
power would have given the court ample occasion to excessively interfere with
statutory mechanisms. Existence of statutes expressly dealing with the subject-matter
would perhaps have had no impact on the outcome of the case or the nature of the
order passed under Article 142 then and this would in turn have inspirited litigants to
pray for an order under Article 142 avoiding the mandatory statutory process.
While defining nature and ambit of its own its own power under Art. 142, Supreme
Court observed that it was advisable to leave its powers undefined and uncatalogued
so that it remains elastic enough to be moulded to suit the situation; even if no
alternative remedy is efficacious due to lapse of time. Art. 142 apply to all appeals
including Special Leave Petition in Art. 136. Thus, jurisdiction of 142 must be applied
at the time of rendition of the judgement and not thereafter.
The Court cannot use its power beyond certain limits as it may desire or arbitrarily. In
Manish Goel v. Rohini Goel250, the court noted that the power of the Court is to be
used sparingly in cases which cannot be effectively and appropriately tackled by the
existing provisions of law or when the existing provisions of law cannot bring about
complete justice between the parties.
EXERCISE OF ARTICLE 142 WITHOUT LEGISLATION:The Supreme Court has the power to issue directions under Article 142 where none
already exist and such directions shall be binding till such time as new rules are
enacted by the legislature on the subject. Thus it has been held that ample powers are
conferred on the Court under Articles 32, 141, 142 and 144 to issue necessary
directions to fill vacuum till either legislature steps in to cover the gap or the executive
discharges its role.
250Manish
Goel v. Rohini Goel2010 (2) SCR 414
99
The Court had in the famous Vishaka case251 formulated guidelines providing for
protection of women from sexual harassment at the workplace in the truancy of any
enacted law on the same and the same are binding on all the courts under Article 141.
Thus where there is inaction by the executive, the judiciary must step in, in function of
its constitutional obligations to supply a solution for work till such time as the legislature
acts to perform its role by enacting proper legislation to cover the field.
NON-AVAILIBILITY OF ARTICLE 142(1) TO HIGH COURTS:The High Courts power under Ar. 226 of the Constitution of India is not at par with the
constitutional jurisdiction conferred upon the Supreme Court under Art.142. The
Supreme Courts power under Ar. 142 is not available to High Courts and the High
Courts have no power to do complete justice. The abovementioned notions are
nebulous to the extent, as they contemplate that the High Courts have no power to do
complete justice in a lis, and it is only the Supreme Court which can do complete
justice. Even the Preamble to the Constitution of India deliberates that justice shall be
social, economic and political in nature. Dispensation of justice does not create a
hierarchy among the courts of law. The correct position is that the Supreme Court and
the High Courts are both empowered to do complete justice under the Constitution of
India; however the latter has to dispense justice within a circumscribed domain252 and
the Supreme Court of India, being the final court of law, knows no bounds and
limitations while dispensing justice to the parties.
CURRENT POSITION:The current position of law lies between the mentioned propositions and maintains a
balance between the Court's power to do complete justice on one hand as well giving
due regard to existing statutes. On the careful marshalling of the decisions, it becomes
evident that the Supreme Court has expressed its reservations and doubts as to the
nature and scope of Art. 142. The Court must endeavour to give primacy to statutory
provisions and only in few cases where soul of complete justice genuinely demand,
the Court may pass an order outbraving statutory provisions. Today, the Honble
Supreme Court exercises its power meritoriously under this article by fixing its limits
and scope by itself to render complete justice considering the different facts of the
cases. It fills the gaps of legislations and passes any order which it deems fit to be
passed necessarily. Hence, the Apex Court exercises its power of delegation
necessarily and not arbitrarily.
CONCLUSION
Cardozo J. writes: Judges have, of course, the power, though not the right, to ignore
the mandate of a statute, and render judgment despite of it. They have the power,
though not the right, to travel beyond the walls of interstices, the bounds set to judicial
innovation by precedent and custom. None the less, by that abuse of power, they
violate the law.253 This is an apt summation to the principle which must be observed
when invoking the extraordinary power under Article 142. Art. 142 (1) of the
Constitution is an enabling provision which empowers the apex court to do complete
251
Vishaka v. State of Rajasthan, (1997) 6 SCC 241

Anil Kumar v. Maya Jain, 2009
253 BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 129 (2008).
252
100
justice in cases where the law is muted or in cases which have peculiar facts and
circumstances. The Constitution confers wide powers upon the Supreme Court such
as the power to grant special leave against orders or decrees from any court or tribunal
in the country254 or to have exclusive jurisdiction to decide election disputes of the
President or Vice-President.255 Moreover, the law laid down by the Supreme Court is
the law of the land binding on all the courts and tribunals in the country. 256 Such powers
have been conferred upon the Supreme Court to ensure that the court does not endure
from any jurisdictional hardship to do justice between the parties before it.Article 142
was accustomed in our Constitution to fulfil the interests of justice. The Supreme Court
is the apex court from which no appeal lies. Its decisions are concluding and binding.
Thus, this article was included in our Constitution with a view to ensure that the
interests of justice are paramount and over-mastering and in doing so the Supreme
Court can disregard any provision which prevents the court from performing its
constitutional obligations. Our Supreme Court in pursuit of justice knows no bounds,
but in such pursuit it must not lose sight of principles of institutional integrity and judicial
process. Of course, the application of law with pedantic rigour is neither just nor
justifiable, yet the judicial process must be mindful of the existing legal principles while
invoking principles of equity to strike a harmonious balance between the two. The
absence of any Constitutional Assembly Debate on Article 142 (Article 112 of the Draft
Constitution) indicates that the founding fathers wanted the powers under this article
to remain open-ended, so as to enable the Supreme Court to develop its own
jurisprudence. It is then timely for the justices to challenge, clarify and correct the
prevailing jurisprudence on Article 142 which presents it as a nebulous, unfettered
power. No salvage, other than an inward-looking exercise by the apex court and
corrective case law can do justice in redeeming a purposive construction of Article
142.
254Article
136
Article 71
256 Article 141
255
101
OFFICE IN THE CLOUDS & DATA PROTECTION: REGULATION OF

THE CLOUD IN INDIA
GAURAV HOODA
ARMY INSTITUTE OF LAW, MOHALI
ABSTRACT
Cloud Computing is a new paradigm in the evolution of Information Technology, as its
one of the biggest revolution in the field of information technology to have taken place
in the recent times. The underlying notion of cloud computing was in existence way
back in the 60's wherein computing was done by large mainframe computers wherein
a single machine served many users, however, it was in 2000 when after the dot com
bubble Amazon played a key role in the development of Cloud Computing by
modernizing the existing data centres and increasing its usage capacity. Cloud
computing with the advancement of technology has become more profound and
gained depth. . However, because of the rapid growth of cloud computing, many
regulatory authorities believe that it should be regulated and that new laws should be
passed to control the perceived risks.
Cloud Computing is a computing service which involves a galaxy of computers and
other gadgets which stores, forwards, processes and transmits the data into a
computer and which may further be processed in another and retained in another
system by sharing resources such as software storage services in a cloud that maybe
connected through internet despite being separated by vast geographical distance. It
is similar to LAN (Local Area Network wherein a computer network interconnects
computers in a limited area) but has a wide coverage which enables users to access
systems using a web browser irrespective of their physical location.
The author in this submission talks about the current framework of laws applicable to
cloud computing and the lacking of an exclusive law governing its operation.
Nonetheless, queries as to the applicable law and jurisdiction still remain unanswered.
Keeping in mind the sphere of its existence, it is about time India has a specific law
regulating the operations of cloud in India.
1.1 INTRODUCTION:
Gradually the scope of legal rights broadened; and now the right to life has come to
mean the right to enjoy life--the right to be let alone.
Justice Louis Brandeis
INCEPTION OF CLOUD COMPUTING: GROSCHS LAW
The development of cloud computing is as old as computing itself.257 For nearly
two decades, this theory was enshrined and endowed with the character of a law of
nature in a concept known as Groschs Law. Herbert Grosch developed this law
more than 60 years ago based on an assumption that computing increased by the
square of its cost.258 Grosch expressed his theory as follows: I believe that there is a
257
In 1944, the first large-scale automatic digital computer began operation. Built by IBM and Harvard
professor Howard Aiken, the Mark I was 55 feet long and eight feet high. The World Almanac and
Book of Facts (Ken Park ed., 2002).
258 Patrick S. Ryan, Wireless Communications and Computing at a Crossroads: New Paradigms and
Their Impact on Theories Governing the Publics Right to Spectrum Access, 240 J. on Telecomm. &
High Tech. L. 3, at 247.
102
fundamental rulegiving added economy only as the square root of the increase in
speed; that is to do a calculation ten times as cheaply you must do it one hundred
times as fast.259
This argument has been interpreted to mean that the natural technological
evolution would lead to supercomputing as a norm and, essentially, that migration to
centralized computing would happen because of the need to leverage economies of
scale coupled with the need to invest in massive data processing centres. As with any
good thinker who is ahead of his time, Mr. Grosch was partially wrong, and partially
right, his law held rein for nearly three decades.260 Those who claimed that Grosch
was wrong called for the repeal of Groschs Law as other more accurate cost models
came to light. Indeed, while Groschs cost model was wrong (now replaced by Moores
Law),261 his theory of supercomputing with dumb terminals, essentially, is the root of
cloud computing.
While Grosch was wrong about the cost model of cloud computing, he was
correct in his assumption that significant economies of scale and efficiencies could be
achieved by relying on massive, centralized data centres rather than an over-reliance
on storage in end units. Groschs observations highlight that the debate around the
theories of cloud computing have been taking place for more than 50 years. Indeed,
the worlds leading thinkers within the area of cloud computing are just as old as the
theories of computing themselves.
UBIQUITOUS NATURE OF CLOUD
So, while the concept of the cloud has been blurred with the Internet for some
time (arguably long before the concept of the Internet even existed), the term is still
used because it is entrenched in the common of the technology. Yet, it is worth
exploring the various manifestations of offerings to show how widespread the adoption
has been and illustrate width and depth of the ecosystem, which the cloud has
encapsulated:
1. CLOUD EMAIL:
There are thousands if not millions of companies that provide separately branded
cloud based email services. There is currently a very low barrier-to-entry for this
Young M. Kang et al., Comments on Groschs Law Re-Visited: CPU Power and the Cost of
Computation, 29 Comm. ACM 779 (1986)
260 In the 1960s and 1970s, Groschs law was still highly regarded by scientists and policy analysts, and
respected papers continued to espouse his centralized computing law. While some challenged his
theories, the scientific community on the whole still had great faith in them. See e.g ., Martin B. Solomon,
Jr., Economies of Scale and the IBM System/360, 9 Comm. ACM 435 (1966) (concluding that larger
computers offer the greatest economies of scale and indicating that Groschs Law, stated in the 1940s,
appears to be prophetic); A. E. Oldehoft & M. H. Halstead, Maximum Computing Power and Cost
Factors in the Centralization Problem, 15 Comm. ACM 94 (1972) (In addition to increases in the level
of technology, one can expect for any given level, a return to scale approximated by Groschs Law).
But see Charles W. Adams, Groschs Law Repealed, 8 Datamation 38 (1962) (Adams suggests that
Groschs law may not be accurate. Adams work was part of an early movement that ultimately led to
the so-called repeal of Groschs law.).
261 Miniaturization is most often associated with the growth of personal computers that took place from
the 1970s through the 1980s, and it is most often expressed in terms of Moores law. Moores law,
developed by Intel founder Gordon Moore in the 1970s, holds that the microprocessors performance
will double every 18 months. See Caught in the Net, The Economist, March 27, 1997, at S16
(describing Moores law and indicating that it has so far proven to be correct).
259
103
market because web-based email is now available as an open-source platform,

which means that the core software to run an enterprise-class Web-mail server can
be obtained for no cost.262 All a company needs to do is to purchase a simple Linux
computer and an Internet connection and that company is now a cloud-based email
provider. With so many offerings available, users can sign up for multiple email
accounts from any email service around the world. Therefore regulations (such as
those in Europe) that require data be stored within certain geographical boundaries
are not practically enforceable. For example, even if a large cloud-based email
provider, such as Hotmail, Gmail, or AOL, were to comply by hosting some of its
servers in a given country, there is simply no way to impose such a requirement
on the thousands of other cloud-based email providers.
2. SOCIAL NETWORKING, PHOTOS, AND STORAGE:
Social networking is big business. Recent market valuations of the well-known
site Facebook have cited the value of the upcoming IPO as high as $100
Billion.263 The rationale for this valuation is not just based on consumer usage,
its the vast amount of information contained within the Facebook cloud and the
value that businesses and users place on it. Additionally, through services such
as Yelp, users and businesses collaborate in the cloud to rate and share
information on businesses.
The most valuable family photos are no longer stored away in an album or shoe
box, they are in the cloud, stored on sites such as Picasa, Flickr, Apples iCloud,
Snapfish and many other locations. In addition to the value-added services,
there are a number of services that offer hard-drive replacement in the cloud,
for example, Dropbox, JungleDisk, Onedrive, and many others.
3. BANKING AND MONEY MANAGEMENT:

Most of the banking happens in the cloud. Almost all banks offer users the
opportunity to complete online payment transfers, pay bills, purchase and sell
stocks, and other activities, and in many cases, it has completely replaced the
need to either visit a physical bank branch or to keep paper-based transactions.
Additionally, there are several suites of cloud-based services that help
individuals and businesses manage their money, in a trend that has been called
Banking 2.0.
Cloud-based banking products include Quicken, Mint, Wesabe, Geezeo,
Expensr, MoneyStrands, Xero, and these suites either integrate data with or
share data in some way with other cloud-based suites that can help with tax
preparation and filing, such as TurboTax. In sum, the banking and financial
ecosystem has completely moved to the cloud, such that individuals and
businesses can practically maintain all of their records like daily transactions,
financial planning, taxes & stock trades, all via the cloud.
4. OFFICE SOFTWARE TOOLS:
Companies such as Google offer a broad base of business productivity tools
and office-software replacements in the cloud. Google Apps, for example, is an
VMWares Zimbra, for example, is an open-source product that has been widely adopted by
enterprises. It also is seen as a competitor to Microsoft Office 365 and to Google Apps. See Microsoft
Office 365 Launch: Zimbra Scores Surprise PR Win, The VAR Guy, June 28, 2011.
263 George Simpson, A Billion Here and a Billion There, Online Media Daily, July 1, 2011.
262
104
enterprise-ready suite of applications that includes Gmail, Google Calendar

(shared calendaring), Google Docs and Spreadsheets (online document
hosting and collaboration), Google Sites (team site creation and publishing),
and Google Video (easy, secure sharing of video content).
5. E-COMMERCE:
The cloud can enable businesses to set up a completely virtual business
presence without the need for any infrastructure. Amazon and Ebay offer
virtual storefronts that enable cloud-based presentation, advertising, search,
and payment processing and delivery. Products such as Google Apps have
powered companies such as OpenEntry, which offers free e-commerce
catalogues (software, hosting, user support) to artisans and Small and Medium
Enterprises (SMEs) worldwide that includes catalogues managed by Google
spreadsheets, images stored on Picasa Web Albums and payments by Google
Checkout.264
1.2 PRIVACY CONCERNS WITH RESPECT TO CLOUD COMPUTING IN INDIA
Ask the American public if they want an FBI wiretap and theyll say, No. If you ask
them do they want a feature on their phone that helps the FBI find their missing child
theyll say, Yes.
- Louis Free
Cloud providers often manage huge amount of personal data from millions of
users of cloud service, and the data from one user commingles with the data of other
users. 265 There was a debate on cloud computing and privacy from a settlement in
Authors Guild, Inc. v. Google Inc. 266 The stipulations of the agreement permitted
Google to keep on offering copies of books on their cloud-based Google Books
platform in return for a stipulated amount to the authors. Although privacy was not the
main concern in the settlement, many public interest organizations were alarmed that
the agreement did not acknowledge the security of the privacy of its users.
The issue raised by Consumer Watchdog in 2010 was that the settlement still
contained no restrictions on what data could be gathered, and contained only limited
restrictions on how that data cloud be shared. The settlement agreement did not
address whether a users reading preferences could be shared with news outlets or
governmental units acting without a search warrant. Consumer Watchdog was
concerned that the settlement gave Google a monopoly over the book-search and
book-subscription markets and at the same time gave it unrestrained authority to share
private information about users with outside entities. A group of objecting class
members to the Google settlement, Privacy Authors and Publishers, asserted that the
lack of privacy protection in the Google settlement agreement would deter readers
from reading and purchasing their works.
According to the Privacy Authors if readers were worried that information about
their reading habits could be disseminated to the government, divorcing spouses, or
See Dan Salcedo, Free e-commerce catalogs managed with Google Docs, Google Docs Blog,
February 3, 2010.
265 William Jeremy Robison, Free at What Cost? Cloud Computing Privacy under the Stored
Communications Act, 2010 GEO. L.J. 1195.
266 Authors Guild, Inc. v. Google Inc., No. 058136(DC), 2009 WL 5576331(S.D.N.Y. Nov. 13, 2009).
264
105
other interested third parties, these readers would be less likely to view books on
controversial topics. Not surprisingly, the Privacy Authors included several authors
who had had penned books on sensitive or controversial subjects.
JURISDICTION CONFUSION: WHICH LAWS APPLY TO THE DATA IN THE
CLOUD?
The amorphous nature of the collection of servers, applications, and data that
makes up the cloud lends itself to potential jurisdiction conflicts. The jurisdictional
question is an important one because lets say if a company does not know which
jurisdiction its data is subject to, how can it know which laws apply? In the United
States, for example, the Patriot Act gives the government broad latitude to intercept
suspicions electronic data that comes through the country. 267 European and Asian
companies have expressed concerns about having their data stored on computers in
the U.S.A. which fall under the jurisdiction of the USA Patriot Act, allowing the U.S
government to access that data very easily. 268 In the European Union, on the other
hand the data protection directive puts stringent standards on the collection of
electronic data by the government and by any other entity.269 Because of these
distinctions, it is important that cloud computing or SaaS (Software as a service)
agreements specify where the data is physically located and which laws apply. Yet
another statutory hurdle to cloud computing in the United States is the Health
Insurance Portability and Accountability Act (HIPAA).270
HIPAA places substantial restrictions on the transfer and disclosure of private
health information. For example, entities that are covered by the Act must enter a
business associate agreement with cloud providers before the providers can store
records containing health information in the cloud.271 Because of HIPAAS
requirements, it is important for foreign entities to know where their data is located.272
This knowledge ensures that they can enter the necessary agreements with the cloud
provider to avoid liability under HIPAA.273
Cloud computing agreements do not just cause jurisdiction confusion
internationally. Privacy Laws also vary from state to state within the United States. For
example, a law in Massachusetts requires anyone who holds personal information
belonging to a Massachusetts resident to implement a detailed written security
program to protect the data.274 Companies subject to these regulations that want to
implement cloud computing must determine whether the cloud provider maintains
267
H. R. Cong. Res. 3162 107 Cong. (2001) (enacted).

Roger Smith, Computing in the Clouds, http://www.questia.com/library/journal/1P31864072981/computing-in-the-cloud, accessed on 03rd June 2016.
269 European Union Privacy Directive 95/96/EC O.J. (L.281) 31. available at
http://searchsecurity.techtarget.co.uk/definition/EU-Data-Protection-Directive, accessed on 05th June
2016.
270 Health Insurance Portability and Accountability Act of 1996
271 Lisa J. Sotto Privacy and Data Security Risks in Cloud Computing, 15 Electronic Com & L. Rep.
(BNA) 186, 187 (2010).
272 Lin Grimes & Simmons Where Is the Cloud? Geography, Economics, Environment, and
Jurisdiction in Cloud Computing available at:
http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2456/2171, accessed on 06 th June
2016.
273 Lisa J. Sotto, Privacy and Data Security Risks in Cloud Computing, 15 Electronic Com. & L. Rep.
(BNA) 186, 187 (2010).
274 Mass. Gen. Laws Ann. Ch. 93 H & 2 (West Supp. 2010).
268
106
adequate security measures to protect its electronic data because a Massachusetts

residents data could be commingled with the data of many other users in the cloud,
thus making it difficult for cloud providers to know which state regulations applied to
such providers. With the business world rapidly embracing cloud computing solutions,
it is only a matter of time before litigation arises that directly addresses the jurisdictional
problems with cloud computing.275.
RIGHT TO INFORMATION VERSUS RIGHT TO PRIVACY

Another major issue with respect to privacy in general is the authority of the
government to intercept and monitor any person and his whereabouts, which is
contrary to the right mentioned under Article 21 of the constitution. Similarly, under
Section 69 of the Information Technology Act, 2000, the Government has the
authority to monitor as well as decrypt any information shared through a computer
resource in the cloud. Therefore, the government may tend to infringe upon the right
to privacy as specified under Article 21. However, in order to alleviate the possible
effects on fundamental rights additional safeguards and conditions have to be followed
in order to safeguard the privacy interests.
In this respect, the Court in Secretary General, Supreme Court vs. Subhash
Chandra Agarwal276 noted that as regards to right to information vis--vis right to
protect privacy, fine balancing requirements are required between the government
entities and individuals. Thus, in my opinion there is a need for careful consideration
of issues of privacy, data chain authentication and security procedures needs to be
looked into and modified in accordance with the changes required as per the specific
circumstance.
1.3 PRIVACY & THE LEGAL FRAMEWORK IN INDIA

Gradually the scope of legal rights broadened; and now the right to life has come to
mean the right to enjoy life--the right to be let alone.
Justice Louis Brandeis
Presently, there is no specific legislation dealing with privacy and data
protection. The protection of privacy and data can be derived from various laws
pertaining to information technology, intellectual property, crimes and contractual
relations. In the Indian context, although there is no statutory enactment expressly
guaranteeing a general right of privacy to individuals in India, elements of this right, as
traditionally contained in the common law and in criminal law is recognized by Indian
courts. These include the principles of nuisance, trespass, harassment, defamation,
malicious falsehood and breach of confidence.
In addition, several pieces of discrete legislation also recognise this right: for
example, the Juvenile Justice Act 2000, which prohibits the publication of names
and other particulars of children involved in proceedings under the Act; the Hindu
275
Mark L. Austrian, International Cloud Computing Meets U.S.E-Discovery, available at

http://www.kelleydrye.com/publications/client_advisories/0865, accessed on 08 th June 2016.
276 Secretary General, Supreme Court v. Subhash Chandra Agarwal AIR 2010 Del 159.
107
Marriage Act 1955, which imposes similar restrictions on the publication of reports
concerning proceedings of matrimonial disputes; and the Copyright Act 1957, which
prohibits the unauthorised publication of certain documents, photographs, etc. The
Code of Criminal Procedure, 1973, also permits restrictions to be imposed on the
publication of reports concerning certain legal proceedings, eg. Rape trials.
Although there is no right specifically focused on personal data protection in
India, there are several primary sources of Indian legislation that refer to this right for
Indian citizens. The sources are:
1. Article 21: Article 21 of the Indian Constitution is about the general Right to
Privacy. This right covers the first generation of rights for Indian Citizens.
The Information Technology Act of 2000 is based on a resolution that was
adopted by the United Nations on January 30, 1997. This act is focused on
e-commerce and cybercrime in general.
2. Indian Contract Act: The Indian Contract Act basically deals with requiring
Indian importers to pay a duty if they are unable to protect data coming in
from other countries. The Credit Information Act of 2005, on the other
hand, imposes duties on credit information companies and credit institutions
for any unauthorized sharing of an individuals credit information with
external sources.
3. Information Technology Act of 2000: The Information Technology Act of
2000 has explicitly stated penalties for the breach of data and privacy, at
least in the domain of computers and cybercrime. For instance, a person
gaining access to or downloading/changing information from a computer
system without prior permission from the owner is subject to civil liability.
Intentional tampering with a computer systems source code is punishable
by up to three years imprisonment or a fine of up to two lakh rupees. The
same penalty is applicable to anyone who is involved with hacking a
computer system to cause wrongful loss of property.
Four sections of the Information Technology Act specifically deal with
penalties against breach and misuse of data in India. These are Sections 43, 65, 66,
and 72.
Section 43 protects the consumer from damages to the computer or the

computer system. It foresees civil liability for actions including but not limited to
unauthorized copying, extraction, database theft, and digital profiling.
Section 65 protects consumers against the tampering of computer source
documents. It is applicable to intentional actions such as concealing,
destroying, or altering of computer source code and is punishable by either or
combination of a fine of up to two lakh rupees and imprisonment of up to three
years.
Section 66, quoted in India as a data protection provision, deals with computer
hacking and protects data users from intentional alteration/misuse of data on
their computers diminishing the value of the data in the process. The penalty is
the same as that for Section 65.
Section 72 imposes a fine of one lakh rupees and an imprisonment term of up
to two years for any breach of confidentiality and privacy of a persons material.
To be clear, the existing regulatory framework does not offer complete protection
from data breaches; however it is comprehensive enough to resolve a majority of the
108
concerns in the Indian market. The introduction of new regulations does not show any
distinct benefits. On the other hand, new regulations could pose definite and serious
challenges for cloud computing and the functioning of the Internet itself. It will not only
slow down the adoption rate for cloud computing and prolong the time to gain its
benefits but also give rise to a feeling of confusion and panic in the Indian economy.
1.4 NEED FOR SPECIFIC PRIVACY LAW: THE WAY FORWARD
There is a sacred realm of privacy for every man and woman where he makes his
choices and decisions; a realm of his own essential rights and liberties into which the
law, generally speaking, must not intrude.
-
Geffrey Fisher
There exists in India an impending need to frame a model statute which

safeguards the Right to Privacy of an individual, especially given the emergence of
customer-service corporate entities which gather extensive personal information
relating to its customers. It's evident that despite the presence of adequate nonmandatory, ethical arguments and precedents established by the Supreme Court of
India; in the absence of an explicit privacy statute, the right to privacy remains a de
facto right, enforced through a circuitous mode of reasoning and derived from an
expansive interpretation of either Constitutional law or tort law. The urgency for such
a statute is augmented by the absence of any existing regulation which monitors the
handling of customer information databases, or safeguards the Right to Privacy of
individuals who have disclosed personal information under specific customer contracts
viz. contracts of insurance, credit card companies or the like.
The need for a globally compatible Indian privacy law cannot be understated,
given that trans-national businesses in the services sector, who find it strategically
advantageous to position their establishments in India and across Asia. For instance,
India is set to emerge as a global hub for the setting up and operation of call centres,
which serve clients across the world. Extensive databases have already been collated
by such corporates, and the consequences of their unregulated operations could lead
to a no-win situation for customers in India who are not protected by any privacy
statute, which sufficiently guards their interests. Even within the present liberal global
regulatory paradigm, most governments would be uncomfortable with a legal regime,
which furthers commercial interests at the cost of domestic concerns.
THE NEW INDIAN PRIVACY LAW
The most recent development by the Indian Government with respect to data
privacy came in June, 2011, when it passed the Information Technology Rules
(Reasonable Security Practices and Procedures and Sensitive Personal Data or
Information) in 2011. A key component of these rules was that any organization
processing personal information in India requires written consent before undertaking
certain activities and must implement reasonable security policies and procedures.277
These rules apply to organizations operating in India and are independent of whether
the data originates in India or if it pertains to Indian citizens. It also enforces a
disclosure obligation for privacy policies wherein an organization must clearly explain
First Analysis of the Data Protection Law in India, CRID, University of Namur, (hereinafter, CRID
India Privacy Paper).
277
109
the purposes of processing the involved personal information. These laws make
Internet Intermediaries responsible for harmful content on the Internet. 278
The intention of the Indian Government is to enhance the data security and
privacy in the country and it feels that this is a crucial step to promote offshoring in
India. However, the actual nature of these rules does not completely solve the original
purpose.279 The extensive requirements of the new rules are likely to increase the
overhead of time, energy, and money to be spent by companies when offshoring to
India. The new privacy law is very new, and ultimately, it will be important for its
interpretation and enforcement to be measured so as to allay the fears that have
already been expressed by many multinational businesses.280
CONCLUDING REMARKS:
The chief rationale why companies choose cloud computing over any other
course of storage is because the information is being stored online, eliminating the risk
of data being lost or destroyed. Cloud computing also has many shortcomings which
need to be taken care of, for example there are a number of privacy and security issues
associated with the storage of data on the internet. Additionally, there is always a
danger of losing internet connectivity which could cause interruption in the workflow of
a company.
Experts in the field maintain that cloud computing is more safe than the many
traditional means of data storage such as hard disks, servers etc., though companies
still take the menace of data being stolen by any outsider hacking into the security
scheme of the cloud. The foremost ground why companies are not selecting cloud
services is the lack of protection or security. Then again, the traditional storage means
also present dangers like the servers can also be hacked into by outsiders and hard
disks could crash and destroy the stored data.
Coming to the Indian aspect, cloud computing is a new notion and there is no
law which exclusively governs it and the law currently lacks clearness. Queries as to
the applicable law and jurisdiction still remain unanswered. Nonetheless, companies
are substituting from traditional methods of storage to cloud computing because of the
cost effectiveness.
Thus, in the opinion of the author, cloud computing may not be idyllic for all
companies because of the various issues brought about in the article, but it is costeffective and suitable for global companies to use in order to store data which can be
retrieved at any time from any part of the world.
Russell Smith, Indias New Data Privacy Rules: Will They Help or Hurt Legal Outsourcing? Law
without Borders, May 23 2011.
279 Mani Malarvannan, New Privacy Laws To Impact Outsourcing to India, Outsource Portfolio, June
10 2011.
280 Rama Lakshmi, India data privacy rules may be too strict for some U.S. companies, Washington
Post, May 21, 2011.
278
110
BRINGING DOWN THE WALL: TRANSGENDER RIGHTS IN INDIA

FROM A LEGAL PERSPECTIVE
MADHUR JHAVAR AND HARDIK GAUTAM
INSTITUTE OF LAW, NIRMA UNIVERSITY, AHMEDABAD (GUJARAT)
ABSTRACT
India is a democratic country giving utmost priority to the rights of people, not
differentiating on the basis their gender while framing laws, giving emphasis to the
rights of suppressed class is wholly a different matter and out of the scope of paper.
Now when we raise a question what genders are to be considered? For answering
this sort of question one must know what a transgender is? Transgender is not a term
limited to persons whose genitals are intermixed but it is a blanket term of people
whose gender expression, identity or behavior differs from the norms expected from
their birth sex. Various transgender identities fall under this category
including transgender male, transgender female, male-to-female (MTF) and
female to male(FTM). It also includes cross-dressers (those who wear clothes of the
other), gender queer people (they feel they belonged to either both genders or neither
gender) and transsexuals. In India, Transgender are commonly known as Hijaras or
Kinnars and are observed to be different from the general class normative gender
roles i.e., they are neither said to be male nor female and this where whole problems
starts to relate where they are excluded in the society.
The manuscript endows a brief understanding about the importance of Trans genders
right in India along with the initiative taken by the Legislature and the stand of
Judiciary.. This article will also highlight the historical background behind the rise of
this community and the duty of state to protect the right of transgender community
being the most vulnerable section of the society.
INTRODUCTION
Transgender existence in India can be traced back to more than 4,000 years and is
also known for their auspicious role of bringing good fortune and fertility in a basic
social unit i.e. family. With the passage of time they have now been socially excluded
from the mainstream the general people and have been forced to face various
atrocities in their daily chores of their life and have been denied basic human rights.
Hijra is a Persian word translated as eunuch which is used in common parlance for
transgender community in India.
They are found in every region in the
281
country. Aravani is a term used for male-to-female transgender who undergo
genital modification through SRS (Sex Reassignment Surgery) or perform Nirwaan
which is a traditional mode of castration. This is a very ritualistic process282Kothi is
used for those who adopt a feminine role in same sex relationships, but do not live in
281
Available at escholarship.org/uc/item/6m5744jx.pdf, last visited on 10/02/2016 at 05:15 P.M.
282Available
at, https://soc384masculinities.wordpress.com/2015/04/24/hijras-indias-historical-
transgender/, last visited on 11/02/2016 at 05:15 P.M.
111
communes as Aravanis.283Jogtas/ Jogappas found in Maharashtra and Karnataka are

male to female transgender who devote themselves to the service of a particular
god.284
Now the problem persists is that the society only recognizes two genders fit for the
structure of the society i.e., male and female, leaving no space for recognizing the
third gender as a respectful part of the society. And thus transgender community faces
discriminations as neither their identity is recognized nor are their rights either by the
legislature or by judiciary at large. Transgender life is full of inequality, discrimination,
lower status in the society which is leading to social exclusion.285
Hijras had a lot of respect in time of the monarchs rule in India but after independence
a feeling of hatred has been developed towards them which have now taken form of
hatred and alienation of them from the society. There were no initiatives taken from
the side of the government to improve the status of the transgender and their livelihood
including the very basic needs for mere existence, respect being one of the most
important part of their survival. The repercussions related to these causes were that
they subjected or to phrase this right, they were forced to indulge in prostitution due to
illiteracy and poverty per se. Due to noprovision for education and professional skills
the suffering community has no employment opportunities in any field which resulted
into adding more vulnerability by way of earning through dancing during the family
celebration events like marriages and birth of any child.286But after the case of National
Legal Services Authority vs. Union of India and Ors287there has been certain
development on the upfront recognizing the rights of the transgender as equal to the
rights of either of the two genders.
The substantial question thus now posed before the Honble Supreme Court is that
recognizing transgender as a legal third gender is going to empower the transgender
in future and not exclude them much far from the society? Another major concern is
that, are the transgender going to accept the reforms in their legal status, they now
being recognized as backward class category and thus going for the reservation
system. State has a very vital role in this regard, as it under an obligation to protect
and upheld the right of the citizen irrespective of caste, class, religion, sex, and race
etc.288 In this scenario, fundamental rights enshrined in the constitution of India has to
be dealt with particularly article 14 i.e. Right to Equality and Article 21 i.e. Right to Life
Personal Liberty which also includes a right to a dignified life.289
HISTORICAL BACKGROUND AND SOCIAL EXCLUSION O F THE TRANSGENDER
283Supra
284
note 281 at p.2.
ibid.
285Available
at https://ed.stanford.edu/sites/default/files/inequalitymatters.pdf, last visited on
12/02/2016 at 03:45 P.M.

286Supra
287
note 283 at p.2.
AIR 2014 SC 1863
288D URGA
DAS BASU, COMMENTARY ON T HE CONSTITUTION OF INDIA VOL. I & II (Lexis
NexisButterworths, 8th ed. 2012 Reprint).

289ibid.
112
In the ancient religious and other Hindu mythological texts, the transsexual evidences
has been witnessed in many incidences of Ardhanarishwara, Ramayana,
Mahabharata290 and also there position was much stronger in Mughal era where they
guarded the ladies and the children and were in fact respected. The existence of
Transgender community third gender is witnessed from more than 4,000 years with
the ancient myth that they have the special power to bring luck and fertility.291 They
majorly have two cultural role whereby in northern region they earn their livelihood by
showering their blessing on the auspicious occasions as marriage and in southern
parts they earn as a sex worker, rather they are majorly recognized as a sex worker.
Gender is the psychological recognition where what one feels as an individual is
primarily considered whereas sex is merely a physical differentiation or external
appearance as a male or female as identified by the society.292
The hijras are directly associated and devoted to the Hindu Mother
Goddess, Bahuchara Mata who governs their existence and function within Indian
society.293 One all the ritualistic process has been carried out, the person enters in the
community of the hijras. These members of the community live together for protection
purposes and also because they do not interact directly with general society. Many of
the hijra women are excluded from outside work, finding much of their income and
livelihood stemming from prostitution and sex work.294 "Transgender" is an umbrella
term that is used to describe a wide range of identities, hijras (Eunuchs) being one. It
is applied to persons whose gender identity does not conform to their biological sex
(assigned at birth).295 In a country like India where religion and notions related to
certain norms prevails, transgender thus suffer a grave problem of social exclusion
and identity crisis.
The main problems that are being faced by the transgender community are of
discrimination, unemployment, lack of educational facilities, homelessness, and lack
of medical facilities: like HIV care and hygiene, depression, hormone pill abuse,
tobacco and alcohol abuse, splenectomy, and problems related to marriage and
adoption.296 They are socially stigmatized humans, deprived of their human rights. In
the British dominated era, transgender suffered from adverse atrocities and also it was
290Available
at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2845370/, last visited on 15/02/2016 at
02:22 P.M.
291Available
at http://www.newstatesman.com/world-affairs/2008/05/hijras-indian-changing-rights. last
visited on 15/02/2016 at 02:22 P.M

292ibid.
293Available
at https://soc384masculinities.wordpress.com/2015/04/24/hijras-indias-historical-
transgender/, last visited on 15/02/2016 at 02:22 P.M.

294Patel,
Amisha R. 2010. Indias Hijras: The Case for Transgender Rights. George Washington
International Law Review 42(4):835-863.

295George
D. Cameron III, International Business Law: Cases and Materials.
296Available
at http://m.iasscore.in/national-details-74.html, last visited on 15/02/2016 at 02:22 P.M.
113
a crime to be a hijra and they could then be arrested without any warrant facing a two
years punishment.297
In 1994 transgender got their right to vote, but there was a major issue as to where
their gender identity has to be settled as a man or as a woman. Subsequently, they
were denied their right to vote, marry and all such legal procedure whereby they were
forced to answer as to their gender identity. Not only this, social stigma attached to it
leads to indifferent attitude towards the transgender and they are thus not accepted in
the community of the generals, just two gender community, which leads to
homelessness. Due to lack of opportunities and mutual respect among the society
members and also due to lack in their education value, they are left unemployed which
in turns leads them to begging and prostitution practices. And they are also subjected
to violent behavior by the members of their society.
They also lack protection from police, this absence means ruffians find Hijras /TG
people as easy targets for extorting money and as sexual objects. A 2007 study
documented that in the past one year, the percentage of those MSM and Hijras who
reported: forced sex is 46%; physical abuse is 44%; verbal abuse is 56%; blackmail
for money is 31%; and threat to life is 24%.298 Social welfare schemes all over the
country works for the development of the backward reserved category but there is no
such welfare scheme that works for the development of the transgender communities
in general except few such as providing land for Aravanis in Tamil Nadu and also so
is the case there is no awareness among the transgender community.
Observing the trends from the history and the present scenario till date, they once did
enjoy a respectful status in the society but which is now shredded in into bits and
pieces. They now are the victim of the inequality, discrimination social stigma and the
notion of the society about their gender orientation. The government has shown least
concerns towards the transgender and their rights, thus no policies were then
formulated in this regard. Subsequently, the transgender communities have
themselves secluded further from the society which have increased suicide rates and
de-motivated their overall growth and development.
TRANSGENDER RIGHTS UNDER THE CONSTITUTIONAL OF INDIA
Before the independence of India the civil rights of transgender community had been
curtailed by the enactment of the Criminal Tribes Act, 1871.299 In the year 1949, when
India got independence the law was then repealed but the rights of transgender is still
under mistrust. There were no serious attempts to be made by the legislature of India
to remove this mistrust and provide them their basic civil rights. The society treats
transgender community as a total different class because of which they are
continuously being deprived of their basic civil rights. Peoples of the society
considered the transgender community as generally indulging in the criminal activities
like kidnapping, misbehaving with peoples, murdering, involve in prostitution. But the
situation is completely different as it is not the transgender community which involves
these criminal activities but it is the male and female who mainly does crimes.
297Available
at http://kristinamayhem.blogspot.in/p/the-hijras-transgenderism-in-india-man.html, last
visited on 19/02/2016 at 02:40 P.M.

298Available
athttp://m.iasscore.in/national-details-74.html, last visited on 10/02/2016 at 08:00 P.M.
299ibid.
114
The State is considered as one who provides the citizen of their basic rights so the
question arose here is that arent transgender comes under the definition of citizens?
Arent they have human right? The state ensure the rights of an under trial prisoners
or even a convicted person then why dont it considered the rights of transgender?Is
the society or the state is responsible? Being a minority in the society it is unfair to
give them access to their basic civil or human rights.
In view of the society, it thinks that the rights of transgender are not protected with any
sort of legislation or legal protection but it is nothing than a misconception of the
society. The Constitution of India has given legal protection to the transgender
community by ensuring equality, liberty and social justice to them.
Article 14 states that the state shall not deny to any person equality before the law or
the equal protection of the law within the territory of India.300It is a fundamental right
of any citizen not to be treated unequally on the basis of race, caste, sex, religion,
nationality. In other words they are not subject to any sort of discrimination on the basis
of their sex, they should get equality of status as also mentioned under the
Preamble.301Justice Bagwati in his landmark judgment of Maneka Gandhi v. Union of
India,302 states the equality is a dynamic concept and it should not be imprisoned
within the traditional and doctrinaire limits.303
Article 15(2) guaranteed them to access shop, public restaurants and places of
entertainment.304The society or the state in some or the other way prohibits the
transgender to access to shops, etc. and they were not allowed to use the public well,
tanks but due to enactment of Article 15(2) the trans genders got a right to live the life
like a normal human being and hence no one is allowed to violate this right.
The most important right to be given under the Constitution of India is of Right to life
and Personal Liberty,305which emphasize that no person shall be deprived of their life
and personal liberty except the procedure established by law.306 It also states that it
is not only a duty of the judiciary to protect the rights of the transgender but it is also
an obligation on the part of legislature to make laws and proper implementation by the
executive. By marginalization of the transgender community from the society the right
to live a dignified life is hampered.
Supreme Court in its famous judgment in the case of National Legal Services Authority
(NALSA) v. Union of India & Ors.307recognized third gender recognized at par with the
male and female. By this judgment, the social frame of only two genders has been
coming down since.
Human rights are basic rights and freedoms which are guaranteed to a human by
virtue of him being a human which can neither be created nor can be abrogated by
300Article
14 of the Constitution of India.
301Preamble
302AIR
of the Constitution of India.
1978 SC 597.
303ibid.
304Article
15(2) of the Constitution of India.
305Article
21 of the Constitution of India.
306ibid.
307
Writ Petition (Civil) No. 400 of 2012] filed in October, 2012.
115
any government. It includes the right to life, liberty, equality, dignity and freedom of
thought and expression.308 Transgender are also deprived from their basic human
right and faces identity crisis. State has now working for the upliftment of the
transgender community and has been formulating policies since.
A STEP FORWARD TOWARDS THE TRANSGENDER RIGHTS IN INDIA?
At present it is not the case where Indian laws in toto ignore the rights of the
transgender or seclude them the constitution itself. There has been inclusion of the
other gender in official documents such as identity cards as passport, voters card.309
But ghost of past are still horrendous, making the life of transgender a difficult one.
Section 36A of Karnataka Police Act, 1964 criminalizes the movement of transgender
in child abduction case and laid down procedure for arresting them without bail. Such
laws can be traced back to the historical context in the British era.
While India has made considerable progress on rights of transgender people in recent
years, most remain socially marginalized and deprived of basic rights, including the
right to vote, own property, marry, and claim a formal identity through a passport or
other government identification. They are frequently publicly ridiculed and excluded
from general society, enduring discrimination and humiliation from the police and
medical authorities.310
Although the Election Commission of India when took forward a revolutionary step by
including a other gender on the voter identity card in year 2009, only round about
28,000 voters registered but unfortunately there was less participation which directly
shows that there was lack of awareness among the transgender community or
conforming to the seclusion by the other two genders.
The rights for the Transgender Persons bill, 2014 was passed unanimously by the
parliament in year 2015311. This bill is indeed a positive step towards restoring equality
within the country when the talk is about transgender.
308Available
at www.ohchr.org/Documents/Publications/Compilation1.1en.pdf, last visited on
20/02/2016 at 08:00 P.M.

309Soman,
A. (2013). Penal Laws and Rights of transgender: International Perspective with Special
Reference to
Section 377 of the Indian Penal Code, 1860,. In K. Jaishankar& N. Ronel (Eds.), Second
International
Conference of the South Asian Society of Criminology and Victimology, SASCV 2013, Proceedings
(p. 278).
Kanyakumari, Tamil Nadu: South Asian Society of Criminology and Victimology (SASCV) &
Department of
Criminology and Criminal JusticeManonmaniamSundaranar University Abhishekapatthi, Tirunelveli.
310Available
at https://www.hrw.org/news/2015/07/20/india-back-equal-rights-transgender-people, last
visited on 20/02/2016 at 08:00 P.M.

311Available
at socialjustice.nic.in/pdf/TGBillFinal.pdf, last visited on 20/02/2016 at 08:00 P.M.
116
Social inclusion and safety by envisaging transgender courts, a separate one-stop

crisis helpline for transgender, pension and unemployment allowances, two percent
reservation in government jobs, welfare boards at the center and state level,
prohibition of all forms of discrimination in employment and the creation of short stay
homes.312 The bill provides establishment of National Commission for transgenders
and also affirmative actions in education, financial and legal aid, free cost sex
reassignment surgeries, skill development and Transgenders history museum.313
There is an urgent need to work on the literacy rates of the transgender community.
The drop out in school is more because of the everyday harassment and discrimination
faced from the peers and teachers. The proportion of those working in the transgender
community is also low thirty eight percent only.314 However this situation can be
handled with proper implementation of the above mentioned bill. For instance Tamil
Nadu has come forward with by forming a welfare board for the transgender which
allows the transgender to utilize government schemes more efficiently.
CONCLUSION
The past cant be amended but this transgender bill has brought fresh waves with it
promising a good future ahead, whereby discrimination and seclusion would be
properly dealt with. Already the transgender have faced centuries of dominance and
injustice done by the other two genders. But this is a high point very the mindset of the
society needs to be changed and the identity of the transgender have to looked with
sensitivity towards them keeping in mind all the past atrocities faced by them , their
sociological and economic status.
Media has to feel responsible for bringing out any such persisting atrocities against
the transgender community in front of the common masses. Not only this would help
the transgender to raise their voice against the injustice but also would help to change
the reticular mindset of the society at large.
The judiciary has taken a front foot by way of the judgment directing the society about
giving transgender their all basic human rights and equal opportunities as the other
two genders. The moot point over here is that, nothing can be done just yet until the
transgender considers themselves to be a part of this society and take initiative for
involving themselves in official forums and making proper use of the laws made for
their welfare
312ibid.
313Available
at http://thewire.in/2015/07/18/transgenders-step-up-demand-for-law-in-monsoon-
session-6691/last visited on 20/02/2016 at 09:00 P.M.

314
Available at http://timesofindia.indiatimes.com/india/First-count-of-third-gender-in-census-4-
9lakh/articleshow/35741613.cms, last visited on 20/02/2016 at 08:00 P.M.
117
GROSS NATIONAL HAPPINESS (GNH) IN BHUTAN:

HAPPINESS IS THE NEW PROSPERITY PARAMETER
MAYANK SAMUEL
NALSAR UNIVERSITY OF LAW, HYDERABAD
ABSTRACT
The research question that is sought to be explored vide this article is whether Gross
National Happiness (GNH) is a better indicator of prosperity when compared with
Gross National Product (GNP). The article does so by first studying the whole concept
in detail to have a clear understanding; the author then moves on to explore GNH in
light of the relationship between law and poverty. Two pieces have been chosen by
the author for the same, firstly Amartya Sens Capabilities and Resources from his
Nobel-prize winning work The Idea of Justice and secondly, Martha C. Nussbaums
Capabilities Approach from Frontiers of Justice. The article after discussing the
questions that have been raised on the efficacy of GNH concludes with a brief
discussion on the international recognition that GNH is starting to get in light of the
collapsing financial systems and rampant ecological degradation, raising questions on
the approach adopted for measuring a nations prosperity.
CHAPTER I
GNH: AN INTRODUCTION
Gross National Happiness: Brief overview
The idea of Gross National Happiness (GNH) which has emerged from the remote,
land-locked South Asian nation Bhutan measures prosperity, based on citizens
happiness levels, as an indicator of a countrys standard of living. 315 This is in
significant departure from the idea of Gross Domestic Product (GDP)316 which is the
generally accepted standard throughout the world, of a countrys economic prosperity.
There has been a substantial reformation in the living conditions in Bhutan in the last
three decades due to a meaningful economic growth. Having said that, despite such
considerable progress, a quarter of the 7.5 lakh people in the Himalayan Kingdom,
continue to grapple with absolute poverty.
Poverty in Bhutan: Brief overview
Poverty in Bhutan is predominantly a rural phenomenon, vide two factors: firstly, the
geographical location of various villages across Bhutan where, either the roads havent
reached or the rugged terrain itself makes transportation impossible and secondly, the
limited availability of resources and curtailed socio-economic development, making
the isolated village communities highly prone to poverty. The National Statistics
Bureau (NSB), Bhutan came up with the Poverty Mapping Tool (PMT) to produce
statistically reliable poverty estimates for gewogs (a group of villages) in Bhutan since
315
Gross National Happiness (Orville Schell), Bhutan- The Last Place, FRONTLINE World, available
at: http://www.pbs.org/frontlineworld/stories/bhutan/gnh.html.
316
GDP is the total market value of all final goods and services produced within a country in a year.
118
the Bhutan Living Standards Survey (BLSS) 2007 estimates suffered from a large
margin of error317.
PMT assisted in collection of data through household questionnaire survey from
poor households which were previously untouched by the district and national-level
surveys. This data collection was important in light of the moral and ethical duty of the
Royal Bhutanese Government under GNH to eradicate any form of poverty from the
constitutional monarch state. GNH indicators developed by The Centre of Bhutan
Studies such as Living standard and Psychological wellness find its application in
poverty measurement which envisages aspects such as consumption expenditure,
assets, housing and health.
Research Plan
The present article analyses GNH in detail as well as presents the grounds of criticism,
especially in light of the poverty prevailing in the land-locked state. Whether GNH is a
better indicator on comparison with GNP is the basic premise of this article. This
hypothesis has been examined by studying the four pillars and subsequently, the nine
domains of GNH in detail, followed by a thorough analysis of this concept in light of
Amartya Sens theory of Capabilities and Resources taken from his book, The Idea of
Justice and Martha Nussbaums Capabilities Approach from her acclaimed work
Frontiers of Justice. The article attempts to link the capabilities approach given by Sen
in Economics with the one given by Nussbaum in Philosophy; under this, each and
every individual is an end in himself and not a means for the end of other individuals.
The criticism levelled against GNP by the observers and locals has also been
discussed; the paper concludes with a brief discussion on the ripples GNH is making
on international platform as various countries seek to overhaul their development
plans on lines of GNH.
CHAPTER II
GNH: FOUR PILLARS, NINE DOMAINS
Gross National Happiness is more important than Gross National Product.318
-His Majesty Jigme Singye Wangchuk
The term Gross National Happiness (GNH) was coined by His Majesty Jigme Singye
Wangchuk, the Fourth King of Bhutan, in 1972 while opening Bhutan to the age of
modernization, in order to build an economy that would serve Bhutans culture based
on Buddhist spiritual values. GNH, explained by its four pillars of good governance,
sustainable socio-economic development, cultural preservation and environmental
317
P.4, Poverty Maps of Bhutan, National Statistical Bureau, available at:
http://siteresources.worldbank.org/BHUTANEXTN/Resources/3061481284655533176/Povertymaps.p
df.
318Dean
Nelson, Bhutan's 'Gross National Happiness' Index, The Telegraph, available at:
http://www.telegraph.co.uk/news/worldnews/asia/bhutan/8355028/Bhutans-Gross-NationalHappiness-index.html.
119
conservation implies an all-inclusive approach towards progress by giving equal

importance to non-economic aspects of well-being.319
These four pillars are further arranged into nine domains, namely: psychological
well-being, health, education, time use & happiness, cultural diversity & resilience,
good governance, community vitality, ecological diversity and resilience & living
standards. These nine domains are the principal elements constituting the welfare of
the citizens.320 GNH which can be termed as a unique approach to national as well as
global development strives for a calculated development in all walks of life in order to
achieve the ultimate objective of happiness through a sustainable socio-economic
growth.
GNH Index
The GNH Index is a single number index based upon a multidimensional procedure
called the Decomposable Threshold method or the Alkire-Foster Method and
developed, with the help of 33 sub-indexes, 72 indicators and 151 variables
categorized under nine domains, emphasizing the various techniques to meet the
underlying human needs and analyse the happiness level of Bhutanese citizens.321
There are two kinds of threshold under the GNH index:
Sufficiency threshold- The Sufficiency threshold illustrates the requirement

levels per citizen in a particular domain and whether it is adequate under the
33 sub-indexes. Such sufficiency thresholds were established keeping in mind
the international standards such as the millennium development goals,
International Labour Organization, national standards, normative judgments
and participatory meetings with the local communities.322
Happiness threshold- The Happiness threshold is determined by the number

of domains or the percentage of indicators wherein a person should achieve
sufficiency in order to be considered happy. For a person to be considered
happy, he/she should enjoy sufficiency in six or more GNH domains, that is,
more than 66% of the indicators.323
Nine Domains of GNH

Psychological well-being- Psychological well-being refers to the manner in
which people evaluate their lives either in the form of cognitions where
information provided is based on conscious judgments about ones satisfaction
with life on the whole, or in the form of effect based on the evaluation guided
319
Karma Ura, Sabina Alkire, Tshoki Zangmo and Karma Wangdi, A Short Guide to Gross National
Happiness Index (Note 4, P. 7), The Centre for Bhutan Studies, available at:
http://www.grossnationalhappiness.com/wp-content/uploads/2012/04/Short-GNH-Index-final1.pdf.
320
Pp. 7-9, id.
321
GNH: Concept, BHUTAN GNH INDEX, available at:
http://www.grossnationalhappiness.com/articles/.
322
Not yet happy more than happy, Bhutan News, available at:
http://www.yanatravel.com/2012/news/not-yet-happy-more-than-happy.html.
323
Supra n. 320.
120
by emotions and feelings which may have a positive or negative effect.324

Psychological well-being can be defined in terms of the experience and
perception of the citizens325 and therefore Bhutan, a strong proponent of GNH,
calls for the introduction of well-being indicators at par with the economic
indicators to bring citizens happiness on an equal pedestal with their economic
well-being.
324
Health- As the state policies increasingly advocate for advancement of health

and happiness of their citizens, there has been a gradual shift from the
economic front which had been their prime objective. Lus lu na tsha med, sems
lu sdug med, that is no physical illness and mental worries thus restating the
importance of good health as a significant component of happiness326 which is
analogous to the WHOs definition of health as a state of complete physical,
mental and social well-being and not merely an absence of disease or
infirmity.327
Education- Education is about discovering new things and increasing

awareness in order to differentiate between right and wrong. 328 Bhutanese
education adopts an all-encompassing approach with its foundation in
traditional values and skills which measure a persons intellectual aptitude as
well as his/her behavioural characteristics. Conventional education indicators
such as the pupil-teacher ratio, dropout rate are inadequate since it fails to
evaluate the learning outside the formal education systems329.
Time Use and Happiness- Time is an important but limited resource. Years of
continuous research culminated in Gary S. Becker formulating the theory of
time allocation in 1965 where time cost was equated with the cost of market
goods.330 Studies of time use supplied information on both paid and unpaid jobs
such as household chores and childcare undertaken for the preservation of
societies, which is often ignored while calculating the GDP of a nation. Time
use studies have enabled the academicians to understand poverty from a
different perspective. For example, in developing countries where family
members spend majority of their time at work, little time is devoted to leisure
Dawa Drakpa, Dhan Kumar Sunwar and Yeshi Choden, GNH- Psychological Well-Being in
Relation with Buddhism, Indo-Bhutan International Conference On Gross National Happiness Vol. 02
(October 2013), available at: http://iirpublications.com/papers/october/ijbi/C1101.pdf.
325PSYCHOLOGICAL
WELL-BEING, available at: http://www.grossnationalhappiness.com/9-domains/
psychological-well-being/.
326
HEALTH, available at: http://www.grossnationalhappiness.com/9-domains/health/.
327
WHO definition of Health, World Health Organization, available at:
http://www.who.int/about/definition/ en/print.html.
328Gaurav
Barr, Importance of education, The Hindu, available at:
http://www.thehindu.com/features/kids /importance-of-education/article4619651.ece.
329
EDUCATION, available at: http://www.grossnationalhappiness.com/9-domains/education/.
330
TIME USE AND HAPPINESS, available at: http://www.grossnationalhappiness.com/9-
domains/time-use-and-happiness-2/.
121
which is an important aspect of well-being. Hence, people in the lower classes

suffer from both economic and time poverty.331
Cultural diversity and resilience- The UNESCO Universal Declaration on

Cultural Diversity is the first international legal instrument recognizing the
importance of cultural resilience.332 Cultural resilience is a cultures capacity to
maintain their unique cultural identity through practices and ideals while
overcoming challenges and difficulties from other norms. This performs a
crucial role in the all-round development of an individual333 and promotion of
cultural diversity in the form of language, traditional art and craft, ceremonies,
music, dress and spiritual values.
Good Governance and Gross National Happiness- Different organizations give

different definitions of governance in different contexts. For example, the World
Bank identifies three facets of governance:(a) Form of the political regime
(b) Authority exercised for the management of countrys resources
(c) Governments capacity to formulate and implement policies334
On the other hand, the Canadian International Development Agency (CIDA)
defines good governance as exercise of power by various levels of government
in an effective, honest, equitable, transparent and accountable335 manner.
Good governance, as one of the nine domains intends to enhance the wellbeing of Bhutanese citizens by providing fundamental rights and a say in
political affairs.
331C.
Community Vitality- A community is a social group of people with common

activities and experiences inhabiting a specific territorial zone. 336 Emphasis is
Mark Blackden and Quentin Wodon (eds.), Gender, Time Use and Poverty in Sub-Saharan
Africa (P. 16), The International Bank for Reconstruction and Development/The World Bank (2006),
available at: http://siteresources
worldbank.org/INTAFRREGTOPGENDER/Resources/gender_time_use_pov.pdf.
332
UNESCO Universal Declaration on Cultural Diversity, United Nations Educational, Scientific and
Cultural Organization, available at: http://portal.unesco.org/en/ev.phpURL_ID=13179&URL_DO=DO_ TOPIC& URL _SECTION=201.html.

333
CULTURAL DIVERSITY AND RESILIENCE, available at:
http://www.grossnationalhappiness.com/9-domains/cultural-diversity-and-resilience-2/.
334
P.2, GOOD GOVERNANCE: AN OVERVIEW, International Fund for Agricultural Development
(IFAD), (8-9 September 1999, Rome), available at: http://www.ifad.org/gbdocs/eb/67/e/EB-99-67-INF4.pdf.

335
Governance, Foreign Affairs, Trade and Development Canada, available at: http://www.acdi-
cida.gc.ca/ governance.
336
COMMUNITY VITALITY, available at: http://www.grossnationalhappiness.com/9-
domains/community-vitality/.
122
required to be placed on the communitys life quality for growth since increase
in wealth might not necessarily increase the happiness.337
Ecological Diversity and Resilience- Bhutan appreciates the central role of

environment in human development under GNH and thus, makes it binding
upon every citizen under Article 5 (Environment) of the Constitution of Bhutan
to contribute to the protection of natural environment, conservation of the rich
bio-diversity and prevention of all forms of ecological degradation.338 The
domain includes three subjective indicators:(a) Perception regarding environmental challenges
(b) Urban issues and responsibilities
(c) Wildlife damage to crops.339
Standard of Living and Happiness- This domain refers to the material well-being
of citizens to guarantee the fulfilment of basic needs for a good, decent living.
Standard of living refers to the aspirations of an individual/group concerning
goods and services. This standard is also employed to compute the
consumption of goods by an individual340; hence it is one of the important
determinants of well-being. Improvement in living standards is the primary
objective of multiple social programs in both developed and developing
countries.
CHAPTER-III
POVERTY IN BHUTAN: THE PICTURE ISNT SO ROSY
Poverty in Bhutan
The Third Druk Gyalpo of this mountainous kingdom- Jigme Dorji Wangchuk- opened
Bhutan to the outside world in 1960s, embracing modernization in consistence with
the Buddhist culture and traditions. Though the nation bade farewell to a self-sufficient,
agricultural economy, agriculture continues to be the main source of livelihood even
today. And although Bhutan has the highest GDP per capita in South Asia, poverty
remains a serious socio-economic issue primarily due to the limited resources and
strong population pressure on the agricultural sector. In a country where 32% of the
population lives below the poverty line, agriculture is a source of income for 90% of its
337
David G. Blanchflower and Andrew J. Oswald, Is Well-being U-Shaped over the Life Cycle?,
Social Science & Medicine 2008, available at:

http://www.andrewoswald.com/docs/2008ushapeblanoswald.pdf.
338P.
11, The Constitution of The Kingdom of Bhutan, available at:
http://www.bhutanaudit.gov.bt/About%20Us/Mandates/ Constitution%20of%20Bhutan%202008.pdf.
339
Supra n. 318.
340
Standard of living, Encyclopaedia Britannica, available at:
http://www.britannica.com/EBchecked/topic/ 344816/standard-of-living.
123
citizens.341 However, availability of limited arable land due to the mountainous terrain
along with little irrigation facilities-the existing irrigation facility requires an overhaul as
well-has decreased the efficiency and thus, the sector output.342
Bhutans poorest people scattered throughout in the remote villages comprise
of farmers, small traders and day labourers. The rugged topography is the principal
cause of poverty in Bhutan since people in these villages have no access to social,
health and educational services in particular. This, in turn, gives rise to high illiteracy
rates as people with no formal, vocational training lack the requisite skills to improve
their living standards, thus failing to come out of the vicious circle of poverty. 343 Natural
calamities such as landslides, social breakdown disrupting families, inflation and fatal
diseases such as malaria and tuberculosis further intensify rural poverty.344 According
to the 2012 BLSS report, improving farmers access to markets through construction
of farm roads to the gewogs across Bhutan would result in an overall increase in the
income and hence, a decline in the poverty rates.345
Foreign aids and grants from international organizations have had an immense
impact on the poverty alleviation in Bhutan; schemes dealing with the construction of
health centres, schools, farm roads and providing agricultural equipment have
decreased the plight of citizens in isolated, remote villages. These schemes have not
only played a crucial role in poverty annihilation but have also reduced infant mortality
rates, achieved universal primary education and connected villages across the length
and breadth of Bhutan.
Poverty calculation in Bhutan
It is difficult to gather accurate income data in Bhutan for various reasons. For
example, citizens in the rural parts are often self-employed, at work on farms and small
businesses, and have no income records. People in the urban areas in hope of
governmental grants under Kidu346 often withhold their income information. In light of
the same, consumption-based measures gain relevance in poverty calculation in
Bhutan.
Consumption-based approach focusses on the household per capita
consumption which has a lesser degree of variation than the income-based approach,
thus providing the analysts with accurate data on living standards.347 As per the 2012
341
Poverty in Bhutan, Poverty reduction in South Asia, available at: http://web.worldbank.org/WBSITE/
EXTERNAL/COUNTRIES/SOUTHASIAEXT/EXTSAREGTOPPOVRED/0,,contentMDK:20574063~me
nuPK:493447~pagePK:34004173~piPK:34003707~theSitePK:493441,00.html.
342Rural
poverty in Bhutan, Rural Poverty Portal, available at: http://www.ruralpovertyportal.org/country/
home/tags/bhutan.
343
id.
344
Rabi C. Dahal, Drastic poverty reduction reflects growth: NSB, Bhutan Observer, available at:
http://bhutanobserver.bt/335-bo-news-about-drastic_poverty_reduction_reflects_growth_nsb.aspx.
345
Supra.
346
Kidu Foundation, available at: http://www.kidufoundation.org/.
347
Bhutan Living Standards Survey 2012 Report, Asian Development Bank and National Statistics
Bureau of Bhutan (2013), available at: http://www.nsb.gov.bt/publication/files/pub1tm2120wp.pdf.
124
BLSS Report, all Bhutanese households came within its ambit except the visiting
members of such households.348
CHAPTER-IV
GNH ANALYSIS: LAW AND POVERTY PERSPECTIVE
Amartya Sen- Capabilities and Resources (The Idea of Justice)
Wealth is evidently not the good we are seeking; for it is merely useful and for the
sake of something else.349
Wealth isnt a good indicator for the kind of lives we can lead as different people might
be provided with different opportunities to convert their income and other primary
goods for a good living. To put forth this point, lets consider the example of a person
suffering from serious infirmities, namely P1. P1 might be financially well-off with
resources at his disposal to lead a comfortable, luxurious life. On the other hand,
consider a young, able-bodied person namely P2 who has no physical or mental
disabilities; however he/she doesnt have a strong economic background and is
looking for a job to get two square meals a day. According to Sen, P1 herein cant be
said to be in a more advantageous position on comparison with P2 merely on ground
of a stronger financial position.
Sen proposes that while ascertaining the advantages underlying with the various
classes of people, it is important to consider the overall capabilities which they seek
to enjoy after the conversion of resources. The capabilities approach, according to
Sen, focuses not only on the resources owned by the citizens but also on their lives
as well as their actual ability to do different things, therefore proposing a fundamental
shift from the means of living to the persons actual opportunities.350 According to the
capabilities approach, GDP as an index for poverty-this is based on utilitarian
approach-fails to consider numerous key issues, primarily the differences between
every individual. It is hence suggested that utilitarianism is not the way to go about in
tackling poverty.
Sen considers poverty as a capability deprivation while discussing the possibilities
which result in variation in the conversion of income into the kind of lives that people
can lead:1. Personal Heterogeneities- People of the same age, gender and disability have
disparate physical characteristics, thus making their needs so diverse that
require different levels of income.
2. Diversities in the physical environment- Environmental conditions and climatic
circumstances affect an isolated individual in converting incomes and personal
resources into living.
348
id.
349
Nicomachean Ethics by Aristotle (translated by W. D. Ross), available at:
http://classics.mit.edu/Aristotle/ nicomachaen.1.i.html
350
Amartya Sen- Capabilities and Resources, The Idea of Justice, Belknap Press of Harvard
University Press (2009).
125
3. Variations in Social climate- Prevailing social conditions such as public

healthcare, education system, crime and violence and the community
relationships also influence the income conversion in a particular society.
4. Differences in relational perspectives- The discrepancy present in the
requirement for different levels of income is attributable to the established
patterns of behaviour in a community to achieve the same elementary
functioning.
An example of the same could be appearing in public without shame. As
a farmer in a village you could wear a ganji and lungi to work whereas while
working in a MNC, you require a more formal dressing to avoid shame.
While physical handicaps such as age, disability or illness might hinder ones
capability to earn, the situation becomes worse in case of an old, disabled person or
an ill, bed-ridden person who will require more income for treatment and assistance in
order to achieve the same functioning in life. This presents Sens idea of coupling of
disadvantages between various sources of deprivation which play a fundamental role
in the creation of public policies tackling poverty351; it only goes on to show that real
poverty, in terms of capability deprivation, is much more intense than poverty in terms
of income.352
GNH, as an idea, doesnt put much focus on individuality and hence, the
countless problems faced by a single individual since the underlying approach is to
generalize rather than see them in isolation. It does not reflect upon the divergent
physical characteristics of different individuals, variations in social climate, established
patterns of behaviour and the coupling of disadvantages between sources of
deprivation.
Martha C. Nussbaum- The Capabilities Approach (Frontiers of Justice)
Nussbaum provides an alternative to the economic-utilitarian approach, applying
Sens capabilities approach in philosophy. According to her, governments around the
world should implement certain core human entitlements as a bare minimum for
human dignity, which are provided by the human capabilities approach. 353
Nussbaums capabilities approach has a threshold level for each capability where the
chief purpose is to get an individual beyond such level, since each and every person
is an end in itself and not a mere means for the end of others.
This approach also lists out the inadequacies of GNP, currently foremost in life
quality assessment by economists and policy-makers. The GNP approach fails to
provide for equal distribution of income, hence countries with a similar GNP might
reveal huge variations which is unlike the capabilities approach and Kantian approach
that consider each person as a means to the social good. The GNP also fails to inquire
about key elements of human life such as life expectancy, employment opportunities,
political liberties and dignity.
351
id.
352
id.
353
Martha C. Nussbaums Capabilities Approach, Frontiers of Justice: Disability, Nationality, Species
Membership, Harvard University Press (2009).
126
Nussbaum, keeping in mind the conception of dignity of a human being, gives

a list of ten central human capabilities essential to lead a dignified life.354 Since
availability of resources as an index of well-being is inadequate due to discrepancies
in the needs and abilities to convert such resources into functioning, Nussbaum
declared these capabilities as general goals to be achieved in a fully just society.
The Central Human Capabilities355

Though Nussbaum provides an open-ended list subject to further modifications,
these capabilities are sacrosanct:o Life- Human life of normal length, that is, no premature death.
o Bodily Health- Good health along with adequate nourishment and
shelter.
o Bodily Integrity- Freedom of movement from place to place; includes
protection from violent assault and opportunities for sexual satisfaction.
o Senses, Imagination and Thought- Usage of senses to imagine, think
and reason in an informed manner while protected by freedom of
speech.
o Emotions- Emotional attachment to things and people in the form of
love, grief, gratitude and anger which is not influenced by fear and
anxiety.
o Practical Reason- Formation of a conception of good in addition to a
critical engagement with individuals life.
o Affiliation- Recognizing the concern of other human beings through
social interactions; no discrimination on grounds of race, caste, sex,
sexual orientation and religion.
o Other Species- Live in harmony with animals, plants and the world of
nature.
o Play- Able to laugh, play and enjoy recreational activities.
o Control over Ones environment- Free participation in political domain
to make efficient political choices. Also, right to property and seek
employment.
Nussbaums ten capabilities deal with issues previously left untouched by GNP
as well as accept the four types of possibilities proposed by Sen which can be
addressed with the help of such capabilities. While GNH contrasts Sens approach for
reasons discussed above, its four pillars of good governance, sustainable socioeconomic development, cultural preservation and environmental conservation along
with the nine domains are fundamentally similar to Nussbaums capabilities approach.
354
id.
355
Supra.
127
Nussbaum considers a number of social, political, cultural, environmental and

emotional values which are crucial for the development of human capabilities; so does
GNH through its four pillars and nine domains. The lone difference arising between
the two pertains to time management on which, surprisingly, both Sen and Nussbaum
are silent; however GNHs domain of time use appreciates the critical role of time in
human progress.
CHAPTER-V
CRITICISM OF GNH: EVEN THE BEST HAVE THEIR FLAWS
GNH offers a picture of distribution of happiness in the country, deciding who is happy
and who is not and subsequently, dividing the same into sub-categories such as
unhappy, slightly happy and largely happy. Evaluated on the basis of age, gender and
occupation as well as keeping in mind the dimensions and indicators; GNH is a useful
tool for the country leaders to monitor the overall happiness of the nation. However,
GNH as an index is difficult to define and hence, faces several implementation issues.
Despite the immense popularity of GNH Index in Bhutan it is often criticized for
being too subjective, causing difficulties in the exact measurement of happiness;
happiness results thus can be twisted to suit the interests of the government. Further,
the GNH definition and resulting happiness rankings may vary from place to place
since people in one country will use different indicators for progress and happiness as
compared to another. Prime Minister of Bhutan Tshering Tobgay is sceptical about
Bhutans pursuit of GNH. With critics referring to GNH as Government Needs Help,
he asserted that GNH shouldnt be over-used to ignore persistent problems like acute
unemployment, poverty and corruption in Bhutan.356
Foreign observers have also criticized GNH for covering the repressive and
racist policies which has prevented Bhutan from increasing the standard of living as
majority of the population pursues goods and services from GDP measuring
countries.357 Information provided by Bhutans National Statistics Bureau unveils two
shocking facts, firstly, Bhutanese women live in fear of domestic violence for
inconsequential reasons and secondly, local college-going students expressed a
strong desire to leave Bhutan for life.358
While GNH begins at home, basic amenities such as food, shelter and healthcare facilities are not available to the citizens; hence happiness in the real sense is
lacking. Though economic growth in itself might not create happiness, it nevertheless
constitutes a significant part of GNH since making employment and economic
opportunities available for the youth, full of aspirations and expectations, plays a
significant role in their happiness.359 An amalgam of the GDP and GNH approach to
356
Bhutan PM casts doubts over Gross National Happiness, BBC NEWS ASIA, available at:
http://www.bbc.com/news/world-asia-23545641.
357
Dr. David L. Luechauer, The False Promises of Bhutans Gross National Happiness, Global South
Development
Magazine,
available
at:
http://gsdmagazine.org/2013/07/21/the-false-promises-of-
bhutans-gross-national-happiness/.
358
id.
359
Randall Krantz, Growth National Happiness, KUENSEL ONLINE, available at: http://www.kuensel
online.com/growth-national-happiness/#.U0ZkpfmSySo.
128
explore Growth National Happiness should therefore be the way to go for overall
development.
CHAPTER-VI
CONCLUSION: IMPORTANCE OF HAPPINESS IN TODAYS WORLD
The essence of the philosophy of Gross National Happiness is the peace and
happiness of our people and the security and sovereignty of the nation.360
- His Majesty King Khesar, The 5th Druk Gyalpo
Bhutan, a place of ancient monasteries, fluttering prayer flags and staggering natural
beauty rejected GDP in 1971. Instead, it chose to go for national happiness which was
a novel approach towards development, measuring prosperity through formal
principles of GNH and the spiritual, physical, social and environmental health of the
citizens.361 Though GNH, which gives preference to the physical, mental, social and
environmental well-being over material well-being remained idiosyncratic initially, the
approach continues to garner support in the present world plagued by collapsing
financial systems and in light of the deterioration in physical and mental health and
rampant environmental destruction around the world.
GNH has, time and again, been discussed on various international platforms.
For instance, the United Nations Climate Change Conference 2012 in Doha
considered Bhutan as an example of a developing country where environmental
conservation and sustainability were the prime political agendas.362 Various countries
around the world seek to overhaul their development plans to bring it in consonance
with GNH and its nine domains for increased viability for the present and future
generations. The UN has also adopted Bhutans proposal to include happiness as the
Ninth Millennium Development Goal (MDG) considering its importance in well-being
of all global citizens.363
360
Gross National Happiness, Greenangels Financial, available at:
http://www.greenangels.com/resources/gnh/.
361
Annie Kelly, Gross national happiness in Bhutan: the big idea from a tiny state that could change
the world, The Observer, available at: http://www.theguardian.com/world/2012/dec/01/bhutan-wealthhappiness-counts.

362
id.
363
Happiness is now the 9th Millennium Development Goal, Gross National Happiness
Commission, available at: http://www.gnhc.gov.bt/2011/07/happiness-%E2%80%93-is-now-the-9thmillennium-development-goal/.
129
PROVISIONS RELATED TO SEDITION IN INDIA NEED AMENDMENT

NEETI RANA
LAW COLLEGE DEHRADUN, DEHRADUN
Abstract
Keywords: Sedition, Indian Penal Code, Kedar Nath, Free Speech.
Law has been modified and interpreted to incorporate safeguards so it may withstand
constitutional scrutiny. However, it still acts as an effective means to restrict free
speech, and has been used by contemporary governments for reasons that are
arguably similar to those of our former oppressive rulers. In this paper there are
manycases in favour of repealing the law of sedition. Through an examination of how
the law has been interpreted and applied by the courts even after it was read down in
Kedar Nath v. Union of India, it is argued that it is indeterminate and vague by its very
nature and cannot be applied uniformly. Further, the law was enacted by a colonial
autocratic regime for a specific purpose, which cannot extend to a post-independence
democratically elected government. An analysis of the cases of sedition before the
High Courts and Supreme Court show that the offence of sedition is increasingly
becoming obsolete. Problems of public order, which the law purportedly addresses,
may instead be addressed through other laws that have been enacted for this specific
purpose.
Affection cannot be manufactured or regulated by the law. If one has no

affection for a person, one should be free to give the fullest expression to his
disaffection, so long as he does not contemplate, promote or incite to violence.
-
Mahatma Gandhi
The law of sedition was introduced by Section 124 A of the IPC in 1870 as a draconian
measure to counter anti-colonial sentiments, and most major leaders of the
independence movement- including Gandhi and Tilak were tried under this provision.
This section requires two essentials:1. Bringing or attempting to bring into hatred or contempt or exciting or attempting
to excite disaffection towards, the Government of India.
2. Such act or attempt may be done (i) by words, either spoken or written, or (ii)
by signs, (iii) by visible representation.
Gandhi famously described Section 124A as the prince among the political sections
of the Indian Penal Code designed to suppress the liberty of the citizens.
Sedition, defined as the incitement to violence or disorder, whoever, by words,
either spoken or written, or by signs, or by visible representation, or otherwise, brings
or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards the Government established by law in India, shall be punished
with imprisonment for life, to which fine may be added. The punishment for seditious
offences is known to be especially harsh compared to other offence in the IPC. It may
attract a prison term up to seven years if one is found guilty of committing seditious
130
acts.364The highly subjective nature of the offence makes it necessary that courts
determine on a case to case basis if any threats is caused to the stability of the State
or its democratic order. Leaving such to legislative or executive feat only enables a
repressive government to undermine the free speech guarantee.
The offence is Cognizable, Non-bailable, Non-compoundable and triable by a Court of
Sessions365. The Supreme Court, being the protector of the fundamental rights of the
citizens needs to declare the law unconstitutional since the governments and its
agencies have strictly gone by the text of Section 124 A, though the Supreme Court
itself did not apply these principles to the speech of Kedarnath, the law declares in
Kedarnath has lost its potency Independent Indias governments seem to have found
great relief in having a provision on sedition. Amendments made to Article 19 of the
Constitution imposing curbs and validating them on the ground of reasonable
restrictions.
In Balwant Singh and Anr. Vs. State of Punjab366, Supreme Court held that the casual
raising of the Slogans like Khalistan Zindabad etc once or twice by two individual alone
cannot be said to be aimed at exciting or attempt to excite hatred or disaffection
towards the Government as established by law in India. In Bilal Ahmed Kaloo v. State
of Andhra Pradesh367, Supreme Court warned the Courts against the casual approach
in invoking this section. It is held that mechanical order convicting a citizen for offence
of such serious nature like sedition and to promote enmity and hatred etc. does harm
to the cause. It is expected that graver the offence, greater should be the care taken
so that the liberty of a citizen is not lightly interfered with.
ORIGIN OF SEDITION LAW IN INDIA:
The origin of sedition law in India is linked to the Wahabi Movement of 19 th century.
This movement, centred on Patna was an Islamic revivalist movement, whose stress
was to condemn any change into the original Islam and return to its true spirit. The
movement was led by Syed Ahmed Barlevi. The movement was active since 1830s
but in the wake of 1857 revolt, it turned into armed resistance, a Jihad against the
British. Subsequently, the British termed Wahabis as traitors and rebels and carried
out extensive military operations against the Wahabis. The movement was fully
suppressed after 1870. The term sedition was introduced by British in the Indian
Penal Code 1870. The first known use of Sedition law was against Queen-Empress
vs. Joginder Chandra Bose368, editor of Bangobasi, who was charged in 1891 for the
criticism of the Age of Consent Bill whereby he said that the bill was disastrous to
religion and was being forcefully imposed on Indians. He later apologized for what he
had written. It was also observed that: It is sufficient for the purposes of the section
that the words used are calculated to excite feelings of ill-will against the Government,
and to hold it up to the hatred and contempt of the people, and that they were used
with an intention to create such feeling. During freedom struggle, targets of this law
included renowned nationalists like Mahatma Gandhi, Bal Gangadhar Tilak and Annie
Besant. Later Bal Gangadhar Tilak was also tried under sedition law, who criticised
364
The Indian Penal Code, 1898, 124-A
365
The Code of Criminal Procedure, 1973, Schedule I
3661995
367Crl.
368
(1) SCR 411
A. No, 81/97
Queen Empress v. Joginder Chunder Bose, ILR (1892) 19 Cal 35.
131
the killing by Chapekar brothers but also blamed the British government for bringing
the situation in the country to a brink. Gangadhar Tilak was convicted on instigating
the revolutionaries and sentenced to six years of imprisonment.
The meaning of disaffection and disapprobation was further clarified by the court in
Queen empress v. Ramchandra Narayan 369 in which accusations against the editor
and proprietor of the Pratod newspaper for publishing an article entitled Preparation
for Becoming Independent. The Court did not agree with the notion that disaffection
was necessarily the opposite of affection, but it advocated that an attempt to excite
disaffection amongst the masses was to be construed as an attempt to excite political
discontent and alienation from their allegiance to a foreign sovereign. In Queen
empress v. Amba Prasad,370 the Court, however, held that even in cases of
disapproval ion of the measures of the government, if it can be deduced from a fair
and impartial consideration of what was spoken or written, that the intention of the
accused was to excite feelings of disaffection towards the government and therefore
it could be considered a seditious act. Thus disaffection would include the absence
or negation of affection as well as a positive feeling of aversion towards the
government.
In the Ram Nandan vs. State, the Allahabad High Court371 held section 124-A to be
unconstitutional citing that the section restricts freedom of speech (Article 19) in
disregard of whether the interest of public order or the security of the state is involved
and is capable of striking at the very root of the Constitution which is free speech. The
decision of the Allahabad High Court was overruled by the Supreme Court in the
Kedarnath Singh vs. State of Bihar (1962)372, The Constitution bench of the Supreme
Court explained the amplitude of sedition for the first time .Quite interestingly the court
adopted the view of the Federal Court in India that the gist of the offence of sedition is
incitement to violence or the tendency or the intention to create public disorder. So,
as per the Constitution Bench of the Supreme Court, a person can be charged with
sedition only if there is incitement to violence in his speech or writing or an intention to
create disorder. In this decision, five appeal to the Apex Court were clubbed together
to decide the issue of the constitutionally of section 124A of the IPC in light of Article
19(1) (a) of the Constitution. In the Courts interpretation the incitement to violence
was considered as essential ingredient of the offence of sedition. Here, the court
followed the interpretation given by the Federal Court in Niharendu Majumdar. Thus,
the crime of sedition was established as a crime against public tranquillity 373 as
opposed to a political crime affecting the very basis of the State. As a consequence,
sedition could only fall within the purview of constitutional validity if it could be read
into any of the six grounds listed in Article 19(2) of the Constitution. Out of the six
grounds in Article 19(2), the Court considered the security of the state as a possible
ground to support the constitutionally of section 124A of the IPC. The Court made use
of the principle that when more than one interpretation may be given to a legal
provision, it must uphold that interpretation which more than one interpretation may be
given to a legal provision, it must uphold that interpretation which makes the provision
369
Queen Empress v. Ramchandra Narayan, ILR (1898) 22 Bom 152.
370
Queen Empress v. Amba Prasad, ILR (1898) 20 All 55.
371
AIR 1959 Alld. 101
372
AIR 1962 SC 955
373
See Rex v. Aldred, (1909) 22 Cox CC 1
132
constitutional. Any interpretation that makes a provision ultra vires the Constitution
must be rejected. Thus, even though a plain reading of the section does not suggest
such a requirement, it was held to be mandatory that any seditious act must be
accompanied by an attempt to incite violence and disorder.
Subsequently, the soundness of the decision given by the Federal Court in Niharendu
Majumdar came to be discussed in great detail in King Emperor v. Sadashiv Narayan
Bhalerao374, this case, pertaining to the publication and distribution of leaflets
containing prejudicial reports, was heard before the Privy Council. The Judicial
Committee of the Privy Council opined that Niharendu Majumdar was decided on the
basis of a wrongful construction of section124A. In acknowledgement of the model of
literal interpretation followed by Strachey, J., in Tilak case,375 itasserted that the view
proposing the imposition of the offence of sedition only on the basis of suggesting
rebellion or forcible resistance to the government was inadmissible.376
Sedition and seditious and defamatory libel are arcane offences from a bygone
era when freedom of expression wasnt seen as the right it is today. Freedom of
speech is now seen as the touchstone of democracy and the ability of
individuals to criticise the state is crucial to maintaining that freedom.
-Claire Ward, UKs Justice Minister in 2009
DEVELOPMENT IN THE LAW POST-INDEPENDENCEAfter India attained independence in 1947, the offence of sedition continued to remain
in operation under section 124A of the IPC377. Even though sedition was expressly
excluded by the Constituent Assembly as a ground for the limitation of the right to
freedom of speech and expression, the right was still being curbed under the guise of
this provision of the IPC. On three significant occasions, the constitutionally of this
374
King Emperor v. Sadashiv Narayan Bhalerao, (1947) LR 74 IA 89
375
Where he had stated that such an interpretation would be absolutely opposed to the express words
of the section itself, which as plainly as possible, made the exciting or attempting to excite certain
feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible
resistance, the test of guilt.
376
King Emperor v. Sadashiv Narayan Bhalerao, [1947] L.R. 74 I.A. 89.
377
The Indian Penal Code, 1860, 124A. (Sedition. Whoever by words, either spoken or written, or
by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt,
or excites or attempts to excite disaffection towards, the Government established by law in India, shall
be punished with imprisonment for life, to which fine may be added, or with imprisonment which may
extend to three years, to which fine may be added, or with fine. Explanation 1 The expression
disaffection includes disloyalty and all feelings of enmity. Explanation 2 Comments expressing
disapprobation of the measures of the Government with a view to obtain their alteration by lawful means,
without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence
under this section. Explanation 3 Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do
not constitute an offence under this section).
133
provision was challenged in the courts. These cases shaped the subsequent discourse
in the law of sedition.
Following the decision in Niharendu Majumdar, section 124A was struck down as
unconstitutional in Romesh Thappar vs. State of Madras,378 Ram Nandan vs. State379,
and Tara Singh vs. State380. In Tara Singh, the East Punjab High Court relied on the
principle that a restriction on a fundamental right shall fail in to if the language
restricting such a right is wide enough to cover instances falling both within and outside
the limits of constitutionally permissible legislative action affecting such a right. 381
During the debates surrounding the first amendment to the 382constitution, the Prime
Minister Jawaharlal Nehru was subjected to severe criticism by member of the
opposition for the rampant curbs that were being placed on the freedom of speech and
expression under his regime. The criticism, accompanied by the rulings of the courts
in the fundamental judgements holding section 124A to be unconstitutional, compelled
Nehru to suggest an amendment to the Constitution.
Thus, through the first amendment to the Constitution, the additional grounds of public
order and relations with friendly states were added to the Article 19(2) list of
permissible restrictions on the freedom of speech and expression guaranteed under
Article 19(1) (a).Further, the words reasonable the word reasonable was added
before restrictions to limit the possibility of misuse by the government. In the
parliamentary debates, Nehru stated that the intent behind the amendment was not
the validation of laws like sedition. He described section 124 an as objectionable and
obnoxious and opined that it did not deserve a place in the scheme of the IPC.
In the Maneka Gandhi case, the Supreme Court had held that freedom of speech and
expression is not confined to geographical limitation and it carries with it the right of a
citizen to gather information and to exchange thought with orders not only in India but
abroad too. Thus, criticism against the government policies and decisions within
reasonable limit that does not incite people to rebel is consistent with freedom of
speech and expression. In todays environment the sedition law seems to be colonial
bogey which expects that citizens should not show enmity, contempt or hatred towards
the government established by law. However, slapping sedition charged merely on
words spoken or written should need to be avoided. Thus, in its current form, there is
a grey area which lies between actual law and its implementation. In many cases, it
has been randomly used. Thus the law needs amendments to minimize those grey
areas. However, such laws are necessary evils in a country like India where so many
divisive forces are acting in tandem. The need for such law is to deter the activities
that promote violence and public disorder.
378
Romesh Thappar v. State of Madras, AIR 1950 SC 124
379
Ram Nandan v. State, AIR 1959 All 101
380
Tara Singh v. State, AIR 1951 SC 441
381
Id
382
Narrain, supra note 42
134
SEDITION LAW LIABLE TO MISUSE

Chapter VIII of the IPC contains offences against public tranquillity. These include
being the member of, joining, hiring people to join, or continuing an unlawful
assembly.383 It also includes rioting, assaulting or obstructing a public servant trying
to suppress a riot, provocation with the intent to spark a riot, and promoting enmity
between different groups on the basis of religion, race, place of birth, residence,
language etc. Further, it also contains a provision for punishing acts that were
prejudicial to national integration. Minor squirmishes are covered by the crime of
affray which punishes the acts of two or more persons disturbing the public peace by
fighting in a public place. Thus, any such act that was prejudicial to the maintenance
of harmony would be punishable. This would also include the organisation of any form
of training activities to train for the use of criminal force of violence.
Thus, the crux of the crimes of sedition, violence, and public disorder, can be contained
by applying the aforementioned provisions of the IPC. The various states also have
specific legislation addressing the issue of the maintenance of public order.384
Consequently, there would be no need for a specific provision for the punishment of
acts committed against the state of government. Other provisions that are clearly
defined and less stringent may instead be applied. An obvious advantage arising out
of charging offenders under ordinary criminal laws as opposed to under the laws of
sedition is that offenders are not counter- productively marked out and legitimised as
political offenders rather than ordinary criminals.385
Additionally, the Supreme Court has also recognised the right of the citizens to gain
access to information.386 Given that most offences covered under sedition can
potentially be addressed b other provisions in criminal law, it might be difficult to justify
the retention of seditious offences in the statue books in light of its obsolescence. It
only serves the purpose of undermining the public interest in having access to
opposing political views.387 Such access cannot be denied merely on the grounds that
it might lead to the people adopting particular beliefs or acting on those beliefs.388
Though India has outgrown British colonialism, it remains trapped by the legacy of
colonial law, from Section 377 to Section 124 A. Nearly 70 years after independence,
sedition remains liable to misuse in India. Section 124 A lacks clarity and defines
sedition as being an immediate and likely incitement to lawless action. This allows
sedition charges under 124A to be used as a political instrument to harass journalists,
activists, and politicians. While the Indian Supreme Court has restricted Section 124
A to instances aligned with the spirit of the standard put forth in Brandenburg vs. Ohio,
lower courts mostly ignore these rulings. The result has been continued misapplication
383
The Indian Penal Code, 1860, section 141
384
See, e.g., the West Bengal Maintenance of Public Order Act, 1972; the Assam Maintenance of
Public Order Act, 1947; the Goa Maintenance of Public Order and Safety Act, 1972
385
Ben Saul, Speaking of Terror: Criminalising Incitement to Violence, 28 uns W LJ 874 (2005)
386
Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2 SCC 161
; AIR 1995 SC 1236

387
Eric barendt, Interests in Freedom of Speech: Theory and Practice in legal explorations: essays in
Honour of professor Michael chesterman 175 (Kam Fan Sin, 2003)

388
Eric Barendt, freedom of speech 170 (2006)
135
of sedition law for political purpose. The targets of the sedition law in recent years have
included author Arundhati Roy, due to her comments about Kashmir; cartoonist
Aseem Trivedi, for his publishing satirical cartoons condemning corruption; a group of
Kashmiri students,for cheering Pakistan during a cricket match; and a Tamil folk
singer, for satirising Tamil Nadu Chief Minister Jayalalitha. An immediate and likely
incitement of violence seems, to put it mildly, far-fetched in these cases, and is an
anachronistic throwback to the colonial era rejection of democratic dissent.
NEED TO AMEND SECTION 124AAmendment seeks to update the antiquated Section 124 A by redefining sedition to
only include words and actions that directly seek to incite violence, updating Section
124A to match global legal standards and removing the ambiguity that perpetuates its
misuse.
The amendment ensures that the Indian Penal Code will respect freedom of speech
and still, of course, punish calls to violence that could threaten national security.
Amendment would about the preservation of democracy, not partisan politics. It would
prevent misuse of sedition charges by governments of any political persuasion. The
targets of sedition cases are not the only victims; the misuse of sedition law to quell
dissent harms us all by undermine the spirit of Indian democracy, which relies on its
ability to accommodate and integrate a plurality of voices in the countrys governance.
Extinguishing disagreement is antithetical to the public reasoning and deliberation that,
fundamental to the survival and success of Indias robust democracy.
Many decades have passed since the creation of the republic, and the anxiety has
abated. Sedition has been applied against anti-nuclear protestor, a doctor, writers,
editors, professors and students. All of them were peaceful and non-violent. The
increasing use of sedition in the twenty- first century, no matter the government in
power, has set India upon dangerous, backwards- facing trajectory. Sedition is an
outdated offence, incompatible with modern India. It must be weeded out of law.
CONCLUSION:
The law of sedition has been defined by uncertainty and non-uniformity in its
application. By keeping its scope deliberately vague, generations of members of the
ruling political class have ensured that they have a tool to censor any speech that goes
against their interests. The courts have also been unable to give a clear direction to
the law. While the final position on the law in India was laid down as early as 1960, the
law of sedition is characterised by its incorrect application and use as a tool for
harassment.
An analysis of the judgement of the Supreme Court in Kedar Nath itself demonstrates
certain deficiencies in how the law is currently understood. There has been a shift in
how we understand security of the state as a ground for limiting the freedom of
speech and expression. Further, achange in the nature of the government and the
susceptibility of the common people to be incited to violence by an inflammatory
speech has also reduced considerably. Even the maintenance of public order cannot
be used as a ground to justify these laws as it is intended to address local law and
136
order issues rather than actions affecting the very basis of the State itself. Drawing
inspiration from the repeal of the law of sedition in England, it may also be argued that
the law of sedition is now obsolete. Various other statues govern the maintenance of
public order and may be invoked to ensure public peace and tranquillity. In light of the
above observations, it is time that the Indian legislature and judiciary reconsider the
existence of provisions related to sedition in the statute books. These provisions
remain as vestiges of colonial oppression and may prove to undermine the rights of
the citizen to dissent, protest against or criticise the government in a democracy.
REFERENCES:
Noorani, A G (2009): Indian Political Trials: 1775-1947 (New Delhi: OUP).
Samaddar, R (2010): Emergence of the Political Subject (New Delhi: Sage
Publications).
Singh, U K (1998): Political Prisoners in India (New Delhi: OUP).
Dhavan, R (1987): Only the Good News: On the Law of the Press in India (New Delhi:
Manohar Publications).
Donogh, W R (1911): A Treatise on the Law of Sedition and Cognate Offences in
British India (Calcutta: Thakker, Spink and Co).
137
INTERNATIONAL MECHANISM FOR THE INFORCEMENT OF

HUMAN RIGHTS
PRAKASH KHINCHI AND PRIYAL BOHRA
NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM
Abstract
This article talks about the different mechanism for the enforcement of Human Rights.
They are broadly divided into Charter-based and Treaty-based mechanism. Regional
mechanisms are also important for the implementation of Human Rights at the
international platform. United Nations play an important role in the recognition and
preservation of Human Rights globally. United Nations and its sub-bodies had
contributed in the issues of violation of human rights like in Europe, Africa, Arab and
America after World War II. The Regional Human Rights enforcement mechanisms,
after the Vienna conference on Human Rights 1993, play a fundamental role in
Promoting and Protection of Human Rights. There are certain cases in which
respective regional established Human Rights Mechanism bodies recognised
universal human rights. In Golderv. United Kingdom case, European Court recognised
right to be fair and public hearing under Article 6 of the European Convention Rights,
1950; Berrehab v. Netherland, recognition of right to respect of the family life of
resident aliens; Democratic Republic of Congo v. Burundi, Rwanda and Uganda,
African Court concern responsibility of state for a series of violation committed in the
course of the conflict in Democratic Republic of Congo. Various committees are
formed to secure economic, social cultural, elimination of racial discrimination of
human (Child and Women). There are also organisation for Labour, Health and
Industrial development by United Nations to Protect and Promote Right of individual
in their respective field.
1. Introduction
United Nations is the highest body that protects the Human Rights. The name "United
Nations", coined by United States President Franklin D. Roosevelt was first used in
the Declaration by United Nations of 1 January 1942, during the Second World War,
when representatives of 26 nations pledged their Governments to continue fighting
together against the Axis Powers. On 24th October 1945, the United Nations officially
comes into existence, when the Charter had been ratified by China, France, the Soviet
Union, the United Kingdom, and the United States and by a majority of other
signatories.
The term Human Rights was mentioned seven times in the UNs founding Charter
making the promotion and protection of Human Rights a key purpose and guiding
principle of the Organization. In 1948, the Universal Declaration of Human Rights
brought Human Rights into the realm of international law. Since then, the Organization
has diligently protected human right through legal instruments and on-the-ground
activities.389
There cannot be an International Protection of Human Rights unless there is strong
and effective machinery for its implementation. Implementation is the key to make the
389United
Nations, Protect Human Rights <http://www.un.org/en/sections/what-we-do/protect-human-
rights/index.html> accessed 29 February 2016
138
system of International protection of Human Rights effective.390 But the protection of

Human Rights in international level is a difficult problem because of a variety of
reasons. Firstly, the International Court of Justice is open to states only. 391It implies
that individuals have no access to the court. Thus it has always refused to entertain
the petitions and requests which have often been addressed to it by individuals.
Secondly, the jurisdiction of the International Court of Justice depends upon the
consent of the states involved and this has been done by a few states to disputes
involving Human Rights. Thirdly, even if the International court in a few cases is able
to render judgements against the State, which violates Human Rights, there is no
International Police to enforce the decisions of the court.392
The above limitations on the implementation of Human Rights at International level
makes it clear that the most effective way to implement Human Rights vests within the
legal systems of the different states. Domestic law of a state is required to provide an
effective system of remedies for violations of International Human Rights obligations.
International Human Rights law has not become that strong so as to enforce and
implement Human Rightsviolations committed by a state. However, a variety of
International bodies have been monitoring and dealing with the cases of violations of
Human Rights. A number of committees, working groups and special rapporteurs have
been setup to monitor the violations of Human Rights.393 We will discuss further about
the monitoring mechanism which look after the implementation of Human Rights.
2. Function and role of Human Rights Mechanism

2.1 Charter- based mechanism
The UN charter was not designed to address Human Rights, at least directly, but was
instead a mechanism primarily intended to maintain and secure international peace
and security.394 The brutalities of the Second World War nagged the human
conscience. Even during the war, the allies made declaration to preserve Human
Rights. The UN declaration of 1st January, 1942 clearly stated that complete victory
over their enemies was essential to defend life, liberty, independence and religious
freedom, and to preserve Human Rights and justice in their own lands as well as in
other lands.395
2.1.1 Human Rights Council
390Bilder,
Richard B., An overview of International Human Rights Law (University of Pennsylvania
Press 1999) 11
391Prasad,
Adabala Ravi, Human Rights enforcement machinery with special reference to the supreme
court of India (2013) <http://shodhganga.inflibnet.ac.in/handle/10603/8112 > accessed February 2016

392Art.
94, para 2, Charter of the United Nations
393Prasad,
court of India (2013) <http://shodhganga.inflibnet.ac.in/handle/10603/8112 > accessed 29 February

2016
394Ilias
Bantekas and Lutz Oette, International Human Rights Law and Practice, (Cambridge University
Press 2013)
395K.C.,
International Law & Human Rights, (1st edn, Eastern Book Company 2006)
139
On March 15, 2006, the U.N. General Assembly passed a resolution replacing the
Commission on Human Rights with a new Human Rights Council. The Council was
designed to be an improvement over the Commission, which was widely criticized for
the composition of its membership when perceived Human Rights abusers were
elected as members. The General Assembly resolution creating the Council modified
voting procedures, increased the number of meetings per year, and introduced a
Universal Periodic Review process to assess each member states fulfilment of its
Human Rights obligations, among other things.396The United States viewed the
Council as a critical element of overall U.N. reform. The Bush Administration identified
the establishment of a new Council as a key reform priority necessary to achieve a
strong, effective, and accountable organization.397
2.1.2 Universal Periodic Review
The universal periodic review is a creature born out ofan Assembly resolution 60/251.
It assumes that a human right council composed as far as possible of countries that
promote and implement human right can serve as a forum for a holistic, honest, yet
non-confrontational, discussion of each nations persistent Human Rights issues.398
The assembly made it clear that this reporting mechanism should not duplicate
existing reporting obligation, must avoid becoming burdensome to the UN and its
member states and should moreover add value to the promotion ofHuman Rights.
Charter-based reporting isno longer available, its last manifestation, a periodic selfreporting mechanism,399 having been formally terminated in 1980 as obsolete and far
too marginal to be any of relevance.400
2.1.3 Human Rights Council Complaint Procedure
Given the myriad individual complaint mechanisms available through the UNs treaty
bodies and regional Human Rights tribunals, an additional procedure seems rather
superfluous. This is all the more true considering that the so-called 1503
procedure,401 the predecessor to the councils current complaints mechanism, is
confidential, time consuming and oriented towards achieving a friendly settlement
with the culprit state, rather than addressing the plight of the victims.402
2.1.4 Special Procedures of the Human Rights Council
It was in 1980 that the then sub-commission based on promotion and protection
ofHuman Rights recommended to theCommHRthe establishment of a working group
396Luisa
Blanchfield,
The United Nations
Human
Rights
Council:
Issues
for
Congress
(30April2013)<https://www.fas.org/sgp/crs/row/RL33608.pdf> accessed 29 February 2016

397
U.S. Priorities for a Stronger, More Effective United Nations, U.S. Department of State publication,
(June 17 2005)
398Ilias
Press 2013)
399Resolution
624B (XXII), ECOSOC, (1 August 1956)
400Resolution
35/209, UNGA, (17 December 1980)
401Resolution
1503 (XLVIII),ECOSOC, (27 may 1970), as amended by ECCOSOC resolution 2000/3
(19 June 2000)

402Ilias
Press 2013)
140
on enforced or involuntary disappearances which were at the time common place

among South Americas dictatorial regimes.403The working group immensely
successful because it proved flexible and was able to visit numerous countries for onsite investigation, something which neither the commission nor the sub-commission
were able to do.404
2.2Treaty based mechanism
2.2.1 Human Rights Committee
The International covenant on civil and political rights established the Human Rights
Committee as the principal International organ of its implementation.405The committee
consists of eighteen individuals who are charged with carrying out the functions
stipulated in the covenant and the First Optional Protocol there to.406The committee is
composed of nationals of State parties to the covenant who must be persons of high
moral character and the recognized competence in the field of Human Rights. 407
2.2.2 Committee on Economic, Social and Cultural Rights
The International covenant on Economic, Social and cultural Rights, 1966 is the only
United Nations Human Rights treaty which did not establish a committee to oversee
and monitor the implementation of the covenant. The committee on Economic Social
and Cultural Rights was established by the United Nations Economic and Social
Council408 to carry out the monitoring functions assigned to the to the United Nations
Economic and social Council in part IV of the Covenant. It is the body of independent
experts that monitors implementation of the International covenant on Economic,
Social and cultural Rights by its State parties.409Drawing on the legal and practical
expertise of its members, the committee can also assist Governments in fulfilling their
obligations under the covenant, by issuing specific legislative, policy and other
suggestions and recommendations such that economic, social and cultural rights are
more effectively secured.410
The implementation of the Human Rights under the International Convention
Economic, Social and Cultural Rights through System of reporting is weak and has
many limitations. This is because of the general nature of obligation under taken by
the State parties to the covenant. The implementation of economic, social and cultural
rights depends upon the state of development in economic progress of the state
concerned. That is why Article 2 speaks of achieving progressively the full realization
of the rights recognized in the covenant. By undertaking to submit reports on the
measures they have adopted and made in observance of the rights recognized in the
Economic covenant the State parties have accepted some obligations in this respect.
403Resolution
404The
20(XXXVI), Comm HR, (29 February 1980)
Sub-commission had prior to 1980 set up intercessional and sessional working group, such as
those on slavery (1975) and the administration of justice (1974)

405Prasad,
court of India (2013) <http://shodhganga.inflibnet.ac.in/handle/10603/8112 > accessed 1 March 2016

406Art.
28 (1), International Covenant on Civil and Political Rights
407Art.
28 (2), International Covenant on Civil and Political Rights
408Resolution
409OHCHR
410
1985/17, ECOSOC, (28 May 1985)
FACT SHEET no.16 (Rev.1) 15
ibid
141
This will promote and strengthen International co-operation among states. Thus, even
though the system of reporting has several limitations and is definitely a very weak
method of enforcement yet it promotes International co-operation.411Moreover the
economic covenant recognizes and promotes International responsibility for providing
assistance such as furnishing of technical assistance for the achievement of rights
recognized in the Economic covenant.412
2.2.3 Committee on the Elimination of Racial Discrimination
The committee on the Elimination of Racial Discrimination was established under the
International convention on the Elimination of All forms of Racial Discrimination. It is
composed of 18 experts, acting in their personal capacity, which are nominated and
elected by State parties to the convention for a Four-year term. This committee is
empowered to oversee the implementation of the obligations accepted by the State
parties.413The committee monitors the implementation of the convention by examining
reports submitted by states parties which are due every two years. The states parties
are to submit their report within one year of becoming parties to the convention and
then once every two years.414 The committee is required to send annual report to the
General Assembly through the Secretary-General of the United Nations. In its report
the committee may make general recommendations and proposals on the basis of the
review of the reports and information received from the states parties. 415
2.2.4 Committee on the Rights of the Child
The committee on the Rights of the Child was established under the convention on the
Rights of the Child. It comprises of ten independent experts of high moral standing
and recognized competence.416The members of the committee are elected for a term
of Four years and are eligible for re-election. The main function of the committee is to
monitor the implementation of the convention on the Rights of the Child based
examination of state reports in close cooperation with the United Nations Childrens
Fund (UNICEF), Specialised Agencies and other competent bodies including NonGovernmental Organizations (NGO). It alsomonitors implementation of two optional
protocols to the convention, on involvement of children in armed conflict and on sale
of children, child prostitution and child pornography.417
The implementation machinery under the convention is very weak. It can simply make
suggestions and recommendation. Therefore, International co-operation and sincere
411Prasad,

412Kapoor,
Dr. S.K., International law and Human Rights, (Central law agency Allahabad 2007), 830-
831
413Art.
8, Convention on the Elimination of All forms of Racial Discrimination
414Art.
9, Convention on the Elimination of All forms of Racial Discrimination
415Prasad,

416Art.
43, Convention on the Rights of the Child
417Prasad,
142
national efforts are required to improve the lot of millions of children who are the victims
of violation of Human Right all over the world.418
2.2.5 Committee on Elimination of Discrimination against Women
The Committee on the Elimination of Discrimination against Women was established
pursuant to the Convention on the Elimination of all forms of Discrimination Against
Women419 It is the body of independent experts that monitors implementation of the
Convention on the Elimination of all forms of Discrimination against Women. The
Committee consists of 23 experts on the womens rights from around the world. In the
election of persons to the committee, consideration is given to equitable geographical
distribution and to the representation of different civilizations and legal systems. The
committees main function is to monitor the implementation of the convention based
on consideration of reports from State parties. The countries who have become party
to the treaty are obliged to submit regular reports to the committee on how the rights
of the convention are implemented. During its sessions the committee considers each
state party report and addresses its concerns and recommendations to the state party
in the form of concluding observations.420
The implementation machinery under the Convention on the Elimination of all forms
of Discrimination against Women is very weak and far from satisfactory by any
standard. It simply makes suggestions and general recommendations based on the
examination of reports and information received from the State parties. Indeed it is
much weaker than the Human Rights Committee established under the International
Covenant on civil and political rights. The convention of the Elimination of All forms of
Discrimination against Women is also conspicuous by absence of provisions relating
to inter-state communication systems.421
2.3 UN Specialised Agencies
2.3.1 International Labour Organization
International labour organization was established after the First World War on April 19.
1919 as an autonomous institution by the Treaty of Versailles and was associated with
the League of Nations. Its original Constitution formed part of the treaty of Versailles.
On October 9, 1946 the amending instrument was signed at Montreal which is cited
as the ILO Instrument of Amendment, 1946. ILO became the first specialized agency
associated with the United Nations when the agreement was approved by the General
Assembly on December 14, 1946.422
2.3.2 World Health Organization
The creation of a specialised institution in the field of health was proposed at the United
Nations Conference on International Organization at San Francisco in 1945. Later, in
1946, an International Health Conference, convened by the Economic and Social
Council was held in New York wherein the Constitution of WHO was drafted and
418
ibid
419Art.
420
17, Convention on the Elimination of all forms of Discrimination against Women
Prasad, Adabala Ravi, Human Rights enforcement machinery with special reference to the supreme

421
ibid
422H.O.
Agarwal, A Concise Book on International Law& Human Rights, (2nd edn, Central Law
Publication 2009)277-278
143
signed. The Constitution came into force on April 7, 1948. The objective of WHO is
the attainment by all peoples of the highest possible level of health, Health, as
defined in the WHO Constitution is a state of complete physical, mental and social
wellbeing and merely the absence of disease or infirmity.423
2.3.3 International Civil Aviation Organization
The Constitution of the international Civil Aviation Organization was drawn up by the
International Civil Conference held at Chicago in 1944. ICAO came into being on April
4, 1947 and became a specialized agency in October 1997. It is a part of the
convention on the International Civil Aviation. The aims and objectives of ICAO are to
study problems of International Civil Aviation, to establish international standards and
regulations for civil aviation; and to foster the development and planning of
international air transport.424
2.3.4 UN Industrial Development Organization
UNIDO was established on January 1, 1967 as integral part of the United Nations
system. Its purpose was to promote and accelerate the industrialization of the
developing countries. In the Second General Conference of the UNIDO held in Lime
(Peru), it was recommended that UNIDO be made a specialized agency of the UN. In
September of the General Assembly of the United Nations wherein the Lima
recommendation was endorsed, and a committee was established to draw up a
Constitution for the new agency. The Constitution of UNIDO as a specialised agency
was adopted by consensus on April 8, 1979 by a conference on Plenipotentiaries.
Consequently, on June 21, 1985 UNIDO became a specialized agency of the United
Nations.425
The primary objective of the UNIDO is the promotion of industrial development in the
developing countries with a view to assisting the establishment of a new International
Economic Order.426
2.4 Regional Human Rights Enforcement Mechanism
The charter of the United Nations has expressed grave concern for the Human Rights.
The guiding star of the International Bill of rights was the universal Declaration of
Human Rights (UDHR), 1948. It, for the first time, laid the foundation on which a
magnificent structure of Human Rights and Fundamental Freedoms could be erected.
Europe had witnessed the brutality of the Second World War and massacre of Human
Rights. At regional level, the European convention on Human Rights, 1950 was the
first such treaty. The other regional arrangement have also been made in the form of
European Social Charter , 1961; the American Convention on Human Rights, 1969;
the African Charter of Human Rights and People Rights, 1981; and the Arab
Commission on Human Rights, 1968.427
The Vienna Conference on Human Rights in 1993 stated in the declaration that
regional arrangement plays a fundamental role in Promoting and Protection of Human
Rights. The conference reiterated the need to consider the possibility of establishing
423Ibid
279
424Ibid
281-282
425Ibid
284-285
426Ibid
427K.C.,International
Law & Human Rights, (Eastern Book Company 2006)
144
Regional and Sub-Regional arrangement for the Promotion and Protection of Human
Rights where they do not already exist. The General Assembly at its forty-ninth session
by adopting resolution 49/189 reaffirmed that regional arrangement play a
fundamental role in Promoting and Protection ofHuman Rights and should reinforce
universal Human Rights standard, as contained in international Human
Rightsinstruments.428
2.4.1 European Human Rights System
The European Convention for the protection of Human Rights and Fundamental
freedoms, 1950 was adopted by the council of Europe. It was signed by on 4
November 1950 and entered into force on 3 September 1953. The preamble for the
convention expresses the resolve for the signatories to take the first step for the
collective enforcement of certain rights stated in the universal Declaration of Human
Rights.429
2.4.1.1 Rights and Freedoms given by the Convention
The convention imposed obligations upon the parties to secure within their jurisdiction
the rights and freedoms listed in it. The principle rights included the right to life, the
prohibition off torture, or inhuman or degrading punishment, the prohibition of slavery,
servitude, forced or compulsory labour, the right to liberty and security of person, too
fair and public hearing and other safeguard in civil and criminal trials, respect of
private and family life, home and correspondence, freedom of thought, conscience
and religion, freedom of expression, freedom of peaceful assembly and association,
the right to marry and found a family, right to an effective remedy before competent
national authority.430
Some of the decisions of European court of Human Rights are as under,431
Golderv.United Kingdom432- In this court, the court held that the right to be fair and
public hearing before an independent and impartial tribunal under Article 6 of the
convention includes right of a prisoner to legal aid and assistance.
Ireland v. UK433- Alleged ill-treated for the purpose of interrogation violates Article 3 of
the Convention which prohibits torture or inhuman or degrading treatment or
punishment.
Berrehabv. Netherlands434- Right of respect of the family life of resident aliens is
assured by Article 8 of the convention.
2.4.1.2 The European Social Charter, 1961
The European social charter- a multilateral treaty was sign at Turin on October 18,
1961, and come into force on February 26, 1965. It was adopted by the council of
Europe with a view to develop and protect social and economic right and to achieve
428H.O.
Agarwal, A Concise Book on International Law& Human Rights, (2ndedn, Central Law
Publication 2009)
429K.C.,
International Law & Human Rights, (2ndedn, Eastern Book Company 2012)
430K.C.,International
Law & Human Rights, (1stedn, Eastern Book Company2006)
431Starke,
International Law (11thedn,) 332-33
432Golder
v. United Kingdom(1975) 1 EHRR 524
433Ireland
v. UK(1978) 2 EHRR 2
434Berrehabv.
Netherlands(1988) 11 EEHRR 322
145
greater unity between its member for the purpose of safeguarding and realising the
ideals and principle which are their common heritage.435
2.4.2 Inter- American Human Rights System

The origins of the inter- American system date back to regional efforts in the
nineteenth century to strengthen cooperation based on mutual respect and nonintervention, which resulted in the establishment of the Pan American union in 188990.436Following World War II, in a process aimed at establishing a peaceful,
democratic and liberal regional order, the Organisation of American states (OAS) was
establish in 1948 by virtue of the OAS charter with twenty-one member states at the
time. One of its first steps was the adoption of the American declaration on the rights
and duties off man, 1948, which predated the UDHR. The American declaration had
a strong emphasis on civil and political rights.437
2.4.2.1 The Inter-American Commission for Human Rights
The commission was originally made responsible for developing awareness of and
furthering respect for Human Rights among the people of America. It was to serve the
OAS as an adviser on Human Rights it had no power to take action on petition from
individuals on alleged violation of Human Rights. In 1996, the statute of the
commission was amended and now the commission examines individual complaints
and make investigations on general observation of Human Rights in various American
states. It has reported its findings, e.g., reports on the situation regarding Human
Rights in the Dominican Republic (1961), situation of Human Rights in the Republic of
Haiti (1963) and status of Human Rights in Chile (1974). The commission, which is
composed of seven independent members elected by the OASgeneral assembly and
based in Washington DC, has a broad promotional and protective mandate.438
2.4.3 African Human Rights System
Human Rights formed part of the broader agenda of the Pan-African congresses in
the anti-colonial struggle prior too independent.439 However, the organisation of
African unity (OAU) established in 1963largely omitted any mention of Human Rights,
emphasising decolonisation, state sovereignty and development instead. It was only
in the late 1960s that proposal for an African Human Rights instrument began to be
put forward that ultimately resulted in the adoption of the ACHPR in 1981 and the
establishment of the African commission on human and people rights. It is the only
major Human Rights treaty that recognises a set of collective rights, including the right
435H.O.
Agarwal, A Concise Book on International Law& Human Rights, (2nd edn, Central Law
Publication 2009)
436D.
Harris and S. Livingstone, The inter-American system of Human Rights (Oxford: Clarendon Press
1998)
437IliasBantekas
and Lutz Oette, International Human Rights Law and Practice, (Cambridge University
Press 2013)
438Art.106,
439K.O.
OAS CharterandArt. 41, ACHR<www.cidh.oas.org> accessed 2 March 2016
Kufuor, The
African Human Rights System: Origin and Evolution (New York:
Macmillan 2010)
146
Palgrave
of development, the right to peace and security and the right to satisfactory
environment.440
Important institutional development includes in particular the establishment of the AU
in 2002.441 Significantly, the AU established a number of bodies and procedures with
a being on Human Rights and has generally assumed a more proactive role in this
field, albeit with a rather mixed record to date.442
2.4.3.1 The African Commission on Human and Peoples Rights
The African Commission is based in the Gambia and composed of eleven members
who are elected by the AU assembly of heads of state and government and serve in
their personal capacity.443 It has a broad mandate to Promote and Protect Human
Rights as laid down in article 45 ACHPR. Its promotional mandate include the
consideration of states parties reports, the study of Human Rights issues and country
specific situations, including by mean of fact-finding missions and a system of special
rapporteurs and working groups.444Commission concern a series of cases, mainly
brought by NGOs making use of the broad standing provided for in the charter, which
predominantly addressed mass violations.445
Conclusion
As we have discussed above that the United Nations is the highest body that protects
the Human Rights. Other than protecting human rights, UN also maintains peace and
harmony in world community. But there cannot be anInternationalProtection and
Promotion of Human Rightsunless there is strong and effective machinery
ofimplementationset of different issue that are regional issues which are varies from
country to country according to situation and regional problem. Earlier it was that only
state can participate or represent issue at international platform or International Court
of justice but now individuals also have liberty or right to questioned law or act of a
particular person or state or country.Though International Human Right Law is not so
strong to enforce and implement restriction on the state which violates human rights
so domestic law must be able to provide effective systems to deal with the issues of
human rights and provide remedies for the violations of International Human Right
obligation.
United Nations hasmonitoring mechanism for governing actions of the states and
implementsHuman Rights through Charter-based mechanism and Treaty-based
mechanism. After the World War II, there was violation of Human Rights at regional
440Art.
441R.
19-24, ACHPR
Murray, Human Rights in Africa: from OAU to the African Union (Cambridge University Press
2004) 1-48 and F. Villjoen and L. Louw, State Compliance with the recommendation of the African
Commission in Human and Peoples Right, 1994-2004, (AJIL 101, 2007) 151-69
442F.
Villjoen and L. Louw, State Compliance with the recommendation of the African Commission in
Human and Peoples Right, 1994-2004, (AJIL 101, 2007) 169,212

443Art.
444F.
133, ACHPR
Villjoen and L. Louw, State Compliance with the recommendation of the African Commission in
Human and Peoples Right, 1994-2004, (AJIL 101, 2007) 289,390

445Krishna
Achuthan (on behalf of Aleke Banda), Amnesty International (on behalf of Orton and Vera
Chirwa), Amnesty International (behalf of Orton and Vera Chirwa) v. Malawi, 64/92-68/92-78/92 (1994)
147
level like Europe Africa, America and Arab, so the effective implementation of human
is necessary. In 1948, the International Bill of Human Rights was constituted and the
main contribution of this bill was universal Declaration of Human Rights (UDHR). For
the first time after International Bill of Human Rights, 1948, the magnificent structure
of Human Rights and Fundamental Freedoms could be erected. The Vienna
conference on human rights stated in the declaration of 1993, that, regional
arrangement plays a fundamental role in Promoting and Protection of Human Rights.
Due to the strong implementation and effective mechanism of United Nations, a
violation of Human Right at international level is lesser compare to previous years.
Since 1945, a number of international human rights treaties and other instrument have
adopted to expand the scope of international human rights law. The united nation
human right mechanisms had taken the issues related to the human rights to
everyones notice and resolve the problems to a great extent.
148
ANALYSING STATELESSNESS AND ITS INDIAN PERSPECTIVE:

AN ALMOST UNEXPLORED HUMAN ENIGMA
PRASHNA SAMADDAR
RESEARCH SCHOLAR, WEST BENGAL NATIONAL LAW UNIVERSITY OF
JURIDICAL SCIENCES (WBNUJS) KOLKATA
Abstract
Statelessness has been a much talked about arena in just few decades ago in
international community. It is not very old that statelessness is deciphered and dealt
independently of refugees. But while it is being taken seriously, there are certain grey
areas in the phenomenon on which there is a varied range of opinion. Mainly this
phenomenon is characterised by lacking nationality but there are situations where
mere presence of nationality provides parallel perils in ones life. Moreover the trickling
effect of international efforts on making nations conscious about its nationals and
nationality laws is a very important factor to implement a better world for stateless
population. India being a country where there is a rich past of migration and refugee
is involved can also be expected to have accommodated certain population going
through the anomalous life of being stateless. But due to a very feeble conscious effort
to highlight that, India is still under an almost unexplored land for determining
statelessness. Though certain undaunted efforts have been initiated by United Nations
High Commissioner for Refugees and some of the research groups to outline the kind
of statelessness present in India, still a lot is yet to achieve. The present article
provides a bird eye view of what statelessness is all about and how its typology is
understood under international law. In addition to this, the chief reasons for which
statelessness occurs has also been discussed and the Indian scenario on
statelessness has been deliberated so as to make it clear that how this aspect is
understood under Indian context. Lastly, the challenges faced by India and how it
could be tackled has been highlighted in the concluding part.
Keywords: Statelessness, India, Nationality, Migration, Human Rights
Introduction
Universal Declaration of Human Rights, 1948 under Article (15) ensures that, every
individual has a right to nationality and should be arbitrarily deprived of the same. In
addition to this international instrument which guaranties a wide range of rights to
every individual taking birth on this globe, there are host of other international
instruments which glorifies the principle of having nationality of any state (as it is
interpreted under International Law) around the world and negate any possible
discrimination which can prejudice the national recognition of an individual as a subject
of any state. If this theory is taken as an epitome then there should be no person in
the entire globe who will be having nationality issues specifically in regard to its nonretainment or unprotected. But in real pretext there are almost 10-12 million people
around the world who are fighting with a pragmatic situation of no nationality. 446 This
humane situation has been termed as, statelessness by the international community.
However the entire phenomenon has never been defined under international law.
Efforts has been taken with lot of impetus to define who are stateless persons in1954
446UNHCR,
Statistics on Stateless Persons, http://www.unhcr.org/546e01319.html, (September, 2013)
149
Convention Relating to the Status of Stateless Person under Article (1). According to
the definition, a stateless person is a person who is not considered as a national by
any state under the operation of its law.447 So, it is well understood that in spite of the
presence of such international instruments which ensures that an individual should
always enjoy his/her right to nationality, there are more than a believable count of
population who are out of the purview of enjoying such right. For a long time
international law was unaware or rather could be said left this plight of human crisis
unnoticed, it was only after the Second World War, that the problem of statelessness
starting gathering attention of international community.448But since then the affectivity
with which awareness of the concerned phenomenon should reach to every nook and
corner of the world is severely lacking. According to United Nations High
Commissioner for Refugees (hereafter UNHCR), by 2013, there were only 75 states
who had a reliable statistics of stateless people within their territory, and 19 states
were those where there was considerable population being stateless but with no
reliable data.449There are two chief Conventions which addresses the specific issue of
statelessness. One is 1954 Convention Relating to the Status of Stateless Persons
and other is the 1961 Convention on Reduction of Statelessness; where the former is
chiefly purposive for defining stateless people, to regulate and improve their status
and to assure their enjoyment of fundamental rights as much as a national; the latter
mainly focuses on the reduction, future prohibition and elimination of statelessness.
Ideally every state should be a signatory of these two Conventions and largely ensure
that no one should remain without nationality in their respective territories, but
according to the most recent update of UNHCR, there are 88 state parties to the 1954
Convention and there are 92 state parties to 1961 Convention;450yet many more
expected. However, there can be certain limitations due to which some states cant be
a signatory of any of the conventions specifically related to refugee or stateless
aspects. In some other cases, states doesnt even realise the necessity of being a
party to the related conventions and consider these issues as not so important
subjects to be addressed and taken care of.
Catagorisation in being stateless
Statelessness as has been said earlier is a phenomenon. This phenomenon involves
the entire premises of nationality and its protective regime to the individuals of a
particular state. Nationality is chiefly known as that link of an individual with a state
which signifies the legal tie up amongst both the entities. Nationality secures an
individuals position within a state and provides the sense of security and wellbeing
within and outside the territory of the respective. It majorly signifies that connection
due to which the sense of belongingness arises within an individual. All these factors
are pivotal for enjoying the array of rights which individuals are entitled to for leading
a healthy life. Though in normal course of living one doesnt or rather cant realise the
importance of nationality as it is regarded a sine qua non for any individual in default.
447Convention
Relating to the Status of Stateless Persons, September 28, 1954, ECOSOC, Resolution
no. 526 A (XVII)

448
Martin Stiller, Statelessness in International Law- A Historic Overview, 37.DAJV Newsl. 94, 2012
449
UNHCR, supra note. 2
450450
UNHCR, Global Appeal 2016-2017, p.159
150
It becomes clearly evident for those who had face those barriers restricting them to
enjoy some of the very basic rights and privileges.
As has been mentioned earlier, stateless persons are those who are not considered
as nationals by any state around the globe under their legal interpretation, those which
fulfils this condition, are called as de jure stateless by the international community.
But, it has been realised by witnessing various human situations at different times that,
many individuals around the globe are such who have a nationality but cant claim the
same due to various reasons and consequently stay outside the protective regime
which operates alongside nationality. The category of such nature has been named
as; de facto stateless. Their lives become equally miserable in matter of barriers
faced by those who doesnt retain nationality at all and in some cases much worse
than the latter. However under international law there is a very frail mention of this
category of people and disagreements are more to call them stateless people at all.
But having said that, both the Conventions (1954 & 1961) has a mention of this
category of statelessness; where the former in its Final Act recommends that;
each contracting state, when it recognises as valid the reasons for which a
person has renounced the protection of the state of which he is a national,
consider sympathetically the possibility of according to the person the treatment
which his accorded the stateless persons; and that in such cases where the
State in whose territory the person resides has decided to accord the treatment
referred to above, other Contracting States also accord him the treatment
provided for by the Convention451
The later recommends in its Final Act, Resolution (I) that;
that persons who are stateless de facto should as far as possible be treated as
stateless de jure to enable them to acquire an effective nationality,452
respectively.
However both the Conventions have included its mention in the recommendation part
of Final Act in each cases, hence an analogy can be drawn that neither of the
instruments have emphasised on a compulsory obligation to accept de facto aspect of
statelessness but has left a large space for interpreting the situation and if found
satisfactory then can be given the importance as will be given to any situation of de
jure statelessness that to in sweet will of the state where the group is residing. But the
optimistic part is that, international law even cant deny that situations can arise where
a person could become stateless de facto and thus though very marginally but opens
up an arena of consideration and further exploration.
As the Convention leaves an unlimited space of interpreting and considering the
positions leading to de facto statelessness, a wide range of views have cropped up by
the academia on statelessness later where some even deny to accept it as a situation
451
Final Act of the United Nations Conference on the Status of Stateless Persons, p. 3-4,
http://www.ehu.eus/ceinik/tratados%5C16TRATADOSSOBREREFUGIADOS%5C161RefugiadosApat
ridasyAsilo%5CTR1615ING.pdf,
452
United Nations Conference on the Elimination or Reduction of Future Statelessness, Final Act of the
United Nations Conference on the Elimination or Reduction of Future Statelessness, Document:A/CONF.9/14 and Add.1, 1961
151
to be taken under consideration at all,453 whereas for others, it is a valid situational

aspect which is even more complex than that of de jure stateless.454But in both the
cases, this terminology and school of thought is considered very vague and leave
space for analysing and interpretation. In the present paper however, both the
situations have been equal cognizance and interpreted that both the situations are an
anomaly leading to bliss less lives.
Factors bring in Statelessness
There are multiple factors or reasons for which both the catagorisation of
statelessness arise in the world. Mostly all of them arises out of state arrangements.
As agreed upon by the international law time and again that nationality is something
exclusively conferred and dealt by the exclusive jurisdiction of sovereign powers in
their respective territories,455 statelessness, which is fundamentally a lack of it, is also
a result of various state related factors. One of the most prominent reason is, State
Succession. It is the phenomenon recognised under International law where there is
a transfer of sovereignty over a territory form one state to another. Now such situations
may arise when a state is overpowered by any other state, where a state has been
dissolved into multiple states or even where an independent state emerges by
seceding itself from a state.456 In all such cases there may arise a contingency to
consider who its nationals are and who are not. The newly framed nationality laws may
consider various grounds as prima facie requirement to qualify individuals as its
nationals. This consequentially arises a situation whereby individuals may strive for
determining their nationality status and end up being stateless. Dissolution of USSR
is one such glaring example which has resulted in thwarting considerable population
as stateless. 1947 Partition in India and emergence of Pakistan and later Bangladesh
has made many people displaced from their generation old dwelling places and made
them susceptible to lose their nationality or retain them at the whim and fancy of
respective states.
Another reason of causing statelessness is disparity in Nationality Laws among the
states. There are two basic tenets on the basis of which nationality is conferred upon
an individual i.e.jus soli and jus sanguinis. The principle which recognizes that taking
birth in a territory is a sufficient ground for conferring nationality, is called as jus soli
and the concept which is based on family lineage and parental ties as the basic tenet
for deciding the nationality status is termed as jus sanguinis. These processes are
followed by all the states whether singly or in combination to confer nationality to its
subjects. Now the nexus of this nationality determining principles with that of
statelessness arises when there is a populational exchange in between countries
practising two types of nationality principles singly. This mainly affects the nationality
status of children taking birth. If a child takes birth where the state practices only jus
sanguinis and the parents belong to such a country where jus soli is strictly adhered,
453Jason
Tucker, Questioning de facto Statelessness by Looking at de facto Citizenship, University of
Bath, p.2, https://www.academia.edu/4346023/Questioning_de_facto_statelessness_by_lo (1).pdf

454De
jure vs. De Facto Statelessness, The Weave, http://weavenews.org/blogs/faerog10/6244/de-jure-
vs-de-facto-statelessness (last updated 13 December, 2012)

455PCIJ
Advisory Opinion on the Tunis and Morocco Nationality Decrees Case, 1923; Article (1) of The
Hague Convention, 1930

456Article
(1), The Vienna Convention on The Succession of States in Respect of Treaties, 1978
152
hence the country where the child will take birth will not confer him/her the nationality
of that state because parents have a different nationality and the country from where
the parents originally belong to will deny the nationality because the child in question
has taken birth in some foreign territory outside its sovereign authority. Resultantly the
child under question will be stateless until there is an option of naturalisation and that
is opted by the child and they (child and parents) are aware of it. Hence in such cases
of disparity in nationality laws there involves a great risk of creating statelessness.
This anomaly may also happen due to discriminatory citizenship laws practices within
a state. Some of the states, citizenship is automatically lost if citizens of such country
stay outside its territory for a prolong time period continuously.457In significant number
of countries citizenship can only be transferred by the father and women are restricted
in transferring the same which creates a big barrier for countless children to receive
nationality from their mothers in case women is a single mother or fathers nationality
is not known. There are twenty seven such countries around the world which employed
restrictive nationality laws. In certain other cases, ethnic conflicts among various
indigenous group in a state and racial discriminationsraises the number of stateless
population around the world. Some of the states practice the process of ethnic
cleansing to achieve an environment of cultural homogenisation in its territory and
while doing it affects the minority population by expelling them or by stripping of them
from their nationality. The biggest refugee group of todays world who are stateless
also in many cases (de jure or de facto) are Rohingyas from Myanmar. They are the
glaring examples of such group who is presently facing the wrath of ethnic cleansing.
Some of the scholars have also emphasized upon climatic reasons as a potential
reason which can cause statelessness in future. This kind of incident is though an
unprecedential event till now which the international community has witnessed but
there are some of the states which are at highest risk of getting submerged with the
rising sea level. If such a condition arises then there can be situations in which the
states under such climatic threat can disappear and can consequentially make their
citizens come under the direct domain of being stateless. Some of the States which
are undergoing such serious threat and can face such an untoward event are; Kiribati,
Maldives, Tuvalu and some more. The Inter-Governmental Panel on Climate Change
(IPCC) has emphasised that such kind of contingency can bring uncounted people on
the verge of either being stateless de jure or asylum seekers at large.458These are
some of the dominant reasons which have been striked out as the chief reasons for
which statelessness aroused in past and can arise in future.
Statelessness around the World
As mentioned earlier, until recent statistical count by UNHCR on stateless people all
over the world (specifically who are de jure stateless and in most of the cases are not
refugees) are about 10 million. This chunk of population who are uncounted under the
demography of any recognised state around the world is not clustered in one part of
the world exclusively, they are scattered around the entire globe almost. Whether it is
457Carl
Grainger, UNHCR Ireland, The Global Phenomenon of Statelessness: Causes and Solutions,
(July, 2012), http://humanrights.ie/international-lawinternational-human-rights/the-global-phenomenonof-statelessness-causes-and-solutions

458Tasmia
Persoob, The Unheard Voices: Stateless People of South Asia, Osaka University Knowledge
Archive, p.200
153
Europe, Africa or Asia; statelessness is not something new for any of the Continents.
In fact according to the most recent statistical survey on area wise stateless population
of the sections divided by the UNHCR for its study purpose, Asia and the Pacific is the
most densely populated area with stateless persons.459 This is moreover only that
picture which is represented out of the numbers where Countries have made survey
and come up with an exact count, there are number of such nations where
statelessness is believed to have existed or is still existing but theres a sheer absence
of reliable data. But yet again it is a pressing issue that, out of the present statistics,
Asia and the Pacific is in top of the list for being home to stateless person.
Statelessness in Asia and the Pacific
If the exact number is taken into consideration leaving behind the hidden plight of
statelessness, Asia and the Pacific is the most affected region in the world. Under its
stateless mandate UNHCR has reported 1,422,850 people stateless only in Asia by
the end of 2014.460 There are six such nations in Asia and the Pacific where the count
is more than 10,000 (a number kept as a reference limit by the organisation for their
survey purpose) and nine such nations where there is a susceptibility of high risk of
stateless population but no reliable data is available and hence has been
asterisked.461Thus the total is of fifteen such countries which is home to the
abovementioned or rather more stateless people. In addition to this, it has been
emphasised by the report that there may be certain more countries where chances of
finding out stateless population is very high but are yet not marked as such by UNHCR.
India is one among such countries which are asterisked by the report. Hence, it is quite
understandable that Indian scenario is also not very green in matter of statelessness,
there is a hidden plight of statelessness in Indian context which is yet to be discovered.
Statelessness in India
India is a country which has a long tradition of migration to and fro from its territory.
Not only that it has witnessed uncountable human displacement, it has been a land
where the colonisation has changed the nations portrayal in its every possible
manner. Whereas the pre-colonial period in India was a homeland of prosperity and
thus attracted number of invasions some out of them being such effective which has
changed the entire sociological fashion of the country, the colonial period was a
cataclysmic event for the nation. Not just because it has brought an autocratic form of
ruling the Indian subjects for a period of about 200 years but also due to its
catastrophical aftereffect in the form of territorial reorganisation and emergence of
nascent state with plethora of human issues to be addressed within no time. In the
history of migration, 1947 Partition of India has occupied a distinctive place. The array
of disasters which it has caused has affected an uncountable population, the extent of
which may be still unmeasurable. Human displacement during this reign of partition
has provided with some new chapter of experiences in refugee jurisprudence. The
dismal picture of displacement and perilous life had an add-on element, and that was
of national recognition. There were several groups in India who had to cross the newly
declared international borders of India to resettle themselves in nascent nation and
459The
Worlds Stateless, Institute of Stateless and Inclusion (ISI), December 2014, Wolf Legal
Publishers, The Netherlands, p.8

460Id
at 8, 78
461Id
at 78
154
vice-versa. Pakistan was that nation which was emerged during his time. Though as
a nation it was never a host of colonisation but after its emergence the country got
entangled into varied range of issues which effected innumerable individuals and their
nationality came under stake. Till now there are several Hindu migrant families of that
time in Jammu and Kashmir who are inheriting the nationality jolt in their lives and
leading a life of de facto statelessness.462 There are other groups in India who have
been mapped by some of the organisations collaborating with UNHCR as stateless in
its de facto sense. Whether they are Tibetans who are under exile, residing in India
for generations and either unable or unwilling under certain circumstance to repatriate
to their homeland and leading a life of such nature or whether it is the lives of
thousands Chakma families who were forced to flee from Chittagong Hill Tract and
resettled in Indian territory which is presently Arunachal Pradesh.463 The latter group
has been resettled in India many years ago and many among them had taken birth in
India itself but had to face discrimination in various manners. Recently Supreme Court
via its decision has tried to regularise their lives and has left the rest on administrative
implementation so as to regularise Chakmas by providing them Indian citizenship and
rights attached to it. There are some other groups like; Rohingyas and Tamil Sri
Lankans are there which are in complex situation of refugee hood and are also facing
the issues that could be covered under statelessness. But one important aspect of
Indian statelessness which has traced out till now most of them are de facto situations.
De jure statelessness is yet to be found in an abundance in Indian Territory. One of
the biggest road blocker of finding out stateless situation in India is inability to map it.
As there is no such mechanism which has yet been devised that could trace this
phenomenon in its dejure sense, there is a big possibility that de jure stateless people
might have been neglected or are hidden in some way even some of them may be
unaware about their situations. Some efforts in todays time have been given impetus
for tracing statelessness in much vivid manner by UNHCR and another research group
(Mahanirban Calcutta Research Group) and efforts have been taken by Delhi National
Law University to highlight the flaws in Indian legislatures which deal with nationality
factors of Indians or individuals in India which can produce statelessness in India.
Conclusion
The bare reality is that human plight of statelessness has touched every corner of the
world including India, the only lacunae is that India is need of a much serious approach
towards this pressing issue and instead of considering statelessness as not a very
alarming phenomenon happening in its territory without proper survey should testify
the statement with a proper mapping data and acute statistics. It can be for certain
reason abstain itself from not being a signatory to any of the exclusive Conventions
dealing with statelessness but there are host of other such instruments to which India
has an obligation and above all has a moral obligation to take care if such cases of
disputed nationality is there or whether there is a risk hidden in the related legislature
which retain potential to produce stateless population. Hence it is shortly expected that
as UNHCR has doubted a considerable stateless population in Indian Territory, it has
462FyazWani,
Ctizens in India but Stateless in Kashmir, The Indian Express, November 2, 2014, at
Sunday Standard
463Tibets
Stateless Nationals II: Tibetan Refugee in India, Tibet Justice Centre, September 2011;
AnasuaBasu Roy Chaudhary, The Stateless Chakmas of Arunachal Pradesh, Refugee Watch Online,
February, 2011
155
become essentially important to gear up identifying and installing protective

mechanism in India to curb or tackle this human call.
156
SCHEDULED CASTES FINDING SOCIAL AND GENDER

DISPARITY
PRIYAM JAIN AND PRANJAL JAIN
NATIONAL LAW UNIVERSITY ODISHA, CUTTACK
Abstract:
Economic development with social equity is the major objective of planning process
and rural advancement in India. After Independence, undoubtedly, we have gained
astounding ground in the field of science and innovation. As the issue of improvement
of weaker sections particularly the Scheduled Castes, we have made significant
progress yet the alluring out-come is still far from the truth.
In India, the disparity between gender literacy is high and this is likewise valid within
castes. This paper is intended to examine education, health, government jobs, basic
amenities like housing, drinking water, electricity, etc., based on secondary data. The
prime objective of the study is to SC Women are institutional issues of SCs including
hour is to rebuild or update our institutional plans through a radical basic change with
emphasis on equality and equality of women as standard with men in all spheres of
social life. Findings show that in respect to men, women in these groups have
significantly more restricted access to both educational and employment. This
research likewise recommends that socioeconomic development serves to reduce the
disadvantage of scheduled group women with respect to men. The study likewise
highlights the areas of hardship which require urgent attention of the government and
policy maker towards the current circumstances. The implementation of different
formative plans swings to lead stability and bring the weaker section into main stream
of the society.
Key words: Education,
Unemployment, Women.
I.
Employment,India,
Poverty,
Scheduled
Caste,
INTRODUCTION
Marginality affects billions of people in the world, the lack of opportunities, lack of
control over themselves, and the disparity leads them to being into the Marginalized
Society. From the very start they are kept away from the local lives and which in turn
leads them further into isolation and depression. But to note that, within Marginalized
Society there is realization of womens equality and gender impact in the Indian
Society and Modernization can be one of the factor that creates gender inequality in
Scheduled Castes.
Over the past decades, the development in India has enhance position of women and
urban women, Now these women have greater opportunities of education and
employment but when we generalize it from the larger sections of women, the results
can be misleading and the bulk of women of Scheduled Castes still far away from the
157
opportunities.464 Indian Society is diversified society in terms of religion, caste, region

and language. The Caste went through many significant changes since India got
independence. Scheduled Castes are in the minority and contributes about 16.6% of
total population of India465 (Census 2011).This reflects the social and cultural trends
and creates the gender inequality in India. One key factor is implementation of policies
and laws to combat the discrimination, economic disadvantage and also violence
against women at higher level to lower level that governs the community in the society
and the household at large.
In Article 341 (1)466 of the Indian Constitution SCs have been specified and these
castes are considered as outcastes and categorized as untouchables. They are
socially deprived and discriminated by the upper castes. The castes will more
predominantly in the rural areas. The main purpose of including development clause
was to change the traditional structure of the society.
II.
METHODOLOGY
The present study is basically a doctrinal study; exploration attempted is descriptive in

nature with a scientific way to deal with the order. Both principle and auxiliary
information has been utilized and break down as a part of the all-encompassing way
for the plan of the proposal. Descriptive research incorporates overviews and actuality
discovering request of diverse mixtures. Also this paper uses secondary data such as
Articles, Journal Etc.
III.
OBJECTIVES
To Study Social and Gender Inequalities in Scheduled Castes.
To review basic amenities of Scheduled Castes.
To provides suggestion for developing and improving the condition of Scheduled
Castes.
IV.
DISCUSSION
There are important parameters where this paper will be focus on, to find out social
and gender inequalities in terms of Education, Health, Government Services, Drinking
Water and Sanitation and other basic amenities these are the parameters where from
the start Schedules Castes are deprived from their rights.
The Most important factor, to note that in India, women have shorter life span than
Men. Average for Men was 58 years and for Women was 52 years according to the
(CMIE 1982). This is because of relative discrimination against them.
Another factor is womens low status as compared to Mens in accordance with literacy
rate. Also, comparatively women labor work force was low it was 32% percent
according to the (Morgan 1984).467 Gender Inequality is still prevalent in the modern
464Dunn,
Dana. Gender Inequality in Education and Employment in the Scheduled Castes and Tribes
of India. Population Research and Policy Review 12.1 (1993): 5370.

465India.
Directorate of Census Operation. Census of India, 2011.
466JAIN,
M.P. INDIAN CONSTITUTIONAL LAW. 7th ed. LexisNexis, 2014 March. Article 341 (1).
467Dana,
supra Note at 464.
158
world, where people talk about the development but we have to still think about raising
the backward communities and their status in the present time, Question comes what
is Real Development?
Education
Article 46 of Indian Constitution468 focus on very basic tool for empowering the people
of SCs through education and economic rights: The state shall promote with special
care the education and economic interests of the weaker sections of the people, and
in particular to the Schedules Castes and Scheduled Tribes and shall protect them
from special injustice and all forms of social exploitation
It is true that India has developed large number of Education centers for learning and
state too had formulated number of schemes for the socio-economic development of
members of SCs by imparting focused schemes of education meant for uplifting these
neglected sections of the society but access to education for the most deprived
sections of the society and particularly to the members of schedules Cates was denied
particularly from the vast.469Look at table below showing literacy rate in SCs.
Table A: Shows literacy Rate of SCs.
SCHEDULED CASTES
YEAR
COMBINED (RURAL AND URBAN)

Female
Male
Total
1961
3.29
16.96
10.27
1971
6.44
22.36
14.67
1981
10.93
31.12
21.38
1991
23.76
49.91
37.41
2001
41.90
54.69
34.76
2011
56.50
75.20
66.10
%Increase 35%
38%
90%
in
2011
over 2001
Source: Census of India, Office of Registrar General, India.470
Table A: shows that the literacy rate of scheduled castes increased from 10.27% in
1961 to 66.10% in 2011showing increase of 55.83% in the last 50 years. (Census of
India 1961& 2011) In other words, around 34% of SC population is still deprived from
the basic and essential factors of human development. The female literacy rate was
23.76% in 1991 and 56.50% in 2011 it reveals 32.74% increase in the 20 years.
(Census 1991& 2011) It shows that around 43.50% of SC females are illiterate, which
need to be reduced urgently and bring them with general category. In India, female
illiteracy is higher than male illiteracy in general category and same illiteracy rate is in
the Scheduled Castes.
468JAIN,
M.P. INDIAN CONSTITUTIONAL LAW. 7th ed. LexisNexis, 2014 March. Article 46.
469Bandyopadhyay,
Madhumita, and RamyaSubrahmanian. Gender Equity in Education: A Review of
Trends and Factors. Brighton: CREATE, U of Sussex, 2008.

470India.
Directorate of Census Operation. Census of India, 2011.
159
Despite being increase in literacy rate, overall low average literacy levels in India,
especially in the Schedules Castes and female literacy remained low in both
categories of India.
HEALTH
Women of Scheduled Castes face three overlapping disadvantages: First, they face
being women in male oppressed society. Secondly, they suffer the disadvantage of
being Dalit as they face the opprobrium that higher caste Hindu society instinctively
heaps upon the lower castes. Thirdly, being Dalit and they spent more time being in
poverty.471
Women of Scheduled Castes from the past face lack of access in health services,
nationally about 40.5 of women are underweight and about 8% more for Dalit who are
unnourished. Dalit Women had relatively poor access to public health services as
compared to general women.472
The level of education plays an important role in receiving the services. After findings
it was interesting to note that even after formulating many programs and policies for
controlling social group it was found that compared to Hindus, the average rate of
death in India after controlling for group independent factors like income age, state of
residence, 7.1 years lower for Dalit. This shows, social group bias to health outcome
in India.473
Scheduled Castes Women basically were denied health services that higher caste
take it for granted. According to the National Sample Survey data, As compared to
15% higher caste Hindu
Women who didnt receive the prenatal care, and when it comes SCs Women the rate
was 26%. Same as 27% of Hindu women didnt receive post natal care, such care was
not received by 37% Dalit women474.
In year 2002, National Health Policy, indicates that the rate of Infant Mortality rate is
higher in case of SCs (66.4%) than the national mortality rate (57%).The total
percentage of women who use private and public health services for delivering their
babies is 38.8%. In case of SC nearly 77% women gave birth to their children at home
according to National Family Survey-III India, 2005-06.
Researcher found that SCs Women as compared to higher caste women were due to
adverse risk mortality inducing factor in case of age at death and treatment
inducing factor in case of prenatal treatment . Poor sanitation and water supply had
more impact on the women.
471Acharya,
Sanghmitra S. "Caste and Patterns of Discrimination in Rural Public Health Care Services."
(2010).
472Kumar,
Jitendra. "Blocked by Caste: Economic Discrimination in Modern India, Edited by
SukhdeoThorat and Katherine S. Newman." South Asian History and Culture 2.3 (2011): 431-33.
473Braun,
Joachim Von, Ruth Elaine Hill, and Rajul Pandya-Lorch. The Poorest and Hungry:
Assessments, Analyses, and Actions: An IFPRI 2020 Book. Washington, D.C.: International Food Policy
Research Institute, 2009.
474Wilkinson,
Richard G., and M. G. Marmot. The Solid Facts: Social Determinants of Health.
Copenhagen: Centre for Urban Health, World Health Organization, 2003.
160
Researcher found that SCs Women life expectancy is lower as a result of higher
exposure to mortality inducing factor, it was found that 5.48 years gap between the
higher caste and Dalit women.
GOVERNMENT SERVICES
Reservation to Scheduled Castes made available for their promotion and it was
challenged many times and in IndraSawhney v. Union of India and Others475 it was
held that promotion for SC is unconstitutional and it will allowed only in special case
for 5years. The 77th amendment was made before the expiry of 5 years which the
enable the government to continue reservation of SCs and STs in promotion and also
new clause was added in Article 16 i.e. (4A) was added in Indian
Constitution476:Nothing in this article shall prevent the State from making any
provision for reservation in matters of promotion to any class or classes of posts
in the services under the State in favor of the Scheduled Castes and Scheduled
Tribes which, in the opinion of the State, are not adequately represented in the
services under the State.
After in M.Nagaraj v UOI &Ors.477 Supreme Court ruled that 77th and 85th
amendments are valid and state after following certain condition can make special
provisions for reservations of SCs and STs.
The reservation policies of Government created discrimination but positive
discrimination is always welcomed, giving reservation alone in education will be
meaningless if not provided reservation in jobs. But many reports and studies suggest
that their representation in government jobs is negligible. Though representation is low
but it have contributed to socio-economic development to some extent.
Researcher found that, there was significant disparity just after independence and it
has improved but still there was disparity in CLASS D post in 2001. Before, moving
on to significant disparity in Jobs.
Let us look into TABLE B:
Reservation Status of Scheduled Castes in Central Government
Recruitment
YEAR
CLASS A
CLASS B
CLASS C
CLASS D
1953
00.35
1.29
04.52
20.52
1965
01.64
02.82
08.88
17.73
1970
02.36
03.84
09.27
18.09
1975
03.43
04.98
10.27
18.64
1979
04.83
08.07
11.54
19.16
1992
09.70
11.60
15.80
20.70
1995
10.13
13.13
15.46
20.46
CLASS A is very important post as it involves the decision making process, CLASS
B Posts are also equally important, whereas CLASS C and CLASS D Posts are
lower posts, it included peons and sweepers. Over the year CLASS A post have
475IndraSawhney
476JAIN,
v. Union of India and Others. AIR 477. SC. 1993.
M.P. INDIAN CONSTITUTIONAL LAW. 7th ed. LexisNexis, 2014 March. Article 16 (4A).
477M.Nagaraj
v UOI &Ors. 61. SC. 2002.W.P. (CIVIL).
161
been increased steadily it was 0.35% in 1953 and it has reached 10.13% in 1995.
When it comes to prescribed quota for SCs is 15% still remains a backlog of 4.84% in
total. At National Level it can include 100 posts. It means that SCs are kept away
from the CLASS A posts. In CLASS B there is backlog of about 1.87% of total. In
both CLASS A and CLASS B there is significant backlog. When it comes to CLASS
C andCLASS D, there are not so important because here less number of upper caste
people apply for the post of Sweeper or Peonsand hence reservation status in these
post is more than requirement.478It can be infer that there is again caste system is
percolated in government services and government is adopting Zero Recruitment
Policy in which SCs can lose job and it is severe injustice to them.
Let us look into Year 1991 2001 data collected form DOP&T, Govt. of India in
TABLE C:
SC representations in Central Government Services in 1991 and 2001
YEAR
CLASS A
CLASS B
CLASS C
CLASS D
1971
2.58
4.06
9.59
18.37
1991
9.09
11.82
15.65
21.24
2001
11.42
12.82
16.25
17.89
Researcher found after concluding from the TABLE C that there is an improvement in
representation of SCs in all categories exceptD where there is gap of 4% between
prescribed quotas of 15.5%. And 11.42 filled in CLASS A and there is a gap of 2.68%
in CLASS B. Again, there is less significance of CLASS C and CLASS D because
upper caste doesnt opt for it.479At last, there is urgent need to fill up these gaps by
necessary policies from the government.
HOUSING
Housing is one of the basic needs after food and clothing which a human being
requires in order to secure his survival. Also, it is not only meant for survival, but also
it is very important for acquiring dignity in ones society and bringing a profound social
change in his status. It also has an effect on a persons health. There are two very
important housing schemes launched which are The Indira AwaasYojana and The
ValmikiAmbedkarAwaasYojana.
Indira AwaasYojana is a public housing scheme for the families which are houseless
and poor and also for those who are living in kacha houses with a component for
providing house sites to poor. It is a scheme specially designed for the Below Poverty
Line (BPL), to build their house or get house site with financial and technical
assistance from the government. The main purpose is to provide financial assistance
to the weakest sections of the society to upgrade their personal living. As per the
budget 2011, 100 billion funds have been allocated for construction of houses for BPL
families. Eligible families will get 1.2 lakh rupees for construction of their house in rural
478Karade,
Jagan. Development of Scheduled Castes and Scheduled Tribes in India. Newcastle, UK:
Cambridge Scholars Pub., 2008.

479Singh,
Darshan. "Development of Scheduled Castes in India a Review." Journal of Rural
Development 28.4 (2009).
162
areas. Since 1985, only 25.2 million houses have been constructed by this very
scheme.480
Valmiki Ambedkar Awaas Yojana is a scheme which facilitates the construction and
up gradation of the dwelling units for the slum and also to provide good health
environment through community toilets. Since the year 2001-02, a subsidy of
Rs.622.53 Crore has been released for the construction of 282831 dwelling units and
35363 toilet seats. As per the 2001 census481, the annual requirement for houses is
about 30 lakh, but about 15 lakh constructions are taking place per annum. Also 10
lakh shelter less are added every year. Thus the revised requirement is 40 lakh
houses, and only 15 lakh houses are constructed leaving a gap of 25 lakh houses.
DRINKING WATER AND SANITATION
Drinking water and sanitation are very important factors to lead a safe and healthy life.
It is the responsibility of the state government to provide people with drinking water
supply and sanitation facilities. The state government plans, designs and execute
these schemes with their funds. As per the census 2001, 81.1 percent SC and 61.7
percent ST have improves drinking water facility. About 27 percent SC and 15.2
percent ST have drinking water facility within their premises. The table below shows
the Percentage distribution of households by location of drinking water source. It can
be clearly seen that there is a considerable amount of gap between the Scheduled
castes and other castes regarding the drinking water source. Also, 39 percent of
general household have access to drinking water within their premises against only 27
percent of Scheduled castes/Scheduled tribes have drinking water facility within their
premises.482
Sanitation is also a centerpiece of public health. An improved sanitation facility
contributes hugely to human health and safety. In access to toilet also, there is a huge
gap between general category households and Scheduled Tribes. Only 23.7 percent
Scheduled castes have access to toilets, whereas 42.3 percent of general category
have access to toilets.
Table D: Percentage distribution of households by location of drinking water
source
TOTAL PERCENT OF HOUSEHOLD
HAVING
DRINKING
WATER
SOURCE
BY
LOCATION
TOTAL
PERCENT
OF
SC
HOUSEHOLDS
HAVING
DRINKING WATER SOURCE BY
LOCATION
Rural/Urban Within
Near
Away
Premises Premises
Within
Premises
Near
Premises
Away
Total
27.0
53.5
19.5
480
39.0
44.3
16.7
Gulati, Ashok, and ShashankaBhide. What Do the Reformers Have for Agriculture? Economic and
Political Weekly 30.18/19 (1995): 10891093.

481
India. Directorate of Census Operation. Census of India, 2002.
482Darshan.
Supra Note at 17.
163
Rural
28.7
51.8
19.5
20.9
58.2
20.9
Urban
65.4
25.2
9.4
48.5
36.8
14.7
ELECTRICITY
Access to electricity is also a basic requirement for every household in a todays world.
As far as the Scheduled Castes are concerned, they are getting deprived of access to
electricity as compared to the general household. From the year 1991 to 2001, many
improvements have been done regarding access to electricity, but still both the
Scheduled Castes and Scheduled tribes are deprived in comparison to general caste
household. It is very pitiful that in the era of science and technology, more that 21
percent SC and 47.8 ST villages have zero percent access to electricity facility. The
table below shows the Percentage of households having access to electricity.
Table E: Percentage of households having access to electricity
CENSUS
YEAR
TOTAL
GENERAL
CASTE
SCHEDULED
CASTE
SCHEDULED
TRIBE
1991
2001
42.40
55.80
48.10
61.40
28.10
44.30
22.80
36.50
V.
CONCLUSION
Every person of the country have right to get literate and also have right to contribute
to the country. There should be active role of Government to ensure that everyone is
literate irrespective of race, caste and religion. After interpreting from the constitution
we realized socially, economically backward castes need to push in order to compete
with other population and hence separate provisions has been created by
incorporating fundamental rights in the constitution. Education, Health Services,
Employment, Housing are the essential factors of development. The present state of
SCs shows there wide gap between literacy rates of SCs to that General Castes.
Infant mortality, pre-natal and post-natal mortality are higher in SCs. Nearly 77% of
women give birth at home due to poverty. The representation in Government Services
is less than 15.5%. It also unfortunate to see that still 21% of SCs villages dont have
electricity. The SCs people dont have permanent house to live. Moreover, one third
of SCs are living below poverty line. It also unfortunate to see that 21% of SCs villages
dont have access to electricity. When it comes to drinking water only 27% have within
their premises and 20% have outside their premises. The factors mentioned above
should be paid attention to fulfill the basic needs of people. The government and policy
makers should be in action to bring them into the main stream of the society.
164
VI.
SUGGESTIONS
Education play an important role in development of Human. For the development

of Scheduled Castes there is need to start new elementary schools, new programs
should be started like SarvaShikshaAbhiyan for better education. Scholarships
should be provided. Financial assistance should be provided for their development.
Kasturba Gandhi Balika Schools should be started for girls.
Government should reformulate their employment strategies and also create new
employment opportunities in non farming and household industry sectors. There
is need to impart new skills for their trades.
The health and family welfare programs should be impart in the society where there
is need urgent need of health facilities .There is greater need of awareness among
SCs regarding pre-natal and post natal care where NGOs can play decisive role.
Housing is basic need of all Human beings and current government policies and
programs are good but it need to more adequate and realistic. Corporate Sectors
can also play more important in providing basic amenities.
We need to aware themselves that opportunities are provided to them and they
need to grasp these opportunities. They should know the importance of safedrinking water and sanitation. The local government and NGOs should bring
awareness and create mass campaign. There is also need to reformulate policies
those who need badly. The program should be created i.e., recruitment drive to fill
up backlog of SCs vacancies should be initiated by the government to provide
adequate representation.
VII.
REFERENCES
BOOKS
1. Bandyopadhyay, Madhumita, and RamyaSubrahmanian. Gender Equity in
Education: A Review of Trends and Factors. Brighton: CREATE, U of Sussex,
2008.
2. Braun, Joachim Von, Ruth Elaine Hill, and Rajul Pandya-Lorch. The Poorest and
Hungry: Assessments, Analyses, and Actions: An IFPRI 2020 Book. Washington,
D.C.: International Food Policy Research Institute, 2009.
3. JAIN, M.P. INDIAN CONSTITUTIONAL LAW. 7th ed. LexisNexis, 2014 March.
4. Karade, Jagan. Development of Scheduled Castes and Scheduled Tribes in India.
Newcastle, UK: Cambridge Scholars Pub., 2008
5. Wilkinson, Richard G., and M. G. Marmot. The Solid Facts: Social Determinants of
Health. Copenhagen: Centre for Urban Health, World Health Organization, 2003.
JOURNALS /ARTICLES
1. Acharya, Sanghmitra S. "Caste and Patterns of Discrimination in Rural Public
Health Care Services." (2010)
2. DESAI, SONALDE, and VEENA KULKARNI. Changing Educational Inequalities
in India in the Context of Affirmative Action. Demography 45.2 (2008): 245270.
3. Dunn, Dana. Gender Inequality in Education and Employment in the Scheduled
Castes and Tribes of India. Population Research and Policy Review 12.1 (1993):
5370
165
4. Kumar, Jitendra. "Blocked by Caste: Economic Discrimination in Modern India,

Edited by SukhdeoThorat and Katherine S. Newman." South Asian History and
Culture 2.3 (2011): 431-33
5. Singh, Darshan. "Development of Scheduled Castes in India a Review." Journal
of Rural Development 28.4 (2009)
CASE LAWS
1. M.Nagaraj v UOI &Ors. 61. SC. 2002.W.P. (CIVIL).
2. IndraSawhney v. Union of India and Others. AIR 477. SC. 1993.
166
DOCTRINE OF PLEASURE AND PROTECTION TO CIVIL SERVANTS

IN INDIA: A CRITICAL ANALYSIS
MR. AMIT DHALL, ASSISTANT PROFESSOR (LAW)
AMITY LAW SCHOOL, NOIDA
MR. RAJNISH JINDAL, ASSISTANT PROFESSOR (LAW & MANAGEMENT)
AMITY LAW SCHOOL, NOIDA
ABSTRACT
The Common law doctrine of pleasure in Article 310 as enshrined in

Article 310 of Indian Constitution specifies that all members of the
Defence Services or the Civil Services of the Union or of All-India
Services hold office during the pleasure of the President. Likewise,
members of the State Services hold office during the pleasure of the
Governor. The doctrine of pleasure as originally envisaged in England
was a prerogative power which was unfettered. It meant that the holder
of an office under pleasure could be removed at any time, without notice,
without assigning cause, and without there being a need for any cause.
But where rule of law prevails, there is nothing like unfettered discretion
or unaccountable action. However, this rule of English law has not been
fully adopted in Indian Constitution as the doctrine of pleasure is invoked
by the Government in the public interest, is not absolute and unrestricted
and cannot be at the authority's sweet will, whim and fancy. This paper
endeavors to analyze the various aspects of the doctrine in light of
constitutional provisions and judicial judgements to find out relative
importance of this doctrine in India and measures to strengthen the
same.
KEY WORDS: (Civil Servants, Doctrine of Pleasure, Article 310, Article 311)
INTRODUCTION
The concept of the 'Doctrine of Pleasure', which can be traced to the Latin maxim
duranto bene placito which means during good pleasure or during the pleasure of
the appointer, is peculiar to civil servants and considered to be a special prerogative
of the British Crown. The doctrine is a common law rule which has its origin in England.
The doctrine has been aptly described in Halbury's Laws of England483:
Except where it is expressly provided by statute all public officials and

servants of the Crown hold their appointment at the pleasure of the Crown,
483
Halsbury's Laws of England, 3rd Ed, Butterworths and Co., London, 1960, p. 340.
167
and in general, are subject to dismissal at any time without cause assigned,
nor will an action for wrongful dismissal be entertained ever though a
special contract be proved.
In England, a servant of the Crown holds public office during the pleasure of the
Crown. The tenure of office of a civil servant can be terminated at any time without
assigning any reason. The civil servant is liable to be dismissed without notice and
they cannot claim damages for wrongful dismissal or immature termination of service.
The Crown is not liable under any special contract between it and a civil servant,
because the Crown could not fetter its future executive action by entering into a
contract in matters concerning the welfare of the country.
DOCTRINE OF PLEASURE IN INDIA

The Government of India Act, 1919 was the first enactment to apply the doctrine of
pleasure in India, through Section 96B thereof. Its application was subject to rules,
and the courts while examining challenges to penalties under that Act applied the
extant rules to determine whether these were rightly imposed. In other words, when
this doctrine was first applied in India, it was deemed sufficient to provide protection
against any unjust exercise of pleasure. With the provisions of Judicial review now
available in our Constitution, the protection available to Government employees is
indeed formidable even outside Article 311. This is borne out by the fact that ample
relief is available to employees invoking judicial intervention in cases involving
compulsory retirements even though Article 311 does not extend to such cases.
3.10.19 When Sardar Patel argued for protection of civil servants, the intention was
clearly to embolden senior civil servants to render impartial and frank advice to the
political executive without fear of retribution. But the compulsions of equal treatment
of all public servants and judicial pronouncements have made such a protection
applicable to employees of PSUs, para-statal organizations and even body corporates
like cooperatives and this has created a climate of excessive security without fear of
penalty for incompetence or wrongdoing. The challenge before the nation now is to
confront this exaggerated notion of lifetime security irrespective of performance and
to create a climate conducive to effective delivery of services and accountability with
reasonable security of tenure.
Civil servants in India enjoy unique protection in terms of specific provisions in Part
XIV of the Constitution, which authorize the regulation of their conditions of service.
Article 309 stipulates that subject to the provisions of the Constitution, acts of
appropriate legislature may regulate the recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the
Union or of a State. Under Article 310, persons serving the Union or a State hold office
during the pleasure of the President or the Governor of the State as the case may be.
The exercise of this pleasure is, however, circumscribed by the provisions of Article
311. Under the Indian Constitution the Doctrine of Pleasure is also based on the same
public policy considerations as it existed under the common law in England. Even
though doctrine of pleasure is accepted in India, it has not been completely accepted
in India. This Doctrine of Pleasure is enshrined in Article 310(1) of Indian Constitution.
It reads as follows:
168
Tenure of office of persons serving the Union or a State484:

(1) Except as expressly provided by this Constitution, every person who is a member
of a defence service or of a civil service of the Union or of an all India service or holds
any post connected with defence or any civil post under the Union, holds office during
the pleasure of the President, and every person who is a member of a civil service of
a State or holds any civil post under a State holds office during the pleasure of the
Governor of the State.
In India the doctrine has general application which operates except as expressly
provided by the Constitution. Thus, a civil servant would be excluded from the
operation of this doctrine when there is a specific provision in the Constitution giving
to servant tenure different from that provided in Article 310.The Doctrine is subject to
constitutional limitations.
Under Indian Constitution the following are expressly excluded from the rule of
Pleasure:
1. Supreme Court Judges (Article 124)
2. Auditor General (Article 148)
3. High Court Judges (Article 217, 218)
4. A member of Public Service Commission (Article 317)
5. The Chief Election Commissioner.
The doctrine of pleasure has not been completely accepted in India. It is subject to the
provisions of Article 311 which provides for procedural safeguards for civil servants.
Article 311 of the Constitution of India states that:
Dismissal, removal or reduction in rank of persons employed in civil capacities under
the Union or a State:
(1) No person who is a member of a civil service of the Union or an all-India service or
a civil service of a State or holds a civil post under the Union or a State shall be
dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank
except after an inquiry in which he has been informed of the charges against him and
given a reasonable opportunity of being heard in respect of those charges: Provided
that where, it is proposed after such inquiry, to impose upon him any such penalty,
such penalty may be imposed on the basis of the evidence adduced during such
inquiry and it shall not be necessary to give such person any opportunity of making
representation on the penalty proposed: Provided further that this clause shall not
apply
a) where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his conviction on a criminal charge; or
b) where the authority empowered to dismiss or remove a person or to reduce him
in rank is satisfied that for some reason, to be recorded by that authority in
writing, it is not reasonably practicable to hold such inquiry; or
484
Art. 310, Constitution of India
169
c) where the President or the Governor, as the case may be, is satisfied that in
the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is
reasonably practicable to hold such inquiry as is referred to in clause (2), the decision
thereon of the authority empowered to dismiss or remove such person or to reduce
him in rank shall be final."485
The procedure laid down in Article 311, subject to the provisos, or exceptions, therein,
is intended to, first, assure a measure of security of tenure to government servants,
who are covered by the Article and, second, provide certain safeguards against
arbitrary dismissal or removal of a government servant or reduction to a lower rank.
These provisions are enforceable in a court of law and where there is an infringement
of Article 311 orders passed by the disciplinary authority are ab-initio void. The
provisions of Articles 310 and 311, apply to all government servants.
RESTRICTIONS ON THE DOCTRINE OF PLEASURE
Under Indian Constitution several restrictions have been placed on Doctrine of
Pleasure. They are as follows:
(i)
The service contract entered between the civil servant and government may
be enforced.
(ii)
The fundamental rights guaranteed under the constitution are restrictions
on the pleasure doctrine and therefore this doctrine cannot be resorted too
freely and unfairly, Articles 14, 15 and 16 of the Constitution imposed
limitations on free exercise of Pleasure Doctrine. Article 14 embodies the
principle of reasonableness the principle of reasonableness is anti-thesis of
arbitrariness. In this way, Article 14 prohibits arbitrary exercise of power
under pleasure doctrine. In addition to article 14 of the constitution Article
15 also restricts arbitrary exercise of power in matters of services. Article 15
prohibits termination of service on grounds of religion, race, caste, sex or
place of birth or any of them. Another limitation is under Article 16(1) which
obligates equal treatment and bars arbitrary discrimination.
(iii)
Further the doctrine of pleasure is subject to many more limitations and a
number of posts have been kept outside the scope of pleasure doctrine.
Under the constitution the tenure of the Judges of the High Courts and
Supreme court, of the comptroller and Auditor-General of India, of the Chief
Election Commissioner and the Chairman and Members of Public service
commission is not at the pleasure of the Government.486
Article 310 of the Constitution provides the general principle relating to civil services,
that government servants hold office during the pleasure of the government. However,
certain restrictions on the privilege of dismissal at the pleasure have been laid down
under Article 311.
CONSTITUTIONAL SAFEGUARDS
Article 311 of the Indian Constitution provides for two constitutional safeguards. They
are as follows:
No removal by subordinate authority: Clause (1) of Article 311 addresses itself to
the authority that can impose any of the punishments of dismissal or removal and
485
486
Art. 311, Constitution of India

Dr. J. J. R. Upadhyaya, Administrative Law, (Central Law Agency Publications, 8th ed., 2012)
170
provides that, no order of dismissal or removal can be made by an authority

subordinate to the appointing authority. But if the removing authority is of the same or
co-ordinate rank or grade as the appointing authority then, dismissal or removal by
such authority is valid.487
Reasonable opportunity to defend: Clause (2) of Article 311 provides the essential
procedural requirements must be fulfilled before dismissing, removing or reducing in
rank.
Article 311(2) mandates the compliance of the Principles of Natural Justice. A civil
servant cannot be punished without:
(a) holding an enquiry;
(b) informing the civil servant about the charges against him;
(c) giving him a reasonable opportunity of being heard in respect of those
charges.
The civil servant must be informed of the charges against him; and
the civil servant against whom an accusation of misconduct is made must be Formally
informed i.e. to say those acts or omissions of the public servant which are termed as
Misconduct under the Service Rules usually referred to as Conduct rules. But, acts or
conduct not covered by such may still amount to misconduct. It is fundamental and
essence of the concepts of fair play and justice that a person should know why he is
being charged.488 He must be afforded a reasonable opportunity of being heard in
respect of those charges.
EXCEPTIONS TO THE SAFEGUARDS
Article 311 (2) of Constitution of India provides for cases in which the procedure
envisaged in the substantive part of the clause need not be followed489. These are as
follows:
a) Conviction on Criminal Charge: Under Art. 311(2)(a), the disciplinary
authority is to regard the conviction of the concerned civil servant as sufficient
proof of misconduct on his part. The authority is to decide whether conviction
487
Mahesh v. Uttar Pradesh AIR 1955 SC 70

Surath Chandra Chakraborty v. State of West Bengal (1970) 3 SCC 548
489 Article 311(2) of Indian Constitution provides
488
No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry
in which he has been informed of the charges against him and given a reasonable opportunity of being
heard in respect of those charges Provided that where it is proposed after such inquiry, to impose upon
him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such
inquiry and it shall not be necessary to give such person any opportunity of making representation on
the penalty proposed: Provided further that this clause shall not apply;
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led
to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank ins satisfied
that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold
such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the
security of the State, it is not expedient to hold such inquiry
171
demands the imposition of any penalty and, if so, what penalty. For this
purpose, the authority has to take into consideration the judgment of the
criminal court, the entire conduct of the civil servant, the gravity of the offence,
the impact of the offence on the administration, whether the offence was of a
technical or trivial nature, and extenuating circumstances if any. The
Disciplinary authority has to do ex-parte and without giving a hearing to the
concerned civil servant.
b) Impracticability: Clause (b) of the proviso provides that where the appropriate
disciplinary authority is satisfied, for reasons to be recorded by that authority in
writing that it does not consider it reasonably practicable to give to the person
an opportunity of showing cause, no such opportunity need be given. The
satisfaction under this clause has to be of the disciplinary authority who has the
power to dismiss, remove or reduce the Government servant in rank. As a
check against an arbitrary use of this exception, it has been provided that the
reasons for which the competent authority decides to do away with the
prescribed procedures must be recorded in writing setting out why it would not
be practicable to give the accused an opportunity. The use of this exception
could be made in case, where, for example a person concerned has absconded
or where, for other reasons, it is impracticable to communicate with him.
c) Security Reasons: The President or the Governor as the case may be must
be satisfied with respect to the expediency or inexpediency of holding an inquiry
in the interest of the security of the State. Security of State is of paramount
importance and all other interests are subordinate to it, it may comprise a
situation of disobedience and insubordination on the part of members of the
police force. In Tulsi Ram Patel case490, the Supreme Court has clarified that
the question is not whether the security of the State has been affected or not,
for the expression cl. (c) is in the interest of the security of State. The Court
further observed What is required under cl.(c) is not the satisfaction of the
President or the Governor, that interest of the security of the State is or will be
affected but his satisfaction in the interest of security of State, it is not expedient
to hold an inquiry as contemplated by Article 311(2).
JUDICIAL PERSPECTIVE ON DOCTRINE OF PLEASURE IN INDIA
The rule emanating from the doctrine of pleasure is that no servant of the Crown can
maintain an action against the Crown for any arrears of salary. The theory underlying
this rule is that the civil servant has only claim on the bounty of the Crown and has no
claim for a contractual debt. However, this rule of English law has not been fully
adopted in Indian Constitution. A civil servant in India could always sue the Crown for
arrears of salary491. The rule is qualified by the words except or expressly provided
by the Constitution492.
However, the Supreme Court of India in State of Bihar v. Abdul Majid493 refused to
follow this rule of the Doctrine of pleasure. In this case sub-inspector of police earlier
490
491
492
493
AIR 1985 SC 1416

State of Bihar v. Abdul Majid, AIR 1954 SC 245
Opening words of Article 310
AIR 1954 SC 245
172
dismissed from service on the ground of cowardice, was later reinstated in service.
But the government contested his claim for arrears of salary for the period of his
dismissal. The Apex Court upheld his claim arrears of salary on the ground of contract
or quantum meruit i.e. for the value of the service rendered. Similarly, in another case
the Supreme Court observed that when dismissal of a civil servant was found to be
unlawful, he was entitled to get his salary from the date of dismissal to the date when
his dismissal was declared unlawful.494
Further in State of Maharashtra v. Joshi495, a claim of arrears of salary was held to be
based on contract. The power of conferred by the doctrine on the President and the
Governor is subject to checks and balances by the judiciary to prevent its arbitrary
exercise. The Supreme Court in Jaswant Singh v. State of Punjab496 held that in
spite of finality of Article 311(3) the finality can certainly be tested in the court of law
and interfered with if the action is found to be arbitrary or malafide or motivated by
extraneous considerations or merely a ruse to dispense with the inquiry.
In Union of India v. Balbir Singh497, the Supreme Court held that the Court can
examine the circumstances on which the satisfaction of the president or Governor. If
the Court finds that the circumstances have no bearing whatsoever on the security of
State, the Court can hold that satisfaction of the president or the Governor which is
required for passing such an order has been vitiated by wholly extraneous or irrelevant
considerations.
In Smt. Rajinder Kaur v State of Punjab and Another case498, where a temporary
constable was discharged from service, it was held that the order of discharge, though
couched in innocuous terms and stated to be made in accordance with (the rules) was
really a camouflage for an order of dismissal from service on the ground of misconduct
as found on an enquiry into the allegations behind her back. It was penal in nature as
it cast a stigma on the service career of the appellant. The order was made without
serving the appellant any charge sheet, without asking for any explanation from her,
without giving any opportunity to show cause against the purported order of dismissal
from service and without giving any opportunity to cross-examine the witnesses. It,
therefore, contravenes Article 311(2) of the Constitution and is liable to be quashed
and set aside.
ARC RECOMMENDATIONS
In its Fourth Report, on Ethics in Governance499, the Second Administrative Reforms
Commission had dealt with the issue of whether the protection to civil servants
enshrined in Article 311 of the Constitution should be retained or not. The Commission
has given deep consideration to the case for and against Article 311 remaining in the
Constitution of India. The Commission believes that the rights of a civil servant under
the Constitution should be subordinate to the overall requirement of public interest and
the contractual right of the State. It cannot be an argument that a corrupt civil servants
494
Om Prakash v. State of Uttar Pradesh AIR 1955 SC 600

AIR 1969 SC 1302
496 AIR 1991 SC 385
497 AIR 1998 SC 2043
498 AIR 1986 SC 1790
499 Ethics in Governance, Fourth Report, Second Administrative Reforms Commission, Govt. of
India, January 2007.
495
173
rights are more important than the need to ensure an honest, efficient and corruption
free administration. Ultimately, the public servant, an agent of the State, cannot be
superior to the State and it is his fundamental duty to serve the State with integrity,
devotion, honesty, impartiality, objectivity, transparency and accountability. It is true
that the government as an employer is expected to act in a fair manner and it has to
be a model employer worthy of emulation by others. It has also to be ensured that
honest and efficient public servants are not subjected to the whims and fancies of their
superiors. No government can be expected to dispense with the services of a
government servant in an arbitrary manner or without a proper enquiry. Such arbitrary
removal is not possible even in the private sector. Strictly, there should be no need for
retaining Article 310, and legal safeguards may be provided through legislation under
Article 309. Articles 309, 310 and 311 form a continuum. If the whole gamut of
conditions of service is codified as required by the substantive part of Article 309,
this can include matters such as disciplinary proceedings and imposition of penalties.
Moreover, as noted above, with rule of law accepted as an integral part of the basic
structure of the constitution, reasonable protection now attributed to Article 311 will
continue to be available to satisfy the requirements of rule of law.
Taking into account these considerations and a fairly common perception that explicit
articulation of protection in the Constitution itself gives an impression of inordinate
protection, the Commission is of the view that on balance Article 311 need not
continue to be a part of the Constitution. Instead appropriate and comprehensive
legislation under Article 309 could be framed to cover all aspects of recruitment and
service, even with regard to dismissal, removal or reduction in rank. Appropriate
legislation by the respective legislatures may also be ensured through a revised
Constitutional provision. Accordingly, the commission recommended that Article 311
of the Constitution should be repealed and simultaneously, Article 310 of the
Constitution should also be repealed.
CONCLUSION
The framers of our Constitution introduced the doctrine of pleasure to grant immunity
to civil officials from summary and arbitrary dismissal from services by the government.
Also, the judiciary with its limited power of judicial review and departmental appeal has
ensured that the power to dismiss has not been misused by the authority.
The Article 311 requires some amendments in order to facilitate summary removal
from service of a corrupt officer; to inspire confidence in the minds of the common
people that corrupt practice by members of the civil service / persons holding civil
posts will not be tolerated; to ensure justice to the official so removed in a postdecisional hearing etc. It has become necessary to revisit the issue of constitutional
safeguards under Article 311 to ensure that the honest and efficient officials are given
the requisite protection but the dishonest are not allowed to prosper in office. A
comprehensive examination of the entire corpus of jurisprudence has to be undertaken
to rationalize and simplify the procedure of administrative and legal action and to bring
the theory and practice of security and tenure in line with the present requirement.
174
NATURAL JUSTICE AND ADMINISTRATIVE LAW

RATNESH DWIVEDI
SIDDHARTHA LAW COLLEGE, DEHRADUN
The principal of natural justice are easy to proclaim but their precise extent far less to
define
-Evershed M R
INTRODUCTION
In India there is no statute laying down the minimum procedure which administrative
agencies must follow while exercising decision-making powers. This minimum fair
procedure refers to the principles of natural justice500.
The Principles of natural justice is the strength and power of law and justice. While
searching for justice the principles of natural justice have been utilized since the dawn
of civilization. Initially natural justice was conceived as parallel to the universal natural
law. Judges have used natural justice as to imply the existence of moral principles of
self evident and indisputable reality.
Natural justice is a concept of common law and signifies higher procedural
principles established by the courts, which every judicial, quasi-judicial and
administrative agency must follow while taking any decision unfavorably affecting the
rights of an individual.
Natural Justice used in this way is another name for natural law although devoid of at
least some of the theological and philosophical overtones and implications of that
concept501.
In a welfare state like India, the role and jurisdiction of administrative agencies is
increasing at a rapid pace. The concept of Rule of Law would lose its validity if the
instrumentalities of the State are not charged with the duty of discharging these
functions in a fair and just manner.
In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the
Constitution. With the introduction of concept of substantive and procedural due
process in Article 21, all that fairness which is included in the principles of natural
justice can be read into Art. 21.
CONCEPT FORMULATIONS
500
501
Natural Justice is rooted in the natural sense of what is right and wrong. It
mandates the Adjudicator or the administrator, as the case may be, to observe
procedural fairness and propriety in holding/conducting trail, inquiry or
investigation or other types of proceedings or process
CA Ashish Makhija, FCA, AICWA, LLB Principles of natural justice (2014), pg. 1-13
Lord Esher M.Rs definition of natural justice as, the natural sense of what right and wrong.501
175
The object of Natural Justice is to secure Justice by ensuring procedural

fairness. To put it negatively, it is to prevent miscarriage of Justice.502
Administrative law is that body of law which applies for hearings before quasijudicial or quasi-judicial organizations or administrative tribunals and which
supplement the rules of natural justice with their own detailed rules of
procedure. It is synonymous with natural justice.
As a body of law, administrative law deals with the decision-making of
administrative units of government (e.g., tribunals, boards or commissions) that
are part of a national regulatory scheme in such areas as police law,
international trade, manufacturing, the environment, taxation, broadcasting,
immigration and transport.
ORIGIN OF THE PRINCIPLES OF NATURAL JUSTICE

It is said that principles of natural justice is of very ancient origin and was known to
Greek and Romans. The Principles were accepted as early as in the days of Adam
and of Kautilyas Arthashastra. According to the Bible, when Adam & Eve ate the fruit
of knowledge, which was forbidden by God, the latter did not pass sentence on Adam
before he was called upon to defend himself. Something was repeated in case of Eve.
Later on, the principle of natural justice was adopted by English Jurist to be so
fundamental as to over-ride all laws. The principles of natural justice were associated
with a few accepted rules which have been built up and pronounced over a long
period of time. The word Natural Justice manifests justice according to ones own
conscience. It is derived from the Roman Concept jus - Naturale and Lexnaturale
which meant principle of natural law, natural justice, eternal law, natural equity or good
conscience.
PRINCIPLES OF NATURAL JUSTICE

Nothing is to be done which creates even a suspicion that there has been an
improper interference with the course of justice
-Lord Hewart C.J.
I.
RULE AGAINST BIAS (NEMO JUDEX CAUSA SUA)
Doctrine of Bias
One of the essential elements of judicial process is that administrative authority acting
in a quasi- judicial manner should be impartial, fair and free from bias. Rules of judicial
conduct, since early times, have lays down that the deciding Officer should be free
from any prejudices. Where a person, who discharges a quasi-judicial function, has,
by his conduct, shown that he is interested, or appears to be interested, that will
disentitle him from acting in that capacity.
In this connection the Supreme Court pointed out that one of the fundamental
principles of natural justice is that in case of quasi-judicial proceedings, the authority,
502
Dr. Sunita Zalpuri, Associate professor in J & K, Training package on administrative law, module I
pg. 68 (2010)
176
empowered to decide the dispute between opposing parties must be one without bias,
by which is meant an operative prejudice, whether conscious or unconscious towards
one side or the other in the dispute503.
Bias means an operative prejudice, whether conscious or unconscious in relation to
a party or issue. The rule against bias flows from following two principles:a) No one should be a judge in his own cause
b) Justice should not only be done but manifestly and undoubtedly be seen to be done.
Thus a judge should not only be impartial but should be in a position to apply his mind
objectively to the dispute before him504.
The rule against bias thus has two main aspects:1. The administrator exercising adjudicatory powers must not have any personal or
proprietary interest in the outcome of the proceedings.
2. There must be real likelihood of bias. Real likelihood of bias is a subjective term,
which means either actual bias or a reasonable suspicion of bias. It is difficult to
prove the state of mind of a person. Therefore, what the courts see is whether there
is reasonable ground for believing that the deciding factor was likely to have been
biased.
Bias can take many forms: BIAS
Personal Bias
notion bias
Subject-matter bias
Pecuniary Bias
Pre-conceived
Departmental bias
Thus bias is usually of three types:

(1) Pecuniary bias;
(2) Personal bias; and
(3) Bias as to subject matters.
(4) Departmental bias
(5) Pre-conceived notion bias
503
(Wade, Administrative Law, Page 311, (1982) de Smith. Judicial Review of Administrative Action
151 (1980)).
504 Divi Jain, student of NLU Bhopal, Nemo in propria causa judex, esse debet THE RULE OF BIAS
(2012) pg 3-18 http://www.legalserviceindia.com/article/l25-Nemo-in-propria-causa-judex,-esse-debtTHE-RULE-AGAINST-BIAS.html accessed on 30 March, 2016
177
(1) PECUNIARY BIAS: Pecuniary biasness is a bias in which any financial interest,
however small, with or related to the parties, would vitiate the administrative
actions. It in the ambit of administrative law would deal with any operative
prejudice that the authority may have against an individual which vitiates the
latters interests.505 The origins of this principle were first seen in C.J. Edward
Cokes opinion in Dr. Bonham Case.506
In case of R v. Hendon Rular District council507 the court in England quashed the
decision of the planning commission, where one of the members was an estate agent
who was acting for the applicant to whom permission was granted.
In India, it has been accepted by the Supreme Court that the dividing line between an
administrative power and a quasi-judicial power is quite thin and is gradually being
obliterated. The obliteration of the distinction between quasi-judicial and
administrative function and invoking the concept of fairness in administrative action
has extended the scope of natural justice.
In the case of Jeejheebhoy vs. Astt. Collector, Thana508 the Chief Justice
reconstituted the Bench upon finding that one of the members of the Bench was a
member of the co-operative society for which the land has been acquired. The decision
of the Collector who in his capacity as the Chairman of the Regional Transport
Authority had granted a permit in favor of a cooperative society of which he was also
the Chairman was quashed by the Honble Madras High Court citing a direct pecuniary
interest.
The Supreme Court also in J. Mohapatra & Co. v. State of Orissa quashed the
decision of the Textbooks Selection Committee because some of its members were
also authors of books which were considered for selection.
(2) PERSONAL BIAS: Personal bias has always been matter of judicial
interpretation. It can be claimed that no other type of bias came for judicial
scrutiny as much as this type at least for a full century. With the growing
interdependability of human relations, cases of personal bias favoring one or
the other party have grown tremendously.
Personal bias can be of two types are:
(a) Where the presiding officer has formed the opinion without finally completing the
proceeding.
(b) Where he is interested in one of the parties either directly as a party or indirectly
as being related to one of the parties. In fact, there are number of situations which may
create a personal bias in the Judges mind against one party in dispute before him. He
may be friend of the party, or hostility against one of the parties to a case. All these
situations create bias either in favour of or against the party and will operate as a
disqualification for a person to act as a Judge.
Justice P.D. Dinakaran vs Honble Judge Inquiry Committee on 5th July 2011
Here the appellant was fined by the college of Physicians for practicing in the city of London without
licence. Half of the fine was supposed to go to the Kings Exchequer and the other half to the College.
The order was struck down by the Court citing that such an order is vitiated that fine may be used as
revenue for the exchequer thereby, creating a pecuniary interest.
507 R v. Hendon Rural District Council (1933) 2KB 696
508 Jeejheebhoy vs. Astt. Collector, Thana AIR 1965 SC 1096
505
506
178
Case: Mineral Development Ltd. V. State of Bihar509

Fact: The petitioner company was owned by Raja Kamkshya Narain Singh, who was
a lessee for 99 years of 3026 villagers, situated in Bihar, for purposes of exploiting
mica from them. The Minister of Revenue acting under Bihar Mica Act cancelled his
license. The owner of the company raja Kamalkshya Narain singh, had opposed the
Minister in general election of 1952 and the Minister had filed a criminal case under
section 500, Indian Penal Code, against him and the case was transferred to a
Magistrate in Delhi. The act of cancellation by the Minister was held to be a quasijudicial act. Since the personal rivalry between the owner of the petitioners company
and the minister concerned was established, the cancellation order became vitiated in
law. Supreme Court found the allegations to be true quashed the said order.
(3) BIAS AS TO THE SUBJECT-MATTER: A judge may have a bias in the subject
matter, which means that he is himself a party, or has some direct connection
with the litigation, so as to, constitute a legal interest. A legal interest means
that the Judge is in such a position that bias must be assumed. The smallest
legal interest will disqualify the Judge.
Thus for example, members of a legal or other body, who had taken part in
promulgating an order or regulation cannot afterwards sit for adjudication of a
matter arising out of such order because they become disqualified on the
ground of bias. Subject to statutory exceptions persons who once decided a
question should not take part in reviewing their own decision on appeal.
To disqualify on the ground of bias there must be intimate and direct connection
between adjudicator and the issues in dispute
To vitiate the decision on the ground of bias as for the subject matter there must be
real likelihood of bias such bias has been classified by Jain and Jain into three
categories:(a) Partiality of connection with the issues;
(b) Prior utterances and pre-judgment of Issues.
(c) Acting under dictation.
(4) DEPARTMENTAL BIAS: The problem of departmental bias is something which
is inherent in the administrative process, and if it is not effectively checked, it
may negate the very concept of fairness in the administrative proceeding.
In Gullapalli Nageswara Rao v. APSRTC the order of the government nationalizing
road transport was challenged in this case. One of the grounds for challenge was that
the Secretary of the Transport Department who gave the hearing was biased, being
the person who initiated the scheme and also being the head of the department whose
responsibility it was to execute it. The court quashed the order on the ground that,
under the circumstances, the Secretary was biased, and hence no fair hearing could
be expected.
(5) PRECONCEIVED NOTION BIAS: Bias arising out of preconceived notions is
a very delicate problem of administrative law. On the one hand, no judge as a
human being is expected to sit as a blank sheet of paper, on the other hand,
preconceived notions would vitiate a fair trial.
II.
AUDI ALTERAM PARTEM
509
Mineral Development Corporation Ltd. V. State of Bihar, (AIR 1960 SC 468)
179
Rule of Fair Hearing

The second principle of natural justice is audi alteram partem (hear the other side) i.e.
no one should condemned unheard. It requires that both sides should be heard before
passing the order. This rule insists that before passing the order against any person
the reasonable opportunity must be given to him. This rule implies that a person
against whom an order to his prejudice is passed should be given information as to
the charges against him and should be given opportunity to submit his explanation
thereto510.
Ingredients of fair hearing
Hearing involves a number of stages. Such stages or ingredients of fair hearing thus
include:
1) Right to notice.
2) Right to present case and evidence
3) Right to rebut adverse evidence
i) Right to cross examination
ii) Right to legal representation
4) Disclosure of evidence to party
5) Report of enquiry to be shown to the other party
6) Reasoned decisions or speaking orders
1. Notice: Hearing starts with the notice by the authority concerned to the affected
person. Consequently, notice may be taken as the starting point of hearing.
Unless a person knows the case against him, he cannot defend himself.
Therefore, before the proceedings start, the authority concerned is required to
give to the affected person the notice of the case against him.
The omission to serve notice would not be fatal if the notice has not been served
on the concerned person on account of his fault.
The notice must give sufficient time to the person concerned to prepare his
case.
The notice is required to be clear and unambiguous. If it is ambiguous or vague,
it will not be treated as reasonable or proper notice.
If the notice does not specify the action proposed to be taken, it is taken as
vague and therefore, not proper.
2. Hearing: An important concept in Administrative law is that of natural justice or
right to fair hearing. A very significant question of modern Administrative law is,
where can a right to hearing be claimed by a person against whom
administrative action is prepared to be taken?
As we know that right to hearing becomes an important safeguard against any abuse,
or arbitrary or wrong use, of its powers by the administration in several ways. A large
volume of present day case law revalues around the theme, wherein courts are called
upon to decide whether or not, in a particular situation, failure on the part of the
administration to give as hearing is fatal to the action taken. There is no such straight
jacket formula to judge this question and every case is to be considered on its own
merits.
The right to hearing can be claimed by the individual affected by the
administrative action from 3 sources.
510
National Central Cooperative Bank v. Ajay Kumar, A.I.R. 1994 S.C. 39).
180
Firstly, the requirement of hearing may be spelt out of certain fundamental

rights granted by constitution.
Secondly, the statute under which an administrative action is being taken may
itself expressly impose the requirements of hearing511.
According to the prevalent principles of judicial review of administrative action,
courts have far greater control over administrative action involving a hearing (or
fair hearing to be sure) than they have otherwise. Thus, a more effective controlmechanism comes into force.
Thirdly it has been reiterated over and over again that a quasi judicial body
must follow principles of natural justice.
The extension of the right of hearing to the person affected by administrative process
has been consummated by extension of the scope of quasi-judicial and natural justice
as well as by discarding the distinction between quasi-judicial and administrative
and invoking the concept of fairness in administrative action. Hearing has thus
become the norm, rather than an exception, in administrative process at the
present day.
Requirements of fair hearing:
A hearing will be treated as fair hearing if the following conditions are fulfilled:1. Adjudicating authority receives all the relevant material produced by the individual.
A hearing to be treated a fair hearing the adjudicating authority should provide the
person-affected opportunity to produce all the relevant materials, which he wishes to
produce. If the adjudicating authority does not allow the person affected to produce
material evidence, the refusal will be violative of the rule of fair hearing. If the
adjudicating authority refuses to hear a person who does not appear at the first hearing
but appears subsequently during the course of hearing. It would be against the
principle of natural justice.
2. The adjudicating authority discloses the individual concerned evidence or material
which it wishes to use against him.
It is the general principle that all the evidence which the authority wishes to use against
the party should be placed before the party for his comment and rebuttal. If the
evidence is used without disclosing it to the affected party, it will be against the rule of
fair hearing.
The extent and context and content of the information to be disclosed depend upon
the facts of each case.
Ordinarily the evidence is required to be taken in the presence of the party concerned.
However, in some situations this rule is relaxed. For example, where it is found that it
would be embarrassing to the witness to testify in the presence of the party concerned,
the evidence of the witness may be taken in the absence of the party.
3. The adjudicating authority provides the person concerned an opportunity to rebut
the evidence or material which they said authority issues to use against him
The hearing to be fair the adjudicating authority is not required only to disclose
the person concerned the evidence or material to be taken against him but also
to provide an opportunity to rebut the evidence or material.
511
Thus article 311 of constitution lays down that no civil servant shall be dismissed or removed or
reduced in rank until he has been given a reasonable opportunity of showing cause against the action
181
REQUIREMENT OF CROSS EXAMINATION

Cross-examination is used to rebut evidence or elicit and establish truth. In
administrative adjudication, as a general rule, the courts do not insist on crossexamination unless the circumstances are such that in the absence of it, an effective
defence cannot be put up.
The SC disallowed cross-examination in State of J&K vs. Bakshi Gulam
Mohammed on the ground that the evidence of witness was in the form of affidavits
and the copies had been made available to the party.
In Town Area Committee vs. Jagdish Prasad, the department submitted the charge,
got an explanation and thereafter straightaway passed the dismissal order. The court
quashed the order holding that the rule of fair hearing includes an opportunity to crossexamine the witness and to lead evidence.
In Hira Nath Misra vs. Principal, Rajendra Medical College the court disallowed the
opportunity of cross-examination on the grounds of practicability. The SC rejected the
contention of the appellants that they were not allowed to cross-examine the girl
students on the ground that if it was allowed no girl would come forward to give
evidence, and further that it would not be possible for the college authorities to protect
the girl students outside the college precincts.
Where, however, witnesses depose orally before the authority, the refusal to allow
cross examination would certainly amount to violation of principles of natural justice.
It can thus be concluded that right to cross-examine is an important part of the principle
of fair hearing but whether the same should be allowed in administrative matters
mainly depends on the facts and circumstances of the case.
RIGHT OF LEGAL REPRESENTATION
Legal representation is not considered as an indispensable part of the rule of fair
hearing in administrative proceedings. This denial of legal representation is justified
on the ground that a) The lawyers tend to complicate matters, prolong hearings and destroy the
essential informality of the hearings.
b) it gives and edge to the rich over the poor who cannot afford a good lawyer. Whether
legal representation is allowed in administrative proceedings depends on the
provisions of the statute. Factory laws do not permit legal representation, Industrial
Disputes Act allows it with the permission of the tribunal and some statutes like
Income Tax permit representation as a matter of right.
The courts in India have held that in following situations, some professional assistance
must be given to the party to make his right to defend himself meaningful: a) Illiterate
b) Matter is technical or complicated
c) Expert evidence is on record
d) Question of law is involved
e) Person is facing trained prosecutor
182
The courts have observed in few cases that it would be improper to disallow legal
representation to the aggrieved person where the State is allowed to be represented
through a lawyer. In Nandlal Bajaj vs. State of Punjab, the court allowed legal
representation to the detainee through a lawyer despite Section 8(e) of COFEPOSA
specifically denied legal representation in express terms because the State had been
represented through a lawyer.
In Board of Trustees, Port of Bombay vs. Dilip Kumar, a request of delinquent
employee for legal representation was turned down as there was no provision in the
regulations. During the course of enquiry, the regulation was amended giving powers
to Enquiry Officer to allow legal representation. The court held that this question
whether legal representation should be allowed to the delinquent employee would
depend on the fact whether the delinquent employee is pitted against legally trained
mind. In such a case, denial of request to engage a lawyer would result in violation of
essential principles of natural justice.
Following this case, the SC in J.K.Aggarwal vs. Haryan Seeds Development
Corporation Limited held that refusal to sanction the service of a lawyer in the enquiry
was not a proper exercise of the discretion under the rule resulting in failure of natural
justice; particularly in view of the fact that the Presenting Officer was a person with
legal attainments and experience.
Justice must be rooted in confidence; and confidence is destroyed when right minded
people go away thinking
- Lord Denning
APPLICABILITY OF THE PRINCIPLES OF NATURAL JUSTICE TO JUDICIAL,
QUASI-JUDICIAL AND ADMINISTRATIVE PROCEEDINGS.
The natural justice principles in India are transmigration of common law to the subcontinent during the British rule. Before the commencement of constitution the courts
in India insisted on fair hearing where punishments were awarded under the statutory
provisions and they demanded fair hearing, even in statutory requirements. But the
decision of the Privy Council in the Shanker Sarups (28 1.A 203 P.C) case, held an
order of distribution under Section 295 CPC to be in the nature of administrative Act,
though right of the individual was affected. Similar other cases dealing with the orders
of the administrative officer were held administrative in character. Such decisions
subjected the working of the common law principle of hearing and this tendency
continued to shape the Indian law. The principle established in the above cases clearly
shows that the principles of natural justice were confined to judicial proceedings.
So Indian courts clung to the traditional distinction between judicial, quasi-judicial and
administrative functions. The application of natural justice was for considerable time
confined to the judicial and quasi-judicial proceedings. The meaning and connotations
of term quasi-judicial has engaged judicial attention repeatedly to determine questions
affecting the rights of subjects and having the duty to act judicially is said to be
exercising a quasi-judicial functions.
The decision of the House of Lords in Ridges case and subsequent cases has
influenced most of the development of law in this respect in India. The influence of
183
Ridges case judgment has been of considerable and valuable importance in deciding
the scope of the application of principles of natural justice.
In state of Bina Panis case (AIR 1967 S.C. 1259) the Supreme Court has tried to
abandon the traditional view of first holding an act judicial and then to observe the
principles of natural justice and stated:
It is true that the order is administrative in Character but even an administrative
order must be made consistently with the rules of natural justice.
The dichotomy between administrative and quasi-judicial proceedings vis--vis
the doctrine of natural justice was finally discarded as unsound by the court in
Re-H (K) (infant) and Schmidt cases in England. This development in the law
had its parallel in India in the form of Associated Cement Companies Ltd.s case,
where in the Supreme Court with approval referred to the decision in Ridges
case and latter in the Bina Panis case.
The decision of Supreme Court in A. K. Kripaks case (AIR 1973 S.C. 150) is
landmark in the application of principles of natural justice.
In the instant case court held: the dividing line between an administrative power
and a quasi-judicial power is quite thin and is being gradually obliterated.
The observations of Hegde, J are remarkable. The learned judge after examining
various English and Indian cases has tried to remove all the clouds of doubt
relating to application of natural justice. To his Lordship, the concept of rule of
law would loose its vitality if the instrumentalities of the state are not charged
with the duty of discharging their functions in a fair and just manner.
In D.F.O South Kheris case, (AIR 1973 S.C. 203) the court reiterated that law must
now be taken to be settled, that even in administrative proceedings, which involve civil
consequences, the doctrine of natural justice must be held to be applicable.
In order to put the controversy at rest Bhagwati,J. in Manekas case emphasized that
enquiries which were considered administrative at one time are now considered quasijudicial in character. Arriving at a just decision is the aim of both administrative and
quasi-judicial enquiries. If the purpose of the rules of natural justice is to prevent
miscarriage of justice one fails to see why those rules should be made inapplicable to
administrative enquiries.
From the above discussion, so hear the other side is a rule of fairness. Fairness is a
component of rule of law, which pervades the constitution. The dispensation of natural
justice by statute will render any decision without observance of natural justice as
unjust and hence is not acceptable.
184
ANALYTICAL APPROACH TO STUDY THE SITUATIONS OR INSTANCE OF

APPLICATION OF NATURAL JUSTICE IN ADMINISTRATIVE LAW
In the regulation of Trade and Commerce
Generally, where a persons right to carry on trade and commerce is restricted, it is
necessary that the administration should give a fair hearing and apply natural justice
to the affected persons case512.
Licensing- Licensing is a common administrative technique used to regulate any
activity. Cancellation of a license is a quasi- judicial activity because it involves civil as
well as pecuniary consequences as the licensee cannot carry on his business without
a license. Therefore, officially principles of Natural Justice cannot be applied in the
process of cancelling a license513.
However, the refusal to grant a license or suspension of license before actually
cancelling it is an administrative function and principles of natural justice should be
applied in these cases.514
In the taking over of management of an undertaking- If the government, after an
investigation finds out that the management of a public undertaking is being managed
by inefficient persons and in such manner which is detrimental to public interest, the
government may take over the management in its hands. However, in this case it has
to adhere to the principles of natural justice.515
Miscellaneous Situations
Powers of search and seizure- The powers of search and seizure are extraordinary
powers in the hands of the state for the protection of social security516 which is of an
extreme nature and constitutes a serious invasion of the privacy, reputation, business
and freedom of the affected person. Although the power of search may not take into
consideration the natural justice, the power of seizure cannot afford to ignore natural
justice. Similarly, the power of confiscation cannot be exercised without the affected
party being given an opportunity of being heard517.
Discretionary powers- Discretionary powers are subject to control and fair hearing
before the decision-making bodies and they may act as a control mechanism on the
decision-making powers. However, discretionary action may comprise of dominant
element, such as, a major administrative policy, economic or any threat to the
community which may negate the idea of fair hearing518.
Super-cession of Statutory bodies and Municipal Corporations - The principle of
natural justice must be observed when the government suspends bodies, such as
panchayats519, or when it appoints an administrator for a registered society in public
512
Swadeshi Cotton Mills v. Union of India, AIR 1981 SC 818 at 832.

North Bihar Agency v. State of Bihar, AIR 1981 SC 1758.
514 Krishnagopal Dutta v. Regional Transport Authority, Burdawan, AIR 1970 Cal 104.
515 Ibid 500
516 M P Sharma v, Satish Chandra, District Magistrate Delhi, AIR 1954 SC 300.
517 Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v. Charan
Das Malhotra, AIR 1972 SC 689.
518 Sadhu Singh v. Delhi Administration, AIR 1966 SC 91.
519 T V R V Radhakrishnan Chettiar v. State of Tamil Nadu, AIR 1974 SC 1862
513
185
interest520. The government will also allow natural justice when it decides to
supercedes a municipal corporation.
Government Contracts- When the government is under contract with a private party
and where the action has statutory basis, the principles of natural justice is
applicable521.
Blacklisting- Under a modern administrative technique, a person is blacklisted for the
purpose of disqualifying him for certain purposes and after which he is not eligible to
deal with the concerned authority of the area. Blacklisting is an oppressive instrument
which is characterized by both legal and constitutional impropriety522. However, before
a person is blacklisted, he eligible of a fair hearing against the proposed action523.
Right to Property- A person whose property rights are adversely affected by any
administrative action is entitled to natural justice. Before passing orders to demolish a
house, the concerned administrative authorities must give the occupant a show cause
against such orders524. Similarly, in cases of land acquisition by the government for
public purposes, the collector, who is responsible for holding an inquiry and then
submitting his report to the government, must follow the principles of natural justice525.
Withdrawal of benefits- When the government withdraws a benefit conferred by it on
a person, the person is entitled to a fair and just hearing. The government must also
follow natural justice principle when an ex gratia benefit already sanctioned in to be
withdrawn526.
Specific Instances
Disciplinary Action:
Against students- Before a student faces disciplinary action, such as expulsion from
the institution, or cancelling of his examination results, he is entitled to fair hearing on
the principles of natural justice by the authorities concerned527.
However, in cases where a student is expelled from the educational institution on the
grounds of academics, the case is different and he is not entitled to natural justice528.
Against employees of Public Authorities- For dismissing and terminating the
service of an employee who is employed under a public authority, a hearing must be
given to the affected person529. In specific cases where service conditions of
employees are governed by statutory provisions, the natural justice provisions must
be read into the statute in the case of termination of the employment. If there are no
520
Jathedar Jagdev Singh v. State of Punjab, AIR 1982 P & H 16.

State of Haryana v. Ram Kishan, AIR 1988 SC 1301
522 Wade, CONSTITUTIONA L FUNDAMENTALS, 1980 p.55
523 Erusian Equipment and Chemicals Ltd v. State of West Bengal, AIR 1975 SC 266
524 Pratap V. Soni v. Gandhidham Development Authority, AIR 1985 Guj 68.
525 Under the Land Acquisition Act, 1894, s 6.
526 G Ramasubbu Pillai v. Government of India, AIR 1980 Mad 23.
527 Board of High school and Intermediate Education, Uttar Pradesh Allahabad v. Ghanshayam AIR
1962 SC 1110.
528 Jawaharlal Nehru University v. B S Narwal, AIR 1980 SC 1666
529 Jagdish Pandey v. Chancellor, University of Bihar, AIR 1968 SC 353
521
186
statutory provisions to govern the service conditions of employees, still natural justice
should be observed while taking disciplinary action against them.530
Against Government servants- A civil servant of the government cannot be
dismissed or removed in rank unless an inquiry is held and in which he is informed of
the charges against him.
He is also entitled to a reasonable opportunity to being heard according to the natural
justice provisions.531It should also be mentioned that any government action, other
than dismissal, removal or reduction in rank, affecting the government employee is
also subject to natural justice principles.532
Against Pensioners- When a civil servant retires from service, he is entitled to receive
pension.
The government cannot reduce or withhold the pension of the person without giving
the pensioner an opportunity to make his defense.533Similarly, the gratuity payable to
a person upon retirement cannot be reduced without giving the employee a reasonable
opportunity to be heard.534
Miscellaneous situations:
There are certain situations where a fair hearing is given to the person concerned
either by characterising the functions discharged by them as quasi-judicial or without
characterising the functions as quasi-judicial, but holding in each case the principles
of natural justice.
They include(a) Termination of citizenship of an Indian citizen on the ground that he has acquired
the citizenship of another country535
(b) When a cooperative society applies for winding up process
(c) Passing, an order of forfeiture of past service of a government employee for
participation in an illegal strike.536
(d) Impositions of damages by a commissioner for failure to deposit provident fund by
the employer537
(e) Withdrawing protection granted to a tenant against eviction under a statute
(f) Deletion of name from the electoral roll538
530
Managing Director, Uttar Pradesh Warehousing Corporation v. Vijay Narayan Vajpayee, AIR 1980
SC 840.
531 Arjun Chaubey v. Union of India, AIR 1984 SC 1356
532 Gajanan L. Pernekar v. State of Goa, AIR 1999 SC 3262.
533 State of Punjab v. K R Erry, AIR 1973 SC 834
534 Union of India v. G. Gangayutham, AIR 1997 SC 3387
535 Mohd Ayub Khan v. Comr of Police, Madras, AIR 1965 SC 1623
536 Shiv Shankar v. Union of India, AIR 1985 SC 514.
537 Organo Chemical Industries v. Union of India, AIR 1979 SC 1803
538 Lal Babu Hussain v. Electoral Registration Officer, AIR 1995 SC 1189.
187
Natural justice is not only observed in cases where statutory power is being exercised,
but also in cases which involves civil consequences to a person539
INSTANCES OF NON
ADMINISTRATIVE LAW
APPLICATION
OF
NATURAL
JUSTICE
IN
Grounds for Exclusion:

Legislative Action- An important ground for excluding the natural justice provisions
in a case is, if the administrative action in question is legislative and not administrative
in character. Natural justice is not applicable to legislative action except in cases where
the relevant statute itself lays provision for some kind of hearing.540
However, there have been cases where the Supreme Court has adopted a liberal
approach in matters of procedural safeguards to individuals even though the function
in question maybe characterized by legislative character.541
Statutory exclusion of natural justice- A statute may expressly exclude natural
justice.
However, there should be strong implication to exclude fair hearing.542 Whether natural
justice is excluded depends much on the basic scheme of statutory provisions
conferring the power, nature of power, purpose for which it is conferred and the effects
of the exercise of that power.
Prompt Action- Hearing may be excluded where prompt action is required to be taken
in the interest of public safety, health or moral grounds. E.g. In cases of pulling down
of a house to extinguish the fire, mass destruction of poultry in case of bird flu.etc.
However, it should be noted that even in emergency cases, the right to hearing should
not exclude minimal natural justice, at least in a rudimentary manner to the concerned
party.
Specific Situations
Selection of Candidates- A mere selection of candidates for a post does not give him
a right to the appointment to such a post. Now, if the government cancels the list of
the selected list on the grounds that it was prepared in an unfair manner, there exists
no opportunity of hearing to the selected candidates.543
Suspension of employees- Suspension of employees against whom disciplinary
action is pending, does not amount to punishment and therefore hearing is not
required in these cases.544
539
Apeejay (Pvt) Ltd. V. Union of India, AIR 1978 Cal 577

Union of India v. Cynamide India Ltd, AIR 1987 SC 1802
541 The function of the government to notify an area as a slum area is quasi-judicial because it affects
the property rights of a person; although it could also be regarded as legislative because of its general
nature. Scheduled Castes and Weaker section Welfare Association(Regd) v. State of Karnataka, AIR
1991 SC 1118
542 It is not permissible to interpret any statutory instrument so as to exclude natural justice unless the
language expressly mentions so and the court is left with no other option. Mohinder Singh Gill v. Chief
Election Comr, New Delhi, AIR 1978 SC 851
543 Union Territory of Chandigarh v. Dilbagh Singh, AIR 1993 SC 796
544 Furnell v. Whangarei High Schools Board [1973] AC 660
540
188
Large number of cases- In cases where the authority has to deal with a large no. of
cases and is required to give hearing to the concerned party in each and every case,
it may not be able to perform its work, and this may become a basis for holding the
functions to be administrative. If there is a case of mass copying in an examination,
no hearing need to be given before cancelling the exam.545
CONCLUSION
The researcher would like to conclude this project undertaken by him by articulating
that jurisprudence, in its finer functional role, fulfils itself by compelling administrative
law to accept natural justice as its civilized component. Some jurists and many
lawyers, belonging to the conservative school, thought that natural justice in its everexpanding application was the invention of avant-garde jurisprudents. This is wrong
since the origin of natural justice dates back to time immemorial when God
commanded Adam, but gave him a fair hearing before taking punitive action on him.
The soul of natural justice is fair play in action. To avoid the travesty of injustice, natural
justice has occupied the field effectively after Ridge v. Baldwin in Britain and through
a series of progressive rulings; India has acclimatized natural justice as a pervasive
principle beyond defiance by the executive or other State edicts.
The researcher, in order to highlight the importance of natural justice in administrative
law function has brought out the cases where it should be completely applicable and
thereafter would result in providing welfare to the party concerned and further
protection of the concerned party from the rigidity of the common law principles. On
the other side, the researcher has also tried to enlighten those cases which do not
necessarily demand the application of natural justice and where the administrative law
would not be considered biased if it violated the principles of natural justice.
Thus, concluding, the aim of the project, i.e. to enlarge upon the principles of natural
justice in accordance with its functioning in relation to administrative law, has been
achieved in the researchers view.
BIBLIOGRAPHY
Books referred:
1. Sunanda Bharti, Nisha Bopanna et al., (eds.), HALSBURY LAWS OF INDIA,
Indian Reprint, 2006 LexisNexis Butterworths, New Delhi.
2. Peter Leyland and Terry Woods, TEXT BOOK ON ADMINISTRATIVE LAW,
4th ed, 2002 Oxford University Press, New Delhi.
3. S.P Sathe, ADMINISTRATIVE LAW, 7th ed, 2007 LexisNexis Butterworths,
New Delhi.
4. Mark Elliot, (ed.), ADMINISTRATIVE LAW: TEXT AND MATERIALS, 3rd ed,
2007 Oxford University Press, New Delhi.Law Publishing Co. Pvt. Ltd, Delhi.
5. Mathew K.K, THREE LECTURES, 1983, Eastern Book Company, Lucknow.
6. Shuklas V.N, (2012) Constitutions of India, Eastern Book Company EBC
publishing (P) Ltd. 2012 pp.215-228
7. Jain M.P (2014) Constitutions of India a new era, Central Book Publications (P)
Ltd. 2014 pp. 135-158
545
Mohd. Ibrahim Khan v. State of Madhya Pradesh, AIR 1980 SC 517
189
CRITICAL COMMENT ON THE CRIMINAL LAW AMENDMENT ACT

2013
ROMA BHOJANI
WEST BENGAL NATIONAL UNIVERSITY OF JURIDICAL SCIENCES, KOLKATA
Abstract
My article is a critical comment on the Criminal Law (Amendment) Act, 2013. This
amendment act was passed after the brutal rape of Nirbhaya rape in Delhi. In this
article I have analyzed this Anti Rape Act. For this I have traced the changes brought
about through this legislation by looking at the various Supreme Court judgements
which had come prior to the legislation. I have also analyzed the changes which been
brought by the act. The impact, efficacies and criticisms of this act have also been
mentioned in this article. The article mainly focuses on the amendment, which
recognized non- penetrative sexual offenses. This is seen to be a major milestone as
it was a demand, which had been made by feminists since a long time. I have quoted
feminists like Prof. MacKinnon, Ms. Flavia Agnes, Ann Cahill on the same. Other
offenses like acid attacks, voyeurism introduced by this act and the ease in judicial
process brought about has also been analyzed in this article.
INTRODUCTION
The brutal gang rape and murder of Nirbhaya in Delhi546 in 2012 shook the entire
country. Due to this incident many unjust laws regarding sexual offenses came to light
and a realization of the need to change these laws immediately was realized. The
Criminal Law (Amendment) Act, popularly known as the Anti-Rape Act, was thus
passed in 2013 in an attempt to change these unjust and biased laws. This marked a
victory for women activists who have been demanding this change for decades. 547
Despite this apparent cause and effect, the transformation of Rape Law in India was
never seen as a spontaneous reaction, but a product of slow social change across the
past four decades. The first section of the article traces this gradually change as seen
in various Supreme Court decisions; second, it seeks to analyze the changes brought
forth by the act; third, the article examines the impact of these changes in bringing
social transformation. Finally, the article evaluates the efficacy of the Act and the
criticisms presented. Although the Criminal Law Amendment Act 2013 includes not
only rape but also other sexual offences of equal importance such as stalking and
voyeurism which I have dealt with in the latter half of the project, the main focus of the
article remains the change in the definition of rape.
546
Shubhomoy Sikdar, Delhi Gang Rape: victim narrates the tale of horror, The Hindu, December 23,
2012, available at http://www.thehindu.com/news/national/delhi-gangrape-victim-narrates-the-tale-ofhorror/article4230038.ece.
547
Shambo Nandy, Justice at last for women? IV JILS (2013) available at
https://jilsblognujs.wordpress.com/2013/08/24/justice-at-last-for-women/.
190
BACKGROUND
The Indian Penal Code (IPC) was unchanged since its implementation in 1860.548 With
a somewhat ill-defined description of rape, no definition of consent, and an explicit
waiver to marital rape, the courts of India perpetuated and cemented this rule into
place with throughout the years. The inflexibility of the interpretation was such that
even passive submission was considered consent despite evidence pointing
otherwise.
This archaic mindset was first challenged in the case Tukaram v State of
Maharashtra549, a case concerning the rape of woman in a police station. Being afraid
of further brutalization, and being grossly traumatised, the victim refused to retaliate
against the perpetrators. The Court observed that Mathuras body bore no outwards
sign of rape and held, that passive submission amounted to consent, the Court
exonerated the accused. It noted that as the affair was peaceful, passive consent was
given.
Another nadir of the Indian Supreme Court came in the case of Premchand v
Haryana.550 In this case, a sex worker was raped by the perpetrators. The Court, owing
to the conduct of the woman, reduced the punishment of the perpetrators. However,
the view gradually started changing. In State of Maharashtra v Madhuker551 the court
righted its wrong by its observation that Even a woman of easy virtue is entitled to
privacy and no one can invade her privacy as and when he likes. So also it is not open
to any and every person to violate her person as and when he wishes. She is entitled
to protect her person if there is an attempt to violate it against her wish. She is equally
entitled to protection of law.552
A more liberal interpretation appeared in the judgment of the case Vishakha v State
of Rajasthan553 in 1997 where the Court ruled that sexual harassment of women was
unacceptable and it laid down guidelines and responsibilities in the workplace to
establish security and a safe working environment.554 The judgment was important as
it was arguably, the first time (after the protection of the victims identity in cases of
heinous offences guidelines), that the court used its wide judicial discretion in laying
down the guidelines.
By 2004, Supreme Court was urged to consider the definition of rape beyond
penetration in Sakshi v Union of India but it refused to do so.555 It was here that the
law stood, till 2013 when the unfortunate rape took place. It was followed by severe
agitations in the capital, to a point where the Chief Minister of the Delhi, said that she
was afraid of letting her daughter on the streets.
What followed the gang rape in December was the release of the Verma Committee
Report by a parliamentary committee led by a former judge of the Supreme Court,
548
Indian Penal Code, 1860.

Tukaram v State of Maharashtra 1979 AIR 185.
550 Premchand v Haryana AIR 1989 SC 937.
551 State of Maharashtra v Madhuker AIR 1991 SC 207.
552 Id.
553 Vishakha v State of Rajasthan AIR 1997 SC 3011.
554 Id.
555 Sakshi v Union of India AIR 2004 SC 3566.
549
191
Justice Verma.556 This report was the most liberal interpretation given to Anti-rape
legislation which came in just 29 days after the incident. It created new offences in
form of Stalking and Voyeurism.
Prior to the Criminal Law (Amendment) Ordinance, only 1 year imprisonment was
given for the offences such as voyeurism and they were clubbed under the umbrella
offence of Outraging the Modest of a Woman. 557 Stalking was not even an offence.
The classification of offences into separate crimes has resulted in an increased
punishment to that of 3 years. The Ordinance is inspired from the recommendations
of the Verma Committee report but does not conform to the recommendations per se.
FROM RAPE TO SEXUAL ASSAULT

Prof MacKinnon states that in feminist analysis rape is not an isolated event or a moral
transgression, or an individual interchange gone wrong but an act of terrorism and
torture within a systematic context of group subjection.558 The major objective behind
passing the act is to change the misogynist outlook, which is present in our country
regarding sexual offenses and make the legal process smoother for the victim.559
Instead of the ostracizing the offender, the society looks down upon the victim and she
subsequently leads a difficult life.
I argue that one of the most important amendments brought about by this legislation
is that the replacement of the word rape with sexual assault. However, this change
was not new to the amendment. In 2002, the 172 nd Law Commission Report of India
suggested that such a change be made. After more than 10 years of the report, the
term rape was changed to sexual assault. The latter term criminalizes assault without
penetration, and penetration to any extent other than penile penetration. From a pure
feminist stance as advocated by Professor MacKinnon, the centrality of penetrative
sex in the constitution of legal rape is nothing but protection offered to women in male
genital terms.560 She argues that penetration may be less central to the sexuality,
pleasure and violation of a woman than it is to a man. Thus rape defined in terms of
penetration she argues is more a crime on the monogamy of a woman than it is on her
sexual identity.561
This stance is supported even by Flavia Agnes who is a protagonist of a different brand
of feminism; she states Despite all the reforms, rape outside marriage continues to
revolve around the notion of purity and stigma, rendering the victim unfit for
marriage.562 From a third stream of feminism, Ann Cahill along with Judith Butler
argue that rape is a pervasive threat to the integrity and identity of a woman's
person.563 Keeping this analysis in mind, the transformation from rape to sexual
556
Justice Verma Committee Report, 2013.

Indian Penal Code, 1860, 354.
558
Catharine
A.
MacKinnon,
Rape
on
Coercion
and
Consent,
available
at
http://www.julietdavis.com/WST383/rape.pdf.
559 Bhattacharyya, Space and Culture, India 1 ACCB Publications, England, 14, 14.
560 Id.
561 Id.
562 Flavia Agnes, Marital Rape: Why both sides have got it wrong, T.O.I, May 17, 2015, available at
http://timesofindia.indiatimes.com/home/sunday-times/all-that-matters/Marital-rape-Why-both-sideshave-got-it-wrong/articleshow/47314323.cms.
563 ANN J. CAHILL, RETHINKING RAPE, (Cornell University Press, 2011).
557
192
assault which includes non-penetrative sex, is vital from the feminist perspective. As
can be seen the amendment resonates a unified feminist stance on the redefinition of
rape to include non-penetrative sex.
From an executive stand-point, there were many cases in which an offender was not
found guilty of rape because there was no penile penetration. A leading example of
the same would be Tukaram v State of Maharashtra564 also known as the Mathura
rape case where the victim of a brutal police rape was denied justice and the offenders
found innocent because she failed to resist the violation of her consent by people who
were meant to protect it. The amendment ensures from a legislative perspective that
offenders such as those in the Mathura rape case do not go Scott free.
INCLUSION OF OTHER OFFENCES
New offences have been added like acid attack565, sexual harassment, voyeurism566,
stalking with related punishments.567 Earlier there were no specific provisions for these
acts. The inclusion of these actions was a legal culmination of the feminist movement
to criminalize acts of violence against the womans identity. The feminist movement
achieved a milestone around the turn of the century with the Vishakha Guidelines.568
Yet, with Sakshi569 it became clear that the Supreme Court said thus far and no further
to judicial development of the IPC. It was evident that without statutory change, the
feminist movement had reached a hurdle. Although workplace legislation570 and other
statutes571 were enacted, they encompassed only limited spheres in a womans
experience and exposed her to significant risk. With the inclusion of sexual
harassment, stalking etc. the legislation seeks to limit these grounds of exposure. Acid
attacks are from an Indian perspective considered by feminist scholars to be another
act of male dominance over the female body.572 Thus far, only assault, hurt and
outraging the modesty of a woman under the IPC were included as offences thereby
limiting the punishment of such offenders. With the new legislation, criminalizing acid
attacks has become a step towards recognizing the social evils present in the society
presenting hope of its eradication.
EASE IN JUDICIAL PROCESS
Other important amendments are those which make the legal process much easier
564
Supra note 549

The Criminal Law (Amendment) Act 2013, Amendment to 100, 326A & 326B.
566 The Criminal Law (Amendment) Act 2013, 354C.
567 The Criminal Law (Amendment) Act 2013, 354D; V. K. Madan & R. K. Sinha, The Dynamics Of
Rape In Modern Indian Society No. 4 AIJJS 81, 83 (2013).
568 Vishaka & Ors vs State of Rajasthan & Ors, JT 1997 (7) SC 384; GOIs Instructions regarding
prevention
of
Sexual
Harassment
of
Working
Women,
available
at,
http://www.curaj.ac.in/PDF/anti%20sexual%20harrassment%20cell/VishakaGuidelines%20CCSH%20GOI%20Instructions.pdf.
569 Sakshi v. Union of India, AIR 2004 SC 3566.
570 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
571 The Indecent Representation of Women (Prohibition) Act, 1986; The protection of women from
Domestic Violence Act, 2005; The Immoral Traffic (Prevention) Act, 1956; The Dowry Prohibition Act,
1961.
565
572
T Goyal, Globalization and Gender Based Violence: Case of Acid Attacks on Indian Women, Journal
of Politics and Governance 121.
193
and less traumatizing for the victim. Failure to record information in sexual offences
cases by a public servant is now considered to be a punishable offense.573
Furthermore, it is now compulsory for the statements of victims of sexual offenses,
acid attack and other such acts to be recorded by a female officer.574 This helps in
making the process of giving the statement a lot more comfortable for the victim. 575
Additionally, the statement recorded by the Judicial Magistrate will be treated as the
evidence of the victim presented by the prosecutor so that the victim does not have to
give the statement again in court. Also, the burden to prove that there was no consent
was earlier on the victim but through the amendment this onus has been shifted to the
accused. Moreover, discussion of the previous sexual history of the victim is barred in
court. These steps demonstrate a significant attempt on part of the legislature to ease
the judicial process. It encourages the victims to speak out against the perpetrated of
the crime and bring them to justice.
However, the Amendment Act has failed the expectations of many. For instance, the
Verma Committee had suggested that the requirement of sanction for prosecution of
armed forces personnel should be excluded when a sexual offence is alleged. 576
However, the Parliament ignored this recommendation of the committee. The
Committee had also suggested that the exception to marital rape should be removed
and marriage should not be considered as an irrevocable consent to sexual acts. 577
But this was not implemented. Contrarily, scholars have argued that the Act must be
viewed as a first step to a transformation which has begun and that which would be
carried forward by social movements. A major fallacy though and a fundamental
critique I believe, is the fact that a further change in the legislation will take a
substantially long time. This necessarily means that to a large degree till the time when
a further amendment addressing the critiques of the present legislation is enacted, the
womens rights discourse will be stagnated focusing their efforts on achieving these
changes which already should have been enacted rather than focusing on the
subversion of other forms of patriarchy.
CONCLUSION
The Criminal Law (Amendment) Act 2013 has brought about a lot of beneficial
changes and amended many unreasonable laws, which earlier helped the victim in
getting away with their crime. By making positive changes in the procedures of
investigations and medical examination, has empowered victims to bring justice and
assist the prosecutor in fighting the case. However, there are some criticisms of the
act, which should be kept in mind.
573
The Criminal Law (Amendment) Act 2013, 166A.

The Criminal Law (Amendment) Act 2013, Amendment of 154.
575 Id.
576 Justice J.S. Verma et al., Report of the Committee on Amendments to Criminal Law (2013),
available at
http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%2
0report.pdf.
577 Id.
574
194
The biggest criticism being that marital rape is still not considered to a crime in India.
The misconception that women cannot deny sex to her husband needs to be changed
and for this first our law need to be amended. There are many victims of marital rape
who are unable to get justice because of this unjust law. Most importantly, the impunity
of the social citadels has been kept intact (the family, marriage, the police, the army,
public servants). Yet this law does not protect victims, even to the extent it guarantees.
The short comings of the law are in fact furthered by the malady of poor governance
and administration. To this defect, the Criminal Law Amendment Act is ineffective in
its operation. Without police reforms and reforms in the executive, the benefits of the
new legislation will attenuate and the defects will remain highlighted.
195
LAW AND SOCIAL CHANGE: AN INDIAN PERSPECTIVE

KAHKASHAN JABIN AND SHREET RAJ JAISWAL
LUCKNOW UNIVERSITY
ABSTRACT
The objective behind writing this Article is to demonstrate the co-relation between law
and social change. It focuses on various legislations passed after independence to
facilitate the status quo. The research design in furtherance of this topic includes
various websites, statutes, the Constitution, articles and books of prominent writers.
Major findings are the legislations that work for the welfare of society. For clear
understanding the Article divides Indian society into pre-independence and postindependence era and thereafter compares the changes brought by various
legislations after independence. For understanding various legislations clearly and to
remove any type of ambiguity, the design of the article categorizes legislations into
four heads namely land reforms, labor welfare legislations, legislations relating to
women empowerment and marginal class welfare legislations.
Keywords: - social change, social welfare legislations, constitutional provisions
relating to
social welfare.
INTRODUCTION
Law is for society and society is not for law goes parallel with the factum that law is
an instrument to upthrust the social change. For decades and now, society theorists
have been preoccupied with attempts to explain the relationship between law and
social change in the context of development of legal institutions. They viewed law both
as an independent and dependent variable (cause and effect) in society and
emphasized the interdependence of the law with other social systems.
Jurisprudentially, the relation between law and society was first emphasized by
Historical School of Jurisprudence. Friedrich Carl Von Savigny578, one of the pioneers
of this school opines that law is the product of general consciousness of people and a
manifestation of their spirit. The basis of origin of law is found in Volksgeist which
means peoples consciousness or will and consists of traditions, habits, practice and
beliefs of the people.579 Thus the jurists of this school relate law with custom, culture
and tradition of society. The relation of law and morality was strengthened by
Sociological School of Jurisprudence; the main concern of sociological jurists is to
study the effect of law and society on each other. They treat law as an instrument of
social progress.580 Roscoe Pound, a jurist of this school conceived law as a social
engineering, its main task being to accelerate the process of social ordering by making
578
Friedrich Carl von Savigny, Wikipedia, http://en.wikipedia.org/wiki/Friedrich_Carl_von_Savigny

(last visited: 27/06/2016)
579Mathias
Reimann, The Historical School Against Codification: Savigny, Carter, and the Defeat of
the New
York Civil Code, 37 AM. J. COMP. L. 95, 97-98 (1989). Cited in
http://www.law.fsu.edu/journals/transnational/vol11_2/knudson.pdf
580 N.V. Paranjape, Studies in Jurisprudence and Legal Theory, 86 (7th ed., Central Law Agency,
Allahabad, 2013)
196
all possible efforts to avoid conflicts of interests of individuals in society. Thus courts,
legislators, administrators and jurists must work with a plan and make an effort to
maintain a balance between the competing interests of society. 581 Therefore, law is
one of the instruments of social change to bring change in society; it not only regulates
human behavior but society at large. Law and social change have a nexus between
them and they are always co-relative.
HOW FAR SOCIAL CHANGE HAS HELPED LAW IN MAINTAINING ITS DYNAMIC
CHARACTER
Law is dynamic in nature; it changes with the change in society. The substantial
dynamic nature of Law can be projected in the light of Social Change. The word social
change is not as simple as it seems. It is a broader term and encompasses many
things such as humans of society, social structure of society, change in norm,
economic change, change in structure of social institutions etc. It also includes
personal domain of individuals like marriage, family etc. The best possible examples
of social change that can be witnessed are nuclear family and live-in relationship. 50
years back, there was no concept of nuclear family but today every next family is a
nuclear family.582 Same is with live-in relationships. It is continuously increasing and
standing parallel to marriage.583 According to law on presumption584 under The Indian
Evidence Act, 1872 the presumption of marriage applies to live-in relationship on the
same footing as it applies to standard marriages.585
For analyzing the impact of social change we divide Indian society into:(i)
Pre-Independence Era
(ii)
Post-Independence Era
Pre-Independence Era
It is a well-established fact in itself that our society was not changed during 250years
of British rule than what 60years of democratic society has flagged off tremendous
changes after independence.586 British era cannot claim that Law is an instrument of
Social Change. Rationale behind it is that Britishers have not enacted any social
welfare legislations and enacted only those laws that strengthened their rule. They
framed most of the legislations for administrative convenience. Their sole policy was,
if they want to rule they should not interfere in social, cultural and religious beliefs and
581
N.V. Paranjape, Studies in Jurisprudence and Legal Theory, 100-101 (7th ed., Central Law
Agency, Allahabad, 2013)
582
The Changing Indian, Hindustan Times (June 16, 2013)http://www.hindustantimes.com/india/thechanging-indian/story-85zWGAQDpm2kDspx6uV7RN.html (last visited: 27/06/2016)
583 Harish V Nair, Live-ins now acceptable in society, rules Supreme Court, India Today (July 24,
2015) http://indiatoday.intoday.in/story/supreme-court-acknowledges-live-inrelationships/1/453665.html (last visited: 27/06/2016)
584 S. 114, The Indian Evidence Act, 1872
585 Madan Mohan Singh v. Rajni Kant A.I.R. 2010 SC 2933
586 Educational and Social Reform of British in India, Holistic Thought,
http://holisticthought.com/educational-and-social-reforms/ (last visited: 27/06/2016)
197
matters of Indians.587 But it is a matter of pride that there were two legislations in this
context during British rule and remarkably they were not the seeds of British legislation
but herculean act of the most renowned social reformers of that time viz. Child
Marriage Prohibition Act, 1929 (popularly known as Sarda Act) by Raja Ram Mohan
Roy588 and Widow Remarriage Act, 1856 by Ishwar Chand Vidhyasagar589.
India at a glance before independence:Social Inequalities: There were many social inequalities like caste system, sati
system etc.590 Untouchability was practiced as tradition and untouchables were denied
all those things which today Article 14-17 provide as fundamental right, thus the
situation of Harijans can easily be visualized in the absence of fundamental rights. The
condition of women needs no words to explain as they were hardly treated like
humans; the practice of Sati was the most galling culture.
Economic Inequalities: The society was divided into Haves and Haves Not.
There was concentration of wealth and means of production to a limited group of
society such as capitalists or those engaged in administrative works under Britishers.
The conditions of farmers and peasants were like that of animals as they were bonded
labours with minimal or no wages. Article 23 marks the need of such provision to uplift
their dignity and conditions. This inequality witnesses the discrimination in wages
distribution to male and female workers on the mere basis of gender although they
both were engaged in same work or work of similar nature.
Political Inequalities: Right to vote as it seems today was not as such in preindependence era. Britishers designed the entire election systems on their own whims
and facts. Not everybody was allowed to contest election nor they were permitted to
cast vote. The election patterns revolve around the Britishers superiority and fine
demarcation of Indian religions. How can one forget the British ideology of Divide and
Rule? It has its roots in the election system during British period. Further, women were
not allowed to cast their vote, contest the election and elections were contested on
economic grounds.591
Thus the society was completely knitted in the threads of inequalities. Apart from these
there were other social evils such as dowry, sati practice, anti-secularism etc.
Post-Independence Era
The aforementioned social inequalities were observed by our freedom fighters and the
change they wanted to make can be visualized through the Preamble to the
587
Social and Economic Impact of British Rule in India, History Discussions,

http://www.historydiscussion.net/british-india/social-and-economic-impact-of-british-rule-in-india/1595
(last visited: 27/06/2016)
588 Ram Mohan Roy, Wikipedia, https://en.m.wikipedia.org/wiki/Ram_Mohan_Roy (last visited:
27/06/2016)
589 Hindu Widows Remarriage Act, 1856, Wikipedia,
https://en.m.wikipedia.org/wiki/Hindu_Widows%27_Remarriage_Act,_1856 (last visited: 27/06/2016)
590 The British Caste System and India, Icy Tales, http://www.icytales.com/british-caste-system/ (last
visited: 27/06/2016)
591Gender
Inequality in Politics, Boundless,

https://www.boundless.com/sociology/textbooks/boundless-sociology-textbook/gender-stratificationand-inequality-11/women-in-the-workplace-89/gender-inequality-in-politics-513-10467/ (last visited:
27/06/2016)
198
Constitution of India. They included the words in preamble such as JUSTICE, social,
economic and political. The matters which were untouched were given prime
importance and social justice was at its top. As far as administrative framework is
questioned, British framework was adopted in toto. Parliament now started enacting
those laws which were essential for social justice. Apart from Preamble, Directive
Principles of State Policy (DPSP)592 makes a constitutional obligation on State to
provide for social and economic justice. This can be seen in Article 38 of the
Constitution which is just the restatement of the preamble. When we relook the laws
made by the Parliament after Independence, we find more than 80% laws are related
with social reforms. Thereby, maintaining the dynamic character of law.
HOW SOCIAL REFORMS BROUGHT SOCIAL CHANGES

Social reforms are the methods to bring the social change that we wish to see in our
society. It has many variants such as social movements, legislations, treaties etc. But
the most important and prominent are legislations as they act as a definite source and
are not in any manner ambiguous. To understand social change through legislations,
it can be categorized into four heads:
i)
Land Reform Legislations
ii)
Labor Welfare Legislations
iii)
Legislations related with upliftment in the status of women
iv)
Legislations for improving the condition of marginal class
Land Reform Legislations

Before independence, Indian society was distributed into two classes:
a)
Land lords or zamindars- This category of people owns land
b)
Those who dont own lands (They were in majority).
After independence, there was continuous demand for distributive justice and was
finally directed to the State under Articles 39(b) and (c) of the Constitution. The first
step in this direction was introduction of Land Abolition Acts viz. also known as
Abolition of Zamindari Acts, in every State. Further Land Acquisition Act, 1950 was
also passed to take excess land from land lords and these were transferred to Gram
Samaj and in turn they give it to landless on lease. Till 1950 almost all States have
passed these acts. Thus, the practice of land lording was abolished.
But in the working of these legislations there was a major obstruction viz. Art. 31593
read with Article 13(2) of the Constitution which provides that State shall not make any
law which takes away anyones fundamental rights. Both the things were not possible.
On one hand everyone was given right to property by constitution. On the other hand
592
Art. 36-51, The Constitution Of India, 1950

"No person shall be deprived of his property save by authority of law." Rep. by the Constitution
(Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f. 20-6-1979)
593
199
Parliament was effecting land acquisition. Hence, these parliamentary laws were
challenged on account of these Articles. To solve this problem and in order to facilitate
acquisition acts, Parliament introduced The Constitution (First Amendment) Act, 1951
which added Article 31A, 31B and Schedule 9 to the Constitution. According to Article
31B, if any legislation is inserted under Schedule 9, then it will be immune from Art.
32. A total of 284 Acts were included in 9th Schedule and 250 were related to land.
Thereby, maintaining the balance between fundamental right and efficient working of
the State.
Thus efforts were made to bring social change and to provide landholding to
everyone equally. This also lead to various social movements, one of them was
Bhudaan Andolan by Acharya Vinoba Bhave in 1951594, the objective behind it was
to persuade wealthy land owners to give up their land to needy. At present, there is no
much inequality as it was before independence and there is parity in landholding. This
change has occurred by interference of law. Had not these laws were made, such
changes would not have occurred.
Labor Welfare Legislations

Before independence, the condition of labors was very critical and filled with misery.
The practice of bonded labor, forced labor and begaar labor were very much
prevalent. Apart from all these cruelties, there was no social and economic security
and they were subjected to severe discrimination. After independence, the framers of
the Constitution wanted their condition to improve and hence they made provisions
under Article 39 in the Constitution that facilitates distributive justice and benefits
labour class.
After independence much legislation were passed to improve the status of labors. In
year 1947, The Industrial Disputes Act was passed. This Act recognized the term
industry and by virtue of this Act they were given right to strike and right to lay off
(Taalabandi). Another Act namely Trade Union Act, 1947 was passed to provide for
the registration of Trade Unions and in certain respects to define the law relating to
registered Trade Unions. It gave labours right to form labour unions. Thus the interests
of trade unions were safeguarded by this legislation. In 1948, Minimum Wages Act
was passed which required the employer to provide minimum wages to employees.
This clothes them with economic security. In the same year Workmens
Compensation Act was passed which also provided social and economic security to
workers i.e. if in any case any worker gets injured or dies during course of his
employment then he is entitled to get compensation; more importantly liability of
employer is made absolute. In 1965, The Payment of Bonus Act was passed. It was
enacted so that industries should provide bonus even at times of loss. In year 1976,
system of bonded labour was abolished by introduction of Bonded Labour System
(Abolition) Act and now no one shall be compelled to work against his will. Other Acts
such as Apprentices Act, 1961 to provide for the regulation and control of training of
apprentices and for matters connected therewith and Equal Remuneration Act, 1976
which promises equal pay for equal work and embraces fundamental right.
594
Bhoodan Movement, Wikipedia, https://en.wikipedia.org/wiki/Bhoodan_movement (last visited:

27/06/2016)
200
In this way legislative efforts were made to change the status of labor class and to
remove inequalities and discriminations. Another example that can be cited is of
Mahatma Gandhi National Rural Employment Guarantee Act, 2005 (MGNREGA)
which promises 100 days of guaranteed work in your own village, it aims to prevent
urbanization and exploitation of labors. But there are still some grey areas where work
has to be done. One of these is that the aforementioned laws are only for labors in
organized industrial sector. The condition of labors in unorganized sector such as
labors in agriculture sector and that in construction industry is still miserable and needs
instruments to deal with it.
Legislations related with upliftment of status of women
The status of women was not the same as it seems today. The pre-independence era
witnesses unequal treatment of women, absence of absolute interest of women in
property and political right. After independence, framers of constitution wanted to
improve their condition and bring social change. They made provision under Article
15(3) of the Constitution which provides that nothing in this article shall prevent the
State from making any special provision for women and children. With the help of this
constitutional provision, reservation has been made in various employment
opportunities for women to bring them at par with males. After this constitutional act,
Parliament adopted policy of women empowerment to strengthen them. In 1956, by
the virtue of The Hindu Succession Act, women have been given absolute interest in
property595 and after making few amendments596 now they are sharing equal status as
that of a male child597. In 1962, a milestone law-Dowry Prohibition Act was passed
to eradicate the evils of dowry which was deeply rooted in the Indian society. In year
2005, Protection of Women from Domestic Violence Act was passed to prevent
violence against women. Under Section 125 Criminal Procedure Code, 1973 wife has
been given right of maintenance. Recently in year 2013, The Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act was passed to
provide protection against sexual harassment of women at workplace and for its
prevention and redressal of complaints of sexual harassment and for matters
connected therewith. Further, another legislation that highlights the change in the
status of women is The Maternity Benefit Act, 1961 which maintains the dignity of
women and respects their motherhood, it regulate the employment of women in certain
establishments for certain periods before and after child-birth and to provide for
maternity benefits. Last but not the least; a whole ministry is made with the objective
of women empowerment- National Commission for Women598. It must be noted that
the mother provision behind all these legislations and formations is Article 15(3) of the
Constitution without which they could never have been made.
This all have been done to achieve gender justice i.e. to bring status of women equal
to that of men. They have been given upliftment in education, public employment. As
a result of such affirmative action, the condition of women has much improved from
what it was before independence and this all could not have been possible without
aforementioned social reforms.
595
S. 14, The Hindu Succession Act, 1956

S. 3, The Hindu Succession (Amendment) Act, 2005
597 S. 6, The Hindu Succession Act, 1956
598 http://ncw.nic.in/ (last visited: 27/06/2016); National Commission for Women, Wikipedia,
https://en.m.wikipedia.org/wiki/National_Commission_for_Women (last visited: 27/06/2016)
596
201
Legislations for Improving the Condition of Marginal Class

The Condition of Marginal Class or Scheduled Caste (SC) and Scheduled Tribe (ST)
or Backward Class was very critical. They were subjected to severe discriminations,
unequal and inhuman treatment and were prey to caste system. They were not
allowed to access public places and subjected to social and religious disability. They
represented 80% of the population. They were so deprived that they were not allowed
to take part in national movement for the struggle of independence. This was one of
the prime reasons for lazy independence since 1857. It is noteworthy that in the
struggle for independence from 1857 there had been many movements in its
furtherance but there wasnt any major mass movement including public from all
regions of India. But there was one splendid personality who recognized the reason
behind this problem-Mahatma Gandhi. He realized that the sole reason behind this
problem is Social Inequality. Therefore in order to remove it, he called first major mass
movement Non Co-operation Movement, 1920. One of the major achievements of
this movement was that it included people from all sections of society irrespective of
class and sex. In the leadership of Gandhi ji there have been other major mass
movements such as Civil Disobedience Movement, 1930 and Quit India Movement,
1942.
After commencement of the Constitution, this was the prime aim of framers to make
them par with the Upper Class i.e. uplift the weaker sections of society. Several steps
were taken in the course of this upliftment. Among the constitutional safeguards,
Article 16(4) was included in Constitution that makes provision for the reservation of
appointments or posts in favor of any backward class of citizens in public
employments. This is considered as an enabling clause. It enables the State to provide
reservation in Public employment for SC/ST/OBC if they are not adequately
represented. Further, Article 16(4A) provides for making provisions for reservation in
matters of promotion in posts in the services in favor of the Scheduled Castes and the
Scheduled Tribes if they are not adequately represented in the services under the
State. Article 15(4) was later added599 to make provisions for welfare of SC and ST.
Article 338 mentions the establishment of national commission for SC and ST and
Article 340 for OBC commission. Schedule 5 and 6 of the Constitution is related with
administration in tribal areas.
Apart from these constitutional safeguards, Parliament has passed in year 1955,
Untouchability (offences) Act. By virtue of this Act, untouchability was made an
offence, may it be religious or social and punishment was imposed as a fine of 500
rupees or 6 months imprisonment.600 Later in year1976 this Act was renamed as
Protection of Civil Rights Act. The root of this Act lies in Article 17 of the Constitution
which declares Untouchability as unconstitutional and punitive. In 1989, Parliament
passed The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities)
Act popularly known as Harijan Act. According to this Act, propagating remarks
against any person on the basis of his caste was made punishable offence which was
non-bailable and cognizable. This Act is very strict in its provisions and grave too due
to two reasons, firstly if there has been complaint lodged against any person then he
gets arrested and his arrest is non-bailable and secondly the onus is on the defendant
to prove that he hasnt said anything as such which is directly or indirectly referring to
a persons caste and the presumption of innocence of the accused as followed in
599
600
S. 2, The Constitution (First Amendment) Act, 1951

S. 4, The Protection of Civil Rights Act, 1955
202
ordinary course of law is not applicable here in this case. Public employment,
education etc. are some other areas where laws have acted as forceful instruments to
bring the improvements. The condition of marginalized has improved as compared to
pre-independence era. This is called protective discrimination or affirmative action.
Law is the prime factor for this major change. Without legislations, these protective
measures could not be imagined.
Lastly it would not be wrong to say that law not only brings the social change but
follows social change i.e. changes itself according to the society. If parameters of
society changes then that of law changes too; here, an example can be given of livein relationship: a social change so far as marriage institutions is concerned viz.
emerging an alternate to marriage. Section 125 of the CrPC, 1973 mentions three
types of persons who can claim maintenance under this section namely wife, children
and parents. As explained in this Section wife means a legally wedded wife but when
we see the era of year 2005 and later in subsequent years Supreme Court gave
various judgments justifying live-in relationship and held that it could be morally wrong
but not legally. Law could not be a spectator to this social change and it has to change
with this social change. The start of this change can be seen in Protection of Women
from Domestic Violence Act, 2005 and within it, in the provision of alimony. This Act
explains domestic relationship as, where women living in relationship with that like of
marriage.601 Thus if a women do not get compensation U/S 125 of CrPC in case of
live-in relationship then she can claim the same by virtue of Protection of Women From
Domestic Violence Act, 2005. Another example that visualizes social change and that
too if we talk about last 20 years, computers have changed our way of life but it
introduced new form of offences i.e. cyber-crimes. Law was not ready for it but it could
also not be a silent watcher to it. For this Information Technology Act, 2000 was
enacted and there were changes made in existing laws in accordance to it. Thus it
would not be wrong to say that law follows social change. In the nutshell, the words of
Justice Bhagwati would be perfect to summarize the co-relation between law and
social change:
"If the law fails to respond to the needs of changing society, then either it will stifle
the growth of the society and chock its progress or if the society is vigorous enough, it
will cast away the law which stands in the way of its growth. Law must therefore
contently be on the move adapting itself to the fast changing society and not behind602
601
S. 2(f), Protection of Women From Domestic Violence Act, 2005

Law and Social Changes, Law and Social Changes, law-socialchanges.blogspot.in/?m=1 (last
visited: 27/06/2016)
602
203
ENVIRONMENTAL POLLUTION AND ENVIRONMENTAL LAW IN

ACTION
SHRIYA BADGAIYAN
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY, VISAKHAPATNAM
ABSTRACT
The environmental consciousness needs to be inculcated in any society to be a perfect
society, or rather to be more appropriate, otherwise, an ideal society means, the
society which possesses awareness towards the environment. This relationship
between environment and human beings has in topical years improved into a selfdetermining branch of scientific inquisition, which stands by the name environmental
science. Sometimes, it is seen as a demonstration of a struggle between the two.
There have also been times when this connection took the form of respectable
coexistence. While the olden times of humanity of the last quite a lot of millennia is
well-known for its regular and/or dependable progress in diverse walks of life, the
mysteries of nature have often proved to be quite enticing to be resolved by human
thinking and actions. The objective of the paper is to focus on the environmental
pollution and laws regarding the same in India.
The case study of various past cases related to the topic will be referred in this project.
Articles and laws related to the topic and also if there is an amendment in the previous
law will also be taken into consideration.
INTRODUCTION
Environmental pollution is a well-liked issue post World War II. It can be supposed that
pollution is the effect of our social progress through the means of science. Pollution is
the product of our scientific achievements being applied for the improvement of human
facilities.
Science is the root of development of the human society and it also the cause which
has brought up many problems in the human society. One such havoc caused by the
social development of the human society is pollution. Environmental pollution has
become the biggest issue to the human race on this planet. Pollution is adding
contamination to our environment; our environment includes earth, water, air, plants
and animals.
ENVIRONMENTAL POLICIES & LAWS IN INDIA
A policy is a embark principle for planners and administrators. It lays down the general
objectives and its completing is left to the administrators. Policy formulation becomes
necessary because guiding principle is an apparatus of conversion of a given
environment into a preferred environment. It is through a policy that we can in
particular identify the problems; fix precedence to form unusual approaches and
solutions; make a preference among alternatives on the basis of all-inclusive scrutiny
if benefits and costs; eloquent the selection in terms of goals spoken; provide institute
recruits and resources to ensure effective accomplishment and to lay down a
machinery for unremitting monitoring of the policy.
In India, concentration has been paid right from the antique times to the nearby age in
the field of environmental protection and improvement. Traditionally speaking, the laws
204
involving to environment upgrading were uncomplicated but quite successful and

people were aware of the necessity of environmental protection. The nearby day
legislations in India are the conclusion of `the growing industrialization and populace
pressure. There are avowed to be over 500 Central and State statues which have at
smallest amount some apprehension with environmental protection, either directly or
indirectly. Besides, the common law and Constitutional remedies related to
environmental conservation are also there603.
Policy and Laws in Ancient India
In ancient India, protection and conserving of environment was the spirit of Vedic
culture. The conservation of environment shaped zealous article of faith, engraved in
the daily lives of the people and also mentioned in myth folklore, art, culture and
religion. In Hindu theology forests, trees and wildlife guard held a place of special
reverence. Cutting green trees was barred and punishment was prearranged for such
acts604. Thus, earliest India had a philosophy of environmental management chiefly
enshrined in old injunctions as they were limited in numerous scriptures and smritis.
The environmental beliefs of nature conservation were not only pertinent to common
man but the rulers and kings were also hurdled by them605.
Policy and Laws in Medieval India
For the period of the Mughal period, environment conservation did not accept much
attention. On the other hand, the forests were managed with the help of a multifaceted
series of rules and policy wicker around the socio-cultural features as well as the
economic activities of local communities. Additionally, the religious policy of Akbar
based on the belief of complete tolerance also reflects apprehension for protection of
birds and animals in so much so as happenings were taken throughout his province
to end their gratuitous killing. During medieval era, a new set of legal principles were
introduced, governed by the holy Koran which declares that we made from water every
living things606.
Policy and Laws in British India
With the institution of British Colonial rule, numerous changes were brought in the
thoroughly leaning aboriginal system. The British rule saw the commencement of
organized forest management. It was the forestry, wildlife and water pollution which
fascinated their attention in particular. In the meadow of forest protection, the
enactment of the Forest Act, 1865 was the foremost step by the side of asserting the
State monopoly right over the forests. The customary rights of rural communities to
administer forests were condensed by the Act.
For the duration of this period, the concern for protection and management of water
resources in India came throughout the first major development in the form of Bengal
Regulation VI of 1819, which did not declare protection of water environment from
603
Divan S. and Rosencranz A., Environmental law and policy in India, cases, materials and status,
2nd edition, New York, Oxford University Press (2001)
604 Indias Forests, Ministry of Environment and Forests, Government of India (2009)
605Vipul Kharbanda, Statutory Regime Regarding Environment Protection in India, Environmental and
Forest Law Times,1(1) (2011) (Jour.)
606 Shyam Divan, Armin Rosencranz, Environmental law and policy in India: Cases, Materials, and
Statutes, Oxford University Press.
205
pollution but invested the Government with autonomy over water resources. In 1860,
for the unparalleled, an effort was ended to organize particularly water and
atmospheric pollution through criminal sanctions under the Indian Penal Code, 1860.
As alongside prohibitive supplies under the IPC, 1860, the Easement Act of 1882
permitted a prescription right to contaminate the water but it was not an complete right
(one was not to unreasonably pollute or cause material injury to other).
Consequently, the environmental policy during the British rule was not intended at at
the preservation of nature but rather was bound for at the misuse and exploitation of
common property with a chief object of earning revenue. Neither were there efficient
laws for the protection of environment. Additionally, these laws had a slender scope
and derisory territorial reach607.
Policy and Laws after Independence
The India Constitution, as adopted in 1950, did not pact with the focus of environment
or prevention and control of pollution as such (until 1976 Amendment). The original
text of the Constitution under Article 372(1) has included the prior existing laws into
the present legal system and provides that in spite of the repeal by this Constitution of
enactments referred to in Article 395, but subject matter to other provisions of the
Constitution, all laws in force instantly before the commencement of the Constitution
shall remain in force until altered, repealed or amended by a competent legislature or
other competent authority. Accordingly, even after five decades of independence, the
superfluity of such laws is still in process without any momentous charge in them. The
post-independence era, until 1970, did not see much legislative activity in the filed of
environmental protection. Two early post-independence laws focused on water
pollution. The Factories Act of 1948 mandatorily all factories to make useful
arrangements for waste disposal and empowered State Governments to frame rules
executing this directive.
Under the River Boards Act of 1956, river boards recognized are empowered to avoid
water pollution of inter-state rivers. To avert brutality to animals, the Prevention of
Cruelty of Animals Act was framed in 1960. Some States took initiative in the field of
environmental protection, viz., Orissa River Pollution Prevention Act, 1953, and,
Maharashtra Prevention of Water Pollution Act, 1969608.
ENVIRONMENT LEGISLATIONS IN INDIA
The National Green Tribunal Act, 2000
The court has been located in Bhopal and five benches extend around the country
with the solitary mission to speedily dispose of environmental protection cases. The
three circuit benches are set up in Kolkata, Chennai, and Pune. The court has been
elected to be head by a sitting or retired Supreme Court judge or the Chief Justice of
a High Court. Its first aim will be to dispose off 5,600 cases taken from all the High
Courts to of the country. Damages can be claimed in cases of death, disability,
damage to property and loss of business or employment. Though no limit has been
set for the compensation, the tribunal may recommend relief and compensation to the
victims as it may think fit. The court must set out the case in six months. To alleviate
the disposal of cases the courts are not vault by the Code of Civil Procedure but they
607
608
Dharmendra S. Sengar, Environmental Law, Princet on Hall of India Private Limited.

ELDF and WWF India 2009, Protection of Forests in India -The Godavarman Story, New Delhi
206
are bound by the principles of natural justice. The Central Government means the
working of the courts. The Act makes it obvious that it will call on cases which have an
unrequited extensive question of law about the environment. The Act as well clearly
states that it would only persuade cases that shape the broader community at great
but they might condensation from a protest by an individual. No civil court in India can
divert cases which drop under the jurisdiction of the Green Tribunal609.
The Wildlife (Protection) Act, 1972
The Act was passed on 9th September, 1972. Amendments to the Act were introduced
in 1976, 1982, 1991 and 1993. The last amendment was brought in 2003 which
imposed penalties much more severe The Act protects wild animals, birds and plants
by barring hunting, harvesting of species, poaching, illegal exchange in wildlife and
derivatives and protection of endangered flora and fauna in protected areas610.
Water (Prevention and Control of Pollution) Act, 1974 and Rules 1975
The Water (Prevention and Control of Pollution) Act was approved in 1975. It was the
first legislation which analytically dealt with issues of water pollution in India. It is
extroverted and extends to streams, inland waters, subterranean waters and sea or
tidal waters. The Act works through a system of command and control by establishing
State Pollution Control Boards which lays down standards of discharge and exceeding
such standards are fulfilled with penalties which include fines and imprisonment. The
Act brings in permit systems which allows a person who agrees to the standards set
by the State Boards to establish effluent discharge and treatment systems in the
industry611.
Air (Prevention and Control of Pollution) Act, 1981
The Air (Prevention and Control of Pollution) Act, 1981 was enacted to by the central
government in extend to the Stockholm Declaration in 1972. The Act is applicable on
the water (Prevention and Control of Pollution) Act, 1974 where the Act has been
approved by the central Government but the executive functions are carried out by the
State Pollution Control Boards (SPCB). The Central Pollution Control Board (CPCB)
and State Pollution Control Boards (SPCB)-The Act constitutes CPCB and SPCB on
the same lines of the Water Act. The jurisdictions of the State Boards are common
under
both
the
Acts.
The
Air
Act
cater
s for State boards even in states which do not have pollution control boards
established under the Water Act612.
The Environment (Protection) Act, 1986
The point behind creating the Act was to enforce to the Article 48 (A) of the Constitution
of
India which states the protection and improvement of environment and safeguarding
of forests and wild life The Act also empowered Article 51 (A) (g) of the Constitution
of India which states that every citizen of India has a Fundamental Duty to conserve,
protect and improve the natural environment counting forests, lakes, rivers and wild
609
www/epa.tas.gov.au/policy/empca/last retrieved on february 02, 2015, 04:00 p.m.
610
www.ipcb.state.il.us/SLR/StatutesLegislationandRegulations.asp/last retreived on february 02,

2015, 03:00 p.m.
611 www.envfor.nic.in/legis/noise/noise.html/last retrieved on February 09,2015, 9:30 a.m.
612 www.advocatekhoj.com/library/bareacts/last retrieved on february 09, 2015, 09:35 a.m.
207
life, and to have compassion for living creatures. The Act gave powers to the Ministry
of Environment and Forest (MoEF) to establish standards for environmental quality;
emissions or release environmental pollutants from various sources, device,
measures for management of hazardous substances, create rules for locating
industry, obligatory reporting of environment pollution by industry and provide for
mending of cost of clean-up from the polluter. The Act establishes an Authority to
implement powers to fulfill the provisions of the Act and gives the Government of India
to lay down directions on which the appointed Authority must take steps to execute
the provisions in the Act. The MoEF is accountable for framing rules to apply the EPA
and has adopted industry explicit standards for effluent discharge and emissions for
designated industries.
The Act pens down rules for giving of information to authorities and agencies in certain
cases. In cases where discharge of an environmental pollutant occurs in surplus of the
approved standards, or there is an nervousness of this occurring outstanding to an
accident or some other unanticipated event, then the person who is in charge at that
particular time is accountable for preventing environmental pollution due to the said
discharge. It is the accountability of the person to close the happening of the discharge
to the CPCB/SPCB (Central/State Pollution Control Board), and provide all likely aid
to the regulatory agencies to answer the ill-effects of the discharge613.
The Biological Diversity Act, 2002
The Act completes its duties under the Convention of Biological Diversity; harness
Indias natural resources in a sustainable, conserve natural resources, make possible
admittance to the resources in a just manner, giving out reimbursement arising out of
such access and use, make use of of natural resources for profitable and research
purposes of bio-survey and bio-utilisation , and relocate of research results and
application for intellectual property rights (IPRs) relating to Indian biological resources.
This Act was approved by the Lok Sabha (the lower house of Parliament) on
December 2, 2002 and by Rajya Sabha (the upper house of Parliament) on December
11, 2002. India ratified the Convention of Biological Diversity in February, 1994. The
main reason behind the Act was to protect 91,000 species of animals and 45,500
species of plants in its ten bio-geographic regions, 6,500 native plants are still used
outstandingly in native healthcare systems, thousands of locally-adapted crop
varieties, grown customarily since ancient times and 140 native breeds of farm
livestock, persist to flourish in its diversified farming systems614.
The Forest (Conservation) Act, 1980
This Act circumscribes the powers of the state regarding o the de-reservation of forests
and make use of of forestland for non-forest purposes. Such other matters as the
central government thinks necessary or means for the principle of securing the
successful implementation of the requirements of this act. The central government
may, if it considers it required or expedient so to do for the purpose of this act, by
order, published in the Official Gazette, compose an authority or authorities by such
name or names as may be particular in the order for the reason of exercising and
functioning such of the powers and functions (including the power to issue directions
under section 5) of the central rule under this act and for taking measures with respect
613
bombayhighcourt.nic.in/libweb/acts/listofmahacts.htm/last retrieved on February 10, 2015, 09:34

a.m.
614 Infra 623
208
to such of the matters referred to in sub-section (2) as may be described in the order
and subject to the command and control of the central government and the provisions
of such order, such authority or authorities may exercise or perform the functions or
get the measures so mentioned in the order as if such authority or authorities had been
empowered by this Act in the direction of exercise those powers or perform those
functions or take such measures615.
The National Environment Appellate Authority Act, 1997
Establishing a national environment appellate authority to take notice of appeals which
h are related to restriction of areas in which any industry operates or process or class
of industries, operations or processes could not carry out or would be allowed to carry
out subject to certain safeguards under the environment (Protection)Act, 1986 616.
Factories Act, 1948 and its Amendment in 1987
The Act has a inclusive list of 29 categories of industries linking hazardous processes,
which are clear as a process or activity where but for special care is taken, raw
materials used therein or the intermediary or the finished products, by-products,
wastes or effluents would cause material impairment to health of the persons engaged.
ii. Result in the pollution of the general environment617.
Public Liability Insurance Act (PLIA), 1991
The PLIA was amended in 1992, and the central government was certified to establish
the environmental relief fund, in order to make relief payments618.
The Noise Pollution (Regulation and Control) (Amendment) Rules, 2002
These rules lays down such terms and conditions as are required to trim down noise
pollution, sanction use of loud speakers or public address systems during night hours
(between 10:00 p.m. to 12:00 midnight) on or throughout any cultural or religious
festive occasion619.
LANDMARK CASES RELATED TO ENVIRONMENTAL POLLIUTION
M.C. Mehta v. Union of India620 (Oleum Gas case)
In the above mentioned case, the petitioner filed a suit in the Supreme Court of India
as a writ petition where a fertilizer manufacturing plant which operates in a densely
populated part of New Delhi, had a incident of leaking of oleum gas. This incident led
to the death of a person and severely injured others and consequently this plant was
closed. This Scenario created unemployment amongst 1000 of people. The Supreme
Court held that any industry engaged in a hazardous or intrinsically dangerous activity
owes an absolute and non-delegable duty to the immediate community to ensure no
615
Infra 622
www.orissahighcourt.nic.in/tender06042012.pdf/last retrieved on February3, 2015, 08:00 p.m.
617 Infra 622
618 www.indiaenvironmentportal.org.in/content/44270/bare-acts-no-action/last retried on February
23,2015, 09:00 p.m.
619 Infra 625
620 AIR 1987 SC 965
616
209
harm is done to them. This also applies if the activity undertaken in the facility could
generate a health or safety exposure not only for the workers but also for those people
who live in the adjoining areas. The enterprise will still be answerable even if it has
taken every probable precaution and no negligence can be figured to it. The Court
also observed that the superior physical and economic organization of the enterprise,
the heftier would be the damages. The Court in its award tailored the rule in Rylands
v. Fletcher621 and the way it would be functional to the Indian cases. Enterprises could
not get away with proving the fact that they could not predict the injury that was caused
and that the activity on their land and premise was not an unnatural use to commence
with.
Narmada Bachao Andolan v. Union of India622
The Narmada Bachao Andolan had filed a writ petition with the Supreme Court, with
an aim to stop the construction work on the dam. The Supreme Court first ruled in
favor of the petitioners and stayed the construction till the complete rehabilitation work
was done as ordered. After the span of seven years, the Supreme Court approved the
construction of the dam but also introduced machinery which ensured the constant
rehabilitation of the affected population and also marked the issue of raising the height
of the dam through the Grievance Redressal Authorities (GRA) which was established
in every state which had a say in the project. The final words of the courts order states
that every shall be made to see that the project is completed seeing that as soon as
possible.
Rural Litigations and Entitlement Kendra v. State of Uttar Pradesh623
The Supreme Court aimed at the closure of mining operations through blasting in the
Doon Valley. It said that closure would cause adversity to the affected parties, but it
was a price that had to be paid for shielding and safeguarding the rights of the people
to live in strong environment with least disturbance of ecological balance. It further
directed the affected areas to be domesticated and a forestation and soil conservation
programmes to be initiated so as to offer employment opportunities to the affected
workers.
Enviro-legal Action v. Union of India624
The Supreme Court held that the head of several units/agencies should be made
personally accountable for any lapse and/or negligence on the part of their
units/agencies. The idea of an environmental audit by specialist bodies created on a
everlasting basis with authority to inspect, check and take indispensable action not
only against erring industries but also against erring officers may be considered. The
ultimate idea is to join together and balance the fear for environment with the need for
industrialization and technological progress. Greater industry fulfillment with
environmental law, revelation of date on waste generation, implementation of clean
technology for pollution prevention, etc., is some of the significant gains of audit.
621
[1868] LR 3 HL 330
2000 (10) SCC 664
623 A.I.R.1985 S.C.652
624 (AIR 1996 SC 1446)
622
210
M.C. Mehta v. Union of India625(Ganga Pollution Case)
The Supreme Court in this case held that the Nagar Mahapalika of Kanpur has to
abide to the foremost responsibilities for the pollution of the river Ganga near Kanpur
city. Court observed that in common law, the municipal corporation can be reserved
by a sanction in an action brought by a riparian owner who has suffered on account of
the pollution of water in a river caused by the corporation. The petitioner in the present
case is not a riparian owner, but he is a person concerned in protection the lives of
people who make use of the water flowing in the river Ganga. The nuisance caused
by the pollution of Ganga is a Public nuisance and it would not be rational to expect
any particular person to take proceedings to bring to an end, distinct from the
community at large. The petition has been entertained as a public interest litigation.
The petitioner is entitled to move the court in turn to enforce the statutory provisions
which inflict duties on the municipal authorities and the constitution of a board under
the water Act. The court directed the city municipal authorities to fulfill statutory duties
which [U.P. Municipalities Act] includes: Elimination of dairies or the wastes from the
dairies; augment of the capacity of the sewers in labour colonies; provisions of public
latrines, etc.; stricter enforcement to prevent the insertion of dead bodies in Ganga;
and acquiescence of sewer proposals to the State within six months etc.
CONCLUSION
India - the land of mysticism and philosophy-is also the land of rivers as it harbors 14
large, 44 medium, and 55 minor rivers. From the beginning, the Ganges in the north
to the Cauvery in the south, most spiritual Hindu pilgrims believe the waterways to be
sacred and pious since the religious texts grasp that Ganges purifies the bather of
sins. Though, Indias rivers are gradually becoming the dumping zones for domestic,
industrial, and agricultural wastes. Polluted environment endangers the human race
by intimidating its endurance on planet earth. Borders of any nation cannot bound
these environmental problems to a particular country and region, but its impact is
global. This significant environmental degradation has caused a worldwide
apprehension about the preservation and protection of the earths environment.
Hence, efforts are being made for inducting environmental consciousness or
awareness among the masses. It is education which can make the human being
conscious and well-informed about environment and environmental harm.Also, the
government policies and regulations which needs to be enforced as well followed in
the most effective and efficient manner for a pollution free environment.
625
(AIR1988 SC1115)
211
CHALLENGES OF INDIAN PATENT REGIME:

ANALYSIS OF PHARMACEUTICAL INDUSTRY
SIDDHARTH BADKUL AND PRASHANT KUMAR
UNIVERSITY OF PETROLEUM & ENERGY STUDIES, DEHRADUN
ABSTRACT
Indian pharmaceuticals industry grew rapidly in the period 1970 to 1995 in a protective
regime manifested by process patenting (rather than product patenting) and a strict
price regulation on a large number of drugs. This enabled the domestic industry to
come up rapidly and attain considerable technical competence.
Indian patent regime could be divided into two major humps one from 1970 to 1995
period governed by Indian Patent Act, 1970 under India only allowed patents on
processes, called process patents, rather than on the products of the processes
themselves, called product patents. Secondly, period beyond 1995 which governed by
the same Act of 1970 but in conformity with the provisions of TRIPS, 1994 which set
out minimum standards of intellectual property protection that must be met by each
WTO Member country.
This paper deals with the impact of new patent regime on the pharmaceutical industry
of India and analyses new patent regime with the help of various cases and reports.
The paper is aimed at elucidating various drawbacks and criticism of the patent regime
post 2005 as well as the judicial approach to tackle with the emerging issues.
The paper begins with the introductory note on the patent regime in India followed by
the history and development Indian patent regime. The second part of the paper
examines the challenges posed to the patent regime in India via-a-vis pharmaceutical
industry owing to the inherent ambiguities prevailing in the Indian Patent Act, 1970.
The third part deals with the criticisms to the patent administration and management,
therein elucidating various aspects such as unaffordability, inability to meet emergency
situation, impact on small companies and public interest.
KEYWORDS: - Patent, Process Patent, Product patent, Indian Patent Act, 1970 and
TRIPS
INTRODUCTION
"Before then any man might instantly use what another had invented; so that the
inventor had no special advantage from his own invention. The patent system changed
this; secured to the inventor, for a limited time, the exclusive use of his invention, and
thereby added fuel to the fire of genius, in the discovery and production of new and
useful things.
-Abraham Lincoln, Second Lecture on Discoveries and Inventions (1859)
212
Patent laws recognize intellectual property rights relating to inventions.626 Patents

allow inventors to exclusively use their inventions for a limited period of time in
exchange for their disclosure of the invention to the public.627 This system confers two
advantages to society. First, public disclosures promote progress by ensuring that
knowledge of inventions is acquired by others, who can then use this knowledge to
make further improvements. Second, because developing new inventions requires
extensive investment and risk, the promise of exclusive rights serves as an incentive
to inventors to undertake their research and development efforts.628 Generally, for a
new drug molecule, the cost of research and development is about $1 billion.629
Without a guarantee of exclusivity, innovative drug companies would be unable to
generate enough revenue to overcome these high costs.630 Overall, the loss to society
from the monopoly power granted to the inventor is significantly out- weighed by the
potential gains society receives from the acceleration of the technological process.631
Distinct kinds of patents available to pharmaceutical companies are product patents,
composition patents, and process patents.632 The product patent refers to the chemical
structure defining a chemical compound;633 this typically is the end product consumed
by the consumer. In pharmaceuticals, the product patent is the most desirable patent
because it grants protection regardless of the method used to produce the compound
or the intended use of the compound.634 Composition patents are similar to product
patents in that they provide protection for a formulation or mixture of chemicals.635 One
difference between the two types of patents is that mere manufacture of the
ingredients is insufficient for infringement the product patent; the preparation or the
sale of the entire formulation must also occur.636
HISTORY OF PATENT REGIME IN INDIA VIA-A-VIS PHARMCEUTICAL
INDUSTRY
The development of patent regime in India owes it origin to British rule637 and can be
summarized as follows:
626
Indrajit Basu, A Brave New World Indian Drug Industry, W ASH. TIMES, Jan. 11, 2005 available at
http://www.upi.com/Business_News/2005/01/11/A-brave-new-world-Indian-drugindustry/91311105466413/.
627 Sir Purshotamdas Thakurdas, India: Patents in Global Perspective Indian Institute of Banking and
Finance, Memorial Lecture in Mumbai, (Jan. 7, 2005), available at
http://communications.yale.edu/president/speeches/2005/01/06/patents-global-perspective-sirpurshotamdas-thakurdas-memorial-lecture
628 Id.
629 Uttam Gupta, Patent Ordinance - Innovator Still to Get Desired Comfort, THE HINDU BUS. LINE, Mar.
15, 2005 available at http://www.thehindubusinessline.com/todays-paper/tp-opinion/patent-ordinanceinnovator-still-to-get-desired-comfort/article2171526.ece
630 Id.
631 Sierra Dean, India's Controversial New Patent Regime: The End of Affordable Genetics?, 40INT'L
LAW. 725, 725-736 (2006).
632 Mossinghoff J. Gerald, Research-Based Pharmaceutical Companies: The Need for Improved
Patent Protection Worldwide, 2 J. OF L. & TECH. 307, 311 (1987).
633 Theresa Beeby Lewis, Patent Protection for the Pharmaceutical Industry: A Survey of the Patent
Laws of Various Countries, [30(4)] THE INT'L LAWYER 835, 835-865 (1996).
634 Id.
635 Id.
636 Id.
637 Controller General of Patents, Designs and Trade Marks, History of Indian Patent System,
available at http://ipindia.nic.in/ipr/patent/history.htm (hereinafter CGPDTM).
213
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
Act VI of 1856 on Protection of Inventions based on British Patent Law of

1852 which provided exclusive privileges to inventors for 14 years;
The Patent & Designs Protection Act, 1872;
The Protection of Inventions Act, 1883;
The Inventions & Designs Act, 1888;
The Indian & Designs Act, 1911;
The Patents Act, 1970;638
The Patents (Amendment) Act, 1999;639
The Patents (Amendment) Act, 2002640 and
The Patents (Amendment) Act, 2005.641
The Patent Act 1970, provided for process patents for pharmaceuticals and agrochemical products and for a short period i.e. 7 years for pharmaceutical, agro chemical
and food products and 16 years for other categories. This empowered the
development of a strong indigenous generic drug industry, which manufactured the
same drugs as the MNCs at considerably low costs. One of the essential aspects that
contributed to the development of Indian pharmaceutical industry was the fact that
The Patent Act 1970 did not accommodate monopoly rights in the area of drugs and
agro-chemicals; as just process patent and not product patent were acknowledged.
Along these lines, by permitting only process patent India today witnesses a flourishing
generic pharmaceutical industry which is competent enough to export generic drugs
to certain developed countries.642
Between 1970 and 1994, India only allowed patents on processes, called process
patents, rather than on the products of the processes themselves, called product
patents.643 This was seen as a compromise between India's desire to encourage
innovation and its desire to allow access to foreign pharmaceuticals that might
otherwise be unavailable.644 Under the old regime, the period of patent protection was
only seven years.645 Therefore, pharmaceutical companies could manufacture cheap
copycat versions of patented drugs and sell the medicines at a fraction of the price, as
long as a modified process was used.646 A huge Indian generic drug industry was thus
built on reverse-engineering brand-name drugs through slightly modified processes.647
Every major drug in the world ended up in at least ten brands in India. 648 It is for this
reason that Indian drugs often cost 7 to 10 percent of what they do in the United
States.649
638
See, The Patents Act, No. 39 of 1970 available at http:// indiacode.nic.in/.

See, The Patents (Amendment) Act, No. 17 1999 available at http:// indiacode.nic.in/.
640 See, The Patents (Amendment) Act, No. 38 2002 available at http:// indiacode.nic.in/.
641 See, The Patents (Amendment) Act, No. 15 2005 available at http:// indiacode.nic.in/.
642 CGPDTM, supra note 12.
643 Int'l Ctr. for Trade & Sustainable Dev., Indian TRIPS-Compliance Legislation Under
Fire, [9(1)]BRIDGES W KLY. TRADE NEWS DIG. 3, 3-4 (2005) (hereinafter ICTSD).
644 Id.
645 Id.
646 Ranjit Devraj, India: Lesser-Than-Evil Patent Law Pleases Drug Firms, INTER PRESS SERVICE NEWS
AGENCY, Mar. 24, 2005 available at http://www.ipsnews.net/2005/03/india-lesser-than-evil-patent-lawpleases-drug-firms/.
647 ICTSD, supra note 643.
648 Indrajit, supra note 626.
649 Sierra, supra note 631.
639
214
1. THE TRIPS AGREEMENT OF 1994

India's patent protection regime changed in 1994 when India signed the Trade Related
Intellectual Property (TRIPS) agreement of the WTO.650 TRIPS, which came into effect
on January 1, 1995, is considered to be "the most comprehensive multilateral
agreement on intellectual property" to date.651 TRIPS set out minimum standards of
intellectual property protection that must be met by each WTO Member country. 652 In
addition, TRIPS contains a differentiated timetable of compliance for three different
classes of nations: developed, developing, and least developed. Developed countries
were required to immediately comply with the agreement.653 Developing countries,
such as India, were given ten years, until January 1, 2005, to comply. 654 The least
developed countries, such as those in Africa, were given until 20 16.655
TRIPS essentially illegalised the manufacturing generic copies of patented drugs by
domestic companies. This is because; inventions in all fields of technology may be
patented as long as they meet the tests of novelty, inventiveness, and industrial
applicability.656
The initial product of India's efforts to comply with TRIPS was an Ordinance that
amended India's patent regime to include product patents and was passed on
December 26, 2004, just days before the TRIPS January 1, 2005, deadline for
compliance. Critics believed this strict regime under the Ordinance would lead to more
expensive essential drugs, thereby hurting those needing access to cheap medicines
while also hurting India's pharmaceutical industry, which relies heavily on generic drug
production.
However, The Patent (Amendment) Act, 2005 which effectuated the TRIPS regime in
India remedied the effect of the Ordinance of 2004 by allowing Indian companies
already producing these drugs to continue to produce them even after the drugs are
patented, as long as a royalty is paid to the company owning the patent. 657 The
intention of the legislature was to provide a level playing field for domestic companies
who already have made substantial investments in the products.658 Specifically, the
provision explains that the patentee's rights begin from the date of the grant of the
patent, rather than from the date of application.659 The patentee is only entitled to
receive "reasonable royalties" from those companies that have made significant
650
Indrajit, supra note 626.

World Trade Organization, Overview: the TRIPS Agreement available at
https://www.wto.org/english/tratop_e/trips_e/intel2_e.htm
652 Id.
653 Id.
654 Thakurdas, supra note 627.
655 Id.
656 Agreement on Trade-Related Aspects of Intellectual Property Rights, art. 27.1., Apr. 15, 1994,
1869 UNTS 299, 33 I.L.M. 1197
657 Amit Sen Gupta, National Working Group on Patent Laws, Changes in New Patents Bill (Mar. 22,
2005), at http://www.cptech.Org/ip/health/c/india/gupta0322
658 Press Release, Government of India, Enough Safeguards in Patents Act to Prevent Price Rise Domestic Pharma Industry Interests Fully Protected: Kamal Nath (Apr. 4, 2005), available at
http://pib.nic.in/release/release.aspPrelid=8345.
659 See, The Patents (Amendment) Act, No. 15 2005, 10(c), available at http:// indiacode.nic.in/
(hereinafter Patent Act).
651
215
investments and have been producing and marketing the drug prior to January 1,
2005, and that continue to manufacture the drug on the date of the patent grant. 660
2. CHALLENGES TO INDIAN PATENT REGEIM WITH REFERENCE TO
PHARMACEUTICAL INDUSTRY
2.1. TRANSITIONAL ARRANGEMENT: THE MAIL BOX PROVISION
Under TRIPS, countries that did not have a product patent regime in place as on
January 1, 1995, had to provide for a mailbox. Mailbox was principally a mechanism
for accepting patent applications till a product patent regime was actually
implemented. Specialists expected that most of such patent requests are for the
slightly modified form of the already known patented medicines. Upon opening the
mailbox the Patent Office encountered that there were approximately 9,000 patent
pleas in it; a majority of which (approximately 7,500) belonged to non-Indian entities.
Over the past decade only a few hundred New Chemical Entities (NCEs) were
identified, but approximately 9,000 patent applications for medicines are in India's
mailbox. This evidently demonstrates how pharmaceutical firms can have numerous
patents for the same molecule.661
2.2. INDUSTRIAL CONCERN
Prior to the Patent Act, there were widespread concerns that the implementation of
product patents in India would result in many patents being granted on frivolous
grounds.662 There were also concerns that this would lead to "evergreening" of
patents.663 Evergreening refers to renewals of expired patents by pharmaceutical
companies by citing a new use for the same drug, thereby extending the patent
monopoly.664 Evergreening, thus, delays the entrance of generic drugs into the
market.665
2.3. PATENT VALIDITY
It is also interesting to note that grant of Patent under Indian law does not tantamount
to validity of the said patent. As per the provision of section 13(4) of the Patents act,
the grant of patents by the patent authority does not confirm the validity of a patent
and as such no liabilities are incurred by the central government or any agencies
thereof. One of the reasons why the Drug Controller under the Drugs and Cosmetics
Act is not charged with duties to look into the validity of patent before granting
marketing approvals is based on this section, since if the Drug Controller is charged
contrarily, it leads to presumption that a patenting implies validity, something which is
specifically denied vide sec 13(4) of the Patent Act. It is also not clear why Drug
Controller should also look at validity of patents when other regulators of this nature
do not look into such issues.666
660
Id.
ICTSD, supra note 643.
662 Patent Act, supra note 657.
663 Id.
665 Id.
666 Krishna Swaroop Dhar Dwivedi, Souvik Bhattacharjya & Nitya Nanda, Protection of Patents in
India: Issues and Challenges, TERI (Mar. 2013) available at
http://www.teriin.org/div/briefing_paper_patents.pdf.
661
216
3. CRITICIM OF EXISTING PATENT REGIME

3.1. UNAFFORDABLE
Under the Patent Act, thousands of medicines that were granted patent protection in
other countries between 1995 and 2005, as well as medicines that will become patent
protected after January 1, 2005, will be considered for patent protection in India.667
While the Patent Act does not cover generic drugs prior to 1995, critics of the Patent
Act believe that generic production of pre-1995 versions of medicines is not enough
to satisfy the treatment needs of people in developing countries.668 They argue that all
new drugs required to replace old, ineffective drugs will be patented and thus become
unaffordable.669
However, analysts predict prices on patented breakthrough drugs in India could rise
to nearly U.S. levels, while prices on more common drugs should rise only
moderately.670 The Indian government has said it will step in if price increases are
excessive, but it remains to be seen how exactly that will be implemented.671
3.2. UNABLE TO MEET EMERGENCY SITUATION
Owing to the compulsory licensing procedure in the Patent Act is too complicated to
provide quick relief in the case of an epidemic.672 The Patent Act requires that, except
during national emergencies, generic manufacturers must wait three years after a
patent is granted before they can apply for a compulsory license to manufacture it,
which critics believe is too long.673
3.3. DETRIMENTAL TO THE INTEREST OF SMALL COMPANIES
Both competition law and patent law serve to the advantage of society. Despite the
fact that they may have all the earmarks of being at loggerheads, both work towards
achieving certain common objectives, as both are aimed at empowering innovation,
industry and competition. The role of patent in ensuring property rights is precious for
a competitive economy. Companies contend with one another to get patent rights.
Further, competition law recognizes that the making of some monopoly rights as
patents is important to accomplish a more noteworthy gain for the customer.674
However, critics argue that product patents will be detrimental to small generic drug
companies as they might be priced out of the drug market and disappear. 675 Mergers
667
Press Release, Health Gap Global Access Project, The Impact of India's Amended Patents Act on
Access to Affordable HIV Treatment (Feb. 2005), available at http://www.healthgap.org/pressreleases/O5/O20105_ HGAP_FS_INDIA_IPR.pdf.
668 Id.
670Saritha Rai, India Adopts Patent Law Covering Pharmaceuticals, N.Y. TIMES, Mar. 24, 2005
available at http://www.nytimes.com/2005/03/24/business/worldbusiness/india-adopts-patent-lawcovering-pharmaceuticals.html?_r=0.
671 Id.
673 Int'l Ctr. for Trade & Sustainable Dev., Indian Parliament Approves Controversial Patent Bill,
[9(10)] BRIDGES W KLY. TRADE NEWS DIG 1, 1-3 (2005).
674 FEROZ ALI KHADER, THE TOUCHSTONE EFFECT: THE IMPACT OF PRE-GRANT OPPOSITION ON
PATENTS 123 (2009 ed. Lexis Nexis Publication, Nagpur 2008).
675 Supra note 626.
217
are expected, with bigger pharmaceutical companies swallowing up smaller ones that
cannot afford to undertake research and development.676 The Act contains several
features designed to reduce potential hardship to public health and prevent drastic rise
of drug prices, it is uncertain at this point whether these provisions will succeed as
intended.677
3.4. COMPULSARY LICENSING AND BALANCE OF INTEREST?
Compulsory licensing under the Indian patent law is understood to be the most
comprehensive non voluntary licensing system globally.678 For instance this statement
applies especially to section 84, as the compulsory licence may be granted to prevent
abusive practices by patent holder or to prevent patent holder using patents to block
commercial exploitation of the patented invention. In India generic medicine
companies can themselves apply for pharmaceuticals compulsory licensing compared
to some other countries where only government can grant such licenses on its own
accord.679
The law in India allows any person to apply for a compulsory licence due to a failure
to work the patented invention in India in three (3) years from date of issuance of
patent. The burden of proof lies with the applicant for compulsory licensing who needs
to prove that non-working of the patented invention in the country or the unavailability
to the public of the patented invention at a reasonably affordable price. 680 However
failure to work means failure to set up manufacturing plant of big pharmaceutical
companies in India or failure to disclose patented invention fully or insufficient transfer
of knowledge of the technological part of the invention. The practice of compulsory
licensing may have its drawbacks, as it may be difficult for developing countries to
establish a local manufacturing facility capable of exploiting the invention, and foreign
companies may be reluctant to invest in developing countries, and further internal
procedures for granting compulsory licensing may not have been put in place.681
Elucidating another facet, it can be argued upon that granting a compulsory licence
involves several significant challenges. On one had compulsory licenses guarantee
the availability of the drug at reasonable and affordable price but generating a long
term benefits from such licences is still a distinct dream. It originates from the fact that
such licenses ought to strike a balance between the government (authorizer), licensee
(government, company), and IP proprietor (unwilling licensor). The discussion at
present spins around the issue that such grants discourages proprietors against
further innovative activity, and/or hurt the motivation of innovation leaders.682
676
Id.
Id.
678 J. KUANPOTH, PATENT RIGHTS IN PHARMACEUTICALS IN DEVELOPING COUNTRIES: MAJOR CHALLENGES
OR THE FUTURE 34 (Edward Elgar Publ'g UK, U.S. 2010).
679 Namrata Dawar & Pooja Kumari, Compulsory License for Pharmaceuticals in India: Balancing the
Conflict of Interest, 6 IJIPL 136, 136 (2013) (hereinafter Namrata).
680 KUANPOTH, supra note 678.
681 Id.
682 Namrata, supra note 679.
677
218
4. JUDICIAL APPROACH TO PATENT CHALLENGES

4.1. VALIDITY OF PATENT: HOFFMANN- LA ROCHE LTD. V. CIPLA
LTD.683
The Delhi High Court while dealing with a suit for grant of interim injunction to restrain
the defendant from manufacturing, offering for sale, selling and exporting the drug
Erlotinib, for which the plaintiff claimed to hold a patent jointly with Pfizer Products Inc.
considered the issue that whether there is a presumption of validity of a patent and
multiple challenges to validity of patent can be sustained at the pre-grant and postgrant stages.
The Court observed that, unlike Section 31 of the Trade Marks Act which raises a
prima facie presumption of validity, Section 13(4) of the Patents Act 1970 specifically
states that the investigations under Section 12 "shall not be deemed in any way to
warrant the validity of any patent." Section 48 of the Act also is in the form of a negative
right preventing third parties, not having the consent of the patent holder, from making,
selling or importing the said product or using the patented process for using or offering
for sell the product obtained directly by such process.684
The Court held that the Patent Act does not provide for multiple challenges to the
validity of a patent and that registration of patent does not ensure its resistance to
successive objections. A patent which sustained the pre-grant and post-grant
oppositions can be susceptible to challenges on the grounds unique in relation to the
ones raised at those stages.
Hence, different from US India does not identify a presumption of validity for issued
patents. Further illuminating the circumstance a leading treatise clarifies the question
of obviousness or inventiveness is to be judged from the perspective of a person
skilled in art in which obliges testimony of specialists. Such issues can be determined
only in opposition or revocation proceedings. However, numerous of such patents are
granted unopposed. The Act thus does not ensure the validity of the patent which can
eventually be decided by the Courts.685
4.2. ENIGMA OF INCREASED EFFICACY: NOVARTIS AG V. UNION OF
INDIA686
Under the amended Patent Act section 3(d) prohibited the patent of derivatives of
known substances, unless such derivatives display significantly enhanced efficacy.
This provision reflects a strong resentment towards ever-greening687 of
pharmaceutical patents. The section permits the patenting of a derivative that provides
an enhancement of the known efficacy of a known substance. However, it was unclear
as to the data and parameter required to establish efficacy. Owing to such ambiguity
the Indian patent office exercised a great deal of discretion. Novartis challenged the
683
159 (2009) DLT 243.

Id. 677.
685 P. NARAYANAN, PATENT LAW 7 (3rd ed. Eastern Law House 1998).
686 AIR 2013 SC 1311.
687 Ever greening refers to the attempts by the owners of the pharmaceutical patents to effectively
extend the terms of those patents by obtaining related patents on modified forms of same drug.
684
219
validity of Section 3(d)688 of Patent Act, 1970 in the High Court, which is intended to
prevent ever greening of existing drugs, after its patent plea for a new use for its cancer
drug, Gleevec was rejected by the Indian patents office in January last year. 689 The
provision provides that patents would not be granted for new forms, uses or minor
modifications of existing drugs except when they differ significantly with regard to
efficacy.
Novartis prayed to issue a writ of declaration that section 3(d) of the Patents Act, 1970
as substitute by the Patents (Amendment) Act, 2005 is non-compliant with the TRIPS
Agreement and/or is unconstitutional being vague, arbitrary and is inconsistent with
Article 14 of the Constitution of India and consequently to direct the Patent Office,
Chennai to allow the patent application filed by the petitioner. The Madras High Court
held that s. 3(d) is TRIPS compliant. It further held that as TRIPS mandates a
comprehensive dispute settlement mechanism, and then the court may not go into the
validity. The Court also held that the provision was inserted to check ever greening.
Supreme Court explained that, the test of efficacy in the context of section 3(d) would
be different, depending upon the result the product under consideration is desired or
intended to produce. In other words, the test of efficacy would depend upon the
function, utility or the purpose of the product under consideration.690 The Court further
opined that, therapeutic efficacy of a medicine must be judged strictly and narrowly,
thereby upholding the Indian patent office's rejection of the patent application filed by
Novartis.
4.3. COMPULSORY LICENSING: NATCO PHARMA LTD. V. BAYER
CORPORATION.
Natco Pharma Ltd. was permitted the right to produce and sell Bayer's Sorafenib
(Nexavar), a patented drug utilized for treating advanced kidney and liver cancer, at a
rate of 7% quarterly royalty of net deals. The licence was granted on the ground that
the reasonable requirements of patients who needed the drug were not being met, the
drug was not affordable, and the patent was not being worked in India.691
Bayer contended that a reasonably affordable price should be figured with reference
to general public as well as patentee. There is a class of individuals who can manage
the cost of the medication at its available cost, and it can't be the intention of the
legislature to bring down the cost of the drug for the individuals who are capable bear
the cost of it. Besides, the cost of the drug must be sufficient to support future
688
Patent Act, supra note 34 ( 3(d) the mere discovery of a new form of a known substance which
does not result in the enhancement of the known efficacy of that substance or the mere discovery of
any new property or new use for a known substance or of the mere use of a known process, machine
or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation.-For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form,
particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known
substance shall be considered to be the same substance, unless they differ significantly in properties
with regard to efficacy.).
689 Rupali Mukherjee, Novartis Case Raises Fresh Controversy, THE TIMES OF INDIA, Feb. 21, 2007
available at http://timesofindia.indiatimes.com/business/india-business/Novartis-case-raises-freshcontroversy/articleshow/1647455.cms.
690 NARAYANAN, supra note 685 180.
691 Swaraj Paul Barooah, India's Pharmaceutical Innovation Policy: Developing Strategies for
Developing Country Needs, [5(1)] TRADE, L. & DEV. 150, 150-155 (2013).
220
development of the drug.692 With regard to the working of the patent in India, it was
contended that worked means supplying the drug to the Indian market on a
commercial sale, and not necessarily manufacturing it in India.693 The IPAB observed
that the quid pro quo for patent protection is the patentee's obligation to make the
patented product available to the public at affordable prices.694
Bombay High Court acknowledged the decision of Controller and IPAB that the grant
of compulsory licence is based on the objective that patented article is made available
to the society in adequate numbers and at a reasonable price which are matters of
public interest.695 Later the SLP filed by Bayer was also rejected by the Supreme
Court.
The case is the first occurrence of compulsory licence in India and gives a protection
against lack of use of a patent or misuse of the patent holder's monopoly rights in order
to protect the public interest. It adjusts the balance between the competent interests
in the patent system. The provisions with respect to compulsory licensing endeavour
to secure that the drugs produced under the patent shall be accessible to public at the
lowest possible prices consistent with the patentees interest of deriving a reasonable
benefit from patent.696
Compulsory licensing has unlocked a doorway for the lifesaving medicines which are
patented in India but are placed beyond the reach to be manufactured by generic
companies at a fraction of price, in cases where such pharmaceuticals don't even
agree to provide license to the generic companies. Thus, Indian compulsory licensing
system is a clear evidence of the protection philosophy underlying its patent system.
CONCLUSION
The patent policy sought after by India empowered it to turn into an enormous
worldwide player in the generic drug market. The patent policy of 1970 significantly
changed India's condition. Indian industry has developed as a world pioneer in the
creation of a various bulk drugs. Indian industry has developed as a pioneer for the
production of bulk drugs like sulphamethoxazole and ethambutol. Indian production
represents about 50% of the world production. A few organizations like Ranbaxy, Dr.
Reddy's and Cipla can possibly turn into billion dollar organizations within the following
couple of years. Other than creating indigenous pharmaceuticals, India has developed
as a significant player in the worldwide international generic drugs market.
Notwithstanding, the empowering enactments made by India for legitimizing its
responsibilities made in consonance with different International treaties and
agreements, the results do not have the coveted conviction, as is clear from
inadequate and meaningful enforcement mechanisms crucial for successful
permeation of the quintessence saw in the statutory procurement. The Indian judiciary
692
RACHNA BAKHRU, INDIA GRANTS FIRST COMPULSORY LICENSE UNDER THE PATENT ACT 46-47
(Intellectual Prop. Magazine 2012), http://www.indiaiprights.com/new-pdfs/1324252546news.pdf.
693 Id.
694 Mansi Sood, Natco Pharma Ltd. V. Bayer Corporation and the Compulsory Licensing Regime in
India, [6(1)] NUJS L. REV. 99, 99-119 (2013).
695 Writ Petition No.1323 of 2013 in the High Court of Judicature at Bombay.
696 FEROZ ALIKHADER, THE LAW OF PATENTS: W ITH A SPECIAL FOCUS ON PHARMACEUTICALS IN INDIA 717
(2009 ed. LexisNexis Butterworths Wadhwa, Nagpur).
221
is additionally needed to reorient its working and at any rate show irregular legal
activism whilst tending to the issues identifying with excessive postpones in choosing
matters in Indian courts, particularly those under international treaties which likewise
have noteworthy bearing on domestic matters or else the multinational companies
and foreign investors will soon be losing enthusiasm for India and the new patent
regime may prove unfavourable to Indias economic prosperity.
India is governed by a Government which depend on more on populist politics for its
subsistence and this would guarantee that the paramount interests of the populace is
preserved without buckling too much under international considerations. Overall, India
stands to achieve more in the new patent regime.
222
AN ANALYSIS OF MONEY BILL IN INDIAN CONSTITUTION

SHUBHANG GOMASTA
TAMIL NADU NATIONAL LAW SCHOOL LAW
Abstract
The paper tries to focus on the less analyzed part of the constitution which is the
money bill and the financial bill. Various articles in our constitution are constituted to
define these article and scope. Article 110 of the Indian constitution describes about
the money bill and the article 117 defines the financial bill. The paper then focuses on
the various on the various steps of passing these types of various bills. Parliament is
considered to be a temple, a temple where people inspirations and desire gets fulfilled.
Government collect taxes from public and the common public and then uses it in
various ways to fulfill the need of them. These taxes and the money collected from the
public need to be spent with at most cautious and precautions. That s the reason the
fathers of our constitution decided to pass all the services with a full legal process and
validity. For this purpose the constitutional makers inserted the clause of BILL in the
constitution. A Bill is defined as: A bill is proposed legislation under consideration by
a legislature. A bill does not become law until it is passed by the legislature. There
many types of bill: Money bill, financial bill, Appropriation bill, ordinary bill etc. all these
types of bills are passed with different procedure and different houses enjoys different
powers governing them. The researcher in this project will try to find the answers to
these questions and give a clear insight regarding the procedures and the different
powers which both the houses hold. Not only the central government but also the state
government has the power to pass and implement bills. In further chapters the
researchers tries to understand the powers of the president and the governors
respectively in dealing with different types of bills. The special focus will be on money
bill and the procedure relating to money bill. A definition of a money bill in general
sense is a must to understand it concept. Bill is said to be a Money Bill if it only
contains provisions related to taxation, borrowing of money by the government,
expenditure from or receipt to the Consolidated Fund of India. There is also a concept
of finance bill which will be dealt in this research project. Basically a finance bill is said
to be a Money Bill if it only contains provisions related to taxation, borrowing of money
by the government, expenditure from or receipt to the Consolidated Fund of India. The
speaker role is also must for passing of a bill. Finally the paper will focus on the latest
pass The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Bill, 2016 bill and its controversy attached to it.
Chapter I Introduction
2.1 Definition of Ordinary Bill
The parliament is a deliberative as well as a legislative body. Its main function is multi
which are can be divided under various heads. One of the major work of the parliament
is to make laws In the today World of ever changing socio economic problem there is
a need of new laws therefore there is a lot of time of parliament is spend on passing
law the Bill and making laws. A Bill is a draft statute which becomes law after it is
passed by both the Houses of Parliament and assented to by the President. All
223
legislative proposals are brought before Parliament in the forms of Bills. An ordinary
Bill can be introduced in any of the houses of the parliament. The president
recommendation is also necessary while introducing an ordinary Bill. 697 An ordinary
Bill i.e. A Bill other than a Money or a Financial Bill, is numerated in Article 107 (1) of
the Indian Constitution. Article 107 ( 1) of the Indian constitution states that Subject to
the provisions of Articles 109 and 117 with respect to Money Bills and other financial
Bills, a Bill may originate in either House of Parliament.698 The Bill becomes an act
when it is passed by both the houses and is assented to by the president Article 111
(1) and 107(2) .Article 111 (1) and 107 (2) of the Indian constitution states that Subject
to the provisions of Article 108 and 109, a Bill shall not be deemed to have been
passed by the Houses of Parliament unless it has been agreed to by both Houses,
either without amendment or with such amendments only as are agreed to by both
Houses.699 It is common features of a dead lock may occur on any of the issues in a
ordinary Bill and to resolve that issue a joint session of the house may be called for to
resolve the dead lock. This is commonly known as joint session of the parliament. 700
2.2 The procedure for passing of a Bill is available in the rules of the procedure of
each house. The various steps in passing of a Bill are as follows:
(1) First Reading: The very first process starts with the introduction of a Bill in either
house of the Parliament be it the Lok Sabha and Rajya Sabha. A Bill can be introduced
by either by a Minister or by a private member. If the Bill is introduced by minister then
it is known as Government Bill and if it is by the private member then will called as
Private Member Bill. At this stage of the Bill the person which is necessary for a
member in charge of the Bill to ask for leave to introduce the Bill. In case of the leave
been granted by the house the Bill will be introduced. In case of the leave is not granted
or the motion for the leave is opposed, the Speaker may if it want allow brief statement
which is a short explanatory to be made by the member who has the motion and the
member in- charge who moved the motion and if the motion for leave is based on
the ground that the Bill initiates legislation outside the competence of the house then
the speaker may permit a full discussion. This is known as the first reading, after this
the question is put on the floor of the house for voting. 701
Publication in Gazette
After the successful completion of first stage and has been introduced in the house of
the parliament it is published in the Official Gazette. It is not necessary that a Bill need
to be introduced in the house for publishing in the Gazette. Even before the
introduction a Bill might with the permission of the speaker be published in the Gazette.
In such a cases leave to introduce the Bill in the House is not asked for and the Bill is
straight away introduced.702
Reference of Bill to Standing Committee
Once the Bill is introduced in the house and is published in the gazette the Presiding
Officer of the concerned house can refer the Bill to the standing committee for its
examination and the committee has to submit its report to the Parliament when the Bill
697
MP JAIN, Indian Constitutional law page no 64 7th Edition.

Article 107, Constitution of India, 1950.
699Article 109, Constitution of India, 1950.
700 Article 107 (2), Constitution of India,1950.
701 Parliament of India Various stage in passing of Money Bill www.parliamentofindia.nic.in visited on
5/03/2016 at 16.22 pm.
702 Ibid.
698
224
is referred to the standing committee they shall look into the General Principal and
then make report on that basis. The committee has the power to take expert opinion
or public opinion whichever it deems fit. After the committee fully satisfied it submits
its report to the House. 703
Second Reading
The second reading two parts is divided into 2 parts.
First stage;
The first stage consists of general discussion on the Bill where the basic underlying
the Bill is discussed. At this stage the house has many option to exercise with .It may
refer the Bill to the select/ joint committee of the house or to the joint committee of the
two houses or to circulate it for the purpose of electing opinion or otherwise
straightaway taking it into the consideration. If the Bill is referred to the select/ Joint
Committee, the Committee considers the Bill clause by clauses. With this there are
chances of amendments that may be moved with various clauses by the members of
the committee. After the report has been submitted to the house the again considers
the Bill as reported by the committee.
Second stage;
The second Stage of the Second reading consists of clause by clause consideration
of the Bill as introduced or as been reported by the select/joint committee. .After that
heavy discussion takes place on each clause of the Bill and amendments to the clause
is also moved at this stage of passing of the Bill then these amendment are then put
to vote before the house dispose off them, The amendment becomes a part of the Bill
if they are accepted by a majority of the members present and voting.
Third reading
In the third reading The Third Reading refers to the discussion on the motion that the
Bill or the Bill, as amended be passed. Almost similar procedure is followed in Rajya
Sabha in respect of Bills introduced in that House. After a Bill has been finally passed
by the Houses of Parliament, it is submitted to the President for his assent. After a Bill
has received the assent of the President, it becomes the law of the land.
Chapter II
2.1 Definition of Money Bill
If we look into the point of the parliamentary procedure, the constitution distinguishes
between a Money Bill, a financial Bill and an ordinary Bill 704. A Money Bill is defined in
Article 110 (1) of the Indian constitution. A Bill is recognized to be Money Bill if it
contains the provision dealing with six well defined matters defined in Article 110 (1)
(a)705 to Article 110 (1) (f)706 relating to a number of imposing, abolishing or regulating
703
Ibid.
MP JAIN Indian constitutional law Page No 70 7th Edition.
705 (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following matters, namely:
(a) the imposition, abolition, remission, alteration or regulation of any tax;
706(f) the receipt of Money on account of the Consolidated Fund of India or the public account of India
or the custody or issue of such Money or the audit of the accounts of the Union or of a State; or
704
225
a tax: regulating government borrowings; which includes from the consolidated and
contingency Fund of India and any matter incidental to any of the matters specified in
(the previous six) sub-clauses [Article 110(1)(g)]707 The expression incidental to
makes the definition of a Money Bill comprehensive. The power to decide whether a
Bill is a Money Bill or not is the mentioned in the Article 110 (3).708709
2.2 Features of a Money Bill (Including a Finance Bill)

There are many features of a Money Bill which distinguishes itself from a ordinary Bill
some of the following can be understood in a way that a Money Bill can be introduced
only in a Lok Sabha i.e the lower house of the Parliament . A Lok Sabha enjoys a
greater power in the matter of the financial issues after the Bill is passed in the Lok
Sabha it is send to the Rajya Sabha which is known as the upper house of the
parliament and after a discussion at the Rajya Sabha it is send back to the Lok Sabha
with or without recommendation. . One of the unique features of the Money Bill is that
the Rajya Sabha has a maximum of 14 days to return the Bill to the Lok Sabha .If the
Rajya Sabha fails to return the Money Bill with recommendations within 14 days
allowed to it, the Bill is deemed to have been passed by both the houses at the expiry
of that period.710if the Bill is returned to the Lok Sabha without recommendation a
message to that effect is reported to the secretary general to the Lok Sabha if it is in
session or published in the Bulletin for the information of the member of the Parliament,
if it is not in session711 The Bill shall then be presented to the president for his assent.
Lok Sabha has always the right and the power to either accept it or reject the
recommendation made by the Rajya Sabha relating to the Money Bill. If the Lok Sabha
accepts the any of the recommendation, the Bill is then deemed to have been passed
by the both the houses in the modified version and if the Lok Sabha rejects the
recommendation of Rajya Sabha the Bill is deemed to be passed by both the houses
in the form which is originally passed by Lok Sabha without any of the changes 712
Adding the above point the Lok Sabha is not bound to accept these changes it has full
power to accept or reject all or any of the recommendations. This power is mentioned
in the Article 109 of the Indian constitution.713Although the Rajya Sabha needs to be
707any
matter incidental to any of the matters specified in sub-clauses (a) to (f).

any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House
of the People thereon shall be final.
709 See also Indian Express meaning of Money Bill http://indianexpress.com/Article/explained/meaningMoney-Bill/#sthash.Fh3eG1gC.dpuf visited on 5/03/2016 at 16.45 pm.
710See generally Arthapedia .Finance Bill
http://www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act. Visited on 10/03/2015 at
19.16 P.M.
708If
711
Ibid.
See also MP JAIN Indian constitutional law PAGE NO: 71 7thedition.
713Special procedure in respect of Money Bills.(1) A Money Bill shall not be introduced in the
Council of States.
(2) After a Money Bill has been passed by the House of the People it shall be transmitted to the
Council of States for its recommendations and the Council of States shall within a period of fourteen
days from the date of its receipt of the Bill return the Bill to the House of the People with its
recommendations and the House of the People may thereupon either accept or reject all or any of the
recommendations of the Council of States.
(3) If the House of the People accepts any of the recommendations of the Council of States, the
Money Bill shall be deemed to have been passed by both Houses with the amendments recommended
by the Council of States and accepted by the House of the People.
712
226
kept informed about the status of their recommendation to the knowledge that there
recommendation is accepted or not. There are not always that the Lok Sabha rejects
the recommendation from the Rajya Sabha. For Example: In the Year 1961 when the
Tax Bill was going through its formation Rajya Sabha introduced a number of
amendments all of which were agreed and accepted by the Lok Sabha714. Another
feature of the Money Bill lies in the fact that in matters of passing of the Bill of normal
nature Rajya Sabha holds a upper hand. In other words the final passing of Bills is
done at the Rajya Shaba but in the matter of the Money Bill final passing happens at
the Lok Sabha giving it more power and autonomy than the Rajya Sabha. After
Passing of the Bill it is sent to the president for his assent. At such high stand is the
Money Bill kept that it is generally said that if a Money Bill is defeated in the Lok Sabha
it is the defeat of political nature of the government for that particular day the final
decision that whether a Bill is a Money Bill or not rest with the speaker of the house.715
The speaker has full decretory power to decide whether a Bill is a Money Bill or not.
This power of the speaker cannot be challenged in any court.716The speaker of the
house provides certificate signed by him that a Bill is Money Bill. The certificate of the
speaker is final in nature and cannot be challenged in any court of law .Another
features of the Money Bill is that it cannot be send to any of the joint committees of the
two houses of the Parliament if there is a difference between the two. The logic behind
this can be understood in the fact that Lok Sabha is more powerful than the Rajya
Sabha.
2.3 Assent to the Bill

When a Bill is been passed by both the houses of the parliament it will be presented
to the president for its assent and its signature. At this moment of time the president
has two Options with him, either he can give his assent to it or he can withhold the Bill,
Provided that the president may soon return the Bill to the house requesting the
concerned house to reconsider the Bill or any of the specific provision which the
president deems unfit. After the Bill has been returned to the house the house shall
reconsider the Bill and if the Bill is passed by the both the houses of the parliament
and then presented for the parliament for its consent the president is bound to pass
the Bill and cannot further withhold assent.717 If we look into the position of the England
the Queen has the legal right to veto a Bill .Veto can be exercised only on the
ministerial advice and no government would wish to veto Bills for which it was
responsible or one for the passage of which it had afforded facilities through
Parliament 718In the year 2006 the then president Abdul kalam sent the amended
(4) If the House of the People does not accept any of the recommendations of the Council of States,
the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed
by the House of the People without any of the amendments recommended by the Council of States.
(5) If a Money Bill passed by the House of the People and transmitted to the Council of States for its
recommendations is not returned to the House of the People within the said period of fourteen days, it
shall be deemed to have been passed by both Houses at the expiration of the said period in the form
in which it was passed by the House of the People.
714See generally Arthapedia Finance Bill
http://www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act visited on 10/03/2015 at 19:25.
715
Supra.
716Supra.
717
718
See generally V.N .Sukla Constitution of India page no. 486 12th edition.
Wade, Constitutional Law page no 125 (16thEdn.).
227
parliament act 1959 for such reconsideration. He then assented to him when it given
without any recommendation. |In the case of the Money Bill the president does not
have the power to withhold the Bill. He needs to pass the Bill in the very first time as it
is passed by the parliament.
2.4 Functions of Rajya Sabha In Respect To Money Bill

Money Bills are those Bills which contain only provisions dealing with all or any of the
matters specified in sub-clauses (a) to (f) of clause (1) of Article 110 of the
Const. Financial Bills can be further classified as Financial Bills Categories A and B.
Category A Bills contain provisions dealing with any of the matters specified in subclauses (a) to (f) of clause (1) of Article 110 and other matters and Category B Bills
involve expenditure from the Consolidated Fund of India Except Money Bills and
Financial Bills, Category A, which can be introduced only in the Lok Sabha, a Bill may
originate in either House of Parliament. As per the provisions of Article 109 of the
Constitution, the Rajya Sabha has limited powers with respect to Money Bills. A
Money Bill after having been passed by The Rajya Sabha has very limited powers in
the matters of the Money Bill. The Money Bill after been passed in the Lok Sabha
sends it to the Rajya Sabha for its recommendation and gives a period of 14 days to
do so. It then sends the Bill back to the Lok Sabha with without recommendation. The
Lok Sabha is not bound to follow the same and it may or may not accept the
recommendation of the Rajya Sabha, in case a Money Bill is not returned by the Rajya
Sabha to the Lok Sabha within a period of fourteen days from the date of its receipt, it
is deemed to have been passed by both Houses in the form in which it was passed by
the Lok Sabha after the expiry of said period719
2.5 Functions of Lok Shabha in Respect to Money Bill
The lower house also known as lower house in the parliament has the power to pass
all the Bills those subject Lok Sabha can pass Bills concerning all those subjects which
have been included in the Union List and the Concurrent List. It can pass Bills
regarding state subjects also in emergencies or if Rajya Sabha by a resolution passed
by majority of its total members and 2/3 of its members present and voting declared a
particular -state subject of national importance. However, such a Bill can be valid for
a year only.720 A Non-Money Bill can be introduced in any of the house. In case, there
is a dead lock and the Houses cannot come to an agreement the President interferes
and may summon a joint session of both the Houses of Parliament to end the dead
lock. If the Bill is passed by the majority of the total members of the Houses concerned
in a joint session, it is deemed to have been passed by both the Houses of Parliament.
One of the important since the membership of Lok Sabha is almost double to that of
the Rajya Sabha, the will of the former is likely to prevail. Thus supremacy of Lok
Sabha over Rajya Sabha in ordinary or important non- Money Bills is self-evident. The
Lok Sabhas control over purse is an undisputed fact. A Money Bill must be initiated in
the Lok Sabha721. When passed by the Lok Sabha, it is to be transmitted to the Rajya
719
See generally Rajya Sabha Introduction of legislation

http://RajyaSabha.nic.in/rsnew/legislation/introduction visited on 10/03/2015 at 22.38 P.M.
720 See also Lok Sabha functions of Lok Sabha http://www.yourArticlelibrary.com/Lok-Sabha/7functions-of-Lok-Sabha-explained/49259/ visited on 12/03/2015 at 2.30 A.M.
721
Article 109(1), Constitution of India, 1950.
228
Sabha for its recommendations. The Constitution, however, requires the Rajya Sabha
to return it to the Lok Sabha with its recommendations within 14 days from the date of
receipt of the Bill If the Lok Sabha accepts these recommendations, the Bill is deemed
to have been passed by both the Houses of the Parliament. If the amendments made
by the Rajya Sabha are not acceptable to the Lok Sabha the Bill is deemed to have
been passed by both the Houses in the original form. If a Bill is passed by the Lok
Sabha, and while sent to the Rajya Sabha, is not returned within 14 days it is deemed
to have been passed by both the Houses of the Parliament, after the expiry of the
stipulated period. Evidently, the Rajya Sabha possesses power of delaying a Money
Bill only for 14 days.
Chapter IV
3.1 Finance Bill
A Finance Bill is a legislative act to provide the necessary funds for the public
treasury.722When a government proposes to introduce or levy new taxes or it wants to
modify its existing tax structure or wants to create an entirely new tax structure which
has not been approved by the parliament. All these type of changes are brought to the
parliament by submitting through a Bill known as the Finance Bill. It is compulsory that
a Finance Bill must be attached with a Memorandum which contains the proper
explanation and the reasons of the provision included in the Bill. Moreover just like a
Money Bill the Finance Bill can only be introduced in the Lok Sabha. Just like Money
Bill the Rajya Sabha can recommend amendments in the Bill . The Bill has to be
passed by the Parliament within 75 days of its introduction.723 The Finance Bill is a
type of Bill which has a high secrecy level attached to it, This Bill is presented every
year in the Lok Sabha immediately after the presentation of the union budget. The
main reason of presenting it after the budget is to give effect to the financial proposals
of the government of India which was proposed by the finance minister during the
presentation of the budget. The rule 219 of the rules of the procedures of the Lok
Sabha defines Finance Bill724 It also include a Bill that gives effect to the
supplementary financial proposal for any period.. The Bill is presented to the
parliament at the time of the annual financial presentation with respect to the Article
110 (1) (a) of the Indian constitution725.It only through the Finance Bill that it is possible
722
723
http://www.merriam-webster.com/dictionary/finance%20Bill.
See generally http://economictimes.indiatimes.com/definition/Finance-Bill.
In this rule Finance Bill means the Bill ordinarily introduced in each year to give effect to the financial
proposals of the Government of India for the next following financial year and includes a Bill to give
effect to supplementary financial proposals for any period.
725 (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only
provisions dealing with all or any of the following matters, namely: (a) the imposition, abolition,
remission, alteration or regulation of any tax; (b) the regulation of the borrowing of Money or the giving
of any guarantee by the Government of India, or the amendment of the law with respect to any financial
obligations undertaken or to be undertaken by the Government of India; (c) the custody of the
Consolidated Fund or the Contingency Fund of India, the payment of Moneys into or the withdrawal of
Moneys from any such Fund; (d) the appropriation of Moneys out of the Consolidated Fund of India; (e)
the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the
increasing of the amount of any such expenditure; (f) the receipt of Money on account of the
Consolidated Fund of India or the public account of India or the custody or issue of such Money or the
audit of the accounts of the Union or of a State; or (g) any matter incidental to any of the matters
specified in sub-clauses (a) to (f).
724
229
to amend various amendment in the Income Tax Act 1961, Customs Act 1962 is
possible . In short, Finance Bill can be considered as an umbrella Act. However, being
an Act of the Parliament, the various chapters of Finance Act independently also exist
and is hence enforceable. For instance, a Commodity Transaction Tax was imposed
through Chapter VII of the Finance Act of the year 2013. Similarly the service tax was
introduced through Chapter V of the Finance Act of 1994.726727.During the time of the
elections years there are usually two types of Bills one of the government whose term
is getting over and one of the new government which is going to come in power titled
as Finance Bill (No. 2) of that year.
3.2 Finance Bill vs. Appropriation Bill
While the Finance Bill generally seeks approval of the Parliament for raising resources
through taxes, cess etc., an Appropriation Bill seeks Parliament's approval for the
withdrawal from the Consolidated Fund of India to meet the approved expenditures of
the Government. Both Finance Bill and Appropriation Bill are Money Bills only there
nature differs.728
3.3 Relation between Financial Bill and Non Tax Proposals
Bill is to give effect to the financial proposals given by the Government, but that the
same time it does not ignore the possibility of inclusion of non-taxation proposals.
Therefore, a Finance Bill may contain non-taxation proposals also. But the fact is that
a well-established practice of Lok Sabha has been not to include in the normal sense
the financial Bill deals with income tax, customs, service tax and various related
aspects and is intended to help implement the budget and the various provision of the
government related to the financial matters. The use of financial matters also extend
to the amendment in the certain act such as UTI Act or FRBM Act, Securities contracts
regulation Act and Prevention of Money Laundering Act. Such amendments are
usually presented under the Miscellaneous Chapter of the Finance Bill.It was in the
year 2015 that the first time the question of whether the Finance Bill should contain
non tax proposals or not. In the Finance Bill 2015 when the Finance Bill contains many
policy amendments like the public debt management agency, the act to repeal the
government securities Act, Amendment to regulate the RBI act etc. the house was
taken by a storm as it was divided into two parts .The one side argued that the Bill
should be withdrawn and a new Bill should be introduced Some argued that the
inclusion of non-taxation proposals in the Finance Bill, which is a Money Bill, would
curtail the power of Rajya Sabha to amend those provisions. The other side was the
minority group who supported the claim and argued for the inclusion and widening the
meaning of the meaning of the financial Bill. Finally the honble speaker clarified on
this debate and as per rule 219 of the rules of procedure of the Lok Sabha 729 the
primary object of the Finance non-taxation proposals in not only a Finance Bill but also
other Bills containing taxation proposals unless it is imperative to include such
proposals on constitutional or legal grounds. Therefore, Speaker ruled that every effort
should be made to separate taxation measures from other matters unless it is
726
See generally India budget India budget: http://indiabudget.nic.in/ visited on 14/03/2015 at 15.05
P.M.
www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act visited on 14/03/2015 at 16.45 P.M.
728Ibid.
729 See Lok Sabha Lok Sabha Rules http://164.100.47.192/Lok Sabha/rules/RULES-2010-PFINAL_1.pdf visited on 15/03/2015 at 19.05 P.M.
230
impossible on constitutional or legal grounds or some such unavoidable reasons, to

do so in a particular case.730
3.4 The Common Link between Money Bill and Finance Bill
There are not many similarities between a Money Bill and the Finance Bill but on a
closer study of these two concepts there arise few of the common elements. One of
the similarities is the both of these Bills are originated in the Lok Sabha and not in
Rajya Sabha. This means Lok Shaba enjoys greater power and autonomy over
financial matters, .Another point of difference lies in the fact that none of the two Bills
cannot be introduced in the parliament without the prior consent of the president which
is exclusively given in the Article 117 (1) .
3.5 The Difference between Money Bill and Finance Bill
(1) As discussed above a money bill deals with any of the matters specified above
as Article 110 (a) to Article (g). However the Finance Bill is just about Article
110 (a). The structure of the Finance Bill presented with the document has the
following heads, supported by schedules, statement of object and reason and
notes on clauses. Rates of income tax, Income tax, Wealth tax, Customs,
Excise Service Tax, Central Sales Tax, etc.
(2) All of the above are within the purview of Article 110(a). In simple language a
Money Bill may have other provisions also. Like Money Bills, they can be
introduced only in the Lok Sabha on the recommendation of the president.
(3) Another Restriction is that Money Bill can be introduced only in a Lok Shabha
while a finance bill does not suffer from that Restriction.
(4) This means that finance Bill can be referred to a Joint Committee of the house
while Money Bills cannot. This also means that the provision of Article 108
regarding the joint sitting do not apply to the Money bill. This also means that
the Finance Bill can effectively reject by the Rajya Sabha whereas Money Bill
Cannot.
(5) Finance Bill is a Bill introduced in Lok Sabha every year immediately after the
presentation of the General Budget to give effect to the financial proposals of
the Government of India for the following financial year. Finance Bills are
treated as Money Bills as they substantially deal with amendments to various
tax laws. However Article 117 (3) says that those Bills which contain provisions
of involvement from the consolidated fund of India are Finance Bill and can be
introduced in either House of Parliament. However, recommendation of the
President is essential for consideration of these Bills by either House and
unless such recommendation is received, neither House can pass the Bill.
730See
generally Arthapedia Finance Bill

www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act. Visited on 14/03/2015 at 18.05 P.M.
231
3.6 Finance Bill v. Financial Bill

The Finance Bill is in many ways different from the Money Financial Bill .the financial
Bill is provided in the Article 117 (1) of the Indian constitution.731As far as Money Bill
is concerned Money Bill includes Finance Bill which are a sub set of financial Bill. In
the case of Money Bill it deals only with the matters which are specified in the Article
110 (1) (a) to (f) of the constitution and a Finance Bill does not exclusively deal with
the matters specified in the Article. It may contain some other provision also the
financial Bill can be divided into two broad categories
(1) In the first category in includes all those Bills which contains the provision of the
attached to the Article 110 (a) and (f) of the constitution. They are categorized as
financial Bills under Article 117 (1) of the constitution. It is a type of Bill which
possesses both the features of Money Bill and a Ordinary Bill. . As in the case of
Money Bill, firstly, it cannot be introduced in Rajya Sabha, and secondly, it cannot
be introduced except on the recommendations of the President. Except these two
points of difference, a Financial Bill in all other respects is just like any other
ordinary Bill. There is also a provision for financial Bill under Article 117 (1) of the
constitution that the Bill can be referred to the joint committee of the House. 732
(2) The second type of Bill are those which contains provision for the enactment
which will involve the expenditure from the consolidated fund of India Such Bills
are categorized as Financial Bills under Article 117 (3) of the Constitution. Such
Bills
can
be
introduced
in
either
House
of
Parliament.
However, recommendation of the President is essential for consideration of
these Bills by either House and unless such recommendation is received,
neither House can pass the Bill. Such Bills are more in the nature of ordinary
Bills rather than the Money Bills and Financial Bills. The only point of difference
between this category of Financial Bills and the ordinary Bills is that such a
Financial Bill, if enacted and brought into operation, involves expenditure from
the Consolidated Fund of India and cannot be passed by either House of
Parliament unless the President has recommended to that House the
consideration of the Bill.733Finance Bills can be referred to a Joint Committee
of the Houses while Money Bills cannot. This also means that provisions of
Article 108 regarding joint sitting of both Houses do not apply to a Money Bill.
This also means that a Finance Bill can effectively rejected by the Rajya Sabha
whereas Money Bill cannot. Finance Bill is a Bill introduced in Lok Sabha every
year immediately after the presentation of the General Budget to give effect to
the financial proposals of the Government of India for the following financial
year734
731
Article 117, Constitution of India, 1950.

generally Arthapedia Finance Bill
http://www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act visited on 15/03/16 at 16.30
P.M.
http://www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act visited on 15/03/`16 at 17.35
P.M.
732See
734
See G.K Today Difference between a Money Bill and Finance Bill
http://www.gktoday.in/answer/what-is-the-difference-between-a-Money-Bill-a-finance-Bill/ visited on
17/03/16 at 22.15 P.M.
232
Chapter IV
4.1 Money Bill in the State legislation
The state performs function for the state which the Parliament does for the whole of
India. It Makes Laws, Levis taxes for the public expenditure and controls the state
executive. An ordinary Bill other than a Money or financial Bill, can originate in either
house of the state legislature Article 196 (2). A Bill pending in the legislature does not
lapse because of prorogation of the house (Article 196 (4)735 .If a Bill is passed by the
legislative assembly is for some reason rejected by the Legislative council or it does
not pass it within three months from the date it is laid then the assembly may pass the
Bill again and transmit it to the legislative council and again if the legislative council
does not pass the Bill it is deemed to be passed by both the houses of the assembly.
Article 197 (1) and (2). The Legislative council act resist for some time but ultimately
the will of the of the Legislative assembly wins.736Thereafter the Bill is send to the
governor for his assent he may
(1) He may give his assent to the Bill: Or
(2) He may withhold his assent there from: Or
(3) He may return it to the Legislature for reconsideration ;or
(4) He may reserve it for the consideration of the president ,
With a harmonious reading of Article 200 of the Indian constitution it can be inferred
that the Bill Pending the assent of the Governor does not lapse as a result of the
dissolution of the State Assembly 737
In Unicameral legislation passage of Money Bill the passing of Money Bill does not
have such difficulty .in a Bi Cameral Legislation the Legislative assembly prevails over
the Legislative council in the matters of financial matters. Money Bill can only be
introduced only in assembly not in the council 198 (1) and 207 (1). After the Money
Bill is passed by the assembly it is send to the council for recommendation. It has only
14 days to do so from the date it receives the Bill. The assembly has the power to
accept or reject it. Article 198 (2). A Money Bill cannot be introduced in the assembly
without the consent of the governor Article (207(1) ) and the speaker decision to
decide a Bill is Money Bill or not is final and binding ( Article 199(3) ) .
Speaker certificate
The supreme court in the State of Punjab vs Sat Pal Dang738 held that the requirement
the speaker certificate on the Money Bill is Directory and not mandatory and in the
absence of the speaker the deputy speaker can grant the certificate. Moreover that
certificate cannot be challenged in the court of law. 739
735
State of Bihar vs Kameshwar, AIR 1952 SC 252 : 1952 SCR 889.

Indian constitutional law by M.P Jain page no 320 7 th Edition.
737 P. Nambundri vs State of Kerala Air 1962 SC 964:701-702: 7531962 supp (1) SCR.
738 Kewal vs State of Punjab AIR 1980 SC 1008: (1980) I SCC 416.
739 Indian constitutional law 7th edition by M.P. Jain page no 323.
736
233
CHAPTER V
THE RELATIONSHIP BETWEEN ADHAAR BILL 2016 AND THE MONEY BILL
The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Bill, 2016
Introduction about the bill
It was the day of Wednesday the 16th of March 2016 that the Aadhaar targeted delivery
of financial and other subsidies, Benefits and services Bill. The main purpose of the
bill is aimed at providing better targeting of subsidies through the Aadhaar unique
identify number. The Bill intends to provide for targeted delivery of subsidies and
services to individuals residing in India by assigning them unique identity numbers,
called Aadhaar numbers. Every resident shall be entitled to obtain an Aadhaar
number. A resident is a person who has resided in India for 182 days, in the one year
preceding the date of application for enrolment for Aadhaar. It is the UID authority that
will verify the Aadhaar number of an individual, if some other person makes a request.
The consent of the individual is a must for collecting the persons information. The
agency can use the disclosed information only for purposes for which the individual
has given consent. This information may be revealed under two circumstances which
is laid under section 33 of the bill (1) In the Interest of the National Security, the joint
secretary in the central government may issue a direction by revealing various
information under them such as the Aadhaar Number, biometric number etc (2) On
the Order of the court Aadhaar Number, photograph and demographic information,
may be revealed.
Objection to the bill by the opposition
One of the major objections which the opposition raised as the Bill being raised as a
Money bill. A Money bill actually relates to the taxes or spending or borrowing from the
government and requires no approval from the Rajya Sabha. The Upper House can
make recommendation which the Lok Sabha can accept or reject. The opposition
blames the government that the Aadhaar Bill has been introduced as a Money Bill only
to avoid the Ruling NDAs Minority status in the Rajya Sabha. The second issue was
that the implementation of Aadhaar number encroaches the privacy of a person is still
pending in the Supreme Court. in last-ditch attempts, Opposition members including
those from Trinamool, CPI(M) and BJD appealed to the government to respect the
"wisdom" of the house of elders and accept their amendments in a democratic spirit
and not to reject them on "ego"
Government justification
Mr Arun Jaitely who moved the bill said it is a money bill on the strong support that the
act deals with subsidies and the money flows out of Consolidated Fund of India. These
two are the very basics of a money bill and thus it can be termed as money bill. Further
hat also came to the government's rescue is speaker PJ Kurien's contention that that
it was a money Bill. Therefore on satisfying the condition of the Money Bill its can be
inferred that the bill was such a money bill in its nature.
234
CHAPTER VI
CONCLUSION AND SUGGESTION
The constitution of our country has provided our parliament with the power of passing
many bills for the betterment and the progress of our country. In the lieu of the same
the parliament passes bills relating to money matter and matter related to tax and
matter related to consolidated fund of india. . Government collect taxes from public
and the common public and then uses it in various ways to fulfil the need of them.
These taxes and the money collected from the public need to be spend with atmost
cautious and precautions. That s the reason the fathers of our constitution decided to
pass all the services with a full legal process and validity. For this purpose the
constitutional makers inserted the clause of BILL in the constitution. A Bill is defined
as: A BILL is proposed legislation under consideration by a legislature. A bill does not
become law until it is passed by the legislature. There many types of bill: Money bill,
financial bill, Appropriation bill, ordinary bill etc all these types of bills are passed with
different procedure and different houses enjoys different powers governing them. The
researcher in this project will try to find the answers to these questions and give a clear
insight regarding the procedures and the different powers which both the houses hold.
Not only the central government but also the state government has the power to pass
and implement bills. In further chapters the researchers tries to understand the powers
of the president and the governors respectively in dealing with different types of bills.
The special focus will be on money bill and the procedure relating to money bill. a
definition of a money bill in general sense is a must to understand it concept . Bill is
said to be a Money Bill if it only contains provisions related to taxation, borrowing of
money by the government, expenditure from or receipt to the Consolidated Fund of
India. There is also a concept of finance bill which will be dealt in this research project.
Basically a finance Bill is said to be a Money Bill if it only contains provisions related
to taxation, borrowing of money by the government, expenditure from or receipt to the
Consolidated Fund of India. The speaker role is also must for passing of a bill. At the
end the reader will get clear definition about money bill, financial bill and the difference
between the two.
Bibliography
Primary Sources:
State of Maharashtra v. Swanston Multiplex Cinema Private ,(2009) 8 SCC 235:

AIR 2009 SC 2750
Corporation of Calcutta v. Liberty Cinema ,AIR 1965 SC 1107: ( 1965) 2 SCR
477
Secondary Sources
BOOKS REFERRED:
Constitution law of India by J.N Pandey

Constitution by Servai
Constitution by V.N Sukla
Constitution by D.D Basu ( old edition)
Constitution by M.P Jain:
Constitution by D.J DE :
Page no 514 to 518

Page no 1124 to page no 1129
Page no 479 to Page no 488
:Page No 1144 to 1148
Page no 323 to 326
Page no 223 to 238
235
The Constitution of India by P.M .Bakshi: Page no 134 to 138
Websites
http://indianexpress.com/Article/explained/meaning-moneybill/#sthash.Fh3eG1gC.dpuf
http://www.arthapedia.in/index.php?title=Finance_Bill_or_Finance_Act
http://economictimes.indiatimes.com/definition/Finance-Bill
http://indianexpress.com/Article/explained/meaning-money-bill
Cases Referred
State of Maharashtra v. Swanston Multiplex Cinema Private ,(2009) 8 SCC 235:
AIR 2009 SC 2750
Corporation of Calcutta v. Liberty Cinema ,AIR 1965 SC 1107: ( 1965) 2 SCR
477
236
JUDICIAL ATTITUDE TOWARDS EUTHANASIA- PARADOXES AND

DILEMMAS
TEJASV ANAND
AMITY LAW SCHOOL, DELHI
Abstract
Euthanasia is perhaps the most debated topics on the globe and India seems no
exception to this debate. The conflict between the sanctity of life on one hand and the
freedom to death on the other seems to be one of the biggest dilemmas of this era.
The paper revolves the issue of Euthanasia as perceived by the courts and the moral
masses. The paper examines the role of Law and their interconnection with the
medical profession and medical ethics. It seeks to understand the paradoxes in the
courts judgment and unwillingness of legislature to scrap Section 309 of the Indian
Penal Code. The paper examines the various judicial pronouncements on the subject
of Euthanasia in detail by stressing upon the views of the judicial officers.
Introduction
To be, or not to be: that is the question, whether tis nobler in the mind to suffer
The slings and arrows of outrageous fortune, Or to take arms against a sea of
troubles,
And by opposing end them?(Hamlet)
Ever since morality has been a domineering of law, the societies have witnessed a
continuous bickering over the issue to live; and not to live. Convincing computations
of the courts coming from the idol like law guardians, have attempted to resolve the
strife of to be or not to be on criterion such as Public Policy, Ethics, Dignity, Religious
Perceptions, World Opinion, Functional theory of sentencing, Punitive Arts and many
more. The paper aims to understand the developments in the perception of the
euthanasia. The paper critically examines the judicial decisions and deciphers the
existing law pertaining to it. The paper examines the continuous combat between
Democracy, The Constitution of India and a Religious stand resulted in the victory of
uprightness of life over death: which has been the adapted by the courts, placing the
inviolability of life at the apotheosis. This pragmatic compromise reflects a moral
impasse that seeks to protect lives which is understood by the jurisprudential angle in
the paper. The paper also seeks to propound the role of doctors and their duties
towards the society on one hand and towards their patients on the other.
The word euthanasia stems from two Greek words -eu, meaning well or good and
thanatos, meaning death. Literally therefore, euthanasia means a good death
However, in current debates, euthanasia is generally understood to mean the bringing
about of a good death mercy killing, where one person assists another, in his
fallacious pursuit to end his life. The history has perhaps has a different tale to
elucidate. Hippocrates, the originator of the famous Hippocratic Oath740 was a
740
A Hippocratic Oath is an oath stating the obligations and proper conduct of doctors, formally
undertaken by the doctors.
237
physician in the Pythagorean tradition whose Oath is often referred to for moral
guidance in medicine that was intended to prolong ethical considerations to the
physicians. Hippocrates touched upon many issues; euthanasia being one,741
whereby the undertaker is obliged to stay in a pro-life lobby and to keep assisted
suicide outside the ethical boundaries of the medical field.
However, the Encyclopedia of Applied Ethics742 has a altered view to the notion of
euthanasia, it asserts that if there is one thing over which we should be able to exert
absolute control, it is over our own lives. If an individual selects that death is preferable
to the life she currently has, that she should be free to end that life. If she is not in the
position to end her without help, it is not wrong for her to ask others for assistance to
do so and it is not, therefore, wrong for them to give that assistance the concept of
euthanasia is thus a debate between the sancity of life and the right to choose that
quality of life.
The Judicial Approach
The primary legislation, which deals with the right to end ones life, is Section 309 of
the Indian Penal Code, 1860. The law as it stands states that Whoever attempts to
commit suicide and does any act towards the commission of such offence, shall he
punished with simple imprisonment for a term which may extend to one year 1[or
with fine, or with both]. So the attempt to commit suicide is made punishable under
the Indian Criminal Law. The law is old and has been considered obsolete by many
legal scientists. In the Court of law the constitutional validity of the law has been
challenged many times. But, the law and the judicial attitude has not changed yet.
The court in State V. Sanjay Kumar Bhatia743, stated that section 309 an
anachronism and a paradox, the court enunciated: Instead of the society hanging its
head in shame that there should be such social strains that a young man (the hope of
tomorrow) should be driven to suicide compounds its inadequacy by treating the boy
as a criminal. Instead of sending the young boy to psychiatric clinic it gleefully sends
him to mingle with criminals, as if trying its best to see that in future he does fall foul
of the punitive sections of the Penal Code. The court in the above decision very
explicitly saw Section 309 as an archaic legislation. Instead of providing medical
facilities or removing the reasons driving him to commit suicide he is instead punished
and sent to prisons which have criminals. This decision was followed by conflicting
decisions of Bombay High Court and the Andhra Pradesh High Court.
In Maruti Shripati Dubal V. State of Maharashtra744 the court held: Suicide
involves no damage to person or property of others. If destruction of one's property or
its deliverance to others for a cause or no cause is not an offence, there is no reason
why sacrifice of one's body for a cause or without a cause or for the mere deliverance
of it should be regarded as an offence. Much less an attempt at doing so. One's life,
one's body with all its limbs are certainly one's property and he is the sole master of
it. The Decision of the Bombay High Court appears to be in conformity of the idea as
propounded by the Encyclopedia of Applied ethics as discussed earlier. The decision
741
I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to this
effect.
742 Euthanasia: A critical Analysis of the Physicians Role. - MADU BENEDICT CHINWEZE
7431986 (10) DRJ 31
744 1987 (1) BomCR 499, (1986) 88 BOMLR 589
238
seeks to touch upon the fundamentals of the criminal law by describing the offence as
non-destructive to anyone life of property.
The Andhra Pradesh High Court, however, posted a different view in the case of
Chenna Jagadeeswar and Anr. V. State Of Andhra Pradesh745, the court held that
It is a paradox that society will neither provide sustenance nor allow the sufferer to
die. In this complexity of social mal-adjustments, the best safeguard is the Court which
should exercise and temper its judgment with humanity and compassion. In a Country
like India, where the individual is subjected to tremendous pressures, it is wise to err
on the side of caution. To confer a right to destroy one-self and to take it away from
the purview of the Courts to enquire into the act would be one step down in the scene
of human distress and motivation. It may lead to several incongruities and it is not
desirable to permit them. The idea behind the judgment appears to be in favor of
Section 309. However, it should be noted that non-criminalizing of an act does
contemplate conferring of a right and so if the courts seeks to discourage the practice
of suicide its criminalization is not the only option.
In Court on Own Motion V. Yogesh Sharma746 Justice Sachar took the novel
ideology to its rational conclusion by quashing, in a feat of rare judicial creativity, all
the pending 119 attempted suicide cases in Delhi, in the exercise of inherent power
under Section 482 Code of Criminal Procedure. While Quashing the charges the court
took a number of cases into consideration and while examining the facts of the cases
came to a conclusion that imprisonment to any of these accused under Section 309
wont solve any purpose at all. Further, he held that the provision should be repealed
as done by most of the civilized nations.
Later in, P.Rathinam V. Union of India747 the court held that Section
309 violates Article 21, and so, it is void. May it be said that the view taken by us would
advance not only the cause of humanisation, which is a need of the day, but of
globalization also, as by effacing Section 309 we would be attuning this part of our
criminal law to the global wavelength. The court in this case declared Section 309 of
the IPC constitutionally invalid as it violates the right to life enshrined under Article 21
of the Constitution of India. The case triggered a debate of whether right to life also
includes right to die or not?
Law of the Land and Euthanasia
To understand the co-relation between the Constitution of the worlds largest
democracy and the law concerning Euthanasia it would be pertinent to note some of
the landmark cases and the view taken by the Honble Supreme Court.
The court in the case of P. Rathinam declared Section 309 of the Indian Penal Code.
Later, in the case of Gian Kaur v State of Punjab748 the petitioner raised various
questions of law, which were imperative in deciphering the law related to euthanasia.
745
In the case, which arose before the Bombay High Court, a Constable of Maharashtra Police who
became mentally ill after a road accident, wanted to make a living by putting up a vegetable stall. But
the Municipality would not grant him a licence. The Municipal Commissioner refused to grant him an
interview. In sheer desperation, the Constable poured kerosene on his body and was about to commit
self-immolation, but the security staff stopped him
746 1986 RLR 348
747
1994 AIR 1844, 1994 SCC (3) 394
748
1996 AIR 946, 1996 SCC (2) 648
239
The petitioners raised various Questions of Law in the case:

1. First and the foremost was the scope of Article 21 of the Constitution749 and does it
include Right to Die?
The petitioners in the case quoting from an earlier case750 argued that fundamental
rights are both in the form of positive and negative rights. To explain this they
contended that if a person has a freedom to speak he also has a freedom to silence751
and similar is the case with other Fundamental Rights and so Right to live under Article
21 should also contain Right not to live, i.e., Right to die. But the Court took a contrary
view Article 21 is a provision guaranteeing protection of life and personal liberty and
by no stretch of imagination can extinction of life be read to be included in protection
of life. Whatever may be the philosophy of permitting a person to extinguish his life
by committing suicide, we find it difficult to construe Article 21 to include within it the
right to die as a part of the fundamental guaranteed therein. The court further held
that it found no similarity in the nature of right to life and other fundamental rights.
The Court was of the view The Right to Die, if any, is inherently inconsistent with the
right to life as in death with life.
2. The second question, which was brought to the notice of the Court, was the
Constitutional validity of Section 309 with reference to Article 14 of the Constitution752.
The counsels vehemently argued It is a monstrous and barbaric provision which
violates the equality clause being discriminatory and arbitrary. The Court, however,
did not accept this contention as was rejected in P. Rathinam753 also. The court in the
Decision gave the same reasoning as given by P.Rathinam.754 The learned counsels
relied on the judgement of Maruti Shri Pati Dubal, Vs. State of Maharashtra755 and
further relied on the deletion of such provision by various civilized nations.
3. The Third point of Consideration that was raised, was the Desirability of retaining
such a penal provision of punishing attempt to suicide?
The court held Even if those facts are to weigh, the severity of the provision is
mitigated by the wide discretion in the matter of sentencing since there is no
requirement of awarding any minimum sentence and the sentence of Imprisonment is
not even compulsory. There is also no minimum fine prescribed as sentence, which
alone may be the punishment awarded on conviction under Section 309 IPC. The
court then took notice of various judicial decisions where it was seen that accused has
been dealt with compassion by giving benefit under the Probation of Offenders Act,
1958 or Section 562 of the Code of Criminal Procedure Code, 1908 or corresponding
to Section 360 of the Code of Criminal Procedure, 1973. : Barkat V. Emperor756;
Article 21 reads as: No person shall be deprived of his life or personal liberty except according to
a procedure established by law.
750 Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248
751 Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615
752 Article 14 reads as: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth.
753 P Ranthinam V. Union of India (1994) 3 SCC 394 : 1994 SCC (Cri) 740
754 SCC P. 4015, paras 16-19
755 1987 Crl.L.J.743
749
756
AIR 1934 lAH 514, ILR 15 Lah 872
240
Emperor V. Dwarka Pooja757; Emperor V. Dhirajia758; Ram Sunder Dubey V.

State759;Valentino Esperdio de Souza V. State760;Phulabai Sadhu Shinder V. State of
Maharashtra761; Radharani V. State of M.P762; Rukhmina Devi V. State of U.P763.
The Court found no ground to hold the Section 309 as constitutionally invalid. The
Court while considering the offence under Section 306764 held that Section 309 and
306 are two distinct offences and thus exist distinctly. The court further upholding the
decision of the Bombay High Court in Naresh Marotrao Sakhre V. Union of India765
upheld the constitutional validity of Section 306 of the IPC. The above judgment
acknowledges the distinctiveness of the offences of Section 309 and Section 306,
further it gives all the possible answers to the constitutional validity of the provisions.
But the court is however, unable to give any argument in favor of Section 309 morally
and the desirability of it being preserved in the Indian Penal Code. The judges also
took note of various judicial decisions that have treated the accused in such cases
with compassion. But why do criminals under Section 309 have to be treated with
compassion? Why does the police have to do all the investigation when the criminal
under Section 309 wont be subject to an imprisonment? Why does the criminal under
Section 309 have to come to the courts during the trial and engage a lawyer when
ultimately he will be set free? Why does the whole justice machinery have to work so
hard to produce absolutely nothing? When all of these questions are read cumulatively
they pose a view that the accused is neither an actual criminal nor has he harmed
anyones property of life nor is he a threat to the society. So how can an accused not
be a criminal but the provision under which he is accused, a crime?
Proceeding to the one of the most prolonged case of the country that triggered the
legal debate as against the moral debate. The judiciary was, however, reluctant to set
any precedent, which may become a potential for the coming generations. The debate
was the one concerning assisted suicide or active euthanasia, the case was Aruna
Ramchandra Shanbaug vs Union Of India & Ors on 7 March, 2011 where a public
spirited person filed an application of euthanasia for Aruna shanbaug who had been
bed ridden for 36 years.766
757
14 Bom LR 146 14 IC 598 (I)

AIR 1940 All 486
759 AIR 1962 All 262
760 AIR 1967 Goa 138
761 1976 Cri LJ 1519 (Bom)
762 1981 Supp SCC 84
763 1989 Cri LJ 548
764 Section 306 reads as If any person commits suicide, whoever abets the commission of such suicide,
shall be punished with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
765 1995 Cri LJ 96 (Bom)
766It is alleged at pg. 11 of the petition that 36 years had expired since the incident and now Aruna
Ramachandra Shanbaug is about 60 years of age. She is featherweight, and her brittle bones could
break if her hand or legs are awkwardly caught, even accidentally, under her lighter body. She has
stopped menstruating and her skin is now like papier mache' stretched over a skeleton. She is prone to
bed sores. Her wrists are twisted inwards. Her teeth had decayed causing her immense pain. She can
only be given mashed food, on which she survives. It is alleged that Aruna Ramachandra Shanbaug is
in a persistent negetative state (p.v.s.) and virtually a dead person and has no state of awareness, and
her brain is virtually dead. She can neither see, nor hear anything nor can she express herself or
communicate, in any manner whatsoever. Her excreta and the urine is discharged on the bed itself.
Once in a while she is cleaned.
758
241
The court was of the opinion that although Section 309 of the Indian Penal Code has
been held to be constitutionally valid in Gian Kaur's case, the time has come when it
should be deleted by Parliament as it has become anachronistic. A person attempts
suicide in a depression or a situation of helplessness, and hence he needs support,
rather than punishment and recommended the Parliament to consider the feasibility of
deleting the provision.
The case on being examined by an appointed committee involved a critical situation
of Brain Death767 In this connection the courts referred to the Transplantation of
Human Organs Act, 1994 enacted by the Indian Parliament.768
Although the above Act was only for the purpose of regulation of transplantation of
human organs it throws some light on the meaning of brain death. From the above
viewpoint, the court concluded that it couldnt be said that Aruna Shanbaug is dead.
Also there was no statutory provision in the country as to the legal procedure for
withdrawing life support to a person in PVS or who is otherwise incompetent to take a
decision in this connection. Relying on the Doctrine of Parens Patriae769 the courts
decided not to allow withdrawal of life support system on Aruna Shanbaug, not
recognizing the right to die.
While again, she goes back into the same sub-human condition. Judged by any
parameter, Aruna cannot be said to be a living person and it is only on account of
mashed food that is put into her mouth that there is a facade of life, which is totally
devoid of any human element. The petitioner claimed that there is no possibility of any
improvement in her health and thus the food being given to her shall be stopped and
she shall be allowed to die peacefully.
The court found no indications of Aruna Shanbaug's views or wishes with respect to
life-sustaining treatments for a permanent vegetative state. In the case of Vikram Deo
Singh Tomar vs. State of Bihar 770 where it was observed by this Court:
767
Brain death, thus, is different from a persistent vegetative state, where the brain stem continues to
work, and so some degree of reactions may occur, though the possibility of regaining consciousness is
relatively remote.
768 Section 2(d) of the Act states : "brain-stem death" means the stage at which all functions of the brainstem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3:"
Section 3(6) of the said Act states: "(6) Where any human organ is to be removed from the body of a
person in the event of his brain-stem death, no such removal shall be undertaken unless such death is
certified, in such form and in such manner and on satisfaction of such conditions and requirements as
may be prescribed, by a Board of medical experts consisting of the following, namely:- (i) the registered
medical practitioner, in charge of the hospital in which brain-stem death has occurred; (ii) an
independent registered medical practitioner, being a specialist, to be nominated by the registered
medical practitioner specified in clause (i), from the panel of names approved by the Appropriate
Authority; (iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner
specified in clause (i), from the panel of names approved by the Appropriate Authority; and (iv) the
registered medical practitioner treating the person whose brain-stem death has occurred".
769
The doctrine of Parens Patriae (father of the country) implies that the King is the father of the country
and is under obligation to look after the interest of those who are unable to look after themselves. The
idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can
make decisions and take some other action, sometimes the State is best qualified to take on this role.
770 1988 (Supp) SCC 734 (vide para 2)
242
"We live in an age when this Court has demonstrated, while interpreting Article 21 of
the Constitution, that every person is entitled to a quality of life consistent with his
human personality. The right to live with human dignity is the fundamental right of
every Indian citizen". The court also relied on the decision of the Honble Supreme
Court in which a two-Judge bench of this Court quoted with approval a passage from
an article by Dr. M. Indira and Dr. Alka Dhal in which it was mentioned: "Life is not
mere living but living in health. Health is not the absence of illness but a glowing
vitality". On the 18th of May 2016, the worlds longest coma patient, Aruna Shanbaug
finally died after facing an unbearable agony and justice for 42 years. She died but left
us all to think and deliberate on the question of Euthanasia. The case has triggered a
debate, a debate not of euthanasia but a debate of collective conscience. "My broken,
battered baby bird finally flew away. And she gave India a passive euthanasia law
before doing so."771 The above are the words of Journalist and Author Pinki Virani who
fought for the rights of Aruna Shanbaug for the last 4 decades.
Duty of Doctors and Euthanasia
Doctors are considered to be the saviors of life or the preservers of life. But, if concepts
like active euthanasia772 is allowed these doctors may have to take actions that are
contrary to their perception. But, taking the other side of the coin, the doctors are
expected to reduce the sufferings and pain of the victim. The debate is the one, which
perhaps has to different arguments and so two different views. Taking the law as it
now stands the doctors are not allowed to entertain any request for euthanasia. The
respondents in the case773 filed by an NGO to declare right to die with dignity as a
fundamental right under Article 21 of the Constitution stated that as per the Hippocratic
Oath, the primary duty of every doctor is to save lives of patients. A reference was
made to Regulation 6.7 of the Indian Medical Council (Professional Conduct, Etiquette
and Ethics) Regulations 2002774, which explicitly prohibits doctors from practicing
Euthanasia. The law relating to the duty of the doctors is sub judice in the case of
Parmanand Katara vs. Union of India775, the court by order dated 25th February 2014
referred the matter to a Five-judge Bench to settle a law that balances the right to selfdetermination and the needs of the society.
Conclusion
Marte hain Aarzoo mein marne ki Maut aati hai par nahi aati By Mirza Galib
The above lines have simple words with a complex meaning. It means, I Die for Death,
Death knocks, but still does not come
771
Aruna Shanbaug: Brain-damaged India nurse dies 42 years after rape,

http://www.bbc.com/news/world-asia-india-32776897, last visited on 22nd June, 2016.
772 Which is currently punishable under Section 306 of the Indian Penal Code, 1860.
773 Common Cause v. Union of India Writ Petition (Civil) No. 215 OF 2005
774 Regulation 6.7 reads as follows:- Practicing euthanasia shall constitute unethical conduct. However,
on specific occasion, the question of withdrawing supporting devices to sustain cardiopulmonary
function even after brain death, shall be decided only by a team of doctors and not merely by the treating
physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist
of the doctor in charge of the patient, Chief Medical Officer/Medical Officer in charge of the hospital and
a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the
provisions of the Transplantation of Human Organ Act, 1994.
775
(1989) 4 SCC 286
243
The predicaments in the Judicial Approach may be as controversial as they may be

called but the fact remains that they are the law of the nation. The concept of
Euthanasia is not the one which require only the consent and nod of the judiciary and
the legislatures, but the opinions of the moral masses and the experts is the need of
the hour. Law and Morality may be different but they should not operate against each
other. I would like to conclude by saying that a lot of patients have seen a whole lot of
sufferings and these heartbreaking tales are something, which seek to teach us.
244
THE DEVELOPMENT OF CORPORATE CRIMINAL LIABILITY IN

INDIA: A CASE BY CASE ANALYSIS
YASH KARUNAKARAN
NALSAR UNIVERSITY OF LAW, HYDERABAD
Abstract:
This piece seeks to delve into the various cases of corporate criminal liability tried by
Indian courts, and the parallel development of the same as a bridge between the
usually divergent corporate and criminal law of the country. An empirical study of sorts
has been conducted, with every development accounted for, to achieve the larger
objective of understanding how much work is left to be done in order to adequately
tackle corporate criminal liability.
INTRODUCTION
The idea that each corporation can be a feudal monarchy and yet behave in its
corporate action like a democratic citizen concerned for the world we live in is
one of the great absurdities of our time
-Kim Stanley Robinson
The argument on the appropriateness of attributing criminal liability to corporations in
India is far from over. There have been views expressed both in favour and against
corporate criminal liability. The opponents of the same argue that a corporation has
no mind of its own, thus it cannot demonstrate the moral turpitude, or negative intent
required to establish criminal guilt. They argue that it would be senseless to treat a
corporation as if it had a blameworthy state of mind which, by definition, it can neither
have not come to possess. Furthermore, they contend that since it is impossible to
send an organization to jail, it foils any attempt to attain the goals of deterrence,
punishment and rehabilitation, as pursued by penal sanctions. Those in favour of
corporate criminal liability advocate that Corporations are not fictions. They exist and
occupy a tangible, predominant position within the society, and are as capable as
human beings, (if not more) of causing harm776. Therefore, it is only just and fair to
treat them like natural persons and hold them liable for the offences they have
committed. Corporation which have a major impact on society must be required to
respect the fundamental values of the same. These values are upheld by criminal law,
and thus, putting two and two together, such entities should be held criminally liable.
Over the last century, crime has evolved from being a single perpetrator, individual
acts to white-collar crimes, being massive in nature and spanning borders.
While looking at criminal liability in a general sense, it can be attached only to those
acts in which there is violation of criminal law, i.e. there can be no liability without a
criminal law which prohibits certain acts or omissions. The basic rule of criminal liability
revolves around the basic Latin maxim actus non facit reum, nisi mens sit rea. It
means that for one liable to be liable, it must be shown that an act or omission has
776
Infra note 791
245
been done which was forbidden by law and the same has been done with guilty mind.
Hence every crime has two elements: the physical element (Actus Rea) and the
mental one (Mens Rea). Here, the dispute arose as to how a corporation could be
seen to possess a guilty intent. In the Bhopal Gas Tragedy, Union Carbide was held
criminally liable777, but only because it was held to be strictly liable, wherein mens rea
was irrelevant.
Therefore, the question still arose: what of corporate mens rea?
THEORIES OF CORPORATE LIABILITY
There are three theories which have been used in various different contexts, to hold
corporations criminally liable for crimes and other similar offences. These theories are
those of Vicarious Liability, Identification, and Aggregation. We shall look at these
three in greater detail below:
Theory of vicarious liability:778 As recognized under various streams of laws,

this theory recognizes the fact that there may be instances where one individual
is answerable for the acts of another. This is similarly applied in case of
corporations wherein the same can be held liable for the acts of its employees,
agents, servants, or anyone for whom it is responsible (irrespective of absence
of proof of fault on behalf of the corporation). The corporation is to be
considered directly liable under this theory.
Identification theory:779 Under the identification theory, corporations can be held
liable for regulatory offences and true crimes. It identifies that state of mind
and acts of the senior officers of a corporation such as directors are the directing
minds of the same (As these people are the ones who make decisions and
guide the organization as a whole, seeing as they have controlling power, for
e.g.: board of directors having voting rights). Under this theory too, the
corporation is to be considered directly liable.
Aggregation theory:780 Under this relatively new theory, the knowledge and acts
of different people within the organization are aggregated in order to determine
the liability. All the acts of various officers of the company would be aggregated
in order to determine if in total these actions would amount to a crime had they
been committed by a single individual. This would essentially mean that
corporate criminal liability would not be contingent upon an individual working
for the organization satisfying the relevant culpability criterion.
EVOLUTION OF CORPORATE CRIMINAL LIABILITY IN INDIA:

To study the evolution of corporate criminal liability in India, we shall look upon the
landmark cases that spoke of the same and the precedent they laid down to be
followed with in the future.
777
1986 AIR 1097

Satish Padhi, Corporate Criminal Liability: Principles Of Attribution And Vicarious Liability Clarified;
Accessible at
http://www.mondaq.com/india/x/372090/Corporate+Crime/Corporate+Criminal+Liability+Principles+Of
+Attribution+And+Vicarious+Liability+Clarified, last accessed on 20th March 2016
779 Id
780 Sibani Panda, Analysis of Corporate Criminal liability in India; Accessible at http://lexwarrier.in/2014/02/analysis-corporate-criminal-liability-india/#identifier_21_4888, last accessed on 20th
March 2016
778
246
A.K. Khosla & Ors. v. T.S. Venkatesan & Ors.:781

In the case of A.K. Khosla & Ors. v. T.S. Venkatesan & Ors (1992), two corporations
GenLec and General Electrics limited India were charged under the Indian Penal
Code782 for fraud by a magistrate. The case was brought before the the district court
in Calcutta, which in this case observed that there must exist two pre-condition that
would allow for the charge to sustain, that being:
Proving the presence of mens rea

Ability to impose the subsequent mandatory term of imprisonment as
prescribed by law
The court removed the charge, and held that there could be no question of mens rea
with regard to a corporate body, and further it could not be sentenced to imprisonment
as there exists no physical body.
Oswal Vanaspati & Allied Industries v. State of U.P:783
In Oswal Vanaspati & Allied Industries v. State of U.P (1993), the Full Bench of the
Allahabad High Court also similarly held that a company is only a juristic person, and
having no physical body it could in no case be sentenced to a term of imprisonment
as it cannot physically suffer the same. However, it did delve further into the charges
and debated upon the question of the charge being sustainable. The defendants
stated that no crime can be connected to the company and nor any sentence levied
and any and all punishments including a fine would be illegal. However, the Court did
not accept this, and stated that:
It is settled law that sentence or punishment must follow conviction and if only
corporal punishment is prescribed a company which is a juristic person cannot
be prosecuted as it cannot be punished. If, however, both sentence of
imprisonment and fine is prescribed for natural persons and juristic persons
jointly then though the sentence of imprisonment cannot be awarded to a
company, the sentence of fine can be imposed on it. Thus, it cannot be held that
in such a case the entire sentence prescribed cannot be awarded to a company
as a part of the sentence, namely, that of fine can be awarded to it. Legal
sentence is the sentence prescribed by law. A sentence which is in excess of
the sentence prescribed is always illegal but a sentence which is less than the
sentence prescribed may not in all cases be illegal.
The Assistant Commissioner, Assessment II, vs M/S. Velliappa Textiles Ltd. &
Anr:784
In the case of the Assistant Commissioner v. Velliappa Textiles (2004), the defendant
was a private company that was being charged for violation of certain sections under
the Income tax act (specifically Sections 276-C and 277). These sections called for
imprisonment and fine in case of a violation of the provisions of the same. The
Supreme Court noted that the sections in questioned called for mandatory
imprisonment in case of breach, and thus the court could not levy the charge upon the
corporation as it could only possibly pay the fine, not undergo physical imprisonment.
781
1992 Cri LJ 1448

Indian Penal Code, 1860
783 1993 Comp LJ 172
784 2004 1 COMP LJ 21
782
247
The court followed a strict interpretation, and held that in such a case the corporation
could not be punished under the mentioned section.
While passing this judgment, the Honble court also noted that in situations where
there are different interpretations of a penal statute, and there exist more than one
view, the Court is obligated to follow the one that would result in exemption of the
accused from penalty, rather than one which would impose the same on the accused.
Zee Telefilms Limited v. M/S Sahara India Commercial:785
In Zee telefilms v. Sahara India (2004), the Calcutta High court delved into the merits
of a charge levied upon Zee Telefilms under section 500 of the I.P.C. The submissions
made by Sahara were that Zee had telecasted a program based on false claims and
had thereby defamed the Sahara India Corporation. Justice Ray, conducted the
proceedings, and after listening to both parties, held that in a case of criminal
defamation, the most important aspect is that of mens rea, and that there could be no
mens rea attributed to a corporation. Thus, the court allowed the appeal and dismissed
the charges levied against Zee Telefilms.
Motorola Incorporated & Ors. v. Union of India & Ors:786
In the case of Motorola Inc. V. U.O.I. (2004), the Bombay High Court faced a similar
problem as that in the Zee Telefilms case, where in the Motorola corporation was
accused of cheating under sec. 420 of the I.P.C. the Court, while deciding on the
matter, concurred with the Calcutta High Court and held that under sec. 420 of the
I.P.C., mens rea is integral to the crime of cheating, and that in the present case no
mens rea could be attributed to a corporation. Thus, the corporation could not be
prosecuted for cheating, and the proceedings were quashed.
Standard Chartered Bank & Others v. Directorate of Enforcement & Others:787
In the case of Standard Chartered Bank & Others v. Directorate of Enforcement &
Others (2005), the Supreme Court considered the issue as to whether a company, or
a corporation, being a juristic person, could be prosecuted for an offence for which the
punishment is mandatory imprisonment and fine (thus different from A.K. Khosla v.
T.S. Venkatesan); and if found guilty, whether the court has the discretion to impose
a sentence of fine only. The Honble Supreme Court held that there is no dispute that
a company is liable to be prosecuted and punished for criminal offences. Even though
there are earlier authorities to the effect that corporations cannot commit a crime, the
generally accepted modern rule is that except for such crimes as a corporation is
held incapable of committing by reason of the fact that they involve personal
malicious intent, a corporation may be subject to indictment or any other
criminal process, although the criminal act was committed through its agents.
However, the question of whether or not a corporation could be held liable for crimes
requiring mens rea was still left open. This question was answered by the Iridium case,
which was a landmark case with respect to Corporate Criminal Liability.
Iridium India Telecom Ltd vs Motorola Inc.:788
In Iridium India Telecom Ltd vs Motorola Inc. (2011), the Honble Court stated that the
doctrine of attribution could be used vice-versa, and used it to adjudge the liability of
785
2004 Cri LJ 1576

2004 Cri LJ 1576
787 2005 4 SCC 530
788 AIR 2011 SC 20
786
248
the corporation, instead of the liability of its agents. When offences are committed in
the course of business by those who hold positions of power in the corporation, and
are heads of the same, the business can be held to be their alter ego, and can be held
liable. The Honble court went on to state that the mens rea of such individuals can
also be attributed to the corporation, as the corporation is seen as their alter ego.
Thus, while upholding its stance on the Standard Chartered case, the Supreme Court
has also removed the doubts plaguing corporate criminal liability in India.
CBI v. Blue Sky Tie-Up (P) Ltd.:789
In CBI v. Blue Sky Tie up (2011), the Calcutta High Court dismissed an appeal against
criminal charges filed under sec. 13(2) read with sec. 13(1)(c) and (d) of the Prevention
of Corruption Act790 under the false premise that being a corporate cannot be
prosecuted under the act. The Supreme Court set aside the judgment stating that the
companies can be held liable for the offences mentioned, and any and all fines can be
imposed on the same. The Honble court held that the criminal intent would be
attributed to the alter-ego of the company, i.e. the board of directors and the partners.
OBSERVATIONS
It is now an established legal positon in India that a corporate cannot escape criminal
liability just because the punishment prescribed is imprisonment and fine. In various
cases, the Supreme court has also held that in cases where only imprisonment is the
punishment, a corporate may even then be required to pay a fine as punishment.
Under the IPC, imposition of fines may be done in four separate ways. For certain
offences it is the sole punishment, and thus there has been a maximum limit laid
down.791 In certain other cases, it is seen as an alternative punishment, but again the
amount is limited. In some cases, it is imperative to impose a fine along with an
accompanying punishment, while in others it is obligatory, but no pecuniary limit has
been laid down. The court is empowered by section 357 of the Cr Pc 792 to impose a
fine or a sentence inclusive of a fine, to order a payment of compensation out of the
fine recovered to any person who has incurred a loss or injury due to the offence.
Corporate criminal liability may on the face of it be incompatible with the idea of
deterrence, as the corporate is a fictional entity and therefore cannot be deterred.
However, in reality the aim of law is to deter any unlawful acts of a companys agents.
To defend the use of application of such liability, we must show that it deters
corporates or director or managers better than individual criminal liability. 793
THE QUESTION OF CORPORATE MENS REA
Both the judicial systems of the United States and India were slow to extend corporate
criminal liability to cover crimes of intent794. With the passage of time however, it is
now commonly recognized that the corporates can be held criminally responsible for
789
2011 15 SCC 144

The Prevention of Corruption Act, 1988
791 Angira Singhvi, Corporate crime and Sentencing in India, (2006) IJCJS, Vol.1 Issue 2
792 The Code of Criminal Procedure, 1973
793 Supra note 780
790
794
State v. Morris & Essex Railroad Co (1852) also see Commonwealth V. Proprietors of New
Bedford Bridge (1854)
249
certain criminal acts of its employees. There are certain riders, though, and the
corporation can only be held liable for those criminal acts of its employees that:
Are related to the course of employment.

Are committed within the course of employment.
Are committed in furtherance of the business being carried out by the
corporation.
In these cases, the imbibed culture of the business is also taken into account. For
example, if the corporate structure is organized to keep senior management in the
dark regarding information, this would be an indication of a culture designed to elude
law enforcement.
In some cases, there may be authorization from the corporate itself to enter into an
unethical business or to commit an unethical act in order to achieve an end goal. An
example of this would be the business of recovery, wherein such acts may be
sanctioned by the organization and there may be hiring of anti-social elements.
Hence, there should exist no reason as to why criminal law jurisprudence should not
be applicable on such corporations as they can have a mind of their own and may also
have an environment where in crime is not only accepted, but nurtured. This concept
is yet to take root in Indian criminal law jurisprudence, as there exist various statues
where such corporate criminal liability has not been contemplated. Such inadequacies
have been mentioned in the next section.
STATUTORY INADEQUACY WITH RESPECT TO CORPORATE CRIMINAL
LIABILITY
Indian statues as they still make only the officials responsible for the act criminally
liable and not the corporate itself. Instances of this are:
Sections. 63, 68, 203, etcetera, of the Indian Companies Act795, where in only
the officials of companies are held liable and not the company itself; the same
is also seen in various other Indian statutes and norms (Such as for example
the takeover code796)
The various sections of the Indian Penal Code that deal with compulsory
imprisonment do not take into account corporations since such sanctions
cannot work against corporations.
There are various other Indian statues that also suffer from the same inadequacies,
but, with progress of times, certain positive changes are entering the Indian legal
scene.
795
Indian Companies Act, 1956

S.E.B.I. (Substantial Acquisitions of Shares and Takeovers) Regulations 2011;
Accessible at https://www.pwc.in/assets/pdfs/services/m-a-takeover-book-final-lowres.pdf, last
accessed on 22nd March 2016
796
250
CONCLUSION
Corporations are not legal persons with constitutional rights and freedoms
of their own, but legal fictions that we created and must therefore control.
- Kalle Lassn
From the above cases and their respective judgments, it can be seen that the question
of whether or not a corporation can be held criminally liable has been answered, and
that the corporation can be held liable in criminal cases. At one time such an existence
of a separate legal entity of a company would be exploited by individual to their benefit,
but now such instances are punishable797.
However, there are still numerous statutes that are still left to be amended to remove
all doubt from the same. We cannot rely only on judicial interpretations, as they can
change from one instance to the next. There must be concrete changes that must be
implemented, that can result in a stronger, and safer corporate world. Moreover, the
Legislature should also look at other punishments that should accompany fines, such
as temporary closure, sanctions, de-listing, or corporate death.798 The legislature must
be active in this regard, as relying on judicial precedent hinders social progress, as till
then some acts shall still go unpunished.
REFERENCES
Corporate Criminal Liability Yash Karunakaran.
Holding Corporations Directly Responsible For Their Criminal Acts: An
Argument Abhishek Anand.
Principles of Criminal Law A. Ashworth.
Corporate Criminal Liability: What Purpose Does It Serve? V.S. Khanna.
Corporate Criminal Liability OBrian.
Beyond Fines: Innovative Corporate Sentences Under Federal Sentencing
Guidelines R.S. Gruner.
The Criminal Liability of Corporations and Other Groups: A Comparative View
L.H. Leigh.
Non-legal Sanctions in Commercial Relationships David Charney.
Corporate Crime and Sentencing in India: Required Amendments in Law
Angira Singhvi.
Corporate Criminal Liability: Evolution of the Concept K. Balakrishnan.
Russel on Crime W.O. Russel.
Corporations and Criminal Responsibility Celia Wells.
The Choice between Enterprise and Personal Liability for Accidents Lewis A.
Kornhauser.
Criminology Siegel L.J.
Criminal Liability of Corporations: Does the Old Order Need to Change Abhyudaya Agarwal.
797
798
Supra note 780

Supra note 791
251
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VOLUME 01 ISSUE 02 JULY 2016

VOLUME 01 ISSUE 02 JULY 2016

ISSN 2455-9822 (ONLINE)

MRS. DEVIKA RANA

(PRINCIPAL, SIDDHARTHA LAW COLLEGE, DEHRADUN)

(ASSISTANT PROFESSOR, SIDDHARTHA LAW COLLEGE,

MRS. REETA RAUTELA

MR. MOHIT NEGI

VOLUME 01 ISSUE 02 JULY 2016

Cite this issue as 02 TPJ (2016)