GLCT) Is As Old As the Institution

FOREWORD My association with the Government Law College, Thrissur (GLCT) is as old as the institution. I remember with a sense of pride that I have been invited to all the important academic events organised by the college over a period of more than two decades. My visits to the college, including the one for delivering the prestigious C. Achyutha Menon Memorial Lecture, always left indelible impressions in my mind. Each visit to GLCT has strengthened my bonds- both emotional and intellectual- with the faculty and students of the institution. I have always felt that this institution of legal learning has great potential to emerge as a centre of excellence

These recollections rushed to my mind when I have been asked to associate with the launching of an academic journal under the auspices of the Centre of Economics, Development and Law, an initiative of GLCT. What baffled me initially was the title Elenchus Law Review (Elen.LR), and, I am sure, I may not be the only one to be so baffled. My attempt to unravel the mystery behind the title convinced me that it is the most appropriate title for an academic journal. Elenchus is a dialectical method in the Socratic tradition, which has been defined as „a form of inquiry and discussion between individuals based on asking and answering questions to stimulate critical thinking and to illuminate ideas‟. The aim of Elenchus, according to Richard Robinson, is „to wake men out of their dogmatic slumber into genuine intellectual curiosity‟.

Elenchus Law Review describes itself as an inter-disciplinary law review. Inter- disciplinary approach, contrary to what is commonly assumed, is not a current development. This is what the great jurist Roscoe Pound said more than a century ago: ―The teacher of law should be a student of sociology, economics and politics as well. He should know not only what the courts decide and the legal principles by which they decide, but quite as much the circumstances and conditions, social and economic, to which these principles are to be applied.‖

However even after a century interdisciplinary approach is still in its infancy, especially among legal academics mainly because they neither understood nor knew how to use the quantitative and statistical methods developed by the social scientists. Incidentally one of the papers included in the inaugural issue of the Elen.LR deals with the „methodological challenges while one attempts to cross beyond disciplinary boundaries academically‟. It is well to remember that attempts to break down discipline–specific barriers sometimes runs the risk of eliminating, rather than integrating, disciplines. This pertains to the need for developing appropriate tools to bring social science expertise 1

into the legal learning environment.

It is gratifying to note that inter-disciplinary research, or rather meta-disciplinary research, heralded as a means to dismantle the walls around academic disciplines, is gathering momentum. The cognitive and social significance of interdisciplinary thinking for students, faculty and professionals is being increasingly recognised. The focus on inter-disciplinarity, which singles out Elen.LR from the run- of- the mill law journals in our country, is a manifestation of that recognition.

Finally before bidding adieu, I must sound a word of caution. It is very easy to start a journal; but to sustain it, maintaining quality, is more than a Herculean task. I am sure that the Elen.LR team is well aware of the bumpy road ahead. With commitment, dedication and determination they will have a smooth ride and reach their destination. Bon Voyage!

Prof. (DR.) N K JAYAKUMAR

PATRON’S NOTE

My heartiest congratulations to the Editorial team of Elenchus Law Review for their first endeavour.

The cultural capital of the state, Thrissur, had put its signature in the arena of legal education only in 1992. The visionaries had dreamt that Government Law College, Thrissur would live up to the challenges of new ages. And I feel proud standing on a 23 year old platform that the institution has grown to such a high level that it has been possible to successfully groom its students into dignified and decent persons and competent professionals. In spite of being the youngest among the Government Law Colleges, it has nurtured excellent professionals for the future.

The institution went through a whole series of development over the years resulting in the establishment of a new high tech library with a well-equipped cyber station having various electronic data bases which are essential for a law student to be self-equipped with all professional tactics. We are privileged to have four academic centres of excellence with the aid and support of the government. Centre for business law, Dr. A. T. Markose Chair on advanced legal studies, Centre for Law, Economy and Development and Centre for Para Legal training and institutional ADR centre distinguishes the institution from the rest of its kind. Students get ample opportunities to develop their skills by indulging in the activities of these centres and thus materialises the principle, learning by doing. National trial advocacy and moot court competitions are organized in a splendid manner with the full support of the students and committed team of faculty. Student lawyers are trained to scale up their professional skills and capacity through an integrated mechanism of trial advocacy and moot court. We strive to provide our students with every opportunity of joyful learning. Our aim is to bring out their potential in order to help them achieve their aspirations. We have excellent faculty as well as facilities for giving opportunity to excel in all fields. I am extremely proud of our students and we enjoy working together like a big family. We would like each of our students to be role models for their communities and become future leaders of our country.

A long cherished ambition is being materialised by the launch of Elenchus Law Review. Elenchus law review is a peer-reviewed interdisciplinary journal which aims at prospering the aesthetic skills of the budding professionals. The journal amply shares the views and opinions of the student academicia and legal fraternity in a critical

perspective. It aims to promote research and writing centred on the theme of Justice to enliven the practical content of life.

As the patron of the journal I take this opportunity to express my sincere gratitude towards each and every member of the editorial board for bringing laurels and glory to the institution. I hope this journal will serve as an inspiration and encourage and motivate the student community for similar future ventures. Thank you…

Prof. (DR.) MERCY THEKKEKKARA Principal, Government Law College, Thrissur

In Focus

Earthing with Expectation

Mathew A Varghese

Post Novartis Agenda to Curb Patenting of Known Substances

K M Gopakumar , Third World Network

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‘EARTHING’1 WITH EXPECTATIONS

Mathew A Varghese2

Multi-storey apartments have proliferated, in the Kakkanad region. A new „site‟ appears almost every week and the finished and partially finished structures are the most visible symbols of transformation in the region. The advertised intention is catering to the needs of information technology spaces that are getting developed. The majority of these are developed by Malayali corporates based in metropolitan cities in India and some who are based overseas. Though Harilal (2003) argues that the construction boom started off after the mid nineteen seventies as a result of overseas remittances, the contemporary process has not been a logical follow through.3

Instead, this is directly linked to the post nineties economic policies and the growing role of the state as the promoter of corporate order. Bhaduri and Nayyar (1999) suggest that neoliberal Indian state has been both a continuation and reconfiguration of the nexus between corporate business and the state.4 “These groups have in fact determined the direction of reforms since the nineteen nineties with phenomenal state support” Corbridge and Harris (2000).5 In the newly urbanising places in question, as Harvey (2003) argues the „accumulation by dispossession‟ has been buffered out/watered away to a great extent by state intervention with respect to compensations, labour rights, or

1 Used in the sense of earthing apparatuses in electrical installations that earths out any surge and maintains the balance.

2 Dr. Mathew A. Varghese is currently working as Assistant Professor (FIP Substitute), Department of Political Science, Maharajas College, Ernakulam. He was awarded a Ph.D from the University of Bergen, Norway for his thesis “Spatial Reconfigurations and New Social Formations: The Contemporary Urban Context of Kerala” in the year 2013.

3 Harilal, K.N. and K. J. Joseph, „Stagnation and Revival of Kerala Economy: An Open economy Perspective‟, Economic and Political Weekly, Vol. 38, No. 23, Jun. 7-13, 2003: 2286-2294.

4 Bhaduri, Amit and Deepak Nayyar, An Intelligent Person‘s Guide to Liberalization, New Delhi: Penguin Books, 1999.

5 Corbridge, Stuart and John Harriss, Reinventing India, Polity Press: Cambridge, 2000.

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drawing of frameworks.6 But these do not curtail financial reforms that provide easy routes for real estate investment. Unlike some of the overtly violent processes through which real estate business got established in cities like Bombay, as represented in popular usages like „mafia raj,‟7 here these evolved by getting embedded in the social capital8. With infrastructural facilities evenly spread out, the sector fast became the major employer in fields like construction, especially a situation from which secure jobs and primary sectors of production had been going out. In addition the migrant manual workers who flowed into such spaces too saw themselves co-opted in a relatively welfarist order9.

More significant is the involvement of those who could be categorised middle men, the facilitators of land based real estate processes. The characteristic roles played by their informal networks as well as the conditions offered by a welfarist infrastructure have spread out corporate investments evenly and co-opted people in a hegemonic process. Through case materials from the urban scene in Kakkanad, the paper intends to communicate how neoliberalism becomes embedded and generates encompassing processes.

Birth of a Flat: A Case of „Entrepreneurialism‟

A conversation at the trade union office in Kizhakkambalam, a village adjoining the newly urbanising zone east of Ernakulam, was peppered with reminiscences. After the

6 Harvey, David, The New Imperialism, Oxford: Oxford University Press, 2003.

7 This involves a combined rule of powerful people, their muscle men and local encroachers who operate in connivance with revenue and police officials. Such activities have often become part of the processes at a ater stage, but were never the modes of establishment in Kerala. For certain reports: „Mafia selling Night Safari land‟, The Tribune, 2007-07-03; Indu Bharti, „Usurpation of the State: Coal Mafia in Bihar‟, Economic and Political Weekly. Vol. 24, No. 42, Oct. 21, 1989 at p.2353; „Land mafia buries lake, encroaches govt land‟ Deccan Herald, Oct. 10, 2008 available at http://archive.deccanherald.com/Content/Oct102008/district2008100994331.asp [accessed on: 24 October 2014]

8 The sum total of resources that accrue to an individual by virtue of possessing a durable network of more of less institutional relationships with mutual acquaintance and recognition, See Bourdieu, Pierre, and Wacquant, Loic J. D., An Invitation to Reflexive Sociology, University Of Chicago Press, 1992.

9 The newly introduced Kerala Migrant Workers Welfare Scheme 2010 provides welfare measures to the migrant workers who come to Kerala from other states/Union territories.

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occasional „loading-unloading‟10 work, the evening routine would be to step out, relax for a while in one of the fresh water ponds, go fishing in the Kadambra, or laze around the green paddy fields that marked the place „once‟. But now, even though the money they get is more and the work, more frequent, the evening routines have changed. Much of those routines and leisure are „nostalgically recalled‟.

The „nostalgia‟ is about the question of the imminence of forgetting or about a certain kind of absence that Milan Kundera11 wrote about. The truth is that the agricultural milieu, mercantile orders or the everyday routines, from where reminiscences draw from, are not too „past‟. In fact the scenes had been alive even three years back. Nostalgic reminiscences often became backdrops to the expectations and excitements about „today,‟ compelled to sever itself abruptly and radically from the „yesterday‟. The impossibility to reflect on the contemporary went together with the possibility to narrate the past. As Jameson (2001) puts forward, nostalgia in the sense can also be understood as symptomatic of societies „incapable of dealing with time and history‟.12 Above all it suggests a delinking or severance of relationship with the then and there and personalised and euphoric packaging of the sense of place into flashbacks to a „past‟. There was the case of a youngster who dropped in at the union office at Kakkanad. He had come here to meet some of the union members to talk about an important issue. He, like many other youngsters had found a vocation in small contracts and land brokerage two years back, following the new boom in land prices. Presently he wanted to enter into a „fair deal‟ with some of the union members over the matter of unloading some tiles. The real unloading would be done by three Bihari migrant labourers and the union members would get a share as part of the informal „contract‟.

Social relations at a given locality are the key to any type of brokerage as he claims. One basically knows people who know others and who can eventually link up with a major builder or some other entrepreneur in the urbanising zones of Kakkanad. Before registration of a certain sale, the land could pass through several hands bringing in margin money to middle men like him. He was disappointed with the present

10 Unionised sector that deals with different forms of shifting, transportations, cuttings, removals etc. for private as well as public purposes. The Act connected with, Kerala Loading and Unloading Act 2002, has precise definitions, available at www.kerala.gov.in/dept_lab/act1.pdf [accessed on 24 Ocober 2014].

11Milan Kundera, Ignorance, Harper Collins; 1st edition, October 1, 2002.

12 Jameson, Fredric, „Postmodernism and Consumer Society‟, The Norton Anthology of Theory and Criticism, Vincent B. Leitch, et al. (edn.), New York: Norton, 2001.

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legislations by the then left government. This has reduced the space for informal arrangements and marichu kachavadam13. Transfer of land through authorization, or power of attorney has been restricted, unless the parties are related. Informal practices in land deals, that tempted adventurous youngsters and others into this business, have been curbed. Many are returning to their erstwhile professions. They cannot be happy with modest income, in the context of burgeoning money flows into newly urbanising zones and visible signs of material wealth, whether represented by gaudy houses or profusion of automobiles.

Our young entrepreneur describes compulsory norms [like stipulations on minimum road width and Floor Area Ratio (FAR)] as vikasna-virudham (anti- progress/development). His acquaintances in the business are carry-overs from the regular evening conversations, as well as routine gatherings at the several art and cultural forums. As represented by the processes in which middle men like him get into and the contemporary role of „unions‟ as facilitators, there are radical shifts in roles and expectations in the face of futuristic growth in the region. The changes are about how people participate or incorporate in the present against what is delegated to the past or showcased away as nostalgia. The reasons are grounded and local and the capital from erstwhile relationships feed into configurations in the making that escape earlier forms of placedness.

The different stages in the birth of a „flat‟14 start with the finding of a suitable location. In one of the cases narrated, the initial buyers were a retired government employee and a storekeeper from the locality, who turned „entrepreneurs‟. The „entrepreneurs‟ discovered a potential seller using their knowledge about the person as well as his social background.

There was an acre of land (minimum area for a high rise being half an acre) belonging to a person hailing from the southern region of Kerala. His father was one of the many who went to Persia (going to Persia is a popular way people refer to pre-gulf oil boom migrations to the Arabian Gulf region), and married a Baghdadi. He bought land in the present location and built a house here, but never bothered to occupy. Instead this was

13 Transacting, (in this case „land‟) several times, before actual registration. Each transaction involves a commission.

14 A flat refers to any of the many multi-storey apartments that are being built for the purpose of „living‟.

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given out for rent. He as well as all his relatives became expatriates in the United States15 . . During what was perceived as a major land boom, in year 2005, our ‗entrepreneurs‘ discovered a potential seller in the absentee owner. Quick contact was made by one of them. The potential of ‗unused‘ land as a ‗site‘ was immediately conveyed. Besides, the huge monetary gain could be used to purchase much more land in his native place where land price remained lower. Thus the negotiations took place. There was no need of additional brokerage as the buyers were all from the same area.

Once a deal was struck; money got pooled in and the property was bought with the help of a loan. The idea was to follow the trend and invest money in a high rise flat. But then hindrances were perceived by this collective who were not professional builders either. The new panchayat rules for building were already in place and a lump sum of Rupees 36 Lakh (3600000) was to be paid to the local body as fees for construction. In addition different sanctions were needed like ones from the Fire Department, Aviation (because of the proximity to the airport), and the Pollution Control Board.

In addition, the construction per day would cost Rupees two and a half lakh (250000). This was a big amount and the local labour unions had to be co-opted and hence paid a larger wage (Rs.350 a day per person as against less than half this amount for the majority migrant labourers who had started to come in by the latter half of the 90s). Because of all these difficulties the buyers decided to sell off the land to a North Indian contact. The buyer offered them an amount which would avail to them some profit over what had been spent. The new buyer was more of a professional builder16 consortium from New Bombay who had easy access to funds like the private equities (the provisions for which have been relaxed since the nineties) as well as black money (unaccounted money).

15 A large number from Southern Parts of Kerala, like Tiruvalla have become expatriates. Lots of houses remain locked in these parts.

16 DLF (Delhi Lease and Finance started in 1946), Shobha group, Confident group (Bangalore based Malayali), Mather etc. are some of the major builders here.

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Even then advertising had to wait because of the phenomenal rise in the cost of materials like iron needed for initial piling and pile capping17 (which is the major work). There were around 60 labourers at this point and all were from the state of Maharashtra. They usually accompany major builders. All of them have pools of such labourers. Buyers, who are relatively fixed, like in the present case, are rare as they seldom have embedded resources like money and labour. So they eventually become ―earths‖.

The labourers find wages and working conditions in Kerala extremely friendly when compared to their home grounds as well as some of the major metropolitan centers. The local unions had already fixed a ratio of migrant labourers against the union (7:3 in the case of piling work). What the union members demand is popularly called ‗nokku kooli‘ (literally meaning wages for the on-looker!). The process suggests a change of role as well as the evolution of unions as pools of arbiters in such events. One of the buyers even says that the elected local bodies have been co-opted into the process. Some even demand money from the buyers for local body activities.

The social contacts of the first buyers are still maintained by the new builder for needs like arranging living spaces for the labourers as well as selling some of the units (the selling in almost all cases happens before building and housing loans are made available by the builder). Some of those who were involved with the project say that both the recent recession in the U.S as well as the need to regularize un-accounted money, should work well for the completion. Accordingly overseas exhibitions in the US and other places target expatriates who are drawn by prospects of investment.

The case, the subject of gossip on occasions, became predominantly a case of „entrepreneurialism‟, which has a positive overtone in these places. But what often are not too visible are the whole sets of relationships that come into play. And this is not about an inert transplantation of relationships, but relationships replete with role reversals and rationalisations that take on a life of their own. They draw on historical investments in social capital for the purpose. „Entrepreneurialism‟ becomes an everyday process through which ends can justify means ever more and generate the logic for major changes in the state dynamic itself. Rather, the forms the state is acquiring take life amidst such processes.

17 Often sited as environmentally damaging as the process dredges out dead soil as well as affects water tables and natural springs. Water scarcities are beginning to be reported from places around Kakkanad.

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Of „Earthing‟ and New Brokers: Land brokerage as such is nothing new. But what is „contemporary‟ and special are the multiplying levels of participation as well as the ramifications brokerage undergoes at present. The routines seem to have undergone major transformation during the last five years. The number of youngsters who end up in informal sectors linked with land transactions has increased several folds. And noticeably, large numbers of youngsters have assumed occupations like brokerage that had been the domain of the middle aged, the retired, or the un-educated. The reference here is mainly to the more local transactions involving people in the same locality or nearby areas, and not about the more formalised brokerage-firms (which could have implications on the long run). But the people involved find themselves implicated in processes that extend beyond the local.

Among the several titles or roles that youngsters have assumed of late are brokers, collectors, real estate employees, and goondas18 (thugs). All of these feature at one point or another in land transactions which have multiplied several folds. The nature of labour and the necessary relationships may be presenting/structuring new norms of job relations and relationships in public and private spaces.

Brokerage, as an occupational option, kick started among young school drop-outs and the jobless much before the current real estate boom, which runs parallel to the current urbanisation programmes centered on the development of Special Economic Zones and ports. During the period (end of the eighties–the beginning of the Nineties when neoliberal policies were getting implemented at the national level) most of the village level transactions had been quite informal. Though legal norms had been in place with regard to processes like the registration of transactions and conversion of erstwhile paddy fields, the enforcement lacked rigor.

Lukose (2006) concludes that people had started dividing vast stretches of paddy fields into „plots‟, by the end of seventies when there was a major transformation in patterns

18 The Kerala Anti-Social Activities (Prevention) Act 2007 defines a ''goonda'' as ''a person who indulges in any anti-social activity or promotes or abets any illegal activity which are harmful for the maintenance of the public order directly or indirectly and includes a bootlegger, a counterfeiter, a depredator of environment, a digital data and copy right pirate, a drug offender, a hawala racketeer, a hired ruffian, rowdy, an immoral traffic offender, a loan shark or a property grabber''.

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and levels of consumption and cost of living19. In certain regions acute shortage of labour was felt after gulf migrations. Besides, there was increased pressure on the cooperative sector that provided credit for agriculture after land reforms, towards the end of eighties20. This practice got much exaggerated all over Kerala during the structural adjustments of the nineties when agriculture was widely considered „un- profitable‟ especially in the food producing sectors. Sainath (2013) identifies that the phenomenon in Kerala coincides with much disastrous fall-outs in the form of farmer suicides and agricultural indebtedness in the rest of India.21 But in the course of such practices much of the existing fields were either water logged or cut off from irrigation. Even though there were minor tussles there was never a concerted opposition, nor general calls to protect agriculture.

At the same time the economic life of the people has been undergoing a major transformation with the disappearance of permanent jobs, diminishing support for agriculture, and the rise in the cost of education and health. Talks at homes and public spaces like kavalas (Junctions) reflect these new concerns. The worst of these often get published as „human interest stories‟ in the media. The media itself had transformed, to be dominated by private visual media by the 1990s22. The events in family life like birth, school enrolment, and marriage seem to be gaining new dimensions in thoughts and discussion. For instance, in the case of marriages, there had been shared concerns, cutting across these regions, about the cost of marriage. These have given way to grand feasts23 and exorbitant dowries of an unprecedented scale. This has been especially so

19 Lukose, Ritty., „Consuming Globalization: Youth and Gender in Kerala, India‟ , Journal of Social History 38.4: 915-935, 2005.

20 Reports in Nirakathir, Kerala Shastra Sahitya Parishad (KSSP) supplement.

21 Suicides and indebtedness were reported from Wayanad or Idukki as well. These are regions where people have been more dependent on farming both in the cash crop and food crop sectors. But the tendency was halted to a great extent by symptomatic solutions by leftist governments like institution of Debt Relief Commissions and consequent debt relief measures. Sainath P, „Farm Suicide Trends in 2012 Remain Dismal‟. The Hindu, June 2009, 2013, See also Chandrasekhar, C.P. and Jayati Ghosh, The Market that Failed: A Decade of Neoliberal Economic Reforms in India, Leftword Books: New Delhi, 2002; Agricultural Statistics at a Glance, 2006, available at http://agricoop.nic.in/agristatistics.htm [accessed on: 24 October 2014].

22 The first private TV Channel, Asianet, commenced operations by the end of 1992 and started transmission by August 1993.

23 Such feasts until two decades back were organised either in one‟s own yard or at one of the relatively open places which were not as compartmentalized, physically. The organisation, the preparation, and the serving, at feasts were all done by friends and acquaintances. Only the most necessary items which were not available locally had to be bought. At present feasts are increasingly outsourced to catering groups or in cases they are not, they don‟t involve as much local participation and the resources available locally are fewer. 14

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after the gulf migrations of the seventies. Many in the village have land, but the land is increasingly left fallow, and many have to deal with an acute liquidity crunch. Small savings had been the norm earlier. But whatever remains in such reserves is fast depleting, and the earnings of the older generation as pension are proving inadequate for the new economic life and new needs.

It is in such a context and in the general context of unemployment, even of well qualified people, Aravindan (2006) that the young males of the aforementioned category began straying into new career avenues that surfaced.24 Thus contemporary forms of brokerage are initiated at the kavalas and chaayakkadas25 frequented by the young and the old of the region. These spaces had once been part of the political public sphere. Conversations that took place in such spaces invariably concerned the everyday. These have now become sites of new interventions.

The standard gambit rests on initial queries to identify „financial need‟. Then the talk moves to certain unrecognised assets that are at hand viz. land which is presently lying fallow but holding immense potential thanks to the imminence of vikasanam, and proximity to facilities (ranging from roads to the Airport; banks to the Container Terminal). Even if the land is cultivated, the financial returns would be inadequate to address the new pressures of life. The youngsters with contacts outside the region then seek potential buyers.

The availability of land appears to have gone up. In the local context both parties to a deal could be bound by parameters of prior acquaintance and could be informed of the mutual everyday needs. Those identified as potential sellers may have apprehensions about the deal, and may decide to opt out while their neighbours go ahead with similar deals. In such cases, when the land around has been sold and walled up, the owners of unsold properties could feel cramped for space and restricted by the reorganization of adjacent land. Any productive activity on their land becomes impossible.

In due course, such people get ready to sell their land as well. This is where the young brokers are more successful. They present a case telling the seller that there is no more demand and that the price that they might get is much lower that what they would have

24 Aravindan, K P (edn.), Kerala Padanam (in Malayalam), KSSP, Thiruvananthapuram, 2006.

25 These are small village hotels often serving coffee, tea, and a regular set of snacks. 15

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got before. Thus the broker ends up with more commission (usually three percent of one third of the total cost, which is usually advanced by the buyer). Many youngsters earn liquid cash this way and the news spreads among the community of these young brokers. Even when a transaction is not made a „token,‟ is earned, which is a nominal amount that both the seller and buyer pay informally to the broker.

Brokerage becomes more sophisticated during the second phase. Bigger brokers from elsewhere make their entry. Many of the local brokers become informants for the bigger ones, as the new entrants need local contacts. In the improvised and almost standardized jargon of the trade, the local contact becomes the „earth‟ (in the sense of „Earthing‟26as in electrical installations). The local person literally earths his most accomplished patron. A Karaar (deal) is entered into which parties like the seller, the earth, the broker, and the buyer, involve in contexts like „familial needs‟. Major links in this network are the village or revenue officials who are generally passive accomplices, but turn into local earths occasionally. Their familiarity and grip on „land records‟ add to their value, and their involvement guarantees some extra income. In most cases after a small stint of apprenticeship as earth, many of the youngsters graduate as fully fledged brokers who are more mobile and can go in search of land elsewhere. Promotional rhetoric in an intimate local idiom, the ability to annotate new developments within the local context, and familiarity with the local people and their cultural sensitivities lend an edge to this kind of home-grown brokerage.

With experience, local brokerage gains considerable subtlety, and often properties change several hands (marichuvilkkal) on the strength of semi-formal agreements, before finalization and formal registration of the sale. A particular property may also be showcased for a while as „in demand‟, for a manipulated price spiral.

By the time of the present land boom, most of the land had been parceled into plots as ready products for the land market and locals generally had become used to the idea of land as commodity. More money began coming in with the arrival of Non Resident Indian money, into the real estate business especially after the nineties. With the flood of money, criminal gangs mushroomed to carry out tasks like the filling and leveling of land. Such activities involved the circumvention of legal restrictions, and hence would have been difficult for the transacting parties to take up on their own. Part of the money involved in land transactions would have to be diverted to such gangs comprising

26 Often houses have such visible „Earthing‟ structures-the term has been localized for long. 16

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unemployed youngsters, and at a later stage, to youngsters who found this to be an attractive career option.

Village officers, government officials, and the police got more incorporated in the process to the extent that such involvement got naturalised to the highest possible extent. Real Estate activities swelled the escalating volumes of money in circulation. Much of such activity being on the wrong side of the law – but enjoying bureaucratic patronage and involvement -- developed into a preferred channel for the circulation of unaccounted money. Of course, the new activities generated concerns, fears, and apprehensions in private and public spaces. The much needed legitimations came from a newly spawned breed of god men/women. They could give a spiritual aura to economic activities and desires of a new kind. They, and their adherents, themselves were immersed in extravagance or dreams and promises of extravagance. Religious assertions, like the resistance movements, are produced out of the needs of changing social relations. Common to all the forms of new religious assertions, whether these be represented by god-women or god-men, community consolidations or spiritual exercises, is the promise of alternative spaces. They offer prophylactic for crisis, social disintegration, decadence or disenchantment in the shape of universal love, sense of solidarity, or promise of moral order. They counterpose spiritual spaces against the social structure.

Kapferer (2005: 9) states that the growth and reinforcement of organisational apparatus gains them state-like potencies with no reciprocal obligations and hides the exclusion of people de facto and de jure from the decision making process, through forms of inclusions.27 Foucault (1979, 1978) further advances the argument that the spiritual exercises and the arts of living discipline the crisis ridden social body by asocial rationalisations and optimisation of time and space, whereby they exercise bio-power.28 They school people in self-government that produces individuated bodies that fit into new demands of work and consumption. The liminoid states of new religiosities legitimate social structures through opposition.

27 Kapferer Bruce, „New Formations of Power, the Oligarchic Corporate State, and Anthropological Ideological Discourse‟, Anthropological Theory. Sage Publications, 2005.

28 Foucault, Michel, The History of Sexuality: Volume 1: An Introduction, Trans. Robert Hurley, New York: Vintage Books, 1978; Foucault, Michel, Discipline and Punish: The Birth of the Prison. New York: Vintage Books, 1979.

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Of late, the State Government has taken steps to amend the land registration rules in order to stem the flow of black money and the corrupt practices prevailing in land registration cases. Until recently primary contract documents did not need to be presented at the time of registration. But according to the new amendments to land registration rules, the primary contract document should compulsorily be presented. This would bring the actual transaction value into the government records. A fair price categorization has been made to lay down market value brackets for land. The indices for the determination of fair price include the nature of land, and proximity to different kinds of roads. The new classification has been published and made available to Village Offices for verification and monitoring.

The rise in the number of criminal gangs, popularized by dailies, the unaffordable prices of land and material, along with the efforts to „order‟ the process (fixing fair values and new registration rules) have triggered the consolidation of all the parties involved in land deals. These networks, by virtue of their inclination to violence, have attracted the appellation, „mafia,‟ which has been adopted and standardized by the media, often with romantic overtones. Many of the major builders and corporate groups have got hold of large tracts of land through well functioning networks of brokers. The boom has reconfigured land and priced it beyond the reach of most people. Even the fixation of the fair price is attributed by some to a master plan. But this may be discounted as it does not, in any manner, figure in the complex narrative constituted by the ingenious consolidation of the different players that constitute the land mafia.

In this situation criminalization itself becomes a portrayal of what went wrong with the system, very much like portrayals of the recent recession as „what went wrong‟29. Thus just as markets need correction in the shape of state resources, criminalization necessitates correction in the form of ordering and security. In many ways brokerage in the way portrayed here represents a liminal phase between the crisis of the state as it has been (in the context of neoliberal centralisations and resource constraints) and the corrective (re-ordering of the state within the neo liberal order). The everyday aspect of the „caucus‟, that becomes „mafia‟, constitutes a pool of protocols or “normative communitas”30 which involves a necessary distancing from any ideological implication

29 The Crash: What Went Wrong? The Washington Post examines the origins of the economic crisis, available at http://www.washingtonpost.com/wp- srv/business/risk/index.html?sid=ST2008121600014 [accessed on: 24 October 2014].

30 Turner, Victor. Dramas, Fields, and Metaphors: Symbolic Action in Human Society. Ithaca, NY: Cornell University, 1975. 18

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in the political public sphere while still drawing on social capital in the face of crisis/change. Besides, it refers to one of the sites where the new state form, in the making, certainly draws its logic and legitimation from.

It is often the myths woven around the major signifiers, Turner (1969) argues, the institutional apparatus or the liminoid phase they offer the urban reforms those take the form of barricades.31 “The liminoid phase into which people withdraw voluntarily from their everyday life and thereby escape an alienating social system establishes a state akin to communitas” further asserts Turner (1992).32 So here a full unmediated communication is established or a communion attained, with the social system. Thus the „individual‟ is often isolated from the society and schooled for the outside in these liminoid spaces. Kapferer (2005: 8-10) suggests here, the states of exception and exclusive spaces become sovereign spaces, that instead of augmenting the existing state apparatus, erect corporate bodies with state-like potencies.33 In the process these sovereign spaces constitute themselves outside the existing order, and in this exceptional state create zones of indistinction between outside and inside, claims Agamben (1998: 174-177).34 It is a “fundamental localization” which is not limited to inside or outside normality or chaos, but the threshold between the two. The individual is sought to be acclimatized to the alienating outside while constituting himself/herself in this exceptional state.

With the breakdown of relationship with the signifiers, people crave for new rationalizations in order to constitute themselves in the given social structure. The omniscient circulation of wealth, materialisation of capital and futuristic discourse of urbanisation has created new standards of lifestyle. The market has taken the products further away from the relations of production. Advertisements and media work together to manufacture needs which, in the context of alienation from production, need justifications.

31 Turner, Victor, The Ritual Process: Structure and Anti-Structure, Chicago: Aldine, 1969.

32 Turner, Victor, Blazing the Trail: Way Marks in the Exploration of Symbols, Edith Turner (edn.), London: The University of Arizona Press, 1992.

33 Kapferer Bruce, „Introduction: Oligarchic Corporations and New State Formations‟, Oligarchs and Oligopolies, Bruce Kapferer (edn.), New York: Berghahn Books, 2005.

34 Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life, Daniel Hellen Roazen (Trans.), California: Stanford University Press, 1998.

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What distinguished35 the political public sphere has been the positioning of public against private interests. This has been a legacy of political movements, spearheaded by the left that effectively led to redistribution of wealth as well as the institution of state forms that have been pitched against a powerful center. Jeevitha Soochika Prashnangal (roughly social welfare index), the rational use of machinery, interest free loans for various purposes, etc. had been frequent topics of discussions in the public sphere. The primacy of such issues had been taken for granted in a social situation that facilitated a certain level of generality thanks to mutually encompassing issues that are extensive with the generation of the political public sphere - says Kideckel (2009).36

The practice of life on everyday basis is seldom a transaction with transnational or globalised conditions as such, mentions Sassen (2003:41-66), as with signifiers that materialise for many against a non-responsive/representative state.37 Protocols of life materialise in spaces where erstwhile „ideas of state‟ become alienated from the „practices of state‟. As a result, the left formations that have historically played the most significant role in the production of those ideas are re-evaluated. Their stances can be deemed archaic while continuing to draw on the material effects. The complaints and criticism of the state against constraints imposed by the center, become subject of coffee table wit. The state is presented as a parasite for the already burdened center.

During the liminal phase, with ideas dissociated from the practices, the state gets evaluated in accordance to the ways individuals are related to new capital and institutions and moreover to chains of expectations. Processes like brokerage also fall in this category. Trade union offices often become facades in the context of the changing face of labour. Those who are members of the union are more often associates of processes like real estate, rather than concerns of better wages or improved work environment. The real labour has been transferred to migrants from other states38. This is a function of the de-territorialising force of capital. This force is about a gamut of processes whereby actors are disembedded or “uprooted” from respective local contexts

35 Unlike other places where the public private contrasts is not evaluated or emphasised to such a degree, See Kideckel, David A, „Citizenship Discourse, Globalization, and Protest: A Postsocialist-Postcolonial Comparison‟, Anthropology of East Europe Review, 27(2): Fall, 2009.

36 Ibid. 37 Sassen, Saskia. „The Repositioning of Citizenship‟. The New Centennial Review, 3(2) 2003: 41-66.

38 On the other hand large labour pools of Malayalis in BPOs, Gulf States, privatized finance etc. exist as fragmented entities, dissociated from any kind of effective unionization.

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and restructured across space and time. The real estate activities that unravel at present becomes important for explaining and analysing de-territorialisations in the contemporary global context. The significance comes out of the coming together of immobile spatial fixities and the fluid capital that moves in and out of the process, that redistributes actors in their new roles and determinations. According to The Communist Manifesto, capitalism dissolves all existing forms. In other words, as Zizek (2010) puts this, no one relies any more on “mechanisms for interpellation of individuals to subjects”.39 There is an institutionalisation of a value neutral free play of ideas or a “blind drive with no symbolic value-form attached”. In the contemporary period, a similar situation is in the making, especially with the severance of state, from the ideas that once enlivened it as a logical extension of the political public sphere.

People espouse signifiers that signify virtualities and “re-create” themselves often against the ideas that once animated the public sphere (the left, protests, trade unionism etc.). Those who were interpellated as subjects to a mutually encompassing public sphere are now bereft of any such holistic order. Thus vikasanam or a new „city‟ can mean different things for different groups and most are immersed in a world of meanings with self-generating truths from everyday lives (as brokers, aspirant parents, contractors, future workers in SEZs etc.). In its neoliberal predicament, exceptional urban orders, through everyday truths, people get ever more incorporated in the corporate processes.40

The systematic corporate takeover of state has been typical of the larger Indian context, whether as the metamorphosis of feudal structures that persisted or corporate inheritance of the metropolitan nerve centers in the North. Monbiot (2000) Argues that the neoliberalising Indian state had already been held captive41 mainly by the corporate structures that empowered themselves during the latter half of 1900s (Tatas, Birlas, Reliance)42. Kapferer (2005) concludes that the Indian state reached a compact with

39 Zizek, Slavoj, Living in the End Times, Verso, 2010.

40 I draw on Bruce Kapferer‟s (2005) work on the subject in a chapter that discusses the theoretical premises.

41 Monbiot, George, Captive State: The Corporate Takeover of Britain, Macmillan, 2000.

42 Emergent capitalists during the pre-independence days, like Samuel Aron or S.S.Codder, never went on to have much of a role in the way the emergent politics shaped the state structure in Kerala, as the Ambanis for instance did. On the other hand the left movements and aspects of reform movements (SNDP for instance was registered under companies act) generated an environment of redistribution and egalitarianism that set a platform for much of the later processes. Gulf migrations post seventies (Lukose 2009) and the post nineties 21

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corporate interests in such spaces. But since the nineties the corporate form nevertheless has been getting ever more entrenched and breaking out of earlier bounds (Kapferer, 2005). In the context the spaces that once got left out of post-colonial state orders are getting arrogated starting from the margins (remote Tribal zones of Orissa or Mining fields in Karnataka). There Das (2004: 227) states: the “infelicities and excuses on the part of the state” become violent exercises of corporate sovereignty.43

Processes unfurl distinctly from other places in India where people confront urban processes. Here the state has never been an alien entity. Instead the everyday functioning of state in localities like the ones studied has been moderated by a political public sphere. So when a new order becomes instituted in the urbanisation drive there is no need for an “excuse”. Instead with the fragmentation of mutually encompassing political processes, the complaints are more of “being left out”. The social orders across places are getting ever more fragmented and eviscerated of anything that suggests an interpellation of people as subjects. Instead as part of a liminal and exceptional order, people device new means of living like contemporary brokerage that draw on their placed-ness, but „earth‟ with expectations.

situation has certainly produced images like the „entrepreneur‟ often against the erstwhile associations with state.

43 Das, Veena and Deborah Poole (eds.), Anthropology in the Margins of the State, School of American Research Press: Santa Fe, 2004.

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POST-NOVARTIS AGENDA TO CURB PATENTING OF KNOWN SUBSTANCES

K M Gopakumar44

The judgment of the Supreme Court on Novartis case put an end to a 10-year-old litigation around the generic availability of anti-cancer medicine Imatinib Mesylate for the treatment of chronic myeloid leukemia (CML), a type of blood cancer. The immediate visible result of the judgment is the uninterrupted supply of the generic versions of Imatinib Mesylate. Currently, generic versions of the medicine are available within the range of Rs. 4000--8000, against the Novartis price of Rs.125,000, from nearly seven Indian companies. The most important implication of the judgment is that the Supreme Court has brought great degree of clarity with regard to the interpretation of the Section 3(d) of the Indian Patents Act.

The judgment has been welcomed and celebrated by government, civil society organisations across the world, intergovernmental organisations like the South Centre and the generic industry. Section 3(d) of the Patents Act is a piece of legislative innovation to effectively address the issue of the extension of patent monopoly by securing multiple patents on the known substance. There were even calls to replicate Section 3(d) in developing countries. This article attempts to analyse the strengths and weaknesses of Section 3(d) in the light of the Supreme Court judgment. It also suggests various measures in the Indian law and policy domains to effectively address the issue of extension of patent monopoly through the patenting of known substances in the post- Novartis context.

Strengths and Weaknesses of Section 3(d) It is important to understand the emergence of Section 3(d) as a legal response to prevent patenting of new forms of already known molecules, also known as evergreening, to assess the implication of the Supreme Court judgment. At the time of

44 K M Gopakumar works with the Third World Network‟s office in New Delhi. He‟s one of India‟s leading health activists and has written on several IP issues implicating access to medicines and access to knowledge.

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introduction of product patent protection in 2005, there was ample evidence regarding the practice of pharmaceutical transnational corporations (TNCs) to seek multiple patents for the same molecule to extend the patent beyond the expiry of the original patent on the molecule. At the end of the transition period in 2005, there were around 10,000 product patent applications pending for the examination. These applications were received to fulfil the mailbox protection obligation under the Article 70 of the TRIPS Agreement. Most of the mailbox applications were claiming patents on known substances including the substance invented prior to 1995, the year TRIPS came into force. Thus the practice of seeking patent protection on the known molecule was one of the overwhelming concerns at the time of the introduction of product patent protection in India.

The policy objective, with regard to scope of patent protection on pharmaceuticals, was to limit the scope of patent protection to new chemical entities (NCEs) to facilitate the generic entry at the earliest by specifically addressing the following issues: Firstly, to provide patent protection only to those molecules invented on or after 1st January 1995 from the mailbox applications; and secondly, to prevent the patenting of known substances invented even on or after 1st January 1995.

Two flexibilities in the TRIPS Agreement provide the policy space for India to achieve the above-mentioned objectives. First, to define the patentability criteria viz. novelty, inventive step and industrial application, in a manner to set high threshold level so that trivial claims are not qualified for patent protection. Second, to make use of the Article 70 of the TRIPS Agreement which states: “There shall be no obligation to restore protection to subject matter which on the date of application of this Agreement for the Member in question has fallen into the public domain”.

From a policy angle an ex ante exclusion of the patenting of known substance should be the first option, because it saves the financial and human resource for the examination of patents. Further, it limits the filing of patent applications seeking patent protection for the known substance. Hence, one of the important demands from the generic industry and various public interest groups including the National Working Group on Patent Laws (NWGPL), which played a prominent role in shaping India‟s post TRIPS patent law, was to limit the patent protection only to the NCEs. The left parties took up this demand during their negotiation with the government on patent law amendment. The government proposed Section 3(d) as a compromise along with the assurance of appointing a technical expert group (TEG) to examine “Whether it would be TRIPS

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(Trade Related Intellectual Property Rights) compatible to limit the grant of patents for pharmaceutical substance to new chemical entity or new medical entity involving one or more inventive steps‖.45 In a way, Section 3(d) was supposed to be a temporary arrangement if the TEG would have done its work sincerely and seriously.

India had the option of explicitly excluding patenting of any substance invented prior to 1st January 1995 from product patent protection. A study by the author shows that by analysing the patent expiry data provided in the United States Food and Drug Administration‟s Orange Book and further research to trace the patent history of NCEs reveal that out of 301 NMEs (New Molecular Entities) approved by the USFDA between 1995 and 2004, 291 were invented prior to 1995.46 An explicit exclusion of inventions prior to 1995 would have put many NCEs approved by USFDA till 2004 out of the patent protection in India.

However, India opted for a more circuitous route of Section 3(d). While implementing the Exclusive Marketing Rights (EMRs) obligations, India used this flexibility to exclude the inventions prior to 1995. Section 24(B) of the EMR stated that in ordered to be eligible for EMR “where an invention has been made in India or in a country other than India before filing such a claim, filed an application for the same invention claiming identical article or substance in a convention country on or after 1st January 1995”. Thus the EMR provision excluded any invention prior to 1995 and removed the possibility of claiming EMR on an invention prior to 1995. However, during the third amendment in 2005 the deadline of 2005 has been ignored conveniently and introduced Section 3(d), which does not exclude either inventions prior to 1995 or patenting of known substance per se.

Section 3(d) itself was taken out by the government from a letter of Justice V R Krishna Iyer, who obtained the language from Veda Raman, the former Controller General of

45 The Technical Expert Group (TEG) on Patent Law Issues was set up by the Government of India, Ministry of Commerce & Industry, Department of Industrial Policy & Promotion vide O. M. No. 12/14/2005-IPR-III dated April 5, 2005. Paragraph 2 of the order mentions the terms of reference: “2. The Group will have the following terms of reference: (a) whether it would be TRIPS compatible to limit the grant of patent for pharmaceutical substance to new chemical entity or to new medical entity involving one or more inventive steps; and (b) whether it would be TRIPS compatible to exclude micro-organisms from patenting.”

46 Sudip Chaudhuri, Chan Park and Gopakumar K. M., Five Years into the Product Patent Regime: India‘s Response, Kajal Bharadwaj (ed.), United Nations Development Programme, December 2010, at p.118 para 3.

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Patents. The language of Section 3(d) is borrowed from the EU Regulation dealing with the data exclusivity provision defining generic medicines, which can be approved without additional data requirement.47 Hence, the legal innovation really lies in the importation of a definition of generic medicine from the EU Directive on Medicinal Product for Human Use, which essentially regulates the marketing approval of medicines, to prevent the patenting of known substance.

Section 3(d) of The Patents Act, 1970 states: ―The following are not inventions within the meaning of this Act: … (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 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”.

The main shortcoming of the Section 3(d) is that it does not shut the door for patenting of known substances and it allows the patenting of salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations, and other derivatives of known substances if they differ significantly in properties with regard to efficacy. Thus the legislation, instead of excluding the patenting of known substances, provided a small opening of patenting of known substances. This opening is complicated by the absence of any definition on the term „efficacy‟. Thus the Section 3(d) does not fully reflect the policy objective of denying patents to known substance even though the Madras High Court clarified the term „efficacy‟ as „therapeutic efficacy‟ in 2007. Further, the court stated: “What the patent applicant is expected to show is, how effective the new discovery made would be in healing a disease/having a good effect on the body‖. However, there was no attempt by the Patent Office to incorporate the interpretation of the High Court into its examination manual and reject patent claims on patenting of known substance in the absence of enhancement of therapeutic efficacy. As a result, patents were granted on known

47 Directive 2004/27/EC Of The European Parliament And Of The Council of 31 March 2004 amending Directive 2001/83/EC on the Community code relating to medicinal products for human use, 2004 O.J (L 136) 34-57.

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substance without any enhancement in the therapeutic efficacy. The Parliamentary Standing Committee on Commerce in its report in 2008 recommended that “The Government should clarify the usage of terms „significantly‟ and „efficacy‟, which form parts of Section 3(d), to clear the ambiguities involved in the interpretation of the said section”. The patent office continues to grant patents on known substances even after the verdict of the Madras High Court.

The Patent Office granted patents to 3470 pharmaceutical products between 2007 and March 2010, and this huge number of patents prima facie makes the case against the effectiveness of Section 3(d) in checking patenting of known substance. A study by the National Intellectual Property Organisation (NIPO) identifies at least 86 patents granted on known substances or combinations of substances bypassing Section 3(d)48. Even though the Patent Office rejected many patents citing Section 3(d), it failed to act as an effective gatekeeping mechanism and translate the legislative intent into practice. The absence of clarity to decide whether the claim satisfies the Section 3(d) and the room for discretion on whether the application qualifies the test of efficacy under the Section 3(d) make the Patent Office, judiciary and government vulnerable to lobbying.

As part of the training of examiners, Indian Patent Office entered into a Memorandum of Understanding (MoU) with various developed country patent offices, including the US Patent and Trademark Office (USPTO) and the European Patent Office (EPO). These trainings lead to importation of the developed country practices and the functional harmonisation of patentability criteria. This has resulted in virtual marginalisation of legislative intent against patenting of known substances.49 Further, judiciary is also subjected to lobbying by the pro-patent groups of the

48 James T.C., „Patent Protection and Innovation: Section 3(d) of the Patents Act and Indian Pharmaceutical Industry‟, NIPO, 2010 available at www.nipoonline.org/section-report.doc.

49 For instance, the Patent Office MoU with the US Patent Office (USPTO) states that: The Parties shall work together in capacity building in Intellectual Property Rights including automation and modernization of Intellectual Property Offices, development of databases, and procedural rationalization and simplification of processing of Intellectual Property applications, inter alia, through the exchange of information on patent data, best practices in patent examination procedures, etc. The two Parties shall cooperate in the training of personnel and human resource development in the area of Intellectual Property Rights with a view to strengthening the working of the Intellectual Property (IP) systems in the two countries, including in patent examination training. As part of the MoU, many patent examiners were trained under USPTO. Hence the manual brings a backdoor harmonisation of patent examination standards with the US and the EU patent examination practices.

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developed countries. George Washington University‟s India Project is a case in point, which brought a large contingent consisting of IP attorneys and IP judges and lobbied with the judiciary in India. Moreover, even the Supreme Court judge who heard the Novartis case had to recues from the case due to his participation in an international conference organised by the IP Owners Association of USA.50 The Supreme Court decision has reinforced the Chennai High Court opinion on the meaning of the word „efficacy‟. „Efficacy‟ now clearly means „therapeutic efficacy‟. The Court clearly rules out any efficacy in terms of properties. The following section summarizes the reasoning of Supreme Court

Supreme Court’s Reasoning There were two questions came up before the Supreme Court. First, the legal validity of the decision of Intellectual Property Appellate Board (IPAB), which rejected Novartis‟s claim for the patent protection on the Beta Crystalline form of Imatinib Mesylate under Section 3 (d) of the Patents Act by IPAB. IPAB accepted Novartis claim on novelty and inventive step but rejected the patent under Section 3 (d). According to Section 3 (d) a patent on known substance cannot be granted unless there is a significant enhancement in the known efficacy. Further, as per the explanation of section 3 (d) 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”.

Second, Natco‟s and Cancer Patient Aid Association‟s (CPAA) legal challenges on the IPAB‟s decision to accept the argument of Novartis with regard to novelty and inventive step on the Beta Crystalline form of Imatinib Mesylate. IPAB modified the decision of the Patent Office order, which rejected Novartis Patent application on multiple grounds including absence of novelty, inventive step and non-satisfaction of

50 Justice Markandey Katju and Justice Dalveer Bhandari, both have recused from the Novartis case. Justice Markandey Katju recused due to his previous publication of the article on the issue and Justice Dalvir Bhandari recused because of the participation in international conferences for judges organized by the US- based Intellectual Property Owners Association (IPOA), whose members include Novartis, among a host of pharmaceutical and IT giants. A group of activists demanded the Government of India to ask the recusal of the judge . See the full text of the activists‟ letter to the Government of India. See http://spicyip.com/2011/09/full- text-of-letter-asking-for-justice.html; See Manoj Mitta, „Novartis case: How two SC judges had recused themselves from the case‟, The Times of India, 2nd April 2013 available at http://timesofindia.indiatimes.com/india/Novartis-case-How-two-SC-judges-had-recused-themselves-from- the-case/articleshow/19334224.cms [accessed on: 15 November 2014]

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Section 3 (d) criteria. Novartis could not file the patent application, which discloses the Imatinib molecule in its patent application filed in developed countries in 1994 known as Zimmerman patent because there was no product patent protection in India. Realizing the market potential, filed the patent application in 1998 in India seeking priority from a patent application filed in 1997 in Switzerland. Natco and CPAA argued that the invention claimed in the 1998 application i.e. the Beta Crystalline form of Imatinib Mesylate is fully disclosed in the 1994 patent application. Further, making a beta crystalline form of salt from the Imatinib molecule is obvious to the person skilled in the art and therefore does not satisfy the inventive step requirement. Even though the Patent Office accepted these arguments IPAB rejected and held the invalidation of the patent only on one ground under Section 3 (d).

At the Supreme Court, Novartis came up with a brand new argument, which is not mentioned, in its patent application filed in 1998. Novartis argued that the invention mentioned in the 1994 patent application is only the Imatinib freebase. Two more inventive steps are required to reach to the Beta Crystalline form of Imatinib Mesylate. First invention is the development of salt from Imatinib freebases and the salt is known as Imatinib Mesylate. The second inventive step is the development of Beta Crystalline form of Imatinib Mesylate from the Imatinib Mesylate. According to Novartis the Zimmerman patent does not disclose these two inventive steps and therefore does not cover the Beta Crystalline form of Imatinib Mesylate claimed in its 1998 patent application.

On the issue of whether Imatinib Mesylate i.e the salt form is disclosed in the Zimmerman patent the court clearly brings out the evidence to show that Zimmerman patent covers not only the Imatinib freebase but also the salt form of Imatinib. Towards this purpose Court found the following points.

Court found the following statement in the Zimmerman‟s patent, which clearly covers both freebase and salt of Imatinib. ―Owing to the close relationship between the novel compounds in free form and in the form of their salts, including those salts that can be used as intermediates, for example in the purification of the novel compounds or for the identification thereof, hereinbefore and hereinafter any reference to the free compounds should be understood as including the corresponding salts, where appropriate and expedient.‖

Court further finds that the Novartis filed the patent application for Beta Crystalline 29

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form of Imatinib Mesylate in the US on January 18, 2000. The US patent for Beta Crystalline form of Imatinib Mesylate was granted to Novartis only after five and a half years on May 17, 2005 following the order of the US Appellate Court dated November 23, 2003.The USPTO initially refused the patent application. Court found out that Novartis launched the medicine in the market much earlier on the basis of the Zimmermann patent and declared to the USFDA that the Zimmerman patent covers “the composition, formulation, and /or method of use of Imatinib Mesylate”.

Further Courts also found that Novartis applied for extension of the patent term of the Zimmerman patent immediately after the obtainment of the market approval for Imatinib Mesylate. According to Court “this application leaves no room for doubt that Imatinib Mesylate, marketed under the name Gleevec, was submitted for drug approval as covered by the Zimmermann patent.”

Court cites the fact that Novartis successfully prevented Natco from marketing its generic version of Imatinib Mesylate in UK on the basis of Zimmerman patents. Court quotes from the order of the US Board of Patent Appeals decision rejecting the USPTO order of refusing patent for Beta Crystalline form of Imatinib Mesylate. The Board of Appeals allows the patent claim on the Beta Crystalline form but states that “In claim 23, Zimmermann recites imatinib, a specific compound within the scope of formula I, or a pharmaceutically acceptable salt thereof. In light of 35 U.S.C. § 282, therefore, we may presume that the specification of the Zimmermann patent teaches any person skilled in the art how to use imatinib, or a pharmaceutically acceptable salt thereof, in a pharmaceutical composition for treating tumours or in a method of treating warm- blooded animals suffering from a tumoral disease.‖

Therefore the Court clearly states: “That Imatinib Mesylate is fully part of the Zimmermann patent is also borne out from another circumstance. It may be noted that after the Zimmermann patent, the appellant applied for, and in several cases obtained, patent in the US not only for the beta and alpha crystalline forms of Imatinib Mesylate, but also for Imatinib in a number of different forms. The appellant, however, never asked for any patent for Imatinib Mesylate in non-crystalline form, for the simple reason that it had always maintained that Imatinib Mesylate is fully a part of the Zimmermann patent and does not call for any separate patent”.

Second, to support its argument regarding the non-coverage Beta Crystalline form of Imatinib Mesylate in the Zimmerman patent Novartis argued that there is a difference 30

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between coverage and disclosure in a patent application. According to Novartis the coverage of a patent application is different from the scope of disclosure of the patent. In simple terms it means that the absence of novelty or inventive steps can be attributed to the steps involved in making Beta Crystalline form of Imatinib Mesylate only if there is a complete disclosure in the Zimmerman patent.

While rejecting that argument the Court said: “The dichotomy that is sought to be drawn between coverage or claim on the one hand and disclosure or enablement or teaching in a patent on the other hand, seems to strike at the very root of the rationale of the law of patent. Under the scheme of patent, a monopoly is granted to a private individual in exchange of the invention being made public so that, at the end of the patent term, the invention may belong to the people at large who may be benefited by it. To say that the coverage in a patent might go much beyond the disclosure thus seems to negate the fundamental rule underlying the grant of patents”.

Court further states: “we would like to say that in this country the law of patent, after the introduction of product patent for all kinds of substances in the patent regime, is in its infancy. We certainly do not wish the law of patent in this country to develop on lines where there may be a vast gap between the coverage and the disclosure under the patent; where the scope of the patent is determined not on the intrinsic worth of the invention but by the artful drafting of its claims by skillful lawyers, and where patents are traded as a commodity not for production and marketing of the patented products but to search for someone who may be sued for infringement of the patent‖.

The Court did not examine whether the so called inventive step of transforming Imatinib Mesylate into Beta Crystalline form of Imatinib Mesylate satisfy the inventive step criterion. According to Court there was no need to examine that because Beta Crystalline form of Imatinib Mesylate is a polymorph and directly attracts Section 3 (d) of the Patents Act, which checks the patenting of known substance.

Third, Novartis „s made two arguments before the Court against the application of Section 3 (d) to evaluate its patent application on Beta Crystalline form of Imatinib Mesylate. First, Novartis argued that Section 3 (d) is a provision of abundant caution and does not apply to invention, which satisfies novelty, inventive step and industrial application i.e. basic patentability criteria. Second, Novartis argued that since there was no known efficacy of Imatinib freebase and Imatinib Mesylate it is not possible to show that Beta Crystalline form of Imatinib has any enhanced efficacy. 31

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Nevertheless, Court rejected both the arguments. Court clearly stated that the legislative intention shows very clearly that in course of the Parliamentary debates, the amendment in section 3(d) was the only provision cited by the Government to allay the fears of the Opposition members concerning the abuses to which a product patent in medicines may be vulnerable. We have, therefore, no doubt that the amendment/addition made in section 3(d) is meant especially. to deal with chemical substances, and more particularly pharmaceutical products. The amended portion of section 3(d) clearly sets up a second tier of qualifying standards for chemical substances/pharmaceutical products in order to leave the door open for true and genuine inventions but, at the same time, to check any attempt at repetitive patenting or extension of the patent term on spurious grounds

On the second issue the Court decided “On facts also we are unable to accept that Imatinib Mesylate or even Imatinib was not a known substance with known efficacy. It is seen above that Imatinib Mesylate was a known substance from the Zimmermann patent. In the NDA submitted by the appellant before the US FDA, it was clearly stated that the drug had undergone extensive preclinical, technical and clinical research‖. Therefore the Court rejected the claim that efficacy of Imatinib Mesylate or even Imatinib is unknown.

Therefore on the question of Section 3 (d) test the Court held that ―it must be held that on the basis of the materials brought before this Court, the subject product, that is, the beta crystalline form of Imatinib Mesylate, fails the test of section 3(d), too, of the Act. 191. We have held that the subject product, the beta crystalline form of Imatinib Mesylate, does not qualify the test of Section 3(d)‖.

Court also noted that fact that on the package the description of the drug includes “each film coated tablet contains: 100mg Imatinib (as Mesylate) and teher was no reference of Beta Crystalline form Imatinib Mesylate.

On the argument that there are two steps involved to develop a Beta Crystaline form of Imatinib Mysylate form the Imatinib freebase court remarked that “… this position is not reflected in the subject application, in which all the references are only to Imatinib in free base form (or to the alpha crystalline form of Imatinib Mesylate in respect of flow properties, thermodynamic stability and lower hygroscopicity)‖.

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On the patent application on Beta Crystalline form of Imatnib Mesylate Court observed that “It may also be stated here that while going through the Zimmermann patent one cannot but feel that it relates to some very serious, important and valuable researches. The subject patent application, on the other hand, appears to be a loosely assembled, cut-and paste job, drawing heavily upon the Zimmermann patent”.

Implications on the Patenting of Known Substance The most important outcome of the Court decision is its implication on the future of patenting of known substances. It is a well-known fact that pharmaceutical MNCs obtain multiple patents on the same molecule. An investigation of the European Competition found that multiple patenting of known substances can delay the generic entry and prevents competition in the pharmaceutical market. The Court clearly recognizes the policy concern with regard to patenting of known substances as reflected in the Section 3 (d) of the Patents Act.

Towards this purpose Court traces the legislative history of Indian Patents Act including the parliamentary debate during the 2005 amendment which introduced Section 3 (d) . Court notes : ―in course of the debate in Parliament, an amendment (by way of addition) in clause (d) of section 3 was proposed by the Government in order to allay the fears of the members from the Opposition concerning the introduction of product patents for pharmaceuticals and agricultural chemicals, and it was on the Government‘s assurance that the proposed amendment in section 3(d) (besides some other changes in the Act) would take care of the apprehensions about the abuse of product patent in medicines and agricultural chemical substances that the Bill was passed by Parliament‖.

Further Court in clear terms states: “the importance of the amendment made in section 3(d), that is, the addition of the opening words in the substantive provision and the insertion of explanation to the substantive provision, cannot be under-estimated. It is seen above that, in course of the Parliamentary debates, the amendment in section 3(d) was the only provision cited by the Government to allay the fears of the Opposition members concerning the abuses to which a product patent in medicines may be vulnerable. We have, therefore, no doubt that the amendment/addition made in section 3(d) is meant especially‖.

The Section 3 (d) of the patent Act States: “―The mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that 33

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substance or the mere discovery of any new property or new use for a known substance or 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. 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”.

One of the important critique with regard to Section 3 (d) is the lack of explanation with regard to the word “efficacy”. According to critiques in the absence of definition of the term “efficacy” may lead to multiple interpretation. The term efficacy can mean technological efficacy, therapeutic efficacy, economic efficacy or efficacy in the physical property of the substance.

The Court agreed with the Madras High Court‟s interpretation of the term and held that : “… the explanation requires the derivative to ―differ significantly in properties with regard to efficacy‖. What is evident, therefore, is that not all advantageous or beneficial properties are relevant, but only such properties that directly relate to efficacy, which in case of medicine, as seen above, is its therapeutic efficacy”. Thus the Court clearly narrows down the meaning of the term efficacy to therapeutic efficacy.

Further the court clearly states that any improvement in the physical property does not pass the Scrutiny of Section 3 (d). The Court stated: “ While dealing with the explanation it must also be kept in mind that each of the different forms mentioned in the explanation have some properties inherent to that form, e. g., solubility to a salt and hygroscopicity to a polymorph. These forms, unless they differ significantly in property with regard to efficacy, are expressly excluded from the definition of ―invention‖. Hence, the mere change of form with properties inherent to that form would not qualify as ―enhancement of efficacy‖ of a known substance. In other words, the explanation is meant to indicate what is not to be considered as therapeutic efficacy‖51. The significance of the Supreme Court judgment lies in the fact it brings great degree of clarity with regard to the term „efficacy‟. The Court interpreted the term to include only „therapeutic efficacy‟ in line with the interpretation of the Madras High Court. It rejected any efficacy claim with regard to the physical property, without any

51 Novartis v. Union of India & Others, Civil Appeal Nos. 2706-2716 OF 2013, at p.91 para 180-181.

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corresponding enhancement in therapeutic efficacy.

The Court thus has narrowed down the interpretational scope for the term „efficacy‟ and limited it to „therapeutic efficacy‟. However, it does not answer or explain what types of elements, which can fall under therapeutic efficacy. For instance, it does not deal with the question whether the reduction in toxicity or enhanced bioavailability can be considered for therapeutic efficacy. Hence, the patent applicant may argue that these elements constitute an enhanced therapeutic efficacy. Another round of litigation may clarify the constituent elements of the therapeutic criteria.

Further, the Section 3(d) makes it possible for the pharmaceutical TNCs seeking patents on fixed dose combination (FDC) of medicines. In certain cases, FDC medicines can fulfil the criteria of therapeutic efficacy under Section 3(d). This does not necessarily mean that such claims would obtain patent because the patent office can still reject such claims on the ground of lack of novelty or inventive step52.

Most importantly, the Court has not examined what are the requirements to prove enhancement in the therapeutic efficacy. Even though questions like whether increased bioavailability or fewer side effects can be considered as an enhancement of therapeutic efficacy were raised, the Court did not answer it. Regarding bioavailability the Supreme Court stated as follows:

―Thus, even if Mr. Grover‘s submission is not taken into consideration on the question of bioavailability, the position that emerges is that just increased bioavailability alone may not necessarily lead to an enhancement of therapeutic efficacy. Whether or not an increase in bioavailability leads to an enhancement of therapeutic efficacy in any given case must be specifically claimed and established by research data‖. (Emphasis supplied)

52 For issues relating to the grant of patents to FDCs, See generally ‗Patents and licences on antiretrovirals: A snapshot‟, UNITAID Report, World Health Organization, 2014; Tapan Ray, „India, China Revoke Four Pharma Patents in A Fortnight: A Double Whammy for MNCs?‟, 12th August 2013 available at http://www.tapanray.in/india-china-revoke-four-pharma-patents-in-a-fortnight-a-double-whammy-for-mncs/ [accessed on: 15 November 2014]; Warren Kaplan, „Fixed-Dose Combination (FDC) Drugs Availability And Use As A Global Public Health Necessity : Intellectual Property And Other Legal Issues‟, 2003 available at http://whqlibdoc.who.int/publications/2003/a86263_part9.pdf [accessed on: 15 November 2014]; Sangeeta Shashikant, „Opposition to drug patents in India highlights access fears‟, Third World Resurgence, Third World Network, May – June 2006.

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Thus the Court has not passed judgement that increased bioavailability per se can be treated as enhancement of therapeutic efficacy. It says that enhanced bioavailability should be claimed separately and research data to prove the claim should be submitted. These questions may be litigated in future. Hence, the decision on Novartis is a landmark decision but not the final decision.

The main shortcoming of the Section 3 (d) is that it does not shut the door for patenting of known substances and it allows the patenting of known substances on a case to case basis if the patent applicant can prove that the claimed invention differ significantly in properties with regard to efficacy. In other words Section 3 (d) does not exclude the patenting of known substance per se and it only limits the patenting of known substance. This requires a case-to-case approach and requires examination of each patent application.

The Supreme Court does not rule out the patent protection of known substances while narrowing down the scope of efficacy criteria. In a way, it restored confidence by stating: “the beta crystalline form of Imatinib Mesylate does not qualify the test of Section 3(d) of the Act but that is not to say that Section 3(d) bars patent protection for all incremental inventions of chemical and pharmaceutical substances‖. The Court decision only narrowed down the scope of the word „efficacy‟. On ground, the patent examination should be conducted on a case-to-case basis, at least on claims on known substances with enhanced efficacy. This may still put the patent office and judiciary vulnerable for lobbying.

Hence, the replication of Section 3 (d) as such is not suitable for resource crunch developing country settings. Further, Section 3 (d) provides an element of discretion for the examiners and judges to interpret the term efficacy and it may make these institutions vulnerable for lobbying. Further, the scope of interpretation also may result in the undermining of policy objective to curb the patenting of known substance by a narrow interpretation by the patent office or the judiciary. Hence it is always better for developing countries to provide an ex ante exclusion of patenting of known substances without any substantive examination. Towards this end what is required is a modified Section 3 (d) which does not contain any scope for patenting of known substance in cases of enhancement of known efficacy. The next section suggests various policy steps to curb the patenting of known substance in the light of Novartis case.

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Agenda to Curb Patenting of Known Substances The above discussion clearly shows that the Supreme Court judgment does not rule out the patenting of known substance, but significantly narrowed down the scope of Section 3(d) to the enhancement of the known therapeutic efficacy. However, the decision does not clearly spell out the types of claims, which satisfy the therapeutic efficacy. Thus, there is still an element of uncertainty and it is expected that the Court may interpret the test of therapeutic efficacy narrowly or broadly in a subsequent case. There is a risk of neutralisation of policy objective through judicial interpretation. The practice of the Patent Office clearly shows that it failed to translate the policy objective in its day-today business. Moreover, the use of Section 3(d) is not very cost effective and efficient and it is often marred by lengthy litigations. Hence, a country like India should ponder on the ways and means to curb the patenting of known substance through legal provisions thereby explicitly excluding its patenting. The easiest way to do so is by deleting the three qualifications from Section 3(d): First, the word mere; second, which does not result in the enhancement of the known efficacy of that substance; and third, unless they differ significantly in properties with regard to efficacy”.

If there is no clear political will to make such an amendment, the government should at least amend Section 3(d) to limit the „efficacy‟ to „therapeutic efficacy‟, as mentioned in the Supreme Court judgment with certain clear criteria to judge the therapeutic efficacy. This is essential to consolidate the policy objective against the patenting of known substance. We also need to minimise the risk of policy deviation through future judicial interpretation. The following suggestions, relevant to curb the patenting of known substance, are towards that direction.

1. Review the granted patents in the light of judgment Since the introduction of the product patent protection in 2005, the Patent Office has granted around 6000 to 7000 product patents on pharmaceutical inventions. The Patent Office itself revealed that between 2007 and March 2010, it has granted 3470 product patents. As mentioned above, many of these patents have been granted in violation of Section 3(d). Therefore, it is important to review the decision of the Patent Office in the light of the Supreme Court judgment and revoke the wrongfully granted patents under Section 66 of the Patents Act. Section 66 states: Where the Central Government is of opinion that a patent or the mode in which it is exercised is mischievous to the State or generally prejudicial to the public, it may, after giving the patentee an opportunity to be heard, make a declaration to that effect in the Official Gazette and thereupon the patent shall be deemed to be revoked.

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Many of the patents may not be of any consequence for the generic entry. However, there are certain patents, which have the potential to prevent the generic entry. For instance, the patent on Trastuzumab, which is a drug used for the treatment of HER2 Positive breast cancer. This is one of the most important medicines proved effective in the treatment of breast cancer. It is marketed in India by Roche, which owns the patent through its subsidiary Genentech. Roche sells this medicine in India under two brand names at different prices. The first brand, i.e., global brand known as Herceptine, is sold at the maximum retail price (MRP) of Rs. 134,000. The second brand has the MRP of Rs. 75,000. According to news reports, the Ministry of Health is considering to issue a notification under the Section 92 of the Indian Patents Act to expedite the issuance of compulsory licence.

The original molecule, a pre-1995 one, is not under patent protection India. However, there is another patent with Patent No.205534, granted by the Kolkata Patent Office. This patent claims priority on 6 May 1998. The drug obtained the marketing approval on 25 September 1998.

This patent claim contains seven claims. The first claim states53: A composition comprising a mixture of anti-HER2 antibody and one or more acidic variants thereof, wherein the amount of the acidic variant(s) is less than 25%. One cannot find any claim on therapeutic efficacy even in the subsequent claims. However, a patent has been granted on this application and it is blocking the generic entry of Trastuzumab in India. This patent was not renewed by the applicant i.e. Roche in 2013 and therefore not valid anymore.

2. Disclosure of INN Another important step to curb the patenting of known substances is through the mandatory disclosure of the International Non Proprietary Names (INN). The disclosure of INN clearly provides evidence whether the substance is known or not. This would further make the examination procedure easy to gauge the claims of enhanced therapeutic efficacy. Hence, there should be an obligation on the part of the applicant to disclose the INN, whenever the patent application is on a pharmaceutical substance. An

53 See Patent office website for details on Patent No.205534 available at http://ipindiaonline.gov.in/patentsearch/GrantedSearch/ReportProjectPopUp.aspx?Appl_No=IN%2fPCT%2f2 000%2f00391%2fKOL&Pbl_No=IN%2fPCT%2f2000%2f00391%2fKOL&Pat_No=205534 [accessed on: 15 November 2014].

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intentional non-disclosure or wrong disclosure should lead to the revocation of patent. In the case of NCEs, there should be an obligation on the part of the applicant to disclose the INN immediately after the allocation of INN.

The Patent office in 2013 had at least two consultations to implement the disclosure of INN. The patent attorneys, who represent the pharmaceutical TNCs and as well as pharmaceutical TNCs opposed the move. The author learned that the matter is now pending before the Department of Industrial Policy and Promotion (DIPP). Meanwhile the Revised Draft Guidelines for Examination of Patent Applications in the Field of Pharmaceuticals states that the patent examiner ask the applicant to inform the INN of the said pharmaceutical substance. It further states “ if the applicant does not inform the INN even of the request, the examiner should try to find out the INN and use the same in search strategy”.54 Thus the Draft Guideline considers INN as a search strategy but does not shift the burden of INN disclosure to the applicant. As a result the request of the examiner can be ignored by the applicant.

3. Amendment to the Manual of Patent Office Practice and Procedure The patent office should incorporate the Supreme Court judgment in the examination manual and apply the therapeutic efficacy as the sole criteria to apply Section 3(d). The current manual even bypasses the legislative intent behind Section 3(d). It states “Isomers having the same empirical formula but having structural differences may be considered novel and may not normally offend „obviousness‟ as they are structurally different”. This statement instructs the examiner to ignore the legislative requirement on efficacy and accepts claim on an isomer having structural difference and therefore eligible for patent protection. Hence, it is important to amend the manual to incorporate the Supreme Court decision and the criteria to gauge the therapeutic efficacy. The Patent Office currently undertaken an initiative to come out with a Draft Guidelines for the examination of patent applications in the field of pharmaceuticals. Based on consolations the Patent Office may either come out with the final version of the Guideline or produce a third draft of the Gridline. The revised Draft Guideline in a way failed to incorporate the Supreme Court judgment in its right spirit.

54 See Draft Guideline for the Examination of the Patent Applications in the Field of Pharmaceuticals, at p. 9 available at http://www.ipindia.nic.in/iponew/draft_Pharma_Guidelines_12August2014.pdf [accessed on: 15 November 2014]

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The revised Draft Guideline quotes the parts of the Supreme Court judgment i.e. “the mere change of form with properties inherent to that form would not qualify as ―enhancement of efficacy‖ of a known substance. .In other words, the explanation is meant to indicate what is not to be considered as therapeutic efficacy”. However it failed to provide the necessary explanation/guidance to implement the Supreme Court decision in the Guideline. Thus according to Supreme Court salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations, and other derivatives of known substance should be treated as known substance unless the applicant failed to prove an enhanced therapeutic efficacy than the known substance. This means that any patent application which claims patent on a isomers or salt form etc. would be rejected per se in the absence of evidence s to prove enhanced therapeutic efficacy. Thus the Patent Office can reject patent application claiming patent on any new forms in the absence of a claim and evidence with regard to therapeutic efficacy.

4. Limiting the number of divisional applications Another important step is to check the practice of filing the divisional applications. A divisional patent application is allowed to help the applicant to claim the priority date of the original application and file subsequent improvements in the invention. However, often the pharmaceutical TNCs use divisional application to scare the generic manufactures to show the pending patent applications and thereby delay the introduction of generic version. There is no restriction on the number of divisional applications one can file. Often divisional application is filed even after the rejection of the original patent application. Gilled Life Sciences used the divisional applications on Tenofovir to issue voluntary license to Indian generic companies with restrictive conditions.55

The scope for misuse of the provision of divisional patent application emerges from the Section 16 of the Patents Act. Section 16 states a divisional application can be filed at any time before the grant of patent. Even though the IPAB attempted to bring some degree of discipline56 still it provides enough space to misuse the provision to file the

55 For further details, See License Agreement between Gilead Life Sciences and Medicines Patent Pool and the sub-liquescence agreements available at http://www.medicinespatentpool.org/current-licences/ [accessed on: 15 November 2014]

56 See Essence Obhan and Sneha Agarwal, „Searching for Clarity in India‟s Divisional Patent Applications‟, available at http://www.managingip.com/Article/3243288/Searching-for-clarity-in-Indias-divisional- applications.html [accessed on: 15 November 2014]

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patent application because the divisional patent application would be still pending for examination even after the rejection of the original application.

5. Training of patent office and judiciary It is important to train both the patent office and the judiciary regarding the Supreme Court‟s interpretation of Section 3(d) and on the measures to be taken on how a public health-oriented jurisprudence should be used to interpret the therapeutic efficacy criteria. Further, the training should ensure that both the judiciary and the patent office should reflect the legislative intent while interpreting Section 3(d), i.e., while deciding on the patentability of known substance. Towards this purpose, the government should review its MoU with the developed country patent office and remove clauses on capacity building. Further, there should be clear norms and standards for the interaction of judicial officers with their foreign counterparts, as well as their participation in the conferences and other meetings organised by academic institutions, NGOs, industry lobbies and law firms.

6. Policy coherence Lastly, the Government of India should ensure policy coherence across the sectors. While the government welcomes the Novartis judgment and support the non-patenting of known substance, such a policy should be implemented across the board. However, this approach is currently missing. The concrete case is the exemption rules under the Drug Price Control Order (DPCO), which provides exemption to price control on the basis of patents for five years. DPCO fixes the prices for medicines in the National List of Essential Medicines (NLEM), which currently contains 348 medicines without any product patent protection57. According to DPCO “a manufacturer producing a new drug patented under the Indian Patent Act, 1970 (39 of 1970) (product patent) and not produced elsewhere, if developed through indigenous Research and Development, for a period of five years from the date of commencement of its commercial production in the country.58‖ It is very clear that such patents can be obtained only on known substances.

Similarly, India should not negotiate IP as part of its Free Trade Agreement (FTA)

57 See National List of Essential Medicines of India 2011, available at http://www.cdsco.nic.in/writereaddata/National%20List%20of%20Essential%20Medicine- %20final%20copy.pdf [accessed on: 15 November 2014].

58 See Drugs (Prices Control) Order, 2013 at para.32.

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engagements. The developed countries often push for strong IP protection and enforcement standards through FTA. India is currently negotiating with the EU, Canada, Australia and New Zealand. The EU is demanding extension of border measures to exports and covering even goods suspected of infringing patents. Similarly, Pfizer has demanded to the US government at the hearing of the House Sub-Committee on Trade ―The U.S. government should pursue a robust trade agenda that includes strong intellectual property protections that build on the Korea‐U.S. Free Trade Agreement and U.S. law, including robust provisions in the Trans‐Pacific Partnership Agreement (TPP). 10 Strong IP provisions in U.S. trade agreements will demonstrate to countries like India that the U.S. is firmly committed to protecting intellectual property‖. Hence, India bears the danger of its policy objective of curbing patenting of known substance by agreeing for negotiating IP as part of FTA.

7. Review of Bilateral Investment Treaties Lastly, there is one more reason to review India‟s Bilateral Investment Treaties (BITs) to effectively curb the patents on known substance. The current definition of investment includes IPRs including patents, and therefore the proposed review of BITs should also aim at removing IP from the definition of investments. This is relevant, especially in the light of the revocation of Eli Lilly‟s patents by the Canadian Court. The Canadian court revoked the patents citing failure to deliver the benefits Eli Lilly claimed while obtaining the patents. The current BIT provisions threaten the post-grant revocation of patents by the patent office, the Intellectual Property Appellate Board (IPAB) and the courts.

Conclusion The above discussion clearly shows that while the Supreme Court narrowed the possibilities of obtaining the patents on known substances, it does not rule out the possibilities. There is still an element of uncertainty with regard to the interpretation of „therapeutic efficacy‟. In the absence of a shared understanding on the content of the term „therapeutic efficacy‟, there is the threat of diluting the policy concern on patenting of known substances through judicial interpretation or the practices of the patent offices. Therefore, further strengthening of law to reflect the policy concern is important to have a long-standing solution. The article also suggests certain measures to effectively implement the Supreme Court judgment and limit the patent protection to known substances on the sole criteria of enhanced therapeutic efficacy.

Briefs

The concept of obscenity and the search for objective standards by the Supreme Court of India

Mahesh Menon, WBNUJS

Protection, conservation and management of ancient natural Monument and archaeological remains: The constitutional and legal mandate

Suhruth Kumar, GLC Thrissur

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THE CONCEPT OF OBSCENITY AND THE SEARCH FOR OBJECTIVE STANDARDS BY THE SUPREME COURT OF INDIA

Mahesh Menon1

The Conjunction of free press, growing mass media and a section population that attempts to preserve values which they consider to be “Indian” with the legal system produces challenges of new kinds that pose questions on the limits of freedom to express and the mooted need to protect the society from objectionable content. When this objective brought into the regulation of obscene materials, we face a challenge of a different sort – as obscenity, in its ultimate analysis is thinly objective. Marked by a severe lack of (and nearly impossible) consensus on what can be called as obscene, and left with a colonial penal code that carries a century old Test for obscenity, the courts have struggled to expand the freedoms of speech and balance it with the need to contain the spread of certain category of materials. The debate on what is obscene assumes contemporary significance in the light of demands from some quarters to remove or block all materials that are obscene from the internet, particularly the social networking websites and the often repeated demands to regulate the cable television and broadcasting media. This paper attempts a study on the limitations of the statutory law relating to obscenity and the judicial quest to overcome those limitations and how they are relevant to our present times. The paper concludes with reflections on the nature of the discretion vested in the judges to determine what is obscene and suggests the standards on which amendments can be made to the statues to limit the exercise of discretion.

1 The Author was a Legal Officer at Asian-African Legal Consultative Organization. He is currently working as an Assistant Professor in West Bengal National University of Juridical Sciences.

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THE CONTEXT: GROWING MASS MEDIA AND THE LIMITS OF FREE SPEECH

The growth of Mass media in India was initiated since colonial times from the latter half to the 18th Century with the print, radio broadcasting and cinema, all making its entry between 1780 and the end of 1800s. Since post-independence times, barring the short span of time when „the emergency‟ was in operation, Singh B (1980:38) remarks media in India has remained free and independent.2 But post- independence times have also witnessed oppositions and differences of opinion on what all can be disseminated through the media. Particularly interesting are the results produced when the process of law met with materials that certain groups of persons considered to be fitting within the category „obscene‟. Events even from the immediate past has shown us how the process of law has been used, mostly by private citizens who believe that certain acts performed or certain images published offends the nation‟s inherited „cultural values‟. Thus, actors Richard Gere and Shilpa Shetty were charged with „performing obscene act in a public place‟ with a court issuing process against him on a private complaint when he kissed the latter on stage at a public meeting.3 Similarly, actors4, writers and painters5 have at various times faces prosecution for dissemination of so called obscene materials. While we may or may not agree on whether there is a need to prevent the dissemination of obscene materials or the need to insulate the society from such materials, we cannot deny that where law is involved, setting of standards that leaves room for arbitrary actions and subjective satisfactions (especially in criminal law) would be impermissible. Clarity in what is the prohibited act is an indispensible element.

2 Singh, Indu B, „The Indian Mass Media System: Before and After the National Emergency‟, (1980) 7 (2) Canadian Journal of Communication 38.

3 Richard Gere, „Cleared of Obscenity‟, http://news.bbc.co.uk/2/hi/7295797.stm [accessed on: 28 July 2011].

4 Sharukh Khan a prominent actor was slapped with an obscenity case by a private complainant after he performed with some „skimpily clad‟ dancers in Kerala at a public function, http://www.indianexpress.com/news/shah-rukh-khan-slapped-with-obscenity-case/890904/ [accessed on February 13 2012]; Actress Vidya Balan is also facing charges on her posing in the posters of a movie, http://articles.timesofindia.indiatimes.com/2011-12-18/hyderabad/30530734_1_obscenity-case-vidya-balan- promos accessed, [accessed on: 13 February 2012].

5 Eminent painter M.F. Hussain for painting the „Bharat Mata‟ in nude had also met with a similar fate, See infra n.76.

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The question then what amounts to being obscene is of immense contemporary relevance in the light of the immense growth of mass media over the last decade.6 While traditionally the courts have looked at obscene content in literary works, films and paintings, the platforms for artistic expression has changed manifold, with cable television and the internet taking a significant share of the mediums for expression. Thus the ongoing debate on the removal of obscene content from social networking websites7 and the often heard debate on the need to prevent content that is obscene and that which offends „Indian Values‟ from being disseminated through media has to be judged in this context.

However, trying to define what would be obscene would immediately run into difficulties of numerous sorts. Where do we place that thin line that demarcates legitimate expressions and obscene ones? What standards are we to apply to judge whether something is obscene or not? The quest for these answers also involved a quest for identifying the limits of one of our most cherished freedoms: the freedom of speech. For the courts, it is also a quest to devise objective standards to test something that falls almost entirely in the realms of subjectivity. Attempts to define and objectify what is obscene have historically met with several failures and in a moment of candid admission Justice Potter of the United States went on to state “I know it [ i.e. what is obscene] when I see it”.8 How far has the Indian statutory law managed to infuse the desired levels of objectivity? A Survey of the Statues on the subject demonstrates that they fall miles short of this objective as they stop with using the word “obscene” with no guidance on determining what is obscene. This has then necessitated an exercise of

6 The World Press Trends Indicate the steady growth of print media in India, http://www.wan- press.org/article17377.html [accessed on 13 February 2012]. India is now ranked 4th amongst the list of countries by number of television broadcast stations, CIA World Fact book, Field Listing: Television Broadcast stations, https://www.cia.gov/library/publications/the-world-factbook/fields/2015.html [accessed on February 13, 2012] In addition to this the internet is also gaining popularity with increasing number of users over the last decade. http://www.internetworldstats.com/asia/in.htm [accessed on: 14 February 2012]. The massive growth potential of media convergence has also been projected, The Indian Entertainment and Media Industry, A Growth Story Unfolds, http://www.pwc.com/en_IN/in/assets/pdfs/indian-entertainment-media- industry-growth-story-unfolds.pdf [accessed on: 14 February 2012].

7 The Delhi High Court recently ordered the major social networking websites to “remove all obscene content” from it‟s websites, http://www.firstpost.com/india/we-can-block-websites-like-china-if-steps-not- taken-delhi-hc-180346.html [accessed on: 18 January 2012]. The Court summoned the executives of the websites and threatened a China like blockade of the websites if such content is not removed, http://www.hindustantimes.com/technology/SocialMedia/We-ll-do-a-China-HC-warns-Facebook- Google/Article1-796243.aspx [accessed on: 1 January 2012].

8 Jacobellis v. Ohio, 378 U.S. 184 (1964).

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judicial standard setting. The next section makes a survey of how the judges took to the task of defining what was obscene.

THE STATUTES ON OBSCENITY: OF EMPTY SHELLS AND SOME JUDICIAL WORK

A. Statues that deal with the notion of “obscenity” Numerous statutes have provisions that touch upon the concept of Obscenity.9 However, attention here is primarily placed on the provisions of the Indian Penal Code as even the other statutes would depend on the Code to give content to the word „obscene‟. The principal provisions of law concerning the criminalization of publication and circulation of materials with obscene content are Sections 292 – 294 of the Penal Code of 1860. Section 292 punishes the publication and dissemination of materials that are obscene and section 293 provides for an enhanced punishment for distribution of obscene materials to persons who are below 20 years of age. Both these provisions were substantially amended in the year 1925, pursuant to India‟s participation in the International Convention for Suppression of Traffic in Obscene Literature, 1923. 10 However, Section 292 in its 1925 form lacked any definition of obscenity and the Courts in India were taking recourse to the English Common Law test of Obscenity as laid down in Hicklin‟s Test 11 to elaborate on the concept.12 The section punishes inter alia

9 Section 20 of the Post Office Act of 1898, which however uses the word “indecent”. In Nathuram Varma v. Secy. of State, AIR 1930 Lah 552, “indecent” was held to be, quoting with approval the Oxford dictionary, „Offending against the recognized standards of propriety and delicacy, highly indelicate, immodest, suggesting or tending to obscenity‟.; The Customs Act, 1962 contains provisions to prevent the importation of articles that are obscene; The Indecent Representation of Women (Prohibition) Act, 1986 does not use the expression „obscene‟, however, it is clear that the subject matter covered by the legislation is directly concerned with notions of obscenity .The expression „indecent representation‟ of women is defined by S. 2 (c) of the Act as „the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals‟. Notably, the Act reproduces the exceptions under the Penal Code; The Cinematograph Act has no direct provisions relating to obscenity. However the mechanisms of pre-censorship and certification is used to prevent inter alia the spread of obscene Materials. Section 3 (c) of The Dramatic Performances Act, 1876 empowers the government to prohibit the performance of any „play, pantomime or other drama‟ which in its opinion is „likely to deprave and corrupt persons present at the performance‟. Section 67 of the Information Technology Act, 2000 borrows the definition of obscenity from section 292 of the Penal Code to punish the spreading of obscene materials over the internet.

10 It is worth to take note of that S. 98 of the then Code of Criminal Procedure was also amended to empower a magistrate to enter and search premises with a warrant and take possession of obscene materials.

11 (1868) L.R. 3 Q.B. 360.

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(i) The sale, distribution, circulation, exhibition and possession with a view to sell, any obscene articles; and (ii) Its import, export or conveyance for the purposes aforesaid; (iii) Taking part or receiving profits out of a business that such person knows to be connected to obscene articles ; and (iv) Advertising the sale of such articles and offering to do any acts contrary to the section.

In its 1925 form, the section admitted of only one exception: the keeping of such articles used bona fide for religious purposes and engravings or sculptures on temples or on cars used for religious purposes. Quite notably, the section did not provide lack of knowledge as to the contents of the article being sold or the lack of intention on the part of the accused as a defense to the charge. This was highly unfortunate in a country like India with numerous languages, diverse cultures and low rates of literacy. It was only after the passing of the Obscene Publications Act in England in 1959 (and perhaps owing to unsatisfactory and the widely criticized judgment in Lady Chatterly Lover‟s Case13) that the legislature saw a need for reform. Thus a select committee was appointed under the chairmanship of Akbar Ali Khan in 1963. The recommendations made by the committee resulted in the passing of Act 36 of 1969, which brought about several significant changes in the provision. The 1969 amendments sought to bring clarity on the concept of obscenity. According to the amended provision, an article was obscene if “it is lascivious or appeals to the prurient interest or if its effect” or where it comprises of two or more items, the effect of one of any of the items if taken as a whole is “to tend to deprave and corrupt persons” who may come into access of those articles. Notably, the scope of exceptions were considerably expanded with articles published in the interests of „science, literature, art or learning or other objects of general concern‟ being exempted. Representations on „ancient monuments‟ within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 were also exempted.

12 The Hicklin Test and its adaptation by the Indian courts shall be discussed in the next section.

13 Ranjit D. Udeshi v. The State of Maharashtra, AIR 1965 SC 881.

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S. 294 of the Code punishes the doing of an obscene act or singing of an obscene song in a public place – a provision that can be possibly used against dramatists and Stage Performers.

Section 67 of the Information Technology Act 2008 adopts the definition of obscenity in the Indian Penal Code and penalizes it‟s transition or publication. Section 67A penalizes the transmition or publication of any material with sexually explicit act or content. Both these provisions are however subject to the exceptions carved out by S.67B which gives the same set of exceptions carved out by clause (a) to Section 292 of the Code. Notably the requirement in the penal code that where the content in question comprises of two or more distinct items, the effect of any one its items is to be considered in isolation is dispensed with. This then can only mean that the totality of the content is what needs to be considered. Since, the definition of Obscenity and it‟s exceptions in the Act are same as that of the Penal Code, the judgments under the Penal Code Continue to be of relevance to determine what is Obscene.

The Cable television Networks Rules, 199414 prohibits the showing of anything that is obscene15 or that which makes an indecent representation of women.16 Stipulations are made in the case of advertisements also, by Rule 7.17 However, the Rules do not lay down what amounts to obscenity. This then takes us back to the Penal Code‟s definition of obscenity. Similarly, the Direct To Home18 Guidelines (DTH)19also mandate the operator to ensure that his facilities is not being used to run any obscene content.

14 Framed under the Cable Television Networks Ordinance, 1994, subsequently passed by the legislature as an Act in 1995. Interestingly, the statement of objects of the Act state that that cable TV constituted a „cultural invasion‟ as cable programmes were predominantly western and alien to Indian culture and way of life. It declared that the lack of regulation had resulted in undesirable programmes and advertisements being shown to Indian viewers without any censorship.

15 Rule 6 (d).

16 Rule 6 (k). Though the rule makes no explicit reference to this, in substance that is what the rule deals with.

17 Which prohibits advertisements that make an indecent representation of women or is indecent or vulgar.

18 Direct-to-Home (DTH) Broadcasting Service, refers to the distribution of multi-channel TV programmes in Ku Band by using a satellite system by providing TV signals direct to subscribers' premises without passing through an intermediary such as cable operator

19 Guidelines for Obtaining License for Providing Direct-To-Home (DTH) Broadcasting Service in India,

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As regards the internet, The Rules20 framed by the Central Government under the under Section 69A21 of the Information Technology Act empowers the government to direct the removal of content from internet. The Rules envisages a designated officer (who shall be an officer of the Central Government not below the rank of a joint secretary)22 to entertain a request for blocking only from Government Agencies or from the Court, as a result of a judgment.23

As one can see, all these statues merely prohibit or criminalize the sale, distribution, publication or performance of what is obscene, without not once providing a guideline for how to determine what is obscene. This then was a judicial task which involved the application of some objective standards of judging. What are these standards and how did we arrive at them? This is the next question that needs examination.

B. The First Time - Lady Chatterley’s Lover and The Supreme Court As was noted in the previous section, the 1925 form of Section 292 did not define the word „obscenity‟. Consequently, in its quest for standards to determine liability, the courts, as was the practice then, chose to follow the then popular and prevalent Common Law standards propounded in Queen v. Hicklin24 (the “Hicklin Test”) to determine what was obscene. The test asks “whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral

20 The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

21 Which is apparently the provision that empowers the Central Government to block access to content on internet that contains obscene materials. However, it is argued that the provision grants no such power as the enumerated grounds for the exercise of the power are : Sovereignty and integrity of India, defense of India, security of the state, friendly relations with foreign state or public order or to prevent the incitement to the commission of any cognizable offence relating to above. If the expression “relating to above” means only the grounds enumerated within the section, then it would be hard to conclude that there exists any such power. However, if it means a reference to all penal provisions that come in that chapter(which would be a more teleological approach) , one may be able to make a better argument for the existence of the power. 22 Rule 4 of The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules

23 Rule 6 of ibid.

24 (1868)L.R.3Q.B.360. The text of the judgment can be accessed at http://en.wikisource.org/wiki/Regina_v._Hicklin [accessed on: 17 July 2001].

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influences”.25 If it answered yes, then the matter in question was to be considered as obscene. Though the 1925 form of the statute had carved out only one exception, i.e. articles used for bona fide religious purposes, the courts in India mitigated the rigors of the provision to some extent by recognizing a limited defence of public good and thus saving some articles from being called obscene per se. Thus authors who made reference to sex in medical works26 or made works that were circulated only amongst a certain class of persons27 were saved from prosecution under the provision. In some cases, works of a classic nature which were found to be of artistic value were also saved.28 However, Hicklin‟s Test suffered from several flaws: To begin with, the test permitted particular passages to be considered in isolation or in other words that the totality of the work needs to be considered. Thus the existence of isolated portions in a book that could be termed „obscene‟ could leave an artist susceptible to prosecution. Secondly, the use of the test meant that the influence of the article in question on a particularly susceptible group of persons received an undue consideration.

It was only in 1964 that the Supreme Court of India found an occasion to deal with the limits of artistic expression vis-a-vis obscenity. In Ranjit D. Udeshi v. The State of Maharashtra29 the court was invited to consider the correctness of convicting a book seller who sold an unexpurgated copy of Lady Chatterley‟s Lover authored by D.H. Laurance. Though in several countries (including the United Kingdom) the book had escaped condemnation and prosecution, the Supreme Court held that book to be obscene, applying and upholding the Hicklin‟s Test. From the very beginning, by stating that “The word obscenity is really not vague because it is a word which is well- understood even if persons differ in their attitude to what is obscene and what is not”30, the court was also mindful of the fact that “Condemnation of obscenity depends as much upon the mores of the people as upon the individual. It is always a question of

25 Cockburn, J, ibid.

26 Emperor v. Harnam Das, (1946) 48 Cr.L.J. 910, which involved references to sex while dealing with marriage in a medical context.

27 State v. Girdharlal T. Popatlal, [1954] 57 Bom.L.R. 452.

28 Kherode Chandra Roy Chowdury v. Emperor, (1911) I.L.R. 39. 29 See supra n.13.

30 Ibid, at para. 9.

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degree or as the lawyers is accustomed to say, of where the line is to be drawn.”31 Lamenting about the impossibility of lying down of any “true test” to determine what is obscene, Justice Hidayathulla (1977: 284-285)32 observed:

―The laying down of the true test is not rendered any easier because art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross33‖

However, room was sought to be left for expression of art, observing that „It may, however, be said at once that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.‟34 But when invited to discard the Hicklin‟s Test in favor of the more recent American doctrines, the same was rejected.35 The court reasoned that whether a work of art is obscene or not would have to be worked out on a case to case basis and that courts would do that keeping in mind the contemporary moral standards prevailing at the relevant time. Further, though it was held that the totality of the work needs to be considered for determining whether the matter is obscene, the dictum in the Hicklin‟s Test that the alleged obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity was retained. Thus, portions of a book that had obscene content continued to be punishable under the Penal Code. Notably, the evidence of Mulkraj Anand, a prominent writer and an art critic on the literary merit of the novel was also held to be of not much

31 Ibid.

32 With whom the rest of the court concurred. It is interesting however to note that Justice Hidayathulla later claimed that personally he thought that the book was not obscene, however he wrote that opinion as it was the opinion of the other members of the bench. See M Hidayathullah, „Thoughts on Obscenity‟, (1977) 2 Illinois University Law Journal 284, at. p.285.

33 Supra n.13, at para.16

34 Ibid

35 Manual Enterprises Inc. v. J. Edward Day, 370 U.S. 478, was rejected stating that there was little concurrence in the court and hence it was of „little opinion value‟. The same was said of Nico Jacobellis v. State of Ohio, 378 U.S. 184 (1964). See Ranith D, Supra n.36 at para. 12; Samuel Roth v. U. S. A., 354 U.S. 476 was rejected as the court found that to be the test of “hard core pornography” which was held to be of no relevance to interpret the Penal Code. Further, it was also noted that there was a lack of a uniform approach within the court.

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relevance, holding that it was for the court to decide on the element of obscenity of the work with reference to the Penal code and the Constitution. Further, the contention that to convict the author had to have „an intention to corrupt the minds of the public in general‟ was also repelled, observing on the near impossibility of proving such a state of mind.

C. And Elsewhere in the Meanwhile… Before continuing with the analysis of the work of the Indian Supreme Court, it is worthwhile to take a short break to study the developments in this branch of law in two foreign jurisdictions that continued to punish obscene acts and publications, The USA and the UK. The survey is of importance as most frequently, lawyers have cited judgments from these jurisdictions in support of arguments for a broader test of obscenity and the courts from initially being reluctant to follow them gradually adopted them.36 This chapter takes a limited survey of those key cases that brought about a change in standards by which obscenity was judged and that which were frequently relied on by counsels.

Both of the aforesaid countries had rejected the Hicklin‟s Test. In USA, the courts evolved new doctrines and in the UK new statues were being introduced. By 1933, a federal court in America had refused to follow a most basic part of the Hicklin Rule: that a work had to be judged by its effect on the most susceptible members on the society. Dealing with the question on Ulysses (authored by Jamce Joyce, the work is considered by many as a modern classic) the court rejected Hicklin‟s Test, under which the work would have to have been treated as obscene. The court propounded that the work must be judged based on its effect on the most average members of the society and not on persons who are particularly susceptible.37 The ruling was upheld by the U.S. Court of Appeals the next year.38 According to Overbeck (2004: 300) by the 1950s most courts in USA had already abandoned the Hicklin Test and had adopted the test propounded in the Ulysses Case.39 However it was only in 1957 that the US Supreme

36 Right From Ranjith Udeshi (supra n. 13) where five foreign judgments were relied on, in almost every major case the counsels have relied on precedents from United States and Britain to further their cases. 21 such Judgements were discussed in K.A. Abbas (infra n.54) and 4 and 2 respectively in Ajay Goswami (infra n.73) and Samaresh Bose (Infra n.64).

37 Wayne Overbeck, Major Principles Of Media Law, Poverty Hill Books, 2004 at p.300.

38 United States v. One Book Entitled Ulysses by James Joyce, 72 F.2d 705, 706 (2d Cir. 1934).

39 See Wayne Overbeck, Supra n. 37, at p.300. 54

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Court had an occasion to deal with the question. In its first deviation from the Hicklin Principle, The court struck down a law that prohibited the sale of books that might incite minors or corrupt them, thus effectively holding that merely that the materials in question would tend to harm a section of the society could not be reason enough to ban them.40 However, it needs to be taken note of here that the court did not dwell deep into the question what could be called obscene or otherwise -the question was whether such obscene materials could be banned from public circulation.

The landmark decision that propounded a fresh test for obscenity came in the same year in Roth v. U.S.41 Though the validity of statutes that prohibited the dissemination of obscene materials was upheld42, the court propounded a new standard for judging what was obscene: “whether to the average person, applying contemporary community standards, the dominant theme of material taken as a whole appeals to prurient interest”. The court ruled that the Hicklin Test violated the principles of the 1st Amendment as it permitted the judging of obscenity by the effect of isolated passages on the most susceptible persons.43

In a decade‟s time, the Roths Test44 was further expanded with the requirements of “Patent Offensiveness” and the work being without any redeeming social value being additional requirements. Finally, in the 1973 decision in Miller v. California45 the Supreme Court propounded a new 3 point test for determining obscenity, effectively doing away with the century old Hicklin Test. The new test that was evolved was:

40 Butler v. Michigan, 352 U.S. 380 (1957).

41 354 U.S. 476 (1957).

42 Justices Black and Douglas dissented, stating that the First Amendment protects even Obscene Materials.

43 The Roth‘s Test was not however without it‟s share of shortcomings. Determination of “Contemporary Community Standards” had given rise to fresh set of issues which had given rise to a lot of controversy on whether obscenity must be judged based on a national standard or whether to adopt region wise standards on a case to case basis. After a series of conflicting judgments, the issue was put to rest in Miller v. California, 413 U.S. 15(1973), ruling in favour of national standards. For a general discussion on this aspect See: Overbeck, W., Supra n.37, at pp. 401-403.

44 Samuel Roth v. U. S. A., 354 U.S. 476.

45 413 U.S. 15 (1973).

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1. whether the average person, applying contemporary community standards…. would find that the work, taken as a whole, appeals to the prurient interest; 2. whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and 3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Thus the concept of “redeeming social value” was abandoned in favour of “serious literary, artistic, political or scientific value”, which was something broader and easier to prove for a defendant in a criminal proceeding. The above test has ever since remained in force.

In the UK, the Hicklin Test that held field for more than a century and publication of obscene materials remained an offence under common law. However, in 1959, the Parliament Enacted the Obscene Publications Act. According to the Act an article is deemed to be obscene “if its effect or where the article comprises of two or more distinct items, the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the manner contained or embodied in it.”46 The definition had in substance retained the test laid down in Hicklin. However, the Act introduced public good grounds as a defense to the charge.47 Further, in England, unlike in India, it is a jury that decides whether the matter in question is obscene or not, thus introducing community standards of determination, rather than the judgment being made by a lone judge. Furthermore, Section 4 (2) of the Act specifically made admissible the opinion of experts as to the literary, scientific, artistic or other merits of an article – to prove or negate such grounds. In 1961, the Famous Publishing house Penguin Publishers was charged under the Act for the publication of Lady Chatterly‟s Lover. Applying the Hicklins Test, the result ought to have been a conviction. However, the jury chose to acquit. The case also laid down an important principle that evidence relating to other books are also relevant and admissible to establish the „climate of literature‟, which is

46 The Obscene Publications Act 1959, Section. 1(1).

47 Ibid, Section. 4.

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relevant in determining the literary merit of the article in question.48 Similarly, by 1969 the courts evolved the rule that in considering the defense of public good, the jury was to consider on one hand the number of readers that would tend to be “depraved and corrupted” by the publication, the strength of the tendency to so deprave and corrupt and it‟s nature; and on the other the strength of the literary, scientific, artistic, sociological or ethical merit that the book prophases to have. It was only after a balancing of these two factors, the question of obscenity was to be decided.49

Thus both the USA and the UK had discarded or qualified the Hicklin Test by the end of 1960‟s and evolved new tests or introduced several exceptions. In England, though the statue essentially continued to carry the concept of obscenity propounded in Hicklin, the prevalence of the jury system, expert evidence and new rulings created the atmosphere that ensured judging by community standards.

With this in the background, the next section continues the study of the major decisions in which the supreme court of India dealt with prosecutions of persons who were alleged to have published or disseminated obscene materials.

D. Watering Down The Hicklin Test: From Udeshi To Goswami Within 5 years after Udeshi was decided, the Supreme Court had chanced once again on the question of artistic freedom vs. Obscenity. In Chandrakant Kalyandas Kakodkar v. The State of Maharashtra,50 the Court considered the question of obscenity in a novel that centered on the life and times of a revolutionary poet. The objectionable content there was the descriptions of the sexual relations that the protagonist chanced upon. Notably, this was a private prosecution that resulted in a verdict of conviction by both the trial and the High courts. Quoting extensively from Udeshi on the position of law, the Supreme Court however made an important and nearly new requirement. It was observed that :

48 R. v. Penguin Books Ltd., [1961] Crim LR 176. As quoted in Halsbury‘s Laws of England, Voll 11(1), at para.357, n.6 (1990).

49 Ibid.

50 AIR 1970 SC 1390.

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―It is, therefore, the duty of the court to consider the obscene matter by taking an overall view of the entire work and to determine whether the obscene passages are so likely to deprave and corrupt those whose minds are open to such influences and in whose hands the book is likely to fall and in doing so one must not overlook the influences of the book on the social morality of our contemporary society51‖. (Emphasis supplied)

“An overall view of the entire work” was the words that now qualified the Hickiln‟s Test, and this was an important step ahead. Because, the Hicklin‟s Test stipulated even consideration of isolated passages to affix criminal liability, the Supreme Court now directed consideration in the overall scheme of things. With that the author, though he was found to be a poor one and the novel not of much literary quality, was let off with an observation at the tail end of the judgment that the standards of contemporary society in India are also fast changing. “The adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of sex, love and romance.‟52 Though the Hickiln‟s Test was not wholly discarded, it was observed that, ”What we have to see is that whether a class, not an isolated case, into whose hands the book, article or story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thought aroused in their minds”.53

The next occasion came a year later in K.A. Abbas v. The Union of India54 where the objectionable content was in a film. The petitioner there produced a film that sought to explore the contrasting standards of life of the urban rich and the poor. Inter alia the movie contained scenes of the red light districts of Bombay, of prostitutes there soliciting for prostitution and the life of prostitutes was depicted in a symbolic manner. When the petitioner approached the censor board for a „U‟ certificate under the Act, the same was rejected and so he approached the Central Government which was the appellate authority under the Act. The Central Government was prepared to grant a „U‟ certificate, provided however that certain scenes, in particular the scenes that depicted the life and living of the prostitutes were removed. The petitioner then approached the

51 Ibid at para.5.

52 Ibid at para. 13.

53 Ibid.

54 MANU/SC/0053/1970.

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Supreme Court under Article 32, complaining of a violation of his fundamental rights. Justice Hidayathulla (who was now the Chief Justice) authored the judgment. An important feature of the judgment was the elaborate references which it made to the American Jurisprudence on the Subject.55 This was in stark contrast to Udheshi where there was a lot of reluctance to rely on the American precedents cited.56 It was observed that „Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral‟.57 and that „Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read‟.58

A decade later, Raj Kapoor, an eminent film maker found himself being prosecuted for his home production „Satyam Sivam Sundaram‟, a movie that contained several scenes that some members of the public felt to be obscene. Though the film was granted certification for public viewing, Raj Kapoor faced members of the public initiating private complaints against him at various places. In Raj Kapoor v. The State and Others59 Justice Krishna Iyer rejected the contention that a prosecution would not lie in a case where certification had been obtained, holding that it would lie on the court to decide whether the matter was obscene, holding only that the certificate must be taken to be of immense value. At the same time, the great judge observed that “The world's greatest paintings, sculptures, songs and dances, India's lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.”60

55 See ibid at paras. 22-35. A good number of decisions of the Supreme Court of America relating to the scope of the right offered by 1st Amendment and pre –censorship was discussed. It was concluded that films are entitled to the protection of the 1st Amendment, however in cases of clear and present danger and on fulfilling the requirements of the Roths Test (supra) prior and and subsequent restrains would be imposed. However, the court also observed that “The attitude of the Supreme Court of the United States is not as uniform as one could wish.” ( at para35).

56 Ranjith D. (Supra n. 13) at paras. 12, 22.

57 Ibid, at para.50.

58 Ibid.

59 AIR 1980 SC 258.

60 Ibid at para.7.

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However, in less than two months‟ time, in Raj Kapoor v. Laxman61 the said position was reversed, holding that a certificate under the Cinematograph Act would be a bar to prosecution under s.292 of the Penal Code. It was reasoned that though the ingredients of s.292 were prima facie made out, with the receipt of the certificate the display of the film would stand justified in law and hence protected by s.7962 of the Penal Code.63 Quite notably, it was the same bench that reversed the earlier proposition, and the case also related to the same party and the same film.

The decision that finally brought a sea of change in the law relating to obscenity and pitched the need to adopt more liberal standards in judging works of art was arrived in Samaresh Bose v. Amal Mitra & Anr.64 The appellant there was a prominent Bengali author, whose novel „prajapathi‟ was accused of being obscene. The said novel was published in a popular Bengali magazine and a young lawyer who found the contents of the novel to be obscene set the criminal law in motion against the author and publisher. Both the trial court and the High Court concluded that the novel was obscene and convicted the author and the publisher, which was reversed by the Supreme Court in appeal. In stark contrast from the approach in Ranjith D. Udeshi65 that the author‟s intentions were irrelevant, the Court held that:

―In our opinion, in judging the question of obscenity, the Judge in the first place should try to place himself in the position of the author and from the view point of the author the judge should try to understand what is it that the author seeks to convey and whether what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a reader of every age group in whose hands the book is likely to fall and should try to appreciate what kind of possible influence the book is likely to have in the minds of the readers66‖ (Emphasis supplied)

61 AIR 1980 SC 605.

62 S.79 reads: “Nothing is an offence which is done by any person who is justified by law, or who reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it.”

63 In 1981 the Cinematograph Act was amended vide Act 49 of 1981, which introduced Section 5A. The proviso to S.5A(b) maintains that no prosecution would lie under any law relating to obscenity for any matter contained in a film for which certificate under the Act has been granted.

64 AIR 1986 SC 967.

65 See Ranjith D, See supra n.13.

66 Ibid , at para.35. 60

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The emphasized portion was one of those „leaps‟ in law, whereby the intentions of the author was sought to be given some space .The book used several slang words and further contained details of sexual unions and descriptions of female body with sexual overtones. The court however held that all these by themselves cannot constitute obscenity as these references and descriptions were to be understood in the context in which they were written. The court found that they were perhaps vulgar but that “a vulgar writing is not necessarily obscene. Vulgarity arouses a feeling of disgust and revulsion…but does not have the effect of depraving, debasing and corrupting the morals of any reader of the novel, whereas obscenity has the tendency to deprave and corrupt….”67 Another important result of the judgment was that more room was made for the opinion of experts on the literary field. In that case the defense counsel had examined two prominent critics of Bengali literature who deposed as to the artistic value of the novel. Though the law was that the opinion of experts was to have little bearing on deciding the question of obscenity and that the court was to form its own opinion, taking a step forward the Supreme Court held that it was proper for courts to rely to a certain extent on the evidence and views of leading litterateurs on the aspect particularly when the book is in a language with which the court is not conversant.

A decade later in Bobby Art International v. Om Pal Singh Hoon68 the Supreme Court was called upon to decide on whether the controversial and acclaimed film „The Bandit Queen‟ was obscene or not. The movie was about the life story of the infamous dacoit – turned politician Phoolan Devi. It contained several nude scenes and depictions of rape, sex and violence along with murder, bloodshed, abusive words and language. The movie was granted an „A‟ certificate by the censors (conditional on certain cuts being made) which on appeal the appellate tribunal confirmed (however with much lesser cuts that what was directed by the board). However the release of the film was sought to be stifled by some private members, who initiated prosecution on the grounds that the film was obscene and a writ petition was filed challenging the certificate issued to the film. The Delhi High Court allowed the writ petition and quashed the certificate granted, against which appeals were filed before the Supreme Court. Making a significant deviation from the cases before, it was observed that:

67 Ibid at para.41.

68 AIR 1996 SC 1846.

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―Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read. The standards that we set for our censors must make a substantial allowance in favor of freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good.69‖ (Emphasis supplied).

Following the dictum in Samaresh Bose70 it was held that the film was to be viewed in its entirety and scenes must not be considered in isolation to judge whether they were obscene. The nude scenes and the violence and rape in the movie were held to be justified considering the totality of the movie – which was based on the true life story of Phoolan Devi. It was stressed once again that nudity per se cannot be held to be obscene. Noting that provision of the statue in question were to be considered in the light of the prevalent social mores of the society, it was observed that „The relation between Reality and Relativity must haunt the Court's evaluation of obscenity, expressed in society's pervasive humanity, not law's penal prescriptions‟.71

The last in the series of the cases on obscenity was Ajay Goswami v. The Union of India.72 The Petitioner there was a lawyer, who initiated a Public Interest Litigation seeking interference from the Court to ensure that minors are not exposed to sexually exploitative materials, whether or not the same is obscene or is within the law. According to the petitioner, the news items published in various newspapers contained suggestions of sex, jokes with sexual connotations and pictures of scantily clad (or naked) women with captions that had a „double meaning‟. In addition to this, he complained of the articles and responses to letters by various sexologists which contained discussions on various matters relating to sex. The petitioner found this scandalizing and to be capable of corrupting the mores of the children and prayed for the intervention of the court to prevent the spread of such materials. The court taking note of the mechanism under the Press Council of India Act and the norms framed there under and the provisions of the Indian Penal code held that there did appear to be a vacuum of effective regulation of the print media. However, the fundamental right to

69 Ibid at para.49.

70 AIR 1986 SC 967.

71 Ibid.,at para.49.

72 AIR 2007 SC 493.

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freedom and expression was held to be above such considerations. Once again, authorities from the United States were cited and relied on to explain the ambit of the freedom of speech and expression.73 Making a comprehensive survey of the Indian Case law too, the Hicklin Test as modified by the subsequent cases was held to continue to be standards by which obscenity was to be judged. Quite notably, the court called upon the members of the public to be „less sensitive‟ and demanded a culture of „responsible reading‟ from the members of the public – that the publication has to be read as a whole and news items and advertisements are to be understood in their context. The writ petition was dismissed holding that „…. we believe that fertile imagination of anybody especially of minors should not be a matter that should be agitated in the court of law.” and that “Any hypersensitive person can subscribe to many other Newspaper of their choice, which might not be against the standards of morality of the concerned person‟.74

E. Continuing With The Run: Developments Post - Goswamy Ajay Goswami75 was the last time the Supreme Court commented on Obscenity and the law. However, an important further step in mitigating the rigour of the law by the Delhi High Court. In Maqbool Fida Hussain v. Raj Kumar Pandey76 the High Court while considering a work of prominent artist M.F. Hussain propounded a more liberal approach. The Court held that

―The legal test of obscenity is satisfied only when the impugned art/matter can be said to appeal to an unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with the impugned art.77‖ (Emphasis supplied)

73 See ibid at paras. 33-35 and 47.

74 Ibid, at para.47.

75 See supra n. 72.

76 2008 CriLJ 4107. Private Criminal Proceedings were initiated against prominent artist M.F. Hussain for a picture that he composed. The picture was that of a nude women with her hair flowing from the Himalayas. Hussain had soldthe painting untitled and some years later it came up for auction with the title “Bharath Matha: Hussain denied having given such a title to the painting. The Delhi High Court quashed the proceedings, noting that the painting in question could not be considered as obscene.

77 Ibid, at para.70.

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It is submitted that the same is not in line with the decisions of the Supreme Court, which still demands the test in terms of an “ordinary person.” Further the Delhi High Court has also propounded a shift from the over emphasis on the effects on the consumer of art/literature and has laid down that:

―The judge also must not apply his more liberal or conservative view in determining this aspect but should place himself in the shoes of the painter and endeavor to decipher the theme and thought process of the painter who created the painting. It would always be prudent for the judge to err on the side of a liberal interpretation giving the scheme of our Constitution.78‖ (Emphasis supplied).

Hopefully the Supreme Court would adopt this line of thinking as the same would be more accommodative of artistic interests.

Though the general trends of the Constitutional Courts has been to be liberal and allow more room for creative expression,79 it is seen that very often the members of the public has used the law of obscenity to harass artists and performers by initiating criminal proceedings before the trial courts and with the police.80 This is because without adequate standards and clear guidelines what is obscene for one judge or court may not be so for another and precisely here lies the threat to freedom of speech and expression. It is thus seen that ultimately it has been for the judges to decide what is obscene and what is not within the framework of the section, making the result of a prosecution dependant heavily on the attitude of the judge concerned.

78 Ibid, at para 101.

79 See: The Judgment of the High Court of Delhi in Vinay Mohan v. Delhi Administration, 2008 CriLJ 1672: wherein it was held that the pictures of a nude/semi-nude woman cannot per se be called obscene; S. Khushboo v. Kanniammal & Anr., (2010) 5 SCC 600; The judgment in Sada Nand and Ors. v. State (Delhi Administration), MANU/DE/0242/1986 would be of particular interest: The Court quashed proceedings against the printers and publishers of Debonair magazine holding that, though the magazine contained pictures of nude women that were published with the sole aim of attracting persons with a prurient mind and they lacked any artistic or aesthetic qualities, it could only be termed vulgar and relying on Samaresh Bose, Surpa n.50, it was held to be not obscene just because it was vulgar. In T. Kannan v. Liberty Creations Ltd, MANU/TN/8161/2007, the Madras High Court dismissed a writ petition that challenged the exhibition certificate granted to a biopic on E.V. Ramasamy, alleging that a song in the movie had lyrics that made vulgar criticisms of Sita, the wife of Lord Rama.

80 See supra n.3.

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REGULATING THE MASS MEDIA The call to remove/block from internet and the social networking websites (and all of media) must be judged against the backdrop of all these developments brought forth by case laws over five decades. This then also raises more questions on the competency of the persons to determine whether it is obscene and the procedure to be adopted by them. The Rules81 framed by the Central Government to invoke the powers under Section 69A of the Information Technology Act envisages a designated officer (who shall be an officer of the Central Government not below the rank of a joint secretary)82 to entertain a request for blocking only from Government Agencies or from the Court, as a result of a judgment.83 The Rules also contemplate hearing the persons who have uploaded the content or the intermediary before blocking the content.84 Thus a case by case determination would be required before any content can be blocked and the parties would have to be heard and be allowed to adduce evidence in support of their stand and more importantly, whether it is obscene will have to be determined in the light of the case laws discussed above.

The same must then also apply to the cable television networks and the broadcasting media. It is seen that courts have often taken a proactive role to ensure that television and broadcasting is kept clean from obscene materials. In 2004, the Rajasthan High Court suo motto initiated proceedings to deal with the „depiction of women in an undignified manner by the media‟.85 The court issued directions to ensure coordination between the governments and the monitoring agencies and reminded that strict action was to be taken in the case of violation. In 2006, the Bombay High Court in a public interest litigation held that the cable television operators could not air content that was unsuitable for unrestricted public viewing and that their right to trade and commerce is not impeded by this restriction.86 However, in such cases scant attention has been paid to the inherent difficulties in determining whether or not the content is obscene or

81 The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.

82 Rule 4, ibid.

83 Rule 6, ibid.

84 Rule 8, ibid.

85 Suo Motto v. State of Rajasthan, AIR 2005 Raj 300.

86 Pratibha Naitthani v. Union of India, AIR 2006 Bom. 259

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indecent. As stated before, since none of these regulations define what is obscene, the stipulations in the penal code would continue to guide the determination. This then gives another reason for the immediate need to update the definition in the penal code in line with the developments brought forth by case law.

CONCLUSIONS The Supreme Court has over time watered down the rigorous Hicklin Test, introducing exceptions and qualifications, which was in some cases contrary to the language of the words of the statue. The first time it was cited in Ranjit D. Udeshi87, the Roths Test itself was of doubtful authority with several opinions that called for different standards.88 At that juncture our Supreme Court held that it was the test of hard core pornography and hence improper to adopt the same for interpreting the provisions of the IPC and went on to adopt the test of „obscenity, without a preponderant social purpose or profit cannot have the constitutional protection of free speech and expression‟.89 However, over the years we find a gradual shift from an initial reluctance to accept the American authorities to a more accommodative view of the same, especially with the Roths test and its subsequent modifications gaining a firmer footing in American Jurisprudence.

However, notably, S.292 of the Indian Penal Code or any other law lacks a test of obscenity in line with the developments in case law. This then leaves the judge with the Hickilin Test which leaves plenty of room for the judge to decide what is obscene and to bring in his personal convictions in the process. The dangers of such a wide discretion is evident right from the stage of taking cognizance of the matter, especially when we see that all the cases that was discussed in this essay (and as is discernable from the frequent newspaper reports, some of which was cited here) were the result of private prosecutions. A magistrate who receives a complaint alleging the dissemination of obscene materials is guided only by the words of the Indian penal code, which are vague and leaves large spaces for his personal convictions on obscenity to be reflected in his judgment on the issue. Further, there appears to be too much of emphasis on the word

87 Ranjith D, See supra n.13.

88 Justice Brennan opined that obscenity could not be judged on the effect of an isolated passage or two upon particularly susceptible persons as it would then hit even materials that legitimately treated sex. Justice Warren on the other hand adopted the standard of “substantial tendency to corrupt by arousing lustful desires”. Justice Harlan regarded the tendency to direct “sexually impure thoughts” as obscene.

89 Ranjith D, See supra n.13 at para.22.

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„tendency of the matter‟ charged as obscene to deprave and corrupt those minds. Here Bhatia (1997: 248) comments that the words „tendency‟ and „tends to‟ by itself alone without being qualified with an adjective creates a lot of doubt as to whether the obscenity of the matter will be decided objectively and justly keeping in view the people‟s fundamental right to freedom of speech and expression as is manifested through works of art.90

The provision also lays too much emphasis on the readers, especially the adolescents - the intention, motivation and intellectual inclination of the author and the publisher are immaterial. This shows that the writer would have to keep in mind what he produced is not merely for the satisfaction of his intellectual emotions and inspiration but the effect it would have on the people whose minds are open to such immoral influences - which in effect becomes a sort of a pre-censorship on the writer.

Kearns P (2007: 667) argues that the urgency for amendments is more relevant when we consider that at least by practice, the prosecutions of persons for publication of obscene materials has undergone a considerable decline in countries like England.91 Amendments that direct the consideration of the materials in its entirety and in the context of the intended expression and that which includes the broader categories of exceptions propounded in the Roths Test92 would be the immediate requirement.

It is no less an interest than the interest of democracy that the statutory provisions relating to obscenity be amended at the earliest to provide more clarity on the concepts of obscenity and discard the century old Hickiln‟s Test as:

―A real democracy is one in which the exercise of the power of the many is conditional on respect for the rights of the few. Pluralism is the soul of democracy…. There should be freedom for the thought we hate. Freedom of speech has no meaning if

90 Sita Bhatia, Freedom Of The Press : Politico- Legal Aspects Of Press Legislations In India, Rawat Publications, 1997, at p.248.

91 P. Kearns., „The Ineluctable Decline of Obscene Libel: Exculpation and Abolition‟, (2007) Criminal Law Review 667.

92 The scope of Roths Test was discussed at Supra Ch. III.A.

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there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.93‖

93 Maqbool Fida Huassain, See supra n.76 at para 113.

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THE PROTECTION, CONSERVATION AND MANAGEMENT OF ANCIENT NATURAL MONUMENTS AND ARCHAEOLOGICAL REMAINS: THE CONSTITUTIONAL AND LEGAL MANDATE

A Suhruth Kumar1

INTRODUCTION The present socio-legal system survives in a globalized market, where everything has been converted into the status of commodity having higher rate of liquidity and transferability. Our natural, cultural and historic monuments also have commoditized as part of these new policy. The archaeological remains and sites have achieved such a market value to utilize them for profit making. On this social change and evolution of values, the legal and administrative policies and measures also have changed respectively. There we can see the transformation of the constitutional and legal mandate on the protection conservation and management of ancient natural monuments, archaeological sites and remains in our country. With respect to the changing formulations, the parliament has evolved a new law in this regard by 2010. Hence it is very relevant to examine the socio-economic-cultural impact of those constitutional and legal reforms in a present scenario.

THE RULE OF LAW MANDATE In different range of responsibilities, the founders of our Constitution, established the need of protection of ancient, natural and cultural monuments this perspective was incorporated in the Directive Principles of State Policy by which the rule of law establishes an obligation on the state to protect every monument, or place or object of artistic or historic value. The state is estimated to declare such materials of natural importance, introduce measures to control and regulate any kind of spoliation, disfiguration, destination, removal, disposal or export of such objects or materials. But in actual practice several questions may be raised in this regard such as who will decide

1 Mr. A. Suhurth Kumar is an Associate Professor in Law, at Government Law College Thrissur.

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the protection value, how will the value be fixed, who is responsible to impose the protection measures, what shall be the measures against law breakers have etc.

The constitution imposes a duty on the individual citizen in order to protect and preserve the rich heritage of our composite culture.2 In the absence of justiciability and enforceability how far this duty can be performed by the people. Up to what extent the law makers and law gives can ensure the practice of this legal duty rather than a letter of principle. The existing legislations and allied legal materials miserably failed to achieve the above said goal. There lies the relevance and scope of a comprehensive legislation towards the validation, national conservation, protection and management of ancient monuments and archaeological sites in our boundary. In that sense an analysis on the Amendment Act of 2010 become more important3.

POWER CONCENTRATION ON THE CENTRAL GOVERNMENT By the Act, the Central Government became more powerful to regulate any construction, reconstruction and repair work within the notified sites or monuments through the designated authorities and officials. The Central Government has been empowered to prescribe categories of ancient monuments and archaeological sites and remains with national importance in concern to their historical, archaeological and other relevant factors4. The Central Government is also empowered to classify all such sites, monuments and remains so as to provide public access, information, exhibition and other manner deems fit5.

The construction, re-construction and renovation or repair activities mentioned here denotes erection of any structure or building including addition, extension either vertical or horizontal except such activities for public water supply, electricity distribution or such public facilities. The Central Government is empowered to declare notified prohibited area or regulated area in which it can prohibit or regulate above said activities of human being6.

2 Article 51(A) (f) of the Constitution of India 1950.

3 The Ancient Monument and Archaeological Sites and Remains (Amendment And Validation) Act 2010.

4 Section 4 A (1) of The Amendment Act 2010.

5 Section 4 A (2) of the Amendment Act 2010, Section 2(La), (b) and Sections 20A and 20B of the said Act 2010.

6 Section 7 of the Amendment Act 2010 (Section 20D and 20 E of the Original Act).

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All persons shall consider these changes in law with maximum concern because it will affect the federal structure of the nation, role of the State Governments and mandate of local public to conserve and protect any such monuments or sites under their capacity. This will become the sole authority of the Central Government. The validation of such properties may lead to gradual alternation and privatization of those sites and remains for commercial and business purposes with respect to the new policy measures and governmental actions under the existing „Liberlisation Privatisation Globalisation‟ regime. Power to grant permission and license only with assent of the President shall consolidate unscrupulous authority in the Central Government and which will adversely affect the individualistic freedom and right to life and livelihood in every respects. Such a conflict of power and authorities in between different stake holders will defeat the object and aim of the legislation itself.

POWER OF COMPETENT AUTHORITY Apart from the prohibited areas, in the regulated areas, the power to grant permission is vested with the Competent Authorities. They shall intimate the impact of the project on the heritage sites, monuments or remains, to the concerned authority as the case may be, according to the prescription of the central government. Hence the recommendations of the competent authority shall be final. If the permission is refused by the authority it shall be a speaking order in writing with adequate reasons. The authority has a power to withdraw permission on sufficient reasons as the case may be. Here also considerable discretionary powers are concentrated to certain authorities with larger finality in the exercise of such powers. It can be pointed out that the principles of Administrative law and due process there under the law have been violated.7

HERITAGE BYELAWS AND ENFORCEMENT Once again the criticism of concentration of power may be established here so that the Act prescribe the formulations of having byelaws in respect of the consultation with the Indian National Trust for Arts and Cultural Heritage, which is a registered body under the Indian Trust Act 1882 and such other experts as notified by the central government. Both the powers to constitute the National Trust and notify the designated experts are vested with central government. Once again the provincial or local Governments are exhausted from their powers8. The concepts of community ownership and public trust doctrines also will be negated here.

7 Section 8 of the Amendment Act 2010 (section 20 E of the Original Act).

8 Section 20 F, 20 G, 20H, 20 I and 20 K of the Original Legislation

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NATIONAL MONUMENTS AND HERITAGE AUTHORITY The proposed authority on historical monuments and archaeological heritage consists of an appointed chairperson and not more than five fulltime members, according to the recommendation of the selection committee. Appointing authority and selection power are vested with the central government. The ex officio members of the selection committee are the officials under the central government and expert members of the selection committee are nominated by the central government. Therefore, absolute discretion of the Government of India shall reflect on such issues. The state governments shall not have any voice in this process; however such a national authority shall have their jurisdiction over the Sates territories. In addition to that the authority is vested with quasi-judicial powers and its decision can be questioned only before the apex court. This will lead to considerable hardships to the local people in related subject matters.9

ABSOLUTE POWER OF THE CENTRAL GOVERNMENT The said legislation endorses absolute and exhaustive powers to the Government of India. So that the Government attains power to issue directions to the national authority, the competent authorities in the concerned matters. The central government achieves a power to supersede the said authorities in the relevant areas. The Act entrust the central government to issue final decisions in concerned matters, apart from a question of policy or other matter. The exclusion of judicial review capacity may create hardship to the enforcement of the provisions of this enactment in actual practice of law. In law, such a finality provision cannot be justified under Administrative law and Administrative jurisprudence10.

PENAL PROVISIONS UNDER THE LAW The recent amendment has been used for enhancing the penalties such as imprisonment and fine. Maximum two years period for imprisonment and one lakh rupees for fine, was incorporated within the penal provisions.11 Offences committed by officials shall be furnished with increased penalties such as three years imprisonment and fine or both as the case may be12. The Director General shall be vested with a power to conduct

9 Section 20 L and N of the Original Act

10 Section 20 L and N of the Original act.

11 See Section 30, 30(2), 30A, and 30B of Amendment Act 2010.

12 See Section 30C of the Amendment Act 2010. 72

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surveys and inspections in prohibited and regulated areas, and their result shall be submitted to the central government13. The interrogation power, the evidentiary value and the admissibility of information etc. also depends on the central government and officials there under.

INTERNATIONAL DOCUMENTS AND NATIONAL RESPONSIBILITY There are two relevant Conventions and two other documents in International law on the respective subject matter. The UNESCO Convention in1972 conceive the protection of the world cultural and natural heritage such as architectural and archaeological properties as well as physical, biological and geological assets along with natural sites. The traditional causes of decay, change in socio economic activities, damage and distribution, gravity of new dangers, threats etc. shall be considered as part of the conservation and protection measures14 Identification, protection, conservation, preservation, transmission to future generations in respect of cultural and natural heritage shall be the essential responsibility of the member countries. This convention provides for the establishment of world Cultural and Natural Heritage Fund facility and educational programmes so as to support the basic objective of the convention.

The other document15 was conceived on the deep-seated inter dependence between the intangible cultural heritage and tangible cultural and natural heritage, under the globalization and social transformation process, phenomena of intolerance, deterioration, disappearance, destruction such intangible cultural heritage, lack of resources for safeguarding etc. were considered while resolving such a document. It was intended to evolve a binding multilateral instrument, enforce international agreements, recommendations and resolutions, build up greater awareness among the people and extinct international community contribution. The purpose of safeguard, respect, awareness, co-operation and public assistance were propagated through those materials. The essential definition itself denote practices, representation, exposure, knowledge and skills with respect to the assets including oral traditions, performing arts, social practices, local knowledge, crafts etc. The term safeguard denotes

13 See Section 35C of the Amendment Act 2010

14 UNESCO Convention on World Cultural and Natural Heritage 1972, recognised by the meeting from 17th October to 21st November 1972.

15 UNESCO Recommendations on the safeguarding of Traditional Cultural Art and Folkfore1989, Universal Declaration on Cultural Diversity 2001 and Istambul Declaration of 2002 ratified by the 3rd Round Table of Ministers of the States.

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identification, documentation, research, preserve, protect, promote, enhance, transmit, such assets through formal and informal means and revitalization of such assets. International co-operation for this purpose is guided to the establishment of Intangible Cultural Heritage Fund facility and establishment of committee on the said subject matter under the umbrella of United Nations.16

CONCLUSION Hence absolute exclusion of the local communities, the local governments and State Governments from the allied sections may result in a great blockade to the real performance and practical enforcement of the concerned legislations. There is a larger scope for reform and revisits to laws concerned here. In depth discussion and re- structuring is essential in the enactment in order to protect the federal policy, social control and community ownership on our rich cultural, historical and archaeological monuments, sites and remains in further course of time. People collectives, their initiatives, supported with legal authorities shall be with the function of conservation, protection, and management of such properties with respect to the public trusts, precautionary and defaulters‟ liability principles.

16 Section 20 L and N of the Original Act.

Afterthoughts

Elections and media: Regulation of opinion polls

Aditi Choudary, WBNUJS

Election funding in India – Forming pathways into the world of corruption

Enakshi Jha, NALSAR

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ELECTIONS AND MEDIA: REGULATION OF OPINION POLLS

Aditi Choudhary1

INTRODUCTION Media plays one of the most potent and formidable roles in ensuring free, fair, peaceful and transparent elections. Its role as a watchdog is crucially beneficial to the effective conduct of fair and free elections. The efficient dissemination of information and awareness with regard to different aspects of the political parties, candidates and constituencies so involved, further make it an indispensable part in the process of elections. While primarily it functions to realize the electoral rights of the citizens thereby furthering their freedom of speech and expression; certain conflicting paradigms might arise. Opinion polls feature in one such zones of conflict between the electoral rights of the citizens, their freedom of speech and expression and the right to the freedom of the press. Globally, various approaches have been developed to tackle the conflict. This paper traces the conflict that forms the background of the legal debate regarding opinion polls, thereby suggesting innovative methods to resolve it efficiently.

OPINION POLLS: CONFLICTING PARADIGMS Opinion polls refer to the pre-election surveys carried out to analyse the preferences of the voters. They have been identified as one of the pivotal instruments to enhance awareness of the citizens and encourage public debate on governance and coalescing public opinion.2 On the one hand, some analysts argue about their importance as guides to the relative honesty of the elections,3 While on the other hand, in certain extreme instances, their significance has also been emphasised for the determination of gap

1 Aditi Choudhary is a B.A.LL.B. (Hons.) student of West Bengal National University of Juridical Sciences, Kolkata.

2 Anand, Aarthi S., and Celia Joanne Jenkins, „Exit Polls: Debating Freedom or Fairnes‟, Economic and Political Weekly, Vol. 39, No. 46/47, Nov. 20-26, 2004: 4971-4973.

3 Sudhanshu Ranjan quoting Dick Morris, a US political consultant, „Why Ban Them?‟, DECCAN HERALD (Bangalore) available at http://www.deccanherald.com/content/107515/why-ban-them.html [accessed on: 29th October 2014].

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between actual public opinion and the final electoral verdict, hence bringing to surface inconsistencies which may ultimately point towards the relative fairness of the elections.4

However, despite the significance of opinion polls as an important tool of the media to enhance the levels of fairness in the election process, they have been subjected to severe criticisms from different dimensions. It has been argued that such surveys may unduly influence a voter‟s decision making. Moreover, it has been consistently contended that these polls may be subject to manipulation at many levels, for instance, in the choice of questions, the choice of sample, and the time that these questions were asked, etc.5 While on one hand, it may end up reflecting a nonexistent public opinion trend in its results, this may also leave tremendous scope of interpretation for the analysts of the survey which may be subject to misuse. It is often perceived, therefore, that polls and projections may have a distorting effect on the vote, rather than simply reflecting public sentiments.6

Another major argument given against these polls is regarding their potential of affecting the voting behaviour, by influencing the independent decision-making by the voters and may prompt them to vote on external motivation of the polls. It may work either way: Herbert A (1954: 245-253) advances a voter may get motivated to vote for the candidate allegedly shown to be ahead according to the polls for psychological motivation of being on the winning side (bandwagon effect) and on the other hand, he may be sympathetically motivated to vote for the losing candidate (underdog effect).7 The direction of influence is insignificant. As such, Hennessy (1965) and Fleitas W. (1971: 434-438) argues that these polls might have an effect of hampering the independent decision-making process by the voters.8 These arguments have often

4 Ibid.

5 Article 19 Organisation, Global Campaign for Free Expression, Comparative Study of Laws and Regulations Restricting the Publication of Electoral Opinion Polls, January 2003, available at www.article19.org/pdfs/publications/opinion-polls-paper.pdf [accessed on: 29th October 2014].

6 Ibid.

7 Simon, Herbert A., „Bandwagon and Underdog Effects and the Possibility of Election Predictions‟, Public Opinion Quarterly, XVIII (Fall, 1954), 245- 253, available at http://www.jstor.org/stable/2745982 [accessed on: 29th October 2014].

8 See, Hennessy, Bernard C., Public Opinion, 141, Belmont, Wadsworth Publishing Co. Inc., California, 1965 as cited in Daniel W. Fleitas, „Bandwagon and Underdog Effects in Minimal-Information Elections‟, The American Political Science Review , Vol. 65, No. 2 Jun., 1971, at p. 434-438, 78

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prompted many democratic countries across the globe to control, regulate and also in some cases ban such polls.9

Many of these arguments have held ground in India and have been instrumental in forming the current view about opinion polls both in the case of regulatory institutions as well as the civil society. After the major media highlight on this issue in 1999, it was surprising that the issue of opinion polls did not gain much focus in the National Commission to Review the Working of the Constitution (2001). The proposed electoral reforms by the Election Commission of India in 2004,10 however, identified the influencing potential of opinion polls and suggested that some regulatory mechanisms should be enforced in this regard. The report acknowledges that prohibition of opinion polls would be in contravention to Article 19 (1) of the Indian Constitution. As such, certain measures of information disclosure were suggested to regulate the use of such polls.

Subsequently in the Report of the Electoral Reforms Committee in 2010, the possibility of manipulation of opinion polls was reiterated. However, a stricter position was adhered during this time and prohibition of conduct and need to publishof the opinion polls during the voting process was recommended. The report suggested the extension of the 48-hour blackout in the case of exit polls to opinion polls. Further in 2011, the then Chief Election Commissioner S.Y. Quraishi suggested a ban on opinion polls during a national conference.11

As for the opinion held by the civil society in India, the recommendations of electoral reforms put forward by the Association of Democratic Reforms as well as National Election Watch in 2011 can be illuminative. The recommendations supported the available at http://www.jstor.org/stable/1954459 [accessed on: 29th October 2014]

9 Other democracies which have employed regulatory measures against opinion polls include Canada, Greece and so on. See e.g. Article 19 Organization, Kenya: Publication of Electoral Opinions Polls Bill, ARTICLE 19 ORG. available at http://www.article19.org/resources.php/resource/2969/en/kenya:-publication-of-electoral- opinion-polls-bill [accessed on: 29th October 2014].

10 Proposed Electoral Reforms , Election Commission of India (2004), available at http://eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf [accessed on: 29th October 2014].

11 DC Correspondent, „CEC speaks up for politicians, parties‟, Deccan Chronicle (Chennai), Feb 13, 2011, available at http://www.adrindia.org/media/adr-in-news/cec-speaks-politicians-parties [accessed on: 29th October 2014].

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position taken by the electoral reforms committee in its background paper in 2010 and suggested inclusion of opinion polls in the purview of Section 126A.

The significant questions that deserve consideration here are, whether the adverse effects of opinion polls grave enough to justify stringent regulations on media? Do these regulations have a legal basis? Are the concerns put forward by the political civil society institutions of India legitimate? Is a blanket ban on these polls, as is being proposed in India almost unanimously by the political parties, the only way to resolve the conflict, or can it be resolved by adhering to certain mid-way mechanisms? These are the questions that the following parts of the paper will strive to answer.

OPINION POLLS: CONTEMPLATING THE CONFLICT

Legal Background Opinion polls have undeniable free speech elements. Not only do they seek to fulfil the voter‟s right to information by helping him/her in making an informed choice, it is also prima facie validated by the freedom of speech and expression of the voters as well as the press. As such, any regulations imposed upon them would have to satisfy the legal benchmarks in this regard to gain validity.

On an International level, instruments like Universal Declaration of Human Rights12 and The International Covenant on Civil and Political Rights13 guarantee the right to freedom of expression, the right of the public to receive information and ideas, as well as the right of the mass media to impart information and ideas. However, these rights not being absolute in nature do provide for a scope of regulation if certain conditions are met. These conditions broadly include safeguarding of public interest14 or „existence of a pressing social need‟15.

12 Universal Declaration on Human Rights, Article 21; UN General Assembly Resolution 217A(III), adopted 10 December 1948.

13 International Covenant on Civil and Political Rights, Article 19; UN General Assembly Resolution 2200A(XXI) of 16 December 1966, in force 23 March 1976.

14 Ibid. Article 19(3).

15 Sunday Times v. the United Kingdom, 26 April 1979, Application No. 6538/74, para. 59 (European Court of Human Rights).

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In the case of the United States of America, where the expressional freedom has been given quite broad purview, the conditions are similar. Although the Congress has been eager to regulate the conduct and publication of election projections during elections,16 the judicial position in this regard is not supportive.17 As early as in 1988, the legislation regulating early election projections was held to be unconstitutional and in contravention to the First Amendment which guarantees free speech and free press.18

In the Indian context, The right to freedom of expression guaranteed by Article 19(1)(a) of the Indian Constitution, recognised as a basic feature of the Constitution, can be curtailed only on specific grounds mentioned in Article 19(2).

As is discussed above, the broad arguments pressed against opinion polls pertain to their unreliability, potential of manipulation and their effect on the voting behaviour. In the Indian context, among others, this forms the basis of increasing demands of a blanket ban on opinion polls.19 In theory, these arguments do not seem to fall under any of the conditions that may justify regulation on the conduct and propagation of such polls. Therefore, to determine the position of opinion polls in this legal backdrop, the practical gravity of its alleged effects on the electoral behaviour needs to be gauged.

Adversities of Opinion Polls: In Practice Ideally, an independent decision making is expected of the voters. Secret ballot helps preserve this independence. Opinion polls, on this view, jeopardise the independent decision-making requirement of voting by tempting the voters to follow the opinions of others. Mehta forwards the secondary argument in this regard is that opinion polls may bring elections to a premature close, by influencing voters.20

16 Henry Cohen, „Election Projections: First Amendment Issues‟, CRS Report for the Congress, available at http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RS20762.pdf [accessed on: 29th October 2014].

17 Jackie Kinney, „Restraining Network Election Projections: Questions of Legality and Propriety‟, 6 Comm. Law. 3 1988.

18 CBS Inc. v. Smith, 681 F. Supp. 794 (1988).

19 See supra n.3.

20 Pratap Bhanu Mehta, „Exit from Exit Polls‟, Tehelka, available at http://www.tehelka.com/story_main1.asp?filename=op050104Exit.asp [accessed on: 29th October 2014].

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While concerns regarding the effects of such polls on the voting behaviour have been recognised broadly, they are not sufficient to license broad restrictions on opinion polls, in part because they overestimate the effect of these polls on the independence of voters.21

These polls are majorly said to affect the indecisive and relatively uninformed voters and it is this set of people that the majority of arguments of influencing voting behaviour are directed at. The Canadian Supreme Court, while assessing this issue, made an interesting observation in this regard. It held that the government “cannot take the most uninformed and naïve voter as the standard by which constitutionality is assessed.”22 Courts in many other established democratic countries have questioned the assumption implicit in bans that voters are uninformed and naive, as well as the implications of blanket bans on opinion polls.23

There is no research that establishes such surveys significantly influence the way the electorate votes in India. However, Fleitas W. (1971: 434-438) concludes that in United States of America, mere poll results are insufficient to impel the voters to switch their votes, except in the cases of minimal information elections characterized by lack of identification and debate on the issues, little evocation of interest on part of the voters, etc.24 It is submitted that election process in India with massive campaigns and media coverage cannot be characterized as such.

But even if one were to concede that they could have some impact, the possible influence from other quarters cannot be negated as well, such as the possible influence from newspaper columnists, politicians, etc. who tend to predict the victory of one party or another in the midst of the election, falls under similar classification.25 These media

21 Ibid.

22 Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877.

23 See supra n. 5.

24 Daniel W. Fleitas, „Bandwagon and Underdog Effects in Minimal-Information Elections‟, The American Political Science Review, Vol. 65, No. 2, Jun., 1971 at pp. 434-438, available at http://www.jstor.org/stable/1954459 [accessed on: 29th October 2014].

25 Opinion, „Obsessions die hard‟, The Hindu (Delhi), February 20, 2009, available at http://www.thehindu.com/todays-paper/tp-opinion/obsessions-die-hard/article358489.ece [accessed on: 29th October 2014].

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aids usually exert a subtle but disguised influence on the voters, among which election polls come out to be a fairly rational and neutral aid.26

Also, Pre-censorship in India is permitted only if the conditions mentioned under Article 19(2) of Indian Constitution are met, otherwise it is rendered unconstitutional.27 As mentioned before, this is not the case with opinion polls. As such, imposition of a blanket ban just on the mere chance of manipulation and undue influence may amount to pre-censorship which would impose an unreasonable restriction upon free speech.28

Getting rid of opinion polls would only lead to exposure of the public to unscientific and probably inaccurate assertions about the situation, in many cases presented by individuals or organizations who take an extremely partisan or ideological approach to presenting the facts.29 As such, opinion polls should not be perceived as an exceptional tool to distort the decisions of the voters, but as a scientific method, which, if efficiently used, can aid in meeting the ends of democracy. In such a scenario, enforcing safeguards and regulatory measures to mitigate the negative impact of opinion polls seems like a better option than their outright rejection from the political scene.

In this regard, Noorani AG (2009) argues on similar lines in the Indian context, that excluding any kind of influence in an open society to protect the voter is neither possible nor desirable30. He opines:

―(A voter) cannot have his mind sealed from ―external factors‖. A voter has every right to know the election trends if he is to make an intelligent choice. One voter might wish to do his bit to arrest the winning trend, another, to accentuate it. The choice is his.‖

26 Wolfgang Donsbach, „Who is afraid of Election Polls? Normative and Empirical Arguments for the Freedom of Pre-Election Surveys‟, ESOMAR, February 2001, available at http://wapor.unl.edu/wp- content/uploads/2011/02/who-is-afraid-of-opinion-polls.pdf [accessed on: 29th October 2014].

27 See Thellur M. Dharmarajan, Editor v. The Union Of India, (1977) 2 MLJ 22.

28 See supra n.2.

29 See supra n.26.

30 AG Noorani, „E.C. and Opinion Polls‟, Frontline, Volume 26 - Issue 15, Jul. 18-31, 2009.

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Opinion and exit polls enrich voters‟ understanding of popular perceptions and how they shape the democratic process. While it is true that they do have a potential to be manipulated, a credible poll would make it a point to publish information about who commissioned it, which agency conducted it, the sample size and other relevant methodological details.31

Furthermore, in the modern world, where access to the Internet and satellite television is becoming ever more commonplace, bans of these sort barely starching toll national borders may no longer be viable. The international nature of Internet, now newly empowered by the tools of social networking, has rendered measures like election reporting blackouts obsolete.32 Other variants, such as podcasting, the transmission of audio files, RSS (Really Simple Syndication) and peer-to-peer networks are further enhancing the challenge of regulation. A better approach therefore would be to enhance the reliability, efficiency and propagation mechanism of such polls so as to resolve the conflict.

RESOLVING THE CONFLICT Opinion polls have undeniable benefits which justify the legal position that prevents them from being made unlawful.33 Nonetheless, to strike a balance between the rights of the voters, the rights of the press as well as need for free, fair and independent electoral process, certain regulatory measures may be taken. Global developments in this regard may be looked into to construct an efficient regulatory mechanism.

Regulatory Mechanisms An extremely liberal approach can be to leave the regulation to the market forces with different media houses coming up with different opinion polls and cancelling out any effect of manipulation. Alternatively, regulation of media can be broadly done through the approaches of self-regulation, co-regulation or external regulations.

Self-Regulatory Framework is the system by which a media organisation deals with its own disciplinary and legal issues, without being publicly regulated by an external body.

31 See supra n.25.

32 ACE Project, Media and Elections: "New" Media, available at http://aceproject.org/ace- en/topics/me/meb/meb03/meb03b/default/?searchterm=internet [accessed on: 30 October 2014].

33 See supra n.2.

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This model applies normally to the private press that issues internal codes of conduct and guidelines on professional ethics.34 An instance of self-regulation being adopted by the media houses is the BBC‟s internal self-regulation guidelines, which give due . Another instance can be the United States where many voluntary associations of mass- communication specialists have adopted codes of ethics or standards of practice that govern the conduct of their members.35 For instance, electronic journalists are signatories of codes like the Code of Ethics and Professional Conduct of the Radio Television News Directors Association UNCLEAR Sentence. As Kaid & Jones (2004) suggests, this Code calls for news professionals to conduct themselves according to specific standards in six areas: public, trust, truth, fairness, integrity, independence and accountability.36

The process and methodology used in the aforementioned examples can be imported and customised to suit the needs of the Indian political scenario. The Press Council of India can play a central role here to integrate the media community and adopt a mid- way feasible methodology concerning the conduct and publication of opinion polls.

Alternatively, a Co-regulation model can also be adopted. It is the model combining elements of self-regulation (and self-monitoring) and traditional public regulation to form a new and self-contained regulatory system for media coverage of elections. In this system, the regulatory body often supervises the implementation of rules freely determined by the media. Adoption of this system would require the integration of the legislature, the Election Commission, the Press Council as well as representatives from the main stream media to come together and discuss and contemplate their respective interests so as to come up with a workable and feasible regulation system.

The third regulatory model is the model of external regulation. It is the system where rules and laws issued by public institutions govern the activity of broadcasters during the election period. This regulatory model is primarily useful in imposing stricter regulations in nations with a history of government control over the State media or where there is a lack of confidence among political parties, journalists, and

34 Giovanna Maiola, Michael Meyer-Resende, „Regulation of Mass Media Activities during Elections‟, Project for the OSCE, in Ukraine 23 September 2008, available at www.osce.org/ukraine/37893 [accessed on: 30 October 2014].

35 Ibid.

36 L.Lee kaid, C.A. Jones about United States of America, in The Media and Elections: A Handbook and Comparative Study, B.P. Lange and D. Ward (eds.), London: Lawrence Erlbaum Associates, 2004.

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institutions.37 However, imposing balanced regulations which are directed to tap the potential of the media with adequate safeguards can make this model workable in the Indian scenario. Measures like setting and checking the information disclosure requirements, ensuring minimal bias during the process of opinion polls can be enforced efficiently through this model. However care must be taken that the active involvement of the public institutions don‟t render the regulatory framework a puppet in the hands of the ruling parties

Benchmarks for Regulation For achieving the purpose, certain basic principles should be incorporated in the framework of the regulatory mechanism. The primary concern should be to enable the audience to make an informed choice with minimal interpretational ambiguities. The publication and interpretation of the opinion polls can lead to major misunderstandings and debates. Therefore, certain basic information must be provided to the readers so as to provide the opportunity of judging for themselves the evidence presented and deciding whether or not they agree with any conclusions drawn from the research. As Yadav (2013) opines the details like the track record of the organisation carrying out the survey, details of the sponsor; sampling frame, sample size and the exact technique used to draw the sample; the social profile of the achieved sample; where, when and how were the interviews conducted; the exact wording of the question and sequence of questions asked, etc. should be mandated to be disclosed.38 Adhering to such practice will ensure that the voters have reasonable access to the key information and standards which form the basis of the survey, so as to reduce the risk of the published reports of the findings to be misleading.39

Taking a step ahead in this direction, the pre-election polls can be standardized to enable the comparison of survey results and to enhance their credibility and trust in their results.40 Also, assessments from experts and the public can be used to gain and enhance

37 Ibid.

38 Yogendra Yadav, „Opinion Polls- the way forward‟, The Hindu, Nov 21, 2013, available at http://www.thehindu.com/opinion/lead/opinion-polls-the-way-forward/article5339890.ece [accessed on: 30 October 2014].

39 See supra n.26.

40 World Movement for Democracy, „How Can Civil Society Actors Use Public Opinion Research to Improve and Strengthen Democracy?‟ available at: http://www.wmd.org/assemblies/third- assembly/workshops/research/how-can-civil-society-actors-use-public-opinion-researc [accessed on: 30 October 2014]. 86

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credibility and trust in survey results. Here, an obvious hurdle in the path of standardization of the polls would be integrating the numerous polls conducted by various media houses in and outside the country. A possible solution can be issuing of a consolidated report on these polls by a set of experts facilitated by organizations like the Press Council of India in partnership with the Election Commission to lay down a clear picture of the data obtained from all the sources.

Secondly, steps must be taken to make sure that the masses understand the limitations involved in the survey process and the distinction between public opinion and beliefs as demonstrated by the survey viz-a-viz the actual behavior.41 The audience should be made aware of the element of estimation and inexactness involved in the process. The results of the opinion polls should in no manner be projected as future projection of the results but as observations made from a social experiment with a scientific basis.

The sampling method used should also be disclosed, as this might have strong implications on the representative trends that are eventually obtained.42 This factor has a special significance in the pluralistic Indian society which often votes in accordance with certain pre-determined allegiances of caste and community.

Journalists, women‟s groups, human rights groups, etc., play a major role in interpretation and assimilation of the results of such polls to the public. As such, they should be made aware and if necessary trained specially on how to understand public opinion surveys so they can interpret, use, and disseminate the results and correct errors in survey reports.43

The pollsters conducting opinion polls can be encouraged to extend the scope of the survey to exploring of the reasons for party choice and opinions on important campaign issues, rather than confining themselves to mere determination of voting intentions.44 This would not only enhance the socio-political significance of the polls but would also help in propagating the inference of scientific social research, rather than a mere number

41 See supra n.16.

42 Ibid.

43 See supra n.38.

44 See supra n.26.

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game. In addition, all the public opinion groups and members of the civil society could be involved and asked to provide their input in conceptualizing the research process while conducting an opinion poll.45

A Suggested Model It is required that the Election Commission, the civil society as well as the press integrate and establish an efficient and interactive framework towards this objective. A possible arrangement in this direction is suggested hereunder. A specialized independent body can be established, with the responsibility of formulating a standard code of conduct for the media houses and pollsters in lines with International research codes and guidelines, for instance the ESOMAR Charter. This role can also be delegated to the Press Council of India or the News Broadcasters Association, provided care is taken to ensure a specialized focus on this issue while taking into account all the aspects including detailed disclosure of research methods, accuracy, as well as issues of ethics and public influence. Further, during the elections, a time limit should be set after which the media houses should not be allowed to conduct any surveys.

After this deadline is reached, all the data collected and portrayed by the media houses should be consolidated by the experts of the aforementioned independent body to form a report which analyses and compares the data provided, with special emphasis on factors like the research method used in the surveys, the target groups, and also the reasoning behind the choices of the respondents. This will not only put forward an integrated analysis of the numbers but will also tell the audience what those numbers really signify. Civil society organizations like ADR and agencies like Market Research Society of India can provide expert support in this regard, while also keeping into the check the autonomy and impartiality of the final report. Further, all the media houses, whether electronic or print, which were party to the collection of the data used should be mandated to broadcast the particulars of this report. As such, care must be taken that the deadline for conducting opinion polls is well in advance so as to leave a margin for the integrated analyses to be carried out.

This is one possible model which may be adopted to ensure regulated, transparent and impartial usage of opinion polls during elections. It can be further polished and modified for practical enforcement. Further, many other permutations and combinations may be arrived at, which successfully cater to the interest of all the stakeholders

45 See supra n.38.

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involved in the election process and ensure that opinion polls may become a part of the elections process without hampering its fairness.

CONCLUSION In the light of the above discussion, it is essential to note that any sort of ban or regulation on opinion polls, restricting the right to free expression requires a strong legal justification to accord for validity. The case of opinion polls clearly lacks it, under the national as well as international legal frameworks. Contemplating the potential infringement of rights of the voters as well as the press which is inherent in the issue of opinion polls, any stringent regulatory measure cannot be supported in this regard.

Many rightly argue that the major issue concerning opinion polls is not of democratic right to information but transparency in conduction such polls. As Vrinda G. (2014) suggests if a detailed methodology of the election projections shown is provided, there would be minimal room for impartial and unethical practices in this regard.46 This would enhance public confidence in such polls and would mitigate the need for a stringent regulatory framework. To ensure that international standards of transparency and disclosure are followed in this regard, an innovative model of self-regulations should be adopted which aims at utilization of opinion polls as an effective tool to formulate an informed public opinion, while preventing its abuse. Systematic public opinion is crucial in a democratic culture47 and it would be better is we recognise its importance and ensure its efficient usage rather than dismissing it on political whims.

46 Gopinath, Vrinda., „Not a ban, says Partha Rakshit, Indian rep to ESOMAR‟, Altgaze, November 4, 2014, available at http://www.altgaze.com/?p=1103 [accessed on: 30 October 2014].

47 See supra n.38.

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ELECTION FUNDING IN INDIA – FORMING PATHWAYS INTO THE WORLD OF CORRUPTION

Enakshi Jha48

Being the World‟s biggest democracy, India undoubtedly should envisage the true spirit and credo of free and fair elections with the power of selecting leaders rests in the hands of the populous. In a country with a population of 1.24 billion,49 the responsibility of political parties is and the need for reliable and honest leaders is indispensible. From forming policies controlling the economic and social sanctions of the Indian population to formulating statutory welfare schemes and ensuring the implementation of the same, the leaders of the country play an imperative role in shaping a rapidly burgeoning country.

This brings us to the essential part played by the very selection process by which these leaders are elected. Elections in India play a pivotal role in the finding a group of leaders to help attain the country‟s popular goals. Unfortunately, financing of elections by corporate and others with vested interests resulted in the nexus between politicians and businessmen lobbying to protect their interests and this has long tarnished the image of the Indian Polity ever since 1950.

Political parties receive massive funding that have not been accounted for and remain a secret due to the lack of transparent election laws. Funds flow in from individuals with black money like businessmen, corrupt government officials and politicians hoping to protect their economic interests. The authenticity and sources remain unaudited because those in power are under obligation to protect the interests of those who funded their election campaign. Further the parties cement a stronger vote bank and leads to a vicious cycle in which the politicians sustain their own and other businessmen‟s interests in return of financial aid to win elections. This thoroughly undermines the

48 Enakshi Jha is a B.A. LL.B student of NALSAR University of Law, Hyderabad.

49 Ministry of Home Affairs, Government of India, Census of India-Population Finder, http://censusindia.gov.in/PopulationFinder/Population_Finder.aspx, [accessed on: 1 September 2013].

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needs and the interests of the common man in the topography of Indian democratic governance.

This paper has attempted to comprehensively deal with the various propositions attached to financing of election campaigns and the sources of the same. The relationship between this financing and power that leads to corruption has been exposed in the light of legislative reforms. The legislative accountability mechanism to audit such financing has been substantiated upon along with the autonomy of the Judiciary in playing a protective role in safeguarding democratic interests. Lastly, certain measures to curb such financing bred corruption and these have been highlighted to provide a refreshed view on the prevailing problematic situation in India.

HISTORY OF ELECTION FINANCING IN INDIA Initially, financing of elections in India was restricted to contributions of individuals, which were further supported by corporate contributions that were limited and to be accounted for. In 1951, the Representation of People‟s Act put a cap on the limit of election campaigning expenses along with the introduction of disqualification of candidates exceeding such limits.50 Meanwhile, black money generated as an after effect of high tax regime of 1950s, which could not be accounted for in banks otherwise, had been pumped in scrupulously for financing the elections. The Santhanam Committee and the Wanchoo Committee brought this to light51.

In 196852 to prevent corporate intervention in the electoral system a ban was established on political parties receiving corporate donations53 that were not substituted by any form of state funding for campaigning. This in turn increased the reliance on black money for such expenses and was detrimental to the success of the corporate donation ban. The

50 Gowda, Rajeev M.V., and E. Sridharan, „Reporting India‟s Party Financing and Election Expenditure Laws‟, Election Law Journal, Volume 11, Number 2, 2012, http://casi.sas.upenn.edu/system/files/Gowda- Sridharan,+ELJ+paper,+Reforming+India's+Party.pdf [accessed on: 1 September 2013].

51 Committee on Prevention of Corruption, 1962 was headed by K Santhanam; The Wanchoo Committee was appointed in 1971 to examine and suggest legal and administrative measures for unearthing black money and countering evasion and checking avoidance.

52 Tummala, Krishna K., Combating Corruption, Lessons out of India, http://www1.imp.unisg.ch/org/idt/ipmr.nsf/ac4c1079924cf935c1256c76004ba1a6/8d7b05bc0b50a162c12575 99003ae46d/$FILE/Tummala_IPMR_Volume%2010_Issue%201.pdf, [accessed on: 31 August 2013].

53 See supra n.3.

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control over financing the elections was further fortified by the Supreme Court judgment in Kanwar Lal Gupta v. Amar Nath Chawla54 that laid down the inclusion of party expenses toward a candidate, in his or her total election expenditure. However in 1975, an Amendment was made to Explanation 1 of Section 77 (1) of the Representation of People‟s Act to not include expenses unsolicited by the candidate in his total expenditure. In 1979, an exemption on wealth and income taxes was granted to political parties on their filing of annual returns on donations and also on revealing the identity of such donors.55

Later, in 1985 the Companies Act allowed corporate donations through Section 293A. This donation could not be more than five percent of the total net profits of the company and were to be audited by the company‟s board of directors.56 This was followed by the suggestions of the Dinesh Goswani Electoral Reforms Committee, 1990, that suggested a limited state funding for basic campaign expenses along with banning corporate donations completely. However no alternative for sources of electoral expenditure was mentioned in the report and also the maximum expenditure was not tabulated for.57

The rise of liberalization in 1991, brought to focus corporate donations and this was reflected by the Supreme Court‟s decision in the Common cause58judgment ordering political parties to file income tax returns. Explanation 1 of Section 77 of the Representation of People‟s Act was interpreted by the Court to be applicable only on the submission of audited accounts of income and expenditure of the parties. This was an attempt to introduce transparency into the political system. In 1998, a partial state subsidy was granted to political parties (by allowing them limited free radio airtime) and the Indrajit Gupta Committee on State Funding of elections suggested supply of such subsidy in the from of kind (petrol, limited supply of raw material for campaigning). It suggested that parties that fail to file their return should not be granted

54 AIR 1975 SC 308.

55 Oberoi, N., „Reforming Election Funding‟, NUJS Law Review, 2008, available at http://www.nujslawreview.org/pdf/articles/2008_1/namit_oberoi.pdf [accessed on: 1 September 2013].

56 Kafaltiya, Anand B., Democracy and Election Laws, Deep and Deep Publications, 2007 Edition, at p.380.

57 Venkatesan , V., „For state funding of elections‟, Frontline, Vol. 16 ,No. 04, Feb. 13 - 26, 1999, available at http://www.frontline.in/navigation/?type=static&page=flonnet&rdurl=fl1604/16041100.htm [accessed on: 2 September 2013].

58 1996 SCC (4) 33.

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such subsidy.59In 2003, the declaration of criminal records on candidates was made mandatory and most importantly the Election and other related Election Laws Amendment Act was passed which made personal and corporate donations fully taxable and mandates political parties to disclose their donations above Rs. 20,000.60

SOURCES OF FINANCES In India, often the actual expenditure of political parties on elections is ten times the quoted expenditure. This exposes the involvement of large-scale money in assuring the very essence of democracy. This makes it essential to scrutinize the sources of such financing. Often such sources of financing are illicit and unaccountable. They comprise primarily of black money and corporate contributions pooled in with the money of rich and large scale businessmen looking to escalate their profits. The abundance and availability of such large sums of money exposes the precarious existence of our democracy.

Construction Contractors and Real Estate Business Individuals Contractors undertake a service or provide labor and materials under a contract. This includes builders, development investors and covers contractors dealing in construction and maintenance of roads, hospitals, airports, food distribution and subsidies and other government responsibilities under an agency contract. There is a huge contractor – politician‟s nexus that weaken the democratic system. However contractors must not be bemused by Private organizations, as contractors are usually individuals (individual businessmen) or a smaller nexus of individuals with a common goal. It can be safely established that a quid pro quo relationship exists between such political parties and contractors especially those involved in the realty sector.61 Politicians who are already established and ventured into business form informal coordination relationships with contractors and compel them to give them money for electoral spending.

59 Committee on State Funding of Elections, Report, 1998, available at http://lawmin.nic.in/ld/erreports/Indrajit%20Gupta%20Committee%20Report.pdf [accessed on: 2 September 2013].

60 Ministry of Law and Justice India, Government of India, Background Paper on Electoral Reforms, December 2010, available at lawmin.nic.in/legislative/ereforms/bgp.doc [accessed on : 2 September 2013].

61 Kapur, D. and Milan Vaishnav, Quid Pro Quo: Builders, Politicians and Election Finance in India, http://www.cgdev.org/files/1425795_file_Kapur_Vaishnav_election_finance_India_FINAL.pdf, [accessed on: 2 September, 2013].

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In return, this political nexus grants them a levy in the form of tax exemption, subsidized raw material and further their business strategies by twisting the law and pumping in money to contractors. Contractors also find politics a viable entry to protect their economic interests, leading to a pool of contractors turned politicians who rely heavily on hefty financing of elections.62

Corporate donations This is the fertilization of a symbiotic relationship between corporate houses safeguarding their interests and politically hungry leaders. Corporate donations are the sum of money granted or donated to a particular party to support its electoral expenditure in the hope for an exponential increase in the amount generated by such corporates through the government. Political Lobbying is often used by corporates to literally “trade” in elections. Their contribution has gone through various phases imposed by the law and remains legal in India today although it is taxable and cannot be more than 5 % of net profits of the company. Foreign currency cannot be pumped in to fund the party as specified under Clause (e) of Section 2 of the Foreign Contribution (Regulation) Act, 1976, (49 of 1976)63.

Yet during elections every penny has a magnified value and is essential to the fate of the political party relying upon it. Corporate houses including old and established companies also have a say in the leaders who are elected and take office. By ensuring that they have sufficient representation in the Parliament, corporates push for the passage of bills to further their interests or stall them to inhibit laws preventing increase in their profit margins. Usually major national parties and big corporate houses share this electoral trust relationship to ensure that the balance of power lies between them and both make good money.64

62 K.C. Suri, Democratic Process and Electoral Politics in India, http://www.odi.org.uk/sites/odi.org.uk/files/odi-assets/publications-opinion-files/2690.pdf [accessed on: 29 August 2013].

63 Samya Chatterjee, „Campaign Finance Reforms in India, December 2012‟, ORF Issue Brief, http://www.orfonline.org/cms/sites/orfonline/modules/issuebrief/attachments/Issue47_136075437968.pdf [accessed on: 29 August 2013].

64 „Election Finance in India‟, The Calibre, September 12, 2012, available at http://thecalibre.in/in-depth- current-affairs/election-finance-in-india/092012/?p=1286/ [accessed on: 29 August 2013].

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Individual Donors Individual donors are citizens who are not part of an organization but voluntarily contribute towards supporting the political party. The reason behind such contribution is due to the faith of the people in certain leaders and their political agenda. In India, there is no cap on the maximum contribution an individual can make in support of a party. They are also exempted from any tax return under Section 80GGC of the Income Tax Act, 1960. 65

Contributions may range from meager amounts to a few crores. Individual donation can be made by corporates or contractors in their individual capacity and not in their organizational identity, thereby eroding the law meant to limit their contributions.

Black Money (as separately identified) This is the term used for illicit money that is unaccounted for. Often this is the money made by evading taxes and used in under-table transfers. Black money cannot be saved in banks and is usually stalked in tax havens. This money however is in circulation and is not easily traceable due to the ambiguity of its origin and transfer. In India, the heavy taxing regime of the 1950‟s catalyzed the generation of black money system66.

Politicians in power also, make their fair share of black money by taking bribes and accumulating assets while in office. Often they borrow money from close aids in the promise of reimbursing them at a high interest rate after coming to power. This goes unnoticed due to the lax implementation of electoral laws and the massive bribery of officials.

Moreover such money is often pumped into the electoral system to buy votes and makes an unworthy leader win elections. This poses a serious problem towards the democratic set up of India. 67When candidates present their expenditure, this black money is

65 Global Integrity Network, India: Integrity Scorecards, 2009 Assessment, http://report.globalintegrity.org/India/2009/scorecard/26, [ accessed on: 2 September 2013].

66 Raju Narayana Swamy, „Analysis of current initiatives in monitoring of election related expenditure‟, Indian Law Journal, Volume 4, Issue 2, 2007, available at http://www.indialawjournal.com/volume4/issue_2/article_by_raju_narayana.html [accessed on: 2 September 2013].

67 Singh, Tavleen, „Black Money in Politics‟, The Indian Express, March 13, 2011, available at http://www.indianexpress.com/news/black-money-in-politics/761674/ [accessed on: 29 August 2013].

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ignored and continues to be in circulation in the system. It is used to buy electorates, fix elections, and bribe opposition parties. High-risk investments of black money are made during elections in the hope of the party coming to power and fermenting individual interests giving rise to a vicious cycle that ultimately weakens the democracy.

While this malevolence has been recognized and criticized by the Election Commission and Supreme Court, it continues to plague India and can only be eradicated by extremely stringent electoral laws accompanied by transparent implementation and transparent accounting. The lack of state spending on campaigns is often cited as a cause of this black money cycle.

MONEY-WINNING CAUSAL RELATIONSHIP SOWING THE SEEDS OF CORRUPTION In the above discussion, the symbiotic relationship between politicians and their financiers has been brought to light thereby illuminating upon the consequent corruption that erodes the country‟s resources. This vicious cycle of corruption had almost become the face of disgraced Indian Electoral system. Primarily the objective of such heavy financing of elections is to win the vote banks. In India this is done either by distribution of free goods, often liquor, rice and electronics to win the votes of an illiterate voter who is incapable of making an informed choice. He then votes for a party that gives him a momentary material gain. 68

This luring is similar to bribing and wipes away any rationality in the minds of the poor voter who feels obliged to vote for the party giving him a bigger “bribe”. This further catalyzes the role of heavy financing in elections as political parties try to out weight the free goods of cash, kind and services to the populous.69 The bribery is often so blatant that political parties distribute cash to the voters in demand of their votes. According to the election Commission Rs. 3400 crores is distributed as bribes to voters70 and this is

68 „Free liquor to woo voters, keep party workers happy‟, Live Mint, April 26, 2009, avaiable at http://www.livemint.com/Politics/aSgEYX34RK9hdJjFmjiNfP/Free-liquor-to-woo-voters-keep-party- workers-happy.html [accessed on: 29 August 2013].

69 Editorial, „Corruption and Fairy Tale Elections‟, Economic and Political Weekly, Vol 47 No.1, Jan 7, 2012, Also available at http://www.epw.in/editorials/corruption-and-fairy-tale-elections.html [accessed on: 29 August 2013].

70 Kumar, Shailendra, Countervailing Black Money, August 23, 2012, available at http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=15698 [accessed on: 29 August 2013].

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an appalling amount. However the cost of distribution of such benefits is a mere fraction of the benefits, further then both the financial and political parties reap after the elections.

Another tactic of winning election is the use of manpower. Where bribery and the direct avail of money fails, political parties resort to violence in the form of manhandling voters, threatening to cause hurt to them, their families and their property. In certain states the same manpower is used to capture election booths and caste votes in favor of the party. This is possible only when the political parties and leaders maintains a close relationship with goons and criminals. Often candidates themselves have a personal background of criminality.71. Such a close relationship between criminals and politicians can only be maintained by interdependent monetary benefits. Elections are often seen as an apposite opportunity for criminals to enter politics. The abundance of their unaccounted wealth resources facilitates this, as political parties are willing to give them tickets, in order to cement a win.

The root cause of this is the availability of money to finance such illicit electoral activities. The money that flows in such transactions is often the taxpayer‟s money that has been pocketed by the political nexus through the lax implementation of welfare policies.72 With the increase in the tax payers base the money available for elections also increases proportionately. This gives an incentive to politicians to boost the economy as the money available to them increases and their other funders including corporates and contractors are equally benefited by this robust economic growth.73 This narrows the scope of our democracy to a puppet show run by money and controlled by this nexus of politicians and their financers.

Once in power, the leaders have the authority to formulate the laws and also look into its implementation. This gives them a compounded opportunity to indulge in malpractices and this has been solicited by the various scams that India has recently

71 Verma, Arvind, „Policing Elections in India‟, India Review, 2005, available at http://indiandemocracy08.berkeley.edu/docs/Verma-PolicingElectionsIndia.pdf [accessed on: 3 September 2013].

72 Vaishnav, Milan, „Resizing the State‟, Caravan, October 1, 2012, available at http://caravanmagazine.in/perspectives/resizing-state [accessed on: 3 September 2013].

73 Sasidharan, Keerthik, „Funding Democracy‟, Caravan, January 1, 2012, available at http://caravanmagazine.in/perspectives/funding-democracy [accessed on: 3 September 2013].

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witnessed like the 2G Scam and the Coalgate scam. The leaders control the laws that challenge their authority or pose a threat to the interests of the groups that brought them to power. Also the chance of making money through frauds or pocketing a fraction of the expenditure of Government schemes comes to them on a silver platter. The recent Food Security Bill scheme and its resource allocation audits show the presence of politicians and their puppets eating away the tax payers‟ money thereby synthesizing the country‟s downfall74. This catena between corruption and frauds caters for the ample generation of black money. This black money is further invested in realty projects or business innovations of the financing nexus (mentioned earlier ) and the growth of this capital is invested in the next elections. This makes the stakes of every election rise while the quality of the democratic setup suffers. On the other hand, this system ensures a steady source of funding to political parties who in a term of power make enough black money to feed the financing nexus and fund a portion of their electoral expenditure.

INCREASING CONTROL EXERCISED BY THE LEGISLATURE TO CONTROL THE SITUATION In India, the Election Commission of India is the apex authority that has the power to control and regulate elections and electoral spending75. It is an autonomous and independent body that upholds the virtues of a democracy. The improvement in the current situation is only possible by the diligence of the election commissions. The strict laws are passed by the legislation aid this. However the laxity lies in their implementation. Be that as it may, there has been a slow but constant metamorphosis of the Indian electoral system assisted by the legislature and the Election Commission.

An attempt to treat such malaises can be seen by the evolution of laws ranging from the Representation of People Act 1950, 1951, Presidential and Vice Presidential Act 1952, Conduct of Election Rules 1961.76However these acts failed to address key issues of the flow of money in elections and the use of manpower to win elections. Section 58(A) of

74 Tej, Krishna, Food Security Bill 2011, http://www.indialawjournal.com/volume6/issue_1/article10.html, [accessed on: 3 September 2013].

75 Chief Election Commissioner of India, 2009 General Elections: Challenges and Opportunities, http://eci.gov.in/ECI_Main/DJ/Speech%20for%20European%20Business%20Group,%20Mumbai%20- %2012.01.2010.pdf , [accessed on: 3 September 2013].

76 Chopra, Joginder K., Politics of Election Reforms in India, Mittal Publications, 1998 Edition, at p. 293.

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the RPA77 allows for the punishment of the offenders. The Election Commission endorsed this following the Justice Tarkunde Report and the Dinesh Goswami Commission Report.78 The 61st Constitution Amendment Act 1988 introduced the prohibition on distribution of free liquor to voters in the polling area. Following this in 1989, an amendment made to Act 1 of Section 58 of the Representation of Peoples Act demanded the adjournment of polling in cases of booth capture.79

Since 1971, the Election Commission has issued a Model Code of Conduct that tabulates how parties and leaders must behave during elections. It prohibits the launching of new financial or welfare schemes and keeps a check on the use of Government machinery.80The 2003 Amendment to Representations of Peoples Act guided by the Vohra committee Report mandates candidates to disclose their criminal records if any and declare the assets of his spouse, children and him.81

To ensure transparency, Section 29 (A) of RPA under Article VIII of rule 3(i) rule 3(xix) mandate financial audit of parties by the ECI.82The expenses of elections is regulated by Section 77 of the RPA and prohibits any form of excess expenditure, thereby keeping a check on the illicit financing of elections by black money and the nexus of corruption. Unfortunately Explanation 1 of this act does not include expenditures made by people apart from the candidate like his party or supporters. This subverts the scope and strength of the said section and must be amended.

77 The Representation of the People Act, 1951, Section 57(A).

78 See supra n.3.

79 Sharma, Smita, Electoral Reforms in India, http://www.preservearticles.com/2011100314425/comprehensive-essays-on-the-electoral-reforms-in- india.html, [accessed on: 2 September 2013].

80See supra n.17.

81 „Help us contain crime in Politics‟, The Times of India, July 20, 2003, available at http://articles.timesofindia.indiatimes.com/2003-07-30/patna/27179998_1_amendment-political-parties-entry- tax [accessed on: 4 September 2013].

82 Mishra, Nripendra and Nidhi Sen, Political Party reforms: Bedrock for the way ahead on electoral reforms, March 2, 2012, available at http://publicinterestfoundation.com/2012/03/02/political-party-reforms-bedrock- for-the-way-ahead-on-electoral-reforms/ [accessed on: 4 September 2013].

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In 1985 of the Indian Companies Act 1969, an amendment made to section 293, allowing 5 percent donations of net profits of three years to the election funds provided such donations must be mandatorily disclosed.83 Though this proves to be an impediment in democratic process as in most cases since donors want to maintain their political inclination unexposed and secret, it should be considered as a right step to unless and until a better method is identified.

JUDICIAL INTERVENTION The Judiciary in India especially the Supreme Court of India has assumed a position of great importance in this increasingly controlling environment associated with the interconnected world of politics and finance. It has exemplified its autonomous status as a reformatory institution in several cases. The Supreme Court in Kanwar Lal Gupta v. Amar Nath Chawla interpreted Section 77 of the Representation of Peoples Act such that as to include the candidates personal expenses in his total election expenses while the section provides for a separate account for this. This is in contravention with the object of the section and has been interpreted by the Supreme Court to include all expenses. Following this judgment in 1975, the RPA was amended and Explanation 1 was appended which stated that the expenditure of an unauthorized party should not be within the ambit of total electoral expenditure of the candidate. 84

This was challenged in P. Nalla Thampy Terah v. Union of India85where the court agreed that the presence of Explanation 1 weekend Section 77, but it was not for the Court to lay down policies with respect to elections. It was held to be a valid amendment, as it did not violate any Constitutional provisions. However in C. Narayanswamy v. C.L Jaffer Sharief86 held that Section 123 (6) of the RPA makes Explanation 1 repugnant if it is in contravention with Section 77. The court also urged the parliament to take note of this repugnancy and formulate much needed amendments to the act. This judgment was reiterated in Gajanan Bapat v. Dattaji Meghe, which further endorsed that political parties must disclose their finances and their sources and how this money was spent. Explanation 1 of Section 77 was in the news again with

83 See supra n.7.

84 Ibid.

85 1985 AIR 1133.

86 SCC 170 1994.

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respect to the Common Cause v. Union of India case that dealt with the transparency of fund collection and expenditure of parties. The Supreme Court asked all political parties to submit their accounts of expenditure for every candidate and mandated the filing of Income Tax returns.87 This matrix of Supreme Court decisions shows the involvement of the courts as a balancing agent and guardian angel of the democratic set up in India.

The judiciary has also played a quintessential role in electoral reforms in India as seen in Peoples Union for Civil Liberties & anr. v. Union of India 88in which under the direction of the Supreme Court the Election Commission made it mandatory for the electoral office to submit affidavits disclosing the assets and liabilities of candidates.

On the filing of a Public Interest Litigation by the Association for Democratic Reforms the Supreme Court made it mandatory for all candidates to provide for affidavits containing information on assets as mentioned in the People‟s Union Case.89 Section 125 A of the RPA enables this. The Supreme Court has also laid down that convicts who are serving a term in prison cannot stand for elections. With the help of the Right to Information Act and the constant effort of individuals and NGO‟s the Supreme Court has been able to instill a limited degree of transparency into the electoral system. This will echo to the lower courts as well. Hence while the role of courts is laudable, we are still miles behind form the goal of a free and fair democratic election.

A FRESH APPROACH TOWARD THE CURRENT SCENARIO To ameliorate the grim reality of Indian polity and its electoral system and practices it is paramount to instill greater transparency in the system. Transparency at every level of the election process must be instituted with the public‟s demand for stricter laws, amendments to current incompetent law and an active role of the judiciary in safeguarding the rights and interests of the common man. A few suggestions towards the same with respect to the theme of this paper have been mentioned below. Firstly, the nature of the democracy must be reflected upon and people must be educated about their right to make an informed choice especially in rural areas with a high illiteracy rate.

87 See supra n.3.

88 2003 SCC 399.

89 Anand, Rahul, Ushering democratic and electoral reforms, February 22, 2011, available at http://www.thebetterindia.com/2432/association-for-democratic-reforms/ [accessed on: 3 September 2013].

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The ethos of the polity in India needs to be refurbished and this is possible only by imposing a stronger Model Code of Conduct. This should be given statutory status90 and be penal in nature. While it may be safe to assume that moral and humane duties are blatantly ignored, it would be much tougher to ignore a Model Code of Conduct that is penalizing. Next the candidates‟ criminal record must be scrutinized and those with past criminal records must not be allowed to stand for elections.91

Presently, the Supreme Court has held that those in prison are banned from standing for elections but this must be extended to those with criminal records as well. To begin with we could start this prohibition on those who have committed more heinous crimes like murder and rape. If such candidates are put up in the candidate list the party should be disqualified from taking part in the elections. If no criminal case has been filed 6 months prior to the elections the candidate can contest elections provided he has no prior record. If there is a false fact stated in the affidavit the candidate must not be allowed to stand for elections for a minimum of five years92. On the implementation of stricter rules, there will surely be a great opposition but in the long run it will prove to be fruitful in changing the persona of India‟s electoral system.

Secondly, issues regarding the financing of political parties must be audited and scrutinized by not just the government agencies but must be made public so that it is accessible to the common man. Here a controversial change in the system would be to ban or restrict the contributions of corporate donations, contractor‟s donation and money granted by individuals. Instead there could be a state funding of elections in which every recognized national and state party is given funding from the state in the form of kind and not cash which can be used to furnish election expenses. This will ensure a more transparent system along with terminating the concept of “buying” elections.93This is in consonance with the constitution too. This can also support the

90 Electoral Reforms in India: An urgent Need, January 2, 2012, available at http://www.policyproposalsforindia.com/article.php?article_id=79&languageid=1[accessed on: 3 September 2013].

91 Election Commission of India, Proposed Electoral Reforms, 2004, available at http://eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf [accessed on: 4 September 2013].

92 See supra n.12.

93 Shah, Sabir, „Election Commission yet to check finances of political parties‟, The News, April 1, 2013, available at http://www.thenews.com.pk/Todays-News-2-168699-Election-Commission-yet-to-check- finances-of-political-parties [accessed on: 30 August 2013].

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revoking of Explanation 1 of Section 77 of the Representation to Persons Act as it does not restrict individual contributions of unauthorized sources in the total electoral budget of the candidate, thereby offsetting the section itself94. There must be an auditing mechanism that analyzed the sources of income, expenditure and payment of tax by political parties.95 An echelon system of auditing overlooked by the Auditor General should be established to maintain checks and balances and check corruption in the auditing system. These accounts should be made public for greater scrutiny. All resources received by the parties must be included in the candidate‟s expenses and must be taxed. There should also be an upper limit on such expenses and the auditing bodies to ensure these funds are not misappropriated to win elections should scrutinize the reasons of expenditure.

Lastly and most importantly people must be educated about their rights and must be coaxed to cast their vote or this democracy shall fail at the grass root level without countering any of the malpractices in the system.

CONCLUSION J.P. Naik said that ―Power is the spoiler of men and it is more so in a country like India, where the hungry stomachs produce power hungry politicians ‖ and very rightly so. This statement is apt to describe the power hunger of Indian politicians. Power in India is not just in reference to political and societal influence but resonates to soaring financial gains. This is where the Indian polity and the electoral system are flawed. Politics, power, money is substitutive and this brings the nexus of political leaders and their financial supporters together. Each of them has the sole objective of multiplying his power – financial or political. In India it is often both. The major chunk of the vote bank remains illiterate even today and can be bought over by the distribution of freebies that only ridicules the democratic setup. However no law or its instrumentation can encounter the powerful nexus of leaders and funders that share a symbiotic relationship of monetary gain through elections and coming to power. The rampant corruption in India, as exposed by the recent scams and the abundance of black money sources from tax havens abetted by the taxing regime in India further provide resources to this nexus to protect its interests while clomping upon the basic epitome of the Indian Democracy.

94 See supra n.17.

95 See supra n.43.

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It is only unto the public, the common man who is still the majority in the country and has the power to oust this nexus by uniting and demanding stricter laws, auditing and transparency in the electoral system. Voters must be educated of their rights in a democracy and be made vigilant to recognize any discrepancy. Education of this must be granted in schools, colleges and advocated through the media by radio or television ads along with unbiased newspaper articles.

India is still the world‟s largest democracy but it will take great effort on the behalf of the people, the Government and the political nexus to make it the World‟s most successful democracy. The power lies within us and we must discern this possibility and make it our reality.

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Critique

Paternity – Presumption or Truth? : Nandlal Wasudeo Badwaik v. Lata Nandlal Badwik & Anr [2014 STPL(Web) 6 SC ]

P S Janardhanan, GLC Thrissur

Doctrine of Stare Decisis v. Per Incuriam with Special Reference to Basheer M Picha v. Indian Bank [2013(2) KLT 951]

A K Mariamma, GLC Calicut

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Paternity – Presumption or Truth? : A commentary on Nandlal Wasudeo Badwaik v. Lata Nandlal Badwik & Anr [ 2014 STPL(Web) 6 SC ]

P S Janardhanan1

INTRODUCTION There is a popular saying, “Paternity is a presumption whereas maternity is a truth.” Even though a presumption, it has got more weight than the truth in our society. That‟s why it is fought more in the court rooms than the “truth”.

In law, there is a presumption that a child born to a woman during the subsistence of a valid marriage is fathered by the husband of that woman. Until recently, this presumption has ruled the court rooms in the paternity disputes. By a recent decision, of the Supreme Court in Nandlal Wasudeo Badwaik v. Lata Nandlal Badwik & Anr2 the Court has acceded that “where there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the whole community to be correct, the latter must prevail over the former”.

NANDLAL WASUDEV CASE: Brief facts Nandlal and Lata were married in 1990. It appears that very soon the marriage landed in rough waters. Wife filed an application for maintenance under s.125 of Cr. P. C. The trial court by order dated 10th Dec 1993 dismissed the application. Thereafter the wife resorted to a fresh proceeding under s.125 of Cr. P. C., claiming maintenance for her and her daughter. Her contention was, she started living with her husband from 20th June 1996 and stayed together about two years during which time she became pregnant.

1 Janardhanan P.S. is a LLB student of Government Law College, Thrissur.

2 Special Leave Petition (CRL) No. 8852 of 2008, Date of judgment 6th Jan 2014.

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She was sent for delivery to her parent‟s home and eventually she gave birth to a girl child. Petitioner husband resisted the claim and alleged the assertion of wife she stayed with him since 20th June 1996 is false. He denied that respondent No.2 is his daughter. According to him after 1991 he had no physical relation with his wife. The trial Court accepted the plea of the wife and granted maintenance at the rate of ` 900/- per month for the wife and ` 500/- per month to the child. The challenge to the said order in revision petition and petition under s.482 of Cr. P. C. has failed.

Against these orders, petitioner preferred a Special Leave Petition.

The Supreme Court, in a Special Leave Petition challenging the paternity of the child had allowed the petitioner‟s prayer for conducting DNA test. The test was conducted at Regional Forensic laboratory of Nagpur. In their report, they submitted that Nadlal Badwik is excluded to be the biological father of respondent No.2, Neha alias Netra. Respondents, not satisfied with the result, made a request for re-test. The Court allowed the prayer and a retest was conducted at Central Forensic Laboratories, Hyderabad. This test also indicated that the petitioner is not the biological father of respondent No.2.

At this stage counsel for respondents submitted that the appellant having failed to establish that he had no access to his wife at any time when she could have conceived respondent No.2, the direction of DNA test ought not have been given and hence the test result should be ignored.

The Supreme Court rejected this contention. It observed that the coordinating bench have considered the circumstances of the case and it was right in ordering the DNA test. Further, the respondents had not objected the prayer for DNA test and it was only after the reports of the test were adverse to them, they have challenged it on the ground that such a test ought not have been directed.

Issues The results of DNA test is considered as accurate. At the same time, there is a presumption under s.112 of Evidence Act that “the fact that any person born during the continuance of a valid marriage between his mother and any man or within 280 days after its dissolution the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man unless it can be shown that the parties to the marriage had marriage had no access to each other at any time when he could have been begotten.”

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In the present case, on the basis of DNA test the appellant is not biological father of the girl child. At the same time he was not able to rebut the presumption of legitimacy by proving non-access to his wife when the child could have been begotten.

Decision The Court held that ―when the truth or fact is known, in our opinion, there is no need or room for presumption.… In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former‖. The Court set aside the impugned judgment so far as it directs payment of maintenance to the second respondent.

CRITICAL EVALUATION OF THE CASE Now let us see what the law on paternity is and what the science on paternity is. Then on light of both the analysis let us evaluate the decision of the Court.

Indian Evidence Act 1872 Section 112 of Indian Evidence Act3 read with Section 4 of Evidence Act4 makes it clear that a child is born during the subsistence of a valid marriage is the conclusive proof that the child was fathered by the husband of the woman.

The object of this clause is to protect the interests of the child. The law does not want to brand any child as bastard. In Indian Epics there are many examples of this presumption. Pandavas are actually not biologically fathered by Pandu. But they are presumed to be the children of Pandu, obviously the reason why they are called Pandavas. Even Pandu himself is an example. Though the father of Pandu, and

3 Section 112 of Indian Evidence Act 1872 says that: “Birth during marriage, conclusive proof of legitimacy.- The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

4 Section 4 of the Indian Evidence Act 1872, says that “Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it:" Shall presume."- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved:" Conclusive proof."- When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.”

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Dritharashtra is Vyasa, they are considered as the children of Vichithraveerya, and they succeeded to the crown of Vichithraveerya, even though they were conceived only after the death of Vichithraveerya! Perhaps the reason why it was so is, the presumptions were mostly accepted by the Kings, and they had an aim that the throne should continue to be ruled by their dynasty, and should not go outside. So, being the real father or not was not much of significance.

Now the question is, is it going to be so today? The answer is, yes, as the law presently stands. If the father does not want the child of someone else to be called his, the law is harsh on him. Even if the child was born out of adulterous relation, the husband of the adulteress is compelled to bear the fatherhood of that child, unless he is able to prove non-access during the time when the child was begotten. He may be able to get a divorce on account of her adultery; but still he have to maintain the child.

When the law says, existence of a fact is a conclusive evidence of another, it is next to impossible to prove that in spite of existence of the former, the latter is non-existent. However, s.112 itself provides an outlet to the party who wants to escape the rigor of that conclusiveness. If it could be shown that the parties had no access to each other at the time when the child could have been begotten, the presumption could be defeated.

Now, what is meant by access? The Privy Council in Karapvya Sevarai v. Mayandi5 held that access connotes only existence of opportunity for marital intercourse. This legal principle was accepted by the Supreme Court in Chilkuri Venkateswaralu v. Chilkuri Venkatanarayana6 as correct law. In other words, access does not mean actual sexual intercourse between the spouses, but a mere existence of opportunity for that.

Now let us examine the degree of proof required to rebut the conclusiveness of law. In Smt. Dukhtar Jahan v. Mohammed Farooq7 Supreme Court held that the presumption can only be displaced by a strong preponderance of evidence and not by a mere balance of probabilities.

5 AIR 1934 PC 49.

6 1954 SCR 424.

7 1987(1) SCC 624.

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DNA fingerprinting It is necessary to know a few basics of DNA fingerprinting. All living beings are composed of cells which are the smallest and basic unit of life. An average human body consists of trillions of cells of different sizes. Human cells consist of 46 chromosomes. Deoxyribonucleic Acid (DNA) found in the chromosomes of living beings is the blueprint of an individual. An individual have a unique DNA pattern which is inherited from his biological parents and it is similar to theirs in molecular structure and genetic code. Because if this similarity the DNA can be used to test conclusively determine biological kinship. When two unrelated people possessing the same DNA pattern are compared, the chances of complete similarity are one in 30 billion to 300 billion. Considering that the earth‟s population is about 5 billion, the result of a genuine DNA test is scientifically accurate.

The scientific development in the area of DNA testing technology and its application has solved many crime related mysteries in the area of rape, mass killing and in solving civil disputes related with the paternity of a child, finding of an individual etc. It has also been used in solving cases of exchange of babies in hospital wards.

DNA test and Indian Evidence Act Application of DNA test is now well established in developed countries. In India, in several cases the judgment has been given either based on the results of DNA test or along with other corroborative evidence. Although DNA test has been accepted in many courts in India, it has not yet been included in the Indian Evidence Act. It is therefore left to discretion of the judges whether DNA test under Section.45 of Indian Evidence Act 18728 to be accepted or not.

Decided Cases The first paternity dispute in India which was solved by DNA fingerprinting was the case No. M.C. 17 of 1988 in the court of The Chief Judicial Magistrate of Tellichery9

8 Section 45 of Indian Evidence Act 1872 says that: “When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Such persons are called experts.”

9 The CJM held that: “the evidence of expert is admissible under s.45 of The Indian Evidence Act. So also, the grounds on which the opinion is arrived at are also relevant under s.51 of The Indian Evidence Act. PW4 is an expert in the matter of molecular biology and the evidence tendered by him is quite convincing and I have no reason why it should not be accepted..”

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The Supreme Court in Goutam Kundu v. State of Wes Bengal10 held that: a. That courts in India cannot order blood test as a matter of course; b. Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained; c. There must be a strong prima facie case in that the husband must establish non- access in order to dispel the presumption arising under Section 112 of the Evidence Act; d. The court must carefully examine as to what would be the consequence of ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman; e. No one can be compelled to give sample of blood for analysis.

In Shard v. Dharmpal11, the core question was whether a party to a divorce proceeding can be compelled to medical examination. The DNA test was opposed by the respondent on the ground that such an order violates his right to privacy. The three Judge bench of the Supreme Court held that: “If for arriving at the satisfaction of the court and to protect the right of a party to the lis who may otherwise be found to be incapable of protecting his own interest, the court passes an appropriate order, the question of such action being violative of Art 21 of the Constitution would not arise. The court having regard to Art 21 of Constitution of India must also see to it that the right of a person to defend himself must be adequately protected.” It also held that if despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be made out. S. 114 of the Indian Evidence Act enables the Court to draw an adverse inference.

In Banarsi Dass v. Teeku Dutta and Anr.12 held that the law laid by the Supreme Court in Goutam Kundu‟s case was is correct and refused to interfere in the High Court judgment setting aside the trial court order which had allowed the application for DNA test.

10 1993(3) SCC 418.

11 AIR 2003 SC 3450.

12 Appeal (Civil) 2918 of 2005 from SLP 17427 of 2004.

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In Bhabani Prasad Jena etc v. Convenor. Sec. Orissa Commn. For Women13 Supreme Court held that there is no conflict in decisions of the Court in Goutam Kundu and Sharda Dhrmpal cases. In principle, both the decisions reiterate that the Courts has power to order a person to undergo medical test there is a strong prima facie case.

Nandlal case v/s other cases A distinction between the other cases and Nandlal case is that, Nandlal case did not examine the propriety of courts ordering DNA test. The issue before the Court was, when there is a scientific proof reached by DNA test, (not once, but twice) whether to accept it or go by s.112 of the Indian Evidence Act. The Court in an obitur dictum in the Kanti Devi & Anr v. Poshi Ram14: “The results of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of s.112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable.” In Kanti Devi case, the Court held that on the strength of evidence, the Court was satisfied that the plaintiff husband had no opportunity whatsoever to have laison with the defendant mother. In other words, there was no prima facie case to order a DNA test, where the evidences adduced were enough to reach a conclusion.

One may dissent that Nandlal decision is not lawfully correct. Under the circumstances of the case, the decision of the Court could not be otherwise. It would have been a different story had the respondents objected to the DNA test in the first instance. But when both the DNA tests exclude the petitioner husband as the father of respondent No.2, the Court cannot ignore it and resort to the presumption of s.112 of Evidence Act.

But the decision of the Court cannot be considered as laying a new law. S.112 continues to remain an irrebuttable presumption.

CONCLUSION In India, a special protection is given to the status of legitimacy. The law is very strict regarding the type of evidence which can be let in to rebut the presumption of

13 CA Petition 6222 – 6223 of 2010 from SLP 22095 – 22096 of 2009.

14 Appeal (civil) 3680 of 2001.

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legitimacy. Even proof that the mother committed adultery with a number of persons will not by itself be sufficient for proving illegitimacy of the child, if she had access to her husband when the child could have been begotten.

In England and European countries, DNA test has been approved where legitimacy arises for consideration. In India we cannot adapt this procedure because stigma of illegitimacy is very high and unlike those countries, we do not have any of the protective legislations to protect illegitimate children. Of course, in some cases, this may require a husband to maintain children of who he is not the father. But consider the situation where DNA test is allowed in every case of paternity dispute. A doubting husband can drag a wife and child to the court and subject them to ignominy. Ultimately even if the test proves he is the real father, the damage done to the reputation of the mother and child is irreparable and the trauma they suffer cannot be compensated by any amount of damages.

The law commission in its 185th report has recommended an overhaul of the Indian Evidence Act including s.11215. These recommendations have not yet been put to the

15 It suggests Section 112 to be like this: “Birth during marriage conclusive proof of legitimacy except in certain cases - The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after the marriage was declared nullity, the mother remaining unmarried, or (ii) after the marriage was avoided by dissolution, the mother remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless (a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or (b) it is conclusively established, by tests conducted at the expense of that man, namely, (i) medical tests, that, at the relevant time, that man was impotent or sterile, and is not the father of the child; or (ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or (iii) DNA genetic printing tests conducted with the consent of that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and

Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner according to accepted procedures, and in the case of each of these sub- clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child.

Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.

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mandate of the legislature. It cannot be that the legislature is unaware of the advancement of science and technology. It may have felt it wise to leave the law as such to protect the interest of society at large. Before making the proposed amendments, the pros and cons of the same must be widely debated. Our values still continue to favor long standing family relations over genetics. It is agreed that scientific research and advancement should be utilized in every facets of life including law and justice. But there is a great difference between utilizing such technologies in fact finding of crimes, and civil disputes of delicate nature such as parentage.

Explanation I: For the purpose of sub clause (iii) of clause (b), the words „DNA genetic printing tests‟ shall mean the tests conducted by way of samples 35 relatable to the husband and child and the words “DNA” mean „Deoxyribo-Nucleic Acid‟.

Explanation II: For the purposes of this section, the words „valid marriage‟ shall mean a void marriage till it is declared nullity or a voidable marriage till it is avoided by dissolution, where, by any enactment for the time being in force, it is provided that the children of such marriages which are declared nullity or avoided by dissolution, shall nevertheless be legitimate.” 115

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DOCTRINE OF STARE DECISIS V. PER INCURIAM WITH SPECIAL REFERENCE TO BASHEER M. PICHA V. INDIAN BANK [2013(2) KLT 951]

A K Mariamma1

The High Court of Kerala, Justice Antony Dominic on 10th April 2013 decided the above case. In this case, the petitioner availed of a performance mobilization guarantee of Rs.100 lakhs from the respondent bank. Though defaulted, the petitioner paid Rs.1.5 crore but the bank claimed that more than 2.7 crores is due to it. In 1995, Bank filed a suit, the Sub-Court declared the defendants exparte and decreed to realise 58,07,134,05/- with interest @23.25% with quarterly rest till realisation. In 1999, the bank filed petition before the Debt Recovery Tribunal and it was allowed to realise Rs.1,32,69,251/- together with interest @23.25% with quarterly rest till realization.

In 2007, the petitioner approached the Debt Recovery Tribunal, Ernakulam praying to set aside the exparte decree passed by the Sub Court and to condone the delay of 10years and 10 months as the summons issued by the Sub Court were not served on the defendants‟ as they were in Bahrain since 1996 and on account of the orders passed in Bahrain Courts, the first Petitioner was restrained from travelling outside that country. Besides, from the beginning, the petitioner was trying to persuade the bank to settle the liability and relying on the exparte judgment and decree illegally obtained, the bank was making unreasonable demands and according to the petitioners, the delay of 10 years and 10 months was not wilful so delay may be condoned, lest serious injustice and prejudice would be caused to them.

In order to decide the condonation of delay, the Court referred the following judgments, viz.

1. Collector, Land Acquisition Anathanag & Another v. Mst.Katiji & Ors2, wherein Supreme Court laid down that “ordinarily a litigant does not stand to

1 Dr. Mariamma A. K.., is an Associate Professor of Government Law College Calicut.

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benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of malafides. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and expected to do so”.

2. In another case, N. Balakrishnan v. M. Krishnamurthy3 wherein Supreme Court held that “it is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within certain limit. Length of delay is no matter; acceptability of the explanation is the only criterion”. Rules of limitations are not meant to destroy the right of parties but to seek their remedy promptly. So a life span must be fixed for each remedy as unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on a public policy”.

3. In Post Master General & Others v. Living Media India Ltd. & Another4, where Supreme Court on 24th February 2012 held that “Law of Limitation undoubtedly hands everybody, including the Government. Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few”. The Department miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay of 427 days and dismissed the appeals on the ground of delay.

4. In Maniben Devraj Shah v. Muncipal Corporation of Brihan Mumbai5 Supreme Court in this case observed that “if the Court finds that there has been

2 (1987)2 SCC 107.

3 (1998) 7 SCC 123.

4 (2012) 3 SCC 563.

5 (2012) 5 SCC 157. 117

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no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is bound to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and it agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and or/ its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest? According to the Corporation, the papers required for filing the first appeals were misplaced and not traceable inspite of good efforts. But in our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act”.

5. In this case Basheer M. Picha v. Indian Bank, the counsel for the Bank contended that judgment in the case of Maniben Devraj (supra) was rendered without referring to the judgment in Post Master General‟s case (supra). Since the said case is being per incuriam, court should follow the judgment in Post Master General‟s case (supra). Though the Supreme Court agreed that the „Counsel is right in contending the Maniben Devraj‘s case was decided by a Bench of equal strength and that it did not make reference to the Post Master General‟s case judgment, it observed that „ having gone through both the judgments, there is nothing contradictory in these judgments‟. On the other hand, the judgments in Post Master General‘s case (supra) shows that liberal construction should be adopted to advance substantial justice, but Supreme Court declined to condone the delay due to absence of proper explanation. High Court of Kerala went on “even if there is substance in the contention that these two judgments lay down principles which are inconsistent then also the question would be which of the judgments is to be followed by the Court, for which it relied on Raman Gopi v. Kunju Rman Uthaman6, where in it was held that “ in case of conflicting views taken in the decision of two benches of equal

6 2011 (4) KLT 458 (FB).

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strength of the Apex Court, the decision later in point of time, will prevail over the earlier one”7.

Here comes the question, whether the above findings in Raman Gopi v. Kunju Rman Uthaman (supra), which was relied on by the Kerala High Court in this case (Basheer M. Picha v. Indian Bank) was correct? To answer this question, it is necessary to analyse binding precedent and per incuriam with few judgments:

Salmond on Jurisprudence8 says, „from the earliest times the Judges of the king‟s courts have been a small and compact body of legal experts. They have worked together in harmony, imposing their own views of law and justice upon the whole realm, and establishing thereby a single homogeneous system of common law, with little interference either from local custom or from legislation. The centralisation and concentration of the administration of justice in the royal courts gave to the royal judges a power and prestige which would have been unattainable in any other system. The authority of precedents was great in England because of the power, the skill, and the professional reputation of the judges who made them. In England the bench has always given law to the bar‟. Judicial decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which judges must follow whether they approve of it or not. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. Authoritative precedents are legal source of law, while persuasive precedents are merely historical.9

Owing to the vast number of precedents, and the heterogeneous ways in which they are reported or are not reported, it is only too easy for counsel to miss a relevant authority. Whenever a relevant prior decision is not cited before the court, or mentioned in the judgment, it must be assumed that the Court acts in ignorance or forgetfulness of it. If the new decision is in conflict with the old, it is given per incuriam and is not binding on a later court.10 The lower court may refuse to follow the later decision on the ground

7 See Para 60(1) of 2011 (4) KLJ 126 (FB).

8 See Salmond on Jurisprudence, 12 Edn., 2006, at p.142.

9 Ibid at p. 145.

10 Ibid at p.152.

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that it was arrived at per incuriam, or it may follow such decision on the ground that it is the latest authority. Which of these two courses the court adopts depends or should depend, upon its own view of what the law ought to be11.

The single bench Justice S. S. Satheshchandran in Raman Gopi‘s case12 High Court of Kerala, expressed a doubt- when conflicting views are expressed by co-equal benches in respect to the same matter which one has to be followed and what are the principles if any applicable to such a case. After referring several cases on the same point, expressed doubt about the principles to be followed when two conflicting decisions of the Apex Court, both rendered by co-equal benches are found applicable, and since there appears to be no binding decisions by this High Court on that question, it is proper and appropriate that the question be considered by a Division Bench of this High Court13.

It is a relevant question- when conflicting views are expressed by two co-equal benches, which is to be considered as binding precedent or whether the High Court is bound to follow the later decision binding? Regarding this question also there are conflicting views, viz. 1. In Deputy Commissioner v. Andaman14 , a division bench of Kerala High Court held that “when both the decisions have been rendered by benches of equal strength, High Court is bound to follow the later decision”.

2. In State of U.P. and Another v. Synthetics and Chemicals and Another15 Supreme Court of India explained the procedure to be followed when conflicting decisions of co-equal benches of the High Court arise for solution, the Apex Court held that a decision which is not express and is not found on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated under Article 141 of the Constitution of India. Uniformity and consistency is core of judicial

11 Ibid at p.153.

12 2009 (4) KLT 414.

13 Ibid at para 10.

14 1987 (1) KLT 192.

15(1991) 4 SCC 139.

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discipline16. It has also been held that any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of general nature binding as a precedent17. “Law declared is not that can be culled out, but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation18”.

3. In Union of India v. Dhanavanti Devi19 Supreme Court held that it is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution and in order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts in the case in which the decision was given and what was the point which has to be decided. It has also observed that „no judgment can be read as if it is a statute‟.

4. In Director of Settlements, A.P. v. M.R. Apparao20 Supreme Court held that “Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The aforesaid Article empowers the Supreme Court to declare the law. It is, therefore, an essential function of the Court to interpret legislation. The statements of the Courts on matters other than law like facts may have no binding force as the facts of two cases may not be similar. But what is binding is the ratio of the decision and not any finding of facts. It is the principle found out upon a reading of a judgment as a whole, in the light of the questions before the Court that the ratio and not any particular word or sentence. A judgment of Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. The law which will be binding under Article 141 would, therefore, extend to all observations of points raised and decided by the Court in a given case. It is now well settled that a decision of the Court based on specific facts does not operate as a

16 Muncipal Corporation of Delhi v. Gurnam Kaur, AIR 1989 SC 38.

17 Sharma Rao v. State of Pondicherry, AIR 1967 SC 1680.

18 (1991) 4 SCC 139 at para. 6.

19 (1996) 6 SCC 44.

20 (2002) 4 SCC 638.

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precedent for future cases. Only the principles of law that emanate from a judgment of this court, which have aided in reaching a conclusion of the problem, are binding precedents within the meaning of Art.141. However, if the question of law before the Court is same as in the previous case, the judgment of the Court in the former is binding in the latter, for the reason that the question of law before the Court is already settled. In other words, if the Court determines a certain issue for a certain set of facts, then that issue stands determined for any other matter on the same set of facts”.

The above said point was made it clear by the Supreme Court in Haryana Financial Corp. v. Jagdamba Oil Mills21 where in the Apex Court had observed, “Courts should not place reliance on the decision without discussing as to how the situation fits in with the fact situation of the decision of which reliance is placed”. Judgments of Courts are not construed as Statutes. Judges interpret statutes, they do not interpret words of statutes, and their words are not to be interpreted as statutes”. In Ganapati Sitaram Balvalkar & Another v. Woman Shripad Mage22 also, Supreme Court laid down the principle that decision of four Judges Bench is binding on a Bench of three Judges.

Per Incuriam: In State of U.P. and Another v. Synthetics and Chemical Limited and Another23 Supreme Court explained the term „ Incuria‘ literally means „carelessness‟. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The „quotable in law‟ is avoided and ignored if it is rendered, „in ignoratium of a statute or other binding authority‟.

In Dr.Vijay Laxmi Sadho v. Jagdish24 it has been observed by the Supreme Court that “As the learned Single Judge was not in agreement with the view expressed in Devilal‟s case it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different view. We note it with regret and distress that

21 (2002) 3 SCC 496.

22 AIR 1981 SC 1956.

23 1993 (41) SCC 326.

24 (2001) 11 SCR 95.

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the said course was not followed. It is well-settled that if a Bench of coordinate jurisdiction whether on the basis of „different arguments‟ or otherwise, on a question of law, it is appropriate that the matter be referred to a larger Bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. It is not proper to sacrifice certainty of law. Judicial decorum, no less than legal propriety forms the basis of judicial procedure and it must be respected at all costs”. The same view was reiterated in Pradip Chandra Parija and Others v. Pramod Chandra Patnaik and Others25, wherein Supreme Court held that “Judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If then, the Bench of three learned judges also comes to the conclusion that earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned judges is justified”.

In Subash Chandra and Another v. Delhi Subordinate Services Selection Board and Others26, Justice S.B. Sinha stated that “it is now well settled principle of law that a division bench, in case of conflict between a decision of Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the latter”.

In Union of India and others v. S.K. Kapoor27 Supreme Court held that “it is well settled that if a subsequent co-ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since the decision in S.N. Narula‘s case28 was not noticed in T.V. Patel‟s case29, the latter decision is a judgment per incuriam. The decision in S. N. Nirula‘s case was binding on the subsequent bench

25 (2002) 1 SSC 1.

26 (2009) 5 SCC 458.

27 (2011) 4 SCC 589.

28 S. N. Narula v. Union of India and Ors., Civil Appeal No. 642 of 2004 decided on 30/1/2004.

29 Union of India v. T. V. Patel, (2007) 4 SCC 785, decided on 19/4/2007.

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of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court”.

Supreme Court again in Safiya Bee v. Mohammad Vajahath Hussain alias Fasi30 it was held that “judicial discipline and practice required them to refer the issue to a larger Bench. The learned judges were not right in over-ruling the statement of the law by a co-ordinate Bench of equal strength. It is an accepted rule or principle that the statement of the law is considered binding on a Bench of the same or lesser number of Judges. In case of doubt or disagreement about the decision of the earlier Bench, the well accepted and desirable practice is that the later Bench would refer the case to a larger Bench”.

Three Judge Bench of Supreme Court in Official Liquidator v. Dayanand and Others31 reiterated the necessity to maintain judicial discipline and stated, “We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hall mark of judicial jurisprudence developed in this country in last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system in as much as the courts at the grass root will not be able to decide as to which of the judgment lay down the correct law and which one should be followed” … “We may add that in our constitutional set up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the Constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of

30 AIR 2011 SC 421.

31 (2008) 10 SCC 1.

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judicial system. If the Courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law”.

From the above mentioned cases it was very clear that the Supreme Court has consistently taken the view that “if the co-equal bench is not in agreement with the decision of the earlier bench, it can only refer the matter to the Bench with more judges. A Bench of lesser quorum cannot question the correctness of the view taken by a larger Bench”. Therefore, the Kerala High Court in this case could have followed the above said principle as laid down by the Supreme Court of India because the judgment later in point of time will be per incuriam unless there is change of law. Only when the later decision was of the changed law that can be followed, otherwise the second one by the co-equal bench will only be per incuriam.

Though the High Court in the present case condoned the delay of 10 years and 10 months on the ground that the respondent did not get the notice issued by the Sub Court, the finding of the Court to follow the judgment rendered later in point of time does not sound good as it is per incuriam. That apart, it sets a bad precedent which scuttles the credibility of judicial institution and encourages chance litigation and opportunism.

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Adventures of Crossing the Boundaries of Legal Studies: The Experiences from Writing an Inter-Disciplinary PhD Thesis

P M Aarathi

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ADVENTURES OF CROSSING THE BOUNDARIES OF LEGAL STUDIES: The Experiences from Writing an Inter-Disciplinary PhD Thesis

P M Arathi1

This paper emerges from the experiences of writing of my PhD thesisi from an interdisciplinary back groundii where the frontiers of multiple disciplines vanishes to capture certain hitherto unattended social processes. How a strong discipline like legal studies invokes methodological challenges while one attempts to cross beyond disciplinary boundaries academically. This paper brings the methodological adventures and challenges of working with interdisciplinary background. However, here, I limit the paper not going to the theoretical debates around inter- disciplinarity, cross- disciplinarity and multi- disciplinarity. My attempt here is to narrate the experience of an exciting academic expedition from merging frontiers of disciplines to understand the question of public health, women‟s rights and the question of body through the institutional interplays of judiciary and biomedicine- who got basic training in legal studies.

The exercise of power is an important theme in social science research, including health research, in a society where power is unequally distributed. This social and political situation of the distribution and exercise of power can be understood through different theoretical and philosophical perspectives and from different disciplinary viewpoints. However this theme hardly becomes research question in traditional and conventional ways of legal studies. An inter-disciplinary approach will facilitate novel ways of enquiry to address diversified power relationships. In my PhD thesis I attempted to conceptualise the composite issue of control over the body, within the frame work of exercise of power; by the institutions of law and biomedicine. This exploration has been done through caselaw analysis in my PhD workiii. In recent years, the body has become

1 Dr. Arathi P. M., is currently working as an associate fellow in Council for Social Development, New Delhi. She has completed her Ph.D from Centre for Social Medicine and Community Health, School of Social Sciences, JNU Delhi.

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a subject matter in theoretical and empirical enquiries in social science research and is assuming the nature of a sub-discipline; where an analysis limited to strict disciplinary boundaries of any of the social science or humanitics is almost impossible.

Body as a Research Question and Merging Frontiers of Disciplines My PhD dissertation identifies three different categories of bodies based on the “character” of the body and the nature and ways in which the institutions of law and medicine dealt with itiv. These categories are not biomedically-created, self- evident categories as mentioned in Hester‟s work (2006).2 Her work describes how biomedically bodies are created by pathologising women‟s bodies based on their reproductive capacities or finding homosexuality as a self-evident category to be addressed by biomedicine. In this process of creation of categories of bodies based on their “character” attempted to distance body as a medical object. But the categories of bodies under this study are at the same time creation of different social process not simply a biomedical category demands pathological interventions. But the category of bodies here are the products of intersection of institutional interplays of law and biomedicine. This complex understanding demands asking research questions beyond the scope of disciplinary boundaries.

My PhD thesis broadly made these queries: How does the body become a subject matter of social sciences? What is the significance of the body when it is viewed through the merging lenses of two disciplines like law and medicine? How is power exercised within the institutional interplays of biomedicine and judiciary in contemporary India? These questions need to be answered theoretically and understood politically. In public health discourses body is considered as a site of biomedical interventions. In this process of understanding; what I gathered is legal institutions add legitimacy to the actions of power exercise by biomedicine and thereby reinforcing the authority of both biomedicine and law. As Cavallaro (2001:19) states

―At all times, the body is disciplined through various channels, such as legal and educational systems and controlled systemically by disciplines such as medicine3‖

2 Hester, Rebecca, J, Body as a Border Field Statement #2. as available on http://ic.ucsc.edu/~rlipsch/QEs/Hester.bodyasborder.QE1.pdf, (uploaded on 2006), [accessed on 11th November 2010].

3 Cavallaro, D, The Body for Beginners, Chennai: Orient Longman Limited, 2001. 130

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The emergence of body as a subject of research in social theories is a concern for a wide range of sociological specialisms, like the sociology of health and illness. The body has become a theoretical and methodological „problem‟ in social sciences. Moitra (2009) in her unpublished work traces the philosophical trajectories of body and epistemic concerns.4 She makes a significant comment on how philosophers and theorists considered body as a subject matter of their studies in the early period, and how body changed from being a recipient of theory to a site or subject matter of theorization. Moitra (2009: 8) claims

―Mainstream theorists felt that since the body has a specific location, and a specific history, it cannot play a constitutive role in theory-building – theory being universal in its import. For the mainstream philosopher body becomes relevant only as a recipient of theory, in the sense that theories are applied to the physical world–the body. Theories introduce a kind of standardization‖.5

Social transformations are reflected in, and contribute to the development of the notion of body, control over body, and the discourse on sexuality and body politics. Fraser and Greco (2005), in their introduction to The Body Reader, situate these transformations with the shift in the demographic structure of western societies during late modernity.6 The authors relate it with the epidemiological shift and the corresponding changes in therapeutic relations. Changes in medical biotechnologies like genetic diagnosis, organ transplantation, and new reproductive technologies raise important practical questions for legality. These questions cannot be divorced from philosophical ones like nature and limits of human body and its relationship with personhood and identity. In the context of modernity (in pre- modern societies as well) as Cavallaro ( 2001) argues cultural norms regularly tried to delimit bodies through rituals and through a variety of laws to create clear cut boundaries around the body.7 Here one could feel the careful freedom of inter disciplinary frame work to capture not only the rising legal questions related to newly emerging social contexts but the dynamics of such contexts and the process through those contexts are produced also.

4 Moitr, S, „Body and the Epistemic Concerns: Tracing the Trajectory‘. Paper presented at Theorising Body: Problems and Perspectives, International Conference Organised by Department of Philosophy, University of Calicut, November 24-26th, [Un published Work] 2009.

5 Ibid.

6 Fraser M. and Greco M, The Body: A Reader, Routledge, New York, 2005.

7 Supra n.3.

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The state employs different institutional mechanisms to exercise power over the body and through the exercise of power, creates different categories of bodies through different social processes. My work views the concept of control over the body from the point of convergence of the two disciplines, namely, law and biomedicine. The institutions of biomedicine and law have a colonial origin and are products of modernity in the context of India. In the post-colonial context, it is interesting to look at the process of the control over the body and it is fundamental in the discussion of the interplay of the institutions of biomedicine and law. Both these institutions also play a crucial role in the day to day lives of people. The very understanding of health and illness is addressed through medical procedures/ intervention of medicine in the dominant discourse by sidelining the questions of social determinants of health the questions related to epidemiology. This leads to a social context in which the limited understanding of legalised rights of people who seek medical help as well as medical professionals who deliver these services are recognized and codified. As Burney ( 2000)8 suggests the relationship between the institutions of law and biomedicine needs to be evaluated in their specific contexts to analyse the process of „medicalisation‟ of the body and „legalisation‟ of medical procedures to see how they work hand in hand in the contemporary milieu.v Such an analysis suggests stepping out of the traditional boundaries of legal studies. As Zola (1978) observes

―…medicine is becoming a major institution of social control, nudging aside, if not incorporating the more traditional institutions of religion and law. It is becoming the new repository of truth, the place where absolute and often final judgments are made by supposedly morally neutral and objective experts. And these judgments are made not in the name of virtue and legitimacy, but in the name of health. Moreover , this is not occurring through the political power physicians can hold or can influence, but is largely an insidious and often undramatic phenomenon accomplished by ―medicalizing‖ much of daily living, by making medicine and the labels ―healthy‖ and ―ill‖ relevant to an ever- increasing part of human existence.‖

Hester (2006) suggests that biomedicine is one of the key archetypes through which modern bodies have been represented and understood.9 Twigg, (2006) furthers the argument saying that the experience of entering in to a health care system as a patient is

8 Burney, Ian A., Bodies of Evidence: Medicine and the Politics of the English Inquest – 1830-1926 Baltimore and London, The John Hopkins University Press, 2000.

9 Supra n.2.

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one in which the body becomes alienated from the self.10 That is, it becomes an object of observation and intervention by others, including researchers in different disciplines of the social sciences and the natural sciences. Even before entering into a health care system, body can be subject matter of study or object of scientific or social science enquiries. In biomedicine the significance of body is not confined to that of the patient but extends to the bodies of health care practitioners also. The institution of a hospital is key site of bio-medical care. Neither the biomedical procedures nor the judicial processes do attempt to consider or understand the experience of patient about her body. Here one can draw similarities in the processes in judicial paradigms as well.

An enquiry of the deployment of power on the body cannot be separated from the politics of gender. However all female bodies have been not exposed to power in the same way. In the western context the biomedical and judicial intervention as a way of expression of power has been experienced differently by women of the lower classes, women of colour, women of alternative sexualities, women in sex work and bourgeois white women. My work also recognises the heterogeneity of the category of women and women‟s bodies. Gendered Bodies are produced while two powerful institutions such as law and medicine act together. The process of construction of gendered bodies tracks how the process of „medicalisation‟ of bodies and the „legalisation‟ of medical procedures work hand in hand. The medico-juridical categorization of bodies according to social identities and the social process in context of the creation of gendered bodies is analysed. The multifaceted interrelations of the institutions of law and medicine are examined to understand the body politics of the construction of gendered bodies. These categories are not rigid and inflexible. Hence the study takes advantage of the dynamics provided by the inter-disciplinary frameworks.

Women‟s bodies have been considered as central to the political health of state. As Hester notes, they are seen as the means of reproducing and hence guaranteeing the social and economic future of the society. The contribution of medicalisation can be seen as representing women as care takers of their own health, health of families and that of the societies as well. However these kinds of duties and responsibilities assigned to women as part of their gender roles never correlate with any binding rights provided by the either welfarist or protectionist state. As Hester notes all exercises of power are

10 Twigg, J, The Body in Health and Social Care, New York: Palgrave Macmillan, 2006.

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directly connected to women‟s bodies. Her study also explores the ways in which female subjects resist these deployments of power.

The [female] body has thus far remained colonized through the discursive practices of natural sciences, particularly the discourses of biology and medicine. It has generally remained mired in presumptions regarding its naturalness, its fundamentally biological and precultural status, its immunity to cultural, social, and historical factors, its brute status as given unchangeable, inert and passive, manipulated under scientifically regulated conditions (Grosz (1994) as sited in Hester 2006 p.22).

Our forensic textbooks also bring the same discursive practices in the legal parlance with the help of biomedical knowledge system. The modern paradigm, biomedicine as well as the judicial interventions, and the combination of both, juridico-medical interventions, in the case laws in my study have created the relationship between castes, religion, and gender. My work acknowledges the important and inherent class and caste character in juridico-medical interventions. Similarly, in Hester‟s Field Statement#2 identifies the creation of certain health norms based on a “universal” subject of white, male, hetero sexual as opposite to racialised and gendered bodies in the context of the United States. To map out the features in the contemporary context in India, interdisciplinary way of approach helped to capture the complex web of social realities.

The Foucauldian understanding of body is that it is an entity saturated with historically specific meanings. The analysis of biopower of body do not adequately explore social factors, like class, race, caste, or gender inscribing on the body disciplinary power.vi Twigg (2006) examines the impact of social class, race, and sexuality on the body and she suggests that social class impacts directly and profoundly on bodies (in terms of direct impact on mortality and morbidity rates), and inscribes it in symbolic and expressive ways.11 Also, access to health facilities and well-being and health outcomes have a direct relationship social class. Thus the association between class and body is complex and is a combination of the material and the symbolic in which bodies are formed as well as expressed through social class Twigg, (2006).12 In the case of race, the body is the central site for the process of racialisation and bodily difference is inscribed with social meaning. It will be even more complex in the caste system which in itself it is complex and diversified. But marking bodies in a social hierarchy with

11 Supra n.10.

12 Ibid.

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preferences of taste and in terms of acquiring cultural capital, caste shows same tendencies as social class. In terms of health outcomes too we see the same hierarchical expression of social class.

Asking the Women’s Question The repeated, regular, asking of a question marks a method. Across the disciplines feminists ask a set of questions and which constitutes women‘s question. To Bartlett (1991: 371) women‟s question in law is that… which is designated to identify the gender implications of rules and practices which might otherwise appear to be neutral or objective…In law asking women‘s question means examining how the law fails to take into account the experiences and values that seem more typical of women than men, for whatever the reasons, or how the existing legal standards and concepts might disadvantage women.13

Present day feminists have expanded the women‟s question into the queer question to address the issue of how law fails to incorporate the experiences of people of different sexual orientations. The analysis of selected the case laws in my thesis ask the women‟s question in this broader sense and tries to address the issue of the non-incorporation of certain experiences within the judicial system when biomedical system plays a crucial role in defining categories and experiences. Bartlett (1991) suggests three feminist methods while “doing law” by feminist analysis of case laws.14 One is to ask the „women‟s question‟ to expose the substance of law may silently and without justification submerge the perspectives of women and other excluded groups; second method is „feminist practical reasoning‟ that expands the traditional notions of legal relevance to make legal decision making more sensitive to those features of a case that are not already reflected in legal doctrine; and the third method is „conscious raising‟ which is a means of testing the validity of accepted legal principles through the lens of the personal experiences of those who are directly affected by these principles.15 In my study mainly deployed the method of asking the „women‟s question‟ along with „feminist practical reasoning‟ and „conscious raising‟ to some extent. By using the method of asking „women‟s question‟ my work tried to reveal the ways in which the

13 Bartlett Katharine, T. and Kennedy, R., Feminist Legal Theory: Readings in Law and Gender, Boulder: Westview Press, 1991.

14 Ibid.

15 Ibid at p.371.

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institutional arrangements of two powerful institutions of law and biomedicine contribute to the subordination of women in the contemporary context in India. My PhD thesis is an endeavour to expose how the hidden upshots of joint interventions of judicial and medical institutions do not explicitly discriminates but how the social structures embody norms and practices that renders subordination of women in different levels. Using „women‟s question‟ as a method and politics has helped my PhD work to use critique as an integral method to legal analysis to check the precedential value of a case, stating of the facts of application of law to the facts in the selected case laws and the assumption of gender neutrality in judicial process. My understanding acknowledges the category of women include innumerable other categories and hence falls in the category of work which identifies the heterogeneous character of women and the intersectionalities involved.

Feminists‘ substantive analyses of legal decision making have revealed to them that so called neutral means of deciding cases tend to mask, not eliminate, political and social considerations from legal decision making. Feminists have found that neutral rules and procedures tend to drive underground the ideologies of the decision maker, and that these ideologies do not serve women‘s interests well. Disadvantaged by hidden biases, feminists see the value of modes of legal reasoning that expose and open up debate concerning the underlying political and moral considerations (Bartlett 1991: 381).

Menon (1999) argues that legal discourse constitute the „body‟ as an object that can be defined through a series of binary oppositions like male/female, healthy/diseased, heterosexual/homosexual.16 Rape and sexual violence cast women as „bodies‟ for feminist and legal discourses. The individual inheritance of rights instead of group or communitarian inheritance clearly creates gendered bodies in the field of law. Male bodies are treated as perfect, clearly bounded and solid; whereas female bodies are considered as penetratable, subject to cyclical changes and has having droopily drawn boundaries due to their reproductive functions.17

The question of body started being addressed by the feminist movementsvii starting from the beginning of the 1970s. Many of the campaigns centered on body like rights of

16 Menon N., Introduction, In Menon, N. (Ed.), Gender and Politics in India. New Delhi, Oxford University Press,1999.

17 Ibid.

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women to control their bodies-specifically contraception and abortion, or control over childbirth, safe public places, measures against domestic violence and rape Kapur & Cossman (1996).18 Historically the emergence of the idea of female sexuality is discussed in India during the British colonial period as traced by Khanna and Price (1994) as a „natural‟ fall of sexuality represented by adult, preferably married, able bodied, hetero sexual couple.19 Gangoli (2007:77-118) as well as Kumar (1993: 96-142) claims that rigid local norms of female sexuality limit the sexual expression of women within marriage.20

Hindu widow remarriage, child marriage and charitable works of Christian missionaries are the practical sites of evolution of female sexuality in colonial India and Khanna & Price, (1994) cited this as theory of passive female sexuality.21 Through the categorisation and control of sex work on the one hand and through the regulation of male sexuality in the British Army base in India by the implementation of Contagious Disease Act of 1864 on the other, two categories of women were constituted; women as active agents and as victims in sexuality related problems (Ibid). The Contagious Disease Act, 1864 identified sex workers as sexual dangers, responsible for massive increase of sexually transmitted diseases in the army and there were specific provisions for medical tests for „army prostitutes‟ and registration for them. Here, the instrument of law interfered in female sexuality outside the ambit of the family.

Another active site of discussion on female sexuality is myths around motherhood. In post- colonial India, the state started regulating female sexuality through birth control measures. Chandiramani (2007: 227-231) regards sexuality as a source of male power and female oppression.22 Sexuality is not a private issue but it is issue of health, of

18 Kapur, R. and Cossman, B., Subversive Sites: Feminist Engagements with Law in India, New Delhi, Sage, 1996.

19 Khanna, R. and Janet, P., „Female Sexuality, Regulation and Resistance‟, Gender & Development,2(2), 1994 at pp. 29-34.

20 Kumar R, The History of Doing: An Illustrated Account of Movements for Women‘s Rights and Feminism in India 1800-1990 (pp96-142), Kali for Women, New Delhi. 1993; Gangoli G, Indian Feminisms: Law, Patriarchies and Violence in India (pp-79-118), Ashgate Publishing, Ltd. England, 2007.

21 Supra n. 19.

22 Chandiramani, R., „Pleasure Me Safely, Can You?‟, in Menon, N. (Ed.), Sexualities: Issues in Contemporary India Feminism (pp.227-231), New Delhi: Women Unlimited, 2007.

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gender, or power, of economics and of violence. Sexuality presents a set of relations between body and social meaning. The relationship between body and the dimensions of difference is complex and variable. The concise and limited historical analysis of “body politics” in India reveals the scope of understanding of production of gendered bodies through jurido-medical process is multifaceted one and requires a non- conventional, non- traditional and not disciplinarily confined analysis.

Analysis of Case laws as a Method In legal research, analyses of case laws are important not only to understand the judicial trends but also to examine case laws as sources of law. In India after the British colonization understanding of law changed tremendously as Menon (1999: 273) observes „legality replaced authority‟.23 Under the legal system before British rule a judgment had no other object than solving a legal dispute. After that the practice of “precedent” came into force as a source of law. She observes under British system “the judge fixed interpretation once and for all, and further development of the law could take place only through cases”.

Present day legal system also follows „precedent‟ as a source of law. The judicial decisions of the Supreme Court are bound by all other subordinate courts of the country. The decisions of the High Courts are considered as precedent for the subordinate courts of the same state and can be used as precedent by other High Courts. The binding nature of precedents is discussed in the Article 141viiiof the Constitution of India and is widely discussed in many case laws. Litigation related to healthcare is very rare in India. Majorly cases related to medical negligence are dealt by the Indian Penal Code, 1860 and the Consumer Protection Act, 1986. In very limited cases the constitutional courtsix have discussed whether right to life is a fundamental right or not; that is the constitutionality of right to health as a fundamental right. There are very rare instances of the constitutional courts dealing with „bodies‟. The case laws under I selected for my study are the merging points of law and medicine under different situations and hence their analysis is identified as a methodological tool to understand the intersectionalities of law and medicine.

Kapur and Cossman (1996) present three approaches while attempting to contextualize case laws pertaining to gender discrimination in the High Courts and the Supreme Court

23 Supra n.16.

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of India.24 These are protectionist, sameness and corrective. Under the protectionist approach women are constructed as weak and subordinate and thus deserving protection. These differences justify their differential treatment by courts. In the equal treatment or sameness approach women are constructed as same as men and treated exactly the same as men in Courts.25 In the corrective approach women are viewed to require special treatment as a result of past discrimination. In their analysis the authors divide on concept of equality as: formal equality (equality is equated with sameness and any differential treatment between similarly situated individuals constitutes discrimination) and substantive equality (recognize that sometimes equality requires differential treatment to individuals).

In the context of India, the dual statuses of being a patient/health care seeker and being a litigant is always influenced by social class, gender and caste. Hence it is important to bring in the relationships among the social factors of parties into the analysis of the case laws selected for study. Hence the analyses of selected case laws in my work use feminist legal methods along with class analysis from a Marxist perspective and explore the ideas of Foucault in addressing body and body politics. MacKinnon (1982: 515) explains “method” as that which “organises the apprehension of truth; it determines what counts as evidence and defines what is taken as verification”.26 Bartlett (1991: 370) exposes the significance and political relevance of feminists using methods in legal analysis - ―Feminists cannot ignore method, because if they seek to challenge existing structures of power with the same methods that have defined what counts within those structures, they may instead ―recreate the illegitimate power structures [that they are] trying to identify and undermine‖. Method matters also because without an understanding of feminist methods, feminist claim in law will not perceived as legitimate or correct.‖27

24 Supra n.18.

25Ibid.

26 MacKinnon, Catharine A., „Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence‟, 1983 Signs, 8(4), 635-658.

27 Supra n.13.

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Law as a Tool for Social Transformation / Site of Power and Means of Oppression The feminist debate on law has always revolved around the query on whether law is a tool for social change that addresses the inequalities and the discriminations existing in an unequally power and the resource distributed society, or a tool for the exploitative/powerful forces to exploit the less powerful sections? Smith (1989) rearticulates the idea of law acts as a simple tool of liberation or the tool for oppression and to view how it constitutes institutionalised and formalised sites of power struggles. The dominant feminist argument is that the male characteristics of law and the state lead to subversion of women in the society. As MacKinnon (1983:644) proposes “the state is male in the feminist sense. The law sees and treats women the way men see and treat women” in a strict hetero sexual understanding.28

MacKinnon‟s (1983:635-658) argument is that all social relationships are gendered. There is no neutral terrain and law is no exception to this.29 Smith (1989) finds this problematic since MacKinnon sees no division between law, the state and the society.30 Smith elaborates that that law occupies a specific space in the politics of gender. Law may be exceptionally powerful and oppressive to women but it acts as a tool to transform the society, to meet the needs of the women, and yet remains as a site of power. At the same time, Smith (1989) agrees that the law is grounded in patriarchy, class and ethnic division and not a free floating entity.31 She says that law does not hold the key to unlock patriarchy; it provides a forum for articulating alternative visions and accounts. Most feminists while agreeing on the power of law as a social tool for social transformation agree that law cannot subvert the structure of power.

Kapur and Cossman (1996: 22) identify the different streams of understanding on role of law in society to address the rights of women.32 Some legal commentators have suggested that the problem is one of the enforcement and access. Others have suggested that the law alone may be unable to eliminate women‟s inequality. Yet others have

28 Supra n.26.

29 Ibid.

30 Smith, J., The Body Hispanic: Gender and Sexuality in Spanish and Spanish American Literature, Clarendon Press, Oxford, 1989.

31 Ibid.

32 Supra n.18.

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begun to suggest that the problems are more structural, that law is informed by and serve to reinforce patriarchy.

The crucial debate within the group which identifies the significance of law and feminist jurisprudence is on the question of what claims should be demanded from law; equality or special considerations? In the nineteenth century, feminist movements debated the basic question of whether it is better for law and the state to treat women as equal to men with equal rights and responsibilities or give special considerations to them with regard to their female capacities (reproductive capacities) (Smith 1989: 82). As Scales, (1986) suggests lawyers are trained to desire abstract, universal, objective solutions to social ills in the form of legal rules or doctrines.33 The detail analysis of case laws discusses this further.

Like law, language is a medium and a system of classification to identify similarities and differences among situations. Law needs a theory of differentiation. Feminism is a theory of differentiation suited to it MacKinnon (1983).34 Domination, disadvantage and disempowerment are the areas where feminist jurisprudence primarily steps in. Another prominent perspective argues that law should be revisioned as a site of discursive struggle, where competing visions of the world are fought Kapur & Cossman, (1996: 21).35

The demand for legal rights has long been the central theme of women‟s movements in India Agnes (1992) Mazumdar (1999: 339-374), Singh (1994: 375-396) Kumar (1993:96-142).36 The demand for women‟s rights and legal reforms was part of social reforms movement in the nineteenth century and came also from women in the

33 Scales, Ann C., „The Emergence of Feminist Jurisprudence: An Essay‟, 1996Yale L J., 95, at p.1372 .

34 Supra n.28.

35 Supra n.18.

36 Agnes, F., Introduction in Women and Law in India (pp. ix-xiv), Oxford University Press, New Delhi, 2004; Mazumdar, V., ‗PoliticalIdeology Of The Women‟s Movements Engagement With The Law‟, in Dhanda, A. and Parashar, A.(eds.), Engendering Law Essays in Honour of Lotika Sarkar Lucknow at pp.339-374, Eastern Book Company, Lucknow India, 1999; Singh, K, „Obstacles to Women‟s Rights in India‟, in Cook, Rebecca J. (ed.), Human Rights of Women: National and International Perspectives at pp.375-396, University of Pennsylvannia Press, Philadelphia, 1994; Kumar, R, The History of Doing: An Illustrated Account of Movements for Women‘s Rights and Feminism in India 1800-1990 at pp. 96-142, Kali for Women, New Delhi. 1993.

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independence movement Kapur & Cossman, (1996).37 Feminist historians have critically examined the relationship between law in colonial India and women‟s subordination (Sarkar, 1993:1869-1878); Nair, (1996)).38 One of the early documents on women‟s rights in independent India, Toward Equality: Report of the Committee on the Status of Women in India observes the role of law from a liberal feminist perspective as follows.

One of the main characteristics of modern society is a heavy reliance on law to bring about social change… The tasks of social reconstruction, development and nation building all call for major changes in the social order to achieve which legislation is one of the main instruments. It can act directly as a norm setter or indirectly providing instruments which accelerates social change by making it more acceptable. (Ministry of Education and Family Welfare, 1975: 102)

A critique of liberal perspective of the early government documents – Towards Equality and the National Perspective on Plan is done by Kapur and Cossman (1996: 25) in Subversive Sites.39 As such, this literature does not question law‟s commitment to social change, not does it consider the role of law in the subordination of women, beyond the discriminatory character of some laws. It does not interrogate the ideological character of law in constituting and sustaining unequal power relations beyond the liberal understanding of explicitly discriminatory laws. Rather it focuses on both law reform and law enforcement.

The nuances in analysis of feminist engagement with law are dealt with in the works of Agnes (2004, 2007).40 Her works mainly tries to analyse legal provisions and judicial interpretations and raises difficult questions about how law operates in women‟s lives. She asks the question “whether social change and gender justice can be brought about

37 Supra n.18.

38 Sarkar, „Rhetoric Against Age of Consent: Resisting Colonial Reason and Death of a Child-Wife‟, Economic and Political Weekly, 1993, 28(36), 1869-1878; Nair, J, Women and Law In Colonial India: A Social History, Kali for Women in collaboration with the National Law School of India University, 1996.

39 Supra n.18.

40 Agnes, F., Introduction in Women and Law in India, Oxford University Press, New Delhi, 2004 at pp. ix- xiv; Agnes, F., „State Control and Sexual Morality: The Case of Bar Dancers of Mumbai‟, in John Mathew and Kakarala Sitharamam (Eds.), Enculturing Law: New Agendas for Legal Pedagogy, New Delhi: Tulika Books, 2007 at pp.158-175.

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merely passing stricter laws” Agnes (1992: 19).41 Agnes is skeptical about the actions of the women‟s movements that demand more law enforcement to attain gender justice and she challenges as

Almost every single campaign against violence on women in the 1980s resulted in new legislation aimed at protecting women. However, these had little impact. Why have these new enactments been ineffective in tackling the problem of violence on women? So long as the attitudes of the establishment remain anti- poor, anti- minority and anti- women to what extent can laws bring social justice? (Ibid)

Feminist literature started recognizing the linkages between women‟s subordination and control over their sexuality in the 1980s. Women‟s sexuality and exercise of power to control over female sexuality is becomes a framework to analyse laws governing reproduction, sexual violence and pornography. In this framework law is recognised as based on male norms, male experience, and male domination.

The analysis locates women‘s oppression in patriarchy, a systematic expression of male domination and control over women which permeates all social, political and economic institutions. The desire for supremacy, the psychological pleasure of power, and male fear of female sexual and reproductive capacity are identified as the motivating forces of patriarchy…Radical feminists focus on revealing the patriarchal nature of law and its oppressive impact on all women. Central concerns include the ways in which the legal system reinforces male control over women‘s sexuality and lives, together with the exclusion or marginalization of women‘s values and priorities in legal structures and processes (Kapur & Cossman, 1996: 29).

Theoretical enquiries around the subordination of women are based on different aspects of women‟s experience. As Bartlett (1991: 386) observes42

“Feminist post-Marxists find this foundation in women‘s activities in production, both domestic and in the marketplace; others emphasize women‘s position in sexual hierarchy, in women‘s bodies, or in women‘s response to the pain and fear of male violence. Whatever the source, however these feminists claim that the material deprivation of the oppressed gives them a perspective—an access of knowledge—that oppressors cannot possibly have‖.

41 Agnes, F. „Protecting Women against Violence: Review of a Decade of Legislation 1980-89‟, Economic and Political Weekly, 27(17), 19-33, 1992. 42 Supra n.13.

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My PhD work mainly does an inquiry through the analysis of case laws the women‟s position in sexual hierarchy and in women‟s bodies as well as women‟s response to pain and fear and finds standpoint epistemologyx is useful in the analysis. In this thesis the foundation of analysis on the experience of different categories of bodies while going through a jurido-medical process and to understand the creation of gendered bodies.

The Feminist Critique of Rights Any research to understand judicial process with a gender perspective instigates to review feminist critique of rights. Nivedita Menon (1999:256) broadly articulates ―from seventeenth century rights began to be seen as inheriting in individual, rather than in groups or communities. This individual detached from social context and conceived of as constituted by the limits of the body, was clearly male…‖ 43

Smith (1989) suggests that the rhetoric of rights has become exhausted and detrimental, especially when women demand for special rights like reproductive rights that have no equivalent masculine counterpart. While examining why rights remain so attractive to feminists, she also traces the root in the concept of equality. She attacks the liberal ideology of rights in the nineteenth century framed by John Stuart Mill and the liberals by pointing towards the limitations of the notion of equality framed within the capitalist social order. This notion is always of an „equality of individuals under the law‟ which is not competent enough to address the structural inequalities based on class, race and gender. Further, liberal ideology has influenced the conceptualisation of law as a potentially neutral arbiter and protector of the weak. Early feminists used rights as central to many campaigns to create legal subjectivity for women with specific rights in private and public life. Like the Marxist critique, the feminist critique also realises the limitation of rights like the basic feature of right, i.e. to claim a right or entitle a right women are subjected to additional qualifications based on the information related to sexual relationship, marriage, divorce, separation and so on. To be equitable in claiming the allocation of rights in the case of women means to fulfill certain legal requirements in terms of obligations. Feminist works recognise the limits of the claim to right and the regulatory potential inherent in state protection; specifically when state deals with institution of biomedicine.

43 Supra n.16.

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However feminists like MacKinnon (1983) identify the importance of claiming an issue in the parlance of rights as it gives the issue public legitimacy. For her, rights constitute a political language through which certain interests of women get advanced.44 Like the Marxian critique, the feminist critique also targets the rights which oversimplify the complex power relations (Smith, 1989).45 Acquisition of a legal right may create a false impression that it has resolved the power difference. Legal rights are not capable to resolve a problem. Rather, it reorders the problem into defined which requires a legal solution (Ibid). Feminists also recognise the counter-productivity of the rights in terms of its mere self-interest of the individual and disadvantageous to the women‟s movement, as Marxists condemn rights in the context of working class movement.

Understanding the Question of Power The law and the biomedicine create a complex transferable interplay of power. What are the ways in which power is exercised? Is this exercise of power constructive or exploitative? What are the major features of this process of exercising power over human bodies when two powerful institutions intersect?

Foucault‟s analysis of interaction between the body and institutions is much discussed among feminists as well as queer theorists. Mills (2007: 82) reads the unique nature of Foucauldian analysis of power as: [m]any analyses of power have focused on the role of institutions, but Foucault analyses the operation of power largely outside the realm of institutions; for this reason, the body is one of the sites of struggle and discursive conflict up on which he focuses. Rather than a top – down model of power relations which examines the way state or institutions oppress people, he is concerned to develop a bottom- up model, where the body is one of the sites where power is enacted and resisted.46

Foucault‟s “biopower” is central to the debates on exercise of power on human bodies.

According to Foucault, in the classical period there was the emergence, in the field of political practices and economic observation, of the problem of the birthrate, longevity, public health, housing, and migration. Hence, there was an explosion of numerous and diverse technique of archiving the subjugation of bodies and the control

44 Supra n.26.

45 Supra n.30.

46 Mills, S., Michel Foucault, London and New York: Routledge, 2007 145

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of populations, marking the beginning of ―biopower‖… through biopower, life itself has become the issue of political struggle. (1978:10)

Foucault (2003: 246) identifies birth rate and illness as two of the central concerns of biopower. He identifies these two issues directly affects the productive force of the population.

In order to regulate and protect these forces, security mechanisms such as forecasts, statistical elements and overall measures have to be installed around random element inherent in a population of living beings so as to optimize a state of life to maximize and extract forces. 47

The relationship between capital and health is discussed in Foucault‟s work and he developed a term for it “noso- politics”:

―Nosology or the categorization and classification of disease, intersects with politics when the consideration of a disease is a political and economic problem for social collectivities which they must seek to resolve as a matter of overall policy. Insofar as sick bodies are non- productive bodies from which a profit cannot be extracted, disease and illness is a political issue which must be addressed at the level of public policy… a particular system for separating the normal and the abnormal was set up.‖ (Hester: 11)48

The law-medicine nexus creates gendered bodies in the everyday medical and legal practices like; the infectious body, the reproductive body and the violated body. It is socially and academically relevant to explore how law and medicine exercise power and create gendered bodies. Law and medicine have the power to define themselves and the law on occasions defines the medicine. It is interesting to locate the instances of these complex operations of power. There are academic inquires that seek to understand power in the context of intersection of literature and medicine (Mangham & Depledge, 2011). They argue the “sense of power that comes with scientific training, providing medical authority, is implicit in much of the medical writing of the time”. (Ibid: 4)

47 Foucault, M, The Birth of the Clinic, Routledge, London, 2007

48 Supra n.2.

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Smith‟s (1989:7) work tries to understand law in similar ways. She observes, “the term law operates as a claim to power in that it embodies a claim to superior and unified field of knowledge.49

Foucault (2007) attempts a non- economic analysis of power. He identifies the development of the disciplinary society where growths of new knowledge like medicine, epidemiology, criminology etc. produce new fields of exploration and further creates new modes of surveillance and regulation over human beings. Smith (1989) elaborates this analysis.

Foucault‘s concentration on the growth of the disciplinary society reflects his great interest in the mechanism of power than the ‗old‘ questions of who has power. He also rejects the tendency which is apparent in the traditional formulation of power, of treating power as if it were negative, repressive and juridical. He maintains that power is creative and technical. By this it is meant that the mechanisms of power create resistances and local struggles which operate to bring about new forms of knowledge and resistance. Hence power is productive, not simply a negative sanction which stops or restricts oppositional developments50.

Mills (2003: 2007) while discussing the impact of Foucault‟s thinking in post- colonial theory and feminist theory quotes Diamond and Quinby (1988):

―Both [feminism and Foucault] identify the body as the site of power...both point to the local and intimate operations of power rather than focusing exclusively on the supreme power of the state. Both bring to the fore the crucial role of discourse in its capacity to produce and sustain hegemonic power and emphasise the challenges contained within marginalised and/or unrecognised discourses, and both criticise the ways in which Western humanism has privileged the experience of Western masculine elite as it proclaims universals about truth, freedom and human nature.‖ Mills (2007: 29)51

However Foucault does a significant reconceptualisation of power, but one cannot avoid the class analysis of power. For Foucault, „power‟ in the Marxian understanding is

49 Supra n.30.

50 Ibid at p.6

51 Supra n.46.

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diminishing. Conversely Smith (1987) argues if it happens significance of law could have been also diminishes.52 Our present day accounts growing legalisation in everyday life from conception of human life (now it begins before that, in case of surrogacy and regulation over reproductive technologies) to legal definition of death (in case of organ transplantation: brain death/ body death). Foucault himself argues that for making a claim to authenticity, it has to be scientific. Making a claim for the scientific is in itself an exercise of power. Claims to scientificity attach a greater value to a knowledge system. Further, Smith (1987) argues that Foucault does not compare the scientists‟ claim to truth with that of lawyers‟xi, and it is important to recognise the power that law attaches through its claim to truth. Law deploys powers to defend this rigidity. Here the exercise of power is different from the Foucauldian understanding.

The Choice of Framework The existing understanding is that law became part of the method of regulation of human bodies in the context of appropriation of medical categorisation and welfare practices and not as part of judicial practices. In my thesis I explore the role of judicial practices in such instances. Law engages with each minute aspect of the body and regulates the activities of the human body in subtle ways. And to comprehend the subtleties the primary question is which framework one has to use.

It engages with the question how the inherent patriarchal nature of law and biomedicine is reflected in everyday practice and tries to reproduce gender stereotypes and even assume a protective role. How far do the dimensions of class and caste contribute to this practice? Can one say that the bodies produced by the medico-juridical process are classist-casteist-gendered bodies as part of exercise of power?

The arguments in this paper would locate why certain approaches are useful to bring when different categories and classifications merges in complex social situations where multiple disciplines play crucial roles. In India the specializations like health care laws or public health laws still in infant stage and not really develop methodologies to comprehend multiple realities. I agree that critical legal theories and feminist jurisprudence open avenues to solicit nuanced research questions for legal scholars however the possibilities of using an interdisciplinary approach enhances the intersectional inquiries much more creative. For example a work with an understanding that the question of gender is inseparable from that of questions related to caste, class,

52 Supra n.30. 148

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religion, globalisation, capitalism and institutional interplays would be comfortable with adventures of crossing disciplinary boundaries of legal studies. It is the responsibility of the institutions of legal studies to endorse more creative ways of research to formulate better perspectives to hitherto unattended social process through phenomenal research questions. iArathi PM, (2012) Gendered Bodies, Medicine and Law: A Study of Selected Case laws from India, Jawaharlal Nehru University(JNU), New Delhi (Un published) ii Thesis was submitted to Centre of Social Medicine and Community Health, School of Social Sciences, JNU ; which is an interdisciplinary centre consisting of students from different social sciences backgrounds like sociology, social work, political science, history, economics, behavioral science, public health and different streams of biomedicine like allopathic, ayurvedic, nursing etc. The centre offer training to students in political economy of health, public health research and methodologies and epidemiology. iii My PhD work is an attempt to explore the construction of gendered bodies and the role of institutions of law and medicine in it through the analysis of three relatively recent (late 1990s) judicial debates from India. Three case laws are selected for this purpose. The selection of the case laws is based up on the nature of issues involved and the socio economic back grounds of the parties concerned in the cases. The first case law leads to an understanding of the position of the judiciary while dealing with an infectious body (Mr. X v. Hospital Z, AIR 2003 SC644). This case deals with the rights of Acquired Immune Deficiency Syndrome (AIDS) patients and points towards grey areas in law/absence of the law. The second case law concerns issues relating to new reproductive technologies (Baby Manji Yamada v. Union of India and Anr,WPC No.369/2008). This is a surrogacy case that gives us a chance to look at the politics of the combination of institutions of law and medicine, in a neo liberal market economy. This case law further draws our attention to the discussion on the implementation of law to legitimise medical procedures. The third case law is a gang rape case which enables to understand how, in a patriarchal society, the institutions of law and medicine act together to reinforce morality through interpreting forensic evidences. This case law also helps us to understand the class and gender character of Indian judiciary. ivThe concept of Infectious Body deals with the first case law, Mr. X v. Hospital Ziv. This case law locates the diverse linkages between human rights and public health. It sees how the public health goal of ensuring conditions of health for people and the human rights goal of identifying, promoting and protecting the societal determinants of human well- being complement each other. The complexity of the web of issues associated with judicial intervention in dealing with an infectious body as opposed to a healthy body is the major concern of discussions and arguments under this case law. A discussion of the HIV/AIDS Bill, 2006 tabled before the Parliament of India additionally 149

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contributed to the discussion of the legal creation of category of infectious bodies in contemporary India. It further sees how the participation of institutions of medicine limits or adds complexities to these interventions. As Rimke (2003) elucidates in her work on the connection between morality and medicine:

…the morally compelled objectivity of the scientific medical gaze produced the pathologization of morally and ontologically corrupt subjects through an exterior reading of the body as text- as a decipherable, knowable and (re)presentable object- which both expressed and confirmed the existence of pathological interiorities. (Rimke, 2003 cited in Hester 2006, p. 23)

The notion of Reproductive Body studied in the second case law, the Baby Manji Yamada v. Union of India and Anr, is in the context of sexuality. Through the analysis of first judicially debated case in surrogacy in India, the study tries to understand surrogacy in the Indian context and how reproductive bodies are created with the help of the institution of law and medicine. How the definition of infertility changed over a period of time and how the medicalisation of infertility opened markets for technologies further indicates the context in which reproductive bodies are created in the contemporary context in India. The concept of the reproductive body is theoretically based on the concept of biomedicine as a technique of biopower, and operating through biomedicine to pathologise women, reveals how in order to control is exercised over both their productive as well as reproductive capacities. The legal creation of reproductive bodies is located at the examination of the proposed legislation put forward by the Ministry of Health and Family Welfare (MoHFW) and the Indian Council for Medical Research (ICMR) on The Draft Assisted Reproductive Technology (ART) Regulation Bill and Rules (2008) as one of its contexts.

The idea of Violated Body is examined through the third case law, the Suryanellicase(Not mentioning the title of the case due to ethical concerns on confidentiality reasons). The idea of violated bodies is developed through a discussion of the role of morality in patriarchal societies and how the institutions of law and medicine work together to reinforce this morality. The violated bodies are created in the process of medical identification of female body through the two finger test in rape cases and the tracing of resistance marks on perpetrators of sexual violence. The forensic evidence produced before a court of law, the judicial acceptance of such evidence and remarks based on these evidences are instances of the creation of violated bodies in sexual violence cases vBurney (2000), in the study of medicine and the politics of English inquest during 1830 to1926, defines the term as follows: “Medicalisation”, a term most often used to denote the progressive expropriation of health from the public sphere and its relocation

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in an exclusive professional domain, represents an important variation on this theme: through the process of medicalisation, pre-existing social understandings of and responses to such basic humanexperiences as pain, illness, and death are seen to be displaced by arrangements that both produce and legitimate a narrower set of expert interventions” (p. 10). vi “According to Foucault, in the classical period there was the emergence in the field of political practices and economic observation, of the problem of birthrate, longevity, public health, housing and migration. Hence, there was an explosion of numerous and diverse techniques for archiving the subjugation of bodies and the control of population, marking the beginning of “biopower”. (Hester 2006, p. 10). vii There is no single women‟s movement but several and they raise questions of gender, based on political understanding, ideology, social base and modes of action. (Arathi, 2007, p. 5) viii Article 141 of the Constitution of India states that the law declared by the Supreme Court shall be binding on all courts within the territory of India (Shukla, 2001, p. 454). ixIn Supreme Court of India and in High Courts, where matters related to the constitutional provisions are discussed. Other than that medical negligent cases are dealt by subordinate criminal courts and consumer redressal forums where medical service is covered under s.2 (O) of Consumer Protection Act, 1986 under services. "Service" means service of any description which is made available to potential (users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 2[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. http://chdfood.gov.in/Word%20Documents/18C.P.Act.pdf, accessed on 21.15.2010 x “Feminist standpoint epistemology identifies women‟s status as that of victim, and then privileges that status by claiming that it gives access to understanding about oppression that others cannot have”. (Bartlett, 1991, p. 385) xi Smith (1987) does not claim that law attempt to claim itself a science” but law has its own method, its own testing ground, its own specialized language and system of result” (medicine also has methods, testing grounds, specialized language and system of result) the way that science does.

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