VOLUME II: ISSUE 4 DECEMBER 2020
Email: [email protected]
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
DISCLAIMER
No part of this publication may be reproduced or copied in any form, by any means and without the prior written permission of the Editor-in-chief of Corpus Juris – The Law Journal. The Editorial Team of Corpus Juris holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not reflect the views of the Editorial Team of Corpus Juris or the Publisher, Adv. Sunil Chauhan. Though all efforts are made to ensure the accuracy and correctness of the information published, Corpus Juris shall not be responsible for any errors caused due to oversight or otherwise.
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ABOUT US
Corpus Juris is an open access, peer reviewed journal which aims at generating a dialogue. The journal does not restrict its authors by any specific theme, thereby allowing professionals, academic researchers and law students to express their views unabashedly on matters of their interest.
The ideology of Corpus Juris emanates from the acumen and philanthropic vision of its founders who maintain that no original thought process should be invalidated in order to ensure a staunch inclusive learning process.
Our humble attempt to reinstate the lost atmosphere of legal research is focused on improving research writing experiences for all stakeholders in the legal community.
After our previous edition which garnered an outreach of national as well as international students and practicing professionals, Corpus Juris has seen an enormous growth, because of you, its readers and our contributors.
With this thought, we hereby present to you Corpus Juris: The Law Journal
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
EDITORIAL BOARD
Editor-in-Chief
Adv. Vatsala Chauhan Managing Partner, Corpus Juris Legal.
Additional Editor-in-Chief
Adv. Vidushi Sinha Partner, Corpus Juris Legal & Founder, Saamarthya. Daksha Fellow
Editor
Mrs. Swati Bajaj Assistant Professor, Amity Law School, Delhi (GGSIPU)
Associate Editor
Adv. Vatsala Bhatt Advocate, Tuli & Co.
Associate Editor
Adv. Adamaya Pal Singh Advocate
Editor (Honorary)
Mr. Amit Srivastava COO, Viraj Constructions.
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
PANEL OF REVIEWERS
Mr. Aagam Jain Student, B.A. LL.B. (Hons.), National Law School of India University, Bangalore.
Mr. Arpit Vihan LL.M., Jindal Global Law School, B.A. LL.B. (Hons.) Dr. RML National Law University, Lucknow.
Mr. Altamish Siddiki Advocate, Delhi High Court Student, B.A. LL.B. (Hons.), Faculty of Law, Aligarh Muslim University.
Mr. Indrashish Majumder Student, B.A LL.B. (Hons.), National Law University Odisha, Cuttack.
Mr. Ishan Mazumder Student, B.A. LL.B. (Hons.), West Bengal National University of Juridical Sciences, Kolkata
Ms. Kritika Shrivastava Student, BBA LL.B. (Hons.), Symbiosis Law School, Pune.
Ms. Madhulika Iyer Student, BBA LL.B. (Hons.), Symbiosis Law School, Pune.
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Mr. Murtaza Mohiqi PhD (Private Law) Ferdowsi University of Mashhad, Scientific Board Member of Gharjistan University, Afghanistan
Mr. Pushpit Singh Student, BBA LL.B. (Hons.) Symbiosis Law School, Hyderabad
Mr. Raunak Chaturvedi Student, BBA LL.B (Hons.) Amity Law School, Amity University, Kolkata
Mr. Valan Student, B.A. LL.B. (Hons.) Tamil Nadu National Law University, Trichy
Ms. Vaishali Singh Ph.D. Research Scholar, Himachal Pradesh National Law University, Shimla LL.M., Himachal Pradesh National Law University, Shimla B.L.S. LL.B.(Hons.), Government Law College, Mumbai.
Ms. Vasundhara Kaushik Student, B.A LL.B. (Hons.) Faculty of Law, University of Allahabad, Uttar Pradesh.
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
OUR TEAM
This publication would not have been possible without the constant support and relentless efforts of our entire team.
At the outset, we are very grateful to all the authors who have contributed their pieces and are now a part of our community. We’ve learnt immensely from all of them and have been marvelled by the unique ideas that they brought to the table. The cohort of interns from September to December have been an incredible source of inspiration and encouragement. They have motivated us to continually endeavour to make this journal a success. Lastly, we really appreciate the work done by the Panel of Reviewers & Content Managers. They have tirelessly been involved in quality control processes for the journal and we are eternally grateful for their commitment towards Corpus Juris!
The Editorial Board would especially like to thank Hamda & Priyanshi for coordinating all intern efforts throughout the issue and the entire set of interns including Shalini, Pratik, Rayman, Yashasvi, Aratrika, Prakhar, Somesh, Sneha, Megha, Ashwin, Minnah and Abhijeet, who greatly assisted in streamlining this publication!
Thank you all for being a part of the ever-growing CJ community!
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONTENT
S. No. Title Author(s) Page No.
An Exploration of the Right to 1. Development and its Implementation Vyoma Dalal 1 in the Modern Era
Analyzing the Exclusionary terms in 2. Shivani Malik 20 Copyright Licensing Agreements
3. Artificial Intelligence Sehaj Sarin 47
Assessing the curtailment of Article 19(1)(g) amidst pandemic for the 4. Gayatri Batra 55 greater good and its related consequences. Building a Democracy: Tracing the Historical Development of 5. Ayushi Kushwaha 64 Democracy in India with Special Reference to Multi-Party System Case Comment: Committee of Creditors of Essar Steel India Limited 6. Shambhavi Singh 79 v. Satish Kumar Gupta & Ors.
Comparative Study of Laws about 7. Banking and Insurance in India, Rishabh Sinha 87 Germany, and Canada.
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Complications in Patenting Devanshi Lohia 8. Biotechnological Inventions in India - & 100 An Analysis Aastha Kejriwal
Ayushi Tandon Contemporary Position of Same-Sex 9. & 121 Marriage in India Manvi Garg
Shobicka J B Cyberbullying and the Rise of the Right 10. & 132 to be Forgotten. Shreyas N R
Global Arms Trade and its Effect on Conflict Zones with 11. Emphasis on the Applicability of the Manaved Nambiar 142 Arms Trade Treaty Towards Non-State Actors
Highlighting the Shades of Diplomacy Bhavesh Gupta 12. with pointing towards the need of & 161 Trans-Civilizational World Nikita Khanna
Media Trial and the Administration of 13. Vikash Kumar 183 Justice
Dev Bhankaria Mediation as an Alternative to Property 14. & 202 Disputes PraptiBhadra
Right to Equal Employment in India: A 15. Critical Study of the International Sadia Zeb 209 Conventions and National Legislations.
Mohammad Haroon Socio-Legal Analysis of the Problem of & 16. Rape in India with Special Reference to 229 Dr. Faizanur Islamic Perspective. Rahman
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
17. Status of Pothole Deaths in India Himanshi Yadav 242
Jyoti Thakur Surrogacy: Insight into the Legal 18. & 261 Framework of India. Tanishq Soni
Tackling the Illicit Trade of Small Arms 19. and Light Weapons by Non-State Suraj T. N. 276 Actors: An International Perspective
20. Tax Avoidance and Ethical Dimensions Parita Mashruwala 297
Shilpi S. Gautam The Impact of Human Resource & 21. Management on Performance and 307 Sarvjeet Singh Efficiency in Corporate Law Firms Lalana Tradition and Modernity – An Examination of Bigamy: International 22. Niharika Verma 323 Perspective alongwith a Comparison between US & India Aishwarya Khanna Vaccine Nationalism: A Threat to 23. & 343 Global Health C. Balaji
Abhishek Mahajan 24. Vodafone Tax Arbitration: What next? & 354 Shashank Maheshwari
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
AN EXPLORATION OF THE RIGHT TO DEVELOPMENT AND ITS IMPLEMENTATION IN THE MODERN ERA
-VYOMA DALAL*
ABSTRACT
This paper examines the right to development. It commences by delving into the emergence of the right followed by a conceptualisation of the right and what it entails as explored in the declaration on the right and various other documents of international recognition. It goes on to provide insight into the barriers faced in the implementation of the right and concludes by recommending various methods of implementation. The paper aims at providing a comprehensive view of the right in an attempt to popularize the concept in future legislation.
KEYWORDS: Right to Development, Human Rights, Social Progress, Right to Self-Determination and Participation.
* Student, 5th Year, BLS LLB, Government Law College, Mumbai. CORPUS JURIS|1
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION securing human rights and popular participation for all while also ensuring Human beings possess an inherent dignity1 economic growth. However, the definition of by virtue of which they are bestowed with the right to development did not hold such a certain rights, called human rights. Human wide implication before the mid-1960s.4 Such rights, inter alia, include the right to equality, an understanding of the concept is rather right to life, liberty, security, etc.2 Thus, the restricting in its scope as it focuses only on an realization of human rights is an integral economic approach to the concept and constituent of social progress. completely disregards the social well-being of people that contribute to the nation’s The right to development is the right of economic growth. However, this view has human beings and nations to participate in also been criticized as being one of the and contribute to economic, social, cultural greatest dangers in development policy.5 and political development so that it may ultimately lead to the realization of The right to development, as seen today, fundamental freedoms and human rights.3 finds its roots in the conversation around The right to development endeavours to human rights. Human rights are rights that pursue the cause of a multifaceted view of humans possess simply because they exist as social progress and development based on human beings and are not granted by any respect for human rights. State. They are rights that are inherent to all human beings.6 They are recognized in the EMERGENCE OF THE RIGHT TO interest of freedom, justice and peace in the DEVELOPMENT world and our inherent desire to be treated with dignity.7 On analysing the principles and The current expanse of the concept of the objectives of various resolutions of the UN, right to development extends from social jurist opinions, Charters, etc (which shall be enrichment and cultural preservation to explored further in the paper under the topic
1 G. A. Res. 217 A (III), U.N. Doc. A/RES/217(III), International Economic Order and the fundamental human (Dec. 10, 1948). needs: Report of the Secretary-General, U. N. Doc. 2 Id. E/CN.4/1334, (Jan 2, 1979). 3 G. A. Res 41/128, U. N. Doc A/RES/41/128, (Dec. 5 Id. 4, 1986). 6 What are Human Rights?, United Nations Human 4 U.N. Secretary-General, The international dimensions of Rights (Dec. 12, 2020, 4:43 PM), the right to development as a human right in relation with other https://www.ohchr.org/en/issues/pages/whatarehu human rights based on international co-operation, including the manrights.aspx right to peace, taking into account the requirements of the New 7 Supra Note 1. CORPUS JURIS|2
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in of ‘Right to Development – What it Means right to life, liberty and security, etc) as a and Entails’), we find that human rights have common standard of achievement for all a potent place in the realization of social people and nations11 is also considered as one progress and development. Social progress of the interests of the Declaration on the and development need to be founded on the Right to Development.12 value for human beings.8 Thus, we can say that the preservation of and adherence to The Declaration on Permanent Sovereignty human rights act as an imperative parameter over Natural Resources is motivated by the in the evaluation of development. interest in ensuring a state’s right to self- determination, national development and It is through various International well-being of the people of the State conventions, resolutions, charters, papers, concerned to further the independent etc that the right to development has come to national development of developing its current understanding. countries13. Thus, recognizing that control over one’s natural resources by a state can The Declaration on the Right to help contribute to the national development Development has been motivated by the of a nation and in turn to its social well-being. interests of The Charter of the United The Declaration on the Right to Nations9 which lays emphases on the right to Development14 has also been formed keeping self-determination (a facet of the right to in mind The International Covenants on development) as a way to maintain a stable, Human Rights which include the peaceful and friendly environment among International Covenant on Civil and Political nations.10 Rights15 and the International Covenant on Economic, Social and Cultural Rights16, The promotion of human rights laid out in whose common article 1 affirms the right of the Universal Declaration on Human Rights self-determination and the right to pursue which proclaims the rights laid out there in economic, social and cultural development. (the right not to be discriminated against, the
8 G.A. Res. 2542 (XXIV), U.N. Doc. 13 G. A. Res 1803 (XVII), UN Doc A/RES/1720, A/RES/2542(XXIV), (Dec 11, 1969). (Dec. 14, 1962). 9 Supra note 3. 14 Supra note 3. 10 U.N. Charter, art. 1, para. 2 (1945). 15 International Covenant on Civil and Political Rights, 11 Supra note 1. Dec. 16, 1966, vol. 999 U.N.T.S. 171. 12 Supra note 3. 16 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, vol. 993 U.N.T.S. 3. CORPUS JURIS|3
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The long-standing emergence of recognition providing a better sense of the nature of the of rights such as the right to self- right to development by exploring various determination of an individual’s economic, aspects of the right. social and cultural interests as well the right of a State over its natural resources, all in the 1. The Right to Self-determination interest of maintaining peaceful international Throughout the evolution of the right to relations have assisted in the formation of an development, various international interpretation of the right to development documents reflect a strong display of the that aims at having human beings at the right to self-determination as a facet of the centre of growth and development so that right to development. The right to self- they may be the ultimate beneficiaries of determination comprises the people’s right to economic growth. determine their political status and pursue their economic, social and cultural RIGHT TO DEVELOPMENT – WHAT IT development.18 MEANS AND ENTAILS This sentiment can be seen in the Charter of The Right to development advocates for not United Nations that aims at promoting only economic growth but also the peaceful and friendly relations among nations realization of the potentialities of human based on principles of equality and self- beings in harmony with the community, determination.19 This principle is also satisfaction of both material and non- acknowledged in the Declaration on material needs, achievement of individual Permanent Sovereignty of Natural and collective self-reliance, etc, based on Resources20 and common article 1 of the principles of equality and non- International Covenants on Human Rights21. discrimination.17 This demonstrates the The fulfilment of human beings is the acceptance of a wider interpretation of the intended direction of the development right to development to focus on securing process22 and this fulfilment can be achieved individual rights as a result of the only through the realization of the right to development process. This section aims at self-determination of people in all aspects.
17 Supra note 4. 19 Supra note 10. 18 Declaration on Principles of International Law concerning 20 Supra note 13. Friendly Relations and Cooperation among States in accordance 21 Supra note 15 and 16. with the Charter of the United Nations, G. A. RES 2625 22 Supra note 4. (XXV), U.N. Doc. A/RES/2625(XXV), (Oct 30, 2020). CORPUS JURIS|4
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
This realization has been deemed to be a development.30 The study goes on to necessary pre-requisite for social progress23 elaborate on the concept of development as as well as the realization of the right to not only including economic growth but also development.24 The right to self- being a cultural process involving the determination can help achieve an national environment, social relations, environment conducive to the economic and education, elimination of poverty, the social progress of a nation.25 It is also participation of the whole community, etc. important for the maintenance of an internationally stable environment26 and has Wide consensus on the principle of self- been held in high regard for its contribution determination being a pre-requisite for the towards international law in the promotion realization of the right to development has of friendly relations between states.27 The led to it being acknowledged in the study by Manouchehr Ganji recognizes the Declaration on the Right to Development31. principle of self-determination as a pre- In fact, the Declaration raises the significance requisite of a human-centred multi- of the right when it mentions a threat to the dimensional approach to development.28 The right to self-determination in the same breath Declaration on the Establishment of a New as a threat of war and foreign aggression, Economic Order refers to the principle of thus, acknowledging the State’s duty to work self-determination as a principle on which towards of the elimination of both. the new economic order shall be founded.29 The study by Aureliu Cristescu on the right 2. Permanent Sovereignty over to self-determination is an important piece of Natural Resources research that re-affirms the importance of the The right to self-determination envisages an right to self-determination and the right of individual’s right to pursue economic, social permanent sovereignty over natural and cultural development of people32 and resources as a pre-requisite to the right to may also imply a state’s right of self-
23 Supra note 8. 29 G. A. 3201 (S-VI), U. N. Doc. A/RES/3201(S-VI), 24 Supra note 13. (May 1, 1974). 25 G. A. Res 3281 (XXIX), U. N. A/RES/39/163, 30 Aureliu Cristescu, Special Rapporteur of the Sub- (Dec. 12, 1974). Commission on Prevention of Discrimination and 26 G. A. Res 1514 (XV), U. N. Doc A/RES/1514(XV), Protection of Minorities, The Right to Self-Determination: (Dec. 14, 1960). Historical and Current Development on the basis of United 27 Supra note 18. Nations Instruments, U. N. Doc. E/CN. 4/Sub. 28 Manouchehr Ganji, Special Rapporteur of the 2/404/Rev. 1. (1981). Commission of Human Rights, The Realization of 31 Supra note 3. Economic, Social and Cultural Rights: Problems, Policies, 32 Supra note 15 and 16. Progress, U. N. Doc. E/CN.4/1131/Rev.1 (1975). CORPUS JURIS|5
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in determination33. This can be seen from the Stockholm Declaration36 adopted in the recognition of the right of permanent interest of environmental preservation and sovereignty over natural resources of the enhancement, again limits the use of a state’s state being a necessary precondition for the own natural resources. The declaration while fulfilment of the right to self-determination acknowledging a states’ responsibility and in turn, the right to development.34 towards the achievement of a better lifestyle, also recognizes their responsibility towards Colonization of countries has led to the maintaining and improving the environment. exploitation of natural resources belonging to The declaration looks at the pursuance of a state and left a significantly negative impact environmental amelioration as a goal in on the economy of colonized states. The harmony with the pursuance of economic right to permanent sovereignty over natural and social development. Further, the report resources grew out of the desire of these of the Brundtland Commission in 1985 also previously colonized states to attain control contributed to this conversation with its of their own natural resources. The focus on the term ‘sustainable Declaration on Permanent Sovereignty over development’.37 The Commission defined Natural Resources was adopted in the the term ‘sustainable development’ as interest of economic co-operation for the ‘development that meets the needs of the development of developing countries.35 It present without compromising the ability of asserts the right of nations to have permanent future generations to meet their own needs’. sovereignty over their natural resources in the The report advocates reasonable use of the interest of national development and well- natural resources of a state based on the need being of the people of the state thereby for future generations to depend on the same acknowledging their agency over their natural natural resources. This report describes the resources and at the same time limiting the term ‘development’ in a manner not use of natural resources to the welfare of the previously discussed by acknowledging people and development of the state. The environmental concerns while striving for
33 Hector Gros Espiell, Special Rapporteur of the Sub- 2020, 5:00 PM) Commission on Prevention of Discrimination and https://www.un.org/ga/search/view_doc.asp?symb Protection of Minorities, The Right to Self-Determination: ol=A/CONF.48/14/REV.1. Implementation of United Nations Resolutions, U. N. Doc. 37 G. Brundtland, Report of the World Commission on E/CN.4/Sub.2/405/Rev.1 (1980). Environment and Development: Our Common Future (Dec. 34 Id. 12, 2020, 5:02 PM), http://un-documents.net/our- 35 Supra note 13. common-future.pdf. 36 Report on the United Nations Conference on the Human Environment, U. N. Doc. A/CONF.48/14 (Dec. 12, CORPUS JURIS|6
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in development. There has not been much of a state over its natural resources as an literature on the involvement of extension of the right of permanent environmental preservation as a part of the sovereignty of a state.41 The study by Hector right to development. However, the right to Gros Espiell on the right to self- development considers human beings as the determination makes references to subject and not object of development and permanent sovereignty over natural therefore, aims at the social well-being of the resources being implicit in the right to self- people. This paper argues that this goal of determination in paragraph 46, chapter I and social enrichment cannot possibly be also considers permanent sovereignty over achieved without also focusing on facets of natural resources to be the economic content environmental preservation. There is an of the right to self-determination in urgent need for explicit international paragraph 136, chapter II.42 Paragraph 143, recognition of environmental welfare in the chapter II of the study asserts that the conversation around the right to realization of the right to self-determination development. is not possible without the prior implementation of a nation’s right to However, permanent sovereignty over permanent sovereignty over its natural natural resources has been explored as one of resources. the facets to the right to development in the following manner. Thus, we can conclude of an international consensus on a state’s permanent sovereignty The right to permanent sovereignty over over its natural recourses being an essential natural resources has been considered to be a component of the right to development. basic constituent38 as well as a fundamental element and pre-requisite to the right to 3. Equality and non-discrimination development.39 It has also been The right to development strives to assure acknowledged as a pre-condition for social the well-being of the entire population and progress and development.40 The Declaration fair distribution of the benefits of on the Establishment of a New Economic development to all. This encompasses a Order recognizes the permanent sovereignty vision where people are rid of their social,
38 Supra note 18. 41 Supra note 29. 39 Supra note 30. 42 Supra note 33. 40 Supra note 8. CORPUS JURIS|7
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in cultural and political prejudices so that for non-discrimination across all factors to people currently facing oppression can fairly achieve a progressive society.44 Article 2 of and actively participate in politics and the Declaration recognizes that social democratic rule is maintained. This set up progress and development must be founded cannot be achieved when different parts of on respect for the dignity and value of human the population are being discriminated beings and this requires the implementation against. The situation leads to increased of civil, political, economic, social and tension when these prejudices seep into the cultural rights without any form of politics of a nation causing systematic discrimination. The declaration stipulates the oppression of certain classes. As long as the importance of non-discrimination in rights of any men are suppressed, the right to implementing the right to work. It looks at self-determination will be violated and the need for advocacy of people’s rights and society will not be able to achieve obligations without discrimination as development in its truest sense. Thus, there necessary to attain social progress and has been a strong call for the inclusion of the development. The study by Manouchehr principle of equality and non-discrimination Ganji also reiterates the principles of non- in the right to development. discrimination given in the Declaration on Social Progress and Development for the fair Common Article 1 of the International exercise of economic, social and cultural Covenants on Human Rights, recognizes the rights.45 The Declaration on the right of people to self-determination by Establishment of a New Economic Order which they are free to pursue economic, which endeavours to establish a world with social and cultural development.43 Common equality between nations by aiming at the Article 2 of the Covenants mandate the elimination of the gap between developed parties to ensure the rights presented in the and developing countries was adopted to Covenant to all their citizens without advance the intent of the Charter of the distinction of any kind thereby ascertaining United Nations to promote economic the right to self-determination for all people advancement and social progress.46 The study without allowing for discrimination. The by the Secretary-General on the Regional and Declaration on Social Progress and National Dimensions of the Right to Development heavily emphasizes the need Development as a Human Right establishes a
43 Supra note 15 and 16. 45 Supra note 28. 44 Supra note 8. 46 Supra note 29. CORPUS JURIS|8
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in link between the right to development and The Final Act of the International the principle of equality of opportunity and Conference on Human Rights at Teheran states that any denial of a fundamental looks at general and complete disarmament human right (which includes the right to non- as one of the highest aspirations of all people. discrimination) would be a violation of the 49 The Conference adopted a resolution right to development.47 The Declaration on calling for an immediate agreement on the Right to Development considers the general and complete disarmament noting elimination of discrimination to be an that the arms race absorbs a significant integral part of the development path and portion of the resources of a State and that acknowledges the instruments concerning relocation of these resources to policies that the prevention of discrimination to be an help accelerate economic and social progress important agent in furthering economic and would significantly contribute to the social development.48 implementation of human rights and fundamental freedoms. The Declaration on 4. Disarmament Social Progress and Development also While considering the right to development advocates for a shift of resources currently from a social point of view and encouraging being used for military purposes towards the the right to self-determination in social, welfare of the people, particularly, in cultural, economic and political aspects, the developing countries. 50 The Declaration right to equality and non-discrimination, includes, inter alia, a complete prohibition of right to participation, we may not ignore the nuclear tests, the productions and storing of repercussions of violence and war on the chemical and biological weapons and also the progress and well-being of society. There prevention of pollution of water bodies due have been several declarations and reports to nuclear wastes as a part of the measures to that have focused on the need for world-wide achieve disarmament. disarmament to advance social progress and development. The re-allocation of the resources used in war can have a major impact on the protection of fundamental freedoms of human beings
47 U. N. Secretary-General, The regional and national 49 Final Act of the International Conference on Human Rights, dimensions of development as a human right - Study by Report U. N. Doc. A/CONF.32/41 (1968) (Dec. 12, 2020, of the Secretary-General, U. N. Doc. E/CN.4/1488 (Dec 5:05 PM), 31, 1981). https://legal.un.org/avl/pdf/ha/fatchr/Final_Act_o 48 Supra note 3. f_TehranConf.pdf. 50 Supra note 8. CORPUS JURIS|9
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in including the right to self-determination and in cultural and political aspects, it is also help the cause of development. The necessary to ensure that all persons can Declaration on the Right to Development participate without discrimination as an has been formed keeping in mind the acknowledgement of the principle that all contribution that disarmament will have on human beings are born free and equal in the cause of development and mandates dignity and rights.55 The study by states to look towards complete disarmament Manouchehr Ganji asserts that the so that resources currently occupied by arms identification of development goals can assist may contribute to development in the in ensuring an increased level of participation future.51 among the people.56 It also advocates the establishment of institutions that encourage 5. Participation the participation of the underprivileged in the The right of people to participate not only decision-making process. assumes an important role in securing human rights but is also considered to be a It links the participation of people in fundamental human right, thus, making it a governance to the development of a state. part of the ideal of development. However, popular participation of the people is not always enough and hence, states also The right to participation has been have a responsibility to also ensure effective recognized as a pre-requisite for the participation of people for the realization of implementation and protection of human the right.57 For this, it is necessary to rights.52 Human beings have the right to self- recognize the importance of involving the determination which also includes the right youth in future development and to participate in political, social, cultural and encouraging informed participation among economic aspects.53 Article 27 of the the citizens in the decision-making process of Universal Declaration on Human Rights working towards development.58 There is recognizes people’s right to participate in the also a need for participation at an cultural life of the community.54 While international level by people and nations to recognizing the right of people to participate solve world problems. The Declaration on
51 Supra note 3. 55 International Convention on Elimination on all forms of 52 Supra note 49. Racial Discrimination, Dec 21, 1965, vol. 660 U.N.T.S. 53 Supra note 15 and 16. 195 54 Supra note 1. 56 Supra note 28. 57 Supra note 8. 58 Supra note 49. CORPUS JURIS|10
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the Establishment of a New Economic concludes that it not possible to solely apply Order also looks for the establishment of a foreign models and methods for the new economic order based on respect for the implementation of the right to development full and effective participation of all countries and that every State should implement a in solving world economic problems.59 This model based on its local needs. Declaration thus upholds the standard of participation for countries in the It is through the right to participation that conversation around international people can advocate for a change in policy, development. Education has been seen as a culture, etc and the deprivation of such a tool to encourage the participation of people right is directly linked to the violation of in the widest sense so that it may lead to human rights. The Declaration on the Right understanding, tolerance and friendship to Development63 aims at achieving a model among nations.60 The Charter of Economic of development based on free and Rights and Duties of States also recognizes meaningful participation of all people. It the right of States to participate in recognizes participation as an important international decision-making be it factor in the full realization of human rights subregional, regional or interregional.61 The and encourages states to adopt measures to Report of the Secretary-General on the increase popular participation of the people International Dimensions of the Right to in all spheres. Development as a Human Right reaffirms participation as a pre-requisite to the right to IMPLEMENTATION OF THE RIGHT TO development and also views participation as DEVELOPMENT not only a means to an end but also an end in itself.62 The Report advocates the significance The evolution of the right to development of participation at all levels as a necessary from solely an economic perspective to being ideal for the realization of the right to recognized as a pre-requisite for securing development. It stresses the importance of human rights for all has been a positive the role of participation of labourers, process for it looks at an ideal society not employers, women, youth and education in only in monetary terms but in terms of the promoting development. The Report all-round well-being of individuals living in a
59 Supra note 29. 62 Supra note 4. 60 Supra note 16. 63 Supra note 3. 61 Supra note 25. CORPUS JURIS|11
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in state by making human beings the subject of dignity can be achieved by a system where development. It has garnered international people are freely able to exercise their right to approval and paved the way of a vast series self-determination in social, cultural and of literature on the subject. It is a right now political aspects. human rights form the basis recognized across several resolutions, of democracy which represents the will of the studies, reports, etc. It would now be entire population. appropriate to look towards the implementation of the right. Therefore, infringement of the rights of any human being or a class of people can hamper The Declaration on the Right to democratic rule and set back the movement Development while considering for every individual’s right to development. development to be a comprehensive term, gives special importance to the Any violation of human rights would be an accomplishment of development in encroachment on the cause of development. developing states.64 It is mindful of the Colonialism, apartheid, all forms of racism impact international co-operation can have and racial discrimination, aggression, threats on the development of developing states and over national sovereignty or territorial calls for worldwide contribution to the integrity, threats of war, etc are disastrous for realization of this cause. This section engages the promotion of development66. However, with the literature on the implementation of violations of human rights would also the right to development. constitute things like poverty, unemployment, suppression of educational 1. Obstacles in the realization of the opportunities, uneven access to healthcare, right to development. etc as per several international references. Since development has been interpreted in a A. Massive and Flagrant Violations of wide sense, as involving social progress and Human Rights welfare of the people, any action or inaction Securing human rights for all is an essential posing a threat to the dignity or fundamental requirement for the realization of the right to freedoms of human beings can be considered development. Human beings possess a threat to development. inherent dignity65 and the benefit of this
64 Id. 66 Supra note 3. 65 Supra note 1. CORPUS JURIS|12
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
B. Apartheid presenting massive hurdles in the cause of all- Apartheid is a system of separation based on round development of individuals. race which enabled discrimination in political, social and economic settings and The Declaration on the Right to was prevalent in South Africa during white Development, rightly70, considers apartheid a rule. Already having established human rights system of oppression not conducive for as a pre-condition of the realization of the creating an atmosphere of development and right to development, it is adequate to say calls upon States to eliminate conditions of that apartheid in any State would also fall apartheid that pose as a threat to the people’s under this category. right to self-determination.
Apartheid in South Africa has led to several C. Individual Human Rights human rights violations such as the right to Yoram Dinstein defines ‘individual human self-determination by the deprivation of the rights’ as ‘Rights bestowed upon every right to vote and political participation of single human being personally’.71 They are black people, freedom of movement and basic rights ascribed to individuals regardless residence, etc.67 Apartheid, having a legal of their personhood or collective status.72 But basis in the country was used to suppresses Individual human rights ought not to be seen several fundamental human rights of black as a threat to collective human rights. While people such as the right to life, right against taking measures to avoid the massive torture and other forms of degrading violation of human rights, it is also essential treatment, right to a fair trial, freedom of to protect violations of individual rights as speech and assembly.68 These violations also the right to development has come to lead to the infringement of economic, social understand individuals as the subject and not and cultural rights of black people as well as the object of development. Any benefit of poverty, unemployment, malnutrition, etc69 development ought to, ultimately, contribute to the welfare of the people.
67 Sandra Liebenberg, Human Development and Human http://www.jstor.org/stable/758496, (Visited on Rights – South African Country Study, 2000. Dec. 12, 2020, 5:11 PM). 68 Id. 72 Odin Lysaker, IndivIdual and Collective Human Rights, 69 Id. (Dec. 12, 2020, 5:12 PM) 70 Supra note 3. https://www.uio.no/studier/emner/jus/humanright 71 Yoram Dinstein, Collective Human Rights of Peoples and s/HUMR5131/h15/odin-lysaker-trial-lecture-nchr- Minorities, 25 THE INTERNATIONAL AND october-13-2015.pdf. COMPARATIVE LAW QUARTERLY (1976), CORPUS JURIS|13
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The Declaration on the Right to a superficial view of development. Such a Development recognizes the responsibility view does not align with the interpretation of of a State to contribute to the development development as envisioned in documents of all people, collectively as well as having international recognition and individually. 73 approval. A nation’s policies should be influenced by a wide range of considerations 2. Implementation at a national level ranging from social and cultural welfare to the political and economic welfare of the A. Development strategies and policies citizens. A nation’s policies also need to look For a State to achieve economic, social, at development from a long-term view. For cultural and political development, it would better policies and strategies, it would be in be necessary to look toward methods of the nation’s interest to encourage the field of realizing development. The foremost research, especially in science and humanities effective tool for a state to implement its to accommodate more literature and intention would be to turn them into policies. jurisprudence in law and governance so that Every state needs to look for areas in which there is finer data on the formulation and development is required and formulate a implementation of these policies and strategy based on its needs and its cultural strategies. outlook for their development process. However, it has also been noted that there is Development cannot merely be achieved by no one formula when considering aiming at financial empowerment. It has been development strategies. Countries seen that strategies that are only oriented considered developed face different towards economic growth and that are problems than in developing countries. guided by purely financial considerations Moreover, issues faced by each developing have failed to achieve the realization of the country differ from each other. Therefore, it right to development.74 Such an outlook has been noted that there is no one model for looks at poverty as the root of every problem the formation of development policies and in a nation and ignores the mental and strategies75 and every country’s model should physical well-being of individuals and leads to cater to its own needs.
73 Supra note 3. 75 Supra note 4. 74 U. N. Secretary-General, Global Consultation on the Right to Development as a Human Right, U. N. Doc E/CN.4/1990/9/Rev. 1 (Sept. 26, 1990). CORPUS JURIS|14
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
B. Participation the problems faced by poverty-ridden classes Participation has been considered to be an and take appropriate steps in the direction of important facet of the right to development. the elimination of poverty. One way to However, participation is not only seen as a increase economic participation is for states characteristic of the right to development but to identify skills that can be easily taught and is also an enabler for the effective encouraged to help uplift lower-classes. implementation of the right to development. Governments also need to be able to prevent This principle of participation is a means to hoarding of wealth by the rich and create a an end and is recognized in the Declaration system for equal distribution of resources for on Social Progress and Development.76 The the on-going circulation of capital which Declaration believes that participation of all would lead to independence and self-reliance elements of society (individually and among poor people. A potent contributor to collectively through associations) is necessary increasing economic participation would be for the realization of the right to promoting local businesses. Cultural and development. A government should have social engagement may be promoted by platforms that allow people to contribute to encouraging the fields of humanities and economic and political conversations. science, encouraging artists across all fields, Accordingly, arrangements for social and creating and providing financial assistance to cultural participation and the encouragement institutions dedicated to cultural preservation thereof also need to be made. Political and upliftment of socially disadvantaged participation helps create an inclusive classes. An interesting advent of the right to democracy. It not only matters that there is participation in the current scenario is the territorial representation, but there also needs internet. Through convenient access to social to be space for the representation of religious media platforms, all citizens have an equal minorities, cultural minorities, language- chance to involve themselves in the based minorities, etc, which will aid in conversation around society, culture, policy achieving a progressive democracy and also formation, etc. Participation through social contribute to cultural preservation. media has inadvertently promoted discussion Economic participation is essential for and interest in social causes and national representation among the lower-classes so governance. However, the significance of the that a nation can have a better perception of internet in promoting the right to participate
76 Supra note 8. CORPUS JURIS|15
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in has been cut short by its limited scope. rights. Such an awareness, when created, will Political leaders may aid in widening the help empower rural populations so that they scope of the internet by making may also contribute to the economic and arrangements for participation through the political development of a country. internet in the interest of encouraging participation and advancing the cause of However, the ambit of legal assistance does development. not only encompass the rural population. Legal assistance needs to be looked at from C. Legal Assistance the perspective of all disadvantaged classes. Human rights find their roots in justice and The patriarchal model of a working man and fair treatment for all. It is through the housewife has resulted in the systematic procurement of justice that human rights can oppression of women’s financial and cultural be fully achieved. When aiming for independence throughout history. Along development, a state, inter alia, looks at with stringent laws, the State also needs to incorporating principles of development in provide easy access to justice for women, by their policies, reducing the crime rate, etc. holding legal camps for education on the law For a state to implement these objectives, it relating to women and children, medical needs to also be able to ensure equal access check-ups, programmes for women facing to justice. Access to justice is a hallmark of a domestic violence of any kind, etc. Another developed state and any denial of justice is class of persons that require legal assistance directly related to the obstruction of the would persons being tried for crimes. cause of development. Securing legal assistance to persons being tried for crimes is a form of ensuring justice. However, in most developing countries, it is Requiring lawyers to take pro-bono cases, easier to gain access to justice in urban areas encouraging legal aid services, etc can will than in rural places. Lower literacy rates, help provide effective legal assistance to poverty, language barriers, location and people under trial. transport troubles all act as hurdles in easing the path to justice. There is a need for As with increasing legal education in rural assistance not only when it comes to justice areas, it is also necessary to incorporate legal against crimes suffered but also in providing education in school syllabuses. Ignorance rural populations with education on laws, isn’t an excuse to crime and so it is only fair their rights and the implications of such that children receive appropriate education
CORPUS JURIS|16
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in on law, governance, political science, rights identifying specific areas where international of citizens, democracy, etc. It is through a action is needed to develop the existing strong legal education that a nation may build international framework.79 However, while the foundation of a participative State. both these documents emphasize the role of international co-operation in enforcing the Awareness of democracy and rights, across right, they fail to mention any concrete the globe, will ultimately contribute to methods for enforcement of the same right. creating a self-reliant and self-sufficient world, ensuring peace and friendly relations Financial assistance to developing countries among States and provide a check against is a foremost requirement when enforcing violations of human rights. Provisions for the right to development. Instead of adding legal assistance for all is directly linked to the on to the debt of poverty struck nations, right to development as envisioned by the developed countries need to be able to Declaration on the Right to Development.77 recognize the benefit of financial assistance as having contributed more to development 3. Implementation at an than debt-ridden economics. Every state too international level has a right to participate in international politics and have a say in assisting developing There have been several discussions and countries based on the principles of equality studies for the enforcement of the right to and development. development at the international level. It is the duty of developed nations to assist Every state has a responsibility to make an developing nations in the implementation of effort in maintaining peaceful conditions and the right to development. This principle has friendly relations between other states in the gained recognition in the Declaration on the interest of further development. Any conflict Right to Development which calls for an between nations likely to result in war should international understanding and action to aid be resolved through dispute resolution in the implementation of the right.78 The methods such as arbitration, mediation, General Assembly Resolution 41/120 on conciliation, negotiation, etc. Setting International Standards in the field of Human Rights recognizes the value of
77 Supra note 3. 79 G. A. Res. 41/120, U. N. Doc. A/RES/41/120, 78 Id. (Dec. 4, 1986). CORPUS JURIS|17
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
In recent times, the world has seen a huge refugee crisis. Crimes against minorities, massive human rights violations, war, etc have forced people to flee their homes and seek refuge in safer countries. In such a situation it becomes the responsibility of developed nations to provide shelter and legal assistance to refugees to help them secure homes in other countries. Assisting immigrants and refugees will serve to contribute to the issue of statelessness and is aligned with the right to development.
It has been seen that developing nations cannot get themselves out of a loop without the assistance of resources provided by developed nations. It is the duty of developed nations to not treat developing nations as a colony and recognize their permanent sovereignty over their natural resources and independence in deciding their policies while also providing support for the realization of the right to development.
CORPUS JURIS|18
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
Considering the right to development only from an economic perspective has led to negative results in the strive for development. However, this concept has rightly evolved through various documents of international recognition into an all- embracing model that takes into account the growth of human beings in social, cultural, political and economic terms. It looks at individuals as the subject and not the object of development. Violations of human rights cause impediments in the realization of the right to development. It is for every individual to participate in the process of governance for the effective implementation of the right. States hold a responsibility to centralize the concept of development when forming legislative policies. Governments need to ensure that these legislative policies reflect the essence of the right to development as established across various studies and resolutions and that its substance is not lost in the implementation of these policies. International co-operation is also essential for the realization of the right. It is only through the active effort of developed countries in assisting developing countries that developing countries may look forward to a self-reliant and developed economy. Thus, a strong focus of the right in legislation along with active participation can lead us to the realization of the right to development.
CORPUS JURIS|19
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ANALYZING THE EXCLUSIONARY TERMS IN COPYRIGHT LICENSING AGREEMENTS
-SHIVANI MALIK*
ABSTRACT
Upon grant of Intellectual Property Right, the holder of such IPR has the absolute choice to decide the most effective way to exploit it. The decision of the IPR holder is a commercial decision and would be contingent upon whether the IPR holder receives a net surplus through licensing vis-à-vis the alternative of exploiting the IPR itself. It is entirely plausible that the IPR holder may choose to focus on product design and outsource the manufacturing to other enterprises through licensing. The focus of this research article is to examine the treatment of such licensing arrangements under the Indian competition regime. Such licensing arrangements, as we shall see, can take various forms. However, in its simplest form, licensing agreements are usually vertical agreements – covered by Section 3(4) of the Indian Competition Act, 2002 – that provides for an enterprise operating in the upstream market (licensor) licensing its IPR to another enterprise in a downstream market (licensee). It is possible that the Licensing agreement is entered into between enterprises operating at the same level of the production chain, for the purposes of such agreement the parties will be perceived to be vertically related. Further, in most cases, the licensor of an IP right happens to be a dominant player in the delineated relevant market and thus, the need for a competition assessment for a possible contravention of Section 4 of the Competition Act, 2002 arises owing to abuse of such dominant position. The aspect of whether the alleged conduct under the licensing arrangement is purely a vertical restraint or a horizontal arrangement or as a case of abuse of dominant position gains relevance, given the difference in the evaluation standard applied to various conducts examinable under the Competition Act, 2002, is analyzed in this research paper.
KEYWORDS: Intellectual Property Rights, Competition Law, Copyrights, Contracts, Interplay.
* Associate, Lex Indis Law Offices. CORPUS JURIS|20
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION prospective inventors to innovate and create Intellectual Property. After all, that is what Intellectual Property Right (hereinafter drives economic growth and by extension, a “IPR”) creates a temporary right in favour of knowledge-based economy. the IPR holder to exclude others from using that IPR for a certain period. This period of The decisive criterion for assessing the exclusivity permits the IPR holder to exploit agreements amenable to the scrutiny of the the value that is assigned to the IPR and is Competition Act, 2002 is them having an seen as a reward or incentive for the effort Appreciable Adverse Effect on Competition invested by the inventor in creating the IPR. (hereinafter “AAEC”) in India. While Therefore, the IPR essentially grants a agreements that fall under Section 3(3)82 of monopoly right to the holder of such IPR for the Competition Act, which deals with a limited period of time.80 horizontal agreements (including cartels), are presumed to be having an AAEC. Vertical Competition law, on the other hand, is agreements set out under Section 3(4)83 of the concerned81 with preventing anti-competitive Competition Act are tested under a rule of conduct, whether effectuated as a result of reason analysis i.e. their AAEC in India needs coordinated or unilateral action. Inherent in to be proved so as to be in contravention to this interface between IPRs and Competition the provisions of the Competition Act. law is the need to ensure that not only is the Further, Section 3(5)(i)84 of the Competition IPR not subject to abuse – either in the form Act specifically provides for an exemption of excessive pricing, anti-competitive tying, for agreement falling under Section 3(3) or refusal to license, or alike factors – but also 3(4) of the Act, in case of imposition of to make sure that the antitrust regime is not reasonable restrictions for protecting IPRs overbearing and maintains the incentives for conferred under various statutes.85 Further,
80 Licensing of IP rights and competition law – Note by India, 85 In case of an agreement has been entered into to ORGANISATION FOR ECONOMIC CO-OPERATION impose reasonable restriction for protecting any of the AND DEVELOPMENT (June 6, 2019), rights recognized under any of the following statutes, [https://one.oecd.org/document/DAF/COMP/W the provisions under Sec 3(1) to 3(4) of the Act will D(2019)4/en/pdf]. not be applicable: Copyright Act, 1957 (14 of 1957); 81 Ibid. Patents Act, 1970 (39 of 1970); Trade and 82 COMPETITION ACT 2002 § 3(3). Merchandise Marks Act, 1958 (43 of 1958) or the 83 COMPETITION ACT 2002 § 3(4). Trade Marks Act, 1999 (47 of 1999); Geographical 84 COMPETITION ACT 2002 § 3(5). Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999); Designs Act, 2000 (16 of CORPUS JURIS|21
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the conduct falling under Section 486 of the of preventing unauthorized copying of a Competition Act, for possible abuse of work.89 dominant position, is also tested on the touchstone of reasonability. Thus, though Licensing is the utmost critical activity, which the specific exemption provided under takes place in the life of a copyright work.90 Section 3(5) of the Act does not explicitly A license is a grant by an IP owner to another applies to Section 4 cases, implicitly such party (the licensee) of the rights to use that analysis is integral to the reasonability test property.91 Copyright license is an carried out for competition assessment of undertaking by the owner of the copyright such cases. that gives permission for the exploitation of the copyrighted work, without any fear of LICENSING OF COPYRIGHT infringement.92 A copyright license typically affords the licensee the right to reproduce Copyright protection is concerned with the and distribute, and eventually sell copies of process of creation of a work, but not with the expression. Thus, in the popular mind, the ideas going into it; not with the copyright licensing is associated with book functionality or the end product that finally publishing, music recording, and movies.93 results.87 It is the essence of copyright that subsists in any material form in which the A fundamental feature of licensing is that ideas are transformed.88 Since copyright without the permission of the owner, any act protects only the expression of an idea and by a third-party involving sale of goods or not the idea itself, it provides the crucial right services based on the asset would be illegal.94 This simple standard leads to the concept of
2000); Semi-conductor Integrated Circuits Layout- 91 ALEXANDER I. POLTORAK AND PAUL J. LERNER, Design Act, 2000 (37 of 2000). ESSENTIALS OF LICENSING INTELLECTUAL 86 COMPETITION ACT 2002 § 4. PROPERTY 6 (2004). 87 Cyprotex Discovery v. University of Sheffield, 92 Id. EWCA Civ 380 (2004). 93 2 DEBRA J. PEARLSTEIN, ANTITRUST LAW 88 Rajesh v. Tahiliani, FAO (OS) No.393/2008 (2008). DEVELOPMENTS 91 (5 ed. American Bar Association 89CHARLES D. DESFORGES, THE 2002). COMMERCIAL EXPLOITATION OF 94 Justice.gov. 2020. Chapter 4: Variations On INTELLECTUAL PROPERTY RIGHTS BY Intellectual Property Licensing Practices, 2020 LICENSING 7 (2001). (Online) Available at: 90 DR. RAMAN MITTAL, LICENSING INTELLECTUAL https://www.justice.gov/atr/chapter-4-variations- PROPERTY: LAW AND MANAGEMENT 153 (2011). intellectual-property-licensing-practices#iii (Accessed on 13 December 2020). CORPUS JURIS|22
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in infringement of the rights of the legal owner, A licensor may grant a license to authorize whereby an unauthorized third party exploits the use of copyright work to a licensee, the asset said owner for commercial sparing him from a claim of infringement or purposes.95 The party must be the actual unauthorized use brought by the licensor. An owner of the IP to be able to license it, and owner of a copyright may grant a license or therefore, they have the right to do so. The transfer some or all of his rights to others in persons executing the license on behalf of exchange for a consideration for the each party must have the authority to commit utilization of his work for monetary benefits. their respective parties to a license.96 The Copyright Act, 1957 classifies licenses Licensing is considered to be pro- into exclusive or non-exclusive. Section 2 (j) competitive because it enables licensee to of the Copyright Act states that an “exclusive combine complimentary factors of license” confers on the licensee or on the productions, reduces transaction and licensee and persons authorized by him, to production costs, and free-riding by others.97 the exclusion of all other persons (including A license agreement is a partnership between the owner of the copyright), any right an IP owner (licensor) and another who is comprised in the Copyright in a work. It is authorized to use such rights (licensee) under not necessary that an exclusive license is certain conditions, usually for a monetary granted to the entire copyright; it could be compensation in the form of a flat fee or granted to a part thereof.99 The term “non- running royalty that is often a percentage or exclusive license” is not defined in the Copyright share of the revenues gained from use of the Act. However, it is just the opposite of an invention.98 In other words, a license grants exclusive license.100 the licensee rights in property without transferring ownership of the property. While negotiating a license agreement, it is crucial to understand as to why companies license their IPs or wish to become a licensee,
95 Id. http://www.wipo.int/export/sites/www/sme/en/d 96 Supra note 91, at 24, 91. ocuments/pdf/licensing.pdf (Accessed on 13 97 ABIR ROY & JAYANT KUMAR, COMPETITION LAW December 2020) IN INDIA 524 (2 ed. Eastern Law House books 2014) 99 Supra note 91, at 91, 169. 98 World Intellectual Property Organization Licensing, 100 Id. [Online] Available at: CORPUS JURIS|23
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in along with understanding the potential risks However, a licensing agreement can be of entering such deal. This will not only help terminated and the script of such an them to grasp the motivations behind the agreement will always contain clauses demands of the other party, but also enable specifying the circumstances when the them to mitigate risks when drafting a license termination can take place and how any agreement and quintessentially reach a “win- resultant actions like recovery of information win” agreement.101 are to be executed.
Licensing is different from sale and A “license agreement” should outline the assignment.102 A sale is an exchange of following particulars:105 property, goods or services for a contracted sum of money or credit, in which the a. Identification of the work and rights transaction takes place between an agreeable assigned, vendor and a purchaser, who subsequently b. Duration of the license, becomes the owner. An assignment103 c. Territorial extent of the license, involves an absolute transfer of ownership in d. Amount of royalty payable, condition a right by an owner (the assignor) to a relating to revision, extension and/or recipient (the assignee), wherein the owner termination of license. gives up the right to return of the asset if the agreement is breached. Assignments must be The Copyright Board106 shall settle any in writing and the document must be signed dispute, in respect of the license. Some of the by or on behalf of the assignor in the typical terms that are included in a license presence of witnesses104. agreement relating to IPRs comprise of territorial exclusivity, royalties, duration, field In an assignment agreement, any of use restrictions, non-competition clauses, ongoing/persistent rights can be enforced no-challenge clauses, improvements, tying only if the assignee can still be sued.
101 EUROPEAN IPR HELPDESK, FACT SHEET 103 MARSHALL, THE ASSIGNMENT OF CHOSES IN COMMERCIALIZING INTELLECTUAL PROPERTY: ACTION; BAILEY, 47 L.Q.R. 526; 48 L.Q.R. 248, 547. LICENSE AGREEMENTS 4 (2015). 104 SECTION 19, COPYRIGHT ACT, 1957. 102 L.G. Balfour Co. v. FTC, 442 F.2d 1 (7th Cir. 1971), 105 Id. p.3. 106 COPYRIGHT ACT, 1957 § 12. CORPUS JURIS|24
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in and bundling, prices, terms and conditions.107 COMPETITION ISSUES IN COPYRIGHT Copyright license agreements can also LICENSING include escrow provisions108, through which the licensee is granted with the possibility to Intellectual Property licensing can simplify access physical copies of the work (e.g. sound the integration of licensed property with recording or movie) or the software’s source complementary factors of production, which code.109 can be beneficial to the consumers in the form of reduced costs and introduction of Cory J. Furman110 is of the opinion that new products in the market.111 The said different types of commercial transactions integration has the following advantages:112 might incorporate an IP licensing component. He gives examples of such a. It may lead to enhanced and efficient agreement types within which incorporation exploitation of IP; of IP licensing provisions may be b. It may also result in increased incentives appropriate. A few examples could be in the for creativity and investment in the field form of franchise agreement, product of research and development. distribution agreement, agency agreement, joint venture agreement and the like. Thus, it would not be wrong to state that According to him, one of the key issues to licensing constitutes an imperative part of the copyright licensing is to decide whether or IPRs regime, or to be more specific, not the license will cover updates to the work industrial property rights regime.113 As in case updates are created. opposed to restriction of competition, IP licensing spreads opportunities for traders by motivating their connection to the Patent
107 DAVID BAILEY & RICHARD WHISH, COMPETITION https://www.wipo.int/publications/en/details.jsp?Id LAW 771-773 (6 ed. Oxford University press 2012). =358&plang=EN (Accessed on 13 December 2020). 108 An escrow provision outlines the terms and 110 CORY J. FURMAN, DRAFTING INTELLECTUAL conditions between parties involved, and the PROPERTY LICENSE AGREEMENTS: ISSUES responsibility of each party and should fully outline OVERVIEW (2010). the conditions for all parties involved. 111 Supra note 93, Section 2.3 (1995). 109 Wipo.int 2020, WIPO GuIde on the Licensing of 112 Supra note 91, at 91, 578. Copyright and Related Rights, WORLD INTELLECTUAL 113 Farok J. Contractor, Technology Licensing Practices in PROPERTY ORGANIZATION (2004) (Online) Available US Companies: Corporate and Public Policy Implications, at: COLUMBIA JOURNAL OF WORLD BUSINESS (Fall 1983), 18(3): 80–89. CORPUS JURIS|25
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in holders through agreements so as to promote Broadly speaking, competition issues related competition by enabling a wider to IPRs include:117 dissemination of the protected technologies or knowledge, and products and services a. Exclusionary terms in the licensing of using the protected Patent as input.114 IPRs, specifically the inclusion of Undeniably, specific contractual agreements restrictive clauses such as – and market conditions give any licensing agreement its business-restrictive character, i. territorial restraints, which relatively create essential restrictions ii. exclusive dealing arrangement, and provides value to the agreement.115 iii. tying or grant back requirements in licensing contracts; Anti-competitiveness of a licensing agreement is reliant on certain threshold b. Use of IPR to reinforce or extend the principles:116 abuse of dominant position in the market unlawfully; a. End-result of the license (i.e., appreciable c. IPRs as an element of mergers and co- adverse effect on competition); operative arrangements; b. Position of the parties to the license (i.e., d. Refusal to deal. dominant position or market power); c. Competitive relationship between the LICENSING PRACTICES THAT MAY HAVE parties to the license (i.e., whether vertical ANTI-COMPETITIVE EFFECTS or horizontal); and d. Appropriate analytical test to be applied There is no competition within the licensed (i.e., whether per se approach or rule of property unless a contract surfaces between reason approach). the licensor and the licensee, and this is due to the exclusionary trait of IPRs.118 However, the license creates competition between the
114 Bourne v. Walt Disney Co., 68 F.3d 621 (2d Cir. http://www.legalserviceindia.com/legal/article-1305- 1995), p.14. overview-of-competition-law-and-ipr.html (Accessed 115 Id. on 13 December 2020). 116 Supra note 91, 580. 118 Supra note 91, 588. 117 Adv. Shirish, Overview of Competition Law And IPR, LEGAL SERVICE INDIA (Online) Available at CORPUS JURIS|26
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in parties by allowing the licensee to make use practices, which may include for example exclusive of the impugned property. To prevent this grant-back conditions, conditions preventing competition materializing, licensors attach challenges to validity and coercive package licensing, conditions to the license to compete with in the light of the relevant laws and regulations of that other licensor or amongst licensees.119 It has Member. been internationally acknowledged that there are certain licensing practices, which may The practices that ensue among others have obstruct competition. Article 40(1), TRIPS attracted the attention of competition law Agreement, 1994 states that: “Members agree from various jurisdictions globally and have that some licensing practices or conditions pertaining been categorically studied in the present to intellectual property rights, which restrain research article: competition, may have adverse effects on trade and a. Territorial restrictions; may impede the transfer and dissemination of b. Exclusive dealing arrangement; and technology.” Thus, Member States have been c. Grant-back. bestowed with the legislative liberty for the prevention/control of such practices. Territorial Restrictions
Article 40(2), TRIPS Agreement, 1994 states An important form of non-price vertical that: restraint is the standard “territorial allocation” scheme.120 License contracts often limit the Nothing in this Agreement shall prevent Members fields of use in which a licensee may operate; from specifying in their legislation licensing practices the customers with whom he could deal or or conditions that may in particular cases constitute the territories in which he could sell.121 The an abuse of intellectual property rights having an inclusion of such clauses (restrictions) does adverse effect on competition in the relevant market. not render the contract “per se” illegal and are As provided above, a Member may adopt, consistently normally acceptable under Competition Law. with the other provisions of this Agreement, In majority of the scenarios, such restrictions appropriate measures to prevent or control such
119 Id. 121 Supra note 89. 120 KEITH N. HYLTON, ANTITRUST LAW ECONOMIC THEORY & COMMON LAW EVOLUTION 264 (2010). CORPUS JURIS|27
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in are vertical in nature and are subject to the Intriguingly, territorial restrictions often “rule of reason” analysis.122 receive differential treatment in different jurisdictions. Suppose there are four ice- Non-compete agreements would also have cream manufactures, all of whom one day the effect of incorporating territorial come to a conclusion that their labour to restrictions. The primary concern in non- compete in the complete city was expensive compete agreements relates to the potential and damaging. Each of the four that non-compete provisions between manufacturers decides to sell ice-cream to competitors will have horizontal impact of retail shops in only one part of the city. This allocating markets.123 Territorial restrictions process cannot be termed as pricing are initiated by a manufacturer, who assigns management because each of the four distributors to a particular geographical area manufacturers is free to determine their own or sales territory with the objective of price at which he wishes to sell. However, it restricting intra-brand competition,124 i.e., is a restriction on trade because in the process competition between distributors selling the of carving out the territory in which each may same products. plan to sell, they make it difficult for grocery stores to acquire a choice amidst all four One of the three major ways in which manufacturers. The argument becomes suppliers can influence competitive palpable when the same kind of agreement is conditions within the distribution networks placed on a national scale. For example, for their products are as follows:125 suppose Fiat and Chevrolet comes to an agreement that Fiat would not sell its cars in a. Resale price fixing; Florida and Chevrolet would not sell its cars b. Absolute/airtight territorial in Arizona. In the present scenario, clearly confinement; and defining the territory makes it prudent for c. Customer allocation.
122 General Talking Pictures Corporation v. Western 124 Shantanu Dutta, Jan B. HeIde & Mark Bergen, Electric Co., 304 U.S. 175, 37 U.S.P.Q. 357 (1938). See Vertical Territorial Restrictions and Public Policy: Theories also Ethyl Gasoline Corporation v. United States, 309 and Industry EvIdence, 63 JOURNAL OF MARKETING U.S. 436,456 (1940). 121-134 (1999). 123 Grant Back Clause, IP GLOSSARY (2020) Available 125 Robert Pitofsky, The “Sylvania” Case: Antitrust at: http://www.ipglossary.com/glossary/grant-back- Analysis of Non-Price Vertical Restrictions, 78 COLUMBIA clause/#.WSppcVOGNcw. (Accessed on 13 L.J., 3 (1978). December 2020). CORPUS JURIS|28
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in prevention of any anti-competitive activities Ors.,126 the MRTP Commission observed that might take place. that an agreement between a manufacturer and his distributor, which involved allocation Position in India of specific territories to each distributor, Section 3(3)(c) of the Competition Act, 2002, resulted in restricting the distributors from that may possibly be raised, states that: acquiring or dealing in any goods apart from those of the manufacturer. Also, the process Any agreement entered into between enterprises or of restricting any person or class of persons associations of enterprises or persons or associations of to whom goods may be sold is violative of persons or between any person and enterprise or Sections 33(1)(g), (c) and (a) of the practice carried on, or decision taken by, any Monopolies and Restrictive Trade Practices association of enterprises or association of persons, Act, 1969.127 including cartels, engaged in identical or similar trade of goods or provision of services, which shares the In Ghanshyam Dass Vij v. Bajaj Corp. Ltd. market or source of production or provision of services and Ors.,128 the Competition Commission of by way of allocation of geographical area of market, India (hereinafter “CCI”) held that in spite or type of goods or services, or number of customers in the fact that Bajaj Corp. Ltd. had been the market or any other similar way; shall be indulging in anti-competitive activities in the presumed to have an appreciable adverse effect on form of allocation of territory of its competition: distributors and restricting supplies to the Provided that nothing contained in this sub-section informant (Ghanshyam Dass Vij), there was shall apply to any agreement entered into by way of no adverse effect on competition as such. joint ventures if such agreement increases efficiency in The Director-General had come to the production, supply, distribution, storage, acquisition conclusion that the vertical restriction or control of goods or provision of services. imposed by the manufacturer on its distributors had actually caused appreciable In Registrar of Restrictive Trade adverse effect on competition in the relevant Agreements v. Ex-Cello India Ltd. and market, which was denied by the
126 Registrar of Restrictive Trade Agreements v. Ex- 127 VERSHA VAHINI, INDIAN COMPETITION LAW 112 Cello India Ltd. and Ors. (04.08.1975 – MRTPC, 1976 (LexisNexis Books 2016). 46 CompCas 605 NULL). 128 Ghanshyam Dass Vij v. Bajaj Corp. Ltd. and Ors., Case No. 68 of 2013 (2013). CORPUS JURIS|29
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Commission. The CCI further held that the barriers.130 In a situation where an owner of FMCG distributors’ association-fashioned any IPR imposes a condition, say in context byelaws according to which any new dealer of allocating territories or limiting territories, was required to seek a “No Objection in the license agreement that might have anti- Certificate” (Hereinafter “NOC”) from the competitive effects, there must be balancing old dealer, before beginning any work with a of interests of the owner exercising certain company, and imposed territorial restrictions exclusive rights conferred on him and the which had troubled free trade and limited need to safeguard the activity of competition competition among distributors (of a free from any adverse influences. The rights particular category of products) in a specified of any IPR holder is confined by the area. It was also held that the bye-laws of the provisions of Section 3(5), Competition Act, FMCG distributors’ association allocated the 2002 to only taking steps in order to check markets and hence fell within the ambit of any infringement of any of those rights or to Section 3(3)(b) and (c) of the Competition impose such reasonable conditions that may Act, 2002. The CCI finally noted that the be necessary for the protection of those territorial protection granted to the dealer rights. was anti-competitive in nature. Effect of inclusion of territorial restriction as However, while exercising the IPRs, the a restrictive clause in copyright licensing Patent and Copyright holders impose agreements conditions on their licensees that go outside As already discussed at the beginning of this the limits of the rights bestowed on them by topic, according to the clause of territorial law and these same conditions may reduce restriction in an agreement between a competition or essentially eradicate licensor and a licensee, the licensor assigns a competition in the relevant market.129 In particular territory to a specific licensee, many cases, competitors cross-license their which aids the licensee to reserve an patents and allocate territories among exclusive market for him. Agreements, which themselves with an aim to create entry restrict territory, may cause a hindrance in
129 T. RAMAPPA, COMPETITION LAW IN INIDA: 130 Id. POLICY, ISSUES AND DEVELOPMENTS 109 (2 ed. Oxford India Paperbacks 2009). CORPUS JURIS|30
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in intra-brand competition but may enhance According to Section 3(3)(c) of the Indian inter-brand competition. The U.S. Supreme Competition Act, territorial restrictions in Court in Continental TV Inc. v. GTE terms of allocation of geographic area or Sylvania Inc.131 noted that there are many number of customers in the relevant market pro-competitive facets of vertical restraints, shall be presumed to have an AAEC in India, one of which is the promotion of inter-brand and thus, are per se illegal. However, the competition, and thus held that per se effect of Section 3(5) in context of Section illegality of vertical territorial restraints is 3(3)(c) is that the latter will not apply in cases unwarranted. where any IPR owner indulges in anything in the guise of exercise of his right to restraint The anti-competitive concerns of territorial the infringement of any of those rights or restrictions are as follows:132 impose reasonable conditions that may be essential for the protection of the said rights. a. Territorial restrictions will be per se This provision may be treated as a special illegal only when used to fake market provision relating to vertical restraints and allocation or price fixing agreement; are subject to the rule of reason. b. Territorial restrictions enable the operation of hidden cartel arrangements Exclusive Dealing Arrangement to allocate the market among colluding firms; The term “exclusive dealing” elucidates a c. Territorial restriction agreements may vertical arrangement whereby a buyer is also be a straight and easy tool to enable effectually compelled to buy most or all collusion among competing licensors, by products or services from one seller, typically making it simpler to detect, scan and for a fixed period of time. Put simply, an scrutinize downstream violations to exclusive-dealing arrangement refers to a cartel agreements. contract between a manufacturer and a buyer, according to which the buyer is forbidden to purchase the contracted good
131 Continental TV Inc. v. GTE Sylvania Inc., 433 U.S. 132 Alice Pham, Competition Law and Intellectual Property 36 (1977). Rights: Controlling Abuse or Abusing Control?, 1 CUTS INTERNATIONAL, 15 (2008). CORPUS JURIS|31
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in from any other seller or is obligated to take c. Requirements contracts, which obligates all of his needs in the contracted good from buyers to purchase all, or a substantial that manufacturer.133 Therefore, such portion of, their total requirements of agreements involve vertical restrictions specific goods or services from a where the parties are in a buyer-seller particular supplier. relationship. Exclusive dealing agreements, also known as requirements contracts There are many jurisdictions according to between manufacturers and retailers are which exclusive dealing arrangements may, common and generally lawful.134 In other but do not necessarily have to cover 100% of words, an exclusive dealing agreement averts the purchases/sales of the non-dominant a distributor from selling the products of a party to the arrangement. However, as per different manufacturer, and a requirements few other jurisdictions, arrangements will be contract avoids a manufacturer from buying held exclusive only if they cover all purchases inputs from a different supplier. Both the / sales. Thus, there is no universally accepted arrangements are scanned and scrutinized norm of exclusivity.137 through the rule of reason approach, which balances any pro-competitive and Position in India anticompetitive effects.135 Section 3 (1) of the Competition Act, 2002 states that: Examples of exclusive dealing are as follows:136 No enterprise or association of enterprises or person a. Agreements which forbids the buyers to or association of persons shall enter into an agreement purchase products or services from in respect of production, supply, distribution, storage, competitors of the sellers, acquisition or control of goods or provision of services, b. Contracts which prevent distributors which causes or is likely to cause an appreciable from selling the products of different adverse effect on competition within India. manufacturers, and
133 PHILLIP E. AREEDA, & HERBERT HOVENKAMP, 135 Id. ANTITRUST LAW – AN ANALYSIS OF ANTITRUST 136 Supra note 132. PRINCIPLES AND THEIR APPLICATION 1 (4 ed. 2016). 137 Supra note 94. 134 Supra note 94. CORPUS JURIS|32
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Section 3(4) of the Competition Act, 2002 which are indirectly advantageous to the states that: general public:138
Any agreement amongst enterprises or persons at a. In context of buyers, they ensure supply, different stages or levels of the production chain in affords protection against price rise in different markets, in respect of production, supply, future, prevent the expenses and risk of distribution, storage, sale or price of, or trade in goods storage and aid long-term planning on or provision of services, including – the basis of costs. (b) exclusive supply agreement; b. In context of sellers, they make it (c) exclusive distribution agreement; possible to significantly lessen the selling shall be an agreement in contravention of sub-section expenses, give protection against price (1) if such agreement causes or is likely to cause an fluctuations mostly to the new players for appreciable adverse effect on competition in India. whom it is essential to know what capital Explanation: For the purposes of this sub-section – expenditure is justified and offer the (b) “exclusive supply agreement” includes any possibility of a predictable market.139 agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise Section 3 carries exceptions that indicate dealing in any goods other than those of the seller or circumstances in which the provisions of this any other person; Section would not apply. Section 3(5) states (c) “exclusive distribution agreement” includes any that provisions of the Section 3 do not agreement to limit, restrict or withhold the output or propose to confine the right of any IPR supply of any goods or allocate any area or market for owner to restraint the infringement of any of the disposal or sale of the goods. his IPRs or export rights. The right of the IPR owner to safeguard his IPRs cannot be Exclusive supply contracts bound the taken away. In context of IP, exclusive number of buyers to whom a supplier can sell dealing occurs when a licensee is prevented his products. There are a number of from licensing, selling, distributing or using economic advantages attached to exclusive supply agreements (requirements contracts),
138 Supra note 126. 139 Joyce Beverages of New York, Inc. v. Royal Crown Cola Co.,555 F. Supp. 271 (1983). CORPUS JURIS|33
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in competing technologies, through a license.140 barriers to entry, and responsiveness of Exclusive dealing arrangements are assessed supply and demand to changes in the as per the rule of reason analysis approach.141 prices in the relevant market. To conclude whether or not an exclusive dealing arrangement is anti-competitive or is In Shri Achintya Mukherjee v. Loop likely to reduce competition in the relevant Telecom Pvt. Limited & Ors.,144 it was market, two factors must be taken into alleged that the use of a phone to an account:142 exclusively contracted partner in roaming is anti-competitive and violate Sections 3(3) The extent to which the said arrangement and 3(4) of Competition Act, 2002. During promotes the exploitation and development roaming, the choice of the consumers was of the technology of the licensor; the extent limited to only a specific service provider, to which the said arrangement results in anti- due to the exclusive agreement between competitive foreclosure of the exploitation original service provider and the one in the or development, or otherwise constraint roaming area, due to which the consumers competition among competing technologies. were made to pay more for the use of mobile services of the previously selected roaming The possibility that an exclusive dealing partner. Also, their freedom to manually arrangement may have anti-competitive choose a roaming service provider was effects depends on the following factors:143 deactivated due to the electronic manipulation of the software used by the a. Degree of foreclosure in the relevant service provider. In this case, the CCI market; depended upon the license agreement b. Duration of the exclusive dealing according to which the licensee was arrangement; and permitted to enter into an agreement for c. Other characteristics of the input and providing roaming facility. However, the output markets like concentration, same agreement did not offer any maximum
140 AVTAR SINGH, COMPETITION LAW 21 (2012). 144 Shri Achintya Mukherjee v. Loop Telecom Pvt. 141 Id. Limited & Ors., CASE No. MRTP Case No. C- 142 Id. 125/2009/DGIR (22/28) (2011). 143 SRINIVASAN PARTHASARATHY, COMPETITION LAW IN INDIA 85 (4 ed. Wolters Kluwer 2014). CORPUS JURIS|34
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in or minimum limit on the operators to be for four months, the first opposite party opted for roaming service by a particular would act as the ‘preferred beverage mobile service provider. Hence, the CCI held provider’ for the supply of non-alcoholic that said agreement was not in violation of beverages to the second opposite party. The the terms of the license. CCI also observed that due to the presence of several players, the competition was fierce, In Consumer Guidance Society v. Hindustan because the multiplex owners were switching Coca Cola Beverages Pvt. Ltd. and Inox over suppliers sporadically. Leisure Pvt. Ltd.,145 the informant alleged that Hindustan Coca Cola Beverages Pvt. An exclusive distribution agreement refers to an Ltd. (first opposite party), a leading producer agreement between a supplier and a distributor of bottled water and soft drinks in India and wherein the supplier sells his products to only one worldwide, had entered into an agreement distributor, in particular territory and with Inox Leisure Pvt. Ltd. (second opposite simultaneously, the distributor is generally prohibited party), operating numerous multiplexes in from actively selling into other exclusively located various parts of India, for the supply of its territories.146 products at an overblown and exorbitant price, which was starkly different from the Exclusive agreements are void if they cause normal price of the same products in the or are likely to cause an appreciable adverse open market. It was also alleged that effect on competition within India. Exclusive vertically restrictive trade agreements agreements entered into by a dominant adopted by the opposite parties levied unfair undertaking can be held to be an abuse if it costs on the consumers and also stifled causes market foreclosure.147 Such competition, mainly because the second agreements may further lead to market opposite party was vending the product of foreclosure when major input suppliers are the first opposite party only. The CCI tied and if firms willing to buy the particular examined the agreement and found that as product fail to find alternative sources of per the agreement, which was entered into
145 Consumer Guidance Society v. Hindustan Coca 146 MAHER M. DABBAH, EC AND UK COMPETITION Cola Beverages Pvt. Ltd. and Inox Leisure Pvt. Ltd., LAW: COMMENTARY, CASES AND MATERIALS 165 Case No. UTPE-99/2009 & RTPE-16/2009 (23. (CambrIdge 2004). 05.2011 - CCI). 147 Supra note 94. CORPUS JURIS|35
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in supply.148 Nevertheless, there exist many suppliers’ and distributors’ levels.151 Another views about the pro-competitive effects of justification is the fact that when the goods exclusive agreements. It may result in are sold, which implies that the property incentives for exclusive distributors to therein has been transferred to the buyer, concentrate their sale efforts on a particular thereafter, there should be no restriction on brand, eventually leading to enhanced their movement, which also prevents the investments and thereby a greater brand buyer of the product, while disposing of the image.149 Some other pro-competitive effects goods, from offering competition outside the of exclusive agreement comprise of the area allocated.152 following:150 In Manish Singh v. Roger Williams,153 a a. Protection of investments made by the complaint was filed before the CCI in which seller; it was alleged that USP, a not-for-profit b. Prevention of free-riding on the part of organization based in the United States, the buyers, in case of exclusive which was involved in pharmaceutical agreements of buyers; and standard setting, terminated all its c. Prevention of free-riding on investments distributorship contracts with the informant, made by the buyer, in case of exclusive and selected LGC Promochem India Limited agreements of suppliers. as its exclusive authorized distributor for reference material and publication of USP in The possible competition-related risks of India. USP was not allowed to accept direct exclusive distribution are abridged intra- orders from its customers. In this case, the brand competition, and market portioning, CCI observed that every principal has the which may categorically facilitate price right to appoint any person as his discrimination and collusion, both at the distributor/agent, and only because one
148 Supra note 93, at 4. and Creates UndivIded Loyalty, 72 ANTITRUST L.J. 473, 149 ec.europa.eu. 2020. [Online] GUIDELINES ON 481-83 (2007) VERTICAL RESTRAINTS, OFFICE OF FAIR TRADING 151 COMMISSION NOTICE, GUIDELINES ON VERTICAL 161 (12/2004) Available at: RESTRAINTS OJ 161 (2000) C 291/01. https://ec.europa.eu/competition/antitrust/legislatio 152 P. Lugard, Eternal Sunshine on a Spotless Policy: n/guIdelines_vertical_en.pdf (Accessed on 13 Exclusive Dealing under Article 82 EC, 2 EUROPEAN December 2020). COMPETITION JOURNAL, 163 (2006). 150 B. Klein & A.V. Lerner, The Expanded Economics of 153 Manish Singh v. Roger Williams (2010) Free-RIding: How Exclusive Dealing Prevents Free-RIding CORPUS JURIS|36
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in distributor is appointed in place of another, a. PES was proscribed from dealing with does not imply abuse of dominant others’ products and was also asked to (monopoly) position. Thus, there was no limit to the territory allotted to it; violation of Section 4, Competition Act, b. PES was required not to directly or 2002. Also, the CCI disagreed that by means indirectly manufacture, buy, sell, of exclusive distribution agreement, the promote or distribute in its assigned opposite parties had created entry barriers in territory, any product which competes the market. This is so because the products with one or more products of Stryker; of USP were available in the market and and could be procured through its distributor. c. PES was prohibited from appointing any Hence, Section 3(4)(c) was not violated. sub-dealer, except with the prior Through the application of rule of reason, the permission in writing from Stryker CCI found that benefits were accrued to the consumers and there was no delay/shortage The CCI held that the agreement in question in the supply of reference material. Keeping comes within the ambit of Section 3(4) of the this in mind, the CCI concluded that the Competition Act, 2002 as exclusive supply exclusive distribution agreement in question and distribution agreements. However, as per had not caused or was not likely to cause any the investigation undertaken, nothing was appreciable adverse effect on competition in revealed in context of any concern or India. competition issue raised by the competitors of Stryker. In light of these facts, the CCI In A Foundation for Common Cause & held that the facts on record do not provide People Awareness v. PES Installations Pvt. any evidence, which could establish a Ltd.,154 Stryker India Pvt. Ltd appointed PES contravention of Section 3(4) in the said as a non-exclusive dealer. According to the matter. dealership agreement –
154 A Foundation for Common Cause & People Awareness v. PES Installations Pvt. Ltd., Case no. 43 of 2010 (2012) CORPUS JURIS|37
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Effect of inclusion of exclusive dealing manufacturing capacity for existing or new arrangement as a restrictive clause in licensors156. copyright licensing agreements As discussed earlier, exclusive dealing Exclusive supply and distribution agreements arrangements avert licensees from licensing, are per se illegal under Section 3(4) of the selling, distributing, or manufacturing Competition Act in India if they cause or are products, which employ technologies likely to cause AAEC in the relevant market. supplied by competitors of the licensors. They do not always have anti-competitive However, this stance changes when the objectives. exception clause of Section 3(5) comes into effect. In case of exclusive dealing in context Anti-competitive concerns of exclusive of intellectual property, if the competition dealing arrangements:155 authority plans to establish that a certain Restrictions on the ability of the licensee to exclusive dealing arrangement may have anti- deal in competing technologies can be competitive effects, then in that case its analyzed on the basis of the following: assessment will deal with the study of the following factors:157 a. Duration of exclusivity; b. Rationale for restriction; and a. the extent to which the restraint c. Degree of foreclosure caused by encourages the licensees to develop and restriction to rival licensor. market the licensed technology; and b. the extent to which the restraint increases In case the firms entering the exclusive incentives of the licensors to develop or dealing arrangement previously hold a large refine the licensed technology, or share of the relevant product market, the risk otherwise increase competition and of foreclosure may be substantial. It is also enhance output in the relevant market. conditional on the convenience of alternative
155 Alice Pham, Competition Law and Intellectual Property Available at: Rights: Controlling Abuse or Abusing Control?, 1 CUTS http://www.oecd.org/competition/cartels/4837900 INTERNATIONAL, 16 (2008). 6.pdf [Accessed on 13 December 2020] 156 OECD 2020, Information Exchanges Between 157 AVTAR SINGH, COMPETITION LAW 22 (Easter Competitors under Competition Law [Online] Books Company 2012). CORPUS JURIS|38
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Grant-Back the right to use the IP of the licensor may enable the licensee to develop new products, A grant-back is an arrangement under which which can make the licensed technology a licensee agrees to extend to the licensor of obsolete and leave the licensor in backwater IP, the right to use the improvements to the of technology, the boomerang effect.162 licensed technology of the licensee.158 Grant-backs can take the form of assignments, exclusive licenses, or non- Generally, grant-backs involve a grant from exclusive licenses.163 The most obvious effect the licensee of an IP, back to the licensor, of of a grant-back clause in a licensing improvements that the licensee develop agreement is that it may decrease a party’s using the licensor’s IPRs, which can incentive to invest resources to improve ultimately give rise to antitrust concerns.159 technology, mainly because the licensee has Thus, a grant-back clause is a provision in a to grant-back its improved version of the license agreement, requiring a licensee to technology to the licensor for free.164 This license any improvements it develops back to discourages innovation as a result of reduced the licensor, usually with rights to sub- incentive of the licensee to improve the license.160 By including a grant back clause, current technology. the licensee has to assign or license any technology developed in the future to the A grant-back provision is likely to harm or licensor. affect competition only if it suppresses competition.165 Market power and A provision of grant-back affords a means to dominance of the licensor decide how a share risks in the development of new grant-back is treated.166 In case of non- technology for both the licensor and exclusive licensing arrangement, which does licensee.161 However, permitting the licensee not involve any dominant firm, there is slight
158 Supra note 93, Section 5.6 (1995). Nineties, BROOKINGS PAPERS: MICROECONOMICS 323 159 TODD WALLACE ET AL., INTELLECTUAL (1997). PROPERTY AND ANTITRUST LAW 265 (2009) 162 Jay Pil Choi, A Dynamic Analysis of Licensing: The 160 TECHNOLOGY AND IP GLOSSARY [Online] "Boomerang" Effect and Grant-Back Clauses, 43 Available at: InternATIONAL ECONOMIC REVIEW 804, 803-829 http://www.ipglossary.com/glossary/grant-back- (2002) clause/#.WSppcVOGNcw. [Accessed on 13 163 Supra note 85. December 2020] 164 Supra note 94. 161 Richard Gilbert & Carl Shapiro, Antitrust Issues in the 165 Id, at 596. Licensing of Intellectual Property: The Nine No-No's Meet the 166 Id. CORPUS JURIS|39
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in basis167 for any exploitation under Efficiency of Grant-back competition law. In case a dominant firm Non-exclusive grant-backs can offer stresses on exclusivity, the contract can be efficiencies to both the licensor and the used to uphold and boost its dominance by licensee.172 A grant-back can accelerate including control over all the new downstream licensing as it offers a good way innovations in the particular field. to value the licensed IP, that is, as a useful way for the original licensor to get some value The treatment of grant-back under antitrust in the future.173 Besides, a non-exclusive law is also dependent on the type of the grant-back can function as a substitute to intellectual property that is being licensed.168 higher royalty rates in situations of uncertain In case the licensed subject-matter comes nature and value of future improvements.174 within the ambit of Copyright law, any new Non-exclusive grant-back clauses are improvements in context of the copyrighted fundamentally eternally competitive.175 work are primarily within the original copyright itself169. Competitive concerns in context of Grant- back This is so due to the fact that the copyright The principal anti-competitive concern in owner holds the exclusive rights to make context of grant-back is its impending adaptations and derivative works.170 antagonistic effect on innovation.176 An Therefore, licensor gets control over exclusive grant-back, which allows only the improved versions of the copyrighted original licensor to procure the rewards of material from the statute and not merely any future invention, can deter innovation from the license contract. Often, granting because the licensee will get no particulars back to the licensor is not truly a grant, but from the benefits of any future simply an assertion of the basic copyright improvements.177 law.171
167 Id. Antitrust: An Analysis of Antitrust Principles applied to 168 Id. Intellectual Property Law, 25.2-25.10 (Wolters Kluwers 169 Id. 2002). 170 The Copyright Act 1957 § 14, cl. a., sub-clause (vi). 173 Supra note 93. 7 174 Id. 171 Supra note 84. 175 Supra note 91, at 25.2. 172 Herbert Hovenkamp Mark D. Janis, Mark Lemley, 176 L.G. Balfour Co. v. FTC, 442 F.2d 1 (7th Cir. 1971) Christopher R. Leslie, Maichael A. Carrier et al., IP and 177 Id, at 25.3. CORPUS JURIS|40
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
In the case of a non-assertion clause, the Furthermore, under Section 3 of the disincentive to innovate proliferates if the Competition Act, promotion of technical, scope of the provision of grant-back is scientific and economic development by greater than the forward-going license or means of production of distribution of goods lengthier in duration as compared to the or provision of services is also an issue to be license for which the grant-back is dealt with for the determination of conveyed.178 appreciable adverse effect on competition India. Nonetheless, Section 3(5), Grant-backs can also indecorously extend the Competition Act, 2002 excludes the market power of a patentee since the application of restrictions contained in improvements made by the licensees return Section 3 in the following situations- to the original patentee. Eventually, the patentee can use all these developments not a. The right of any person to restrict any only to acquire control of the affected infringement of, or to impose reasonable technology during the lifetime of the original conditions, for the safety of any specific patent, but also for a subsequent time as intellectual or related property rights; and well.179 b. The right of a person to export goods from India, to the extent to which such Position in India agreement relates singularly to the Grant-back could conceivably be brought production, supply and distribution of within the ambit of Section 4(2)(b)(ii), goods or provision of services. Competition Act, 2002 that states: According to Section 140(1)(d) of the Patents There shall be an abuse of dominant position under Act, 1970, in case of patent licenses, exclusive Section 4(1), if an enterprise or a group limits or grant-back is avoided. The same has been restricts technical or scientific development relating to declared “restrictive” and if incorporated in a goods or services to the prejudice of the consumers. license, it will be held void and therefore inoperative.180
178 Id. 180 Supra note 172, at 597. 179 Id. CORPUS JURIS|41
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Effect of inclusion of grant-back as a c. the duration of the grant-back restrictive clause in copyright licensing obligation of the licensee; agreements d. the market power of the parties; According to a grant-back clause in an e. whether the parties are competitors; agreement, a licensee of an intellectual f. the effect of the grant-back on the property settles to encompass the right to use incentive of the parties to innovate; his improved version of the licensed and technology to the licensor. Non-exclusive g. whether dissemination of grant-backs are not anti-competitive. They improvements of the licensed offer a means: technology by the licensee is a. to share the risk between the licensor and promoted by the grant-backs. the licensee; and b. to reward the licensor for helping in It is pertinent to note that there is no undertaking more innovation in the provision in the Indian Competition Act that future in relation to the licensed explicitly deals with grant-back. Nonetheless, technology. grant-back can possibly and feasibly be carried into Section 4(2)(b)(ii), Competition Anti-competitive concerns of grant-back:181 Act, 2002, according to which a firm shall be The anti-competitive consequences of a presumed to abuse its dominant position in grant-back depend on a plethora of factors case it hinders any type of technical or such as: scientific advancement of goods and services, a. whether technology beyond the as against consumer welfare. originally licensed intellectual property is included in the grant- WHETHER IPRS ARE SUBJECT TO back; COMPETITION LAW? b. whether the grant-back is in the form of an assignment, exclusive license, Before commencing a discussion on the non-exclusive license or an option; decisional practice of the CCI in cases
181Alice Pham, Competition Law and Intellectual Property http://www.cuts- Rights: Controlling Abuse or Abusing Control?, 1 CUTS international.org/pdf/CompetitionLaw_IPR.pdf INTERNATIONAL, 17 (2008) [Online] Available at: (Accessed on 13 December 2020) CORPUS JURIS|42
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in presenting antitrust-licensing issues, it would a proprietor of a patent, which is covered by be apposite to address a preliminary question. the Indian Patents Act, 1970. After a long- Are IPRs subject to competition law to begin ranging discussion on the nature of remedies with? This question is extremely significant in that are provided for in the Indian Patents the Indian context as most cases involving Act, 1970 and the Competition Act, 2002, the IPR issues have landed in general courts – Delhi High Court observed that “if there are High Courts and/or Supreme Court – irreconcilable differences between the Patents Act and pursuant to a challenge to the jurisdiction of the Competition Act in so far as anti-abuse CCI for adjudicating such matters. The provisions are concerned, the Patents Act being a provisions of the Act as well as the special Act shall prevail.”183 jurisprudence of the Indian Courts suggests that there is no blanket exemption provided However, no irreconcilable differences to IPRs when it comes to the jurisdiction of between the two statutes were found by the the CCI. Delhi High Court since the remedies provided under the Competition Act for The landmark judgment in this context is in abuse of dominant position were materially Telefonaktiebolaget LM Ericsson v. different from the remedy as available under Competition Commission of India,182 where the Indian Patents Act, 1970. The Delhi High a petition was filed by Ericsson challenging Court also observed that it was apparent that the jurisdiction of the CCI to pass orders in the remedies under the two enactments were cases involving patents, in particular, not mutually exclusive. In other words, the Standard Essential Patents (SEPs). The grant of one was not destructive of the other. assertion made by Ericsson before the Delhi Thus, it was open for a prospective licensee High Court was that the orders passed by the to approach the Controller of Patents, under CCI were without jurisdiction as the CCI the Patents Act, 1970, for grant of lacked jurisdiction to commence any compulsory license in certain cases. The same proceeding in relation to a claim of royalty by
182 Sahithya MuralIdharan, Ericsson v. Micromax – A m/2016/07/13/ericsson-v-micromax-a-kick-start-to- Kick-Start to SEP-FRAND Antitrust Jurisprudence in the-sep-frand-antitrust-jurisprudence-in-india/ India, KLUWER COMPETITION LAW BLOG (Jun. 13, (Accessed on 13 December 2020) 2016) [Online] Available at 183 Id. http://competitionlawblog.kluwercompetitionlaw.co CORPUS JURIS|43
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in would not be inconsistent with the CCI recognized under Section 3(5) of the Act, the passing an appropriate order under the Act. provisions under Section 3(1) to 3(4) of the Act will not be applicable. Therefore, the application of the Act to the cases involving IPRs is not barred at all. This The CCI addressed this in the case of FICCI finding is in sync with and buttressed by the - Multiplex Association of India v. United plain wording of the provisions of the Act in Producers/Distributors Forum (UPDF).184 this regard. Section 3(5) of the Act provides In this case, FICCI alleged that the that Section 3 which prohibits agreements respondent UPDF had issued a notice that have an appreciable adverse effect on instructing all its members not to release any competition will not affect the right of any films to the members of FICCI. The person to “impose reasonable conditions, as may be members of UPDF contended that a feature necessary for protecting any of his rights.” film is the subject matter of copyright under Therefore, an IPR holder cannot impose any the Copyright Act, 1957 which permits the condition as he deems fit. Indeed, the power owner of copyright to exploit such copyright to do so is circumscribed by Section 3(5) of in a manner as they deem fit. Notice was also the Act which provides for general brought by the members of the UPDF to exceptions in case of imposition of provisions contained in Section 3(5) of the reasonable restrictions for protecting Act to claim that the use of non-obstante intellectual property rights conferred under clause excluded such rights from the purview various statutes. Thus, if the licensor, by way of the Act and accordingly, it was asserted of an agreement, has imposed a reasonable that the UPDF members were within their restriction for protecting any of the rights rights to impose reasonable conditions. recognized under any of the statutes
184 FICCI - Multiplex Association of India v. United https://www.cci.gov.in/sites/default/files/FICCIOr Producers/Distributors Forum (UPDF ), Case No. 1 der260511_0.pdf (Accessed on 13 December 2020). of 2009. [Online] Available at CORPUS JURIS|44
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
Looking at India, Competition Act of 2002 arrived after repealing the Monopolies and Restrictive Trade Practices Act. The underlying objective behind creation of the Competition Act was to curb the practices which eliminate competition in the market. Section 3 of the Act deals with anti- competitive practices which exempts IPR from its application. Section 4 deals with abuse of dominant position. India is at a nascent stage to comprehend the interplay between IP and competition law.
According to Section 3(3)(c) of the Indian Competition Act, territorial restrictions in terms of allocation of geographic area or number of customers in the relevant market shall be presumed to have an appreciable adverse effect on competition (AAEC) in India, and thus per se illegal. However, the effect of Section 3(5) in context of Section 3(3)(c) is that the latter will not apply in cases where any intellectual property right owner indulges in anything in the guise of exercise of his right to restraint the infringement of any of those rights or impose reasonable conditions that may be essential for the protection of the said rights. This provision may be treated as a special provision relating to vertical restraints and are subject to the rule of reason.
Exclusive supply and distribution agreements are per se illegal u/s 3(4) of the Competition Act in India if they cause or are likely to cause AAEC in the relevant market. However, this stance changes when the exception clause of Section 3(5) comes into effect. In case of exclusive dealing in context of intellectual property, if the competition authority plans to establish that a certain exclusive dealing arrangement may have anti-competitive effects, then in that case its assessment will deal with the study of the following factors:185 a. the extent to which the restraint encourages the licensees to develop and market the licensed technology; and b. the extent to which the restraint increases incentives of the licensors to develop or refine the licensed technology, or otherwise increase competition and enhance output in the relevant market.
185 United States v. Terminal Railroad Association of St. Louis,224 U.S. 383 (1912). CORPUS JURIS|45
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
As a condition of license, numerous firms demand from their licensee to grant back any improvement on the subject-matter to them. The utmost apparent consequence of a grant-back clause lies in the fact that it tends to bring down the incentive of a party to invest resources to improve the technology, because the licensee has to grant back his improvement to the licensor for free. This fact dispirits licensees to invest in the process of improving the concerned subject- matter, the outcome of which is reduced innovation that adversely affects consumer welfare.
There is no provision in the Indian Competition Act that explicitly deals with grant-back. Nonetheless, grant-back can possibly and feasibly be carried into Section 4(2)(b)(ii), Competition Act, 2002, according to which a firm shall be presumed to abuse its dominant position in case it hinders any type of technical or scientific advancement of goods and services, as against consumer welfare.
To enable innovators to be acknowledged for their contributions and to encourage collaboration and creativity in the sense of IP rights’ time of exclusivity, licensing is a fundamental tool to spread creativity. Licensing agreements, on the other hand, may also have anti-competitive effects, such as cartelization facilitation or competitive foreclosure. The biggest problem for competitors is whether a particular arrangement is likely to benefit or hurt competition. In either case, there is a growing international consensus that IP licensing may have a competitive impact. With the exception of hard-core collusive conduct, the finding that an IP licensing arrangement infringes competition will typically require evidence of anticompetitive harm following an effects-based assessment that will need to the balance pro and anticompetitive effects of individual licensing practices.
CORPUS JURIS|46
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ARTIFICIAL INTELLIGENCE
-SEHAJ SARIN*
ABSTRACT
Artificial Intelligence, also called as the machine intelligence, is defined as the intelligence of machines, different from the intelligence as present in animals and human beings. Artificial Intelligence is written as AI commonly and it uses various computer programs, sophisticated statistics and algorithms to solve various problems. Moreover, artificial intelligence is not only limited to the field of science and fiction but is also making its way in different fields such as law, agricultural section, aviation sector and much more. It is in filtering in our world gradually and also focuses to transform different aspects of our lives. As the world is shifting more to the phase of digitalization, our dependence on AI will be increased. However, different people have different views regarding this development of AI. Some people are of the view that there is a need to monitor and control AI or else the robots may lead the world in future. Viewing the positive side, others think that the quality of life of humans will improve due to this development. Thus, there is a long list of ethical issues and challenges faced by AI. Especially in a country like India, where ethics hold so much of importance, AI needs to work hard, and people need to understand about this positive side of development. This research paper focuses on the above-mentioned aspects only. It provides an overview of the emergence of artificial intelligence and the various problems faced by it. The main aim of the paper is to critically analyzeregulatory policy considerations for AI and Law as well as explorespossible hurdles and challenges in order to create a safe transition to an era characterized by AI.
KEYWORDS: Artificial Intelligence, Ethics, Trust, Bias, Discriminate, Policy Considerations, AI Guidelines.
* Student, 2nd Year, BA LLB, The Law School, Jammu University. CORPUS JURIS|47
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION AI generally is subsumed by approaches including neural networks, machine learning, “Artificial Intelligence can enable humans to deep learning, etc. There can be more than focus on parts of their role that add the 100 layers in these learning algorithms.188 It is most value”.186 also loosely defined as a computerized system that exhibits behavior that is We live in a time when robots clean our commonly thought of as requiring houses, drive our vehicles, disable bombs, intelligence.189Artificial Intelligence, as the provide prosthetic limbs, support surgical name suggests, is the intelligence that is not procedures, manufacture products, entertain, demonstrated by humans or animals but by teach and surprise us. Just as smartphones machines. It is a whole or a complete system and social media are offering connectivity which can interpret the external data beyond anything we imagined, robots are correctly, to learn various things from that beginning to offer physical capabilities and particular data in solving problems and artificial intelligence (AI), cognitive abilities achieving certain goals. It is so surprising that beyond our expectations. Together, these how can a machine solve different technologies could be harnessed to help problems190, like a human being, it solves solve important challenges, such as ageing those problems using its intelligence. If a societies, environmental threats and global machine can solve various problems using its conflict.187 intelligence, it can also have a mind like human beings.
186 True Anthem, How Artificial Intelligence can make Executive Office of the PresIdent National Science publishing more profitable, 1 TrueAnthem Technology Council Committee on Technology, WhitePaper,(Dec. 13,2020, 5:15 P.M.) Preparing for the Future of Artificial Intelligence,Obama White http://www.trueanthem.com/wp- House The National Science and Technology Council, content/uploads/2017/05/True_Anthem_Whitepap (Dec. 13, 2020, 6:00 P.M.) er_V1.pdf. https://obamawhitehouse.archives.gov/sites/default 187 Vanessa Evers, Of Robots and Humans, UNESCO, /files/whitehouse_files/microsites/ostp/NSTC/pre (Dec.13,2020, 5:20 P.M.) paring_for_the_future_of_ai.pdf. https://en.unesco.org/courier/2018-3/robots-and- 190Elizabeth Broadbent, Interactions With Robots: The humans. Truths We Reveal About Ourselves, 627-652 Annual 188 Paul Shapshak, Artificial Intelligence and Brain, US Review of Psychology, (Dec. 13, 2020, 6:10 P.M.) National Library of Medicine National Institute of https://www.annualreviews.org/doi/10.1146/annur Health,(Dec. 13,2020, 5:45 ev-psych-010416-043958. P.M.)https://www.ncbi.nlm.nih.gov/pmc/articles/P MC5818638/. CORPUS JURIS|48
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
HISTORY This period is known as the ‘Artificial Intelligence Winter’. But the field was then Coming to its history, this marvelous idea of revived in the 1980s when the British bringing the inanimate objects to life as government decided to fund in this field. intelligent beings were popular. There were After that, this field experienced a decline myths about robots as well. Human thinking from the year 1987 to 1993. The research was was described as a symbolic system by then again picked up and then, in 1997, the classical philosophers. However, the field of first computer to beat a chess champion was AI was formally founded in 1956191 at a the IBM’s Deep Blue194 when it defeated the conference which was held in Dartmouth grandmaster of chess from Russia, Garry College, situated in Hanover, New Kasparov. Hampshire. In the year 2011, a talking computer named The term ‘Artificial Intelligence’ was first as ‘chatbot’ Eugene Goostman195 also coined in there. The first AI program was captured headlines for tricking the Judges designed by Newell and Simon in the year into thinking he was real skin and blood 1955. The father of Artificial Intelligence is human during a Turing test, which was John McCarty192 and he is the one who actually a competition developed by the coined the term AI. However, achieving AI British mathematician and computer scientist was not an easy task as there were several Alan Turing in the year 1950. reports of criticism for AI and thus, the interest and Government funding for the It was considered as a way to assess whether field of AI was dropped off in a period from a machine is intelligent, but the 1974-80193. accomplishment was controversial as the AI experts mentioned that only a third of the Judges were fooled.
191 Tanya Lewis, A Brief History of Artificial Intelligence, 192 Peart Andy, Homage to John McCarthy, the Father of Live Science, (Dec. 13,2020, 6:20 P.M.) Artificial Intelligence (AI), Artificial Solutions, (Dec 13, https://www.livescience.com/49007-history-of- 2020, 6:30 P.M.) https://www.artificial- artificial- solutions.com/blog/homage-to-john-mccarthy-the- intelligence.html#:~:text=The%20beginnings%20of father-of-artificial-intelligence. %20modern%20AI,%22artificial%20intelligence%22 193 Supra Note 191. %20was%20coined. 194 Ibid. 195 Ibid. CORPUS JURIS|49
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ETHICAL QUANDARIES OR ISSUES IN 2016198, the Teka Microsoft’s AI chatbot, Tay ARTIFICIAL INTELLIGENCE was released on Twitter and due to the information provided to it by the other “Our Intelligence is what makes us human and AI Twitter users, it learned and spews racist slurs is an extension of that quality” and Nazi propaganda and then, it was shut - Yann Le Cun Professor, New York down by the Microsoft Company. AI’s have University196 the software that writes its updates and There are a number of ethical considerations renews itself. There was an incident with in the field of AI. Here, we will discuss some Tallon, a robot. Its computer gun was of the ethical questions which surround AI in jammed and then, when opened, it fired different fields like medicine, military, uncontrollably and caused an explosion of defense, law enforcement, data privacy, etc. killing around 9 people and wounding 14 Firstly, comes the issue of job loss and the more199. This further proved that intelligent inequality in wealth. This is one of the machines could make mistakes. Then the primary concerns that many people have with question arises of AI going rogue or creating AI. The report given by the Mc Kinsey unintended consequences from its action. Global Institute, mentioned that about 800 Thinkers such as Stephen Hawking have million people will lose their jobs to AI warned about the potential dangers of driven to robots by the year 2030197. We artificial intelligence, and this has sparked cannot consider AI as perfect. It is prone to public discussion.200 In the movies like make mistakes as well. There is an incident Terminator201, it is shown that an AI which supports this sentence, in the year computer became self- aware and decided
196 Meruja Selvamanikkam, Artificial Intelligence Through 7/07/27/frontiers-in-robotics-and-ai-empowering- My lens, Medium, (Dec 13, 2020, 6:30 P.M.) robots-for-ethical- https://becominghuman.ai/artificial-intelligence- behavior/amp/?usqp=mq331AQHKAFQArABIA% through-my-lens-ada2a2307107. 3D%3D&_js_v=0.1#aoh=16078718958231&ref 197 Kambria, The 7 Most Pressing Ethical Issues in Artificial errer=https%3A%2F%2Fwww.google.com&_tf Intelligence, (Dec. 13,2020, 6:40 P.M.) =From%20%251%24s&share=https%3A%2F% https://kambria.io/blog/the-7-most-pressing- 2Fblog.frontiersin.org%2F2017%2F07%2F27%2Ffr ethical-issues-in-artificial-intelligence/. ontiers-in-robotics-and-ai-empowering-robots-for- 198 Ibid. ethical-behavior%2F 199 Ibid. 201 Supra note 197. 200 Frontiers Communication, Empowering Robots for Ethical Behavior, Frontier (Dec. 13, 2020, 6:55 P.M.) https://blog-frontiersin- org.cdn.ampproject.org/v/s/blog.frontiersin.org/201 CORPUS JURIS|50
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in that he does not want any human control Also, the AI systems are vulnerable to errors anymore. However, the AI technology of and biases as introduced by their human today is not that much capable of achieving makers. The data which is used to train these that extremely dangerous feat of self- systems may have biases. There are many awareness but who knows about the future incidents regarding this. The facial algorithms supercomputers. that were made by IBM, Microsoft and Menguii, all had biases when they detected Questions like What if the AI’s become people’s gender204. smarter than humans? And then try to control our world? Will the AI’s computer They were able to detect the gender of white make humans obsolete? Technological men more correctly and accurately than the singularity is termed as the point where the men of darker skin tone. Another example of technology surpasses human intelligence. this biasness of AI comes from the Advancement of AI sounds scary when the Amazon.com’s termination which hired and thought of human extinction comes in mind. recruited male candidates over the female. Some people also believe that if the pace of The reason being the system of Amazon was technological innovations remains the same, trained with the data which was collected human era will come to an end by 2030.202 over a 10- year period which came mostly from the male candidates. The ethical issues Another interesting ethical question which that come with AI can be considered as comes to mind is how can we rank the robots complex. Even if we use our best efforts, it in the society? Should we grant them the may be possible for AI systems to be rights as the rights granted to human beings immoral. or animals? ‘Roboethics’ has many issues and this is one of the primary issues. In 2017, the ARTIFICIAL INTELLIGENCE AND TRUST Hanson Robotics humanoid robot, Sophia was granted citizenship in Saudi Arabia203. “AI can be used for social good. But it can also be used for other types of social impact in which one
202 Ibid.. Verge, (Dec. 13, 2020, 7:00 P.M.) 203 Ibid. https://www.theverge.com/2019/1/25/18197137/a 204 James Vincent, Gender and racial bias found in mazon-rekognition-facial-recognition-bias-race- Amazon’s facial recognition technology (again), The gender. CORPUS JURIS|51
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in man’s good is another man’s evil. We must remain these things in mind, many experts have trust aware of that” issues with AI. - James Handler205 However, trustworthy AI can be developed The main question which arises here, is, how by considering some factors. Firstly, comes we can build a trustworthy AI system. Super the explain ability, as many users may not intelligent systems of AI may pose a understand why AI made a specific decision significant threat to the human race in the and can doubt its accuracy. Therefore, AI near future. AI has untold potential. Thus, systems must be made more transparent. there is a great difficulty to build a Second come the machine learning integrity trustworthy relationship with the systems of as with this, the developers can make sure AI. Experts also suggested that by the year that these systems are working as they are 2045206, AI robots will be more intelligent intended to and developers can also set up than humans. These robots will develop certain limitations. Thirdly, conscious behavioral and cognitive intelligence and may development is another important factor. capable of having morals. Then, they can The makers need to ensure that AI systems understand the difference between right and benefit humans and for this, they need to get wrong and that too by their own definition. aligned with the human values and principles. Next come the reproducibility factor, as it However, the systems of AI are vulnerable to will ensure that every outcome or result unintentional biasness which is a great which is generated by an AI system can be problem. The data used for training these AI reproduced. The provenance of every robots, if has any human bias, the AI systems outcome must be maintained for producing will also be biased. For instance, the AI bias reproducible AI systems. To build a may discriminate against people of specific trustworthy AI system, developers need to genders, races or nationalities. Keeping all focus on generating reproducible outcomes. Also, they will help them to identify
205 IBM, Building trust in AI, (Dec. 13, 2020,7:25 P.M.) 206 Naveen Joshi, How Can We Build Trustworthy AI, https://www.ibm.com/watson/advantage- Forbes, (Dec. 13, 2020, 8;00 P.M.) reports/future-of-artificial-intelligence/building- https://www.forbes.com/sites/cognitiveworld/2019 trust-in-ai.html. /07/30/how-we-can-build-trustworthy- ai/?sh=3f6b94d5e39c. CORPUS JURIS|52
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in inaccuracies. And last but not the least, 3. The data and the algorithms used comes the regulations. The European Union must be transparent. 207has developed ethics guidelines for 4. Unintentional biases must be avoided building trustworthy AI. These guidelines when developing the applications of will help the developers in building systems these systems. of AI that are ethical, lawful and robust. The 5. The systems of AI must not cause guidelines are as: any harm to the environment or the living beings. 1. These systems of AI are built by 6. Also, the Government must develop human beings and thus, controlled by the regulations for designing a human beings as well. trustworthy AI. 2. The systems of AI must be safe and secure, they must not violate the privacy of the user.
207 Ibid. CORPUS JURIS|53
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
“The coming era of AI will not be the era of war, but the era of deep compassion, non-violence and love”.208 - Amit Ray
Artificial Intelligence systems must be built to empower the humans and should also be secure so that, they don’t violate any privacy of the user. The algorithms and data used in AI should be transparent. Artificial Intelligence is the intelligence of machines which was made by man for the betterment of the human race. We need to ensure that this works only for the betterment of the human race and not for its destruction. By following all the guidelines, we will be able to build a trustworthy AI system. Effective regulation of technologies such as AI requires agencies to have in-house technical expertise to help guide regulatory decision-making. The need for senior-level expert participation exists at regulating departments and agencies, and at all stages of the regulatory process209 One area of great optimism about AI and machine learning is their potential to improve people’s lives by helping to solve some of the world’s greatest challenges and inefficiencies.210 Artificial Intelligence is for the betterment of human race, it will prove beneficial in every field. Legal work will become more efficient and methodical. By using artificial intelligence in the field of law, lawyers will be able to do their task more efficiently, effectively and faster.
208 (GOOD READS, 2020) 209https://obamawhitehouse.archives.gov/sites/default/files/whitehouse_files/microsites/ostp/NSTC/preparing_f or_the_future_of_ai.pdf 210https://obamawhitehouse.archives.gov/sites/default/files/whitehouse_files/microsites/ostp/NSTC/preparing_f or_the_future_of_ai.pdfhttps://obamawhitehouse.archives.gov/sites/default/files/whitehouse_files/microsites/ost p/NSTC/preparing_for_the_future_of_ai.pdf CORPUS JURIS|54
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ASSESSING THE CURTAILMENT OF ARTICLE 19 (1) (G) AMIDST PANDEMIC FOR THE GREATER GOOD AND ITS RELATED CONSEQUENCES
-GAYATRI BATRA*
ABSTRACT
This article brings about various perspectives on the evaluation of Article 19 (1) (g) in terms of the noticeable restraints amidst the Coronavirus pandemic. The author has attempted to grasp the reader’s attention by writing on a topic which is highly practical as well as debatable in today’s world. The overall impact of this global health crisis has acted as a setback on our economy. In addition to this, it has also had detrimental implications on the very fabric of our fundamental rights. Article 19 (1) (g) is established in relation to the principles of equality and liberty. It is imperative to understand that this right affects all spheres and sectors of society, be it primary or tertiary. Therefore, the essence of this topic is based on a logical assessment of the restrictions imposed by the government; it’s advantages and disadvantages
KEYWORDS: Coronavirus, Article 19, Collectivism, Employment, Relief Initiatives.
* Student, 3rd Year, B.A. LL.B., Christ (Deemed to be) University. CORPUS JURIS|55
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION SCOPE OF ARTICLE 19 (1) (G)
The Coronavirus outbreak has impacted Article 19 (1) (g) is a broad fundamental our livelihood as a whole. It has created a right. The analyzation of this right brings psychological, social, and economical us to certain key features which are disruption all over the world. This virus mentioned in the course of this paragraph. has majorly had an unsettling effect on the Firstly, the right to carry on any business world’s economy. Small businesses and which does not fall under the ambit of start-ups have suffered tremendous something which is prohibited by law or is ramifications. The aviation sector and considered as an illegal activity is one of hotel industries have faced enormous the most important interpretations from losses. Article 19 (1) (g). Secondly, any business activity which disrupts public peace and The Indian Constitution guarantees us interest is not permissible by law. Thirdly, with the fundamental right of practicing it is clear that any fundamental right is any profession, or carry on any always enforceable against the state and occupation, trade or business under not imposed against a particular person. Article 19(1) (g).211 Article 19(6) explains that the state can impose restrictions in Henceforth, the freedom to practice any case where public order, morality or profession or carry on any occupation, health seems necessary. There is a twofold trade or business comes with a situation which is created due to this. On corresponding duty. In simple words, an one hand, there is a twofold situation individual must not violate any existing which is created due to this. On one hand, statutory law of the country to avail this the government has to consider the safety right. Article 19 (1) (g) cannot be taken of the people which results in restricting away by the government per se, although our freedom. On the other hand, there are reasonable restrictions can be imposed. major consequences when it comes to the deteriorating condition of the economy of our country.
211 INDIA CONST. art 19 (1) (g). CORPUS JURIS|56
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
LIMITATIONS OF A. 19(1)(G) concerns, there was a ban on mechanical fishing nets. In the case of Rajneesh Kapoor Restrictions are basic limitations; a limit to v. Union of India213 , a petition was filed on one’s freedom. Although, keeping in mind the use of helmets and how it may be national interest and public health (as dangerous. The court held otherwise and stated above), some restrictions can be said that wearing of helmets does not imposed. There are two types of contradict the right to move freely. restrictions. The first one is reasonable restrictions. The term “reasonable” is The above judgments point out a cause extremely broad and hence the test of which is both, fair and just. Hence, they reasonability exhibits some kind of classify as a reasonable restriction. Both of ambiguity. However, when such these decisions are analogous to the literal limitations are imposed, there is a meaning of Article 19(6) of the Indian reasoning behind it. Mere irrationality or Constitution. illogical reasons cannot be defined as reasonable restrictions. The second type is unreasonable restrictions. These limitations are imposed In the case of State of Kerala v. Joseph on a person or general public for the Antony212, the court held that due to prohibition of a certain type of trade or indiscriminate fishing in the territorial business without any proper objective. water there are huge consequences. Firstly, a huge number of poor fishermen For better clarity and understanding of the were stolen from their livelihood as they aforementioned concept, the case of used to be left with negligible quantity of Chintaman Rao v. State of M.P214 has been fish. Secondly, the fish stock was explained. In this case, the Central depleting rampantly which further Provinces and Berar Regulation of prevented the breeding of fish. Therefore, Manufacture of Bidis (Agricultural public interest being one of the major Purposes) Act 1948 was deliberated upon
212 State of Kerala v. Joseph Antony, (1994), AIR 721, 214 Chintaman Rao v. State of M.P, (1950), AIR 118, 1994 SCC (1) 301. 1950 SCR 759. 213 Rajneesh Kapoor v. Union of India, (2007), AIR 2007 MP 204. CORPUS JURIS|57
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
and questioned. This legislation laid down relation to the recent news, it has been that, during the agricultural season, the observed that this fund does not come manufacturing of beedi is shall be under the public domain and RTI prohibited. The court did not contemplate applications were also rejected by the through the repercussions and Prime Minister’s Office. Nevertheless, the consequences with their decision. This government is obligated to implement all meant that people who earned a livelihood types of safety measures and allocate through this profession had nowhere else resources efficiently. to go and were compelled to follow the courts orders. Fundamental rights are guaranteed to us and require a higher degree of protection COLLECTIVISM OVER INDIVIDUALISM from government encroachment.216 They are basic human rights that each and every The government has certain duties citizen can hold. towards the people of the country. They owe us in terms of keeping us safe and WEIGHING THE PROS AND CONS promoting the general welfare in return of our duly and timely paid taxes. Advantages: It may not seem like it, but the curtailment Article 267 of the Indian constitution lays of Article 19 (1) (g) does have a few down a contingency fund allocation in advantages. India’s annual budget which currently stands at Rupees 500 Crore215. In addition We can avoid a huge number of people to that, we also have the Prime Minister from getting out of their homes on a daily National Relief fund and the newly basis. With less people on the roads, there launched Prime Minister Care fund for are accompanying favorable outcomes. donation purposes only. However, the There are barely any cars on the road and latter is highly questionable in nature. In a huge effect in terms of electricity
215Key to budget documents 2019-2020, 216 Fundamental Right, Legal Information Institute, https://library.iima.ac.in/public/Union_Budget_201 https://www.law.cornell.edu/wex/fundamental_righ 9_20.pdf. t. CORPUS JURIS|58
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
consumption can be noticed. All these bread winners of their family. These factors seem to be minor but actually have workers are stuck in cities without a major role. employment. This resulted in a miserable situation where they could neither go back Further, when workplaces and industries to their hometowns nor could earn any cease to operate, there is automatically a money. The government imposed strict major difference in the pollution level. restrictions without a proper plan of Years of negligent behavior towards action and an inclusive strategy. The mother nature has led us to a situation recent incidents of mass suicides across where the environment is healing itself. the country due to the strict lockdown have been extremely disturbing. On one hand, our environment is becoming cleaner, pollution free and The restrictions imposed are violating more sustainable for the future. On the their right to work and earn the meagre other hand, the number of positive cases amount on which their entire livelihood is in the country tend to remain stagnant. based on. This has resulted in them being Although, with the recent relaxations more vulnerable. The daily wage earners, given by the government as well as lack of laborers and migrant workers fall a prey to facilities, the contrary has been observed. corruption whilst the government claims they did everything in their capacity. Disadvantages: Secondly, Coronavirus has crippled the India’s economy has had a huge setback tourism sector as a whole. The aviation these past few months. The nationwide and hotel industry are the worst hit. lockdown took a huge toll on the service People have either been stranded in a sector as a whole. different country or a different state. Flights were not operating till the second Firstly, there were backlashes observed phase which led to tremendous losses and from the migrant workers. The migrant revenue reduction. In order to spur the workers comprise largely of daily wage demands in hotels and flights, these earners. Most of the time, they are single industries will have to come up with
CORPUS JURIS|59
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
incentives which in turn does not help have proven to be deterrent when it them make profits. It is predicted, that at comes to commercial activities. The least for the next couple of months, there Covid-19 pandemic is treated a force are going to be constant layoffs in this majeure event. This has enabled many sector as well. enterprises or industries to claim for the non-performance of certain contractual Thirdly, India’s position is ranked third as duties. This clause safeguards companies the world’s largest start-up ecosystem. from being sued, however, the wrongful Small businesses and start-ups generate a usage will lead to something exactly lot of employment.217 Now, due to this, contrary. Further, due to this, there will be new small businesses and start-ups are a huge gap when a retail company facing difficulties. They are unable to contracts with a manufacturing company survive in such a harsh and disrupted (if manufacturers wrongfully use force economy. majeure).
Lastly, cinema halls, gyms and malls are INITIATIVES BY THE GOVERNMENT either shutting down their operations or are firing employees rampantly. Huge The Finance Minister, Nirmala brands have declared bankruptcy which Sitharaman, announced about fifteen adds to the unemployment rate in our COVID-19 relief measures earlier this country. year. Out of these, about six of them were only with respect to bringing those micro, AN UNJUSTIFIED USE OF FORCE small and medium enterprises which were MAJEURE worst hit during the lockdown.
In unprecedented times like these, the The aim of the central government was to normal performance of contractual duties make our Ministry of Micro, Small & has been majorly affected. Lockdowns Medium Enterprises self-independent and
217 PTI, Over 1,300 startups added in 2019, over 8,900 biz/startups/newsbuzz/over-1300-startups-added- tech-startups in India now: Nasscom, Economic times in-2019-over-8900-tech-startups-in-india-now- (Nov 4, 2019), nasscom/articleshow/71925791.cms. https://economictimes.indiatimes.com/small- CORPUS JURIS|60
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
self-sufficient in terms of finances. WHAT DO THE NEXT COUPLE OF YEARS LOOK LIKE? The relief fund was about ten percent of India’s whole GDP. A 20 lack crore The situation currently seems never- stimulus package was something which ending and vicious. The cases are these small businesses were thriving to continuously rising. At the economic get. In fact, certain industries were literally front, employment opportunities are clamoring on that fund. predicted to be feeble at least for the next year or so. With people losing jobs on a All the schemes could have been availed daily basis, it is doubtful that our GDP till the end of October 2020 which gave rate will increase in the near future. some of these enterprises ample of time to recover their businesses and regenerate By 24 April the unemployment rate had profits. However, there is still a lot of increased nearly 19% within a month, ambiguity with regard to the execution reaching 26% unemployment across and effectiveness of the relief fund. India, according to the 'Centre for Monitoring Indian Economy'.218 Working According to the author, there are two in cinema halls, malls, gyms, hotels and schemes which were extremely rational in flights are quite risky due to health risks nature. Firstly, 45 days after the scheme and job security. was initiated, the government had promised to the Ministry of Micro, Small RECOMMENDATIONS & Medium Enterprises to release all pending payments or dues. Secondly, the • We need to work on better employment businesses which have visible viability and schemes to safeguard the future of the potential with respect to the future of the country. Moreover, these schemes have to country, those enterprises will be given a be implemented in pragmatically and boost in terms of an equity infusion. efficiently. In brief, execution is as vital as formulation.
218 Mahesh Vyas, Unemployment rate in India, Centre https://unemploymentinindia.cmie.com/kommon/b for Monitoring Indian economy, Apr 21, 2020, in/sr.php?kall=wtabnav&tab=4080. CORPUS JURIS|61
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
• The emergence of one of the most Vaishno Devi) and in turn this can be significant labor crisis was noticed in the diverted to a much more important aspect lockdown period despite the release of the which is economic stability. relief package. Hence, complete clarity • The usage of existing resources like health shall be given to the public with respect to supplies, donations etc. should be the apportionment or assignment of distributed in such a way that the worst- funds. hit section of the population is given • Things like mass religious gatherings can primary importance. be avoided (RathYathra and opening of
CORPUS JURIS|62
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
After weighing the impact of the pros and cons due to the pandemic the following conclusion can be derived.
The impact of nationwide lockdowns which led to a blanket restriction on Article 19 (1) (g) resulted in victimization of a huge number of people. The fear of this pandemic has made the government take actions of an extreme nature without considering the vast number of factors. In fact, there is no doubt that a nationwide lockdown was a necessity, but blanket restrictions and almost no relaxations were the two main aspects which attracted retaliation from the public.
At the cost of safeguarding the health of our huge population, we as a country have failed when it comes to the mass destruction of livelihood which was caused since the announcement of the very first lockdown. Henceforth, in the author’s opinion, the imposition of state lockdowns is not a solution. Proper precautions and the utilization of the PM Care Fund at the right places with full transparency is the need of the hour.
CORPUS JURIS|63
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
BUILDING A DEMOCRACY: TRACING THE HISTORICAL DEVELOPMENT OF DEMOCRACY IN INDIA WITH SPECIAL REFERENCE TO MULTI- PARTY SYSTEM
-AYUSHI KUSHWAHA*
ABSTRACT
India is one of the most popular democracies in the world and is known for its remarkably large electorate base. Its representative democracy has been a result of years of oppression perpetrated by colonial masters and regional kingly masters. Accountability is the essence of “Indian’ democracy that works in alignment with the idea of ensuring that political forces are answerable for every action they undertake. In a democracy as diverse as ours, our forefathers found a multi-party system inseparable to adequate representation. However, multi-party system in India has had its own course of development and is said to have gained prominence only in the late 20th century. Thus, the purpose of this article is to highlight the development of democracy in India through a multi-party system of representation.
KEYWORDS: Democracy, Representative, Governance, Multi-party System, Politics.
* Assistant Professor of Law, Amity Law School Lucknow, Amity University. CORPUS JURIS|64
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION TO DEMOCRACY democracies or showed elements of both autocracy and democracy.220 So, it is natural When the former President of the United to wonder about the reasons which make States of America, the late Abraham Lincoln, democracies so popular among countries and pronounced the historic words defining what their people. modern democracy was to him, the world was still embroiled in crossfire between Modern democracies emerged as a imperialism and liberation. We have now consequence of economic, political and become accustomed to understanding social revolutions which had been fanning a democracy as emanating from the will of the storm of change in many countries for people, but we may question why democracy centuries. Historically, revolutions have is still envisioned as a sacrosanct state of usually occurred to overthrow the existing governance. Today, you will notice that most regime and effectuate a radical countries in the world have some or the other transformation in the institutions of element of democracy embedded in their governance and society. A revolution may governance systems. Despite many concerns not necessarily have a positive impact, but as regarding the future of democracy globally, far as development of democracies is studies show that there is solid support to concerned, the world owes too much to democratic systems of governance based on revolutions. It was the struggle of men and a survey which the acclaimed Pew Research women alike to fight for the realization and Center conducted in 38 countries in 2017.219 enforcement of their rights, which were This research also shows that by the end of being trampled upon by existing 2016, there were about six in ten governments or monarchist regimes. For governments which were running as example, the French Revolution overthrew democracies; that out of 167 countries, only the aristocratic regime and refashioned the 21 were full autocracies, and rest were either French society completely; the American
219 Drew Desilver, Nearly Six-In-Ten Countries Are Now 220 Richard Wike, Kate Simmons and Janell Fetterolf, Democracies, Pew Research Center, 2017 (Sep. 20, Support For Democracy High Around The World , Pew 2020), https://www.pewresearch.org/fact- Research Center's Global Attitudes Project, 2017 ( tank/2017/12/06/despite-concerns-about-global- Sep. 20, 2020), democracy-nearly-six-in-ten-countries-are-now- http://www.pewglobal.org/2017/10/16/globally- democratic.html. broad-support-for-representative-and-direct- democracy.html. CORPUS JURIS|65
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Revolution was fought for protecting the and respect for public interest. While natural rights of mankind. Our own country democracies usually share ideals and was involved in a longstanding struggle to principles, they may take up varying forms. protect her identity, liberate its people from All the forms of democracies are not strictly the shackles of imperialism, and have them demarcated, yet they are substantially decide where the country should head. different: Direct Democracy envisages the direct participation of citizens in the When the Greeks first used the term governance of the country; Representative or ‘democracy’ or ‘dēmokratía’ in the 5th century Liberal Democracy delegates sovereignty to B.C., they meant to use it to refer to the then government whose members are elected existing political systems in Athens and other through elections223 and can assume the city-states.221 It literally stood for “rule by forms of Parliamentary or Presidential form people”; though until modern democracies of government224 ; and Pluralist Democracy introduced the concept of enfranchisement, has several groups which compete with one much of the governance was in the hands of another to influence governance.225 the elite. Centuries have passed, but there remains no unanimity with respect to the INDIA AND HER DEMOCRACY exact definition of democracy. It is, however, commonly agreed upon that democracy aims India is a peculiar country which operates on to achieve certain goals such as freedom, multiple levels. It is an amalgamation of equality and dignity of an individual which myriad religions, cultures, languages, and are derived from the notions of natural races coupled with a mammoth population. justice.222 Democracies across the world The influence of socio-cultural and religious generally share many commonalities such as norms is deep and is responsible for the separation of power, constitutionally palpable division between rich and poor and guaranteed fundamental rights, adult suffrage literate and illiterate.226 It carries on its
221Nigel Wilson, Encyclopedia Of Ancient Greece (Taylor 1.amazonaws.com/alaindebenoist/pdf/democracy_r and Francis 2006). epresentative_and_participatory.pdf.html. 222 Ibid. 224Ibid. 223Alain De Benoist, DEMOCRACY: 225Infra note 236. REPRESENTATIVE AND PARTICIPATORY 226The Story of Indian Democracy, NCERT, (Sep. 20, (2010) 8 The OccIdental Quarterly (Sep. 20, 2020), 2020), https://s3-eu-west- http://www.ncert.nic.in/ncerts/l/lesy203.pdf.html. CORPUS JURIS|66
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in shoulder’s centuries-old history mired with unprecedented levels of population would caste-based discrimination and poverty make it absolutely impractical to leave policy which still continue to affect the lives of a decisions in the hands of the public. Due to billion people. Moreover, the burgeoning the non-viability of direct democracy, population has resulted in rigid competition representative democracy remains the only for the resources of the State, which poses good alternative. severe challenges to governance. Hence, one can imagine the complex circumstances One of the most contentious questions against which the Constituent Assembly had which the Constituent Assembly had to deal to arrive at a decision on the type of with during the making of the Constitution democratic government India would have. was the form of representative democracy most suitable for India. In the backdrop of ACCEPTING REPRESENTATIVE their debates was a long-standing history of DEMOCRACY India, having seen varied forms of governmental mechanisms in the ancient and Direct Democracy could not have been colonial times. materialized into reality because of many practical reasons. Indian society is extremely The history was witness to the complexities diverse, with such a humungous range of which define individuals, their identities and ideological systems and economic conditions their idea of a nation. It was incumbent on operating that it would have resulted into the Assembly to draft a Constitution which is more chaos than stability if direct democracy “indigenous to the country”227 and which was implemented. One of the key faithfully represents the “will of the determinants of an effective direct people”228 and hence, the debate surrounding democracy is the competence of the voters. whether India should have a parliamentary or India, as noted earlier, was mired and still presidential form of government was intense. remains mired with acute poverty levels, and even in areas where education facilities are An explanation often offered with respect to ample, political atmosphere is not the adoption of parliamentary form of intelligently appreciated. Moreover, the government in India is that it is part of the
227Ibid. 228 Ibid. CORPUS JURIS|67
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
‘inheritance’ is two-faceted. India inherits the (a) Socio-Cultural Heterogeneity and its governance mechanism from the colonial incidents period as well as its socio-cultural diversity.229 The Colonists implemented a system akin to Dr. S. Radhakrishnan had once remarked what was prevalent in England at that time, that the “sacredness of human personality”231 resulting in the establishment of many is an indispensable feature of democracy. In democratic institutions which are still a democracy, the voice of the common followed, and the socio-cultural realities of masses must be given effect by the Indians defined the social structure of the Government, and for this reason, a country. parliamentary democracy will serve as the most potent tool for effectuating the will of These democratic institutions were felt to be the people.232 competent to handle the extreme heterogeneity in the Indian polity. Moreover, The framers of the Constitution were aware there exists a pattern involving British of the existing social structure which had colonies adopting the governance system become entrenched in the Indian society, which their colonists had left behind such as exposing itself to social and cultural Canada, New Zealand and the United States crevasses. In 1931, leaders such as Motilal of America.230 However, the decision of the Nehru moved a resolution famously called Constituent Assembly to adopt the Karachi Resolution with which the parliamentary form of government was more Preamble of the Constitution shares than just about institutional convenience commonalties.233 The resolution was an obtained through inheritance. enumeration of the ideals of democracy, which entailed not only “free and fair”234 elections but also revamping of the existing social structure so as to create a strong and
229Surjit S. Bhalla, 'India: Democracy, Growth And 230 Ibid. Development 1951—2012, Legatum Institute, 2013 (Sep. 231William Sweet, The Moral, Social And Political 20, 2020), Philosophy Of The British Idealists (Imprint- https://lif.blob.core.windows.net/lif/docs/default- academiccom 2009). source/democracy-works/democracy-works---india- 232 Ibid. conference-paper---democracy-growth-and- 233Supra note 257. development-1951-2012---by-surjit-s-bhalla- 234Indira Nehru Gandhi v Raj Narain 1975 Supp SCC 1; pdf.pdf?sfvrsn=0.html. Kihoto Hollohan v. Zachillhu 1992 Supp (2) SCC 651. CORPUS JURIS|68
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in representative democratic society. These It could be safely said that the framers of the ideals were given significant expression in the Constitution opted for a parliamentary form Constitution later.235 of democracy for valid reasons. While introducing the draft of the Indian The founders were not oblivious to the Constitution, Dr. B.R. Ambedkar explained challenges posed in establishing and that a presidential system can be opted over implementing a parliamentary form of the parliamentary system of democracy government in a country as juggernaut as provided the chief aim is to achieve stability ours, but with the prevalent social, economic in the government; if the chief aim is and political development in the country, ensuring accountability, then the system accountability assumed an indispensable should be the latter.240 India, back then and nutrient for the survival of our democracy.236 even now, needs its political leaders and law They could not ignore the challenges which makers to shoulder accountability of their the social and economic disparities had actions, considering a long-standing history placed among people, resulting in the rule of of a colonial regime which defied all notions “social authoritarianism”.237 They were aware of fairness and accountability and was hell- of the existence of this class structure that bent in damaging the fabric of the Indian distinguished among people on the basis of society. their social and economic status, which, inevitably, resulted in tyranny, greed, poverty, (b) Ancient and Colonial Governance loss of independence and self-respect.238 Systems and Institutional Convenience Hence, and as Dr. B.R. Ambedkar believed, a political democracy without social and i. (i) Ancient India and Parliamentary Form of economic democracy is inconsequential, and Governments parliamentary democracy seemed to achieve this combination.239 Aside from considerations stemming from the existing social, economic and cultural structures, India’s history with institutions
235 Infra note 243. 238 Ibid. 236 P.C. Alexander, 'Reform of Political Parties In India' 239 Ibid. (2007) 36 ASCI JOURNAL OF MANAGEMENT. 240 Ibid. 237 Ibid. CORPUS JURIS|69
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in incorporating parliamentary features popular assemblies and expects their provided for greater ease to institutionalize a members to work with high regard to the law parliamentary form of government. India has of the land.244 had her tryst with representative and popular democracy and has experimented with One of the earliest forms of Rajya Sabha can democratic institutions ever since the Vedic be found in the texts of the epic Mahabharat period. The oldest known Indian literature in which the role of the experienced mentions establishment and functions of the individuals was emphasized for the guidance Sabhas and the Samitis, which were essentially of the King and the Court in critical popular assemblies.241 These assemblies were matters.245 Sri Krishna was the head of the spearheaded by an elected King who oversaw Andhak-Vrishni Republic and has been discussions on matters concerning the State. mentioned in the epic.246 In Arthashstra, the These assemblies were succeeded by post- Vrishni is referred to as a Sangha which, when Vedic Republics in the form of Sanghas242. translated, means a Republican These Sanghas exhibited some of the modern- corporation.247 day parliamentary features such as procedure relating to the passage of resolutions and Great religious leaders such Mahavir and ascertainment of Quorum. The functioning Gautam Buddha were not alien to the system of the Sanghas was heavily governed by the of Republics. The former was from Licchavi’s dictates in the Vedas, particularly Rigveda.243 Vaishali and Gautama Buddha from Shakya’s Manusmriti—which guided the British Kapilvastu248; both of these clans operated as government in the framing of Hindu law and Republics. During the period of Buddha, continues to influence Indian jurisprudence especially, there were a number of till date—provides a sacrosanct character to autonomous or democratic institutions or
241EMERGENCE OF REPUBLICS IN ANCIENT 244 Ibid. INDIA, Shodhganga, (Sep. 20, 2020), 245 Infra note 257. http://shodhganga.inflibnet.ac.in/bitstream/10603/ 246 Ibid. 139002/7/07_chapter%202.pdf.html. 247Kautilya's Arthashastra (2019), (Sep. 20, 2020), 242 Ibid. https://csboa.com/eBooks/Arthashastra_of_Chana 243 Dr. Binod Bihari Satpathy, Politico-Social And kya_-_English.pdf.html. Administrative History Of Ancient India, Directorate of 248 NEW QUESTIONS AND IDEAS, NCERT, Distance & Continuing Education, 2019, (Sep. 20, 2019, (Sep. 20, 2020), 2020), http://ncert.nic.in/textbook/pdf/fess106.pdf.html. http://ddceutkal.ac.in/Syllabus/MA_history/paper- 10.pdf.html. CORPUS JURIS|70
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in clans, aside from his own such as the Pava’ felt as an assault on social and cultural norms Mallas, Mithila’ Videhas, Allakappa’s Bulis of religious communities in the country.251 and Pipphalivana’s Moriya.249 The Republic state system came under heavy attack from As a consequence of this revolt, the British Kosala and Magadh during the 6th century, Crown formally assumed control over India eventually resulting in the restoration of the through the Government of India Act 1861 monarchial state of rule. Many republics were and assured that it would not interfere with subsumed in the empires of three dynasties the customary and religious systems 252 mainly, Maurya, Nada and Shishunanaga but However, the regime slowly introduced later emerged again when these dynasties institutions which ultimately furthered started losing foothold.250 India’s preparedness for a Parliamentary form of government.253 (ii) British India and Institutionalization of Parliamentary Form of Government Until 1909, there were minor attempts made to provide representation to Indians in The ground for a parliamentary form of legislative and administrative institutions. In governance was leveled and concretized 1909, communalism-laced Morley-Minto more when the British attempted to Reforms were introduced followed by the commercialize the country through East Montague-Chelmsford Reforms which India Company and ultimately, colonize it. A resulted in the enactment of one of the key major change in the governance system was enactments from the colonial times, the ushered in the aftermath of the 1857 revolt— Government of India Act 1919, which gave a struggle sparked off over the nature of way to the system to diarchy.254 Polishing the cartridge used in the then newly introduced 1919 reforms and introducing a few new Pattern 1853 Enfield rifle whose usage was ones, the historic Government of India Act 1935 was enacted from which much of the
249 Infra note 257. 252 Ibid 250 Ibid. 253 Ibid. 251 Sumit Ganguly, The Story Of Indian Democracy - 254 Remarks, Constituent Assembly Debates, (Sep. 20, Foreign Policy Research Institute, Foreign Policy Research 2020), Institute, 2011, (Sep. 20, 2020), https://cadindia.clpr.org.in/historical_constitutions/ https://www.fpri.org/article/2011/06/the-story-of- indian_councils_act__1909_1st%20January%201909. indian-democracy.html. html. CORPUS JURIS|71
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in present-day governance structure and nation in the people of the country who shall functions are derived and implemented in elect their representatives, who, in turn, shall India.255 One of the most vital takeaways have to answer the Parliament for every from this enactment was federalism which is action taken. now a basic structure of the Indian
256 Constitution. THE MULTIPARTY SYSTEM OF INDIA
The decision to make India a democratic, In a country where a parliamentary form of republic country, with a parliamentary form government operates, it is impossible to of government was made after having imagine the State without a party system. The considered the myriad complexities which party system is an integral aspect of a govern the lives of Indians. A political representative government, and political structure appreciative of these complexities parties are primary instruments of power in a as well as aware of the need to ensure that the polity.257 The purpose of political parties is country grows out of the centuries of not just to provide a room of multiple oppression and backwardness was electoral choices to the electorate; their imperative. A Presidential form of purpose is fundamental to the very existence government would have, certainly, ensured a of an accountable government. stable and systematic form of government, but it would have reduced the responsibility Political parties, at a very basic level, are of the government towards those who social organizations shaped and powered up elected it. The cracks which had become by particular ideological commitments, or prominent in the Indian society, the political religious, ethnic economic etc identities and confusion and conflict, and necessity to represent collective interests of a class or restore the public’s faith in an organized classes of a society.258 It is a prime function polity compelled the framers of the of political parties to mobilize public opinion, Constitution to vest the sovereignty of the organize forums for voicing their opinion,
255 Vernon Hewitt, Political Mobilisation And Democracy 257 POLITICAL PARTIES AND PARTY SYSTEM In India (Taylor & Francis 2007). IN INDIA, Shodhganga, (Sep. 20, 2020), 256 His Holiness Kesavananda Bharati Sripadagalvaru and http://shodhganga.inflibnet.ac.in/bitstream/10603/ Ors. v. State of Kerala and Anr. AIR 1973 SC 1461. 93734/11/11_chapter%205.pdf.html. 258 Ibid. CORPUS JURIS|72
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in and establish communication channels form of party system in which Indian between the citizenry and the government.259 National Congress had represented the Hence, they are fundamentally responsible nation and virtually controlled the entire for social integration in a polity.260 nation for decades.263 The researcher believes that one-party dominant party system is not During the drafting of the Constitution, the technically a system but reflection of the state framers had several forms of party systems to of a multiparty system. As per the consider two-party system, multi-party researcher’s understanding, one party system, one-party system and one-party dominant party system is a multi-party dominant system. The two-party system, as system with an immensely lopsided the name suggests, envisages the existence of competition. two political parties, as in the United States, and is said to be an excellent option for ACCEPTANCE OF MULTIPARTY SYSTEM ensuring stability of government and an organized opposition. One-party system— In the Constitution, the multi-party system the selection of which would have inevitably has not been explicitly mentioned. There sparked a lot of controversy—has only one remains an absence of specific provisions on political party, giving an authoritarian political parties, their nature and functions. character to the government in power while In fact, the only definition of “political assuring stability.261 One-party dominant parties” can be found under the system, unlike one-party system, does not Representation of People’s Act 1951 that envisage a complete elimination of political considers them as associations or bodies of competition, but political competition which individual citizens which are registered with could not reduce the foothold of a political the ECI under section 29A.264 Other party assuming dominant role.262 Until the enactments such as the Income Tax Act 1961 coalition governments became common, address political parties in the same vein. India remained a classical example of this Now, while the Constitution of India does
259Political Parties & Party Systems, Harvard, (Sep. 20, 260 Rajni Kothari, Party System and Election 2020), Studies (Allied Publishers 1967). https://sites.hks.harvard.edu/fs/pnorris/DPI415%2 261 Infra note 270. 0Comparative%20Politics/DPI415%20Powerpoints 262 Ibid. /14%20DPI415%20Parties%20and%20party%20syst 263 Infra note 276, p 22. ems.pdf.html. 264 Ibid. CORPUS JURIS|73
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in not explicitly talk about political parties, their Constitution who wanted to establish a existence in the political landscape was political platform marked by mobility and realized with the inclusion of the 10th elasticity and greater opportunities to myriad Schedule via the Constitution (Fifty-second opinion groups to have themselves heard and Amendment) Act 1985 that made defection a addressed.267 ground for disqualification from the Parliament and State Legislatures.265 Through Although India witnessed a transition from this, there is an implicit acknowledgment of one-party dominant position to multi-party multiparty system. system post-independence, many parties already existed pre-independence and played India opted for multiparty systems for many a major role in checking the authoritarianism reasons. Many champions of democracy of the British government. The political believe that multiparty systems make a State landscape witnessed the establishment of the more democratic. Notionally, one can argue Indian National Congress in 1885 which that such systems produce such effect, but ultimately divided into two268, one there may be differing conclusions in comprising the Moderates and the other reality.266 One thing, however, could be very comprising the Radicals. Other political confidently noted that India’s massive parties emerged and started gaining traction heterogeneous nature required a system like such as All India Muslim League, Dravidar this because it is a hub of diversity which Kazhagam, Revolutionary Communist Party cannot be adequately represented through a of India, Communist Party of India, limited party system. It is usually a case with Revolutionary Socialist Party, Shiromani multi-party systems that weak and unstable Akali Dal, Justice Party and Swaraj Party.269 coalitions are formed undermining stability Many of these parties faded away by the time of the government. However, and as noted independence was attained, and whichever earlier, stability was second in preference to remained continued functioning or accountability for the framers of the becoming larger. Congress enjoyed political
265 Vibhor Relhan, The Anti-Defection Law Explained, (Sep. 20, 2020), https://www.e- PRSIndia, 2017, (Sep. 20, 2020), ir.info/2012/11/21/does-a-multi-party-system-lead- https://www.prsindia.org/theprsblog/anti- to-more-democracy.html. defection-law-explained.html. 267Supra note 251. 266 Anastija Malachova, Does A Multi-Party System Lead 268 Infra note 276. To “More” Democracy?, E-International Relations, 2012, 269 Ibid. CORPUS JURIS|74
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in hegemony for decades until the political which significantly overhauled the power landscape became competitive enough to dynamics in Indian politics and ingrained the give way to coalition governments. multi-party system.273 Starting from 1996, the Congress Party started losing its grip on the Post-independence, Pandit Jawaharlal Nehru political landscape and the BJP transformed enjoyed undisputed supremacy in the itself into a powerful and country’s largest political sphere and spearheaded the right-wing political party.274 Alongside, many Congress Party to a state of pure dominance. regional parties gained traction and assumed Congress was shook by the Chinese debacle, power in states such as Tamil Nadu and and by time 4th General Election took place, Kerala. With this period, India witnessed there were an increased number of political solidification of a multi-party-political parties challenging the hegemony of the landscape. Congress.270 Under Ms. Indira Nehru Gandhi, the country witnessed high- It is to be noted that Indian party system handedness which, nevertheless, ensured the operates at national and state level. It is not dominance of the party and after her, Mr. difficult to notice that the party system in Rajiv Gandhi successfully maintained one- India has been influenced greatly by party dominance.271 There were intermitted traditions of the various nationalist and victories which went in favour of the regional movements, cultural, ethnic, Opposition parties led by Janata Party, religious and linguistic diversity, caste and immediately followed by the re-emergence of creed, and hence, these levels provide the Congress as the standalone largest requisite representation to the electorate.275 political party.272 A major outcome of the 10th At present, there are seven National Parties: General Election was the growth of the All India Trinamool Congress, Bahujan Bhartiya Janta Party (BJP) into the primary Samaj Party (BSP), Bharatiya Janata Party opposition party in the country. It was, (BJP), Communist Party of India (CPI), however, the period between 1996-2004 Communist Party of India (Marxist) (CPM),
270 Pratap Chandra Swain, 'DYNAMICS OF THE 271 Ibid. INDIAN PARTY SYSTEM : THE EMERGENCE 272 Ibid. OF COMPETITIVE MULTIPARTY 273 Ibid. COALITIONS' (2008) 69 The Indian Journal of 274 Ibid. Political Science. 275 Ibid. CORPUS JURIS|75
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Indian National Congress (INC), and unrecognized parties, as per the data National Congress Party (NCP).276 There are provided by an ECI notification.277 total 55 state parties and 2044 registered
276 'Amendment Notification - List of Parties And https://eci.gov.in/files/file/9787-amendment- Symbols English Dated 01.04.2019, Election notificaiton-list-of-parties-and-symbols-english- Commission of India, 2019, (Sep. 20, 2020) dated-01042019.html. 277 Ibid. CORPUS JURIS|76
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
Democracy is at the heart of India’s governance system. Years of colonial suppression preceded by rigid regional politics furthering instability served as the base for the institutionalization of a democratic framework in the country. However, unlike the United States of America, our forefathers envisioned a nation operating on the principle of accountability and decided to pave way for a multi-party system. Due to the inherently heterogeneous character of Indian citizenry, it was only fitting to offer them myriad electoral choices that could espouse local and national issues more effectively. Hence, there have been no restrictions on the formation of political parties in the country so long as certain conditions are fulfilled.
Our constitutional and legislative framework has been drafted and amended in due course of time to accommodate the interests of the electorate through greater representation in the form of multi-party system. However, and as already stated in the preceding discussion, India has had a de facto single party system until late 20th century, and it was only when Janata Party came to power in the 1977 General Elections that it was hinted that Indian democratic polity was undergoing a significant change. Still, it was not until 1996 that the Opposition operated as a consolidated force and was generally instable in nature. The rise of the BJP changed the winds in Indian politics, and the age of coalition governments became a norm. This change in the electoral landscape amplified the changing dynamics of politics in India.
Multi-party system is the soul of Indian polity, but it has been changing continuously as we speak. Today, BJP is at the helm of central affairs whereas the once-indomitable Congress is losing foothold in constituencies which have historically been its bastions. More parties have emerged, which have gained traction in regional matters and diversified the transformative character of India’s multi-party system. History speaks, politics is a matter of time and
CORPUS JURIS|77
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
strategy. BJP is to remain for now, but how long? Politics gurus claim that a strong opposition is the need of the hour to infuse more accountability in the governance framework; however, it shall take time. Non-BJP parties have proposed a unified alliance of all major opposition parties to counter the grip of the BJP at the centre and in various states. It is a matter of time when we would know whether the same shall be achieved. What I could say, tables have turned; what was once powerful has become crippled, and what was once crippled has become powerful. Yet, the unpredictability of the electorate and the fluid character of democracy could surprise anyone in the future.
CORPUS JURIS|78
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CASE COMMENT: ANALYSIS OF THE TREATMENT OF COMMITTEE OF CREDITORS ESSAR STEEL INDIA LIMITED V. SATISH KUMAR GUPTA & ORS ONWARDS
-SHAMBHAVI SINGH*
ABSTRACT
The Insolvency and Bankruptcy Code, 2016 being one of the most momentous steps undertaken by the Government to address the extensive increase in the level of distressed debt in India, sets out a time-bound insolvency resolution process. In this process, defaulting corporate debtor’s and introduction of a ‘creditor-in-possession’ model provides a mechanism whereby committee of creditors (CoC) is formed to take decisions regarding the operations of the corporate debtor, including evaluating prospective resolution plans for resolving the corporate debtor’s account. From an acquisition perspective, the potential acquirer of the asset is required to propose the best bid for the asset which would be able to acquire the approval of the Committee of Creditors. The CIRP route has led to thriving acquisitions across various sectors stretching from Essar Steel to textiles Alok Industries and has become a new and useful tool to undertake acquisitions for future acquirers providing an easier and quicker way for acquisition of specific assets.The Essar Steel case dealt with various features of corporate insolvency resolution process including the supremacy of the CoC’s decisions and more critically, restricting the powers of courts to interfere with commercial terms of a resolution plan have now been finally resolved. The article makes an attempt to highlight the features of the judgment and the importance of the CoC in decision making during the CIRP. The article draws a picture of how the IBC Code is moving towards achieving its intended goal of swift redistribution of productive assets cornered in insolvent companies and discouraging the idea that big loans is the lenders’ problem, not the borrowers’.
KEYWORDS: Committee of Creditors, CIRP, Essar Steel, IBC, NCLT.
* Student, 5th Year, BBA LLB, Galgotias University. CORPUS JURIS|79
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION The Insolvency and Bankruptcy Code beautifully encapsulates and embodies Historically, the corporate insolvency existing laws on insolvency of corporates at resolution process (CIRP) in India has one place. Further, the rights of creditors are involved the simultaneous incorporation and also compiled. The Code provides a lot of applicability of multiple legal instruments. A light on the modification and reactivation of few of these instruments would include the sustenance of debt without a enactments such as the Sick Industrial corresponding elimination of creditor rights. Companies Act of 1985, the Securitization Simply put, . the Bankruptcy and Insolvency and Reconstruction of Financial Assets and Code is the cornerstone of CIRP. Various Security and Welfare Act of 2002, the Debt instances of initiation of the procedure by Recovery Act for Banks and Financial different stakeholders and additionally the Institutions of 1993, and Companies Act of benefits accrued by the companies are also 2013. All these enactments not only had laid out. different processes of debt restructuring, seizing and realization of outstanding debts, BRIEF FACTS OF THE CASE but also caused enormous confusion in the legal system due to ineffective of insolvency In the ‘Corporate Insolvency Resolution and liquidation. Process’ initiated against ‘Essar Steel India Limited’- (‘Corporate Debtor’), the Therefore, the need to modify the insolvency ‘Committee of Creditors’ approved the process was felt. As a result, these multiple ‘Resolution Plan’ submitted by ‘ArcelorMittal legal procedures and judicial systems, India India Pvt. Ltd.’- (‘Successful Resolution witnessed a huge accumulation of Applicant’) which was approved by the unprofitable assets, with creditors waiting Adjudicating Authority (National Company years to get their money back. The Law Tribunal), Ahmedabad Bench, Insolvency and Bankruptcy Code is an Ahmedabad, with certain modifications by attempt to reform and streamline the business insolvency process to allow free flow of credit and insti faith in investors for the disposal of their claims.
CORPUS JURIS|80
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in impugned order dated 8th March, 2019.278As • Extendibility of the maximum period for per the resolution plan, ArcelorMittal offered CIRP. a cash advance of approximately Rs 42 billion • Rights of prospective resolution to financial creditors and further capital applicants injection over the next few years. However, • Obligations on CoC while considering a the offer did little to Essar Steel's operating resolution plan for approval creditors. In 2019, the NCLAT approved the • Scope of amended regulation 38 CoC plan but altered the financial • Rights of creditors against guarantors & distribution plan by ordering a recovery extinguishment of the claim of a contingency plan for all creditors, including guarantor on account of subrogation the financial and operational ones. The
Committee of Creditors was averse to the DECISION decision of the NCLAT. Due to the same, they decided to file an appeal against the The Essar judgment was delivered by a three- order in the Supreme Court of India. This judge bench of the Supreme Court. In doing case was filed by Standard Chartered Bank so, the Supreme Court reversed the along with a petition filed by the State Bank NCLAT’s order. The judgment provides of India under Section 7 of the Code in the some much-needed insight into the matter NCLT’s Ahmedabad bench. An appeal and to quite an extent is successful in giving against the same is first filed in the NCLAT clarity to all the stakeholders involved. and then in the apex court of the country, the
Supreme Court of India. In its ruling, the Supreme Court states that
fair treatment can apply only to similarly ISSUES RAISED IN THE CASE placed creditors. The extension of the
principle of fair treatment to unequal A plethora of issues were addressed through creditors is not tenable under law. This is a this case: complete derogation of the legal principles
that are laid down under the Constitution of
278 Standard Chartered Bank v. Satish Kumar Gupta, https://nclat.nic.in/Useradmin/upload/1027333707 R.P. of Essar Steel Ltd. &Ors., Company Appeal (AT) 5c8fa03609b52.pdf. (Ins.) No. 242 of 2019. CORPUS JURIS|81
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
India. Treatment must be given according to implementation of the corporate insolvency the class of creditors to which it applies, resolution plan. Further, the court interprets whether secured or unsecured, financial or the contribution of creditors by stating that operational. The principle of intelligible by actually providing capital for companies, differentia must be applicable. financial creditors in reality are the ones that help companies buy assets and conduct The essential majority constitutes 66% of the business. CoCas per the provisions of the Insolvency and Bankruptcy Code (IBC.). As per Further, the court interprets that operating commercial wisdom, it is essential to creditors are in a way the beneficiaries of the formulate a resolution plan after proper amounts loaned by financial creditors. negotiation an adoption of the same in a way that successfully involves differentiated The Supreme Court eliminates the payments to different classes of creditors. mandatory 330-day term to resolve insolvency and bankruptcy cases and Courts inherently do not possess a residuary liquidation is subsequently invoked. The jurisdiction of sorts to interfere with the court provides some flexibility by allowing merits of a business decision by the CoC. exceptions when the resolution plan is Even the case of K Sashidhar v. Indian nearing completion. The 330-day mark is a Overseas Bank279 expressly states that there violation of Article 14 of the Constitution is no provision in the Code that permits a which guarantees the right to equal treatment resolution professional or the adjudicating and Article 19 (1)(g) which guarantees the authorities to reverse the commercial right to carry out any commercial activity. decision of the Committee of Creditors. Therefore, any kind of intervention is not This major judgement helps facilitate the appreciable. biggest takeover of bad debts in Indian corporate history and states that the The Court further maintains the priority of committee of creditors (CoC) shall most financial creditors over operational creditors in the distribution of funds during the
279 2019 SCCOnLine SC 257. CORPUS JURIS|82
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in definitely have a final say in the resolution Secured & Unsecured Creditors plans.280 The Supreme Court has ruled that fair treatment only applies to similarly located CASE ANALYSIS creditors and that the principle of fair treatment cannot be extended to the fair After a long battle of almost 900 days, the treatment of unequal creditors. Equitable Essar Steel case has come to an end, with the treatment must be given according to the Supreme Court overturning the ruling of the class of creditors to which it applies, whether National Court of Appeals for Company Law secured or unsecured, financial or (NCLAT) and confirming the decision of the operational. Committee of Creditors (CoC). on how funds from the Rs 42 billion offer to The Supreme court was of the view that ArcelorMittal would be distributed to protecting creditors, in general, is an creditors. important objective. It is important to protect creditors from each other. Adopting The Supreme Court rejected the contention an "all fairness" approach that recognizes the that the amendment was only made to negate rights of different classes of creditors as part the effect of the NCLAT judgment in the of an insolvency resolution process will, in Essar Steel Case. While it is true that the law many cases, encourage sponsoring FCs to established by the NCLAT, in this case, may vote for liquidation rather than resolution, be the basis for some of these amendments, since they would have better rights if the CD it cannot be said that the NCLAT ruling has is liquefied. been directly overturned by the legislature. The Amendment Act can only be removed This would undermine the purpose of the on the basis that it was enacted to remedy the Code, which is to resolve the disturbing defect in the NCLAT order in the case of assets and, if the same is not possible, Essar Steel.281 continue the liquidation. The amended
280 Samanwaya Rautray, Supreme Court Clears Arcelor’s takeover-of-essar- takeover of Essar Steel, The Economic Times, Supreme steel/articleshow/72066365.cms?from=mdr.. Court clears Arcelor’s takeover of Essar Steel, (Dec.1, 281 Committee of Creditors of Essar Steel India Private Limited 2020, 10:16A.M.) V. Satish Kumar Gupta &Ors. (Civil Appeal No.8766- https://economictimes.indiatimes.com/industry/indl 67 of 2019) -goods/svs/steel/supreme-court-clears-arcelors- CORPUS JURIS|83
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Regulation 38 does not mean that FCs and paragraph 7 of Statutory Form H of the OCs, or secured and unsecured creditors, CIRP Regulation. 282As a result of the Code must pay the same amounts, in percentage and Regulations, read in their entirety, with terms, according to the resolution plan the opinions of the expert bodies and the before it can be approved. Fair and equitable judgment of the Supreme Court, all of them treatment of OCs rights under Regulation 38 believe that the principle of equality cannot is the resolution plan that sets out how OC be extended to treat injustice fairly, since that interests are treated, which is not the same as will destroy the Code - to resolve assets under establishing that the same amount of their stress. All creditors should be treated fairly debt must be paid prorata. based on the class to which they belong: sponsored or unsecured, financial or Provided that the provisions of the Code and operational. There is a crucial difference Regulations are followed, the most essential between the jurisdiction of the Superior part of the CoC's business wisdom is to Court under section 392 of the Companies negotiate and adopt a resolution plan, which Act 1956 and the jurisdiction of the AA may involve differentiated payments to under the Code. The AA must decide different classes of creditors, as well as whether a resolution plan is per the Code and negotiating with a potential applicant for there is no residual jurisdiction not to credit. a solution in better or different approve a resolution plan on the basis that it conditions that may also imply differences in is unfair or unfair to a class of creditors, the distribution of amounts between provided that the interest of every class and different classes of creditors. he was cared for.
Further the Supreme court considered that Role of COC in CIRP Secured and unsecured FCs differ in terms of It is the commercial wisdom of the CoC to amounts payable under a resolution plan, as decide whether to reinstate the Corporate well as dissident sponsored or unsecured FCs Debtor by adopting a particular resolution payable. Most importantly, the operational plan. What remains of the CoC majority creditors are viewed separately from these decision is the "feasibility" of a resolution secured and unsecured FCs in SI. 5 of plan, which of course takes into account all
282 Ibid. CORPUS JURIS|84
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in aspects of the plan, including the method of negotiations with the prospective resolution distribution of funds among the various seeker, how and in what manner the CIRP classes of creditors. It is the commercial will be conducted. wisdom of the CoC to decide whether or not to restore the CD by adopting a specific ● Maximum 330 days for CIRP - extended resolution plan. The BLRC discussed the under certain circumstances rationale for only FCs to handle and resolve The time spent in legal proceedings should CD transactions, which formed the basis for not harm the litigants, unless the Court itself the enactment of the Insolvency Code. can take the litigant's case within the required period without deeming the litigant as guilty. The resolution of insolvency is ultimately in The word "mandatorily" in the amended the hands of the majority vote of the CoC. section is removed because it is considered You can approve a resolution plan with a an unreasonable restriction on the right to vote of not less than 66% of the percentage make business laws and may force companies of vote of the frequently asked questions, to liquidate due to court delays. after evaluating its feasibility, and various other requirements prescribed by the Therefore, the time required for the CIRP Regulation. should normally be completed within the external limit of 330 days from the insolvency What remains of the CoC's majority decision commencement date, including extensions is the "feasibility and feasibility" of a and the time required for court proceedings. resolution plan, which takes into account all If the delay or a large part of it is attributable aspects of the plan, including the method of to the delay of the AA process and/or the distribution of funds among the various NCLAT itself, in such cases it may be open classes of creditors. It is the business wisdom to the AA and/or NCLAT to extend the time of most creditors to determine, through beyond 330 days.
CORPUS JURIS|85
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
This is the most landmark and significant case in the history of the IBC. The decision, in this case, gave rest to various burning issues which were prevailing in the Corporate Insolvency Resolution Plan under the Code. The Judiciary has played a vital role in interpreting the complex provisions of the IBC.283 Many landmark judgments have been passed by the National Company Law Tribunal, National Company Appellate Tribunal and Supreme Court of India. The Code was enacted in 2016 yet various landmark decisions have been passed by the Courts which gave a new dimension to the Code and solved various complexities which were faced while implementing the provisions of the Code. The judgment of the Supreme Court is an authorized pronunciation that resolves a series of annoying questions that have affected the proper functioning of the Code. Various aspects of the corporate insolvency resolution process, including the supremacy of CoC decisions and, more critically, limiting the powers of the courts to interfere with the business terms of a resolution plan are ultimately resolved.
283 Abhiman Das, Anurag K Agarwal, Joshy Jacob, Sanket Mohaptra et al., Insolvency and Bankruptcy Reforms: The Way froward, Vikalpa: The Journal for Decision Makers, (Dec.13, 2020, 5:30.P.M.) https://journals.sagepub.com/doi/full/10.1177/0256090920953988. CORPUS JURIS|86
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
COMPARATIVE STUDY OF LAWS ABOUT BANKING AND INSURANCE IN INDIA, GERMANY, AND CANADA
-RISHABH SINHA*
ABSTRACT
In today’s competitive world a comparative study is much needed to compete with. India is one of the fastest-growing economies in the world and will have to face a lot of competition with various countries. So, to compete India will have to compare its economy with other developed countries’ economies, then we can know the areas in which we have to work. Banking and Insurance are the two major segments of any economy and to make it stronger day by day is the responsibility of their country. Hence, this article aims to compare the laws about banking and insurance in India with two countries i.e. Canada and Germany, they are developed countries and are also having the best banking and insurance structure in the world, so it would be wise to compare with them. This article compares various points like different banking models, legislation, regulation, licensing, data protection, and dispute resolution with Canada and Germany. This comparison would bring out some serious questions like whether the Indian banking model is competitive enough or not to attract investors., or whether the regulatory and privacy structure of Indian Banking and Insurance structure is strong enough or not, or how does India answer the consumers’ disputes. In the end, this article will also provide solutions to all the questions that get arouse after multi-point comparison.
KEYWORDS: Banking model, Legislation, Regulations, Bank Act, OSFI, BaFin, Data Protection, ADR, Ombudsman, and Ombudservice.
* Student, 5th Year, BBA LLB, KIIT School of Law. CORPUS JURIS|87
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION a good banking and insurance sector which will help in the development of the country. The Banking and Insurance sector is an Banks, in developing countries, provide important part of any country’s economy. liquid money and other services to its Banking was present in India Since ancient customers and thus attracts a wide variety of times, business owners called Shroffs, Seths, disputes thus it requires a very strong Sahukars, Mahajans, Chettis, etc. had been regulatory body. Similarly, the Insurance carrying on the business of banking. These sector is also a crucial part of an economy, businessmen used to keep and lend money to this industry ensures an economic remedy for their customers at some interest rate. an uncertain future event. In today’s world, Whereas in India insurance has a deep-rooted everyone wants to reduce their risk history. It finds mention in the writings of percentage and thus they opt for insurance. Manu (Manusmrithi), Yagnavalkya India being a developing country has become (Dharmasastra), and Kautilya (Arthasastra). an attractive market for the insurance sector The writings talk in terms of pooling of and thus it requires to be regulated in such a resources that could be re-distributed in way that it attracts more customers. Thus, a times of calamities such as fire, floods, comparative study of the banking and epidemics, and famine. This was probably a insurance sector of India with Canada and pre-cursor to modern-day insurance. Ancient Germany would help India to know its grey Indian history has preserved the earliest areas. traces of insurance in the form of marine trade loans and carriers’ contracts. Insurance BANKING SECTOR in India has evolved heavily drawing from other countries, England in particular.284 Banking is a network of different types of banks that accept deposits and savings from A well-developed banking and insurance the general public, firms, and other sector will bring boon for the economy, India institutions and provide a wide range of which is still evolving, and developing needs economic services to their customers. The
284 Insurance Regulatory & Development Authority of https://www.irdai.gov.in/ADMINCMS/cms/Norm India, History of Insurance in India, IRDA ( Dec. alData_Layout.aspx?page=PageNo4&mId=2. 13,2020, 2:51 P.M.) CORPUS JURIS|88
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in banking systems are part of the financial providing all a wide range of services system of every country. So, it’s needed to be and products. This structure was governed and regulated very precisely. In this adopted from the English model article, we will compare various regulations promoting a wide number of bank of India, Canada, and Germany. We will start branches to indulge in industrial comparing the banking laws from Canada development. and end in Germany. • “Universal banking model”, in this In all three countries, the banks provide a model in India the banks are allowed similar function as compared to other banks by the legislature to provide a wide globally however, their structure and range of comprehensive financial regulations differ from country to country. services, starting from retail, Some of the major points are compared commercial and agriculture, etc. below. within one entity.
Banking models - In Canada, they use the • “Three pillar structure”, 285 “unlimited branch model” , in India we Germany’s banking system 286 follow the “Universal banking model” comprises three pillars — private whereas in Germany they the “three-pillar commercial banks, public-sector 287 structure” . Hence it is evident that these banks, and cooperative banks — countries follow different banking models. distinguished by the legal form and The various banking models are as follows. ownership structure.
• “Unlimited branch model” - In Legislation - Banking in Canada falls under this model there are many banks, and federal jurisdiction such that the Parliament their branches present in the country of Canada has legislative authority over
285ALIX GRANGER, BANKING IN CANADA 5, 287Hendrik Haag and Jan Letto Steffen, Hengeler (Gord Mcintosh 01 February 2012). Mueller, Banking regulation In Germany: Overview, (Dec. 13, 286Joshi, Amrut S., And M.P. Kartik. “The Development 2020, 1:17 P.M) Of Universal Banking: An Analysis Of The Legal Regimes In https://uk.practicallaw.thomsonreuters.com/Docum Usa And India.” 14Student Bar Review, , 1–25 ent/Ib8bfac1a192211e798dc8b09b4f043e0/View/Fu (2002), JSTOR,. (Oct.3,2020, 12:40P.M) llText.html?transitionType=Default&contextData=(s www.jstor.org/stable/44306626. c.Default)&firstPage=true&bhcp=1. CORPUS JURIS|89
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
“Banking, Incorporation of Banks, and the Management Act, 1999 and the rules and Issue of Paper Money”. The primary piece of regulations issued thereunder FEMA”290 legislation that governs banking in Canada is the Bank Act and its regulations. Banks in The German banking system is also under Canada are supervised by multiple regulators, the legislative authority of the Parliament of with the Office of the Superintendent of Germany but being an “EU member state, Financial Institutions (OSFI) responsible for Germany's regulatory framework is based on prudential regulation and financial stability, EU directives and regulations. The main and the Financial Consumer Agency of element of German banking regulation is the Canada (FCAC) responsible for consumer Banking Act (Kreditwesengesetz, KWG). It protection and market conduct”288. covers, in particular, licensing requirements, ownership control, and supervision. For However, when we turn towards the Indian capital adequacy, the main law is now the banking sector it is evident that the Indian CRR.”291 banking structure is under the legislative authority of the Parliament of India whereas Hence here one can notice that if in all these “the key regulator” for the banking system in three countries any change has to be made in India is the Reserve Bank of India (RBI, the supervisory framework then it can be 2020). The RBI is the central bank of India done through the legislature only because all and the primary regulatory authority for these countries have legislature as their banking.”[289] “The key statutes and lawmaker. This process is quite simple in regulations that govern the banking industry Canada and India when compared to in India are: the Reserve Bank of India Act, Germany because Germany has to follow the 1934 (RBI Act); the Banking Regulation Act, directives of the European Union. The 1949 (BR Act); and the Foreign Exchange statutory supervisory framework in Germany
288Global Legal Initiative, Banking Regulation 2020- https://www.globallegalinsights.com/practice- Canada, (Dec. 13, 2020, 1:20 P.M.) areas/banking-and-finance-laws-and- https://www.globallegalinsights.com/practice- regulations/India#chaptercontent2. areas/banking-and-finance-laws-and- 290 Ibid. regulations/canada#chaptercontent2. 291Supra Note 287. 289Global Legal Initiative, Banking Regulation 2020- India,(Dec 13, 2020, 2:00 P.M.) CORPUS JURIS|90
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in is based more on prudential principles than is the Deutsche Bundesbank. In banking on tight rules. supervision, the Deutsche Bundesbank works in close co-operation with BaFin and Regulatory structures - Starting with the ECB. Canada, the country has two independent federal government agencies that regulate Licensing and data protection - In and supervise financial institutions to Canada, one is not given the license until they determine its financial condition. They are are registered under the Banking Act of “the Office of the Superintendent of the Canada. All the norms are provided under financial institution (OSFI)” and “the the Bank Act of Canada. It is similar in India Financial Consumer Agency of Canada too, as one must follow the Banking Act of (FCAC)”. Whereas in India the Reserve Bank India to get listed in the schedules mentioned of India who is the regulator of the Indian in the Act. Similarly, in Germany, their banks is neither an independent federal Banking Act prohibits the conduct of agency, not an autonomous federal agency, banking business without a license. The the presence of government is there in requirements for obtaining a license are various stages, the Reserve bank of India is clearly defined in the Banking Act. Anyone the Central Bank of India and the works satisfying these requirements is entitled to be under the Reserve Bank of India Act, 1934 granted a license. and on the other hand the Banking Regulation Act, 1949 gives the power to RBI The licensing laws are mostly the same in all to provide regulations and various directives these countries. When the banks get a license, and work accordingly. The German they attract customers and thus have a lot of regulatory structure follows a Single data with them, due to which consumer data Supervision Structure because of being a protections become the duty of the banks. In member of the European Union, but it also Canada, the FCAC ensures that the FRFIs has its national regulator as “the Federal are complying with consumer protection and Financial Services Supervisory Authority it also helps the banks to keep the consumers (BundesanstaltfürFinanzdienstleistungsaufsicht, informed about their various transactions, BaFin)”292. The German national central bank new rules new norms which will affect them.
292 Ibid. CORPUS JURIS|91
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
If the FCAC sees any kind of threat, then it Whereas in India, banks and many other can directly report to the parliament through financial institutions avail the Alternate the finance ministry. Whereas in India the Dispute Resolution (ADR) procedure, personal data is protected through indirect because it’s less expensive and reduces the safeguards developed by the courts under load of the judiciary. However, in Germany, common law, principles of equity, and the many credit institutions and the majority of law of breach of confidence. Currently, there insurers have voluntarily agreed to settle are no direct laws for data protection, but one disputes through private dispute resolution can get compensation under the IT Act. On entities (ombudspersons), and often the other hand, when we look at Germany in recognize their decisions. According to the this aspect, one can see that they follow the German Act establishing the Federal provisions of the European General Data Financial Supervisory Authority, BaFin may Protection Regulation, the German Federal respond to a complaint by suggesting an out- Data Protection Act of-court resolution of the dispute, if the (Bundesdatenschutzgesetz – BDSG), and complaint is suitable for this. Expensive and other applicable legal provisions for the drawn-out legal proceedings can thus often protection of consumers’ data. be avoided.294 Hence, the countries have a similar dispute resolution mechanism. Dispute Resolution - Whenever there is any kind of problem between the consumer and INSURANCE SECTOR bank, the bank tries to solve it quickly rather than going through the judicial proceeding Moving towards the second section of this which takes more time. In Canada, the article, the insurance sector. This sector Ombudsman for Banking Services and includes companies offering risk Investments (OBSI) is an independent and management in the form of insurance impartial body that resolves disputes between contracts. The author examines laws that banks and their customers when a bank is not regulate the insurance sectors of Canada, able to resolve the dispute internally293. India, and Germany.
293 Supra Note 286. https://www.bafin.de/EN/Verbraucher/Beschwerd 294 Federal Finacial Supervisory Auhority,Compalints enAnsprechpartner/Ansprechpartner/Finanzombud to Financial Ombudsman Services,(Dec. 132020, 1:55 sstellen/finanzombudsstellen_artikel_en.html. P.M.) CORPUS JURIS|92
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The Legislative Structure of The functions of the prudential regulations. In Insurance Sector – In Canada, the other words, one can also say that Canada has legislative power is shared among the federal a compartmentalized form of structure. This government and the provincial governments, kind of structure is very safe for usage whereas in India the legislative powers are because of dual legislation/regulation. A shared only with the central legislature. In, similar kind of structure is used in Germany Germany the presence of the European but is unique in its way because the Country Union plays a dominant role; in 2016 makes laws and regulations within the Solvency II came in the whole of the supervision of the European Union. Hence European Economic Area (EEA) to create a insurance companies can be checked by single market for the whole of Europe. The regulatory bodies of Germany and the EU. In legislation of Germany is formed as per the India there’s only one regulatory body, thus directives of the European Union. The main dual check is not possible, and reliability aim of the European Union is to give decreases when compared to Canada and prudential directives so that the whole of Germany whereas the partial presence of the Europe can rise with each other and not be a Reserve Bank of India is evident at many competitor amongst them. places due to the heterogeneous banking model. In Canada, the Office of the The regulatory structure of The Superintendent of Financial Institution Insurance Sector - In Canada and India, the (OSFI) is the federal regulator of the Federal government has jurisdiction over the insurance sector and each province has its prudential regulation. However, in Canada, insurance regulatory power following the the presence of provincial statutes plays a common law jurisdiction except the Québec dominant role in the regulation of the province which follows the Québec insurance companies, but they have insurance law contained in the Civil code of regulatory power only and the prudential Québec.295 While in India we have the functions are in the hands of the federal Insurance Regulation and Development government but there is no bar on the Authority established by the Insurance provincial government to perform the Regulation and Development Act, 1999, as a
295ICLJ, Canada-Insurance and Reinsurance laws & https://iclg.com/practice-areas/insurance-and- Regulations 2020,(Dec 13, 2020, 2:05P.M.) reinsurance-laws-and-regulations/canada CORPUS JURIS|93
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in statutory regulator, promoter, and protector (including reinsurers) must be licensed to of the insurance industry. Under the carry on the business of insurance or supervision of IRDA there are Tariff reinsurance. OSFI will carefully scrutinize the Advisory Committee and Insurance application and will generally require Association of India, councils, and significant follow-up information and other committees, while looking at Germany, the action (including a site visit of the proposed main source of insurance law was their entity's office premises before approving). Insurance Contract Act (VVG). It sets out Under federal law, there is no distinction rules for and statutory provisions, it works between insurers or reinsurers concerning along with the German Civil Code and the requirement to be authorized. Insurance German code of civil procedure but in 2015 companies can also be incorporated under when solvency II came in a role “all private the laws of a particular province (While there and public insurance undertakings which are many provincially incorporated insurers, carry on private insurance and reinsurance it is less common for companies to be business within the scope of the Insurance incorporated under provincial statutes).297 Supervision Act (Versicherungsaufsichtsgesetz, Under the Canadian insurance industry risks VAG) and have their registered office in that are covered will not be attracting license, Germany are subject to supervision either by on the other side, the insurer should also the Federal Financial Supervisory Authority have the license in the province in which it is (BundesanstaltfürFinanzdienstleistungsaufsicht, carrying on the insurance business. Few BaFin) or by the supervisory authorities of provincial statutes require licensing if the the Federal States.”296 object of the risk insured is located in the same province. It is therefore theoretically Licensing of insurance companies - In all possible that, for the same activities, a foreign these countries licensing has been made insurer might not be required to be mandatory for the functioning of the authorized federally by OSFI, yet it may be Insurance business. In Canada insurers required to be licensed in one or more
296ICLJ, Germany-Insurance and Reinsurance laws & (Dec 13, 2:20 P.M.) Regulations 2020,(Dec 13, 2020, 2:10P.M.) https://uk.practicallaw.thomsonreuters.com/2-501- https://iclg.com/practice-areas/insurance-and- 7810?transitionType=Default&contextData=(sc.Def reinsurance-laws-and-regulations/germany ault)&bhcp=1#co_anchor_a334165 297 Gerald Badali, Darcy Ammerman and Christopher Garrah, McMillan LLP ,Thomas Reuters Practical Law, CORPUS JURIS|94
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in provinces. Despite the difference in the the authorization is valid in legislation the provincial licensing application all EU/EEA states. After going through effort has been somewhat facilitated by the what is known as the notification procedure, Canadian Council of Insurance Regulators an undertaking may carry on insurance (CCIR), which has put together a business outside its home country via standardized form of application although branches or through the cross-border each province has the power to evaluate the provision of services. Therefore, any application and can also ask for extra authorization to carry on business granted in information and documents. another EU or EEA member state is also valid in Germany. Insurers domiciled in a While in India if anyone wishes to open an non-member country that intend to take up insurance company then it should be a business in Germany are subject to registered company under the companies' authorization from BaFin. To obtain such act, 2013, and then they can apply for an authorization, several special provisions have insurance license at IRDA and provide all the to be observed. The undertakings are required documents. In Germany, the required, for example, to establish a branch undertaking must be a German public limited in Germany and to appoint an authorized company (Aktiengesellschaft), including a agent. The requirements related to the European Company (SE), a mutual society, a undertaking's financial adequacy are based on corporate body, or an institution governed by the scope of the business operated by the public law. It must, among other things, branch.298When Indian insurance license provide evidence that it has a proper and legislations are compared with the Canadian effective business organization that ensures insurance legislations, then it is evident that sound and prudent management of the India has a singular regulatory and undertaking. It must also be able to prove supervisory body whereas in Canada dual and that it has sufficient own funds to comply singular regulatory and supervisory body with the capital requirements. If both are present while in Germany presence one EU/EEA country grants an insurer of EU and BaFin plays a unique role that if authorized to carry on insurance business, once EU country grants a license to any
298Federal Financial Suppervisory Authority, https://www.bafin.de/EN/Aufsicht/VersichererPen Authorisation, (Dec 13, 2020, 2:30 P.M.) sionsfonds/Zulassung/zulassung_node_en.html CORPUS JURIS|95
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in insurance company then that company can to be consumer-friendly court alternatives. work in any other country of EU with that Moving to India, to resolve the complaints license, well it is unique because EU wants to relating to the settlement of claims on the create EEA a there are countries which have part of the insurer an ombudsman is accepted it, however in India and Canada this appointed as per the redressal of Public mechanism cannot be applied. Grievance Rules, 1998. In India, if anyone is having any complaint against the insurer then Dispute resolution regulations - Insurance that person can make a complaint before the companies who are foreign by the origin and ombudsmen within their jurisdiction in a have their branch in Canada are required to specified manner. establish procedures for dealing with complaints and are also required to appoint a However, a complaint to the insurer must designated official from their company to be have been made before and it should have responsible for its implementation. The been either rejected or not replied and should procedure must be filed the commissioner of be made within a year only. The ombudsmen the financial consumer agency of Canada and are the counsellor and mediator to both the should be made available on the insurer’s parties and make recommendations to both website or anywhere else requested. the parties. They may pass an award of compensation if the complaint is not solved If by any chance the complaint is not solved within three months. Lastly, we turn towards by the insurer, then it must be submitted to Germany to see how it deals with the the provincial laws that mandate some disputes related to insurance. organizations for the resolution of the complaints in their province or by members In Germany, the German Insurance Act is of any other complaint resolving applied to solve the disputes between the independent of the insurer. insurer and consumers. The most important mediation organization in Germany is the There are two such bodies, which are the Ombudsman Private Kranken and General Insurance OmbudService and Pflegeversicherung. Private Kranken deals secondly the OmbudService for Life & with health insurance disputes whereas Health Insurance. These services are made Versicherungsombudsmann handles all types
CORPUS JURIS|96
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in of insurance litigation cases. In 2001 the courts. These association works Insurance Ombudsman started to solve the accordingly to the statutes and to accompany disputes quickly and to reduce the burden of and advise the work of all the ombudsman.299
299Ombudsmann fur Versicherungen, The Insurance (https://www.versicherungsombudsmann.de/welco Ombudsman Association, (Dec 13, 2020, 2:50P.M.) me/). CORPUS JURIS|97
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
A comparative study is simply an act of comparing two or more things with a view of discovering something about one or all of the things being compared. In this article, the comparative study has discovered some serious questions concerning Indian banking and insurance sectors, and later the article has also provided solutions to those questions. The questions and their solutions are mentioned below.
1. Whether Indian banking model is competitive enough or not?
Yes, the Indian Banking model is competitive enough though it requires some adaptations. Indian banks work on the Universal banking model which allows banks to provide a wide range of services under one entity. This is an appreciable model but what is restricting it from evolving is firstly the lack of inter-department segregation. E.g., when 2 person goes to an Indian bank, to take two different types of a loan then both will be dealt under the same loan department. Whereas in Canada or Germany if two-person goes to a bank, to take different types of loans then they both will be sent to their concerned designated area. This decreases the workload and increases work efficiency. Secondly, the lack of branches forces the Indian banks to avoid inter-department segregation. Per capita banks are less in India and thus many Indian are deprived of the banking facilities. In 2017 there are only 14.72 bank branches per lakh300 but when we compare it to Germany or Canada then it is less thus, we should build more bank branches so that we can reach more people. This is even noticed in the insurance sector.
2. Whether the regulatory and privacy structure of India is strong enough or not?
Talking firstly about the Regulatory part of the question. In India, the banks are supervised by RBI and insurance companies are supervised by IRDA, whereas in Canada and Germany the presence of multi-level supervision is present. India should also adopt multi-level supervision this reduces the risk weightage.
300 The Global Economy.com, India: Bank Branches per 100,000 people, “The latest value from 2017 is 14.72 bank branches”,(Dec 13,2020, 3:00 P.M.) https://www.theglobaleconomy.com/India/bank_branches/ CORPUS JURIS|98
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Secondly, we will talk about privacy i.e., consumer data privacy. India is having no direct law for data protection whereas Canada and Germany have their data protection laws. Data protection is the necessity of time and India is lacking very far in this field thus losing many of its consumers. Banks and insurance sectors have many crucial pieces of information about their customers and thus losing them will be a big threat to the country too in some cases. Thus, India should bring the data protection act as early as possible.
3. How does India answer to the consumer disputes?
Consumers’ disputes can arise at any point, so it also requires a solution and in this current era, everyone wants a speedy solution. India along with Canada and Germany provides speedy dispute resolution by minimizing the use of Courts. India provides an Alternate Dispute Resolution (ADR) process under the banking Sector and Ombudsman under the Insurance sector for dispute resolution. It’s the same method that Germany and Canada use to solve their disputes. Though India provides the outside court settlement it has not been successful enough to attract many people, many people still want to use the courtroom trails. The Indian government should educate people about this process.
It is evident from this article that the India banking and insurance sector is still developing and thus have many loopholes that arise many questions as mentioned above. It can be concluded that the Indian banking and insurance sector are not safe to invest but still, some people take the risk and invest but if they use the above-mentioned solutions then they can attract more investors and will also build a strong relationship with their consumers.
CORPUS JURIS|99
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
COMPLICATIONS IN PATENTING OF BIOTECHNOLOGICAL INVENTIONS IN INDIA: AN ANALYSIS
-DEVANSHI LOHIA* AND AASTHA KEJRIWAL*
ABSTRACT
Biotechnology is undoubtedly an important tool for many researchers and industries as it is one of the most controversial field in Intellectual Property Law. One of the most significant advancements in Patent Laws has been in the field of Biotechnology. It is an area in which new products and services are created from an increasingly complex and combined collection of underlying technologies. In this paper, we will first understand the meaning of Biotechnology and Patent as to understand what Biotechnology Patent means. Then we will study about the evolution of Patent Act and various other amendments in this respect followed by a detailed study on the concept of Biotechnology Patent. The paper further talks about the subject matter of Biotechnological patent and the various requirements for obtaining patent in biotechnology with detailed study on all the aspects. Lastly, we have also dealt with a few important case laws and the need of biotechnology followed by our suggestions.
KEYWORDS: Patent, Biotechnology, Prior Art, Novelty, Non-obviousness, Utility, Morality Genes, Judiciary, India.
* Student, 5th Year, BA LLB (H)., Amity Law School Kolkata, Amity University. * Student, 5th Year, BA LLB (H)., Amity Law School Kolkata, Amity University. CORPUS JURIS|100
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION During earlier times fermentation technology was used for producing and preserving goods It is very important to understand the for a very long time. Later when meaning of these terms: ‘Biotechnology’, biotechnology produced genetically ‘Patent’ and ‘Biotechnology Patent’ before engineered or non-natural living organisms dwelling into the problem of non- and was granted patent for the same, the field obviousness in the field of biotechnology of biotechnology gained vast significance. patents. To begin with let us first understand The Patent Act was enforced in 1856 but did the meaning of the term ‘Biotechnology’ not have anything in particular regarding which can be described as use of living biotechnology protection and invention. organisms in agricultural, medical, industrial Such provisions were included after the 2002 and other technological applications301. In amendment which was done to especially other words, it is basically the application of include biotechnological, microbiological the practices and principles of engineering and biochemical processes within the and technology to life sciences. meaning or interpretation of potentially Biotechnology existed since ancient times patentable chemical processes. With the and has progressed with time as progress of biotechnology, TRIPS (Trade biotechnology inventions are necessary for Related Aspects of Intellectual Property human development. Whereas a ‘Patent’ is an Rights) agreement also provided protection exclusive right granted to a patent holder. For and regulated various biotechnology grant of any patent, three essential criteria’s inventions. Apart from providing protection must be fulfilled which are novelty, non- to plants and animals other than micro- obviousness, and industrial application. organism it also provided protection to Therefore, the term ‘Biotechnology Patent’ biological processes under a sui generis system can be defined as a patent for an invention in or existing patent system or both. Patentable the field of biology. subject matter is dealt under 302Article 27 of the TRIPs agreement. However, TRIPs was not successful in addressing the major areas
301 National Library Of Medicine, 302 Trips Agreement, S.27, 1995 (India). https://pubmed.ncbi.nlm.nih.gov/27012291/ (Last Visited On Oct. 15, 2020). CORPUS JURIS|101
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
of biotechnology research as patent eligibility India and causes confusion as it lacks a were limited to certain provisions only. proper law provisions on the subject. Considerable steps have not been taken by Biotechnology has indeed become a very the Government or Indian Patent Office to important tool for many industries and create a proper environment with clear researchers which also involves millions of guidelines for patenting of biotechnological dollars investment on the long term. Thus, an inventions in India. Some inventions are assurance is required to safeguard their granted patents while others are not thereby research output from any exploitation by any making it difficult for the inventors to create other person due to which biotechnology an invention in the biotechnological field as patent is extremely important. patentability depends on a case to case basis. Therefore, according to the researchers, Research Method there must be proper guidelines framed for dealing with biotechnological inventions and Objective of Research its patentability in India. • To understand the meaning of biotechnology patents Research Questions • To analyse role of the judiciary in granting • What is the scenario of patentability in patents to biotechnological inventions context to biotechnological patents in India? • To analyse the already existing provisions in • Whether Human Genes are a patentable the laws of the country that protect and subject matter in India? provide for biotechnology and patents. • Whether there is a need of formulating • To examine the importance and need of guidelines which specifically deals with biotechnology patents in India biotechnology patents? • What is the role of the judiciary in resolving Research Hypothesis the confusion in respect to patentability of The nature of biotechnology patents is very biotechnological patents? complex as it involves extensive research and investment. However, even after being a Scope of Research party to the TRIPS Agreement, the law This paper throws light on the concept of relating to biotech patents is still not clear in biotechnological patents in India. The CORPUS JURIS|102
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in researchers have tried to interpret every • Systematically uses a predefined set aspect in relation to such inventions and of procedures to answer the question. highlighted certain drawbacks. This paper • Collects evidence. will talk about biotechnological inventions • Produces new findings. and its patentability in depth focusing mainly on the important criterias and important EVOLUTION OF THE PATENT ACT judicial pronouncements on the same. It also consists of some suggestions which can be Patent protection in India began in the 18th implemented in the legal system for the century, where some exclusive privileges development and growth of humans and were given to the inventors of new biotechnological patents in India. manufacturers for 14 years based on the British Patent Law, 1852. However, since the Research Methodology Act was enacted without any consent of the The researchers have followed the doctrinal Sovereign, the Act was repealed by Act IX of research method and have collected data 1857303. Later this Act was also amended in from various secondary sources like articles 1859 as a new legislation was introduced for and journals in writing the research paper. granting exclusive privileges as per Act XV of The method of research adopted is primarily 1859. In 1883 an Act was passed for qualitative method of research. In this part, protection of invention which was later the author outlines the research method, the consolidated with Designs Act. Through Act methods of data collection, the research V of 1888, the jurisdiction of the Act was process and the research limitation of the further extended to other courts except from project. the High Courts of Calcutta, Bombay and Madras. The first independent patent Qualitative method is a type of scientific legislation in British India was in 1911 when research consisting of an investigation that: Indian Patent and Designs Act was introduced which replaced all previous • Seeks answers to a question, legislations on patents and designs. It led to
303History of Indian Patent System , http://www.ipindia.nic.in/history-of-indian-patent- system.htm (last visited on Oct. 16, 2020) CORPUS JURIS|103
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in grant of patent administration under the within the meaning of potentially patentable management of Controller of patents for the process as there was a huge demand for very first time in India. However, several biotechnology patent in India. Later another amendments have been made in this Act amendment was made to the Patents Act of since it was introduced and was amended in 1970 where the patents (Amendment) 1920 for securing priority. Further Ordinance, 2004 was introduced. This was amendments were made in the year 1930 and later replaced by Patents (Amendment) Act 1945. After Independence, a need was felt to in 2005 which was enforced from 1st January enact more comprehensive patent laws as the 2005. earlier Act was not sufficient due to some changes in economic conditions and politics 2002 Amendment Act in the country. Hence a committee was constituted by the Government of India for In 2002, in the case of Dimminaco AG vs. reviewing the patent law in India for ensuring Controller of Patents and Designs304, The that the patent system is at par with the Calcutta High Court introduced grant of national interest. patents to inventions where living microorganisms were present in the final Earlier the term patentable subject matter product. The Dimminaco case was regarding was not defined in the Act as it only consisted preparation of a live vaccine for safeguarding of a list of subjects which cannot be patented. poultry against Bursitis infection. Thus, this Such exceptions are uncertain and can be case was very important and is considered as vague especially in context to biotechnology a landmark case and will be dealt in depth inventions due to its complex nature. Even further in this paper. Till 2002, there was no after several amendments there was no specific provision for grant of patent with specific law concerning Biotechnology respect to biotechnology. Subsequently, invention and its protection until the 2002 another major changed happened when the amendment. The 2002 amendment was done Patents Act, 1970 was amended by the especially to include biotechnological, Patents (Amendment) Act, 2002 which biochemical and microbiological processes introduced biotechnological, microbiological
304 Dimminaco AG v. Controller of Patents and Designs, (2002) I.P.L.R. 255 (Cal). CORPUS JURIS|104
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in and biochemical processes within the ambit 2005 Amendment Act of chemical processes for grant of patent305. It replaced all the existing Patenting Rules in The 2005 Amendment Act was the third 1972 and defined the scope of biotechnology amendment made to the Patents Act of 1970. patent subject matter. The meaning of the It introduced grant of product patents in any term ‘invention’ was also altered to “any new aspect or field of technology. It also included product or process involving an inventive biotechnology but had certain exceptions for step and capable of industrial application” protection of public interest in respect to thereby removing the word ‘manner of national policy. It also lays down certain manufacture’ as mentioned in the previous inventions that cannot be considered as a Act. patentable subject matter. Clause 3 (c) and 3 (j) are important in respect to However, another issue arose as to when biotechnological inventions patentability. India had to extend patent in respect to According to Manual of Patent Practice and micro-organisms. The government also took Procedure306, relevant numbers of sequence legislative steps for extension of patent in listing must be mentioned at appropriate biotechnological subject matters to provide place under the specification in case of patent extension to agrochemical and inventions related to biotechnology. pharmaceutical products in 1995. This was done through the amendment on exclusive BIOTECHNOLOGY AND PATENTS marketing rights which was to be enforced from January 2005 and January 2000 in Biotechnology can be described as the respect to micro-organisms. Hence after the science of modifying and manipulating the 2002 amendment, the governments had to genetic structure of living matter, developing make promises that a final instalment of micro-organisms for specific uses and amendments will be done in 2004 to improving plants and animals. Biotechnology introduce comprehensive legal provisions. existed since ancient period and has progressed more and more with time. Over
305 Patents (Amendment) Act, 2002, 306http://www.ipindia.nic.in/writereaddata/Portal/I https://dipp.gov.in/sites/default/files/patentg_0.pd mages/pdf/Manual_for_Patent_Office_Practice_and f (last visited on 5.10.2020 at 5:00pm) _Procedure_.pdf (Last Visited On 15.11.2020 at 12:20 pm) CORPUS JURIS|105
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the last 30 years it has shown tremendous invention relates to use of such biological potential in the field of agriculture and materials or organisms. Biotechnology medicine and has various benefits in the field invents also include therapeutic, diagnostic of treatment of diseases. Biotechnology has and pharmaceutical applications308. also made remarkable advances in respect to quality and yield of food. It has indeed In Indian Patents Act, patentable matters are advanced with time as today it not only a not described in brief. Instead, Section 3 lays study in context to gene sequencing and down a list of inventions which cannot be manipulations but has also proved patented (as under Section 3(a) to 3(e), 3(h) revolutionary in therapeutic and diagnostic to 3(j) and 3(p). Any subject matter in order uses of biotechnology307. This new to be claimed as an invention must be development is called epigenetics which is industrially applicable, new, non-obvious and generally a study of chemical changes that must require sufficient disclosure. Thus, an affects the DNA or the protein that package invention can be patentable or non- DNA into chromosome. patentable.
Biotechnological inventions can be divided Patentable biotechnological inventions into three categories. The first being should fulfil the same criteria as applicable inventions which are related to plants, micro- for any other patent application in other organisms and animals. Micro-organisms fields of inventions and technology. include biological matters like viruses and Therefore, for acquiring patent, an invention replicas, plasmids, parts of organs, tissues, should be new. It must include an inventive organelles, cells etc. The second category of step or process and must be industrially inventions relate to the process of creation of applicable309. For example, antibodies such as any living organism or any other biological those for cancer treatment, pregnancy tests, materials. Lastly, the third category of etc can be considered as a patentable
307Himatej Reddy, Thammineni, Patenting Biotechnology ECHNOLOGY_INNOVATION_AND_LIFE_SCI Based Inventions - In India (November 22, 2012). ENCE_-_THE_INDIAN_SCENARIO/. https://ssrn.com/abstract=2198744 309 For the purposes of this Article, the terms 308 Renu Gupta & Sandeep Kumar, Patenting In "inventive step" and "capable of industrial Biotechnology Innovation and Life Science - The Indian application" may be deemed by a Member to be Scenario, Research Gate, 22, 23-24, 2017, synonymous with the terms "non-obvious" and https://www.researchgate.net/profile/Renu_Gupta6 "useful" respectively. /publication/330967602_PATENTING_IN_BIOT CORPUS JURIS|106
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in biotechnological invention. Whereas non may not want to take risks involved in non- patentable biotechnological inventions are patentable inventions. those which does not meet the required criteria for patentability. The patent law BIOTECHNOLOGICAL INVENTIONS: A describes what is considered as non- PATENT ELIGIBLE SUBJECT MATTER patentable inventions as mere discovery of the products of the nature is not considered In India, Patent is granted for an invention as an invention. Hence any discovery must which is either product or process in nature. fulfil the criteria of utility and novelty. For Section 2(1)(j) of the Patent Act, 1970 defines example, any process that mandatorily the term invention as “a new product or process involves use and destruction of human requiring an inventive step and is capable of industrial embryos. applications.”310.
Need for Biotechnological Patents The Patent Act, 1970 does not list matters which are patentable in nature, but Section 3 Biotechnology is always evolving and of the Act lays down a list of subjects which developing which makes its patentability are not inventions and cannot be patentable. more ambiguous and uncertain. Hence, since Therefore, for a patent to be granted, the Biotechnology is of a complex nature and invention should not fall under the list involves intensive investment and research, provided in Section 3. There are exclusions patent protection must be provided to such under Section 3 that deal with and are inventions. Providing protection to their applicable to biotech innovations, including research and invention will encourage such those related to genes and diagnostics. innovators to make more inventions as Sections 3(c), 3(i) and 3(j) are related to our protection will ensure that it is not exploited study. by others. Biotechnology protection in India is very essential as it will help India to Section 3(c) of the Indian Patent Act forbids compete globally. Patentable innovations patents which are a discovery of any living also attract investors as otherwise investors thing occurring in nature. According to
310 Patents Act, 1970, Section 2(1)(j) No. 39, Acts of Parliament, 1970 (India) CORPUS JURIS|107
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in section 3(i) of the Patents Act “diagnostic free them from disease or to improve their methods are not patentable inventions”. economic value or that of their products311. Further, Section 3(j) of the Act states that plants and animals in whole or in any part While evaluating the extraordinary decisions thereof, including seeds, varieties, organisms in the case of Mayo Collaborative Services v. and basically biological processes for the Prometheus Laboratories, Inc. and development and propagation of plants and Association for Molecular Pathology v. animals, are not subject to patent protection. Myriad Genetics312, it was held that every As per Section 3, genetically modified multi- isolated gene / DNA sequence does not exist cellular species, including plants, animals and in nature on its own and can be patented human beings, and their parts thereof, cannot under the Act since it does not fall under the be patented in India. law of nature. However, in India human beings and embryonic stem cells are not Gene and DNA sequences whose functions patentable under the Act. In addition, the can be disclosed can be patented in India. patentability of medical treatment techniques The processes for the cloning of human in India is also banned. beings or animals for alteration of the germ line, the genetic identification of humans and Product Patent Unpatentable Under livestock, the use of human or animal Section 3(J) embryos are not patentable for any reason because they are against morality and public Various patents have been granted for the order. Sec. 3(i) comprises a list of non- manufacturing process of transgenic plants patentable inventions in India which includes or animals, as a mechanism consisting of any process for the medicinal, surgical, either technological or human intervention curative, prophylactic, diagnostic, therapeutic and cannot be treated as simply a biological or other treatment of human beings or any process. As a result, transgenic plants and method of similar treatment of animals to animals will not be deemed to be a patentable
311Manual of Patent Practice Office and Procedure, 312Mayo Collaborative Services v. Prometheus Version 3.0, Laboratories, Inc. and Association for Molecular http://www.ipindia.nic.in/writereaddata/Portal/Ima Pathology v. Myriad Genetics, 569 U.S. 576 (2013) ges/pdf/Manual_for_Patent_Office_Practice_and_P rocedure_.pdf (last visited on Oct 02, 2020, 12:10pm) CORPUS JURIS|108
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in subject matter, however, the process of production was patentable, even though the production of the same will be considered as final product contained a living organism. patentable313. This landmark decision paved the way for the Microorganisms As A Patentable Subject patentability of a variety of other innovations Matter involving living microorganisms. In the Indian sense, this ruling has helped the A landmark judgement of the High Court of biotechnological industry to flourish. Calcutta in the case of Dimminaco AG Vs. Controller Of Patents314 developed a Human Genes As A Patentable Subject benchmark in the field of microbiological Matter research on 15 January 2001, prior to the reform of the Patents (Amendment) Act in Firstly, it is important to analyse the fact that 2002, 1970. It was concerned with the whether Section 3(j) incorporates within its patentability of ‘living end-products of the ambit human genes? Section 3(j) prohibits in biotechnological process.’ whole or in any part the patentability of any animal. The scope of this sub section is very Dimminaco AG was a Swiss Company and vague as it is unclear whether human beings had developed an attenuated vaccine for fall within the ambit of mammal within the against an infectious disease in poultry names animal kingdom. Bursitis and had applied for an application for a process patent for the same. The The Indian Guidelines assert the fact that for Controller of Patent and Designs refused the ex vivo trained autologous NK T cells for the proposal on the grounds of an end product treatment of immune-related disorder in a involving a living substance, the production mammalian subject falls within the scope of technique being merely by way of a natural section 3(j). On the basis of an interview with process. Conversely, on appeal the Calcutta some of them Patent examiners of the Indian High Court held that the process of Patent Office tend to have an unanimity that
313 GuIdelines for examination, 314 Dimminaco AG v. Controller Of Patents, (2002) https://www.epo.org/law-practice/legal- I.P.L.R. 255 (Cal) texts/html/guIdelines/e/g_ii_5_4.htm (last visited on Oct 3, 2020) CORPUS JURIS|109
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in paragraph 3(j) is not valid at molecular / have been permanently extracted from the cellular level that involve genes; however, no body, and henceforth, diagnostic methods reason explanation has been given for the with DNA are patentable. same315. Stem Cells As Patentable Subject Matter However, the background of Section 3 indicates that the intent of the interpretation Stem Cells falls within the words ‘any other of the sequence of words - human, animals part thereof’ under Section 3(j) of the Patent and plants used in contiguity in Section 3(b) Act, 1970 and hence cannot be patented. agree to the fact that human beings are However, in vitro methods for the excluded from the ambit of animal and hence differentiation, isolation / purification and outside the purview of Section 3(j). cultivation of stem cells may qualify as a patentable subject matter, given that it is Consequently, an isolated naturally occurring novel, has an inventive step and has industrial gene is not patentable however, where it is a applicability. genetically engineered gene, it can be regarded as a novel, innovative gene with an In addition, the invention of stem cells can industrial application and is therefore also be opposed as under Section 3(b) of the patentable in the light of S.3(i) of the act Act, which provides that the primary, which provides for the patenting of intended or commercial use of an invention diagnostic methods. which may be contrary to public order or morality or cause serious harm to human, Accordingly, the Draft Manual of Patent animal or plant life , health or the Practice and Procedure, 2008316 prohibits environment is not an invention and hence, diagnostic methods applied to the human or cannot be patented317. animal body. However, it involves diagnostic methods conducted on tissues or fluids that
315Elizabeth Siew-Kuan NG, “Patenting Human Genes: _Procedure_.pdf (last visited on 15.10.2020 at Wherein lies the balance between private rights and public access 12:30pm) in India and the United States?” 11 IJLT 26 (2015) 317Lakshminath, A. "STEM CELL PATENTING- 316http://www.ipindia.nic.in/writereaddata/Portal/I LAW AND POLICY." Journal of the Indian Law mages/pdf/Manual_for_Patent_Office_Practice_and Institute 49, 179-93, (2007). CORPUS JURIS|110
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
REQUIREMENTS FOR OBTAINING patent application with complete specification, i.e., the BIOTECHNOLOGY PATENTS subject matter has not fallen in public domain or that it does not form part of the state of the art”318. Novelty Article 27.3(b) of the TRIPs requires The term novelty or a novel invention is governments to exclude plants, animals and something that is new and one that has not ‘essentially biological processes’ from the been revealed to the public in prior art or is provision of Article 27.1 that patents be anticipated by prior art. Prior art means made available in all areas of technology, with anything that has been written, published or isolated species unlikely to come under the otherwise has been revealed to the public on limits of the loophole. As most of the or before the date of the filing of a patent biotechnological innovations are a result of a application. The Indian Patent Act, 1970 natural process and are inherently present in does not define the term novel or novelty and living beings, they fall within the ambit of has no provisions relating to novelty under discoveries and hence, cannot be patented. biotechnological inventions. However, it is However, the Manual on Patent Practices stated that for the purpose of determining and Procedures issued by the Indian Patent novelty n biotechnological inventions the Office makes it clear that biological materials prior art is to be interpreted as prescribed in such as rDNA, plasmids and processes for provisions of Section 13 read with Sections the production of such materials are 29 to 34 of the Act. Section 2(1)(j) of the Act patentable in so long as they are created by on the Act specifies that in order for a patent material human interference. Several patents to be granted, the invention must be new and were issued for isolated gene sequences in original and should not form a part of already India and such sequences were deemed novel existing prior art. Section 2(1)(l) of the Act by the patent office in the light of their defines the term “new invention” as “any biological counterparts. Before 2001, living invention or technology which has not been anticipated organisms or the procedure to produce living by publication in any document or used in the country organisms was not patentable but the or elsewhere in the world before the date of filing of Calcutta High Court altered the decision and
318 Patents Act, 1970, Section 2(1)(l) No. 39, Acts of Parliament, 1970 (India) CORPUS JURIS|111
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the process of producing living organisms patent application is rejected, hence not was patentable. granted. In the case of Bilcare Ltd. v. Amartara Pvt. Ltd.320, the Delhi High Court Inventive Step / Non-Obviousness held that the question of inventive step/non- obviousness has to be decided objectively Section 2(1)(ja) of the Indian Patent Act, and one test which can be applicable to all 1970 defines inventive step as “a feature of an circumstances or cases cannot be formulated. invention that involves technical advance as compared to the existing knowledge or having economic Industrial applicability / utility significance or both and that makes the invention not obvious to a person skilled in the art”. The Industrial applicability is one of the essential provision of Article 27.1 of the TRIPs criteria to be fulfilled for a patent to be Agreement implies that inventions should granted. Section 2(1)(ac) of the Patent Act require an inventive step, which means that defines the term ‘capable of industrial the prior art, if existing, the invention should application’ in relation to invention as “the not be obvious to person who is skilled in invention is capable of being made or used in that field. According to the Manual of Patent an industry”. In addition, Section 64(1)(g) of Office Practice and Procedure319, isolated the Act states that a patent can be gene and protein sequences will be deemed cancelled/revoked if the invention is not to have an inventive step in the light of their useful. naturally occurring counterparts. The Indian Patent Law specifies that when a patent In order to be patentable, the invention must application is filed, the patent examiner must be capable of industrial applicability and investigate to determine if there is any prior should have a commercial use. The art on that subject matter. If it is found that specifications should disclose the usefulness the invention could be anticipated by or utility and the industrial applicability of the publication in India or elsewhere before the inventions in a proper and reliable manner application is filed by the applicant, the
319 Manual of Patent Practice and Procedure, 320Bilcare Ltd. v. Amartara Pvt. Ltd 2007 (34) PTC http://www.ipindia.nic.in/writereaddata/Portal/Ima 419(Del) ges/pdf/Manual_for_Patent_Office_Practice_and_P rocedure_.pdf (last visited on 03.10.2020 at 6:15pm) CORPUS JURIS|112
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in unless the usefulness of the invention is Morality already known either expressly or impliedly. According to Section 3(b) of the Patent Act, According to the Manual of Patent Office 1970, “an invention the primary or intended use or Practice and Procedure, 2005, an industrial commercial exploitation of which could be contrary to application of an invention will be confirmed public order or morality or which causes serious if the following criteria must be fulfilled: prejudice to human, animal or plant life or health or to the environment” cannot be patented322. a) It can be made; b) It can be used in at least one field of Since Biotechnology deals with living operation; and subjects and includes the modification of the c) It can be reproduced as many times as genetic materials of the organism. necessary with the same characteristics. Such a transition can or may have a profound According to the Guidelines for Examination effect on the environment or humans, of Biotechnology Applications for Patent it is animal, or plant life, or may entail serious stated that in cases of gene sequences, it can moral issues. be argued that, whatever the creativity involved in the discovery of a gene sequence, Reasonable caution should therefore be one cannot have a patent for it or a protein taken when reviewing technologies in encoded by it until it is revealed how it can be relation to their primary or intended used. application or commercial exploitation, and the subject-matter should be carefully It is therefore important to determine considered so as not to be contrary to public whether the claimed invention has a useful policy, morality or cause significant harm to function and whether the specification human, animal or plant life or to health or the describes some practical way of using it321. environment.
321GuIdelines For Examination of Biotechnology GuIdelinesManuals/1_38_1_4-biotech- Applications for Patent, guIdelines.pdf, last visited on 03.10.2020 at 10:50pm http://www.ipindia.nic.in/writereaddata/Portal/IPO 322 Patents Act, 1970, Section 3(b), No 39, Acts of Parliament, 1970 (India). CORPUS JURIS|113
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
JUDICIAL RESPONSE Chakrabarty decision in the United States. he Assistant Patent Controller noted that "in Dimminaco A.G. V. Controller Of India, no patent has been granted for any Patents And Designs323 process of preparation of a living organism to date. In India, there are no major developments of case law with respect to biotechnological In the Controller's view, if such a process inventions, as the industry is in its inception. becomes patentable, "there will be further This case is one of the leading cases in problems as foreign sophisticated biotechnology patent law, where for the first technologies will have to be patented in time the use of the biotechnology patent has India. The Assistant Controller also argued been demonstrated. The invention that the framers of India's Patents Act, 1970, concerned the preparation of an infectious had relied on the 1959 recommendation of vaccine- bursitis. The vaccine was effective the government commissioned Ayyangar from preventing poultry from the bursitis Committee 325that “invention” should be infection. Initially, the Patent office denied defined in a narrow way. the patent application on the basis that the claim did not constitute an invention. The Appellant Dimminaco a rgued that the However, the utility of the invention was not patent office had neither cited any prior art questioned. While more than 20 years later against the alleged procedure nor challenged after the decision of the US Supreme Court the use of the end-product vaccine and the in Diamond v. Chakrabarty324, this decision process should be patentable. After the was released. The Indian commentators arguments by both the parties, the High considered the case to be an epochal Court of Calcutta interpreted the definition judgement and overturned the Indian Patent of the term “manufacture” as present in Office’s long- standing policy of denying Section 2(1)(j) of the Act because it not such claims, and opens the door to defined in the Act and stated the dictionary biotechnological patenting in India, as did the meaning "manufacture" or its use in a
323 Dimminaco A.G. v. Controller Of Patents And 325http://www.ipindia.nic.in/writereaddata/Portal/I Designs, (2002) I.P.L.R 255 (Cal). mages/pdf/1959_Justice_N_R_Ayyangar_committee 324 Diamond v Chakrabarty, 447 U.S. 303 (1980) _report.pdf (last visited on 19.11.2020 at 5:30pm) CORPUS JURIS|114
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in specific trade or company must be chemical substances using such micro- recognised. organisms are patentable.
In addition, in order to decide whether or not Speaking Roses International Inc. V. a particular manufacturing process must be Controller-General Of Patents & Anr326 patented, is to see if the invention results in creation of a good that can be sold from one The petitioners, Speaking Roses man to another because the purchase and sale International Inc., applied on 19 September method claimed was a patentable invention. 2002 for a patent on "providing an image on an organic commodity, being flowers." In overturning the decision of the Assistant Subsequently, they received both the First Controller, the court held that there was Examination Report (FER) and the Second evidence that the Indian Patent Office had Examination Report (SER), and they replied already granted a few patents for and complied with both reports. However, biotechnological processes producing a living their application was rejected by the end product. The Assistant Controller had Respondents of 5 major grounds. "not acted on the right standards" by denying Dimminaco's application on the ground that The first ground of refusal was that the it could not be considered a "manufacturer" application contravened Section 3(j) of the because it contained a living virus in the final Patents Act, 1970. As per sub-clause (j), such product. exclusion applies to ‘plants and animals in whole or in any part thereof other than The Court also held that biological materials micro-organisms but including seeds, such as recombinant DNA, plasmids and varieties and species and basically biological their manufacturing processes are patentable processes for the production or reproduction if they are created through material human of plants and animals.’ interference. In addition, processes relating to micro-organisms or the creation of Accordingly, this sub-clause does not permit the grant of a patent for plants or for any
326 Speaking Roses International Inc. v. Controller- General Of Patents & Anr, 2007 (109) Bom LR 63. CORPUS JURIS|115
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in biological processes for the production or printing. The Court held that the petitioners reproduction of plants. The Court held that were the first to apply for a patent in respect the application for patent was not for flowers of a method, and thus met the criteria of or organic items, it was for the provision for novelty and inventive step. an illustration of an organic product. It was also not a plant that was sought to be The remaining 3 grounds of objection patented. In addition, such an image was to included the allegation that the arguments of be generated by a mechanical process, not a the petitioners did not adequately describe biological one. Consequently, the claim did the invention, the lack of clarification of the not fall within the meaning and scope of title of the patented product and the Section 3(j). similarity of the title with the claims made by the petitioners. In that regard, the Court was The second ground of rejection of the of the opinion that the petitioners sought to application was that previously three other obtain a patent on the mechanical method of inventors had been granted patents for the imprinting the message by means of a pad same reason and, in the light of that, the printing on an organic product and, thus, the petitioner's claim lacked the requisite title of their application, “Providing an Image innovative step to apply for a patent. The on an organic product,” appeared to be petitioners, however, argued that their accurate, succinct and definite. The Court product, was significantly different from that acknowledged that the applicant's illustrative of the patents and used the pad / roller as a description of the process appeared to be transfer medium, which did not result in any entirely compatible with its application for a such harm. process patent as opposed to a product patent. Again, another inventor labelled the image by cutting and modifying the surface of the The Court also held that the petitioners did flower with a computer-controlled laser not request that their claims be amended in beam, which caused the content of the certain circumstances and declined to organic plant to be altered and quickly entertain further arguments from the deteriorated. However, no such alteration respondent as to the possibility of extending was caused by the petitioners' method of pad the reach of the claim. At the conclusion of
CORPUS JURIS|116
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the case, the Court noted that a patent under Section 3(j) of the Patent Act of 1970, application could not be denied solely on the as held by the Division of the Delhi High basis that only one of the patent proprietors Court. Nuziveedu claimed that the NAS was had filed the application. Finally, the Court merely a chemical composition which could set aside the order of the respondent not be replicated and not a man-made rejecting the patent application. creative microorganism capable of industrial application. In that case, the Supreme Court Monsanto Technology Llc V. Nuziveedu set aside the order of the division bench and & Ors327 restored the order of the single bench and referred the matter back to the bench of the The plaintiff argued that their patent on a High Court of Delhi, to be determined on the man-made, chemical product named basis of expert advice and facts, which held NAS(Nucleotide Acid Sequence) containing that the Indian Patent Office had rightly the gene Bacillus thuringiensis (Bt gene) considered the NAS claims and that the capable of destroying bollworms when parties remained bound to their sub-lease. inserted in cotton was not an infringement
327 Monsanto Technology Llc V. Nuziveedu & Ors, AIR 2019 SC. 559 CORPUS JURIS|117
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
SUGGESTIONS & CONCLUSION
Suggestions
We think that biotechnology is indeed very important for development of humans and hence its protection is equally important for which the following factors can be considered:
• India should utilize its benefits from its rich-bio resources and provisions must be more strengthened for protecting patent in biotechnological inventions.
• New technological systems and existing knowledge must be combined together in a decentralized way for better development.
• India must adapt to challenges caused by the constant evolving technological environment of the world.
• One of the major problems is the ease of copying technologies which is becoming more frequent due to advancement of new technologies for which more specific laws should be made and implemented for better protection.
• An understanding for research in biotechnological inventions should be stimulated and encouraged more for making significant investments in technological and scientific inventions for long term benefits.
• A separate chapter in the Indian Patent Act, 1970 relating to patentability of biotechnological inventions should be included so as to encourage inventions and reduce chaos.
CORPUS JURIS|118
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Conclusion
In today’s time, it is very crucial to patent biotechnological inventions as its nature is already complex. Biotechnology is evolving at a very high level. In addition to this thorough development, there are several legal and moral concerns related to the patentability of the same. In India, the patent office tackles various patent applications for determining whether it is an inventive step or not before grant of patent as there are a number of factors involved for determining grant of patent. Therefore, for patenting any invention it must fulfil the essential criteria as stated earlier in this paper.
Although, the Indian Patents Act lays down a list of inventions which cannot be patented, it does not describe briefly what all can be patented. Hence, since the nature of biotechnological inventions are already complex and patent laws in respect to biotechnology is uncertain, it is very important to grant patent for such inventions. This will encourage the industries and inventors and provide them security for their time and effort which is necessary for growth and development. As seen earlier, the Dimminaco case is a great example for showing administrative and judicial appreciation in respect to need or importance of biotechnology patent. The concerns relating to the patenting of biological material are relatively new to India.
Standardized procedure has yet to be adequately developed regarding the patenting or non-patenting of biological innovations. Inventions are also subject to the fulfilment of reasonably broad requirements. It should be noted that the patenting of biological material in India is still determined most frequently on a case-by - case basis. Moreover, as India is one of the rich bio-diversity countries, it would therefore be wise to protect biotechnological innovations as this would help Indian biotechnology research compete globally. India needs to reap the full benefits of its rich bio-resources by providing for patent rights in biotechnological advances and inventions.
CORPUS JURIS|119
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Thus, we can conclude by saying that Biotechnology and its patentability is very important as is it extremely essential to protect and safeguard the interest of inventors for better development and growth and therefore guidelines should be formulated for the better protection and to reduce chaos.
CORPUS JURIS|120
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONTEMPORARY POSITION OF SAME-SEX MARRIAGE IN INDIA
-AYUSHI TANDON* & MANVI GARG*
ABSTRACT
For time immemorial, conception of marriage is a union between a male and a female centered on procreation but the same has changed with the evolution of our Social Construct. The focus of this research article is to explore the marital laws in India while advocating the importance for legal recognition of same sex marriage. Marriage laws only recognize heterosexual unions, thereby debarring homosexual couples of the rights and privileges enjoyed by the former. Legal recognition may be attained by minor amendment in the Personal laws and the Special Marriage Act, 1954. Further, this research article examines the legal position of same sex marriage and various petitions challenging the marital laws concerning same sex marriage. Right to marry a person constitutes as a fundamental right under Article 21 of the Indian Constitution and the same should not be discriminated on the basis of gender. In finality, this research article also explores other jurisdictions wherein same sex marriage has been recognized. The road to right the wrong for LGBTIQA+ community does not halt at decriminalizing Section 377 of the Indian Penal Code, 1860 but by granting equal rights given to other genders as well.
KEYWORDS: Same-Sex Marriage, Intersectionality, LGBTIQA+, Personal Law, Legality, Article 21.
* Student, 4th Year, Symbiosis Law School Noida. * Student, 4th Year, BA LLB, GLS Law College, Ahemdabad. CORPUS JURIS|121
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION what create a family, and families are the most basic social unit upon which society is In India, marriage is considered as an built. Both marriage and family create status important social institution which regulates roles that are sanctioned by society. If we talk and control the life of mankind. It recognizes about regarding the perspective of same sex the bond of faith, love, emotion and support marriage then it is harmonious within the between a couple who provide each other328. institution of marriage because we all know However, in our society, this bond has always in this growing world of science it is not been acknowledged between the opposite sex necessary for the institution of family consist but not between the same sex. The right of of a male and a female and their children, homosexual couples within this institution same sex couple do make their own families. has always been excluded. There have been Though society is not ready to except this various instances where the social customs kind of relation, but it would be possible if changed with the passage of time like we try to adopt this change as there is no prohibition of child marriage act329, dowry harm to our societal values. prohibition330 and abolition of sati with the help of social reformers and the legislation Intersectionality against LGBTIQA+ rendering a current need of law to recognize same sex marriage under the ambit of The term Intersectionality means marriage as an institute. discrimination against particular individual or group by social categorization on the basis of The Sociologists defined the institution of race, class and gender. This particular marriage and family as the key structure in framework with the concept of unequal most of the society331. Most of them are treatment to a particular group is affected by interested in the relationship between the number of discriminations. Intersectionality is institution of marriage and the institution of the theory that overlap of various social family because, historically, marriages are identities contributes to the specific type of
328 Gunjan Jain 9 (2019) Significance of Marriage as 330 The Dowry Prohibition Act 1961 Social Institution in Indian English Writings, social 331 Marriage and family, 2nd Canadian edition, chapter values & society 1 (1) :17-22 14 329 The Prohibition of Child Marriage Act 2006 http://legislative.gov.in/sites/default/files/A2007- 06 CORPUS JURIS|122
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in systemic oppression and discrimination struck down alongside decriminalizing experienced by an individual. consensual sexual act between the same sex. In this case, the Supreme Court gave the In our society the transgender community has reasoning that the right of the LGBTIA+ always been seen as an inferior and neglected community cannot be discriminated on the community. The person belongs to this basis of their sexual orientation and also LGBTIA+ has to deal with homophobia. This criminalizing the same act is a violation of Intersectionality identity often generates a article 14334, 15335, 19336 and 21337 of the Indian feeling that someone does not completely constitution. The Supreme Court, in the case belong in one group or another, and can lead of Shakti Vahini v. Union of India338also to isolation, depression and other mental recognized that Fundamental Right to Life health issues. At every phase homosexuals includes right to marry a person of their own becomes a victim of Intersectionality. There choice. Thus, on the aforementioned are many trans-people who were never premises, why should a person be excluded accepted by their own family just because their who is attracted or wanting to marry a person identity is not normal to accept in a society. of their own sex? The same exclusion is The real problem is first to accept the identity against constitutional right as well as a human of LGBTQIA+ before legalizing their right339 In spite of number of petitions filed relationship within the institution of marriage. in the Courts for the recognition of homosexual relationships, they were not The ray of hope for the beginning of considered but disregarded solely because marriage equality arises when the recent our Country’s marital law never recognized judgment of the Supreme Court was passed same sex marriages. Thereafter in a plethora in the case of Navtej Singh Johar & Ors. v. of High Courts, this issue was taken with a Union of India & Ors.332In the different reasoning to this matter such as the aforementioned case, which the part of Delhi High Court who, in its judgment, ruled section 377 of the I.P.C333 was unanimously that that the amendment in the personal act
332Navtej Singh Johar&Ors. v. Union of India &Ors., 336The Constitution of India 1950, article 19 (2018) 10 S.C.C. 1 337The Constitution of India 1950, article 21 333The Indian Penal Code 1860, section 377. 338Shakti Vahini v. Union of India, (2018) 7 S.C.C. 192. 334The Constitution of India 1950, article 14 339 Universal declaration of Human Right, art 16 335The Constitution of India 1950, article 15 CORPUS JURIS|123
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in has to be matter of parliament kind not of a gender. It is only the human bodies that court kind. possess a gender. According to Section 5 of the Hindu Marriage Act, 1955340it essentially SAME SEX MARRIAGE: RECOGNITION states that the marriage may be solemnized UNDER INDIAN MARITAL LAWS between any two Hindus. This, in turn, means that a person has to be a Hindu and The legal recognition of marriage to the same could possibly belong to any gender. sex couple is an ongoing debate in our Nowhere in the Act has it been mentioned country. After the Johar’s judgment, the that a marriage is valid and can be solemnized LGBTIA+ community is now focusing on only between a male and a female. This act the same as it is high time to grant them the has a gender-neutral approach in some legal status of marriage similarly to that of aspects but not wholly. The only exception in heterosexual couples enjoy. Further, such the aforementioned statute is the use of grant of legal recognition may also be terms like groom and bride, which can be considered under Hindu Marriage Act, 1955. interpreted for the same sex couple wherein one person can be a bride and other a The personal law which governs the marriage bridegroom. The Christian Marriage Act between Hindus, Sikhs, Jains and Buddhists provides that the age of the man shall be are governed by Hindu Marriage Act, 1955 twenty-one and the age of the woman whereas Christians and Muslims have their eighteen341.Marriage in Muslims are governed own Personal Law. A special law exists by The Muslim Personal Law (Shariat) wherein a couple may get their marriage Application Act, 1937, according to this act registered irrespective of their marriage or marriage is often considered a civil contract where they do not wish to solemnize their between two parties i.e. man and woman for marriage as per their religions' rituals: Special the purpose of procreation. In Islam, Marriage Act, 1954. marriage acts as an outlet for sexual needs and so that no one becomes a slave of In the Hindu scriptures marriage is defined as another. Though the provisions of personal the union of ‘two souls’ and the same laws envisage the marriage of heterosexual scriptures also define that a soul has no union, but some are able to recognize same
340 The Hindu Marriage Act 1955, Section 5. 341 Christian Marriage Act 1872, S. 60. CORPUS JURIS|124
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in sex marriage like in Hindu Marriage Act, recognize the same sex marriage under 1955 as mostly none provisions except the Hindu personal law, the amendment under term used as bride and groom, of the act special marriage act is equally appreciable as encounters this type of marriage. To make this Act is secular and a person belonging to same sex marriage legal the solution which any religion or no religion can get their has to be performed is an interpretation of an marriage registered. Act by an Indian judiciary also with an amendment to recognize same sex LEGALITY OF SAME-SEX MARRIAGE IN relationship. Also, there is the further INDIA reasoning of the long-standing judgment of the Bombay High Court in State of Bombay In the recent judgment344 pertaining to partly v. NarasuAppa Mali342, holding that decriminalization of Section 377 Justice personal laws cannot be tested against the Chandrachud stated : “[I]t is difficult to right a touchstone of Fundamental Rights. wrong by history. But we can set the course for the future. This case involves much more than The Special Marriage Act, 1954 is a secular decriminalizing homosexuality. It is about people law which permits the solemnization of any wanting to live with dignity.”345 Even though kind of marriage irrespective of the person’s sexual intercourse is decriminalized, no legal religion. This is special kind of legislation for recognition is given to same sex marriage in people who do not wish to bind themselves India. Certain efforts have been made by with their particular religion. According to Madras High Court346 to expand the this Act, it does not recognize the definition of bride under Hindu Marriage Act homosexual marriages as Section 4(c)of the so as to include transwomen. The court Act343defines the marriageable age criteria for stated that bride does not only mean males and females only. However, it is not someone born as a woman but also include a that difficult to amend this provision and transsexual. grant the same sex relationship its legal status under the aforementioned Statue. If not
342 (1951) 53 Bom LR 779. 345 Supra note 329. 343 The Special Marriage Act, Section 4(c) 346 Arun Kumar v. Inspector General of Madras, 2019 344 Supra note 328. S.C.C. OnLine Mad 8779. CORPUS JURIS|125
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Recently, three petitions347 have been filed in The same was denied on the ground that Delhi High Court to fill the lacuna in there was no guideline provided to solemnize personal laws as well as Special Marriage Act marriage of a same-sex couple. Aggrieved by alongside Foreign Marriage Act so as to the refusal, the petitioner challenged the include homosexual marriage. In the case of provisions of the Act on the principles of Abhijit Iyer Mitra v. Union of India,348 the equality and dignity enshrined under Article provisions of Hindu Marriage Act were 14, 15, 19 and 211 of the Constitution of challenged. The contention made by the India. Petitioner was that the condition laid down in Section 5 of the Hindu Marriage Act There have been multiple instances where requires two Hindus which can constitute homosexual people go abroad where same both homosexual and heterosexual persons. sex marriage is celebrated to get married and The Petition was opposed by Solicitor then try to register their marriage under the General of India who contended that same Foreign Marriage Act, 1969. Similarly, the sex marriage “…run contrary to the provisions Petitioners352, Vaibhav Jain and Parag Vijay, which are already in place in our society. Our values married in United States in 2017 and do not recognize a marriage, which is sacrosanct, registered their marriage under Foreign between two people of same-sex marriage.”349 Marriage Act, 1969. However, the same was rejected by Consulate General of India, New The other two petitions were filed by Kavita York on grounds of their sexual orientation. Arora and Ankita Khanna350 and Vaibhav The reasoning provided by the General was Jain & Parag Vijay351 in Delhi High Court. In there are no legal provisions to provide the former case, the petitioners applied for service of Certificate/ Registration of solemnization of marriage under Special Marriage to a same-sex couple. They Marriage Act, 1954 to the Marriage Officer. challenged the provisions of the Act on the
347 Abhijit Iyer Mitra v. Union of India, W.P.(C) 6371 Times: https://www.hindustantimes.com/india- of 2020. Kavita Arora &Anr v. Union of India & Anr, news/our-values-don-t-recognise-same-sex-marriage- W.P.(C) 7692 of 2020. Vaibhav Jain & Anr v. Union centre-tells-delhi-hc/story- of India & Anr, W.P.(C) 7657 of 2020. ZdhMdcfWsLHmf9inXZAvhK.html 348 Abhijit Iyer Mitra v. Union of India, W.P.(C) 6371 350 Kavita arora &Anr. V. Union of India & Anr., of 2020. W.P.(C) 7692 of 2020 349 Banka, R. (2020, September 14). Our values don't 351 Vaibhav Jain & Anr. v. Union of India & Anr, recognise same-sex marriage: Centre tells Delhi HC. W.P.(C) 7657 of 2020. Retrieved November 24, 2020, from Hindustan 352 Ibid. CORPUS JURIS|126
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in ground of discrimination and violation of heterosexual unions. To obtain relief, the fundamental rights before the Delhi High petition filed a writ petition. The petition Court. Both the petitions were heard argues that the Act discriminates between together and an Order issuing notice to the heterosexual and homosexual people as respondents was passed by Delhi High Court Section 4 and Schedules 2-4 of the Act have in both the cases. The Order also questioned a heterosexual undertone stating that the lacunae in the petitions as the same does marriage is a union between male and a not challenge the concept of marriage under female, thereby violating their rights under Personal Laws as well as it does not recognize Article 19 of the Constitution of India. The same sex marriage which was the main issue same Petition also states that the for denying applications for registration of discrimination further affects the rights and marriage. To which the argument presented privileges of homosexual couples as right to by the counsel for petitioners was neither of maintenance, inheritance, nominee, and so the Acts rely on any customary law, also on, as they are not available to the couple. Special Marriage Act was enacted to provide “Expression of love, growth of one’s marriage outside the customary laws. personality within a relationship and development of an identity of a union will be Furthermore, a couple Nikesh Usha incomplete if the law refuses to recognize Pushkaran and Sonu MS filed a civil writ same-sex marriages and thereby it affects the petition in Kerala High Court353for legal Article 19(1) rights of the petitioners recognition of same sex marriage under guaranteed by Article 19(1)(a) of the Special Marriage Act, 1956. The Petitioners Constitution of India.”354 got married in a secret ceremony and decided to solemnize their marriage under Special PERSPECTIVE OF OTHER COUNTRIES ON Marriage Act, 1954 as no religious temple LEGAL RECOGNITION OF SAME SEX authorities would issue them Marriage MARRIAGE Certificate. However, they were unable to register their marriage under the Special Several International Organizations promote Marriage Act as the Act only recognizes and support rights of LGBTQIA+
353 https://www.livelaw.in/pdf_upload/pdf_upload- 354 Ibid. 369544.pdf. CORPUS JURIS|127
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in community alongside same sex marriages. Massachusetts and Connecticut. In the International Human Rights Law, Presidency of Bill Clinton, a federal law was Yogyakarta Principle 24355 states that “everyone passed named Defense of Marriage Act has the right to found a family, regardless of sexual (DOMA)358 which defined marriage between orientation, gender identity, gender expression or sex two heterosexual people, thereby denying characteristics…”.Article 16356 of the same-sex marriage. This further denied International Covenant on Civil and Political benefits to same sex couples. In 2013, Rights (ICCPR) prohibits any limitationon Supreme Court amended Section 3 of the the right to marriage. Presently, there are 29 Defense of Marriage Act which earlier countries that have legally recognized same- restricted same sex couples to claim estate of sex marriage. The journey commenced in their late spouses.359 During the tenure of 2001 when Netherlands sanctioned President Obama on June 26, 2015, the homosexual marriage followed by Belgium, Supreme Court, in the case of Obergefell v. Canada, South Africa, Norway, Sweden, Hodges,360 granted rights to same sex couples Iceland, Portugal, Argentina, Uruguay, New to marry by lifting the ban on all the Zealand, France, Brazil, England alongside remaining thirteen states in U.S.A. other countries. Most recently, on May 26, 2020, Costa Rica became the first Central Status in United Kingdom American country to legalize same sex marriage.357 In 2004, the Civil Partnership Act361 was implemented that allowed same sex couples Status in United States of America to legally register their relationship as partnership. Civil partnership has similar There were very divergent views on same sex effects to that of marriage. The partners marriage by different States in the U.S.A. enjoys similar rights and obligations as a Earlier, there were only two States that married couple such as right to inherit, recognized same sex marriage, i.e. protection from domestic abuse, financial
355 The Yogyakarta Principles 2007, Principle 24. 359 United States v. Windsor, 2013 S.C.C. OnLine U.S. 356 International Covenant on Civil and Political Rights S.C. 86. 1976, Article 16. 360 Obergefell v. Hodges, 2015 S.C.C. OnLine U.S. 357 https://www.imprentanacional.go.cr/pub- S.C. 6. boletin/2018/11/bol_26_11_2018.pdf. 361 Civil Partnership Act, 2004 358 Defense of Marriage Act, 1996. CORPUS JURIS|128
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in obligation, etc, however, legally, it is not It demonstrates the importance we attach to marriage. In 2012, proposals were made to being able to live freely.365 enable same sex couples marry which resulted in introduction of Marriage (same In the same year, Scotland amended366 the sex couples) Bill. The Bill received Royal definition of spouse under Marriage and Civil assent362 in 2013 rendering it applicable to Partnership Act 2014 so as to include same England and Wales. The Act allows same sex sex marriage. Furthermore, the British marriage to be conducted by religious Government asked367 the Overseas organizations that opt to do so. Couples can Territories to legalize same sex marriage. convert their civil partnership into Also, recently, the U.K. Parliament marriage363, individuals can convert their legal legalized368 same-sex marriage in Northern gender364, and so on. Maria Miller, Woman Ireland which was the last country to bar and Equalities Minister of United Kingdom, homosexual marriage. stated that: Status in Europe Marriage is the bedrock of our society and now irrespective of sexuality everyone in Europe is the only continent that has British society can make that maximum number369of countries recognizing commitment…Making marriage available to same sex marriage. Netherlands370, all couples demonstrates our society’s respect Belgium371, Denmark372, Finland373, France374, for all individuals regardless of their sexuality.
362https://publications.parliament.uk/pa/ld201314/l 368 Northern Ireland(Executive Formation etc)Act dhansrd/text/130717-0001.htm#13071765000369. 2019. 363 Marriage (Same Sex Couples) Act, 2013, Section 9. 369 ILGA World: Lucas Ramon Mendos, State- 364 Marriage (Same Sex Couples) Act, 2013, Section 12. Sponsored Homophobia 2019: Global Legislation 365 Same sex Marriage becomes law, Overview Update (Geneva; ILGA, December 2019). GOVERNMENT OF UK (Nov. 7, 2020, 2:06 AM), 370 Amendments to Book 1 of the Civil Code in https://www.gov.uk/government/news/same-sex- connection with the opening of marriage to persons marriage-becomes-law. of the same sex (Marriage Opening Act) 26672, (1999). 366 Marriage and Civil Partnership(Scotland) Act, 2014. https://zoek.officielebekendmakingen.nl/kst-26672- 367 (2019). Global Britain and the British Overseas 1.html. Territories: Resetting the relationship. United 371 Civil Code Act 1804, Article 143. Kingdom: Parliamentary Copyright House of 372 Law No. 532, 2012, Section 2. Commons 2019. 373 Marriage Act(156/2015), Section 1. https://publications.parliament.uk/pa/cm201719/c 374 Civil Code, 1804, Article 143. mselect/cmfaff/1464/1464.pdf CORPUS JURIS|129
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Germany375, Iceland376, Ireland377, argued that marriage is between two people Luxembourg378, Malta379, Norway380, and not just male and female. Other Portugal381, Spain382, Sweden383 and United countries like Armenia386 though do not Kingdom384 have passed legislations celebrate same sex marriage but marriages declaring homosexual marriages valid. In performed in abroad are valid. European 2019, the Constitutional Court in Austria385 Union, in the 2013 Report on Human Rights repealed the provision which discriminated and Democracy, encouraged its member between heterosexual and same sex couples States to recognize same-sex marriage as a by providing access to marriage and political, social and human and civil rights registered partnership to both the couples. issue.387 The countries favoring same sex marriage
375http://dip21.bundestag.de/dip21/btd/18/066/18 384 Marriage(Same-sex couples) Act 2013, section 1(1). 06665.pdf 385https://www.vfgh.gv.at/downlaods/VfGH_Entsc 376 Bill on Amendments to the Marriage Act and other heIdung_G_258- Acts and on the repeal of the Act on Confirmed 2017_ua_Ehe_gleichgeschlechtl_Paare.pdf. Cohabitation (one Marriage Act).138,(2010). 386 Family Code 2005, Article 143. https://www.althingi.is/altext/138/s/0836.html. 387 EU Annual Report on Human Rights and 377 Marriage Act, 2015. Democracy in the World in 2012. (2020, May 21). 378 Civil Code, Article 143. Retrieved November 25, 2020, from European Union: 379 Marriage Act and other laws (Amendment) Act, https://data.consilium.europa.eu/doc/document/ST 2017. %209431%202013%20ADD%201%20REV%201/E 380 Marriage Act, 1993, Section 1. N/pdf. 381 Law No 9/2010, Article 1. 382 Civil Code (Amendment), 2005, Article 44(2). 383 Marriage Code (Amendment), 2009. CORPUS JURIS|130
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
After winning a milestone with regards to the LGBTIQA+ community through partially striking down section 377, it is the right time to grant the statutory status to same sex marriages and legalize their relationship that can be enjoyed similarly the way heterosexual couples enjoy. With all the provisions considered, whether it is the Human Rights Charter or the Constitution, the right to marry has no gender specification. This right to marry restricts homosexual couples to marry, thereby defeating its own objective. It is well-known that our State is influenced by the modern culture. Thus, considering the same, rather than being hesitant to not accept this kind of marriage that does not disrespect the Country’s culture, ethics or values, the need to embrace it arises as it protects the sovereignty and autonomy of its own people that is of quintessence importance.
There are multiple rights and privileges such as medical insurance benefits, health and life insurances, joint bank account and many more as it requires a status of marriage to become a nominee to other, therefore enjoyed by heterosexual couples and devoid same sex couples solely because the society and the law never accept them and also do not grant them requisite marital status. The approaches to legalize the same sex marriage is that the constitutional courts must keep in mind their own experience, international treaties and covenants, and the doctrine of flexibility related to LGBTIA+ and their rights and the changes and amendments into personal laws such as making them gender neutral and using the term spouse in spite of man and woman so that homosexual couple marriage could also get its status. The Hon’ble Supreme Court held in Joseph Shine v. Union of India388 that the constitutional values of liberty, dignity, equality, and non- discrimination also extend to the institution of marriage. The sole basis of Marriage is not only procreation as there are couples who are unable to bear children, such as older couples or infertile couples they are not excluded from the institution of marriage then why homosexual couples are excluded.
It is pertinent to understand that our very own constitution is ready to accept same sex marriage. But the only problem is with the society that follows their supposed values and ethics. Therefore, they need to follow and be abreast with the changing dynamics of our social strata.
388 (2019) 3 SCC 3. CORPUS JURIS|131
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CYBERBULLYING AND RISE OF ‘THE RIGHT TO BE FORGOTTEN’
-SHOBICKA J B* & SHREYAS N R*
ABSTRACT
Cyberbullying is a criminal offense that is attracting heightened levels of attention these days. It leads to extreme psychological breakdown of the victims that causes low self-esteem which may lead to suicide. In the internet ruling era, it is important that the Fundamental Rights of every individual must be protected. Everyone has the Right to Privacy and the Right to Mental Health under Article 21 of the Indian Constitution. In India, it has become a common crime and a threat to many adolescents.
Bullying and harassing people online has become a new tradition. Hiding behind the screen has become a new game that everyone is willing to play. Laughing at someone’s misery has become a new sadistic character that everyone has adapted. Posting humiliating contents, hacking someone’s account, posting vulgar comments, threatening the victim, stalking, child pornography, etc., are examples of cyberbullying.
Even though the bully behind the screen is punished, the victim gets deeply affected by the damage caused. The victim gets scared for being ‘public’ again and comes to the verge of disappearing somewhere and that’s where the Right to be Forgotten comes in hand. The Right to be Forgotten acts as a balance between the Right to Privacy and the Right to Freedom of speech and expression. This Right comes under the Personal Data Protection Bill, 2019, which is yet to be finalized by the Indian Parliament.
This Right leads to the erasing of the personal, misleading, and embarrassing information about the victim from the internet. The victim is entitled to seek every remedy possible to be on social media again without any track that would possibly remind any of his/her past. The law on other hand, protects people from being bullied with various provisions through various acts which will be explained
* Student, 5th Year, BBA LLB (H)., SASTRA (Deemed to be University). * Student, 5th Year, B Com. LLB (H)., SASTRA (Deemed to be University). CORPUS JURIS|132
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
in this article. This article explores the data protection system, its threats, cyberbullying and the knowledge about the Right to be Forgotten.
KEYWORDS: Cyberbullying, Right to be Forgotten, Privacy Rights, the Personal Data Protection Bill.
CORPUS JURIS|133
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION prefer to suffer in silence. This article covers the impacts of cyberbullying and the The Cyberbullying is the use of technology to solutions to it. The Right to be Forgotten and bully a person by means of electronic its importance is explained in the wider sense. communication like sending typical messages which are intimidating and threatening in CYBERBULLYING IN INDIA: A THREAT nature. TO THE YOUNGER GENERATION:
When a person is being harassed or being We have addressed how cyberbullying affects trolled over the internet for his/her the younger generations in our country in the appearance, race, color, gender, caste etc., it previous paragraph. There are many factors amounts to cyberbullying. Wherever or which lead to bullying in accordance with the whenever we hear the term cyberbullying, we customs and cultures. Generally, there is no can relate it a lot with “trolling”. In the world age disparity in the bullying, but among the of cyber space, we may encounter many youngsters there are a many people who are incidents which lead some people to find affected in their childhood and are continued themselves either a victim or a bully to to be bullied throughout their adulthood too. cyberbullying. The teenagers in India, who are in their We come across day-to-day news which budding stage during high school, are likely shows that children between 12 and 13 are to be mentally affected by the bullying. Since being harassed over the social media a lot of teens do not open up about their platforms like Instagram, Facebook, mental status or what kind of torture, they Snapchat, etc. The children are targeted undergo from the bullying they face, parents highly because they are afraid to come out are also unaware of this and hence the and speak about the abuse they are facing relationships between parents and their over the internet. Some of us may have been children are affected. Only few legal actions accidently victimized to cyberbullying. The are available against cyberbullying. The bully end result is mental trauma and depression. walks free with very few punishments after Some people might talk about the trauma the tremendous damage he/she has that they are dealing with. Some people committed. The major form of bullying that
CORPUS JURIS|134
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in our teenagers face is from the form of trolling Fundamental Rights of the individual are about their appearance. This happens in violated. every country but for the past five years there is an enormous increase in the bullying of The Right to Privacy is the Right under one’s teenagers and adults across all social media personal liberty which has been clarified as platforms. This strong increase shows that both an actionable claim and a Fundamental how irresponsible we have been as citizens in Right389. The personal liberty of the person order to ask or make necessary amends to and the freedom of expression and all his induce the Government to update very strict freedom movements are said to be forms of laws and punishments to the Fundamental Rights which gives rise to Right perpetrators. to privacy390. The Right to privacy is a Fundamental Right391 and it cannot be VIOLATION OF THE CONSTITUTION violated. If any individual feels that their Fundamental Right have been violated. Every citizen in India has the Right to Health under Article 21 of the Constitution which SURVIVE AND EXIST includes mental health as well. The bullying leads to depression and a state of loneliness If cyberbullying is easy, then surviving which affects the mental health of the through the bullying should also be easy. As individuals. Affecting someone’s mental per the say, ‘Where there is a will, there is a health through internet is no less than a way’ there should be a solution to the crime serious crime. Leaking someone’s private committed. Here are some instances of information through internet and spreading cyberbullying, hatred comments, spreading misinformation about someone amounts to serious set of A case in the capital of our country was crimes. Every individual has the Right to registered which amounted to cyberbullying. privacy and the Right to good mental health, The major issue where some students of class when it comes to cyberbullying these 11 formed a group called ‘BOIS Locker
389 R.Rajagopal V. Union of India 6 SCC 1994 SC 632. 391 Govind v. State of M.P., 3 SCR 1975 SC 946. 390 District Registrar and Collector, Hyderabad and another v. Canara Bank and another SC 2004. CORPUS JURIS|135
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Room (Live Law , 2020)’ on a social media The term revenge pornography refers to the platform. The admin of the group was 18 uploading the sexually explicit images and years old and some members of the group abusive contents of someone who has were only 15 years of age. They started broken off the relationship. sending messages that contained obscene images and messages regarding their own Sometimes the victim is harassed and classmates392. This incident created a blackmailed for doing something that the widespread threat amongst all the teenagers victim does not want to do. The major threat who were using social media platforms and in the concept of revenge pornography is that for all the parents to look after their children the bully uses the morphed images of the who were using social media platforms victim or any intimate videos of the victim properly. and harasses the victim by blackmailing to do things which are unimaginable. Due to the Another important case was seen and fear of facing the society and the family, the registered in Kerala. The major issues of the victim chooses to end one’s life by the way of case were that an 18- year -old college student suicide. But the bully is not tried or pressed was selling fish for her studies. The selling of charges against the act that he/she has fish by the college student created a committed. Revenge pornography should be widespread trolling. She was from a poor seen as a sensitive and a serious cyber-crime, family and was trying to afford the fee of her stricter punishments and stricter laws should college by selling fish. Due to the widespread be implemented in order to curb these troll and the harassment, she faced a lot of activities and should protect the victims who problems. The Government of Kerala took have been affected. up the initiative of not letting the bullies to target her again and again. The Kerala Chief LAWS RECOGNIZING CYBER CRIMES Minister ordered police to take action regarding the trolling that had happened over Even though there is no particular law for the internet. cyber-crimes in India, there are certain Sections in the Indian Penal Code and the
392 Archana Sharma vs State of Nct Of Delhi & Ors, WP(CRL) 3202/2020 & C.M. 11128/2020. CORPUS JURIS|136
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Information Technology Act which deals possible cybercrime activities. Here Section with certain issues regarding cyberbullying. 67398 states about publishing or transmitting The Indian Penal Code speaks about the act any obscene material to women in the of sexual harassment, stalking, etc. electronic form leads to a form of cyber- crime. Section 67A399 states about publishing Section 354A393 states about the abusive any sexually explicit content to another remarks made about a person which in turn person through electronic means will also leads to sexually harassing a person. Section amount to a form of cyber-crime and is 354D394 talks about ‘stalking’. Stalking means punishable under the Information that when a person is unwantedly followed by Technology Act, 2000. Section 66E400 states another person where the person who that the invasion of privacy on social media follows the victim is not known either in a platform and is punishable under the Act. virtual or a physical form. Section 509395 These are some of the provisions under states about the word gestures, by way of which the bullies can be punished for the which a person tries to outrage the modesty offences that they have committed. The of the women. Section 507396 states about victims on the other hand are left with the criminally intimidating a person by way of history of the public shaming. communication. Section 354-C397 states about voyeurism which means that when the THE RIGHT TO BE FORGOTTEN victim is either viewed or captured without the permission of the person in his/her Some people who have experienced a huge private act. This section deals with the major scam or who have been bullied in a worst way part of invasion of privacy which in turn goes might think of escaping somewhere away into the cyber-crime. from the scar of their history. The Right to be Forgotten is a Right of a person to get his As like the Indian Penal Code the personal data removed from the internet Information Technology Act, 2000 too states about the invasion of privacy which leads to
393 Indian Penal Code 1860 Section 354A. 397 Indian Penal Code 1860 Section 354C. 394 Indian Penal Code 1860 Section 354D. 398 Information Technology Act 2000 Section 67. 395 Indian Penal Code 1860 Section 509. 399 Information Technology Act 2000 Section 67A. 396 Indian Penal Code 1860 Section 507. 400 Information Technology Act 2000 Section 66E. CORPUS JURIS|137
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in source401. It is a vanishing power of people to the Right to request the Google search get disappeared from the internet sources engine to taken down the links relevant to the and various directories they intend to. private information of them. This is where the Right to be Forgotten emerged and was We use various search engines to enlighten us considered to be evolving accordingly in with many data which we find useful in India with the personal data protection bill. different forms, but sometimes it will not be the same, what we find there about us. The The Karnataka HC case regarding the marital removal of data depends upon the nature and dispute was an evolution of Right to be sensitivity of the subject and the way the Forgotten in India where the petitioner was subject has been portrayed and how it affects the father of girl in the dispute, he requested the subject in public life. Right to freedom of for the removal of his daughter’s name in the speech and expression is good. But when it copy of the order which is violating her Right affects and violates the privacy of someone to privacy. He thought his daughter’s that cannot be tolerated. Many have been reputation could be damaged by mentioning victimized to cyberbullying ant their personal her name in a criminal case. Justice Bypa details have been publicly went viral and left Reddy stated that “This would be in line with a scar in their social media platform. The the trend in the Western countries where they Right to be Forgotten gives way to erase all follow this as a matter of rule "Right to be those deep hurts caused by cyberbullying and Forgotten" in sensitive cases involving public shaming. The way people are treated women in general and highly sensitive cases in social media and public platform should be involving rape or affecting the modesty and proper which would not offend others. reputation of the person concerned.”403 The Right to be Forgotten became familiar in ({Name Redacted} vs The Registrar General the case of Google Spain Vs Mario Costeja on 23 January, 2017) Gonzalez402 in 2014 where the European Court of justice ruled that their citizens have
401 64 STAN. L. REV. ONLINE 88 (September 29, 403 (WRIT PETITION No.62038 OF 2016 (GM- 2020) https://review.law.stanford.edu/wp- RES)) content/uploads/sites/3/2012/02/64-SLRO-88.pdf. https://indiankanoon.org/doc/12577154/ 402 Google Spain Vs Mario Costeja Gonzalez, Case C-131/12.. CORPUS JURIS|138
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
In Kerala High court case404, the court ruled done. This online method of addressing in favour of ‘Right to be Forgotten’ where the grievances is said to be massive online work petitioner was seeking directions from the which provides micro justice406. In India, the court to ensure that their identity was foundation for the dispute resolving protected. They asked for the protection of mechanisms in cyberbullying should be laid their privacy under Article 21 of the firmly. The Right to be Forgotten should be Constitution. addressed as a suggestive method for solving disputes and to be implemented as the Following these cases, many were filed Alternate Dispute Resolution (ADR) before the court of law and some were mechanism in India. dismissed405 (Dharamraj Bhanushankar Dave vs State Of Gujarat & 5 , 2017) and some The way people are being treated on the were pending before the court. This Right to internet should be within the limits there are be Forgotten is a branch that grown from the entitled to. No person shall be bullied or Right to privacy which is the basic treated badly. The Right to be Forgotten acts Fundamental Right. as a sword that could cut down the damages done to the person’s privacy in the internet. The Right to be Forgotten can be used as a grievance mechanism in the case of Whereas in India, the Personal Data cyberbullying. Considering the requests made Protection Bill, 2019 drafted by Indian for the removal of the personal data, and parliament comes with Right to be addressing it constitutes a part of the Forgotten. The Section 20 of the draft speaks mechanism. The use of Personal Data about the Right to be Forgotten407. This is yet Protection forum in the grievance addressing to be analysed by the Joint Parliamentary mechanism should be implemented and Committee (JPC) and to be implemented highly valued. The disputes resolving before the next budget session. methods are not necessarily to be a high profile, the online mode of services can be
404 Civil Writ Petition no.9748 of 2016. 406 Review of International and European Law 2016, 405 C/SCA/1854/2015 p. 289-306. https://indiankanoon.org/doc/156866860/ 407 The Personal Data Protection Bill, 2019. CORPUS JURIS|139
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The Right to be Forgotten is not just a simple name of the criminal convicted to murder Right to be held under the data protection cannot be erased in accordance with his bill. It is as important as the Fundamental privacy. People have every Right to know the Right, the Right to privacy. The Right to be details of the murderer so that they can be Forgotten acts as a medicine to the victims aware. The Right to be Forgotten should be which they survive pass those shames and to recognised accordingly with the nature of the live beyond their past. subject of the case and the victim afflicted to it. The Right to be Forgotten cannot be a blanket to all the people, for example the
CORPUS JURIS|140
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
Cyberbullying is a serious offence which is punished according to the verge of the crime committed. The major aspect of this article is about how cyberbullying influences people and how the Right to be Forgotten can be used as a solution. The Right to be Forgotten is one’s life jacket where the victims can be strong and guilt free. Cyberbullying is a disaster making crime where the damage is high and long lasting.
The remedy to this offense is a separate act should be passed which focuses on the bullying crimes. The punishment to the bullies behind the screen should be given according to the intense of the outcome abide by the victims so that the crime can never be committed again. The Constitution and penal code states various provisions which the cyberbullying is punished. Still people are not comfortable reaching the law. Their hurdles should be reviewed, and they must find an easy way to reach help and seek justice in the hands of law.
CORPUS JURIS|141
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
GLOBAL ARMS TRADE AND ITS EFFECT ON CONFLICT ZONES WITH EMPHASIS ON THE APPLICABILITY OF THE ARMS TRADE TREATY TOWARDS NON-STATE ACTORS
-MANAVED NAMBIAR*
ABSTRACT
The present paper analyzes global arms trade and its effect on conflict zones, especially underscoring the applicability of the fledgling Arms Trade Treaty towards non-state actors. A summary introduction is given as the precursor to the analysis, and the scope of global arms trade is discussed in detail. The issue of arms transfers to non-state actors is then discussed, with the associated limitations in defining what constitutes a non-state actor. The possibilities of legislation concerning non-state actors are analyzed and put forth as possible answers to the problem at hand. Consequently, the paper then deals with the impact of arms transfers on human rights, especially focusing on the rights of children. The export patterns of multiple states are analyzed with a view to identify possibilities of improvement.
The paper then looks at the Arms Trade Treaty from a historical standpoint, glancing at the pertinent events which lead to the treaty as it is today. Subsequently, the primary analysis of the present paper arrives in the form of a study of the Arms Trade Treaty and the legal ramifications that arise forthwith. Certain associated themes of the Arms Trade Treaty are also dealt with in detail, including the dual-use conundrum. The reputational concerns are then investigated in detail in the backdrop of existing state roles, and the question of the existence of ‘Responsibility to Protect’ is analyzed. After a legislative appraisal of pertinent articles within the Arms Trade Treaty, the theme of risk assessment is looked at, underlining the lacunae which open up the treaty for misuse and misinterpretation. The author then offers both short-term and long-term recommendations to ensure eventual fulfilment of
* International Affairs Professional, M.A. in Law and Diplomacy, The Fletcher School of Law and Diplomacy, Medford. CORPUS JURIS|142
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
treaty goals. The paper ends with a conclusion, detailing the potential framework for the future of global arms trade.
KEYWORDS: Arms Trade Treaty, Non-state Actors, Human Rights, Dual use Conundrum, Responsibility to Protect, United Nations General Assembly.
CORPUS JURIS|143
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION At the same time, the world continues to The author focuses primarily on the future watch in horror as conventional weapons are afforded by the Arms Trade Treaty with a used to wage war and cause immeasurable special emphasis on the role of non-state human suffering. The incessant cross-border actors in conflict zones and the explicit and flow of arms continues to serve as a brazen implicit duties of state parties in the treaty. reminder of the lacunae in implementation of The treaty in question establishes common the Arms Trade Treaty.409 standards for the international trade of conventional weapons while seeking to Conventional arms are the legitimate building reduce illicit arms trade. Not only does it blocks of armed forces around the world. promote accountability and transparency Article 51 of the United Nations Charter410, during arms transfers, it also aims to reduce which speaks about the right of the state to human suffering caused by illegal and self-defense, is often invoked to justify the irresponsible arms transfers, which improve corresponding right of a state to get involved regional and global security. in the arms trade.411 Conventional arms trade can also signify deepening friendships and The genesis of the Arms Trade Treaty is rife strengthen existing alliances between states. with setback. However, after a couple of As a result, there exists a fundamental crisis decades of incessant advocacy, treaty of a state’s need and right to acquire and supporters moved a motion in the United export arms and the potential consequences Nations General Assembly for approval. On of the same. 2nd April 2013, the Arms Trade Treaty408 was endorsed by a vote of 156-3, with 23 Despite their commitment to curtail abstentions. It opened for signature on 3rd irresponsible arms trade, many states parties June 2013 and came into force on 23rd peddle arms to governments that commit December 2014. human rights abuses. The figures regarding
408 The Arms Trade Treaty, (2014). 411 7621st meeting of the United Nations Security 409 Report of the Secretary-General on the Council, 15 February, (2016). implementation of Security Council resolution 2231, Item titled ‘non-proliferation’ in United Nations (2015). Security Council resolution 2231, (2015). 410 U.N. Charter, Art. 51, (1945). CORPUS JURIS|144
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the global spending on arms reveal a very About 2.5 million people have died in armed morbid picture. The five largest exporters conflicts since 1989, according to estimates between 2015 to 2019 were the United States, by the Uppsala Conflict Data Program.416 Russia, France, Germany, and China.412 The scale of the trade of arms points us towards the glaringly obvious lacunae in the The United States and Russia together count regulatory aspects of international arms for more than half of the total arms exports. exports and imports, which will be analyzed The Stockholm International Peace Research in subsequent sections. Institute413, hereinafter known as SIPRI, has identified 68 states as exporters of major NON-STATE ACTORS IN INTERNATIONAL arms from 2015 to 2019. The top 25 arms ARMS TRADE exporters account for 99% of the world’s arms export in 2019. The United States of The issue of arms transfers to non-state America was the top arms exporter in 2015– actors is especially complex417, for we must 19 and delivered major arms to almost a first define what might constitute a non-state hundred states.414 Saudi Arabia remains the actor.418 The following is a non-exhaustive largest recipient of arms from the United list of non-state actors with the propensity to States. The top five importers were Saudi possess weapons. Arabia, India, Egypt, Australia, and China, accounting for 36% of total arms imports in Armed Freedom Warlords Rebel Fighters 2015-2019. In fact, five of the world’s top ten Groups arms importers were in the Middle East and Civilian Paramilitaries Terrorists included Saudi Arabia, Egypt, the United Militia Criminal Black Market Political Arab Emirates, Iraq, and Qatar.415 Groups Arms Traders Parties Private Arms Traders Civilians Security Companies
412 SIPRI Arms Transfers Database (March 9th, 2020), 417 Tamara Enomoto, Controlling Arms Transfers to Non- https://www.sipri.org/ State Actors: From the Emergence of the Sovereign-State 413 Id. System to the Present, THE JOURNAL OF RESEARCH 414 Id. INSTITUTE FOR THE HISTORY OF GLOBAL 415 Id. ARMS TRANSFER, (January 2017). 416 Uppsala Conflict Data Program (UCDP) (May 418 Owen Greene and Ors., Developing International 2020), Norms to Restrict SALW Transfers to Non-State Actors, https://ucdp.uu.se/ BITING THE BULLET, (January 2006). CORPUS JURIS|145
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Many states believe that providing weaponry sovereignty and territoriality. Providing arms to any recipient other than a state should be for non-state groups leads to interference in discouraged while others believe it is a useful the sovereignty of the home-state and tool to assert their global influence and moral consequently challenges state authority. ground. Arms transfers by Australia to non- Modern warfare involves higher participation state actors in Yemen is an example of such from non-state actors, and the regulation of belligerency.419 arms in contemporary times is important.
While transfers to non-state actors are The need for a framework regulating frowned upon by many scholars, many weapons transfers to non-state actors was powers practice it without abandon, by understood early on, and the inception of helping groups which serve their interests or such a framework began in July 1998, when with whom they share a common identity. 21 state representatives met at Oslo, and a An example is the transfer of American-made team headed by the Canadian government weapons through Saudi Arabia to al Qaeda- proposed a ‘Global Convention Prohibiting linked fighters and other factions waging war the International Transfer of Military Small in Yemen.420 States might supply arms to Arms and Light Weapons to Non-State non-state actors to ossify their plea for self- Actors’. The proposal from Oslo emphasized determination. In a case involving the United the need to ensure that transfers of military- States and Nicaragua at the International grade small arms and light weapons are better Court of Justice, it was held that the U.S. had regulated to prevent their diversion into the violated international law by supporting the wrong hands.422 Unfortunately, the scope Contras in their rebellion against the would not be wide enough to prevent Sandinistas.421 In contemporary times, the conventional trade in weaponry. 423 Nagorno-Karabakh conflict is a pertinent study in the inherent conflict between
419 Ben Doherty, The Guardian, Australia’s arms deals 422 Discussion Paper, A proposed global convention ignoring ‘gross violations of human rights’, (September 2019). prohibiting the international transfer of military small arms and 420 Nima Elbagir & Ors., CNN, Sold to an ally – lost to light weapons to non-state actors, Canadian Mission to the an enemy, (November 2020). UN in New York, (December 1998). 421 Case Concerning Military and Paramilitary Activities In 423 Bonomo, J., Stealing the Sword: Limiting Terrorist Use and Against Nicaragua; Merits, International Court of of Advanced Conventional Weapons, Santa Monica: RAND Justice (ICJ), (27 June 1986). Corporation, (2007). CORPUS JURIS|146
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The strongest effort to control arms transfer state actor from manufacturing, acquiring, to non-state actors came up during the possessing, developing, transporting, discussions pertaining to the creation of the transferring, or using nuclear, chemical, or Arms Trade Treaty. Many states sought a ban biological weapons. on transfers to non-state actors but couldn’t drum up enough support since there was no The Arms Trade Treaty specifies that agreement on what constitutes ‘terrorism’.424 rigorous risk assessment is essential, but does not create any limitations on trade. A state Furthermore, it is also ambiguous on how which might be sympathetic to a terrorist one would deal with entities that have been organization can simply go ahead with any recognized as independent states by the transaction. Given the controversy on the United Nations, but which are not member subject of transfers to armed groups, there is states themselves, i.e. State of Palestine, high probability that will be deliberately Republic of Kosovo et al. The answer lies ignored. However, in the long run, it is better with the Security Council resolution 1267,425 to avoid subjects that might lead to a which includes an obligation to maintain a list stalemate in negotiations at the cost of a of individuals, entities, and groups associated larger goal.428 with al Qaeda.426 The names provided by member states could serve as a useful model While black market smuggling continues in determining a ‘non-state actor’. unabated, individual state stockpiles are scrutinized more heavily. Recent studies have One can also refer to the United Nations shown that armed groups involved in conflict Security Council Resolution 1540,427 which rely mostly on domestic sources, especially requires states to put in place ‘appropriate’ through poorly secured government and ‘effective’ laws that prohibit any non- holdings.429 Perhaps the initial focus should
424 Louis Charbonneau, Reuters, U.N. overwhelmingly 427 United Nations Security Council Resolution approves global arms trade treaty, Reuters, (April 2013). S/RES/1540 (2004). https://www.reuters.com/article/us-arms- 428 P. Policzer & Yankey-Wayne, Armed Groups, and the treatyun/u-n-overwhelmingly-approves-global-arms- Arms Trade Treaty: Challenges and Opportunities, ARMED tradetreaty-IdUSBRE9310MN20130403 GROUPS PROJECT WORKING PAPER 12, (April 425 United Nations Security Council Resolution 2009). S/RES/1267 (1999). 429 T. Jackson, From Under Their Noses: Rebel Groups’ 426 Id. Arms Acquisition and the Importance of Leakages from State [http://www.un.org/sc/committees/1267/aq_sancti Stockpiles, INTERNATIONAL STUDIES ons_list.shtml] last accessed July 2020. PERSPECTIVES, (2010). CORPUS JURIS|147
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in be to secure state stockpiles to ensure that displaced. We have seen terrorist attacks dissemination to non-state actors does not committed by non-state actors, which have continue. only been exacerbated by the global increase in violent crime. It has been recognized that uncontrolled arms flow to non-state actors contributes to In all instances of humanitarian discord, conflict and violence around the world.430 To small arms and light weapons are a common quote Robbie Sabel, international law can be theme. Availability of these weapons fuel instructive on the rights and obligations of organized crime and terrorism endanger the non-state actors involved in armed conflict, rule of law, and lead to the violation of but there exists no instrument in human rights and international humanitarian contemporary times that requires weapons to law. This easy availability of varying weapons be transferred exclusively to states.431 and ammunition due to unregulated markets portends humanitarian crises. IMPACT ON HUMAN RIGHTS The transfer of conventional arms augurs a Every country has a legitimate right to serious impact on the enjoyment of the full maintain an arsenal for domestic security. spectrum of human rights. Pertinent ones However, it is when this security doctrine is include the right to life432, the right to liberty misinterpreted that there is unrestrained and security433, the right to freedom of proliferation of weapons. International expression434, protection against enforced conflicts have escalated in recent years, disappearances435, freedom from torture or disproportionately affecting millions of cruel, inhuman or degrading treatment436, and civilian lives, leaving them dead, injured, or
430 A Clapham, Human Rights Obligations of Non- “Officials of States parties violate the right to personal State Actors, OXFORD UNIVERSITY PRESS, security when they unjustifiably inflict bodily injury”. (2006). 434 Universal Declaration of Human Rights, Art. 20 431 R Sabel, Weapons to non-state armed groups-back to (1), (1948). Westphalia? DISARMAMENT FORUM, (2008). International Covenant on Civil and Political Rights, 432 Universal Declaration of Human Rights, Art. 3, Art. 21 & Art. 22, (1966). (1948). 435 International Convention for the Protection of All International Covenant on Civil and Political Rights, Persons from Enforced Disappearance, (2010). Art. 6 (1), (1966). 436 International Covenant on Civil and Political 433 International Covenant on Civil and Political Rights, Art. 7, (1966). Rights, Art. 9, (1966). CORPUS JURIS|148
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in excessive use of force in violation of human one of the largest arms manufacturers, is not rights.437 a party to this convention.
Economic, Social, and Cultural438 rights are When it comes to civilian involvement in profoundly impacted by the transfer of firearms, the Human Rights Council in its conventional arms. Transfers to conflict resolution 29/10, requested the High zones can lead to destruction of state Commissioner to submit a report on the institutions and breakdown of essential regulation of the civilian acquisition, services. Internally Displaced Peoples and possession and use of firearms. In 2019, the refugees, numbering millions, live without Human Rights Council adopted a access to basic services. Conventional resolution441 presented by Peru and Ecuador. weapons have been used to bring down health and education services. Heavy handed In the United States of America, which is the policing in residential areas also prolongs largest exporter of arms, the Leahy laws442 cessation of essential services. prohibit security assistance to foreign security force units that have violated human Children are amongst the most vulnerable rights. However, the State Department section affected by the wanton arms trade.439 doesn’t currently vet arms recipients for The United Nations Convention on the human rights abuses, rendering the law Rights of the Child440 is a human rights treaty useless. The Congress is surrounded by a which sets out the civil, political, economic, powerful arms export lobby and a weak social, health, and cultural rights of children. legislature, and there is no success when it It is interesting to note that the United States,
Convention Against Torture and Other Cruel, 438 International Covenant on Economic, Social and Inhuman or Degrading Treatment or Punishment, Cultural Rights, (1976). (1987). 439 DavId P Southall, Empty Arms: The effect of Arms 437 United Nations Basic Principles on the Use of Trade on Women and Children, US NATIONAL Force and Firearms, (1990). LIBRARY OF MEDICINE, (December 2002). Human Rights Committee, General Comment No. 35 on 440 The United Nations Convention on the Rights of Liberty and Security of Person, UN Doc the Child, (1989). CCPR/C/GC/35, (2014). 441 Resolution adopted by the Human Rights Council ‘States should prevent and redress unjustifiable use of on Impact of arms transfers on human rights, force in law enforcement and protect their A/HRC/41/L.22/Rev.1, (2019). populations against abuses by private security forces, 442 Leahy Law Fact Sheet, BUREAU OF and against the risks posed by excessive availability of DEMOCRACY, HUMAN RIGHTS, AND LABOR, firearms’. (January 2019). CORPUS JURIS|149
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in comes to blocking arms sales on the basis of the ability to shape the pursuits, preferences, human rights concerns. and even conduct of the world.444 Research has shown that influencer campaigns have I submit that countries that threaten to actually been most successful when backed economically pivot away from the United by positive foreign policy tools.445 States are bluffing. The quality of arms, the desire for interoperability with United States Arms transfers also impact human rights systems, and the hallmark ‘total package’ when they are made to governments who approach of the United States, which might use them to commit domestic human considers the comprehensive needs for rights atrocities. The persecution of Uighurs operating and maintaining a weapons system in the People’s Republic of China is a upfront, are all important reasons. contemporary example. This risk is exacerbated when the transfer is made to For the arms industry in the United States, fragile states or states with weak regulation imposing humane conditions for sale will not pertaining to civilian acquisition of firearms. appreciably affect revenue. Research has also shown that job creation through defense States have an innate responsibility towards, spending is fewer when compared to and human rights concerns must take investments in clean energy, infrastructure, precedence over profit in arms trade. Even education, and health care.443 though many treaties pertaining to human rights are themselves not fully crystallized as Policymakers, however, often rely on another a norm, states should adapt a preventive popular trope to rationalize problematic approach aimed at stopping arms transfers sales, by saying that it is a tool for the United when there is a risk of these arms being used States to shape the pursuits and ideology of for serious human rights violations. the world, and provide the United States with
443 HeIdi Garrett-Peltier, Job Opportunity Cost of War, 445 Trevor Thrall & Caroline Dorminey, Risky Business: WATSON INSTITUTE OF INTERNATIONAL The Role of Arms Sales in U.S. Foreign Policy, POLICY AND PUBLIC AFFAIRS, (May 2017). ANALYSIS NO.836 CATO INSTITUTE, (March 444 Nicholas Taber, Commercial Interests, Political Influence, 2018). and the Arms Trade, AMERICAN UNIVERSITY [https://www.cato.org/publications/policy- JOURNAL, (2013). analysis/risky-business-role-arms-sales-us-foreign- policy] last accessed July 2020. CORPUS JURIS|150
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
HISTORY OF ARMS TRADE REGULATION Deliberations concerning arms control returned to the global stage for the second To understand the contemporary time only in the 1970s. This time, public significance of global arms trade, it is support was an important catalyst, as the essential to study its chronological American masses raised a hue and cry over progression. I posit that prior to Vietnam. President Jimmy Carter447 tried to contemporary arms trade legislation, initiate global restraints on arms trade, but international spotlight was delegated to arms they devolved into bilateral talks with the trade only on a few occasions, during which Soviet Union, since European powers attempts to negotiate an agreement failed and declined to participate. the policy of non-interference was strengthened. The final failure came with the end of the Cold War, which was paradoxically The first attempt was made at the conclusion accompanied with a false sense of optimism of World War 1. The Treaty of Saint- concerning arms trade. In 1991 and 1992, the Germain-en-Laye was signed on 10 permanent members of the United Nations September 1919 by the victorious Allies and Security Council gathered to restrain arms by the Republic of German-Austria.446 It was transfers to the Middle East. Unfortunately, the result of the desire of European powers China boycotted these talks after learning of to not let arms fall into the hands of US and French sales to Taiwan.448 At the problematic actors in colonial settings. The same time, civil society has played a key role convention aimed for a general supervision in bringing the perils of proliferation to the of the arms industry in selected nations. forefront.449 However, without US support, other states also declined to participate. The arms industry struggled to stay afloat in the post-Cold war era, and trade in arms took
446 The Treaty of Saint-Germain-en-Laye, (1919). Available at 447 Michael Klare, Carter’s Arms Policy, NACLA [https://fas.org/sgp/crs/weapons/RL30957.pdf] last REPORT ON THE AMERICAS, (September 2007). accessed August 2020. Available at [https://nacla.org/article/carter%27s- 449 Mahmoud D, A Short GuIde to the Arms Trade Treaty, arms-policy] last accessed July 2020. ADVOCATES FOR INTERNATIONAL 448 Shirley Kan, Taiwan: Major U.S. Arms Sales Since DEVELOPMENT, (2012). 1990, CONGRESSIONAL RESEARCH SERVICE, (August 2014). CORPUS JURIS|151
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in on a new urgency, further hindering the ahead with the process. However, the turning realization of a binding treaty. The urgency point for the Arms Trade Treaty came with came as a result of humanitarian concerns, as the Obama administration, and the United well as an extension of the geopolitical States issued a press release reversing its interests of major powers. position.
By 1997, a decision was made to convene a For the first time in history, the international conference on small arms trafficking. community was committed to adopting a Combined with the Ottawa Treaty of 1997450, legally binding mechanism to restrict the conference set off serious discussions transfers of conventional weapons on pertaining to arms trade, and its momentum agreed-upon grounds. However, like most helped catalyze more comprehensive arms international agreements, the treaty will only control measures like the Arms Trade Treaty. be as strong as the state parties. Taking into The formal process to create a global, legally- account that major players like China and binding treaty was underway in 2006, in the Russia abstained in the final vote, it is clear footsteps of the United Nations Small Arms that universal acceptance of the treaty is yet conference451, which many presumed to be a to occur. failure. THE ARMS TRADE TREATY The organizers of the conference decided to open the floor for public vote in the United Is it a trade treaty, as one might assume at a Nations General Assembly, which passed the glance? resolution with an admirable 154 votes.452 A It has little to do with the World Trade strong industrial weapons complex Organization. combined with a persistent domestic lobby Is it a human rights treaty? meant that the United States voted against Perhaps, but there are references to both jus the adoption of the Arms Trade Treaty. ad bellum and jus in bello. Much to its credit, the United Nations went
450 Convention on the Prohibition of the Use, 451 United Nations Conference on Small Arms, (2001). Stockpiling, Production and Transfer of Anti- 452 UN General Assembly approves global Arms Trade Personnel Mines and their Destruction, (1997). Treaty, UN NEWS, (April 2013). CORPUS JURIS|152
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
It even has elements of a fledgling counter- The Arms Trade Treaty requires all member terrorism treaty. states to adopt basic regulations and approval Difficult to define, the Arms Trade Treaty processes for the global flow of weapons stands in its own class, and is one of a kind. regulated by common international standards. A national control system is also The Arms Trade Treaty and related regional established for ease of operations. legislations go against well-established historical state preferences for non- Arms transfer authorization would be interference and flexibility in foreign policy. prohibited by the treaty if it violates Negotiating treaties is costly, and their obligations under measures adopted by the implementation is exponentially more so, United Nations Security Council pertaining considering both expected and unexpected to arms embargoes or other relevant costs. The question arises; even though states international obligations,453 or when the state want to limit black markets and other forces has knowledge at the time of authorization which constrain their authority, why would that the arms would be used in the they set aside established preferences and commission of genocide, crimes against agree to limits on their policy? humanity, breaches of the Geneva Convention454, or other war crimes. I propose that major democracies who make this commitment, do so to promote their Serious violations of international place in the global framework as a humanitarian law or human rights law are humanitarian leader. It is an instrumental also to be noted, with states being required to response to a normative shift towards maintain data regarding the export of humanitarianism in the post-Cold war era. ammunition and take measures pursuant to Nations can use their commitment to its national laws to regulate brokering and carefully sculpt their reputation. prevent diversion of conventional arms.
453 U.N. Charter, Chapter 7, (1945). Geneva Convention Relative to the Treatment of 454 Geneva Convention for the Amelioration of the Prisoners of War, (1949). Condition of the Wounded and Sick in Armed Forces Geneva Convention Relative to the Protection of in the Field, (1949). Civilian Persons in Times of War, (1949). Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, (1949). CORPUS JURIS|153
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
There are certain facets of the Arms Trade - Over thirty nations have objected to Treaty which warrant closer investigation. various parts of the Arms Trade The first is the dual-use conundrum. For Treaty during negotiations, most of instance, if a state buys radar, is it for a whom had concerns about the civilian aircraft or a military aircraft? It implication for national becomes difficult to apply the Arms Trade sovereignty.456 Treaty in the presence of so many variables. - Civil society groups, on the other In the case of small arms, especially, states hand, are keen to ensure that the might procure large machine guns and mount Arms Trade Treaty does not abrogate them on the back of large trucks. Is that large individual rights, and the most vocal truck to be classified as a military weapon in groups come from the United States. that case? Will the treaty then cut off the sale of large trucks since it can be fashioned into ROLE OF STATES a military weapon? ‘Reputation’ is defined as a collective I propose that the answer to this problem lies judgment placed on the character of an entity in identifying the primary use of the object in or the esteem in which that entity is held.457 question. Trucks are primarily used for States in a global setting are fundamentally human activities, and hence would not come concerned about presenting an acceptable under the ambit of this specific treaty. The picture, at least in international forums, and I European Union Export Control system put that forth as the reason why large-scale provides a usable framework to manage the democratic exporters regulate themselves. export of dual-use objects, but adjustment is States deliberately seek to shape their public necessary to combat evolving risks.455 image, as well as the consequent rise in their international legitimacy. It remains to be seen Opposition to the Arms Trade Treaty can whether reputational concerns will evolve either be state opposition or civil society into something more substantial, as the treaty opposition. is in a stage of relative infancy.
455 Community regime for the control of exports, 456 Staff, Universalization of ATT, REACHING transfer, brokering and transit of dual-use items, CRITICAL WILL, (December 2013). COUNCIL REGULATION (EC) No. 428/2009, (5 457 Reputation, Oxford English Dictionary, (7th Edition May 2009). 2017). CORPUS JURIS|154
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Certain factors, however, imply that states do not have this practice are undergoing a glacial not operate in such an abjectly wholesome form of norm internalization. manner. For instance, states see these legislations as costly for their material State Practice can be defined as a pattern of interests with little potential for material gain. behavior by states which, if accompanied by Concerns about sovereignty, foreign policy, a conviction by those states that their flexibility, and national economic decision- behavior is required as a matter of law, may making loom before these states. This has give rise to customary international law.458 It been amplified by the increased attention on is important to discuss the question of terrorism in the 21st century, and the contemporary state practice to better economic downturn of post-financial crisis understand how states function vis-à-vis the austerity. In a democracy, free-thinking Arms Trade Treaty. masses will pay little attention to arms trade, especially when there more pressing short- Unfortunately, the prevalent practice seems term needs that have to be fulfilled. The to be that states are not using the Arms Trade majoritarian perception that small arms do Treaty to codify existing practice or to reflect not harm the supplier states’ population their normative commitments.459 Evidence of could possibly result in apathetic norm internalization is also difficult to find. democracies. Hence, while new policies consistently portend a shift in international affairs, that Why do states commit to international shift if not reflected in actual state practice. treaties? This is not especially surprising because internalization of norms by state parties can If we look at it through the lens of the Arms take years if not decades. Trade Treaty, states that have a long record of making humane arms trade decisions are For state responsibility to arise, two simply working co-incidentally with the conditions are to be met. treaty. On the other hand, states which do
458 John H. Currie, PUBLIC INTERNATIONAL 459 Jennifer Erickson, DANGEROUS TRADE: LAW, Irvin Law, (2001). ARMS EXPORTS, HUMAN RIGHTS, AND INTERNATIONAL REPUTATION, 2015. CORPUS JURIS|155
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
First, the act or omission of an act must Sovereignty entails responsibility, and while constitute a breach of an international politics in the real world is not always without obligation. As the draft articles on state fault, the concept of Responsibility to Protect responsibility put it460, the act must not be in has helped in upholding human rights in conformity with what is required by the many parts of the world. While there have international obligation. Here, the obligation been reservations, it is a statement of shared in question must be binding on the State at expectation and signifies a commitment of the time of the conduct. Second, the act or what the world ought to do in order to end omission of the act must be attributable to human rights violations. The adoption of the the state. Arms Trade Treaty by various nations signifies the solidification of this intent. The accepted principle among theorists is that each state incurs responsibility for its Is the risk assessment provided for in the own conduct. Article 47 of the Articles on Arms Trade Treaty reasonable? State Responsibility461 says that where several states are responsible for the same During negotiations, a large number of internationally wrongful act, the member states had stressed that an eventual responsibility of each state may be invoked in Arms Trade Treaty should be more relation to that act. In cases related to the regulatory than prohibitory.462 A primary aim Arms Trade Treaty, this distinction will make of the treaty is to strengthen global regulation it easier in cases where both the importing of international arms transfers and prevent and exporting states have cause for concern. non-authorized arms supply. It is in the backdrop of this information that we analyze It is important to also take glimpse into the the Risk Assessment criteria for export of concept of ‘Responsibility to Protect’, which arms. deals with humanitarian intervention, and its relationship with the Arms Trade Treaty.
460 Part I, Art. 2, International Law Commission, Draft 462 Note by the Secretary General, Towards an arms trade Articles on Responsibility of States for Internationally treaty: establishing common international standards for the Wrongful Acts, (2001). import, export and transfer of conventional arms, (August 461 Art. 47, International Law Commission, Draft 2008). Articles on Responsibility of States for Internationally Wrongful Acts, (2001). CORPUS JURIS|156
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
According to Article 6 of the Arms Trade types of transfers which come under the Treaty, transfers of conventional arms, treaty.463 The criteria laid out in the treaty can ammunition and parts and components are be used to guide decisions of states on prohibited if the transfer would violate whether to authorize transfers to either states relevant international obligations under or non-state actors. If necessary, some states international agreements. Additionally, a might use additional criteria to monitor state shall not authorize any transfer if it has transfers to non-state actors. However, risk knowledge at the time of authorization that assessment is not binding on the state parties, the arms or items would be used in the and that opens up the treaty for misuse and commission of genocide, crimes against misinterpretation. humanity, grave breaches of the Geneva Conventions, attacks directed against civilian RECOMMENDATIONS objects or civilians, or other war crimes. 1. Promotion of Ancillary Treaties. Article 7 of the Arms Trade Treaty adds another layer to the above prohibition, by Supplier states like the USA must endeavor laying down that where a transfer has not to partake in various ancillary treaties like the been prohibited pursuant to Article 6, each Convention on the Rights of the Child464, exporting state must assess the potential that which are complementary to the aims and the arms or items could be used to commit objectives of the Arms Trade Treaty, given or facilitate a serious violation of the underlying goal of reducing suffering. International Humanitarian Law or International Human Rights Law. 2. Fostering strong NGOs and responsible Media. If there is an over-riding significant risk of such negative consequence, the export shall An active Non-Governmental Organization not be authorized. While Article 7 only network would function like a pressure group applies to exports, Article 6 applies to all for states to toe the line, while a free and fair
463 International Committee of the Red Cross, 464 The United Nations Convention on the Rights of Highlights of the Arms Trade Treaty, ICRC Legal Fact the Child, (1989). Sheet, (April 2013). CORPUS JURIS|157
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in media plays a major role in the enforcement 5. Minimizing State transfer to Non- of the treaty, since the reputational costs are State Actors. not worth the domestic political risk. Even though states have agreed to 3. Managing the rise of New prohibitions on transfers of particular Economies. conventional arms to certain categories of non-state actors, it should be ensured that The rise of states like India and Brazil in the existing instruments pertaining to transfer to arms suppliers’ market465 must be accounted non-state actors are not undermined.466 for in an equitable manner, so as not to have another United States or Russia, while also 6. Safeguarding of Sales. providing an incentive to get developing states to join the Arms Trade Treaty. It would Sales must be intrinsically connected to be wise if developing economies lobbied to safeguards, and must be aligned with the include the principle of ‘Special and needs, capabilities, and conduct of partners Differential’ treatment in arms trade as given to ensure human rights and on civilian under the General Agreement on Trade and protection. States must vigorously enforce Tariffs. existing legislation by restricting suspicious transfers. 4. Widening the Trade Umbrella. 7. Objectivity of Risk Assessment. It would be ideal to broaden the scope of formal arms trade. India will need better Each state party must vigorously apply weapons technology to combat the rise of assessment as set out in Article 7 of the Arms Pakistan and China. In such a situation, it will Trade Treaty, without distinction, and using be safer for India and other countries to trade verifiable and detailed information from in a legitimate treaty-endorsed market. credible sources, including the intended
465 Supra Note 413. 466 J. Bonomo, Stealing the Sword: Limiting Terrorist Use of Advanced Conventional Weapons, RAND Corporation, (2007). CORPUS JURIS|158
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in recipients, the likely uses, and relevant marked in compliance with the United stakeholders. Nations Firearm Protocol of 2001467 and the International Tracing Instrument of 2005468. 8. Defining ‘Serious’ Violations of International Human Rights Law. 10. Acknowledging the Gendered Risk of Arms Trade. Acts alleged to be such a violation should be assessed against the nature of the right Patterns of harm from the use of weapons in violated and harm suffered, and the scale of populated areas are shaped by issues of the violation, with focus on the following: gender. States must facilitate research on the - Is the recipient state a party to key gendered effects of the use of small arms in human rights instruments? conflict zones, while supporting international - Does the recipient state have an efforts to develop political commitment. independent and civil judiciary? 11. Increasing Co-ordination Does the recipient state have a mechanism Effectiveness with the Private Sector. for independent monitoring? The United Nations must reach out to the 9. Enhancing Effectiveness of Storage defense industry to ensure optimal Systems. cooperation and sharing of best practices to ensure complete implementation of the Exporting states should enhance the treaty. These industries must be convinced effectiveness of the storage and registration that it is in their long-term interest to join the systems and ensure that arms are uniquely treaty.
467 The United Nations Firearm Protocol, (2001). 468 International Tracing Instrument, (2005). CORPUS JURIS|159
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
The reputation of supplier states has suffered due to unilateral sanctions and disregard of legislation. However, public support for the Arms Trade Treaty signals a paradigm shift. For those who foresee a world with a strong Arms Trade Treaty, the gaps between policy and practice are evident, especially when there is no inherent guarantee of the internalization of norms over time. At the same time, certain success stories give us hope. Arms exporters in Europe are surprisingly vocal supporters of regulation. Countries like China and Russia have also thawed their attitudes regarding arms trade. The lack of an enforcement authority remains the most blatant vacuum in the Arms Trade Treaty and will make the realization of treaty goals difficult. The issue of maintaining compliance therefore falls into the hands of domestic political actors, who often demonstrate a bureaucratic lack of intent when it comes to arms export. The costs of non- compliance are low. Gaps between policy and practice incur reputational and others costs for the government. Tough questions remain on monitoring and evaluation. The answer lies in finding a balance between perceived notions of sovereignty related to arms trade and changing notions of what it means to be an international entity in the 21st century. To conclude, the Arms Trade Treaty was once thought impossible. The future might be uncertain, but the likelihood of failure is not more than the likelihood of success. If the actors to the treaty continue on the path set before them, then we might actually end up being part of a world where small arms and weapons are properly regulated.
CORPUS JURIS|160
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
HIGHLIGHTING THE SHADES OF DIPLOMACY WITH POINTING TOWARDS THE NEED OF TRANS-CIVILIZATIONAL WORLD
-BHAVESH GUPTA* & NIKITA KHANNA* ABSTRACT
The paper revolves around highlighting the two extremes among the plethora of shades in international diplomacy- spotlighting the disputes in the South China Sea in the nature of gunboat diplomacy while also contemplating the various criticisms of the shared future argument developed by Xi Jinping- pertinently in the context of BRI initiative in post- COVID world. The author then attempts to surge through the emergence of non-western part of the world in the context of China’s mars mission, the fostering of better relations and continuous ideological overlapping between the west and the rest of the world. The first section of the paper touches upon the “shared future” argument in context of BRI initiative (One belt one road scheme), the second part deals with gunboat diplomacy and the understanding of the same in consonance with Taiwan trump talks, LAC and Hong-Kong security laws, the paper further on glides through the concept of trans-civilization and the fostering of better EU-India, EU- Japan relations, India- US relations amidst eastern Ladakh crisis, thus conclusively establishing a relation between the impact in the practical manifestation of “trans civilization thesis” due to the interplay of various shades of diplomacy, specifically establishing that ironically “shared future” as an ideology, although propounded by China, the biggest threat to the concept is China’s own policies such as the “debt trap of China”, “geopolitical strategy” and colonialism- all of which has been examined in the context of the hegemonistic status it tries to achieve.
KEYWORDS: United States, United Nations, South China sea, United Nation Convention on the law of the Sea, COVID-19, China
* Student, 3rd Year, BLS LLB, Rizvi Law College, Mumbai. * Student, 3rd Year, BLS LLB, Rizvi Law College, Mumbai. CORPUS JURIS|161
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
XI JINPING VISION OF SHARED FUTURE Maritime issues, international border ARGUMENT relations with the countries and security concern fades the light of this glooming This ideology first came into picture when concept. It is a big threat to the sovereignty the President Xi Jinping articulated a notion and integrity of any country. Xi Jinping during a conference at UN in 2015, clearly understands that countries with major describing it as a “community of shared economies will vest their interests in future of mankind"469 reflecting extreme developing and maintaining relations with glamour and spirit. It was one of the base China to establish greater political and policy for guiding and showing pathways to developmental infrastructure ultimately the Chinese diplomacy over the years. This making China to become the rising power will bring about five major changes in amongst all. Thus, it stresses a common accordance with the international relations: ground for both China and the West471. But a Developing a new model for major-power competition, mere blueprint will not do any good to China shifting security concerns to non-traditional threats, unless it unveils itself with a well promoting win-win economic co-operation instead of implementing reform in turn benefitting all zero-sum trade and technological competition, the economies together which primarily integrating non-western practices and governance with means developing political inclusiveness. In the Western system of universal values, and managing order to apply this policy, one should keep in economic development in a way that ensures ecological mind the developmental and infrastructural balance470. Chinese policy is way too ambitious interests of all the countries rather than just in the current world situation and some of having the geopolitical interests of their own. the countries find it appealing. Nevertheless, It is important for Xi Jinping to mark some China assertiveness has triggered wide global new ideas about the world order to concerns. Moreover, bringing attention to strengthen its position as benign leader of the such substantial concerns comprising international community. The belt and road
469 CTGN, ‘A community of shared future for mankind :From it mean?’, TIMES OF INDIA, (October 11, 2020, Myth to Reality’, CTGN, LIVE, (October 11, 2020, 01:10 AM), 10:12 AM), https://timesofindia.indiatimes.com/blogs/toi-edit- https://news.cgtn.com/news/77496a4d306b7a63335 page/beijing-likes-to-talk-about-community-of- 66d54/share.html. shared-future-of-mankind-what-exactly-does-it- 470 Sayed Akbaruddin, ‘Beijing likes to talk about mean/. “community of shared future of mankind”. What exactly does 471 https://www.nbr.org/ CORPUS JURIS|162
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in initiative as well as building a community assured that the virus is created and spread by with shared future of mankind are the two the Chinese government just for the sake of most important and prominent proposals in slowing down various big world economies. the regard for China to twinkle as a bright star China assures it on public level that it is in the world. Apart from this, several other through the shared future argument by which issues are also highlighted as a part of this one can actually amend their ways to fight the strategy including competition with United pandemic with joint efforts. States, growing international discourse of threats from China, security issues, non- If the climate change is the world’s most adequacy of new institutions to meet the complex chronic problem, then Covid-19 is upcoming unknown challenges, and benefits the globe’s most severe pressing issue which of globalization472. However, this policy needs to be tackled with all arms and being introduced by Chinese government ammunitions considering the various current tips more towards the positive circumstances. Besides, another strategy developmental aspects but has also lured named One Belt One Road was brought into criticism from various other potential leading picture based on the ideology of the shared countries as it is believed to be a part of future argument given by Xi Jinping. governing “Chinese diplomacy” in turn diverting countries from their original One Belt One Road (OBOR) pathways of cooperation and mutual development. The ideology also briefly OBOR also known as Belt and Road questions how a pandemic and terrorism is a Initiative (BRI) is a global developmental threat to humankind. These questions give infrastructural strategy adopted by Chinese rise to the geopolitical conflicts across the government in order to connect countries borders bringing our attention to the current and international organizations473. It is the Covid-19 Pandemic, and are seen to be second most important vision opted by
472 See Xi’s speech at the National University of culture and that China was the victim of foreign Singapore in late June of 2016, in which he particularly invasions. See “China Committed to Building refuted the “China threat” theories and reiterated Community of Common Destiny with ASEAN,” China’s commitment to maintaining peace and a Dubai News, June 28, 2016. willingness to cooperate with neighbouring countries. 473 National Development and Reform Commission, In addition, xi explicitly argued that the philosophy of (October 7, 2020, 11:00 AM), ndrc.gov.cn peaceful development was in the genes of the Chinese CORPUS JURIS|163
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Chinese Communist party General secretary Chinese economy. Nevertheless, China has Xi Jinping. The goal is to incorporate regional also dragged many countries to participate connectivity and brighter future for all. BRI and be a part of their BRI scheme, Africa includes two main routes- one for the rail and being the epicentre of its diplomacy. It is not road transportation also called the "Silk road hidden fact that Chinese technology requires economic Belt" while the other for sea routes less labour service but produces heavy known as Maritime Silk road474. Both the surplus for the country to consume. routes are inclined to provide an easier way Therefore, it can be additionally highlighted of trade and movement across the territorial that one of the major issues behind the borders. Yet the game plan entices various initiative is transferring the excess capacity or reproval. surplus produce of China, accompanied with their latest technology to other nations. Criticism In this regard, the author evaluates varied Although even after having huge abundance major policies of China with reference to of material products, China still lacks behind foreign relations of different countries and in developing regional relations with the tries to understand the extra benefit it adds to countries around the globe. the other economies as a whole. Underlining BRI Setbacks to majority of BRI is said to be just another scheme in order nations to gain political leverage from other Debt Trap Diplomacy: - Debt-trap describes countries. It is thereby said to be one of the diplomacy based on debt carried out in the bilateral most important diplomatic policy adopted by relations between countries with an often-alleged Chinese government in order to encounter negative intent475. In the light of granting loans several growing nations. Mainly, it is used to for OBOR developmental and infrastructural realize China's dream and forces the other projects, Chinese Government is propelling countries to participate in it, profiting the nations into the vicious circle of debt trap. It
474 Kuo, Lily and Kommenda, Niko, ‘What is China's 475 OBOReurope, ‘BRI Project in Malaysia, a fresh new Belt and Road Initiative’, THE GUARDIAN, (October start’, OBOREUROPE, (October 8, 2020, 12:20 PM), 7, 2020, 11:34 https://www.oboreurope.com/en/malaysia-new- AM),https://www.theguardian.com/cities/ng- start/ interactive/2018/jul/30/what-china-belt-road- initiative-silk-road-explainer. CORPUS JURIS|164
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in is seen as widely been criticized for saddling Colonialism: Chinese foreign policy of many countries with debt. Furthermore, it is OBOR is purely an economic stunt to found out that the ultimate motive of lending capture full control of various potential huge amount of loan to the countries is nations as contrary to what China's vision connected in gaining political control over was based on i.e. Co-operative security, them476. infrastructural development and political inclusiveness478. China’s strategy of offering It is marked that China by offering loans at loan as a part of OBOR infrastructure commercial rates to countries is just another investment is slowly pulling the provinces way of putting them under the radar of debt. into debt trap and granting China a decent Also, with reference to this when the debtor rise in its country's GDP. Also looking at the country is unable to pay the loan granted to affairs in the state of Myanmar which owes them, it gives the creditor fair advantage to about $4 billion to china accounting to its 44 acquire concessions either political or percent external debt479. It is also seen that economic or both. Associating it with the China is producing things beyond the current COVID-19 pandemic which led to capacity required to satisfy its own country. the heavy crash of demand for the goods and The question is why? The interpretation to services across the globe, decrease in the this question is quite simple- It is just to exports, depreciation of the local currency invest into lucrative projects abroad in turn value, eventually leading to the countries contributing to its GDP. But as a result, it is being unable to pay their debts on time. Most exploiting every other natural resource of the African countries namely Maldives, possible taking it from the China's OBOR Djibouti, Ethiopia have substantial debt invested countries. Simultaneously the owed to China477. bilateral trade agreement which proves to be a win-win situation for both the countries is
476 Rahul Mazumdar, ‘Obor can lead to economic escape-a-debt-trap. colonialism’, The Hindu, (October 8, 2020, 04:23 PM), 478 Geethanjali Natraj and Richa Sekhani, ‘China’s one https://www.thehindubusinessline.com/opinion/ob belt one road initiative: analysis from an India perspective’, or-can-lead-to-economic- NICKELED AND DIMED, (October 9, 2020, 06:22 colonialism/article22043328.ece1#> PM), 477 Virginia Furness, ‘China’s Belt and Road Initiative: https://nickledanddimed.com/2016/01/14/chinas- CanAfrica escape a drbt trap’, EUROMONEY, (October one-belt-one-road-initiative-analysis-from-an-indian- 8, 2020, 07:10 PM), perspective/. https://www.euromoney.com/article/b1lwrkkwwpx 479 Supra note 476. s0x/china39s-belt-and-road-initiative-can-africa- CORPUS JURIS|165
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in vague and questionable480 Given the current large claims of corruption and misleading economic position of the numerous appropriation of funds. Upon being noticed countries with heavy debts towards China, it by the Malaysian government, the Malaysian can be seen in the foreseeable future that Anti- Corruption Commission Yuan will be the alternative currency to (MACC)484raided the offices and seized all dollar. Moreover, it can also be noted that if the documents in relation to the three the debtor countries are unable to pay the projects. After which the documents on grants to Chinese government, it may even being checked and verified pointed towards acquire the equity possessions in those zero percent of the construction work being countries eventually expanding China's carried on. It is remarkably noted that China control over the market. invited the corrupt regime to complete its OBOR projects. Corruption: OBOR being one of the most controversial projects is linked to corruption. Geopolitical strategy: Since the launch in There have been countries backing out of the 2013, China's BRI has achieved various project namely Malaysia, Montenegro tangible results that have lasting effect on the because of the prevalence of corruption. geopolitical dynamics of the world. While While in Malaysia three OBOR projects Western countries tend to interpret it as a namely Eastern Coast Rail link (ECRL) 2 part of Chinese government diplomatic pipelines, the Multi Product Pipeline (MPP) strategy to ultimately rule the world. There and Trans- Subah Gas Pipeline (TSGP)481 has always been a global suspicion on the with the approx. of totalling $23482billion BRI agendas as it has no blueprint to showed signs of corruption. The following implement the ideas485 and goals of the BRI projects were carried on by the China hence consequently attracted diverse Communications Construction CO. Ltd and negative interpretations. Another reason is funded by Exim bank of China483 depicting the gap between its assertive thinking and its
480 Anthony Kleven, ‘Belt and Road Colonialism Chinese 483 Supra note 475. Characteristics’, THE INTERPRETER, (October 9, 484 Supra note 475. 2020, 07:55 PM), https://www.lowyinstitute.org/the- 485 Talmiz Ahmed, ‘Why India needs to take a fresh look at interpreter/belt-and-road-colonialism-chinese- the Belt and Road Initiative’, THE WIRE, (October 10, characteristics. 09:10 AM), https://thewire.in/diplomacy/india- 481 Supra note 475. needs-to-take-a-fresh-look-at-the-belt-and-road- 482
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in eloquence over the years. It has been GUNBOAT DIPLOMACY observed that there always have been contradictory sets of messages China’s corona virus “mask-glove diplomacy” communicated through Xi Jinping actions has paved a way to confrontational tensions and words. Further noting that at one end it and security issues across international has been taking a leap to develop peaceful borders with its neighbour, more of it in relations with the Unites States in order to South China Sea. The diplomacy with the jointly counter security issues concerning main issue over the South China Sea is still an North Korea, Syria, Iran and catering to ongoing topic keeping in mind its intensity "friendly relations with the neighbour policy" and relevance which has grown over the past while at the other corner it has been few decades. It is one of the most complex developing strategies to deal with maritime international legal challenges curtailing in the and territorial issues, introducing reports of 21st century due to a large number of various new break thorough including claimants and ambiguity in the interpretation weapons and military technology in order to of the historical facts and international fight vicariously with the countries disrupting law. It is a marginal sea and a part of Pacific its peace and security. Additionally, making Ocean488 through which world's shipping the ultimate goal of People's Liberation Army trade passes which nearly is estimated as (PLA) to "being capable of fighting and $3.37 trillion489. Based on international law fighting victoriously"486. It is undeniably and historical facts, China claims to enjoy concluded that China's OBOR project is a indisputable sovereignty in the South China slow parasite existing within 78 countries487 Sea and the island. These actions have been trying slowly to eat their economies up. highly condemned by the countries since 2015 namely United States, United Kingdom,
486 Shi Yinhong, ‘China’s complicated foregin policy’, 80%9CProject%20of,OBOR%20spans%20about%2 EUROPEAN COUNCIL FOR FOREIGN 078%20countries. RELATIONS, (October 10, 2020, 10:00 AM), 488 ‘South Sea China’, WIKIPEDIA, (October 11. 2020 https://www.ecfr.eu/article/commentary_chinas_co 12:14 AM), mplicated_foreign_policy311562. https://en.wikipedia.org/wiki/South_China_Sea#:~: 487 Shobhit Seth, ‘One Belt one Road’, text=The%20South%20China%20Sea%20is,kilometr INVESTOPEDIA, (October 10, 2020, 05:12 PM), es%20(1%2C400%2C000%20sq%20mi). https://www.investopedia.com/terms/o/one-belt- 489 ‘How much trade transits the South China Sea?’, CHINA one-road- POWER, (October 11, 2020, 03:24 PM obor.asp#:~:text=Dubbed%20as%20the%20%E2% ), https://chinapower.csis.org/much-trade-transits- south-china-sea. CORPUS JURIS|167
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Malaysia490. The pivotal of situation become largest economies and will be more clearer when China transformed Mischief importantly dealt with as more and more Reef into an artificial island491. During the countries grow. time when the whole country is reeling with the great virus epidemic from Wuhan, China United Nation Convention on the Law of the is indulging in its unfair aggressive diplomatic Sea (UNCLOS) was designed by UN in measures enticing the whole world against it. 1982494, which acted as an instrument for It has even upfronted the military forces in settling maritime disputes and provided text SCS (South China Sea) knowing well enough on navigational rule in the contested waters. that the trade will be impacted on a greater It is also known as Law of sea Treaty. It level in turn contradicting its peaceful defines the rights and responsibilities of cooperation under shared future arguments. nations with the use of their world's sea, People’s liberation Army actions in and management of natural resources. It is an around SCS comprised a part of huge debates overarching framework for the governance at the May ASEAN submit492. All the of oceans. On December 12 Malaysia made claimants to SCS are willing to indulge in any submissions to the CLCS (Commission on manner possible to apply any kind of force, the Limits of Continental Shelf) claiming the implement aggressive policies just to redeem sovereign rights and jurisdiction of its natural its position over it. It has been described by resources. CLCS was a body set up by United States as a global topic where freedom UNCLOS and the submissions were made by of navigation and rule of law are common Malaysia in reference and line with its rules. and national interests and deter military US intervention clearly depicts the picture of conflicts in the region493. The SCS acts as a not being satisfied with the China’s main transit point for some of the world's
490 ‘Territorial disputes in South China Sea’, WIKIPEDIA, https://www.dailypioneer.com/2020/columnists/a- (October 11, 2020, 04:46 PM), weak-asean-can---t-save-south-china-sea.html. https://en.wikipedia.org/wiki/Territorial_disputes_i 493 Matthew R. Costlow, ‘Gunboat diplomacy in The South n_the_South_China_Sea. China Sea’, US AIRFORCE ACADEMY, (October 491 Steve Mollman, ‘China’s South China Sea Plan unfolds 13, 2020, 02:26 PM), regardless of Coronavirus’, QUARTZ, (October 11, 2020, https://www.usafa.edu/app/uploads/Costlow- 10:20 PM), https://qz.com/1849207/chinas-south- South-China-Sea-22-Jan-2013.pdf. china-sea-plan-unfolds-regardless-of-coronavirus/. 494 ‘United Nations Convention on the Law of the sea’, 492 Makhan Saikia, ‘A weak ASEAN can’t save South WIKIPEDIA, (October 13, 2020, 04:34 PM), China Sea’, DAILY PIONEER, (December 12, 2020, https://en.wikipedia.org/wiki/United_Nations_Con 10:00 AM), vention_on_the_Law_of_the_Sea. CORPUS JURIS|168
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in dominance over the disputed sea495. Even explanation of Freedom of Navigation China’s lack of friendly relations is another Operation. (FNO) contention due to which many nations including United States is strictly against it Although it was a justified action taken by the capturing the SCS, and quoted “it will not let US government against China in order to china destroy the freedom and sovereignty of show its position and make to sure it does other countries”496. Further stating that any follow every other order and jurisdiction rights which china claims over SCS based on made by UNCLOS rather than just its “historic rights” is unlawful if it exceeds depending on its past facts. the prescribed rights given by the UNCLOS. Adding to the notes verbal it further asserts The affairs of gunboat diplomacy aroused in that china has no right to claim over maritime regards to the South China Sea by United zones from the island like Spratly Islands497. States which has patrolled two naval forces around the disputed SCS in order to make the The term “Gunboat” originated in the shipping lines open in the international nineteenth century when Western countries water498. It is a strictly “business arena” as like United states and Europe intimidated quoted by United States. Using the other less powerful countries in order to gain ambiguous cover of corona virus epidemic, control over them. United States have China is basically exploiting SCS while taking objectified its fair play of threatening China advantages of various minerals and natural by dropping U.S. guided missile destroyers resources in its own favour. near the Spratly island of the SCS on the
495 Robert Beckman, ‘South China Sea Dispute Arise 497 Stefan Talmon, ‘The South China Sea Arbitration: Again’, CENTRE FOR INTERNATIONAL LAW, Observations on the Jurisdiction and Admissibility’, (October 13, 2020, 07:50 PM), OXFORD ACADEMIC, (October 15, 2020, 12:20 https://cil.nus.edu.sg/publication/south-china-sea- PM), disputes-arise-again/. https://academic.oup.com/chinesejil/article/15/2/3 496 Stephen M. Walt, ‘Countries should mind their own 09/2548389. business’, FOREIGN POLICY, (October 15, 2020, 498 ‘The Irish times view on the tensions in the South China 08:12 AM), Sea: gunboat diplomacy’ , IRISH TIMES, (October 16, https://foreignpolicy.com/2020/07/17/sovereignty- 2020, 11:00 AM), exceptionalism-countries-should-mind-their-own- https://www.irishtimes.com/opinion/editorial/the- business/. irish-times-view-on-tensions-in-the-south-china-sea- gunboat- diplomacy-1.4242732. CORPUS JURIS|169
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Sighting one of the Vietnamese fishing boat during midnight in which Chinese vessels incidents also known as the Vanguard Reef499 sailed away leaving behind 22 Filipinos - in the SCS which was thrusted and crushed fisherman to die502. Various postulations by China over the argument that it was were presented by China in order to avoid the fishing in the disputed Paracel Island. Both blame over them. China and Vietnam are in the stand-off in Vanguard reef in the Spratly Island500. The However, a committee was set up by reason for the standoff of the Vietnamese Philippines Coast Guard and Maritime was Chinese survey ship which entered in the Industry Authority in order to inquire under territorial waters of the Vietnam in order to the given matter. Accordingly, the report was conduct a seismic survey. Both the countries released on 20th June, acknowledging the have had their military forces in place in- fact that there cannot be any reason that the order to protect their coastal lines, thus the Philippine vessel were not visible when the standoff. According to the reports Chinese sky was clear thus concluding that “Chinese oil rigs were protected by commercial vessels vessels showed signs of ruthless behaviour nearly believed to be 30 of them. These towards Indian vessels eventually wanting commercial vessels with the militaria vessels them to die of suffering”. These incidents sprayed the Vietnamese vessels. have once again paid heed to the Chinese aggressive policy and their territorial claims in On 9th June, an incident took place between the disputed SCS. China and Philippines whereby the former vessel collided with the latter. The incident It is more vividly seen that “shared future of occurred in Reed Bank501 of disputed SCS mankind” ideology given by XI Jinping is
499 Dipanjan Roy, ‘Vietnam justified in defending its rightsin survey-ship-mission. vanguard bank in South China Sea’, ECONOMIC 501 ‘Reed Bank IncIdent’, WIKIPEDIA, (December 12, TIMES, (December 12, 2020, 12:45PM), 2020, 12:48PM), https://economictimes.indiatimes.com/news/defenc https://en.wikipedia.org/wiki/2019_Reed_Bank_inc e/vietnam-justified-in-defending-its-rights-in- Ident. vanguard-bank-in-south-china- 502 Ronald Regan, ‘US carrier sails into disputes waters sea/articleshow/71368439.cms. amId new flare up’, DECCAN HERALD, (December 500 Liu Zehn, ‘China and Vietnam in stand-offover Chinese 12, 2020, 12:50PM), surveyship missionto disputed reef in South China Sea’, https://www.deccanherald.com/international/us- SOUTH CHINA MORNING POST, (December 12, carrier-sails-into-disputed-waters-amId-new-flare-up- 2020, 12:46PM, 752539.html. https://www.scmp.com/news/china/diplomacy/arti cle/3018332/beijing-and-hanoi-stand-over-chinese- CORPUS JURIS|170
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in more of a hypothetical concept as it has no consequence to it supporting United States. value when it comes to its implementations. It is more of a counter action that has been Moreover, it fails to participate in the shown by the Chinese government to India arbitration and refuse to accepts the for its growing relations with the US and has decisions given by international court stating seen ally-in progress to it. it has no basis in historical backgrounds and international laws. Beijing has been trying to Around June 15-16, Chinese and Indian make a stand by helping the countries with troops clashed for 6 hours in the region of the medical supplies during the pandemic the Galwan valley in Ladakh which leads to around the globe. But its diplomatic efforts nearly the killing of 20 Indian military are constantly being over-shadowed by its fighter504 including the Commander Officer such classic hard power regional bullying. (CO). Government sources reported that both the sides faced “proportionate China’s responses at Line of Actual casualties” in the line of the clash. Into the Control (LAC) bargain, the face-off resulted into blood bath for both the countries. This incident arose Line of Actual control (LAC) is a line of due to the fact that Chinese was claiming its demarcation or a boundary separating India full sovereignty over the Galwan valley from Chinese territory503. Recent clashes region505. Besides, even during the between China- India depicts the use of government of Jawaharlal Nehru, China aggressive Chinese policies by their agreed on LAC and imposed no sovereignty diplomats. It is China’s way of showing over it506. It was also argued that China’s gunboat diplomacy over India in move was driven by the factors such as
503 ‘Line of Actual Control’, WIKIPEDIA, (December army-says-20-soldiers-killed-in-clash-with-chinese- 12, 2020, 12:52PM), troops-in-the-galwan-area/article31845662.ece. https://en.wikipedia.org/wiki/Line_of_Actual_Cont 505 ‘China claims sovereignty over Galwan Valley; refuses to rol#:~:text=The%20Line%20of%20Actual%20Cont comment on Chinese casualties’ , ECONOMIC TIMES, rol%20(LAC)%20is%20a%20loose%20demarcation,t (December 12, 2020, 12:54PM), he%20Sino%2DIndian%20border%20dispute.&text https://economictimes.indiatimes.com/news/defenc =It%20subsequently%20referred%20to%20the,the% e/china-claims-sovereignty-over-galwan-valley- 20Sino%2DIndian%20border%20diute. refuses-to-comment-on-chinese- 504 Dinakar Peri, Suhasini HaIdar and Ananth casualties/articleshow/76421348.cms?from=mdr. Krishnan, ‘Indian Army says 20 soldiers killed in clash with 506 P. ChIdambaram, ‘Debacle of Summit Diplomacy’, Chinese troops in Galwan area’ , THE HINDU, INDIAN EXPRESS, (December 12, 2020, 12:55PM), (December 12, 2020, 12:52PM), https://indianexpress.com/article/opinion/columns https://www.thehindu.com/news/national/indian- CORPUS JURIS|171
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in development of India’s infrastructure and different states; People’s Republic of China changing the status of the Jammu and and Republic of China508, which has been a Kashmir. It is remarkably noted that China is highlighted topic over the decades. But taking a strategic shift in its policies during recently US elected President Donald Trump the COVID pandemic when most of the became the first to officially discuss the countries are badly hit by it. In 1993 an ongoing of the policy with the Taiwanese agreement was also signed by China and leader since 1979. He suggested that Chinese India for mutual cooperation and peace. But policy could be used as a bargaining chip509 Chinese government is deviating from its on many controversial issues like dealing with own shared future ideology and tends to tore the aggressive nature of china over the up their cooperative policies too507. boundaries, being hurt by China over devaluation, with heavy taxation over the In the course of this COVID-19 outbreak border and its activity over the South China across the world, Beijing is taking the account Sea. Using Taiwan to persuade China can of rising power which wants to reinvent the proved to be fatal for US as Taiwan being global order by the salami Tactics- where it China’s “core interests” as stated by the forms the dominance hegemony piece by Communist Party of China. If Washington piece throughout the world. formally recognises Taiwan not being a part of China, then Beijing can break off its China’s response to talks between diplomatic relations with US and counter it Taiwan-Trump tactfully. China can retaliate in the following ways:- US reviewed its “One China Policy” which clearly implies that there is only one 2.2.1) It can signal its resolve over Taiwan sovereign state opposing the idea of two by closing off air and shipping routes
/india-china-border-talks-modi-xinping-p- https://en.wikipedia.org/wiki/OneChina_policy#:~: chIdambaram-6501178/. text=The%20%22One%2DChina%20policy%22,offi 507 TNN, ‘LAC standoff: Diplomacy cut no ice with China, cial%20names%20incorporate%20%22China%22. feels govt’, THE TIMES OF INDIA, (December 12, https://www.vox.com/world/2016/12/12/1391930 2020, 12:55PM), 8/trump-taiwan-one-china. https://timesofindia.indiatimes.com/india/lac- 509 Namrata Goswami, ‘Why is China going to Mars’, standoff-diplomacy-cut-no-ice-with-china-feels- THE DIPLOMAT, (December 12, 2020, 12:55PM), govt/articleshow/77137311.cms. https://thediplomat.com/2020/07/why-is-china- 508 ‘One China Policy’, WIKIPEDIA, (December 12, going-to-mars/. 2020, 12:55PM), CORPUS JURIS|172
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
by launching missiles which would The ongoing COVID- epidemic seems to eventually lead to massive imbibe new seriousness into the countries disruptions in the island’s region. due to which they would be taking a slow Further-more for China, destroying slide towards the Chinese hegemony. It is Taiwan would not require anything clearly shown that China has the capability to else apart from its military force. be its worst enemy, breaking ties with the 2.2.2) China being American’s creditor can territorial neighbour being one of its cut hold of its money valuables which consequences. The result is a chess-match of accounts to be around $1.1 trillion gunboat diplomacy, the shipping show of dollar. Besides, if Beijing suddenly force that aims to influence the policy makers liquidates a huge number of its in the targeted nation. With clear vision it is holdings, it will cause a financial crash seen that, the fallout for various economies in the US Market. was taken into advantage by China which 2.2.3) Apple being an American company proved to be a disaster for other countries. has a huge market in China, but with Chinese diplomacy it can even lose a China's diplomacy in Hong-Kong fairly high share of it. 2.2.4) China is one of the top consumer Security law ranging from crude oil to copper to Hong-Kong was handed over by Britain to corn with US exporting it to them. If China on 1st July 1997510putting an end to the Chinese government found an 156511years of its British rule and reverting it alternative for satisfying their needs back to the Chinese sovereignty. Around an for these commodities then it would hour before the 23rd anniversary512of Hong- majorly hit United States agricultural Kong's transfer, China revealed the new market. security law made for the island country rebutting its own constitutional principle of
510 ‘Handover of Hong Kong’, WIKIPEDIA, (December dUSSP27479920070627#:~:text=(Reuters)%20%2D 12, 2020, 01:11PM), %20Split%20between%20a,sovereignty%20on%20Ju https://en.wikipedia.org/wiki/Handover_of_Hong_ ly%201%2C%201997. Kong. 512 ‘Hong Kong Handover Anniversary’, SOUTH CHINA 511 REUTERS, (December 12, 2020, 01:12PM), MORNING POST, (December 12, 2020, 01:15PM), https://www.reuters.com/article/us-hongkong- https://www.scmp.com/topics/hong-kong- anniversary-history/chronology-timeline-of-156- handover-anniversary. years-of-british-rule-in-hong-kong- CORPUS JURIS|173
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
"one country, two systems"513. The legislation letting them die in the hospitals specifically criminalizes secession, abandoned514. subversion, organization and perpetration of terrorist activities, and collusion with a Why would the Chinese Communist party foreign country or with external elements to risk its place at this peak time when it can endanger national security. actually lose access to the technology and foreign capital in Chinese Government? The The things that fall under the category are answer to this is- because lately due to the ambiguous and vague. Not to forget, the aggressive diplomacy of the Chinese action was a step-in order to ruin the pre- government there is always a lack of feeling democracy movement in Hong-Kong. It was of nationalism by the people in the country. a unanimous decision passed by the Chinese According to the Article 6515 the Standing government as a strategy towards their committee of the National People's Congress diplomacy. When the whole world is drafts a national security law and then include considering China responsible for the it in Annex III of the basic Law516 is a more COVID-19 pandemic whereas the Chinese likely to restore the Chinese belligerent government rather than making a responsible nationalism517 and support the party in its international stand and geopolitical diplomacy. It is more likely noticed that environment focuses on its aggressive Chinese diplomacy has business affair quality diplomacy. Posting on the website of Chinese which means by sending assistance to other embassy in France, China accused the countries for holding up the current Western countries of not being able to epidemic, it is generally asking for the protect their own vulnerable residents by
513 ‘Hong Kong's handover: How the UK returned it to China’, 516 ‘National People's Congress decision on Hong Kong BBC NEWS, (December 12, 2020, 01:18PM), national security legislation’, WIKIPEDIA, (December https://www.bbc.com/news/world-asia-china- 12, 2020, 01:18PM), 40426827. https://en.wikipedia.org/wiki/National_People%27s 514 John Irish, ‘Outraged French lawmakers demand answers _Congress_decision_on_Hong_Kong_national_secu on 'fake' Chinese embassy accusations’, REUTERS, rity_legislation#:~:text=Article%206%20authorises (December 12, 2020, 01:21PM), %20the%20Standing,III%20of%20the%20Basic%20 https://in.reuters.com/article/health-coronavirus- Law. france-china-IdINL5N2C370M. 517 Hilton Yip, ‘China’s Surging Nationalism Has Claimed 515 “Decision of the National People’s Congress on Hong Kong’, FOREIGN POLICY, (December 12, Establishing and Perfecting the Legal System and 2020, 01:21PM), Enforcement Mechanism of the Hong Kong Special https://foreignpolicy.com/2020/05/28/hong-kong- Administrative Region to Maintain National Security” nationalism-china-security-law-protests/. CORPUS JURIS|174
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in country itself518. China’s security law is highly TRANS- CIVILIZATION castigated internationally and specially by US calling it a draconian law519. Trump already When contemplating Onuma Yasuaki’s considered that Hong-Kong is no longer thesis on trans-civilizational world in order to autonomous to China and will be removing understand it in the post COVID scenario, it its special trade status granted to it before the is highly imperative to note that there is an law passed. analogy between the terms “trans-national” and “trans-civilization”. While criticizing the Adding to the above, it will also end limited nature of Oppenheim’s520 definition technology and defence exports to the of International law, Judge Jessup noted that territory and will not let China govern the an alternative name to international law rules over US. But keeping in view- UK is would be “Trans-national law” to include all offering additional right to the Hong- laws which regulate action and events that Kongers who are British National overseas must aim to be beyond national frontiers. passport holder who can now stay in UK for Thus, trans-civilization is analogically similar 5 years which previously was 6 months. to521 trans-nationalization in the sense that The lasting effect on Mr. Xi’s global both deal with a wider ambit when ambitions could be profound. China’s contemplating the role of all nations in relationship with the United States has international politics and relations, the key already been negatively driven, despite a difference however, is that the former has rhetorical truce reached between Mr. Xi and resulted as an inclusive measure of non- President Trump. Further there is evidence western nations in emphasis. Often, the ideas that the pandemic is forcing other countries of 522Onuma Yasuaki and those similar to to rethink relations. him who speak about participation of all nations equally show a common key idea of
518 THE NEW YORK TIMES, (December 12, 2020, 520William A. Callahan (2005) Nationalism, 01:23PM), Civilization and Transnational Relations: the discourse https://www.nytimes.com/2020/04/17/world/asia/ of Greater China, Journal of Contemporary China, coronavirus-china-xi-jinping.html. 14:43, 269-289, DOI: 10.1080/10670560500065629 519 ‘U.K. Suspends Extradition Treaty With Hong Kong’, 521 Jessup, Transnational Law 2 (1956) THE WALL STREET JOURNAL, (December 12, 522 ONUMA Yasuaki, International Law in a 2020, 01:23PM), https://www.wsj.com/articles/u-k- Transcivilizational World (CambrIdge: CambrIdge suspends-extradition-treaty-with-hong-kong- University Press, 2017) at 218 11595259869. CORPUS JURIS|175
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
“identity-consciousness”- thus basically, it ideologies is however not at all fruitful somewhere begins with an awareness of because even the act of “emerging” or one’s own civilization and then linking it to “retrieving” would then account as a western several civilizations, the way Onuma calls it- concept in the narrow sense- thus we all belong to many civilizations and thus considerations need to be seriously adhered we are trans-civilizational in that sense. His523 to the fact that no ideologies are purely work in this sense shows his approach more western or non-western. Necessarily in learning outside the books and classroom world- however, with developments and evolution, relying more on practical understanding of there is a growing conception that Non- the learned phenomena. western, Asian countries put forward to assert their position in the global order. The Asian Civilization perspective: Several authors have also explained why in many circumstances Western liberal526 It is imperative to understand that Trans democracy did not fulfil credibility needs and civilization is incomplete without that non-Western political models are understanding the rise of Asian civilization in somewhat favored among rising powers. The the post- COVID sense, unless its position in fact as to the effectiveness of these models is pre-COVID sense is not elucidated. still not 527 proven completely and would Concerns regarding the neglect of Asian involve serious debate and diverse countries back during the 1950s is reflected viewpoints, thus the authors refrain from in the concerns of Jawaharlal Nehru in Asian touching upon those aspects because that is Relations Conference held in New Delhi in not primarily in question here. March 1947. However, considering the inclusion of China in UNSC at least shows Post- COVID situations the emergence of524 power of Asian countries, besides North America and Europe, the idea The trade perspective: In order to analyze of that calls for the525 rejection of all western how situations might change post pandemic,
523 Richard A. Falk,, Book Review by Richard A. Falk: 526 Daniel Bell, Beyond Liberal Democracy: Political International Law in a Transcivilizational World by Thinking for an East Asian Context (Princeton: ONUMA Yasuaki Princeton University Press, 2006) 524(Nehru 1961: 248 and 251) 527 Laurence Whitehead, “Alternative Models of 525 United Nations Security Council Democracy in Latin America,” Brown Journal of World Affairs 17 (Fall–Winter 2010) CORPUS JURIS|176
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in an illustration may be drawn to Vietnam in pacific nations. Over the last years, aggressive the pre COVID 19 scenario. The absorption behavior of China has created problems for of the flight of manufacturers and investors most of its neighbors, one of the most due to escalation of tariffs which was pertinent incidents to note here is the clear prevalent due to US-China trade war, by message 530Australia communicated to China Vietnam is something to learn from. Several about its own alliance with the US rejecting businesses in this regard shifted to Vietnam any of the claims by China as regards the for instance, Samsung. Vietnam’s trade South- China seas. The US and India are thus surplus grew to a booming 29 percent with intent on ensuring that531 Asia remains a the US alone in 2019528.Thus, this example in multi-power region and not dominated by a itself points to several possibilities in the post single super-power, thus the efforts. COVID scenario. The Kennedy perspective Furthermore, it has even been said that the is of great relevance here- that leading powers claims of China are nothing close to remain mostly constant and it is through historic532. Naturally, in consequence of the shifts in economic terrain that new powers strong India- US alliance, new opportunities rise529. for India and the assertiveness of the country is increased. The US-India Diplomacy in 2020 amidst eastern Ladakh crises: The two main issues Post-Covid China: Considering the that plague: The eastern Ladakh crisis and the requirement of economic help post COVID pandemic have both been instrumental in due to the deterioration caused by it in the greatly improving the US-India relations entire Central Asian region, it is only safe to among improving India’s relation with many assume that they will turn to help from
528 Milind Deora & Sanaa Bhutani , ‘View: Opportunities 530 US-India Ties AmId the Eastern Ladakh Crisis and India should leverage to make it a global post-CovId model the Pandemic, A talk with Raji Rajagopalan, economy’, ECONOMIC TIMES, (December 12, 2020, distinguished fellow and head of the Nuclear and 01:35PM), Space Policy Initiative at the Observer Research https://economictimes.indiatimes.com/news/econo Foundation in New Delhi, India, about the state of my/policy/view-opportunities-india-should-leverage- U.S.-India ties and Indian foreign policy in 2020 to-make-it-a-global-post-covId-model- 531 ALJAZEERA, (December 12, 2020, 01:38PM), economy/articleshow/75953919.cms?utm_source=c https://www.aljazeera.com/news/2020/07/australia ontentofinterest&utm_medium=text&utm_ -rejects-beijing-south-china-sea-claims. campaign=cppst. 532 Bill Hayton, an associate fellow in the Asia-Pacific 529 P. Kennedy, The Rise and Fall of the Great Powers Programme at Chatham House (1989), at xv, xxii. CORPUS JURIS|177
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in international organisations, one notably not a less- known phenomena534. being the European Union program to provide financial help in the fight of nations China’s Mission of getting to MARS: against COVID, however this would not be Many countries are beginning to use satellites sufficient because the losses in this region in their region in order to enhance their have been particularly huge considering the economic and political sphere and dominate low-development in health and medicine, influence on other nations. China is being GDP has naturally declined, the necessity to one of the most influential players in this turn to China as one of the comparatively domain. It’s getting to MARS can be one of stable countries economically due to its the global benchmarks of its achievement massive investments is not an exaggeration of worldwide. It uplifts the Chinese society and the power it might yield. In the light of all marks its entrance to the elite-space club 50. this, the “Belt and Road Initiative”533 might It is one way or the other technological get a boost because of the possibility of diplomacy in which one country supersede economic recovery due to the industrial the other by helping them. Considering the growth it might yield. However, the example in which Soviet Union made it possibility of nations opposing the initiative possible for an Indian astronaut to flew to in light of recent events, as said by Wang Yi, space through Soyuz T-11535. Chinese foreign cooperation minister, on BRI, which have only failed countries and Many nations lack resources financial or empowered China as another step to its technological capacity, thus are incapable of hegemonic stand is not too far- specifically having the satellites on their own. They in considering various debt traps (for instance, turn collaborate or let the other country Sri Lanka) or, the failing of the massive launch it on their behalf. These covers direct investment of China in Africa for the latter, home television services, disaster however the fact that it has only increased the management support, internet services, etc. former’s stand in the shoe industry. Also, the Recently, China is keen to dominate the fear that China has instilled in Central Asia is global world with its space diplomacy goals
533 Aleksey Asiryan, ‘Post-COVID, China Set to Gain in 534 Supra note 475 Central Asia’, THE DIPLOMAT, (December 12, 2020 535 ‘Soyuz T-11’, WIKIPEDIA, (December 12, 2020, 01:40 PM), https://thediplomat.com/2020/07/post- 01:45PM), https://en.wikipedia.org/wiki/Soyuz_T- covId-china-set-to-gain-in-central-asia. 11. CORPUS JURIS|178
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in while other countries like India and Japan are leading to its increase of space diplomacy as focusing on finding a wave for development well. and balancing both trade and commerce. China, having high level of technological China-Europe relations during the capacity puts it in a great place for bargaining pandemic: In the initial phase when China in International market. The juggling was keen and quick in providing help to some question popping in the mind is- What is of the most COVID affected regions, there China’s strategy with it comes to helping was appreciation from some corners- mostly other countries with satellites? There has be those countries which were most hit by the to some mission behind it. Many researchers pandemic, however in due course terms like suggest that Chinese government sign “mask diplomacy” and criticisms started contracts with resource rich countries in flooding because of several factors such as- order to secure rights over their markets536. the growing European solidarity to be self- But only getting access to the markets can sufficient while dealing with the pandemic, never be just it, there has to be some major effects to counter what has been called by the goal behind all the cooperation. Going to EU as “disinformation” spread by China, MARS can be defined as one of the major some reports outlining the bad state of some achievements for China to cater to its bigger medical masks and equipment’s from China, goals. Once China’s mission is fulfilled it can the dislike of the masses as well as leaders of offer space infrastructure to the world at EU towards China’s hegemonic efforts537. bargaining rates plus can also show its leadership across the globe. Moreover, with The fostering of better Indian-EU this goal, China can come closer to relations: The virtual G20 summit and the developing friendly relations with its preparation of India for the same is one of neighbour countries as well. Given the the much-awaited international order events pattern of success, days are not far when in line. With public health being the most China will eventually accomplish this goal pertinent challenge globally, technology and
536 Tiezzi, Shannon, ‘China's Space Diplomacy’, THE 537 Erik Brattberg and Philippe Le Corre, ‘No, DIPLOMAT, (December 12, 2020, 01:48PM), COVID-19 Isn’t Turning Europe Pro-China (Yet)’, THE http://thediplomat.com/2013/12/chinas- DIPLOMAT, (December 12, 2020, 01:50 PM), spacediplomacy. https://thediplomat.com/2020/04/no-covId-19- isnt-turning-europe-pro-china-yet/. CORPUS JURIS|179
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in innovation also occupies the center, naturally Council President has gone to the extent of the “virtual” summit is in itself an implication calling Japan a very strong EU ally in order to as to how technological solidarity has now defend trans-civilization. European become important. The possibilities have Commission539 President Ursula von der been seen in the light of India’s robust drug Leyen also expressed that it is mutually manufacturing capabilities and the EU’s agreed between the two that there would not technical expertise; a partnership naturally be unnecessary barriers imposed in the born out of the dependence of European nature of trade restrictions so as to ease trade countries on Asia for healthcare equipment. solidarity in consonance with WTO The EU and India share a mutual objective in principles. What must be noted here is the designing standards in the538 technological concern which Yasuaki’s concept of trans- arenas too. civilizational world is that the international law jurists should be mobile towards,” The fostering of better Japan-EU disclosing prejudiced and unlawful regulatory realities relations: Tokyo - EU alliance in terms of and (in) advancing surrogate realities to be socially the fact that the signing of an Economic framed for a finer, or at least less wicked, world”. Partnership Agreement, on 1st February 2019 The 22 present Japan- EU alliances and even is simply another attempt to go forth in the the EU- India growing solidarity can be direction of multilateralism or trans- called as a manifestation of this principle as civilization rather than hegemony. European propounded by him.
538 ‘India-EU SUMMIT 2020: Partners for a 21st century 539 Jorge Valero, ‘EU and Japan commit to avoIding rules-based order’, OBSERVER RESEARCH ‘unnecessary barriers’ in times of COVID-19’, EURACTIV, FOUNDATION, (December 12, 2020, 01:50 PM), (December 12, 2020, 01:50 PM), https://www.orfonline.org/expert-speak/india-eu- https://www.euractiv.com/section/economy- summit-2020-partners-for-a-21st-century-rules- jobs/news/eu-and-japan-commit-to-avoIding- based-order/. unnecessary-barriers-in-ti mes-of-covId-19/. CORPUS JURIS|180
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
The United States and China both have strategic interests in the shorelines of South China sea due to their business, security and sovereignty issues. The South China sea is one of the major objects of gunboat diplomacy prevailing from both the sides of the world, though it initially was started by United States. Joining the dots from gunboat to trans-civilization, it is noticeable that China is defying its own base grounds just for the sake of its own country. From showing its aggressive move at the Line of Actual Control (LAC) to its trans-civilization of post-COVID, China’s getting to Mars, all are its extreme missions to capture a dominating place in the market. Not to forget China’s promises of not touching Taiwan’s independence till at least 2047 is just a mere vow, however China is always known of not standing by its word. During the pandemic when all the countries are trying to cope up with their economies, China is abruptly applying its aggressive schemes to basically all the sectors. Also, the Asian perspective of trans-civilization makes it pretty evident of India’s relations with US amidst the eastern Ladakh crisis where it is focuses on developing stronger alliance of US-India, thus not letting China become the ultimate power and in turn encouraging its gunboat diplomacy. Both the nations are concentrating on Asia being the multi power and not driving the whole potential into an economy driven by aggressive diplomacy. In the course of pandemic, it is highlighted that China is helping economies like Europe but gradually it proved to be just another dialogue by China. With the countries understanding the importance of trans-civilization, it is seen that international foreign relations are being considered a part of development of economies keeping in mind the India-EU submit.
Xi Jinping vision of the shared future argument for all the countries is predominantly refuted by its varied policies and strategies; one of them being the BRI. It has been attracting various critics and involves pushing countries into the vicious circle of economic colonialism, debt traps and corruption. Also, it has been seen that China’s diplomatic ties accompanied with gunboat are taking a new level specially noted, when it took away the independence of Taiwan by indulging itself in making a security law for the territory. Also being attentive to the incidents involving China with Vietnamese and Philippines respectively it can be highlighted that China favors none and just wants to exploit every other natural resource in its way for its own good.
CORPUS JURIS|181
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
All these depicts the actual vision of China i.e.- governing all the potential economies and being the only leading competency in the world. On the whole, it is seen that there is a close disagreement between shared future’s vision and gunboat diplomacy’s action by Xi Jinping and as well as the need of trans-civilization in the current world among all the countries so whenever a pandemic like COVID needs tackling- all of the nations can join their hands and tackle it effectively. In turn not just letting China emerge as a dominating nation amongst all of the others.
CORPUS JURIS|182
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
MEDIA TRIAL & THE ADMINISTRATION OF JUSTICE
-VIKASH KUMAR*
ABSTRACT
Media has now reincarnated itself into a ‘Public Court’ and has started interfering into Court proceedings so much so that it pronounces its own verdict even before the Court does. It completely overlooks the vital gap between an accused and a convict keeping at stake the golden principles of ‘presumption of innocence until proven guilty’ and ‘guilt beyond reasonable doubt’. The Apex Court observed that the freedom of speech has to be carefully and cautiously used to avoid interference in the administration of justice.
If trial by media hampers fair investigation and prejudices the right of defense of the accused, it would amount to travesty of justice. The Court remarked that the media should not act as an agency of the Court. The Court commented “Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold through the process of media trial and that too when the investigation is pending.”540
Though, there are also few cases in which media works as agent to secure justice like in the case of Jessica Lal (Commonly known as Delhi murder case) in which intense media pressure plays a vital role. The above arguments raised an important question that whether media trial violates the basic principle of fair trial or work as agent to secure justice? From the recent trends in which every big media house is in the race of TRP and forgets their basic values. Recently, 10 lacs fine on one of the Media houses in Kathua rape case is the prime example that how the media forget their duties.
This paper briefs about the constitutional safeguards to the media. The probable conclusion will be that how improperly article 19 is used to prevail over fundamental right of the accused specially mentioned in article 21 i.e., Right to fair trial. This paper also emphasis on the
* Student, 5th Year, BA LLB (H)., UPES School of Law, Dehradun. 540 Sidhartha Vashisht, Manu Sharma v. State (NCT of Delhi), AIR 2010 (SC) 2357. CORPUS JURIS|183
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
reasonable steps which need to be taken to maintain a balance between both of these. The research method adopted is doctrinal which involves pre-existing resources only.
KEYWORDS: Fair Trial, Freedom of Speech, Media trial, Constitution, Natural Justice.
CORPUS JURIS|184
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
BACKGROUND knowledge on the concerning issues happening throughout the country & world The fundamental right of freedom of speech and take a neutral stand on these issues which and expression (hereinafter referred as FoSE) includes all aspects of the country like social, is not explicitly given to the media or press political and economic life544. but to the citizen of India as mentioned under the Constitution of India541. The But nowadays media houses proclaim Hon’ble Supreme Court in the case of Sakal themselves as court and forget the two-basic Papers v. Union of India542, highlighted the jurisprudence of criminal justice system i.e., freedom given to the press is regarded as a presumption of innocence until proven guilty “species of which freedom of expression is a & prosecution need to prove a guilt beyond genus”. In democracy like India, FoSE plays reasonable doubt545. The media trial has a pivotal role in the formation of public violated the right to fair trial which is one of opinion on political, economic, social the fundamental rights of the accused as matters. No democracy can sustain in the mentioned in article 21546. Hon’ble Apex absence of FoSE as it guarantees life and court in the case of Zahira Habibullah Sheikh liberty of the individual as well as group543. & Anr. V. State of Gujarat & Others547, emphasized on the three basic elements of Emphasizing on the freedom of press fair trial, first the trial must before an (referred also as media), is to create a fourth impartial judge, a fair prosecutor to prosecute pillar of democracy to check and balance and an atmosphere of judicial calm during the whether any government or any executive trial548. But whether the media trial really authority is not doing any arbitrary, irrational promotes the atmosphere of judicial calm or or erroneous work. Apart from this the main whether the media trial influences the Judge duty of the press is to provide comprehensive in any way is an important question. Also,
541 INDIA CONST. art. 19, pt. 3. MONDAQ, (Sept. 16, 2013), URL- 542 Sakal Papers v. Union of India, AIR 1962 SC 305; https://www.mondaq.com/india/human- AIR (1962) 3 SCR 842. rights/262924/media-trial-versus-free-and-fair- 543 M.P JAIN, INDIAN CONSTITUITIONAL LAW administration-of-justice-need-for-guIdelines. (10th ed., Lexis Nexis 2018). 546 INDIA CONST. art. 21, pt. 3. 544 Indira Jaising v. Registrar General Supreme Court 547 Habibullah Sheikh & Anr. V. State of Gujarat & of India, (2003) 5 SCC 494 (India). Others (2004) 4 SCC 158. 545 Mithilesh Kumar, India: Media Trial Versus Free and 548 RV KELKAR, CRIMINAL PROCEDURE (5th ed., Fair Administration of Justice: Need for GuIdelines, Eastern Book Company, 2018). CORPUS JURIS|185
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in this paper specifically deals with the direct refusal for serving liquor by Manu Sharma- conflict between FoSE of the media and the Son of then Haryana Congress leader Venod right of the accused i.e., fair trial. In this paper Sharma. The trial acquitted all the nine we will discuss the few instances where the accused on the ground of lack of evidence & media plays both a positive and a negative uncorroborated testimony of the role to influence the judgment. Furthermore, witnesses551. we will also discuss the reasonable restrictions required to regulate the content It was the media campaign who influenced of the media as to respect the rights of the people to gather at New Delhi’s India Gate accused and the constitutional validity of to protest denial of Justice. Later on, News such restriction that whether such channel NDTV started an initiative named restrictions come under the purview of article “Fight for Jessica Lall” a campaign in which 19(2)549 or whether these restrictions need to citizen of India can send SMS this initiative expressly mention under article 19(2)? was the backbone of the support that this case got. Also, Tehelka a news magazine has THE POSITIVE SIDE OF THE MEDIA conducted a three months continuous sting operation on the hostile witness to expose Though, the objective of this work is to money and muscles involved in this case. criticize the media trial but let’s discuss both After this during the appeal in the Hon’ble side of the coin to decide which side is High Court, convicted Manu Sharma and stronger. Media activism often plays a pivotal two other accused who were found guilty552. role in securing justice. In Sidhartha Vashisht, Manu Sharma v. State (Nct of Delhi)550, popularly Further, in the State of NCT of Delhi v. Ram known as Jessica Lall murder case in which Singh & Another553, commonly known as intense media pressure play a vital role. Nirbhaya Rape case also emphasize that how Jessica Lall was shot at a party just because of media forces people to move out from their
549 INDIA CONST. art. 19, pt. 3. 552 Asmita Nandy, Jessica Lall Case: Murder, a Media 550 Sidhartha Vashisht, Manu Sharma v. State (Nct of Campaign, Justice & Forgiveness, QUINT, (Oct. 07, 2019) Delhi), 2010 AIR SC 2357. URL-https://www.thequint.com/explainers/jessica- 551 Harish Nair, Trial Court was in a hurry to acquit Manu lall-case-sabrina-lall-on-manu-sharma-explainer. Sharma, HINDUSTAN TIMES, (Dec 22, 2006), URL- 553 Smt.B.T.Annapurna vs Sri.K.Narayana Raju 2014 https://www.hindustantimes.com/india/trial-court- AIR SC 1398. was-in-a-hurry-to-acquit-manu-sharma/story- W8a2j2Hlz pHrNDWFOmE1RP.html. CORPUS JURIS|186
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in comfort and raise voice for the issues of punishment for the crime against women and women safety and on the increase number of introduced and specify many different crimes sexual assaults on women. This incident as well which occurs against a woman. shock the entire nation that a girl is not even safe in the capital city. It can be deduced from the above- mentioned incident that because of the Because of the 24*7 intense media coverage activism of media the public started the whole generation stood together and protesting for the stringent laws and the demanded rigorous punishment including parliament realizing the need of the hour death penalty for those who were liable for introduced the specific amendment. Hence, this shameful act. Quoting a specific incident it was the media that triggered the entire in which Times of India used its first page to incident and because of which the specific highlight this menace by stating that ‘Enough amendment was introduced in the criminal Talk. Let’s Make Women Safe’. This article law. was published on 19 December 2012. THE NEGATIVE SIDE OF THE MEDIA The judgment was in favor of the victim as the Hon’ble court has served the capital As we know every coin has two faces and one punishment which was the need of the hour. face may be more grotesque as compared to After this judgment the main thing is that the other. Same in the instant scenario the because of the intense media activism, people negative role of the media i.e., the media trial start protesting in huge in number has large impact on the society as well as on throughout India demanding for stringent the right of the accused. Basically, in a media laws for the crimes against women554. In trial, media treats themselves as a court of law result of that Rajya Sabha passed a legislation and declares an accused guilty even before named “The Criminal Law (Amendment) the court does555. Act, 2013” which includes serious
554 Annurag Mitra, Media activism in Delhi gang rape case, 555 Ankuran Dutta, Media Glare or Media Trial: Ethical EXCHANGE 4 MEDIA, (Oct. 07, 2019), URL- Dilemma between two Estates of India Democracy, https://www.exchange4media.com/media-others- RESEARCH GATE, (April, 2015), URL- news/vivIdmedia-activism-in-delhi-gang-rape-case- https://www.researchgate.net/publication/27463366 52025.html. 2_Media_Glare_or_Media_Trial_Ethical_Dilemma_ between_two_Estates_of_India_Democracy. CORPUS JURIS|187
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Media Trial vs. Right to Fair Trial fabricated prosecution story by two different In the case of Nupur Talwar & Ors. V. Central investigation authority. Bureau of Investigation & Anr.556, media played a negative role by influencing the mind of Also, the circumstantial evidence present in people & court and convicting the innocent. the case doesn’t prove the guilt of the As many intellectual believes that the media accused beyond reasonable doubt. trial has a major role in the conviction of the Furthermore, the mental element of the accused, but fortunately, the Hon’ble High accused was also not established but just Court of Judicature at Allahabad set aside the because of the media trial which influences conviction order of the Sessions Court as the lower court judgment and lead to the there were no strong evidences and even the conviction of the innocent parents. In an circumstances were not against them. The appeal, the Hon’ble High Court of Allahabad brief facts of the incident are a 13-Year-old set aside the conviction order by stating the girl Aarushi Talwar was found dead in her prosecution story was unreliable & also there bedroom in Noida on May 16, 2008557. was no uniformity between both of the Initially, the prime suspect was the servant investigation authority, as the circumstantial but later on he was also found dead in the evidence was also not established and roof of that house. The investigation began completing the chain. Hence, the basic and the police find their easy target i.e., their requirements that the prosecution need to parents as the accused. The direct media prove the guilt of the accused beyond intervention at the crime scene not only reasonable doubt was not done in the lower tampered the evidence but daily media trial court, and the lower court has done an error during the news prime time also forces the in the conviction558. audience to accept that deceased parents were liable for the act. The media trial also Furthermore, one of the landmark example influenced the lower court judgment who of media trial was the case of Godhra riots in convicted the innocent by relying on the which the prime accused was Hon’ble Prime
556 (Nupur Talwar v. CBI, (2012) 11 SCC 465. noIda-cbi-key-evIdences-that-night-at-flat-l-32- 557AniruddhaGhosal, AarushiTalwarMurderCase- 4900539/. TheFullStory, THE INDIAN EXPRESS, (Jun. 25, 558Devika, Aarushi Talwar Murder Case, SCC ONLINE, 2017), URL- (Oct. 03, 2019), URL- https://indianexpress.com/article/india/aarushi- https://www.scconline.com/blog /post/tag/aarushi- talwar-murder-case-rajesh-nupur-talwar-hemraj- talwar/. CORPUS JURIS|188
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Minister Mr. Narendra Modi (then Chief Media Trial vs. Right to Privacy Minister of Gujarat) was accused as he was Media trial not only affects the right of the the mastermind behind 2002’s killing559. The accused but also affects the right of the media on the first instinct has declared him victim i.e., Right to privacy mentioned under guilty. The presumption of innocence is myth article 21561 and also mentioned in other for them. Here, in this without having proper statutes below referred. In the Kathua rape trial, without giving him the opportunity to case where an eight-year-old-girl was gang defend, with compiling with the principle of raped and killed in the state of Jammu & natural justice like Audi alteram partem. The Kashmir, the Hon’ble Delhi High Court had media declared him guilty and liable for the taken Suo Moto cognizance and imposed a mass killing. But fortunately, in 2014, the fine of Rs. 10 lakhs each on 12 media Hon’ble Hugh Court of Gujarat has given a houses562. As in the instant case the personal clean chit to him as there were no evidences details of the victim were telecasted which is against him and the prosecution failed to prohibited under different statutes563 such as prove the guilt beyond reasonable doubt per section 23564 prohibits any kind of which is one of the basic essential to prove reporting or comments which may have the the guilt of the accused. Because of that effect or tarnishing the reputation or media trial, even till now many parts of the violating the privacy. Also, section 228A565 society believes him that he is liable for the focuses on the same issues that the same which means the audience has more publication with regard to the identity of a trust on the media as compared to the victim of sexual offence, then the liability will judiciary560. be of fine and two years’ imprisonment or
559 Shreeya Sinha, Timeline of the Riots in Modi’s Gujarat, https://www.business-standard.com/article/news- THE NEW YORK TIMES, (Aug. 19, 2015), URL- ani/kathua-case-delhi-hc-slaps-rs-10-lakh-fine-on- https://www.nytimes.com/interactive/2014/04/06/ media-houses-for-revealing-victim-s-Identity- world/asia/modi-gujarat-riots- 118041800350_1.html. timeline.html#/#time287_8 514. 563 Aditi Singh, Kathua Rape. HC imposes Rs 10 lakh fine 560 Manasi Gupta, Trial by Media, Is it fair, CIVIL on 12 media houses for disclosing victim’s Identity, SERVICES INDIA, (Oct. 01, 2019), URL- LIVEMINT, (Oct. 09, 2019), URL- https://www.civil https://www.livemint.com/Politics/LlVzIicAudFIG serviceindia.com/subject/Essay/trial-by- 3AG8bYZ6K/Kathua-rape-HC-imposes-Rs10-lakh- media1.html. fine-each-on-12-media-hous.html. 561 INDIA CONST. art. XXI, pt. III. 564 Protection of Children from Sexual Offences Act, 562 ANI, Kathua case: Delhi HC slaps Rs 10 Lakh fine on 2012, No. 34. media houses for revealing victim's Identity, BUISNESS 565 Indian Penal Code, 1860, No. 45. STANDARDS, (Apr. 18, 2018), URL- CORPUS JURIS|189
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in both. The ambit of the prohibited Furthermore, the reasonable restriction publication is that no information will be mentioned in article 19(2) specifically shared from which the identity of the victim includes the contempt of court as well. can be traced like name, parents’ details, school name, address, photographs of the Contempt of Courts Act, 1971 family and many others. Hence, it can be The word ‘Criminal Contempt’ defined in deduced from the above mention argument section 2(c) of the act which means the that the media is not only affecting the right publication in words, spoken or written or by of the fair trial of the accused but also right signs or by visible representations, or of the privacy of the victim and her family. otherwise which can create prejudices or interference to the due course in any judicial PRINCIPLE OF CONTEMPT OF COURTS proceedings or affects or tends to interfere the administration of justice in any manner568. Initially, there was no difference between Furthermore, there is also an exemption ‘Civil’ or ‘Criminal’ attempt. Prior to 1971, it which is mentioned in section 3(1) as if the was cleared that prejudicial publications even publisher had reasonable ground to believe prior to the arrest of an individual is termed that the there is no proceeding pending. Also, as contempt. Later on, the Supreme Court in fair and accurate reporting of judicial the case of Surendra Mohanty v. State of Orissa566 proceedings are protected under article 4. that registration of FIR is not the starting point of the criminal case any prejudicial The right of genuine criticism publications even before the judgment are For a health democracy there must be a entitled for immunity from law of contempt. healthy criticism. No organs of the state are But the Hon’ble Apex changes its own immune from criticism either its parliament perspective in the case of A.K. Gopalan v. or judiciary. In Andre Paul Terence Ambard v. Noordeen567 by stating that any sort of Attorney General of Trinidad and Tobago569 the prejudicial publication made just after the court stated that there is no wrong if the arrest could be contempt of court. criticism is in good faith, the path of the
566Surendra Mohanty v. State of Orissa... AIR 1958 Ori 569 Andre Paul Terence Ambard v. Attorney General 168, 1958 Cr. L.J. 1055. of TrinIdad and Tobago (1936) 44 LW 15: AIR 1936 567A.K. Gopalan v. Noordeen 1969 (2) SCC 734. PC 141. 568 The Contempt of Court Act, 1971, No. 70. CORPUS JURIS|190
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in criticism is a public way, the criticism is good society and public and Mr. Sibal remarks was and healthy for democracy if it is not done in his concern about the state of things and malice motive or to interfere with the corrective measures. Hence Mr. Sibal was not administration of justice. liable for criminal contempt571.
Kapil Sibal’s case is one of the examples Rule of Sub-Judice where the court differentiated between Implementing the rule of Sub Judice of contempt & criticism, the full name of the England in India- in Indian law we have rule case is Hari Singh Nagra v. Kapil Sibal570, Kapil of Sub Judice as mentioned in section 10 of Sibal statement was mentioned in the the CPC, 1908 where the same matter on the souvenir of Mehfil-e-wukala i.e., a cultural same issue cannot be taken before another association of practicing advocates of court from the court until the case is Supreme Court. In that Kapil Sibal raised pending572. In India the prohibition is only concern with regard to falling standards of with regard to the court but in the countries legal fraternity and of judiciary. The brief of like England the ambit is quite wide in nature the relevant portion is Judges have started as no one has right to discuss the particular disciplining lawyers but they themselves need case or trial pending before the court or being disciplining first. The judiciary in whole failed considered by a judge. As publicly discussing to eradicate the evil of corruption. The the case is a direct intervention to the due phenomenon includes giving judgment in process of the court not even this also MPs favor by taking monetary benefits, giving or Lords are barred from referring to a decision in the favor of state, kowtowing with pending court case, but only house is entitled political personalities etc. A committee must to discuss under the parliamentary privilege require to be setup by Supreme Court Bar to discuss any pending case573. Such steps association to bring the modal of law and must need to be taken so that the media suggest it to the legislature. The court in this before initiating media trial must respect the case stated that judges are accountable to
570 Hari Singh Nagra v. Kapil Sibal (2010) 7 SCC 502. 572 The Code of Civil Procedure, 1908, No.5. 571 Arvind, SC dismisses contempt plea against kapil sibal, 573 Sub Judice, PARLIAMENT.UK, (Sept. 21, The INDIAN EXPRESS, (Jul. 15, 2020), URL- 2019),URL- https://www.parliament.uk/site- http://archive.indianexpress.com/news/sc- information/glossary/sub-judice/. dismisses-contempt-plea-against-kapil-sibal/647052/. CORPUS JURIS|191
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in obligation by the government with regards to investigation and help them to move out of the due process to ensure justice. the city or from the reach of the investigation authority. COURT ON MEDIA TRIAL In Saibal v. B.K. Sen575, the court stated that The Delhi High Court in Mother Dairy Foods the investigation by newspaper is quite & Processing Ltd v. Zee Telefilms574, highlights mischievous as to conduct the investigation the tragic approach of media that how and publish it for which a man has been journalism and ethics are two different poles. arrested. The newspaper must refrain The role of the media to act as a facilitator in themselves from doing the same when the the functioning of the democratic process by matter is already in the court or in the tribunal relying on honesty, accuracy, impartiality, as it tends to intervene with the course of respecting the individual involved. But the justice. unsatisfactory demand of Television rating points diverted the journalism from its path. Let’s understand the media trial from this Now, the objective of the media managers is story, for example police arrested an accused to focus more on “what public is interested and the accused has given confession that he in” instead of “what is in public interest”. has committed the act. The same has been Not only the privacy of the suspects or telecasted & published by the media. accused is in question but the privacy of the Interestingly, we know that the confession to victims and the witnesses are also very fragile the police is not admissible576 and has no and can be infringed easily by the direct evidentiary value against the accused. But intervention of media-houses. Furthermore, when the media telecast the same all the the investigation process was also affected by viewers formed their opinion that the the media trial as blaming daily by the media accused has committed the act. After that the to the investigation authority not only let accused give the statement before the down their morale but also helped the magistrate and denied about the existence of accused to know the minute details of the confession, then people will consider the
574 Mother Dairy Foods & Processing Ltd v. Zee 575 Saibal v. B.K. Sen AIR 1961 SC 633. Telefilms 2005 Delhi 195, 117 (2005) DLT 272, 2005 576 The Indian Evidence Act, 1872, No. 01. (80) DRJ 74, 2005 (30) PTC 219 Del. CORPUS JURIS|192
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in accused as liar and a hatred against the action writ was pending before Hon’ble High accused is generated by the society just Court to challenge the West Bengal Milk because of the media trial. As in this example Products Control Order, 1965 but despite of the due process of law has not been followed that the Chief Minister broadcasted in the and the presumption of innocence until favor of the West Bengal Milk Products proven guilty is even not taken into Control Order, 1965. Court said that the consideration. Imagine after the trial the Chief Minister is guilty for contempt of court person is acquitted by the court, then, the as he interferes with the administration of question arises will the society accept him? justice but let him go without the Will he have treated as innocent?577 punishment580.
Media Trial Effects on Judges The Hon’ble Apex Court in the Reliance As we know that a Judge is also a human, so, Petrochemicals Ltd. Vs. Proprietors of Indian there can be chance that Judges can directly Express581 has relied upon the observation of or indirectly be influenced, at least Justice Frankfurter in John D. Pennekamp v. subconsciously or unconsciously while State of Florida582, the working of the judiciary deciding a case because of the intense media will not be proper if the press intervene as the trial. Though, the Hon’ble Apex court in duty of the judges is to decide a case entirely plethora of cases agreed that these on the facts, evidence & testimony presented publications interfere with the administration before the court. Here, the court has of justice578 but not categorically explained considered the media as external pressure that whether the judges get subconsciously which can influence the judgment. The same influenced with these publications or not. Petrochemicals judgment was highlighted in Like in the case of P.C. Sen (in Re)579, a civil
577 Justice M. Jagannadha Rao, Trial by Media Free Speech 580 Vikram Doctor, The improbable story of hoe Bengal tried and Fair Trial under Criminal Procedure, 1973, LAW to ban Bengali sweets, ECONOMIC TIMES, (Jul. COMMISSION OF INDIA, (Aug., 2006), URL- 2015),URL- http://lawcommissionofindia.nic.in/reports/rep200. https://economictimes.indiatimes.com/blogs/onmy pdf. plate/the-bitterest-ban-the-improbable-story-of-how- 578 Urvashi Singh, Trial by media a threat to administration bengal-tried-to-ban-bengali-sweets/. of justice, LEXOLOGY, (Aug., 2017), URL- 581 Reliance Petrochemicals Ltd vs Proprietors of https://www.lexology.com/library/detail.aspx?g=52 Indian Express 1988 (4) SCC 592. a59428-9ce1-4fe5-8af9-f10750d37ca4. 582 John D. Pennekamp v. State of FlorIda (1946) 328 579 Jaspal Singh And Anr. vs State Of Haryana AIR US 331. 1979 SC 1821. CORPUS JURIS|193
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Union of India v. Naveen Jindal583 in which the code, 1860 and presented several documents court emphasized on the first US amendment to prove the charges against the accused and as the nature is absolute whereas the also to make him liable. The husband in fundamental right under article 19(1)(a) of defense contended that the woman was the constitution of India, 1950 are subject to suffering from Schizophrenic Psychotic and some reasonable restrictions as permitted in submitted many documents to prove this. article 19(2). When the case was pending in appeal before Supreme Court, few articles were published Also, in Rao Harnarain v. Gumori Ram584, the highlighting the contention of only court stated that administration of justice has prosecution. The Supreme Court in this high values as compared to the liberty given stated that as this is the intervention of to the press and the primary duty of the press media/press in the administration of justice is to report an issue and not to adjudicate on and the publisher, editor & journalist must the issues reported. As it targets the larger observe cautioned in indulging in trial by the audience so the responsibility is also more media when the issue is sub-Judice586. and the media must respect the reputation of the person involved in the dispute. Though, it cannot be mathematically proved that whether Judges get subconsciously Furthermore, in M.P. Lohia v. State of West influenced by several forces or not but from Bengal585 Hon’ble court highlighted how the above case laws cited, it can be easily media interferes with the course of deduced that yes there are certain administration of justice by publishing one circumstances or cases where the court itself side articles or representing the point of one accept that certain publication which are side only. Like in this case a woman prejudicial and interferes with the committed suicide in her parent’s house, the administration of justice must need to be parents contended that this is a case of dowry prohibited otherwise it will be against the death under section 304-B of Indian Penal right of the accused.
583 Union of India vs Naveen Jindal & Anr 2004 (2) 586 Dr. Shashi Srivastava, Trial by media vs. right of fair SCC 510. trial, IJTR WEB JOURNAL, (Aug. 2017), URL- 584 Rao Harnarain v. Gumori Ram AIR 1958 Punj. 273. http://www. ijtr.nic.in /webjournal/16.htm. 585 M.P.Lohia vs State Of West Bengal & Anr 2005 (2) SCC 686. CORPUS JURIS|194
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ANALYZING THE 200TH LAW COMMISSION contempt of court. These hostile opinions REPORT can also create a negative impact on the judges, and which may lead to biasness in the The commission stated that according to our approach of the decision making by the law the accused is entitled for fair trial but judges”. today the media forgets their basic values and consider no difference between guilty, Also, publication of past criminal record is accused, suspects & culprits etc. all the also not allowed as it is clearly mentioned in categories are same in the media trial. The section 236590 that the previous conviction main objective of the report is to prohibit did not need to mention throughout the trial prejudge or prejudice the case and safeguards but only after the conviction order, as the the right of the accused during the trial587. main objective behind this is to avoid any kind of biasness which is prejudice to the Publication recognized as prejudicial to accused as after knowing the previous accused conviction Judges may form a negative This is quite subjective and depend on opinion against the accused and previous prudence to prudence to define categorically conviction is only be relied to set the that what are the categories of publications quantum of the punishment. by media which are considered as prejudicial to an accused, such are588; Secondly, the most prohibited thing is the publications of confession of accused, as in Firstly, the publications which tried to Criminal trial system the confession of the ‘establish the character of accused or accused to police is inadmissible and cannot previous conclusions. In R v. O’Dogherty589, have any evidentiary value in the court of the court emphasized on the observations law591 and publication or broadcasting of which can “used to excite feelings of hostility these confession may have the tendency to towards any individual who is charged under affect the impartiality level of the court and any offences can come under the ambit of
587 Supra note 577. 590 The Code of Criminal Procedure, 1973, No. 2. 588 Supra note 568. 591 Indian Evidence Act, 1872, No. 1. 589 R v. O’Dogherty 5 Cox C.C 348 (354) (Ireland). CORPUS JURIS|195
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in can come under the ambit of serious Even in such cases witnesses who have not contempt. then seen him will create perspective and may belief the published photo same as the Thirdly, the publications which reflect the offender. Also, it questions the evidentiary merits of the trial as it is the obligation of the value of such identification in the trial. This court to deal with the merits of the case by issue can also be seen from another using the procedure such as cross perspective in recent time, like publication of examination etc. and such prejudicial photographs may lead to the infringement of publications has the potential to anticipate right to privacy which is fundamental right the facts and influence the decision of the under article 21 of the Constitution of India court. In Shamin vs. Zinat592, the comments on after Puttaswamy Case594. the merits of the case was published during a pendency of appeal in the High Court. The Fifth, there must be prohibition in court was in the perspective that the publication of activities of police, like for publication of the opinion during the example sometime the investigation must pendency of the appeal amount to contempt require an element of surprise for the of the court and this publication was accused. As in many cases the accused leave interference into the course of justice. the state and shift to some other place and just because media or press Fourthly, the publications of photographs publish/broadcast each & everything with may also lead to create adverse impact on the regard to investigation, it was quite easy for right of the accused like in the case of Attorney them to hide. In HM Advocate v. George Outram General v. Tonks593, the court highlighted that & Co Ltd.595, in this a newspaper agency was after the publication of the photograph of the fined a sum of 2000 pounds for publishing an accused, and it was very easy for the article and publishing about all the alleged witnesses to identify the accused in the trial. evidence which have highly incriminating character tending to rebut the presumption of innocence.
592 Shamin vs. Zinat 1971 Cr. L5 1586 (AII). 595 Outram & Co Ltd 1980 SLT 13 (High Court of 593 Attorney General v. Tonks 1934 NZLR 141 (FC). Justiciary). 594 Justice K.S. Puttaswamy (Retd.) and Anr. Vs. Union of India (2017) 10 SCC 1 (India). CORPUS JURIS|196
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Sixth, the publication with regard to adverse comment on witnesses must be imputation of innocence can also comes avoided otherwise people will avoid being a under this. Under this concept we must need witness. Also, by reading the adverse to acknowledge that there is very small comment there can be a negative impact on difference between criticism & contempt. In the mind of the judge which was not there in R v. Castro Onslow’s and Whelley’s596, “the the very first place599. publication specifically mentioned that accused was not guilty as they are the victim Ninth, the premature publications of of the conspiracy, but the court convicted evidence must also need to be prohibited as both accused and publishers were held guilty highlighted in the case of R. v. Evening of contempt”. Standard, ex p DPP600, the court briefed about the parallel investigation done by the Seventh, the publication must not create an newspaper agency or press which is a blatant atmosphere of prejudice. In the case of example of ‘trial conducted by media’. As if Zahira Habibullah Sheikh & Anr. V. State of we talk about the value of these evidences, Gujarat & Others597, the court emphasized they don’t have any value even the defense that what fair trial includes and stressed on has not even cross examined them and even the atmosphere of judicial calm, so there is no guarantee that the facts are true or everything against the atmosphere of judicial not. Not only this these parallel calm is prejudice and can cause interference investigations not only intervene the with the due process or administration of authorized investigation but also sometime justice598. leads to tampering in evidences which can ultimately create difficulties in the Eighth, complete prohibition on publications prosecution case. with regard to the criticism of witnesses. As we know the witnesses plays a pivotal role in Tenth, the publications of interview of deciding the fate of the trial. Prima facie, the witnesses can also amount to contempt. As
596 R v. Castro Onslow’s and Whelley’s (1873) L.R. 9 https://cjp.org.in/the-2004-best-bakery-judgement- Q.B. 219. and-its-significance/. 597 Sheikh & Anr. V. State of Gujarat & Others (2004) 599 Supra note 568. 4 SCC 158. 600 Macmillan v Cooper(1924) 40 TLR 833. 598 Vandita Khanna, The 2004 Best Bakery Judgement and its Significance, CJP, (Dec. 01, 2017), URL- CORPUS JURIS|197
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in these publications on television in more fundamental rights, so, there cannot be any dramatic sense reduces the value and force mathematical formula but if we read right to the people to influence their decisions and speech and expression as this is not absolute sometime even the privacy of the witness was in nature as it has some reasonable restriction also infringed, and it may give a chance to which is constitutionally valid. Also, the accused or other to bully the witnesses and concept of administration of justice must also stop them to take part in the trial. be taken into account as justice must not only be done, but it must also be seen to be done. RECOMMENDATIONS The first recommendation is with regard to On the grounds above discussed, there is an the word ‘pending’ used in section 3(1) (2) urgent need to introduce some changes in and explanation clauses (a) and (b) must be this act, before discussing about the changes changed with the word ‘active’. The reason let’s discuss initially about the ambit of behind this as in Indian context the word publication. The ambit of publication is quite ‘pending’ starts from the filing of charge- wide in nature as mentioned in section 2 as it sheet or challan but active has a wide ambit it includes publication in both the media i.e., starts even from the arrest. The Hon’ble print as well as electronic, radio broadcast, Apex court in the case of A.K. Gopalan v. telecast in cable television601. Recently, the Noordeen602, held that the publications even World Wide Web was also inserted in the after the arrest of the accused can come ambit of publication as an explanation of under the ambit of contempt but the word clause(c) of the above-mentioned section. pendency starts from the filing of charge- sheet or challan as even after the arrest the In the direct conflicts between the publications can be prejudice to the accused. fundamental rights i.e., right to speech and The court stressed on the concept of ‘Due expression of media versus right to fair trial Process’ as introduced in, Maneka Gandhi of accused as well as of victims clubbed with Case603 that it is allowed to regulate the right to privacy of all associated to a trial, the publications even before the filing of the question is which will prevail, as both are
601 Supra note 568. 603 Maneka Gandhi vs Union Of India 1978 AIR 597, 602 A.K. Gopalan v. Noordeen 1969 (2) SCC 734. 1978 SCR (2) 621. CORPUS JURIS|198
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in charge-sheet or challan. So, on these grounds 1971 the subordinate court is only entitled to the word ‘Active’ must be substituted. go for reference to the Hon’ble High Court under section 15 (2). The principle of prior restraint must be applied as sometimes the court can postpone As we know that mistake of fact is ground of any such publications which means there exemption but not mistake of Law, this is must be some prior restraint if it is under the applicable everywhere, but it is the duty of ambit of ‘significant risk of serious prejudice’, the state to aware about the prevailing laws. in this case the emphasis must be on the ‘risk’ This means that awareness workshops or any as well as on ‘prejudice’. Also, the campaign in which the authority brief media postponement orders cannot be from the about their duty and constitutional subordinate courts where the case is pending. restrictions in which all the other As mentioned in the contempt of court act, fundamental rights are respected.
CORPUS JURIS|199
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
No doubt there is a direct conflict between FoSE and fundamental rights of the accused, victims, witnesses & everyone associated with the trial. The rights which are in contradiction of right to FoSE by media is right to fair trial & right to privacy. The direct intervention of the media houses, parallel investigation doesn’t only cause prejudice to the accused but also insecurity to the victim & witnesses. The media court follows no rule or principle for them accused, suspect, culprit & guilty are synonyoms or same in nature. They have their own opinion which they present in the nature of facts and influenced the audiences as well as judge in many cases.
According to them presumption of innocence until proven guilty & the concept of beyond reasonable doubt is a myth. The privacy of the victim & the witnesses is also at stake by the media trial as it sometimes discloses all his identity. Though, it cannot be denied that media never acts in a positive way, but this is very rare like in the case of Nirbhaya rape case, Jessica Lal murder case where the activism by the media was one of the external factors to ensure justice but these cases are very rare & countable. But there is a plethora of cases where because of media pressure an innocent had suffered like Aarushi Talwar Murder case in which the innocent parents need to suffer by the intensive media pressure.
The 200th Law commission report approach is more significant as it stresses more on contempt of courts, requiring serious changes like the word ‘pending’ must be removed and changed to ‘active’ as it actively includes even prior to the period of filing of charge-sheet or challan. There also needs to be mentioned, that what are publications that can be prejudicial to the accused like no publication with regard to the character of the accused, no publication with regard to past criminal records, no publication on the merit of the case and no publications of photograph of accused, investigations of police, imputation of
CORPUS JURIS|200
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
innocence, atmosphere of Pre-Judice, criticism of witnesses etc. The prevailing contempt act is not sufficient, and changes must need to be introduced. From these above contentions, it can be stated that the judges may in exception need changes as the media trial have the tendency to influence judgment of the court. A fair trial must need to be respected.
CORPUS JURIS|201
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
MEDIATION AS AN ALTERNATIVE TO PROPERTY DISPUTES
-DEV BHANKARIA* & PRAPTI BHADRA* ABSTRACT
While disputes are inexorable and can be said to be part of daily human relationship, inefficiency in resolving and settling the dispute can cause conflict and resentment in society. In case of conflict, people turn towards courts to resolve such conflicts and to seek justice. However, the time and expenditure levied through litigation to resolve a dispute has led to piling up of cases and thereby caused delay in delivering justice. This has caused a burden on judiciary and has proven to be failure on the part of judiciary to provide speedy justice. It is for this very reason; courts have now started to adopt various Alternate Dispute Resolution (ADR) Methods to provide speedy and cost-efficient justice. There are three main types of Alternate Dispute Resolution Methods, namely: Arbitration, Conciliation and Mediation. Arbitration and Conciliation are practiced on a large scale and have formed an integral part of various business transactions. On the other hand, Mediation is slowly being accepted as a form of daily practice and an alternate method of dispute resolution. In this paper we shall lay our focus on how mediation can be effective in resolution of disputes with respect to property disputes in India.
KEYWORDS: Mediation, Alternate Dispute Resolution, Judiciary.
* Law Student, 4th Year, Pravin Gandhi College of Law, Mumbai. * Law Student, 4th Year, Pravin Gandhi College of Law, Mumbai. CORPUS JURIS|202
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ALTERNATE DISPUTE RESOLUTION – A To curb this lacuna of judicial delay in DESIDERATUM delivering speedy justice, Alternate Dispute Resolution which consists of methods like It is the well - known fact that the ‘justice Arbitration, Mediation and Conciliation have delivering machinery’ is rampantly slow in been recommended and have been India which adds onto the increase in the effectively applied in various aspects of law. number of pending cases, burden on judiciary and delayed justice. It has been On occasions, even the court cited mediation observed that along with long pendency of as it could be less complicated and a faster cases, issues such as judges' absence, repeated mode to induce resolution. The mediation in adjournments and court refusing to simplify divorce cases, property cases, family matters; process adds to judicial delay. Moreover, the aids in holding the issue constrained to the procedures as prescribed in the statues are parties just, and doesn't bring it before public, lengthy and time consuming. Thus, for and reach to a solution maintaining the peace instance, if a person files a petition before the and harmony. high court then on first hearing Court would first have to decide admissibility of the case Mediation encourages the parties to take and, if the case is found fit to be heard then interest in dispute resolution actively and Court may issue notices to the private directly whereby they state the cause of their respondents and calls for the counter dispute, set down options or approaches to affidavits which takes around two to six regulate the dispute and settle on a final months and after which, the petitioner has to decision by coming to a settlement or a mid- file rejoinder to the counter and thereafter way solution. The mediation procedure in the case is listed for final hearing. The time India follows all the general guidelines of taken to hear each case differs and it may take evidence and, examination and cross- from two to ten years and in some cases even examination of witnesses. One of the ten to fifteen years or more for justice to be essential advantages of mediation in India is delivered. Not only the pendency of previous that it is a totally private method of dispute cases, but various other factors like resolution. While resolving the dispute, only unnecessary adjournment by the Counsels, the contesting parties, their representatives strikes, etc. are also responsible for the delay. and the mediator are involved, making the
CORPUS JURIS|203
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in issues of the parties personal and private. The cannot disclose any information related to mediator is an impartial and autonomous the proceedings. third party, who helps the parties to reach a solution. All statements made during the NEED FOR MEDIATION procedure of mediation in India can't be disclosed in civil proceedings or other place Mediation is a process whereby an impartial without the prior consent of all parties in third party is appointed in order to assist a writing. well-organized negotiation between disputing parties and thus facilitate an A mediator’s role is both facilitative and agreeable settlement between them. evaluative. The mediator works together with Mediation is often preferred over the parties to encourage reach a solution, strenuous process of litigation as it is cost however the decision provided by the effective and helps maintain relations by mediator is not binding on the parties. A promoting equitable agreements. In India, mediator encourages and promotes the judicial system promotes disputes, which communication between the parties and can be settled between parties to alternate motivates them to arrive at a friendly dispute resolution under the Code of Civil settlement. Procedure604. The Supreme Court has often promoted parties to take pre litigation The procedure of Mediation in India is mediation as a method of recourse in order completely confidential as any information to settle their disputes before they advance to outfitted by any parties and a report arranged court proceedings. In the case of ‘Afcons or submitted is forbidden and sealed. Any Infrastructure v. Cherian Varkey Consturction’ 605 admission made during mediation can't be the Supreme Court reiterated the importance utilized in some other legal dispute and any of mediation especially in matters related to information provided to the mediator cannot commercial transactions. The Supreme be disclosed to the other party unless the Court also observed that this type of other party explicitly allows the mediator to mechanism is also appropriate for disputes do as such. The mediator cannot be called as with complex transactional issues. In India a witness to testify in any court case and the decision of a mediator isn’t binding over
604 Criminal Procedure Code 1973 § 89. 605 2010 8 SCC 24. CORPUS JURIS|204
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the parties and thus the decision of a would be to take the course of mediation mediator can easily be overlooked. over litigation. Disputes and conflicts often arise because of administrative non- Court rulings have time and time again compliance with the rule of law. Adding to underlined the complexity of India’s land the delay in the India judicial system it is also laws, which sparked disputes and made it pertinent to note that property disputes more of challenge for impoverished farmers which may have a lot of additional costs and people from the rural areas to access excluding the court and legal fees which itself justice. The court systems in India have often is a major drain in the pockets of many. Legal underlined the complexities faced by litigants disputes are often arisen due to non- due to its numerous land laws; these availability of documentary proof for complexities have in turn created a establishing rights over land. There is a wide predicament for the farmers and the spectrum of discrepancies that may arise indigenous people in order to access during acquisition, possession and sale of justice.606 land. Once a dispute is admitted into a court then judicial incapacity leads to pendency of There are more than 1200 laws related to land disputes. One of the most critical causes of in India. Anyone approaching the court must pendency is the overburdening of cases on be prepared for a long wait, as a land the Judges. Several defaults in the judiciary acquisition dispute in the Supreme Court can system leads to delay of justice some of them take up to 20 years to resolve607. 66% of all include the economic and technical civil cases in India are related to land/ difficulties faced by them, moreover a quarter property disputes608. In order to avert this of the cases before the Supreme Court are prolonged process, which may take several land disputes609. years and a lot of funds, a favorable method
606 Rina Chandran, ‘Court battles underline complexity of %20average%20pendency%20of%20a,Supreme% India’s myriad land laws’, REUTERS, (October 18, 2020, 20Court%2C%20is%2020%20years. 11:12 AM), https://www.reuters.com/article/us- 608 Daksh: Access to justice survey 2016, DAKSH india-landrights-lawmaking-IdUSKCN1U501P. INDIA, (October 21, 2020, 10:00 AM), 607 Namita Wahi, ‘Understanding land conflict in India https://www.dakshindia.org/wp- and Suggestion for Reform’, CENTRE FOR POLICY content/uploads/2016/05/Daksh-access-to-justice- RESEARCH, (October 18, 2020, 01:32 PM), survey.pdf. https://cprindia.org/news/7922#:~:text=Again 609 Law Commission of India, ‘Reforms in the Judiciary: %2C%2066%25%20of%20all%20civil,related%20 Some Suggestions’, Report No. 230, (October 21, 2020, to%20land%2Fproperty%20disputes.&text=The 12:18 PM), CORPUS JURIS|205
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Mediation is often proffered when ascertained that a reference to mediation is circumstances as the ones listed above exist. compulsory for court matters. In comparison The void in the number of judges must be to the drawbacks faced by the never-ending filled in order to maintain the judge to litigation it is preferable to have a cost population ratio; more tribunals must be effective, amenable resolution, which is created in order to lift the burden from the formulated by the parties themselves. courts. It is well obvious that parties to a dispute do not want justice to be delayed, IMPLEMENTATION mediation as an ADR plays a vital role in such instances. The purpose of mediation is to As far as the current situation is concerned work with the other parties in order to yield with mediation, it is observed to be a party- a fruitful resolution. Mediation in India is centric or a neutral process wherein the entirely confidential and parties to mediation parties having a dispute would voluntarily along with the mediator are the only ones appoint a mediator to provide them a who are involved in resolving the dispute. solution and resolve the dispute. Recently, the Chief Justice of India (CJI) of India at the third edition of international In India, Private Mediation is practiced on a conference on arbitration in the era of large scale for matters concerning property, globalization reiterated the importance of labour/industrial disputes, recovery of mediation and stated that the ‘need of the money, matrimonial cases. Private mediation hour’ was to devise a comprehensive has been well implemented in India wherein legislation, which contained mandatory pre- parties to the dispute come together to litigation mediation and a remedy for the resolve the issue amicably and mutually unenforceability of an agreement sin appoint the mediator to do so. Mediation mediation610. Moreover, in the case of Salem encourages the parties to participate in Advocates Bar Association, Tamil Nadu v. dispute resolution actively and directly Union of India611, the Supreme Court whereby they explain the facts of their
https://lawcommissionofindia.nic.in/reports/report news/devise-law-to-make-mediation-agreements- 230.pdf. binding-cji-sa-bobde/story- 610Murali Krishnan, ‘Devise law to make mediation’: CJI ARqyLBj7t2oZhQGQKqFPPM.html. SA Bobde, THE HINDU (October 15, 2020, 12:30 611 Writ Petition (Civil) Nos. 496 and 570 of 2002. PM), https://www.hindustantimes.com/india- CORPUS JURIS|206
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in dispute lay down options or ways to resolve settlement including settlement through Lok Adalat; the dispute and make a final decision by or (d) mediation” coming to a settlement. The mediation Since there is no fixed procedure laid down process in India follows all the general rules by the court to conduct Alternate Dispute of evidence and, examination and cross- Resolution Methods various discrepancies examination of witnesses. 612 However, the may occur while resolving a dispute. The decisions of Private Mediation are non- court thereby must formulate a committee to binding on the parties. lay down a fix procedure/ terms by which the ADR may function. Procedures with regards With regards to the Court Referred to the appointment of the Mediator, Procedure, as stated under “Section 89 of conducting of the case, collection of the Civil Procedure Code , Where it appears to the evidence, fees, duration and binding of the court that there exist elements of a settlement which decision shall be laid down to bring may be acceptable to the parties, the court shall uniformity in the functioning of ADR. Since formulate the terms of settlement and give them to the mediation is quicker and cost-efficient parties for their observations and after receiving the alternative to Arbitration, steps must be observation of the parties, the court may reformulate taken to make the decisions made by the the terms of a possible settlement and refer the same mediator binding on both the parties. for (a) arbitration; (b) conciliation (c) judicial
612 Mehak Sharma, ‘Mediation in India’, MEDIATE https://www.mediate.com/articles/mediation-in- INDIA (October 15, 2020, 4:15PM), india-articile.cfm. CORPUS JURIS|207
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
Mediation is a strong and effective mechanism to resolve dispute. India has been developing and implementing mediation as a part of practice in various fields of law. A mediator facilitates the interaction between the parties, encourages communication between them and manages interruptions and outbursts amongst them, he motivates them to arrive at an amicable settlement. With regards to property disputes, mediation is an effective tool as it is not only speedy but also cost efficient in resolving the dispute. Various discrepancies faced by disputers regarding mortgage, title, ownership, lease, selling/purchase of property, can use mediation as a mechanism for redressal. The parties can either by mutual consent opt for mediation or can state it as a primary method of dispute resolution while coming to an agreement. Mediation has so far been proven as an efficacious method in dispute resolution and hence the courts are encouraging the practice of mediation.
CORPUS JURIS|208
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
RIGHT TO EQUAL EMPLOYMENT IN INDIA: A CRITICAL STUDY OF THE INTERNATIONAL CONVENTIONS AND NATIONAL LEGISLATIONS
-SADIA ZEB* ABSTRACT "You can tell the condition of a nation by knowing the status of the woman." -Pandit Jawaharlal Nehru
Woman's right to rise to equal employment has been perceived for all intents and purposes around the world. Factually, it tends to be said that 39.4% of the total world workforce comprises of women.613 As by each spending day, we are arriving at the most significant level of employment, there is a lessening in the proportion of women being employed in various positions, and the change is uncommon. In this manner, while the right to equal work opportunity is perceived, implementation stays a monumental test. United Nations member countries have consolidated the laws which prohibit discrimination in employing, promoting and the working states of women, which are generally comparative with United State, the European Nations, and India yet the essential contrast lie with their implementation.614 In the event of any violation of rights of women concerning employment opportunity, the woman can take the path of litigation, and numerous nations do recognize the right. Regardless, the burden of taking the entire legal framework much of the time demonstrates a procedure to cross. The research paper will talk about the different International Conventions and legislations which deal with the right of women to equal employment. In the wake of referencing the international scenario, the researcher will clarify distinctive position under the Indian Constitution and other statues which ensures balance at the workplace and protect the right of the woman.
KEYWORDS: Women, Employment, Right, Equal, Law.
* Assistant Professor of Law, Asian Law College, NoIda. 613 Female Labor Force, The World Bank, (Aug. 13, 2020), http://data.worldbank.org/indicator/SL.TLF.TOTL.FE.ZS 614 Ibid. CORPUS JURIS|209
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION employed women between ages 15-49 is just 43% vs. 87%.617 Women in India constitute nearly 48.35% (approx.), while men constitute 51.64% As by each spending day, we are arriving at (approx.). The sex ratio of India is 940 the most elevated level of employment, in females per 1000 males in 135 Cr. of the any case, there is a diminishing in the ratio of population. The yearly change in the women being employed in various positions, population is less in comparison to early and the change is intense.618 Along these stages, like in 2016, it was 1.21% (approx.), lines, while the right to equal to work while in 2000, it was at 1.86% (approx.), but opportunity is perceived, implementation in 2019 it was further reduced to 1.20% stays an overwhelming test. United Nations (approx.).615 member countries have incorporated the laws which prohibit discrimination in Women's right to equal employment employing, promoting, and the working opportunity has been recognized virtually states of women, which are generally worldwide. Statistically, it can be said that comparative with the United State, the 39.4% of the aggregate world workforce European Nations, and India. However, the comprises women.616 Women aged essential contrast lies in its implementation.619 between15-49 are mostly being employed in the farm fields, and only 7% of them are If there arise an occurrence of any violation employed in other fields of employment. of the rights of women concerning Most of them are working due to the adverse employment opportunity, the woman can economic conditions of their family. take the path of litigation, and numerous Furthermore, some of the women are paid, nations do perceive the right. Nonetheless, but only some part of their salary, the ratio of the burden of taking a whole lawful framework regularly proves a significant
615 Women and Men in India (A Statistical Compilation of http://data.worldbank.org/indicator/SL.TLF.TOTL. Gender Related Indicators in India), (Oct. 25, 2020), FE.ZS http://www.mospi.gov.in/sites/default/files/publica 617 Ibid. tion_reports/Women%20and%20Men%20%20in%2 618 Lairold M. Street, ‘International Commercial and Labor 0India%202018.pdf Migration Requirements as a Bar to Discriminatory 616 Female Labor Force, The World Bank, (Aug. 13, Employment Practices’, 31 How. LJ 497, 509, (1988) 2020), 619 Supra note. CORPUS JURIS|210
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in procedure to cross. For example, European SOURCES OF THE RIGHT TO EQUAL Community law does not concentrate on a EMPLOYMENT OPPORTUNITY: private right of action against exclusive INTERNATIONAL SCENARIO private owned organizations. A woman confronting discrimination is required to The United Nations Charter gives that all challenge national laws to uphold her rights. member countries "shall promote the The risk of social stigmatization is another fundamental freedoms without discrimination as to hindrance against the usage of the courts in race, sex, language, or religion."621 The U.N. declaring the right to equal employment further pronounces that "each individual has a opportunity. In Japan, women are not given right to work and that non-discrimination in the utilization of the courts as a resolution for employment is an objective that all countries ought to discrimination. seek to accomplish." The U.N. has, in this way, made a few arrangements propelled by its Whether or not such remedy was accessible, vision of the significance of protection of in any case, the social stigmatization they Human Rights through International law. would look in light of a social antipathy for litigation would prevent women from The International Covenant and the impleading their right to equal employment "Convention on the Elimination of All opportunity.620 Hence, there are laws to Forms of Discrimination against Women" guarantee the rights of women. In any case, are two such settlements. The International the fundamental issue lies in their usage or Labour Organization (ILO), moreover, implementation, which is the present most expressly settled the standard of non- significant limitation. For the prerequisite of discrimination in employment in 1944.622 The the law, the most capable methods are ILO has been instrumental in making treaties litigation. In any case, most of the women are and proposals which describe rights and disinclined to use the court as a remedy. develop sets of standards in labour law. Such
620 Japan Tells Women’s Anti-Discrimination Committee 621 Universal Declaration of Human Rights, ( Oct. 25, Efforts to Meet Treaty Obligations Bearing Fruit, but Progress 2020), https://www.un.org/en/universal-declaration- Slow by International Standards, ( Oct. 25, 2020), human-rights/ https://www.un.org/press/en/2009/wom1742.doc. 622International Labour Standards, ( Oct. 25, 2020), htm https://www.ilo.org/wcmsp5/groups/public/--- ed_norm/--- normes/documents/publication/wcms_087692.pdf CORPUS JURIS|211
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in world community activities fundamentally rights are violated. Article 2 of the Covenant impact the monetary and lawful status of states that "each State Party to the present individuals by and large since they make a Covenant undertakes to respect and to ensure to all norm of equality among different groups of individuals within its territory and subject to its individuals and are seen as legally binding on jurisdiction the rights recognized in the present countries that ratify them.623 Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other The International Covenant on Civil and opinion, national or social origin, property, birth or Political Rights was commonly recognized by other status."625 the U.N. General Assembly to give a full impact on the International law on the Article 4 of the Covenant states that "in time standard of Human rights. It was one of the of public emergency which threatens the life of the early endeavors taken by the International nation and the existence of which is officially community. The Covenant came into effect proclaimed, the States Parties to the present Covenant in 1976, and 104 States become members of may take measures derogating from their obligations the Covenant since.624 In June of 1992, the under the present Covenant to the extent strictly United States affirmed the Covenant, which required by the exigencies of the situation, provided by then got into force in September of 1992, that such measures are not inconsistent with their and India is additionally party to it. other obligations under international law and do not involve discrimination solely on the ground of race, The nations who member of the Convention colour, sex, language, religion or social origin."626 agree to esteem and to guarantee all Henceforth, both the Article 2 and 4 call for individuals inside its region and under its non-discrimination and equal assurance. As jurisdiction the rights apparent in the such, parties to the Covenant are required to Covenant "without distinction of any kind, such as give equivalent protection to all individuals race, colour, sex, language, religion, political or through sanctioning and give an answer for another opinion." It furthermore certifications individuals stood up to with discrimination. to offer an essential answer for those whose
623 Ibid. https://www.ohchr.org/en/professionalinterest/pag 624 Infra Note 638. es/ccpr.aspx 625 International Covenant on Civil and Political Rights, ( Oct. 626 Ibid. 25, 2020), CORPUS JURIS|212
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The Human Rights Committee was set up to Article 2 of the Women's Convention observe consistency with this mandate.627 censures discrimination against women in the entirety of its structures. It gives that states The U.N. explicitly addressed the issue of will follow and receive all the necessary equal opportunity for women in its methods immediately in the policy to "Convention on the Elimination of All Forms of eliminate discrimination done to women by Discrimination against Women." The Women's enacting constitutional, legislative, and Convention is widespread in its span, regulatory measures.630 To improve the complete in scope, and legally binding.628 It position of women and to bring them on an was embraced consistently by the U.N. equal balance to that of man, the rights of General Assembly on December 18, 1979, women ought to be protected by the states, and more than 100 nations have ratified or and states should likewise abstain from consented to it. discriminatory acts or practices notwithstanding giving assents to for India signed the Convention on July 30, 1980 discrimination against women.631 and endorsed it on July 9, 1993. Article 1 of the Women's Convention characterizes Article 11 of the Women's Convention discrimination against women: the term directly addresses employment. Article 11 "discrimination against women" shall mean "any states in part that: "The member parties will take distinction, exclusion or restriction made based on sex all the suitable measures in order to eliminate woman which has the effect or purpose of impairing or discrimination in the area of employment in order to nullifying the recognition, enjoyment or exercise by ensure, based on equality of men and women, the same women, irrespective of their marital status, based on rights, in particular: equality of men and women, of human rights and fundamental freedoms in the political, economic, a) The inalienable right of a human being is the social, cultural, civil or any other field."629 right to work.
627 Ibid. https://www.ohchr.org/en/professionalinterest/pag 628 Rebecca J. Cook, ‘Reservations to the Convention on es/cedaw.aspx#:~:text=1.,those%20related%20to%2 Elimination of All Forms of Discrimination against Women’, 0family%20planning 30 VA. J. INT'L. L. 643, (1990) 630 Ibid. 629 Convention on the Elimination of All Forms of 631 Supra Note 628. Discrimination against Women, ( Oct. 25, 2020), CORPUS JURIS|213
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in b) In the employment matters the same criteria ii. Such measures will be adopted and should be there for selection including the will proceed until the objectives of application that is the right to equal employment equal opportunity and treatment are opportunities; accomplished; and c) The right to open preference of profession and iii. States will embrace positive action employment, the Right to the promotion, job measures at whatever point essential safety, and all reimbursements and conditions of to accomplish one of the rights service and the right to obtain professional enshrined in the Convention and training and retraining, including integrated into their domestic laws.633 apprenticeships, advanced vocational training, Be that as it may, because Article 4 and recurrent training". does not give authorizations to breach, it is not as operative as it, in Article 4 of the Convention and its lawful any case, could be. implications are of fundamental significance. Not exclusively does Article 4 recognize a The issue makes another insufficiency of fundamental right or freedom and protect considerable reservations to the Women’s one specific group. However, it additionally Convention. It has been guaranteed that the gives a sweeping provision reflecting a Women’s Convention got successful, unified interpretation of a general principle somewhat, because, under its Article 28(2), it of law. There are three guarantees implied in obliges reservations that are not “incompatible article 4 that become settled in national law with object and reason” of the Convention. once the Convention is ratified:632 Accordingly, while the Women’s Convention may have expanded its widespread i. Where particular treatment is application, it might have surrendered a conceded to an individual of one race section of its respectability through adaptable or sex (i.e., Affirmative action), that facilities of reservations. Discrimination may, treatment will not be understood as like this, despite everything exist ignitable of an illegal derogation from the general the Convention, when states parties principle of equality; legitimize discriminatory practices by
632 Supra Note 628. 633 Supra Note 628. CORPUS JURIS|214
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in recommending reservations made under iii. The national policy ought to be Article 28(2) of the Convention itself.634 figured along these lines that; it should build the job opportunity for Lastly, equal employment opportunities for women and permit them to women have been entirely recognized by the participate in the economic and social International Labour Organization (ILO). development of the nation. Even The ILO has expressed that all countries though not legally binding, the ILO should embrace numerous ways to deal with Labour Codes are essential for the the subject of working women explicitly, the impact they may have on member ILO, in its 1985 World Labour Report, states. spread out three significant areas for action. Concerning these areas, the ILO expressed The vital portion of the ILO's mandate is to that:635 protect and promote women worker's protection of rights and the promotion of i. Women's work ought to be women worker's rights. ILO's first subject in considered as a fundamental its first Convention is that in the entire first component of the growth procedure. year of the organization's life from 1919, it ii. The nations ought to under its was to guarantee the employment of women national legislation take phenomenal before and after childbirth. The third measures to ratify and implement Convention on this balance was maternity ILO and United Nations guidelines, benefit, which is perhaps the most mostly on those issues which ensures compelling reason why women do not go for the protection of the right of women jobs. If measures are taken concerning this, and those are mainly with equal at that point, it will be an essential step employment opportunities, equal pay towards gender equality.636 The structural for equal work, working conditions, gender bias which was done in the labour professional stability and maternity market was through the unequal payment of benefit; and wages for equal work done by women, and
634 Supra Note 628.
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in this was ensured by Convention No. 100, SOURCES OF THE RIGHT TO EQUAL expressing equal pay for work of equal value. EMPLOYMENT OPPORTUNITY: POSITION IN INDIA Since there is a shift in the enactment which presently emphasized in promoting equality, From the help to the grave, women are under improving the living and working conditions the grasp of various obscenities, for instance, of workers of either sex on an equal basis, segregations, persecutions, and viciousness, and this can be seen by the numerous inside the family, at the workplaces, and in legislation like Maternity Benefit Act, Equal the general public. The legislation has Remuneration Act where gender equality is a authorized an enormous volume of principle to this objective.637 Despite the enactment containing a special provision for thorough arrangement of providing equal the woman in the employment sector by employment opportunities for women, keeping the outcome of improving the implementation of this right stays a genuine situation of woman in India, and these are: problem, and women have little recourse "The Workmen Compensation Act, 1923; Payment when confronted with discriminatory of Wages Act, 1936; Factories Act, 1948; practices. Compelling an employer to offer Maternity Benefit Act, 1961; Employees State equal employment opportunities regularly Insurance Act 1948 and the most significant is under requires the use of the courts. Litigation is the law of the land that must be adhered to that is exceptionally burdensome and usually The Constitution of India". requires explicit discrimination before a woman is willing to take on an organization, UNDER THE INDIAN CONSTITUTION or, significantly more impressive, her whole nation.638 Article 14, the first in a progression of articles in the Constitution of India, which promotes equality. Article 14 ensures equality and equal protection of law to any individual
637 Gender and Employment, International Labour 638 Jill Andrews, ‘National and International Sources of Organization, ( Aug. 13, 2020), Women's Right to Equal Employment Opportunities:
CORPUS JURIS|216
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in in India. It prohibits state discrimination and in Articles 15 and 16), the presumption in does not apply to private people.639 The favour of the constitutionality of the law is Indian Supreme Court has held that under stripped under Articles 15 and 16. The Article 14, reasonable classification is guarantee against sex discrimination in allowable when dependent on some real and Article 15 extends to all legislative, executive, substantial distinction bearing a reasonable and judicial actions of the Government.643 and just relation to the object tried to be Clause 3 of Article 15 provides that the state achieved. In this manner, sex discrimination can enact laws protecting women and is permissible when reasonable.640 Cases children. Underlying the clause is the notion including sex discrimination have not that inherent differences between the sexes emerged under this Article, most likely place women at a disadvantage and that because sex discrimination is independently legislation favouring women is necessary.644 managed under Articles 15 and 16.641 Citing Clause 3, courts have upheld the constitutionality of laws that establish state Article 15 guarantees to citizens that the state colleges exclusively for women, individual shall not discriminate based on sex. While facilities for women voters in polling stations, Article 14 protects all residents, Article 15 serving court summons only on a male protects only the citizen. Under Article 15, member of the family, and reserving public two conditions must be satisfied.642 First, offices or seats for women in municipal proof must be offered that the state has made elections and professional colleges. Litigation an unwarranted differentiation, and second, under Article 15 has been confined to areas the differentiation adversely affects the other than employment in Government; men plaintiff. The primary distinction in this have challenged State or Central government regard between Article 14 and Articles 15 and laws "unduly" favouring women.645 16 is that when differentiation has been made based on sex (or any other prohibited ground
639 Samdasani v. Central Bank of India, AIR 1952 SC 642 KathiRanning v. State of Saurashtra, AIR 1952 SC 59. 123. 640 M.M. Singh, The Constitution of India (Calcutta, 1975), 643 Nain Sukh v. State of U.P, AIR 1958 SC 384. pp. 281-28. 644 Anjali v. State of West Bengal, AIR 1952 Cal. 825. 641 P. Andiappan, ‘Public Policy and Sex Discrimination in 645 P. Andiappan, 1979, “Public Policy and Sex Employment in India’, 14 IJIR 395-415, (1979). Discrimination in Employment in India”, Vol. 14 Indian Journal of Industrial Relations, No. 3, pp. 395-415. CORPUS JURIS|217
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Article 16, one may construe that since that employees cannot be dismissed or specific protection against sex discrimination decreased in rank without being informed in government employment was given under regarding the charges and an inquiry. The Article 16, there have been no cases under courts figure out what establishes a Article 15. Article 16 guarantees to each reasonable hearing. Disciplinary procedures citizen equal opportunity in matters related to under Article 311 might be discredited if the government employment. It gives that a grounds on facts are conflicting with Article citizen shall not be disqualified for or 16. Penal consequences of government discriminated against in government action must be proved to get protection employment because of religion, race, caste, under Article 311. The procedural sex, descent, place of birth, or residence. Of protections gave by Article 311 is accessible the five Articles 14 to 18 in Part III of the to female or male representatives just Constitution, managing the right to equality, whenever dismissed or decreased in rank. just Article 16 discusses equality in Moreover, Article 311 secures civil service opportunity. This equality is restricted in employees and no other government public employment; discrimination by private employees.647 employers is not covered under Article 16. Equality of opportunity applies to the Now various enactments which assist with primary appointment; however, all features achieving gender equality in employment. of employment, for example, promotion, pay, transfer, and retirement.646 The Factories Act, 1948: The Factories Act, 1948, was enacted in order to ensure proper Articles 308-314 of the Indian Constitution health facility, safety, welfare, leave, and approve the Government to proclaim rules working hour for women and young people and regulations related to public as it is a part of welfare legislation. Exclusion employment. Article 311 contains an provisions for women have also been individual due process that shields for civil incorporated in the Act keeping in view their service employees, restricting the arbitrary soft and tender personalities. dismissal or reduction in rank. It specifies
646 Udai Rai Raj, Fundamental Rights and their Enforcement 647 Ibid. (PHI Learning 2011). CORPUS JURIS|218
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Provisions for Welfare of Women: The Workers (Conditions of Employment) Act 1966, different provisions, especially for women The Contract Labour (Regulation and Abolition) under the Factories Act, are: Act 1970 and The Interstate Migrant Workmen (Regulation of Employment and condition of services) i. It prohibits women from working at night Act 1979". hours.648 Prohibiting women from working in a dangerous place and even prohibiting a The Employees' State Insurance Act, woman from working on pressing cotton 1948: The Employees' State Insurance Act is where a cotton opener is at work, 649it also considered as one of the significant social states that the daily hour work and the legislation in India. This legislation is maximum permissible load should be fixed. established by the Government to give a ii. If the number of women working in a factory scope of advantages in various outcomes. If is more than 30 who are ordinarily employed, a woman is safeguarded under this Act, at then in such cases the woman having that point, she can avail of numerous children should be provided with the advantages like sickness benefit, medical appropriate room which can be used by the benefit, disablement benefit, and even the children under the age of six years. Even the expenses incurred in the funeral. Aside from Act states that there should be separate and getting these advantage, the insured women satisfactory screened bathing and washing can likewise claim another advantage facilities for women.650 accessible under this Act, and are like maternity benefits in certain occasions were The Factories Act must make it mandatory possibilities happens out of pregnancy, for any factory owner to maintain a sufficient confinement, miscarriage, early birth of a number of latrine and urinals only for child from his date or miscarriage and women. death.651On account of confinement, the time of maternity benefit available to insured All the above provisions are simultaneously women is 12 weeks, of which not more than provided under "The Plantations labour Act six weeks precede the expected date of 1951, The Mines Act 1952, The Beedi and Cigar
648 Factories Act, 1948, Section 66. 650 Factories Act, 1948, Section 46 649 Factories Act, 1948, Section 27. 651 Factories Act, 1948, Section 46. CORPUS JURIS|219
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in confinement.652 On the off chance that an A maternity benefit is a claim that is payable insured woman works on those days for to a woman for the period of her actual which benefit is paid for remuneration then absence at the rate of standard daily wage, in such case, she cannot avail the maternity which the employer is liable to pay, and the benefit as it is exposed to a condition, if the woman is entitled. The main aim of the insured women die than in such cases the Maternity Benefit Act is to provide benefit to insured amount is paid to the nominee or her the woman for a specific time previous to and legal heirs for the whole period of the child after childbirth and also regulate women's and if the child dies, until the death of the employment in individual establishments child.653 during the maternity period as specified in the Act. Moreover, now, according to the The Maternity Benefit Act, 1961: The new maternity benefit bill 2016, the woman financial reliance of women is the thing that working in the private or public sector will offers rise to their subordination in the public grant a paid leave of 26 weeks. arena today. As a result, to evacuate such subordination and set up the skeleton of If a woman has employed in an establishment uniformed women exceptionally should be for 80 days during the 12 months, whether made financially liberated and should play a employed through a contractor or directly, vibrant part in all divisions of business at she is entitled to claim the benefits under the present. An issue dealt with by women in the said Act. The benefit regarding the cash is financial sphere of life is, for the most part that the employer is liable to pay her at least recognizing with uneven wages, and the main two-thirds of her previous earnings during reason for discrimination is the biological the period of her absence for maternity leave. role of childbearing. To curtail such struggle A woman can claim maternity benefit under and guard the financial rights of women, the the said Act in far and wide, but not in such legislature introduced the Equal a place where the Employees State Insurance Remuneration Act, 1976, and the Maternity Act is pertinent in the establishment, and the Benefit Act, 1961. Act is also not applicable to Factories.654
652 Factories Act, 1948, Section 50. 653 Factories Act, 1948, Section 96 (2) (xii-b). 654 Maternity Benefit Act, 1961, Section 5(2). CORPUS JURIS|220
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Suppose an employer dismisses or discharges requirement to remunerate the higher work a woman from her work during the period of costs employer cause by contracting ladies, as maternity leave. Then, in such a case, the per exceptional laws to ensure maternity. dismissal is considered to be void. It is Employer likes to get a male instead of unlawful on the part of the employer to sack female, without the heaviness of these added a pregnant woman if she is taking leave and cash related costs. It is, however, insufficient is absent from her work in harmony with the the same number of employers do not provision of the Act.655 Even if a notice is procure wedded ladies or reject them before served to the lady on such a day that the pregnancy. The Act gives some insurance for notice will expire during her leave period or ladies monetarily, particularly today during a act as a drawback to her or any condition of time where single mothers are winding up her service. The woman is still eligible to get more pervasive it gives them solidness in the maternity benefit under the Act, even if their lives to have their wages and the security she has been sacked or discharge from her of coming back to stable employment. My service unless and until it was done on some perspectives are that this Act is insufficient to other ground.656 ensure women's correspondence and financial security. Nevertheless, it is If the employer fails to pay the maternity unquestionably a beginning stride, and benefit or discharge or remove a woman however, there are a few scaffolds to cross. from employment on the ground of maternity, then in such cases, the employer The Equal Remuneration Act, 1976: Equal will be punished with imprisonment for not pay for equal work for men and women is a less than three months and a fine of two crucial subject of incredible worry to society hundred rupees, which may extend to even all in all and employees specifically. There five thousand rupees. 657 was a typical conviction that ladies are physically powerless and ought to be paid not The progressing contention in a few spheres as much as their male partners for a similar is that the wage degree of difference amongst bit of work. Ladies everywhere throughout men and women is brought on by the the world had till as of late been, particularly
655 Maternity Benefit Act, 1961, Section 12. 657 Maternity Benefit Act, 1961, Section 25. 656 Maternity Benefit Act, 1961, Section12(2)(a). CORPUS JURIS|221
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in in understandable. They were prepared to enacted by the parliament to give effect to accept lower wages, notwithstanding when this constitutional provision they were utilized in the same occupations of men. Indeed, even in the monetarily and If the employment of a woman is restricted socially propelled nations where incredible by law, other than this condition, under this advancement has been made, segregation still law, no discrimination is allowed on exists. condition of service or in the process of recruitment. The "Central Ministry of Labour During that time, for the protection of and the Central Advisory Committee" regularly workers there was no legislation. There was a monitors the position regarding the start that is the initial stages of legislation to enforcement of a provision of this Act. be made for workers, the owner of the factory primarily employed the female National Rural Employment Guarantee workers by taking advantage of poverty and Act, 2005: As of late, the Indian Government backwardness at very minimal wage was established the "National Rural Employment provided, and they were also made to work Guarantee Act" whereby any individual who in inhuman conditions. ILO has evolved will give unskilled physical work will be paid numerous conventions to give protection to wage work for 100 days. This Act gives the employed women. India has ratified to the upgrade of the job safety of the families in number of ILO convention and some even if provincial territories of the nation by giving ratification is not done but has been adopted no less than one hundred days of ensured as a principle. Article 39 of the Indian wage work in each financial year to each Constitution, which asks the states to secure family unit whose grown-up individuals equal pay for equal work both for women volunteer to do unskilled manual work.658 and men, is the guideline of the ILO, which has been incorporated in our Constitution. The centre element of this poverty The Equal Remuneration Act, 1975 was diminution plan is Gender Equality by stipulating that at least one-third of the
658 Mahatma Gandhi National Rural Employment Guarantee Act,2005, Ministry of Rural Development, Aug. 13, 2020), http://www.nrega.nic.in/netnrega/home.aspx CORPUS JURIS|222
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in labourer must be a woman with equal pay for condition inside the family unit. An optional both men and women for equal work. The model of advancement must concentrate on priority is given for the allocation of work to the upgrade of expectations for everyday women. comforts of the country India, where the lion's share of the populace dwells. Various gender-related objectives such as provision for providing the facility for The Contract Labour (Regulation & childcare at the worksite, the workplace Abolition) Act, 1970: The primary provision should not be more than two miles from of the Act, which manages the benefit of the home; it also paid quite an emphasis on the woman, was to have crèches in each hygiene work condition that is by providing foundation were the woman employed are safe drinking water, nutrition, and health more than twenty in number. The employers care.659 should employ the female contract labour by any agreement within 6 A.M to 7 P.M, just Women occupied with the agrarian except for midwives and nurses in hospitals cultivating need to spend extended periods and dispensaries. under the hot sun, however, are perpetually paid not as much as their male partners. If These are the articles and rules which secure there is no wage discrimination done to women's right to employment and assurance women and direct control of assets and that they are not discriminated in the working resources are given, this can significantly environment. So now, it is essential to look at upgrade her well-being, welfare, and financial the ratio of female labour in India and the status. This business approach, if explanation that is influencing the lower appropriately executed, can acquire earth- female labour rate in India. shattering changes in the lives of women. FACTORS AFFECTING WOMEN'S The employment scheme initiated by the EMPLOYMENT Government, without a doubt, has a positive effect on the position of the woman that is Although significant from a development by bringing gender equality and also power point of view, female work power interest has
659 Ibid. CORPUS JURIS|223
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in not been widely concentrated in India as of by women in care activities, prevalently their not long ago. Understanding women's work regenerative work and household is an unpredictable errand in India and, responsibility fall outside the system of without a doubt, anyplace else in the world, national records in India. as the issues identifying with women's work and employment are subjectively not quite Conversely, the universal definitions the same as those of male workers.660 incorporate the "production of goods for self- Women's employment commitment is utilization inside the creation limit of the System of resolved to a considerable degree by rank, National Accounts" (SNA). It is another religion, marital status, and other socio-social purpose to be the contribution of the standards, which work at various levels in woman. The more extensive the definition society and confine women's mobility and used; the higher will be women's financial access to wage employment in the commitment. As current studies are entirely conventional labour market (different insufficient in estimating women's reasons are their absence of satisfactory employment, time-use reviews can assume an education and aptitudes, and types of essential role in catching women's discrimination in the labour market, "imperceptible work" as it gives data on SNA, including occupational discrimination). Extended-SNA, and Non-SNA activities.662 These limitations frequently push women to Further, male individuals from the family take up non-wage employment or stay out of unit, for the most part, choose what kind of the labour force.661 Likewise, the obligations employment women should take up. It and responsibility of household works and represents a noteworthy limitation of bearing on the child are on the women. women's labour market decisions. Because of the unpaid nature of women's work and the meaning of economic activity, Women's marital status in like manner women's labour force contribution remains impacts their support rates overall. Single measurably under-reported. The role played women are accepted to take a premium more
660 Beneria, L, Women and development: The sexual division 661 Thomas, J.J, ‘India’s labour market during the 2000s: of labour in rural societies 119–147 (Lourdes Beneria (ed.) Surveying the changes’, 47 EPW 39-51, (2012). New York, Praeger 2011). 662 Hirway, I, Jose, S, ‘Understanding Women’s Work Using Time Use Statistics: The Case of India’, 17 Feminist Economics 67–92 (2011). CORPUS JURIS|224
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in than married women noted in their Other significant monetary factors assessment on female labour in urban Delhi additionally will, in general, diminish the pace communicated that it is a family unit decision of female labour cooperation. In India, when to work outside the home. Women's family contrasted with other countrywomen, face an remaining tasks needing to be done, uneven assortment of discrimination in the work information, and well-being concerns are environment, primarily in terms of their indispensable factors influencing their wages.665 Additionally, occupational dedication in the labour market. They saw segregation assumes an essential or that women's work choices are not free; they significant role in keeping women down: it depend on the longing of the family and has been seen that women have made sure association structures, which chooses if the about themselves under specific word related women will work or not.663 area, for example, the agriculture sector, handcrafting, elementary sales, confining Common constituents accept an themselves to such work is not an issue the outstandingly essential part in smothering issue is that these enterprises have not seen a women's work to drive participation with development in employment in recent times, India. These include the restrictions which put a break in female employment. constrained on women's advancements Somewhere in the range of 1994 and 2010 in outside the family as enervated by the life India, the female employment rate developed partner and her in-laws. In any case, it is by 8.7 million. In any case, the estimate striking that the degree of females dealing recommends that the current figure would with social obligations is commonly higher in have been extraordinary if women had urban extents and among the better educated equivalent access to work similarly as their the very segments of the female masses that colleagues get. The estimate expresses that it are most likely going to go up against less would have been threefold the current social goals on work participation.664 number.666
663 Sudarshan R.M.; Bhattacharya S, ‘Through the 666 “ABC of Women Workers’ Rights and Gender Equality,” Magnifying Glass: Women’s Work and Labour Force Second Edition, International Labour Office Geneva, Participation in Urban Delhi’, 44 Epw 59 (2009). 2007, (Oct. 26, 2020), 664 Ibid. https://www.ilo.org/wcmsp5/groups/public/--- 665 Srivastava, N.; Srivastava R, ‘Women, Work and dgreports/--- Employment Outcomes in Rural India’, 45 EPW 49 (2010). gender/documents/publication/wcms_087314.pdf. CORPUS JURIS|225
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The total absence of paid employment it is unmistakably more basic to go past this opportunities is probably going to be the binary variable and analyse the components primary factor constraining women's driving employment results. Most of the cooperation in the labour market in India.667 women working in rural zones are Encouraging economic development is a independently employed or occupied with necessary factor. However, it is not adequate casual labour while working women in urban to address the issue of female labour in India. zones are bound to be in customary pay and India has encountered a time of "jobless salaried occupations. growth." A noteworthy numeral of factors It, thus, is reflected in the lower participation fundamentally influences the probability of rates of women in the labour market. Also, women's labour market results. Human different factors additionally influence their capital benefactions of women, especially participation. In that capacity, to produce higher secondary and university education, occupations that will be accessible to women, play an essential part. the nation will require policies meant to improve female employment results. Given Religion and economic well-being play an this, the rest of the paper emphasizes the essential part in deciding results. The discoveries of an econometric examination probability of Muslim women being in the of the likelihood of discovering employment labour force and different potential results in rural and urban areas. The activity expects are lower in both rural and urban regions. to investigate the effect of the essential Conversely, being a woman from a individual and household variables on the Scheduled Tribe (S.T.) builds the probability likelihood of women being self-employed, of being self-employed by around 12 percent ordinary salaried, casual labour, and jobless. in rural zones and by 3 percent in urban The more significant part of the literature regions. Likewise, being widowed/divorced featured above focuses on the issue of labour from builds the probability of being in one of force participation. This paper contends that the employment statuses (independently
667 “Towards Higher Female Work Participation in India: content/uploads/2019/01/Mehrotra_Sinha_Toward What Can be Done,” Centre for Sustainable s_Higher_Female_LFPR.pdf. Development, (Oct. 26, 2020), https://cse.azimpremjiuniversity.edu.in/wp- CORPUS JURIS|226
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in employed, ordinarily salaried, and casual reason which ought to be considered for the labour) in both metropolitan and nation low pace of women in employment is the areas. In urban regions, being married outlook of the society or the standard norms decreases the probability of being employed of the society which confines the women. in standard salaried work by 10 percent.668 Another more significant explanation is education; there is an incredible After working through the data, it is improvement in the urban region because the particular that still, the position of women vast majority of the women have the employment in India is stagnant. There is an knowledge and are educated. It makes them improvement in the urban region; however, confident to battle for their rights. the rural region is as yet falling behind. One
668 India Wage Report: Wage Policies for Decent Work and bangkok/---sro- Inclusive Growth, ILO Decent Work Team for South new_delhi/documents/publication/wcms_638305.p Asia and Country Office for India, df. ilo.org/wcmsp5/groups/public/---asia/---ro- CORPUS JURIS|227
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
In this manner, to be finished up, there is sufficient legislation nationally and internationally to protect discrimination and to provide equal employment opportunities to women. Conventions like CEDAW and ILO's fundamental mandate is to eliminate a wide range of discrimination against woman and to advance women workers' right protection. The significance of these legislations in the Indian context is that the Judiciary in India has not been reluctant to put dependence on the International Instruments, conventions, and norms for the motivation behind understanding the nature and ambit of the constitutional guarantee of gender equality in the Constitution of India.
The Judiciary has utilized such international standards for deciphering fundamental rights expressly ensured in the Constitution of India, which exemplify the basic concept of gender equality in all domains of human actions. Aside from the International legislation, a decent number of national legislations has additionally been incorporated to get equality in employment. Be that as it may, from the information, it frees that very little from a distinction has occurred, and the factor liable for low woman proportion is likewise being referenced in the section. Equality in truth is not quite the same as that of equality in real.
This gender gap can be decreased by keeping an enforcing agency that will investigate the usage or implementation of the law as the information clarifies that employment in an urban area has expanded, and one reason behind this is education. Women's employment is a path through which they can become independent, confident, and can appreciate equivalent status in society. It is a procedure of the overall development of women in society. Women ought to be educated to comprehend and stand for their rights.
CORPUS JURIS|228
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
SOCIO-LEGAL ANALYSIS OF THE PROBLEM OF RAPE IN INDIA WITH SPECIAL REFERENCE TO ISLAMIC PERSPECTIVE
-MOHAMMAD HAROON* & DR. FAIZANUR RAHMAN*
ABSTRACT
Sexual violence against women is a major problem around the world. The protection of women from sexual violence is a major human rights concern. States have enacted several laws to protect women from sexual violence at home, workplaces etc. Despite the legal measures adopted at the international as well as the national level, other stakeholders like social activists, religious leaders, and Non- Governmental Organizations are also making efforts to protect women from sexual violence. But the situation remains deteriorated. Rape is the fourth most common crime against women in India. The horrifying rape incidents throughout the country are frequent and have created a ghastly rape culture in the country. The State of Uttar Pradesh has witnessed several horrific gang rape and murder cases, one-by-one. The study aims to integrate diverse perspectives, envisages a new lens of inquiry and a line of multidimensional explanation of rape incidents in India.
KEYWORDS: Human Rights, Women, Sexual Violence, Rape, Law, Islamic perspective
* Research Scholar, Faculty of Law, Jamia Millia Islamia, Delhi. * Assistant Professor, Faculty of Law, Jamia Millia Islamia, Delhi. CORPUS JURIS|229
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION incidents of gang-rape and murder of two Dalit girls by upper-caste men in Hathras and Men and women are two sides of the same Balrampur districts of Uttar coin, where man is born of a woman and Pradeshhappened. These are a few from the woman is born of a man's seed. Both have many cases of rape and brutality against equal importance in the development of women in India, which sparked outrage and society. Unfortunately, women are not compelled legislators, policymakers and law treated equally and exploited globally. In enforcement agencies to redefine the laws India, rape incidents are common and protecting women from sexual violence. prevalent these days. From eight-month-old babies to the 100-year-old, women are The National Crime Records Bureau sexually assaulted around the world. About (N.C.R.B.), India has recorded a total 32,033 three-four women are raped every hour in reported rape cases in the year 2019. It means India. The real number probably maybe 88 rape cases were reported every day in higher, which never gets captured, as many 2019.669 There is a rise of over 7 per cent of rape incidents go unreported, buried under rape cases since 2018. Out of the total 32,033 shame and fear. reported rape cases in the year 2019, 11 per cent of the victims were from the Dalit Nirbhaya gang rape and murder case in Delhi; community. The findings come amidst Asifa Bano aged 8 year abduction-rape and widespread outrage over the gang-rape and murder case in Kathua (Jammu & Kashmir), brutalisation of a Dalit woman in Hathras, a young woman aged 23 year from Unnao, Uttar Pradesh. A 19-year-old Dalit woman Uttar Pradesh, succumbed to injuries after was allegedly gang-raped by four upper-caste five men, including the rape accused, chased men. The victim passed away during the her down and burned her alive as she was on treatment at Delhi’s Safdarjung Hospital. Her her way to meet her lawyers in the morning. family alleged the local police hurriedly A veterinarian aged 27 year gang-raped, set criminated her. These incidents depict the on fire and murdered in Telangana, India. true picture of society. The society must have Recently, within a week, two horrifying to relook the problem from the socio-
669 National Crime Records Bureau, Crimes in India- https://ncrb.gov.in/sites/default/files/CII%202019 2019, Staistics, Volume-1 (16/11/2020), %20Volume%201.pdf. CORPUS JURIS|230
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in religious point of view and find out the acquaintances, family members, trusted solution to the problem from the religion. individuals, or strangers.
Sexual violence is defined as, REASONS BEHIND THE PROBLEM
“Any sexual act, attempt to obtain a sexual act, In India, violence against women is unwanted sexual comments or advances, or acts to widespread and has deep roots. The country traffic, or otherwise directed, against a person’s is facing sexual violence problems in its rural sexuality by using coercion, by any person regardless as well as urban areas. New Delhi has earned of their relationship to the victim, in any setting, the title of being the “rape capital” of India, including but not limited to home and work”.670. with an average of five cases of rape reported every day in the city. Here is a look at some The majority of rapes are often perpetrated of the reasons behind the issue that is by persons known to the victim, including painting the country as one where rape family members, colleagues and neighbours. incidents have been rising. If someone forces or manipulates someone else into an unwanted sexual activity without (i) The male-dominated societal consent, his act can fall under the definition approach: The biggest issue, though, of sexual violence. Sexual violence affects is women's overall lower status in the victims throughout their lives. Indian society. Almost in every family, female members are treated There are countless cases where children, unequally even in feeding, clothing teens, adults, and even elders have been and education. India has 924 females forced to face sexual violence. Sexual per 1000 males, which reflects the violence can be devastating for individuals, lower female-to-male population families and communities. Studies reveal that ratios in the country. It is because of most of the people who sexually abuse can be sex-selective abortion and female infanticide. For poor families, the
670 Jansen, H. , Definitions, Violence Against Women, Sexual Violence Research Initiative, https://www.svri.org/research-methods/definitions. CORPUS JURIS|231
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
need to pay a dowry makes daughters (iv) Lack of public safety: Most public a burden and lead to them to be places are not women-friendly in the treated unequally. country. Women generally are not protected at public places like railway (ii) Poor parenting: Good parenting is stations, hospitals, market places, etc. the basis of a healthy society; The Nirbhaya gang rapeoccurred on a unfortunately, it is missing from the bus. Many streets are poorly lit, and Indian society. Improper parenting there is a lack of women’s toilets. The can lead children to cause any wrong situation is worst in villages. in society, even though it may be molestation or rape. Boys and girls (v) A slow court system: The Judicial must be preached to honour each system is painfully slow in the other. Moral duties must be imposed country, in part because of a shortage upon them equally. But only girls are of judges. The country has about 15 preached to live within their limits judges for every 1 million people, and the boys feel free to live in their while China has 159. A Delhi high own style. Consequently, they cross court judge once estimated it would their limits and sometimes harm the take 466 years to get through the modesty of females in society. backlog in the capital alone. The conviction rate is very low, which no (iii) A decline of moral values: Habits more than 26 per cent. like drinking; smoking, going to pubs, provocative clothing can be widely (vi) Encouraging rape victims to seen in metro cities. Sometimes, compromise: In most of the rape village clan councils have blamed the cases, police and the elders of the rise of women talking on cell-phones society pressure the victim, as well as and going to the bazaar, for an her supporters, to drop the case and increase in the incidences of rape. marry the accused. Rape victims are Partly, it is true that all the above often encouraged by elders and clan factors are responsible to increase councils to compromise with the rape crimes in the country. family of the accused and drop the
CORPUS JURIS|232
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
charges. This tendency facilitates the implementation of laws made has rapists to save themselves from the them ineffective. The need of the punishment and encourage the hour is the stricter implementation of culprits to repeat the same act. A the existing laws than stricter zero-tolerance policy must be applied legislations in the country. to protect women from sexual violence or rape crimes. (ix) Lack of Sanctimony: In India, people do not practice what they say. People (vii) Political backing to rapists: say, we should always respect Sometimes, male politicians women, but there are very few who contribute to the problem, making actually do it. It is just that they only statements that make rape a very say it and do not practice the same. normal thing. Addressing a rally in Moradabad, Mr. Mulayam Singh (x) Social acceptance of rapists: The Yadav said, “Boys make mistakes, social acceptance for rapists is one of why hang them?”. Such type of the major factors promoting rape remarks passed by the politicians incidents in India. People who are motivate culprits to repeat such engaged in evils like rape and other offences and create problems in the forms of sexual violence against society. Mulayam Singh is not the women remain with the mainstream first politician to pass such a remark. of society. They are never socially there are several other political boycotted, even sometimes leaders in the country who have made considered as a brave man. sexist remarks over women, severally. LEGAL PROTECTION AGAINST SEXUAL (viii) Poor implementation of Laws: VIOLENCE Indian laws are full of the provisions preventing sexual violence against The State has the primary responsibility to women. A long list of such laws is protect its population from violence, there, but the implementation of particularly women. The State has provided these laws is very poor. The poor some legal measures to prohibit and control
CORPUS JURIS|233
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the acts of sexual violence against women. In intercourse while at the police station, but this regard, there are several legislative, rape had not been proved and that she was executive and judicial efforts to face the habituated to intercourse. problem of sexual violence against women. While the Sessions Court acquitted both the Amongst the core values of the Constitution policemen, the High Court reversed the of India, one is to provide justice, liberty, order of acquittal. When the case reached the equality and dignity not only to men but to Supreme Court, it overturned the High women also. The Constitution provides a Court’s verdict saying that “the intercourse in culture of gender justice and non- question is not proved to amount to rape”. discrimination between man and woman. The Fundamental Rights enshrined in part The top court, in its September 15, 1978 III of the Constitution are dedicated to all verdict, said no marks of injury were found men and women equally, with some special on the girl after the incident, and “their protection to women. Unfortunately, due to absence goes a long way to indicate that the the poor enforcement of Constitutional alleged intercourse was a peaceful affair”671. provisions related to women, as well as the male-dominated societal approach in the The controversial verdict sparked wide-scale country, till date women remain wronged. protests across the country seeking a change in existing rape laws. This culminated into the For over a century after 1860, the criminal Criminal Law (Second Amendment) Act of law relating to rape and sexual assault cases 1983. A new Section 114A in the Indian remained unchanged until the watershed Evidence Act of 1872 was inserted which incident of the Mathura custodial rape case. presumed that there is an absence of consent On March 26, 1972, a young Adivasi girl in certain prosecutions of rape if the victim named Mathura was allegedly raped by says so. This applied to custodial rape cases. policemen in the Desai Gunj Police Station in Maharashtra. In the trial that ensued, the Sessions Court concluded that she had sexual
671 Tuka Ram & Anr. vs. State of Maharashtra, 1979 AIR 185. CORPUS JURIS|234
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
In the I.P.C., Section 228A was added which Seventhly -When she is unable to communicate makes it punishable to disclose the identity of consent, sexual intercourse with or without her the victim of certain offences including rape. consent, when she is less than 18 years is considered rape. However, under the exception, sexual The Indian Penal Code, 1860 made the act of intercourse or sexual acts by a man with his wife, the rape punishable. The term rape is defined wife not being under 15 years of age, is not rape.” under Section 375 of the Code as: Section 376 provided that whoever commits “A man is said to commit “rape” who has sexual rape, shall be punished with rigorous intercourse with a woman under circumstances falling imprisonment for a term which shall not be under any of the seven following descriptions: less than ten years, but which may extend to First - Against her will, imprisonment for life, and shall also be liable Secondly -Without her consent, to fine. Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is Rape laws are stricter now: The nationwide interested in fear of death or of hurt, public outcry, in 2012, following the Fourthly -With her consent, when the man knows December 16 gang-rape and murder in Delhi, that he is not her husband and that her consent is led to the passing of the Criminal Law given because she believes that he is another man to (Amendment) Act in 2013, which widened whom she is or believes herself to be lawfully married, the definition of rape and made the Fifthly - With her consent, when, at the time of giving punishment more stringent. The Parliament such consent, by reason of unsoundness of mind or made the amendments on the intoxication or the administration by him personally recommendation of the Justice J.S. Verma or through another of any stupefying or unwholesome Committee, which was constituted to relook substance, she is unable to understand the nature and the criminal laws in the country and consequences of that to which she gives consent, recommend changes. The Act, which came Sixthly - With or without her consent when she is less into effect on April 2, 2013, increased jail than sixteen years of age. terms in most sexual assault cases and also Explanation- Penetration is sufficient to constitute provided for the death penalty in rape cases the sexual intercourse necessary to the offence of rape, that caused the death of the victim or left her in a vegetative state. It also created new
CORPUS JURIS|235
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in offences, such as the use of criminal force on In January 2018, an eight-year-old girl (Asifa) a woman with intent to disrobe, voyeurism, at Rasana village, near Kathua, in Jammu and and stalking. The punishment for gang-rape Kashmir was abducted, raped, and murdered was increased to 20 years to life by a group of men. The news of the shocking imprisonment from the earlier 10 years to life act led to nationwide protests and calls for imprisonment. Earlier, there was no specific harsher punishments. This led to the passing provision in law for offences such as the use of the Criminal Law (Amendment) Act, 2018 of unwelcome physical contact, words or which for the first time put death penalty as gestures, demand or request for sexual a possible punishment for rape of a girl under favours, showing pornography against the 12 years; the minimum punishment is 20 will of a woman, or making sexual remarks. years in jail. Another new Section was also But this Act clearly defined these offences inserted in the I.P.C. to specifically deal with and allocated punishment. Similarly, stalking rape on a girl below 16 years. The provision was made punishable with up to three years made the offence punishable with a in jail. The offence of acid attack was minimum imprisonment of 20 years, which increased to 10 years of imprisonment. may extend to imprisonment for life. The minimum jail term for rape, which has Laws dealing with sexual offences remained unchanged since the introduction against minors: Child sexual abuse, of the I.P.C. in 1860, was increased from especially against the girl child, is also seven to 10 years. practised in India. Now it has been publicly acknowledged as a severe problem in India. RELIGIOUS PROTECTION AGAINST A welcomed legal development has taken SEXUAL VIOLENCE place in India in the form of the enactment of special law- Protection of Children against Although the rape laws in India are stricter Sexual Offences (POCSO) Act, 2012. The now, the rape cases are increasing sharply. law criminalises a range of acts including During the year 2019, a rise of over 7 per cent child rape, harassment and exploitation for of rape cases was recorded by the National pornography. The law mandates for the Crime Record Bureau. In every 16 minutes, a setting of Special Courts to facilitate speedy rape incident happens in India. It depicts that trial in cases of child sexual abuse. sex crimes against women are too common
CORPUS JURIS|236
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in in India. The law can control the external It also commands men to consort with conduct of a man but not the inner soul. women in kindness, forbidding men from so Only the law can’t control these mishaps in much as thinking ill of their wives.673 The the country. Here the question arises, how Qur’an furthermore prevents violence the country can control and prevent sexual against women by forcing men to control violence against women in the country. themselves and never resort to physically harming women674. The religion can reply to the question which tightens people in a bond with their Lord and The Qur’an further obliges men to provide leads the people towards the way free from for a woman’s every financial need, while evils. Religion has the potential to influence holding that anything a woman earns is hers the behaviour of those who follow it. alone. Religious institutions can play an important role to eliminate cases of sexual abuse and Islam prohibits even to gaze over violence. Women: And when it comes to the Islamic concept of Hijab, it is men who are first Islamic standpoint about the status of commanded to never gaze at women and Women: Islamic standpoint about the status instead guard their private parts and chastity, of women is very clear. Rather, the Qur’an regardless of how women choose to dress. testifies to the fact that men and women were Prophet Muhammad (Peace be upon him) created from a single soul and are of the same himself illustrated this point. In a famous kind and species.672 Thus, the Holy Qur’an incident, a woman described as strikingly first establishes men and women as equal beautiful approached the Prophet to seek his beings. Then forbids men from forcing a guidance on some religious matters. woman to act against her will, thereby ensuring women maintain autonomy and The Prophet’s companion, Al Fadl, began to self-determination. stare at her because of her beauty. Noting this, the Prophet Muhammad did not scold the woman for her attire, but instead, he
672 The Holy Qur’an, 4:2. 674 The Holy Qur’an, 4:35. 673 The Holy Qur’an, 4:20. CORPUS JURIS|237
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
“reached his hand backwards, catching Al provides a practical solution to stop the Fadl’s chin, and turned his face to the other sexual abuse of women. side so that he would not gaze at her”. According to Islam, every man is accountable Accordingly, the Prophet Muhammad to stop the abuse of women by their words (P.B.U.H) by this example demonstrated that and acts. Sexual violence against women will the burden of modesty, respect, and markedly decrease when men stop abusing combating abuse of women rests on men. women and when men stop thinking that just Indeed, men must take the lead in stopping because they have not personally abused such sexual abuse. After all, while the Quran women, they have no further obligations. obliges women to dress modestly as a covenant with God, Islam prescribes no Rape offences are prohibited in Islam: In punishment whatsoever for women who Islam, sexuality is governed by the divinely choose to dress otherwise. inspired laws mentioned in The Holy Qur’an and Hadiths of the Prophet. Accordingly, On the contrary, on numerous occasions, sexual violence against women is regarded as Prophet Muhammad (P.B.U.H) punished an a violation of morality and the laws of God. accused rapist on the testimony of the rape In Islam, rape is considered as a sinful act and survivor alone. In this environment of gender a serious sexual crime. equality, women in Islam rise to the rank of legal scholars, warriors, entrepreneurs, and Islam divided claims of sexual violation into philanthropists while lovingly embracing divine rights and interpersonal rights, the identities as mothers and housewives. former requiring divine torment and the latter belonging to the punishment imposed In the Islamic point of view, things which by the Courts which are lashes or stoning. facilitate any sexual offence against women are prohibited and sinful which lead one The classical scholars argued for applying the towards hell. A man should abstain from any hadd penalty for rape to a convicted rapist, kind of sexual offence against woman and which is stoning to death for the married save himself from the torment of hell. Islam rapist, or flogging of 100 lashes for the unmarried rapist. Allah has commanded,
CORPUS JURIS|238
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
“And you should not feel even the slightest pity in last day. And a (sizable) party of Muslims should executing the command of Allah for either of them be present on (the occasion of) award of (rape convicts) if you have faith in Allah and the punishment.”675
675 Surah-an-Nur, 24:2, The Glorious Qur’an, https://www.irfan-ul-quran.com/english/Surah-an- Nur-with-english-translation/2/. CORPUS JURIS|239
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
The religion, culture as well law practised in India are enriched with the provisions strongly favouring gender justice, women safety and respect. The Constitution of India has guaranteed a culture of gender justice, women safety and empowerment. But due to the poor enforcement of the laws and the male-dominated societal approach in the country, women remain victimised. In a recent survey by Thomson Reuters Foundation, India has been named the most dangerous place in the world for women. Rape incidents against women are not only destructive for women but also the entire society. It is causing serious physical, mental, social and economic loss to women, their children, families and the society at large.
SUGGESTIONS
The law and societal approach have to be changed to stop sexual violence against women. Religious leaders from all faiths and sects must show active participation to fight against rape culture and any other forms of sexual violence against women. The religious institutions and preachers must show interest in the elimination of sexual violence against women. The following measures may be adopted to control the increasing instances of rape.
There is a need for robust conversation around the male section, which has to begin in schools, public fora and offices. etc. The male sect has to be taught that it’s wrong to make lewd remarks and leer at women. This cannot be left to parents alone; it should be a part of the school curriculum from primary school onwards, where attitudes are shaped. Gender sensitisation curriculum must be the qualifying for the older students.
Teachers, preachers, writers, actors and all social activists through their acts must convey a message to people about how destructive sexual offences are. They should generate an atmosphere of hate with sexual crimes against women.
CORPUS JURIS|240
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The religious practices dedicated to women’s respect should be practised in society. It will help society to control and prevent sexual violence against women. The Islamic model of punishment may be employed to stop rape culture in India.
CORPUS JURIS|241
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
STATUS OF POTHOLE DEATHS IN INDIA
-HIMANSHI YADAV*
ABSTRACT
The status of the pothole deaths has been very traumatic and has strangled many lives all together whether it is the family of the victim or any person moving on the road. Potholes have taken a lot of lives whose number cannot be counted easily. The deaths are the result of lack of negligence on the part of the government as well as the concerned authority. People are asking questions about the legitimate expectation they have from the concerned authority. But it is sad to know that instead of making up for what has already been done the representative of the current government are playing blame game and even the judiciary in a number of cases have tried to protect the interest of the victims and their families in this vicious web of irresponsibility and negligence. There is a need for stringent law in order to prevent further laws which have demolished the very pride of the nation which is its people.
KEYWORDS: Deaths, Judiciary, Negligence, Government, Victim.
* Student, BBA LLB, Delhi Metropolitan Education. CORPUS JURIS|242
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION area in the road. Due to the water, the soil beneath gets weakened and leads to cracking A question that is asked by every individual is of the roads. The cracks are so small that they that “If we are in a safe society or not?”. cannot be seen through bare eyes. But Since childhood we have been taught to walk gradually with time these degradation starts safely and be alert by our parents, teachers to widen up and dig deep into the road layers or guardians but accidents still happen even which results in large pits which cannot be after taking all precautions& we often think avoided while driving which eventually whose fault is it or who needs to be blamed. results in accidents. Potholes are the result of Every Government in power promises to a negligence on the part of the government. lower down the number of Accidents by The non-surveillance of the roads end up by making proper regulations but fail to many accidents taking place which eventually understand that there is a need for proper results in deaths. roads in our country. Recently, our nation has seen many lives been taken away due to On 30th July 2016 something happened that potholes on roads which led to a huge outcry. shocked the whole nation. An Accident occurred near Delhi’s square mall, Vasant India has been considered as one of the most Kunj in which a 45 -year- old biker tripped unsafe country in the world for road users and was crushed by a truck owing to the among 199 countries by the World Road potholes. This created a melancholy federation‘s world road statistics report situation for the family who lost their son just 2018.676 because of negligence on the part of the Government. Reason of existence of the innumerable potholes in India As per Ministry of Road Transport and Highways, every year nearly 10,000 road Potholes are the structural failures in a road accidents happen due to potholes especially, caused from the movement of vehicles and in monsoon season due to lack of well- water under the soil structure of the affected maintained roads in a country which has a
676MINISTRY OF ROAD TRANSPORT AND HIGHWAYS, www.morth.nic.in. (last visited Dec. 12, 2020). CORPUS JURIS|243
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in very vast road network. But we don’t do victims of the accident but are also educating anything instead of helping the victims to file the people about the number of accidents complaints against the contractors or and the need to stop such accidents. engineers for lack of responsibility on their Since roads indirectly contributes to the part, we often blame the victims or the economic growth it is very important that the drivers for the “death caused due to roads should be laid down well and strong. negligence” and it is sad to hear that the real There is also an urgent need for various culprits are not booked for what they have measures to be taken by the Government to done. As of which no detailed investigation is avoid the deteriorating conditions of the done in the cases of the road deaths in our roads and in order to safeguard the lives of nation. people. This research paper tries to examine the status of pothole deaths in India with the In 2019, Neha Shaikh a 21-year-old woman help of statistics as well with the legal died after being run over by a truck passing perspective available on this part. This by when she slipped off her vehicle due to a research paper looks into every issue which pothole in Maharashtra’s Thane district needs to be addressed. Many such type of these incidents take place not only in India, but also in many parts of STATISTICS OF ACCIDENTS DUE TO India.677 POTHOLES
Many foundations have been established to The Ministry of Road Transport through its work for the people affected by potholes and annual “ROADS ACCIDENTS IN INDIA” one such foundation is Prakash Foundation report provides data on accidents caused due established by Mr. Bilhore in memory of his to potholes in India. Out of a total number son who lost his life in an accident occurred of road accidents in India from 2013-2018, due to potholes and the other-one is 52397 occurred due to potholes from 2013- Potholes-Warriors by Mr. Mushtaq Ansari. 2018 which resulted in 16,938 deaths in India. Both the foundations not only help the
677 Press Trust of India, Pothole claimed life of a 21- year- http://www.ndtv.com/2019/10/10/2114525 (last old woman doctor in Maharashtra, NDTV, visited Dec. 13, 2020).
CORPUS JURIS|244
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The following are the statistics showing the number of accidents, deaths and people injured state wise and year wise:
The top 5 states with the highest number of accidents, deaths and people injured due to potholes in 2018678 are as follows:
No. STATE No. of deaths No. of people injured of Accidents
Uttar Pradesh 2015 1043 926 Maharashtra 552 166 353 Tamil Nadu 526 102 95 Haryana 473 222 114
Assam 182 68 121
The top 5 states with the highest number of accidents, deaths and people injured due to potholes in 2017679 are as follows:
State No. of Accidents No. of Deaths No. of people injured
Maharashtra 2370 726 1480
Uttar Pradesh 1986 987 967
Madhya Pradesh 1012 141 83
Tamil Nadu 627 173 28 Kerala 522 52 461
The top 5 states with the highest number of accidents, deaths and people injured due to potholes in 2016680 are as follows:
678 The Ministry of Road Transport and Highways, Road AccIdents in India (2018). 679 The Ministry of Road Transport and Highways, Road AccIdents in India (2017). 680 The Ministry of Road Transport and Highways, Road AccIdents in India (2016). CORPUS JURIS|245
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
State No. of Accidents No. of Deaths No. of people injured
Uttar Pradesh 1436 714 1086
Maharashtra 1064 329 790
Tamil Nadu 621 130 717
Madhya Pradesh 609 81 749 Kerala 536 54 597
The above data clearly shows that the and can seek remedy under Article 226 of the number of accidents, deaths and injuries Constitution of India.681 caused due to potholes have reportedly reduced in 2018. • CODE OF CRIMINAL PROCEDURE, 1973 (CRPC) LEGAL PERSPECTIVE ON POTHOLES Section 44: Arrest by Magistrate DEATH 1) When any offence is committed in the presence of a • CONSTITUTION OF INDIA Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any Article 21: The Article provides that the state person to arrest the offender, and may thereupon, shall not deny any person his life and subject to the provisions herein contained as to bail, personal liberty except according to commit the offender to custody. procedure established by law. Article 21 has 2) Any Magistrate, whether Executive or Judicial, may a wider scope which also covers a citizen at any time arrest or direct the arrest, in his presence, right to have safe and good roads. It within his local jurisdiction, of any person for whose undoubtedly covers a case where a State or arrest he is competent at the time and in the its instrumentality failed to discharge their circumstances to issue a warrant duties resulting in deprivation of a person limb or life. Not providing a citizen with safe An accident took place which resulted in the roads are violating of his fundamental right death of a two- wheeler rider at Palarivattom in Kochi and the police officials decided to
681 Darshan vs Union of India, (2000) ACJ 578. CORPUS JURIS|246
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
file case against 4 Public Work Department “Whoever causes the death of any person by doing any officials who failed to repair the road. rash or negligent act not amounting to culpable Evoking Section 44 of the CRPC, the police homicide shall be punished with imprisonment of official filed cases against the officers either description for a term which may extend to two responsible under Section 304 A (Causing years, or with fine, or both.” death by negligence), Section 268 and 283 of the IPC, 1860.682 Section 268: Public Nuisance “A person is guilty of a public nuisance who does any Section 149: Police to Prevent Cognizable act or is guilty of an illegal omission which causes any Offences common injury, danger or annoyance to the public or “Every police officer may interpose for the purpose of to the people in general who dwell or occupy property preventing, and shall, to the best of his ability, in the vicinity, or which must necessarily cause injury, prevent, the commission of any cognizable offence.” obstruction, danger or annoyance to persons who may have occasion to use any public right. A common A law and order situation arose and public nuisance is not excused on the ground that it causes peace was disrupted as death (in Bhiwandi) some convenience or advantage” happened due to pothole. A notice was issued against the MSRDC by the Thane Section 283: Danger or Obstruction in police. "If the accident recurs despite this Public Way or Line of Obstruction intimation, it will be construed as a breach of “Danger or obstruction in public way or line of this notice issued under CrPC section navigation.—Whoever, by doing any act, or by 149 and under section 188 of the IPC said by omitting to take order with any property in his police officials in Maharashtra683 possession or under his charge, causes danger, obstruction or injury to any person in any public way • INDIAN PENAL CODE or public line of navigation, shall be punished with fine which may extend to two hundred rupees.” Section 304A: Causing Death by Negligence
682Ajay Kanth, Police case against officers who fail to repair 683 (May 11, 2020), potholes, THE NEW INDIAN EXPRESS, https://www.thequint.com/news/India/maharshtra- http://www.indianexpress.comdecember2019, (last pothole-deaths visited Dec. 13, 2020). CORPUS JURIS|247
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Section 322: Voluntarily Causing with imprisonment of either description for a term Grievous Hurt which may extend to five years, or with fine, or with Whoever voluntarily causes hurt, if the hurt which he both.”684 intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is • MOTOR VEHICLES (AMENDMENT) grievous hurt, is said “voluntarily to cause grievous ACT 2019 hurt.” Explanation— A person is not said voluntarily to The Standing Committee on Road Safety and cause a grievous hurt except when he both causes Transport has observed that the majority of grievous hurt and intends or knows himself to be accidents happen due to the fault on drivers likely to cause grievous hurt. But he voluntarily cause part as well as many other reasons are grievous hurt, if intending or knowing himself to be involved. One such reason is faulty road likely to cause a grievous hurt of one kind, he actually engineering. Based on the report submitted causes a grievous hurt of another kind. by the Committee, the Ministry of Road Transport and Highways proposed Motor Section 425: Mischief Vehicle (Amendment) Act 2019 in Lok “Whoever with intent to cause, or knowing that he is Sabha, which was passed by both the houses likely to cause, wrongful loss or damage to the public of Parliament- Lok Sabha and Rajya Sabha or to any person, causes the destruction of any laying down act which contains many property, or any such change in any property or in the provisions on road safety. situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits mischief”. The Act further provides the establishment of National Road safety board which will Section 431: Mischief by Injury to Public advise the centre and the state on the Roads, Bridge, River or Channel standards of Road Safety and Traffic “Whoever commits mischief by doing any act which Management to be maintained. The bill also renders or which he knows to be likely to render any provides Good Samaritan guidelines to help public road, bridge, navigable river or navigable the road accident victims. channel, natural or artificial, impassable or less safe for travelling or conveying property, shall be punished
684 Indian Penal Code,1860. CORPUS JURIS|248
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Section 198 A of the aforesaid Act provides Justice Radhakrishnan Committee. The to hold contractors, consultants or Committee recommended Rs 5 lakh concessionaries accountable for faulty road compensation to the victims686 designs, construction and maintenance and failure to do so will lead them to being fined “On October 4th, 33-year-old Vyas (name upto Rs l lakh.685 changed), an IT professional, fell and broke his right knee when his scooter bumped into The objective was not only to improve the a pothole. The surgery afterwards, recurring quality of roads but also to make the hospital bills, physiotherapy, expenses for contractors accountable as earlier they used medicines, scooter repairs etc have drained to get away with faulty roads. him of over Rs 4,34,323 so far. And he is still bed-ridden, the High Court ordered BBMP REMEDIES AVAILABLE TO VICTIMS to compensate victims of pothole accidents. But BBMP is yet to set up a mechanism for In 2018, the bench of Justices Madan B this. In case, the victim was injured due to a Lokur, Deepak Gupta and Hemant Gupta pothole, footpath, or tree fall, ‘discretionary after hearing about the number of deaths due funds’ would be used to the extent of to potholes said that “It is not at all acceptable meeting the victim’s hospital costs. Other that such a large number of deaths takes place due to than that, there is no mechanism to claim potholes on roads and there is no provision to grant compensation from BBMP for their financial compensation to the legal representatives of the or mental suffering,” the senior BBMP victims. The Supreme Court said that the official says. victims are entitled to be compensated who lost their lives due to potholes. On November 12th, HC even threatened to take action against BBMP for contempt, if it The Supreme Court sought the problem failed to give compensation or publicise the related to the compensation scheme for the scheme. Subsequently, on 27th November, victims of pothole deaths in assistance of the BBMP issued a newspaper advertisement
685 The Motor Vehicles (Amendment) Act No. 32 of https://www.dnaindia.com/india/report-rs-5-lakh- 2019(India). compensation-for-pothole-deaths-2692983 (last 686 Abraham Thomas, Rs 5 lakh compensation for pothole visited May 11, 2020). deaths, DNA INDIA, CORPUS JURIS|249
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in that said compensation would be awarded to provides medical or non- medical assistance pothole victims. The senior BBMP official to a road victim and provides rules to prevent (quoted earlier), says that the process of harassment of such a person. formulating these guidelines has begun, but it may take at least three more months for an JUDICIAL VIEWPOINT ON POTHOLES appropriate compensation mechanism to be DEATHS in place.”687 The judiciary has opined on certain aspects Even after many cases came up which caused of pothole deaths in India. This has gained injustice to victims and led a serious need for impetus mainly due to the increasing compensation scheme in the country. The concerns that have been put forth by citizens. Ministry of Road Transport and Highways A few judgements that highlight this stance proposed The Motor Vehicles’ are given below. (Amendment) Act, 2019 provided that the Central Government will prepare a scheme DR. S. RAJASEEKARAN VS UNION for cashless treatment of road accident OF INDIA AND ORS688 victims during Golden Hour. In this case, the petitioner Dr. S.Rajaseekaran The Act defines the golden hour as a time filed an instant petition under Article 32 of period of upto one hour following a the Constitution of India. The Hon’ble traumatic injury, during which the likelihood Supreme Court converted the writ petition of preventing the death of the victim through filed by him to a public interest litigation. The prompt medical care is the highest. A petition was filed to seek the court’s compensation of Rs 5 lakhs in death case and intervention for the implementation of road Rs 2.5 Lakhs in case of a grievous injury safety laws, providing proper treatment to caused due to accidents. The bill further the road accident victims and to reduce the defines good Samaritan as a person who death rate occurring due to road accidents
687 Harsha Raj Gatty, Bengaluru’s pothole victims’ to-claim-compensation-39259 (last visited May 11, pain continues, no formal way yet to claim 2020). compensation, CITIZEN MATTERS, 688 Dr. S. Rajaseekaran v. Union of India and Ors., https://bengaluru.citizenmatters.in/bengalurus- 2017 (11) SC 465. pothole-victims-pain-continues-no-formal-way-yet- CORPUS JURIS|250
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in whether it is due to potholes, drink and drive, design of roads to make them safe. The other high speeding or by any other method of directions issued by the Court are as follows: accident. Initially, the Ministry of Road Transport and Highways opposed the writ 1. A need for Road Safety Policy: Most of the petition, but as the litigation progressed, the State Governments and Union Territories matter was looked at in a non-adversarial have already framed a Road Safety Policy. manner and considered as one in public Those who have not framed such a policy, interest. namely Assam, Nagaland, Tripura, Delhi, Lakshadweep, Dadra and Nagar Haveli and The Supreme Court formed a Road Safety Andaman and W.P. (C) No.295 of 2012 Page Committee headed by Justice K.S. 23 of 33 Nicobar Islands, must now Radhakrishnan. The committee noted that in formulate the Road Safety Policy by 31st 2014 the number of persons who had died in January, 2018. Implementation of the Road road accidents was 139,671 and that this Safety Policy with all due earnestness and figure had jumped up in 2015 to 146,133. seriousness is required.
HELD 2. Framing of the State Road Safety Council: All “After hearing all the contentions, the States have already constituted a Road Safety Hon’ble Supreme Court issued the guidelines Council in terms of Section 215 of the Motor to the MoRTH one such direction was that it Vehicles Act, 1988. The Union Territories of appeared that one of the main reasons for Daman and Diu, Dadra and Nagar Haveli road accidents is the poor quality of roads, and Andaman and Nicobar Islands have not improper design, etc. constituted the Road Safety Council as yet. We direct these Union Territories to The MoRTH was of the opinion that the constitute the State Road Safety Council on protocol for road design and identification of or before 31st January, 2018. black spots needs to be reviewed and enforced. Accordingly, it is directed that the 3. Need for Lead Agency: Only a few States MoRTH should publish a protocol for have established the Lead Agency as identification and rectification of black spots recommended by the Committee on Road and take necessary steps for improving the Safety in its communication of 23rd
CORPUS JURIS|251
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
December, 2014. It may be mentioned that by 31st March, 2018 and put it into action the Lead Agency will act as the Secretariat of after giving its due publicity. the State Road Safety Council and coordinate all activities such as licensing issues W.P. (C) 6. Traffic Calming Measures: It is suggested by No.295 of 2012 Page 24 of 33 including the learned Amicus that traffic calming issues of driving licences, registration of measures must be adopted in accident prone vehicles, road safety and features of vehicles, areas and is also agreed by the MoRTH. along with other allied matters, including emission norms and other activities as 7. Road Safety Audits: There is agreement, in mentioned in communication. principle, between the learned Amicus and the MoRTH to carry out Road Safety Audits. 4. Necessity for Road Safety Fund: Some of the However, there appears to be a dearth of States have already established a Road Safety qualified auditors in Road Safety Fund. Those States and Union Territories Engineering. The MoRTH supports the idea that have not yet established the Road Safety of capacity building. It is, therefore, directed Fund should do so not later than 31st March, that necessary steps be taken by the 2018 and report back to the Committee on Committee on Road Safety as well as by the Road Safety. The corpus of the Road Safety MoRTH to work in this direction. Fund will be from the fines collected for traffic violations and the Fund will be utilized 8. Engineering Design of New Roads: The for meeting expenses relating to road safety. MoRTH and the learned Amicus are in agreement, that the Road Safety Audit as 5. Urge for Road Safety Action Plan: The mentioned above should include the design purpose of a Road Safety Action Plan is to stage audit of new road projects of 5 kms or reduce the number of road accidents, as well more, rather than being based on the cost of as the fatality rate. The MoRTH has already the project. It is ordered accordingly. requested all the States and Union Territories to prepare a Road Safety Action Plan but the 9. Working Group on Engineering: The response to this has been somewhat Working Group on Engineering (Roads) has lukewarm. They are therefore directed to already submitted a Report which is available urgently prepare a Road Safety Action Plan with the Road Safety Committee as well as
CORPUS JURIS|252
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
the MoRTH. This Working Group was the Report should be implemented, including constituted pursuant to the decision taken in acquisition of cameras and surveillance the meeting of the 12th National Road Safety equipments for detecting traffic and Council held on 25th March, 2011. The identifying violators. It is also necessary to set recommendations of the Working Group up special patrol forces along the National W.P. (C) No.295 of 2012 Page 27 of 33 Highways and State Highways for which should be implemented in terms prayed for necessary steps must be taken by the State by the learned Amicus as well as those Governments and Union Territories. W.P. accepted by the MoRTH. These will, of (C) No.295 of 2012 Page 28 of 33 15. course, be in the nature of interim directions since the National Road Safety Board is likely 13. Alcohol and Road Safety: The MoRTH has to be created as proposed in the Motor already written to the States to comply with Vehicles (Amendment) Bill, 2017. orders of this Court in this regard and quarterly advisories may be issued as to serve 10. Driver’s Training: This is the subject matter as a reminder to Implement the directions of of the Motor Vehicles (Amendment) Bill, this court. 2017 and no orders are required to be passed in this regard. 14. Road Safety Education: The learned Amicus and MoRTH are in agreement that road 11. Lane Driving: The MoRTH has already safety education and counselling should be issued Motor Vehicles (Driving) Regulations, incorporated in the curriculum by the State 2017 vide G.S.R. 634 (E) dated 23rd June, Boards by 1st April, 2018. 2017. The Notification should be implemented by the State Governments and 15. Speed Governors: Guidelines in this regard Union Territories strictly. have already been issued by the MoRTH. And has agreed to upload the Unique 12. Road Safety Equipment: The Bureau of Identification Number of the speed Police Research and Training has already governors in the VAHAN database. This prepared a Report on the subject and has should be followed up by the MoRTH with submitted it to the Road Safety Committee in an expedition. September, 2015. The recommendations in
CORPUS JURIS|253
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
16. Emergency Medical Care: An agreement that 19. Data Collection: The MoRTH has already at least one Trauma Care Centre should be taken steps for recording accident data and set up in every district with necessary facilities reports through computerised data entry. and an ambulance. The State Governments The State and Union Territories have been and the Union Territories should take up this asked to take further action in this regard and recommendation at the earliest since it is on make the data public for the information of record that treatment soon after a road W.P. all stakeholders. This needs to be followed up (C) No.295 of 2012 Page 29 of 33 accident is and no further orders are necessary in this crucial for saving the life of the victim. In this regard. context, it may also be mentioned that this Court has issued certain directions in Pt. 20. Bus/Truck–Body Building Code: This has Parmanand Katara v. Union of India 1 which already been notified by the MoRTH with should be followed. regard to buses vide G.S.R. No.287 (E) dated 27th April, 2014 and with regard to trucks 17. Universal Accident Helpline Number: The vide G.S.R. No.1034(E) dated 2nd MoRTH has stated that there is already a call November, 2016. No further orders are centre number, that is, 108 provided by the necessary in this regard. National Health Mission on the run. Due publicity must be given to this so that an 21. ABS, Air Bags and Headlights: The MoRTH ambulance can be activated at the earliest has already notified for a fitment of ABS in whenever necessary. motor cycles vide G.S.R. No.310(E) dated 16th March, 2016 and for four wheelers vide 18. Permanent Road Safety Cell: All State G.S.R. No.120(E) dated 10th February, 2017. Governments and Union Territories have As far as air bags are concerned a standard already been requested by the MoRTH to set AIS-145 has already been notified. As regards up Road Safety Cells. The State automated headlights, the MoRTH has Governments and Union Territories should notified vide G.S.R. No.188(E) dated 22nd establish Permanent Road Safety Cells by February, 2016 for fitment of “Automated 31st January, 2018. Headlights On” in two wheelers manufactured on or after 1st April, 2017.
CORPUS JURIS|254
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
22. Crash Test: This too has been notified by the 2) The poor condition of roads adversely MoRTH and the test of all light motor affects the free movement of the traffic vehicles is required to be conducted by the thereby causing delays. testing agency notified under Rule 126 of the Central Motor Vehicles Rules, 1989. ARGUMENTS OF THE PETITIONER
The Hon’ble Supreme Court stated that they The petitioner while addressing to the issue are confident that the directions given above of poor condition of roads in the Cities stated and with the support, cooperation and that the Mumbai City as well as the cities assistance of the MoRTH, will save having Municipal Corporations in Thane thousands of lives in road accidents and Districts, there is an additional problem. In crores of rupees in compensation will be these cities, heavy monsoon always set out as payable by insurance companies – provided an excuse for poor condition of roads and the directions are faithfully and sincerely potholes on the roads. A judicial notice needs complied with.” to be taken of the fact that the general condition of roads in all major cities in the • HIGH COURT ON ITS OWN State is far from being satisfactory. In those MOTION v. STATE OF cities where there is a heavy rainfall, the MAHARASHTRA689 condition of roads worsens in the monsoon. The reason may be the failure to use proper There are many issues that have cropped up techniques in making or repairing the roads. in Maharashtra when it comes to potholes The problem is compounded by ever and accessibility to roads in particular. This increasing vehicles on the roads. case particularly highlights the following issues: Moreover, addressing to the poor condition of roads adversely affects the free movement 1) The poor conditions of the roads in the of the traffic thereby causing delays, Mumbai cities are a matter of concern petitioner stated that the bigger cities, apart
689 High Court on its own Motion v. State of Maharashtra, (Suo Moto Public Interest Litigation No. 71 of 2013). CORPUS JURIS|255
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in from those who can afford to have their own 31st August, 2006 this Court has already held 4 wheelers, common people travel by public that the right to have roads in reasonable sector or other transport buses and also use condition is a part of the fundamental right relatively cheaper means of public guaranteed under Article 21 of the conveyance like auto-rickshaws. Travelling Constitution of India. Thus, the Division by public transport vehicles like buses and Bench over by His Lordship Justice R.M. auto rickshaws on poorly maintained roads is Lodhahad placed the right of citizens to have a nightmare for all citizens especially for pothole free roads in reasonable condition on senior citizens, women, pregnant women, the highest pedestal of fundamental rights children, etc. We must note here that neither under Article 21 of the Constitution of India. the Mumbai Municipal Corporation nor any Existence of such fundamental right creates other Corporations which are before the corresponding obligation in all the authorities Court have attempted to come out with a which are "State" within the meaning of case that the conditions of the roads are very Article 12 of the Constitution of India. For good. There are various causes of poor the infringement of the fundamental right condition of roads. One cause may be poor guaranteed under Article 21 of the technique or inferior quality of material used Constitution of India, a citizen can demand for construction of roads and proper compensation apart from seeking the scientific methods are not used. Therefore, enforcement of the right. Moreover, a citizen the repairs carried out for the roads survive has a right to make grievances regarding the only for a short time. Apart from these vital violation of such right and get the grievances causes, elements such as heavy rains or heat redressed.” also contribute to poor condition of roads and the restoration rarely takes place and is • MARAKKAR VS STATE OF KERALA690 not satisfactory. In this case, Rafeeq, who was a school drop- HELD out was studying in a parallel college. He was aged 17 years at the time of the accident. It is The Court relied on what was said by this claimed that he used to help his father in very court in its judgment and order dated
690 Marakkar v. State of Kerala, A.S.No. 918 of 1997. CORPUS JURIS|256
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in running a teashop and by his death his proper condition and keeping it safe. Their parents suffered a loss of Rs.30/- per day as failure to do so has resulted in the accident.” his services were no more available. They also said that they had to borrow Rs.25,000/- for ARGUMENTS OF THE DEFENDANT the treatment of Rafeeq. They also claimed The defendants stated that there was a pot amounts towards transportation to the hole as alleged in the plaint. According to hospital, funeral expenses etc. Even though them “the road takes a sharp turn at the place compensation due, is much more than Rs.2 of an accident and the lower portion near the lakhs, the plaintiffs limited their claim to Rs.2 super elevation, which is at lower level. It was Lakhs with future interest at 12%. so aligned for the purpose of smooth negotiation of the vehicle. That is described ARGUMENTS OF THE PLAINTIFF as a pot hole. The accident occurred due to The plaintiff stated that “on his way back the carelessness on the part of Rafeeq Rafeeq fell into a pot hole on the road. He himself. The road had been properly suffered a head injury and was taken to maintained. The allegation that the people Anwar Memorial Hospital, from where he had complained about the pot holes on the was referred to Medical Trust Hospital, road is incorrect. There was no such Ernakulam. He left for the heavenly abode complaint, nor were there any pot holes on on 20.7.1991 at 6.45 p.m. According to the the road. The second defendant had taken plaintiffs, the cause of injury was the fall in timely steps to maintain the road properly. the pot hole on Kodungallur- Kongorppilly There was collection of some rain water on road maintained by the P.W.D. It was the road. It was unnecessary to provide any pointed out that on several occasions sign of caution as there was no danger posed. complaints had been preferred to the P.W.D. by the people regarding the pot holes on the They denied the quantum of compensation road, but that did not yield any result. A claimed by the plaintiffs. Hence defendants question was raised by the plaintiff had the stated that they were not responsible for the road been properly maintained this mishap accident and hence were not liable to could have been avoided. Plaintiff also pay compensation, they prayed for dismissal pointed out that P.W.D. and the State were of the suit”. under an obligation to maintain the road in
CORPUS JURIS|257
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
ISSUES RAISED BEFORE THE COURT hereinbefore in this judgment." Going by the 1) Whether the death of Rafeeq was a result of principles laid down, the multiplier method is the injury suffered by the fall in the pot hole the safe method. What is paid actually is the on the road as alleged by the plaintiffs? present value of future needs. Basic rule is 2) Whether defendants were responsible for that the plaintiff cannot receive more by way the unfortunate incident? of damages than the amount of his loss. It is 3) Whether any compensation was there which a compensation only. Though assessment of was due to the plaintiffs? compensation involves hypothetical considerations and speculative elements, it HELD should nevertheless be the objective. It has The Kerala High court relied upon the Lata always been emphasised that the amount Wadhwa Case where this Court came to a awarded must be just compensation. The conclusion that ‘upon acceptability of the compensation must be just and fair. In such multiplier method and depending upon the a state of affairs the court has to invoke its fact situation, namely, the involvement of jurisdiction and come to the rescue of the TISCO in its tradition that each employee public. Let the authorities note that they can get one of his children employed in the cannot be getting away with their culpable Company and having regard to the multiplier acts or omissions with impunity. They may 15 the compensation was calculated at have to pay for their apathy. They are alerted Rs.3.60 lakhs with an additional sum of that unless they bestow sufficient care in Rs.50,000/- as a conventional figure making discharging their social obligations, they may the total amount payable at Rs.4.10 lakhs for be in peril. each of the claimants of the deceased children.’ In the result, the judgment and decree of the court below are set aside and a decree is Therefore, the court stated that “The passed in the following terms: Plaintiffs shall decision in Lata Wadhwa thus, is definitely a be entitled to realise Rs.1,71,500/- with 6% guiding factor in the matter of award of interest from the date of suit till realisation compensation wherein children died due to from the defendants jointly and severally. an unfortunate incident as noticed more fully There will be no order as to costs.”
CORPUS JURIS|258
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
The road accidents that happen on roads is a multisectoral problem. Road accidents not only hamper the lives of the victim but also the lives of their loved ones. Road Accidents happen due to the fault of the drivers like over-speeding, drink and drive and in many numberless ways. One such way where we just cannot blame the driver for the potholes that are present on the roads. Potholes on the road are the result of lack of responsibility on the part of the Government, contractors and engineers which is a major loophole that has taken the lives of millions of people. But it’s difficult to blame anyone as none of them will own up to it and will always blame one another and it is sad to know that every year deaths due to potholes seems to increase, especially during the monsoon season and victims are just provided with the Compensation. We fail to look that whether that compensation is enough or not? Just providing the compensation will not give any justice to that person or the relatives of that person whose life have been ruined. Instead of just compensating the victims, there is need for law that provides punishment to the offenders who are responsible for these deaths. The blame -game should stop. Maharashtra PWD minister Chandrakant Patil once said before the media that “Potholes-ridden roads cannot be entirely blamed for accidents. When we talk about a death in such an accident, we forget that five lakh other people travel on the same road.”691 The government though have taken many initiatives and one such initiative in the amendment in the Motor Vehicles Act which is now read as Motor Vehicles (Amendment) Act,2019. The Amendment was made to resolve the issue of the increasing number of road accidents by imposing heavy fines. But even after such a reform the number of deaths has not been reduced. In 2019, the number of potholes deaths was more than 1700. The victims are not getting justice. There is a need for serious legislation made by the government
691 Press Trust of India, Potholes Alone can’t be Blamed for Deaths” says Maharashtra Minister, NDTV, “https://www.ndtv.com/mumbai-news/potholes-alone-cant-be-blamed-for-deaths-maharashtra-minister- chandrakant-patil-1883717 (last visited May 13, 2020). CORPUS JURIS|259
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
not only for the people but also for the authorities responsible. The people of India as well as public officials should not act negligently but should seriously help government by following the rules and regulations rather than criticizing them as the government is the representatives of the people. So, its high time now that we should change the current status of potholes death in India by joining our hands together as strength lies in unity.
CORPUS JURIS|260
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
SURROGACY: INSIGHT INTO THE LEGAL FRAMEWORK OF INDIA
-JYOTI THAKUR* & TANISHQ SONI* ABSTRACT
Childlessness is a very serious concern that requires political attention especially in a country like India where the social and political acceptability of the individuals is often judged on the basis of their ability to procreate. With the advent of the Assisted Reproduction Techniques, surrogacy has come as a promising treatment for the problem of childlessness worldwide. However, the acceptability of the vexatious issues inhibited in surrogacy practice proportionately differs due to demographic variations. Surrogacy enables the intending parent to exercise his fundamental right of reproductive choice to procreate and parallel exercise of the right to bodily autonomy of the respective surrogates.
However, there have been suspicions over the free exercise of bodily autonomy of the surrogates and a reasonable doubt of economic coercion inflicted upon to act as surrogates. Therefore, arguments and policy debates differ in terms of acceptability to this practice. The notions of procreative liberty, privacy, and autonomy renders arguments in favour of surrogacy, while the economic coercion for compensation, commodification of reproductive capacities increase opposition against surrogacy.
Therefore, the Surrogacy Regulation Bill 2019 is enacted with comprehensive provisions to contain the malpractices resulting from this practice and protect the interests of the parties involved. However, the legal glitches under the act are being criticized for it being constitutionally invalid. Therefore, the author in the paper has aimed to critically appraise the SRB 2019 in the light of the contemporary notions of fundamental rights and progressive freedoms guaranteed to the citizens of the country.
The author has elucidated the state of contemporary surrogacy practice by giving a detailed overview of its inception, the state of legal instruments governing its practice, the legislative lacunas towards its regulation and has finally concluded the paper by suggesting the necessary changes after providing a
* Student, 3rd Year, B Com. LLB, Renaissance Law College, Indore. * Student, 3rd Year, BBA LLB, Renaissance Law College, Indore. CORPUS JURIS|261
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
thorough comparison of the legal provisions existing in the other countries to regulate the same practice.
KEYWORDS: Surrogacy, Reproductive Choice, Bodily Autonomy, Surrogacy Regulation Bill 2019.
CORPUS JURIS|262
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION the ethically and morally accepted contemporary practice of surrogacy i.e. The word 'surrogacy' is derived from the gestational method. Latin word 'surrogatus' which means 'to put in another's place, substitute’. Literally, The origin of present surrogacy practice can Surrogacy is the practice whereby one be traced through the evolution of assisted woman carries a child for another with the conception practices which dates back to intention that the child should be handed 1878 when for the first time the mammalian over after birth.692Infertility is not a medical oocytes were fertilized outside the body of ailment suffered only in the modern world the mother.694However, the in vitro but was also prevalent in the ancient time. fertilization of the human genes was accomplished only in 1945 by John Rock.695 The practice of surrogacy has gained impetus The years following this experiment were in the country for not long than 30 years but utilized for the perfection of the technique the history of its practice dates back to the and it was in 1978 when the successful live biblical times. It is the mention of Saraiand birth of the first test tube baby 'Baby Louise Abraham in the 'Book of Genesis'693 that Joy' paved way for the inception of the accounts the first and only recorded case of practice of gestational method of surrogacy surrogacy from that era as surrogate with new socio-medico standards.696 pregnancy was not much recorded then. In many societies it is a widely accepted The inception of surrogacy was primarily phrase “The parents construct the child biologically, initiated with traditional concept which was while the child constructs the parents socially.” subsequently criticized as being immoral and Fertility defines womanhood and unethical. The scientific advancements in the womanhood is defined by a woman’s conception field have successfully resulted in capacity to “mother”. However, the problem
692 Report of the committee of inquiry into human institute of the K.K University at Vienna, 2: 107 fertilisation and embryology, 2008. (1878). 693 The Genesis, GEN 16:2, 695 ROCK J. &MENKIN M.F., IN VITRO FERTILIZATION https://biblescripture.net/Genesis.html. AND CLEAVAGE OF HUMAN OVARIAN EGGS SCIENCE 694 Schenk S.L., The suckle fertilized outsIde of the 100-105 (1944). mother[artificial insemination of the mammals outsIde 696 Steptoe P.C. & Edwards R.G., Birth after the re- the mother] communications from the embryological implantation of a human embryo, The Lancet,12 August 1978 at 366. CORPUS JURIS|263
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in arises when parents are unable to construct a correct procedures. The inception of child naturally. Infertility does not only cause surrogacy was initiated mainly through mental and emotional anguish but is traditional concept which was subsequently resultantly a cause of domestic violence, criticized as being immoral and unethical. suicides and separation between the However, the gestational method is widely families.697 Herein, surrogacy comes as a accepted and practiced now. supreme saviour. The types and the practice of surrogacy based Infertility is a prevalent reproductive health on socio-legal scenario vary considerably problem worldwide. It is estimated that from country to country. While some infertility affects up to 15% of reproductive- countries allow all forms of surrogacy, the aged couples worldwide i.e., approximately others allow only gestational with sub- 80 million.698 Adoption is seen as a solution specification of altruistic and commercial. to the problem of childlessness however, the strong desire for having a genetically related While surrogacy is treated as savoir for child and the existence of stringent adoption childless, its other side depicts cases of laws and processes across the nations, the exploitation and malpractices in desire of problem of childlessness calls for an money. Paradoxically, a practice that went for alternative and feasible solution to enable resolving childlessness has resulted in couples experience the blessing of exploitation of reproductive capacities. The parenthood. resultant is surrogacy has become a vexatious issue that needs stringent laws for its strict The techno-medical advancements and the regulation. introduction of Assisted Reproductive Technologies (ART) particularly, IVF has The practice of surrogacy as an alternative to enabled the procreation of genetically related the childless must be accorded attention not children through ethically, morally and legally only because procreation is imperative to
697E. Petitpierre,Addressing subfertility/infertility in 7 WeiyuanCui, Mother or nothing: the agony of developing countries Challenges, WORLD HEALTH infertility,88 Bull World Health Organ 881, 881-882 ORGANISATION, (2010). https://www.who.int/reproductivehealth/topics/inf ertility/countryperspective/en/. CORPUS JURIS|264
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in social structure, but it is also a human right SURROGACY: AN OVERVIEW OF inhibited to each individual. Article 16 of PRACTICE IN INDIA Universal Declaration of Human Rights 1948 recognises the right to reproduce and In the absence of statutory framework procreation as a human right extending to all surrogacy has not been illegal in India. The man and women without any practice has remained completely discrimination.699 unregulated till 2005 when ICMR issued for the first-time guidelines for the performance Further, this right inhibits an implied right to of surrogacy. Initially, the social structure of parenthood for all humans. ART techniques the country was a huge impediment to the particularly, surrogacy has been opted widely acceptability of the surrogacy practice for the accomplishment of the desire to have especially the traditional method. However, children by those who cannot have them the introduction of assisted conception has naturally. increased the surrogacy cases in the country.
Article 22(b) of ICESCR, recognises the right Estimates show that more than 25000 of every individual to have access to the children are born through surrogacy every advancement in medical technology700 and year in the country. The legalisation of since surrogacy is a result of techno-medical commercial surrogacy through ICMR advancement its access must be opened to all guidelines, approved in 2005, attributed to those in need without any unreasonable the boost of commercial surrogacy in the restrictions. country and particularly, led to an increase in fertility tourism. Easy availability of The regulation of the surrogacy practice surrogates, low cost medical procedures, therefore must be a deliberate attempt aimed standardised medical facilities and primarily at ensuring each, procreative rights and the absence of law attributed towards parenthood blessings and be at par with the attracting major chunk of foreign couples progressive societies the world is heading to. seeking surrogates to India. Resultantly, India became renowned 'hub of surrogacy in the
699 Universal Declaration of Human Rights, 700 International Covenant on Economic Social and art.16(1948). Cultural Rights, art.22 cl. B. CORPUS JURIS|265
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in world' with flourishing surrogacy rackets and 1. Traditional surrogacy: the surrogate is private parties making it a $400 million pregnant with her own biological child but industry.701 with the intention of relinquishing it to be raised by others. The child may be conceived Though ICMR guidelines were to be via home artificial insemination or followed, surrogacy remained completely impregnated via IUI (intrauterine unregulated due to the absence of legal insemination), or ICI (intra cervical framework. This is why surrogacy has been insemination).703 denoted by some as a practice, some by arrangement or even a pregnancy procedure. 2. Gestational surrogacy: the surrogate becomes pregnant via embryo transfer with a It was only in 2008, the honourable Supreme child of which she is not the biological Court in the case of Baby Manji Yamada v. mother. She may have made an arrangement Union of India and Anr. defined surrogacy to relinquish it to the biological mother or as a method of reproduction and for the first father, or to a parent who is themselves time gave a legal definition to the concept of unrelated to the child (e.g. when donated egg, surrogacy and its sub-notions. The court sperm or embryo). The surrogate mother defined Surrogacy "as a well-known method of may be called the gestational carrier.704 reproduction whereby a woman agrees to become pregnant for the purpose of gestating and giving birth On the basis of monetary compensation to a child she will not raise but hand over to a gestational surrogacy is classified as: contracted party."702 1. Altruistic surrogacy: surrogacy wherein On the basis of Genetic Relation with the surrogate receives no financial reward surrogate/Medical procedure adopted for her pregnancy or the relinquishment surrogacy is classified as: of the child (although usually all expenses related to the pregnancy and birth are
10Nikita Doval, Surrogacy industry thrives in India 702Baby Manjhi Yamada v. Union of India, A.I.R. 2009 amId regulatory gaps,(Nov.03, 2014, S.C. 84.(India) 08:47PM),https://www.livemint.com/Politics/1tiGq 703Id. G9X9ChMt9Tb1pmNpM/Surrogacy-industry- 704Id. thrives-in-India amId-regulatory-gaps.html. CORPUS JURIS|266
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
paid by the intended parents such as were more than 2000 unregistered surrogacy medical expenses, maternity clothing, clinics operating in the country. and other related expenses).705 Following the massive trade of the 2. Commercial surrogacy: is a form of reproductive capacities, the Law commission surrogacy in which a gestational carrier is of India took suo-moto cognizance and in its paid to carry a child to maturity in her report highlighted the dire need for the womb and is usually resorted to by well government to enact a law soon to ban the off infertile couples who can afford the commercial surrogacy in the country.707 In cost involved or people who save and 2013, surrogacy for foreign couples and borrow in order to complete their dream single parents was banned.708 In 2015, the of being parents. government banned commercial surrogacy and permitted entry of embryos only for Commercial surrogacy has changed the research purposes. ideology of the society and has enabled economically marginalised women to earn LEGAL INSTRUMENTS FOR SURROGACY money and dignity. However, lack of IN INDIA regulation consequently resulted in malpractices in the form of exploitation of 1. Indian Council of Medical Research surrogate mothers, reproductive capacities Guidelines on ART: Chapter on the and the new-born child. The commercial guidelines provide general considerations for nature of the practice deteriorated the surrogacy. The guidelines allowed reproductive capacities to be referred by the commercial surrogacy in the country for both emotionally charged and potentially Indian as well as foreign married couples. It offensive terms "wombs for rent", restricted the age limit of a surrogate to 45 "outsourced pregnancies" or "baby years and pregnancy to 3 times. Surrogate farms”.706It is reported that in 2014 there may be relative of the same generation of
705Id. parties to surrogacy (2009), 706Id. http://lawcommissionofindia.nic.in/reports/report2 707228thLaw Commission of India Report, Need for 28.pdf). legislation to regulate Assisted Reproductive 708India bans gay foreign couples from surrogacy, The Technology Clinics as well as rights and obligations of Telegraph, Jan 18, 2013, ISSN 0307-1235. CORPUS JURIS|267
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in intending parents, or even unknown. Ever surrogacy Boards for the effective since 2005, ICMR guidelines are the only implementation of provisions of the bill and legal framework over surrogacy in the penalised commercial surrogacy and its country and are reviewed periodically by the related acts. However, the bill for its government. The guidelines were non unreasonable and arbitrary restrictions and statutory and non-justifiable in court of law classifications was sent to a Departmental were critically only general guidelines to be parliamentary standing committee by Rajya followed.709This was a major reason for the Sabha for seeking recommendations. exploitative result of surrogacy in India. 4. Surrogacy Regulation Bill 2019: The bill 2.ART Bill (2008- 2017): Following the of 2016 was reintroduced in the house of the guidelines of the ICMR over ART people entailing same provisions as earlier procedures, the legislative body presented a and was again sent for the recommendation bill called Assisted Reproductive Technology to The Select Committee. Regulation Bill 2008 whose final version of 2017 is currently deliberated. CRITICAL APPRAISAL OF THE SURROGACY REGULATION BILL 2019 3. Surrogacy Regulation Bill 2016: The (CONSTITUTIONAL VALIDITY) legislature in 2016 brought the first comprehensive bill over surrogacy. The key In August 2019, Lok Sabha passed the highlights of the bill are stated hereinafter; it Surrogacy (Regulation) Bill 2019 in its aims at putting a blanket ban on commercial original form, without any amendments surrogacy and allowed only altruistic, it adhering to the recommendations of report nd allowed only a close relative to act as 102 of Departmental standing committee. surrogate, it legalised altruistic surrogacy for However, on production of bill before Rajya only Indian married man and women to opt Sabha, it was sent further to the select surrogacy. The bill had provisions for the committee that submitted its report on establishment of National and State February 5, 2020.
709228thLaw Commission Of India Report, Need for (2009),http://lawcommissionofindia.nic.in/reports/r legislation to regulate Assisted Reproductive eport228.pdf. Technology Clinics as well as rights and obligations of parties to surrogacy CORPUS JURIS|268
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
The SRB 2019 is severely criticised as commercial surrogacy and legalise only invidious and violative of Fundamental altruistic if performed by a close relative. The Rights and if enacted, will follow a cluster of provisions of the bill are critically aimed at litigations in the court challenging the protecting the interest of prospective constitutional validity of the act as well as surrogate mothers and child and only a class litigations over sub-notions left unregulated of infertile married couples. The provisions under the bill which led to another level of of the bill are regressive as they are critically contentions. violative of Art. 14712 and 21713 as they entail unreasonable classifications and restrict The Right to life and personal liberty has reproductive rights of infertile unreasonably. been given widest interpretation by the Apex court of the country in recognition of myriad The bill is discriminatory in nature which intrinsic rights. The Supreme Court in case of creates discords, as it aims at protecting the Suchitra Shrivastava v. Chandigarh reproductive rights of only a class of infertile Administration710 recognised right to couples having close relatives. Somewhere reproductive choice as a dimension of this seems to be a legerdemain way in which personal liberty u/a 21 and held that the right this classification has become a reason for the to reproductive choice embodies a woman's people to relinquish to have child through entitlement to carry a pregnancy to its full surrogacy, because of the reason that, people term, to give birth and to subsequently raise in our society feels demure to be a beholden children. "Reproductive choices are Fundamental for their relatives especially for surrogacy Rights and are a facet of right to privacy and the process. This classification ludicrously intrusion of state into such a decision-making process restricts the right to procreation of infertile has to be scrutinised by the Courts." as has been couples who do not have a will for close held in B.K. Parthsarthi v. State of relative to be a prospective surrogate. AndraPradesh711 Correspondingly, the bill doesn’t lay out an express definition of the term 'close relative' The cerement SRB 2019 aims at banning opening up for its wide interpretation
710SuchitaSrivastava v. Chandigarh Administration, 712INDIA CONST. art.14. A.I.R. 2010 S.C. 235. 713INDIA CONST. art. 15. 711B.K. Parthasarathi v. Government of A.P., A.I.R. 2000 A.P. 156. CORPUS JURIS|269
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in particularly, an ambiguous one. the laws.
Section 2(g) of the bill defines a couple as a Further, the eligibility criteria for the legally married man and woman and thereby, intending couples entail a sub-classification excludes LGBT population to opt surrogacy. that is completely arbitrary and unreasonable In Navtej Singh Johar v. Union of India and lack nexus to any object of the 714the court recognized reproductive legislation. Section 4(c) (II) of the bill permits autonomy of the homo-sexual couples. The surrogacy to only those infertile couples who ruling of the satre-decisisturns futile if the are married for 5 years. The criteria are country welcomes a law that arbitrarily seemingly based on moralistic assumptions restricts entitlement to parenthood just on than on scientific criteria. The purpose for the ground of sexual orientation. legally undertaking surrogacy is restricted to proven infertility which is defined u/s 2(p) of The classification between couples forming Surrogacy (Regulation) Bill 2019 as men and women from those of LGBT "“infertility” means the inability to conceive after five population will fail to pass constitutional years of unprotected coitus or other proven medical scrutiny as it perpetuates solely from condition preventing a couple from conception". stereotypes and lacks constitutional object. Inability to procreate a child naturally is not The society is heading towards a progressive limited to infertility only but natural democracy in which new dimensions of reproduction is hindered due to several living are equally recognised and duly medical ailing such as ruptured uterus, considered as a putative by the honourable multiple miscarriages etc.715Seemingly, court often escalating them under lawmakers have in haste completely ignored fundamental rights. A law that falls short of these studies. Moreover, the stipulated time recognizing such rights will fail to pass for proven infertility is set as 5years which is constitutional validity. Therefore, it calls for again inconsonant with the general time of 1 necessary changes to fill the lacunae between year provided by the World Health the changing socio-cultural dimensions and
714Navtej Singh Johar v. Union of India,A.I.R. 2018 715Nayana Hitesh Patel et al., Insight into Different S.C. 4321. Aspects of Surrogacy Practices, 11 (3) J HUM REPROD SCI. 212, 212-218(2018). CORPUS JURIS|270
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Organisation.716 involved is a regulated commercial surrogacy practice instead of a blanket ban over it. The All above, the bill aims to ban commercial Select Committee has also pointed out; the surrogacy and permit only altruistic surrogacy ideas of legalising only altruistic surrogacy are which is ethical. Commercial surrogacy is based only highly moralistic) and the allegedly criticised as exploitative and assumptions and are in direction of expecting deteriorating the human reproductive too much out of mankind.717 capacities to merely a mechanical service hired as labour. It due to its commercial Interestingly, in a country where prostitution nature that surrogacy is more often given is accepted in the eyes of law, why is a service degrading references such as 'wombs for of womb is unacceptable? rent, baby farmsetc.’ and not considered as a putative way to conceive a child. However, COMPARATIVE ANALYSIS OF SURROGACY ignorance to the socio-economic landscape LAWS WORLDWIDE of the society should not be tolerated while enacting such law. Commercial surrogacy is The laws regulating surrogacy forms and equivalently benefiting to the surrogates who practices vary considerably from country to desire of economic recognition in their country. However, there are certain common families, because they too may be grappling parameters which provide a base for the through some crucial parsimonious stages. A comparison of the legal framework of the practice that is equal benefiting in terms of countries with respect to surrogacy. The child to the needy couples and money to the common parameters that are generally the needy surrogates must be deliberated before cause of contentions are: the type of completely holding as against public policy surrogacy, legalisation of surrogacy for non- and therefore, unlawful. Owing to the myriad residents, married or unmarried or same sex complexities and advantages glaring out of couples, legal mother, marital status of commercial surrogacy, a mid-way solution to surrogates. protect the interest and rights of the parties
716Zegers-Hochschild et al., International Committee (WHO) revised glossary of ART terminology, 24 for Monitoring Assisted Reproductive Technology WHO 2686,2683–87(2009). (ICMART) and the World Health Organization 717Report of the Select Committee on the surrogacy (Regulation) bill, 2019, https://rajyasabha.nic.in/. CORPUS JURIS|271
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
Legalisation of surrogacy: Countries like stateless. For instance, in UK the surrogate Brazil, Canada, UK, Ireland, Denmark and mother is the legal mother and the intending Belgium allows only altruistic form of couples have to adopt the child from the surrogacy whereas India, Iran, Russia, surrogate or apply for a parental order721 Thailand, Ukraine and some USA are states whereas in India the intending mother is where both commercial and altruistic considered as the legal mother. Legal surrogacy is practiced. In contrast, there are parenthood can be transferred by parental countries such as France718, Germany719, Italy, order or adoption after the child is born. Spain, Portugal and Bulgaria that have put a blanket ban on the practice of surrogacy. Eligible couples: Generally opposite sex married couples are allowed to undertake Fertility tourism: The cost incurred on surrogacy in most of the countries. However, surrogacy procedure and the flexibilities of countries like Russia, UK,722 Israel723, Brazil the law is the determining constituent for the and Colombia have allowed same-sex choice of the country to undertake surrogacy. couples also to undertake surrogacy. The countries like US, India, Ukraine and Russia are the prime attractions for the Eligible surrogates: There are countries intending couples. After the Baby Gammy such as Brazil, Vietnam and UK that permits case720, Thailand has banned surrogacy for only relatives and blood relatives respectively foreign couples. to be surrogates. India in its Surrogacy Bill724 has adopted a narrower approach by Legal Mother: The laws regarding the restricting this aspect to only close relatives. entitlement to legal mother hinges from The differentiations of the legal aspects of country to country. This is a major cause for surrogacy in the different countries are the surrogate child to be resultantly born tabulated as follows:
718 French Civil Code, art. 16.7(1804). 721The Human Fertilization and Embryology Act, c22, 719The Embryo protection Act, Part I, No. 69, Federal §35(2008). Law Gazette, 1990. 722Ibid. 720Thailand Bans Commercial Surrogacy, 723Georgia Everett, Israeli High Court extends GUARDIAN MEDIA GROUP (Feb. 20, 2015, 7:54 surrogacy rights to same sex couples, PROGRESS AM), EDUCATIONAL TRUST (Mar. 2, 2020), https://www.theguardian.com/world/2015/feb/20/ https://www.bionews.org.uk/page_148257. thailand-bans-commercial-surrogacy. 724Surrogacy Regulation Bill, 2019, Bill No. 156-C (India). CORPUS JURIS|272
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
FOREIGN SURROGACY ALTRUISTIC COMMERCIAL LGBT COUNTRIES COUPLES ALLOWED SURROGACY SURROGACY COUPLE ALLOWED Australia ü ü û û û Austria û û û û û Brazil ü ü û ü ü Bulgaria û û û û û Canada ü ü û ü ü China û û û û û Colombia ü ü û ü ü Cambodia û û û û û Denmark ü ü û û û France û û û û û Georgia ü ü û ü û Germany û û û û û Greece ü ü û ü û Hong Kong ü ü û ü û India ü ü ü ü û Ireland û û û û û Israel ü ü ü ü ü Italy û û û û û Nepal û û û û û New Zealand ü ü û ü ü Norway û û û û û Russia ü ü ü ü ü South Africa ü ü û û ü Spain û û û û û Sweden û û û û û Switzerland û û û û û Ukraine ü ü û ü û
CORPUS JURIS|273
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
United ü ü û ü ü Kingdom United states ü ü û û ü
CORPUS JURIS|274
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
CONCLUSION
The higher level of infertility rates and the number of people undertaking surrogacy clearly reflects the current need of the society. When an infertile couple desires to have a genetically related child, surrogacy is the mere way and option to go with. But it becomes a reason of dichotomy between the couple and their family. In India a woman who cannot conceive a child is not considered as a putative female or a wife, and somewhere this has led to family contentions between the women and her in-laws. However, the legal repercussions from the surrogacy call for a need to enact a comprehensive legislation. The Government therefore, has an obligation to enact a law which is at par with the progressive society the country is changing to. Surrogacy as a practice must be given social acceptability. Amidst the current infertility rates, it is important to clear the stigmas and taboos associated with. Secondly, for the government, the need of the hour is to understand the intensity of the consequences of infertility and surrogacy as a curative alternative.
By doing so Surrogacy Regulation Bill 2019 must be amended to fill the legal lacunas it still carries. The law must be more inclined towards ensuring the rights and expectations of those who are the sufferers rather than be more influenced by the policy debates. Surrogacy in the country must be allowed to all needy people irrespective of any unreasonable distinction of sexual orientation or years of marriage. Surrogacy must be allowed to be undertaken by any willing woman of suitable medical age. In order to abate the malpractices and exploitation done from commercial surrogacy, the country must welcome regulated commercial surrogacy instead of a blanket ban on it. Having a child from the surrogacy process is not considered as a convenient and parsimonious for some people having financial crises but notwithstanding this, they are being pressurized to do so for which a stentorian voice should be raised. A progressive law can introduce a new concept of ‘compensated surrogacy’ with a provision to set a limit of monetary compensation under the law. Surrogacy is neither a labour nor a social practice; it is a method of procreation and requires it to be dealt with a different sort of provisions to regulate it. After this another issue should be enshrined before the judiciary that even after the allowance of commercial of surrogacy, giving birth to a child for another needy couple is a kind of sacrosanct job but charging unreasonably would be injustice to this. Therefore, the lawmakers should come with a comprehensive law that ensures protection of rights of all the parties involved in the surrogacy.
CORPUS JURIS|275
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
TACKLING THE ILLICIT TRADE OF SMALL ARMS AND LIGHT WEAPONS BY NON-STATE ACTORS: AN INTERNATIONAL PERSPECTIVE
-SURAJ T.N.* ABSTRACT
The international community has been troubled by acts of violence and cruelty from non-state actors like terror groups for a very long time. One of the main reasons behind the growing power of terror groups and other non-state actors is the illicit trade of Small Arms and Light Weapons. Illicit trade of such arms has made it a lot easier for non-state actors to continue using them in pursuance of their objectives. In order to curb this problem, the international community adopted the Convention Against Transnational Organised Crimes in 2000, and subsequently adopted a protocol complementary to it. Later, the United Nations adopted a political directive named The Programme Of Action to Prevent, Combat And Eradicate The Illicit Trade In Small Arms And Light Weapons in all its Aspects of 2001, and a subsequent instrument only for the purpose of tracing weapons that are being illicitly traded. The international community further adopted the Arms Trade Treaty of 2013 for the purpose of putting an end to the flow of illicit arms. This paper analyses each of these steps taken by the international community and suggests some changes that must be made in order to make the law more effective. Apart from this, the paper focuses on how Small Arms and Light Weapons are being traded by non-state actors, and how governments and the dark web aggravate this problem. The paper also analyses the role of the United Nations Security Council and its imposition of embargoes in the context of illicit arm trade.
KEYWORDS: Illicit Trade, Arms Trade, Dark Web, SALW, United Nations, Crypto Market, Arms Trade Treaty.
* Student, 3rd Year, B Com. LLB, SRMIST School of Law. CORPUS JURIS|276
Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in
INTRODUCTION an illegal purpose, or trading them without necessary authorisation. Quite obviously, in Over the course of several years, concerns most cases of illicit trade, arms and over the rising trend of illicit arms trade by ammunition are traded to unauthorised end- non-state actors have become profound. users without authorisation of states. Illicit trade simply refers to an, “exchange in the control/possession of a good or service There are different categories of weapons- that a lawmaker (national or international) nuclear weapons, Weapons of Mass deems illegal, because the object of the Destruction (hereinafter referred to as exchange is dangerous or morally WMD) and Small Arms and Light Weapons repugnant”725. In the context of weapons, the (hereinafter referred to as SALW). Out of United Nations Firearms Protocol defines these categories of weapons, SALW are the illicit trafficking of firearms as, “the import, most common category of weapons that are export, acquisition, sale, delivery, movement traded by non-state actors. Small Arms and or transfer of firearms, their parts and Light Weapons are two different categories components and ammunition from or across of arms, and there is a line of distinction the territory of one State Party to that of between the two727. Small arms are another State Party if any one of the States predominantly for individual use728. Small Parties concerned does not authorize it in arms include handguns (revolvers and self- accordance with the terms of this Protocol or loading pistols); long guns, namely rifles and if the firearms are not marked…”726. Simply carbines, sub-machine guns, assault rifles, put, illicit trade of weapons refers to trading and light machine guns; as well as their parts, arms and ammunition with an unauthorised components, and ammunition729. Even the end-user (who can be a non-state actor) for International Tracing Instrument, 2005
725 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in defines small arms in a similar manner730. This paper limits its scope to the illicit trade Light weapons, on the other hand, are those of SALW by rebel groups and terror groups/ that are designed for usage by small groups organisations. The main reason behind of people, but can also be used by limiting the scope of the paper is that these individuals731. This category includes heavy entities have increased their influence and machine guns, landmines, explosives, power because of their access to weapons. portable anti-tank guns, shells and missiles The paper focuses solely on SALW because for light weapons, etc732. The common nuclear weapons and WMD are difficult to characteristic between the two is that they are manufacture, procure and use. Moreover, both portable. they are illicitly traded in very small numbers when compared to SALW. Before going into the crux of the issue, it is pertinent to discuss about what kind of MARKET VALUE OF SALW AND HOW entities can be classified as non-state actors. THEY ARE BEING ILLICITLY TRADED Simply put, a non-state actor is an individual or organisation that is not being funded or There are several ways through which SALW directed by the government733. In the context can be illicitly traded by non-state actors. of arms trade and security, the term refers to Once non-state actors get their hands on armed rebel groups, paramilitaries, warlords, weapons, it is clear that they will use them in civilian militia, civil defence forces, vigilante pursuance of their objectives. For example, groups, terror groups/organisations, criminal the ISIS and the Al-Qaeda acquire a lot of groups involved in arms trade, political their weapons through illicit arms trade735. parties, private military agencies, arms This is fairly obvious because the ISIS or the traders, etc.734 Al-Qaeda cannot step into the legal market to l%20arms%20are,persons%20serving%20as%20a%2 %20organizations,paramilitary%20and%20armed%2 0crew.> 0resistance%20groups.> 730 International Instrument to Enable States to 734 Greene et al, Developing International Norms to Identify and Trace, in a Timely and Reliable Manner, Restrict SALW Transfers to Non-State Actors, Illicit Small Arms and Light Weapons Article 4(a)., (London: Biting the Bullet, Jan. 2006) Available at < http://www.poa- Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in acquire weapons. The majority of ISIS’ and There are other reports suggesting that the the Al-Qaeda’s weapons have been acquired value of “trafficked arms” is estimated to be as a result of their control over Iraqi stockpile around 10 Billion Dollars per annum, in and by trafficking weapons. However, it is which about 1 Billion Dollars amounts to the very tough to estimate the quantum of SALW trafficking of SALW737. Another estimate is that the ISIS or Al-Qaeda has acquired that the size of the illicit arms market through illicit trade, as there is no clarity over amounts to about 10-20% of the total size of their stockpiles. the legal arms market. This arrives at an estimation of 170 Million dollars to 320 Market value of the illicit SALW market Million dollars738. A general estimation can be given with regards to the quantum of SALW that is Illicit arms trade is also predominant in areas being traded illicitly. Approximately, 5,00,000 which are controlled by drug cartels and people are killed each year by 639 million other organisations involved in organised small arms in circulation, and in some crimes739. These organisations follow the conflicts, up to 80 percent of casualties are method of “ant trade” to illicitly trade caused by small arms that are illicitly weapons. Ant trade is where a small number traded736. This is largely because small arms of weapons are delivered over a period of are easy to store, use, transport, and are very time, thereby resulting in the accumulation of lethal. They can also be used after conflicts a large number of illicit SALW with have ended. Therefore, they are ideal for unauthorised end users740. The arms that are violent groups. being traded through this method can be procured through any means. Efforts, (Sipri Background Paper, November 2018), 739 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Role of governments in the illicit trade of destabilise the region745. This practice is also SALW predominant in areas like Sudan, where the It is widely believed that only private political stability is weak746. Even the Liberian organisations take part in illegal trade of government is known to have sent weapons SALW that involve non-state actors. In to rebel groups in Sierra Leone747. In the past, reality, however, even governments countries like Egypt and the United Arab contribute to illicit trade by arming proxy Emirates were accused of arming rebel groups or terror groups with similar groups that were spearheading the anti- agendas741. This is very predominant in Gaddafi Movement748. Africa. A report of the Conflict Armament Research states that the ISIS received In cases where governments trade weapons weapons that were manufactured legally but with non-state actors, diversion is the most were routed to it by governments. Even common method that is used. At times, a corruption among government officials is weapon that is there in the legal market is one of the reasons behind illicit SALW trade transferred to the illegal market. This is in this regard742. known as diversion749. Diversion can take place during various stages of the life cycle of There have also been instances where states a weapon. have illicitly supplied arms to the Palestine Liberation Organisation and the Hamas743. The role of brokers Iran has also been accused of arming the Another way through which illegal trade can Hezbollah and the Houthi Forces in take place is through brokers. Brokers are Yemen744. In certain cases, rebel groups have intermediaries who facilitate arms trade750. received arms illicitly. This was witnessed in Such brokers are well acquainted with the Somalia when states armed rebel groups to market and are aware of how they must 741 Supra note 739. Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in circumvent laws and regulations. Brokers arms being one of them. The dark web generally thrive and depend on states that contains various markets that sell drugs, lack governmental control751. Therefore, they weapons, children-related pornographic can play a major role in facilitating illicit arms content, etc. The markets on the dark web trade in areas that suffer from severe can be classified into two:- instability. 1. Crypto Markets- These are online The dark web and the illicit trade of marketplaces that work like Amazon and SALW Flipkart754. They have several listings on The world wide web that most people are their websites which sell different aware of is only a small part of the internet. commodities like weapons, drugs, etc. The major part of the internet that is covered Customers can locate what they want on in obscurity is the dark web. The dark web is these listings. that part of the internet that cannot be 2. Vendor Shops- These are online accessed through normal search engines752. marketplaces that specialise in products The most commonly used search engine for or do not have as many listings as crypto accessing the dark web is Tor753. Moreover, markets755. the location of users is transferred from one server to another on a frequent basis. This What makes the dark web even more keeps the users’ identity and location challenging for law enforcement agencies is anonymous. As a result, it is used as a that cryptocurrency is used to make platform for committing several illegal payments on the dark web756. This keeps the offences, with the illicit sale and purchase of payment details of individuals obscure, too. 751 Ibid. ing-the-Dark-Web-A-Conceptual-Perspective- 752 Challenges-and-Implementation.pdf Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Research conducted by the UN in 2018 why telecommunication services were reported that 811 listings of arms and disconnected in the state of Jammu and ammunition were found on the dark web757, Kashmir before and after the abrogation of with 42% of the listings dealing in firearms758. Article 370 was that the government feared Digital products came next at 27% and other that the dark web would be used by weapons constituted 22% of the total individuals/groups to purchase arms763. At listings759. Digital products are guides for the moment, there are no laws that making weapons760. Out of the total number particularly deal with the dark web. Even of firearms being listed on the dark web, the though the volume of SALW being traded on UN found out that 84% of the firearms were the dark web may be small when compared pistols with 6% being machine guns and 10% to other sources, the threat that the dark web being rifles761. Though pistols are not imposes cannot be ignored. predominantly used by non-state actors, they give a sense of direction that majority of the THE UNITED NATIONS’ STAND AGAINST weapons sold on the dark web come under ILLICIT TRADE OF SALW the category of SALW. The United Nations has always raised its An example of a terror attack arising due to concerns about the trade of arms. Former the sale of weapons on the dark web was U.N. Secretary-General, Ban Ki-moon, when a lone-wolf terrorist used a weapon expressed concerns over the fact that several that he purchased from the dark web762. The African countries that have been maimed by same worry was also voiced before the armed conflicts, received most of their arms Hon’ble Supreme Court by the learned from outside Africa764. Solicitor General of India, Shri. Tushar Mehta, who stated that one of the reasons 757 Supra note 754. 762 < 758 Ibid. https://www.rand.org/randeurope/research/project 759 Ibid. s/international-arms-trade-on-the-hIdden- 760 web.html.> Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in The most common and foremost way of Crimes in 2000. The convention came into curbing the trade of weapons is the effect on 29th September, 2003. In order to imposition of embargoes by the United supplement this convention, the United Nations Security Council. An embargo is a Nations adopted a protocol named the ban that is imposed on a country or on Protocol Against the Illicit Manufacturing of several countries. In the context of arms and Trafficking in Firearms, their Parts and trade, an embargo is a ban on a state from Components and Ammunition of 2001 dealing with arms. Apart from imposing (hereinafter referred to as the “2001 embargoes, the UN has also adopted several Protocol”). The 2001 Protocol was adopted treaties and protocols. It is pertinent to through Resolution 55/255 and came into analyse the treaties and protocols before effect on 3rd July, 2005. The 2001 Protocol analysing the scope and applicability of specifically deals with the illicit manufacturing embargoes. and trading of firearms. The convention defines a firearm as, “any portable barrelled weapon THE UNITED NATIONS CONVENTION that expels, is designed to expel or may be AGAINST TRANSNATIONAL ORGANISED readily converted to expel a shot, bullet or CRIMES OF 2000 AND THE SUBSEQUENT projectile by the action of an explosive, PROTOCOL OF 2001 excluding antique firearms or their replicas. Antique firearms and their replicas shall be The United Nations, in its capacity, has stated defined in accordance with domestic law.”766 that, ”SALW are indiscriminate and their The definition is wide enough to include effects are devastating, regardless of age, SALW, as even they are portable and can expel gender, religion, or ethnicity.”765. In order to a shot, bullet or a projectile. combat the growth of illicit trade of SALW, the United Nations adopted the United Nations The purpose of the 2001 Protocol767 is to Convention Against Transnational organised promote, facilitate and strengthen 765 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in cooperation among States Parties in order to and Light Weapons in All Its Aspects prevent, combat and eradicate the illicit (hereinafter referred to as the 2001 manufacturing and trafficking of firearms. programme). The programme notes the Article 5 mandates that state must criminalise concern that the United Nations has about the illicit manufacturing and trafficking of the illicit manufacture and trade of SALW. firearms. It also calls upon contracting states Though the programme is only a political to prevent entities from falsifying or directive, it lays down directives that must be obliterating markings on firearms. The followed by states at three different levels- at protocol also prescribes that contracting a national level, at regional levels and at the states must enable themselves to confiscate, global level. At a national level, all nation seize and dispose illegally obtained firearms states have agreed to improve municipal laws (under Article 6); maintain records of on small arms and also implement the same firearms for at least a period of 10 years efficiently. (under Article 7); maintain markings on firearms so that contracting states can The programme calls upon states to identify the country of manufacture (under designate national coordinating agencies and Article 8); maintain information about establish national points of contact for the firearms (under Article 12); and cooperate purpose of monitoring the control of illicit with other contracting states to ensure the arms trade. It also asks nation states to prevention of illicit trade of firearms. control exports and imports. The programme also emphasises upon protecting stockpiles PROGRAMME OF ACTION TO PREVENT, of arms so that they do not get stolen and COMBAT AND ERADICATE THE ILLICIT traded illicitly. Apart from this, it also TRADE IN SMALL ARMS AND LIGHT requests states to identify individuals WEAPONS IN ALL ITS ASPECTS, 2001 involved in illicit trade, and to keep records of small arms. Then, the programme largely In 2001, member states entered into the reiterates what has already been laid down in Programme of Action to Prevent, Combat the 2001 protocol. and Eradicate the Illicit Trade in Small Arms manufacturing of and trafficking in firearms, their parts and components and ammunition. CORPUS JURIS|284 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in On a global level, the programme seeks through the lines of supply to the point at cooperation with the United Nations, the which they became illicit”769. Department for Disarmament Affairs, the Interpol and the Secretary general. The The instrument stipulates that states must programme also makes it particular that either mark and record, or destroy any of the states must try their best to destabilise and weapons that they seize. If states fail to do disarm combatants in post-conflict zones. either of the two, then they must safely secure Taking a cue from this, the United Nations them770. The instrument also calls upon states adopted an instrument particularly for the to cooperate with each other. This includes purpose of identifying and tracing SALW exchanging information about tracing and that is being illicitly traded. also requesting for arms to be traced. The instrument also prescribes the manner in THE INTERNATIONAL TRACING which states must respond to such requests. INSTRUMENT OF 2005 It also requests states to cooperate with the International Criminal Police Organisation In 2005, the UN adopted an international and also seek the aid of the Interpol in the instrument to enable states to identify and following areas:- trace illicit arms768 namely, the International Instrument to Enable States to Identify and 1. Facilitation of tracing operations; Trace, in a Timely and Reliable Manner, Illicit 2. Carrying out investigations Small Arms and Light Weapons (hereinafter pertaining to the illicit trade of referred to as 2005 instrument). The SALW; and instrument defines “tracing” as the 3. Building national capacity to initiate ,”systematic tracking of illicit small arms and and respond to tracing requests. light weapons found or seized on the territory of a State from the point of One can clearly infer that the 2001 protocol manufacture or the point of importation lays down general principles to deal with 768 769 See clause 5 of the instrument. Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in illicit trade of SALW. The 2001 programme General Assembly771. 156 countries voted in reiterates many things mentioned in the 2001 favour of the treaty, with 3 countries voting protocol. Even the 2005 instrument on against it, and with 23 countries abstaining772. tracing reiterates a lot of provisions The main feature of the Arms Trade Treaty, mentioned in the aforementioned protocol, 2013 (hereinafter referred to as the “ATT”) but the instrument stands apart as it talks is that it extends only to external transactions about tracing weapons that are being illicitly and not to internal transactions773. Moreover, traded. the treaty extends only to “conventional arms”. The treaty does not use any other Owing to the fact that there wasn’t a term apart from “conventional arms” to refer document that could comprehensively deal to weapons. The term includes battle tanks, with the flow of illicit arms trade, the member armoured combat vehicles, high-calibre states of the United Nations adopted the artillery weapons, attack helicopters, missiles, Arms Trade treaty, 2013. missile launchers and SALW. Therefore, the scope of the term is wide enough to include THE ARMS TRADE TREATY OF 2013- THE several categories of weapons. The treaty, PRINCIPAL TREATY FOR NOW however, does not apply to the transfer of weapons by states for their own use. Despite a plethora of steps being taken, the United Nations decided to bring a robust law The ATT makes it clear that states are bound to check the spread of illicit weapons. The to maintain national control systems that United Nations convened in 2012 for the regulate ammunitions/munitions fired, purpose of adopting the Arms Trade Treaty, launched or delivered774. A national control but could do so only in 2013, when it was system must also be maintained for the adopted through a resolution passed in the purpose of regulating parts and components 771 773 Supra note 764. Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in of weapons (under Article 4). States shall also authorizations and deliveries of weapons to maintain national control lists and must make state parties to the secretariat. them available to other states. They must appoint national agencies for the purpose of THE ATT- A TREATY THAT IS FAR FROM implementing the aforementioned. PERFECT The ATT also prohibits the transfer of arms The ATT was expected to be a solution for and ammunition by states in cases of them the growing problem of illicit arms trade. being in violation of Chapter VII of the UN However, it has not served the purpose for Charter, or if they happened to be in violation which it was adopted. India abstained from of any international agreements pertaining to voting in favour of the ATT, and the reasons the illicit trade of weapons. States are also behind the same clearly elucidate why the prevented from transferring weapons if it is ATT is far from ideal for the purpose of felt that the weapons so transferred would be preventing illicit SALW trade by non-state used for the purpose of committing crimes or actors. The ATT is incompetent due to the violating UN conventions, laws and following reasons:- treaties775. 1. Soft on terror groups and non-state The ATT also vests obligations on states to actors conduct export and import assessments of Firstly, the ATT is very soft on terror weapons and take measures to regulate organisations and other non-state actors776. brokering, transport and trans-shipment of Despite stating that states must make sure weapons. Finally, it also asks states to that arms are not traded illicitly by maintain records on export authorisations unauthorised end users for terror acts, the for at least 10 years and to submit reports treaty, more than taking a stand against terror pertaining to export and import groups and other non-state actors, imposes obligations on states to be careful in their 775 rms+Trade+Treaty#:~:text=Mr.&text=From%20th Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in dealings with each other. The treaty does not not a party to the treaty till June, 2020. India, use the term non-state actors anywhere. It which is one of the largest arms importer in only uses the term “organised groups”. This the world, is not a party to the treaty either. is a flaw as a state can acquire weapons from Therefore, the main purpose will not be another state by complying with the terms of served until the major players are not the treaty and can subsequently transfer them involved in the treaty. to non-state actors. It has also been pointed out by India that the ATT does not properly 3. Lack of uniformity in establishing balance the obligations and rights of control systems exporters and importers. Thirdly, the treaty suggests that states must establish national control systems for the 2. Failure to include certain major players purpose of regulating export and import of Secondly, major players in international arms conventional arms. However, there is little to trade like Russia and Iran have not become no clarity over the form and modus operandi contracting parties to the treaty777. This of these national control systems781. This will reduces the authority of the treaty as it does result in a lot of inconsistency over how these not bind on such countries that play a control systems must be established and significant role in arms trade. As a matter of maintained. Another problem is that such fact, Russia is the world’s second largest arms control systems are already in place in many supplier778 and has been a major supplier of nation states. Therefore, this particular arms and ammunition to Iran over the past measure that the ATT is envisaging is only decade. Even the United States of America is causing more confusion than clarity over only a signatory to the convention and not a how states are supposed to go about with party779. What makes it even more worrisome their business of tackling the illicit trade of is that the President of the USA, Donald SALW. Trump, has expressed that America must withdraw from the treaty780. Even China was 777 778 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in 4. “Overriding risks”- a tool to prevent advantages of the transfer, then a state must exports782 not authorise the export784. This is one of the main reasons behind India deciding to not become a party to the treaty. This provision vests unwarranted power on The treaty, under Article 7(3), lays down that exporting states to accept or deny the a state must not authorize exports if after authorisation of exports. The provision states considering mitigating measures, it feels that that if the exporter feels that there is an there is an overriding risk of a negative “overriding risk”, then he can deny consequence as stated in Article 7(1). The authorisation. The term has not defined provision is as follows:- anywhere. As a result, it is up to exporting states to decide what is an overriding risk and 7.3. If, after conducting this assessment and what is not. This can be used by exporting considering available mitigating measures, the states to maliciously deny other states exporting State Party determines that there is an necessary arms and ammunition785. overriding risk of any of the negative consequences in Moreover, there is no judicial remedy that paragraph 1, the exporting State Party shall not importing states can resort to. Hence, states authorize the export. can dodge requests for exports by misusing the provision. India frowning upon this The consequences stated in Article 7(1) are- provision makes sense as it is one of the (i) if peace and security is undermined or, (ii) world’s largest importer of arms. if the arms exported are used for wrongs that facilitate the violation of international 5. Failure to change the meaning of the humanitarian law or human rights law, or (iii) term “export” if the arms are used to commit a crime under Article 2 of the ATT defines the scope of the international law783. This means that if the treaty. The article prescribes that “transfer” possible risks outweigh the possible comprises of import and export. The term “export” has not been defined by the ATT. 782 Supra note 778. 563_The_Arms_Trade_Treaty_An_Interpretive_Stu 783 Huttunen, Mikko. (2014). The Arms Trade Treaty: dy#pf44.> An Interpretive Study. 10.13140/RG.2.1.3840.5520, 784 Ibid. available at 785 Supra note 778. Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in However, it is well-settled in international law exports to be illegal790. However, in 2020, the that the term includes gifts, leases and United Kingdom decided to resume selling loans786. Therefore, the provision can be weapons to Saudi Arabia791. This is a clear interpreted to include gifting, leasing and example of how a nation state that supported loaning weapons. This has a chance of the ATT, is now directly violating it. So far, obliterating the purpose of the treaty as it can no action has been taken by the international result in carrying out activities that have been community in this regard. Such an act by the barred by the treaty. This could have been United Kingdom does make one wonder easily avoided by giving a definition that about the force and power of the treaty. would fit in the context of arms trade. As aforementioned, the 2001 Protocol, the 6. The export of arms to Saudi Arabia by 2001 Programme and the 2005 instrument the United Kingdom- flying in the face had a lot of overlapping provisions with very of the ATT little sense of direction. The 2005 tracing The United Kingdom was one of the added to the existing law by providing for foremost supporters of the ATT during its tracing, but even that was deemed to be negotiation787. However, soon after the treaty insufficient. Therefore, in order to ensure was brought into existence, the United uniformity and clarity, the ATT was adopted. Kingdom started exporting large volumes of However, due to the aforementioned arms and ammunition to Saudi Arabia788. reasons, the ATT is not ideal to take the These arms and ammunition have been used world forward in the quest to fight against by Saudi Arabia to commit crimes against illicit SALW trade by non-state actors. The humanity in Yemen over the recent years789. international community must either amend In the light of these atrocities, the Court of the ATT or must decide to adopt another Appeal of London, in 2019, declared these treaty that comprehensively covers 786 790 The Queen Vs. The Secretary of State for Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in everything prescribed in the 2001 protocol, prevent the proliferation of SALW. the 2001 programme and the 2005 Resolution 1373 (2001) mentions that the instrument (by also ensuring that there is no connection between terrorism and illegal overlapping). It must also cover the ATT, arms is concerning793, but there is nothing along with special emphasis on transfer to concrete about its prevention. non-state actors. The treaty must also cover some other areas that have been mentioned EMBARGOES AND THE ILLICIT TRADE at a later stage of this paper. OF ARMS THE UNSC AND ITS BATTLE AGAINST As aforementioned, the UN has also THE ILLICIT TRADE OF SALW imposed several embargoes on different countries from trading weapons. These By virtue of Article 26 of the UN Charter, the embargoes can be imposed with certain UNSC is responsible for the regulation of conditions if the UNSC feels that they are armaments792. Since the UNSC’s main necessary. One of the recent cases of function is to ensure peace and security, it has imposition of an embargo was the imposition been given immense power to regulate the on Iran794. Embargoes can be on all nation movement of arms and other weapons. The states, or on certain states795. The UNSC also UNSC established a committee through imposed an arms embargo on the Central Resolution 1540. The main job of the African Republic in 2013 and it is still in committee is to prevent the proliferation of effect. In 2019, the embargo was amended in Weapons of Mass Destruction (WMD). The such a manner that the UNSC made it resolution is still in effect and the committee compulsory for the Central African Republic is still monitoring the proliferation of to get permission from the UNSC before WMDs. However, the resolution does not transferring arms796. cover SALW. As a matter of fact, there isn’t a single UNSC resolution that is dedicated to 792 795 Supra note 792.. Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Arms embargoes are very powerful in nature Firstly, the UN must try and include major and a violation of the same can lead to severe players like Russia and Iran in the battle consequences. However, the big question against illicit trade of SALW. If not done, that arises is whether embargoes can prevent then it can lead to severe consequences as the illicit trade of SALW. The answer is that these states are very influential in the arms the chances of embargoes preventing the market. Allowing them to not be subjected to illicit trade of SALW are lesser than the the regulation of arms trade will result in chances of them increasing illicit trade as allowing more than 50% of arms trade to states and non-state actors will try to resort continue in an unregulated manner. The UN to ways that keep the UNSC unaware of their must also make sure that it is able to take the trading activities. Moreover, there have been interests of major importers like India into cases in the past where states have blatantly consideration, so that even they can take part violated embargoes imposed on them. in the fight against the illicit trade of SALW. Hence, embargoes will not be of much use when it comes to preventing the illicit trade Secondly, the UN has to take the transfer of of arms, but they can be useful in the case of SALW to non-state actors very seriously. The licit trade. UN has to penalise states that transfer small arms to non-state actors (legally or illegally) CHANGES THAT MUST BE MADE TO without the consent of the UNSC or the IMPROVE THE INTERNATIONAL LEGAL Department of Disarmament Affairs. If FRAMEWORK AGAINST THE ILLICIT states fail to keep up with their commitments TRADE OF SALW in this regard, then the UNSC must be given the power to impose embargoes on states, As aforementioned, the UN has taken several which attach heavy liabilities upon violation. steps to try and prevent the illicit trade of Special emphasis must also be made to SALW. However, they are not complete and tracking non-state actors who illicitly trade are very fragmented in nature. Therefore, the arms and they must be made directly international community must bring about amenable to the jurisdiction of the some necessary changes to the current arms International Criminal Court. If possible, regime. punishments must also be prescribed for the same. CORPUS JURIS|292 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Thirdly, the UN must lay down a uniform weapon, then it is deemed as technology control system797. In the ATT, the UN transfer. It has been mentioned that states emphasises upon a national control system convey intellectual property which allows the and a control list which each party to the manufacturing of weapons domestically800. treaty must implement. This results in a lot of Even this should be brought under the ambit inconsistency and confusion. Moreover, of regulating arms trade. States must also be certain states will not be in a position to asked to seek the permission of the UNSC implement systems that are efficient as they before divulging information about how would lack the necessary expertise and SALW must be manufactured. resources that are required for the same. Therefore, the UN has to lay down and This must also be applied in the case of promote a model system that has to be divulging information to anyone from within treated as basic, and such a system must be the state. This is pertinent because if easy enough for all states to implement, information about how weapons must be irrespective of their capabilities. Nation states manufactured does reach non-state actors can be allowed to implement additional that have sufficient financial and human systems, while those states that cannot resources, then it can lead to severe implement other systems can continue with ramifications. It is well-established that terror the system laid down and promoted by the groups already have sufficient resources801. UN. Therefore, states must prevent technology transfer in the future, so that any It has also been noted that there is no law for advancements in the field of weaponry do the prevention of technology transfer not get disseminated to non-state actors. pertaining to SALW798. Technology transfer refers to the transfer of results that arise from States must also take major steps to protect research799. For example, if a state conveys and manage their stockpile. Though this the method and procedure to manufacture a already been prescribed by the 2001 797 Supra note 736. 800 Supra note 778. 798 Supra note 778. 801 ISIL Finances: Future Scenarios, Public-Private 799 Analytic Exchange Programme, Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in programme, states have not taken the matter However, the UNODC has pointed out that seriously. Looting of weapons can also lead Europe has witnessed terror attacks in which to illicit arms trade802. Quite obviously, non- terror groups have used reactivated state actors with violent motives will resort to weapons804. This is because states do not looting arms stockpile of a country. have mechanisms to dispose of deactivated weapons. If deactivated arms are not made An ideal example of this is what happened in inoperable, there are significant chances that Libya in 2016 when rebel groups looted arms they are reactivated once they reach the and ammunition from Libyan stockpile803. hands of non-state actors. By reducing the These weapons that are being looted are very number of deactivated arms, the chances of vulnerable to illicit trade by non-state actors. their illicit trade reduces. By ensuring the protection of their stockpiles, states can directly reduce the Next, the UN must also lay down uniform chances of non-state actors trading weapons laws for regulating the brokering of small that they get from looting stockpiles. States arms. These laws must be followed by all must also ensure that they manage their states. No uniformity can result in brokers stockpile as and when required. If a state feels operating in states that have lenient laws or that there is a surplus of weapons, then it in states that do not implement their laws must make either them obsolete or transfer properly. This will not serve the purpose as them to other areas where they can be of brokering illicit trade of SALW will still better use. continue. Moreover, states that are used for the purpose of brokering may face security States must also ensure that they have robust concerns. laws for the purpose of making deactivated arms inoperable. This has been casted as an Lastly, the international community must obligation under Article 9 of the 2001 convene to try and find a solution for tackling protocol. the issue of illicit trade on the dark web. The dark web is very tough to tackle as it is evasive and has international reach. 802 Supra note 740. 804 Ibid. 803 Supra note 740. CORPUS JURIS|294 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in However, the international community must mechanism is developed, then it will also be come up with a mechanism that helps in useful in preventing other crimes that take keeping a check on the dark web. If a place on/through the dark web. CORPUS JURIS|295 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in CONCLUSION The illicit trade of SALW by non-state actors is a major issue that the international community must tackle. Many states are getting weaker with each passing day as they are maimed by brutal violence caused by terror organisations and rebel groups. There are several ways to trade SALW illicitly, but there isn’t a strong and solitary legal framework that can assuage the fears caused by the illicit trade of SALW by non-state actors. Therefore, it is very pertinent that states act fast to ensure that no more lives are lost to non-state actors that get stronger by illicitly trading SALW. The present legal framework is fragmented and fails to cover certain important aspects which leads to a lot of inconsistency. In order to tackle the threat caused by the illicit trade of SALW, consistency is key. Moreover, special emphasis has to be given to non-state actors, as they are the ones that illicitly trade SALW and benefit the most out of them. If all these aspects and necessary changes are taken into consideration, then the world will be a safer and better place, free from constant brutality and violence. CORPUS JURIS|296 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in TAX AVOIDANCE AND ETHICAL DIMENSIONS -PARITA MASHRUWALA* ABSTRACT Taxpayers generally have to plan their tax affairs in order to develop their business strategy. Often, tax planning is encouraged and intended but sometimes it is not. In the public debate of taxation, fairness has become a prominent issue over the past few years. Attitude towards the payment of taxes is often contradictory. On one hand, taxes are like additional costs for the multinationals and on the other, they are an economic contribution to the society in which multinationals carry out their business activities. The present article tries to explain the ethical aspect of tax avoidance, keeping in view the role of multinationals in contributing their share in the national economy. In this article, moral dimension is reviewed especially in the context of tax laws while addressing the questions such as tax- paying morale of multinationals and whether countries play a role in aggressive tax planning of the multinationals. KEYWORDS: Taxation, Ethics, Morality, Globalisation, Fairness. * Student, 4th Year, BLS LLB, Pravin Gandhi College of Law. CORPUS JURIS|297 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in INTRODUCTION to exercise the scheme of ingenuity to pay lesser taxes to the exchequer. “It is a human failing that one would not like to part with one’s hard-earned money even by way of taxes, It is now a matter of common knowledge even though “taxes” are what one pays for that tax avoidance is legal while tax evasion is civilisation”, to quote the eminent jurist, Oliver illegal. While tax evasion is morally and Wendell Holmes, J. spiritually debasing as it involves cheating and double dealing, tax avoidance may often This reluctance, as Oliver Wendell Holmes, J. border on excessive obsession with a socially puts it, on the part of the taxpayers or unproductive exercise. Though tax avoidance assessee to pay the taxes makes heavy has to take place within the framework of demands on human ingenuity. However, law, a considerable expenditure of ingenuity discharge of tax liability involves an and labour goes into devising skilful devices important civic duty to be performed by an which minimise the tax liability. enlightened citizen and any amoral attitude towards the same can only be decried. INTERNATIONAL TAX AND MORALITY There is however a constant war between the Over the last few years, tax avoidance taxpayers and the tax collector. The strategies of the multinationals have become government has been making constant a source of international debate in today’s efforts to plug the loopholes by bringing globalised world. Reform of the basic amendments to the tax statues or by inserting framework of international taxation is the clubbing provisions which means that discussed throughout the world. The another person’s income is clubbed with that morality of multinationals with respect to tax of taxpayers’ income or a deeming provision paying is being questioned. In recent years, that is a section or clause of a statute or questions regarding contribution of fair share regulation or any other legal instrument that of taxes by the corporations to the resident states how something is to be treated or countries are raised time and again. The regarded. On the other hand, the taxpayers debate regarding the morality of search loopholes and find a conversant way multinationals paying taxes came to full force when the global financial crisis hit countries CORPUS JURIS|298 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in hard, as a result of which austerity measures systems worked. There has been a huge were adopted.805 public outcry over the tax practices of multinationals such as Google, Starbucks and One can imagine a situation when there is a Amazon.807 grave global recession resulting in less purchasing power in the hands of the people There is a high-profile example of a member and subsequently invoking public sentiment of the UK parliament questioning the against the multinationals engaged in taxpayer morale of a multinational. international tax planning to contribute their fair share of tax to its jurisdictional authority. The Public Accounts Committee, UK, was Again, a situation where tax revenue is lower, chaired by Margaret Hodge, a member of to begin with, due to the economic recession, parliament of the United Kingdom. In a clip new tax planning opportunities for from an interview, where an interview was multinationals will be greeted with scepticism done with the representatives of American not only by governments but by the corporations Google, Amazon and Starbucks concerned politicians, taxpayers, NGO’S, in 2012, she expresses her concerns about the media and other stakeholders. amount of taxes paid or rather how little taxes are paid by Google in the UK. She Tax avoidance is not just an economic issue, remarked how the people of the United but a moral one, that goes to the heart of Kingdom use Google day in and day out public trust and confidence in our contributing towards Google’s business and government and institutions. Tax is a basic further added that she uses Google, and that part of social contract.806 After the global all of them (Committee Members) around crisis, people got involved and found it unfair the table use google. They contribute towards and incomprehensible about the way tax the company’s profits and that the fact that 805 Thomas Hemmelgarn and Gaëten Nicodème, ‘The 807 Vanessa Barford & Gerry Holt, ‘Google, Amazon, 2008 Financial Crisis and Taxation Policy’, SSRN, Starbucks: The rise of 'tax shaming', BBC NEWS (October 21, 2020, 11:25AM), MAGAZINE, (October 22, 2020, 10: 16 AM), https://papers.ssrn.com/sol3/papers.cfm?abstract_I https://www.bbc.com/news/magazine-20560359. ; d=1546973. Also see, an excerpt from an interview, which the 806 Margaret Hodge, ‘Trust in tax, not its avoIdance’, Public Accounts Committee of UK parliament had OECD FORUM, (October 21, 2020, 12:00 PM), with representatives of American corporations https://www.oecd.org/forum/oecdyearbook/trust- Google, Amazon and Starbucks in 2012’, in-tax-not-its-avoIdance.html. https://www.parliamentlive.tv/Event/Index/ab52a9 cd-9d51-49a3-ba3d-e127a3af018c. CORPUS JURIS|299 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in they see no proper or fair contribution from Two people, two solid arguments. And yet google to corporation tax, is sad. Besides she the video ends with Margaret Hodge puts forth that she, like many others, feel that accusing Google of being immoral. The companies benefitting from a country’s aforementioned clip of the UK’s Public consumer market should also pay their fair Accounts Committee raises important share of tax in that country. questions. Is it correct to state that multinationals are acting immoral? What A reasonable thought, one would assume. actions can be taken by multinationals with Withstanding the above, Matt Brittin regard to such immoral behaviour. The issue defended Google's position expressing that is that the world’s biggest multinational like any company, they are required to do two conglomerates manage to earn trillions of things- one, to play by the rules and another dollars around the world, yet many seem to to manage their costs efficiently, in order to pay no tax anywhere in essence.808 This is satisfy their shareholders. framed as a justice issue because it shifts the burden of taxpaying to those who cannot Margaret Counter by asking Matt, similarly avail themselves of sophisticated tax “Google will minimise tax even if it is unfair to planning strategies. british taxpayers”? FAIRNESS AND TAXATION IN A Responding to the question, Matt replies GLOBALISED WORLD: that, “ it is not unfair to the British taxpayers, we pay all Society now requires multinationals to pay a the tax you require us to pay. In the UK, we've paid fair share of taxes to the countries in which 6 million taxes last year.” To which Margaret they carry their business809. But the question replies, “yes maybe we are not accusing you of being is what is a fair share? The concept of fair illegal, we are accusing you of being immoral.” share is not clearly defined. Nevertheless, the 808 Allison Christians, ‘AvoIdance, Evasion, and Taxpayer &text=This%20Essay%20fleshes%20out%20the,spa Morality’, JOURNAL OF LAW AND POLICY, ce%20between%20these%20two%20poles. (October 24, 2020, 05:32 PM), 809 Prof. Dr. SigrId J.C. Hemels, ‘Fairness and taxation in https://openscholarship.wustl.edu/law_journal_law_ a globalized world’, SSRN, (October 25, 2020, 01:40 policy/vol44/iss1/8/#:~:text=Washington%20Univ PM), ersity%20Journal%20of%20Law%20%26%20Policy https://papers.ssrn.com/sol3/papers.cfm?abstract_I d=2570750. CORPUS JURIS|300 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in concept has a moral aspect, as not paying the law and there should be no place for your fair share means that someone else has something known as a moral dimension. to pay for you. It is very easy to say that multinationals Taxes paid in a country are used to provide should pay their fair share, but it is very services to the residents. For example, health difficult to define what a fair share is. The care, education, building of social and principle of fairness and the moral standards economic infrastructure of the country etc. If are a bit subjective, changing from time to the multinationals do not contribute their fair time, person to person and even country to share in taxes, the service level of the country. Thus, it is very difficult to define government decreases. Tax planning what is moral or immoral, fair or unfair, opportunities for multinationals significantly ethical or unethical. What may be legal may reduces tax revenues for the countries. But not necessarily be moral or fair and vice Multinationals operates within the confines versa. of the law as international tax planning is not illegal or unlawful. It would be more Thus, tax avoidance bordering an obsession appropriate to say that aggressive tax is a moral problem and depends on the planning may be immoral.810 Every company degree of enlightenment and moral fibre of a will claim that it complies with the law, but community. There is no legal sanction for any the argument is that they need to go even action but merely a social sanction. It may further than that, perhaps comply with the therefore go a long way in checking the evil spirit of the law.811 There is a difference which has eaten into the vital of the national between a literal reading of the law and spirit economy. of the law. If the law itself is clear, companies should be able to rely on the literal reading of 810 Reijo Knuutinen, ‘Corporate Social Responsibility, 811 Piergiorgio Valente, ‘Spirit of Tax Law and Tax (Non- Taxation and Aggressive Tax Planning’, ) Compliance: Reflections on Form and Substance’, RESEARCHGATE, (October 25, 2020. 01:20 PM), SQUARESPACE, (October 25, 2020, 03:40 PM), https://www.researchgate.net/publication/27790796 https://static1.squarespace.com/static/55a50b8ee4b 7_Corporate_Social_Responsibility_Taxation_and_A 00f4e23b93618/t/5a847459419202c80a03fdd0/1518 ggressive_Tax_Planning. 629982267/2018_IBFD_ET_Spirit+of+the+Law_et _2018_01_int_1.pdf. CORPUS JURIS|301 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in SHOULD COUNTRIES PLAY A ROLE IN TAX to run the moral standards. But it is quite PLANNING ACTIVITIES OF unclear as to if the corporations have met MULTINATIONALS? legal standards, then how do moral standards actually read. Where does one find these Not only companies but countries should moral standards? also act morally. The moral standards which countries impose on taxpayers stand a little It is unethical for the countries to change different from the standards they impose on domestic tax law in such a way to attract them. foreign investment. Few instances of countries which effectively permit companies The countries are actually assisting to engage in tax planning activities at the multinational corporate taxpayers to engage expense of the revenue of other countries are in aggressive tax planning structures. They US’s check-the-box rules, US’s restricted are doing so by simply not amending the rules on control foreign companies, the way rules the way they should do in order to that Holland has been dealing in past years increase the tax collections for their country. with hybrid loans etc.813 Every country wants The most common example are tax haven to have an interesting as well as inviting countries. Tax haven countries are those investment climate. There is nothing wrong countries which levy little or no corporate with that as long as there is a level playing income tax on multinationals within their field. It must be a fair competition and not a jurisdiction. Typically, they are small harmful one. For instance, Interest countries with strong financial and deduction. Countries, in order to attract supporting service industries.812 investment from multinationals, do not mind giving a little extra incentive through the It can be said that corporations have to adopt interest deduction. two tests. First to meet all the rules of domestic tax laws and treaties and after that 812 OECD, ‘Harmful Tax Competition: An Emerging Global Issue’, OECD PUBLISHING, (October 26, 813 Jane G. Gravelle, ‘Tax Havens: International Tax 2020, 02:33 PM), https://read.oecd- AvoIdance and Evasion’, FAS ORG, (October 26, 2020, ilibrary.org/taxation/harmful-tax- 02:50 PM), competition_9789264162945-en#page32. https://fas.org/sgp/crs/misc/R40623.pdf. CORPUS JURIS|302 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in It can be safely concluded by saying that, that pattern which will best pay the Treasury; there rather than putting moral pressure on is not even a patriotic duty to increase one’s taxes”. multinationals, the countries should take their own responsibilities and change the The same sentiment is found in English rules with respect to tax collection, in order common law and has accordingly been to improve a country’s investment adopted in the jurisprudence of other atmosphere. commonwealth countries. Thus, in IRC v. Duke of Westminster815, Baron Thomas JUDICIAL VIEW ON TAX AVOIDANCE Tomlin wrote: The above-mentioned observations have “Every man is entitled if he can to order his affairs triggered considerable rethinking about the so as that the tax attaching under the appropriate ethics of tax avoidance. Since the matters Acts is less than it otherwise would be. If he succeeds pertaining to tax avoidance involve legality of in ordering them so as to secure this result, then, particular transactions, the objective behind however unappreciative the Commissioners of Inland it and methodology adopted would be Revenue or his fellow taxpayers may be of his interesting to discuss the reactions and ingenuity, he cannot be compelled to pay an increased attitudes of various courts to the problem of tax”. tax avoidance within the framework of law at different times. It was felt that there must be some limit to the devices which courts can put up with in In the celebrated case of Gregory V. order to defeat the fiscal intentions of the Helvering814, Hon’ble Supreme Court of the legislature. A very significant departure from United States held as follows: the Westminster’s Principle was made in Ramsay vs. Inland Revenue “Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose 814 Gregory v. Helvering, 69 F.2d 809, 810 (2d Cir. smallest obligation, moral or other, so to arrange his 1934). legal relations to his business or to his property as to 815 Duke of Westminster v. IRC, (1936) AC 1; Also enable the Inland Revenue to put the largest possible See Ayrshire Pullman Motor Services and Ritchie v. shovel into his stores.” IRC, [1929] 14 D.T.C. 754, 763 (Can.) The court went on to state, “No man in this country is under the CORPUS JURIS|303 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Commissioners816. It was felt in that case commercial affairs that charge of tax is that even though the doctrine that courts distributed is not prohibited. The taxpayer could not go behind a given genuine may resort to a device to divert the income document or transaction to some supposed before it accrues or arises to him. underlying substance was a cardinal principle, Effectiveness of the device depends not it must not be overstated or over- extended. upon consideration of morality but on the operation of the Income-Tax Act, 1961. It was lord Simon who observes in the case Legislative injunction in taxing statutes may of Latilla v. Inland Revenue not, except on pain of penalty, be violated Commissioners817 as follows: but it may lawfully be circumvented. “There is, of course, no doubt that these are within However, the Supreme Court of India in Mc their legal rights (in avoiding taxation) but that is Dowell’s case819 clearly departed from the no reason why their efforts or those of the above views and expressly disassociated itself professional gentlemen who assists them in the with the earlier observations of the Supreme matter, should be regarded as a commendable Court echoing the sentiments of exercise of ingenuity or as a discharge of the duties of Westminster’s principle. The Court felt that good citizenship On the contrary, one result of such there was as much moral sanction behind methods, if they succeeded is of course to increase pro taxation laws as behind any other welfare tanto the load of tax on the shoulders of the great legislation and avoidance of taxation was not body of good citizens, who do not desire to or do not ethical. know how, to adopt this manoeuvre.” In the view of the Court, the proper way to In CIT V. A. Raman & Co.818, the Supreme construe a taxing statute while considering a Court of India followed the dictum of the device to avoid tax was not to ask whether Inland Revenue Commissioner V. Duke of the provisions should be construed literally Westminster’s case. It observed that or liberally, nor whether the transaction was avoidance of tax liability by so arranging not unreal and not prohibited by the statute, 816 Ramsay v. Inland Revenue Commissioners, (1982) 818 CIT v. A. Raman & Co. (1968) 67 ITR 11. AC 300. 819 MCdowell and Co. Ltd. v. ITO (1985) 154 ITR 148. 817 Latilla v. Inland Revenue Commissioner, (1943) AC 377. CORPUS JURIS|304 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in but whether the transaction was a device to part of tax planning. It is wrong to say that it is avoid tax and whether the transaction was honorable to avoid payment of tax by dubious such that the judicial process might record its methods. It is the obligation of every citizen to pay tax approval to it. honestly without resorting to subterfuges”. Further, Hon. The Supreme Court observed The foregoing paragraphs have broadly that “Tax planning may be legitimate if it is within indicated the attitude of the judiciary to the the framework of law, but colorable devices cannot be problems of tax avoidance. CORPUS JURIS|305 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in CONCLUSION Tax avoidance thrives on loopholes in the tax statute and tax planning, which is a euphemistic term for skilful tax avoidance, and has almost become a national pastime, often proving socially counter-productive. While a legitimate attempt to reduce one’s tax liability within the four corners of the law is not frowned upon, excessive obsession with sophisticated forms of tax avoidance has become the consuming spot of the rich. Ethical issues regarding tax avoidance are very subjective in nature. However, it can be concluded that not only corporations, but countries should also act morally to avoid tax planning activities. Moreover, corporations can engage in tax planning activities, but aggressive tax planning can be immoral and cause loss of revenue to the resident country. CORPUS JURIS|306 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in THE IMPACT OF HUMAN RESOURCE MANAGEMENT ON PERFORMANCE AND EFFICIENCY IN CORPORATE LAW FIRMS -SHILPI S. GAUTAM* AND SARVJEET SINGH LALANA* ABSTRACT Human Resource Management (HRM) is a very important input in any organization and many goals such as dispute resolution can be achieved with the help of proper management of human resources. The put sources of HRM are done through feedbacks and control. HRM includes the plan and arrangement of a situation inside groups and organizations so the people of the group or the organization can accomplish their targets by using both human and material resources. Human resource management is one of the useful areas of any organization or company. The others are finance, advertising, production, research work, and development. Human resource management includes the workforce management, mechanical relations of the organization and employee welfare management. Today, most organizations like to utilize the term Human Resource Management (HRM) department to assign such functions as enrollment, area, position, acceptance, direction, preparing and advancement, wage organization, and development. Today, Human Resource Management has become a very important tool for achievement. For an association to succeed, it needs most importantly breakeven, when all-out income rises to add up to cost and even to have units produce past breakeven point just as endure and still perform well. In order to perform well, it needs to accomplish its destinations and objectives. This paper focuses on how better Human Resource Management organizations especially the law firms can be improved. This paper will further analyze the effects of Human Resource Management (HRM) in corporate firms and its performance based on research studies and the need of Human Resource Management (HRM) in corporate firms. KEYWORDS: Human Resource Management, Dispute Resolution, Organization, Employee and Corporate Firms. * Student, 4th Year, BSW LLB, Gujrat National Law University. * Student, 4th Year, BSW LLB, Gujrat National Law University. CORPUS JURIS|307 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in BACKGROUND of an organization or business. It involves premeditated and comprehensive approach The term ‘human resource’ was first coined for managing employees along with in the 1960s, when notions like managing the workplace culture and the organizational behavior, motivation, environment of the organization. selection assessments began to take shape and the value of labor relations came into the The function of HR experts is to guarantee picture as well820. Human resources that an organization's most significant management is an umbrella term that is resource i.e., its human capital is being utilized to portray the administration and sustained and upheld through the creation development of the representatives in an and the board of projects, arrangements and association. It involves all the necessary systems, and by cultivating a positive things from recruiting to dispute resolutions workplace through successful worker that tend to be important for managing business relations. employees and achieving success. The idea driving human resources Human Resources Management (HRM) management is that representatives who are includes major areas of an organization dependent upon powerful human resources, which includes the following: the board can all the more viably and beneficially add to an organization's general • Staff course along these lines guaranteeing that • Recruiting benefits and organization’s objective and goals are compensation practiced. The present human resources • Training supervisory crew is liable for substantially more than the conventional workforce or • Relations among labor and employee regulatory errands. Rather individuals from a • Organizational development human resources supervisory group are more centered around increasing the value of the Human resource management involves all key use of workers and guaranteeing that that can be done to improve the effectiveness 820 What is Human Resource?, AM) https://www.humanresourcesedu.org/what-is- HUMANRESOURCESEDU (Dec. 11, 2020, 4:50 human-resources/. CORPUS JURIS|308 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in representative projects are affecting the depression and suicide with it which are business in certain and quantifiable normal among attorneys and 44 % of the manners821. advocate suffer from the same as shown by a survey conducted by the American Bar So, based on the above writings, it can be Association said they would not prescribe the concluded that Human Resources calling to a youngster822. As per the research Management can affect an organization on a conducted by the National Institute of very large scale and also contributes to the Mental Health823, it was observed that success and failure of an organization. While depression is the most likely trigger for talking about improved Human Resource suicides. According to a study824, it was seen Management bringing efficiency into the that “lawyers, as a group, are 3.6 times more likely organization, this paper we will focus on a to suffer from depression than the average person”. particular section of the organization and that Under another study, it was observed that will be a corporate law firm. “lawyers manifested clinical levels of depression, anxiety, phobia, and interpersonal sensitivity 5 to 15 IMPACT ON PERFORMANCE AND times more common than the general population”825. EFFICIENCY OF LAWYERS There are some reasons listed down for A career of an attorney is one of the most depression and suicide. searched after callings and there are to be sure numerous prizes on the off chance that 1. Stress you seek after one. However, filling in as a Cutoff times, charging pressures, customer lawyer has a few downsides also. Along with requests, extended periods, evolving laws, the benefits of being an advocate or working and different requests all join to make the act hard in a firm the advocacy also brings of law one of the most distressing positions 821 What is Human Resource?, 823 Sally Kane, Careers, THE BALANCE CAREERS (Dec. HUMANRESOURCESEDU (Dec. 11, 2020, 4:50 11, 2020, 4:45 AM), AM) https://www.humanresourcesedu.org/what-is- https://www.thebalancecareers.com. human-resources/. 824 Sally Kane, Careers, THE BALANCE CAREERS (Dec. 822 Brian S. Clarke, Coming Out in the Classroom: Law 11, 2020, 4:45 AM), Professors, Law Students and Depression, 64 JOURNAL OF https://www.thebalancecareers.com. LEGAL EDUCATION 403, 415 (2015). 825 Brian S. Clarke, Coming Out in the Classroom: Law Professors, Law Students and Depression, 64 JOURNAL OF LEGAL EDUCATION 403, 415 (2015). CORPUS JURIS|309 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in out there. Toss in rising business pressures, infrastructure on the field. From advancing legitimate advances, and climbing authoritative archive professionals to virtual graduate school obligation and it's no big law workplaces and self-improvement surprise attorneys are stressed. The stress and legitimate sites, the present attorneys face requests for specializing in legal matters have rivalry from an assortment of non-legal filled significant levels of professional counselor sources. It is not necessarily the disappointment among individuals from the case that every one of these sources is bar. Rising outstanding burdens and fundamentally respectable or that they can contracting staffs are converting into more convey similar outcomes that a prepared and work hours for attorneys than any other time taught lawyer can. In any case, they're out in recent memory. The requests of worldwide there and they do occupy numerous potential law practice additionally imply that a few customers from "genuine" lawyers827. attorneys must be accessible to customers nonstop. 3. Innovation Innovation has changed the act of law and The present attorneys work longer and similar to it or not, legal advisors must get harder and 50 or more hour work weeks are capable in a wide scope of innovation stages. not under any condition extraordinary. A These range from record audit and the serious situation has constrained attorneys to practice devices to spreadsheets, invest more energy in customer advancement introduction, and charging programming. and business the executives’ exercises Furthermore, even as legal counselors notwithstanding charging hours. Numerous become more technically knowledgeable, the attorneys’ gripe of an absence of work-life market pattern toward commoditization balance826. takes steps to swallow occupations as legal advisors are supplanted by innovation to 2. Changing Legal Paradigms convey legitimate administrations all the The act of law is changing significantly, and more inexpensively and proficiently. attorneys no longer have a restraining 826 Brian S. Clarke, Coming Out in the Classroom: Law 827 Sally Kane, Careers, THE BALANCE CAREERS (Dec. Professors, Law Students and Depression, 64 JOURNAL OF 11, 2020, 4:45 AM), LEGAL EDUCATION 403, 415 (2015). https://www.thebalancecareers.com. CORPUS JURIS|310 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in It is anything but a pattern — the employees are expected to do more with less. redistributing of lawful work to unfamiliar This in turn would certainly lead to nations is a financial reality. As more employees thinking that their well-being and legitimate work is sent to low-wage health are secondary and would constantly be workforces abroad or territorial conveyance in competition with other employees to habitats inland, numerous conventional legal outperform each other as they would be advisor occupations are being dissolved or under strict scrutiny and danger of losing uprooted through and through828. their job. In such a situation the importance of Human Resource personals cannot be 4. Changing the nature of work understated, it is a great chance for them to Changes are a rule of nature. Everything is exploit this fact to eke out the maximum of bound to change if it wants to be relevant and their employees. They need to adapt to the survive in today’s world. Changes could be circumstances and motivate them to the measured in terms of who is working, where, fullest, retain, and attract them for the benefit when, and how. of the firm829. The rise of information technology and Hence, it becomes interesting to see how advances in communication technology through Human Resources Management a escalated due to pandemic has proven to be change can be brought to these corporate the biggest catalyst of change in the legal firms and in what ways it can affect the well- field. Well established law professionals are being of not only the people of the now in a position where they need to learn to concerned firm but, of the firm as well. At operate in a virtual courtroom as work from long last, researches have recommended that home is the new normal. Human Resource practices may improve firm work by heightening work, expanding Another thing which this pandemic brings the offloading of assignments down the with it is economic stagnation and during progression and in general, leaving workers such time, it is a common work practice that 828 Sally Kane, Careers, THE BALANCE CAREERS (Dec. 829 Tina H.P. Kowalski & Wendy Loretto, Well Being 11, 2020, 4:45 AM), and HRM in the changing workplace, 28 THE https://www.thebalancecareers.com. INTERNATIONAL JOURNAL OF HUMAN RESOURCE MANAGEMENT 2229, 2250 (2017). CORPUS JURIS|311 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in without adequate opportunity to do their work environment, his efficiency and work inside normal working hours830. performance would be better and this would help the firm itself832. Research also pointed RELATIONSHIP BETWEEN HRM AND out that though well-being improves which WELL-BEING AND PERFORMANCE OF aspects of well-being are related to the THE EMPLOYEES performance, their research has come out to the conclusion that different aspects of well- This topic is rather controversial if we look being amount to different outcomes in into it as one may ask why organizations performance. Understanding the wellbeing would care to get involved in the wellbeing of of the employees is also not an easy task, their employees. Researches showing the there are ample challenges for the Human connection between Human Resource Resource department for doing so, the Management and the well-being of the sustainability of wellbeing being the biggest employees can now be traced back to one. decades. Although there is a lot of research that shows the relation between Human Changes in the workplace from time to time Resource Management and well- being of the poses a challenge for Human Resource in employees, the research also shows the maintaining the work environment which triadic relationship between Human would guarantee the well-being of the Resource Management and efficiency and employees. Briskly growing technological performance are rather scarce831. development is an example of how the way of doing work has changed and the ‘The mutual gain’ point of view is working interpersonal relationship between employer towards strengthening the relationship as it is and employee is hard to manage in the era of a win-win situation for firms as well as work from home. In addition to excessive employees, it works on a simple philosophy workload in the law firm and long hours of that if an employee is happy and in a good 830 Argyro Avgoustaki, Work Uncertainty and Extensive 831 Tina H.P. Kowalski & Wendy Loretto, Well Being Work Effort: The Mediating Role of Human Resource and HRM in the changing workplace, 28 THE Practices, 69 THE JOURNAL OF WORK AND POLICY 657, INTERNATIONAL JOURNAL OF HUMAN RESOURCE 680 (2016). MANAGEMENT 2229, 2250 (2017). 832 Ibid. CORPUS JURIS|312 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in grinding, toxic leadership and bullying by performance. Another school of thought seniors are also very common833. through research implies that Human Resource does not affect the performance of These more full-scale territories for research the employees rather only impact some are expected to supplement the more mediator variables which subsequently individualistic intercessions, for example, impact835. versatility preparing and care that are right now effective across both scholastic and FACTORS AFFECTING THE professional spaces. Adopting a more PERFORMANCE OF EMPLOYEES IN A comprehensive strategy to represent well- CORPORATE LAW FIRM being that incorporates the individual and firms and logical elements can serve to Researches and studies of the originators of introduce a more exact image of the work exertion are more difficult to find and kaleidoscope of variables that impact the have would in general zero in on large scale well-being and may likewise serve to move level components, for example, competitive the dissemination of duty regarding well- pressures, technological changes, and being all the more equally834. declining unionism. Such factors are positively pertinent to our comprehension of There are two schools of thought regarding the sources of work effort. However, micro- Human Resource management and level factors conceivably have a considerably performance. One advocates that it has a more immediate effect on work effort. direct effect on the output of the employees while the other argues that the impact is not In particular, earlier proof proposes that the that direct and rather has an indirect effect. A execution of human resources (Human direct theory proposed practices such as Resource) rehearses related to different teamwork, employee training, and models of superior administration might be performance contingency-incentive related to expanded work effort. compensation are proved to improve their Simultaneously, others contemplate having 833 Ibid. INTERNATIONAL JOURNAL OF HUMAN RESOURCE 834 Tina H.P. Kowalski & Wendy Loretto, Well Being MANAGEMENT 2229, 2250 (2017). and HRM in the changing workplace, 28 THE 835 Ibid. CORPUS JURIS|313 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in underscored the part of such practices in individual execution just as through higher getting ready representatives to work all the representative duty or contribution Although more productively and improve the nature of this point of view accepts that exhibition work. According to this elective viewpoint, gains are accomplished through sure that these practices of Human Resource will channels, an elective viewpoint proposes that bring about expanded work exertion is less the additions could come to the detriment of clear. Such observational proof focuses on the worker, through escalated work and "the the requirement for the ID of other pertinent executives by stress". Undoubtedly, in miniature level precursors of work effort just worker focused studies, Human Resource as a more careful comprehension of the practices have been connected to such results connection between Human Resource as raised degrees of stress, burnout, and practices along worker work effort. representative turnover. Human Resource practices are likewise a tireless test to Aside from work vulnerability, firms' accomplishing a sound work-family balance utilization of certain Human Resource since they may remove time either from practices may likewise invigorate more representative family obligations or from significant levels of work exertion. These time accessible to spend with the family836. practices regularly include elective work plan, for example, collaboration and job turn, 1. Equal opportunity participatory systems, and some type of One of the toughest tasks for Human practice pay; in the writing, these have Resource is to manage a work environment frequently been depicted as superior where equality among opportunities is more administration rehearses. than just a slogan. Traditionally women in the law profession are seen as one who cannot Earlier work has contended that such make crucial decisions and are not efficient in practices, received separately or as a pack, can their work. Apart from discrimination against improve firm efficiency. This positive nexus women, nepotism is a practice prevalent in is generally clarified through the capacity, law firms. Opportunities arise for those who inspiration, and opportunity model of belong to privileged families rather than the 836 Argyro Avgoustaki, Work Uncertainty and Extensive Practices, 69 THE JOURNAL OF WORK AND POLICY 657, Work Effort: The Mediating Role of Human Resource 680 (2016). CORPUS JURIS|314 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in person deserving the opportunity837. When the tales, connections, and practices of the employees see that the hard work and others. performance in a job will one day pay off and one day they will be able to progress through Aggregate qualities use is an eminent wonder the hierarchy to reach their goals in a law firm since it begins in the qualities utilization of which is a very competitive environment, it individual colleagues and is enhanced by their would encourage them to work more teamwork’s related to distinguishing, efficiently. depending on, and organizing qualities in the group corresponding to situational requests. 2. Collective and individual strength This infers that the qualities utilization of awareness programs individual colleagues triggers dynamic This means to share information and association measures that, over the long haul, knowledge that colleagues have about who leading to the foundation of aggregate has which qualities or what strengths. It qualities use at the group level. It additionally allows the group members to decide the suggests that aggregate qualities use is to overall ability of other group members some part subject to singular qualities use. through social relationship measures that Singular qualities that are not utilized or are permit them to create a view of the exhibition even stifled are probably not going to be level rankings inside the group team. perceived and known by others. At the point Individuals can find out about the skill of when people don't utilize their qualities in the other colleagues by finding out about their group since they consider it unseemly proper capabilities or by trading data with considering the hierarchical culture, the them and also, learning about the qualities of social standards of the group or the colleagues is doable by improving colleagues' undertaking requests, they may organize overall mindfulness, improving them fitting to the detriment of their equipped for qualities spotting, alluding to authenticity838. the deliberate perception of qualities inside 837 Anthony Igwe, J.U.J Onwumere & Obiamaka P. 838 Marriane V. Woerkom & M.C. Meyers, ConsIdering Egbo, Effective Human Resource Management as a Tool for strengths use in organizations as a multilevel construct, Organizational Success, 6 EUROPEAN JOURNAL OF HUMAN RESOURCE MANAGEMENT REVIEW (2019). BUSINESS AND MANAGEMENT 210, 217 (2014). CORPUS JURIS|315 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in IMPROVED HUMAN RESOURCE SHRM can be portrayed as "the case of MANAGEMENT ALSO IMPROVES THE masterminded Human Resource associations EFFICIENCY OF THE FIRMS. and activities intended to enable a relationship to achieve its targets”839. Strategic Human Resource Management Dynamically, the field has accentuated the (SHRM) research progressively centers on significance of zeroing in on whether and the performance effects of human resources how "frameworks" or "packs" of Human (HR) frameworks as opposed to individual Resource practices mutually assist Human Resource practices. Specialists will in associations with accomplishing key general concur that the attention ought to be objectives, as opposed to on single Human on frameworks since representatives are at Resource rehearses exclusively. A Human the same time presented to an interrelated Resource framework can be characterized as arrangement of Human Resource practices a mix of Human Resource practices "that are instead of single practices each in turn, and upheld to be inside steady and strengthening the impacts of Human Resource practices are to accomplish some all-encompassing probably going to rely upon different outcomes”840 practices inside the framework. Exploration to be sure consistently shows a positive Methods of Human Resource relationship between (expansive) Human Management Resource frameworks and execution and the The presentation and productivity of the firm possibility of complementarities or or any sort of association can be improved by collaborations between practices in a Human giving the workers of the concerned Resource framework is generally association an equivalent chance to settle on acknowledged as the applied rationale behind compelling choices. The HRM firm the viability of Human Resource performance interdependence is divided into frameworks. two perspectives841: 839 Corine Boon, Deanne N. Den Hartog & DavId P. 841 G. SarIdakis, Y. Lal & C.L. Cooper, Exploring the Lepak, A Systematic Review of Human Resource Management relationship between HRM and firm performance: A meta- Systems and Their Measurement, JOURNAL OF analysis of longitudinal studies, HUMAN RESOURCE MANAGEMENT (2019). MANAGEMENT REVIEW 87, 96 (2017). 840 Ibid. CORPUS JURIS|316 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Firstly, a macro focus concerning the The universalistic or best-practiced approach standard or overall set of Human Resources and the possible approach. The two points of Management practices and firm view pressure that Human Resources can performance. This strategy suggests a system give an economical upper hand to firms. The of focused view of Human Resources best-practice point of view, which Management that considers the overall overwhelmed the early Human Resources formation or combination of Human Management research in the last part of the Resources Management practices as well as 1990s, stresses the added substance and of policies despite searching the effecting of positive effect of various prescribed individual Human Resources Management procedures: the more such arrangements and practices on the employees of the firm or the practices are utilized, the better the business firm performance itself. execution. Secondly, a strategic outlook on Human In other words, paying little mind to the Resources Management that underlines the setting, the authoritative exhibition is particular ‘fit’ between various -Human supposed to be upgraded when firms receive Resources Management practices along with best practice. This methodology has the firm’s competitive advantage. This view developed accordingly to grasp the expansive outlook the arrangement of various Human term ‘High Performance Work Practices’ Resources Management practices focusing (HPWPs) and all the more as of late on their strategic goal and pressures that presented by Appelbaum in 2000 and Purcell Human Resources practices have to and Hutchinson in 2007 known as the complement each other if their intended goal Ability, Motivation, and Opportunity (AMO) of firm performance wanted to be achieved. model. Knowledge, skills, and abilities (KSAs) are improved through integrated and Firm execution research has applied two complementary HPWS of the employees. It distinct methodologies of SHRM, which are also motivates and encourages the employees mentioned below842. to invest extra flexibility, time, and effort. 842 G. SarIdakis, Y. Lal & C.L. Cooper, Exploring the analysis of longitudinal studies, HUMAN RESOURCE relationship between HRM and firm performance: A meta- MANAGEMENT REVIEW 87, 96 (2017). CORPUS JURIS|317 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in KSAs are progressive through practices like than a solitary Human Resources mediation training and personal growth, work plan, and Integrated, corresponding HPWP pay (for example capacity upgrading frameworks are planned not exclusively to practices); while practices related to impetus improve the skills of the workforce, yet in installment, execution-related prize, addition to urge and inspire them to utilize adaptable work routines, support programs, optional time and exertion to perform data sharing and circumspection and assignments. For instance, Human Resources authority at work are sent to help inspiration. practices such as enlisting and choice, Furthermore, Human Resources preparing and self-awareness are intended to Management practices may likewise influence upgrade the abilities of the workforce, while hierarchical execution by expanding Human Resources mediations, for example, adaptability and effectiveness through their motivation installment, practices related effect on firms' inner social structure843. prize and evaluations are principally intended to propel representatives to remain and There are two standards of exact exploration inspire additional exertion at work844. examining the connection between HPWPs CASE STUDIES OF ERNST & YOUNG and firm efficiency in SHRM writing. One spotlights on the assessment of the Ernst & Young is one of the biggest firms in immediate connection between singular assurance, audit, tax, financial, and business practices and firm practices, while the services. Having their operation on such a different coordinates its endeavors towards huge scale in multiple countries requires recognizing the impacts of an assortment of them to have the right people available with individual HPWPs. The last arranges its them so that they can deal with every examination inside the universalistic, 'more is situation at any given time, anywhere around better', viewpoint and contends that the the world and this requires a lot of skill. This utilization of a mix of interrelated, commonly means that they need to hire and train people fortifying Human Resources Management as quickly and as efficiently as possible. intercessions ought to affect firm practices 843 G. SarIdakis, Y. Lal & C.L. Cooper, Exploring the analysis of longitudinal studies, HUMAN RESOURCE relationship between HRM and firm performance: A meta- MANAGEMENT REVIEW 87, 96 (2017). 844 Ibid. CORPUS JURIS|318 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in This requires a blend of several methods and professional stability, Ernst and Young programs that can be properly custom-made makes an alternate pitch by zeroing in on and customized to address each individual's giving special vocation encounters and all- extraordinary needs, which thus are planned encompassing improvement to its workers to the business requirements. Diverse through its program, Ernst and Young and operational locations necessitate that Ernst You. The three mainstays of the company's and Young's people strategy845 is driven ability improvement structure are Learning, consistently across the association through a Experiences, and Coaching. very much characterized, standardized system. Together they give representatives the information, aptitudes, and capacities they The firm uses a method they call ‘IDEA’ should have the option to take responsibility which stands for Include, Develop, Engage, for vocations. The point is to have a one-of- and Attract a talented workforce. The most a-kind improvement plan that helps shape basic practices that Ernst & Young the vocation of every individual depending influences as its upper hand are those which on their latent capacity, encounters, and center on representative development yearnings with regards to the business needs through its ability improvement structure. of the firm. This structure centers around singular advancement as well as on making a Ernst and Young and You is a program remarkable vocation experience for each where there is a mutual gain for the firm and worker and in the improvement of pioneers the employees as this program allows the inside the association. individual to reach their potential and in turn, the employees pay off by committing their In a situation where firms are attempting to future to the firm. They also believe in the draw in and hold individuals giving them development of leaders internally and take seriously significant compensations, pride in the fact that almost all their entire inventive approaches, top tier foundation, senior leadership consists of individuals who 845 SHRM India, Best Workplaces 2012: Case Studies on forecasting/research-and- HR Best Practices, (Dec. 12, 2020, 11:15 AM) surveys/Documents/SHRMIndiaBestworkplaces.pdf https://www.shrm.org/hr-today/trends-and- CORPUS JURIS|319 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in have been promoted and developed between Human Resources Management and internally rather than hire an individual from firm performance where it was observed that outside. there has been a significant development in principle and examination about Human A good number of employees have been Resources Management and execution for as promoted to senior leadership positions far back as twenty years - specifically, an every year which encourages others to work inviting pattern towards utilization of the hard and perform better to earn their spot strength of 'fit' hypothesis (or unforeseen among the leadership positions. Ernst and structure) and RBV of the firm. Young lay solid accentuation on succession planning to assemble a hearty and assorted However, most exact examinations seem to leadership pipeline. The organization support a universalistic point of view. The considers both the accessible openings and regularizing Human Resources Management individuals inside the association to model expects that Human Resources guarantee that the important assets are Management practice emphatically recognized and are prepared for any current influences authoritative performance, and or future places that are or may get empty846. frequently infers that regarding Human Resources Management practice 'more is EXPLORING THE RELATIONSHIP better'. A broad measure of examination has BETWEEN HRM AND FIRM upheld a positive and direct relationship PERFORMANCE: A META-ANALYSIS OF between Human Resources Management LONGITUDINAL STUDIES. practice/frameworks what's more authoritative performance yet has not As HRM-execution relationship has been demonstrated a reasonable reason request one of the fervently discussed subjects in the connection among Human Resources Human Resources Management writing. A Management and performance interestingly. case study847 conducted on the relationship The 'fit' hypothesis advocates that how best 846 SHRM India, Best Workplaces 2012: Case Studies on 847 G. SarIdakis, Y. Lal & C.L. Cooper, Exploring the HR Best Practices, (Dec. 12, 2020, 11:15 AM) relationship between HRM and firm performance: A meta- https://www.shrm.org/hr-today/trends-and- analysis of longitudinal studies, HUMAN RESOURCE forecasting/research-and- MANAGEMENT REVIEW 87, 96 (2017). surveys/Documents/SHRMIndiaBestworkplaces.pdf . CORPUS JURIS|320 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in practices on firm performance are restrictive settings contend that specific mixes of on unforeseen factors, and shifts altogether Human Resources practices may adversely between representative groups, influence firm performance. In past a few organizational settings, and settings using a researchers have contended that even though meta-investigation of 92 examinations to representatives are presented to an appraise the impact size of Human Resources arrangement of Human Resources practices Management on firm execution find that instead of individual practices, each heap of High-Performance Work Practices (HPWP) HPWPs are not identical in their effect on frameworks improve impact sizes, however, worker execution and, in this manner, on they additionally stress that the specific firm performance, it was reasoned that proof situation, for example producing versus that underpins a positive connection among administration industry, additionally matters. HPWPs and firm execution has been overpowering, though just a few longitudinal It was suggested that an arrangement of examinations have researched the various, yet reciprocal Human Resources measurable relationship among Human Management practices strongly affects firm Resources and execution. performance than individual Human Resources Management rehearses. This It has been argued that a firm exhibition can further backs the 'more is better' see or adds be upgraded and improved by 0.287 of a substance and positive effect of various normalized unit for every unit increment in prescribed procedures. the selection of HPWP, specifically, in an arrangement of a lot of joined and commonly Therefore, the more such strategies and strengthening Human Resources rehearses. practices are practiced, the better the firm Nonetheless, given a predetermined number performance gets. Although the of existing longitudinal examinations and recommendation that an arrangement of troubles related to non-experimental Human Resources Management mediations research plans analyzing the causal has more grounded impacts than singular connection between Human Resources ones is apparent in other examination rehearses still stays a test. CORPUS JURIS|321 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in CONCLUSION & RECOMMENDATIONS This paper has tried to look at how Human Resource Management works and how it affects the organization and how vital a role it plays in an organization. We have also tried to look at how with the help of Human Resources Management, corporate firm performance can be improved. Any firm or organization’s performance can be improved using the right and suitable method of Human Resources Management as we learned above. But one thing needs to be kept in mind that with growing time and development taking place Human Resources Management methods need to match the timeline and should be used accordingly. Throughout the study we observed that new development models are needed to be added to Human Resources Management. As organizations and firms are taking a new turn and development now and then the Human Resources Management needs to keep up with the changing pace of these organization and should grow accordingly. Suggestions for Human Resource Management • The relationship between Human Resources and employees is very important. Human Resources is a key in keeping the employees happy and maintaining their well-being in a corporate law firm. • Different training and learning programs should be organized by the firms for the employees, this will lead to the overall development of the employees and in turn, would lead to a mutual gain for both firms as well as employees. • Firms should try and promote their employees and give everybody an equal chance to senior leadership positions rather than hiring people from outside, this would encourage individuals as they could work towards their dreams of reaching the top levels. • New measures and methods should be added to Human Resources Management. CORPUS JURIS|322 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in TRADITION AND MODERNITY – AN EXAMINATION OF BIGAMY: INTERNATIONAL PERSPECTIVE ALONG WITH A COMPARISON BETWEEN US & INDIA -NIHARIKA VERMA* ABSTRACT Penal law of India rebuffs the offense of what is referred to in English Law as ‘Bigamy’, however that term is unmistakably unimportant to the offense here portrayed for it accepts a second marriage fundamentally unlawful, yet which, having respect to the traditions of the individuals in the orient, isn't really the situation. The English standard against plural marriage is hence, entirely unimportant to a non-Christian Asiatic of whatever persuasion. It will in any case, apply to Christian among whom monogamy is rule and plural marriage both a transgression and a wrongdoing. The social shame appended with being a subsequent spouse, the nonappearance of any lawful status to the relationship and the huge agonies of being cheated into the marriage are without a doubt incredibly discouraging for a lady despite the fact that there is no acknowledgment allowed to a subsequent wife, because of the Judicial understanding of the current law. Despite the fact that polygamy, as rehearsed in different countries over the globe, draws in opportunity of religion contentions, it is imperative to take note of the qualification between strict conviction and strict practice. The Supreme Court of India banned this training by its choice in the milestone instance of Sarla Mudgal v. Association of India". "The decision was re-insisted five years after the fact in Lily Thomas v. Association of India. Despite the fact that these cases identified with relationships administered by the Hindu Marriage Act, 1955, their Ratio Decidendi would clearly apply to all relationships whose overseeing laws don't allow polygamy. In the midst of this worldwide and homegrown law responsibility to sex correspondence, this examination paper will plot how the act of polygamy abused ladies' entitlement to equity inside marriage and the family, among different rights, utilizing the wellspring of * Assistant Professor of Law, Amity Law School Lucknow, Amity University. CORPUS JURIS|323 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in global law distinguished in Article 38 of the Statue of International Court of Justice as a controlling structure. KEYWORDS: Tradition, Bigamy, Civil Rights, Marriage, Human Rights, Women Rights. CORPUS JURIS|324 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in INTRODUCTION other rights, using the source of international law identified in Article 38 of the Statue of Certain responsibilities under the International Court of Justice”849 as a guiding international human rights law makes it framework: imperative for the member countries to regard opportunity of religion just as Art. 38.1. The Court, whose function is to assurance fairness among people. “Although decide in accordance with international law polygamy, as practiced in various nations such disputes as are submitted to it, shall across the globe, engages freedom of religion apply – arguments, it is important to note the distinction between religious belief and a) “international conventions, whether religious practice. While a few countries are general or particular, establishing rules not entitled under the international law to expressly recognized by the contesting restrict religious belief, they are entitled and states; in fact obligatedin some circumstances to b) international custom, as evidence of a restrict religious practices that undermine the general practice accepted as law; rights and freedom of others. c) the general principles of law recognized by civilized nations; Various courts have held that the right to d) subject to the provisions of Article 5, manifest one’s religion can be limited for judicial decisions and the teachings of the legitimate purposes including the protection most highly qualified publicists of the of health, the promotion of secularism and various nations, as subsidiary means for the protection of gender equality.”848 the determination of rules of law.”850 “Amidst this international and domestic law commitment to gender equality, this research Under international human rights law, there paper will outline how the practice of is a developing agreement that polygamy polygamy violated women’s right to equality disregards women’s entitlement to be within marriage and the family, amongst liberated from all types of segregation. 848 Niamh Reilly, Women’s Human Rights, Polity Press, 849 S.R. Chauhan and N.S. Chauhan, International UK, (2009). Dimension of the Human Rights Global Vision Publishing House, New Delhi, (2012). 850 International Court of Justice art 38. CORPUS JURIS|325 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in “Where polygamy is permitted through polygamy, but also a growing recognition of religious or customary legal norms, it often women’s right to equality.”852 relies on obedience, modesty, and chastity codes that preclude women from operating “The right to gender equality has been central as full citizens and enjoying their civil and to the evolution of post-World War II political rights. Within this framework, international human rights law. Initially, women have often been socialized into human rights declarations and conventions subservient roles that inhibit their full adopted a negative sense of gender equality participation in family and public life. The by deeming sex a prohibited ground of physical, mental, sexual and reproductive, discrimination.”853 “The 1948 Universal economic, and citizenship harms associated Declaration of Human Rights (Universal with the practice violate many fundamental Declaration), the International Covenant on human rights recognized in international Civil and Political Rights (the Political law.”851 Covenant), and the International Covenant on Economic, Social and Cultural Rights (the State practice demonstrates that a total Economic Covenant), all relied on the norm legitimate forbiddance of polygamy is the of sex non-discrimination. standard in most homegrown frameworks including the entirety of the Americas, Within this non-discrimination framework, Europe, and nations of the previous Soviet there are variations that may import positive Union, Nepal, Vietnam, China, Turkey, obligations on States parties. Article 23(4) of Tunisia, and Côte d'Ivoire (Ivory Coast), the Political Covenant, for example, requires among others. Moreover, there is a checkred States parties to “take appropriate steps to pattern toward limiting the training ensure equality of rights and responsibilities somewhere else, especially through legal or of spouses as to marriage, during marriage, potentially spousal consent necessities. and at its dissolution.” The term “ensures” is “These restrictions reflect not only the socio- typically interpreted within the treaty context economic problems associated with 851 Chiranjivi J. Nirmal, Human Rights in India Oxford 853 U.C. Jha, Human Rights and Justice (Vij Books India University Press, New Delhi, (2000). Pvt Ltd, New Delhi, 2010). 852 Ibid. CORPUS JURIS|326 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in as imposing a positive duty on States parties any persons. In the context of human rights to achieve the stated goal.”854 being bound to the belief that culture is important and valuable, and that lives are UNIVERSAL DECLARATION ON HUMAN affected by the culture one belongs to, RIGHTS denying anyone their culture or heritage could be the same as denying the person’s “The United Nations came into existence identity. In this context, the same is stated for officially on the 24th of October 1945. conscience and religion. As stated in the Today, the United Nations has 193 Member UDHRs article 18, for individuals or in States (UN, 2017), and over 560 multilateral communities, private or public, there is a Conventions are deposited with the number freedom of thought, including teaching, growing every year (UN Treaties, practice, worship and observance.”858 2017).”855“In addition to the UNs nine Core Conventions of International Human Rights “In relation to gender in UDHR, all people Instruments, one of the most known are born free, equal and entitled to all human documents is the UDHR that was the first rights without discrimination on the basis of document to proclaim that fundamental sex which is stated in the declarations second human rights are to be universally protected article. UDHR acknowledges that men and as a common standard for all people of all women are equal before the law and in nations”856. On culture, the UDHR, article marriage, which is stated as “equal” in article 27, states – 7 and 16 referring to marriage not just as a “women’s issue”, but as an issue of “… everyone has the right freely to participate in the responsibilities and opportunities for both cultural life of the community”.857 men and women in the human right to get married.”859 “This implies that no one has the right to dominate, direct or eradicate any culture of 854 Supra Note 848. 858 Universal Declaration of Human Rights, 855 Supra Note 849. (September 30, 2020) 856Adami, Rebecca, “Women and the Universal Declaration https://www.ohchr.org/EN/UDHR/Documents/U of Human Rights” (Taylor & Francis,2018). DHR_Translations/eng.pdf. 857 UDHR Art. 27. 859 Ibid. CORPUS JURIS|327 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in THE RIGHTS TO CULTURE AND relationships in everyday life”863 This “way of life” RELIGION or “coherent self-contained system of values and systems” is by the Article a right for “A few decades after the proclamation of the everyone to take part in, and states should UDHR, in 1976, the ICCPR entered into take necessary steps for its conservation, force and is today considered one of the nine development and diffusion. core international human rights instruments in addition to the ICESCR of the same year. As for religion, ICCPRs article 18 states that: The declaration aims to ensure that the civil “Everyone shall have the right to freedom of thought, and political human rights, as well as conscience and religion. This right shall include economic, social, cultural human rights from freedom to have or to adopt a religion or belief of his the UDHR are domesticated into the law of choice, and freedom, either individually or in the Member States.”860 community with others and in public or private, to manifest his religion or belief in worship, observance, “The States Parties to the present Covenant recognize practice and teaching.” 864The article also the right of everyone: (a) To take part in cultural mentions that limitations to the article must life…”861 be proscribed by law as well as “… necessary to “The steps to be taken… shall include those necessary protect public safety, order, health, or morals or the for the conservation, the development and the diffusion fundamental rights and freedoms of others.”865 of… culture.”862 THE RIGHTS OF WOMEN The word culture includes a way of life or a “a coherent self-contained system of values and “The Convention on the Elimination of systems that a specific cultural group reproduces over Discrimination against women (CEDAW) time and which provides individuals with the required was adopted in 1967 and stresses that signposts and meanings for behavior and social discrimination against women is unjust and 860 “International Human Rights Law: A Short History”, 863 Yupsanis, Athanasios, “The Meaning of 'Culture' in Vol. XLVI, Jan, 2009 (September 30, 2020) Article 15 (1) (a) of the ICESCR - Positive Aspects of https://unchronicle.un.org/article/international- CESCR's General Comment No. 21 for the Safeguarding of human-rights-law-short-history. Minority Cultures” German Yearbook of International 861 ICESCR 1976 art 15.1(a). Law. 55 345-383 862 ICESCR 1976 art 15.2. 864 ICCPR 1976 art 18.1. 865 ICCPR 1976 art 18.3. CORPUS JURIS|328 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in constitute an offence against human dignity upon many aspects of the article 16 as well as and that women are to enjoy the same social, its relationship to Article 9 and 15. General cultural, economic, civil and political rights as recommendation No.21 notes that Article men.”866 In other words, it requires the state 16(1) (h) specifically refers to the economic to eradicate all discrimination of women in dimensions of marriage and its dissolution. It these areas making women equal to men. also integrates the social and legal Article 2(f) of the Convention states the developments that have taken place since the following which the State Parties should adoption of the general recommendation undertake – No.21, such as the adoption by some State Parties of law registered partnerships and de “To take all appropriate measures, including facto unions, as well as the increase in the legislation, to modify or abolish existing laws, number of couples living in such regulations, customs and practices which constitute relationships.”868 discrimination against women”867 “The entitlement of women to equality General recommendation on article 16 of within the family is universally acknowledged the Convention on the Elimination of All as evidenced by the related general Forms of Discrimination against Women comments of other human rights treaty (Economic consequences of marriage, bodies such as Human Right Committee and family relations and their dissolution) Committee on Economic, Social and Cultural Rights also refer to equality in the “Article 16 of the Convention provides for family as a fundamental principle.”869 the elimination of discrimination against women at the inception of marriage and at its Some State Parties that perceive polygamous dissolution by divorce or death. In 1994, the relationships, under either strict or standard Committee adopted general law, additionally accommodate common recommendation No.21, which elaborated marriage, monogamous by definition. Where 866 CEDAW 1967 art 1. 869 The Millennium Project, Goal 3 (September 25, 867 CEDAW1967 art 2(f). 2020) 868 The UN Convention on the Elimination of All http://www.unmillenniumproject.org/goals/index.ht Forms of Discrimination Against Women: A m. Commentary. United Kingdom, OUP Oxford, 2012. CORPUS JURIS|329 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in common marriage isn't given to, ladies in Committee in its general recommendation networks that training polygamy may have no No.27, “polygamy is still practiced in many real option except to go into a marriage that State Parties, and many women are in is in any event possibly, if not effectively, polygamous unions”. Accordingly, with polygamous paying little mind to their regard to women in existing polygamous desires. “The Committee concluded in marriages, States Parties should take the general recommendation No.21 that necessary measures to ensure the protection polygamy is contrary to the Convention and of the economic rights of women. must be “discouraged and prohibited”.”870 This paragraph 14 of the Recommendation THE RIGHT TO MARRIAGE No.21 states that “polygamous marriage contravenes a women’s right to equality with UDHR states the right to marriage in its men, and can have such serious emotional Article 16 acknowledging that men and and financial consequences for her and her women are equal before the law in marriage. dependents that such marriages ought to be Furthermore, marriage is mentioned in discouraged and prohibited”. Since the ICESCR871 and ICCPR872 but as a right only adoption of this general recommendation, in ICCP which states that – the Committee has reliably noted with concern the perseverance of polygamous “The right of men and women of marriageable age to relationships in numerous States Parties. In marry and to found a family shall be recognized”.873 its closing perceptions, the Committee has highlighted the grave implications of The two articles from the two conventions polygamy for the basic liberties and financial both stresses that free and full consent are prosperity of ladies and their kids, and has required for entering a marriage and that the reliably required its nullification. State Parties family is the natural and fundamental unit of should take all legislative actions and policy society. “CEDAW also contains an article measures needed to abolish polygamous regarding marriages.”874 It stresses that men marriages. Nevertheless, as stated by the and women have equal rights in marriage, 870 CEDAW Paragraph 14, General Recommendation 872 ICCPR 1976 art 23. No.21. 873 Ibid. 871 ICESCR 1976 art 10. 874 CEDAW 1967 art 16. CORPUS JURIS|330 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in especially in relation to the right of getting purpose of research. “The first historical married, free choice of spouse, free and full relationship between male and female consent, equal rights and obligations and presented in its Judaic and Muslim religious more. forms were propagated as monogamous: Adam and Eve, conceived as the first human “Although all four human rights instruments beings, consummated the first marriage mention marriage as a human right and equal union as equal counterparts.”876 But right none of them mentions anything polygamy, “both official and unofficial,”877 specifically about marriage being a can be traced back to the oldest human legal monogamous union, or who and how many codes. “The earliest recorded human laws, people can get married to. It is hereby unclear the Hammurabi legal code in 1752 BC and if the Declaration and the Conventions are the Babylonian code, both contained open towards polygamous marriages or protective clauses in favor of the second wife not.”875 and her offspring, indicating the presence of polygamous practice this far back.”878 Polygamy and Law in Contemporary Saudi Arabia Marriage Pattern including Polygamy in the Hijaz Earlier research has identified variations in “With the holy cities of Mecca and Medina at the practice of polygamy between the urban its heart, the Hijaz has always been an urban, educated and the tribal inhabitants of Saudi multicultural society, open to outside Arabia. In view of the recognized influences. This was due to its strategic educational, social and cultural differences position amongst Muslims worldwide which between the inhabitants of the vast generated a yearly influx of Muslim pilgrims, geographical area under Saudi rule, some of whom chose to settle there and polygamous practice may vary, making an make it either their permanent or temporary accurate generalization inconsistent with the home. Polygamy was rare in Mecca except 875Ibid. with two or more women under circumstances where 876 Gordon McConville, Genesis, World Faiths: The religious and social norms do not encourage it. Old Testament 68 (Teach Yourself Books, Hodder & 878 Gerda Lerner, “The Creation of Patriarchy” 113 Stoughton1996). (Oxford University Press 1986). 877 The term ‘unofficial polygamy’ is used when referring to the state of cohabitation between one man CORPUS JURIS|331 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in amongst the very rich. As for people of the was judged (by him) to be unsuitable to middle and lower classes, various practical meet his new needs.”880 difficulties made monogamy the rule.”879 “In the first and second cases, the first wife The practice of polygamy amongst the city- sometimes even chose her husband’s second dwelling Hijazi people of the Western wife. This could either be explained as a way Province of Saudi Arabia was not as wide- of coming to terms with the inevitable by spread as it was in the more nomadic selecting a co-wife that she could Northern Province of Nejd. In the Hijaz, communicate and reach a compromise with, polygamy was practiced only in cases where or simply as a means of saving face in front it was considered that circumstances of society. In the third case mentioned above, demanded it. “The most obvious cases of the husband often chose his second wife polygamy amongst those 1960s generations from Egypt, Syria or Lebanon, where women were said to have occurred mainly in had more education and were, relatively situations where – speaking, more exposed to the outside world than their Saudi counterparts. This would 1. the first wife was unable to conceive, explain their suitability for husbands while the husband yearned for offspring employed in the Foreign Service, for to carry his name; example.”881 2. the first wife had a long-term illness preventing her from fulfilling her Marriage Patterns in Nejd required obligations, namely “Women in 19th century Mecca, especially consummating the marriage and caring those from lower classes, were able to for her home and family; contract their own marriages sometimes 3. the husband’s job had ‘grown’ and now using help of go-betweens. The situation is involved entertaining and//or frequent contrasted with that of women in Nejd travelling and his ‘traditional’ first wife during approximately the same historical was either unable or unwilling to adapt or period, where male guardians were entirely 879Hurgonje, “Mekka in the Latter Part of the 19th 881 C. SnoukHurgonje, Mekka in the Latter Part of the Century” 88. 19th Century, Daily Life Customs and Learning: The Moslims 880 Ibid. of the East-Indian-Archipelago 85- 86 (Late E. J. BrillLtd and Luzac& Co. 1931). CORPUS JURIS|332 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in responsible for agreeing and contracting the marriages”.884“The traditional patriarchal marriages of women under their tutelage, system dominated the Nigerian society and including non-virgins. Any marriage gender asymmetry is present in many forms contracted without a guardian’s consent, such as defined sex roles and sex segregation. including one taking place with the consent The patrilineal lineage system dominates in of a judge in court, was considered to be null Nigeria and males have common ancestors and void.”882 through their father’s lineage and are associated with a higher rate of polygamy Marriage and divorce were always and than in the matrilineal system. In a patrilineal continue to be viewed through a more community man is considered as the lineage ‘pragmatic’ eye. Polygamy was, and remains, successors and men are granted role as the more widely practiced in Nejd. Equally, head of the household. Such gender divorce did not carry with it the stigma which dynamics signifies an imbalance of power was attached to it in the Hijaz. “A divorced between men and women in private and woman who was still able to conceive had a public domain.”885 fair chance of remarriage (although usually into another polygamous union). Divorced Early marriage for women is associated with women in most families in the Hijaz today polygamous marriage and not surprisingly, still face a more difficult social situation than the highest rate of polygynous marriage is their sisters in Nejd, despite the increase in found in the Northern parts of Nigeria. Islam polygamy there, as the research describes in a allows a man to marry up to four wives, give subsequent section.”883 that he treats all his wives equally and that he gains his wives’ consent. The DHS report for Polygamy in Nigeria Nigeria shows that, polygamous marriages are more prevalent in the rural area than “Polygamy is practiced at a higher rate in urban areas. However, it does not shed light Nigeria with 33% of women in polygamous on the rate of informal polygamy in Nigeria. 882Natana J. Delong-Bas, Wahhabi Islam from Revival and 884 DHS Nigeria 2016 (September 28, 2020) Reform to Global Jihad, I. B. Tauris 141 (Oxford https://dhsprogram.com/ University Press 2004) 885Ibid 883Madawi Al-Rasheed, A History of Saudi Arabia 79 (CambrIdge University Press 2002). CORPUS JURIS|333 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Furthermore, despite the trends of decline Polygamy and the motivation for for polygamy, it is still practiced at high rate reproduction in Nigeria. The main motivations for polygamy in Nigeria are socio-economic and are related to What are the main motivations? reproduction. These two motivations are Polygamy is a subset of marriage, in this interrelated with each other and can be manner the inspirations for polygamy cover explained by kinship systems and the with the inspirations for one to marriage. As economic gain possible through polygamy. indicated by Brown, the primary inspirations The kinship system relies heavily on the for polygamy are proliferation, social glory, existing bonds between individuals in the financial reasons and religion. The reasons family and it is through these bonds that basic these inspirations allude to the people are able to prosper economically, connection frameworks and the sex elements politically and achieve a higher social status. in Nigeria. The unmistakably characterized The existence of the kinship system is based sex parts in Nigeria consign men as the on family bonds, networks and the expansion monetary suppliers of the family and confine of family members. Kinship systems and the ladies’ functions as moms and spouses which cult of ancestry are the roots of such high make a circumstance where numerous ladies pressure for fertility in the Nigerian society. are vigorously reliant on her better half for financial help. Besides, ladies' economic Therefore, they are influencing the wellbeing and sex jobs are lower than those motivations to enter polygynous marriage in of men in Nigeria. For example, ladies in Nigeria. Polygyny coincides with the kinship Nigeria have restricted admittance to system as large families are favored since it property and can have more admittance to allows the male lineage to continue. Thus, a land through marriage. Customarily, men woman in a monogamous marriage would have impact over asset creation and sex jobs allow polygyny if she is infertile, and in the and polygynous marriage is a creation of such case of infertility even a Christian a social association. Long haul view of monogamous Nigerian woman would allow polygamy as a typical and adequate marriage her husband to take additional wives. decision, combined with the obvious sex uniqueness, permits polygamy to endure. CORPUS JURIS|334 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Polygyny and the socio-economic time.”886 It is also stated that “for the wife, motivations polygamy is a liberating force. Thanks to the Sexual orientation disparity in Nigeria presence of ‘co-wives’, wives are allowed to prompts various inspirations to enter each have their own time out of the ‘chores polygyny for people. Men's monetary of married life’”. For ladies in Nigeria, inspiration to enter polygyny is connected to polygyny might be a superior option female profitable and regenerative incentive monetarily than their spouses having in the general public. The assets a man can courtesans. Ladies would prefer to enter pick up from his more distant family in polygyny over their spouses having connection frameworks are gainful for extramarital illicit relationships as they business exchanges and financial flourishing. guaranteed that special ladies are harder to Subsequently spouses and youngsters in control than wives. polygynous associations mean present and future help with work and mature age uphold “Also, if a wife in a polygynous union has for men. more children than her co-wives, she will have more access to the household resources “Women`s economic motivation for entering than the others. In that sense women have polygyny may be related to the gender economic gain through reproduction as well dynamics where they have to take care of the and this leads to intense competition and household as well as farming. Through often conflicts between co-wives. In a society polygyny, women in an agrarian society in which respects seniority as in Nigeria, senior Nigeria may gain a form of autonomy. The polygynous wives gain higher social and entering of additional wives into the family domestic status over junior wives.”887 unit signifies a sharing of responsibility and women are less burdened in their everyday In the case of Nigeria, such widespread lives. Women in polygynous unions state that assumptions on polygyny have created the division of labor is the main advantage of further inequality in marriages in Nigeria. polygyny and they benefit from more leisure This has taken the form of informal polygyny 886Supra Note 881. Right in Bauchi State”. Malaysia, Ahmad Ibrahim 887Yelwa, Mansur Isa. “Polygamy and Law in Northern Kulliyyah of Laws, International Islamic University Nigeria: A Case Study of Its Practice and Impact on Women's Malaysia, 2014. CORPUS JURIS|335 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in where the gap between a husband and wife’s liberalized in the light of modern times and power and status widen. In such unions, the made recommendations for changes in law. wives have no formal status, no legal benefits The civilian governments after 1956 avoided as wives and are in total financial dependency legislating on the Report, but General Ayub on the husband. Kinship systems, fixed sex Khan made selected recommendations of the roles and gender discrepancy are what create Report into law through an Ordinance in gender inequality in the society and polygyny 1961. is one product of such a society. A resolution against the Muslim Family Law Polygamy and Law of Pakistan Ordinance was subsequently presented in the National Assembly but was not passed. The Pakistani laws allow a man to contract a Ordinance never carried consensus among second marriage only after obtaining the the Ulema and was considered by them as express consent of his first wife. Pakistani being against Islam. It was never presented in and Islamic laws exist to discourage this the parliament for proper legislation but practice by imposing stringent restrictions on stood as an indemnified law by the elected polygamy; however, the culture of parliament of 1970. contracting more than one marriage is still prevalent, particularly in rural societies. The imperatives set on polygamy by necessity of use to the neighborhood Union Council In 1955, the Commission on Marriage and for authorization and warning of existing Family Laws prepared a Report safeguarding, spouse/wives, sponsored up by correctional inter alia, the rights of the woman. Justice assents for getting a polygamous marriage Abdur Rasheed headed the Commission. It without earlier consent; husband's comprised seven members, three women and contracting polygamous marriage in four men. Justice Abdur Rasheed wrote the contradiction of legitimate systems is an Report while Maulana Ehtesham-ul- adequate ground for first wife to acquire HaqThanvi, the cleric member of the declaration of disintegration. Commission, appended a dissenting note to the Report. The Commission accepted the The Federal Shariat Court was pleased to set principle that Family Laws had to be aside the Report of the Council of Islamic CORPUS JURIS|336 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Ideology recommending that provisions POLYGAMY IN US AND INDIA: A against polygamy be further strengthened in COMPARATIVE PERSPECTIVE Section 6 of the Muslim Family Law Ordinance. The ground taken by the Court “Although secularism in India and the United was that the Report had had no effect and States takes very different forms, both therefore could not be considered as binding. countries struggle with similar controversies Conservative Fiqh inclines to the Quranic in family law. These debates and conflicts reference to polygamy in a number of verses mirror battles in the social sphere. The but ignores verses that clearly prefer tension between traditional religious values monogamy to polygamy. and secularism can also be viewed as one between communal or group rights and In 4:3 the Quran says '...but if ye fear that ye individual rights. In both countries, shall not be able to deal justly with them then constitutionally protected individual liberties only one, or that which your right hands run against the long-held traditions of the possess, that will be more suitable to prevent majority or the group, whether that is a family you from doing injustice'. Then in 4:129, the or religious community.”888 The debate Quran says, 'Ye are never able to do justice surrounding polygamy exemplifies this between wives even if it is your ardent desire'. tension, and the practice has most often been Many scholars, including Syed Abul Ala defended as part of the right to the free Maududi who favored the contents of the practice of religion in both countries. Muslim Family Law Ordinance, have inferred Religion is deployed as shield to protect the from these verses that the state should codify practice of polygamy, pitting faith against law against polygamy accordingly, but the claims of modernity, gender, justice and conservative clergy is of the opinion that the equality. The polygamy laws in the United above Quranic verses still do not constitute a States and India provide insight into how clear order. In Tunisia and Turkey polygamy each legal system reconciles religion with is banned under Muslim Family Law. personal and communal rights. Moreover, the arguments surrounding polygamy also implicate discourses about race and progress 888 Mahmood, Tahir, Syed, “Personal Law in Crisis”, Metropolitan(1986). CORPUS JURIS|337 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in that have long been tributaries of this central this increased federalization is either a cause debate. for concern or celebration.”889 However, even a cursory familiarity with the history of India’s secularism allows significant polygamy in the Mormon community shows “enlargement” between church and state, that there was a time in the 1800s when the with the state administering religious law, federal government was heavily involved in while a similar role would be beyond the pale regulating family form. Of course, there were of U.S. judicial authority. Although other motives for the anti-polygamy secularism in India and the United States regulations but nevertheless, the foray into takes very different forms, both countries the family law by the federal government is struggle with similar controversies in family often overlooked in family law texts and by law. These debates and conflict mirror battles the scholars. in the social sphere. The tension between traditional religious values and secularism can From the mid-1800s to the turn of the also be viewed as one between communal or century, the federal government passed a raft group rights and individual rights. legislation aimed at curbing the Mormon Church’s financial and political power and its The United States: Zero Tolerance for practice of polygamy. “The first salvo in the Polygamy war on polygamy was the Morrill “It has become axiomatic that there is no Anti0bigamy Act of 1862.”890 The Morrill Act “federal” family law in the United States criminalized bigamy but it went largely despite the raft of legislation that touched unenforced “due to difficulties establishing upon the family. The growth in federal proof of a second marriage without public or regulation in the last three decades in areas church records, uncooperative Mormon such as interstate child support and custody witnesses and Mormon control of the Utah has fueled the perception that the federal judiciary.”891 “This ineffectual regulation was government has embarked on the regulation supplemented by the Poland Act of 1874 of families. Depending on your perspective, which limited the control of the judiciary by 889Harbach, Mereduth, “Is the Family a Federal 891Marhta M. Ertman, “Race Treason: The Untold Story of Question?” 66 (Wash & Lee Co. 2009). American’s Ban on Polygamy” 287- 294 (19 COLUM J. 890 Morrill Anti-bigamy Act of 1862, (repealed 1910). GENDER & L, 2010). CORPUS JURIS|338 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in the Mormon Church. Utah state courts were rather than the spouse, required registration deprived of the jurisdiction over civil and of every ceremony of marriage, or in 'the criminal cases, which were instead tried in nature of a marriage ceremony.”893 federal courts. After the passage of the Poland Act, the Morrill Act was challenged in While these acts were being legislated, the Reynolds case.”892 Mormons mounted challenges to their constitutionality. “The often-cited, seminal Despite being upheld as constitutional, the case dealing with polygamy in the US is Morrill ad Poland Acts failed to curb the Reynolds v. United States.”894 The test case practice of polygamy. The piece of legislation was brought after the enactment of the that sought to redress that defect was the Poland Act and challenged the Edmunds Act of 1882. This law criminalized constitutionality of the Morrill Act. “George cohabitation, punishing it with fine and Reynolds, a member of the Church of Jesus imprisonment. The law also disqualified Christ of Latter-day Saints, was charged with polygamists from voting or holding public bigamy under the federal Morrill Anti- office. Bigamy Act after marrying a woman while still married to his previous wife. Reynolds “Unfortunately for the federal authorities, argued that the law was unconstitutional. He the Edmunds Act was just as ineffective at reasoned that his religion required him to stamping out polygamy as were the two marry multiple women and the law therefore previous acts. The final attack on polygamy violated his First Amendment right to free came with the Edmunds-Tucker Act of 1887. exercise of religion.”895 The question before This was the most stringent and severe of the the court was – “Is religious duty or belief a laws passed as it eliminates obstacles in defense to a criminal charge?” – To which the polygamy persecutions, allowed the state to court categorically answered negatively. The compel wives to testify against their Court upheld Reynolds's conviction and polygamous husbands, allowed adultery Congress’s power to prohibit polygamy. prosecutions to be instituted by the state “The Court held that while Congress could 892 Reynolds v. United States, 95 US, 145 (1879). 894 Ibid. 893 Gordon, Sarah, “The Mormon Question: Polygamy and 895 Supra Note 858. Constitutional Conflict in 19th Century”, (Unvi of North Carolina Press, 2003). CORPUS JURIS|339 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in not outlaw a belief in the correctness of laws prohibiting bigamy because it offends polygamy, it could outlaw the practice “public policy.”899 In State v. Holm, “the thereof. The majority reasoned that while Utah Supreme Court upheld the conviction marriage is a “sacred obligation,” it is of polygamist for violating the state law nevertheless “usually regulated by law” in prohibiting people from purporting to marry “most civilized nations.” Finally, the Court or cohabiting with a woman while being held that people cannot avoid a law due to married to another. The case involved a man their religion.”896 who married to one woman legally and two others in religious ceremonies. One of the Further, in Cleveland v. United States, the ‘informal’ wives was the sister of his legal court held that polygamous wife and was a minor at the same time.”900 marriage/practices well within the purview of “The Utah Supreme Court was the Mann Acts of prohibition of the unsympathetic to claims that informal transportation of women and girls across marriages should not be regulated because state borders “for the purposes of they seek no state recognition. The case is prostitution or debauchery or any other particularly important because it published immoral purpose.”897 In the cases that came informal polygamous relationships when after turn of the 12th century, the sharp there was only one legal marriage. No privacy distinction between belief and practice right was found to protect the consensual, somewhat eroded. adult relationships in the de facto polygamous household.”901 Even the “Anti-polygamy laws did not ostensibly privatization of this practice, in which adults’ target Mormons as a group for their religious consent to enter a polygamous union and belief, or so the argument went. Rather, where none is harmed, is beyond historically Congress aimed the laws at the accommodation when marriage is itself protection of women and children, and the defined in law through the dominant cultural promotion of a shared set of civic values.”898 and religious tradition. In more recent times, the Court has upheld 896Reynolds v. United States, (October 1, 2020) 899 Supra note 858. https://www.oyez.org/cases/1850-1900/98us145. 900State v. Holm, 137 P. 3d 726 (Utah 2006) 897Cleveland v. United State, 329 U.S. 14 (1946). 901 Ibid. 898 Ibid. CORPUS JURIS|340 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in INDIA: REFORM AND ACCOMMODATION “The tendency towards abolition of polygamy is also present in India. This tendency has existed since the colonial period when the imperial authority to define family law in order to simplify and ease the administration of a complex, heterogeneous population. “The British imperial administration formally banned polygamy in the Indian Penal Code, 1860 for those commodities in which it was not a traditional practice.”902 The British made an exception for Hindus and Muslims whose personal laws recognized plural marriages as valid.”903 “It is often argued that the modernist factions within Indian society working at the state level before independence were impetus for reform of polygamy.”904 “Indeed, the nascent women’s organizations that were starting to work on the advancement of Indian women were a key group that pushed for the legislation at the start level. The principality of Baroda was the first state to formally ban polygamy after receiving support from the Hindu religious establishment.”905 Polygamy abolition then took place in a piecemeal fashion, with other states following. “The Bombay Prevention of Hindu Bigamous Marriages Act of 1946 is perhaps the most well-known enactment that preceded the federal legislation post-independence.”906 The case testing that enactment’s validity has become a cornerstone of polygamy jurisprudence in India. In NarasuAppa Mali, “the Bombay High Court was faced with a constitutional challenge to the Bombay legislation. In its decision, the court came to a conclusion similar to that of Reynolds and Cleveland in upholding the criminalization of bigamy for Hindus. However, the court also found that the prohibition did not violate equal protection by treating Hindu males differently from Muslim males.”907 In this case, a Hindu male was criminally convicted of violating the Bombay Prevention of Hindu Bigamous Marriages Act, 1946. He challenged the law, claiming that it was a violation of his fundamental rights guaranteed by the Articles 14, 15 and 25 of the Indian 902 Indian Penal Code 1860 Chapter XX Section 494. 903 Morgan, Walter & Arthur George, “The Indian Penal Code (Act XLV of 1860)”, Calcutta: Hay & Co. 1861. 904Menski, Warner, “Hindu Law: Beyond Tradition and Modernity”, (oxford University Press, 2008). 905 Supra Note 858. 906State of Bombay v. NarasuAppa Mali AIR 1952 Bom 84. 907 Ibid. CORPUS JURIS|341 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in Constitution. The High Court held that a “sharp distinction must be drawn between religious faith and belief practices. The High Court of Bombay held that under Article 25(a) (b), the State is empowered to change the personal laws of Hindus as a measure of social reform. In fact, the Act did not discriminate against Hindus because they were the beneficiaries of a positive reform toward progress and modernity. At least in this decision, the formal persistence of polygamy is the only intimation that Muslim difference amounts to a lack of progression into modernity. Though characterization of bigamy law may seem very convenient and somewhat peculiar, the decision shows an understanding of social facts that the state may take into consideration when devising its reform agenda. The activism against polygamy has been largely focused on Muslims. The anti-polygamy stance has resulted in some strange interest convergences, particular between secular woman’s rights advocates and right-wing Hindu politicians. In spite of the opposition to Muslim polygamy by some groups, there is also a countervailing position demanding recognition for religious pluralism that prevents the Indian Federal government from enacting a blanket criminalization of polygamous marriages across communities. Largely, that position has been adopted by traditional Muslims seeking to retain group autonomy within the state, but it has also found some acceptance within the judiciary and the state. “As a result, while Hindu law was reformed, Muslim personal law has been frozen in time, with the clock stopping in 1938”908 In Indian context, legal reform has been complicated by the tension between uniformity and the push for a Uniform Civil Code on one hand and the tolerance for legal pluralism that continues to accommodate various religious family law regimes on the other. Despite the ability of the Indian federal government to reform Hindu personal law, it has not resulted in the eradication of polygamy in that community. By contrast, the legal landscape in the United States is far more uniform even after the repeal of the federal laws on polygamy. 908 Muslim Personal Law (Shariat) Application Act 1937. CORPUS JURIS|342 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in VACCINE NATIONALISM: A THREAT TO GLOBAL HEALTH -AISHWARYA KHANNA* & C. BALAJI* ABSTRACT During these unprecedented times of COVID-19, when the governments and public at large are affected by illness, unemployment, bankruptcy, starvation and confinement, it has become increasingly clear that the world economy has faltered and the healthcare system is struggling to fight this deadly disease. It is of paramount importance for countries to come together and pool their resources to research and develop a vaccine and adopt appropriate mechanisms to eradicate this deadly virus. But, even in such circumstances, few developed countries are in favour of the notion of ‘Vaccine Nationalism’. If in due course vaccine nationalism is adopted by such developed nations, it may lead to a tremendous global threat and possibly slow down the search for a cure of the current COVID-19 outbreak. The idea of such curtailment may prove to be ruinous for the majority of the world population. An open innovation paradigm is the need of the hour. Instead of one nation dealing with this contemporary issue single-handedly, it can join hands with others for their support, as this would ease the whole process of finding a cure as well as aid to share the burden among all nations. It would be a successful venture where there would not be any prevalence of monopoly on knowledge in this field. This paper is an attempt to highlight the ill-effects of vaccine nationalism and the outcry of other developing and underdeveloped nations seeking a vaccine, the applicability of the TRIPS Agreement by compulsory licensing and the beneficial nature of mandatory licensing for the society at large. KEYWORDS: COVID-19, Vaccine Nationalism, Compulsory licensing, Vaccine, TRIPS. * Graduate, Guru Gobind Singh Indraprastha University, Delhi. * Student, 1st Year, LLM, MNLU Aurangabad. CORPUS JURIS|343 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in INTRODUCTION countries are affirmative to the process of vaccine nationalism. Simply put, ‘Vaccine “The whole history of the world is summed up in the Nationalism’ can be put as a method of fact that, when nations are strong, they are not procuring doses of vaccine by one country always just, and when they wish to be just, they are for its own citizens and ultimately prioritising no longer strong.”909 the Domestic market over the International – Winston Churchill market. New daily record numbers of infections The relentless nature of this pandemic has led worldwide raise concerns regarding the to great concerns about the problems of poor impact of the COVID-19 pandemic upon countries in dealing with the disease. developing nations. Inadequate health care Catastrophic impacts are feared in particular facilities, vulnerable economies, and extreme in low- and several middle-income countries, inequalities threaten healthcare, livelihoods, with large groups of marginalised people in and peace in many low- and middle-income low rural areas and urban slums. We have countries. The risk of increasing infection seen specific problems faced by the people in rates remains imminent for all countries until Africa, Latin America, and the Middle East as a vaccine or medicine is available worldwide. a result of the pandemic.910 During these challenging times where every India has seen a spike in the number of cases nation is affected by the COVID-19 reported recently. According to the data pandemic and is committed to ensuring a collected by Global Change Data Lab secure environment for its citizens, it would (GCDL),India had recorded around be fair to say that a vaccine is the need of the 79,46,429 of total COVID-19 cases of hour. Every nation is trying hard to obtain/ confirmed infections and around 1,19,502 develop a vaccine for the cure, and few deaths, with 104.42 million tests conducted 909 Exploring the foundations of Churchill's Leadership 910 Wolfgang Hein and Anne Paschke, Access to through his wit and wisdom, WINSTON CHURCHILL COVID-19 Vaccines and Medicines- A Global Public Good MEMORIAL AND LIBRARY, THE U.S Global, July 2020, GERMAN INSTITUTE OF INSTITUTE OF MUSEUM AND LIBRARY GLOBAL AND AREA STUDIES (GIGA) (2020) SERVICES (Aug. 23, 2020, 13:10 UTC), (Aug. 23, 2020, 13:34 UTC), https://www.nationalchurchillmuseum.org/cmss_fil https://www.jstor.org/stable/resrep25695. es/attachmentlibrary/teacherguIde.pdf. CORPUS JURIS|344 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in so far.911 A rigidly imposed lockdown, FUNDAMENTAL RIGHT TO A VACCINE wearing of face masks in many states made compulsory, and internal travel restrictions The Indian Constitution envisages the right have resulted in reported hardships linked to to access to healthcare facilities to every these measures. Fortunately, there have been citizen regardless of social or economic fewer deaths in India in comparison to other disparity. Article 21 of the Indian countries across the globe. A host of Constitution guarantees the protection of life questions exist around India's COVID-19 and personal liberty to every citizen.915 In the death figures, and most experts agree that landmark judgment of Bandhua Mukti they are likely being underreported.912"If we Morcha vs. Union of India, the Supreme indeed had high death rates, no amount of Court held that right to live with human data could have hidden that - that's 20-40 dignity under Article 21 is derived from the times as many deaths" said Shamika Ravi, an Directive Principles of State Policy and economist and senior fellow at the Brookings therefore includes the protection of health.916 Institution.913 India's low death rate is also similar to other countries in the region, such The escalating stress of COVID-19 has as Pakistan or Indonesia. Theories range brought to fore egregious inadequacies in from a higher prevalence of infections in the India’s healthcare system.917 To address this, area to a less virulent strain of the virus the Supreme Court took suo moto circulating in these countries to younger cognizance of the media reports on patient populations on an average than badly hit suffering in government hospitals and the western nations, given that COVID-19 execrable health conditions in hospitals predominantly kills the elderly.914 throughout the country.918 In the case of Suo Moto Writ Petition (Civil) No (s). 7/2020 the 911 Hannah Ritchie, Esteban Ortiz-Ospina, Diana 914Ibid. Beltekian, Edouard Mathieu, Coronavirus Pandemic 915 INDIAN CONSTI. art 21 (COVID-19)- The data, OUR WORLD IN DATA- 916 Bandhua Mukti Morcha v. Union of India , AIR GLOBAL CHANGE DATA LAB (Oct. 27, 2020, 1984 SC 802. 13:50 UTC), 917Shivkrit Rai, Analyzing Supreme Court’s Attempt to https://ourworldindata.org/coronavirus-data. Safeguard Right to Health, THE LEAFLET (Aug. 27, 912Aparna Alluri and Shadab Nazmi, Coronavirus: Is 2020, 14:00 UTC), India the next global hotspot?, BBC NEWS (Oct. 27, 2020, https://www.theleaflet.in/analyzing-supreme-courts- 14:00 UTC), https://www.bbc.com/news/world- attempt-to-safeguard-right-to-health/# . asia-india-53284144. 918 Ibid. 913Ibid. CORPUS JURIS|345 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in three-judge bench of the Supreme Court living standard and raising the level of reiterated that the state must ensure the right nutrition the government has been working to health. The court also noted a decrease in at the forefront to provide adequate facilities COVID-19 testing and directed that there and opportunities to all the citizens in need. should be a steep increase in testing by the State.919 In another case of Shashank Deo Sudhi vs UOI and Ors. where the petitioners demanded for Although the right to healthcare is not free testing of COVID-19 by Private labs for denotatively expressed as a fundamental right people belonging to economically weaker under the Indian Constitution, Article 47 in section, where the bench consisted of the Directive Principles of State Policy under Justices Ashok Bhushan and Ravindra the Indian Constitution emphasizes and Bhat,921 The petitioner had sought directions directs the state to perform the following to ensure free testing for COVID-19 in duties: public as well as private hospitals.922 In the previous order, the court had directed the “The State shall regard the raising of the level of same. Still, in this final order, the court nutrition and the standard of living of its people and backtracked on its earlier directions and the improvement of public health as among its made testing free only for persons eligible primary duties and, in particular, the State shall under Ayushman Bharat Pradhan Mantri Jan endeavour to bring about prohibition of the Aarogya Yojana.923 In this case, two very consumption except for medicinal purposes of contrasting orders were passed by the same intoxicating drinks and of drugs which are injurious bench within 5 days.924 In its initial order, the to health”920As far as the former part of the bench agreed with the petitioner's view. It provision is concerned where the state has deemed that private hospitals including been vested with the duty to improvise the laboratories have an essential role to play in 919Ibid. ani/free-testing-for-covId-19-available-for-those- 920 INDIAN CONSTI. art 47 eligible-under-ayushman-bharat-yojana-sc- 921 Shashank Deo Sudhi v. UOI and Ors, (D. No. 120041301311_1.html. 10816 of 2020), 924 Sanchita Kadam, COVID19: Ten most significant 922 Ibid. decisions of the Supreme Court of India, Citizens for Justice and 923Free testing for COVID-19 available for those eligible under Peace, (June 03, 2020), accessed on (Aug. 27, 2020, Ayushman Bharat Yojana: SC, BUSINESS- 14:25 UTC), https://cjp.org.in/covId19-ten-most- STANDARD, (April. 13, 2020), significant-decisions-of-the-supreme-court-of-india/. https://www.business-standard.com/article/news- CORPUS JURIS|346 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in containing the scale of a pandemic by TRIPS AGREEMENT IN CONSONANCE extending philanthropic services in the hour WITH USE OF COMPULSORY LICENSING of national crisis and hence directed Indian Council of Medical Research (ICMR) and the Paragraph 6 of the Doha Declaration on the Central government to direct approved TRIPS Agreement and Public Health reads as private labs to conduct testing for free, follows: “We recognize that WTO Members with without any preconditions or caveats.925 insufficient or no manufacturing capacities in the pharmaceutical sector could face difficulties in making In its modified order, after intervention from effective use of compulsory licensing under the TRIPS private laboratories, the court stated that "the Agreement. We instruct the Council for TRIPS to order never intended to make testing free for find an expeditious solution to this problem and to those who can afford the payment of a report to the General Council before the end of testing fee fixed by the ICMR for COVID- 2002.”929Paragraph 7 states: “We reaffirm the 19”.926 It observed that private labs were commitment of developed-country Members to provide already conducting tests for free for people incentives to their enterprises and institutions to covered under Ayushman Bharat Yojana and promote and encourage technology transfer to least- then left it up to the government whether any developed country Members under Article 66.2. We other categories of persons belonging to also agree that the least-developed country Members economically weaker sections of the society will not be obliged, concerning pharmaceutical can be extended benefit of free testing of products, to implement or apply Sections 5 and 7 of COVID-19.927 Part II of the TRIPS Agreement or to enforce rights provided for under these Sections until January 2016, “We are conscious that framing of the without prejudice to the right of least-developed scheme and its implementation are in the country Members to seek other extensions of the Government domain who is the best experts transition periods as provided for in Article 66.1 of in such matters,” said the bench.928 the TRIPS Agreement. We instruct the Council for 925 Ibid. 927Ibid. 926 Supreme Court says COVID-19 test free only for 928 V. Venkatesan, Court In CovId Times, FRONTLINE, economically weaker section, INDIA LEGAL, (Aug. 27 (Aug. 27-2020, 14:30 UTC), 2020, 14:30 UTC), https://www.magzter.com/article/News/FRONTLI https://www.indialegallive.com/constitutional-law- NE/Court-In-CovId-Times. news/supreme-court-news/supreme-court-says- 929 WT/MIN(01)/DEC/2. covId-19-test-free-economically-weaker-section/. CORPUS JURIS|347 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in TRIPS to take the necessary action to give effect to The WTO (World Trade Organisation) in this under Article 66.1 of the TRIPS one of its transcripts934 had mentioned about Agreement.”930 And Article 66.2 reaffirms this the IPR woes about vaccine nationalism. It statement with adherence to the principle of iterated the provisions concerning the same pacta sunt servanda (Agreements must be from the Doha declaration and the TRIPS kept).931Moreover, this principle has also been agreement. Concerning diseases and enshrined in Article26 of the Vienna products covered, most WTO Members' Convention on the Law of Treaties, it states implementing measures follow the that: “every treaty in force is binding upon the parties definitions provided by the WTO decisions to it and must be performed by them in good faith.”932 establishing the Paragraph 6 System (see para.1(a) of the 2003 Decision and para.1(a) The good faith component of this principle of the Annex to Article 31bis TRIPS in proposes that States should find a way to conjunction with para.1 of the Doha follow the object and purpose behind the Declaration).935 treaty. States should strive not to conjure limitations forced by domestic law as a valid Certain enactments expound on the justification for not following their treaty importance of "Pharmaceutical Products" by obligations. In addition to this, States must additionally and unequivocally including ensure that competent authorities duly ratify dynamic fixings, analytic packs and, in a the instrument by constitutional and couple of cases, immunizations. A special statutory prerequisites of the nation.933 exemption is Canada: it accommodates a 930Ibid. 934 Declaration on the TRIPS Agreement and Public 931WTO-Analytical Index, TRIPS Agreement art. 66, Health, Ministerial Conference, Fourth Session, (Aug. 27,2020, 14:30 UTC), World Trade Organisation, Doha, 9-14 November, https://www.wto.org/english/res_e/publications_e/ 2001, accessed on-(27-10-2020, 16:00 UTC), Available ai17_e/trips_art66_oth.pdf. at: 932Vienna Convention on the law of treaties (with https://docs.wto.org/dol2fe/Pages/FE_Search/FE annex.) May. 23, 1969, Vol. 1155,1-18232, (Aug. 27, _S_S009- 2020, 15:00 UTC), Available at: DP.aspx?language=E&CatalogueIdList=35766&Curr https://treaties.un.org/doc/publication/unts/volum entCatalogueIdIndex=0&FullTextHash=&HasEnglis e%201155/volume-1155-i-18232-english.pdf. hRecord=True&HasFrenchRecord=True&HasSpani 933 Andrew Solomon, Director of Programs, American shRecord=True Society of International Law, Pacta Sunt Servanda, 935 TRIPS Agreement, art. 31bis, WTO Analytical International Judicial Monitor, September 2008 Issue, Index, (March 2020), accessed on (28-08-2020, 15:40 accessed on (27-10-2020, 15:30 UTC), Available at UTC), http://www.judicialmonitor.org/archive_0908/gener https://www.wto.org/english/res_e/publications_e/ alprinciples.html. ai17_e/trips_art31_bis_oth.pdf. CORPUS JURIS|348 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in positive list of products (Schedule 1 of the b) Secondly, it is the responsibility of the Patent Act) which are qualified for the award Controller to grant the compulsory license of a special compulsory licence. In any case, for the manufacturing and exporting the the list can be and has been amended by an concerned pharmaceutical product only after expert committee.936 reviewing the application made by a particular nation. The Controller may attach As far as the domestic laws are concerned, such terms and conditions to this license as section 92A of the Patents Act, 1970 (the he deems fit.938 Act) talks about the compulsory licence for the export of patented pharmaceutical c) Thirdly, the above provisions must be carried products in certain exceptional out without any prejudice to the extent to circumstances: which such products being produced under a compulsory license can be exported under a) Firstly, the compulsory licence shall be made any other provision of this Act.939 available for manufacturing and exporting of patented pharmaceutical products to any Now let us look at the meaning of nation having inadequate or nil ‘Pharmaceutical Products’ to derive the manufacturing capacity about the purpose of this provision. The term refers to pharmaceutical sector, for the concerned any patented product or any product which product to address public health issues. This is manufactured through a patented process, is subject to a prior grant of compulsory of the pharmaceutical sector which is licencing by such country or such country undoubtedly needed to address public health being allowed for the importation of the problems and shall be inclusive of ingredients patented pharmaceutical products from necessary for its manufacture and diagnostic India.937 kits required for its use.940 936Roger Kampf, Special compulsory licenses for export of https://www.wto.org/english/res_e/reser_e/ersd20 medicines: key features of WTO members implementing 1507_e.pdf. legislation, ECONOMIC RESEARCH AND 937The Patents Act 1970, § 92-A STATISTICS DIVISION- WTO (Aug. 28-2020, 938Ibid. 16:00 UTC), 939 Ibid. 940Ibid. CORPUS JURIS|349 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in COMPULSORY LICENSING AS A SINE QUA time after the expiration of three years from NON the date of the grant, by any person interested on any of the following grounds: Amidst the global widespread of the pandemic, there comes a necessity for more a) That the reasonable requirements of joint/cooperative efforts to address the the public concerning the patented emerging patent issues and ensuring that invention have not been satisfied, treatments and ultimately vaccine for or942 COVID-19 are: affordable, available and b) That the patented invention is not accessible. Before delving into the benefits of available to the public at a reasonably compulsory licensing, let us understand what affordable price or943 does it mean and let us also look into some c) that the patented invention is not of the relevant provisions enshrined in the worked in the territory of India.944 Patents Act, 1970 about the grant of such a license. A compulsory license is a license But only upon the satisfaction of the grounds conceded by the government to an presented to him or upon meeting of the intermediary to utilize the patented invention prerequisites, the Controller might grant a to limit the privileges of the patentee in order licence. However, this option can only be to forestall the misuse/abuse of the rights by explored after three years, i.e. after the expiry the property holder and to reduce the of the license from the date of grant of the negative impact of such activity on the patent. public.941 And there is a special provision for As per section 84 of the Act, an application compulsory licensing which falls under the for the grant of compulsory license on a purview in the following circumstances: patent can be made to the Controller at any 941 Mrinalini Gupta- Singh & Associates, Pharmaceutical 942The Patents Act, 1970, § 84 Patent Provisions in India , MONDAQ (Aug 29 2020, http://www.ipindia.nic.in/writereaddata/Portal/IPO 16:40 UTC), Act/1_113_1_The_Patents_Act_1970_- https://www.mondaq.com/india/patent/311136/ph _Updated_till_23_June_2017.pdf. armaceutical-patent-provisions-in- 943 Ibid. india#:~:text=Section%2092A%20of%20the%20Act 944 Ibid. ,license%20for%20that%20patented%20pharmaceuti cal CORPUS JURIS|350 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in According to section 92 of the Act, the is granted solely towards the manufacturing compulsory license on a patent shall be and the exporting of the concerned granted by the Central government any time pharmaceutical product to such nation.949 after the sealing of the patent under the following situations: Some of the benefits which can be derived out of compulsory licensing are as follows: a) Circumstance of a national emergency; or945 1) The manufacturers have secured b) The circumstance of extreme access to an already well-established urgency; or946 technology. They and might not have c) Case of public non-commercial a necessity to go through additionally use,947 cost-intensive revocation or time-and resource-intensive patent opposition. Section 92A of the Act facilitates the 2) It avoids the risk of failure that can manufacturing and exporting of the patented come with internal efforts to design pharmaceutical products to any nation around existing vaccine technology having insufficient or nil manufacturing patents. capacity in the pharmaceutical sector for the 3) It gives increased access to life-saving concerned product to address public health drug amongst the public or to problems by granting a compulsory license improvise public access to patented, for that patented pharmaceutical product.948 expensive drugs/ life-saving The critical aspect that needs to be taken into medicines. consideration is that the compulsory license 945The Patents Act, 1970 § 92, 17:00 UTC), 946 Ibid. https://www.mondaq.com/india/patent/311136/ph 947Ibid. armaceutical-patent-provisions-in- 948The Patents Act, 1970,§ 92 A, (Aug. 30, 2020, 16:55 india#:~:text=Section%2092A%20of%20the%20Act UTC) ,license%20for%20that%20patented%20pharmaceuti 949 Mrinalini Gupta- Singh & Associates, Pharmaceutical cal Patent Provisions in India , MONDAQ, (Aug. 30, 2020, CORPUS JURIS|351 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in CONCLUSION Nations across the globe should join their hands and take a co-ordinated action or approach that might temporarily suspend the application of relevant international laws to COVID-19 vaccines and drugs but such measures shall prove to be a crucial step in fighting the pandemic. Médecins Sans Frontières (MSF) or “Doctors without Borders” a French Origin International Humanitarian Medical non-governmental organisation, in one of its reports as of the year 2017 commented on how patents have hindered the introduction of affordable vaccines in developing countries950. The rights of the inventor should be protected which arguably goads innovation. However, one must bear in mind is that this cannot be achieved by risking the life of billions of people. India's recent proposal at the World Trade Organization (WTO), jointly with South Africa, asking for a temporary waiver of the application of specific provisions of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement on COVID-19 vaccines and drugs must be seen in the same light.951 If the waiver is granted, WTO member-countries will not be under any obligation, for a temporary period, to either grant or enforce patents and other Intellectual Property related rights to COVID-19 drugs, vaccines, ventilators, masks and other related products.952 This will help them devise plans to provide vaccines to their citizens without worrying about any further legal hurdles. While many developing countries have supported India’s proposal, countries such as the United States have opposed this move.953 ArticleIX.3 and article IX.4 of the WTO Agreement empowers the ministerial conference to grant such a waiver.954 The ministerial conference must consider the exceptional circumstances to allow 950 A Fair Shot for Vaccine Affordability, MÉDECINS SANS FRONTIÈRES (Sept. 01, 2020, 13:15 UTC), 951 India, South Africa ask WTO to ease IP rules for COVID-19, THE HINDU, (Oct. 28, 2020 18:30 UTC), https://www.thehindu.com/news/national/india-south-africa-ask-wto-to-ease-ip-rules-for-covId- 19/article32759681.ece. 952 Ibid. 953 Ibid. 954 WTO Agreement, art. IX, https://www.wto.org/english/res_e/publications_e/ai17_e/wto_agree_art9_jur.pdf. CORPUS JURIS|352 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in this waiver, identify the terms and conditions governing the working of the waiver, and the date on which it shall end.955 Thus, the WTO can temporarily suspend the application of the IP-related provisions for a certain period to address the issue of accessibility of vaccines and drugs.956We have seen several instances in the past where WTO has adopted such waivers.957 To conclude, it is quite evident that if the global community succeeds in surmounting the idea of national protection and focuses upon protecting public’s rights to equitable access to life saving drugs or compulsory licensing, the current pandemic could turn out to be a game changer towards the access to medicines for the greater benefit of the community. 955 Ibid. 956 Prabhash Ranjan, Suspend international IP, patent obligations on CovId-19 vaccines, HINDUSTAN TIMES, (Oct. 26, 2020, 16:30 UTC), https://m.hindustantimes.com/analysis/suspend-international-ip-patent-obligations-on-covId-19- vaccines/story-C8KL9pTmRcvaxvMOXhZcYN_amp.html. 957 Ibid. CORPUS JURIS|353 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in VODAFONE TAX ARBITRATION: WHAT NEXT? -ABHISHEK MAHAJAN* & SHASHANK MAHESHWARI* ABSTRACT “Recently, Permanent Court of Arbitration’s decision in Vodafone International case sent legal shock to Government of India as this case has been one of the most contentious cases in terms of tax liability and the sovereign power of the Government to charge tax retrospectively. Starting from the decision of the Supreme Court in 2012 to the PCA award in 2020, the case has been fought on many grounds and became a precedent in many cases. The PCA award poses a problem for the Government of India not only because it questions the sovereign power of the Government in regards to taxation but also because of the effect it will have on the exchequer as this case can become a precedent for future litigation especially the ongoing Cairn India Ltd. case which is also pending before the PCA on a similar issue of retrospective taxation. In this case comment, we shall be studying the Vodafone case in detail and explore the legal options available with the Government of India to agitate the case further.” KEYWORDS: Arbitration, Alternate Dispute Resolution, Vodafone, Taxation. * Advocate, Supreme Court of India. * LLM, National Law University Delhi. CORPUS JURIS|354 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in INTRODUCTION: THE DISPUTE the share capital of its subsidiary company CGP international to Vodafone. The Permanent Court of Arbitration at Hague has recently issued an award in a long- The said deal indirectly resulted in Vodafone pending arbitration case between Vodafone acquiring 67 percent of the controlling Group and Indian Government relating to interest of Hutchison Essar Limited in India retrospective taxation. Ruling in favour of because CGP international was holding 67 Vodafone, the Permanent Court of percent interest prior to the deal. Vodafone Arbitration in its award has stated that Indian challenged the validity of the show-cause Tax department retrospectively imposing a notice by filing a writ petition which was tax liability was in breach of guarantee of ‘fair dismissed. and equitable’ treatment as provided under the bilateral investment treaty between India The Hon’ble Supreme Court, however, vide and the Netherlands.958 its landmark judgment in Vodafone International Holdings BV v. Union of India and The dispute initially arose in 2007, when Anr.959 allowed Vodafone’s appeal and held India’s tax authorities issued a show-cause that the sale of shares of CGP international notice to Vodafone alleging that the firm by HTIL to Vodafone does not amount to failed to deduct and thereby withheld tax transfer of capital assets within the meaning when it acquired the controlling interest in of Section 2(14) of the Income Tax. The the business of Hutchinson Essar in India Apex Court concluded by observing that through an offshore deal to which no Indian transactions should be interpreted in a entity was a party. This offshore deal took holistic manner and presence of corporate place between two non-resident companies, structures in tax investor friendly nations i.e. Vodafone International holding and should not lead to the conclusion that these Hutchison telecommunication international are a colourable device meant to avoid taxes. limited (HTIL) by which HTIL transferred 958 Govt. of India, Art. 4(1) of the National Treatment PROTECTION OF INVESTMENTS, and Most Favoured Nation Treatment, https://www.dea.gov.in/sites/default/files/Netherla AGREEMENT BETWEEN THE REPUBLIC OF nds.pdf. INDIA AND THE KINGDOM OF 959Vodafone International Holdings BV v. Union of NETHERLANDS FOR PROMOTION AND India and Anr., AIR 2012 6 SCC 613 CORPUS JURIS|355 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in This decision of the apex court triggered the treatment”. The Permanent Court Government to come up with the Finance ofArbitration accepted the above contention Bill, 2012960 with the proposal of amending anddecided the issue in favour of Vodafone the Income tax law. Consequently, the in the following words: Centre through the Finance Act, 2012 which was provided under Explanation 2 of clause “(2) The Claimant is entitled, in respect of its (xvi) of section 3 of the amendment investments in mobile telecommunications in India, to act961amended the Income tax Act with the protection of the guarantee of fair and equitable retrospective effect to tax any gain on treatment laid down in Article 4(1) of the transfer of shares in a non-Indian company, Agreement. which derives substantial value from its Indian assets, such as Vodafone’s deal with (3) The Respondent’s conduct in respect of the Hutchison. This basically had the effect of imposition of the Claimant of an asserted liability to annulling the decision of the Supreme Court tax notwithstanding the Supreme Court Judgement is and again reviving Government’s claim for in breach of the guarantee of fair and equitable dues from Vodafone thus reopening the treatment laid down in Article 4 (1) of the dispute. Agreement, as is the imposition of interest on the sums in question and the imposition of penalties for FAIR & EQUITABLE TREATMENT non-payment of the sums in question”963 Among other issues before the Permanent The provision of fair & equitable treatment is Court of Arbitration, the major contention of provided under the bilateral Investment Vodafone International was that the Treaty between the countries. It is mentioned Government of India violated its basic duty as follows: provided under India-Netherlands Investment Treaty962 i.e. “fair & equitable 960Finance Bill, 2012 available 962Govt. of India, AGREEMENT BETWEEN THE at:http://164.100.24.219/billstexts/lsbilltexts/AsIntr REPUBLIC OF INDIA AND THE KINGDOM OF oduced/Finance%20Bill,%20Eng..pdf NETHERLANDS FOR PROMOTION AND 961 Govt. of India, Finance Bill, 2012 (Act No. 23 of PROTECTION OF INVESTMENTS, 2012), https://www.dea.gov.in/sites/default/files/Netherla file:///D:/Documents/Downloads/finance_act_201 nds.pdf. 2_as_approved_by_presIdent.pdf 963Vodafone International Holdings BV v. Union of India and Anr., AIR 2012 6 SCC 613 CORPUS JURIS|356 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in “Investments of investors of each Contracting Party this FET is same as the term “full protection shall at all times be accorded fair and equitable and security”. He stressed by referring to treatment and shall enjoy full protection and security Organization for Economic Cooperation and in the territory of the other Contracting Party.”964 Development(OECD) Commentary that FET conform to minimum standards of The first reference to the term “equitable” international law. can be traced back to Havana Charter for International Trade Organization, 1948. Art. b) Oil Platforms (Iran v. United States)967 11(2) of the same put an obligation on the In dissenting opinion given by one of the member countries to ensure that the judges of ICJ observed the meaning of “fair investments done by the foreign country & equitable treatment” in following words: should receive “just and equitable “The key terms ‘fair and equitable treatment to treatment”.965 There have been some nationals and companies’ and ‘unreasonable and judicial decisions on the same principle discriminatory measures’ are legal terms of art well especially when bilateral treaties were known in the field of overseas investment protection, involved. which is what is there addressed…”968 a) Asian Agricultural Products Ltd. (AAPL) v. c) American Manufacturing & Trading Republic of Sri Lanka966 (AMT) (US), Inc. v. Republic of Zaire969 In this case, the dissenting opinion which was In this case, ICSID tribunal found the host given by Judge Asante assumed importance country i.e. Republic of Zaire in violation of as he discussed the meaning of the term “fair Bilateral Investment Treaty which was there and equitable treatment”. He observed that between USand Zaire, as the host country did 964Govt. of India, Art. 4 of the National Treatment and https://www.wto.org/english/docs_e/legal_e/havan Most Favoured Nation Treatment, AGREEMENT a_e.pdf. BETWEEN THE REPUBLIC OF INDIA AND 966Asian Agricultural Products Ltd. (AAPL) v. THE KINGDOM OF NETHERLANDS FOR Republic of Sri Lanka, ICSID Case No. ARB/87/3. PROMOTION AND PROTECTION OF 967 Iran v. United States, 1996, I.C.J. 803 (Preliminary INVESTMENTS, Objection) https://www.dea.gov.in/sites/default/files/Netherla 968OECD, Fair and Equitable Treatment Standard in nds.pdf. International Investment Law, OECD Working Papers on 965Interim Commission for the International Trade International Investment Number 2004/03, Organization, United Nations Conference on Trade http://dx.doi.org/10.1787/675702255435. and Employment, Cuba (Nov 21, 1947 to Mar 24, 969American Manufacturing & Trading, Inc. (AMT) 1948), (US) v. Republic of Zaire, ICSID case No. ARB/93/1 Award, 21 February 1997. CORPUS JURIS|357 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in not follow the requirements of “fair and amounts to a violation of “fair and equitable equitable treatment” which resulted in the treatment”. loss of revenue to the AMT company. The WHAT NEXT? tribunal noted: Having invoked the India-Netherlands “…These treatments of protection and security of bilateral treaty (‘Netherlands BIPA’) instead investment required by the provisions of the BIT of of challenging the vires of retrospective which AMT is beneficiary must be in conformity with amendments before the Hon’ble Supreme its applicable laws and must not be any less than those Court, Vodafone has again come out on top recognised by international law. For the Tribunal, with a favourable decision this time from the this last requirement is fundamental for the Permanent Court of Arbitration. The determination of the responsibility of the [host state]. international tribunal’s award has affirmed It is thus an objective obligation which must not be Vodafone’s stand that it is covered within the inferior to the minimum standard of vigilance and of scope of the ‘guarantee of fair and equitable care required by international law” treatment’ and India has breached this guarantee by asserting upon Vodafone the In the above-stated cases, it can be seen that retrospective liability to tax notwithstanding the host country have to follow minimum the Supreme Court judgment.The standards of requirement as required under Government of India is currently International law. They also have to take into weighinglegal options available to it and is consideration the fact that the policies which soon expected to take a call on whether to are to be implemented under the national challenge PCA’s award or to accept the same. policy have to conform to basic minimum Will the Government yield to the award or requirements under Fair and Equitable challenge the same would depend on Treatment. multiple factors. In the Vodafone case, due to the Legally speaking, India can go back to the retrospective effect of Income Tax law, the Permanent Court of Arbitration only on a company suffered a loss of billions of dollars. On this aspect, PCA ruled that such law CORPUS JURIS|358 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in technical point970, but it is very unlikely to side of Permanent Court of Arbitration’s serve Government’s purpose. Since the award in Vodafone’s case, there is high Indian Arbitration Act casts an obligation on possibility that Cairn Energy will also get a the Government to implement a foreign favourable decision on this basis. As a matter award971, Vodafone can obviously ask for of fact, it has to be acknowledged that there enforcing the PCA’s award in case the award exists every likelihood that arbitral award in is challenged in Indian Courts. Moreover, the case of Cairn Energy will be swayed by since Vodafone’s property lies outside the PCA’s decision in Vodafone’s case. The territory of India, it would not be easy for the reason being that the language of the Bilateral Government of India to procure the same. Investment treaty of India Netherlands and the bilateral investment treaty of India and While the above arguments being against United Kingdom is same in respect of “fair challenging the award, what must be playing and equitable treatment”.972 on Government’s mind is the persuasive value which the award possesses in other It is pertinent to mention that in the past, treaty arbitrations and in particular the Government has accepted most of the retrospective tax measures. It is imperative to decisions of international panels irrespective note that almost on an identical issue of of the whether the outcome has been retrospective tax demand as in Vodafone’s favourable or not. Be it Maritime Boundary case, another arbitration proceeding is dispute with Bangladesh973in which the court currently pending in the case of Cairn Energy awarded the area of 19,467 square kilometre in light of the India-UK InvestmentTreaty out of 25,602 sq. Kilometre disputed area of which is having monetary implications of Bay of Bengal to Bangladesh or the Italian approximately Rs 11,000 Crore. With Marines Case974 in which the court held that Government of India being on the wrong the Italian marines were on duty and were 970PTI, “Govt weighs legal options in Vodafone tax THE KINGDOM OF NETHERLANDS FOR arbitration case”, The Hindu (4th October, 2020), PROMOTION AND PROTECTION OF https://www.thehindu.com/business/Industry/govt INVESTMENTS, -weighs-legal-options-in-vodafone-tax-arbitration- https://www.dea.gov.in/sites/default/files/Netherla case/article32764724.ece. nds.pdf. 971 Arbitration & Conciliation Act 1996 S. 46. 973 Bangladesh v. India, Permanent Court of 972Govt. of India, Art. 4 of the National Treatment and Arbitration, ICGJ 479 (PCA 2014). Most Favoured Nation Treatment, AGREEMENT 974 Italy v. India, ICGJ 499 (ITLOS 2015). BETWEEN THE REPUBLIC OF INDIA AND CORPUS JURIS|359 Corpus Juris ISSN: 2582-2918 The Law Journal website: www.corpusjuris.co.in entitled to immunity and therefore India has say that the authority to tax is a sovereign to “cease its criminal jurisdiction over entitlement and isuniversally accepted as a them”.975 However in the Vodafone case, rule of law. Thus, tax being a sovereign Government has come out with a different subject, PCA’s arbitral award nullifying approach and has released a statement saying theeffect of retrospective tax liability that‘will consider all options and take a decision on imposed on Vodafone by the Finance Act, further course of action including legal remedies before 2012 may be viewed as an interjection of a appropriate fora.’976One of the primary lawfully enacted law by the Indian reasons behind such reluctance of the Parliament. The said charge of tax which Government to yield to the PCA’s award in draws it backing from the retrospective this case is the persuasive value it holds in amendments of 2012 can be lawfully be similar treaty arbitration cases which is likely resisted only if the Government withdraws to have huge adverse tax implications in such amendments following appropriate already existing economic crisis. parliamentary sanction. Apart from this, what Government of India While PCA’s award has come as a big blow must also be contemplating is whether the to the Government of India, legal options are arbitration panel has gone beyond its still available to them, and the battle may not prerogative to adjudicate on the scope of tax be lost just yet. With stakes being as high as laws of a sovereign. The Hon’ble Supreme they are in this case, it would be too early to Court of India in Jindal Stainless Ltd. v. State of rule out the possibility that Government may Haryana977,has held that power to levy taxes give it another shot and challenge the has been universally acknowledged as an impugned award in the appropriate fora. essential attribute of sovereignty. It is safe to 975Vanshaj Jain, Italian marines won’t ‘suffer’ in Indian CNBCTV18 September 25th, 2020, courts for killing Kerala fishermen, PCA ensures, THE https://www.cnbctv18.com/legal/govt-to-explore- PRINT August 31st, 2020, all-legal-options-in-rs-20000-crore-vodafone-tax- https://theprint.in/opinion/italian-marines-wont- arbitration-case-7021461.htm. suffer-in-indian-courts-for-killing-kerala-fishermen- 977Jindal Stainless Ltd. v. State of Haryana, 2017(12) pca-ensures/492126/. SCC 1. 976TimsyJaipuria, “Govt to explore all legal options in Rs 20,000 crore Vodafone tax arbitration case”, CORPUS JURIS|360