International Journal of Legal Research 1 Volume 1 | Issue 1 (2) | ISSN- 2349-8463

SEXUAL HARASSMENT OF WOMEN AT WOKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013

Niharika Verma*

INTRODUCTION

The safety of women is all what we talk about. Women should not do this, should not do that …etc. and all this only and only for her safety. But do you really thing that just merely putting restrictions and obligations on the already weaker section of the society, is solution to all these problems? Surely, no and it will never be. Rapes, eve-teasing, sexual molestation, stalking, voyeurism were not enough to quench the lustful and demonic thirst of men, so now they have gone down to the level of harassing women even at the pious place of work. Yes, here we are dealing with the most common and the burning form of abuse of our female society, SEXUAL HARASSMENT AT WORKPLACE.

While sexual harassment at workplace is widespread and often subtle it was not considered as a problem or given much importance to be dealt with methodically. It was only in 1997, when the Supreme Court for the first time acknowledged Sexual Harassment as unwelcome act which cannot be justified in guise of normal relationship. The Government of India has abided Supreme Court‘s ruling and has made specific provisions in CCS (Conduct) Rules, 1998 prohibiting Sexual Harassment of women by government servants. Circulars and directives are issued to the ministers/departments to take appropriate action against the delinquent Government servants. State Governments and private enterprises have also taken necessary steps in this regard.1

* Dr. Ram Manohar Lohiya National Law University, Lucknow 1 http://ywcaindia.org/PDF/Sexual%20harrassment_final.pdf

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BACKGROUND

The Supreme Court Guidelines on Sexual Harassment at the Workplace, issued in 1997, recognize that sexual harassment is not just a personal injury to the affected woman but violates a woman‘s rights to equality in the workplace. The guidelines mandate that appropriate working conditions should be provided to ensure that women do not face a hostile work environment in the workplace and no women employee should have reasonable grounds to believe that she is disadvantaged or placed in a sexually vulnerable position as a result of her employment. The guidelines shifts the onus for ensuring employees‘ safety and gender equality to the employer and institutions, whether in the government or the private sector, making them responsible to implementing both preventive and remedial measures to make the workplace safe for women.2

Among preventive measures, the guidelines suggest that organization make public in appropriate way an express prohibition of sexual harassment as an offence, and raise awareness of appropriate disciplinary measures that will be taken against offender.

A range of remedial measures are indicated. The guidelines make it mandatory for employers to set up a complaints committee headed by a woman, and for at least half its member to be women. To ensure immorality, the committee is to include a third-party representative from a non-governmental organization or any other person familiar with issues of sexual harassment.

It is clear however, that more general and representative evidence of the extent to which sexual harassment persists in the workplace is lacking, making it difficult to assess the extent to which, following the Vishaka judgment, sexual harassment in the workplace has been addressed.

2 http://www.popcouncil.org/uploads/pdfs/wp/India_HPIF/001.pdf

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WOMEN RIGHTS’ ACTIVISTS

The Act is being highly criticized by the women rights‘ analysis. Unfortunately, it leaves it up to the internal committee to decide a monetary fine to be paid by the perpetrator depending on their income and financial status. Accordingly, a lower level executive has to pay a lower fine for harassment than a senior executive. This unjustified and unreasonable discriminatory scheme leaves scope for inequality among different sections of the society for an act equally heinous in nature, be it committed by anyone.

The act does not cover in its scope and ambit a very important community, that are agriculture workers. The exclusion of armed forces too is an inexplicable gap. Women working in the armed forces suffer highly from sexual harassment which calls for inclusion within the purview of the Act. What needs to be noted is that the Armed Forces sector is heavily male dominated and that the chain of command is in the lair of the males. Enquiries are held behind closed doors putting women in the Armed Forces at a disadvantage to begin with. There is no need to exclude such women from the purview of the Act as no strategic or other interests are affected by protecting them against sexual harassment at workplace.

DISCRIMINATION IN SCOPE AND AMBIT

In an era, where the force of the law thrives for creating equal opportunity and focuses on eliminating discrimination of every kind possible, this particular Act is not at all gender neutral. The Act provides protection against acts of sexual harassment only for women and not men.

On other hand, interestingly various recent studies and surveys over the last years and so have shown that vet often, workplaces also involve women initiating and engaging in acts of sexual harassment. The research concluded

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that with respect to this crime, cites in India are gender neutral and women are often on the dominating end just like men.3

Although, this Act is a great step forward in protection for women, it however leaves a wide scope for false allegations. Individuals not involved in law making but who would rather be governed by this law feel, that its effect must be viewed not just on the individual in question but in totality including his family. This not only becomes a source of nuisance to the man so falsely accused and his family, it also tarnishes their reputation. This in turn becomes a great threat that a household may face.

WHAT IS SEXUAL HARASSMENT?

Sexual Harassment includes such unwelcome sexually determined behavior (whether directly or indirectly) as:

1. Physical contact and advances; 2. A demand or request for sexual favors; 3. Sexually colored remarks; 4. Showing pornography; 5. Any other unwelcome physical, verbal or non-verbal conducts of sexual nature.4

Where any of these acts is committed in circumstances where-under the victim of such conduct has a responsible apprehension that in relation to the victim‘s employment or work whether she is drawing salary or even if she‘s working in the government sector or even in a public or private sector enterprise, such conduct can be humiliating and may constitute a health and safety problem.

3https://library.cgiar.org/bitstream/handle/10947/2719/13_Sexual%20Harassment%20in%20th e%20Workplace_genderdiversity_WP.pdf?sequence 4 http://meghpol.nic.in/Char_SexualHarassment.pdf

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Therefore, sexual harassment takes place if a person – subject women to an unwelcome act of physical intimacy, like touching, brushing, patting, pinching, stalking, assaulting, etc. Makes an unwelcome demand or request for sexual favors and makes it a condition for employment, promotion, increased pay, additional benefits, special privileges, gifts, etc. Makes unwelcome remark with sexual implications, like sexually explicit compliments, dirty and loud jokes, sexist remarks, etc.

FORMS OF SEXUAL HARASSMENT

Sexual Harassment can take many different forms. These include: making sexually explicit remarks and banter, leering, rude comments and personal insults; showing sexually explicit obscene pictures and images from the internet; displaying calendars and pictures of nude woman and sexual assault.

It is generally accepted that sexual harassment includes two types of behavior. The first is usually defined as ―quid pro quo‖ and relates to where an individual, often in a position of power, will explicitly or implicitly make sexual requests and/or advances. In exchange they may offer some desired result, for example, a promotion. The second is sexual harassment which can be defined as ‗hostile environment‘, which refers to sex-related behaviors which make the person being harassed feel uncomfortable, thereby creating an intimidating work environment. This type of sexual harassment is a source of much debate as it may be subtle and is often termed as a ‗grey area‘5

FREEDOM AT WORPLACE

The existence of free and unmonitored work environment along with co- existence of liberties to be frank and humorous with each other at workplace is in fact the need of the hour. This when excised in limits, leads to improved understandings and work efficiency. Few examples can be mild sexual humor,

5 https://research.mbs.ac.uk/equality-diversity/Portals/0/docs/WPS59Sexualharassment.pdf

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unhindered personal level interactions. All these help build up ambient relations and allow the opposite sexes to break the ice and come to terms and understandings which they need to do, both as matured individuals and professionals.

With the reducing of gender exclusiveness at various workplaces, more and more men and women are interacting with each other at workplace. This trend has led to an indispensible need to create a freer and friendly environment for both the genders to freely interact and communicate. However, with strict provisions of the new law, it appears as though this easy interaction will get curbed. With employees being much more careful with their jokes, it will ultimately create a hostile environment at workplace.

But the Act takes away this free environment. Circumstances where casual relations are encouraged between men and women will be curbed due to fear of it being misconceived.

The research now focuses on a provision based analysis of the Act whereby most of the provisions which have raised questions are:

CHARACTER OF LEGISLATION- ABSENCE OF GENDER NEUTRALITY

The first and most glaring flaw of this legislation is the complete ignorance of gender neutrality. The Act is all about sexual harassment of women and does not cater to the opposite gender. While efforts to protect women in the workplace are commendable, there appears to be no such recourse to legislative action for sexually harassed men. According to the law in place, no complaint may be filed by a male employee. There is a rising phenomenon of sexual harassment of males, which though considerably lower than females, cannot be ignored.

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SECTION 2(n)-“SEXUAL HARASSMENT”

The provision narrows the scope of what may be construed as sexual harassment for application of this act. Acknowledgement of technological advancements could have also been noted, so as to include all possible electronic means of sexual harassment. Interpretation concerns are enhanced with the use of the phrase ―unwelcome‖ in clause (v). Legislators have failed to note that the definition of ―unwelcome‖ will be construed in a vastly different manner from each woman‘s perspective. The subjective perception of different women ought to have been included in determination of whether the act is ―unwelcome‖ or not. The definition of ―sexual harassment‖ has also neglected to grant protection against potential victimization of the complainant by an employer. The timeline between making of compliant till a decision is made can be effectively misused by the employer to exert undue pressure on the employee of any nature whatsoever. Alternatively, the definition of ―aggrieved women‖ may have included the same.6

SECTION 2(o) – “WORKPLACE”

The definition includes ―any place which arises within the course of employment‖, thereby including clients‘ offices, taxis, hotels, etc. Hence for the purpose of this Act, the areas over which the employer has no access or control are deemed to be a workplace, and the likely of occurrence of any untoward incident is attributed to the employer. This provision seems to be extending the scope of the Act more than required, i.e. the ‗workplace‘ is being used to incorporate exceedingly unnecessary venues thus putting the employer in a position where in his liability continues irrespective of his presence or control over the situation.

6 http://wcd.nic.in/wcdact/womenactsex.pdf

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This law is framed mainly keeping in mind workplace like offices, organization other institutions and enterprises, where complaints can be referred to the committees. But the problem arises as a majority of Indian women do not work in institutions or organizations and in developed cities. They work in the informal sector such fields, on the roads or as self-employed producers or vendors. Their workplace is everywhere, and there is no mechanism to prevent the everyday forms of sexual harassment that they may undergo.7

SECTION 3 – PREVENTION OF SEXUAL HARASSMENT

The provision deals with threats and detriments given by the employer to the employee and their co-relation with acts of sexual harassment. The phrases, such as ―implied or explicit threat about her present or future employment status” and “interferes with her work or creating an intimidating or offensive or hostile work environment for her”8 will not be conductive for speedy redressal of complaints, because in a professional work environment the employees including females employees are bound to receive certain remarks or feedback with regard to quality of work and the improvements required thereof which might not always be positive. Such genuine and honest feedback, if not well received will become a reason of misusing this provision, i.e. owing to the phraseology of this provision, women might file frivolous complaints on the ground that such feedback was creating an unhealthy work environment.

7BLURRED LINES available at http://indianexpress.com/article/opinion/columns/blurred- lines-2/ 8UNDERSTANDING THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 available at www.livelaw.in/understanding-the-sexual-harassment-of-women-at-workplace-prevention- prohibition-and-redressal-act-2013

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SECTION 4 – CONSTITUTION OF INTERNAL COMPLAINTS COMMITTEE

The criticism of the constitution of this committee has been with in a three- prolonged manner. Primarily, it should be noted that in-house management of complaints may act as a deterrent to victims. It is therefore suggested that the complaints need not forcibly file a complaint with the Internal Complaints Committee. A more adequate forum would be an independent employment tribunal to handle complaints in a more efficient manner, which would simultaneously to be preferable to a victim.9

Secondly, the composition of the committee members should have compulsorily been an odd number to enable the committee to reach a majority- based decision. Thirdly, Section 3(c ) mandates the appointment of a member from a non-governmental organization (NGO) or association ―committed to the cause of women.‖ There is so threshold for this qualification and it has been left open to the interpretation. Further, including third-parties such as NGOs as members of the committee will also raise concerns of confidentiality due to the sensitive nature of such internal matters.

The Act ambitiously creates an obligation for the employer to establish a complaints committee for each of its branches (which employs 10 or more people), even if the branches are in the same city. This provision must be rectified.

Apprehension has been expressed with respect to the disposition of the committee as a whole. The reason for it is the feminist biasness of the committee itself as it comprises of stakeholders strongly prejudiced in favor of the female sex. The most conspicuous shortcoming, however, is that the internal committee is composed of persons without any legal qualifications.

9http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20co mmitte%20report.pdf

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These absences of training specifications for the internal complaints committee will results in an ill-equipped and obstruct justice.

Another important point to be noted is that while under this Act the power to discharge the functions including that of constitution of Local Complaints Committee are to be conferred on a District Officer who can be the District Magistrate or Additional District Magistrate or the Collector or Deputy Collector as notified by the appropriate Government.10 But no where it is clarified as to who is going to be ‗second in line‘ i.e. in absence of the District Officer who shall be authorized to exercise the functions under this Act. In such a scenario, it is possible that LCC would not be constituted in various districts, just because the presiding authority is unavailable or absent.11

SECTION 10(1) – CONCILATION

This provides for the Committee to make an attempt to resolve the complaint through conciliation proceedings undertaken at the victim‘s request and proceed to make inquiry only if a settlement is not reached. However, this provision misleads attempts to achieve justice, in eroding the dignity of women by compromising on women‘s harassment. It is inconvincible and illogical why a sexually harassed woman would like to reconcile with her offender.

SECTION 11(3) – INQUIRY INTO COMPLAINT; POWERS OF CIVIL COURT

This provision vests the Committees with powers of a civil court hence making it a quasi-judicial entity. It is to be noted that the members to be appointed as a part of the Committee are not required to have any legal background nor it is necessary for them to belong to a legal fraternity. Hence,

10 The Sexual Harassment Act, Section 5. 11 http://www.prsindia.org/billtrack/the-protection-of-women-against-sexual-harassment-at- work-place-bill-2010-1402/

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vesting powers of a civil court in authorities having no legal knowledge seems inappropriate. Also, this may be interpreted as an instance of colorful legislation, as powers of courts cannot arbitrarily be conferred on domestic committees.

SECTION 12 – ACTION DURING THE PENDENCY OF A COMPLAINT

On request of the complaint and recommendation of the Internal/Local Committee, the employer must grant paid leave (On completion of the said leave, she can be granted privilege leave by the organization12or transfer of workplace to the complainant). It is to be noted that the mere pendency of complaint has been made; this provision might be misused to leave the workplace even if it is ensured that the workplace remains safe.

SECTION 13(3) – INQUIRY REPORT; POWER TO DEDUCT SUMS FROM SALARY/WAGES

The Committee has been awarded vast discretionary powers. If the alleged sexual harassment is proved, the committee is empowered to take action against sexual harassment in accordance with the prescribed service rules, or to deduct adequate compensation from the salary of the employee, or to recover the compensation from the accused employee as land revenue.

Sexual Harassment is considered to be a violation of basic human rights. Hence, instead of taking drastic action, such as dismissing the accused from employment or suspending him for a considerable time period without any pay; penalizing such act by compelling payment of compensation seems to undermine13the gravity of the offence and equates it to offences wherein the

12 Section 12 provides for granting leave to the aggrieved female employee up till a period of three months in addition to the regular leave which she is allowed to avail on the basis of the employment contract. 13 http://barandbench.com/content/sexual-harassment-bill-undermines-innovative-spirit- vishaka-naina-kapur-lawyer-and-equalit-0#.UwYVU9IW2vN

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harm or damage can be undone by monetary means. Also, in order to carry out the deductions from the salary of the accused employee, corresponding changes need to be made in the Payment of Wages Act, 193614 which provides for certain restrictions when it comes to deductions in the salary of an employee.

SECTION 14 – PUNISHMENT FOR FALSE OR MALICIOUS COMPLSINTS AND FALSE EVIDENCE

It states that if there is false complaint duly backed by forged documents submitted by the complainant or if it is proven that the complaint has been made with malicious intent, then strict action will be taken in accordance with the service rules of the concerned establishment. However, it categorically mentions that if the complaint cannot be substantiated, then it will not attract any repercussions under this provision.15

This red-rag provision goes against the very purpose of this legislation by penalizing women for false or malicious complaints. The criteria of falsity here is evidence of forged documents or proof of malicious intent. It has not been able to consider that there may be a case wherein the complaint is filed and later not sufficiently proved, would possibly be a frivolous complaint. Further, specific penalty is not prescribed by the provision for such complaints; it is merely stated that action has to be taken according to the service rules.

SECTION 26 – PENALTIES FOR NON-COMPLIANCE

Chapter VI lays down the duties of employers. Section 26 prescribes penalties for non-compliance with the provisions of the Act, which includes a monetary

14Act No. 4 of 1936. 15http://almtlegal.com/articlespdf/ALMT%20Newsflash%20Sexual%20Harassment%20Act.p df

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fine upto Rs. 50,000, and on repetition of the same offence, could result in punishment being doubled and/or cancellation of registration of the entity or revocation of any statutory business licenses. Herein, a fine should be prescribed, as revocation of license will inflict injury on unrelated and innocent parties associated with the business of the employer as well.

CONCLUSION

It is certain that many victims will shy away from the publicity, the procedures, the delay and the harshness in the criminal justice system, this alternative structure and process is welcome, but needs much alteration. Helping the victims to make informed choices about the different resolution avenues, providing trained conciliators, settlement options by way of monetary compensation, an inquisitorial approach by the Committee, naming the victim by use of words like complainant etc. and not using her actual name and in-camera trials are some areas of improvement. Apart from this, we need something else which the legislation cannot provide- the mindset to understand the fears, compulsions, and pressures on women victims. The legal concept and test of a ―reasonable man‖ should give right of gender to that of a ―reasonable woman‖ as well.16

The critical analysis made in this research paper presents the quandaries posed by the Sexual Harassment Act, such as various sections of the community will be grossly affected by the over-imposing nature of the Act, primarily the vast increase in the burden of employers, as outlined. The legislation appears to be further excessive in the redressal mechanisms which it has established by leaving short-comings in the powers and functions of these non-judicially equipped bodies. Moreover, some provisions could have been more leaning to the female victim, such as the provisions for conciliation and punishment for false or malicious complaints.

16 http://www.thehindu.com/opinion/op-ed/protting-women-at-workplaces/article5483861.ece

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The loopholes in the particular provisions have been already identified in this research paper along with suggestions as to what could have been done more properly. The overall impression provided by the Act is that it is not well drafted, with sufficient reasonable foresight of the harsh effects of its implementation. These problematic provisions and unanswered questions present a conundrum for application of the Act, and remains to be clarified.

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MEDIA TRIALS: MISCARAGE OF JUSTICE IN THE NAME OF FREEDOM OF SPEECH

Aditi Singh* Yogesh Chhajer** INTRODUCTION John Stuart Mill said that as mankind is imperfect there are different opinions and different experiments of living which varies from person to person. This diversity of opinion is primarily relevant for all-round development and also for the healthy growth of a nation. In a democratic set up there has to be active participation of people in all affairs of their community and the state. It is their right to be kept informed about the current political, social, economic and cultural life as well as the burning topics and important issues of the day in order to enable them to consider forming broad opinion in which they are being managed, tackled and administered by the government and their functionaries.

Freedom of press has always been a cherished right in all the democratic nations of the world. It is supposed to guard public interest by bringing in light the misdeeds, failings and the lapses of the government and the other bodies‘ exercising governing power. In rapidly changing socio-economic conditions of a country like India, the role of media/ press is very prominent for it plays a vital role in molding the opinion of the society and it is capable of changing the whole viewpoint through which people perceive various events. Rightly, therefore it is often referred as the fourth pillar of democracy.

But with rights come certain duties, duty not to infringe other‘s rights. When the media oversteps its boundaries, by reporting certain news to the public in a ______

* Nirma University, Ahmedabad, Gujarat, India **Nirma University, Ahmedabad, Gujarat, India

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biased fashion, it would be checked under the restrictions imposed on the Right to Freedom of Speech and Expression. Sometimes media assumes the role of a judge and pronounces the verdict convicting the accused even before the court of Law could reach any conclusion. Media forgot their limits and give rise to a situation known as Media Trial. They should only portray the truth and help in bringing such cases into the notice of the court which are lost in the darkness rather than giving their own judgment.

HISTORY OF THE PRESS

The history of the Indian press begins with the coming of the Portuguese bringing the first printing press to India in 1557. In 1684 the English East India Company set up a printing press in Bombay1. The demand for constitutional guarantees of human rights including freedom of press for Indians was made in 1895 popularly called the Swaraj Bill, initiated by Lokmanya Tilak. Events in the history of India like nationalist agitation, rise of Muslim nationalism and the Partition of Bengal have increased newspaper readership. British Government took various steps to curb the participation of the press in the national movements as well as movements for social emancipation, reform and amelioration.

The Censorship of the Press Act, 1799

Lord Wellesley imposed policy on the publisher to submit all material for pre censorship to the Secretary or the Government. He feared that French invasion of India might have the effect of weakening his influence on Indians.

1 History of Journalism, Available at httpwww.universityofcalicut.infosylHISTORYOFJOURNALISM.pdf, Last visited on 12.07.2014

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The Liberation of the Indian Press, 1835 Lord William Bentinck adopted a liberal attitude towards the press but Adams‘ press regulations passed in 1835 were not revoked. This resulted in the rapid growth of newspapers in India till 1856.

The Licensing Act, 1857 The Government again due to the revolt of 1857 imposed licensing restrictions on the press in addition to the existing registration procedure laid down by the Metacalfe Act.

Vernacular Press Act, 1878 Also known as the Gagging Act was a highly controversial measure taken by the British Government to repress the seditious propaganda through vernacular newspapers in a way repressing the freedom of vernacular press. This step was taken to prevent the press from inciting feelings of dissatisfaction against British. If still the offence occurred, they can seize the press equipments. No appeal could be made to a court.

The Indian Press (Emergency Provisions) Act, 1931 This Act gave powers to the governments in suppressing the propaganda for the civil disobedience movement, 1932.

The Press (Objectionable Matters) Act The Act empowered the Government to demand security from newspapers for publication of objectionable matter. The government could also seize and destroy unauthorized newspapers and presses. The Act remained in force till 1946.

So as we see from above acts that freedom of press was continuously infringed and was restricted in some way or another in the British arena.

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CONSTITUTIONAL PROVISIONS Their experience of series of repressive measures during British rule convinced our national leaders of the immense value of the freedom of speech and expressions which needs to be guaranteed under the Constitution of India. Freedom of speech and expression means the right to express one‘s own convictions and opinions freely by means of mouth, writing, printing pictures or any other mode. It thus includes the expression of one‘s ideas through any communicable medium or visible representation, such as gesture, signs and the like2. Man has the desires to do many things but in a social sphere his desires have to be in consonance with other member‘s desires. Thus the above right does not exist in vacuum. Also we know Power corrupts and absolute power corrupts absolutely‖ therefore the freedom of speech is curtailed by reasonable restrictions imposed by clause (2) of the Article 19 which includes public order, decency or morality, friendly relations with foreign States, defamation or incitement to an offence, obscenity, security of the State, and contempt of court. In words of Felix Frankfurter, ―Without a free press there can be no free society. Freedom of the Press, however, is not an end in itself but a means to the end of a free society.3 But Unlike American Constitution, where freedom of Press was not recognized initially, and was inserted only after the First Amendment of the American Constitution which prohibited the U.S. Congress from making laws which infringes the freedom of press, the Indian Constitution does not make a

2 Prateek Shanker Srivastav, Fourth Estate In The Constitutional Ambit- Analyzing Free Speech Under Democracy, Available at httpwww.rmlnlu.ac.inwebjprateek_shanker_srivastava.pdf, Last visited on 12.07.2014 3 Priyanka Mittal, Trial By Media Growing Influence of Media over Implementation Of Law, Available at httpijlljs.intrial-by-media-growing-influence-of-media-over-implementation-of- law-priyanka-mittal-final-year-campus-law-centre-faculty-of-law-delhi-universityprint=pdf, Last visited on 12.07.2014

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specific or separate provision for the freedom of the press under Article 19 (1)(a).

However the Supreme Court in a number of judgments has recognized that freedom of speech and expression also includes freedom of press and bestowed the power in media to the right to acquire and impart ideas and information about matters of common interest and fearlessly convey the public about the happenings of the society as it is the heart of social and political intercourse.

MEDIA TRIAL AND ITS EFFECTS The history of freedom of speech and expression has at all times been punctuated by the difference between two situations – freedom of expression and the freedom after expression.4 A string of high-profile cases, sensationalized by the media due to Gross misuse of technological advancements, and the unhealthy competition in the field of journalism has created a tussle between freedom of speech and expression of the media and the responsibility of the Judiciary to conduct fair trial, prevent contempt of court and protect the rights of the accused. Media nowadays is playing an important role in the Governance of the country. But somewhere it has crossed its boundary and qualitative development has not kept step with quantitative growth which has led to Media Trial. Media trial is a situation where media conducts a separate investigation, builds a public opinion against the accused, conducts the trial of the accused and passes the verdict even before the court passes its judgment. A person is found guilty even before the trial takes place. Media through means of communication like publications, television, radio and internet conveys public opinion in favor of one side or the other where the accused is perceived

4 Kabir, supra

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guilty not only against the individual but also against the society, creating a widespread perception of guilt regardless of any verdict in a court of law. Cases of horrendous nature usually involving high publicity coupled with well staged drama and influential person catches the attention of media quickly. The media carries that verbatim without making the slightest attempt to check the veracity of that ostensibly absurd claim5. The problem does not lie in media‘s exposing the lacuna of a bad investigation by cops, or mal- performance of the duties ordained to the civil servants but the eye-brows start to raise when the media ultra vires its legitimate jurisdiction and does what it must not do6. Under Article 19(1) (a) of the Constitution, the rights of the freedom of Press have been recognized as Fundamental Rights and under Article 21 of the Constitution the accused/suspect and under trial and the civil litigant have Fundamental Right to have a free and fair trial7. The problem arises when rights of equal weight clash with each other. The media trial has now moved on to media verdict and media punishment which is no doubt an illegitimate use of freedom and transgressing the prudent demarcation of legal boundaries and thus violating the rights of an accused, victims, their family members and most importantly the judiciary.

A very important Fundamental Right is provided to people living in India under Article 21 of Indian Constitution which states that ―No person shall be deprived of his life and personal liberty except according to the procedure established by law‖. Article 21 has been widely interpreted by the courts. The word ‗life‘ used here means something more than animal existence. It includes right to live with dignity8, right to livelihood9, right to reputation, right to privacy10, etc.

5 History of Journalism, supra 6 Trial By Media Prejudicing The Sub – Judice, Available at httpwww.rmlnlu.ac.innotice_pdfdevesh_article.pdf, Last visited on 15.07.2014 7 Maneka Gandhi Vs Union Of India (1978) SCR (2) 621 8 Bandhua Mukti Morcha v. U.O.I. (1984) 3 SCC 161

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The Supreme Court in R. Rajagopal v. State of Tamil Nadu held that ―A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters. No one can publish anything concerning the above matters without his consent, whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damage‖.11 From the above statement it is very clear that media due its unregulated freedom is violating the accused‘s right to privacy. Showing pictures of the accused in negative light, publishing information that has a bearing on his character creates a negative reputation in the eyes of public thus violating the accused‘s right to reputation. Even if he is acquitted after the trial, it does not change the public‘s opinion about him which amounts to double victimization of the accused; by the media as well as the judiciary. Every person has a right to get himself represented by a lawyer of his choice as provided under Article 22 of Indian Constitution. But when a lawyer takes up the case of an unpopular accused person involved in a high profile case, he is subjected to public derision for supporting an accused who is already been convicted by media in the eyes of public. For instance a senior editor of the news channel CNN-IBN called the decision of the Advocate Mr. Ram Jethmalani to represent Manu Sharma in Jessica Lal Murder Case an attempt to ―defend the indefensible‖ and posed him as a villain. Media has now reincarnated itself into a ‗public court‘ (Janta Adalat) and has started interfering into court proceedings. Our legal system works on the golden principles of ‗presumption of innocence until proven guilty‘ and ‗guilt beyond reasonable doubt‘. Every accused has the right to fair trial which

9 Olga Tellis V. Bombay Municipal Corporation (1985) 3 SCC 545 10 R. Rajgopalan V. State of T.N (1994) 6 SCC 632 11 G.N Ray, Jonx M. Garon, Madabhushi Sridhar, akshmi Kruttika Vijay, Zehra Khan, Harini Sudershan, Lalitha Gadepally, Media Law Review, Available at httpwww.nalsar.ac.inpdfJournalsMedia Law Review_2010.pdf, Last visited on 12.07.2014

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derives its authority from the Article 14, 20 and 21 of the Constitution of India. In the case of Zahra Habibullah Sheikh v. State of Gujarat12, the Supreme Court explained that a ―fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated‖. Media trial not only violates the rights of an accused but also compromises the rights of witnesses, victim, family of the victim and accused. The act of Media publishing past sexual history of a prosecutrix into the newspaper in cases especially related to rape and sexual assault makes the victim to remind of the terrible day when the incident took place. Such act does not heal the wounds of the victims instead keep them fresh. They are treated as a ‗television item‘ keeping at stake the reputation and image of that person. Also the identity witnesses come into the limelight there are chances that the statements given by them may pose danger to their lives and there can be pressure both from the accused as well as from the police.

Sec. 25 of the Indian Evidence Act, 1872 categorically prohibits the confession to the police as admissible in law but media due to their ignorance comes to conclusive determination of the accused‘s guilt represents confession by the accused even made to the police. Such confession though inadmissible in law, becomes sufficient to taint the accused with guilt in the eyes of ordinary people.

While doing Media Trial, the media do publications which might affect the reasoning of the Judiciary and thus amounting to Contempt of Court. The Contempt of Courts Act, 1971 says that publications which interfere or tend to interfere with the administration of justice amount to criminal contempt and to prohibit it if reasonable restrictions under this Act are imposed on freedom of

12 AIR 2004 SC 3467, 2004 (2) ALD Cri 1, 2004 CriLJ 2855

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speech, then such restrictions would be valid. Such publications would be contempt only if a criminal proceeding is actually pending i.e. if charge sheet or challan is filed or summons or warrant are issued by the Court by the date of publication13. Before 1971, publications made before the arrest of a person would also amount to contempt though in Surendra Mohanty v. State of Orissa however held that filing of an FIR could not be the starting point of pendency of a criminal case. The Sanyal Committee (1963) recommended that the date of ―arrest‖ should be treated as the starting point of pendency of a criminal proceeding but not the filing of an FIR. It stated that prejudicial publications could be criminal contempt if criminal proceedings were ‗imminent‘. The Sanyal Committee was reviewed by a Joint Committee of Parliament in 1969-70 (Bhargava Committee) and decided to omit all references to arrest as the starting point of pendency of a criminal proceedings and imminent proceedings because the word ‗imminent‘ was vague and may unduly restrict the freedom of speech. Such argument ignored the judgment of A.K. Gopalan v. Noordeen where the Supreme Court fixed the date of arrest as the starting point for treating a criminal proceeding as pending so there remained no vagueness in the law14. And thus the Contempt of Court Act, 1971 came into existence. The purposes of the law of contempt is (i) to enable the parties to litigation and the witnesses to come before the Court without outside interference; (ii) to enable the Courts to try cases without such interference; and (iii) to ensure that authority and administration of law are maintained15. The publications made by the media create an atmosphere of prejudice and an unconscious pressure on the jurists. They are aware of the public opinion created by the verdict of

13 Law Commission Of India, 200th Report on Trial By Media Free Speech And Fair Trial Under Criminal Procedure Code, 1973, Available at httplawcommissionofindia.nic.inreportsrep200.pdf, Last visited on 16.07.2014 14 (1969 (2) SCC 734) 15 Attorney General v. Times Newspapers Ltd., 1974 AC 273.

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the Media which somewhere affects their power of reasoning which might interfere with the due course of justice thus amounting to contempt of court. Such a state of mind cannot be proved by direct and positive evidence but some judges have accepted that publications which are prejudicial to a suspect or accused may affect Judges also subconsciously because after all they are all human beings. As said by Cardozo, one of the greatest Judges of the American Supreme Court, ―the great tides and currents which engulf the rest of men, do not turn aside in their curse and pass the Judges by‖16. The contention of the judiciary is that no journalist can assume the role of an investigator, in a pending case. The law has established a procedure for conducting the trial of the accused and if anyone else performs this duty, it will lead to the miscarriage of the justice. Such acts affect the life of the person after his acquittal because it takes time for him to rebuild his lost image in the society.

THE ARUSHI MURDER CASE The Arushi Murder case sets a good example of Media trial. This case is about the mysterious murder of a young girl namely Arushi in her own house and also the murder of Hemraj, a domestic servant. The parents of Arushi Talwar that is Rajesh Talwar and Dr. Nupur Talwar were held to be the prime suspects. Recently the Supreme Court dismissed the appeal initiated against an order dated 18th March, 2011 of the Allahabad High Court whereby the High Court on a petition under Section 397/401 of the Criminal Procedure Code challenging the order dated 9th February, 2011 passed by Special Judicial Magistrate (CBI), Ghaziabad refused to interfere with Magistrate's order of taking cognizance of the offences under Sections 302/34 and 201/34 I.P.C.

It appears that the said murder of the raised some kind of public uproar. This case is a clear cut example of media trial because the accused was socially stigmatized even when the case was under consideration before the trial court.

16 Law Commission Of India, supra

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Media reported colorful and baseless assumptions made by the police force and CBI just to have a daily entertainment for the public and a TRP generator for the media. The Talwar couple was rumored to be involved in wife swapping and too composed as they did not cry as per expectations. Also just on the mere speculation Mr. Rajesh Talwar was accused of having an illicit relationship with a lady named Anita Durrani. Not only this, the media also created a negative image about the victim herself by alleging that since she was found in a compromising position with the Hemraj. The newspapers were flooded with the transcripts of the deceased girl‘s emails and casting aspersions on her character.17 Insensitivity shown by the media in providing reportage to every detail and rumor about the case using different channels, blogs and internet sites was shocking. The worst part is that the media took pride in the fact that they were keeping the public abreast of such a monstrous event which was read to the public, day by day splashed with spiced ingredients to stir the emotions of the public. There was a wide gap between what was being reported and the judicial process. The Talwar couple was held responsible for the murder of Arushi and was awarded life imprisonment. Was such decision unbiased? Did Arushi get justice? One cannot say for sure but a chance at the truth surely got lost in between Judiciary and Media. If they had been acquitted, would the opinion of the public changed about them? It might just have been better to put them behind bars rather than facing the wrath of living in a world that no longer belongs to them. Such is the power of the media18. And this is Media Trial where Media‘s verdict is given preference to Judiciary.

17 G.N Ray, Jonx M. Garon, Madabhushi Sridhar, akshmi Kruttika Vijay, Zehra Khan, Harini Sudershan, Lalitha Gadepally, Media Law Review, Available at httpwww.nalsar.ac.inpdfJournalsMedia Law Review_2010.pdf, Last visited on 12.07.2014 18 Mittal, supra

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CONCLUSION In this era one cannot simply remain confined to the boundaries of the traditional media. Therefore it is justified that the media is expanding its dimensions as it makes us aware of the current scenario. The media has to be properly regulated by the courts. The most suitable way to regulate the media will be to punish those who violate the basic code of conduct i.e. contempt of court. The media cannot be allowed freedom of speech and expression to an extent as to prejudice the trial itself. Every right comes with a reasonable restriction and this has to be realized by the media. The only job of the media is to inform about claims and counter claims relating to an alleged criminal offence committed by an accused. It should represent both sides, reflect the actual accurate and fair scenario rather than giving a biased, misleading, inaccurate, graceless, baseless and distorted opinion and branding the accused as a criminal before he or she has been convicted of a crime. Media should not overlook the golden principles of presumption of innocence until proven guilty and guilt beyond reasonable doubt. Media should realize their power and work in a positive direction for it can bring social, economical and political changes.

REFERENCES

1. Justice Altamas Kabir, What Makes A Good Judge, Available at httpcalcuttahighcourt.nic.insesquival2.pdf, Last visited on 11.07.2014 2. History of Journalism, Available at httpwww.universityofcalicut.infosylHISTORYOFJOURNALISM.pdf, Last visited on 12.07.2014 3. Constitutional law of India, 50th ed, J.N.Pandey , Central Law Agency, Allahabad 4. Prateek Shanker Srivastav, Fourth Estate In The Constitutional Ambit- Analyzing Free Speech Under Democracy, Available at httpwww.rmlnlu.ac.inwebjprateek_shanker_srivastava.pdf, Last visited on 12.07.2014 5. Trial By Media Prejudicing The Sub – Judice, Available at httpwww.rmlnlu.ac.innotice_pdfdevesh_article.pdf, Last visited on 15.07.2014 6. Law Commission Of India, 200th Report on Trial By Media Free Speech And Fair Trial Under Criminal Procedure Code, 1973, Available at httplawcommissionofindia.nic.inreportsrep200.pdf, Last visited on 16.07.2014

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7. Santa Monica, The Media And The Criminal Justice System: Fair Trial v. Free Press An International Perspective, Available at httpicclr.law.ubc.casitesicclr.law.ubc.cafilespublicationspdfsFairVSFree.pdf, Last visited on 15.07.2014 8. Justice K.G. Balakrishnan, The Fourth K.S. Rajamony Memorial Public Law Lecture on The Constitution, the media and the Courts, Available at httpsupremecourtofindia.nic.inspeechesspeeches_20089[1].8.08.rajamony.pdf, Last visited on 15.07.2017 9. Siddhartha Dash, Role of Media in Nation Building, Available at httporissa.gov.ine- magazineOrissareview2009Janengpdf50-51.pdf, Last visited on 16.07.2014 10. Furqan Ahmad, Human Rights Perspective of Media Trial, Available at httpwww.klri.re.kruploadfileAK21ALQ_200901_03.pdf, Last visited on 17.07.2014 11. Media In Peril, Available at httpcpadelhi.orgCPAimagesArchivesVol2.pdf, Last visited on 20.07.2014 12. N. Ram, The Changing Role of The News Media In Contemporary India, Available at httpwww.thehindu.commultimediaarchive00863Contemporary_India__863821a.pdf 13. Victoria Chioma Nwankwo, The Role Of The Media In Promoting Human Rights: An analysis of the BBC documentary, „Chocolate: the bitter truth‟, Available at httpmunin.uit.nobitstreamhandle100373500thesis.pdfsequence=1, Last visited on 14.07.2014 14. Anahita Mathai, Media Freedom and Article 19, Available at httpwww.observerindia.comcmssitesorfonlinemodulesissuebriefattachmentsissue53_ 1365505705338.pdf, Last visited on 15.07.2014 15. The Gambia: Freedom of Expression on Trial, Available at httpswww.google.co.inurlsa=t&rct=j&q=&esrc=s&source=web&cd=26&cad=rja&u act=8&ved=0CD8QFjAFOBQ&url=http%3A%2F%2Fwww.ibanet.org%2FDocume nt%2FDefault.aspx%3FDocumentUid%3D8853C396-E55A-4BFE-9E95-99C, Last visited on 20.07.2014. 16. Attorney General v. Times Newspapers Ltd., 1974 AC 273 17. Maneka Gandhi Vs Union Of India (1978) SCR (2) 621 18. Bandhua Mukti Morcha v. U.O.I. (1984) 3 SCC 161 19. Olga Tellis V. Bombay Municipal Corporation (1985) 3 SCC 545 20. R. Rajgopalan V. State of T.N (1994) 6 SCC 632

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ECONOMIC IMPLICATIONS OF NATIONAL FOOD SECURITY ACT

India‘s tryst with WTO with special reference to agricultural sub- sidies

Search for flexibility that can be brought within Price-Support Mechanism for developing countries and hunt for alternative schemes

Nayanika Ruia* Ankita Das**

INTRODUCTION

In India agriculture has been performed by many people since long time and agriculture add good economy to the country‘s revenue. By the good growth of agricultural products it also facilitates trade among countries and act as income for the farmers. So in support for the Indian farmers, WTO comes up with its plan where it ensure food security for the country and in making man food available to the common man at affordable prices. Moreover improving the financial health of Indian farmers and make him competent face global challenges. However in the present scenario subsidies are provided to the farmers which motivate them, if subsidies are withdrawn then global trade will collapse.

Historical context

By the 1980s, government payment to industrialized countries has caused large crops surplus which were unloaded to the government market by means

______

*Student, Symbiosis Law School, Noida

**Student, Symbiosis Law School, Noida

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of subsidies thus causing fall in the pries of food product. In the meantime global economy has entered the cycle of recession and has belief that opening of market can improve economy conditions can lead to new round of multilateral trade negotiation.

Agreement on Agriculture is an international treaty of World trade Organization which was negotiated during the Uruguay round of GATT and entered into force with the establishment of WTO in 1995.

The Role of WTO in Indian Agriculture:

India being one of the leading members of the WTO, and also one of the founder countries, with the help of WTO would be able to expand its exports of agricultural products within which the opportunities to globalize will increase. Earlier, within the first year of implementation of Uruguay Round Agreement and formation of the W.T.O International, the price situations use to change dramatically because of which the domestic prices turned out to be higher than the international prices which as a result made India an attractive market for the import of many agricultural commodities. This situation consequently, resulted in a wide spread decline in the agricultural export in India and also had a pressure on the domestic prices. The change in agricultural exports and imports post WTO proved that India can be made competitive in international market and the price of agricultural goods in the domestic markets can be improved by attaining food security and certain measures.

Agriculture: Fairer Markets for Farmers

When the original GATT was applied to the agricultural trade, it did not prove to be significant as it contained certain loopholes. For instance, it allowed various countries to use few non-tariff measures that included importing of quotas, and subsidizing. The agricultural trade became majorly distorted with the use of exported subsidies which were not normally allowed for the

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industrial products. Then, the Uruguay Round produced the first multilateral agreement which was dedicated to this sector. It was a significant step towards fair competition, order, and creation of a less distorted sector.

It was implemented for a six year period that began in 1995 (and is still being implemented by many developing countries under their 10-year period). The Uruguay Round agreement also included a commitment to continue the reform through various new negotiations. These were then launched in 2000; as required by the Agriculture Agreement.

The Agriculture Agreement: New commitments and Rules.

The objective of this Agriculture Agreement is to reform the trade sector and to make policies which are more market-oriented. This would improve the predictability and food security for importing and exporting in countries alike. The new commitments and rules majorly apply to:

Domestic support — includes subsidies and other programs, along with those that guarantee or raise farmers‘ incomes and farm gate prices.

Market Access — where various trade restrictions confront the imports

Export of subsidies and other methods that are used to make exports artificially more competitive.

The Agriculture Agreement allows the governments to support their rural economies, preferably through policies which lessen the distortion to trade. Some flexibility is also allowed in the way when commitments are implemented. Developing countries don‘t have to slash down or cut their own subsidies or lower their own tariffs as compared to developed countries, and plus they are also given extra time to complete their obligations. The least- developed countries do not have to do this at all. The special provisions that deals with the interests of countries which rely on imports for their food

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supplies, also pose a solution to the concerns of the least-developed economies.

The ―Peace‖ provision made within the agreement aims to reduce or eliminate the likelihood of challenges or disputes on agricultural subsidies.

Food: To EAT or to EXPORT?

As stated in the theory of free-trade proponents, the increase in trade and the decrease in government regulation as a result increases the food security and solve rural poverty is still an unanswered question. The results have not yet borne out this alleged theory because in general, the FTAA, CAFTA and the WTO were never meant to solve the global hunger and poverty issues. Moreover, in reality, the globalization of production of food represents the hijacking (unprecedented) of the global supply of food only for corporate profit. Underpinning the FTAA, CAFTA and the WTO is an ideology that all the food – from basic food grains and meat to vegetables and fruits – should be produced for the international export. Moreover, this is a drastic shift from the centuries-old practice in which each country produced the majority of food for its citizens based on need on local and small farms. Also, they only traded in certain products which could not be grown locally. But now, the drive towards attaining globalization of agriculture would put the transnational corporations in control of the entire food supply. Now, market forces, rather than the national policies which are set by democratically elected officials, would control the agricultural food systems. Also, under this scenario, each country would be able to produce only a few export commodities, by clearing local food productions, and small family farms, and by greatly compromising with the global food security. As a result, every human‘s right to food would now be dependent on the multinational corporations and markets, which would increase the risk of famine and hunger worldwide.

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Instance: The result led to protests and revolts by public, as it was seen that Activists protested the WTO's policies at the Ministerial, in September, 2003.

DIFFERENCE IN THE PERCEPTION OF AGRICULTURE BETWEEN INDIA AND DEVELOPED COUNTRIES

It has been found that there is wide difference between India and developed countries in the matter of agriculture and farm subsidy regime. Mostly developed countries treat agriculture as an economic and strategic necessity through subsidy programme. Food subsidy is considered essential in leading to food security. Thus it has been seen in the developed world that agriculture does not provide more than 10% of the national GDP and also provide lesser employment opportunities as compared to other sectors. So agriculture sector in not given much importance in the developed world.

India directly contrasts from the developed countries in this regime. Agriculture is given much importance in India as major population of the country dependent on agriculture for their livelihood. Infact we treat these subsidiaries mainly from monetary angle and evaluate them purely from monetary angle and consequently regard them as a burden on the Government without evaluating socio economic compulsion. Earlier many are of their view that all subsidies are financially undesirable, economically unjustifiable and morally indefensible hence they need to be discontinued. Since two-third of our population depend upon agriculture therefore it contributes 23% of the GDP. Inspite of this in some places agriculture is consider more as culture of people than an economic activity. Thus proper scrutiny should be done which impact agriculture in negative.

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DIFFERENCE BETWEEN AGRICULTURE AND FARM SUBSIDY REGIME.

People in India have a misunderstanding between this two. So let us examine one by one.

1First reason is that ignorance of agriculture. Generally people of higher class avoid discussion about agriculture policy and thus there is lack of knowledge pertaining to agriculture. It has been researched that our per capita food consumption is lowest in world consequently we need to increase our production as well as consumption. For this government has fixed a rate for purchase which is very high and makes it expensive and which is beyond the reach of poor people and consequently good number of population remain hungry constantly. We have a flawned notion in mind that if we will not been able to produce enough food in the country than we import food and fertilizer from other country and surplus production but practically things are not simple as it seems to be. Trade policies are stringent and in fact if we put these policies we will run the huge risk of food insecure front as whenever demand within the country will not meet we will depend upon others for our food and fertilizer which is not a good thing. So we should encourage elite classes to have debate and discussion on agriculture and find a better path way.

Second the next reason for poor subsidy regime is about total ignorance about the quantum, size and dimension of the subsidy regime that has been put in place by the developed countries. Generally the developed countries has small share of agriculture in their national income and therefore make it easier for them to subsidies their agriculture where as in case of India agriculture share is larger therefore even a small change in its share affect the whole economy.

1 http://www.iosrjournals.org/iosr-jhss/papers/Vol2-issue4/H0244046.pdf

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2Third reason is about the constituent of Indian farm subsidy regime. The constituent of Indian farm regime is food subsidy and fertilizer subsidy regime. People generally get confused and understand it as a whole and not as constituent. Thus the public feel that there is not cost benefit scheme and deter them from investment.

Fourth reason which can be seen that with the development of the country is moving from planned economy to market economy. Since 90‘s Government of India allow to Rupees to reflect market price in comparison with other currencies which resulted in depreciation in rate of rupees. As a result of this input cost of different sectors increases and to compensate this they increase the cost of the good and charges on customer however this could not be followed by Fertilizer industry because its price is being governed by Government of India. To compensate such a pricing policy government has brought subsidiary regime.

Fifth reason is about import about food grain to India. In the world there are number of countries which can import food grain to India at an inexpensive level. Thus it is argued that import of food grain can be taken at lower price than the administrative price but the question is that how international prices react to importer in the entry of India. Since peddler are not aware of these international pricing policies and if India declares herself food deficient nation then can import moderate food grain. Further assume that if India import even a small quantity of food grain then it has to pay attention on infrastructure of the country like port, roads and warehouses (to store them at appropriate places).

Sixth which is one of the most important reason is that in spite of India being a member of WTO from more than a decade but still India has not developed much as it should be. Even within the WTO we have achieve the best possible

2 http://agricoop.nic.in/programmescheme.html

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position on the issue concerning upon Indian Agriculture sector but this merely to show outside world and audience. In reality back home to India the situation is not very well and has not taken appropriate measure to mitigate old age problems of the farmers. In fact Indian farmer is facing multiple policy failure. As per survey 70% of the population are still under developed and yet to benefit any sort of development.

Seventh which is also very important reason is that number of suicides by Indian farmers and they are increasing day by day. Worst is that media has not highlighted these issues much and no other professional practice is under this much stress as agriculture. Thus it the duty of the government as well as other civilians to address the problems of farmers as the suicide of farmers is national ignominy whether these problems are caused by WTO related policy initiation or otherwise.

Finally eighth and the last reason is that agriculture is not represented well within the Indian polity. The policy for agriculture changes without adequate consultation with the stalk holder who holds the largest share in the economy. And Indian farmers, generally, being illiterate are never able to place their demand s and needs in a convincing manner and if their demand has not been fulfilled, farmers or their representatives stir to strike or agitate without clearly articulating their position. Thus lack of expression gives the chance to the government to thrust policy of farming and agriculture on the gullible farmers.

PRICE SUPPORT MECHANISM FOR DEVELOPING COUNTRIES

3For the developing countries DOHA DECLARATION has been brought up in November 2001.Most of these involves negotiations, other work includes actions implementation, analysis and monitoring.

3 http://www.theguardian.com/global-development/poverty-matters/2013/nov/27/farming- subsidies-distort-advantages-food-insecurity

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 IMPLEMENTATION OF RAISED ISSUES

The developing countries raise certain issues to implement in WTO current agreement arising from Uruguay round negotiation.

To handle the issues of developing countries members gave 50 decision of clarifying the obligation with respect to issues. Agreement on these points required hard bargaining between negotiators over the course of nearly three years.

 AGRICULTURE

Negotiations in agriculture mainly start from 2000 under article 20 of WTO agriculture agreement. These negotiations start implementing but also certain deadlines were given to complete it. The declarations also reconfirm long term objectives of the WTO which is to establish fair and market oriented trading system. The program also given out certain rules and certain commitment have been made with the government for the protection of agriculture.

The declaration made special treatment for the developing countries throughout the negotiation. They were given more time so that they can properly understand the policy of WTO. Its main aim is to enable developing countries to meet their needs.

Moreover WTO also encourages developing countries to take other matters like protection of human, plant, animal health but if one country starts any policy then it should be uniform throughout the country and not just for name sake.

4WTO also took up the matter that trade policies are uniform and free from barrier so that it encourage more developing countries to participate. Trade barrier prevent the developing countries to participate in trade. Moreover it

4 http://www.thehindubusinessline.com/industry-and-economy/agri-biz/farm-subsidies-india- wants-changes-in-wto-formula/article5355188.ece

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should also be noted that unfair trade practices should not be adopted. WTO should take these issue strictly and should punish the defaulters.

 INDIA‟S TERM WITH WTO

5India is not being very happy with WTO policies because it has stated that only four years will be provided to developing countries for the subsidy policy after that it will be evaluated how country has come up with the development so India should gear up for the full implementation.

ALTERNATIVES WHICH ARE AVAILABLE WITH THE DEVELOPING COUNTRIES

Reducing the “Barriers” to Trade in Agriculture

Certain programs that have helped keep the market prices above a certain price floor, that is a minimum price over the cost of production that farmers need in order to survive include have been established. These include the Global agricultural policy which is used to gear towards maintaining stability in the global markets. Some Supply management programs, also called as commodities agreements, have helped in maintaining production around the same as demand, so that the farmers‘ don‘t produce an oversupply which would cause prices to fall/collapse. In addition, most countries have promoted their own local economies by protecting the domestic production from foreign competition in the markets. Most countries maintain certain taxes on foreign imports, which are called tariffs, as well as they outright limits on the quantities of the foreign imports, which are called quotas, in order to promote local economic development. This has mainly been followed in the agricultural sector, where the local food production is a key to food sovereignty.

5en.wikipedia.org/wiki/Subsidies_in_India

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The impact and aim of the WTO and other free trade agreements in agriculture has been to eliminate so-called ―barriers to trade,‖ such as price controls, and tariffs, supply management and quotas, while maintaining and promoting practices that favor multinational corporations, such as market concentration and subsidies.

Gaining “Market Access”

The stated goal of all agri-business interests in the ‗free trade‘ negotiations is to eliminate the tariffs and the quotas so that they can gain access to the foreign markets for their products, called ―market access.‖ Also, since most of the agribusinesses are from rich countries, the market access generally benefits only those corporations that are at the expense of small farmers in poor countries. Nonetheless, many developing countries also have strong agribusiness sectors. They negotiate market access by demanding an elimination of the rich countries‘ quotas and tariffs.

For example, 6these countries, led by, South Africa, Brazil and India, have a strong negotiating bloc in the WTO, and have succeeded in raising the issue of market access as a high priority in the negotiations. Moreover, in fact, the negotiations in the FTAA broke down on access to the U.S.A for the Brazilian soy, beef orange juice, and sugar exports. Where, countries like Brazil argue that they need the income from the market access for agri-business products in order to produce income to pay their foreign debts. On the other hand, the majority of the developing nations import more food as compared to what they export, so thus, market access is not a primary issue here. Also, small and independent farmers from both rich and poor countries are less concerned about exporting food as compared to their high concerns of

6 http://www.globalexchange.org/resources/wto/agriculture

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ensuring adequate prices for local production. So thus, the primary threats to the local food production, along with the addition of the forced abolition of quotas and tariffs, are unfair subsidies and market concentration which have led to global crisis in illegal dumping and commodity prices.

Eliminating „Tariffs‟

One of the major targets of the free trade liberalization is ‗tariffs‘, in other words, taxes on imports. Majority countries maintain high taxes/ tariffs on agricultural products which are imported, in order to protect their local industries. The imported product would become more expensive than the local product, if an import has a tax on it and that the local product doesn‘t. For example, Mexico, in order to protect its small family corn farmers against the flood of cheap imports from the industrialized countries, has always maintained high tariffs on the corn imports. This is a basic strategy which is used by governments all around the world in order to help guarantee food security to all through local food production and promote the country‘s local economy over the foreign competition. Nonetheless, much of the negotiations in free-trade agreements involve reducing the tariffs.

Eliminating Quotas

One of the top goals of free-trade proponents is also to eliminate quotas, or to limit the total amount of imports from a particular commodity. For instance, in order to protect the USA sugar industry from the foreign competition, the U.S.A maintains quotas on the amount of sugar that companies can import. Whereas, mostly and many small, agricultural nations maintain quotas on some basic products like corn, rice, or other basic grains which are essential to food security and the livelihoods of the rural populations. For the same, the least-developed countries eliminate tariffs or quotas that put their rural

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majority at a risk of starvation and hunger as they eventually lose their source of income and access to their own food production. On the other hand, least- developed nations have formed an alliance within the WTO to advocate the exemption of the products that are vital to food security. This is called Strategic and Special Products, derived from quota and tariff elimination.

Subsidies

Aside from quotas and tariffs, trade agreements also address subsidies. Subsidies are the government payments made to the producers. 7In the year 1996, the U.S Congress had passed a farm bill which eliminated the key price supports and supply management programs, thus, drastically reducing the income of the farmers. As the agricultural prices began to rise after 1998, Congress responded with an ―emergency legislation‖ year after year in order to send farmers, government payments (subsidies) so to prevent the wholesale collapse of the rural economy. The European Union also heavily subsidizes its agricultural production. Exporting of subsidies is supposed to be illegal under the WTO and other free trade regimes. Whereas, on the other hand, the rich countries, have largely won certain exemptions for the types of subsidies they use, while prohibiting the types of subsidies which are used by developing countries. The developing countries usually don‘t have enough money to subsidize their farmers as compared to developed countries in general. Instead, they are more reliant on using other mechanisms such as imports of tariffs, quotas, and price supports. But, these are the very mechanisms which the pro-corporate policies of FTAA, the CAFTA and the WTO prohibit. Subsidies provide many huge benefits to corporate agri-businesses by allowing this business‘s to buy crops from the small farmers at a price far below the cost of production, also while allowing them to sell at market rates.

7 http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm3_e.htm (or) http://www.globalexchange.org/resources/wto/agriculture

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Moreover, while subsidies provide some relief to some struggling family farmers, they are still not enough to make up for the low commodity prices, and contribute to the erosion of small farms in certain counties e.g. USA, increasing market concentration.

CONCLUSION

So, this is what we have seen in the paper; how subsidies act as ban or boon for the country. If policy making is done in a proper manner then a country will definitely progress. Even the role of WTO is also very important for the country. But the country before accepting its policy, must fully understand what policy WTO is talking about. Also, before trading i.e. importing or exporting, the country itself should take appropriate steps so that it doesn‘t exploit its own farmers. In accordance with the WTO agreements and policies, with proper alternatives a country can ensure food security for its farmers. Flexibility in the price-support mechanisms and agricultural subsidies can also benefit the developing countries. Henceforth, it is important to modulate and regulate certain policies regarding agri-businesses and trade so that food security not only for farmers but for the citizens and the country can be attained.

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IS UNILATERAL SECESSION JUSTIFIED UNDER INTERNATIONAL LAW?

Gagan Goyal* Megha Sharma**

1.0 INTRODUCTION

Right to unilateral secession is considered to be one of the debatable issues of international law as in most of the cases right to secede is not justified under international law. As being one of the oldest principles under international law, courts have recognized under what circumstances unilateral secession is legal. Such as:

(1) People residing in territories should be subject to decolonization.1 (2) Constitution of parent state should permit it.2 (3) People residing in a territory suffered a Human Right violation and succeeded after 1945 only.3 (4) There are no effective remedies available under national or international law if above mentioned condition is met.4 Secession is the most common way of establishing new states; the expectation is that a sound theory of secession will inform a normative-based international legal practice of state recognition.5

*School of Law, Christ University, Bangalore, India **School of Law, Christ University, Bangalore, India 1 Anna Stepanowa, International law on legality of the Crimea secession, Beyond the EU Thinking Europe Outside the Union, April 15,2014 http://beyondthe.eu/international-law- crimea-secession/ (last Accessed on August 25th,2014) 2 Id. 3 Id. 4 Mariana Olaozola, Secession, statehood and Recognition: Normative bases For International Law, Penn State Journal Of International Affairs, at p-67 http://psujia.files.wordpress.com/2012/04/secession_final.pdf (last Accessed on 25th August,2014) 5 Id.

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With the recent secession of Kosovo from Serbia and secession of Crimiea from Ukraine left the debate over validity of unilateral secession as valid standpoint for state recognition and left the question open for foreign officers, academicians, scholars. The current paper will evaluate the validity of unilateral secession and look at how unilateral secession can‘t be used by any state as a matter of facts to be succeeded in another state territory.

Part I of paper deals with the brief history and overview secession of Crimea and Kosovo. Part II examines the unilateral secession in each case and analyses the differences between the two. Part III will discuss that Kosovo does not set a precedent and observe justification for that.

2.0 HISTORY AND OVERVIEW

Before dealing with comparative analysis related to unilateral secession in cases of Crimea and Kosovo, this paper will first give a brief overview for each case and the reasons behind its secession.

2.1 OVERVIEW OF CRIMEA

At present, the Republic of Crimea being situated on the Crimean peninsula is internationally disputed federal subjects of the Russian Federation.6 Initially, Crimea was the part of Ukraine and wanted to join Russian federation due to influence of various factors like historical background or because of the Russian‘s influence in the region7. However, the parliament of Crimea on 6th March 2014 adopted a resolution to secede from Ukraine and to join the Russian Federation.8 On 16th March 2014 through the same resolution the Crimean parliament concerning its integration with Russia had a discussion

6 Alexander Dantec, THE CRIMEAN ANNEXATION: A TURNING POINT IN RUSSIAN FOREIGN POLICY?, Republic of the East, June 26, 2014, http://russia-eastern- republic.com/2014/06/26/the-crimean-annexation-a-turning-point-in-russian-foreign-policy/ (Last Accessed on 25th August 2014) 7 Id. 8 Crimean Secession: No Right to Divorce, Cambridge journal of international and comparative law, 09 March 2014, http://cjicl.org.uk/2014/03/09/crimean-secession-right- divorce/( last accessed on 24th August 2014)

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with it authorities.9 Owing to the Crimean parliament going beyond the limits of its power, this secession referendum was criticised by the Ukrainian central authorities and subsequently the referendum was declared to be unlawful and void by the acting President. Thereafter, the opinion of the constitutional court of Ukraine was sought on this point and it was held to be contrary to the Ukranian constitution.10

On the contrary Russian parliament on the request of the Crimea and as a result of referendum started to work upon a bill by allowing an entity to join Russian federation, as because Ukrainian Government was incapable of concluding an international treaty in the matter of Crimea.11 The voters at this point were left with two options, either to join the Russian federation as a Russia federal subject or to return to the Crimean constitution 1992 and be a part of Ukraine. And with the 96.7% of votes in the favour of joining Russian federations, decided to secede from Ukraine unilaterally. Right to unilateral secession signifies that when on the basis of people‘s right to self- determination, when minority people are accorded right to separate part of their territory from the parent state.12 However, on the basis of Declaration of Principles of International Law, the ICJ in the Kosovo‘s case and the supreme court of Canada in Quebec case observed that in modern international law unilateral secession of ―sub-states‖ is neither prohibited nor allowed.13

9 Id. 10David m. Herszenhorn, Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch, The new york Times, March 16 2014, http://www.nytimes.com/2014/03/17/world/europe/crimea-ukraine-secession-vote- referendum.html?_r=0 ( last accessed on August 24th 2014) 11 Roderick Braithwaite, With irresponsible talk of EU and NATO membership, the West has badly mishandled relations with Ukraine and with Moscow,Softpanorama,March2014, http://softpanorama.biz/Skeptics/Political_skeptic/Fifth_column/Color_revolutions/Euromayd an/Bulletin/euromaydan14_03.shtml (last Accessed on August 26th 2014). 12 Supra note -4 13 International law and legality of secession in Crimea, Cambridge journal of international and Comparative law,20 April 2014, http://cjicl.org.uk/2014/04/20/international-law-legality- secession-crimea/, (Last Accessed on August 23rd 2014)

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However On April 3, 2014, Crimea became part of Russia's Southern Military District.14

2.2 OVERVIEW OF KOSOVO

Kosovo is commonly known as Balkan s and is situated in south eastern region of Europe. Prior to late 1980s Kosovo as an autonomous province of Serbia has exercised important regional self-governance functions.15 The Serbian leadership thereafter, undertook number of strict measures to curb the hue and cry throughout Kosovo led by paramilitary groups in response to Albanian separatist movement. These measures led to removal of Kosovo status as an autonomous province and the civil and political rights enjoyed by Albanian population was also taken away.16 Later in 1999 in response to the separatist movement in Kosovo, staged by Kosovo liberation Army (KLA), the former Serbian president engaged in campaign of oppression.17 In pursuance of series of airstrike on the territory of Serbia led to the withdrawal of Milosevic‘s forces from Kosovo. Through U.N Security Council resolution 1244 it was decided that Kosovo was to be administered by United Nation Mission in Kosovo (UNMIK) and its safety to be guarded by NATO led military force.18 Due to the several differences among the Serbian leaders, Kosovar representatives European Union (EU) and UN representatives, formal consensus was not reached that whether Serbia should sacrifice Kosovo or

14 Republic of Crimea, Sevastopol become part of Southern Military District Republic of Crimea, Sevastopol become part of Southern Military District, The Voice of Russia ,3rd April,2014 http://voiceofrussia.com/news/2014_04_03/Republic-of-Crimea-Sevastopol-become-part-of- Southern-Military-District-4990/ (Last Accessed on 24th August 2014) 15 Milena Sterio, The Case of Kosovo: Self-Determination, Secession, and Statehood Under International Law, American Society of International Law, Vol. 104, (March 24-27, 2010), pp. 361-365 http://www.jstor.org/stable/10.5305/procannmeetasil.104.0361 (last Accessed On August 22nd,2014) 16 Id. 17 Id. At p-3 18 Accordance with international law of the unilateral declaration of independence in respect of Kosovo, International court of justice, Reports of judgments, Advisory opinions and orders, 22 July, 2010 Para 57-58

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abstain from using it forces to prevent break up of Kosovo from Serbia.19 Thereby, United States and twenty other European Union Countries supported Kosovar‘s unilateral declaration of independence. After the declaration of independence was issued, the secretary general had been informed by Serbia about adopted decision, that declaration represented a forceful and unilateral secession of a part Serbian territory, and no legal effects had been shown either in Serbia or in the international legal order.20 This Kosovo separation from Serbia represents secession in the history of international law. Though the principle of unilateral secession is not acceptable under international law as a common practice for acknowledgement but even then Kosovo secession from Serbia was regarded to be peaceful.

3.0 COMPARATIVE ANALYSIS

Secession can be defined as the action of withdrawing formally from membership of a federation or body, especially a political state. Secession is discouraged heavily under international law21, but According to the Declaration on Principles of International Law and the Vienna Declaration and Programme, when secession is exercised by people than it is deemed to be justified. “Under colonial or other forms of alien domination or foreign occupation” and/or is set by the Constitution (or applicable national law) of the parent state concerned.22

Kosovo and Crimea both represents unilateral secession and Kosovo was cited as a precedent in case of Crimea‘s secession,23 but secession in both the above

19 Id. At para-59 20 Id. Para-77 21 Oxford dictionary 22 Kateryna Dronova (Berkeley, CA), Crimean secession: self-determination with a false bottom, VoxUkraine, Thursday, March 20, 2014, http://voxukraine.blogspot.in/2014/03/crimean-secession-self-determination.html (Last Accessed on August 24th, 2014) 23 Citing Kosovo precedent, Crimea's parliament declares independence from Ukraine ahead of referendum, Tue, 11 Mar 2014, http://www.sott.net/article/275441-Citing-Kosovo- precedent-Crimeas-parliament-declares-independence-from-Ukraine-ahead-of-referendum ( last Accessed on August 23rd 2014)

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mentioned cases is entirely different. In the former case secession was held to be peaceful and legitimate and in the latter one it was held to be illegal, though several justification were given for justifying the act of secession of Crimea from Ukraine.

Firstly, Kosovar‘s independence was neither sought under a post-Yugoslav or Serbian constitution nor under any national constitution at. Following the NATO led military force, the UNMIK; UN Security Council Resolution 1244 constituted the binding legal order and hence was providing security and administration to Kosovo. No stand was taken by the UN Security Council resolution 1244 on the final status of Kosovo and leaving the matter for future Security Council decisions, simultaneously the resolution did not impede or prevent a declaration of independence. Though Kosovo's Declaration of Independence was a political matter, it was recognized by powerful states, such as UK, US, France and also most of the Security Council members.24

Secondly, though Kosovar‘s independence was sought outside colonialism and foreign occupation and historical events was clearly indicating that the relationship between Serbia and Kosovo were in effect similar to these contexts. The violation of human rights, fundamental rights, war crimes, crimes against humanity and ethnic cleansing in Kosovo was recognised by Security Council and International Criminal Tribunals.25

Crimea is decisively different from Kosovo on the following grounds:-

Firstly, despite the revolution and changes Crimea was still governed by Ukrainian Constitution, which was considered to be authoritative by Crimea‘s

24 Paul linden-retek and Evan brewer, Why Crimea is not Kosovo, and why it matters, 18 March 2014, https://www.opendemocracy.net/od-russia/paul-linden-retek-evan- brewer/Crimea-justified-kosovo-ruling-icj-2008-russia-putin,( Last Accessed on August,24th 2014) 25 Gaiane Nuridzhanian, Crimea Secession Claims, Right to Self-Determination and the Kosovo Precedent, International Law observer, 20/03/2014, http://www.internationallawobserver.eu/2014/03/20/guest-post-crimea-secession-claims-right- to-self-determination-and-the-kosovo-precedent/ (Last Accessed on August ,23,2014)

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regional constitution as well. Though international law is silent on referendum favouring secession but Ukranian law is not silent on this point26. Under Article 134 the Ukrainian Constitution strongly considers Crimea to be an 'integral constituent part of Ukraine' that 'shall resolve issues relegated to its authority within the Constitution of Ukraine.27

Secondly, Neither grave violation of fundamental rights have occurred in Crimea nor the facts on the ground show a degree of oppression compelling Crimea to secede from Ukraine to protect its population. Although it was mentioned in the secession referendum that self- determination was threatened but it was self-evident that Crimea‘s self-determination is not threatened.28

Lastly, the secessionists or Russian population of the Crimea cannot be regarded as “a people”. As observed in the Quebec case 29―a people‖ shall be governed as “part of a colonial empire”, be “subject to alien subjugation, domination or exploitation”, be “denied any meaningful exercise of its right to self-determination within the state of which it articulate a side of it”.30. And in other outlook, “self-determination has to be achieved by the peoples within the structure of their existing states”.31

From all the above mentioned reasons it was found that Crimea‘s unilateral secession was violating Ukraine‘s territorial integrity and Crimea‘s actions are

26 International law and legality of secession in Crimea, Cambridge journal of international and Comparative law,20 April 2014, http://cjicl.org.uk/2014/04/20/international-law-legality- secession-crimea/, (Last Accessed on August 23rd 2014) 27 Id. 28 Steven Blockmans, Crimea‘s secession from Ukraine: illegal but legitimate?, 17 March 2014, http://ceps.eu/content/crimea%E2%80%99s-secession-ukraine-illegal-legitimate, (Last Accessed on August, 24th, 2014) 29 1998, 2 S.C.R. 217, reference re secession of Quebec,http://ojen.ca/sites/ojen.ca/files/resources/12- 09%20Quebec%20Secession%20Landmark%20Case%20En_final_full.pdf (last accessed on August,24th,2014) 30Ronald Hilton, CANADA and Spain: The secession question, 8/4/02, http://web.stanford.edu/group/wais/Canada/canada_andspainsecessionquestion8402.html (Last Accessed on August 26th 2014) 31 Id.

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unlawful under both constitutional and international law and hence, Russia‘s support for such actions is also unjustified under international law.

4.0 KOSOVO PRECEDENT AND CRIMEAN SECESSION

So far, in judicial practice, no precedent for right to secede has been established as such. Crimea for justifying its act of unilateral secession cited Kosovo‘s case as its precedent. However Kosovo‘s case was not found to be a precedent in Crimea‘s case.32 In 2008, US also opined that unilateral declaration of independence of Kosovo cannot be applied to other cases of secession, as any case related to territorial conflict or unilateral secession are unique and different depending upon the facts and circumstances.33 It‘s a well- known fact that Kosovo was put under UN administration and this step was taken in order to avoid its application in further cases.34 Hence, this makes the situation sui generis and disallows the Kosovo‘s case to be a precedent.35

Crimea‘s reference to ICJ‘s advisory opinion of Kosovo had an adverse effect in Crimea, as unilateral declaration of independence was found to be in tune with principles of international law but in the former case it was contrary to international law.36 Also, it was only Russia that pleaded against unilateral secession in Kosovo and was opposing its independence. But in Crimean Secession case, Russia accepted it reading notwithstanding its position on Kosovo.37

However it is quite evident that unilateral declaration is not contrary to international law, but whenever it is accompanied by unilateral secession, the

32 Supra note-25 33 Iñigo Urrutia Libarona, Territorial Integrity and Self-Determination: The Approach of the International Court of Justice in the Advisory Opinion on Kosovo, REAF, núm. 16, octubre 2012, at p-122, http://www.raco.cat/index.php/REAF/article/viewFile/262496/349668 ( Last Accessed on August 26th 2014) 34 Noam Chomsky, A Review of NATO‘s War over Kosovo, Z Magazine, April-May, 2001, http://www.chomsky.info/articles/200005--.html ( last accessed on August 26th 2014) 35 Supra note-25 36 Supra note-8 37 Supra note-25

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lawfulness of latter is questioned. Despite the apparent ease if Kosovo case has to be looked upon then declaration of independence in case of Kosovo is distinguishable from the situation in Crimea.38

Basically, Kosovo was representing a case of remedial secession and the issue of self-determination was not taken into consideration in the advisory opinion. As mentioned earlier that there was violations of human rights and violence occurring in Kosovo when it was part of Serbia, henceforth for this reason putting Kosovo back to Serbia‘s jurisdiction was ruled out.39 It was also argued that unilateral secession is due to the inability of exercising self- determination in the parent state.40

Crimean case does not represent a case of remedial secession. Crimea‘s declaration of independence and its unilateral secession is due to its people alleged exercise of the right to self- determination.

It was observed in Kosovo‘s advisory opinion that if there is violation of general principles of international law, particularly the jus cogens norms or if there is any use of force then the declaration of independence is considered to be illegal. But there were no such violation jus cogens norms in Kosovo‘s case. If Crimean Constitution viewed from the formalistic approach then no breach of international law can be said to be committed by authorities of Crimea seeking secession. But the use of forces and military intervention by Russia into the territory of Ukraine for annexing the territory of foreign state made the secession invalid under international law.41

Thus, it can be argued that Crimea‘s declaration of independence was not the free will of its population but was linked to the military interference of a

38 Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy, EJIL:talk, March 20 2014, http://www.ejiltalk.org/category/kosovo/ ( Last Accessed on August 26th 2014) 39 A profile of the internal displacement situation10 October, 2012 40 Supra note-13 41 Marko Milanovic, Crimea, Kosovo, Hobgoblins and Hypocrisy, EJIL:talk, March 20 2014, http://www.ejiltalk.org/category/kosovo/ ( Last Accessed on August 26th 2014)

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foreign state which led to the separatist movement for the annexation of the territory in question.

CONCLUSION

International law is silent on the right to unilateral secession and thus, opposes right to secede strongly. It allows secession only in certain exceptional circumstances i.e., when it is deemed to be justified to do so as already discussed in this paper. Further it can be observe from this paper that how in one case (Kosovo) it was held to be peaceful and legal and in other case (Crimea) it was held to be illegal. However, it can be deduce that occurrence of unilateral secession is unique in each case and henceforth, each of such case cannot be a best suited precedent for resolving the conflicts related to secession. Likewise, Crimea can never be Kosovo, how much ever justification may be given for Crimean secession through citing Kosovo‘s unilateral declaration of Independence as because both these cases represent different facts and circumstances under which it led to secession.

BIBLIOGRAPHY

 WEBSITE REFFERED  www.jstor.com  www.heinonline.com  ARTICLES REFFERED  Anna Stepanowa, International law on legality of the Crimea secession, Beyond the EU Thinking Europe Outside the Union, April 15,2014  Mariana Olaozola, Secession, statehood and Recognition: Normative bases For International Law, Penn State Journal of International Affairs.  Crimean Secession: No Right to Divorce, Cambridge journal of international and comparative law, 09 March 2014,  DAVID M. HERSZENHORN, Crimea Votes to Secede From Ukraine as Russian Troops Keep Watch, The new york Times, March 16 2014,  Milena Sterio, The Case of Kosovo: Self-Determination, Secession, and Statehood Under International Law, American Society of International Law, Vol. 104, (March 24-27, 2010), pp. 361-365  Kateryna Dronova (Berkeley, CA), Crimean secession: self-determination with a false bottom, VoxUkraine, Thursday, March 20, 2014  Paul linden-retek and Evan brewer, Why Crimea is not Kosovo, and why it matters, 18 March 2014,  Steven Blockmans, Crimea‘s secession from Ukraine: illegal but legitimate?, 17 March 2014,

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 International law and legality of secession in Crimea, Cambridge journal of international and Comparative law,20 April 2014

 BOOKS REFFERED  Brownlie, Ian, Principles of public international law, ed 6th Oxford; New York: Oxford University Press, 2008.  Shaw, Malcolm N, International Law, ed.6th, Cambridge : Cambridge University Press, 2008

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DEFENCE OF CONTRIBUTORY NEGLIGENCE IN INDIAN MEDICAL

CASES

Aabid Ali Haider*

"Corresponding to the doctor's duty to use care and skill in his practice of medicine is the patient's duty to use ordinary care in protecting himself from obvious or foreseeable injury."1

INTRODUCTION

Every person who enters into a particular profession undertakes it to bring to the exercise of it a reasonable degree of care and skill. It is well settled fact that a professional man owes to his clients a duty in tort as well as in contract, to exercise reasonable care in giving advice or performing services.2 In the context of the law relating to professional negligence the learned authors have accorded professional status to 7 specific occupations, medical practitioners being one such occupation.3 Today Medical Profession is considered a noble profession as it helps in preserving life. When a patient approaches a doctor, he expects a medical treatment. He expects that the skill and the knowledge possessed by the doctor would bring him relief and cure him of his medical problem. Thus a doctor or a surgeon undertakes to bring a fair, reasonable and competent degree of skill and care.4 Thus a doctor and patient relationship takes a form of an arrangement where the doctor owes his patient certain duties5, I) duty of care to decide whether to accept the case, II) duty of care to decide what treatment is to be given, III) duty of care to decide how to

* Hidayatullah National Law University, Raipur, India 1 R. LONG, THE PHYSICIAN AND THE LAW, 240 (2nd ed. 1959). 2 Indian Medical Association v. V.P.Shanta, AIR 1996 SC 550. 3 Jackson & Powel's on "Professional Negligence" (3rd ed.). 4 Poonam Verma v. Aswin Patel, AIR 1996 SC 2111. 5 Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godpole, AIR 1969 SC 1128.

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administer the treatment. If any of these duties is breached then the doctor can be held liable for negligence. However a situation may also arise, that corresponding to doctor's negligence a patient may also be at fault i.e. he may also be negligent. In such circumstances the patients also contribute to the damage and hence doctors can claim the defense of contributory negligence. The doctor is not totally absolve of the liability but the liability is suitably divided between the doctor and the patient.

Negligence is an important element in contributory negligence in medical cases and therefore before going into the details, it is important to understand the tort of negligence.

Negligence, as per the law of Torts, is a breach of legal duty to take care resulting in damage to the person claiming it. In Blyth v. Brimingharm Water Works co6 Anderson B, defined negligence as under: "it is the breach of duty caused by the omission to do something which a reasonable man guided by those principle which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do". Thus there are three basic elements of negligence (1) a legal duty to exercise due care; 2) Breach of the duty 3) Consequently Damage.

MEDICAL NEGLIGENCE MEANING

Medical negligence in simpler terms means negligence by medical practitioners. It is a professional negligence. Basically it is an unskilled practice of medicine which causes injury. As already mentioned, the Hon'ble Supreme Court in Dr. Lakshman Balkrishna Joshi v. Dr. Trimbak Bapu Godpole7 had laid the three duties which a doctor has towards his patients failing which he would be held liable for negligence. It is also worth mentioning that the Hon'ble Supreme Court in its judgment in Jacob Mathew

6 (1856) Ex 781. 7 Supra note 5.

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v. State of Punjab and another8 laid what is negligence by medical professionals. The court observed: "Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used." This judgment is virtually a treatise on law of medical negligence in India.

It is well established that doctors, and indeed all professionals are accountable for their failures. The wrong of medical negligence can be traced to many early civilizations. However even in ancient times medical negligence was considered more as a crime than as a tort. For example, in the ancient Mosaic Law the Israelites formulated the concept of 'Lex Talionis' demanding 'an eye

8 AIR 2005 SC 3180.

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for an eye, a tooth for a tooth.' Ancient Egyptian Law provided banishment or death to the negligent healer. Roman Law punished medical wrongdoers with a lovely fascist flavor. Medieval Law was equally hard on errant 'barbers and surgeons.'9 Negligent Medical Treatment has also been described in early Indian medical literature. The word 'mithya' which means false, illusive, incorrect, wrong has been employed to describe medical negligence. Similarly Sushrutha Samitha uses the word 'mithyopachara' in the sense improper conduct. It is stated that the physicians who act improperly are liable to punishment and the quantum of penalty varies to the status of victim.10 Kautilya's Arthshastram also mentions that if the death of a patient under treatment is due to carelessness, the physician shall be punished with the penalty of 500 pana (silver coins). Today in many countries like India medical negligence, depending upon the degree of negligence can be considered both as a crime and tort.

Hence, Every act of negligence by the doctor shall not attract punishment. The Hon'ble High Court of Delhi in Smt. Madhubala vs. Government of NCT of Delhi11 held that there are three stages of negligence:

1. lata culpa, gross neglect 2. levis culpa, ordinary neglect, and 3. levissima culpa, slight neglect. The Supreme Court in Dr. Suresh Gupta‘s Case12 held that whenever a patient died due to medical negligence, the doctor was liable in civil law for paying the compensation. Only when the negligence was so gross and his act was so reckless as to endanger the life of the patient,

9 TOTH, ROBERT S, MEDICAL MALPRACTICE, PHYSICIAN AS DEFENDANT, LEGAL DYNAMICS OF MEDICAL ENCOUNTERS, AMERICAN COLLEGE OF LEGAL MEDICINE, ST.LOUIS, 482-491 (1988). 10 MAHALWAR KPS, MEDICAL NEGLIGENCE AND THE LAW 33 (1991). 11 DEL 209 = 2005 (118) DLT 515. 12 Dr. Suresh Gupta vs. Government of N.C.T. of Delhi, AIR 2004 SC 4091.

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criminal law for offence under section 304A of Indian Penal Code, 1860 will apply.

INSTANCES OF NEGLIGENT MEDICAL TREATMENT

The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical harm unless it is done with proper care and skill. A doctor or a surgeon will be held negligent when he fails to comply with the conditions set forth in the Dr. Lakshman Balkrishna case13. For example, in State of Gujarat v. Babubhai Ukabhai14 a doctor was held liable of medical negligence when he failed to exercise reasonable care and diligence expected from the person of medical profession. In the case the deceased died due to vasovagal shock caused while administering anesthesia. Moreover there are day-to-day instances of medical negligence15:

1) a cotton wad or gauze which is left inside the body of a patient after surgery; 2) a wrong treatment or a wrong medicine which is injected; 3) failure to make adequate arrangements in time to meet the emergency; 4) failure to communicate the history of the patient to the subsequent doctor; 5) failure to make inquiries regarding previous treatment; 6) failure to keep the patient under observation when he required the utmost care at the relevant time. Today, after the Consumer Protection Act 1986 (CPA) came into effect, a number of patients have filed cases against doctors. CPA is considered a path breaking legislation in providing redressal to consumer grievances. Services of doctors are well within the purview of CPA because medical service is service for the purposes of CPA16. Patients who hire medical services for

13 Supra note 5. 14 AIR 2010 SC 1162. 15 ANOOP KAUSHAL, MEDICAL NEGLIGENCE & LEGAL REMEDIES 16-17 (3rd Ed. 2004). 16 Srividhya Jayakumar, Contributory Negligence of Patients and Limited Liability of Doctors under Consumer Protection Act, 1986

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consideration are consumers and can seek to complain under CPA. In IMA v V P Shantha17, the Supreme Court held that medical treatment of patients is a service within the meaning of the CPA. In all cases of medical negligence in civil law, monetary compensation is awarded, while in criminal law the accused is punishable under section 304A of IPC.

DEFENSE OF CONTRIBUTORY NEGLIGENCE Sometimes the unexpected results may not be only due to negligence of the doctor but also due to negligence of patients. In such circumstances the severity of doctor's negligence is minimized. He can thus claim the defense of contributory negligence.

CONTRIBUTORY NEGLIGENCE MEANING Contributory negligence is negligence in not avoiding the consequence arising from the defendant's negligence, when plaintiff has means and opportunity to do so.18 Lord Halsbury as stated that the rule of contributory negligence is based on the maxim in pari delicto potior est conditio defendantis which means where both parties are equally to blame neither can hold the other liable. In English Law, the rule of contributory negligence was first recognized in Butterfield v. Forrester19, the facts of the case are as follows: the defendant while repairing his house, wrongfully obstructed a part of the highway by putting a pole across it. The plaintiff, who was riding on his horse violently on the road collided with the pole and was injured. Subsequently the plaintiff filed the suit but the court held that the plaintiff had no cause of action against

http://www.vpmthane.org/law/Princ-Articles/Contributory%20negligence.htm#_ftn19. (As accessed on August 18, 2014).

17 Supra note 2. 18 S.P.SINGH, LAW OF TORT 179 (6th Ed. 2012). 19 (1809) II East 60.

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the defendant as he himself could have avoided the accident by exercising due care. However, this rule was soon modified by the Hon'ble Courts as this greatly affected the plaintiff in maintaining the suit. The plaintiff could lose action for a for a slight negligence on his part even if the defendant‘s negligence was the main cause of damage to the plaintiff. Thus in Davis v. Mann20, the last opportunity rule was established. However again due to the uncertainty in the above rule the English Courts further modified the law by enacting Law Reforms (Contributory Negligence) Act in 1945. As per this Act whenever both the parties are negligent and they have contributed to some damage the amount of compensation will be apportioned as between them according to the degree of their fault. In India the rule of apportionment of liability in case of contributory negligence is followed although there is no central legislation like 1945 English legislation21. But the Kerala Torts (Miscellaneous Provisions) Act, 1976 contains a provision for apportionment. Supreme Court and the high courts have recognized the principle of contributory negligence and have apportioned damages in proportion to the fault. DEFENSE OF CONTRIBUTORY NEGLIGENCE IN MEDICAL CASES We have seen that under tort law, if the plaintiff has also been negligent and his\her negligence has also contributed to the damage, the defense of contributory negligence can be invoked by the defendant and the law permits apportionment of the fault. The plaintiff is partly blame worthy and therefore entitled to only rateably reduced compensation.22 Contributory negligence of a patient is any unreasonable conduct or absence of ordinary care on the part of the patient or his personal attendant which combined with the doctors‘ negligence contributed to the injury complained of

20 (1882) 10 M and W 546. 21 Law Reforms (Contributory Negligence) Act, 1945. 22 Supra note 16.

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as a direct proximate cause and without which the injury would not have occurred.23 The doctrine of contributory negligence is not recognized by law, as a defense in an indictment of criminal negligence, but is a good defense in cases of civil liabilities, and is taken into consideration by the courts while awarding damages to the plaintiff.24 CONTRIBUTORY NEGLIGENCE OF PATIENTS A medical treatment may produce unexpected results not only because of the negligence on part of the doctor but also due to the negligence on the part of the patients. The following circumstances amount to contributory negligence of a patient25 1. Disregard of doctor ‘s instructions and advise. 2. Failure to give the doctor accurate medical history. 3. Failure to cooperate with his doctor in carrying out all reasonable and proper instruction. 4. Refusal to take the suggested treatment. 5. Leaving the hospital against the doctors advise. 6. Failure to seek further medical assistance if symptoms persists. It is worthwhile to mention that if the patient fails to follow a doctor‘s advice, and this is a cause of his injuries/ complications, it will be possible to argue that the patient has been contributorily negligent, or in extreme case, that his conduct is the sole cause of damage26 There have been a plethora of cases where doctors have claimed the defense of contributory negligence and subsequently the courts have recognized the limited liability of the doctors by rateably reducing the damages awarded. The burden of proof of contributory negligence on the part of patient is on doctors. The various case laws mentioned under the following heads illustrate the defense of contributory negligence in medical cases:

23 JAISING P MODI, MEDICAL JURISPRUDENCE AND TOXICOLOGY 194-95 (23rd Ed. 2005). 24 Id. 25 DAS & SODHI, NEGLIGENCE 292-93 (1997). 26 DR JAGDISH & VISHWA BHUSAN, MEDICAL NEGLIGENCE AND COMPENSATION 80 (1999).

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1. Disregard of doctor ’s instructions and advise A doctor has a primary duty to render instructions and advices in order to restore the health of the patient. Correspondingly, a patient has a duty to follow such instructions. Failure on the part of the patient may contribute to the injury and thus may give the doctor the right to claim the defense of contributory negligence. In M.D. Aslam v. Ideal Nursing Home27, a woman underwent an operation for removal of her uterus. She was advised to avoid rich food and large number of visitors. However she consumed cream, roti, meat and dal against the medical advice. Due to infection there was soakage of wound requiring an emergency operation. However she died due to cardiac arrest after the operation. The National Commission held that the rich food and the infection caused by large number of visitors were the causes which did not allow the wound to heal up. The doctor was exempted from liability. Similarly complaint was dismissed when the complainant removed the drainage pipe inserted in the wound for drainage purpose against the medical advice and did not take follow up treatment ignoring the instructions given to him.28

2. Failure to furnish material information A doctor has a duty to administer the correct treatment. For essential treatment and diagnosis the patient also has a duty to furnish material and correct information. In Sethuraman Subramaniamyer v. Triveni Nursing Home29, in this case the patient was suffering from repeated attacks of sinusitis. The doctor had performed an operation but soon there were medical complications and the patient suffered from cardiac arrest. It was found that she was suffering from fits, the information of which was not revealed to the doctor. The doctor was exonerated from liability.

27 1997) 3 C.P.J. 81 (N.C.). 28 Balwinder Kumar v. Arya Hospital and others, 2002 CTJ 409 (Chandigarh). 29 (1998) 1 C.P.J. 10 (N.C.).

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3. Leaving the hospital against the doctors advise. The doctor will not be liable if the patient leaves the hospital against the doctor's advice and contribute to the damage by his own negligence. Thus in Shyam Sunder Raj v Pandarinath30 the patient had left the hospital and further refused to get admitted in ICU. This was an irresponsible conduct on part of the patient and the complaint was dismissed.

4. Both Doctor Patient Negligent In the above cases the doctor was exonerated from liability when the patient himself contributed to the damage. However a situation may arise that besides following the instructions and advise of the doctor, the patient may be negligent and at the same time the doctor may also be negligent in administering the treatment. In such cases both are negligent and compensation is apportioned according to the degree of their fault. For example in Devendar Singh v Vivek Pal 31 the doctor was held liable for negligence in eye surgery. However, the appellant patient was also negligent as there was prolonged use of a medicine much against medical advice. The patient also failed to turn up for follow up. The doctor was held liable only to a limited compensation of Rs. 50,000/- as the appellant -patient was guilty of contributory negligence. Similalry in Manager Martin Medical Centre v E V Thomas32 the doctor was held liable for negligence but the compensation payable was reduced from Rs 24,717 to Rs 10,000 on account of patient's negligence. The doctor had treated an accident injury in the knee. For lack of facilities in the hospital he did advice the patient to move to a better hospital, but only after ten days. The patient was held contributing to the negligence by not following to the advice and shifting to a better hospital. Also in Ram Avatar Sharma v. Dr. Nabin K. Pattanaik33 a compensation of Rs 25,000

30 2012 CPJ 648 (NC). 31 2013 CPJ 442 (NC). 32 1999 CPJ 136. 33Exceptions to Liability for Medical Negligence

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was awarded due to the contributory negligence on part of the patient. In this case the patient was suffering from glaucoma and soon developed cataract. The ophthalmologist diagnosed the cataract and also operated the glaucoma. However the doctor failed to check the pressure of the eye by using a tonometer. The patient developed problems. However the Complainant also contributed to it by not taking post-operative care and not attending the clinic for four months even after the medical complications. Another example where both doctor and a patient was negligent is Indrani Bhattacharjee v. Chief Medical Officer34, the patient was admitted for pain and heaviness in the chest, discomfort and sweating. ECG report showed that he was suffering from "ischemia." The doctor prescribed medicines for gastric trouble and orally advised to consult a cardiologist. The doctor was negligent because ischemic heart disease is a serious health disease and the patient should have been advised in writing. The patient was also held guilty of contributory negligence because he did not consulted the cardiologist. In another case Master Ashok Kumar v. Agadi Nursing Home35 a minor boy sustained fracture in the left hand elbow. The surgeon reduced the fracture and set it. The surgeon put the elbow in plaster and provided a sling. Even after one month there was no relief. The boy again consulted the orthopaedist who suggested a second setting. But the boy consulted another orthopaedist who told him that the earlier treatment was wrong due to which there was no relief. The boy then filed a complaint against the first orthopaedist through his father. But the Karnataka State Commission dismissed the complaint and held that the injury was due to the negligence (contributory negligence) of the boy in tampering with the plaster and causing movement to the fractured elbow before the removal of plaster against the instructions of the doctor. The complaint was dismissed without costs.

http://shodhganga.inflibnet.ac.in/bitstream/10603/5795/9/09_chapter%203.pdf. (As accessed on August 18, 2014) . 34 2009 CTJ 413 (CP) (NC). 35 1995 III CPJ 142.

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CRITICAL ANALYSIS

Analyzing the defence of contributory negligence is imperative in the sense, that any case involving medical malpractice, puts an immense pressure on the judges . It's a herculean task for the judges to decide such cases for the simple reason that they are not trained in medical sciences. Therefore they decide with the help of various precedents, expert's decisions and most importantly on the principles of Justice, Equity and Good Conscience which is enshrined in our legal system.

Contributory negligence as we have seen is basically an exception to medical negligence which has the effect of reducing the extent of liability of the doctor or surgeon. The success of the treatment very often depends on the co- operation of patient and proper rendering of services by persons involved in providing health services. The neglect of duty by the doctor will hold him liable for negligence and if the patient suffers damage then he is ought to be compensated. However if the patient is also negligent in his part then this may help the doctor to exclude or reduce his liability.

Unlike English Law which has enacted Law Reforms (Contributory Negligence) Act in 1945, our country has no central legislation but the rule of apportionment of liability in case of contributory negligence is followed where both the parties are negligent.

Medical treatment is considered a service within the ambit of Consumer Protection Act36. The Act further empowers redressal agencies to award compensation for loss or injury suffered by the consumer due to negligence by the doctor. However the redressal agencies as we have seen above in various cases have considered the contributory negligence of patients and have recognized the limited liability of the doctor. This recognition is just, fair and reasonable as it puts a check on the irresponsible conduct of the patients.

36 Supra note 2.

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Moreover the limited liability of the doctors in cases of contributory negligence also urges that there is need for education of patients. This will to an extent help in the improvement of health services in the country.

CONCLUSION Defence of contributory negligence as we have seen through various case laws cited above reduces the liability of the negligent doctor. If the doctor is negligent in administering his duties thereby causing injury to the patient then he is alone responsible for compensating the plaintiff. If he has committed a gross neglect then he can be held liable for criminal negligence under Section 304 A of the IPC. However, corresponding to the doctor's negligence, if the patient is also negligent in his part and thus contributes to the injury then defense of contributory negligence arises, the liability is suitably divided and the apportionment of damages in proportion to the fault takes place. Also in many medical negligent cases the defense of contributory negligence can be claimed even if the patient alone contributes to the injury. Today we have the Consumer Protection Act whose redressal agencies provide compensation to the damage suffered by the patients. But they also have recognized the contributory negligence on part of the patients. This defense puts a check on the irresponsible conduct of the patients. The defense of contributory negligence nonetheless serves an important reminder that: "Corresponding to the doctor's duty to use care and skill in his practice of medicine is the patient's duty to use ordinary care in protecting himself from obvious or foreseeable injury37

37 Supra note 1.

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SECTION 377- A SECOND GLANCE

Case comment on-

Suresh Kumar Koushal and another V. NAZ Foundation and others

Anshuman Kanti Bose*

INTRODUCTION

Suresh Kumar Koushal and another v NAZ Foundation and others (Civil Appeal No. 10972 of 2013) was one of the most important landmark cases of the decade. This is because of the fact that the judgement given in this case had far reaching consequences upon the judicial discourse over constitutional validity of Section 377 of the Indian Penal Code, 1860 (IPC) - which criminally penalizes what is described as ―unnatural offences‖- to the extent that the said provision is said to criminalise consensual sexual acts between adults in private. The Honourable Court ruled in favour of the appellant declaring that the decision of the High Court to declare Section 377 IPC as constitutionally invalid has no legal basis and that the impugned decision should be set aside. There have been widespread response to this judgement, most of which has been negative. The main protest comes from human rights activists and the LGBT community who have said that it has quashed all hopes of law reform and have decried the decision calling it regressive, outdated, unreasoned and is indicative of a conservative and narrow-minded view of society. The main purpose of this case comment shall be to analyse the reasoning offered by the Court to justify its decision to set aside the High Court order declaring Section 377 as unconstitutional insofar as it criminally penalises sexual acts between consenting adults.

______

*KIIT School of Law, Odisha, India

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Issue being contended That the decision of the High Court to declare Section 377 IPC as constitutionally invalid has no legal basis and that the impugned decision should be set aside.

Historical and Developmental Background of Section 377 IPC

At the heart of the debate here is the penal provision present in section 377 of IPC which criminalises all sexual acts, regardless of consent, if it is not penal- vaginal and hetro-sexual in nature. To discover the best intended interpretation of section 377 we must look back to its historical roots. The first recording of sodomy as a punishable crime in common law was in Fleta in 1290 and Britton in 1300. Acts of sodomy later became punishable by death by hanging under the Buggery Act of 1533 which was re-enacted in 1563 by Queen Elizabeth I, after which it became the charter for the subsequent criminalisation of sodomy in the British Colonies. It was not until 1861 that the death penalty for buggery was formally abolished in Britain and Whales, although sodomy and buggery remained crimes not to be mentioned. Lord Macaulay drafted the Indian Penal Code with section 377 in British India. Section 377 may be found in Chapter XVI entitled ―Of Offences Affecting the Human Body‖ under the sub heading of ‗Unnatural Offences‘. However, the term unnatural offences is never used in the text of 377. Instead the term ‗carnal intercourse‘ is used to describe intercourse against the order of nature with men, women and animals. It is also specified that penetration is sufficient to constitute carnal intercourse. It should go without saying that consent is no defence to any offence under 377 IPC and that no distinction was made with regard to age. Khanu v Emperor laid down a very important point in this regard that carnal intercourse with other human beings in a manner other than those which lead to procreation like oral sex were ―against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case of coitus per os is

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impossible‖1. The issue of whether or not oral sex would constitute an offence under 377 IPC was decided in In Lohana Vasantlal Devchand v. State, ―It was held that the orifice of the mouth is not, according to nature, meant for sexual or carnal intercourse.‖2 Homosexuality was decriminalised in Britain in 1967 by the Sexual Offenses act which decriminalised acts of sodomy between consenting adults. It appears that the courts had earlier held in R. V. Jacobs (1817), Russ & Ry 331 C.C.R., and Govindarajula In re., (1886) 1 Weir 382, that oral sex would not amount to an offence under Section 377 IPC. However, by the time the Lohana case came up in 1968, there was a considerable change in the judicial perception as to the status of oral sex. In Calvin Francis v. Orissa on the basis of the judgement in the Lohana case it was held that oral sex amounted to a form of sexual perversity which fell within the ambit of 377 IPC. Finally in Fazal Rab Choudhary v. State of Bihar, it was observed that Section 377 implied ‗sexual perversity‘. Tests for attracting the penal provisions have changed from non-procreative sexual acts to acts considered to be sexually perverse.

The Judgement The Honourable Court held that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable and hence the impugned order is set aside and the writ petition filed by respondent No.1 is dismissed. The Supreme Court also stated that it has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. The competent legislature shall be free to consider the desirability and

1 Khanu v. Emperor, AIR 1925 Sind 286 2 Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252,

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propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General. Analysis High Court through its judgement curtailed the scope for misuse of section 377. This decision had tremendous scope for changing the socio-legal scenario with respect to the ostracization and persecution of sexual minorities. The Court had placed great emphasis on the protection of the privacy and dignity of the persecuted minorities. However a simple reading of the judgement of the Supreme Court itself should show that the Court is not opposed to the idea of deleting or amending the statute in question. The only contention is that, in the eyes of the Supreme Court, the judiciary is not the correct instrument to bring about the required change. The Supreme Court set aside the judgement saying that only the Parliament had the power to make/amend laws. The reasoning given by the Court is examined below. The Court started by reaffirming the fact that the Judiciary did indeed possess the power to declare a law void, insofar as it was in contravention of any constitutional principles or infringing the rights guaranteed under part three of the Constitution. The Courts also pointed out however, that there is a presumption of constitutionality in favour of any law in force including pre-constitutional laws passed by the Parliament as the Parliament was the legitimate representative of the people and is deemed to act for the benefit of the people in light of their needs and the constraints of the Constitution. It was also specified that the Doctrine of severability could only be applied to that part of the law which transgressed constitutional limits and that it should be used keeping in mind the intent of the Legislature and should be avoided if the two portions are inextricably mixed together. It was also stated that while reading down a law to prevent it from becoming unconstitutional was the preferred choice, it could not be done if the very essence of the law, to be found from a literal reading of the law was found to transgress constitutional

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limits. Based on these facts the Honourable court concluded that though the High Court was empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self- restraint must be exercised and the analysis must be guided by the presumption of constitutionality. This presumption was established by the fact that though in the 172nd Law Commission Report it was clearly recommended that Section 377 IPC be deleted, no action was taken by the legislature. This shows that Parliament, which is held to be the undisputed representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. It is, therefore, appropriate to say that unless a clear constitutional violation is proved, the Court is not empowered to strike down a law merely by virtue of it‘s falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and need. Then the Court decided to review the evolutionary history of the impugned section so as to discern the exact nature and purpose of the act. After examining a large number of judgements relating to section 377 like Khanu v. Emperor, AIR 1925 Sind 286 Lohana Vasantlal Devchand v. State, AIR 1968 Guj 252, in Fazal Rab Choudhary v. State of Bihar and many others. The court concluded that from these cases no uniform test can be culled out to classify acts as ―carnal intercourse against the order of nature‖ and that the acts which fall within the ambit of the section can only be determined with reference to the act itself and the circumstances under which it is executed. All the aforementioned cases refer to non-consensual and markedly coercive situations and the keenness of the court in bringing justice to the victims who were either women or children cannot be discounted while analysing the manner in which the section has been interpreted. The Court admits that it is unclear whether the law could be applied to sexual acts between consenting

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adults. Hence it is difficult to prepare a list of acts which would be covered by the section. Nonetheless in light of the plain meaning and legislative history of the section, the Court held that Section 377 IPC would apply irrespective of age and consent. Here we can clearly infer from the argument presented by the court that the main focus is on the actual purpose for which the act was developed which was to deliver justice to victims of coercive situations and not to prosecute consensual sexual acts between adults. It is relevant to mention here that the Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation. The counter-argument made here is that the criminalization of certain sexual acts itself leads to discrimination when those very acts are voluntarily performed by a certain section of the adult population. The question as to whether a particular classification is unconstitutional by itself or not has been deliberated by the court at some length. The court has relied heavily on the Decision delivered by Chandrachud, CJ speaking for the majority of the Constitutional Bench in Special Courts Bill, 1978 (1979) 1 SCC 380 which relates to the scope of Article 14. The essence of the judgement was that while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon an arbitrary group of individuals randomly chosen out of a wider group of people who were similarly situated in relation to privileges conferred and liabilities imposed, it does not prohibit classification for the purposes of legislation as long as the classification is not arbitrary or unreasonable in the manner specified above. It was also stated that if the legislative policy was clear and definite and that as an effective means of furtherance of that policy a discretionary power was vested in the administrative or executive block to selectively apply the law to a certain class or group of persons, the statute itself cannot be called discriminatory. In such cases the onus would fall on the executive to classify the subject matter of the legislation in accordance with

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the objective specified by the statute. If the administrative body proceeds to classify things on a basis which have no rational relation to the objective of the legislature then its action can be curtailed as offending against the equal protection clause. The crux of this argument may be summed up as follows. Simply because Section 377 IPC is misinterpreted by police and other authorities it cannot be called unconstitutional since the discretionary power rests with the executive authorities, namely the police. Also, the classification made by Section 377 cannot be called arbitrary and irrational as it simply defines a particular offence and prescribes a punishment for it. The statute is used, as can be seen from the various cases reviewed by the Court, to prosecute carnal intercourse of a non-consensual nature. It should be noted that the Court pointed out that in the case of abuse of discretionary power the correct course of action would be to curtail the actions of the executive authorities responsible for said abuse of power, not go after the statute itself calling it discriminatory. On the basis of the above arguments the Court concluded that the High Court was not right in declaring Section 377 ultra vires of Articles 14 and 15

The Court also addressed the contention that Section 377 was vague and hence could be interpreted in a discriminatory manner. The Court cited two important cases in this regard. The first was A.K. Roy and Ors. v. Union of India and Ors. (1982) 1 SCC 271 where it was inferred that even in matters of Criminal Law which can result in the taking away of life, only a reasonable degree of certainty must be accepted as fact. It was also observed that neither the Constitution nor Criminal law required the application of impossible standards, and that what was expected of the language of the law was an adequate warning of the conduct which may fall within the prescribed ambit of the law when measured by common understanding.

The second was K.A. Abbas v. The Union of India where it was specified that ―it cannot be said as an absolute principle that no law will be considered bad

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for sheer vagueness.‖3 It was also stated that there is ample authority to do so in case of breach of fundamental rights. However, the Court goes on to say that, in case of vagueness, the real rule was to construe it as far as the boundaries of language permitted so that it may be in accordance with the intention of the legislature. It has also been stated that a law can only be declared unconstitutional when it prima facie takes away a guaranteed freedom and since Section 377 does not do this it cannot simply be declared unconstitutional due to being ‗vague‘.

As for Article 21 the requirement of substantive due process has been read into the Indian Constitution through a combined reading of Articles 14, 21 and 19 and it has been held as a test which is required to be satisfied while judging the constitutionality of a provision which purports to restrict or limit the right to life and liberty, including the rights of privacy, dignity and autonomy, as envisaged under Article 21. The right to dignity has been dealt with by the court in Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors wherein it was specified that ―no law which authorises and no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand the test of reasonableness and non-arbitrariness. It would plainly be unconstitutional and void as being violative of Articles 14 and 21.‖4 However the Court has held that Section 377 IC does not fall into this category as it has does not prescribe any such form of torture or cruel and inhuman treatment and that a law cannot be declared unconstitutional simply because of misinterpretation by police authorities and others. As to privacy, the court has held that the right cannot be absolute. 5

However, there are certain lines of reasoning made by the Court which may be called tenuous at best.

3K.A. Abbas v. The Union of India (UOI) and Anr. (1970) 2 SCC 780 4 Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors. (1981) 1 SCC 608 5 Gobind v. State of M.P (1975) 2 SCC 148

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Firstly, the Court opined that the High Court should not have entertained the challenge on the ground that the Petitioner had laid not laid out any factual foundation to support the challenge. In support of this, the court has cited judgements from two cases namely Southern Petrochemical Industries v. Electricity Inspector (2007) 5 SCC 447 and Seema Silk and Sarees v. Directorate of Enforcement (2008) 5 SCC 580. Calling the writ petition filed by the Petitioner ―singularly laconic‖ because it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them. However, the Court seems to have completely overlooked the submissions of ‗Voices against Section 377 IPC‘ which appeared before the High Court as respondent No. 8. In order to illustrate the range and magnitude of exploitation, humiliation and cruel treatment suffered by members of the LGBT community Respondent No. 8 has placed on record material in the form of affidavits, FIRs, judgments and orders with objectively documented instances of exploitation, violence, rape and torture suffered by LGBT persons. According to the respondent, the material on record clearly establishes the fact that the continued existence of Section 377 brutalises a vulnerable minority segment of the citizenry. Although it might be argued that the Supreme Court has already stated that a statute cannot be declared unconstitutional simply because of potential abuse by authorities upon whom discretionary power is vested, it cannot be denied that the material placed on record by Respondent No. 8 very effectively furnishes incidents of police abuse of sexual minorities, denial of basic human rights on the basis of sexual orientation etc.

The Court has also stated that the details provided by NACO are totally insufficient to record a finding that homosexual, gays etc. are being unfairly targeted by either state agencies or the society. What the court seems to have overlooked is that NACO has submitted that those in high risk groups, namely, MSM, homosexuals etc. were reluctant to admit having same sex relations for

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fear of law enforcement agencies, which renders a large section of the community unreachable. It illustrates this point by referring to the data reflected in the National Baseline Behaviour Surveillance Survey (NBBSS of 2002) which indicates that while 68.6% MSM population is aware about the methods of preventing infection, only 36% of them actually use condoms. It is stated that the very hidden nature of such groups constantly inhibits/impedes interventions under the National AIDS Control Programme aimed at prevention. Thus it can be seen that NACO is affirming the fact that Homosexuals and the MSM community is being unfairly targeted by the state agencies.

Another tenuous line of reasoning adopted by the court was that while deciding on whether or not to declare Section 377 unconstitutional, the High Court should have kept in mind the fact that a miniscule fraction of the country‘s population constitute lesbians, gays, bisexuals or transgenders and in the last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution. Such reasoning it must be clearly stated, cannot stand since the State is mandated by the Constitution to guarantee and safeguard the rights of each and every citizen of the state.

The Supreme Court also said that the High Court in its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy and dignity, has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, the Court felt that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature. This is a questionable line of reasoning taken by the Court.

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However, it is not an important point in the larger scheme of things since the impugned section already passes all the tests of constitutionality set by the Court.

CONCLUSION The March 1st 2014 online edition of ‗The Hindu‘ featured an article by Akila R. S. titled ―Section 377: the way forward‖ in which the author described the order as unreasoned and barely a few sentences long. This seems to be an unfair analysis since it can plainly be seen that the Court went into considerable detail while discussing its line of reasoning. The court has shown that the original intention behind the formulation of Section 377 IPC was to prosecute non-consensual sexual acts of a carnal nature. The Court has also shown that the alleged mistreatment of certain sexual minorities is not due to the law per se but due to improper interpretation by authorities. The Court has also pointed out that such abuse of power by the authorities is not a valid reason for declaring a law to be unconstitutional. In respect to vagueness the Court has pointed out that the correct option is to construct the law in such a way so that it stays in accordance with the objective of the legislature. It has also argued that the law does not violate any of the provisions of Article 21 as has been contended by the respondents. It must be admitted that certain arguments forwarded by the Court are doubtful and on closer inspection and analysis cannot be maintained. However despite these doubtful arguments, the majority of the Court‘s reasoning is sound. Hence it can be concluded that the Supreme Court is fully justified in its decision to roll back the High Court order which declared Section 377 to be unconstitutional.

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MORS CERTA, HORA INCERTA- IS IT JUSTIFIED?

A. Ashwin Kumar*

Renuka Sara Abraham**

INTRODUCTION:

The death penalty had always been a subject matter of discussion ever since the concept was first introduced by the British in India. Many human rights activists had emphatically asserted that the concept of capital punishment is absolutely inhuman. But the legislatures and the courts in various occasion has clarified the inevitable necessity of the presence of death penalty. The 35th Law commission report has stated that, ―Having regard, to the conditions in India, to the variety of the social upbringing of its inhabitants, to the disparity in the level of morality and education in the country, to the vastness of its area, to diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment.‖1 In India, over 50 executions had been done in the past 6 decades. At the end of 2011, 477 prisoners were awaiting execution throughout India‘s prison system.2 . In the past few months a new dimension into the case of death penalty was brought into the limelight. In the recent case of Shatrugan Chauhan & Anr v. Union of India&Ors3, it was held that if there is an excessive delay in executing the death penalty, then the court would have the power to commute the death penalty into life imprisonment. This case was followed by the case of Murugan v. Union of India&Ors4in which the court adopted a similar position. These two judgments have become the topic of debate in the recent past. There are

* School of law, Christ University, Bangalore, India ** School of law, Christ University, Bangalore, India 1 Devender Pal Singh Bhullar vs State Of N.C.T. Of Delhi AIR2013SC1975 2 Natl.Crime Records Bureau, Government of India Ministry of Home Affairs, Prison Statistics India 2011,Table 7.1,P.121,http:/ncrb.gov.in/index.htm,Sept.3,2012 3 MANU/SC/0043/2014 4 MANU/SC/0104/2014

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certain questions that arise out of these debates: whether the delay in deciding mercy petition, results in the languishment of convicts? Whether such delay results in violation of Fundamental Rights guaranteed by the constitution? Whether there is any other mitigating factor such as morality, which would be considered by the Supreme Court before deciding cases like these? And finally, whether Mors certa, hora incerta 5(death being certain, its hour being uncertain) is justified? One ought to understand the answers for these questions in order to understand the rationale of the Supreme Court for arriving at such a conclusion.

FROM 1950’S TO 1980’S:

Generally, the death penalty is given only in rarest of rare cases as prescribed by Bachan Singh v State Of Punjab6 , besides, the convicts are also given copious opportunities wherein the guilt can be refuted or the sentence can be commuted. As per the procedure established by law, the convicts will have the usual chances to go for appeal till the Supreme Court of India and upon the confirmation from the Supreme Court, they are at the option to file a clemency petition to the governor or President of India. Articles 727 and 1618 of the Constitution deal with the powers of the Governor and the President to commute a death sentence into life imprisonment. It is a constitutional responsibility of great significance, to be exercised when occasion arises in accordance with the discretion contemplated by the context.9 Death sentence itself is an anguish punishment and further more waiting for the noose for an unreasonable time is more unpitying. In the Indian system, there are no proper guidelines for facilitating speedy trial. Due to the

5 A Latin phrase which means death is certain, its hour is uncertain 6 AIR 1980 SC 898; see also MACHHI SINGH AND OTHERS V. STATE OF PUNJAB 1983 AIR 957 7 Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 8 Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases 9 KEHAR SINGH AND ANR ETC V. UNION OF INDIA AND ANR. 1989 AIR 653

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accumulation of cases, it takes an unjust period of time for the Supreme Court to decide each case; as a result the convicts remain in the prison in an irresolute state of mind. If the conviction is upheld in the Supreme Court, the mercy petition can be moved to the Executive wing of the government. The delay at this stage is undeterminable. The constitution of India neither in Article 72 nor in Article 161 has mentioned the maximum time limit till which the mercy petition could be delayed. The mercy petitions would be delayed according to the whims and fancies of the executives while the convicts would be languishing inside the prison. Though the Constitution has failed to formulate a guideline for regulating the delays in mercy petition, the honorable Supreme Court has given diverse opinions in various occasions with regards to the commutation of death penalty to life imprisonment on the ground of delay in deciding the mercy petition. Earlier in the case of Abdul Kadher v. State of Mysore10, the court has held that a delay of three years is sufficient for commuting death penalty to life imprisonment. Subsequently, a contrary position was adopted by the constitutional bench of the Supreme Court and held that delay is not a sufficient ground for commutation11. Once again in Vivian Roddrick v. State of West Bengal12, the court observed that extremely excessive delay is sufficient to commute a harsher sentence to a lesser sentence. In 1976, Lajar Mesih v. State of Uttar Pradesh13 the court rejected the argument for commuting death sentence due to delay stating that it isn‘t an absolute factor and it should be viewed along with the circumstance of the crime. Eventually, in the case of T.V.Vatheeswaran v. The State of Tamil Nadu14, the court for the first time gave an appropriate guidance holding that, ―a delay exceeding two years in the execution of a sentence of death should be considered sufficient to entitle the

10 AIR 1953 SC 553 11 BABU AND 3 OTHERS V. STATE OF UP AIR 1965 SC 1467 12 (1971) 1 SC 468 13 AIR 1976 SC 653; SEE ALSO BALAK RAM V. STATE OF UP AIR 1977 1095 14 AIR 1983 SC 361

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person under sentence of death to invoke Article 2115 and demand the quashing of the sentence of death‖. However, this case was over ruled subsequently by a bench comprising of Justice Chandrachud, Y.V. (CJ), Justice Tulzapurkar V.D. and Justice Varadarajan, The bench observed that while observing that no absolute or unqualified rule can be laid down and in every case in which there is a long delay in the execution of a death sentence, the sentence must be substituted by the condemnation of life imprisonment. There are several other factors which must be taken into account while considering the question as to whether the death sentence should be vacated.16 This view was further augmented in the case of Smt. Triveniben & Ors v. State of Gujarat & Ors17, where the bench specified that the court may consider the question of inordinate delay in the light of all circumstances of the case to decide whether the execution of sentence should be carried out or should be altered into imprisonment for life. No fixed period of delay could be held to make the sentence of death in-executable.

RECENT DEVELOPMENTS: The ruling of Trivenbin case was persuading the Supreme Court for a long time until recent past. In Bhullar‟s case18, the Supreme Court had concluded that those sentenced to death for terrorist offences could not invoke the argument about inordinate delay in disposing of mercy petitions due to the nature of crimes19. This differentiation formulated by the court in Bhullar‟s case was over ruled subsequently in the recent case of Shatrugan Chauhan & Anr v. Union of India&Ors20. In this case, it was held that, the distinction drawn between Indian Penal Code (IPC) and non IPC offences drawn in Bhullar‟s case is invalid and furthermore, the court opined that, if there is any

15 Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law 16 SHER SINGH V. STATE OF PUNJAB 1983 AIR 465 17 1989 AIR 1335 18 DEVENDER PAL SINGH BHULLAR VS STATE OF N.C.T. OF DELHI (2003) 6 SCC 195 19 DEVENDER PAL SINGH BHULLAR VS STATE OF N.C.T. OF DELHI (2003) 6 SCC 195 20 MANU/SC/0043/2014

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delay in executing the death penalty, then the court would have the power to commute the death penalty into life imprisonment. Following the Chauhan case, the Supreme Court within one month has delivered a very controversial judgment in the case of Murugan v. Union of India&Ors21, wherein the court took the Chauhan‘s case as the precedent and has held that the assassinators of the former Prime Minister Rajiv Gandhi would also have their sentences reduced from death sentence to life imprisonment due to delay in the executions. This has created a lot of hue and cry from different groups in India and many have questioned the Supreme Court‘s judgment. In all the cases that were discussed, the parties did not challenge the final verdict of the court in awarding death sentence, but they had each filed a petition due to the delay in carrying out the execution and how this delay was a valid reason to commute the death sentence. This decision has caused a heated political row especially with Tamil Nadu Governments decision to remit the sentence of the assassinators. There is a wide spread debate at this moment, regarding the pros and cons of considering delay as a valid ground for commutation. The various aspects that are considered for this debate are summarized further on.

THE QUESTION OF MORALITY:

―Fiat justitia, et pereat mundus-Let there be Justice, though the world perishes.‖ This was said by the Holy Roman Emperor Ferdinand I, which characterizes an attitude, emphasizing the provision of justice at any price22 . In legal reasoning, the question of Morality and Law are always in conflict with one other. As Bentham said ―Legislation and morals have the same centre, but not the same circumference‖23. By this he meant that morality plays a much more important role than the law.

21 MANU/SC/0104/2014 22 Lexislogike.wordpress.com 23KUMAR ABBAS, Political Theory

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In the cases of commuting death penalty to life imprisonment, the courts are generally subjected to a deep-seated question, i.e. the question of morality. As discussed earlier, the death penalty is given only in rarest of rare cases. In majority of cases, the convicts would be terrorists or murderers who have taken lives of many innocent people. Therefore if a court commutes the death penalty to life imprisonment the following questions arise, will it affect the feelings of the family of victims? Or will it disturb the people‘s hope on the judiciary? Or would it loosen the criminals‘ fear on rule of law? Apart from these ambiguities, if in case the court orders the commutation, the state government will be at the option to order for remission under Code of Criminal Procedure, ultimately resulting in letting convicts of grave offences go scot free. Even recently, there is confusion between the state and central government for remitting the sentence of the assassins of former Prime Minister Rajiv Gandhi. Do these kinds of results, manifest a failure of justice? From the recent past, in many parts of the world, terrorism and disruption are spearheading for one reason or another and resultantly great leaders have been assassinated by suicide bombers and many dastardly murders have been committed.24 Every country has now felt the need to strengthen vigilance against the spurt in the illegal and criminal activities of the militants and terrorists so that the danger to its sovereignty is averted and the community is protected.25 While this is the situation, is it safe to slacken the hold of judiciary on the society, by reducing the intensity of the punishments? In this aspect, It is pertinent to refer the opinion of the court in the case of Bhullar, ―while deciding a petition filed under Article 72 or 161 of the Constitution and the exercise of power by the President or the Governor, as the case may be, not to entertain the prayer for mercy in such cases cannot be characterized as

24 KARTAR SINGH V. STATE OF PUNJAB (1994) 3 SCC 569 25 KARTAR SINGH V. STATE OF PUNJAB (1994) 3 SCC 569

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arbitrary or unreasonable and the Court cannot exercise power of judicial review only on the ground of undue delay”26 At the same time, the court should also take into consideration the brooding languishment of the convicts inside the prison awaiting an uncertain death. One good example would be the case of Dhananjoy Chatterjee27 who was executed after waiting for more than 10 years. Clearly, in cases of prolonged delay, the unspoken miseries suffered by the death row convicts are against the morale of the state. Therefore in case of this nature, the courts are expected to act rationally while prioritizing between the laws and the moralities. In the case of Dhananjoy Chatterjee, the court unfortunately failed to address this aspect of morality; however in many other instances the courts have upheld the moral facet behind the cases. This was the same issue that was discussed in the case of Chauhan where the court held that any delay in the mercy petitions was a valid reason as to diminish the punishments of the convicts charged with death sentence by considering the suffering of the victims. The Supreme Court in Krishena Kumar v Union of India 28 weighed in that the courts are hardly ever interested with morality which is the concern of law-makers. Courts on the other hand are concerned with reasonableness, fairness of the actions and not morality. While in State of Tamil Nadu v A Jaganathan29 the Supreme Court set aside the order of the Madras High Court and relying upon the case of Rama Narang v Ramesh Narang 30, held that while suspending an order of conviction, the High Court must consider the moral conduct of the convict.31 The case of Noel Riley v. Attorney General32 was discussed in the Shatrugan case wherein Privy Council in the minority opinion held that ―sentence of death was one thing, sentence of death followed by lengthy imprisonment

26 DEVENDER PAL SINGH BHULLAR VS STATE OF N.C.T. OF DELHI (2003) 6 SCC 195 27 BIKAS CHATTERJEE AND ANOTHER V. STATE OF W.B AND ANOTHER (2004) 13 SCC 711 28 1990 AIR 1782, 1990 SCR (3) 352 29 JT 1996 (6), 621 1996 SCALE (5)382 30 1995 SCC (2) 513, JT 1995 (1) 515 31 JUSTICE D.P.SINGH, MORALITY IN LAW (EASTERN BOOK HOUSE, LUCKNOW,2012) 32 (1982) CRL.LAW REVIEW 679

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prior to execution was another‖ and hence the court could vacate the death sentence. Further in the case of Ediga Anamma v. State of Andra Pradesh33, Justice Krishna Iyer spoke about the ―brooding horror of haunting the prisoner in the condemned cell for years.‖ Even in the Chauhan case the convicts who had filed writ petitions for commutation of sentence were in jail for more than 10-15 years and after so many years it would make no sense to give them death sentences. Therefore on perusal of these cases, the Supreme Court on various circumstances had abundantly cleared the ambiguity in the prioritization of laws and morality, especially with regard to the topic under the moot. In majority of these cases the immorality in delaying the execution is recognized widely and was dealt with accordingly.

INFRINGEMENT OF FUNDAMENTAL RIGHTS: The right under Article 21 guarantees that a person cannot be deprived of his life or personal liberty, except according to the procedure established by law.34 ‗Procedure established by law, in Art.21 means a procedure which is just, fair, reasonable. Hence, any circumstance which renders the sentence harsh, unjust or unfair, offends against Art.2135. Though, a convicted person is going to be executed in the near future, he is entitled to constitutional protection against human degradation, so long as life lasts.36 Regardless and independent of the suffering it causes, delay makes the process of execution of death sentence unfair, unreasonable, arbitrary and capricious and thereby, violates procedural due process guaranteed under Article 21 of the Constitution and the dehumanizing effect is presumed in such cases37. The 35th Law Commission report talks about the limited effects of capital punishment. However, whether or not death penalty acts as a deterrent may not be statistically proved either way because statistics as to how many

33 1974(4) SCC 443 34 A.K.ROY V. UNION OF INDIA (1982) 1 SCC 271 35 SHER SINGH V. STATE OF PUNJAB, AIR 1983 SC 465 36 SHER SINGH V. STATE OF PUNJAB, AIR 1983 SC 465 37 MURUGAN V. UNION OF INDIA&ORS MANU/SC/0104/2014

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potentially murderers were deterred from committing murder but for existence of capital punishment for murder are difficult, if not altogether impossible, to conclude.

Speedy justice is a part of one‘s fundamental right to life and liberty under Article 21. The Supreme Court took a step further and held that the provision of speedy justice is an obligation of the state for otherwise the operation of the legal system would not promote justice which is assured in the Preamble.38 It has been perceived that a condemned person has to suffer a degree of mental torture even though there was no physical and primitive torture.39 It is now indisputable that undue long delay in execution of the sentence of death would sanction the condemned person to approach the Supreme Court or to be approached under Article 32 of the Constitution. But it is up to the courts discretion to scrutinize the delay caused and the circumstances that emanated after sentence was finally confirmed by the judicial process, to decide whether commutation of death sentence must be granted or not. Undue, inordinate and unreasonable delay in execution of a death sentence would amount to torture under Article 21.40

WHAT DOES THE WORLD SAY? The international perspective is always a convincing factor for Supreme Court while deciding cases of this nature. Though internationally debates on these aspects are uncommon, there are few instances where in various courts across the world have dealt with cases of delay in execution of death sentences. A major problem with delaying the death sentence is that a typical death row inmate would spend their time in a solitary confinement, with little chance for exercise, visitors or contact with other human beings. Such psychological and

38 SC ADVOCATES –ON- RECORD ASSOCIATION V UNION OF INDIA AIR 1994 SC 268 39 MADHU MEHTA V.UNION OF INDIA,1989 (4) SCC 62 AT 69:AIR 1989 SC 2299 40 LAKSHMAN,NATARAJAN,CAPITAL PUNISHMENT:THE QUESTION OF DELAY, ECONOMIC AND POLITICAL WEEKLY,VOL.39.NO.38

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physical mistreatment would in a way result in torture.41 Many decisions in the international courts have found that such prolonged confinement would result in cruel and inhuman treatment. Many prison suicides also take place in solitary confinement because they feel tortured and the need to end their life arises. One of the cases decided by the European Court of Human Rights stated that the convicts had additional suffering through solitary confinement over and above the sentence of death. The Judicial Committee of the Privy Council (JCPC) in the case of Pratt and Morgan42 held that confinement for longer than five years on death sentence would be an inhuman punishment which was contrary to the Jamaican Constitution and the Privy Council also reduced the death sentence to life imprisonment. The Eight Amendment of the United States Constitution also protects the citizens from excessive bails, excessive fines or cruel and unusual Punishments, including torture.43 Delay can render execution unlawful, if the delay be inordinate and not attributable to the conduct of the condemned; execution in such circumstances constitutes a cruel and unusual punishment in violation of the Eighth Amendment of the Constitution.44 In the United States the death row inmates spend their time in tiny foot cells with not enough ventilation. A New Jersey judge sentenced a man to death, but he placed a fixed time limit stating that the execution would be carried out in 5 years since he felt that the typical death penalty process was ―unacceptably cruel‖45. In the Unites States, in the case of Elledge v. Florida46, the Supreme Court refused to

41 R. HANLEY, JUDGE ORDERS DEATH PENALTY WITH A FIVE-YEAR DEADLINE, N.Y. TIMES, MAY 8, 1999 42 PRATT ET AL. V. ATTORNEY GENERAL FOR JAMAICA ET AL., 4 ALL E.R. 769 (PRIVY COUNCIL, 1993). 43 ROZA,GREG:THE EIGHT AMENDMENT: PREVENTING CRUEL AND UNUSUAL PUNISHMENT (THE ROSEN PUBLISHING GROUP,INC.NEW YORK 1ST EDN) 44 PHILIP SAPSFORD, THE DEATH PENALTY: CAN DELAY RENDER EXECUTION UNLAWFUL? AMERICAN SOCIETY OF INTERNATIONAL LAW VOL.99,71-74 (2005) 45 R.HANLEY, JUDGE ORDERS DEATH PENALTY WITH A FIVE-YEAR DEADLINE, N.Y. TIMES, MAY 8, 1999 46 1998 WL 440561 (U.S. FLA.)

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hear the case of William Elledge, but the dissenting judge Justice Breyer said that Elledge‘s argument of 23 years under sentence was unusual and ―especially cruel‖ and the court should have considered his case.

According to Article 6(4) of the International Covenant on Civil and Political Rights (ICCPR), ―Anyone would have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.‖ 47India did ratify the ICCPR in 1979 and hence as the section states, the convicts would have a right to approach the Apex Court and they in turn would have the discretion to commute the death sentence in case of a delay.

CONCLUSION:

―Justice delayed is justice denied‖ – this principle should be applied irrespective of the moral character or integrity of a person. Every single citizen of India is entitled to a speedy justice till his death. Even today there are about 500 convicts on death row with many years having passed since their petitions being rejected. In the case of Sunil Batra v Delhi Administration and Ors etc48, the court held that ―additional and separate punishments were not authorized by law‖. Is it an additional punishment? Being imprisoned for so many years and then being put to death violates Article 20(2) which speaks about being punished for the same offence twice or double jeopardy. In a way the convicts are being punished twice and this would be a violation of their Fundamental Rights guaranteed under the Constitution.

In the cases cited supra, the courts have clearly identified the non-justification in Mors certa, hora in certa (death being certain, its hour being uncertain). However, Inspite of all these ratios and observations, there are few

47 JOSEPH,SCHULTZ,CASTAN THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS: CASES, MATERIALS AND COMMENTARY, OXFORD UNIVERSITY PRESS,2000 48 (1978) 4 SCC 494

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catastrophes which had happened in the history of India. Such an example would be the case of Dhananjoy Chatterjee who was hanged in the 2004, despite the fact that he was awaiting for the noose for a period of more than 10 years, which is clearly a inordinate delay.

These kinds of incidents sometimes loosen the faith of people towards the Judiciary. However the courts in recent days have taken a great leap to regain the faith among the people by guaranteeing the fundamental right to live, even for convicts under death row. It is also pertinent to conclude that, these decisions are a good move towards the abolition of the death penalty which is recommended by ICCPR. The courts are always at the position to decide the conflict of morality and law; the courts are also at the duty to correct the mistakes committed by the other wings of government. Above all the Supreme Court ought to make sure that, the fundamental rights are guaranteed to every citizen till his last breath despite of his social status. Such duties are always performed duly by the court and it is hoped that it will continue the same.

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CYBER TERRORISM

Shivangi Agarwal Love Gupta

INTRODUCTION

Cyber Terrorism refers to unlawful attack and threats of attacks against computers, networks and the information stored therein when done to intimidate or coerce a Government or its people in furtherance of political or social objectives. Though the term cyber-crime has not been defined in the Information Technology Act, 2000 but we can say cyber-crimes are computer generated crimes in superhighway where a computer may be a tool or target. There are several cyber-crimes including cyber terrorism e.g., cyber hacking, cyber theft, cyber spamming, cyber fraud, cyber phishing, cyber defamation, cyber pornography, cyber stalking, cyber piracy etc. The list is not exhaustive rather ever expanding with every passing moment with dynamic technological, social, economic and cultural change. There are two concepts of cyber terrorism:-

 When terrorists use new technology to attack their audience by creating violence through defacement of websites, denial of service attack, hacking, tampering source code etc In this case new technology is used as a tool and it is also a target  Terrorized use of technology i.e. cyber pornography, cyber brand, cyber theft, cyber spamming etc. to cause terror or threat in the mind of the people

Cyber terrorism is one of the cyber-crimes in superhighway or cyber world. These activities are crimes because these are prohibited by several criminal laws and State imposes punishment for these activities through criminal law. Cyber Space has no specific and defined jurisdiction. In the globalized and

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liberalized contemporary social phenomenon terrorists can visit all over the world even without Visa or Passport through communication convergence technology. They can meet together, communicate and form ground worldwide even sitting in different countries. Cyber terrorism is not only national problem but also global problem, there is need to curb it with global initiatives.

Wars in 21st century will increasingly require all elements of national power- not just the military. They will require that economic, diplomatic, financial law enforcement and intelligence capabilities work together.

Some of the contents found in terrorists computers are:-

1. Hits on websites that contained ―sabotage handbook‖ 2. Handbooks containing internet tools, Planning a hit, anti-surveillance methods, ―cracking‖ tools 3. Al-Qaeda actively researched publicly available information concerning critical infrastructures posted on websites. While dealing with terrorist‘s computers attention must be paid to studying their ideology, history motivation and capabilities.

They generally use the following tools for their attacks like Sniffers, Rootkits, Network vulnerability Analyzers, Spoofing, Trojan Horses, Worms and Dos. They also use defacement to embarrass.

They use websites to actively recruit members and publicize propaganda as well as to raise and transmit funds. Their websites also contains information necessary to construct weapons, obtain false identification. They use internet as a communication via chartrooms, BBS, email. They communicate via internet and order airline tickets.

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CYBER TERRORISM COUNTER MEASURES IN INDIA

Department of Information Technology has constituted the national crisis management committee monitors the progress and implementation of the plan. As per the plan every ministry/ department should create internal crisis management committee. According to NCMC plan, each state would also have to create state crisis management committee under the state chief secretary.

Central Bureau of Investigation started Cyber crimes research and development unit, cyber-crime investigation cell, cyber forensics laboratory and network monitoring center.

Information technology amendment act, 2008 has designated CERT-In to serve as the national agency to perform the functions in the area of cyber security, CERT-In also has different components for critical infrastructures like Defense, Finance and IT etc.1.

Information Security Assurance Programmed was conducted by CERT-In to create awareness in Government and critical sector organizations and to develop and implement information security policy and information security best practices based on ISO/IEC 270012

National Technical Research Organization under prime minister‘s office monitors gathers intelligence and keeps a watch on emerging and imminent cyber threats.

Though in India many have terrorist organizations which are listed below and many more are there worldwide the utilization of cyber-attack is not directly

1MATHIAS, PAUL; ―Cyberterrorismes‖, Rue Descartes, No. 62, TERREURS ET TERRORISMS (Novembre 2008), pp. 102-105, Presses Universitaires de France 2MOBLEY, BLAKE W.; ―Terrorism and Counterintelligence‖-How Terrorist Groups Elude Detection, Columbia University Press (August 2012)

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reported, any important cases, except Wi-Fi hacking to gain the media attention.

MODES OF CYBER TERRORISM

1) Attack on national security- national security depends on confidentiality, secret information, etc. and when terrorists attack them, they destroy, delete or modify those information or purport to do the same and all these treated as terrorist attack or cyber terrorism. 2) Cyber terrorism is the forerunner of warfare- In contemporary era of communication convergence and new technology one nation causes terrorist violence against other nation or nations by using or making target of new technology. This is called network or warfare. 3) International cyber terrorist attack- When international terrorist groups communicate each other through internet and through their own network to attack any nation then it is called international cyber terrorist attack.

CYBER TERRORISM IN INDIA

 Ethnic Tamil Guidelines attacked Srilanka Embassies with thousands of email- The message read as follows ―we are the internet black tigers and we are doing this to disrupt your communications this is an off-shoot of the Liberation Tigers of Tamil Eelam.  Cyber Terrorism-Cyber war- Network or cyber war and cyber terrorism is not only prevalent in USA, UK, Australia, France etc but also in Bangladesh, Pakistan and in India. Now a day‘s most of Indian Department sites are defaced and attacked by Pakistani hackers and terrorist groups. Information and Communication Technology are in great use by terrorists in Bangladesh, Pakistan and India too. In the year 2000, within 4 months almost 132 Indian websites were defaced and the number was increased in the year 2001 by 161. The hackers

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group named Silver Lords hacked about 23 Indian websites within 6 days demanding independence for Kashmir. One Pakistani website called Global.net.pk was also hacked by Silver Lords. The Pakistani hackers group was detected by one Indian ethical hacker Mr. Anand Khare known as Dr. Nerukar.  Indian Legislation- The Indian Parliament passed the Information Technology Act, 2000 following the United Nations Model Law, 1997 but does not define the term cyber terrorism, cyber-crimes etc. However, Section 66 prohibits cyber hacking and prescribes punishments. The terrorist activities are prohibited by several laws in India several times. The prevention of terrorism act, 2000 was passed for 3 years though it was mentioned that penalty, forfeiture, punishment and proceedings under the act will continue to be operational after its expiry3. This act prohibits terrorist and disaster related activates, using any property, weapons or harbouring for terrorist activities. The prevention of terrorism ordinance 2001 was made for the prevention of terrorist and related activities. Investigators became empowered to extract information from anyone they suspect and failure to reveal information was punishable with up to 3 years imprisonment. Even without knowledge, holding a property derived from terrorist or acquired through terrorists fund was punishable offence. Not only that if a person was found in unauthorized possession of arms in a special or notified area, he would presumed for being linked with terrorist activities under POTO.  Cyber Terrorism by Hackers-On May 2001 the Indian government and e-business sectors raised voice to act against anti- Indian hacking especially against Pakistani hackers and Government constituted a force on cyber security. Therefore, unlocking the source codes of

3 Chalk, Peter; Rosenau, William; ―Confronting the "Enemy Within", Security Intelligence, the Police, and Counterterrorism in Four Democracies, 1st edition, RAND Corporation (April 2004)

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Pakistani websites was taken as way to prevent and control cyber terrorism. Thus, Indian Pakistani cyber was going on every moment.  Cyber terrorism over Indian Parliament- In the year 2001, 13th December attack on the Indian parliament was with the help of information technology. Accused committed cyber forgery and made gate pass and for this process they downloaded the official logo of Ministry of Home Affairs and other information with layout of Indian Parliament. Police found out a laptop computer from main accused Md. Afzal and S. Hussein Guru and also found out that they did it through Pakistani Internet Service Provider. They controlled the identity and e-mail system of Indian Army.  Cyber terror in Kolkata- Once encrypted message was stored by Mr. S. Kundus cyber café‘s Technician on December 2002 at Kolkata that one computer file was fund called Paki-G.Baba 0241 in the D- Drive. Out of curiosity he opened it and found that terrorizing message with misspelling of some famous building in Kolkata with possible dates and times of terror attack. But due to extra alert and security measures of Kolkata police no incident occurred. Similar message was found in webpage before Durga Puja 2005 and people in Kolkata were alerted by government. Aftab Ansari‘s network from Dubai and New Delhi to attack American Center at Kolkata was cyber terrorism.  Ayodhya incident-Indian Police found mobile phone link with Unani doctor irfan khan and terrorist of ayodhya incidents with amin@zuber. Police found out, only fater 1 hour of ayodhya incident through mobile called ID and detected that gazimisbah-ud-din the operational chief of Kashmir‘s biggest indigenous militant has link with this incident. The short message service conversation was as such: ―hello this is gazi note it down, we have not done it…..4‖

4 Bhansali, S.R.; ―Commentary on the information technology act‖, second edition, 2012, universal law publishing co. new Delhi, p. 261-266

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 Cyber terrorism in India link to the UK blast- Al-quida linked terrorist and accused of London blast Md. Afozol of 29 years old was sentenced to 7 years rigorous imprisonment by the prevention of terrorist activities court in India, special judge A.P. Bhargale awarded the sentence on 22nd July, 2005 on the charge of conspiracy with his uncle in the UK named M.M. Nizam to cause terror and destruction in England, Australia and the USA by hijacking planes, crashing vital locations etc. He was also charged with forgery for producing fake certificates of a Pune College to get admission in a pilot training institution in Mumbai and abroad. The Court also directed to bring his uncle into India. Police seized international credit cards, global roaming mobile phone and passport etc. from him. Al-quida influenced India origin H.R.Aswat made numerous calls to the terrorist and was arrested from Islamabad though he went out of the UK just few hours before London blast on tube train and bus on 7th july.2005. At the time of his arrest he was armed with and wore a belt of explosives and had 17000 and British passport. He is cousin of terrorist who died in 2002 Gujarat riots in India.  July 11, 2006 terrorist attack- Information technology becomes easy took beyond imagination on the hand of terrorists. World is witness of measurable disastrous terrorists attacks on India on July 11,2006. In the era of communication convergence terrorists are using computers, wireless and mobiles. Therefore, on the same day almost at the same time serial bomb blast were their target; at first Srinagar and then Mumbai electronic media has flashed breaking news on July 12, 2006 that behind frequent blast in Srinagar and Mumbai, the culprits were lascar-i-taiba,alquida,simi etc. as suspected by Maharashtra police. Maharashtra police found out explosives just before one month of Mumbai blast from Aurangabad and nasik, police also found out one

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suspected resident of Malegaon at Maharashtra who left India for Pakistan just after explosion.

Also in case of 26/11 Mumbai attack terrorists used Google earth, internet telephony, satellite phones and online data to execute the deadly terror attack which cannot be taken as cyber terrorism according to the definition. Terrorists used USA, virtual number and other g=five Austrian DID (direct inward dialing), numbers with an Austria country code. This USA virtual number was used by the handlers in Pak to route calls to terrorists in India. FBI has helped the Mumbai police in tracing of voice over internet protocol calls, the email that was sent minutes after the attack and also in the investigation of the Thuraya satellite phone recovered from the terrorists. The terrorists who attacked our parliament on December 13 2001 also used the steganography images for transmitting their mails in encrypt from over internet5.

CYBER TERRORISM IS AN ATTRACTIVE OPTION FOR MODERN TERRORISTS FOR SEVERAL REASONS

 It is cheaper than traditional terrorist methods all that the terrorist needs is a personal computer and an online connection. Terrorists do not need to buy weapons such as guns and explosives; instead, they can create and deliver computer viruses through a telephone line, a cable, or a wireless connection.  Cyber Terrorism is more anonymous than traditional terrorist methods. Like many Internet Surfers, terrorists use online nicknames-―screen names‖-or log on to a website as an unidentified ―guest user‖, making it very hard for security agencies and police forces to track down the terrorists‘ real identity. And in cyberspace there are no physical

5 MOBLEY, BLAKE W.; ―Terrorism and Counterintelligence‖-How Terrorist Groups Elude Detection, Columbia University Press (August 2012)

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barriers such as checkpoints to navigate, no borders to cross, and no customs agents to outsmart.  The variety and number of targets are enormous. The cyber terrorist could target the computers and computer networks of governments, individuals, public utilities, private airlines, and so forth. The sheer number and complexity of potential targets guarantee that terrorists can find weaknesses and vulnerabilities to exploit. Several studies have shown that critical infrastructures, such as electric power grids and emergency services, are vulnerable to a cyber terrorist attack because the infrastructures and the computer systems that run them are highly complex, making it effectively impossible to eliminate all weaknesses.  Cyber terrorism can be conducted remotely, a feature that is especially appealing to terrorists. Cyber terrorism requires less physical training, psychological investment, risk of morality, and travel than conventional forms of terrorism, making it easier for terrorist organizations to recruit and retain followers.  As the I Love You virus showed, cyber terrorism has the potential to affect directly a large number of people than traditional terrorist methods, thereby generating greater media coverage, which is ultimately what terrorists want6.

A terrorist‘s ability to control, disrupts, or alters the command and monitoring functions performed by these systems could threaten regional and possibly national security. Equally alarming is the prospect of terrorists themselves designing computer software for government agencies.

In March 2000, Japan‘s Metropolitan Police Department reported that a software system they had procured to track 150 police vehicles, including unmarked cars, had been developed by the Aim Shinryko cult, the same group

6 Rabasa, Angel; Boraz, Steven; ―Ungoverned Territories‖-Understanding and Reducing Terrorism Risks, 1st edition, RAND Corporation (August 2007)

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that gassed the Tokyo subway in 1995, killing 12 people and injuring 6000 more. At the time of the discovery, the cult had received classified tracking data on 115 vehicles. Further, the cult had developed software for at least 80 Japanese firms and 10 government agencies7. They had worked as subcontractors to other firms, making it almost impossible for the organizations to know who was developing the software. As subcontractors, the cult could have installed Trojan horses to launch or facilitate cyber terrorist attacks at a larger date.

A major method used in preventing cyber terrorism is the sharing of intelligence information. In US, FBI routinely passes intelligence received in active investigations or developed through research to the intelligence community. Throughout the FBI field offices, Special Agents serve on cyber task forces with other agencies. The FBI is a sponsor/participant in the Inter Agency Coordination Cell at FBIHQ. Malaysia has initiated global public private initiative and created International Multilateral Partnership against Cyber Threats.

PREVENTIVE METHODS/CURB CYBER TERRORISM

To curb cyber terrorism international and national organizations, government agencies and other bodies are working very hard and always working as watch dog. Nevertheless to prevent and control cyber terrorism, there is need to adopt several preventive and controlling measures through law and public awareness, those are:-

 There is need of specific provision with a clear definition of cyber terrorism  There is need to evolve high and world standard of security measures

7 Deutch, John; ―Terrorism‖, Foreign Policy, No. 108 (Autumn, 1997), pp. 10-22, Washingtonpost.Newsweek Interactive, LLC

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 Government agencies specially must choose Local Area Network for international communications  They must adopt their own communication, secret and confidential fiber method; delete confidential information after use etc. to fight against virus, worm, hacking, hijacking, net-war, cyber terrorism etc.  Regular updating antivirus software, changing password, updating operating system etc are few preventive measures  There is great need of awareness, information technology education and training among government agencies as well as general people  There is need to improve infrastructure of law enforcing agencies  Our judiciary also needs some training and infrastructure development in this field  To prevent and control net warfare investigative agencies must be empowered to deface terrorists‘ websites and network  There is need to develop law to prevent and control cyber terrorism where mobile and wireless issued by terrorists. There is need of specific law fixing responsibility, liability and accountability of the internet service providers.  It may be controlled by investigating suspected wireless and mobile phones and service providers like history in computer through menu in cell phone  During 11th September 2001 attack on WTC and Pentagon on network of airways was attacked and it did not affect other networks8. That is why others were not alerted about that attack. Network services must be connected with each other to the extent to alert sudden attack

8 Wulf, William A.; Jones, Anita K; ―Reflections on Cyber security‖, Science, New Series, Vol. 326, No. 5955 (Nov. 13, 2009), pp. 943-944, American Association for the Advancement of Science

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PUNISHMENT FOR CYBER TERRORISM

According to section 66-F of the Information Technology Act, 2000 whoever with intent to threaten the unity, integrity, security or sovereignty of India or to strike terror in the people or any section of the people by denying or cause the denial of access to any person authorized to access computer resource or attempting to penetrate or access a computer resource without authorization or exceeding unauthorized access or introducing or causing to introduce any computer contaminant and by means of such conduct causes or is likely to cause death or injuries to persons or damage or destruction of property or disrupts or knowing that it is likely to cause damage or disruption of supplies or services essential to the life of the communist or adversely affect the critical information infrastructure specified under section 70; or knowingly or intentionally penetrates or accesses a computer resource without authorization or exceeding authorized access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons of the security of the state or foreign relations; or any restricted information, data or computer database, with reasons to believe that such information, data computer or database so obtained may be used to cause or likely to cause injury to the interests of the sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement at an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism. Whoever commits or conspires to commit cyber terrorism shall be punishable with imprisonment which may extend to imprisonment for life9.

9Bhansali, S.R.; ―Commentary on the information technology act‖, second edition, 2012, universal law publishing co. new Delhi, p. 261-266

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CONCLUSION

Our national security, databases, and economy are extremely dependent upon automation. Therefore, there exists a ―target rich environment‖ for those who would do harm via the Internet. Our critical infrastructures require joint private/public efforts to protect them from cyber terrorism. In India, extremist activities which are carried out to disrupt the sovereignty and integrity are strictly regulated the Prevention of Terrorism Act, 2002 (repeal ordinance, 2004), besides various provisions under the Indian Penal code, especially chapter VI, which deals with offences against the State. The prime focus of these legislations is to restrict terrorist activities in India. As such, they also emphasize on the forensic evidences that could trace the motive, the master plan as well as the master planner and the executers of such plans. With the growth of digital communications, the Indian Evidence Act has also adopted the cyber forensic specimens as evidences for the extremist ideologies and activities.

BIBLIOGRAPHY

BOOKS

 Rowland, Diane; Kohl, Uta; Charlesworth, Andrew; ―Information technology law‖, fourth edition, 2011, MPG Books Group, p. 180  Mishra, Dr. J.P.; ―An introduction to cyber laws‖, first edition, 2012, central law publications, p. 108-144  Sharma, Vakul; ―Information Technology Law and Practice (Law &Emerging Technology Cyber Law & E-Commerce)‖, third edition, 2011, Universal law publishing co. New Delhi  Reed, Chris; ―Computer Law‖, seventh edition, 2011, south Asia edition, oxford university press,  Singh, Justice Yatindra; ―Cyber Laws‖, fifth edition, 2012, universal law publishing Co. new Delhi  Reed, Chris; ―Internet law‖, second edition, 2010, universal publishing co. new Delhi  Verma, S.K.; Mittal, Raman; ―Legal dimensions of cyberspace‖, 2004, Indian law institute new Delhi  Chaubey, Prof. R.K.; ―An introduction to cyber crime and cyber law‖, 2012, kamal law house Kolkata, p. 135-149  Mani, K.;―A practical Approach to Cyber Laws‖, second edition, 2012, Kamal Publishers, p.202-255  Barkha; Mohan, U. Rama; ―Cyber law & crimes‖, third edition, 2011, Asia law house Hyderabad, p. 93-98

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 Bhansali, S.R.; ―Commentary on the information technology act‖, second edition, 2012, universal law publishing co. new Delhi, p. 261-266

JOURNALS

 Satapathy, C.;―Impact of Cyber Vandalism on the Internet‖, Economic and Political Weekly, Vol. 35, No. 13 (Mar. 25-31, 2000), pp. 1059-1061, Economic and Political Weekly  Westby, Jody R; ―COUNTERING TERRORISM WITH CYBER SECURITY‖, Jurimetrics, Vol. 47, No. 3 (SPRING 2007), pp. 297-313, American Bar Association  Deutch, John; ―Terrorism‖, Foreign Policy, No. 108 (Autumn, 1997), pp. 10-22, Washingtonpost.Newsweek Interactive, LLC  Chalk, Peter; Rosenau, William; ―Confronting the "Enemy Within", Security Intelligence, the Police, and Counterterrorism in Four Democracies, 1st edition, RAND Corporation (April 2004)  MATHIAS, PAUL; ―Cyberterrorismes‖, Rue Descartes, No. 62, TERREURS ET TERRORISMS (Novembre 2008), pp. 102-105, Presses Universitaires de France  Wulf, William A.; Jones, Anita K; ―Reflections on Cyber security‖, Science, New Series, Vol. 326, No. 5955 (Nov. 13, 2009), pp. 943-944, American Association for the Advancement of Science  MOBLEY, BLAKE W.; ―Terrorism and Counterintelligence‖-How Terrorist Groups Elude Detection, Columbia University Press (August 2012)  DENILEON, GAY PORTER; ―THE WHO, WHAT, WHY, AND HOW OF Counterterrorism Issues‖, Journal (American Water Works Association), Vol. 93, No. 5 (MAY 2001), pp. 78-81, 83-85, American Water Works Association  Schaefer, Agnes Gereben; Noricks, Darcy; Goldsmith, Benjamin W.; Lester, Genevieve; Goulka, Jeremiah; Wermuth, Michael A; Libicki, Martin C; Howell, David R.; ―The Challenge of Domestic Intelligence in a Free Society‖-A Multidisciplinary Look at the Creation of a U.S. Domestic Counterterrorism Intelligence Agency, RAND Corporation (February 2009)  Rabasa, Angel; Boraz, Steven; ―Ungoverned Territories‖-Understanding and Reducing Terrorism Risks, 1st edition, RAND Corporation (August 2007)

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DIGITAL RIGHTS MANAGEMENT IN INDIA – A COMPARATIVE STUDY WITH US AND EU

Shruti Rastogi*

“I could be bounded in a nutshell, and count myself a king of infinite space.”1

INTRODUCTION

The 1980s and the 1990s saw the digital revolution sweeping the world and advent of internet over the World Wide Web. It is very pertinent for lawmakers, content owners, consumer electronics and consumer manufacturers to understand the technology of the Internet, the function it performs, the uses of such technology, and the role of the principal players on the Internet in order to understand the legal implications of the Internet on the copyright of authors. Internet is often described as a ―network of networks‖.2 Anyone can gain access by use of an appropriate modem,3 usually with an appropriate agreement with an access provider, a person who provides a ‗gateway‘ link to the internet. Material can be accessed, viewed, retrieved, printed and downloaded4 from all over the world. We do not have an ‗owner‘ or ‗proprietor‘ who owns and controls internet. It is, therefore, sometimes described as ―information technology communications anarchy‖.5 It is also defined as a set of computer networks, possibly dissimilar, joined together by

* Student, pursuing LL.M. in Intellectual Property Rights at Gujarat National Law University

1 William Shakespeare, Hamlet, Act 2, Sc 2. 2 J.H. Smith Grahm, Internet Law and Regulation (Sweet and Maxwell 3rd ed. 2002) 1. Also see, Rodney D. Ryder, Intellectual Property and the Internet (Lexis Nexis Butterworths, 2002) 67; Jeffrey M Samuels, Patent, Trade Mark and Copyright Laws (BNA Book 2001). 3 See supra note 4: It is a device for converting electrical signals from a computer into a form which permits their transmission along telephone lines and vice versa. It is used for communication between computers via telephone lines. 4 Download is the transfer of data to another computer, a peripheral device or a remote location. 5 Krishna Kumar, Cyber Laws Intellectual Property and E-Commerce Security (Dominant Publishers and Distributors 1st ed. 2001) p.69.

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means of gateways that handle data, transfer messages from the sending network by means of the protocols used by receiving network.6

The Copyright Act was amended in the year 2012 so as to comply with the international treaties, WCT7 and WPPT8 though India has still not ratified the same. Making copies on the internet has become lot easier and each one looks original. The fact that they are made available on the Internet does not constitute a waiver of copyright nor does it carry any implied license for anyone to download or reproduce the material without the permission of the copyright owner. Digitization has caused the cost of copying and distribution to fall to virtually zero. Can the distinction between traditional ―original‖ and ―copy‖ be applicable to such a communication technology where these distinctions are meaningless?

The most fundamental issues that arise pertain to determination of the scope and protection of rights of copyright owners in the digital environment. Some of the specific issues that have arisen are: How should the rights of the authors be defined and what exceptions and limitations permitted to such rights? How are the rights of the authors to be enforced and administered in this digital environment? Can the existing worldwide copyright rules adequately protect the interests of those who hold copyright or are changes to the existing rules required?

It is, however, a good practice for all copyright owners to maintain documentary evidence of the date of creation of the work, and display a notice regarding ownership of copyright on the material posted on the Internet that shall facilitate proof of copyright should there be a need to enforce the copyright against a third party.

6 See Microsoft Press Computer Dictionary (1994) p.220. 7 WIPO Copyright Treaty 8 WIPO Performances and Phonograms Treaty

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I part of the paper deals with the new provisions added in the Copyright Act, 1957 by the way of amendment in 2012 in order to comply with WCT and WPPT. Part II contains a comparative analysis of the new provisions with similar provisions in US and EU to help comprehend the new provisions from a comparative perspective and it finally concludes in Part III with few suggestions.

Part I: Provisions added by Copyright Amendment Act, 2012 regarding DRM

Section 65 A and Section 65B were added by way of amendment in 2012 to the Copyright Act.

When one reads Section 65A, the anti-circumvention provision along with the exceptions enumerated, three major implications of the legislative approach become obvious. Firstly, by limiting the application of the anti-circumvention provision to cases of intentional infringement, the legislator has used a fairly high bar for invoking actions based on this provision. Secondly, as the exception provision clearly mentions, if the circumvention was for a purpose not expressly prohibited by the Copyright Act (for example, exceptions allowed under the Copyright law), the anti-circumvention provision will not apply. Thirdly, the legislature also allows circumvention with the help of third parties, provided certain procedural conditions are met. The significance of these three aspects will be better understood, when one reviews the US and the European approach to anti-circumvention provisions.

According to Section 65B(i) of the Act, if any person knowingly removes or alters any rights management information without authority, s/he shall be imprisoned for up to two years and shall also be fined. Similar punishments are also prescribed for persons who distribute, import for distribution, broadcast or communicate to the public, copies of any work or performance without authority, knowing that the rights management information has been

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removed or altered without authority as per Section 65B(ii). The provision also specifically mentions that the criminal remedies provided are in addition to the civil remedies already provided under the Copyright Act for the copyright owners in such works. There are two factors which need to be highlighted: First, when compared to the provisions relating to protection of technological measures, the provisions relating to protection of rights management information takes a far more rigid approach. This is visible from the absence of any explicit exceptions under the provision. Second, by explicitly mentioning the additional availability of civil remedies, the provision on protection of rights management information shows a stricter approach, compared to the provision against circumvention of technological protection measures. Both the provisions relating to protection of technological measures and rights management information illustrate a carefully drafted legislation meant to satisfy the minimum requirements of the WCT and the WPPT. They are also remarkable for not providing broad protection to subjects generally outside the purview of copyright protection.

Part II: Analysis of the Indian DRM Provisions from a Comparative perspective

To recognize the significance of the minimalist approach taken by the Indian legislature with respect to DRM, one may have to see the provisions in comparison with some other jurisdictions that have implemented the provisions of the WCT and the WPPT. The DRM provisions in the US and the EU may be considered for this purpose. These jurisdictions are chosen not only for their prominent role in the evolution of the WCT and the WPPT, but also for their comparatively longer experience with DRM provisions.9 The DRM provisions proposed under the WIPO Internet treaties were implemented

9 For an interesting historical discussion on how the US attempted to place its digital agenda before the WIPO and also the subsequent negotiations with different parties, including the European Union, that culminated in the present WIPO DRM provisions, Samuelson Pamela, US Digital Agenda at WIPO, Virginia Journal of International Law, 37 (2) (1997) 369-440.

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in the United States through the Digital Millennium Copyright Act (DMCA), in the year 1998 (ref 10).10 One of the most important factors that distinguish the DMCA from other DRM legislation is that it attempts to make a distinction between protection for measures that control access to a work and protection for measures that control use of a work.11 Interestingly, the DMCA access control provisions not only outlaws the actual circumvention of access control measures placed on a work, but also aims to prevent preparatory activities like manufacture and distribution of tools that are primarily meant for facilitating circumvention of access control.12 On the other hand, the anti- circumvention provisions relating to protection of usage control measures prohibit only preparatory activities.13 The DMCA also outlaws tampering of rights management information and dealing in such works with the knowledge that the rights management information has been tampered.14 The explicit exemptions provided under the DMCA are very narrow in scope and they are provided for the purposes of encryption research, law enforcement and security related government activities, reverse engineering, and acquisition assessment for non-profit libraries, archives, and educational institutions.15 Though the DMCA has delegated some powers to the Librarian of Congress to periodically make rules for allowing specific exemptions, a review of the exemptions made so far in this regard shows that its scope of application is

10 17 U.S.C. §§ 1201-1205. While DMCA was drafted subsequent to the WIPO Internet treaties, some of the copyright scholars who have attempted to record the history of DRM provisions of the DMCA have highlighted the prominent role played by the 1995 white paper under Clinton administration, ‗Intellectual Property and the National Information Infrastructure‘, which set the digital agenda of the administration; Samuelson Pamela and Suzanne Scotchmer, The law and economics of reverse engineering, Yale Law Journal, 111 (7) (2002) 1634 and Besek June M, Anti-Circumvention Laws and Copyright: A Report from the Krenochan Center for Law, Media and the Arts, 400-402.

11 For the anti-circumvention provisions regarding access control, 17 U.S.C. § 1201 (a) (1) (A) and 17 U.S.C. § 1201(a)(2). For the anti-circumvention provisions regarding usage control, 17 U.S.C. § 1201 (b) (1).

12 17 U.S.C. § 1201(a)(2).

13 17 U.S.C. § 1201(b)(1). 14 17 U.S.C. § 1202 15 17 U.S.C. § 1201

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very narrow.16 The DMCA provides civil as well as criminal remedies for violations of anti-circumvention provisions.17

A similar picture of DRM laws could be seen from Europe also. The copyright law in Europe is not yet completely harmonized at the community level and there are still considerable differences in the approaches taken by different member states of the European Union with regard to copyright law. The Information Society Directive of 2001 was a major attempt aimed at copyright harmonization within the community and it had also mandated all the member states to bring DRM regulations in the national legislation of member states.18 Article 6 of the Information Society Directive makes it obligatory for the member states to provide adequate legal protection against the circumvention of effective technological measures, if the person concerned is engaged in circumvention with the knowledge, or with reasonable grounds to know, that s/he is pursuing that objective.19 The Directive also specifically outlaws many preparatory activities of commercial nature, with regard to circumvention of technological protection measures.20 Article 7 of the Directive also outlaws tampering of rights management information and dealing in such tampered works, when the person concerned is engaged in such acts with the knowledge

16 17 U.S.C. § 1201 (a) (1) (B), (C), and (D). The rule-makings in this regard were conducted in the years 2000, 2003, 2006, and 2010. The latest rule-making on 27 July 2010 exempts only six categories of users from the prohibition against access control measures. This includes circumvention of access controls in a legitimately purchased DVD to extract short portions for the purpose of criticism or comment in educational purposes, documentary film making, and non-commercial videos. For the complete list of six classes of uses currently exempted, see Statement of the Librarian of Congress Relating to Section 1201 Rulemaking,http://www.copyright.gov/1201/2010/Librarian-of-Congress-1201- Statement.html (15 March 2012).

17 17 U.S.C. § 1203 and 17 U.S.C. § 1204.

18 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, http://eur-lex.europa.eu/LexUriServ/ LexUriServ.do?uri=OJ:L:2001:167:0010:0019:EN:PDF (10 January 2012).

19 Article 6 (1) of the Information Society Directive.

20 Article 6(2) of the Information Society Directive.

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or reasonable grounds to know that s/he is inducing, enabling, facilitating or concealing infringement of copyright or database rights through such actions. Unlike the new Indian DRM provisions or the DMCA, the Directive does not give exceptions for any specific groups. The review of implementation of the DRM provisions prescribed under the Information Society Directive in different member states shows that member states have taken diverging approaches for implementation.21 While some member states have restricted the protection to instances of copyright infringement, some member states have protected the technological measures per se. It is also interesting to see that none of the member states have provided an express right for users to circumvent the technological measures for non-infringing purposes.22 As is evident from the procedural mechanisms installed by different member states, users who want to make use of any legitimate copyright exceptions may have to approach the designated authorities, and in some cases the courts directly, in the absence of voluntary agreements with the right holders.23 This in turn reflects a highly disturbing picture of how the legitimate exceptions to copyright infringement, used to balance the rights of copyright holders with that of copyright users, are distorted by the new DRM regime in Europe. As one could see from a comparative analysis of the new DRM provisions in India with the DRM provisions in the US and the EU, the breadth of the new

21 For a good overview of the procedural approaches taken by different member states with respect to enforcement of limitations, Westkamp Guido, Study on the Implementation and Effect in Member States‘ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society: Part II - Implementation of Directive 2001/29/EC in the Member States, 67-68.

22 For an excellent overview of the detrimental effects caused by DMCA from 1998 to 2010, Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA (Electronic Frontier Foundation), 2010, https://www.eff.org/sites/default/files/eff-unintended- consequences-12-years_0.pdf (2 April 2012).

23 Edelman vN2H2, INC,263 F. Supp. 2d 137 (2003) and Universal vReimerdes, 111 F.Supp.2d 294 (2000), Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA, 1-20; Besek June M, Anti-Circumvention Laws and Copyright: A Report from the Krenochan Center for Law, Media and the Arts, 467-469; and Burk Dan L, Legal and technical standards in digital rights management technology, Fordham Law Review, 74 (2) (2005) 561-568.

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DRM provisions in India are less extensive compared to both the DMCA and the Information Society Directive. But this may not be without a reason. The DRM provisions in the US and the EU have been in existence for around a decade now and this has provided a great learning opportunity for many other nations to see how draconian and anti-progressive DRM provisions can be, in many real life situations.24 This includes serious transgressions over freedom of speech, scientific research, competition in the market, and most importantly, fair use/ fair dealing principles, which balance the copyright system between the interests of the copyright owner and that of the public.25

The anti-circumvention provision attaches liability to every person who ‗circumvents an effective technological measure‘. However, it is noteworthy that neither the term ‗circumvention‘ nor the terms ‗technological measure‘ or ‗effective technological measures‘ have been defined in the Act. The corresponding provisions in the WCT and the WPPT also left these definitions open ended so that different Member States could interpret these terms keeping in view their domestic needs. The absence of definitions for terms like ‗technological measure‘ in the Indian amendment, creates a gap because it is not clear as to whether the provision relates to access control measures or copy control measures or both. Furthermore, it being preceded by the term ‗effective‘ necessarily implies that all technological measures are not effective. This further implies that circumvention of non–effective technological measures does not attract liability under this provision and if infringement is caused, liability can be attached only to infringement and not circumvention. But the provision does not lay down any guideline as to how to

24 Some of the judicial decisions that can illustrate the long reach of DMCA anti- circumventions provisions are Universal vReimerdes, 111 F.Supp.2d 294 (2000); RealNetworks, Inc vStreambox Inc, 2000 U.S. Dist. LEXIS 1889 (2000);Edelman vN2H2, INC.,263 F. Supp. 2d 137 (2003); 321 Studios vMGM Studios Inc,307 F.Supp.2d 1085 (2004); RealNetworks Inc vDVD Copy Control Association Inc,641 F. Supp. 2d 913 (2009); Lohmann Fred Von, Unintended Consequences: Twelve Years under the DMCA, 2-20.

25 The Chamberlain Group Inc v Skylink Technologies Inc,381 F.3d 1178 (2004) and Lexmark International Inc v Static Control Components Inc, 387 F.3d 522 (2004).

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differentiate between an effective technological measure and a non–effective technological measure. If the purpose of a definition is to give clarity as to what will be the activities that will be covered by the provision, the amendment has failed in this aspect. Consequently it has also not done much to simplify possible problems relating to the interpretation of the term ‗plate‘ under Section 2(t) of the Copyright Act, 1957 which was earlier in existence.

From the drafting of the provision it seems that the legislature has left it entirely to the domain of the judiciary to decide as to what will comprise an effective technological measure and what will constitute circumvention. This is a policy decision that should have taken into account various facts like identification of all effective technologies that have minimum adverse effect on the legitimate interest of the public, recognition of all technologies that serve the need of the owners of copyrighted works protected by technology, etc. Further, the application of the provision essentially lies in the meanings attributed to these words and leaving them to the judiciary does not seem to be a commendable approach.

The WCT and WPPT mandate is that States need to safeguard only those technologies which have been used to protect rights conferred by the respective convention and under the Berne mandate. It further restricts those acts which are not authorized by the author or restricted by the law. The Indian provision says that it can be ‗applied for the purpose of protecting any of the rights conferred by this Act‘. This provides that any technological measure applied for the protection of any and all rights provided under the Act will be covered. The first category of rights protected under the Act is the economic right (Section 14), the major being the right of reproduction which comprises of making available of physical copies of the work and the right of communication of the work which comprises of making the work available otherwise than by issuing physical copies. It is this right of communication of the work to the public that is most significant in the online digital context.

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The earlier Copyright Act, 1957, under the right of communication to public, did cover the Internet scenario in a limited way. To bring further clarity, the Amendment Act of 2012 modified the definition of communication to public [(Section 2(ff) of the Copyright Act, 1957] so as to include the online context. This means that the author of the work has the right to make the work available to the public at large or to a particular category of the public. This in turn confers on the author a right to grant or deny access to a particular work, in relation to the whole world or any specified group. When the provision dealing with imposing liability for circumvention of technological measures comes into force, the right of regulating access to the work will also devolve on the author of the work. This means that the copyright regime thereon has the duty to protect this right also. This implies that a technological measure that is intended to protect access will also be covered within the said provision for the reason that access right is a protected right. This also means that circumvention of an access control technological measure will also attract liability, though the same has not been particularly laid down as opposed to the laws in US laws where there it isn‘t a mandate that such circumvention must lead to copyright infringement. This has caused much difficulty since persons who had circumvented the protection technology had been held liable even in cases of mere circumvention not leading to any kind of loss to the owner of the protected copyrighted work. In EU, however, direct link between the act of circumvention and resulting infringement is obligatory. It can be see that the new Indian provision has also followed the same line, underlining the fact that the purpose of copyright law is to protect what is due to the author of an original work.

Part III: Conclusion and suggestions

Copyright law provides one of the most important forms of intellectual property protection on the Internet. Considerable challenges are presented, however, in adapting traditional copyright law, which was designed to deal

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with the creation, distribution and sale of protected works in tangible copies, to the electronic transmissions of the online world in which copies are not tangible in the traditional sense, and it is often difficult to know precisely where a copy resides at any given time within the network.

The Copyright (Amendment) Act, 2012, seeks to make its relevant provisions conform with the WCT, 1996, and the WPPT, 1996, ―to the extent considered necessary and desirable‖. The amendments strengthen the rights of the authors, streamline the process of assignment and grant of licenses, facilitate better access to works, and extend fair use provisions, in general and in particular to the internet. The changes made in the provisions of assignment and licensing and in copyright societies are expected to streamline business practices but has an underlying concern about protecting authors‘ interests.26

By including the Digital Rights Management (DRM) provisions in the Indian Copyright law, without engaging in due economic analysis as to their need as well as consequences, the proponents of the new DRM provisions have risked a reduction in social welfare. The danger is further aggravated by fact that the new legislation does not even provide the mandatory periodical review of the working of those provisions.27 Better and sufficient protection is required for the right holders in the digital world.

The amendment which provides for protection of technological measures also calls for the extension of the provision to include cinematographic films and sound recordings as a category of work. The recognition of these works, now available in the digital format gives an enormous boost to the entertainment industry.28 Currently, the rate of work transmitted through on-demand

26 Zakir Thomas, Overview of changes to the Indian Copyright law, Journal of Intellectual Property Rights, 17(2012) 333. 27 Arul George Scaria, Does India need Digital Rights Management Provisions or Better Digital Business Management Strategies, Journal of Intellectual Property Rights, 17(2012) 473 28 Arathi Ashok, Technology Protection Measures and the Indian Copyright(Amendment) Act, 2012: A Comment ,Journal of intellectual Property Rights,17(2012) 529

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services, live streaming, downloading etc., is very low and accounts only to around 3 percent of the total transaction in the industry on a yearly basis29. But with the availability of higher broadband width, the contribution of this sector is expected to grow to a higher level. Thus, it can be concluded that the amendments introduced by the Copyright (Amendment) Act, 2012 are forward looking which will enable the Indian Copyright Act of 1957 to retain its claim to be one of the strongest legislations in the world.

29 Sensarkar Nilanjana, The potential impact of digital rights management on the Indian entertainment industry, Journal of Intellectual Property Law and Practice, 6(1)(2007) 47.

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INDIAN CABOTAGE POLICY: A CRITICAL ANALYSIS

Somya Tiwari*

Mahak Garg**

Introduction

Cabotage policy bears great importance on the coastal shipping of a country and especially for a peninsular country like India it presents a vast number of opportunities for internal trade through sea routes. Majority of the maritime nations like the China, USA, and Indonesia etc have placed restrictions on the movement of cargo along coastal ports of their country, i.e. Cabotage, by their own flag vessels.

As per the definition coastal vessel means a vessel of Indian registry with exclusive Indian crew, that is engaged in carriage by sea of cargo or passengers, from one Indian port to another port or to a place in India, and/or any other vessel which has for specified period of license for engagement in coastal trade issued by the Director General of Shipping, Govt of India.

Cabotage in India, which is provisioned in (Part XIV) Sections 406 & 407 of Merchant Shipping Act, 1958, is not absolute. As per this law, only Indian flag vessels can carry cargo from one Indian port to another Indian port. On the other hand, permission can be granted to foreign flag vessels to carry cargo between Indian ports, if Indian flag ships are not available.

Presently, Indian vessels may be owned only by Indian entities, under the prevalent extant exchange control laws, foreign entities may invest upto 100%

______

* University of Petroleum & Energy Studies, Dehradun, India

** University of Petroleum & Energy Studies, Dehradun, India

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in Indian ship owning and ship-operating companies. Such companies enjoy privileges granted to any Indian company and may acquire ships flying the Indian flag with 100% overseas debt/equity finance method.

The Indian National Ship Owners‘ Association (INSA) considers the absence of absolute cabotage the major reason for low investments in coastal shipping and strongly are against the move of relaxing the cabotage law arguing and opposing by stating that this will not give a level playing ground for Indian bottoms. According to the existing cabotage policy, no foreign ship can engage in coastal trade in India (trade between ports in India) except under a licence from the DG (Shipping). The cabotage restriction often escalate the costs of transportation as a foreign vessel cannot transport goods within India, they tend to unload on a foreign port and then an Indian vessel picks up the goods from that port and brings it to India. This system also proves beneficial for Indian traders as it promotes independence in trade aspects, increases employment opportunities and gives controlling power in the Indian hands.

On scrutinising the past records of coastal trade, it is clear and evident that the present cabotage policy did not improve coastal trade to the desired levels. The percentage of coastal shipping in India is only 7% of cargo traffic against 43% in Europe. Some relaxation has been brought in Cabotage policy for container vessels to attract foreign mainline vessels and decontrol of freight and passenger fares to promote coastal trade, the stringent Cabotage regulations are now being liberalized to make the trade economically friendly.

Relaxation in Cabotage Policy for Trans-Shipment of Exim Containers to and From International Container Transhipment Terminal in Cochin

The Union Cabinet on 6th-Sept, 2012 approved relaxation of Cabotage Policy under the Merchant Shipping Act, 1958 for transhipment of Export-Import (EXIM) containers to and from the International Container Transhipment Terminal (ICTT) at Vallarpadam, Cochin.

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This restriction is one of the main factors that discourage the mainline foreign vessels from calling at ICTT, Vallarpadam. The primary objective of relaxation in Cabotage Policy is for ICTT, Vallarpadam to attract cargo destined for Indian ports which are presently being transhipped at Colombo and other foreign ports. This initiative is expected to promote transhipment of Indian cargo from ICTT, Vallarpadam and reduce dependence on nearby ports1.

The Indian container traffic has seen a steady growth over the years. Despite this, more than half of the container traffic of India is being transhipped at ports outside India mainly at Colombo, Singapore, Salalah and Jebel Ali. This is because India had no port near international sea routes to handle large mainline vessels. Cochin Port enjoys nearly the same locational advantage as Colombo port with a mere 76 nautical miles deviation from the main East West shipping route. Therefore, in order to attract mainline vessels for transhipment of Indian containers at ICTT, Vallarpadam, the present relaxation in Cabotage Policy has been given which permits foreign vessels to operate feeder services for a period of three years. This relaxation will be reviewed after three years. The relaxed Cabotage policy would allow foreign flagged vessels to pick and drop country‘s domestic cargo between different ports along the Indian coastline without prior approval, is sure to bother Indian ship owners, who have already been hostile towards this relaxation, even for DPW.

The Rakesh Mohan Panel

Shipping in India owes a lot to Rakesh Mohan, a former deputy governor at India‘s central bank. India took up a globally followed taxation system for the shipping industry in 2004 by introducing a tax based on the cargo carrying capacity of ships, as per the recommendation made by Mohan in 2002. The

1 Press Information Bureau, Government of India, Release ID-87542, http://www.pib.nic.in/newsite/erelease.aspx?relid=87542, 6 Sept, 2012

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panel headed by Rakesh Mohan, wrote in its report presented to the government that ―The more desirable and absolute cabotage might be imposed beyond a certain growth in national tonnage (shipping capacity) and achievement of desired outcomes‖. The tonnage tax- a regime in which close to 95% of the global shipping fleet operates-pruned the tax outgo of Indian shipping companies to 1-2% of their income, as compared with the corporate tax rate of 33.9%. Tonnage tax is applicable only to those ships that are registered in India and fly the Indian flag. Hence, the Rakesh Mohan panel recommendations on cabotage will carry a lot of weight with the government.

The Rakesh Mohan panel recommendation and suggestions will definitely improve the chances of other Indian ports such as Pipavav, Mundra, Vizag and Vizhinjam on getting a cabotage relaxation. The aforementioned ports have sought easing of cabotage for their respective ports, same as has been given to the Vallarpadam facility, in order to achieve full potential and efficiency. This might also assist efficient movement of containers and ease congestion at ports and port storage. Shipping ministry of India, however, is not in favour of relaxing cabotage for more ports.

Containerization – Driving Force for Coastal Shipping

Containerization density in India is lesser (18%), compared to the world average, and although rising containerization is one of the main trends expected to drive coastal shipping to higher levels. The successful implementation of India‘s first International Container Transhipment Terminal at Vallarpadam, Cochin and the proposed Vizhinjam International Transhipment Terminal are expected to catalyze the growth and development of coastal shipping further as container volumes are projected to grow much higher from all Indian ports. Currently around 70% of the Indian containerized cargo is getting transhipped at Dubai, Colombo, Salalah and Singapore. The

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reliance and dependence on foreign transhipment ports make the import and export of India less competitive and expensive in the international market.

Restriction imposed by cabotage policy has an adverse effect on the growth of India‘s first and only transhipment terminal, ICTT-Vallarpadam, which is in its infancy. This presents a classic example of the need of relaxing the existing Cabotage restrictions for the promotion of coastal shipping in particular and of shipping trade in general. Good connectivity (sea/river, rail, road) to pool cargo from other Indian ports/ overseas and delivering the cargo to final destinations is required for the success of a hub port. Colombo shipping lines are free to feeder in/out container to any Indian ports without any difficulty and this increases the acceptance of Colombo as a preferred hub port.

The capacity of ships to carry cargo is numerous times greater than that of rail wagons or trucks and hence, coastal shipping offers the benefit of low transport, operating & logistics costs to the industry.

―In view of the critical implication of this regulation in the successful implementation of the ICTT project and in the larger interest of economic self- reliance of the Indian EXIM trade, it is crucial that the Cabotage Law is relaxed to enable transhipment of containers through foreign flag vessels from ICTT, Cochin. The Committee, therefore, recommends that the Government should immediately undertake a review of the Cabotage law and take appropriate decision in consultation with all the stakeholders involved‖2.

Cabotage Policy in Other Countries

Most maritime nations such as China, USA and Indonesia practice absolute cabotage which restricts movement of cargo on local routes only on their own flag vessels. Effective on January 2013, China issued new regulations that further underscore the ban on foreign-flagged ships on Chinese waters. This

2 The Department-Related Parliamentary Standing Committee on Transport, Tourism & Culture, 170th Report on Modernization of Major Ports, 11.8.2011

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kind of approach, however, might be premature in the case of countries such as India, a country, which has a long way to go before becoming self-reliant in supporting and meeting the needs of coastal sea transport. Only after this is achieved will it be worthwhile to consider imposing absolute cabotage.

Malaysian Government has relaxed their cabotage law in 2009 in respect of transport of containerized transhipment cargo to promote Port of Tanjung Pelepas and particularly to assist Malaysian Shippers. The policy succeeded and within a span of 10 years PTP handled 6.53 million TEUs in 2010 and got itself placed at 17th position among the top 30 container ports of the world. Amusingly, 95% of the total containerized cargo handled is transhipment cargo3

European Shipping Industry: A brief overview

Shipping is extremely important to the European Union and it is the largest trading block on the globe. Almost around 90% of its trade with the rest of the world is carried by sea routes and about 40% of its internal trade is carried by sea routes. The EU has a coastline which twice that of Russia and thrice that of the United States, thus it is acutely aware of maritime safety and environmental issues related to it. More than 350 million passengers sail annually through its 1200 ports. The European ports are major employer in the European Community and a significant source of foreign income and investment.

All the European Union ship owners are free to provide maritime or cabotage services either between Member States or within Member States. The European Union "cabotage" rules ensure that the maritime transport services within a Member State, that is, purely national connections, can be offered by companies of other Member States. The European Union rules take into consideration the issue of public service obligations and, in view of ensuring

3 Dr. Jose Paul, Cochin or Columbia-Which one should survive, Business line.

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that islands and far distant maritime regions have adequate connections with the mainland territories.4 Safeguard measures may be taken by the Commission where the internal market is seriously disturbed by the liberalization of cabotage. Such measures may include the temporary exclusion of the area concerned from the ambit of the Regulation.

On 1 January 1993 maritime cabotage was liberalized. In the case of countries like France, Italy, Greece, Portugal and Spain mainland cabotage was gradually liberalized according to a specific timetable for each type of transport service. Mainland-island and inter-island cabotage for these countries was liberalized in the year 1999.

The impact of opening up the cabotage services market differs from state to state. Some Member States have not been at all affected; while some have completed the liberalization of maritime cabotage by the deadline, others, which were allowed to implement the Cabotage Regulation circumspectly, were affected in varied ways. For instance let us consider the example of France, the Cabotage Regulation produced no effect on the evolution of the maritime cabotage services market for France since, in practice, France applied the host State rules as established by the Regulation.

Similarly, the introduction of the Cabotage Regulation seems to have had no significant impact on the market of Italian cabotage where both goods and passengers are transported in cabotage by ships bearing the Italian flag. Member States flags appearing on the cabotage market, they have not remained in the market. Hence, almost ten years from the full liberalization of maritime cabotage services, the market is declining for cargo traffic between mainland territory ports and it is only marginal in respect of cargo traffic between small islands.

4 Mobility and Transport: Maritime – Internal Market Services- Cabotage http://ec.europa.eu/transport/modes/maritime/internal_market/services_en.htm

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Critical Analysis of the Cabotage Policy

The Indian peninsula has a long coastline with 12 major ports and 184 minor or intermediate ports which provides for maritime economic growth. Despite this more than half of India‘s annual container cargo is being trans-shipped at ports outside the country, mainly at Colombo, Singapore, Salalah and Jebel Ali. This is because India had no major port near or along the international sea routes to handle large vessels other than Cochin. This is a geographical inability about which nothing much can be done about. It‘s not the geographical disability that has caused much harm but greater harm has been caused due to inordinate policies that regulate the coastal shipping business in India.

The Draft Coastal Shipping Policy submitted to Ministry of Shipping for approval recognizes that due to lack of containerization & restrictions on feeding of the cargo under the current Cabotage policy, a considerable part of Indian cargo for transhipment through containers gets diverted to Colombo, Singapore & Jebel Ali Ports. If coastal shipping in India is opened up to foreign flag vessels, it will provide a significant boost to containerization levels and related infrastructure. However Indian shipping companies will lose significant market share hence their concerns must be heard.

In order to critically evaluate the merits and demerits of the new and the earlier governmental regulation with respect to the Cabotage Scheme in India it is necessary to delve into the reasons for firstly effectuating this policy. Further, such reasons are to be analysed in view of the need that has caused relaxation in the policy. In 1990-1991 the Cabotage policy was reformed to achieve the following purposes:

a) Reducing dependence on foreign shipping services, b) Safeguarding import of essential supplies for India‘s economy, c) Reserving 100% coastal trade for Indian flag bearing ships

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d) Ensuring adequate shipping services to meet India‘s requirements for coastal trade, e) Improving the balance of payments position through import substitution and export of shipping services. A close scrutiny of the objectives behind the strict Cabotage policy reflects that while ensuring economic benefit and growth of the business for the natives, the policy makers disregarded the effect of the globalization and liberalization of economy. Secondly, one of the drawbacks of the Cabotage policy was that though it gave an exclusive market to the Indian Shipping Industry but the service providers did not have enough resources to appropriately tap the market.

The stricter Cabotage policy was advantageous for following reasons:

i) It enabled the development of shipping services in India and reduce dependence on the foreign service providers, ii) As the competition from the foreign service providers was reduced it provided a level playing field to the Indian counterparts and greater opportunities of growth was available to them, iii) As only Indian flag vessels could operate in the coastal trade all import and export activities had to be done through the Indian Shipping service providers , thus helped in generation of foreign exchange, iv) The freight Charges were completely guided by the domestic determinants. v) Further Cabotage in certain way also provided privacy and security, by keeping away foreign entities from domestic waters. With far reaching implication, the stringent Cabotage policy had certain drawbacks:

i) Though the Shipping market was made exclusive to Indian flag vessels, the services providers neither have enough resources nor proper services to adequately exploit the market. For instance, the

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boxes transhipped by mainline vessels at ICTT don't get cleared promptly to other destination ports on the coast, as coastal vessels aren't easily available. For example, CMA CGM, France's number one container operator, reportedly withdrew from Vallarpadam and returned to Colombo, because containers delivered by it at Vallarpadam took more than 36 days to be transhipped to the destination port. ii) Further, the Indian service providers charged much higher as compared to the foreign shippers, thus causing dismay to the customers. Cabotage restricts the availability of lower cost foreign-built and foreign-crewed vessels during periods of normal peacetime transportation needs. This keeps domestically operated transportation costs high. iii) Abandonment of the foreign vessels stopped the fore exchange earnings for the port. iv) High crew and operating costs for the foreign shipping service providers under the approval route. It was also pointed out that the stringent cabotage policy also kept at bay important investment in the sector which would have been available and was also much necessary.

There occurred considerable decrease in Cargo available for transport leading to loss of business to the ports. Colombo Port handles a transhipment throughput of 2 million twenty foot equivalent units (TEU) from India. However, the ICTT is currently doing only a meagre transhipment business of 20,000 TEUs a year. This is expected to go up significantly with the relaxation of the law.

The Parliamentary Standing Committee of Transport, Tourism and Culture in its 170th Report on Modernisation of Major Ports, presented to the Rajya Sabha, suggested review of the cabotage restriction and taking of an

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appropriate decision in consultation with all the stakeholders, keeping in view the larger interest of the country's trade, as well as the Vallarpadam ICTT. The Director General of Shipping too expressed that a ―nuanced policy‖ is required for increasing participation of the foreign flag vessels.

Howsoever the relaxation of the Cabotage Policy has sparked new debate and called in for following cause of concerns:

The national ship-owners point out that the economy, as a whole, will stand to lose, if further relaxation is allowed. Further relaxation may prompt foreign flag carriers to participate in the country's coastal trade in a big way, benefiting the trade, at least initially, but harming the long-term national interest.

Foreign shipping service providers enjoy various fiscal benefits which is discriminatory to their Indian Counterparts. The foreign flag vessels are not built in India, nor are they compelled to employ Indian crew, they pay no taxes in India and the profits earned from Indian operation will not benefit our exchequer.

It is feared many foreign shipping companies are much bigger in size and scale of operation than the biggest of the Indian shipping companies. Providing further encouragement to foreign shipping, therefore, will simply sound a death-knell for our national carriers, it is feared.

The need is to cause balancing between the need of economic growth along with the interest of all stakeholders, as until any policy cause benefits to all segments economic growth cannot occur.

Conclusion

One of integral aspect of any law is its dynamic aspect i.e. all policies, regulation and schemes need to be adapted according to the prevailing socio- economic conditions and need. This requirement is more essential in case of

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policies aiming at economic growth of the country. The primary objective behind the Cabotage policy was to provide for development of the domestic market without the influence of the foreign participants. Under the original cabotage policy regulated access was provided to the foreign shippers through the approval route. The policy was followed for at least half a decade without any change.

With globalisation and India‘s step towards liberalization, our economy became more and more dependent on the rest of the world and it was slowly realized that in order to move towards development foreign participation is essential for our economy. In the shipping business too this need was felt and as a result the government on trial basis for a period of three years allowed 100% FDI for the Vallarpadam port. The intention behind such policy change can be inferred from the report presented to the Rajya Sabha which stated that:

―To be developed and recognized as a transhipment hub port in the region, the ICTT needs to mainly attract the mainline vessels, which are at present transhipping the Indian bound/origin containers, mainly at Colombo. The ICTT is thereby expected to facilitate price competitiveness of the Indian produce and reduce the dependence on foreign ports for transhipment, in the strategic interest of the Indian Exim trade. The Committee was informed that the Cabotage Law (Section 406 and 407 of Merchant Shipping Act, 1958) acts as a serious deterrent in the diversion of India bound transhipment traffic from Colombo and in facilitating the development of ICTT as a transhipment hub port.‖

This move aims at ensuring greater business, facilitation in the trade, promotion of healthy competition in the market moreover it aims to reduce the dependence on foreign ports. It is pertinent to point that while formulating the policy for the purpose of overall development interest of all the stakeholders needs to be considered. Any one sided approach would not serve the purpose

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as desired. Therefore following recommendations may enable the government to cater to the benefit of all:

i) In order to ensure level playing field amongst all players a considerable tax rebate as compared to the foreign players must also be provided to the Indian participants. ii) It should be emphasized that the foreign participants must employ a certain percentage of Indian for the purpose of their shipping business. iii) The government through the Competition Commission of India must keep check and also develop policies that not only ensure but also promote fair competition. iv) As pointed out that the Indian service provider lack in resources for competing with foreign players, the government should enunciate such policies that enable the Indian participants to achieve the same. v) The government should instead of making general rule for all ports, make specific relaxations and ancillary conditions for various ports after analysing the need and opportunities at such locations. Though the new policy has been subject to criticism and debate with respect to its effectiveness and profitability, however it should be seen as a welcome step towards opening new trade avenues in the Shipping sector. Along with the recommendations made and regular revision according to the needs of the economic culture, it would be benefitting for the country.

REFERENCES

Reports & Policies

 http://www.prsindia.org/parliamenttrack/parliamentary-committees/schedule-of- standing-committee-meetings-1016/www.rgics.org%2Ftest%2Fwp- content%2Fuploads%2F2012%2F10%2FMODERNIZATION-OF-MAJOR- PORTS.pdf&ei=7F5bU_j9EszAfU0IDACg&usg=AFQjCNG8fNmrRMBanIopFOkk 6YEFAR56sg  https://www.rajyasabha.nic.in%2Frsnew%2Fannual_report%2F2011%2FTT.pdf&ei =7F5bU_j9Esz-rAfU0IDACg&usg=AFQjCNGwtk78--U4Mv420TsJm7b5iCAdvQ  https://www.statistics.gov.in%2Fresources%2Fcommittee-wise-reports-presented- rajya-sabha-19th-july-2013%2Fdownload&ei=7F5bU_j9Esz- rAfU0IDACg&usg=AFQjCNGgonvVuTwCLJWu5iFxvtB_J6ShyA

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 www.labour.nic.in/upload/uploadfiles/files/ActsandRules/Service_and_Employment/ The%20Merchant%20Shipping%20Act,%201958.pdf  http://dgshipping.gov.in/Content/PageUrl.aspx?page_name=ShipManualChap1  http://dgshipping.gov.in/Content/MerchantShippingAct.aspx  https://www.kerala.gov.in%2Fdocs%2Fpdf1%2Frfd%2Frpt12_13%2Fport12_13.pdf &ei=ZmFbU8WzNMKPrge2g4CgCg&usg=AFQjCNEYNnwTeTVe1QzxGj9WtTU NRiGLsw Others

 http://articles.economictimes.indiatimes.com/2013-11- 13/news/44031148_1_vendors-tiruchi-fabrication  http://www.financialexpress.com/news/for-bhel-power-marriages-aren-t-made-in- heaven/1118423  http://www.asialaw.com/Article/1971108/Search/Results/Cabotage-Regulations-and- Indias-Shipping-Industry.html?Keywords=industry

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A STUDY ON BARS TO MATRIMONIAL REMEDIES UNDER VARIOUS STATUTES

Ayushi Kalyan*

Bhavinee Singh**

INTRODUCTION

All personal laws provide certain provisions for matrimonial remedies on various grounds. But the right of the petitioner or the aggrieved party to seek relief is not absolute. The mere fact that a ground is statutorily available is no guarantee that the petitioner will get a relief on that ground. The petitioner has not only to establish that the grounds prescribed for the relief sought for, exist, but also that there are no circumstances which would debar him/her from getting the relief despite their existence. Thus the grounds to prove that the petitioner is not innocent are known as bars to matrimonial remedies or reliefs. The petitioner in order to receive relief should be able to cross these bars before his/her petition will be granted.

These bars to matrimonial remedies is a particularly an aspect of fault theory of divorce and can be understood after knowing what the fault theory states.

FAULT THEORY OF DIVORCE

First part of the Fault theory of Divorce states that marriage can be dissolved only when either party to the marriage has committed a matrimonial offence. Under this theory it is necessary to have a guilty and an innocent party.1 Secondly even when the respondent is guilty of a matrimonial offence the petitioner will not be granted divorce if it is proved that he/she is not an

*Institute of Law, Nirma University, Ahmedabad, Gujarat, India **Institute of Law, Nirma University, Ahmedabad, Gujarat, India 1Anoop Kumar, Divorce under The Hindu Marriage Act, 195, available at: http://www.scribd.com/doc/9411637/DIVORCE-UNDER-HINDU-MARRIAGE-ACT-1955

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innocent party and has done an act which debars him/her from claiming the remedies. The burden of proof hence lies on the petitioner.

The Fault Theory thus establishes the dichotomy of guilt or innocence.

Another theory of divorce is that of Mutual Consent. The underlying rationale is that since two persons can marry by their free will, they should also be allowed to move out of their relationship of their own free will. However critics of this theory say that this approach will promote immorality as it will lead to hasty divorces and parties would dissolve their marriage even if there were slight incompatibility of temperament.2

In the original section 13, Hindu Marriage Act all grounds were fault grounds, Section 23 as a concomitant to that section contained the bars. According to the English law these bars are either absolute bars or discretionary. The bars as mentioned under the Hindu Marriage Act being different from English law continue to be classified as absolute bars since their very inception.

Section 23 as amended by the Amending Act of 1976 runs as under:

Ïn any proceedings under this Act, whether defended or not, the court is satisfied that- a. any of the grounds for granting relief exists and the petitioner is except in cases where the relief sought by him the ground specified in sub clauses (a), (b) and (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief, and b. where the ground of the petition is the ground specified in Clause (i) of sun section (1) of Section 13, the petitioner has in any manner been accessory to or connived at or condoned the act or acts complained of, or where the ground of

2 Sameeksha Chowla ,Divorce Under The Hindu Marriage Act, 1955 : The Law Decodified , available at: http://legaldesire.com/divorce-under-the-hindu-marriage-act-1955-the-law- decodified/

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the petition is cruelty, the petitioner has not in any manner condoned cruelty, and b. when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence; and c. the petition( not being the petition under section 11) is not presented or prosecuted in collusion with the respondent, and d. there has not been any unnecessary or improper delay in instituting the proceedings, and e. there is no other ground why relief should not be granted, then, and in such a case, but not otherwise, the court shall decree such relief accordingly.

Section 23(1) thus lays down the following bars:

1. Doctrine of strict proof or standard of proof and burden of proof 2. Taking advantage of one‘s own wrong or disability 3. Accessory 4. Connivance 5. Condonation 6. Collusion 7. Delay, and 8. Any other legal ground

A decree passed in disregard of the bars is a nullity.3

Some of the bars such as collusion and delay apply to all matrimonial remedies whereas some apply to only divorce. Most of the bars mentioned above are based on the maxim, ―one who comes to equity must come with clean hands.‖ These bars have been enacted in every matrimonial law except Muslim matrimonial law, though not uniformly. The bars are almost the same

3 Anupama vs Bhagwan, AIR 1972 Ori 163

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under the Hindu Marriage Act 1955 and the Special Marriage Act as provided in section 34. According to section 35 of the Parsi Marriage Act and Divorce Act and section 12 of the Divorce Act, the main bars are the same but under the latter bars apply only to the matrimonial remedies of divorce.

1. DOCTRINE OF STRICT PROOF

This doctrine is recognized under all matrimonial laws. Matrimonial proceedings are civil proceedings and in a matrimonial suit there are three situations that usually arise:

1. the respondent puts up appearance in the court and admits the guilt 2. the respondent does not put up any appearance in the court, the court proceeds against him in his absence i.e ex parte, or 3. the respondent appears in the courts and contents the claim of the plaintiff.

In a matrimonial case, whether the petition is defended or not, whether contested or not the burden of proof lies on the petitioner and he must prove his case beyond all reasonable doubts. This is called as doctrine of strict proof. Whereas in a normal civil proceeding it is only when the respondent contests his case that the plaintiff has to establish his case by submitting oral and documentary evidence.

Mukherji J has very aptly said that an action for divorce, a civil proceeding without doubt, becomes, in a trice, a criminal proceeding, all because of the application of the yardstick of proof beyond reasonable doubt which has in fact been the standard proof in a criminal case from the very beginning.4

Though the Supreme Court in early cases had stated that the petitioner must prove his case beyond all reasonable doubts, but in the case of Dastane vs

4 Sachindra vs NIlima, AIR 1970 Cal 348

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Dastane5, Chandrachud J (as he was then) struck a different note. According to the learned judge though the burden of proving cruelty lies on the petitioner the cruelty maybe proved by balance of probabilities. It is submitted that this is a healthy departure from the old doctrinaire view. This is now the standard of proof in all matrimonial cases. The modern matrimonial law lays more emphasis on the fact as to whether a marriage has broken down or not rather than on the guilt or innocence of the parties6.

2. TAKING ADVANTAGE OF ONE’S OWN WRONG OR DISABILITY

This bas is based on the principle that one who comes to the court must come with clean hands and the doctrine of sincerity. Section 23(1) (a) of the Hindu Marriage Act is very specific in stating that a person cannot be allowed to take advantage of his own wrong or disability and the same is the court‘s duty to ensure.

In the Specific Marriage Act Section 34 (1) (f) and in the Parsi Marriage and Divorce Act Section 35 (e) this bar is implicit in the words ―there is no other legal ground why relief should not be granted.‖ According to this bar if the respondent‘s guilt is related, directly or indirectly to some wrong or disability of the petitioner, the petitioner cannot be given the relief prayed for, even if he is able to establish his ground. For instance if a husband has been constantly very cruel to his wife and on that account the wife left the husband‘s house, his petition for restitution of conjugal rights shall not be entertained by the court since the husband himself has been the wrong doer and he is taking advantage of his own wrong. Similarly a petition for divorce or judicial separation cannot succeed in a case when petitioner seeks divorce on the ground that the respondent has become insane if it is shown that it was on account of the petitioner‘s cruelty, neglect or ill treatment that the respondent became insane.

5 AIR 1975 SC 1534 6 Dr. Paras Diwan, Modern Hindu Law, pg 192 (20th edition, 2009)

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However where a decree of judicial separation is obtained by a wife, the husband is no longer under any obligation to cohabit with her and his failure to do so would not constitute a wrong within the meaning of section 23.7 A party who relies on a statutory right cannot be said to be taking advantage of his own wrong in the absence of any serious misconduct on his or her part8.

This bar has not been enacted in all personal laws. It has only been mentioned in the Hindu Marriage Act. Even though the other statutes don‘t mention it, it is submitted that it will be included in the residuary clauses which these statutes contain.

3. ACCESSORY

Accessory being a term of criminal law implies active participation in the crime of the respondent. It is not necessary that a person should be an accessory only before or only after the act. He may be an accessory before or after the commission of the act. Also he might be an accessory at the time of commission of the act.

It is to be noted that this bar applies only to adultery, i.e when petition is filed on the ground of respondent‘s adultery under the Hindu Marriage Act9, the Special Marriage Act10 and the Divorce Act11. Hence in cases when the husband goes and brings agents for having intercourse with his wife, or if his wife goes out to a place in order to commit adultery and the husband acts as an escort to bring her back he is actively participating in the act and is being an accessory. When active participation is established, the husband cannot get a decree of judicial separation or divorce.

7 Sumitra Manna vs Chandra Manna, AIR 1988 Cal 192 8 Dharmendra Kumar vs Usha Kumar AIR 1977 SC 2218 9 Section 23(1)(b) 10 Section 34(1)(b) 11 Section 12

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4. CONNIVANCE

This bar is also based on the maxim of equity which states that: one who comes to equity must come with clean hands. Connivance is derived from the word ―connive‖ which means ―to wink at‖. In Accessory there is active participation by the petitioner whereas in Connivance there is corrupt intention but not active participation. To constitute connivance, consent, express or implied is necessary. If the petitioner is actively consenting, corrupt intention can be said to exist. In the case of K.J vs K12 it was said that when a spouse by voluntary deliberate conduct encourages the other spouse to commit a matrimonial offence it amounts to connivance. Also it is to be noted that when once the consent is established for the first act, it will not be a defence to say that he or she did not consent for its repetition.

Also another important point to be taken in consideration is mere inattention, negligence, folly, failure of apprehension or imprudence does not amount to connivance. Spying with a view to finding out the truth does not amount to connivance. But if the petitioner oversteps his spying and deliberately fosters and encourages a situation which results in the commission of adultery he cannot come forward and say that his motive was to obtain conclusive proof.13

According to the Hindu Marriage Act14, the Special Marriage act15 and the Divorce Act, connivance is a bar to the offence of adultery alone but as per the Parsi Marriage and Divorce Act16 it is a general bar.

5. CONDONATION

Condonation as defined in the case of Inglis vs Inglis17 is:

12 AIR 1952 Nag 395 (FB) 13 Dr. Paras Diwan, Modern Hindu Law, pg 195 (20th edition, 2009) 14 Section 23(1)(b) 15 Section 34(1)(b) 16 Section 35(1) 17 (1967) 2 All ER 77 at 79-80

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Condonation is the reinstatement of a spouse who has committed matrimonial offence in his or her former matrimonial position in this knowledge of all the material facts of that offence with the intention of remitting it, that is to say with the intention of not enforcing the rights which accrue to the wronged spouse in consequence of that offence.

In simple words Condonation means forgiveness of all such matrimonial offences as are known to or believed by the offended spouse so as to restore between the spouses the status quo ante. There is restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation, thus there must be two things: forgiveness and restoration. Also forgiveness is condonation when it results in completely restoring the offending party to the former position and is accompanied by cohabitation, with full knowledge of all the circumstances of the particular offence forgiven.18

In the case of Chintalapudi Sathiraju vs Chintalapudi Lakshmi19 a husband has sought annulment of marriage on the ground of fraud, by concealment of the fact that the wife had undergone thyroid operation due to cancer. Evidence however proved that he was apprised of the fact before the marriage. Apart from that they cohabited as husband and wife after the husband went with her for her check up. The Court held that fraud as alleged by the petitioner was condoned and his petition was rejected. Also I t is the duty of the court to consider the question of the condonation, even when it is not pleaded as defence by the respondent. The Himachal Pradesh High Court in the case of Nirmala Devi vs Ved Prakash20 held that in view of section 23(1)(b) in every case it is the duty of the court to find in every case whether cruelty had been condoned.

18 Kumud Desai, Indian Law of Marriage and Divorce, pg 707 (7th edition, 2008) 19 (1993) 2 DMC 422( Andhra pra) 20 AIR 1993 HP 1

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Section 14 of the Indian Divorce Act states that no case of adultery shall be deemed to have been condoned within the meaning of the act unless cohabitation has been resumed. Under the Hindu Marriage Act and the Special Marriage Act this bar applies to the offence of both adultery and cruelty.

6. COLLUSION

Collusion is an agreement, arrangement or understanding, express or implied, between the parties or their agents wherein matrimonial remedies are sought to be obtained by deceiving the court by misrepresentation, exaggeration or suspension of facts or by fabricating evidence where in fact no ground or sufficient ground exists for the matrimonial relief sought21. The burden of proof in this case is on the petitioner.

In other words, in the context of matrimonial relief when a matrimonial proceeding is initiated or conducted by an agreement or understanding between the parties it is collusion. Under section 23(1)(c) of the Hindu Marriage Act 1955 the court before granting relief has to satisfy itself that the petition is not presented or prosecuted in collusion with the respondent. Special Marriage Act 1954 in section 34 provides for a similar provision. Section 47 of the Indian Divorce Act 1869 provides that: ―every petition under this Act for a decree of dissolution of marriage, or of nullity of marriage, or of judicial separation state that there is not any collusion or connivance between the petitioner and the other party to the marriage.‖ Likewise under section 35(b) of the Parsi Marriage and Divorce Act 1936, the court in any suit for nullity, dissolution or divorce has to satisfy itself that the husband and wife are not colluding together.

In the case of Janardhan Rao vs M Aruna Kumari,22 a wife filed a petition for judicial separation and the husband in order to end the tension indicated in his

21 King vs King AIR 1930 Cal 418 22 AIR 2000 Andhra Pra 127

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statements that he had no objection. The decree was passed and when after a year husband sought for divorce the wife resisted the same. The family court rejected the husband‘s petition that the decree for judicial separation was without consent and literally a collusive decree. Though on appeal relying on precedents the court held that a consent decree per say cannot be taken to be a collusive decree in matrimonial cases.

7. DELAY

It is only unnecessary and improper delay which would be considered as a delay in filing a suit for matrimonial relief in matrimonial litigation.

The idea is that the offended spouse should not be allowed to hold his weapon, i.e the ground which entitles him/her to relief over the head of the other party for an unlimited or unreasonable period.23

In the case of Teja Singh vs Surjeet Kaur24, the wife had left the husband seven years before the presentation of the restitution petition by him. During this time the husband totally neglected her and dint even communicate with her. The petition was filed after the wife obtained a maintenance order under CrP.C. It was held that there had been unnecessary and improper delay in filing the petition. Whereas in the case of Nirmoo vs Nikka25, there was a delay of 11 years in filing a petition of divorce by wife and wife in her explanation stated that she kept quiet all along and had no intention to go to the court but for her husband‘s harassment which began soon after she had inherited some property from her father. This was accepted by the court to be a reasonable explanation of delay.

Also all the matrimonial law statutes provide that a matrimonial petition should be presented without unnecessary and improper delay. Section 35 of

23 Prof Kusum, Family Law Lectures, pg 204 24 AIR 1962 Punj 195 25 AIR 1968 Del 260

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the Parsi Marriage act and the wordings of the Section 34(e) of Special Marriage Act, 1954 and section 23(d) of the Hindu Marriage Act state that it is unnecessary or improper delay only which should be a bar against the petitioner. Section 14 of the Divorce Act, refers to unreasonable delay which in this context includes unnecessary and improper delay also.

ONE YEAR BAR

Another important bar to matrimonial relief is the ‗One Year Bar‘ which is becoming increasingly popular with every passing generation. It is a matter of public policy, which simply means that one cannot file a petition for divorce within one year after the marriage, has taken place. The purpose of this bar is to ensure that couples give a fair trial to each other and try to make the marriage work well. Also, this ensures that they do not immediately think of judicial proceedings in haste.

The Hindu Marriage Act 1955 and the Special Marriage Act 1954 provide that as a matter of general rule, no petition for divorce shall be entertained by a court, if it presented within one year of the marriage. Prior to the Marriage Laws (Amendment) Act 1976 the period was 3 years. But now an exception has been devised to this rule. The court may entertain a petition for divorce before the completion of a year from the date of marriage under the following conditions:

1. exceptional hardship to the petitioner; 2. exceptional depravity on the part of the respondent 3. due regard to be given to the interest of the children 4. court to consider whether there is reasonable probability of reconciliation before the completion of a year.

.

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If the court is satisfied on all the above counts then it may allow a petition before the expiry of a year. As is evident the whole idea is solely to save a marriage as far as possible.26

It is to be noted that the bar under this section does not apply to petitions for annulments. In Ravulaapalli vs Thellamekak Ratnam27the wife sought annulment of marriage on account of husband‘s impotence within one year of marriage. The court held that the section applies to cases where marriage is sought to be dissolved by a decree and not where a marriage is sought to be annulled on prescribed grounds.

CONCLUSION

Considering all the troubles and problems that arise between married couples in marital relationships, the law provides the aggrieved party/parties various remedies like divorce, judicial separation etc. But the right of the party to make use of the remedies is not absolute and this is how it is made sure, whether the party who files the suit for relief is the genuine aggrieved party or not. The bars as mentioned under The Hindu Marriage Act 1955, Special Marriage Act 1954 and Indian Divorce Act 1869 are same in their spirit and essence though their applicability tends to differ.

These bars to matrimonial remedies are of utter importance and they ensure that the innocent party is not exploited and the wrongdoer is not given any undue advantage. The bars also ensure that the Court process is not misused or abused.

26 Prof Kusum, Family Law Lectures, pg 209 27 AIR 1998 Andhra Pra 371

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REFERENCES

1. http://www.lawisgreek.com/how-condonation-affects-marriage-disputes-under- indian-laws/ 2. Sameeksha Chowla, Divorce Under The Hindu Marriage Act, 1955 : The Law Decodified, available at: http://legaldesire.com/divorce-under-the-hindu-marriage- act-1955-the-law-decodified/ 3. Anoop Kumar, Divorce under The Hindu Marriage Act, 195, available at: http://www.scribd.com/doc/9411637/DIVORCE-UNDER-HINDU-MARRIAGE- ACT-1955 4. Paras Diwan, Modern Hindu Law,Allhabad Law Agency, 18th ed. 2007 5. Desai S.A., Mulla Hindu Law, 19th ed. (2005), Vol-2 Lexis-Nexis, New Delhi, 7th ed. Rp.2007 6. Kusum Desai, Indian Law of Marriage and Divorce, 7th ed. 2008 7. Prof Kusum, Family Law Lectures, Family Series – 1, Lexis Nexis Student Series, 3rd ed. 2011 8. Mayne, Hindu Law & Usage, 15th edition (2003) Bharat Law House, New Delhi. 9. P. Rathnaswamy, Marriage, Divorce and Morality (New Delhi: Deep and Deep Publications, 1995).

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COMPARATIVE STUDY OF ABUSE OF DOMINANCE IN INDIA, USA AND EU

Prama Mukhopadhyay*

1. Introduction

Dominance means having authority or control. A dominant firm would include any firm or enterprise having substantial market power or control over the market. Such a firm will be in a position to disregard market forces and unilaterally impose trading conditions, fix prices, etc. The abuse may lead to restriction of the competition, or the elimination of effective competition. Some of the various forms of abuse are: price fixing, imposing discriminatory price, predatory pricing, limiting supply of goods or services, denial of market access, etc. It is a way of interfering with competition in the market place.

Abuse of dominance occurs when a firm in a dominant position engages in practices that are aimed at stifling the level of competition in the market. Competition law prohibits such practices. Dominance is normally analyzed by judging the extent to which an organization has the ability to influence the price of a particular commodity or service through its individual action. As the name suggests, the concern is not on dominance, as this may be a result of legal business advantages, but the abuse of such dominance to negatively affect competition in the market. Abuse of dominance is illegal in most of the countries and different jurisdictions have enacted laws to curb the issue of abuse of dominance. This article would be dealing with the comparative study of abuse of dominant position in India, EU and USA.

______

* 5th Year, School of Law, KIIT University, Bhubaneswar, Odisha

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2. Categories of abuse of dominance practice

Abuse of dominance practices can be split into two categories: Exploitative practices and Excessive practices

2.1 Exploitative Practices

These are actions where a firm in a dominant position engages in practices that are intended to gain profits by exploiting customers or competitions. This includes practices where a firm takes advantage of its market power by engaging in the following:

2.1.1 Excessive Pricing

This occurs when a firm in a dominant position takes advantage of the absence of competition by charging excessively high prices compared to the situation that would have prevailed under condition of competition. It is anticompetitive and many competition laws prohibit it. This makes the demand for the downstream product very low and only few firms are interested in producing it.

Eg- Ceylon Oxygen Company, a monopoly Sri Lankan company, used to manufacture and distribute oxygen and other industrial gases. The prices of the domestic gas cylinder were hiked substantially. Later on a new company entered into the market. They have 20% of the market share. Even with the new player in the market, the price of domestic cylinder is still high. There was no substitute of LPG.1 It was a practice of excessive pricising.

2.1.2 Price Discrimination

This is normally done through applying different prices (price discrimination) to buyers in the absence of appreciable cost differences, or charging the same price to customers even though there are different costs for supplying to them.

1 Report of the Asia- Pacific Regional Workshop on Competition Law, Jaipur, India, 16-17

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Eg- Ghotten Gas Agency, a Kholapur based cooking gas supplier in India, was forcing the buyers to buy hot plates at the time of releasing fresh gas connection. The Competition Authority held such a practice, where purchaser of one good is required to purchase some other goods which the customer may not even is interested in, to be a restrictive trade practice.2

2.2 Exclusionary practices

This refers to practices by a firm in a dominant position intended to suppress competition or drive competitors out of the market. This can be done through the following ways:

2.2.1 Refusal to Deal

Firms are free to choose to deal, and also give preferential treatment to traditional buyers, related enterprises, dealers that make timely payments or maintain the quality and image etc. of the manufacturer‘s product. This is subjected to limitation. A firm in a dominant position refuses to supply goods to a dealer without justifiable reasons. A firm in dominant position cannot exercise it as to destroy competitors without any justifications. Competition law in all jurisdiction discourage refusal to deal as it is anticompetitive in nature.

2.2.2 Predatory Pricing

Explanation 2(b) to section 4 defines predatory pricing. Predatory pricing occurs when a firm in a dominant position temporarily charges particularly low below cost prices in an attempt to eliminate existing competitors, or as a way of creating barrier to entry into the market for potential new competitors. The predator will suffer temporary losses during its low pricing policy, which it would recover through excessive pricing once rivals have been chased off the market. As low prices are beneficial to consumers, it is important for

2 Law of Monopolistic & Unfair Trade Practices, S. M. Durgar, 3rd Edition 1997

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competitors alleging predatory pricing to prove that the per-unit price being charged is indeed below the average unit cost of production. This is an anticompetitive practice as it directly reduces the number of players in the market. Eg- in international trade law dumping is a form of predatory pricing but it is dealt with under the anti dumping laws of the country.

2.2.3 Raising the Rival‘s Cost of Entering the Market

This arises when a firm in a dominant position engages in behavior that is meant to increase the cost of doing business for its rival smaller firm. For example paying higher wages than normal and then ensuring that the smaller firm is forced to pay the same rate, possibly through labour unions or strategic advertising to such a degree that it raises sunk cost investment for small firms and potential entrants. Such actions would be ensured to discourage entry and maintain dominance.

3. POSITION OF ABUSE OF DOMINANCE IN INDIA 3.1 Position under MRTP Act 1969

The Monopolistic and Restrictive Trade Practices Act (MRTP) 1969 frowns upon dominance but the subsequent act i.e. the Competition Act 2002 acts upon abuse of dominance. However, MRTP Act used to prohibit ―anti- competitive ―trade practice‖ i.e. ―restrictive trade practice.‖ The market share of an enterprise does not, as under MRTP Act, determine the dominant position of an enterprise, though it is one of the factors to be considered, along with other factors, including the market shares of its competitors, in determining whether it enjoys dominant position or not. The Act sets out the factors that are to be considered by the competition authorities in determining whether an enterprise enjoys a dominant position, as well as the method for determining relevant product and geographic market in which the dominant position is to be found. It is to be analyzed whether the result of the conduct indicated abuse of dominance in the market.

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3.2 Section 4 of the Competition Act 2002

Section 4 of the Competition Act 2002 is based on Article 82 of the EC (Euoropean Communities) Treaty. Explanation 2 (a) of section 4 of the Competition Act 2002 defines ‗dominant position‘ as the position of strength enjoyed by an enterprise that enables it to act independently of competitive forces prevailing in the relevant market. There is no sanction attached to dominance n isolation. The Competition Act 2002 only prohibits abuse of such dominance.

3.2.1 The elements that constitute a dominant position are- i) a position of strength

ii) that the position being enjoyed at relevant market in India (both product and geographical market).

iii) such a position that gives the enterprise the power to ‗operate independently of competitive forces in the relevant market‘, meaning thereby that it can at will, disregard market forces and conditions and impose its own trading conditions, which will include the prices at which it prepared to supply good or services.3

It involves two questions-

i) Whether the firm is in dominant position? ii) Whether the conduct of the dominant firm falls within the purview of abuse as defined in the Act.

3 T. Ramappa, Competition Law in Indiai -Policy Issues and Developments, p140 (2nd Ed. 2011)

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3.2.2 Abuse of dominance

Section 4(1) states that no enterprise or group shall abuse its dominant position.

The two aspects of the prohibition are: that the enterprise or group is in a dominating position and that it abuses that dominance.4

Section 4(2) (a) to (e) deals with the conducts which will be termed as abuse of dominant position and will attract the provision of Competition Act 2002.

Section 4 (2) (a)- directly or indirectly, imposes unfair or discriminatory—

(i) condition in purchase or sale of goods or service; or

(ii) price in purchase or sale (including predatory price) of goods or service.

Discrimination means differentiation relating to price, terms of sale, or the quality or quantity of what they supplied, and may extend to refusal to sell. The imposition of discriminatory, unfair conditions by the dominant enterprise, to any category of user, or any other enterprise having contractual relationship with the dominant enterprise, is abusive.

Section 4(2)(b) limits or restricts—

(i) production of goods or provision of services or market there for or

(ii) technical or scientific development relating to goods or services to the prejudice of consumers;

Limiting or restricting market for goods or services is anti-competitive, when a supplier in a dominant position insulates particular markets one from another

4 D. P. Mittal, Competition Law & Practice, Taxman, ,pg 283, (3rd Ed)

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and thereby engages in a differential pricing according to the level that each market can bear.5

In Director General v Gasom Gases (P.) Ltd.6, it was held that conditions imposed by the respondents about distributors ensuring smooth selling of 100 gas connections per month, and getting a maximum of 3,000 gas connections over a period of 30 months from the date of first supply, and also, maintaining full fledged showrooms in the defined territory, are restrictive trade practices.

Section 4 (2)(c)- indulges in practice or practices resulting in denial of market access [in any manner];

It is an abuse of dominant position. Refusal to deal, refusal to supply is the instances which can come under the purview of this section.

Section 4(2) (d)- makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

An enterprise when makes conclusion of contracts subject to acceptance by other parties which, by their nature or according to commercial usage, have no connection with the subject-matter of the contract abuses its dominant position. Forcing obligations which have no relation to the subject matter of a contract are illegal and anti-competitive.

The law therefore forbids ―tying‖ arrangements in a contract. Tying arrangements are where a party agrees to sell one product only on the condition that the buyer also purchase a different (or tied) product, or at least agrees that he will not purchase that particular product from some other supplier. This is unreasonable and unlawful. Section 4(2)(e)- uses its dominant

5 D. P. Mittal, Competition Law & Practice, Taxman, ,pg 318 (3rd Ed) 6 Director General v Gasom Gases (P.) Ltd, [1995]84 Comp cas.615 (MRTPC)

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position in one relevant market to enter into, or protect, other relevant market.7

3.2.2. Determination of abuse of dominance

The commission while determining whether a firm enjoys dominant position or not, will consider few factors-(a) market share of the enterprise; (b) size and resources of the enterprise; (c) size and importance of the competitors; (d) economic power of the enterprise including commercial advantages over competitors;(e) vertical integration of the enterprises or sale or service network of such enterprises;(f) dependence of consumers on the enterprise; (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise; (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers;(i) countervailing buying power; (j) market structure and size of market; (k) social obligations and social costs; (/) relative advantage, by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition; (m) any other factor which the Commission may consider relevant for the inquiry.8

Belaire Owner‟s Association v DLF Limited and HUDA9, the CCI held that ―market share‖ under section 19(4) is an important factor, it is not an indispensable factor.

A dominant position is always determined in reference to a relevant market, both the relevant product and geographical markets. There is an abuse of

7 Section 4(e) of the Competition Act 2002 8 Section 19(4) of the Competition Act 2002 9 Belaire Owner‘s Association v DLF Limited and HUDA, http://www.circ.in/pdf/Case_Study_08.pdf, (last visited on 11.9.14 at 6.30pm)

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dominant position if an enterprise uses its dominant position in one relevant market to enter into, or product, other relevant market.

3.2.3. Relevant Market, Relevant Geographic Market, Relevant Product Market

Section 2(r) defines ‗relevant market‘- ―relevant market‖ means the market which may be determined by the Commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets;

Section 2(s) - ―relevant geographic market‖ means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas;

Section 2 (t) -―relevant product market‖ means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use;

The purpose of ascertaining the market is to be able to examine whether an enterprise is dominant in a specific market, made up of the product, or the service, the competing suppliers and the buyers of the product or service, the competing suppliers and the buyers of the product or service, all operating in a particular geographic area. If an enterprise is found to be enjoying dominant position in a specific market , comprising a geographic and a product market, the next step would be to investigate if the prohibited abuse of a dominant position has taken place.10

Factors to be considered in determining the geographic and productive market

10 T. Ramappa, Competition Law in Indiai -Policy Issues and Developments, p147 (2nd Ed. 2011)

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Sections 19(5)-(7) are to be considered while determining the factors of geographic and productive market.

Section 19(5)11 For determining whether a market constitutes a ―relevant market‖ for the purposes of this Act, the Commission shall have due regard to the ―relevant geographic market‘‘ and ―relevant product market‖.

Section 19(6)12- The Commission shall, while determining the ―relevant geographic market‖, have due regard to all or any of the following factors, namely:—

(a) Regulatory trade barriers;(b) local specification requirements;(c) national procurement policies; (d) adequate distribution facilities; (e) transport costs; (f) language;(g) consumer preferences; (h) need for secure or regular supplies or rapid after-sales services.

Section 19(7)13- The Commission shall, while determining the ―relevant product market‖, have due regard to all or any of the following factors, namely:—

(a)physical characteristics or end-use of goods; (b) price of goods or service (c) consumer preferences; (d) exclusion of in-house production; (e) existence of specialised producers; (f) classification of industrial products

MCX Stock Exchange Ltd. & Ors. Vs National Stock Exchange of India Ltd. & Ors.14, CCI on 23rd June 2011 found NSE guilty of abusing its position in the market of stock exchange services for exchange trade derivatives in India.

11 Section 19(5) of the Competition Act 2002 12 Section 19(6) of the Competition Act 2002 13 Section 19(7) of the Competition Act 2002 14 MCX Stock Exchange Ltd. & Ors. Vs National Stock Exchange of India Ltd. & Ors., http://www.cci.gov.in/May2011/OrderOfCommission/MCXMainOrder240611.pdf, (last visited on 10.9.14 at 8.00pm

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4. Position in USA

The Sherman Antitrust Act (1890) does not contain expressions ―dominance‖, ―abuse of dominance‖, but it prohibits dominant activity of firms. The corresponding concept under that law is of ‗monopoly‘ and ‗attempt to monopolize‘. Section 2 of the Sherman Act states: "Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $10,000,000 if a corporation, or, if any other person, $350,000, or by imprisonment not exceeding three years, or by both said punishments, in the discretion of the court.‖15 This section addresses the actions of single firms that monopolize or attempt to monopolize as well as the conspiracies and combinations that attempt to monopolize.

Though the Act does not define dominance or abuse of dominance, still the word ―monopoly‖ has the same significance. Monopoly power is the power to control prices or exclude competition in the relevant market. A court will examine a firm‘s market power to see whether or not the firm‘s product has an inelastic demand curve, i.e., people or not willing to take substitutes. This would be evidence of monopolization. Monopolization and attempt to monopolization both are an offence under this Act. Along with a single person committing and attempt to commit monopolization, combine and conspire with any other person or persons to monopolize any part of the trade will also come under the purview of this section.

The emphasis is on the anticompetitive effect of the conduct and not on the mere existence of market power, this means that for a position of monopoly to be deemed illegal under the section, the firm concerned must have acquired or

15 Section 2 of the Sherman Antitrust Act 1890

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maintained this position through anticompetitive means, such as through the suppression of competition in the relevant market.16 Thus, situations in which the monopoly position is acquired or maintained through ‗growth or development as a consequence of a superior product, business acumen, or historical accident17 cannot be considered to fall within the scope of the prohibition in Section 2.

In Northen Pacific Railway Co. et al. v United States18- tying arrangement violates, when the seller enjoys a dominant position in the market for the ―tying‖ product and a substantial volume of trade in the ―tied‖ product is restrained.

Microsoft19 is a case pertaining to the maintenance, not acquisition, of monopoly power. The government claimed (and the court found) that Microsoft engaged in exclusionary practices to protect its monopoly.

5. Position in EU

The competition law of the European Union, contains a general prohibition on the abuse of dominance by undertakings/enterprises.

Article 102 of the Treaty on the Functioning of the European Union (hereafter ―Article 102 TFEU‖) is aimed at preventing abusive exclusionary and exploitative conduct by dominant undertakings. It was previously a part of Article 82 EC.

Any abuse by one or more undertakings of a dominant position within the internal market or in a substantial part of it shall be prohibited as incompatible with the internal market insofar as it may affect trades between Member State. Such an abuse may, in particular, consistes in:

16 Maheer M. Dabbah, International and Comparative Competition Law, p 243 (1st Ed Cambridge, 2010) 17United States v Grinnell Corp. 384 US 563 (1900) 18 Northern Pacific Railway Co. et al v United States, 356 US 1 19 United States v. Microsoft Corp., 147 F.3d 935, 948

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(a) Directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions. (b) Limiting production, markets or technical development to the prejudice of consumers. (c) Applying dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage. (d) Making the conclusion of contracts subject to acceptance by the other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts.

Article 102 prohibits undertakings from committing abuse of dominance position held within a substantial part of the internal market where that abuse has an effect on trade between member States. Sub paragraphs (a)-(d) set out examples of abuse of dominance.

The provision does not set out a procedure for declaring an undertaking to be dominant.

From Article 102, five elements can be established-

 One or more undertaking  A dominant position  The dominant position must be held within the internal market or substantial part of it.  An abuse  An effect on inter-State trade

Sometimes it become difficult to determine whether an enterprise is abusing ts dominant position.20

20 Alison Jones and Brenda Surfin, EU Competition Law, p 260 ( 4th Ed Oxford 2011)

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The application of EU competition law on abuse of dominance involves the finding of a dominance position and of an abusive behaviour of the dominant firm, usually associated with excessive pricing or with exclusionary practices as predatory pricing, rebates, tying or bundling, exclusive dealing or refusal to supply. However, the analysis of both dominance and abusive behaviours entail complex economic considerations and has been subject to a recent revision.

Article 102 is designed to deal with monopoly and market power. It focuses not on agreements between undertakings (as Article 101 does) but on the unilateral behavior of undertakings which hold a ―dominant position‖.

In United Brands v Commission21, the ECJ said that an undertaking would hold a dominant position where it could prevent effective competition being maintained by virtue of its ability to behave independently of the usual competitive constraints facing an entity operating on a market.

Hoffmann-La Roche & Co AG v Commission22 , the ECJ emphasized that a position of dominance did not preclude some competition and particularly focused on the ability of the undertaking to influence the conditions of competition occurring on the market.

Article 102 gives examples of conduct that is abusive, but it does not contain an exhaustive list of what amounts to abusive behavior.

It is clear that t is not an offence in itself for a firm to have a dominant position, what is offensive is to abuse the position of dominance.23 In Michelin v Commission24, it was held that a firm in a dominant position has a special responsibility not to allow its conduct to impair undistorted competition on the internal market.

21 United Brands v Commission, [1978]ECR 207 22 Hoffmann-La Roche & Co AG v Commission [1979] ECR 461 23 Richard Whish & David Balley, Competition Law, p 196 (6th Ed Oxford 2008) 24 Michelin v Commission. [1985]1 CMLR 282

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Where the Commission finds an abuse of a dominant position it has power, pursuant to Article 23 of Regulation 1/2003, to impose fine and to order the dominant undertaking to cease and desist from the conduct in question.

6. Similarities among India and USA and EU

There are certain similarities between India, EU and USA regarding the abuse of dominant position. These are highlighted.

i) The enterprise should posses a dominant position in the relevant market. ii) There should be abuse of dominant position to impede the competition

In all the three legal regime dominance is not a matter of concern, but abuse of dominance is restricted. All the parameters to determine dominant behavior are used in all the three countries.

7. Differences among India, USA and EU

India and EU have provisions which explicitly deal with dominance and abuse of dominance. In USA, the Section 2 of the Sherman Act only talks about monopolization, but does not have the phrase ―abuse of dominance‖. On the other hand India and EU do not concern about monopolization.

8. Conclusion

Dominance per se is not bad or harmful for the market and the economy. A firm can acquire dominant position in the market without even adversely affecting the competition. It is the abuse of dominance which causes adverse effect to the competition and is treated as unlawful under the Competition Act 2002. Section 2725 empowers the Competition Commission of India to order discontinuance of abuse of dominance and punishment and impose penalty on

25 Section 27 of the Competition Act 2002

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firms who abuse its dominant position. Sherman Act of USA is an old Law, which needs to be amended now to incorporate the exact term ―abuse of dominance‖.

BIBLIOGRAPHY

Statutes Referred

 Competition Act 2012  Clayton Act 1914  EC Treaty  MRTP Act 1969  Sherman‘s Act 1890

Books Referred

 D. P. Mittal, Competition Law & Practice, Taxman, , (3rd Ed)  Maheer M. Dabbah, International and Comparative Competition Law, p 243 (1st Ed Cambridge, 2010)  Richard Whish & David Balley, Competition Law, p 196 (6th Ed Oxford 2008)  T. Ramappa, Competition Law in Indiai -Policy Issues and Developments, (2nd Ed. 2011)

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NEO- ADOPTION POLICY FOR MUSLIMS IN INDIA: A PIECEMEAL CHANGE IN THE DIRECTION OF UNIFORM CIVIL CODE

Neha Trehan1

Introduction

It is not incorrect to say that the uniform civil code cannot and should not be enacted at one go. The directive principles are the positive obligations of the State, yet no government prepared any blueprint of a uniform civil code. It is dismaying to note that while the directive principle of a uniform civil code is emphasized, no one speaks of the non-implementation of the said directives.2 The legislature is better equipped to comprehend the mental preparedness of the entire citizenry to think unitedly on the issue of uniform civil code, has expressed its view by the enactment of the Juvenile Justice Act, 2000.3 In the landmark judgment, the Supreme Court has given Muslims the right to adopt a child despite their personal law prohibiting it. The apex court said that the law of land has to get primacy over personal law till the country achieves Uniform Civil Code as provided in Article 44 of the Constitution. The Supreme Court bench said the right to adoption is conferred by a law and operation of this cannot be stultified by a personal law dictate.

Panoramic View of the Personal Laws

According to the Muslim Personal Law (Shariat) Application Act, 1937, Muslim Personal Law applies to all Muslims in India 4 The Muslim Personal Law does not provide for adoption. No doubt Islamic Law does provide for ‗Kafala‘ system under which the child is placed under a ‗Kafil‘ who provides

1 B.A LL.B (Hons.), LL.M (University of Delhi) 2 Faizan Mustafa, ―The importance of piecemeal reforms: A uniform civil code cannot and should not be enacted at one go‖ The Hindu (02/07/2014) available at http://www.thehindu.com/opinion/op-ed/the-importance-of-piecemeal- reforms/article6167344.ece, last seen on 03/07/2014 3 Shabnam Hashmi v Union of India, AIR 2014 SC 1281 4 Muslim Personal Law (Shariat) Application Act, 1937, s.2

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for the well-being of the child including financial support and thus is legally allowed to take care of the child though the child remains the true descendant of his biological parents and not that of the ‗adoptive‘ parents.5 The All India Muslim Personal law Board believes that ―Kafala‖ system which is recognized by the United Nation‘s Convention of the Rights of the Child under Article 20(3) is one of the alternate system of child care contemplated by the Juvenile Justice Act, 2000.6 The Muslim Personal Law (Shariat) Application Act, 1937, which determines the scope of Muslim Law in India provides two different lists of subjects, one mentioning those subjects, in regard to which all Muslims of India will be compulsorily governed by the Law of Islam, any contrary custom notwithstanding,7 and the other list referring to those subjects in regard to which a Muslim can individually opt for the law of Islam by means of a declaration, the declaration made once being binding on the maker‘s minor children and their subsequent descendents.8 In respect of matters other than marriage the expression ―where the parties are Muslims‖ in the Act of 1937 can never be taken as meaning that only those cases will be governed by Muslim Law both parties to which are Muslims. The true legal position must be that under the Muslim Personal Law (Shariat) Application Act, 1937, Muslim Law will apply where the concerned transaction has taken place or the right claimed has accrued under Muslim Law. This will be quite possible if it is accepted that the expression ―in cases where the parties are Muslims‖ is not the same as ―in a case to which both parties are Muslims‖.9 Muslim Law on the subjects mentioned in Section 2 of the Act is to be compulsorily applied to Muslims in all those cases in which Act is otherwise applicable. The Courts do not have an option in respect of these subjects not to apply Muslim Law. The

5 Asha Bajpai, Adoption Law & Justice to the Child, Centre for Child and the Law, 137 National Law School of India University , Bangalore, India (1996) 6 Supra 2 at para 10 7 Muslim Personal Law (Shariat) Application Act, 1937, s. 2 8 Ibid., s.3 9 Tahir Mahmood, Statute Law relating to Muslims in India, 83-89 Institute of Objective Studies, New Delhi-25 (1st ed., 1995); A.M Bhattacharjee, Muslim Law and the Constitution, 6-35,Eastern Law House, New Delhi, (2nd ed., 1994)

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mandatory nature of the provision has been noted by Supreme Court.10 The opening words of Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 states- ―Notwithstanding any custom or usage to the contrary‖ – make it clear that it is the custom and usage contrary to the provisions of Muslim Law which Act supersedes in favor of Muslim Law. So if in any case there is a conflict between Muslim Law and the usage of parties, the former shall prevail. The effect of Act was noted in Privy Council decision.11 However in the matter of adoption Muslim Personal Law (Shariat) Application Act, 1937 itself makes an exception by providing leverage to customary practices regarding adoption. Section 3 of the MPL (Shariat) Application Act, 1939 (Annexure VII) gives the option to Muslims who were following the customary Hindu Law to choose to be governed by the Shariat in matters relating to Adoption, Will and Legacies and this provision is still in force.12 While the first list which mandates compulsory application of Muslim Law is quite long, the other list which is optional includes only three subjects and adoption is one of them. 13 Adoption is not recognized as a mode of establishing paternity in Islam.14 In a case J. Mahmood remarked, ―There is nothing in the Mahomedan Law similar to adoption as recognized in the Roman and Hindu system‖.15 Acknowledgement of paternity is the nearest approach in Muslim Law to adoption but the two processes of filiation are quite different.16 The material difference between the two can be stated such that in adoption, the adoptee is the known son of another person, while one of the essentials of acknowledgement is that the acknowledgee must not be known son of another. Therefore adoption is not recognized by the general

10 AIR 1961 SC 808 11 AIR 1947 PC 97 12 SA Koder, Muslim Law of Marriage and Succession: A critique with a plea of optional Civil Code‟,111-112 Eastern Law House, New Delhi (1998) 13 Supra 7 14 Quran XXXIII 4-5 15 Muhammad Allahbad Khan v. Mohomed Ismail, AIR 10 All. 289 16 K P Saksena, Muslim law as administered in India and Pakistan, 315-316, Eastern Book Company Publishers, Lucknow (4th ed., 1963)

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Muslim Law and if made in fact by a Muslim, it carries with it no Right of inheritance and incidents relating to Law of adoption as laid down in Mitakshara do not apply to Muslim families nor does it take away the status which person adopted posses in his family of birth. As a matter of fact, in Hindu Law the adoptee is deemed to be continuation of his adoptive father‘s line, the fiction of adoption operating as a civil death in the natural family and a new birth in the adoptive family.17 Broadly put, adoption under Hindu law is the admission of a stranger by birth to the privileges of a child by a legally recognized form of affiliation and in contemplation of Hindu law, an adopted child is deemed to be begotten by the father who adopts him or for and on behalf of whom he is adopted.18 One of the object for adoption is to secure an heir for and on behalf of whom he is adopted. Adoption is to secure an heir to perpetuate adopter‘s name.19 Whatever be its‘ history and background, the legal position is that (unless a Muslim has expressly opted for the Islamic Law of adoption or unless it was adopted during his minority by his father or by a higher ancestor while the latter was a minor), he will not necessarily be governed by the Islamic Law of adoption. Then by what law will a Muslim be governed should he wish to adopt a child, if not by the Islamic Law of adoption? It is generally believed by the Muslims that their law prohibits adoption altogether.20 There is so far no statute in India which may be availed of by one in order to adopt. Such a Muslim can only seek the help of a custom permitting adoption, provided he can prove the existence of such a custom in his family satisfying all judicial requirements for that purpose.21 There are few Muslim families in India who have a legally recognizable custom of adoption.

17 Mulla, Principles of Hindu Law , 671-672, Vol. I, Butterworths India, (17th ed., 1998) 18 Acharya Shuklendra, Hindu Law, 504 Modern Law Publications Allahabad (2002) 19 Inder Singh v. Kartar Singh, AIR 1966 Punj. 258: ILR (1966) 1 Punj. 680 20 Reference may be made to T. Mahmood Statute Law relating to Muslims in India: A study in Constitutional & Islamic Perspective, 81-96 Institute of Objective Studies, New Delhi-25 (1st ed., 1995); D. Latifi, ―Adoption and the Muslim Law‖, 16 JILI, 118-122 (1974); M. Hidayatullah and Arshad Hidayatullah, Mulla‟s Principles of Mahomedan Law, N.M Tripathi Private Ltd., Bombay, (19th ed., 1990) 21 See Abdul Hussein v. Sona Dero, (1917) 45 I.A.10

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Among them are some families in the Kashmir valley who have a custom of ‗adopting‘ sons (called pisar-e-parvarda).22 However in a situation where there is an absence of a legally recognizable custom of adoption, how can one make an adoption is a question of far reaching consequences. The courts in such a case apply Muslim Law on the basis of justice, equity and good conscience. Nevertheless the application of the personal laws must be within the precincts of the laws of the land. The vacuum in the Muslim personal law can be said to be filled by the application of the Juvenile Justice Act, 2000 on the Muslims mutatis mutandis. Adoption is the transplantation of a child from the family in which one is born into another family by gift made by his natural parents to his adopting parents. Islam does not recognize adoption. In Mohammed Allahabad Khan v. Mohammad Ismail, 23 it was held that there is nothing in the Mohammedan Law similar to adoption in the Hindu system.

Secular Adoption under the Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006: Shabnam Hashmi v. Union of India, (2014)

The latest Supreme Court ruling in Shabnam Hashmi v. Union of India24 has held that a Muslim may also adopt a child. The Juvenile Justice (Care and Protection of Children) Act, 2000 as amended in 2006 (hereinafter for short ‗the JJ Act, 2000) therein after the meaning of ‗adoption‘ came to be expressed.25 The responsibility of giving in adoption was cast upon the Court, Central Adoption Resource Agency, as an institution received statutory recognition and so did the guidelines framed by it are notified by the Central Government. The Central Government considers that prospective parents, irrespective of their religious background are free to access the provisions of

22 S.N Jain, Child and The Law, 150 N.M Tripathi Pvt. Ltd., Bombay (1979) 23 Supra 14 24 AIR 2014 SC 1281 25― Section 2(aa) –―adoption‖ means the process through which the adopted child is permanently sepearated from his biological parents and becomes the legitimate child of his adoptive parents with all the rights, privileges and responsibilities that are attached to the relationship‖

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the Act for adoption of children after following the procedure prescribed.26 The 3-judge bench upheld that the JJ Act, 2000 as amended is an enabling legislation that gives a prospective parent the option of adopting an eligible child by following the procedure prescribed by the Act, Rules and the CARA guidelines.27 The Act does not mandate any compulsive action by any prospective parent leaving such person with the liberty of accessing the provisions of the Act, if he so desires. Such person is always free to adopt or choose not to do so and instead follow what he comprehends to be dictates of the personal law applicable to him. The Court opinioned the Act as a small step in reaching the goal enshrined in Article 44 of the Constitution of India. Personal faith and beliefs cannot lend interpretative basis for an enabling statute. An optional legislation that does not contain compulsive dictation cannot be stifled by the personal laws.28

The question that curiously arises in one is that whether this judgment which allows adoption by Muslims necessitate changes in Muslim Personal Law (Shariat) Application Act, 1939. While the Act of 1939 only allows exception to the application of Muslim Personal Law in cases of adoption if a contrary customs exists in its respect and such person has not given a declaration under Section 3 of the Act. However if the judgment is read along with MPL (Shariat) Application Act, 1939 it does not reconcile in terms and therefore the only interpretation that arises is that since Act of 1939 has allowed an exception for the application of MPL in adoption matters where a custom exists for it, the SC has by this ruling inserted one more exception in such list that is, when adoption is practiced under the law of the Land. This triggers another question as to whether there is any conflict between personal Law and Secular law- Whether there is a conflict between Muslim Personal Law (Shariat) Application Act, 1939 and The Juvenile Justice (Care and Protection

26 Supra 23 at para 8 27 Refer Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244: AIR 1984 SC 469 28 Supra 25 at para 11

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of Children) Act, 2000 as amended in 2006. Yes an apparent conflict may be made out. While the former law allows application of Muslim Personal Law and as per its Personal Law, adoption is not allowed; the latter on the other hand allows adoption. But a deep insight into the Muslim Personal Law (Shariat) Application Act, 1939 reveals that adoption is enlisted in the list of subjects which the Act does not mandate for the application of personal laws and allows application of customary practice for the same. The Supreme Court by its ruling expounded the scope of adoption other than customs and usages. Therefore, the ruling of the Court cannot be construed as against the provisions of the Act of 1939. The ruling of the Court is quiet clear and unequivocal and is worded strictly in terms of the Juvenile Justice Act. It must be construed constricted in the sense of a particular Act having no bearing upon related statutes. Like formerly a convert to Islam from Hinduism could give in adoption his son who was still a Hindu or authorize his being given in adoption.29 Since the enactment of Hindu Adoption and Maintenance Act, 1956 a Hindu convert to Islam is not entitled to give his son who is still a Hindu in adoption or to authorize his being given in adoption. In such cases, the Right passes on to Hindu wife.30 In this context the question arises as to whether the 2014 ruling have an effect on the aforesaid provision. Since Muslims are allowed to adopt does it mean under Section 9 of Hindu Adoption and Maintenance Act, conversion will not affect power of giving in adoption. The case must be read in a particular setting wherein the matter is under consideration vis-à-vis the JJ Act, 2000. That is, if a Muslim adopts under the said Act, rigors of personal Laws will not impede the adoption. However this interpretation cannot be stretched too far to be taken as a ruling in favor of Right to adoption by a Muslim in every situation. Firstly, the scope of this Right is limited to only the JJ Act, 2000 as amended in 2006. The court clearly

29 Shamsing O. v. Santabai, (1901) 25 Bom. 531-535 30 S. 9 of HAMA. See Tyabji Faiz Badruddin , Muslim Law: The Personal Law of Muslims in India and Pakistan,210 NM Tripathi Pvt Ltd., Bombay (4th ed., 1968)

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denied to declare the right to or to be adopted as a fundamental right,31 though a positive declaration is made in a restricted sense which may in itself be taken as an advance towards Uniform Civil Code. Time is not ripe to declare this right universally though in future this possibility cannot be ruled out completely. The necessity of having one single code to be named as the Indian Civil Code applicable to everybody living within the territory of the Indian Union irrespective of caste, creed or religious persuasions appears to be absolutely essential to the interest of unification of country for building up one single nation with one single set of laws in the country.32 The question is not whether a uniform civil code is or is not necessary; the question is only to find out the ways and means, the method and manner of implementing this directive principle enunciated in Article 44 of the Constitution. It may also be pointed out that under Article 246 of the Constitution, the legislative powers of the Parliament and the legislatures of the States extend to the subjects enumerated in the concurrent list33. It is generally believed that social legislation is an encroachment upon the individual‘s right, upon the individual‘s personality but we have passed the stage where we accepted the position that the State should not interfere with the individual.34 Also it is fallacious belief that the Indian Civil Code will be a replica of ancient Hindu juristic doctrines, since a large number of those doctrines have been abandoned under modern Hindu Law itself.35 The Supreme Court has repeatedly pointed out the need for framing of a uniform civil code in

31 Also refer to In re Manuel Theodore D‟souza, (2000) 3 Bom CR 244 and Philips Alfred Malvin v. Y.J Gonsalvis & Ors, AIR (1999) Kerala 187 32 Chaudri Hyder Hussain, A Unified Code for India, 68 AIR 1949 33 List No. III, Entry No. 5 . See also SA Kader, Muslim Law of Marriage and Succession in India: A critique with a plea for optional Civil Code, 99 Eastern law House, New Delhi (1998) 34 C.J Mohamed Cassim Chagla spoke this in a symposium on the Muslim Personal Law organized by the International Congress of Orientalists in 1964 35 Dr. Tahir Mahmood, ―Islam and a Common Civil Code‖, published in The Hindustan Times, New Delhi, dated 22.6.1972

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accordance with the mandatory provision of the Constitution.36 The court lamented that Article 44 of our Constitution has remained a dead letter. It is primarily the State which is charged with the duty of securing a uniform civil code for the citizens of the country and unquestionably has the legislative competence to do so.37

International Regime in favor of Secular Adoption Laws

There is a growing interest in the contemporary international community in providing for uniform laws relating to the creation and effects of adoption. International conventions and treaties contribute enormously to the international regime on adoption and set international human rights norms and standards for adoption. Central to the adoption laws lie the interest of children which has gained enormous priority on the international agenda. There are some universally accepted basic rights which are essential to any child‘s harmonious and full development even if there is diversity in nation‘s socio- economic, religious and cultural perceptions. In 1959, the United Nations gave official recognition to the human rights of children by adopting the Declaration of the Rights of the Child, 1959, a ten principle document. The document set out certain principles relating to the rights of a child to a name and nationality and to be protected from practices which may foster religious discriminations.38 Besides there are several general declaration, covenants and conventions which states rights of children.39 The Declaration on Social and Legal Principles relating to the protection and welfare of children with special reference to foster placement and adoption nationally and internationally,

36 Mohamed Ahamed Khan v. Shah Bano, AIR 1985 SC 945; Jordan Diengdeh v. SS Chopra, AIR 1985 SC 935; Sarla Mudgal v. Union of India, AIR 1995 SC 1531 37 A.M Bhattacharjee, Muslim Law and the Constitution, 176-190 Eastern Law House, New Delhi (2nd ed., 1994) 38 Principle 1, 3 & 10 of the United Nations Declaration of the Rights of the Child, 1959 39 Universal Declaration of Human Rights 1948 adopted by United Nations.; International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social and Cultural Rights, 1966; Convention on Elimination on All Forms of Racial Discrimination, 1965 and the Convention on the Elimination of all frms of Discrimination against women, 1979.

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198640 also recognized that the primary aim of adoption is to provide the child who cannot be cared for by his or her own parents with a permanent family.41 Subsequently, an idea emerged about drafting a treaty between the governments on the rights of the child which would be more binding.42 It was also realized that the interest of the children were not necessarily identical with those of the guardians. One of the major area emerged was with regard to the Right to foster care and adoption. This was particularly objected to by the Islamic delegations which found it incoherent with the Muslim personal Law. However the final text of the article guaranteeing the right to adoption and foster care were introduced with much difficulty. The Convention recognized the right of a child to have an identity43 and to grow up in a family environment. It also states that the parties to the Convention that permit the system of adoption must ensure that the best interests of the child shall be the paramount consideration. The Convention also provides that there should be no discrimination of any kind irrespective of the child‘s or his/her parents or legal guardian‘s race, color, sex, religion or birth.44 These rights of child if taken together shows only one thing that interest of child is a paramount consideration even if matter is related to the issue of inter-religious adoption. India ratified the Convention in 1992 has an obligation to ensure that the rights enshrined under the convention are protected in the country.45 Therefore, now

40 See Annexure VIII 41 Article 13, Declaration on Social and Legal Principles relating to the protection and welfare of children with special reference to foster placement and adoption nationally and internationally, 1986 42 It was in commemoration of the twentieth anniversary of the Declaration of the Rights of the Child, 1959, that 1979 was designated as the International Year of Child (IYC). As part of this celebration, it was proposed that an international treaty be drafted. The working group established by the Commission in 1979 completed its first draft of the Convention in February of 1988. 43 Article 8, UN Convention on the rights of the Child, 1989 44 Article 2, UN Convention on the rights of the Child, 1989 45 Ibid. Art. 4

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the State is under a solemn obligation to make laws for adoption of all children without any discrimination.46

Conclusion

In the above light, the Shabnam Hashmi case has set a precedent as well as a path for secular adoptions in India. The case provides a terra firma in the field of adoption laws in India especially with regard to the Muslims. However it must always be noted that as and when the adoption Law is discussed and deliberated upon, the welfare of the child must contour the debate.

The article implies that the desirability of the uniform civil code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change. A unified code is imperative for protection of the oppressed and promotion of national unity and solidarity. But the first step should be to rationalize the personal law of the minorities to develop religious and cultural amity.47 The Supreme Court ruling in 2014 seems to be a step in the direction of rationalizing and making the personal laws comprehensible. In a country where elected representatives of the people are usually reluctant to take legislative measures to concretize Constitutional commands, the judicial activism of the Court appears to be the only remedy to enforce the mandates, especially when the legislature also concords.

References:

Books

 Acharya Shuklendra, Hindu Law, Modern Law Publications, Allahabad, 2002 p.504  A.M Bhattacharjee, Muslim Law and the Constitution, Eastern Law House, New Delhi, 2nd Edn. 1994 pp. 6-35  Asha Bajpai, Adoption Law & Justice to the Child, Centre for Child and the Law, National Law School of India University , Bangalore, India 1996 p. 137

46 Supra 4 at 139 47 As observed by Justice R.M Sahay in Sarla Mudgal v. Union of India, AIR 1995 SC 1531

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 K P Saksena, Muslim law as administered in India and Pakistan, Eastern Book Company Publishers, Lucknow 4th Edn. 1963 pp.315-316  M. Hidayatullah and Arshad Hidayatullah, Mulla‟s Principles of Mahomedan Law, N.M Tripathi Private Ltd., Bombay, 19th Edn. 1990  Mulla, Principles of Hindu Law , Vol. I, Butterworths India, 17th Edn, 1998 pp. 671- 672  SA Koder, Muslim Law of Marriage and Succession: A critique with a plea of optional Civil Code‟ Eastern Law House, New Delhi , 1998 pp.99 ,111-112  S.N Jain, Child and The Law, N.M Tripathi Pvt. Ltd., Bombay 1979 p. 150  Tahir Mahmood, Statute Law relating to Muslims in India, Institute of Objective Studies, New Delhi-25 1st Edn. 1995 pp.83-89  T. Mahmood Statute Law relating to Muslims in India: A study in Constitutional & Islamic Perspective, Institute of Objective Studies, New Delhi-25 1st Edn. 1995 pp.81-96  Tyabji Faiz Badruddin , Muslim Law: The Personal Law of Muslims in India and Pakistan, NM Tripathi Pvt Ltd., Bombay 4th Edn. 1968 p.210 Articles  Chaudri Hyder Hussain, ―A Unified Code for India”, AIR 1949 Journal Section, p. 68  D. Latifi, ―Adoption and the Muslim Law‖, 16 JILI, 118-122 (1974)  Faizan Mustafa, ―The importance of piecemeal reforms: A uniform civil code cannot and should not be enacted at one go‖ published in The Hindu, Delhi dated 02-07- 2014 p. 11  Tahir Mahmood, ―Islam and a Common Civil Code‖, published in The Hindustan Times, New Delhi, dated 22.6.1972 Acts & Conventions  Convention on Elimination on All Forms of Racial Discrimination, 1965  Convention on the Elimination of all forms of Discrimination against women, 1979.  Juvenile Justice (Care and Protection of Children) Act, 2000 (as amended in 2006)  International Covenant on Civil and Political Rights, 1966  International Covenant on Economic, Social and Cultural Rights, 1966  Muslim Personal Law (Shariat) Application Act, 1939  UN Convention on the rights of the Child, 1989  Universal Declaration of Human Rights 1948

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LETTER OF CREDIT: THE LAW AND THE LETTER

Rahul Meena*

INTRODUCTION

As per the technical aspect and the analogy ―letters of credit1‖ are not contracts2, there is the perception that the obligation is unique in its characteristics and no principles of contract law apply to letters of credit. Some attempts have been made to support a contractual link between the issuing bank and the parties involved in the letter of credit transaction.3 However, no systems of law have succeeded in defining a contractual scheme for letters of credit. As per some treatises, the existence of a contract between the seller and the bank is unquestionable because in respect to litigation cases of letters of credit a bank has never denied that there is a contract between the bank and the seller.4As per a very famous case in terms of letter of credit, it has been up held that a court could find a collateral contract between the seller and the bank for the seller‘s act (shipping the goods to the buyer in reliance on the bank‘s promise).5 Letters of credit are widely used payment mechanism, particularly in international sales. As per the general approach, it is mere a security holding document. A seller will require payment by letter of credit because it believes to be a secure payment device, and it basically protect the risk of non-

*Student, Semester VII, National Law University, Jodhpur 1 A letter of credit is ―a definite undertaking by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value.‖ U.C.C. § 5-102(10) (1995). 2 John F. Dolan, The law of letters of credit: commercial and standby credits, (Austin, TX: A.S. Pratt & Sons, 2007). 3 Legal Nature of the Letter of credit, Lazar Sarna, Letters of Credit: The Law and Current Practice, 3 ed. (Toronto: Thompson Canada Limited, 2005). 4 Cheshire & Fitfoot, Law of Contract. 9th ed. (London. 1976) at 68. 5 S.M. Waddams, The law of contracts, 4th Ed. (Aurora, Ont.: Canada Law Book, 1999) at 203.

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payment, particularly in the event of the buyer‘s insolvency, or a drop in market price. Although they actually work most of the time as an effective payment mechanism, in the majority of cases, the bank is not required to make payment. Because as per the legal entity, payment under a letter of credit depends upon presentation by the seller-beneficiary of documents that comply strictly with the documents required by the letter of credit, the slightest discrepancy in the documents relieves the bank obligation to pay.6Most presentations are discrepant.7Yet, most buyers waive the discrepancies in the documents, thereby permitting the seller to be paid by the bank under the letter of credit. The main objective of this paper is to show the reality of how the whole system works. It next focuses on the legal nature of letter of credit and the loops regarding the basic structure and the governing laws of it, which give rise to the fraud. As per the general structure of any contract, the boundaries are fixed by the parties as per their terms and conditions. So the same analogy is there in a transaction involving a letter of credit, the parties generally choose to include rules related to ―letters of credit‖ that are not laws by themselves, but they become laws to the parties once referenced in their contracts.8 This decision of the parties does not exclude totally the laws of the jurisdiction of the contract; in as much as there are no problems of interpretation or disputes between parties, the contract will operate to the satisfaction of the parties and no intervention of the court or other laws will be required.9 The problem emerges once the intervention of the judiciary is required i.e how should a court confronting a new case related with ―letters of credit‖ evaluate rights and obligations of the parties involved in a letter of credit transaction? The answer

6 UCC Article 5, section 108; Alaska Textile, Inc. V. Chase Manhattan Bank, 982 F.2d 813 (2nd Cir. 1982). 7 Ronald J. Mann, The Role of Letters of Credit in Payment Transactions, 98 Mich. L. Rev. 2494 (Aug. 2000). 8 A. Mugasha, The law of letters of credit and bank guarantees, (Annandale, N.S.W. : Federation Press, 2003). 9 Id.

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rests on the concept of ―practical convenience‖ and the logical approach of the parties and the legal authorities.

Most jurisdictions have chosen to enforce letters on the grounds of commercial usage. Practical convenience was used when the judiciary decided the consequences of treating a ―letter of credit‖ as an absolute or conditional payment.10 Now as per the approach of various courts across the globe one thing is quite clear that Letters of credit are enforceable despite the fact that no completely satisfactory rationale has been found in the established categories of contract theory.11

HOW DO THEY WORK

Letters of credit are generally considered the most secure payment mechanism in sales transactions, other than cash in advance.12 They basically stand for the secure transaction between the buyer and the seller. In international sales particularly, where less information may be available to a seller about a buyer‘s business reputation and financial standing, frequently seller will require buyer to pay by letter of credit, issued by buyer‘s risk, in order to reduce the risk of non-payment.13 As we look towards the data records of letters of credit, it is quite clear that they are used by most of the commercial companies and now it had taken a picture of commercial system which is a basic requirement of any commercial transaction in concern with the trade and commercial market. The basic approach is that the credit of the issuing bank is substituted for the credit of buyer, thereby assuring payment, because the solvency of the issuing bank is generally more certain than the solvency of a

10 W,J. Alan & Co. Ltd. v. EI Nasr Export and Import Co. [1972] 2 All ER 127. 11 Bank of Nova Scotia v Angelica‐Whitewear (1987) 36 DLR (4th) 161 (SCC) at 36. 12 Core States Bank, International Trade Procedures, An introduction to Doing Business Abroad, 1994. 13 Supra note 7.

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foreign, relatively unknown buyer.14 Basically, it gives an upper hand to seller in case of any default on the behalf of buyer‘s term and essence of the contract. Seller will have an absolute right to payment from the bank under the letter of credit, if, after shipping goods to buyer, he presents to the bank the documents required by the letter of credit.15 This payment obligation running from the issuing bank to the seller cannot be changed or interfered with by buyer once the letter of credit has been issued no matter if the buyer changes his mind because the market price drops, or he becomes insolvent, or for some other reason he does not want to proceed with the transaction, the issuer will nonetheless have to pay seller upon receiving complying documents, The bank‘s obligation to pay upon receipt of complying documents. The bank‘s obligation to pay upon receipt of complying documents is independent both of the underlying obligations between buyer and seller on the sales contract, and of the obligation by buyer to reimburse the bank for any payment it makes under the letter of credit.16 Thus, once seller presents complying documents to the issuing bank, he is assured of payment. As we go through the technicalities of letter of credit, it seems to have a different picture in reality. In practice, the letter of credit is not a very secure payment mechanism. Since documents presented by seller must ―strictly comply‖ with the documents listed in the letter of credit, if there is a single discrepancy between documents presented and documents required, seller‘s entitlement to payment is extinguished.17 Going by the basic interpretation of the letter of credit, the validity stand on the proportionality of discrepancy as per the essence of the contractual relationship between the parties. Bank has limited hold over the letter of credit, bank only deal with documents, not with goods, and have no obligation to investigate or determine if underlying

14 Id. 15 Id. 16 UCC §5-103(d). 17 Beyene v. Irong Trust Co., 762 F.2d 4 (2nd Cir 1998).

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transaction has actually occurred,18 Instead, the bank‘s obligation is limited to determining whether the required documents, in proper form, have been presented. Courts have found that minor discrepancies, such as the misspelling of a name, or a slightly different description of the goods in the commercial invoice from the description required by the letter of credit, relieve the bank if its obligation to pay seller.19 In the imperfect world of international commerce, one would expect some documentary presentations to be discrepant. The ambit of such discrepancies is the main problem as nowhere in the world, any court had set any judgement regarding the ambit of such discrepancies.20 The magnitude of the problem is surprising. Various studies show that the percentage of initial documentary presentations to be as high as 90 percent. These statistics thus suggest that an issuing bank will only be obligated to pay the seller under a letter of credit in a small percentage of cases. What is also surprising, however, is that even though seller frequently loses the right to be paid under a letter of credit because it presented non-complying documents, seller‘s risk of actual non-payment under a letter of credit is generally quite small. The main thing here on which light should be thrown is that the whole letter of credit systems depends on the non-payment by the seller while the discrepancies are the one which leads to the issue and the main loop in the law and the letter is that there are no boundaries regarding the ambit of discrepancies. While little actual data is available, estimates of the percent of letter of credit that fails completely are only about 1 percent or fewer of letter of credit for which presentations of documents are made.21 The reason letters of credit generally do not fail often as a payment mechanism is that one of two things generally happens: either seller corrects the discrepancies prior to the expiry date of the letter of credit, or, more usually, buyer agrees to waive the discrepancies.

18 Ibid. 19 Kerry L. Macintosh, Letters of Credit: Curbing Bad Faith Dishonor, 25 UCC Law Joural 3 (1992). 20 Id. 21 Supra note 7.

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GOVERNING LAWS OF LETTER OF CREDIT

In the earlier time, people use to set rules as per their specification as the commercial transaction use to take in a way of barter system but as the time changed new system came into picture. So to minimise the ambiguity regarding such commercial systems various set of laws were adopted to facilitate the efficiency of letter of credit in international trade and commercialisation. Letters of credit have been facilitating commercial transactions22 since at least the 1100s,23 and quite possibly for hundreds, if not thousands, of years more. Today, at any given time, hundreds of billions of dollar‘s worth of commercial and standby letters of credit are outstanding.24 In the words of a recent opinion by the New York Court of Appeals, ―The importance of letters of credit in international trade and financing cannot be overstated.‖25 In a typical commercial transaction, a buyer and a seller agree that the buyer will purchase goods or services from the seller, for cash or on credit, and that the seller will provide the buyer with those goods or services in exchange for the buyer‘s payment or promise to pay. Each party undertakes an obligation to the other in expectation of a benefit to be conferred by the other. These obligations are mutually dependent, such that one party‘s failure to perform may excuse the other party from performing.26 Now here the letter of credit minimises the scope of breach of the terms of the contractual relationship between the parties as it is one of the condition by which the concern party can invoke the letter of credit. Letter of credit transactions introduce a third party –

22 Letters of credit facilitate commercial transactions ―by providing the credit of a third party, usually a bank, as an independent guarantee of payment to protect the parties. The certainty of payment encourages hesitant parties to enter into transactions, by providing them with a secure source of credit.‖ AmSouth Bank, N.A. v. Martin, 559 2d 1058, 1062 (Ala. 1990). 23 Paul R. Verkuil, Bank Solvency and Guaranty Letters of Credit, 25 STAN. L. REV. 716, 716 n.1 (1979). 24 James E. Byrne, Overview of Letter of Credit Law & Practice in 2000, (James E. Byrne & Christopher S. Byrnes eds. 2001). 25 Nissho Iwai Europe PLC v. Korea First Bank, 782 N.E.2d 55, 58 n.1 (N.Y. 2002). 26 U.C.C. § 2-703(a) & (f) (1989) (empowering the seller, inter alia, to withhold delivery of goods or to cancel the contract if the buyer fails to perform as promised)

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the letter of credit ―issuer‖ – and two additional undertakings – or, as one leading commentator describes them, ―relationships‖27 – to the transaction. The first undertaking in a letter of credit transaction is the underlying contract between the buyer and the seller, which is now conditioned on the buyer arranging for a letter of credit on the seller‘s behalf.28 The second undertaking is between the buyer (the applicant)29 and the letter of credit issuer, in which the issuer agrees to issue the letter of credit in favour of the seller (the beneficiary)30in exchange for the applicant‘s agreement to reimburse the issuer for any amounts the issuer disburses to the beneficiary on the letter of credit. The third undertaking, the letter of credit itself, is the issuer‘s promise to pay the beneficiary when the beneficiary presents certain documents or demands payment.31 This third undertaking is independent of the other two.32 Now these are the basic undertakings which are identical in nature of law across the globe which is one of the main reason of that huge number of letters of credit are used in the international trade ignoring the fact that it has various flaws regarding the law and the letter also (basic structure). As a result, an issuer normally cannot refuse to honour a beneficiary‘s conforming presentation (or, in the case of a ―clean‖ letter of credit, a beneficiary‘s draft or demand for payment) based on some infirmity in the beneficiary‘s performance of its

27 Article 5 defines an ―issuer‖ as ―a bank or other person that issues a letter of credit, not including an individual who makes an engagement for personal, family, or household purposes.‖ U.C.C. § 5-102(a)(9) (1995). 28 Gerald T. McLaughlin, Exploring Boundaries: A Legal and Structural Analysis of the Independence Principle of Letter of Credit Law, 119 BANKING L.J. 501, 507 (2002). 29 Article 5 defines an ―applicant‖ to be someone ―at whose request or for whose account a letter of credit is issued,‖ including someone ―who requests an issuer to issue a letter of credit on behalf of another if the person making the request undertakes an obligation to reimburse the issuer.‖ U.C.C. § 5- 102(a)(2). 30 Article 5 defines ―beneficiary‖ to be ―a person who under the terms of a letter of credit is entitled to have its complying presentation honored,‖ including ―a person to whom drawing rights have been transferred under a transferable letter of credit.‖ U.C.C. § 5-102(a)(3). 31 McCormack v. Citibank, N.A., 100 F.3d 532, 537 (8th Cir. 1996) 32 U.C.C. § 5-103(d).

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contract with the applicant or in the applicant‘s performance of its contract with the issuer.33 The issuer‘s agreement to pay the beneficiary out of the issuer‘s own funds – with or without the intervention of a confirming, negotiating, or paying bank – is the key to the letter of credit. Indeed, the letter of credit‘s ―effectiveness ... as a commercial device depends upon prompt and inevitable honour of the beneficiary‘s conforming presentation.‖34Therefore, to some extent the document presentation plays the main role in letter of credit but as per the governing laws, no statutory as well as obligatory principle has been derived for document presentation which in future can lead to an irrevocable situation in international market. Subject to an enforceable agreement to the contrary, Article 5 of the Uniform Commercial Code governs letters of credit issued in the United States, as well as, in many cases, letters of credit issued outside the United States in favor of a beneficiary who resides in the United States and letters of credit issued outside the United States in which the parties expressly choose to have their agreement governed by Article 5.35 The laws of USA were given more point of interest because as we all know USA is the biggest commercial hub having the biggest economy in the whole world. And they had always tried to amend the laws parallel to the need of the time. Same has been done in case of governing law regarding the letter of credit, the American courts had also tried to set such precedents which can limit the area of flaws regarding the letter of credit. The version of Article 5 currently in effect in every state except Wisconsin explicitly recognizes the ability of letter of credit parties to expressly incorporate the current Uniform Customs and Practice for Documentary Credits (―UCP‖), promulgated by the International Chamber of

33 Generale Bank v. Czarnikow-Rionda Sugar Trading, Inc., 47 F. Supp. 2d 477, 479-80 (S.D.N.Y. 1999) (―This ‗independence principle‘ is most often expressed to distinguish actual letters of credit from the underlying contracts between buyers and sellers. It is just as clear that letters of credit are separate from the contracts between the buyers/applicants and the issuing banks.‖ 34 supra note at 20. 35 U.C.C. § 5-116(a).

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Commerce. If the parties expressly incorporate the UCP into their letter of credit, then the UCP will govern the letter of credit to the extent the UCP and Article 5 conflict, except with respect to those Article 5 protections the parties may not agree to vary.36 Even if the parties do not explicitly incorporate the UCP, courts will look to the UCP for evidence of custom and usage.37 And, where the issue presented is not resolved by applying Article 5 and the UCP (if the latter are incorporated by agreement of the parties), or by reference to the UCP (if they are not incorporated by agreement of the parties), courts will turn to common law.38 As in the conclusive nature, the ICC has tried its very best to bound the letter of credit in such set of laws that can decrease the loops and can set a moral procedure in terms of documentation of letter of credit. They are trying to bring out the main flaws and to set a legal structure of sweet of laws which can govern the letter of credit and can limit the flaws regarding the principles as well as the letter.

CONCLUSION

Although letters of credit do not work the way most people anticipate they will work, they nonetheless function reasonably well most of the time as a payment mechanism for the sales of goods. The main aim is to find out that why without any stand regarding efficiency, letters of credit are used in such a huge amount. Answer is quite simple, as we talk about the commercial market everybody cares about the security of payment and out of various bonds regarding security, letter of credit is the one whose structure is very simple and

36 Richard F. Dole, Jr., The Essence of a Letter of Credit Under Revised U.C.C. Article 5: Permissible and Impermissible Nondocumentary Conditions Affecting Honor, 35 HOUS. L. REV. 1079, 1089-90 (1998). 37 supra note 20. 38 Hyosung Am., Inc. v. Sumagh Textile Co., 25 F. Supp. 2d 376, 385 & n.11 (S.D.N.Y. 1998) (recognizing an applicant‘s common law right to assert a fraud claim against the beneficiary after the letter of credit had been drawn down and the applicant‘s account had been debited, because such an exception did not conflict with the UCP, which the parties had chosen as governing law under former N.Y. U.C.C. § 5-102(4)).

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effective also. They can be manipulated as per the required of the situation. But this is the main reason behind the whole loop theory of letter of credit. Many scholars has provided a partial explanation of why most letters of credit are honoured by banks, even in circumstances where seller‘s discrepant presentation of documents removes the obligation on the banks to do so. Because banks effectively screen out buyers who are not reputable or creditworthy, most buyers who are letter of credit applicants are reliable companies which want to do business, and are not going to object to minor discrepancies in a sellers‘s documents. By waiving discrepancies, they permit it the letter of credit to be honoured. Basically, a buyer who gains possession of the goods, and then learns that there are discrepancies in the documents, can take advantage of the seller simply by delaying any waiver of discrepancies or by trying to negotiate a lower price. So in the conclusive part, the discrepancies should be taken care of with limiting the ambit by setting news laws and by changing the structure of letter of credit. The rule requiring assignability was originally drafted to govern letters of credit that were similar to ―sum due and to become due under contracts of sale, construction contracts, etc. Account parties in some standby letter of credit transactions, however, have a much greater interest in preventing assignment of the proceeds than in such transactions. Despite the fact that section 5-116(2) of UCC nullifies anti-assignability provisions, parties wishing to prevent assignability can effectively do so. The simplicity and the flexibility of the letter of credit would be served by amending Section 5-116 to provide that a letter of credit may effectively provide that it may not be assigned, but is otherwise assignable. Basically as we look at the governing laws of letter of credit across the world, they are identical in nature which gives the boost to the efficiency of the letter of credit. As we all know international trade is increasing every second and any commercial system which makes commercial transaction easier will be in picture to a greater extent and as the law is identical in case of letter of credit,

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which makes it the lifeline of international trade. By virtue of this research paper, the technicality was under question as to clear the picture of loops in the law and the letter.

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CASE COMMENTARY ON SANGEET AND ORS. V/S STATE OF HARYANA

(2013) 2 SCC 452; AIR 2013 SC 447

Tanuj Chandra* Saumya Gupta**

FACTS1:

The instant case is an appeal from the decision given by Punjab & Haryana High Court. The appellants were awarded the death penalty by the Trial Judge, which was confirmed by the High Court.

The broad facts of the case are that the accused, Ram Phal thought that Amardeep‘s family had performed some black magic which led to the death of his son, Ved Pal. In order to take revenge, Ram Phal and the other accused committed the murder of Ranbir (Amardeep‘s father), Bimla (Amardeep‘s mother), Seema (Amardeep‘s wife) and Rahul the three-year-old child of Amardeep.

The Trial Judge had established that the bodies of Ranbir, Bimla and Seema had bullet injuries and other injuries inflicted by a sharp-edged weapon called ‗Kukri‘. Seema‘s body was also burnt from below the waist and Rahul‘s head was blown off by a firearm injury. Amardeep also had a grievous injury but he survived and was the star witness for the prosecution. On these facts the Trial Judge convicted the appellants and others. The court took note of the fact that the entire family of Ranbir (except Amardeep) was wiped out by the accused in a brutal and merciless manner and held that the crime committed by them fell in the category of the ‗rarest of rare‘ cases, inviting the death penalty. The

*4th Year Student, Institute of Law, Nirma University **4th Year Student, Institute of Law, Nirma University 1 AIR 2013 SC 447

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death sentence awarded to the appellants was however, subject to confirmation by the Punjab & Haryana HC. The Punjab & Haryana HC by its Judgment and Order dated 21st July, 2010 in Murder Reference No. 7 of 2009 confirmed the death sentence.

The Additional Sessions Judge, Rohtak by his judgment and order dated 13th November, 2009 in Sessions Case convicted the appellants (six persons) for the offences under Section- 302, 307, 148, 449 read with S. 149. Also, five of the accused were convicted of an offence u/s. 25(1- B) of the Arms Act, 1959.

Except the appellants, all of them were given a sentence of rigorous imprisonment for life and payment of fine. The appellants, however, were sentenced to death.

ISSUES:

1. Whether sentence of death penalty awarded by Trial Court confirmed by HC, was sustainable? 2. Whether aggravating or mitigating circumstances are to be considered while awarding death sentence?

RATIO:

On uncertainty of the punishment to be awarded in capital offences, i.e., life imprisonment or death sentence, awarding a sentence of life imprisonment, is not ‗unquestionably foreclosed‘.

JUDGMENT2:

The Supreme Court allowed the appeal and awarded life imprisonment to the appellants, as contrary to the death sentence awarded by the HC. Since there is no evidence (contrary to the conclusion of the High Court) that Seema‘s body

2 Supra note 1.

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was burnt by Sandeep, from below the waist with a view to destroy evidence of her having been subjected to sexual harassment and rape, and that Narender was a professional killer, it was held that HC judgment did not indicate anything about the material that led the Court to conclude what aroused intense and extreme indignation of community, except nature of crime. It was not clear on what basis it concluded that criminal was a menace to society and that ‗he shall continue to be so and cannot be reformed.‘

This Court did not approve of the approach of ‗aggravating and mitigating circumstances‘, as followed by the Constitution Bench in the case of Bachan Singh v. State of Punjab3. Although, this approach had been adopted in several decisions but, there is little or no uniformity in the application of this approach. It even did not agree of the ‗balance-sheet‘ approach. It held that aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two since, the considerations for both are distinct and unrelated.

The Bench of this Court did not encourage standardization and categorization of crimes, which is even otherwise not possible.

With respect to ‗remission‘, this Court opined that the grant of remissions is statutory. However, it should be enforced only after following the procedural and substantive checks laid in the statute and should not be arbitrarily exercised. It was held, remission can be granted u/s 432 of the Criminal Procedure Code (in short Cr.P.C.) in the case of a definite term of sentence. Also, the power under this Section is available only for granting ‗additional‘ remission, i.e., for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power u/s 432 of the Cr.P.C. can certainly be exercised but not on the basis that life imprisonment

3 (1980) 2 SCC 684

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is an arbitrary or notional figure of twenty years of imprisonment. Moreover, before actually exercising the power of remission u/s. 432 of the Cr.P.C., the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.

JURISPRUDENTIAL ANALYSIS:

The five-judge Constitution Bench decision of SC in Bachan Singh case is the foundation of contemporary death penalty jurisprudence in India. The bench concluded that the sentence of death ought to be given only in the ‗rarest of rare cases‘ and laid down the principle that the courts must impose the death sentence on a convict only if the alternative sentence of life imprisonment is unquestionably foreclosed. It was also held that not only the relevant circumstances of the crime should be factored in, but due consideration must also be given to the circumstances of the criminal. However, the application of these principles, by the courts, to various cases has been very uneven and inconsistent.

In case of Machhi Singh & Ors. v. State of Punjab4, the SC gave divergent views from the decisions of the Bachan Singh case. It enumerated five categories of murder cases as against the standardization and classification ‗rarest of rare‘ cases by court. This categorization was even accepted as the broad guidelines for imposition of the death penalty in the case of Mohammed Ajmal Mohammed Amir Kasab@ Abu Mujahid v. State of Maharashtra5. The decision of Machhi Singh not only enlarged the scope for imposing death penalty which Bachan Singh had restricted, but it was also considered in subsequent capital punishment decisions. But, this instant Sangeet‟s case

4 (1983) 3 SCC 470 5 AIR 2012 SC 3565

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followed the principle of Bachan Singh case. This reveals that the question of death penalty is not free from subjective elements, and errors have been committed in awarding the death sentence by the Courts6.

In the instant case, the Supreme Court‘s ‗death penalty jurisprudence‘ is under extreme objection since; there is a lack of evenness in the sentencing process7. That is to say, when there are two alternative sentences provided in a section, there is no uniformity followed by the courts in awarding a particular sentence. Even the ‗rarest of rare‘ principle has not been followed consistently, since, the SC held in this instant case that, ‗not only does the aggravating and mitigating circumstances approach need a fresh look but the necessity of adopting this approach also needs a fresh look in light of the conclusions in Bachan Singh case.‘ Hence, it can be concluded without any doubt that there is a distinction between ‗judge-centric approach‘ and ‗principle-centric approach‘.

There are various rape and murder cases which fall under the category of ‗rarest of rare cases‘ but, no homogeneity is seen in the judgment delivered by a court. A Trial court after considering the facts and circumstances awards or confirms the death sentence, but, the same is converted to life imprisonment or is made subject to remission/commutation. This has even been challenged by various human right activists. In this case also, the Trial Court and the Punjab and Haryana High Court considered the offence committed by Sangeet and Narendera as brutal, premeditated, cold-blooded, cruel and diabolic, and hence, confirmed the death sentence, but, the SC in appeal considered the two

6 Shabna Haris, ―Executing Death Sentence Who Holds the Key?‖ Law Mantra Journal, http://lawmantra.co.in/executing-death-sentence-who-holds-the-key/, 3rd Feb, 2014. 7 Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767

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mitigating factors favoring the accused and converted the death penalty awarded to the accused into a sentence of life imprisonment8.

Sometimes it so happens that in want of justice, the state has to use its coercive power to compel obedience to laws by the help of administration of sanctions. To carry on this process effectively, several decisions curtailing the ‗human rights‘ are made. At times, the punishment is extended upto giving of death sentence and deprivation of personal liberties of persons suspected or convicted9. All this is challenged by the individuals in the light of protection available in Article 21 of Indian Constitution. Not only this, delay in putting to death is another area which raises extreme apprehension. Taking a human life is not easy. Therefore, due care and adequate caution has to be taken before an individual is deprived of his or her life by the state. If the state delays implementation of death sentence to a great extent, for one reason or the other, the delay must be counted in favor of the prisoner because living under the shadow of death is a lot worse than dying. That has been the position of law so far. Justice Altamas Kabir, said ―If a death penalty is to be awarded and it is there under the system, then the quicker things are done, the better it is for everybody10”. Moreover, the other drawback of the criminal justice system is that it doesn‘t pay heed to the victim and his claim for justice. A victim or his relative (as in this case Amardeep), are the prosecution‘s key witness, if he is alive. He is the party who is most interested in the outcome of the case. So, his rights ought to be the primary concern of the case. Whereas, the whole system revolves around the rights of the accused and totally neglects rights of victim. So, this balance should be corrected if the trial has to be fair to both the parties.

8 V. Venkatesan, Uncertain Principles, Vol. 30, Issue 1, http://www.flonnet.com/fl3001/stories/20130125300110000.htm, or http://www.hindu.com/thehindu/thscrip/print.pl?file=20130125300110000.htm&date=fl3001/ &prd=fline& 9 C. Raj Kumar & K. Chockalingam, Human Rights, Justice and Constitutional Empowerment, Oxford University Press, Edition 2nd, Page 420. 10 Supra Note 6.

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There has been a drastic change with respect to the notion of death penalty. A legislative change can be observed from the case of Jagmohan Singh to Bachan Singh. Earlier, ‗the death sentence was a rule, and life sentence was an exception‘. This situation got reversed when the new code- Cr.P.C, 1973 was passed, where ‗life sentence was made a rule, with death sentence as an exception‘. This demonstrates that, earlier Austin‘s theory of legal positivism, ―Law is the command of sovereign backed by sanction‖ was followed in a strict sense. But, with the passage of time this perception also transformed. While delivering judgments, judges took into consideration the nature of crime, the punishment related with it and moral values. They refrained themselves from giving harsher punishments and believed in the reformation of the criminal. This reveals that there was a shift from following the theory of Legal Positivism to Natural law theory.

In relation to ‗theories of punishment‘, death penalty is based either on preventive theory or deterrent theory or the retributive theory. The preventive theory has never occupied a significant place in the criminal justice system, nor do many sociologist and criminologists support the idea of retribution (retaliation) i.e., ―an eye for an eye or a tooth for a tooth‖. In this case, the important question for consideration is whether or not death penalty has any deterrent effect on would be murderers? The answer to this is affirmative as dying is one of the most common fears of people. Even other individuals are prevented or abstained from committing murder, for fear that they will also be punished in the same manner and once dead, they will have no opportunity to commit additional murders. But as of now, that is to say in the contemporary criminal justice system, the concept of reformation is followed. The objective behind this is that no person is born as a criminal and that the behavior of the criminal can be reformed.

On the other hand, there is another side to death penalty. Sometimes the innocent persons are wrongly convicted or executed. Killing is always wrong,

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whether by individuals or by the State, and that justice is best served through reconciliation11. After all, taking life is serious business. Hence, if State infringes upon the Right to life guaranteed under Article-21, then it is empowered to do so only by following the ‗due process of law‘ as discussed under the case of Maneka Gandhi v. Union of India12.

11 Supra note 6. 12 AIR 1978 SC 597

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A COMPARATIVE ANALYSIS OF MENS REA IN INDIAN CRIMINAL LAW

Akshay Dinesh Shah*

Introduction:

Of the various branches of law, the branch that is so closely related to man‘s day to day activities is the branch of Criminal Law. Criminal law deals with the definition and nature of the crimes, and the various types of punishments.

The maintenance of peace and security in any society is absolutely essential for the human beings to live without the fear of injury to their lives and property. It is the duty of the state to maintain law and order for the peaceful co-existence in the society. The instrument by which this paramount duty of the government is maintained is the penal law of the land. Thus, the primary object of criminal law is the protection of the public by maintaining law and order.1 Thus, irrespective of the ideology of the state, it must have a strong and efficient legal system to maintain law and order and protect public and property.

Crime:

It is very difficult to give an exact definition for a crime. Various authors have made attempts to define crime. According to Glanville William, the definition of crime is one of the thorny intellectual problems of law. Generally speaking, crime is a wrong against the society. It is also referred to as public wrong. But this definition is too ambiguous to distinctly identify criminal behaviour. Each person‘s perspective to a behaviour which is adverse to public welfare will be different. Thus, for the purpose of simplicity, we embrace one specific yet encompassing definition to assist our understanding of a crime. Crime broadly

*Student, National University of Advanced Legal Studies, Kochi 1 P S A Pillai, Criminal Law, ninth edn., Butterworths India, 2000.

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defined requires three distinct components: (1) the commission of an act prohibited by law or the omission of an act required by law, (2) without defence (excuse or justification), and (3) codified as felony or misdemeanour.2

Constituent elements of a crime:

The most fundamental elements of a crime is that there should be a wrongful act, called as actus reus3, combined with a wrongful intention called as mens rea4. This latin maxin that embodies this is ‗actus non facit reum nisi mens sit rea‘. It means that its not just that the act that makes the actor guilty he should also have a blameworthy state of mind. In criminal law, actus reus represents the physical element of a crime, while the mental aspect which accompanies this physical element is the mens rea.

Introduction to the concept of Mens rea:

Mens rea is a Latin term used in the legal terminology to mean some sort of a blameworthy state of mind or ‗mind at fault‘. However serious an external physical act or omission is, it is not punished unless the consequence of such an act or omission is a result of a wrongful intention or mens rea.5

Illustration: Consider the heinous crime of murder. A person ‗X‘ was aiming to shoot a deer but accidently the shot hit another person ‗Y‘ and he died. Now though X‘s action of killing Y is criminally punishable, the fact that he didn‘t intend to commit the crime (the absence of mens rea) excuses him from liability.

2 Carlan, Nored and Downey, An Introduction to Criminal Law, Jones and Barlett Publishers, LCC. 3 This expression has been coined by Prof Kenny in the first edition of his Outlines of Criminal law in 1902. See, P S A Pillai, Criminal Law, tenth edn., LexisNexis Butterworths Wadhwa, Nagpur,2000, p. 35, fn 1. 4 A view has been expressed that along with actus reus and mens rea, there is a third ingredient of crime: absence of a valid defence. Refer Lanham (1976) Crim LR 276. 5 Exception to the rule is the offence of strict liability.

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The reason mens rea been made central to fixing liability is because of the presumption that every person is capable of discriminating between what is right and what is wrong. Thus, once he has made the choice he must take responsibility for the same. The objective of any penal law is to punish an actor with guilty mind and not to put behind bars any innocent person who due misfortunate circumstances committed the act. That is why penal laws are generally replete with words which indicate the mental state of mind. They generally use the words like ‗intentionally‘, ‗voluntarily‘, ‗wilfully‘, ‘knowingly‘, etc. For instance, Chapter VIII of the penal statute of India, the Indian Penal Code of 1860 deals with offences against public tranquillity. The member of an unlawful assembly6 is defined as ‗whoever, being aware of the facts..., intentionally joins the assembly... member of the unlawful assembly.‘

The guilty mental state of mind as an essential element of a crime is also approved by modern philosophy of penology. Some jurists subscribed to the school of thought that retribution is the primary object of criminal law. But modern day jurisprudence believes that punishments should reform the offender. The object is that punishment should fit the offender and not just the offence. The sentencing policy in India‘s penal statute shows instances of having a very modern approach while stating the quantum of punishments to the offenders. For instance, according to the IPC the punishment for the offence of culpable homicide7 varies from fine to an imprisonment extending to ten years to life imprisonment. While on the other hand, the punishment for murder8 is either life imprisonment or death.9

6 Indian Penal Code, s. 142. 7 For definition of culpable homicide see the Indian Penal Code, s. 299 and for the punishment see s. 304. 8 For definition of murder see the Indian Penal Code, s. 300 and for the punishment see s. 302. 9 The author of this paper gained significant leads for this analysis from P S A Pillai‘s Criminal Law, tenth edn., Butterworths Wadhwa, Nagpur, 2008.

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The Indian Perspective of Mens rea:

Though the application of mens rea in Indian penal law has been discussed in the examples above it is necessary to analyze the application in greater depth. The Indian penal code (IPC) defines offences, criteria and conditions for fixing criminal responsibility, punishments as well as a few circumstances in which the liability is exempted. Criminal Responsibility in almost all the offences in the IPC is fixed based on intention, knowledge or reason to believe. Though the term of mens rea does not find a explicit mention in the IPC, essence of the term is reflected in almost all the offences as they are qualified using specific words like ‗fraudulently‘, ‗voluntarily‘, ‗wrongful gain or wrongful loss‘, etc. Thus, every offence in the IPC has mens rea in the essence. However, there are certain offences which are silent about the required mens rea.10 Chapter IV of the IPC deals specifically with general exceptions, which in ultimate analysis elaborates the conditions which are incompatible with a guilty mind or mens rea and thus exempt the offender of any criminal responsibility.

Though the concept of mens rea has been fundamentally planted in the Indian penal laws due to the influence of English Common law, its relevance while interpreting the offences has always been a question to which various jurist present conflicting opinion. The courts have also dealt with this issue and have in fact, enveloped them in considerable confusion. Though, as Glanville Williams observes- this is partly because they feel a continual need to expand criminal liability on social and moral grounds.

The Supreme Court on various occasions has reiterated that unless a statute, either by clear implication, rules out mens rea as a constituent element of a crime, a person should not be found guilty of an offence. In the matter of Ravule Hariprasada Rao v State11, the Supreme Court clearly stated that

10 For example, offences created under s 283, 290, 494. 11 [1951] SCR 322.

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unless a statute explicitly excludes mens rea as a constituent element of a crime, a person should not be held guilty unless he had a guilty mind at the time of commission of an offence. The same court reiterated this in the case of State of Maharashtra v. M H George12, adding that the common law doctrine of mens rea is not applicable to Indian Statutory laws. Subsequently in the matter of State of Gujarat v. DP Pandey13, the apex court has stated the rules of interpretation of penal statutes in the following words: ‗The broad principles accepted by courts in this country as well as in England are: Where an offence is created by statute, it is usually understood as silently requiring that the element of mens rea should be imported into the definition of crimes, unless a contrary intention is expressed or implied. In other words, the plain words of the statute are read subject to presumption, which may be rebutted, that the general rule of law that no Crime can be committed unless there is mens rea, has not been ousted by the particular enactment.‘

Intention:

Intention has no precise definition as such, according to general legal opinion. It is not defined in the penal code. Intention is taken to be a common term, known to everybody. In the jurisdictions which have jury system, this poses a big problem. When the judges provide the jury with definitions or test of intention, they use a wide language which goes beyond the ordinary explanation of the word. Intention can be variedly used to describe object, intent or planning of a person‘s actions. In India, judges, through various judgements have given some clarity when comes to defining intention. Intention is the conscious exercise of the mental faculties of a person to do an act, for the purpose of accomplishing or satisfying a purpose.14

12 AIR 1965 SC 43 13 AIR 1971 SC 866, p. 868 14 Bhagwani Appaji v. Kedari kashinath (1900) ILR

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Illustration:

If a person A fires at B, being fully aware of the consequence of his act, then he is said to have intended the commission of that act.

Intention is expressed in various ways in the IPC, using words like ‗intentionally‘, ‗voluntarily‘, ‗knowingly‘ etc. For example, Section 34 of the IPC talks about common intention15. ‗When a criminal act is done by several persons in furtherance of the common intention...‘

Voluntarily16- Another word used in the penal code to describe Intention is thus defined not in the way it is understood in the common parlance. The definition has actually imported the common law concept that ‗a man is presumed to intend the natural and probable consequences of his own act.‘

Sometimes intention is used with other words to describe a specific state of mind. For example, section 29817 of the IPC deals with the uttering of words which harm religious feelings. Here the expression ‗deliberate intent‘ has been used. The authors of the IPC, while explaining the term ‗deliberate intent‘ have clarified that there must not just be intent, but it should be pre-mediated and not momentarily caused intention.

Distinction between motive and intention:

Many times motive is mistaken to be same as intention. The law generally draws a distinction between motive and mens rea. The mental element of the crime involves no reference to motive. Although motive is not completely irrelevant. It is relevant in evidence and while giving punishments.

15 Indian Penal Code, s. 34 16 See Indian Penal Code, s. 39- A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing, those means, he knew or had reason to believe to be likely to cause it. 17 Indian Penal Code, s. 298- Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

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Illustration:

The distinction that a law draws between intention and motive can be understood by considering the issue of mercy killing where a person A intentionally kills for the greater good in order to end the suffering of the other person B. Here, the motive of the person may be in bonafide interest of B. But if death is the ultimate aim or the purpose of the act then this is regarded as murder in the absence of a valid defence. Thus, though A‘s motive is innocent, his intention, according to law is not.

Thus, a person may act from a laudable motive, but if his intention causes wrongful loss, his crime is complete, irrespective of his motive.18

Indirect or oblique intent:

According to criminal law, an actor can intend a result which is not his primary aim. This result must be a certain consequence of that actor‘s primary aim. Here, it is very important that the result must be a foreseeable certainty and a consequence of the actor‘s primary aim. It is a side effect of the actor‘s primary intention. Sometimes it can also be a pre-requisite to achieve the actor‘s primary intention. The concept can be well explained by a very common illustration:

A person ‗P‘ wishes to shoot ‗R‘. P sees R standing behind a window. P shoots R. Now, P had a direct intention to kill R. But, according to criminal law, P also had an indirect or oblique intention to break the pane of the glass behind which R was standing causing criminal damage. Here that criminal damage was a pre-requisite to P‘s primary purpose of killing R. P knew this and foresaw that it must first occur.

18 Hari Singh Gaur, The Penal Law of India, vol. 1, 11th edn., Law Publishers, Allahabad, 1998, p. 232.

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Generally four mental states qualify as mens rea: General, Specific, Transferred, and Constructive Intent.

General Intent: General intent is the intent required to commit the act which is defined as the crime. It is the intention to do the actus reus. For example, in the offence of rape, the actus reus is sexual penetration and the mens rea will be the general intent of the person to do this act.

Specific Intent: In particular crimes, specific intent is required in addition to the general intent to commit the actus reus, for the mental state to qualify as mens rea. For example, in theft, the intention to steal is required in addition to taking and carrying away.

Transferred malice: It refers to those cases in which the offender intends to harm one victim but harms another. In other words, the malafide intent is transferred. For example, a person ‗B‘ intends to shoot and kill another person ‗C‘, but ends up killing a third person ‗D‘. Here, the offender is held liable for his actions, although his intended victim did not suffer any harm. This is because of transfer of malice the offender had towards the intended victim to the victim who actually suffered harm. But such transfer of malice is not made if the intent was not to accomplish similar harm. The case of R v. Pembliton19 makes this position clear.20

Constructive intent: In Criminal Law, generally, for one to be guilty of a crime, one must have intended to commit the crime. But for some crimes, intent to commit the crime is replaced by "constructive intent". The following illustration describes constructive intent.

Illustration: A person ‗P‘ commits a reckless act, if he gets in a car and drives

19 (1874-1880) All ER 1163. 20 The author of this paper gained significant leads from K N Chandrasekharan Pillai‘s General principles of Criminal Law, Second edn., Eastern Book Company, 2011.

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in a state of intoxication. While driving, he kills somebody; he is liable for homicide.

In this illustration P did not intend to kill anybody. But his intent is constructed from his intent to drink and drive, thus making him liable.

Knowledge as Mens rea:

Knowledge is the awareness of the consequences of the act, on the part of a person. It indicates his state of mind. Knowledge represents the state of mind of the person aware of certain facts and the veracity of which he has no reason to doubt. It is a very subjective state. The line of distinction between knowledge and intention is very thin and in many cases it merges and means the same. But, knowledge, as contrast to intention, suggests a state of mental realization in which the mind is passive recipient of certain ideas or impressions arising in it, while intention connotes a conscious state of mind in which mental faculties are summoned into action for the deliberate, prior conceived and perceived consequences.21

Knowledge is used as a mens rea as an alternative to intention. Intention is the knowledge of the consequence of the act, combined with the desire to commit the act. On the other hand, knowledge is the awareness of certain facts. Questions of knowledge and intention are both essentially questions of facts. Intention is difficult to prove from direct evidence. It is gathered from the circumstances of the case and actions of the accused. Thus, in some serious crimes, knowledge is used as a mens rea.

For example, consider the definitions of culpable homicide22 and murder23 in the IPC. While defining these offences, both the terms ‗intention‘ as well as ‗knowledge‘ are used. So a person, in performing an act expects death to be a

21 Jai Prakash v Delhi administration(1991) 2 SCC 32, 1991 (1) SCALE 114. 22 Indian Penal Code, s. 299 23 Ibid, s. 300

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consequence or expects a dangerous injury as a consequence or knows that death is the likely cause of his act then his intention in the first two scenarios and knowledge in the last scenario make him guilty of the offence of homicide.

Negligence as Mens rea:

Glanville William defines negligence as ‗failure to conform to the standard of care to which it is the defendant‘s duty to conform. It is the failure to behave like a reasonable or prudent man, in circumstances where the law requires such reasonable behaviour.‘24 Negligence is another type of a legal fault like intention, not necessarily involving a mental state. Mens rea is not an unitary concept. It depends on the nature of the crime and it may be the presence of intention in some cases, requirement of knowledge in some while negligence in some others.25 In the case of criminal negligence the defendant is either thoughtless where he ought to be thoughtful, incompetent in a particular job in which he should have been competent(flying a plane), or takes risk knowing the dangers of his actions. As negligence is not necessarily a state of mind, many jurists argue that it cannot be classified as mens rea. But when it comes to the most serious crimes with severe punishments, negligence is considered as a mens rea. The IPC imposes criminal liability to such negligent acts which pose a threat to person‘s life or property. Punishments using negligence as a mens rea are imposed for ‗utilitarian purposes to improve people‘s standard of behaviour‘ according to Glanville William.

Recklessness as Mens rea in Criminal Law:

There are some crimes which can be committed only intentionally. But for nearly all the crimes that require a blameworthy mental state recognize recklessness as an alternative mens rea to intention. There are some crimes for

24 Glanville William, Textbook of Criminal Law, Second edn, Universal Law Publishing Co., Delhi, 1983, p. 88. 25 P S A Pillai, Criminal Law, Eleventh edn., Butterworths Wadhwa, Nagpur, 2012.

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which only intention qualified as a mens rea traditionally. But now, courts are intervening and redefining them to recognize recklessness along with intention as mens rea. For example, definition of rape redefined in R v. Morgan26. Of late, even parliamentarians have begun including it in the statutes by making it an offence to do something ‗knowingly or recklessly‘.

Recklessness means taking a chance. It involves, conscious and unreasonable risk taking, either as to the possibility that a particular undesirable circumstances exist or to the possibility that some evil will come to pass. The culpability of recklessness is subjective and depends on various factors.

Recklessness v. Negligence:

There is confusion amongst various jurists when it comes to differentiating between recklessness and negligence. Recklessness can be a case of gross negligence where recklessness is an extreme departure from the standard of conduct of the prudent man. The subjective definition, however, varies. It tries to understand the defendant‘s mind and try to identify if there was a risk but carried on regardless. Thus, even though inadvertent negligence is punishable, it is treated as a less serious offence as compared to the offences of recklessness, according to the law.

Thus, in negligence the accused is not aware of the consequences of his actions, which he as a reasonable man ought to have been aware of. On the other hand, in recklessness, the accused is aware of the consequences of his actions, but does not care. Thus, recklessness is failure to adhere to a certain standard of care which a reasonable man knows to exercise, acting in a fashion in which the accused was cognizant of the foreseeable danger. While,

26 [1976] AC 182 at 203D-E, 209G-H, 225F.

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negligence also demonstrates a failure to adhere to a certain standard of care, but differs in that accused is unaware of the anticipatory dangers.27

Exclusion of Mens rea in public welfare offences (Strict liability):

It has been well established that mens rea is an essential ingredient of a crime. But this principle also has a few limitations. In the last decade, there has been wide range of social welfare legislations have been enacted in which the mere commission or omission of acts enough to fix criminal responsibility. For example, in this age of industrialization, the malfunctioning of machines in a factory, poses a huge threat to not only the factory workers but also outside population. The factories, in order to save production costs, are least bothered about putting proper safety measures in place. The victims of Bhopal Gas Tragedy were not limited to the workers but the general public of Bhopal. The effects of this terrible tragedy are still felt today. Thus, in order to protect the public at large by laying down standards of care for the factories, the state has brings about legislations which exclude mens rea as a sine qua non element of offences which are in violation to these legislations. In other words, no mens rea or legal fault is required for imposing criminal liability.28

For example, the Factories Act 1948 stipulates that machinery must be adequately fenced; there must be signboards which indicate danger areas, etc.29 This is an example of a social welfare legislation enacted to protect the interest of the workers of the factory. Hence the compliance with its provisions is vital. Therefore, for the offences done in violation of the provisions of this act, proving of mens rea is not necessary.

27 Carlan, Nored and Downey, An Introduction to Criminal Law, Jones and Barlett Publishers, LCC, p. 13. 28 LH Leigh, Strict and Vicarious Liability, Sweet & Maxwell, 1982. 29 P S A Pillai, Criminal Liability, Eleven edn.,LexisNexis Butterworths Wadhwa, Nagpur, 2011.

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Corporate criminal liability: Fixing Criminal responsibility on Corporations:

Traditionally, fixing liability on a corporation was next to impossible. The view was that a corporation being a separate legal entity could not be charged due to procedural difficulties. This was due to the absence of mind, because of which it could not form the required intention to commit a crime. Also, while punishing, a corporation could not be arrested nor could be inflicted with bodily punishments. It could not be compelled to be present during criminal proceedings.

The evolution of corporate criminal liability is a striking instance of judicial change in law. The non-liability of a corporation soon gave way to the idea that it can be made liable for non-feasance, i.e. an omission to act. The courts, over the years have well established this fact. Viscount Haldane LC in Lennard‟s Carrying Co Ltd v Asiatic Petroleum Co Ltd,30 enunciating the so- called alter ego or organic theory of the corporate criminal liability, observed:

‗A corporation is an abstraction. It has no mind of its own any more than it has a body of his own, its active and directing will must consequently be sought in the person of somebody who for some purposes may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation ... The Board of Directors are the brains of the company which is the body, and the company can and does act only through them.‘31

In modern times, intent of managers and agents is attributed to the corporation. The Board of directors or any governing body of a corporation is its alter ego. This way the corporation, is criminally held responsible for the actions

30 [1915] AC 705 31 Ibid., at 713.

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committed by a person who at the relevant time was the directing mind and will of the corporation.32

Indian courts have also taken a similar position. For example, in the matter of State of Maharashtra v Syndicate Transport33 the Bombay High Court did not see any reason for exempting a corporate body from liability for crimes committed by its directors, agents, servants while acting for or on behalf of the company. While deciding the case of Asst Commr, Assessment-II, Bangalore & Ors v M/s Velliappa Textiles Ltd & Ors34 in the year 2004, the Supreme Court dealt with the issue of fixing criminal responsibilities on the companies. It held that the companies can be held responsible by attributing it the mens rea of those who work or are working for it. This judgement has also equivocally endorsed that the alter ego theory is applicable in India. But, a corporation cannot be held criminally liable for the offences which because of their nature can only be committed by individuals and not corporations. For example, offences such as sexual offences, bigamy, perjury, murder and treason. Also it cannot be held liable for offences that have punishable by mandatory corporal or capital punishment.

Vicarious Liability:

According to criminal law, a man should be normally be punished for his own acts. But since ancient times, there have been instances where of tribal feuds where a person P, belonging to a particular clan takes vengeance against Q, belonging to a rival clan for the acts committed by R, of the same rival clan. Such instances, where an individual or a group of individuals are punished for the acts done by another individual or group of individuals, are also followed in modern times. But fixing such liabilities is very restrictive. For example, the concept of imposing group fines upon villages by governments.

32 Celia Wells, Corporations and Criminal Responsibility, Oxford, 2001. 33 AIR 1964 Bom 195. 34 AIR 2004 SC 86

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But still, there is a compelling principle that man should not be penalised for the wrong of another. Thus, the principle of vicarious liability, which plays a important role in torts is not extended to criminal law except for:

(1) A master is vicariously liable for libel published by his sevant. (2) A master is vicariously liable for a public nuisance committed by his servant.35

The doctrine of vicarious liability is based on the maxim ‗qui facit per alium facit per se.‟ This means that, he who acts through another acts through himself. This maxim is generally applicable to tort law, but not to criminal law. The master is criminally responsible for the guilty acts of his master, only when the acts performed by the servant were authorized by the master. This is based on the common law doctrine of mens rea. Here the blameworthy mental state will be of the master and not the servant.

Conclusion:

The various aspects of Mens rea have always been a point of conflicting argumentation amongst various jurists. For fixing responsibility on an offender accused of committing a criminally liable act, it is necessary to prove a blameworthy state of mind. A person‘s mental state is a manifestation of his inner feelings and understanding it is never easy. Thus, proving mens rea has always been a challenge for prosecutors. As what is going on in a person‘s mind is never understood, it is analysed with the help of his actions. Various elements like knowledge of the consequence of the act, a strong motive for committing the act, etc help in analyzing the same. These elements represent the various degrees of mens rea of the crime. The paper has dealt with all these aspects of mens rea in detail and has tried to compare them with each other. Some of these aspects mean almost the same, when discussed in general parlance, but each of these aspects and its usage in the legal parlance has a

35 PSA Pillai, Criminal Law, LexisNexis Butterworths Wadhwa, Nagpur, 2011, p. 52.

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special significance. Here, a comparison between has been very helpful in understanding the distinction between them. The paper also dealt with continuously evolving issues like corporate criminal liability. With judgements of a few cases and critical analysis it is understood that corporations can be held responsible for the actions done by the persons who direct the affairs of the company.

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JURISPRUDENTIAL ANALYSIS: RIGHTS OF THE LEGAL PERSONS IN THE LIGHT OF BANK NATIONALISATION CASE1

Preeti Sharma*

BRIEF FACTS

On 19 July 1969, the Acting President promulgated in the exercise of the power conferred by Clause (1) of Art. 123 of the Constitution, Ordinance 8 of 1969 transferring to and vesting the undertaking of 14 named commercial banks set up under the Ordinance. In the schedule to the act, were included the names of fourteen commercial banks. Under the ordinance the entire undertaking of every named commercial bank was taken over by the corresponding new ban, and all assets and contractual rights and all obligations to which the named bank was subject stood transferred to the corresponding new bank. A petition challenging the competence of the President to promulgate the ordinance was lodged in this court on July 21, 1969. But before the petitions could be heard by the Supreme Court, a bill to enact provisions relating to acquisition and transfer of undertakings of the existing banks was introduced in the Parliament was enacted as “the Banking Companies (Acquisition and Transfer of Undertakings) Act 22 of 1969”. The petitioner challenged the act and ordinance on various grounds out of which one was the violation of fundamental rights guaranteed under Article 14 and Article 19 under the Constitution.

RATIO DECIDENDI

The Supreme Court in this held that the Constitution is Supreme and it guarantees fundamental rights to its citizens. The law after this should be

1 R.C.Cooper vs. Union of India, AIR 1970 SC 564 * Student, Institute of Law, Nirma University, Ahmedabad, Gujarat, India

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taken to well settled whenever the discussion crops up in Article 21. It is should be understood as a well settled law that the Article 21 of the constitution does not exclude Article 19 in any manner whatsoever after this case. And if there is any law enacted by legislative body which prescribes procedure to deprive a person of his personal liberty and there is consequently no infringement of any other fundamental rights guaranteed by the constitution under Article 21, such law would be void and null so far it abridges or takes away any fundamental right guaranteed by Article 19. And also it would be required to meet the challenges posed by that Article. Any such law should also be tested in the light of Article 14 and the procedure prescribed by it would have to answer the requirement of that article.

In the same case, the Court has also held that a law which seeks to acquire or requisition property for a public purpose should also satisfy the requirements of Article 19 (1) (f). It can be said that the courts have now gone into taking into wider interpretation of the Article 21.2

In a nutshell, the courts have widened the scope for their interpretation when it comes to determination of the rights of a person so that they are not deprived of their rights and justice can be served to them.

ANAYSIS

Before we start any discussion with respect to rights of the persons or legal persons, first let‘s understand the meaning of the word ―person‖. The word ―person‖ is derived from the Latin word ―persona” which meant a mask worn by actors playing some part or roles in the drama. Until the sixth century, the word was used to denote the part played by a person in a life/drama. After that, it began to be associated with the human being capable of holding rights and duties. many authors and writer have restricted to denote the word person

2 The idea has been taken from the Twenty-fifth Amendment, 1971 object and reasons of the Act

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to human being alone because it is only they who can be subject matter of rights and duties and therefore, of legal or juristic personality. But now it is not only human beings that are associated with the word person but also includes idols, corporations3, although they are not human beings. The word ‗person‘ has been given wider interpretation.

According to Salmond, ―person is any being to whom the law regards as capable of rights and duties‖ Any being that is so capable, is a person, whether human being or not and nothing that is not so capable is a person even though he be a man‖4

In juristic terms, there are two kinds of persons, i.e., natural and legal. Natural persons are those persons who are capable of holding and exercising rights and duties. While the legal persons are those who are given recognition by law and in who rights and duties are imposed by law of the land. Legal persons may be both real and imaginary. A juristic person may be any other subject matter. Anything or a group of human beings or a mass of property to which the characteristics of personality can be attributed are juristic persons.

A company registered under the companies act is also a legal person which separate distinct identity from its individual shareholders. A company is considered to be a legal person because its existence is recognised by law. It does not exist in reality. But it works as separate identity. A separate identity to a company has been given to attribute rights and duties which are given to the natural persons. Like natural persons, a company legal person also has some rights and duties to be performed. It was necessary to accord separate identity for the purpose of lifting of corporate veil to avoid any frauds.

In the present case, the situation has already been explained in the form of brief facts. This is considered to be a landmark judgment in determining the

3Saloman v Saloman 1987 AC 22 4 Fitzerald P.J.; Salmond on Jurisprudence 1988 (12th Ed.) page 299

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rights of the company. The main issue which revolved around the case was whether the company, legal persons, also has fundamental rights like other natural persons?

Fundamental Rights under Part III of the Indian Constitution are guaranteed to all the citizens. So the question lies here is what about the rights of the legal persons such as corporations, companies etc.?

The answer to both the above stated question lies in the constitution which guarantees the fundamental rights. Fundamental Rights are the rights very basic to the existence of a person. These rights are guaranteed so to give a worth living life and in a dignified manner. But the fundamental rights cannot be guaranteed to artificial persons because jurisprudence of granting fundamental rights was to the enable the citizens of the country making their life worthwhile. But if such are given to the corporations, then the jurisprudence behind it would fail. The simple reason is because incorporations would not be able to exercise their rights o their own but they would be exercised by the individuals carrying out the operations of that incorporations. Hence this would defeat the very idea of giving rights to the individuals and exercising those rights by themselves.

Fundamental rights such as right to freedom of speech and expression, right to life etc. cannot be given to the artificial persons because only natural persons would be able to exercise it. In the case of State Trading Corporation v Commercial Tax Officer,5 the Supreme Court held that word ‗citizen‘ is intended to refer only to natural persons and that a legal body such as a corporation cannot claim the status of citizens for the purpose of invoking fundamental rights under Part III of the constitution.

Although the companies do not have fundamental rights being an artificial person but it guarantees the rights of the shareholders if any injustice is being

5 1963 AIR (SC) 1811

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done to them. The court in this held that a measure taken by the legislative and executive body may by its orders and acts and ordinance can impair the rights of the company alone and not of its shareholders. The court‘s jurisdiction to grant remedy/relief cannot be denied, when by the states action, the rights of the individual shareholder are impaired but if that action impairs the right of the company as well. Following the above decisions, it was observed that a share holder is entitled to protection of fundamental rights. That individual rights of the shareholder is not lost by the reason of the fact that he is shareholder. The reason why the shareholders\‘s fundamental rights are protected is that when a court applies the qualitative test on the ratio that the shareholders rights are equated and correspond to the interest of the company. The shareholders own the property through the company. The shareholders carry on business through the medium of the company.6

Here we can answer both the above questions after the judgement given in this case (Bank Nationalisation Case) and the State Trading Corporation case, the company do not have any rights as guaranteed to the natural persons because the unlike natural persons, artificial persons cannot exercise their rights on their own. They would be exercised by the natural persons indirectly thus defeating the jurisprudence of giving a fundamental rights to the citizens. The corporations do get rights but not all the rights of the natural persons. Their rights are being recognized to some extent. But to talk about the fundamental rights, only the shareholders possess these rights and in case of infringement of their rights, the courts entertain their petition if the State action impairs the rights of the shareholders.

Various principal jurisprudential theories which talk about the corporate personality concludes that the legal entity of the corporation is artificial which is also now a settled law after the discussion in various cases by the apex

6 Original judgment: R.C.Cooper vs. Union of India, Para 13,14; Also referred in D.D Basu, Commentary on the Constitution of India, Vol.3

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court. The majority fiction, concession and symbolist theories the above stated argument. As per these theories, the existence of a corporation is not real. It only exists as a legal unnatural person and are devoid of fundamental rights like citizens. These corporation exits only because they are given a legal recognition by state and by the law of land. Their mere existence is guided by certain objectives and purpose to be fulfilled for which they come into existence.

The fiction theory, for example, clearly states that the existence of corporation as a legal person is purely fiction and that the rights attached to it totally depends on how much the law imputes upon it by fiction.

CONCLUSION

I would end this analysis by stating the ratio held in the case of Tata Engineering Company v. State of Bihar, by the Apex Court that ―since the legal personality of a company is altogether different from that of its members and shareholders, it cannot claim protection of fundamental rights although all its members are Indian citizens. Though a company is not a citizen, it does have a nationality, domicile and residence. In case of residence of a company, it has been held that for the purposes of income tax law, a company resides where its real business is carried on and the real business of a company shall be deemed to be carried on where its Central management and control is actually located.‖7

At the end, I conclude this analysis by saying that company is not a legal person neither under the Constitutional law of India nor the Citizenship Act, 1955. The simple reason for this is that the citizenship is granted only to the individuals i.e. natural persons and not to unnatural entities such as corporations, societies etc. This not granting of citizenship disables the artificial persons to claim any rights so guaranteed to the natural persons, but the artificial entities can only claim rights which are available to everyone and not exclusively to the citizens.

7 1964 SCR (6) 885

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NEED FOR SPEED AND MOULD: DECORATING COURTS WITH E-EQUIPMENTS

Sudipta Bhowmick1 Md. Dilawar Khan2 Introduction:

Indian Legal system is the memento, by and large, of the Britishers. Indian legal system is a hybrid construction embracing English common law structure, with civil law features of codification, while maintaining a precedential system with full vigour. Originally what was seeded as English oak it has manifested and flourished into an Indian banyan tree under whose affectionate penumbra India's Judiciary has grown into one of the reformative Judiciaries in the world. Indian Judiciary has extended its support not only in socio-cultural but also in the economical, political milieu by spelling out certain basic principles and values, a set of norms, rights and duties of the citizens in the laws to administer the system with the most judicious and efficacious way. In the words of Chief Justice, Y.K. Sabarwal (Retd.) ―Democracy, liberty and the rule of law together represent the troika that is universally accepted now as the index of a civil society.‖3 There are three Best Things about the Indian legal system- these are: (1) The Written Constitution; (2) The Rule of Law; and (3) Independence of Judiciary. By all accounts, the collective destiny of one billion people lies in the vigil hand of Judiciary, so well compared to other two wings of the Government, which has performed well sustaining the trust of the people in its independence, fairness and impartiality.

1 Student, B.A.LLB 3rd year, KIIT School of law, KIIT UNIVERSITY, Bhubaneswar, Odisha, Email id:[email protected] , Mobile : +91-9040646573 2 Student, B.B.A.LLB 3rd year, KIIT School of law, KIIT UNIVERSITY, Bhubaneswar, Odisha, Email id:[email protected] , Mobile : +91-8093265120 3 Role of Judiciary in Good Governance, available at: http://supremecourtofindia.nic.in/speeches/speeches_2006/good%20governance.pdf(Visited on April 15, 2014)

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But Indian Judiciary is aging. Judiciary which is a symbol of Justice, slowness in case clearance has crippled its credibility. Justice delayed is justice denied. This delay, in fact, collapses the entire fabric of justice delivery system of the country. This slowness can be accelerated by decorating the courts with E- equipments. E-court with the wheels of Information and Communication Technology can fashion the court into new design by which not only clearance of the cases would be faster but also victims dignity would not be compromised.

Law is dynamic. Dead hand of the past cannot stifle the growth of the living present. The Supreme Court in the case of Som Prakash v. State of Delhi4 rightly said that “in our technological age nothing more primitive can be conceived of than denying discoveries and nothing cruder can retard forensic efficiency than swearing by traditional oral evidence only thereby discouraging the liberal use of scientific aids to prove guilt.” Hence, law must constantly be on the move adapting itself to the fast changing society and not lag behind ustodian of law, the Judiciary, must not lag behind either. Modern volksgeist is that Indian Judiciary should embrace the advent of technology to function more efficiently. The law must keep pace with scientific developments and other contemporary changes in the society. Though, in case, black letter of law does not provide the justification of information technology, law has to be treated as always speaking.5 "The language of the statute is generally extended to new things which were not known and could not have been contemplated when the Act was passed, when the Act deals with a genus and the thing which afterwards comes into existence was a species of it."6

4 1974 Cri LJ 784 5 Francis Bennion, Statutory Interpretation 617 (5th edn.) (See also Upasana Bali vs State Of Jharkhand And Ors on 19 September, 2012 (W.P.(C) No. 5288 of 2012)) 6 P. St. J. Langan, Maxwell on The Interpretation of Statutes 102 (12th edn.) (See also Upasana Bali vs State Of Jharkhand And Ors on 19 September, 2012 (W.P.(C) No. 5288 of 2012))

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Why Old Judiciary Needs e-Stick?

Old Judiciary needs e-stick for the following three reasons:

Firstly, the Indian Judiciary consists of the Supreme Court with 30 judges, 21 High Courts with a sanctioned strength of 725 justices (proposed to be increased by another 100 to 150 judges) and approximate 15000 subordinate courts / judges. 25-30 percent judges are always short of hand which does not proportionate to one billion population. According to the Law Commission (120th Report, 1987)7 the number of judges per million population in India was 10.5 which may have gone up to between 13 or 14 per million by now. Though In the All India Judges‘ Association Case8 the Supreme Court addressed the Central and State governments over a five year period to achieve the judge to population ratio as 50 per million it was not acted upon due to financial constraints.

According to Five Year Development plan Union Government has allocated less than one percent of total budget. So the Court has to depend upon non- plan budget which remains almost static.9 Hence, the Court does not get any scope to modernize itself.

In terms of the volume of work, it is estimated that nearly 30 million cases are pending in the Court system in India at any given point of time and the average fresh filing every year fluctuates between 15 to 18 million cases which figure is on the increase. The average disposal more or less matches with the filing.10 In 2006, the cases pending in the dockets of different courts in the country stood at a staggering figure of 36 million cases in spite of the

7 Manpower Planning In India: A Blueprint, available at: http://lawcommissionofindia.nic.in/old_reports/rpt120.pdf (Visited on April 9, 2014) 8 [(2002) 4 SCC 247] 9 Law And Justice : A Look At The Role And Performance Of Indian Judiciary, available at: http://indiandemocracy08.berkeley.edu/docs/Menon- LawANDJustice-ALook%20.pdf(Visited on April 20, 2014) 10 Id.

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rate of disposal increasing nearly 30 per cent between 1999 and 2006.11 Hence, the cause of concern is fresh filing. Fresh filing is increasing more rapidly than disposing of cases and leads to huge pendency of 35 million cases which are just 2 years old.

It is also of great importance to ensure that the Justice is meted out as “to secure the just, speedy and inexpensive determination of every action”12 in the judicial proceeding, especially in the field of criminal law. As it is known that Justice, meted out, must be “just and ready” as opposed to “rough and ready.

Secondly, in Court paper is found in every nook and corner. From filing a case till its disposal it is the integral part of Court proceeding. Hence, great bulk of paper is being channelized into dustbin, though these are recycled but huge portion is wasted.13 This is against the main mantra of Eco-friendliness. Another great problem is the data carriage. Huge bulk of paper is transferred manually which is a difficult task and is time consuming. Also record rooms are flooded with files and papers and searching a file is hectic and it will take a lot of time.

Thirdly, The constitutional guarantee of speedy trial is an important safeguard to prevent undue and oppressive incarceration prior to trial; to minimize concern accompanying public accusation and to limit the possibilities that long delays will impair the ability of an accused to defend himself.14 The right to speedy trial is guaranteed under article 21 of Indian Constitution.15 The basis for the right to a speedy trial and similar rights which are meant to expedite the legal system, because it is unfair for the injured party to have to sustain the

11 Id. 12 Judicial Reforms In India, available at : http://supremecourtofindia.nic.in/speeches/speeches_2008/31[1].10.08_judicial_reforms_- london.pdf(Visited on May 10, 2014) 13 Introduction of e-Courts in Indian Judicial System By Eliza Gupta 14 Right To Speedy Trial, available at: http://www.legalserviceindia.com/article/l297-Right- To-Speedy-Trial.html(Visited on April 29, 2014) 15 Hussainara Khatoon(I) v. State of Bihar, AIR 1979 SC 1360; Sheela Barse v. Union of India, 1986 SCALE (2) 230

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injury with little hope for resolution.16 The capacity and efficiency of a Judicial System is judged by the time taken for the disposal of a case.17 With the rapid growth in industrial field, technology and population, workload has increased on all the three pillars(Executive, Legislature and Judiciary) especially on the judiciary system which calls for effective and rapid disposal of ever increasing cases but the effectiveness of the court is hampered badly.18

Technological Affection: Strengthening the Infrastructure of the Courts

Indian Judiciary is in urgent need of rejuvenation. This revamp can be processed through maximization of the use of its human resources and bringing about change in management by utilizing the nectar of the available Information and Communication Technology (ICT) to its fullest extent to enhance the Judicial productivity both qualitatively and quantitatively as also make the Justice delivery system affordable, accessible, cost effective, transparent and accountable.

According to Mayank Saxena Senior Industry Analyst, ICT Practice, Frost & Sullivan – South Asia & Middle East "e-Judiciary is a judicial system that uses the Internet and electronic documentation from the time the case is registered until the time judgment is rendered; the records of proceedings and judgment can be accessed for future reference. An ideal e-Judiciary system for any country at a given point of time should be compatible with the socio- economic factors of that country at that point of time."19

1. Properly designed Court Complexes: It is essential that the court complexes will be decorated with laptops, laser printers, Internet Connectivity, Hardware, Networking, Application Software, Technical manpower. This is a

16 Right To Speedy Trial, available at: http://www.lawyersclubindia.com/articles/Right-to- Speedy-Trial-3554.asp#.U3Oj7PmSwk0,(Visited on May 5, 2014.) 17 Id. 18 Id. 19 Potential Of E-judiciary In India, available at: http://computer.financialexpress.com/20081124/itingovernance14.shtml(Visited on April 30, 2014)

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great step forward with advent of e-court for which usage of paper will be reduced to a great extent. Now, one can easily carry endless data they required in their pockets with the help of pen drives, micro sd- cards, CD‘s, DVD‘s and other devices. Right from filing a case till its disposal, all information regarding the case status, number of adjournments, applications moved and reasons, orders, judgments will be available online.20

2. Service: All court orders, notices, summons for appearance or summons for production of documents may be served through e-mail and in the absence of the e-mail of the addressees, through the e-mail of the police station. All bail orders can be communicated to the Jail through e-mail for delivery to the undertrial prisoners.

3. Recording of evidence: All courts ought to be provided with Audio recording through tamper-proof technology for recording of statements of witnesses to gather evidence.

4. Machines: Audio-recorded statements can automatically be transcribed and supplied to the counsel & witnesses on the same day through transcription machine.

This infrastructure will reduce the burden of courts, time consumed for applying and getting the certified copies of orders and judgements will no longer be a problem. To search any record or file, one has to search for a person who can search the file. Such can be done only if that particular person is acquainted with the place where all records and placed. This at times, becomes a difficult task which is also time consuming. This has changed and all the computers will be connected with same network and data sharing and searching will be an easy task to handle.

Video-conferencing

20 Information Technology Knocking At Court Doors, available at: http://lawyersupdate.co.in/LU/8/931.asp(Visited on April 29, 2014)

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The introduction of the concept of Video-conferencing has ushered a new era in Indian Criminal Justice system. Video-conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence.21

Though the validity of video-conferencing is justified by the Section 273 of the Criminal Procedure Code22, interpretation of the statute is called into question. In case of Dharmand Pant v. State of U.P.23 the Court upheld the validity of video-conferencing for the first time. But the Court in the case of State of Maharashtra v. Dr. Praful B. Desai24 justified the use video-audio system for taking evidences. The Court came to the conclusion in P. B. Desai25 case that as long as the accused or his pleader are present when evidence is recorded by video-conferencing that evidence is being recorded in the ‗presence‘ of the accused and would thus fully satisfy the requirements of Section 273 of the Criminal Procedure Code.26 Recording of such evidence would be as per ―procedure established by law under Article 21 of the Indian Constitution‖.27 Also, many states including Madhya Pradesh, Andhra

21 State of Maharastra v. P.B Desai, [ (2003) 4 SCC 601]

22 Sec. 273 of Cr. P.C denotes that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.

23 1957 Cri LJ 894 24 (2003) 4 SCC 601 25 Id.

26 During the trial all the evidence shall be taken in the presence accused or in the presence of his pleader. This presence means physical presence in flesh and blood in the open court

27 Section 3 of the Evidence Act,1872 states that " In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: -"Evidence" - "Evidence" means and includes-(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;(2) All documents including electronic records produced for the inspection of the court, such documents are called documentary evidence. " A bare perusal of Section 3 of the Evidence Act, 1872 clearly indicate that evidence means and includes all statements which the court permits or requires to be made before it by witnesses. Therefore, any statement which reaches to the court through audio

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Pradesh, Karnataka and Tamil Nadu have amended Section 167 of Criminal Procedure Code so as to provide for production of the accused persons to the magistrate through electronic video linkage for the purpose of remand.28

Advantages of Video-conferencing:

1. Video-conferencing will increase safety in courthouses and during escorts by eliminating unnecessary prisoner movements it can reduce crowding and tensions. This can improve safety inside correctional institutions and the chances of contraband entering will be reduced.29

2.Videoconferencing can help reduce some expenditures of Correctional centres which can reduce time spent logging prisoners and their personal effects in and out. Regular videoconferencing links for inmate appearances should lessen the need to expand cellblocks or vehicle fleet. Witness appearances can occur at reduced cost and with greater certainty.30

3. Cost of proceedings can be reduced by avoiding travel for witnesses, the party, co-counsel or judges. Conducting a scheduled videoconference can

visual electronic media is also the statement of the witness before the Court and that is called oral evidence.

Sections 65A and 65B of the Indian evidence act,1872 includes a special provision as to evidence relating to electronic record and admissibility of electronic records has been introduced with effect from 17th October, 2000. Therefore there is no bar of examination of witness by way of video-conferencing being essential part of electronic method.

Order 18 Rule 4(3) of the Code of Civil Procedure, presence does not necessarily mean physical presence. Rule 4(3) states about recording evidence either by writing or mechanically in the presence of judge.

28 For example the State of Andhra Pradesh, in section 167, sub-section (2)(i) to clause (b), added the following at the end, namely- ―either in person or through the medium of electronic video linkage;‖ 29 The Advent of the Concept of Video Conferencing in Criminal Trials:Need and Benefits, available at: http://www.goforthelaw.com/articles/fromlawstu/article74.htm(Visited on April 23, 2014)

30 Videoconferencing, available at: http://www.ag.gov.bc.ca/courts/faq/info/videoconferencing.htm(Visited on April 25, 2014)

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eliminate or reduce obstacles to case completion and provide better access for protected and vulnerable witnesses and the judiciary can dispose the cases of remand prisoners in short time and can concentrate on the trail cases.31

In Camera Trial:

With the introduction of ICT(Information Communication Technology) in the Indian Judiciary System, there is a great transformation in the Indian Judiciary. This has brought about a fundamental change which will soon be spread nation-wide. Though In camera trial is totally detached from Information and Communication Technology it has wider significance in the Indian Judiciary. "In camera" is a legal term that means in private. In "In camera" cases public and press are not admitted to.

Under Sections 327(2) and 327(3) of Criminal Procedure Code it is stated that

2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code (45 of 1860) shall be conducted in camera:

Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the court. (3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the court.

In Sakshi v. Union of India32, involving victims of rape or sexual abuse, the Court upheld the use of videoconferencing to obtain the testimony of the

31 Id. 32 (1999) 6 SCC 591

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victim because the sight of the accused may fill the victim with fear and inhibit testimony.

Every person and press have the right to access the courtroom and publish the Proceeding matter as their wish. This right should not be compromised at any cost except victim's dignity and national security are the utmost concerns. Recent Delhi Gang rape case In camera Proceeding in Subordinate Court has been made mandatory by Metropolitan Magistrate by invoking Sections 327 (2) and 327(3) of the Criminal Procedure Code. Hence, all public persons and everybody present in the courtroom, except the prosecutor and the accused persons, are directed to vacate the courtroom. It shall not be lawful to print or publish any matter or content in this case, except with the permission of this court.‖33

Conclusion: the e-Stick: Reliable or Unreliable ?

"The people's faith in the judicial system will begin to wane, because justice that is delayed is forgotten, excluded and finally discharged."34 Our justice system even in grave cases, suffers from slow motion syndrome which is lethal to 'fair trial' whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.35 The chief reasons for delays can be enumerated as follows: delay in disposition of cases, the judge – population ratio, the poor infrastructure of the lower courts, provision for adjournment, delaying of investigative agencies etc. ―It is imperative, therefore, to introduce innovative and creative solutions to tackle this hindrance.‖ The creative solution can be found by reaching out to the hands of technology.

33 "Chaos In Court : Magistrate Orders In Camera trial" The Hindu, Jan. 7, 2013. 34 "Backlog of Cases Causes Concern: CJI" The Hindu, Aug. 16, 2007. 35 Babu Singh v. State of U.P., AIR 1978 SC 527

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Abovementioned, all e-equipments can help the court reduce cost, paper etc. and specially videoconferencing may help reduce the troubling delay in their judicial proceedings. videoconferencing schemes may also save the government money. However, there are very real risks involved with it.

Firstly, a video image of an undertrial cannot be a substitute for actually having a person in courtroom. Because there is a certain chance of being edited or altered the recording before presenting the court. And the other thing is that demeanour of a witness on Videoconferencing cannot be scrutinized fully for lacking of totality of circumstances which can be discerned better by human presence. The off the camera situation cannot be fathomed such as any intimidation or other undue influence by the police.

Secondly, Article 22(2)36 of Indian Constitution provides arrestees a real physical and emotional respite from police custody. This physical production is vitally important given the already troublingly high incidence of custodial deaths, torture, rape and other abuses in Indian detention facilities. If the Article 22(2) production clause is diluted through videoconferencing, a Magistrate may not be able to discern the physical condition of an undertrial, and may overlook signs of custodial torture. Also, the undertrial appearing by videoconferencing will not be able to benefit from the moral and emotional support accruing from physical proximity to any friends and family in the courtroom. Isolated and demoralised in conference room or a jail cell far away from an independent judicial officer, he or she may not be able to summon the courage to complain of real custodial abuses.

36 Art.22(2) of the Indian Constitution denotes that Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

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Lastly, In Praful Desai37 case, the Court was dismissive of the potential for technical mishaps: ―By now science and technology has progressed enough to not worry about a video image/audio interruptions/distortions.‖ However, these are not trivial, especially when the undertrial‘s rights to life and liberty are concerned. For example, the inauguration of the videoconferencing system in Karnataka High Court was reportedly ―not exactly a smooth launch as the audio facility failed to click, apparently due to an ISDN link failure.‖38 Other important and legitimate logistical concerns have to do with the fairness of a trial conducted via videoconferencing and the ability of the accused to benefit from the right to counsel and to participate in his or her defence.

Also, overall technological awareness in current judges are very low and the judiciary as a whole needs to be trained in new technology, its benefits and drawbacks and the various usages.39 The judiciary may alternatively appoint new judges and setup special Courts to deal with the matters relating to ICT and the Government can also setup special tribunals to deal with matters relating with ICT.40

But, to avoid the negative aspect of video-conferencing there must be mechanisms to ensure that this does not compromise the rights of the parties involved. Especially in the field of criminal law, the rights of the accused cannot be undermined, and any mechanisms adopted to expedite management of the cases must conform to standards that secure for the accused the right to a fair trial. Ultimately, both parties benefit from an expeditious trial so long as it is ensured that no great detriment is caused to either party.

37 (2003) 4 SCC 601 38 "Courts To Be Linked To Prisons Through Video-Conferencing" The Hindu, Apr. 22, 2003.

39 Strategies for E-Governance in India, available at: http://indiaegovernance.blogspot.in/2008/04/strategies-for-e-governance-in-india.html(Visited on May 1, 2014).

40 Id.

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"We the people of India having solemnly resolved to constitute India into a sovereign, socialist, secular, Democratic Republic and to secure to all its citizens -- Justice, -- social, economic and political .... ."41 But sixty years after Independence, we have enough laws but not enough justice. At least, e-courts, instead of its disadvantages, will provide faster justice delivery system while ushering a new era of judicial governance where accountability, transparency, responsiveness, credibility will be the new colours of Justice and also, e- Courts will shift the "ultimate responsibility for the control of litigation... from the litigants and their legal advisers to the court."42

41 The Preamble of the Constitution of India 42http://www.venice.coe.int/sacjf/2009_08_BTW_Kasane/speeches/Gicheru_Judicial_Reform s.pdf (Visited on April 12, 2014)

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THE NAME HIJACKING Priyanka Kumari* Aditya Tiwari** INTRODUCTION

Internet domain names have a huge market of their own. The world witnessing a new change in the field of communications has created endless new opportunities for the citizens of cyberspace. The growing importance that the internet has played in the consumer‖ lives and the world–wide change in consumption habits has turned it into a powerful tool for businesses to promote, advertise, and sell products and services1.Unfortunately, as with most tools, not all uses of the Internet are laudatory, or even benign. As anyone who has ever had his computer attacked by a viruses, malwares or read about ―cyber fraud‖ knows, that Internet is also a prime arena for dishonest and unlawful conduct. Unscrupulous Internet behaviour includes trademark infringement. Many businesses have fallen prey to so-called cyber squatters, individuals who register Internet domain names containing trademarks of others.2

The cyber squatting scam works as follows, the cyber squatter registers an Internet address (known as a ‗domain name‘) that includes another person's trademark.

Domain Names

Domain name which is formally known as URL or Uniform Resource Locator is an address to a specific website. A domain name is easy to remember and identify. It is easier to reach a company‘s or a famous personality‘s web site if

*University of Petroleum and Energy Studies, Dehradun ** University of Petroleum and Energy Studies, Dehradun 1 Zohar Efroni, ―The Anticyber squatting Consumer Protection Act and the Uniform Dispute Resolution Policy: New Opportunities for International Forum Shopping?‖ 26 The Colum. Journal of Law & the Arts 335 (2003). 2Michael P. Allen, ―In Rem Jurisdiction from Pennoyer to Shaffer to the Anti cyber squatting Consumer Protection Act‖, 11 George Mason L. Rev. 243 (2000).

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its domain name corresponds to company‘s name or its leading product or it is name of that famous personality. For example, Apple‘s web site can be accessed at https://www.apple.com3 or Audi‘s web site could be accessed at http://www.audi.in4. Domain name help user to find exact location of their destination on internet. Once the legal technology expert Andre Brunel also defined Domain Name as, ―A unique designation (or computer readable address) used to identify a particular computer (web server or mail server) on the Internet. Now, as we have seen that all domain names are made up of a series of character strings which are known as labels separated by dots. The right-most label in a domain name is referred as ―top-level domains‖.5 For example, in http://upes.ac.in 6 the top-level domain or TLD is ―.in‖.

TYPES OF TOP LEVEL DOMAIN (TLD)

There are basically two types of TLD:

 Generic Top Level Domain (gTLD)  Country Code Top Level Domains (ccTLD)

Generic Top Level Domain (gTLD)

Generic top level are those TLDs that are formed of three or more characters.

In the 1980s, seven gTLDs (.com, .edu, .gov, .int, .mil, .net, and .org) were created. Domain names may be registered in three of these (.com, .net, and .org) without restriction; the other four have limited purposes. In years following the creation of the original gTLDs, various discussions occurred concerning additional gTLDs, leading to the selection in November 2000 of seven new TLDs for introduction. These were introduced in 2001 and 2002.

3 Apple Inc. is a multinational company that manufacture computer hardware, computer software, and various other consumer electronics. 4 Audi is a German automobile manufacturer which is headquartered at Ingolstadt, Germany 5 https://archive.icann.org/en/tlds/, last accessed on 11-04-14. 6 Web site of university of Petroleum and Energy Studies, Dehradun.

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Four of the new TLDs (.biz, .info, .name, and .pro) are unsponsored. The other three new TLDs (.aero, .coop, and .museum) are sponsored.7

Generally speaking, an unsponsored TLD operates under policies established by the global Internet community directly through the ICANN process, while a sponsored TLD is a specialized TLD that has a sponsor representing the narrower community that is most affected by the TLD. The sponsor thus carries out delegated policy-formulation responsibilities over many matters concerning the TLD.8

A Sponsor is an organization to which is delegated some defined ongoing policy-formulation authority regarding the manner in which a particular sponsored TLD is operated. The sponsored TLD has a Charter, which defines the purpose for which the sponsored TLD has been created and will be operated. The Sponsor is responsible for developing policies on the delegated topics so that the TLD is operated for the benefit of a defined group of stakeholders, known as the Sponsored TLD Community, that are most directly interested in the operation of the TLD. The Sponsor also is responsible for selecting the registry operator and to varying degrees for establishing the roles played by registrars and their relationship with the registry operator. The Sponsor must exercise its delegated authority according to fairness standards and in a manner that is representative of the Sponsored TLD Community.9

Country Code Top Level Domains (ccTLD)

TLDs with two letters (such as .in, .de, .mx, and .jp) have been established for over 250 countries and external territories and are referred to as "country- code" TLDs or "ccTLDs". They are delegated to designated managers, who operate the ccTLDs according to local policies that are adapted to best meet

7 http://archive.icann.org/en/tlds/ accessed on 10th July 2014 at 11:00 AM. 8 Ibid. 9 Ibid.

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the economic, cultural, linguistic, and legal circumstances of the country or territory involved.10 For example in http://www.tourism.gov.in11 the ―.in‖ signifies that it is a ccTLD similarly in https://www.gov.uk12 the ―.uk‖ signifies that it is a ccTLD. Almost every country has their ccTLD, for example, ―.ae‖ for United Arab Emirates, ―.at‖ for Austria, ―.mm‖ for Myanmar, ―.zw‖ for Zimbabwe and so on.13

Trademark is part and parcel of a competitive and fast growing, market economy because of the inherent need of merchants to differentiate their goods and services from those of other merchants.14

CYBER SQUATTING

With the advancement in new technologies law always lags behind in legal theory and sophistication. Last year India moved ahead of Japan to become the world‘s third largest user of Internet after China and United States. India has nearly 74 million internet user which is 31 per cent more than March 2012.15 The registration of domain name is not technical and difficult and it is based on first come first serve. Because of such policy of domain name registration, there are always a large number of domain names which are actually or potentially associated with some or the other trademarks. This policy had led to reserving of many well-known trade names, brand names, company names, big personality names, etc. by individuals/corporations who does not have any genuine interest in those acquired domain names, with the view of trafficking/doing business on the said domain name for offering the domain

10 Ibid. 11Tourism website of Government of India. 12United kingdom Government‘s website. 13 http://www.domainsherpa.com/country-code-top-level-domains ,last accessed on 9th July 2014 at 10:00PM. 14 Andre Brunel and May Liang, ―Trademark Troubles with Internet Domain Names and Commercial Online Service Screen Names: Road running Right Into the Frying Pan‖, International Journal of Law and Technology, Vol. 5, No. 1, 1996, pp – 1. 15http://www.thehindu.com/sci-tech/technology/internet/india-is-now-worlds-third-largest- internet-user-after-us-china/article5053115.ece, accessed on 10th July 2014 at 4:00 PM

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name to genuine buyers. This fraudulent registration of domain name with the intent to sell the domain name to the lawful owner with the intent of making profit from it is known as ―Cyber squatting‖.16

There are various categories of cyber squatting, these are the following

 The omission of the ―dot‖ in the domain name: wwwexample.com;  A common misspelling of the intended site: exemple.com  A differently phrased domain name: examples.com  A different top-level domain: example.org

Personal Domain Name Disputes and Trademark Law

Different group of people have different interests in use of their names as a domain name in cyber space. For example a politician might have a different interest in using his name as a domain name than that of a celebrity and a celebrity‘s interest might differ from a common individual. But the most prominent category of domain name disputes involving personal names in the cyber field is that of celebrities. Celebrities are those peoples who are famous for their commercial activities in the field of music, movies, sports, television, academics, etc. These people trade on their name to earn commercial benefit, because they have earned a huge recognition for their name with the help of their outstanding performances. A celebrity will not theoretically have a trademark or service mark in her name simply by virtue of being famous.17 According to a general rule, in a domain name dispute Complainant is required to prove the presence of each of the following three elements to obtain the relief it has requested:

16Sreenivasulu N.S., Law Relating to Intellectual Property, Partridge Publishing, India, December 2013 17Chung, Mong Koo v. Individual, WIPO Arbitration and Mediation Centre, Case No.D2005- 1068, 2005, WL 3841676, § 6 (Dec. 21, 2005) (Brown, Arb.).

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(i) the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and (iii) the Disputed Domain Name has been registered and is being used in bad faith.

Company Domain Name Disputes and Trademark Law It is an established fact that earlier domain names were just used to provide an address for computers on internet, but the internet world or say cyber space has developed a lot so the use of domain name. Now domain names are abundantly used for various commercial activities. In contemporary commercial field domain names are associated with particular kind of goods or services. The owners of famous trademarks, such as Tingo, typically register their trademarks as domain names, such as www.tingo.com. Domain names may be valuable corporate assets, as they facilitate communication with a customer base. With the advancement of Internet communication, the domain name has attained as much legal sanctity as a trademark or trade name and, therefore, it is entitled to protection.18 A significant purpose of a domain name is to identify the entity that owns the website.‘ A domain name should not confuse the consumers as to the origins of the services or products defeating the principal of trademark law.

THE UNIFORM DISPUTE RESOLUTION POLICY (UDRP) APPROACH:

The Internet Corporation for Assigned Names and Numbers (ICANN), the body the U.S. government tasked with governing the Internet domain name

18 http://cyberlawsinindia.blogspot.in/2010/02/domain-name-protection-in-india.htm, accessed on 12July 2014 at 2:00 PM

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system, adopted the Uniform Dispute Resolution Policy (UDRP)19 on August 26, 1999, and was implemented on October 24, 1999. The UDRP is designed to solve disputes which usually arise when registrant has registered a domain name identical or confusingly similar to the trademark with no rights or legitimate interests in the name and has registered and used the domain name in bad faith.20 Conflicts between two trademark holders or between a trademark holder and a registrant with rights or legitimate interests are not the concern for UDRP. Particularly, the UDRP does not apply if the registrant has been known by the name, has used it in connection with a bona fide offering of goods or services, or has used it for a legitimate non- commercial purpose.21 Under this procedure, neutral persons selected from panels established for that purpose would decide the dispute. The procedure takes approximately 45 days, costing about $1000 in fees to be paid to the entities providing the neutral persons and is handled mostly online.

CYBER SQUATTING IN INDIA AND ITS APPROACH:

In India, there's no legislation that expressly refers to dispute resolution in reference to cyber squatting or alternative name disputes. The Trade Marks Act, 1999 used for safeguarding use of trademarks in domain names isn't extra- territorial, therefore, it doesn't give adequate protection of domain names. The Supreme Court has taken the view that domain names are to be legally protected to the extent doable beneath the laws relating passing off. In India, this law was evolved by judges and all the High Courts were of unanimous opinion that has been picked out and approved by the Supreme Court.

19 http://www.icann.org/en/dndr/udrp/policy.htm , last accessed on 12-07-14 at 1:00 PM 20Para.4(a) of UDRP. 21Para. 4(c) of UDRP

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Indian Case Laws:

The first case in India with respect to cyber squatting was Yahoo Inc. v. Aakash Arora22, where the defendant initiated a website ‗YahooIndia.com which was nearly identical to the plaintiff‘s renowned website ‗Yahoo!‘ and also provided similar services. The Delhi High Court ruled in favour of the plaintiff and observed, ―it was an effort to trade on the fame of Yahoo!‘s Trade Mark. A domain name registrant does not obtain any legal right to use that particular domain name simply because he has registered the domain name, he could be still liable for Trade Mark infringement.‖

Cyber squatting was captured precisely in Manish Vij v. Indra Chugh23, where the Delhi High Court held that ―an act of obtaining fraudulent registration with an intent to sell the domain name to the lawful owner of the name at a premium‖.

The Satyam Infoway Ltd v. Sifynet Solutions (P) Ltd24 case nailed the Indian domain name scenario way back in 2004 stating that- ―As far as India is concerned, there is no legislation which explicitly refers to dispute resolution in connection with domain names. But although the operation of the Trade Marks Act, 1999 itself is not extra-territorial and may not allow for adequate protection of domain names, this does not mean that domain names are not protected within India.‖

In absence of the proper cyber laws the remedy that prevails is an action for passing off and the infringement of trademarks. Even then the Indian Courts have very active in providing relief in the case of Cyber squatting. Although it is another fact that the due to the increasing number of cases people have started resorting to alternate methods of dispute resolution in this field

22Yahoo Inc. v. Aakash Arora22,1999 IIAD Delhi 229

23Manish Vij v. IndraChugh, AIR 2002 Delhi 243 24Satyam Infoway Ltd v. Sifynet Solutions (P) Ltd, AIR 2004 SC 3540

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specially Uniform Domain Name Dispute Resolution Process (UDNDRP) devised by the International Corporation for Assigned Number and Names (ICANN) and World Intellectual Property Organization (WIPO) Arbitration and Mediation Council, instead of relying on the formal legal procedure.

It must be noted that the Trade and Merchandise Marks Act, 1958 (the ―TM Act‖) and the Information Technology Act, 2000 of India do not deal with domain name disputes. Indian Courts, therefore, apply the rules of ―passing off‖ with respect to such disputes. The action against passing off is based on the principle enunciated in N. R. Dongre v. Whirlpool25 wherein the courts said that ―a man may not sell his own goods under the pretence that they are the goods of another man.‖ Passing off is a species of unfair trade competition by which one person seeks to profit from the reputation of another in a particular trade or business. A passing off action is a direct subject matter of the law of tort or common law of right, i.e. case law. The Act does not define passing off, but only provides the rules of procedure and the remedies available. However the Trademark Act is devoid of any provision within purview of which the offence of Cyber squatting could be brought. Therefore in the absence of any such provision the Indian Courts have been following the principle of passing off and the guidelines and the policies of the WIPO and the UDRP.

Further, in Tata Sons Ltd. v. Monu Kastrui & others26, the defendant had registered a number of domain names that bore the name ‗Tata‘. The Court ruled in favour of the plaintiff and stated that domain names are not only addresses but Trade Marks of companies also, and they are equally important.

25N. R. Dongre v. Whirlpool, 1996 5 SCC 714 26 2001 PTC 432

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INDIAN DOMAIN NAME DISPUTE RESOLUTION POLICY:

―.in‖ is India‘s Top Level Domain (TLD) for India and is administered by IN Registry which is an autonomous body under the National Internet Exchange of India (NIXI). The IN Registry has published the .IN Dispute Resolution Policy (INDRP) which is a mandatory dispute resolution procedure. India does not subscribe to UDRP. However, INDRP has been formulated in lines of UDRP, internationally accepted guidelines, and with the relevant provisions of the Indian IT Act 2000. INDRP sets out the mechanism to resolve a dispute between the Registrant and the Complainant, arising out of the registration and use of the .in Internet Domain Name.

Para 4, INDRP is strikingly similar to Para 4 (a) of the UDRP and constitutes the same essential premises for filing a complaint. INDRP makes it obligatory on the Registrant to submit to arbitration proceeding in an event a complaint is brought against the same with .IN Registry.

The .INDRP is available for complaints regarding any domain names within the ―.in‖ ccTLD and the decision of the same is made binding under the Arbitration and Conciliation Act 1996 of India. The .INDRP has over the years proved to be cost and time efficient in comparison to the court proceedings.

Upon receipt of complaint the .IN Registry shall appoint an Arbitrator out of the list of arbitrators maintained by the Registry. Within 3 days from the receipt of the complaint the Arbitrator shall issue a notice to the Respondent. The Arbitrator shall then conduct the Arbitration Proceedings in accordance with the Arbitration & Conciliation Act 1996 and also in accordance with this Policy and rules provided there under.27

27https://registry.in/.IN%20Domain%20Name%20Dispute%20Resolution%20Policy%20%28I NDRP%29, accessed on 1st July 2014

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Once the arbitrator is appointed the .IN Registry shall notify the parties of the Arbitrator appointed. The Arbitrator shall pass a reasoned award and shall put forward a copy of it immediately to the Complainant, Respondent and the .IN Registry. The award shall be passed within 60 days from the date of commencement of arbitration proceeding. In exceptional circumstances this period may be extended by the Arbitrator maximum for 30 days. However, the Arbitrator shall give the reasons in writing for such extension.28

The remedies available to a Complainant pursuant to any proceeding before an Arbitrator is limited to cancellation of the Registrant's domain name or the transfer of the Registrant's domain name registration to the Complainant. Costs may also be awarded by the Arbitrator.

The INDRP prohibits a Registrant from transferring a disputed domain name registration to another holder in case an Arbitration proceeding is initiated pursuant to this policy, for a period of 15 working days ("working day" means any day other than a Saturday, Sunday or public holiday) after such proceeding is concluded, or, while the dispute is pending, unless the party to whom the domain name registration is being transferred agrees, in writing, to be bound by the decision of the court or arbitrator.29

CONCLUSION:

On account of the issues highlighted and also the varied jurisdictions looked into, the researcher would like to submit a couple of suggestions that in keeping with him are the necessity of the hour with reference to combating this menace. The researcher has devised a four pronged approach which might go a protracted approach in squatting away these squatters.

28https://registry.in/INDRP%20Rules%20of%20Procedure, Para 5 (C),INDRP Rules of Procedure, accessed on 16th July 2014 29https://registry.in/.IN%20Domain%20Name%20Dispute%20Resolution%20Policy%20%28I NDRP%29 accessed on 15th July 2014 at 2:00 PM

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SUGGESTIONS

 Legislation:

The need of the hour is for India to amend its legislature so as to provide for cyber squatting and domain name related disputes in the Information Technology Act 2000 and the Cyber Appellate Tribunal should be used for such offences as well.

 Independent Adjudicatory Body:

The US national arbitration forum and the Czech arbitration court should be taken as examples and a parallel body needs to be set up in India. This body shall only decide cases relating to domain name disputes especially cyber squatting within the domains of India. Such an institution shall prove less time consuming more expedient and more effective as the parties will not have to wait to get onto a docket, and then keep on waiting for the final decree and other paraphernalia associated with due process of law to take place.

 Arbitration:

The researcher would also like to suggest that all arbitration decisions of the WIPO Arbitration and Mediation Centre should be made binding in India under the Arbitration and Conciliation Act 1996. This amendment can be made in the Information Technology Act 2000 stating that WIPO decisions can go to appeal before the High Court just like other arbitration decision considered as decrees under the Arbitration Act and execution petitions can be filed to enforce them accordingly. This way ICAAN and WIPO decisions will ease the overburdened Indian court system.

 INDRP Policy should be extended to all TLDs:

With regard to the .IN registry the INDRP policy is already in place protecting the domain names through the arbitration procedure in force. This can thus be

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extended to all TLDs through the above mentioned amendments reaching a practical working solution. India should use the WIPO and ICANN mechanism of dispute resolution and set a precedent for other countries across the world.

 Registration process of domain name should be made strict

If the registration of domain name made strict this could reduce the cases of cyber squatting. The registration can be made strict through checking the back ground of person instead of simply blindly allocating the domain name.

At the time of the registration of a domain name (personal domain name), the person has to submit government issued identity card.

In case of Company‘s domain name registration, the representative has to submit the copy of tax in return or address proof of the company.

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ONE PERSON COMPANY- “A COMPANY WITH NO ONE TO ACCOMPANY”

Sukanya Lal*

Introduction

Soon the Companies Act 1956 shall be repealed completely and in its place, The Companies Act 2013 shall be put to force. The Companies Act 2013 has been passed by the parliament and assented by the President on 29th August 20131. Its first one hundred eighty three sections have been brought into force2 from 1st April 2014 whereas the other sections shall come into force when notified by the central government. It introduces several new concepts and simplifies many of the requirements by introducing new definitions3. One of the new concepts that the act introduces is that of a ―One Person Company‖.

As law students we all have studied that there are two types of companies. They are a public company and a private company4. For formation of a company a minimum of two members are required for a private company and a minimum of seven members are required for formation of public company5. But now under The Companies Act 2013, one shall be able to form a company with just one member. This form of company that can be formed just with one member shall be regarded as a ―One person Company‖.

The concept was first introduced in the JJ Irani Report in 20056. The report said that provisions regarding the ―Forms of companies‖ that can be created

*Student of 5th Year, B.A.LLB. (Hons.), Faculty of Law, University of Allahabad, Allahabad 1.http://articles.economictimes.indiatimes.com/2013-08-31/news/41642154_1_newcompanies- bill-assent-president-pranab-mukherjee 2 Notification dated 26th March 2014, Ministry of Corporate Affairs. 3. Companies Act, 2013, Key highlights and analysis, PwC India, 30th November 2013, Page no. 6 4 Section 3, The Companies Act 1956. 5 Section 12(1), The Companies Act 1956. 6 Report on Company law by Dr. J.J. Irani, 31st May 2005

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should be in consonance with the demand of time and demand of people. Therefore a new type of company should be introduced on the basis of ―Number of Members‖, which should be regarded as ― ONE PERSON COMPANY‖. The report justified the creation of such companies by stating, ―With increasing use of information technology and computers, emergence of the service sector, it is time that the entrepreneurial capabilities of the people are given an outlet for participation in economic activity. Such economic activity may take place through the creation of an economic person in the form of a company. Yet it would not be reasonable to expect that every entrepreneur who is capable of developing his ideas and participating in the market place should do it through an association of persons. We feel that it is possible for individuals to operate in the economic domain and contribute effectively. To facilitate this, the Committee recommends that the law should recognize the formation of a single person economic entity in the form of ‗One Person Company‘. Such an entity may be provided with a simpler regime through exemptions so that the single entrepreneur is not compelled to fritter away his time, energy and resources on procedural matters.‖7 .The report further suggested the following features of the company- ―a) OPC may be registered as a private Company with one member and may also have at least one director; b) Adequate safeguards in case of death/disability of the sole person should be provided through appointment of another individual as Nominee Director. On the demise of the original director, the nominee director will manage the affairs of the company till the date of transmission of shares to legal heirs of the demised member. c) Letters ‗OPC‘ to be suffixed with the name of One Person Companies to distinguish it from other companies;‖8

7 Ibid, Point No. 6, Page No. 11, 8 Ibid, Point 6.1, Page No. 11-12

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Definition of an OPC

Section 2 (62)9 provides the definition of a One Person Company as follows-

'One Person Company means a company which has only one member'.

Therefore we can say that the concept of an OPC is an exception to the basic principle of a company that is an OPC is a form of company that is formed and exists with just one member.

Further, it is important to note that Section 310 classifies OPC as a Private Company for all the legal purposes with only one member. All the provisions related to the private company are applicable to an OPC, unless otherwise expressly excluded.

Why the need of an OPC was felt ? The reason why the old Companies Act of 1956 had made it compulsory for a Company to have a minimum of two members was so that a distinction could be made between a sole proprietorship and a company. Sole proprietorship as a corporate structure has been categorically excluded from the Act. However, the duplicity of this provision was manifest and rampant. People started taking the advantage of this mere formality by forming a company by adding a nominal member/ director, allotting them one single share (which is the minimum requirement for a director as per the Act), and retaining the rest of the shares to themselves.

We all have heard of Salomon vs Salomon Ltd. Co.‟s 11 case. Salomon was a trader in leather boots. He created a company of his business in which, he alloted one share to his wife, one to his daughter, one share each to his four

9 The Companies Act, 2013 10 ibid 11 [1897] AC 22

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sons and rest all by himself. Because of some financial contingency the company collapsed. At that time the company had assets worth 6000 pounds, the company owed debentures of 7000 pounds to Salomon and further the company owed unsecured debts of 10,000 pounds. The unsecured creditors demanded to lift the corporate veil and let them be paid first. But the courts denied it leaving the unsecured creditors unsatisfied. It was held that once a company has been legally incorporated it must be treated like any other independent person with rights and liabilities appropriate to itself, and the motives of those who promote the company are absolutely irrelevant in discussing what those rights and liabilities are12. Therefore the case of Salomon is a fine example of a company where one person virtually holds all the shares and in consequence can dominate company‘s affairs for personal welfare. Moreover, he uses the company for his personal benefit. Yet the corporate veil is not lifted. This shows that, a person can enjoy the status and benefits of a Company while operating and functioning like a sole proprietary concern for all practical purposes. Hence, to make things clearer and more logical, an option has been created wherein a person can form a company as a one person entity. Further, the evolution of the one-person company can be found in the desire to combine limited liability (a key feature of a company) with the complete dominion of the sole proprietorship. Usually a sole proprietor, operating a moderate sized business, incorporates a company to which he surrenders his business and assets. In return he takes all the shares except the few necessary to comply with the statutory provisions. The few shares he does not take are either allotted by him to his relatives or employees, in accordance with the requirements of the incorporation statute. Thus, a corporation is created "in legal form". Thus the principal shareholder retains the exclusive control and full dominion over the business and enterprise, and in addition to it he achieves the desired privilege of limited

12 Ibid, Lord Halsbury, pg. 30

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liability13. It is most doubtful whether the concept of corporate enterprise was ever intended or designed to embrace such practices. Nevertheless such practices have become very common and, despite occasional questioning by a court they have generally received judicial sanction. The usual argument advanced by the courts is: Limited liability is a privilege held out by the corporation law of the state; one who organizes a one-man or family corporation, in compliance with the formalities of that law, for the purpose of attaining limited liability in a commercial venture, is merely taking advantage of a privilege conferred by law14. ‗One might well question both the logic and the historical realities in this judicially tailored reasoning. What is far more important, however, is that this and similar reasoning indicates clearly a judicial policy to sponsor the one- man company and the family corporation.‘15 Therefore when such practices have been granted acceptance by courts then why should not they be made a part of law. And the concept of one person company be granted legal recognition. This shall also help the policy makers in bringing two much desired quality in a company, that is, complete dominion over proprietorship and limited liability.

HOW IS AN OPC DIFFERENT FROM SOLE PROPRIETORSHIP

The concept of OPC allows a single person to run a company limited by shares, and Sole proprietorship means an entity where it is run and owned by one individual and where there is no distinction between the owner and the business16. The distinction between both the structures is as follows:

13 Bernard F. Cataldo, Limited liability with One Man Companies and Subsidiary Corporations, Law and Contemporary Problems,http://www.scholarships.law.duke.edu 14 Elenkrieg v. Siebrecht, 238 N. Y. 254, 144 N. E. 519 (1924); Salomon v. Saloman & Co., Ltd. [1897] A. C. 22. See Inland Revenue Commissioners v. Sansom, [i921] 2 K. B. 492, 500, 125 L. T. R. 37. 15 Inland Revenue Commissioners v. Sansom, [1921] 2 K. B. 492, 514, 125 L. T. R. 37 16 http://sarpotdarprachiti.blogspot.in/2014_01_01_archive.html

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 Liability – The basic difference between a sole proprietorship and an OPC is the liability that shall arise on winding up or if any claims arise against the business. OPC like any other company shall be treated as a completely separate entity. The liability of the share holder will be limited to the unpaid subscription money in his name. On the other hand in a sole proprietorship, the person/owner is alone liable for the claims which will be made against the business whether they be more than the actual money he has invested in the business. That is he shall have unlimited liability.

 Tax Bracket - Though the concept of an OPC has been introduced in the Companies Act, 2013, yet this name nowhere exist in the tax laws. Therefore an OPC being a private company for all other purposes17 should be put in the taxation bracket of a private company. According to Income Tax Act ,1961 a private limited company is under the bracket of 30% on total income with an additional surcharge of 5% if the income exceeds 10 million with an addition to 3% of education cess18. Whereas, in case of a sole proprietorship, the income of business and that of proprietor are seen as one. The business does not have as separate PAN. If you have more than one business, incomes of all businesses shall be clubbed together so as to arrive at single figure and then taxes shall be calculated on it. And then Individual tax rates and not the business tax rates are applied. .  Succession – Succession is an important characteristic of any enterprise. Provisions have been made in an OPC for succession by designation of a nominee by the sole

17 Section 3, Companies Act, 2013 18 http://www.madaan.com/taxrates.htm

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member19. This nominee will be a Natural Born citizen of India and who shall resides in India. In the event of death of the sole shareholder of a company, the nominee shall become a member of the company and will be responsible for the running of the company. But in the case of sole proprietorship succession takes place through the execution of a WILL which may or may not be challenged in the court of law.

 Statutory Compliances – A One Person Company has to file annual returns20 etc just like a normal company and would also need to get its accounts audited in the same manner. On the other hand a sole proprietorship would only need to get audited under the provisions of Section 44 AB of the Income Tax Act, 1961 once its turnover crosses the certain threshold21. Requirements to form a One Person Company

For a person to incorporate an OPC he is required to be a natural person (not an artificial person) who is an Indian citizen as well as a resident in India (who has stayed in India for a period not less than 182 days during immediately preceding one year)22. At the same, it shall also be worth mentioning that a person cannot form more than five OPC‘s nor can be a nominee director of more than five OPC‘s at the same time23. The act requires that the memorandum of an OPC to indicate the name of another person, also regarded as a nominee director, who shall, in the event of the subscriber‘s death or his incapacity to contract become the sole member of the company24. This is a necessary requirement to be fulfilled so as to maintain the feature of perpetual succession of a company. It further requires

19 Proviso to Section 3 of the 2013 Act 20 Section 92, Companies Act, 2013 21 http://www.companyregistrationsindia.in/page.php?id=21 22 Rule 2.1 (1) of DRAFT RULES, issued by Ministry of Corporate Affairs, for Discussion on 07.09.2013 23 Ibid, point 2.1 (2) 24 Ibid, at 19

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that the written consent of such Nominee Director should be filled before registrar of companies25.

Further all OPC are required to suffix the term One Person Company to their name26. Moreover, the act classifies an OPC as a Private Company for all other legal purposes with only one member27. This means an OPC is required to fulfill further two characteristics, they are-

1) Have a minimum share capital of Rs 1, 00,000. 2) Restricted rights to transfer share.

Features of ONE PERSON COMPANY

Thus we can conclude that the main features of an OPC are- 1) It is a private company and therefore all requirements of private company are applicable on it till they have been excluded28. 2) It has one member or shareholder29. 3) It should have a minimum share capital of Rs 1,00,00030. 4) The right to transfer share are restricted31. 5) Each OPC shall add the term One Person Company in the end32. 6) Each OPC shall have a Nominee Director who shall become the director on demise of the original director33. 7) It can have one director or more than one director34.

25 Point 2.2(2), of DRAFT RULES, issued by Ministry of Corporate Affairs, for Discussion on 07.09.2013 26 Second Proviso to Section 12 of Companies Act, 2013 27 Section 3(1)(c), The Companies Act, 2013 28 Ibid 29 Section 2(62), Companies Act, 2013 30 Section 3, Companies Act 2013 31 Section 2(68) read with Section 3 of Companies Act, 2013. 32 Section 12(3), Companies Act, 2013 33 Section 3 (1) First Proviso, The Companies Act 2013 34 Section 151 (3), The Companies Act 2013

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Other than these features a company shall have all the other features of a company as it had earlier. That is-

1) It has a separate legal personality. 2) The liability of shareholder director is limited. 3) The company shall have perpetual succession. 4) It can own property on its name. 5) It can sue a person and be sued.

Relaxations given to a One Person Company

 One Person Company has been given the option to dispense with the requirement of holding an Annual General Meeting35.  Provisions relating to minimum board meeting and minimum quorum shall not apply to One person Company having single director. In case of more than one director, it shall conduct at least one board meeting in each half year and time gap between two meetings should be minimum 90 days36.

 Financial Statements needs to be signed only by the director and Annual returns by the Company Secretary, else by the director37.  One person Company have been relaxed from preparing Cash Flow Statements38.  One person Company are required to file Financial Statements and Annual Returns to ROC within 180 days from closure of financial year39. Conversion of an OPC to Private or Public Company An OPC shall cease to be entitled to continue as an OPC40 when-

35 Section 122, The Companies Act 2013 36 Section 173, The Companies Act 2013 37 Section 134(4), The Companies Act 2013 38 Proviso to Section 2 (40), The Companies Act, 2013 39 Section 92, The Companies Act 2013.

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1) The paid up share capital of a One Person Company exceeds Rs 50 Lakh. 2) Average annual turnover exceeds Rs 2 crore.  In such condition an OPC shall be required to convert itself to a private or public company, within a period of 6 months, according to the provisions of Section 18 of the act.  The OPC shall give notice to Registrar through Form No. 2.6 within a period of 30 days of the rule becoming applicable to it. If an OPC contravenes the provision of these rules then OPC shall be punishable with fine of Rs 10,000 and with a further fine which may extend to Rs 1,000 for every day after the first during which such contravention continues.

An OPC can get itself converted to a Public and Private Company by-  Increasing the number of members and directors.  By maintaining the minimum paid up capital as per requirement.  By making compliance with provisions under Section 1841 dealing with conversion. Advantages –

There are several advantages of coming up with the concept of a One Person Company. They are- Firstly, India has a huge unorganized sector specially comprising of artisans, craftsmen, potters, weavers etc. This concept shall help in bringing this unorganized sector of proprietorship into the organised version of a private limited company. Further the organized version of OPC will allow banking facilities to reach to every nook and corner. Moreover, the unlimited liability

40 Point 2.3 of Draft Rules, issued by Ministry of Corporate Affairs, for Discussion on 07.09.2013 41 Section 18 of Companies Act , 2013, Conversion of companies already registered.

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of proprietors shall convert to limited liability. Thereby providing several incentives to entrepreneurs and proprietors42. Secondly, the concept of OPC shall be a big attraction for the foreign investors, as now they would be required to have in confidence just one member rather than a bunch of directors thereby entering into quicker and better deals43. Thirdly, the concept of OPC shall cause various small and medium enterprises, doing business as sole proprietors, to enter into the corporate domain as through it they can limit their liability without losing effective control over their enterprise. Fourthly, as the OPC shall be treated as a private company for all other purposes it shall fall into the tax bracket of private company thereby getting various tax rebates. This shall act as an incentive for sole proprietors.

OPC In Other Countries

The concept of One Person Company is not new. It has been introduced in several countries like USA, Australia, Pakistan, China, Singapore and various European Nations. In US, several states have permited the formation and operation of a Single-Member Limited Liability Company (LLC). The concept was introduced in China in October 2005. There the promoter is both the director and the shareholder. The concept has also been adopted by Pakistan. There for a person to form a single-member company, he has to at the time of incorporation, a nominate atleast two individuals who shall act as nominee director and alternate nominee director.44. In most countries, One Person Company are allowed to have more than one director. To promote the concept several exemptions and reliefs are granted to

42 http://www.tjaindia.com/articles/onepersoncompany.html 43 http://www.companyregistrationsindia.in/page.php?id=21 44http://www.mondaq.com/india/x/278154/Corporate+Commercial+Law/One+Person+Compa ny+A+Concept+For+New+Age+Business+Ownership

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such companies like requirement of holding Annual General Meetings etc., though no leniency is shown towards maintenance of records and.45

Conclusion The concept of OPC in the Companies Bill indeed looks promising. This concept has already been adopted in countries like USA, UK, Singapore, China etc. However, the success of this concept in India could correctly be gauged only after its implementation. An OPC will provide greater flexibility to an individual or a professional to manage his business efficiently and at the same time enjoy the benefits of a company. That is it shall be a unique combination of sole proprietorship and limited liability46. The concept of an OPC is still very new for the Indian entrepreneurs and therefore very revolutionary. Though it will take time for the country to adopt such a new concept and thereby to be incorporated with complete efficiency. But at the same time it will turn out to be a successful business concept as it shall not only reduce the paper work involved in incorporation of a company but shall also reduce the formalities like that of bringing in additional shareholders. If the member is willing to add shareholders, all he needs to do is to modify the 47 Memorandum of Association and file it before Registrar of Companies . The concept of OPC shall help small entrepreneurs to grow in entrepreneurship, be it weaver, traders, artisans, small to mid level entrepreneurs. OPC is a bright future for them to grow and to get a global recognition. Foreign Investors will be dealing with one member to establish a corporate relationship and not with a score of shareholders/directors where there are more chances for chaos, disparity in Ideas,. A foreign company that wishes to establish itself in India through an

45Ibid 46 Vishwanath Kulkarni: One Person Company may soon become reality, Business Line, 15th January, 2014 47 Ibid at 33

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Investment or a merger or a Joint venture will just have to deal with a sole 48 member of an OPC, thereby allowing the venture to start sooner . But at the same time the concept has apparent shortcomings like high cost of compliance, difficulty in raising money, no clarity regarding taxation provisions and no effective checks and balances. Moreover the procedure to convert an OPC to sole proprietorship also remains unclear. Therefore it is difficult to comment on the success of the concept and shall depend on the successive legislations enacted by the government, so as to promote the concept of an OPC.

48 Vatsala Singh, One Person Company: A concept for new age Business Ownership, Singh& Associates(28th November 2013), http://www.ateaugue.lexology.com

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CONFIDENTIALITY VS. DISCLOSURE, A DIFFICULT BALANCING ACT

Piyush Upadhyay*

Swati Misra* In matters of confidentiality, Banking is risky due to the highly sensitive nature of information which is often exchanged, recorded and retained. The purpose of this article is to discuss the clash of confidentiality and disclosure in the banking sector across the globe.

The Black’s Law Dictionary defines confidentiality as secrecy or the state of having the dissemination of certain information restricted. Breach of confidentiality, then, refers, to the violation of this trust that has been placed in another in a fiduciary relationship, in this case bank and their customers.

Breach of confidence is already seen as an independent tort in the United Kingdom, whereas in India there has been a gradual increase in recognizing breach of confidentiality as punishable especially in connection with the Right to Privacy guaranteed under Article 21 of the Constitution of India. The duration of the relationship is not of the essence when it comes to defining a customer of the bank.1

Violation of privacy can take place by sharing personal information with third parties without consent for marketing purposes or without informed consent, not informing the customer about what will be done with the data, collecting more personal data than is necessary, refusal to provide financial records upon request by client, incorrectly recording personal information and loss of a client‘s personal data due to improper security measures.

* Student of IV year, Symbiosis Law School, Pune ** Student of IV year, Symbiosis Law School, Pune 1Taxation Commrs. v. English, Scottish and Australian Bank Ltd., (1920) AC 683

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There have been many instances where such violations have taken place. These raise important questions on the need of privacy protection across the banking and financial sector.

In the U.S., the Bank of America was charged for selling personal information (social security numbers, bank account numbers, etc.) of 35 million customers to marketers and third parties without informing individuals. The Bank settled for $14 million and agreed to change its privacy policies and procedures.

In India, a bank was charged of issuing a duplicate passbook of a joint saving bank account of a husband and wife to an unauthorised person. The bank was held accountable for the disclosed information, and was charged a fine with the instructions to look into the conduct of the officials who were supplying information to unauthorised individual.2

In view of the above, certain statutes have included wordings to reaffirm the oath to secrecy, implicit in the debtor-creditor relationship. Section 44 of the SBI Act 19553, Section 13 of the SBI (Acquisition and Transfer of Undertakings) 1980, Section 29 of the Credit Information Companies Act 2005 and Section 3 of the Public Financial Institutions Act 1983 as well as the recent Code of Bank‘s Commitment to Customers4 mirrors the Banking Code of the UK thereby reaffirming the oath of secrecy.

Scope of the Confidentiality nature of the Contract

To appreciate the confidential nature of the contract between the banker and customer, it is important to recall that it comprises elements of agency. As a general rule, the agent‘s duty of confidentiality is a facet to the principal‘s protection against unwarranted attempts by outsiders to enquire into his

2 Punjab National Bank v. Rupa Mahajan Pahwa 3 which extends to the bank as a whole, its directors, local boards, auditors, advisers, officers or other employers of the State Bank, and creditors are required in addition to affirm an oath of secrecy. 4 Published on January 2014

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affairs. However, certain situations demand the interest of the state being given greater importance than an agent‘s duty of confidentiality.5

This was reiterated by Diplock LJ in Parry Jones v. Law Society6,

―Such a duty of confidence is subject to, and overridden by, the duty to the party to that contract to comply with the law of the land. If it is the duty of such a party to disclose in defined circumstances confidential information, then he must do so, and any express contract to the contrary would be illegal and void.‖

The leading case which defined the scope of bank‘s duty of secrecy is Tournier v. National Provincial and Union Bank of England.7

Bankes LJ stated that the duty of secrecy is not all-embracing and is subject to certain exceptions:8

 Where disclosure is under compulsion of law  Where there is a duty to the public to disclose  Where the interests of the bank require disclosure.  Where the disclosure is made by the express or implied consent of the customer.

The Jack Committee recognised that the principle of confidentiality lay at the heart of the banker-customer relationship and warned of the danger of loss of customer confidence in the banking system if the principle was undermined. It further recommended a statutory codification of the principle which was later rejected by the Government.

However, this view on confidentiality has inspired the formulation of Banking Codes and Ethics around the world.

5 See Ellinger‘s Modern Banking Law 4th Edition. Ch. 5. 6(1969) 1 Ch. 1, 9. 7 (1924) 1 KB 461 8 Barclays Bank plc v. Taylor (1989) 1 WLR 1066, 1074, per Lord Donaldson MR

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The Banking Code in the UK, in an attempt to bolster the duty confidence, in its paragraph 11.1 states,

“We will treat all your personal information as private and confidential (even when you are no longer a customer). We will not reveal your name and address or details about your account to anyone, including other companies in our group, other than in the following four exceptional cases when we are allowed to this by law.”

With information being stored in computer databases which are prone to hacking, the issue of confidentiality has become more important.

The Data Protection Act 1998 gives effect to European Council Directive 95/46 on the protection of individuals with regards to the processing and free movement of such data.9

The common law contractual duty of confidentiality should be distinguished from bank secrecy of the Swiss variety10 which imposes criminal sanctions on unauthorised disclosure of banking information.11 Excessive bank secrecy based on the Swiss model has been identified by international organisations and national governments as the greatest single obstacle to fighting transnational crime.12

The scope of the banker‘s duty is not limited to the ‗actual state of the account (the amount of money in the account) of the customer, but includes ‗any

9 (1995) OJ L281/31 10Article 47 of the Swiss Federal Banking Act of 1934 lays down the professional duty on the bankers to maintain the confidentiality of banking information. 11 See David Chaikin, ‗Policy and Fiscal Effects of Swiss Bank Secrecy‘ (2005) 15 Revenue Law Journal 90, 90–110 12See Staff Report on Tax Haven Banks and US Tax Compliance (2010); Jack A Blum, Michael Levi, R Thomas Naylor and Phil Williams, Financial Havens, Banking Secrecy and Money Laundering (December 998) 17–8

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information derived from the account itself‘ as well as ‗transactions that go through the account‘.13

The disclosure to also ‗the wrong person or at the wrong time, could do the customer harm‘.14

Law of confidentiality however permits disclosure on the ground of public interest.15

The language of the public duty qualification may appear to be narrow, but there is elasticity in the concept of public duty. It is wide enough to permit bankers to act as whistle blowers on their customers in cases of crime and fraud.16

In Initial Services v Putterill, Lord Denning MR expressed the view that disclosure of confidential information was permissible in cases of ‗any misconduct of such a nature that it ought in the public interest to be disclosed to others ... both those actually committed as well as those in contemplation‘.17

Disclosure of confidential information must be to the person who has a ‗proper interest to receive that information‘18, for example, in the case of a crime to the police, or a breach of corporations law to the corporate regulator. In general, the courts have refused to lend the processes of the court to enforce claims of breach of confidence, contractual or equitable, where the balance of public interest is that the confidential information should be disclosed19 or ‗when the consequence of non-disclosure would be to prevent the disclosure

13Tournier‘s Case [1924] 1 KB, 473 (Bankes LJ); 485 (Atkin LJ) 14Jackson v Royal Bank of Scotland plc [2005] 1 WLR 377. 15Toulson and Phipps, above n 35, 49, 70–91; Stanley, above n 48, 53–77. 16See Saul Froomkin, „Secrecy, Confidentiality and Banking‟ in Commonwealth Secretariat, Memoranda and Minutes of the Meeting of Commonwealth Law Ministers and Senior Officials (Commonwealth Secretariat, 1990).Gartside v Outram (1856) 26 LJ Ch 113, 114 17 Initial Services v Putterill [1968] 1 QB 396, 405 18 Allied Mills Industries Pty Ltd v Trade Practices Commission (1980) 55 FLR 125, 166–7 19Francome v Mirror Group Newspapers Ltd [1984] 1 WLR 892

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of criminality which in all the circumstances it would be in the public interest to reveal‘.20

In an international setting this is illustrated by the 1989 decision in Libyan Arab Foreign Bank v Bankers Trust Co.21 The English High Court laid that the banker‘s duty of confidentiality may be relaxed in cases of public duty under foreign law.

Also, there are other mechanisms for obtaining and transmitting confidential banking information to foreign parties22 like the power of Australian courts to assist courts in foreign jurisdictions to take evidence from bankers or obtain bank documents, for example, pursuant to ‗letters rogatory‘, including under the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970.23

Millett J stated that: ‗The duty of confidentialit, is subject to a limiting principle. It is subject to the right, not merely the duty, to disclose information where there is a higher public interest in disclosure than in maintaining confidentiality‟.24

With regards to the bank‘s interests, Atkin LJ in the Tournier‘s case had observed,

―The bank has the right to disclose such information when and to the extent to which it is reasonably necessary for the protection of the bank‘s interests, either as against their customer or as against third parties in respect of transactions of the bank for or with their customer…‖

20 A v Hayden (1984) 156 CLR 532, 544–5 21 Libyan Arab Foreign Bank v Bankers Trust Co [1989] 1 QB 728 22International Tracing of Assets (Sweet & Maxwell, 2002) vol 1 Q1/1–Q1/39. 23 The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970, opened for signature 18 March 1970, 847 UNTS 231 (entered into force on 7 October 1972). The Convention has 58 Contracting States. 24 Price Waterhouse (a firm) v BCCI Holdings (Luxembourg) SA [1992] BCLC 583, 601

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Atkin LJ‘s formulation of this qualification is limited to situations where disclosure is ‗reasonably necessary‟ to protect the bank‘s interests.

The courts have not only permitted disclosure so that banks can defend their interests in suits by third parties, but also enabled them to vindicate their legal rights against third parties.

The ‗interests of the bank‘ qualification does not mean that disclosure may be made whenever the bank considers that it is in its commercial interests to make disclosure.

However, there is still a lack of clarity with regard to the expression ‗interests of the bank‘. This is because there is no reported case where a court has permitted this qualification to be used to justify a bank cooperating with the demands of a foreign investigation.

However, where the services of banks are misused by transnational criminals, there is a powerful policy argument that the banks should be armed with the legal capacity to disclose confidential information to foreign authorities.25

With respect to implied consent, Sunderland v Barclays Bank Ltd.26 states,

―There was an implied consent to disclosure where the conduct of the customer was inconsistent with maintaining the duty of confidentiality.‖ Similar reasoning was applied by the High Court of Australia in Mann v Carnell,27 a case concerning waiver of legal professional privilege.

More problematic has been the question whether banks may supply a reference about its customer to a third party based on an implied consent of the customer.

25 El Jawhary v BCCI [1993] BCLC 396 26 (1938) 5 LDAB 163 27 (1999) 201 CLR 1, 13

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This seems to be resolved in Turner v Royal Bank of Scotland plc.28 Turner‘s Case provides a clear warning to banks that they should not readily assume that customers have consented to disclosure of confidential information, particularly where disclosure of such information may be potentially unfavourable to the customer‘s interests.‖

The Indian Scenario

Section 13 of ―Banking Companies Acquisition and Transfer of Undertakings Act, 1970‖ states,

―Every corresponding new bank shall observe, except as otherwise required by law, the practices and usages customary among bankers, and, in particular, it shall not divulge any information relating to or the affairs of its constituents except in circumstances in which it is, in accordance with law or practices and usages customary among bankers, necessary or appropriate for the corresponding new bank to divulge such information.‖

The duty to maintain secrecy is not limited to only the opening of an account but also encompasses transactions, ATM/debit card details and User ID pin of customers.

The disclosure of such financial confidential matters may harm to customer‘s credit and business; the banker should take care not to disclose the state of his customer‘s account. This obligation on the part of the banker, although recognized in practice, was not legally imposed on him till 192429, which has now added this implied term to the contract between a banker and customer, whenever and however the relationship is continued. This obligation to observe secrecy does not end even with the closing of the customer‘s account, except on reasonable and proper occasions

28 (1999) 2 All ER (Comm) 664 29Tournier‘s case, (1924) 1 KB 461

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The general view previously accepted that the banker would not make himself liable for slander and libel in any case where he gives bonafide answer to such inquiries made by persons really interested, provided he confined his answers to the facts within his knowledge, was modified by the decision in Tourneir v. National Provincial and Union Bank of England. This judgment gave a conclusive and effective stand on the question of limitation, if any, on the banker‘s obligation to maintain secrecy with regards to the customer‘s account.

The Reserve Bank of India has periodically issued guidelines, regulations and circulars which require banks to maintain the confidentiality and privacy of customers. The Master Circular on Customer Service in banks issued in 2009 contains a detailed clause on Customer Confidentiality Obligations. The clause reaffirms the customary banking obligation of secrecy and extends it by forbidding the usage of customer information for ―cross-selling purposes‖. It imposes a restriction on data collection by requiring Banks to ―ensure that information sought from the customer is relevant to the perceived risk, is not intrusive, and is in conformity with the guidelines issued in this regard‖. Similarly, the MasterCircular on Credit Card Operations of banks issued by the RBI in July 2010 contains an elaborate set of provisions on ―Right to Privacy‖ and ―Customer Confidentiality‖ under a section titled ‗Protection of Customer Rights‘. The provisions inter alia, forbid the banks from making unsolicited calls, delivering unsolicited credit cards and from disclosing customer information to any third party without specific consent. In 2006, the Reserve Bank of India along with several banks of the Indian Banks Association (IBA) established a body called the Banking Codes and Standards Board of India (BCSBI) to evolve a set of voluntary norms which banks would enforce on their own. A number of guidelines and notices have been produced by the BCSBI including the ―Code of Bank's Commitment to Customers‖ which most banks in India adhere to. Enforcement is through a

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series of internal grievance redressal mechanisms within each bank including a designated ―Code Compliance Officer‖ and an Ombudsman. The exemption as under Section 8(1)(e) of the RTI Act states that, in cases where a bank is acting in capacity as a trustee, any information conveyed to the bank can be treated as confidential and exempted from disclosure. Section 22 of the RTI Act provides that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 and any other law for the time being in force. The effect of this provision is that the law overrides all provisions contained in the Banking Laws, which cast obligation on banks to maintain secrecy about the affairs of customers. The exemption as under section 8(1)(d) of the Act is available to the bank if the disclosure of information is likely to harm the competitive position of the bank itself30, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information.

When disclosure is justified:

There are certain exceptions to the banker‘s obligation of secrecy. He would be justified in divulging the information in the following cases:

 In cases where the customer has given his banker as a reference, the later will be fully justified in answering all the trade references invited by the customer.  When a customer introduces the proposed guarantor to his bank, it is considered to be sufficient ground to entitle the banker to disclose his customer‘s affairs to the extent to which it may be necessary to ensure that the guarantee is not given in the dark: it is safer to get the express consent of the customer.

30 Public Sector Banks are a ―public authority‖ within the expression ―third party‖ defined under Sec. 2(n) of the RTI Act, 2005

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 Disclosure is justified by order of the Court. His duty to obey the Court‘s order overrides his duty to his customer.  A banker will not be liable if he divulges the state of his customer‘s account when he is under a public duty to disclose.  When the protection of the banker‟s own interests legally requires it.

Banker’s obligation to disclose under certain statutes:

1) Income-Tax, Act 1961 (43 of 1961): Section 131 confers on the respective officers the powers. Section 133(6) further empowers the several officers stated in the sections to require a banker or his officer to furnish such information and statements or documents in relation to such matters as it will be useful to the officer concerned, for or relevant to any proceeding under the Act. 2) Code of Criminal Procedure, 1973 (2 of 1974): Section 94 of the Code of Criminal Procedure, 1973 (2 of 1974) (Cr. P. C). 3) Customs Act, 1962 (52 of 1962): The provisions of the Customs Act, 1962 empower the Police and customs authorities respectively to call any information from any person including a banker. 4) Banker’s Book Evidence Act, 1891 (18 of 1891): Section 4 of the BBE Act, 1891 allows certified copies of the entries to be produced in legal proceedings in which the bank is not a party. 5) Reserve Bank of India Act, 1934 (2 of 1934): Section 45- B of the RBI Act, 1934 empowers RBI to collect credit information from Banking Companies. The RBI may furnish this information to any other Banking Company in accordance with Section 45- D, which provides that the information so furnished shall not disclose the names of the Banking Companies which have submitted the information. 6) Banking Regulation Act, 1949 (10 of 1949): Section 26 requires every Banking Company to submit a return of unclaimed deposits to the Reserve Bank within 30 days of the end of each calendar year. The

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return shall contain all accounts in India which have not been operated upon for 10 years. 7) Foreign Exchange Management Act, 1999 (42 of 1999): Section 11 of the FEMA, 1999 (42 of 1999) empowers the Reserve Bank of India (RBI) to call for any information from any authorizes individual. Section 12 of the Act authorizes the Reserve Bank to inspect the books of accounts of any authorized person. As per Section 2 (c) authorized person was an authorized dealer money changer, off store hacking unit or any other person for the time being in force authorized to deal in foreign exchange are thus covered under this section . 8) Companies Act, 2013: Section 210 and 213 of the Companies Act, 2013 empower the Central Government to appoint inspectors to investigate the affairs of any company. Under Section 217 of the Act it shall be the duty of all officers, employees and agents of the company to produce all books and papers of or relating to the company and give to the inspectors all assistance in connection with the investigation which they are reasonably able to give. 9) Section 12 of the Prevention of Money Laundering Act, 200231, lays down certain obligations on banking companies, financial institutions and intermediaries. This section requires the banking companies, financial institutions and intermediaries to maintain a record of all institutions furnish the information of the transactions to the director and verify the identity of all its clients. 10) Section 29 of the Industrial Development Bank of India Act, 1964, the Development Bank can divulge information relating to or the affairs of, its constituents only in accordance with the law or practice and usage customary among bankers, necessary or appropriate for the Development Bank to divulge such information.

31 India has ratified the UNTOC

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Bank’s duty of Secrecy- Exceptions:

In Shankarlal Agarwalla v. State Bank of India32, the Calcutta High Court33observed that among the duties of the banker towards the customer maybe reckoned the duty of secrecy. Such duty is a legal one arising out of the contract and not merely the moral one. Breach of it, therefore, gives a claim for nominal damages or substantial damages if injury is resulted from the breach.

Defence of Fidelity and Secrecy is not available in cases where public fund is involved.34

Common courtesy

There is a well-recognized practice among bankers themselves, generally described as ―common courtesy‖ whereby a bank, desiring information, enquires information from another bank. Information given in response of such enquires is given confidentially and worded with care, so as to disclose no more than the general position of the customer. Such cases are, it is presumed, supported as permissible by reason of their implied consent of the customer derived from the evidence of the well-known practice among bankers and the circumstances giving rise to the enquiries.

Disclosure of only bare facts:

In case the banker decides to give information regarding the state of his customer‘s accounts, he should first see that that he adheres to facts only as disclosed by the account.

32 AIR 1987 Cal 29 33See Paget‘s Law of Banking (9th Ed. Page 166) 34Kattabomman Transport Corp. Ltd. v. State Bank of TravencoreAIR 1992 Ker 351

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Secondly, this information should be given only to a fellow banker or to a person authorized by the customer to receive such information, in confidence and without prejudice.

In addition to the liability of unjustifiable disclosure of his account, the banker must compensate for the loss which the latter may suffer on account of having relied on the information; provided it is proved that the banker gave the information knowing it to be false, or without having justifiable reason of believing it to be true.

Conclusion

The banker‘s common law contractual duty of confidentiality to clients has been well established for over 86 years. In 1924, in Tournier v National Provincial and Union Bank of England (‗Tournier‘s Case‘) the English Court of Appeal held that there was an implied contractual term that a bank will not disclose information concerning its customers to third persons. Tournier‘s Case has been applied and followed in every common law jurisdiction and is perhaps the most frequently cited judicial decision in banking law.

The primary duty of every banker is to respect the secrecy and confidentiality with respect to the information given by the customer. However, there are certain restricted grounds which empower the bank to breach this duty of confidentiality.

In this article, we have explored how the banking sector of different nations balances confidentiality and disclosure. What we also observed is the similarity across borders in dealing with these restricted exceptions.

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THE RIGHT TO BE FORGOTTEN – EUROPE AND BEYOND

Aprajita Tripathi1 Divya Chaudhary2 Recently, in its historic judgment, the court of justice of European Union, on the safety of individuals with connection to the processing of personal data and on the free movement of such data, ruled that the act of a search engine consisting in finding information published or placed by the third parties on the internet, indexing it automatically, storing it temporarily and finally, making it available to the internet users according to a particular order of preference must be classified as ―processing of data ―and thus in respect of such information, the operator of the search engine must be regarded as the ―controller‖ in respect of that processing. Hence if an information or link related to a particular person is irrelevant, inadequate, excessive or inaccurate the said person can request the data controller to take down that particular information. The above case was filed by a Spanish individual against Google and resulted in Google losing the battle. In the first few days after the ruling, about 100,000 Europeans asked Google to take down links, with about half having criminal convictions and half not.3

I. INTRODUCTION

When it comes to protection of the personal information, Europe has always been more protective of the privacy of its citizens than most of the Asian countries and the United States of America. United States still has no general

1 4th year student, B.A. LL.B (H), Dr. Ram Manohar Lohiya National Law University, Lucknow. 2 4th year student, B.A. LL.B (H), Dr. Ram Manohar Lohiya National Law University, Lucknow. 3 DANNY HAKIM, May 29, 2014, The New York Times, available at: http://www.nytimes.com/2014/05/30/business/international/on-the-internet-the-right-to- forget-vs-the-right-to-know.html?_r=0 (last accessed on 5th September, 2014).

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law to protect the privacy of the people online while most of the European Nations have extensive laws to protect the privacy of its citizens online.4

The court of justice of European Union in the case of Google Spain SL, Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González5 considered the following questions-

(a) Whether the activity of a search engine as a provider of content which consists in finding information published or placed on the internet by the third parties, indexing it mechanically, storing it momentarily and conclusively, making it accessible to internet users according to a particular order of preference must be classified as ―processing of personal data‖?

(b) Whether the operator of the search engine can be regarded as a ―controller‖ of data?

The court answered these questions in affirmative and held that the search engines collect, retrieve record and organize the data already published on the Internet and disclose and make available such data in the form of the search results, thus they come within the meaning of ―controller‖ of such data. Nevertheless, in the context of Internet communications, legal doctrine clearly refers to the fact that protection of the right to privacy is so difficult since it would mean ―a right to have the government stop the third parties from speaking about an individual.6

The judgment has brought the hotly debated ―right to be forgotten‖ to the front. The term ―right to be forgotten‖ has only recently been created. The

4 EUROPE MOVES AHEAD ON PRIVACY, New York Times, February 3, 2013, available at: http://www.nytimes.com/2013/02/04/opinion/europe-moves-ahead-on-privacy- laws.html?_r=0 (Last accessed on 5th September, 2014) 5 Id. 6 EUGENE VOLOKH, ―Freedom of Speech, Information Privacy, and the Troubling Implications of a Right to Stop People From Speaking About You‖, Stanford Law Review, Vol. 52, 2000, at p. 1051.

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judgment is expected to have far reaching consequences. For instance the right to be forgotten could make Facebook and Google, liable for up to two percent of their global income in case they fail to remove photos and content that people post about themselves and later regret, even after the photos have been widely distributed already and are a part of the public domain.7 Google has now the onus of making a difficult balance between the public‘s right to know and the individual‘s right to be forgotten. To implement the decision, Google has created an expert advisory committee that will take a look at the issues and form guidelines for the manner of implementation of the ruling. It remains to be seen how the Advisory committee will deal with the individual‘s request for removing certain information about him, and on what basis Google can deny this right to a particular individual. The ruling did not provide guidance on how affected websites, whose links‘ Google takes down on request from individuals, like those of The Guardian and the BBC could compel search engines to reconsider a decision to remove links to specific articles.8 The European regulators are soon expected to come up with guidelines on how to apply the decision.9

The idea behind the said ruling is to give a right to the individuals to remove links to information about them that is irrelevant or excessive. It is a general rule that the interest of the society prevails over any personal interest of any individual, though the debate between the rights to privacy vis-à-vis the well- being of a state has been grabbing the spotlight like never before. But an interesting criteria for making way for personal information to precede over society‘s right to know is the time scale, The right to be forgotten is based on the autonomy of an individual becoming a right holder in respect of personal information on a time scale; hence the longer the origin of the information

7 JEFFREY ROSEN, ―The Right to be forgotten‖, Stanford Law Review. 8 MARK SCOTT, “Right to be forgotten: Bewildering complexities of removing information that face Google‖, New York Times, July 5 2014. 9 ―Meet on ‗right to be forgotten‖, September 10, 2014, available at: http://www.thehindu.com/todays-paper/tp-opinion/meet-on-right-to-be- forgotten/article6395804.ece (Last accessed on 5th September, 2014).

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goes posterior, the more possible personal interests triumph over public interests.10

In addition, the question remains whether the right to be forgotten is actually‖ privacy‖ right since privacy concerns information that is not publicly known. In contrast, the right to be forgotten would turn public information into private information at a certain time by no longer allowing third persons to access such information.11 The interesting fact here is that the information that the individual is seeking to remove from the internet is already in public domain, hence the whole autonomy and freedom of the Internet is at a risk of censorship.

The said ruling has stirred fears of Internet censorship, suppression of knowledge and the tampering with the history. There exists a very thin line between the information that is truly private and the information that is merely inconvenient. Hence implementing the above right in order to ensure that only information that is private and is no longer serving the purpose for which it was put on the internet, is forgotten, would be a challenge for the search engines and other internet bodies. The enforcement problem is also confronted with the legal question, that should the government ―punish‖ those who use information that people have voluntarily published online. Legally, the time- oriented range of a given consent to publish is at stake.12

In the words of a EU spokesman, ―data is the currency of our age.‖13 In an era when companies are vending data to make fortune, it cannot be denied,

10 ROLF H. WEBER, ―The Right to Be Forgotten More Than a Pandora‘s Box?‖ 2 (2011) JIPITEC 120. 11 See L. GORDON GROVITZ, ―Forget Any Right to Be Forgotten‖, The Wall Street Journal, November 15, 2010, available at: http://online.wsj.com/article/SB10001424052748704658204575610771677242174.html (last accessed on 5th September, 2014). 12 ROLF H. WEBER, ―The Right to Be Forgotten More Than a Pandora‘s Box?‖ 2 (2011) JIPITEC 120. 13 MATT WARMAN, Consumer Technology Editor, available at: http://www.telegraph.co.uk/technology/internet/9069933/EU-fights-fierce-lobbying-to-devise- data-privacy-law.html (last accessed on 5th September, 2014)

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Companies are encashing the private information of the users to sell themselves in the market, the entire internet market is at a risk of losing a customer base if the said ruling is implemented, as customers may no longer want their personal information to be on the internet and thus it would be a challenge for the online marketing companies to sell their products in the absence of the required information about their customer base, like the age group of the customers, their income group, their interests and general purchase pattern.

The court of justice of European Union, gave its judgment, following the directives under 95/46/EC14, which serves the objective of protecting the fundamental rights and freedoms of natural individuals, and in particular their right to privacy with respect to the processing of private data, and of removing impediments to the free flow of such data. Since no rights regarding the processing of natural data are provided to the Indian citizens, they continue to be controlled by the local laws like the Information Technology Act, 2000 and in the wider picture, the article 21 of the constitution of India.

II. RIGHT TO BE FORGOTTEN ENTERS AN EXTENDED JURISDICTION.

The ruling though not binding in Indian jurisdiction will have repercussions in India too. India does not have specific privacy laws; the cases of privacy infringement on the Internet are considered Cybercrime and are covered under Information Technology Act 2000.Also generally, infringement of privacy is covered under the article 2115 and article 19 (1)(a)16 of the constitution of India. The right to privacy is not enumerated as a fundamental right in the constitution. Hence, most of these laws are built on the foundation of various judgments of Supreme Court and various High Courts. In the case of Kharak

14 Official Journal, 281, 23/11/1995 P. 0031 – 005. 15 Article 21, Constitution of India, 1950. 16 Article 19(1)(a), Constitution of India, 1950.

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Singh v State of Uttar Pradesh17 the minority opinion expressed by Justice Subba Rao clearly stated that:

“The right to personal liberty takes in not only a right to be free from restrictions placed on his activities, but also free from intrusions on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty. Every elected country consecrates domestic life; it is expected to give him respite, physical pleasure, peace of mind and safety.”

A pertinent question to be considered at this stage is the need of the ―Right to be forgotten‖. In the words of Canada‘s Privacy Commissioner, Jennifer Stoddard:

“In the age of internet revolution, people who use internet and, young people in particular are perhaps ill-equipped to fully appreciate the consequences of their online behavior and are at risk of having their Internet presence haunt them in their future lives.”18

Thus the above right is an attempt to guarantee the online population a secure Internet presence. The latest figures released by the National Crimes Record Bureau (NCRB) on July 1, 2014 show a shocking rise of 63.7 per cent in cyber offences from 2012 to 2013. During this period, the class "transmission of obscene content in the electronic form" reflects a quantum jump of 104.2 per cent. There were 1,203 cases registered in the category of ―transmission of obscene content in electronic form‖ and 737 people were arrested. "The data

17 Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295. 18 PETER WALDKIRCH, ―France and the Right to forget‖, January 22, 2010, available at: http://www.iposgoode.ca/2010/01/france-and-the-right-to-forget/ (last accessed on 5th September, 2014).

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show cyber crimes anti women have increased sharply,19Thus in most of these cases , the dignity of women is compromised with because of their online presence in a derogatory manner, In such cases , the right to be forgotten can come to the rescue of victims.

Consider the example of online criminal databases in the United States, which regularly and permanently uploaded criminal records of convicted offenders even after their release, which is reachable to all forthcoming employers; 20 due to which they are denied employment in most of the cases, this, indeed defeats the entire objective of rehabilitation. In India the National Crime Records Bureau (national crime records bureau) collects information on crimes and criminals including those operating at national and international levels to assist the investigators and others in linking crimes and their perpetrators21. It also functions as a national storehouse of fingerprints records of convicted persons, this information is available in the public domain, and remains largely accessible, Now a criminal who has served his life sentence wants his data to be removed from the website, then what is the law under which he can demand for his personal information to be removed? For now, none, hence in such cases, the above right is mandated.

Another example can be taken of the Canadian psychotherapist who was permanently banned from the United States after an internet search revealed that he had experimented with LSD in his past; 22 or the cases of ―revenge porn‖ websites, that, in most of the cases lawfully and overtly host deeply private photos or films of persons, often with their private information, for the

19 Available at: http://www.telegraphindia.com/1140803/jsp/7days/18682133.jsp (last accessed on 5th September, 2014), 20 See http://mugshots.com/; and http://www.peoplesearchpro.com/resources/background- check/criminal-records/ (Last accessed on 5th September, 2014). 21 Id. 22 ―LSD as Therapy? Write about It, Get Barred from US‖, April 2007, available at: http://thetyee.ca/News/2007/04/23/Feldmar/ (last accessed on 5th September, 2014).

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precise purpose of causing them deep embarrassment.23 The recourse available to the victims in such cases is generally limited to prosecuting the victim under the existing local laws, but it causes a deep emotional and mental setback to the psyche of the victim, because the pictures or the information have already been in the public domain, thus implementing a right to be forgotten may help the victim in coping, by giving them a guarantee that the information is no longer in the public domain, and thus clears a way for a respectable life.

III. IS THERE A RIGHT TO BE FORGOTTEN IN INDIA?

Indian law is notorious for its lethargic approach towards both freedom of information and privacy on the Internet. The privacy laws in India are mostly governed by the Information Technology Act, and under the purview of article 21 of the Constitution of India. The laws on freedom of information and privacy are mostly vague and broad, and most of these laws are controlled by the rules that are enacted by the Non Legislative bodies that are pursuant to the various sections of the act.

The ―right to be forgotten‖ in India can be found within rule 3(2) of the intermediary guidelines rules, 2011 under Section 79 of the Information Technology Act, 2000 (“IT Act”). The above rules are an attempt to make the intermediaries liable for anything that they put online and which is found to be invasive of somebody‘s privacy. The IT Act defines an intermediary as a person who on behalf of some other person, stores or transmits the data or provides any service with respect to that data. The above definition is wide enough to include the telecom service providers, Internet service providers, and the web hosting service providers. The definition also extends to online

23 ―It‘s nearly impossible to get revenge porn of the internet”, June, 2014, available at: http://www.vox.com/2014/6/25/5841510/its-nearly-impossible-to-get-revenge-porn-off- the-internet (last accessed on 5th September, 2014).

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payment sites, the search engines and online market places and also the cyber cafes.

Section 2(1)(w) of the IT Act defines intermediary as ―intermediary‖, with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online- market places and cyber cafes.

Hence the IT Act has adopted a very wide definition of the term Intermediary and includes under its ambit not only the search engines but any telecom and internet service body that controls the private information of the clients and data users, thus Read with the broad definition of ―affected person‖, the applicable law for takedown of online content is very wide and covers the standard laid down in Costeja case, Now the question that remains to be seen is whether the European Union‘s interpretation of privacy and the Right to be forgotten can exclusively be covered under the existing legal and constitutional framework in India.

The Indian law provides great immunity to the intermediaries. Section 79 of the IT Act, specifically excludes the intermediaries from any liability, for any information, data or communication link made available by him, however this is subject to the following exceptions-

 When the intermediary has contrived or aided in the commission of the unlawful act.  When, upon receiving the actual knowledge of the crime, or on being notified the intermediary fails to remove the information or access to the information without destroying the evidence.

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Although the intermediaries are given immunity under section 79, they can be made liable under section 72 A for disclosure of any personal information, where disclosures are made without the consent of the victim, or with an intention to cause any harmful gain, or to cause any harmful loss or in breach of a lawful contract.

The Search engines generally argue that they are not data controllers because there is no intent as such to process the personal data of the parties. Another argument given by the search engines is that they do not verify if the indexed data is personal data or not, that when the original publisher removes the personal data, the search engines also remove the data, that the search engines only play a secondary/ accessory role in disseminating the personal information of the individuals. It is often argued that the role of the search engines should be looked upon as that of an intermediary mere transferring the data.24 The Court of European Union has extensively dealt with these arguments and came to the conclusion that since search engines have a discretion in placing and refining the data, they can be included under the category of ―data controllers‖ and thus there is no reason why they should be exempted from any liability. The position is same in India under the Information Technology Act, 2000.

IV. CONCLUSION

In the age of internet revolution, today what matters, more than ever, is the consent of the individual. Search Engines and other intermediaries should already start valuing privacy of the individuals. In this connection, Google has already made real gestures this year to spread the idea that the company values privacy. Google has made it a point to alert people of its policy changes. It has come up with ―five guiding principles‖ to show how Google protects the data of the individuals. In a video made by Google showing it‘s concern for the

24 Available at: http://jefausloos.wordpress.com/2013/03/05/google-v-spain-at-the-european- court-of-justice/ (last accessed on 5th September, 2014).

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privacy of the individuals and assuring the online population about the safety of their data, Google features a British narrator who assures "We don't sell user information to other companies."25

Thus it can be concluded that the personal data, when processed must be accompanied by legitimate purposes. Search engine benefactors must obliterate private data once they no longer serve the specified and legitimate purpose they were collected for and they should be capable of justifying retention and the longevity of the cookies deployed at all times. The consent of the users must be taken for all planned cross-relation of the user data and for user profile enhancement exercises. Website checker opt-outs must be appreciated by the search engines and requests from users to update or refresh caches must be complied with immediately, in the interest of the users.

It is the obligation of the search engines to clearly inform the users upfront of all the intended uses of their data and to respect their right to willingly access, examine or correct their private data in accordance with Article 12 of the Data Protection Directive (95/46/EC).26 Viviane Reding, vice president of the European Commission and EU justice commissioner in her speech recently assured that "It is clear that the right to be forgotten cannot amount to a right of the total erasure of history," Reding noted in her Sunday speech "Neither must the right to be forgotten take precedence over freedom of expression or freedom of the media.27

The proposed ruling aims to let the firms keep only the required amount of data with them, with the consent of the users and the providers of the data, and

25 JOHN HENDEL, ―Why Journalists Shouldn't Fear Europe's Right to be Forgotten‖, The Atlantic, available at: http://www.theatlantic.com/technology/archive/2012/01/why-journalists-shouldnt-fear- europes-right-to-be-forgotten/251955/ (last accessed on 5th September, 2014). 26 Available at: http://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2008/wp148_en.pdf (last accessed on 3rd September, 2014). 27 VIVIANE REDING, ―The EU Data Protection Reform 2012: Making Europe the Standard Setter for Modern Data Protection Rules in the Digital Age‖, Innovation Conference Digital, Life, Design, Munich, 22 January 2012.

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to let the people have that information about them back when it no longer serves the required purpose.28

The idea of Privacy must necessarily encompass ―the ability to control and limit interactional, physical, informational and psychological access to the self or one‘s group‖29 that includes an individual‘s discretion to decide with whom or when he wants to share his personal information, how physically an individual is accessible to others, his ability to control social interactions and his right to reveal his personal information to others.30

The right to be forgotten must be complemented with legal instruments to guide individuals and entities on how to apply data protection principles on the basis of the acknowledgement of right holders‘ autonomy. And last but not the least, Together with such guidelines, accountability mechanisms need to be introduced and audit procedures should be established.31

28 MATT WARMAN, Consumer Technology Editor, available at: http://www.telegraph.co.uk/technology/internet/9069933/EU-fights-fierce-lobbying-to-devise- data-privacy-law.html (last accessed on 5th September, 2014) 29 JUDEE K. BURGOON; ROXANNE PARROT; BETH A. LE POIRE; DOUGLAS L. KELLEY; JOSEPH B. WALTHER; DENISE PERRY, ―Maintaining and restoring privacy through communication in different types of relationship‖, Journal of Social and Personal Relationships, Vol. 6, 1989, at p. 132. 30 ULRIKE HUGL, ―Approaching the Value of Privacy: Review of theoretical privacy concepts and aspects of privacy management‖, AMCIS 2010 Proceedings, Paper 248, at p. 4. 31 See also COLIN J. BENNETT & CHARLES D. RAAB, ―The Governance of Privacy. Policy Instruments in Global Perspective‖, Cambridge Mass./London, 2006, at p. 29.

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RULE OF LAW AND THE INDIAN CONSTITUTION

Arunesh Bhardwaj* Anshika Agarwal** Introduction

“It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

—Preamble to the Universal Declaration of Human Rights (1948)

The word ‗Rule of Law‘ in its verbatim can be said to mean that something that is ruled by law. The governing force, the governing power is law and legal principles not an individual. Be it a legal person or a natural person, none of them can be said to be above the law. The one force that is above everything is law. This is the crux that can be understood by the simple interpretation of rule of law.

It is said that the concept of rule of law is an age-old concept that originated long back. The originator of this concept is said to be Edward Coke. The concept has been basically derived or taken out from the French phrase la pricipe de legalite, which means the principle of legality.1 Further, it was A.V. Dicey who was a British Jurist. It is said that the main idea that was the source for propounding this concept was the thought given by Aristotle i.e. ―Law should govern.‖

If we talk about Rule of Law in India, the trace of it can be seen in the Upnishad, which says that Law is the King of Kings. It further says that

*Student, Third Year, Symbiosis Law School, Noida **Student, Third Year, Symbiosis Law School, Noida 1Massey, I.P; Administrative Law, Eastern Book Company, page no: 25

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there is nothing and can be nothing that can be considered above the law or which can supersede the law and legal principles.

In this article, the author has begun with a brief introduction about the topic. First of all the authors have given a description about rule of law, its origin and the source from where it came.

Further the authors have traced the history of Rule of law in various parts of the world. After the history the author has tried to find a link between separation of power and rule of law. Further more, the authors have tried to find the concept of Rule of Law in Indian Constitution. In the end of this Article, the authors have given their own viewpoint hat whether inclusion have Rule of Law in Indian Constitution has been beneficial or there are some loopholes that has to be filled up.

Rule of Law and its History

The concept of Rule of Law is a dynamic concept. It is dynamic in the sense that in the present day there is no legal theory that can be made or proposed without taking help of Rule of Law. It can be said to be the basis of all the concepts. We can say that Rule of Law can be called as the modern day natural law.

If we look at the definition of Rule of law we won‘t be able to find a particular definition. But the word itself clearly depicts what does it mean. If we look at the meaning of Rule of Law in the dictionary of Lexis Nexis we can find it defined as follows

“The expression „rule of law‟ has a number of different meanings. The primary concept is that everything must be done according to law.”2

2 Krishnan, Anandan; Words, Phrases & Maxims, Lexis Nexis, pn: R0446

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As per A.V. Dicey there are three main principles that has to be followed while following the concept of Rule of Law and these three concept are as follows:

a. Absence of Arbitrariness b. Equality before law c. Predominance of legal spirit.

Another scholar named R.K. Belton who has identified five basic realms of the concept of Rule of Law and they are as follows:

a. A government bound by and ruled by law; b. Equality before the law; c. The establishment of law and order d. The efficient and predictable application of justice, and; e. The protection of human rights

Belton also gave one more definition of rule of law, which was on the basis of institutions by which the ends of rule of law are to be achieved and in this he included three aspects and they are as follows:

a. The existence of comprehensive laws or constitution based on popular consent; b. A functioning judicial system c. Established law enforcement agencies with well-trained officers. But the history of Rule of Law can be traced to ages before Dicey and Belton.

The history of Rule of Law goes back to thirteenth century when King John signed Magna Carta in 1215. Later in England, a proper relation between monarch, parliament and the people was missing. The English monarchy was ruling the subjects in an arbitrary manner and believed that they have

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the divine right to rule and are only answerable to the God. It was the jurist Edward Coke, who first of all challenged this believe. Simultaneously, the Parliament of England also started to support Edward. Coke argued on the fact that the Magna Carta, the ―Great Charter‖ that was signed by King John in 1215. It had established the common law as the supreme authority in England, to which even the king was subject. Apart from that it also said that :

“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with the force against him, or send others to do so, except by the lawful judgments of his equals or by the law of land.”

The insertion of this clause in the Magna Carta clearly shows the spirit of rule of law as it tries to establish a rule where no one can rule arbitrarily and also no one can be said to be above law.

In 1628, members of Parliament presented King Charles I with the Petition of Right, which accused the king—among other things—of imprisoning, trying, and executing English subjects without due process of law. The conflict between Parliament and the king ultimately resulted in the English Civil War and the beheading of King Charles in 1649.

In the year 1660, son of King Charles was restored as the king and was given the throne. As the monarchy was restored the struggle that came to a pause after the beheading of King Charles again resumed. In 1688, Prince William was invited to take over the English throne. This was done because he had suspended Parliament and had repealed several important laws without Parliament‘s assent. To do this he landed in England with a huge force and King James fled into exile. This led to the formation of new monarch with King William as its head. In the year 1689, Parliament

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presented the king and the queen with a Bill of Rights and described as ―An Act Declaring the Rights and Liberties of the Subject.‖3 The Bill of Rights also asserted that the Parliament has the ultimate authority to make or repeal laws. It also asserted on certain rights and liberties that has to be conferred on the citizen of England. For e.g. it talked about right to trial by jury, freedom of speech and some other basic rights and liberties.

Then came the British jurist A.V. Dicey who in his book Introduction to the Study of the Law of Constitution defined Rule of law in the following words:

“Rule of law is an absolute supremacy and predominance of regular law as opposed to the influence of arbitrary power.”

He also gave the three principles on which the ‗Rule of Law‘ as well as English Constitution is based and they are:

a. Absence of discretionary power in the hands of the government officials. By this Dicey implies that justice must be done through known principles. Discretion implies absences of rules; hence in every exercise of discretion there is room for arbitrariness. b. No person should be made to suffer in body or deprived of his property except for a breach of law established in the ordinary legal manner before the ordinary courts of the land. It further means that the law passed by the ordinary legislative organs of the state should govern everyone. c. The rights of the people must flow from the customs and traditions of the people recognized by the courts in the administration of justice.4

3 http://lre.ncbar.org/media/3546229/ruleoflawpart2.pdf?keepThis=false 4 Administrative Law, I.P. Massey, Eastern Book Company, page no: 30-31

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If we look at the first principle that has been laid by Dicey, it can be concluded that it recognizes the cardinal principle of a democracy and that is opposing any sort of discretionary and arbitrary power in the hands of any government officials. Further the second principle laid down by Dicey talks about other democratic principle and that is equal subjection of every person before the law of the land making law of the land the ultimate and the utmost authority. The third principle if explained can be said to mean that the fundamental rights that each and every individual of a state possesses must have legal spirit which in simple terms can be said to mean predominance of legal sprit. So the three broad principles of Dicey can be shortened and can be summarized in the following three points:

a. Absence of Arbitrariness b. Equality before Law c. Predominance of Legal Spirit.

Rule of Law & Separation of Power

Separation of power is a concept that is an essential part of rule of law. The first principle of rule of law talks about absence of arbitrariness and separation of power is one such method by which absence of arbitrariness can be assured in the state. But, the question comes what is meant by separation of power. Separation of power means separating the power of different institutions and bodies that work together for the functioning of a state. When a particular body will have powers without any limitations and without any body that can keep a check on them then that particular body, no doubt, is going to exercise its power arbitrarily as the body won‘t be answerable to anyone. Separation of power ensures that every body has a body that can keep an eye on them. That can keep a check on the functioning of the body. Describing the need of separation of power Montesquieu in his book The Spirit of Laws said:

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“There would be an end of everything, were the same man or the same body, whether of nobles or of the people, to exercise those three powers, that of exacting laws, that of executing the public resolutions and of trying to causes of individuals.”5

The Black‘s Law Dictionary defines Separation of power in the following words:

“Separation of power means the division of governmental authority into three branches of government viz., legislative, executive and judiciary, each with specified duties on which neither of the other branches can encroach. It can also be said the doctrine of checks and balances by which the people are protected against tyranny.”6

There are three formulations of structural classification of governmental powers that can help in achieving the motive of separation of power and eventually leading to the execution of theory of rule of law and they are:

a. The same person should not form part of more than one of the three organs of the government. b. One organ of the government should not interfere with any other organ of the government. c. One organ of the government should not exercise the functions assigned to any other organ. If all these three principles are adapted in a state then one can be assured that there is separation of power and the first of the three principles of Dicey is being followed.

If we look at the history of Separation of power it was first of all propounded by Aristotle and the writings of Locke and Montesquieu gave it a base on the basis of which the three organs of the government or state

5 Administrative Law, Thakker, C.K.; Eastern Book Company, p. 31 6 Wharton‘s Law Lexicon, Universal Law Publishing, p. 1577

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is distinguished. The content of this doctrine has been derived from the developments in the British constitutional history of the early eighteenth century. The Bill of Rights ultimately led to the recognition by the King of legislative powers of Parliament, and the judicial powers of court and it also led to limiting the power of King to the execution of the laws that has been passed by the legislative.7

In the modern day world the concept of Separation of power can nowhere be seen in England. The King, an executive head is also a Member of Parliament, thus violating the very first principle of Separation of power. Apart from that the Chancellor is member of all the three organs i.e. executive, judiciary and legislative. In England, the judges of the superior court can be removed on an address from both Houses of Parliament and thus violating the second principle as well. The House of Lords have the function of both judiciary as well as legislative functions. The legislative power and adjudicatory powers are being delegated to executive and thus leaving no scope for separation of power to exist.

In America, the doctrine of Separation of Power is the foundation on which the whole structure of their Constitution is based. Article 1 of the American Constitution vests the legislative powers in the hands of Congress. The executive power has been vested in the hands of President by virtue of Article 2 of the US Constitution. The Supreme Court by virtue of Article 3 exercises all the judicial power. The American Constitution has also not given overriding power of judicial review to the Supreme Court. These facts show that there is existence of separation of power in American Constitution.

7 Massey, I.P; Administrative Law, Eastern Book Company, p: 39

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This was all about separation of power in American and England. In the next section of the article we are going to find out the status and position of doctrine of rule of law in Indian Constitution.

Rule of Law and India

History

Rule of law, as been earlier said, has not any particular definition, as the concept is a dynamic concept. In India the concept of Rule of Law has been enshrined in the preamble of the Constitution but it has evolved slowly and steadily with the help of various judgments and case laws. As the cases demanded the Indian Judiciary, time and again, has defined and accepted the concept of Rule of Law.

First in the case of State of UP v Mohd Nooh8, it was held that

“The Indian Constitution has endowed wide powers to the High Courts and Supreme Court under Article 32 and 226 for the representation of the rule of law.”

Then came the case of Daryao v State of UP9. It was in this case where court said that

“The binding character of judgments pronounced by the courts of competent jurisdiction itself is an essential part of the rule of law. Rule of law is the basis of the administration of justice on which constitution lays emphasis.”

Further in the case of Muna Lal Jain v State of Assam10, the court held that

8 1958 SCR 955 9 AIR 1961 SC 1457 10 AIR 1962 SC 386

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“Executive actions cannot override the provisions of law, such method will destroy the very basis of rule of law.”

Indian judiciary has also tried to define Rule of Law in the case of Bachan Singh v State of Punjab11. In this case court held that

“The Rule of Law has really three basic and fundamental assumptions- one is that law making must be essentially in the hands of a democratically elected legislature; the other is that, even in the hands of democratically elected legislature, there should not be unfettered legislative power, and lastly there must be an independent judiciary to protect the citizen against excesses of executive and legislative power.”

The definition given in the case is in accordance with the definition that has been given by Dicey and it also proposes the three principles that were proposed by Dicey.

Further, in the case of ADM Jabalpur v Shivkant Shukla12, also known as the Habeas Corpus case, the detention orders that were passed during emergency were challenged on the ground that it violates the principle of Rule of Law.

In the case of Keshavanada Bharti v State of Kerala13, it has been held that rule of law is the preacher of basic structure.

So it can be seen that time and again the Indian Judiciary has taken rule of law into account while delivering a judgment and has considered the theory that has been given by Dicey in the judicial pronouncement.

If we look at the Indian Constitution, the three principle of Dicey has been enshrined in it. But there is not any particular provision that says that rule

11 AIR 1982 SC 1325 12 AIR 1976 SC 1207 13 (1973) 4 SCC 225

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of law has to be followed. The concept of Rule of Law is in bits and parts in the Indian Constitution. We are going to take a look on every principle and see in which part of the constitution the principle has taken a part.

Absence of Arbitrariness

The most important aspect of absence of arbitrariness is presence of separation of power. If the Indian Constitution entertains the theory of Separation of Power then it can be said that the first principle is being followed. As per the definition given in Wharton‘s Law Lexicon, the expression arbitrarily means in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle. This definition that has been adopted in the law lexicon was given in the case of Sharma Transport v Government of Andhra Pradesh.14

In India the three organs of the government has been well defined and in part V of the constitution they have been well defined. The three organs of the government have there own functions and they are independent of each other. But when it comes to keeping checks and balances, all these three organs are dependent on each other.

Every organ has the power to keep an eye on the other organ. No one has the ultimate authority. The judiciary who declares the law to be invalid also gives us the option of appeal. The writs that has been granted to every citizen of India ensures that there is no arbitrary action taken on the part of the executives and if taken the rights can be restored by issuing the writs against them. These three bodies ensure with the help of checks and balances that none of them can exercise arbitrary power and the rights don‘t get violated. But, India too has not fully adopted the concept of

14 AIR 2002 SC 322

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Separation of Power. In the case of Ram Jawaya Kapur v State of Punjab15, Supreme Court held that,

“Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the government have been sufficiently differentiated and consequently it can be very well said that our Constitution doesn‟t contemplate assumption by one organ or part of the State of functions that essentially belong to another.”

In the case of Indira Gandhi Nehru v Raj Narain16, it was observed that in Indian Constitution the doctrine of Separation of Power is in a broad sense.

In the case of Somraj v State of Haryana17, it was held that

“State should never act in the arbitrary manner and if it does so it is violating the very basic concept on which the constitution is based i.e. Rule of Law.‖

This all shows that there not any particular authority or institution of state that has the ultimate power and hence there can not be any arbitrary use of power. The checks and balances present in the Constitution shows that there is one thing that empowers others to keep an eye on the other organ. The power f keeping a check that is given to any organ is by virtue of legal law and rules. Which eventually means that it is the law that keeps a check on others and there is no one who can overpower the law or can be said to be above the law. It is the law that is above all and every person of the country is subject to the law of the land.

15 AIR 1955 SC 549 16 AIR 1975 SC 2299 17 1990 (2) SCC 653

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Equality before law

The second principle of Dicey talks about equality before law. Part III of Indian Constitution talks about fundamental rights. In the case of M. Nagaraj v Union of India18, fundamental rights are said to be a limitation on the power of State. The Drafting Committee of our Constitution intended to include Equality before law and Right to Life under a single Article but at the time of second reading it was decided to put these rights under different Article to provide better protection. The Indian Constitution guarantees several rights as the fundamental rights and one of them is Equality before Law. Article 14 of Indian Constitution says:

―Equality before law- The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”19

But, equality before law doesn‘t mean that every law will be universally applicable to every person of the State.20 Equality before law means that those who stand on an equal platform will be treated equally. It means an equal subjection of all individuals to the ordinary law of the land.21 The main aim of rule of law is to establish the supremacy of law. Article 14 i.e. Equality before law ensures that every person of the country is equal when the person comes in the court of law. There is no one that will be given some special treatment. If you have violated the law, you will surely get the punishment that the law of land prescribes. It ensures that every person will have a fair chance in the court of law, as there will be no biasness towards any one. The Article ensures that if any one is not given the equal treatment then the person can approach the court of law and can

18 2006 (8) SCC 212 19 Constitution of India, Article 14 20 Kedar Nath v State of West Bengal AIR 1953 SC 404 21 Commentary on the Constitution of India, D.D. Basu, Vol 2 p 289

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issue a writ against the body and can get the directions from the court, which will eventually lead to the restoration of rights.

In the constitution of India, the second principle has been clearly mentioned and equality is also a part of preamble, which is considered to be the basic structure of the Constitution. Basic structure of the constitution is something that cannot be amended. One can change the words of the structure but cannot take away the very spirit behind the provision and equality before law is one of such provisions.

Predominance of Legal Spirit

It says that the general principles on which the constitution is based must be the result of judicial decisions and it must determine the right of private persons in particular cases that has been brought before the court. It also means that the legal spirit must be dominating while making of a law. Now, the question comes what can be considered as the legal spirit. Legal spirit means that the law must be supreme and it should not violate or harass or curtail any fundamental rights of any individual. In the Indian context, this principle is well established.

Part III of the Indian Constitution talks about the fundamental rights of a person and every citizen. These are the rights that can not be taken away from an individual subject to certain restrictions and regulations. These restrictions and reguations on the basis of which these rights cn be curtailed are also for the benefit of the person and the citizen. Some of the grounds of restriction are, morality, public order and health etc. On these grounds the rights can be curtailed. But in various judicial pronouncment such as in the case of Olga Tellis v Bombay Municipal Corporation22, the Supreme Court clearly said that irresepective of the circumstances and situation, fundamental rights are something that can not be curtailed. In

22 AIR 1986 SC 180

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any and every cases of fundamental rights violation, individual has option of going directly to the Supreme Court or High Court and can file a case for the restoration of the fundamental rights.

Our constitution has provided Article 32 under which any individual can file a case against the State and can restore the rights that has been violated. The Article gives us the option of five kinds of writs that can be issued against a state for restoring the fundamental rights. This will help to attain the legal spirit that has been violated by the state while violating or curtailing the fundamental rights.

Restoration of fundamental rights will again restore the predomination of legal spirit and hence the third principle of Rule of law is also present in the Indian Constitution.

Conclusion

After going through each and every aspect of Dicey's principle with respect to Indian constitution it can be clearly seen that every principle of Divey is being followed in India. Be it absence of arbitrariness, equality before law or predominance of legal spirit. All these three are present in the Indian Constitution by virtue of different Articles.

The presence of Rule of Law in Indian Constitution ensures that there is no arbitrariness and ensures that every citizen has the right and liberty.

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VICTIMS RIGHT TO COMPENSATION

G. Aparajita*

Atul Kumar**

Introduction

One nightfall, a man travelling on horseback towards the sea reached an inn by the roadside. He dismounted and confident in man and night like all riders towards the sea, he tied his horse to a tree beside the door and entered into the inn. At midnight when all were asleep, a thief came and stole the traveller's horse. In the morning the man awoke, and discovered that his horse was stolen. And he grieved for his horse was stolen and that a man had found it in his heart to steal. Then his fellow lodgers came and stood around him and began to talk. And the first man said, "How foolish of you to tie your horse outside the stable." And the second said, "Still more foolish, without even hobbling the horse!" And the third man said, "it is stupid at best to travel to sea on horseback." And the fourth said, "Only the indolent and slow of foot own horse." Then the traveller was much astonished. At last he cried, "My friends, because my horse was stolen you have hastened one and all to tell me my faults and my shortcomings. But strange, not one word of reproach have you uttered about the man who stole my horse1.”

- Khalil Gibran.

The world is full of crime and criminals, tragedy and violence. Crime is a social phenomenon. No society primitive or modern, no country whether under developed or developing or developed is free from its clutches. The by- product of the crime i.e. victim is equally bound to emerge. The focus has mainly and always been on criminal and crime, none on victim. So, the

* Third year student, Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh * Third year student, Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh 1 VICTIMS AND THE LAW : A SOCIO-LEGAL STUDY

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forgotten man in the legal world and society happens to be the "victim" for whose plight remedy we have the whole system.

The Declaration recognized the following rights of victim of crime

The adoption of General assembly of the United Nations, at its 96th plenary on November 29, 1985 of Declaration of basic Principle of Justice for Victim of crime and Abuse of Power hereafter mentioned as ―U.N Declaration, constituted an important recognition of the need to set norms and minimum standards in international law for the protection of victims of crime. The U.N. Declaration recognised four major components of the rights of victims of crime- access to justice and fair treatment2; restitution3, compensation4 and assistance. In the first part of this piece it is proposed to examine how far the prevailing legal framework in India conforms the norm and standards that were sought to be set by the U.N declaration nearly two decades ago.

Who is a VICTIM?

Victimology as an academic term contains two elements:

One is the Latin word, "Victima" which translates into "Victim".

The other is the Greek word "Logos" which means a system of knowledge, the direction of something abstract, the direction of teaching, science and a discipline.

2 Clause 4 and 5 of the U.N Declaration Act,1948 ―4. Victims should be treated with compassion and respect for their dignity. ―5.victims should be informed of their rights in seeking redress through such mechanisms 3 Clause 8 of U.N declaration, restitutions includes, ―the return of property of payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and restoration of rights‖ 4 Clause 12 of the U.N declaration the onus is on the state to ―endeavour to provide financial compensation to both victims who have suffered bodily injury or impairment of physical or mental health as a result of serious crimes as well as the family of those who have died as a result of victimization.

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Although writings about the victim appeared in many early works by such criminologists as Beccaria, Lombroso, Ferri, Garofalo, Sutherland, Hentig, Nagel, Ellenberger, Wolfgang and Schafer, the concept of a science to study victims and the word "Victimology" had its origin with the early writings of Benjamin Mendelsohn5. Then, Prakash Talwar describes victimology as the independent study of the relationships and interactions between offender and victim before, during and after the crime6. The big question here we need to know is who the victims are. The main goal of victimology is always the person of the victim. The concept of victim dates back to ancient cultures and civilizations such as Hebrews. Its original meaning was rooted in the idea of a sacrifice or scape goat. Merriam Webster dictionary defines victim as one that is acted upon and usually adversely affected by a force agent. Oxford dictionary defines the victim as a person or thing injured or destroyed in pursuit of an object, in gratification of a passion etc. or as a result of event or circumstances. "Victim" has been defined under ICC (Inter-national Criminal Court) statute as 'natural persons who have suffered harm as a result of the commission of any crime within the jurisdiction of the ICC. It includes "legal entities that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes and to their historic monuments, hospitals and other places and objects for humanitarian purposes.

Laws relating to Compensation

The provision relating to compensation to the victims of crime by the offender are contained in Section 357 of the Criminal Procedure Code, 1973 and Section 5 of the Probation of Offenders Act, 1959 and some other statues Section 5 of the Probation of Offenders Act empowers a trial court, in its discretion, to order for 'reasonable compensation' to any person for his loss or

5 Albert R. Robert : "Helping Crime Victims", Sage Publication, 1990. 6 ibid

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injury caused to him by the offender who is released under Section 3 or Section 4 of the Act. The power to compensate the victims of crime under Section 357 of the Criminal Procedure Code is not a new remedy provided under Criminal Procedure Code of 1973. Even Sections 545 and 546 of the Criminal Procedure Code, 1998 provided for compensating victims of crime. The Law Commission of India noted in its Forty First Report (1969) our courts did not exercise their statutory powers under this section as freely and liberally as they could be desired. The Commission favoured payment of compensation out of fine imposed on the offender. Accordingly, With a view to give a substantive power to the trial court to this effect, it recommended insertion of a substantive provision for payment of compensation to the victim of crime7.

Under Section 357(1) of .the Criminal Procedure Code the court has been empowered to order the payment of compensation to the victim of an offence out of the fine imposed on the accused person while passing an order of sentence of which fine forms a part. Clause (b) of sub-section (1) provides that for compensating the person who has himself suffered injury or loss when compensation is recoverable by a person in a civil court. Clause (c) contains a provision for compensating the heirs and dependents of the person who is victim of a homicide. Sub-section (3) of Section 357 of the Code, which was introduced for the first time in 1973, provides that when a court imposes a sentence of which fine does not form a part, it may direct the accused to pay compensation. Section 357(3) runs: 'When a Court imposes a sentence of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced". It is indeed a step forward in our criminal justice system and reflects the concerns

7 International Research Journal of Social Sciences; Vol 2 ; Restorative Justice and Victims: Right to Compensation;Haveripeth. Prakash D; Karnataka Science College Dharwad

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of the legislature for the victims of crime who suffer loss or injury due to the act, neglect or default of the accused. The object of sub-section (3) of Section 357 is to empower the court to award compensation to the heirs and dependents for the loss resulted from the death of the victim of the crime. The compensation should be payable for any loss or injury, whether physical or pecuniary and the court shall give due regard to the nature of the injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors. Thus, by the new Section, the jurisdiction of the criminal court has been extended to liberally order for compensating a victim of crime for his loss or injury even in those cases where fine dies not form a part of the sentence, which ordinarily lies in the domain of the civil court8.

Victims of rape

The Supreme Court of India observed plight of the rape victims in India and expressed serious concern and suggested that the defects in criminal laws be removed soon. The Court observed as follows in Delhi Domestic Working Women's Forum v. Union of India9.

"The defects in the present system are firstly, complainants are handled roughly and are not giving such attention as is warranted. The police, more often than not. Humiliate the victims. The victims have invariably found rape trials an experience. The experience of giving evidence in Court has been negative and destructive. The victims often say, they considered the ordeal to be even worse than the rape itself. Undoubtedly the Court proceedings added to and prolonged the psychological stress they had to suffer as a result of the rape itself.‖

8 Government of India, ‗Criminal Processor Code, (1773) Section, 357,357(1), 357(3), old subsection 545. (1973), probation offender Act, section 5,3 and 4 (1959), Law Commission of India forty first report (1969) 9 1995 SCC (1) 14

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In view of this, the Court laid down the following guidelines for trial of rape cases: i. The complainants of sexual assaults cases should be provided with legal representation. Such a person must be well acquainted with criminal justice. The victims advocate's role should not be only to explain to her the nature of proceedings, to prepare her for the case and to assist her in the police station and in Court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind consulting or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represents her until the end of the case. ii. Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state at the police station the guidance and support of a lawyer at this stage would be of great help to her. iii. The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and the police report should state that the victims was so informed. iv. A list of advocates willing to act in these cases should be kept at the police station for victims who did not have any particular lawyer in mind, or whose own lawyer was unavailable. v. The advocate shall be appointed by the Court on application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay advocates would be authorized to act at the police station before leave of the Court was sought or obtained. vi. In all rape trials anonymity, (name not to be disclosed), of the victim must be maintained, as far as necessary. vii. It is necessary, having regard to the directive principles contained under Art.38 (1) of the Constitution, to set Criminal Injuries Compensation Board. Rape victims frequently incur substantial loss. Some, for example, are too terrorized to continue in employment. Viii. Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries compensation Board whether or not a conviction has taken place. The Board will take into account

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pain, suffering and shock as well as the loss of earnings due to pregnancy and childbirth if this accrued as result of rape10. The National Commission for Women should be asked to frame schemes for compensation and rehabilitation to ensure justice to victims of such crimes. The Union of India shall then examine and take necessary steps to implement them at the earliest. The Committee feels that the system must focus on justice to victims and has, thus, made the following recommendations, which include the rights of the victim to participate in cases involving serious crimes and to adequate compensation.

VICTIMS OF CUSTODIAL DEATH

Custodial Death –Doom of justice

According to Sir John P.J Dussich ‗Victimology‘ is an academic scientific discipline which studies data that describes phenomenon and casual relationship related to victimization that includes events relating to victim‘s experience. Every citizen of a country is entitled to certain fundamental rights that are guaranteed by their respective constitution. What if these rights are abused by their very protectors? The institutions like Police and the Judiciary. When power of law is abused by enforcing machineries like police it affects the credibility of the rule of law. One of the cruellest forms of human rights abuse is custodial death; there is an infringement of constitutional right to life, therefore there is a need to inherent a hybrid idea of both constitutional law and torts law. In emerging trend state can recover compensation from the officers responsible for such conduct.

After having expanded the right to life to include the right to compensation for a breach of this right to compensation for a breach of this right almost eighty years ago, the Supreme Court has continuously reinforced this jurisprudence.

10 The supreme court of India‘s discussion in the case of Delhi Domestic working women‘s form v. union of India (1994)

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The state has yet to meaningfully formalize a response benefiting its citizens living in a democracy.

One of the most dangerous cocktails in a democracy is when those who are meant to enforce the law take the law into their own hands. Every week in India, several citizens- usually the poor and those from weaker section of society are killed in police custody. According to the Asian centre for Human Rights, as many as 1504 custodial deaths were reported to the National Human Rights Commission from April 2001 to March 201011.most of the deaths occurred within forty eight hours of the victims being taken into police custody. Other reports suggest that there were over a thousand custodial deaths in 2008-09 alone12.

If a person is unlawfully detained by the police, the Constitution allows redressal by the filing of a habeas corpus petition under Article 3213 or 22614. Habeas corpus (in Latin, literally ‗[we command that] you shall have the body‘) is one of the oldest writ remedies, recognised by courts for centuries. Now, if the person has been unlawfully detained, the court can order his release. What if the person cannot be presented to the court because he was died while in police custody?15

11 Asian Centre for Human Rights, ―Torture in India 2011‘, November 2011, http://www.achrweb.org/reports/india/torture2011.pdf last accessed on 22 march 14 at 13:40 12 Pratap Bhanu Mehta. ‗The tortured bill‘ Indian express, 1 September 2010, http://m.indianexpress.com/news/%22the-tortured-bill%22/675580/ last accesed on 22 march 14 at 13:50 13 Under Article 32 of the Constitution, the Supreme Court is empowered to issue the writ of habeas corpus 14 Under Article 226 of the Constitution, High Courts in India are empowered to issue the writ of habeas corpus 15 Mody Zia; 10 judgements that changed India; Replica press; pg. 138

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Over time the Supreme Court evolved the remedy of providing compensation to such people, rather than leaving them empty handed and burdened with the prospect of long drawn out legal proceeding16.

The Indian Constitution does not expressly mandate the granting of compensation for unlawful detention or custodial death17 . However, this right is mentioned in several international human rights instruments, including the international Covenant on Civil and Political Rights, 1966( the ICCPR) , one of the most significant global charters on Human Right. Article 9(5) of the ICCPR states: ‗anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.‘ In 1979, India acceded to the ICCPR but with a ‗reservation‘ over this provision:

With reference to article 9 of the International Covenant on Civil and Political Rights, the government of the Republic of India takes the position that…under the Indian Legal system, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the state18.

From recognising the Right to Compensation to Enforcing It

The Supreme Court recognised the right to seek compensation via a habeas corpus petition for the first time in the Khatri v State of Bihar19 cases, better known as the ‗Bhagalpur Blinding cases. In 1979-80, police officials at Bhagalpur central jail in Bihar blinded thirty one under trial prisoners by pouring acids into their acids. Coming down heavily on the state authorities in a series of cases involving these blinding, the Supreme Court said that it should prepare to ‗forge new tools and devise new remedies‘ for the

16 J.L. Kaul and Anju Vali Tikoo, ‗ revisiting award of compensation for violation of fundamental Human Rights: An Analysis of Indian Supreme Court Decisions‘. Last accessed on 22 march 14 17 Mody Zia; 10 judgements that changed India; Replica press; pg. 139 18 Justice G. Yethirajulu, ‗Article 32 and the Remedy of compensation‘, (2004) SCC 49 19AIR 1981 SC 1068

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meaningful enforcement of the right to Life. The Court conceptualized a grant monetary compensation for infringement of the right to life under the constitution.

It took another equally disturbing scenario to prompt the Supreme Court to award compensation for the violation of fundamental right for the first time in Rudul Sah v. State of Bihar20 . In 1968, Rudul Sah was acquitted of a murder charge by a criminal court in Muzaffarpur, Bihar, yet he languished in jail for 14 years after that. In 1982, he filed a habeas corpus petition in the Supreme Court seeking his release from unlawful custody. He was finally released after he filed the writ but before the date of Supreme Court hearing. Though Sah was released, the court continued to hear the matter and demanded an explanation for his prolonged incarceration. Bihar police offered flimsy grounds (principally, that the petitioner was of unsound mind) for keeping Sah in jail.

A refusal to grant Sah compensation would have been be a grave injustice, tantamount to mere lip service to the right of personal liberty under article 21 of the Constitution. The court recognised this and awarded Sah compensation of 30,000 rs for the illegalities committed by the state.

How the law evolved after Basu Judgement

Gradually, the Supreme Court and High courts expanded the people‘s right to compensation from the state in cases besides of custodial death. In a deplorable incident where a minor committed suicide after being raped in police custody, the Gujarat High court awarded interim compensation of 1.5 lakh rs even though a departmental inquiry was pending21. In another case where a Bangladeshi woman was gang raped by railway employees, the

20 AIR 1983 SC 1086 21 Bachiben Naranbha v. State of Gujarat (2007) 3 GLR 1918

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Supreme Court extended the right to seek compensation to foreign nationals- all persons enjoy the right to life under Article 21.22

D.K BASU V STATE OF WEST BENGAL23

D.K Basu - Executive Chairman of Legal Aid Services, West Bengal - wrote a letter to the Chief Justice of India, saying that torture and deaths in police custody are widespread and efforts are often made by the authorities to hush up the matter. Because of this, custodial crime goes unpunished and therefore flourishes. Some newspaper reports published in the Telegraph, Statesman and Indian Express newspapers were also attached to support the contention. Basu urged the Supreme Court to examine the issue in depth and (i) develop custody jurisprudence and lay down principles for awarding compensation to the victims of police atrocities (ii) formulate means to ensure accountability of those responsible for such occurrences.

The Supreme Court treated the letter as a writ petition. While the writ was under consideration, the Supreme Court received another report about a death in police custody in Uttar Pradesh. This prompted the Court to issue notices to all state governments and the Law Commission of India to submit suggestions on how to combat this all-India problem.

The How and How Much of Compensation: Why We Need a Law

The constitution of India does not grant an enforceable right to compensation; yet, the courts have recognised it and awarded it. This reflects how seriously the judiciary wants to respond to the aspirations of the people and become a sentinel of human rights in India.

The National Commission to review the working of the Constitution, set up by the Atal Behari Government in 2000, recommended an amendment to article

22 Chairman, Railway Board v Chandirima Das( AIR 2000 SC 988) 23 AIR 1997 SC 610

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21 to include ‗an enforceable right to compensation‘ for every person illegality deprived of his right to life or liberty. Amending the right to life may be useful to universalize the right to seek compensation, but the need of the hour also is to enact legislation to set out the parameters on which the compensation should be granted

CONCLUSION

For too long the victim of crime have been forgotten and forsaken lots of the criminal justice system. If the victims come to regard their treatment as unfair, distorting of reality or little concerned with their own rights, feeling and interest or if the decisions are made which are felt to be unsatisfactory, it is possible that this Secondary Victimization‖ by the system may lead to disinterest and future non cooperation by the victim. When the victim chooses not to cooperate with the system, it will collapse. Therefore, there is a need for renewal of emphasis and enhanced sensitivity to the rights of the victim. Victim's right to assistance is now more acceptable in the developed countries. In India, though there are very limited legal provisions for compensation to the victims of crime by the offender, it received a very cold reception at the hands of judiciary. Hence, there is an urgent need for streamlining the system by legitimately including victim's rights and interests in the system. So also, the victim should be made "whole" with monetary recovery and support service

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ROLE OF IPR IN TECHNOLOGY TRANSFER

Gaurang Goel* Akanksha khare** INTRODUCTION

Knowledge is something which cannot be prevented to be used by others it is next to impossible to stop others from using a new knowledge even without the authorization of the creator. If a new technology is valuable, it is therefore likely to be copied or imitated, reducing the potential profits of the original inventor and potentially removing the incentive to engage in innovative activities. Intellectual property rights (IPRs) encourage innovation by granting successful inventors temporary monopoly power over their innovations. The consequent monopoly profits provide the returns on successful investment in research and development, which must be large enough to compensate for the high share of R&D investment that is unsuccessful. Weak IPR protection has actually stimulated R&D activity in many countries by encouraging knowledge spillovers from transnational corporations and other domestic firms. Giving innovators too much protection may also lead to permanent monopoly. Entry by rivals may be impeded, and successful innovators may have reduced incentives for developing and exploiting subsequent innovations. Choice of IPR policy then reflects a balancing of these considerations.1 The awarding of a temporary monopoly, although second best, is intended to restore the incentive to innovate, which in turn should encourage long-run growth and improved product quality. Developed countries, with many potential innovators, have tended to opt for relatively strong IPR systems, with the aim of encouraging inventive and creative activities that are seen as an important source of long-run economic

*Student, University of Petroleum and Energy Studies, Dehradun **Student, University of Petroleum and Energy Studies, Dehradun 1 Amit Singh ―Critical issues relating to IPR in Technology‖ SSRN-id2383027

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growth. With R&D spending concentrated in a handful of the world‘s richest countries, genuinely pioneering activities are limited in most developed and developing countries. The majority of countries in the world have taken a different approach, providing only weak IPR protection, if any, as a way of allowing the rapid diffusion of knowledge through imitation as a significant source of technological development. Providing stronger IPR protection is seen as shifting profits from domestic derivative firms to foreign firms and reducing output in the domestic economy, rather than encouraging domestic pioneering activity. The counter argument is that stronger IPR protection can help return creativity and risk-taking even in developing economies, while weak IPR protection can make developing countries remain dependent on dynamically unskilled firms that rely on counterfeiting and imitation. The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was established during the Uruguay Round (1986-1994) of trade negotiations in order to strengthen the international IPR regime2. The TRIPS Agreement is the first broad and worldwide set of rules covering IPR protection. The TRIPS Agreement specifies minimum standards that should be attained by a designated time. The areas covered are copyrights and related rights, trademarks, geographical indications, industrial designs, patents, the layout designs of integrated circuits and undisclosed information including trade secrets and test data.

RECENT TRENDS IN THE AREA OF TECHNOLOGY TRANSFER This paper would now spread light on how technology is transferred to developing countries and the barriers that affect that transfer. Now it has been seen and analyzed that technology transfer is possible in merely three ways in the modern era which is sufficient for success in the transfer. The three ways are discussed in detail below

2ICTSD Programme on IPRs and Sustainable Development

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 Human Resources Human resources are vital both to the development and to the application of technology certainly, some inventions have been made by individuals with little education but today the majority of inventions are made by those with considerable education in science or technology. The reduction of inventions to marketable application usually also requires skilled entrepreneurs and, depending on the particular field, skilled mechanics, lab technicians, or software writers.3 Many of the same skills are needed for the thoughtful adaption and application of a technology developed elsewhere. Hence, a broad range of scientific and technological skills is absolutely crucial for a nation to participate effectively in the international technological economy.  Barriers to Human Resources Transfer Visa Restrictions - Concerns over terrorism have made it very difficult for students from many nations to study abroad. The limitations include denial of visas, elaborate procedures for obtaining visas, and requirements on universities to track the academic activity of students. In some cases, participants in academic conferences have been denied visas. There have also been government proposals since dropped for restricting foreign student access to certain kinds of research areas and information. The result has been a temporary drop in the number of students seeking to study in the nation. Fortunately this drop is in the process of turning point4.

Brain Drain & Remittances - One of the most obdurate problems in the area is that of the ―brain drain,‖ i.e. the flow of skillful human resources from poor nations to rich nations. Such travel is very explicable for the humans involved, for they can often provide much better for their families with the opportunities they can find in the prosperous nations. The travel, however, debatably wastes educational expenditures in the developing world source nation; for that nation

3 Concepts of Technology and Technology Transfer 4G. Brumfiel & H. Ledford, Safe Passage

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is likely to have invested public funds in educating the person who now brings his or her skill to the developed world. And, in at least some sectors, this possibility of going abroad can enable the pertinent scientific or professional community to demand higher local salaries in the source nation economy.

 Publicly Developed Technology

There are two quite different sources of financing for new technologies: the public sector (including universities) and the private sector. Each funds research in its own sector as well as research in the other sector. The equilibrium varies profoundly from industry to industry, time to time, and nation to nation. In pharmaceuticals, for example, the balance is shaped by the budget of public sector establishments such as the U.S. National Institutes of Health (NIH) and by the enormity of research and clinical testing by the pharmaceutical industry. The early development of computers was subsidized heavily by the government, while modern research and engineering of computers (other than for military applications) is supported largely by the private sector.

 Barriers to Public Developed Technology

Research Tool Patents - Patents sometimes make it difficult for public researchers to carry out their research or to make the products of that research available. Many of the relevant patents are in use in just the developed world, so the issue is less severe for research carried out in the developing world but, in some cases, the patents are in force in the scientifically-leading developing nations or may affect the products of research as well as the process of research. Hence, this is a real issue. It is intensified by the tendency of some publicly-funded research laboratories to avoid use of a patented technology

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without permission, even in nations where no relevant patent is in force.5 This tendency apparently derives from misinterpretation of patent law, concerns of offending the entity which holds patents on the technology in the developed world, and concerns of offending donors.

National Security Issues and Restrictions on exports and Imports - International controls intended to protect national security and to avert the propagation of important technologies may also restrict the flow of technologies with peaceful uses. Few would argue with such limitations with respect to nuclear weapons, chemical warfare or biological warfare technologies. In these areas, there is typically both an international treaty, exemplified by the Nuclear Non-proliferation Treaty, and a group which attempts to control the international transfer of certain important materials, e.g. the Nuclear Suppliers Group in the nuclear power case, which tries, for example, to restrict the shipment of components useful for making nuclear weapons.

 Privately Developed Technology As noted above, outside a few definite sector such as parts of agriculture, the principal means of technology transfer to developing nations is in all probability through commercial transfer from the developed world private sector through licensing or FDI. Involvement in this private-sector network is the usual way for a developing nation firm to achieve its first technology. Depending on the sector and the nation, the firm may go on to achieve a important role in the international production chain, sometimes with its own technology, and may at the end of the day produce its own product for the domestic market for export.

5Intellectual Property and Developing Countries: Freedom to Operate in Agricultural Biotechnology, International Food Policy Research Institute Brief 3 (January 2003).

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ROLE OF IPR IN TECHNOLOGY TRANSFER

Intellectual Property Rights in technology Transfer and Economic Growth

For the purposes of simplicity and ease of understanding we consider that the world is divided into two countries America and India6. The America is developed and pioneering whereas the India is budding and imitating. Research indicates that stronger IPR protection is only found to benefit India when R&D is highly creative, thus resulting in significant cost deductions, and when the India comprises a huge share of the on the whole market of the product. Research also shows that the gains of better innovation through stronger IPR protection become slow and weak as more and more countries toughen their IPR regimes, because the extra market covered and the extra innovation that can be stirred by such protection diminishes. Since IPR holders involve in cartels or domination that disrupts consumer choice, intensification of IPR protection can lead to welfare reductions, particularly in a country that involves in little or no R&D and would otherwise be able to free ride on foreign innovations.

Technology can be transferred between America and India in three ways-  Trade Channel- When technology is transferred through trade, then successful Indian replication results in shifting the competitive gain for the production of imitated products from the America to India. Strengthened IPR protection in India decreases Indian imitation and increases American innovation in the short run, as innovation becomes

6 The use of the terms ―North‖ and ―South‖ is a simplification of reality often used in the literature. Notes that this simplification ignores inequality within the North and the South.

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more profitable. In the long run, though, innovation in the America may fall, because if new products are made for a longer time span in the America, fewer resources are available for innovation there. Stronger IPR protection in India may then reduce worldwide growth. But weak IPR protection in India may have effects besides reducing the motivation for innovation in the America.  Foreign Direct Investment Channel - When foreign direct investment (FDI) is considered as a mode of technology transfer, American innovators may move production to India, reducing competition for resources in America. Stringent IPR protection can then encourage FDI and lead to increased innovation. However, if it is easier to duplicate TNC products produced in India than products produced in America, then production may be shifted back to America, leaving fewer resources available for innovation in India.  Licensing Channel - If technology is transferred through licensing, stringent IPR protection in India results in better innovation in America, and increased licensing to India. Licensing has the advantage to American firms of higher profits due to low production costs in India, but involves other costs in terms of contract negotiations, transferring the required technology and in the rents that the innovator must give to the licensee to discourage imitation. By reducing the risk of imitation, stronger IPR protection in India also reduces the costs of licensing, thus encouraging licensing and freeing up resources in America for innovation. So basically the role of IPR to technology transfer is being studied in a very orderly manner and a hypothetical situation has been taken to clearly show how it is affecting the world.

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IPR and Technology Diffusion

International technology transfer or diffusion refers to the process by which a firm in one country gains access to and employs technology developed in another country. Some transfers occur between partners in agreement voluntary transactions, but many take place through non-market transactions or spillovers. The impact of stringent IPR protection on technology diffusion is indefinite in theory and depends on a country‘s circumstances. On the one hand, stringent IPR protection could restrict the diffusion of technology, with patents restricting others from using proprietary knowledge and the enhanced market power of IPR holders potentially reducing the distribution of knowledge due to lower output and higher prices. On the other hand, IPRs could play a helpful role in knowledge diffusion, since the information available in patent claims is available to other potential inventors. Furthermore, strong IPR protection may encourage technology transfer through increased trade in goods and services, FDI, technology licensing and joint ventures. Despite this theoretical uncertainty, the diffusion of technology from countries at the technological frontier to other countries is considered the main potential benefit of the TRIPS Agreement, particularly for developing countries that tend not to innovate extensively.

IPR and Technological Innovation The impact of IPR protection on domestic innovation is likely to differ with a country‘s level of development and its factor endowments. More generally, we may expect IPRs to impact on domestic innovation differently in countries with significant inventive capacity as divergent to those with few resources available for domestic innovation. The evidence summarized suggests that stringent IPR protection can promote domestic innovation in countries that have significant domestic capacity for innovation, but that it has little impact on innovation in countries with a little innovative capacity. The importance of

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foreign R&D spillovers as a determinant of R&D activity could be even more dangerous in developing countries where much of the R&D activity is of an adaptive nature. A number of studies have empirically confirmed the ability of rather weaker IPRs in stimulating domestic innovative activity in developing countries. Therefore, the evidence on the role of IPRs as a stimulant of innovative activity is quite weak. In fact stronger IPRs may actually affect the innovative activity adversely by chocking the absorption of knowledge spillovers that are important determinants of innovative activity.

IMPLICATIONS OF THE TRIPS REGIME ON TECHNOLOGY TRANSFER

The international atmosphere with respect to intellectual property has altered considerably with the conclusion of the TRIPs Agreement. The TRIPs Agreement accommodates the demands of the industrialized countries for higher international standards of protection by mandating the expansion of patentability to almost all the fields of technology recognized in developed country patent systems, by extending the patent protection for a uniform term of twenty years, and by providing legal appreciation of the patentee‘s exclusive rights to import the patented products7. The patent rights are recognized without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced. All the signatories to the trade negotiations are, therefore, obliged to bring into line their IPR regime and to endow with product patents for pharmaceuticals and chemicals. The coverage of the patent protection has also been expanded by the provision for patents on micro-organisms and protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.

7http://www.unido.org/fileadmin/user_media/Publications/Pub_free/Role_of_intellectual_prop erty_rights_in_technology_transfer_and_economic_growth.pdf

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One of the WTO‘s TRIPS Agreement objectives is that ―the protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology.‖8 Indeed, it is widely accepted – and the WTO website notes that ―developing countries, in particular, see technology transfer as part of the bargain in which they have agreed to protect intellectual property rights.‖9 Perhaps with the understanding that LDCs had potentially the most to lose from TRIPS, article 66.2 created a legal obligation for developed country members to encourage technology transfer to the LDCs. The article reads: ―Developed country members shall provide incentives to enterprises and institutions in their territories for the purpose of promoting and encouraging technology transfer to least developed country members in order to enable them to create a sound and viable technological base.‖ Article 66.2 establishes a positive legal obligation it does not merely make a suggestion.4 The 2001 WTO Doha Decision on Implementation-Related Issues and Concerns the mandatory nature of the obligation, as does the 2001 Declaration on the TRIPS Agreement and Public Health.10 Member Governments are not obligated to carryout technology transfer themselves, but rather, are to provide incentives to their ―enterprises and institutions to encourage technology flows to LDC members. The obligation may be understood to include not only the provision, but also the effective functioning of such incentives. The importance of this commitment was underscored again in 2003 with the creation of the WTO Working Group on Trade and Transfer of Technology, and the TRIPS Council decision requiring developed countries to submit detailed annual reports on their article 66.2 activities. It is in the following ways that the TRIPS agreement has benefitted in Technology transfer to the Developing countries –

8 WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), 1994, Art 7 9 http://www.wto.org/english/tratop_e/trips_e/ techtransfer_e.htm. 10 World Trade Organization. Declaration of the TRIPS Agreement and Public Health.

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Local Technological Capability Building - The intensification and harmonization of IPR regimes worldwide has substantial implications for the process of acquisition of local technological capability by developing countries. The provision of product patents on chemical and pharmaceutical products, for instance, would negatively affect the process of innovative activity of the developing country enterprises in the manufacture of chemicals covered by patents. The growth of new chemical compounds is generally beyond the ability of most developing country enterprises in view of the huge resources involved. Therefore, they focus attention on process innovations for the known chemicals and bulk drugs. This imitative duplication or reverse engineering activity is an important basis of learning in developing countries. Indeed, most industrialized countries of today and newly industrialized countries encouraged local learning through soft patent laws and the absence of product patents in chemicals in the early stages of their development as highlighted earlier. Impact on Global Technological Activity and Availability of Drugs - One of the arguments in favor of a stronger IPR regime is based on the idea that expenditures on R&D were considerably determined by appropriability conditions. Hence, ensuring sufficient appropriability with stronger IPR protection was assumed to be a necessary condition for supporting the pace of innovation in the global economy. The empirical literature, however, does not support this assumption as patent protection was found to be active for only a small proportion of innovations. On the other hand, studies show that spillover effects of R&D activity of other firms to be a lot more important in inducing firms to undertake R&D compared to appropriability. The R&D outcomes of other firms form important inputs for the R&D efforts of these firms. Hence, strengthening of IPRs is likely to affect innovative activity negatively by stifling these spillovers. Therefore, it is by no means clear that tightening of IPRs will increase innovative activity even in the developed world especially for solving the problems and diseases faced by developing countries.

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AREA OF CONCERN IN THE TRIPS TECHNOLOGY TRANSFER AT INTERNATIONAL LEVEL

The recent controversy concerning the HIV AIDS drugs in South Africa, among other factors, has helped to center attention of the international community on the possible unpleasant effects of the execution of TRIPs Agreement on poorer countries. Over the past year a number of international initiatives have been taken to deal with the matter. These include establishment of the Commission on Macroeconomics and Health by the WHO and Commission on IPRs by the British Government. WHO and WTO organized a Workshop on Differential Pricing and Financing of Essential Drugs at Hosbjor, April 2001. The Fourth Ministerial Meeting in Doha in November 2001 adopted a Declaration on TRIPs Agreement and Public Health. UNDP‘s Human Development Report 2001 as well as World Bank‘s Global Economic Prospects 2002 reports focused on the IPRs and their impact for developing countries. However, these initiatives are yet to lead to a concrete outcome addressing the many problems that are raised by the TRIPs Agreement. In what follows the researcher summarizes a few avenues for probable international action.11  Moratoriums on further strengthening of IPR - There is tendency in some developed countries to treat provisions of TRIPs as the bare minimum standards and are continually attempting to evolve stronger norms through unilateral or bilateral approaches. An agreement needs to be built on the need to put a cessation on such approaches for the next couple of decades or so.  Incorporating specific provisions for Transfer of Technology - The TRIPs Agreement pays an insufficient attention to the transfer of technology. Access to technology is increasingly become difficult for

11Nagesh Kumar ― Technology and Economic Development

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developing countries, as observed earlier. There is need for defining conditions, norms and practices for facilitating transfer of technology for production of essential drugs and other critical inputs.  International funding and R&D activities in low income countries - One of the ways of adjusting the low income countries for the adverse effects of strengthened IPR regime is to provide increased technical aid and R&D backing to local enterprises to help them build local capabilities. One possibility in this respect could be that developed countries donate (a substantial proportion of) technology license fees collected from low income countries to a fund created in the respective countries to assist inventive activities of domestic enterprises. Moreover, there is need to tackle the issue of funding R&D on special problems and tropical diseases that concern low income countries.  Differential Pricing - There has been a lot of argument on the possibility of improving the access of poorer countries to patented medicines through differential pricing. There are a number of practical issues concerned with the differential pricing that need to be determined. However, this is certainly one of the options to be explored.

POLICY RESPONSESTO TECHNOLOGY TRANSFER AND TRIPS

In the past, countries have been able to adapt their IPR regimes to assist technological transfer to support their own industrial policy objectives. Both anecdotal evidence and the case study evidence reviewed above, indicates that many present innovators used weak IPR systems in the past, intended to promote technology diffusion through replication, as well as incremental innovation through utility models. While TRIPS removes a great part of this elasticity, it does allow countries to embark on different policies with respect to IPR protection. In this section we discuss policies constant with TRIPS that

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can help countries capitalize on the benefits (or minimize any losses) from TRIPS. The potential policy responses to TRIPS have been considered quite expansively elsewhere, and we draw upon this work to examine policies that can affect the relationship between IPRs and both innovation and technology diffusion. From the researcher‘s summary of the empirical evidence it is clear that policy recommendation should differ according to a country‘s level of development and its level of derivative or innovative capacity. The policy priority in poor countries, with weak institutions and limited R&D capacity for example, should be to improve the investment setting, with moderate trade policies to encourage imports of technology embodied in goods. Such countries should not be obligatory to apply and enforce strong IPR obligations and they should have access to mechanisms that diminish the cost of importing IPR protected goods. It was argued that this could be attained through a direct subsidy or more likely a differential pricing scheme that lowers the expenditure cost of technology intensive imports. For other developing countries, with relatively high levels of innovative potential, the stronger IPR protection required by TRIPS can support domestic firms to switch from replication to innovative activities. Stronger IPR protection in these countries by encouraging technology diffusion through international trade and foreign patenting will also help compensate any unfavorable growth effects from lost imitative opportunities. We begin by looking at policy responses at the national level, and then turn to the role of multilateral organizations.

 Intellectual Property Rights related Policies In order for countries to benefit in terms of growth, TRIPS should encourage domestic innovation and international technology distribution, while reducing the market power of foreign patent holders. While TRIPS sets bare minimum standards for IPR protection, it does leave some room for discretion and this can be used to achieve these goals. TRIPS sets out policies with respect to

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patent fees, the range of patentability and standards for the inventive step, or novelty requirement of patents, that may contribute to the progress of a domestic innovative sector and to the international dissemination of technology.The fees for patent applications and for the renewal of patents and trademarks can be set to uphold both innovation and diffusion. It is possible, for example, to set minimal patent application fees for small and medium- sized enterprises than for large firms, thus promoting innovation by local firms. Patent renewal fees may also go up over time to encourage firms to let patents on mature technologies fall early, thus allowing domestic firms to replicate older technology. Countries could also set high standards for the inventive step in order to avoid routine discoveries from being patented. This could be combined with a system of utility models to encourage local firms to invent around patents and to improve their manufacturing methods. As discussed above, utility models, which award patents to incremental innovations, have been shown to encourage local domestic innovation and these should be considered as a means of developing a domestic innovative sector. Introducing a second tier patent regime will be of little use, however, if there are too few national resources to create the user base. Developing countries should also support the quick publication of patent applications, with full disclosure of the technical processes involved in producing the inventions and how to put them to commercial use. This will maximize the spillovers to local firms, allowing them to build upon the disclosed knowledge and possibly to invent around the patent. This approach will be controlled by the need to attract foreign patenting in the first place. But whatever their post-TRIPS policy choices, developing countries have to be attentive of the likely response from the developed countries that demanded the stronger IPR protection in the first place. Some will argue that any reproduction unauthorized by the IPR holder is piracy and theft. The United States Congress for example has not renounced unilateral trade action and reserves the right of the United States Trade Representative to initiate bilateral negotiations with countries whose

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IPR standards may be TRIPS compatible but nevertheless lower than those of the United States. Indeed, several developing countries have already complained about the continuous use of unilateral pressure to raise IPR protection beyond the minimum levels of TRIPS.

 Competition Policies One potential outcome of TRIPS that is of particular concern to developing countries is that stronger IPR protection strengthens the market power of foreign TNCs, which may lead to compact sales and higher prices and which can bound the extent of technology diffusion. In addition improved market power may limit entry and can lower the rate of innovation. As Researcher‘s summary of the empirical literature indicates, this may be of particular concern in countries that are relatively closed to trade and those with small markets. Moreover, in most developing countries mechanisms aimed at controlling restrictive business practices, or the misuse of IPRs, are either weak or non-existent. Improved market power through stronger IPR protection may provide other forms of anti-competitive behavior, including selling practices and licensing restrictions. These include: (a) the cartelization of possible competitors through cross licensing agreements that fix prices, limit output or divide markets; (b) the use of IPR-based licensing agreements to prohibit competitors in particular markets by raising entry barriers through tie- in sales or restrictions on the use of related technology; (c) the use of IPR protection to predate competitors by intimidating or initiating bad faith litigation and opposition proceedings, which may raise market entry barriers particularly for new and small enterprises. It has been argued elsewhere, however, that IPR protection alone rarely creates such power unless accompanied by limits on competitive entry by other firms. TRIPS article 40 sets out a general right for countries to establish and enforce antimonopoly policies for the purposes of skirmishing abusive technology licensing practices.

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There exist a range of domestic policies that are consistent with TRIPS and which can counterbalance such market power effects. Examples include price controls, compulsory licenses, and parallel imports.

 Complementary Policies Encouraging local technology development can have both a direct effect on output and growth, especially as many of the benefits of R&D are likely to be limited in nature, and an indirect effect by encouraging greater technology diffusion. But while encouraging local technology development should be the main concern for the relatively more advanced developing countries, the benefits of such policies for the least developed countries are likely to be restricted, particularly if they draw scarce resources away from other more imperative activities, such as education and health care. Evidence suggests that the capability of domestic firms to absorb foreign technology does depend upon the existence of an in-house R&D capacity. Technology policies, capital market regulations and tax policies could therefore be attuned to encourage more innovation and in turn technology diffusion. Developing domestic innovative capacity may also lead to increased inflows of FDI, which could further increase technology diffusion. Examples of policies to encourage domestic innovative activities include public diffusions. Investment in education may also encourage domestic innovation and the international diffusion of technology. Although there is limited evidence on the subject, it is to be expected that stringent IPR protection would become more imperative in encouraging innovation in countries with high levels of education and training, chiefly in science and technology. In addition to encouraging innovation, countries that invest in education are likely to encourage greater inflows of FDI in response to a strengthening of IPR protection. Moreover, by enhancing a country‘s absorptive capacity, education is likely to encourage the adaptation of foreign technology. But in order to encourage domestic innovation and technology diffusion, skills other than basic literacy and mathematical skills

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are required. As such there is an argument for encouraging higher education in science and engineering, which will improve specialist skills this could involve encouraging students to undertake training at foreign universities, which in itself could act as a form of technology diffusion. At the same time, such a policy is subject to the risk of a ―brain drain‖, with trained graduates not returning to work in their country of origin.

CONCLUSION While few would consider IPR protection to be a cure for developing countries, views on the importance of IPR protection tend to be in conflict and Polarized. On one side, it is believed that stronger IPR protection can encourage innovation, technology diffusion and enhance growth. On the other it is thought that stronger IPR protection leads to cartelization for patent holders, reduces the incentive to innovate and restricts the diffusion of knowledge. The evidence reviewed and studied here supports neither claim. The impact of IPR protection on growth, innovation and technology dispersion in developing countries is likely to depend upon a number of factors. While stringent IPR protection in the poorest countries is not likely to lead to considerable benefits in terms of innovation or technology diffusion, the managerial cost of developing a patent system and the enforcement of TRIPS, along with the potential abuses of market power in small closed markets suggests that such countries could lose out from TRIPS.

Stronger IPR protection in the poorest countries may also restrain or elongate the imitative stage of development that seems to be crucial in order to develop innovative capacity in many industries. Policies meant to improve the business environment and encouraging imports of technology embodied in goods could potentially diminish such costs, though their impact on other development- related goals needs to be carefully weighed. In other developing countries the possibility for benefits from TRIPS is stronger. Here existing firms engaging

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in imitation could be encouraged through stronger IPR protection to shift resources towards adaptive innovation, while stronger IPR protection is likely to increase trade and FDI flows into countries with existing imitative ability, thus enhancing technology transfer. Policies to enhance the benefits of TRIPS would help develop the domestic innovative sector through encouraging R&D and investment in education, along with policies aimed at opening markets to foreign imports and encouraging inward FDI.

REFERENCES Books Referred:

 Lexis Nexis, V.K Ahuja, ―Law Relating to Intellectual Property Rights‖ ―2nd ed.  Central Law Publications, Dr M.K Bhandari ―Law Relating To Intellectual Property Rights

Sites Referred –  Licensing and Technology Transfer available at: http://www.wipo.int/patent law/en/developments/licensing.html (Last accessed on 5th April, 2014)  United Nations Industrial Development Organization, ―The Role of Intellectual Property Rights In Technology Transfer and Economic Growth‖ available at: http://www.unido.org/fileadmin/user_media/Publications/Pub_free/Role_of_intellect ual_property_rights_in_technology_transfer_and_economic_growth.pdf  Government of India, Business Portal, ―IPR and Innovation‖ available at: http://business.gov.in/innovation/ipr.php  World Trade organization, technology transfer under Trips Agreement available at: http://www.wto.org/english/tratop_e/trips_e/techtransfer_e.htm.  World Trade Organization, ―Doha Declaration on the Trips agreement and public Health‖ available at http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm

Journals Referred –  Rod Falvey ― Role IPR on Technology Transfer and Economic Growth ―  John H Barton ― New Trends in the Area of Technology Transfer‖  Sazali Abdul Wahab ― Concepts of Technology and Technology Transfer‖ Raduan Che Rose  Nagesh Kumar ― IPR technology and economic development‖  Keith E Maskus, ―Intellectual Property Right and Economic Development‖Professor of Economics, University of Colardo, Boulder

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JUDICIAL APPOINTMENTS: A CASE FOR INDEPENDENT JUDICIARY

Aniruddha Kumar* Aastha Tiwari**

“The insulation of the Judiciary from Executive interference in the matter of appointment and transfer of judges is not almost complete. But the question remain, has this almost complete insulation achieved the object for which the constitutional interpretation was strained to an extent never witnesses before or after? In my opinion it has not.”1 -Justice Ruma Pal

Introduction:

It has been more sixty years since the Constitution came into force and we are still struggling to appoint the judges. There has been constant criticism of the present system of appointment of judges in India. Principle of Separation of Power which is considered to be the part of the basic structure of our Constitution, ensure that there should be autonomy of the courts. Keeping this is in mind, the framers of our Constitution considered the Judiciary as the guardian of the sort of equality- political and civil, as well as social.2 Constitutional assembly vested the power of judicial review in the hand of Judiciary which helped the Judiciary to strike down unlawful acts of the parliament in order to keep checks and balances over the Parliament. Appointment of Judges is also one of the ways in which the autonomy of

* National Law University, Delhi ** Symbiosis Law School, Pune 1 Justice Ruma Pal, 5th V M Tarkunde memorial Lecture: An Independent Judiciary delivered in 10 November 2011 in New Delhi. 2 Suhrith Parthasarathy, By Appointment only: Is the Supreme Court Collegium compromising judicial independence ? as visited on 31st August, 2014 at http://caravanmagazine.in/books/appointment-only?page=0,0.

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Judiciary is insured in the Constitution. After a discussion on a great length on the procedure that is required to be there for the appointment of Judges, Dr. B.R. Ambedkar, after reconciling the different opinion put forward by the other members came up with the ―middle course‖ for the appointment of Judges.3

Article 124 and Article 217, which deals with the appointment of Judges to the Supreme Court and High Court was the middle course that was suggested by him. He suggested that the appointment should be made by the president after the consultation with the certain authorities, including the CJI and Chief Justice of the respective High court in appointment to that court. This is the provision that has been interpreted in the Three Judges Cases in order to come with the present method of appointment of Judges.

After the decision given under the Three Judges‘ Cases the, system of appointment of Judges has be constantly in question as the process gives too much power to the CJI in the appointment of Judges. During the times there has been many cases in which this has been questioned on the grounds that this collegium system is under no scrutiny and the whole process is to secretive. The question as to the Transparency and Accountability of this process therefore been asked by the people and hence there is a need to answer this concern. The Law Commission Report has also suggested that there should be a Judicial Appointment Commission and this method of appointment of Judges should be done away with.

Therefore to address these issues we have to look into the present system of appointment and there is also need to look into the proposed model for the appointment. To start with this discussion we also need to look into the importance of this subject.

3 Ibid.

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Importance of the Subject:

Under the plan of our Constitution, extremely critical part has been doled out to the High Courts and the Supreme Court. Separated from the conventional common and criminal cases. As additionally cases under unique laws, these Courts have to arrangement with basic issues of open imperativeness including elucidation of the Constitution, The citizens have likewise a right to approach the courts in case they find that any demonstration of the State to their bias negates the procurements of the statute or the Constitution. The mixed bag of cases which come up before these Courts, the protected issues-some having major political repercussions -• managed by them, the obligation laid upon them to give security against encroachment of the natives rights, require that the Judges who constitute these Courts ought to be of the right caliber , knowledgeable in the Constitution and the laws and known for their autonomy and respectability. For this reason, it gets to be fundamental that most extreme forethought be taken at the time of starting appointment that the right person is appointed as Judges.

It is unnecessary to stress the significance of an Independent Judiciary. The fundamental propose of democracy will be that the mediation of debate both between citizen and citizen as additionally between the citizen and the State should continue on the premise of law and not on incidental contemplations. Citizens must have an affirmation of measure up to treatment under the laws. Such certification can just radiate from a general feeling that the gathering which will be to arbitrate upon the rights and liabilities of gatherings would keep the scales even and be pervaded with a sense of most extreme unbiased attitude. A free judiciary is totally imperative for guaranteeing the standard of law. Experience lets us know that endeavor to undermine the autonomy of the judiciary is gone before by an assault upon the judiciary. Such attacks arc symptomatic of the

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feeling of indignation and chagrin arising out of the inability to control the judiciary.

Wrong appointment of Judges have influenced the picture of the courts. They have additionally undermined the believes of the individuals in the courts. The stake of the group in the conservation of the courts as distributors of equity is enormous. Of the three organs of the State, the Legislature, the Executive and the judiciary, the judiciary is viewed as to be the weakest. It has none, of these the power of the sword nor that of the satchel. It has not, one or the other the money related assets nor can it by itself implement its choices. Indeed for such purposes it has to depend upon the other organs. In spite of that, the courts, particularly the superior courts, have delighted in high regard and instructed extraordinary regard of the individuals. This has been so due to the ethical power they would and due to the part they play as containers of equity in any question between the rich and the poor, the forceful and the feeble, the State and the national, without dread. Any feeling or awareness of the inadequacy of the legal offices to bear the cost of easing for the wrongs and shamefulness, gathered and true, takes individuals' thought to risky channels and drives them to look for response to techniques which will be other than legitimate and smack of a state of wilderness or the principle of tooth and paw. It is, in this way, fundamental to guarantee that nothing is carried out to reduce from the image of the courts and the wide believes of the individuals in the courts by wrong and undesirable appointment of judges.

In order to protect this image of courts we need to ensure that the appointment of judges to the higher judiciary is free from any criticism so that people can continue their faith in Judiciary. To look into this we have study the present system of appointment of judges and its development.

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Historical Background and Present System of Appointment of Judges:

Under the Government of India Act, 1919 and the ensuing Government of India Act, 1935, arrangements to the High Courts were the right of the Crown with no particular procurement for counseling the Chief Justice in the appointment process.4 After far reaching open deliberation, the Constituent Assembly guaranteed that no appointment could be made without counseling the Chief Justice of India. Resulting choices have guaranteed that the Supreme Court is presently basically a definite choice creator in the appointment process.

Until 1991, Judges were named to the High Court on the premise of a board of promoters whose names were prescribed by the Chief Justice of that High Court. These names were sent to the Chief Minister of the specific State and to the Home Ministry at New Delhi.5 In the event that there was a genuine complaint of the official to a specific name, it could be dropped. Throughout the years, there was a lamentable propensity of attempting to guarantee some representation for distinctive religions stations and group. The fourteenth Law Commission unfavorably remarked on this propensity of appointments on a common premise.6 The Law Commission additionally noted that the best conceivable ability had not arrived at the most elevated legal.7

As to the appointment of High Court Judges, there was general understanding that as in the case of Supreme Court Judges, the appointment of Judges of the High Court ought to likewise not be left to the liberated caution of the official government. The Constitutional Adviser in his notice of May 3, 1947 on the Provincial Constitution,' included a general proposal that procurements of the Government of

4Arvind P Datar, Judicial Appointments: The Indian Perspective, , Ed. Santosh Paul, Choosing Hammurabi: Debates on Judicial Appointments, 1st Edn., 2013, Lexis Nexis, p 59-69 5 Ibid. 6 Ibid. 7 Ibid.

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India Act, 1935 in regards to High Courts may be received with vital changes.8 On the particular inquiry of delegate, appointment of High Court Judges, his proposal was that the High Court Judges ought to be selected by the Governors with the endorsement of two-thirds of the parts of the Council of States

1973 to 1983 was a terrible decade that is of raunchy tussle between the decision party and the legal.9 In 1973, three senior-most judges of the Supreme Court were superseded.10 The individual selected as the Chief Justice had held for the Government in three imperative sacred cases. Justice H.R. Khanna ought to have turned into the Chief Justice. Nonetheless, he conveyed a most gutsy judgment amid the crisis. The lion's share had held that an individual who had been kept without trial need not approach either the Supreme Court or the High Court. He could be held in preventive authority and would have no cure whatsoever. Justice H.R.Khanna conveyed a bold disagreeing judgment. He paid the value and was superseded by a junior judge.11

In 1980, there was a vile proposal to exchange judges from one High Court to the next. This was tested in the witness of the Supreme Court .12 The Supreme Court, in an acquired toward oneself blow, held that the notion of the Chief Justice of India could be totally disregarded in the matter of appointment of Supreme Court and the High Court judges. The perspectives in this terrible judgment were overruled in the Supreme Court Advocates-on-Record Association v Union of India13, by a nine judge seat. In spite of the fact that this judgment is likewise very inadmissible, it at any rate brought back a portion of the respect that rightly fit in with the legal. It is currently important

8.ibid. 9 Ibid. 10 Ibid. 11 Ibid. 12 S.P. Gupta Vs Union of India AIR 1982 SC 149 13 1994 SC 268.

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to consider two imperative Supreme Court judgments managing the appointment to the Supreme Court and High Court.

In a decision rendered by a seven-judge Constitution Bench in S.P. Gupta vs. Union of India, the dominant part held that "consultation" does not signify "concurrence" and decided further that the idea of supremacy of the Chief Justice of India is not by any means to be found in the Constitution. It was held that proposal for arrangement to High Court can exude from any of the four protected functionaries specified in Article 217 – and not so much from the Chief Justice of the High Court. This choice had the impact of unsettling the equilibrium which had till then been maintained between the official and legal. The parity tilted for the official. Not just the workplace of the Chief Justice of India got reduced in criticalness, the part of legal all in all in the matter of arrangements got to be less and less. After this judgment, certain arrangements were made by the Executive over-governing the counsel of the Chief Justice of India. Regularly, this state of undertakings created its own particular backfire. In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court Advocates-on-Record Association vs. Union of India overruled the decision in S.P.gupta. The nine-Judge Bench (with lion's share of seven) not just overruled S.P Gupta's case additionally conceived a particular method for appointment of Judges of the Supreme Court in light of a legitimate concern for "securing the respectability and guarding the freedom of the legal." For the same reason, the power of the Chief Justice of India was held to be crucial. It held that the suggestion for that sake ought to be made by the Chief Justice of India in discussion with his two senior-most partners and that such proposal ought to regularly be offered impact to by the official. Showy reasons were are recorded in backing of the recommendation that choice of judges must be in the hands of the legal in this nation and how the frameworks common in different nations are outsider to our sacred framework. One of the judges depended upon Article 50 of the Constitution which discusses detachment of legal and official and barred any official say in

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the matter of appointment to shield the "valued idea of autonomy." It held while it was interested in the official to solicit the Chief Justice from India and his two partners to rethink the matter, on the off chance that they have any protest to the name proposed however in the event that, on such reexamination, the Chief Justice of India and his two associates emphasized the proposal, the official was certain to make the arrangement. Later on In re Special Reference 1 of 1998, the Supreme Court adding to the technique set down in Advocate-on-Record that, Consultation with the Chief Justice of India does not mean counsel just with the Chief Justice. It obliges meeting with a majority of judges. The Chief Justice of India need to structure a collegium of four senior most judges of the Supreme Court. It will have Chief Justice and four Judges of the Supreme Court. The presumption of the collegium will have power in the matter of appointments. It is interested in the Executive to advise the collegium of its complaints. On the other hand, if the Chief Justice and his friendly judges are still of the view that there is no motivation to withdraw their proposal, then that appointment ought to be made as a matter of sound tradition. On the other hand, regardless of the fact that two judges have genuine reservations around a specific arrangement, then it ought not be made. The Supreme Court can likewise counsel different judges of the Supreme Court, judges of the High Court or even the Members of the Bar with respect to a specific election.

This case has changed the system of consultation of Chief Justice to the system of collegium system.

This system of appointment of judges has been in continuous criticism and therefore in order to look in to this we need to discuss the issues that have been raised against the present system.

In recommending the appointment of judges to the SC and High Court by the collegium, the SC did not understand the load it was forcing on the collegium of selecting judges for the SC and high Court and exchanging them starting

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with one high court then onto the next. At any given time there are 2 or 3 opening on the SC, and 200 in the 22 high court and the exchange of various judges to be made. In collegium none of these has a secretariat to shoulder this load not a sagacity agency to make suitable request of the skill, character and uprightness of a proposed.

Lacking this infrastructural backup the collegium resorts to ad hoc informal consultations with other judges in the Supreme Court who are expected to know the merits of a proposed appointee from a high court or occasionally by sounding a member of the Bar. These methods are poor substitute for a full time intensive collection of data about an incumbent, his work standing, merit, integrity and potential which requires to be made considerably in advance for filling in the vacancy. Besides the collegium‘s deliberation are secret, the system is opaque and the choice of a judge is only known when his name is forwarded to the Government for formal appointment.

The collegium has necessarily limited its field of choice to the senior-most judges from the high court for the appointments to the Supreme Court, overlooking the several talented junior judges in the high courts or members of the bar. Limiting the zone of selection to senior-most judges of the high court has induced legitimate expectations in them to be promoted to the supreme court and consequent disappointment when they are overlooked.14

All the problems that has been discussed above has led to search of new alternate solution to collegium system. The proposed solution after the present outbreak of criticism and allegation of corruption in Judiciary has thrown light on this. National Judicial Appointment Commission is one of the proposed solutions as an alternate to present collegium system.

14 T. R. Andhyarujina, Appointment of Judges by Collegium of Judges, Ed. Santosh Paul, Choosing Hammurabi: Debates on Judicial Appointments, 1st Edn., 2013, Lexis Nexis , p 94- 95

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Judicial Appointment Commission: Welcome of Worrisome Change:

After much clash and challenge over the making of higher judicial appointment in the middle of executive and judiciary, the authoritative body at long last go to a step closer to scrap the two-decade old Supreme Court worked "collegium" framework for the appointment of judges of higher judiciary by giving the established legitimacy to National Judicial appointment Commission by embedding‘s Art. 124 in the constitution. Presently this framework is esteemed to be more extensive, transparent, responsible and expansive based instrument for making such appointments.

Perspective has been changed by introduction of National Judicial Appointment Commission Bill, 2014 passed by both the houses) which provides for the constitution of six- member body for the appointments and transfer of higher judiciary. While stating its aim, the union law minster Mr. Ravishankar Prasad said, ―The bill is aimed to ensure that the meritorious people are selected as judges to the higher courts. Also this law does not impact on the independence of judiciary.‖15

Some of the features of the proposed law are given below:

1. Establishment of a commission named National judicial Appointment Commission consist of six members CJI, Union Law and justice Minister, two senior most judges of supreme court and two other eminent person nominated by a committee comprising of PM, CJI and leader of opposition in Lok Sabha from SC/ST/women or minority community.16 2. Reference by central government to NJAC about the vacancies of judges of HCs and SCs.17

15 Amrtya Bag, Higher Judicial Appointments: A New Perspective as visited on 5th September 2014 at http://blog.ipleaders.in/higher-judicial-appointments-a-new-perspective/. 16 Ibid. 17 Ibid.

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3. Recommendation by NJAC for appointment of senior most judge of Supreme Court as CJI.18 4. Recommendation for appointment of any judge of high court to made on the basis of views provided by the concerned CJ with two senior most judges, CM and the Governor of the state.19 5. Appointment basis must not be solely the seniority but it must be the ability and merit also.20 6. Veto power of members: no recommendation if two members do not agree to such recommendation.21 7. President is empowered to direct the NJAC to reconsider the recommendation made by it.22

Now it is very important to see whether the change that has been proposed by the Judicial Appointment is ensuring the independence of judiciary or not. This is important because drafters of our constitution while drafting the constitution wanted to ensure that separation of power should be there. In order to ensure separation of power one has to ensure the autonomy of judiciary.

The proposed bill even though has addressed the issues as to favoritism and influence of politics in appointment of judges, the one thing that is still worrisome is than parliament has been given too much power under the bill. This is with regard to the composition of the JAC. JAC has not been included in the Constitution, but has been left for Parliament to decide by law. This implies that modifying the composition of the JAC would not require a constitutional amendment, but may be altered by a simple majority in Parliament.

18 Ibid. 19 Ibid. 20 Ibid. 21 Ibid. 22 Ibid.

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Therefor even though we are moving toward a better system of appointment which has already been tested in other jurisdictions, we still need to address these issues in order to ensure the autonomy of judiciary and separation of power.

Conclusion:

The debate on the changes that are required in the present process of appointment of Judges is long lasting debate. The arguments from both the sides aim only for providing the autonomy to the judiciary. The faith in judiciary can be only continued if the individual believes that the Judges that are sitting in the Superior court are capable of imparting justice to them. This can be insured by the making the whole process of appointment more transparent than the present one. The Judicial Appointment Commission is a step toward the same. It ensures more accountability and transparency in the appointment of judges. But the issue that still remains is that whether the executive should be given power to the extent that has been provided in the JAC bill, 2014. Because the only reason SC came up with the decision in the second judges‘ case was that they wanted to ensure autonomy of judiciary. Hence, the only concern that is there with regard to the extent of power that is given to Parliament to legislate and make changes in JAC. To deal with this we need to come up with an amendment to the constitution so that, the Parliament power to alter is restricted by the restriction given in Article 368 of the Constitution.

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CLASS ACTIONS UNDER THE COMPANIES ACT 2013: THE EPOCH OF CORPORATE DEMOCRACY IN INDIA

Sanjana Chowdhry* Abhinav Mishra** “Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”1

-Martin Luther King, Jr.

INTRODUCING THE CONCEPT AND HISTORY OF CLASS ACTIONS

In today‘s dramatically altered socio-econo-political scenario where the desideratum to re-instill the confidence of the community in investor- protection is vital, the introduction of the provision for class actions in the Companies Act, 20132 is an audacious step taken by the Indian Parliament to synchronize the corporate landscape in India with the worldwide trend for shareholders to bring class action against companies for compensation claims.

A ‗class action‘ is a concept under which a single lawsuit can determine the rights of multiple persons having identical interest in the alleged wrong.3 This concept is by no means recent and has long been a sentinel of investor protection around the world. It has been used in England since 12th century4

* Student of 4th Year, Rajiv Gandhi National University of Law, Patiala ** Student of 4th Year, Rajiv Gandhi National University of Law, Patiala 1Martin Luther King, Jr., Letter from Birmingham Jail, (April 16, 1963), available at http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html. 2Historic feat: Parliament passes new Companies Bill, Economic Times, August 8, 2013, available at http://articles.economictimes.indiatimes.com/2013-08- 08/news/41202234_1_new-companies-bill-the-bill-corporate-social-responsibility. 3 Merriam Webster‘s Advanced Learners Dictionary 107 (2008) 4Susan T. Spence, Looking Back in a Collective Way: A History of Class Action Law (Aug. 2002), available at http://apps.americanbar.org/buslaw/blt/2002-07-08/spence.html#top; Brown v.Vermuden (1676), 1 Ch. Cas. 272, 22 Eng. Rep. 796 (recognized as the earliest reported class action case in England explicitly holding that the judgment in a class action suit is binding on absentee class members).

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and formally in USA since 18425. In India, too, its importance was highlighted prominently in Newabganj Sugar Mills Co. Ltd. v Union of India6 in 1975, wherein the Supreme Court emphasized on the harms accruing due to an underdeveloped system of class actions. Security frauds by major companies like Satyam Computers7, Magnum Group8 and General Motors India9, recommendation of the J.J Irani Committee10, opinions of scholars, academicians, politicians and bills tabled in the parliament11 have constantly highlighted the urgency for a concrete legislative provision for class action.

Nevertheless, until the addition of Section 24512 in the Companies Act, 2013 there were only a few provisions under the Code of Civil Procedure, 1908, and the Companies Act, 1956, which provided for representative suits. These however, have been largely ineffective in motivating aggrieved persons to pursue class action litigation against companies. The article seeks to evaluate by analysis the suitability and practicality of Section 245 in the Indian scenario by examining its need, prospective benefits, potential drawbacks and

5Debra Lyn Bassett, Just Go Away: Representation, Due Process, and Preclusion in Class Actions, 5 BYU L. REV. 1079, 1082-1084 (2009), available at http://digitalcommons.law.byu.edu/lawreview/vol2009/iss5/1. 6Newabganj Sugar Mills Co. Ltd. v Union of India AIR 1976 SC 1152 (finding that India lags in the regard of class action litigation although the people are poor and the individual claims are trivial). 7Central Bureau of Investigation, The Satyam Scam Case (2009), available at http://cbi.nic.in/fromarchives/satyam/satyam.php. 8Rohit Singh, Fraud Companies: A Tale of Lofty Promises and Vanishing Acts, Hindustan Times, Aug. 19, 2013, at A3, available at http://www.hindustantimes.com/india- news/lucknow/fraud-companies-a-tale-of-lofty-promises-and-vanishing-acts/article1- 1109703.aspx. 9Deepak Kumar Dash, Corporate Fraud by General Motors India, Times of India, Oct. 22, 2013, at A4, available at http://timesofindia.indiatimes.com/business/india- business/Corporate-fraud-by-General-Motors-India-says-govt-probe- panel/articleshow/24502650.cms. 10EXPERT COMMITTEE ON COMPANY LAW, REPORT ON COMPANY LAW 44-45 (May 31, 2005), http://www.primedirectors.com/pdf/JJ%20Irani%20Report-MCA.pdf. 11 The Companies Bill 2009. Bill No. 59 of 2009 (2009), available at http://www.mca.gov.in/Ministry/actsbills/pdf/Companies_Bill_2009_24Aug2009.pdf; The Companies Bill 2012, Bill No. 121-C of 2011 (2011), available at http://www.mca.gov.in/Ministry/pdf/The_Companies_Bill_2012.pdf. 12Companies Act 2013, No. 18 of 2013.§ 245, (2013) [hereinafter Companies Act 2013]

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scrutinizing the hurdles in its implementation. In conclusion, the authors argue that the provision is indeed a change of massive proportions, imperative in today‘s highly risk-oriented and company friendly market where caveat emptor has become a paradigm to live by.

ANALYZING THE NEED FOR CLASS ACTION IN INDIA

An indispensable need for a provision like section 24513 of the new Act reemerged fiercely when almost 300,000 Indian retail investors lost INR 5000 crore in the Satyam Computers securities fraud whereas their counterparts in the U.S. successfully sued the company for compensation to the tune of USD 125 million14. There are myriad security-fraud15 cases wherein Indian shareholders, after having lost enormous sums of money, have failed in obtaining compensation due to the Indian judicial infrastructure which doesn‘t practically permit a class action, as against their foreign counterparts who have been duly compensated16. Statistically, thousands of smaller cases up till 2012 have seen Indian investors losing more than INR 27 billion17.

Conspicuously, while the Indian legal system accepts class actions principally18, the current scenario in law and practice is not conducive to such

13Id. 14KIRAN KARNIK, THE SATYAM SAGA 27-30 (Business Standard Publishers 2009) (2009). 15LOUIS L. STRANEY, 16-17 (John Wiley & Sons 2010) (2010) (Generally, speaking it is the intentional use or attempt to use securities (stocks, bonds or future rights) through omission of material facts, or misrepresentation for the purpose of inducting someone to act in a manner that is not in their best interest. Even though it is not always the case security fraud usually entails monetary damage). 16Sandeep Singh, PwC Compensates Satyam Investors; but not Indian Ones, Hindustan Times, May 8, 2011, at A3, available at http://www.hindustantimes.com/business-news/pwc- compensates-satyam-investors-but-not-indian-ones/article1-695054.aspx. 17ERNST & YOUNG, INDIA FRAUD INDICATOR 2012, (March 31, 2012), http://www.ey.com/IN/en/Services/Assurance/Fraud-Investigation---Dispute-Services/India- Fraud-Indicator-2012. 18Dr. Kashinath G. Jalmi v. Speaker and Ors, 1993 AIR 1873; Sunil Batra v. Delhi Administration And Ors. 1978 AIR 1675 (finding that the relief claimed by the appellants in their writ petitions filed in the High Court being in the nature of a class action, without

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actions. The following section elaborates the gaping loopholes in the present system that necessitated the introduction of Section 245.

LACKING JURISDICTION WITH THE CIVIL COURTS

The SEBI and SCRA Acts regulate the greater part of securities market in India. Hence, most cases of securities frauds fall within the jurisdictional ambit of SEBI, expressly barring the jurisdiction of civil courts19 and thus rendering the courts useless to the private individuals. This view has been reaffirmed by the Court in Kesha Appliances P. Ltd. v. Royal Holdings Services Ltd.20. Even the Consumer Courts are not equipped to deal with the cases of the description of the Satyam Computers fraud21.

INSUFFICIENCY OF PROVISIONS FOR OPPRESSION AND MISMANAGEMENT

The insufficiency of Sections 241-24422 which essentially deal with oppression and mismanagement is starkly brought out by the fact that no single case of class action suit has been successfully allowed and/or tried in the Indian Courts. On the other hand, even derivative actions, which are customarily used by shareholders to seek remedies on behalf of the company for breaches of duties by directors and senior management, are rarely utilised by shareholders in India. Infact, the last sixty years have seen only about 10 derivative actions at the level of the High Courts or the Supreme Court, of which only 3 have been finally allowed to be pursued.23 Another feature

seeking any relief personal to them, should not have been dismissed merely on the ground of laches). 19Securities and Exchange Board of India Act, No. 15 of 1992. §15Y, §20A, (1992), available at http://www.sebi.gov.in/acts/act15ac.pdf. 20Kesha Appliances P. Ltd. v. Royal Holdings Services Ltd. (2006) 65 SCL 293 (Bom.) 21PAUL G. KARLSGODT, WORLD CLASS ACTION: A GUIDE TO GROUP AND REPRESENTATIVE ACTIONS AROUND THE GLOBE 525 (Paul G. Karlsgodt, Oxford University Press 2012) (2012); Midas Touch Investors Association v. M/S Satyam Computer Services Ltd. & Ors, Civil Appeal No. 4786 [hereinafter Midas] 22Companies Act 1956, Act no. 1 of 1956, §§241-244 (1956) 23VIKRAMADITYA KHANNA, THE RARITY OF DERIVATIVE ACTIONS IN INDIA: REASONS AND CONSEQUENCES 120-124 (Cambridge University Press) (2012)

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inherently absent in provisions for oppression and mismanagement is the intention to distribute the compensation to the whole class of persons having a common interest.

PROCEDURAL REQUIREMENTS MAKING IT IMPRACTICAL TO FILE CLASS ACTION

LAWSUITS IN INDIA

Even if, in arguendo, it were to be considered that Indian Civil Courts could successfully entertain class action suits against contraventions of the Companies Act, 2013, the procedural requirements would still place unwarranted and impractical burdens on the plaintiffs.

Firstly, a representative suit under Order 1 Rule 8 of the Code of Civil Procedure, 1908, which only creates a procedural right and not a substantial right to sue,24 claiming fraud or deceit by a company, would necessitate each and every plaintiff to establish direct reliance so as to sustain the maintainability of the suit25, as the ‗fraud on the market presumption‘26 is not recognized by the Indian Courts. This poses an insurmountable burden on the plaintiffs and the courts. Secondly, there is no certainty regarding how the unnamed parties in the suit would claim remedy (usually, it is mandatory for a non-named party to institute a suit on its own accord as to obtain remedy). Thirdly, considering that the concept of contingency fees27 has been prohibited

24Vinutha, The Development in Representative Suits, (2002), available at http://www.indiankanoon.org/doc/1237497/. 25 11 AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF 117-118 (Eastern Book & Co.11th ed. 2013) (1980) 26Anushi Lal Shaw & Robert P. Coen, Halliburton Oral Argument: The Fraud on the Market Theory is Basically a Sore Thumb, (March 17, 2014), available at http://www.mondaq.com/unitedstates/x/300056/Securities/Halliburton+Oral+Argument+The+ FraudOnTheMarket+Theory+Is+BasicAlly+A+Sore+Thumb (Fraud on the market presumption: allows investors to bring securities class action suits under Section 10(b) of the 1934 Securities Exchange Act by using a rebuttable presumption that public information about a company is reflected in its stock price because of the efficient markets hypothesis). 27 HARVARD LAW SCHOOL PROGRAMME ON THE LEGAL PROFESSION, THE INDIAN LEGAL PROFESSION 5 (2011), http://www.law.harvard.edu/programs/plp/pdf/Indian_Legal_Profession.pdf (Contingency

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by the Bar Council of India28, the costs of pursuing such litigation would be discouragingly high for the economically weak individuals.29 Fourthly, the delays in trial would increase multifold without a substantial provision for class action being in force.

Thus, it can be seen that Section 245 of the new Act serves as a touchstone to the change which, through a substantial provision of law, bridges the procedural disconnect between the existing provisions and the practicability of filing class action suits by aggrieved members.

IMPEDIMENTS TO EFFECTIVE IMPLEMENTATION OF SECTION 245

The hailed introduction of class action suits in India has indeed shown an illuminating light towards corporate development and democracy, but is only the first of many steps required to make it a reality. As always, the devil lies in the details, in this case, in the implementation. The primary reason for the colossal success of class actions in the U.S is the permissibility of contingency fees. The plaintiffs are required to pay a percentage of the awarded compensation to the plaintiff attorney in case of a favorable judgment, while the attorney does not receive any fees otherwise. This in effect, shifts the economic risk of success from the plaintiff to the plaintiff attorney. The absence of such a contingency model in India is the foremost hurdle to the effective implementation of Section 245. As a solution, the Companies Act, 2013 provides for the costs of the class action to be

Fee: charging fees contingent on the results of litigation or to otherwise share the proceeds of litigation). 28IBR Rules P. VI (2) (2) R.(20), available at http://lawmin.nic.in/la/subord/ bcipart6.htm #chapter2 (An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof). 29U.P. Rajya Setu Nigam Sanyukt v. U.P. State Bridge Corporation 1999 (3) AWC 2065 (finding that when it comes to a long drawn fight and requires approaching of a higher forum, the poor employees may not afford to approach this Court and bear the expenses and thus it satisfies the concept of little Indian to approach collectively to seek a class action).

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defrayed by the company or persons responsible for the oppressive act30. This has been tackled by section 12531 which provides that the funds of Investor Education and Protection Fund (IEPF) shall be utilized for reimbursing the legal expenses of class action suits. This will go a long way in dissipating all apprehensions as regard to high costs incurred in litigation and investors, including small investors who can take action more freely. Additionally, it permits a group of persons or any association of persons representing the aggrieved persons to take action on their behalf.32 Consequently, this incentivizes NGOs and investor associations to come to the forefront by voluntarily identifying instances of violation, gathering the dispersed shareholders and taking up action on behalf of the potential plaintiffs.

Another considerable hurdle is the onerous trial procedure of civil courts and the added delays in litigation. In response, the provision has empowered the National Company Law Tribunal (NCLT) to have jurisdiction over class action suits. This has obliterated the mental obstacle of filing a suit that an aggrieved shareholder struggled with earlier. He can now bypass the protracted, onerous and expensive procedure of the civil courts as their jurisdiction now stands barred under Section 26833. The provision specifically mandates for all similar applications to be consolidated into a single application thus eliminating the possibility of multiple proceedings and contradictory rulings on the same issue. Simultaneously, the efficiency of the legal system is also enhanced as a result of the specialized nature of the tribunals and the lessened time to obtain a decree.

ADVANTAGES OF THE PROVISION FOR CLASS ACTIONS IN INDIA

The intent of the legislation to grant to the masses of shareholders a facile remedy against errant companies is evident from the far-reaching implications

30 Companies Act 2013, supra note 9, at §245(5) 31Id at §125. 32 Id at §245 33Id. at §268.

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of Section 24534. Apart from the general advantages associated with class actions, the section purposefully proffers certain benefits tailored to confront the challenges typical to the corporate environment in India.

WIDER STANDING

The provisions for class action are fairly liberal with respect to the nature and number of persons allowed to make an application. A reasonable threshold of 10% of the total number of members or depositors has been prescribed by the rules.35 Further, by entitling the depositors to seek judicial remedy, the company is now responsible towards a new class of investors who were earlier unsecured.36 Also, NGOs and investor associations can come to the forefront by actively protecting investors‘ rights37.

SWEEPING NET OF DEFAULTERS

One pivotal implication is the expansive ambit of who can be sued under this provision. Auditors along with their firms, advisors, experts and consultants can be sued independently for providing incorrect or misleading information to the company or for their fraudulent or wrongful conduct.38 In case of any Claims against an audit firm, the liability shall be of the firm as well as of each partner who was involved in making any improper or misleading statement of particulars in the audit report or who acted in a fraudulent, unlawful or wrongful manner. Auditors can no longer afford to remain complacent or work hand in glove with the management. They will have to conduct more stringent audits to prevent any miss-statement or wrong certification. The liberal wording of the clause therefore ensures careful and diligent conduct of these previously incorrigible third parties while advising the company.

34Companies Act 2013, supra note 12. 35 Id. at §245(3) 36Id. at §245(1). 37Id. at §245(10) 38Id. at §245(1)(g)

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CRIMINAL PENALTY

The Tribunal orders shall bind the company and all its members, depositors and auditor including audit firm or expert or consultant or advisor. Non- compliance of Tribunal orders would for the first time, attract a criminal penalty for the defaulting officer(s). Such an officer who is in default shall be punishable with imprisonment for a term which may extend to 3 years and with fine which shall not be less than INR 25,000 but which may extend to INR 1 lakh.39 Making officials personally liable to criminal penalties will prove efficacious in regulating conduct at the individual level and will make every officer cautious of his conduct, thus deterring violation of corporate laws in the first place.

Apart from the direct advantages, there are numerous parallel implications of section 24540. Class action litigation fosters India‘s socialistic economic principles by equalizing the difference in power between large entities with abundant economic resources and individuals lacking means. Organized in a group, such individuals gain a stronger adversarial posture and amplify their ability to seek relief thus invigorating democracy through the corporate corridors of India and serving as a beacon of shareholder activism in India

POTENTIAL CONERNS

Section 245 despite of its comprehensiveness, like any nascent legislation, is fraught with certain inadequacies and snags. For starters, although depositors have been empowered to initiate class action suits, it is unclear as to who is a depositor, as the term is not defined anywhere. Also, if incase a suit is ruled in favour of the shareholders, the section lends no light on the principle to be applied by the tribunal for discharge of monetary award.

39 Id. at §245(7) 40Id. at §245.

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Further, the task of proving present or prospective oppression or mismanagement remains a tedious one as areas such as price manipulation and insider trading requires plaintiffs to discharge a fairly high burden of proof which is very difficult to gather.

Another bone of contention is the possibility of filing of frivolous applications under section 24541. However, the section does seem to address this issue by providing certain conditions to be accounted for by the tribunal before accepting such applications42. These include inter alia seeing whether the application has been made in good faith, whether cause of action can be pursued in one‘s own right, whether it involves parties other than the company and directors etc. Only when the application stands the test of these conditions, it is admitted by the tribunal. Additionally, when an application is found to be frivolous, the tribunal shall reject it with orders as to costs payable to the opposite party43. However, there still looms large the possibility of ill motivated shareholders filing frivolous applications in order to cause unnecessary interference in the business and functioning of the company and to malign its reputation in public. Other striking missing features are that stakeholders like creditors, bankers and debenture holders are not entitled to seek class action and that banking companies have been excluded from the purview of this provision.

CONCLUSION

Only after stumbling and falling does one learn to walk and almost six decades is what it took for the Indian Legislature to incorporate class action suits, which although is a giant leap in the right direction, also necessitates a huge procedural change in India‘s legislative system. For the success of class action suits in India, it is pertinent to modify it to fuse it into the Indian legal and

41 Id. at §245. 42Id. at §245(4). 43Id. at §245(8).

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procedural system. It will have to be seen how this sweeping provision is interpreted by the judiciary as many uncertainties are bound to surface upon application which will require cautious interpretation by the courts and supplementation by the Companies Act Rules 2013.

Before its inclusion, companies resorted to unscrupulous tactics involving manipulation and concealment to defraud innocent investors. Consequently, millions failed to obtain justice simply because an efficient provision was lacking in the statutes. This provision thus ensures the principle of ubi jus ibi remedium, where the companies, directors, auditors etc. would be at their toes to be serve the interested people.

In order to achieve the noble objectives of the newly introduced provision, it is apposite that investors should be made more aware of these provisions and enforcement of their rights under these. The refashion in the old legislation is indeed a very encouraging and realistic step towards countering the increasing corporate frauds and revolutionizing the direction of corporate development, from a pro-company approach to a more democratic and balanced one. Ergo, Class Action is undeniably a revolutionary legislation for the huge classes of investors in India.

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LEGAL ANALOGY : INSIGHT INTO RELAVANT LAWS AND OBJECTIVES OF PUBLIC PROCUREMENT BILL AND BID RIGGING IN COMPETITION LAW

Vaishnavi Shukla

Somya Mishra

PUBLIC PROCUREMENT

2.1 DEFINITION

Public procurement comprises of Government purchasing goods and services required for state activities, the basic purpose of which is to secure best value for public money.1Each and Every authority delegated with the financial powers of procuring goods in public interest shall have the responsibility and accountability to bring efficiency, economy and transparency in matters relating to public procurement and for fair and equitable treatment of suppliers and promotion of competition in public procurement(2).2The performance of public procurement markets has major implications for the effectiveness of governance and the well-being of citizens, in both developed and developing countries. Public procurement thus refers to all goods including construction works and services acquired by public authorities in public interest using public money. Procurement often involves goods and services having particular economic, social and or developmental significance—e.g. transportation and basic physical infrastructure which is vital to the competitiveness of business users and the mobility of citizens; hospitalss and other public health facilities; schools and universities; and defence and policing. Since procurementaccounts for such a large part of public resources, it is important that the procurement processoccurs in an accountable, transparent and well‐managed manner.

1 Government of India, Ministry of Finance, Rule 137, Chapter 6, General Financial Rules, 2005 2 OECD, Policy Round Tables Collusion & Corruption in Public Procurement, 2010

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The efficacy of public procurement process impacts directly on the overall credibility of government. This in turn also impacts citizens‘ level of trust, a factor which has important implications for the propensity to invest and engage in other wealth-creating activities.

PROCESS OF PUBLIC PROCUREMENT

Following is a flowchart which explains the process of public procurement for proper understanding of objectives

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AIMS AND OBJECTIVES OF PUBLIC PROCUREMENT BILL,2012 :

 A BILL to regulate public procurement with the objectives of ensuring transparency, fair and equitable treatment of bidders, promoting competition, enhancing efficiencyandeconomyandsafeguardingintegrity in the procurement process and for matters connected therewith or incidental thereto.

 The government on 14TH May,2012 sought to provide transparency and cut down corruption in publicprocurement by tabling the Public Procurement Bill, 2012 in the LokSabha.The Bill seeks to impose a jail term ranging from six months to five years for public servants found guilty of demanding and accepting bribes from bidders of government contracts.

 The provisions of the Bill will apply to procurement of goods and services of over Rs 50 lakh by Central ministers, autonomous organisations, central public sector enterprises (CPSEs) and companies where the Centre directly or indirectly, holds more than 51 % equity.

 It has also provided for setting up of a central public procurement portal by the central government and establishment of a system to redress grievance. At present, there is no overarching legislation governing public procurement by the central government and CPSE.

 The General Financial Rules, 2005, govern procurements made by the Centre. The Bill is based on the recommendations of Committee on Public Procurement headed by former bureaucrat VinodDhall which were accepted on February 22 by a Group of Ministers.

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Hence , these were in brief the objectives of Public Procurement Bill,2012 which was introduced by Mr.pranabMukherjee,the then finance minister and passed on 14th of may for bringing transparency in the procurement process.

BID RIGGING

A bid is an offer made in furtherance of an invitation to an offer made by an enterprise, toprocure goods or services for the public in general. It is a submitted price at which one will perform work or supply goods. A bidder then is an enterprise or an entity who offers such a bid in the public procurement mechanism initiated by the Government. With respect to bids in public procurement, collusion is a horizontal relationship between bidders who conspire to remove the element of competition from the process.

Various nations around the world have enacted their competition laws to contain anticompetitive practices the undertakings indulge in. Broadly, a check on cartelisation, abuse of dominance position, combinations (mergers) is formulated. The term cartel usually refers to such practices whichave as their objective to restrict the competition.3

World over, cartelisation is condemned as the worst form of abuse to competition. Collusion is a form of cartel which is defined as an anti- competitive agreement, practice or arrangement by competitors to fix prices, make rigged bids, establish bilateral restrictions or quotas, or share and divide markets by allocating customers, suppliers, territories or lines of commerce.4Collusion is a horizontal relationship involving an agreement between the various participants of the competition in the market.

3 .HFB Holdings v Commission, T-9/99, [2002] ECR II – 1487 4 4.OECD Recommendations & Practices, Recommendation of the Council concerning effective action against hardcore cartels, 1998

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Such agreements are usually secretive and involve fraud or gaining an unfair advantage over a third party, competitors, consumers or others with whom they are negotiating. Collusion, therefore, makes the bidding process inherently unfair and induces anticompetitive practices in the market.

TYPES OF BID RIGGING : Bid rigging or Collusive tendering takes place in the following forms.

1. Bid Suppression : In Bid Suppression, from the many bidders who apply for the tender, one or more competitors, who otherwise, under competitive forces, would bid, either refuse to bid or refrain from bidding or withdraw its bid, so that the designated bidder wins the tender. 2. Complementary Bidding: Complementary bidding is also called as ‗cover‘ or ‗courtesy‘ or ‗phony‘ bidding. This form represents bidding for participatory sake. One or more competitors agree to bid, either at a very high price or, offer bids, in addition to certain specific untenable conditions, so that, the bid in totality is rejected by the authority floating the tender. By indulging in this form of bidding, the competitors merely give an impression of participating in the bidding process, whereas, in reality, they have no intention of procuring the tender. Complementary bidding is the most frequently occurring form of bid rigging. The participants of this collusion defraud purchasers by creating the appearance of competition to conceal secretly inflated pricescase stated the undertakings coordinated and made cover bids. The bidders participating in such a form has no probability of winning, by design. However, the designated low cartel bidder must bid competitively against any firms outside the cartel.

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3. Bid Rotation:

In bid rotation scheme, all conspirators submit bids but take turns being the lowest bidder. The terms of the rotation may vary; for example, competitors may take turns on contracts according to the size of the contract, allocating equal amounts to each conspirator or allocating volumes that correspond to the size of each conspirator company. A strict bid rotation pattern defies the law of chance and suggests the existence of collusion.

4. Sub-Contracting: As the term suggests, sub-contracting bidding refers to a scenario when the remaining competitors except the designated winner, agree to not bid, on the condition of receiving subcontracts or supply or ancillary contracts in exchange of their ‗non participation‘ in the bidding process. A deviation from this kind of bid rigging can be, when a low bidder agrees to withdraw its bid in favour of the next bidder in exchange for a lucrative sub-contract that divided the illegally obtained higher price between them.

5. Market Division: Market division or allocation schemes are agreements in which competitors divide markets among themselves. In such schemes, competing firms allocate specific customers or types of customers, products, or territories among themselves. For example, one competitor will be allowed to sell to, or bid on contracts let by, certain customers or types of customers. In return, he or she will not sell to, or bid on contracts let by, customers allocated to the other competitors. In other schemes, competitors agree to sell only to customers in certain geographic areas and refuse to sell to, or quote intentionally high prices to, customers in geographic areas allocated to conspirator companies. In a nutshell, the above forms of bid rigging suggest that the competitors in question agree to quote identical prices, the hope being that in the end each will receive its ‗fair‘ share of orders. The Indian Competition law uses both,

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‗bid rigging‘ and ‗collusive bidding‘ as a horizontal anti-competitive agreement which has no legality. Both these terms are used interchangeably to describe the many forms of illegal anti-competitive bidding. A common thread running through them and also through the form is that they involve some kind of an arrangement – formal or informal, which impedes competition in the market. Collusive Tendering or Collusive Bidding (bidding in conjunction with each other) is a practice whereby firms agree amongst themselves to collaborate over their response to invitations to tender. It is particularly likely to be encountered in the engineering and construction industries where firms compete for very large contracts; often thetenderee will have a powerful bargaining position and the contractors feel the need to concert their bargaining power.

GENERAL LAW RELATING TO BID RIGGING AROUND THE WORLD : ANTI-COMPETITIVE AGREEMENT :

From the genesis of antitrust in the US, to its growth in the EU, to the mature competition laws in Korea, Japan, Australia and New Zealand, to the swiftly- evolving regimes in China and south-east Asia, countries across the world recognise the importance of having fully-functional antitrust regimes.5‗People who combine together to keep up prices do not shout it from the housetops.So, it included not only an ‗agreement‘ properly so called, but any ‗arrangement‘, however informal.‘6 An anti-competitive agreement under the competition laws of various jurisdictions around the world is defined broader than the way it is described in the contractual laws.7 ‗Action in concert‘ is a form of coordination between

5 Global Competition Review, March 2012 6 Lord Denning, RRTA v W.H.Smith and Sons Ltd. 7 Section 2(b), The Competition Act, 2002; Article 81(1) of EU (now Article 101 of TFEU); Section 1 of the Sherman Act.

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enterprises which may not yet have resulted in the conclusion of a contract within the real meaning, but consciously substitute competition with risks by practical cooperation. Each party carries out a course of conduct involving the acceptance of mutual obligations, which are implicit if their conduct is to achieve its only point and purpose, and each carries out in the knowledge, and because of the knowledge the others are all doing likewise can be expected to continue to do so.The inclusion of concerted practices within Article 101 of Treaty on the functioning of European Union (TFEU) means that conduct which is not attributable to an agreement or a decision may nevertheless amount to an infringement, thereby restricting competition within the common market. Reaching an understanding to inform one another of the prices they intend to charge is an action in concert. The famous Dyestuffs case was the first important case on concerted practices to come before the European Court of Justice. The commission brought out the rationale behind bringing a ‗concerted practice‘ under the purview of an ‗agreement‘. The object is to bring within the prohibition of the article, (Article 101- formerly Article 81 of the Treaty establishing European Community) a form of coordination between undertakings which, without having reached the stage where an agreement properly ‗so called‘ has concluded knowingly substitutes practical cooperation between them for the risks of the competition. The Court of Justice therefore upheld the decision of imposing a heavy penalty onseveral producers, which the lower courts considered, had been guilty of price fixing through concerted practice.

3.3. BID RIGGING IN INDIA

The provisions regarding bid rigging as an anti-competitive practice had been mentioned in the erstwhile.The Monopolies and Restrictive Trade Practices Act, 1969, (MRTP) as a restrictive trade practice. It stated that:

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 An agreement as to the bids which any of the parties thereto may offer at an auction for the sale of goods or;  Any agreement whereby any party thereto agrees to abstain from bidding at any auction for the sale of goods8 shall be deemed to be an agreement relating to restrictive trade practice (RTP). Further, it shall be subject to registration, in accordance with the provisions of MRTP, unless such an agreement fell under any one of the following categories.9

. Had express authority by or under any law which was in force at that time or;

. Had the approval of the Central Government or;

. Had Central Government as one of the parties. This clause on tampering with bidding had been inserted by an Amendment Act, 1984. The raison d‘etre behind the Amendment of 1984 was to overcome the difficulty resulting from the decision of the SC in the Telco case10 that ‗an agreement will be registrable, under Section 35 read with Section 33(1), if it has both, the effect of restricting competition within the meaning of section 2(o) of the MRTP and also deal with the subject matter described in clauses (a) to (l) under Section 33.

After the amending act of 1984, trade practices enumerated in section 33 do not require to be examined with reference to the definition in section 2(o). The trade practices given under the former section have all the ingredients of

8 Section 33(1)(jb), The Monopolies and Restrictive Trade Practices Act, 1969 9 Section 33(3), The Monopolies and Restrictive Trade Practices Act, 1969 10 Tata Engineering & Locomotive Co. Ltd., Bombay v Registrar of the Restrictive Trade Agreements, New Delhi,AIR 1977 SC 97334

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restrictive trade practices and by law have become statutory illustrations of RTPs.

The trade practices enumerated in Section 33(1) are per se RTPs and the judgment in Telco‘s case has now become infructuous. With this amendment, the view initially held by MRTPC that the clauses appearing under Section 33(1) are an extension or elaboration of the definition of restrictive trade practices in Section 2(o) and the trade practices so specified are per se RTPs falling within the meaning of section 2(o), has been restored.

The decision that such an agreement is prejudicial to the interests of the public was to be determined by the MRTP Commission. Till the time the impugned trade practice is declared as void by the Commission, the parties were allowed to carry the practice with impunity, except of course, when done by the Commission CURRENT PROVISIONS The Competition Act, 2002 (hereinafter referred to as the ‗Act‘) came into effect in the year 2003 and repealed the MRTP. With the advent of the new legislation, the anti- competitive aspect of bid rigging is bought under its purview. The Act, takes into consideration two kinds of agreements: Horizontal and Vertical. Bid Rigging, which comes under the purview of horizontal agreements, is explained in Section 3(3)(d) of the Act, as an agreement or decision between enterprises or association of enterprises 35or persons or association of person or between any person and enterprise, engaged in similar or identical production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process of bidding. Such an agreement or

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decision which directly or indirectly deals with bid rigging or collusive bidding is presumed to have an appreciable adverse effect on the competition prevalent in the market. By virtue of this adverse effect, they are struck down as void with the per se reason, meaning thereby that once the essential ingredients constituting bid rigging are established there is no further need to launch into an elaborate enquiry to find out impact of such conduct on the market and adverse effect on competition is presumed. CASES HANDLED BY COMPETITION COMMISSION OF INDIA (CCI) THUSFAR :

CCI is one of the main bodies to keep a check on bid rigging. There have been a number of cases relating to bid rigging which have come to CCI and following has been the detection:1.03/2011, Re: Suo motu case against LPG cylinder manufacturers The CCI had taken an action suomotu against the manufacturers of LPG Cylinders for having manipulated the bids and quoted identical rates in groups. The CCI came to a conclusion that the manufactures indeed had indulged in bid rigging. This conclusion was a result of having worked on factors that increase collusion in a relevant market and considered the issue in the light of Section 19(3) of the Act, i.e. adverse appreciable effect on the competition

2.C-145/2008/DGIR, DDRS (G) – II, Railway Board, Ministry of Railways v M/S RMG Polyvinyl India Ltd., New Delhi &Ors. :

The informant (Railway Board) filed a case against Railways Research and Standard Organisation approved vendors for indulging in cartel like activities, thereby rigging bids for the tender floated by South Eastern Raailways. The vendors had abnormally increased the prices of the PVC sheets (the commodity in question) without any business justification. The case stood transferred to CCI from MRTPC, but since the provisions of Section 3 came

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into force in 2009 and the alleged activities too place in 2007, the Commission stated that it does not have a 1retrospective jurisdiction to handle the case.

3.15/2010, Jupiter Gaming Solutions Private Limited v Government of Goa.&Anr.:

The informant alleged that the Government of Goa had indulged in anti- competitive practice and abused its dominant position by formulating certain unreasonable prequalifying terms for the tender floated. The detection of bid rigging made by the Director General on the basis of purchase of bid documents for more than one company by the same person, insertion of an additional clause in the final proposal, use of whitener on the date of proposal, lacked corroborative evidence, in the Commission‘s view, thereby removing the allegation from the opposite parties.

4. 43/2010, A foundation for Common Cause & People Awareness v PES Installation Private Limited &Ors. :

Action was taken against the three opposite parties for having indulged in bid rigging.The CCI took into consideration circumstantial evidence, for example, change in the cost structure at the time of evaluation of bids, similar typographical errors, etc. Also, it stated that when tender specifications, terms and conditions and estimated costs are uncertain, bidders tend to collude. Whereas, the Ministry of Family and Welfare had just been asked to look into procurements in such hospitals and take suitable actions to prevent rigging of such bids and loss to Government. exchequer, the remaining two Opposite Parties were guilty of having rigged the bids.

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CONCLUSION AND RECOMMENDATIONS : For ensuring effective functioning of public procurement markets (and thereby maximising value for money for citizens) two distinct but inter-related challenges are to be addressed, which are: 1. Creating an environment to facilitate putting in place administrative processes that promote integrity (i.e. preventing corruption on the part of public officials); 2. Promoting effective competition among alternative suppliers, devoid of collusion of any kind among them. India has a regulatory mechanism to ensure integrity and transparency in public procurement of goods and services. The competition law in India has evolved and come a long way to focus on the anti-competitive nature of bid rigging in public procurement, but there is still a long way to Go .For bid rigging, which is very harmful for the economy as discussed above should be curtailed. A major step in curtailing it is by detecting it, but this can be difficult in practice. It might seem straightforward to detect collusive conduct, through an empirical investigation designed to ascertain whether prices are, in fact, elevated or if there was, in fact, a reduction in output. But such an investigation is likely to be a complicated one, depending on the variety of supply and demand conditions typically present in the firm, industry and the information that is to be known from the test. But, because of this information which is needed to apply the economic tests for detection, it is a much greater challenge to use these tools as a test to identify collusive conduct in advance of an investigation or legal challenge. One of the most important pre requisites of deterring bid rigging is to have an exclusive and exhaustive legal mechanism to govern the same, which usually materialises in the form of a national competition law in furtherance to cure, considering the anticompetitive effects it has on public procurement. Presently, bid rigging in public procurement is out rightly prohibited in the

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Act. However, this menace can also be the subject matter of legal provisions that focus specifically on collusion in public procurement markets. An endeavour towards this direction by the Indian legislation has been in considering The Public Procurement Bill, 2012. Consequently, it will not only save large sums of public money, it will also improve the quality of the goods and services procured by the public entities, either for their own use or for the use of public. It is, therefore recommended that there is a need to frame rules under the Public Procurement Bill, 2012 (the ‗Bill) as soon as it becomes Public Procurement Act. Section 55 of the Bill entitles the procuring entities (Ministry or Department of the Central Government or Central Public Sector Enterprise, owned or controlled by the Central Government etc.) to issue guidelines giving details of procedure or general forms to give effect to the provisions of the Bill, which is envisaged tobecome an act. Issue of such regulations would create an environment for effectivecompetition in public procurement which is one of its specific aims. However, while framing such regulations, care needs to be taken to ensure that there is no conflict of jurisdictions between the existing competition laws and the new Rules.

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EXTENSION OF PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005: A CLOSER LOOK

Dafy B. George*

Today another woman died and not on a foreign field and not with a rifle strapped to her back, and not with a large defense of tanks rumbling and rolling behind her. She died without CNN covering her war. She died without talk of intelligent bombs and strategic targets The target was simply her face, her back her pregnant belly.

The target was her precious flesh that was once composed like music in her mother‘s body and sung in the anthem of birth.

The target was this life that had lived its own dear wildness, had been loved and not loved, had danced and not danced.

A life like yours or mine that had stumbled up from a beginning and had learned to walk

______

*Fifth Year, Amity Law School, Delhi

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and had learned to read. and had learned to sing.

Another woman died today. not far from where you live; Just there, next door where the tall light falls across the pavement.

Just there, a few steps away where you‘ve often heard shouting, Another woman died today.

She was the same girl her mother used to kiss; the same child you dreamed beside in school. The same baby her parents walked in the night with and listened and listened and listened For her cries even while they slept.

And someone has confused his rage with this woman‘s only life.

-Carol Geneya Kapla

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Enough has been written and read about the need for protection of women in our society. In fact State has recognized the vulnerable status of women in India and enacted and amended umpteen numbers of laws to reiterate its protective discrimination stand for women taken since the very formation of our nation through constitutional provisions.

This paper is aimed at looking closely as to how and why the State perceives extent of the Protection from Domestic Violence Act, 2005(herein after referred to as Domestic Violence Act, 2005) ever since Sou. Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Ors.1, with respect to inclusion of women family members as Respondents in a trial under the Domestic Violence Act, 2005. Majority of cases currently are reported through this statute as the sanctions and remedies available in it are much more favourable than any other and a wide array of instances are given an umbrella herein. Why specifically through this Act is because it provides for more effective protection of rights of women, guaranteed under the Indian Constitution, who are victims of any kind of violence occurring within the family. It provides for civil remedies backed by criminal sanctions.2

The stand taken by the Supreme Court in this case was that the expression "female" has not been used in the proviso to Section 2(q) also, but, on the other hand, if the Legislature intended to exclude females from the ambit of the complaint, which can be filed by an aggrieved wife, females would have been specifically excluded, instead of it being provided in the proviso that a complaint could also be filed against a relative of the husband or the male partner. No restrictive meaning has been given to the expression "relative", nor has the said expression been specifically defined in the Domestic Violence Act, 2005, to make it specific to males only.

This decision put an end to much contested issue as to whether women relatives can be held guilty under this Act or not.

India‘s stand on domestic violence came into light really late and violence in matrimonial relationships only was dealt with, mainly dowry related violence, maybe

1 [2011]2SCR261 2 Edited by bimal n. patel, vol2 India and International Law: Introduction, Martinus Nijoff publishers, 2008

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because it was one taboo that we have been trying to fight against since forever. It remained as the pressure point for the feminists of women‘s empowerment movement as well as of our Legislature. Only after recommendation, from International Institutions and other Nation States, were suggested that special efforts were taken to redress violence being suffered inside millions of homes in India, which we were scared to even address before because of the State‘s stand to steer clear from domestic social order as people generally resent any step taken by State to interfere in it.

In the light of the ―Government of India Report on Platform for Action: Ten Years after Beijing‖ and the marital violence scenario prevailing in the country the need was felt for an exclusive law on domestic violence. Initiatives in this direction began with the collaborative efforts of the UNIFEM and Lawyers‘ Collective Rights Initiative (LCWRI). A delegation of representatives from women‘s groups and State Women‘s Commissions met the then HRD Minister regarding the need to enact a law on domestic violence. It finally resulted in the drafting of the Bill on domestic violence, that is, ―Protection of Women from Domestic Violence the Act 2005‖, which was passed by Parliament in September 2005 and came into force in October 2006.

The Act defines domestic violence to include actual abuse or threat of abuse— physical, sexual, verbal, emotional or economic violence under Section 33. The Act

3 Act says that any act, omissions or commission or conduct of the respondent shall constitute domestic violence in case it

(a) harms or injures or endangers the health, safety of life, limb or well-being, whether mental or physical, of the aggrieved or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce him or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

For the purpose of Section 3:

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prima facie appears to be comprehensive. The term ―domestic violence‖ has been defined for the first time in such a detailed manner which includes actual abuse or threat of abuse that is physical, sexual, verbal, emotional or economic. Even harassment by way of unlawful dowry demands to women or her relatives would also be covered under this definition. The Act seeks to cover even those women who are or have been in a relationship with the abuser, where both parties have lived together in a shared household and are related by consanguinity, marriage or adaption. Also, relationships with family members living together as a joint family are included. Legal protection is thus available to women who are sisters, widows, mothers, single women or living with the abuser. Besides, the Act protects the rights of women to

(i) ―physical abuse‖ means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) ―sexual abuse‖ includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) ―verbal and emotional abuse‖ includes

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) ―economic abuse‖ includes

(a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonable required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

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secure housing.4 Moreover, the Act is not relying only on law enforcement agencies for protecting women against domestic violence. It refers to ―protection officers‖ and allows registration of NGOs as ―service providers for legal aid, medical examination or shelter for women in distress‖.5

We need to look into if not mirror how other jurisdictions around the globe are dealing with this social problem through its laws. In the United Kingdom, there is no statutory definition of domestic violence, and the term covers a range of behaviour, much but not all of which is criminal. Historically there have been a number of different ―official‖ definitions. However, in 2004, the previous Government introduced a common gender-neutral non-statutory definition for use across departments. This was:

―Any incident of threatening behaviour, violence or abuse (psychological, physical, sexual, financial or emotional) between adults who are or have been intimate partners or family members, regardless of sexuality.‖

On 31 March 2013, a new cross-Government definition was introduced which has been expanded to include 16 and 17 year olds and coercive control. The cross- Government definition is:

Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. The abuse can encompass but is not limited to: psychological physical sexual financial emotional

4 ―Bill on Protection to Women against domestic violence gets Cabinet nod‖, The Pioneer, June 24, 2005. 5 ―Domestic Violence Bill gets nod‖, The Asian Age, June 24, 2005.

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Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.

Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim.

This definition includes so called ‗honour‘ based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group. This definition is implemented since March 2013. This is overseen now by the Inter Ministerial Group on Violence Against Women and Girls.

What is to be noted herein is that an attempt is always been made to include all groups of victims and abusers in the ambit of law to ensure justice and protect the moral fabric of society. Beyond governments, definitions vary. The United Nations uses a gender-based definition:

Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivations of liberty, whether occurring in public or private life.6

In its November 2010 strategy document, Call to end violence against women and girls the Government said that it would be using the UN definition for all its work across government to counter violence against women:

Violence against women and girls is a gender-based crime which requires a focused and robust cross-government approach underpinned by a single agreed definition. It is for this reason that we are using the United Nations (UN) Declaration (1993) on the elimination of violence against women to guide our work across all government departments: ‗Any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or

6 ―UN Declaration of Violence Against Women‖ Article 1, , December 1993, A/RES/48/104

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in private life‘. The declaration enshrines women‘s rights to live without the fear of violence and abuse and the United Kingdom‘s ratification of the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) upholds this principle.7

The United Nations came out with its Report, Domestic Violence Legislation and its Implementation, Domestic Violence Legislation and its Implementation, An analysis for ASEAN countries based on international standards and good practices in 2011. It was noted therein that, ―It is advisable to include all forms of domestic relationships in the law‖. The broadly defined relationships of dependency mentioned in some of the laws allow for a broad interpretation of the law. A recommended formulation is to supplement provisions on individuals covered under the law with a definition of a ―shared residence‖ to include all family members within it. This has been done in the Malaysian, Cambodian, and Singaporean laws. Definitions of domestic violence in the laws of some ASEAN countries exempt certain acts of violence. This leaves room for discretion and interpretation of the law. For example, the Cambodian law allows for disciplining if conducted with compassion, pity and sincerity. The Thai law also includes in its definition of domestic violence ―unethical dominance‖ compelling family members to commit any unlawful acts. This allows for tolerance for violence if certain conducts are not considered as amounting to ―unethical dominance‖.8

Cultural identities can vary depending on the setting, life experience, and the broader context of oppression. It is important to note, however, that cultural commonalities do exist among members of a group and affect violence, survival, services and support, but their role is often oversimplified. Making generalizations and cultural assumptions are commonly rooted in unequal power and privilege, and they can have serious consequences for domestic violence survivors.9

7 Pat Strickland , Domestic Violence, Home Affairs Section, House of lords Library, SN/HA/6337 ( viewed on 9/3/2014) 8 An analysis for ASEAN countries based on international standards and good practices 2011 UN WOMEN Domestic Violence Legislation and its Implementation, ,(viewed on 05 Mar 2014) 9 Mini Kim, Becki Masaki and Gita Mehrotra Domestic Violence:Intersectionality and Culturally Competent Practice, A Lily Out Of the Mud, , Columbia University Press, 2013

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Past literatures has suggested that certain characteristics of the general Asian community, including gender roles, the stigma of divorce, and lack of support systems may actually increase the occurrence and tolerance of domestic violence in our community even if bayed abroad.10

Now we can see and respect how and why the Wankhade case11 has brought clarity to our social legislation stand. But even then there are certain problems which still remain. Violence faced by the ‗mother-in-law‘ is completely missing. There is no mention of it. The Act completely ignores violence by the daughter in-law against the in-laws. The country has already seen the misuse of the Dowry Prohibition Act 1986. It was found that every four minutes in India, innocent persons including old mothers/pregnant sisters/children, are facing false and fabricated dowry cases and are sent behind bars without any evidence (Section 498A is non-bailable).12 Fear of this instance cannot and should not bar us from ensuing down the round of giving extra protection to women in domestic relationships in any household.

India is a party to the UN Convention on Elimination of Discrimination Against Women (CEDAW), often referred to as the Women‘s Bill of Rights. CEDAW imposes an obligation on State to protect women from all kinds of atrocities faced by them. By becoming a party to CEDAW, as a part of its commitment to eliminate all forms of discrimination against women, the Indian government has not only recognized the need to address domestic violence through legal and other measures, but is also duty-bound to do so.

―The message of international instruments:- Convention on the Elimination of All Forms of Discrimination Against Women, 1979 (―CEDAW‖) and the Beijing Declaration, which directs all State parties to take appropriate measures to prevent discrimination of all forms against women is quite clear. India is a signatory to CEDAW having accepted and ratified in June, 1993. The interpretation that we have placed ... gives effect to the principles contained in these instruments. The domestic Courts are under an obligation to give due regard to International Conventions and

10 Grace J. Yoo, Mai Nhung Le, Alan Y. Od Handbook of Asian American health, Springer, 2012 11 [2011]2SCR261 12 Kishwar Madhu, ‗Codified Hindu Law—Myth or Reality‘, EPW, August 13, 1994.

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Norms for construing domestic laws when there is no inconsistency between them.‖ 13

So basically Indian judiciary through its stand is only making an attempt to fulfill its treaty based obligation, placing India at a higher pedestal.

In Indra Sarma vs V.K.V.Sarma14 Supreme Court held that The Domestic Violence Act has been enacted to provide a remedy in Civil Law for protection of women from being victims of domestic violence and to prevent occurrence of domestic violence in the society. The Domestic Violence Act has been enacted also to provide an effective protection of the rights of women guaranteed under the Constitution, who are victims of violence of any kind occurring within the family. Intention of the Court herein was to emphasise on the point that violence towards women from any family member, be it woman or man is not to be tolerated, as it went on to include live in relationships in purview of this Act through this judgment. Reiterating what was already held in many of the High Courts, like for instance in a case it was observed,

―From a plain reading of the proviso to S. 2(q) of the Act of 2005, it is apparent that a complaint by a wife or a female living in a relationship in the nature of marriage may also file a complaint against a relative of the husband. The term relative is quite broad and it includes all relations of the husband irrespective of gender or sex.‖15

Also, based on an interpretation of the term ‗an aggrieved wife or female living in a relationship in the nature of marriage‘, commentaries on the law clarify that an aggrieved daughter-in-law can bring a claim against her victimizing mother-in-law under this law, but not vice versa.16

"The view taken by the sessions judge that women will not be covered by the definition of the term 'respondent', as given in the Domestic Violence Act, is clearly contrary to law. As regards his opinion that there were no sufficient grounds for proceeding against the respondents, the question is whether his approach was

13 Gita Hariharan and another v. Reserve Bank of India & another, (1999) (1) CTC 481 14 2013(14)SCALE4 15 Smt. Sarita v. Smt. Umrao2008 (1) WLN 359: 2008 (1) R.Cr.D. 97 (Raj) 16 Indira Jaising (ed.) (2009), Handbook on Law of Domestic Violence, LexisNexis: New Delhi, at p. 23

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justified, should arise in proceedings instituted on the basis of Section 12 of the Act," Justice Thipsay observed.17

Primarily meant to provide protection to the wife or female live-in partner or his relatives, the law also extends its protection to women who are sisters, widows or mothers.18 And the stand taken by Court now brings in all kinds of domestic abuses ensued in between any relationship which might actually disrupt the social order as it is one territory which the Courts have always tried to avoid.

While some High Courts initially ruled against naming the female relatives of husband as respondents most notably in the case of Ajay Kant v. Alka Sharma decided in 2007, many subsequent judgments have asserted that proviso to section 2(q) makes it clear that any relative of the husband, irrespective of gender can be made as respondent.19

Approximately 53% of the women have experienced violence from their husbands, and approximately 10% of the women have experienced violence from other members of their marital households. 20So we do need to address the problem of violence being committed by husband‘s family members (including female relatives) against the women.

In a country like ours it‘s always said that a woman marries not just the man but his family too. Therefore, we need to give them the means to protect themselves from all or any one there who might hurt her. There might be hue and cry created because of the contentions that this provision will be misused, there are other laws present to deal with this situation, etc. But the bitter reality of today is that no amount of protection is enough. Women are suffering physically, emotionally and financially and we need to adopt all means possible for their survival if not empowerment.

17 ―Women could be made respondents in DV Act cases Bombay – HC‖, (viewed on 05 Mar 2014) 18 Angela Browne Miller, Violence and Abuse in Society: Understanding a Global Crisis, ABC-CLIO 2012 19 Harsh Dobhal, Writings on Human Rights, Law and Society in India:A Comat Law Anthology:Selections from Combat Law, 2002-2010 , Socio Legal Information Cent, 2011 20 Niveditha Menon, Domestic Violence in India:Identifying Types of Control and Coping Mechanisms in Violent Relationships, ProQuest Publication, 2008

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CYBER CRIME IN INDIA: AN OVERVIEW VIS-À-VIS INFORMATION TECHNOLOGY ACT, 2000

Amiya Kumar Pati* Kumar Ankit**

Introduction

Cyber Law generally mean law relating to electronic communication network and virtual reality and this is done through the use of computers and internet. Today computers and internet touch and influences almost every aspect of our life and we are generally dependent on the computers. The house we live in, the electricity we use, the transportation by which we commute, the water we drink, the food we eat, the appliances we use, the medicines we consume, our hospital records – all are dependent, in some way or the other on computers, So, not only do we need to be computer-literate, but we also need to understand the myriad issues that enfold our all-embracing and indispensable reliance on computers.1

Internet has emerged to be the mantra and savior of the present day with communication and data sharing made possible in the manner of a click of a finger. Internet is a gigantic conglomeration of networks interlinking numerous smaller groups of linked computer networks. Internet access is provided by the Internet Service Providers (ISPs), which are in-turn intricately interconnected with each other at Network Access points (NAPs).2

* Student, Damodaram Sanjivayya National Law University, Visakhapatnam

** Student, Damodaram Sanjivayya National Law University, Visakhapatnam

1 S Godara, 'Prevention and control of cyber crimes in India: problems, issues' [2009] 5, 11

2 Raghu Santanam, M. Sethumadhavan, Cyber Security, Cyber Crime and Cyber Forensics: Applications and Perspectives (1st, Information Science Reference, USA 2011), p 50

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Computers were introduced in our country about two decades back and today e can say with pride that India is now the world leader in the Information Technology sector. Our country, which till about a decade ago, was known in the world as a country with unskilled manual labor is today known as the knowledge based country. Even The United States is worried about our progress in this sector and that is why government even introduced a legislation under which outsourcing of government contract relating to Information Technology to a foreign country has been restricted.3

In the field of Law, particularly evidence, our legislature and the courts have kept pace with modern technology by enactment of law and pronouncement of landmark judgement.

INFORMATION TECHNOLOGY ACT, 2000

In the year 2000, Information Act was passed to alleviate some of the problems that arose out of communication over computer network. It has been amended the Evidence Act of 1872, amended Indian Penal Code of 1860 and also Banker‘s Book Evidence Act of 1891 has been suitably amended in order to facilitate collection and admissibility of Evidence Act, which was enacted more than 132 years back. The definition of Evidence Act has been amended to include electronic record as admissible documentary evidence under Section 3 of the Evidence Act. Under Sections 65A and 65B, by deeming fiction, electronic record produced by computer is treated as document. Digital Signatures certified by the Controller of certifying Authority has been legally recognized as a sufficient proof of affixation of signature of the author.4 The electronic messages, commonly known as e-mails, are also statutorily

3 Felicia Donovan, Kristyn Bernier, Cyber Crime Fighters: Tales from the Trenches (2nd, Pearson Education, India 2008) 176

4 Susan W. Brenner, Cybercrime: Criminal Threats from Cyberspace (3rd, Greenwood Publishing House, USA 2010) p 32

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recognized as a sufficient communication to the addressee concerned. Thus, by and large the legislature has performed its role in adapting the emerging technology into the statute book.

With the adoption of Information Technology Act, 2000 business and contract has become faster and easier. The requirement of preferred documents is no longer necessary and contract can be executed with electronic record and digital signature duly certified by Certifying Authority constituted by the Act5. To sign a document digitally, the signer first delimits the borders of what is to be signed and the delimited information is the message which can be forwarded by the signer by using his private key.

Digital signatures differ from handwritten signatures in at least three key aspects

 A handwritten signature can eventually be duplicated by a forger, while a digital signature is, unable to be duplicated.  A person‘s handwritten signature is constant or similar on every document, while the digital signature will be different for every message6  A digital signature defines more definitely the message sought to be signed. A paper signature identifies the signed matter less than perfectly. Ordinarily, the signature appears below what is signed, and the physical dimensions of the paper and the regular layout of the text are relied upon to indicate alteration.

5 Symbiosis Educational Society, ' Cyber Crimes against Individuals in India and IT Act' [2010] 10, 39 6 Zeinab Karake-Shalhoub, Lubna Al Qasimi, Cyber Law and Cyber Security in Developing and Emerging Economies (1st, Edward Elgar Publishing, Bangladesh 2009) 190

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Judgments on Cyber Law

Indian courts have started adopting and availing the benefit of cyber law and electronic mode of communicating in the matter of recording of evidence. The Supreme Court in the Case of Praful Desai examined the question regarding the use of modern technology like recording of evidence by way of video conferencing on length7. In the said case, interpretation of Section 273 of CrPC, which requires that evidence in trial has been taken ‖ in the presence of the accused‖ or his pleader, came up for the consideration. In that case, the prosecution wanted to record the evidence of a doctor in US through video conferencing, as the doctor refused to come to India for deposing evidence and there was no way by which presence of the said doctor could have been procured by our courts. The Supreme Court held that recording of evidence by use of video-conference satisfied the requirement of Section 273 CrPC.8

Another significant area where modern technology can be used is for purpose of remand of accused. Section 167(2) CrPC requires production of the accused before the magistrate at the time of remand. We know that remand cannot be for more than 15 days at a time and investigation is hardly complete within 15days, especially cases involving major offences. Thus the accused are required to be produced before the magistrate again and again. This can very well be done by use of video conferencing. This will save the inconvenience to the police and save public exchequer in bringing the accused to court and sending him back. This will also save the accused from harassment of traveling from Jail to the Court and back in a crowded police van. It is only the State of Andhra Pradesh, which has amended the Section 167(2) in 20009, and

7 Sita Ram Sharma, Indian Legislation on Cyber Crime (4th, Anmol Publications Pvt. Limited, India 2004) p 65 8 T Singh, ' Cyber Law & Information Technology' (Delhi Courts 2008) accessed 2 September, 2013

9 Nir Kshetri, the Global Cybercrime Industry: Economic, Institutional and Strategic Perspectives (4th, Springer Publications, USA 2010) p 32

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the amended section permits production of the accused ―through the medium of electronic video linkage‖. However, even in the State of Karnataka, which has computerized all its courts up to the Taluka level, remand is done through video linkage. According to me such methods should be adopted throughout the country for quick, hassle free and pragmatic handling in such cases.

One more area where the court has recently made use of modern technology is conducting trial without physical presence of the accused in the courtroom. Section 317 of CrPC normally requires that evidence, in a criminal trial to be recorded in the presence of the accused. In the case of Pappu Yadav10, the court was confronted with a position in which, the accused, Pappu Yadav who was being tried for offence of murder and was lodged in Belur Jail in the state of Bihar was violating all the provisions of Jail Manual. He was entertaining large number of visitors inside the Jail, though jail Manual permits only two visitors of the family in a day. He was throwing parties there, and he even instigated and humiliated the Inspector General of Police who came for an official inspection. The accused was asked to be transferred out of Bihar. Plea raised on behalf of the accused was that in case Pappu Yadav is transferred out of Bihar, he would be denied the right of a fair trial, as he would not be able to attend the court proceedings and instruct the council effectively. The court relying upon Praful Desai judgment, held that even if the accused is transferred out of Bihar and he is not physically present in the court room, the trail can be held with the aid of video conferencing and directed transfer of Pappu Yadav from Bihar to Tihar. The cause list and orders of the High Courts and Supreme Court are readily available on internet.11 The litigant can also find the status of his case on the internet. Thus lawyers can no longer befool their clients about the actual status of the case. The Supreme court has constituted on E-committee to computerize all the courts in our country which

10 Kalyan Chandra Shekhar vs. Rajesh Ranjan @ Pappu Yadav, (2005) 3 SCC 284 11 Anupa P Kumar Patri, Cyber Law ( 2nd, Asia law House, India 2010) 76

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are about 14000 in number and inter connect them so that all information is available to any information seeker and there is complete transparency in the system. The Supreme Court has also initiated the system of e-filing of cases before it and any person sitting in any part of the country can file his case through e-filing.12 This would not only save time, energy and money of the litigant, but also eventually lead to speedy disposal of cases rendering justice when it is most needed.

Now a day we find a lot of sting operations are being conducted by media. Legislature and Parliamentarians have been caught on camera accepting money for finalizing and operationalising tasks, which they are duty bound to do. Public servants have also been caught receiving bribes. The first such incident was such as perhaps by Tehelka.com who posed themselves as International arms dealer and had access to the officials of the defence ministry and even has a meeting with a political personality at the residence of the then Defence Minister. After the tapes were broadcasted on television, there was big hue and cry in the entire country. In that case, the question arose as to how the videotapes, which was the subject matter of enquiry, can be relied upon as reliable evidence. As you know tapes can be doctored and manipulated and no finding can be solely based on tapes unless the genuineness of tapes is established. Question also arose as to how the genuineness of the videotapes can be analyzed. The expert evidence on the subject showed that when receding is done either on a video or on an audio cassette, apart from recording the voice and picture of the person which is visible and audible to the naked eye and ear, the recording device also records the surrounding sounds such sound of air conditioner, fan , traffic moving nearby, murmuring of others present, and even breathing of the person, by technical analysis and with the aid of machines, interpolation, editing etc., any

12 Sita Ram Sharma, Indian Legislation on Cyber Crime (4th, Anmol Publications Pvt. Limited, India 2004) p 76

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fault or tampering can be detected.13 Thus there are effective ways to check the authenticity of evidence recorded with the aid of modern technology.

Of course, sting operation violates the right to privacy of an individual. However, public interest is more important than private interest. Therefore, while carrying out sting operations, the following factors must be kept in mind:

1. Right to privacy is protected by article 21 of the constitution and also by article 17 of the International Covenant on Civil and Political Rights, 196614.

2. Publication of any matter concerning privacy of the citizen or his family without his consent is prohibited except where it is based on public record or court record.

3. Even telephone taping is permissible only if there is public emergency or in the interest of public safety.

4. Publication relating to acts or conducted of public official in discharge of their duty is permissible.

5. So also surveillance by the police can also be only for the purpose of prevention of crime and police does not have unrestricted right.

6. State does not have unrestricted access to inspect and seize bank documents which are confidential between the banker and customer.

13 Debarati Halder, K. Jaishankar, Cyber Crime and the Victimization of Women: Laws, Rights and Regulations (7th, Premier Reference Source, India 2011) p 65 14treaties.un.org/doc/Publication/UNTS/.../volume-999-I-14668-English.pdf

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Cyber Crime With the invention of computers and increasing use of the internet and its positive aspect, everyone has become acquainted to computers. But where there is a positive side of any aspect, there is also a negative side.15 Such a side is the cyber crime which cause harm to the computers and their users. However the harm caused to the affected can be much graver. Computer crimes committed through the internet in are extremely challenging because of their sophistication and variance from crimes in the ordinary sense.16 The internet is the boon for information seekers the work over, but it has brought with it several misuses which the countries all over the world have been trying to tackle by from of legislative, executive and judicial action. India too has taken its first step in this direction. Information Technology Act, 2000 of India is definitely among the few information technology legislations at present. Let me put forth some crimes that have come along with use of computers and internet. It includes variety of criminal offences and unlawful activities relating to or having connection to computers. A. Conventional Crimes through Computer

1. Cyber Defamation: implies defamation by anything which can be read, seen or heard with the help of computers. a. Online defamation more vigorous and effective (quantitatively) - number of people reading or visualizing the comment defaming a person might reach gigantic proportions and hence would affect the reputation of the defamed person in a much graver manner.

15 P. Taylor, Crime in the Digital Sublime (3rd, Routledge, London 1999) 251

16 P. Madhava Soma Sundaram and Syed Umarhathab, Cyber Crime and Digital Disorder (1st, Manonmaniam Sundaram University Publication Office, India 2011) p 109

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b. Offline defamation (qualitatively): defaming message can be posted to selective specific groups. Example: a business group in case one wants to defame another business group.17

2. Corporate Cyber smear: false and disparaging rumor about a company, its management or its stocks posted on the Internet especially in stock market and financial sectors. Section 4 read with 75 of IT act deals with cyber defamation. Section 4 gives legal recognition to electronic records.18 It provides that any information or any other matter in writing or typewritten or printed form, such requirement would be deemed to have been satisfied if such information is rendered or made available in electronic form and accessible so as to be useable for a subsequent reference. If any defamatory information is posted on internet either through e- mail or chat rooms or chat boards, such posting would be covered under the same section.19

3. Digital forgery: As regards forgery through printers and scanner using sophisticated computers by developing counterfeit currency, postal cards , revenue stamps, mark sheet etc., Section 91 of IT Act amended the provisions of IPC in relation to 'forgery' to include 'electronic records' as well.20

17 H Saini, ' Cyber-Crimes and their Impacts: A Study' [2010] 8, 59

18 Rohas Nagpal, Cyber Crime and Corporate Liability (3rd, CCH, India 2008) p 231

19 FAA Jana, ' A survey of Indian Cyber crime and law and its prevention approach' [2009] 7, 78

20 Grabosky, P., R.G.Smith, & G.Dempsey, Electronic Theft: Unlawful Acquisition in Cyberspace (8th, Cambridge University, Cambridge 2001) 187

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4. Cyber Stalking / Harassment: Stalking generally involves harassing or threatening behavior that an individual engages in and does repeatedly such as following a person, appearing at a person's home or place of business making harassing phone calls, leaving written messages. Cyber stacking means that person is followed and pursued online. Privacy is invaded by such intrusive actions.21

5. Online Gambling: Virtual Casinos based in other countries where gambling's legal, use of computer as a medium for gambling services on the Internet from countries where gambling is permitted and players from countries were gambling is illegal play and bet.22 Gambling is prohibited by the Public Gamblic Act, 1867.

6. Sale of Illegal Article: Sale of articles which otherwise are not permitted to be sold under the law of the country like drugs, guns, pirated software or music, illegal collection and distribution of data on private person and organizations. The computers are used as a tool to reach out to a wider market.

7. Intellectual Property Crimes: Software piracy, copy right imprisonment, Trade Marks violation.

8. Cyber pornography: It refers to stimulating sexual or other erotic activity over the internet. Example - pornographic magazines produce using computer to publish and print; Internet to download and transmit pornographic pictures, photos, writings; etc. The issue of cyber pornography has been dealt with under section 67 of IT Act where

21 AP Mali, ' IT Act 2000 » Types of Cyber Crimes & Cyber Law in India' [2003] 6, 65

22 P. J. Alexander, Policing India in the New Millennium ( 3rd, Allied Publishers, India 2002) 998

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publishing of information which is obscene in the electronic form has been made an offence.23 In that respect one shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and fine which may extend to one lakh rupees; and on a subsequent conviction for a term extended to ten years and also with fine which may extend to ten years and also with fine which may extend to two lakh rupees.

9. Internet fraud and financial crimes: These includes any type of fraudulent schemes that use one or more components of internet such as chartrooms, e-mails etc.

Fraudulent Schemes

a) Online option and Retail Schemes Online: Typically purport to offer high value items at cheaper rates. Victims send money for promised items but then delivered nothing or altered goods.

b) Business Opportunity/ Work at Home Scheme Online: Internet is used to advertise purported business opportunity. Victims pay several hundred dollars to get information but in return advertisers fail to deliver the material or information needed to make work at home opportunity a reality.24

B. Crimes Committed on a Computer Network

23 K. Jaishankar, Cyber Criminology: Exploring Internet Crimes and Criminal Behavior (2nd, CRC Press, India 2011) 109

24 Poonam Kumar, the Perpetration and Prevention of Cyber Crime and Cyber Terrorism: An Indian Perspective (2nd, Lambert Academic Publishing, USA 2012) 35

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1. Hacking: Any unauthorized access to computer system is known as Hacking. Fastest growing computer crime for multiple purposes like data theft, fraud, destruction of data, causing damage to the computer system or for mere pleasure.25 Section 66 of I.T. Act deals with hacking and Section 70 (punishment) of I.T. Act deals with computer system and whoever commits this crime shall be punished with imprisonment up to three years or with fine which may extend upto two lakhs rupees or with both.26 Hacking of a protected system is punishable under Sec.70 of I.T. Act which shall be punished with imprisonment which may extent to ten years and shall also be liable to fine. 2. Denial of Service: To prevent Legitimate users of a service from using that service. For e.g. 1. Attempts to flood (jam) a network preventing legitimate network traffic; 2. Attempts to disrupt connection between two machines; and 3. Attempts to disrupt service to specific system of a person Section 43 (f) of I.T. Act specifically provides for penalty in case anyone is found guilty of causing denial to access.

C. Crimes Relating to Data Alteration Destruction

1. Virus: It is a programme that searches out other programme and infects them by embedding a copy of it in them. Section 43(c) of the IT Act covers the area of introduction of viruses etc. and shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.

25 R Broadhurst, 'Project MUSE - Cyber-Crime' [2004] 5, 98 26 Vivek Sood, Cyber Law Simplified (4th, Tata Mc-Graw Hill, India 2008) 323

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2. Warm: A programme that propagates itself over a network reproducing itself as it goes. Worm unlike virus does not require a medium to propagate itself and infect others.27

3. Trojan Horse: It is a malicious and security breaking programme. Virus writers often use names of attractive women to spread in such software.28

4. Theft of internet hours: This refers to using up or utilizing of somebody else‘s internet service. Section 43(h) of IT Act addresses the issue of internet hours.29

5. Salami Attacks: This attack is used for the commission of financial crimes. Criminals make alteration so insignificant that in single case it would go completely unnoticed, for e.g.

A bank employee deducts a small amount from accounts of every customer and gets transfer to bank employees.

6. Web jacking: It is the forcefully taking control over a website

7. Data diddling (cheating): Kind of attack involving alteration of raw data just before it is processed by a computer and then changing it back after the processing is completed. Section 66 of the IT Act deals with such kind of crimes. The guilty person is liable to pay damages.30

27 Atul Jain, Cyber Crime: Issues and Threats (1st, Central Law Publication, India 2008) 20

28 Dr.B.Muthukumaran, ' CYBER CRIME SCENARIO IN INDIA' [2009] 10, 35

29 Marjie T Britz, Computer Forensics and Cyber Crime: An Introduction, 2/e (2nd, Pearson, India 2010) 212

30 A Mitra, ' Cyber Crime and the Police - Government of Orissa' [2008] 7, 67

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8. Stegenography: I t is the process of hiding one message of file inside another message or file steganographers can hide image inside another image or an audio or video file inside any other media file.31

D. Crime Relating to Electronic Mail

1. E-mail spamming: Spam means to crash a programme to over running a fixed size buffer with excessively large input data.

2. E-mail spoofing: Spooled e-mail is one which appears to originate from one source but actually has been sent from other source.

Conclusion: While discussing Cyber law we must always attempt or endeavor to make the benefits of the technology being made available to the poor and rural sections of the society. Its benefits should not be confined to the rich and the mighty in the urban sector alone. I hereby would like to appeal to the experts participating in the long day seminar to kindly give a serious thought of making the benefits of long technology available far and wide. The technology should be cheap, accessible and user friendly and less intricate to that those who are not technologically literate can also make proper and effective use of technology for the benefit of one and all. We have recently read in the newspapers that certain persons have spent 22 to 50 years in jail as under trials as they were sent to mental asylums on the ground of not being mentally fit to undergo trial.32 This has resulted because there has been no follow up after they were sent to the mental asylums and these persons spent decades in the jail without facing any trial. Many of these people, who are all from the economical backward section of the society,

31 Nir Kshetri, Cybercrime and Cyber security in the Global South (2nd, CRC Press, India CRC Press) 109

32 'Cyber Law' (Cyber Cell Mumbai ) accessed 2 September, 2013

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could probably have been innocent as well and in many cases they have spent more years in mental asylum than the maximum sentence prescribed for the said offence. These incidents of utter violation of human rights would not have occurred if the records could have been kept electronically which are easy to access and monitor. The Supreme Court of India has taken up the issue very strongly.

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HURDLES WHILE INVESTIGATING CRIME

Ayushi Srivastava* Ayush Jaiswal**

INTRODUCTION

“Freedom without law degenerates into anarchy and law without freedom is tyranny.”

- Charles Wagg-Prosser

The main aim of the Criminal Justice System in all civilized countries of the world is to maintain freedom of their citizens, especially in the Common Law Countries it works on the principle of ―innocent until proven guilty.‖ Law is made for smooth and proper functioning of the society so that people have a clear demarcation as to what is wrong and what is right. The law has assigned different roles to different authority so as to protect the interest of the society. Where there is any violation in the functioning of law it leads to a chain of action, like F.I.R, investigation, inquiry, trial, judgment and so on.

The moment an F.I.R is lodged, the duty of the Police to investigate fairly begins. Every accused in the society wants to be given a clean-chit. Although crimes are committed but then the accused always try to go scott free. And it is a very fact that the accused always wants to be a step ahead, so as to save his tail by fabricating the evidences, therefore creating hurdles in the process of investigation. This leads to initialization of concocted evidence and other hurdles which the police have to go through.

______

* Student, Damodaram Sanjivayya National Law University, Visakhapatnam

* * Student, Damodaram Sanjivayya National Law University, Visakhapatnam

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Although the process of investigation has developed but then every coin has two faces. So is the case with investigation. The police and the investigating authority try hard to get the evidences; the suspicious accused tries hard to destroy or to fabricate them. Although the main aim of investigation is not to find evidences against a person, but to find the truth as to who is innocent and who is not.

WHAT IS INVESTIGATION?

Investigation has been defined under Section 2(h) of the Code of Criminal Procedure, 1973.1 It primarily means scrutinizing facts and circumstances of the case. It is the first step taken when an F.I.R is filed. It includes the efforts of a police officer for collecting of evidence; starting from, proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of the suspected offender; collection of evidence relating to the commission of offence, which may consist of the examination of various persons including the accused and taking of their statements in writing and the search of places or seizure of things considered necessary for the investigation and to be produced at the trial; formation of opinion as to whether on the basis of the material collected there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for filing the charge-sheet. Investigation ends in a police report to the magistrate.2

From the above definition the points which are to be taken into account are:

 Investigation is a proceeding.  Which is undertaken by a police officer or a person authorized by a Magistrate to investigate.  Its main purpose is to collect the evidences.

1Investigation includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

2 http://www.article2.org/mainfile.php/0702/313/, last visited: 17 March 2014, 4:56 P.M.

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 For ascertaining as to whether an offence has been committed.  If the investigation reveals that no offence has been committed, the case may be filed and no action is taken.

HURDLES WHILE INVESTIGATING A CRIME

Investigation, although it sounds like an easy job but in reality, it is not. There are many hurdles and bars which the police have to face while investigating a case. The main reasons for the same are:

Art. 21 of the Constitution of India provide Right to life and personal liberty3 to its citizens. In the process of investigation if a person is detained then there has to be concrete evidences for the same. As a result many times the prime accused are given bail under Section 436 of Crpc4, which gives a chance to the accused to indulge in some mal practice so as to save him.

Everyone wants to live the life of a free bird, even if they commit. An accused tries his/her best to save them from going behind the bar while on the other hand; an innocent who is framed in some crime tries to prove his innocence.

3 No person shall be deprived of his life or personal liberty except according to procedure established by law. 4 (1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A. (2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.

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 Hurdles in investigation

When an F.I.R is filed it leads to an immediate action in terms of investigation. As no one wants to be behind the bars, so is the case with the criminals or the suspicious accused; who wants to save its tail. It is not only part of the accused that start creating hurdles but there are many other factor which act as an obstacle while investigating a crime. It shall be dealt point wise in this paper.

 People reluctant to seek the help of law

Usually in the Indian scenario the people are reluctant to go to the police. As going to a police station brings a blot on their honour. This usually happens in the cases of Rape. Also, people try to avoid the paperwork which is done in the process of investigation as according to them it is very time taking; long and tedious therefore they try to negotiate the case by themselves.

 People are ignorant about law

India is a country with a literacy rate of 74.04%. With more than half of India‘s population still residing in the country side. People are usually ignorant about the law and thus fail to register the case. Even if they want to register the case then there comes the problem of jurisdiction as to in which Court to file the case. As it happened in the case of Esther Anuhaya where there was a delay in filing of F.I.R because of confusion of jurisdiction as to where to file the case.

 Tedious process of F.I.R

Although under Section 154 of CrPc5 which talks about Information in cognizable cases, it allows a police officer to write an F.I.R of any cognizable

5 (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in

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offence and start the investigation process immediately, but under section 155 of CrPc it prohibits a police officer to make investigate a non-cognizable offence without the prior permission of a Magistrate.

 Reluctant to help the police

Section 39 of CrPc6; deals with the duty of public to give certain information of the offence. It clearly says that the public has a duty but it is not mandatory to give information. The lacuna of this was clearly highlighted in the case of Sidhartha Vashisht @ Manu Sharma vs State7 the witness denied to help the police.

 Fabricating Evidence

This is one of the most important hurdles which the police faces while investigating a crime. It includes

writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. 6 Every person, aware of the Commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely: — (i) sections 121 to 126, both inclusive, and section 130 (that is to say offences against the State specified in Chapter VI of the said Code); (ii) sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code); (iii) sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification); (iv) sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc); (v) sections 302, 303 and 304 (that is to say, offences affecting life); (va) section 364A (that is to say, offence relating to kidnapping for ransom, etc); (vi) section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft); (vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity); (viii) section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc); (ix) sections 431 to 439, both inclusive (that is to say, offence of mischief against property); (x) sections 449 and 450 (that is to say, offence of house-trespass); (xi) sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and (xii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes) shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such Commission or intention; (2) For the purposes of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India. 7 Criminal Appeal No. 179 of 2007.

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Fabrication-

It means creating false evidence or suppressing the evidence to sway a verdict. As this was done in (Arushi Talwar case) Rajesh Talwar vs C.B.I & Ors.8 and Dr Mrs Nupur Talwar vs C.B.I Delhi And Anr9, where the accused tried to fabricate the evidence at every step. Section 192 of IPC, 186010, deals with fabricating evidences.

Perjury-

It is the offence of wilfully telling untruth or making a misrepresentation under oath in the Court of Law. Section 191 of IPC, 186011, deals with giving false evidence. It includes the statements retracted later as the person is presumed to false given a false statement earlier or later, when the statement is retracted. Under section 191 of IPC12, an affidavit is evidence and a person swearing to a false affidavit is guilty of perjury punishable under Section 193 IPC13 which prescribes the period of punishment as seven years imprisonment. In the final judgment of Sidhartha Vashisht @ Manu Sharma vs State, the main witness

8 Special Petition (Crl.) No. 7966 of 2013. 9 Criminal Appeal No. 68 of 2012. 10 Whoever causes any circumstance to exist or makes any false entry in any book or record, or makes any document containing a false statement, intending that such circumstance, false entry or false statement may appear in evidence in a judicial proceeding, or in a proceeding taken by law before a public servant as such, or before an arbitrator, and that such circumstance, false entry or false statement, so appearing in evidence, may cause any person who in such proceeding is to form an opinion upon the evidence, to entertain an erroneous opinion touching any point material to the result of such proceeding, is said "to fabricate false evidence". 11 Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence. 12 Ibid9. 13 Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine, and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

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was found giving a false statement and thus was later on tried for perjury under Section 19114 and was later on punished under Section 193 of IPC15.

Fabricating forensic data-

It includes postmortem, science of D.N.A investigation which is fabricated at the hands of power and money.

Hiding evidences-

Section 201 of IPC16 deals with causing disappearance of evidence, or giving false information to screen officer. In this many times the evidence are hidden or are tampered so as to create hurdle in the process of investigation.

 Innocent until proven guilty

This is one of the most important rights of an accused under the Common Law, that an accused is presumed to be innocent until and unless there are concrete

evidences to prove him guilty. As a result even after knowing that a person is the culprit the trial keeps on going. As was there in Kasab case17, where even though everything was against him but still the trial kept on going.

14 Ibid9. 15 Ibid11. 16 Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence- shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life- and if the offence is punishable with 104[imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment- and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one -fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.

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 Hostile witness

Even when the police are successful in gathering evidences and witnesses, many times the witnesses retract their statements. As a result it changes the whole course of the case. Since, under Section 25 of Indian Evidence Act, 187218 confession made to a police officer is not taken in account by the Court, as a result many times even if the accuse or the witness confesses to the police about the actual scene of crime and later on alters the statement in front of the magistrate, under the Indian law nothing can be done as there are no provisions as such for the same.

 Easy going, relaxed process of investigation

In India the process of investigation, trial keeps on going for years. There is no concrete timeline setup for the start and completion of the investigation process. The best live example is that of the Bhopal Gas Tragedy Case19, where it took 25 years for the final judgment after the due process of investigation and trial. In fact the Babri Majzid case20 goes on the same line.

 Corruption

This is one of the most important and contemporaneous reason of all. The whole investigation process is hindered at the hands of money. The culprit goes scott free. The evidences are fabricated, are destroyed by filling the pockets

 Stress on a Police Officer

Although India is the second most populous country in the world but it lacks in terms of number of police officer appointed per number of persons. As a

17 Md. Ajmal Md. Amir Kasab @Abu Mujahid v. State of Maharashtra, Criminal Appeal Nos. 1899-1900 of 2011. 18 No confession made to a Police officer shall be proved as against a person accused of any offence. 19 Union Carbide Corporation v. Union of India etc, 1990 AIR 273, 1989 SCC (2) 540. 20 Ismail Faruqui v. Union of India, 1995 AIR 605, 1994 SCC (6) 360.

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result it becomes very tedious and stressful for a police officer to cope up with the investigation process. Not only is the number of police officer less but India lacks in technology as well as the investigating authorities are not very well equipped.

 Medical Evidences

Section 5321, 5422 of CrPc, deals with medical examination of an accused. Although the provisions are there for medical evidences but what if there is delay in medical examination of the body and of the accused, many times evidences get corrupted, like finger prints. There it leads to a hurdle.

 Natural Hurdle

This includes natural calamity earth quake, tsunami etc, which creates hurdles in the process of investigation.

21 (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. 22 When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

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CONCLUSION

The purpose of law is to serve people and investigation is a vital part of law. Lacunae can be always pointed in terms of investigation; however, the radius of loopholes engulfs law as well. The citizens should be sensitized, so that they are not reluctant to seek the help of law. They should be enlightened through the awareness programs by the government. The number of police officer recruited should also be increased, so that they are at par with the number of police officer per citizen ratio. Also, there is a dire need for the up gradation of technology, so that it becomes easy to find and scrutinize the evidences. Strict punishment should be to the person who is found fabricating the evidences.

The whole mindset has to be changed. Laws for investigating in case of any disaster should be made, like in the disaster management squad, efficient investigating authorities should be appointed. In the case of Prakash Singh & Ors vs. Union of India and Ors23, the problems highlighted were:

No present established meaning in law or conventions in practice that indicate the limits of political ‗supervision‘ and ‗control‘ over the police. This has lead to unfettered and undue interference by politicians in the everyday functioning of the police, disrupted the authority of supervisory cadres within the force and obscured command responsibility;

No rationale system for evaluating police performance against a set of pre- determined criteria.

And the solution given was:

The creation of a State Security Commission made up of both the responsible minister, the leader of the opposition, other elected representatives, experts, and credible members of civil society. Its functions are to lay down policing

23 (2006) 8 SCC 1

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policy, indicate performance criteria and keep police performance, challenges and its needs under review. The Commission is a means of conditioning and defining the powers of the political executive and police and clarifying each ones sphere of responsibility and accountability. Its composition is designed to ensure bipartisanship and shield policing from changes in political power by keeping policies more or less constant. Its functions are designed to ensure that the political executive always has ultimate responsibility for providing the public with efficient, honest, unbiased and accountable policing while retaining authority over the police.

At present, there is no well-established system of performance evaluation. The commonly used parameters for assessing performance on the basis of increase or decrease in crime statistics are inadequate. This means of measuring performance has led to the practice of refusing to register cases and disguising statistics. The new system opens up the possibility of consistent and holistic evaluation of the police on the basis of pre-determined planning, provisioning and rationalized performance parameters which would pave the road to better and better policing year on year.

To sum it up, ―It‘s not the procedure, neither the substantive law which needs amendments; it‘s indeed the execution on every level, which needs a sudden bulwark.‖

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CRIMINAL RESPONSIBILITY OF A JUVENILE IN INDIA VIS-A-VIS OTHER JURISDICTIONS IN THE WORLD

Kanika Saran and Kriti Saran*

INTRODUCTION

Kenzie Marie Houk lying on her bed in Western Pennsylvania Farmhouse could not have foreseen the events that were yet to be unfolded. She was eight months pregnant and was shot by 11 year old.1 Neither could an 8 year old girl who was raped by a 14 year old boy in Kent, Washington.2 Nor could the 23 year old female physiotherapy intern who was beaten, assaulted and gang raped by 6 men in a moving private bus, where one of the assaulters was a 17 and half year old.3 These incidents have shocked the conscience of humanity. The tragic link between the three cases across different jurisdictions is increasing number of heinous crimes committed by juveniles. In the first case Jordan Brown was charged for shooting and adjudicated guilty. He was initially tried as an adult but after spending three years in detention he was tried as a juvenile. In the second case, the 14 year old was initially booked into juvenile detention for rape but later was charged as an adult with heavy fine. While in the ‗Delhi Gang-Rape Case‘ the 17 and half year old boy was tried as a juvenile and was sent to detention facility for a period of 3 years.

Comparing the juvenile justice laws as USA had not ratified the UN Convention on the Rights of Child 1989; they recommended the retributive

*Authors are students of 4th Year, Amity Law School, Delhi and 3rd Year Campus Law Centre Faculty of Law, University of Delhi respectively. 1 Wampum, '11-Year-Old Charged in Shooting Death of Pregnant Woman in Pennsylvania' Fox News (Pennsylvania,21 February,2009) 2 Komo, ‗Teen who raped 8-year-old girl gets 93-month prison sentence‘ Komo News( Washington. 25 July,2014) 3 Shubhomoy Sikdar, ‗Delhi gang-rape: victim narrates the tale of horror‟ The Hindu (New Delhi, 23 December, 2012)

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juvenile justice policy. Michigan‘s Juvenile Waiver Law passed in 1997 lays down that juvenile can be tried as an adult.4

In the landmark judgment by the US Supreme Court in Roper v. Simmons5 it was held that it was unconstitutional to award death sentence to juvenile offenders who were below the age of 18 years. In Graham v. Florida6 it was laid down, juvenile offenders will not be sentenced to life imprisonment without parole for non-homicide offences (Excluding murder). In Miller v. Alabama7 it was laid down that court could sentence the juvenile under the age of 18 years for life imprisonment. The judges have to consider the defendants nature of crime. Through these landmark judgments we can infer that the juvenile justice system does not provide immunity to all the juvenile offenders; the punishment is subject to the nature of crime and its background.

Whereas under the Indian Juvenile Justice system, the Juvenile Justice (Care and Protection of Children) Act, 2000 was enacted it provided a blanket of immunity to all the juveniles below the age of 18 years against all crimes committed. The maximum punishment provided under this Act if for three years in a remand home.

After the Delhi Gang Rape, with the powerful public sentiment prevailing against such grave offences8 the authors are of the opinion that it is time for the legislature to amend the laws and to deny the special status given to juveniles.

4 Dr. Arvind P. Bhanu,‖ Juvenile Criminal Responsibility: Need to Address the Issue Through Other Jurisdictions of World‖ (2014) 3(1) IJSR < http://theglobaljournals.com/ijsr/articles.php?val=MjM4NA==&b1=265&k=67> accessed on 4th September, 2014 5 543 U.S 551(2005) 6 130 S.Ct.2011(2010) 7 132 S.Ct.2455(2012) 8 Aditya Kalra, Arnika Thakur, „Delhi gang rape sentencing: reactions from people on the street‘ (Reuters, 13 September,2013) < http://blogs.reuters.com/india/2013/09/13/delhi-gang- rape-sentencing-reactions-from-people-on-the-street/>

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JURISPRUDENCE BEHIND JUEVNILE JUSTICE LEGISLATIONS:INTERNATIONAL AND INDIAN SCENARIO

To meet the concerns of the world community regarding the urgent need to secure the welfare of children, Geneva Declaration of 1924 was laid down. It was the first international document which attempted to provide the children basic necessities of life and protect them from exploitation. In India, the Guardian‘s and Wards Act 1890 was the successive legislation to the Apprentice Act 18509 and the Reformatory School Act 187610 for juvenile delinquents in conflict with law. Later the Indian Jail Committee paved the path for Indian Children‘s Act 1960.The legislation was followed by Juvenile Justice Act 1986.

In 1989 UN Declaration on Rights of Child11 was laid down and was the first universally recognized legally binding international treaty for setting up norms and standards for protection and promotion of children. India had ratified this treaty

The minimum requirements for the juveniles were recognized by the UN Standard Minimum Rules for Administration of Juvenile Justice (The Beijing Rules, 1985)12. The final developments on International jurisprudence that have influenced the Juvenile Justice Act 2000 were UN Guidelines for Prevention of Juvenile Delinquency (hereinafter the ―Riyadh Guidelines‖)13 and UN Rules for Protection of Individuals Deprived of their Liberty(hereinafter the ―Havana Declaration‖)14. Post – Independence, The

9 Government of India. The Apprentices Act, New Delhi, Publication Division, 1850 10 Government of India. The Reformatory School, New Delhi, Publication Division, 1876. 11 United Nations Declaration on the Rights of the Child, November 20, 1959 GA res.1386 (XIV), 14 U.N. GOAR Supp.(No.16) at 19, U.N.Doc. A/4354(1959) 12 United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29, 1985, UN GAOR A/RES/40/33 13 UN GAOR A/RES/45/112, (Dec 14,1990) 14 UN GAOR A/RES/45/113,Annex 45, UN GOAR Supp. (No.49A) at 205, Dec 14, 199

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Constitution of India was laid down and under Article 15(3), 21, 24, 39(e), 45 and 47 were enacted in favor of woman and children. Lastly the Juvenile Justice Act 2000 was enacted and was a successive legislation to the ‗JJ Act 1986‘ and amended the laws for children in conflict with law and in need for care and protection. Legislations for protection of children were enacted for their welfare. The author discusses the issue why the legislations need an amendment with respect to the age factor and the criminal responsibility of a juvenile in the changing socio-cultural and economic environment.

PRESUMPTION OF AGE AND CRIMINAL RESPONSIBILITY OF A JUVENILE

The issue of determination of age was well settled by the Juvenile Justice Act 2000 defining ―juvenile‖ under Section 2(k) as a person who has not completed eighteenth year of age. There have been instances of grave crimes committed by juveniles and given immunity under the Act but this issue of protection or immunity to juveniles on commission of heinous crimes was highlighted in the Delhi Gang Rape like never before. A 23 year old para- medical student was gang- raped and brutally assaulted by six men in a private bus. One of the assaulters was a seventeen and half year old. The juvenile was convicted for rape and murder and was tried under the Juvenile Justice Act 2000 and given a maximum punishment of three years in remand home.15 The other offenders were also held guilty for rape and murder and were sentenced to death as the case was ‗rarest of the rare‘ and had shocked the collective conscience of the country.16

The Juvenile Justice At was enforced after a lot of discussion and debate. It is said to be one of the most progressive legislations in the world. Complying

15 Ramalingam Vallinayagam, ‗Fast track courts awards death sentences to convicts of Delhi Rape case‟ Le journal international, 2013 16 Neha Sharma, ‗Delhi gang rape: Four sentenced to death‘ BBC News (New Delhi,13 September 2013)

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with the International standards and protocols though the legislation has been enforced but it still lacks implementation with the dynamic social and cultural environment. In the current scenario it can be said that children now days attain maturity faster and in earlier days. Thus they are mature enough to know the act committed by them and the consequences of the same. Thus the number of crimes by juveniles is increasing. According to the Report of National Crimes Record Bureau 201217, 1175 minors were booked for rape in India and from 1149 in 2011 out of which 881 minors were in the age bracket of 16-18 years.

The age of criminal responsibility in criminal law is different for each country. Referring to Section 82 under IPC, it provides that nothing is an offence when done by a child under age of 7 years. Under Section 83, it states that nothing is an offence if done by the child below seven years and under twelve years who has who has not attained sufficient maturity to understand the consequences of his conduct. Under Indian criminal jurisprudence the age of understanding was fixed at 12 years. Section 2(k), 2(l), 15, 16 should be re-considered under the Juvenile Justice Act 2000. In authors opinion where in the ―Nirbhaya‖ gang- rape the seventeen and half year old juvenile had the maturity and audacity to commit such a heinous offence he should be tried in the similar way and should be denied protection under the Juvenile Justice Act. The juvenile was almost likely to become a monster in society and poses a great threat to others in view of his criminal propensities.18 The Constitution of India guarantees right to life and liberty to all the citizens of the country enshrined under Article 21. It provides right to live with dignity and peace without being subjected to violence. The Supreme Court held that the right does not refer to mere ―animal existence‖ but right to live with dignity‖19. By giving juveniles

17National Crime Records Bureau, Crime in India 2012 (June 4,2013) 18 Mukesh Yadav, Pooja Rastogi, “Age of Criminal Responsibility of Juvenile in India vis-a- vis Global Scenario: A Critical Review” (2013) (35) 1 J Indian Acad Forensic Med. http://medind.nic.in/jal/t13/i3/jalt13i3p262.pdf> Accessed on 5th September 2014 19 State of Maharashtra v. Chandrabhan, AIR 1983 SC 803

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an absolute immunity under the JJ Act, it exposes the citizens to category of people prone to criminal activity. It was suggested that the JJ Board should be conferred with discretion to charge the juvenile as an adult in heinous crimes which otherwise is only 3 years under the JJ Act.

According to UN Convention on Rights of Child20 Article 1 lays down that a ―child‖ means every human being below the age of eighteen years unless the law applicable to the child the maturity is attained earlier. Interpreting this in the context of the Delhi Gang Rape Case, one of the assaulters the seventeen and half year old boy if had the maturity to commit such a heinous crime, he should be presumed to be mature enough to understand the consequences of his actions. Punishment for three years in remand home will not deter the juveniles but will encourage them to commit such offences as ultimately they will be protected under the blanket of immunity provided to them under the JJ Act. It was unconstitutional and is in violation to Article 14 right to equality, by treating all the juveniles under the same bracket irrespective of the gravity of offence.

Section 16(1)21 lays d own that no juvenile should be sentence to death or life imprisonment, once the juvenile has attained the age of 16 years and the board is satisfied that offence committed is so serious that it is not in his best interest to send him to remand home, the juvenile should be sent to special home and be detained in place of safety. Thus even if the juvenile commits a heinous crime and it is not in best interest to send him to a remand home with a fear that he might commit the similar crime again, the law states that he should be detained in a special home. Such provision needs to be re-considered by the legislature and amendments should be made to try juveniles as adults. In order to determine the age of juvenile under Section 49(1)22, once it appears to the competent authority that the child is within the scope of the provisions of the

20 Supra note.10 21 The Juvenile Justice (Care and Protection of Children) Act, 2000 22 Supra note 21.

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act, they conduct and inquiry to determine the age of the juvenile, take evidence and record the finding whether a person is juvenile or not. In order to determine the age of the juvenile it can be determined either by medical or documentary evidence.

In Jaya Mala v. Home Secretary, Government of Jharkhand23 it was held that age ascertained by medical examination is not conclusive proof of the age. It is a mere opinion of the doctor and can have a 2 year margin on either side. In Bhoop Singh v. State of U.P,24 in a conflict between documentary evidence and medical report the documentary evidence will be considered to be correct. Furthermore to determine the question of juvenility Section 7A25 was inserted. It discusses that the age of juvenile should be determined on the date of commission and not the age when the juvenile appeared in the court. In Pratap Singh v. State of Jharkhand26 it was held that the reckoning date for the determination of the age of the juvenile is the date of the offence and not the date when he is produced before the authority in the court. Over-ruling the judgment in Babloo Passi v. State of Jharkhand27 it was held that no fixed norm is laid for determination of age of a person and the juvenile should be judged on his merit. After few unsuccessful attempt to amend the laws under the JJ Act, another attempt was made my filing a public interest litigation in Salil Bali v. Union of India28 seven other writ petitions and transfer cases were decided commonly praying to declare the JJ Act 2000 ultra-virus of the Constitution, and to try juveniles as adults in heinous crimes. The court held that as India is a signatory to the International Covenants, the purpose of enforcing and enacting JJ Act 2000 was re-integration and rehabilitation and avoiding penal measures. The court further discussed the question of juvenility and it was held that the human brain continues to develop till one attains the

23 AIR 1982 SC 1297 24 AIR 1989 SC 1329 25 The Juvenile Justice (Care And Protection Of Children) Amendment Act, 2006 26 AIR 2005 SC 2731 27 2008 (13) SCALE 137 28 (2013) 7 SCC 705

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age of 18 years and by then he is able to understand the consequences of his action thus the juvenile should be protected. Considering the above the court dismissed the writ petitions.

Recently in Dr. Subramanian Swamy and Ors v. Raju through Member Juvenile Justice Board29under this writ petition Dr. Swamy prayed that the test for juvenility is not the age but the level of mental maturity of offender. He contended that the blanket immunity is in violation of Article 14 of the Constitution, by treating all the juveniles in the same way irrespective of gravity of offence. He also contended legislative over-reach in enacting the act. The court dismissed the writ petition and states as there is separate framework to try the delinquents and classification is made to acknowledge international obligation it is not in violation to the Constitution and further laid down that by adhering to the prayer of the petitioner, the judicial interference by the judiciary will be an infringement in the domain of legislature.

In authors opinion the law is sensitive towards the juveniles and is not progressive with the changing socio-economic environment of the country.

JUVENILE JUSTICE LEGISLATIONS IN OTHER COUNTRIES

CANADA

Before 1908, the juvenile in conflict with law were treated like adults and received harsh punishments for serious crimes. In 1908, Juvenile Delinquents Act was formed and took a social-welfare approach. The shift in ideology was the ‗parens patraie‘ or pseudo parental role of the judges while granting sentences to juveniles. Furthermore they emphasized on rehabilitation rather than giving serious punishments. It emphasized that the care, custody to a

29 Criminal Appeal No. 695 of 2014, Arising out Of SLP (Crl.) No.1953 of 2013, judgment delivered on March 28,2014

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juvenile should be given like a parent and juvenile should not be treated as a criminal but as a ‗misdirected and misguided child‘30. This act was replaced by Young Offenders Act, 1982. The enactment of the act shifted the ideology from social welfare approach to criminal responsibility of juveniles for their actions. However the act was criticized for being lenient. Finally the Youth Criminal Justice Act was enacted in 2003 and provided framework for a fairer and effective justice system31. The act expresses a need for social accountability of juveniles by consequences proportionate to the nature of the offence32. Under this act the age of criminal responsibility is 12 years and Section 83 of IPC is pari-materia with Section 13 of Code of Criminal Procedure of Canada

In recent amendments in Youth Criminal Justice Act, now a youth of 14 years or older charged with murder, attempt to murder, manslaughter, or aggravated sexual assault will be treated as an adult33. In R v. D.B34 the Canada Supreme Court held that the test for imposition of adult sentence has been revised and the onus is always on the crown if it decides to seek one, by satisfying the appropriateness of adult sentence. The act stipulates that factors such as nature, gravity of offence, age, maturity and previous criminal record of the juvenile must be taken into consideration before the adult sentence is pronounced.

UNITED KINGDOM

Children accused of crimes were tried under the Children and Young Person Act 1933. Under Section 5035 the age of criminal responsibility was 8 years

30 Section 38, Juvenile Delinquents Act, 1908 31 Dept. of Justice, Govt. of Canada, The Youth Criminal Justice Act, Summary and Background, (24 December,2013) 32 Dept. of Justice, Govt. of Canada, The Youth Criminal Justice Act, 33 Dept. of Justice, Govt. of Canada, Recent Changes to Canada's Youth Justice System, (24 December,2013) 34 (2008 SCC 25) 35 Children and Young Offenders Act, 1933

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but according to Section 16(1)36 the age was increased from 8 years to 10 years. Until 1999 it was presumed that children aged below 14 years were incapable of understanding good and bad, right or wrong and could not commit offence37. In J.M v. Runeckles38 it was held that this presumption was rebuttable if it could be proved by prosecution that the juvenile was aware of committing serious wrong and was not merely naughty or mischievous. This presumption was abolished under Section 34 of Crime and Disorder Act 199839.

UNITED STATES OF AMERICA

Prior to the progressive era (1900-1918) in USA, child offenders over the age of 7 years were imprisoned like adults. In 1899 the juvenile system exercised its authority in paternalistic nature towards the juvenile delinquents40 . Earlier the juveniles did not have any constitutional rights. In Re-Gault‘s Case41 it was held that the juveniles accused of crime in a delinquency proceeding must be given due process rights as adults. There was a progression in law after the Edward O‘Brien Case. O‘Brien was fifteen year old at the time of commission of crime and was charged with murder for stabbing his best friend‘s mother 93 times leading to her death42. William Weld, then Governor of Massachusetts said that in this regard the society has an obligation to exact retribution only by facilitating the transfer of violent offenders to the adult system, will

36 Children and Young offenders ,Act 1963 37 Sally Lipscombe, ―The age of criminal responsibility in England and Wales” (2012) House of Commons Library https://www.gov.uk/age-of-criminal-responsibility> accessed on 7th September,2014 38 (1984) 79 Cr. Appeal R 255 39Secretary of State for Home Department, ―No more excuses: A new approach to tackle youth crime in England and Wales, http://webarchive.nationalarchives.gov.uk/+/http://www.nationalarchives.gov.uk/ERORecords /HO/421/2/P2/cpd/jou/nme.htm 40 ABA Division for Public Education, ―The History of Juvenile Justice‖ available at < http://www.americanbar.org/content/dam/aba/migrated/publiced/features/DYJpart1.authcheck dam.pdf> 41 387 U.S 1 (1967) 42 Leah Ray, ‗Teen-Ager Charged in Slaying Of His Best Friend's Mother‟ New York Times (New York, 30 June,1995)

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retribution be properly attained43. This judicial decision triggered the emergence of ―legislative waiver‖ as a concept in 1996 statue44. The Massachusetts General Law balanced the interest of the society by rehabilitating the juvenile offenders as well as incorporating theories of punishments and deterrence as well. The concept of ‗legislative waiver‘ mandates the automatic transfer of a juvenile accused of first or second degree murder to adult courts45 . Furthermore there is a provision defining a new category of offenders ―youthful offenders‖ comprising of juveniles between ages 14 and 17 who are accused of offences punishable under ordinary criminal court46. The state has also reduced the confidentiality quotient with respect to juveniles in order to deter them and to control crime by youthful offenders.

NEED FOR RECONSIDERATION OF JUVENILE JUSTICE LEGISLATION IN INDIA

Eminent jurist H.L.A Hart contends that the offender must pay a ‗debt‘ to the society in the form of punishment as compensation for violating the social order47. Grave crimes upset the equilibrium of the society thus in order to restore the equilibrium the offenders should be sentenced in proportion to the gravity of the offence. The law prevailing in a country should be as such as to deter the criminals by committing the crime again and to reform them through rehabilitation and care. Following this ideology the legislature enacted the Juvenile Justice Act 2000 for the protection and care of juveniles. However with the increasing crime rate by the juveniles, this law is not progressive in nature and is encouraging the juveniles to commit more crimes with the mind- set to be sent to remand for rehabilitation home under the provision of the act.

43 Danielle R. Oddo, ―Removing confidentiality protections and the „Get tough‟ Rhetoric: What has gone wrong with the juvenile justice system? 18 B.C. THIRD WORLD L.J. 125-26 (1998) 44 Supra Note 42 45 Massachusetts General Law, ch 199, Section 74 (1998) 46 Massachusetts General Law, ch 199, Section 52 (1998) 47 H.L.A Hart, Punishment and Responsibility,231,(1982)

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Thus there is a need for an amendment and change in the laws. In authors opinion the law with respect to the criminal responsibility of a juvenile should be stronger for those juveniles who commit heinous crimes. There should be a classification of juveniles. Those who commit serious crimes and are above the age of 16 years and have maturity to understand the consequences of their action, no protection or care should be provided to them. In State of U.P v. Sanjay Kumar48 the court laid down that a sentencing policy in a criminal justice system must consider two aspects the gravity of the crime and the background of the individual.

Another shocking Mumbai Gang Rape known as the Shakti Mill Rape Case has strengthened the view to amend the laws of the nation. A 22 years old photo-journalist was gang-raped by 6 men including two juveniles. The three repeated offenders were awarded death penalty49 observing no scope of leniency whereas the fourth convict was given life imprisonment and the juvenile were send to reformatory home for 3 years in Nasik50.

The ‗1993 Bombay blast‘ was one of the most heinous acts of terrorism in the last three decades. On 12 March, 1993, 13 bomb blasts in the city shocked the conscience of the people and resulted in death and injury to hundreds of people. One of the accused who was a juvenile of the date of commission of the offence, seventeen years and three months was denied protection under the Juvenile Act 1986 on account of the nature and gravity of the offence and was tried as an adult under the Terrorist and Disruptive Activities Act51. The court

48 (2012) 8 SCC 537 49 Rebecca Samervel, ‗Mumbai Shakti Mills rape cases: Death penalty for 3 repeat offenders‘ The Times of India (Bombay, 4 April, 2014) 50 Staff Reporter, ‗Shakti Mills rapes: Two juveniles convicted, sent to reform school‟ The Hindu, (Mumbai, 15 July 2014) 51 Essa @Anjum Abdul Razak Memon (A-3) and Ors v. State of Maharashtra through STF,CBI Mumbai and Ors, 2013 (3) SCALE 1

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upon convicting him said that he was certainly not a child and in need have care and protection. It was rarest of the rare case.

The question raised is after the brutal Delhi Gang Rape, charging the juvenile with rape and giving him immunity under the act led to no deterrence and Shakti Mill Rape case is an example of that. In less than year two heinous gang-rape cases have taken place in the Metropolitan cities of our country. This should be the wake-up call for the parliament and the legislature to amend the laws.

On 12August, 2014, The Bill to amend the Juvenile Justice Act 200052 was introduced in Lok Sabha, paving the path for the juvenile offenders between 16-18 years of age to be treated as adults53. The bill was introduced by Women and Child Development Minister Maneka Gandhi. In Juvenile Justice Bill, 2014 the provision with respect to the criminal responsibility of the juvenile states, that no juvenile can be awarded life imprisonment or death sentence under any circumstances. Section 4 of the bill lays emphasis on the various fundamental principles for care, protection and rehabilitation of children. Section 14 of the Amendment Bill 201454 if the child is alleged to conflict with law and is above the age of sixteen years and has committed one of the offences mentioned in the provision, inquiry is to be conducted within one month of production of the child to pre-meditate the nature of the offence and the circumstances in which such offence was committed, culpability of the child in committing the offence and on the basis of the child‘s understanding of the consequences of the act will lead the board to make an order under Section 17(3). Once the board is satisfied that the offence has been committed by child in conflict with law with respect to above factors, the board passes

52 Juvenile Justice Amendment Bill 2014, available at < http://wcd.nic.in/icpsmon/pdf/draft_%207_%20JJ_Bill_June_2014_18062014.pdf> 53 Staff Reporter, ‗Bill to amend Juvenile Justice Act introduced in Lok sabha” India today, (New Delhi, 12 August,2014) 54 Supra note 51

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pass an order for adjudication of the case or to transfer such case to the court having jurisdiction over such offence.

Finally the legislature has taken a step forward to amend the Juvenile Justice Act 2014, this legislations seems to be progressive and to deal with the current scenario of our country criminal system. The 2000 Act failed to express concept pf parental responsibility, procedural guarantees like right to counsel and speedy trial and most of all failed to express the sentencing to juveniles who committing heinous crimes.

CONCLUSION

Parliament has exceeded its directive by adopting 18 years of age as the upper limit for classifying a juvenile in accordance with the Beijing Rules 1985, UN Convention 1989, without paying heed to Indian legal system for administration of justice and socio-cultural conditions. There are many flaws in the Juvenile Justice Act 2000, it compromises with the public safety and lays emphasis on rehabilitation and reintegration of the juveniles in the society and thus is in violation of natural justice. The recommendations in the Juvenile Justice bill 2014 are made towards a more balanced approach and to award proportionate punishments to offenders. The author does not suggest a harsh approach towards juveniles but it should be balanced and reformative theory should not be the sole consideration. Reformative theory should be paid consideration when there is a possibility of the juvenile to reform its actions if there is no such possibility the court should decide the cases according to the background and gravity of the offence using its judicial discretion. Thus the Juvenile Justice Bill of 2014 should be implemented along with the discretion of the judiciary to decide such cases.

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TRADEMARK KEYING: DETERMINING THE LIABILITY OF SEARCH ENGINES

Namisha Chadha* Shiv Johar** INTRODUCTION

“What’s in a name? That which we call a rose, By any other name would smell as sweet.” Would have been acceptable to Shakespeare, but certainly not to WIPO. Today everything is in a name, if the name has acquired significance as a trademark. William Murray, First Earl of Mansfield observed in Morgan v. Jones, that, “most of the disputes in the world arise from words.”

With the advent of Internet Technology there has been a paradigm shift in the way we conduct business. Notwithstanding, the benefits, e-commerce has also brought with it a plethora of novel legal issues, many of which remain unresolved. Courts have spent innumerable hours in a bid to compress the vast and seemingly boundless world of Internet commerce into the restrictive confines of commerce laws originally developed for a brick-and-mortar marketplace. Trademark laws have proven particularly difficult to stretch into this emerging technological arena.

One of the most divisive trademark issues today is whether the sale of trademarks as ―keywords‖ by Internet search engine companies constitutes trademark infringement. Courts in the United States, the United Kingdom and France are currently divided in opinion, but there are several high-profile cases pending which hopefully will provide some much needed clarity and resolution to this emerging area of intellectual property law

______*4th year student, Amity Law School, Guru Gobind Singh, Indraprastha University, Delhi *4th year student, Amity Law School, Guru Gobind Singh, Indraprastha University, Delhi

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The dispute before the Madras High Court between Bharatmatrimony.com and Google is yet another instance wherein, this issue has cropped up for judicial determination. Through the medium of this paper an endeavor has been made to examine the existing legal position in this regard in different jurisdictions including the United States and the European Union as well as the position likely to emerge under the Indian law.

TRADEMARK KEYWORD AND HOW THE SYSTEM WORKS

Trademark keying is the sale of search results and advertising linked to searches based on product names and trademarks1. When one enters a search query into the search toolbox of the search engine, two lists are produced namely: ‗natural results‘ and ‗sponsored results‘ (paid for by advertisers)2. The first list which is the ‗natural results‘ (also known as organic results) is a list of those uniform resource locators (URLs) which are most relevant to the search query based on the content and information contained in the website.

The second list, which is referred to as the ‗sponsored results‘ is generated using two methods: Keyword Advertising and Meta tags3. Here the keywords are purchased by the advertiser from the search engine company and the latter has complete control over the sale of keywords. The sale of keywords allows the advertisers and search engines to modify and control the performance of the sponsored results. Although Meta tags are used along with keywords but in

1 Keenan, American and French Perspectives on Trademark Keying: The Courts leave businesses searching for answers, 2 Shidler J. L. Com. & Tech. 14 (2005) 2N.Shemtov, Searching For The Right Balance: Google, Keywords Advertising And Trade Mark Use, E.I.P.R.

2008, 30(11), 470-474. 3 David Kitchin, Llewelyn, Mellor, Meade, Moody – Stuart and Keeling, Kerly‟s Law of Trademarks and Tradenames, Edition 2007, Thomson International Sweet and Maxwell, pg.725.

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the present state their importance has been reduced considerably. Keyword advertisements are textual advertisements, which appear on search results pages, along with the algorithmic, or ―natural‖ search results. These advertisements are usually highlighted and appear above, below or sometimes to the right of the natural list. They even carry a label along with them such as ‗Sponsored Links‘ (in case of Google), ‗Sponsor Results‘ (in case of Yahoo!) or ‗Sponsored Sites‘ (in case of MSN Search). Advertisers pay search engines to deliver these advertisements when users enter certain terms, or keywords, in the search box in their browser. Whether and where an advertisement will appear in the results may depend in part on the price paid by the advertiser and possibly on other factors that may vary from one search engine to another4.

Search engines such as Google, Netscape, Yahoo search, Bing are minting money by selling these keywords for advertisements. It was reported that nearly 97% of Google‘s earnings in 2009 were from its AdWords programme, which amounted to $22.889 billion5. In 2013 Google‘s advertising revenue grew by 16% and the revenue earned was above $50 billion, thus clearly depicting that the online keyword advertising market is on a substantial increase6. Google has encountered a growth of 17% and 19% in the first and second quarters resp. with respect to online keyword advertising in 2014.

The paramount question, for determinations is whether the sale of the trademark as a keyword amounts to infringement of that trademark or not.

JUDICIAL RESPONSES- AN INTERNATIONAL PERSPECTIVE

The Standing Committee on the Law of Trademarks, Industrial Designs and Geographical Indications of the World Intellectual Property Organization, in its paper summarizing the past and current developments in the area of

4David S. Fleming, Keyword Advertising Remains Unsettled, Best of ABA Sections Special Issue ,March 2009 ,Volume 26, Number 2 5 Ten Years of Advertising with Google AdWords, The guardian, October 25, 2010 62014 financial tables. Google investor relations, https://investor.google.com/financial/tables.html

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trademarks and the Internet, took note of the fact that practices such as unauthorized use of trade marks as keywords by search engine operators constituted clear challenges to the traditional application of trademarks law.

Challenges have been faced across jurisdictions regarding the use of trademarks on the Internet. In pursuance of determining the search engine‘s liability in selling trademarks as keywords, for a holistic view, the response in various jurisdictions has been set out.

JUDICIAL RESPONSE IN CHINA

Contradictory views are prevalent in China as regards the legality of keyword advertisement.

While in the case of Google v. Guang Dong Ganyi Electrical Appliances Co. Limited, wherein, the plaintiff‘s registered trademark NEPFON was sold by Google as a keyword to its competitor, the Court had absolved Google of liability for trademark infringement on the ground that it did not have the ability to check or control the information submitted by the competitor. On the contrary, in the case of Baidu v. Shanghai Dazhong House Moving Logistics Company Limited, the Court held Baidu liable for allowing Dazhong‘s competitor to link their web sites to the keywords ―Dazhong Banchang‖.

JUDICIAL RESPONSE IN USA

Domain name and Meta tagging issues undoubtedly provided the spark for the courts‘ forays into the emerging arena of Internet trademark litigation. While those issues are now fairly well settled, a much more controversial issue looms: whether the sale of trademarked phrases or names as keyword by search engines (an extremely lucrative practice) constitutes trademark infringement actionable under the Lanham Act. Whether such activity constitutes trademark infringement is a contentious issue. Courts in the United States are divided in opinion as to whether keyword search terms should

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receive trademark protection under the Lanham Act or not. As the law currently stands, two lawsuits with seemingly identical facts could be decided in opposite ways simply depending on the jurisdiction in which they are filed; however, a uniform decision on this issue may not be too far away.7

Playboy Enterprises, Inc. v. Netscape Communications Corp.

A seminal case that brought the sale of trademarks as keywords within the purview of the United States trademarks law was Playboy Enterprises, Inc. v. Netscape Communications Corporation.8The United States Court of Appeals for the Ninth Circuit became the first federal appellate court to rule on whether selling a trademark, as a keyword constitutes trademark infringement.

In that case, Playboy alleged that Netscape had engaged in trademark infringement by selling ―banner ads‖9 to advertisers that were keyed to Internet users‘ searches of the terms ―playboy‖ and ―playmate‖ (registered trademarks of Playboy).10 ―Keying‖ is a process by which ―advertisers . . . target individuals with certain interests by linking advertisements to pre- identified terms.‖11 An analogy offered by the court was that of a seed company willing to pay a substantial sum in exchange for having its advertisement displayed when internet users enter search terms related to gardening.12

In Playboy, certain adult-oriented companies paid for their advertisements to pop up when users typed ―playboy‖ or ―playmate‖ into Netscape‘s search engine. The banner ads instructed the user to click on a button within the ad; upon doing so, the user was taken to the website of the advertiser.

7 Norris, The Sale of Keywords: Trademark Infringement Actionable under the Lanham Act, 2 Charleston L. Rev. 889 8Playboy Enterprises., Inc. v. Netscape Communications Corp., 354 F.3d 1020 (9th Cir. 2004) 9 Id. at 1023 (―Advertisements appearing on search result pages are called 'banner ads' because they run along the top or side of a page much like a banner.‖). 10 Id. at 1022-23 11 Id. at 1022 12 Id.at 1022-23

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The Ninth Circuit rejected the line of reasoning, offered by the district court, noting that the statute‘s definition of ―use in commerce‖ is directed at the use required to claim rights in a mark. Relying on the statute‘s definition of ―commerce,‖ the Ninth Circuit found that keying advertising to a competitor‘s trademarks was ―use in commerce‖ that consequently could constitute trademark infringement. The Ninth Circuit cited Brookfield13 and further held that actionable initial interest confusion (and trademark infringement) could potentially result from Netscape‘s keying of other companies‘ advertisements to Playboy‘s trademark. It therefore, reversed the grant of summary judgment and remanded the case to the district court for further proceedings.

THE APPROACH OF THE SECOND CIRCUIT

The Second Circuit approach considers ―‗use,‘ ‗in commerce,‘ and ‗likelihood of confusion‘ [as] three distinct elements of a trademark infringement claim.‖14 Under that view, the courts have determined that ―‗use‘ must be decided as a threshold matter because, while any number of activities may be ‗in commerce‘ or create a likelihood of confusion, no such activity is actionable under the Lanham Act absent the ‗use‘ of a trademark.‖15 Because these courts have refused to recognize the sale of keyword search terms as a ―use‖ under the Lanham Act, they have rarely even broached the pivotal underlying issue of whether such activity can result in consumer confusion-- the heart and soul of trademark law.

The Second Circuit‘s approach to this sort of claim is illustrated in Rescuecom Corp. v. Google, Inc.16 The plaintiff, a computer services franchise, filed suit against Google for selling the plaintiff‘s trademarked name ―Rescuecom‖ as a keyword to Rescuecom‘s computer service competitors. In addition to selling

13Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999) 14supra n.25 15Id. 16Rescuecom Corp. v. Google, Inc., 456 F. Supp. 2d 393 (N.D.N.Y. 2006)

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the plaintiff‘s trademark, Google, through its ―Keyword Suggestion Tool‖ program, even ―recommended Rescuecom to the plaintiff‘s competitors as a keyword in order to make . . . their advertising more successful.‖ Despite this seemingly obvious infringement on the goodwill associated with Rescuecom‘s trademark, the court dismissed this portion of the complaint with prejudice. The court held that because Google‘s use of Rescuecom‘s trademark to trigger sponsored links was ―internal‖ and because there was ―no allegation that Google placed Rescuecom‘s trademark on any goods, containers, displays, or advertisements, or that its internal use was visible to the public,‖ the claim was not a trademark ―use‖ under the Lanham Act.17

ANALYSIS

The problem with the Second Circuit‘s view is that it seems to disregard common sense. The Lanham Act was enacted over sixty years ago. The drafters simply could not have foreseen the dramatic alteration of our commerce landscape by the Internet. Because the way in which we do business has changed, new avenues for abuse have emerged. Accordingly, the law must accommodate this new form of commerce. It is ludicrous to refuse to consider a potentially valid trademark infringement claim simply because the use of another‘s trademark as a keyword search term does not fit neatly within the Lanham Act‘s sixty-year-old definition of a use in commerce.18

APPROACHES OUTSIDE THE SECOND CIRCUIT

Courts outside the Second Circuit have generally taken a more reasonable and flexible approach in construing the Lanham Act to accommodate trademark issues that have emerged through Internet commerce. In Government

17 Id. at 403 18 15 U.S.C.A. §1127(1) (West 1997)

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Employees Insurance Company v. Google, Inc.19, the plaintiff (commonly known as ―GEICO‘) sued Google and Overture, another internet search engine, alleging trademark violations for their sale of the trademarked term GEICO to the plaintiff‘s competitors. The defendants sought a dismissal of the Lanham Act claim, arguing that their use of the trademark did not constitute a sufficient use pursuant to the Lanham Act. The court disagreed, and found that the defendants had indeed engaged in a use that fell under the Act‘s provisions. The court reasoned that the defendants‘ offer of plaintiff‘s trademarks for use in advertising could falsely identify a business relationship or licensing agreement between the defendants and the trademark holder. In other words, when the defendants sell the rights to link advertising to the plaintiff‘s trademarks, the defendants are using the trademarks in commerce in a way that may imply that the defendants have permission from the trademark holder to do so.20

Though the GEICO court did not rule on whether the defendants‘ use of the trademark constituted an actual Lanham Act violation, the court made it very clear that such use was indeed a ―use in commerce.‖

In Edina Realty, Inc. v. TheMLSOnline.com21, Edina Realty sued competitor TheMLSOnline.com, for purchasing ―Edina Realty‖ as a keyword search term on Google and Yahoo. The court found that the defendant‘s conduct constituted a sufficient use in commerce for purposes of the Lanham Act. The court astutely noted that, although this particular use in commerce was unconventional, it was still a use in commerce ―based on the plain meaning of the Lanham Act.‖

19Government Employees Insurance Company v. Google, Inc., 330 F. Supp. 2d 700 (E.D. Va. 2004); Miranda, Geico v. Google and The Use Of Trademarks By Search Engines, 78-SEP N.Y. St. B.J. 44 (2006) 20 Id. at 704 21Edina Realty, Inc. v. TheMLSOnline.com, 2006 U.S. Dist. LEXIS 13775 (D. Minn. March 20, 2006)

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ANALYSIS

This plain meaning view of the Lanham Act is clearly the most sensible way to approach this issue. The fact that search engines encourage bidding on, and derive profit from, an owner‘s established mark should alone be enough to constitute a use in commerce. The mark has value and that value is traded upon. Surely, there can be no clearer example of a use in commerce. Indeed, once we move past the use in commerce stumbling block, there should be little question as to whether the sale and use of Internet keywords without the owner‘s consent can constitute trademark infringement. As noted above, the basic tenets of trademark law are (1) to prevent consumer confusion, and (2) to protect the goodwill that companies have established in their marks over time. The purchase of trademarks as keywords has the potential to violate both.22

JUDICIAL RESPONSE IN EUROPE

UNITED KINDOM

Road Tech v. Mandata23, was the first reported English decision on Meta tags, and thus attracted much interest in its day. Meta tags are a type of keyword or other forms of text, normally invisible to end users that are embedded in the HTML in which web pages are generated. Their function is to enable proper indexation by Internet search engines, which pick up Meta tags and report their sites in response to searches input into the engines by users.

In the instant case the claimant, Road Tech Computer Systems Ltd, found that ‗Road Runner‘ and ‗Road Tech‘ both of which were its registered trademarks had been used as Meta tags by the defendant without consent. Mandata admitted to such usage in order to direct users to its own sites. The Court on

22Norris, The Sale of Keywords: Trademark Infringement Actionable under the Lanham Act, 2 Charleston L. Rev. 889 23Road Tech Computer Systems Ltd. v. Mandata (Management and Data Services) Ltd., [2000] E.T.M.

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establishing the ‗trinity‘ ingredients held defendants liable for passing off.

In Reed v Reed24, it was alleged that the defendants had used various Meta tags to divert users to their webpage from that of the claimants‘. Interestingly court held, assuming Meta tag use counts as ‗use of a trademark‘ even then such use did not constitute either passing off or infringement.

In Wilson v. Yahoo25, Mr Wilson complained that, if one entered his registered Community trademark into Yahoo‘s search engine, it would direct the user to Sainsbury's website and Pricegrabber.com's26 website, thereby, constituting an infringement of his Community trademark registration under Art. 9(1)(a) of the CTM Regulation.

Observing that ―Yahoo is offering services of a different character‖, court held there was no infringement.

ANALYSIS

For the trademark owners, far worse damage had been caused by the above- mentioned judgment pronounced by Morgan J. The judgment so to say is a very trenchant one. And, on first reading, it would seem to make the prospects for success for future attempts by brand owners (whether Interflora or others) to seek redress from the English courts for the unauthorized use of their brands as keywords even bleaker than they were after the Court of Appeal‘s judgment in Reed v Reed.

However, in the author‘s view the despair inflicted on brand owners by Wilson v Yahoo! Is not entirely warranted, for in his opinion there are various features both of the case and of the judgment, which mean that Wilson v

24Reed PLC v. Reed Information Ltd., (2004) RPC 40 (CA), 767 25Victor AndrewWilson v. Yahoo U.K. and Anr., (2008)EWHC 361 (Ch), per Morgan J. at [64] 26Jonathan Cornthwaite, AdWords or bad words? A UK perspective on keywords and trade mark infringement, E.I.P.R. 2009, 31(7), 347-352

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Yahoo is unlikely to be the last word on the subject.

FRANCE

Cases in France, Interestingly, are against ‗AdWords‘, and were filed by brand owners including Louis Vuitton27, Viaticum and Luteciel28, all of whom asserted that Google had made keywords that were either identical or similar to their respective brands available to advertisers. Similarly, Le Meridien29also sued Google in 2004.The courts in France found against Google for permitting its advertisers to use other parties‘ trademarks as keywords. Even if no infringement owing to the usage of trademarks has been established, the same has been prohibited by the French Courts under Competition Laws.30

Three references arose out of the abovementioned proceedings. Cour de Cassation, before which separate appeals were preferred, had referred the three questions to the European Court for a preliminary ruling. The Grand Chamber answered all the references.

After the ECJ had rendered its opinion on 23.3.2010, the French Cour de Cassation took back the case of Louis Vuitton by an order dated 13.7.2010, remitted the case back to the Court of appeal to examine the factual matter‘s more closely keeping in mind the ECJ‘s ruling.

ANALYSIS

These French cases create a difficult situation for Google, which may indefinitely have to operate its business under two diametrically opposed legal

27T.G.I. Paris, Feb. 4, 2005 (Original French language version of court decision in SociétéLouis Vuitton Malletierc/Sociétés Google Inc. et Google France), at http://www.juriscom.net/documents/tgiparis20050204.pdf 28CA Versailles (12e ch.), Mar. 10, 2005 (English translation of an excerpt of the court order and a link to the original court order in French), at http://www.legalis.net/jurisprudence- decision.php3?id_ article=1415 29Societe Des HotelsMéridienv.SarlGoogle France, Dec. 16, 2004, NoRG 04/03772 30Kertelvs. Google and Cartophone; Citadinesvs. Google; GIFAM vs. Google; Laurent C. vs. Google and Auto IES vs. Google France

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doctrines. In fact, Google has operated this way for a short time already.

GERMANY

The opinion of the courts with regard to this question remains dissevered31.‗The German Teleservices Act‘, enshrines the liability of SEP‘s. It provides that the SEP‘s are to be held liable only when there is knowledge and it is technically possible and reasonable for the SEP to prevent such use.

ANALYSIS

It is very hard to prove knowledge of infringement, especially in such a large, worldwide program as Google Adwords. Thus it would seem that the German courts are currently following the US line. There is no strict doctrine of precedent in Germany; nevertheless it appears that the outlook is bleak for trademark owners in Germany seeking to prevent the use of their trademark by the Google Ad Words program.32

IRELAND

This issue has not risen as yet before the Irish Courts for judicial determination. However, it can be safely affected that the English judgments would have persuasive effect.

BELGIUM

In SA Nutripharm v SPRL Innoval33, the court held SPRL liable for infringing rather damaging the trademark of Nutripharm and additionally held it liable for unfair competitive practices and parasitism.

31Braunschweig v Google 2005, 9 O 2852/05 (288), Nemetschek AG v Google Inc, No. 33 0 21461/03 (Dist. Ct. Munich, 2003); Metaspinner Media GmbH v Google Deutschland, No. 312 0 887/03 (Dist. Ct. Hamburg, 2004). 32Blakeney, Adverse to Adwords? An Overview of the Recent Cases leading to Google Adwords, C.T.L.R. 2007, 13(3), 83-87 33SA Nutripharm v Innoval, [2009] E.T.M.R. 41.

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ITALY

In the Republic of Italy the SEP‘s are liable only to the extent of their involvement in trademark infringement; however, there exists cases34where providers have also been held liable under the competition laws.

NETHERLANDS

Courts have considered the usage of a competitors‘ trademark as 36 infringement.35According to the Amsterdam Court of Appeal advertisers are allowed to use a trademark as keyword, at least during:

- Resale of the product;

- Ad leads directly to the subpage and not the homepage.

SPAIN

In accordance to the AAP‘s Rules37, 1999, trademark usage as keywords can be considered as trademark infringement, misleading advertisement and unfair competition.

AUSTRIA

The Austrian Supreme Court, in a case, before it wherein, the plaintiff, an online wine store by the name of ―Wein & Co.‖ sued a competitor for purchasing its mark as a keyword ruled in favour of the plaintiff.

34Genertelv Crowe Italia, (January 18, 2001); TechnoformBautec Italia v Alfa Solare SA, (February 8, 2002); Philips v Infostrada, (December 28, 2001) and Cassina v Galliani Host Arredamenti , (July 16, 2002)

35Pretiumv. Yiggers, November 12, 2004; Endless Webdesignv. Google Netherlands B.V., Decision of August 24, 2006.

36Portakabinv. Primakabin, Decision of December 14, 2006. 37 S.8, Rules of AAP (Asociaciònpara la Autorregulaciòn de la ComunicaciònComercial).

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ISRAEL

In Matim-Li Fashion v. Google38, it was alleged that Google‘s allowing a competitor chain to use ML's trademarks as keywords was an infringement of her rights. Court held that there was no likelihood of confusion.

POSITION IN INDIA

Consim Info Pvt. Ltd. v Google India Pvt Ltd. & Ors.39 is the first case pertaining to this subject, which was filed before the Indian Courts. In the instant case the plaintiff had alleged that sale of keywords similar to that of the registered trademark of the plaintiff amounted to infringement of the trademark.

The court had ruled that there did not exist any prima facie case for infringement of the trademark. The court further held that granting an order would result in Consim obtaining monopoly over the word ‗Matrimony‘ which would be detrimental to its competitors. Thus the words ‗matrimony‘ and ‗tamil‘ could be offered to sell as keywords individually. An appeal had been filed by consim info, which was subsequently dismissed by the division bench of the Madras High Court40.

Later on a Special Leave Petition was filed by Consim Info. on the basis of which a three-judge bench of the Supreme Court passed an interim order dated restraining the competitors from using those words as keywords41. The matter is currently sub-judice and final decision over the same is much awaited for it would shed light on the stand taken by India.

38Matim-Li Fashion Chain Ltd et al v Crazy Line Ltd & Google Israel Ltd et al, Tel Aviv District Court (506/06).

39MANU/TN/1816/2010 40 2013(54)PTC578(Mad) 41 Order dated 19 October 2012, SLP(C) 32134-32135/2012

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CONCLUSION

In view of the authors the legislations have failed to address this dispute directly. It is to be borne in mind that the party affected is the owner of the intellectual property, on whose account a third party reaps benefits.

The authors seem to agree with the stand taken by a few European Courts (such as Germany), which need to be applauded on their efforts for they held infringers liable, showcasing the need for laws to protect owners of trademarks from acts of parasitism

As regards the Trademarks Act, 1999 the same can and should be extended, to provide a remedy in this arena for owners who have invested countless hours and resources into the development of their marks.

The courts should protect the interests of trademark owners who have reposed their faith in law to protect their intellectual property as well as the public at large which is likely to be affected by the same.