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NIRBHAYA ACT VIS-À-VIS THE CR.PC.
Ayush Jaiswal*
You can tell the condition of a nation by looking at the status of its women.
- Jawaharlal Nehru
INTRODUCTION
The status of women in any civilization shows the stage of evolution at which, the civilization has arrived. The term status includes not only personal and proprietary rights but also duties, liabilities and disabilities. In the case of an Indian woman, it means her personal rights, proprietary rights, her duties, liabilities and disabilities vis-à- vis the society and her family members.
In the year 1950, the Constitution of India came into existence. It not only declared that men and women are equal, but also prohibited any kind of discrimination against women. The message it conveys to us is; men and women are equal! Is it not? Then we might start wondering why it is necessary to talk about protection of women, in particular .Yes, it is true that our constitution provides that men and women should have equal opportunities, the recent Delhi-gang rape case, proved the constitution makers wrong. The brutal gang-rape of a young lady in the heart of the Indian capital, led to a nation-wide protest against the present day laws and a demand for reforming anti rape laws, to secure the women of the country. Taking this tragedy as a ―hope to better governance‖ The government of India appointed a committee to suggest reforms to the criminal law to provide quicker trail and enhanced punishment to the committer of sexual violence, headed by the then Chief Justice of India, Justice JS Verma. The commission went on to criticize the government, the abysmal and old-fashioned police system alongside public apathy in
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* Editor-in-chief, International Journal of Legal Research
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tackling violence against women, and thereby, recommended dramatic transformation in legislations. In this paper, the amendments brought in the Criminal Procedure Code, 1973 by the Criminal Law (Amendment) Act, 2013 shall be analyzed.
OBJECTIVES
To identify the provisions before the Criminal Law (amendment) Act 2013. To compare the new laws with the old ones. To check the applicability of new laws in the society. To suggest reforms to the existing laws. To get the views of the laymen and lawmen on the laws.
RESEARCH METHODOLOGY
The data collection is through non empirical research.
HYPOTHESIS
The offence of rape is an unlawful sexual intercourse between a man and a woman without the latter‘s consent. The offence of rape, like the other offences requires actus reus and mens rea1. Also, the sexual relation so established shall be involuntary in nature. In this context, the Supreme Court has rightly said, ―rape is ravishment of a woman without her consent2‖. The offence of rape is not a current coin. It has been in existence since a long time and a number of attempts have been made by the Law to control this offence. The recent amendments made by the Nirbhaya Act to a great extent have introduced unassailable laws relating to rape, however its proper implementation without misuse are still to be achieved.
TRIAL OF CASES OF SEXUAL ASSAULT
The Criminal Law (Amendment) Act, 2013 inserts a new proviso to clause (a) of section 26 of the Cr.PC. as ―Provided that any offence under Section 376 and Sections 376-A, 376-B, 376-C, 376-D or 376-E of the Indian Penal Code (45 of 1860) shall be tried as far as practicable by a Court presided over by a woman‖. Section 26
1 Das P.K. Handbook on new anti rape law, Univrsal Law Publishing Co., 1st edition, 2013 Pg. 6 2 Phul Singh v. State of Haryana AIR 1980 SC 249
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of the Criminal Procedure code provides that offences under the Indian Penal Code can be tried by the High Court, the Court of Session or any other court prescribed by the first schedule of the code for such offence.3 The 2009 amendment provided that cases relating to section 376, 376-A to 376-D shall, as far as practicable be tried by courts presided by a woman. The 2013 amendment adds that cases relating to rape committed on a woman by a person being on the management or staff of a hospital in such hospital. It is worth noticing that the words clearly mention, cases relating to offences described above need not mandatorily tried by a court presided by a woman, only as far as practicable.
IDENTIFICATION BY DIFFERENTLY ABLED PERSON
―Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be videographed.‖4
This proviso states that if the person, who is identifying the arrested person, is mentally or physically disabled, the process of identification should be carried out in the supervision of a judicial magistrate. It is worth mentioning that this proviso doesn‘t only confine to cases relating to sexual assault, but to all cases. The reason behind mandating the proceedings to be carried out in a magistrate‘s presence seems to be that, in his absence there are chances of misidentification or obstruction of course of justice. Magistrate‘s presence would ensure that the victim can freely identify the alleged crime-committer. This proviso also enables the magistrate to take all appropriate method to ensure that the person identifying is comfortable. The newly inserted provision also mandates that the process of identification shall be videographed.
3 Jhabvala N.H., The Code of Criminal Procedure, C. Jamnadas and Co. 22nd Edition 2013, Pg. 23 4 The Criminal Law (Amendment) Act, 2013, Section 12
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Suggested amendment to the proviso
This proviso can be made more properly and efficiently implementable by introducing a compulsory presence of an interpreter or special educator along with magistrate. This would ensure what the victim wants to communicate is communicated in the intended way and in the exact words, thereby reducing the chances of misinterpretation by the magistrate.
INFORMATION TO POLICE OFFICER
The Criminal Law Amendment Act, 2013 inserts a new provision to Section 154, which relates to information given to a police officer in cognizable offences. The new provision says ―Provided that if the information is given by the woman against whom an offence under section 326A, section 326B, section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, then such information shall be recorded, by a woman police officer or any woman officer:
Provided further that--
(a) in the event that the person against whom an offence under section 354, section 354A, section 354B, section 354C, section 354D, section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code (45 of 1860) is alleged to have been committed or attempted, is temporarily or permanently mentally or physically disabled, then such information shall be recorded by a police officer, at the residence of the person seeking to report such offence or at a convenient place of such person's choice, in the presence of an interpreter or a special educator, as the case may be;
(b) The recording of such information shall be videographed;
(c) the police officer shall get the statement of the person recorded by a Judicial Magistrate under clause (a) of sub-section (5A) of section 164 as soon as possible.‖5
5 The Criminal Law (Amendment) Act, 2013, Section 13
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The newly inserted provision basically mandates that when information is given by a woman against whom an offence mentioned in the above sections of the IPC has been committed or attempted, the information shall be recorded by a woman officer or woman police officer.
The provision further states that if an offence relating to assault or use of criminal force against a woman with intention to outrage her modesty or to disrobe her, Sexual harassment, voyeurism, staking, rape, rape that causes death or puts the victim in permanent vegetative state, gang rape, sexual intercourse by a person who is in authority, or by husband with his wife during separation or utterance of word, gesture or any such act intended to insult the modesty of a woman, provided in all the above mentioned, the victim is mentally or physically disabled, then the information shall be recorded by a police officer either at the place of residence of the victim or any other place of her choice in presence of an interpreter or special educator. It is also mandatory that the information shall be videographed and the police officer shall get the statement recorded by a judicial Magistrate under clause (a) of sub- section (5A) of Section 164 (which would be discussed later) as soon as possible.
In this proviso, the words ‗as soon as possible‘ create chances for the police officer concerned to misuse the discretionary power. The police officer may availing this power, ask the victim to come to the police station again and again for no reason or to get any kind of benefit like asking for bribe to get the statement recorded early. It is therefore suggested that the words as soon as possible shall be substituted with words ―within 24 hours failure to which, the reasons shall be recorded and a copy, thereof signed by the magistrate shall be given to the victim.‖
In a case, where the petitioner filed a writ to direct the police to register F.I.R who alleged that after she was arrested (following an ongoing suit against her) she had been raped repeatedly while in the custody of police. However, she did not disclose the fact to the magistrate, also to her mother on two occasions, and before female doctors of civil hospital. It was held that the expressions ‗reason to suspect the commission of an offence‘ in Section 157 of Cr.PC., it is the duty of police officer to take note of background/materials or information relating to such case. Keeping in
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consideration of the facts of this case, the High Court of Gujarat dismissed this petition and the same was help by the Supreme Court as well.6
Similarly, when a there was a delay of six months in lodging the F.I.R. after the first incident of sexual intercourse. It was held that as long as the commitment of marriage subsists, a relationship between parties cannot be described as constituting offence of rape. It is only after the accused declined to marry the prosecutrix, she reported to police, which cannot be called as delay in filing F.I.R.7
POLICE OFFICER‟S POWER TO REQUIRE ATTENDANCE
The Criminal Law (Amendment) Act, 2013, In section 160 of the Code of Criminal Procedure, in sub-section (1), inserts the proviso, ―under the age of fifteen years or above the age of sixty-five years or a woman or a mentally or physically disabled person" for the words "under the age of fifteen years or woman‖,
According to section 160 (1) of the Cr.PC, a police officer can, by order require the attendance of any person before him, Provided there is a written order for the same, the person being called appears to be acquainted with facts of the case and the person is within the limits of the police station of the investigating officer or within the limits of an adjoining police station.8
However the Nirbhaya Act has inserted a new proviso according to which, no male person who is under 15 years of age, an elderly male (more than 65 years of age), a woman or a mentally or physically challenged person shall be required to attend any place other than the place where such man or woman resides.9This provision has been inserted to avoid indignities and inconveniences that might be caused due to misuse of the power bestowed to police officers.10 It is worth mentioning that the pre amendment section contained the words ―…No male person ‗under the age of fifteen years or woman‘ shall be required to attend…‖ The amended version doesn‘t only increase convenience of a larger group of people, but also
6 Doliben Kantilal Patel v. State of Gujarat, AIR 2013 SC 2644 7 Karthi alias Karthick v. State Rep. by Inspector of police, Tamil Nadu, AIR 2013 SC 2645 8 Dr. KNC Pillai, RV kelkar‘s Criminal Procedure, Eastern book company, Fifth edition, 2011, P.139,140 9 The Code of Criminal Procedure,1973, Section 160 10 Niloy Dutta v. Distt. Magistrate, Sibsagar, 1961 CrLj 2933 (Gau.)
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protects them from undergoing the experience of visiting a police station which is not considered to be a good one in our society.
EXAMINATION BY POLICE
The object of Section 161 is to enable police officer to collect evidence by any person, who is supposed to be acquainted with the facts and circumstances of the case, so that the evidence o collected may be produced before the court during trial. In case of a warrant case, charges may be framed by the police on the basis of such statements.11Also, before trial, copies of those statements are to be given to the accused free of cost.12 This section also empowers the police officer to audio-video record the statement.
The Nirbhaya Act inserts a new proviso to the section, which states that if an offence relating to assault or use of criminal force against a woman with intention to outrage her modesty or to disrobe her, Sexual harassment, voyeurism, staking, rape, rape that causes death or puts the victim in permanent vegetative state, gang rape, sexual intercourse by a person who is in authority, or by husband with his wife during separation or utterance of word, gesture or any such act intended to insult the modesty of a woman, the statement shall be recorded by a woman police officer or any woman officer.
In a case where the witness, during examination by the police, omitted to mention a fact in statement, the Court held that the omission is a question of fact and has to be decided after considering the significance and relevance of omission in context in which such omission occurred.13
RECORDING OF CONFESSIONS AND STATEMENTS
Section 164 of the Code of Criminal Procedure Code provides that any Metropolitan Magistrate or Judicial Magistrate can record any confession or statement made to him in the course of investigation. The section also empowers the magistrate to record
11 Supra Note 8, P.141 12 The Code of Criminal Procedure, Section 207 & 208 13 Satya Pal v. State of Haryana & Anr AIR 2013 SC 2015
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statements and confessions outside his jurisdiction.14 Also, any confession or statement may be recorded by audio-video electronic means in the presence of the advocate of the accused.15 However, no police officer, on whom any power of a magistrate has been conferred, can record such statement or confession.16
The Nirbhaya Act provides that, in cases punishable under section 354, section 354A, section 354B, section 354C, section 354D, sub-section (1) or sub- section (2) of section 376, section 376A, section 376B, section 376C, section 376D, section 376E or section 509 of the Indian Penal Code, the Judicial magistrate shall record the statement of the victim, in such manner as in his opinion is best fitted under the circumstances of the case. The Magistrate has also been given the power to administer oath to the victim. However, if the victim is mentally or physically disabled, the magistrate shall take the help of an interpreter or special educator in recording the statement, which shall also be videographed. The statement so recorded shall be considered a statement made in lieu of examination-in-chief, which has been defined as ―The examination of witness by the party who calls him shall be called his examination- in- chief‖ by the Indian Evidence Act.17, so that the maker of the statement can be cross examined on the statement that she made without the need for recording it again, at the time of trial.18
The magistrate who records such statement shall forward it to the magistrate by whom the case is to be tried or inquired.19
In the case of Mohan Shantana Goudkarand v. Suri Appa Rao,20 where, the confessional statement was made by the accused in early morning at the magistrate‘s house and there was nothing on record to show that questions put to the accused by the magistrate, was making statement voluntarily. Also, the accused was not sent to judicial custody to rethink during night but was kept in police custody and the
14 N.H. Jhabvala, The code of Criminal Procedure, C. Jamnadas and Co., 22nd edition, 2013, P. 95 15 Supra Note 12, Section 164 (1) 16 Ibid 17 Indian Evidence Act, Section 137 18 Supra Note 12, Section164 (5-A) (b) 19 Ibid Section 164 (6) 20 2012 CRI.L.J 2611
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magistrate failed to record any exceptional reason for recording the statement at his house. It was held that the confessional statement so recorded cannot be called a legal confession and cannot be made basis for conviction.
PROSECUTION OF JUDGES AND PUBLIC SERVANT
Section 197 of the Code of Criminal Procedure deals with prosecution of judges and public servant, who is not removable from his office without the sanction of the government is accused of committing an offence, while such officer while discharging his official duties. It says that no court can take cognizance of the offence so committed, except with the previous sanction of the central or the state government (As the case may be). The Criminal Law (Amendment) Act, 2013 has added an exception to the restriction of Courts to try these cases. It says that, if a public servant is accused of disobeying direction under law, committing offences of assault or use of force against woman with intent to disrobe her, voyeurism, staking, trafficking of a person, rape, utterance of word, gesture or act that intends to insult the modesty of a woman or sexual assault, no sanction from the government is required.
In a case, where a Magistrate wrote a letter to a District Judge, referring an advocate with words like ‗big gambler‘, ‗rowdy‘, it was held that the advocate can prosecute him without any sanction under Section 197.21
PROSECUTION OF OFFENCES AGAINST MARRIAGE
Section 198 of the Code of Criminal procedure provides that no court shall take cognizance of offence against marriage, unless the complaint has been made by someone aggrieved by the offence. It prohibits courts to take cognizance of offence of cruelty on wife by husband or his relatives, except upon a police report of facts that constitute such offence or upon a complaint made by the victim‘s parents, siblings, or uncles-aunts (maternal or paternal), or with a leave of the court or by any other person, who is related to the victim by blood. The Nirbhaya Act further provides that no Court can take cognizance of an offence of sexual intercourse by a husband upon his wife during separation, where the persons are in marital relationship, except where the complaint has been filed by the wife against her husband.
21 Sambhu v. Krishnaswamy, 1983 Cr.LJ 158
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Insertion of this proviso is a step towards criminalizing marital rape. Since ages, wives are regarded as no more than the property of their husbands; she is deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, the consent could not be revoked. This immunity has now been withdrawn in most major jurisdictions and India has taken first step towards it by inserting this proviso.
European Commission of Human Rights in C.R. v UK endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that the change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom.22
COLLECTION OF EVIDENCE
Section 273 of the Code of Criminal Procedure provides that all evidences collected during trial or other such proceeding, shall be in the presence of the accused and in his absence, before his pleader. It further provides that where the evidence of a woman has to be recorded, who is under the age of eighteen years, and has been subjected to rape or other sexual assault, the court is should take all appropriate measures to ensure that the accused and the victim are not confronted to each other; at the same time, the court shall also ensure that the right of cross examination of the accused is protected.23
POWER TO POSTPONE OR ADJOURN PROCEEDING
Section 309 of the Cr.PC provides that in every enquiry or trial, the proceedings shall continue from day-to-day until all the witnesses have been examined and if the Court finds such adjournment beyond the following day to be necessary, it has to record the reasons in writing. It also provides that, in cases relating to sexual assault, inquiry and trial shall as far as possible be completed within a time period of two months from the date of filing of charge sheet.
22 C.R. v UK Publ. ECHR, Ser.A, No. 335-C
23 The Criminal Law (Amendment) Act, 2013, Section 20
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It is worth mentioning that the words ‗as far as possible‘ suggest that the court is not bound to complete the trial within the prescribed time, it shall try to do so, within two months.
In a case, where the prosecutrix was raped by her teachers and her statement was recorded by the Trial Court on five different dates, the Supreme Court held that the trial court went against the spirit of law, thereby providing an opportunity to the defendants to win the prosecutrix‘s mother.24
COMPENSATION
Section 357-A of the Cr.PC. mandates the state government to prepare schemes in coordination with the central government to provide compensation in form of funds to the victim or his/her dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. It is up to the District Legal Services Authority and the State Legal Services Authority, as the case may be to decide the amount of compensation,25 which may be revised and recommended by the trial court.26 Where the offender is not traced or no trial takes place, the victim or his dependents may make an application in District Legal Services Authority and the State Legal Services Authority as the case may be, which after enquiry, (which shall be concluded within two months) 27 would award compensation.28 The SLSA and DLSA may order for immediate first aid or other medical facility free of cost on the certificate of police officer who should not be below the rank of officer in-charge of the police station or a magistrate of the concerned area.29
The recent amendment provides that the compensation payable by the state government to the victim shall be in addition to the payment of fine which would be paid to the victim by the accused in case of acid attack or gang rape.30
24 Mohan Lal v. State of Punjab AIR 2013 SC 2410 25 Supra Note 12, Section 357 (A) (2) 26 Ibid, Section 357 (A) (3) 27 Ibid. Section 357 (A) (5) 28 Ibid. Section 357 (A) (4) 29 Ibid. Section 357 (A) (6) 30 Ibid. Section 357 (B)
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In a case before the Gauhati High Court, where the prosecutrix believing in the promise of her boyfriend to marry her, consented to have sexual intercourse, the Court held that no ingredients to constitute the offence of rape are present, but compensation of Rupees One Lakh to the victim shall be paid by the accused,31 which also was held by the Supreme court in case of Deelip Singh Vs. State of Bihar (AIR 2005 SC 203)
TREATMENT OF VICTIM
The newly inserted section mandates all hospitals, whether government or private to provide free first aid or medical treatment to a victim of acid attack and sexual assault and shall also inform the police of such accident immediately.32
CONCLUSION
The Criminal Law (Amendment) Act 2013 undoubtedly has introduced various significant changes in the law, but it is merely a step taken for the long journey towards the end of violence against women in India. As noticed in the paper, Indian Laws relating to rape are no way inferior or impracticable. The introduction of these laws to a great extent would help in ending sexual violence against women, but one of the major flaws in the newly introduced law is that, it includes only women as victims of sexual assault; the new law has left men and the LGBT community in lurches as they have not been included in the Act, which in-fact was suggested by Justice J.S. Verma in his committee report.
As far as amendments to the Code of Criminal Procedure are concerned, the newly introduced laws, if properly implemented, are sufficient enough to maintain law and order, thereby ensuring the safety and dignity of the women. However, change in law does not ensure eradication of crime, change in mentality does!
31 Bijoy Singh Deka v. State of Assam 2013, CRI L.J. (NOC) 587 (Gau.) 32 Supra Note 30 Section 357 (C)
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REFERENCES
Das P.K. Handbook on new anti-rape law, Universal Law Publishing Co., 1st edition, 2013 Jhabvala N.H., The Code of Criminal Procedure, C. Jamnadas and Co. 22nd Edition 2013 Dr. KNC Pillai, RV kelkar‘s Criminal Procedure, Eastern book company, Fifth edition, 2011 The Criminal Law (Amendment) Act, 2013 The Code of Criminal Procedure,1973 The Indian Evidence Act,1872 The Indian Penal Code, 1860
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INDIGENOUS PEOPLES AND THE DANGEROUS EFFECTS OF CLIMATE CHANGE: THE ROLE OF THE UNITED NATIONS PERMANENT FORUM ON INDIGENOUS ISSUES (UNPFII)
Handa S. Abidin*1
1. The Dangerous Effects of Climate Change on Indigenous Peoples Indigenous peoples in the Pacific region know how climate change has impacted their lives.2 The United Nations Permanent Forum on Indigenous Issues (UNPFII) has underlined that ‗the Pacific region face a range of challenges because they are living in sensitive zones where the effects of climate change are most devastating‘.3 The sea-level rise caused by climate change has pushed indigenous peoples in the Pacific region to migrate to safer areas.4 Climate change has also changed the lives of indigenous peoples in the Arctic. The UNPFII has said that climate change ‗constitute[s] great threats to the traditional lifestyles and cultures of indigenous peoples of the Arctic‘.5 In a more detailed explanation, the UNPFII stated:
*1 Lecturer on International Environmental Law at Faculty of Law, University of Krisnadwipayana, Indonesia. 2 UNPFII ‗Report on the Seventh Session (21 April - 2 May 2008)‘ ECOSOC Official Records, Supplement No. 23 (2008) E/2008/43, E/C.19/2008/13, Paragraph 49. 3 ibid. 4 See: (1) ibid; and (2) For a more detailed discussion related to indigenous peoples in the Pacific region, see a number of articles in Randall S. Abate and Elizabeth Ann Kronk (eds), Climate Change and Indigenous Peoples: The Search for Legal Remedies (Edward Elgar 2013), for example: (1) Erika J. Techere, ‗Climate Change, Legal Governance, and the Pacific Islands: An Overview; (2) Victoria Sutton, ‗Fiji: Climate Change, Tradition, and Vanua‘; and (3) Clement Yow Mulalap, ‗Island in the Stream: Addressing Climate Change from a Small Island Developing State Perspective‘. 5 UNPFII ‗Report on the Eighth Session (18-29 May 2009)‘ ECOSOC Official Records, Supplement No. 23 (2009) E/2009/43, E/C.19/2009/14, Paragraph 44.
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‗Climate change has an impact on all aspects of life in the Arctic region, from traditional subsistence activities, including hunting, fishing, reindeer husbandry, farming, gathering and food sovereignty, to community health [;] [t]he melting permafrost, flooding and storm surges progressively destroy village sanitation, drinking water and other infrastructure in many Arctic communities‘.6
Indigenous peoples who live in or adjacent to forests have also been impacted by climate change, both directly and indirectly.7 For instance, mitigation8 and adaptation measures have already and could, in the future, violate the rights of indigenous peoples.9 For example, biofuel industries are being developed ‗in the name of remedying the impacts of climate change‘;10 however, the impacts of the industries ‗are resulting in the deforestation of large forest areas and the displacement of indigenous peoples‘.11 Furthermore, the United Nations Framework Convention on Climate Change (UNFCCC) regime‘s climate change mitigation mechanism that is called ‗Reducing Emissions from Deforestation and Forest Degradation in Developing Countries; and the Role of Conservation/Conservation of Forest Carbon Stocks, Sustainable Management of Forests, and Enhancement of Forest Carbon Stocks in Developing Countries‘ (REDD-plus) activities have already and could also, in the future, threaten the rights of indigenous
6 ibid. For a more detailed discussion related to indigenous peoples in the Arctic, see a number of articles in Abate and Kronk (eds) (n 4), for example: (1) Sophie Thériault, ‗Canadian Indigenous Peoples and Climate Change: The Potential for Arctic Land Claims Agreements to Address Changing Environmental Agreements‘; (2) Peter Van Tuyn, ‗America‘s Arctic: Climate Change Impacts on Indigenous Peoples and Subsistence‘; and (3) Irina L. Stoyanova, ‗The Saami Facing the Impacts of Global Climate Change‘. 7 See for example: UNPFII ‗Report on the Ninth Session (19-30 April 2010)‘ ECOSOC Official Records, Supplement No. 23 (2010) E/2010/43-E/C.19/2010/15, Paragraph 149. 8 UNPFII ‗Report on the Seventh Session‘ (n 2) Paragraph 5. 9 See: (1) ibid; and (2) UNPFII ‗Report on the Thirteenth Session (12-23 May 2014)‘ ECOSOC Official Records, Supplement No. 23 (2014) E/2014/43-E/C.19/2014/11, Paragraph 20. 10 UNPFII ‗Report on the Ninth Session‘ (n 7) Paragraph 149. 11 ibid.
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peoples.12 Moreover, other related activities or projects could also threaten indigenous peoples. The UNPFII has expressed its concern with: ‗[T]he increasing adverse impacts of climate change and by mitigation and adaptation measures such as large hydroelectric dams, nuclear power plants, [...], windmills and geothermal plants, which are being built in indigenous territories without the free, prior and informed consent or the full and effective participation of indigenous peoples‘.13
This article will focus on the role of the UNPFII in protecting indigenous peoples from the direct or indirect adverse effects of climate change. Nonetheless, it is important to underline the limitations of this article. The article is not intended to comprehensively discuss climate change and indigenous peoples from the UNPFII perspective. What the article will do is to focus more generally on how the UNPFII responds to the issue of climate change and to whom the UNPFII has given its recommendations. Furthermore, it needs to be pointed out that the article will be mainly based on the recommendations of the UNPFII as written in its annual session reports.14
2. The Role of the UNPFII This chapter is divided into three sections. The first section will discuss the context of the UNPFII and the UNFCCC regime. The second section will explain the context of the UNPFII and relevant parties under the UN system. The third section will focus on the context of the UNPFII and States. Before we start discussing the first part, it is important to understand what the UNPFII is. The UNPFII was established by a resolution of the Economic and Social Council (ECOSOC) in 2002.15 The resolution stated that the UNPFII should ‗serve as an advisory body to the [ECOSOC] with a
12 For a comprehensive discussion on REDD-plus and the rights of indigenous peoples, see in general: Handa Satyanugraha Abidin, ‗REDD-Plus and the Protection of Indigenous Peoples under International Law‘ (Ph.D. thesis, University of Edinburgh 2013). 13 UNPFII ‗Report on the Thirteenth Session‘ (n 9) Paragraph 20. 14 Economic and Social Council (ECOSOC) ‗Establishment of a Permanent Forum on Indigenous Issues‘ Res 2000/22 (28 July 2000) Paragraphs 2 and 4-5. 15 ibid.
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mandate to discuss indigenous issues‘.16 It is crucial to note that the resolution also mandated the UNPFII give its recommendations not only to the ECOSOC, but also to ‗programmes, funds and agencies of the United Nations through the [ECOSOC]‘.17 The structure of the UNPFII is sui generis because: ‗[There are] sixteen members, eight members to be nominated by Governments and elected by the Council, and eight members to be appointed by the President of the Council following formal consultation with the Bureau and the regional groups through their coordinators, on the basis of broad consultations with indigenous organizations, taking into account the diversity and geographical distribution of the indigenous people of the world as well as the principles of transparency, representativity and equal opportunity for all indigenous people, including internal processes, when appropriate, and local indigenous consultation processes […]‘.18 The discussion regarding the UNPFII and the UNFCCC regime is important. Albeit a number of treaties could be used to deal with the adverse effects of climate change, the UNFCCC regime—through the 1992 UNFCCC as well as the 1997 Kyoto Protocol— plays the central role in dealing with the adverse effects of climate change. The 1992 UNFCCC has the ultimate objective to: ‗[A]chieve, in accordance with the relevant provisions of the Convention, stabilization of greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system‘.19
2.1. The UNPFII and the UNFCCC Regime The UNPFII has made climate change one of its concerns since the first session of the UNPFII in 2002.20 In its First Session, the UNPFII requested the UNFCCC regime be engaged with indigenous peoples in its
16 ibid, Paragraph 2. 17 ibid, Paragraphs 2 and 5. 18 ibid, Paragraph 1. 19 UNFCCC (with annexes) (adopted 5 May 1992, entered into force 21 March 1994) 1771 UNTS 107 Article 2. 20 UNPFII, ‗Report on the First Session (13-24 May 2002)‘ ECOSOC Official Records, Supplement No. 23 (2002) E/2002/43/Rev.1, E/CN.19/2002/3/Rev.1, Paragraphs 28 and 30.
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activities.21 The UNPFII has also requested its members be invited by the UNFCCC regime as observers at the UNFCCC‘s COP.22 In the Second Session, in 2003, the UNPFII gave its recommendation to the UNFCCC regime to: ‗[C]onsider the possible establishment of an ad hoc open-ended intersessional working group on indigenous peoples and local communities and climate change, whose objectives would be to study and propose timely, effective and adequate solutions to respond to the urgent situations caused by climate change that indigenous peoples and local communities face‘.23
The UNPFII also recommended that the UNFCCC regime to ‗consider providing necessary funding support to Forum members and indigenous peoples to guarantee their participation and to strengthen their participation‘.24 Following the recommendation of the establishment of the ‗working group on indigenous peoples‘ in its Second Session,25 in its Third Session, in 2004, the UNPFII reminded the UNFCCC regime to ‗sponsor a workshop to discuss the merits and mechanisms for the establishment of a working group on indigenous peoples within the Conference of the Parties process‘.26 The UNPFII also recommended the UNFCCC regime ‗support indigenous [peoples‘] organizations in order to develop research capacity, work and proposals on human indicators applicable to the implementation of the environmental conventions‘.27 In the Fourth Session, in 2005, the UNPFII had no explicit or specific recommendation for the UNFCCC regime.28 In the Fifth Session, in 2006, the UNPFII has made a regional recommendation to the African states ‗to comply
21 ibid, Paragraph 28. 22 ibid, Paragraph 30. 23 UNPFII, ‗Report on the Second Session (12-23 May 2003)‘ ECOSOC Official Records, Supplement No. 23 (2003) E/2003/43, E/C.19/2003/22, I, Paragraph 47. 24 ibid. 25 ibid. 26 UNPFII, ‗Report on the Third Session (10-21 May 2004)‘ ECOSOC Official Records, Supplement No. 23 (2004) E/2004/43, E/C.19/2004/23, I, Paragraph 78. 27 ibid, I, Paragraph 85. 28 See in general: UNPFII, ‗Report on the Fourth Session (16-27 May 2005)‘ ECOSOC Official Records, Supplement No. 23 (2005) E/2005/43, E/C.19/2005/9.
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with and support United Nations resolutions and mechanisms that include references to indigenous peoples‘,29 including in the context of the UNFCCC.30 In its Sixth Session, in 2007, the UNPFII recommended that the follow-up report of the Special Rapporteurs of the UNPFII regarding oil palm and other commercial tree plantations and its impacts on indigenous peoples ‗be undertaken to include information received and gathered from‘31 inter alia the UNFCCC regime.32 The Seventh Session of the UNPFII, in 2008, was prominent because the theme of the session was ‗Climate change, biocultural diversity and livelihoods: the stewardship role of indigenous peoples and new challenges‘.33 The UNPFII recommended ‗the effective participation of indigenous peoples‘34 in ‗strengthening the links between climate change, biodiversity and cultural diversity under the Convention on Biological Diversity or the [UNFCCC]‘.35 The request of the establishment of the ‗working group on indigenous peoples‘ came up again in the Seventh Session.36 The UNPFII recommended that the UNFCCC regime: ‗[D]evelop mechanisms for indigenous peoples‘ participation, as appropriate, in all aspects of the international dialogue on climate change, particularly the forthcoming negotiations for the next Kyoto Protocol commitment period, including by establishing a working group on local adaptation measures and traditional knowledge of indigenous peoples [...]‘.37
29 UNPFII, ‗Report on the Fifth Session (15-26 May 2006)‘ ECOSOC Official Records, Supplement No. 23 (2006) E/2006/43, E/C.19/2006/11, I, Paragraph 19. 30 ibid. 31 UNPFII, ‗Report on the Sixth Session (14-25 May 2007)‘ ECOSOC Official Records, Supplement No. 23 (2007) E/2007/43, E/C.19/2007/12, Paragraph 30 32 ibid. 33 See in general: UNPFII ‗Report on the Seventh Session‘ (n 2). 34 ibid, Paragraph 19. 35 ibid. 36 UNPFII, ‗Report on the Second Session‘ (n 23) I, Paragraph 47; and (2) UNPFII, ‗Report on the Third Session (n 26), I, Paragraph 78. 37 UNPFII ‗Report on the Seventh Session‘ (n 2) Paragraph 30.
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The UNPFII also recommended that the UNFCCC regime ‗in cooperation with States, provide adaptation funds to indigenous peoples affected by climate change-related disasters‘.38 Furthermore, in a more general context, the UNPFII requested that: ‗[A]ll States that have not yet done so to implement the [...] Kyoto Protocol, the [UNFCCC] and other international initiatives that address climate change and biocultural diversity in conjunction with indigenous peoples, including indigenous women, in a full and effective way‘.39
In the context of REDD-plus, the UNPFII recommended to ‗secure the rights of indigenous peoples living in forests and rewarding their historical stewardship role and continuing conservation and sustainable use of forests‘.40 Furthermore, the UNPFII also recommended the following in the context of one of the REDD-plus initiatives: ‗In the case of those who [indigenous peoples] opt not to participate in reducing emissions from deforestation and degradation or in the projects supported by the Partnership Facility [The World Bank‘s Forest Carbon Partnership Facility] , their choice should be respected‘.41
The Eighth (2009),42 Eleventh (2012),43 and Thirteenth (2014)44 Sessions have no explicit nor specific recommendations to the UNFCCC regime. In its Ninth Session, the UNPFII recommended that the late Ad Hoc Working Group on Long-term Cooperative Action of the UNFCCC45 ‗recognize and integrate the crucial role and relevance of indigenous knowledge systems in accordance with the United Nations Declaration on the
38 ibid, Paragraph 36. 39 ibid, Paragraph 38. 40 ibid, Paragraph 44. See in general: Abidin (n 12). 41 ibid, UNPFII ‗Report on the Seventh Session‘ Paragraph 40. See in general: ibid, Abidin. 42 See in general: UNPFII, ‗Report on the Eighth Session‘ (n 5). 43 See in general: UNPFII, ‗Report on the Eleventh Session (7-18 May 2012)‘ ECOSOC Official Records, Supplement No. 23 (2012) E/2012/43-E/C.19/2012/13. 44 See in general: UNPFII ‗Report on the Thirteenth Session‘ (n 9). 45 The AWG-LCA has ceased to exist. See: COP (UNFCCC) ‗Establishment of an Ad Hoc Working Group on the Durban Platform for Enhanced Action‘ Decision 1/CP.17 (11 December 2011) FCCC/CP/2011/9/Add.1, Paragraph 1.
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Rights of Indigenous Peoples (UNDRIP)‘.46 In the Tenth Session (2011), the UNPFII requested that the UNFCCC regime ‗develop mechanisms to promote the participation of indigenous peoples in all aspects of the international dialogue on climate change‘.47 In the Twelfth Session (2013), the UNPFII invited the UNFCCC regime to ‗convene a workshop on African pastoralism, indigenous peoples‘ rights and climate adaptation‘.48 The question that should be asked is how it is that the UNFCCC regime responds to the recommendations of the UNPFII? The UNFCCC regime, through the UNFCCC Secretariat, has a number of times submitted its respond to the UNPFII.49 In 2005, the UNFCCC Secretariat responded the recommendations of the UNPFII in its Second Session (regarding a ‗working group on indigenous peoples‘)50 and Third Session (regarding a ‗working group on indigenous peoples‘ and the indigenous peoples‘ organizations)51 as mentioned in the earlier section.52 The UNFCCC Secretariat also responded the UNPFII‘s recommendations in its Seventh Session regarding a ‗working group on indigenous peoples‘53 and adaptation fund54 for indigenous peoples.55 In 2011, the UNFCCC Secretariat also provide a response to the recommendation of
46 UNPFII ‗Report on the Ninth Session‘ (n 7) Paragraph 13. 47 UNPFII, ‗Report on the Tenth Session (16-27 May 2011)‘ ECOSOC Official Records, Supplement No. 23 (2011) E/2011/43-E/C.19/2011/14, Paragraphs 21 and 31. 48 UNPFII, ‗Report on the Twelfth Session (20-31 May 2013)‘ ECOSOC Official Records, Supplement No. 23 (2013) E/2013/43-E/C.19/2013/25, Paragraph 33. 49 See: (1) UNFCCC, ‗Contribution by the United Nations Framework Convention on Climate Change (UNFCCC)‘ Tenth Session of the UNPFII (2011); (2) UNFCCC, ‗Information Received from UNFC CC‘ (2009)
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the UNPFII in its Ninth Session concerning the need to ‗recognize and integrate the crucial role and relevance of indigenous knowledge systems‘56 in the context of the negotiation in the UNFCCC regime.57 Although the recommendations of the UNPFII to the UNFCCC regime are not completely granted by the UNFCCC regime,58 we can see at least there is good faith, a goodwill gesture by the UNFCCC regime—through its Secretariat—to cooperate with the UNPFII regarding the issues of indigenous peoples and climate change.
2.2. The UNPFII and Other Relevant Parties under the UN System Although the UNFCCC regime is the place in which to primarily address the problem of climate change, there are other involved parties under the UN System that are important in fighting against the adverse effects of climate change. Since its First Session the UNPFII has understood this matter and has been consistent in its subsequent sessions in addressing the issues of indigenous peoples and climate change with the relevant parties.59 It is important to note that as the advisory body, the UNPFII of course must submit its report to the ECOSOC.60 Other relevant parties that have been provided recommendations by the UNPFII are inter alia:61 (1) the Commission on Sustainable Development (CSD); (2) the Division for the Advancement of Women (DAW) (which has since merged become the United Nations Entity for Gender Equality and the Empowerment of Women/UN Women);62 (3) the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP); (4) the Food and Agriculture
56 UNPFII ‗Report on the Ninth Session‘ (n 7) Paragraph 13. 57 UNPFII ‗Information Received from the United Nations System (Addendum: World Intellectual Property Organization, World Trade Organization, and the UNFCCC)‘ (n 49) 1. 58 See footnote 49. 59 See in general: all the annual session reports of the UNPFII. 60 ECOSOC ‗Establishment of a Permanent Forum on Indigenous Issues‘ (n 14). 61 In alphabetical order. 62 UN Women, ‗About UN Women‘
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Organization (FAO); (5) the Inter-Agency Support Group for Indigenous Issues (IASG); (6) the Intergovernmental Panel on Climate Change (IPCC); (7) the International Fund for Agricultural Development (IFAD); (8) the International Maritime Organization (IMO); (9) the Office of the United Nations High Commissioner for Human Rights (UNHCR); (10) the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People; (11) the United Nations Children‘s Fund (UNICEF); (12) the United Nations Collaborative Programme on Reducing Programme Emissions from Deforestation and Forest Degradation (UN-REDD Programme); (13) the United Nations Conference on Trade and Development (UNCTAD); (14) the United Nations Development Programme (UNDP); (15) the United Nations Educational, Scientific and Cultural Organization (UNESCO); (16) the United Nations Environment Programme (UNEP); (17) the United Nations Forum on Forests (UNFF); (18) the World Bank; and (19) the World Health Organization (WHO).63 Many of the recommendations to the parties mentioned above are also given in the same paragraphs with the recommendations to the UNFCCC regime.64 To avoid duplication of what has been pointed out in the previous section,65 this section will only mention a few examples of the UNPFII‘s recommendations that are not included the UNFCCC regime. For example, the UNPFII has recommended that the EMRIP and the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People ‗evaluate whether existing and proposed climate change policies and projects comply with the standards set by the
63 See for example: (1) UNPFII ‗Report on the First Session‘ (n 20) Paragraphs 28 and 30; (2) UNPFII ‗Report on the Third Session‘ (n 26) I, Paragraph 85; (3) UNPFII ‗Report on the Fifth Session‘ (n 29) I, Paragraph 19; (4) UNPFII ‗Report on the Sixth Session‘ (n 31) Paragraphs 13-14 and 130; (5) UNPFII ‗Report on the Seventh Session‘ (n 2) Paragraphs 20, 40-41, 126, and 138; (6) UNPFII ‗Report on the Ninth Session‘ (n 7) Paragraphs 19, 37, 72 and 103; (7) UNPFII ‗Report on the Tenth Session‘ (n 47) Paragraph 31; and (8) UNPFII ‗Report on the Twelfth Session‘ (n 48) Paragraph 33. 64 ibid. 65 See Section 2.1 in Chapter Two.
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[UNDRIP]‘.66 The UNPFII has recommended ‗that [the] FAO continue to provide support for [the] communication platforms [of indigenous peoples] and their activities in the field of participatory territorial development and community-based adaptation to climate change‘.67 Furthermore, in the context of REDD-plus, the UNPFII has also urged the UN-REDD Programme to be ‗in accordance with the principle of free, prior and informed consent and the Declaration [UNDRIP]‘.68
2.3. The UNPFII and the States In addition to the organs under the UN system, the UNPFII has also provided recommendations directly to States. For example, the UNPFII has provided a recommendation to Denmark in relation to the COP 15, in 2009, to ‗engage indigenous representatives and invite the Chairperson of the [UNPFII] and other members of the [UNPFII] to participate‘.69 Furthermore, the UNPFII also appreciated what Norway have done to organize a side event on the ‗Oslo-Paris Initiative on REDD-plus‘ in the UNPFII‘s Ninth Session.70 The UNPFII stated that ‗the Initiative [should] ensure the inclusion and the full and effective participation of indigenous peoples and that it not remain as an initiative of Governments only‘.71
3. Recommendations The UNPFII has provided recommendations to many parties between its First Session, in 2002, and its Thirteenth Session, in 2014. What the UNPFII has done should be appreciated by any parties that are concerned with the protection of indigenous peoples, and climate change in particular.
66 UNPFII ‗Report on the Seventh Session‘ (n 2) Paragraph 138. 67 UNPFII ‗Report on the Ninth Session‘ (n 7) Paragraph 37. 68 ibid, Paragraph 19. 69 UNPFII ‗Report on the Seventh Session‘ (n 2) Paragraph 46. 70 UNPFII ‗Report on the Ninth Session‘ (n 7) Paragraph 160. 71 ibid.
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There are at least two important recommendations that should be put forward to the UNPFII. First, although the UNPFII has given its recommendations to many parties, the UNPFII should still increase the list of parties, drawing on parties that not only come from the UN system, but also from outside the UN system, that have a capacity in the context of indigenous peoples and climate change. This is important in order to make the recommendations of the UNPFII more widely known by the relevant parties. Thus, it would not only increase the efforts of the relevant parties in dealing with the adverse effects of climate change, but also improve the protection of the rights of indigenous peoples. Second, there should be a specific monitoring report regarding whether or not the recommendations of the UNPFII have been implemented by the parties that have received the recommendations. This monitoring report should be included in every the UNPFII‘s annual session reports submitted to the ECOSOC.72
72 ECOSOC ‗Establishment of a Permanent Forum on Indigenous Issues‘ (n 14) Paragraphs 2 and 4-5.
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THE POLITICS OF GENDER AND SEXUALITY PREJUDICE AGAINST WOMEN IN NIGERIA: A LOOK AT THE NIGERIAN LEGAL STATUTES
Dr. Fatima Waziri – Azi*1
1.0. INTRODUCTION Various forms of discrimination against women not only exist in all societies, but are even codified by the very governments which should be fighting that injustice.2 The 1999 Constitution of Nigeria prohibits discrimination on the grounds of gender, but customary and religious laws continue to restrict women‘s rights. Since Nigeria is a federal republic, each state has the authority to draft its own legislation. However, any law, which is contradictory to Federal Law or the Constitution, can be challenged in a Federal Court. However, the lack of the harmonization of laws makes it challenging to remove discriminatory measures. Although significant changes have occurred in the lives of Nigerian women in the last few decades, through years of women activism whereby women in Nigeria now occupy some key positions in the executive and legislative arms of government, yet, Nigerian women still bear the burden of poverty, face political exclusion, and suffer from gender based violence, discriminatory laws, traumatizing traditional practices and attitudes. Having said that, discrimination against women is defined as "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field."3
*1 LL.B., LL.M., S.J.D. (PH.D. LAW). Research Fellow (1) and Head of Department, Public Law. Nigerian Institute of Advanced legal Studies, Supreme Court Complex, Abuja – Nigeria 2 Sarah Jones, in Women Can‘t Wait. 3 Article 1 of the United Nations Convention on the Elimination of all forms of Discrimination Against Women of 1979.
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2.0. STATUS OF WOMEN IN CONTEMPORARY NIGERIA
In Nigeria as elsewhere in Africa, educated women enjoy a higher status, depending on their credentials and social connections with male authorities. Women in the informal economy can often secure a measure of personal autonomy through their economic activities, but men often control their access to land and credit. However, by contrast, formal education, especially higher level training, has given a small female minority access to wage labor and a strong economic base outside the direct control of men, but the degree of personal autonomy this affords is significantly mediated by the social boundaries and expectations women must adhere to. For both men and women, marriage maintains its traditional significance as a rite of passage to adulthood and social responsibility. The status of married women is inextricably tied to the quandary of belonging and indigene ship whether by marriage or by birth. However, women remain the subordinates of men, their roles being that of mothers, housewives and companions. Initially, women were offered formal education mainly to support their primary roles, with little or no access to paid employment opportunities. When employment opportunities opened up for women, they struggled to fit in career aspirations that society dictated must remain secondary or complementary to their primary family roles. Not to mention the social stigma attached to being single and the heightened pressure to marry, precluding other forms of social success. Beyond the challenges of marital relations, Nigerian women must deal with oppressive practices, which reinforce their position as subordinates to men in virtually all-social contexts. As we all know, the role of women in the overall development of a nation cannot be over emphasized and although the Nigerian constitution guarantees equal rights for all citizens regardless of sex, discriminatory practices and the adherence to some negative norms have tended to impede women‘s participation in development.
3.0. A LOOK AT NIGERIAN LAWS AND STATUTES THAT DISCRIMINATES AGAINST WOMEN.
3.1. THE 1999 NIGERIAN CONSTITUTION (AS AMENDED)
A). Chapter III of the Constitution Section 26 (2) extends the citizenship rights to the female spouse of a Nigerian Citizen. However the Constitution makes no provision
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for the process by which non-Nigerian men married to Nigerian women and who are so desirous, may become Nigerian citizens. The silence has continued to wreak untold hardship on the stability of many marriages. I see this section as a blatant discrimination against women and cannot comprehend the reasoning behind this law. Nigeria is not the only country with such sexist law, many countries in the Middle East region4 also have such laws where women who marry foreign men cannot confer their nationality to their husbands, or even to their children. Men, on the other hand, can pass on their nationality to their wives and children easily. Discriminatory laws denying women equal nationality rights as their male counterpart undermine women‘s status as equal citizens in their countries and such laws only goes to show that women do not enjoy a direct relationship with the state.
B.) Still on the Nigerian Constitution, there should be a neutral gender provision in the constitution to ensure that the language of the constitution includes men and women alike rather than just men as it presently does. The Constitution uses phrases like ―He/Him‖ to refer to men and women, the former should be substituted with ―He/She‖ and Him/Her respectively.
C). Another controversial section heating up the polity is section 29(4) of the 1999 Nigerian Constitution as amended. Various interpretations have been accorded to this section. The Senate of the Federal Republic of Nigeria recently reviewed some of the provisions of the 1999 Constitution and Section 29(4) (b) was one of such provisions.5 The upper house of legislation moved for the deletion of Section 29(4)(b) but one particular senator argued against the motion on the ground that such amendment would violate Islamic law, which, according to the Senator provides that any married woman is of full age. A repeat voting was demanded and the resolution
4 Some of these countries including Lebanon, Bahrain, Jordan, Kuwait, Oman and Syria 5 Section 29(1) states that: any citizen of Nigeria of full age who wishes to renounce his Nigerian citizenship shall make a declaration in the prescribed manner for the renunciation. (2) The President shall cause the declaration made under subsection (1) of this section to be registered and upon such registration, the person who made the declaration shall cease to be a citizen of Nigeria. (3) The President may withhold the registration of any declaration made under subsection (1) of this section if- (a) the declaration is made during any war in which Nigeria is physically involved; or (b) in his opinion, it is otherwise contrary to public policy. (4) For the purposes of subsection (1) of this section. (a) "Full age" means the age of eighteen years and above; (b) any woman who is married shall be deemed to be of full age. (Emphasis supplied)
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was that section 29(4)(b) be retained and not deleted as earlier moved for. Looking closely at Section 29(4)(b) it deals with the renunciation of Citizenship and not marriage or indeed, marriageable age but in this situation, it is important that the legislators pay attention and reconsider what I classify as a hasty decision to retain S.29 (4)(b). Nigerians have to look at the bigger picture and consider more intricate issues as opposed to whether or not the resolution to retain S.29(4)(b) has the effect of endorsing underage marriage.
The Supreme Court held in Inakoju v. Adeleke6 stated that any provision in a statute or other piece of legislation which is in subsections, must be read as a whole and not fragmentary. It is a known principle of statutory interpretation that the first rule in interpreting a provision is to look at the ordinary or natural meaning of the words used, which here is the literal rule. Applying these principles to S.29 (4) (b), it is clear that the Constitution provides that it is only for the purpose of renunciation of citizenship that a married woman is presumed to be of full age. With these attributes of citizenship/nationality in mind, can it be said with confidence that a girl understands and comprehends the notion of this bond and can come to a well- informed decision about severing ties with his/her country simply because she is married? Or does it connote that any women less than the age of eighteen years who has entered the institution of marriage should be ―deemed‖ old enough be able to make such decision?
The controversy in the provision therein stems from “any woman who is married”. The Constitution Review Committee of the Senate had rightly recommended that Section 29(4) (b) of the Constitution be deleted, as citizenship has no bearing on gender. The Senate failed to appreciate that the Child‟s Right Act, 2003 has prescribed eighteen years as the minimum age of marriage in Nigeria in line with the provisions of the United Nations Convention on the Right of the Child which was ratified by Nigeria in 2001. It is however my opinion that section 29 (4) can serve its purpose and purport without the existence of subsection (b). It is important to note that, retaining this sub section means child sexual abuse is condoned in Nigerian law because although individuals are not recognized as adults until they are eighteen
6 (2007) 4 NWLR (Pt. 1025) 423
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years of age, protection from sexual abuse stops before adulthood. Children are protected only until they are fourteen years old, according to the Penal Code (Northern Nigeria). Under the Criminal Code (Southern Nigeria) sexual abuse of children between the ages of thirteen till sixteen is known as defilement and may be punished, but not as severely as for rape.7
4.0. THE NIGERIAN CRIMINAL CODE
A). The Nigerian Criminal Code8 discriminates against women on the issue of punishment against assault offences. Section 353 of the criminal code states that, any person who unlawfully and indecently assaults any male person is guilty of a felony, and is liable to imprisonment for three years. The offender cannot be arrested without a warrant. Now, Section 360 states that if you unlawfully and indecently assault a woman or girl, that person is guilty of a misdemeanor, and is liable to imprisonment for two years. Marital rape on the other hand is the forced or coerced sexual intercourse between wife and husband. Nigerian Law does not recognize this as a crime, at best, a husband who forces his wife to have sex may be found guilty of assault, wounding, or grievous harm depending on the degree and effect of the force he used on his wife, and could be sentenced to imprisonment for up to 2, 3, or 7 years, respectively. However, this is usually limited to situations where the couple has separated (i.e. they are not living together or co-habiting). Also, Section 182 of the Penal Code9 provides that ―sexual intercourse by a man with his own wife is not rape if she has attained puberty‖. Those advocating for recognition of marital rape claim that this provision condones defilement of young girls and I agree with their notion because of the issue of child marriage. Rape of a wife is generally not recognized as an offence even where the wife is wounded in the course of the husband forcing sex on her.
7 In Lagos State sexual abuse of a child under eleven years old is a felony with a punishment of life imprisonment. However sexual abuse of a girl child between the ages of eleven till thirteen years is merely a misdemeanour or indecent treatment, with a punishment of two years imprisonment. Boys are protected a little longer, but till the age of fourteen years only in east, and west Nigeria and in Edo. Furthermore, prosecution must be started within two months of the offence and there is no conviction on uncorroborated evidence. 8 Criminal Code Act, Chapter 77, Laws of the Federation of Nigeria (1990). 9 Penal code is applicable to Northern Nigeria
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B). Section 221 of the Criminal Code, which deals with defilement of girls less than sixteen years, provides that any person who has or attempts to have unlawful carnal knowledge of a girl being of or above thirteen years and under sixteen years of age; or knowing a woman or girl to be an idiot or imbecile, has or attempts to have unlawful carnal knowledge of her, is guilty upon the uncorroborated testimony of one witness. It is interesting to know that most of the defilements of this kind are done in private and not in public with hundreds of witnesses. How realistic is this section to provide for the corroboration of one witness.
C). Rape has been defined in section 357 of the Criminal code as ―any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent, if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of harm, or by means of false and fraudulent representation as to the nature of the act, or, in the case of a married woman, by personating her husband, is guilty of an offence which is called rape‖. By defining Rape as vaginal penetration, no matter how slight, Nigerian Law does not protect those who are sexually abused with instruments other than a penis. Things like hands, knives, bottles or sticks have been used in some cases. In situations like these, or in the case of anal rape, the attacker may be found guilty of indecent assault, or indecent treatment, but this has a lower punishment than rape
D). The burden of proof of lack of consent in rape allegations is with the prosecution. This means that the victim herself has to prove she did not consent. This is often difficult to do, especially as these offences frequently take place where there are no witnesses. Furthermore, the alleged rapist is allowed to bring information about the woman‘s past life in order to argue that she was not a virgin (i.e. that if a woman has ever had sex she could never refuse to have sex again). Thus, women or girls are often forced to live through their own rape twice (once in life and once in court) without having the rapist punished. In some countries there are rape shield laws. For instance the victim‘s identity is protected so that people do not gossip about her. Another example is that the alleged rapist is not allowed to make any reference to the victim‘s past sexual life, except if she has had intercourse with him before. However, in Nigeria, there is no such protection for a woman who has been sexually abused or raped.
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5.0. THE NIGERIAN PENAL CODE Section 55(1) (d) of the Penal Code, is one section that has and is still causing so much debate. Section 55(1) (d) states that ―Nothing is an offence, which does not amount to the infliction of grievous harm upon any person and which is done by a husband for the purpose of correcting his wife. Such husband and wife being subject to any natural law or custom in which such correction is recognized as lawful.‖ The same Penal Code states that, any verbal abuse which is intended to insult the modesty of a woman or any intrusion on her privacy is an offence and the offender may be sentenced to up to one-year imprisonment or fine or both. Even though this section is open to multifaceted interpretation, I believe we can all honesty agree that it condones domestic violence and may be used as justification for abuse against women in matrimonial relationships.
6.0. WOMEN INHERITANCE RIGHTS UNDER NIGERIAN CUSTOMARY LAWS
The traditional African society to which Nigeria belongs has perhaps been the major problem facing the female gender over the years. The cultural practices of the various constituent tribes, societal norms, illiteracy, poverty, religious beliefs, have all fueled the continuing deprivation and discrimination women directly or as in modern times, indirectly suffered in the hands of their male counter parts and the society as a whole. Customary inheritance practices that deny women their right to inherit land and other property have devastating repercussions directly on the lives of women and female children. The most significant of which is the loss of rights to shared property, leading to destitution and pauperization. Yet these practices persist in Nigeria, by virtue of discriminatory customary laws and tradition as well as social norms and attitude. The question of women‘s inheritance rights has become particularly urgent in recent years for a number of reasons. The result is that large numbers of women are being widowed at a younger age—at a time when their access to productive resources are essential if they are to continue providing for themselves and for their dependents.
The issue of inheritance is vital for women because it relates to the underlying reasons for women‘s high level of poverty and housing insecurity today, because inheritances rights play a very fundamental role in the transfer of wealth in the
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society, such that a woman can use their land or property as collateral in acquiring a loan form the bank. The Land Use Act of 1978, CAP. 202, 1990 grants every Nigerian equal access to land. Clearly, it was formulated on the false premise of gender equality, but land still remains largely inaccessible to woman as it is almost always registered in a man‘s name. The Constitution of the Federal Republic of Nigeria in section 17 provides for the equality of rights, obligations and opportunities. Property rights for all are secured by section 43, which confers upon all Nigerians the right to acquire and own property anywhere in Nigeria.
The majority of marriages in Nigeria are entered into under customary law, and it is this code that determines the rights of the spouses and their family members. Customary laws are unwritten and passed orally from one generation to the next and these laws varies greatly from area to area, and even from tribe to tribe. Generally, inheritance is based on the principle of primogeniture that is the eldest surviving son inherits all the deceased‘s property. Under customary law, a married woman is not regarded as a permanent member of her husband‘s family. Once a woman leaves her natal family to be married, she no longer regarded as a member of that family either. In the Igbo culture of Eastern Nigeria, due to discrimination against widows in inheritance, women have a desperate need to produce sons so that through them they will be able to access land and have a roof over their heads. A widow herself is considered part of the property, and is only allowed to remain on the property with the permission of the eldest son and heir. She has no right to inherit any part of the estate. Daughters have virtually no rights to inherit their father‘s moveable and immoveable property. Under the nrachi or idegbe custom, which is practiced in various communities in Nigeria, a daughter can inherit where she chooses to remain unmarried in her father‘s home with a view to raising children there. This situation arises when a deceased man leaves an estate, but no surviving male issue to inherit it. The idea underlying this practice is to save the linage from extinction. The daughter, now considered an idegbe or nrachi, is entitled to inherit both
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moveable and immoveable property from her deceased father‘s estate. The legal interest vests in her until she gives birth to her own children. However, if she bears sons and daughters, the sons rather than the daughters succeed her in accordance with the rule of primogeniture. Under the law governing the actions of the higher courts, the observance and enforcement of every native law and custom, which is ―not repugnant to natural justice, equity and good conscience‖, is prescribed. It makes clear that a High Court does not need to, and should not, apply any native law and custom that is found to be repugnant to natural justice, equity and good conscience, and instead should apply statutory law. This was the case in Mojekwu V Mojekwu,10 decided by the Court of Appeal in Enugu state on the 10th of April, 1997. Where the court ruled that the oli - ekpe custom of the Nnewi people of Anambra state is discriminatory in nature.11 This custom prescribes that if there is no direct son to inherit the
10 The appellant sought a declaration, that as the only surviving male relative of his uncle, who died in 1944 and his father who died in 1963, he was entitled to inherit property bought by the Uncle from the Mgbelekeke family of Onitsha under Kola tenancy land tenure system. The appellant claimed the property pursuant to the native law and custom of Nnewi, in particular the custom of 'Oli-ekpe'. The appellant paid the necessary kola to the Mgbelekeke family and the two daughters of the first wife of the deceased uncle signed, as witnesses, the docket of consent from the Mgbelekeke family. The first wife remained at the property and the respondent joined her later with the appellant's permission in around 1970 having gained judgment in an earlier case started in 1959 when the appellant's uncle sought to take over the property. The respondent, the second wife of the Uncle, argued that the appellant was not head of the Mojekwu family and had not inherited the property. The appellant appealed against the trial judge's decision for the respondent. The Court of Appeal held that; the Nnewi custom of 'Oli-ekpe' is discriminatory and any form of societal discrimination on grounds of sex is unconstitutional and against the principles of an egalitarian society. A court of law cannot invoke a customary law which is repugnant to natural justice, equity and good conscience. Therefore, the personal law of the appellant is not applicable and instead the law of the place where the property is situated applies, which in the present case is the Mgbelekeke family kola customary tenancy as applied by the Kola Tenancy Law, 1935. Land held under kola tenancy is inheritable by children of either sex of the deceased kola tenant upon production of further kola by the succeeding child. The signature of the respondent and others on the docket stating the appellant's claim to the Kola Tenancy merely acted to authenticate the appellant's signature and did not act to esstop her claim. Furthermore the docket was merely an articulation of the 'Oli-ekpe' custom. In view of the decision of the learned judge the alternative reliefs requested by the appellant are superfluous or functionless. The appellants claim to the disputed property is dismissed and costs are awarded in favor of the respondent. 11 Per Tobi (Chief Judge) stated that: Article 5 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) calls on State Parties to modify social and cultural patterns of conduct in order to eliminate prejudices, customs and practices based
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property (despite the existence of daughters), the deceased‘s nephew is to inherit the entire estate. Also in Muojekwu V Ejikeme,12 the Supreme Court, affirmed a court of appeal decision that a female child can inherit from her deceased father‘s estate without the nrachi. Despite these fantastic court decisions, this custom still persist. 7.0. CONCLUSION
The need to combat all gender inequalities in every country of the world cannot be overemphasized in view of the numerous devastating consequences gender discrimination has occasioned on women. On a lighter note I can posit that the tide is changing in law for women, looking at the Federal High Court decisions that have been discussed. Whether same thing is obtainable in practice is a matter for future discussion. Having said that, we cannot ignore the fact that the struggle for gender equality in Nigeria is still at its very infancy and more still needs to be done to fill out that gap. There are still tons of issues that need to be resolved in this dear country of ours as regards women. We need national laws to eliminate violence and discrimination against women, foster gender equality, etc. A review of all gender discriminatory laws in Nigeria should be conducted starting with the 1999 Nigerian Constitution to demonstrate its total commitment to eradicate gender disparity. Expunging all despicable practices that impede the rights of women in Nigeria should be taken seriously. The Nigerian government should collaborate with traditional rulers and other stakeholders in Nigeria to ensure that all harmful cultural practices that target women should be eradicated. Cultural practices ceases to be culture once it proves to be harmful and repugnant to natural justice, equity and good conscience.
on the inferiority or superiority of either sex. V is a victim of such prejudices. In determining whether a customary law is repugnant to natural justice or incompatible with any written law, the standard is not the principles of English law; on the contrary the courts must look inwards to Nigerian jurisprudence. 12 R died intestate in 1996 without any surviving children. The appellants were R‘s two great grandsons, and his granddaughter, the third appellant. The granddaughter was born to R‘s daughter V and the great grandsons were born to V‘s two daughters. The appellants claimed that the Nnewi custom of Nrachi had been performed for V and accordingly the appellants were entitled to inherit R‘s property. The Nrachi custom enabled a man to keep one of his daughters perpetually unmarried under his roof in order to raise children, especially males, to succeed him. Any such daughter took the position of a man in the father‘s house and was entitled to inherit her father‘s property, and any children born to the woman would automatically be part of the father‘s household and accordingly entitled to inherit
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Laws should be used as an instrument of social change and social justice, and not an instrument for the perpetration of injustice.
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PROBLEMS OF DOMESTIC SERVANTS IN INDIA:
UNTOLD STORIES AND UNHEARD CRIES
Dr. Komal Vig*
Domestic work has a long history in India with both men and women working in others‘ homes as ‗servants‘. Domestic work is seen as menial and impure occupation which includes many types of workers, like ayah, kitchen helper, cook and sweeper. It is traditionally performed by people, mostly women and children and men with loyalty obligation and patronage. Thus, Domestic Servants can be defined as ―those servants who do cooking, care the children, cleaning utensils, washing clothes, cleaning and sweeping the houses in return for the payment of wages‖ In India, caste defines the hierarchy-- lower castes perform the ‗dirty‘ work of cleaning while higher caste servants cook. Though domestic work is not a new phenomenon in our country, it cannot simply be viewed as an extension of historical feudal culture where the affluent employed ‗servants‘. Domestic work is undervalued because value is not ascribed to women‘s work in their homes, and by extension, even paid work in others‘ homes is not given any value or regarded as work. It is also undervalued because it is often performed by poor, migrant women from lower castes. All these contribute to the inferior status of their work, both in their own minds and in society. Domestic work includes mental, manual and emotional aspects, including care work that is necessary to maintain people and communities. Domestic work is thus viewed as reproductive work that creates not only labour units but also people and social relations. Since social reproduction is not recognized as work, ______*Assistant Professor-I, Amity University, Noida
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domestic workers too receive no recognition as workers and are hence paid low wages. Over the last few years, studies on domestic work in India have noted the increase in the numbers of migrant female domestic workers in the cities. The growing participation of women in the labour force, changes in the organization of work and the intensification of work, as well as the lack of policies reconciling work and family life, the decline in state provision of care services, the feminization of international migration and the ageing of societies have all increased the demand for care work in recent years. India has witnessed large-scale migration over the last two decades of girls from tribal areas of Assam, Bihar, Chhattisgarh, Jharkhand, Madhya Pradesh and Orissa. These girls come with other girls from the village, through private recruiting agents, or other organizations to be employed as ‗maids‘ in urban households. With increasing migration of tribal girls, the trend of independent migration of girls has also seen a sharp rise. Problems faced by Domestic Servants Human Resources Development Report points out some common problems faced by the domestic servants which will be discussed as:-
1. Deplorable wages, High level of insecurity, Illiteracy and lack of marketable skills, Lack of confidence in securing other productive jobs. There are no standard norms that decide working wages. By and large, employers decide wages though this is often the ‗rate‘ of the area they live in. Wages also depend on the bargaining power of the domestic worker and workers‘ desperation for work. Experienced workers may be able to bargain for more while those desperate for work may be willing to work at lower rates. Other factors that influence decisions about wages include the type of tasks performed and the neighbourhood. Rates vary according to the task (for
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example, cooking attracts more wages than cleaning) and the socio-economic profile of employers. Activists and researchers have regularly pointed out that women workers face discrimination in the form non-recognition as workers, inequality of wages and denial of rights, especially in the unorganized sector. 2. Long and unregulated working hours, No paid holidays, No paid sick leave, Immense work load and No maternity benefits Domestic workers often work excessively long hours, without breaks, days off or holidays. Those who live with their employers are often considered ‗on call‘ to undertake work for their employer 24 hours per day. The pay is often very low, with wage payments frequently delayed. Some domestic workers may not be paid at all or only receive ‗payment in kind‘ such as food or accommodation. Domestic work is poorly regulated, undervalued, and many domestic workers are subject to serious abuses, including slavery. It is difficult to classify the servants according to the nature of their work in domestic service because almost all works in the houses are being done by them. The full-time servants had to do all works including food preparation. Few of full time servants are appointed for caring small children in day time. The daily working hours of full time servants varied from 6 to 10 hours. The part time servants have to do almost all cleaning and washing works in the house excluding kitchen work. The part time servants are working in more than one house daily; Their daily working hours varied from 4 to 10 hours. The full time servants exclusively depend upon their house matrons for food, though the offered food is low in quality. But most of the part time servants are offered some light food, not nutrient items, sometimes is left-over food. Generally, the employers cut wages whenever the servants do not turn up, though there are genuine reasons. At the same time, increase in work load in the houses in certain occasions do not increase their wage level.
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These facts are not cast-in-stone as workers are made to perform extra work with no additional compensation, especially during festivals or when employers have guests. There is no guarantee of employment as employers can ask workers to leave with no prior notice or financial compensation.. The tasks performed by either category of domestic workers may include cleaning (sweeping, swabbing and dusting), washing (clothes and dishes), or even putting machine-washed clothes on the clothesline or/and folding them, cooking, or preparation for cooking such as chopping vegetables and making dough, or cooking a part of meal, ironing, housekeeping and extensions of these outside the home such as shopping. Domestic work may also include childcare or care of the aged. Only a few workers get a weekly off; paid leave is often the result of difficult negotiations with the employers. Getting sick leave also depends on the good will of the employer. Instances of workers losing their jobs due to long leave taken at time of childbirth or ill health are often reported. Some also lose their jobs when they visit their villages. Deduction in wages for extra leave is a common practice among employers. Part-time workers are not allowed access to a toilet in the employers‘ homes. Many commute long distances and thus have no time to cook and carry food with them. They are often not provided with any tea or snacks and stay hungry till they get back home where they have to cope with difficult living conditions in urban slums. Migrant domestic workers are at a heightened risk of exploitation and many are trafficked for forced labor. They often fall victim to the deceptive job offers while in their home country and are coerced to work in conditions upon arrival to which they did not agree. Some fall into bonded labor as a result of the transportation and recruitment costs incurred in taking up a job abroad. In many countries their right to work is tied to a specific employer, meaning that they are less likely to leave slavery- like situation since they could be
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deported and lose their livelihood if they leave that employer. Language barriers and their isolation in the community also make it much more difficult for them to seek help in cases of abuse. Child domestic workers are also extremely vulnerable to slavery and abuse. Due to their young age, isolation and separation from their family they are inherently easier to coerce and control and have a lesser ability than an adult to object to a given task or situation. Some are trafficked, while others are in bonded labor, forced to work to pay off a loan their parents have taken. In most countries the minimum age for employment is 15 years old. Yet child domestic workers are often younger with some starting work as young as six years old. Whilst domestic work is conventionally regarded as beneficial for a girl's development, in reality many suffer from violence at the hands of their employers. Even if a child is not in slavery, they can be severely exploited. Child domestic workers are frequently not paid for their work. Alongside working long hours for little or no pay, many suffer physical and sometimes sexual abuse, are denied their right to go to school, are restricted from contact with their family and lack the opportunity to make friends. 3. Health problems and Social exploitation Domestic work is a sector which is particularly vulnerable to forms of slavery such as forced labor, trafficking, and bonded labor, due to the unique and specific circumstances of their work inside a private household combined with a lack of legal protection. For some domestic workers, the circumstances and conditions of their work amount to forced labor where employers have forbidden them from leaving the home; withheld or not paid wages; used violence or threats of violence; withheld their passports or identity document; limited their ability to have contact with family; or deceived them about their rights in order to compel them to work. Many domestic workers face verbal abuse such as insults and threats, alongside physical and even sexual abuse. Some domestic workers experience
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a lack of food and poor living conditions such as having to sleep on the floor in a utility room. Most of the domestic servants belong to the backward castes. These backward people hailed from Scheduled Caste colonies or slums in Corporation area. Majority of them face lack of basic amenities like drinking water, electricity etc. Many of the households don‘t have any home appliance. They are not aware of their rights and not united. They are living inside their small world of difficulties. So they bear the exploitation in working place. The non-reputed agencies have been exploiting the servants without making a regular payment to them. The concerned house matrons are not satisfactory in the role of these agencies. Most of the housewives use local contacts for getting their servants. The health condition of majority of the servants is more or less problematic. Many of them suffer skin diseases. The remaining suffers back pain, head- ache, diabetics etc. However, only a few of them undergo regular treatment. Though they usually go to Government Hospital, some of them prefer to get treatment from private practitioners as the latter requires less time. Hence their expenditure increases when health deteriorates. 4. Problems at Home: Adolescent girls suffer less from unpleasant behaviour of their respective fathers whereas most of women have drunkard husbands. Most of the women are the bread winners of their family and getting less economic support from their kith and kin. Most of the women after returning back to their home repeat the same work as there is no helping hand to reduce their burden of work. However, a very few respondents reported that their daughter-in-laws or mother help them doing household-work. They also face problems to collect drinking water. They usually stand in long queue for hours together to get two buckets of water. The servants are very pessimistic about their future. They feel that their work is demeaning - washing others‘ dirt. They respond that they are tied to this job
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because of certain circumstances like low level education, poor family background etc. Being stuck in the working place for a long time, they have adverse effects on their feeling of well-being. The servants, who have school going children do not have enough time to look after their children because of their work load in their own house and in work place. Many of the respondents express their inefficiency to look after their children in study because of their inadequate knowledge. A few of their husbands spent time to teach their off springs and the rests, in spite of having free evening hours watch television hours watch or spend time by playing cards and taking drinks. Regarding their own education, most of them are not able to read, write and comprehend things well. Their poor backgrounds hinder them from attaining further education and compel to accept any job. 5. Sexual harassment at workplace It is widely recognized that women find it very difficult to report sexual harassment at workplaces and are forced to remain silent. This could be because women are often blamed for the harassment. The power dynamics between employers and employees and fear of discrimination or dismissal also ensure they keep silent. Lack of awareness of laws, little confidence in complaint mechanisms or stigma due to breach in confidentiality can also be responsible for the silence. Though there is no legislation yet on sexual harassment in India, the Supreme Court Guidelines issued in the Vishakha versus State of Rajasthan case (1997) are followed. This landmark judgment gave this invisible crime a name and forced the state to acknowledge its prevalence in different types of workplaces. Subsequently, feminists, women‘s group and lawyers have been involved with the national Commission of Women to draft a bill on Sexual Harassment at Workplace Bill. However, the bill presented to the Parliament in 2010 does not include domestic workers. Officials argue that domestic workers were excluded due to the difficulties in
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proving sexual harassment in homes due to lack of witnesses in the home of accused. Along with domestic workers organizations, women‘s and lawyers groups have protested strongly against this exclusion. The migrating girls are vulnerable to be trafficked for domestic work by agents and abused physically, psychologically and sexually by employers and agents. Domestic servants are exploited behind closed doors in private households and fall outside the normal regulatory and inspection framework applicable to other places of work. It is also difficult for them to organize and join trade unions because of their place of work. 6. Legislation on Protection of Domestic Workers Domestic workers lack legal protection. In many countries, domestic workers are not considered ―workers‖ but rather as informal ―help‖ and are excluded from national labor legislation. Often they do not enjoy the same protections as other members of the workforce, such as minimum pay, social security, and maternity benefits. In countries where domestic workers are covered by national labor laws, enforcement is poor and these protections have not been translated into practice. Domestic workers In India are excluded from labor welfare laws. They look access to sufficient and effective statutory measures and institutional mechanisms for their protection. None of the Act meant for promotion of workers‘ rights included domestic workers in its Coverage. Early judgments do not consider them as ‗workmen ‗under the Trade Unions Act of 1926 those engaged in personal service, (WIEGO). Most other labor laws in the country hold the same position that they are not applicable because the household and the home are perceived as a non ‗industry‘ entity. As such domestic workers are currently not within the scope of most labor laws. They cannot demand rights for their decent working conditions, minimum wages, social security, hours of work, weekly offs paid leaves or medical benefits among others. Attempts to bring in a national legislation for domestic worker regulation have been made over the years but
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have yet to meet its success. Several states have also made efforts to enact their own labor legislation on domestic workers with some success in other states. However, the gaps between the existence of a law or welfare program, knowledge of it among potential beneficiaries, and the actual operation and coverage have to be noted. The employment of children in domestic work was not legally prohibited, but in 2006 the government of India imposed an amendment to the existing Child Labour Act (1986). The amendment prohibits the employment of children under fourteen as domestic servants or in roadside cafeterias, tea shops, hotels and other hospitality sectors. For Child Rights Organization, the enactment of the 2006 amendment was major achievement. Although they remain skeptical about the implementation of the ban, they expressed legitimate concerns over the lack of implementation of the amendment, given the Government marginal efforts in putting it into practice. Conclusion and Suggestions
In India, many women and children domestic workers are vulnerable or continue to suffer other kinds of abuses in violation of their human rights. It is still undervalued and looked upon as unskilled. Domestic work is not recognized as ‗work‘ by the Indian government. The state does not value or recognize this work as a contribution to society and the economy.
Also element of stigma of degradation is very much there in this occupation. This stigma is the main reason for lack of standardization. Domestic service in our country is individualistic and unorganized to a certain extent and gives no norms to the workers who take it up. Domestic workers, in particular women domestic workers, are a constantly growing section of workers in the informal sector of urban India. The last three decades have seen a sharp increase in their numbers, especially in contrast to male domestic workers.
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The process of mobilizing domestic workers is complex and long term. To begin with, this would involve empowering domestic workers. The low self- esteem can change only when they value their work. NGOs have an important role in creating economic organizations for them. In this context, it is necessary to make an awareness of the exploitation faced by the domestic servants and inspire them to organize themselves for protecting their rights and also to work for implementing enactment of laws by the government. Then only they can live with status and dignity equal to that of other members of the society. The onus thus lies on the state to protect domestic workers by law and enable them to join and form associations and unions. These rights must be publicized and supported by the state by ensuring that employers are aware of their workers‘ rights. While several states in India today have independent domestic workers‘ unions, there is much ground to be covered with regard to inclusive coverage and cohesive mobilization.
References: 1. Anderson, Bridget. 2000. Doing the Dirty Work? The Global Politics of Domestic Labour London, Newyouk: Zed Books. 2. Kaur, Ravinder, 2006, ‗ Migrating For Work: Rewriting Gender Relations‘ In Sadhna Arya & Anupama Roy (eds.) Poverty Gender and Migration: Women migration in Asia, Sage Publications, New Delhi. 3. UNICEF 2007 www.unicef.org/india/child_protection_2053.htm 4. Mehrotra, Surabhi Tandon (2008). Rights and Dignity: Women Domestic Workers in Jaipur. Research and fact finding by Mewa Bharati, New Delhi: Jagori. 5. Social Alert (2000). Invisible Servitude. An In-Depth Study on Domestic Workers of the World. Description and Recommendations for Global Action. Brussels: Research on Human Rights. 6. Issues faced by domestic workers: Organizing strategies used by SEWA-Self Employed Women‘s Association, A Paper Presentation on the Regional conference on Domestic Workers Asian Domestic Workers Network and Committee of Asian Women on 26-27th August 2008 Bangkok. (Issues faced by domestic workers: SEWA) 7. UNICEF 2007.www.unicef.org/india/child_protection_2053.htm 8. National Domestic Workers Movement http://www.ndwm.org/
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TRADITIONAL KNOWLEDGE DIGITAL LIBRARY (TKDL) AND LEGAL PROTECTION OF TRADITIONAL KNOWLEDGE (TK) IN INDIA: A REVIEW
1 DR. PRADIP KUMAR DAS*
Introduction & Definition of Traditional Knowledge-
During the last two decades Traditional Knowledge has become one of the most important issues before the entire world. The World Intellectual Property Organization (WIPO) secretariat has given a working concept of ―Traditional Knowledge (TK)‖. This is as below:
Traditional Knowledge refers to ―tradition- based literary, artistic, or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information and other tradition- based innovations and creations resulting from intellectual activity in the industrial scientific, literary or artistic fields‖2 . ―Tradition- based‖ refers to knowledge system, creations, innovations and cultural expressions which have generally been transmitted from generation to generation; are generally regarded as pertaining to a particular people or its territory; and are constantly evolving in response to a changing environment3. Among the various categories of traditional
*1ASSISTANT PROFESSOR & HEAD(I/C), SCHOOL OF LAW AND GOVERNANCE, CENTRAL UNIVERSITY OF BIHAR, GAYA CAMPUS, GAYA, BIHAR, Former Assistant Professor-II, School of Law, KIIT University, Bhubaneswar, Odisha, Former Principal, Haldia Law College, Haldia, W.B., & Former Trade Mark Examiner, Govt. of India.
2 . WIPO, ―Traditional knowledge- operational terms and definitions‖ Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, 3rd session, Geneva, June13-21, 2002, WIPO/GRTKF/IC/3/9, page-11(2002), http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_3/wipo_grtkf_ic_ic_3_9.pdf.(Accessed on 10-10-2013).
3 . Ibid.
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knowledge listed in its fact finding mission report4, WIPO includes agricultural, scientific, technical, medicinal knowledge including related medicines and biodiversity- related knowledge5. Traditional Knowledge is the valuable intellectual property of the Indigenous Communities. These are the valuable attributes of biological diversity and are one of the important sources of sustainable development in most of the developing countries including India. TK in its various forms fulfils the human needs of the local and indigenous people in different ways. It has great role to the forest conservation, soil conservation, seed conservation and crop biodiversity. Pharmaceutical Companies have been making use of the TK of tribal people to identify plants and their ingredients for developing new medicines. In the recent decades, there has been an increased demand for the traditional medicines all over the world. Over 80% of people from developing countries depend on traditional medicines (TM) for health needs. Even in developed countries the demand for TK is increasing day by day. TK is also considered as a valuable attribute of the indigenous and local communities that depend on it for their health, livelihood and general well-being. These are considered as a manifestation of culture of the indigenous people and local communities. During the last few decades, Traditional Knowledge (TK) has received increasing attention on the international agenda. Due to globalization of production systems, increase in population, new invention of sophisticated technologies, destruction of forests for agriculture, bio-diversity is declining at a rapid pace. Bio-diversity and associated traditional knowledge is also declining due to decreased motivation amongst the local communities to conserve and protect them. This has happened due to change in their lifestyle as well as misappropriation of their resources and knowledge.
4 . WIPO, ‗Intellectual Property Needs and Expectations of Traditional Knowledge Holders,‘ WIPO Report on Fact Finding Mission on IP and TK (1998-1999), Geneva, April, 2001, WIPO (2001 report), http://www.wipo.int/globalissues/tk/report/final/index.html(Accessed on12-10-2013).
5 . Ibid, at page 25.
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Misappropriation of TK poses a serious threat to the traditional community specifically and to the entire civilization in general. Misappropriation of biological resources and associated traditional knowledge not only violates the rights of communities who conserve them, but also adversely affects their conservation and sustainable use. The United States Patents and Trade Mark Office (USPTO) database shows that it has granted as many as 168 patents on yoga –related devices and accessories used in conducting exercises that include yoga mattresses, grip blocks and yoga socks, besides some devices used for doing stretching exercises6. Similarly, there are about 3,700 trademarks on yoga accessories which have been listed in the database register and pending trade marks by the USPTO7. Most of the traditional people depend upon these resources. They are creators, originators and the owners of this knowledge. But as a result of misappropriation of TK, they do not get benefit from TK. Their survival and livelihood has become now at stake. The developing country itself is also losing heavy financial loss. Biodiversity and ecological balance are also in danger because of indiscriminate use and misappropriation of TK for profit by some unlawful users. To prevent such a catastrophic situation, therefore, need has been felt to ensure that the traditional systems of conservation of biological resources and associated TK are preserved. It is necessary to recognize and respect the rights of holders of traditional knowledge. Misappropriation of TK and bio-piracy erode the rights of the traditional knowledge holders and adversely affect conservation and sustainable use of bio-diversity and associated TK. In International level various organizations are working to protect and preserve TK. Work on TK is taking place in various inter-governmental bodies like CBD, WIPO, FAO, WTO, UNESCO and UNCTAD etc. In WIPO, the WIPO Inter-Governmental Committee on Intellectual Property and Genetic Resources, Traditional
6 . ―Yoga devices and accessories patented in United States‖, The Hindu, Sunday, 19th August, 2007, Chennai Edition.
7 .Ibid.
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Knowledge and Folklore is working on issues relating to contractual practices, TK database and preparation of a document with elements for a possible sui generis system for the protection of TK.
However, it is in this national and international spectacle I have ventured to write this article of immense significance. The Author has tried to highlight the necessity and importance of protection of TK. I have also tried to explain the historical background behind TKDL and the present position of it. Author has also critically analysed the defects of the present system and in fine the author has given some suggestions in this regard.
Background of TKDL:
India is a home to a vast number of traditional medicines, therapies and yoga that have been handed down over generations. The protection of these traditional treasures has long been a matter of concern for Indian Scientists and IP specialists. The nature of traditional knowledge is such that more of it is transmitted orally than written down. This poses a particular problem when parties not authorized by the holder of that knowledge seek to obtain IPRs over it. In the absence of any accessible written record, a patent examiner in another country is unable to access documentation that would challenge the novelty or inventiveness of an applications based on traditional knowledge. The only option for an aggrieved party, be it the holders of the knowledge, or someone representing them, is to challenge the patent during the granting process or after grant, where national laws permit. Some of these knowledges have been described in ancient classical and other literature, often inaccessible to the common man. Documentation of this existing knowledge, available in public domain, on various, traditional systems of medicine has become imperative to safeguard the sovereignty of this traditional knowledge and to protect them from being misused in patenting on non-original discoveries, and this has been a matter of national concern. Protection and preservation of traditional knowledge have been a matter of concern to the developing
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countries in general and India in particular. India successfully contested the grant of patents for non-original inventions in its traditional knowledge systems i.e. turmeric for wound healing (US patent No. 5401540), Neem for anti-fungal properties (EPO patent No. 0436257), Basmati patent etc. But it is extremely difficult and costly for developing countries to monitor and challenge IPRs issued all over the world. Cancelation of these patents established that –
(a) it is not impossible to oppose and ultimately win grant of wrong patent at international level and
(b) it is extremely expensive and time consuming to contest the wrong patents at international level.
For example, cancellation of the patent for turmeric took about 2 years whereas that for Neem it took 5 years. On an average, it takes five to seven years for opposing a granted patent at the international level, which may even cost Rs. one to three crores. In 2000, CSIR found that almost 80 percent of the 4,896 references to individual plant based medicinal patents in the United States patent Office that year related to just seven medicinal plants of Indian Origin.8 Three years later there were almost 15,000 patents on such medicines spread over the United States, UK, and other registers of patent offices. In 2005 this number had grown to 35,000, 9 which clearly demonstrates the interest of developed world in the traditional knowledge of the developing countries. However, these granting of wrong patents at international level happens due to non-availability of information in a language known to International patent Examiner and also, the information not being in retrievable form. Therefore, it was felt necessary to adopt a practical and
8. Ramesh Menon, ―Traditional Knowledge receives a boost‖ , India Together, 13 January, 2007, http://www.indiatogether.org/2007/jan/eco-tkdl.htm(Accessed on 12-10-2013) 9. http://www.indiatogether.org/2007/jan/eco-tkdl.htm (Accessed on 12-10-2013).
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scientific approach to the problem of grant of wrong patents in our traditional knowledge Systems at international level.
History behind formation of TKDL-
In fact, the need of creation of Traditional knowledge (TK) data bases and need of support to developing countries was recognized by standing committee on Information Technology (SCIT) of World Intellectual Property organization (WIPO) in June, 1999. It directed to the Department of Indian Systems of Medicine and Homoeopathy (ISM&H) for initiating measures to protect Indian Traditional Knowledge in particular, Ayurveda10. An Approach paper was prepared in October, 1999, by Mr. V.K. Gupta, the then, Senior Technical Director, National Informatics Centre at the direction of the then Secretary, Department of ISM&H. This approach paper was also submitted to SCIT, WIPO in December, 1999. Then the Department of Indian Systems of Medicine & Homoeopathy (ISM&H) constituted an interdisciplinary task force consisting of Ayurveda experts from Central Council of Research in Ayurveda and Siddha ,Banaras Hindu University(BHU)Department of Indian System of Medicine and Homoeopathy, patent examiners from the office of the Controller General of Patent ,Design and Trade Marks, information technology experts from National Informatics Centre(NIC), and scientists from Council of Scientific and Industrial Research(CSIR)under the chairmanship of Mr.V.K.Gupta, Director, National Institute of Science Communication(NISCOM), New DELHI.
Present Status of TKDL in India TKDL is a collaborative project between NISCAIR and Department of Indian System of Medicine and Homoeopathy (D/o ISM & H), Ministry of Health and Family welfare which have been implemented at NISCAIR. The work of creation of TKDL began in October 2001. Initially the team of 12 Ayurbeda
10. http://www.worldbank.org/afr/ik/dlc/DLC%20files/Status_of_IK_in_India.pdf.(Accessed on 22/02/2013)
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Experts and 4 Scientists started the work on transcription of Sanskrit Slokas into Traditional knowledge Resource classification (TKRC). The complete team at present consists of 29 Ayurveda Experts, 5 Information Technology (IT) Specialists, 2 patent examiners, 4 NISCAIR Scientists and 3 technical Officers11. They have worked in a dedicated manner for one and a half year for creating TKDL in the present form. TKDL (Ayurveda) has been created on the codified traditional knowledge on Indian systems of medicine and in the first phase information present in 14 Ayurvedic texts listed in Indian Drugs and Cosmetic Act was taken, 36000 formulations have been transcripted in Patent Application format in five international languages viz. English, French, German, Spanish, and Japanese. The images from the original texts have also been incorporated into the database. TKDL is also being created for Unani System of Medicine for 77,000 formulations from 42 Unani texts which are in Arabic, Persian and Urdu. TKDL technologies are knowledge conversion technologies which permit conversion of TK and intangible cultural heritage available in local languages to international languages such as English, Japanese, and French etc. Present size of the data base is ten million pages( A- 4 size which is likely to grow to 30 million pages12. In the first phase a ‗Traditional Knowledge Resource Classification (TKRC)‘ is being prepared for 2,147 medicinal plants. The content of TKDL would initially consist of about 35,000 ‗slokas‘ (verses) from Ayurveda. The Department of AYUSH and NISCAIR started in August 2005 the project on TKDL Siddha. In January 2006, the WIPO included approximately 200 subgroups in the eighth edition of IPC. The Cabinet Committee on Economic Affairs, in June, 2006, put its stamp of approval on access to TKDL data base to IPO. In July 2006 the Access Agreement was sent to EPO and in December 2006 to USPTO13. In
11 http://www/worldbank.org/afr/ik/dlc/DLC%20files/Status_of_lk_in_india.pdf(Accessed on 12-03-2013). 12 http://www.stockholmchallenge.org/project/data/traditional-knowledge-digital-library.tkdl. (Accessed on 05/03/13). 13. Dr. J.P. Mishra; An Introduction to Intellectual Property Rights; Central Law Publications, Allahabad, Second edn. 2009. Page 356-357.
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January 2008 the CSIR, the department of AYUSH and MDNIY (Morarji Desai National Institute on Yoga, New Delhi) commenced the work for creating TKDL Yoga. In July 2008 the APIC (Access Policy Issue Committee) met to discuss the clarifications sought by EPO, and gave clearance to signing of Access Agreement. The CSIR entered into an Access Agreement with EPO on February 03, 2009. About 600 Yoga postures (i.e. asanas) had been digitized till February, 200914. India has entered into an agreement on February 03, 2009 with European Patent Office (EPO) whereby the patent applications filed from any of the 34 members of the European Union shall have to be examined, inter alia, in the light of the data available on TKDL. India is in the process of entering into similar agreements with Japanese patent Office, United States patent and Trademark Office, and other prominent patent regimes of the World to ensure that the TK and TCEs are not patented by outsiders and bio-pirators15.
Methodology used for TKDL16-
In making TKDL, slokas from ayurvedic texts are first identified .Each sloka is read and converted into structured language using Traditional Knowledge Resource Classification (TKRC).The TKRC classification has been evolved for about 5000 sub- groups as against one group in International Patent Classification (IPC) for Traditional Knowledge . The codes for each sloka are fed into a data entry screen and also saved on the database. Computer-savvy ayureda experts carry out the data entry. These are then decoded in different languages. The Ayurvedic formulation can be presently decoded in English, French, German, Hindi, Japanese and Spanish. In future, it would be available in 20 more foreign languages and all Indian languages. The decoded format of
14. Ibid (6). 15 . Dr. J. P. Mishra, An Introduction to Intellectual Property Rghts; Central Law Publications; Allahabad; Second edition 2009; P-357. 16. Nirupa Sen, TKDL-a safeguard for Indian Traditional Knowledge, www.infinityfoundation.com/ /mandala/z_es/t_es/t_es_TKDL_frameset.htm.(Accessed on 05.03.2013).
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the formulation is very easy to understand even by laymen. The web version of TKDL would include a web-based search interface. This would provide for a full text search and retrieval of traditional knowledge information on IPC and keywords in multiple languages. The TKDL software developed in-house does not, however, do translation but it does smart translation17. Once abstracted, data from the slokas are converted into several languages using Unicode meta data methodology. The software developed can perform smart translation of botanical names and ayurvedic descriptions from traditional terminology18.The project cost for TKDL is about 1.18crore.
Role of TKDL:
Traditional Knowledge Resource Classification (TKRC) is based on International Patent Classification System. TKDL is a multi-disciplinary project which was initiated as an answer to the bio-piracy of Indian TK System in particular TM at an international level. TKDL holds unique- methodologies and technologies and has been able to provide internationally recognized scientific structures to the TK Systems by developing a unique classification system now internationally known as ―Traditional Knowledge- Resource Classification (TKRC)‖. TKDL would play a crucial role not only in documenting our precious heritage in the area of traditional healthcare systems, but also in preventing bio-piracy and un-scrupulous patenting of indigenous herbal medicinal formulations. TKDL will also be useful for research workers. It will help in preventing extinction of rare species. It would help patent examiners for easy retrieval of traditional knowledge-related information, thus avoiding the possibility of granting patents to unoriginal inventions.
17 . Nirupam Sen,TKDL-a safeguard for Indian Traditional Knowledge, www.infinity foundation.com/mandala/z_es/t_es_TKDL_frameset.htm.(Accessed on 05.03.2013). 18 . Ibid.
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TKDL database shall act as a bridge between ancient Sanskrit /Unani verses and a Patent Examiner at a global level, since the database will provide information on modern as well as local names in a language and format understandable to patent Examiners. It is expected that the gap on lack of prior art knowledge shall be minimized. The database has sufficient details on definitions, principles, and concepts to minimize the possibility of minor/insignificant modifications. TKDL will give legitimacy to existing Traditional Knowledge. TKDL is a multi-disciplinary project which was initiated as an answer to the bio-piracy of Indian TK System in international levels. TKDL holds unique methodologies and technologies and has been able to provide Internationally recognized Scientific structures to the TK- Systems by developing a unique classification system now internationally known as ―Traditional Knowledge-Resource Classification‖ (TKRC).TKDL technologies are knowledge-conversion technology which permits conversion of TK and intangible culture heritage available in local language(s) to international languages such as English, Japanese, French etc. Technology permits one person to produce in one working day about 600 to700 pages of documented information in 5 international languages. TKDL is being targeted for Ayureda, Unani, Siddha, and Yoga System. Present size of the data base is 10 million pages (A4 Size) which is likely to ultimately grow to 30 million pages.
The TKDL project would save huge costs involved in fighting legal battles against patent. It enables research in Ayurveda, Siddha, Unani, Yoga, and Naturopathy and folklore medicine. The compilation of the Traditional Knowledge Digital Library reflects a nationalistic pride in India‘s ancient scientific heritage as well as its citizen‘s continuing faith in herbal and other natural treatments that often are viewed with scepticism in the west. Data collection effort will promote the commercialization of traditional Indian remedies, help validate their scientific underpinnings and encourage collaboration between Indian and foreign pharmaceutical companies. The
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project will encourage the development of a uniquely Indian health – care industry that blends 21st – century technology with spirituality19.
TKDL database breaks the language and format barriers. Hence, TKDL database is a valuable tool for carrying out advanced research for identifying novel drugs through the route of reverse pharmacology. This is possible by the integration of traditional knowledge with Modern Medicine and Modern Science. In fact, CSIR of India has new drugs developed using the concept of Golden Triangle. Based on Indian Traditional knowledge, TKDL is likely to serve as a valuable tool for carrying out advanced research. TKDL is a mechanism which validate Indian system of medicine e.g. Ayurveda, Unani, Siddha etc. against each other. There is a scope for active research programmes based on TKDL database. The information collected in TKDL can become the basis for development of new pharmaceutical products, which can bring major health care benefits to wide populations in India and abroad. The TKDL database is intended to act as a bridge between ancient Sanskrit slokas and a patent examiner at a global level, since the database will provide information on modern as well as local names in a language and format understandable to patent examiners20. It is expected that the gap on lack of prior art knowledge shall be minimized. By recording the traditional knowledge, legally, it becomes public domain knowledge. Under the patent law, this means that it is considered as prior art and hence it is not patentable. Patent examiners could easily check this database and reject any patent application that might be a mere copy of traditional knowledge. So, it will be a useful tool to prevent bio-piracy. India would get international recognition for
19. Dr. E Rama Reddy, Traditional knowledge, Biodiversity and local wisdom: The Indian Experience, P7-8, http://www/leralinfonet.net/toyota/file/Prof.ReddyTK-final_paper.pdf. (Accessed on 05/03/13) . 20. The Role of Registers and Databases in the Protection of Traditional Knowledge-A Comparative Analysis; UNU-IAS Report; P-18,UNITED NATIONS UNIVERSITY.
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its centuries-old traditional knowledge. However, following are some of the reasons behind documentation of traditional knowledge21: a) To preserve TK or IK and protect against its loss; b) To ensure IPR protection of IK; c) To enhance recognition of IK; d) To share IK with outsiders; e) To benefit humanity with such knowledge; f) To prevent the granting of IPR over their knowledge to outsiders. g) To support research projects with public interest objectives; h) To preserve their culture; i) To prevent misappropriation of IK and j) To assert land rights etc.
Limitations and Criticism against traditional knowledge database-
Traditional Knowledge Database or TKDL is criticized by many in various ways; some considers it, as another tool for bio piracy. How far the database will be successful in preventing bio piracy - it is really a controversial question. In a World where profit and greed have become the new economic mantras, private companies will go to any extent to manipulate what is already known and what is within the data base. Any tinkering with the original medicinal remedy with a little cosmetic covering can be easily presented as a new and novel product. So, by a little change in the composition of the product (Which is within the database), multinational companies may end up in smoke the real object of TKDL. It is not possible to know all medicinal properties of all medicinal plants in a vast country like India. Even in a country where patents and theft of intellectual property rights have become an emotive issue, it has been difficult to fight the piracy of traditionally- known products like
21. Yovana Reyes Tagle; The protection of Indigenous knowledge Related to Biodiversity: the Role of Databases; www.Sylff.org/Wordpress/wp-Content/uploads/2009/03/sylff_p131- 146.pdf. (Accessed on 04/06/2013).
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basmati rice. The ministry of commerce has, in fact, issued a circular saying that it has no money to take the basmati battle any further. If the Government has no money and no political will to challenge and fight the patent on basmati rice, which is a culturally and politically sensitive issue, then it is meaningless to expect any fruitful challenges to other cases of bio piracy. The ultimate aim, however, is to record the traditional knowledge. But it is virtually impossible to record everything. Any database is not at all completely is itself. The terminology used in traditional knowledge is another problem. Apart from the difficulties inherent in translation, traditional words used are often general in nature and cannot be equated always with the present medical terminology - one word or phrase may cover several types of a particular disease. Indian old text, for example, uses various general words for a liver complaint. But the Western World today uses the terminology, ‗Hepatitis A‘, ‗Hepatitis B‘, ‗Hepatitis C‘, etc. So, while a particular plant may be genuinely effective and prescribed over centuries in India for liver problems, the Western World may refuse to accept this as prior use and may say that since words, like say ‗‗Hepatitis B‘ were not used in the traditional knowledge system, such a use is novel today22. Another limitation of database is that it only provides protection for information within the database and would not as such amount to the granting of a right over the knowledge to the benefit of local communities or indigenous peoples. Furthermore, ownership of the database may be held by a person other than the relevant indigenous knowledge holders23. However, from various quarters the documentation effort is criticized. It is the absence of any global safeguards; the digital library will become a source of information for private companies. In a world where profit and greed have become the new economic mantras, private companies may run after for
22. Sangeeta Udganonkar, The recording of traditional knowledge: will it prevent ‗bio- privacy‘? http://www.iisc.ernet.in/currsci/feb252002/413.pdf. (Accessed on 10/08/2013). 23. The Role of Registers and Databases in the protection of Traditional Knowledge - A comparative Analysis UNU - IAS Report, UNITED NATIONS UNIVERSITY, January 2004, page 18.
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manipulation and misappropriation of available knowledge of this database24. Dishonest private companies and other multinational companies may misuse and consider this database as bank of information and knowledge.
Concluding Remarks and suggestions-
So, from the above discussion, it can be said that in spite of some limitations of TKDL, it plays an important role to protect TK in India. It has become a beacon light to protect the intellectual properties of millions of people in India. However, we should take some measures to properly safeguard the TKDL. Because, if we fail to safeguard, it will facilitate misappropriation of knowledge. Previously Indian Knowledge laboratories were not exposed to the outside world and the outside World was also not in a position to exploit this knowledge at random because of the language barriers. But, at present these knowledge are easily available in international languages which will help in easy exploitation. Previously, Because of lack of technological development India failed to utilize these resources. Now, India is rapidly heading towards technological development. At this point of time, it will be blunder to expose Indian Knowledge library before the outside world without due protection. Recording of traditional knowledge in the manner in which it is being done at present without imposition of restriction - would only result in making a free gift of India‘s traditional knowledge to the rest of the world25. Restriction may be imposed upon access through a contractual agreement. This contractual agreement will also pave the way of benefit sharing agreements. Steps must be taken to prevent free access of the digital library. Proper mechanism must be implemented and incorporated to prevent misuse of this digital library. The access conditions and terms of compensation must be incorporated along with the very structure of the database itself. Any person who wishes to access the database must be required to first agree to certain conditions - one of
24. Devinder Sharma, Digital library: Another tool for bio piracy; http://infochangeindia.org/20010606292/Technology/Features/Digital-library-Another-tool- for-biopiracy.html(Accessed on 29/6/13) .
25 . Sangeeta Udgaonkar, the recording of traditional knowledge: will it prevent ‗bio-piracy‘ ?current science, vol.82,No. - 4, 25 February, 2002, P-413-419: http://www/iisc.ernet.in/currsci/feb 252002/413.pdf. (Accessed on 10/02/2012).
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them may be being eventual compensation to the source of the knowledge26. So, taking into consideration of all these aspect we must have to proceed.
26. Sangeeta Udagaonkar, The recording of traditional knowledge: will it prevent ‗bio- piracy?‘ Current Science, VOl. 82 No. 4, 25 February, 2002, pose - 412 - 419. http://www.iisc.ernet.in/currsci/feb252002/413.pdf. (Accessed on 10/02/2012)
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KASHMIR IS AN INTEGRAL PART OF INDIA Dr. Pradeepta Kishore Sahoo*
INTRODUCTION The Kashmir dispute had been taken by the security council on the 1st January 1948, a U.N. commission for India and Pakistan(UNCIP) was set-up. This commission arrived in the Indian sub-continent on July, 1948. After having a serious of discussions with both the governments of Pakistan and India. The U.N. commission for India and Pakistan finally prepared two resolutions which were accepted both by India and Pakistan and according to which the cease-fire agreement was signed on the 29th July 1949, at Karachi between India and Pakistan. Though actually the cease-fire was ordered from the 1st Jan,1949. The first resolution of the UNCIP was passed on the 13th August, 1948 and the second resolution were passed on 5th January, 1949. The second resolution was simply an elaboration of the supplement to the first resolution of the 13th August, 1948. As such there was hardly any difference of contents between the two resolutions. These two resolutions are official records of the Security Council.
The resolution of the 13thAugust, 1948 consists of three parts. Part-I stipulates for a cease-fire, non-augmentation of military potential on either side, or the maintenance of a peaceful atmosphere. Part-II contained that Pakistan had to withdraw all her forces, regular and irregular. India was to retain sufficient troops for the security of the state and for, the maintenance of law and order. Whereas Part-III read as follows: --
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*M.A., LL.M., PH.D., PRINCIPAL, GOLAGHAT LAWCOLLEGE, LAW COLLEGE ROAD, BENGENAKHOWA, DIST.-GOLAGHAT, ASSAM PIN CODE-785621
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―The government of India and the government of Pakistan re-affirm their wish that the future status of Jammu and Kashmir shall be determined in accordance with the will of the people and to that end, upon acceptance of the Truce Agreement both governments agree to enter into consultation with the commission to determine fair and equitable conditions whereby such free expression of will be assured.‖
As has been pointed out earlier that Part-III of the resolution can have any meaning and can be operative and implemented only when all the conditions enumerated in Part-I and Part-II of the resolution are carried out, observed and implemented by both India and Pakistan. Thus Part-III is absolutely conditional upon the observance, fulfillment and implementation of the parts-I & II of the resolution. It must be said once again that not a single condition under Part-I & II has been carried out, implemented or fulfilled by Pakistan during these 18 years. Thus Part-III must remain void of any meaning whatsoever.
Again nowhere the word ―plebiscite‖ has been used for once even in Part-III of the resolution. The significant sentences that have been used are ―in accordance with the will of the people and ―such free expression of will be assured.‖
THE BASIC RESOLUTION
(i) Responsibility for the security of the state of Jammu and Kashmir rests with the government of India‖. By this it is implied that the Security Council admits the accession of the state to the union of India in valid, justified and legal. Otherwise on what ground could it accept and declare that the security of the state is India‘s responsibility? It is not the responsibility co-related two and a dependent upon India‘s right? Are not the right and responsibilities
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otherwise known an obligation of the state interconnected in International law? (ii) ―The sovereignty of Jammu and Kashmir government over the entire territory of the state shall not be brought into question.‖ Is this sovereignty of the state of Jammu and Kashmir same and equal to the sovereignty of a full-fledged state in international law? If that were so how could the Security Council declare that the responsibility of the state‘s security rests with India? Does it thereby not mean that the sovereignty of the state of Jammu and Kashmir is less and subordinate to that of India‘s? Is not the sovereignty of the state of Kashmir comparable to the sovereignty of a federating state of the union of India and as such does it not prove that the state of Kashmir is just a unit of the Indian federal republic? (iii) There shall be no recognition of the so-called Azad (Free) Kashmir government‖ could not the Security Council find out as to how this government came into being and could it not bring an end to it? By doing nothing of the kind does it not prove that the Security Council had permitted Pakistan to illegally occupy a portion of the state‘s territory by force? (iv) ―The territory occupied by Pakistan shall not be consolidated to the disadvantage of the state of Jammu and Kashmir‖. What did not council do to prevent Pakistan from consolidating the occupied territory that formed the strong-hold of attack against the rest of the state? (v) ―The administration of the evacuated areas in the north shall revert to the government of Jammu and Kashmir and its defence to the government of India who will, if necessary, maintain garrisons for preventing the incursion of tribesmen and for guarding the main trade routes.‖ By so declaring that the civil administration be looked after by the state government and defence by the Indian government, does it thereby not
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became clear that the relationship between the state of Jammu and Kashmir and the union of India is a relationship of the central and a federating unit? Can there be any doubt that the state is one of the several constituent units of the Indian federation? Why did the Security Council exclude Pakistan Army while referring about the tribal incursions only? (vi) ―Pakistan shall be excluded from all affairs of Jammu and Kashmir in particular in the plebiscite, if one should be held.‖ The council did not decide that a plebiscite ―must‖ be held. Rather the decision was ―if one should be held‖ Necessarily it is up to India to decide finally whether to have a plebiscite or not. (vii) ―If a plebiscite if found to be impossible for technical or practical reasons, the commission will consider other methods or determining fair and equitable conditions for ensuring a free expression of the people‘s will.‖ This point merits a closer scrutiny. In the first place, the council admits and declares that holding of a plebiscite in the state of Jammu and Kashmir may not be possible for some reason or other. Secondly, plebiscite is not the only and exclusive method for ―ensuring a free expression of the people‘s will‖ because the council had directed the UNCIP to consider other methods. Thus necessarily it is proved that apart from plebiscite several other methods may also be equally applicable and valid for determination of the expression of the people‘s will. Thirdly, why the other methods are have not been enumerated as well as the procedure for determining them. Fourthly, it appears that Lord Mountbatten‘s in accordance with the wishes of the people does not differ from the council‘s ―a free expression of the people‘s will‖ so far as accession of the state of Jammu and Kashmir to the Indian Union is in question. Thus the two expressions mean the same thing that is ascertaining the will of the people either by ‗plebiscite‘ or by any other method through which it can be known.
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During these 18 years three general elections on the principle of universal adult suffrage had been held in the state and in 1954 the state constituent assembly elected by the people on the same principle had ratified formally the accession of the state into the union as final and binding. Thus so far as determining the wishes of the people is in question, it has been ascertained more than once though methods which are no less valid and equal than method of ―plebiscite‖.
(viii) ―Plebiscite‖ proposals shall not be binding upon India if Pakistan does not implement parts-I & II of the resolution of the 13th August, 1948.
Now the legality of the state‘s accession to India has never been questioned either by the Security Council or by the UNCIP. Whereas Pakistan had challenged and questioned the legal validity of this accession. And that is what is at the root of the dispute. That the legal validity of the state‘s accession has been accepted and confirmed by both the Security Council and the UNCIP can be proved by these two evidences.
(i) On February 4th 1948, the U.S. representative in the Security Council declared: ―The external sovereignty of Kashmir is no longer under the control of the Maharaja----with the accession of Jammu and Kashmir, this foreign sovereignty went over to India is exercised by India and that is how India happens to be here as a petitioner.‖
It appears that ―external sovereignty‖ means matters of defence and security etc. whereas ―foreign sovereignty‖ means the capacity of the state to enter into treaties or agreements to be a party to an International dispute, and the capacity to be a member of an international organization according to the strict principles of International law which describes those above three qualification as the all important determinants for a full fledged sovereign state. Thus by declaring that those two types of ―sovereignty‖ are with India it
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is proved that if at all any other ―sovereignty‖ is left or retained by the state then it is a ―sovereignty‖ that can be called as the ―internal‖ and no foreign sovereignty which is otherwise known as the ―autonomy.‖ In political science ‗sovereignty‘ means ‗supremacy‘ whereas ‗autonomy‘ is not the sovereignty. Hence if the state of Jammu and Kashmir has ‗autonomy‘ then it must be said that the relationship between the stat e and India is a relationship of a federal union. Because ―autonomy‖ is one of the characteristics of a federation. Thus it is once more proved that the state of Jammu and Kashmir is an integral part of the territory of the Indian union and a constituent unit of the federation of India. Thus by committing aggression against Kashmir, Pakistan had challenged the external sovereignty of India. And hence aggression against Kashmir is tantamount to aggression against India as a whole.
Again the legal Adviser to the UNCIP concluded that accession of the state to the Indian union was legal and could not be questioned. Confirming this UNCIP in its report to the council and in the two resolutions of the 13th August, 1948 and 5th January, 1949 declared that Pakistan had no ‗locus stand‘ in the state save as an aggressor. Thus when the Security Council gave its verdict about the legal validity of the state‘s accession to the Indian union in the affirmative, it was thereby settled and decided that the dispute over Kashmir between India and Pakistan had ended once and for all. Because as has been pointed out earlier the root and the whole issue of the dispute was centered on proving the legal validity of this accession wither in the affirmative or in the negative.
Now turning once again to the letter of Lord Mountbatten which was written to the Maharaja after the day of accession (26th October, 1948). ―That in the case of any state where the issue of accession has been the subjected of dispute the question of accession should be decided in accordance with the wishes of the people of the state.
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This sentence is to be studied minutely and thoroughly on analyzing the meaning of this sentence the significant points that emerge are -
Two methods are prescribed for the accession of a state.
(i)Accession by signing the Instrument of Accession by the ruler of the state. Or
(ii)Accession according to the wishes of the people, which can be determined or ascertained either by plebiscite or by any other method.
It must be specially taken note of the word ‗And‘ can not be used here. For that would mean both the methods of accession pointed above are to be applied.
Of these two methods accession by the ruler‘s signing the Instrument of Accession is to be applied first and only if and only when accession by this method is disputed which means its being proved as illegal and invalid that the second alternative method is to be applied for determining the accession of the state.
Thus the second method of accession can never be applied first. It is absolutely conditional upon proving the legal validity of the first method either in the affirmative or in the negative. If the first method is proved in the affirmative then the second and also the alternative one is totally superfluous and hence unnecessary.
Now that the Security Council had declared the legal validity of the first method in the affirmative, holding of a plebiscite or any other method in accordance with the wishes of the people with regard to the question of the accession of the state of Jammu and Kashmir to the union of India completely ruled out once and forever. Also the question of no other method can be raised considered or entertained. Because when the first method had been declared as
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legally valid every other method there by becomes both superfluous and unnecessary.
That the state of Jammu and Kashmir is one of the several constituent units of the federation of India can be proved by all these following facts and developments which took place after the state‘s accession on the 26th October, 1947. These changes and developments took place during these 18 years gradually and at various stages.
The position of the state in the union was settled in the ―Delhi Agreement‖ announced on the 24th July, 1952. According to this agreement complete internal autonomy is granted to the state. Fundamental rights of the Indian constitution are enforceable and applicable within the state. The jurisdiction of the Supreme Court extends to the state in matters of inter-stat e disputes. Fundamental rights and all matters relating to the defence, foreign affairs and communications. The National Flag is supreme over the state flag. The emergency powers of the president of India are applicable in Kashmir. Such powers can be enforced either on request being made by the state authority or with the concurrence of the state authority. The customs barrier that existed between the state and the union was removed on the 13th April, 1954. As a result of which Kashmir has become economically an integral part of India. On the 14th May, 1954 by the presidential order the recommendations of the state constituent assembly was incorporated in the Indian constitution. Even though the state has a constitution of its own it can be compared to the ―STATE LIST‖ of the constitution of India, according to which administration of all the federating and constituent units are run. In fact the state constitution of Kashmir is identical and analogous to the ―STATE LIST‖ of the constitution of India. The state‘s official language is Urdu which s one of the recognized languages declared in the Indian constitution. The Directive principles of the state policy of the Kashmir state have been framed according to the model of the Indian constitution. The state‘s declared policy is to
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establish a secular, democratic, socialistic society. The state entered into financial arrangements with the union government in 1957as a result of which it has been brought on a par with every other constituent units of the federation receiving proportionate allocation of funds and central subsidies, loans and other such financial assistance. A similar cadre of IAS and IPS officers has been created in the state service of Kashmir. Such officers are trained by the union ministry of Home Affairs. There takes place exchange of such officers both ways between the state and the union in the form of deputation etc. The state is a member of the Northern zone council taking part in all types of affairs concerning or relating to the states within this zone. The state accounts and audit department is under the jurisdiction of the Auditor and Comptroller- General of India. Who appoints a nominee on his behalf to run this department of the state? Necessarily the accounts of the state‘s revenue and expenditure is subjected to audit and scrutiny by the Auditor and Controller –General of India which can be done either personally by him or by his staff or by a nominee duly appointed and authorized by him. In 1959 the Kashmir state Assembly unanimously amended the state constitution with a view to extending the jurisdiction of Election Commission in all matters relating to election within the state.
These recommendations of the state legislature have been incorporated by a presidential order of the 26th January, 1960 in the Indian constitution. Free movement of and entry into the state by the Indian nationals have been ensured since the 1st April,1959 by bringing and end to the old permit system that was established long back when Kashmir was a princely state. Indians as well as others can also purchase land and other immovable property within the state for the purposes of industries etc. and finally in one of the latest amendments to the constitution of India such titles as the ―Rajpramukh‖ Sadar-i-Riyasat, prime minister of a state have been abolished and instead been replaced by the ―Governor‖ and the ‗Chief Minister‘.
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PAKISTAN‟S CLAIM TOWARDS KASHMIR:.
Pakistan claims Kashmir because of a Muslim Majority. Well, if Kashmir has a Muslim Majority, then Jammu has a Hindu Majority and Ladakh has Buddhist preponderance. Is not then the demand counter-balanced when Jammu and Ladakh are combined with Kashmir? Again Kashmir cannot be excluded or separated from either Jammu or Ladakh. Because the princely state of Kashmir comprised of both Jammu as well as Ladakh. At the time of accession the Maharaja had signed as the ruler of a state whose territory comprised of all these three taken together as one unit or whole. Hence Kashmir minus Jammu and Ladakh is not the state. So Pakistan‘s demand because of this Muslim majority in Kashmir must be rejected as untenable.
With regard to the people of Kashmir when the constitution of India grants, guarantees and protects all the fundamental rights and treats the people of Kashmir on absolute parity with the rest of the Indians what more is left there for them to determine for which Pakistan has been wasting her crocodile‘s tears all these 18 years and till now.
SCOPE OF ARTICLE-370 IN THE CONSTITUTION:
This article was included in the constitution as a special provision in view to the problems arising in respect of the state of Jammu and Kashmir and also the fact that government of India had given their assurance to the people of the state that their political future would be finally determined by themselves.
The policy of the constitution which appears from this article is that the constitution was framed for the entire union of India but the provisions of the constitution should not apply to the territories of the state of Jammu and Kashmir until and unless the president made an order that they shall apply.
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The effect of the article was to give jurisdiction to the union parliament to make laws for the state on matters specified either in the instrument of accession or by later additions made with the concurrence of the state government. It is no way altered the basis of relationship between the state and the union government and left the state to be governed by its own laws and constitution in the residuary field.
This article was inserted as a temporary provision until the constituent assembly of the state met and decided the political future of the state. The president was empowered by the article itself to decide at the appropriate moment whether the article should be abrogated or be retained subject to exceptions and modification. Now the constituent Assembly of the state has decided that Jammu and Kashmir is and shall be an integral part of the ―Union of India‖. How it would come into reality.
CONCLUSION
Thus having made a through survey of the political and legal aspect of the Indo-Pakistani dispute over Kashmir the conclusion is that International Law is always a very serious handicap for the weaker powers. Whereas the mighty powers always twist and turn it as they will for their own selfish interests. They impose their actions and decisions upon the weaker powers and try to pass them off as International Law by their force. International law is always subjected to and dominated by the power-politics. It is because of all these that it is said and believed that the so called International Law is not truly a law. If at all it is a law then it must be admitted that it is merely a law by courtesy. Observance of which primarily and most heavily rests upon the conduct of the mighty powers of the world. The future, importance, validity, affectivity, sanctity and the binding force of International law as a means and as an instrument for settling and adjusting the various interests and issues of and between the sovereign states in a world community of nations all depends upon the big powers.
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It can be proved that what is politically feasible is not necessarily legal or just. A political settlement is therefore not a just and valid legal settlement. Particularly when such a settlement is based on a method, device or principle that is unrecognized and unaccepted as a legal prescription in the treatise of the law of nations relating to the territorial divisions between the sovereign states. Thus India can emphatically reject Pakistan‘s demand for a plebiscite in Kashmir on the ground that the principle as such is un – recognized, unaccepted and unfounded in the law of nations and as such is devoid of any legal validity what so ever.
Thus the present so called ―Azad Kashmir‖ which has come to stay as the de -facto boundary in Kashmir between India and Pakistan all these years is without any legal validity behind it. It is the result of Pakistan‘s outright aggression against the former princely state of Jammu and Kashmir which subsequently became apart of the territory of the Indian union through the Instrument of Accession. Thus the so called ―Azad Kashmir‖ has no legal recognition behind it. Legally India‘s sovereignty and right extends to this part of the state as well even though it is now under Pakistan‘s illegal occupation.
REFERENCES
White paper on Indian States part –XI M. Subhan Vs State , AIR 1956 J & K 1 Magher Singh Vs Principal Secretary J & K Govt. AIR 1953 J & K -25 Ph. Lakhantal Vs State of J & K AIR 1956-SC -197
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LEGAL CONTROL OF DRUGS AND PUBLIC HEALTH Dr.Sudhansu Ranjan Mohapatra*
1. INTRODUCTION Drugs have been used for medical purposes since time immemorial. Affordable drugs are an essential and integral component of universal health care and accessible health care for a safe and healthy life. Drugs need to be easily available and good quality and should not be spurious nor of bad quality. Public hospitals should take the responsibility of providing free or subsidized drugs to the patients. States also should not shy away from their responsibility of providing free health care and invest more on health care. On the other hand, Government now days increasing numerous user charges depriving the public the chance to proper healthcare. It is also seen that these days drugs and narcotics are being used freely by the people all over the world. The abuse of narcotics has caused wide spread concern to all the nations of the world. Abuse of drug is a very complex issue. Today every country in the world is no longer secure from the menace of drug abuse. Even in the most powerful country like America is in its grip, the position of India is not far behind.
Public health practice comprises organized efforts to improve the health of communities. Public health prevention strategies are targeted to populations rather than to individuals. Throughout history, public health effort has been directed to the control of transmissible diseases, reduction of environmental hazards, and provision of safe drinking water. Because social, environmental, and biologic factors interact to determine health, public health practice must utilize a broad set ______*Associate Professor, Centre for Juridical Studies, Dibrugarh University, Dibrugarh, Assam.
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of skills and interventions. During the 20th century, the historic emphasis on protecting communities from infectious disease and environmental threats expanded to counter risks from behaviors and lifestyles that led to chronic disease. Population-based prevention resulted in major gains in life expectancy during the 1900s. In the beginning of this century, public health expanded even further as numerous events necessitated a shift in public health priorities. In this paper, an attempt has been made to analyses as to what extent the Indian laws address to the provisions of getting cheap and accessible medicines, the legal controls that are in place to put against spurious, substandard and misbranded drugs and the kind of legal control exercise over false and misleading advertisements relating to effect of drugs and cure of diseases. Since access to cheap drugs is an essential part of right health and healthcare, the laws and orders governing these areas are as follows: 1. Drugs and Cosmetics Act, 1940, 2.Drugs and Magic Remedies(Objectionable Advertisements)Act, 1954, 3. Patent Act, 1970 and 4. Drug Price (Control) Order, 1995. Several UN Conventions were organized to control the possession, consumption and manufacture of the illegal drugs in response to the health and social concerns associated with illegal drug use and as a result of which during the last several decades, most national drug control strategies have given emphasis on drug law enforcement interventions to reduce drug supply, despite recent calls by experts to explore alternative models of drug control, such as systems of drug decriminalization and legal regulation.DRUG: MEANING AND DEFINITION: Sometimes we come across with a problem of distinguishing a drug from other substances such as whether vitamin tablets or liquids are drug or diet supplements? Can we say cotton gauze a drug? Are condoms drugs? So drug is defined as a substance which may have medical, intoxicating, performance enhancing or other effects when taken or put into a human body or the body of another animal and is not considered a food or
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exclusively a food.1What is considered a drug rather than a food varies between cultures, and distinctions between drugs and foods and between kinds of drug are enshrined in laws which vary between jurisdictions and aim to restrict or prevent drug use. Even within a jurisdiction, however, the status of a substance may be uncertain or contested with respect to both whether it is a drug and how it should be classified if at all. There is no single, precise definition, as there are different meanings in drug control law, government regulations, medicine, and colloquial usage.2 Therefore, now a days a number of litigations has crop up to know as to what constitutes drugs.
DEFINITION OF PUBLIC HEALTH Public health consists of organized efforts to improve the health of communities. The operative components of this definition are that public health efforts are organized and directed to communities rather than to individuals.3 In some ways, public health is a modern concept of human development in science, although it has roots in antiquity. From the beginnings of human civilization, it was recognized that polluted water and lack of proper waste disposal spread communicable diseases (theory of miasma). Early religions attempted to regulate behavior that specifically related to health, from types of food eaten, to regulating certain indulgent behaviors, such as drinking alcohol or sexual relations. By Roman times, it was well understood that proper diversion of human waste was a necessary tenet of public health in urban areas. The Institute of Medicine (IOM) published its classic report, The Future of Public Health, similarly defining public health as an ―organized community effort to address the public interest in health by applying scientific and technical knowledge to prevent disease and promote health.‖ the mission of
1 Drugs available http://en.wikipedia.org/wiki/Drug (accessed on 22-10-2013.) 2 Ibid. 3 Defining Public Health available at http://www.medcol.mw/mentalhealthmalawi/wp- content/uploads/2013/01/def.pdf (accessed on 22-10-2013)
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public health, then, is to ensure conditions that promote the health of the community.4 Public Health 2.0 Public Health 2.0 is the term given to a movement within public health that aims to make the field more accessible to the general public and more user-driven. There are three senses in which the term "Public Health 2.0" is used. In the first sense, "Public Health 2.0" is similar to the term "Health 2.0" and is used to describe the ways in which traditional public health practitioners and institutions are reaching out (or could reach out) to the public through social media and health blogs. In the second sense, "Public Health 2.0" is used to describe public health research that uses data gathered from social networking sites, search engine queries, cell phones, or other technologies. In the third sense, "Public Health 2.0" is used to describe public health activities that are completely user-driven. An example of this type of Public Health 2.0 is the collection and sharing of information about environmental radiation levels following the March 2011 tsunami in Japan. In all cases, Public Health 2.0 draws on ideas from, such as crowdsourcing, information sharing, and user-centered design.5 Population-based strategies for improving community health include efforts to control epidemics, ensure safe water and food, reduce vaccine- preventable diseases, improve maternal and child health, and conduct surveillance of health problems. In addition to long-standing efforts to protect communities from contagious and environmental health threats, the public health arena is expanding to counter new and contemporary risks: obesity, adolescent pregnancy, injury, violence, substance abuse, sexually transmitted diseases (STD), human immunodeficiency virus (HIV) infection, natural disasters, and bioterrorism. To be successful, however, any approach to
4 Ibid. 5 Historical Background of Public Health available at http://en.wikipedia.org/w/index.php?title=Public_health&oldid=573130401 (accessed on 22- 10-2013)
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improve a community‘s health must involve both population-based and clinical preventive activities.6 In the beginning of the current century Drug Industry was practically non-existent in India and pharmaceuticals were being imported from abroad. The First World War changed the situation and not only were finished and cheap drugs imported in increasing volume, the demand for an indigenous product also was voiced from all sides. With the clamour for swadeshi goods manufacturing concerns, both Indian and Foreign, sprang up to produce pharmaceuticals at cheaper rates to compete with imported products. Naturally some of these were of inferior quality and harmful for public health. The Government was, therefore, called upon to take notice of the situation and consider the matter of introducing legislation to control the manufacture, distribution and sale of drugs and medicines.7 In U.S. some important legislations relating to Drugs are Harrison Act of 1914, Regulate, Control & Tax Cannabis Act, Drug-Free Schools and Communities Act Amendments of 1989. In UK the Misuse of Drugs Act 1971, - Drugs Act 2005, The Medicines Act 1968, Customs and Excise Management Act 1979, Road Traffic Act 1972, Drug Tariffing Act 1972, Crime and Disorder Act 1998. The main objective of enacting the Drugs and Cosmetics Act, 1940 was to ensure quality of drugs and prevent substandard drugs flooding the Indian markets. The Drug Act was enacted in 1940 in pursuance of the recommendations of the Chopra Committee.8 The Act of 1940 has been amended several times and is now titled as the Drugs and Cosmetics Act, 1940. The Drugs and Cosmetics Act regulates the quality of drugs, its manufacture, distribution and sale. The law also deals with cosmetics but in this paper it has not been discussed. The very definition of ‗Drug‘ under the Drugs and Cosmetics Act covers a wide variety of therapeutic substances, diagnostics and medical devices. Drugs, being coming under the category of
6 Ibid. 7 Historical perspective available at http://cdsco.nic.in/html/law.htm (accessed on 22-10-2013) 8 Chopra Committee was constituted in 1930 by the Government of India.
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concurrent list, the responsibility of enforcing various provisions of the Act vests with the Central Government and the State/UTs. The Pharmacy Act was passed in 1948 and was amended in 1959, 1976 and 1984.The aim of this law is to regulate the profession of Pharmacy in India. The Act requires that only a registered pharmacist may prepare and compound drugs. Under the provisions of this act the Central Government constitutes a Central Pharmacy Council of India. The system of regulation of advertisement of drugs in India 9is provided in the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 ("Act"). Section 3 (d) of the Act provides that "no person shall take part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule, or any other disease, disorder or condition (by whatsoever name called) which maybe specified in the rules made under this Act." It can be viewed from the above provision that publication of advertisement of drugs are subject to scrutiny as per section 3(d) of the Act in India. Therefore, publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule or Rules of the Act are prohibited in India. The Hon'ble Supreme Court of India observed in the Hamdard Dawakhana (Wakf) Lal Kuan, Delhi & Another V. Union of India & Others10 that "The object of the Act as shown by the scheme of the Act....is the prevention of self-medication and self-treatment and a curb on such advertisements is a means to achieve that end."
9 Kasturika Sen, Advertisement of Drugs in India: An Overview available at http://www.mondaq.com/article.asp?articleid=265212&signup=true&newsub=1 accessed on 23-10-2013 at 8pm. 10 AIR 1960 SC 554
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The court in, H.T Media Ltd & Ors vs State11, it was held by the High Court of Delhi that in the instant case, admittedly no medicine is being advertised. What is stated by the advertiser is that cure for the high blood pressure and sugar is available by an Ayurvedic drug. Since the name of the drug has not been disclosed and rather the patient has been advised to contact Dr. Bengali (Kishan Malik), it cannot be said that the advertisement is for any drug to be used for diagnosis, cure, etc. of any disease specified in the Schedule. Because of stringent licensing, manufacturing, stocking and selling provisions, pharmaceutical companies are always looking at the opportunity of getting their products exempted from the purview of the drug related Acts. Without adhering to strict quality control norms, the manufacturers try to continue their business by avoiding obtaining licenses. By and large, however, the courts have given a liberal meaning to the term ‗drug‘ and did not show the easy escape routes for these manufacturing companies. In Prabhudas Kalyanji Adhia vs. State of Maharastra12the Bombay High Court while dealing with a case wherein the appellant was convicted for selling D.D.T. compound without license. The contention of the appellant was that though he was selling D.D.T., It was not meant for medical use which has also been clarified in the label. The Bombay High Court held him guilty by saying that while implementing laws meant for public use popular meaning should be given to words. The court said that to a common person D.D.T. is a drug and even if it is used as medicine, license for the purpose would be required. The Supreme Court of India in a series of judgments has laid down a twin test for determining whether an item falls within the term medicament or not.13 The twin tests are:
11 [CLR MC 3060/2010] 12 AIR 1970, BOM,134 13 CCE V. RichardsonHindustan Ltd. (2004) 9 SCC 136
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1. Whether the item is commonly understood as a medicament which is called the common parlance test. For this test it will have to be seen whether in common parlance the item is accepted as a medicament. If a product falls in the category of medicament, it will not be an item of common use. A user will use it only for treating a particular ailment and will stop its use after the ailment is cured. The approach of the consumer towards the product is very material. One may buy any of the soaps available in the market. But if one has a skin problem, he may have to buy a medicated soap. Such soap will not be an ordinary cosmetic. It will be medicament falling in Chapter 30 of the Tariff Act. 2. In respect of ayurvedic medicaments, are the ingredients used in the product mentioned in the authoritative textbooks on Ayurveda? The court in Chimanlal vs. State of Maharastra14 while deciding the issue whether ‗absorbent cotton, wool, roller bandages and gauze‘ are drugs under the Act held that the definition of ‗ drugs‘ under section 3(d) of the Drugs Act is comprehensive enough to cover substances intended to be used for or in treatment of diseases of human beings including medicines. The main object of the Act, the court said is to prevent sub-standard drugs, presumably for maintaining high standards of medical treatment and that would certainly be defeated if the necessary concomitants of medical or surgical treatment were allowed to be diluted. The court ruled that ‗absorbent cotton, wool, roller bandages and gauze‘ are substances used for or in treatment of disease, and hence are ‗drugs‘ for the purpose of the Act. The High Court of Kerala in the case of Cadila Pharmaceuticals Ltd. Vs. State of Kerala15 ignoring the contention of the petitioner who was manufacturing EC350 (Vitamin E and C) capsules and Cecure (multi-vitamin capsules) and were sold in medical outlets as ‗dietary supplements‘, the court took the view that vitamin capsules are prescribed by doctors in cases of
14 AIR 1963 SC 665 15 AIR 2000 Kerala 357
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vitamin deficiency of a definite dosage for mitigating and preventing diseases. Vitamin capsules therefore, squarely fall within the definition of ‗drugs‘ under the Drugs and Cosmetics Act and requires license. On a number of occasions the courts exercised its power of interpretation of Governments decision to totally ban certain drugs. The court in the case of S.R.Pvt. Ltd. Vs. Prem Gupta, Drug Controller of (India), New Delhi16 dealing with a case on ban of spurious drugs wherein the petitioner challenged the order of the Central Government under Section 26-A of the Drugs and Cosmetics Act, 1940 which banned the manufacture and sale of fixed dose combination steroids was of the opinion that the court would not ordinarily interfere with decision taken by the Government basing on the opinion of an expert body to ban a particular drug or combination. Systopic Laboratories Pvt. Ltd. vs. Dr. Prem Gupta & Ors.17 is a case wherein various pharmaceutical companies had challenged a notification by the Government banning the manufacture and sale of corticosteroids with another drug for internal use for treatment of asthma under Section 26-A of the Drug and Cosmetics Act, 1940. Expert committees were set up by the Government that found that no therapeutic purpose would be served by such combinations. They went into the massive literature submitted by the Companies but still came to the same conclusion. They also felt that no purpose would be served by clinical trials. Accordingly, the expert committees recommended a total prohibition and the Government agreed with this. The Supreme Court found nothing wrong with such a prohibition and held that the Courts would not interfere in such matters when the Government has acted on the advice of expert committees. In Holy Cross Hospital vs. State of Kerala18, the Petitioner was a charitable hospital that stocked medicines for its patients. The petitioner
16 AIR 1993 P& H 28 17 (1994) Supp 1 SCC 160, Also CEHAT, Edited by Desai and Mahabal, August, 2007, Mumbai 18 Discussed in CEHAT, Edited by Desai and Mahabal, August, 2007, Mumbai, p.95
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challenged the order of Drug Controller enforcing the system of Drugs License to Petitioner‘s hospital. On scrutiny of Section 18 of the Drugs Act which says that sellers, stokiest and persons similarly situated are obliged to secure license before stocking drugs. Charitable hospitals were earlier exempted from this requirement but through an amendment this exemption was withdrawn and this was challenged. The Government of India vide its G.S.R.812 (6) dtd. 14.11.94 continued the exemption only in favour of registered medical practitioners, and hospitals/dispensaries maintained or supported by Government or local authorities. The court, however, held that the broad classification between private or charitable hospitals and hospitals/dispensaries under the supervision of Government or local medical bodies was valid and there was nothing unconstitutional in requiring private hospitals to get license for stocking drugs. A landmark petition raised issues that vitally affected the public health and bio-security of the country, by challenging the closure of several public sector vaccine production units in the states of Andhra Pradesh and Tamil Nadu. Vaccines are vital in the public health programme of all nations as they are necessary for the immunization programme, which combats suffering, disability and death. The closure of various public sector vaccine production units by the government, in favor of privatization, would severely impede the availability of vaccination to the poorest and neediest margins of the Indian people. This case achieved its objective as the government reopened the closed vaccine units. Although this case continues to be heard in the Supreme Court, the larger-scale impact of this petition has been that health activists across the country are now pressing for a rational vaccine policy, which will ensure the vaccine security of the country in the long term. 19
19 http://www.hrln.org/hrln/images/stories/pdf/HRLN-Using-The-Law-For-Public-Health- Y.%20Madhavi%20-%20N.%20Raghuram.pdf accessed on 29.8.2014
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CONCLUSION As viewed by the World Health Organization, essential medicines are those that satisfy the priority health care needs of the population. Drugs manufactured should be selected keeping in mind their public health relevance, cost effectiveness and efficacy. Essential drugs are expected to be available in the context of a functioning health system at all times in abundant quantities and in appropriate dosage. India is approaching towards globalization in the recent developments in the Pharmaceutical sector occurring worldwide, India portrays to be a prospective hub for many big foreign Pharmaceutical Companies for drug innovation, based on its comparatively low cost and skill base, so as to exploit this opportunity for the betterment of the country. However, all these while India was failing to implement a rigid and stricter vigilance mechanism on the Pharmaceutical Companies who conduct such clinical trial at the cost of the lives of some vulnerable and poor individuals who are not even aware that in our Country there is existence of "right" to lead a safe and healthy life. However, these rights would be meaningful if the legal provisions concerning affordability and accessibility to drugs would not be whittled down in the coming day
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JOINT CRIMINAL ENTERPRISE & ROME STATUTE
Om Prakash Gautam*1
A. Introduction
The Paper is divided primarily into two major sections, the first section discusses the origin of the Joint Criminal Enterprise in reference to Tadic Case (ICTY). The Second section deals with recognition of Joint Liability in Rome Statute. This is subsequently divided in two sub-sections. First Sub-section deals with Article 25 (3) (a) in reference to Lubanga Decision on Co-perpetrators. The Second Sub-Section deals with the discussion on Article 25 (3) (d) and ―Contribution‖ as discussed in Mbamshimana.
B. The Tadić Decision (ICTY): Origin of Joint Criminal Enterprise
In 1995, Tadić was indicted by the ICTY Prosecutor on a variety of charges. At his trial, he was convicted of several counts of war crimes and crimes against humanity but was acquitted of one of the most serious charges—murder as a crime against humanity—for the murder of five Muslim men in the Bosnian village of Jaskici.2 The Trial Chamber found that Tadić was a member, of a group of armed men who entered Jaskici and beat its inhabitants. Furthermore, the Trial Chamber noted that the five victims, who were alive when the armed group entered the town, were found shot to the death after the group‘s departure. Nevertheless, the Trial Chamber determined that it could not ―on the evidence before it, be satisfied beyond reasonable doubt that the accused had any part in the killing of the
*1 Assistant Professor (Law), Damodaram Sanjivayya National Law University, Vishakhapatnam. 2 Prosecutor v. Tadić, Sentencing Judgement, ICTY Trial Chamber, Case No. IT-94-1-T, July 14, 1997 [57]. [Tadic IV]
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five men.‖3 It also found that the deaths occurred at the same time as a larger force of Serb soldiers was involved in an ethnic cleansing operation in a neighbouring village.4 The prosecution appealed, Tadić‘s acquittal of this charge, arguing that the Trial Chamber had misapplied the test of proof beyond reasonable doubt. The Appeals Chamber agreed, concluding that “the only reasonable conclusion the Trial Chamber could have drawn is that the armed group to which [Tadić] belonged killed the five men.”5 The Appeals Chamber next considered whether Tadić could be found guilty of the killing, despite an absence of proof that he had personally shot the men. The Appeals Chamber first reviewed the language of Article 7(1). While it noted that the forms of liability articulated therein described ―first and foremost the physical perpetration of a crime by the offender himself,‖ it also found that the crimes within the jurisdiction of the Tribunal ―might also occur through participation in the realisation of a common design or purpose.‖6 To determine the relevant requirements for common purpose liability, the Tadić Appeals Chamber turned to customary international law, which it derived chiefly from case law of military courts set up in the wake of World War II. The Appeals Chamber identified several cases from this period in which it found that military courts had convicted individuals on the basis of participating in a common plan. The Appeals Chamber concluded that ―broadly speaking, the notion of common purpose encompasses three distinct categories of collective criminality.‖7
3 Prosecutor v. Tadić, Judgement, ICTY Trial Chamber, Case No. IT-94-1-T, May 7, 1997 [373]. [Tadic III] 4 Ibid [373]. 5 Prosecutor v. Tadić, Judgement, ICTY Appeals Chamber, Case No. IT-94-1-A, July 15, 1999 [183]. [Tadic V]. 6 Ibid [188]. 7 Ibid [195].
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In the first category, the perpetrators act pursuant to a common design and share the same criminal intention.8 To be found guilty of the crime of murder, via this ―Category One‖ of joint criminal enterprise for example, the prosecution must prove that the common plan was to kill the victim, that the defendant voluntarily participated in at least one aspect of this common design, and that the defendant intended to assist in the commission of murder, even if he did not himself perpetrate the killing.9 The second category of JCE relates to ―systems of ill-treatment,‖ primarily concentration camps.10 For this category, the prosecution need not prove a formal or informal agreement among the participants, but must demonstrate their adherence to a system of repression.11 To convict an individual under this rubric, the prosecution must prove the existence of an organized system of repression; active participation in the enforcement of this system of repression by the accused; knowledge of the nature of the system by the accused; and the accused‘s intent to further the system of repression.12 In both Categories One and Two, all members of the JCE may be found criminally responsible for all crimes committed that fall within the common design. The third, and most far-reaching, category of JCE involves criminal acts that fall outside the common design. The Tadić Appeals Chamber concluded that a defendant who intends to participate in a common design may be found guilty of acts outside that design if such acts are a ―natural and foreseeable consequence of the effecting of that common purpose.‖13 As an example of the kind of act that would fall within this third
8 Ibid [196]. 9 Ibid [196]. 10 Ibid [202]. 11 Prosecutor v. Krnojelac, Judgement, Case No. IT-97-25-A, ICTY Appeals Chamber, Sep. 17, 2003, [96]. 12 Ibid, above n 5 [203]. 13 Ibid [204].
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category, the Appeals Chamber offered the illustration of: “a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region . . . with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of these civilians.”14 The Appeals Chamber also noted that all participants in the common enterprise would be guilty of this murder if the risk of death was a ―predictable consequence of the execution of the common design‖ and if the defendant was ―reckless or indifferent‖ to that risk.15 The Appeals Chamber thereafter found that Tadić had participated in the common ―criminal purpose to rid the Prijedor region of the non-Serb population,‖ and that the killing of non-Serbs was both foreseeable in light of this purpose and that Tadić was aware of this risk but nevertheless willingly participated in the common plan.16 On appeal, therefore, Tadić was convicted of the murder of the five men on the liability theory of a Category Three JCE—a crime for which he had been acquitted at trial.
C. Joint Criminal Liability in Rome Statute: Article 25(3)(a) of the Rome Statute, makes a reference to the Individual criminal responsibility for the crime committed ―as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible” and the Trial Chamber- I (ICC) in the Thomas Lubanga Case interpreted the provision to include the existence of the Common plan for liability for acts of others. Article
14 Ibid [204]. 15 Ibid [204]. 16 Ibid [232].
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25(3)(d) requires a contribution to the commission or attempted commission of an offence must be ‗intentional‘, ‗with the aim of furthering the criminal activity or criminal purpose of the group‘ or ‗in the knowledge of the intention of the group to commit the crime‘. i. Lubanga Decision & Article 25 (3) (a): Thomas Lubanga and other commanders of Force Patriotique pour la Libération du Congo (―FPLC‖), the alleged co-perpetrators in the case17 – agreed upon a plan and acted together in order to build an army that included young people and to create a political movement. Furthermore, it is said they used political and military means to take control of Bunia and to exercise authority throughout Ituri. Lubanga was alleged to have coordinated and to have had the ―final say‖ as to the group‘s activities.18 Children under the age of 15 were allegedly conscripted and enlisted, and used to participate actively in hostilities.19 The Trial Chamber- I in the case, concluded that: ―By September 2002, Thomas Lubanga, the President of the UPC/FPLC, had entered into an agreement, and thereafter participated in a common plan, with his Co-perpetrators to build an effective army in order to ensure the UPC/FPLC‘s political and military control over Ituri.‖ This plan resulted in the conscription, enlistment and use of children under the age of 15 to participate actively in hostilities, a consequence which occurred in the ordinary course of events. This conclusion satisfies the common-plan requirement under Article 25(3)(a).20 Lubanga issued instructions relating to the implementation of the common plan. He was involved in planning military operations and he exercised a key role in providing logistical support, by ensuring weapons,
17 The Prosecutor v .Thomas Lubanga Dyilo, ICC-01/04-01/06-2748-Red [77]. 18 Ibid [78]. 19 Ibid [74]. 20 The Prosecutor v .Thomas Lubanga Dyilo, Trial Chamber I, ICC-01/04-01/06, 14 March 2012, [1136].
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ammunition, food, uniforms and military rations and other supplies were available for the troops. The fact that other alleged co-perpetrators, such as Floribert Kisembo and Bosco Ntaganda, were more involved with the day- to-day recruitment and training of soldiers, including those under the age of 15, does not undermine the conclusion that Mr Lubanga‘s role was essential to the implementation of the common plan. In addition, the accused and other commanders were protected by guards, some of whom were below 15. The use of children as bodyguards for the commanders amounts to their use to participate actively in hostilities. The role of the accused within the UPC/FPLC and the hierarchical relationship with the other co-perpetrators, viewed in combination with the activities he carried out personally in support of the common plan, as demonstrated by the rallies and visits to recruits and troops, lead to the conclusion that the implementation of the common plan would not have been possible without his contribution.21 The accused and his alleged co-perpetrators, worked together and each of them made an essential contribution to the common plan that resulted in the enlistment, conscription and use of children under the age of 15 to participate actively in hostilities.22 Hence the Trial Chamber - I concluded that the accused made an essential contribution to the common plan for the purposes of Article 25(3)(a).23 ii. Mbarushimana Case (ICC) & Article 25 (3)(d): Article 25(3)(d) of the Statute, requires that a contribution to the commission or attempted commission of an offence must be ‗intentional‘, not negligent. For example, if a merchant is charged with selling goods that are instrumental for the commission of a crime to a member of a criminal group, the act of selling must be intentional, as
21 Ibid [1270]. 22 Ibid [1271]. 23 Ibid [1272].
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opposed to merely accidental. In addition to the requirement that the contribution be ‗intentional‘, there is a second prong in Article 25(3)(d) that must be fulfilled: the contribution must either be made ‗with the aim of furthering the criminal activity or criminal purpose of the group‘ or ‗in the knowledge of the intention of the group to commit the crime‘.24 On 28 September 2010, ICC Pre-Trial Chamber I issued an arrest warrant for Callixte Mbarushimana, finding ‗reasonable grounds to believe‘ he was ‗criminally responsible within the meaning of Article 25(3)(d) of the [Rome] Statute‘ for various war crimes and crimes against humanity allegedly committed by the Democratic Forces for the Liberation of Rwanda (FDLR) in the Democratic Republic of Congo (DRC).25 Mbarushimana was arrested in France on 11 October 2010 and transferred to ICC authorities in The Hague on 25 January 2011. On 16 December 2011, the Pre-Trial Chamber rendered the "Decision on the confirmation of charges", declining, by majority, to confirm the charges against Mr Mbarushimana.26 The prosecution‘s theory of the case in Mbarushimana was that in 2009, ‗the FDLR hierarchy launched a campaign aimed at attacking the civilian population and creating a ―humanitarian catastrophe‖ in the Kivu provinces of DRC‘, involving the commission of war crimes and crimes against humanity, ‗in order to draw the world's attention to the FDLR's political demands‘. The charges against Mbarushimana were based on his role as the FDLR‘s ‗Executive Secretary‘ and actions in this capacity of issuing press releases and serving as the public face of the FDLR
24 Ohlin, Jens David, "Three Conceptual Problems with the Doctrine of Joint Criminal Enterprise" (2007). Cornell Law Faculty Publications. Paper 30.
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internationally. In conducting these activities, the prosecution alleged that Mbarushimana knowingly contributed to ‗a significant part of the [FDLR‘s alleged] strategy of attacking the civilian population‘ namely by ‗publicly denying any responsibility of the FDLR for the losses entailed by those attacks, in some instances blaming other armed parties to the conflict‘. The Pre-Trial Chamber considered the requisite contribution under article 25 (3) (d) of the Statute, and explained: “277. [...] [a] threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group's criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed. For these reasons, the Chamber considers that 25(3)(d) liability would become overextended if any contribution were sufficient. [...] 285. For the reasons above, the Chamber finds that, in order to be criminally responsible under article 25(3)(d) of the Statute, a person must make a significant contribution to the crimes committed or attempted. The extent of the person's contribution is determined by considering the person's relevant conduct and the context in which this conduct is performed.”27 The Pre-Trial Chamber found that this conclusion reflected the intention of the Statute's drafters that only crimes of sufficient gravity should be prosecuted. At the same time, the Pre-Trial Chamber rejected the
27 Ibid [54].
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idea that the contribution should be more than significant, that is, essential or substantial.28 Tuming to the case at hand, the Pre-Trial Chamber noted, with reference to its finding regarding crimes against humanity, that there was not sufficient evidence to establish substantial grounds to believe that a group of persons acting with a common purpose existed. Despite this finding, the Pre-Trial Chamber analysed the alleged contributions of Mr Mbamshimana, concluding "that the [Mr Mbamshimana] did not provide any contribution to the commission of such crimes, even less a 'significant' one".29 The Pre-Trial Chamber then summarised its assessment of the evidence before it, making four separate findings in respect of the four ways in which the Prosecutor had argued that Mr Mbamshimana had contributed to the common plan, namely: (a) Mr Mbamshimana's role as a leader of the FDLR and his alleged contribution to the common plan; (b) the alleged articulation and dissemination of an intemational media campaign seeking to conceal the crimes committed by the FDLR on the ground and to extort political concessions; (c) Mr Mbamshimana's role in peace negotiations; and (d) his alleged encouragement of troops on the ground through press releases and speeches.30 The Pre-Trial Chamber found that, "in order to be criminally responsible under Article 25 of the Statute, a person must make a significant contribution to the crimes committed or attempted".31 According to Judge Silvia, in the provision, the contribution is only qualified by the phrase "in any other way".32 The phrase "in any other way" indicates that there should
28 Ibid [55]. 29 Ibid [56]. 30 Ibid [57]. 31 The Prosecutor v. Callixte Mbarushimana, The Appeals Chamber, ICC-01/04-01/10 OA 4, 30 May 2012, Separate Opinion of Judge Silvia Fernandez de Gurmendi [7]
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not be a minimum threshold or level of contribution under this mode of liability. As a commentator held: "Any contribution to the group crime ("in any other way contributes") not covered by another form of participation, especially assistance, establishes the criminal liability of the accessory". Depending on the circumstances of a case, providing food or utilities to an armed group might be a significant, a substantial or even an essential contribution to the commission of crimes by this group. In her view the real issue is that of the so-called "neutral" contributions.33 The Pre-Trial Chamber borrowed from joint criminal enterprise concepts as applied by the ad hoc Tribunals and argues that contributing to a crime committed by a group of persons acting with a common purpose requires a "significant" contribution. The Pre-Trial Chamber finds that the threshold of significant contribution is relevant to the discussion because both modes of liability emphasise group criminality and because at the ad hoc Tribunals, joint criminal enterprise requires a lower threshold of contribution than aiding and abetting. According to Judge Silvia, the reference to joint criminal enterprise is irrelevant to the interpretation of the term "contributes" in Article 25 (3) (d) of the Statute. Both modes of liability pertain to statutory systems that are different from each other.34 D. Conclusion: While JCE creates liability for participation in joint endeavors, Article 25 makes no direct mention of joint criminal endeavors but instead establishes liability for individuals who "contribute" to a group acting with a common purpose. The ICC Statute, does not expressly refer to joint criminal enterprise as such. Article 25(3)(d) provides that a person shall be liable if he intentionally contributes to the commission of a crime by a group of persons acting with a common purpose, with the aim of furthering the crime or the criminal purpose, or knowing that the group intends to commit the crime. To what precise extent Article 25(3) of the ICC Statute overlaps with the law on
33 Ibid [12]. 34 Ibid [14].
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joint criminal enterprise as expounded by, for example, the ICTY, is debatable. Article 25(3)(d) may overlap to some degree with the mentioned ICTY law. More importantly, the ICC Statute, through Articles 25(3)(a) and (d), seemingly can apply to criminal responsibility based, among other things, on participating in a common criminal plan.
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THE AKAYESU JURISPRUDENCE: TOWARDS RECOGNISING RAPE AS AN ACT OF GENOCIDE
Astha Tripathi and Nirbhay Prakash*1 1. Introduction The term ‗Genocide‘ in general parlance refers to the act of extermination via killing, but in recent times, due of certain landmark judgments; there has been an international recognition of violent sexual acts, not resulting in death to amount to genocide. The term genocide is a hybrid consisting of the Greek word ‗genos‘, meaning race, nation or tribe, and the Latin suffix, ‗cide‘, meaning killing. The crime of genocide was first coined by Rafael Lempkin in 1944 in his book, Axis Rule in Occupied Europe, which was described as the destruction of a nation or of an ethnic group. He defined genocide as both the 'mass killings of all members of a nation,' and the 'coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the group themselves‟.2 The first question that is of considerable importance is what is gender related violence? The UN Committee on the Elimination of Discrimination against Women (CEDAW) has defined gender based violence against women as ‗violence that is directed against a woman because she is a woman or that affects women disproportionately‘.3 ‗Disproportionately‘ means that such forms of violence are committed most frequently, although not exclusively, against members of one sex, or have different consequences for women and men. This is not
*1 Astha and Nirbhay hold an LL.M from South Asian University, New Delhi. They completed their B.A. LL.B (Hons) from University of Allahabad and W.B. National University of Juridical Sciences, Kolkata respectively. They are presently associated with Damodaram Sanjivayya National Law University (DSNLU), Visakhapatnam. 2 Klaus Kreb, ‗The Crime of Genocide under International Law‘ (2006) 6 Int'l Crim. L. Rev. 461, 470 3 CEDAW General Recommendation No 19, Adopted at the Eleventh Session of the Committee on the Elimination of Discrimination against Women in 1992, available online at http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm (last visited 06 September 2014)
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to say that gender based crimes cannot be committed disproportionately against men, but most offences ( such as rape, sexual slavery, forcible sterilization, trafficking, etc) target women directly because of their gender and gender specific consequences such as pregnancy, HIV/AIDS, social stigma and shame.4 So the main query lies as to whether such forms of sexual violence which deliberately target women on an individual basis be compared to a crime whose very root lies in the fact that it is aimed at eliminating an entire race. The primary question that the authors intends to address in this work is whether sexual or gender related violence constitutes a part of the crime genocide.
2. Genocide under International Law The term genocide evokes thoughts of the systematic murdering of individuals, but is more appropriately viewed as an attack on an ethnicity, rather than on an individual.5 Genocide has been defined in Article II of the Genocide Convention6 as: For the purpose of this Statute, „genocide‟ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group;
4 Antonio Cassese, The Oxford Companion to International Criminal Justice, (1st Edn OUP 2009), 78 5 Jonathan Short M.H, ‗Sexual Violence as Genocide: The Developing Law of the International Criminal Tribunals and the International Criminal Court‘ (2002-2003) 8 Mich. J. Race & L. 503 6 Convention on the Prevention and Punishment of the Crime of Genocide, Art. II (adopted on 9 December 1948, entry into force 12 January 1951)78 U.N.T.S. 277 [hereinafter Genocide Convention]
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(e) Forcibly transferring children of the group to another group. There has been a reiteration of the definition of genocide in article 6 of the Rome statute7, article 2 of the ICTR statute8 and article 4 of the ICTY statute9, which chose to adopt the same definition of genocide as given in the genocide convention. The question which needs consideration is whether sexual crimes can come within the ambit of genocide. In accordance with the above definition of genocide, sexual or gender crimes such as rape do not fall traditionally or explicitly in this definition. It must be acknowledged that women are violated in ways that men are not, or rarely are. Rape, trafficking and other forms of sexual violence against women have continuously been used as weapons of war to subjugate communities.10 The 1863 Lieber Code, one of the first efforts to codify the laws of war, designated rape as a war crime, rejecting the customary view that the rape of women associated with the enemy was an expected spoil, inevitable by-product or legitimate tactic of war. 11Many tribunals have merely trivialised the occurrence of rape as an offshoot of war.12 Moreover, historically, crimes of sexual violence were not considered as ‗equivalent in status to other acts of violence and inhumanity constituting crimes against the world community as a whole‘ by international legal jurisprudence.13 On the other hand, such acts were
7 Rome Statute of the International Criminal Court, Document A/CONF.183/9 (adopted on 17 July 1998, entered into force 1 July 2002) 8 International Criminal Tribunal for Rwanda, Nov. 8, 1994, 33 I.L.M. 1598-1604 [hereinafter ICTR]. 9 International Criminal Tribunal forYugoslavia, May 25, 1993, 32 I.L.M. 1192-95 [hereinafter ICTY]. 10 Frances T Pitch, ‗The Crime of Rape in International Humanitarian Law‘ (1998-1999) 9 U.S. A.F. Acad. J. Legal Stud. 99 11 Beth Van Schaack, ‗Engendering Genocide: The Akayesu case before the International Criminal Tribunal for Rwanda‘(2008) Santa Clara University of Law, Working paper No. 08-55, available online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1154259 (last visited 03 August 2014) 12 Jeffrey S Morton, ‗The International Legal Adjudication of Crime of Genocide‘(2000- 2001)7 ILSA J. Int'l & Comp. L. 329 13 Kristen Boon, ‗Rape and Forced Pregnancy under the ICC Statute: Human Dignity, Autonomy, and Consent‘ (2001) 32 Colum. Hum. Rts. L. Rev. 625,627
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commonly ‗designated as moral crimes and outrages on honour, a classification that tended to focus on perceived violations of the victim's honour or dignity, rather than the physical and mental trauma brought about by an assault‘.14 It was only in later cases brought before Internationals tribunals of Yugoslavia and Rwanda that the severity of such crimes and their subsequent and horrific impact on the people was recognised.15 Therefore, the next important question is how rape as a sexual crime can be fit into the parameters of genocide as a crime. The definition of genocide in the Genocide Convention does not mention sexual violence per se, but it does include various acts involving the commission of serious bodily and mental harm and this is where the tribunal in the Akayesu case believed that rape could be viewed as an act of genocide.16 According to the Human Rights Watch report, Shattered Lives: Sexual Violence during the Rwandan Genocide and its aftermath, it was said that:
“Acts of rape and other forms of sexual violence can fall into the categories of proscribed acts under the Genocide Convention. Where it can be shown that perpetrators committed such acts causing serious bodily or mental harm with the intent to destroy, in whole or in part, a group identified by the terms of the convention, crimes such as rape, sexual mutilation and sexual slavery may be prosecuted under subsection (b) of Article 2. As the testimonies in this report demonstrate, extremely serious bodily and mental harm was inflicted through targeted sexual violence against women. Moreover, under certain circumstances, sexual violence may be prosecuted under subsection (c) or (d) of Article 2. Sexual violence can inflict on a group conditions of life calculated to cause the group's physical destruction and can prevent births within the group. For example, women subjected to
14 ibid 15 Jonathan, Supra n. 5 at 508 16 Prosecutor v. Jean-Paul Akayesu Case No. (Sept. 2, 1998) ICTR-96-4-T[hereinafter Akayesu Case]
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sexual violence may be left physically unable to reproduce, or, they may be denied this role by their community given the nature of the attacks they have suffered”.17
Now, how does rape perpetuate the same effect as genocide? In the eyes of the perpetrator, rape is viewed as an ideal and effective method of isolating and degrading women in their community. One of the many consequences of this act is to mark women as 'spoiled' and ‗unsuitable‘ for traditional marriage and family life18. It tends to breakup families, ostracizes victims, and in some cases, leads to the murder of victims by their family or communities. For example, in Yugoslavia, the Serbs specifically utilized rape as an instrument of war for infliction of physical and cultural damage.19 Moreover, the reason why rape should be included as involving the commission of serious bodily and mental harm is because it causes immense physical and psychological damage to the individual victim, in some cases, leaving the victim unable to procreate.20 Additionally, rape is also used as a method of introducing or spreading disease to an ethnic group. Perpetrators of genocide can use rape to spread mortal diseases, such as HIV/AIDS, or other sexually transmitted diseases, through innocent victims, to the ethnic groups, especially in regions with limited technology to detect such diseases.21 Another result of such a dehumanising act of violence is
17 Binaifer Nowrojee, ‗Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath‘, Human Rights Watch, Africa, available online at http://www.hrw.org/legacy/reports/1996/Rwanda.htm (last visited 10 July 2014) 18 Sarnata Reynolds, Deterring and Preventing Rape and Sexual Slavery During Periods of Arned Conflict, (1998) 16 Law & Ineq. 601, 606-07 19 Within Muslim community and under Islamic law, significant stigma attaches to the victims of sexual violence. Such victims are perceived as undesirable, soiled and unfit for marriage. Therefore, reproduction is impaired within a specific community, which is essentially the primary objective of the genocidal perpetrator, who wants to exterminate the entire race or ethnic group, ibid 20 Todd A. Salzman, ‗Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia‘ (1998) 20 Hum. Rts. Q. 348, 375 21 Jonathan, Supra n.5 at 510
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forced pregnancy whereby a woman is impregnated through the means of rape with the sperm of a man of a different ethnicity.22 In other words, the child is permanently labelled with the father‘s ethnicity removing all traces of the previous or mother‘s ethnicity. For example, in Yugoslavia, women were detained in a ‗rape camp‘ effectively till the time they could no longer safely terminate their pregnancy, thereby ensuring the prominence and continuity of the perpetrator‘s race.23 The basic objective of the genocide perpetrator is to use rape as a brutal weapon or tool to wipe out the whole race by leaving physical and mental scars on the victim and by devastating families, communities and cultures to such an extent that there would be no desire left on people of that ethnic group to survive. 24
3. The Akayesu Judgment: Analysis Facts of the case The country of Rwanda is said to be composed of three distinct populations – the Hutu, the Tutsi and the Twa. Historically, there was always a great deal of rivalry and antagonism between the Hutus and the Tutsis. The carnage against Tutsis began in 1990 following an attack that was launched from Uganda by the Rwandese Patriotic Front (RPF), a group formed in 1979 by Tutsi exiles based in Uganda. On April 6, 1994, the plane that was taking President Habyarimana and Burundian President Cyprien Ntaryamira back to Rwanda was shot down.25 The identity and the motive
22 Forced impregnation, in its simplest terms, is the impregnating of a woman against her will, whether by rape or other medical means where the intended outcome is to force a woman to bear a child of a different ethnicity. The method of forced impregnation targets the women of a population the perpetrators wish to destroy or ‗cleanse‘ and rape and detain them for a period of time until the women are unable to safely or legally abort the child. See Siobhan K. Fisher, ‗Occupation of the Womb: Forced Impregnation as Genocide‘ (1996) 46 Duke L.J. 91, 92 23 Salzman, Supra n. 20 at 355 24 Jonathan, Supra n. 5 at 507 25 The Akayesu Case, para 1
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of the assassins remain unknown. President Habyarimana was a Hutu and it was said that the RPF was to be blamed for his death. In any case, this was used as the alleged reason for the great bloodshed and carnage that ensued. The Rwandan genocide started after this incident and continued up until July 18, 1994 resulting in the death of an estimated total number of victims varying from 500,000 to 1,000,000 or more26. Almost 250,000-500,000 rapes were committed during the Rwandan genocide.27 Jean Paul Akayesu was the bourgmestre (mayor) of the Taba Commune in the period of April 1993 to June 1994 and under this title, he was responsible for the performance of executive functions and the maintenance of public order within his commune, subject to the authority of the prefect.28 He had exclusive control over the communal police and was also responsible for the execution of laws and regulations and the administration of justice.29 According to the indictment, the killings in Taba were openly committed and so widespread that Akayesu must have known about them. The prosecutor in the case alleged that at least 2000 murders took place in his commune and Akayesu did not do anything to prevent or punish the assailants and never called for assistance from regional or national authorities to quell the violence.30 The interesting thing was that the original indictment did not include any mention of the charge of rape as genocide against Akayesu and it was only later on mention of such acts during witness statements that this issue was brought to the fore and included in the
26 ibid 27 Awet Hailezgi Tefera, „The Elements of Rape as a Crime of Genocide under International Criminal Law: Case law analysis‘(2014) 2 Mekelle U. L.J. 35, 36 28 Rwanda is divided into 11 prefectures, each of which is governed by a prefect. The prefectures are further subdivided into communes which are placed under the authority of bourgmestres. In Rwanda, the bourgmestre is the most powerful figure in the commune. His de facto authority in the area is significantly greater than that which is conferred upon him de jure, ibid 29 ibid 30 ibid
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amended indictment. Therefore, with respect to the acts of rape and sexual violence, the indictment charged that Akayesu knew that acts of sexual violence, beatings, and murders were being committed and was at times present during their commission. Furthermore, it was alleged that Akayesu facilitated the commission of the sexual violence, beatings, and murders by allowing the sexual violence, beatings and murders to occur on or near the bureau communal premises and thereby as he had taken no such step to bring order to the ensuing chaos, he was responsible for all the acts committed.31 In the trial, there were fifteen counts in the indictment against Akayesu and he was charged with genocide, crimes against humanity (extermination, murder, torture, rape, other inhumane acts), incitement to commit genocide, violations of Common Article 3 to the Geneva Conventions and of Article 4(2)(e) of Additional Protocol II (murder, cruel treatment, outrages upon personal dignity, in particular rape, degrading and humiliating treatment and indecent assault). The trial against Akayesu commenced on January 9, 1997 before the trial chamber of the ICTR composed of Judge Laity Kama (Senegal), Judge Lennart Aspegren (Sweden) and Judge Navanethem Pillay (South Africa).32
Judgment of the case The Akayesu case is a landmark judgment because it is the first case to present an important jurisprudence in the international law on rape and acts of sexual violence in armed conflict as well as in recognizing rape as an act of genocide. The Tribunal found Akayesu liable for inciting, ordering, and causing harm to Tutsi individuals seeking refuge in the bureau communal. For these acts, he was convicted of murder, extermination and torture as crimes against humanity. With respect to the allegations of rape
31 ibid 32 ibid
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and sexual violence, Akayesu was found guilty of genocide and crimes against humanity (rape and other inhumane acts). The ground breaking judgment firstly recognized that ‗genocidal rape‘ during the Rwandan genocide happened to certain women because of their ethnicity, specifically to Tutsi women or Hutu women married to Tutsi men. The Tribunal also recognized that these women were targeted both because of their ethnicity and because of the beliefs and opinions held by Hutus about Tutsi women.33 For example, a document known as the ‗Hutu Ten Commandments‘ is a prime example of this antagonism against Tutsis specifically Tutsi women as one of its clauses says that any Hutu who marries, befriends or employs a Tutsi woman as a secretary or a concubine is a traitor. 34 Secondly, one of the major problems in the discussion of genocidal rape is the effacement of gender and an inherent focus on ethnicity. But this was not so in this case as the Tribunal recognized that although the objective of the act of genocidal rape is to obliterate a particular group, the effect of the act is the infliction of serious injury and harm.35 The Rwandan Tribunal acknowledged genocidal rape as possibly the most effective and serious way of inflicting injury and harm to individual Tutsi women, thus advancing the destruction of the entire Tutsi group.36 Sexual mutilation and torture was a sure shot consequence of rape in Rwanda. Major Brent Beardsley described the state of female corpses that he had seen before the ICTR:
“When they killed women it appeared that the blows that had killed them were aimed at sexual organs, either breasts or vagina, they had been deliberately swiped or slashed in those areas. Girls as young as six, seven
33 Sherri L Rusell Brown,‗Rape as an Act of Genocide‘(2003) 21 Berkeley J. Int‘l L. 350, 352 34 Christopher Scott Maravilla, ‗Hate Speech as a War Crime: Public and Direct Incitement to Genocide in International Law‘ (2008-2009) 17 Tul. J. Int'l & Comp. L. 113, 130 35 Brown, Supra n. 33 at 352 36 ibid
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years of age, their vaginas would be split and swollen from obviously multiple gang rape, and they would have been killed in that position.”37 Tutsi men had the privilege of being macheted which was a more painless as well as quicker death. But the aim of genocidal rape in Rwanda was to kill Tutsi women, whether it be through the transmission of AIDS, penetration with sharp objects, or as a result of the sheer number of times a woman was raped.38 Furthermore, the Chamber presented an analogy to torture when it noted that like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, and the control or destruction of a person.39 Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when it is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.40 The Tribunal stated:
“The rape of Tutsi women was systematic and was perpetrated against all Tutsi women and solely against them. A Tutsi woman, married to a Hutu, testified before the Chamber that she was not raped because her ethnic background was unknown. As part of the propaganda campaign geared to mobilizing the Hutu against the Tutsi, the Tutsi women were presented as sexual objects. Akayesu himself, speaking to the Interahamwe (those who fight together) who were committing the rapes, said to them: „don't ever ask against [sic] what a Tutsi woman tastes like‟. This sexualized representation of ethnic identity graphically illustrates that Tutsi women were subjected to sexual violence because they were Tutsi. Sexual violence was a step in the
37 Van Schaack, Supra n. 11 38 Brown, Supra n. 33 at 354 39 Catharine A Mackinnon, ‗Defining Rape Internationally: A Comment on Akayesu‟ (2005-2006) 44 Colum. J. Transnat'l L. 940, 943 40 ibid
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process of destruction of the Tutsi group, destruction of the spirit, the will to live, and of life itself.”41 Therefore, all these facts were taken into consideration so as to include rape as a part of genocide in Article II of the Genocide Convention which speaks about ‗causing serious bodily or mental harm to members of the group‘. Thirdly and most importantly, the Chamber defined rape and sexual violence under international law as a form of aggression and stated that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts.42 The Tribunal in its judgment notes the cultural sensitivities involved in public discussion of intimate matters and recalls the painful reluctance and inability of witnesses to disclose graphic anatomical details of sexual violence they endured.43 It defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. It further opined that sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact. The tribunal notes in this context that coercive circumstances need not be evidenced by a show of physical force. Threats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and the coercion may be inherent in certain circumstances, such as armed conflict or the military presence of interahamwe (those who fight together) among refugee Tutsi women at the bureau communal.44 Therefore, through its definition of rape and the finding in its judgment that rape can be an actus reus of genocide, the Rwandan Tribunal acknowledged that it viewed rape not as sexual in nature, but as a tool of war, as a violent act perpetrated against a member of a group with the intent
41 The Akayesu Case, para 732. 42 ibid, para 597 43 ibid, para 687 44 ibid, para 688
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of destroying that group. Additionally, the Tribunal in this case acknowledged how ‗sex worked‘ to destroy a people. By interpreting the enumerated acts of genocide in the Genocide Convention to include acts of rape, the Tribunal acknowledged that sex can cause ‗serious bodily or mental harm‘ to an individual and that sex can kill and be used to destroy a people.45
4. Conclusion The Akayesu case is one of the most promising examples of successful feminist advocacy.46 The International Tribunal acknowledged that, though ‗group‘ is a focal concern of the crime of genocide, ‗genocidal rape‘ is one of the worst ways of inflicting harm and injury on an individual member of that group. This case is highly lauded in gender jurisprudence because it was the first case to give formal recognition to the issue of genocidal rape and provided clarity on the subject where international tribunals previously had considered such rapes as an offshoot of war. In 2008, the Security Council in effect endorsed the legal developments taking place in the international arena by its Resolution 1820 on women, peace and security where it recognised that rape and other forms of sexual violence can constitute a war crime, a crime against humanity or be a constitutive act of genocide.47 But, in spite of all the legal developments that have taken place in the Tribunals and International Courts, there still remain a number of practical, logistic and social concerns. The first concern is the invisibilization of gender related crimes which are often ignored during initial prosecutions and come into focus only through later amendments. This should not be the case and gender related crimes must be prosecuted at
45 Brown, Supra n. 33 at 371 46 Schaack, Supra n. 11 at 29 47 UN Security Council Resolution 1820 (19 June 2008) S/RES/1820
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the very initial stage. Secondly, it must be taken into consideration that for witnesses, giving an account of painful memories may be very traumatic and therefore judges, prosecutors and defence lawyers must be extremely sensitive while handling such matters. Thirdly, emphasis upon women as victims of international crimes defines women through their sexuality and depicts them primarily as victims of international crimes rather than as autonomous actors for change. Finally, one can pose a jurisprudential question as to why crimes of sexual violence against women are so consistently committed in armed conflict and war torn regions. The historic Akayesu judgment tying rape to the crime of genocide, represent quantum leaps in the advancement of human rights through international law. Yet, despite its historical significance in furthering progress in the prosecution of gender-related crimes committed in the context of war or mass violence, the other international tribunals have failed to capitalize on the Akayesu legacy, and consequently gender jurisprudence is relatively meagre outside that achieved in Akayesu.
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TYPOLOGY OF CYBER CRIME
Vatsla Sharma*
Cyber-crime is only a generic term that is used to denote the criminal activities in which a computer or a computer network is either the instrumentally for its commission or its target. It is not easy to fit them under straightjacket types and categories. Many of the cybercrimes could easily fit into different types. For example Hacking is a crime that uses computer as a tool and also as a target. Cyber-crime is dynamic and the criminals innovate their activity on a daily basis.1
The classification of cyber-crime can be classified on various criterions. such as the typology of cybercrimes on the role of computer as an object as well as a tool for its commission, typology based on the criteria of the victims of the cybercrime, typology based on the categories of the offenders and finally the typology of cyber-crime on the basis of the content, which brings within its fold almost all the cybercrimes.
Typology of Cybercrime
The modus operandi of committing the cybercrimes is different than the traditional crimes. However, sometimes conventional crimes are committed by using computers. Besides committing the cybercrimes through the instrumentality of computer, there are certain pure cybercrimes which are committed only in the cyberspace. Various categories of cybercrimes are as follows:
*Assistant Professor Heera Lal Yadav Law College, Lucknow 1 S.V. Joga Rao: Law of Cyber-crime and Information Technology, First Edn. Reprint 2007 (First Edn. 2004) Wadhwa and company Nagpur, p- 88.
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1. Hacking:
Hacking means unauthorized access to a computer system.2 It is the most common type of Cyber-crime being committed across the world. The word., hacking has been defined in section 66 of the Information Technology Act, 2000 as follows, ―whoever with the intent to cause or knowingly that he is likely to cause wrongful loss or damage to public or any person, destroys or alters any information residing in computer resource or diminishes its value or utility or affects it injuriously by any means commits hacking‖.
Hacking is one of the most common cyber-crimes committed mostly either for fun by the teenagers or to cause harm and earn some profit by stealing private information like credit card numbers, account numbers, confident information stored either in emails or in the hard disk of computer for terrorism etc.3
2. Malicious Programs
Malicious programs such as virus, trojan horses, logic bombs, hoaxes etc. intend to cause harm to its victims.4
A. Virus: A computer virus is a programme designed to replicate and spread, generally with the victim being oblivious to its existence. Computer viruses spread by attaching themselves to programme like word processors or spreadsheets or they attach themselves to the boot sector of a disk. Thus when an infected file is activated, the virus itself is also executed. Section 43(c) of the Information Technology Act covers the area of introduction of
2 Section 66 of Information Technology Act, 2000. 3 Cyber Crime: The Pervading Crimes in Virtual World and Law as its antidote, Cri LJ- September 2008 4Shashank Manish: Regulation of Cyber Crime in India, Cri LJ November, 2008- Journal Section, p-307.
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viruses, etc. and shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. Viruses are also classified according to their activity:5
(i) Boot: This virus infects the boot sector of a hard disk or floppy. The boot sector is the first sector of the hard disk or floppy disk. It contains important information that is necessary to load the operating system into the memory of the computer. The boot virus loads into the memory of the computer, which then has trouble starting up.
(ii) Programme: This virus infects executable programme files, have extensions like .exe, .com, .sys, .drv, etc. When the programme is executed the virus spreads to the files.
(iii) Macro: This virus infects the macros of document and templates of MS Word (a part of MS Office programme). When documents are opened the virus activates and sometimes it alerts the text. If this document is copied to another computer through a network or floppy, the virus travels alongwith the document and infects other computer also.
(iv) Worm: This is a code that replicates itself without any host programme. Worms are found in networks where they infect all the computers connected to the main server. Worms are very active in the internet.
(v) Zoo: A virus created in a computer research lab for testing purposes. The word zoo means that it is confined to one place and not allowed to run wild and spread.
B. Trojan horse: A Trojan horse is defined a ―malicious, security- breaking program that is disguised as something benign‖ such as a directory lister,
5 Gupta and Aggrawal: Cyber Laws, Edn. Ist, 2008, Premier Publishing Co. p. 68.
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archiver, game, or a programme to search or destroy viruses.6 Trojan let a hacker access the victim‘s hard disk, and also many functions on his computer.
C. Logic bombs: Logic bombs, once detonated in a computer, makes the program to go into an infinite loop, crash the computer, delete data files, or some other damage to the computer or its data.
D. Hoax: It is false warning about existence of malicious program.
3. Online Forgery:
Online forgery is an offence which needs little effort as compared to offline forgery. It is not usually restored to for money but it is also employed for ―glory or a spirit of devilment, cocking a snook at experts and purchasers‖. Forgery is an offence which existed much before the Internet and in common law, it is defined as fraudulent making or alteration of a writing to the prejudice of another man‘s right.7 Computer forgery is the alteration of computerised documents. Since the proliferation of high- resolution computerized colour laser copies, a new generation of fraudulent counterfeiting has emerged.8
4. Intellectual Property crimes:
Intellectual property consists of a bundle of rights.9 Any unlawful act by which the owner is deprived completely or partially of his rights is an offence. The common form of IPR violation may be said to be software
6The word, Trojan Horse is generally attributed to Daniel Edwards of the NSA. He is given the credit for identifying the attack from in the report, Computer Security Technology Planning Study. 7 Ratanlal & Dhirajlal: Indian Penal Code (26th Edn. Wadhwa & Co. (P) Ltd., Nagpur 1987) 451. 8 Rodney D. Ryder: Guide to Cyber Laws (Wadhwa & Co. (P) Ltd., Nagpur 2001) p-524. 9 The holder of the intellectual property has certain rights that are vested in him alone, unless he chooses to assign them to someone else.
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piracy, copyright infringement, trademark and service mark violation, theft of computer source code, etc. With the development of internet, such efficient tele-communication and information system has strengthened legitimate commercial activities in the present day fast-paced global market which may also be easily used by the criminal networks. This explosion of digitisation and the internet have further enabled intellectual property violators to easily copy and illegally distribute trade-secrets, trade-marks, logos etc. Intellectual property is physical expression of ideas contained in books, music, plays and computer software. Making copies of intellectual property including music, movies and software without the right to do so is punishable under the Copyright Act10 1957. i. Copyright Violation: Copyright is an intellectual property right that subsists in literary and artistic creations. But this right, when violated is not adequately protected and illegal unauthorized distribution of copyrighted works is often the common grievance of copyright owners. A copyright owner may place his work on the world-wide-web with the intention of sharing his creations with the public, but this is usually exploited by the cyber criminals for their personal gain.11 Some aggravated forms of copyright violations are widespread in the business world. They are known as software piracy, industrial piracy etc. ii. Protection of Trademarks: Trademarks are those intellectual property rights that protect a trader‘s goodwill and reputation and differentiate his goods from other traders in the same streams or business.12 Trademark infringement or passing-off actions typically arise through use of marks by one person that belongs to some other person.
10 Section 2(m) of the Copyright Act, 1957 as amended in 1994 which came into force w.e.f. May 10, 1995. 11 The various acts for which copyright Act extends are enumerated in Section 14 of the Copyright Act. 12 Trademark is defined in Section 2(1)(z)(b) of the Trademarks Act, 1999.
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5. Cyber Fraud:
The term ―cyber fraud‖ is not defined in the Information Technology Act 2000 in India. However, according to D. Bainbridge, the phrase ‗Computer Fraud‘ is used to describe ―stealing money or property by means of a computer that is using a computer to obtain dishonestly, property including money and cheques, credit card services, or to evade dishonestly some debt or liability. It might involve dishonestly giving an instruction to a computer to transfer funds into a bank account or using a forged bank card to obtain money from a cash dispenser i.e., automated teller machine‖.13 As electronic commerce has become more prevalent, the application of digital technology to fraudulent endeavours is much greater. The term computer fraud denotes a sub-class of economic crimes that are being carried out by the help of a computer networks and Internet in the cyberspace.14
Online fraud is one of the most lucrative business that is growing today in cyber space. It may assume different forms. Some of the cases of online fraud and cheating that have come to light are those pertaining to credit card crimes, contractual crimes, offering jobs etc.
6. Cyber Terrorism:
Cyber terrorism may be defined to be ―the premeditated use of disruptive activities, or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimidate any person in furtherance of such objectives‖. The convergence of Cyberspace and Terrorism is known as Cyber-terrorism. Cyber-terrorism is generally understood to mean unlawful attacks and threats of attacks against computers, networks, and the information stored
13 D. Bainbridge: Introduction to Computer Law, 4th Ed. 2000. 14 Piragoff, Donald K., ―Computer Crimes and Other Crimes against Information Technology in Canada,‖ International Review of Penal law 201, 1993.
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therein when done to intimidate or coerce a Government or its people in furtherance of political or social objective.15
The role of computer with respect to terrorism is that a modern thief can steal more with a computer than with a gun and a future terrorist may be able to cause more damage with a keyboard than a bomb. No doubt, the great fears are combined in terrorism, the fear or random, violent, victimization segues well with the distrust and out of fear of computer technology. A cyber-crime is generally a domestic issue, which may have international consequences; however cyber terrorism is a global concern, which has domestic as well as international consequences. The common form of these terrorists attack on the Internet is by distributed denial of service attacks, hate websites and the emails, attacks on sensitive computer networks, etc. technology savvy terrorists are using 512-bit encryption, which is next to impossible to decrypt.16
Therefore, we can say even use of mobile phone, wireless, laptop, pocket PC as well as traditional concept of computer to commit terrorism or causing injury to those who cause terror in the mind of public and Government will be treated as cyber terrorism.17
7. Cyber Warfare:
The cyber warfare has gained so much favour among the military strategies that most of the Armies world over now have dedicated cyber warfare terms for defensive as well as offensive operations. Defence planners around the world are investing substantially in information
15Shashank Manish: Regulation of Cyber Crime in India, Cri LJ November, 2008- Journal Section, p- 308. 16Rahul Mathan: Law Relating to Computers & Internet (Butterworth New Delhi) 2000, P. 173 17 Manirani Dasgupta: ―Cyber Terrorism‖, Criminal Law journal, September 2006- Journal Section.
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warfare-means of disrupting the information technology infrastructure of defence systems.18
8. Cyber Pornography:
Pornography19 is defined as the ‗sexually explicit depiction of persons, in words or images, created with the primary, proximate aim, and reasonable hope, of eliciting significant sexual arousal on the part of the consumers of such materials‘. Pornography is distributed through different mediums, including books, magazines, movies, sounds, and animation. Pornography is verbal or pictorial which represents or describe sexual behavior that is degrading or abusive to one or more of the participants in such a way to endorse the degradation.20
Internet Pornography, or Cyberporn, is the use of the Internet (e.g., porno websites, peer-to-peer file sharing networks, chat rooms, electronic bulletin boards) to distribute pornographic material. The presence of pornographic material on a public and global network such as the Internet raises serious concerns for parents, teachers, institutions, and governments.
The Internet has provided a medium for the facilitation of crimes like pornography. Cyber porn as it is popularly known is widespread. Almost 50% of the websites exhibit pornographic material today. Pornography materials can also be reproduced more quickly and cheaply on new media like hard disks and CD-ROM. The new technology is not merely limited to texts and images but have full motion video clips and movies too. These have serious consequences and have result in serious offences which have universal disapproval like child pornography which are far easier for
18 Shashank Manish: Regulation of Cyber Crime in India, Cri LJ November, 2008- Journal Section, p-308. 19 Pornography has been derived from two Greek words i.e. ‗porne‘ and ‗graphe‘. The meaning of word ‗porne is ‗prostitute and word ‗graphe‘ is ‗writing‘. 20 Advocate, Prashant Mali: Cyber Law & Cyber Crimes, First Edition 2012, p-69.
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offenders to hide and propagate through the medium of the internet. Pornography on the net may take various forms. It may include the hosting of web site containing these prohibited materials, use of computers for producing these obscene materials, downloading through the Internet obscene materials. These obscene materials may cause harm to the mind of adolescent and tend to deprave or corrupt their minds.
9. Financial Crimes:
Money is the most common motive behind all crimes including most of the cybercrimes. Globally it is being observed that more and more cybercrimes are being committed for financial motive rather than for ―revenge‘ or for ―fun‖. With the tremendous increase in the use of internet and mobile banking, online share trading, dematerialization of shares and securities, this trend is likely to increase unabated. Financial crimes include cyber cheating, credit card frauds, money laundering, hacking into bank servers, computer manipulation, accounting scams, etc.
10. Sale of illegal articles:
It is becoming increasingly common to find cases where sale of illegal articles such as narcotic drugs, weapons, wildlife, etc, is being facilitated by the Internet. Information about the availability of the products for sale is being posted on auction website, bulletin boards, etc.21 It is practically impossible to control or prevent a criminal from setting up a website to transact in illegal article. Additionally, there are several online payment gateways that can transfer money around the world at the click of a button.
21 Advocate, Prashant Mali: Cyber Law & Cyber Crimes, First Edition 2012, p-95.
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Many sites focus on selling prescription drugs and are referred to by some as ―Internet pharmacies.‖ These sites offer for sale either approved prescription drug product, or in some cases, unapproved, illegal versions of prescription drugs. This poses a serious potential threat to the health and safety of patients. The broad reach, relative anonymity, and ease of creating new or removing old websites, poses great challenges for law enforcement officials.
11. Online Gambling:
It is also called Internet gambling. The habitual and professional gamblers have plenty of opportunities to satisfy their craze for gambling on the internet. There are millions of websites that offer online gambling. They offer online gambling where gamblers upload funds to the online gambling company, makes bets or play the games that it offers, and then cash out any winnings.22 The rapidly growing number of online gambling sites clearly indicates that gambling has become a potential source of entertainment for the computer friendly persons particularly, the youths though they may at times by duped, deceived or cheated by some fake gambling sites.
The special issue with online gambling is that it is legalised in several countries. So, legally the owners of these websites are safe in their home countries. The legal issues arise when a person residing in a foreign country like India (where such websites are illegal) gambles on such a website.23
22 Balwinder Kaur: Internet Gambling, Criminal law Journal, October 2008- Journal Section. 23Rohas Nagpal: Cyber Crime and Corporate Liability, First print 2008, published by Walters Kluwer (India) pvt. Ltd. New Delhi, p-170.
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12. Phishing:
―Phishing‖ is the act of attempting to fraudulently acquire sensitive information, such as passwords and credit cards, by masquerading as a trustworthy person or business in an apparently official electronic communication, such as an email or an instant message.24 The term phishing arises from the use of increasingly sophisticated lures to a fish for users‘ financial information and passwords.
Sending an email to a user falsely claiming to be an established and legitimate enterprise in an attempt to scan the user into surrendering private information they will be used for identity. The email directs the user to visit a website where they are asked to update personal information, such as passwords and credit card, however is bogus and is setup only to steal the users‘ information. By spamming large group of people, the phisher counted on the email being read by a brand spoofing or carding, is a variation on, fishing, the idea being that the bait is thrown out with the hope that while most will ignore the bait, some will be tempted into bring it.
13. Cyber Defamation:
Defamation25 is defined as ―an intentional false communication, either published or publicly spoken, that injure another‘s reputation or good name‖. Defamation with the advent of computers where certain defamatory information is published or posted through email or chat rooms with an intention to defame the reputation of the person is called cyber defamation.
24 R. P. Kataria and S.K.P. Srinivas: Cyber Crimes, Orient Publishing Company, First Edition 2013, P-245. 25 Black‘s Law Dictionary (6th Edn., 1990).
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Cyber defamation is not different from conventional defamation26 except the involvement of a cyberspace medium in the former.27
Sending defamatory email, writing derogatory comments on facebook, orkut or other social networking sites also constitutes cyber defamation. The Internet can be used to spread misinformation, just as easily as information. Defamation can seriously injure the reputation and dignity of victims to a considerable degree, as online statements are accessible to a worldwide audience.
14. Cyber Stalking:
According to Oxford dictionary, ―stalking‖ is defined as ―pursuing stealthily‖. Cyber stalking involves following a person‘s movements across the internet by posting messages frequented by the victim entering the chat- rooms or constantly bombarding the victim with e-mails etc. Cyber stalking generally can be defined as the repeated acts of harassment or threatening by the cyber criminal to the victim through the misuse of internet services. Stalking may be followed by serious violent acts such as physical harm to the victim. Many stalkers resort to stalking in order to gain control over their victims. Cyber stalking usually occurs with women who are stalked adult predators or pedophiles.
Cyber stalking is also called as ‗cyber teasing‘. Any person who via e-mails or certain messages which are in electronic form, tries to accuse a person or defames his prestige in society is said to be a cyber stalker.28
26 Section 499 of Indian Penal Code, 1860. 27 Dr. Amita verma: Cyber crimes & Law, Central law Publications, First Edition, 2007, P- 248. 28 V. Paranjape: Cyber Crimes & Law, Edn. 2010, Central Law Agency, p-30
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15. Web Defacement:
Website defacement29 is usually the substitution of the original home page of a website with another page by a hacker. Religious and government sites are regularly targeted by hackers in order to display political or religious beliefs. Disturbing images and offensive phrases might be displayed in the process, as well as a signature of sorts, to show who was responsible for the defacement.
Websites are not only defaced for political reasons; many defacers do it just for the thrill. For example, there are online contests in which hackers are awarded points for defacing the largest number of websites in a specified amount of time. Corporations are also targeted more often than other sites on the Internet and they often seek to take measures to protect themselves from defacement or hacking in general.30
Websites represent the image of a company or organization and these are, therefore, especially vulnerable to defacement. Visitors may lose faith in sites that cannot promise security and become wary of performing online transactions. After defacement, sites have to be shut down for repairs, sometimes for an extended period of time, causing expenses and loss of profit.
16. Web Jacking:
Web-jacking is another form of hacking. This term is derived from the term hijacking.31 In web-jacking, the perpetrator forcefully takes control over the website of another with identical motive of deriving ransom
29 In web defacement the original home page of the web is replaced by a pornographic or defamatory page by the hacker. 30 Rohas Nagpal: Cyber Crime and Corporate Liability, First print 2008, published by Walters Kluwer (India) pvt. Ltd. New Delhi, p-173. 31 Advocate, Prashant Mali: Cyber Law & Cyber Crimes, First Edition 2012, p-92.
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to accomplish is monetary or political purposes. This occurs when someone forcefully takes control of a website by cracking the password and then changing it. The actual owner of the website does not have any control over what appears on that website.
17. Salami Attacks:
A salami attack is a series of minor data-security attack that together result in a larger attack. Salami attacks are used for the commission of financial crimes.32 For example, a fraud activity in a bank, where an employee steals a small amount of funds from several accounts, can be considered a Salami Attack. Crimes involving salami attacks are typically difficult to detect and trace. These attacks are used for commission of financial crimes. These key here is to make the alteration so insignificant that in a single case if would go unnoticed. E.g. a bank employee inserts a program into the bank‘s servers that deducts a small amount of money (say Rs. 5) a month) from the account of every customer. No account holder will probably notice this unauthorized debit, but the bank employee ill make a sizable amount of money every month.
This attack is called a ―salami attack‖ because some security specialists claim that it refers to slicing the data thinly, like a salami. Other argues that it means building up a significant object or amount from tiny scraps, like a salami.
18. Denial of Service Attack (DOS):
Denial of Service Attacks (DOS attacks) involves flooding a computer with more requests than it can handle.33 This is an act by a
32 R. P. Kataria and S.K.P. Srinivas: Cyber Crimes, Orient Publishing Company, First Edition 2013, P-228. 33 Advocate, Prashant Mali: Cyber Law & Cyber Crimes, First Edition 2012, p-88.
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criminal who floods the bandwidth of the victim network of fills his email box with spam mail depriving him of the service he is entitled to access or provide Short for denial-of service attack, a type of service attack on a network which is designed to bring the network down to its knees by flooding it with useless traffic.
Many Denial of Service attack such as Ping of Death34 and Teardrop attack,35 exploit limitation in the TCP/IP protocols. For all known DoS attack, there are software fixes that system administrators can install to limit the damage caused by the attack. But, like Virus, new DoS attacks are constantly being dreamed up by hackers. This involves flooding computer resources with more request than it can handle. This causes the resource (e.g. a web server) to crash thereby denying authorized users the service offered by the resource.
Another variation to a typical denial of service attack is known as a Distributed Denial of Service (DDoS) attack wherein the perpetrators are many and are geographically widespread. It is very difficult to control such attacks. The attack is initiated by sending excessive demands to the victim computer, exceeding the limit the victim server can support and making the servers crash. Denial-of-service attacks have had an impressive history in the past and have brought down websites like the Amazon, CNN, Yahoo and eBay.
34 A Ping of Death is type of attack on a computer network that involves sending a malformed or otherwise malicious ping. A ping is normally of 64 bytes in size. Sending a ping which is larger than the maximum IP packet size can crash the target computer. 35. A tear drop attack is a DoS attack where fragmented packets are forged to overlap each other when the receiving host tries to reassemble them.
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19. Privacy Infringement:
Right to privacy is considered as fundamental right in almost all civilized world.36 The availability of information in the cyberspace, for anyone with capability to access, has brought up the issue of criminal infringement of privacy. Increasing use of computers and Internet, people, knowingly or unknowingly store and transmit their personal data, which may be illegally accessed by capable offenders. Under section 72 of the Information Technology Act, 2000, where any person illegally and without consent of the person concerned discloses any electronic book, register, correspondence, information, document or other material to which he got access under any of the provisions of the Act is any rule or regulations made under is liable for breach of confidentiality and privacy.37
20. E-mail related crimes:
E-mail has fast emerged as the world‘s most preferred form of communication. Billions of email messages traverse the globe daily. Like any other form of communication, email is also misused by criminal elements. The ease, speed and relative anonymity of email has made it a powerful tool for criminals. Some of the major email related crimes are as follows: i. E-mail Bombing: Sending numberous or large e-mail messages to one person is considered ―e-mail bombing‖ and would result in destruction of information38. Email bombing refers to sending a large amount of e-mails to the victim resulting in the victim‘s email account (in case of an
36 Mark s. Merkow and James Brietharyst: The E-Privacy Imperative, American Management Association (2002), New York. 37 Shashank Manish: Regulation of Cyber Crime In India, Cri LJ November, 2008- Journal Section, p-307. 38 R. P. Kataria and S.K.P. Srinivas: Cyber Crimes, Orient Publishing Company, First Edition 2013, P-244.
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individual) or servers (in case of a company or an email service provider) crashing. Sending numerous or large email messages to one person is considered ―e-mail bombing.‖Email bombing is characterised by abusers repeatedly sending an email to a particular address at a specific victim site.
ii. E-mail spamming: E-mail spamming is a variant of bombing: it refers to sending email to hundreds or thousands of users. E-mail spamming can be made worse of the recipients reply to the email, causing all the original addresses to receive the reply. iii. E-mail Spoofing
E-mail spoofing is a term used to describe fraudulent email activity in which the sender‘s address and other parts of the email header are altered to appear as though the email originated from a different source.39 It is a technique commonly used for spam email and phishing to hide the origin of an email message. By changing certain properties of the email, such as the Form, Return-Path and Reply-To fields, ill intentioned users can make the email appear to be from someone other than the actual sender. It is often associated with website spoofing which mimic an actual well-known website but are run by other party either with fraudulent intentions or as a means of criticism of the organisation activities.
iv. Sending Malicious Codes through e-mails: E-mails are often the fastest and easiest way to propagate malicious code over the internet. For instance, bug-virus reached millions of computer within 36 hours of its release from Philippines. Hackers often bind Trojans, viruses, worms and other contaminants with e-greeting cards and then e-mail them to unsuspecting
39 R. P. Kataria and S.K.P. Srinivas: Cyber Crimes, Orient Publishing Company, First Edition 2013, P-244.
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persons. Such codes can also be bound with software that appears to be anti- virus patch.
v. Sending threatening e-mails: This is another way of committing a crime for ransom. It is a useful tool for technology savvy criminals thanks to the relative anonymity offered by it.40 With the advance of technology and frequent use of internet, it has become easier for the criminals and gangsters to extract money from the victim by threatening him of his life for any other relative‘s life with the help of e-mail by sending it from any part of the world. Any person having a basic knowledge it any part of the world. Any person having a basic knowledge of computer or the use of internet can easily blackmail a person by threatening him via e-mails.
vi. Defamatory e-mails: E-mails are invariably used to send defamatory libel or slander against the victim in order to compel him to satisfy the lust of the criminal which may be either for money or for satisfying his illegal or unlawful demand or for avenging rivalry. vii. E-mail Frauds:
E-mail fraud may be defined as any fraudulent behavior connected with computerization by which someone intends to gain financial advantage for himself or for another person, thereby causing economic loss to the victim.41 There are many types of computer frauds and e-mail is a cheaper and popular devise for disturbing fraudulent messages to potential victims. With the development of global communication networks and computers, e- mail frauds are increasingly becoming a global phenomenon. viii. Harassment via e-mails:
40 Dr. Amita verma: Cyber crimes & Law, Central law Publications, First Edition, 2007, P- 188. 41 Suri & Chhabra: Cyber crime(2003) p.398.
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Harassment through e-mails is not a new concept. It is very similar to harassing through letters. It has become concern for many people. This form of harassment includes directing obscenities towards other, as well as making derogatory comments based for example of gender, race, religion, nationality, and sexual orientation. This type of Internet crime can take place often in chat rooms, through newsgroup, and even through the sending of hate email to targeted mailing lists.
21. Data Diddling:
Data Diddling is an attack which involver altering raw data just before it is processed by a computer and then changing it back after the processing is completed.42 It involves changing data prior or during input into a computer. In other words, information is changed from the way it should be entered by a person typing in the data, or a virus that changes data, or the programmer of the database or application, or anyone else involved in the process of having information stored in a computer file. The culprit can be anyone involved the process of creating recording, encoding, examining, checking, convening or transmitting data. This kind of an attack involves altering raw data just before it is processed by a computer and then changing it back after the processing is completed. Electricity Boards in India have been victims to data diddling programs inserted when private parties were computerizing their systems.
This is one of the simplest methods of committing a computer- related crime, because it requires almost no computer skills whatsoever. Despite the ease of committing, the cost can be considerable. To deal with this crime, a company must implement policies and internal controls. This
42 R. P. Kataria and S.K.P. Srinivas: Cyber Crimes, Orient Publishing Company, First Edition 2013, P-228.
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may include performing regular audits, sing software with built in features to combat such problems, and supervising employees.
22. Internet Time Theft:
Theft is generally defined as taking away of the property from a person‘s possession without his consent. In terms of cyberspace, theft can be when somebody uses another person‘s internet hours without the consent of the person.43 Section 43(h) of the IT Act, 2000 lays down civil liability for this offence. It reads as, whosoever without the permission of the owner or any other person who is in charge a computer system or computer network, charges the service availed of by a person to the account of another person by tampering with or manipulating any computer- computer systems or network is liable to pay damages not exceeding one crore to the person in office.44
23. Logic Bombs:
A logic bomb is a programming code, inserted surreptitiously or intentionally and which is designed to execute under circumstances such as the lapse of a certain amount of time or the failure of a program user to respond to a program command. Softwares that are inherently malicious, such as viruses and worms, often contain logic bombs that execute a certain payload at the pre-defined time or when some other conditions are met. The logic bomb is similar to other viruses with a difference that it goes off at the will of the person.45 Many viruses attack their hosts systems on specific days, e.g. Friday the 13th and April fool day logic bombs. A logic bomb
43 Dr. Amita verma: Cyber crimes & Law, Central law Publications, First Edition, 2007, P- 246. 44Section 43 of the IT Act, 2000. 45 Dr. Farooq Ahmad: Cyber Law in India, New Era Law publications, 2nd Edition, 2005, p- 387.
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when exploded may be de designed to display or print a spurious message, delete or corrupt data, or have other undesirable effects.
24. Drug Trafficking:
Trafficking may assume different forms, it may be trafficking in drugs, in human beings, arms pseudonyms. Drug traffickers are increasingly taking advantage of the internet to sell their illegal substance through encrypted e-mail and other Internet Technology.46 A racket was busted in Chennai where drugs were being sold under the pseudonym of honey.
25. Computer vandalism:
Vandalism means deliberately destroying or damaging property of another. Thus computer vandalism may include within its purview any kind of physical harm done to the computer of any person. These acts may take the form of the theft of the theft of a computer, some part of a computer or a peripheral attached to the computer or by physically damaging a computer or its peripherals
.
46 R. P. Kataria and S.K.P. Srinivas: Cyber Crimes, Orient Publishing Company, First Edition 2013, P-245.
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MEDICAL PRACTICE VIS-A-VIS MEDICAL NEGLIGENCE
Rajni Nanda*1
Introduction
The purpose of medical practice is to relieve suffering. In order to achieve this purpose, it is important to make a diagnosis, to know how to approach treatment and to design an appropriate scheme of management for each patient2. Although the law enacted by the Central and State Government exist to regulate the medical practice in India, yet there remain a large sphere that is left to the conscience of the doctors to be governed by the moral values, where the limits or prohibition are set not only by fear of law or by censure of the medical counsel but by the good reputation that doctors wish to enjoy in the eyes of their professional colleagues.
Medical practice:
The principal objectives of the medical profession is to render services to humanity3 with full respect for the dignity of profession and man. A medical practice is a profession requires particular level of learning, which impliedly assure a person dealing with him, that he possesses such requisite knowledge, expertise and will profess his skill with reasonable degree of care and caution. It should be taken into consideration that the professional should command the ―Corpus of Knowledge‖ of his profession. Since long the medical is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of
*1 Assistant professor, University Institute of Legal Studies, Punjab University Swami Sarvanand Giri Regional Campus, Hoshiarpur. 2 Hutchson clinical methods edited by Micheal Swash, 21st edition, W.B. Saunders, P.464. 3 ―Text book on forensic medicine and Toxicology‖ Krishan vij, Elsevier Pvt. Ltd. P. 353.
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litigants against doctor for being negligent narrowing down to medical negligence‖.
Negligence: Negligence is the breach of a legal duty to care. Thus, legal duty of a person means the duty the law gives to every person to respect the legal rights of the other.4 The word ‗negligence‘ has a special meaning. It covers acts of both omission and commission. Negligence is actionable both under the civil and criminal laws. But where negligence is the main component of the offence, the proposed negligence has to be proved by the prosecution as culpable or gross and not negligence merely based upon an error of judgment. Therefore, negligence is a type of tort or delict that can be either criminal or civil in nature . Negligence is a breach of duty caused by omission to do something which a reasonable and prudent person guided by those consideration which ordinarily regulates human affairs would do or doing something which a prudent and reasonable person guided by similar consideration would not do.5 Negligence has two meaning in law torts: 1. Negligence as a mode of committing certain torts as, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the mental element. 2. Negligence is considered as a separate tort. It means a conduct that creates a risk of causing damage, rather than a state of mind.
Kinds of Negligence:
Negligence has many manifestations it may be (1) Active negligence; (2) Contributory negligence; (3) Collateral negligence; (4)
4 Syed Akbar v. State of Karnataka, AIR 1979 SC 1843. 5 Definition by Baron alder son.
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Comparative negligence; (5) Concurrent negligence; (6) Gross negligence; (7) Continued negligence; (8) Criminal negligence; (9) Hazardous negligence; (10) Actual and passive negligence; (11) Willful or reckless negligence; or negligence perse.
Negligence Perse: Conduct, whether of action or omission which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in the violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property so constitute. Medical Negligence
Negligence in the context of medical negligence calls for the treatment with a difference. Medical negligence is clearly defined as want of reasonable degree of care and skill or willful negligence on the part of medical practitioner in the treatment of patients with whom a relationship of professional attendance is established so as to lead to bodily injures or as to Loss of life.6 The ingredient of medical negligence is the duty of care. Person who holds himself out ready to give medical advice and treatment impliedly undertake that he is possessed with shill and Knowledge for the purpose.
6 Dr. Nandita Adhikari, ―Law and Medicinel‖ Revised by Dr. Bijoy Chander Mohapatra, Central Law Publications, P. 56.
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In V.N.Whitamore V/s R.N. Rao7
The High Court of Lahore held that, ―If the medical man has employed the ordinary degree of skill current in his profession, he is entitled to his remuneration, though his treatment has failed of its effect‖.
Components of Medical Negligence
Winfield stated that a negligent act comprises of three main components. They are:-
1. Existence of Legal Duty. 2. Breach of legal duty. 3. Damage caused by the Breach. 1. Existence of legal duty:- Whenever a person approaches another trusting him to possess certain skill, or special knowledge on a given problem the second party is under an implied legal duty to exercise due diligence as is expected to act atleast in such a manner as is expected in the ordinary course from his contemporarus. So, it is not that the legal duty can only be contractual and not otherwise. Failure on the part of such a person to do something which was incumbent so, that which would be just and reasonable tantamount to negligence. 2. Breach of legal duty:- There is a certainly a breach of legal duty if the person exercising the skill does something which an ordinary man would not have done or fails to do or that which an ordinary prudent man would have done in a similar situation. The standards are not supposed to be of very high degree or otherwise, but just the relative kind, that is expected from man in the ordinary course of treatment. 3. Damages caused by the breach:- The wrong, the injury occasioned by such negligence is liable to be compensated in terms of money and the
7 AIR 1935 Lah. 247.
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court apply the well stated Principal for determination of the exact Liquidated amount. We must remember that no hard and fast rule can be laid down for universal application. While awarding compensation, the consumer forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principal on moderation. It is for the consumer forum to decide whether the compensation awarded is reasonable, fair and proper according to the facts and circumstances of the case. Civil Negligence:- The question of civil negligence or malpractice arises when a patient or, in event of his death, his relatives, files a suit against a doctor in a civil court for compensation for the injury or death of the patient, as the case may be, due to negligence of the doctor. It may also arises when the doctor bring a civil suit for realization of his professional fees from the patient or his relatives who refuse to pay the same on the ground of malpractice. The basic principal relating to medical negligence is known as the BOLAM rule. This was laid down in the judgment of justice MC Nair in Bolam V/s Friern Hospital Management Committee8 as follows: ―Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man or the top of a clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill...... It is well established Law that it is sufficient
8 (1957) 1 WLR 582.
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if he exercises the ordinary skill of an ordinary competent man exercising that particular act.‖
In Sidaway V. Board of Governors of Bethlem Royal Hospital and the Maudsley Hospital9,
The house of Lords, inter alia held as under:-
― The decision what degree of disclosure of risk is best calculated to assist a particular patient to make a rational choice as to whether or not to undergo a particular treatment must primarily be a matter of clinical judgment.‖
In Dr. Laxman Balkrishana Joshi V/s Dr. Trimbak Bapu Godbole and another 10
― The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment implied undertake that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment a Brech of any of those duties
9 (1985) All ER 643. 10 AIR 1969 SC 1287.
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gives a rights of action for negligence to the patient‖
In Harjot Alhuwalia (Minor) V/sSpring Meadows and another11
― The question of compensation to be awarded in favour of the parents of the minor child for their acute mental agony and lifelong case and attention on the minor child. In court held that parents of the child having hired the services of the hospital, are also the consumers within the meaning of Section 2 (1) (d) (ii) and that they would also be entitled to award of compensation due to negligence of the ops to the complainant.
Criminal Negligence
The question of criminal negligence arises in case of death or serious injury to a patient caused by criminal negligence or undue interference by the doctor in the treatment of a patient. In case of death, a doctor may be prosecuted by the police and charged in a criminal court with having caused the death of his patient. In case of death, a doctor may be prosecuted by the police and charged in a criminal court with having caused the death of his patient by a rash and negligent act not amounting to culpable homicide under section 304-A IPC, if the death was the result of gross negligence, Gross carelessness, gross ignorance or under interference by him in his professional duties. The degree of negligence is so grave as to go beyond the scope of compensation. Such conduct which disregards the life and
11 1997 (1 (1998) CPJ 1 CSC)
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safety of patients deserve punishment. When a doctor violates the penal provisions of Law or complaint case is filed, he is subjected to prosecution by the state.
Dr. Suresh Gupta V/s Government of NCT of Delhi12 it was held as follow :-
― Legal Decision is almost firmly established where a patient dies due to negligent medical treatment by doctors, They can be made liable in civil Law by praying compensation and damages in law of torts and if the degree of negligence is so gross and his act was reckless as to endanger the life of the patient he would also be made criminally liable to offence under Section 304-A IPC. Thus, he cannot held criminally responsible for a patients death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the state‖ .
In Dr. Jacob Mathew, V/s State of Punjab13 adjudicated the decision against Gupta case. They questioned the adjective gross and opined that all negligent acts causing death should be treated as par. Section 304-A IPC was a sword hanging above the doctor, working both in government hospitals and in the private sectors. Since long, this has been made a malady and they were practicing defensive medicines so much that even proper treatment or surgical procedure were being held back with
12 (2004) 6 SCC 422. 13 2005 Cr.L.J. 3710.
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the fear untoward result because of which doctor continued to be sued for no fault of heirs.
The Supreme court in the Jacob Mathew‘s case held that Section 304, 304A of IPC, can be made applicable to the doctors theoretically but they can feel secured in doing usual practice without any fear, apprehension of being victimized on trivial grounds. The hon‘ ble court has gone through the details of the problems faced by medical profession and this landmark judgment will no longer distort the doctor patient relationship and benefits the patient in the long run.
In Martin F.D.‟ Souza v Mohd. Ishaq14 held that:-
―The concern of medical professionals regarding the adjudicatory process that it is to be adopted by the court and the forums in case of alleged medical negligence filed against doctors‖.
Bolitho in india
The Bolitho test has been mentioned in the Indian Supreme court on only two occasions. It was stated in :
In Samira Kohli v Dr. Prabha Manchanda15
Where the court clearly pointed out ―A beginning has been made in Bolitho v City and Hackney and pearce v United bristole health care it was held that the ―real consent‖ concept a evolved in Bolams‖.
The court again clarified :-
14 (2008) 2SCC1. 15 (2009) 3SCC1.
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―The doctor will be liable for negligence in respect of diagnosis and treatment of the body of professional opinion approving his conduct where it has not been established to the court‘s satisfaction that such opinion relied on is reasonable or responsible. If it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the court would be entitled to hold that the body of opinion, is not reasonable or responsible‖.
The Supreme court in
Smt. Savita Garg V/s The Director, National heart institute16 opined
― It is the common experience that when a patient goes to a private clinic, he goes by the reputation of the clinic and with the hope that proper care will be taken by the Hospital authorities. It is not possible for the patient to know that which doctor will treat him‖.
The Court further held,
― Once on allegation is made that the patient was admitted in a particular hospital and evidence is produce to satisfy that he died because of lack of proper care and negligence then the burden lies on the hospital to justify that there was no
16 (2004) 8SCC 56
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negligence on the part of the treating doctors. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence‖
In Malay Ku Ganguly v/s Sukumar Mukherjee17
The court, exhaustively deals with ―Medical Negligence‖ and the ―Standards of care‖ that is required to be exercised by a doctor dealing with the aspect of individual responsibility of a doctor. The court framed certain principles and observed that there cannot be, however , by any doubt or dispute that for establishing medical negligence or deficiency in services.
Conclusion:
After reading the above mentioned case we can now formulate the following points about the law relating to medical negligence in India.
1) Negligence has three essential components-duty , breach and resulting damage . 2) Cases of medical negligence have to be dealt with a difference. It is not the same as occupational negligence simple lack of proof or error of judgment will not amount to professional negligence. 3) Bolam test would be applicable in India also.
17 AIR 2010 SC 1162.
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4) Negligence under civil and criminal law are different . 5) Under Section 304-A of Indian Penal code, the rash or negligent conduct must be gross in nature. 6) To make a medical practitioner liable, it has to be shown that the injury resulted was not likely imminent and that no medical practitioner in his ordinary senses and prudence would have committed that act or omission. 7) A professional may be held liable for negligence on one of the two finding: either he was not possessed of requisite skill which he professed to have possessed , or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standards to be applied for judging, Whether the person charged has been negligent or not , would be that of ordinary of competent person exercising ordinary skill in that profession. It is not possible for every professionals to possess the highest level of expertise or skill in that branch which he is practice. A highly skilled professional may lie possessed of better qualities, But that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
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MILLENNIUM DEVELOPMENT GOALS - GENDER AND
DEVELOPMENT- SOCIO- LEGAL PERSPECTIVES AND THE ROLE OF JUDICIARY
R.V Vishnukumar* Prof. M. Lakshmipathi Raju**
Millennium Development Goals
The goals formulated in 2000 at U.N Millennium summit set to be achieved by 2015 include, (i) freedom from hunger, (ii) Right to Education, (iii) gender equality, (iv) reduction of child mortality, (v) Maternal Health, (vi) combating HIV/AIDS, (vii) Environmental sustainability and (viii) global partnership for development.
The Millennium Development Goals as designed by the summit are universally accepted values and rights. The goals have been set with a view to sustaining overall development by eradicating facets of poverty in different dimensions in the global countries.
The MDGS represent the collective desire of all nations across the globe to provide a better future for the Millions of citizens affected by poverty.
*Assistant Professor in Law, Damodaram Sanjivayya National Law University, Visakahpatnam
**Former Professor in Social Work, S.P.Mahila University , Tirupati, Co-ordinator, Dept.of Sociology, Social Work & HRM; Acharya Nagarjuna University, Guntur; Presently Adjunct Professor in Sociology; Damodaram Sanjivayya National Law University, Visakhapatnam
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What is required is holistic approach to meet MDGS an inclusive, pro-poor and sustainable economic growth – growth with justice, shared growth, equitable social development, management of the environment in a sustainable and pro-poor manner and good governance.
In September 2000, the international community with 147 countries adopted the Millennium declaration, establishing the above goals which are at the heart of global development agenda. India as a member country has commitment for achieving the said goals. While all the countries in the world have committed to attaining the said targets embedded in MDGS by 2015, India, due to its large geographical and socio-economic conditions, could not achieve the desired targets in respect of reduction of poverty, maternal and child mortality, environmental degradation and gender inequality.
Maternal health parameters are not encouraging, as India accounts for the largest number of maternal deaths. The sex ratio of 927 girls under the age of six for every 1000 boys exposes the discrimination that women face even before birth.
India ranks in the bottom ten of an international list on women‘s participation in the economy and fares badly at the highest policy making level, with only eight percent representation of women in the Parliament.
The first country report on MDGA dealt with India‘s achievements, challenges and policies with reference to goals and targets. There was sustained improvement in the lives of the people through implementation of the welfare programmes at the National and State levels. National employment guarantee Act, Right to education Act, Total literacy campaign of the national Literacy Mission, 73rd and 74th constitutional amendment for reservations for women empowerment and National common minimum needs programme, National Health Mission, Total Sanitation Campaign and
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National Food Security Act, 2013 are some of the important programmes launched by the Government of India for achieving MDGS throughout the Country.
The gender bias led to a gap in the literacy rates between Males and Females. The literacy rate of Males and Females in 1991 was 64 and 39 respectively, which later increased to 75 and 54 in 2001 and to 86 and 73 in 2011. The female education was felt needed for attaining equality in education. The policy of the government was to reduce maternal mortality rate by taking care of the pregnant women till lactating period.
It was envisaged by government of India to bring down MMR (per one lakh live births) from 437 in 1991 to 109 at the end of 2015.
Gender inequality– Theoretical Perspectives
It is customary to classify human community on the basis of sex. In no society of the world have women enjoyed absolute equality on par with men. Everywhere they were subjected to inequality, discrimination and exploitation. N.J Smelser points out that males and females are constantly assigned two different social roles. There are two major sociological perspectives, (a) functional perspective, and (b) conflict perspective, relating to sex role differentiation. Talcott Parsons and Robert Bales, two functional sociologists hold that the modern family needs two adults; father assumes the‘ instrumental role‘ which is concerned with job and money; the mother provides the emotional affairs of family. Conflict theorists see gender differences as a reflection of subjugation of one group (Women) by another group, Men) Sexism is unfair discrimination on the basis of sex. Barbara Bovee Polk (1974) has stated that men to maintain power and privilege over women, are practicing sex discrimination.
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The theory of Bio-gender Universal states that biological differentiation deprived woman of life chances as available to man. The theory of gender status Universal divided gender status into public and domestic and closed the opportunities for power and authority for woman. Janet Sheltzman holds that the gender based division of labour confines woman to domestic tasks. Engel says that ―as wealth increased, it gave man important status in the family than woman‖. Capitalists hold that sex inequality in the market is based on sex inequality at home.
According to Oakley, gender roles are culturally rather than biologically determined. Infant Socialization shows how quickly gender expectations become part of our experience; parents treat their infants differently according to their sex. As the child develops more complex, cognitive learning appears. At this point sex role expectations become even more marked (Weitzman 1979). Laver says that boy‘s games better prepare them for leadership. Girl‘s experiences are different because they develop different skills. The identification theory sees children as learning gender- appropriate behaviours by indentifying with their same sex parent. Social learning theory emphasizes the significance of the environment in explaining sex role socialization. Social learning occurs through an ongoing process of reinforcement from the other people. (Frieze et al, 1078). Ann Bakley opines that the housewife role is exclusively allotted to woman; it is economically dependent on Men. Jessie Bernard argues that it is being relegated to the role of the housewife.
There is a shift in policy approach towards woman from welfare equality to ‗anti-poverty‘ as categorized by Buvenic (1983). There are other approaches namely ―efficiency‖ and ―empowerment‖. Buvenic (1986) holds that the primary concern is with in equality. This equity approach provides a framework to improve the status of woman through official legislation. The anti- poverty policy approach to woman focuses mainly on their productive
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role. This requires increased productivity of woman in low income households. The efficiency approach has implications for women not only as reproducers but also as community managers. As workers they are equally capable; As managers they have shown great commitment than men. The empowerment approach acknowledges the importance of women to increase their power and to increase their own self-reliance and internal strength.
Status of Woman in India
From Vedic times, woman enjoyed a great deal of freedom. India has perhaps the longest record of famous women in mythology and history. Women in vedic age enjoyed a very high status. She enjoyed the proprietary rights. After the vedic period, the position of woman deteriorated considerably. The Hindu law giver Manu made woman entirely dependent on man. In Sutra period males were looked upon with preferential treatment. Women were relegated to house-hold duties. During the Mughal period, the seclusion of woman was looked upon as a symbol of respectability. Even Muslims adopted the systems of early marriage and dowry. They were generally polygamous. In the beginning of the British period , the position of woman deteriorated. In 1850 some reforms took place to improve the status of woman. The decline in the woman‘s status was reflected in the custom relating o marriage, religion, property, widowhood, dowry, role in the family. But the spread of English education enabled woman to realize the subordinate position and persuaded them to recognize their legitimate status.
Today women are one of the most powerless sections of Indian society. There is evidence of gender inequalities in all sectors. The rising incidence of crime and violence against woman in the form of rape, dowry deaths, wife-beating and female foeticide are indicative of powerless position of
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woman in family and society. Gender inequality in India stems from three important sources, (i) difference in women and men economic roles and potential power, ii) Cultural traditions restricting movement and autonomy of woman iii) marriage and family practices. Sex ratio in India is in favour of the male population i.e for thousand men 933 women in 2011 census. The adverse sex ratio is due to the preference for male child, discrimination against the female child, female foeticide.
Gender and Development – India‘s Commitment.
The principle of gender equality is enshrined in the Indian Constitution in its preamble, and sections on Fundamental Rights, Fundamental duties and Directive principles. Our development policies, plans and programs have aimed at advancement of Women in different spheres. There is a marked shift in the approach to women‘s issues from ‗welfare‘ to ‗advancement‘ and to empowerment with emphasis on a ‗rights based‘ as well as ‗development-based approach.
The National commission for women was set up by an Act of Parliament in 1990 to safeguard the rights of women. The 73rd and 74th amendments(1993) to the constitution of India provided for reservation of one-third of all seats, in the local village and municipal bodies, for women, paving the way for their participation in decision making at the local levels. Education, training, employment and self employment strategies are playing a more and more crucial role in the emancipation of women. The women‘s movement, by the non-government organizations led to many initiatives for the empowerment of women.
At the international level, India endorsed the Mexico plan of Action(1975), the Nairobi Forward looking strategies(1995), the Beijing Declaration as well as the platform for action(1995) for appropriate follow up. India has also ratified various international human rights
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instruments, notably the convention on the elimination of all forms of discrimination against women, as a mark of its commitment to human rights and the advancement of women. Trafficking of women and children between countries of SAARC region has been recognized as a priority area of action at the SAARC summit at Male in May, 1997.
However, there still exists a gap between the goals enunciated in the constitution and the reality of status of women in India. The report of the committee on the status of women in India, ―Towards equality‖, 1974, and National perspective plan for women 1988-2000 and the Shramashakti Report, 1988, analyzed the reality of the situation of the status women in India.
Gender disparity manifests itself in various forms i.e., 1) declining female ratio in the population in the last few decades , (2) social stereotyping and violence at the domestic and societal levels and (3) discrimination against girl children. Consequently, the access of women in rural areas, in the informal, unorganized sector, to education, health and productive resources is inadequate.
National Policy for Woman
India‘s national policy for the empowerment of women has been drawn up against this background in the aftermath of the Beijing conference. The goal of this policy is to bring about the advancement, development and empowerment of women. This is to be achieved by changing societal attitudes, and elimination of all forms of gender based discrimination, active participation of women in all spheres of life, incorporation of a gender perspective in all policies, plans and programs. Many of the components of the National Policy are already being translated into action.
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Recognizing that women‘s representation in higher decision making bodies is essential to provide voice to women‘s issues and perspectives, government had introduced a bill in parliament to reserve one-third of seats for women in the national parliament and in the state legislative assemblies, over and above the reservation already implemented at the local and municipal levels. Given the imbalances in social development, reservations of seats through democratic consensus building may be the best way of providing this crucial gender perspective to all policies and programs in India.
In the era of human rights, a rights based approach to women‘s concerns, the primary institutional mechanisms available to guarantee and ensure fulfillment of their rights are the courts with public interest litigation, the National Human Rights Commission, and the National Commission for Women.
All laws are being reviewed in order to remove provisions which might discriminate against women. Directions have been issued that the name of the mother should be entered along with that of the father in all school records of the Central Board of Secondary Education and other Central Boards.
One of the major challenges to the human rights of women in India stems from poverty and under-development. Poverty deprives women and men of the right to enjoy basic necessities of life while keeping them in dark about their personal, civil and political rights. The focus is to enhance women‘s empowerment through education, employment and role in decision-making so as to give more meaning and content to their civil, political, economic, social and cultural rights. Education, vocational training and self-employment initiatives, with the active partnership of
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women‘s non-governmental organizations and micro-credit facilities have been strengthened.
Women constitute a disproportionate number of poor, and they assume increasingly agricultural functions for a livelihood; equal access to land and other productive resources for women, including suitable changes in inheritance laws, have been considered necessary. The Hindu Succession Act has already been amended in a way that women‘s right to properties, including land, are protected.
Legislative & Remedial Legal Measures
During British period women were provided with some legislative protections. The prevention of Sati Act of 1829 made the burning or burying alive of widows, culpable homicide punishable with fine or imprisonment. The Widow Remarriage Act was passed in 1856 to render remarriage of Hindu widows valid and to legalize the legitimacy of children. The civil marriage Act, 1872 made marriage a secular ceremony, permitting widow marriage and inter-caste marriage. The Child Marriage Restraint Act, 1929 provides for punishment of a person who contracts a child marriage with imprisonment or fine or with both. The Hindu married woman‘s right to separate residence and Maintenance Act, 1945 provides from maintenance for the wife form her husband by getting herself separated from him under certain circumstances
After Independence, a series of enactments were made for enhancing the status of woman. The Series of liberal and progressive legislations affecting woman were enacted in our country during preceding six decades for enhancing the status of woman encompassing various fields of legislation which can be categorized as constitutional, Penal, remedial, beneficial, welfare and more particularly ‗gender specific‘ legislation
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After Independence women were provided with institutional protections and various legislations are passed to improve the status of woman.
1. Constitution of India, 1950:
The constitution is the ‗mother of all laws‘ in the sense that provisions of all laws have to conform to the provisions of the Constitution of India. In this context the provisions of the constitution relating to woman assume vital importance.
The constitution of India accepts the principle of equality of gender. Article 14 of the constitution assures equality before the law. Article 15 and 16 prohibit any type of discrimination on the grounds of Gender. Article 16(1) guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state. Article 15 (A) (e) intends that one should remove all practices that are derogatory to the dignity of woman. Article 39 (d) provides for equal pay for equal work for Men and Women. Article 42 provides for maternity relief and makes provision for just and humane conditions of work.
The Constitution of India not only guarantees equality to women but also empowers the State to adopt measures to positive discrimination in favour of women. The principle of gender equality is enshrined in the Indian Constitution in its Preamble, Fundamental Duties and Directive Principles. The 73rd and 74th amendments to the Constitution of India provided for reservation of seats (at least 1/3) in the local bodies of Panchayats and Municipalities for women. Another Constitution Amendment (84th Constitution Amendment) reserving 33 per cent in Parliament and State Legislatures is in the pipeline.
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2. Indian Penal Code, 1860 :
Section 304(b) deals about murder of women in connection with demand of dowry. Sections 312 to 318 deal about punishment for causing miscarriage. Section 354 provides punishment for outraging the modesty of any woman, Section. 366 deals about kidnapping for marriage against her will. Section 366-A deals about procurement of minor girls for sexual purpose. Section 376 deals about punishment for rape.
Section 494 protects women from bigamy. Section 497 deals about protection of married women from adultery. Section 498-A of Indian Penal Code deals about subjecting women to cruelty by her husband or relatives and Section. 509 provides punishment for uttering words and gestures or acts intended to insult the modesty of a woman.
3. Code of Criminal Procedure, 1973 :
Under Section. 125, Code of Criminal Procedure, a woman has got right to maintenance.
4. Indian Evidence Act, 1872 :
Sections 113(a), 113(b) and 114(c) provide for presumptions as to abetment of suicide by a married woman within 7 years of marriage, as dowry death of a woman and as to absence of consent of woman for sexual intercourse.
5. Hindu Adoption andMaintenance Act, 1956 :
Section 18-A provides for obligations of husband to maintain his wife. Section 18(2) provides right of wife to live separately and Section. 19 provides for maintenance of widow by her father-in-law.
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6. Hindu Succession Act, 1956 :
Section 14 of the Act provides for property of female Hindu to be her absolute property. Section 23 provides right of female legal heirs in the dwelling house.
7. The Hindu Minority and Guardianship Act, 1956 :
Section 6 of the Act provides for mother as a natural guardian for minors below 5 years.
8. The Hindu Marriage Act, 1955 :
The Hindu Marriage Act, 1955 was passed with the main object of prohibiting polygamy, raising the age of marriage and providing opportunities for wife for seeking divorce; Section
13(2) of the Act provides for wife to present a petition for divorce. Section 13(b) provides equal right for wife for getting divorce by mutual consent. Section 24 of the Act provides for relief for interim maintenance and expenses. Section 25 of the Act provides for right to a wife to seek permanent alimony and maintenance and Section. 26 of the Act provides right to claim custody of children.
9. The Dowry Prohibition Act, 1961 :
Under the provisions of this Act demand of dowry either before marriage, during marriage and or after the marriage is an offence.
10. The Muslim Women (Protection of Right on Divorce) Act, 1986 :
The Act provides for maintenance of women by the relatives after the iddat period.
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11. The Factories Act, 1948 :
The provisions of this Act provides for health, safety, welfare, and working hours for women labourers working in factories.
12. The Equal Remuneration Act, 1976 :
It provides for payment of equal wages to both men and women workers for the same work or work of similar nature. It also prohibits discrimination against women in the matter of recruitment. The equal remuneration Act, 1976 provides for equal pay for equal work.
13. The Employees State Insurance Act, 1948 :
The Employees State Insurance Act, 1948 provides the maternity benefits to insured woman. The Act provides for insurance pension and maternity benefits to women workers.
14. The Maternity Benefit Act, 1961 :
The Maternity Benefit Act, 1961 is made to provide for maternity benefits of working woman It provides for maternity benefit with full wages for women workers.
15. The Medical Termination of Pregnancy Act, 1971 :
The Medical Termination of Pregnancy Act, 1971 legalizes abortion on health grounds. The Act safeguards women from unnecessary and compulsory abortions.
16. The Child Marriage Restraint Act, 1976 :
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The child marriage Restraint Act 1976, has raised the age of marriage of girl to 18 and boy to 21 years. The Act provides safeguards for girls from child marriage.
17. The Immoral Trafficking (Prevention) Act, 1986 :
The Act safeguards women from prostitution.
18. The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994,
The Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994, is made to prohibit the misuse of Pre-natal Diagnostic Techniques by diagnosing of pregnant women and also identification of child in the womb whether it is male or female.
19. The Indecent Representation of Women (Prohibition) Act, 1986 :
The indecent representation of woman (prohibition) Act, 1986 is made to prohibit indecent representation of woman through advertisements, publications and writings, paintings, figures or in any other manner. The Act safeguards women from indecent representation.
20. The Commission of Sati (Prevention) Act, 1992 :
The commission of sati (prevention) Act, 1987 provides for more effective prevention of sati. It safeguards women from Sati.
21. The National Commission for Women Act, 1990 :
The National Commission for woman Act, 1990 was enacted to facilitate the redressal of grievances of woman. The Act provides for a setting up a statutory body namely the National Commission for Women to take up
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remedial measures, and facilitate redressal of grievances and advise the Government on all policy matters relating to women.
22. The Family Courts Act, 1984 :
The family Courts Act, 1984 was enacted to secure speedy settlements of disputes Family Courts have been set up in some states to adjudicate cases relating to maintenance, custody and divorce. The Act provides for setting up a Family Court for in-camera proceedings for women.
The Parivarik Mahila Lok Adalat (PMLA) evolved by the NCW is an alternative justice delivery system which is part of the Lok Adalats (People‘s Courts) for providing speedy justice to women. NCW has been organizing PMLAs since 1995 in association with NGOs to complement the judicial process They function outside the formal legal system and use community pressure and informal social control and mechanisms to punish perpetrators of violence and restore women‘s rights within the family. Cases of domestic violence, rape, child sexual abuse, and harassment are handled.
23. The Tamil Nadu Prohibition of Eve-teasing Act, 1988 :
The Act provides punishment for eve-teasing.
24. The Protection of Women from Domestic Violence Act, 2005 :
The Act provides for punishment for domestic violence committed by husband and his relatives and also provides legal assistance for women suffering from domestic violence. It also provides interim maintenance to women and also for compensation and damages.
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25. Woman‘s reservation bill ? After passing the bill for reservation in legislatures and Parliament, the women get political power also.
Atrocities against women
Violence against woman may be (i) rape, abduction, murder etc; (ii) domestic violence such as dowry-deaths wife battering, sexual abuse, maltreatment of widows and elderly women,
(iii) forcing of female foeticide, eve teasing, sati, harassment for more dowry etc. violence against woman may be physical violence, or psychological combination of both types of violence.
Obstacles to Law
State has enacted and amended many laws to achieve gender equality before law. Inspite of the legislation for woman‘s emancipation, no significant improvement could be made in the status of woman in India for various reasons such as (i) Lack of clarity in aims and objectives of legislation, (2) lack of updating of laws (3) difficulties associated with implementation, (4) Loopholes in laws
There are obstacles of Judicial nature. Significant changes in their status could not be achieved due to (i) conservative interpretation of laws, (ii) individual delays and heavy expenses and (3) executive indifference, Social obstacles such as (1) structural inequalities, (2) persistence of traditional social values, (3) fear of loss of morals. Obstacles from the side of the woman also contributed for their inability for emancipation. Low levels of female literacy, lack of consciousness and lack of women‘s organizations and women‘s trade union movement added to their deterioration of status.
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ROLE OF INDIAN JUDICIARY IN BRINGING ABOUT GENDER EQUALITY.AND EMPOWERMENT OF WOMEN :
In an enactment of an Act and its execution, and to see that it is not infringed or violated, each of the three organs of the state have a specific role to play. Thus after the legislature enacts a law, it is necessary that the executive has to implement it. However often due to the lack of coordination between the executive and its ancillary machinery the laws are not implemented in an effective manner leading to gross violation as in the instance of the provisions relating to Environment Protection.
In a country like India where all rules and Acts exist in the book, the judiciary is the organ of the state whose role at this juncture becomes very crucial by interpreting the provisions of the Act in a judicious manner so as to further the object and purpose of the Act for which it has been enacted by bringing the perpetrators of violation of environment Act to the justice and thus conserve, protect and preserve the environment.
In this article an attempt has been made to examine the role of judiciary and the impact and contribution it has and can promote gender equality by interpreting the provisions of the statute enacted for gender protection and gender equality in an effective and proper way, if necessary by doing away with traditional interpretation and using other techniques of interpretation by adopting a more pro-active role in the matter, because in interpreting statutes, judges necessarily have to play a role because no statute can be exhaustive (and the legislature may not be able to conjure all the situations in all times to come) until an amendment is made to an existing Act to plug a loophole/lacunae in the Act or the Act is repealed and a new Act comes into force.
As Lord Mc Cluskey provided a very beautiful analogy in these words:
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― The law does not have a quality of a railway time table with pre- determined answers to all the situations that human life, man‘s wickedness and the intricacies of commerce can throw up. The law as laid down in code or in a statute or in a thousand eloquently reasoned opinions, is no more capable of providing all the answers than a piano is capable of providing music. The piano needs the pianist and any two pianists, even with the same score, may produce different music‖.
As is known, a plethora of laws are in place with the noble idea of protecting the rights of woman to ensure their all round development in virtually every sphere of life and thus ensuring ‗Gender Equality‘. However, what lacks in India is the implementation of law in right earnest to achieve its desired purpose objective and goal, in the instant case being bringing of gender equality.
It is here that the role of the judiciary comes into play. Credibility of judicial process ultimately depends on the manner of doing administration of justice.
Justice K. Subba Rao explains the function of the judiciary as thus :
It is a balancing wheel of the federation; and keeps equilibrium between fundamental rights and social justice;
So, the moot question is what has been the role of Judiciary? Has it been a mere mechanical ‗machinery‘ implementing the laws of the land for betterment of the woman so as to achieve the immediate target of gender development, which ultimately result in the final goal of Gender Equality.
As can be observed from the judgments (discussed later in the article) rendered by the Judiciary pertaining to various laws enacted, the courts in India have tried to interpret laws for betterment and upliftment of woman,
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Another role of judiciary is the activist role which is popularly known as ―Judicial Activism‘‘. Where there is no specific law for a specific offence in that case judiciary applies its activist power. As our society is dynamic, the need of the society is also dynamic. Because of the rigidity of law or because of the long and time taking procedure of enactments of laws by legislature, it is unable to keep pace with the fast changing society. There is always a gap between the advancement of the society and the legal system prevailing in it. This sometimes causes hardship and injustice to the people.
This is where the role of Judicial activism comes in. How has it played this role of Judicial activism.
The Judiciary has resorted to Judicial activism by using a powerful tool of interpreting law namely purposive interpretation as opposed to mere literal interpretation of the law. By doing so, Judiciary has made immense contribution to strike the balance between discrimination caused to the domestic women or working woman and availing them of justice against such discrimination.
In this article the Supreme Court‘s contribution will be examined through the various landmark judgements delivered by it pertaining to some of the above mentioned enactments made for betterment of woman.
Constitution of India
In Air India vs. Nargesh Meerza the Air India and Indian Airlines Regulation were challenged as violative of Article 14. Regulation 46 provided that an air Hostess was to retire from service upon attaining the age of 35 years or on marriage if it took place within four years of her joining service or on first pregnancy, whichever occurred earlier. Regulation 47 empowered the Managing Director, at a time beyond the age of retirement, upto the age of 45 years, if an Air Hostess was found medically
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fit. The Supreme court struck down the Regulation providing for retirement of the Air Hostess on her first pregnancy, as unconstitutional, void and violative of Article 14.The Court explained that the Regulation did not prohibit marriage after four years of joining service and if an Air Hostess after having fulfilled the first condition became pregnant, there was no reason why pregnancy should stand in the way of her continuing in service. After utilizing her service for four years, to terminate her service if she became pregnant, court said, amounted to compelling the poor Air Hostess, not to have any children. It thus amounted to interfere with and divert the ordinary course of human nature. It was held not only a callous and cruel act but an open insult to Indian Womanhood. Court also said it was not only manifestly unreasonable but also unjust to prevent the Air Hostess to have children. arbitrary but contained the equality of unfairness and exhibited naked despotism and was, therefore, clearly violative of Article 14.
VISAKHA JUDGMENT
India finally enacted its law on prevention of sexual harassment against female employees at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Sexual Harassment Act") has been made effective on April 23, 2013 by way of publication in the Gazette of India.
The statute has been enacted almost 16 years after the Supreme Court of India, in its landmark judgment in Vishaka and others v. State of Rajasthan ("Vishaka Judgement") , laid down guidelines making it mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace, sexual harassment and enforce the right to gender equality of working women. The Supreme Court relied on the Convention on the Elimination of All Forms Discrimination against Women, adopted by the General Assembly of the United Nations, in 1979, which India has both
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signed and ratified. In its judgment, the Supreme Court outlined the Guidelines making it mandatory for employers to provide for sympathetic and non-retributive mechanisms to enforce the right to gender equality of working women. As per the Vishaka Judgment, the Guidelines, until such time a legislative frame work on the subject is drawn-up and enacted, have the effect of law and the Guidelines are to be mandatorily followed by organizations, both in the private and government sector.
The ambit of the Sexual Harassment Act is very wide and is applicable to the organized sector as well as unorganised sector
The definition of 'employee' under the Sexual Harassment Act is fairly wide and covers regular, temporary, ad hoc employees, individuals engaged on daily wage basis, either directly or through an agent, contract labour, co- workers, probationers, trainees, and apprentices, with or without the knowledge of the principal employer, whether for remuneration or not, working on a voluntary basis or otherwise, whether the terms of employment are express or implied.
.AMENDMENTS TO THE INDIAN PENAL CODE
As a result of the growing importance of the issues relating to sexual harassment and protection of female employees in India, a new section was added to the Indian Penal Code, 1860 through the Criminal Law (Amendment) Act, 2013 , which enlists the acts which constitute the offence of sexual harassment and further envisages penalty / punishment for such acts. A man committing an offence under this section is punishable with imprisonment, the term of which may range between 1 - 3 years or with fine or both. Since the amendment criminalizes all acts of sexual harassment,
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employers shall be required to report any offences of sexual harassment to the appropriate authorities.
In C. B. Muthamma v. Union of India (AIR 1979 SC 1868) : 1979 Lab IC 1307, a service rule whereby marriage was a disability for appointment to foreign service was declared unconstitutional by the Supreme Court.
In Chairman, Railway Board v. Chandrima Doss (AIR 2000 SC 988), the Supreme Court awarded compensation of 10 lakhs to an alien woman under Article 21 of Constitution, who has been a victim of rape.
In Government of Andhra Pradesh v. P. B. Vijay Kumar (AIR 1995 SC 1648), the Supreme Court has held that the issue of reservation for women in State services was upheld under Article 15(3) of the Indian Constitution.
Penal Law
In Delhi Domestic Working Women‘s Forum v. Union of India ((1995) 1 SCC 14), the Supreme Court suggested the formulation of a segment for awarding compensation to rape victims at the time of convicting the person found guilty of rape. The Court suggested that the Criminal Injuries Compensation Board or the Court should award compensation to the victims by taking into account, the pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurs as a result of rape.
Constitution & Penal Law
In Bodhisathwa Gowtham v. Subhra Chakaraborty (AIR 1996 SC 622), the Supreme Court observed that rape was not only an offence under the criminal law, but it was a violation of the fundamental right to life and liberty guaranteed by Article 21 of Indian Constitution.
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In India, prostitution is considered as a black spot on the civilized society. Hence the Supreme Court in Vishal jeet v Union of India (1990) 3 S.C.C 318 held that ―Prostitution always remains a running sore in the body of civilization and destroys all moral values. Prostitution is an offence in India under the Provisions of Immoral Traffic (prevention) Act, 1956. Under the Act there are penal provisions for keeping or managing brothel, for procuring women for the sake of prostitution, for soliciting in a public place and for living on the earnings of the prostitution.
Stridhan
In Prathibha Rani v. Suraj Kumar (AIR 1985 SC 628), the Supreme Court upheld women‘s right to the Stridhana.
Law of Torts iv) In Railway Board vs Chandrima Das, it was a case of gang-rape of a Bangladeshi national by the employees of the Indian Railway in a room at Yatriniwas at Howrah station. These employees managed the ‗Yatriniwas‘ the government contended that it could not be held liable under the law of torts as the offence was not committed during the course of official duty. However, Hon‘ble court didn‘t accept this argument and stated that the employees of union of India, who are deputed to run the railways and to manage the establishment, including the Railway station and Yatrinivas are essential components of the government machinery which carries on the commercial activity. If any such employee commits an act of tort, the Union Government of which they are the employees can, subject to other legal requirement being satisfied be held vicariously liable in damages to the person wronged by those employees. The victim was awarded by Supreme Court with a compensation of Rs 10 lakhs for being gang raped in
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Yatriniwas of railway. Since the right is available to non-citizens also, the reach of the right is very wide.
Muslim Personal Law and CRPC
v) Mohd. Ahmed Khan vs. Shah Bano Begum - The judgment of this case created uproar in Muslim Community. A five Judges Bench of the Supreme Court declared that a Muslim husband having sufficient means must provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is entitled to the maintenance even if she refuses to live with Muslim husband because he has contracted another marriage within the limits of four wives allowed to him by Quran. The Bench declared that a Muslim divorced woman who cannot maintain herself is entitled to get maintenance from her former husband till the time she gets remarried. They rejected the plea that maintenance is payable for the iddat period only. Pointing to the aiyats of the Quran, the Judges declared that the Quran imposes an obligation to provide maintenance to the divorced wife. The judges also rejected the contention that deferred Mahr (dower) is a payment on the divorce of a wife and hence such payment under the personal law excludes the payment of any maintenance by the husband in consideration of marriage. They observed that according to Quran, the dower is a consideration and mark of respect for the Muslim woman instead of being a consideration for divorce. The learned judges stated that the religion professed by spouse has no place in the scheme of Section 125 Cr. P.C. which is measure of social justice to prevent vagrancy and destitution. The court held that if there is any conflict between personal law and Section 125 Cr.P.C. then it is clear from the language of the Section that it over-rules the
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personal law. This judgment created a storm and priests of Islam started agitation.
In Mohammed Ahmed Khan v. Shah Bano (AIR 1985 SC 945), the Supreme Court granted equal right of maintenance under Section 125 of Cr. P.C. 1973 to a divorced married woman notwithstanding the personal law. The Supreme Court also held that "large segments of society have been traditionally subjected to unjust treatment, women are one such segment." In Charansingh v. Union of India (1979 Lab IC 633), the Delhi High Court expressed that women are a backward class as compared to men.
Hindu Adoptions and Maintenance Act, 1956
Parliament, by incorporating the requirement of wife‘s consent in the proviso to Section 7 and by conferring independent right upon a female Hindu to adopt a child, has tried to achieve one of the facets of the goal of equality enshrined in the Preamble and reflected in Article 14 read with Article 15 of the Constitution.
The Supreme Court contrasting it with the Hindu law as prevailing before its enactment, in its recent decision of Ghisalal v. Dhapubai , later reported as AIR 2011 SC 644 has declared that it is mandatory for a Hindu male to take consent of his wife, unless she is incapacitated from giving consent, before adopting a child.
The Supreme Court expressed the position of law in the following terms. Section 6 reproduced above enumerates the requisites of a valid adoption. It lays down that no adoption shall be valid unless the person adopting has the capacity as also the right to take in adoption; the person giving in adoption has the capacity to do so; the person adopted is capable of being taken in adoption, and the adoption is made in compliance with the other conditions mentioned in Chapter II. Section 7 lays down that any male Hindu who is of
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sound mind and is not minor has the capacity to take a son or a daughter in adoption. This is subject to the rider enshrined in the proviso which lays down that if the male Hindu has a wife living then he shall not adopt except with the consent of his wife unless she is incapacitated to give the consent by reason of her having completely and finally renounced the world or her having ceased to be a Hindu or she has been declared by a court of competent jurisdiction to be of unsound mind
The Dowry Prohibition Act, 1961 :
In S. Gopal Reddy v State of Andhra Pradesh (1996) 4 S.C.C, 596, the Supreme Court observes: The alarming increase in cases relating to harassment, toture, abetted suicides and dowry deaths of young innocent brides has always sent shock waves to the civilized society but unfortunately evil has continued unabated.
The Dowry prohibition Act, 1961, prescribes penalties for giving and taking dowry, for demanding dowry.
In Shobha Rani v. Madhukar (AIR 1988 SC 121), the Supreme Court held that dowry demand was held enough to amount to cruelty.
Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890
In Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149), the Supreme Court interpreted Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards Act, 1890 in such a way that father and mother get equal status as guardians of a minor.
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The Prenatal Diagnostic Technique (Regulation and Prevention of Measure) Act, 1994 :
1) Cehat and Ors. Vs Union of India (2003) 8 SCC 412 In the light of the alarming decline in sex ratios in the country to the disadvantage of women, this petition was filed seeking directions from the Supreme Court for the implementation of the Pre-Natal Diagnostic Techniques Act which regulates the provision of pre-natal diagnostic technology. In this case the Court took on the unique role of actually monitoring the implementation of the law and issuing several beneficial directives over the course of 3 years during which the case was proceeding in court. This petition put the issue of sex selection and sex selective abortion on the national agenda and as a consequence there have been heightened activities on this issue by government and non-governmental agencies alike.
The learned counsel for the petitioners points out that on 14-2-2003, the Prenatal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 was amended and it is now named as the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act. She submits that very few persons arc aware of the new amendment. According to her submission the said amendment is in conformity with the various directions issued by this Court
Judiciary and the Issues of Interpretation:
It is seen from the above cases that the Judiciary has by interpreting the law in an effective and proper way, in fact diligently and actively, made an impact to the issue in hand.
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As suggested in the preceding paragraph, judiciary can make better impact if necessary by doing away with traditional interpretation and using other techniques of interpretation by adopting a more pro-active role in the matter.
One of the rules of interpretation which courts can use to interpret effectively the issues relating to gender equality, is the rule of purposive construction.
The purposive construction rule is applied to provisions to ensure that the true intent of the statute is given effect to. Where the traditional rule of interpretation i.e the literal construction may lead to absurdity or uncertainty in giving true effect to the purport and object of the Act, the purposive or contextual construction may be preferred to give a more just reasonable and sensible result.
This is particularly in case where the accused tries to interpret the provisions by offering highly technical arguments, and thereby taking advantage of the procedural flaws to escape the liability for its acts, which are hazardous to the environment.
Thus it is the duty of the courts to accept a construction which promotes the object of the legislation and also prevents its possible abuse. Because every law is designed to further the ends of justice and not to frustrate it on mere technicalities.
Though, normally in the scheme of division of powers between the three organs of the State, the role of the court is to only expound law and not to legislate, as has been mentioned in the preceding paragraph the legislature cannot comprehend all the difficulties in the implementation of its intention and spirit of the law and hence the courts have to use the purposive rule of construction to advance the cause of a statute.
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The rule of purposive construction says that in order to find out the legislative intent, it is permissible for the courts to take into account the ostensible purpose and the object and the real legislative intent. Hence a bare mechanical interpretation by the courts would not serve the object and purpose of the statute and the intention of the legislature. This is also called the ‗functional approach‘ by courts.
At the same time, since the courts are giving effect only to the object and purpose of the enactment which is the intention of legislature, by an established rule of construction, namely purposive construction, the courts are also not transgressing their sphere of jurisdiction namely, interpreting the law.
Strategies
With increase in education and employment and greater participation in political life, most of the obstacles standing in the way of implementation of legal provisions could be wiped off. Long-term strategies are needed to breakdown the structures of inequality between genders, classes and nations. Short-term strategies are identified as the necessity to provide ways of responding to current crisis. The empowerment approach acknowledges that their strategies will not be implemented without systematic efforts by women‘s organizations; Women‘s organizations have to use the methods of consciousness raising and popular education. But this empowerment approach remains largely unsupported by National Governments and their agencies, so the women‘s organizations using empowerment approach remain undjudged and reliant on the use of voluntary and unpaid woman‘s time and dependent on the resources of a few international and non- governmental agencies.
Violence against women needs to be addressed as violation of women‘s right to a secure and dignified life. In spite of number of good laws,
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institutions and machineries to deal with the problem, the rising incidence of violence against women is a matter of concern. Greater sensitization of the judiciary and law enforcement machinery, setting up alternative grievance redressal machineries and authorized monitoring institutions and enhancing women‘s capabilities to fight for justice through collective strength appear to be the strategies that need to be adopted. The family courts were established to settle family disputes. In order to combat the practice of demanding dowry, anti-dowry police cells have been set up. The dowry prohibition act has been strengthened making dowry deaths a new and cognizable criminal offence. Pre-natal sex determination tests have been banned to prevent female foeticide.
The impact of terrorism on women is an area of special concern. Terrorism threatens the fundamental rights to life and liberty. Acts of brutal violence against women including rape and molestation, and murder, abduction, and threats of violence instill a climate of fear that disrupt the social fabric and economic life. The impact of terrorism on human rights of women is something that has not received sufficient attention and merits study.
The girl child is a critical area of concern to women‘s advancement. There is world wide recognition that investments made in the first and second decade of a woman‘s life are crucial to break the cycle of deprivation and inequality for adult women. The SAARC region has been a pioneer in recognizing the special circumstances of the girl child and adopting a plan of action for the survival, protection and development of the girl child.
The needs of the girl child, especially in the first decade of life, are different from those of adolescents and adult women is acknowledged. Research at various levels: community, province, national, regional and international, to identify the issues of ‗girl- child perspective‘ and ‗gender perspective‘ should be taken up.
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Gender inequality – The issues of Woman‘s Dependence, oppression exploitation, gender based disparity i.e lower wages for woman, under reporting in labour force, disadvantaged position in health, education; need to be tackled.
National Policy for empowerment of women (2001) reflects the following:
Gender equality enshrined in Indian Constitution in its preamble, fundamental rights, duties and directive principles. Constitution grants equality and positive discrimination in favour of woman. Our laws, policies, plans, programs aimed at women‘s advancement. Shift of emphasis from welfare to development to empowerment. The National Commission for woman set up by an Act of Parliament in 1990 to safeguard womens rights 73rd, 74th amendments (1993) provided reservation of status in local bodies. The National Policy was drawn up after Beijing Conference. The goal of this policy is to bring about advancement and empowerment of woman.
Measures Adopted.
By changing Social attitudes To eliminate gender based discrimination Active participation of woman To incorporate gender perspectives in all policies, plans and programmes (Many Components of National policy already implemented)
Creating an environment for full development of woman to realize their potential
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The dejure and defacto enjoyment of all human rights on equal basis with Men in all spheres Equal access to participation and decision making of women Equal access to women to health care, quality education at all levels; employment, social security Strengthening legal system to eliminate all forms of discrimination Main streamlining gender perspective in development process Elimination of discrimination and all forms of violence Building and strengthening partnership with society, women‘s organizations. Changes in laws to eliminate discrimination to be gender sensitive to women‘s needs. Women to get equal access to and full participation in decision making bodies – legislative, executive, Judiciary To ensure mainstreaming of woman‘s perspectives in development process as participants
Economic Empowerment of women – Poverty Eradication
Poverty eradication programmes to address the needs of woman to offer support measures to enhance their capabilities. To enhance woman‘s access to credit for consumption and production To recognize woman‘s contribution as producers and workers Strategies to be designed to of woman and empower them to meet negative enhance capacity of woman and empower them to meet negative social and economic impacts of globalization process.
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Programmes for training woman in soil conservation, social forest, dairy development horticulture, livestock, poultry, fisheries etc. to be undertaken To give support in terms of labour legislation, social security to participate in various industrial sectors Support services like child care facilities, crèches at work places, homes for the aged and disabled to be expanded. Social Empowerment of woman
Universalize education, eradicate illiteracy, increase enrolment and retention rate of girls, improve quality of education, and facilitate lifelong education. Nutrition and health services, reduction of infant mortality and maternal mortality, quality health care access to safe and effective methods of family planning.
To address the issues of nutrient deficiencies among pregnant and lactating woman Special attention to be given for safe drinking water, sewage disposal, toilet facilities and sanitation especially in rural areas and urban slums. To provide housing for women including single woman, heads of households, working women, students etc. To spread the use of solar energy, bio-gas, smokeless chulas to change the lifestyle of rural woman. To bring about a greater involvement of women in Science and Technology
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Women in difficult circumstances
Special assistance to women in extreme poverty, the disabled, widows, elderly woman, single woman, Migrants, deserted woman, prostitutes etc. Assistance for prevention of violence, sexual harassment at work place, customs like dowry, rehabilitation of victims of violence, trafficking in woman and girls. Strict enforcement of laws against prenatal sex selection, female foeticide, female infanticide, child marriage, child abuse, child prostitution. Media to develop codes of conduct to remove gender stereotypes and promote balanced portrayls of woman and men. Operational Staregies
1. Action Plans
To draw time-bound plans to include following:
Measurable goals to be achieved by 2010 Identification of resources Responsibilities for implementation of action points. To ensure efficient monitoring To introduce gender perspective in budgeting process. Gender Auditing. Institutional Mechanisms:
National and State Councils to be formed in operationalisation of the policy. National and State resource centers on woman to be established for collection, dissemination of information to undertake research work. Women to be helped to organize into self-help groups.
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Availability of resources to implement the policy - financial credit institutions, banks Additional legislative measures to implement the policy Effective implementation of legislation to be promoted Gender Sensitization
To promote societal awareness to gender issues To include gender education, human rights issues in curriculum Use of Mass Media to communicate messages relating to women‘s equality. Panchayat Raj Institutions
The PRIS play crucial role to promote women‘s participation in public life
Partnership with voluntary sector organizations
Voluntary organizations, woman‘s organizations, NGO‘s Trade Unions to revise policies and programmes affecting woman. International Cooperation
The policy will aim at implementation of international obligation/commitments in all sectors on empowerment of woman such as :
Convention of all forms of discrimination against women (CADW) Convention on rights of child (CRC) International Conference on population and development (ICPD) Sharing of expenses, exchange of ideas and technology, networking with institutions and organizations.-
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The Vision
One can think of vision of the future for the emancipation of women; Necessary measures should be initiated for achieving equality between Men and Women in every sphere of human life. Justice Krishna Iyer observed that legal aid to woman through realistic projects with women working in them can be organized; women judges will be multiplied to change the atmosphere of courts; women police will operate all over in cases against woman; Legislators and Judges will have a high density of women; The professions including Journalistic profession and intellectuals in our universities will strive to promote the concept of women‘s equality and strive for its realization; The exploited classes like workers, Harijans, Tribals and tillers will accept the justice of their sister‘s claim to equality and struggle to achieve in the society ; The sate and society, the exploited Manhood and Womanhood will jointly strive to implement the imperatives of independence and constitutional fundamentals of equality. One can hope the day is not far off for the realization of the vision of Justice Krishna Iyer.
REFERENCES:
1. Caroline, O.N Koser (1997), Gender Planning in the Third World – Meeting Practical and Strategic Needs, Summer School in women‘s studies, Hyderabad, Asmita Resource Centre for women‘s studies. 2. Janet Stazman Chafepz (1991), 1 Gender, family and Economy‘s publications, New Delhi.
3. Joan Hobar (1991 Gender, Family, Economy, Sage publications, New Delhi.
4. Narendra K. Singh, Gender inequality – A Theoretical construct in Anita (ed), quest for equality
5. Richard Berthoud and Joan C. Brown with Steven Cooper (1981), factors in the development of U.K Anti-Poverty Policies, 1950-1980 : Hinnemann Educational Books, London.
6. Ronald G. Ehrenberg, Robert S. Smith (1994), Modern Ethnicity in Labour Economics, Theory and Public Policy; Harper Collins College Publishers.
7. Shankar Rao, C.N (2006) Sociology, Principles of Sociology with an introduction to social thought, S. Chand & Company Ltd.
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8. Oreze, Jean and Sen Amartya, 1995: Indian Economic Development and Social Opportunity, Bombay.
9. Majer, C. 1993: Gender Planning and Development : Theory, Practice and Training, London, Routledge
10. Krishna Iyer, V.K (1984) Woman Unbound : A plea for Gender Justice, Society for community organization trust, Madurai.
11. Unathur : Woman and Law : Constitutional rights and continuing inequalities in Alfred de Suiga (ed)
12. Rasher Archarna : Woman and Family Law Reform in India Sage Publications, New Delhi, 1992.
13. B.S Bhargava and K.C Vaidya Position of woman in political institutions in Journal of Rural development Vol II No. 5; 1992
14. Neera Desai and Maithreyi Krishnaraj (1987) Women and Society in India, Ajantha Publication, 1987
15. Urmila Phadnis and Indira Malani (ed); (1978), : Women of World, Illusion and Reality, Vikas Publishing House, 1978. 16. 1. Siddhartha Dash, Women Empowerment in India, Orissa Review, December, 2004, page 56. 17. 2. Reddy G.B., Women and Law in India — Issues and Challenges, AIR 2003 Jour 331. 18. 3. Krushna Chandra Sena, Violence Against Women : A Human Right Violation, AIR 2003 Jour 312. 19. 4. Josli, K. C., Universalisation of Human Rights of Women : Supreme Court Sets The Pace, AIR 2001 Jour 59. 20. 5. Preeti Mishra, Gender Justice : Some Issues, AIR 2001 Jour 149. 21. 6. Bhatt D. K., Human Rights and Status of Women : A Socio-Legal Analysis, AIR 2000 Jour 79. 22. 7. Agarwal B. D., Curing Gender Bias, AIR 2000 Jour 85. 23. 8. National Policy for the Empowerment of Women, 2001, Govt. of India. 24. 9. R. Revathi, Laws Relating to Domestic Violence, 2004, Asia Law House, Hyderabad. 25. 10. S. R. Myeni, Women and Law, 2003, Asia Law House, Hyderabad. 26. 11. Vepa Sarathi, Interpretation of Statutes, 5th Edition, 2010 Eastern Book Company, Lucknow. 27. Avtar Singh, Introduction to the Interpretation of Statutes 3rd Edition 2009 Lexis Nexis Butterworth
CITATIONS: 1.1981 AIR 1829
2. AIR 1997 SUPREME COURT 3011
3. (AIR 1979 SC 1868
4. AIR 2000 SC 988
5. AIR 1995 SC 1648
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6. 1995 1 SCC 14
7. AIR 1996 SC 622
8. 1990 3 S.C.C 318
9. 1985 SC 628
10. 1985 SCR (3) 844.
11. AIR 2011 SC 64
12. 1996 4 S.C.C, 596
13 AIR 1988 SC 121
14 AIR 1999 SC 1149
15 2003 8 SCC 412
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AGE DISCRIMINATION IN PUBLIC EMPLOYMENT IN INDIA
Bikash Baruah*
INTRODUCTION
India is all set to become the largest contributor to the global workforce. As per the last survey of the National Sample Survey Office (NSSO) conducted in 2011-12, India has a total workforce 47.41 crore. When we talk of workforce , it usually means working population of 15-64 years of age. In India, the percentage of working population stands at 52 as on 2013 as per a World Bank data. Now, the biggest problem India is facing at the moment are – 1) inefficient use of workforce, 2) unemployment, 3) underemployment and 4) a huge capable workforce has been forced outside the boundary of suitable public employment due to advancement of age.
Now, if we try to find why and how of this situation, we will see that ‗age‘ has become the biggest stumbling block in the human resource management process in India. If we carefully study the Chapter VIII of the Handbook of the Personnel Officers under the Ministry of Personnel & Training., Govt. of India which has set the framework of maximum age limits for entry into Central Services, we will not find why a certain age has been fixed as the maximum age for a certain category of posts or services and also how it has been decided
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* Bikash Kumar Baruah, B.Sc.(Zoology), PGDM(Personnel & Marketing) L.L.M.(IPR Laws & Cyber Law), Diploma in UN & International Understanding, Advocate, Gauhati High Court
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which means why and how are missing in the context of defining ‗ maximum age ‗ or ‗ upper age‘ properly. Of course, there are age relaxations given to certain categories like SCs & STs, Displaced persons from Bangladesh, Repatriates from Burma & Sri Lanka, Demobilised personnel from Armed Forces and Ex-Service men and so on.
The life expectancy of Indian people stood at 60.4 years for males and 61.8 years for females as per the 2001 Census and it stood at 63 years for males and 66 years for females as per the 2011 Census. The life expectancy of the Indian population is steadily increasing from the year 1931. So, we can say that life expectancy is slowly taking northward route in India. Now-a-days, we see people even at their 80s leading a very healthy and active life. In India, people at 50 years of age remain physically active, mentally alert and socially connected. A person can be put into the ‗old age‘ category only when one surpasses the life expectancy and relies on nursing in performing one or more of his or her day to day activities. The United Nations has agreed that 60+ years may be denoted as ‗old age‘. But the fact that life expectancy beyond 80 has become widespread has shifted definitions of ‗old age‘. Therefore, we can put a person in the range of 40-50 years age into the category of ‗middle aged resource person‘ who can definitely contribute to the development of our society and to our nation.
Public employment generally means employment under department or office under the State or their instrumentalities, including governmental corporations and authorities. Now, keeping a huge resourceful population outside the ambit of public employment due to advancement of age is negatively impacting the socio-economic development of our nation and is contrary to the values and principles enshrined in our Constitution and various international instruments.
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THE PROBLEM OF PUBLIC UNEMPLOYMENT AND AGE:
Although we are adding a huge workforce to the total workforce of the world, still the picture at home is not rosy. A huge chunk of the population is unemployed, underemployed and also a huge potential and capable population has been forced out of the government services due to advancement of age. We will not talk of private sector here because age, qualifications and experiences are revered generally in the said sector. Now, if we concentrate our study on the middle aged potential workforce of 40-50 years of age , we will see a gloomy picture. If we dissect the reason of this gloomy scenario we will find the following –
1) The Central Govt. services have upper age limit for entry into various Central Government services up to 30 years. 2) The State Governments in India have upper age limit for entry into State Government services upto 38 years ( The upper age limit for Government services in West Bengal is 40 years) 3) A huge population with higher qualifications and varied experiences are therefore forced to be outside the realm of suitable public employment due to advancement of age. 4) A huge otherwise physically fit and mentally alert population has to suffer due to unemployment or underemployment which is uncalled for and which is not justified. 5) A population of experienced and qualified persons which could make a big difference in the service to the nation has been barred to join various government services which is against the rule of natural justice and also contrary to basic principles of our Constitution and other international instruments.
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THE MANDATES OF OUR CONSTITUTION
The major Article on public employment in the Constitution of India is Article 16 which envisages Equality of Opportunity in matters of public employment. Article 16 (2) mandates that no citizen shall on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of employment under the State. Article 15(1) also provides that the State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them. The factor of ‗age ‗ has been expressedly put outside the ambit of this Articles and use of the word ‗only‘ in both these Articles has given it a narrower connotation and application. There could be two reasons why makers of our Constitution felt to put the ‗age‘ factor outside the boundary of these Articles. Firstly, the framers of our Constitution might have felt that our manufacturing sector was at the nascent stage of growth after independence and it needed a huge young workforce which cannot be compromised. Secondly, they never expected exponential growth of average life expectancy of the people of India. Thirdly, they never contemplated that ‗age ‗could take the form of a factor in terms of public employment. Finally, they might have thought that the individual department/ office would be in the best position to decide the upper age limit for employment to their respective establishments. But the Constitution of India has prescribed remedies as well. Article 16(3) provides that nothing in this Article shall prevent the Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union Territory, any requirement as to residence within that State or Union Territory prior to such employment or appointment. Also, Article 309 of the Constitution of India provides that acts of appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to
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public services and posts in connection with the affairs of the Union or any State.
CURRENT SITUATION
The average life expectancy of Indian population as per the 2011 Census has grown by 2.5 % over 2001. Though it is a marginal growth but if we calculate it in terms of our population, the impact is enormous. There is a big difference between taking an average of 100 persons and taking average of 1.21 billion people. If we believe the 2011 Census data to be accurate, then also there will be a huge number of persons above the average level. In other words, some million people will still live beyond their 70s and 80s. In its latest report, ILO (International Labour Organization) has said that in the last 2 years unemployment trend is increasing in India. Going by ILO‘s latest estimates, India‘s jobless rate could be 3.8% this year. Unemployment rate in India is showing an increasing trend since 2011 when it was 3.5%. With unemployment, there is another issue of underemployment. With the government discrimination based on age, the employment situation has rather aggravated in India.
INTERNATIONAL INSTRUMENTS AND AGE DISCRIMINATION :
Let us now give an eagle‘s eye on the Convention concerning Discrimination in respect of Employment and Occupation of 1958 (No. 111) , popularly known as C111 which was adopted in Geneva in the 42nd International Labour Conference (ILC) session and entered into force on 15th June, 1960. India signed this instrument on 3rd June, 1960. A list of grounds of discrimination has been provided under Article 1.1.(a) of the said Convention but the list did not include ‗age‘ but provided for possible additions to the list as can be construed from the words of the Article 1.1.(b). Now, will look into one more instrument -Recommendation concerning Older Workers of 1980, popularly known as R162, which was
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adopted in Geneva in the 66th ILC session. The R162 takes its cue from the Employment Policy Recommendation, 1964, Human Resource Development Recommendation, 1975, Invalidity, Old-Age & Survivor‘s Benefits Convention and Recommendation, 1967 and also from the provisions of Article 6, paragraph (3) of the Declaration of Equality of Opportunity and Treatment for Women Workers, adopted by the ILC at its 60th session, 1975. The R162 instrument applies to all workers who are liable to encounter difficulties in employment and occupation due to advancement in age. R162 took note of the fact that C111, 1958 did not include ‗age‘ among the grounds for discrimination, listed therein but provided for possible additions to the list. Since R162 is in the form Recommendations, India being an original member of ILO, has to abide by the provisions enshrined therein. Even Australia has passed an Act known as Age Discrimination Act (2004) which prohibits direct and indirect discrimination on the basis of age on key areas of public life including employment, education, accommodation, provisions of goods, services and facilities, access to premises, selling, other dealings with land, and requests for information. The European Union also has an Anti- Discrimination Law (Charter of Fundamental Rights of the European Union whose Article 21 prohibits all discrimination including age). Canada has Employment Equity Act of 1986. Bolivia has Law against Racism and All Forms of Discrimination of 2010. Hong Kong has Age Discrimination Ordinance. South Africa has Promotion of Equality and Prevention of Unfair Discrimination Act of 2000. United Kingdom has Employment Equality Regulations. Germany has General Equal Treatment Act of 2006. USA has Age Discrimination in Employment Act of 1967 and Age Discrimination Act of 1975.
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RECOMMENDATIONS
1) The posts where high physical tolerance is required, the department/ office concerned must have the discretion to determine the upper age of entering into its various services. 2) The services which require only intellectual ability must open the door to persons upto 50 years of age. 3) The department / office concerned must invite applications from persons upto the age of 50 years for services which require both intellectual and physical rigueur. The ultimate selection and induction will definitely depend upon successful passing of all the requisite tests and training as conducted by the concerned department/ office. 4) The services which require higher intellectual ability as well as knowledge on varied subject areas must give the opportunity to apply to persons upto the age of 50 years. 5) The services which require higher judgmental, conceptual, analytical, discerning and quick decision making abilities, there is no reason why applications from candidates upto the age of 50 years can not be sought. 6) Qualifications and experiences must be taken into account while relaxing age for certain categories of posts. 7) The Department of Personnel & Training of the Central Govt. as well as of the State Govt.s must come out with official notifications/ circulars to respective departments regarding non- discrimination due to age factor in employment to government services. 8) The Central Government and respective State Governments must form committees to find out various positions where it is possible to induct personnel upto the age of 50 years.
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CONCLUSIONS
1) The Convention concerning Discrimination in Respect of Employment and Occupation, 1958 (No.111) must include ‗age‘ among the grounds for discrimination under its Article 1.1.(a). 2) The Constitution of India must protect the legitimate interests of the employable persons upto the age of 50 years. That is to say, the upper age limit for entry into public services must be increased to 50 years. 3) The Parliament of India should enact a law prescribing non- discrimination in public employment on the ground of ‗age‘.
REFERENCES:
Article 16 in the Constitution of India, available from URL: www. http://indiankanoon.org/doc/211089/ The Constitution of India , available from URL : http://admis.hp.nic.in/himpol/Citizen/LawLib/Amendments/CONSTITU TION%20OF%20INDIA/COI.htm#a16 Convention C111- Discrimination (Employment and Occupation) Convention, 1958(No.111), available from URL : www. http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:: P12100_ILO_CODE:C111 Reommendation R162-Older Workers Recommendation, 1980 (No. 162), available from URL : http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:1 2100:P12100_INSTRUMENT_ID:312500:NO Rural Development Statistics , 2011, available from URL : http://www.nird.org.in/Rural%20Development%20Statistics%202011- 12/data/section-1.pdf Demographics of India , available from URL : http://en.wikipedia.org/wiki/Demographics_of_India List of Anti-Discrimination Acts , available from URL : en.wikipedia.org/wiki/List_of_anti-discrimination_acts Population in India, Census 2011 , available from URL: http://www.mapsofindia.com/census2011/population.html List of Indian States by Life Expectancy at Birth, available from URL : en.wikipedia.org/wiki/List_of_Indian_states_by_life_expectancy_at_birt h Census of India-Economic Activity , available from URL : censusindia.gov.in/Census_And_You/economic_activity.aspx
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The Economic Times, available from URL : http://articles.economictimes.indiatimes.com/2014-07- 16/news/51600535_1_national-sample-survey-office-nsso-crore Ministry of Personnel & Training, Govt. of India available from URL: http://persmin.nic.in/DOPT/Publication/HandbookOnPersonnelOfficers/c h-18.pdf Education and Career Forum, available from URL : http://entrance- exam.net/forum/general-discussion/what-maximum-age-limit-central- government-employee-1015804.html
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ISLAMIC LAW OF INHERITANCE WITH SPECIAL REFERENCE TO WOMEN’S RIGHTS
S. Fatima Zahara Jafri*
Introduction
Islam as a new religion had appeared on the globe in the early years of 7th century AD in the historic Arabian city of Makkah, in a dark period of history when nothing but ruin, squalor and desolation remained of what were once great civilizations, when oppression, exploitation and the right of might prevailed, when the rights had ceased to be recognized, when superstitious and hedonic cults were followed at many places and man was still terrified of the forces of nature and gave a very low place to himself in the scheme of creation.1 Shari‟ah (Islamic Law) is an important part of Islam. It is often defined as ‗Islamic law‘ causing one to assume that it consists mostly of criminal rulings and penalties. Shari‟ah or Islamic law is the code of conduct for Muslims and is based on two main sources: the Qur‘an and the Sunn‟ah. The Qur‘an is the main basis of Shari‟ah. It states the principles while Sunn‟ah of the Holy Prophet (pbuh) provides the blue print of how to apply them.2
Islam has provided good deal of rights- social, economic and political, to the Muslim women which not only enhance their social and economic status but, at the same time, ensure dignified co-existence in the society.3 Rights of women have occupied prominent place in the scheme of Islamic affairs from the inception of Islamic message. It is no longer history to state that the Prophet Muhammad (pbuh) upgraded the status of women from what it used
*Research Scholar, Faculty of Law, A.M.U., Aligarh. 1 Syed Khalid Rashid, Muslim Law 1 (Eastern Book Co., Lucknow, 2009). 2 Syed Hamid Mohsin, Islam for You 118 (Salam Centre, Bangalore, 2013). 3 Maulana Wahiduddin Khan, Women in Islamic Shari‟ah 38-39 (The Islamic Centre, New Delhi, 2010).
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to be and made them equal with their male gender throughout the period of his prophethood. These rights, under Islamic law, have been laid down without any ambiguity or question. In fact, there is no aspect of women that is not covered under Islamic law in order for women to be treated fairly, kindly and justly with respect and honour.4 Muslim Law of inheritance forms the most important part of the Islamic Law. The Holy Prophet is reported to have said:
“Learn the laws of inheritance, and teach them to the people; or they are one half of useful knowledge.”
Inheritance is the transfer of legal possession of deceased persons onto their descendants. It is really a very tough job to determine the justified quantity or ratio of assets to be distributed among the dependants and relatives. The Islamic Law of inheritance is based on the combination of Qur‘anic rules regarding inheritance of property and some of the pre-Islamic customs. The Qur‘an did not sweep away the existing pre-Islamic customs of succession, but made a great number of amendments in the same.5
Of the great faiths, Islam has been foremost in assigning to woman a position of economic independence. Since women form a main part of the society and most of their rights were denied in the pre-Islamic periods, Islam has honored them by issuing many laws to protect them and to give them a dignified life, the specific and fixed right of inheritance is one of these laws. In contrast with other religions, Islam has guaranteed a fair right of inheritance to women. It is well known that in the United Kingdom till as late as 1882, when the first Married Women's Property Act was passed by the Parliament, a married woman could hold no property of her own,
4 R. K. Salman & Abdulraheem Nimah Modupe, ―The Economic Rights of Women under Islamic Law: The Obstacles and Challenges in Contemporary Nigeria‖ Vol. 3 Human Rights Review: An International Human Rights Journal 120 (2012). 5 Supra note 1 at 363.
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independently of her husband. Any property that a femme sole (unmarried woman) held in her own right vested automatically in her husband on her marriage. The women of India had to wait until 1956 for a right which Muslim women have always taken for granted. Economic independence of married women is a well established feature of Islamic Law.6
Western scholars object to the Qur‘anic teaching granting males double the share of females. It should be kept in mind that the financial responsibility of maintaining the family rests entirely upon the husband which is a sort of special position. Husbands cannot ask their wives to contribute towards the expenses of the home. Whatever wives earn or possess, is their own over which husbands have no control. As it is the husband's responsibility to provide all the needs for his wife and home, it is not unfair that his share of inheritance should be double. An examination of Islamic Law of inheritance shows that women have not been discriminated under the same. They have been given full rights over the property they inherit. Many modern writers like Sir William Jones, Rumsey, Fitzgerald, Macnaghten, Tyabji, Anderson, etc. have also admired the Islamic Law of inheritance for its excellence.7
Concept of Inheritance in Pre-Islamic Arabia
The position of women in Pre-Islamic Arabia was totally deteriorated. In pre-Islamic times, the Arabs used to be disheartened and annoyed with the birth of girls. Their traditions allowed the father to bury his daughter alive for actual poverty, or for expected poverty, or out of fear of a disgrace she might bring upon them when she grew up. Some pre-Islamic laws gave the father the right to sell his daughter if he wished; while others allowed him to hand her over to another man who would either kill her or own her if the
6 Tahir Mahmood and Saif Mahmood, Muslim Law in India and Abroad 253 (Universal Law Publishing Co., New Delhi, 2012). 7 Supra note 1 at 362-363.
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father killed the other man's daughter.8 Women were usually excluded from inheriting from their families. In fact, she herself was considered as a property to be inherited by her husband‘s heirs on his death. The reason for this has to do with the tribal structure and customs of the pre-Islamic Arabia which had greatest impact on women‘s rights.9 The strength of each tribe depended on the ability of its members to participate in war. This resulted in inheritance being based on the principle of ―comradeship in arms‖. Since men were physically stronger and better fighters, it led to the exclusion from inheritance of women, minors of both the sexes, and invalids, as well as preference to the paternal to the maternal lines.10
If a woman did have the right of inheritance, it was usually among the tribes where there were still traces of an ancient matriarchal culture, which dictated that, the woman remain with her tribe after marriage. In this case, whatever she inherited would stay within the tribe and pass on to her children who belonged to her kin. In other types of marriages, where the woman left her tribe, her rights of inheritance were reduced as much as possible, since her inheritance would fall into the hands of another tribe. In places such as Madina, where marriage by purchase was the rule, position of women was much worse. A woman could not inherit because she herself was a part of her husband‘s estate to be inherited. In fact, when Islam mandated that sisters and daughters were entitled to a share of inheritance, men of Madina protested against the rule.11 This clearly shows the position of women in the days of pre-Islamic Arabia.
8 Yusaf Al-Qaradawi, The Status Of Women In Islam, available at: http://www.iupui.edu/~msaiupui/qaradawistatus.html (Visited on August 25, 2014). 9 Philip Hitti, History of Arabs 27 (McMillan and Co., London, 1961). 10 Hugh kennedy, The Prophet and the Age of Caliphates 18 (Longman Inc., New York, 1986). 11 W. Robertson Smith, Kinship and Marriage in Early Arabia 80-200 (Adam and Charles Black, London, 1903).
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Changes Brought by Islam
During the time of Holy Prophet (pbuh), women themselves were objects of inheritance and they were considered part of the possession of a man. At such a critical juncture of history Islam brought about a revolution in the domain of human thought and outlook towards women and established the right of women to inherit and has distributed the inheritance in a very upright way.12 According to the Islamic law of inheritance, the individual‘s sex, age, or order of birth or marital status does not constitute a barrier to inheritance.13 Islam brought about liberation of women from bondage and gave her equal rights and recognized her individuality as a human being. Islam improved the status of women by instituting rights of inheritance and property ownership. Islam gave the right of inheritance to women centuries ago. Sura‟h Nisa, Sura‟h Baqara‟h and Sura‟h Maida‟h in the Holy Qur‘an deal with the same and it has been mentioned in various verses of these Sura‟h that a woman irrespective of whether she is a wife or a mother or a sister or a daughter, she has the right to inherit, and the same has been fixed by Allah (SWT).14
Before Islam, women all across the globe were deprived of inheritance and were themselves considered property to be inherited by men. Islam gave women the right to inherit property from relatives, which was a revolutionary concept in the seventh century. Whether a woman is a wife, mother, sister or daughter, she receives a certain share of her deceased relative‘s property. This share depends on her degree of relationship to the
12 Anjum Ara, Inheritance Law in Islam and Women, available at: http://www.muslimpersonallaw.co.za/Inheritance%20Law%20in%20Islam%20and%20Wo men.pdf (Visited on August 27, 2014). 13 Ibrahim Abdulrahman Tokhais, Social Justice in Islamic Law 205 (University Microfilms International, Ann Arbor, 1985).
14 Dr. Zakir Naik, Rights of Women in Islam- Modern or Outdated 13 (Adam Publishers and Distributers, New Delhi, 2010).
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deceased and the number of heirs.15 The same scheme of succession applies whether the deceased was a male or a female. Married daughters and other women heirs do get their shares in the properties of the members of their parental family as per the rules of Islamic Law and they are full owners of their respective shares. Female sex is no bar to inherit property. Out of twelve sharers notably eight are women. No woman is excluded from inheritance only on the basis of sex. Women have, like men, right to inherit property independently, not merely to receive maintenance or hold property in lieu of maintenance. Moreover, every woman who inherits some property is, like man, its absolute owner.
Shares of Women under Islamic Law of Inheritance
A woman‘s right of inheritance varies depending on her relation to the deceased person. Rights of inheritance rest upon the two principal grounds of marriage and blood relationship with the deceased.16 In some cases a female in the family inherits less than a male inherits; in some cases, a female might inherit as much as a male; and in other cases, she might inherit more than a male. The following is the list of female sharers along with their portion of share in the inheritance of property of the deceased:17
Wife: A wife inherits 1/4 of her husband‘s property if they had no children and 1/8 of her husband‘s property if they had children or children‘s son. ―However, the wife‘s portion is a collective one. In the case of polygamous union, the wives share the 1/8 or the 1/4 equally‖.18
15 Supra note 2 at 133-134. 16N. J. Coulson, Succession in the Muslim Family 10 (Cambridge University Press, England, 1976). 17 Supra note 1 at 382-384. 18 John L. Esposito, Women in Muslim Family Law 41 (Syracuse University Press, New York, 1982).
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Daughter: A daughter‘s share of the estate differs according to the number of brothers and sisters she has. If the decedent has only one daughter she inherits 1/2 of the estate. If the decedent is survived by the daughter and a son, the son gets 2/3 and the daughter gets 1/3 of the estate. If the decedent is survived by two or more daughters, they share 2/3 of the estate equally and the rest goes to other male relatives.19 Mother: Mother gets 1/6 if the deceased has a son, or a daughter to a son(h.l.s) or has a few siblings (male or female); or 1/3 of the total inheritance value if the deceased has no such heirs as mentioned above; or 1/3 balance if the deceased left behind either a husband or a wife and a father without other heirs.20 Grandmother: A grandmother will not receive any portion of the inheritance as long as there is the mother. The grandmother only receives 1/6 be it one person or more.21 Son‟s Daughter: Son‘s daughter gets 1/2 if one; 2/3 if there are two or more, 1/6 if the daughter is with a female child; gets as a residuary when being with a son to a son or excluded by a son or by two daughters, except when there is a son‘s son who also receives as a residuary.22 Full Sister: Full sister gets 1/2 if there is only one; 2/3 if there are two or more; as a residuary while being with a full brother; as a residuary while being with a daughter or a son‘s daughter or with both; or is excluded by the son or a son‘s son(h.l.s.).23 Consanguine Sister: Consanguine sister gets 1/2 if one; 2/3 if two or more; 1/6 if with a full sister; as a residuary if with a consanguine
19 Supra note 1 at 382. 20 Id. at 383. 21 Ibid. 22 Id. at 382. 23 Supra note 1 at 383.
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brother; as a residuary while with a daughter or a son‘s daughter, or with both; or excluded by a son, a grandson, a father, a full brother, two full sisters (except when there is a half brother) and by a full sister when she is receiving as a residuary.24 Uterine Sister: Uterine sister gets 1/6 if alone; or 1/3 if two or more; or excluded by son, daughter, son‘s daughter, father or grandfather.25
Reason behind Half Share of Certain Females in Inheritance
Another aspect of a woman‘s right which is often held against her by men is allotment of half share to her as compared to her brother‘s share in her deceased parent‘s property. This is due to the variant financial responsibilities of the male towards family and relatives. Looking from the women‘s role in the society even what was designated for them by Islam was not unjust. It was logically commensurate to their financial and economic responsibilities which were far less than the male heirs. Islam places the responsibility of sustenance and maintenance of the family on men. It is for men to maintain the wives, parents and children. It is they who have to pay for their food, clothing, shelter and education and even marriage. So, women are exempted from real life expenses compared to men.26 Moreover, this is noteworthy that according to the Qur'an 12 persons have been declared as determined share-holders in respect of inheritance where only four persons are men and the rest eight are women. This means that Islam has shown its utmost seriousness about ensuring the portion of women, as they had been the most deprived ones before the advent of Islam.
24 Id. at 384. 25 Ibid. 26 Asghar Ali Engineer, “Rights of Women and Muslim Societies‖ Socio-Legal Review 60, available at: http://www1.nls.ac.in/ojs-2.2.3/index.php/slr/article/viewFile/101/83 (Visited on August 28, 2014).
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Islam has determined the share of daughter but did not determine the share of son.
The Qur‘an has tried to compensate her in other ways.27 She was given the right to demand mehr from her husband and unlike the pre-Islamic period, she was entitled to keep the mehr amount or property and not her father. No marriage was valid without mehr being paid to her and Qur‘an said she could demand even a heap of gold. Thus, mehr tended to be a very substantial amount. Before marriage any gift given by the woman's fiancé is her own and her husband has no legal right to claim on it even after marriage. Any income the wife earns through investment or working is entirely her own. Hence, the Qur‘an does give full property rights to women, on par with men, and makes it clear that what she earns is hers and neither her father nor her husband can claim that amount.
Additionally, the Qur‘an makes it obligatory for husband to maintain his wife even if she has the means to maintain herself and has substantial property or income. Even if the wife is rich, she is not required to spend a single penny for household; the full responsibility for her food, clothing, housing, medications and recreation etc. are her husband's. Interestingly, the Ulama defined maintenance during Aurangzeb‘s time (included in Fatawa Alamgiri) as serving her cooked food (there not being any obligation on the woman to cook the food), stitched clothes, an independent house to live in and if husband cannot afford an independent house, an independent room with separate access as well as other necessities for her health and beauty. The concept of maintenance is, therefore, quite comprehensive in Islamic Law. If the husband does not pay the wife‘s maintenance, Shari‟ah entitles her to take a loan in her husband‘s name and the husband will have to pay off the loan. She is also entitled to take the amount due to her from his
27 Ibn Al-Qayyim, I„lam Al-Muwwaqi„in Vol.I 91 (Dar al-Jayl, Beirut, 1973).
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pocket, without his permission, in case he has not paid her maintenance. Hence, when the verses are seen in totality, even if the sister‘s share was half of that of her brother‘s, the man ended up accumulating lesser money on account of the many benefits given to the woman.28
Conclusion
Islam, if we derive its teachings primarily from the Qur‘an, shows that there is a world of difference between Qur‘anic teachings and Muslim practices. Nevertheless many practices, understandably Muslim practices, which were less than fair to women for a variety of reasons, are thought to be Islamic practices; but the fact is that Islam is not necessarily what the Muslims do. It is, therefore, necessary to distinguish between the two and also to understand the reasons for the difference. Islam has raised women‘s status in the society by issuing many laws to protect her and give her an honourable and dignified life. It has been rightly claimed by some scholars that any interpretation of the Qur'an that is discriminatory against women is contradictory to core spirit, general principles and ultimate purposes of Islam.
One of the most important changes that Islam brought in the society was giving women the right of inheritance. A woman‘s share of inheritance might be more, less, or equal to a man‘s share, depending on the case and the number of the survived relatives and their relation to the decedent. In addition, the laws of inheritance in Islam are proportional to the duties of spending. Indeed, a man in Islam has the responsibility of supporting his family, his brother's children (when his brother dies), and his parents (when they retire and do not have an income), his children from his previous marriage (if he has them) and his household, including his wife and
28 Supra note 27 at 61.
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children. A woman, on the other hand, does not bear this responsibility. She has the freedom to use the money she collects from her dowry or work or inheritance, as she pleases.
The beauty or comprehensiveness of Islamic law of inheritance can be understood only if it is read with the law of maintenance, will (wasiyat) and gift (hiba). Hence, the fact is that in Islamic law as a whole, women are much more favoured financially than their male counterparts. Thus, it becomes crystal clear that the inheritance under Islamic Law gives to women quite a respectable share, without rendering upon her financially any family or social responsibilities.
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INTERNATIONAL COURT OF JUSTICE: DECISION COMPLIANCE AS AN IMMEDIATE CONCERN
Prof. Vivek V. Nemane* Ujwal P. Nandekar** Introduction
The International Court of Justice (ICJ) was established and began its role as one of the principal organs of United Nations since 1946.1 ICJ is performing a lead role in terms of imparting International Justice. ICJ entertains contentious cases and advisory proceedings.2 As part of the United Nations system, the ICJ continues to fulfill its role of maintaining peace and security.3 The Court is playing an active role and so far 160 cases are entered in the general list.4 The cases deal with varied topics like use of force, genocide, maritime law, territorial titles, treaty laws, international criminal law, human rights and diplomatic immunity.5
Key Problems related to Compliance
The work of ICJ is laudable but not easy. The court has faced many challenges so far. The important hurdle worth to be mentioned is the
* Faculty, Symbiosis Law School, Pune. Symbiosis International University. ** Research Assistant, Symbiosis Law School, Pune. Symbiosis International University. 1‗History of the International Court of Justice‘ (International Court of Justice) < http://www.icj-cij.org/court/index.php?p1=1&p2=1> accessed 8 April 2014 2 Contentious cases are submitted by the states whereas in case of advisory proceedings, the advisory opinions are requested on the legal questions rose by United Nations organs and specialised agencies. For further information See ‗ICJ-Cases‘ < http://www.icj- cij.org/docket/index.php?p1=3> accessed 8 April 2014 3 Paulson, Colter, ‗Compliance with Final Judgments of the International Court of Justice since 1987‘( 98 Am. J. Int'l. L. 434, 458-459, 2004). See Dana Neacsu, ‗The International Court of Justice Research Guide‘
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Nicaragua case6 in which using its veto in the United Nations Security Council (UNSC), the United States refused to respect the judgement of the ICJ. The case of Nicaragua describes the inefficiency of ICJ in enforcing its decisions due to unavailability of procedures that are available to domestic courts in general. Later United Nations General Assembly (UNGA) requested and urged to comply with the ICJ decisions to maintain legitimacy and quality of the work of ICJ. The rate at which the decisions of ICJ are complied actually determines its success and it will give a direction to the role of ICJ in future. Thus compliance is a challenge for ICJ and successful implementation of the decisions will obviously strengthen its legitimacy. The successful implementation of case decisions will thus isolate the non- cooperative or defiant states.
When actual behaviour of a given subject confirms to the prescribed behaviour it is known as compliance. In case of non-compliance actual behaviour significantly departs from the prescribed one. Regulatory treaties prescribe the reduction in dysfunctional behaviour. Sometimes it is also a result of administrative breakdown.7 One of the major aspects of decision compliance is the fulfilment of legal obligations which are often unclear wherein the conduct of states is intentionally ambiguous. Moreover, concepts such as undue delay, good faith negotiation, and a state's duty in a changing political situation cannot be precisely measured.8 The Charter of the Statute of ICJ talks about the duty of states to comply with the decisions of court.9 The ICJ plays an important role in spreading global norms of
6 Military and Paramilitary Activities in and against Nicaragua (The Republic of Nicaragua v The United States of America, 1986 I.C.J. 14, 1984) 7 Downs G, Rocke D and Barsoom P, ‗Is the Good News about Compliance Good News about Cooperation?‘ International Organisation, Vol. 50, No. 3, pp. 379-406 (1996) 8 Colter Paulson, ‗Compliance with Final Judgments of the International Court of Justice since 1987‘, The American Journal of International Law, Vol. 98, No. 3 (Jul. 2004), pp. 434-461. 9 Article 94(1) of the UN charter provides that member of the United Nations should comply with the decisions of the ICJ in any case to which it is a party
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justice and peace but states have a tendency to consider international institutions as outside forces and they rarely allow such institutions to become significant autonomous actors.10
The question of political action and its connection with the institution comes while assessing the post-adjudication phase which cannot be determined by judicial examination. This is the factual reason behind placing the ‗enforcement provision‘ in the UN charter rather than in the ICJ statute which actually makes UNSC as a competent organ for ensuring compliance with the ICJ decisions.11 The obligation of compliance is not conferred upon any of the state organs but the state represented by its government is responsible for the same. Thus domestic mechanisms play an important role to bring about compliance. The problem comes when an action is required at the provincial level where the Constitution of a particular country does not allow full control to federal or central level authorities. In this case provincial organs are unwilling to respect the obligations due to their insensitiveness to foreign policy issues at broader level.12 The question also arises with respect to the effective compliance by parties of the ICJ proceedings that are non-members to the UN.13 Thus, non compliance with
10 ‗Is the Good News about compliance good news about cooperation?‘
12 Schulte C, ‗Compliance with Decisions of the International Court Of Justice‘ (Oxford: Oxford University Press 2004)
13 As per Article 93(2) of the ICJ Charter, a non-member state can be a party to the ICJ statute where each case has to be determined by the United Nations General Assembly (UNGA) on UNSC‘s recommendation. On the same lines Article 35(2) allows even the states that are not party to its statute
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the obligation mentioned in the ICJ statute constitutes an international wrong.
While addressing the problem of non compliance, there is a need to consider the question of enforcement of decisions under the UN Charter. The UNSC never made the explicit use of its competence under the UN Charter. Previously, the states have brought the issue of non-compliance with ICJ decisions before UNSC. In the Nicaragua case,14 no action was taken. In the Anglo-Iranian Oil Company case,15 the Tehran hostages‘ case16 and the Genocide case,17 although parties filed complaints with the UNSC, they did not follow with the ‗request for meeting‘ proposed by the Council.18 This apparently shows the lack of desire to immediately resolve such a lacuna. These constraints and limits of the UNSC‘s power have caused the compliance gap.19 In case of provisional measures, response by the state parties is required. In the Corfu channel case,20 long period of non- compliance is seen which revealed the limitations of the enforcement system of the ICJ judgements. In fact, political developments made this settlement possible. In the case of diplomatic asylum,21 there was a disagreement on the interpretation of the ICJ judgement. The solution provided by the court
14 1986 I.C.J. 14 15 ICJ Cases: ‗Anglo-Iranian Oil Co.‘ (United Kingdom v Iran, [1952] ICJ Rep 93: ICGJ 188 ICJ 1952) 16 ICJ Cases: ‗United States Diplomatic and Consular Staff in Tehran‘ (United States of America v. Iran, 1980) ICJ GL No 64 (Official Case No) [1980] ICJ Rep: ICGJ 124 (ICJ 1980)
17 ICJ Cases: ‗Case concerning application of the convention on the Prevention & Punishment of the Crime of Genocide‘ (Bosnia and Herzegovina v Serbia and Montenegro, 2007) case 91, International Court of Justice (ICJ) Judgment returned on 26 February 2007 18 Further, UNSC Resolution 1244 of 1999 was adopted 19 Schulte C, ‗Compliance with Decisions of the International Court Of Justice‘ (Oxford: Oxford University Press 2004) 20 ICJ Cases: ‗Corfu Channel‘ (United Kingdom of Great Britain and Northern Ireland v Albania, 1948) I.C.J. Reports 1947-1948, p. 15; General List No. 2 21 ICJ Cases: ‗Haya de la Torre‘ (Colombia v Peru, 1951); Reports 1951, p. 4, 71. In this case, the asylum was granted to the Peruvian national Victor Haya de la Torre in the Colombian embassy in Lima
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was of negotiation among the parties. The case regarding overland routes between Portuguese-occupied enclaves on the Indian subcontinent,22 a rather political goal of Portuguese to regain control over certain territories was reflected.23 After this case it is well known that, few countries also try to invoke frivolous non-compliance complaints just to achieve their political goals.
One of the basic reasons is defiance i.e. deliberate and open refusal to honour the decisions of the court and the refusal of the respondents to participate in any stage of the proceedings. Although after Nicaragua, the cases of non-appearance and defiance did not happen but this should not be construed as a favourable situation. Now it‘s very true that political cost for states that boycott the ICJ proceedings has increased. The absence of the cases of non-appearance is not a guarantee that cases of defiance will never reappear in future. The threat of non-appearance still exists and the means to address such situations are limited. One of the options in such situations would be to avoid cases where a judgement was likely to be resisted24 and instead establish a record of success in cases where the parties would probably live up to their obligation.25
22 ICJ Cases: ‗Right of Passage over Indian Territory‘ (Portugal v. India, 1960) [1960] ICJ Rep 6, ICGJ 174 (ICJ 1960) 23 Schulte C, ‗Compliance with Decisions of the International Court Of Justice‘ (Oxford: Oxford University Press 2004) 24 For e.g. See, ICJ Cases: ‗Military and Paramilitary Activities in and against Nicaragua‘ (The Republic of Nicaragua v The United States of America, 1986 I.C.J. 14, 1984) 25 Colter Paulson, ‗Compliance with Final Judgments of the International Court of Justice since 1987‘, The American Journal of International Law, Vol. 98, No. 3 (Jul., 2004), pp. 434-461.
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Non-compliance and the problem of compulsory jurisdiction
“The Court‟s function is to pronounce itself on matters within its jurisdiction and not to voice personal sentiments or to make comments, general or specific, which, despite their admittedly “feel good” qualities, have no legitimate place in this order.”26
Generally, the ideal situation for compliance is when parties eagerly desire to settle the dispute by showing involvement, commitment and by concluding an agreement to abide by the court orders. The ICJ has a compulsory jurisdiction.27 The authority to deal and intervene directly leads to non-compliance problem since a state feels less obliged to respect the proceedings of the ICJ. The concerned state can withdraw its declaration to be abided by the court orders. The ‗optional clause‘28 can be used to withdraw a declaration by the state in response to any undesired decision by the court.29
Non-compliance and highly political situations
ICJ is not an exception to the international politics; its judgements create a long-term positive and negative impact on the real world politics. The character of a dispute plays an important role as there might be the use of
26 ICJ Cases: Judge Buergenthal in Armed Activities on the Territory of the Congo; (Democratic Republic of Congo v Rwanda, 2002
27 The compulsory jurisdiction is exercised by the Court in advance to deal with a dispute, irrespective of the joint submission of the cases by parties. See 28 ICJ cannot deal with a dispute of its own motion since it‘s not permitted under its Statute and a request must be put forth by one or more states. Thus, the States must consent to the Court‘s considering the dispute in question. A unilateral declaration is one of the methods to manifest the consent according to which the State parties to the Statute of the Court may opt to make a unilateral declaration recognizing the jurisdiction of the Court as binding with respect to any other State also accepting it as binding. This is known as the Optional clause system. For further information, See
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force.30 The political implications of a dispute might prevent ICJ from adjudicating upon the legal questions involved but at the same time it would prevent this international institution from taking a lead role in disputes where the restraint by law is of utmost importance. In the Genocide case, the world community expected that the ICJ alone will restore the peace in case of atrocities in the Balkans.31 In such highly politicised issues, where even international community could not raise much voice, the decisions of ICJ at least serve as having a symbolic value.32 In fact, highly political cases have a high probability of noncompliance but surprisingly, the form of government—democratic or not – is not a significant variable in determining compliance, and the same is true with the UN membership.33 Still, dealing with the cases comprising of highly political dimensions and concepts of national pride is one of the challenges in front of ICJ.34
Subject matter and compliance
The substantive legal topic addressed in a particular case also impacts the prospect of compliance. The cases related to maritime delimitation35 are easily solvable due to their ‗not-so-complicated‘ logics as compared to those relating to the title of the territory.36 Various interests‘ viz. economic, public
30 The term Use of force is necessarily used to connote the nature of specific issues before ICJ in which real world politics is a deciding factor. For e.g. ICJ Cases: ‗Legality of Use of Force‘ (Serbia and Montenegro v Belgium, 2004); [2004] ICJ Rep 279 (Official Citation): ICGJ 33 (ICJ 2004) 31 ICJ Cases: ‗Case concerning application of the convention on the Prevention & Punishment of the Crime of Genocide‘ (Bosnia and Herzegovina v Serbia and Montenegro, 2007) case 91, International Court of Justice (ICJ) Judgment returned on 26 February 2007 32 In general, it may lead to a limited impact 33 Llamzon P. Aloysius, ‗Jurisdiction and Compliance in Recent Decisions of the International Court of Justice in The European Journal of International Law, Vol. 18, No. 5, Pages 815-852, (2008)
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are some of the factors that play a crucial role. The Court is ill equipped for the situations37 where the area of law in question is underdeveloped or not touched upon.38
Compliance and relations between the parties and form of government
Compliance depends on the nature of relationship between the parties. Good relations obviously foster the prospect for compliance. The mutual understanding of the role of law in dispute settlement plays an important role towards positive outcome of the cases. The reverse situation might lead to hostility between the parties. Until now, the liberal democratic countries like United States of America, France and Iceland have played a role of defiant state.39 Democratic structures may positively affect the compliance but with certain risk. With a broad public support, the democratic countries might ignore the evaluations of international law and turn out as less willing countries to comply with ICJ decisions. Thus the assumption of democratic process school40 that promotion of democracy will increase the state‘s compliance rate is not successful in all the cases (Burgstaller, 2005). The involvement of the UN is very limited in enforcing the ICJ decisions. The states are increasingly disinterested in seeking the UN intervention. The ICJ is grappled with the problems of time pressures, ignorance with respect to
37 For example In the Fisheries Jurisdiction case, the court findings were short lived because of the progressive environmental law changes 38 Downs, G.W. and A.W. Trento, ‗Conceptual Issues Surrounding the Compliance Gap‘, In Luck, E.C. and M.W. Doyle (eds.) International Law and Organization, New York: Rowman & Littlefield, pp. 19-40 (2004)
39 Llamzon P. Aloysius, ‗Jurisdiction and Compliance in Recent Decisions of the International Court of Justice in The European Journal of International Law, Vol. 18, No. 5, Pages 815-852, (2008)
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certain specific subject matters and lack of expertise. The progressivism‘s41 prescription of institutional impartiality is applicable to ICJ but this very impartiality was questioned in various cases.42
Recommendations
Proposal for a separate division in Registry
Instead of a judicial tribunal, the Conciliation Commission or an arbiter with ample powers should be appointed specifically to deal with the non- compliance cases. This can be achieved by creating permanent office as one of the sub-divisions in the Registry Office.43 The sub-division will look into cases of non-compliance in assistance with the UNSC.
In order to implement proposed recommendation, the authors of this article suggest the creation of specific jurisdictional criteria for non-compliance. After the pronouncement of judgement, the jurisdictional criteria will ensure that the court has jurisdictional base for the question of non-compliance. The cases in international human rights law are mostly dealt with the pressure put by other states. This mechanism of accepting non-compliance claims by the ICJ will deter the state and make them aware of the importance of complying with the ICJ decisions.
Substantive Rules of exercising jurisdiction
It is very important that the court should come up with certain convincing standards to make sure that the authority of compulsory jurisdiction is not unnecessarily extended. The unnecessary extension of the authority of compulsory jurisdiction informally shows that the ICJ is trying to create and
41 Chapter titled – ‗Institutional Experiments and American Hopes‘ in (Book - The Future of American Progressivism) Beacon Press books, Massachusetts, 1998 42 Schulte C, ‗Compliance with Decisions of the International Court Of Justice‘ (Oxford: Oxford University Press 2004). 43 The Registry is a permanent administrative organ of the ICJ and is accountable only to the court. See,
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enforce its own power which may disturb its legitimacy as a judicial institution. To avoid such situations, the Court should resist from making any substantive comments when there is no competence to pass orders in the absence of jurisdiction.
Increasing Competence
The Court is still ill-equipped with the legal competence on some issues. It has to develop mechanisms on issues such as political questions, the effect of UNSC resolutions and on the determination of law. The already established institution i.e. International Law Commission44 can help ICJ in updating the laws. The International Law Commission members should be regularly consulted and their high calibre should be used towards progressive legal knowledge base at the ICJ.
Strengthening national Courts
There is a need to strengthen ICJ decisions at the domestic courts. The effective observation of ICJ decisions in the municipal and domestic courts will be supportive as national courts form the basis of constitutional order. To effectively address this issue, the international conventions can be used. The example of CEDAW Convention45 appropriately describes the effective application of international law here. Such an effective implementation at domestic courts will strengthen the roots of international law.
Effective UN assistance
There is a need of UN action in this area. An initiative is expected from UN secretary general in this regard to pass a resolution. This resolution will act as a mechanism of via-media between the ICJ and the governments. The UN
44 International Law Commission - Origin and background of the development and codification of international law, See,
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agencies with their active participation can help in increasing the compliance rate. Another urgent requirement is to create appropriate procedural mechanism46. Potential regional settlement mechanisms can also be supplemented and here the association of the ICJ with regional implementation agencies and international organisations will be useful.
Use of Complementary Mechanisms in the Statute
The Court has complementary mechanism which it rarely uses. The President of the court can call to ensure that any order of the court made should result in appropriate effects. Although there won‘t be any miracle by making such calls by a president but it will create awareness about the significance of the matter. The court after the request of either party in a dispute can sanction breach of the provisional measures of the judgement. This gives rise to a duty of state responsibility.
Role of USA
The United States has always enjoyed a reputation for leadership in the struggle against injustice, quest towards human rights and the rule of law. The Obama Government must use its foreign policy tools to strengthen the International Justice Institutions. The initiatives taken by the Obama Administration on cooperation with International Criminal court is praise- worthy.47 If such a cooperation is extended to ICJ, that would be effective in achieving compliance.48
46 For e.g. risk calculations for incidental evidence and burden of proof 47 ‗U.S. Grows More Helpful to International Criminal Court, a Body It First Scorned‘ The New York Times (New York April 3, 2013) 10. http://www.nytimes.com/2013/04/03/world/europe/us-assists-international-criminal-court- but-still-has-no-intention-of-joining-it.html?_r=0 accessed 15 May 2014 48 Sean D. Murphy, ‗The United States and the International Court of Justice: Coping with Antinomies‘, The George Washington University Law School Public Law and Legal Theory Working Paper No. 291, Legal Studies Research Paper No. 291,
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Evaluation of options recommended
The implementation of these options undoubtedly gives rise to new challenges. The ICJ has its own reservations in taking bold steps since it may incur both political and economic costs. The political colour to its stance on enthusiastic interventions may prove too coercive for the transition states. Instances of noncompliance can be cured if the subject matter is sufficiently international and there is ample external political pressure, especially where the presence of a mutually shared interest, a close relationship, or an extant or anticipated military conflict has increased the state‘s need for a definitive solution.49 Considering the domination of countries like USA, France and their veto powers in UNSC, the ICJ must tread its path very carefully by evaluating power relations among the states but at the same time propagating the international law norms in an effective way to achieve peace and justice.
Since its inception, the ICJ has been a part of critics for its ineffectiveness due to various reasons including but not limited to time consuming ICJ proceedings and the extent of ICJ‘s jurisdiction. For better administration of ICJ, we need to lay down strict reforms which will help in resolving immediate intricate problems. The structural & procedural reforms at ICJ in bringing about decision compliance will not be an easy task.50 In the atmosphere of flourishing international courts and tribunals, ICJ, must exercise its overall proficiency to achieve avid objectives of the UN Charter.
49
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References
Burgstaller M (2005), ―Theories of Compliance with International Law‖, Leiden: Martinus Nijhoff Publisher
Downs G, Trento A (2004), ―Conceptual Issues Surrounding the Compliance Gap‖, in Luck E. and Doyle M. (eds), International Law and Organization, USA: Rowman and Littlefield Publishers
Downs G, Rocke D and Barsoom P (1996), ―Is the Good News about Compliance Good News about Cooperation?‖ International Organisation, Vol. 50, No. 3, pp. 379-406.
Schulte C (2004), ―Compliance with Decisions of the International Court Of Justice‖, Oxford: Oxford University Press.
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ROLE OF FAMILY MANAGED BUSINESS IN THE ERA OF GLOBALIZATION
Shreya Bhattacharjee*
1.1 Introduction
The term ―Globalization‖ refers to as the business transaction involving several market players to buy and sell the available goods and services by means of exploring resources so as to satisfy consumers. The social welfare state and the techniques of planning have developed far beyond the stage which Dicey thought was advanced socialism1. It is time that we attempt to take a re-assessment of the functions of law and justice in the vastly changing social pattern. Karl Marx have stated that ―The capitalist is not capitalist because he directs (the work), but he becomes an industrial commander, because he is a capitalist. Industrial command becomes an attribute of capital, as under feudalism the power of command was, in war and in the law, an attribute of ownership of land.”2Since the 1980s the family business was a distinct and important category which had helped a lot in the development of the commerce. Our age has been marked by two main trajectories: globalization and democratization3. By democracy the nation moves towards civic equality amongst all participants. But apparently there arises three types of inequality: power, wealth and knowledge. Business and Society being one of the main institutional framework focuses on the structure of global institutional arrangements4. By means of business the regulatory mechanisms and co-ordinations of the regulations makes the operations in the global market more just. The global economy is a network
*Advocate 1 W. Friedmann, law and social change, (1st Ed., 2010), Pg. 3 2Ibid 3 Fred R. Dallmayr, ―Globalization and Inequality: A Plea for Global Justice‖, www.jstor.com (VIEWED ON 9th December, 2013, 8:44) 4IdilBoran, ―The Circumstances of Global Justice‖, www.jstor.com (VIEWED ON 9TH December,2013, 00:53)
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of international trade and business relations on a global scale. The general idea of a social contract approach to business and society consists of defending a set of rules to regulate the market in a way which might provide a field of competitive environments and also avoid the ―market failure‖. The rationale behind the market failure approach as redefined by Joseph Heath is that, market transactions which has got adversarial structure to the extent that prices are determined competitively.
Globalization has been most commonly discussed in economic terms. But the seven most important trends that have brought about changes in democracy and globalization are that of5: market integration, technological developments, expanding powers of transnational corporations and other non-state institutions of governance, declining policy and regulatory role of the state and many others. Today when we look into a family managed business it is recognized to be the most important and dynamic participants in the present world economy6. In most of the economies of the world, family controlled business carried the weight of economic wealth creation. In the U.S itself family businesses account for 80 to 90 percent of the 18 millionbusiness enterprises and 50 percent of GNP and employment7. On the other side India has got 85 to 90 percent of total corporate entities as family controlled business, contributing 65 percent to GDP and 71 percent to market capitalization8.
5 Michael Goodhart, Democracy, Globalization and the Problem of the State, www.jstor.com (VIEWED ON 5th December, 2013, 15:30) 6Family-owned business, http://www.inc.com/encyclopedia/family-owned-businesses.html (VIEWED ON 24th February, 2014, 17:15) 7 QUAISER RAFIQUE YASSER, CHALLENGE IN CORPORATE GOVERNNACE: A FAMILY CONTROLLED BUSINESS PROSPECTIVE, INTERNATIONAL JOURNAL OF INNOVATION ON MANAGEMENT AND TECHNOLOGY, (Vol. 2, No. 1, February, 2011), http://www.ijimt.org/papers/108-M499.pdf (VIEWED ON 21st February, 2014, 13:43)
8Ibid
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The rapid growth and globalization has shacked the family controlled business for their survival in the long run. When we hear the term ―family controlled business‖ the prime thing that comes to our mind is that the majority of the voting power shares are in the hands of the family members9. Thus the ways by means of which these firms are directed and controlled is crucial. These businesses include all enterprises which are owned, controlled or drastically influenced by a specific or particular family which have a significant dominant position in the firms‘ equity.
The family businesses range from cluster companies, small and medium companies to large scale companies. Some of the well known family business includes: Benetton and FiatGroup in Italy; L‘oreal in France; Samsung and LG group in Korea; Fords Motor Co. and Wal-mart Stores in the U.S; and TATA, Reliance and Birla Group in India are some of the big corporate houses. But some of the vital issues that crop up these family controlled businesses are that of; succession plans, family constitutions, biasness in the board being some of the most common issues10.
The family controlled companies provide an innate synergy between parents; siblings and intergenerational kin in helping and assisting each other run the affairs of business11. There exists the familial bond which potentially lays down the foundation of good business governance and smooth interpersonal communication. There also exists the mutuality of
9Supra Note 9, Pg. 6 10 QUAISER RAFIQUE YASSER, CHALLENGE IN CORPORATE GOVERNNACE: A FAMILY CONTROLLED BUSINESS PROSPECTIVE, INTERNATIONAL JOURNAL OF INNOVATION ON MANAGEMENT AND TECHNOLOGY, (Vol. 2, No. 1, February, 2011), http://www.ijimt.org/papers/108-M499.pdf (VIEWED ON 21st February, 2014, 14:06) 11 CARLO OSI, FAMILY BUSINESS GOVERNANCE AND INDEPENDENT DIRECTORS: THE CHALLENGES FACING AN INDEPENDENT FAMILY BUSINESS BOARD, UNIVERSITY OF PENNYSYLVANIA JOURNAL OF BUSINESS LAW, (Vol. 12:1, January, 2010), https://www.law.upenn.edu/journals/jbl/articles/volume12/issue1/Osi12U.Pa.J.Bus.L.181% 282009%29.pdf (VIEWED ON 21st February, 2014, 15:26)
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interest in the business and trust. The issued faced and interests involved by family-owned business all over the world are more or less in the same trend12.
2.1 Literature Review:
Globalization in the world market has got a drastic changing effect in the role of the independent society. Friedmann W (2008)13has well ventured into the effect of law in the changing society. The book had analyzed the importance of the legal changes in the various fields. It is been seen that the growing mechanization and the centralization of power, both at the government and the corporate level has made a re-examination of the relation between public power and the individual is a matter of urgent necessity.
The strategic entrepreneurship in the family managed business helps in strengthening the viability of the multigenerational family firms. Lumpkin G. T,Steier Lloydet all.14 has expressly stated that strategic enterpreneurship and plays a drastic role in the well functioning of family controlled business in the economy at a large. As it contributes a lot to the strenghtening and understanding of the family firms. Though the literature in this particular article has not given any lacunas that arise from the family
12 Dr. RITU BHATTACHARYYA, Road Blocks in Enhancing Competitiveness in Family- Owned Business in India, CONFERENCE ON GLOBAL COMPETITION & COMPETITIVENESS OF INDIAN CORPORATE 13 W. FRIEDMANN, LAW IN A CHANGING SOCIETY, (2nd Ed., 2008) 14G. T Lumpkin, Lloyd Steier, STRATEGIC ENTREPRENEURSHIP IN FAMILY BUSINESS, http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved=0 CEUQIDAC&url=http%3A%2F%2Fwebcache.googleusercontent.com%2Fsearch%3Fq%3 Dcache%3A42euqI2OaPkJ%3Ahttps%3A%2F%2Fworkspace.imperial.ac.uk%2Fbusiness- school%2FPublic%2Fresearch%2FI_Egroup%2FDongtan%252520docs%2FSEJ_FB_uni% 252520ghent.docx%2B%26cd%3D3%26hl%3Den%26ct%3Dclnk%26gl%3Din&ei=bERU 8G2JoaMrQf74YDIDQ&usg=AFQjCNFMvy9hvKb8bqukRPHOmenJ4zmIiA&bvm=bv.62 286460,d.bmk (VIEWED ON 1st March, 2014, 19:21)
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managed business. As per the researcher it was not an exhaustive piece of work
According to QaiserRafique Yasser (2011)15 the major challenges in this process are: firstly the Board members turns out to be biased which ultimately leads to faulty decision making. Then secondly when the CEO is one of the senior family members it becomes very difficult to relinquish him/her when situation gets worst. There also arises the lack of proper succession plans.
To make the company function systematically, the independent directors play a vital role in the board of directors according to Osi Carlo (2010)16. The author analyses as to the various multifarious challenges that are faced by the independent directors. He has analyzed in details the ways in which the minority shareholders are oppressed by the majority shareholders of the family. For instance the rightful dividend may be withheld, earnings may be siphoned off, and also the exorbitant salaries being paid off to the majority shareholders. Thus it is seen that the article expresses the ways by which the minority shareholders are deprived of their rights and suppressed by the majority shareholders in the family owned business, that is, the family members present in the board.
India has got some very influential families in business (Bhattacharyya Ritu, 2007)17which has made a lot of difference in the business and
15 QAISER RAFIQUE YASSER (2011), CHALLENGES IN CORPORATE GOVERNANCE-A FAMILY CONTROLLED BUSINESS PROSPECTIVE, INTERNATIONAL JOURNAL OF INNOVATION, MANAGEMENT AND TECHNOLOGY, Vol. 2, No. 1, 2011 16 CARLO OSI, FAMILY BUSINESS GOVERNANCE AND INDEPENDENT DIRECTORS: THE CHALLENGES FACING AN INDEPENDENT FAMILY BUSINESS BOARD, UNIVERSITY OF PENNSYLVANIA JOURNAL OF BUSINESS LAW, Vol. 12, 2010 17 Dr. Ritu Bhattacharyya, Road Blocks in Enhancing Competitiveness in Family-Owned Business in India, CONFERENCE ON GLOBAL COMPETITION & COMPETITIVENESS OF INDIAN CORPORATE
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industrial culture of the country. This article has also revealed the various roadblocks that come in the way of success in the family controlled business specifically in India. Majority of the family owned companies act as extended family units. All decision are centralized and taken behind closed doors. Family members cannot hold all positions in the board of directors therefore they keep professionals to handle it all. But these professionals are the toothless tiger with no decision making power. They have no choice but to quietly implement the order passed on to them by the owners. Secondly when close knit family members are involved emotions form a major roadblock in the road of success. There also exists a facet which nobody can deny is that the family has to be first accommodated with jobs. The problem does not arise in hiring incompetent family members but when they demoralize the other employees who are not of the family by overburdening the work load, taking special privileges, make drastic errors and not be reprimanded. There also arises biasness when it comes to distribution of shares in the profit of the company. The speedy change in the economy is not easily accepted in the family controlled business. Remedy is only accepted in the last resort when the business gets affected. This article also mentioned faulty succession plan as the major challenge towards prosperity and success. Not only the succession plan, problem has also arisen when the non-participating members are given share out of respect and for other reasons, which makes no business sense at times, for instance the parents given stock holding and sometimes there interests clash with the business when they try to protect the interest of the family. This article has been spectacular in providing various remedies to the major challenges which settle removes certain roadblocks in the path of success. To resolve the major issues, the article has stated that the drastic mode to get an outsider and creating a good communication network by the CEO with the family and non-family members would remove the roadblocks to a great extent. On summing it up, the researcher points out that it lacks legislative solution
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to the problems which appears to be more concrete and hence further research is required for chalking down certain legislative solutions to the problem.
As perJafferMahomed J. and Sohail Syed Bulent,( 2007)18, the family controlled businesses today are the major contributors towards the growth of the economy and they are facing stiff competition from new market entries. This article portraying the need for Corporate Governance in family controlled business elucidates the ways in which corporate governance can be effective if it is implemented properly. The main problem that appears is that of improper implementation of policies. The most important cause of concern is the conflicting decision within the board members. The author has expressly mentioned two areas in which reforms need to be taken: one being enforceability of legal rights by means of strengthening the integrity of the judiciary and the legal system and the other are macro-economic stability by means of effective regulatory system. But the researcher finds that the author by focusing on the South Asian family as a whole has overlooked into the deeper problems of the Indian family owned business in details.
2.2 Objective:
The basic objective behind this research paper is:
To study the challenges and opportunities before the family business today To suggest some ways to further overcome the challenges and make best use of strengths.
18 MAHOMED J. JAFFER, SYED BULENT SOHAIL ORRS, DIGNAM & CO., ADVOCATES, APRIL 20, 2007, http://www.cipe.org/sites/default/files/publication- docs/042007.pdf (viewed on 24th October, 2013)
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To study the role played by family controlled businesses in improving the economy of the country.
2.3 Research Method:
The research is an ―arm-chair method‖ of research. It is commonly known as ―DOCTRINAL METHOD‖ of research. The doctrinal method of research is concrete and reliable. The various tools that were used in the research work are journals, articles, cases and various database documents.
2.4 Limitation and scope of study:
The data used in this research is confined to the library and the internet information. Further time and money served as the major constrain. The study is primarily focused on the role of family controlled in the globalizing world.
3.1 Role of Family Managed Business in economy
According to Boston‘s Consulting Group analysis it is seen that maximum of the family controlled business has got sales in excess of $1 billion19. In most of the economies of the world, family controlled business carries the weight of economic wealth creation. At one side it is been observed that in U.S.A the rate of family businesses account for 80 to 90 percent of the 18 million business enterprises and 50 percent of GNP and employment20. On the other side India has got 85 to 90 percent of total corporate entities as
19 NICOLAS KACHANER, GEORGE STALK, ALAIN BLOCH, What Can You Learn From Family Business, November, 2012, http://hbr.org/2012/11/what-you-can-learn-from- family-business (VIEWED ON 22nd February, 2014, 21:08) 20 QUAISER RAFIQUE YASSER, CHALLENGE IN CORPORATE GOVERNNACE: A FAMILY CONTROLLED BUSINESS PROSPECTIVE, INTERNATIONAL JOURNAL OF INNOVATION ON MANAGEMENT AND TECHNOLOGY, (Vol. 2, No. 1, February, 2011), Pg. 73, http://www.ijimt.org/papers/108-M499.pdf (VIEWED ON 21st February, 2014, 13:43)
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family controlled business, contributing 65 percent towards GDP and 71 percent to market capitalization21. The rapid growth in the world economy and globalization has drastically affected the long term survival of family controlled business. It is seen that the conventional wisdom which is present in these companies hold the unique ownership structure of family business which is not present in any traditional public firms22. The idea of family manage business is as old as that of the commercial enterprise itself. In India it is estimated that 95 percent of the registered firms are family businesses23. The family managed business has played and still continue to play a central role in the growth and development of the country. The ability to create and foster an entrepreneurial mindset across the generations is the major element of family business continuity and longevity24. These family managed businesses have contributed in numerous ways for the development of the economy of the country. A typical feature of family controlled enterprises is that of the patriarch or head of the family managing the business and places his close relatives in key positions25.
Family and relationship dynamics affect conduct of business significantly to a large extent. Some of the areas are that of26:
21 Ibid 22 NICOLAS KACHANER, GEORGE STALK, ALAIN BLOCH, What Can You Learn From Family Business, November, 2012, http://hbr.org/2012/11/what-you-can-learn-from- family-business (VIEWED ON 22nd February, 2014, 21:08 23http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCsQFj AB&url=http%3A%2F%2Fmesmerizers.files.wordpress.com%2F2012%2F10%2Ffamily- managed-business.doc&ei=xMIIU-fOCsGLrQfznoDQAQ&usg=AFQjCNGbzg2- O7oZY2zg6TEJokP0v2zpzA (VIEWED ON 22nd February, 2014, 21:17) 24 Family and Cultural Factors Impacting Entrepreneurship and Innovation, http://www.inderscience.com/info/ingeneral/cfp.php?id=758 (VIEWED ON 1st March, 2014, 20:24) 25 KSHAMA V KAUSHIK, KAUSHIK DUTTA, CORPORATE GOVERNANCE: MYTH TO REALITY, (1st Ed., March, 2005), Pg. 164 26http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CCsQFj AB&url=http%3A%2F%2Fmesmerizers.files.wordpress.com%2F2012%2F10%2Ffamily- managed-business.doc&ei=xMIIU-fOCsGLrQfznoDQAQ&usg=AFQjCNGbzg2- O7oZY2zg6TEJokP0v2zpzA (VIEWED ON 22nd February, 2014, 21:17)
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The family managed businesses have forever kept the spirit of enterprise alive just because of its spirit of entrepreneurship. Today, when India is competing in the global economy these families managed businesses plays the vital role in turning the engines of growth. As entrepreneurship links vision, commitment, passion and people to the common cause. The family owned businesses have got a significant role to play in giving back to the community vide philanthropy. On closely scrutinizing it can be seen that the various philanthropic efforts that has been made in education, environment, health, heritage conservation and culture. Another important thing that has been observed is that the trust acts as the source of significant competitive advantage to the family business. Thus lowering the transaction cost, bureaucracy, and corruption. The family businesses are small, nimble and tend to react both to threats as well as opportunities. As there exists only few decision making gates and constituencies to deal with the issues. Amongst all the points, one of the most vital strengths of family businesses is that of the ability to draw up plans by focusing on the creation of long-term values. The smarter family managed business has got an advantage to create long-term strategies, which might not be beneficial in the short run but it poses a positive result in the long run. It is been observed that the family managed businesses has outperformed with regards to the industry-peers as compared to the non-family businesses27. The system of family business provide for an unusual
27 ROBERT KLEIMAN, EILEEN PEACOCK, Family Businesses as an Economic Phenomenon, MICHIGAN FAMILY REVIEW (Vol. 2, Issue 2),
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phenomenon which provides with overlapping of the family issues and business issues. Most importantly it provides with flexibility, prestige, community pride and creativity28. These businesses have got a typical set of shared tradition and values that is rooted in the firm itself. In the market economies where resources are allocated via supply and demand, the entrepreneurial families businesses constitute the primary source of job creation. On the other side in the transition economies the family business is the only intact socio-economic institution capable of supporting entrepreneurial and innovative activities29. An estimated 85% of businesses in the European Union, 90% of U.S. businesses and the majority of new private small and medium-sized enterprises in emerging markets (Eastern Europe, Asia, South America, and Africa) are family controlled30.
3.2 Family Business as training ground
When it comes to family controlled business it is the training ground for the new generations in the family. From the very beginning itself the next generation is been trained about the basic things of business, like that of, meeting the customers, checking in the accounts, personally going to the market to check the demand-supply ratio so as in order to meet the demands of the people. When the next generation is introduced to these things then it becomes easy for them to take appropriate steps when they step into the shoes of the executive at the appropriate time. This does not happen in the case of non-family business. It is true that professionals are hired but it takes
http://quod.lib.umich.edu/m/mfr/4919087.0002.208/--family-businesses-as-economic- phenomenon?rgn=main;view=fulltext (VIEWED ON 23rd February, 2014, 21:05)
28 Ibid
29 Family and Cultural Factors Impacting Entrepreneurship and Innovation, http://www.inderscience.com/info/ingeneral/cfp.php?id=758 (VIEWED ON 1st March, 2014, 20:31)
30Ibid
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time for a person to learn about the total procedure of functioning in the company, as the system varies from one company to another. But in the case of family controlled business it does not pose a problem for them to grasp the functioning of the company.
3.3 Challenges before family controlled business
To manage a company well it is necessary for a company to follow a proper code of conduct. The major challenges in this process are: firstly the Board members turn out to be biased which ultimately leads to faulty decision making. Then secondly when the CEO is one of the senior family members it becomes very difficult to relinquish him/her when situation gets worst31. Apart from having various advantages of having family controlled business there also exists the flip side to it. The various disadvantages faced by family controlled business are that of; firstly due to the existence of close knit kins in the family there exists the oppression of the minority shareholders in the business by the majority shareholders (usually the family members), secondly, rightful dividend is been held and corporate earnings are siphoned off, thirdly, these businesses create opportunities for ―freeze- out‖ or ―squeeze-out‖ in order to drive out the minority shareholders out of business32.
There also arises the lack of proper succession plans. The author on expressing the lacunas has also evidenced that these family-controlled
31 QAISER RAFIQUE YASSER (2011), CHALLENGES IN CORPORATE GOVERNANCE-A FAMILY CONTROLLED BUSINESS PROSPECTIVE, INTERNATIONAL JOURNAL OF INNOVATION, MANAGEMENT AND TECHNOLOGY, Vol. 2, No. 1, 2011
32 CARLO OSI, FAMILY BUSINESS GOVERNANCE AND INDEPENDENT DIRECTORS: THE CHALLENGES FACING AN INDEPENDENT FAMILY BUSINESS BOARD, UNIVERSITY OF PENNYSYLVANIA JOURNAL OF BUSINESS LAW, (Vol. 12:1, January, 2010), https://www.law.upenn.edu/journals/jbl/articles/volume12/issue1/Osi12U.Pa.J.Bus.L.181% 282009%29.pdf (VIEWED ON 21st February, 2014, 15:45)
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business suffers from faulty internal control formation and lack of proper family constitutional documentation33. There also appears to be various multifarious challenges that are faced by the independent directors. He has analyzed in details the ways in which the minority shareholders are oppressed by the majority shareholders of the family. For instance the rightful dividend may be withheld, earnings may be siphoned off, and also the exorbitant salaries being paid off to the majority shareholders34. Thus it is seen that the article expresses the ways by which the minority shareholders are deprived of their rights and suppressed by the majority shareholders in the family owned business, that is, the family members present in the board. It has been observed that the governance of family firms is much more harsh and complex than that of other non-family firms35.
The main problem that appears is that of improper implementation of policies. The most important cause of concern is the conflicting decision within the board members. The author has expressly mentioned two areas in which reforms need to be taken36: one being enforceability of legal rights by means of strengthening the integrity of the judiciary and the legal system and the other are macro-economic stability by means of effective regulatory system. Corporate governance serves as a perfect blend for the internal and external corporate governance mechanism. Good corporate governance elucidates and strengthens the activities of family controlled firm while
33Ibid
34 Supra Note 32, Pg. 72 35 QUAISER RAFIQUE YASSER, CHALLENGE IN CORPORATE GOVERNNACE: A FAMILY CONTROLLED BUSINESS PROSPECTIVE, INTERNATIONAL JOURNAL OF INNOVATION ON MANAGEMENT AND TECHNOLOGY, (Vol. 2, No. 1, February, 2011), http://www.ijimt.org/papers/108-M499.pdf (VIEWED ON 21st February, 2014, 14:06)
36 MAHOMED J. JAFFER, SYED BULENT SOHAIL ORRS, DIGNAM & CO., ADVOCATES, APRIL 20, 2007, http://www.cipe.org/sites/default/files/publication- docs/042007.pdf (viewed on 24th October, 2013)
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improving its competitiveness. In conducting corporate governance three things are vital: transparency, accountability and reliability. If these three things are present it makes perfect corporate governance.
In India this holds even more truth than in other places37, as we see the various companies starting from steel companies to telecom, majority of them are family owned business ―….. Family run businesses currently account for a whopping 95% of all Indian companies‖. The article comes up with the statistical proportion of the family owned business in India and throws light on the various big entities in India which are totally family owned business. In addition to the middle sized and small businesses the big family traded are even family run. About 30 of the top companies listed under Bombay Stock Exchange are controlled by family38. The reason behind such large number of family owned business in India is nothing else but the rich family bonding in India arising out of socio-cultural environment39. The family run business has got diverse role to play in India‘s history. It initially started in the 1980s as a means to promote import substitution and attainment of economic freedom from the British. The idea of Indian family-run business has always been respected, protected and revered in India.
Another major challenge is with regards to handling of succession issues in family controlled business. Conflict rises between the biological child and
37 FAMILY RESEARCH EPORT, December 10, 2009, http://lindsayleaver.blogspot.in/2009/12/family-research-report.html (VIEWED ON 10th January, 2014, 13:15)
38 Ibid 39 See similarly, the close-knit structure of families, which fosters teamwork combined with respect to family values and family elders, has been the key to success of many family businesses, www.scribd.com (VIEWED ON 4th January, 2014, 15:55)
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the step-child as to who should possess the power in the board40. By adopting strategic policies, it helps overcome the succession issues. For instance; by appointment of joint successors and dividing the business into two separate empires, by appointing neither of the children as CEO and giving them the role of management under the neutral chief executive41.
It has also been observed that every family business has got his battle over the growth by assuming that the children‘s or the close knit kin‘s are trusted much more and the best one‘s to take charge of the business. Thus it can be analyzed that this is one of root cause towards implementation of transparency in the board42. In this piece of study the author has expressed a factual situation when it comes to the jewellery business, the pressure of working with high-value products that can be easily stolen if much of outsider is involved in the company, so it is advantageous for such companies to have a close-knit board of directors from the family. It has also stated that bringing more of professional management into the board seems to challenge the family-lifestyle.
40 LYNNE BUTLER, The Globe and Mail, http://www.the globeandmail.com/report-on- business/small-business/sb-managing/succession-planning/step-children-add-complexity- to-family-firms/article1241274/, (VIEWED ON 4th February, 2014, 14:15)
41Ibid
42 JACOLINE LOEWEN, The Globe and Mail, http://www.theglobeandmail.com/report- on-business/small-business/sb-managing/succession-planning/family-firms-tend-to-reject- outsiders/article588415/, (VIEWED ON 4th February, 2014, 13:20)
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Figure 143
In the aforesaid figure it depicts the means by which the various problems that crop up in the way of family controlled business can be eradicated by imposing certain techniques. As in the family controlled business ownership and control over the business is a big issue. Hence it is advisable that the ownership and control in the family control be kept separate and secluded in order to overcome the various challenges in the long run.
43https://www.google.co.in/search?q=corporate+governance+in+family+controlled+busines s+diagram&tbm=isch&imgil=4qXKuq_GAwqF0M%253A%253Bhttps%253A%252F%25 2Fencrypted- tbn2.gstatic.com%252Fimages%253Fq%253Dtbn%253AANd9GcTYYlcMFq6DFul9oGM HXVQAUstojbJ0F4GOQwhG1yZvbXFJ2DoRPg%253B416%253B302%253BDO82YRH 3EOE6mM%253Bhttp%25253A%25252F%25252Fhbswk.hbs.edu%25252Fitem%25252F 2469.html&source=iu&usg=__OxVoRiNXX0i9XEN8XU7av- QCiMI%3D&sa=X&ei=XX0VU4ajGYOrrAeRqYG4CQ&ved=0CCgQ9QEwAA&biw=13 66&bih=638#facrc=_&imgdii=_&imgrc=4qXKuq_GAwqF0M%253A%3BDO82YRH3EO E6mM%3Bhttp%253A%252F%252Fhbswk.hbs.edu%252Fimages%252Fchart_2469_figur e2.gif%3Bhttp%253A%252F%252Fhbswk.hbs.edu%252Fitem%252F2469.html%3B416% 3B302 (VIEWED ON 2nd March, 2014, 14:55)
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4.1 Conclusion:
In today‘s society the companies form a predominant unit in the society. A corporate body is by the law equated to a physical individual but is not an individual. The basic characterization of the corporate body as a living organism is a symbolic gesture, even where it is not simply a disguise for the legitimation of omnipotence of the state over the individual44. The family managed business is one of the most appropriate ways in the emerging trends in the economy by its unique entrepreneurship spirit and innovation. In family managed business the strategic entrepreneurship has shown the rate of success. The development of strategic entrepreneurship overlapped with the family managed business has emerged rapidly for the wealth creation and economic strength45. The companies are considered to be the microcosms of the country and the society they operate in46. It is considered as the collective institution comprising of people, with diverse interests but having a common objective of development in the society.
The strategic entrepreneurship process is strongly influenced by the contextual factors that have a unique trend in family firms. It is true that on one hand the skills and capabilities that any individual might bring to an entrepreneurial venture are not likely to differ on whether it is a family business or non-family business, but on the other hand the background experiences and prior knowledge of individuals who have grown up in a family business or worked for a family business or been the prior owner of
nd 44 W. FRIEDMANN, LAW IN A CHANGING SOCIETY, (2 Ed., 2008), Pg. 207 45http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved= 0CEUQIDAC&url=http%3A%2F%2Fwebcache.googleusercontent.com%2Fsearch%3Fq% 3Dcache%3A42euqI2OaPkJ%3Ahttps%3A%2F%2Fworkspace.imperial.ac.uk%2Fbusiness - school%2FPublic%2Fresearch%2FI_Egroup%2FDongtan%252520docs%2FSEJ_FB_uni% 252520ghent.docx%2B%26cd%3D3%26hl%3Den%26ct%3Dclnk%26gl%3Din&ei=b- ERU8G2JoaMrQf74YDIDQ&usg=AFQjCNFMvy9hvKb8bqukRPHOmenJ4zmIiA&bvm= bv.62286460,d.bmk (VIEWED ON 1st March, 2014, 19:21) 46 K.B DADISETH, Corporate Governance in India, CORPORATE GOVERNANCE: ISSUES AND PERSPECTIVE (1st Ed., 2004), Pg. 37
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the family owner business would turn out to be valuable resource. It appears that this unique form of human capital in the form of firm-specific tacit knowledge which have gained from the extensive exposure to the family business. Poorly qualified successors and those who lack the motivation but choose to work in the family firm anyway disadvantage family firms that are attempting to encourage intra-family succession47. Family-owned and operated businesses often enjoy competitive advantages because of what the family itself has to offer to the business. Access to family resources and long time horizons for payoffs on investments can also strengthen a family business‘ ability to compete48. The complex set of social, cultural, and economic conditions that may yield distinct advantages for one family business may result in dysfunctional in another family managed business. The various economic variants must be considered while considering the functioning of the family managed business.
The vital role exists in the presence of the four C‘s49, which are continuity (unusually long time horizons and farsighted goals), community (unusual care of employees, including an engaging culture), connection (a focus on enduring relationships outside the firm), and command (the ability to make quick and bold decisions). In family firms, these four C‘s are uniquely
47Ibid 48http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved= 0CEUQIDAC&url=http%3A%2F%2Fwebcache.googleusercontent.com%2Fsearch%3Fq% 3Dcache%3A42euqI2OaPkJ%3Ahttps%3A%2F%2Fworkspace.imperial.ac.uk%2Fbusiness - school%2FPublic%2Fresearch%2FI_Egroup%2FDongtan%252520docs%2FSEJ_FB_uni% 252520ghent.docx%2B%26cd%3D3%26hl%3Den%26ct%3Dclnk%26gl%3Din&ei=b- ERU8G2JoaMrQf74YDIDQ&usg=AFQjCNFMvy9hvKb8bqukRPHOmenJ4zmIiA&bvm= bv.62286460,d.bmk (VIEWED ON 1st March, 2014, 19:36) 49http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&ved= 0CEUQIDAC&url=http%3A%2F%2Fwebcache.googleusercontent.com%2Fsearch%3Fq% 3Dcache%3A42euqI2OaPkJ%3Ahttps%3A%2F%2Fworkspace.imperial.ac.uk%2Fbusiness - school%2FPublic%2Fresearch%2FI_Egroup%2FDongtan%252520docs%2FSEJ_FB_uni% 252520ghent.docx%2B%26cd%3D3%26hl%3Den%26ct%3Dclnk%26gl%3Din&ei=b- ERU8G2JoaMrQf74YDIDQ&usg=AFQjCNFMvy9hvKb8bqukRPHOmenJ4zmIiA&bvm= bv.62286460,d.bmk (VIEWED ON 1st March, 2014, 19:36)
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configured to support more generic strategies such as quality, cost, or innovation. The ability to leverage these capabilities gives family firms strategic advantages.
Thus on concluding it can be summed up that the family managed business has got a vital role to play in the developed of the economy by means of its unique entrepreneurship and innovation. Family firms, because of these unique advantages they bring to the value-creation process, thus in a relatively stronger position to build and appropriate economic value than nonfamily firms. The process of implementing the various integrated approach with a clear and strong focus for the economic growth will undoubted be long and littered with numerous setbacks and pitfalls. But eventually it would benefit the society with the necessity driven entrepreneurial activities.
“Law is a social institution of enormous inequality and importance; on the other hand economics is the most advanced of the social science and the legal system contains many parallels to and overlaps with the systems that economists have studied successfully.”
- Judge Richard A Posner (1989)50
5.1 Future Scope for Research:
There is a scope for further research in this particular topic of ―FAMILY MANAGED BUSINESS‖. In its further study there can be a comparative analysis with respect to the laws of various economies in the world stating how it helps in the economic growth in the market.
50 Robert Cooter, Thomas Ulen, Law & Economics (4th Ed., 2005), Pg. 1
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Bibliography:
Books: 1. Friedmann W (2008).Law in a changing society. (2nd ed., 2008) 2. Kshama V Kaushik, KaushikDutta (2005).Corporate Governance: Myth To Reality. (1st ed., March, 2005), pg. 164 3. Robert Cooter, Thomas Ulen, Law & Economics (4th Ed., 2005) 4. K.B DADISETH, Corporate Governance in India, CORPORATE GOVERNANCE: ISSUES AND PERSPECTIVE (1st Ed., 2004)
Journals:
5. Fred R. Dallmayr(nd). Globalization and Inequality: A Plea for Global Justice. www.jstor.com (viewed on 9th December, 2013, 8:44)
6. IdilBoran(nd). The Circumstances of Global Justice.www.jstor.com (VIEWED ON 9TH December,2013, 00:53)
7. JafferMahomed J. And Sohail Syed Bulent,( 2007). ORRS,Dignam& co., advocates, April 20, 2007.http://www.cipe.org/sites/default/files/publication- docs/042007.pdf (viewed on 24th october, 2013)
8. Michael Goodhart.(nd) Democracy, Globalization and the Problem of the State, www.jstor.com (viewed on 5th December, 2013, 15:30)
9. Robert Kleiman, Eileen Peacock(2008). Family businesses as an economic phenomenon, Michigan Family Review (vol. 2, issue 2), http://quod.lib.umich.edu/m/mfr/4919087.0002.208/--family-businesses-as- economic-phenomenon?rgn=main;view=fulltext (viewed on 23rdfebruary, 2014, 21:05)
10. OSI Carlo (2010).Family business governance and independent directors: the challenges facing an independent family business board. University Of Pennsylvania Journal of Business Law, vol. 12, 2010
11. Qaiser Rafique Yasser (2011).Challenges in corporate governance-a family controlled business prospective. International Journal Of Innovation, Management And Technology, vol. 2, no. 1, 2011
12. Robert Kleiman, Eileen Peacock (nd). Family businesses as an economic phenomenon.Michigan Family Review (vol. 2, issue 2).http://quod.lib.umich.edu/m/mfr/4919087.0002.208/--family-businesses-as- economic-phenomenon?rgn=main;view=fulltext (viewed on 23rd February, 2014, 21:18)
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Reports:
13. Family Research Report, December 10, 2009, http://lindsayleaver.blogspot.in/2009/12/family-research-report.html (viewed on 10th january, 2014, 13:15)
Webliography:
14. www.jstor.com 15. http://www.inc.com/encyclopedia/family-owned-businesses.html 16. http://www.ijimt.org/papers/108-M499.pdf 17. https://www.law.upenn.edu/journals/jbl/articles/volume12/issue1/Osi12U.Pa.J.Bus .L.181%282009%29.pdf 18. http://hbr.org/2012/11/what-you-can-learn-from-family-business 19. http://www.inderscience.com/info/ingeneral/cfp.php?id=758 20. http://www.cipe.org/sites/default/files/publication-docs/042007.pdf 21. http://www.theglobeandmail.com/report-on-business/small-business/sb- managing/succession-planning/family-firms-tend-to-reject- outsiders/article588415/ 22. http://lindsayleaver.blogspot.in/2009/12/family-research-report.html 23. www.scribd.com
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PRIVACY IN INDIA: LAW AND JURIDICAL CONCERN
Dr.Rehana Parveen* Dr.Emna Chikhaoui ** For human life, values are essential; isolate these values living life become meaningless. Among values which a man cherishes the most important one are rights, which he can enjoy as an individual1. Man has some natural rights, which are because he is a human being. In the recorded history of mankind, man has fought for these rights whenever they have been challenged and exploited2.
Though there is no explicit right to privacy the Supreme Court of India has read the same into Article 21 of the Constitution of India in a number of cases. It is given the same protection as the other fundamental rights3.
The right to privacy in India has derived itself from essentially two sources: the common law of torts and the constitutional law. In common law, a private action for damages for unlawful invasion of privacy is maintainable. The printer and publisher of a journal, magazine or book are liable in damages if they publish any matter concerning the private life of the individual without such person's consent. There are two exceptions to this rule: first, that the right to privacy does not survive once the publication is a matter of public record and, second, when the publication relates to the discharge of the official duties of a public servant, an action is not
*Dr.Rehana parveen Assistant professor Law Department ,Prince Sultan University, Riyadh, Kingdom of Saudi Arabia **Dr.Emna Chikhaoui co author, Chairperson, Law Department ,Prince Sultan University, Riyadh ,Kingdom of Saudi Arabia 1DD BASU, ―Constitutional law of India‖, Princeton University Press 3rd Edition, 1983 p.66. 2 M.P. Jain, ―Indian Constitutional law‖, Delhi; Allied Publishers 1970, p.37. 3 http://www.thehoot.org/web/home/cyber2.php?cid=51&sid=6294
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maintainable unless the publication is proved to be false, malicious or is in reckless disregard for truth4.
Right to Privacy under Indian Constitution
Under the Indian Constitutional law, the right to privacy is implicit in the fundamental right to life and liberty guaranteed by Article 21 of the Constitution.
India is a party to the International Covenant on Civil and Political Rights, 1966. Article 17 of the ICCPR, grants for the "right of privacy".5 Article 21 of the Indian constitution has, consequently to be read in compliance with the international law.
Right to privacy and Human dignity:
―Every person has inalienable dignity, duties, and rights. Whatever social class one belongs to, every person is endowed not only with a living body but with an intelligent free and immortal soul which God created. Having come from God, this soul should serve God and return to God whether this soul lives in the body of a worker at the bottom of a dark Coal mine or in the body of a well fed financier living in the lap of luxury, it doesn‘t matter; in reality both have the same value. They have equal personal dignity; equal moral responsibility, the same eternal destiny and both of them have been given earthly existence so that through truth, morality and religion they strive for eternal life‖6
The Supreme Court has reiterated the Right to Privacy in the following cases:The first decision of the Supreme Court in dealing with privacy is
4 Flight between Right to privacy and Right to know :who should win?www.legalserviceindia.com 5 Article 17 of the International Covenant on Civil and Political Rights, 1966 6 Father Leo John Dehon, Founder of the Priests of the Sacred Heart http: // www.sintunun.org/ frdehon prayer/ dignity of all. html.
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Kharak Singh v. State of U.P7, a more elaborate appraisal of this right took place in a later decision of the Supreme Court in Govind v. State of MP8 where the Supreme Court traced the origin of the right and also pointed out how the said right has been dealt with by the United States Supreme Court in Griswold v. Connecticut9 and Jane Roe v. Henry wade10, the Supreme Court observed that privacy-dignity claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior. If the court does find that a claimed right is entitled to protection as a fundamental privacy right, the law infringing it must satisfy the compelling state interest test. Privacy primarily concern individual. It is therefore relates to and overlaps with the concept of liberty.
In R. Rajagopal v. State of TN11, the Supreme Court apprehended that the right to privacy is a "right to be let alone". None can make public anything relating to the above issues without his consent, whether honest or else and whether congratulatory or vital. If he does so, he would be infringing the right to privacy of the person concerned and would be accountable in an action for compensation. In P.U.C.L. v. Union of India12, the Supreme Court apprehended that the right to hold a telephone conversation in the privacy of individual‘s home or office with no interference could certainly be argued as right to privacy. Telephone tapping would, thus, contravene Article 21 of the Constitution of India. In Mr. X v. Hospital Z13, the Supreme Court apprehended that the right to privacy, apart from contract, also arises out of a meticulous particular affiliation, which may be commercial, matrimonial or even
7 AIR1963SC1295 8 AIR1975SC1378 9 381US 479 10 410 US113 11 AIR 1975SC264 12 1SCC(1997)301 13 8SCC(1998)296
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political. Public revelation of even true personal data may amount to an attack on the right to privacy. In the Indian context although there is no specific law expressly guaranteeing a general right of privacy to individuals the judicial decisions have established beyond any doubt that this right is included under Article 21 of the Constitution. In addition to there are some specific provisions providing for protection of privacy under different laws and provided punishment for the violation of the same which are as follows:
Privacy under Indian Easement Act, 1882
Indian Easement Act, 1882 under Section 18, provides, that an easement may be acquired by virtue of a local custom which are called customary easement. Illustration (b) to above Section more or less settles the contents of the customary right of privacy. It lays down, by the custom of a certain town no owner or occupier of a house can open a new window there in so as substantially to invade his neighbor‘s privacy. A build a house in the town near B‘s house. A their upon acquires an easement that B shall not open new window in his house so as to command a view of the portions of A‘s house which are ordinarily excluded from observation, and B acquires a like easement with respect to A‘s house.14
Privacy under Hindu Marriage Act, 1955
The Hindu marriage Act, 1955 Under Section 22, provides that no person shall be allowed to print or publish any matter in relation to the proceeding in camera without obtaining prior permission of the court. The discretion of the court to withhold or allow publication of the proceedings in camera is controlled by considerations of ‗public policy‘ or for reasons connected with ‗public order‘ or the ‗security of the state‘ etc, if any person
14 Section 18 illustration (b)Indian Easement Act,1882
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prints or publishes any matter in contravention of the provision contained in subsection (1) he shall be punishable with fine which may extend to one thousand rupees15.
Privacy under Children Act, 1960
The Children Act, 1960 under Section 36, makes it punishable if any one makes any dispatch to any newspaper or magazine disclosing the name, address or school or any other particulars which may lead to the identification of the child involved in any proceeding under the Act including the publication of his photograph16.
Privacy under Indian Penal Code, 1860
―Intrusion of privacy‖ as an offence in the Indian Penal Code, 1860 was neither imported from England nor a creation of the Lord Macaulay but only a codification of a long established tradition of the Indian people. Indian Penal Code, 1860 under Section 228 A, provides whoever prints or publishes the name or any matter which make known the identity of any person against whom an offence under Sections 376,. 376A, 376 B, 376C or 376 D is alleged or found to have been committed shall be punished with imprisonment of either description for a term why may extend to two years and shall also be liable to fine17.
The Criminal Law Amendment Act, 2013, amended Section 228A of the IPC to prohibit the unauthorized disclosure of the identities of the victims of the following sexual offences:376: Rape,376A: Punishment for causing death or resulting in persistent vegetative state of victim,376B: Sexual intercourse by husband upon his wife during separation,376C:
15 Section 22 , Hindu Marriage Act ,1955 16 Section 36 Children Act ,1960 17Section 228 A, Indian Penal Code 1860
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Sexual intercourse by a person in authority,376D: Gang rape,376E: Punishment for repeat offenders.18
Section 509 of the same code provide whoever intending to insult the modesty of any woman utters any word, makes any sound or gestures or exhibits any object, intending that such word or sound shall be heard or that such gesture or object shall be seen, by such woman or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine or with both.19
Privacy under Law of Torts
Common law principles of torts do not provide direct action for invasion of privacy. The law of torts seeks to provide protection by the use of civil wrongs such as defamation, trespass and breach of confidence. The tort of defamation involves the right of every person to have his reputation preserved inviolate. It protects an individual‘s estimation in view of the society and its defenses are ‗truth‘ and ‗privilege‘ which protect the competing right of freedom of speech. Essentially, under the law of tort, defamation involves a balance of competing interests. The only concession for an action, which involves infringement of right to privacy, would be for reasons of prevention of crime, disorder, or protection of health and morals or protection of rights and freedom of others.20
Privacy in tort may be described as the right of the person to the seclusion of himself, his family or his property. The phrase ―right to privacy‖ is used in the Indian case law to refer to the right which an owner of a house may have under local custom to the seclusion of his inner apartments from the view of his neighbor invasion of the privacy and
18 Section 228A,Criminal Law amendment Act, 2013 19 Indian Penal Code, 1860 20 Privacy laws in India-Big Brother is watching you, Sourabh Awasthi, Company law Journal (2002) 3 camp LJ) p.20.
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seclusion of a man‘s premises, properly speaking is part of the law of trespass or nuisance. It has been used in England and in United States in a very different state and refers to the right to freedom from emotional disturbance like annoyance, mental pain or distress caused by certain forms of misconduct which do not fall within one of the torts already recognized by the law21.
Privacy under Indian Contract Act, 1872
Indian contract Act deals certain other means by which parties may agree to regulate the collecting and use of personal information gathered, viz, by means of a ‗Privacy Clause‘ or through a ‗confidentiality clause‘ Accordingly, parties to a contract may agree to the use of disclosure of an individual‘s personal information, with the due permission and consent of the individual, in an agreed manner and or for agreed purposes and any unauthorized disclosure of information, against the express terms of the agreement would amount to a breach of Contract under the Indian contract Act, and would invite an action for damages as a consequence of any default in observance of the terms of the contract under Section 74 of the Indian contract Act,187222.
Privacy under Criminal Procedure Code, 1973
The general rule is that any person having knowledge of the commission of an offence may set the law in motion by a complaint even though he is not a person injured by the offence. But in so far as the offences mentioned above (chapter XX, IPC, 1860) are concerned, no court shall take cognizance except upon a complaint made by some person aggrieved by the offence23.
21 Dr. Tabrez Ahmad, Right to privacy: Constitutional issues and Judicial Responses in USA and India, Particularly in cyber age. 29th July 2009 at http:// ssrn. com/ abstract = 1440665 at p.35. 22. Section 74, Indian Contract Act, 1872. 23 Section 198, of the Code of Criminal Procedure, 1973.
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Section 198 of the Criminal Procedures Code, 1973 is one of the exceptions to the general rule24. It has further been observed that the offences referred to in the section are of private character and the object of the section is to see that it is not in the power of any and every body to drag such offences into a court of Justice25. Section 327 of the Code of Criminal Procedure, 1973 empowers the presiding Judge or Magistrate to exclude the general public or any particular individual from any enquiry or trial of any case, at any stage, at his discretion26. In making an arrest under Section 46 of the Code of Criminal Procedure, the police officer has been authorized actually to touch or confine the body of person arrested27, but the provision does not make it mandatory that for effecting arrest, the police officer should actually touch or confine the body of the person to be arrested before a person can be said to be taken in custody; submission to the custody by word or action is sufficient28. Under Section 164, the Code of Criminal Procedure, in recording of confession, the Magistrate is required to explain to the person making it that he is not bound to make a confession and that if he does so, it may be used as evidence against him. He is further required to satisfy himself that the confession was voluntarily made.29 The Code of criminal procedure, 1973 also permits restrictions to be imposed on the publication of reports, concerning certain legal proceeding e.g. rape trial.
Privacy under Indian Evidence Act, 1872
Indian Evidence Act, 1872 under Section 122, provides that, No person shall be compelled to disclose any communication made between husband and wife. Under Section 126 of the Evidence Act, an advocate is not permitted to disclose any communication made to him in the course and
24 AIR 1972 SC, 2609 at 2614. 25 AIR Manual, Vol. 13 (4th Ed) p.398. 26 Section 327 Code of Criminal Procedure, 1973. 27 Section 46, of the Code of Criminal Procedure, 1973. 28 AIR 1960 SC 1125. 29 Section 164, Code of Criminal Procedure, 1973.
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for the purpose of his employment as an advocate without the express consent of his client. The contents or condition of any document with which he has become acquainted in course of his professional employment or any advice given are also not to be disclosed by him. The obligation thus imposed on him continues even after his employment has ceased30.
The Interpreters and the clerk or servants of such advocates are also under the same obligation.31. Further no one is to be compelled to disclose to the court any confidential communication which has taken place between him and his professional advisor32.
Privacy under Information Technology Act, 2000
In May 2000, the Government passed the Information Technology Act, 200033. The Act provides for a set of laws intended to provide comprehensive regulatory environment for electronic commerce. The Act also addresses the question of computer crimes, hacking, and damage to computer source code, breach of confidentiality and viewing of pornography. However, the Information Technology Act, 2000 contains some provisions which recognizes privacy protection and at the same time contains some provisions which encroach upon the privacy rights. Information Technology Act uses the word ―Privacy‖ into sections, i.e. Section 30 and Section 72, the various Sections which recognize the privacy issues is discussed as under:
30 Section 122, Indian Evidence Act, 1872. 31 Section 126, Indian Evidence Act, 1872. 32 Section 127, Indian Evidence Act, 1872. 33 Section 80, Information Technology Act, 2000.
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Section 30 of the Information Technology Act, 2000 requires certifying authority to adhere to security procedures to ensure that the secrecy and privacy of the digital signatures are assured34.
Section 43 of the Information Technology Act, 2000 makes adequate provision for the aggrieved party to seek compensation for unauthorized access to his personal /private data35.
Section 66 of the Information Technology Act, 2000 also protects sensitive private information residing in ones computer resource as it inter alia makes punishable diminution in value of information residing inside a computer resource‖ with imprisonment up to three years. Thus when an intruder hacks in to the computer system and copies and transfers the sensitive personal information to competitor which may be of very high utility or of very private nature or commercial value for the owner, the said act results in diminution in value of information residing inside a computer resource and thus violation of privacy36.
Section 72 of the Information Technology Act, 2000 talks about breach of confidentiality and privacy i.e., a Government official can be punished if he passes an electronic information/data that he has received about an individual in his official capacity.37 This section has a limited application only. It confines itself to the acts and omissions of those persons, who have been conferred powers under this Act, rules or regulations made there under i.e. police, certifying authorities and officers authorized by specific notification.
Privacy under Right to Information Act, 2005
34 Section 30, of the Information Technology Act, 2000. 35 Section 43, of the Information Technology Act, 2000. 36 Section 66, of the Information Technology Act, 2000. 37 Section 72, of the Information Technology Act, 2000.
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Right to information is a human right under Article 19 of Universal Declaration of Human Rights, which states: ―Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.‖38 Right to Information Act permits citizens to gain information under government control. It might be thought to threaten the privacy of patients and research subjects, especially those in government institutions. This Act was designed to promote transparency in government, not to permit the invasion of the privacy of individual who use government hospitals or who altruistically participate in government funded research. The Act generally does not threaten the confidentiality of the doctor patient or researcher subject relationship39.
Section 8(1) of the Right to Information Act, 2005 deals with ―what is not open to disclosure‖, the Act says that‖ information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individuals should not be disclosed‖. In addition, the same section stipulates that ―Information available to a person in his fiduciary relationship‖ such as the relationship of a physician or researcher with a patient or subject-should not be disclosed‖ unless a competent authority is satisfied that the larger public interest warrants the disclosure of such information40.
The Act does not grant others the right to request information about an individual that is generated within fiduciary relationship, even if the doctor or researcher is a government employee and the medical or research
38 Article 19 Universal Declaration of Human Rights 39 Right to Information Act 2005. 40 Section 8(1), Right to Information Act, 2005.
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record is housed in a government institution, Unless public interests out weight the individual‘s interest in the privacy of the information. Thus, the degree to which the Right to Information Act threatens patient or subject confidentiality depends greatly on what would count under the Act as a ―public activity or interest‖ and as an ―unwarranted invasion‖ of privacy.41
Privacy under Indian Post Office Act, 1898
Indian post office Act 1898, Under Section 2 (i) provides that, Anybody who is employed to carry and deliver the postal article (Which includes a letter, post card, news paper, book pattern or sample packet, parcel and every article or thing transmissonable by post)42if found guilty of carelessness endangering the safety of postal articles, causing delay in the conveyance or delivery thereof is liable for punishment. If any officer of the post office, contrary to his duty, opens any postal article in course of transmission by post or willfully detains or delays such postal articles he is liable for punishment.43 Detaining the mails or any postal articles or even opening the mail bag in course of transmission by post by any person without due authority under the Indian post office Act or any other Act for the time being in force is punishable44.
Privacy under Credit Information Companies (Regulation) Act, 2005
Credit Information Companies (Regulation) Act 2005 deals with the critical areas of accuracy and security of credit information there by facilitating the provision of information to the users of members of credit information companies and at the same time, provides for maintenance of privacy of the consumer. The data relating to the credit information being provided by the credit information company has to be accurate, complete and duly processed
41 Section 8, Right to Information act 2005 clause 1 provides exemptions 42 Section 2(1), Indian Post Office Act, 1898. 43 Section 53, Indian Post Office Act, 1898. 44 Section 63, Indian Post Office Act, 1898.
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and protected against any loss or unauthorized access or use, which shall be the responsibility of the credit information company45. Section 20 of the Act enumerates privacy principles which shall be applicable on the credit information company, credit institution and the specified user. The principle has been made applicable for the purpose of processing, recording, preserving and protecting the information or data. The privacy of the customer or the borrower shall extend to the purposes of the information, extent of obligation of the credit information company, preservation of credit information networking of credit information companies‘ credit institutions and any other principles and procedures.46
Privacy under Copy Right Act, 1957
Copyright, under the Copyright Act, 1957 is a right granted to creators of literacy, dramatic, musical, computer and artistic works, and producers of cinematography films and sound recordings. Copyright includes right of reproduction, communication to the public, adaptation and translation of the work47.
Copy right ensure certain minimum safeguards of the authors‘ right over their creations, thereby protecting and rewarding creativity. The author of a work has the right to claim authorship of the work and to restrain or claim damages in respect of any distortion, mutilation, modification or other act in relation to the work, if such distortion, mutilation, modification or other act is prejudicial to his honour or reputation. Moral rights are available to the authors even after the economic rights are assigned (section 57)48
45 Credit Information Companies Regulation Act, 2005. 46 Section 20, Credit Information Companies Regulation Act, 2005. 47 Indian Copy Right Act 1957 48 Section 57, Indian Copyright Act, 1957.
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To conclude the right to privacy in India as in any other Jurisdiction, though not statutorily codified as yet. Its scope is by the lack of such codification neither extremely narrow nor considerably wide. It is on the other hand relatively ambiguous. This implies that this aspect should be handled with a great deal of care and circumspection by the legislators and judicial authorities.
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INTERNAL DISPLACEMENT IN INDIA WITH SPECIAL REFERENCE TO IDPS IN KASHMIR Abidha Beegum V.S.1
International Humanitarian Law relevant in armed clashes implies universal standards, created by bargain or custom, which are particularly expected to take care of humanitarian issues that emerge specifically from international or non-international equipped clashes. For helpful reasons, these standards ensure persons and property that are, or may be, influenced by clash by restricting clashing parties' rights to pick their routines and method for warfare. The representation international philanthropic law material in outfitted clash is frequently shortened to International
Humanitarian Law or Humanitarian Law.
Relevance of International Humanitarian Law
One can say that the laws of war are just about as old as war itself.
Indeed in old times, there were fascinating traditions that today would be delegated Humanitarian. It is fascinating to note that the substance and point of these traditions were the same for practically every human progress as far and wide as possible. This spontaneous era of humanitarian principles, at distinctive times and among people groups or states that had restricted method for correspondence with one another, is additionally a vital wonder.
1 Assistant Professor in Law, Aligarh Muslim University, Malappuram Centre
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This marvel gives trustworthiness to the verifiable contention with respect to:
• The need of having decides that apply to armed clashes;
• The presence of an inclination in numerous human advancements that, under particular conditions, individuals, companion or adversary, must be secured and regarded.
Definition expounded by the International Committee of the Red
Cross and by and large acknowledged2. In spite of the fact that researchers for the most part concur that the conception of advanced IHL was in 1864, with the reception of the First Geneva Convention, it is additionally clear that the tenets held in that Convention were not by any means new. In all actuality, a lot of the First Geneva Convention was inferred from existing international standard law. Actually, there were principles securing certain classifications of victimized people in outfitted clashes and traditions concerning the methods and strategies for approved or disallowed battle throughout threats as right on time as 1000 BC.
In spite of the fact that these old and frequently extremely simple standards were not settled for philanthropic reasons, yet rather for absolutely prudent purposes, their impact was humanitarian.
Case in point:
2 Source: Commentary on the Additional Protocols of 8 June 1977, ICRC, Geneva, 1987, p. XXVII.
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• The forbiddance against harming wells was initially made to allow the misuse of vanquished ranges3;
• The first explanations behind the forbiddance against murdering detainees were to defend the lives of future slaves or to encourage the trade of detainees4.
Such preclusions could be found in numerous diverse human advancements, all through the world and all through history. Case in point, in numerous parts of Africa there were particular guidelines with respect to the beginning of threats between distinctive people groups that compare, to a huge degree, to the established European customary commitment of pronouncing war. Additionally, in a treatise called The Arts of the War, composed in 500 BC, the Chinese essayist Sun Tzu, communicated the thought that wars must be constrained to military need, and that detainees of war, the injured, the wiped out, and regular folks ought to be saved.
Moreover, in the Indian subcontinent, comparative guidelines could be found5. The Code announced that spiked or harmed weapons were restricted, that injured troopers must be watched over, and that surrendering soldiers must be saved.
These illustrations of Humanitarian traditions in different developments exhibit that, regardless of the fact that the Geneva or Hague
3 reaffirmed in 1899 in The Hague 4 reaffirmed and created in the Third Geneva Convention of 1949 5 For instance, in the Code of Manu composed in 200 BC, one discovers tenets identifying with conduct in battle.
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Conventions were not general at origin, since they were drafted and received by legal advisors and negotiators fitting in with the European Christian society, their notions are almost all inclusive, since the standards they hold could be found in altogether different frameworks of thought — both
European and non-European6.
The Indian government has no national policy to respond to internal displacement caused by the armed conflict, communal and ethnic viciousness. The obligation for defending the emigrant and providing support normally falls on the state government and the district authorities.
Furthermore, it very difficult to estimate the exact number of armed conflict-induced IDPs in India as there is no central government agency in charge for observing and monitoring the number of people displaced in the region. Besides, humanitarian organization who would otherwise provide the actual data in the absence of any government agency usually has limited access to the IDP. Those whose number is known are those living in the camps. However, a conservative estimation of the number of people displaced by the conflict is at least 650,000 as of 2010. Nonetheless, the real number is projected to be far higher, especially when the IDP living outside the camps and other who are dispersed in India‘s cities are included in the estimate.
6 The main widespread bargain on Humanitarian Law is the Geneva Convention of 1864.
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In India, Kashmiri is the minority Hindus in the Kashmir valley.
However, in late 1980s, the Kashmir‘s started abandoning their residential in reaction to separatist‘s assaults on their business, homes and temples.
Nonetheless, the imposition of the direct Indian central government force between 1990 and 1996 failed to calm the escalating terrorist situation. As a consequence, at the end of 1996, more than 250,000 Kashmiri Pandits have been expatriated to Jammu, Delhi and other places where they still live today. Considering the size of the terrorist groups and their levels of external assistance, it is problematic to perceive how internal displacement of people could have been prevented. Furthermore, arguments that the
Kashmiri should have remained in the valley and not succumbed to the threats posed by the clashes often overlook the obvious fact that law and order has been broken down, and the authorities could offer little or no protection. Since the government shown very little interest on protecting the
Kashmiris in the region, Kashmiris has no option but to move on their own to safe areas displacement inevitable. In the absence of structured or existing framework for resettling and rehabilitating the IDP in the region, an alternative solution is essential in order to alleviate the suffering of the
Kashmiris in the state of Jammu and Kashmir.
According to the guiding principle on internal displacement presented by UN commission on human rights in 1998, it is the obligation of the state to offer protection and to protect the fundamental rights of the
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IDPs. The state needs to offer protection to the people before displacement, during events that lead to displacement and during post-conflict period.
However, the government of India has failed in all aspect to protect the resident of the region against social, economic and civil injustices perpetrated during the conflict. Therefore, there is a need to a legally binding agreement between the states of Jammu and Kashmir and the Indian government to engage in dialogue. The dialogue should also include other humanitarian actors in order to devise a consolidative plan to resettle the displaced persons in the region. It is ostensible that the Indian central administration does not consider the Kashmiri as Internally displaced persons. According to the appeal made to the National Human Rights
Commission in mid 1990s, the Kashmiris claimed that the Indian authorities spread facilities, humanitarian support and the right to seek asylum by virtue of their displacements. However, the commission noted that the IDP did not meet the typical definition of the IDPs especially in the perception of the compassionate attitude shown to them by the Indian government.
Nonetheless, on its response, the government pointed out that the word migrant was more appropriate description of the status of the Kashmiri. The central and J&K government have not done enough to ameliorate their conditions or even find a permanent solution to their problem. Both India‘s central and state government must provide more support for the Pandits especially structuring their resettlement and rehabilitation program.
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Although the Indian has been striving since 1996 to prepare a plan for the return of the IDP to their land, the security at the Kashmir valley is undoubtedly better than it was in 1989. However, the Kashmiri Pandits have insisted that the security situation at the valley remain unfavorable to return to their land. Terrorist attacks in the valley continue, and it‘s very unlikely that the government will provide adequate security for the Pandits who return to the scattered rural communities. Therefore, it will be prudent for the Government not to coerce the IDPs to return to the places where the threats of the terrorist violence remain high. The government together with the other stakeholders in the region needs to set up a tribunal to deal with illegal occupants of Pandit Kashmiri property. Furthermore, the government need to provide compensation for the 37,000 houses damaged, and more than 11,000 houses burnt. It will also be recommendable for the central and state government to provide jobs and cash relief and to reserve parliamentary seats for the pandit in order to provide them with a platform of addressing their predicaments. Currently, the government provides a monthly assistance of US$34 per family. Any attempt to force the displaced person to return to the valley will be opposed not only by Pandits but also the international criticism.
Although there is a close connection between a refugee situation and an IDP in the region, the extension of the refugee protection regimes encompass IDP is not appropriate A distinctive categories need to be
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devised, and the status of the pandit in the Kashmir clearly be defined.
However, the regime for the protection of IDPs needs to be complimentary to the regime for protecting the refugees. It simply because under the overall protection regime of human rights, the two regimes, one for the refugees and the IDPs, could forms a well-integrated protection regime. It essential recognizes that national and international authorities have an obligation to prevent displacement of persons. In the J&K situation, where the government is fully unable to meet the challenge of preventing and resettling the displaced persons due to the factors that sometimes are beyond its control, the role of the international community needs in rehabilitation and resettlement need to be specified. There is increased need to force the international community at least to condemn the terrorist acts and conflict that has made it impossible for the Kashmir to resettle back to their land.
Although any international intervention must respect the sovereignty of the nation, more pressure need to be imposed in order to force the Indian government to embrace pro-active role in resettling the IDPs in the Kashmir valley.
The UN charter on human rights asserts that every IDP has a right to liberty of movement and to choose her /his place of residence. However, it is still unapparent whether the government plans to resettle the IDP back to their previous settlement. The Government needs to understand that IDP usually faces hostility in their new place of residence from the local people
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especially when their number is large, and their period of stay remains uncertain. The problem of Kashmir is not anything different. In order to ensure IDP enjoys such rights, the both central and state government need to notify the new places of the residence of IDP‘s in order to bring it under the state control. Such pro-active measures will offer IDPs a better sense of security, and a reprieve to already deplorable condition. The government needs to establish a permanent place of resettlement for the Kashmir IDP.
This is because the state government at J&K may not essentially be inclined to settle IDPs permanently in their new places of residence because of a serious political implication that may arise.
Fundamentally, IDPs have rights to find protection in a different part of the country, leave their country or seek asylum abroad. They have right to be protected against any forcible return to their previous place of resident where their life, safety and liberty or their health would be at risk. The
Central and State government in India should be restrained from coercing the IDP into returning to their original places of residence against their will.
It anticipated that the government may force the IDP to return and leave them unable to get protection from any other agency. Therefore, it is recommendable for an objective assessment to be executed in order to assess whether the conditions at the area are favorable for the return of the
Kashmir IDPs to their previous place settlements.
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It is evident that the issue of continuance of education for the children is the main problem for the IDPs. Although Kashmir pandit student has received a preferential admission to the educational institution, in general their education needs have not been fully met especially after years of social and civil unrest. As part of IDP rehabilitation program, there is an increasing need for a specific commitment and government actions to meet the need of the IDP student in the region. Furthermore, it worth to note that international humanitarian organization have the right to provide humanitarian services and all authorities need to grant the persons engaged with the provision of such assistance to unlimited or unimpeded access to
IDPs. In the absence of structured and legal framework that effectively offer rehabilitation services to IDPs in Kashmir, the international community needs to coerce the Indian government to grant humanitarian organization access to the IDPs in Kashmir. Furthermore, access to the internally displaced persons in Kashmir and Jammu should not be left to the discretion of the state rule. This is because the state may object to providing unrestricted access due to the geopolitics dynamics in the region. The government needs to involve an international organization in return, resettlement and re-integration especially in areas where prudent solution has been found for IDPs.
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EUTHANASIA: A COMPARATIVE STUDY OF JUDICIAL TREND IN INDIA AND OTHER COUNTRIES
Ms. Shilpi Sharma*
Introduction
7th March, 2011 was a red letter day in the long journey of the Indian Constitutional Law, when the Indian Supreme Court gave its judgment legalizing the euthanasia in India, thus including the ‗right to die‘ as one of the component of ‗right to life‘. The legalization of what is commonly known as ―passive euthanasia‖ as distinct from ―mercy killing‖ or ―active euthanasia‖ was the result of the petition filed for grant of such permission by one writer cum social activist Pinky Virani on behalf of Aruna Ramchandra Shanbaug, who after a sexual assault on her, went to the stage of comatose and has been in the ‗Persistent Vegetative State‘ for about last 40 years in Mumbai‘s reputed KEM hospital. In India the concept of euthanasia was raised and addressed by the courts in many cases pertaining to the crime of suicide under Sec 309 of the Indian Penal Code. Likewise, in countries like America and England, the matter has been the point of concern for the judiciary many times. Even after the enactment of Oregon Death with Dignity Act in the Oregon state of America in 1995 which was enacted in the wake of Washington Vs Glucksberg, the judiciary there was moved for the repeal of the said act in the case of Lee Vs Oregon and was upheld by the Supreme Court of United States. The famous case of Tony Bland that was decided by the House of Lords (UK) was the case which weighed heavily on the minds of the Supreme Court judges while allowing Passive ______*Asstt. Professor, AURO University, Surat, Gujarat India
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Euthanasia in India. The judicial approach in other countries regarding the matter of euthanasia is worthwhile to study to know the journey from an idea or the demand of time to a legal right in India as well as in other countries. Defining Euthanasia
‗Euthanasia‘ comes from the Greek word ‗eu‘ means ‗good‘ and ‗thanatos‘ means ‗death‘.
According to Oxford dictionary, ‗euthanasia‘ means ―the practice (illegal in most countries) of killing without pain of who wants to die because he/she is suffering from a disease that cannot be cured.‖
The Apex Court in its judgment given on 7th March 2011 in the historic case of Aruna Ramchandra Shanbaug Vs Union of India1 attempted to defined Active and Passive euthanasia The court said that ‗Active euthanasia‘ is the use of lethal substance or forces to terminate the life of a person who is in terrible agony, whereas, ‗Passive euthanasia‘ is withholding of medical treatment for continuance of life.
Euthanasia and the Judicial Approach in India
The Indian Judiciary many times presented its views on the constitutionality of sec 309 of IPC along with sec 306 IPC and with it has many times commented on the matter of euthanasia. The constitutional validity of sec 306 has been upheld in a decision of the Bombay High Court in the case of Naresh Marotrao Sakhare Vs Union of India2 and it was held that it is not violative of Art 14 and Art 21 of the constitution.
1 Writ petition (criminal) no 115 2009 2 1995 Cr LJ (Bom) 96
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Right to Life Vs Right to Die- After the interpretation of ‗Right to life‘ under Art 21 of the Constitution as ―Right to live with Human Dignity‖3, the Art 21 has faced a wide range of interpretations. This came for the consideration for the first time before the Bombay High Court in State of Maharashtra Vs Maruti Sripati Dubal4.The Bombay High Court held that the right to life guaranteed by Art 21 includes the right to die, and consequently Sec 309 IPC was stuck down by the court being unconstitutional, which provides punishment for attempt to commit suicide by a person. The court opined that fundamental right have both positive and negative aspect and therefore, stated logically it must follow that right to live includes right not to live i.e., the right to die or to terminate one‘s own life. The Apex Court differentiate between the euthanasia and suicide in Naresh Marotrao Sakhare vs. Union of India5 and said that the suicide by its very nature is an act of self- killing or termination of one‘s own life by ones at without assistance from others, but Euthanasia means the Intervention of other human agency to end the life. Mercy killing therefore cannot be considered on the same footing as suicide and cannot be allowed. The Andhra Pradesh High Court in Cheena Jagdeeshwar Vs State of Andhra Pradesh 6 did not include the right to die within the scope of fundamental rights within the meaning of Art 21 and therefore, declared sec 309 IPC constitutionally valid. In P Rathinam Vs Union of India7 a division bench of the Supreme Court agreed with the view of the Bombay High Court in Maruti Sripati Dubal case and held that a person has a right to die and declared sec 309 of the IPC unconstitutional according to which ―attempt to commit suicide‖ is a penal offence. The ‗right to live‘ in Art 21 of the Constitution also mean the ―right
3 Maneka Gandhi v. Union of India, AIR 1978, SC 597 4 1987 Cr L J 549 5 1995 Cr LJ 96 6 1988 Cr LJ 549 7 (1994)3 SCC 394
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not to live‖ i.e right to die or to end one‘s life. However, the court rejected the plea that euthanasia should be permitted by law. In Gian Kaur Vs State of Punjab8 a five judge Constitution bench of the Supreme Court overruled the P Rathinam‟s case and holding that ―right to life‖ under Art 21 of the Constitution is exclusive of ―right to die‖ or ―right to be killed‖. As ‗death‘ is not consistent with the ‗life‘, in the same way ―right to die‖ is inconsistent with the ―right to life‖. The Court clarifies that the ―right to life‖ including the ―right to live with the human dignity‖ would mean the existence of the right up to the end of natural life. But the ―right to die‖ with dignity at the end of life is not to be confused with the ―right to die‖ an unnatural death curtailing the natural span of life9. The court argued that permitting termination of life in the cases of terminally ill dying man or a person in a vegetative state by accelerating the process of natural death when it was certain and imminent was not available to interpret Art 21 so as to include therein the right to curtail the natural span of life. Aruna Shanbaug‟s case10: New dimensions- The meaning, content and scope of the term ―right to life‖ again came up for the consideration of the Supreme Court in the case of Aruna Shanbaug Vs Union of India11. The court studied some issues in relation with the case such as-
1. Is the withdrawal of life prolonging therapies of a person in a permanent vegetative state is unlawful? 2. Should the opinion of the patient given in his healthier period, be taken into consideration at the time of withdrawal of such therapies?
8 (1996)2 SCC 648 9 Dr. J.N.Pandey: Constitutional Law of India, Central Law Agency, 47th ed, Pg 259 10 TEXT of Aruna Shanbaug v. Union of India Writ Petition (criminal) no 115 retrieved from ibnlive.in.com/news/full-text-supreme-courts-judgement-on-aruna-ramchandra- euthanasia-petition/145201-53.html 11 Writ Petition(Criminal) no 115 of 2009
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3. In the absence of the patient‘s wish, should the opinion of his relatives or close friends be considered for such withdrawal? The Supreme Court itself observed and noted that the broad issues raised before the House of Lords in the Tony Bland Case and the questions raised before the Court in the Aruna Shanbaug case are precisely the same. The court agreed that passive euthanasia should be permitted in the country in certain situations and laid down the law in this connection which will continue to be the law until Parliament makes a law on the subject. The court ruled out that-
1. Such decision has to be taken either by the parents, spouse, and close relatives or by a person or a body of persons acting as the next friend of the patient. 2. Such a decision should be approved by the High Court concerned as laid down in the Airedale‘s case.
3. In the case of the incompetent person, only the court as Parens Patriae, must make the decision.
4. The court further laid down the procedure to be adopted by the High Court when such an application is filed. Taking the ruling in the Airedale NHS Trust Vs Bland as the precedent, the court said that the approval of the High Court has to be taken in this regard. Tony Bland Case: The Guiding Force- Tony David Bland, a supporter of Liverpool Football Club, got injured in the disaster of Hillsborough. He landed into the persistent vegetative state due to severe brain damage caused due to the accident.The hospital, with the support of his parents, demanded for him ‗the death with dignity‘. As the result he became the first patient in English history to be allowed to die by the courts through the withdrawal of
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life prolonging treatment. The relevant case was Airedale NHS Trust Vs Bland, 1993. The court considered that it was in the patient‘s best interest for treatment to be withheld and that its discontinuance was in accordance with good medical practice. Acting on behalf of Tony Bland, the official solicitor appealed this decision to the court of appeal. The court of appeal supported the lower court‘s judgment. The court of Appeal decision was appealed to the Judicial Committee of the House of Lords where the appeal was dismissed unanimously. For the future cases, the House of Lords propounded that the decision whether to continue or not the medical treatment of a PVS patient should be taken by the medical practitioner of the particular case and further instructed that such decision should be applied to the Family division of the High Court for endorsing or reversing the said decision. This case brought up a number of moral and legal issues and is another which delegated to the Bolam standard. This was the test introduced by the courts in Bolam Vs Friern Hospital Management Committee [1957]. The essence of the Bolam standard is such as to remove liability from medical staff if the treatment they have provided to the patient under the particular circumstances would have been followed by a responsible body of medical personnel who have exercised due skill and care in the process. According to Bolam‘s test, a doctor is only supposed to show that he was following an accepted medical practice even if that practiced was only followed by a minority of medical practitioner. This was one of the arguments put forward by the doctor of Tony Bland that it would be intolerable if the doctor was charged with murder for following what he submitted to be generally regarded as good medical practice. The principles that were laid down in the Bland Case were applied in many cases where the person did not meet the criteria laid down by the Royal
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College of Physicians to be considered as a person in a persistent vegetative state. As a result of a road traffic accident in 1989 at the age of 22, and further brain damage from the cause not known in 1995, a Mr. D was in an irrevocable vegetative state and was fed through a PEG tube. In 1997, Mr. D‘s condition fulfilled all except one of the Royal College of Physicians criteria for persistent vegetative state. The President of the Family Division was satisfied with the evidence which showed that Mr. D had neither awareness nor meaningful life and thus granted the declaration allowing his PEG tube to be removed. In 2001 eight years and many cases after the Bland Case a new practice note was issued by the Official Solicitor dealing with permanent vegetative state cases. The practice note confirmed that applications are to be made to the Family Division of the High Court. According to the note it was futile to provide medical treatment, artificial nutrition and hydration, to a patient having no awareness of self or environment and no prospect of recovery. It was suggested by the ‗Practice Note‘ that the permanent vegetative state should not be diagnosed until a patient has been in a continuing vegetative state following head injury for 12 months or following other causes of brain damage for six months. It also gave advises about who should give the medical evidence. The other evidence like the views of the family are encouraged, but there is no reference about the views of the person. On the basis of the with the Practice Note, the English court gave many declarations for the withdrawal of the nutrition and hydration as in the case of one Mrs. G who had suffered severe brain damage resulting from a complications after minor surgery in September 2000 having no prospect of recovery. In the Bland Case, the English courts were clear that their view of what is in the patient‘s best interests can override the views of the patient‘s family.
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This power of the English court was very controversial though asserted in the Court of Appeal in 2005.
In 2005, Mr. Burke12 was 45 years of age.13 He was confined to the wheelchair as he was suffering from a congenital degenerative brain condition known as spino-cerebral ataxia. Though he was not able to speak properly, he was mentally alert. But his condition was leading him to the situation when he would be completely dependent upon others for all his needs. He showed his desire to be fed and provided with appropriate hydration until he died of natural causes.
In a single judgment, the court made it clear that the wish of such competent patient should be respected but it should not be the only source to provide such treatment. It may not be a duty of doctors to keep alive a patient in a persistent vegetative state.
In the case of Mr. Burke, the Court of Appeal stated that if a person is competent enough to manifest his wish that he should be kept alive even when he is suffering from extreme pain and indignified conditions, the doctor who interrupt the life-prolonging treatment deliberately would be charged with the offence of murder. But the doctors are oblidged to provide the patient, the treatment which he demand but the treatment which is, according to the doctor, clinically best in this situation.
The Judicial Trend in America
The claimed first use of a ―formal‖ living will, which was subsequently upheld by the courts, was in Florida14 when a terminally ill man was taken to the John F Kennedy Memorial Hospital in Florida.
12 R Burke v. General Medical Council (2005) 13 Case retrieved from http://www.austlii.edu.au/au/journal/SydUPLawBK/2011/13.html 14 John F Kennedy Memorial Hospital v. Bludworth (1984)
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In 1984 the Supreme Court of Florida recognized that terminally incompetent persons have the same right to deny the treatment as the terminally ill competent persons have. This right can be exercised by the close relatives and appointed guardians of such patients and that the decision to cease the use of artificial life supports should normally be made in the patient-doctor-family relationship. The court further held that doctors, in consultation with close family members are in the best position to make these decisions. The focal point of such decisions should be whether there is a reasonable medical expectation of the patient‘s return to cognitive life as distinguished from the forced continuance of a vegetative existence. In the 1970s in the US Karen Quinlan, who lost consciousness and went into a persistent vegetative state, was kept alive for years through artificial nutrition and hydration despite the efforts of her parents to be allowed to let her die. In the case of Re Quinlan, the New Jersey Supreme Court held that Quinlan‘s father could make the decision to turn off the respirator that was keeping her daughter alive. In that case, the patient‘s constitutional right of privacy, as asserted by her guardian, outweighed the state‘s interest in preserving the sanctity of life and defending the best judgment of medical professional. The court recognized that the state‘s interest diminished as the potential for life diminished. This was the first of the several cases concerning the withdrawal of life support from persons in a persistent vegetative state. Her fate led to a demand for legislation, which many States enacted, to allow advance directives.15
Later, in the case of Nancy Cruzan, the Missouri Supreme Court held that before medical support could be withdrawn from an incompetent person there had to be clear and convincing evidence of their wish for this to
15 Retrieved from http://www.austlii.edu.au/au/journal/SydUPLawBK/2011/13.html
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happen. As the court found that the evidence in this case did not meet the higher standards Ms. Cruzan‘s feeding tube could not be removed.16
The matter went to the US Supreme Court in the same case, on the question of whether the US Constitution forbids a State from requiring clear and convincing evidence of a person‘s expressed decision, while competent, to have hydration and nutrition withdrawn in such a way as to cause death. The Supreme Court held that the Constitution did not prohibit this court imposed requirement
It has been noted that the Supreme Court in the Cruzan Case ignored doctors. It never discussed the doctor-patient relationship or whether it matters if the patient‘s doctor had a long-standing relationship with them and understood what treatment the patient wanted.
Again in the case of Vacco Vs Quill (1997), the constitutionality of the New York Statute making it a crime to aid persons in committing suicide or attempting to commit suicide was challenged on the grounds that it violates the equal protection clause of the 14th amendment to the US Constitution.
The respondent doctors asserted that although it would be consistent with standards of their medical practice to prescribe the lethal medication for mentally competent, terminally ill patients who are suffering great pain and desire a doctor‘s help in taking their own lives, they are deterred from doing so by New York‘s ban on the assisting suicide.
The US Supreme Court in this case rejects the respondent-petitioners contention and recognized the distinction between refusing life-saving medical treatment and giving lethal medication. The US Supreme Court unanimously held that there is a difference between a patient‘s common law
16 Cruzan v. Director, Missouri Department of Health
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right to ―refuse treatment‖ and ―assisting a person to commit suicide‖. The right to refuse treatment is based on the ―right to hasten death‖ and a well- established ―traditional right to bodily integrity and freedom from unwanted touching‖. The court held that the State of New York could validly ban ―assisting in suicide‖.
In Washington Vs Glucksberg (1997), the US Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process clause of the 14th amendment to the US Constitution.
The US courts have established and repeatedly restated that the right of a person to refuse medical treatment is not lost if they lose their capacity to give a valid consent to their own medical treatment and were thus considered incompetent to give or refuse consent to such treatment. The assertion of that right, particularly when the treatment is life-sustaining, gives rise to a series of difficult questions that the US courts have dealt with. These include, who can give consent to the carrying out of or to the refusal of such treatment? Do the substitute decision-makers have to carry out the wishes of the person they are making the substitute decision for? If so, what degree of certainty do they have to have about the person‘s wishes before they can act? Can they make the decision in the person‘s best interests? If so what degree of certainty do they have to have about the person‘s best interests before they make the decision? Are there differences in the substitute‘s decision-making options arising from whether the person is comatose or in a persistent vegetative state or whether the person has some degree consciousness? A range of US cases deal with these and other related issues. The decisions made in these cases are not necessarily consistent with one another, nor do they reflect all relevant considerations as they result
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from court hearings in which non-legal perspectives on how to deal with the matters to be decided were given little account.
As already noted, by 1984 in the USA the Supreme Court of Florida at least had recognized that the right of a patient who is in an irreversibly comatose and essentially vegetative state to refuse extraordinary life-sustaining measures could be exercised by either their close family members or by a guardian of the person of the patient appointed by a court with appropriate jurisdiction. There was no need to obtain the consent of a court before terminating such treatment.17
A Comparative note on the Judicial Trends
India faced the situation recently in the year 2011and the Indian Judiciary is yet to do the interpretative work on the said ruling, also it has not faced any of the petition filed under the directives given by the Supreme Court yet. The Indian Supreme Court has also taken the English case of Tony Bland18 as the precedent and many of its directives given in its judgment resembles the directives in the Bland‟s case.
While there are different courts for England and Wales, Scotland and Northern Ireland the common law of the United Kingdom jurisdictions, particularly the recent developments in that law, tends to be the same. This is partly because the House of Lords is the final court of appeal in civil matters in all United Kingdom jurisdictions and because of the convenience of having the same common law throughout the country. Also the parliament in Westminster makes the statute law that applies to England, Wales and Northern Ireland and sometimes Scotland. In this regard the common law is affected by fewer pieces of legislation than in the US where
17 John F Kennedy Memorial Hospital v. Bludworth 18 Airedale NHS Trust v. Bland, 1993
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State legislation can affect the common law in many different ways in the different States. The US common law is also affected by the US constitution. While there is no written constitution in the UK, as has already been noted, the European Convention of Human Rights and Fundamental Freedoms 1950 has been incorporated into United Kingdom law as Schedule 1of the Human Rights Act I. It will have effects similar to the effects on US common law the ―Bill of Rights‖ provisions of the US constitution have had in the last 50 years.
Aside from these factors, there are a number of differences in the way the judges have developed the law in the UK and the USA. These can best be shown by summarizing those parts of the UK common law that are different from that developed in the US. These are:
1. The best interests test is used in relation to both those in a persistent vegetative state and those with different conditions not involving unconsciousness but for whom treatment is intrusive, hazardous and unlikely to produce anything more than a very poor quality of life.
2. Court approval continues to be required in cases involving persistent vegetative state and the other conditions referred to in 1.
3. The views of the person do not have to be proved. Their views and those of their family can be taken into account, but it is for the court to decide what is in the person‘s best interests.
There are also similarities. These are:
1. In the UK a judge has to be satisfied to a high degree of probability by the evidence before they can make a declaration allowing the withdrawal of life-sustaining treatment. This seems similar to the ―clear and convincing evidence‖ test developed in the US.
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2. The starting point is the maintenance of life. In the UK this is stated as a positive duty on hospitals to take such steps as are reasonable to keep a patient alive. While in both the US and the UK this duty is not absolute, substantial proof must be shown before life-sustaining treatment may be discontinued.
Conclusion
The Supreme Court of India has thrown the issue open once again by asking for the feasibility of legalizing living wills and other related issues in India. Though, it has acknowledged that the right to dignity in life extends to a dignified death, a codified law along with the judicial activism in the matter still have a big scope to evolve.
References:
1. Pandey J.N: The Constitutional Law of India, Central Law Agency, 47th ed. 2. Ratanlal & Dhirajlal: The Indian Penal Code, Wadhwa & Co., 28th ed. 1999
3. http://www.austlii.edu.au/au/journal/SydUPLawBK/2011/13.html
4. http://www.austlii.edu.au/au/journal/SydUPLawBK/2011/13.html
5. ibnlive.in.com/news/full-text-supreme-courts-judgement-on-aruna-ramchandra- euthanasia-petition/145201-53.html
6. http://www.austlii.edu.au/au/journal/SydUPLawBK/2011/13.html
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MEDIATION - A DENIAL OF ACCESS TO JUSTICE1
INTRODUCTION
Access to justice cannot be easily defined, it means having recourse to an affordable, quick, satisfactory settlement of disputes from a credible forum, it basically focuses on two main purposes of a Legal system- firstly, a system by which people may vindicate their rights and resolve the dispute and therefore, it must be equally accessible to all, secondly, it must lead to results that are individually and socially just. Access to justice has an intrinsic nexus with the term ‗justice‘ in the sense that it is its minimum pre- requisite. The preamble to our Constitution resolves to secure to all its citizens justice-social, economic and political while Article 14 provides for two things- firstly, that every person is entitled to protection of all the laws of the land and, secondly, every person within the territory is equally entitled to that protection. However, when mediation is used as a means of providing justice it is not very effective and in many cases due to a number of shortcomings in the mediation process justice is denied as parties are free to waive their rights and also to evaluate and even to err in law and thereby, protection of Article 14 is denied which is unconstitutional.
SHORCOMINGS OF MEDIATION PROCESS
The following can be considered as some of the shortcomings in the use of mediation as an effective means of dispute resolution and thus leading to denial of justice-
As Mediator cannot compel attendance of any person or production of any documents many a times parties do not appear for mediation
1 AMBRINA KHAN, LL.M. II, NATIONAL LAW SCHOOL OF INDIA UNIVERSITY, BANGALORE, ASSISTANT PROFESSOR, SCHOOL OF LAW, ITM UNIVERSITY, GURGAON.
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and deny to present several important documents which makes it very difficult to ascertain the truth and thereby reach a just settlement, as ascertaining truth is important to render justice and it is to be remembered that justice is the beacon of any dispute resolution method and not just mere settlement of dispute. Mediator can only persuade the parties to reach a settlement and has no power to compel them to accept his settlement decisions. Mediator has no power to penalize a recalcitrant party. Since in mediation one of the parties is already suffering under the threat of a litigation and a court case going upon them they are sometimes forced to accept conditions which are unjust as they want to avoid the court case at any cost and unnecessary burden is thrust upon them in the name of a supposed court case. Mediators are lawyers, no doubt very competent in legal field yet they do not have as much understanding of human psychology as a psychiatrist might have and thus are at times unable to understand the real issues on both sides and the problem is not solved from the root and after few years it may again spring up like a cancerous cell. Even a single issue left unsolved will again multiply in years leading to a new dispute which could be stronger and more fearful than the present as aggrieved party would be hesitant to again bring a court case due to fear of loss of respect, financial weakness or simply because they got fed up with court proceedings and thus continue to bear the wrong done to them. Mostly the parties are illiterate who are unaware of their legal rights and thus they fail to understand the real implication of the mediation proceeding and take it as a courts judgment and fail to exercise their discretion and self willingness completely.
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Parties who are illiterate at times fail to access what is good and what is bad for them and tend to reach wrong agreement which is unjust and taxing for both of them. Eg. In divorce cases it is usually seen boys side is always ready to take back the girl as they do not want to pay the alimony while girl is not ready to go as she could sense plenty of money coming to her family, in this desire for money they both fail to see what is actually for their benefit, and being illiterate they also fail to consider that 50thousand or 60thousand rupees could not be sufficient for their lifetime, still on seeing such huge sum of money first time in life they want them irrespective of other considerations. Since the agreement in mediation is basically contractual and is enforceable like any other contract according to the provisions given under Indian Contract Act, thus if even after signing of mediation agreement and completion of final follow up one of the party fails to perform their part of agreement the only remedy which is available to the aggrieved party is to again file a case for the specific performance of the agreement. Thus it seems stupefying that in order to avoid formal litigation parties entered into an agreement and to enforce such agreement parties again enter into formal litigation. It is no doubt a waste of time, money, energy and most important it makes a citizen lose faith in judicial process as they seem to move in a vicious circle of cases and mediations and never come close to actual justice. There can be no denying the fact that the Mediators are well qualified lawyers and well conversant with all the laws of the land, however, on a second thought it may be considered that they are officers, i.e. something short of a judge and even the most brilliant lawyer is competent to deal with only specific fields or areas of law
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and since the study of law is so vast no one person can be expected to have knowledge of all the laws. When a case over a particular point of law is taken in the court, the lawyers of both sides do extensive research, find case laws, legal provisions etc and place them before the judge, there are submission of evidences and statement of witnesses and after studying all these materials a judge ascertains the truth and then arrives at a decision, but here in mediation no such material is present before the mediator and the advice given by him is more or less based on the stories chanted by the parties. Thus the advice tendered may be arbitrary and based on false facts and may work to the advantage of one of the party.
SUGGESTIONS
However following suggestion may be considered to make the present mediation process more effective leading to more effective access to justice-
There should be panel of two members on the mediation bench, each comprising of one member who is competent and well qualified practicing lawyer while another member should be a psychiatrist trained in understanding human psychology. This will improve the process of mediation as sometimes what the parties say they say it with certain definite intention behind which they do not disclose. The agreement arrived at by the parties should not be made the end to litigation and once the final agreement is signed it should be referred to the court concerned who would ascertain whether justice has been done to both the parties as in mediation a party may agree to terms adverse to their benefit because of many reasons like pressure of a court case, weak financial condition, emotional attachment, family and societal pressure etc.
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As stated in the high Court rules that mediation proceeding should be concluded with 60days from such referral should be strictly complied with and in case proceeding could not be concluded because of certain inevitable causes strong reasons should be given for the delay, as justice delayed is justice denied. It is generally seen the lawyers of the parties create hindrances in reaching a settlement. Thus the role of the lawyer should be strictly limited to giving of legal advice to their respective parties and during the proceeding only the parties should be allowed to sit.
CONCLUSION
There cannot be a second thought that Mediation is the most helpful means of dispute resolution and a large number of cases are easily resolved by this forum. It plays an indispensable role in clearing the backlogs. Therefore mediation plays a significant role in accelerating the court process. But I would like to state here that one of the most important function of our legal system or infact any legal system, is to render justice, imparting justice is the only function for which judiciary is created and under our constitution the entire set up of courts are created for this purpose and the duty is cast upon the State under article 256 to see that the laws are strictly implemented. The State and the judiciary cannot shrink its duty of rendering justice in pretext of work load or any other cause. The duty is cast upon by our Constitution and State cannot deny this right of every citizen. No doubt mediation is doing a great job but it somewhere sometimes fail to give justice to the parties. The existence of rights become meaningless if they cannot be remedied and we have been given the protection of judiciary for the redressal of our grievances and for the enforcement of our rights. Through mediation disputes are ―resolved‖ but through litigation disputes are ―decided‖ as in the rights of the parties are decided rather than agreed
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and thereby justice is ensured to them, it is an accepted principle that Rights guaranteed under the Constitution cannot be waived by the parties neither can it be restricted through an agreement and the right to legal remedies is granted under Article 14 of the constitution. What lies beneath the acceptance and promotion of modes such as mediation is to a great degree the loss of faith in the state‘s ability to accord justice and also because there is a change in social consciousness and deliverance of justice no more holds a revered position and it is apparent that mediation is designed more to protect and preserve interests and settle disputes rather than uphold law and justice. A solution should be sought to reduce delays in the present judicial process rather than asking the common public to compromise with their rights and defeating the idea of justice guaranteed under our Constitution. ―Justice- Social, Ecocomic and Political.
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PRINCIPLE OF PARTY AUTONOMY IN INTERNATONAL RIYAM OF ARBITRATION
Pallavi Bajpai*
INTRODUCTION
In the International riyam if the parties wish to seek a binding method of resolving dispute through third party they do not have much choice, as there are no International public courts to resolve International commercial disputes. The only recourse available is either to head towards National courts (i.e. litigation) or for private international dispute resolution mechanism. For participants in International trade, the most efficient shelter to resolve their dispute has proved to be through International commercial arbitration (ICA).
One of the prominent Indian writer has expressed1, ―When the International Chamber of Commerce at Paris started offering the services of its Court of Arbitration, businessmen in different countries found it convenient to avail themselves of that facility. In course of time that „convenience‟ became a „preference‟ and the preference has now ripened into a necessity.”
International commercial arbitration has proved to be one of the most efficient and successful mechanism to resolve disputes for participants in international trade. One of the reasons for its fame is the flexible approach towards its procedure. The idea which brings in this flexibility is ―party autonomy‖.
*UGC-NET, LL.M NALSAR University of Law, Assistant Professor, School of Law, ITMU, Gurgaon
1 Palkhivala in his book ―We, The Nation: The Lost Decades‖
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Party autonomy is the heart and soul of International commercial arbitration. This principle dates back its origin to the 19th century2. In ICA parties to arbitration begin from exercising this autonomy at the first step itself which is choosing this forum over litigation, then parties determine what will be the applicable law, rules ,they appoint arbitrators, participate in selection of chairman if any. The strongest evidence of party autonomy is the arbitration agreement itself.
Party autonomy will firstly depend on the choice as to which arbitration rules should they choose and secondly by keeping vigilance during the different stages of arbitral proceedings. As a right or freedom without any restrictions is impossible to imagine, there are certain limitations on this autonomy of the parties too. In order to maintain basic tenents of International arbitration these limitations are must.
In this research paper, Firstly, party autonomy will be explained in the context of International Commercial Arbitration. Following that will be stages and degree of control by parties in International Arbitration. Then analyses of the statutory implications of party autonomy, judicial interpretation on the issue, and limitations on party autonomy and whether these limitations curb the freedom of the parties or it is mandate to maintain the standard of of International Arbitration? This paper aims to answer the above question by understanding the legal framework that governs party autonomy and its limitations. The flexibility of International Commercial Arbitration allows the parties to formulate proceeding according to their wishes. This institute is also a faster, cheaper and less complex method of dispute resolution. But the degree of these benefits would accrue based upon the length, costs and complexity of their issue. For arbitration, there has to be an agreement
2 Dicey, Morris and Collins, The Conflict of Laws, vol 2 (14th edn, Sweet&Maxwell 2010) para 32-004.
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between the Parties that they would solve disputes through arbitration and it is usually in a form of an arbitration clause inserted into the business contract or it can also be through a submission clause. Considering the fact that parties have a say in articulation of the procedure of International commercial arbitration the written rules gives party a leeway. These rights are granted only for the procedure and they cannot infringe on other areas of contract or other ways of solving disputes. There are some tenents which must be upheld over and above this party autonomy principle example the principle of neutrality of procedure, the principle of good faith, the odd number of arbitrators. This brings us to illustrate what exactly is party autonomy.
PARTY AUTONOMY Meaning Autonomy could be said to exist ‗when an individual has the capacity to make a choice among real alternatives and can make the choice for reasons with which he or she is comfortable.‘3It would mean that parties have freedom to frame their contractual relationship in a way they find feasible. Party autonomy is the self-arrangement of legal relations by individuals according to their respective will. Autonomy means ―total independence‖. Here party autonomy would mean control of the parties over the proceedings. It would mean that parties have a substantial control over organising the arbitration but it would not mean conducting it, which in fact is the task of the arbitrators. This control depends on the choice of the parties whether they wish to proceed with Institutional arbitration or ad-hoc arbitration. In Institutional arbitration the procedural framework are already tailored by the institution itself, the only thing parties do, is to state their
3 Matz, D. E., Mediator Pressure and Party Autonomy: Are they Consistent with Each other? Negotiation Journal 10, 4 October 1994, Pg 339-365, Summary by Tanya Glaser.
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will in the arbitration or submission agreement. Whereas in Ad hoc arbitration, the procedural framework made by the parties governs the arbitration. The evidence of this is the ―arbitration or submission agreement‖, which is the path in determining the procedure to be followed in an International arbitration.
There are certain traits of this principle, these are as follows: It is a pillar on which arbitration stands. It is based on the law of contract. It is a ground for the removal of arbitrators. It is a ground for annulment of the award. It acts as an estoppel to the parties. It enjoys national as well as international recognition.
Purpose of „Party Autonomy‟ It preserves the rights of the parties as to what should be the powers of tribunal in relations to the award of interest. It confers the freedom to enter into contractual relationship between parties and between parties and the arbitrator. It boosts confidence in the parties. It maintains predictability as parties can interpret that everything will flow according to the arbitration agreement.
Because of this freedom the parties decide upon applicable laws to arbitration and substance, they decide as to who should be appointed as an arbitrator, the timetable, place, language etc.
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STAGES AND DEGREE OF CONTROL BY PARTIES
1st Stage: Negotiation of arbitration clause
Parties who are negotiating a contract choose a dispute resolution mechanism which is arbitration by signing a transaction. In this stage it is easy for the parties to decide and agree upon various elements regarding the governing of arbitration as the conflict has not yet arisen.
At this stage parties dominate the autonomy over the procedure. The most crucial question at this stage is what will be the rules of arbitration. This choice has its implications on the degree of control by parties. They have to either opt for institutional arbitration or ad-hoc arbitration.
The next choice to be made is what will be the place of arbitration; this choice has to be made very carefully because firstly the legal structure of the place of arbitration sets the minimum procedural perquisites and secondly the national courts acquires jurisdiction to settle procedural defects such as annulment of award ,challenges to arbitration.
2nd Stage: Arising of the dispute, selecting arbitrators
The first choice to be made at this stage would be appointing a lawyer to advice, this choice makes feasible not only to retrospect the issues of procedure, but estimating the liability and even choice as to implicit arbitrator.
The lawyers bring in chances of procedural compromises, which at times are very lucrative. For example cost can be brought down by agreeing on a sole arbitrator, at the same time even by deciding the deadlines to reach a decision cuts expenses.
These facts contribute towards greater party autonomy. Taking about the last unilateral act of the parties which would be the choice of co-arbitrator.
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If the party chooses an arbitrator who is experienced and well versed in the procedural rules to be applied in the arbitration proceedings, parties tend to have greater autonomy in relation to it.
The procedural issues like choosing the chairman, time for preparation, raising of new issues, factual testimony, legal arguments, post –hearing beliefs and time for an award are important aspect of party control which is exercised at this level, by selecting the right choice of arbitrator.
3rd Stage: The Hearings
This stage caps the duration between the signature of terms of reference and the date on which the award will be rendered, at this stage party loses its autonomy and the tribunal acquires paramount autonomy.
4th Stage: Enforcement, Annulment and Settlement
After the tribunal delivers the award, it ceases to have any legal control, except for minor rectifications. It is now for the parties to take up the autonomy from here, and they have to either opt to comply with the award or resist enforcement by seeking to annul it.
However the national courts usually are in this obedient habit of respecting and upholding the arbitral award, annulling it is very limited, it can only be done where arguments are raised as to procedure, public policy or jurisdiction etc.
STATUTORY ANALYSIS OF PARTY AUTONOMY
Party autonomy has been recognised and even incorporated in various National laws as well as International treaties and rules on arbitrations. This principle has been confirmed by the International Law Institute Resolution
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dealing with International arbitration concerning state parties4, where it was stated;
“The parties have full autonomy to determine the procedure and substantive rules and principles that are to apply in the arbitration. In particular, 1) a different source may be chosen for the rules and principles applicable to each issue that arises and 2) these rules and principles maybe derived from different national legal systems as well as from non- national sources, such as principles of International law, general principles of law and the usages of international commerce.”5 This principle is acknowledged as a right itself because of its universal recognition. In countries like Germany it is a right which is constitutionally guaranteed, while in European Union, it is a part of general principles.6
Party autonomy under New York convention This treaty basically deals with the enforcement of foreign arbitral award. It acknowledges principle of party autonomy and recognises it in the written agreement made by the parties where they wish to submit to arbitration all or any of their differences7. For example it denies the enforcement of an award if the composition of tribunal is not according to the agreement of the parties. The agreement is essential for recognition and enforcement of award, when the party applies for recognition and enforcement it is mandatory that the original agreement or a duly certified copy must be supplied to the court8. (As referred to in article II)
4 On September 13, 1989 (XVI YBCA 236 (1991) 238.) 5 Ibid, Art.6. 6 Dagmar, Coester-Waltjen., supra note 8. 7 New York Convention, Art.II.1. 8 Ibid, Art.IV (1) (b).
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There are certain grounds for non-recognition and no enforcement of award under New York convention one of them is a limitation to the principle of party autonomy which is public policy9.
Party autonomy under UNCITRAL Model Law
UNCITRAL Model law was formulated to bring reforms in the New York convention. Initially it adopted the party autonomy principle without any opposition10.It has been stated that ―Subject to the provisions of this law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings‖11 and that ―in matters Governed by this law, no court shall intervene except where so provided in this law,‖12 confirming the principle of party autonomy.
UNCITRAL Model law also states that the tribunal shall deliver and decide the dispute in accordance to the law chosen by the parties.
UNCITRAL from its inception has worked in a direction which leads towards improving the enforceability of arbitral awards and removes hindrances in the path towards recognition. It has set of rules which serve as a guide for the parties to be in streamline with the arbitration process. In other words model law is a comprehensive document which governs the arbitration agreement, its composition, jurisdiction, conduct of the proceedings etc. The Model law does not intend to grant unfettered autonomy to the parties in relation to the conduct of arbitration. It wanted to give an autonomy which could be balanced with the safeguards, which is in the form of
9 Ibid, Art (2) (b). 10 See UN Doc. A/CN.9/207, Para. 17:‖… probably the most important principle on which the model law should be based is the freedom of the parties in order to facilitate the proper functioning of international commercial arbitrations according to their expectation.‖ 11 UNCITRAL Model Law, Art.19 (1). 12 Ibid, Art.5.
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mandatory provisions that could not be derogated, as they are considered essential tenents of this regime. However there is no such strict delineation between the mandatory norms and non-mandatory, but there are a couple of them which have proved to be mandatory over the period of time.
Provisions which seem to be mandatory somewhere caste a limitation upon the party autonomy, some of the provisions are:
That the arbitration agreement must be in writing13. That the parties should be treated with equality and each party should be given full opportunity for presenting his case14. That party must be given notice regarding every hearing and requisite material must be supplied to the tribunal by the other party15. That award shall be in writing which should specify the date and place. It should also be delivered to the parties16.
The model Law includes many articles having phrases like ―unless otherwise agreed by the parties‖. These phrases display the non-mandatory attribute of these articles.
Article 19 provides for the determination of rules of procedure which is as follows:
“(1) Subject to the provisions of this Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. (2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct the arbitration in such manner as it
13 Art. 7 (2) of UNCITRAL Model Law 14 Art. 18 of UNICITRAL Model Law 15 Art. 24 (2), (3) UNITRAL Model Law 16 Art. 31 (1),(3), (4) UNITRAL Model Law
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considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”
Parties can conclude their agreement as per their choice but the only limitation here would be that the agreement must not be in conflict with any mandatory provisions. So it is a need of an hour that there should be clarity as to mandatory provisions which are non- derogable.
Article 34 (2) of the Model Law reads: “An arbitral award may be set aside by the court specified in article 6 only if: (a) The party making the application furnishes proof that: (iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Law.”
There is no certainty as to issues which are mandatory and if there is uncertainty regarding future of the procedure to be followed in arbitration, as to whether it would be hit by a mandatory provision or not it would definitely lead to curtailment of party autonomy.
LIMITATIONS ON PARTY AUTONOMY
As stated earlier also that autonomy of party is not unfettered, there are certain restrictions cast upon them. They are as follows:
EQUALITY TREATMENT THIRD PARTY
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ARBITRATION AGREEMENT ARBITRABILITY INSTITUTIONAL ARBITRATION PULIC POLICY
Equality Principle:
The parties are autonomous enough to agree upon their own conduct of arbitration, but it cannot be done by infringing the provisions relating to equal treatment of parties. While pen downing the arbitration agreement either party can abuse its choice by imposing unfair procedural terms and conditions. At times the rules chosen by the parties can be interpreted in such a way that it leads to unfair treatment, so here it becomes the duty of arbitrators and even National courts to maintain the basic attributes of the Institution of arbitration and restrict party autonomy .If the technical rules which relates to equality of parties such as presenting the case, notice of hearings, cross –examination, information regarding the material being presented are not followed or are restricted by the party agreement ,such agreements are void and have no validity.17 This restriction is widely accepted. The New York Convention18 and UNICITRAL 19also recognise it as a mandatory provision which should not be derogated.
Third Party:
The arbitration agreement can only be enforced against the parties constituting it i.e. parties cannot agree on anything which has implications on third parties 20.Even the tribunal has got no rights to call upon third parties either to act as witnesses, or for production of documents or to pay a
17 Redfern and Hunter, para 6.11. 18 New York Convention, Art V (1) b 19 Model Law, Art 18. 20 Redfern and Hunter, para 6.19
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sum etc.; although there is an exception to this restriction for the tribunal. The tribunal can acquire such a right after the approval and assistance of national courts.
Arbitration Agreement:
The agreement which gives autonomy to the parties acts also like a restriction. Whatever agreed upon in the agreements binds them and later they cannot deviate from it.
Arbitrability:
Arbitrability means whether an issue is appropriate for subjecting it to be resolved by arbitration or whether it is capable to be resolved by arbitration. However this is purely a concern for a legal domain, therefore it is definitely a limitation on autonomy of the parties. Suppose there is an issue which is non-arbitrable then the arbitration agreement will lose its validity and will be void. Certain issues like family and criminal law are subject to national courts and so can‘t be subject matter of arbitration even if parties wish to. Therefore the tribunal will have no jurisdiction over it. Non- Arbitrability can be one of the reasons under the lex-arbitri for setting aside the award.
In HDFC Bank case21, the High Court of Delhi gave noteworthy guiding principle as to what is arbitrable and what not under an arbitration agreement. It laid down that disputes concerning to „rights in personam‟ are arbitrable and parties have autonomy to go for arbitration as an alternative, on the other hand disputes concerning to „rights in rem‟ which have public interest are not subject to arbitration and are not arbitrable.
21 HDFC Bank v. Satpal Singh Bakshi, 2012
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Institutional Arbitration:
This is another limitation on party autonomy. If the parties chooses institutional arbitration over ad-hoc arbitration , the freedom to frame procedural rules gets subjected to the pre-designed norms of the Institution being chosen, it would be difficult rather impossible for an institution to agree for rules of some other institution.
Public Policy:
The last but not the least is the most encountered restriction which is public policy. This restriction owes its existence to the concept of state sovereignty, thus every state can demarcate the boundaries within which arbitration can take place.
Public policy is subject to no precise definition .But it can be said that it refers to the minimum rules to which parties have to adhere. This concept depends on the cultural, social and economic tradition of each country.
Usually, the arbitral tribunal when refers to public policy, it is morals, equity laws of the country, where the award is likely to be enforced.22But such an attitude is not encouraged 23 as implications of international arbitration are much more than that of domestic arbitration, infact public policy of all nations should be respected and kept in mind.24
It is basically a protective measure for the society at large that they should not violate some fundamental principles which come under the framework of public policy, infact it is an attempt to stop parties from drawing contracts which are illegal.
22 Model Law, Art 36 (1) (b) (ii); New York Convention, Art V (2) (b); English Arbitration Act, s 103 (3). 23 Fouchard, Gaillard and Goldman, International Commercial Arbitration (Kluwer Law International, 1999) 24 Engle, 342.
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Public policy enables a judge to deny enforcement and recognition of award if he thinks that it contradicts with the fundamental tenents of the legal system where the award has to be enforced.
In Mastrobuonu v Shearson Lehman Hutton Inc.25, the U.S Supreme Court held “parties are generally free to structure their arbitration agreement as they see fit…but albeit with certain limitation.”
In Peh Teck Quee v Bayerische Landesbank Girozentrale26 , the court of appeal of Singapore held “that parties can use their autonomy to draft an agreement but where the enforcement of such agreement is contrary to public policy, it will be declared void at that point”.
As we know nothing in this world is for free, if the parties wish to perform their autonomy in relation to the arbitration agreement there are certain limitations which they are required to strictly adhere to.
JUDICIAL INTERPRETATION
Party autonomy was not whole heartedly accepted by the courts earlier as they considered it as a menace to their jurisdiction. They were afraid that such a principle would restrict the jurisdiction of judges. Although Judges in England had a positive attitude towards this principle but judges in other states like Switzerland curtailed the autonomy of the parties to an extent.27
Courts in India always wanted to have a hold over the national parties heading for arbitration be it in India or even outside, This attitude however was in conflict with the party autonomy principle, but a recent BALCO
25 514 US 52, 55 (1995). 26 [2000] ISLR 148 (CA). 27 Ruhl, G., Party Autonomy in the Private International Law of Contracts: Transatlantic Convergence and Economic Efficiency (CLPE Research Paper, Law Research Institute Research Paper Series,Vol.03 No.01,April 2007)
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judgement shows a changed promising and open minded attitude of Indian judiciary . Though have shown respect towards the arbitration agreement; they do not allow parties to take refuge in litigation once they make their choice to head with arbitration. Court has always born this attitude that except in certain circumstances, it will not interfere in the arbitral proceedings. Some of the Indian cases supporting the party autonomy principle are enumerated below.
In Rodemadan case28 the Supreme Court honoured the arbitration agreement made by the parties and even preceded to appoint the presiding arbitrator by upholding the validity of the arbitration agreement.
Similarly, in Sedco Forex case29 the Supreme Court upheld the petition regarding the arbitration clause and appointed the arbitrators.
In Kamdhenu Cooperative case30, the Delhi High Court observed that: “It is not a case where the respondent was not aware of the Arbitration proceedings but for the reasons best known to the respondent, respondent chose not to contest the matter…In my considered view the respondent deliberately took an uncooperative stand in deciding to stay away from the Arbitration proceedings and must bear the consequence thereof”.
The Delhi High Court in A – One Alums case31 took a strong stand for party autonomy and held: “This court cannot re- appreciate evidence as it is not
28 Rodemadan India Limited v. International Trade Expo Centre Limited, Supreme Court of India, Arbitration Petition 25 of 2005, decided on April 17, 2006 29 Sedco Forex International Drilling Inc. v. Oil and Natural Gas Corporation Limited, Supreme Court of India, Arbitration Petition 1 of 2006, decided on April 20, 2006 30 Kamdhenu Cooperative Group Housing Society Limited v.Messrs Vardhman Contractors and Builders Private Limited and Another, Delhi High Court, Cs (Os) No.2458A of 1996, decided on February 16, 2006 31 Messrs A-One Alums Private Limited v. Messrs Chemcon Fabricators (Delhi) Private Limited, Delhi High Court, Cs (Os) No.930A of 1997, decided on February 16, 2006
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an appellate authority. It is not the function of this court to differ with the award even if this court was to come to a different conclusion on the same set of facts. The parties have chosen the forum of arbitration and the arbitrator is the designated person to decide the disputes”. Thereby the court made it very clear that parties which pursue arbitration as a dispute resolution mechanism should get their issue resolved by that arbitration only. A controversial judgement of Supreme Court32 which had put fetters on the autonomy of the parties participating in arbitration has been recently turned down.
In Bhatia case, the Supreme Court ruled that part I of the Indian Arbitration Act was applicable to all kinds of arbitration whether domestic or national, unless parties exclude it by an agreement. This judgement meant that the Indian court could have jurisdiction for granting interim relief under section 9 and even to set aside the award under section 34 of the act. Thus giving extensive leeway on substantive issues even when seat of arbitration was not in India. The resent decision of supreme court in Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc.33has limited the participation of Indian courts in International arbitration, where seat of arbitration is outside India this judgement reflects a brighter attitude towards party autonomy principle as the judgement upholds autonomy of parties and territoriality as under UNICITRAL Model Law. This judgement comes close in vicinity with the International counterparts. This BALCO decision is likely to go down in the archives of arbitration reports as the watershed judgement which heralded a new era for Indian arbitration.
32 Bhatia International v. Bulk Trading S.A. & Anr, (2002) 4 SCC 105 33 Bharat Aluminium Co. v. Kaiser Aluminium Technical Service, Inc.,2012
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CONCLUSION
If we fancy international commercial arbitration as a movie, then the principle of party autonomy would be the director of this movie, because it the director who selects the cast, the situation and other details regarding the movie. In the same way, here referring to party autonomy, it is the parties who choose the laws which shall be applicable, who shall be the arbitrators, the language of the proceedings, the place of arbitration etc.
In other words it can be said that by virtue of this principle the parties get this freedom to regulate the essential attributes of an arbitration proceedings. Today it would not be wrong to assert that party autonomy is a sine qua non for International commercial arbitration.
The principle of party autonomy is based on the freedom to contract. The extent this freedom depends upon the stage in which they are, staring from negotiating the agreement till the passing of the award.
However this freedom is not absolute, it has certain limitations attached to it, which in turn maintains the uniformity and standard of the institution of arbitration. These restrictions are equal treatment towards parties, restriction as to third party, the arbitration agreement; the Arbitrability of the issue, institutional rules and the most important is public policy.
As arbitration is a private settlement of dispute, parties can exercise their autonomy subject to these restrictions. These limitations do not abuse the freedom of the parties but In fact it is the knot that keeps the arbitration intact. If unlimited autonomy would have been granted then it would lead towards total chaos and the shadow of justice which follows arbitration would be lost somewhere. Unlimited freedom is a myth because it is improbable for the parties to have similar negotiating power or be equal
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economically or logically, which is the reason why there are limitations to this freedom.
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CHILD LABOUR LAWS IN INDIA- A CRITICAL EVALUATION
Priya R*
“To enable fathering of a valiant and vibrant man, the child must be groomed well in the formative years of his life. He must receive education; acquire knowledge of man and materials and blossom in such an atmosphere that on reaching the age, he is found to be a man with a mission, a man who matters so far as the society is concerned.1”
Introduction
Childhood is the age of learning. It is the time; one acquires new knowledge and skills. Education to children in this age is vital to develop character and abilities. Right to education is a fundamental right in India. But the recent census of 2011 shows that about 43.5 lakhs children in the age group of five to fourteen are working2. Using children as labourer‘s will deprive them access to social opportunities like education, impairs the personality and creativity, the evolution and growth of full being and the health and the mental development of the child3.
Child Labour
The term ‗child labour‘ is defined as a work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. The term child labour is interpreted in two ways – as an economic practice and as a social evil. As an economic evil, it means
*Lecturer (Guest) Govt. Law College, Ernakulam, Kerala 1 Supreme Court on M.C Mehta v State of Tamil Naidu ,1996 (6) SCC 756 2 Available at http://labour.gov.in/upload/uploadfiles/files/Divisions/childlabour/Census- 2001%262011.pdf, Last accessed on 28th September 2013, 9:30 am 3 Bupinder Zutshi, Mondira Dutta & Sudesh Nangia , “In the name of Child Labour , Eradication and Evaluation Programme”, Shipra Publications, New Delhi, 2002, Page 24
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employment of children in gainful occupation with a view to add to the income of the family. To explain it as a social evil, the nature, the extent, the dangers of the job to which the children are employed is to be considered4 .Child Labor means ―any work by children that interfere with their full physical and mental development, the opportunities for a desirable minimum of education and of their needed recreation5‖.
Causes and Types of Child Labour
The causes of child labour6 includes poverty, illiteracy and ignorance of Parents, unemployment, over population, war, low wages of the adult, absence of schemes for family allowances, migration to urban areas, children being cheaply available and non enforcement of the provisions for compulsory education. Child labour may be two types -7Productive and Consumptive child labour.
Productive child labour
In Productive Child labour, the child worker in the family is provided process of learning the skills for a particular trade or craft. This helps the child to be a reasonably proficient craftsman or a skilled worker. Thus the childhood labour, paid or unpaid, might become an investment for at least a modest future. This category of child worker, without interfering with schooling (formal or non formal), recreation and rest cannot be viewed as exploitive.
4 V.V.Giri, ‗Child Labour‖, Chapter 21, Page -173 - Usha Sharma, ―Child labour in India”, Mittal Publications , 2006 5 Haks, the chairman of the US National Child Labour Committee 6 See Dr.J.C.Kulshreshtha, ‗India Child Labour‘,chapter III, quoted in M.C.Mehta v State of Tamil Naidu, AIR 1997 SC 699 at 708-709 7 Id
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Consumptive child labour
In Consumptive child labour, the child is used purely for profit motive, either by the family or by the society. Child labour is used in various kinds of manual work or mental services. Such children are torn off from their family, community life and natural environment. The consumptive child labour could be further classified into categories like domestic work8, non- domestic,non-monetary Work9 ,bonded child labour10, commercial sexual exploitation11 and wage labour (industrial, plantation and street work)12
LEGISLATIVE MEASURES TO CURB CHILD LABOUR
The origin of statutory protection of child labour in India can be traced back to the Indian Factories Act, 1881. This law is mainly regulated working hours, rest intervals, minimum wages and nature of work of child labour but it does not prevented the employment of children. Later on the Children Act, 1933 was enacted to prohibit the pledging of labour of children below 14 years by parents. In 1938 the Employment of Children Act was enacted to prohibit the employment of children below the age of 14 years in specified
8 Id This includes the job undertaken by children, which is unpaid work for the maintenance of the household, thus allowing their parents to go out and work as wage laborers. Caring for younger siblings, cooking, cleaning, washing, fetching water etc.
9 Boys, in the rural areas from the age 6 onwards are usually engaged in family tasks like looking after the cattle, grazing goats, collecting fodder and scaring away birds.
10 The principle factor is the pledging of children against a loan (large or small) or an agreement between the child‘s parents and the employer, whereby the child would work throughout its life in exchange for money or food.
11 Girls are lured or forced into this form of labour, which can verge on slavery. Agents act as procures for city brothels.
12 Children are preferred to adults, because of low wages, docile nature, and pliability and for non-compliance of labour laws. The work nature in industries includes highly hazardous woks like carrying molten matter, working in furnaces with temperature of 1500 to 1800 degree Celsius.
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hazardous occupations. This Act specifically prohibits the employment of children below 14 years of age in the railway and other means of transport.
The Post-Independence Child Labour Laws in India starts with the Factories Act, 1948.13 Other laws includes the Plantation Labour Act, 195114, the Mines Act, 195215 , the Merchant Shipping Act, 195816, the Motor Transport Workers Act, 196117, the Apprentices Act, 196118 , The States Shops and Establishments Act19 and The Beedi and Cigar Workers (Conditions of Employment) Act, 196620 . Only in 1986 a specific law relating to child labour called the Child Labour (Prohibition and Regulation) Act, 1986 was passed.
13 Section 67 of the Factories Act, 1948 reads as ―No child who has not completed his fourteenth year shall be required or allowed to work in any factory”
14 Section 24 of the Plantation Act reads as -―No child who has not completed his twelth year shall be required or allowed to work in any plantation” 15 Section 45 of the Mines Act , 1952 reads as Prohibits of the presence of persons below eighteen years of age in a mine- ―(1) No child shall be employed in any mine , nor shall any child be allowed to be present in any part of mine which is below ground or in any open cast working in which any mining operations being carried on‖-
16 Section 109 of Merchant Shipping Act, 1958 reads as -―No person under fifteen years of age shall be engaged or carried to sea to work in any capacity in any ship, except-(a) In a school ship, or training ship, in accordance with the prescribed conditions; or (b) In a ship in which all persons employed are members of one family; or (c) In a home-trade ship of less than two hundred tons gross; or (d) Where such person is to be employed on nominal wages and will be in charge of his father or other adult near male relative‖.
17 Section 21 of the Motor Transport Workers Act, 1961 reads as ―No Child shall be required or allowed to work in any capacity in any motor transport undertaking”.
18 Section 3 of the Apprentices Act, 1961 provides Qualifications for being engaged as an apprentice- “A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he- (a) Is not less than fourteen years of age and (b) Satisfies such standards of education and physical fitness as may be prescribed. Provided that different standards may be prescribed in relation to apprenticeship training in different designated trades and for different category of apprentices‖.
19 The states shops and establishment Act prohibits the employment of children in shops, commercial establishments, restaurants, hotels, etc. the age of children varies from 12 to 15 years.
20 Section 24 of the Act reads as ―No child shall be required or allowed to work in any industrial premises”.
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Child Labour (Prohibition and Regulation) Act, 1986
The Child Labour (Prohibition and Regulation) Act, 1986 was enacted with a view to rationalize the earlier legislations on child labour , progressive elimination of child labour on hazardous employments , and regulating condition of child labour in non-hazardous industries. The Act defines child as a person who has not completed his 14th year of age21.The Act prohibits employment of children in thirteen occupations22 (now fourteen after the Gazette Notification, 200623) and processes contained in Part A24 and B25 of
21 Section 2 (ii) of the Act 22 Section 3 of the Act 23 The notification says that the following occupations are to be added to Part A ―Occupations‖ :-( 14) Employment of children as domestic workers or servants ;( 15) Employment of children in the dhabas (road –side eateries) restaurants, hotels, motels, tea- shops, resorts, spas or other recreational centers‖. 24 Occupations such as Transport of passengers, goods or mails by railways; Cinder picking, clearing of an ash pit or building operation in the railway premises; Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from the one platform to another or in to or out of a moving train; Work relating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway lines; A port authority within the limits of any port; Work relating to selling of crackers and fireworks in shops with temporary licenses; Abattoirs/Slaughter House; Automobile workshops and garages;Foundries;Handling of toxic or inflammable substances or explosives;Handloom and power loom industry;Mines (underground and under water) and collieries; Plastic units and fiberglass workshops.
25 Processes like Beedi-making. Carpet-weaving,Cement manufacture, including bagging of cement, Cloth printing, dyeing and weaving, Manufacture of matches, explosives and fire- works, Mica-cutting and splitting,Shellac manufacture,Soap manufacture,Tanning,Wool- cleaning, Building and construction industry, Manufacture of slate pencils (including packing), Manufacture of products from agate, Manufacturing processes using toxic metals and substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos. ―Hazardous processes‖ as defined in Sec. 2 (cb) and ‗dangerous operation‘ as notice in rules made under section 87 of the Factories Act, 1948 (63 of 1948), Printing as defined in Section 2(k) (iv) of the Factories Act, 1948 (63 of 1948), Cashew and cashew nut descaling and processing, Soldering processes in electronic industries, ‗Aggarbatti‘ manufacturing, Automobile repairs and maintenance including processes incidental thereto namely, welding, lathe work, dent beating and painting, Brick kilns and Roof tiles units, Cotton ginning and processing and production of hosiery goods, Detergent manufacturing, Fabrication workshops (ferrous and non ferrous), Gem cutting and polishing,Handling of chromite and manganese ores, Jute textile manufacture and coir making, Lime Kilns and Manufacture of Lime, Lock Making, Manufacturing processes having exposure to lead such as primary and secondary smelting, welding and cutting of lead-painted metal constructions, welding of galvanized orzinc silicate, polyvinyl chloride, mixing (by hand) of crystal glass mass, sanding or scraping of lead paint, burning of lead in
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the Schedule of the Act. The Act deals with the creation of a Child Labour Technical Advisory Committee26 to advice the Central Government for inclusion of further occupations and processes in the Schedule. Act also specifies the time limit27 for which a child can be emoployed.
Each child employed in any establishment shall be allowed in each week, a holiday or one whole day which shall not be altered by the occupies more than once in three months28. The Act provides for furnishing of information by the occupier regards employment of a child labour to Inspector29. The act requires the Government to make rules for the health and safety of the child30. The Central Government and the State Government is entrusted with the task to enforce the provisions of the Act.
enameling workshops, lead mining, plumbing, cable making, wiring patenting, lead casting, type founding in printing shops. Store type setting, assembling of cars, shot making and lead glass blowing, Manufacture of cement pipes, cement products and other related work, Manufacture of glass, glass ware including bangles, florescent tubes, bulbs and other similar glass products.Manufacture of dyes and dye stuff.Manufacturing or handling of pesticides and insecticides.Manufacturing or processing and handling of corrosive and toxic substances, metal cleaning and photo engraving and soldering processes in electronic industry.Manufacturing of burning coal and coal briquettes.Manufacturing of sports goods involving exposure to synthetic materials, chemicals and leather.Moulding and processing of fiberglass and plastic.Oil expelling and refinery.Paper making.Potteries and ceramic industry.Polishing, moulding, cutting, welding and manufacturing of brass goods in all forms.Processes in agriculture where tractors, threshing and harvesting machines are used and chaff cutting.Saw mill – all processes.Sericulture processing.Skinning, dyeing and processes for manufacturing of leather and leather products.Stone breaking and stone crushing.Tobacco processing including manufacturing of tobacco, tobacco paste and handling of tobacco in any form.Tyre making, repairing, re-treading and graphite benefication.Utensils making, polishing and metal buffing.‗Zari‘ making (all processes)‘. Electroplating;Graphite powdering and incidental processing;Grinding or glazing of metals;Diamond cutting and polishing;Extraction of slate from mines;Rag picking and scavenging. 26Section 5 of the Act The Committee shall consist of a Chairman and such other members not exceeding ten, as may be appointed by the Central Government.Thae Committee may, if it deems it necessary so to do, constitute one or more sub-committees .
27 Section 7 of the Act provides Hours of work on each day as three hours and rest for at least one hour. 28 Section 8 of the Act 29 Section 9 of the Act 30 Section 13 of the Act
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Drawbacks in the Act
The major loophole in the Act was that it covers the child in the organized sector and not, the 90 % working in the unorganized urban, rural sector and family units. Many occupations which are hazardous are not included. The Act does not specify the minimum age of employment of children in processes and occupations where the child labour is not prohibited31.the Act forgot about domestic labour which forms the largest number of working children.
Constitutional Safeguards for the Prevention of Child labour
Our Constitutional Framers had known that India of their vision would not be a reality if the children of the country are not nurtured and educated. So they incorporated relevant provisions in the Constitution for the welfare of children. Article 21 A provides Right to Education32 of children within the age of 6-14 years, Article 2433 prohibits Employment of Children in Factories, Article 39(e)34 and (f)35 entrust the State with the duty to direct its Policy towards securing the health and strength of the workers and Article 4536 provides for free and compulsory education for children till the age of
31 Supra note FN 5 , page 38 32 Article 21 A inserted by the Constitution (Eighty –Sixth Amendment) Act, 2002. Article 21 A reads as “The states shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the state , by law, may determined 33 Article 24 reads as “No Child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment”. 34 Article 39(e) states that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
35 Article 39(f) states that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
36 ―The State shall endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education until they complete the age of fourteen‖.
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fourteen. Article 51A (K) 37 of the constitution makes it the duty of parents or guardian to provide education to the child who are between 6-14 years.
Right to Free and Compulsory Education Act, 2009
This Act promises right to free and compulsory education to every child between the age group of 6-14 years of age group38. The central government and the state government are entrusted with the responsibility of funding the provisions of the Act39. The term compulsory education is defined in the Act as the obligation of the appropriate government to provide free and compulsory education to every child of the age of six to fourteen years and to ensure compulsory admission, attendance and completion of elementary education by every child of age of six to fourteen years40. The Act also ensures that children belonging to weaker section and disadvantaged group are not discriminated against and prevented from pursuing and completing elementary education on any grounds41.there shall be no capitation fee or screening procedure for admission to any school42. The Act also prohibits physical punishment and mental harassment to child43. The National and the state commissions for protection of child right‘s are also entrusted with functions of monitoring child‘s right to education44 . They can also enquire complaints under the Act. A national and a state advisory council can be constituted by the concerned government for the implementation of the Act.
37Article 51 K reads as ― it shall be the duty of every citizen of India who is parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years‖. 38 Section 3(1) of the Act 39 Section 7(1) of the Act 40 Section 8 of the Act 41 Section 8 ( c) of the Act 42 Section 13(1) of the Act 43 Section 17 (1) of the Act 44 Section 31 of the Act
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Judiciary on Child labour
The issue of child labour has been raised before the Supreme Court on many occasions. In fact, in every case relating to construction workers, migrant labour, bonded labour, child labour is mentioned.
Salal Hydro Project v. Jammu and Kashmir The Court has reiterated the principle that the Construction work is hazardous employment and Children below 14 cannot be employed in this work45.
M.C.Mehta v. State of Tamil Naidu and Others One of the leading cases on child labour is the case of M.C.Mehta v. Union of India, pertaining to children working in the cracker industry in Sivakasi, Tamil Naidu. There are two judgments relating to children working in this industry. One in 1990 and the other in 1996. In the first case, court held that employment of children within the match factories directly connected with the manufacturing process up to final production of match sticks or fireworks should not at all be permitted46. Children can be employed in the process of packing but packing should be done in areas away from the place of manufacture to avoid exposure to accident. Court also directed state to provide special facilities should be permitted for improving the quality of life of children like education, recreation, medical attention, creation of a welfare fund and a compulsory insurance schemes for the adult and children employees.
45 AIR 1984 SC 177 46 1990 (1) SCC 283
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M.C.Mehta v. State of Tamil Nadu and Others In this judgment, the honorable Supreme Court has given directions, regarding the manner in which the children working in hazardous occupations are to be withdrawn from work and to be simultaneously rehabilitated47like (1) Survey for identification of working children should be done (2) Withdrawal of children working in hazardous industry and to impart Free and compulsory education for children below 14 years of age (3) To pay a compensation of Rs. 20000 for every child employed from in contravention to Child Labour (Prohibition and Abolition) Act, 1986 and a matching contributes of Rs.5000/- by the state to compensate the family of the child against loss of income. This fund is called ―Child Labour Rehabilitation –cum-Welfare Fund‖. (4) Employment of one adult member of the families of the children so withdrawn from work and it that is not possible a contribution of Rs.5, 000/- to the welfare fund to be made by the State Government (5) Financial assistance to the families of the children so withdrawn to be paid -out of the interest earnings on the corpus of Rs.20,000/25,000 deposited in the welfare fund as long as the child is actually sent to the schools; (6) Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured. The entire expenditure on education is to be borne by the concerned employer.
People‟s Union for Democratic Rights v. Union of India In this case Public Interest Litigation was filed 48 to protect children under the age group of 14 years in the construction works for Asian Games. Court directed union of India and every state government to ensure that no child below the age of 14 years is appointed in construction of India.
47 1996 (6) SCC 756 48 (1982) 3 SCC 235; AIR 1982 SC 1473
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Banhhua Mukthi Morcha v. Union of India
This Writ Petition was filed to take steps to stop employment of children in carpet industry in the State of Uttar Pradesh49.Court directed the central and state Governments to take steps to eliminate child labour like (1) compulsory education to all children either by the industries itself or in co- ordination with it by the State Government to the children employed in the factories, mine or any other industry, organized or unorganized labour with such timings as is convenient to impart compulsory educations, facilities for secondary, vocational profession and higher education; (2) Apart from education, periodical health checks-up(3) Nutrient food and to(4) Entrust the responsibilities for implementation of the principles.
Bachpan Bachao Andolan v. Union of India and Others
In this case the petitioners challenged the child trafficking in circuses50. The court directed the central government to ban such employments and promoted right to education among them
Conclusions and Suggestions
Law has done its best for the prevention of child labour and for the protection of children. But still Child Labour is a threat for the country. Even though, the Right of the Children to Free and Compulsory Education Act, 2009 promises free and compulsory education as a right of every child in the age group of 6-14 years of age, it is still in vain. More and more efforts are needed so as to eradicate the evil of child labour and to help all the children to enjoy the fruits of education.
49 (AIR 1997 SC 228) 50 (2011) 5 SCC 1
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Suggestions 1) First need is for a uniform definition of the term ―Child‖. Laws differs each other in defining the term ‗child‟. 2) Steps are needed to eradicate Poverty and providing adequate living conditions for the people. 3) Unemployment is the main reason behind child labour. Adequate job opportunities shall be created 4) Education shall be provided through various agencies. So that the children who cannot come to school could access it. 5) There shall be wide spread propaganda about the right of children to free and compulsory education 6) Speedy disposal of the cases of child labour and severe penalties should be imposed on those who promote child labour 7) Rehabilitation of displaced or rescued children is essential 8) The Child Labour (Prohibition and Regulation ) Act should be amended so as to include more industries in Section 3 9) Education should be Job-Oriented 10) The involvement of NGO‘s, social organizations, local bodies and Media is needed to create awareness about the problem of child labour and about children‘s rights.