International Journal of Socio-Legal Research 1 Volume 1 | Issue 1 | ISSN- 2393-8250
THE APPLICATION OF INTERNATIONAL HUMANITARIAN LAW AND INTERNATIONAL HUMAN RIGHTS LAW IN INTERNAL ARMED CONFLICTS IN SUB – SAHARAN AFRICA: A SYMBIOSIS OR SYNTHESIS*
I. INTRODUCTION Armed Conflict is one of the principal causes of the plight of Sub-Saharan Africa today. Conflicts in Africa have caused massive death and destruction, uprooting of the populations, and erosion of social capital. The factors that have sparked these conflicts range from poverty, struggle for scarce resources, rapid economic modernization, ethnic rivalries, religious intolerance, bad governance and misuse of resources, arbitrary national boundaries imposed by colonial powers, political-military groups by outside powers, erosion of the international architecture created during the Cold War to the lack of democracy and human rights and high-level of corruption. Armed conflicts in Sub Saharan Africa have - along with large population of displaced people and refugees and HIV/AIDS pandemic - been identified as a major factor in slowing down the achievement of the Millennium Development Goals (MDGs). The resources spent on warfare could, if redirected, make a significant contribution to addressing the MDGs and other developmental challenges. Above all, there is usually wanton cruelty, savagery, brutality and ruthlessness in the prosecution of wars. The rampancy of civil or intertribal wars, the level of prosecution and degree of harm inflicted on both combatants and non-combatants were quite blood ______*‘Yomi Olukolu, Esq., LL.M, M.Phil, Lecturer, Department of Jurisprudence & International Law, Faculty of Law, University of Lagos, Akoka, Lagos, Nigeria. [email protected]. International Journal of Socio-Legal Research 2 Volume 1 | Issue 1 | ISSN- 2393-8250
chilling. Even though the protection of human dignity has been the core value of both the Human Rights Law and International Humanitarian Law, the classical view in international law is that humanitarian law operates in situations of armed conflict while human rights law operates in peacetime. This paper, however, posits that both human rights law and humanitarian law derive from the basic principle that the individual is entitled to certain minimum rights whether in peace or in war time. He is entitled to protection, security and respect. If wounded or captured, he is entitled to care and humane treatment, if dead, his body is entitled to decent treatment. Hence, both laws are complementary to each other especially in situations of armed conflicts. International humanitarian law, however, aims at regulating the conduct of wars by regulating the combatants during warfare and restraining belligerents from wanton cruelty and ruthlessness and providing essential protections to those directly affected by war. International humanitarian law therefore seeks to regulate and mitigate the conduct of armed conflicts. Its aim is to protect the victims of armed conflicts from the effects of hostilities to the greatest possible extent. For this purpose, the ―victims‖ are essentially all those who are or have been rendered ―hors de combat‖ in relation to the conflict in question, that is the sick, wounded and/or shipwrecked, prisoners of war and civilians who are themselves not offering hostile action. Nowadays, human rights also play a complementary role in the protection of non-combatants in situation of wars.
II. Defining Armed Conflict Recent armed conflicts events across regions of the world have led to a debate, both nationally and internationally, about what constitutes armed conflict in international law. The emergence of non-State groups as a major International Journal of Socio-Legal Research 3 Volume 1 | Issue 1 | ISSN- 2393-8250
threat to international peace and security and the United States‘ assertion that the ―war on terror‖ is an armed conflict under international law have been at the centre of the controversy. Currently, there is no authoritative definition of armed conflict in international law1 and the debate focuses almost solely on how the term ―armed conflict‖ is used in the Geneva Conventions and the Additional Protocols2 which form the core of International Humanitarian Law (IHL). The Geneva Conventions refer to two types of armed conflict— ―international armed conflict‖ and ―non-international armed conflict‖— but do not define the term ―armed conflict‖ and do not provide definitive answers in peripheral situations of conflict, such as those involving a State and a transnational terrorist network.3 However, the Geneva Conventions do not operate in a vacuum but function in conjunction with other bodies of law, including, in particular, Human Right Laws (HRL). According to the Vienna Convention on the Law of Treaties
1 Natasha T. Balendra; “Defining Armed Conflict”, New York University School of Law, Public Law & Legal Theory Research Paper Series, Working Paper No. 07-22, December, 2007. (electronic copy available and accessed on 12/05/2012 at: http://ssrn.com/abstract). 2 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, [hereinafter Geneva Convention IV] [hereinafter, collectively, Geneva Conventions]; Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977 [hereinafter Additional Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977 [hereinafter Additional Protocol II] [hereinafter, collectively, Additional Protocols]. 3 Simply for the sake of convenience, the terms ―terrorism‖ and ―terrorist‖ are used interchangeably in this work. It must be noted that that there is no agreed definition for these terms in International Law. For an extensive discussion of the use of the term ―terrorism‖ in International Law, see Helen Duffy; The War on Terror and Framework of International Law, (Cambridge University Press: Cambridge, 2005). International Journal of Socio-Legal Research 4 Volume 1 | Issue 1 | ISSN- 2393-8250
[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.4
Therefore the first step in ascertaining the meaning of the term ―armed conflict‖ in international law is to look at both the text and the object and purpose of the Geneva Conventions.
As noted earlier, the Geneva Conventions recognize two distinct categories of armed conflict—international and non-international. The full complement of protections under IHL is applicable only to the first category. Under the Geneva Conventions, an international armed conflict arises between “two or more of the High Contracting Parties.”5 The full complement of protections provided by IHL applies in cases of international armed conflict. According to the Commentary to the Geneva Conventions, “[i]t makes no difference how long the conflict lasts, or how much slaughter takes place.”6 Since only States can be High Contracting Parties, an international armed conflict has traditionally been viewed as a conflict between two States. A much smaller group of protections included under Common Article 3 of the Geneva Conventions applies to a second category of armed conflicts, namely ―armed conflicts not of an international character.‖7 Such conflicts
4 Vienna Convention on the Law of Treaties, 1969, Art. 31. Available at http://untreaty.un.org/ilc/texts/instruments/english/conventions/ [hereinafter ‗Vienna Convention‘]. 5 Vienna Convention, art. 31. In addition, Additional Protocol I, which supplements the protections available in international armed conflict, applies also to ―armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination.‖ See, Additional Protocol I, art. 1(4). 6 J. S. Pictet; Commentary on Geneva Convention for the Amelioration of the Condition of the Wounded And Sick in Armed Forces in The Field, (International Committee of the Red Cross: Geneva, 1952). 7 Under Additional Protocol II, further protections apply in cases of conflict between a State and armed forces that are ―under responsible command [and] exercise such control over a International Journal of Socio-Legal Research 5 Volume 1 | Issue 1 | ISSN- 2393-8250
“occur…in the territory of one of the High Contracting Parties,”8 which suggests that non-international armed conflicts typically occur within a single State.9 Non-internationals armed conflicts are, however, distinguished from “internal disturbances and tensions [or] isolated and sporadic acts of violence.”10 For instance, the boko haram menace in Nigeria will definitely not be a civil war. One of the factors relevant to such a factual determination is the nature, intensity, and duration of the violence.11 Additionally, the protections applicable in non-international armed conflicts bind all parties to the conflict, including non-State actors.12 As a result, for a non-State actor to be deemed a party to a non-international armed conflict, it must have attained a certain level of organization and command structure such that it is capable of being identified as a party in the first place.13 However, many conflicts at the periphery of the definition of non- international armed conflict are calling into question the determination of these criteria. The International Committee of the Red Cross (ICRC) Commentary to the Geneva Conventions explains that the term ―armed conflict,‖ in addition to the term ―war,‖ was included in order to circumvent arguments by States committing hostile acts that they are not making war but merely engaging in police enforcement or legitimate acts of self-
part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.‖ See Additional Protocol II, art. 1(1). 8 Geneva Conventions, art. 3. 9 See Geoffrey S. Corn; ―Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict‖, (2007) 40 Vanderbilt Journal of Transnational Law, 295, 307. 10 See Additional Protocols, art. 1(2) (―This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.‖). 11 Int‘l Comm. of the Red Cross; ―International Humanitarian Law and the Challenges of Contemporary Armed Conflicts‖ (2003) available at http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5XRDCC/$File/IHLcontemp_armedconf licts (last accessed 12/05/2012). 12 Geneva Conventions, art. 3, supra. 13 ICRC REPORT, supra note 11, at page 19 International Journal of Socio-Legal Research 6 Volume 1 | Issue 1 | ISSN- 2393-8250
defense.14 The goal here is clearly humanitarian. Yet it does not follow that the term ―armed conflict‖ must be interpreted broadly in all circumstances. When the provisions of the Geneva Conventions were drafted, the protections available under HRL were not taken into account. Nor had the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights (ICESR), the first legally binding human rights instruments of universal applicability, been adopted yet. At that time, IHL was probably viewed as the only source of protection for individuals during times of violent conflict. However if HRL is also applicable in armed conflict, as it appears to be the case, then individuals might be protected even in the absence of IHL. Therefore the humanitarian goals of the Geneva Conventions are not always furthered by a broad interpretation of the term ―armed conflict.‖ On the other hand, however, there is nothing in the text or object and purpose of the Geneva Conventions to indicate that a narrow reading is warranted either.
III. Between Human Right Law (HRL) and International Humanitarian Law (IHL) Despite having a great deal in common, HRL and IHL are separate bodies of law. HRL has its sources in a series of international treaties such as the International Covenant on Economic, Social, and Cultural Rights,15 several regional treaties such as the European Convention on Human Rights,16 the African Charter on Human and Peoples‘ Rights17 and the American
14 ICRC Report supra note 11, at 32 15 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), at p. 49, U.N. Doc. A/6316 (adopted Dec. 16, 1966) (entered into force Jan. 2, 1976), available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm. 16 Convention for the Protection of Human Rights and Fundamental Freedoms, Sept. 3, 1953, E.T.S. 5, 23 U.N.T.S. 221. 17 African Charter on Human and Peoples‘ Rights (Banjul Charter), African Union Doc. CAB/LEG/67/3rev. 5, 21 I.L.M. 58 (1982) but came into effect on 21 October 1986. International Journal of Socio-Legal Research 7 Volume 1 | Issue 1 | ISSN- 2393-8250
Convention on Human Rights,18 decisions by international bodies interpreting and applying those treaties, and State practice. Although norms relating to humanitarian conduct in armed conflict have a long provenance,19 much of IHL is contained in the Four Geneva Conventions of 194920 and the two Additional Protocols of 197721 and is complemented by customary international law. IHL focuses on restricting the means and methods of warfare and on protecting individuals who are not, or are no longer, taking active part in the hostilities and is applicable regardless of the justifiability of one or more of the parties beginning the armed conflict. Active interaction between HRL and IHL and between the United Nations (UN) and the International Committee of the Red Cross (ICRC), the respective guarantors of the two systems, was practically non-existent in the first twenty years after World War II. The UN, as the guarantor of peace and human rights, wanted nothing to do with the law of war and the ICRC, the guarantor of the law of war, did not want to be associated with the UN, which it deemed to be a political organization, or with its baby, human rights.22 In the ICCPR, war or armed conflicts are not explicitly mentioned even in its derogation provisions and this is commonly attributed to the reasoning that the ICCPR
18 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123. 19 For a more in-depth discussion of the development of international humanitarian norms and law, see H. Mccoubrey; International Humanitarian Law: Modern Developments in the Limitation of Warfare, 2d ed. (Ashgate: Dartmouth, 1998), p. 8 et al. 20 Geneva Conventions, supra. 21 Additional Protocols, supra. Additionally, The Hague Conventions of 1899 and 1907 and the annexed Regulations lay down important rules for the conduct of hostilities and are now considered to be part of customary international law. Hague Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land, Jul. 29, 1899, 32 Stat. 1803; Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277. 22 See R. Kolb; ―The Relationship Between International Humanitarian Law and Human Rights Law: A Brief History of the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions‖ (1998), 324 Int‟l Review of the Red Cross 409, 409-10 ; K. Bennoune; “Towards a Human Rights Approach to Armed Conflict: Iraq‖ (2003), 11 U.C. Davis J. Int‟l Law & Policy 171, 173. International Journal of Socio-Legal Research 8 Volume 1 | Issue 1 | ISSN- 2393-8250
should avoid envisaging the possibility of war.23 Although the protection of human dignity has been the core value of both the HRL and IHL.
Starting in the 1960s, however, a substantial relationship began to form between IHL and HRL. The United Nations Human Rights Conference held in Tehran in 1968 witnessed the establishment of an official link between human rights and IHL. Following the Conference in a resolution entitled ―Respect for Human Rights in Armed Conflict,‖ the UN General Assembly called for the better application of existing humanitarian international Conventions and the conclusion of additional agreements.24 Since then interactions between the two systems have flourished. As Theodor Meron puts it, ―[h]uman rights have greatly influenced the formation of customary rules on humanitarian law, which is discernible in the jurisprudence of courts and tribunals and the work of international organizations.‖25 It is commonly accepted that human rights law in general and the proceedings and impact of the Tehran Conference in particular directly influenced the adoption in 1977 of the two Protocols Additional to the Geneva Conventions.26 It has become routine for international bodies charged with the implementation and application of IHL, such as the International Criminal Tribunals for the former Yugoslavia and Rwanda to look to HRL and its methodologies for assistance in interpreting the norms of IHL.27
23 See The Secretary-General, Report of the Secretary-General on Respect for Human Rights in Armed Conflicts, at 22, U.N. Doc. A/7720 (1969). The European Commission on Human Rights (ECHR), on the other hand, explicitly allows derogation in ―times of war or other public emergency.‖ ECHR, supra Art. 15(1). 24 Declaration on Respect for Human Rights in Armed Conflicts, G.A. Res. 2444, U.N. GOAR, 23rd Sess., Supp. No. 49, U.N. Doc. A/7433 (1968). 25 Theodor Meron; ―The Humanization of Humanitarian Law‖, (2000) 94 American Journal of International Law (AJIL), 239 at 244. 26 See, e.g., Louise Doswald-Beck & Sylvain Vité; ―International Humanitarian Law and Human Rights Law‖, (1993), 293 Int‟l Rev. Red Cross 94 at 113 ; Dietrich Schindler; ―The International Committee of the Red Cross and Human Rights‖, (1979) 208 Int‟l Rev. Red Cross 3-14. 27 See, e.g., Prosecutor v. Delalic, No. IT-96-21-T, Judgment, 266 (Nov. 16, 1998) (where the Trial Chamber of the ICTY looks to HRL for support for its interpretation of the term International Journal of Socio-Legal Research 9 Volume 1 | Issue 1 | ISSN- 2393-8250
Many human rights bodies have also further stimulated this relationship by using IHL to interpret the norms of HRL during times of armed conflict.28
IV. Application of Human Rights Law and International Humanitarian Law in Armed Conflict
The consensus among many international tribunals and international organizations appears to be that both HRL and IHL are directly applicable in armed conflict but when the two sets of laws conflict, IHL takes priority as the more specialized law or the lex specialis.29 The International Court of Justice (ICJ), the UN‘s judicial body, first considered the question of whether HRL applies directly in armed conflict in its Advisory Opinion in
―protected persons‖ in Geneva Convention IV); Prosecutor v. Tadic, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, 97 (Oct. 2, 1995) (where the Appeals Chamber states that one of the reasons for applying the rules of international armed conflicts to non-international armed conflicts also is ―the impetuous development and propagation in the international community of human rights doctrines‖). 28 Contemporaneous with the growing interaction between IHL and HRL, a vigorous debate has raged as to whether in fact such interaction is justified. Some scholars point to factors like the distinct historical roots and conceptual frameworks of the two systems and maintain that the two sets of norms must be kept strictly separate. For a good survey of many of the arguments for keeping IHL and HRL separate, see M. J. Matheson; ―The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons‖, (1997) 91 AJIL 417, 423 (arguing that HRL should not be applied in situations of armed conflict). Others hail the cross-fertilization between IHL and HRL as an opportunity that should be embraced wholeheartedly and point to and applaud what they see as the growing influence of each body of law on the other. 29 It should be noted that some States, notably the United States and Israel, insist that HRL is not applicable to their actions outside their respective territories and that they are only bound by IHL when they engage in armed conflict abroad. See CCPR Human Rights Comm., Concluding Observations of the Human Rights Committee: Israel, 11, U.N. Doc. CCPR/CO/78/ISR (Aug. 21, 2003), available at http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR [hereinafter Concluding Observations of the Human Rights Committee]. It is beyond the scope of this work to delve into the debate as to whether a State‘s HRL obligations extend to its extraterritorial activity except to say that, regardless of the debate, the majority of actors in the international community appear to accept that HRL is applicable in armed conflict. For detailed analyses of the extraterritorial applicability of HRL. See also M. J. Dennis; ―Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation‖, (2005) 99 AJIL 119; Ralph Wilde; ―Legal ―Black Hole‖? Extraterritorial State Action and International Treaty Law on Civil and Political Rights‖,(2005) 26 Michigan Journal of International Law 739. Cf. President Obama‘s policy of dismantling Guantanamo Bay, a United States‘ Detention Camp in Cuba. International Journal of Socio-Legal Research 10 Volume 1 | Issue 1 | ISSN- 2393-8250
the 1996 Nuclear Weapons Case. The Court found that the right to life under Article 6 of the ICCPR was applicable in armed conflict and explained the relationship between IHL and HRL as follows: In principle, the right not arbitrarily to be deprived of one‘s life applies also in hostilities. The test of what is arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely the law applicable in armed conflict, which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.30
The International Court of Justice (ICJ) recently affirmed this position in the 2004 Wall Case31 when it said: More generally, the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law there are thus three possible situations: some rights may
30 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J.Report 66 as available at http://prop1.org/2000/icjop1.htm (accessed on 16/05/2012). 31 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (2004) I.C.J. 136 as available at http://unispal.un.org/unispal. (accessed on 18/05/2012). International Journal of Socio-Legal Research 11 Volume 1 | Issue 1 | ISSN- 2393-8250
be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.32 Other international bodies charged with the implementation of IHL and HRL have also articulated a similar position vis-à-vis the relationship between IHL and HRL in armed conflict, albeit with different degrees of explicitness.33 The Inter-American Commission of Human Rights has on several occasions held that although HRL applies in armed conflict, the lex specialis is IHL.34 The Human Rights Committee (HRC), has explicitly stated that the applicability of IHL during armed conflict does not preclude
32 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory supra at 106. In the more recent DRC v. Uganda case, the Court appears to apply the two bodies of law in parallel and finds violations of both IHL and HRL without referring to IHL when finding violations of HRL. However, the Court did not delve into the issue of how any conflicts between HRL and IHL might be resolved. See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda), (2005) I.C.J. 116 at 217- 219. 33 But it must be noted that there are some cases in which some human rights bodies have directly applied HRL to situations of armed conflict, without any reference to IHL. See, e.g., Wilfredo Loyola et al. Case (1985) 6724, Inter-Am. C.H.R. 79, OEA/ser. L/V/II.66, doc. 10 rev.; African Commission on Human Rights, Civil Liberties Organization v. Chad ACHPR, (1995) Corn. No. 74/92 Decision of Oct. 11, 1995. There may also be procedural impediments to human rights bodies applying IHL as the lex specialis. In the Las Palmeras case, for instance, the Inter-American Court of Human Rights stated that it only had competence to determine whether the acts in question were compatible with the American Convention and refused to examine the legality of the actions under Common Article 3. See Las Palmeras Case, (2000) Judgment on Preliminary Objections of Feb. 4, 2000, as available at http://www1.umn.edu/humanrts/iachr/C/67-ing.html. (accessed on 23/05/2012). 34 See, Abella v. Argentina Case 11.137, Inter-Am. C.H.R., Report No. 55/97, OEA/Ser.L./V/II.98, doc 7 rev. 271 (1997); Coard et al. v. United States Case 10.951, Inter-Am. C.H.R., Report No. 109/99, OEA/ser.L/V/II.106, doc. 3 rev. (1999). International Journal of Socio-Legal Research 12 Volume 1 | Issue 1 | ISSN- 2393-8250
the parallel applicability of the provisions of the ICCPR,35 but has observed that ―in respect of certain Covenant rights, more specific rules of international humanitarian law may be especially relevant for the purposes of the interpretation of Covenant rights.‖36 The European Court of Human Rights has never explicitly discussed the relationship between IHL and HRL but has on several occasions used terminology and concepts arguably borrowed from IHL when applying the ECHR to situations of armed conflict.37
However, there continues to be debate over whether in fact the European Court is applying IHL as lex specialis or is applying the ECHR with no reference to the norms of IHL.38 The position of the ICRC also appears to be that IHL is the lex specialis in times of armed conflict. This was the approach of the experts convened by the ICRC at the seventeenth Round Table on Current Problems of International Law.39 There appeared to be a consensus at the meeting that the non-derogable provisions of HRL continued to apply in armed conflict simultaneously with IHL but that IHL represented the lex specialis.40 During the discussion, multiple references
35 See Concluding Observations of the Human Rights Committee, supra (stating, with respect to the second periodic Report submitted by Israel, that ―the applicability of the regime of international humanitarian law during an armed conflict does not preclude the application of the Covenant, including Article 4 which covers situations of public emergency which threaten the life of the nation‖). . 36 See CCPR Human Rights Comm., General Comment No. 31 Nature of the General Legal Obligation Imposed on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004) 37 See Ergi v Turkey Application (1998) Eur. Ct. H.R. 1751, 79, accessed on 20/5/2011 as available at http://cmiskp.echr.coe.int/tkp197/view. (referring to ―civilian life‖ and ―incidental loss‖ which are arguably terms borrowed directly from IHL). 38 Some commentators maintain that the European Court is applying the ECHR in an undiluted form without regard to IHL. See generally William Abresch; ―The Human Rights Law of Internal Armed Conflict: The European Court of Human Rights in Chechnya‖, (2005) 16 Eur. J. Int‟l Law 74. 39 Int‘l Inst. of Humanitarian Law & Int‘l Comm. of the Red Cross, Summary Report, International Humanitarian Law And Other Legal Regimes: Interplay In Situations Of Violence (2003) at http://www.icrc.org/Web (accessed on 22/06/2012). 40 Ibid. at 8-9 International Journal of Socio-Legal Research 13 Volume 1 | Issue 1 | ISSN- 2393-8250
were made to the ICJ‘s opinion in the Nuclear Weapons Case.41 The ICRC Study on Customary International Humanitarian Law also adopts the view that both HRL and IHL are applicable during armed conflict and that IHL is the lex specialis and takes precedence in armed conflict.42 Many human rights proponents, including human rights organizations, while working on the basis that both IHL and HRL are applicable in an armed conflict, rely solely on IHL norms when assessing whether State conduct in armed conflict violates international law.43Even many academic commentators who see a significant role for human rights in armed conflict appear to accept the ICJ‘s statement that IHL is the lex specialis.44
It should, however, be noted that the protection of human dignity, whether during war or peace time, is the core value of both international human rights law and international humanitarian law.
V. Between International and Non International Armed Conflict.
In analyzing whether or not the application of IHL will lead to derogation from HRL, it will often be important to be specific as to whether IHL rules under consideration are those applicable to international or non-international armed conflict. The extent of derogation may, arguably, be greater in cases
41 Ibid. at 9 42 Int‘l Comm. of Red Cross; Customary International Humanitarian Law, (Jean-Marie Henckaerts & Louise Doswald-Beck eds.), (2005), pp. 299- 306. 43 This trend is apparent in the reports on the recent conflict in Lebanon. For example, the analysis of a recent report by Human Rights Watch focuses solely on the IHL framework and its distinction between combatants and civilians. See Human Rights Watch, The Terrible Toll of the Israel—Lebanon Conflict on Civilians: Ongoing Human Rights Abuses and Violations of International Humanitarian Law (Aug. 10, 2006), at http://hrw.org/english/docs/2006/08/10/lebano1 (accessed 6/10/2012). See also Amnesty Int‘l, Israel/Lebanon; ―End Immediately Attacks Against Civilians‖ (July 13, 2006), http://news.amnesty.org/index (solely referencing IHL and Geneva Conventions in demanding that Israel and Hezbollah immediately cease attacks on civilian populations). 44 See O. B. Naftali & Y. Shany; ―Living in Denial: The Application of Human Rights in Occupied Territories‖, (2003) 37 Isreal Law Rev. 17 (stating that they ―have come to the conclusion that . . . the law of war and humanitarian law provide lex specialis in situations of armed conflict and occupation‖). International Journal of Socio-Legal Research 14 Volume 1 | Issue 1 | ISSN- 2393-8250
of international armed conflict than non-international armed conflict. The latter is more sparsely regulated and contains many more gaps. Many commentators45 have argued that HRL can, and should, be used to fill in the gaps left unregulated by IHL. This argument is consonant with the way lex specialis operates. The maxim only comes into play if there are two norms that purport to govern the same subject matter. Therefore, in the case of non-international armed conflicts, because many issues are left ungoverned by IHL, the lex specialis maxim would not be applicable and HRL would apply in undiluted form with regard to those issues. But both the principles of distinction and proportionality apply to non-international armed conflict.46
Therefore, with respect to the right to life, IHL would derogate from HRL as much in the case of non-international as international armed conflict. However, with respect to the right to liberty, the undiluted norms of HRL may have a much greater role to play in bulking up the leaner regulations of IHL, which would then lead to much less derogation from the right to liberty than would otherwise be the case.47 However, there is a lack of agreement on whether HRL can be used in this manner to develop the norms applicable in non-international armed conflict. If HRL is not used in this manner, the rules of IHL applicable in non-international armed conflict— which are sparser and arguably less protective than in international armed conflict—might constitute a greater derogation from HRL than the rules of international armed conflict.
45 T. Hillie, supra @ fn 2, p. 311 etal; L. Freedman; ―War and Human Rights‖ in Blackburn and Taylor (eds), Human Rights for the 1990s, (Mansell Publishing: London, 1990), p. 14 etal. 46 ICRC Report, supra, vols.1, 3, 46. 47 For an analysis of how HRL could play a vital role in defining the conditions of detention in non-international armed conflict, see Jelena Pejic; ―Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence‖, (2005) 858 Int‟l Rev. Red Cross 375 at 391. International Journal of Socio-Legal Research 15 Volume 1 | Issue 1 | ISSN- 2393-8250
VI. Enforcement of International Humanitarian Law. International humanitarian law (IHL) has assumed considerable importance in the contemporary world on account of proliferation of armed conflicts and armed violence in different parts of the world. This law, which sets out detailed rules that seek to limit the effects of armed conflict, has also come under close scrutiny in the context of the so called 'war against terrorism'. Humanitarian Law of War is also known as the Law of Armed Conflict or simply, the Law of War and is contained in the Four Geneva Conventions of 1949 and their two Additional Protocols of 1977 as well as the Hague Regulations of 1899 and1907. It is principally aimed at regulating warfare and provides protection for victims of armed conflict. Protocol I relates to International Armed Conflicts whereas Protocol II provides for Intra-State Armed Conflict..
VI. A. Common Article 3 of the Geneva Conventions (ICRC, 1949) Common Article 3 of the Geneva Conventions states that in case of armed conflict, each party to the conflict is bound to apply the principle that persons taking no active part in the hostilities shall be treated humanely, in all circumstances, without any adverse distinction, and the wounded and the sick shall be collected and cared for. The provision prohibits violence to life, cruel treatment and outrages upon personal dignity. This Clause is particularly significant in armed conflicts because violence to life and degrading treatment is commonplace in times of war. The prohibited acts, which include enforced prostitution and indecent assault, are echoed in Article 75 of the Convention. This prohibition is crucial in the prevention of rape by combatants on females.
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Rape and some other forms of sexual violence are designated as violation of Common Article 3 of the Convention.48 The wording of Article 3 suggests that differentiation on the basis of, inter alia; sex is permissible as long as its impact is favourable. Common Article 3 binds all parties to the conflict, including the insurgent party.
VI. B. Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War, 1949 Article 14 of the Geneva Convention IV requires that in time of peace and after the outbreak of hostilities, States should establish hospital and safety zones and localities so organized as to protect the wounded, sick and aged persons, children, expectant mothers and mothers of children under seven, from the effects of war. If states were complying with this requirement, the impact of war on the vulnerable could, arguably, not have reached the incredible levels it has gone today. Vulnerability or otherwise of women and children are, however, dependent on their activities in the course of the armed conflicts. Some women are in contemporary times combatants and some including children are spies for the opposing parties. In this circumstances, it is submitted, that such women and children cannot and should not be categorised as being vulnerable.
Article 16 of the Fourth Geneva Convention gives protection to the wounded and the sick. It stipulates that the wounded and the sick, as well as the infirm, and expectant mothers, shall be the object of particular protection and respect. This Article recognizes the vulnerability of these people during conflicts and the preferential attention they deserve.
48 See the Statute of the International Criminal Tribunal for Rwanda (ICTR), established by the UN Security Council in November 1994.
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It is also worth noting that Article 27 indicates that women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault.
VI. C. Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts.
Article 48 of the Additional Protocol provides the basic rule, which requires the Parties to the conflict to distinguish between the civilian population and combatants and between civilian objects and military objective and accordingly directs operations against military objectives. The provision indicates that civilians are not party to the hostility and therefore they should be respected and protected as well as their property. Nonetheless, it may be problematic to figure out who is a combatant and who is a civilian where combatants have no distinct uniform or disguise themselves as civilians.
The principle of proportionality is central aspect of the International Humanitarian Law. Article 51(5)(b) defines indiscriminate attacks as those which may be expected to cause incidental loss of civilian life, injury to civilians and damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. This provision, however, does not take into account long term effects of attacks.49 Thus, long term effects of attacks and potential dislocation of civilians are not limiting factors in the application of force. This failure to recognize and take into account the whole picture of what happens after an armed attack affects the vulnerable population.
49 For example starvation and disease, displacement of civilian population and refugee problem International Journal of Socio-Legal Research 18 Volume 1 | Issue 1 | ISSN- 2393-8250
Article 54 provides for the protection of objects indispensable for the survival of the civilian population. These include foodstuffs, agricultural areas, drinking water installations and irrigation works. Starvation of civilians as a method of warfare is also prohibited. The sabotage of humanitarian relief by combatants is therefore unlawful.
Article 70 provides that relief action shall not be regarded as interference in the armed conflict and that in the distribution of relief consignments, priority should be given to children, expectant mothers, maternity cases and nursing mothers. It is argued that people with disabilities should also have been included in this genre on the basis of their loss of opportunity to operate on level ground with others.
Further, Article 70 spells out that Parties to the conflict shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel even if such assistance is destined for civilian population of the adverse party. The Parties are not only under an obligation to protect relief consignments and facilitate their rapid distribution but shall also encourage and facilitate effective international co- ordination of the relief actions. However, during the 1968 Biafran War in Nigeria, starvation and blockage of materials were part of the ‗winning methods‘ employed by the Government forces against the Biafran combatants. However, this method has been criticised as genocidal strategy on the part of the Federal Government of Nigeria against not just the Biafran combatants but the civilian population who themselves did not offer hostilities.50
50 Chinua Achebe; There was a Country: A personal History of Biafra, Penguin Books Ltd., London, (2012), pp. 199, 209, 210, 221, 230, 231, and 233. International Journal of Socio-Legal Research 19 Volume 1 | Issue 1 | ISSN- 2393-8250
VI. D. Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June1977.
Article 13 of the Protocol II confers general protection on the civilian population against the effects of military operations, and specifically prohibits the direct targeting of civilians, or the use of acts or threats of violence to terrorise the civilian population. Unlike Protocol I, Protocol II contains no specific limitations on the means and methods of combat. There is no prohibition against indiscriminate attacks or any requirement as to proportionality, no prohibition on the civilian population being used as a shield against military operations, and no prohibition against reprisals. All of the foregoing has made the enforcement of Protocol II a mirage. Even where efforts are made through the International Criminal Courts by the trials, in most cases, just the arrow heads were singled out for punishment as in the cases of the civil wars in Sierra-Leone and Liberia in West Africa. Thousands of the belligerents, who committed these dastardly acts, were left unpunished. In some cases, they were offered employment by co-opting them into the State‘s military as it happened recently in Cote‘dvoire.
VII. ENFORCEMENT OF HUMAN RIGHTS LAW VII. A. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.51
This Declaration reaffirms the importance for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world. The Declaration also stresses that all members of the international community shall fulfil, jointly and separately, their solemn
51General Assembly Resolution 53/144 of March 8, 1999. International Journal of Socio-Legal Research 20 Volume 1 | Issue 1 | ISSN- 2393-8250
obligation to promote and encourage respect for human rights and fundamental freedoms without distinction of any kind. The preamble to the Declaration reiterates that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and should be promoted and implemented in fair and equitable manner, without prejudice to the implementation of each of those rights and freedoms.
Paragraph 1 of the Declaration puts a responsibility on everyone, individually or in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at national and international level. This, therefore, entails that every individual is duty bound to the protection and promotion of human rights, which implies a responsibility to react and protect human suffering. Undoubtedly, Non Governmental Organizations (NGOs), Non- Governmental Humanitarian Agencies (NGHAs) and Intergovernmental Agencies (IGOs) derive their responsibility from this provision. Paragraph 2 states that each State has a prime responsibility and duty to protect, promote and implement all human rights.
It has been noted that women are usually not given opportunity to contribute in decisions that affect their lives especially in post –conflict nation building or even decisions to go to war. This is contradictory to the intent and purpose of Paragraph 8 of the Declaration which provides that everyone has the right, individually and in association with others to have effective access, on non- discriminatory basis, to participate in the government of his or her country and in the conduct of public affairs.
While Paragraph 9 indicates that everyone has a right to benefit from an effective remedy and to be protected in the event of violation of those rights, the right can hardly be enjoyed in situations of conflict especially when International Journal of Socio-Legal Research 21 Volume 1 | Issue 1 | ISSN- 2393-8250
there is no justice-dispensing machinery. Further, Paragraph 15 asserts that the State has the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education and to ensure that all those responsible for training lawyers, law enforcement officers, the personnel of armed forces and public officials include appropriate elements of human rights in their programmes. This is a vital provision for purposes of safeguarding democracy, promoting human rights and fundamental freedoms in order to attain sustainable peace and stability. However, aspects of humanitarian law need also to be included especially for members of the armed forces who are involved in combat. As discussed below, many combatants today lack the basic rudiments of education.
The protection offered by the provisions of the International Humanitarian Law are inadequate in relation to all categories of persons affected by armed conflict.52 In the context of combatants there are detailed rules protecting combatants when wounded, sick, or prisoners of war. The rules restraining the means and methods of combat in intra-state conflicts in order to protect civilians are very limited. Article 13 of Protocol II confers general protection on the civilian population against the effects of military operations, and especially prohibits the direct targeting of civilians, or the use of acts or threats of violence to terrorise the civilian population. Unlike Protocol I, Protocol II contains no specific limitations against indiscriminate attacks or requirement as to proportionality, no prohibition on the civilian population being used as a shield against military operations, and no prohibition against reprisals. It is a daunting task, however, to persuade the
52 J. G. Gardam and M. J. Jarvis, op. cit, at p.5. International Journal of Socio-Legal Research 22 Volume 1 | Issue 1 | ISSN- 2393-8250
military to accept restrictions on the use of any weapon with a perceived military advantage in order to protect combatants or indeed civilians.53
VII. B. Limitation and Derogation of Civil and Political Rights.
A State Party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 of the Covenant only when faced with a situation of exceptional and actual or imminent danger, which threatens the life of the nation. A threat to life of the nation is one that affects the whole of the population and either the whole or part of the territory of the State and that threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of the institutions indispensable to ensure and protect the rights recognized in the Covenant. Thus, the derogation clause applies in times of public emergency which threaten the life of the nation and the existence of which is officially proclaimed.
Nevertheless, internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4.54 Even in times of emergency, the following rights are non- derogable. The right to life, freedom from torture, cruel inhuman or degrading treatment or punishment, and from medical or scientific experimentation without consent, freedom from slavery or involuntary servitude, the right not to be imprisoned for contractual debt, the right to recognition as a person before the law and freedom of thought, conscience and religion. Almost all of these rights are part of the preemptory norms of
53 J. G. Gardam and M. J. Jarvis, op. cit, at p.5. 54 UN General Assembly Resolution 53/144 of March 8, 1999. International Journal of Socio-Legal Research 23 Volume 1 | Issue 1 | ISSN- 2393-8250
international law (jus cogens) and the Vienna Convention55 proclaims that they are non derogable.
In practice, there is a tendency, particularly on the part of military dictatorships, to misuse the tool of emergency to maintain their own positions of power, which have usually been secured by violation of the constitution that encompasses the Bill of Rights.56
By and large, intrastate-armed conflicts or other cases of internal unrest are by far the reasons most often asserted for declaring a state of emergency. In this case, there lies a danger of the abuse of the right of emergency in the interests of the doctrine of national security. Article 4(1) therefore contains a requirement that a state of emergency only permits derogations when it threatens the life of the nation. The danger must not be imagined or simply feared, but rather the life of the nation must be actually and directly threatened to an exceptional extent. The following criteria have been held to be indicative of a state of emergency threatening the life of the nation: a true, direct threat, whose effects concern the entire nation and make uncertain the continuation of the community‘s organized life, which cannot be sufficiently averted with normal possibilities for limitation of rights.
VIII. Conclusions
The rules of international Humanitarian law are intended to provide protection for victims of armed conflict. This regime has been criticised as inadequate in performing its task in modern-day armed conflicts. Many practitioners and academics regard humanitarian law as largely irrelevant in armed conflict or place more confidence in the ability of human rights law,
55 Vienna Convention on the Law of Treaties of May 23, 1969. 56 See the Amendments to the United States‟ Bill of Rights Act of 4 May 1984. International Journal of Socio-Legal Research 24 Volume 1 | Issue 1 | ISSN- 2393-8250
rather than IHL, to adapt itself to provide effective safeguards for the protection of the victims of armed conflict.57 Although, when questions are raised as to the adequacy of these provisions, the most frequent response is that the rules are sufficient and that what is needed is better enforcement.58
In the final analysis, when a public emergency exists and has been officially proclaimed, a State may take measures derogating from their obligations under the ICCPR. In armed conflicts, the targets of derogation have been mainly personal liberty, freedom of movement and privacy, the guarantees of the rule of law and the exercise of political rights and freedoms. Derogation of non-derogable rights in this case would be unlawful and a violation of the provision of the ICCPR. It is evident from the above exposition of the law that victims of armed conflict and particularly the vulnerable populations are entitled to a preferential protection in times of armed conflict both under the human rights law and the humanitarian law. Although the ICCPR in Article 4(1) provides that state parties may derogate from certain rights in life when a state of emergences is officially proclaimed, governments that have been involved in civil wars recently, especially in Africa, have not officially proclaimed any state of emergency. A manifestation of this scenario is that the State has ceased to be a guardian of the security of its citizens and has become a source of threat to them.59 What is at stake in this scenario is the plight of the defenseless and innocent civilians who are entitled to be protected by the State. The questions that come to mind are: In these circumstances, who is to protect the defenseless? What is the liability of
57 J. Garden and H. Charlesworth; ―Protection of Women in Armed Conflict‖, Human Rights Quarterly, Vol.22, No.1, pp.148-166. 58 ibid at 160. 59 Roger Kibasomba and Bjørn Møller; ―Europe and the Great Lake Crisis‖ in Conflict Prevention and Peace-Building in Africa, Report from the Maputo Conference, 28-29 June 2001at p.106.
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those who fail to protect them? What is the liability of the perpetrators of the atrocities?
All the above questions point to the analysis of the problem in the present discourse-the need to provide adequate protection to the victims of armed conflicts. Conversely, the structure for defending the defenceless during war is porous. Thus, there is need to build a solid fence in order to ameliorate suffering and restore peace. As has been noted, in armed unrest where the plight of the defenceless has been at stake, the international community felt impelled to respond to protect the victims, by way of international humanitarian interventions involving the UN, international human rights and humanitarian agencies and military units. Therefore, it is necessary to close the gaps and construct a synergetic and strategic working relationship among these humanitarian components in order to adequately protect the rights of the victims of armed conflict particularly the vulnerable.
It has also been brought to the fore that eventhough the rules of International humanitarian law and those of the International human rights law are synthetically different in their outer form and inner spirit, they are both symbiotically inevitable for the protection of victims of armed conflicts in Africa. What matters should, I submit, not be the differences between the two aspects of laws but the synergy they can both offer in the protection of the vulnerable in times of armed conflict especially in Africa where internal armed conflicts have almost ripped the continent apart. International Journal of Socio-Legal Research 26 Volume 1 | Issue 1 | ISSN- 2393-8250
MEDICAL ETHICS: MEDICAL NEGILIGENCE AND CONSUMER PROTECTION ACT – ANALYSIS
Dr. B. Venugopal, M.A., M.L., Ph.D (Law)1
The interface between law, medicine and ethics is a subject of great contemporary interest and relevance. New Developments in Medical Practice and research are constantly in the headlines and the advancements, in knowledge that this represents creates new knowledge, on an almost daily, as on academic Medical ethics has developed its own specialized vocabulary, including many terms that have been borrowed from philosophy. From Hippocrates came the concept of medicine as a profession, whereby physicians make a public promise that they will place the interests of their patients above their own interests. In recent times medical ethics has been greatly influenced by developments in human rights. In a pluralistic and multi cultural world, with many different moral traditions, the major international human rights agreements can provide a foundation for medical ethics that is acceptable across national and cultural boundaries2. India is a country where ―Doctors‖ are flourishing with several enjoying roaring practice and many dedicated and striving to make best of bad situation, becoming successful and there after famous. India is also a country of over-crowded, unhygienic, understaffed private hospitals and nursing homes which offer state of the art medicine with expensive and scanning has been introduced the concept that the patient is a ‗consumer‘ and that medical professional are statutory responsible and legal
1 Associate Professor, Department of Legal Studies, University of Madras, Chennai – 600 005.Email: [email protected] 2 Purusottam Behra, Medical Law and Ethic, Mittal Publications, New Delhi, 2007 at page 6 International Journal of Socio-Legal Research 27 Volume 1 | Issue 1 | ISSN- 2393-8250
accountable3. People seeking Medical aid should be enabled to know who is qualified and unqualified practioners. For that An Act was passed by the British parliament in 1858. That Act is Medical Act 1858, The aim of the act is to maintain an official register of Medical practioners to control the profession and over the curriculum and examinations of Medical Colleges. This Act was amended in the year 1950, and amended at was known as Medical Act 1950 passing the qualifying examinations will not be entitled to practice, unless he or she has spent a year in residential appointment at an approved hospital. In 1916, the Government of India passed the India Medical Degree Act, Known as Act no. VII of 1916 to regulate the grant of titles in implying qualifications in western medical science4. In the year 1933, the Indian Legislative Assembly passed Indian Medical Council Act 1933 (Act No. XXVII of 1933) Now Indian Medical Council Act 1956 and the Indian Medical (Amendment) Act 1964. The Medical Council recognizes. For the purpose of this Act those Medical Qualifications granted by medical institutions in India and which are included in the first schedule5. The Medical Council also recognized the Medical qualification granted by Medical Institutions outside India which are included in second Schedule6. In England the privy council in the case of Bhandari V Advocates committee7 has opined that in every allegation of professional misconduct involving an element of deceit or moral turpitude it is the duty of the investigating medical council tribunal to apply a high standard of proof and not to condemn on a mere balance of probability. As per the Amendment Act 1964, the council has now recently prescribed standards of professions
3 Medical Negligence, case book of English and Indian cases. N. Vijaykumar & Co. S.M. Malik. 2008 S. Vishanthan printers & Publisher, Chetpet, Chennai – 2008 Page 272. 4 Dr. Jaising, P.Modi, (Retired Principal) Medical Jurisprudence and Toxicology. Section I, Medical Jurisprudence, Bombay 1967, at p429. 5 Vide the Indian Medical Council Act, 1956, pp 13-14. 6 Ibid pp15,16,77. 7 1956, 3 ALL.ER. 742. International Journal of Socio-Legal Research 28 Volume 1 | Issue 1 | ISSN- 2393-8250
conduct and etiquette and a code of ethics for medical practioners. At the time of Registration, each applicant shall submit the following written and signed declaration. i.e. pledge8. In addition to the guidance given in the code of ethics that every physical is remembered their duties such as use necessary skill, and attention. Neither the police nor any other official has the right to force a physician‘s services without his consent except during military necessity9. To furnish his patients with proper and suitable prescriptions. If he has no dispensary of his own he should legibly write prescriptions, using such abbreviations as are usually employed and mentioning full detailed instructions in language which the chemist or pharmacist dispensing prescriptions, can readily understood. He is help responsible for any damage in health, caused to the patient as result of his understandable instructions mentioned in the prescription. A medical practioner must remember that he is not entitle to examine a person without his consent, without may legally become an assault and a trespass upon the person. Informed consent is very essential when a any treatement is being rendered to a patient whether it be an invasive or non invasive procedure. In Rambiharilal V. Dr. J.N. Srivastara10 the issue was discussed, there the courts found the operating surgeon liable for procure an ‗informed consent‘ form chloroform which was the anesthetic used during the surgery. Operative procedures require a special written consent and also blood transfusion; its risks should be explained. Consent is express, i.e. Real Consent, Transfusion without consent is legally a tort or civil wrong. Professional negligence may be defined as want of reasonable care and skill, or willful negligence on the part of a medical practitioners in the treatment of a patient with whom a relationship of professional attendant is
8 Geneva declaration accepted by the General Assembly of the World Medical Association at Landon October 12, 1949. 9 Carl Scheffel, Medical Jurisprudence, 1931, p.84. 10 AIR 1985, madhyapradesh 180. International Journal of Socio-Legal Research 29 Volume 1 | Issue 1 | ISSN- 2393-8250
established so as to lead to his bodily injury or to the loss of his life. An action for negligence may be brought against a medical practitioner in a civil or criminal court. For civil negligence patient bring an action for damages in a civil court against the practioner. If, he has suffered injury in consequence of negligence. The liability of doctors is not unlimited, surgeons, doctors are not insurers or guarantors of life. They are not liable in law merely because thing goes many. The law requires them to exercise professionally that skill and knowledge that belong to the ordinary practitioner. In the case of negligence action. The thing speaks for itself (Res ispa loquitor) doctrine may provide this missing element by conclusion from the nature of injury. For criminal negligence. After opening the patient‘s abdomen when he decided to remove the gall bladder, the surgeon failed to get the consent of the patient‘s husband. Who was waiting in the hospital. Based on these findings the court found the doctor negligent on two courts. One, for not in forming the patient and her husband about of chloroform which was the anesthetic agent to be used and two, not procuring the consent before removing the gall bladder. Medical practitioner, whether qualified or unqualified may be prosecuted by the police and changed in a criminal court with having caused the death of his patient by doing a rash11 or negligent act not amounting to culpable homicide under section 304-A, IPC, if the death was result of gross carelessness, gross negligence or gross ignorance displayed by him during the administration of an anesthetic, performance of an operation or any other treatment. In Privy Council appeal12 in which a Medical Practitioner prepared on injection which he gave to fifty seven children of whom ten died and others were made gravely ill, it was held that the medical practitioner‘s one act of carelessness in preparing too strong a solution did not amount to criminal negligence. The doctrine of contributory negligence
11 Section 337 of Indian penal code. 12 John oni A kerele V. The King; 44cr in law Journal, 1943 p569 International Journal of Socio-Legal Research 30 Volume 1 | Issue 1 | ISSN- 2393-8250
does not apply to criminal liability when the death of a person is caused partly by the negligence of the accused and partly by the deceased‘s own negligence. Section 211 of the IPC seeks to protect a doctor from malicious prosecutions, knowing that there is no just or lawful ground for such proceeding or charge shall be punished with imprisonment of either description for a term which may extend to two years or fine or with both. In this situation a doctor can file a quash petition‖ in the High Court, praying for quash of criminal proceedings in the trial court, when the criminal case filed against him is devoid of substance. In Dr. V. Rugmini Vs State of Kerala13 a pregnant women was examined and assurance also given to her condition. After that women delivered a baby and subsequently both the mother and the child died. The police registered a case under section 304 A, IPC and doctor a filed a quash petition. The Court dismissed the quash petition filed by the doctor on the ground that the complaint disclosed sufficient averments as regards commission of the offence under section 304 A. There is a lot of anxiety within the medical profession regarding the scope and sanction of law available with the patients if they resort to filing complaints against the medical practitioners, cases of medical malpractice are decided on certain general principles and guidelines laid down by the courts14. 1. Every patient who pays or has promised to pay for treatment can sue the doctor for alleged negligence.
2. If the patient has died, the legal heirs have the right to sue.
3. Government hospitals/charitable organizations are out of purview.
13 1987, CRLJ 2000 14 Anoop K. Kanshal, Advocate, Lawyers update, Sep 2007, Vol XIII, part 9, at p 30. International Journal of Socio-Legal Research 31 Volume 1 | Issue 1 | ISSN- 2393-8250
4. Ratio of Cases decided against doctors is not very high. It is because the cases are not supported by Medico-Legal evidence.
5. Prima Facie negligence (Legal Principles of ISpa Loqiutor) matters – the onus shifts on the doctor and he has to come out the circle of obvious guilt.
The Consumer Protection Act, 1986 was enacted by the parliament of Indian to safeguard consumer interest, In order to achieve and maintain adequate protection for consumers from hazards to their health and safety, and to ensure availability of effective consumer redress. Consumer Courts were established for the settlement of consumers disputes and related matters. The Act protects not only the Interest of a consumer when he purchases goods and services for daily use, but also protects his interests when he goes for treatment to Medical Professional. In Dr. A.S. Chandra Vs Union of India15, the Andhra Pradesh Court observed that private hospitals and Private Medical Practitioners provide service for a consideration, that is, for a fee, Hence their service will be considered as service for the purpose of section 2(1) (0) of the Act. In Cosmopolitan Hospitals and Another Vs Smt. Vasantha P. Nair16. In the Case of Sowbhagya Prasad Vs State of Karnataka17 and Harbhajan Singh Vs Dayanand Medical College and Hospital and another18 view that Medical services in government run hospital cannot be considered as service under the Consumer Protection Act. Whereas in the case of Smt. Sukanti Behera Vs Sakshi Bhusam Rath19 expressed the differently. In the case of All India Medical Association20 Supreme Court held.
15 (1992) 1 Andhra Law Times 713. 16 1 (1992) CPJ 302 (NCDRC) 17 1 (1992) CPJ 402 (Ker. SCDRC) 18 1996(3) CPJ 263 and 1994(1) CPR 518 (Punj. SCDRC) 19 11(1993) CPJ 633 (Orissa SCDRC) 20 AIR 1996 SC 550. International Journal of Socio-Legal Research 32 Volume 1 | Issue 1 | ISSN- 2393-8250
The definition of services in section 2 (1) (0) of the Act divided into three parts – The Main Part; the including part and the exclusionary part. The main part is explanatory in nature and defines service to of any description which is made available to the Genuine Users. The including part includes providing facilities such as banking, transport, electricity energy, housing, entertainment. The excluding part excludes rendering of any service free of change or under contract of personal services. The inclusive part of the definition of ‗Service‘ is not applicable and we are required to deal with the questions failing for consideration in the light of the main part exclusionary part of the definition. The exclusionary part will require consideration only if it is found that in the matter of consultation, diagnosis and treatment a medical practitioner or nursing homes including hospitals renders service falling within the main part of the definition contained in Section 2(1) (0) of the Act. We have, therefore, to determine whether medical practitioners and hospitals can be regarded as rendering a ―Service‖ as contemplated in the main part of section 2(1) (0)21 on behalf of the Indian Medical Association and Council argued that the organization adequately equepted to handle complaints of medical doctors. The Court rejected and held. Medical Practitioners, though belonging to the Medical Profession are not immune from a claim for damages on the ground of negligence. The fact that they are governed by the Indian Medical Council Act and are subject to the disciplinary control of Medical Council also no solace to the person who has suffered due to their negligence and the right of such person to seek redress is not affected22. In Supreme Court observed in the case of Dr. J.J. Merchant Vs Shrinath Chaturredi23. Only the exceptionally complicated cases requiring recording of evidence of expects asked to
21 Ibid Para 17. 22 Ibid Para. 26. 23 (2002) CTJ 757 and JT 2002 (b) SC1. International Journal of Socio-Legal Research 33 Volume 1 | Issue 1 | ISSN- 2393-8250
approach the civil court for relief under the Act24. The Apex Court understands that majority of Medical negligence cases are complicated and require. The evidence of experts it is no doubt that consumer courts are also seeking expert evidence to settle these disputes. In Poonam Verma Vs Ashwin Patel and Others25 a Homeopathy doctor who prescribed Allopathic Medicine to the patient as a result of that patient dies, The was held to be negligent and liable to pay compensation to the wife of deceased for the death of husband on the ground that the doctor was entitled to practices only homeopathy medicine under a statutory duty not to enter the field of any other system of medicine; his conduct amount to negligence per se actionable in civil law. In Dr. Suresh Gupta Vs Government of NCT of Delhi and Another26 the patient dies while a plastic surgeon removing his nasal deforming. While conducting the operation the surgeon gave invision at wrong part due to which blood deeped into the respiratory passage and the patient expired. The surgeon was prosecuted order Section 304 A of the IPC, while the Doctor filed a quashing petition was dismissed by the High Court in it. The Doctor approached the Supreme Courts submitting that even if the entire case of prosecution was accepted. There was no case for convicting him, allowing appeal. Supreme Courts held. Thus a Doctor cannot be held criminally responsible for patient‘s death unless his negligence or in competence showed such disregard for life and safety of his patient as to amount to crime against the state27. The Hon‘ble Supreme Courts of India in Jacob Mathew Vs State of Punjab28 has held that if the patient dies after treatment, and a case under the Indian
24 Section 3 of the CPA Act. 25 (1996) 4 SCC 332 26 (2004) 6 SCC 422 27 Sushile, Liability of Medical Professionals under the Criminal Law: Recent Judicial Trends. National Capital Law Journal Volume XII-XIII, 2007, 2008. Sudhir Printers, Kardbyh, New Delhi 110005. P.169. 28 AIR 2005 SC 3180. International Journal of Socio-Legal Research 34 Volume 1 | Issue 1 | ISSN- 2393-8250
penal code, section 304, is filed, doctor should not ordinarily be arrested by police on an FIR unless it has obtained a reports on the case by a Medico- Legal Board of experts. It may have come as relief to the Medicine men, but at the same time, it also ensures that there is collection of some piece of expert evidence at the initial stage itself, which otherwise is not so easy, sometime impossible. Supreme Courts further agreed with the principles laid down in Dr. Suresh Gupta‘s case and reaffirmed the same. In Parojmit Singh Grewal Vs Cheranjit Singh Chanla29, the NC DRC held that ―there is no material to hold that the revision petitioner was negligent in treating the respondent. The revision petitioner did not maintain a proper written record of the treatment given by him and national for giving such treatment. Hence to the extent there is deficiency of service. In this case high lights the differences in the concept of negligence under the law of Torts and deficiency of service under the Consumer Protection Act. There was no injury to the patient and the doctor was not held negligent, yet there was deficiency of service on the part of the medical professional for not maintaining records. The consumer protection courts also calculates the compensation as the civil courts30. The Supreme Courts in Laxman Thamppa Katgiri Vs G.M. Central Railway and Others31 relying on its reasoning in the IMA held that service rendered to an employee and his family members by a medical practitioner or a hospitals/nursing home on the basis of his conditions of service and where the employer becomes the expenses of medical treatment was also come within the purview of Consumer Protection Act.
29 RP No. 1475 of 2000, directed by the NCDRCCN 19 October 2006. 30 1996 (3) CPJ 605 CGJSCDRC.
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In M/S Spring Meadows Hospital Vs Harjot Ahluvalia through K.S. Ahluvalia and Another32 the first major compensation case Act of liability for negligence by a Medical Professional in Consumer Law. No doubt the Consumer Protection Act mainly to safe guards the interests of the consumers as well as patients; but in practical some unscrupulous patients here started using it as weapon to blackmail the Medical Practitioners and Hospitals. Any false Complaints was filed against the doctors, the Section 2b of the Consumer Protection Act come to the reserve of the doctors that if the complaint is false, frivolous or fabricated, the form will dismiss the petition and also impose a fine up to Rs. 10,000/- on the false complainant. In K. Jeyaran Vs Poora Hospital and Research Centre and Other (3(1993) CPJJO CNCDRC) the patient developed chest pain on 21st September 1990 and was admitted to the Hospital. He complained in shifting him to ICCU ward and also like malfunctioning of ceiling fan, emergency bell and he levied compensation. The NCRDC held that complaint was malafide, frivolous, and vexatious and was a misuse of consumer protection act and directed the petitioner to pay Rs. 10,000/- as cost to the Hospital. In Baby Pretti Goel (Minor Vs Batra Hospital and Medical Research Centre and Another Co.P.No. 166 of 1996, divided by the NCDRC on the 6th November 2006. The NCDRC held that there was no Medical Negligence at all in the case and directed the complaint to pay Rs. 1000/- as cost to the hospital for filing this loss complaint. In every profession there may be false complaint filed. Misuse of law as well as consumer protection Act, but the strength of consumer protection Act is in it contains the provisions to check frivolous and
32 (1998) 4SCC 39 International Journal of Socio-Legal Research 36 Volume 1 | Issue 1 | ISSN- 2393-8250
spenelsive complaints. Doctors who follow the Medical Ethics, Medical Council Rules need not worry about the Consumer Protection Act. Ethics constitutes the branch of philosophy dealing with values relating to human conduct, with respect to the goodness and the rightness of motives and actions. Thus for, the matter is easy. The difficulty arises in defining goodness, society definition changes over time, society used to believe it was good for the market place to be governed by the rule of ―Let the buyer beware‖ Gradually, public opinion came to regard this as not good, and much of modern law, with its protection of the consumers, is based on ―Let the Seller Beware‖, Let the Doctor Beware‖.; International Journal of Socio-Legal Research 37 Volume 1 | Issue 1 | ISSN- 2393-8250
MEDICAL ACCOUNTABILITY AND THE RULES OF NEGLIGENCE IN INDIAN LEGAL SYSTEM Ms. Aishwarya Kadam* INTRODUCTION Man is the only animal who believes in keeping order in his world. This was one of the reasons that he invented the concept of law. Law helped every man who suffered from an injury due to the acts committed by others, to seek remedy by means of compensation or punishment to the person committing that act. It was in this time that the field of medicine was developing. Since no man is perfect in this world, it is evident that a person who is skilled and has knowledge over a particular subject can also commit mistakes during his practice. Such mistakes in the medical profession may lead to minor injuries or some serious kinds of injuries and sometimes these kinds of mistakes may even cause death. In such situations there arises a need for a remedy to the injured people so that justice is upheld and this gave rise to the concept of medical negligence.
Medical profession as distinguished from trade is based on higher ethical standards. Medical profession has its own ethical parameters and code of conduct. This profession is rendering a noble service to humanity and has sustained itself on public trust. Any person or professional who serves the public has to do his duty not as a matter of contract, nor in consideration of the fee collected, but as an organized public service. The principle of public service is thus a major component of all professions and medical profession cannot be an exception to it.
Cases of medical negligence arise from a diffuse and diverse set of circumstances. We would argue that by addressing the issue of medical
*LL.M, NET JRF, Assistant Professor, ILS Law College, Law College Road, Pune International Journal of Socio-Legal Research 38 Volume 1 | Issue 1 | ISSN- 2393-8250
negligence, we are dealing with some of the most difficult problems that arise from complaints within the field of medical profession. But we must note the significance of medical negligence as an issue in its own right and not simply as part of broader contents of complaints about health care and compensation for victims of medical negligence.
The consumer movement in the health care sector in India is at the crossroads. On the one hand, public awareness has been increasing, while on the other, the standard of health care delivery has been deteriorating, the situation is complex in our country due to different disciplines of medicine which have been traditionally and historically practiced. Regulation of different disciplines is very important. However, this aspect has remained neglected over the years. The consumer is caught in a trap. On the one hand, he has to deal with the powerful combine of an ill-equipped, uncontrolled medical profession, defunct regulatory bodies, and an overburdened legal system and on the other hand, has to face a grim health situation and the maladies arising out of it.
With the emergence of major private hospital and nursing homes, the doctor does not belong to the patient; he belongs to the institution. With materialism replacing moral and spiritual values, the system of cuts and commissions by and large governs the medical profession. Today that divine relationship has been and is being changed to that of mostly mature relationship. The doctor offers service, the patient is a consumer and so, if there is any shortfall in the services, being offered the doctor should be held responsible for his own shortcomings.
Thus, medicine which is used to having a personal equation between the doctor and patient has become a high-tech profession, often devoid of human touch. Medical negligence is one of the main areas of professional negligence in which the patient is always at the mercy of doctor and quite International Journal of Socio-Legal Research 39 Volume 1 | Issue 1 | ISSN- 2393-8250
often victims of their negligence. The patient‘s position is such that he may not know and may not be able to establish what treatment he had received and how his injuries have been caused. Hence, there is a great need of medical accountability and the rules of negligence, as evolved by courts from time to time are required to fill in this vital gap. In this synopsis we are going to see how medical professionals are made accountable for their negligence or substantial shortcomings in the services they provide to the patients.
Definition and Meaning:
Negligence is a very wide term and it cannot be defined precisely. Various meanings may be attributed to negligence. Negligence can be defined as a person‘s breach of duty that is imposed upon him to take care, resulting in damage to the complainant. So the essential components of negligence are as follows1:
1. The existence of a duty to take care, which is owed by the defendant to the complainant,
2. The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty, and
3. Damages, which are both casually connected with such breach and recognized by the law, have been suffered by the complainant.
Many rules of negligence law have been changed over the years due to constant change in perception of public interest. What constitutes negligence and what does not also differs from time to time according to development of society and resources available.
1 Charles Worth and Percy on Negligence, 9th Ed. P.16 (1.26). International Journal of Socio-Legal Research 40 Volume 1 | Issue 1 | ISSN- 2393-8250
After defining negligence the question arises that what constitutes Professional Negligence? It is the knowledge about the legal injury resulting in the course of care or service rendered by a professional due to lack of sincerity in his duty towards his client and lack of reasonable care. Anyone who practices a profession or is engaged in a transaction in which he holds himself out as having professional skill, the law expects him to show the amount of competence associated with the proper discharge of the duties of that profession or trade, and if he fails and injures someone in consequences, he is not acting reasonably.
It is widely believed that practicing medicine is a noble profession and also there appears to be some still believing that a man of medicine is a missionary and so he takes the oath of service for the suffering human beings. However, today like everything else in this society, this noble profession stands commercialized. A section of medical practitioners seem to be propelled more by greed than the desire to serve suffering humanity. There are some doctors who have become casual and insensitive to the professional practice. Thus, more medical accidents are reported in day to day life. It shows that there is a delinquency, culpability, deviancy, rashness or negligence on the part of doctors while treating a patient, due to this reason courts are overloaded with cases of medical negligence.
The law does not define medical or professional negligence as a form of conduct that should be set apart from the conduct of any other member of the society offering a service. In the strict legal sense, no distinction is to be drawn between the negligence of a doctor, builder or insurance agent. The concept rests entirely on the existence of a duty of care, which is owed by all individuals in society to all other individuals.
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Judicial Development
A doctor 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 and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action for negligence, to the patient2. To hold a medical practitioner liable, the aggrieved person must be able to establish to the satisfaction of the court that: -
The doctor owed him duty of care of a particular standard of professional conduct,
The doctor breached that duty,
The patient suffered actual damage, and
The doctor's conduct was direct and proximate cause of damage.
In Bolam v. Friern Hospital Management Committee3 it was laid down that, a doctor who acts in accordance with a practice accepted as proper by a responsible body of medical men, is not negligent merely because there is a body which takes a contrary view. 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 that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
The same standard of care is applicable to hospitals as to individual doctors with the difference that the basis of liability of hospitals is based on corporate liability. The hospital is directly responsible for the maintenance
2Dr. Laxman Balkrishna Joshi v. Trimbak Bapu Godbole AIR 1969 SC 128. 31957 (1) W.L.R.582. International Journal of Socio-Legal Research 42 Volume 1 | Issue 1 | ISSN- 2393-8250
of an acceptable standard of care of patients and cannot escape the liability even when no fee is charged for services rendered unless every patient is treated free of charge. This has been laid down by the Supreme Court in Indian Medical Association vs. V.P Shantha and others4.
Supreme Court in Paschim Banga Khet Mazdoor SamitiV. State of West Bengal5has held that providing adequate medical facilities to the people is an essential part of the obligation undertaken by the government in a welfare state. Article 21 imposes an obligation on the State to safeguard the right to life of every person and for breach of which one can move the Supreme Court or High Court through writ petition.
Victims of medical negligence, considering action against an erring doctor, have three options:- a) Compensatory- Seek financial compensation before the Consumer Disputes Redressal Forum or before Civil Courts, b) Punitive- Lodge a criminal complaint against the doctor. c) Corrective-. A complaint can also be lodged with Medical Council of India together with State Medical Councils seeking cancellation of the doctor‘s license. It is the Medical Council which gives doctors their license to practice, the license can be withdrawn if the doctor is found guilty of misdemeanors.
Doctors were initially excluded from the ambit of the Consumer Protection when these courts were first set up in 1986. The Supreme Court‘s judgment in the Indian Medical Association v. V. P. Shantha and others6,has brought them within its purview.
4AIR 1996 SC 550. 51996 (8) SC 43. 6 Supra at 4. International Journal of Socio-Legal Research 43 Volume 1 | Issue 1 | ISSN- 2393-8250
As far as criminal cases against doctors are concerned they are lodged mainly following the unnatural death of a patient under their care. The section employed is usually Sec. 304-A of the Indian Penal Code for a rash or negligent act not amounting to culpable homicide and carries maximum imprisonment of two years, or a fine, or both.
Following the recent Supreme Court judgment in Suresh Gupta v. Govt. of NCT of Delhi7, criminal cases against doctors are likely to register a steep fall. The apex Court said that for fixing the criminal liability of the doctor the standard of negligence required to be ascertained is whether it is ―gross negligence or recklessness‖. The mere lack of necessary care, attention and skill will not constitute gross negligence or recklessness.
The Supreme Court‘s judgment in the Jacob Mathew‟s case8 goes one step ahead by defining what constitutes ‗gross negligence‘ by stating that there should be a clear intention backed by strong evidence attributable to the doctor to make him criminally liable. In the case of Martin F. D‟Souza V Mohd. Ishfaq9 kidney transplant and medicines being administered post-operation wherein there is a dispute about the medicine itself and the dosage. In 1991, the patient who was suffering from chronic renal failure went to Nanavati Hospital, Mumbai for kidney transplant. He was undergoing haemodialysis twice a week. Later he got his kidney transplant done at Prince Aly Khan Hospital. During his treatment at Nanavati Hospital he did not complain of deafness. At Nanavati Hospital he was prescribed Amikacin of 500 m.g. twice a day for 14 days. Much later, the patient filed a complaint at the National Consumer Dispute Redressal Commission, New Delhi and claimed compensation of Rs. 12 lakhs as his hearing had been affected. He complained that the dosage of
72004 (6) SCALE 432. 8JacobMathew v. State of Punjab (2005) 6 SCALE 130. 9AIR 2009 SC 2049 International Journal of Socio-Legal Research 44 Volume 1 | Issue 1 | ISSN- 2393-8250
Amikacin was excessive and caused hearing loss. The matter finally went to the Supreme Court. Almost all earlier cases pertaining to medical negligence have been discussed by the Supreme Court in the instant case and it was held that the doctor and the hospital were not negligent.
Interestingly, this case very strongly defended the position of doctors vis-à- vis the patients. The court has made an interesting observation: ……the law, like medicine, is an inexact science. One cannot predict with certainty an outcome of many cases. It depends on the particular facts and circumstances of the case and also the personal notions of the Judge concerned who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood…….
In Minor Marghesh K. Parikh V Dr. Mayur H. Mehta10Marghesh, a minor, was admitted in Dr. Mehta‘s hospital with the complaint of loose motions. He was injected glucose saline through his right shoulder and later through the left foot, which swelled and turned black upto the knee. He was taken to another hospital where the doctor amputated the left leg below the knee as he had developed gangrene. Marghesh, through his father, filed a complaint in the State Commission and claimed compensation for the negligence of Dr. Mehta. It was allowed. Dr. Mehta appealed in the National Commission, where it was held on the basis of expert opinion of another doctor that there could be ten other reasons for gangrene. Marghesh appealed in the Supreme Court, which took strong objection to the National Commission‘s decision based on the solitary ground of an expert opinion and did not pay any attention to Dr. Mehta‘s conduct during the proceedings. Dr. Mehta did not produce the case papers for six long years and did not produce a very important key witness, a doctor who also involved in the treatment. The Supreme Court allowed the appeal with the
10AIR 2011 SC 249 International Journal of Socio-Legal Research 45 Volume 1 | Issue 1 | ISSN- 2393-8250
observation that the National Commission should have been much more diligent and cautious.
This judgment gives in a nutshell, most of the recent cases decided by the Supreme Court. It is more to do with the way the National Commission functions and also a missive as to how the Consumer Courts need to exercise discretion. The facts of the case very clearly tell us that the patient was not brought in a precarious condition to Dr. Mehta‘s hospital and the treatment given resulted in amputation of the left leg. There was no apparent reason for this to happen and hence, Dr. Mehta and his hospital are prima facie liable. However, the Supreme Court remanded the matter to the National Commission to be finally decided in a speedy manner.
The most important element in a case of negligence or a malpractice suit is that the patient must prove that the failure to take any action or negligent action by the doctor was the direct cause of harm suffered by him. In most of the cases of negligence, Res Ipsa Loquitor11 doctrine is applicable. Ordinarily in cases of medical negligence the onus is on the patient to prove that the act of doctor was negligent. But when doctrine of Res Ipsa Loquitor is applied the onus shifts from the patient to the doctor and doctor has to prove that his act was not negligent.
―Medical service‖ falls under the purview of the Consumer Protection Act in the following cases:
Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical.
11 Res ipsa loquitur means ‗the thing speaks for itself‘ is an exception to the general rule that the plaintiff has to discharge the burden of proving negligence on the part of the defendant. International Journal of Socio-Legal Research 46 Volume 1 | Issue 1 | ISSN- 2393-8250
Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services.
Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge, irrespective of the fact that the service is rendered free of charge to persons who are not in the position to pay for such services. Free services would also be "Service" and the recipient a "consumer" under the Act.
Service rendered by a medical practitioner or hospital/nursing home if person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company. Where as a part of the condition of service, the employer bears the expenses of medical treatment of a employee and his family members dependents on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service.
When the service provided by the medical practitioner falls under any of the above categories and if there is any deficiency or negligence in his service then he can be held liable under Consumer Protection Act.
A medical service does not fall under the purview of the Consumer Protection Act in the following cases:-
Where service is rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer in a hospital/nursing home where such services are rendered free of charge to everybody. Where services are rendered under ‗contract of personal service‘ and not under ‗contract for personal service‘. International Journal of Socio-Legal Research 47 Volume 1 | Issue 1 | ISSN- 2393-8250
It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence. First, it must be established that there is a duty of care (between a doctor and patient this can be taken for granted). Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. But in addition, third it must be shown that there was a causal link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.
The doctrinal shift
The House of Lords ruling in Bolitho signalled a shift away from Bolam. It was no longer enough for the standard of care proclaimed by a defendant doctor to be endorsed by a responsible body of peers. In minority judgment comments in Bolitho, it was emphasised that the word "responsible" in the traditional formulation of the Bolam test meant that responsible practice is that which withstands the scrutiny of "logical analysis" from a judicial perspective.
The clinical practice, however prevalent within the medical profession, would perhaps be unlikely to withstand logical scrutiny if that practice is contrary to a clear consensus emerging from the evidence base. In his opinion delivered in the Bolitho case, Lord Browne-Wilkinson indicated that experts should direct their minds to the question of comparative risks and benefits in order to reach a defensible conclusion on the matter in question. A clinical conclusion which does not have risk analysis at its heart is not likely to be deemed a responsible conclusion.
Bolitho has called attention to this issue and will therefore take effect not only in determining the logical basis of the course of action offered by the International Journal of Socio-Legal Research 48 Volume 1 | Issue 1 | ISSN- 2393-8250
defendant, but also by engaging more forcefully in assessing risk analysis. Properly considered clinical guidelines will similarly weigh the risks and benefits. This consonance with doctrinal changes may be a further factor for evidence-based guidelines to play a greater part in medical litigation proceedings.
Why Bolitho should be adopted in India
Unfortunately, medical negligence occurs every day in Indian hospitals and there are believed to be almost a million such occurrences every year. Around one in 10 patients are believed to suffer further as a result of their treatment in hospital and a proportion of these people will go on to claim personal injury compensation through a medical negligence claim.
The Bolitho test makes it possible to get quick relief as it increases the burden on the medical practitioner and thus leaves more scope for compensation. Unlike the Bolam test, the Bolitho test says that the court should not accept a defence argument as being "reasonable", "respectable" or "responsible" without first assessing whether such opinion is susceptible to logical analysis. However, where there is a body of medical opinion which represents itself as "reasonable", "respectable" or "responsible" it will be rare for the court to be able to hold such opinion to be other than represented. The Bolitho ruling means that testimony for the medical professional who is alleged to have carried out the medical negligence can be found to be unreasonable, although this will only happen in a very small number of cases.
Looking at the increasing amount of litigation for medical negligence in consumer forums in India, it is high time that the Indian courts adopt the same model and implement it in the larger interests of the public. International Journal of Socio-Legal Research 49 Volume 1 | Issue 1 | ISSN- 2393-8250
Conclusion:
With the awareness in the society and the people in general gathering consciousness about their rights, measures for damages in tort, civil suits and criminal proceedings are on the augment. Not only civil suits are filed, the accessibility of a medium for grievance redressal under the Consumer Protection Act, 1986 (CPA), having jurisdiction to hear complaints against medical professionals for 'deficiency in service', has given rise to a large number of complaints against doctors, being filed by the persons feeling aggrieved. The criminal complaints are being filed against doctors alleging commission of offences punishable under Sec. 304A or Sections 336/337/338 of the Indian Penal Code, 1860 (IPC) alleging rashness or negligence on the part of the doctors resulting in loss of life or injury of varying degree to the patient. This has given rise to a situation of great distrust and fear among the medical profession and a legal assurance, ensuring protection from unnecessary and arbitrary complaints, is the need of the hour. The liability of medical professionals must be clearly demarcated so that they can perform their benevolent duties without any fear of legal sword. At the same time, justice must be done to the victims of medical negligence and a punitive sting must be adopted in deserving cases. This is more so when the most sacrosanct right to life or personal liberty is at stake.
An indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society. There must be a link between fault, blame and justice requirement.
This may not be understood as holding that doctors can never be prosecuted for an offence of which rashness or negligence is an essential ingredient. There is a need for care and caution in the interest of society; for, the service which the medical profession renders to human beings is probably the International Journal of Socio-Legal Research 50 Volume 1 | Issue 1 | ISSN- 2393-8250
noblest of all, and hence there is a need for protecting doctors from frivolous or unjust prosecutions. Such malicious proceedings have to be guarded against and genuine complaints must be ensued with extreme punitive stings. Thus, a complainant has to produce prima facie evidence before the Court to support the charge of rashness or negligence on the part of the accused doctor.
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HANDLING INTERNATIONAL ECONOMIC LAWS ALONGWITH SUSTAINABLE DEVELOPMENT AND ECONOMIC DEVELOPMENT
Vinod Kapoor* Priya Nagpal** History
In July 1944, the Bretton Woods Conference gave birth to the International Economic Institutions namely, the International Bank for Reconstruction a Development (World Bank), The International Monetary Fund (IMF) and the International Trade Organization. While the first two commenced on 27th Dec, 1945, the International Trade Organization could not be established due to the resistance from US Senate. Alternatively, however, a protocol Provisional Application was signed by 23 original members; India being one of the founder members. On 1st January, 1948 the protocol introduced General Agreement on Tariffs and Trade or GATT, to bring order in the 'law of jungle' in International Trade. The GATT remained the only multilateral body, setting rules for international trade from 1948 to 1994. The scope of GATT continuously expanded with every Trade round.
International Economic Law: GATT trade round and creation of WTO1
Eight Trade rounds of GATT took place, from 1947 to 1994. The eighth round known as Uruguay Round continued for 8 years and had been the most comprehensive and the most debatable one. It sheltered almost every Trade, banking, telecommunication, transportation, pharmaceuticals, etc. it turned out
*5th Year Student, University of Petroleum and Energy Studies, Dehradun **4th Year Student, University of Petroleum and Energy Studies, Dehradun 1 http://www2.econ.iastate.edu/classes/econ355/choi/wtoroots.htm
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to be the largest Trade cooperation that has ever been undertaken in human history.
Uruguay Round not only reviewed all the original articles of GATT', but also encompassed outstanding policy issue like Trade in Services, Intellectual Property (hitherto not dealt with GATT), reform in trade in Textiles and Agriculture etc. there were a lot of differences among the member nations due to which the round failed several times during these 8 years. Mr. Arthur Dunkel, the Director General of GATT, presented a compromise draft - 'Final Act', which became the basis for the final agreement. Finally, on 15th April, 1994 the agreement was signed by the Ministers of almost all the participating countries representing their Governments at Marrakesh, Morocco. The agreement, inter alia, mandated creation of World Trade Organization to administer the agreements on Trade, Services, and Intellectual Property Rights and like.
Introduction
The World Trade organization (WTO) is an international organization which is formed to regulate and liberalize international trade. It was established on January 1, 1995, it succeeded General Agreement on Tariffs and Trade (GATT) which was created in 1947 and contributed to international trade for almost five decades as a de facto international organization. The WTO frames rules and regulations for the trade among the countries around the world; it helps in negotiations among the countries, it implements new trade agreements, and is in charge of policing member countries adherence to all the WTO agreements, signed by the bulk of the world trading nations. The WTO‘s ministerial conference meets every two years, which governs WTO. The general council ensures that the decisions of the conference policy are implemented and also takes care about day to International Journal of Socio-Legal Research 53 Volume 1 | Issue 1 | ISSN- 2393-8250
day administration and a director- general, who is appointed by the ministerial conference. The WTO's head quarters are located in Geneva, Switzerland.
Mission, Functions and Principles Mission of WTO with respect to Economic Laws
The main goal of WTO is to aim at the welfare of the people of its member countries, specifically by reducing trade barriers and providing a platform for negotiation of trade. Its main mission is "to ensure that trade flows as smoothly, predictably and free as possible". The main mission is further discussed in certain core functions serving and safeguarding five fundamental Principles, which are the base of the multilateral trading system.
Functions Among the various functions of the WTO2, there are few which are regarded by analysts as the most important. It oversees and controls the implementation, administration and operation of the covered agreement. (1) WTO is a platform for negotiations and for settling disputes. (2) It revises and reviews the national trade policies, and to ensure the coherence (3) It ensures transparency of trade policies through surveillance in global economic policy making. (4) It assists the developing, least developed and low-income countries transition to adjust to its rules and disciplines through technical cooperation and training.
2 Dr. DInesh Raghuwanshi, WTO and Indian Banks Issues and Challenges, January, 2012 International Journal of Socio-Legal Research 54 Volume 1 | Issue 1 | ISSN- 2393-8250
(5) It cooperates closely with other International Economic organizations namely IMF and World Bank.
Principles
The WTO only establishes a framework for trade policies; it does not define or specify outcomes. It only sets up the rules of the trade policy games. Five Principles which are of particularly important in understanding both the pre-1994 GATT and the WTO
1. Non discrimination: It has two major favored nations (MFN) rule, and the both are embedded in the main WTO rules on goods, services and intellectual property, but they are different in precise scope and nature across these areas. 2. Reciprocity: It reflects both a need to limit the scope of free-riding that may give birth to the scope of free riding that may arise because of the MFN rule, and to a wish to obtain better access to foreign markets. 3. Binding and enforceable commitments: The tariff commitments made by WTO members in a multilateral trade negotiation and on accession are enumerated in a schedule of concessions. These schedules establish "Ceiling Bindings" a country can change its bindings, but only after negotiating with its trading partners, which could mean compensating them for loss of trade. The complainant country can seek WTO dispute settlement procedure if satisfactory claim is not met. 4. Transparency: The WTO members are required to issue and publish their trade regulations, to maintain institutions allowing for the review of administrative decisions effecting trade, to respond to requests for information by other members, and to notify changes in trade policies to the WTO. International Journal of Socio-Legal Research 55 Volume 1 | Issue 1 | ISSN- 2393-8250
5. Safety Valves: In specific circumstances, governments are able to restrict trade. There are three types of provisions in this direction: articles allowing for the use of trade measures to attain non economical objectives; articles aimed at ensuring "fair competition"; and provisions permitting intervention in trade for economic reasons.
Has International Economic Law(IEL) exceeded the limits and gone too far off?
In giving a new structure to International Economic laws, the developed countries have not played an important role and it is not surprising and have never planned of any events and never played a major role in world economy. Recently developing countries are under huge political and economic pressure to give a new face to IEL and play crucial role in globalization . The consequence of globalization on sovereignty has been witnessed by most international relations, experts and researchers, specialists, political economists and international lawyers. Such economists generally do not interfere in international law or state sovereignty; some concepts of globalization regarding globalization are inevitable. Political scientists and lawyers explain the normative concepts such as sovereignty relates to proper functioning and governing the world economy should be the political and economic agenda of the authorities, rather focusing on empty normative concepts. There are in general some social scientists that are more serious regarding impact of globalization on sovereignty of state and international law.
International lawyers and research have adopted a range of approaches to understand and conceptualize the impact of globalization on IEL and International Journal of Socio-Legal Research 56 Volume 1 | Issue 1 | ISSN- 2393-8250
international law on whole. Most of these concepts have been realistic as they attempt to incorporate the earth-shattering changes that have changed the face in international economic law. José Alvarez in his documented study provides clear-cut evidence that recently 15 international organizations have taken the responsibility and have been careless in incorporating international law rules and notes that this process is changing the meaning and structure of sovereignty. A more motivated attempt to fight with the profusion and complex nature of new international economic rules is seen in the work of lawyers who have formulated principles and remedies of administrative law to interpret the emerging IEL regulatory framework. The weakness remaining behind this approach is that political problem which is generated by current process of economic globalization can be resolved by applying principles pertaining to USA and Europe. It does not look at the domestic setup of administrative law is a core feature of the rule of law, a high-quality and well-organized system of administrative law presupposes a physically powerful political system, something that is sadly missing at the international level.
Definition of IEL
According to author the definition of IEL covers the following sub-topics: Law of establishment, Law of investment, Law of economic relations and economic institutions, and Law of regional economic integration. Yet there are others areas that would include further topics, including the international law of development or law of human rights. In its widest subtext, IEL consists of rules of public international law that directly connected to economic exchanges between the subjects of international law; hence definition also covers a significant part of the discipline of public International Journal of Socio-Legal Research 57 Volume 1 | Issue 1 | ISSN- 2393-8250
international law. If one broadens the ambit by including all those aspects of international law that is affected by economic activities, then the discipline of public international law would be completely covered and under ambit of IEL. 3
Principles governing International Economic Law
Searching for economic sovereignty, developing states established the New International Economic Order (NIEO).4 This ―new‖ rule emphasized on permanent sovereignty over natural resources by the states. In trail of NIEO, other objectives also included environment and sustainable development5. Thus the states seeking developments, a state that is enthusiastic of economic development has to have:-.
Stable sovereignty over its natural resources Non-natural resources or economic activities also under sovereignty which are under its jurisdiction; and including human resources Freedom to choose and carry out its own economic self determination and governance principles. Prohibition on interference in its economic affairs by way of threat or force.
International economic law focuses on the need of preserving the environment and the sustainable use of natural resources. This obligation is equal in nature on every state and there also lies an obligation on the state not to damage the environment of nearby states or constitute environmental threat thereof.
3 John H. Jackson, Global Economics and International Economic Law, 1998 4 Falk R.A. and Black C.E, The Future of the International Legal Order, Vol 1, New Jersey, Princeton University Press 5 ibid International Journal of Socio-Legal Research 58 Volume 1 | Issue 1 | ISSN- 2393-8250
Discussing on Key Concepts International economic law as explained enhances state‘s sovereignty, promotes reciprocity and ensures economic sovereignty. It ensures safe activities in areas of trade, commerce, investment, and development. Under the support of international economic law, the NIEO for the development of the ―third-world‖ countries was adopted by the United Nations General Assembly.
Article 1, 2, 4 and 5 outlines the economic rights and duties of states.
Article 1 explains that every state has sovereign right to choose political, social and cultural rights in accordance to its citizens without any external coercion or force.
Article 2 states that every state has full sovereignty and possession over the use and disposal of its wealth, natural resources and economic activities. The state has power of supervision and control over foreign investment in accordance to its laws and regulation in conformity to its national objectives. It also has control over transnational corporations within its jurisdiction and takes steps to ensure that such actions comply with its laws, rules and regulations.
Article 4 discusses about the freedom of international trade and forms of economic cooperation without any political, cultural and social interference. No state shall be subjected to discrimination on such basis. State is free to enter in economic relations, enter into treaties and bilateral and multilateral treaties as per its requirements and wish.
International Journal of Socio-Legal Research 59 Volume 1 | Issue 1 | ISSN- 2393-8250
Article 5 follows that state has right to associate and participate in organizations of primary commodity producers so as to develop national economy.
Economic Development
Development in the economic logic means activities that would lead to good or positive change, to have control over material assets, intellectual property resources and ideology; and obtain basic physical necessities of life including food, clothing, and shelter, education, employment, equality, medical needs, participation in government, gender justice, sustainable development and peace, law and order.6 Schumpeter7 saw actual development as a course generated within and by the society by forces propagated and revitalized by the active members of the society, and that such a process cannot be started by foreign participation. The major flaw of Schumpeter's study of economic development lies in his view of the interconnection between the social structure and economic development where he directed that economic development cannot happen unless the social structure was organized and structured to near perfection.
Karl Marx8 observed that there needs to be technological progress which is a prime mover of capitalist growth and gave an important place to the entrepreneur in his development analysis. Technological progress is essentially labour-saving and capital-absorbing, the final result of which is that when it gains momentum; workers are unemployed, adding to the
6 Dudley S, ―The Meaning of Development‖, Eleventh World Conference of the Society for International Development, New Delhi, 1969. 7 Ebomuche N.C. and Njoku A.C, Development Economics, Owerri I.G. Publishers, 2005 8 Onyemelukwe C.C. Economic Underdevelopment: An Inside View, London Longman 1974. International Journal of Socio-Legal Research 60 Volume 1 | Issue 1 | ISSN- 2393-8250
industrial unemployment of the nation. By replacing of labour by capital, wages are kept low by capitalists resulting in struggle in between the class in which the capitalist group is defeated.
According to Hoffman9 economic development in any country provides necessary indices of status and growth, but their true meaning for social development must be measured by the degree to which potential well-being is converted into the actual welfare and development of the people. Further adds to describe human development is measured by physical, intellectual, social, and moral development and welfare of man in the same way that a truly developed society must be a moral society, a physically healthy society, and an intellectually capable society.
According to Pearce and Warford10, economic development is defined as achieving and fulfilling a set of social goals, and since these goals change over time, economic development can be said to be a process as it is achieved over a period of time gradually as the time passes by.
Developmental Stages of the Term or Concept of Sustainable Development Global Attempts on Sustainable Development
International Economic Law previously did not pay heed to environmental concerns. International economic and commercial actions continued to get bigger until lately with little concern for the damage done to the environment by these activities and threats caused. After the Second World War period the main agenda of International Economic Law was to promote the free movement of goods and capital
9 Hanson and Brembeck, Evaluation and Development of Nations, Holt Rinehart and Winston Inc., New York 1966 10 Pearce D.W. and Warford J.J, World Without End: Economics, Environment and Sustainable Development York, Oxford University Press 1993. International Journal of Socio-Legal Research 61 Volume 1 | Issue 1 | ISSN- 2393-8250
across borders and enhance exports and enabling states to utilize their natural resources to the utmost extent possible for their economic development. IEL tried to expand and commercialize without paying attention to the environment aspect but lately environment law has influenced IEL. The IEL principle of sustainable development, a relatively new concept, has had a deep impact on IEL. Within the UN's economic development agenda, the theory of economic development began in 1987 with the beginning of the concept of sustainable development, which sought to compel some restraints on economic development in order to protect the burning environment.
The Rio Conference11 considered both the environment and development, and they considered it complimentary and connected to each other. Principle 1 of the Rio Declaration which relates to Environment and Development declared that human beings were at the utmost priority for sustainable development. It declared that state has the right under IEL to explore their natural resource in confirmation to their environment policies Principle 2 of the Declaration stated that States have the responsible and should ensure their activities within their jurisdiction and not to cause damage to the environment threat of other states. What is more important, principle 12 of the Rio Declaration injects the sustainable development aspect into IEL issues and highlights the role of IEL principles for the effective operation of the rules of international environmental law. Principle 12 declares that, States should cooperate to promote an encouraging and open international economic system that would result in economic growth and development in a sustainable manner in all countries, and effectively control environment degradation. There should not be
11 Rio De Janeiro Conference, Brazil, 1992 International Journal of Socio-Legal Research 62 Volume 1 | Issue 1 | ISSN- 2393-8250
arbitrary and unjustified discrimination on trade policy measures for international trade. International consensus should be taken to have environmental measures relating to trans-boundary or global environmental issues
Sustainable Development
The emergence and persistent relevance of sustainability came towards end of the 20th century. The shift in model from the final desire for economic growth to sustainability becomes the new order and concept, which international economic law tries to achieve. A wholesome understanding, acceptance, adjustment and implementation of the concept of sustainable development stand out as the major tool for achieving a balance between economic, social and environmental objectives.12
Definition of Sustainable Development vis-à-vis IEL
Sustainable development meets the needs of the today without compromising the skill of future generations to meet the needs of tomorrow. Sole benefit of today and acts done presently should not harm coming future is what IEL aims. Sustainable development in respect over-population is directly alarmed with increasing the adequate standard of living of the poor at the grassroots and primary level, which can be measured by increasing volumes of food, real income, education, health and medical, sanitation and water supply,
12 Nwafor J.C, E.I.A. For Sustainable Development: The Nigeria Perspective, Enugu, EDPCA Publications, 2006 International Journal of Socio-Legal Research 63 Volume 1 | Issue 1 | ISSN- 2393-8250
emergency stocks etc; and only indirectly concerned with economic growth at national level.13 In other words, the primary objective of reducing the poverty of the world by, having provision of permanent and safe livelihoods which lessens resource wastage, environmental degradation, cultural disruption and social insecurity. Based on the previous, the principle of sustainable development must be understood in terms as:- a) Long lasting goal of resource management b) Balance between societal, economic and environmental objectives c) Development and not just growth is the dominant consideration. d) Human desires are balanced. e) Presumptions for economic growth are balanced by the requirements of social equity.
International Economic Law and International Development Law
After World War II another concept which emerged and which the countries had to face was International Development Law. It represented an effort to find a more reasonable legal approach to the core areas of IEL, including international trade relations and nation‘s responsibilities towards foreign investors and their home countries. 14
International economic relations of developing countries, also the development, fall within the region of IEL. Hence many scholars are of the view international development law is a distinct branch of international law,
13 Barbier E. B. ―The Concept of Sustainable Economic Development.‖ Environmental Conservation 14 C. Wilfred Jenks, Law, Freedom and Welfare 64, 1963 International Journal of Socio-Legal Research 64 Volume 1 | Issue 1 | ISSN- 2393-8250
is a subset of IEL. IEL has a wider and broader scope and thus overpowers International Development Law.
Emphasis on Developing Countries
Although sustainable development has a worldwide concept, however there is a realistic angle for applying of the concept in developing countries. The concept must be applied to environmental, socio-economic, political and developmental spheres. Therefore, the circumstances of the developing countries must be different. The developed countries are mostly disturbed with ecological problems, pollution, global warming etc. The developing or so called underdeveloped nations apart from meeting basic needs of the citizens hardly focus on IEL so as to bring forward the nation in terms of economic relation and trade, export which is beneficial for the nation. The research and experts have proved and have significant evidences to show that while everybody is pushing on the need for sustainable development, the underdeveloped countries are far off from the world concern and participating in the treaties, conferences and multilateral and bilateral agreements which form a basis of IEL. What such countries need to concentrate is on economic laws and rules which are being regulated by the universal standard organizations. Even if their environment, ecosystem is being harmed it would be cover by following such treaties and basic necessities would automatically be fulfilled if trade, commerce, economic regulation at international level are followed.
Environment is a basic need for the coming future generations. There should be international concern to match development strategies and to guard both the richer and economically backward countries; the developed and developing countries, and also, the first and third world countries. What affects the environment of one affects the environment of all. International Journal of Socio-Legal Research 65 Volume 1 | Issue 1 | ISSN- 2393-8250
Conclusion
This paper has clearly endeavored to show either directly or in some way IEL has been concerned with economic and sustainable development. Immediately after post-war period and until the 1980s, IEL was weak, pathetic and almost of no use, thus allowing developing countries space to formulate and regulate their own economic policies. During the recent period of growing globalization, IEL has played a vital role as a vehicle for executing laws and policies in the developing world. It has become a requisite for developing countries implement a strict set of rules, while developed countries, which are a world leader at promoting globalization, have accepted these rules half-heartedly. Instead of handling the urgent need to reform, modify, alter and replace old international institutions and build new and effective new institutions to handle the process of globalization, these countries have aimed at bilateral and regional planning, a strategy that gives them sufficient political space to secure reward and returns over their close economic competitors. If the world‗s leading economically sound countries with higher reputation and stake take seriously the task of incorporating new and more effective institutions for the world market, and, if there emerges a new consensus which is taken keeping in mind the requirements and needs of the developing nations, there will then be a distinctive opportunity to establish new IEL rules and procedures to maneuver and manage globalization. This is a complicated mission which will be successful only if it is carried out in consultation with all interested parties. International Journal of Socio-Legal Research 66 Volume 1 | Issue 1 | ISSN- 2393-8250
PROSTITUTION- A REASON FOR HUMAN TRAFFICKING
Prachi Singh* Risha Qureshi**
INTRODUCTION „Each person is created with inherent dignity, therefore each person, including women, should be respected because of this inherent dignity. In her perspective, sex trafficking is a degradation of a woman‟s body and destroys a woman‟s inherent dignity‟. Prostitution is the second largest crime after the drugs and arms trafficking in the world1 Women and children have been exposed to unprecedented vulnerabilities; commercial exploitation of these vulnerabilities has become a massive organized crime and a multimillion dollar business. They are now being treated as an object for the benefit and the profit gained. India is among the top countries that are related in the business of sexual exploitation and commercial sex business and for this women of our countries are exported to other countries. Human trafficking has been defined variously. Prostitution is one of the major reasons for human trafficking. Although, human trafficking comprises of both men and women including children, but our article mainly focuses on the women and girls who are trafficked for the reason of prostitution.
DEFINITION: For the purpose of study, the working definition of trafficking which was adopted has been stated in the U.N. Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children,
*3rd Year student, Symbiosis Law School, Pune **3rd Year student, Symbiosis Law School, Pune 1 National Commission for Women. International Journal of Socio-Legal Research 67 Volume 1 | Issue 1 | ISSN- 2393-8250
supplementing the United Nations Convention against Transnational Organised Crime, 2000, to which India is a signatory. UN Protocol on Trafficking (Article 3) defines human trafficking or sex trafficking as, “Trafficking in persons shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”2 Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labor or services, slavery or practices similar to slavery, servitude or the removal of organs. The ‗consent‘ of the victim of trafficking shall be irrelevant where any of the means set forth above have been used. ‗Consent‘ is irrelevant in case of children even if this does not involve any of the means set forth above.3 It categorizes the definition into three parts: The „action‟ element includes “recruitment, transportation, transfer, harboring or receipt” of persons. The „means‟ element includes “by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”. Any of the actions in combination with any of the means can be defined as
2 United Nation Office of Drugs and Crime (UNODC); https://www.unodc.org/unodc/en/human-trafficking/what-is-human- trafficking.html?ref=menuside 3 A Report on Trafficking Women and Children in India, National Human Right Commission, 2003 International Journal of Socio-Legal Research 68 Volume 1 | Issue 1 | ISSN- 2393-8250
human trafficking as long as the third constitutive element, namely the „purpose‟ can also be established. The „purpose‟ element of human trafficking is „exploitation‟. India has also signed the International convention at New York in 1950, which required a legislation to implement the same. There had been number of local acts in India, but they were neither uniform nor effective. Therefore, a new legislation was enacted in 1956 known as the „Suppression of Immoral Traffic in Women and Girls Act, 1956. The study would deal with the legislation in the later part of the paper. A report released by the National Human Rights Commission (NHRC) shows the rate of human trafficking has increased by 60.34 percent in one-and-a-half years. The number of people trafficked or attempted for trafficking increased to 29,000 in 2012/13, compared to 11,500 in 2011. There are thousand examples of women trafficking in India and mostly the reason is for sex trade to sell them in the market and make profit out of their pain, they are forced to get into it and later it becomes a misery of their life as they have to live with it. According to the 2013 National Crime Records Bureau (NCRB) report, 24,749 children and women between the ages of 15 and 30 were kidnapped and sold across the country4. Recently there was an incident in Thane, where a 24 year old girl was thrashed by three men and her private parts were mutilated allegedly because she was brought for flesh trade and she resisted becoming a part of the prostitution racket5. The three were booked under Section 325 and Section 370 of IPC. There are millions of girls in India who are brought or kidnapped from different places and then forced into prostitution. The reasons for increasing trafficking in India are like Social inequality, regional gender preference, imbalance and corruption are the other leading
4 Human trafficking caters to demand for brides, Ashfaq Masoodi, Mint, September 10, 2014 5 Section 325 of Indian penal Code: voluntarily causing grievous hurt and Section 370 buying or disposing of any person as a slave International Journal of Socio-Legal Research 69 Volume 1 | Issue 1 | ISSN- 2393-8250
causes of human trafficking in India. Girls and women are not only trafficked for prostitution but also bought and sold like commodity in many regions of India where female ratio is less as compared to male due to female infanticide. These are then forced to marry. Debt labour is not known much but it is illegal in India and prevalent in our society. People running out of cash generally sell their kids as debt labour in exchange for cash. Both boys and girls are sold for this purpose and generally not paid for years6.
PROSTITUTION- the most common reason for Human Trafficking in India Bride burning, rape, female infanticide, sati wife beating, prostitution, kidnapping, abduction, etc... The crime against women seems never ending yet it is increasing at an alarming rate in today‘s world especially in developing countries like India is uncountable. The variety and dimensions of these crimes show human ingenuity to commit crime, but for some strange reasons they are reduced. The cold brutal statistics that piled up in the morgue of government offices, welfare homes and court rooms confirming our worst fears that the single largest minority of our country is viciously battered into submission. The women who are involved in the prostitution have to suffer mentally and physically. Researchers note that sex trafficking plays a major role in the spread of HIV. Human traffickers often use a Sudanese phrase ―use a slave to catch slaves,‖ meaning traffickers send ―broken-in girls‖ to recruit younger girls into the sex trade. Sex traffickers often train girls themselves, raping them and teaching them sex acts. A human trafficker can earn 20 times what he or she paid for a girl. Provided the girl was not physically brutalized to the point of ruining her beauty, the pimp could sell her again
6 Human Trafficking In India Must End, Gagandeep Kaur, 13th,November,2013 International Journal of Socio-Legal Research 70 Volume 1 | Issue 1 | ISSN- 2393-8250
for a greater price because he had trained her and broken her spirit, which saves future buyers the hassle
Historical background of the Prostitution in India Prostitution is not a new phenomenon, it existed since time immemorial. In India, the Vedas, the earliest of the known Indian literature, abound in references to prostitution as an organized and established institution. In Indian mythology there are many references of high-class prostitution in the form of celestial demigods acting as prostitutes. It is referred to in Vedas, Puranas, Mahabharata and Ramayana. As a matter of fact public women occupied an important place in the city life of ancient India. The Puranas state that the very sight of prostitutes was supposed to bring good luck. They had an honored place because of the belief that cohabitation of men with such women had resulted in prostitutes. They are referred to as Menaka, Rambha, Urvashi, and Thilothamma, who were known for their charismatic beauty. The Apsaras and urvashis were known as heavenly prostitutes. They were sent to the lord of Gods and other Gods too, to entice the human being who were engaged in the practice of austere penance for gaining the knowledge of supreme reality7. They are described as perfect embodiments and unsurpassed beauty and feminine charms. They are highly accomplished in music and dance. They entertained divinities and their guests in the court of Lord Indira, the Lord of Hindu Gods. They were also sent to test the real depth of ‗tapasya‘ (penance) and devotion of great saints8. Aryan rulers of India followed the system of celestial court and developed the system of guest prostitution. They presented well-accomplished maidens
7 64th Report on Suppression of Immoral Traffic Act, 1956, Law Commission of India 8 Biswanath,1984. International Journal of Socio-Legal Research 71 Volume 1 | Issue 1 | ISSN- 2393-8250
in token of friendship of kings. They were also offered as ransom to the victor to part with his most beloved prostitute. Prostitutes were common during the reign of the Pandavas and Kauravas9. They were an important part of the court and both dynasties possessed harems of aristocracy in Brahmanic India. Having concubines is common among the aristocracy. Kautilya‘s famous „Arthasasthra‟ contains rules for prostitutes and their activities and gives an account of how prostitutes should behave and how their lives are ordered. A code of conduct was prescribed, for people seeking their favour and for them. They had certain definite prerogatives, rights and duties. Vatsyayan, the noted Indian sage of the Third century B.C. devoted a number of pages on prostitutes and their amorous ways of life in his monumental treatise Kama sutra.
Prostitution during Mughal period: Rules of conduct for popular and successful practice of their trade have been prescribed. His classification of the prostitutes indicates that the common, private, and the clandestine prostitutes of today had their prototypes in those olden daysWhen faced with economic problem they had no choice but to take recourse to the laziest of all the trades, the trade of sex.
Devdasi: Religious Prostitution In the Devdasi system, what happens is that some people in India make a pact with the God and if their wish is fulfilled by the God then they marry their daughter to the God in return. From that very moment she belongs to the God and is known as the ‗temple slave‘ or Devdasi. Technically she is married to the Deity and so belongs to the priest to be used. She cleans the temple and at night fulfils the desires of the priest. These women lead a life
9 Mahabharata, Veda Vyas. International Journal of Socio-Legal Research 72 Volume 1 | Issue 1 | ISSN- 2393-8250
with no dignity and respect. They are dehumanized. It is still prevalent in certain parts of our country like parts of Maharasthra, Andhra Pradesh.
Prostitution during British period: The place of women in India did not improve during the British regime. Conditions continued to deteriorate and in the absence of state control and regulation, prostitution thrived on a large commercial scale. Social disabilities and economic hardships of women made them an easy victim to the gangsters of this profession. This shows that prostitution existed in India in some form or the other from time period to period but the evil has continued to persist. Today prostitution exists in almost every big city of the country. Women from third world countries are given allurement to work in India, as waitresses, models, artists and cabaret performers which subsequently lead to their exploitation by the flesh traders.
Prostitution in today‘s scenario: There are varieties of reasons because of which any women or girl enters into this vicious circle. The major reason for it is poverty. But it is only one of the reasons for it. The helplessness of women forces them to sell their bodies. Many girls from villages are trapped for the trade in the pretext of love and elope from home only to find themselves sold in the city to pimps who take money from the women as commission10. One of the reasons is illiteracy11, as in India major population is still in rural areas and most of them are illiterate. The other reasons as well cause of which prostitution still exist in the society are Natural Disasters, Domestic Violence, lack of employment, Lure of job or marriage with false promises etc. which makes them easy prey for the traffickers.
10 Azad India Foundation. 11 Literacy Rate is mentioned in Finding and Analysis Fig. 3 International Journal of Socio-Legal Research 73 Volume 1 | Issue 1 | ISSN- 2393-8250
Red Light areas in India: “The red light district in Bombay generates at least $400 million per annum in revenue, with 100000 prostitutes serving 365 days a year, at the average rate of 6 customers per day at $2 each.”12 It is certainly mistaken by the people that Red Light Area is that place where the government legalizes the prostitution. But it is certainly not so. If there is particular area where prostitution is very much rampant and is carried out in an organized way, where people (particularly men) come every day, where meeting of prostitutes is a everyday matter. Red light area was first recorded in United States around 1890. The term is derived from the practice of placing a red light in the window to indicate the customers the nature of business. The biggest Red Light area in Asia is Kamathipura in Mumbai. It is also one of the oldest red light areas in Mumbai. In these red light areas, the authority is not able to control the illegal activities. In many of these areas, only child and minor is involved and this vice is done in intimidating and organized manner which are always punishable under the immoral traffic (prevention)act, 1956. However, in reality the law authorities take no such fruitful yet punitive action and their failure on this count may deem to be amounting to abetment in the commission of the offence13.
Prostitution and Trafficking: According to Alison Phinney (2001), the trafficking triangle refers to the space created by the demand, supply and the impunity with which the trafficking is done. According to her, „sex trafficking is driven by a demand for women‟s and children‟s body in the sex industry, fuelled by a supply of women, who are denied equal rights
12 Robert I. Friedman, ―India‘s Shame: Sexual Slavery and Political Corruption leading to an AIDS catastrophe, The Nation, 8th April 1996 13 Immoral Traffic: Prostitution in India by V. Sithannan . B. Sc, M.L. International Journal of Socio-Legal Research 74 Volume 1 | Issue 1 | ISSN- 2393-8250
and opportunities for education and economic advancement and are perpetuated by traffickers who are able to exploit human misfortune with near impunity.” While trafficking and prostitution are inextricably linked, they are not the same. Prostitutes are women who voluntarily offer sexual services in exchange for money. Trafficked victims, on the other hand, are bought and sold for monetary profit, most often leading to forced prostitution. But mostly the girls who are trafficked are sent into flesh trade. On the journey of being trafficked to the brothels the trafficker rapes, tortures, starves, humiliates and drugs the girl during transportation both for his pleasure and to make her more submissive so she is less likely to attempt escape once sold. They are treated and made to accept their conditions, as to live that way for the rest of their life to live without dignity and to accept it as their future. The women are illiterates and become immune to it as they do not know any of their rights and compromise to it. The traffickers do it because they have less risk and high profit in this business as there is hardly any choice of the victim to escape and the victim has no choice but to live with it. India is home to approximately 20 million prostitutes14. While the exact ratio of prostitutes to trafficked victims remains unknown, a CEDPA15 Pride report estimated that 80 per cent of all Indian women engaged in prostitution are victims of trafficking. Every year, thousands of girls and women are abducted, deceived, seduced, or sold for the purpose of Commercial Sexual Exploitation (CSE). They are forced to service hundreds if not thousands of men before being discarded. Trafficking in women and children violates basic human rights to life, liberty and the
14Human Rights Watch quoted in Times of India dated December 24, 2012, http:/articles.timesofindia.indiatimes.com/2012-12-24/people/3598323_1_prostiution- ayah-mumbai-s- kamathipura; 15Founded in 1975, the Centre for Development and Population Activities (CEDPA) is an internationally recognized non-profit organization that improves the lives of women and girls in developing countries. International Journal of Socio-Legal Research 75 Volume 1 | Issue 1 | ISSN- 2393-8250
freedom to chart one's own life course, and instead subjects the victims to cruelty, torture, dangerous and degrading work, and inhumane living conditions. Legal Framework with respect to Human Trafficking and Prostitution: The Indian Constitution prohibits all forms of trafficking under Article 23(1)16. The Suppression of the Immoral Traffic Act, 195617 (amended to the Immoral Traffic Prevention Act) was in response to the ratification of the International Convention on Suppression of Immoral Traffic and Exploitation of Prostitution of Others in 1950 by India. Trafficking has been an area of concern since the early 20th century. It especially attracted attention during the 1980s. More recently, there has been a widening of its focus. However, this was not accompanied by an independent and sustained mass movement, against trafficking in the country. Article 23 of the Constitution of India prohibits the trafficking of human beings. Also the Right against exploitation is a fundamental right which aims at putting an end to all forms of trafficking in human beings at putting an end to all forms of trafficking in human beings including prostitution; The Immoral Traffic (Prevention) Act, 1956 The Immoral Traffic (Prevention) Act, 1956, originally enacted as the „Suppression of Immoral Traffic in Women and Girls Act, 1956, is the most important legislative instrument for the prevention and combat of Legislation on the subject of trafficking in human beings in India. However, till date, its key object has been to inhibit traffic in women and girls with the intention to force them into prostitution as means of earning their livelihood. The provisions of
16Article 23 (1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. 17 Amended in 1986 International Journal of Socio-Legal Research 76 Volume 1 | Issue 1 | ISSN- 2393-8250
ITPA criminalize the persons who procure, traffic and profit from the trade but fails to provide a clear definition of ‗trafficking‘ per se in human beings. The ITPA provisions provide penalty for immoral trafficking, punish traffickers, punish persons keeping a brothel18, Punish persons who live off the earnings of a woman19, and provides welfare measures focused towards rehabilitation of sex workers. The central government under this act has powers to allow police officers arrest without warrant in any premises where this offence is suspected of being committed and rescue a person forced in this profession. The purpose of the enactment was to inhibit or to abolish commercial for the purpose of prostitution as an organized means of living. A careful scrutiny of the act clearly reveals that it was aimed at the suppression of commercialized vice.20 The act dealt with not only a social but also a socio economic problem therefore the provisions of the legislation is more preventive than punitive21. Section 37022 has been recently inserted by the Indian Parliament in Criminal Amendment Act, 2013. The act‘s primary concerned with
18 Section 3, The Immoral Traffic (Prevention) Act, 1956. 19 Section 4, The Immoral Traffic (Prevention) Act, 1956. 20 Ratnamala, In re AIR1962 Madras 31(33) 21 Vishal Jeet v. Union o India (1990) 3 SCC 318 22 Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by First.-— using threats, or Secondly.— using force, or any other form of coercion, or Thirdly.— by abduction, or Fourthly.— by practising fraud, or deception, or Fifthly.— by abuse of power, or Sixthly.— by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking. Explanation I—The expression "exploitation" shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. Explanation 2.—The consent of the victim is immaterial in determination of the offence of trafficking. 2. Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine. International Journal of Socio-Legal Research 77 Volume 1 | Issue 1 | ISSN- 2393-8250
targeting rape and sexual assault, the Bill incorporates a range of other offences dealing with violence against women many of which the Indian Penal Code, 1860 did not envisage. An offence of trafficking shall be punished with rigorous imprisonment for a term of at least seven years, but which may extend to ten years, and shall also be liable to fine23. The new Section 370 criminalizes anyone who recruits, transports, harbors, transfers or receives a person using certain means,24for purposes of exploitation. Exploitation in turn is not defined but is said to include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs. This is further enhanced and graded depending on whether the victim is an adult or minor, if more than one person or minor is trafficked, if the trafficker is a repeat offender and whether the trafficker is a police officer or public servant. Recognizing that targeting the demand for
3. Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine. 4. Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. 5. Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine. 6. If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. 7. When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. 23 Section 370 (2), Criminal Amendment Act, 2013 24 It includes threats, force, coercion, fraud, deception, abduction, abuse of power, or inducement International Journal of Socio-Legal Research 78 Volume 1 | Issue 1 | ISSN- 2393-8250
trafficked labor is often crucial in the fight against trafficking, Section 370A criminalizes anyone who engages a trafficked minor or adult for sexual exploitation. A little before the UN Protocol came into effect, the US passed a domestic legislation in 2000 on violence against women, which included trafficking as well and ranks countries around the world on their anti-trafficking initiatives. Countries performing poorly so as to fall in Tier Three of the annual Trafficking in Persons (TIP) Report risk the withholding of non- humanitarian, non-trade-related foreign assistance. Until 2009, the TIP Report focused unduly on trafficking for sex work. In the initial years of the TIP Reports, India performed favorably but was soon demoted to the Tier Two Watch List between 2004 and 2010 before returning to the Tier Two List in 2011.Yet the impulse to single out prostitution in what is really a larger universe of severely exploited and trafficked labor is remarkable. Thus an ordinance was passed in the parliament in which Section 370 was inserted as new anti- trafficking law.
CONCLUSION: Each person has a right to live a dignified life and in a country like India where the society plays a vital part and the principles of morality play an important role in nurturing the society. In such a society, the prostitution is unacceptable. The legislation which was passed in the year 1956 does not completely legalize the prostitution. Rather, it has given a vague status to the prostitutes in India. The recent era has witnessed a rise in the trafficking of women and girls who are forced to enter into this prostitution. The government must come up with a legislation that entirely bans the prostitution and the illegal trafficking. Therefore, to bring these women and girls come up to the status of living a decent life, government must phase- out plan to combat poverty, rescue, rehabilitate, educate, and train them so International Journal of Socio-Legal Research 79 Volume 1 | Issue 1 | ISSN- 2393-8250
that even they can live their life with dignity and if given an opportunity to come out of this torturous life, they would be able to make a place for themselves and can sustain rather than being crushed by the society. The recommendations above are given to improve their conditions in the society. They should be implemented properly so that even a prostitute, if wants to improve her conditions, we as a society accept her and give her an opportunity to live the same way as we do. International Journal of Socio-Legal Research 80 Volume 1 | Issue 1 | ISSN- 2393-8250
NEXUS BETWEEN INTELLECTUAL PROPERTY RIGHTS AND COMPETITION LAW Neha Mishra* Subhransu Mohapatra**
INTRODUCTION Intellectual Property Rights (IPRs) and Competition Law are bound together with the purpose of achieving economic development, innovation, technological advancement and consumer welfare. Intellectual Property law mainly subjects intellectual assets to the exclusive control of right owners. Intellectual property protects individual interest and allows customer to make choices between competing entrepreneurs, and the goods and services they sell. IPR encourages new ideas and new innovations. While on the other hand competition law seeks to avoid market barriers and benefit consumers by encouraging competition among a multiplicity of suppliers of goods, services and technologies. Unlike IPR competition law protects the market. Competition law prevents monopoly in a market and gives a level playing field.
HISTORY OF IPRs LAW AND POLICY The term intellectual property was used as a specific legal term in mid- nineteenth century. The intellectual property laws mainly related to the rights generated from intellectual activity in the field of industry, commercial, artistic, scientific, etc. IPRs have never been more economically and politically important or controversial – than they are today. Patents, copyrights, trademarks, industrial designs, integrated circuits and geographical indications are frequently mentioned in discussions and
*2nd Year Student, Symbiosis Law School, Noida *2nd Year Student, Symbiosis Law School, Noida International Journal of Socio-Legal Research 81 Volume 1 | Issue 1 | ISSN- 2393-8250
debates on such diverse topics as public health, food security, education, trade, industrial policy, traditional knowledge, biodiversity, biotechnology, the Internet, and the entertainment and media industries. To centralise the law and tackle the problem more effectively the WIPO has enabled an important trade agreement to come into being namely, TRIPS. The main legal instruments for protecting IPRs are patents, copyright (and neighboring rights), industrial designs, geographical indications (GIs), trade secrets and trademarks. There is an increasing importance of intellectual property rights in present time. The rapid development of technology has led to the awareness of the importance of the IPR.
HISTORY OF COMPETITION LAW AND POLICY The simple definition of the competition policy can be all those government measures that directly affect the behaviour of an organisation and structure of industry. Mainly it can be said that the completion policy has two elements. The first: there should be a policy that discourage anti- competition activities and promote competition in local and national level. Secondly: there should be legislations, regulations and judicial precedents against anti-competition activities. These elements altogether can be said as competition law.
OBJECTIVES OF IPRs AND COMPETITION LAW IP protects the interest of an individual while competition law protects the markets. It can be said that the objective of the Competition law is to promote efficiency and maximise welfare, while IPR give license to its owner to exploit the innovation and exclude other from doing so. The idea behind giving the license to the owner under IPR is that, the society has to pay a price to use the innovation of the owner, and the license is kind of the price that society pays. But if we consider Competition law, than its main International Journal of Socio-Legal Research 82 Volume 1 | Issue 1 | ISSN- 2393-8250
motive is only to promote competition which gives better choices to the society at large, i.e. the main motive of the competition law is to promote healthy competition and secure consumers interest.1But with the changing time, there are also changes in the objective of the IP; hence with the change in time the idea of what should be rewarded has also changed.
CONFLICT BETWEEN IPRs AND COMPETITION LAW The term intellectual property refers to the fruits or products of human creativity that includes literature, slogans, songs or new inventions. Hence the property that is the result of thought is called intellectual property. Intellectual Property Rights are intangible rights, though they are in respect of tangible objects. IPR are legally recognised in a widening range of objects. The IP is divided into two broad categories: one is commercial based and the second one is product based. Trademarks, trade names, brands, geographical indication fall under commercial based IP and patents, copyright and designs comes under product based IP2. The main objective of the competition policy is to promote healthy competition and consumer protection. Hence the competition act3 that came into force in 2002 prohibits the exercise of anti-competitive agreements. The act also empowers the competition commission of India to penalize any IPR holder who try to misuse there dominant position. The provisions in the act also empower the competition commission to penalize any party who enter into anti-competitive agreement. The Intellectual Property Rights (IPRs) provide exclusive rights to the holders to perform a productive or commercial activity4, Hence in a way
1 See. http://www.competitionlawindia.com/scope-of-competition-law 2 V J Taraporrevala, Law of Intellectual Property, second edition (2013) 3 The Competition Act 2002 as amended by The Competition (Amendment) Act, 2007 4Competition Comission of India, Advocacy Booklet, IPR (under The Competition Act 2002) International Journal of Socio-Legal Research 83 Volume 1 | Issue 1 | ISSN- 2393-8250
Intellectual property rights lessens competition. Hence the major concern of the competition law and policy in the view of IPRs is the power to grant such rights. As per a research5 ―the market power can harm consumers by setting prices higher than those needed to secure cost effective production.
INTERFACE BETWEEN IPR AND COMPETITION LAW The foundation of Indian Competition Law can be traced back to Articles 38 and 39 of the Constitution which lay down the duty of the State to promote the welfare of the people by securing and protecting a social order in which social, political and economic justice is prevalent and its further duty to distribute the ownership and control of material resources of the community in a way so as to best sub-serve the common good, in addition to ensuring that the economic system does not result in the concentration of wealth. It is from these duties that the MRTP Act, 1969, came about.6Following the Singapore Ministerial Declaration of the WTO in 1996, the Expert Group, in its report submitted to the Ministry of Commerce in January 1999 recommended that a fresh competition law be drawn up. In October 1999, the government appointed a High Level Committee on Competition Policy and Competition Law to draft the new competition law, which was submitted in November 20007. Hence the Competition Act 2002 was formed to safeguard public welfare and to restrict anti-competition trade practice. Given the strong link between the two, IPRs and competition laws have a substantial interface in their regulation of various issues of the business world.
5 Sachin Kumar Bhimrajka, Study on relationship of competition policy and law and Intellectual property rights, ( August 18, 2010) 6 The Institute of Chartered Accountants of India, Competition Laws and Policies (2004), at 117-118 7 Id, at 128-129. International Journal of Socio-Legal Research 84 Volume 1 | Issue 1 | ISSN- 2393-8250
IPR STANDARDS AS COMPETITION REGULATION IPRs policy acts as an institutional regulatory framework for the proper operation of markets for intangible subject matter, and is therefore exempt from antitrust control. Competition laws of most countries, therefore, expressly or implicitly exempt from their application the exclusive rights inherent in IP protection granted by the state. For instance, Section 1 of Article 81 (ex Article 85) of the Treaty of Rome prohibits all agreements which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market. The Monopolies and Restrictive Trade Practices (MRTP) Act of India exempted from its purview of application .any monopolistic or restrictive trade practice necessary to safeguard the rights of patentees under the Indian patents act with regard to certain infringements and conditions that may be laid down in the licence(s)8.
REGULATION OF IPR THROUGH COMPETITION LAW Competition law, thus, while having no impact on the very existence of IPRs, operates to contain the exercise of the property rights within the proper bounds and limits which are inherent in the exclusivity conferred by the ownership of intellectual assets. As a piece of individual property, ‗‗IPRs are fully subject to general antitrust principles because what is conferred upon its owner is precisely that autonomy of decision in competition and freedom of contracting according to individual preferences that results from any private property, no matter tangible or intangible, and that is the object of and connecting factor for restraints of competition‘‘9. Hence the competition law does not interfere with IPR unless, the owner of
8 Section 15 (a & b) MRTP Act 1969 9 Supra note 1, p.374 International Journal of Socio-Legal Research 85 Volume 1 | Issue 1 | ISSN- 2393-8250
the IPR tries to influence the market with its dominance and affect the competition.
REGULATION OF IPRs RELATED COMPETITION ISSUES
IPRS AND ABUSE OF A DOMINANT POSITION In the free society, government takes out things effectively by keeping the peace, protecting private property and enforcing contracts. Abuse of dominant position is known to be the extreme case in capitalism because the system lack in its functional power and working when there is only or almost one provider of a good or service. This makes system paralyzed as there is no initiative to improve and to meet the demands of the consumers. Dominance comes in power because of two factors, which are, successful organic growth (internal) of a business and through mergers and acquisitions (also called as the integration of the firms)10. Horizontal Integration: - This kind of integration takes place when two firms join at the same stage of production in one industry. For example: a leading bank successfully takes-over another bank or a manufacturing company may decide to merge. In this, the integration takes place horizontally only. Vertical Integration: - this kind of integration is when a firm integrates or merges at different stages of production cording to the necessity like by buying its supplier or controlling the main retail outlets. The vertical integration occurs in two manners, that are, forwardly and backwardly.
10 William Jackson, How does a company form a Monopoly, (July 27, 2014, 12:00 AM) http://www.ehow.com/how-does_4580212_company-form-monopoly.html International Journal of Socio-Legal Research 86 Volume 1 | Issue 1 | ISSN- 2393-8250
CHART 1 shows the diagrammatic representation of the number and Percentage of Manufacturing Industries in which largest four companies accounted for at least 50 percent of Shipment value in their Industries, from 1947-2007.11
The above mentioned data gives the graphical representation about the state of monopoly and competition in the today‘s economic era and the prevalent trends in the mid-twentieth century. Chart1 describes that both the number and percentage of Manufacturing Industries that have a four-firm concentration ratio of 50 percent or more have risen dramatically since the 1980s. It is depicted that the majority of industries in the Manufacturing sector of the economy are tight monopolistic or quasi monopolistic markets as characterized by a substantial degree of monopoly.
11 ―Shipments Share of 4, 8, 20, & 50 Largest Companies in each SIC: 1992–1947,‖ Census of Manufactures; and ―Economic Census,‖ 1997, 2002, and 2007, American Fact Finder (U.S. Census Bureau, 2011),John Bellamy Foster, Robert W. Machesney and R. Jamal Janna, Monopolies and competition in twenty first century: Captialism (July 28th, 2014, 8;00 PM) http://monthlyreview.org/2011/04/01/monopoly-and-competition-in-twenty-first- century-capitalism/
International Journal of Socio-Legal Research 87 Volume 1 | Issue 1 | ISSN- 2393-8250
IPRs, by their very nature, create a form of monopoly or, in other words, a degree of economic exclusivity. Even in case it does confer market power that dominant position in the market does not by itself constitute an infringement of competition law nor does it impose on the IPR holders the obligation to license that property to others. Besides, competition authorities are normally concerned with the abuse of the dominant position, whatever the source of such dominance, rather than with any abuse of IPRs. Much also depends on the facts of each case involved.
REFUSAL TO DEAL A widely accepted premise of IP laws is that IP holders are under no obligation to license subject matters protected to others. This principle is generally held to be true even when a firm is in possession of a monopolistic position in a market as a result of its ownership of IP. An early non-antitrust decision by the US Supreme Court stated that the ability to exclude competitors from the use of a new patent may be said to have been of the very essence of the rights conferred by the patent, as it is the privilege of any owner of property to use or not to use without question of motive12.On the other hand, from the perspective of IPR/competition law interface, there may pose the question of whether such duty exists. Courts in the EU and the US have at times held that refusals to license a patent violate competition law. However both the jurisdiction, considered to be among the most advanced jurisdiction as per IP and competition law has not provided clear instructions as to whether a refusal to deal is anticompetitive where it involves IP. Slightly different was the case of Brazil, where Article 21 of the Antitrust Law enlists the non-exploitation or the inadequate use of IPRs and technology of a company as a strong indication that the free competition
12 Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 429 (1908) International Journal of Socio-Legal Research 88 Volume 1 | Issue 1 | ISSN- 2393-8250
rules have been violated13. While the non-fraudulent acquisition of patent rights through government grant does not violate the antitrust laws nor is it inherently illegal for a single party to accumulate patents and absent fraud or bad faith, antitrust jurisdiction does hold that when a party aggressively engages in activities that are self centered and are done by enforcement of IPRs to influence the essential inputs in a particular market for the purpose of destroying competition in that market, it can be considered as anti- competition and antitrust liability. Thus, a duty to license this portfolio of rights might be imposed as a remedy to cure the violation.
COMPULSORY LICENSING A compulsory license is an involuntary contract between a willing buyer and an unwilling seller imposed and enforced by the state. A survey of international IP law reveals that the three most prevalent compulsory licensing provisions are applicable where a dependent patent is being blocked; where a patent is not being worked; or where an invention relates to food or medicine. Moreover it can be implemented as a remedy in antitrust or misuse situations, where the invention is essential to nation‘s security or where the entity acquiring the compulsory license is the sovereign14. In these cases, the public interest in broader access to the patented invention is considered more important than the private interest of the right holder to fully exploit his exclusive rights. The designated third party should generally compensate the patent holder through payment of remuneration. The right to act against non-licensed parties by the patent holder is not denied by compulsory licenses. Compulsory licensing can be granted on the grounds of the existence of: (i) a refusal to license and (ii)
13 See supra note 22 14 Arnold G.J (1993), International Compulsory Licensing: The Rationales and The Reality, PTC Research Foundation of the Franklin Pierce Law Center, IDEA: The Journal of Law and Technology International Journal of Socio-Legal Research 89 Volume 1 | Issue 1 | ISSN- 2393-8250
anti-competitive exercises of IPRs by patent holders, but with regard to the IPR/competition interface Refusal to deal as a ground for granting a compulsory license has been provided in many national laws, such as the patent laws of Israel, Argentina and China. As regards anti-competitive practices, the Competition Act of Canada, for example, gives the Federal Court power to expunge trademarks, to license patents (including setting all terms and conditions), to void existing licenses and generally to abridge or nullify normal patent or trademark rights where the trademarks or patents have been used to injure trade or commerce unduly or to prevent or lessen competition unduly15 Intergraph Corp. vs. Intel Corp., 253 F.3d 695 (Fed. Cir. 2001)16
ECONOMIC JUSTIFICATION OF IPRs AND COMPETITION Intellectual Property Rights play an important role in economic life in this age of technological innovation. IPRs grants monopoly to the IPR holder as shown above but it is no way absolute and it is limited in time; it is also subject to competition with similar products, similar trademarks, etc. Intellectual property rights do not give their owners an automatic profit: they are directly oriented towards demand. The competitive structure of the market concerned determines the reward given for the innovative activity. The owner will make a profit only when the market accepts his innovation. Intellectual property rights confer exclusive rights, but they hardly ever confer a real monopoly, in the sense that the monopolist can act arbitrary way without being influenced by his or her competitors.. If it is known that, the one will have a property right in the results of one‘s investment will stimulate individuals and enterprises to invest in the research and development. It is assumed that the creator and inventor will have been motivated by the desire to maximize profits-either by exploiting the
15 Section 32 of The Canadian Competition Act, RSC 1985, c C-34, as amended 16 Encaoua & Hollander, Competition policy and Innovation, 2002 International Journal of Socio-Legal Research 90 Volume 1 | Issue 1 | ISSN- 2393-8250
invention or creation him or herself, or by having it exploited by a third party-so the creator inventor is granted the rights17.
CONCLUSION
This working paper is a first step in attempts to enhance understanding of the interface between competition law and IPRs protection rules as well as some relevant issues on the subject matter. IP and Competition laws share the same economic rationale. They are both crucial for the establishment of competitive and innovative market conditions. The common objective of both policies is to promote innovation which would eventually lead to the economic development of a country however this should not be to the detriment of the common public. The competition authorities need to ensure the co-existence of competition policy and IP laws since a balance between both laws would result in an economic as well as consumer welfare. It should be kept in mind that the only conflict arising between IPRs and competition laws as stated in the above discussions arises due to the monopolistic effect of the IPRs. We should not forget that IPRs provide short term monopolies, which implies that it provides incentives for the innovator and also allows them to apply its industrial application. After the allotted time span, the monopoly on the hand of innovator expires and it comes to public domain. The intellectual property laws provide motivation for innovation and its dissemination and commercialization by establishing enforceable property rights for the creators of new and useful products, more efficient processes, and original works of expression. In the absence of intellectual property rights, imitators could more rapidly exploit the efforts of innovators and investors without compensation. It can be concluded that both IPRs and Competition law goes hand in hand. As certain privileges are
17 S. Holyyoak & Torremans, Intellectual Property Law, 2008 (Oxford University Press) at 231. International Journal of Socio-Legal Research 91 Volume 1 | Issue 1 | ISSN- 2393-8250
being given under the IPRs it is restricted by the enforcement of Competition laws. As rightly said in Indian laws, nothing (right) is absolute: every right comes with restriction, limitations and liabilities. International Journal of Socio-Legal Research 92 Volume 1 | Issue 1 | ISSN- 2393-8250
LIBERTY OF THE PRESS vis-à-vis PRE-CENSORSHIP OF PUBLICATION Shweta Mallya* Rahul Dev** Introduction
Liberty of the press envisages the freedom of speech and expression guaranteed to every citizen as per Article 19(1)(a) of the Constitution of India and forms the foundation for a democratic set up. The rights enumerated in Article 19(i) are those elementary rights which are recognised as the natural rights inherent in the status of a citizen.1 Therefore, these rights safeguard certain unrepressed freedom to the press with regard to the publication of information in the form of print media or electronic media. However, none of these rights are absolute or uncontrolled, as they are liable to curtailment by laws made or to be made by the State. Freedom of speech and expression has a well-recognised connotation which means the liberty to express one‘s views, opinions and beliefs. It does not mean the right to say whatever, whenever and wherever one likes. Freedom of the press is said to form the bulwark of a healthy, progressive and democratic society. It leads to the creation of new ideas and knowledge, finding of truth, building tolerance and receptivity and is essential for self-rule.2
Historical Perspective of Liberty of the Press
The Universal Declaration of Human Rights states that every man has the right to freedom of expression which includes the freedom to hold
*3rd year, BBA LLB (Hons.), School of Law, Christ University. *3rd year, BBA LLB (Hons.), School of Law, Christ University. 1 State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92,95: 1954 SCR 587. 2 A. Meiklejohn, Political Freedom (1965). International Journal of Socio-Legal Research 93 Volume 1 | Issue 1 | ISSN- 2393-8250
opinions and impart information and ideas through any media without interference. Lord Mansfield, as early as 1784, had defined the ―liberty of the press‖ as consisting in ―printing without previous license, subject to the consequences of law‖3 and it is in this sense that that the freedom has existed in England since the 17th century. Earlier there was no statutory provision protecting the rights of the press, before India attained independence. However, after the enactment of the constitution of India, the liberty of the press is protected under Article 19(1)(a) as it is implied under the freedom of speech and expression guaranteed to every citizen of India. Unlike the US Constitution, the fundamental right enshrined in Article 19(1)(a) does not expressly mention the liberty of the press, i.e., the freedom to print and publish what one pleases without prior permission. However, it is settled law that the right to freedom of speech and expression in Article(1)(a) includes the liberty of press.4
Freedom of the Press within the ambit of the Indian Constitution
Article 19(1)(a) secures to every citizen the right to freedom of speech and expression. A democratic government attaches great importance to this freedom because without this freedom, appeal to reason, which is the basis of democracy, cannot be secured. In Romesh Thappar v. State of Madras5, Patanjali Sastri CJ observed ―Freedom of speech and of the press lay at the foundation of all democratic organisations, for without free political discussion no public education, so essential for the proper functioning of the process of popular Government is possible. A freedom of such amplitude might involve risks of abuse.‖
Although the provision for the right to freedom of speech and expression in our Constitution and the one contained United States‘ Constitution appear
3 R v. Dean of the State Asaph, (1784) 3 T.R. 428. 4 Express Newspapers (P) Ltd. v. Union of India, A.I.R. 1958 S.C. 578. 5 A.I.R. 1950 S.C. 124 International Journal of Socio-Legal Research 94 Volume 1 | Issue 1 | ISSN- 2393-8250
to have been legislated on similar lines, there exist stark differences between the two constitutions. The right envisaged in the United States‘ Constitution is an absolute right, in the sense that the State is permitted to impose very minimal restrictions on the right as a consequence of the absolute prohibition contained in its First Amendment. Under the Indian Constitutional scheme however, Article 19(2) provides for several grounds on which restrictions may be imposed on the exercise of the right. A law made in respect of matters referred under Article 19(2) must prima facie be presumed to be constitutionally valid and due weight must be given to the legislative judgment on the question of reasonableness, though that judgment is subject to judicial review.6 This distinction is important in determining the extent of valid State intervention in the exercise e of the right in India.
The freedom of speech and expression implies the liberty of the press stands at no higher footing than the freedom of speech and expression of a citizen and no privilege is attacghed to the press as such distinct from the ordinary citizen. Therefore, in Express Newspapers (P) Ltd. v. Union of India7, it was held that the press is also subject to the general law of the land and is liable to taxation. But whether a tax violates freedom of speech and expression can be judicially examined.8
Liberty of the press embraces the freedom of circulation as the freedom of speech and expression includes the freedom of propagation of ideas and is ensured by the freedom of circulation. In Romesh Thappar v. State of Mysore9, the notification banning the entry, circulation, sale or distribution in the State of Madras and Bombay, in the newspaper titled ―Crossroads‖
6 SEERVAI H. M., CONSTITUTIONAL LAW OF INDIA 710, (Universal Law Publishing Co. Pvt. Ltd., Vol. 1, 4th ed., 2014). 7 A.I.R. 1958 S.C. 578. 8 Indian Express Newspapers v. Union of India, (1985) 1 S.C.C. 641. 9 A.I.R. 1950 S.C. 124. International Journal of Socio-Legal Research 95 Volume 1 | Issue 1 | ISSN- 2393-8250
published at Bombay, was held invalid, because, without the liberty of circulation, the publication would be of little value. The liberty of the press includes the freedom of employment or non-employment of the necessary means of exercising this right, such as freedom of employment in the editorial force of a newspaper and also freedom from a measure intended or calculated to undermine the independence of the press by driving it to seek government aid.10
In Bennett Coleman & Co. v. Union of India11, it was held that the freedom of speech and expression is not restricted to the volume of circulation but also in the volume of news and views. The press has the right of free propagation and free circulation without any previous restraint. In this case, the Import Policy for Newsprint along with the Newsprint Control Order, 1962 issued under Section 3 of the Essential Commodities Act, 1955, which provided for a bar on starting newspapers or editions by common ownership unit, bar on the interchangeability within common ownership unit, a rigid limitation of ten pages and an allowance of 20 per cent page increase only to newspapers having below ten pages, was challenged. The court held this to be violative of Article 19(1)(a) and thereby struck it down. It was held that the provisions of this Act were directly in conflict with the freedom of press which did not fall under any of the exceptions mentioned in Article 19(2). If a law were to single out the press for laying down prohibitive burdens on it then it would restrict the circulation, penalise its freedom of choice as to personnel, and compel the press to seek Government aid then it would violate Article 19(1)(a).
The liberty of the press is deemed to be infringed by an action of the government which would adversely affect the circulation of the paper, or by a direct ban on the circulation of a publication. In Sakal Papers (P) Ltd. v.
10 Express Newspapers (P) Ltd. v. Union of India, A.I.R. 1958 S.C. 578. 11 A.I.R. 1973 S.C. 106. International Journal of Socio-Legal Research 96 Volume 1 | Issue 1 | ISSN- 2393-8250
Union of India, the Daily Newspapers Order, 1960, which fixed the number of pages and size which a newspaper could publish at a price was challenged on the ground that it infringed the liberty of the press implicit in Article 19(1)(a). The adoption of the order would signify the reduction in the existing number of pages or raising the price and therefore affects the liberty of the press. Reduction in the volume or circulation of the paper is a direct violation of the liberty of the press. The State justified the law as a reasonable restriction on the business activity of a newspaper in the interests of the general public. The court, however, upheld the plea of the petitioners that the order affected the circulation and so restrained the dissemination of news and views which a newspaper had the freedom to do. The order was therefore held to be inoperative and was struck down. It was further held that ―The right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of a citizen.‖
Reasonable Restrictions on the Liberty of the Press
Liberty of the press is restricted as the freedom of speech and expression does not confer an absolute right to speak or publish without responsibility. The press does not have an unrestricted license that gives immunity for every possible use of language and does not prevent punishments for those who abuse this freedom. The press may therefore be made accountable subject to certain reasonable restrictions. Article 19(2) of the Constitution of India provides for the imposition of reasonable restrictions of the exercise of the right to freedom of speech and expression by citizens. The clause empowers the State to impose by law, reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement of an offence.12 The term
12 The Constitution of India, 1950, § 19 (2). International Journal of Socio-Legal Research 97 Volume 1 | Issue 1 | ISSN- 2393-8250
―restrictions‖ in this clause which was originally unqualified, was amended so as to be qualified by the term ―reasonable‖ by the Constitution (1st Amendment) Act 1951. This qualification is of great significance since it imposes a limitation on the State‘s power and widens the scope of judicial review of laws restraining freedoms under Article 19. The determination by the legislature of what constitutes a reasonable restriction is not final or conclusive. It is subject to the supervision of courts.13
The Constitution does not define the expression ―reasonable restrictions‖. It is imperative to clarify the meaning of the term ―restrictions‖. A question that arises for consideration is whether the connotation of the term is wide enough to cover a ―prohibition‖ of the right. The question was answered in the affirmative in Narendra Kumar v. Union of India14 Although in A. K. Gopalan v. State of Madras15, it was settled by the Supreme Court that ―restriction‖ did not mean ―deprivation‖, Das Gupta J. reviewing the matter, held that the construction laid down in Gopalan‟s case did not extend to other Articles. He added that prohibition was to be treated only as a kind of restriction and any other view would defeat the intention of the Constitution.
Restrictions may be imposed on different rights guaranteed under Article 19(1) on a common ground. For instance, restrictions may be imposed ―in the interest of public order‖ on the rights contained in Article 19(1) (a), (b) and (c). However the reasonableness of the restriction must be adjudicated upon, not with reference to the ground on which it is imposed, but with reference to the fundamental right which is restricted. A decision that deals with the validity of restriction imposed on one of the rights conferred by
13Anwar v. State of J&K, (1971) 3 S.C.C. 104. 14 (1960) 2 S.C.R. 375. 15 (1950) S.C.R. 88. International Journal of Socio-Legal Research 98 Volume 1 | Issue 1 | ISSN- 2393-8250
Article 19(1) cannot have much value as a precedent in determining the reasonableness of restrictions imposed on another right.16
Consequently, although the constitutional criterion for adjudging the validity of a restriction might be the same, namely, reasonableness, the restrictions on each right must be considered separately. The factors which should enter the judicial verdict are the underlying purpose of the restrictions imposed, the proportion of imposition, the prevailing conditions at the time, and the duration of the restrictions.17
The first ground restricting the liberty of the press i.e., sovereignty and integrity of India was added by the Constitution (16th Amendment) Act, 1963 as a safeguard against the freedom of speech and expression being used to assail the territorial integrity and sovereignty of the Union. It is therefore reasonable for the Parliament to restrict the right of free speech if such speeches are concerned with secession of any part of the territory of India from the Union. The next restriction imposed on the liberty of the press is with regard to the security of the state. All publications threatening the security of the state with direct consequences such as crimes of violence intended to overthrow the government, waging of war, etc. In State of Bihar v. Shailabala Devi18, the Supreme Court held that the law which made penal words or visible representations which incited or encouraged any offence of murder or any cognizable offence involving violence, falls within the scope of the restrictions imposed by Article 19(2).
The liberty of the press is also restricted in cases where certain print media or electronic media inhibits the maintenance of friendly relations with foreign nations. This ground was added by the Constitution (1st
16 Madras v. V. G. Row, (1952) S.C.R. 597. 17 Bishambar Dayal Chandra Mohan v. State of U.P., (1982) 1 S.C.C. 39; Ram Narayan Agarwal v. State of U.P. (1983) 4 S.C.C. 276; Indian Express Newspapers v. Union of India, (1985) 1 S.C.C. 641 18 A.I.R. 1952 S.C. 329. International Journal of Socio-Legal Research 99 Volume 1 | Issue 1 | ISSN- 2393-8250
Amendment) Act 1951 which permitted the State to impose reasonable restrictions on the freedom of speech in this regard as unrestricted propaganda against a friendly foreign State may jeopardise the maintenance of good relations between India and that State. The preservation of public order is also a ground for restricting the liberty of the press, however the existence proximate nexus between the speech or publication and public order is necessary. The Supreme Court took a stance in this regard, in Virendra v. State of Punjab19, where a provision relating to ban on publication of news was upheld in the time of tension in order to preserve public order which was threatened by the ―Save Hindi Agitation‖ as being a reasonable restriction of the liberty of the press.
Decency is another ground on which the liberty of the press may be reasonable restricted if the contents of the print or electronic media is obscene or immoral. The Supreme Court was called upon to lay down a test to determine obscenity in Ranjit D. Udeshi v. State of Maharashtra20. The court agreed with the Hicklin Test which states: ―Whether the tendency of the matter charged is obscene is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.‖21 However, an exception can be made to this rule only if some social purpose or profit is served by the obscene object.
Contempt of court, defamation and incitement of an offence are other grounds on which the liberty of the press may be reasonable restrained. Although the right to expression of free opinions is essential to a free society, the power to punish for contempt of court under Articles 129 and 215 imposes restrictions on the liberty of the press in this regard. Defamatory matter if in writing, printing or some other permanent medium
19 A.I.R. 1957 S.C. 896. 20 Chandrakant Kalyandas Kakodkar v. State of Maharashra, (1969) 2 S.C.C. 687. 21 R v. Hicklin, (1868) 3 Q.B. 360, 371. International Journal of Socio-Legal Research 100 Volume 1 | Issue 1 | ISSN- 2393-8250
is a libel and thereby violates the rights of others. Therefore, the liberty of the press does not entitle one to abrogate the rights of others and is restricted in this regard. Incitement to an offence was added as a ground restricting the freedom of speech and expression in the year 1951 as the incitement to crimes such as murder endangers the security of the State.
Pre-censorship of Free Speech and Expression
An important question that arises for consideration in the exercise of the right to free speech and expression is, whether pre-censorship of the content of certain media is a reasonable restriction of the right. The State has pre- censored mass communication through electronic means such as a cinematograph film in the past. The reasonableness of the restriction of such pre-censorship was called into question in K. A. Abbas v. Union of India22. In that case, a film ―A Tale of Four Cities‖ was produced by the petitioner. The film contained scenes from the red light district in Bombay. The Board of Film Censors refused to grant the film a ―U‖ certification. The petitioner challenged this decision of the Board. However the central government decided to grant a ―U‖ certification to the film, provided certain cuts were made to the film. The petition was therefore not to survive. The petitioner was permitted to make an amendment to the petition. He raised the question of validity of pre-censorship in general so that parties interested in the film have guidance on an important constitutional question.
It was contended by the petitioner that pre-censorship cannot be tolerated under the freedom of speech and expression. However the petitioner‘s own support of censorship in his article titled ―Creative Expression‖ did not aid his cause. The Court affirmed the validity of pre-censorship as a reasonable restriction imposed on the right to free speech and expression. It held that pre-censorship was only an aspect of censorship, and censorship of
22 (1971) 2 S.C.R 574. International Journal of Socio-Legal Research 101 Volume 1 | Issue 1 | ISSN- 2393-8250
cinematograph films was universal. In holding so, it took cognizance of the fact that motion pictures had an instant appeal to both, sight and hearing. Owing to the aforementioned observation, the classification of films into ―A‖ (for adults only) and ―U‖ (for universal exhibition) provided for by the Cinematograph Act 1952, was held to be a reasonable.
On examining the grounds for censorship, the Court was of the opinion that one ground for the imposition of a reasonable restriction may include making factually false claims. The idea of discovery of the truth being the goal of free speech is implied from the above ground. This argument however may easily be assailed since different views are allowed to be expressed not because the views are correct or valid but because, all citizens have the freedom to do so under the constitutional scheme of our nation.23 The aforementioned view was rightly not made the basis of the decision. The basis was the high regard given to moral values by the Court. It said that morality should not be sacrificed in the guise of social change or cultural assimilation.
The basis of the decision may be questioned on the ground that morality is an abstract indefinable concept which is varied and subjective. The question however does not proceed far enough to altogether assail the findings of the Supreme Court. The reason being, the Court pointed out that motion pictures tend have a far reaching influence on the actions of people. Thus if the exercise of the right through this means is not restricted motion pictures may be used to change socially accepted values. The view taken by the Supreme Court in Ranjit D. Udeshi v. State of Maharashtra24, that obscenity and immoral behavior may be grounds for imposing reasonable restrictions on the freedom of speech, was reaffirmed.
23 Ibid. 24 (1965) 1 S.C.R. 65. International Journal of Socio-Legal Research 102 Volume 1 | Issue 1 | ISSN- 2393-8250
The importance of upholding the liberty of the press in a democratic set up is not to be undermined. This was emphasized by the Supreme Court in the case of S. Rangarajan v. Jagjivan Ram.25 After K. A. Abbas, it was settled that the Board of Film Censors had the power to refuse to grant a certificate, grant a ―U‖ certificate, an ―A‖ certificate or an outright refusal to say that a certificate would be granted if certain alterations or omissions were made. Thus the powers of the Board were wide. Rangarajan the producer of a film, ―Ore Oru Gramathile‖, applied to the Board for certification to exhibit the film. Since the Examination Committee unanimously refused to grant the film a certificate, he applied to the first Revising Committee, which reversed the decision. The chairman of the Board, dissatisfied with the decision referred the film to the second Revising Committee which granted a ―U‖ certification to the film.
The decision of the Board was challenged before the High Court which was dismissed by a single Judge. This dismissal having been overturned by a Division Bench of the High Court, the respondent moved the Supreme Court on appeal. The High Court was of the opinion that public reaction to the film which sought to change the system of reservation in Tamil Nadu was bound to be volatile and therefore a refusal of the certification would be reasonable. The Apex Court rightly discredited this reasoning laid down by the Madras High Court and held that the freedom of expression is the rule and everybody has the fundamental right to express his own opinion on any issue of general concern.26
There is no doubt that the right freedom of speech and expression cannot be unrestricted. It would be necessary to impose restrictions if expression endangered the interests of the community. However it is necessary to balance the freedom and the restrictions imposed. In the
25(1989) 2 S.C.C. 574. 26 Ibid. International Journal of Socio-Legal Research 103 Volume 1 | Issue 1 | ISSN- 2393-8250
aforementioned case, the producer was only expressing his views on the reservation policy followed by the State, only through a motion picture. It would be absurd to restrict a person from expressing such views on the ground that there exists a possibility of it causing public unrest. It is the duty of the State to protect the freedoms guaranteed to the citizens by the Constitution. The State cannot at any rate shy away from its duties towards its citizenry.
Conclusion
One of the most important pillars of a democratic structure is free speech and expression. However the unrestricted exercise of this freedom may at times interfere with the peaceful existence of the society. The justification of the State in imposing restrictions on this freedom is based on the need to balance individual rights and societal interests. It must be remembered that freedom of expression is the rule and restrictions are only exceptions which may be imposed on in rare circumstances. These circumstances must pose an inherent and immediate danger to the society and only then would the constriction of the right by the State be a valid one.
The liberty of the press forms an integral part of the freedom of speech and expression declared by Article 19(1)(a) of the Indian Constitution. The freedom of the press is not confined to newspapers and periodicals, but also includes pamphlets, leaflets, circulars and every sort of publication which affords a vehicle of information and opinion. It needs no emphasis that a free press, which is neither directed by the executive nor subjected to censorship, is a vital element in a free State. It may be therefore inferred that a free, regularly published, political press is essential in a modern democracy. International Journal of Socio-Legal Research 104 Volume 1 | Issue 1 | ISSN- 2393-8250
CONSUMER PROTECTION VIS-À-VIS SERVICE AND OTHER SECTORS
Ayush Jaiswal* V. Aneesha Varahagiri**
INTRODUCTION Consumer is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who ‗hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.1 The ambit of definition of consumer, given by the Consumer Protection Act is gigantic; In other words, ‗generalised‘; The reason being, providing and ensuring legal protection to maximum number of consumers. Studies show that the consumer plays the role of a game changer in an economy. It is the consumer, who can make the economy grow rapidly and vice-versa. India is
*3rd Year Student, Damodaram Sanjivayya National Law University, Visakhapatnam **3rd Year Student, Damodaram Sanjivayya National Law University, Visakhapatnam 1 The consumer protection Act, 1986, Section 2 (i) (d) International Journal of Socio-Legal Research 105 Volume 1 | Issue 1 | ISSN- 2393-8250
a country, where it is believed that principles of truth, dharma, transparency, honesty etc. shall prevail in everything. These principles were indeed in practice during the olden days. The Dharma Shastras, Vedas, Smritis governed human relations and to an extent played the role of ‗law of the land‘. Consumer protection has been a matter of concern since then. Manu, the ancient law giver, in Manu Smriti prescribed the punishment for traders, businessmen indulging in malpractices like adulteration, fraud etc.2 With the passage of time, the laws got amended to ensure proper implementation. During the British Rule, India underwent a complete makeover and a brand new legal system was introduced to administer justice. It is worth mentioning that the new legal system did not over-throw the old moral and value based Indian legal system, instead the morals, values and customs prevailing in the country were made legally enforceable by merging them to the newly introduced laws. The newly served laws to some extent ensured legal protection to the consumers. Main legislations that in a way are related with consumer protection, passed during the British rule are The Indian Contract Act, The Drugs and Cosmetics Act, The Agriculture Procedure (grading and marketing) Act, The Sales of goods, The Indian Penal Code, etc. The passage of these legislations was a part of those very first steps taken by the legislature to provide consumer protection within the codified, generalised laws. These laws in-fact served and are serving the intended purpose. As development is a continuous process, marching of law, in tune with the society is crucial. Following the same, even after the end of British rule, many laws have been rolled-in; this includes The Essential Commodities Act, The Prevention of Food Adulteration Act, The standard of Weighs and measures Act etc. A benefit of these acts is that a consumer need not prove mens rea. Rather, the
2 Dr. A. Rajendra Prasad ― Historical Evolution of Consumer Protection & Law in India‖ Journal of texas consumer law pg. 132 International Journal of Socio-Legal Research 106 Volume 1 | Issue 1 | ISSN- 2393-8250
offences are of strict liability.3 The most recent development in laws relating to consumer protection is the Ombudsman(s) Act(s). In India, service sectors like banking, education etc. have acquired a great importance. The prosperity of these sectors on one hand leads to development of the country, while on the other, the consumer is often exploited by the service providers. As these services have been set in motion very recently, the absence of laws, dealing exclusively with them worsens the condition. In this paper, the legal protection of consumer vis-à-vis service sectors shall be critically analysed.
Electricity and Consumer Protection Electricity has now become one of the basic necessities of life. A large number of houses as well as industries in the country run smoothly because of the presence of electricity. The Electricity Act, 2003 has given the distribution of electricity mainly in the hands of the state and central government, through the state electricity boards. Also, it mandates the state and central governments to frame a national policy permitting stand-alone systems for rural areas.4 Though the act has given the responsibility of providing electricity to all areas to the state and the central government,5 the provision sounds to be too hypothetical. In reality, hardly any effort, except installing solar panels in some of the villages is made by the government to promote and provide electricity connections to the villages. Moreover, the intent behind installing solar panels appears to be an effort to gain votes! The known fact of power back-up provided by solar panels as well as condition of solar panels in the villages like Borda (Madhya Pradesh) is evident.
3 D.N. Saraf, Law of Consumer Protection in India 169 (1990). 4 The Electricity Act, 2003, Section 4 5 Ibid, Section 6 International Journal of Socio-Legal Research 107 Volume 1 | Issue 1 | ISSN- 2393-8250
THE ELECTRICITY ACT, 2003
The Electricity Act, 2003 provides for the mechanism from generation to supply of electricity. It casts certain rights and duties on the consumers and the licensees for the proper distribution of electricity. One such duty on the licensee is to give supply of electricity to the owner or occupier of a premise, within a month after receiving written application.6 However, certain exceptions have also been made in case of a hamlet or village area, where no provision for supply of electricity exists. It is up to the discretion of licensee to take ‗reasonable‘ time for providing electricity to such area. The discretionary power so vested in the licensee gives sufficient chances of consumer exploitation. There are many unreported cases, where people have to wait for a much longer period than that of the prescribed, to get a new connection. They often have to pay additional amount to fasten the work, also are sometimes asked to procure goods like cables, poles, transformers etc. necessary to provide electricity connection; Moreover, the goods procured by consumer becomes the property of the electricity department! This practice though is not in the interest of consumer, but is legalised by the Section 46 of the Electricity Act. It can therefore be suggested to amend the section, as ―The State Commission may, by regulations, authorise a distribution licensee to charge from a person requiring a supply of electricity in pursuance of section 43 [up to 50% of ] any expenses reasonably incurred in providing any electric line or electrical plant used for the purpose of giving that supply. The rest 50% shall be subsidized by the government. Also, a definite period shall be fixed, within which the licensee shall provide connection; failure to do so would entitle the applicant to file complaint before ‗appropriate commission‘7 claiming compensation, which
6 Ibid. Section 43 (1) 7 ‗appropriate commission‘ as defined by Section 2 (4) of the Electricity Act, 2003 ("Appropriate Commission‖ means the Central Regulatory Commission referred to in sub- International Journal of Socio-Legal Research 108 Volume 1 | Issue 1 | ISSN- 2393-8250
should be paid by the licensee, if the licensee fails to present before the commission, all such evidences, which reasonably justify the delay so caused. Section 68 of the Electricity Act gives guidelines for installation of overhead electricity lines. Installation of overhead lines is possible only after approval of the appropriate government. Sub section 5 of section 68 of the said Act also enables the executive magistrate or any other officer appointed by the appropriate government to demolish/remove or do all such things, he deem fit to handle cases wherein the supply of electricity by the overhead line is disturbed/distracted or is likely to be disturbed by any object which has been placed subsequent to installation of such line. However, if a tree had been in existence before installing electricity lines, the person interested in the tree shall be compensated. The interesting question that arises here, which is also being experienced by a resident of the city Bhopal in Madhya Pradesh is, if the overhead line has been installed on someone‘s piece of land, without the knowledge/consent of the landowner, who subsequently erects a building, leaving the space where the overhead line is passing vacant, would this section entitle the executive magistrate to demolish the constructed area near the overhead line, which in-fact has been installed due to a fault that is not from owner‘s side? Also, when the owner requested the electricity board to shift the line, he by the virtue of Section 43 was asked to pay the cost of shifting. Inspite of paying compensation to the aggrieved land-owner, he is being asked to bear the cost of shifting! It is clearly exploitation of the consumer by state. Someone, who is interested (though not an ‗owner‘) in a tree is legally entitled to compensation, but not the one, who actually owns the premises! Therefore, provisions shall be made to deal with such issues. Apart from this, the act also lays down provisions relating to establishment of commissions vested section (1) of section 76 or the State Regulatory Commission referred to in section 82 or the Joint Commission referred to in section 83, as the case may be ;) International Journal of Socio-Legal Research 109 Volume 1 | Issue 1 | ISSN- 2393-8250
with powers of civil court, which deal with complaints related to electricity.8 The proceedings before the appropriate commission are made to be of judicial nature.9 Any person aggrieved by the decision of the appropriate commission or adjudicating officer may file appeal before the appellate tribunal, established by the central government, 10 within 45 days of such order, however, the tribunal may, if it has a reason to believe that the appeal could not be filed due to a reasonable reason, allow appeals filed after expiry of the period of 45 days.11 The appellate tribunal is bound to dispose- off the complaints filed before it, as expeditiously as possible, and if it takes more than 180 days to settle a complaint, it shall record in writing the reasons for such delay.12 Provision has also been made for appeal to the Supreme Court against order of the appellate tribunal within 60 days of passing of such order, subject to extension of a further period of 60 days in exceptional cases by the Supreme Court.13 It is worth noticing that the jurisdiction of consumer courts in cases relating to electricity was not clear until the judgment of Supreme Court. It had been held by the Punjab and Haryana high court that consumer courts do not have the jurisdiction to hear electricity theft cases.14 Also, the Gujarat high court has held that consumer courts cannot entertain complaints related to electricity supply.15 Supreme Court has said that the consumer courts cannot entertain complaints under the Electricity Act, 2003.16
8 Supra Note 6, Section 94 9 Ibid. Section 95 10 Ibid. Section 110 11 Ibid. Section 111 (2) 12 Ibid. Section 111 (5) 13 Ibid. Section 125 14 http://zeenews.india.com/news/punjab/hc-stays-power-theft-case-hearing-in-consumer- court_853926.html (Visited on 09-03-2014 at 10:37 A.M.) 15 Deputy v Jagrut (http://indiankanoon.org/doc/58567/) (Visited on 09-03-2014 at 10:49 a.m.) 16 M.J. Antony ― Dispute over power bills out of consumer court‘s purview‖ Business Standard, New Delhi, July 14, 2013 International Journal of Socio-Legal Research 110 Volume 1 | Issue 1 | ISSN- 2393-8250
So as to ensure speedy and timely justice for the consumers, several state governments have established electricity ombudsman as well. The primary objective of these institutes is to safeguard consumer interests. In some of the states, ombudsman do not directly accept complaints from public, rather they are appellate authorities;17 for example, the Kerala Electricity Ombudsman. Another benefit of filing appeals before ombudsman is, the parties do not need legal representation. The party itself can appear before the ombudsman. Also, there is a defined period within which an ombudsman has to dispose ofF a complaint.18 Though some steps have been taken to safeguard consumer interest, there is still a long way to go! There are many flaws in the laws that need to be corrected to make them practically implementable in the present day scenario. Consumer Protection & Education ―The educated differ from the uneducated as much as the living differ from the dead‖ -Aristotle Life- the very essence of this planet, the sole reason for existence and the one word that rules this universe, is only known to us because we learned it! So as in order to infuse life to his child, Mr. Unnikrishnan, an Andhra Pradesh domiciled, financially struggling father filed a case in the Andhra Pradesh High Court challenging the cancellation of admission of his child from the school as he had no money to pay the fees. Mr. Unnikrishnan claimed that the ambit of article 21 of our constitution includes the right to education for children.19 The court held the same. Following the case, the legislature on August 4th 2009 passed the Right to Education Act, providing free and compulsory education to tots aged between 6-14 years. The act
17 http://www.kseboa.org/kseb/electricity-ombudsman-and-consumer-grievance-redressal- forums-2811395.html (Visited on 09-03-2014 at 15:55) 18 Ibid. 19 1993 SCC (1) 645 International Journal of Socio-Legal Research 111 Volume 1 | Issue 1 | ISSN- 2393-8250
was added to article 21(a) of our constitution and was enacted from April 1st 2010. 20 With this, India became one of the 135 countries to make education, a fundamental right.21 Apart from the elementary education, India has opened new horizons for education in almost every field. Institutes like IITs, IIMs, and NLUs have been established for imparting quality education. These institutes to a great extent have been able to achieve the intended goal. With the establishment of these elite institutes, other alma- maters as well have started giving a cut-throat competition, by improving the quality of education they used to provide. As we know, a coin has two sides; the same is the case with these institutes as well. One side of educational institutes is bright but the other side is equally darker. Affording higher as well as elementary education of a child is a tough row to hoe! Though these institutes are in a way helping the country to prosper, but the benefit of the advanced education system cannot be reached to the economically weaker sections. The fee charged by the quality education providers is so high, that an economically weak person could not even think of affording it. Also, if a person decides to take admission in a university and pays the fee, but afterwards decides to withdraw, he would not recover his money22 unless the court orders for the same. Brochures claiming job guarantee and other such malpractices of advertisements are also rampant in the society. In same was held by a foreign court in the case of State v Jost23, where the brochure of the institute depicted unbelievable scenic attractions to enhance one‘s education. However, in reality there was no such thing. The court held the school liable for false advertising. Another case of consumer exploitation by the educational institute is, where a person enrolled for a two year course and an assurance from the schools side that
20 "Provisions of the Constitution of India having a bearing on Education". Department of Higher Education 21 "India joins list of 135 countries in making education a right". The Hindu News. 2 April 2010 22 Drucker v New York University (57 Misc. 2d 937) 23 127 vt. 120 International Journal of Socio-Legal Research 112 Volume 1 | Issue 1 | ISSN- 2393-8250
she would be qualified to teach mentally retarded children, but found exactly the opposite on completion of the course.24 It is worth noticing that even the ‗producers‘ of lawyers are an exception to these practices. In the case of Donnie Ashok v Gujarat National Law University25 the plaintiff was denied admission in the said university on the grounds that he repeated his HSC examinations. However such rule was neither mentioned in the brochure nor in the Act of state legislature by which the said university was established. The Gujarat High Court held that the plaintiff is entitled to admission. These malpractices are not only confined to higher education, but also to elementary education. In a legal awareness camp „Abhyeti‟ organised by the Damodaram Sanjivayya National Law University, Visakhapatnam, a number of cases were reported, wherein complaints like collecting ‗fees‘ in one or the other form by government schools were put forward, also there were issues, where the food for the mid-day meal scheme is either ‗stolen‘ or is not prepared26 Apart from this, cases are prevalent where, the State education board charges money for re-totaling of answer sheets of higher secondary examinations, and the applicant is sent ‗no-change in marks‘ letter, however, after filing RTI and getting a copy of the answer sheet, the mistake in calculation of marks can be spotted.27 The most crucial question to be addressed is how to overcome these problems? The countries like Washington have introduced the ‗education ombudsman‘. The ombudsman works at the ground level and help parents resolve disagreements with schools about Education services quickly and at the lowest level possible. The Ombudsman does this by: acting as a neutral facilitator for problem solving; helping parents and educators better understand education processes and regulations so that a child‘s services are
24 Ojalvo v Ohio State University (No.-0602 (Ohio. Ct. cl. 1976)) 25http://barandbench.com/content/donnie-v-gnlu-case-amicably-settled-gnlu-director- grants-admission-donnie#.UxxfdPmSw9Y (Visited on 09-03-2014 at 18:03) 26 Damodaram Sanjivayya National Law University, Abhyeti Report pg.127 27 Anand Panwar ‗Retotaling ke naam par chaatron se vasooli‘, DB Star, Dainik Bhaskar, Bhopal 25th October 2011 International Journal of Socio-Legal Research 113 Volume 1 | Issue 1 | ISSN- 2393-8250
ensured and are appropriate.28 It also helps students with special needs to receive services and supports, to enable them to benefit from public education, as guaranteed under central and/or state laws.29 The same concept can be adopted for the Indian education system as well. Wherein, all the higher education affiliated to UGC, AICTE and NCTE are to establish ombudsman to address issues relating to all matters connected to education.30 This in-fact has been announced by the government recently. It is suggested that apart from the higher education institutes, ombudsman shall also be set-up at district level for schools which shall have exclusive jurisdiction of all matters relating to education. Appellate tribunals shall also b set-up on state level to hear appeals from district educational ombudsman and higher education institute‘s ombudsman. No other court except the appellate tribunals shall have jurisdiction of these cases. This would ensure a speedy trial and also lessen the burden of District courts and High Courts. A provision should also be made for appeal against judgment of appellate tribunal to the Supreme Court, whose decision shall be final and binding. By introducing the above suggested reforms the Indian education system can be brought on track to a great extent.
Consumer Protection and Banking According to the Consumer Protection act, ―Consumer‖, includes a person who hires or avails of any service for a consideration.31 Therefore in banking transactions, a customer of a bank who has a bank account with the bank or a person who purchases a bank draft, hires locker facility or obtains bank guarantee from a bank are all ―consumers‖ and can prefer complaints
28 http://www.directionservice.org/cadre/ctu/practicesA.cfm?id=71 (Visited on 09-03-2014 at 18:17) 29 Ibid 30 Aarti Dhar ‗Ombudsman for central educational institutions‘, The Hindu, New Delhi, 17th January 2012 31 The Consumer Protection Act, Section 2(1)(d), International Journal of Socio-Legal Research 114 Volume 1 | Issue 1 | ISSN- 2393-8250
under the Act for ―deficiency in service‖ on the part of the bank or for ―restrictive trade practice‖ or ―unfair trade practice‖ adopted by the bank.32 Who are all consumers in banking services? Bank consumer includes 1. Deposit account holders of various kinds – savings bank, current account, overdraft accounts, term deposits. 2. Borrowers of various facilities – term loans , cash- credit/ working capital limits. 3. Credit/Debit card holders. 4. Persons availing guarantee or letters of credit facilities, as also beneficiaries thereof. 5. Person s purchasing bank drafts (including those who are not regular account holders) and beneficiaries thereof. 6. Beneficiary of cheques issued by account holders.
In Vimal Chandra Grover vs. Bank of India,33 it was argued before the Supreme Court on behalf of the bank that the appellant, who took overdraft facility from the bank by pledging shares, is not a consumer within the meaning of the consumer Protection Act. The Supreme Court repelled the arguments of the bank and held that bank is rendering service by providing overdraft facilities to a consumer, which is not without consideration. Bank is charging interest and other charges as well in providing the service. Provision for overdraft facility is certainly a part of the banking and falls within the meaning of ―service‖ as provided in section 2(1)(o) of the Act.
Consumer Forums Customer in relation to banking gives a clear idea of who is a consumer together with a list of persons who have been legally recognised as
32 http://indianresearchjournals.com/pdf/APJMMR/2012/December/8.pdf (visited on 15-03- 2014 at 15:42) 33 [2000 (2) CPJ 11 (SC): AIR 2000 SC 2181] International Journal of Socio-Legal Research 115 Volume 1 | Issue 1 | ISSN- 2393-8250
consumers in relation to banking transactions and services. These persons are entitled to raise disputes against their concerned banks with the Consumer Forums under the provisions of the Consumer Protection Act of 198634. The main objective of this act is to provide for better protection of interests of consumers and for settlements of their disputes.35 Consumer forums which have all the trappings of Civil Courts, which are simple, feasible and equally efficacious, are an alternative remedy available to customers of banks. These forums to a large extent have eliminated the relevance of regular Civil Court in so far as consumer services related to complaints are concerned. As it is very economical there is no Court fee payable for lodging a complaint. Consumer Forums are three tired: 1. The District Forum 2. The State Commission (Appellate) 3. The National Commission (Appellate)
The prescribed limitation period is: (i) The complaint should be preferred within two years from the date of cause of action. (ii) The limitation period may be extended by the Forum on the filing sufficient reasons for delay.
The Limitation Act does not apply to the proceedings before the Consumer Forums. However, the National Commission has been applying the Rules under the Act only on a ground that it would not be conducive to public policy and public good to have a stale claims brought up for adjudication after lapse of long periods of time. Further, it would certainly not be conducive in furtherance of public policy that government agencies
34 http://www.financialexpress.com/news/banking-services-and-consumer-protection/69580 (Visited on 15-03-2014 at 19:00) 35 http://wiki.answers.com/Q/What_is_the_objectives_of_the_consumer_protection_act (Visited on 15-03-2014 at 19:07) International Journal of Socio-Legal Research 116 Volume 1 | Issue 1 | ISSN- 2393-8250
like public sector banks should obstruct the investigation of claims made against them, but putting forward the plea of limitation merely on technical grounds.36
Civil Courts There are certain disputes which cannot be resolved by Consumer Forum due to the involvement of intricate questions of fact and law, recourse to Civil Courts would be inevitable. There are cases where examination of witnesses or detailed scrutiny of documentary evidence, under Evidence Act would be necessary.37 Few complicated issues which could not be satisfactorily adjudicated under the Consumer Protection Act would seek a redressal in a Civil Court.
Filing of writ before High Court The writ jurisdiction of the High Court under the Article 226 of the Constitution could be invoked only when there is no alternative efficacious remedy.In K.V. Padmanabhan V. Consumer Disputes Redressal Forum, Eranakulam.38 The High Court of Kerala was emphatic when it held that the High Court is not statutory, appellate or revisional authority under the Act. An order made by the district forum is appealable under Section 15 only before the State Commission, an order of the State Commission only before the National Commission and the order of the National Commissions only before the Supreme Court.39 When a Redressal Forum inadvertently passes an order although it lacks jurisdiction under the Act, the High Court can quash such illegal order.40
36 Agnes D‘ Mellow v. Canara Bank & Anr. I (1992) CPJ 355 (NC) 37 M.S. Srihari, banking and Consumer Rights, chill publications Nagpur, pg. 14 38 AIR 1992 Ker. 179. 39 K.V. Padmanabhan v. Consumer Disputes Redressal Forum, Ernakulam (AIR 1992 Ker. 179) 40 Calcutta Metropolitan Development Authority v. Union of India AIR 1993 Cal. 4 International Journal of Socio-Legal Research 117 Volume 1 | Issue 1 | ISSN- 2393-8250
Dismissal of a writ petition, not on merit would not operate to prejudice of the complainant in the matter of pursuing other remedies under Consumer Protection Act.41 Banking Ombudsman Banking Ombudsman is a higher official appointed by the RBI The objective of appointing an Ombudsman is to settle customer grievances against deficiency in some banking services. This appointed Ombudsman is either a General Manger or a Chief General Manager of RBI.42 Banks covered under the scheme are the following: Banking Ombudsman scheme is applicable throughout India and all banks are covered under this scheme. The banks may be public sector bank, Private Sector Banks, Foreign Banks and Co-operative Banks.43
Objectives of the Scheme: The basic objective of this scheme is to settle customer complaints. If the customer has any complaints which the bank cannot settle, then it is the duty of the Ombudsman to settle the problem. The settlement is to be made by agreement between the bank and the customer.44
CONCLUSION Though India is a prospering country, Exploitation of consumers by the service providers is rampant in India as well. Though the government has taken steps to protect the consumers by establishing bodies like ombudsman, and introducing consumer protection laws, achieving the intended goal seems to be a distinct reality; As it was noticed in the legal literacy camp conducted by DSNLU Visakhapatnam in Bhopal, that the real sufferers of exploitation are the rural people, who are not even aware of the
41 Bhag Singh Pretam Singh v. maruti Udyog Ltd. (1992)I CPJ 7 (NC) 42 http://www.rbi.org.in/scripts/FAQView.aspx?Id=24 (Visited on 15-03-2014 at 20:03) 43 http://www.keralabanking.com/html/who_is_banking_ombudsman_.html (Visited on 15- 03-2014 at 21:01) 44 Ibid. International Journal of Socio-Legal Research 118 Volume 1 | Issue 1 | ISSN- 2393-8250
basic rights bestowed to them. The ombudsman and other consumer friendly rules/laws are neither promoted by the media nor by others especially in the rural India. Also, there are ‗legal‘ exploitations by the government; one such being the electricity act. Apart from this consumers are often exploited by educational institutes; silence of law further spoils the situation. By introducing the reforms suggested in the paper, the laws can be made to march in tune with society thereby ensuring greater protection of interest of the consumer. International Journal of Socio-Legal Research 119 Volume 1 | Issue 1 | ISSN- 2393-8250
INDIA AND HOMOSEXUAL MATRIMONY: A SOCIO- LEGAL PERSPECTIVE
Anurag Dasgupta*
SECTION 377 : THE HARBINGER OF ALL EVILS It started well back in 1860s when the Victorian morality was looming at large, large enough to pervade into the legislative enactment namely, the Indian Penal Code 1860. It was then that section 377 dealing with unnatural sex had kept bestiality and homosexuality in the same podium. However globalisation has pushed India ahead of the cultural orifice within which the earlier civilisations were limited, today a Indian enjoys an American crass sitcoms with equal vigour as a man sitting in California, and there are no qualms about it. One cannot just limit the effects of globalisation to that of technological and scientific advancements excluding completely the sexual dimensions. India has come a long way from the country which was once controlled by the Victorian morality or the ancient Hindu gospels, today there are single mothers both in US and India; there are divorce at alarmingly high rate both in India and any other cosmopolitan country. In such circumstances to cling to the old excuse of morality won‘t hold much water. More importantly to say that our scriptures never recognised homosexuality would be wrong, ―Vikriti Evam Prakriti‖ thereby meaning what is unnatural is also natural has been inscribed long before in Rig Veda, thereby an implied recognition to the homosexuality. Various intellectuals ranging from Dr Manmohan Singh, Justice Bilal Nazki, Oscar Fernandes, Nelson Mandela, Amartya Sen, Vikram Seth etc have openly demanded the repeal of section 377 at least to the extent of decriminalisation of consensual gay sex.1 There was a time when maybe when engaging in homosexual sex
*4th Year Student, Chanakya National Law University, Patna International Journal of Socio-Legal Research 120 Volume 1 | Issue 1 | ISSN- 2393-8250
was considered to be ‗carnal intercourse against the order of nature‘ but both science and society over the years have stated that the very concept of ‗order of nature‘ has gone a massive change. To cling to the Victorian sensibilities religiously even after such a long time, is extremely ridiculous considering the fact that the Britons themselves have come up with same- sex marriage Act 2013. Indian judiciary on one hand by relying on 19th century Principles of Victorian morality chose to overlook the principles of egalitarianism enumerated way back in the 12th century in Magna Carta The concept of morality to which the section is clinging to is as aptly stated by Fali S Nariman ―archaic and quaint…reflects the era when it was enacted … and at present should be done away with‖2.The very continuance of the section is itself utter disrespect towards the constitution and to the humanity as whole.
HOMOSEXUALITY- A PSYCOLOGICAL DISTORTION ? Till date there has been no concrete theory whereby homosexuality has been proved as a psychological deviation, there has been no scientific grounds for proving homosexuality as an abnormality. Time and again it has been reiterated in WHO reports or American Psychiatric Association that for most of them it is merely a variation of sexual orientation3 ,something which unlike projected is very normal human tendency. Although in the earlier times medical sciences treated homosexuality as an ailment but soon variations followed of how homosexuality was viewed.4 Sigmund Freud believed that the libido inside a human being has bisexual quality, it can
1 Ramesh, Randeep , ―India‟s Literary Elite Call for Anti-gay Law to be Scrapped‖, The Guardian (London)(18 September 2006) 2 Suresh Kumar Kaushal v Naz Foundation 3 American Psychological Association, ―Sexual Orientation and homosexuality”,http://www.apa.org/helpcenter/sexual-orientation.aspx (last visited 28 December 2013) 4J Katz , ―Gay and American History: Lesbians and Gay men in the United States”, New York: Thomas Crowell,(1995) International Journal of Socio-Legal Research 121 Volume 1 | Issue 1 | ISSN- 2393-8250
either develop into a homosexual being or heterosexual being , in the course of development. He went on to state bisexuality as apart of original libido endowment.5 According to him it was only due to social coercion that people suppressed the homosexual part inside them6, however such suppressions are likely to have negative impact psychologically and physically. Havelock Ellis stated that being exclusively homosexual is to be deviant because they form a part of minority, however society should accept them as not only they are harmless but can be valuable too.7 It has been contended in various studies that gay men are likely to have higher rates of anxiety disorders; further the likelihood of suicide among the homosexuals are more when compared to their heterosexual counterparts8, also there are more chances of sexual abuse and drug abuse in case of homosexual beings than compared o heterosexual individuals.9 However these reports should not be a deterrent factor for accepting homosexuals, firstly because none of the above data are actually supported by concrete medical theory, secondly even if we validate the data then it becomes all the more important that it should be a valid reason for accepting homosexuals, because most of the above disorders creep due to societal pressure and coercion, the indifferent attitude of society towards homosexuals, which in turn leads to ego-dystonic sexual orientation whereby homosexuals attempt to change their orientations and hence are subjected to various psychological and behavioural disorders , and ultimately yield to suicide or drug abuse. Hence instead of shunning away people should create a space so that homosexuals
5 Sigmund Freud , Three essays on the theory of sexuality, London: Hogarth Press(1953) 6H.M Ruitenbeek , The problem of homosexuality in modern society, New York: Dutton (1963) 7 Colin Spencer, Homosexuality in History, New York: Harcourt Brace & Company (1995) 8 John Westfeld , Maples, Michael Buford, Brian, Steve Taylor, ―Gay, Lesbian, and Bisexual College Students‖, Journal of College Student Psychotherapy (2001) also see DM Fergusson, LJ Horwood ,EM Ridder , AL Beautrais , ― Sexual Orientation and mental health in a birth cohort of young adults.‖,(July 2005) 9 G Ramafedi, JA Farrow , RW Deisher , ―Risk factors for attempted suicide in gay and bisexual youth”, (June 1991) International Journal of Socio-Legal Research 122 Volume 1 | Issue 1 | ISSN- 2393-8250
can live a life of dignity. No doubt among these homosexuals there would a small percentage of heterosexuals elite who would engage in a homosexual fling merely out of fashion, and it is controversial as to whether such individuals should be penalised or must be construed as manifestation of free will; but then it always advisable to grant someone illegitimate right than cull out a legitimate one. Practitioners of gay affirmative psychotherapy states that homosexuality or bisexuality is not a mental illness and that embracing and affirming gay identity can be a key component to recovery from other mental illness or substance abuse.10The American College Of Paediatrics have drove the last nail to the coffin when they have stated that homosexuals are completely normal people, they are neither ill nor sick, it is just that their sexuality has been expressed differently. There are various factors behind homosexuality, some biological, some psychological but the fact is no one chooses to be a homosexual.11
HOMOSEXUALITY AND RELIGION Since India was once a spiritually developed nation,hence even to this day people tend to justify every act through spiritual connotation. However there are varied believes regarding homosexuality, some out rightly ostracize homosexuality, some are neutral, some openly accept it. Maulana Matinul, Haq Usama kasimi, General Secretary of a political Party has said ―…. even animals don‘t tend to participate in such activities, then why should
10 APA : Guidelines for Psychotherapy with Lesbian, Gay &Bisexual Clients, http://en.wikipedia.org/wiki/Psychology_and_homosexuality (Last visited 28 December 2013) 11 ―Teen Q&A: Gay, Lesbian and Bisexual Teens‖, Children‟s Health Topics: Sexuality, American College of Pediatrics, http://en.wikipedia.org/wiki/Psychology_and_homosexuality (Last visited 28 December 2013) International Journal of Socio-Legal Research 123 Volume 1 | Issue 1 | ISSN- 2393-8250
we?12 And the researcher may humbly answer that this the very thing, the sexual expression that differentiates between an animal and human! Progressive Jewish authorities no longer believe in penalising homosexuality. Christianity on the other hand has mixed standing on the principles of homosexuality. Old Testament strongly abhors homosexuality, some fundamental sects considers AIDS to be a punishment meted out by God against homosexuals. Catholic Church on the other hand does not regard being homosexual as a sin but insists on maintaining chastity and thereby abstain from practising homosexuality.13 Islam out rightly condemns homosexuality. Hinduism however has depicted homosexuality way back in temple walls of Khajuraho. Apart from the above mentioned religions there are various others like Taoism, Zoroastrianism, and Buddhism give implied consent to homosexuality subjected to various conditions. One may find that most of the religions have an implied consent for homosexuality although most of the homophobes don‘t accept it. According to them religion overall condemns homosexuality. Now even assuming their contention, one finds religious intolerance a very tepid reason for non-acceptance of homosexuals. Firstly because religion has always been open to various interpretations and subjected to prevailing morality at that time. Talibans have always used religion as the justification for their barbaric acts, however that does not make their acts lawful. Secondly India being a secular country religion must not play a pivotal factor for the purpose of legislation if otherwise it is not dreadful for the society, the government and the religious beliefs should be kept at safe distance. Thirdly going through religious gospels ,one thing that there is endorsement for feeling of universal love and compassion towards all, be it homosexual or heterosexuals.
12 http://articles.timesofindia.inidatimes.com/20090713/kanpur/281686161 /indian-culture- protest-march-general-secretary (last visited 26 December 2013) 13 http://en.wikipedia.org/wiki/Religion_and_homosexuality#cite_note-36 /Catechism of the Catholic Church( last visited 26 December 2013) International Journal of Socio-Legal Research 124 Volume 1 | Issue 1 | ISSN- 2393-8250
HOMOSEXUALITY AND INDIAN CONSTITUTION. Indian constitution has in its preamble stated that every citizens shall be rendered justice, liberty, equality of status and opportunity, and also fraternity which is what Dr Ambedkar had termed as social democracy. In that very preamble Liberty of thought and expression has been allotted a very pivotal role and so have equality of status and opportunity. In such a scenario to quarantine the homosexuals and criminalise homosexuality would be sheer impertinence towards preamble, the soul of the Indian constitution, the mirror which reflects the culture and the desire of the people. Furthermore Article 14 strongly debars a state from denying any person equality before law or equal protection of the laws.14 Any non- penile vaginal acts are not covered, this very ground is arbitrary and hence violates Article 14.15 Moreover what is to be construed as order of nature has been left for the Court to deduce the same, which yet again gives rise to arbitrariness.16As Justice PN Bhagwati had rightly contented that equality and arbitrariness as sworn enemies, in such a situation to debar homosexuals from practicing homosexuality, to debar them to enter into marital bonds, and hence so discriminate them against the other heterosexuals without a concrete legal ground amounts to patent disregard for Article 14.As argued in the case of Suresh Kumar Kaushal v Naz Foundation sexual intimacy is a core aspect of human experience and is a important for mental health, psychological well being and social adjustment. In order to prevent perversity the section 377 has launched a lethal attack on the dignity of various individuals. Moreover Article 21 so enshrined in the constitution speaks about the preservation of life and the liberty of the persons ;section 377 clearly defies the article something which the framers had thought to
14 The Constitution Of India, 1950 15 AK Roy v UOI (1982) 1 SCC 271; KA Abbas v UOI and Anr (1970) 2 SCC 760 16 Suresh Kumar Kaushal v Naz Foundation International Journal of Socio-Legal Research 125 Volume 1 | Issue 1 | ISSN- 2393-8250
the most pristine part of the whole constitution. Homosexual conduct made criminal, the declaration itself is an invitation to perpetrate discrimination, reinforces societal prejudices.17Even considering the fact the homosexuals are part of minority institution then it becomes all the more important for the state machinery and institutions to protect their rights as it has done in the past with various other religious, linguistic, cultural minorities. Accepting that the section was valid when it was enacted in 1861, the unreasonableness is pronounced with time and justification does not hold validity today.18The 172nd Law Report too have somewhat reiterated the same. In the case of Suresh Kr Kaushal v Naz Foundation, it was rightly argued by learned Counsel Shri Dhavan that section 377 targets ‗LGBT‘ as a class and hence discriminatory in nature .Also that by keeping homosexuals on the same podium as that of criminals creates fear and vulnerability19which also impairs both the physical and psychological health thus violating Article 21. Section 377 also violates the constitution by infringing in the realm of privacy, something which was at considered to be the most sacrosanct entity in a welfare–democratic government. To consider the judgement of Honourable Supreme Court, upholding homosexuality as a crime, has sent ripples across the other South-Asian nations which had heavily relied on India, the world‘s largest democracy to echo the voices of millions. Article 29(2) of the UDHR states that in the exercise of rights and freedoms everyone shall be subjected only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and meeting the just requirements of morality, public order and the general welfare in a democratic society, and not otherwise. Vikram Seth has rightly while criticising the judgement held that
17 Peerless General finance Investment Co ltd v RBI (1992) 2 SCC 343; Grace Jayamani v EP Peter AIR 1982 Kant 46 18 DS Nakara v UOI (1983) 1 SCC 305; Kartar Singh v State of Punjab (1994) 3 SCC 569; M Nagraj v UOI (2006) 8 SCC 212 19 Prem Shankar Shukla v Delhi Adminstration (1980) 3 SCC 526; DK Basu v State of West Bengal (1997) 1 SCC 416 International Journal of Socio-Legal Research 126 Volume 1 | Issue 1 | ISSN- 2393-8250
―..it is intellectually shallow and ethically hollow……to take away the rights of 50 million LGBT in India…it is scandalous and inhumane‖20
SAME SEX MARRIAGE: WHY INDIA SHOULD GET READY TO AMEND THE LAWS? One can see very clearly from the above points that homosexuality is very much a part of regular society, some acknowledge it others suppress it, but in such a situation to debar homosexuals of their right? A right to which they are entitled for the simple fact that are depending only what was promised when India took birth that is freedom. Moreover the fact that they are placed on the same podium as that of criminals is extremely dehumanising. India no doubt remains one of the earliest countries to have strong bouts of morality and cultural reverence but at the same time India was also one of the earliest countries to respect the spirit of humanity, it has been long been a party to UDHR, and even the Indian constitution reflects so, but then the decisions of the courts portray something else. No doubt the road won‘t be smooth enough, but that should not be the reason for promoting discrimination against the homosexuals, from debarring them of some basic rights, including matrimonial. There would be political divide between gays and non-gays, no doubt some parties would try to play electoral cards but then, isn‘t religion, caste, gender also subjected to the same? Indian society is surely not going to accept a homosexual family (even though there number would be minimal), but then it had not accepted live-in relationship either, but now with the help of legal prudence it has accepted. Moreover India is one of those countries where people still raise
20 Soutik Biswas, ―Why author Vikram Seth is angry‖ ,http//www.dawn.com/news/1075388/why-indian-author-vikram-seth-is –angry( Last visited 26 December 2013) International Journal of Socio-Legal Research 127 Volume 1 | Issue 1 | ISSN- 2393-8250
their eyebrows on sensual dance numbers, still debate over whether Public display of affection should be criminalised, still fidget over the legal age for drinking, still think twice before marrying a person of different religion, still depict homosexuality as a comic caper and nothing more…yes it would be difficult to accept homosexuals but then when did tolerance became a problem for India and it is in the light of these rights that India must overlook the pseudo-moral barriers it has so envisaged. In such a situation the Indian state machinery can play an indispensable part to encourage people to assimilate homosexuals. Most of the homosexuals out there are in deep state of transition because inside them the voice of their sexual orientation is something and on the outside the governments voice is something else, and in this very conflict is leading to their psychological extortion, to which many of them have already succumbed. There has been various charlatans who have claimed that authorising same-sex marriage would lead to ‗Cultural Apocalypse‘ but then what was the actual Indian Culture? Was it Kamasutra or was it the Victorian sexual philosophies? Indian culture which history has rightly witnessed have undergone massive changes over each generation, at such a juncture to claim that the ‗True Indian Culture‘ is being defiled is itself a idiotic claim. Also even assuming the fact that homosexuality be against the very Indian morality, or the normal notion of sexuality, even then also one can practice his heterosexuality on his personal space, no one has coerced him to turn homosexual, but one‘s own personal belief should not be allowed to overpower someone else‘s liberty and fetter freedom of thought. Various fingers have pointed to the direction stating that with legitimacy of homosexuality the obscenity and vulgarity is bound to increase, but with utmost respect the researcher wishes to state that legitimising homosexuality in no manner is intended to override section 294 IPC which already aims at curbing public obscenity whether caused by heterosexual or homosexual acts. International Journal of Socio-Legal Research 128 Volume 1 | Issue 1 | ISSN- 2393-8250
There have been many critics who have claimed that same-sex marriage is likely to corrupt society. The counter-question is how? No answers. But the business of adoption is really going to get boosted up with, homosexuals either adopting or engaging in IVF or artificial insemination something which was largely ignored by heterosexuals. Legalising homosexual marriage would also ameliorate the lives of those gays who are forcibly married off with opposite sex for the fear of social debasement. Also that the legalising homosexuality and thereby same-sex marriage would encourage gays to come out in the open and address their problems especially HIV/AIDS which would in turn allow the government to intervene effectively ,as has been in the case of China and Brazil. Moreover UNDP director has rightly stated that countries which protect homosexuality have double the rate of coverage of HIV prevention services-as much as 60%.21 Critics have claimed that same-sex marriage would lead to legislation- upheaval since all the laws regarding marriage, divorce, adultery etc would need to be changed, but didn‘t the concept of backward class too lead to reservation policy? Or Dowry Prohibition Act for abolition of dowry? It is only when such social upheavals happen and that the legislature adequately answers them that t we feel the presence of a democratic welfare government and the work of legislature. As Eugene Ehrlich had rightly said is that laws must be in consonance with the centre of gravity which lies in the society and which something like society is very dynamic. There has been yet another argument that homosexual family would be a bad influence on society, the children who grow in such homosexual environment are likely to be drug addicts, social misfits, perverted, be lonely. Homosexual marriage also many of them claim that has high divorce rates. All of the above problems can be equally be associated with
21http://www.macaudailytimesnews.com/index.php?option=com_cotent&task=view&id=18 780&Itemid=32 (Last visited 26 December 2013) International Journal of Socio-Legal Research 129 Volume 1 | Issue 1 | ISSN- 2393-8250
heterosexual marriages as well, the heterosexual divorce rate for instance in US is 50%.22 The fact that how a society or a child is influenced is very subjective in nature, also influence is never an isolated identity whereby only one factor namely family plays the only role, it is an agglomeration of family, society, schooling, perceptions etc. Even in case of same-sex parenting the child, can be nurtured through love and care. Much research has documented the lack of correlation between parent‘s sexual orientation and any measure of child‘s emotional, psychosocial and behavioural adjustment. These data have showed no risk to children as a result of growing up in family with gay parents.23 It has been time and again stated by American Psychological Association that there has been no scientific basis to show that LGBT families have problem in social relationships, or that the children are likely to be abused, or that they have problem with sexual identity or that they have more chances of being sexually abused.24 Many of the critics like Charles Colson and Anne Morse in their Essay, ―Societal Suicide‖ have pointed that homosexual parenting does not involve procreation of children, and are hence against the order of nature. However going by that analogy even the marriage between heterosexuals who do not procreate child due to any medical, sexual or personal reasons should also be considered against the order of the nature? Recognising same-sex marriage not at all endanger the heterosexual marital institution already existing in India. It is just that there would be recognition of a parallel marital institution.
22 Rachael Flair, ―Argumentative Essay:Gay Rights‖ http://www.redbubble.com/people/barefootmama/writing/3841495-argumentative-essay- on-societal-suicide-gay-rights (Last visited 27 December 2013) 23 JG Pawelski , EC Perrin , JM Foy , ―The effects of marriage, civil union and domestic partnership laws on health and well being of the children‖,( July 2006). 24 APA : Guidelines for Psychotherapy with Lesbian, Gay &Bisexual Clients, http://en.wikipedia.org/wiki/Psychology_and_homosexuality (Last visited 28 December 2013) International Journal of Socio-Legal Research 130 Volume 1 | Issue 1 | ISSN- 2393-8250
Various sociologists have predicted that crimes like sodomy (non-voluntary) would increase, sexual bullying including that of same sex would also rise, if homosexuality is decriminalised and same-sex marriage be allowed. The fact that there are rapes should going by the same analogy criminalise every heterosexual relationship? The fact that homosexual relationship and thereby same-sex marriage if legalised does mean that such marriage or relationship must be purely consensual in nature, any form of coercion or bullying would be dealt strictly as a crime against human body. However the fact that homosexuality is criminalised would surely give enough reasons for the homophobes to engage in bullying against the homosexuals, thereby sexual tensions between the two groups are bound to rise. One thing is for sure as stated by Sonal Sharma, a research assistant in Ambedkar University Delhi that criminalising homosexuality would do is ,that if a homosexual is raped, there won‘t be any remedy, since the victim would himself be treated as criminal in the first place25.In Russia where there have been passage of various Anti-Gay laws has number of cases of gay teenagers being tortured and forcibly ousted on the internet26.As per a report in the Southern Poverty Law Centre , ―Many of the American religious right groups who have lost their battle against LGBT rights in the US are now aiding and abetting anti-LGBT forces in countries where anti- gay violence is prevalent‖27. Yet another important argument that has been placed forward in the case of Baker v Vermount28, that if same-sex couples are contributing equally like other heterosexuals namely by paying taxes, then why should they be denied such an important right i.e right to marry. Moreover gay and lesbian couples argued in the case that they were denied the protection of more than 300
25 Gayatri Jayaraman , ―Cover story: Gay Rights‖, India Today ,December 30 2013 26 Emine Saner ―Gay rights around the world: the best and worst countries for equality‖ http://www.theguardian.com/world/2013/jul/30/gay-rights-world-best-worst-countries (Last visited 27 December 2013) 27 ibid 28 744 A.2d 864 (Vt. 1999) International Journal of Socio-Legal Research 131 Volume 1 | Issue 1 | ISSN- 2393-8250
laws as a result of being not allowed to marry. Also in another case which though pertains mainly to racism can be transplanted in the case of same-sex marriage as well ; Loving v Virginia29 ,the court held that the inter-racial couple cannot be denied the right to live where they pleased due to their interracial marriage. Thereby meaning one‘s fundamental rights cannot be cut off through an otherwise legal marriage. As rightly said by David Tucker; ―..Marriage should be regarded and accepted as legal protections of people. Marriage is recognised to be person‘s constitutional right. The traditional sexual morality are to accept the new reality. They should understand that the things can be changed, and every person has the right to make his or her own choice. People are different they have different interests, values etc. However they all have common right –right to be happy30‖ Gay rights laws do not give the gay community any special privileges but simply the same basic rights of equality that every straight person is given31; including marriage and raising family. Like Aditya Advani, states that ―…at the end of the day gay couples lead very ordinary, boring lives like anyone else….there is nothing extraordinary about us..All we want to do is to lead these boring , ordinary lives.32‖
29 388 U.S. 1 (1967) 30 David Tucker, ―Gay Marriage: Free Essay Sample on Sociology” http://www.helpfulpapers.hubpages.com/hub/Gay-Marriage-Free-Essay-Sample-on- Sociology (Last visited 27 December 2013) 31 Kelkel1185, Rockford, OH , ―Gay Rights‖ http://www.teenink.com/opinion/social_issues_civics/article/249524/Gay_rights (Last visited 27 December 2013) 32 Gayatri Jayaraman , ―Cover story: Gay Rights‖, India Today ,December 30 2013 International Journal of Socio-Legal Research 132 Volume 1 | Issue 1 | ISSN- 2393-8250
CONCLUSION There has been doubt, lots of clamour as to whether homosexuality should be criminalised or not, some of them have stated it a blot on the face of the fundamental rights so enshrined, many other have gone to the extent of saying that fundamental rights are subjected to limitations, and criminalising homosexuality and banning same-sex marriages in India are just part of those very limitations. However in such a situation it is Justice Vivan Bose33‘s judgement that leads all the cacophony to rest, ―When there is ambiguity as to construction of clause in the chapter of fundamental rights, it is our duty to resolve it in favour of the freedoms so solemnly stressed.‖The last and perhaps the most important reason for legalising Gay marriages would be ―celebration of love‖ which perhaps rises above all the social precincts and political principles. Vikram Seth has beautifully expressed this very above notion ―..we live on a small planet as unimportant star. Life is not easy for anyone. Loss, fear, failure and disappointment, pain, ill-health, doubt and death engulf everyone equally. What makes life bearable is love and to be loved….To not able to love the one you love is to have life wretched away. To do this to someone else is to murder their soul. No one who thinks about this –free from extraneous voices in their head – would ever, if they are human, dream of being so cruel.34‖ The fact that India was one of the earliest advocates of love, alternate- sexuality, humanity and equality makes it really disgraceful for the Indian culture and community as a whole to such indifferent attitude towards same- sex relationship. The answer to whether Indian society is ready for same-sex marriages, would be no, because somewhere there are still societal fears, pseudo-moral principles, religious deterrence that still binds most of the Indians but then that should not deter from amending and thereby legalising same-sex marriages in India. If one introspects; India was not ready even
33 Krishna v State of Madras (1951 SCR 621) 34 Vikram Seth, ―Some thoughts‖, India Today December 30 2013 International Journal of Socio-Legal Research 133 Volume 1 | Issue 1 | ISSN- 2393-8250
then (owing to the dissenting clamours) when reservation policy was mooted, but nevertheless the government machinery went ahead with it and people eventually to a large extent accepted it. With the sexual belligerence going all over the world, India should not stay behind from espousing what many believe as the newest challenge to humanity. International Journal of Socio-Legal Research 134 Volume 1 | Issue 1 | ISSN- 2393-8250
A SHORT INTRODUCTION TO THE DEBATES AND POLITICS OF THE FDA AND THE PHARMACEUTICAL INDUSTRY Alaukik Shrivastava* Saakshi Sharma** INTRODUCTION This article deals with the politics and the various debates involved in the field of pharmaceutical industry in reference to the lifesaving medicines and treatments. It is hardly a contested fact that there is something wrong in the way the Food and Drugs Administration (FDA) and the pharmaceutical industry works; keeping in mind that the prime objective of both the institutions is a moral one, one that involves the lives of many, i.e. insuring proper health and access to life saving drugs. Let us now take a glimpse at the story of Ron Woodroof, also shown in the Oscar winning movie, Dallas Buyers‘ Club (2013), to have a basic understanding of the topic. Ron Woodroof was confronted with his mortality after he was diagnosed with AIDS. AIDS is almost 100% terminal if left untreated but antiretroviral drugs (ARVs‘) and treatment may convert it into a chronic, yet controllable disease that would be more like diabetes or blood pressure.1 Ron Woodroof then went to the hospital for his treatment but found out that the medicines he was administered were deteriorating his health even further. He then had almost no faith in the hospital staff and in the medicines he was administered and then he decided to make his own way. He started smuggling and taking illegal drugs from all around the world and found out that he was responding very well to the drugs he was administrating himself. He says that the government and the pharmaceutical companies are trying to
*3rd year, B.A L.L.B (Hons.), Institute of Law, Nirma University,Ahmedabad. **3rd year, B.B.A L.L.B (Hons.), Institute of Law, Nirma University,Ahmedabad. 1 Rahul Rajkumar, Comment, The Central American Free Trade Agreement: An End Run Around the DOHA Declaration on TRIPS and Public Health, 15 ALB. L.J. Sci. & TECH. 433, 436, (2005). International Journal of Socio-Legal Research 135 Volume 1 | Issue 1 | ISSN- 2393-8250
make money by limiting the number of AIDS medicines in the market and thereby playing with the peoples‘ health. He then started Dallas Buyers‘ Club, a club that provides illegal medicines to people suffering with AIDS. The Dallas Buyers‘ Club has smuggled as many as 112 drugs that are illegal in the United States. During Ron Woodroofs‘ time, the drug called AZT which was once considered illegal in the United States itself was administered to him. But Ron Woodroof and thousands of his customers preferred taking a drug called dideoxycytidine (DDC) instead of AZT. Later, years after Ron Woodroofs‘ death, AZT was found to cause nerve damage and the doses of AZT was gradually lowered down. Also, the use of DDC in the treatment of AIDS was allowed. So, in a sense, Ron Woodroof was right in his actions, in his smuggling the then illegal drugs, as it saved the lives of many people suffering from AIDS. This story raises a number of issues. Why did the FDA not take such a step before? Was it because of the fact that the big pharmaceutical companies (also referred to as the ―Big Pharma‖ was not able to make money out of DDC then? Why did the government and the Big Pharma not listen to the buyers‘ club? One thing is for sure that many lives were risked and many deaths were caused because of the time the government took in legalizing DDC. This presents before us the first debate, the government v. the buyer‟s club. Ron Woodroof always had this discontent in his mind that the government lacks in taking action when it is most needed of them to take. But why did the government keep quiet when it was most needed of them to respond. It is also to be noted that no clarifications or even a simple apology was not given by the government for their inaction. There is clearly something fishy in the way the government and the pharmaceutical industry work. THE DEBATE OF LIMITS OF PATENT RIGHTS The second debate is the debate of limits of patent rights. ARVs (anti-retro viral), for example, are needed to cure cancer. These ARV drugs, which need to be taken for life, have been widely available in the United States, International Journal of Socio-Legal Research 136 Volume 1 | Issue 1 | ISSN- 2393-8250
but have been, because of the cost, "out of reach for most of those living with HIV/AIDS around the world.‖2 "In 2000, the average worldwide price for patented ARVs was more than $10,000 per patient per year." Today, the same medicine sold in generic form costs as little as $168 per patient per year. For example, because the ARV medicines have not been patented in Guatemala yet, generic competition has decreased the prices of ARV medicines, enabling better access to essential medicines.3 The generic drugs cost $216 per person per year, while the brand-name drugs cost $4,818 per person per year. However, as developing countries enter free trade agreements that include intellectual property protections, access to these life-saving generic drugs may be obstructed, increasing the number of HIV/ AIDS related deaths. According to humanitarian organizations such as Oxfam and MSF, strict intellectual property rights will prevent developing countries from gaining access to generic drugs for their poorer patients. To address the public health crisis, availability of affordable antiretroviral medications in developing countries is necessary. But with more stringent intellectual property policies in bilateral agreements, prices of these medicines will increase enormously. Supporters of access to generic medicines argue that "essential drugs are not just another consumer product but a human right, and that patients are injured by patents.‖4 The Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS") gives member countries some flexibility for patent protection. However, with the latest implementation of the Dominican Republic-Central
2 Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovations, 20 BERKELEY TECH. L.J. 1031, 1032-33 (2005). 3 Press Release, Mddecins Sans Fronti~res, New Guatemalan Law and Intellectual Property Provisions in DR-CAFTA Threaten Access To Affordable Medicines (Mar. 11, 2005), available at http://www.accessmed- msf.org/prod/publications.asp?scntid=14320051010373&contenttype =PARA.
4 Heimel, supra note 7, at 450.Hiemel, supra note 7, at 472 (citing Nathan For et al, The Role of Civil Society in Protecting Public Health Over Commercial Interests: Lessons from Thailand, 363 LANCET 560, 561 (2004)). International Journal of Socio-Legal Research 137 Volume 1 | Issue 1 | ISSN- 2393-8250
America Free Trade Agreement ("CAFTA"), drug companies face a barrier in manufacturing generic drugs. These intellectual property protections will probably prevent access to affordable, generic drugs necessary for patients in the participating developing countries.
THE TRIPS v. CAFTA DEBATE
To understand the limits of patent debate it is also important to understand the TRIPS v. CAFTA debate. In developing the TRIPS agreement, the drafters' focus was to create universal standards for patents on pharmaceutical products.5 However, CAFTA may disturb this international uniformity of patent protection for pharmaceutical products because it sets different, narrower standards. Because of the pressure from developing countries and non-governmental organizations, in November 2001, the WTO convened in Doha, Qatar to address the public health initiatives." The WTO Members adopted a separate interpretative statement called the Declaration on the TRIPS Agreement and Public Health ("Doha Declaration"), where public health commitments were solidified. The Declaration stated that the "TRIPS Agreement does not and should not prevent members from taking measures to protect public health.‖6 The Declaration also gives the developing nations the "right to protect public health and, in particular, to promote access to medicines for all.‖ In addition, the Declaration benefits the developing countries by extending the deadline for enacting the TRIPS provisions. Thus, TRIPS, as modified by the Doha Declaration, now provides safeguards for generic drug manufacturers to produce cheaper and
5 Heimel, supra note 7, at 450. 6 World Trade Organization, Ministerial Declaration on the TRIPS Agreement and Public Health of 14 November 2001, WT/MIN/(01)/DEC/2, 41 I.L.M. 755 (2002), available at www. wto.orglenglish/thewto e/minist e/min0le/mindecltripse.pdf [hereinafter Doha Declaration]. International Journal of Socio-Legal Research 138 Volume 1 | Issue 1 | ISSN- 2393-8250
accessible medicines. However, the latest CAFTA Agreement provides for stricter intellectual property provisions that would limit the public health commitments set forth in the Doha Declaration and foster the HIV/AIDS epidemic in Central America and the Dominican Republic. On the other hand, proponents of CAFTA also have something interesting to say. Terry McGraw, Chairman, President and CEO of The McGraw- Hill Companies, testified before the Full Committee of the House of Ways and Means that CAFTA will benefit the U.S. markets and advance the competitiveness of the CAFTA signatories' industries and the development of a stronger, more stable hemisphere.7 He further stated that CAFTA is the next logical step to promote stability and democracy in the Central American region and is a symbol of U.S. support and engagement in open international markets. McGraw also testified that CAFTA's strong intellectual property rules are critical to promote innovation and new research. Though the CAFTA Agreement may promote better research and development in the pharmaceutical industry, the consequences are detrimental to the participating nations' public health. Specifically in the pharmaceutical industry, CAFTA proponents support the free trade agreement for many reasons. The major pharmaceutical companies (commonly known as Pharma) believe that they should be rewarded for innovation and the risk-taking efforts in researching and developing the essential medicines because the research is quite expensive and very time-consuming. Furthermore, drug companies believe that patent protections are necessary for the company to recoup the cost of investment for the innovation of new drugs.8
7 Terry McGraw, Chairman, Testimony Before the Full Committee of the House of Ways and Means, (Apr. 21, 2005), available at http://waysandmeans.house.gov/hearings.asp?formmode= view&id=2608. 8 Shanker A. Singham, Competition Policy and the Stimulation of Innovation: TRIPS and the Interface Between Competition and Patent Protection in the Pharmaceutical Industry, 26 BROOK. J. INT'L L. 363, 365 (2000). International Journal of Socio-Legal Research 139 Volume 1 | Issue 1 | ISSN- 2393-8250
CAFTA proponents put forward the argument that the generic drug companies getting a free ride are detrimental in many levels. Because they cannot provide the upfront expenditures for research and development, generic drug manufacturers "piggy back" on Pharma companies by relying on Pharma's costly test data. As a result, the generic drug companies do not have to repeat the expensive and time-consuming research in developing the essential drugs. Thus, these manufacturers could produce the same drugs at a lower cost for patients in need. But proponents of CAFTA claim that it would be unfair to allow generic drug companies to obtain a free ride and use the pharmaceutical companies' test data in developing cheaper medicines. Moreover, if generic drug companies can easily copy the products of drug research, the economic incentive to conduct new drug research is greatly diminished. Essential drugs are not just another consumer product but a human right, and that patients are injured by patents. After comparing the provisions of the CAFTA and TRIPS Agreement, one sees that CAFTA would extend the monopoly rights of pharmaceutical companies, delaying or limiting the introduction of generic competition. "According to medical humanitarian groups such as Oxfam and MSF, CAFTA's intellectual property protections will give monopoly- like status to high-priced, brand-name drugs in poor markets, potentially killing off generics" in Central America and the Dominican Republic. Patent protection is supposed to reward innovation, but stricter intellectual property protections can oust other competitors and eventually reduce innovation, which contradicts the core purpose for intellectual property protections in the first place. Additionally, there may be enough incentives already for drug research and development that CAFTA is just excessive. The government may offer research grants, tax benefits, public-funded research, International Journal of Socio-Legal Research 140 Volume 1 | Issue 1 | ISSN- 2393-8250
etc.9 At least these big drug companies should consider these incentives for research and development. Patent protections through the strict CAFTA provisions should not be the only alternative to fund their expensive research and development. Even if drug companies do not overstate the need for more rewards, society should accept less innovation to distribute drugs to poor people. Also, to protect the big pharmaceutical companies, five years of market exclusivity may be reasonable to compensate for their data testing. Better quality drugs and research of the essential medicines are necessary. But once a drug is approved and protected for at least five years, the drug testing data should be made available for the generic drug companies to develop affordable drugs for the poor.
CONTINUING ON THE LIMITS OF PATENT RIGHTS The moral justification of the patent rights comes from two primarily claims: (1). The first argument is the fairness or justice argument which says that those who spend time and money on developing a particular product or an expression of an idea deserves a chance to receive compensation if their product is useful and beneficial to others who are willing to pay for it. (2). the second part of the argument is based on consequences. It states that unless developers are allowed a period during which to recoup their investment and make a profit, the incentive to produce new products beneficial to the society will be greatly reduced. Both these arguments serve as the manifold arguments of the pharmaceutical industry and are mainly used by them against their critics. These arguments do have weight in them, but what they lack is a proper dialect with their critics.
9 Jessica J. Fayerman, Comment, The Spirit of TRIPS and the Importation of Medicines Made Under Compulsory License After the August 2003 TRIPS Council Agreement, 25 Nw. J. INT'L L. & Bus. 257, 275 (2004). International Journal of Socio-Legal Research 141 Volume 1 | Issue 1 | ISSN- 2393-8250
Taking one step further, the industry then make and use laws to protect their interest and serve them with profit so that they can develop new medicines. Thus they defend their techniques to extend the time before which generic drugs can be introduced, to extend patent protection on an international level through institutions such as the WTO, to produce me-too drugs or drugs which are only marginally different from the existing drugs rather than concentrating on the breakthrough drugs. Along with all these, the industry also conducts give away programs so as to appear moral and ethical. On the other hand, the moral analysts argue on the point that access to health care and life saving treatments and medicines is the basic moral duty of the pharmaceutical industry and the industry is not able to serve that. This lack of dialogue between the two sides results in extremists in both the sides which weakens each of their claims. The lack of communication arises because both the sides speak different languages. The moral analysts speak in terms of morality and ethics. On the other hand, the industry speaks the language of law and economics. What is needed is a proper dialogue, a moral justification. The giveaway programs are just the social responsibility of the pharmaceutical industry; it cannot be the moral backbone of their actions. Also, it is difficult for any government to represent both the consumer and the industry, and the public‘s trust in the government is already weakened when that industry is pharmaceutical industry, which is alleged to be the biggest lobbying group in any country.
THE POLITICS OF FDA
U.S. Food and Drug Administration (FDA) drug review bears a structural similarity to many decisions made by other regulatory agencies: high uncertainty, low reversibility, avoidance of observable error, and high political stakes that induce lobbying by interested parties. To use any new International Journal of Socio-Legal Research 142 Volume 1 | Issue 1 | ISSN- 2393-8250
pharmaceutical product, the patient must secure the approval of two agents: a licensed physician and the U.S. Food and Drug Administration (FDA). FDA plays a major and important role in forming the pharmaceutical industry in its entirety: the past, the present and the future. The agency‘s drug review decisions are essentially final (contesting them is extremely difficult and costly) and immensely consequential (regulators in other nations frequently cue off of the FDA‘s decisions). If the FDA so chooses, it can materially impede the flow of new products to the pharmaceutical marketplace or it can help accelerate that flow. The FDA is often alleged to be involved with the Big Pharma so as to generate and maximize their profits. This claim has never been countered by the FDA. Not even a single statement or any justification has been given by the FDA contrary to this claim. FDA behaves in ways that enhance its reputation for protecting consumer safety and public health. As gauged by public opinion polls, the FDA remains one of the most popular agencies in government, regularly securing 70 percent or greater ―approval‖ of its performance among sampled respondents. Buttressing this popularity are powerful symbolic lessons of history: The FDA is widely credited with saving thousands of American lives in its response to the sulfanilamide tragedy of 1937 and the thalidomide scandal of 1959–1961. Congress dramatically strengthened pharmaceutical regulations after each of these events. In short, whether or not the agency deserves it, the FDA clearly possesses a reputation for protecting public health and consumer safety.
This reputation did not arise by accident but is the result of refined bureaucratic strategies. FDA officials have labored for years to craft and guard their organizational legitimacy. They have done so through frequent contact with their various constituents: attending professional meetings; giving lectures to ensure that the FDA‘s perspective on a given issue is heard; and cultivating the advice of academic and medical scientists, International Journal of Socio-Legal Research 143 Volume 1 | Issue 1 | ISSN- 2393-8250
particularly on FDA advisory committees. Every time the FDA reviews a new drug, it ―invests‖ (takes a chance with) its reputation. There are three critical aspects of this decision. These are inherent uncertainty, asymmetric observation of error and low reputation reversal rate. It can be taken for a fact that the FDA works for its reputation rather than anything else. A. Schmidt states that, ―In all of the FDA‘s history, I am unable to find a single instance where a Congressional committee investigated the failure of FDA to approve a new drug. But, the times when hearings have been held to criticize our approval of new drugs have been so frequent that we aren‘t able to count them… The message to FDA staff could not be clearer. Whenever a controversy over a new drug is resolved by its approval, the Agency and the individuals involved likely will be investigated. Whenever such a drug is disapproved, no inquiry will be made.‖10
All these aspects not only question the intention of FDA but also make it an institution to be feared by the public. If a person is uncertain about the food and drug he is administered, it is a serious allegation and discontent against the state and the FDA must respond immediately.
CONCLUSION
It can be stated for a fact that there is something wrong in the way the FDA and the pharmaceutical industry operates. There are many debates going on in the medical world, some covered in this article, some left out and some yet to be known. The primary concern of the state must be finding out a solution to the same and that too in a limited time period. These debates concern themselves with millions of lives and a wrong step may lead to thousands of deaths. It is high time to respond. The sovereignty of the state
10 A. Schmidt, ―The FDA Today: Critics, Congress, and Consumerism‖ (Speech given at the National Press Club, Washington, D.C., 29 October 1974), quoted in H. Grabowski, Drug Regulation and Innovation (Washington: AEI Press, 1976), 76 International Journal of Socio-Legal Research 144 Volume 1 | Issue 1 | ISSN- 2393-8250
is well preserved if it is popular sovereignty. But it seems that the FDA is working on the principles of dynastic sovereignty. With such an outlook, humanitarian movements and agitations will uproar in the society creating further discontent. What is needed is a strong stable solution, or atleast a proper dialect with the other side. It is high time to respond.
REFERENCES
1. A. Schmidt, ―The FDA Today: Critics, Congress, and Consumerism‖ (Speech given at the National Press Club, Washington, D.C., 29 October 1974), quoted in H. Grabowski, Drug Regulation and Innovation (Washington: AEI Press, 1976), 76. 2. www. fda.gov. 3. Daniel P. Carpenter, The Political Economy Of FDA Drug Review: Processing, Politics, And Lessons For Policy, Health Aff January 2004 vol. 23 no. 1 52-63. 4. Christine A. Chung, A Cry For Cheap Drugs: CAFTA'S Inflexible Intellectual Property Protections Create an Ominous Impact on Life- Saving Medicines, 13 Sw. J. L. & Trade Am. 171 2006-2007. 5. Maxwell J. Mehlman, Rationing Expensive Life-Saving Treatment,1985 Wis. L. Rev. 239 1985. 6. Richard T. De George, Intellectual Property and Pharmaceutical Drugs: An Ethical Analysis, Business Ethics Quarterly, Vol. 15, No. 4 (Oct 2005), pp. 549-575. 7. Ian Maitland, Priceless Goods, How should Life Saving drugs be priced? , Business Ethics Quarterly, Vol. 12, No. 4, Health Care and Business Ethics, (Oct.2002), pp. 451- 480. 8. Michael Givel, Phillip Morris‘s FDA Gambit: Good for Public Health? , Journal of Public Health Policy, Vol. 26, No. 4, (2005), pp. 450-468. 9. Thomas J. Phillipson and Eric Sun, Is the Food and Drug Administration Safe and Effective? , The Journal of Economic Perspectives, Vol. 22, No. 1, (Winter 2008), pp. 85-102. 10. Edward J. King, Don't Bite the Hand That Provides Life-Saving Drugs: Application of the Hatch-Waxman and Sherman Acts to the Pharmaceutical Industry and the Detrimental Effects to Future Innovation in Order to Achieve Current Savings for Consumers, 49 Vill. L. Rev. 591 (2004). 11. Bill Minutaglio, Buying Time, Newspaper Article on Ron Woodroof. 12. Amy Kapczynski et al., Addressing Global Health Inequities: An Open Licensing Approach for University Innovations, 20 BERKELEY TECH. L.J. 1031, 1032-33 (2005). International Journal of Socio-Legal Research 145 Volume 1 | Issue 1 | ISSN- 2393-8250
GLOBAL INTERNET CENSORSHIP AND THE NEED FOR COMPREHENSIVE REGULATORY MECHANISM S.L.Sriram*
Introduction
With global Internet penetration reaching nearly 36% across the world1, the internet is now used by one out of every three persons. The internet, to put it simply, is a large network of interconnected computers. Large enough that one in three people are connected to the network. A direct by-product of the internet is the creation of contemporary forms of communication, which we will broadly categorise as ‗Social Media‘. Social Media revolves around user generated content in interactive platforms allowing the kind of freedom that traditional forms of real and virtual media lack. Social media platforms can be divided on the basis of their content; Blogs (BlogSpot), micro-blogs (Twitter), content communities (YouTube), collaborative information (Wikipedia) etc. Most social media platforms like Facebook and Twitter rely on their highly interactive nature to attract a large number of internet users who in turn attract advertisers, thus driving up advertising revenues for the sites. And given the large number of users, many users advertise their own businesses to a customized consumer base, for direct and immediate response. Thus, social media platforms have become hubs of economic activity as well, while still being a place for people to interact with each other. This small fact has huge implications. Social networking cannot be dismissed as a mere technological fad. Interpersonal communication on the internet transcends geo-political and
* Author is a Second Year BA.LLB student in University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University, Delhi. 1 World Bank. (n.d.). Internet users (per 100 people). Retrieved from: http://data.worldbank.org/indicator/IT.NET.USER.P2/countries/1W?display=default [Accessed: 29 Nov 2013].
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geo-cultural borders. In a way, the Internet has given birth to a global culture that may be influenced by localized habits, but largely follows a common linguistic model. The internet allows unrestrained freedom to anybody who wants to express themselves, and is a hub for thoughts and ideas to flow freely. Anybody on the internet can say anything they wish to, and believe to be true. And if people can be influenced to buy products, they can be influenced by ideologies and beliefs too, if convincingly put across.
Political Impact
Social media is built upon the premise of direct and personal communication. Traditionally, politicians rely on their oratorical skills and door-to-door campaigning, to keep in touch with the general public and are now switching to an easier and more convenient means: Social media. Political campaigns across the worlds now rely on social media platforms to advertise themselves and attack their opponents in equal measure. Advertising on these platforms has a primary advantage that most other forms of advertising cannot offer; the power to tailor the audience for any particular ad, instead of the other way around, based on any number of criteria, including age, gender, region etc. In the recent past, the growing impact of social media on politics across the world has garnered increasing attention from various researchers and scholars. In a massive study that had a sample of 61 million people undertaken in 2012, using the Barack Obama re-election campaign, the researchers concluded that online political mobilisation works.2 The study was conducted on three groups of people on the online platform Facebook; one group was shown constant messages asking them to vote, and a list of
2 Robert M. Bond, Christopher J. Fariss, Jason J. Jones, Adam D. I. Kramer, Cameron Marlow, Jaime E. Settle & James H. Fowler (2012). A 61-million-person experiment in social influence and political mobilization. Nature. 489, 295–298. doi:10.1038/nature11421 International Journal of Socio-Legal Research 147 Volume 1 | Issue 1 | ISSN- 2393-8250
friends who had already voted, one group was shown messages suggesting them to vote, without the list of friends who had voted while the third group was shown no political message at all. Then, the electoral data was studied using publicly available records and it was found that the data suggested that the tactics employed directly increased voter turnout by as much as 60,000 voters and indirectly through social contagion another 2,80,000 voters, leading to a total of 3,40,000 voters who had voted due to the influence of a single social networking site. This is a significant finding, because it shows how effective a viral campaign on Facebook can be, on influencing and inducing people to participate in a something. This also shows how influential the behaviour of online peers can be. The group that was shown the list of friends who had voted produced a larger number of people who voted. The Micro-blogging website Twitter, has emerged as the best place to study online political reverberations because of its unique ‗hash-tag system‘ which makes identifying clusters of data with the same meaning, tone or message easier. The online world emulates the real world in all ways possible and the same holds true for spheres of political interest. In fact, the clashes between political fanatics become much more vicious online where it is not necessary to reveal one‘s identity to express or attack a statement. In the conclusion of an extensive study on the behaviour of Twitter users with strong political ideologies and clear idea of party orientation3, it is stated that ―politically motivated individuals provoke interaction by injecting partisan content into information streams whose primary audience consists of ideologically opposed users.‖ In other words, people using social media often resort to goading other members online into a clash of beliefs. Hence,
3 M. D. Conover, J. Ratkiewicz, M. Francisco, B. Gonc¸alves, A. Flammini & F. Menczer (2011). Political Polarization on Twitter. Retrieved from http://truthy.indiana.edu/site_media/pdfs/conover_icwsm2011_polarization.pdf
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it is but natural that political entities take advantage of this phenomenon and use it for their advantage. Election campaigns in most countries with internet access rely on internet activism, especially on social media to help gain the support of a larger vote bank. In India, Narendra Modi‘s successful Prime Ministerial campaign emulated the Barack Obama re-election campaign. Bharatiya Janata Party has been exceptionally clever at handling his public image through the medium of social media. Online presence of a political candidate is all the more important in the Indian context because of the mud-slinging prevalent in Indian politics. Clearing one‘s name goes a long way in influencing skeptical voters, as does tarnishing the image and reputation of another. Modi has employed some of India‘s richest IT geniuses, who amassed wealth during the ‗dotcom rush‘ in the 90s. Modi has been at the receiving end of backlash for his alleged involvement in the inducement of riots in Gujarat in 2002, which persists as a dark blot on his public image. Narendra Modi is not the only politician to join the social media bandwagon. In fact, most prominent political parties now have dedicated ‗IT Cells‘ to handle their public image online. The online vote bank in India is large, with the number of total Facebook users in India set to surpass that of America in 2014-15 4. The Election Commission in India seems to be floundering as it struggles to keep up with the advent of social media and newer forms of campaigning. For instance, election campaigning has to stop 48 hours before elections. Is the Election Commission expected to monitor every popular social media outlet for 48 hours, searching for tweets or Facebook posts that may amount to campaigning? With the amount of money being spent on online advertising and campaigning by political parties, the Election Commission in India has announced that it will be
4 Harjani, A. (2012, May 16). India Set to Overtake US as Facebook‘s Largest Market. Retrieved from http://www.cnbc.com/id/47441565 International Journal of Socio-Legal Research 149 Volume 1 | Issue 1 | ISSN- 2393-8250
closely monitoring online expenditure by candidates to see if the election code of conduct is followed.5 What differentiates social media from more traditional forms of media is the freedom it is accorded. The Italian case clearly highlights this. Italy is a country with strong democratic roots. However, most forms of traditional Italian media are state controlled. Widespread internet usage spread through Italy after 2000 and Italy has held three elections since then. In the 2013 elections, the two-party coalition that had been incumbent since 1994 was overthrown by a new comer party, the 5 Star Movement (M5S). The victory of the M5S party in the election has been directly correlated to increased broadband availability and the ability to express discontent and form like- minded groups online.6 The high speed communication the internet facilitates and social media takes advantage of, is a very important factor in deciding the elections in any democratic country.
Online Dissent
While the advent of social media has helped revolutionize how Governments are formed, it has helped bring down Governments as well. All the cases we have seen so far have been democracies. This is because of the direct causal relationship that can be observed in a situation where democratic elections are influenced by enthusiastic and voluble ‗netizens‘ (citizens of the online world) and virtual political campaigns. In countries without democracies, or flawed democracies, there always exists a growing discontent against the restrictions on freedom and personal rights. This dissent is expressed on social media forums and slowly gathers steam until it can snowball into a movement that affects millions of people in the real
5 Srivastava, Rajiv. (2013, October 10). Politicians' use of social media on Election Commission's scanner. Times of India. Retrieved from www.timesofindia.indiatimes.com 6 Campante, F, Durante, R, and Sobbrio F (2013), ―Politics 2.0.: The Multifaceted Effect of Broadband Internet on Political Participation‖, NBER Working Paper 19029. International Journal of Socio-Legal Research 150 Volume 1 | Issue 1 | ISSN- 2393-8250
world. Such a movement was observed in the Tahrir Square protests in Egypt, which helped overthrow a regime. Five people anonymously administered a Facebook page, communicating over Google‘s e-mail system (which doesn‘t allow outsiders to trace a mail back to the sender‘s IP address) effectively avoiding police detection. A Facebook Event page was created, calling for a protest movement on January 25th, which became the first day of the revolution. It showcased the astounding impact of a networking website, where increased mobilization was possible, where events and locations could be set up as decoys-only to be changed later at a moment‘s notice- where there were no boundaries limiting who could access the information being given out. With the backdrop of unemployment, corruption and human rights abuse, the website acted as a critical component in the facilitation of the movement in Egypt. It was found that over 52% of the participants in the Tahrir Square movement in Egypt which saw approximately 2 million people protesting to overthrow the regime of President Hosni Mubarak were there directly because of what they had heard on Facebook7. It was observed that even if other factors were controlled, social media greatly increased the likelihood of a protestor attending the first day of the protests.The introduction of Facebook in Arabic in 2009 helped step up the efforts to a higher level. The Tahrir Square protests were the result of a slow buildup of tension in both the real world and online. Without the involvement of social media, it is possible that the turnout at the protests may not have been large enough to draw global attention, like it did. The case of Anthony Weiner is a classic example of how social media can make or break a political career. Anthony Weiner is an American politician, whose political career was destroyed by a ‗sexting‘ (sexual texting) scandal
7 Tufekci, Z. and Wilson, C. (2012), Social Media and the Decision to Participate in Political Protest: Observations From Tahrir Square. Journal of Communication, 62: 363– 379. doi: 10.1111/j.1460-2466.2012.01629.x International Journal of Socio-Legal Research 151 Volume 1 | Issue 1 | ISSN- 2393-8250
after he admitted to having sent sexually explicit images to over 9 women via popular social networking sites. Weiner was a member of the New York City Council for 7 years, a congressional aide for 6 years and in running for Mayor of New York in 2005, before resigning from Congress in 2011 after it was found that he had been sending sexually explicit images to various women on Twitter. Weiner ran for Mayor again in 2013 but got caught in yet another sex scandal, and the uproar caused on the internet led to an extreme fall in support, with him getting merely 5% of the total votes in the mayoral primary. This goes on to show that in the virtual world, information is power. The WikiLeaks incident is common knowledge and an apt example of how powerful information can be in the online world. Spearheaded by Julian Assange, the movement aimed at leaking confidential and highly controversial Government documents across the world led to an outcry from Government authorities who were helpless, but gained sympathy from the citizens. Just as the scandal seemed to fade away from public memory, a former CIA employee, Edward Snowden released over 2,00,000 confidential documents that revealed that the NSA was spying on innocent citizens in an attempt to control terrorism. Interestingly, Snowden has been termed a hero by citizens and a traitor by the Government. Internet users value their privacy and are naturally not comfortable with revealing personal data which can be used to glean personal information.8 But privacy on the internet has become somewhat of a rare commodity, with authorities across the world increasingly resorting to restricting online freedom for various causes.
8 Bilogrevic, Igor; Jadliwala, Murtuza; Lam, Istvan; Aad, Imad, Ginzboorg, Philip; Niemi, Valtteri; Bindschaedler, Laurent; Hubaux, Jean-Pierre. Big Brother Knows Your Friends: On Privacy of Social Communities in Pervasive Networks. Pervasive Computing Lecture Notes in Computer Science, 2012, Vol. 7319, 370-387. doi: 10.1007/978-3-642-31205- 2_23 International Journal of Socio-Legal Research 152 Volume 1 | Issue 1 | ISSN- 2393-8250
This is owed to the fact that the Government and its citizens may not have the same conceptions of online freedom. Leaks of confidential documents are seen as the next step in the creation of a completely transparent system of governance, while the Government only sees such leaks as threat to national security. The important question here, however is whether the countries of the world are equipped to deal with evolving threats posed by people with talents like Snowden.
Global Policies on Internet
Censorship and propaganda serve as remarkable equipment to provide governments with ability to control the mindsets of the population on an incomprehensibly large scale. The former involves keeping under lock and key the materials that have the potential to incite rebellions among the people, while the latter makes use of available means of broadcasting information, to stimulate popular opinions that adhere to the ideas found desirable by the governments in power. The Middle Eastern region has been subjected to some of the most oppressive regimes, which have taken innumerable measures to clamp down on free speech over the internet. Turkmenistan, Syria, etc being Islamic countries, the question has been raised whether religious conservatism is a cause of the increasing degree of internet censorship. The 2013 World Freedom Press Index, published by Reporters Without borders9, ranked Iran as 174th out of 179 countries, while Syria was ranked 176 and Turkmenistan at 177. The indicator can be broken down by region, producing scores from 0 to 100, where 0 represents the country‘s total respect for media and press freedom. While Europe has a score of 17.5, the Middle East and North African region comes last, producing a score of 48.5, despite the revolutions of the Arab Springs.
9 Reporters Without Borders, World Press Freedom Index - 2013, 2013, available at: http://www.refworld.org/docid/5108f621e.html [accessed 23 July 2013] International Journal of Socio-Legal Research 153 Volume 1 | Issue 1 | ISSN- 2393-8250
While broadly examining the results, it may appear at face value that religious conservatism is the deciding factor for internet censorship. And while it may well have some bearing, it cannot be stated as the conclusive factor. Occupying the last position as 179th is Eritrea, which has a predominantly Islamic population, but also a considerable Christian populace. North Korea, at 178th position, has a mainly irreligious demographic, with a mix of religions including Buddhism and Christianity. Similarly, China has no nominal major religion, while Cuba has a Christian majority population. This stands as an indication that the connection between the presence of a particular religion and media censorship is, at best, a tenuous one. What then, is the cause of restriction of online freedom? Most of the countries in the Middle Eastern region have had decades of authoritarian and military rule, with the institution of democracy being introduced for the first time in decades, in countries like Tunisia and Libya. Political ideologies and institutions thus share a clear relationship with censorship of the media in a country. Russian President Putin is set to decide a radical new policy on isolating the Russian Internet from the ‗Global Internet‘ in case of an emergency10 in an attempt to decrease dependence on American technology. The irony of an internet that is not connected to world is seemingly lost on the Russian president. However, Russia will be far from the first nation to implement such an arguably draconian law. China operates the world‘s most sophisticated system of censorship (colloquially known as ‗The Great Firewall‘), with certain potentially sensitive search terms being blocked on the internet. One prominent example is that of Chen Guangcheng, a human rights activist who escaped house arrest in eastern China, to the US embassy
10 Harding, L. (2014). Putin considers plan to unplug Russia from the internet 'in an emergency'. [online] the Guardian. Available at: http://www.theguardian.com/world/2014/sep/19/vladimir-putin-plan-unplug-russia- internet-emergency-kremlin-moscow [Accessed 21 Sep. 2014]. International Journal of Socio-Legal Research 154 Volume 1 | Issue 1 | ISSN- 2393-8250
in Beijing. Several keywords related to his case have been listed as banned terms on the website Sina Weibo (similar to the micro-blogging site Twitter). This acts as an effective way of keeping information from being transferred through social media, leaving the vast majority of the population unaware of the development of the situation. A similar situation arose in the 2011 Chinese pro-democracy protests (named the Jasmine Revolution) where searches related to the word ‗jasmine‘ were blocked on Sina Weibo. Though the movement was seen as a significant part of the impact of the Arab Springs, tight control over the internet and media made mobilization and call for mass protests much more difficult during the Jasmine Revolution. When the Government controls the medium of free speech, Social media is rendered useless as an effective tool of communication, and is reduced to a mere means of entertainment. Chinese cyber-dissidents include Nobel peace prize winner Liu Xiaobo, dissident Liu Xianbin (sentenced to a 10- year term for inciting subversion of the government) and lawyer Ni Yulan, among others. Governmental interference of the internet is not limited to the Middle East and China alone. In a state where citizens are deprived of information pertaining to the rest of the world, propaganda dictates content being published and accessed over the internet. North Korea uses Red Star- its own custom-built operating system, and Kwangmyong, the country‘s state- run internet service provider. The system has been designed such that it is easy for the state to control and modify it as necessary. The internet is accessible only by the elites- academicians, scientists and politicians- while the general population has no access to the web. From 2007 to 2013 North Korea has been listed second last of the 177 countries (Eritrea occupying the last place) in the World Freedom Press Index (2013). Unsurprisingly, India ranks a measly 140th in the same Index, with increasing violence against journalists being cited as one of the main International Journal of Socio-Legal Research 155 Volume 1 | Issue 1 | ISSN- 2393-8250
reasons for this ranking. In the recent past, media restrictions in India have been on a steep incline. Erstwhile Indian Minister for Communications and Information Technology, Mr.Kapil Sibal claimed to support complete online freedom, while subtly slipping in hints about arbitrary censorship measures for the sake of ―communal harmony‖11. The Indian Legal Scenario
Laws in India regarding cybercrimes are still in a stage of infancy and are vague at their best. Section 66A of the Information Technology Act (2000), states ―Any person who sends, by means of a computer resource or a communication device, — … any information that is grossly offensive or has menacing character…. shall be punishable with imprisonment for a term which may extend to three years and with fine.‖12 The term ―grossly offensive‖ is open to interpretation by authorities. This poses a serious threat to the freedom of expression online, as seen in an incident in Mumbai where two young women were arrested for expressing their views about a deceased politician on Facebook, and booked under Section 66A of the Information Technology Act. Ironically, misuse of social media has not been restricted to citizens. Politicians have slowly begun to comprehend the immense power of a strong social media presence and have started to employ dubious methods to impress the online world and make them heard. In a recent undercover operation conducted by a little known News Corporation, it was found that various IT companies offered to help boost the public image of anyone
11 Sathe, G., & Agrawal, S. (2013, March 21).Internet governance is an oxymoron, says Kapil Sibal. [online] Retrieved from: http://www.livemint.com/Politics/Z7mTX6YrUDdH6lEs15im2L/Kapil-Sibal-allays-fears- on-Internet-censorship.html [Accessed: 30 Nov 2013]. 12 Information Technology Act (2000). Amended (2008). International Journal of Socio-Legal Research 156 Volume 1 | Issue 1 | ISSN- 2393-8250
willing to discreetly pay cash while maligning opponents at the same time.13 Services offered included: 1. Generation of fake followers on various social networking sites, such as Facebook, Twitter and BlogSpot; 2. Deletion of negative comments/posts; 3. Negative publicity against opponents of the client; 4. Creation of fake profiles with Muslim names to show support of the Muslim community
This leads to an important question: Should social media be accorded complete and unbridled freedom, without any form of policing or control? Ours is a country that has strong partisan factors deeply entrenched in religious beliefs and notions. Social media platforms become an outlet for pent up frustration in those who may not exhibit proper restraint of thought and provoke irate responses. In the case of the recent Muzaffarnagar communal clashes in Uttar Pradesh, a lawyer, Shehzad Poonawalla urged the National Human Rights Commission to direct the department of telecommunications to screen posts on social media that were inciting violence. Poonawalla stated that his objective behind filing a petition was to highlight how social media was being misused by bigoted persons with separatist intentions.14 The Muzaffarnagar clashes were mainly attributed to viral videos on YouTube, even though the authenticity of that claim is debatable.
13 Cobrapost.(2013, November 28). Cobrapost represents ‗Operation Blue Virus‘: Press Release. Cobrapost. Retrieved from http://www.cobrapost.com/index.php/news- detail?nid=4024&cid=23 14 Tehelka. Muzaffarnagar Riots: Complaint Lodged Against Inflammatory Content On Social Media.(2013, September 9). Tehelka. Retrieved from http://www.tehelka.com/muzaffarnagar-riots-complaint-lodged-against-inflammatory- content-on-social-media/ (Visited on 29 November 2013).
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A large section of our population is still illiterate and rumors can run rife and very often, violence is not the only result. Polio campaigns failed in Muslim communities in 2006 because of a rumor that the polio vaccine resulted in sterilization of the baby. The lack of an established regulatory body for the Internet and other forms of communication means the Police and Executive are given unbridled authority in implementation of the IT Act 2000 with hardly any judicial oversight. The inadequacy of the IT Act to properly regulate a global behemoth like the Internet is nothing short of a hindrance in India‘s path as a growing economy and superpower. As trade shifts to the online realm, with companies like Flipkart and Amazon now dealing in billions of dollars, the internet is no longer a plaything for youngsters. The massive influence wielded by the virtual world on the real is no laughing matter. As the world scrambles to check the influence of ISIS militants who have been converting men and women across the world using nothing but social media.
Conclusion
The ability to move considerable amounts of information across vast distances within a negligible period of time has formed, over the course of the previous decades, the bedrock of our contemporary society. Lauded as the greatest communication innovation this century has seen, abridgments to the open freelance atmosphere of the Internet have been frequently attempted by various governments, with different objectives as regards the requirement of the degree and extent of censorship of the virtual world. The roots of the internet lie in the function of its predecessor, which had been designed with the intent to ensure communication in the event of a nuclear attack, by compensating for ruined servers and telephone lines. The very crux of the Internet lies in its ability to overcome such barriers. Irrespective of the imposition of heavy censorship, it is inevitable that communication will not be halted permanently. International Journal of Socio-Legal Research 158 Volume 1 | Issue 1 | ISSN- 2393-8250
It is hard not to resort to rhetoric while elucidating the massive role that social media plays in our daily life. The internet is a tool which facilitates, amongst many other things, interpersonal communication and exchange of ideas, views and theories. It is this feature that makes the internet what it is. To completely curtail freedom of expression in social media is to end social media as we know it. However, a virtual world without any form of regulatory authority whatsoever would be no different from the real world without any restrictions imposed on people, for the safety of the general public. Regulation is as necessary on the internet as it is on any other commercial venue. E-commerce websites all require some minimal regulation in order to function effectively. Original works published on the internet have no reason to be exempt from the principles of intellectual property law and copyright. The sharing of explicit images, child pornography and other illegal content has to be monitored on the internet, as it would be in real life. The militant organization ISIS that thrives on ideological conversion has been quick to adapt to social media requirements. It has been effectively using social media sites and video games to capture the imagination of vulnerable youngsters and teenagers in an unanticipated manner15. The media wing of ISIS works eerily like a corporate Public Relations department as it identifies the target audience and uses the most effective means of communication, including but not limited to People from across the world have fallen prey to this ideological warfare and ‗joined‘ the cause of Jihad. This is a classic example of how uncensored content on the internet can poison minds and incite violence if properly executed. These factors demand some minimal regulatory body to intervene. While the principle of freedom of expression has to be kept in mind, it is also
15 Shamah, D. (2014). Video games, Twitter tricks: How ISIS pulls in the kids. [online] The Times of Israel. Available at: http://www.timesofisrael.com/video-games-twitter-tricks- how-isis-pulls-in-the-kids-2/ [Accessed 21 Sep. 2014]. International Journal of Socio-Legal Research 159 Volume 1 | Issue 1 | ISSN- 2393-8250
critical that one consider the necessity of monitoring hate speech and bigoted opinions, the expression of which has become considerably easier with the widespread use of the worldwide web. There is a vital distinction between censorship and monitoring of offensive or obscene content. Where one seeks to protect the sentiments of a particular group being targeted, the other involves prohibiting content which may show a political group in an unfavorable light, or act in any way as an impetus to starting a rebel movement. It is this censorship that violates the basic freedom of the people, by presenting to them a distorted view of the truth. The effect of communication via the internet may have proved to be a boon in many cases, but its detrimental effects under those circumstances cannot be overlooked. As a consequence of the Egyptian revolutions, totalitarian regimes in the region acted swiftly to block the free flow of information through the web, using several means, such as slowing down the internet speed, blocking certain topics or websites which were deemed to be controversial, as well as carrying out surveillance and monitoring internet usage. There were also instances of deaths of activists, such as Zakariya Rashid Hassan, who died in custody in Bahrain, a week after being arrested for disseminating false news, and calling for the overthrow of the government on online forums. Politically motivated surveillance, accompanied by draconian punishments meted out to bloggers and activists pose considerable danger to freedom of an individual on the internet. The importance of government intervention, however, is not to be overlooked or underestimated. Without a regulatory authority, the bigoted and the ignorant would find an ideal platform to propound their views, alienating separate communities on a superficial basis. There is a distinction drawn here between activities that are immoral, and ones that are illegal. While conceptions of immorality are open to subjective interpretations and definitions tend to differ, illegality of a subject remains relatively constant with time. Given the undeniable advent of the internet throughout the world, International Journal of Socio-Legal Research 160 Volume 1 | Issue 1 | ISSN- 2393-8250
it is inevitable that governments would attempt to impose their own views to the rest of the society through this platform. This may go beyond a mere expression of opinion, and lead to imposition of several regulations, which would render the internet, as a tool of mass communication and a place of freedom of speech, very early nonexistent. It becomes critical to rethink various approaches to censorship, and to allow the web to expand and grow of its accord. After all, the Internet is a virtual world that emulates the real world in more ways than one. International Journal of Socio-Legal Research 161 Volume 1 | Issue 1 | ISSN- 2393-8250
INTELLECTUAL PROPERTY RIGHTS VERSUS RIGHT TO HEALTH : INDIA’S STAND
A.Ashwin Kumar*
Niharika Kumari**
Introduction In India, intellectual property laws are made in such a way that, it strikes a perfect balance between the public interest and interest of the right owners. The Indian constitution in its Article 300A, guarantees that no person shall be deprived of property, save by authority of law. The purview of this article also extends to the intellectual property rights. Blackstone in his commentaries says that, ―When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases and any attempt to vary the disposition he has made of it appears to be an invasion of that right.‖1 True his words, India through its legislation, have guaranteed every citizen, the rights over his mind‘s product.
However, every right has its own limit. A person‘s right ceases to exist, when it infringes the right of another person. Therefore rights cannot be exclusive at all circumstances. Even fundamental rights in the constitution have its own exceptions. Similarly, the intellectual property rights are given exclusively unless it is against the interest of the public.
With regard to the patents, the World Intellectual Property Organization defines it as an exclusive right granted for an invention, which is
* III year student, School of Law, Christ University, Bangalore ** III year student, School of Law, Christ University, Bangalore 1Wheaton v. Peters www.bc.edu/bc_org/avp/cas/comm/free.../wheaton.html (last access October 12, 2014). International Journal of Socio-Legal Research 162 Volume 1 | Issue 1 | ISSN- 2393-8250
a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. In consonance with this, the Indian Patents Act provides for an exclusive right to the patentees over their product subject to few conditions. An invention should be novel, non-obvious and useful in order to get patented. The granting of patents has various positive as well as negative implications in India. Since the implementation of TRIPS agreement, the no of patents in India has drastically increased. According to a report of Global intellectual Property center - Annual inflows of FDI to India have increased significantly since the early 1980s. The national expenditure on Research and Development (R&D) in India increased from Rs. 7483.88 crores, in 1995-96 to Rs. 37777 crores in 2007-08.
Inspite of all these advantages, there are certain chances for misuse of the laws related to patent rights. One such attempt was made by few pharmaceutical companies for Ever greening its patent of drugs. Patent ever- greening refers to a strategy of obtaining multiple patents that covers various aspects of the same product. Even though it is not a formal concept of patent law, patent owners utilize this process to extend their monopoly privileges. Patents give exclusive rights to the companies to manufacture and sell a particular product. It is a fundamental principle of patent law that a patent monopoly can be granted inventions that are new, non-obvious and useful and that have an industrial application. Often times, the pharma industry change their patented drug slightly by converting it to a salt, adding a ester or ether, making an isomer that does not in any way alter the efficacy or biosorbtion of the drug. This new form of the same chemical is now patented. This process called ever greening is exploited by pharma International Journal of Socio-Legal Research 163 Volume 1 | Issue 1 | ISSN- 2393-8250
companies to hold exclusive rights to manufacturing the drug several years after the original patent has expired.2
Some examples include seeking subsequent patents on derivatives of existing drugs, altering the mixture of isomers, identifying compounds with the same molecular formula but different structural formulas, or patenting methods of administration of an existing drug.
Ever greening strategies usually followed by the pharmaceutical industries involve:
1. Redundant extensions and creations of ‗next generation drugs‘ which result in superfluous variation to a product and then patenting it as a new application.
2. Prescription to over-the-counter (OTC) switch.
3. Exclusive partnerships with cream of generic drug players in the market prior to drug patent expiry thus significantly enhancing the brand value and interim earning royalties on the product.
4. Defensive pricing strategies practice wherein the innovator companies decrease the price of the product in line with the generic players for healthy competition and
5. Establishment of subsidiary units by respective innovator companies in generic domain before the advent of rival generic players.3
However the Indian Patents Act of 2005 has a unique provision which expressly serves has a check to the attempts made by the pharmaceutical
2 Athulaprabha Murthi, Compulsory Licensing – does it affect the pharma companies?, available at : http://www.indiabioscience.org/articles/compulsory-licensing-%E2%80%93- does-it-affect-pharma-companies (Last access : 12th October, 2014). 3 Drug Patent Evergreening: An Overview, Available at: http://blog.mmsholdings.com/blog/bid/86991/Drug-Patent-Evergreening-An-Overview , (last access : 12 Oct, 2014). International Journal of Socio-Legal Research 164 Volume 1 | Issue 1 | ISSN- 2393-8250
companies for ever greening. The section 3(d) clearly states that, unless a new form of an existing substance depicted increased efficacy, it was not patentable. If it does demonstrate increased efficacy, then it is treated as an altogether ―new substance‖. The ―mere new use‖ of a known compound cannot be patented. The very objective of having Section 3(d) as an amendment clause to Indian Patent Act was to prevent the ―ever-greening‖ of patent. Section 3(d) is as follows:
―the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant.
Explanation.—For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be the same substance, unless they differ significantly in properties with regard to efficacy.‖
In the famous case of Novartis4, when a pharmaceutical company tried to patent an anti-cancer drug, the court refused to give the rights on the grounds that there is no substantiate increase in ―efficacy‖. The hon‘ble Supreme Court wisely interpreted the meaning of ―efficacy‖ in Section 3(d). It said that the new form of a drug must demonstrate an improvement in its therapeutic effect or curative property as compared to the old form in order to secure a patent. Novartis offered evidence that the beta crystalline form differed regarding certain properties relating to production and storage (e.g., heat stability). The Court held that these properties may be important from
4 Novartis AG vs. Union of India (UOI) and Ors, AIR2013SC1311 International Journal of Socio-Legal Research 165 Volume 1 | Issue 1 | ISSN- 2393-8250
storage point of view, but would not be relevant to show ―enhanced therapeutic efficacy‖. .
When the same petitioner moved the hon‘ble High Court of Madras, It was contended that the section 3(d) is unconstitutional and against the policies of TRIPS agreement. The hon‘ble High Court of Madras while holding that section 3(d) is constitutional, observed that the said section is in consonance with TRIPS agreement by virtue of the Article 4 and 5 of the Doha declaration, which says ―The TRIPS Agreement does not and should not prevent members from taking measures to protect public health. … [W]e affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO Members' right to protect public health and, in particular, to promote access to medicines for all.‖
Not only India, many developed countries around the world has laws prohibiting the practice of Evergreening. Australian law includes safeguards against evergreening, by introducing penalties for such activities in Section 26C and 26D of Australia Patent Act 1990 and a mechanism for damages to be paid to the government for proven ever greening practices.5
Article 18.9.4 of the Republic of Korea-United States Free Trade Agreement (KORUSFTA) has been specifically drafted to permit the establishment of pharmaceutical patent ―anti-evergreening‖ oversight agency.6
As rightly said by the Hon‘ble Supreme Court, There is in fact nothing new about such a standard. This was the approach followed by the US Patent Office up until a case decided by the Court of Appeals for the Federal Circuit, In re Brana, in 1995. Today, the Patent Office and Federal Circuit
5 Drug Patent Evergreening: An Overview, Available at : http://blog.mmsholdings.com/blog/bid/86991/Drug-Patent-Evergreening-An-Overview , (last access : 12 Oct, 2014). 6 ibid International Journal of Socio-Legal Research 166 Volume 1 | Issue 1 | ISSN- 2393-8250
will approve patents for very minor modifications, supporting the practice known as ―evergreening‖. This is a very expensive proposition for US consumers because it allows the manufacturers to market and sell higher- priced patent-protected versions of their popular drugs.7
It is pertinent to say that, no democratic country will act against the interest of the public. In countries like, US, the people‘s affordability has increased drastically in the late 90‘s which paved way for the laws supporting ever greening. Now every single modification in the drug is patented, hence the amount of patented products is becoming innumerable. For a developing country like India, it may take few decades to shift to that fashion. In the meanwhile, the public health of the vulnerable, poor people should be given more concern than anything else. But again there‘s a point to be noted that, if all medicines were to be made generic under the pretext of access to medicines then ultimately at a particular time point there will be no innovation, subsequent to which the sufferers will be people at large. Hence the ideal situation would be to strike a perfect balance between the public and private interests as mentioned above. It is also pertinent to say that, The U.S model is concerned about the quantity of patents their citizens hold, unlike India, where quality is given more weight.8
Compulsory licensing:
This concern about the public health is the main reason behind another land mark Judgment in Indian history of intellectual property laws. The decision in the case of Natco v. Bayor, which granted the first ever compulsory
7Frederick Abbott , The Judgment In Novartis v. India: What The Supreme Court Of India Said, Available at : http://www.ip-watch.org/2013/04/04/the-judgment-in-novartis-v-india- what-the-supreme-court-of-india-said/ (Last access : 13 October, 2014 8 Dr. Dhanalakshmi Iyer, Analysis of Section 3(d) of Indian Patent Act, Available at : http://www.ipfrontline.com/depts/article.aspx?id=26756&deptid=4 (Last access : 13 October, 2014)
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license in India, had made global impact due to the unique stance taken by the court. ,
IP laws in India have long made provision for the grant of a compulsory license. The section 84 of the Patents Act, 1970 (Patents Act), is the provision under Indian patent law that provides for the issue of a compulsory license‘.
According to the World Trade Organization, Compulsory licensing is when a government allows someone else to produce the patented product or process without the consent of the patent owner. It is one of the flexibilities on patent protection included in the WTO‘s agreement on intellectual property — the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement. Under the Indian Patents Act, a compulsory licence may be granted after the expiration of three years of the grant of a patent, on any of the following grounds:9
I. That the reasonable requirements of the public with respect to the patented invention have not been satisfied; or II. That the patented invention is not available to the public at a reasonably affordable price; or III. That the patented invention is not worked in the territory of India
In the case of Natco v. Bayor10, the appellant applied for a compulsory license for selling the respondent‘s patented drug named Nexavar on the grounds that, the patentee has failed to meet the requirements of the public
9 Shan Kohli ,A Small Step for Natco, a Giant Leap for Generic Drugs: India‘s first Compulsory Licensing Application Filed, Available at : http://spicyip.com/2011/08/small- step-for-natco-giant-leap-for.html ( Last access : 14 October , 2014) 10 Bayer Corporation v. Natco Pharma Ltd., Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/045-2013.html (Last access : 13 October 2014)
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and it is not available to the people at a reasonably affordable price. The hon‘ble IPAB observed that, Nexavar was priced at 280,000 per month, which is obviously not available to the public at a reasonable cost and neither is it available to all patients who need the drug. Therefore, the court held that, NATCO will now manufacture and sell the same drug at Rs 8800 per month and will also pay a royalty of 6% of its sales to Bayor.
A lot of countries have issued compulsory licenses for anti-competitive misuse of IPRs by companies. According to a survey around 53 countries in the world have given compulsory licenses after the comeuppance of TRIPS agreement. Brazil, Thailand, Malaysia, South Africa, Kenya, Ecuador etc. have issued compulsory licenses over the patent rights of AIDS drugs and cancer drugs11. Once again in this case, majority of the developing countries were in support of the grant of compulsory licensing while countries like U.S are constantly criticizing this concept on the grounds that, it is would decrease the incentive for innovators to invent. This argument can be regarded as absolutely baseless. According to the TRIPS agreement) Normally the person or company applying for a license must have tried to negotiate a voluntary license with the patent holder on reasonable commercial terms. Only if that fails compulsory license can be issued and it is also necessary that the original patentee should receive necessary remuneration. From a combined reading of TRIPS agreement and section 84 of Indian patents Act, makes it abundantly clear that the compulsory license are granted only at rare circumstances when its largely demanded by the public interest.
11 Aayush Sharma, Can Compulsory License (CL) Be A Legal Tool For Pharmaceutical Industry? ‗An Overview Of The CL Under The Indian Pharma Industry, Available at : http://www.mondaq.com/india/x/310726/Patent/Can+Compulsory+License+Cl+Be+A+Leg al+Tool+For+Pharmaceutical+Industry+An+Overview+Of+The+Cl+Under+The+Indian+P harma+Industry,(Last access : 13th October, 2014 ) International Journal of Socio-Legal Research 169 Volume 1 | Issue 1 | ISSN- 2393-8250
Patents versus patients: right to property versus right to health
Both the concepts of compulsory licensing and ever greening give rise to a debate between the Public interest and the interest of pharmaceutical companies. In other words, it is the debate between, patents versus patients. The patent cliff is having a devastating impact on revenues as some of the biggest earning drugs lose out to competitive generic companies in India and other developing countries. This, and the pervading economic gloom, is putting a squeeze on finances. With drugs typically taking 12 to 15 years to develop, costing perhaps a billion pounds – and with no guarantee of success – beleaguered pharmaceutical companies are cutting back on expensive and time-consuming R&D and diversifying into more gainful areas. Without IP rights to reward innovation and provide some measure of security in these tough times, pipelines may run dry.12
However, pharma companies are not the only ones to suffer from this austerity. Governments are under increasing pressure to provide more cost- effective and accessible health care, particularly in developing countries like India with poor populations. In such circumstances, they can sometimes decide to override IP in favour of encouraging competition and driving down price.13
This debate can also be regarded as the right to property versus the right to health. Here the right to property denotes the right of a patent owner to enjoy all benefits arising out of it at the cost of the public health; while the
12 Nick Beckett, India's patents versus India's patients Available at : http://www.pmlive.com/pharma_news/indias_patents_versus_indias_patients_459660 (Last access : 13th October, 2014 ) 13 Id. International Journal of Socio-Legal Research 170 Volume 1 | Issue 1 | ISSN- 2393-8250
right to health corresponds to the poor needy people‘s right to live at the cost of the interest of patent owner. 14
India suffers from twin problems of high prices of patented medicines and low access to generics i.e., non patented medicines. Due to variety of reasons including poor public health facilities, and inadequate insurance facilities, drug access is very low in India.
Article 21 casts an obligation on the State to safeguard the right to life of every person, preservation of human life being of paramount importance. The obligation of the State to ensure the creation and the sustaining of conditions congenial to good health is cast by the Constitutional directives contained in Articles 39(e),(f) , 42 and 47 in part IV of the Constitution of India. Under Article 47, the State shall regard the raising of the level of nutrition and standard of living of its people and improvement of public health as among its primary duties.15
In the case of Vincent Panikurlangara V. Union of India16,‖ Article 21 of the Constitution guarantees right to life and this Court have interpreted the guarantee to cover a life with normal amenities ensuring good living which include medical attention, life free from diseases and longevity up to normal expectations.‖
The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of West Bengal & ors17, while widening the scope of art 21 and the government‘s responsibility to provide medical aid to every person in the country, held that in a welfare state, the primary duty of the government is
14 Id. 15 sudip chaudhari,The larger implications of the Novartis Glivec judgment, Available at:http://infochangeindia.org/public-health/analysis/the-larger-implications-of-the-novartis- glivec-judgment.html(Last access: 14th October, 2014) 16 1997 AIR 990 17 AIR1996 SC 2426 International Journal of Socio-Legal Research 171 Volume 1 | Issue 1 | ISSN- 2393-8250
to secure the welfare of the people. Providing adequate medical facilities for the people is an obligation undertaken by the government in a welfare state. The government discharges this obligation by providing medical care to the persons seeking to avail of those facilities. Article 21 imposes an obligation on the state to safeguard the right to life of every person. Preservation of human life is thus of paramount importance.
In the landmark judgement of CESC Ltd. vs. Subash Chandra Bose18, the Supreme Court relied on international instruments and concluded that right to health is a fundamental right. It went further and observed that health is not merely absence of sickness: ―The term health implies more than an absence of sickness. Medical care and health facilities not only protect against sickness but also ensure stable manpower for economic development. Facilities of health and medical care generate devotion and dedication to give the workers‘ best, physically as well as mentally, in productivity. It enables the worker to enjoy the fruit of his labor, to keep him physically fit and mentally alert for leading a successful economic, social and cultural life. The medical facilities are, therefore, part of social security and like gilt edged security, it would yield immediate return in the increased production or at any rate reduce absenteeism on grounds of sickness, etc. On perusal of these judicial opinions, it is very clear that, the right to health has become an integral part of the Article 21 of Constitution. Affordable drugs are an integral component of universal health care and accessible health care in this view, when there is a conflict between the patentee‘s rights and the public‘s right to live; it is obvious that the latter will prevail over the former.
18 1992 AIR 573 International Journal of Socio-Legal Research 172 Volume 1 | Issue 1 | ISSN- 2393-8250
Conclusion India's efforts to preserve policy space so as to ensure access to medicines for all, both in India and in developing countries more broadly, is under threat because of an obscure provision that the EU is seeking in its pending trade negotiations with India. Under the so-called investment clause, foreign IP investors, like Novartis and Bayer, will be given rights to sue the Indian government directly whenever their expectations of profit are frustrated by government decisions and policies
Threats like this used to be theoretical, but the theoretical has now become real. In November of 2012, Eli Lilly sued the government of Canada for $100 million under NAFTA's investment chapter because Canada had invalidated a patent on a medicine used to treatment attention deficit disorders. The patent was invalidated pursuant to requirements in Canadian patent law that an applicant must satisfy the promise of utility (in India called industrial applicability) by disclosing evidence pointing to a claimed benefit of the medical innovation.19
If Eli Lilly can file such a suit against Canada, with respect to its decision to revoke a patent, what would prevent Novartis and Bayer to file claims against India because it has adopted strong protections against ever greening in section 3(d) of its Patents Act and allowed compulsory licensing in section 84? In fact, these are exactly the kinds of claims that few major international corporate law firms are urging companies to file under existing investment clauses that India has ill-advisedly entered into.20
19 BROOK K. BAKER,A patent victory under threat, Available at: http://www.thehindubusinessline.com/opinion/a-patent-victory-under- threat/article4610739.ece, (last access : 14th October, 2014) 20 Id. International Journal of Socio-Legal Research 173 Volume 1 | Issue 1 | ISSN- 2393-8250
While these threatening factors are trying to discourage India‘s attempts to balance IPR and Right to Health, India is staying importunate in this issue. The concerns of the developed nations are not same as that of India. For a developing nation like India, Considering the vast difference between the economic statuses among people, it is impossible to keep the IPR policies in par with the highly developed nations. However, India in recent days have done few attempts to adopt cherishable policies followed in foreign nations. A panel headed by Justice Prabha sridevan, has been formed recently by the commerce and industry ministry to draft the National Intellectual property (IPRs) policy. The panel will identify areas in IPRs where study needs to be conducted and furnish recommendations in this regard. These things show that, India is honestly trying to balance between Indian needs and international obligations. International Journal of Socio-Legal Research 174 Volume 1 | Issue 1 | ISSN- 2393-8250
DOCTRINE OF STATE ACTION AND DEFINITION OF STATE AS UNDER ART.12 OF THE CONSTITUTION Roopal Tripathi*
Introduction
The Doctrine of State Action is the legal principal which was added in the 14th Amendment of the Constitution and it applies only to the state government and the local government, it does not include private entities in its sphere. Under the state action private parties outside of government do not comply with procedural or substantive due process under the Fourteenth Amendment. For example, the first amendment does not apply to private schools because they are not part of state or local government. If we see the historical framed Constitution, one can easily draw a conclusion that it was considered as a remedy for any similar private infringements lay in the common law of the time, as it was believed that the common law embodied natural law principles.1 It is agreed that the Doctrine of State Action protects the right of an individual liberty ―preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.‖2 action applies to the substantive duo and the procedural due process concept The State Action Doctrine applies only to the State Actors that is Government and their subsidiaries and including the local bodies like Attorney General, Governor and some other state actors for example; one cannot sue the Honda Motor Company Ltd. for violating the substantive duo process, for suing the such incorporation which does not come under ‗State‘ there is a
* Roopal Tripathi,4th year Student, Symbiosis Law School, NOIDA 1 Erwin Chemerinsky, ― Rethinking State Action”, (1985) 80 Nw. U. L. Rev. 502 at 511. 2 Lugar v. Edmondson Oil Co., 457 US 992 (1982).
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different set of provisions which apply only to them but in order to prevail on a fourteenth Amendment claim, one must be suing the Government. In the example of campus speech where ―civility codes‖ an infringement on the freedom of speech? It was held that the Stanford University being a private university so the rules of university is such that it is not bound by 1st and 14th Amendment whereas, Ohio University being state University OSU so the rules of 1st and 14th applies to it and whether ‗civility code‘ is applicable to the ‗state university‘ is a serious matter.
State of the Law The doctrine of the sate action is based on the principle of the federalism and because of this the doctrine shields the sovereign activities of the state itself, including the actions of the state legislature, governor or a state supreme court provided they are acting in the sovereign entities of the Constitution. The doctrine of State Action even extends to the lower level entities as well, licensing board and State regulatory commission provided that these entities are acting within the delegation of authority from the government and independent and with the sovereignty. To assert the state action defence, the lower level entities must prove that they used the delegation of authorities for the common interests of the state rather than for their own benefit, they can prove by showing the alleged anticompetitive state regulatory conduct:- Is in conformity with a ―clearly articulated‖ state policy.3 It has been actively supervised by the state.4
In the first element, the word ―clear articulation‖ means that these entities of the state may use anticompetitive mechanisms only if those mechanisms operate because of a deliberate and intended state policy. Now the question
3 Erwin Chemerinsky, ―Rethinking State Action”, (1985) 80 Nw. U. L. Rev. 502. 4 Asheesh Agarwal, ―State Action Task Force‖, 2003 Chapter 1, pg. 8 International Journal of Socio-Legal Research 176 Volume 1 | Issue 1 | ISSN- 2393-8250
is whether the State as sovereign clearly intends to displace competition in a particular field with regulatory structure? In Southern Motor Carriers, the Court find out that the State intended to displace competition because the legislature created the regulatory schemes to set trucking rates. In other cases, the Court pointed on the ―foreseeability‖ of the articulated mechanisms. In Omni, the State statute let cities regulate the constructions of building and structures. The city used this statute to restrict billboards. The Court held that the by giving authority to the city to restrict the regulation of billboards the State has articulated the policy of restricting the billboard competition. The second element, ―active supervision‖ it ensures that the entities are acting pursuant to the state policy and not according to their own private interest, and the State‘s regulatory programme actually implements a positive regulatory policy. To evaluate this element, Court must determine ―whether the State has exercised the sufficient independent judgement and control so that the details‖ of the restraint ―have been established as a product of deliberate intervention, not simply by agreement among the private parties.‖ In general courts require that there should be active supervision of entities when there is risk that the challenged conduct results from the private actors pursuing their own interests rather than acting on the interests of the state policy.
How Doctrine of State Action came in force in the Fourteenth Amendment of the American Constitution? The Doctrine of the State Action was first enunciated in the Civil Rights Cases5 whereby, it has been said that the action which has been reserved by the Fourteenth Amendment is the only action which is fairly said to be for
5 (109) US 3 (1883) International Journal of Socio-Legal Research 177 Volume 1 | Issue 1 | ISSN- 2393-8250
the States. ―The Amendment erects no shield against the private merely private-conduct, however discriminately or wrongful.‖6
State Officers The first interpretation of the State in the Fourteenth Amendment was given in Ex-parte Virginia;7 it was assumed that the State acts through its Legislative, Executive and the Judicial Authorities. This clearly mentions that the:- Would be clearly violative of Constitutional protections. Executive agents carrying out legislative command would also fall foul of the Constitutional protection. when the judiciary, either fails to afford due process or when the judges lay down Common-law; its action can be violative of the Constitutional protection.
Hence, contrary to the Ex-parte Virginia case, where the legislature has enacted the statue that provided for non-discrimination, in this case the Court has found out that the requirements of the State Action is not met when the legislature had provided for constitutional law.8 However subsequent judgment was not followed in the Arrowsmith. The Arrowsmith judgment was finally repudiated in Home Telephone and Telegraphic Co. vs. Los Angeles wherein the Court relying on the principal-agent doctrine,
6 A Constitutional Forecast: Demise of the ―State Action‖ Limit on the Equal Protection Guarantee‖, (1966) 66 Colum L. Rev. 855 7 100 US 310. The question that arose for consideration in this case was whether the action of a county judge in discriminating against colour persons in making selections to the grand and petit jury was violated the Fourteenth Amendment. Also See, Virginia v. Rives, 100 US 313, the case involved the constitutionality of a murder conviction of a black person in a Virginia county Court by an all-white jury. 8 Virginia v. Rives, 100 US 313, International Journal of Socio-Legal Research 178 Volume 1 | Issue 1 | ISSN- 2393-8250
observed that a state officer exercising authority is stopped from denying the validity of that authority. ―The Court also observed that the provisions of the Fourteenth Amendment have been addressed to every person, whether natural or juridical, who is repository of State Power.‖9
JUSTIFICATIONS OF THE STATE ACTION REQUIREMENT On analysing the historical and philosophical thoughts in which Constitution of the U.S.A is based, one is easily drawn to the conclusion that the framers of the Constitution insisted more on the State Action Doctrine because it was believed that he remedy for any similar private infringement lay in the common law of the time, as it was believed that the common law embodied the natural law principles10. In the Civil Rights Cases, Bradley J. observed that: ―the wrongful act of an individual unsupported by any such (State) authority is simply a private wrong….and presumably by vindicated by resort to the laws of the Sate for redress.‖11 Is has been said that the Doctrine of State Action protects and preserves the liberty of an individual by limiting the reach of federal law and federal judicial power.12 But in advancing such suggestion one is prioritising the right of the violator than those of the victims, Moreover; the judgement is mainly based on the identity of the state actors rather on the merits of the claims.13
9 Memphis v. Cumberland Telephone & Telegraph Co., 218 US 624. 10 Erwin Chemerinsky, ―Rethinking State Action”, (1985) 80 Nw. U. L. Rev. 502 at 511; Corwin, ―The ―Higher‖ Law Background of American Constitutional Law”, (1928) 42 Harv. L. Rev. 149 at 179. 11 The Majority in this case held that in the absence of hostile state law or state proceedings, Congress could not enact a law providing for positive rights under the Fourteenth Amendment. 12 Lugar v. Edmondson Oil Co., 457 US 992 (1982). 13 Louis Henkin, ―Shelley v. Kraemer: Notes for a Revised Opinion‖, (1962) 110 U Pa L Rev 473. International Journal of Socio-Legal Research 179 Volume 1 | Issue 1 | ISSN- 2393-8250
Additionally, it has been argued that if private action were made subject to Constitutional Law, it would concern every tort or crime - which inevitably involve deprivation of life and liberty, or property.14 However, this claim ignores that if the criminal laws or the law of tort provides for adequate remedies, then there is no denial of due process.15 One is often exposed to the rather unconvincing argument that removing the State Action Doctrine would open the flood gates of litigation in the various Constitutional Courts, to which Responding to the flood gates argument, Beloff observes ―it is an argument which intellectually has little to commend it, and pragmatically is usually shown to be ill-founded. For it is often the case that, once the courts have shown the willingness to intervene, the standards of the bodies at risk of their intervention tend to improve.‖16 Interestingly, the Indian Supreme Court, one of the most litigation burdened Courts in the world17,has scoffed this argument, observing that the Courts cannot shun their responsibility in anticipation of likely repercussions.18
STATE AGENCIES & INSTRUMENTALITIES In this, it has been inquired whether the private activities come under the ―State Action‖, A major criticism of the variety of cases that have dealt with this situation is that they did not clearly explicate the basis of their decision. However, the
14 Goodman, ―Prof. Brest on State Action and Liberal Theory-A Postscript to Prof. Stone”, (1982) 130 U. Pa. L. Rev. 1331. 15 Ibid. 16 Michael I Beloff ,―Pitch, Pool, Rink, Court? Judicial Review in the Sporting World‖ (1989) Public Law 95; See Also Finnigan v. New Zealand Rugby Football Union Inc. [1985] 2 NZLR 159. 17 As per the records of the Supreme Court of India, as of August 2008, there were 48,838 matters pending with the Supreme Court,
cases which recorded a finding of State Action may be classified into three categories – (a) Leasing of property; (b) Supplying of aid; (c) Granting of some power or privilege by the Government.
In Harris v. City of St. Louis, it was held that that temporary leasing of a Municipal auditorium would not be sufficient to justify a finding of State Action. The Missouri Court of Appeals observed that the City had not discriminated in the matter of leasing out the property, and it is within the legal rights of the lessee as to what he may do with the place he has rented for the night or the week, then those admitted only on his terms cannot say they have been legally hurt. They have no ground for legal complaint because of such action.19 In Kern v. City Commissioners of City of Newton, 20 the Supreme Court of Kansas, however, held that the leasing of a municipal pool did not exonerate the State from its obligations under the State and Federal Constitutions. Similarly in Culver et al. v. City of Warren et al, 21 it was observed that when a Municipal swimming pool was leased to a private corporation, ―the corporation, not for profit, was a mere agent or instrumentality through which the City of Warren operated the swimming pool, at least to the extent that the rights of its citizens to use the pool were affected.‖ Importantly, in this case, it was observed that the fact that the property was dedicated to public use or not was immaterial. The doctrine was further expanded in the case of William H. Burton v.
19 111 S. W. 2d. 995(1938). 20 100 P. 2d. 709 (1940). 21 100 P. 2d. 709 (1940). International Journal of Socio-Legal Research 181 Volume 1 | Issue 1 | ISSN- 2393-8250
Willmington Parking Authority,46 wherein the US Supreme Court found that when a public authority had leased its premises to a private restaurant, the latter is susceptible to a challenge under the Fourteenth Amendment. Fortifying the presumption that State inaction amounted to State ratification of discriminatory conduct, the Court observed that ―by its inaction, the Authority and through it the State, has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination.‖22
Thus, the Courts limited governmental power to lease public property as a means to forgo of Constitutional obligations.23 The foundational premises of the various decisions have largely varied - the lease contains an implied provision protecting Constitutional rights;24 the power to lease does not incorporate the power to discriminate;25the property has been leased temporarily and still belongs to the State and hence its use cannot be discriminatory,26or that the State has a duty when the property has been built with public money to make certain that its use is open for all;27 the primary intent in making the lease was to discriminate.28 Thus, in ultimate analysis,
22 The Court interestingly distinguished the responsibilities of a restaurant owner from those of an inn-keeper stating that while the latter performs a public function, the latter is not compelled by law to provide his services to all those who demand them. In making the distinction, the Court has signaled a cautioned departure from the Public Function requirement. 23 ―Equal Protection and Attempts to Avoid State Action‖, (1953) 29 Ind. L. J. 125. 24 Lawrence v. Hancock, 76 F. Supp. 1004 (1948). 25 Ibid; Easterly v. Dempster, 112 F. Supp. 214 (1953). 26 Culver v. City of Warren, 83 N. E. 2d. 82 (1948). 27 Kern v. Newton, 100 P. 2d. 709, (1940). 28 Tate v. Department of Conservation and Development, 133 F. Supp 53 (1955). Compare with Easterly v. Dempster, 112 F. Supp. 215 (1953), where the City had, to relieve itself of the burdensome obligation of maintain a profitless enterprise, leased a golf course to a private entity, the subsequent discrimination by the owners will not amount to State Action. International Journal of Socio-Legal Research 182 Volume 1 | Issue 1 | ISSN- 2393-8250
in determining State Action, the enquiry turns to the character of the leasehold right.29 Conversion of private activity into Governmental Action by grant of State authority was demonstrated in Betts v. Easley30 wherein the Railway Labour Act required the formation of a sole collective bargaining agent on behalf of Railway employees. The Supreme Court of Kansas observed, ―in performing its functions as such statutory bargaining agent, a labour organization is not to be regarded as a wholly private association of individuals free from all Constitutional or statutory restraints to which public agencies are subjected.‖ The greatest advancement of the public authority doctrine has been through the primary election cases as the continuing attempts of the Southern Democratic Parties to prevent black individuals from participating in the primary elections by inducing a step- by-step withdrawal of State participation, were thwarted by the Courts by an incremental expansion of the instrumentality theory.31 In the earliest case in the string of decisions pertaining to the primary elections, it was held that a state statute restricting participating in primary elections to only whites was violative of the Fourteenth Amendment.32 It was contended, unsuccessfully, that the statute concerned only political rights and hence could not be challenged in Court. The US Supreme Court observed that, ―if the defendant‘s conduct was a wrong to the plaintiff, the same reasons that allow a recovery for denying the plaintiff a vote at a final election allow it for denying a vote at the primary election that may determine the final result.‖ To overcome the effect of the said decision, Texas amended its law to transfer the responsibility to determine qualifications of party
29 Donald M. Cahen, ―The Impact of Shelley v. Kraemer on the State Action Concept‖, (1956) 44 Cal. L. Rev. 719. 30 169 P. 2d. 831 (1946). 31 Donald M. Cahen, ―The Impact of Shelley v. Kraemer on the State Action Concept‖, (1956) 44 Cal. L. Rev. 719. 32 Nixon v. Herndon, 273 US 536 (1927).
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membership to the party State Executive Committee. The State Executive Committee passed a resolution barring black individuals from participating the State primaries. This was challenged in Nixon v. Condon.33 The US Supreme Court observed that: ― when those agencies are invested with an authority independent of the will of the association in whose name they undertake to speak, they become to that extent the organs of the State itself…they are then governmental instruments whereby parties are organized and regulated to the end that the Government itself is established or continued.‖ Thereafter, the state of Texas deleted even this requirement from its statute book, leaving all regulation of primaries to the parties. In Smith v. Albright,34 the US Supreme Court held that a political party which is statutorily required to conduct primaries for the selection of party nominees to the general election ballot becomes an agency of the State in so far as it determines the qualifications of the participants in the primary election. In order to overcome the mandate of this decision, the state of South Carolina then repealed all laws relating to primary elections with the tacit purpose to continue the discrimination of blacks. This was challenged in Rice v. Elmore,35wherein the Court of Appeals observed that: ―when these officials participate in what is part of a state‘s election machinery, they are election officers of the State de facto if not de jure and as such must observe the limitations of the Constitution. Having undertaken to perform an important function relating to the exercise of sovereignty by the people, they may not violate the fundamental principles laid down in the Constitution for its exercise.‖
33 236 US 73 (1931). 34 321 US 649 (1944). 35 165 F.2d. 387(1947) The US Supreme Court in Elmore v. Rice, 333 US 875 (1948) denied a writ of certiorari against the decision of the Court of Appeals, Fourth Circuit. International Journal of Socio-Legal Research 184 Volume 1 | Issue 1 | ISSN- 2393-8250
Harlan, J. dissenting in the Civil Rights Cases,36 observed that railroad carriers and inn keepers performed important public functions and were akin to public servants. Therefore, the protection afforded by the Thirteenth Amendment would be applicable against them. Interestingly, in analyzing the case of places of public amusement, Harlan J. observed that these places operated under the license of the Government and a license from the public to establish a place of amusement, imports in law, equality of right, at such places.37 The US Courts thus evolved a doctrine that subjected owners of private property who opened their property to public use subject to Constitutional standards. In the case of Marsh v. Alabama,38 the question arose that a private township could prevent a person from distributing religious literature. The majority opinion delivered by Black, J. was premised on the notion that the more an owner opens up his property for use by the public in general for his advantage, the more do his rights become circumscribed by the statutory and Constitutional rights of those who use it. Interestingly, the Court opined that even in cases where the State had merely
36 Ibid. The Majority in this case invalidated a federal law titled ―The Civil Rights Act‖ preventing discrimination by inn keepers, railroads and places of public amusement, as it was observed that the said law could not have been passed by the Federal Government under the Thirteenth or Fourteenth Amendment. See Also, United States v. Cruikshank, 92 US 542 (1875). 37 Id. at p. 43. This observation lends itself as an exemplification to the critique of the State Action doctrine on the basis of the Positive Law Theory. See Erwin Chemerinsky, ―Rethinking State Action‖, (1985) 80 Nw. U. L. Rev. 502; James D. Barnett, ―What is ―State‖ Action under the Fourteenth, Fifteenth and Nineteenth Amendments of the Constitution‖, (1944) 24 Or. L. Rev. 227. Erwin Chemerinsky argues that under the Positivist construct State is assumed to authorize every conduct it does not proscribe. In the opinion of the researcher this claim does not lend support to a claim that constitutional rights may be enforced against a private entity, as though the objectionable activity stems from a private entity, the remedy is available against the State and not the private entity per se. 38 Ibid at p. 279. International Journal of Socio-Legal Research 185 Volume 1 | Issue 1 | ISSN- 2393-8250
Acquiesced to an entity performing an important public function, the entity would be subject to Constitutional standards. Thus, the US Courts had expanded the State Action doctrine to include the (a) Actions of State officials who has acted either in excess of or in violation of their authority; (b) Actions of certain private entities when they had acted as instrumentalities of the State.
The Purpose of the State Action Doctrine The true purpose of the State Action is wrongly interpreted by both the conservatives and liberal because both sides misperceive the purpose of the doctrine. Conservatives are in error because the state action doctrine was not intended to be used to protect individual rights or states‟ rights. Liberals are in error because the Constitution was not intended to be used to regulate the behavior of individuals nor does it guarantee governmental benefits. Instead, the state action doctrine stands for the proposition that the people have the right to determine for themselves, through their state and federal elected representatives, how individuals are to treat each other and how generous society will be in the distribution of wealth when it acts collectively. The state action doctrine is neither a barrier to governmental control of private parties, as conservatives imagine it to be, nor is it a replacement for the democratic process, as liberals would have it.
The Constitution is based upon the once revolutionary but now commonplace idea that the people of this Nation are sovereign. ―We the people‖ ordained and established the government of the United States, following the principles that were announced in the Declaration of Independence that governments are instituted for the purpose of securing people‘s inalienable rights, and that all just powers of government are International Journal of Socio-Legal Research 186 Volume 1 | Issue 1 | ISSN- 2393-8250
derived from the consent of the governed. The people of the United States do not serve the government; rather, the government serves the people. It is for this reason that the government may not invade the fundamental rights of the people. In a hierarchy of constitutional values, the rights of the people trump the powers of government, and therefore governmental action is subject to people‘s fundamental rights. The state action doctrine emerges from and reinforces these fundamental principles of American government, in that the doctrine requires governmental action to be subject to judicial review. Constitutional law is central to our society and our system of law. It establishes a democracy governed by majority rule, but it also protects against what Alexis de Tocqueville and John Stuart Mill called a ―tyranny of the majority.‖Our inalienable rights of equality, liberty and fairness are protected from interference even when – especially when – the majority of the people wish to violate those rights. And because the Constitution is regarded as law, the duty to enforce its prohibitions against state action is the responsibility of the courts. But there are circumstances where the Constitution does not apply, or where it applies in only weakened form. For example, two doctrines that inhibit the courts from subjecting certain laws or governmental actions to rigorous constitutional review are the political question doctrine and the doctrine of governmental intent. The political question doctrine identifies a number of subjects that must be resolved only through the political process. Under this doctrine, matters such as the impeachment of public officials and a number of matters relating to military and foreign policy are either not reviewable by the judiciary or are reviewable only under a very deferential standard of review. The doctrine of governmental intent is concerned with the motivation of the person or entity whose actions are being reviewed. It imposes a lower level of constitutional scrutiny upon and consequently vests more discretion in actors who do not intentionally target certain International Journal of Socio-Legal Research 187 Volume 1 | Issue 1 | ISSN- 2393-8250
constitutionally protected groups or freedoms. The state action doctrine, like the political question doctrine and the doctrine of governmental intent, shields certain categories of conduct from constitutional review. The state action doctrine has four related applications first; the state action doctrine focuses in part upon whose actions are subject to constitutional review, namely actions that are attributable to government. This aspect of the doctrine normally prohibits constitutional review of the actions of private individuals or organizations. The second feature of the state action doctrine distinguishes between two types of governmental actions, affirmative acts and failures to act, and declares that only the former may qualify as violations of constitutional right. Consequently, the state action doctrine does not require the government to adopt laws which forbid private acts of discrimination nor does it require the government to enact social welfare programs. Third, the state action doctrine creates the notion of a ―constitutional baseline,‖ and it allows the government to return to the constitutional baseline by repealing antidiscrimination laws and social welfare programs, but it prohibits the adoption of any governmental process which makes it more difficult for some people to seek the aid of the government than it is for others. And fourth, the state action doctrine is also employed to limit the power of Congress in the enforcement and protection of our fundamental rights.
I propose that in all four of these areas the state action doctrine should serve a single, overriding purpose: constitutional respect for democratic choice. In other words, the state action doctrine contributes to the right of the people to govern them. Accordingly, it should be interpreted in light of its purpose and should be applied only in cases where it would make a significant contribution to democratic principles. I conclude that the Supreme Court has applied the state action doctrine in ways that did not serve the principle of democratic choice, leading to erroneous interpretations of the Constitution. I International Journal of Socio-Legal Research 188 Volume 1 | Issue 1 | ISSN- 2393-8250
also conclude that, properly understood, the state action doctrine is analytically coherent, and that the criticism levelled at the doctrine by several progressive scholars is not justified. The next four sections of this article each describe one aspect of the state action doctrine and analyze the application of the doctrine by the Supreme Court and by progressive critics of the Court. I suggest that in several cases the Court and its critics have misunderstood and misapplied the state action doctrine because they have failed to be guided by its overriding purpose – the preservation of democratic choice.
Definition of State as under Art.12 of the Constitution “The State includes the Government and Parliament of India a d the Government and the Legislature of each of the State‘s and all local or other authorities within the territory of India or under the control of the Government of India‖.39 Article 12 defines the term ‗State‘ as used in different Articles of Part III of the Constitution. It says that unless the context otherwise requires the term ‗Sate‘ includes the following:- 1. The Government and Parliament of India, i.e., Executive and Legislature of the Union. 2. The Government and the Legislature of each State, i.e., Executive and Legislature of States. 3. All local and other authorities within the territory of India. 4. All local and other authorities under the control of the Government of India.
39 Basu.D.D.,vol.1,8TH edi.2007, Wadhwa Nagar ,pg 639 International Journal of Socio-Legal Research 189 Volume 1 | Issue 1 | ISSN- 2393-8250
Authority Authority means a person or body exercising power40, or having a legal right to command and be obeyed.41An authority is a group of persons with official responsibility for a particular area of activity and having a moral or legal right of ability to control others. If a particular co-operative society can be characterized as a ‗state‘ under Art.12 it would also be ―an authority‖ within the meaning of Art.226 of the Constitution. In the present context, authority means the power to make laws, orders, regulations, by- laws, directions, etc., having the force of law, and also the power to administer, enforce or implement them. ―Authority‖ means a public administrative agency or corporation having quasi-governmental powers and authorized to administer revenue producing public enterprise. It is wide enough to include all bodies created by a statute on which powers are conferred to carry out governmental or quasi- governmental functions. ―Authority‖ in law belongs to the province of power. Authority in administrative law is a body having jurisdiction in certain matters of a public matter of a public nature. Therefore, the ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons must be present ―ab extra‖ to make a person an ―authority‖. When the person is an ―agent‖ for instrument of the function of the ―State‖ the power is public.42 A government company carrying on commercial activities incorporated under the Companies Act, which does not have any power of making rules or regulations binding as law, nor the power to administer or to enforce such
40 WEBSTOR‘S Dictionary 41 ODHAM‘S Dictionary 42 Mohd. Anwar Ali v. State of J&K AIR 1967 JK.32 International Journal of Socio-Legal Research 190 Volume 1 | Issue 1 | ISSN- 2393-8250
rules or regulation is not an authority under this Article. The word Authority includes Central Government. The word ―State‖ and ―Authority‖ used in Article 12, remain along, ―the great generalities of the Constitutions‖ the content of which has been and continues to be applied by Court from time to time.43 It thus includes all constitutional or statutory authorities on whom powers are conferred by law, even the autonomous bodies,44 and whether or not they are under the control of the Government or whether or not they are not they may be regarded as agents or delegates of the Government.45What is important in this context, is the power of the authority and not the purpose for which such power has been conferred. Thus, if the other tests are satisfied, a statutory body established for the purpose of carrying on educational, social, or even commercial functions, would be ‗authority‘ within the purview of Art.1246
Local Authorities within the territory of India Local authorities are under the exclusive control of the States, by virtue of entry 5 of List II of the 7th Schedule. The entry contains a list of some local authorities. A ‗local authority‘ is defined in section 3(31) of the General Clauses Act X of 189747 as ―local authority‖ shall mean a municipal committee, district board, body of port commissioner or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fraud. This expression will therefore, include a Municipal Committee48; a Panchayat49;or Port Trust50.Municipality is a ―State‖ for the purpose of this
43 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 2002 5 SCC 111(Supra) 44 Rajasthan State Electricity Board v. Mohan Lal, 1967, 1 SCR 377 45 Ujjam Bai v. State of U.P. 1963 1 SCR 778 46 Parmatama v. Chief Justice, AIR 1961 Raj. 18 47 State of Gujarat v. Shantilal ,AIR 1969 SC 634 48 Ajit Singh v. State of Punjab, AIR 1967 SC 856 49 R.I. Handicrafts Manufacturing Association v. Kottayam Municipality, AIR 2000 Ker.30 International Journal of Socio-Legal Research 191 Volume 1 | Issue 1 | ISSN- 2393-8250
Article. Local or other authorities may be a ―State‖ within the meaning of Art.12.But that does not mean that the authorities are State Government or Central Government and there is distinction between the ―State‖ and Government.51
Other Authorities It refers to the authorities other than those of local self-Government, who have power to make rules, regulations, etc., having the force of law. In view of the Supreme Court decision52 that there is no common genus53. Instrumentality and agency are the two terms, which to some extent overlap in their meaning. ―Instrumentality‖ and ―agency‖ are the two terms, which to some extent overlap in their meaning. Quasi-judicial agency is a governmental sponsored enterprise or corporation. Authority is the ―person or persons in whom government or command is vested.54 The terms-‗instrumentality or ‗agency‘ of the State-are not to be found mentioned in Article.12.It is a process of judicial interpretation-nay expansion-keeping in view of sweep of Article.12,that they have been included or following within the net of Article.12 subject to its satisfying certain tests. While defining, the use of ―include‖ suggests-what follows is not exhaustive. The definition is expansive of the meaning of the term defined. However, the expanding dimension of the ‗State‘ doctrine through judicial wisdom sought to be accompanied by wise limitation; else the expansion may go much beyond what even the framers of the Article.12 may have thought of. Instrumentality and agency are the two terms, which to some extent overlap in their meaning. ―Instrumentality‖ includes ‗means‘ also, which ―agency‖
50 Natwarlal Khodidas Parmar v. Dist. Panchayat, Jamnagar, AIR 1990 Guj.142 51 Rajasthan Electricity Board v. Mohan Lal 1967 1 SCR 52 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology AIR 2002 5 SCC 1 53 Housing Bd. v. H.H.B.E.U., AIR 1996 SC 434 54 Ramamurthy v. Chief Commissioner 1964 1 SCR 656 International Journal of Socio-Legal Research 192 Volume 1 | Issue 1 | ISSN- 2393-8250
does not in its meaning. Quasi-governmental agency id a governmental agency is a government sponsored enterprise or corporation. Authority is the ―person or persons in whom government or command is vested.‖55 The basic and essential distinction between ―an instrumentality and agency‖ of the State and ―other authorities‖ has to be borne in mind. An authority must be authority sui juries‟ to fall within of the meaning the expression ―other authorities‖ under Article 12. A juridical entity, though an authority may also ratify the list of being an instrumentality or agency of the State in which event such authority may be held to be an instrumentality or agency of State, but not vice-versa.56
The list of other authorities coming under Art.12 There is no common feature running through the various bodies,57 which have held to be covered by the expression ‗other authorities‘ 1. The expression refers to— (i) Instrumentalities or agencies of the Government and Government Departments.58 But every instrumentality of the Government is not necessarily the Government department.59 (ii) Every type of public authority , exercising statutory powers, whether such powers are governmental or quasi-governmental60 or non government and whether such authority is under the control of Government or not, and even though it may be
55 Ajit Singh v. State of Punjab AIR 1967 SC 634 56 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology 2002 5 SCC 111 57 Rajasthan Electricity Board v. Mohan Lal AIR 1967 SC 1856 58 Kapila Hingorani v. State of Bihar 2003 6 SCC 1 59 Railway Board v. Observers Publications 1972 1 SCWR 2012 60 Bidi Supply Co. v. Union of India 1956 SC 267 International Journal of Socio-Legal Research 193 Volume 1 | Issue 1 | ISSN- 2393-8250
engaged in carrying on some activities in the nature of trade and commerce.61
(iii) An authority set up under a statute62 for the purpose of administering a law enacted by the legislature, including those vested with the duty to make decisions in order to implement them.
(a) A private body or company. (b) Society registered under the Societies Registration Act. (c) Corporation set up under the State Financial Corporation Act,1951 But--- 2. A non-statutory body, exercising no statutory powers63is not ‗State‘, e.g.,
(i) A company.64 (ii) Private bodies having no statutory power, not being supported by a State Act.65 (iii) A society, registered under the Societies Registration Act, unless it can be held that the Society was an instrumentality or agency of the State, 66or exercise statutory power to make rules, bye-laws or regulations giving statutory force.
61 Som Prakash v. Union of India AIR 1981 3 SCC 2012 62 Sukhdev v. Bhagatram, AIR 1975 SC 1331 63 Debdas v. K.E. College, AIR 1964 Raj.6 64 S.K. Mukherjee v. Chemicals, AIR 1962 Cal.10 65 Naresh v. State of Maharashtra AIR 1967 SC 11 66 Tiwari v.Jwala AIR 1981 SC 122 International Journal of Socio-Legal Research 194 Volume 1 | Issue 1 | ISSN- 2393-8250
(iv) An autonomous body which is controlled by the Government only as to the proper utilisation of its financial grant67.
3. Even a private body or corporation or an aided private school may however, be included within the definition of State if it acts as an agency of the ‗Government‘68 4. The following test would be applicable in determining, whether a corporation is an agency or not. (a) Whether the entire share capital is held by the Company. (b) Whether the corporation enjoys monopoly status conferred by the State. (c) Whether the functions of the corporations are governmental functions or functions solely related thereto which are basically the responsibilities of a Welfare State.69 (d) If a department of the Government has been transferred to the corporation.70 (e) The volume of financial assistance received from the State. (f) Whether any statutory duties are imposed upon the corporations.71 (g) The character of the corporations may change with respect to its different functions.
67 Chander v. N.C.E.R.T., AIR 1992 SC 76 68 Suckdev v. Bhagatram AIR 1975 SC 1331 69 Ajay v. Khalid AIR 1981 SC 487 70 Manmohan v. Commr., AIR 1985 SC 364 71 Mehta v. Union of India AIR 1979 SC 1628 International Journal of Socio-Legal Research 195 Volume 1 | Issue 1 | ISSN- 2393-8250
Conclusion The state action doctrine is somewhat is still a mystery to law students, legal scholars lawyers and judges. It is a key component of the Fourteenth Amendment – a threshold requirement that must be satisfied before triggering protection of our fundamental rights – but the doctrine itself seems to be curiously without purpose, a collection of arbitrary rules that impede constitutional protection of liberty, equality, and fairness for no good reason. Nearly forty years ago Professor Charles Black called the state 72 action doctrine ―a conceptual disaster area‖ and characterized scholarly commentary upon it as ―a torch less search for a way out o a damp echoing cave.‖ More recently other legal scholars have described the state action 73 doctrine as ―analytically incoherent‖ and ―a miasma.‖ The reason that the state action doctrine is considered to be so inscrutable is that the purpose of the doctrine has been misunderstood. The purpose of this project is to explain what the purpose of the state action doctrine is its justification, few cases, how it is different from the Art.12 of the Indian Constitution. Understanding of the operation of Part III is Article 12 of the Indian Constitution which reads as follows, ―In this part, unless the context otherwise requires, ―the State‖ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.‖74 Thus, Article 12 lays down the State Action requirement under the Indian Constitution.
72 Charles L. Black, Jr., Forward: “State Action,” Equal Protection, and California‟s Proposition 14, 81 HARV. L. REV. 69, 95 (1967). 73 Alan R. Madry, State Action and the Due Process of Self-Help; Flagg Bros. Redux, 62 U. PITT. L. REV. 1, 2 (2000). 74 Zee Telefilms v. Union of India, AIR 2005 SC 2677 International Journal of Socio-Legal Research 196 Volume 1 | Issue 1 | ISSN- 2393-8250
REHABILITATION AND REPARATION OF RAPE VICITMS Utkarsh Ravi1 Rushil Chandra2
Introduction Lately Rape has become a notorious offence in India. Right from the mass rape during the partition of the country to the the gang rape of a 23-year old student on a public bus, on 16 December 2012 which sparked large protests across Delhi, rape crimes have left a disturbing impact on the society. The latest notable Incidents include the Shakti Mills case of Mumbai, 2013 and the 2014 Badaun Gang rape. It is the fourth most common offence in the country.3 Going by the National Crime Records Bureau 2013 annual report there were 24,923 rape cases reported across India in 2012 out of which, 24,470 were committed by relative or neighbor.4 The Aftermath of the gang rape in Delhi saw a committee being made up lead by Justice Verma. The main tasks included reforming of the existing anti-rape laws. The 630 page report took 29 days of hard labor and was lauded universally.5 On the basis of the Committee report the Criminal Law Amendment Act 2013 was passed which altered the definition of rape to Sexual assault. According to the Criminal Law Amendment Act 2013, the definition of the offence of rape has been broadened6 so as to reduce the
1 5th Year Student,, Dr. Ram Manohar Lohiya National Law University, Lucknow 2 4th Year Student, Dr. Ram Manohar Lohiya National Law University, Lucknow 3 Kumar, Radha The History of Doing: An Account of Women's Rights and Feminism in India 128 ( Zubaan, 1993). 4 Government of India, Annual NRCB Report: Crime against women, (Ministry of Home Affairs). 5 The Nirbhaya Case and its Aftermath, india, available at: http://www.boloji.com/index.cfm?md=Content&sd=Articles&ArticleID=15504 (Visited on September 15, 2014). 6 Criminal Law (Amendment) Act 2013, § 375. International Journal of Socio-Legal Research 197 Volume 1 | Issue 1 | ISSN- 2393-8250
possibility of sexual offenders escaping the clutches of justice. The definition now reads7: A person is said to commit ―sexual assault‖ if that person – (a) penetrates his penis, to any extent, into the vagina, mouth urethra or anus of another person or makes the person to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of another person or makes the person to do so with him or any other person; or (c) manipulates any part of the body of another person so as to cause penetration into the vagina, urethra, anus or any part of body of such person or makes the person to do so with him or any other person; or (d) applies his mouth to the penis, vagina, anus, urethra of another person or makes such person to do so with him or any other person; (e) touches the vagina, penis, anus or breast of the person or makes the person touch the vagina, penis, anus or breast of that person or any other person, except where such penetration or touching is carried out for proper hygienic or medical purposes under the circumstances falling under any of the following seven descriptions:–– Firstly.–– Against the other person‘s will. Secondly. –– Without the other person‘s consent. Thirdly. –– With the other person‘s consent when such consent has been obtained by putting such other person or any person in whom such other person is interested, in fear of death or of hurt. Fourthly. –– When the person assaulted is a female, with her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes to be lawfully married. Fifthly.–– With the consent of the other person when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the
7 The Indian Penal, Code 1860(Act no. 45 of 1860). International Journal of Socio-Legal Research 198 Volume 1 | Issue 1 | ISSN- 2393-8250
administration by that person personally or through another of any stupefying or unwholesome substance, the other person is unable to understand the nature and consequences of that action to which such other person gives consent. Sixthly. –– With or without the other person‘s consent, when such other person is under eighteen years of age. Rape exists in our society because of our narrow mindset. It is a higher level of violence to subjugate a woman who otherwise would not pander to a man‘s ego.8 It is a means of subjugating women and an attempt to establish the male‘s superiority through violence. There have been countless examples of men sexually violating women in the times of riots and social chaos. All this leads to the same conclusion that men try to exhibit their superiority over women by committing the offence of rape. If we analyze the status quo, we will find that the implementation of law in our country is very poor.9 Furthermore, the court staff, the investigating officers and the defense counsel treat the rape cases as salacious gossip. No doubt there is outrage when a rape case is reported in the news media but the solution to curbing the menace of rape lies not in the outrage but in the mindset of the people. We need to tackle the patriarchal and misogynic mindset of the common man. Apart from changing the mindset, a permanent solution must be sought for the rehabilitation of the rape victims rather than formulation of new policies every now and then. Seeking a permanent solution would bring about stability in the society and would increase the societal acceptance towards the victims of rape.
8 Tehelka Bureau, ―How Do We Stop Rapes? India Looks For Answers‖, India, available at: http://www.tehelka.com/delhi-gangrape-outraged-india-reacts/ (Visited on September 15, 2014). 9 IBNlive,―We asked people 'why do men rape women?' The answers are fascinating‖, India, available at: http://ibnlive.in.com/news/we-asked-people-why-do-men-rape-women-the-answers-are- fascinating/448130-79.html (Visited on September 15, 2014). International Journal of Socio-Legal Research 199 Volume 1 | Issue 1 | ISSN- 2393-8250
Aftermath of rape In most of the famous Incidents of rape the victim succumbs to the injuries or dies on the spot and in other cases the victim although alive is as good as dead. The experience of rape itself is extremely traumatic but that is not the worst part. The worst part is its aftermath which is associated with mental and emotional disturbance, in a significant proportion, of the victim10. The psychological sequel of rape includes Post-Traumatic Stress Disorder (PTSD), depression, generalized and phobic anxiety, sexual dysfunction and substance misuse along with feelings of loss, impaired capacity for intimacy and trust, loss of confidence and self-esteem, feelings of vulnerability, increased dependence on others, anger and irritability11. Some of the rape victims also experience, in addition to the above, a feeling of impairment of social functioning thereby developing avoidance and social isolation12 from their former interests and activities. Sexual dysfunction, as mentioned earlier, is fairly common after rape and is usually associated with re- experiencing symptoms and flashbacks of the rape and thereby resulting in decreased enjoyment rather than decreased frequency of the sexual act13. Rapes can be broadly categorized into three categories which are as follows: 1. Rapes committed by strangers. 2. Rapes committed by acquaintances. 3. Rapes committed by close relatives.
10 Kilpatrick et al, 1985; Mezey & Taylor, 1988. 11 ―Effects of sexual assault‖, available at : http://www.rainn.org/get-information/effects-of- sexual-assault (Last accessed on September 15, 2014). 12 Rana Sampson, ―Aquaintance rape of college students‖, Center for problem-oriented policing, available at: http://www.popcenter.org/problems/rape/ (Last accessed on 16 September, 2014). 13 Gillian C. Mezey, Treatment of rape victims, Advances in psychiatric treatment (1997), vol. 3, p. 198. International Journal of Socio-Legal Research 200 Volume 1 | Issue 1 | ISSN- 2393-8250
The third category amongst the above three is the one which causes the most traumatic experience14 of all. This is because of the fact that the victim reposes a strong sense of trust, in the perpetrator, which having been violated leaves her shattered and therefore she finds it very difficult to stabilize and reintegrate into the society after the harrowing experience. Such person loses trust in anyone and is generally affected by loss of confidence, irritability and helplessness.
What has our Government done for the rape victims so far The Government has been trying to come up with new policies and methods to help the rape victims to cope up with the post-rape trauma. Recent initiatives of the Government include the broadening of the definition of ‗rape‘ as mentioned in the Indian Penal Code, 1860 by the Criminal Law Amendment Act, 2013 so as to reduce the possibility of the perpetrators escaping the clutches of justice.. After the Delhi Gang rape case the centre seeks to make an amendment in the Juvenile Justice Act and accordingly, a new law has been passed which says juveniles above 16 will be considered "adults" when they have been accused of rape or equally severe crimes.15 In 2010, the Supreme Court of India directed the National Commission for Women to evolve a ―scheme so as to wipe out the tears of unfortunate victims of rape‖16. The Supreme Court also observed that with regards to the Directive Principles of State Policy17, it was necessary to set up Criminal
14 Meir Gross, INCESTUOUS RAPE: A cause for Hysterical Seizures in Four Adolescent Girls, Vol. 49, Issue 4, p. 704-708, October 1979. 15 Government Moves Changes in Law to Try Juveniles as Adults in Rape Cases, NDTV, Available at: http://www.ndtv.com/article/india/government-moves-changes-in-law-to-try-juveniles-as- adults-in-rape-cases-565267 (Last accessed on 17 September, 2014). 16 Delhi Domestic Working Women‘s Forum v. Union of India and others, writ petition (CRL) No. 362.93 (India). 17 INDIA CONST. art 38(1). International Journal of Socio-Legal Research 201 Volume 1 | Issue 1 | ISSN- 2393-8250
Injuries Compensation Board, as rape victims not only suffer from mental anguish, but also from financial problems as they find it very difficult to continue in employment. The Apex Court further directed that compensation for victims should be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board shall take 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 and also gave certain guidelines regarding the same18. Recently, Section 357- A was added to the Code of Criminal Procedure. It reads: (1) Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and require rehabilitation.19 Therefore, in a nutshell, it can be said that, all that the Government has done so far includes the formulation of victim compensation schemes and monetary support being provided to the victims of rape. Complying with the recommendations of the Justice J S Verma committee and conforming with the WHO‘s guidelines for medico-legal services for victims of sexual violence, The Union Health Ministry formulated new guidelines to ensure that victims of sexual assaults are sensitively handled and also asked for thorough documentation of medical evidence to help better conviction rate in rape cases.20 The guidelines are essentially aimed at doctors and can be used both for rape as well as cases of sexual violence.The guidelines have provisions in the form of Do‘s and Don‘ts
18 Revised scheme for relief and rehabilitation of victims of rape, available at: http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf (Last accessed on 17 September, 2014). 19 S. 357-A, CRPC, 1973. 20 New guidelines for sensitive handling of rape victims – Indian Express, available at: http://indianexpress.com/article/india/regional-india/new-guidelines-for-sensitive-handling- of-rape-victims/ (Last accessed on 18 September, 2014). International Journal of Socio-Legal Research 202 Volume 1 | Issue 1 | ISSN- 2393-8250
such as , it is no longer relevant to check elasticity of the vagina and anus.21 This has been done to conform with the new definition of rape. The aftermath of the Delhi gang rape saw the Delhi High Court coming up with some guidelines and issuing the same to the Government. These included: That the Compensation money should be disbursed within 24 hours of the award instead of the 2 weeks time. It has to be distributed as soon as possible. The Delhi Government has been asked to induct 14, 689 Police officers. The Court has deemed it to be mandatory and the need of the hour. The High court also issued a slew of directions on issues including women safety, compensation for victims, setting up more Forensic Science Labs facilities in the city and induction of more police personnel, including women.22
Considering the trauma and the mental and physical injuries suffered by the victim, monetary compensation does not seem to be enough. Therefore, the Government should come up with a model that can transform the rehabilitation efforts on a whole new level by changing the existing support machinery.
Setting up a model for the governmental machinery When it comes to the question of rehabilitation of the rape victims, we need to look into the possibility of a long term change and not a short one. By a long term change it is meant that a permanent solution must be sought rather
21 http://uphealth.up.nic.in/med-order-14-15/med2/sexual-vil.pdf (Last accessed on 20 September, 2014). 22 Compensate rape victims in 24 hours, expedite induction of more cops: Delhi High Court, available at: http://www.dnaindia.com/delhi/report-compensate-rape-victims-in-24-hours-expedite- induction-of-more-cops-delhi-high-court-2008618 (Last accessed on 12 October, 2014). International Journal of Socio-Legal Research 203 Volume 1 | Issue 1 | ISSN- 2393-8250
than coming up with such policies which are subject to change every now and then. Therefore, the permanent solution that can be suggested here is the establishment of rehabilitation centers in every State. Such rehabilitation centers must be set up in each State under the aegis of the State Governments and the administration of these rehabilitation centers should be similar to that of the prison administration. In order to hide the identities of the rape victims, each of them must be allotted a unique number instead of their names and must be addressed with their new unique identities so as to avoid any possibility of social stigma being attached to their names. The Supreme Court while noting an affidavit filed by Additional Superintendent of Police, Indore, detailing the compensation amount paid to the victims of a gang rape, who had described both the girls by their names, which was as an offence under Section 228 A of the Indian Penal Code issued a show cause notice to him to explain within four weeks as to why no case should be registered against him for disclosing the identity of rape victims.23 Now, the first challenge before the rehabilitation authorities would be the treatment of the mental trauma suffered by the victims. This can be done by the appointment of psychiatrists, preferably females, who would explain to the victims that whatever happened to them was not their fault. This is especially important for those women who, because of religion or culture, tend to believe that such an incident occurred to punish them for something bad done by them. Psychiatric treatment is quintessential because most of the rape victims develop notions according to which they presume that they have become unclean or bad and as a result this brings a change in their attitude leading to loss of self-esteem and confidence. Such rehabilitation centers should be equipped with essential sports and recreation facilities. The victims must have daily therapy sessions in which they should be
23 SC Irked For Disclosing Rape Victims‘ Names, Orders Compensation, Tehelka, available at: http://www.tehelka.com/sc-irked-for-disclosing-rape-victims-names-orders- compensation/ (Last accessed on 7 October, 2014).
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encouraged to express anger at the rapist so that they stop blaming themselves. In order to make sure that the rape victims are not raped in future they must be taught self defense strategies and must also be given proper facilities for learning self defense arts. The workers at these rehabilitation centers including the psychiatrists, chefs, trainers for self defense arts and other staff should preferably be females and proper police machinery must be provided by the State to make sure that the victims stay protected and are not violated any further by any staff member.
What needs to be changed In a recent case of Madhya Pradesh where two minor girls were gang raped by 16 men in Betwa town in 2012, a bench of Justices R M Lodha and Madan B Lokur remarked: ―No amount of money can restore the dignity and confidence of rape victims. However, certain measures like adequate compensation, insurance, employment and social security schemes may help in rehabilitating the rape victims to a certain extent,”.24 Criticizing the State government for paying only 2 lakhs as compensation, the Court declared the amount as highly deficient and insufficient.25 It later stated: ―You are making a mockery of compensation. They suffer from serious infraction of human rights. As a welfare state, you are not able to provide support to rape victims,” and directed the state government to pay Rs 8 lakhs more to both the girls within one month. However, the bench did not pass any direction to the Centre for framing rehabilitation policy for rape victims. The Centre needs to come up with a proper Rehabilitation policy for the same.26
24 Editorial, ―SC asks MP govt to pay two rape victims Rs 10 lakh each‖ The Times of India, Oct. 8, 2014. 25 Editorial, ―Rs. 2 lakh for rape victims a mockery of system: SC‖, The Hindu, Oct. 7, 2014. 26 Editorial, ―SC wants rehabilitation scheme for rape victims‖, Deccan Herald, Oct. 7, 2014. International Journal of Socio-Legal Research 205 Volume 1 | Issue 1 | ISSN- 2393-8250
Next, there is an immediate need to change the common mentality of the Indian society without which we can never reduce the number of rapes being committed in our country. No matter how hard the sanctions be, and no matter what all measures are taken by the State, they all will be in vain unless and until the common mentality of the masses in India changes. If molestation takes place late at night then the most common reaction including that of police or administrative authorities is to post questions such as ―What was the girl doing so late in the night?‖27 The GPS and CCTVs, after all, cannot track what goes inside homes and minds of men; they can only make our streets a bit safer28. The only method for combating the menace of rape is an immediate change in the mentality of the common masses which can be done if every individual takes up the responsibility of protecting his fellow citizens from rape and other sexual offences. We, the people, need to introspect ourselves whether we are contributing to the objectification of women, from the popular culture we consume to the way we bring up our children – from where it‘s a slippery slope to a twisted and unjust understanding of sexual assault in legal terms29 The role of media After the Delhi gang rape incident, the media has been successful to some extent in reporting almost all of the major cases.30 Media can prove to be the ultimate instrument in bringing about change in the mentality of the Indian society by developing a sympathetic behavior towards the rape victims. Media is also referred to as the fourth branch of the Government and it has the responsibility just like the other three branches to help put an end to the crime of rape.
27 Editorial, ―Why Indian men rape‖, The Times Of India, Jan. 13, 2014. 28 Id 29 Tehelka Bureau, How Do We Stop Rapes? India Looks For Answers, India, available at: http://www.tehelka.com/delhi-gangrape-outraged-india-reacts/ (Visited on 13 January, 2014). 30 N Prabha Unnithan, Crime and justice in India 284 (SAGE Publications, 1st edn., 2013). International Journal of Socio-Legal Research 206 Volume 1 | Issue 1 | ISSN- 2393-8250
The problem with media is that their coverage is more rapist-centric rather than victim-centric which is wrong31. The Indian news media‘s coverage of the Delhi gang rape and its aftermath has started to resemble the kind of play-by-play commentary once seen in cricket matches, with a focus on the short-term and the sensational32. This kind of media coverage gives a very different picture to an ordinary viewer and the whole purpose of reporting such an incident stands defeated. What the news media should actually do is, that they should make their coverage more victim-centric and must highlight the trauma and suffering undergone by the victim and should portray it in such a way that it develops sympathy in the minds of the viewers for the victim. Media should also focus on gender sensitization so as to gradually change the common mindset of the Indian society. After all its only the media that can unite the people. The Delhi Rape incident or the Shakti mill‘s Case was raised in press because it happened in Delhi and Mumbai respectively. This nation is a bit bigger than Delhi and our metros. The real India resides in the villages. The central Indian state of Madhya Pradesh has witnessed perhaps the highest number of gang-rapes in the country, Jablapur being the leading city. Despite some 824 gang rapes having been reported in the state‘s assembly records over the past two, these attacks rarely make headlines in national newspapers. In short we need a uniform coverage of all the incidents, be it a village or a Metropolitan. Another important aspect of recent coverage has been the role of social media. The internet and social media need to be utilized as tools to mobilize public support throughout India. People need to raise their voices through
31 Josh Shahryar, How media can help stop rape, Women under siege, India, available at: http://www.womenundersiegeproject.org/blog/entry/how-media-can-help-stop-rape (Visited on 13 January, 2014). 32 Neha Thirani, After Delhi Rape Victim Leaves India, Questions Raised About Media‘s Role, India Ink, India, available at: http://india.blogs.nytimes.com/2012/12/27/after-delhi- rape-victim-leaves-india-questions-raised-about-medias-role/?_r=0 (Visited on 13 January, 2014). International Journal of Socio-Legal Research 207 Volume 1 | Issue 1 | ISSN- 2393-8250
Twitter, Facebook and other social media, expressing their frustrations or delight. Lastly, the media also has to respect the Privacy of the victim to the greatest extent possible. The victim has already suffered much, their privacy should be respected.
Conclusion: There is no straight jacket formula for combating the menace of rape in the Indian society. In other words, a number of changes need to be brought about in the existing system so as make conditions better for rape victims in our society. These changes cannot be implemented until the common man becomes familiar with gender sensitization and starts treating females at par with males. The common mentality needs to be changed in order to improve conditions for the rape victims. Every institution be it Governmental or private, needs to be sensitive to rape victims and needs to take steps to uplift their morale. The common man must stop shifting blame on the victims and should start taking responsibility and by exercising self control. Except for the compensation, the amount of problems suffered by a victim of rape is alarming and hardly anything has been done both through statutorily and various schemes to address them. The legislature should consider coming up with schemes to genuinely benefit the victim so that the latter‘s life can be made facile. The provisions of victim rehabilitation in our country are simply not enough. We need to take some inspiration from the legislations of the US, UK etc. in order to ensure proper justice and a successful rehabilitation scheme. Fair, considerate and sympathetic treatment by the police, hospitals, welfare organizations, prosecutions and courts and, Security to Victims and potential Victims against victimization in future have to be kept in mind.33
33 Murugesan Srinivas and Jane Eyre Mathew, ―Victims and the Criminal Justice System in India: Need for a Paradigm Shift in the Justice System‖ TEMIDA str 51-62(2007). International Journal of Socio-Legal Research 208 Volume 1 | Issue 1 | ISSN- 2393-8250
Because of the low crime reporting rates and lower conviction rate the state‘s role in protecting and providing of human rights security is being questioned. The victim has to bear the brunt most of the times having no assists whereas, the accused has access to full support mechanisms. However, the victim‘s right movements have changed the story and the pertinent question is no longer what should be the correct punishment but rather, what ought to be the just mode of redressal of the injury perpetrated on the victim. The legislative and judicial initiatives in India although in nascent stage have achieved much but; a lot remains to be conquered.
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DEVELOPMENT OF HUMAN RIGHTS: INDIAN AND INTERNATIONAL PERSPECTIVE
Malika Nandkeolyar*
INTRODUCTION Section 2 (1) (d) of the Protection of Human Rights Act, 1993, talks about Human Rights which states that ―the rights relating to liberty, life, equality and dignity of the individual guaranteed by the constitution are human rights‖. The expression ―human rights‖ has not been defined specifically in any Declaration or Covenant of United Nations. Human Rights are generally defined as ―those rights which are inherent in our very nature and without which we cannot live as human beings The Government of India realized the need to establish an independent body for protection of human rights. The establishment of an autonomous National Human Rights Commission by the Government of India reflects its commitment for effective implementation of human rights provisions under national and international instruments. The Commission came into effect on 12 October 1993, by virtue of the Protection of Human Rights Act 1993. The Act contains broad provisions related with its function and powers, composition and other related aspects.
CONCEPT OF HUMAN RIGHTS Human rights are such norms which prescribe certain moral conducts of human beings which are consequently protected by legal and constitutional rights in national as well as international arena. These are universal rights based on egalitarian principle. They cannot be seized by the State except by the due processes of law. International Journal of Socio-Legal Research 210 Volume 1 | Issue 1 | ISSN- 2393-8250
In his Tagore Law Lecture (The Dialectics and Dynamics of Human Rights in India), Jutice V.R. Krishna Iyer 1describes the width and sweep of human rights in his matchless words said- “Human rights are writ on a large canvas as large as the sky. The law makers, lawyers and judges must make the printed text vibrant with human values, not be scared of consequences on the status quo orders. The militant challenges of today need a mobilization of revolutionary consciousness sans which civilized systems cease to exist remember, we are all active navigators, not ideal passengers on space ship, earth as it ascends to celestial levels of glorious human future”
EVOLUTION OF HUMAN RIGHTS The concept of human rights, being a modern concept arose in Europe in the 17th and 18th centuries during the struggle of people against feudal despotism. It was the English philosopher John Locke who first propounded the theory of natural rights which the citizens would claim even against the king. These rights were first declared as Legal rights by French National Assembly in the ‗Declaration of Rights of Man‘ in the year 1789 during French Revolution. Subsequently, these rights were incorporated in the ‗Bill of Rights‘ in the US Constitution in 1971 and they have been included by many countries in their constitution. The human rights in international arena trace back to the Magna Carta (1215 AD), the Petition of Rights (1627 AD) and the Bill of Rights (1688 AD) in the U.K. It was the golden rays of sun enlightening the world of 19th century to human being to know about human rights they possessed. Worth of human personality began to be realized. The resultant of human rights movement was experienced after the Second World War. During the war whole humanity was shocked due to heinous
1 Ram Deo Chauhan v. Bani Kant Das, AIR 2011 SC 615 International Journal of Socio-Legal Research 211 Volume 1 | Issue 1 | ISSN- 2393-8250
crimes committed against men and human rights perished. The history witnessed silently tyranny and complete lawlessness of Nazi Leaders of Germany. President Franklin D Roosevelt on January 6, 1941 reflected in the proclamation of 4 freedoms namely-1.Freedom of Speech 2. Freedom of Religion 3. Freedom of want 4. Freedom from fear. He said “Freedom is the supremacy of human rights everywhere; our support goes to those who struggle to gain and maintain those rights‖.2 The growth and evolution of human rights and international law had achieved a remarkable progress since 1945. On 24th October, 1945 the world at large witnessed establishment of United Nations Organization which on the 10th December, 1948 adopted the Universal Declaration of Human Rights. This was the first positive manifestation of internationalization of human rights values. Soon, thereafter followed the European Convention of Human Rights signed in November, 1950 and brought into force in 1953. This convention created bodies such as The European Commission and European Courts of Human Rights established in 1959. In the same year, the United Nations General Assembly proclaimed the Declaration of Rights of Child. The year 1966 witnessed adoption of International Covenant of Economic, Social and Cultural Rights; International Covenant on Civil and Political Right; Optional Protocol on International Covenant on Civil and Political Rights, and International Covenant on the Elimination of All Forms of Racial Discrimination. In the year 1979, Covenant on all forms of Discrimination against Women was adopted. In 1986, The United National General Assembly proclaimed the declaration against women. In the same year, United Nations General Assembly proclaimed the Declaration on the Right to Development.
2 http://www1.umn.edu/humanrts/education/FDR4freedoms.html accessed at 19.10.2014 at 10:47 AM International Journal of Socio-Legal Research 212 Volume 1 | Issue 1 | ISSN- 2393-8250
Human Rights ensure that the victims are- 1. To be free from intimidation 2. To be informed about availability of international and legal assistance 3. To get back stolen or other personal property which is no longer needed as evidence; and 4. A speedy investigation and trial of the case.
What was said by Alexander Hamilton, the great constitutional expert and political philosopher, way back in 1775, is poignant still today having a clear perception of what human rights are. He said, “The sacred rights of mankind are not to be rummaged for, among old parchment, or musty records. They are written as with a sun beam in the whole volume of human nature, by the hand of the divinity itself and can never be erased or obscured by mortal power”3
INDIAN CONTEXT The Indian context perceives an individual, society and world at large as an organic whole which is implicit in the doctrine of “Vasudhaiva Kutumbakam‖. The Buddhist doctrine of non-violence in deed and thought says it is a humanitarian doctrine par excellence. Jainism too contained such doctrines. According to the Gita, “he who has no ill will to any being, who is friendly and compassionate, who is free from egoism and self sense and who is even-minded in pain and pleasure and patient is dear to God.‖ 4 It also says that divinity in humans is represented by the virtues of non- violence, truth, freedom from anger, etc. Ancient Hindu Law of Human Rights
3 R.P Kataria “Commentary on Human Rights‖ First Edition, Orient Publishing Company, 2011, page 37 4 http://shodhganga.inflibnet.ac.in/bitstream/10603/9617/12/12_chapter%202.pdf accessed on 19.10.2014 at 10:59 AM International Journal of Socio-Legal Research 213 Volume 1 | Issue 1 | ISSN- 2393-8250
Scholars who have spent long time in lucubration on the Hindu "Dharmasastras" and the "Arthasastras" and other legal treatises of the past have discovered a system which regulates the duties of Kings, judges, subjects and judicial as well as legal procedures. The central concept is Dharrna, the functional focus of which is social order. Human rights gain meaning only when there is an independent judiciary to enforce rights. Dharmasastras provides for the same. The independence of the judiciary was one of the outstanding features of the Hindu judicial system. Even during the days of Hindu monarchy, the administration of justice always remained separate from the executive. The case of Ananthapindika v. Jeta 5reported in the vinaya-pitaka, is a shining illustration of this principle. According to it, a Prince and a private citizen submitted their cases before the law court and the court decided against the Prince. The Prince accepted the decision as a matter of course and as binding on him. Law in Hindu jurisprudence was above the sovereign. It was the "Dharma." Certain laws were regarded as above all human authority. Such, for instance, were the natural laws, which no Parliament, however supreme, could abolish There are many references in the Vedas, which throw light on the existence of human rights in ancient lndia. The Vedas proclaim liberty of body (Tan), dwelling house (Skridhi), and life (Jibase). In 1367 B.C. Bahmani and Vijayanayar Kings are stated to have entered into an agreement for the humane treatment of prisoners of war. Kautilya's Arthasastra asserts that in the happiness of the subject‘s lies the happiness of the King, and what is beneficial to the subjects is his own benefit. Kautilya didn‘t agree of this theory of royal absolutism and subordinated the King also to the law. Similarly, Shantiparva prescribes that
5 P.B. Mukherji, “The Hindu Judicial System - The Cultural Heritage of India‖, Vol.ll,, Tagore Law lectures (Calcutta: Eastern Law House. 1999), pp 434-435
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a king may be punished if he does not follow the path of the Dharma. Emperor Ashoka protected and secured the most precious of human rights, particularly the right to equality, fraternity, liberty and happiness. Human Rights in the Islamic Era The Muslim invasion of India created a new situation wherein the Muslim rulers followed a policy of discrimination against the Hindus. So the significance of Muslim rule in lndia was counter- productive to harmony, justice and equality. There was one law for the Muslims (the faithful) and another for the Hindus (the Kafirs or the infidels) With the Mughal rulers, especially with Akbar new era began in the Mughal history of India in the field of human rights as a result of his policy of 'Universal Reconciliation and Tolerance.' Human Rights in British lndia The modern version of human rights jurisprudence may be said to have taken birth in lndia in the British rule. Resistance to foreign rule led to demand for freedom and giving the basic socio political rights of citizens. Indian were often discriminated by the British rulers. The impression created in the Indian minds was that their sacred inalienable human rights and vital interests had been ignored, denied, and trampled upon for the English rulers. Motilal Nehru Committee -In 1925 the Indian National Congress finalized the draft of Common Wealth of India adopting a 'Declaration of Rights'. The Madras Session of the Congress held in the year 1927 - demanded incorporation of a 'Declaration of Fundamental Rights' in any future constitutional framework. A committee under Motilal Nehru was appointed by the National Congress to study the fundamental rights. The Simon Commission, appointed by the British Government in 1927, however, totally rejected the demands voiced by the Nehru Committee reports. Constituent Assembly and Human Rights-The Indian Constitution was framed by the Constituent Assembly of India, which met for the first time International Journal of Socio-Legal Research 215 Volume 1 | Issue 1 | ISSN- 2393-8250
on December 9, 1946. The Constitution of India gave primary importance to human rights. To quote Guha, "The demand for a declaration of fundamental rights arose from four factors." 1. Lack of civil liberty in India during the British rule 2. Deplorable social conditions, particularly affecting the untouchables and women 3. Existence of different religious, linguistic, and ethnic groups encouraged and exploited by the Britishers 4. Exploitation of the tenants by the landlords The Constituent Assembly incorporated in the Constitution of India the substance of the right; proclaimed and adopted by the General Assembly in the Universal Declaration of Human Rights. Further on l0th December 1948, when the Constitution of India was in the making, the General Assembly proclaimed and adopted the Universal Declaration of Human Rights. Many of the rights enveloped in The Universal Declaration of Human Rights were incorporated in the Indian Constitution in The Chapter on Fundamental Rights.
HUMAN RIGHTS AND INTERNATIONAL DECLARATION UNIVERSAL DECLARATION OF HUMAN RIGHTS- Preamble of the act states and the General Assembly proclaims- Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against International Journal of Socio-Legal Research 216 Volume 1 | Issue 1 | ISSN- 2393-8250
tyranny and oppression, that human rights should be protected by the rule of law, Whereas Member States have pledged themselves to achieve, in co- operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge. The declaration entails the following provisions6- ART 1-. Everyone is born free and has dignity because they are human. ART 2-. Everyone has equal rights regardless of differences between people such as gender, religion, language, wealth or political opinion. ART 3- Everyone has the right to life and the right to live in freedom and safety. ART 4- No one shall be held in slavery. ART 5- Everyone has the right not to be hurt, tortured or treated cruelly. ART 6- Everyone has the right to be treated as a person under the law everywhere. ART 7. The law is the same for everyone and should protect everyone equally. ART 8. Everyone has the right to ask for legal help when their basic rights are not respected. ART 9. No one should be arrested or expelled from their country without good reason. ART 10. Everyone has the right to a fair trial, if accused of a crime ART 11. Everyone has the right to be presumed innocent until proven guilty, accused of a crime. ART 12. Everyone has the right to privacy. ART 13. Everyone has the right to travel within and outside their own country.
6 http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx accessed on 19.10.2014 at 11:33 AM International Journal of Socio-Legal Research 217 Volume 1 | Issue 1 | ISSN- 2393-8250
ART 14. Everyone has the right to seek asylum in another country. ART 15. Everyone has the right to a nationality. ART 16. Everyone has the right to marry and have a family. ART 17. Everyone has the right to own property. ART 18. Everyone has the right to free thoughts, conscience and religion including the right to practice their religion privately or in public. ART 19. Everyone has the right to say what they think and to share information with others. ART 20. Everyone has the right to meet with others publicly and privately and to freely form and join peaceful associations. There are other provisions in this Charter as well.
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS AND THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS The ICESCR is a multilateral treaty adopted by the UN General Assembly on December 16, 1966. The International Covenant on Civil and Political Rights was also adopted on December 16, 1966 but came into force on March 23, 1976. Broadly the 2 charters divide the rights into 3 headings: 1. Rights of the Nations- both the covenants essentially recognize the rights of Self- Determination and rights to own, trade and dispose of property freely and not to be deprived of the essential subsistence 2. Civil and Political Rights- The rights pertaining to right to life, integrity, liberty and security of human person; the right with respect to administration of justice; the right to freedom of religion or brief and to form opinion and expression, freedom of movement; the right to assembly and association; and the right to political participation. International Journal of Socio-Legal Research 218 Volume 1 | Issue 1 | ISSN- 2393-8250
3. Economic, Social and Cultural Rights- The right to work, trade union freedoms; the right to adequate standard of living, including food, lodging and clothing; the right to health care; the right to education and the right to take part in cultural life. The covenants also forbid torture and inhuman treatment, slavery, arbitrary arrest and detention in debtor‘s prisons. The ICCPR forbids exploitation of children, and requires that all nations cooperate to terminate world hunger. They forbid propaganda‘s advocating either war or hatred based on race, religion, nationality or language. The charters and covenants form the basic link in the recognition of human rights internationally and were later incorporated in the Indian Constitution. In, Keshavananda Bharati v. State of kerala7, the Supreme Court observed, "The Universal Declaration of Human Rights may not be a legally binding instrument but it shows how India understood the nature of human rights at the time the Constitution was adopted."
HUMAN RIGHTS AND STATUTORY AND JUDICIAL ASPECT The National Human Rights Commission of India is an autonomous public body which was constituted on October 12 1993 under the Protection of Human Rights Ordinance of 28 September 1993. It is a statutory organ which was given its statutory status by the Protection of Human Rights Act, 1993. Human rights are the rights of individuals relating to their life, liberty, equality and dignity. The term would apply to individual rights of parties even against State arising under contract. 8 Constitution of the National Human Rights Commission- The Constitution of the Commission dealt with in Chapter II of the Act. Section
7 AIR 1973 SC 1461 8 Maharashta Housing and Area Development Authority v. Maharashtra State Human Rights Commission, AIR 2010 Bom 2014 International Journal of Socio-Legal Research 219 Volume 1 | Issue 1 | ISSN- 2393-8250
3 of the Act says: ―the Central government shall constitute a body to be known to the National Human Rights Commission to exercise the powers conferred upon, and to perform the functions assigned to it, under this Act.9 The Commission shall consist of (a) A Chairperson who has been a Chief Justice of the Supreme Court; (b) One Member who is, or has been a judge of the Supreme Court; (c) One Member who is, or has been the Chief Justice of the High Court; (d) Two members to be appointed from amongst persons having knowledge of, or practical experience in, matters relating to human rights. 3. The Chairpersons of the National Commission for Minorities, the National Commission for the Scheduled Castes and Scheduled Tribes and the National Commission for Women shall be deemed to be Members of the Commission for the discharge of functions specified in clauses (b) to (j) of section 12. 4. There shall be a Secretary-General who shall be the Chief Executive Officer of the Commission and shall exercise such powers and discharge such functions of the Commission as it may delegate to him. 5. The headquarters of the Commission shall be Delhi and the Commission may, with the previous approval of the Central Government, establish offices at other places in India.
POWERS AND FUNCTIONS OF THE COMMISSION Wide powers and functions have been given to the Commission under Section 12 of the Act. The Commission shall, perform any of the following functions namely- 1. Inquire on its own initiative (suo motto) or on a petition presented to it by a victim or any person on his behalf, into complaint of- a. Violation of human rights or abetment; or
9 The Protection of Human Rights Act, 1993 section 3. International Journal of Socio-Legal Research 220 Volume 1 | Issue 1 | ISSN- 2393-8250
b. Negligence in the prevention of such violation, by a public servant. 2. Intervene in proceedings involving any allegation of violation of human rights pending before a court 3. Visit, under intimation to the State Government, any jail which is under the control of the State Government, where the persons are detained for the purposes of treatment, reformation or protection to study the living condition of the inmates and make recommendations; 4. review the safeguards for the time being in force for the protection of human rights and recommend for their effective implementation; 5. review the factors, including acts of terrorism that inhibit the enjoyment of human rights; 6. study treaties and other international instruments on human rights and make recommendations for their effective implementation; 7. undertake and promote research in the field of human rights; 8. spread human rights literacy among various sections of society; 9. encourage the efforts of non - Governmental organizations and institutions working in the field of human rights; 10. other functions as it may consider necessary for the promotion of human rights.
MAJOR INITIATIVES OF THE COMMISSION: The commission has taken initiatives in guarantying civil liberties which includes Terrorist and Disruptive Activities Act, Prevention of Terrorism Bill, 2000, etc. It set up many Human Rights Cells in the State and City Police Headquarters for protection of Human Rights. It took serious steps to check custodial deaths, torture and rape of women. It took up various discussions and conferences on review of Refugee Laws in the country. It took up studies for police and prison reforms. It took steps for elimination of International Journal of Socio-Legal Research 221 Volume 1 | Issue 1 | ISSN- 2393-8250
Bonded Labour and Child Labour. It gave serious thought to issues of Right to Food, Maternal Anemia and Public Health. Rights of women, vulnerable, scheduled caste and scheduled tribes have been given a status of major Human Rights issue.10 ILLUSTRATIVE CASES: National Human Rights Commission v. State of Arunachal Pradesh The Commission under Article 32 of the Indian Constitution has filed a writ petition as a public interest petition before the Supreme Court of India11. The Commission filed this petition mainly for the enforcement of fundamental rights of about 65,000 Chakma\ Hajong tribals under Article 21 of the Constitution.12 In this case a large number of refugees from erstwhile East Pakistan were displaced in 1964 due to Kaptain Hydel Project. These displaced Chakmas had taken shelter in North-Eastern States of India, namely, in Assam and Tripura. There were two main issues involved in this case; (1) conferring of citizenship; (2) fear of persecution by certain sections of the citizens of Arunachal Pradesh. Largely to these two issues NHRC was approached by two different NGOs. The Commission contended before the Court that the Commission found serving of quit notices by All Arunachal Pradesh Students Union (AAPSU) to Chakmas and their attempted enforcement appeared to be supported by the officers of Arunachal Pradesh. The State government deliberately delayed the disposal of the matter by not furnishing the required response to NHRC and in fact assisted in the enforcement of eviction of the Chakmas from the State through its agencies. The Court after hearing the argument directed the government of Arunachal Pradesh to ensure the life and personal liberty of each and every Chakma residing within the State.
10 http://www.nhrc.nic.in/ 11 National Human Rights Commission of India v. State of Arunachal Pradesh, AIR 1996 SC 1235 12 Article 21 of the Indian Constitution provides, ―No one shall be deprived of his life or personal liberty except according to procedure established by law‖ International Journal of Socio-Legal Research 222 Volume 1 | Issue 1 | ISSN- 2393-8250
Punjab Mass Cremation Order13 Two writ petitions 14were filed before the Supreme Court of India containing serious allegations about large-scale cremations resorted to by the Punjab Police of persons allegedly killed in what were called encounters. The main concern of the Writ Petitions was that there were extra-judicial executions and hasty and secret cremations rendering the State liable for action. These petitions were largely relied on a press note of 16th January 1995 by the Human Rights Wing of the Shiromani Akali Dal under the caption ―Disappeared‖ ―cremation ground‖. The note alleged that the Punjab Police had cremated a large number of human bodies after labeling them as unidentified. The Supreme Court after examining the report submitted to the Court by Central Bureau of Investigation (CBI), relating to cremation of dead bodies observed that report indicates 585 dead bodies were fully identified, 274 partially identified and 1238 unidentified. The report discloses flagrant violation of human rights on a large scale.15 On 12 December 1996 the Court requested the Commission to have the matter examined in accordance with law and determine all the issues related with the case. The Commission granted in some cases compensation amounting of Rupees Two Lakh Fifty thousand (Rs. 2,50,000/-) to the next of kin of the
89 deceased persons. Thus, Human rights are basic, inherent, immutable and inalienable right to which a person is entitled simply by virtue of being born as a human. Constitution and Legislations of civilized country recognize them since they are so quintessentially part of every human being. In a democratic society, all state institutions whether police department, legislature, executive and judiciary must protect human rights. Constitution and Legislations of
13 AIR 1999 SC 340 14 Writ Petition (Crl.) No. 497\95, Paramjit Kaur v. State of Punjab and others and Writ Petition (Crl.) No. 447\95, Committee for Information and Initiative on Punjab v. State of Punjab. 15 http://indiankanoon.org/doc/1538237/ accessed as on 19.10.2014 International Journal of Socio-Legal Research 223 Volume 1 | Issue 1 | ISSN- 2393-8250
civilized country recognize them since they are so quintessentially part of every human being. No state can deprive an individual of their basic and natural rights without due process of law.
REFERNCES Books Referred: 1. P.B. Mukherji, “The Hindu Judicial System - The Cultural Heritage of India‖, Vol.ll,, Tagore Law lectures (Calcutta: Eastern Law House. 1999) 2. R.P Kataria “Commentary on Human Rights‖ First Edition, Orient Publishing Company, 2011
Websites Referred: 1. http://indiankanoon.org/doc/1538237/ 2. http://www.ohchr.org/EN/ProfessionalInterest/Pages/CoreInstruments.aspx accessed on 19.10.2014 3. http://shodhganga.inflibnet.ac.in/bitstream/10603/9617/12/12_chapter%202.pdf 4. http://www1.umn.edu/humanrts/education/FDR4freedoms.html
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DOMESTIC VIOLENCE IN INDIA INTERNATIONAL FRAMEWORK: ARE WE IN ACCORDANCE?
Arun Bhadauria*
INTRODUCTION “Bride tormented to death for not giving dowry‖, ―wife succumbed to death for not ripening male child‖, ―old parents molested by son over not transferring property‖………. Whirl down any random newspaper or access to some moronic news channel and you would easily come across such drastic cases notifying the anecdotes of domestic violence. These news reports are fretish supplement to enormous percentage of untold and unreported cases of domestic violence. In fact, ponder upon the instances of domestic violence which might be occurring in your own ménage or vicinity. We witness but feel reluctant to move even one step forward. It is an ignominy to see that in country like India which is all set in the race to become an superpower; behind lakhs of closed doors, crores of people face severe agony, abuse, trauma and sometimes even a predestined demise. This domestic issue is no more domestic; crossing all social classes, genders, racial lines and age groups. It is becoming a legacy being passed on from one generation another. Since times immemorial problem of domestic violence has become intrinsic part of our society. It has become a tainted tool used by victimizer on victim to exercise unnecessary supremacy or influence, to exploit someone for personal benefits; on various occasions, psychological problems and social influence also add to the vehemence. ______* Student, Gujarat National Law University, Gandhinagar, Gujarat
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The present writing emphasis on various aspects of domestic with utter concentration on reasons behind still existing and multiplying state of abusive affair even after the enactment of much hyped Domestic Violence Act 2005 and why it has failed to curb the eruption of unwanted stigma. Heed has also been paid to the existing international treaties on domestic violence and compliance of India with the same.
DOMESTIC VIOLENCE: IDENTIFYING THE PROBLEM Domestic violence, also known as domestic abuse, spousal abuse, battering, family violence, and intimate partner violence (IPV), is defined as a pattern of abusive behaviours by one partner against another in an intimate relationship such as marriage, dating, family or other such cohabitation.1 World Health Organization (WHO) has defined domestic violence as ―the range of sexually, psychologically and physically coercive acts used against adult and adolescent women by the current or former male intimate partner. Violence is often not restricted to the current husband, but may extend to boyfriends, former husbands and other family members such as parents, siblings and in-laws.‖2 Domestic violence could be widely categorize into following fragments: "Physical abuse" is any illicit and coercive conduct of victimizer which causes to a victim bodily pain, to cause bodily pain, injury or peril to life, limb, or health or dementing the health or growth of the aggrieved person. "Sexual abuse" includes any conduct of victimizer which causes sexual torment to aggrieved person including penetrative sexual assault, non - penetrative sexual assault, seeding unwanted pregnancy, causing STDs
1 Lyn Shipway, Domestic Violence: A Handbook for Health Professionals (London: Routledge, 2004), 2. 2 www.who.int/mediacentre/factsheets/fs239/en/, accessed 16 march, 2014. International Journal of Socio-Legal Research 226 Volume 1 | Issue 1 | ISSN- 2393-8250
including HIV and other heinous act outraging modesty and dignity of women "Verbal and emotional abuse" can be amplified into insults, humiliation, name calling, inflicting verbal torture inflicted upon women for not having a child or a male child; and repeatedly threat a person to cause harm to his near ones or any person in whom the aggrieved is interested. "Economic abuse" is a form of abuse when one intimate partner has control over the other partner's access to economic resources. Economic abuse may involve preventing a spouse from resource acquisition, confining the amount of resources to use by the victim, or by exploiting economic resources of the victim. The motive behind preventing a spouse from acquiring resources is to diminish victim's capacity to support his/herself, thus forcing him/her to depend on the perpetrator financially, which includes preventing the victim from obtaining education, finding employment, maintaining or advancing their careers, and acquiring assets. In addition, the abuser may also put the victim on an allowance, closely monitor how the victim spends money, spend victim's money without his/her consent and creating debt, or completely spend victim's savings to limit available resources.3
According to United Nation Population Fund Report, around two-third of married Indian women are victims of domestic violence and as many as 70 per cent of married women in India between the age of 15 and 49 are victims of beating, rape or forced sex. In India, more than 55 per cent of the
3 Adrienne Adams et al., "Development of the Scale of Economic Abuse: Violence Against Women‖ (New york: penguin, 2008), 563-588. International Journal of Socio-Legal Research 227 Volume 1 | Issue 1 | ISSN- 2393-8250
women suffer from domestic violence, especially in the states of Bihar, U.P., M.P and other northern states.4 The point to ponder over here is, despite of having such a tedious legislation specially dealing with the issue of domestic violence, the problem not subsist but is increasing at higher rate. So what‘s this Protection of Women Against Domestic Violence Act 2005? Is it effective enough to curb down the malady of domestic violence, and if not then why? Taking a terse glimpse of this enactment would make situation lucid further.
Protection Of Women Against Domestic Violence Act 2005: Intrinsic analysis with a brief study In Indian Penal Code we do have umpteen sections dealing with various types of injuries to a person which no doubt includes the victims of domestic violence. In 1983 domestic violence was recognized as a specific criminal offence by instigating section 498-A; though, government had not even partially been successful in curbing this evil as section 498-A only dealt with the cruelty inflicted upon a women by his husband or in-laws. Violence incurred by other close one‘s such as victim‘s own family members including siblings, parents; and other persons residing under same roof; it even went on excluding the person dating victim or person sharing any other sanguinity with victim. IPC including section 498-A were also incapable of dealing with kinds of abuse other than physical. Considering all this aspect government felt the need of bringing this issue into single umbrella; and thus came into being the Domestic Violence Bill 2011, ―To protect the rights of women who are victims of violence of any kind occurring within the family and to provide for matters connected therewith
4 ―Two-third married Indian women victims of domestic violence: UN,‖ Indian Express, October 13, 2005, accessed March 16, 2013, http://expressindia.indianexpress.com/news/fullstory.html. International Journal of Socio-Legal Research 228 Volume 1 | Issue 1 | ISSN- 2393-8250
or incidental thereto.‖5 It was enacted in 2005 as the Protection Of Women Against Domestic Violence Act 2005. Some of the important features of this enactment are analysed and critically reviewed below to delineate the principle picture of this essay. The Domestic Violence Act 2005 has been bestowed with the wide definition of the domestic violence which states that, ―For the purposes of this Act, any act omission or commission or conduct of the respondent shall constitute domestic violence in case it- (a) Harms or injures or endangers the health, safety, life, limb or wellbeing, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or (b) Harasses, harms, Injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or (c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.‖6 This expression is very much exhaustive along with being certainly explicit, except of the definition of‘ ‗respondent‘ and ‗aggrieved‘. These terms are defined as follow: "Respondent" means any adult male person who is, or had been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act.7 ―Domestic relationship‖, for convenience, means a relationship between two persons who live or have at any point of time, lived together in a shared
5 The Domestic Violence Bill, 2001. 6 The Protection of Women Against Domestic Violence Act, 2005 (Act 43 of 2005). 7 Ibid. International Journal of Socio-Legal Research 229 Volume 1 | Issue 1 | ISSN- 2393-8250
household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.8 Now, if we strictly interpret this definition of ‗respondent‘ then it excludes the female counterparts who may inflict torture on aggrieved; but Delhi High court in one its ruling held that ―It is common knowledge that in case a wife is harassed by the husband, other family members may also join him in treating the wife cruelly and such family members would invariably include female relatives as well."9 "If restricted interpretation is given...the very purpose for which this Act is enacted would be defeated. It would be very easy for the husband or other male members to frustrate the remedy by ensuring that the violence on the wife is perpetrated by female members,"10 a bench comprising justices A.K. Sikri and Ajit Bharioke said. Interpreting the provisions the Act, the court said that 'relatives' included not only male but also female members of a family. "Various provisions in the DV Act provide for clinching circumstances indicating that female relative was clearly in the mind of the legislature when it comes to filing of the complaint/application by a wife or a female living in a relationship in the nature of marriage,"11 the Bench said. The judgement was passed on the plea of a woman challenging order of a trial court initiating proceedings against her in a case of alleged domestic violence.
8 Ibid 9 ―Now, women can also be prosecuted in domestic violence cases,‖ India today, June 4, 2010, accessed on March 16, 2013, http://indiatoday.intoday.in/story/now,-women-can-also-be-prosecuted-in-domestic- violence-cases/1/100256.html 10 Varsha Kapoor vs Uoi & Ors. AIR 2010 SC (6) 567 11 Ibid International Journal of Socio-Legal Research 230 Volume 1 | Issue 1 | ISSN- 2393-8250
We have thoroughly gone through the enwiden scope of this Act; but situation is not as manageable as it seems, in spite of having provided such a wide scope to this Act, some loopholes still prevails. First of all, this enactment has limited the purview of domestic violence to ‗share household‘ which means that domestic violence is assumed to be inflicted only inside four walls of chores. This concept possess vital hiatus in the sense that it has ignored domestic violence which occurs in other relationship such as ‗dating ‗. Such relationship generally exist between teenagers who are still at rudimentary stage of life; and worsen situation for any random reason may instigate one to unload violence on other, victim particularly being a girl. of course we don‘t have any recognized status for such a relationship but the question is should be left the victims affected in such cases helpless? Secondly we have ignored violence foisted on victim in workplace, which may be in the form of sexual, verbal or economical abuse. No doubt we do have legislations like IPC and CPC dealing with such issue, but the moot point to pay heed is the core purpose of enacting a provision like Domestic violence Act which is to stop exploitation and discrimination of women at home or even at work place where she does spent most of the time of her day. Third is a failure to recognize a kind of violence inflicted upon aggrieved women by state, we will discuss this in detail in the next section where we will also highlight India‘s stand on CEDAW and its reservation on Article 29 of CEDAW. Fourth point to consider over here is female biased approach of this Act and its failure to address the aspect of domestic violence inflicted upon men. Domestic violence on man is completely ignored by limiting the definition of ‗aggrieved‘ person to women. But Indian laws against domestic violence blatantly deny protection to men against any form of domestic abuse, and every year, over 56,000 married International Journal of Socio-Legal Research 231 Volume 1 | Issue 1 | ISSN- 2393-8250
men commit suicide due to verbal, emotional, economic and physical abuse and legal harassment.12 Some facts are not paid heed while enacting this legislation which made it utterly biased towards women. Unbiased research on domestic violence the world over shows that: Domestic Violence a gender neutral subject Men and children may become victim Men and children seldom report the incident when they are tortured by their wives/girlfriends and mothers respectively. Biased media coverage (e.g. Suicide of young married women is accounted as dowry death, and a young married man committing suicide is attributed to financial/family problems or some other mysterious reasons). Politicians and bureaucrats get no incentive in remitting domestic violence by women against men, children and fellow women.
INTERNATIONAL PERSPECTIVE ON DOMESTIC VIOLENCE
Domestic violence is recognized in international law as a violation of human rights. Although early international treaties only provided protection against domestic violence implicitly, in the 1990‘s domestic violence began to receive more explicit attention with the passage of the General Comment No. 19 by the Committee on the Elimination of Discrimination Against Women (1992) and the Declaration of Elimination of Violence Against Women (1993).13 Here we would consider both of these significant international treaties and India‘s stand on them.
12 Saraswati Iyyer, ―Critical Review of Domestic Violence Act,‖ utthan, March 12, 2012, 24. 13 ―UN Treaties on Domestic Violence‖ last modified October 26, 2012, http://www.stopvaw.org/un_treaties_and_conventions.html. International Journal of Socio-Legal Research 232 Volume 1 | Issue 1 | ISSN- 2393-8250
The Convention on the Elimination of Discrimination Against Women (1981) The Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) is an international treaty adopted in 1979 by the United Nations General Assembly. Described as an international bill of rights for women, it came into force on 3 September 1981. Over fifty countries that have ratified the Convention have done so subject to certain declarations, reservations, and objections, including 38 countries that rejected the enforcement article 29, which addresses means of settlement for disputes concerning the interpretation or application of the Convention.14 Though, CEDAW does not explicitly address the issue of domestic violence but its agenda shares all sorts of provisions opposing discrimination against women including domestic violence; which are as follow: 1. Demand women‘s participation in decision-making at all levels 2. Rejection of violence against women as it impedes the advancement of women and maintains their subordinate status 3. Equality of women and men under the law; protection of women and girls through the rule of law 4. Demand security forces and systems to protect women and girls from gender-based violence 5. Recognition of the fact that distinct experiences and burdens of women and girls come from systemic discrimination 6. Ensure that women‘s experiences, needs and perspectives are incorporated into the political, legal and social decisions that determine the achievement of just and lasting peace15
11 ―Declarations, Reservations and Objections to CEDAW,‖ last modified March 11, 2009, http://www.stopvaw.org/un_treaties_and_conventions.html. 15 ―Intersection between SCR 1325 and CEDAW,‖ accessed March 17, 2014. http://www.gnwp.org/wp-content/uploads/2010/11/Cedaw-1325-1820-synergy.html. International Journal of Socio-Legal Research 233 Volume 1 | Issue 1 | ISSN- 2393-8250
Here 2, 3, and 4 provisions explicitly address the violence against women and rejection of the same by any means. India is one among more than 50 countries who have ratified CEDAW. Like other countries India has kept certain reservations and exceptions on while ratifying this convention. India had ratified this convention with exception on Article 5(a), Article16 (1) & (2) and Article 29. First clause on which India disagreed was Article 5(a), which states that, ―state Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.16India‘s plea on this was in an intensely diverse country like India which owes its cultural and traditional practices since time immemorial it is not feasible to interfere or override the customary practices. While Article 16(1) deals with eliminating all sorts of discrimination with respect to marriage and family relations, which is one of the four exceptions. Regarding Article 16 (2) which states that, ―The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.‖17 The Government of India declared that, though, they support the registration of marriage but in a vast country like India with diverse culture, language and religion this seems impractical. This stand of India looks quite objectionable as it has not agreed upon the clause specifically dealing with elimination of
16 United Nations General Assembly, Resolution 34, ―Convention on the Elimination of All Forms of Discrimination against Women,‖ September 3, 1981. http://www1.umn.edu/humanrts/instree/e1cedaw.htm. 17 Ibid. International Journal of Socio-Legal Research 234 Volume 1 | Issue 1 | ISSN- 2393-8250
child marriage and registration of marriage, reasons might had been any. India‘s reservation on Article 16(1& 2) shows her lackadaisical approach to the issue of domestic violence caused by coercive marriages. Moreover India has kept her reservation upon first paragraph of Article 29, which states that, ―Any dispute between two or more States Parties concerning the interpretation or application of the present Convention which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration, any one of those parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court‖18. India‘s non-acceptance of Article 29 elucidate that that they do not want any external force to intervene in there legislation process, hence keeping their liberty to frame their laws as they find feasible. This non willingness of India is then reflected during the procedure of making the laws and implementing them. Indian government signed and ratified this convention after ten years of its inception. Such a big leap in ratification of a significant convention dealing with the elimination of all sorts of discrimination against women reflects its lethargic approach regarding an issue of such a serious concern. Declaration of Elimination of Violence Against Women (1993) The Declaration on the Elimination of Violence Against Women was adopted without any vote by the United Nations General Assembly in its resolution 48/104 of 20 December 1993. Contained within it is the recognition of "the urgent need for the universal application to women of the rights and principles with regard to equality, security, liberty, integrity and dignity of all human beings.‖19 The declaration is often seen as
18 ibid. 19 United Nations General Assembly, Resolution 48, ―Declaration on the Elimination of Violence Against Women,‖ December 20, 1993, International Journal of Socio-Legal Research 235 Volume 1 | Issue 1 | ISSN- 2393-8250
compatible to, and an empowering of, the work of the Convention on the Elimination of All Forms of Discrimination against Women. Following this since 1993, 25 December of each year is celebrated as the ‗International Day for the Elimination of Violence against women‘. Domestic violence has been defined in its utmost comprehensive scope in the Article 1 and Article 2 of this resolution. Where upon, Article 1 states that, ―For the purposes of this Declaration, the term "violence against women" means any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.20 Hence covering the offence of domestic violence against women in its utmost wider sense, this resolution speaks about any gender based violence on women. It is important to consider that where the Domestic Violence Act 2005 covers all form of domestic violence against women, but the expression ‗gender based violence‘ is not explicitly endowed. We can also think upon installing expression like ‗arbitrary deprivation of liberty of women in her public or private life‘. By this move we could stretch the scope of Domestic Violence Act 2005 outside the four walls of her chores; thereby making it applicable to the work place or educational institutions ; thus protecting her against all sorts of domestic violence occurring in public sphere. Article 2 states that, ―Violence against women shall be understood to encompass, but not be limited to, the following: a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other
http://www.un.org/documents/ga/res/48/a48r104.htm. 20 ibid. International Journal of Socio-Legal Research 236 Volume 1 | Issue 1 | ISSN- 2393-8250
traditional practices harmful to women, non-spousal violence and violence related to exploitation; b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs.‖21
Here first clause deals with the physical and sexual abuse of women in household by any family member. While second clause speaks about psychological, sexual or physical violence inflicted upon women in general community. Interpreting second clause in its pliable manner we could see that it provides patronage to women against domestic violence foisted by someone who does not share household with her. i.e. person having intimate or dating relationship with the aggrieved such as her boyfriend. In addition to it also provide protection against women from prostitution. Here it is a matter of qualm of shame that in some Indian villages, girls are injected into prostitution by their own families - a tradition that began in the name of religion but is now continued as an instrument to earn money. Third clause deals with the violence perpetrated by the state itself. Now the question how state can condone could be a party to domestic violence? No doubt domestic violence is perpetrated by the near ones or family members or person known to the aggrieved but state could be accomplice in occurrence of domestic violence by not eradication the unjust traditions and culture prompting domestic violence. In March 2003, during a meeting of the UN Commission on the Status of Women, India opposed to clause(c) of Article 2 expressing its non- compliance to include itself within the purview of one who could perpetrate
21 ibid. International Journal of Socio-Legal Research 237 Volume 1 | Issue 1 | ISSN- 2393-8250
violence on women. India‘s this hesitation is quite oblivion with its commitment to the best possible eradication of domestic violence against women.
CONCLUSION In this writing we have come across the major embrasures in the legislation of Domestic Violence Act 2005 which assures women, a safeguard against all kind of abuses and odds. Maintain the fact that this study was more inclined toward the side of women (domestic violence on women) it is considerably affirmed that domestic violence is a gender neutral issue and it is imperative on the part of legislation to pay heed to this aspect; along with this certain steps to improve and precise the scope of Domestic Violence Act are much welcome. Furthermore going through the two major conventions addressing the issue of domestic violence against women, it could be surmise that we are still far behind in adhering to the international protocols and this hiatus should be filled invariably as soon as possible by the government to fulfill its commitment of eradicating the domestic violence to its root. International Journal of Socio-Legal Research 238 Volume 1 | Issue 1 | ISSN- 2393-8250
CONSUMER PROTECTION IN THE INDUSTRIAL SECTOR
Anjaneya Singh* Arup Sinha**
INTRODUCTION
Consumer protection in India has been guaranteed by the Consumer Protection Act. This Act is a result of the impact of the changing trends in the national economies of the world. The Act introduced a quasi judicial consumer redressal mechanism at all levels. After the 1991 economic reforms, the Indian economy as well as the Indian market was thrown open to the world. The process of globalization began with much hue and cry and a wide range of products were introduced. These products were terra incognnita for the Indian consumers. They had never encountered such products and had never imagined such items to exist. However, where there are roses, there are thorns also. With the introduction of these new products, the Indian consumers became much more susceptible to exploitation. Hence, the importance of the Consumer Protection Act 1986, escalated quickly. The Act was introduced with the primary aim of safeguarding the rights of a consumer. Added to that, it keeps a check on the unfair trade practices opted by manufacturers as well as sellers. Section 2(d) defines a consumer of goods in the following words:- a consumer is one who buys or agrees to buy any goods for a consideration, which has been paid or promised or partly promised, or under any system of deffered payment. ______*Student, Chanakya National Law University, Patna, Bihar ** Student, Damodaram Sanjivayya National Law University, Visakhapatnam, Andhra Pradesh International Journal of Socio-Legal Research 239 Volume 1 | Issue 1 | ISSN- 2393-8250
Similarly , a consumer for services exists. Services refer to those intangible activities which are performed by a person or machine to provide satisfaction to another. To avail the benefits of the Consumer Protection Act , the first step a consumer needs to do is file a complaint. A complaint may be made for unfair trade practice, restrictive trade practices, manufacturing defects or service deficiencies. These will be elucidated in the project. Then the complaint is folllowed by investigation and if the consumer is found to be wronged, he shall be given redressal. The project topic stresses on the area of the Industrial sector. Industrial sector may be defined as that branch of factories or industries concerned with providing goods as well as services to the consumer. These goods may range from food items like cereals, biscuits and chips to cosmetic products like creams, gels or powders or even machinery like computers, mobiles or televisions. The services provided also include a vast list of activities ranging from banking, financing, transport ,railways etc. These services can be coined under the term ‗Tertiary sector‘.
HYPOTHESIS According to the researcher, Consumer Protection is extremely necessary in the Industrial Sector. This is so as it is this sector which is responsible for the production of goods and is in direct contact with consumers and can increase the chances of exploitation by multiple folds. Most of us are aware of the case of Donoghue v. Stevenson where the consumer suffered nervous damage due to a defect of the producer- leaving a snail inside a bottle. In order to safeguard the rights of a consumer and to prevent such violation the future, the Consumer Protection Act 1986 was introduced. The remedies and remedies specified by it are up to date with the requirements of the society and help make it a better place for consumers.
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RESEARCH METHODOLOGY The researcher has used both doctrinal and non doctrinal methods of research. It has been conducted via books, journals and articles available in the library and furthermore, a questionnaire has been used to conduct a survey across 50 people to come to a conclusion.
INDUSTRIAL SECTOR- DEFINITION & DISTICTION
In light of the Project topic, ―Consumer Protection in the Industrial Sector‖, this chapter deals with what the industrial sector really is and how broad is its sphere. An Industry means any business, trade, undertaking, manufacture or calling of employees and includes calling, service, employment, handicraft or industrial avocation of workmen1. These industries can be classified in to three categories- Primary, Secondary and Tertiary. The primary industries are concerned with the extraction of raw materials from the Earth. The materials provide the bedrock on which other industries can work on. Examples of this type may be fisheries, agriculture, mining, poultry etc. the Secondary industry is concerned with the manufacturing and selling of goods to the consumer while the tertiary industry is concerned with the provision of services like communication, banking, insurance etc. Correspondingly, an Industrial sector is one of the three sectors that makes up the Country‘s economy. An amalgamation of the secondary and tertiary sector, this sector is primarily concerned with the conversion of raw materials into finished goods for consumption. This sector is a cluster of similar industries performing similar jobs in simple words , an Industry refers to a field or organization involved in the production of goods or extraction of raw material or provision of services. It has been defined under
1 www.citehr.com/1636-legal provisions under industrial disputes act html. 10:00 PM 04- 09-13 International Journal of Socio-Legal Research 241 Volume 1 | Issue 1 | ISSN- 2393-8250
Section 2J of the Industrial Dispute Act via the judgment of the Supreme Court in the Bangalore Water supply vs A. Rajappa2. Since the Industrial Sector is concerned with the manufacturing and selling of goods and services and is in direct contact with the consumers, chances of malpractices arise. This may be in the manufacturing cycle where defective products may be produced, the product may be of poor quality or deficiency in service coupled with the selling stage where misleading advertisements, hoarding of goods or exuberant prices for goods and services may be charged. These will be discussed in the further chapters to come.
GOODS, SERVICES & THE CONSUMER As mentioned in the previous chapter, the topics that will be elucidated in this project are the – what are goods and services and who particularly is a consumer in the economic market. A consumer has been defined under Section 2(d) of the Consumer Protection Act 1986 as- a consumer means any person who (i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or partly promised or any system of deferred payment, but does not include such goods for resale or commercial purpose; or (ii) hires any service for consideration which has been paid or promised or partly paid and partly promised, or any system of deferred payment and includes any user of such services other than the person who buys such services for consideration paid or partly promised or any system of deferred payment, but does not include such services for resale or commercial purpose.3
2 AIR 1978 SC 548, AIR 1978 SC 548; 3 Consumerlaw.in/who-is-consumer/ 10:54 AM IST 29/09/13 International Journal of Socio-Legal Research 242 Volume 1 | Issue 1 | ISSN- 2393-8250
In simple words, a consumer is a person who pays a consideration( any legal object) in return for a good or service to either a trader or a manufacturer. A trader, according to 2(1)(q) of the Act means: any person who sells or distributes an goods for sale and includes the manufacturers thereof, and where such goods are sold or distributed in package form, includes the packer thereof. Similarly, a manufacturer under Section 2(I)(j) refers to a person who (i) makes or manufactures goods or parts thereof; or does not make or manufacture any goods but assembles parts thereof made or manufactured by others and claims the product to be a goods manufactured by himself; or (iii) puts or causes to be put his own mark on any goods manufactured by other manufacturers and claims such goods to be manufactured himself.4 A consumer being at the fag end of the manufacturing-selling chain, has to bear the maximum brunt of the wrongdoings of any person superior to him in the mentioned hierarchy. A good has been defined under the Sale of Goods Act 1930, Section 2(7) as every kind of movable property other than the actionable claims and money and includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under contract of sale5. As mentioned previously also, these goods can be food stuffs like Bread, Chips, Aerated drinks, Tinned food etc, textiles, cosmetics like nail polishes, facial creams , perfumes and machines like fridges, cars, mobiles, photocopiers etc. The Section 2(1)(o) of the Consumer Protection Act 1986 provides that ‗Service‘ means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of energy,
4. Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa- Pg.77 5 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa- Pg. 75 International Journal of Socio-Legal Research 243 Volume 1 | Issue 1 | ISSN- 2393-8250
housing, entertainment, amusement but does not include service free of charge or under contract of personal service6.These services are intangible in nature and can only be judged by the consumer satisfaction. How a consumer is exploited will be the topic of concern in the next chapter.
CONSUMER EXPLOIATION As mentioned in the introduction, due to the process of globalization and with the availability of a vast number of products, the chances of consumer exploitation has greatly increased. Eventhough the government has tried to safeguard the rights of the consumer, till date they remain vulnerable. This susceptibility is primarily due to the lack of awareness of rights as a consumer. In the rural areas, because of poverty, unemployment and poor literacy levels, the people are deprived the benefits of the Consumer Protection Act 1986 while in the urban areas, their life is too fast paced to care for these serious matters which prima facie, appear trivial for the urbanites. This exploitation has been morphed into many different forms, some appearing so innocuous that they leave consumers in a completely gullible state. They may be in a complex form of advertisements claiming cosmetic superiority or physical growth to simple forms such as adulteration of vegetable by your neighbouring vendor. There was a time when the society had to abide to the words ‘Caveat Emptor‘, however, with the changing tune and tempo of the society and laws, the words ‗Caveat Venditor‘ have come into place. DEFECT- Under Section 2(i)(f) of the Consumer Protection Act, a defect has been defined as ― any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by
6 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa-Pg. 75 International Journal of Socio-Legal Research 244 Volume 1 | Issue 1 | ISSN- 2393-8250
or under any law for the time being in force or as is claimed by the trader in any manner whatsoever in the relation to any goods7. The examples of defects have been cited below on the next page.
1. Defective Photo Copy Machine- Handicrafts & Handlooms exports Corpn. Of India vs HCL ltd.8 Facts: the complainant alleged that since the purchase of the machine, the same did not function properly resulting in loss and damage. The respondents had guaranteed five year warranty but failed to remove any such claimed deficiency in the product. Held: the Court ruled in favour of the consumer. The respondent had to pay RS. 40000 as damages to the plaintiff. 2. Defective Fridge- Voltas Ltd. Vs. Dilip Kumar Sil9 Facts: the Plaintiff purchased a fridge and while using it, he found that it had some inherent defects. Even after repairs, the product continued to give troubles. The cooling system was found to be defective. Held: The Court ruled in favour of the plaintiff and declared that though he wasn‘t entitled to a brand new fridge, the cooling system of the fried would be replaced by the defendant. 3. Manufacturing defect in shoes- S. Durga Prasad Rao vs. Bata Shoes Store and association.10 Facts: the complainant purchased a pair of shoes for Rs.949.50. He purchased the good as he was led to believe by the advertisements of
7 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa-Pg.338 8 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa-Pg.342 9 Voltas Ltd v Dilip Kumar Sil(1998) 6 CTJ 393 10 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa-Pg.352 International Journal of Socio-Legal Research 245 Volume 1 | Issue 1 | ISSN- 2393-8250
the respondent that the shoes would be of standard quality. After 2 weeks, the shoes started ripping at the front. Held: the Court ruled in favour of the Consumer and declared that along with Rs.949.50, an amount of Rs.2000 would also be paid by the respondent to the consumer. Donoghue v Stevenson11 Facts: In a bar, a couple brought a gingerbeer to drink. On finishing the bottle, they found a decomposed body of a snail inside the bottle and a case was filed. Held: The court stated that it was not the seller, rather the manufacturer who was responsible for supplying the defective product to the couple.
4. Wrong Advertisement- Murray & Co. vs. K. Sankaralingam12 Facts: Murray & co. were auctioneers. They issued a catalogue containing the list of articled that was to be sold. The Complainant bought a bed for Rs.2400 which was mentioned to be 6x4 ft. However, on examination, it was found to be 6x3 ft. Held: The Rosewood bed with wrong specifications was asked to be returned by the consumer in return for compensation for the product. UNFAIR TRADE PRACTICE- SECTION 2(1)(R) of the Consumer protection Act defines it as a trade practice which, for the purpose of promoting sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices13-
11 Law of torts- S.K. Kapoor Allahabad Book Agency 12 Murray and Co v K Sankaralingam (2002) I CPJ 426 13 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa-Pg.72
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1. Falsely represents that the goods are of a particular standard, quality, quality, grade, composition or style; 2. Falsely represents the services to be of a particular standard, quality or grade; 3. Falsely represents any rebuilt, second hand, renovated model as new; 4. Falsely represents goods to have a particular sponsorship, uses or benefits which it does not. 5. Makes false or misleading statements concerning the usefulness of the good. 6. Gives to the public a warranty or a product life which has been not tested or verified.
RESTRICTIVE TRADE PRACTICE- SECTION2(1)(nn) defines it as any trade practice which requires a consumer to buy, hire or avail of any goods or, as the case may be, services as a condition precedent for buying, hiring, or availing of other goods and services. Technically, this type of sales is called tie up sales in which a consumer has to buy some goods or services which he does not want to buy in order to purchase the intended good or service.14 DEFICIENCY IN SERVICE- when a service is rendered to a consumer and the same does not provide the said satisfaction as claimed by the provider, or is not up to the standards as stated, it can be termed as deficiency of service. CHARGING EXCESSIVE PRICE- A complaint may be made against a trader who has charged a price in excess of the MRP stated. This is a common means of exploitation these days and can be seen mostly I the Aerated drinks bracket of goods.
14 Consumer Protection Jurisprudence- V. Balakrishnan Eradi- LexisNexis Butterworth Wadhwa-Pg.73
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HAZARDOUS GOODS- The consumer protection act does not describe what is ‗hazardous‘ but a consumer can file a case if he is not informed of the capacity of a good to cause physical damage to him upon usage. Hazardous goods can be deodorants which are highly combustible in nature. FAILURE TO DELIVER GOODS-M/S Anil textiles vs. m/s Anjana Transport and co. and Anor15 Facts: The appellant engaged in a business of manufacture and sale of synthetic and cotton cloth and dispatched 18 cases of synthetic cloth worth Rs.95,568 from Kishangarh to Calcutta. On enquiry with the Calcutta office, even after repeated demands, the consigned goods weren‘t delivered. The transporter had criminally misappropriated the goods. Held: the commission directed the transport company to pay Rs. 25,000 as compensation and mental harassment. UNDERWEIGHT GOODS- Proctor and Gamble home products Ltd. Vs Raj Dev Bhardwaj and Anor16 Facts: The complainant purchased one packet of Ariel Super Soaker detergent. According to the advertisement, the depicted weight was 1kg plus 125 grams extra. However, on checking it was found to be only 1075gms. Held: the Court held Ariel manufacturers guilty and charged them Rs.2000 as a fine. These are a few cases elaborated and cited in order to bring into light the blatant exploitation of the consumers in the market and how effective can the courts be considering the capacity to provide relief.
RIGHTS & REDRESSAL Not only does Consumer Protection include educating consumers about their rights and responsibilities, but also helps getting their grievances redressed. This Consumer Protection cannot solely exist with the support of
15 M/s Anil textiles v M/s Ajanta Transport Co and Anor(1993) 1 CTJ 1032 (NCDRC) 16 Procter and Gamble Home Products Ltd v Raj Dev Bhardwaj and Anor(1997) 5 CTJ 696 International Journal of Socio-Legal Research 248 Volume 1 | Issue 1 | ISSN- 2393-8250
judicial machinery. Rather, it needs the active involvement of consumers also. Furthermore, it is not just the consumers who benefit from fair trade practices but on the long run, the businesses also come over to the winning side. This is so because of the nature of the consumers. Once satisfied by the product or service, they are bound to come again, thereby increasing goodwill and brand name. Moving on to the legal protection provided to Consumers, though the Consumer Protection Act was a class apart, other laws also exist. Some of them are- 1. The Contract Act 1982 – This act lays down the conditions under which promises made by the parties will be binding on each other. This act also specifies remedies in case of breach of contract. 2. The Sale of Goods Act, 1930 – the Act provides some safeguards and reliefs to the buyers of the goods in case the goods do not comply with express or implied conditions and warranties. 3. The Essential Commodities Act, 1955 – the Act aims at controlling the production, distribution and supply of essential commodities and keeping a check on the inflationary trend in prices of these goods. 4. Prevention of Food Adulteration Act 1954 – this Act aims at providing purity in the consumption of food and prevention of adulteration in food items. 5. Trade Marks Act, 1999 – this act has repealed and replaced the Trade and Merchandise Marks Act, 1958 and aims on preventing fraudulent marks on products and ensures originality in the products. 6. The Bureau of Indian Standards Act, 1986 – This Act established the Bureau of Indian Standards and gave it two major functions, formulation of quality standards and certification through BIS certification. It is through this Act that the ISI mark came into being. International Journal of Socio-Legal Research 249 Volume 1 | Issue 1 | ISSN- 2393-8250
Added to these legal provisions , a consumer also has specific legal rights. They are- 1. Right to Safety : the consumer has a right to be protected against a good which might be hazardous in nature to life and health. For eg- Wires manufactured, not complying with the norms of the government, may pose a serious threat if overheated. 2. Right to Information : the consumer has the complete right to know about the product he intends to buy including the composition, quantity, directions of use, price, date etc. 3. Right to Choose : The consumer, under this right has the right to choose from a wide range of products and brands and is not to be bounded via a monopolistic market. 4. Right to be Heard : the consumer has the right to have a Locus Standi in the court in case of dissatisfaction with a good or service. It is implied that a consumer can approach the courts without any hindrance in case of violation of a right. 5. Right to seek Redressal - the consumer has a right to seek redressal in case the good or service falls short of his expectations. A number of reliefs are provided to a consumer which has been elucidated in the later stages of the chapter. 6. Right to Consumer Education – the Consumer has the right to acquire knowledge and be well informed of his rights. Consumer organizations are playing an important role in this sphere and are enlightening consumers with respect to their rights and remedies.
If a consumer manages to exercise each of these Rights and is aware of the economic market, he stands invincible considering the stand of consumers against the malpractices of a trader or manufacturer. Furthermore, a court can direct the opposite party to do the following things – 1. To remove the defects in the product or service. International Journal of Socio-Legal Research 250 Volume 1 | Issue 1 | ISSN- 2393-8250
2. To replace the defective product with a new one 3. To refund the price of the product or charges paid by the consumer 4. To pay a reasonable amount of compensation for any loss or damage caused by the negligence of the manufacturer. 5. To pay punitive damages as per the situation 6. To discontinue unfair trade or the whole trade completely 7. To withdraw the sale of hazardous goods 8. To pay an amount not less than 5% of the value of the defective goods or services to the Consumer Welfare Fund.
Hence, this ends the chapter of Rights and Remedies available for a consumer under the judicial system of India. This is followed by an analysis of a questionnaire prepared and the conclusion based on the analysis.
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ANALYSIS & CONCLUSION
Upon the analysis of the given questionnaires to the people, the results were pretty shocking and revealed the deplorable state of the consumers in India. Out of the given 50 questionnaires, 43 of the participants had found a deficiency in their good or service. Furthermore, out of the 43 participants, about 30 of them brought goods on the basis of the advertisements shown on television. From this, we realize that the misleading advertisements play a major role in duping the consumers. Added to that, the brand name is not a guarantee that the people will get good quality products. This can be further inferred as out of the 50 questionnaires, for question number 7, 39 people replied that instead of checking the composition, they went for the brand name of the product. This shows the blind trust which companies enjoy in India. Out of the questioned people, 45 replied that they were aware of their rights as a consumer but only 16 of them had sought redressal in a consumer court. This shows that 90% of the people questioned knew their rights but out of them, only 36% seeked redressal. Upon the statistical analysis, we can conclude that though the consumers are aware that they are being wronged, instead of fighting back, they are being supressed to the tyranny of the sellers and producers. The judicial machinery of India with regard to the Consumer Forum is pretty sound but its functioning and user approachability needs to be increased. The exploitation of consumers is rampant and it will still take time for the Indian consumers to break free of their shackles of inactivity and fight the condescending traders and manufacturers.
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A PARODY OF PHISHING: CYBER LEGAL ANGLE Ajay Dabla1* Mannat Singh2**
Introduction Phishing is just like fishing in a lake, but instead of trying to catch a fish, phishers try to steal your personal information. They send out e-mails that look like as if they come from legitimate websites. The e-mails say that your information needs to be updated or validated and asks you to enter your username and password. Once you click the link included in the e-mail, some e-mails might ask you to enter even more personal information including your full name, phone number, social security number, bank account numbers, address and credit card number. However, in case you only visit the fake website and just fill in your username and password, the phisher might be able to gain access to more information only by logging in to your account. Phishing is a con game that criminals use to gather personal information from unsuspecting users. The fake e-mails often look surprisingly real and also the Web pages where you are asked to fill in your information may look legitimate. However, the URL in the address box can tell you whether the page you have been sent to is valid or not. For example, if a person is visiting a Web page on snapdeal, the last section of the domain name must end with "ebay.com." Therefore, "http://www.snapdeal.com" and "http://cgi3.snapdeal.com" are legitimate Web addresses, but "http://www.snapdeal.validate-info.com"and "http://snapdeal.login123.com" are fake addresses, which is being used by phishers. If URL contains an IP
1 * University School of Information and Communication Technology Guru Gobind Singh Indraprastha University, Delhi (INDIA) 110078 2** University School of Law and Legal Studies Guru Gobind Singh Indraprastha University, Delhi (INDIA) 110078
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address, such as 16.33.224.167, rather than a domain name, you can almost be sure whether someone is trying to dupe you for your personal information. If you get an e-mail that asks you to update your personal information and you believe that it is probably valid, visit the website by typing the URL in your browser's address box instead of clicking the link that you have received in the e-mail. For example, go to "https://www.snapdeal.com" instead of clicking the link provided in the e-mail that appears to come from snapdeal. If you are asked to update your personal information after you have manually typed in the Web address and logged in, then the e-mail that you received was probably real. However, in case are not asked to update any information, then the mail was probably a spoof sent to you by a phisher. Most real e-mails will address you by your full name at the beginning of the mail. If there is any doubt about the legitimacy of the e- mail, be smart and don't give your information. Even if you think the message is real, following the guidelines above will prevent you from providing those phishers your personal information.
2. Process of Phishing 2.1 Planning
Phishers first decide and identify the business that they wish to target and determine how to obtain the e-mail addresses of the customers of that field. After that they often use the same mass-mailing and address collection methods as spammers.
2.2 Setup
After they know which business they want to Phish and who their victims are, phishers create techniques for delivering the message and collecting the data from these victims. Mostly, this involves e-mail addresses s well as a Web page. International Journal of Socio-Legal Research 254 Volume 1 | Issue 1 | ISSN- 2393-8250
2.3 Attack
This is the step that people know about. The phisher delivers a phony message that seems to be from a reputable and legitimate source.
2.4 Collection
Phishers record the collected personal information of the victims and enter them into Web pages or popup windows.
2.5 Identity Theft and Fraud
The spammers utilize the information that they've collected to make illegal purchases or otherwise commit fraud. If the phisher wants to manage another attack, he assesses the successes and failures of the scams that he has done and begins the entire cycle again. Phishing scams take advantages of software and security loopholes on the client as well as the server sides. But all the scams even the most high-tech phishing scamsfunction like old- fashioned con jobs. A hustler would convince his mark that he is legitimate and trustworthy.
3. Phishing Methods
Phishers depend on various simple tools and methods to trick users. However, phishers must use different methods to trick the user into believing that it is real and end up using their server or page content
3.1 Man-in –the-middle Attacks One of the most successful ways of obtaining user information is the man in the middle. The man-in-the-middle attack includes the phisher to be situated between the victim and the actual web site, and proxies all connection between the systems. From there, the phisher can discern and document all International Journal of Socio-Legal Research 255 Volume 1 | Issue 1 | ISSN- 2393-8250
the data. This type of attack is perfect for HTTP as well as HTTPS communications. The victim connects to the spammer‘s server as if it was the actual site, while the spammer‘s server makes a parallel connection to the genuine site. The Phisher‘s server then proxies all communication betwixt the customer and the actual web-based application server in real- time. In few cases, where there is a secure HTTPS communication, an SSL connectivity is created between the user and the phisher's proxy. This lets the attack to save all traffic in an unencrypted state, on the other hand the phisher's proxy forms its own SSL connection between itself and the actual web site.
3.2 URL, Obfuscation Attacks The purpose of phishing attacks is to make the message recipient to chase a hyperlink to the spammer‘s server, without the user knowing that they have been sent to a fake site. The most common technique of URL obfuscation are:
3.3 Link manipulation Majority methods of phishing use some kind of technical deception designed to make a link in an email (and the fake website it leads to) look like it belongs to the spoofed organization. Wrongly spelled URLs or the use of subdomains are the tricks regularly used by phishers. In the following example URL, http://www.mybank.example.com/, it seems as if the URL will take you to the example part of the mybankkwebsite; actually this URL points to the "mybank" section of the example site. Another trick that is commonly used is to make the displayed text for a link advice a trustworthy destination, when the link really goes to the phishers' site. The following example link, //en.mysite.org/nivi/Genuine, appears to direct the victim to an article whose title is "Genuine"; once the user clicks on it, it will in fact take the user to the article entitled "Deception". In the lower left hand corner International Journal of Socio-Legal Research 256 Volume 1 | Issue 1 | ISSN- 2393-8250
of the majority browsers users can preview and confirm where the link provided is going to take the victim. Another method of URL obfuscation is by the registration and use of poor domain names. For example, ―Yourbank‖ with the registered victims transactional site personalbanking.mybank.com. The phisher can create a domain with personalbanking.mybank.com.ch, and the victim may not suspect that something is wrong.
3.4 Friendly login URL‟s Number of web browsers allow for complex URLs to include authentic information such as a username and password. Usually using the format, URI://username:password@hostname/path. A phisher might replace the username and password fields for details related to the target web site.
3.5 Third-party shortened URL‟
A lot of web-based applications URLs are lengthy therefore; there are quite a few third-party organizations which provide free services providing shorter URLs. The Phishers use these free services to obscure the intended destination i.e. Website of the victim.
3.6 Host name obfuscation
Phishers might use the IP address as part of a URL to obscure the user, probably bypass content filtering systems, and conceal the true destination from the end user.
3.7 Cross-site scripting
Cross-site scripting way of attacking uses custom URL or code injection either into a legitimate web site URL or embedded data field. These methods are usually used on web sites that have a defect in the scripting. International Journal of Socio-Legal Research 257 Volume 1 | Issue 1 | ISSN- 2393-8250
3.8 Preset Session Attack
HTTP and HTTPS are stateless protocols therefore, web sites should use custom tracking techniques to direct users through its pages and tackle resource access that need authentication. The most common method of accomplishing this is by Session Identifiers. The attacker can take advantage of this procedure by sending a message encapsulating a web link to the actual web site, but also contains a predefined Session ID field. The phishing attacker should compulsorily wait until a message receiver follows the link and authenticates their identity using the Session ID. After they are authenticated, the application server will let any connection using the authorized Session ID to get access to restricted information. Therefore, the Phisher by using the preset SessionID can access a confined page and carryout his malicious actions
3.9 Hidden Attacks An attacker might use HTML as well as other scriptable code that can be read and understood by the victim's web browser and utilize it to manipulate the given information. Often, the spammer uses these methods to disguise false content
3.10 Using Spyware
Frequently installing spyware software on a victim‘s computer, phishers can notice the victim as they fill in the data into web sites. Two common techniques are:
Key-logging: Records every key that is pressed by the victim, specifically when they are entering personal information into web sites. With this data, the attacker can use the account for their own benefit anytime they wish to. International Journal of Socio-Legal Research 258 Volume 1 | Issue 1 | ISSN- 2393-8250
Screen Grabbing: Few phishing attacks use a code created to take a screen shot of information that has been provided by the user to a web site. This can be used to combat some of the more safe financial applications that have unique features built-in to prevent such malicious attacks.
3.11 Browser Vulnerabilities In many cases, phishing attacks can be done due to the vulnerabilities in the web browser. And even when software sellers have painstakingly made an effort to present users with software updates and patch which is very helpful in protecting the victim from phishing attacks. Home users still avoid applying them many times.
3.12 Clone phishing This is a form of phishing attack in which a legitimate, and previously delivered, email that carries an attachment has had its content and recipient address taken and used to generate an almost similar or cloned email. The attachment in the email is substituted with a malevolent version and then sent from a fake email address so that it looks like it came from the real sender. It might claim to be a resend of the real or a improved version of the original. This method can be used to pivot from a formerly infected machine and acquire a foothold on some other machine, by exploiting the social trust related with the inferred connection because both parties receive the original email.
3.13 Whaling Various recent phishing attacks have been guided specifically at senior executives and many high ranking targets within businesses, and the word whaling has been created for such kinds of attacks. International Journal of Socio-Legal Research 259 Volume 1 | Issue 1 | ISSN- 2393-8250
3.14 Rogue Wi-Fi Phishers create free Wi-Fi access-points, and configure them to make man- in-the-middle attacks work, this is usually done with tools like ssl strip, to compromise each and every access point users.
3.15 Session Hijacking Session Hijacking is similar to phishing attack in which user‘s activities are observed. This is done until the victim logs into a target account such as their bank account and establishes their credentials. Then, the spiteful software takes control over the system and undertakes unauthorized actions, such as stealing funds without the victim knowing
3.16 Filter evasion
Attackers now use images in place of text to make it difficult for anti- phishing filters to identify text which is usually used in phishing emails. However, this has resulted in the evolution of more sophisticated and complex anti-phishing softwares that are capable of recovering hidden text in images. These anti phishing software use optical character recognition to optically scan the picture and filter it. Few anti-phishing filters now use intelligent word recognition, which is not designed to completely substitute OCR, but these filters have a unique feature that can detect cursive, hand-written, tilted, or distorted content, as well as text on colored or deformed backgrounds.
3.17 Website forgery After the victim visits the fake website, the deception is not over. Certain phishing scams use JavaScript commands so as to alter the address bar. This International Journal of Socio-Legal Research 260 Volume 1 | Issue 1 | ISSN- 2393-8250
can be done either by displaying an image of a legitimate URL on the address bar, or by closing the real bar and opening up a new one with the registered URL. A Phisher can even use defects in a reliable website's own scripts against the user. Such attacks specifically are problematic, as they guide the victim to sign in at their bank or service's own web page, in which everything from the web address to the security certificates looks correct. In reality, the link of the spoofed website is designed to carry out the attack, making it extremely difficult to detect without professional knowledge. To overlook anti-phishing methods that scan websites for conspired texts, attacks have started using Flash-based websites which is called as phlashing. These appear much like the legitimate website, but conceal the content in a multimedia object.
3.18 Phone phishing
Phone phishing is presently the modern type of phishing. Not every phishing attack needs a fake website. Mails that claimed to have come from a bank directed users to dial a phone number and inform them about the issues with their bank accounts. Once the phone number which is owned by the attacker, is dialled, prompts tell the victims to fill in their account numbers, PIN and other personal information. Phone phishing sometimes uses false caller-ID data to make the user believe that calls are coming from a reliable organization.
3.19 Voice phishing
Voice Phishing is the criminal activity of using social engineering over the phone to obtain private, personal as well as financial information from the common people for the purpose of deceiving people for financial reward. This is called as 'vishing', this word is an amalgamation of "voice" and phishing. Vishing exploits the public's faith in landline services, which International Journal of Socio-Legal Research 261 Volume 1 | Issue 1 | ISSN- 2393-8250
have traditionally terminated in many locations which the telephone companies know, and related to a bill-payer. Vishing is designed to steal credit card numbers, PIN or other personal data which is used in identity theft schemes from individuals. Some fraud people use features provided by Voice over IP like caller ID spoofing to show a number of their choice on the receiver‘s phone line, and automated systems. Vishing is arduous for legal authorities to detect, monitor and trace. In order to protect themselves, consumers are asked to be highly attentive while receiving messages which direct them to call and give credit card details or bank numbers.
Typically, once the victim attends the call, an automatic recording, often created with a text to speech synthesizer, is played to make the consumer vigilant that their credit card has experienced a fraudulent activity or that their bank account has had some unexpected activity. The mail instructs the user to call the given phone number instantly. Similar phone number is often displayed in the spoofed caller ID and is provided with the same name as of the financial company or organization that they are pretending to be. Once, the victim dials the number, it is answered by automated instructions to fill in their credit card details or bank account number on the key pad. After the consumer provide their credit card details or bank account number, the visher receives all the information that is required to make fraudulent use of the credit card or to gain access to the account. This call is usually used to obtain additional information such as security PIN, date of birth, etc. Even though the use of automated receivers and war dialers is preferred by the attacker, many cases have been reported where manual operators play a major role in these attacks, in an attempt to encourage their victims.
4. Legal aspect Section 66: The financial assets of the victim is compromised by the phisher which cannot be done unless & until the fraudster deceivingly International Journal of Socio-Legal Research 262 Volume 1 | Issue 1 | ISSN- 2393-8250
makes some changes by deleting or alteration of some data electronically in the victim‘s account residing in the bank server. Therefore, this act is punishable under section 66 of the IT Act. Section 66A: The impersonated email that contains the fake link of the bank or organization is used to deceive or to mislead the recipient regarding the origin of such mails and therefore, it is clearly punishable under Section 66A IT Act, 2008. Section 66C: In the fake emails sent by the phisher, the fraudster impersonates himself as the real banker and uses the distinctive identifying feature of the bank or organization example the Logo, trademark etc. and thus, it is clearly punishable under section 66C IT Act, 2008. Section 66D: The phisher through the use of the fake emails that contain the link to the fake website of the legitimate bank or organizations impersonates the Bank or financial institutions deceive innocent people, thus this offence also comes under Section 66D.
5. Causes Unawareness among common masses: All over the world, especially in India, there has been lack of awareness regarding various cyber crimes amongst common masses. The users do not even know that their private information or data is actively being targeted by the lawbreakers therefore they fail to take proper precautions when they indulge in online activities. Unawareness of policies – The offenders often depend upon victim‘s unawareness of financial institution policies and procedures for deceiving customers, particularly for things relating to account maintenance and false investigation. Customers being unaware of the rules and system of an online transaction are very much more susceptible to phishing attacks, regardless of technical sophistication. Technical sophistication - Phishers now use advanced moderm technology can be successfully used for fraudulent purposes such as spam, distributed International Journal of Socio-Legal Research 263 Volume 1 | Issue 1 | ISSN- 2393-8250
denial of service as well as electronic surveillance. As more and more customers are becoming aware of cyber crimes, criminals have developed techniques to counter this problem also which is beyond the understanding of a common person. Low Punishments: The punishments of such acts committed on the internet do not have big punishments. This acts as an encouragement to the criminals as they are aware of the fact that they will not be caught and even if they are they will not be adequately punished. The punishment extends to 3 years I prison or fine or both. This is a major reason why such crimes are increasing day by day. Easy loss of evidence: it is extremely easy to get rid of all the evidences. They are a deal of great concern in cyber crimes. In cyber crime, there is no areal place. The evidences, data, the network and other related gadgets with the log files and trail of events emerging or recorded in the system are the crime scene. In such cases of cyber crime, unless the investigation agencies such as the police swing into action quickly and seize the systems, machines and capture the evidences, such vital evidences could be easily manipulated and destroyed. In fact, if one gets to know in advance that his system is going to be seized, he would immediately destroy all the evidences such as formatting the computer, deleting the history, removing the cookies, falsifying the registry and user login set ups, reconfiguring the system files etc. therefore the criminals find it easy to commit a cyber crime.
6. Solutions i) Analyze and indentify the link in the address bar. Looking at the link, the victim can identify whether the website is fake or real. ii) The user should not browse in http, browsing is much safer in https as the password that the user enters will first be encrypted and then sent to the server. International Journal of Socio-Legal Research 264 Volume 1 | Issue 1 | ISSN- 2393-8250
iii) If the website that the user is working on is spoofed, then once the user has entered his/her username and password the page will be refreshed and opened again. Through this, the victim will get to know that his/her personal details have been sent to the phisher and so the victim can immediately change his/her password. iv) Always use internet antivirus. v) Always keep the browser security high by selecting the HIGH option. vi) The cyber branch that deals with such crimes should be well trained and should be provided with best of the facilities so that it becomes easy for them to crack such cases. vii) Device must be protected with a firewall, spam filters, anti-spyware software as well as anti viruses viii) Refrain from clicking on links, instead download files or open attachments that have come from unknown senders. ix) Beware pop-ups and do the following: Never provide personal data in a pop-up screen. Avoid clicking on links in a pop-up screen. Refrain from copying web addresses into your browser from pop- ups. Legitimate enterprises will never ask you to provide personal information in pop-up screens. Therefore be alert.
Conclusion Phishing being a very dangerous crime needs to be prevented from duping the common masses. More and more awareness should be spread especially amongst the adults as they are the once who use E-Banking and are the most ignorant of all. Through Phishing, people sitting at home are able to steal large amount of money. The crimes committed online do not have big punishments therefore it acts as an encouragement for the fraudsters. Moreover, the inefficiency of the people in the police force to handle the International Journal of Socio-Legal Research 265 Volume 1 | Issue 1 | ISSN- 2393-8250
new technology to solve such cases is another reason that encourages such acts. If the solutions given in this article are followed then it will become extremely difficult for the fraudsters to deceive anybody. International Journal of Socio-Legal Research 266 Volume 1 | Issue 1 | ISSN- 2393-8250
TRIAL BY MEDIA: PARADIGM MECHANISM OF RIGHT TO FAIR TRIAL
Mandobi Chowdhury Shayan Ghosh
Introduction
―Do you believe in the judiciary, or do you believe judiciary needs a push from the media?‖
---Barkha Dutt.
The media is the concretized fourth pillar of any democratic system, by virtue is an integral part of the freedom of speech and expression. On one hand it is obligated to respect the rights of individuals whereas on the other hand it is indebted to work within the framework of legal principles and statutes.1Trial by media is a newly introduced idea which emerged in the 20th and the 21st century covering person‘s reputation by creating a widespread perception of guilt regardless of any verdict through the court of law.2 The focal issue lies within the deliberation between supporting an uncensored free press and individual‘s right to privacy.3 In this recent epoch, media has restructured itself into a ‗public court‘ and has started interfering into court proceedings. It completely ignored the fundamental disparity between an accused and a convict keeping at stake the golden principles of ―presumption of innocence until proven guilty‖ and
LL.M. (Business & Corporate Laws), Symbiosis Law School, Pune. LL.M. (Business & Corporate Laws), Symbiosis Law School, Pune. 1Press Council Act, Section 14 (1978). 2Furqan Ahmad, Human Rights Perspective of Media Trial, 1 Asia Law Quarterly 48, 47-62 (2009). 3Navajyoti Samanta, Trial By Media-The Jessica Lal Case, http://ssrn.com/abstract=1003644 (last updated Oct. 05, 2014). International Journal of Socio-Legal Research 267 Volume 1 | Issue 1 | ISSN- 2393-8250
―guilt beyond reasonable doubt.‖ It is observed that media itself does a separate investigation to the extent that it projects the conclusion of that particular issue whereby it develops a public opinion in contravention with the court‘s pronouncement and the rights of the accused. Looking through positive glass we can argue that the persons involved in the ―media trials‖ should appreciate that the Indian Constitution do not support boundless freedom therefore they need to act with certain reasonable restriction to determine that each individual in this country is provided with equal rights recognized by the law. While looking through an undesirable glass it can be established that media trial negatively denudes people of their liberty and violates their dignity through its fanaticism. We sustain to balance the ideology of Pandit Jawaharlal Nehru - ―I would rather have a completely free press with all the dangers involved in the wrong use of that freedom than a suppressed or regulated press.‖
Balancing Media: The Nostrum in Social Development
The symmetry between freedom and restriction of media activism is pertinent to recognize the role of media vis-à-vis the judiciary. According to George Gerbner, ―Popular entertainment and news via mass media represent the convention cultural pressures of the social order. The judicial process, however, represents an effort to adjudicate individual cases according to law.‖ The nostrum of social development by media revolves around the mantra ‗feed what the public is interested in‘ and not ‗what is in public interest‘ which has been detailed in the later chapters. The Andhra Pradesh High Court in Labour Liberation Front v. State of Andhra Pradesh4, observed that ―once an incident involving prominent person or institution takes place, the media is swings into action, virtually leaving very little for
42005 (1) ALT 740. International Journal of Socio-Legal Research 268 Volume 1 | Issue 1 | ISSN- 2393-8250
the prosecution or the Courts.‖5 The media clamour created in the Jessica Lall and Priyadarshini Mattoo cases would be illustrations of the ―Sinful rich type‖ and ―Abuse of power trial‖. The Article 19 of International Covenant on Civil and Political Rights, 1966,6 epitomizes that, ―everyone shall have the right to hold opinions without interference‖ and the ―freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.‖7 However, this freedom comes as a proviso as per the phrase that exercise of this right comes with ―special duties and responsibilities‖ and are subject to ―the rights or reputations of others. Although the freedom of press is not separately guaranteed right in India unlike the United States of America, however the Supreme Court of India has recognized freedom of press under the canopy right of freedom of speech and expression as envisaged under Article 19(1) (a) of the Constitution of India in the plethora of cases. In the cases of In Re: Harijai Singh and Anr. And In Re: Vijay Kumar,8 the Hon‘ble Supreme Court had the juncture to decide on the scope of the freedom of press and recognize it as ―an essential prerequisite of a democratic form of government‖ and regarded it as ―the mother of all other
5Id. at para 14. 6International Covenant on Civil and Political Rights, 1966, Article 19 Mar. 23, 1976. 7Article 19 of the International Covenant on Civil and Political Rights, 1966: 1. Everyone shall have the right to hold opinions without interference. 2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. 3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. 8(1996) 6 SCC 466 at paras 8, 9 and 10. International Journal of Socio-Legal Research 269 Volume 1 | Issue 1 | ISSN- 2393-8250
liberties in a democratic society.‖9 The right provided under Article 19(1) (a) includes the right to information and the right to disseminate through all types of media, whether print, electronic or audiovisual means.10 It was apprehended in Hamdard Dawakhana v. Union of India,11 that the ―right includes the right to acquire and impart ideas and information about matters of common interest‖. The Supreme Court has affirmed that trial by press, media activism by way of a public agitation are the illustrations that can be described as in contravention with the rule of law as they can lead to miscarriage of justice. In Anukul Chandra Pradhan v. Union of India,12 the Supreme Court observed that ―No occasion should arise for an impression that the publicity attached to these matters (the hawala transactions) has tended to dilute the emphasis on the essentials of a fair trial and the basic principles of jurisprudence including the presumption of innocence of the accused unless found guilty at the end of the trial‖.13 Scrutinizing through the communal violence in India media has played a marvellous role projecting the situation of those areas which are captured in the hands of communal violence. From Muradabad Riots, 1980 to Muzaffarnagar Riots 2013,14each of the situations is exposed through all forms of media. It can be argued that this efficiency of the media in unfolding the truth while overlooking their own lives is noteworthy. It is true that our independent India is secular and has democratic government through the mother law of the land but communal violence the very nature of such
9Id.at para 8. 10Secretary, Ministry of Information & Broadcasting v. Cricket Association of West Bengal, 1995(2) SCC161; Romesh Thapar v. State of Madras 1950 SCR 594; Life Insurance Corporation of India v. Manubhai D. Shah 1992 (3) SCC 637. 111960 (2) SCR 671. 121996 (6) SCC 354. 13Ibid., para 7. 14Dhananjay Mahapatra, Muzaffarnagar Riots: SC slams UP for „biased‟ relief order, The Times of India, Nov. 22, 2013 at A2. International Journal of Socio-Legal Research 270 Volume 1 | Issue 1 | ISSN- 2393-8250
secularism vitiating the motive behind such an enactment.15
We Say Fair Trial: They Say Free Press
The globalization of the media aggravated the legal setbacks as a communication can be made through one publication circulating in different jurisdictions of the world.16 Although all the branches of media tries to exercises considerable authority required to distort the truth and harm on individuals still it disappoints the crave for justice.17 It is accepted that a free press is vital to the maintenance of a liberal democracy the sole reason being it provides the citizen with the information and a diversified opinion necessary for them to argue on political and social perspective in order to make their government accountable. The first amendment to the US Constitution provides that ―Congress shall make no law… abridging the freedom of speech or of the press.‖18 Newspapers certainly enjoy the same rights to freedom of speech and expression unlike individuals but the meaning of the press clause must be more than what is expressly written otherwise it will become redundant. According to Stewart the purpose of the media provision is to establish an institution, ‗The Fourth Estate‘, the main purpose would be to act as a check on the activities of all the three organs of the society.19 To avoid glitches associated with legal control self-regulation is one of the methods. Commonly the councils consider and issue formal adjudications on complaints by members of the public about press misconduct focusing on erroneous or misleading complaints.
15Paranjoy Guha Thakurata, Media Ethics Truth, Fairness and Objectivity 55 (Second Ed., Oxford University Press 2011). 16Eric Barendt, Freedom of the Press 92 (Ashgate Publishing Limited 2009). 17John Rawls, A Theory of Justice 95 (Third Indian Reprint, Universal Law Publishing Co. Pvt. Ltd. 2008). 18Geoffrey Robertson, Media Law 204 (Fifth Ed., Penguin Books Publication 2000). 19Supra note 16 at 15. International Journal of Socio-Legal Research 271 Volume 1 | Issue 1 | ISSN- 2393-8250
Feed „What Public is Interested in‟ or „what is in Public Interest‟
The people of any nation do come up with the presumption of unconscious bias as and when the media shadow comes upon. Before the Hon‘ble Apex Court of India came up with the principle of the freedom of the press media in several cases,20 the fundamental crept up to be the people‘s right to know. While elaborating the Supreme Court judgments it was distinguished that although the fundamental job of the press is to furnish the true fact on all the vistas which brings up its head in the society. It has an informatory and disseminator attributes to play which shapes the public opinion.‖21 The freedom of a news has to be in the domain of the people‘s right to know the bring out the true facts22 but they cannot be certainly not to be relied upon like people often does by checking up a white book or the Gazettes in India. The media publicity regarding the 2G spectrum case23, the Coalgate scam case, the Commonwealth Games scam or it might be the Bofors Case, the judiciary has checked the merits of media publicity as the only agency who does know about the incidents. It checks out the information as it expresses the public expression of the disapproval for acts against the legal norms. It thereby prevents the false witness bearers who are under the public surveillance, reducing illegal acts through the public opinions disfavouring crimes by establishing a public platform of debate and discuss the major issues. The two significant attributes of journalists to check out and to conceive that the subject matter should lie in the public domain
20A.G. v. Times Newspaper, (1973) 3 All ER 54; Express Publications (Madurai) Ltd. v. Union of India, AIR 2004 SC 1950, para 29; Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR 1995 SC 1236, para 4. 21Madhavi Goradia Divan, Facets of Media Law 254 (Second Ed., Eastern Book Company 2013). 22Labour Liberation Front v. State of Andhra Pradesh 2005 (1) ALT 740. 23Re: Special Reference No. 1 of 2012, Supreme Court. International Journal of Socio-Legal Research 272 Volume 1 | Issue 1 | ISSN- 2393-8250
for the reader to gain knowledge of and an attempt not to make the truth to deliberately hide from the masses. The entire newsgathering needs utter scrutiny of resources and information. The democratic setup without the means of free information and expression makes no sense of imposing a rule nisi upon the State. The ideal element of democracy and free press does not remain abundant in the society but makes a scourge across the nations.24 Several scholarly articles do trace out the justification of initiating a trial by media while proposing the mob mentality which used to exist in media independently where the opinions comes before the society.25 In the Indian setup, transparency claims assurance in each case where the CBI cannot hound and inspect. It is the media which should come up to come and unfold the history of the dark ages of the Star Chambers. It is more appealing as and when the judicial proceedings were to be conducted secretively. The all-powerful tweets, signed online petitions and the Facebook ―likes‖ merely provide a platform in order to convey the different perspectives. It is only generating public dialogue regarding issues of public importance.26 To muffle ones voice shall be deemed to smother democracy. The stigmatized judicial decisions on the verge of creating an issue in public interest does not generally brings out the emerging interest in which the public is determined to look for. Media institution does have a sacrosanct role to play not only to bring out the true facts but also to help the people to realize what is in public interest. To cite Jeremy Bentham on the administration of justice, the secrecy is the darkness where publicity is the very soul of justice.27 Justice comes up with true fact as a form of expression
24Karen S. Precella, Freedom of the Press: Does the Media have a Special Right of Access to Air Crash Sites?, Winter Journal of Air Law and Commerce 2, (1990). 25Shyamali Bhattacharjee, Media and Mass Communication: An Introduction 155 (Kanishka Publishers 2005). 26Thomas Gibbons, Free Speech in The New Media 32 (Ashgate Publishing Limited 2009). 27K.G. Balakrishnan, The Constitution, The Media And The Courts, The Fourth K.S. Rajamony Memorial International Journal of Socio-Legal Research 273 Volume 1 | Issue 1 | ISSN- 2393-8250
focusing mainly through media which is not only the fourth estate in the Constitution but also the sentinel upon all freedoms.
Verdict: Activism of Media
Do the media influence the judiciary in a subconscious mode? The pre-trial and the onslaught of verdicts by the media in matters which are sub- judice definitely have a certain mode of impact on the administration of justice and also on the human beings who work in judiciary. Media works regardless of any sort of jurisdictional matters but the effect gets on to the media influencing the judges.28 Media attributes make a certain kind of disparity amongst the reality and the viewer‘s knowledge of such instances. Even if one lifts up the bias, at times as the reliance of the reporting‘s done by the press and the accuracy do come under the scanner. The doctrine of dependency upon the media suggests that the masses have little or no experience with certain phenomenon to rely more heavily on the media for the picture of reality.29 The people should move into the research which might exhibit, irrespective of the bias, the media goes wrong on several occasions to provide the exact data to keep the populace communicated. To begin with, however, the media comes up as a directive instrument against the abuse and violations of human rights. The usual social contract society is now the Stone Age where we have already withdrawn ourselves and kept in a universe of networking. There are some societies which enjoy various forms of social, political, economic, and cultural
Public Law Lecture, http://www.supremecourtofindia.nic.in/new_links/9%5B1%5D.8.08.rajamony.pdf(last updated Oct. 16, 2014). 28Attorney General v. BBC 1981 A.C. 303 (HL). 29 Susanna R. Barber,Televised Trials: Weighing Advantages against Disadvantages, 10 Just. Sys. J. 279, 284 (1985). International Journal of Socio-Legal Research 274 Volume 1 | Issue 1 | ISSN- 2393-8250
developments. The free media was harnessed as the force effective execution of the human rights in the constant struggle. The initiation of the mass arousal in the December, 2011 regarding the Nirbhaya issue30 till the issue of women empowerment which cropped up interestingly where media activism struck as the no - entry mode to the denial of justice. It removes the constraints of any kind of disabilities that obstructs in the utilization of the women folk, not only in India but throughout the world. One of the basic tenets is that the media can come to the rescue for the citizens who are denied of fair trial by powerful interests. Suppose in the view of the fact that a revolutionary change has been joining hands with the constant growth and development of society. The role of media in protection to the human rights cannot be brushed aside. Media, the watchdog of the society is no more bound to the activities of the Press but has expanded unprecedentedly.31 The question of expression by the media is sometimes posed before the Judiciary as whether there is any sort of limitations upon the right of media in respect of the matters in the public domain.32 Whether the investigative journalism undermines the issue of a legal wrong? Are they entitled to the Government documents which need secrecy? Shall they not be liable for espionage or defamation for which the Court of Law should summon them on this account? The media on several occasions investigated the Pre-trial prisoners in jail, the opinion polls and in cases of terrorism where Ajmal Kasab or Mohammed Afzal33 where the right to fair trial has been compromised. The issue of justice crept up but it was no failure by moving upon the pathway discovered by the media.34 To facilitate the limits of the media, the engagement of the attention of law-makers shall also seek
30State v. Ram Singh &Anr. SC 114 of 2013. 31Lord Justice Denning, The Road to Justice 76 (Sweet and Maxwell 1988). 32Dr. Saroj Bohra, Role of Media in Protection of Human Rights, XII (4) Nyayadeep (The Official Journal of NALSA), 89 (October 2011). 33State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820. 34John Rawls, Justice as Fairness, A Restatement 84 (First Indian Reprint, Universal Law Publishing Co. Pvt. Ltd. 2004). International Journal of Socio-Legal Research 275 Volume 1 | Issue 1 | ISSN- 2393-8250
to make broader guidelines on such evolving issues to ensure that the line should not be crossed. Now off hand it might seem that the posture of the freedom of press is perhaps a necessity to make a passing reference to the major national dailies and blogs. The line has been on a peg down mode as in there are two modes of lanes in the society, the northward and the southward ones. The two lanes are two facets of the same coin. One acts in a live theatre called life and the other makes such acts accountable.35 The importance of media cannot be underestimated in the life of nation building. The media or the fourth pillar should not bend itself as taking up the sectional interest like that of ―Page 3‖ or being the publicity partner of the industrial magnates who does have interest in financial stakes or become the microphone of the press barons. It is definitely important that they should not be run just for the sake of their outspokenness.36
Conclusion
The status of media has been traced out from the distinguished U.S. Appellate Court Judge Learned Hand observed, The hand that rules the press, the radio, the screen, and the far-spread magazine, rules the country.‖37In evaluating the media, it seldom does not focuses only the ―non- issues‖ but definitely tries to divert the attention of people to bring in opinions and view point which is the basic feature of a democratic setup. The rise of smaller voices shall help to achieve justice and the necessary achievement of justice undoubtedly seen to be done.38
35Michael Froomkin, The Metaphor is the Key: Cryptography, The Clipper Chip, And the Constitution University Pennsylvania Law Review, 19 (January 1995). 36H.R. Khanna, Freedom of Expression with Particular Reference to Freedom of the Media, 2 SCC (Jour.) 1 (1982). 37Gary A. Hengstler, The Media‘s Role in Changing the Face of U.S. Courts 37 (Diane Publishing Company). 38R. v. Sussex Justices : Exparte McCarthy 1924 (1) KB 256. International Journal of Socio-Legal Research 276 Volume 1 | Issue 1 | ISSN- 2393-8250
In the Indian Express Newspaper case39, the Court pointed out that ―in today‘s free world. The freedom of press is supposed to be the heart of social and political intercourse. The press has now assumed the role of the public educator making formal and non-formal education possible in a large scale particularly in the developing world…the purpose of the press is to advance the public interest by publishing facts and opinions without which a democratic electorate cannot make responsible judgments.‖ The virtue of publicizing the important elements of the society is the frame of justice. The soul permits the keenest spur to gain assurance against all kinds of Machiavellianism. It definitely keeps the Hon‘ble Justice himself free from all bias during the trial. The warning against secrecy in the administration of justice, through media the world evidences today as well. The open court principle is however a constitutional significance in many countries including Canada40, the United Kingdom41, the United States42, Australia43 and New Zealand44 which India does not follow. But the blatant commercialization of media, the trivialization of the content and sensationalism might create a great disconnect between the media and the people which should be checked to assure the fair trial mechanism.
39Indian Express Newspapers (Bombay) Private Ltd. & Ors. v. Union of India &Ors. AIR 1986 SC 515. 40AG (Nova Scotia) v. MacIntyre [1982] 1 SCR 175. 41Scott v. Scott [1913] A.C. 417. 42Richmond Newspapers Incorporated v. Virginia 448 U.S. 555 (1980). 43Russell v. Russell (1976) 134 CLR 495. 44Claire Baylis, Justice Done and Justice Seen to be Done – The Public Administration of Justice 21 Wellington Law Review 177 (1991). International Journal of Socio-Legal Research 277 Volume 1 | Issue 1 | ISSN- 2393-8250
CHANGING JUDICIAL TRENDS AND PERCEPTIONS TOWARDS RAPE VICTIMS IN INDIA
Vidya V Devan
One paradox of the modern civilization is that with the rising of women‘s position, crime, violence and discriminations against her is increasing. Protection of women is a subject of hot disputes. Women constitute about one-half of the global population, but they are placed at various disadvantages positions due to gender difference and bias. It is heartless truth that women have been ill-treated in every society for ages and India is no exception. The irony is that in our country where women are worshipped as shakti, the atrocities are committed against her in all sections of life. She is being looked down as commodity or as a slave, she is not only robbed of her dignity and pride outside her house but she also faces ill-treatment and other atrocities within the four walls of her house. They are considered as an object of male sexual enjoyment and reproduction of children. From the cradle to grave, women are under the clutches of numerous evils acts as discriminations, oppressions, violence within the family, at the work places and in the society.
India‘s emergence as a leading player in international trade and politics is increasingly drawing global attention to the nation‘s approach toward redressing and preventing violations of fundamental human rights, including the rights of Indian women. There are many legal provisions for the protection of women. In India there are nearly fifty legislations which are meant women ranging from the Constitution to one of the youngest legislation ie, The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013( Act 14 of 2013).
Asst.Professor (FIP)Substitute , Govt Law College, Ernakulam. International Journal of Socio-Legal Research 278 Volume 1 | Issue 1 | ISSN- 2393-8250
In spite of the rising level of education and increasing number of protective laws women are still exposed to insecurity and constantly subjected to mental and physical abuses. It is the duty of the state to protect women from exploitation and provide social justice. The legislature has used its full capacity to stop inequality and exploitation of women through number of legislations.1But the legislature alone cannot fulfil and attain the object and purpose of the legislation. A combined effort of the three organs of a government is the call of the day. The judiciary has the lion share of work by interpreting the said legislations. The judiciary is the last resort of the citizen to enforce his/her rights when violated. Women and children are being exploited in every walk of life. Women are always victims of inhuman crimes such as dowry death, domestic violence, sexual assault etc. 2 Through this paper my attempt is to analyse the attitude of the judiciary to the women victims especially the rape victims. There has been a sea change in the view taken by the Supreme Court in the subject of rape since Mathura rape case. Judiciary through a course of judgements has tried to give protection to women victims. Judiciary have taken steps in right directions to uplift women to the main stream by giving support.
Offence of Rape: The Most Heinous Crime. ―While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of helpless female‖. The effects of rape on the victim are multidimensional. She would be looked down upon by the society including her own family, relative, friends and neighbours. It will also affect the future of her brothers and sisters, if any. The rape would
1 Aricle from Nyaya Deep2009 2 Law relating to women and children;Mamta Rao International Journal of Socio-Legal Research 279 Volume 1 | Issue 1 | ISSN- 2393-8250
almost inevitably and invariably result in mental torture and suffering to the victim. Younger the victim, greater the repercussions of the offence.3 The conviction rates for rape are still lower than any other major crimes. A rape victim who knocks the door of administration of justice is completely broken down by the humiliation that she suffers during the investigation and trial of the crime. The piercing cross examination by the counsel often causes confusion and nervousness. Cross examination often results in harassment and humiliation of the victim of rape. In criminal proceedings there is a tendency to regard the rape victims as just another piece of evidence. The victim‘s role is to establish a legal case against the offender. Little concern in shown for her efforts to adjust to the rape, responses of her family and society. Judiciary is very sensitive in case of crime against women. This sensitivity is reflected in the judgments of many cases. In Mathura rape case4,when a 16 year old tribal girl was raped by two policemen in the compound of Desi Ganj police Station in Chandrapur District of Maharashtra, the court held that since the tribal girl was ― habituated to sexual intercourse‘, her consent was voluntary, and she could not be considered to have been the victim of rape. And the absence of visible marks of injury would negate any struggle by her, and hence the allegation of rape was not made out. This was the view taken by the court in 1983.What does it mean? Merely because she was not a virgin, is it suggested that she was available for rape to all and sundry?5 This verdict provoked the people. Many agitations6 were conducted against this and so
3 (2001)2SCC(jour)27 child as a victim of rape by Dr. G. Kameswari 4 1983(4)SCC10 5 Supra n.1 6 The movement critiqued the rape laws that were biased against women, placing the ‗burden of proof‘ on the victim herself, and using a woman‘s past sexual behaviour as a means of establishing the consent of the victim to the act of rape. The famous Mathura rape case proved that the past sexual history of a victim was considered reason enough to disbelieve her story . The outcome of the Mathura case caused an uproar in India. A slew of protests helped raise demands for more stringent rape laws, and caused the Government of International Journal of Socio-Legal Research 280 Volume 1 | Issue 1 | ISSN- 2393-8250
The Criminal law Amendment Act was passed 1983. It incorporated section 114A to the Indian Evidence Act, according to which, in a prosecution for rape under section 376(2) of the Indian penal code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she in her evidence before the court that she did not consent, the court may presume that she did not consent. A significant change of perception came in the 1990‘s. The supreme court in the case State of Maharashtra v. Madhukar Narayan Mardikar‟s7 case popularly known as Bhanubai‘s case held that a police inspector who had entered the hut of a prostitute Bhanubai, during the night, was not entitled to invade her privacy, without her consent, even if she was a woman of easy virtue. If any act is done against her wishes, she is equally entitled to the protection of law. In the case of State of Punjab v. Gurmit singh8, directions were given by the Supreme Court for in-camera trial of rape victims, so as to enable the victim to be at comfort while being cross- examined. It was also directed that as far as possible the trial of a case involving crimes against women may be tried by women judges wherever possible.
Essentials to prove offence of rape The explanation to section 375 of IPC1860 which provides that, ―penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape‖ came in for interpretation in various cases. The Supreme Court in Madan Gopal Kakkad v. Naval Dubey &bAnr9 case held that the slightest penetration is sufficient to make out an offence of rape and depth of penetration is irrelevant. The statute contains a narrow legal definition of
India to enact the Criminal Law Amendment of 1983, which significantly amended the rape section of the Indian Penal Code (IPC) 7 1991(1)SCC 57 8 1996(2)SCC384 91992(3)SCC204 International Journal of Socio-Legal Research 281 Volume 1 | Issue 1 | ISSN- 2393-8250
rape. There are a whole gamut of sexual abuses which cannot be excluded from the purview of rape, such as non penetrative sex, insertion of other body parts and foreign articles, forced oral sex sodomy etc. Such forms of sexual abuse and violence cannot be considered as lesser offences. In Sakshi v. Union of India10the Supreme Court issued certain directions such as arrangements should be made that the victim does not see the face of the accused while giving evidence, questions to be asked in cross examination to be given in writing to the judge, who may put the same to the victim in a language that is clear and is not embarrassing as and when requested. But the Honourable Supreme Court rejected the prayer to give wide interpretation to enlarge the scope and definition of rape as contained in section 375 of the IPC, 1860 on the ground that it requires legislative amendment. After a long cry it has been now amended the sections354, 375,376,376A, 376B, 376C and 376D11 in IPC relating to the rape by the Criminal Law Amendment Ordinance 2013. Several new sections are inserted for offence relating to the acid attack under Section 326. To take an action in this direction the state waited till a 23 year girl was cruelly raped and killed in Delhi. She was brutally raped by 5 men and an iron rode was inserted in her vagina. Her death shocked entire women in the country and they agitated against the state. To meet the emergency situation a committee was appointed to make recommendations for law to meet situations like this. Within a record time Justice J.S.Verma Committee submitted the report and the Criminal Law Amendment Act 2013 issued. But even after repeated demands from all women‘s organisation capital punishment is not prescribed for rape. J.S.Verma while submitting his report to strengthen the rape laws said the failure of governance was the root cause of crime against women.
10 2004 5SCC518 11 Provisions relating to definition and punishment for rape. International Journal of Socio-Legal Research 282 Volume 1 | Issue 1 | ISSN- 2393-8250
The following section discusses about the existing system of collection of evidence to prove rape and judiciary‘s approach in dealing with the like cases.
Corroborative Evidence Another important view taken by the court in favour of the rape victim is the non-necessity of corroborative evidence. Earlier the judicial attitude was that corroborative evidence is necessary for proving a rape. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross - examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon.12 However the judiciary has now changed its view. Supreme Court in the case of Om Prakash v. State of Utterpradesh13, held that if the statement of the prosecutrix inspires confidence, her evidence does not require corroboration from any other evidence, including the evidence of a doctor. Conviction can be based on the sole testimony of the prosecutrix. Corroboration with medical evidence is only a rule of prudence. Another remarkable contribution from the judiciary towards women victims can be seen in the Vishaka‘s case. The Supreme Court, while exercising powers under Article 141 of the constitution, moved to fulfil in the vacuum by framing guide lines with respect to sexual harassment at workplace through the case of Vishaka and others v. State of Rajashtan and others 14a landmark judgement which recognizes the right of working woman with dignity.
12 2011(2)SCC550:AIR2011SC697 13 2006(5)SCC614 14 1997(6)SCC241 International Journal of Socio-Legal Research 283 Volume 1 | Issue 1 | ISSN- 2393-8250
Sexual harassment of working women amounts to violation of the right to equality and right to life and liberty, and hence is violation of the right to practice any profession, occupation or trade under Article 14,15,19(1)(g) and 21 of the constitution. The Supreme Court defined the term sexual harassment to include such ―unwelcome sexually determined behaviour whether (directly or by implication) as: Physical contact and advances; Demand or request for sexual favours; Sexually coloured remarks; Showing pornography; Any other unwelcome physical, verbal or non verbal conduct of sexual nature. A new legislation has been enacted specially to deal with the protection of women namely The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. In this Act the guide lines given in the Vishaka‘s case is adopted as such and after 16 years of that judgment the guide lines has become the part of legislative enactment.
Quantum of punishment The legislature gives the limits of discretion in sentencing .The courts have to decide the quantum of punishment to be inflicted in each case. The appellate courts, the High court and the Supreme Court have the responsibility of laying down the penal policy guidelines to be followed by the lower courts in exercising the discretion. Since the courts have been authorised to award lesser sentence by the legislature, the sentencing pattern presents a varied picture. Earlier in almost every rape case, a less than minimum sentence is awarded. Even if the victim of rape is a child, the attitude of the courts has been quite different. But the earlier attitude of the International Journal of Socio-Legal Research 284 Volume 1 | Issue 1 | ISSN- 2393-8250
judiciary has been changed. We can realise the changing attitude through a series of judgements. In Ram Krishan Aggarwala v. State of Orissa15 the accused aged 65 year old business man of Cuttak, was charged of committing rape on a girl, who was 6 years of age. The trial court convicted him of rape and sentenced him to 3 years rigorous imprisonment and Rs.5000 fine. The session‘s judge on appeal upheld the conviction but reduced the sentence to six months rigorous imprisonment and fine of Rs500. In Phul Singh v. State of Haryana16the accused, a youth of 22 years of age, was charged of committing rape on a deaf and dumb girl of 12 years. The trial court convicted the accused and sentenced him to 4 year‘s rigorous imprisonment. The Supreme Court reduced the sentence to 2 year‘s imprisonment on the ground that the accused was a youth with no criminal antecedents and that he had a young wife and a farm to look after. Here no attention is given to the rape victim who is only 12 years of old and deaf and dumb. In Bharwada Bhoginbhai hirjibhai v. State of Gujarat17the accused, a government servant was charged of offences under section 376 read with section 51118 of the Indian penal code for attempting to commit rape on two girls aged around 10 to 12.The conviction given by the trial court was two and a half years of rigorous imprisonment. The Supreme Court upheld the conviction but altered the sentence to 15 month‘s rigorous imprisonment for the reasons the appellant lost his job in view of the conviction recorded by the high court, he must have suffered great humiliation in the society, the prospects of getting a suitable match for his own daughter and the incident occurred 7years back. What a strange findings the Honourable court is
15 (1976)2SCC177: 1976 SCC(Cri)244 16 (1979)4SCC413:1980SCC(Cri)1 17 (1983)3SCC217:1983SCC(Cri)728 18 Punishment or attempting to commit offences punishable with imprisonment for lie or other imprisonment International Journal of Socio-Legal Research 285 Volume 1 | Issue 1 | ISSN- 2393-8250
concerned about the situation or the difficulties of the accused person who has tried to rape 2 young girls. What about their future? This was the earlier attitude of judiciary towards the victims they were not concerned about pain and suffering of the victims. But after this case or in the 80‘s the judicial attitude has been changed drastically in favour of the devastated victims. In State of Karnataka v. Krishnappa19 the accused, a man of49years of age was charged with rape on an innocent helpless girl of 7 years of age. The trial court convicted him and sentenced him to 10 years rigorous imprisonment and observed that because of cruel nature of the act, the accused was not entitled to any leniency. The high court on appeal reduced it to 4 years on the ground that he was an illiterate citizen belonging to the weaker section of society; that he was a chronic addict to drinking and had committed rape on the girl while in a state of intoxication and that his family comprising of his old mother, wife and children were dependent upon him. The Supreme Court, on appeal enhanced the sentence of 4 years to 10 years and observed that the approach of the high court was most casual and inappropriate and it exhibited a lack of sensitivity towards the victims of rape and the society by reducing the substantive sentence without good reasons, let alone ―special and adequate reasons‖
Forensic evidence
Forensic evidence plays a powerful role in and out the court. It significantly influences the beliefs of the police, doctors and the public about whether a woman was in fact raped. The test usually employed in our country is the two figure test. Courts have at times made comments about the ―character‖ of the rape survivor based on the finger test results. In 2009, the Supreme Court stated that ―the prosecutrix appears to be a lady used to
19 (2000)4scc75:2000SCC(Cri)755 International Journal of Socio-Legal Research 286 Volume 1 | Issue 1 | ISSN- 2393-8250
sexual intercourse and a dissolute lady.‖ And further, that ―she had no objection in mixing up and having free movement with any of her known person, for enjoyment. Thus, she appeared to be a woman of easy virtues.‖ 20 In the case of Hare Krishna Das21, who was also accused of rape, the Patna High Court relied on the doctor‘s opinion that the survivor was ―habituated to sex.‖ Court acquitted the accused for lack of medical evidence and held that the testimony of the woman was not reliable.
In Government of NCT Delhi v. Sant Ram and Ors.22, the High Court noted that ―Doctor deposed that on local examination hymen of the prosecutrix was found to be old torn and her vagina was admitting two fingers easily. The court opined that the prosecutrix was habitual in having sexual intercourse.‖ This was one of several factors including a four-day delay in reporting rape and poor collection of evidence by the police that ultimately led to the acquittal of the accused. The High Court held that the testimony of the prosecutrix was not credible, saying that ―when two views are possible, the view which favours the accused persons requires to be adopted in terms of the legal position which stands well settled.‖ But in Pint Raj v. State of Himachal Pradesh, 23 where the doctor had stated that the hymen was torn and it admits two fingers easily. In cross- examination during trial, the doctor further stated that the hymen tear was ―very old.‖ The defence argued that since the woman had been ―exposed to coitus‖ before, there was no proof from the medical evidence that rape had
20 Musauddin Ahmed v. State of Assam, MANU/SC/1126/2009, para.17. 21 Hare Krishna Das v. State of Bihar, MANU/JH/0220/2006, para. 13. See also, State of U.P. v. Dulare, MANU/UP/1148/2005, where the victim said she was gang-raped. The doctor testified that her hymen had an old tear and that she was ―habituated‖ to sex. The defense argued that she had ―loose‖ morals 22 MANU/DE/3091/2009, para. 7 23 MANU/HP/0094/2007, paras. 4 and 8 International Journal of Socio-Legal Research 287 Volume 1 | Issue 1 | ISSN- 2393-8250
taken place. The High Court rejected this argument and explained away the easy admission of two fingers, saying that was so because of the gang rape. . In fact, the Indian Supreme Court, has observed that ―the factum of admission of two fingers could not be held to be averse to the prosecutrix,‖ and described finger-test assessments as ―hypothetical and opinionative,‖ implying recognition for the inherently subjective, arbitrary, and unscientific nature of the test and related opinions. Such a test is inhuman, degrading and unscientific. 24 The finger test blatantly violates the rights of rape survivors to privacy, physical and mental integrity, and dignity. Under international law, rape survivors are entitled to legal recourse that does not re-traumatize them or violate their physical or mental integrity and dignity. The WHO guidelines require the examining doctor to explain every step of the examination to a rape survivor, giving her an opportunity to refuse any part of it.25 India being a party to the International Covenant On Civil And Political Rights (ICCPR), The International Covenant On Economic, Social And Cultural Rights(ICESCR), The Convention On The Rights Of The Child(CRC), and The Convention On Elimination Of All Forms Of Discrimination Against Women(CEDAW) has an obligation to ensure protection of the rights of survivors of sexual violence or abuse. Article 12 of the ICESR26 guarantees the rights to physical health, including sexual and reproductive health and mental health. Universal declaration of human
24 Narayanamma v. State of Karnataka with State of Karnataka v. Muniyappa and others, (1994) 5 SCC 728, para. 4(iv). See also, State of Punjab v. Ramdev Singh, (2004) 1 SCC 421, para. 5 25 Dignity on Trial: India‘s Need for Sound Standards for Conducting and Interpreting Forensic Examinations of Rape Survivors‖, Human Rights Watch, USA (2010) available at www.hrw.org/sites/default/files/reports/india0910webwcover.pdf 26 Article 12: Everyperson has the right to the enjoyment of the highest attainable standard of physical and mental health. International Journal of Socio-Legal Research 288 Volume 1 | Issue 1 | ISSN- 2393-8250
rights(UDHR)27and(ICCPR)28 clearly state that no person can be subjected to ―cruel, inhuman or degrading treatment‖. Identifying survivors of sexual violence as being ―used to sexual intercourse‖ in the Indian social context humiliates them. It violates the physical and mental integrity of survivors of sexual violence.
Conclusion Justice V.R.Krishna Iyer has stated that ‗There are several "sacred cows" of the criminal law in Indo-Anglian jurisprudence which are superstitious survivals and need to be re-examined. When rapists are reveling in their promiscuous pursuits and half of humankind-womankind-is protesting against its hapless lot, when no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, we cannot cling to a fossil formula and insist on corroborative testimony, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. In this case, the testimony has commanded acceptance from two courts. When a woman is ravished what is inflicted is not merely physical injury, but "the deep sense of some deathless shame"‘29. Recently the Hon‘ble Kerala High Court has gone to the extent of sending the copy of the judgment30 to the Bar Council of Kerala for taking necessary action against the defense counsel who ventured irrelevant, unnecessary and abusive cross examination during the trial. A crime victim is devastated by heinous crime of rape and is abused by the police and prosecution system. During the trial and after sentencing, the offender has legal aid; he is fed and housed, given physical and
27 Article 5:no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment 28 Article7:the freedom from inhuman or degrading treatment or punishment 29 Rafiq v.State of U.P(AIR1981SC96) 30 State of Kerala vs Govidachamy ILR2014(1)Kerala141 accused was awarded death penalty for rape and murder . International Journal of Socio-Legal Research 289 Volume 1 | Issue 1 | ISSN- 2393-8250
psychiatric treatment, support for his family and counsel for appeal. A rape victim needs support from all quarters- medical, financial and emotional. In foreign countries, in the last 2 decades, steps have been taken to provide medical support through National Health Services, financial support through Criminal Injuries Compensation Board and victim support schemes and emotional support through Rape crisis centres. Although we have a provision in the Code of Criminal procedure Code to provide compensation to the victims of crime from the fines payable by the offender31,the same is inadequate. India currently has no nationwide policy or guidelines governing medical treatment and forensic examination rape victims nor the provision of psychosocial support and other specialized services to them. Women‘s rights groups have urgently pressed for a sensitive and holistic approach to treating and examining survivors of sexual violence.32 The United Nations Declaration Of Basic Principles of Justice For Victims of Crime and Abuse of Power And Basic Principles And Guidelines on The Right To A Remedy And Reparation For Victims Of Violations Of International Human Rights And Humanitarian Law specify that both state and non- state actors should treat victims ―with compassion and respect for their dignity and human rights .The state has special obligation to ensure that its domestic laws provides the victim who has suffered violence is given justice and special care to bring back to the normal life. Violence is not only a denial of rights to a woman but also an action that bars the woman from the
31 Section 357A-victim compensation scheme. 32 A draft proposal for a national scheme for the relief and rehabilitation of victims of rape has been put forward by the National Commission for Women. See ―Revised Scheme for Relief and Rehabilitation of Victims of Rape,‖ dated April 15, 2010, http://ncw.nic.in/PDFFiles/Scheme_Rape_Victim.pdf.