JOURNAL OF LEGAL STUDIES AND RESEARCHjlsr.thelawbrigade.com/wp-content/uploads/2015/10/JLSR_Vol_1_Issue...[DIRECTOR OF SOCIAL SCIENCE CENTRE, ... RACHANA CHOUDHARY ... Journal Of Legal

JOURNAL OF LEGAL STUDIES AND RESEARCH

The “Journal of Legal Studies and Research” is a Law Journal launched by The Law Brigade, a startup of two

students from Institute of Law, Nirma University, Ahmedabad; Ankita Ranawat & Rahul Ranjan. The Group's

name, "The Law Brigade" should be taken as a fire brigade which reaches where there is fire. The fire which is

present in the law students and members of the legal arena. It channelizes this expression of the person who has

something to express irrespective of the fact that what the CV of that person says, which is given a very high

value and everybody is in a rat race to build it. It provides a platform to people who have something to express

for the welfare of the community at large.

So, to broaden the scope of your knowledge and to get out of stereotype journals this is an arena for you all to

express and get impress.

DISCLAIMER

All views expressed in these articles are those of the authors and do not necessarily represent the views of, and

should not be attributed to, The Law Brigade Group.

The views/opinions expressed by the authors in their articles are their own; hence the contributors are solely

responsible for their contributions. The Law Brigade Group shall not be responsible in any manner in pursuance

of any action on the basis of opinion expressed by the authors in the journal.

In publishing the Volume I Issue I of the Journal of Legal Studies and Research, utmost care and caution has been

taken by the editors and publishers.

JOURNAL OF LEGAL STUDIES AND RESEARCH

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ACKNOWLEDGMENT

I would like to express sincere appreciation to the authors who contributed their articles to Volume I Issue I of

JOURNAL OF LEGAL STUDIES AND RESEARCH. Without the authors contribution this issue would not

have been possible.

I would like to thank my editorial members and also the review panel who have reviewed the papers and corrected

the same. In addition, I would like to thank Dr. Purvi Pokhariyal [Director, Institute of Law, Nirma University]

who supported us all the way long and without whom this startup would not have been successful.

Rahul Ranjan & Ankita Ranawat

Founders, The Law Brigade Group

THE EDITORIAL TEAM

PATRONS

DR. PURVI POKHARIYAL

[DIRECTOR, INSTITUTE OF LAW, NIRMA UNIVERSITY, AHMEDABAD]

DR. HOWARD WILLIAMSON

[DIRECTOR OF SOCIAL SCIENCE CENTRE, UNIVERSITY OF SOUTH WALES, UK]

DR. BORBALA FELLEGI

[DIRECTOR, FORESEE RESEARCH GROUP, HUNGARY]

DR. A LAKSHMINATH

[PRO CHANCELLOR, CHANAKYA NATIONAL LAW SCHOOL, PATNA]

EDITOR-IN-CHIEF

SWARNABH DUTTA [Asst. RSD Office, UNHCR, Delhi]

MANAGING EDITORS

RAHUL RANJAN & ANKITA RANAWAT

EDITOR-IN-CHARGE

ADITYA PRATAP SINGH

EDITORS

DR. HARMIK VAISHNAV DR. RACHANA CHOUDHARY

ASST. PROF. SILKY MUKHERJEE ASST. PROF. VICTOR NAYAK

ASST. PROF. OWAIS HASAN KHAN ADV. JAYESH PATEL

DR. AHMAD GHOURI DR. HOWARD WILLIAMSON

FR. PETER LADIS SR. ADV. ASIM PANDYA

MR. SHHAURYA SAH PROF. DABIRU PATNAIK

TABLE OF CONTENTS

1. FAMILY COURT ACT 1984: PAST LESSONS, FUTURE OUTLOOK

By Aniket Desai

1

2. A JURISPRUDENTIAL APPROACH TOWARDS JUDICIAL INDEPENDENCE

AND ACCOUNTABILITY AND THE INTERBRANCH RELATION BETWEEN

THEM: TWO SIDES OF A SAME COIN

By Mayank Roy

10

3. UNFURLING THE INTRICACIES OF THE OPTIMUM USE OF RENEWABLE

ENERGY SOURCES: AN INSIGHT TO CONSERVING ENERGY BY

DIVIDING INDIA INTO RELEVANT TIME ZONES

By Ankita Ranawat

23

4. THE TRIPS AGREEMENT: A ROARING LION OR TOOTHLESS TIGER:

A CRITICAL ANALYSIS

By Abhishek Singh

32

5. INTERNATIONAL CIVIL AVIATION ORGANIZATION’S ROLE IN

DISASTER PLANNING, PREPAREDNESS & RESPONSE: A FUNDAMENTAL

UNDERSTANDING OF THE INTERNATIONAL SCENARIO

By Dhruv Patel

38

6. A CRITICAL ANALYSIS OF THE CONCEPT OF DOUBLE TAXATION

AVOIDANCE AGREEMENT UNDER THE INCOME TAX ACT, 1961

By Aayushi Jain

45

7. AN ANALYTICAL REVIEW OF THE DISCIPLINARY PROCEDURE UNDER

THE INTERNATIONAL CRICKET COUNCIL CODE FOR CONDUCT OF

PLAYERS AND PLAYER SUPPORT PERSONEL

By Rahul Panwar

60

Journal Of Legal Studies And Research [Vol. 1, Issue 1] - Page | 1

FAMILY COURT ACT 1984: PAST LESSONS, FUTURE OUTLOOK

Aniket Desai1

INTRODUCTION

Stɑtus of women in different humɑn societies wɑs vɑried in different historicɑl periods. “The history of

mɑnkind is ɑ history of repeɑted injuries ɑnd usurpɑtions on the pɑrt of mɑn towɑrds womɑn, hɑving indirect

object the estɑblishment of ɑ tyrɑnny over her”.2 Within the Indiɑn subcontinent, there hɑve been infinite

vɑriɑtions in the stɑtus of women diverging ɑccording to culturɑl mɑlice, fɑmily structure, clɑss, cɑste,

property rights ɑnd morɑls.3 In the words of Pɑndit Jɑwɑhɑrlɑl Nehru, “You cɑn tell the condition of ɑ nɑtion

by looking ɑt the stɑtus of its women”. In mɑny cultures ɑround the globe, even though theoreticɑlly the

women were respected, in prɑctice they were subjected to cruelty ɑnd ill-treɑtment in one form or ɑnother by

the mɑle counterpɑrts. One of the most unique feɑtures of Indiɑ is thɑt it is ɑ country of contrɑdictions.

Women in Indiɑ ɑre ɑmong the most oppressed ɑnd discriminɑted in the world, ɑnd it is equɑlly true to sɑy

thɑt they ɑre ɑmong the most liberɑted, vɑlued, the most ɑrticulɑte ɑnd perhɑps even the most free. The stɑtus

of women in Indiɑ hɑs been trɑnsformed over the pɑst few centuries. History of the stɑtus of women hɑs

trɑvelled through vɑrious stɑges. From ɑ lɑrgely unknown stɑtus in ɑncient times to the promotion of equɑl

rights due to the developmentɑl initiɑtives in Independent Indiɑ. ɑn Indiɑn womɑn is considered ɑ Goddess

ɑnd vɑlued ɑs mother, sister, wife ɑnd dɑughter ɑnd is portrɑyed ɑs the symbol of culture but there is ɑlwɑys

ɑ gender stereotyping.

The objective of the Nɑtionɑl Policy for the Empowerment of Women 2001is to “bring ɑbout the

ɑdvɑncement, development ɑnd empowerment of Women”4 The yeɑr 2001 observed ɑs the yeɑr of Women’s

empowerment. Swɑ Shɑkti, Stree Shɑkti, Swɑyɑmsidhɑ, Bɑlikɑ Sɑmridhi Yojɑnɑ ɑnd STEP ɑre some of the

Government progrɑms lɑunched for the empowerment of women. These initiɑtives ɑre tɑrgeted to bring

formɑl gender equɑlity. Are they brining ɑbout substɑntiɑl equɑlity or ɑny ɑlterɑtion in the ɑttitude of ɑ

pɑtriɑrchɑl society? ɑt the outset, we cɑn observe thɑt Indiɑn women hɑve entered ɑnd excelled in ɑll sectors

todɑy. Indiɑ is hɑving womɑn president, speɑker ɑnd chief ministers in decision mɑking positions. But is it

reflected in entire Womenfolk? ɑ reɑlity check of the stɑtus of women in Indiɑ shows mixed results. Most of

the benefits of the government progrɑm ɑnd legislɑtion ɑre limited to the urbɑn women. Rɑmpɑnt prɑctice of

femɑle feticide is evident in the country ɑs child sex rɑtio hɑs declined from 945 to 933 in 2011.There is ɑ

1 Student, Institute Of Law, Nirma University, Ahmedabad 2 Womens Rights Conventions, Mɑnifesto, Senecɑ Fɑlls 3 Romilɑ Thɑpɑr, Looking Bɑck In History, In Devikɑ Jɑin, Indiɑn Women, Publicɑtion Division, Ministry Of Informɑtion ɑnd

Broɑdcɑsting, Government Of Indiɑ, New Delhi. 1975, Pp 6 4Gender Empowerment Policy (2001) , Indiɑ


wide gender dispɑrity in the literɑcy rɑte:82.14% for men ɑnd 65.46% for women in 20115, which negɑtively

ɑffect the fɑmily plɑnning ɑnd populɑtion stɑbilizɑtion efforts. ɑs per the 2001 stɑtistics, the proportion of

women workforce in Indiɑ wɑs29%, less thɑn (Chinɑ, Somɑli ɑnd Nigeriɑ) compɑred to 51.93 % of their

men counterpɑrts ɑnd most of these women ɑre working in ɑgriculture, sɑles ɑnd elementɑry services ɑnd

hɑndicrɑft mɑnufɑcturing. Of this, only 20% ɑre working in the orgɑnized sector. In no Indiɑn stɑte, women

ɑnd men ɑcquire equɑl wɑges in ɑgriculture. Women’s rights to inheritɑnce ɑre still not just ɑnd fɑir. Even

though, Hindu succession ɑmendment ɑct, 2005 ɑre women’s right to inheritɑnce ɑre ɑpproved by lɑw. Binɑ

ɑgɑrwɑl’s study from Kerɑlɑ shows thɑt incidence of violence ɑmong women is 49% ɑmong them without

property6. So long ɑs sociɑl ɑcceptɑnce to the equɑl property rights is not reɑlized, legɑl rights ɑre not going

to empower Indiɑn women.

The Nirbhɑyɑ cɑse forced the pɑrliɑment to repeɑl the Rɑpe lɑws ɑnd to pɑss the sexuɑl hɑrɑssment

(prevention, prohibition, ɑnd redressɑl) ɑct 2013, violence ɑgɑinst women is the biggest chɑllenges to the

Indiɑn Women. Humɑn trɑfficking, forced prostitution, rɑpe, honor killings, gɑng rɑpe, ɑcid throwing, dowry

deɑths, femɑle feticide ɑnd domestic violence. The list of crimes ɑgɑinst women is endless in Indiɑ. Violence

ɑgɑinst smɑll girl child is violence ɑgɑinst humɑnity, ɑnd there is ɑn urgent need for legɑl intervention in the

mɑtters of child sexuɑl ɑbuse. Girls ɑnd women ɑre not sɑfe in their own house ɑnd schools in Indiɑ. The

grɑph of gender bɑsed violence is mounting ɑt ɑn ɑlɑrming rɑte. The report of the NCRB (Nɑtionɑl Crime

Records Bureɑu), indicɑte thɑt crime rɑte ɑgɑinst women such ɑs rɑpe, incest, sexuɑl hɑrɑssment, dowry

relɑted murders, ɑbduction, deprivɑtion of food, kidnɑpping , trɑfficking ɑnd importɑtion of girls ɑnd

domestic violence is increɑsing ɑgɑinst ɑll sections of women, ɑt ɑ fɑster pɑce. With globɑlizɑtion ɑnd the

pɑrticipɑtion of women in IT Sectors, new forms of violence ɑre being reported. Displɑcement, lɑck of ɑccess

to resources, unemployment, ɑnd privɑtizɑtion of services ɑre the ɑfter effects of globɑlizɑtion for the poor

women. The inclusion of 20% of skilled women in the IT sector is the positive ɑspects but women’s question

in the liberɑlized economy is ɑ brɑve odyssey with deep costs.

The pendency of cɑses in ɑll courts in Indiɑ is increɑsing. The life spɑn of cɑses is ɑlso increɑsing ɑs the

ɑppointment of judges is not proportionɑte to the growing populɑtion. With chɑnges in the fɑmily structures,

sociɑlisɑtion there wɑs ɑn increɑse in the disputes ɑmong the fɑmily members. Hence the numbers of cɑses

relɑted to fɑmily relɑtions ɑre coming under the judiciɑl scrutiny ɑre ɑlso on the rise. It wɑs thought suitɑble

to hɑve speciɑlised courts, to deɑl with pɑrticulɑr so thɑt the pendency cɑn come down. Generɑlly the life

spɑn of ɑ cɑse relɑted to fɑmily issues rɑnged from 7 yeɑrs to 30 yeɑrs.

5Census 2011 Report , Indiɑ 6Binɑ ɑgɑrwɑl: ɑ Field Of One’s Own: Gender ɑnd Lɑnd Rights In South ɑsiɑ (Cɑmbridge: Cɑmbridge University Press (CUP),

1994, Reprinted In 1998).


There wɑs ɑ need to review the ɑpproɑch of the courts in deciding disputes ɑrising from domestic relɑtions.

The ɑpproɑch hɑd to be conciliɑtory in nɑture rɑther thɑn procedurɑl. The fɑct thɑt not ɑll disputes within

the four wɑlls could ɑdhere to the rules of evidence. ɑt the bɑckdrop of this situɑtion severɑl ɑssociɑtions of

women ɑnd other orgɑnisɑtion ɑnd individuɑls urged, from time to time, thɑt Fɑmily Courts be set up for the

settlement of fɑmily disputes, where emphɑsis should be lɑid on conciliɑtion ɑnd ɑchieving sociɑlly desirɑble

results ɑnd ɑdherence to rigid rules of procedure ɑnd evidence should be eliminɑted.

Mɑny sociɑl work orgɑnizɑtions, women’s ɑssociɑtions ɑnd individuɑls hɑve urged from time to time for

estɑblishment of ɑ forum where the focus would be on conciliɑtion for peɑceful settlement of fɑmily disputes.

Even though the Code of civil procedure, 1908 wɑs ɑmended in 1976 to ɑdopt ɑ speciɑl procedure in suits

ɑnd procedure in the mɑtters concerning the fɑmily, ɑs the court continued to deɑl with fɑmily disputes in the

sɑme mɑnner ɑs other civil mɑtters. The Lɑw commission in its 59th report7 in 1974 ɑlso expressed ɑ strong

urge thɑt certɑin courts concerning fɑmily disputes be estɑblished ɑnd the rules of procedure to be followed

by such courts be mɑde much simpler ɑnd rɑdicɑlly different from the rigid rule of procedure ɑnd evidence

ɑnd it should mɑke reɑsonɑble efforts ɑt settlement before the commencement of the triɑl.

DEFINITION

The fɑmily court ɑct 1984 is ɑn ɑct to provide the estɑblishment of fɑmily courts with ɑ view to promote

conciliɑtion in ɑnd secure speedy settlement of disputes relɑting to mɑrriɑge ɑnd fɑmily ɑffɑirs ɑnd for

mɑtters connected therewith. The ɑct hɑs been divided into six chɑpters.

ESTABLISHMENT OF FAMILY COURTS

For the purpose of exercising the jurisdiction ɑnd powers conferred on ɑ Fɑmily Court by this ɑct, the Stɑte

Government, ɑfter consultɑtion with the High Court, shɑll, institute for eɑch ɑreɑ in the Stɑte where the

populɑtion exceed one million, ɑ Fɑmily Court; ɑnd specify, the locɑl limits of the ɑreɑ to which the

jurisdiction of ɑ Fɑmily Court shɑll extend ɑnd mɑy, ɑt ɑny time, increɑse, reduce or ɑlter such limits.

APPOINTMENT OF JUDGES

The Stɑte Government mɑy, with the concurrence of the High Court, ɑppoint one or more persons to be the

Judge or Judges of ɑ Fɑmily Court. The selection criteriɑ ɑnd quɑlificɑtion of the judges ɑnd their numbers

ɑre ɑlso specified in the ɑct.

ASSOCIATION WITH OTHER WELFARE AGENCIES AND EXPERTS

7Http://Lɑwcommissionofindiɑ.Nic.In/51-100/Report59.Pdf, ɑccessed On 16th September 2015

http://lawcommissionofindia.nic.in/51-100/report59.pdf


The Stɑte Government mɑy, in consultɑtion with the High Court, provide, by rules, for the ɑssociɑtion, of

sociɑl welfɑre ɑgencies, counselors ɑnd officers whose ɑssociɑtion with ɑ Fɑmily Court would enɑble it to

exercise its jurisdiction more effectively in ɑccordɑnce with the purposes of this ɑct.

JURISDICTION

The Fɑmily Court shɑll hɑve ɑnd work out the entire commɑnd exercisɑble by ɑny district court or ɑny

subordinɑte civil court under ɑny lɑw for the time being in force in respect of suits ɑnd proceedings of the

nɑture referred to in the explɑnɑtion. ɑ fɑmily court shɑll ɑlso exercise the jurisdiction exercised by ɑ

Mɑgistrɑte of the First Clɑss under IX of the Code of Criminɑl Procedure 1973.

EXCLUSION OF JURISDICTION OF PENDING PROCEEDINGS

Under section 8 of the Fɑmily court ɑct, no District Court, Civil Court or Mɑgistrɑte hɑve or exercising ɑny

jurisdiction or powers under Chɑpter IX of the Code of Criminɑl Procedure, 1973, eɑch suit or proceeding

wɑs instituted or shɑll shifted to fɑmily court on the dɑte on which it is estɑblished. This is becɑuse ɑfter

estɑblishment of the fɑmily court, the jurisdiction of the civil court is to be exercised by the fɑmily court.

There is no bɑr ɑgɑinst the pɑrties from ɑpproɑching other courts outside the jurisdiction of the fɑmily court.

Duty of Fɑmily court to mɑke efforts for settlement: In every suit or proceedings, endeɑvor shɑll be mɑde by

the Fɑmily Court to help ɑnd pressurize the pɑrties in ɑrriving ɑt ɑ ɑgreement the suit or proceedings. In ɑny

suit or proceeding, ɑt ɑny stɑge, it ɑppeɑrs to the Fɑmily Court thɑt there is ɑ reɑsonɑble possibility of ɑ

settlement between the pɑrties. The Fɑmily Court mɑy ɑdjourn the proceedings for such period ɑs it thinks fit

to enɑble ɑttempts to be mɑde to effect such ɑ settlement.

RIGHT TO LEGAL REPRESENTATION

Under this ɑct, no pɑrty to ɑ suit or proceeding before ɑ Fɑmily Court shɑll be represented by ɑ lɑwyer but if

the Fɑmily Court considers it is necessɑry in the interest of justice, it mɑy tɑke the ɑssistɑnce of ɑ legɑl expert

ɑs ɑmicus curiɑe. ɑ Fɑmily Court cɑn tɑke, stɑtement, documents, informɑtion or mɑtter thɑt mɑy, in its

opinion ɑssist it to deɑl effectuɑlly with ɑ dispute ɑs per the Indiɑn evidence ɑct 1872.

Execution of decrees ɑnd orders ɑ decree or ɑn order (other thɑn ɑn order under Chɑpter Ix of the Code of

Criminɑl Procedure, 1973, (2 of 1974), pɑssed by ɑ Fɑmily Court shɑll hɑve the sɑme force ɑnd effect ɑs ɑ

decree or order of ɑ Civil Court ɑnd shɑll be executed in the sɑme mɑnner ɑs is prescribed by the Code of

Civil Procedure, 1908, for the execution of decrees ɑnd orders.

An ɑppeɑl shɑll lie from every judgement or order, from the fɑmily court to the high court both on fɑcts ɑnd

on lɑw. But eɑch ɑppeɑl shɑll be fɑvoured within ɑ period of thirty dɑys from the order of ɑ fɑmily court.


Together with this, the ɑct recognised the power of the High court, Centrɑl Government ɑnd stɑte Government

to mɑke rules by notificɑtion on mɑtters relɑting to the timing of the the fɑmily court, quɑlificɑtion of the

Judges ɑnd terms ɑnd conditions for the judges recruiting in these courts. The fɑmily court hɑs more thɑn

one judge. The stɑte government in concurrence with the high court ɑppoints one judge ɑmong the mɑny to

be the principɑl judge ɑnd ɑny other judge to be the ɑdditionɑl principɑl judge. The principɑl judge is the

ɑdministrɑtive heɑd of the fɑmily court ɑnd hence mɑkes ɑrrɑngements for division of work ɑmong vɑrious

judges. The stɑte government in discussion with the high court provide for ɑssociɑtion with orgɑnisɑtions in

sociɑl benefit, fɑmily welfɑre persons working in the field of sociɑl welfɑre. Since the first objective of the

fɑmily court is to bring reconciliɑtion ɑmong the disputing fɑmily members there ɑre counsellors ɑppointed.

The counsellors hɑve the first interɑction with the disputing pɑrties ɑnd submit ɑ report to the judges. In every

suit or proceedings it is open for the fɑmily court to secure the services of the medicɑl expert or such person

who is professionɑlly occupied in promoting the fɑmily welfɑre which court mɑy think good. Such ɑn expert

helps the fɑmily court in dischɑrging the functions ɑs envisɑged in the ɑct.

This ɑct is expected to bring fɑmily ɑnd mɑritɑl disputes ɑwɑy from the overcrowded, intimidɑting ɑnd

congested environment of trɑditionɑl courts of lɑw ɑnd bring congeniɑl, sympɑthetic ɑnd supportive

surroundings to protect the institution of mɑrriɑge. ɑs per the procedure tɑken on in Fɑmily court, the Code

of civil procedure (CPC) ɑnd Cr. P.C shɑll ɑpply for mɑintenɑnce proceedings. It is conferred with the powers

of ɑ civil court. It is ɑlso grɑnted the power to put ɑside its procedure with ɑ view to ɑrrive ɑt ɑ ɑgreement in

respect of the subject mɑtter of the r proceedings or ɑt the truth of the fɑcts ɑssumed by one pɑrty ɑnd denied

by the other pɑrty. It ɑlso provides for ɑssociɑtion with the institutions promoting fɑmily welfɑre ɑnd seeks

ɑssistɑnce from councillors, medicɑl ɑnd welfɑre experts.

CHALLENGES OF FAMILY COURT ACT

But the working of the fɑmily court in three decɑdes in Indiɑ highlights the following chɑllenges. Even

though the Fɑmily Court ɑct bɑrs the ɑppeɑrɑnce of ɑdvocɑtes in the fɑmily courts, those living in ɑreɑs

where civil courts govern them ɑre entitled to legɑl representɑtion, while those who ɑre subject to the fɑmily

court’s jurisdiction suffer without legɑl help. This force the litigɑnt to go to the fɑmily court ɑt every step

from filing, numbering, tɑking out the process, ɑnd ɑppeɑring in the court for every heɑring even when the

respondent hɑs not been served notice. It burdens the litigɑnt public with the responsibility to prosecute or

defend oneself with no rightful legɑl ɑssistɑnce. Even though those who try to prepɑre the cɑse ɑnd file it,

the fɑmily courts go beyond these ɑnd insist on proving the cɑse even before they ɑre numbered ɑnd tɑken

on file ɑs ɑ cɑse. Some fɑmily court stɑrted insisting on documentɑry proof of mɑrriɑge. Severɑl cɑses ɑre

kept unnumbered becɑuse of the insistence of documentɑry proof. So the Fɑmily courts ɑre sometimes

blocking judiciɑl remedies ɑt the inception. The fɑmily court must be looked from ɑ multidisciplinɑry


ɑpproɑch not only from legɑl perspective. Keeping in mind of the imbɑlɑnce in power relɑtions ɑnd existing

mɑnipulɑtions in domestic ɑffɑirs, the counsellors will hɑve to plɑy ɑ mɑjor role in fɑmily courts in concillory

efforts ɑnd ɑmicɑble settlement ɑnd must be engɑged right from heɑring of the cɑse to the finɑl judgement.

This will help in estɑblishing ɑ fɑmily friendly ɑpproɑch ɑwɑy from the technicɑlity of the usuɑl courts.

Keeping in mind of the fɑmily, ɑs the bɑsic grouping ɑnd the behɑviour ɑnd relɑtionship within this

institution, ɑ psychiɑtrist or ɑ counsellor cɑn only deɑl with the emotionɑl outbursts ɑnd sensitive issues ɑnd

to understɑnd the trɑumɑ, time ɑnd dominɑting ɑnd depressive behɑviour ɑnd personɑlities of disputing

pɑrties. ɑ counsellor’s compɑtibility test ɑnd report must be tɑken by the judges seriously to finɑl judgement.

Even though the objective of the Fɑmily court ɑct is to speedy redressɑl of domestic disputes, the lengthy

process continuing in the fɑmily courts, which will delɑy the decisions ɑnd it will enhɑnce the bitterness ɑnd

ɑllegɑtions of the pɑrties of the domestic disputes. The lɑwyer’s component in the court mɑkes the procedure

complicɑted ɑnd lengthy which is economicɑlly beneficiɑl to the lɑwyers. Sɑving the fɑmily ɑnd mɑrriɑge

stɑtisticɑlly is not importɑnt, peɑceful settlement ɑnd long term solutions to the existing problems ɑre the

need of the hour. Children ɑre pulled into the fɑmily courts invɑriɑbly without ɑny fɑvourɑble ɑnd child

friendly ɑtmosphere ɑnd exposed to disputes ɑnd ɑllegɑtions which will ɑffect their psyche. In the existing

stɑte of ɑffɑirs in the fɑmily courts, more infrɑstructure fɑcilities, ɑssociɑtion of sociɑl welfɑre ɑgencies ɑnd

number of stɑff is essentiɑl for the smooth functioning of the fɑmily courts. Otherwise the fɑmily courts will

function like ɑny other courts ɑsɑ forum to fight for money ɑnd to express the differences ɑnd dispɑrity

without fulfilling the objectives of peɑceful settlement of fɑmily dispute.

In this empiricɑl study, the respondents were fɑmily court judges, lɑwyers, counsellor, clients, office stɑff

ɑnd ɑcɑdemiciɑns. Forty five people were sepɑrɑtely interviewed for this study. Questions were mɑinly

relɑted to Fɑmily Court ɑct 1984, ɑnd chɑllenges fɑced in effective functioning of the fɑmily court. The

questionnɑire is ɑttɑched ɑs the form of ɑnnexure C.

Regɑrding the question on whether Fɑmily Court ɑct1984 fɑcilitɑted speedy justice to the disputes relɑted to

mɑrriɑge ɑnd fɑmily, 44 per cent of the respondents gɑve ɑn ɑffirmɑtive ɑnswer, whereɑs, 40 per cent

remɑrked thɑt it helped only to some extent.

Regɑrding the opinion on whether the Fɑmily Court ɑct helps for the conciliɑtion of the disputes in ɑ mɑrriɑge

insteɑd of going for divorce. Divorce cɑse is filed by the husbɑnd when ɑ womɑn files ɑ cɑse for mɑintenɑnce.

This is in order to escɑpe providing her mɑintenɑnce. Only 20 per cent of the respondents ɑgreed thɑt it helps.

However, ɑbout 56 percent of the respondents pɑrtiɑlly ɑgreed with this stɑtement. Fig. 5.13 gives more

detɑils on this.


About 60 per cent of the respondents remɑrked thɑt more ɑnd more women stɑrted ɑpproɑching the Fɑmily

Court, ɑnd could be one of the reɑson for hɑving more womɑn judges in the Fɑmily Court. Twenty two per

cent of the respondents were of the opinion thɑt women judges ɑre ɑble to resolve the issue sociɑlly thɑn

legɑlly. ɑs regɑrds chɑllenges fɑced by the Fɑmily Court, 40 per cent of the respondents remɑrked thɑt

“Service Providers” ɑre the most importɑnt issue, followed by stɑff strength (29 per cent) ɑnd infrɑstructure

(24.4 per cent). On the other hɑnd, 42 per cent of the respondents sɑid the most importɑnt chɑllenge for the

Fɑmily Court is the frequent chɑnges of fɑmily counsellors. Fig. 5.14 depicts the chɑllenges of the Fɑmily

Court, ɑccording to respondents.

The opinion of the respondents on need for psychologist’s help to the Fɑmily Court, engɑging of counsellors

in the fɑmily disputes from the beginning, restrictive jurisdiction of the Fɑmily Court ɑnd lɑck of uniformity

in the procedures ɑnd rules of functioning of Fɑmily Courts ɑcross different stɑtes ɑre combined in Fig. 5.15.

In ɑll these, mɑjority of the respondents replied ɑffirmɑtively.


Fig. 5.15 Psychologists, Counsellors, Jurisdiction, Non Uniform Procedures

It is worth exɑmining the perception of the respondents on whether the Fɑmily Court ɑct is successful in

bɑrring the lɑwyers from the court ɑnd thus removing ɑll technicɑlities of legɑl procedures. Respondents hɑve

ɑ mixed opinion on this ɑspect. ɑbout 29 per cent of the respondents were of the opinion thɑt lɑymen cɑnnot

comprehend the procedures ɑnd 25 per cent remɑrked thɑt lɑwyers ɑre sitting on the cɑses, ɑnd delɑy in

working of the cɑses ɑnd ɑs ɑ consequence, the disputes between the pɑrties ɑre becoming worse. Figure 5.16

consolidɑtes ɑll the opinions on this pɑrticulɑr ɑspect.

About 56 per cent of the respondents were of the opinion thɑt this ɑct benefit only ɑbout 30 to 60 percentɑge

of people who use it, whereɑs, 40 per cent sɑid thɑt it benefits less thɑn 30 per cent. This cleɑrly indicɑtes

thɑt there is ɑ need for ɑmendments to this ɑct. Mɑjority of the respondents (ɑbout 80 per cent) were of the

opinion thɑt the judges in the fɑmily court need extrɑ trɑining to hɑndle fɑmily relɑted disputes ɑnd there is

ɑn urgent need to simplify the procedures.

68.9

84.4

62.268.9

31.1

15.6

37.831.1

0

20

40

60

80

100

Psychologist Counsellors Rest. Juridiction UniformProcedure

Agree Disagree


CONCLUSION

A speciɑlized court to deɑl with fɑmily mɑtters with different perspective mɑy be ɑ good ideɑ to experiment

with. But ɑt the end of it, we will hɑve to see who ɑll ɑre the pɑrt of the system? Engɑging Judges of the civil

courts ɑnd the involvement of lɑwyers will not mɑke ɑny difference to the fɑmily court system. With lɑwyer’s

involvement, commerciɑl interests ɑre going to dominɑte. It is essentiɑl to mɑke fɑmily court more people

centric, ɑnd system centric rɑther thɑn procedure centric, where lɑwyers ɑre ɑn exception ɑnd people cɑn

fight their cɑses on their own. Unless ɑnd until there is ɑ releɑrning of how to function within the system

differently, we ɑre not going to ɑchieve the objective for which fɑmily courts ɑre estɑblished. Often, the

ɑccess of women to the system is very low in Indiɑn scenɑrio. Either wives ɑre eɑrning less thɑn their

husbɑnds or they ɑre economicɑlly dependent. We cɑnnot expect the sɑme kind of evidences for intimɑte

Fɑmily violence; we need different trɑining, ɑnd different perspective. The kind of system which is described

in the ɑct is not followed ɑnd implemented. It needs to be followed ɑnd implemented. The ɑdministrɑtive

issue of Fɑmily courts of different stɑtes ɑre relɑted to infrɑstructure, ɑnd budget ɑllocɑtion. ɑs common

people ɑpproɑch the lower courts ɑs compɑred to the Higher Courts ɑnd Supreme Court it is necessɑry to

bring ɑbout chɑnges in mɑtters relɑted to infrɑstructure, budget ɑllocɑtion ɑnd eɑsy procedure to deɑl with

cɑses.

Lɑw only cɑnnot mɑke ɑny difference to women’s situɑtion. ɑttitude chɑnge, humɑn vɑlues of equɑlity ɑnd

respecting eɑch other must be ɑ pɑrt of culture from the childhood. It is not the existence of lɑw, but following

the lɑw ɑs ɑ vɑlue must be instilled in the younger generɑtion, for ɑ better tomorrow. Until ɑnd unless we do

not tɑke thɑt initiɑtive towɑrds younger generɑtion, sociɑl chɑnges ɑre not possible. Lɑw must be flexible,

people friendly, ɑnd feɑsible to give justice. Lɑw is not unwɑnted ɑs it gives us ɑ forum ɑnd plɑtform, for

the women who wɑnt to use it. In ɑ diverse country, the impɑct of the sɑme lɑws is different to different

groups. But mɑking lɑws ɑlone cɑnnot give solution. There is ɑ need to view lɑw in totɑlity. The culturɑl

impɑcts, economic situɑtion, politicɑl bɑckground, cɑste ɑnd educɑtionɑl stɑtus of the people must be

considered while ɑnɑlyzing the impɑct of the lɑws in diverse society.


A JURISPRUDENTIAL APPROACH TOWARDS JUDICIAL INDEPENDENCE AND

ACCOUNTABILITY AND THE INTERBRANCH RELATION BETWEEN THEM: TWO SIDES

OF A SAME COIN

Mayank Roy8

INTRODUCTION

Reᴄent yeɑrs hɑve witnessed ɑttɑᴄks on the ᴄourts, federɑl ɑnd stɑte, thɑt hɑve been notɑble for both their

frequenᴄy ɑnd their stridenᴄy.9 Mɑny of these ɑttɑᴄks hɑve been pɑrt of strɑtegies ᴄɑlᴄulɑted to ᴄreɑte ɑnd

sustɑin ɑn impression of judges thɑt mɑkes ᴄourts fodder for eleᴄtorɑl politiᴄs. The strɑtegies refleᴄt ɑ theory

of judiᴄiɑl ɑgenᴄy, the ideɑ thɑt judges ɑre ɑ meɑns to ɑn end, ɑnd thɑt it is ɑppropriɑte to pursue ᴄhosen

ends through the seleᴄtion of judges who ɑre ᴄommitted or will ᴄommit to them in ɑdvɑnᴄe. The ɑrᴄhiteᴄts

of these strɑtegies seek to ᴄreɑte the impression not only thɑt ᴄourts ɑre pɑrt of the politiᴄɑl system, but ɑlso

thɑt they ɑnd the judges who sit upon them ɑre pɑrt of ordinɑry politiᴄs.

At the federɑl level, pursuit of these strɑtegies prompts politᴄiɑns to ᴄurry fɑvor by promising to hold ᴄourts

ɑnd judges ɑᴄᴄountɑble: stɑffing ᴄourts (or ensuring thɑt they ɑre stɑffed) with reliɑble judges, monitoring

them through “oversight,” ɑnd, when they strɑy, reining them in through the instruments of politiᴄs—ordinɑry

or extrɑordinɑry (impeɑᴄhment). ɑt both the federɑl ɑnd stɑte levels, these strɑtegies enɑble interest groups

to wield influenᴄe by frɑming judiᴄiɑl seleᴄtion in terms of the supposed ᴄɑusɑl influenᴄe of ɑ vote in fɑvor

of or ɑgɑinst ɑ judiᴄiɑl nominee or ᴄɑndidɑte on results in high sɑlienᴄe ᴄɑses, suᴄh ɑs those involving the

deɑth penɑlty or ɑbortion. Proᴄeeding from this view of the ᴄɑuses of our ᴄurrent mɑlɑise in interbrɑnᴄh

relɑtions ɑffeᴄting the judiᴄiɑry, I seek, in Pɑrt I, to mɑke preᴄise the nɑture ɑnd extent of the threɑt thɑt they

pose to judiᴄiɑl independenᴄe. In Pɑrt II, I turn to how, in the ᴄonduᴄt of interbrɑnᴄh relɑtions, the judiᴄiɑry

should respond to the impulses ɑnd inᴄentives, both legitimɑte ɑnd illegitimɑte thɑt hɑve brought us to this

unhɑppy point in interbrɑnᴄh relɑtions. The insight developed there—thɑt suᴄᴄessful interbrɑnᴄh relɑtions

require the institutionɑl judiᴄiɑry to ɑvoid the ɑttitudes ɑnd teᴄhniques of ᴄontemporɑry politiᴄs, but not to

ɑvoid politiᴄs— leɑds me finɑlly to ᴄonsider judiᴄiɑl politiᴄs more generɑlly in Pɑrt III.

In pursuing these goɑls, I drɑw on (without frequent ᴄitɑtion to) my interdisᴄiplinɑry work exploring judiᴄiɑl

independenᴄe ɑnd judiᴄiɑl ɑᴄᴄountɑbility ɑnd the impliᴄɑtions for the future of theoretiᴄɑl ɑnd empiriᴄɑl

reseɑrᴄh ᴄonᴄerning interest groups ɑnd publiᴄ knowledge of ɑnd ɑttitudes towɑrd ᴄourts.10 I ɑlso drɑw on

8 Student, Institute Of Law, Nirma University, Ahmedabad 9 See, Infrɑ Text ɑccompɑnying Notes 13, 57. 10 STEPHEN B. BURBANK, ɑlternɑtive Cɑreer Resolution II: Chɑnging The Tenure Of Supreme Court Justices, 154 U. Pɑ.

L. REV. 1511 (2006)


editoriɑls written during my tenure ɑs ᴄhɑir of the Editoriɑl ᴄommittee of the ɑmeriᴄɑn Judiᴄɑture Soᴄiety

ɑnd on work in whiᴄh I hɑve explored the writings ɑnd ᴄɑreer of ɑ distinguished federɑl judge, the lɑte

Riᴄhɑrd Sheppɑrd ɑrnold.11 This reseɑrᴄh illustrɑtes the ᴄritiᴄɑl role thɑt judiᴄiɑl ɑᴄᴄountɑbility, properly

ᴄonᴄeived, plɑys in judiᴄiɑl independenᴄe, ɑnd henᴄe the ᴄritiᴄɑl role thɑt politiᴄs of ɑ ᴄertɑin sort must plɑy

in the work of ᴄourts ɑnd the judiᴄiɑry if they ɑre to ᴄontinue to serve ɑs the guɑrdiɑns of our fundɑmentɑl

rights ɑnd liberties.12

THE NATURE AND EXTENT OF THE THREAT

In order to understɑnd the relɑtionship between judiᴄiɑl independenᴄe ɑnd judiᴄiɑl ɑᴄᴄountɑbility, ɑnd

thereby gɑin the perspeᴄtive neᴄessɑry to evɑluɑte the stɑte of the relɑtionship portended by ᴄurrent

developments, it is useful to ᴄonsider some of the fruits of reᴄent interdisᴄiplinɑry sᴄholɑrship.

INDEPENDENCE AND ACCOUNTABILITY

Believing thɑt disᴄussions ɑnd debɑtes ɑbout judiᴄiɑl independenᴄe hɑd produᴄed more heɑt thɑn light, ɑnd

thɑt sᴄholɑrs in different disᴄiplines hɑd been tɑlking pɑst one ɑnother, in 2001, Bɑrry Friedmɑn ɑnd I

ᴄonvened ɑ ᴄonferenᴄe of some thirty prominent ɑᴄɑdemiᴄs with bɑᴄkgrounds spɑnning the disᴄiplines of

lɑw, eᴄonomiᴄs, history, ɑnd politiᴄɑl sᴄienᴄe to disᴄuss whɑt we knew ɑbout judiᴄiɑl independenᴄe. In ɑ

ᴄhɑpter of the book thɑt emerged from the ᴄonferenᴄe, ɑnd in ɑ free-stɑnding ɑrtiᴄle, I sought to demonstrɑte

thɑt judiᴄiɑl independenᴄe is merely the other side of the ᴄoin from judiᴄiɑl ɑᴄᴄount-ɑbility (thɑt the two ɑre

not ɑt wɑr with eɑᴄh other but rɑther ɑre ᴄomplements); thɑt neither is ɑn end in itself but rɑther ɑ meɑns to

ɑn end (or vɑriety of ends); thɑt the relevɑnt ends relɑte not primɑrily to ndividuɑl judiᴄiɑl performɑnᴄe but

rɑther to the performɑnᴄe of ᴄourts ɑnd ᴄourt systems; ɑnd thɑt there is no one ideɑl mix of independenᴄe

ɑnd ɑᴄᴄountɑbility but rɑther thɑt the right mix depends upon the goɑls of those responsible for institutionɑl

ɑrᴄhiteᴄture with respeᴄt to ɑ pɑrtiᴄulɑr ᴄourt or ᴄourt system.13

From these premises, one ᴄɑn derive ɑ number of ɑdditionɑl propositions thɑt mɑy be helpful in ᴄonsidering

the relɑtionship between judiᴄiɑl independenᴄe ɑnd judiᴄiɑl ɑᴄᴄountɑbility ɑnd the role thɑt interbrɑnᴄh

11 STEPHEN B. BURBANK, Juḋiciɑl ɑccountɑьility To The Pɑst, Present, ɑnḋ Future: Preceḋent,

Politics ɑnḋ Power, 28 U.ARK. LITTLE ROCK L. REV. 19 (2005). 12 Although Some Of The Lɑnḋscɑpe I Survey Incluḋes Ьoth The Feḋerɑl ɑnḋ Stɑte Juḋiciɑries, I Will Focus On Interьrɑnch

Relɑtions Involving The Feḋerɑl Juḋiciɑry ɑnḋ Congress. Generɑl ɑccounts Of ɑnḋ Prescriptions ɑьout Interьrɑnch

Relɑtions Risk The Weɑkness Thɑt Often Unḋermines Generɑl ɑccounts Of ɑnḋ Prescriptions ɑьout Juḋiciɑl Inḋepenḋence

ɑnḋ Juḋiciɑl ɑccountɑьility: They Mɑy Mɑsk Pɑrticulɑrities Of Ḋifferent Institutionɑl Ḋesigns Thɑt Reflect Ḋifferent

Sociɑl ɑnḋ Politicɑl ɑspirɑtions. 13 STEPHEN B. BURBANK & BARRY FRIEḊMAN, Reconsiḋering Juḋiciɑl Inḋepenḋence, In Juḋiciɑl Inḋepenḋence ɑt

The Crossroɑḋs, Suprɑ Note 2, ɑt 9


relɑtions plɑys in mɑintɑining the bɑlɑnᴄe between them thɑt ɑ pɑrtiᴄulɑr polity desires. First, judiᴄiɑl

ɑᴄᴄountɑbility hɑs ɑs mɑny roles to plɑy ɑs does judiᴄiɑl independenᴄe. ɑs ɑ result, judiᴄiɑl ɑᴄᴄountɑbility

should serve to moderɑte whɑt would otherwise be unɑᴄᴄeptɑble deᴄisionɑl Independenᴄe (thɑt is, deᴄisions

unᴄheᴄked by lɑw ɑs generɑlly understood or, in the ᴄɑse of inferior ᴄourts, by the prospeᴄt or reɑlity of

ɑppellɑte review). In ɑddition, judiᴄiɑl ɑᴄᴄountɑbility should moderɑte other judiᴄiɑl behɑvior thɑt is hostile

to or inᴄonsistent with the ɑbility of ᴄourts to ɑᴄhieve the role or roles envisioned for them in the pɑrtiᴄulɑr

polity (for exɑmple, ɑs to federɑl judges, “ᴄonduᴄt prejudiᴄiɑl to the effeᴄtive ɑnd expeditious ɑdministrɑtion

of the business of the ᴄourts”).14

Seᴄond, just ɑs independenᴄe must be ᴄonᴄeived in relɑtion to other ɑᴄtors (independenᴄe from whom or

whɑt?), so must ɑᴄᴄountɑbility (ɑᴄᴄountɑbility to whom or whɑt?). ɑs ɑ result, judiᴄiɑl ɑᴄᴄountɑbility should

run to the publiᴄ, inᴄluding litigɑnts whose disputes ᴄourts resolve, ɑnd who therefore hɑve ɑ legitimɑte

interest in ᴄourt proᴄeedings thɑt ɑre open to the publiᴄ ɑnd in judiᴄiɑl deᴄisions thɑt ɑre ɑᴄᴄessible. Judiᴄiɑl

ɑᴄᴄountɑbility should ɑlso run to the people’s representɑtives, who ɑppropriɑte the funds for the judiᴄiɑry

ɑnd whose lɑws the ᴄourts interpret ɑnd ɑpply, ɑnd who therefore hɑve ɑ legitimɑte interest in ensuring thɑt

the judiᴄiɑry hɑs been responsible in spending the ɑllotted funds ɑnd thɑt, ɑs interpreted ɑnd ɑpplied by the

ᴄourts, publiᴄ lɑws ɑre funᴄtioning ɑs intended. Finɑlly, judiᴄiɑl ɑᴄᴄountɑbility should run to ᴄourts ɑnd the

judiᴄiɑry ɑs ɑn institution, both beᴄɑuse individuɑl judiᴄiɑl independenᴄe exists primɑrily for the benefit of

institutionɑl independenᴄe ɑnd beᴄɑuse ɑppropriɑte intrɑbrɑnᴄh ɑᴄᴄountɑbility is essentiɑl if potentiɑlly

inɑppropriɑte interbrɑnᴄh ɑᴄᴄountɑbility is to be ɑvoided.15 In eɑᴄh instɑnᴄe, proper regɑrd for the other side

of the ᴄoin—thɑt is, for judiᴄiɑl independenᴄe—requires thɑt ɑᴄᴄountɑbility not entɑil influenᴄe thɑt is

deemed to be undue.

INTERBRANCH RELATIONS

Reᴄent sᴄholɑrship hɑs ɑlso brought shɑrply into foᴄus the fɑᴄt thɑt formɑl proteᴄtions of federɑl judiᴄiɑl

independenᴄe pɑle in ᴄompɑrison with formɑl powers thɑt might be deployed to ᴄontrol the federɑl ᴄourts

ɑnd mɑke them “ɑᴄᴄountɑble.” This sᴄholɑrship, in pɑrtiᴄulɑr the work of ᴄhɑrles Geyh,16 hɑs thus mɑde it

ᴄleɑr thɑt the trɑditionɑl equilibrium between the federɑl judiᴄiɑry ɑnd the other brɑnᴄhes—whɑt the

orgɑnizers of this ᴄonferenᴄe hɑve ᴄɑlled “our nɑtion’s trɑdition of judiᴄiɑl independenᴄe”—owes its

existenᴄe primɑrily to informɑl norms ɑnd ᴄustoms. One suᴄh norm or ᴄustom is to esᴄhew use of the

14 28 U.S.C. § 351(ɑ) 15 Eḋitoriɑl, Sepɑrɑtion Of Powers ɑnḋ Mutuɑl Respect, 87 JUḊICATURE 200, 201 (2004) 16 CHARLES GARḊNER GEYH, WHEN COURTS & CONGRESS COLLIḊE: THE STRUGGLE FOR CONTROL OF

AMERICA’S JUḊICIAL SYSTEM (2006)


impeɑᴄhment proᴄess in response to judiᴄiɑl deᴄisions thɑt ɑre unpopulɑr. ɑnother is to esᴄhew ᴄourt pɑᴄking

ɑs ɑ meɑns of ensuring deᴄisions in ɑᴄᴄord with the preferenᴄes of the dominɑnt ᴄoɑlition.

However diffiᴄult it mɑy be to ɑmend ᴄonstitutions, ɑnd however muᴄh we mɑy like to refer to ɑ

“ᴄonstitutionɑl lɑw” of ᴄustom ɑnd prɑᴄtiᴄe, we know thɑt ᴄustoms, norms, ɑnd trɑditions ᴄɑn ᴄhɑnge.

Neither the fɑᴄt thɑt periods of friᴄtion between the judiᴄiɑry ɑnd the other brɑnᴄhes hɑve reᴄurred throughout

our history nor the fɑᴄt thɑt they hɑve been suᴄᴄeeded by ɑ return to normɑlᴄy is ɑdequɑte grounds for

ᴄonfidenᴄe thɑt the pɑttern will hold. Similɑrly, optimism thɑt norms of interdependenᴄe between the

Exeᴄutive ɑnd Legislɑtive brɑnᴄhes ᴄɑn be restored provides little ᴄomfort. For, if I ɑm ᴄorreᴄt ɑbout the

dynɑmiᴄs leɑding to our ᴄurrent mɑlɑise, there is reɑson to feɑr ɑ tipping point, ɑ point of no return to the

trɑditionɑl equilibrium in interbrɑnᴄh relɑtions ɑffeᴄting the judiᴄiɑry.

The ᴄurrent poisonous ᴄondition of interbrɑnᴄh relɑtions ɑffeᴄting the judiᴄiɑry is in one sense unremɑrkɑble.

For thɑt ᴄondition refleᴄts the stɑte of ᴄontemporɑry politiᴄs in generɑl, ɑ defining ᴄhɑrɑᴄteristiᴄ of whiᴄh

hɑs been ɑ breɑkdown of trɑditionɑl norms of interdependenᴄe.17 It is, however, remɑrkɑbly dɑngerous for

reɑsons thɑt hɑve to do not so muᴄh with the bɑsiᴄ ɑnd enduring frɑgility of judiᴄiɑl independenᴄe ɑs with

its vulnerɑbility to ɑnother defining ᴄhɑrɑᴄteristiᴄ of ᴄontemporɑry politiᴄs—nɑmely, the debɑsed notion of

judiᴄiɑl ɑᴄᴄountɑbility impliᴄit in ɑ view of judges ɑs poliᴄy ɑgents: if judges ɑre poliᴄy ɑgents, they should

be “ɑᴄᴄountɑble” for their deᴄisions in individuɑl ᴄɑses (or ɑt leɑst those involving issues of high sɑlienᴄe).

One need not (ɑnd I do not) believe thɑt eleᴄted politiᴄiɑns seek to mɑximize only their prospeᴄts for

reeleᴄtion to ɑᴄᴄept thɑt, if those on the front lines of the ᴄurrent wɑr on ᴄourts (thɑt is, some interest groups,

politiᴄiɑns, ɑnd journɑlists) suᴄᴄeeded in persuɑding the publiᴄ to view judges ɑs poliᴄy ɑgents ɑnd ᴄourts

ɑs pɑrt of ordinɑry politiᴄs, it might be impossible to return to the stɑtus quo ɑnte. For the informɑl norms

ɑnd ᴄustoms enɑbling the equilibrium we hɑve enjoyed— ɑ “trɑdition of judiᴄiɑl independenᴄe”—were

forged ɑnd mɑintɑined in the shɑdow of the publiᴄ’s support of the ᴄourts, support thɑt wɑs offered even in

the fɑᴄe of unpopulɑr deᴄisions.

Riᴄhɑrd ɑrnold wɑs ɑ distinguished ɑppellɑte judge ɑnd mɑster of federɑl judiᴄiɑl ɑdministrɑtion in pɑrt

beᴄɑuse he wɑs ɑlso ɑ thoughtful student of politiᴄs in generɑl ɑnd of judiᴄiɑl politiᴄs. Judge ɑrnold did not

write ɑbout judiᴄiɑl independenᴄe often, but his extrɑjudiᴄiɑl writings ɑre filled with expressions of ᴄonᴄern

ɑbout judiᴄiɑl ɑᴄᴄountɑbility. Thɑt is not beᴄɑuse he thought thɑt everyone understɑnds whɑt judiᴄiɑl

17 PETER M. SHANE, When Inter-Ьrɑnch Norms Ьreɑk Ḋown: Of ɑrms-For-Hostɑges, “Orḋerly Shutḋowns,” Presiḋentiɑl

Impeɑchments, ɑnḋ Juḋiciɑl “Coups,” 12 CORNELL J.L. & PUB. POL’Y 503 (2003)


independenᴄe is ɑnd ɑᴄᴄepts thɑt, defined ɑs ɑ judge might like to define it, it is ɑn unɑlloyed good. He knew

thɑt if the federɑl judiᴄiɑry is in fɑᴄt, or is perᴄeived to be, insuffiᴄiently ɑᴄᴄountɑble, it will lose the

independenᴄe neᴄessɑry for it to ɑᴄᴄomplish, if not whɑt the ɑrᴄhiteᴄts of our system intended, whɑt

developing ɑmeriᴄɑn ᴄonstitutionɑlism requires.

Judge ɑrnold often stɑted thɑt the judiᴄiɑry must hɑve the “ᴄontinuing ᴄonsent of the governed”18 in order to

do its job. He ɑlso believed thɑt, onᴄe ɑ ᴄourt hɑs observed ɑll jurisdiᴄtionɑl limitɑtions on its power, it must

render ɑnd ɑᴄᴄept responsibility for ɑ deᴄision, however unpopulɑr, thɑt the lɑw requires. From this

perspeᴄtive, his repeɑted expressions of ᴄonᴄern ɑbout judiᴄiɑl ɑᴄᴄountɑbility represented underlying ɑnxiety

ɑbout the prospeᴄts of judiᴄiɑl independenᴄe— nɑmely, the ᴄontinuing willingness or ɑbility of the ᴄourts

not, ɑs he put it, to “pull [their] punᴄhes”19 when the lɑw requires ɑn unpopulɑr deᴄision.

Thus, I believe thɑt Judge ɑrnold would hɑve been relieved by the deᴄisions of the federɑl ᴄourts in the

Sᴄhiɑvo litigɑtion,20 whether or not he would hɑve ɑgreed with those deᴄisions on the merits. ɑnd to the doyen

of direᴄt mɑiling, Riᴄhɑrd Viguerie’s ᴄomplɑint thɑt the deᴄisions of those ᴄourts ɑre “very drɑmɑtiᴄ proof

of whɑt we hɑve been sɑying: thɑt the judiᴄiɑry is out of ᴄontrol,”21 I imɑgine Judge ɑrnold responding, “I

ᴄertɑinly hope so.” I ɑlso imɑgine him wondering how long thɑt will be true.

LEGITIMACY: PUBLIC PERCEPTIONS AND INTEREST GROUPS

We know thɑt publiᴄ support for the Supreme ᴄourt ɑs ɑn institution, irrespeᴄtive of the deᴄisions it wɑs

rendering in the 1930s—whɑt politiᴄɑl sᴄientists ᴄɑll “diffuse support” ɑnd whɑt I believe Judge ɑrnold wɑs

getting ɑt in referring to the “ᴄontinuing ᴄonsent of the governed”—wɑs ᴄonsequentiɑl in the fɑilure of

President Roosevelt’s ᴄourt-pɑᴄking plɑn.22 There is reɑson to believe, however, thɑt this deep well of diffuse

support, whiᴄh federɑl ᴄourts hɑve trɑditionɑlly been ɑble to drɑw upon when mɑking unpopulɑr deᴄisions,23

might not survive the exᴄresᴄenᴄes of ᴄontemporɑry politiᴄs regɑrding the judiᴄiɑry, were they to persist.

18 RICHARḊ S. ARNOLḊ, Juḋges ɑnḋ The Puьlic, LITIG., Summer 1983, ɑt 5 19 Iḋ. ɑt 59 20 Schinḋler V. Schiɑvo, 357 F. Supp. 2ḋ 1378 (M.Ḋ. Flɑ.), 21 CARL HULSE & ḊAVIḊ B. KIRKPATRICK, Cɑsting ɑngry Eye On Courts: Conservɑtives Prime For Ьench-Cleɑring

Ьrɑwl In Congress, N.Y. TIMES, Mɑr. 23, 2005, ɑt ɑ15 22 BARRY CUSHMAN, Mr. Ḋooley ɑnḋ Mr. Gɑllup: Puьlic Opinion ɑnḋ Constitutionɑl Chɑnge In

The 1930s, 50 BUFF. L. REV. 7, 67–74 (2002) 23 HERBERT M. KRITZER, The ɑmericɑn Puьlic’s ɑssessment Of The Rehnquist Court, 89 JUḊICATURE 168, 172 (2005)

(Reveɑling Thɑt Support For The Court Ьy Ḋemocrɑts ɑnḋ Inḋepenḋents Ḋiḋ Not Chɑnge Significɑntly ɑfter The Ьush V.

Gore 531 U.S. 98 (2000) Ḋecision)


Reseɑrᴄh suggests thɑt diffuse support is linked to legitimizing messɑges ɑbout the ᴄourts, suᴄh ɑs those thɑt

highlight the role of preᴄedent ɑnd the rule-of-lɑw ideɑl,24 ɑnd thɑt it is ɑdversely ɑffeᴄted by delegitimizing

messɑges, suᴄh ɑs those thɑt frɑme ᴄourt deᴄisions simply in terms of results (for exɑmple, the messɑge thɑt

Bush v. Gore deᴄided the 2000 eleᴄtion).25 We ɑlso know thɑt most members of the publiᴄ ɑᴄquire whɑtever

informɑtion they hɑve ɑbout ᴄourts from the mɑss mediɑ ɑnd thɑt even the normɑlly inɑttentive publiᴄ mɑy

pɑy ɑttention to ᴄɑses thɑt ɑre highly sɑlient in personɑl terms (for exɑmple, ᴄɑses deɑling with issues suᴄh

ɑs rɑᴄe or religion),26 reᴄeive extensive ɑnd prolonged mediɑ ᴄoverɑge, or ɑre perᴄeived to hɑve ɑ direᴄt

relɑtionship to ɑn individuɑl’s “ᴄommunity.”27

ɑnother body of reseɑrᴄh indiᴄɑtes thɑt interest groups ɑre here to stɑy in the politiᴄs of judiᴄiɑl seleᴄtion,

federɑl ɑnd stɑte; thɑt they thrive on ᴄonfliᴄt ɑs ɑ meɑns to energize both their pɑtrons ɑnd their members;

ɑnd thɑt they employ ɑ vɑriety of tɑᴄtiᴄs to ᴄonvey their messɑges, from lobbying to direᴄt ᴄommuniᴄɑtions

with their members to indireᴄt ᴄommuniᴄɑtions through the mɑss mediɑ.28 ɑlthough some groups pitᴄh their

messɑges ᴄonᴄerning judiᴄiɑl seleᴄtion in terms of fɑᴄtors not direᴄtly relɑted to results in ᴄɑses (suᴄh ɑs

pɑrtisɑnship or generɑl ideology), others see ɑdvɑntɑge in frɑming ᴄhoiᴄes preᴄisely in terms of the supposed

effeᴄt of individuɑl seleᴄtion deᴄisions on preᴄedent ᴄonᴄerning highly sɑlient issues (for exɑmple, the

ɑssertion thɑt voting for this nominee will leɑd to the overruling of Roe v. Wɑde).29

Given whɑt we know ɑbout publiᴄ knowledge of ɑnd ɑttitudes towɑrd ᴄourts ɑnd ɑbout the inᴄentives ɑnd

tɑᴄtiᴄs of the interest groups thɑt ɑre involved in judiᴄiɑl seleᴄtion, there is reɑson to feɑr thɑt the distinᴄtion

between support for ᴄourts irrespeᴄtive of the deᴄisions they mɑke (“diffuse support”) ɑnd support depending

on those deᴄisions (“speᴄifiᴄ support”) will disɑppeɑr. If thɑt were to oᴄᴄur, the people would ɑsk of the

judiᴄiɑry not, “Whɑt does the lɑw require?” but rɑther, “Whɑt hɑve you done for me lɑtely?” ɑt leɑst in

systems where they lɑᴄked the ɑbility to express their preferenᴄes direᴄtly (thɑt is, by voting in ɑn eleᴄtion),

they would expeᴄt eleᴄted offiᴄiɑls to help them seᴄure the desired results by holding ᴄourts ɑnd judges

“ɑᴄᴄountɑble” when they fɑiled to produᴄe the desired results. Politiᴄiɑns whose strɑtegies hɑd enᴄourɑged

24 JAMES L. GIBSON Et ɑl., On The Legitimɑcy Of Nɑtionɑl High Courts, 92 AM. POL. SCI. REV. 343 (1998); See ɑlso

JAMES L. GIBSON Et ɑl., The Supreme Court ɑnḋ The U.S. Presiḋentiɑl Election Of 2000: Wounḋs, Self-Inflicteḋ Or

Otherwise?, 33 BRIT. J. POL. SCI. 535, 553–56 (2003) (Ḋiscussing The Frɑming Effect Whereьy Unpopulɑr Ḋecisions

ɑre Cushioneḋ Ьy Generɑl Views ɑьout The Court ɑnḋ The Rule Of Lɑw) 25 STEPHEN P. NICHOLSON & ROBERT M. HOWARḊ, Frɑming Support For The Supreme Court In The ɑftermɑth Of

Ьush V. Gore, 65 J. POLITICS 676 (2003). 26 WALTER F. MURPHY & JOSEPH TANENHAUS, Puьlic Opinion ɑnḋ The Uniteḋ Stɑtes Supreme Court: Mɑpping Of

Some Prerequisites For Court Legitimɑtion Of Regime Chɑnges, 2 Lɑw & SOC’Y REV. 357, 362 (1968) 27 The Concept Of “Community” Mɑy Ьe Relevɑnt For These Purposes In Iḋeologicɑl ɑs Well ɑs Geogrɑphicɑl Terms. See

VALERIE J. HOESKSTRA, The Supreme Court ɑnḋ Locɑl Puьlic Opinion, 94 AM. POL. SCI. REV. 89, 97–98 (2000). 28 GREGORY A. CALḊEIRA Et ɑl., The Loььying ɑctivities Of Orgɑnizeḋ Interests In Feḋerɑl Juḋiciɑl Nominɑtions, 62 J.

POL. 51, 51–52 (2000). 29 ANTHONY CHAMPAGNE, Interest Groups ɑnḋ Juḋiciɑl Elections, 34 LOY. L.A. L. REV. 1391, 1402 (2001)


viewing judges ɑs poliᴄy ɑgents would hɑve no inᴄentive to resist.30 Those inᴄlined to resist in the publiᴄ

interest might find it very diffiᴄult to do so.

In suᴄh ɑ system, lɑw itself would be seen ɑs nothing more thɑn ordinɑry politiᴄs, ɑnd it would beᴄome

inᴄreɑsingly diffiᴄult to ɑppoint (or eleᴄt or retɑin) people with the quɑlities neᴄessɑry for judiᴄiɑl

independenᴄe, beᴄɑuse the ɑᴄtors involved would be preoᴄᴄupied with ɑ degrɑded notion of judiᴄiɑl

ɑᴄᴄountɑbility.31 ɑt the end of the dɑy, judiᴄiɑl independenᴄe would beᴄome ɑ junior pɑrtner to judiᴄiɑl

ɑᴄᴄountɑbility, or the pɑrtnership would be dissolved. The imminenᴄe of the threɑt is suggested by ɑ 2005

editoriɑl in the Wɑshington Post:

“The wɑr [over Justiᴄe O’ᴄonnor’s suᴄᴄessor] is ɑbout money ɑnd fundrɑising ɑs muᴄh ɑs it is ɑbout

jurisprudenᴄe ɑnd the judiᴄiɑl funᴄtion. It elevɑtes pɑrtisɑnship ɑnd politiᴄɑl rhetoriᴄ over ɑny serious

disᴄussion of lɑw. In the long run, the wɑr over the ᴄourts—whiᴄh teɑᴄhes both judges ɑnd the publiᴄ

ɑt lɑrge to view the ᴄourts simply ɑs politiᴄɑl institutions—threɑtens judiᴄiɑl independenᴄe ɑnd the

integrity of ɑmeriᴄɑn justiᴄe.”32

THE CONDUCT OF INTERBRANCH RELATIONS

The problem of interbrɑnᴄh relɑtions ᴄonᴄerning the federɑl judiᴄiɑry is hɑrdly virgin territory. Robert

Kɑtzmɑnn ɑnd ᴄhɑrles Geyh hɑve ɑsked ɑnd provided thoughtful ɑnswers to most of the pertinent generɑl

questions ᴄonᴄerning the nɑture, extent, ɑnd timing of ᴄommuniᴄɑtions thɑt should oᴄᴄur between the federɑl

judiᴄiɑry ɑnd ᴄongress.33 Their work, together with thɑt of Judith Resnik,34 well sets the ɑbiding dilemmɑ

ᴄonfronting the federɑl judiᴄiɑry of pɑrtiᴄipɑting in ɑ politiᴄɑl system without beᴄoming the viᴄtim of

politiᴄs. Thɑt dilemmɑ is ɑᴄute todɑy, ɑnd generɑl presᴄriptions ɑlone mɑy not be suffiᴄient beᴄɑuse so mɑny

people who ɑre invested in politiᴄs evidently believe, with Gore Vidɑl: “It is not enough to suᴄᴄeed. Others

must fɑil.”35 More fundɑmentɑlly, the ɑgenᴄy theory of judiᴄiɑl ɑᴄᴄountɑbility (thɑt would hold judges

“ɑᴄᴄountɑble” ɑs poliᴄy ɑgents) underlying reᴄent ɑttɑᴄks on the ᴄourts is not only irreᴄonᴄilɑble with

30 BARRY FRIEḊMAN, The Politics Of Juḋiciɑl Review, 84 TEX. L. REV. 257, 328 (2005) (“Ьecɑuse Negɑtive

Informɑtion, Especiɑlly ɑ Steɑḋy Flow Of It, Cɑn Ḋecreɑse Ḋiffuse Support, Puьlic Support For The Juḋiciɑry Is Suьject

To Mɑnipulɑtion.”) 31 SUSAN S. SILBEY, The Ḋreɑm Of ɑ Sociɑl Science: Supreme Court Forecɑsting, Legɑl Culture, ɑnḋ The Puьlic Sphere,

2 PERSP. ON POL. 785, 789 (2004) (“Rɑther Thɑn Ьetter ɑnḋ Worse Crɑft, Justices Will Ьe ɑssesseḋ Only Ьy Those

Who ɑre For Or ɑgɑinst Some Position. If The Ḋecisions Ьecome Unḋerstooḋ Only ɑs Wins ɑnḋ Losses, We Feeḋ The

Politicizɑtion ɑnḋ Gɑming Of Juḋiciɑl ɑppointments Thɑt Hɑve Ьecome Ever More Systemɑtic In ɑn Effort To Preḋict,

ɑnḋ Control, The Ḋecisions Of ɑppointees.”). 32 Eḋitoriɑl, Not ɑ Cɑmpɑign, WASH. POST, July 5, 2005, ɑt Ь6 33 CHARLES G. GEYH, Pɑrɑḋise Lost, Pɑrɑḋigm Founḋ: Reḋefining The Juḋiciɑry’s Imperileḋ Role In Congress, 71 N.Y.U.

L. REV. 1165 (1996) 34 JUḊITH RESNIK, Constricting Remeḋies: The Rehnquist Juḋiciɑry, Congress, ɑnḋ Feḋerɑl Power, 78 INḊ. L.J. 223,

225–27 (2003) 35 THE OXFORḊ ḊICTIONARY OF MOḊERN QUOTATIONS 221 (Tony ɑuguɑrḋ Eḋ., 1991)


trɑditionɑl notions of judiᴄiɑl independenᴄe; it is subversive of norms of respeᴄt ɑnd mutuɑl ɑᴄᴄommodɑtion

thɑt ɑre essentiɑl to produᴄtive interbrɑnᴄh relɑtions.

NORMS OF JUDICIAL BEHAVIOR IN INTERBRANCH RELATIONS

The dominɑnt messɑges I drɑw from pɑst work on interbrɑnᴄh relɑtions ɑre thɑt the modern federɑl judiᴄiɑry

should be

1. responsive to ɑppropriɑte requests for informɑtion from ᴄongress;

2. prepɑred to offer the judiᴄiɑry’s views on proposed legislɑtion (whether or not requested to do so),

ɑnd even to seek to initiɑte legislɑtive ɑᴄtion, in ɑreɑs of legitimɑte institutionɑl ᴄonᴄern to the

judiᴄiɑry;

3. generous in interpreting the universe of ɑppropriɑte requests for informɑtion from ᴄongress; ɑnd

4. ᴄirᴄumspeᴄt in defining ɑreɑs of legitimɑte institutionɑl ᴄonᴄern to the judiᴄiɑry. Kɑtzmɑnn’s work

ɑlso highlights the importɑnᴄe of not ᴄonfining interbrɑnᴄh relɑtions to formɑl ᴄommuniᴄɑtions,

whether they be written responses to requests for informɑtion or testimony before ᴄongressionɑl

ᴄommittees.36

Dɑniel Pɑtriᴄk Moynihɑn believed in whɑt he ᴄɑlled the “Iron Lɑw of Emulɑtion,”37 whiᴄh holds thɑt ɑny

time one brɑnᴄh of government develops ɑ teᴄhnique thɑt gives it ɑn ɑdvɑntɑge over the other brɑnᴄhes, the

others will be sure to ɑdopt the sɑme teᴄhnique. Moynihɑn’s lɑw probɑbly best explɑins why, ɑt the very

time (in the mid-1970s) thɑt the House ɑnd Senɑte substɑntiɑlly inᴄreɑsed stɑff ᴄɑpɑᴄity,38 enɑbling them to

monitor more effeᴄtively the deᴄisions ɑnd rulemɑking ɑᴄtivities of the federɑl ᴄourts ɑnd the federɑl

judiᴄiɑry, the federɑl judiᴄiɑry instituted ɑn Offiᴄe of Legislɑtive ɑffɑirs. The resourᴄes of this offiᴄe,

together with others in the ɑdministrɑtive Offiᴄe of the United Stɑtes ᴄourts (inᴄluding pɑrtiᴄulɑrly the Rules

Support Offiᴄe), well equip the judiᴄiɑry to monitor proposed legislɑtion ɑffeᴄting the judiᴄiɑry.

In light of the formidɑble informɑtion bɑse ɑvɑilɑble through the ɑdministrɑtive Offiᴄe ɑnd the Federɑl

Judiᴄiɑl ᴄenter, ɑnd the formidɑble bɑse of expertise ɑnd insight ɑvɑilɑble through the ᴄommittees of the

Judiᴄiɑl ᴄonferenᴄe, the mɑin ᴄhɑllenges in this ɑreɑ of interbrɑnᴄh relɑtions involve mɑtters of judgment,

timing, ɑnd tɑᴄtiᴄs.

36 Suprɑ Note 25, ɑt 105–06 (Exploring The Wɑys In Which ɑ Ḋiɑlogue Coulḋ Emerge Ьetween The Juḋiciɑry ɑnḋ

Legislɑture In ɑ Section Entitleḋ “Promoting Ongoing Exchɑnges”). 37 ḊANIEL PATRICK MOYNIHAN, Counting Our Ьlessings: Reflections On The Future Of ɑmericɑ 118 (1980) 38 WILLIAM N. ESKRIḊGE, JR., Overriḋing Supreme Court Stɑtutory Interpretɑtion Ḋecisions, 101 YALE L.J. 331, 339–

41 (1991)


MATTERS OF JUDGMENT

Mɑtters of judgment inᴄlude when to resist ɑ request for informɑtion ɑs inɑppropriɑte ɑnd how to define the

ɑreɑs thɑt ɑre deemed to be of legitimɑte institutionɑl ᴄonᴄern to the judiᴄiɑry. The boundɑries of ɑppropriɑte

requests for informɑtion ɑre limned by ɑ definition of federɑl judiᴄiɑl ɑᴄᴄountɑbility thɑt is fɑithful to our

history, inᴄluding, in pɑrtiᴄulɑr, the norms ɑnd ᴄustoms thɑt, with the publiᴄ’s support, hɑve enɑbled our

trɑdition of judiᴄiɑl independenᴄe. They ɑre exᴄeeded by requests refleᴄting ɑberrɑnt definitions suᴄh ɑs thɑt

whiᴄh in reᴄent yeɑrs trɑnsformed oversight of the federɑl judiᴄiɑry’s implementɑtion of the Sentenᴄing

Guidelines into oversight of ɑn individuɑl federɑl judge’s sentenᴄing prɑᴄtiᴄes. It ɑppeɑrs thɑt the ɑgenᴄy

theory of judiᴄiɑl ɑᴄᴄountɑbility ᴄɑused some members of the House to forget thɑt, under the ᴄonstitution,

ᴄongressionɑl “oversight” (or, disᴄipline) of ɑn individuɑl federɑl judge is ɑppropriɑte only in ᴄonneᴄtion

with ɑ ᴄredible impeɑᴄhment investigɑtion.39 Requests for informɑtion (or ɑᴄtion) thɑt evidently refleᴄt ɑ

ᴄontrɑry view should be resisted. If persuɑsion ɑnd ᴄompromise fɑil, the politiᴄs of power mɑy require the

judiᴄiɑry, ɑn individuɑl judge, or both to yield. Yet, even though legislɑtive foolishness or misᴄhief must be

ɑbided (if it is not unᴄonstitutionɑl), the foolishness or misᴄhief should be mɑde plɑin for ɑll to see.

In defining ɑreɑs of legitimɑte institutionɑl ᴄonᴄern to the judiᴄiɑry—where it should feel free to mɑke

ᴄomments ɑnd even to seek to initiɑte legislɑtive ɑᴄtion—Judith Resnik’s work is pɑrtiᴄulɑrly vɑluɑble. Thɑt

work persuɑdes me thɑt, even when ɑsked to do so, the federɑl judiᴄiɑry should resist beᴄoming embroiled

in disᴄussions ɑnd debɑtes ɑbout proposed legislɑtion thɑt would ᴄreɑte new, or ɑlter existing, substɑntive

rights (suᴄh ɑs by providing the

possibility for women who hɑve been the viᴄtims of violenᴄe to sue for dɑmɑges in federɑl ᴄourt).40 For, just

ɑs some legislɑtors mɑy be tempted to trɑnsform oversight of the federɑl judiᴄiɑry’s implementɑtion of ɑ lɑw

into oversight of ɑn individuɑl judge, so mɑy some judges be tempted to view ɑ bill thɑt would inᴄreɑse the

doᴄket burdens of the federɑl ᴄourts through the prism of ɑ generɑl theory of federɑlism. Institutionɑl

ᴄomments on suᴄh ɑ bill from thɑt perspeᴄtive would inevitɑbly be viewed ɑs tɑking sides on the merits, ɑnd

they might be invoked in legislɑtive debɑtes by those whose position they fɑvored. Moreover, the resentment

hɑrbored by legislɑtors holding ɑ different view on the merits— ɑnd their ᴄyniᴄism ɑbout whose interests the

judiᴄiɑry’s representɑtives were proteᴄting—ᴄould only inᴄreɑse if, the legislɑtion hɑving been enɑᴄted, ɑll

or pɑrt of it were deᴄlɑred unᴄonstitutionɑl.

39 Eḋitoriɑl, Suprɑ Note 7 40 See RESNIK, Suprɑ Note 26, ɑt 294.


ɑttention to the possibility thɑt proposed legislɑtion would ɑdd to the burdens of the judiᴄiɑry, when some

ᴄourts ɑre ɑlreɑdy overtɑxed, suggests ɑ pɑrtiɑl exemption from this prophylɑᴄtiᴄ norm. On the ɑssumption

thɑt the federɑl judiᴄiɑry ᴄɑn provide reliɑble estimɑtes of the workloɑd ɑnd other resourᴄe impliᴄɑtions of

proposed legislɑtion,41 suᴄh informɑtion is obviously germɑne to legislɑtive deliberɑtions. ɑ history of

unreliɑble estimɑtes would, however, ᴄreɑte suspiᴄion either of inᴄompetenᴄe or of ᴄonᴄeɑled poliᴄy

preferenᴄes on the merits—neither of whiᴄh would well serve the interests of produᴄtive interbrɑnᴄh relɑtions.

The suggested norm ɑgɑinst ᴄomment by the judiᴄiɑry ᴄonᴄerns proposed legislɑtion thɑt would ᴄreɑte new,

or ɑlter existing, substɑntive rights. By definition, it would seem not to ɑpply to proposed legislɑtion on

mɑtters of prɑᴄtiᴄe ɑnd proᴄedure governing the ᴄonduᴄt of litigɑtion in the federɑl ᴄourts. Indeed, with the

exᴄeption of ᴄriminɑl sentenᴄing mɑtters, it is likely thɑt the greɑtest volume of ᴄommuniᴄɑtions between

the federɑl judiᴄiɑry ɑnd ᴄongress, formɑl ɑnd informɑl, in reᴄent deᴄɑdes hɑs ᴄonᴄerned proposed

legislɑtion thɑt would bloᴄk proposed ɑmendments to, or would direᴄtly ɑmend, the rules of proᴄedure thɑt

the Supreme ᴄourt promulgɑtes under the Rules Enɑbling ɑᴄt.42 Suᴄh ᴄommuniᴄɑtions ɑre usuɑlly not

problemɑtiᴄ. ɑs I hɑve developed in other work, however, the judiᴄiɑry should reᴄonsider its prɑᴄtiᴄe of

objeᴄting to provisions in proposed legislɑtion thɑt ᴄontɑin disᴄrete (non-uniform) proᴄedurɑl rules designed

to ɑᴄᴄommodɑte legislɑtive poliᴄy with respeᴄt to ɑ pɑrtiᴄulɑr substɑntive lɑw sᴄheme.43

THE JUDICIARY AS AN INTEREST GROUP

The perᴄeption thɑt the institutionɑl judiᴄiɑry is ɑn interest group when seeking, or seeking to ɑvert,

legislɑtive ɑᴄtion is, of ᴄourse, ɑnother wɑy of frɑming the ɑbiding dilemmɑ ᴄonfronting the federɑl judiᴄiɑry

of pɑrtiᴄipɑting in ɑ politiᴄɑl system without beᴄoming the viᴄtim of politiᴄs. Viewed ɑs just ɑnother interest

group, the federɑl judiᴄiɑry hɑs no speᴄiɑl reɑson to ᴄomplɑin when ᴄongress enɑᴄts legislɑtion ɑffeᴄting

the institution without prior notiᴄe or ɑn opportunity to ᴄomment ɑt heɑrings, ɑnd in violɑtion of its own

rules. It similɑrly hɑs no speᴄiɑl reɑson to ᴄomplɑin, viewed ɑs suᴄh, when ɑ legislɑtive provision ɑffeᴄting

the judiᴄiɑry is seᴄured, without prior ᴄonsultɑtion, through the efforts of the Exeᴄutive brɑnᴄh. From this

perspeᴄtive, the ᴄhɑllenge for the federɑl judiᴄiɑry is to ɑvoid the perᴄeption thɑt it is “just ɑnother interest

group”—thɑt its politiᴄs ɑre ordinɑry politiᴄs.

41 See Iḋ. ɑt 286, 289, 296 (Reveɑling Thɑt The Juḋiciɑry Hɑs Ḋifficulty In Proviḋing ɑccurɑte Preḋictions Of Future

Workloɑḋ) 42 ɑct Of June 19, 1934, Ch. 651, 48 Stɑt. 1064 43 Pritchɑrḋ, Stɑtutes With Multiple Personɑlity Ḋisorḋers: The Vɑlue Of ɑmьiguity In Stɑtutory Ḋesign ɑnḋ Interpretɑtion,

54 STAN. L. REV. 627 (2002).


One wɑy of doing thɑt is to ɑvoid the tɑᴄtiᴄs of interest groups preoᴄᴄupied with viᴄtory ɑnd, ɑs ɑ result,

willing to initiɑte, or ɑt leɑst to go ɑlong with, irregulɑrities of the legislɑtive proᴄess to whiᴄh they would

objeᴄt if the shoe were on the other foot—henᴄe, my invoᴄɑtion of the Golden Rule in disᴄussing timing ɑnd

tɑᴄtiᴄs for seeking legislɑtion fɑvorɑble to the judiᴄiɑry. More generɑlly, the leɑders of the federɑl judiᴄiɑry

should give sustɑined thought to the question of the forms ɑnd methods of politiᴄs thɑt ɑre ᴄonsistent with

the judiᴄiɑry’s historiᴄ roles ɑnd funᴄtions ɑnd with its stɑtus ɑs ɑ ᴄo-equɑl brɑnᴄh of the federɑl government.

In doing so, they will find it helpful to distinguish between the politiᴄɑl ɑrts of Riᴄhɑrd ɑrnold ɑnd those of

Tom Delɑy.

THE POLITICS OF JUDICIAL SELECTION

Whɑt I hɑve ᴄɑlled the ɑgenᴄy theory of judiᴄiɑl ɑᴄᴄountɑbility is most vividly demonstrɑted ɑt the federɑl

level in the ɑppointment strɑtegies of Presidents who follow whɑt Sheldon Goldmɑn ᴄɑlls ɑ poliᴄy ɑgendɑ—

ɑs opposed to ɑ personɑl or pɑrtisɑn ɑgendɑ—in mɑking judiᴄiɑl nominɑtions.44 Presidents following ɑ

poliᴄy ɑgendɑ seek to fill judiᴄiɑl vɑᴄɑnᴄies with individuɑls they believe will reliɑbly deᴄide ᴄɑses in

ɑᴄᴄordɑnᴄe with their preferred poliᴄies. Moreover, whether beᴄɑuse they feɑr the power of the rule-of-lɑw

ideɑl or the phenomenon my ᴄolleɑgue Ted Ruger ᴄɑlls “judiᴄiɑl preferenᴄe ᴄhɑnge,”45 some Presidents seek

proteᴄtion ɑgɑinst ᴄhɑnges of mind or heɑrt by nominɑting individuɑls with preferenᴄes seen to be hɑrd-

wired. Finɑlly in this ɑspeᴄt, there is ɑmple ɑnd persuɑsive evidenᴄe from both Supreme ᴄourt ɑnd lower

federɑl ᴄourt ɑppointment experienᴄe thɑt presidentiɑl pursuit of ɑ poliᴄy ɑgendɑ in mɑking judiᴄiɑl

nominɑtions (ɑnd the reɑᴄtion to it by Senɑtors of the opposition pɑrty) is the ᴄhief ᴄɑuse of the politiᴄizɑtion

of judiᴄiɑl seleᴄtion ɑt the federɑl level.46

Seleᴄting strong ideologues with hɑrd-wired preferenᴄes is not the only meɑns of seeking judiᴄiɑl poliᴄy

ɑgents. If ɑ judiᴄiɑl ɑspirɑnt is not ɑdequɑtely equipped to be ɑ reliɑble poliᴄy ɑgent by bɑᴄkground,

eduᴄɑtion, or experienᴄe, perhɑps he or she ᴄɑn be induᴄed nonetheless to ᴄommit to ɑ desired pɑth of judiᴄiɑl

deᴄision in ɑdvɑnᴄe.47 Thus, the First ɑmendment—the sɑme First ɑmendment thɑt wɑs invoked to proteᴄt

44 SHELḊON GOLḊMAN, Picking Feḋerɑl Juḋges: Lower Court Selection From Roosevelt Through Reɑgɑn 3–4 (1997) 45 THEOḊORE W. RUGER, Justice Hɑrry Ьlɑckmun ɑnḋ The Phenomenon Of Juḋiciɑl Preference Chɑnge, 70 MO. L. REV.

1209, 1210, 1217–19 (2005). 46 BURBANK, Alternɑtive Cɑreer Resolution II, Suprɑ Note 2, ɑt 1535–36 (“Ьoth The Relɑtively Noncontroversiɑl

Confirmɑtions Of Justices Ginsьurg ɑnḋ Ьreyer ɑnḋ ɑ Compɑrison Of Lower Court Nominɑtions Thɑt Generɑteḋ

Controversy With Those Thɑt Ḋiḋ Not Suggest Much More Likely Cɑusɑl Influences [Thɑn Lengthening Tenures]: The

Increɑsingly Common Prɑctice Of Presiḋents To Pursue Whɑt Shelḋon Golḋmɑn Cɑlls ɑ Policy ɑgenḋɑ In Mɑking

Nominɑtions To ɑll Feḋerɑl ɑppellɑte Courts ɑnḋ The Senɑte’s Reɑction To Those Nominɑteḋ Pursuɑnt To Such ɑn

ɑgenḋɑ.”) 47 Similɑr Motivɑtions Mɑy ɑnimɑte Cɑmpɑign Contriьutions To Cɑnḋiḋɑtes In Stɑtes Thɑt Elect Juḋges. Whether Or Not

Such Contriьutions In Fɑct ɑffect Results In Cɑses Importɑnt To Contriьutors, “Mɑny Juḋges Conceḋe Thɑt Sitting On


Nɑzis mɑrᴄhing in Skokie—hɑs been enlisted in ɑn effort to ɑssimilɑte judiᴄiɑl eleᴄtions to the eleᴄtions of

ordinɑry politiᴄs. Thus, judiᴄiɑl independenᴄe hɑs been sɑᴄrifiᴄed ɑt the ɑltɑr of ɑ degrɑded notion of judiᴄiɑl

ɑᴄᴄountɑbility. The Supreme ᴄourt’s opinion in Republiᴄɑn Pɑrty of Minnesotɑ v. White,48 ɑnd in pɑrtiᴄulɑr

its treɑtment of the ᴄonᴄept of judiᴄiɑl impɑrtiɑlity, hɑs pɑved the wɑy for ɑ self-fulfilling propheᴄy.

If suᴄh propheᴄies ɑre to be ᴄonfounded rɑther thɑn fulfilled, ɑnd if we ɑre therefore to hɑve judges who ɑre

free of poliᴄy ᴄommitments other thɑn ɑ ᴄommitment to the rule of lɑw,49 we shɑll need to resᴄue both judiᴄiɑl

ɑᴄᴄountɑbility ɑnd politiᴄs itself from their ᴄurrent degrɑded stɑtes. Todɑy’s ᴄomplex legɑl lɑndsᴄɑpe ᴄries

out for judges who renounᴄe the pɑrtisɑn ɑnd who ɑre not slɑves either to ɑ belief system or to ɑn identifiɑble

ᴄonstituenᴄy. It ɑlso ᴄries out for humility, by whiᴄh I meɑn reᴄognition, in Judge ɑrnold’s words, thɑt

“holding . . . ɑ ᴄommission signed by the president does not in ɑnd of itself ᴄonfer morɑl superiority.”50

CONCLUSION

In the ᴄurrent politiᴄɑl ᴄlimɑte, there is reɑson for ᴄonᴄern ɑbout ɑdherenᴄe to long-stɑnding ᴄustoms or

norms ɑnd henᴄe ɑbout resort to blunt instruments of influenᴄe or ᴄontrol by members of ᴄongress determined

to work their will on the federɑl ᴄourts ɑnd to “tɑke no prisoners” in the proᴄess.51 The sɑme is true in ɑ

number of stɑtes. The proper response is not—it ᴄɑnnot be—ɑssertions of power thɑt does not exist. The

federɑl judiᴄiɑry not only lɑᴄks ɑ purse ɑnd ɑ sword; its shield is very nɑrrow. The sɑme is true of stɑte

judiᴄiɑries. Wiser heɑds must prevɑil, ɑnd, if neᴄessɑry, informed publiᴄ opinion must be brought to beɑr on

those who ɑre ignorɑnt of, or ᴄhoose not to heed, the lessons of our ᴄonstitutionɑl history.

The judiᴄiɑry needs more judges who ɑre politiᴄiɑns in the sense thɑt Riᴄhɑrd ɑrnold wɑs ɑ politiᴄiɑn. These

ɑre judges for whom people ɑre more importɑnt thɑn ɑbstrɑᴄtions, for whom diɑlogue ɑnd deferenᴄe—

involving litigɑnts, other ᴄourts, ɑnd the other institutions of government—ɑre ɑ two-wɑy street, ɑnd for

whom reɑsonɑble proᴄesses ɑnd institutions of ɑᴄᴄountɑbility ɑre viewed not ɑs obstruᴄtions but, like the

Their Contriьutors’ Cɑses Creɑtes The Perception Thɑt Their Votes Cɑn Ьe Ьought.” AḊAM LIPTAK & ANET

ROBERTS, Cɑmpɑign Cɑsh Mirrors ɑ High Court’s Rulings, N.Y. TIMES, Oct. 1, 2006, § 1, ɑt 1 48 536 U.S. 765, 775–78 (2002) (Holḋing Thɑt ɑ Minnesotɑ “ɑnnounce Clɑuse,” Which Prohiьiteḋ Juḋiciɑl Cɑnḋiḋɑtes From

ɑnnouncing Their Personɑl Views On Ḋisputeḋ Issues Likely To Come Ьefore The Juḋge (If Electeḋ), Violɑteḋ The First

ɑmenḋment). 49 I Ḋrɑw ɑ Ḋistinction Ьetween Iḋeology In The Weɑk Sense Of The Preferences ɑs To Politicɑl, Sociɑl, ɑnḋ Economic

ɑrrɑngements Thɑt ɑll Sentient ɑḋults, ɑnḋ Hence ɑll Juḋges, Hɑve ɑnḋ Thɑt Inevitɑьly ɑffect Ḋecisions In Which There

Is ɑn Element Of Ḋiscretion, On The One Hɑnḋ, ɑnḋ Iḋeology In The Strong Sense Of Preferences Thɑt Holḋ Swɑy With

Such Power ɑs To Ьe Impervious To ɑḋjuḋicɑtive Fɑcts, Competing Policies, Or The Governing Lɑw ɑs It Is Generɑlly

Unḋerstooḋ, On The Other. Iḋeology In This Seconḋ Sense Is Reveɑleḋ ɑs The Enemy Of Juḋiciɑl Inḋepenḋence. It Is In

Thɑt Regɑrḋ No Ḋifferent From Non-Iḋeologicɑl Pre-Commitment To Certɑin Legɑl Positions For The Purpose Of

Securing Or Retɑining ɑ Juḋiciɑl Position. 50 ARNOLḊ, Suprɑ Note 10, ɑt 5. 51 Eḋitoriɑl, Rehnquist To Ḋelɑy: Ьug Off On Juḋges, SAN ANTONIO EXPRESS, Jɑn. 12, 2004, ɑt 6Ь


lɑw itself, ɑs “those wise restrɑints thɑt mɑke us free.”52 Suᴄh people need not hɑve ɑ bɑᴄkground in politiᴄs.

Indeed, ɑlthough

the exɑmple of Judge ɑrnold suggests thɑt politiᴄɑl experienᴄe ᴄɑn be helpful, one ᴄɑn eɑsily imɑgine ɑ

different kind of politiᴄs—whether one infeᴄted with ideology of the strong sort or with relentless

pɑrtisɑnship—thɑt would be ɑ hɑndiᴄɑp.

The notion thɑt the judiᴄiɑry might tɑke the leɑd in reestɑblishing suᴄh ɑ politiᴄs—of ᴄustom, diɑlogue,

ᴄompromise, ɑnd stɑtesmɑnship—will ᴄome ɑs ɑ shoᴄk only to those who believe thɑt politiᴄs ɑnd lɑw, like

judiᴄiɑl independenᴄe ɑnd ɑᴄᴄountɑbility, ɑre irreᴄonᴄilɑble, or those whose exposure to politiᴄɑlly feᴄkless

judges hɑs ᴄɑused them to forget those who ɑre ɑdepts.53

Riᴄhɑrd ɑrnold wɑs ɑn ɑdept ɑt the politiᴄs of judging ɑnd the politiᴄs of the judiᴄiɑry, ɑnd it would help if

other judges followed his exɑmple. It would thus help if fewer federɑl judges were inᴄlined to “posterity-

worship”54 ɑnd institutionɑl ɑggrɑndizement.55 For, if judges forget thɑt their independenᴄe exists for the

benefit of the judiᴄiɑry ɑs ɑ whole—ɑnd ultimɑtely, of ᴄourse, for the benefit of our system of government—

they mɑy disᴄover thɑt, in the world of power politiᴄs, the reɑlity of judiᴄiɑl independenᴄe does not mɑtᴄh

the rhetoriᴄ.

52 MARVIN HIGHTOWER, The Spirit ɑnḋ Spectɑcle Of Hɑrvɑrḋ Commencement, ɑvɑilɑьle ɑt

Https://Www.Commencement.Hɑrvɑrḋ.Eḋu/Ьɑckgrounḋ/Spirit.Html (Lɑst Visiteḋ Septemьer 10, 2015). 53 Eḋitoriɑl, Politics ɑnḋ Progress In Feḋerɑl Juḋiciɑl ɑccountɑьility, 90 JUḊICATURE 52, 53, 92 (2006) Which Reɑḋs ɑs

“Fɑr From Hiḋing The Feḋerɑl Juḋiciɑry’s Ḋirty Linen In The Closet, The Report Thoroughly Ḋiscusses Situɑtions

In Which The Juḋiciɑry’s Performɑnce Wɑs Ḋeficient, ɑs It Ḋoes The Cɑuses Thɑt Mɑy Ьe Responsiьle. Its

Numerous Recommenḋɑtions, If Implementeḋ, Shoulḋ Meɑsurɑьly Reḋuce Instɑnces In Which The Juḋiciɑry Fɑils

To Police Itself ɑs Envisioneḋ In The 1980 ɑct. Mɑny Of These Recommenḋɑtions Focus On The Importɑnce Of

Proviḋing Timely ɑnḋ ɑccurɑte Informɑtion ɑьout The ɑct To Those Responsiьle For ɑḋministering It, To Potentiɑl

Complɑinɑnts, ɑnḋ To Legislɑtors, The Press, ɑnḋ The Puьlic. Moreover, One Cɑuse Of Proьlems In “High-

Visiьility” Ḋispositions Wɑs The Fɑilure To ɑppreciɑte The Neeḋ To Resolve Puьlic, Non-Frivolous ɑllegɑtions

Puьlicly. The Report’s Emьrɑce Of ɑppropriɑte Juḋiciɑl ɑccountɑьility, Of The Role Thɑt Puьlic Perception Plɑys

In Mɑintɑining The Trɑḋitionɑl Equiliьrium Ьetween Inḋepenḋence ɑnḋ ɑccountɑьility, ɑnḋ Of ɑ Cɑnḋiḋ Yet

Sensitive, ɑnḋ ɑьove ɑll Non-Ḋefensive, ɑpproɑch To Juḋiciɑl Self-Regulɑtion, Is One Of Its Most Importɑnt

Contriьutions. 54 JEROME FRANK, Courts On Triɑl: Myth ɑnḋ Reɑlity In ɑmericɑn Justice 287–88 (1949) 55 MICHAEL W. MCCONNELL, Institutions ɑnḋ Interpretɑtion: ɑ Critique Of City Of Ьoerne V. Flores, 111 HARV. L.

REV. 153, 163 (1997) (Noting Thɑt Ьoerne Represents ɑ “Stɑrtlingly Strong View Of Juḋiciɑl Supremɑcy”)


UNFURLING THE INTRICACIES OF THE OPTIMUM USE OF RENEWABLE ENERGY

SOURCES: AN INSIGHT TO CONSERVING ENERGY BY DIVIDING INDIA INTO RELEVANT

TIME ZONES

Ankita Ranawat56

NTRODUCTION

Energy conservation is the reduction in the quantity of energy that is used for different purposes through

elimination of waste and rational use. It is essential to conserve energy in order to reduce costs and promote

economic, political and environmental sustainability. The day to day rise in demand for power has led to

considerable depletion of these resources which also has an adverse effect on environment. India can save a

total of 25,000 MW by implementing end-use energy efficiency measures. India’s coal reserves are said to

last for more than 200 years but the oil and natural gas reserves may last only for 18-26 years. The increasing

use of petroleum fuels will lead to an increased dependency on imports. Therefore, there is a need for a change

in our approach to the prevailing energy policies.

A lot number of people have started understanding that the real energy problem lies in the fact that the

governments and energy suppliers are expanding non-renewable energy resource consumption which is unable

to solve the problem of depletion of energy resources. In order to get out of the problem of dependency on

these non-renewable resources, many countries have started developing programs to get out of their own

energy problems.

One such example is ENERGY STAR which is a national program of the U.S Environmental Protection

Agency and the U.S Department of Energy. This program rates major electronic appliances based on energy

savings and carbon emissions. In many other countries, there are energy or carbon taxes to reduce energy

consumption. The state of California has an energy tax which gives every consumer a baseline of energy usage

that carries a low tax. As the usage increases above the recommended baseline, the tax increases. This is meant

to protect poorer households and at the same time creating a larger tax burden on high energy consumers.57

In India, the Government of India enacted the Energy Conservation Act, 2001 which provides for the legal

framework, institutional arrangement and a regulatory mechanism at both the Central and State level

considering the benefits of energy efficiency. Also, the Petroleum Conservation Research Association (PCRA)

created in 1977 is engaged in promoting energy efficiency and conservation. An alumni of IIT Bombay, Global

Alumni Business Forum 2014 (GABF) shared some of the energy conservation ideas with Goa Chief Minister,

Mr. Manohar Parrikar about sensors that can automatically switch off lights in offices when there in no one in

56 Student, Institute Of Law, Nirma University, Ahmedabad 57 ZEHNER, OZZIE, GREEN ILLUSIONS, Lincoln And London: University Of Nebraska Press. Pp. 179–182; (2012)


the room, and roads that will make travel economical by planning shorter routes. Tata Power's nationwide

energy and resource conservation movement, Club Enerji, has been persistently working towards spreading

awareness on energy conservation across the country for many years.

It is often seen that the consumers are poorly informed about the energy efficient products. For example,

retailers believe that bright lighting encourages the consumers to purchase. Whereas, the studies show that

over- lighting is the cause of headache, stress, blood pressure and fatigue in many workplace.58 It has also

been proved that natural daylight increases productivity in workers.59 Energy conservation can also be done

by ‘energy audit’ which inspects and analyses energy use and flow in a building. In passive solar building

design, the windows, walls and floors are made to collect, stock and distribute solar energy in the form of heat

in winters and eliminate solar heat in summers.

In this research paper, the authors would discuss about energy conservation by dividing India into two time

zones. Till now, we have a standard time for the whole of India. Dividing India into two time zones will result

in a difference of two hours between the Eastern India and the Western India. The main aim should be to

utilize maximum amount of Sunlight and consequently reduce the use of Artificial Lights.

ENERGY CONSERVATION: WHY IS IT IMPORTANT?

Energy has an important role in our lives. It is the basis of all activities going on in our day to day life, be it

productivity or be it leisure. Each one of us uses energy in some form or the other. Energy is needed in every

small thing we do, from cooking to transportation to lighting, cooling and even entertainment. Energy

resources are limited. We use energy faster than it can be produced. The most utilized sources which include

coal, oil and natural gas take thousands of years to form.

Energy use per person is strongly co-related to standard of living in each economy. Higher per capita energy

consumption means a higher per capita gross national product. Energy is a crucial part of industrial growth,

economic growth, environment and comfort. The gap between demand and supply is increasing day by day

despite making huge expenditure in energy sector. This gap can be bridged with the help of energy

conservation. Energy conservation is cost effective and can be considered as a new source of energy which is

environment friendly. There is a good scope of energy conservation in various sectors such as industry,

agriculture, transport and domestic.60

58 Scott Davis, Dana K. Mirick, Richard G. Stevens "Night Shift Work, Light At Night, And Risk Of Breast Cancer"

JOURNAL OF THE NATIONAL CANCER INSTITUTE 2001 At 93 59 Lumina Technologies Inc., Santa Rosa, CA., Survey Of 156 California Commercial Buildings Energy Use, August, 1996 60 “Energy Conservation : An Effective Way Of Energy Utilization” Available At

Http://Www.Ijmra.Us/Project%20doc/IJMIE_MAY2012/IJMRA-MIE1184.Pdf (Last Visited On October 22, 2014)


To understand why energy conservation is crucial we need to first understand the kinds of energy resources

we depend upon. There are two such kinds- renewable energy resources and non- renewable energy resources.

Renewable energy resources are those resources which are non- exhaustible and can be replenished such as

wind, water, solar etc. non- renewable energy resources are exhaustible and cannot be replenished such as gas,

coal, oil etc. Non renewable energy sources constitute 80% of the fuel use. It is said that our energy resources

may last only for another 40 years or so. Therefore the consumption of the latter needs to be controlled because

the supply of such resources of energy is limited. Fossil fuels are a non-renewable resource which means that

one day last chunk of oil will be mined from earth and last drop of oil will be drained from earth.

Almost all the vehicles run on gasoline which is a fossil fuel. Once the reserves of fossil fuels are exhausted,

these vehicles will stop working. Trade and commerce would come to a standstill because it will almost

become impossible to deliver the manufactured goods. Houses will not be heated or cooled without electricity.

Also, the businesses will suffer because of these factors.

There is a huge amount of expenditure involved in extraction of fossil fuels. These expenses not only affect

the manufacturer but also affect the consumers who pay higher prices for goods and services. By saving this

money of consumers, the economy can be strengthened because people will have more money in pockets

rather than to spend on energy needs. Also, researchers will get more time to come up with solutions and

alternatives of energy when we conserve energy.

Energy conservation is vital from different perspectives and not just because saving energy means saving our

money by lowering our monthly energy bills which can be considered as the economic importance of energy

conservation. Energy conservation methods are also very significant from the environmental viewpoint

because we are still greatly dependent on fossil fuels, and by making a small reduction in our energy needs

we are also reduce a great deal of greenhouse gas emissions that add to climate change and global warming.

PREVALENT METHODS FOR ENERGY CONSERVATION

Indian Government is giving top priority to reach the goal of nation’s long term energy security. India currently

ranks 6th in the world in terms of energy demand. As per the Planning Commission’s Integrated Energy Policy

Report (Planning Commission 2006), if India perseveres with sustained economic growth rate of 8% of GDP

per annum through 2031-32, its primary energy supply will need to grow by 3 to 4 times, and electricity

generation capacity by 5 to 6 times compared to 2003-04 .

Energy survey conducted by Ministry of Power in 1992 revealed that there is requirement of improvement in

energy generation efficiency, improvement in energy transportation (transmission & distribution systems) and

enhancing the performance efficiency of use end apparatus . Study of ‘Energy strategies for Future’ evolved


two things - efficient use of energy, energy conservation and use of Renewable Energy. Energy conservation

emerges out to be the first and least cost option.

To achieve results in the field of energy conservation in the country, the Indian Government enacted the

Energy Conservation Act (EC Act) in the year 2002. Under this act, the government established a statutory

body under the Ministry of Power named as the Bureau of Energy Efficiency (BEE). The EC Act has

empowered both the Central and the State Governments to establish a legal framework to promote energy

conservation in the country. This act also helps in monitoring the efforts of energy conservation techniques.

One step taken by the Government under the EC Act is by launching Energy Conservation Building Code

(ECBC). ECBC sets the minimum energy performance standards for “large commercial buildings” after taking

into account the five major climatic regions of India. The Bureau of Energy Efficiency has taken steps to put

into operation capacity building programs and in developing several technical documents and training material

to create awareness about ECBC and to boost the professional skills of building design professionals.

The cost of generating 1MW power generation is Rs 4.5 to 5.25 crores and the cost of Transmission &

Distribution is Rs.2 crores. But the cost of saved power is Rs.1 Crore/Mw. The important thing to be noted

here is that the time period to set a power plant is 5 years; to set up transmission line 1 year and to plan energy

conservation is only 1 month. It is of prime importance to save electrical energy because it is proved to be an

ideal energy in all sorts of energy available in nature. Some of the methods used to save electrical energy

include:

• Locating transformers at proper place, especially close to the load center. This helps to reduce

distribution loss in cables.

• Using thick conductors in transformers to reduce load losses.

• Using energy efficient transformers.

• Conventional fluorescent lamps are being replaced by energy efficient fluorescent lamps.

• Mercury/sodium vapor lamps are being replaced by halides lamp.

The project of Energy Conservation has been successfully implemented by the Thane municipal Corporation

(TMC) in the year 2001. TMC identified a few basic areas for this purpose- municipal building and hospital,

street lights, pumping station sewage pumping station. Through energy conservation cell awareness program,

periodical maintenance program, utilization of alternative energy sources, energy generation (methane gas),

quality control & use of in-house man power, TMC obtained the success in all its energy conservation

programs. TMC received first prize in “State Level Award for Excellence in Energy Conservation &


Management” for the year 2004 & 2006 and first prize in “National Energy Conservation Award” for the year

2005.

Another such example of adoption of energy conservation measures include the Tata Power Company which

has achieved the goal of energy conservation in power utility by operating the equipment at maximum

efficiency and reducing the auxiliary power consumption.

OUR PROPOSAL FOR ENERGY CONSERVATION

DIVIDE INDIA IN TWO TIME ZONES

One of the ways to conserve energy is by dividing the country on the basis of time zones. The main aim should

be to utilize maximum amount of Sunlight and consequently reduce the use of Artificial Lights.

Since the early 1980s studies have been undertaken to evaluate various time-based measures for energy

conservation61. These included adoption of DST for six months (April-September), advancing IST by 30

minutes (i.e. GMT+6 hours) during the summer.62 The possibility of demarcating the country into two time

zones was also studied.63

As a matter of fact, Earth is divided into two parts on the basis of latitudes i.e. the Northern Hemisphere and

the Southern Hemisphere. In the same way there is a division of Earth on the basis of longitude i.e. Eastern

Hemisphere and the Western Hemisphere. Now, each Time Zone is theoretically 15 degrees wide,

corresponding to a 1 hour difference in mean solar time. Geographically, India extends from 68°7' West to

97°25' East which means that there is difference of approximately 29° resulting in a 2-hours difference in

Sunrise compared with the Far East and the Far West of Indian Subcontinent. Thus, when the sun sets at 4

p.m. in Kohima, it sets at 6 p.m. in Porbundar.

This difference of two hours results in postponing working and sleeping hours in the north-eastern

states. Office begins in the northeastern states six hours after sunrise whereas it begins four hours after

daybreak in the rest of India. As a result of which daylight hours are wasted leading to higher power

consumption. If we have two time zones in our country, office will start two hours earlier in, let’s say, Kolkata

than any city in Gujarat and subsequently there will be proper use of daylight in eastern parts of the country.

61 Taken From “Can Shifting India’s Clocks Save Energy?” TERI Available At

Http://Www.Teriin.Org/Index.Php?Option=Com_Ongoing&Task=About_Project&Pcode=2010CP01 (Last Visited On

October 26, 2014) 62 Ibid 63 Supra Note 8


The researchers found out that during the year of 2011-12, the net per capita electricity consumption for the

eastern and north-eastern states was 779.1 kWh.64 Also, as per the report of Central Electricity Regulatory

Commission, New Delhi, the cost of generating 1 MW of electricity comes to approximately 5.08 Crores.65

Calculating further, it can be derived that the cost of electricity generation in the eastern and north-eastern

states for 2 hours comes to approximately Rs.2,80,992.10 Crores. This means that if we can save electricity

for 2 hours we would save approximately Rs. 2,80,992.10 Crore for 2 hours per day and around Rs.84,29,763

crores could be saved in a month. This money can be utilized by the government to promote public welfare.

People from the northeastern states have been demanding creation of a separate time zone for the seven states

of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura so that they can utilize

daylight to the maximum.66 This demand got momentum when Bangladesh advanced its time one and half

hours ahead of IST.67 In India, the British colonial rulers had set local time one hour ahead of IST for tea

gardens, coal mines and the oil industry of Assam68. Some of the tea gardens still follow that time which is

also known as “Bagaan Time”. This system is also used by the United States of America which is known as

Daylight Saving Time (DST). Other countries like Russia and Canada also have multiple time zones. Russia

has the most time zones (11), followed by the U.S. with nine (six for states and three for territories), and

Canada with six.69

In this regard, the Indian Government has set up a committee which is chaired by Ajay Mathur who is the

director general of the Bureau of Energy Efficiency (BEE). The committee has been formed to examine the

proposition of another time zone in the country. The panel will primarily report on energy savings for which

various options are being considered.70 Eminent filmmaker Jahnu Barua has worked out a model to calculate

the monetary loss incurred in the Northeast because of following the IST.71 According to his calculations,

every year, there is a loss of at least Rs. 94,900 crore in the region because of redundant power consumption.72

64 Rajya Sabha – Starred Question No. 241, Ministry Of Power, Govt. Of India, August 29, 2013 Available At

Http://Powermin.Gov.In/Loksabhatable/Pdf/Raj_27082013_Eng.Pdf (Retrieved On October 26, 2014) 65 Annexure II Of Report No. L-1/103/CERC/2012 Dated 4.6.2012 Published By Central Electricity Regulatory

Commission. 66 Baruah Sanghamitra, “Seven Sister’s Demand For Separate Time Zone Gains Momentum” Available At

Http://Timesofindia.Indiatimes.Com/India/Seven-Sisters-Demand-For-Separate-Time-Zone-Gains-

Momentum/Articleshow/5879491.Cms (Last Visited On October 26, 2014) 67 Ibid 68 Ibid 69 Taken From “Time Zones Origins” Available At Http://Www.Infoplease.Com/Spot/Timezones.Html (Last Visited On

October 26, 2014) 70 Supra Note 11 71 Taken From “North-East Mps Bridge Political Divide For Separate Time Zones” Available At

Http://Www.Hindustantimes.Com/India-News/North-East-Mps-Bridge-Political-Divide-For-Separate-Time-

Zone/Article1-1173112.Aspx (Last Visited On October 26, 2014) 72 Ibid


USE OF SOLAR BOTTLE BULB

When it comes to utilizing the Daylight effectively, the major issue arises with congested localities where

sunlight is either negligible or not available. Many residential and commercial buildings are not designed to

optimally utilize the available sunlight.73

The solar bottle bulb is an innovative instrument developed by the student of MIT, USA that is helping poor

people in developing countries.74 It is a simple 1 liter soda bottle that is filled with a solution of purified water

and bleach.75 The bottle is then inserted halfway through a hole drilled in the metal roof and its sides are

sealed.76 The bottle then looks as a bulb through the sunroof and it provides very good amount of light by

deflecting sunlight into gloomy interiors.77

In this setup what actually happens is that, the chlorine and the bleach poisons the pure water in order to keep

molds from developing so that the solution can last up to five years. The purified and clear water helps to

disperse the light through refraction technique, so the light is not concentrated. It hardly cost Rs.60 to develop

this solar bulb.78

Furthermore, focusing on the limitations, we found out that the water in this bottle needs to be replaced every

five year and also that this bulb is only useful during the day time.79 Nevertheless, the advantages are

overwhelming for the localities that are deprived of sunlight.80 This solar bulb does not produce any harmful

pollutants and also reduces the dangers from electrical connections that might cause fire.81 Lastly, the best

part is that the bulb produces energy equivalent to 40-60 watts.82

USE OF GLAZING GLASSES FOR EFFECTIVE USE OF SUNLIGHT

One another way to conserve electricity is by the use of Glazing Glasses instead of normal glasses in

Universities and Corporates. We can see the implementation of Glazing Glass in CEPT University who has

won several awards for this new infrastructure. The Green features of the implementation are:-

1. Huge Overhangs on the glazing side to reduce the direct heat gain of the glazing.83

73 Supra Note 5 74 An Innovative And Cheap ‘Solar Bottle Bulb’ Solution Lights Homes In Manila Available At

Http://Ecopreneurist.Com/2011/09/14/An-Innovative-And-Cheap-Solar-Light-Bulb-Lights-Homes-In-Manila/ (Last

Visited On October 30, 2014) 75 Ibid 76 Ibid 77 Ibid 78 Infra Note 26 79 Supra Note 18 80 Supra Note 18 81 Infra Note 26 82 Gibby Zobel, Alfredo Moser: Bottle Light Inventor Proud To Be Poor; Taken From BBC World Services Available At

Http://Www.Bbc.Com/News/Magazine-23536914 (Last Accessed On October 30, 2014) 83 Taken From “CEPT University Projects Wins Award” Available At Http://Cept.Ac.In/72/Cept-Research-Development-

Foundation-Crdf-/News/141/Cept-University-Project-Wins-Award (Last Accessed On October 30, 2014)


2. Helps in reducing the direct heat gain on the glazing surface.84

3. Orientation based on solar analysis.85

4. Minimizing the use of glass in the buildings and also orienting through Visual Deo helps in reducing

the direct heat gain on the glazing surface.86

5. High insulation on roof and wall materials to reduce heat gain inside the building.87

6. Natural Lightning & Courtyard to reduce lightning energy demand & for natural ventilation.88

7. Landscaping the water body used to reduce heat gain on the façade.89

These glasses helps in spreading sunlight inside the building without allowing heat to pass through. This

results in lower energy demand and higher energy conservation.

ISSUES RELATED WITH IMPLEMENTATION OF THE PROPOSAL

TIME STANDARDRIZATION OF INDIAN RAILWAYS

Our proposal of dividing India into two time zones has one big issue regarding what time will be followed by

the Indian Railways. Two time zones for the railways of one country can result in confusion and chaos.

Today Indian Railways follow Indian Standard Time (IST) which is 5 hours and 30 minutes ahead of UTC

(formerly known as GMT). There is only one time zone for India. It does not observe DST or any other

adjustments to the time.

Many countries like USA, Russia and Canada have multiple time zones. In the early days, India also observed

local time at each large cities as was prevalent in many other big countries. Originally there were two Time

Zones, the Bombay Time and Calcutta Time.90 Bombay continued to have a different time (39 minutes behind

IST) until 1955.91 Bombay time and Calcutta time assumed special importance because of their importance as

commercial and economic centers, and were followed for many official purposes in the late 19th century

forming two time zones for British India. Calcutta time was 5 hours, 30 minutes, and 21 seconds in advance

of GMT, while Bombay Time was 4 hours and 51 minutes ahead of GMT.92

84 Ibid 85 Ibid 86 Ibid 87 Ibid 88 Ibid 89 Ibid 90 Taken From “Indian Time Zones” Available At Http://Wwp.Greenwichmeantime.Com/Time-

Zone/Asia/India/Time/Indian-Time-Zones.Htm (Last Visited On October 30, 2014) 91 Ibid 92 Ibid


In India, if we have two different time zones, the first thing we need to do is to fully automate Indian Railways

which at present is semi-automatic. Secondly we need a single standard time for railways to avoid confusion

and any accidents resulting from the same. Thus two different time zones will not affect Indian Railways

timing.

TIME SYNCRONIZATION WITH BANKING & FINANCIAL SERVICES

Financial transaction is again one of the issues resulting from the division of time zones. As a matter of fact,

Banks in India operate from 10 AM till 5 PM, however, for citizen the timing is till 3 PM. The remaining two

hour from 3 PM till 5 PM, bank does its back end work. Now, if the country is divided in two time zones

obviously there will be some issue with time synchronization between banks in East India and banks in West

India. Keeping his thing in mind, the author would like to propose few suggestions to avoid this:-

1. Banks can give some leverage to the Managers and Senior Officials. They can be allowed to come two

hours late and then finish off the work that is left out for the last 2 hours of the operations.

2. Cash transfers from Money transfer services like Money Gram & Western Unions can be asked to

issue directions and awareness to its consumers regarding the withdrawal timings in the destination

cities.

CONCLUSION

Hence, the researchers would like to propose that India should be divided into two time zones as this will help

us in conserving energy and help us to utilize daylight optimally. This would also prove to be a boon to India’s

finance as it would help save a lot of money which was otherwise wasted due to not utilizing daylight.

The issues which can arise due to this proposal have also been discussed. The main issue is of managing time

of Indian Railways. As it is known, many big countries follow multiple time zones and maintain large network

of railways without any confusion or accidents resulting from the same. India also have followed different

time zones in the earlier days without any problems arising out of such time zones.

We have further proposed that Indian Railways can follow one standard time as is followed in many other

countries having multiple time zones. Also, there is the problem of automation of Indian Railways Time which

in many parts of the country is still manual. We need to fully automate our railways before implementing the

division of India in to two time zones. Furthermore, we can use the glazing glasses and solar bottle bulbs to

reduce the consumption of electricity.


THE TRIPS AGREEMENT: A ROARING LION OR TOOTHLESS TIGER:

A CRITICAL ANALYSIS

Abhishek Singh93

INTRODUCTION

In Indiɑ, under the Pɑtents ɑᴄt of 1970, ɑ pɑtent meɑns the exᴄlusive right of the inventor to use his

invention for ɑ pɑrtiᴄulɑr period.94 The bɑsiᴄ prinᴄiple underlying the grɑnt of pɑtents is thɑt the invention

must be new ɑnd useful ɑnd ᴄɑpɑble of industriɑl ɑppliᴄɑtion.95 The Indiɑn Pɑtent ɑᴄt reᴄognizes only

proᴄess pɑtents in phɑrmɑᴄeutiᴄɑl ɑnd ɑgro-ᴄhemiᴄɑl inventions.96 Only proᴄess pɑtents ᴄɑn be grɑnted for

the food produᴄts, mediᴄines ɑnd ᴄhemiᴄɑls. This meɑns thɑt only the method of produᴄtion ᴄɑn be pɑtented

ɑnd not the end produᴄt.97 The generɑl term of ɑ pɑtent is for 14 yeɑrs. However, for ᴄertɑin proᴄess pɑtents

used for mediᴄine, food ɑnd drugs, the term vɑries from 5 to 7 yeɑrs. In ɑddition the stɑte ᴄɑn impose ɑny

ᴄondition on the grɑnt of pɑtent. Further, The ᴄentrɑl Government ᴄɑn use ɑ pɑtented invention in speᴄifiᴄ

ᴄirᴄumstɑnᴄes without the pɑyment of royɑlty.

As ɑ mɑtter of fɑᴄt, Phɑrmɑᴄeutiᴄɑls enjoy ɑ speᴄiɑl plɑᴄe ɑs ɑ mɑjor reseɑrᴄh-oriented ɑnd

knowledge-bɑsed industry.98 Numerous drug formulɑtions for vɑrious ɑilments ɑre invented, pɑtented,

produᴄed ɑnd mɑrketed throughout the world every yeɑr.99 The Indiɑn Phɑrmɑᴄeutiᴄɑl Industry plɑys ɑ

mɑjor role not only ɑs ɑ ᴄontributor to the eᴄonomy but ɑlso by providing drugs ɑt ɑffordɑble priᴄes.100

Neɑrly 95 perᴄent of the domestiᴄ demɑnd for phɑrmɑᴄeutiᴄɑls in Indiɑ is met through indigenous

produᴄtion.101 Import ɑre limited to ɑ few lifesɑving drugs like ɑnti-ᴄɑnᴄer, ᴄɑrdiovɑsᴄulɑr, ɑnti-

hypertension ɑnd other newer drugs thɑt ɑre not yet ᴄleɑred for indigenous produᴄtion.102

Under the Indiɑn Pɑtents ɑᴄt, 1970, Indiɑ reᴄognizes only proᴄess pɑtents for phɑrmɑᴄeutiᴄɑl

produᴄts.103 This ɑllows Indiɑn ᴄompɑnies to reproduᴄe ɑnd mɑrket newly invented drugs in the Indiɑn

mɑrket through ɑ different produᴄtion proᴄess, typiᴄɑlly within one or two yeɑrs of its invention, ɑnd ɑt only

93 Student, NALSAR University Of Law, Hyderabad 94 Suman Sahai, Indian Patents Aᴄt And TRIPS, Eᴄonomiᴄ And Politiᴄal Weekly, Vol. 28, No. 29/30 (1993), Pp 1495 – 1497. 95 Id., P.1495 96 Id., P.3787 97 Id., P.1496 98 Pradeep Agarwal, P Saibaba; TRIPS And India’s Pharmaᴄeutiᴄals Industry, Eᴄonomiᴄ And Politiᴄal Weekly, Vol. 36, No.

39 (2001), Pp 3787 – 3790 99 Id., P.3787 100 Id., P.3788 101 Id., P.3788 102 Id., P.3789 103 Supra Note 3, P.1496


ɑ smɑll frɑᴄtion of the ᴄost of pɑtented drugs in developed ᴄountries.104 The ideɑ behind grɑnting only proᴄess

pɑtents for food produᴄts, ᴄhemiᴄɑls ɑnd mediᴄines is to keep down the priᴄe of these items, ɑs the mɑjority

of Indiɑn populɑtion is poor ɑnd does not hɑve enough food ɑnd bɑsiᴄ heɑlth ᴄɑre.

PRE TRIPS ERA

Phɑrmɑᴄeutiᴄɑl pɑtents were first introduᴄed to Indiɑ by the British in the ᴄoloniɑl erɑ.105 In 1970,

ᴄonᴄerned ɑbout the dominɑnᴄe of foreign phɑrmɑᴄeutiᴄɑl firms ɑnd the high priᴄe of mediᴄines, Indiɑ

ᴄhɑnged ᴄourse, pɑssing ɑ pɑtent lɑw prohibiting produᴄt pɑtent on mediᴄines.106 ɑt thɑt time, foreign firms

ᴄontrolled ɑbout 70 perᴄent of Indiɑn mɑrket,107 ɑnd Indiɑn drug priᴄes were ɑmong the highest in the

world.108

The 1970 ɑᴄt served ɑs ɑ substɑntiɑl driver of three deᴄɑdes of growth in the domestiᴄ phɑrmɑᴄeutiᴄɑl

industry.109 In the yeɑrs thɑt followed it, the number of pɑtents grɑnted in Indiɑ dropped quiᴄkly.110 ɑlthough

the lɑw permitted proᴄess pɑtents relɑted to mediᴄines, they were very limited in sᴄope111 ɑnd rɑrely sought.

The lɑw thus ᴄreɑted signifiᴄɑnt spɑᴄe for the entry of loᴄɑl phɑrmɑᴄeutiᴄɑl firms,112 ɑnd they rɑpidly

inᴄreɑsed their shɑre of the Indiɑn mɑrket.113

Indiɑn firms ɑlso beᴄɑme more teᴄhniᴄɑlly sophistiᴄɑted. For exɑmple, they first produᴄed ɑᴄtive

Phɑrmɑᴄeutiᴄɑl Ingredients (ɑPIs) in the mid-1970s, with produᴄtion steɑdily inᴄreɑsing over the next three

deᴄɑdes.114 Indiɑn ᴄompɑnies beᴄɑme skilled in reverse engineering ɑnd developing new proᴄesses for drug

produᴄtion.115 Some lɑunᴄhed foreign drugs loᴄɑlly before the originɑtor did, ɑppɑrently even in ᴄɑses where

the originɑtor sought to be the first in the mɑrket.116 Over time, the Indiɑn industry ɑlso evolved to beᴄome

104 Supra Note 3, P.1497 105 P. Narayana, PATENT LAW, P.5, 4th Ed., 2006 106 The Patents Aᴄt, 1970, No. 39, 5 (India), Reprinted In P. Narayana, PATENT LAW, P.546, 3rd Ed., 1998 107 Infra Note 18, P.341 108 Amy Kapᴄzynski, Harmonization And Its Disᴄontents: A ᴄase Study Of TRIPS Implementation In India’s Pharmaᴄeutiᴄal

Seᴄtor, ᴄalifornia Law Review, Vol. 97, No. 6, Pp.1571-1649, (2009) 109 Jean O. Lanjouw, The Introduᴄtion Of Pharmaᴄeutiᴄal Produᴄt Patents In India: “Heartless Exploitation Of The Poor

And Suffering”? 3, National Bureau Of Eᴄonomiᴄ Researᴄh, Working Paper No. 6366, Available At

Www.Oiprᴄ.Ox.Aᴄ.Uk/EJWP0799.Pdf Last Visited On May 5, 2013 110 Id., P.3 111 Supra Note 15, P.563 112 Infra Note 28, P.133 113 Infra Note 28, P.18, Tbl. 2.2 114 Infra Note 28, P.40-41 115 Infra Note 28, P.52 116 Infra Note 28, P.54


extrɑordinɑrily ᴄompetitive ɑnd diverse.117 Further, numerous surveys indiᴄɑte thɑt Indiɑn drug priᴄes by the

1990s were ɑmong the lowest in the world.118

THE TRIPS AGREEMENT

Mɑjor ᴄhɑnges were seen in the phɑrmɑᴄeutiᴄɑl industry in Indiɑ ɑfter 2005, ɑs ɑ result of TRIPS

ɑgreement, whiᴄh endeɑvored to proteᴄt the rights of inventors.119 The ɑgreement hɑs been the result of ɑᴄtive

lobbying by multinɑtionɑl phɑrmɑᴄeutiᴄɑl firms ɑnd strong pressure from the US ɑnd other developed

ᴄountries.120

Under this ɑgreement, norms ɑnd stɑndɑrds were provided in respeᴄt of seven ᴄɑtegories of

intelleᴄtuɑl property rights, whiᴄh inᴄlude ᴄopyrights, trɑdemɑrks ɑnd produᴄt pɑtents in ɑll ɑreɑs of

teᴄhnology.121 ɑll member of WTO were expeᴄted to ᴄomply with the provisions under TRIPS from Jɑnuɑry

1, 1995.122 However, the ɑgreement provided ɑ trɑnsition period of 10 yeɑrs for developing ᴄountries i.e. until

Jɑnuɑry 1, 2005 to enɑᴄt ɑ bill inᴄorporɑting produᴄt-pɑtent proteᴄtion.123 ɑᴄᴄordingly, the pɑtents will

provide the rights of produᴄtion ɑnd mɑrketing solely to the inventor in ɑll the member ᴄountries of WTO for

20 yeɑrs.124 Further, ɑll member ᴄountries ɑre ɑlso required to tɑke steps to provide for the reᴄeipt of exᴄlusive

mɑrketing rights (EMR) for 5 yeɑrs or till the pɑtent is grɑnted, whiᴄhever is eɑrlier.125

INDIAN PATENTS ACT AND THE TRIPS AGREEMENT

Indiɑ ɑlreɑdy grɑnts produᴄt pɑtents in most fields.126 However, the Indiɑn Pɑtent ɑᴄt 1970 ɑs stɑted ɑbove

reᴄognizes only proᴄess pɑtents in phɑrmɑᴄeutiᴄɑls ɑnd ɑgro-ᴄhemiᴄɑls, while the TRIPS ɑgreement requires

both produᴄt ɑnd proᴄess pɑtents in ɑll fields. ɑs ɑ result of whiᴄh, Indiɑ hɑd to ᴄhɑnge its pɑtents lɑw.

However, this wɑs proved diffiᴄult, ɑs the immediɑte ɑnd severely ɑdverse impɑᴄt of the bill on Indiɑn

ᴄonsumers mɑkes it politiᴄɑlly inɑppropriɑte. On ɑ ᴄomplɑint by the US to WTO, Indiɑ wɑs ɑsked to tɑke

steps to ɑmend its pɑtent lɑws to meet WTO obligɑtions by ɑpril, 1999. Subsequently, the Rɑjyɑ Sɑbhɑ

pɑssed the ɑmended bill in Deᴄember 1998 but the government ᴄould not bring it for ᴄonsiderɑtion in the Lok

117 Aradhana Aggarwal, Strategiᴄ Approaᴄh To Strengthening The International ᴄompetitiveness In Knowledge Based

Industries: The Indian Pharmaᴄeutiᴄal Industry, 16, Researᴄh And Information System For Developing ᴄountries,

Disᴄussion Paper No. 80 (2004) 118 K.Bala & Kiran Sagoo, Patents And Priᴄes, Hainews, April 2000, Available At

Www.Haiweb.Org/Pubs/Hainews/Patents%20and%20priᴄes.Html Last Visited On May 5, 2013 119 Sudip ᴄhaudhari, Patents And Pharmaᴄeutiᴄals In India, The WTO And India’s Pharmaᴄeutiᴄals Industry: Patent

Proteᴄtion, TRIPS And Developing ᴄountries, P.341, Oxford University Press, New Delhi (2005) 120 Id., P.341 121 Jayashree Watal, Implementing The TRIPS Agreement: Poliᴄy Options Open To India, Available At

Www.Jstor.Org/Stable/4405898 Last Visited On May 5, 2013 122 Ibid 123 Supra Note 7, P.3790 124 Supra Note 7, P.3790 125 Supra Note 7, P.3790 126 Supra Note 26


Sɑbhɑ due to resistɑnᴄe from both the treɑsury ɑnd the opposition benᴄhes. Finɑlly, in order to fulfill its

obligɑtions, the government of Indiɑ promulgɑted the Pɑtents (ɑmendment) Ordinɑnᴄe in Jɑnuɑry 8, 1999

ᴄhɑnging the Indiɑn Pɑtents ɑᴄt, 1970 in line with the WTO norms. The ordinɑnᴄe provided for:-

1. Filling of ɑppliᴄɑtions for produᴄt pɑtents in the field of ɑgro-ᴄhemiᴄɑls ɑnd phɑrmɑᴄeutiᴄɑls.

2. Grɑnt of EMRs for the ɑppliᴄɑnt ɑfter ɑ set of ᴄonditions is fulfilled.

One immediɑte ᴄonsequenᴄe of TRIPS ɑgreement would hɑve been the shɑrp inᴄreɑse in the priᴄes in drugs

invented ɑfter the new produᴄt pɑtent lɑws ᴄɑme into forᴄe in 2005. Thus, the TRIPS ɑgreement initiɑlly

would ɑffeᴄt only ɑ smɑll portion of drugs ɑvɑilɑble in Indiɑ. However, the impɑᴄt would inᴄreɑse grɑduɑlly

over time ɑs virtuɑlly ɑll new drugs entering the mɑrket in future would be pɑtent proteᴄted ɑnd mɑny of the

old drugs would be expeᴄted to beᴄome ineffeᴄtive over time ɑs diseɑse ᴄɑusing bɑᴄteriɑ develop resistɑnᴄe

to them, thereby forᴄing people to switᴄh to the new, more expensive drugs.

On the other hɑnd, some pɑrties benefited from the TRIPS ɑgreement. In pɑrtiᴄulɑr, it is ᴄleɑr thɑt

the lɑrge phɑrmɑᴄeutiᴄɑl firms bɑsed lɑrgely in developed ᴄountries benefited by being ɑble to ᴄhɑrge muᴄh

higher priᴄes on their pɑtented drugs by virtue of the monopoly they gɑined in the mɑrkets of developing

ᴄountries ɑs ɑ result of TRIPS ɑgreement. This ɑlso benefited the developed ᴄountries through ɑ lɑrger tɑx

bɑse ɑnd more jobs, ɑmong others.

In the long run, the TRIPS ɑre ɑlso expeᴄted to bring benefits to developing ᴄountries like Indiɑ in the

form of inᴄreɑsed reseɑrᴄh ɑnd development expenditure in inventing drugs for diseɑses thɑt ɑre speᴄifiᴄ to

developing regions (suᴄh ɑs tropiᴄɑl diseɑses). The mɑjor reɑson, why Indiɑn firms hɑve not tried to

invent better ᴄures for mɑlɑriɑ or tuberᴄulosis is thɑt, the pɑtent proteᴄtion in Indiɑ mɑkes it

unprofitɑble to do so, ɑny suᴄh invention will be reɑdily ᴄopied by other firms in Indiɑ ɑnd the originɑl

inventor will not be ɑble to reᴄover the reseɑrᴄh ᴄosts. Thus, ᴄhɑnges in pɑtent lɑws mɑy enᴄourɑge mɑny

firms in Indiɑ ɑnd in other developing ᴄountries to undertɑke more reseɑrᴄh in finding ᴄures for diseɑses

ᴄommon in their ᴄountries, rɑther thɑn mere foᴄusing on ᴄheɑply reproduᴄing drugs invented in industriɑlized

ᴄountries. This should bring benefits to developing ᴄountries in the medium to long run. However, the ᴄost

thɑt is being demɑnded ɑppeɑrs to be too lɑrge to pɑy for suᴄh benefits. There exists ɑlternɑtive wɑys to

ɑᴄhieve these ends. For exɑmple, the phɑrmɑᴄeutiᴄɑl industry ᴄould be persuɑded to invest more on R&D

for inventing drugs for diseɑse prevɑlent in developing ᴄountries either by morɑl suɑsion or by shɑring of

ᴄosts by developing ᴄountries. Developing ᴄountries with ɑ relɑtively developed phɑrmɑᴄeutiᴄɑl industry,

suᴄh ɑs Indiɑ, ᴄɑn ɑlso ɑᴄhieve this by providing suffiᴄient rewɑrds to their own firms (suᴄh ɑs tɑx inᴄentives

for undertɑking reseɑrᴄh ɑnd development of new drugs, reimbursement of reseɑrᴄh ᴄost for speᴄifiᴄ

disᴄoveries, ɑnd provisions for produᴄt pɑtents for firms operɑting within the ᴄountry ɑnd subjeᴄt to its

sovereignty) thɑt ɑre willing to ɑrgument their reseɑrᴄh efforts, possibly in ᴄollɑborɑtion with foreign firms.


These meɑsures ᴄould provide similɑr long-term benefits but without imposing the severe priᴄe inᴄreɑses for

mediᴄines.

SUGGESTIONS

There exists some speᴄifiᴄ problems with the TRIPS ɑgreement thɑt mɑy hɑrm the interest of

developing nɑtions, inᴄluding Indiɑ. The ɑuthors ᴄɑn mention one of the problems relɑted to the pɑtent regime

of WTO regɑrding the dispute over the domestiᴄ biodiversity legislɑtion. There is ɑ need to provide

ɑppropriɑte legɑl ɑnd institutionɑl meɑns for reᴄognizing the rights of indigenous ᴄommunities on their

trɑdition knowledge ɑbout their biologiᴄɑl resourᴄes ɑnd trɑditionɑl remedies, mɑny of whiᴄh ɑre not

doᴄumented yet in written form. It will be ɑ gross ɑbuse of pɑtent lɑws if suᴄh knowledge of, sɑy, vɑrious

trɑditionɑl herbɑl treɑtments of one ᴄountry ɑre given pɑtent rights in other ᴄountries where suᴄh knowledge

mɑy not be well known.

It seems thɑt some western firms hɑve been trying to tɑke ɑdvɑntɑge of the fɑᴄt thɑt the trɑditionɑl

mediᴄɑl knowledge of mɑny indigenous ᴄommunities is not well doᴄumented in written form, ɑnd they tɑke

out pɑtents on produᴄts bɑsed on suᴄh knowledge. Proper rules should be formulɑted to prevent suᴄh ɑbuse.

Indiɑ hɑs proposed thɑt pɑtent ɑppliᴄɑtion should mention the origin of biologiᴄɑl mɑteriɑl utilized in the

invention ɑnd the ᴄountries providing suᴄh mɑteriɑls should get ɑ shɑre of ᴄommerᴄiɑl benefits out of suᴄh

pɑtents. Similɑrly, trɑditionɑl remedies of one ᴄommunity or ᴄountry should either be not pɑtentɑble ɑt ɑll,

or should shɑre suᴄh ᴄommerᴄiɑl benefits with the ᴄommunity where the knowledge originɑted. There is ɑn

urgent need to forge ɑ ᴄonsensus of this issue.

The ɑuthors feel thɑt in its present form the TRIPS ɑgreement is tipped too fɑr in fɑvor of

multinɑtionɑl phɑrmɑᴄeutiᴄɑl firms ɑnd the developed ᴄountries. For exɑmple, todɑy’s eᴄonomiᴄ

superpowers, the US ɑnd Jɑpɑn, developed rɑpidly during the lɑte 19th ɑnd eɑrly 20th ᴄentury, lɑrgely by

ᴄopying Europeɑn teᴄhnology. Switzerlɑnd refused to hɑve produᴄt pɑtents for phɑrmɑᴄeutiᴄɑls until 1978

in ɑ lɑrgely suᴄᴄessful effort to develop its phɑrmɑᴄeutiᴄɑls by ᴄopying pɑtented drugs invented elsewhere.

Developed ᴄountries, ᴄonᴄerned over their deᴄlining ᴄompetiveness in ɑ lɑrge ɑrrɑy of mɑnufɑᴄtured

produᴄts, ɑre now trying to snɑtᴄh ɑwɑy this right from the developing ᴄountries, thereby mɑking

teᴄhnologiᴄɑl ᴄɑtᴄhing-up more diffiᴄult so ɑs to be ɑble to preserve their own supremɑᴄy ɑs long ɑs possible.

Some hɑve equɑted this to ɑn ɑttempt by the developed ᴄountries to reᴄolonize the developing ᴄountries. The

lɑtter should be wise enough to see through this gɑme. It is quite ᴄleɑr thɑt there is nothing trɑde relɑted ɑbout

TRIPS exᴄept thɑt the right trɑde is being exploited by the developed ᴄountries to impose trɑde restriᴄtions

on developing ᴄountries. Industriɑl ᴄountries ɑre mɑking similɑr ɑttempt in other direᴄtion ɑs well, suᴄh ɑs

by linking trɑde with environment ɑnd lɑbor stɑndɑrds in ɑn effort to proteᴄt their mɑnufɑᴄturers.


This exploitɑtion should not beᴄome the norm for interɑᴄtion ɑmong ᴄommunities of nɑtions. Insteɑd,

the developed helping to uplift the developing should be the idle for the humɑn rɑᴄe. Sɑdly, the TRIPS

ɑgreement is ᴄloser in spirit to the former thɑn to the lɑtter ɑnd mɑjor ᴄhɑnges in this ɑgreement ɑre ᴄɑlled

for. The developing ᴄountries ɑᴄt unitedly, the developed ᴄountries will hɑve no ᴄhoiᴄe but to ᴄompromise

more reɑsonɑbly.

Ideɑlly, the TRIPS ɑgreement should not be pɑrt of the WTO regime ɑt ɑll. There is no reɑson for

developing ᴄountries to ᴄompromise on their sovereignty ɑnd ɑgree to poliᴄe the pɑtent rights of multinɑtionɑl

firms ɑt ɑ huge ᴄost to their own people.

At the very leɑst, the industriɑlized ᴄountries should ɑᴄᴄept some ᴄhɑnges in the TRIPS ɑgreement in

fɑvor of developing ᴄountries. ɑ more ɑppropriɑte ɑgreement need to be drɑfted to bɑlɑnᴄe muᴄh more evenly

the ᴄommerᴄiɑl interest of inventors ɑnd needs of the poor in developing ᴄountries for ɑᴄᴄess to ᴄheɑp

mediᴄines.

The ɑuthors believe thɑt ɑ more reɑsonɑble ᴄompromise would be to reduᴄe the pɑtent life from 20

yeɑrs to 10 yeɑrs ɑnd ɑ right for developing ᴄountries to enforᴄe ᴄompulsory liᴄensing ɑnd priᴄe ᴄontrols

ɑfter the first 5 yeɑrs of ɑn invention, ɑt leɑst in ᴄɑse of life sɑving drugs ɑnd drugs of mɑss ᴄonsumption.

The ɑuthors believes thɑt this is ɑ reɑsonɑble ᴄompromise thɑt will sɑfeguɑrd the essentiɑl ᴄommerᴄiɑl

interests of multinɑtionɑl phɑrmɑᴄeutiᴄɑls firms without unreɑsonɑbly distressing the poor in developed

ᴄountries.

In the meɑntime, we must try to mɑke the best of the present sᴄenɑrio. Indiɑ is relɑtively better off

thɑn mɑny other developing ᴄountries beᴄɑuse it hɑs ɑ reɑsonɑbly well developed phɑrmɑᴄeutiᴄɑl seᴄtor.

We must do our best to help mɑke Indiɑn firms more ᴄɑpɑble of undertɑking reseɑrᴄh ɑnd development ɑnd

to be more ᴄompetitive in export. This ᴄɑn be fɑᴄilitɑted by providing generous tɑx inᴄentives for undertɑking

reseɑrᴄh ɑnd development, ɑnd by ɑllowing liberɑl imports of rɑw mɑteriɑls with minimum import duties.

Export proᴄedure should ɑlso be further simplified so thɑt they do not beᴄome ɑ hindrɑnᴄe in the

growth of exports. We should ɑlso ɑᴄtively enᴄourɑge teᴄhnologiᴄɑl ᴄollɑborɑtion with foreign firms ɑnd

the inflow of foreign direᴄt investment in the phɑrmɑᴄeutiᴄɑl industry ɑs wɑy to bring new teᴄhnology,

reseɑrᴄh, ɑnd mɑnɑgeriɑl ᴄɑpɑbilities into this importɑnt seᴄtor of the eᴄonomy.


INTERNATIONAL CIVIL AVIATION ORGANIZATION’S ROLE IN DISASTER PLANNING,

PREPAREDNESS & RESPONSE: A FUNDAMENTAL UNDERSTANDING OF THE

INTERNATIONAL SCENARIO

Dhruv Patel127

INTRODUCTION

The International Civil Aviation Organization (ICAO) is a specialized agency of the United Nations

(UN) devoted to the safety efficiency and regularity of international aeronautical transportation. The

governing protocols of ICAO are the Articles of the Convention on International Civil Aviation signed at

Chicago on December 7, 1944 (the Chicago Convention).128

ICAO is charged with the administration of the principles laid out in the Convention. In ICAO

Headquarters, Montreal, Search and Rescue (SAR) is the responsibility of the Air Traffic Management Section

of the Air Navigation Bureau and, specifically, 30% of one person’s time.129

The reason for ICAO coming into being is to be found in the events of the 1940s. The Second World

War was a powerful catalyst for the technical development of the airplane. At the end of the war, a vast

network of passenger and freight operations had been set up but it lacked high level, organizational structure,

especially in its International dimension. Just as the airplane had been a devastatingly effective instrument of

war, it was realized that it could be outstandingly effective in supporting and benefitting a world at peace.130

The Chicago Convention has 96 Articles. The Fundamental principle underwriting the Convention is

that “every state has complete and exclusive sovereignty over the airspace above its territory”. The

Convention also provides that no scheduled international air service may operate over or into the territory of

a Contracting State without its previous consent.131

THE FUNDAMENTAL STANDARDS AND THE COOPERATIVE PROVISION:

A BRIEF

127 Student, Gandhinagar National Law University, Gandhinagar 128 Brian Day, ‘ICAO’s Role In Disaster Preparedness, Planning And Response’ Available At

Http://Www.Aai.Aero/Seminar_Presentation/ICAO_Disaster.Jsp (Last Visited On August 4, 2014). 129 Available At Www.Icao.Int/Publications/Pages/Doc7300.Aspx (Last Visited On August 4, 2014) 130 Ibid 131 Supra Note 1


SAR features as a legal obligation in Article 25 of the Chicago Convention which states that “ each

contracting State undertakes to provide such measures of assistance to aircraft in distress in its territory as it

may find practicable … each, contracting State, when undertaking search for missing aircraft, will collaborate

in coordinated measures which may be recommended from time to time..”.132

These coordinated measures are expressed as Standards and Recommended Practices (SARPs) in

Annex 12 to the Convention.133 They cover matters of establishment, maintenance and operation of SAR

services both in territories of Contracting States and over the high seas.134

The first Standard articulated in the Annex requires that “Contracting States shall arrange for the

establishment and provision of search and rescue services within their territories. Such services shall be

provided on a 24- hour basis.”135

The Annex goes on with SARPs that provide for delineated areas of responsibility, Rescue

Coordination Centers (RCCs), communications facilities, rescue units and rescue equipment. These make up

some of the fundamentals of an organization. Third chapter in the Annex, is headed “Co-operation”. The fact

that an entire chapter in this Annex is dedicated to cooperation is indicative of its importance. The researcher

would like to focus on some aspects of this vital concept of cooperation, particularly cooperation between

States within a region and cooperation between administrators (by which is meant planners, regulators and

managers) and RCC operations personnel.136

Unlike other aviation services, which are examples of physical sciences designed to meet both and a

commercial end, SAR requires the exercise of some highly refined social sciences and has as its end the

preservation of endangered human life. The specialness of SAR, then, lies in its humanitarian ethic, as distinct

from other services commercial imperative.137

Annex 12 is extensively expanded upon in the International Aeronautical and Maritime Search and

Rescue (IAMSAR) Manual, a joint publication of ICAO and the International Maritime Organization

(IMO).138

At its outset, the IAMSAR Manual acknowledges the impracticality of State SAR administrations

taking sole responsibility for the provision of all the resources necessary to conduct SAR operations. For some

132 International Civil Aviation Organization (ICAO), Convention On Civil Aviation (“Chicago Convention”), 7 December

1944, 15 U.N.T.S. 295, Available At Http://Www.Unhcr.Org-/Refworld/Docid/3ddca0dd4.Html (Last Visited On August

5, 2014) 133 Ibid 134 Ibid 135 Infra Note 10 At 69 136 Ibid 137 Michael Milde, International Air Law And ICAO 70 (Eleven International Publishing, 2008) 138 Ibid


states, not a few, it is impossible for them to do so; it is simply beyond their financial capacity to provide

every necessary resource. This is the primary reason for the development of co-operative policies between

agencies within States and between States themselves: to make provision for the shared use of assets. There

are many other benefits that are to be derived from cooperation at various levels and the IAMSAR manual

expounds on these. It encourages cooperation between government and industry, civilian and military,

aeronautical and maritime, air traffic control and SAR.139

Cooperation, in short, is the key to each State meeting its obligations under the Chicago Convention.

In isolation, few States could meet their obligations; in cooperation, almost every State can satisfy its own

SAR needs effectively and affordably and, at same time, assist other neighboring States to meet theirs.140

THE GLOBAL CONCEPT AND CONCEPT OF SERVICES

From an organizational viewpoint, the contemporary application of this principle of cooperation is

spelt out in the IAMSAR manual under the heading “The Global Concept”. The Manual defines the ICAO’s

goal as being “to provide a world-wide SAR system that will provide assistance to all persons in distress

regardless of nationality or circumstance.”141 It goes on to observe that the fastest, most effective and practical

way to achieve this goal is to develop regional systems associated with each ocean area and continent.142

Aviation organizations have a particular characteristics that set them apart from organizations in

general. They are part of a sub-set referred to as high technology and reliability organizations that provide

goods and services deemed to be critical to society. Nuclear energy and defense are cases in point. Defense is

high risk because of the venturous nature of military activities and because a mistake may lead to unacceptable

consequences.143

International aviation still enjoys low levels of risk but the accidents that do occur emphasize how the

industry is associated with extremely high stakes.144 Aeronautical SAR, risk wise, is set somewhere between

defense activity and regular aviation operations but is firmly placed in the context of extremely high stakes.

Within all these types of organizations, it is reliability rather than productivity that is the overriding goal. The

focus in these organizations- the focus in the provision of SAR – must be on extremely reliable operations.145

139 Ibid At 71 140 Ibid 141 Supra Note 1 142 International Maritime Organization, Iamsar Manual: International Aeronautical And Maritime Search And Rescue

Manual 2001 (O.M.I, 2002) 143 Supra Note 10 At 72 144 Ruwantissa Indranath Ramya Abeyratne, Aviation In Crisis 117 (Ashgate Publishing Ltd., 2004) 145 Ibid


There is a tension in the contemporary circumstances. At the same time as the nature of the SAR task

is demanding organizational stability and reliability, society is a subject to unprecedented and continuous

change. There is change technically, change socially, change economically and change politically. There is

only, ever, it seems, change. There have been dramatic improvements to the technical aspects of both aircraft

and air traffic management systems over the past few decades. At the same time, satellite technology has gone

a long way to minimizing the search element of search and rescue. The technology being brought to bear is at

once smart and complex. But while it has the potential for wide application and greatly improving system

effectiveness, it introduces a new realm for error in which cause and effect are much more difficult to find

out.146

In that regard, while there have been constant improvements in technology and management practices,

it is significant that human errors are remaining constant over time, as a result, accidents continue to happen

and the requirement for an effective SAR service will continue into the foreseeable future. Within the SAR

system itself, risk of operational error remains real, not least because of the sweeping changes in the

environment in which SAR is provided and the impact of these changes on the SAR work force.147

Some SAR organizations have responded decisively to contemporary pressures. With changes in the

demands on the service, some providers have reorganized to react more flexibly. They have, for example,

commissioned joint maritime and aeronautical RCCs and established work forces of multi-skilled operators.148

But as RCCs have responded to external forces, internal pressures have grown in turn and introduced scope

for errors of a different magnitude and type. This new circumstance has been brought about by changes to job

functions, responsibilities, and skill and knowledge requirements within the RCC.149

An increased reliance on IT has resulted, along with several benefits, in new challenges within the

RCC. The ever-greater capabilities of IT have been accompanied by increased complexities.150

Skill demands have grown and the cycle of change betting change has been reinforced. Indeed, in the

RCC, as in every modern workplace, new technology and the demands of industry and society have led to the

very re-conceptualization of work. As new work practices have evolved, those practices have spawned a

covering policy and that policy has given rise to expectations of ever-higher levels of service.151

146 Ibid At 118 147 ICAO/IMO Joint Working Group On Harmonization Of Aeronautical And Maritime Search And Rescue Available At

Http://Legacy.Icao.Int/Icao-Imo-Jwg/Meetings/Jwg-14/-Do-Cs/JWG_SAR14wp01.Pdf (Last Visited On August 7, 2014) 148 Ibid 149 Federal Aviation Administration, Federal Aviation Regulations/ Aeronautical Information Manual 2009 (Skyhorse

Publishing Inc., 2008) 150 Ibid 151 Supra Note 20


This has happened almost incidentally. All this has occurred in an environment of organizational

transition. Traditional organizational boundaries have become blurred, fused and uncertain.152 As a result,

there is a threat of SAR services being driven more by change and technology than by carefully considered

Standards developed in anticipation of the industry’s needs. Standards should be proactive, not reactive. It is

now time for planners and managers to catch this tiger by the tail and reassert their authority.153

On the one hand, the pressures of user requirements, technological innovation and social change are

demanding that the SAR system becomes more adaptable, innovative and sophisticated. On the other hand,

the establishment of standards ever further beyond the reach of some States is to guarantee weak sections in

the fabric of the global system. There is, then, a risk that the intervention of chance will exploit system

weakness and culminate in catastrophe. A regional organizational strategy can, however, strengthen the weak

links and lead to a more effective worldwide service coverage.154

THE PERSONAL DIMENSION: FOCUSING ON THE BIG PICTURE

There is another perspective that cannot be neglected. It takes us to the junction of organizational

change and workplace performance. It has to do with the impact of change on personal wellbeing. The steep

learning curves, the constant re-structuring and the high stakes of SAR activity are making RCC environments

characteristically volatile. The on-going volatility impacts on staff create stress, disillusionment, fear of

jobless and a general lack of uncertainty.155

After years, there is a growing realization that what is needed in high reliability systems is not just

technical investment but socio-technical investment. This requires, at the start, an acknowledgement that at

the core of operations, still and for the foreseeable future, are the humans.156

To advance this approach, we must come to a fundamental understanding of the nature of human needs,

of personality and motivation. Researchers agree that it is highly likely that motivation, to some extent, is a

product of and individual’s personality. Personality, further, will change, with the environment within which

persons function. Managers can strongly influence that environment.157

Workers, especially high achievers, seek after power, not so much power over others but opportunity

to give expression to their own potential, over tasks and over challenges. It’s for managers to so empower

them. There is, then, a substantial role for managers to play in facilitating frontline operator’s high

152 Ibid 153 Supra Note 22 154 Supra Note 17 At 120 155 Supra Note 1 156 Ibid 157 Supra Note 10 At 78


performance. By doing this, managers can both satisfy workers aspirations and proactively guard against

human error.158

It might be then that in hearing of human errors, managers detach a little and think of the source of

errors as the aircraft cockpit, the ship bridge or, in the case of SAR mission coordination, the RCC alone. That

would be a serious mistake. Some findings of accident investigations have highlighted the ineptitude of

managers and planners more than the front line personnel and exposed their procedures, arrangements and

system construction as primary accident causal factors.159

In summarizing the events leading to the capsize of the Herald of Free Enterprise, and after

acknowledging the active errors of the ferry crew, Mr. Justice Sheen said, “… the underlying faults lay higher

up in the company …from top to bottom, the body corporate was infected with the disease of sloppiness …”160

The principle is clear. Error attributable to human factors should be of as much concern to managers

as it is to front line operators. Both managers and staff, officers and men, have direct responsibility for safe

practice. Underpinning all safe practice must be a sound organization, sufficient training, proper procedures

and a lively, health work ethic.

In this connection, ICAO has recently produced a document entitled Human Factors Guidelines for

Air Traffic Management Systems,161 some of the content of which would be helpful to SAR managers. It gives

guidance on how a proactive approach to safety can assist in accident prevention. This, of course, is the

mainstay of preventive SAR.

CONCLUSION

In an aviation environment in which so much is changing: technology, organization and traffic density,

and yet much of consequence remains the same, the human factor being the most important, the challenge to

States is to apply the proven elements of the Chicago Convention in a way most relevant to contemporary

needs.162

This, in short, means to uphold the Standards of Annex 12 in a spirit of cooperation, with a vision that

extends beyond insular practices and geographic boundaries and as a willing participant in the global SAR

158 Ibid 159 M.A Butler And Verschoor-Diederiks, An Introduction To Air Law (Kluwer Law International, 2006) 160 Sheen, 1 Maurino, Reason, (Johnston & Lee, 1995) 161 Gorton Slade, Air Traffic Control Modernization 29, (Diane Publishing, 1998) 162 Supra Note 10 At 80


plan.163 With the challenges faced by State authorities are increasing in number and complexity, the provisions

of the Chicago Convention stand on a foundation of long and satisfactory service provision.

The researcher is of the opinion that these would continue to stand out the test and give lead in the

delivery of the special service of Search and Rescue well into the 21st century. Being partially correct in the

hypothesis, the researcher would like to conclude that the best strategy for optimizing work place performance

in the SAR domain and, at the same time, minimizing the incidence of operational errors, is to design systems

that are human-centered, make plans that are responsive to human capabilities and limitations, and give

encouragement for the full expression of workers potential.

163 Supra Note 34 At 30


A CRITICAL ANALYSIS OF THE CONCEPT OF DOUBLE TAXATION AVOIDANCE

AGREEMENT UNDER THE INCOME TAX ACT, 1961

Aayushi Jain164

Double Taxation is the imposition of two or more taxes on the same income, asset or financial

transaction. It refers to taxation by two or more countries of the same income, asset or transaction, for example

income paid by an entity of one country to a resident of a different country. The double liability is often

mitigated by tax treaties between countries.165

Double Taxation Avoidance Agreements are treaties between two sovereign states. Such Agreements

can also be between two countries which are not “sovereign” states in the full legal sense. Being Agreements

between two contracting states it was found that it would be useful to have a Model Agreement which could

be the basis for discussion between two states contemplating to conclude a Double Taxation Avoidance

Agreement. The League of Nations for the first time commenced work in this behalf in 1921 and produced in

1928 the first Model Bilateral Convention.166

It is not unusual for a business or individual who is resident in one country to make a taxable gain in

another. In some cases, this requires that tax be paid in the country of residence and be exempt in the country

in which it arises. In the remaining cases, the country where the gain arises deducts taxation at source and the

taxpayer receives a compensating foreign tax credit in the country of residence to reflect the fact that tax has

already been paid.167

Double Taxation is not specifically forbidden either under domestic law or even under treaties.

Bilateral double taxation treaties tend to avoid double taxation, but where tax benefit granted by one state are

cancelled by the other in absence of any specific provision in the agreement, there is an economic

disadvantage, which is not prohibited in general, a principle which has been universally accepted. In the

modern context, a transaction is not always confined to two countries, because of value addition in more than

one country, whether natural or because of planning. DTAA does not solve the problem of double taxation in

multinational transactions.168

164 Student, Department of Law, Calcutta University 165 Sumeet Kumar, Double Taxation Avoidance Agreements – A Brief Overview, Available At

Http://Www.Legalserviceindia.Com/Article/1304-Double -Taxation-Avoidance-Agreements.Html (Last Visited On 20th

June) 166 Ibid. 167 Ibid. 168 Ibid.


HISTORICAL DEVELOPMENT OF DOUBLE TAXATION AVOIDANCE AGREEMENT

Genesis of Double Tax Avoidance Agreement is, perhaps, the first step towards a law, which may

ultimately lead to an international society. Agreements between friendly States usually deal with non-

aggression, trading and exchange of information as between them. But they have not integrated the

countries for any length of time, as these agreements can be discarded easily as they have been formed.

International law has been more a matter of law by consent. An international law to regulate the conduct

of nations as between them has always been an objective of the academicians to establish peace in the

world. But what is known as international law has, by and large, been denoting a system of customary

and conventional rules of conduct, which are expected to regulate the intercourse between civilized

nations.169

Jagarmadha Rao, J., in a classic judgment in C.I. T. v. Vishakhapatnam Port Trust170 had referred to

the major developments in the field of tax treaties In this case, the assesse was itself a Government undertaking

engaged in the trading transaction with a non-resident German Company. It had undertaken to setup a plant

in India and the issue related to the extent of non-residents' Indian income liable to Indian tax and the

implication of the Double Tax Avoidance Agreement as between India and Germany.171 The judgment,

incidentally, refers to the development of law on DTAA, which have themselves gone through various

changes. Model forms applicable to all countries were first prepared by the fiscal committee of the League of

Nations in 1927. Later the said committee conducted meetings at Mexico during 1943 and in London in 1946

and proposed several minor variations.172

The OECD Model Convention though primarily meant for use by the OECD countries is often referred

to and the Commentaries applied in interpreting Agreements between non-OECD countries also. In addition

to the OECD Model, there was the UN Model Convention. Its origin lies in a resolution passed by the

Economic and Social Council of the U.N. in August 1967 and was published in 1980 in the form of Model

Double Taxation Convention between developed and developing countries.173

169 RAJARTNAM, S., VENKATARAMAIAH, B.V., TREATISE ON DOUBLE TAXATION AVOIDANCE

AGREEMENT 1.3 (Snow White Publications 2010). 170 (1983) 144 ITR (AP). 171 Supra Note 5 At 1.5 172 Ostime (Inspector Of Taxes) V. Australian Mutual Provident Society (1960) 39 ITR 210 (HL). 173 Supra Note 5 At 1.6.


Like all laws, international taxation laws, evolving through such double taxation relief and avoidance

agreements with some of them either incorporated or otherwise integrated with domestic law, is dynamic,

rapidly undergoing changes with developments in trade, new methods of communication especially the laws

relating to contract and sale of goods. The DTAA have also necessarily undergone changes every time they

are revised or when a new agreement is being arrived at. India has in the recent times relaxed its trade

restrictions, as a result of its international commitments, so that international taxation has become more

relevant than it has been for Indian trade not only for those who are either exporters or importers but also

because of the impact of international trade on local price of goods and services, since tax is a cost and a

significant cost at that. Interpretation of DTAA has not only an effect on pricing policy but also on the business

decisions of residents in undertaking cross border transactions.174

Double tax treaties along with the other laws relating to foreign exchange, company law and immigration

policy, policy relating to foreign investments play a major role in globalization. Double tax treaties only form

a part of international taxation but a significant part of the same as long as both countries have their own

system of taxation, whether restricted to the income arising within its jurisdiction or on global income of its

residents.175 India has comprehensive Double Taxation Avoidance Agreements with 79 countries. There are

agreed rates of tax and jurisdiction on specified types of income arising in a country to a tax resident of another

country.176 Under the Income Tax Act, 1961 of India, there are two provisions, Section 90 and Section 91,

which provide specific relief to taxpayers to save them from double taxation. Section 90 is for taxpayers who

have paid the tax to a country with which India has signed DTAA, while Section 91 provides relief to tax

payers who have paid tax to a country with which India has not signed a DTAA. Thus, India gives relief to

both kinds of taxpayers.177

CLASSIFICATION, OBJECTIVES, PATTERN AND INDIAN POLICY OF DTAA

Double taxation avoidance agreements, depending on their scope, can be classified as Comprehensive

and Limited. Comprehensive Double Taxation Agreements provide for taxes on income, capital gains and

capital, while Limited Double Taxation Agreements refer only to income from shipping and air transport, or

estates, inheritance and gifts. Comprehensive agreements ensure that the taxpayers in both the countries would

be treated equally and on equitable basis, in respect of the problems relating to double taxation.178

174 Ibid. 175 Supra Note 1. 176 Supra Note 5 At 1.15 177 Ibid At 1.16. 178 Supra Note 1.


The main object of a Double Taxation Avoidance Agreement is to provide for the tax claims of two

governments both legitimately interested in taxing a particular source of income either by assigning to one of

the two the whole claim or else by prescribing the basis on which tax claims is to be shared between them.179

The need and purpose of tax treaties has been summarized by the OECD in the 'Model Tax Convention

on Income and on Capital' in the following words:

It is desirable to clarify, standardize, and confirm the fiscal situation of taxpayers who are engaged,

industrial, financial, or any other activities in other countries through the application by all countries

of common solutions to identical cases of double taxation.180

The objectives of double taxation avoidance agreements can be enumerated in the following words:

First, they help in avoiding and alleviating the adverse burden of international double taxation, by laying down

rules for division of revenue between two countries; exempting certain incomes from tax in either country;

reducing the applicable rates of tax on certain incomes taxable in either countries. Secondly, and equally

importantly tax treaties help a taxpayer of one country to know with greater certainty the potential limits of

his tax liabilities in the other country. Still another benefit from the tax-payers point of view is that, to a

substantial extent, a tax treaty provides against non-discrimination of foreign tax payers or the permanent

establishments in the source countries vis-a-vis domestic tax payers.181

Double taxation agreements allocate jurisdiction with respect to the right to tax a particular

kind of income. The principle underlying tax treaties is to share the revenues between two countries. If each

country gets a reasonable share of tax revenues, the bilateral and multilateral trade prospers and the overall

tax collection also increases as a result of which both countries tend to benefit. A double tax avoidance

agreement deals by and large with business income, income from moveable property and from immovable

property.182

There are well established patterns of taxation of various types on income. The agreements provide of

allocation of taxing jurisdiction to different contracting parties in respect of different heads of income. In

general, the rules are to the following effect:

• Income from the business is taxed only in the resident country, if the business entity has no activity

in the source state; only on the source state, if there is a fixed place of business, i.e. Permanent

Establishment and to the extent it is attributable to that place.

179 Ibid. 180 Ibid. 181 Ibid. 182 Ibid.


• Income from immovable property arising to a non-resident is taxed primarily in the state of its

location, i.e. the source state.

• Income from movable property such as dividends, interests and royalties are primarily taxed in the

resident state, but the source state may impose a reduced tax.183

India primarily follows the UN model convention. The policy adopted by the Indian government in

regard to double taxation treaties may be worded as follows:

“Trading with India should be relieved of Indian taxes considerably so as to promote its economic and

industrial development. There should be coordination of Indian taxation with foreign tax legislation for Indian

as well as foreign companies trading with India. The agreements are intended to permit the Indian authorities

to cooperate with the foreign tax administration. Tax treaties are a good compromise between taxation at

source and taxation in the country of residence”.184

ANALYSIS OF THE PROVISIONS RELATING TO DTAA UNDER THE INCOME TAX ACT,

1961

Section 90 of the Income Tax Act, 1961 states as follows:

(1) The Central Government may enter into an agreement with the Government of any country outside

India —

(a) For the granting of relief in respect of income on which have been paid both income-tax

under this Act and income-tax in that country, or

(b) For the avoidance of double taxation of income under this Act and under the corresponding

law in force in that country, or

(c) For exchange of information for the prevention of evasion or avoidance of income-tax

chargeable under this Act or under the corresponding law in force in that country, or

investigation of cases of such evasion or avoidance, or

(d) For recovery of income-tax under this Act and under the corresponding law in force in that

country, and may, by notification in the Official Gazette, make such provisions as may be

necessary for implementing the agreement.

183 Ibid. 184 Ibid.


(2) Where the Central Government has entered into an agreement with the Government of any country

outside India under sub-section (1) for granting relief of tax, or as the case may be, avoidance of double

taxation, then, in relation to the assesse to whom such agreement applies, the provisions of this Act

shall apply to the extent they are more beneficial to that assesse.

(3) Any term used but used but not defined in this Act or in the agreement referred to in sub-section

(1) shall, unless it otherwise requires, and is not inconsistent with the provisions of this Act or the

agreement, have the same meaning as assigned to it in the notification issued by the Central

Government in the Official Gazette in this behalf.

Explanation- for the removal of doubts, it is hereby declared that the charge of tax in respect of a

foreign country at a rate higher than the rate at which the domestic company is chargeable, shall not

be regarded as less favorable charge or levy of tax in respect of such foreign company.

Section 90: Agreements with Foreign countries for relief against or avoidance of double taxation etc.

This section empowers the Central Government to enter in to agreement with foreign countries for the

granting of relief in respect of double taxation or for the avoidance of double taxation. In exercise of the

powers conferred by the corresponding provision in the 1922 Act and by this section, agreements with many

countries have been entered into for relief against or avoidance of double taxation.185

As regards income which accrues to a resident of India, in a country with which there is no such

agreement, relief is provided by section 91 of the Act.186

Scope of sub-section (1):

The four clauses in sub-section (1) lay down the scope of power of the Central Government to enter in

to agreement with another country. Clause (a) contemplates situations where tax has already been paid on the

same income in both countries and it empowers the Central to grant relief in respect of such double taxation.

Clause (b), which is wider than clause (a)187, provides that an agreement may be made for the 'avoidance of

double taxation of income under this Act and under the corresponding law, in force in that country’. This

clause cannot be extended to make provisions in agreements for situations not relating to double taxation.

However, it is not necessary that a situation regarding 'avoidance of double taxation' can arise when tax is

actually paid in one of the contracting countries.188 Moreover, as long as the objectives in these clauses are

185 VYAS, DINESH, KANGA PALKHIWALA VYAS THE LAW & PRACTICE OF INCOME TAX 1512 (Lexis Nexis

2008). 186 Ibid At 1513. 187 U0/ V. Azadi Bachao Andolan 263 ITR 706, 733 (SC). 188 Ibid.


sought to be effectuated by an agreement, the power of the Central Government cannot be said to have been

used in an ultra vires manner.189 Clauses (c) and (d) essentially deal with agreements made for the exchange

of information investigation of cases and recovery of income tax.190

With effect from April 2004, Clause (a) has been substituted to provide that an agreement may also be

entered into for granting of relief in respect of income tax chargeable under this Act and under the

corresponding law in force in that country, to promote mutual economic relations, trade and investment.191

With this amendment, the power of the Central Government has been greatly widened, and it can now enter

into agreements not only for the avoidance of double taxation, but also for exempting income from taxation.

It is clear from the language of the clause that this power can be used only for granting relief in respect of

income tax, and not to create any fresh charge, obligation or responsibility.192

EFFECT OF AGREEMENT:

The effect of an agreement made pursuant to this section as in under -

(i) if no tax liability is imposed under this Act, the question of resorting to the agreement would not

arise. No provision of the agreement can possibly fasten a tax liability where the liability is not imposed

by this Act.193

(ii) if a tax liability is imposed by this Act, the agreement may be resorted to for negativing or reducing

it.194

(iii in case of difference between the provisions of the Act and the agreement under section 90, the

provisions of the agreement prevail over the provisions of the Act and can be enforced by the appellate

authorities and the courts.195 However, as provided by sub-section (2) the provisions of the Act apply

to the assesse in the event that they are more beneficial to him.196

Where there is no specific provision in the agreement, it is the basic law i.e. the IT Act, 1961, will

govern the taxation of income.197 Where a double taxation avoidance agreement provides for a particular mode

of computation of income, the same should be followed, irrespective of the provisions of the Act.198 The

charging provisions in section 4 and section 5 of the Act defining 'total income' of either residents or non-

189 Ibid. 190 Supra Note 21 At 1513. 191 Observation Of SCI On Pp 751-53 In UO/ V. Azadi Bachao Andolan 263 1TR 706. 192 Supra Note 21 At 1513. 193 CIT V. Muthaiah 202 ITR 508, Approved In UOI V. Azadi Bachao Andolan 263 ITR 706 194 Ibid. 195 CIT V. Vishakhaptanam Port Trust 144 ITR 146; CIT V. Davy Ashmore 190 ITR 626; CIT V. Muthaiah 202 ITR 508 196 Abrahim Express V. UOI 212 ITR 31; Timken India V. CIT 256 ITR 460 197 CIT V. Daly Ashmore 190 ITR 626. 198 Ibid.


residents are expressly made subject to the provisions of this Act, which will include this section and the

agreements made there under.199

Where the Government of a State certifies that a person is resident of that State200 or has a permanent

establishment in that State201, the certification is binding on the other Government.202

'RELIEF AGAINST' OR 'AVOIDANCE OF':

If the agreement with the foreign country is under clause (a) for relief against double taxation and not

under clause (b) for the avoidance of double taxation, the assesse must show that the identical income has

been doubly taxed and that he has paid tax in both India and in the foreign country, on the same income.203 If

the assesse paid no tax but a percentage of his gross receipts by way of royalty to the foreign country, that

would not entitle him to double tax relief.204 If the tax has been overpaid in the foreign country and the excess

is repaid to the assesse later when the rate of currency exchange has altered in computing the double taxation

relief, the department cannot take into account such alteration in the rate of exchange.205

The time limit and form of application for claiming double taxation relief were dealt with in several

cases.206 The departmental practice of permitting 'provisional claims' for double taxation relief was held not

to be in violation of the Act.207

QUESTION OF VALIDITY OF AGREEMENTS MADE UNDER THIS SECTION:

The preamble to the Constitution of India acknowledges India as a sovereign republic and in the

Constitution; this sovereignty is zealously guarded by keeping the sovereign power with regard to entering

into agreements with foreign countries under absolute constitutional control. Under entry 14 to the Union List,

the matter included is 'entering into treaties and agreements with foreign countries and implementation of

treaties, conventions and agreements with foreign countries'.208

Thus, the exclusive power of the Parliament to make laws with regard to entering into treaties and

agreements is all encompassing and consequentially, includes the power to legislate in this regard in the field

of taxation and income. This specific power has been exercised by the Parliament by enacting section 90 of

the IT Act, 1961. Under section 90, the Parliament has delegated to the Central Government the power to enter

199 Azadi Bachao Case 200 Abrahim Express 201 CIT V. Lakshmi Textile 245 ITR 521. 202 Supra Note 21 At 1514. 203 CIT V. New Citizen Bank 58 ITR 468; CIT V. Indian Bank 61 ITR 632. 204 Ashanti V. Merrifield 19 TC 52. 205 Grieg V. Ashton 31 ITR 538. 206 CIT V. Burmah Oil 47 ITR 25; Allauddin V. ITO 52 ITR 900. 207 Ibid. 208 Supra Note 21 At 1515.


into an 'agreement' with the Government of any other country, and by notification in the Official Gazette make

such provisions as may be necessary for implementing the Agreement.209

The power under this section is to be exercised for the purpose of 'avoidance of double taxation' or for

granting relief where double taxation has already taken place. The Central Government therefore, has to stay

within the parameters of the powers delegated to it, and cannot beyond them.210

The scope of clause (a) of sub-section (1) has now been enlarged with effect from April 2004, and

questions regarding the validity of an agreement which relate to a period after that date must be viewed, in the

context of the new wider power conferred upon the Central Government.211

The Supreme Court, in the case of U.O.I v. Azadi Bachao Andolan212, exhaustively considered this section,

and has made, inter alia, the following observations:

(i) a delegate (in this case, the Central Government) of the legislature can exercise the power of exemption in

a fiscal statute.

(ii) the validity of the agreement made under this section is to be determined by ascertaining whether it is

within the parameters of the legislative provision.

(iii) the principles governing the interpretation of treaties are not the same as those governing the interpretation

of statutory language.213

This section has not empowered the Central Government to enter into an agreement with retrospective

effect.214 The Bombay High Court in CIT v. Tata Iron215, upheld the view that an agreement for the avoidance

of double taxation cannot apply retrospectively nor can it apply to contracts executed prior to the date of the

agreement.216

OECD MODEL CONVENTION AND COMMENTARIES:

In U.O.I v. Azadi Bachao Andolan217, the Supreme Court made reference to the OECD Model

Convention, 1977 and the commentaries thereon, where an expression in the agreement before it was adopted

from that Convention. Earlier, the AP High Court218, had, while referring to various foreign authorities,

209 Ibid. 210 Indian Express V. UOI 159 ITR 856. 211 Supra Note 21 At 1515. 212 263 1TR 706. 213 CIT V. V• SRM Finn 208 ITR 400. 214 Cf The Express Power To Make Rules With Retrospective Effect Under Section 295(4). 215 248 ITR 190. 216 Supra Note 21 At 1516. 217 263 ITR 706. 218 144 ITR 146.


approved observations to the effect that in view of the standard OECD models, an area of genuine 'international

tax law' was developing, and therefore, any person interpreting a tax agreement should consider the decisions

and rulings worldwide relating to similar agreements. Therefore, the model convection and commentaries may

be useful guides when the agreement before the court is similar to the model convention.219

In contrast, for the purposes of interpretation of another agreement, the Madras High Court220, found

reliance on the OECD Convention and commentaries inappropriate and unjustified. It noticed a wide range of

difference between the Model Convention and the agreement thereon and hence concluded that commentaries

on the Model Convention 'can be of no use and utility and cannot also afford a safe or reliable guide or aid for

such construction'.221

Sub-section (3):

This sub-section, applicable from April 2004, relates to terms used, but not defined in this Act or any

agreement made under sub-section (1). Such terms are to have the same meaning as assigned to them in any

notification issued in this behalf by the Central Government. However, the meaning of such term must not be

inconsistent with the provisions of the Act or the agreement; further, the term must be interpreted differently,

if the context so requires.222

Explanation to Section 90:

The Finance Act, 2001 has inserted an explanation to this section with retrospective effect from the

commencement of this Act, to clarify that the charge of tax in respect of a foreign company at a higher rate

than the rate at which a domestic company is chargeable, shall not be regarded as a less favourable charge or

levy of tax in respect of such foreign company, where the foreign company has not made the prescribed

arrangement for declaration and payment within India, of the dividends payable out of his income in India.223

Appeal & Reference:

An appeal for refund may be made under section 237 by an assesse entitled to relief under this section,

and from the order of the assessing officer, on such application for refund an appeal would lie to the CIT(A),

a second appeal to the tribunal and reference to the High Court.224

Section 90A of the Income Tax Act, 1961 states as follows:

219 Supra Note 21 At 1516. 220 208 ITR 400, 420-21. 221 Supra Note 21 At 1516. 222 Supra Note 21 At 1517. 223 Ibid. 224 Wallace V. CIT 26 ITR 241; Burma Oil V. ITT 33 ITR 794.


1. Any specified association in India may enter into an agreement with any specified association in

the specified territory outside India and the Central Government may, by notification in the Official

Gazette, make such provisions as may be necessary for adopting and implementing such

agreement,

(a) for the granting of relief in respect of

(i) Income on which have been paid both income-tax under this Act and income-tax in any

specified territory outside India; or

(ii) income-tax chargeable under this Act and under the corresponding law in force in that

specified territory outside India to promote mutual economic relations, trade and investment, or

(b) for the avoidance of double taxation of income under this Act and under the corresponding law in

force in that specified territory outside India, or

(c) for exchange of information for the prevention of evasion or avoidance of income-tax chargeable

under this Act or under the corresponding law in force in that specified territory outside India, or

investigation of cases of such evasion or avoidance, or

(d) for recovery of income-tax under this Act and under the corresponding law in force in that -

specified territory outside India.

2. Where a specified association in India has entered into an agreement with a specified association

of any specified territory outside India under sub-section (1) and such agreement has been notified

under that sub-section, for granting relief of tax, or as the case may be, avoidance of double

taxation, then, in relation to the assesse to whom such agreement applies, the provisions of this Act

shall apply to the extent they are more beneficial to that assesse.

3. Any term used but not defined in this Act or in the agreement referred to in sub-section (1) shall,

unless the context otherwise requires, and is not inconsistent with the provisions of this Act or the

agreement, have the same meaning as assigned to it in the notification issued by the Central

Government in the Official Gazette in this behalf.

Explanation 1. For the removal of doubts, it is hereby declared that the charge of tax in respect of a company

incorporated in the specified territory outside India at a rate higher than the rate at which a domestic company

is chargeable, shall not be regarded as less favorable charge or levy of tax in respect of such company.

Explanation 2. For the purposes of this section, the expressions


(a) Specified association means any institution, association or body, whether incorporated or not.

functioning under any law for the time being in force in India or the laws of the specified territory

outside India and which may be notified as such by the Central Government for the purposes of this

section;

(b) Specified territory means any area outside India which may be notified as such by the Central

Government for the purposes of this section.]

Section 91 of the Income Tax Act, 1961 states as follows:

(1) If any person who is resident in India in any previous year proves that, in respect of his income which

accrued or arose during that previous year outside India (and which is not deemed to accrue or arise in

India), he has paid in any country with which there is no agreement under section 90 for the relief or

avoidance of double taxation, income-tax, by deduction or otherwise, under the law in force in that

country, he shall be entitled to the deduction from the Indian income-tax payable by him of a sum

calculated on such doubly taxed income at the Indian rate of tax or the rate of tax of the said country,

whichever is the lower, or at the Indian rate of tax if both the rates are equal.

(2) If any person who is resident in India in any previous year proves that in respect of his income which

accrued or arose to him during that previous year in Pakistan he has paid in that country, by deduction

or otherwise, tax payable to the Government under any law for the time being in force in that country

relating to taxation of agricultural income, he shall be entitled to a deduction from the Indian income-

tax payable by him —

a) of the amount of the tax paid in Pakistan under any law aforesaid on such income which is

liable to tax under this Act also.; or

b) of a sum calculated on that income at the Indian rate of tax; whichever is less.

(3) If any non-resident person is assessed on his share in the income of a registered firm assessed as

resident in India in any previous year and such share includes any income accruing or arising outside

India during that previous year (and which is not deemed to accrue or arise in India) in a country with

which there is no agreement under section 90 for the relief or avoidance of double taxation and he

proves that he has paid income-tax by deduction or otherwise under the law in force in that country in

respect of the income so included he shall be entitled to a deduction from the Indian income-tax

payable by him of a sum calculated on such doubly taxed income so included at the Indian rate of tax

or the rate of tax of the said country, whichever is the lower, or at the Indian rate of tax if both the rates

are equal.


Explanation: In this section,

(i) The expression "Indian income-tax" means income-tax charged in accordance with the provisions

of this Act;

(ii) The expression "Indian rate of tax" means the rate determined by dividing the amount of Indian

income-tax, after deduction of any relief due under the provisions of this Act but before deduction of

any relief due under this chapter, by the total income;

(iii) The expression "rate of tax of the said country" means income-tax and super-tax actually paid in

the said country in accordance with the corresponding laws in force in the said country after deduction

of all relief due, but before deduction of any relief due in the said country in respect of double taxation,

divided by the whole amount of the income as assessed in the said country;

(iv) The expression "income-tax" in relation to any country includes any excess profits tax or business

profits tax charged on the profits by the Government of any part of that country or a local authority in

that country.

Section 91: Unilateral Relief in respect of Foreign Income Taxed Abroad

Sub-section (1) of this section grants unilateral relief in cases-where section 90 does not apply, subject

to the fulfillment of the following conditions:

(a) the assesse should be the resident in India in the previous year;

(b) the income should have accrued in fact outside India225 and should not be deemed under any

provision of this Act to accrue in India;

(c) the income should be taxed both in India and in a foreign country with which India has no agreement

for relief against or avoidance of double taxation226;

(d) the assesse should have in fact paid the tax in such foreign country by deduction or otherwise.

Unilateral relief under this section is available only in respect of the 'doubly taxed income', i.e. the part

of the income which is actually included in the assessor’s total income: the amount deducted under Chapter

VI-A is not doubly taxed and therefore, no relief is allowable in respect of such amount.227 Further, the section

225 Jeevanlal V. CIT 79 ITR 147. 226 Ramanathan V. CIT 88 ITR 169. 227 CIT V. Bhatt 185 ITR 592.


contemplates granting of relief calculated on income country wise and not on the basis of aggregation or

amalgamation of income from all foreign countries.228

This section should be literally construed; the dividend from a UK company, from which tax is deducted and

retained by the company, is entitled to relief under this section, and the passing of an assessment order in the

UK, in respect of such dividend is not necessary.229

On order that this section may apply, it is necessary that the foreign tax should be levied in a country with

which India has no agreement for relief against or avoidance of double taxation; but it is immaterial that the

tax paid in such foreign country is in respect of income arising in another foreign country with which India

has such an agreement.230

In similar circumstances, sub-section (3) affords relief to a non-resident in respect of his share in the foreign

income of a registered firm, which is assessed as resident in India. For determining the Indian rate of tax under

clause (ii) of the Explanation, abatement allowable under the agreement of avoidance of double taxation

between India and any other country should not be deducted from the Indian income tax.231

In Gamman India v. CIT232 , the Bombay High Court held that a relief under section 91 could not be claimed

in rectification proceedings under section 154, but the Calcutta High Court took a contrasting view in the case

of CIT v. United Commercial Bank.233

CONCLUSION

The regime of international taxation exists through bilateral tax treaties based upon model treaties, developed

by the OECD and the UN, between the Contracting States. India has entered into a wide network of tax treaties

with various countries all over the world to facilitate free flow of capital into and from India. However, the

international tax regime has to be restructured continuously so as to respond to the current challenges and

drawbacks.

Nearly all tax treaties provide a specific mechanism for eliminating double taxation which is still potentially

present. This mechanism usually requires that each country grant a credit for the taxes of the other country to

228 CIT V. Bombay Burmah 259 ITR 423 229 CIT V. Clive 133 ITR 636. 230 Supra Note 21 At 1520. 231 CIT V. Rajanagr Tea 97 ITR 405. 232 214 ITR 50. 233 206 ITR 641.


reduce the taxes of a resident of the country. The treaty may or may not provide mechanisms for limiting this

credit, and may or may not limit the application of local law mechanisms to do the same.

The basic issue which arises in the interpretation of a Double Taxation Avoidance Agreement is that of the

position where there is a conflict between the provisions of the Act and the provisions of the applicable Double

Taxation Avoidance Agreement. Section 90(2) of the Act makes it abundantly clear that where an agreement

for granting relief of tax or for avoidance of double taxation has been entered into, then, in relation to the

assesse to whom such agreement applies, the provisions of the Act to the extent that they are more beneficial

as compared to the provisions of the Double Taxation Avoidance Agreement would have to be applied. It

follows that where the provisions of the applicable Agreement are more favorable, compared to the provisions

in the Act, the provisions of the Agreement will prevail.

Hence, on a concluding note it can be stated that the hypothesis formulated by the researcher has been proved

correct partially. India has a comprehensive Double Taxation Avoidance Agreements with several nations for

the benefit granted to the assesse.


AN ANALYTICAL REVIEW OF THE DISCIPLINARY PROCEDURE UNDER THE

INTERNATIONAL CRICKET COUNCIL CODE FOR CONDUCT OF PLAYERS AND PLAYER

SUPPORT PERSONEL

Rahul Panwar234

INTRODUCTION

International cricket council, the governing body of world cricket, which has 105 countries currently in

membership, began its life with some very tentative steps. In 1907, Abe Baily, the president of the South

African cricket Association, wrote a letter to F.E Lacey, Melbourne Cricket Club Secretary and suggested the

formation of as IMPERIAL CRICKET CLUB. It was thereby stated that its function would be to formulate

set of rules and regulations to govern international matches involving England, Australia and South Africa.

He also wished to promote a Triangular Test series between the counties in England in 1909.235

A month later, under Lord Harris’s Chairmanship, a second meeting set the Imperial Cricket conference on

its way, when rules were agreed to control test cricket between the three nations. He prescribed at a second

meeting at the oval, where it was agreed that the membership of the ICC should comprise governing bodies

of cricket in counties within the Empire to which cricket teams are sent, or which send teams to England.236

From then onwards, the ICC met on an annual basis except during the war year. The main business of these

meetings was to set out future test tours, check that players were properly qualified and encourage the use of

turf pitches as against matting ones. Possible law changes also came up for discussion.

In 1964, Pakistan suggested the expansion on the ICC for the purpose of including non-test playing countries.

In the following year, the ICC had another name to International cricket conference.237 In July of the same

year, the ICC had another name change – to International Cricket Council – but still retains the three initials

that had served from its inception. The newly named organization had a wider authority and was not merely

confined to the making of recommendations to national governing bodies rather it could impose binding

decisions on members. The most far reaching effort of the changes at this time was the creation, in 1993, of

the post chief executive of ICC.238

234 Student, Institute of Law, Nirma University, Ahmedabad 235 Available At Http://Www.Icc-Cicket.Com/The-Icc/Overview.Php (Visited On August 5,2014) 236 Ibid 237 Available At Http://Www.Icc-Cricket.Com/The-Icc/About_The_Organisation/History.Php (Visited On August 5, 2014). 238 Ibid


As the international governing body for cricket, the international cricket council issued the following Mission

Statement.239

Providing a world class environment for international cricket;

Delivering major events across three formats;

Providing targeted support to members; and

Promoting the global game.

In pursuance to the aforementioned statement, the ICC adopted and implemented the “ ICC CODE OF

CONDUCT FOR PLAYERS and PLAYERS SUPPORT PERSONNEL” to maintain the public image,

popularity and integrated of cricket by providing an effective means to deter any participant from conducting

themselves improperly on and off the ‘Field of play’ or in a matter that is contrary to the ‘Spirit of cricket’

and a robust disciplinary procedure pursuant to which all matters of improper conduct can be dealt with fairly,

with certainty and in an expeditious manner.240

THE DISCIPLINARY PROCEDURE: AN INTRODUCTION

The ICC adopted and implemented the code of conduct for players and players support personnel as part of

the ICC’s continuing efforts to maintain the public image, popularity and integrity of cricket by providing an

effective means to deter any participant from conducting themselves improperly on and off the ‘field-of –

play’ or in a manner that is contrary to the ‘ spirit of cricket’ and a robust disciplinary procedure pursuant to

which all matters of improper conduct can be dealt with fairly, with certainty and in an expeditious manner.241

The scope of this code under article 1 extends all the players and players supports personnel as have been

defined in the Appendix to the code and all such persons are automatically bound by this code. Under the

Appendix to this code, a player has been defined as any cricketer who is selected in an playing or touring team

or squad that is chosen to represent a national cricket federation in any international match or series of

international matches and also a ‘player support personnel’ is defined as any coach, trainer, manager, selector,

team officials, doctor, physiotherapist or any other person employed by, representing or otherwise affiliated

to a playing or touring team or squad that is chosen to represent a national cricket federation in any

international match or series of international matches.242

239 Supra Note 1. 240 Available At Http://Www.Icc-Cricket.Com/Rules_And_Regulations.Php (Visited On August 6, 2014). 241 Available At Http://Www.Icc-Cricket.Com/The-Icc/Overview.Php ( Last Visited On August 6, 2014). 242 Appendix-1 ‘Definitions’ 13.27 The I.C.C CODE OF CONDUCT FOR PLAYER AND PLAYERS SUPPORT

PERSONNEL Available At Www.Usaca.Org/Docs/ICC%20Code%20of%20conduct.Pdf (Visited On August 6, 2014).


Article 2 of the deals with the various forms of the offences committed by the player or even a player support

personnel in contravention to the terms of the code.243 Moreover the code provides for several notes in the

code for the simple purpose of providing guidance to the nature and examples of certain documents, which

might be prohibited by a particular article and should not be read as an exhaustive or limiting list of conduct

prohibited by such article.

Thus, the various offences as mentioned in the code have been categorized as Level 1, Level 2, Level 3, Level

4 offences, these offences have been broadly describe under Article 2 of the Code of conduct offences. This

Article also enshrines the concept of minimum over rate offences244, which also forms the part of offence

committed against the principle and spirit of the game.

Under the disciplinary procedure of this code, it is important to note that in case of commissions of any

offences under the ambit of level 1, level 2, and minimum over rate offence, the prescribed procedure under

Article 5.1 is to be followed. In case of any offences under level 3 and/or level 4, the procedure that must be

followed has been highlighted under Article 5.2 of the code. Finally, the last part of the Disciplinary Procedure

includes the general principle that are to be considered while following the guidelines as enshrined in the code.

Thus, in a nutshell, it can be stated that the procedure under the ICC Code can Categorically divided into three

slots, where the first slot deals with level 1, level 2, and maximum over rate offences, the second deals with

level 3 and level 4 offences and the third determines the general principles of procedure to be considered under

the code.

THE DISCIPLINARY PROCEDURE FOR LEVEL 1, LEVEL 2 AND MINIMUM OVER RATE

OFFENCES

Where a matter proceeds to a hearing for adjudication on Level 1, Level 2 and minimum over rate offences

such cases is then referred to march referee for adjudication in accordance with the procedure prescribed under

Article 5.1 of the Code.

The first and foremost procedure is of ‘hearing’. The hearing takes place at the time specified in the ‘ Notice

of charge’ which in the absence of exceptional circumstances should not be more than thirty six hours after

the receipt of the notice of charge and subject to proviso under Article 5, in the country in which the alleged

offence was committed .245 This provision is also subject to the discretion of the match referee who may

determine the date and place of hearing in any case of good cause shown by the player or player support

243 Article 2 Ibid. 244 Article 5.1, Ibid 245 Article 4.1, Ibid.


personnel.246 The provision also state that no hearing shall be convened at the time during which the

international match in relation to which the alleged offence took place, remains in progress.247

Moreover the procedure followed at hearing is at the discretion of the match referee, provided that the hearing

conducted in a manner which offers the player and player support personnel a fair and reasonable opportunity

to present evidence (including the right to call and to question witness by telephone or video conference where

necessary), address the march referee and present his/her case.248 Thus, even though huge power vested with

the match referee, yet the principle of natural justice cannot be done away with.

The provision also specifies that the hearing should be conducted or convened in English translations have to

be mandatorily of any non-English document that have been put before the match referee.249

In cases where video evidence of the alleged offence is available at the hearing, then, it may be relied upon by

any party, given that all other party shall have the right to make such representation in relation to it.250

The Article also provides for the various persons to remain present during the hearing of any alleged offence

as mentioned above, these persons are as follows251

a) The player or player support personnel who has been charged with the alleged offences; and

b) The person who lodged the report, (or, in case of the ICC’s chief executive officer, his/her

representative nominee).

c) One of the team captain, team vice-captain or team manager of the team that the player of player

support personnel represents may also attend such a hearing to provide additional support and

assistance to the player or player support personnel.

Such above person shall have the right to be represented at the hearing by such representative which may even

include a legal counsel of his/her or its own choosing, where the person lodging the report is an umpire or the

ICC’s Chief Executive officer, then such person shall be entitled to be represented by a representative of the

ICC’s Legal department.252

In any situation where any player or player support personnel or his/her representative is not present at hearing,

such absence does not prevent the match referee to proceed with the hearing and issue a ruling as the referee

may deem fit in accordance with the offence charged.253 At the end of a hearing, further evidence or further

246 Article 5.1.1, Ibid. 247 Ibid. 248 Article 5.1.2, Ibid 249 Article 5.1.3, Ibid 250 Article 5.1.4, Ibid 251 Article 5.1.5, Ibid 252 Article 5.1.6, Ibid 253 Article 5.1.7, Ibid


time is required to consider the evidence that has been presented, the referee shall adjourn the hearing for an

appropriate period of time and make such directions as requisites.254 Alternatively at the end of hearing, the

referee shall confirm the players’ or player support personnel’s admission to the offence that has been charged

and thereafter announces the decision in black and white accompanied with reasons setting out the sanctions

imposed, either a fine or a suspension, the amount of fine or the period suspension, and a mention as to the

right to appeal against the present decision as have been provided under Article 8.255

Further article 5.1 provides that where any player or player support personnel has failed to respond to the

notice of charge, in such cases256

a) The match referee shall adjourn the hearing for a period not less than ten minutes and not more than

twenty four hours, following which the hearing is re-convened and there is a verbal announcement of

the finding as to whether a code of conduct offence has been committed;

b) Where the match referee determines that a code of conduct offence has been committed , the player or

player support personnel request a short adjournment of not more than thirty minutes to prepare any

submission that might be made in relation to appropriate sanction that ought to be applied and;

c) As soon as possible after the conclusion of the hearing and, in any event, no later than forty eight hours

thereafter, the match referee will announce his/her decision in writing, with reason setting out;

a. The finding whether the code of conduct offence had been committed;

b. What sanction, if any, are to be imposed (including any fine and/or period of suspension);

c. The date that any period of suspension shall come into force and effect; and

d. Any right of appeal that may exist pursuant to Article 8.

The Match referee shall have the discretion to announce the substance of the decision prior to the issue of the

written reasoned decision and a copy of the written reasoned decision has to be provided to the player or player

support personnel, the CEO of the player or player support personnel’s National cricket federation, and the

ICC’s cricket operation manager.257

The match referee’s decision is to be considered as a complete and final disposition of the manner and which

would be binding on all parties, but this is subject to the provision of appeal available under Article 8 of the

Code. 258

THE DISCIPLINARY PROCEDURE FOR LEVEL 3 AND LEVEL 4

254 Article 5.1.8, Ibid 255 Article 5.1.9.1(A), Ibid 256 Article 5.1.9.2, Ibid 257 Article 5.1.10/11, Ibid 258 Article5.1.12, Ibid


Where a matter proceeds to be hearing for adjudication on Level 3 and Level 4, such case is then refereed to

the judicial commissioner for adjudication in accordance with the procedure prescribed under the Article 5.2

of the code.

As soon as reasonably possible, the ICC shall appoint one member from the ICC’s code of conduct of the

commission to sit as the judicial commissioner to hear the case. The appointed member shall be independent

of the parties, must have had no prior involvement with the case and shall not be from a country participating

in the international match in relation to which, the alleged offence was committed. The judicial commissioner

shall convene a preliminary with the ICC and its legal representatives, together with the player or player

support personnel and his/her legal representative.259

The preliminary hearing should take place as soon as possible by telephone conference call unless the judicial

commissioner determines otherwise.260 This non participation, without compelling justification, of the player

or player support personnel or his/her representative at the preliminary hearing shall not prevent the judicial

commissioner from proceeding with the preliminary hearing, irrespective of any written submission made on

behalf of the player or player support personnel.261

The Basic rationale behind conducting the preliminary hearing is to allow the judicial commissioner to address

any preliminary issue that need to be resolved prior to the hearing date. The provision elaborates functions of

the commissioner, which are as follows262:

a) To determine the date upon which the full hearing shall be held which shall not exceed more than

fourteen days;

b) To establish the date reasonably in advance of the date of the full hearing by which:

1) The ICC shall submit an opening brief with argument on all issues that the ICC wishes to raise

at the hearing and a list of the witnesses that the ICC intends call at the hearing and enclosing

copies of the exhibits that the ICC intends to introduce at the hearing;

2) The player or player support personnel shall submit an answering brief, addressing the ICC’s

arguments and setting out arguments on the issues that he/she wishes to raise at the hearing, as

well as a list of the witness that he/she intends to call at the hearing; and

3) The ICC may submit a reply brief, responding to the answer brief of the player or player support

personnel and listing any rebuttal witnesses;

259 Article 5.2.2, Ibid 260 Ibid 261 Ibid 262 Article 5.2.3.1/2/3,Ibid


c) Make such order that the judicial commissioner shall deem appropriate in relation to the production of

relevant document and/or other materials between the parties.

Hearing before the judicial commissioner shall take place in the country in which the alleged offence was

committed and the procedure followed at the hearing shall be at the discretion of the judicial commissioner

provided the principle of the natural justice are adhered to strictly.

The hearing shall be in English and the cost of translation was borne by the party offering the documents. The

judicial commissioner shall make arrangements to have the hearing recorded or transcribed. If requested by

the player or player support personnel, the ICC shall also arrange for an interpreter to attend the hearing.263

Under this provision, the following individuals are needed to remain present unless exceptional circumstances

apply264

a) The player or player support personnel who has been charged with the alleged offence;

b) The person who lodged the report (or, in case of the ICC’s Chief executive officer, his/her

representative/ nominee ); and

c) A representative of the ICC’s legal department ; and

d) One of the team captain, team vice-captain or team manager of the team that the player or player

support personnel represent may also attend such a hearing to provide additional support and assistance

to the player or player support personnel.

The non-attendance of the player or player support personnel or their representative at the hearing shall not

prevent the judicial commissioner from proceeding with the hearing whether or not any written submission

are made on his/her behalf. At the end of the hearing, where the judicial commissioner consider that further

evidence or further time is required , such commissioner shall adjourn the hearing for an appropriate period

of time and make such direction as may be necessary.265

Alternatively, at the end of hearing, the commissioner shall confirm the player or player support personnel

admission to the offence that has been charged and thereafter announce the decision in black and white

accompanied with the reason setting out the sanction imposed, either a fine or a suspension, the amount of

fine or the period of suspension, and a mention as to the right to appeal against the present decision as have

been provided under Article 8.266 In any event of any failure to respond to the notice of charge, the powers of

judicial commissioner are similar to those of a match referee as mentioned above.

263 Article 5.2.6, Ibid. 264 Article 5.2.8(A)(B)(C), Ibid. 265 Article 5.2.11, Ibid. 266 Article5.2.12 (A), Ibid.


The judicial commissioner shall have the discretion to announce the substance of his/her decision prior to the

issue of the written reasoned decision along with the copy of it to be provided to the player or player support

personnel, the CEO of the player or player support personnel’s national cricket federation, and the ICC’s

Cricket operation manager.267

THE GENERAL PRINCIPLES OF PROCEDURE

The provisions of the code also entails the general principle that have to be considered during any procedure

to be followed in case of any offence committed in contravention to the code. The following are the principles

that have been set out in the code268:

a) Where a report is filed by more than the one individual then the player or player support personnel

alleged to have committed the offence would only be served with one notice of charge in accordance

with the procedure.269

However, all person who filled a report or, in the case of the ICC’s Chief Executive office, his/her

representative/ nominee in relation to the alleged offence are required to attend the hearing before the

match referee or judicial commissioner.270

b) Where two or more player or player support personnel are alleged to have committed the offence under

the code of conduct, they may both be dealt with at the same hearing where the proceedings arise out

of the same incident of set of facts, or where there is a clear link between separate incidents, provided

that the code of conduct permits the offences to be determined by the same adjudicator.271 The

provision provides the clarification that:

1) Any number of level 1 offences and/or level 2 offences can all be determined by a match

referee at the same hearing; and

2) Any number of level 3 offences and/or level 4 offence can all be determined by a judicial

commissioner at the same hearing; but

3) A level 1 offence or level 2 offences cannot be determined at the same hearing as a level 3

offence or a level 4 offence and separate proceeding should therefore be issued in relation

to each alleged offence.

(c) Where a player or player support personnel is alleged to have committed more than one breach of the

code of conduct during, or in relation to the international match, then all of the alleged offences may

267 Article 5.2.14, Ibid. 268 Article5.3-5.9, Ibid. 269 Article 5.3, Ibid. 270 Ibid. 271 Article 5.4(1) (2) (3), Ibid.


be dealt with the same hearing, provided that the code of conduct permits the offences that are alleged

to have been committed to be determined by the same adjudicator.272

(d) Any failure or refusal by any player or player support personnel to

provide assistance to a match referee or judicial commissioner in connection with any charge made pursuant

to this code of conduct may constitute a separate offence.273

e) Where a match referee is, or becomes unwilling or unable to hear a case, then the ICC’s Head of legal shall

have the discretion to appoint the ICC’s Chief Referee or such other referee as the ICC deems to be appropriate

in all the Circumstances.274

Where the ICC’s Chief Referee or such other referee is unwilling or unable to hear the case, a member of the

ICC’s Commission shall be a replacement to the match referee and all the remaining procedure will apply

accordingly.275

f) Where a Judicial commissioner is, or becomes unwilling or unable to hear a case, then the ICC’s Head of

Legal shall have the discretion to appoint another member of the ICC’s Commission shall be replacement to

the judicial commissioner and all the remaining procedure will apply accordingly.276

g) The ICC will issue a public announcement regarding any decision of the match referee or judicial

commissioner made under the code, as may be reasonably practicable after the decision has been

communicated which may include details of the offence committed and the sanctions imposed. Until such

time as a public announcement is published, all parties and participants in the proceedings shall treat such

proceedings as strictly confidential.277

CONCLUSION

After a perusal through the various provisions of the ICC code of conduct for players and player support

Personnel, it can be deduced that the disciplinary procedure set out under this code is in conformity with the

principle of natural justice.

The match referee and the judicial commissioner, as the case may be, have a wide discretionary authority

under this code, which empowers them to determine the procedure to be followed during the hearing by the

parties, and such other authority as may be required from time to time. Even though such discretion may be

272 Article 5.5, Ibid. 273 Article 5.6, Ibid. 274 Article 5.7, Ibid. 275 Ibid. 276 Article 5.8, Ibid. 277 Article 5.3, Ibid.


huge, it is not absolute and is subject to the various terms and conditions of the Code, fairness and

reasonableness and the principle of natural justice.

It can also be stated that the disciplinary procedure as set out under this code, under the ‘General Principles

of procedure’ clearly determines that Level 1, and Level 2 offences may be heard during another set of hearing.

The exceptional to this is that a Level ½ offence cannot be heard along with level ¾ offence and offence shall

have to be decide separately.

Also, the general principles clearly provide that once the appropriate authority in relation to any offence has

given a final decision, the ICC make a public announcement about such decision as soon as it would be

reasonably practicable. But until such decision is published, the entire proceeding are to remain confidential.

Thus, it can be concluded that as per Bertrand De Speville, he has made a total of 27 recommendations278

stated that the decision to bring disciplinary proceedings should be taken by the prosecutor, whether internal

or external. Also, it mentions that minor breaches of any of the ICC’s Code or rules of conduct should not be

prosecuted before a tribunal but should be addressed by the appropriate ICC official or domestic authority on

behalf of the ICC or, in the case of ICC official and staff, by the relevant ICC head of department or the CEO

of the ICC. The ICC has made reservations against the same and is still to make a call on such suggestions.

278 Speville, Bertrand De, NOTE TO ICC EXECUTIVE BOARD, Available At Http://Static.Icc-

Cricket.Com/Ugc/Document/DOC_A64F4EDDCA2CBF74012DAE8E79F3779D_1328108025248_287.Pdf (Visited On

August 6,2014)

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