Volume 3, Issue 4, December 2015 INDIAN JOURNAL OF LEGAL Pijlp.in/ijlp/imageS/IJLP-Volume-3, Issue-4,-Dec-15.pdf · OLUME INDIAN JOURNAL OF LEGAL PHILOSOPHY ISSN : 2347- 4963; IMPACT

Volume 3, Issue 4, December 2015

INDIAN JOURNAL OF LEGAL PHILOSOPHY

Email: [email protected] website : www.ijlp.in

Disclaimer No part of this publication may be reproduced or copied in any form by any means without prior written permission of Chief Editor of IJLP. The Editorial Team of IJLP holds the copyright to all articles contributed to this publication. The views expressed in this publication are purely personal opinions of the authors and do not necessarily reflect the views of the Editorial Team of IJLP. Though all efforts are made to ensure the accuracy and correctness of the information published, the Editorial Team of IJLP is not responsible for any errors caused due to oversight or otherwise.

© IJLP, December 2015, All Rights reserved.

Editorial Team

Editor-in- Chief

Shaik Mohammed Ismail

Managing Editor Shaik Mohammed Haroon

Editorial Board

P. Bayola Kiran Delhi Chandana

Rashmi Josyula Kavya Nekkanti

Krishna Thej Yashwanth Kalepu

Associate Editors

Ayush Jaiswal Dhruthi Batchu

© Editor-in-Chief , IJLP - Dec 2015

Typeset and Printed in India www.ijlp.in

IJLP, Indian Journal of Legal Philosophy (ISSN: 2347-4963) is a edited, peer reviewed quarterly publication which focuses on all aspects of Law. IJLP aims to facilitate -students, teachers, scholars and others to write papers on various contemporary issues and current trends in law.

ISSN: 2347- 4963

Shaik Mohammed Ismail Editor-in-Chief

INDIAN JOURNAL OF LEGAL PHILOSOPHY Proddatur, Andhra Pradesh – India, www.ijlp.in

Editorial ……..

Law grows and evolves with and also brings about development and necessary change in every walk of life. The objective of law must be and indeed it is its progressiveness and must move in sync with needs of the time. The new challenges which inevitably emerge must be addressed through extensive research and dialogue. To quote Elie Wiesel, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”

Through the Indian Journal of Legal Philosophy, we aim to provide a platform for those in the legal fraternity and others interested in the field to voice their opinions freely and openly. The rationale behind having a peer reviewed journal with an open and broad perspective is to encourage different ideologies and points of view not only from those in the legal community, but also from the general populous having an interest in legal issues. The articles in the journal are from diverse fields of law and cover several relevant and contemporary issues.

(Shaik Mohammed Ismail)

Volume 3 Issue 4 Dec 2015

C O N T E N T

1 The National and International Norms and Treaties for Old Age Protection

Dr. Tanaya Tarai

1

2 The Legislative Vision on Management of Biomedical Waste- A Critical Analysis

Dr. Sarbeswar Sahoo

9

3 Extension of Right to Life under Article 21 to Animals: A Note on the basis of Verdict in Animal Welfare Board of India v. A. Nagaraja & Ors. Case

Dr. Aneesh V. Pillai

16

4 A Conceptual Study of Philosophy of Plea-Bargaining :Indian Perspective

Dr. Rehana Shawl

27

5 Social and Judicial Response to Bollywood's Freedom of Expression

Sarvesh Kumar Shahi & Ms. Lipika Sharma

34

6 Transitional Justice: Approaches to Reconciliation in Post Conflict Societies

Arup Banerjee

51

7 Global Inequality and International Trade: Can the Goal of Global Distributive Justice be Achieved?

Ankita Pandey & Anand Verma

65

8 An Exploration of The Legal Provisions to Safeguard the Victims Against the Preventive Detention in India

Bandna Shekhar & Dr. Sidheswar Patra

78

9 Inheritance Rights of Preferential Heirs of a Male Hindu Dying Intestate: A Glimpse of Anomalies

Priyanka Goswami

94

10 The Custody of Child : A Controversial, Complicated and Conflicting Issue under Indian Law

Khilari Ram Meena

106

11 An Explanatory Analysis of Collision Convention 1910, 1952 And 1972 with Respect to Liability and Claims

Chhote Lal Yadav

112

12 Euthanasia: Right to Death. Some Deductions from Religious-Ethical Debate

Rajeev Kumar

122

13 Droit Administratif: An Important Machinery of Administrative Justice System

Ankita Bisen

132

14 Applicability of The Doctrine of Speaking Orders to Administrative Tribunals

Abdul Sajid

152

15 Capital Punishments: Need For a Relook

Sameena Bazmoul

156

16 Labour Law Reforms: Labour Code on Industrial Relations Act

Ankita Gehlot

162

17 Indian Double Taxation Avoidance Agreements

Raghav Bimal

169

IND I A N J OU R N AL O F LE G AL PHI L O SO PHY ISSN : 2347- 4963; IMPACT FACTOR : 1.116

VOLUME 3, ISSUE 4, DECEMBER 2015

THE NATIONAL AND INTERNATIONAL NORMS AND TREATIES FOR OLD AGE PROTECTION

1*Dr. Tanaya Tarai Vice-Principal

Ageing is a natural process, which inevitably occurs in human life cycle. Ageing refers to a decline in the functional capacity of the organs of the human body, which occurs mostly due to physiological transformation such as wrinkles and liver spots on the skin, change of hair colour to gray or white; lessened hearing; diminished eyesight; slower reaction times and agility; reduced ability to think clearly; difficulty recalling memories; greater susceptibility to bone diseases such as osteoarthritis. In fact the old age cannot be defined exactly because it does not have the same meaning in all societies. People can be considered old because of certain changes in their activities or social roles. Examples: people may be considered old when they become grandparents, or when they begin to do less or different work and retirement. There is often a general physical decline, and people become less active. Old age consists of ages nearing or surpassing the average life span of human beings, and thus the end of the human life cycle. This is one form of ageism.

Old age brings with a host of challenges in the life of the elderly, which are mostly engineered by the changes in their body, mind, thought process and the living patterns, it never imply that everything has been finished. The senior citizens constitute a precious reservoir of such human resource as is gifted with knowledge of various sorts, varied experiences and deep insights. May be they have formally retired, yet an overwhelming majority of them are physically fit and mentally alert. Hence, given an appropriate opportunity, they are in a position to make significant contribution to the socio-economic development of their nation.

*Vice- Principal, Ganjam Law College, Berhampur.

1



The population of the elderly persons has been increasing over the years. As per the UNESCO estimates, the number of the aged 60+ is likely to 590 million in 2005. The figure will double by 2025. By 2025, the world will have more elderly than young people and cross two billion mark by 2050. In India also, the population of elder persons has increased from nearly 2 corers in 1951 to 7.2 corers in 2001. In other words about 8% of the total population is above 60 years. The figure will cross 18 % marks by 2025.

Some problems of the old Age faced by the elderly persons are :

(i) Economic problems, include such problems as loss of employment, income deficiency and economic insecurity.

(ii) Physical and physiological problems, include health and medical problems, nutritional deficiency, and the problem of adequate housing etc.

(iii) Psycho-social problem which cover problems related with their psychological and social maladjustment as well as the problem of elder abuse etc.

National Efforts for the Protection of Elderly Persons:

The constitutional protections provided under the Constitution of India to the old aged persons are:

The constitution of India under Article 41 provides the Right to work, to education and to public assistance in certain cases. The State shall, within the limits of economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 47of the Constitution states that it is the duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the

2



State shall Endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.2

The State shall also promote with special care the educational and economic interests of weaker sections of people and shall protect them from social injustice and all forms of exploitation under Article 46 of the Constitution of India.

The Code of Criminal Procedure protects the elderly persons by providing them maintenance. Prior to 1973, there was no provision for maintenance of parents under the Code of Criminal Procedure. But In 1973 for the first time the Code of Criminal Procedure introduced in Sec. 125 the maintenance of parents. It is also essential that the parent establishes that the other party has sufficient means and has neglected or refused to maintain his parent who is unable to maintain himself. It is important to note that Criminal Procedure Code is a secular law and governs persons belonging to all religions and communities. Daughters, including married daughters, also have a duty to maintain their parents.3 Section 125 (1) (d) of code of Criminal Procedure, 1973 is a provision in Indian Law whereby a Magistrate can order children to make a payment of monthly allowance as maintenance to their Parents (father or mother).

Bombay High Court in Pandurang Bhaurao Dabhade vs Baburao Baburao Dabhade and another said: The parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled before ordering maintenance in favour of a father or a mother against their married daughter.4

Moral duty to maintain parents is recognized by all people and different personal laws. But the position and extent of such liability

2 See Constitution of India 3 Criminal Procedure Code. 4 Pandurang Bhaurao Dabhade vs Baburao Baburao Dabhade and another (1980 CriLJ 256 = 1980 (82) BOMLR 116)

3



varies from community to community. Amongst the Hindus, the obligation of sons to maintain their aged parents, who were not able to maintain themselves out of their own earning and property, was recognized even in early texts. And this obligation was not dependent upon, or in any way qualified, by a reference to the possession of family property. It was a personal legal obligation enforceable by the sovereign or the state. The statutory provision for maintenance of parents under Hindu personal law is contained in Sec 20 of the Hindu Adoption and Maintenance Act, 1956. This Act is the first personal law statute in India, which imposes an obligation on the children to maintain their parents. As is evident from the wording of the section, the obligation to maintain parents is not confined to sons only, but daughters also have an equal duty towards parents. It is important to note that only those parents who are financially unable to maintain themselves from any source, are entitled to seek maintenance under this Act.5

The Muslim Law also recognizes the duty of Children to maintain their aged parents. Both sons and daughters have a duty to maintain their parents. The obligation, however, is dependent on their having the means to do so.

According to Mulla (1) the children in easy circumstances are bound to maintain their poor parents, although the latter may be able to earn something for themselves. (2) A son though in strained circumstances is bound to maintain his mother, if the mother is poor, though she may not be infirm. (3) A son, who though poor, is earning something, is bound to support his father who earns nothing. 6

Under Hanafi law, Parents and grandparents in indigent circumstances are entitled, to maintenance from their children and grandchildren who have the means, even if they are able to earn their livelihood.

5 See Hindu Adoption and Maintenance Act, 1956. 6 See Mahamedan Law.

4



The Christians and Parses have no personal laws providing for maintenance for the parents. Parents who wish to seek maintenance have to apply under provisions of the Criminal Procedure Code.

The Indian Parliament felt that the elderly and senior citizens of the country required care and attention and also protection of their life and liberty. It further felt that the young generation was failing in its duty to take adequate care of its elderly citizens, including parents, relatives or other members of the society. The major benefits in the Act includes: Monthly maintenance up to Rs.10,000/- , punishment of Rs.5000/- or jail for three months or both for not paying the monthly allowance by children's or relative, 90 days time bound disposal, no need of advocate.7

In January 13, 1999 The Government of India approved the National Policy for Older persons in order to accelerate welfare measures and empowering the elderly in ways beneficial for them. This policy included some major steps such as (i) Setting up of a pension fund for ensuring security for those persons who have been serving in the unorganized sector, (ii) Construction of old age homes and day care centers for every 3 to 4 districts, (iii) Establishment of resource centers and re-employment bureaus for people above 60 years, (iv) Concessional rail, air fares for travel within and between cities, i.e., 30% discount in train and 50% in Indian Airlines. (v) Enacting legislation for ensuring compulsory geriatric care in all the public hospitals.

The Ministry of Justice and Empowerment has announced regarding the setting up of a National Council for Older Person, called age well Foundation. The National Policy of Older Persons recognizes a person who is 60 years of age and above as a Senior Citizen. It resulted in the creation of the National Council of Older Persons. This Council is taking steps to ensure that the uniform age of 60 years and above is taken into account for availing facilities and benefits to senior citizens. Prompt settlement of pension, provident fund, gratuity, health

7 Meri News.

5



care etc for the aged ones have been encouraged under the Government policy.

To eliminate the agony and sufferings of this vulnerable section of society, the Parliament enacted a law of Maintenance and Welfare of Parents and Senior Citizen Act, 2007 in Dec 2007, whereby state governments were required to constitute maintenance tribunal within six weeks of enforcement of the Act. The Bill states that adult children and grandchildren who are earning members are required to maintain and take care of their parents or grandparents. Maintenance refers to the provision of proper food, clothing, housing and medical treatment.

The benefit of Section 80C of the Income Tax Act, 1961 has been extended to the investments made under 5-Year Post Office Time Deposits Account and Senior Citizens Savings Scheme, with effect from 01.04.2007. According to Sec.88-B, 88-D and 88-DDB of Income Tax Act there are discount in tax for the Aged persons.

Jeevan Dhara Yojana, Senior Citizen Unit Yojana, Medical Insurance Yojana all these scheme for the benefit of aged person are being provided by the Life Insurance Corporation of Inida.

Government also gives a higher rate of interest to Senior Citizens on certain Savings schemes which it runs through its large network of Post Offices (Senior Citizen Saving Scheme) and Public sector Banks8

International Efforts:

In Argentina the first debate on ageing was raised at the United Nations in 1948. The issue was again placed by Malta in 1969. In 1971 the General Assembly asked the Secretary-General to prepare a comprehensive report on the elderly and to suggest guideline for the national and international action. In 1978, Assembly decided to hold a World Conference on the Ageing. Accordingly, the World Assembly on Ageing was held in Vienna from July 26 to August 6, 1982 wherein an International Plan of Action on Ageing was adopted. The overall goal of 8 India post.gov

6



the Plan was to strengthen the ability of individual countries to deal effectively with the ageing in their population, keeping in mind the special concerns and needs of the elderly. The Plan attempted to promote understanding of the social, economic and cultural implications of ageing and of related humanitarian and developed issues. The International Plan of Action on Ageing was adopted by the General Assembly in 1982 .The Chinese government respects and protects the legitimate rights and interests of elderly people. Citizens above the age of 18 are obliged to support their parents; and there must be no mistreatment of senior citizens, women or children. Law of the People's Republic of China on Public Security Administration Punishments, clarify the rights of senior citizens and stipulate the legal punishments for acts infringing on their rights.

Conclusion:

It may be conclude by suggesting that the problem of the elderly must be solved with great care. Adults are not offered the same protection from abuse under the law as children. Campaigners say the ageing population and growing numbers of elderly who need to be looked after mean that has to change. Special Amendments of provisions of Constitution has to be made especially for the protection of the elderly ones. Though the parents can claim maintenance under the Section 125 of the Criminal Procedure Code and Hindu Adoption and Maintenance Act., but the procedure is both time-consuming as well as expensive. Hence, there is need to have simple, inexpensive and speedy provisions to claim maintenance for parents. There is no uniformity among various state statues. Language is often vague, definitions unclear, stipulations confusing. This paper outlines the requirements of making the language easy to understand and implement the statute. Apart from these an international convention should contain comprehensive and legally binding provisions which would require ratifying states to promote older people’s rights. It should be reinforced by a strong monitoring system that would involve key members of the international community. This paper emphasizes that despite all these attempts, there is need to impress upon the

7



elderly about the need to adjust to the changing circumstances in life and try to live harmoniously with the younger generation as for as possible.

8



THE LEGISLATIVE VISION ON MANAGEMENT OF BIOMEDICAL WASTE- A CRITICAL ANALYSIS

Dr. Sarbeswar Sahoo*1

Abstract

Modern technological policy and growing use of chemicals in every sphere made tremendous growth in hazardous waste. It has posed a potential threat to public health. The Bio-Medical waste which appears as putrescible or potentially infectious. It includes and associated with the generation of biomedical waste that visually seems to be of medical or Laboratory origin like packaging, unused bandages, infusion kit etc. Along with research laboratory waste containing biomolecules or organisms that are restricted from environmental release. Discarded sharps are deemed as biomedical waste either they are contaminated or not, on account of possibility of being contaminated with blood and there propensity to cause injury when not properly contained and disposed of. Bio-Medical waste appears either in solid or liquid form. There is growing concern towards proper management of bio-medical waste in present scenario which is also a part of solid waste. The solid waste generated is due to various human activities and rapid growth of urbanization. It includes discarded blood, sharps, unwanted micro biological cultures and stocks, identifiable body part , other human or animal tissue , used bandages and dressings , discarded gloves, other medical supplies which may have been in contact with blood and body fluids and Laboratory waste. In to-to biomedical Waste is evaluated from biological and medical sources and activities i.e. diagnosis, prevention or treatment of diseases.

The common producers of biomedical waste linked with hospitals, health clinics, nursing homes, medical research Laboratory, offices of doctors, dentist & veterinarians, home health care and funereal homes along with chemicals and radioactive, universal or

* LL.M , Ph.D , Senior Lecturer, Balasore Law,College, Balasore & Guest Faculty, P.G.Department, of Law (LL.M.) Fakir Mohan University, Vyasa Vihar, Balasore-756001, Odisha

9



industrial waste materials. The disposal of solid waste poses many problems depending upon both the types of waste and disposal method employed. The majority of wastes which are combustible rubbish garbage and sewage slug are disposed of by incineration, using as hand fill or by ocean dumping incineration leads to air pollution, land fill operation on water dumping leads to water contamination. Disposal of biomedical waste appears as an environmental concern. It is classified as infectious or biohazardous and could potentially lead to spread of infectious disease. The management of biomedical waste lacks the procedures and techniques are highly required to be followed properly for the purpose to protect the environment, General public and workers especially healthcare and sanitation workers who are at risk of exposure to biomedical waste as an occupational hazard . There is the need of proper management of Bio-Medical waste i.e. Generation, accumulation, handling, storage, treatment, transport and disposal.

The hospital management in particular and the public in general are quite unaware about the bio-medical waste created posing a grave concern in a healthy and safety environment.

1. Concern of Biomedical Waste:-

The perils of bio-medical waste drew the attention in the last 1980s, when used syringes were found on several East-coast beaches of USA.A 1990 report of U.S. agency for Toxic and diseases registry concluded that the general public is not likely to be affected adversely by Bio-Medical waste. It may pose an injury and exposure risks through occupational contact with medical waste for Doctors, Nurses, janitorial, laundry and refuse workers. The general public may come into contact with medical waste which may lead to cause severe harms to the public. This led to the law regulating medical waste. In Indian the gravity of issue was realized only after 1990s. But the ice-effect of bio-medical waste created a serious concern with mushrooming of new hospital to meet health hazards. The main cause of increase in quantity of medical

10



waste is due to shift from reusable medical equipments to disposable goods2.

When such items are thrown into municipal bins, general waste, which is rich in organic materials, it creates a strong media for the micro-organism to multiply.

2. The Status of Biomedical Waste Management IN India :

The public and private hospital administration were neglecting the management of biomedical wastes without giving any importance. The Health Care Institutions initiate the matter for biomedical waste management after the introduction of Bio-Medical Waste Rules. The said rules brought seriousness among the health care institutions regarding bio-medical wastes handling and disposal.

3. LAWS RELATING TO BIOMEDICAL WASTE IN INDIA :-

3.1 - Ancient Laws: The protection of environment was mostly governed by the basic concept of “Dharma” where people worship various objects of nature. For causing any violence in the statuesque of nature, punishments were awarded as evident from Kautilya’s economic principle and manusmriti3.

3.2 - Modern Law (Indian Penal Code, 1860): The general provisions of I.P.C. relating to protection of environment can be applied for the management of biomedical waste. A polluter of environment is liable for punishment causing danger to public4 and punishments are awarded as per the code5. The penal provisions also safeguard against the acts which are injurious to any property etc6. This provision is also applicable to the person who generates, collects, receives, stores,

2 The quantity of medical and infectious waste is increasing mainly because of medical advances and the over dependence in the medical community on disposable items. 3 C.M. Jariwala. “Changing Dimensions of Indian Environmental Law, “ in P.Leela Krishana ( ED.) Law and Environment , 1-25 at 2 ( 1992) 4 Sec 268, I.P.C.-Public Nuisance 5 Sec. 290, I.P.C.-Punishment for public Nuisance 6 Sec. 291, I.P.C.-Continuance of nuisance after injunction to discontinue

11



transports, treats, disposes or handles bio-medical wastes contravening the above penal provisions.

3.3 - Constitutional Provisions : The constitution of India is unique in the world where specific provisions have been guaranteed in the Directive Principles of State Policy and Fundamental Duties.

3.3 - Constitutional Provisions : The constitution of India is unique in the world where specific provisions have been guaranteed in the Directive Principles of State Policy and Fundamental Duties.

In a socialistic pattern of society like ours the State must take care of the social problems for the improvement of public health as a primary duty7 (6). The constitution has enumerated certain fundamental duties for the protection and improvement of environment externally influencing the site and development of human beings and ecosystem. Parliament has imposed a new constitutional provision as obligation on the state8 (7).

3.4 - Environmental Protection Act, 1986 : Although various laws have been enacted dealing directly or indirectly covering specific types of pollution, it was necessary to have a central legislation in India for human beings, ecosystem and property. Accordingly the Environmental Protection Act was enacted in 1986.

3.5 - The National Environmental Tribunal Act, 1995 : The Act provides strict liability for damages arising out of any accident during handling of hazardous substance and for the establishment of a National Environment Tribunal for effective and expeditious disposal of cases. The decisions were taken at Rio Summit in 1992, where India was a participant regarding the liability and compensation to the victims of environmental damages.

3.6 - The Biomedical waste (Management and Handling) Rules, 1998 : The Rules were promulgated in 1998 and further amendments were made in exercise of the power conferred under Sec-

7 Article 47, Constitution of India. 8 Article 48- A of 51 A (g) of the Constitution of India

12



6, 8 and 25 of the Environment Protection act, 1986 for the regulation of Bio-Medical waste management and it is the first national law in the entire South –East Asian region in relation to bio-medical waste management. The rules are very wide and regulate all occupiers who generate bio-medical waste and insists on the alternative technical management. In India there are nos. of various disposal method, yet most are harmful rather than helpful. Every states pollution control board or pollution control committee will be responsible for implementation of the new legislation.

4. Biomedical Waste Management- International Scenario:

[Law in USA ] :

The United States was the first Country to have enacted Medical Waste Tracking Act in 1988 for the management of medical waste. Beforehand Environmental Protection Agency and Centre for Disease Control and Prevention issued normal guidelines for the said purpose. The legislation almost covers for the management of all types of medical waste. Besides the Central legislations some State laws are also effective in the Country.

[Law in UK ] :-

The clinical waste and the way to handle the said waste is regulated closely by applicable legislation like Environmental protection Act. 1990 ( Part II ) , waste Management Licensing Regulations 1994 , and the hazardous waste regulations ( England & Wales ) 2005 , along with the special waste regulations in Scotland.

1. Judicial Activism in India: The hospital waste management drew the attention of the Apex Court in 1994 through writ petition under constitutional provisions. The Supreme Court in B.L. Wadhera Vs. Union of India9 (8) issued certain guide lines for proper management of hospital waste both technically and non-technically. At the same time the Supreme Court directed the Central Pollution

9 A.I.R. 1996 SC 2969

13



Control Board and the State Pollution Control Boards to regulate and supervise the process of bio-medical waste management. But Supreme Court showed deep anguish in Almitra Patel Vs. Union of India10 as the bio-medical waste management was not proper as per the guidelines and norms. More over recently in 2008 the Madras High Court in K.Ashok Kumar and others vs state Tamilnadu and others11, the court observed the issues relating to Environmental protection , disposal of biomedical waste , certainly endangers the living condition which definitely attract Article 21 of the Constitution of India which confer fundamental right of living , which means to live with all dignity . And the State Government was instructed to comply the section 49 (2) of Town and country planning Act. , and to follow the other relevant rules to prevent health hazards and environmental distress.

Conclusion and Suggestive Measures:

Human being and living beings are product of their environment . A good environment helps wholesome development of ones personality and a bad environment inhabits its development. It affects human beings and living beings from the direct and indirect angels. Man has the fundamental right to freedom equality and adequate condition of human life in an environment of quality that permits a life of dignity and wellbeing and he bears an obligation to protect and improve the environment for present and future generation. State shall take all possible measures to prevent the hazards to human health and to cooperate and develop the existing law for protection of environment and it surroundings. It is apparent from the present scenario what mankind needs today is the development of strategic imitative . The biomedical waste should be properly managed to disposed of to protect environment , general public , workers and all concerned.

10 A.I.R. 2000 SC 1256 11 Indian kanoon.org/doc/1041112 (Last Accessed 11-04-2015)

14



Strategic Environment Initiative ( SEI) must insist on ways to improve waste management and recovery and recycling of waste. Lack of proper implementation of the bio-medical Rules leads to improper management of biomedical wastes. The present Rules need to be modified for an effective management. The Governmental Agencies must be vigilant to create a healthy and safety environment in the hospitals. The workers and other staff of the hospital should be trained technically. The legislation should be reformative and more stringent like the advanced Countries. Above all common public should be more conscious and dynamic through law takes its own course for an effective legal output.

References :-

1. Upadhyay J.J. - Environmental Law

2. Dr. Tripathy S.C. - Environmental Law

3. Prof. Subbarao G.C.V. - Indian Constitutional Law

4. Dr. Pande J.N. - Constitutional Law of India

5. Gaur K.D. - The Indian Penal Code

6. A.I.R. 1996 SC 2969

7. A.I.R. 2000 SC 1256

8. Indian kanoon.org/doc/1041112

15



EXTENSION OF RIGHT TO LIFE UNDER ARTICLE 21 TO ANIMALS: A NOTE ON THE BASIS OF VERDICT IN ANIMAL WELFARE BOARD OF INDIA V. A. NAGARAJA & ORS. CASE

Dr. Aneesh V. Pillai*

I. Introduction

The Mother Earth is considered as a common heritage of both man and animals. Thus humans have no right to eradicate the animals form this earth. India is one of few the countries where the welfare of animals is guaranteed and protected under its Constitution1. Moreover, the Government has enacted various legislations to protect animals such as Prevention of Cruelty to Animals Act, 1960 (PCA Act) and the Wildlife (Protection) Act, 1972. Unfortunately, in spite of all these provisions, cruelty towards animals is being continued and is often justified on various grounds of culture and traditions. The conduct of Jallikattu and Bullockcart Race are questioned before the Supreme Court in the case of Animal Welfare Board of India v. A. Nagaraja & Ors2., on the ground that it involves cruelty to Bulls and thus violates the PCA Act. The Supreme Court while declaring both these practices are violative of the provisions of PCA Act, given a wide interpretation to right to life under Article 21 of Indian Constitution so as to include ‘Life of Animals’ also. This paper briefly discusses the case, Animal Welfare Board of India v. A. Nagaraja & Ors3. It also analyses the question whether the right to life under article 21 can be conferred to Animals or not.

* Assistant Professor, School of Legal Studies, Cochin University of Science and Technology, Kerala. 1 Article 51A (g). It provides that, It shall be the duty of every citizen of India – ‘to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures’. 2 Decided by Supreme Court of India on 7th May, 2014. Available at http://indiankanoon.org/doc/39696860/, visited on 21. 10. 2014. 3 Ibid.

16



II. Background of the Case

This case was the result of various petitions filed before the Hon’ble Supreme Court of India. The various petitions filed before the Court challenged the legality of the conduct of Jallikattu; constitutionality of Tamil Nadu Regulation of Jallikattu (TNRJ) Act, 2009 and the validity of MoEF Notification dated 11.7.2011 as well as a corrigendum issued by the Government of Maharashtra prohibiting all Bullock-cart races, games, training, exhibition etc.

III. Disputed Arguments and Questions

Animal Welfare Board of India (ABWI), has submitted before the apex court that Jallikattu, Bull/ Bullock-cart races etc., conducted in the States of Tamil Nadu and Maharashtra respectively, inherently violates the provisions of the PCA Act, particularly, Section 34, Sections 11(1) (a) 5 & (m)6 and Section 227 of the PCA Act. ABWI, has also submitted reports, affidavits and photographs, to high-light the manner in which Jallikattu is being conducted, especially in the Southern Part of the State of Tamil Nadu, and how the bulls involved are physically

4 This Section provides that, ‘it shall be the duty of every person having the care or charge of any animal to take all reasonable measures to ensure the well-being of such animal and to prevent the infliction upon such animal of unnecessary pain or suffering’. 5 This Section provides that, ‘if any person (a) beats, kicks, over-rides, over-drives, over-loads, tortures or otherwise treats any animal so as to subject it to unnecessary pain or suffering or causes or, being the owner permits, any animals to be so treated’; he shall be punishable, in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both. 6 This Section provides that, ‘if any person (m) solely with a view to providing entertainment: (i) confines or causes to be confined any animal (including tying of an animal as a bait in a tiger or other sanctuary) so as to make it an object of prey for any other animal; or (ii) incites any animal to fight or bait any other animal; he shall be punishable, in the case of a first offence, with fine which shall not be less than ten rupees but which may extend to fifty rupees, and in the case of a second or subsequent offence committed within three years of the previous offence, with fine which shall not be less than twenty-five rupees but which may extend to one hundred rupees or with imprisonment for a term which may extend to three months, or with both. 7 This Section provides that, ‘No person shall exhibit or train (i) any performing animal unless he is registered in accordance with the provisions of this Chapter; (ii) as a performing animal, any animal which the Central Government may, by notification in the Official Gazette, specify as an animal which shall not be exhibited or trained as a performing animal.

17



and mentally tortured for human pleasure and enjoyment. The ABWI has specifically pointed out that Jallikattu or Bullockcart race conducted, as such, has any historical, cultural or religious significance, either in the State of Tamil Nadu or in the State of Maharashtra.

Further, ABWI has also taken up the stand that the bulls involved in Jallikattu, Bullock-cart race etc. are not “performing animals” within the meaning of Sections 21 and 22 of the PCA Act and that the Ministry of Environment and Forest (MoEF) was justified in issuing the notification dated 11.7.2011 banning the exhibition of Bulls or training them as performing animals on accepting the stand taken by it before this Court. ABWI also submits that the Bulls which are forced to participate in the race are subjected to considerable pain and suffering, which clearly violates Section 3 and Sections 11(1) (a) & (m) of the PCA Act read with Article 51 A (g) and Article 21 of the Constitution of India and hence exhibition or training them as performing animals be completely banned. Moreover, it has also argued that the TNRJ Act is repugnant to the provisions of the PCA Act and the rules made there under and State cannot give effect to it in the absence of the assent of the President under Article 254 of the Constitution of India.

The organizers of Jallikattu and Bullock-cart races, individually and collectively, argue that these events take place at the end of harvest season (January and February) and sometimes during temple festivals which is traditionally and closely associated with village life, especially in the Southern Districts of the State of Tamil Nadu. They also pointed out that, the same is going on for the last more than three hundred years by way of custom and tradition and that extreme care and protection are being taken not to cause any injury or pain to the bullocks which participate in the event.

Further, it was also stated that no cruelty is meted out to the performing bulls in Bullock-cart races so as to violate Section 11(1) (a) of the PCA. The State of Tamil Nadu has also taken up the stand that every effort shall be made to see that bulls are not subjected to any

18



cruelty so as to violate the provisions of the PCA Act and the sport event can be regulated as per the provisions of the TNRJ Act. Moreover, it was also pointed out that the bulls taking part in the Jallikattu, Bullock-cart Race etc. are specifically identified, trained, nourished for the purpose of the said sport event and owners of Bulls spend considerable money for training, maintenance and upkeep of the bulls. The State has also taken up the stand that the Bulls are “performing animals”, and since there is no sale of tickets in the events conducted, Section 22 will not apply, so also the notification dated 11.7.2011. From the arguments of both the sides the following important questions came up for the consideration of Supreme Court:

a. Whether the practice of Jallikattu is illegal?

b. Whether the Tamil Nadu Regulation of Jallikattu Act, 2009 is repugnant to Prevention of Cruelty to Animals Act, 1960?

c. Whether the the MoEF Notification dated 11.07.2011 and the corrigendum issued by the Government of Maharashtra dated 24.08.2011 prohibiting all Bullock-cart races, games, training, exhibition etc. is valid?

d. What are the rights of Animals under Indian Constitution, laws, culture, tradition, religion and ethology?

IV. The Judgment

The Supreme Court discussed the case in detail and analyzed the rival submissions and reports submitted by the parties. After a detailed analysis the Court observed that, ‘Bulls are prey animals. According to animal behavioural studies, bulls adopt a flight or fight response when they feel frightened or threatened. This instinctual response to a perceived threat is deliberately exploited by Jallikattu organizers. During jallikatt, many animals are observed to engage in a flight response as they run away from people when they experience pain or fear. This flight response is not surprising, given the amount of pain and terror bulls are subjected to before, during and after jallikattu. Bulls are beaten, poked, prodded, harassed and jumped on by

19



numerous people. They have their tails bitten and twisted and their eyes and noses filled withirritating chemicals. Many peer-reviewed papers demonstrate a link between the actions of humans and the fear, distress and pain experienced by animals.

With respect to the bullock-cart race, the Court observed that, ‘in various parts of Maharashtra, varied types of Bullock-cart races are being organized. Bailgada Sharyat is a race where no person rides the cart. In such a race, at times, Bullocks are brought to the venue blind folded through trucks and let free, through a ghat either side of which spectators, large in number, assemble. Due to sudden exposure to the light, after unfolding, and the huge noise source made by spectators, Bullock get terrified and run in straight on the slope. Many of the Bullocks are tortured and whipped to make them run and the price is decided on the basis of time taken to cover gap of approximately 300 meter distance. ….Various forms of torture are adopted in all these races….’. Hence the Court concluded that, the conducts of Jallikattu and Bullock-cart race are prima facie a violation of Section 3 of PCA Act. Further the Court observed that, ‘Section 11 confers no right on the organizers to conduct Jallikattu/Bullock-cart race’.

The Court further discussed the question whether Bulls can be considered as a performing animal or not. The Court points out that, ‘all animals are not anatomically designed to be performing animals. Bulls are basically Draught and Pack animals. They are live-stock used for farming and agriculture purposes, like ploughing, transportation etc. Bulls, it may be noted, have been recognized as Draught and Pack animals in the Prevention of Cruelty to Draught and Pack Animals Rules, 1965. Draught means an animal used for pulling heavy loads…... Bulls, therefore, cannot be a performing animal, anatomically not designed for that, but are forced to perform, inflicting pain and suffering, in total violation of Sections 3 and Section 11(1) of PCA Act. Chapter V of the PCA Act deals with the performing animals’.

One of the arguments leveled by respondents is that Jallikattu and Bullock-cart races, are conducted without sale of tickets and hence

20



Section 22 of the PCA Act would not apply, so also the notification dated 11.7.2011. The Court answered this question in the following words, ‘it may be noted that when Bull is specifically prohibited to be exhibited or trained for performance, the question whether such performance, exhibition or entertainment is conducted with sale of tickets or not, is irrelevant from the point of application of Sections 3 and 11(1) of the PCA Act. Jallikattu and Bullock-cart Race, therefore, violate not only Sections, 3, 11(1) (a) & (m) and Section 22, but also the notification dated 11.7.2011 issued by the Central Government under Section 22(ii) of the PCA Act’.

In order to decide the issue of repugnancy between the PCA Act and TNRJ Act, the Court analyzed the provisions of both the Acts in detail. The relevant portion of the Court discussion is reproduced here as, ‘Section 2(c) of TNRJ Act speaks of ‘taming of bulls’ which is inconsistent and contrary to the provisions of Chapter V of PCA Act. Sections 4(vii), (viii) and 5 (viii) speak of Bull tamers. Bull tamers, therefore, tame the bulls at the arena, thereby causing strain, stress, inflict pain and suffering, which PCA Act wants to prevent under Section 11 of the Act. Further, Section 5 of TNRJ Act envisages a fight between a Bull and Bull tamers, that is, Bull tamer has to fight with the bull and tame it. Such fight is prohibited under Section 11(1) (m)(ii) of PCA Act read with Section 3 of the Act. Hence, there is inconsistency between Section 5 of TNRJ Act and Section 11(1) (m) (ii) of PCA Act.

The Court further points out that, the PCA Act, cast not only duties on human beings, but also confer corresponding rights on animals, which is being taken away by the State Act (TNRJ Act) by conferring rights on the organizers and Bull tamers, to conduct Jallikattu, which is inconsistent and in direct collision with Section 3, Section 11(1)(a), 11(1)(m)(ii) and Section 22 of the PCA Act read with Articles 51A(g) & (h) of the Constitution and hence repugnant to the PCA Act, which is a welfare legislation and hence declared unconstitutional and void, being violative of Article 254(1) of the Constitution of India.

21



The Court further discussed the question about rights and welfare of animals. The Court observes that, ‘When we look at the rights of animals from the national and international perspective, what emerges is that every species has an inherent right to live and shall be protected by law, subject to the exception provided out of necessity. Animal has also honour and dignity which cannot be arbitrarily deprived of and its rights and privacy have to be respected and protected from unlawful attacks. The five freedoms such as (i) freedom from hunger, thirst and malnutrition; (ii) freedom from fear and distress; (iii) freedom from physical and thermal discomfort; (iv) freedom from pain, injury and disease; and (v) freedom to express normal patterns of behavior recognized under Chapter 7.1.2 of the guidelines of World Health Organization of Animal Health find a place in Sections 3 and 11 of PCA Act and they are for animals like the rights guaranteed to the citizens of this country under Part III of the Constitution of India’. The Court further points out that, the rights guaranteed to the animals under Sections 3, 11, etc. are only statutory rights. The same have to be elevated to the status of fundamental rights, as has been done by few countries around the world, so as to secure their honour and dignity. Rights and freedoms guaranteed to the animals under Sections 3 and 11 have to be read along with Article 51A(g)(h) of the Constitution, which is the magna carta of animal rights.

The significant holding in this case is the extension of scope of right to life to animals. The Court said in the following words, “Every species has a right to life and security, subject to the law of the land, which includes depriving its life, out of human necessity. Article 21 of the Constitution, while safeguarding the rights of humans, protects life and the word “life” has been given an expanded definition and any disturbance from the basic environment which includes all forms of life, including animal life, which are necessary for human life, fall within the meaning of Article 21 of the Constitution. So far as animals are concerned, in our view, “life” means something more than mere survival or existence or instrumental value for human-beings, but to

22



lead a life with some intrinsic worth, honour and dignity. Animals’ well-being and welfare have been statutorily recognised under Sections 3 and 11 of the Act and the rights framed under the Act. Right to live in a healthy and clean atmosphere and right to get protection from human beings against inflicting unnecessary pain or suffering is a right guaranteed to the animals under Sections 3 and 11 of the PCA Act read with Article 51 A (g) of the Constitution. Right to get food, shelter is also a guaranteed right under Sections 3 and 11 of the PCA Act and the Rules framed there under, especially when they are domesticated. Right to dignity and fair treatment is, therefore, not confined to human beings alone, but to animals as well. Right, not to be beaten, kicked, over-rider, over-loading is also a right recognized by Section 11 read with Section 3 of the PCA Act”.

V. Analysis of Judgment

The judgment of Apex Court in this case is significant in three ways, firstly, the practice of Jallikattu and Bullockcart race is declared as violative of the provisions of PCA Act. Secondly, the Court declared that Bulls are not a performing animal. Thirdly, the Court stated the animal life should be included within the meaning of Article 21 of the Indian Constitution. The first two points are not controversial as it is in accordance with the law of the land. However, the third point, i.e. the inclusion of animal life under article 21 may be a ground for serious criticisms. Some of the possible arguments are discussed hereunder.

The Article 21 of the Constitution provides that, "No person shall be deprived of his life or personal liberty except according to procedure established by law." The persons here include both natural and juridical persons. This is because, according to Indian Penal Code, ‘the word “person includes any company or association or body of persons, whether incorporated or not8. The General Clauses Act, 1897 also defines, the word person as any company or association or body of individuals, whether incorporated or not9. Thus a joint reading of these

8 See Section 11 of the Code. 9 See Section 3 (39) of the Act.

23



definitions shows that, the word person should be confined to natural persons and juridical persons. When the scope of Article 21 to animals, the question arises whether they can be treated as persons? If the answer is negative the extension of Article 21 to animals is a futile attempt.

The rights are generally being conferred to persons who are being capable of reason and choice. Animals, since they lack reason, are not persons, and therefore are categorized as things. Moreover, only a human has the power to deal with other members of his own species by voluntary means: rational persuasion and a code of morality rather than physical force. So also under traditional conceptions of law, animals were typically regarded as objects of rights vested in their human owners but not as the holders of rights against human beings10. The animals are not capable of exercising claims against others, or comprehending the rules of moral duty. Therefore, animals have no rights. Since human beings are the only beings capable of exercising claims against others, only human beings have rights 11 . Therefore, conferring a right to an entity which does not have a reason is impermissible.

The object of the fundamental right under Article 21 is to prevent encroachment upon personal liberty and deprivation of life except according to procedure established by law. It clearly means that this fundamental right has been provided against state only. If an act of private individual amounts to encroachment upon the personal liberty or deprivation of life of other person, such violation would not fall under the parameters set for the Article 21. In such a case the remedy for aggrieved person would be either under Article 226 of the

10 Richard A. Epstein, “Animals as Objects, or Subjects, of Rights”, Working Paper No. 171, (2002). Available at http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1052&context=law_and_economics, visited on 21. 10. 2014. 11 Carl Cohen, “The Case for the Use of Animals in Biomedical Research”, The New England Journal of Medicine 314 (1986) 865-869.

24



constitution or under general law12. Thus in case where State involves in any cruel practices against animals, the Article 21 may provide remedy. Generally private parties are at the forefront of cruel practices against animals. This means that, the extension of Article 21 is not worth for protection of animals.

Further, in various cases the Hon’ble Supreme Court and various High Courts have observed the Article 21 contains everything connected with human dignity. The dynamic interpretations given by Courts to Article 21 are to establish new facets of right to life which are essential for a decent life. The Courts repeatedly pointed out in various cases life means not a mere animal existence. If the life under article 21 includes animal life also, then this would undermine the various landmark judgments in which Courts has stated Article 21 protects all ingredients which makes a man’s life meaningful and worth living.

The life under Article 21, if covers animal right also, then it will have a severe impact in the society. No one can chain an animal, kill, eat, etc. of any animal. This would lead to imbalance in the society. It is an illusion to think both animal and human gets same status in the society. These trends of conferring fundamental rights to animals continues any one file a case representing any animal and seek remedy for violation of various rights already established under Article 21. So also another pertinent question arise here is animal includes various category of animals, out of these which category can be given the rights and which can be excluded. It is to be noted here that, if life includes animal life, the literal interpretation presupposes all animals are entitled to get similar rights.

Moreover, the fundamental rights are considered as natural rights which have its origin in natural law theories. It is generally agreed that natural rights are inherent in human beings and cannot be

12 Vidhan Maheshwari, “Article 21 of the Constitution of India - The Expanding Horizons”, available at http://www.legalserviceindia.com/articles/art222.htm, visited on 21. 10. 2014.

25



taken away by State13. Hence, it can be argued that, since natural rights are applicable only to human beings, the extension of such rights to animals cannot be justified. It is a hard reality that, though there are various laws for the protection of animals in India, the cruel practices against animals are in rise. The law of the land provides for protection and humane treatment of animals, as citizens of India it is our fundamental duty to enforce these laws to protect the helpless animals who suffers in name of Religion, Science, Health, Commerce etc 14 . Protection of animals is not possible by the government authorities alone. There should be a concern from the mind of all humans that, the animals, they are also the owners of this earth and it is the duty of humans to ensure minimum or no suffering to animals for human pleasure.

13 B. K. Sharma, Introduction to the Constitution of India, PHI, New Delhi, (2007) 59. 14 N.G. Jayasimha, “The Law and Animals: What to Do When You See Cruelty”, available at http://www.legal servicesindia.com/articles/animals.htm, visited on 21. 10. 2014.

26



A CONCEPTUAL STUDY OF PHILOSOPHY OF PLEA-BARGAINING :INDIAN PERSPECTIVE

*Dr. Rehana Shawl

Introduction

Delay resulting in denial of justice is a serious infirmity of the judicial system.One of the methods employed in Criminal Justice system for avoiding delay and enabling speedy settlement is plea- bargaining.

According to blacks law dictionary,plea-bargaining is a process ‘’where by the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to courts approval.It usually involves the defendants pleading guilty to a lesser offence or to only one or some of the courts of a multi court indictment in return for a lighter sentence than that possible for the graver charge,’’in its most conventional and general sense,plea-bargaining can be defined as pre-trial negotiations between the accused and the prosecution during which the accused agrees to plead guilty in exchange for certain concessions by the prosecution.

The object of plea- bargaining is to reduce the risk of undesirable orders for the either side.Another reason for introducing the concept1 of plea –bargaining is the fact that most of the criminal courts are2 overburdened and hence unable to dispose off the cases on merits.Criminal trials can take day,weeks,months and sometimes year while guilty pleas can be arranged in minutes.

In other words,a plea bargain is a deal offered by the prosecutor to induce the defendant to plead guilty. Plea- bargaining is of two types.

Charge plea-bargaining and sentence plea-bargaining

Charge plea-bargaining happens when the prosecution allows a defendant to plead guilty to a lesser charge or to only some of the

*Astt.Prof.School of Legal Studies,Central University of Kashmir

27



charges framed against him prosecution generally has vast discretion in framing charges therefore they have the option to charge the defendant with the highest chargesthat are applicable.Charge bargaining gives the accused an opportunity to negotiate with the procesecution and reduce the number of charges that might have framed against him.

Sentence bargain-when an accused or defendant is told in advancewhat his sentence will be if he pleads guilty. A sentence bargain may allow the prosecutor to obtain conviction in the most serious charge,while assuring the defendant of an acceptable sentence.Therefore we can safely say that plea-bargaining is nothing but a contract between the prosecution and the defendant or accused and both the parties are bound by this contract would be wrong.

For the most benefits the principle benefit of plea-bargaiing is receiving lighter sentence than what might result from taking the case to trial and losing another benefit which the defendants gets is that they can save a huge amount of money which they might otherwise spend on advocates.

Historical perspective

It would be wrong to assume the concept of plea-bargaining found favour of courts only in the recent past. Infact it is used in the American judiciary in the 19th century itself .The bill of rights makes no mention of the practice when establishing fair trial principle in the

6th amendment but the constitutionality of plea-bargaining had constantly been upheld there.In the year 1969 James Earl Ray pleaded in assassinating Martin Luthar King,jr to avoid execution sentence.He finally got imprisonment of 99 yrs.more than 90% cases in America are never tried.The majority of individuals who are accused of crime give up their constitutional rights and plead guilty.Every minute a criminal case is disposed off by wayof guilty .In a landmark judgement Borden Kircher V.Hayes, the US Supreme court held that the constitutional rationale of plea –bargaining is that no element of punishment or retaliation so long as the accused is free to accept or reject the prosecution offer.

28



The apex court however upheld the life imprisonment of the accused because he rejected of plea- guilty offer of 5 yrs imprisonment.The supreme court in a same case,however in a different context observed that,it is always for the interest of the party under duress to choose lesser of the two evils.

In countries such as England and wales,Victoria,Australia,plea bargaining though the Scandinavian countries largely maintain prohibition against the practice.

The American supreme court approach regarding constitutionality of plea bargaining has been positive and consistent.The court has insisted that the accused pleading guilty must be counseled about his constitutional and legal right, that the plea must be voluntary and with the full knowledge;it should be generally free from inducement,it shall be so recorded in the negotiation document.It was held in case of Moore V.Machigan (1957)355 US 155

Indian Position

The concept of plea –bargaining was introduced in Indian criminal justice system in the year 2005 by means of criminal law amendment Act 2005 .by this amendment,a new chapter has been introduced in the code of criminal procedure.

Prior to the introduction of plea bargaining in the criminal justice system,most courts ,scholars tended to ignore plea- bargaining and when the discussions of the practice occurred it usually was critical.Most legal experts described plea-bargaining as a lazy form of prosecution that resulted undue leniency for offenders.Earlier the criminal law of india did not recognize the concept of plea-bargaining as such.However reference may be made to Sec 206(1) and Sec 206(6) of Cr.P.C and Sec 208 (1) of the Motor Vehicles Act ,1988.these provisions enable the accused to plead guilty for petty offences and to pay small fine whereupon the case is closed.

The Govt. was hesitant for the introduction of plea-bargaining in the criminal justice systice system due to the opposition from the

29



legal experts,judiciary etc.The Supreme court has criticized the concept of plea bargaining in its judgement namely, Kaclrhia Patel Shantilal Koderlal V. State of Gujrat and Anr 1980 Cr. LJ 553 strongly disapproved the practice of plea-bargaining.The apex court held that practice is unconstitutional illegal and would tend to encourage corruption,collusion and pollute the pure fount of justice.

In Kasambhai V. State of Gujrat AIR 1980 SC 854 the Supreme court expressed an apprehension that such a provision is likely to be abused.

The law commission in india advocated the introduction of plea –bargaining in the 142nd ,154th and 177th reports.The 154th report of the Law Commission recommended the new XXIA to be incorporated in the Cr.PC. The report recommended that the said concept be made applicable to offences which are punishable with imprisonment of less than 7 yrs or fine including the offences covered by Sec. 320 of the code.It was observed that the said facility should not be available to habitual offenders and to those who are accused of socio-economic offences against women and children.The recommendations of the 154th law commission report was supported by the law commission in its 77th report and also supported by the Malimath Committee.

The Malimath Committee recommended that a system of plea-bargaining be introduced in the Indian criminal justice system to facilitate the earlier disposal of criminal cases and to reduce the burden of courts.

Accordingly,the draft criminal law (Amendment) bill 2003 was introduced in the parliament.The statement of objects and reasons,interalia mentions that,the disposal of criminal trials in the courts takes considerable time and that in many cases trial do not commence for as long 3 to 5 yrs after the accused was remitted to judicial custody.Though not recognized by the criminal jurisprudence,it is seen as an alternative method to deal with the huge arrears of criminal cases. The bill attracted enormous public debate critics.The supreme court has also time and again blasted the concept of plea-

30



bargaining saying that the negotiation in criminal cases is not permissible.

In state of Uttar Pradesh v. Chandirika 2000 Cr.LJ 384 (386)The apex court held that it is settled law that on the basis of the plea- bargaining court cannot dispose of the criminal cases.The court has to decide it on merits.If the accused confesses its guilt appropriate sentence is required to be implemented.

Despite this huge hue and cry, the Govt. found it acceptable and finally Section 26-a to 265-l have added to the code of criminal procedure,so as to provide for raising the plea-bargainig in certain types of criminal cases while commenting on this aspect.The division bench of Gujrat High court observed in State of Gujrat V.Natwar Harchanji Thakor 2005 Cr.Lj 2957 that, the very object of law is to provide easy,cheap and expeditious justice by resolution of disputes,including the trial of criminal cases and considering the present realistic profile of the pendency and delay in disposal in the administration of law and justice fundamental reforms are inevitable.There should not be any static.It can be said tha it is really a measure and redressal and it shall add a new dimention in the realm of judicial reforms

No doubt plea-bargaining is nothing but a cover up the inadquancies of the Govt. in dealing with each and every case that comes before it.It directly shows the incompetence of the tradional procedureal laws.

Criticism

Some of the draw backs of the concept of plea-bargaining as is recognized in india are

a. Involving the police in plea-bargaining process would invite coercion

b. By involving the court in plea-bargaining process,the courts impartiality is impugned

c. Involving the victim in plea-bargaining process,would invite corruption.

31



d. If the plead guilty application of the accused is rejected then the accused would face great hardship to prove himself innocent.Therefore to ensure fair justice plea-bargaining must encompass the following minimum requirements:

i)The hearing must take place in courts.

ii)The court must satisfy itself that the accused is pleading guilty knowingly and voluntarily.

iii)Any court order rejecting a plea bargaining application must be kept confidential to prevent prejudice to the accused.

Conclusion

It is concluded that any plea bargaining system in which both sides have equal access to the same resources and which the plea is voluntarily and intelligently made is constitutionally valid and does not violate the basic tenants of criminal law Amendment Act 2005, appears to have taken note of the traditional fears and objections associated with the process of plea-bargaining. The plea-bargaining concept no doubt undermines the public confidence in the criminal justice system and as a result of this it will lead to conviction of innocent, inconsistent penalties form similar crimes and lighter penalties for the rich. Plea-bargaining is undoubtedly adisputed concept,few people have welcomed it while others have abandoned it. It is true that plea-baraining speeds up case load disposition,but it does that in an unconstitutional manner but we have no other choice but to adopt this technique.The criminal courts are too over burdened to allow each and every case to go on trial,only time will tell if the if the introduction of this new concept is justified or not.

References:-

1. S.N.Mishra, ‘The Code of Criminal Procedure 1973’, Central Law Publications(Allahabad),18th ed.2012

2. Ishwar Bhatt, ‘Law and Social Transformation’,Eastern Book Company,2013

32



3. S.C.Sarkar, ‘The Code of Criminal Procedure’(Vol II),lexis nexis Butterworth Wadhva (Nagpur),10th ed,2012

4. Krishna Iyer,’Speaking for Bench’,Oxford University Press (India)2013.

33



SOCIAL AND JUDICIAL RESPONSE TO BOLLYWOOD'S FREEDOM OF EXPRESSION

Sarvesh Kumar Shahi*

Ms. Lipika Sharma**1

“Those who deny freedom to others deserve it not for themselves”.

- Abraham Lincoln

Introduction

Freedom of speech and expression is the notion that allows a person to express oneself freely whether through words of mouth, literature, art, or in any other standard of communication. Though the Constitution of India does not expressly mention motion pictures as a medium of speech and expression, they have been so accepted through a range of court decisions and admittedly the most important way to communicate with masses and affect their opinion.

Films in India have been censored on the grounds of obscenity, sex and violence; but this paper does not intend to endeavor into those areas, rather it explores elsewhere where films have been banned or targeted in the name of maintaining public order; respecting beliefs, sentiments and traditions; or for criticizing the State on certain issues. The paper does not attempt to go into the intricacies of the problems; instead, it limits itself to testify the legality of censorship in the light of the freedom of speech and expression. In this quest, it presents some controversies of the recent times, highlights certain judgments and relevant legal provisions. Although the paper concludes such censorship as illegal and arbitrary, it also attempts to find a way out for ensuring

*Assistant Professor, Amity Law School, Lucknow Campus, AUUP & ** Assistant Professor ,Amity Law School, Centre II, Noida, AUUP

34



better protection of free speech as far as motion pictures in India are concerned.

Right to Freedom of Speech and Broadcast under Constitution

The right to freedom in Article 19 guarantees the Freedom of speech and expression, as one of the six freedoms mentioned under Indian constitution.2

The Indian judiciary’s approach to issues involving freedom of expression has been inconsistent over the past few years. Seen in the backdrop of the Supreme Court’s early jurisprudence in favor of the freedom of expression and the press, judgments and orders in some of the recent cases from the Supreme Court and the High Courts have given rise to concern that the judiciary’s dedication to free speech is not as robust as it was earlier.

The Right to Freedom of Speech and Expression as per the Indian Constitution – means the right to express one’s own convictions and opinions freely. The word “freely” means the freedom of a citizen to express his views and opinion in any conceivable means including by words of mouth, writing, printing, banners, signs, and even by means of silence3.

The real meaning of free speech is the ability to think and speak freely and to obtain information from others through publications and public discourse without fear of retribution, restriction, or repression by the government. It is through free speech, people could come together to achieve political influence, to toughen their morality, and to help others to become moral and enlightened citizens.

The freedom of speech is regarded as the first order of liberty. It occupies a preferred and important position in the hierarchy of the liberty, it is truly said about the freedom of speech that it is the mother of all other liberties. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth,

2 Constitution of India-Part III, Article 19, Fundamental Rights. 3 Available at http://www.gutenberg.org/files/38982/38982.txt

35



writing, printing, pictures or any other mode. In modern time it is extensively accepted that the right to freedom of speech is the essence of free society and it must be shielded at all time. The first principle of a free society is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state. It is one of the most important fundamental liberties guaranteed against state suppression or regulation4.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Right, European convention on Human Rights and fundamental freedoms, International Covenant on Civil and olitical Rights etc. These declarations expressly talk about protection of freedom of speech and expression5.

Article 19(1) (a) says that all citizens shall have the right to freedom of speech and expression. This right is available only to a citizen of India and not to foreign nationals. This right is, however, not absolute and it allows Government to frame laws to impose reasonable restrictions in the interest of sovereignty and integrity of India, security of the state, friendly relations with foreign states, public order, decency and morality and contempt of court, defamation and incitement to an offence.6

Similarly, freedom of broadcasting and publishing of Bollywood is another right enshrined under Indian constitution. In another landmark judgment of Secretary, Ministry of Information and Broadcasting v. cricket Association of Bengal7, in that case the Supreme

4 Overgaauw, D. (2009). The Paradoxes of Liberty: the Freedom of Speech (Re-) Considered. Amsterdam Law Forum, 2(1), 25-32. Retrieved from http://amsterdamlawforum.org/article/view/104/186. 5 Patanjali, Dheerendra (2007). Freedom of Speech and Expression India v America - A study. Indian Law Journal, 7(2). 6 Mr. B.P. Srivastava, I.R.S. Member, Customs and Central Excise Settlement Commission, Orissa review, November, 2006. 7 AIR 1995 SCC (2) 161

36



Court held that the Right to Freedom of Speech and Expression includes the right to telecast and broadcast the matches and this right belongs to the organization, which cannot be interfered by any one. The organization is free to choose any agencies or broadcasting media which it thinks appropriate to telecast the matches8.

Broadcasting media must be under control of public. In land mark judgment delivered in the year 1995 it was held that, the primary purpose of all broadcasting media is only for the public interest. Airways frequencies are the public property. Their use must be controlled and regulated by public authority in public interest to prevent the invasion of this right.

It is necessary to maintain and preserve freedom of speech and expression in a democracy, so also it is necessary to place some restrictions on this freedom for the maintenance of social order, because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2) of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the exercise of the right to freedom of speech and expression “in the interest of” the public on the following grounds:

1) Security of State: Security of state is of vital importance and a government must have power to impose restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can be imposed on freedom of speech and expression in the interest of security of State.

2) Friendly relations with foreign states: The object behind the provision is to prohibit unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the maintenance of good relations between India, and that state.

3) Public Order: Next restriction prescribed by constitution is to maintain public order. This ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of wide

8 Available at: http://www.legalservicesindia.com/article/article/critically-analysis-of-broadcasting-right-&-control-872-1.html

37



connotation and signifies "that state of tranquility which prevails among the members of political society as a result of internal regulations enforced by the Government which they have established."

Here it is pertinent to look into meaning of the word “Public order. Public order is something more than ordinary maintenance of law and order. 'Public order' is synonymous with public peace, safety and tranquility. Anything that disturbs public tranquility or public peace disturbs public order. Thus communal disturbances and strikes promoted with the sole object of accusing unrest among workmen are offences against public order. Public order thus implies absence of violence and an orderly state of affairs in which citizens can peacefully pursue their normal avocation of life. Public order also includes public safety. Thus creating internal disorder or rebellion would affect public order and public safety. But mere criticism of government does not necessarily disturb public order9.

4) Decency or Morality: The way to express something or to say something should be decent one. It should not affect the morality of the society adversely. Our constitution has taken care of this view and inserted decency and morality as a ground. The words 'morality or decency' are words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances10 of restrictions on the freedom of speech and expression in the interest of decency or morality. These sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No fix standard is laid down till now as to what is moral and indecent. The standard of morality varies from time to time and from place to place. 11

7) Incitement to an offence: This ground was also added by the constitution (First Amendment) Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to commit

9 Available at www.goforthelaw.com/articles/fromlawstu/article16.htm 10 Available at www.lawctopus.com/academike/freedom-of-speech-and-expression/ 11 Available at https://books.google.co.in/books?isbn=1329084136

38



offence. The word 'offence' is defined as any act or omission made punishable by law for the time being in force.

8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is prime duty of government. Taking into it into account, freedom of speech and expression can be restricted so as not to permit any one to challenge sovereignty or to permit any one to preach something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all concerned with the national interest or in the interest of the society. The first set of grounds i.e. the sovereignty and integrity of India, the security of the State, friendly relations with foreign States and public order are all grounds referable to national interest, whereas, the second set of grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are all concerned with the interest of the society.

Expression through speech is one of the basic guarantees provided by civil society. However in modern world Right to freedom of speech and expression is not limited to express ones’ view through words but it also includes circulating one's views in writing or through audiovisual instrumentalities, through advertisements and through any other communication channel. It also comprises of right to information, freedom of press etc. It is a right to express and self realization. Two big democracies of world i.e. America and India have remarkably protected this right. As far as India is concerned, this important right is mentioned in Article 19(1) (a) 12 , which falls in fundamental right category. Indian courts have always placed a broad interpretation on the value and content of Article 19(1) (a), making it subjective only to the restrictions permissible under Article 19(2).

12 Available at indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html (Last Accessed 8-09-2015)

39



Censor Board and Banning of Films

Freedom of speech and expression is the concept of being able to speak freely. It is often regarded as an integral concept in modern liberal democracies. Films have also been accepted as a form of speech and expression. Hence, the banning of the films brings us to the cardinal question do we have the freedom of speech and expression? Films have been banned because of issues related to obscenity, sex and violence but this article does not intend to get into those factors rather it explores into the other factors. Many films are banned or targeted in the name of maintaining public order; respecting beliefs, sentiments and traditions; or for criticizing the state on a certain issues and these are the areas the article primarily focuses in. Again, the article also does not go into intricacies of the subjective matter of the problems; instead, it limits itself to testify the legal validity of the bans in the light of the freedom of speech and expression. In this quest, it presents some controversies in the recent times, highlights certain judgments and relevant legal provisions and finally verifies the legality of such bans.13

The Censor Board is supposed to be a large expert body carefully constituted to cater to the needs of different segments of the society14. Moreover, the procedure for grant of certificate of exhibition to a film is quite elaborate. So its decisions must be given full weight. But the role and position of the Board is confusing. The members are appointed and virtually controlled by the Government. However, the irony is that the game is not confined to only scrapping of movies by the Board. Even a positive nod by the Board is not the final but depends on the Central Government. Already instances have been forwarded where either State Government or State-owned Doordarshan has scrapped movies even after being cleared by the Board and Central Government. In such circumstances, where does the importance of the Censor Board’s

13Available at: http://www.legalserviceindia.com/articles/fban.htm (accessed on 12/02/2015). 14 Available at : https://www.law.du.edu/documents/sports-and...law-journal/.../right.pdf

40



decisions lie? The statute provides for the construction of advisory panels which can only make recommendations to the Board.

Another aspect of this phenomenon is that irrespective of the effect of the movies, there is always a call for a total ban without even exploring any other possibilities. In the recent judgment of the Supreme Court in State of Gujarat v Mirzapur Moti Kureshi Kassab Jamat15, stated that a total prohibition under Article 19(2) to (6) must also satisfy the test that a lesser alternative would be inadequate.

The banning of films also has some other implications. While a film is banned, it does not only affect the freedom of speech and expression of the director or producer, it affects the economical aspects of many people which are also guaranteed under Article 19(1) (g) of the Constitution. Film making, distribution and screening are essential aspects of films business, if the film is banned, it affect all those aspects which defiantly falls under Article 19(1) (g)? But who will be responsible for it? Again, in many cases violent groups ransack theatres in protest against the screening of certain films. It definitely affects the property of the theatre hall owners16 . But the right to property is inviolable under Article 300(A) of the Constitution without the authority of law. Hence, to allow one’s properties to be destroyed by some group of people is a clear deprivation of the right to property guaranteed by the Constitution. So finally in such cases, the State fails in its duty to secure its citizens’ of various constitutional and legal rights.

Thus, the above discussion makes it obvious that the bans on the movies under different circumstances have not been imposed on valid constitutional grounds but to serve the interests of different groups whether social, religious or political. Under no circumstances, the bans of aforementioned nature can be justified.

15 AIR 2005(8) SCC 534.

41



Specific Bodies, Laws and Regulations on Right to Broadcast and Publish

For the purposes of this paper first and for most it is necessary to understand that When does the freedom of the artist start infringing upon the freedom of a person to practice his religion. Everyone has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers. 17It can be transmitted orally through print, in the form of art, through the broadcast media or through any other media of his or her choice including Cinema. It is important to note that right to freedom of expression includes both the rights of broadcasters and Public as well 18 .The rights of broadcasters to be free from State, political or commercial interference and the right of the public to maximum diversity of information and ideas in broadcasting.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also by various international conventions like Universal Declaration of Human Rights , European convention on Human Rights and fundamental freedoms, International Covenant on Civil and Political Rights etc. These declarations expressly talk about protection of freedom of speech and expression. The broadcasting develops as one of the Fundamental Rights provided in Part III vide Article 19 of the Indian Constitution. It provides the right to speech and expression which directly reflect the right to publication and circulation of ones own views in the public with certain restrictions which are provided in the Article 19(2). Freedom of Speech and Expression broadly means opinions and owns feeling expressed by words, mouth, writings, printings, pictures or any other mode19 . It includes the expression of one’s ideas through any communicable media

17Available at - http://en.wikipedia.org/wiki/Freedom_of_speech (Last Accessed 09-10-2015) 18Available at http://www.article19.org/data/files/pdfs/standards/accessairwaves.pdf(Last Accessed 12-02-2015) 19 Available at http://www.indialawjournal.com/volume3/issue_4/article_by_dheerajendra.html(Last Accessed 18-07-2015)

42



or visible representation, which also called broadcasting. The freedom of propagation of idea is secured by freedom circulation.20

It means every citizen has right to broadcast his article, book, painting and own views through various broadcasting media like T.V. channels, FM radio, news papers, magazine, mobile networks etc. His right is also regulated by Supreme Court through its various decisions also has extend the scope of freedom of speech and expression. One of the important decisions related to publication is LIC of India v. Manubhai D. Shah21. In this case it was held that the LIC magazine is regulated by public fund and therefore its refusal to publish the respondent’s rejoinder was unfair and unreasonable and arbitrary and was violative of Article 19(1) (a) of the Indian Constitution.

In State of Uttar Pradesh v Raj Narain22, the Supreme Court of India held that Article 19(1) (a), in addition, to guaranteeing freedom of speech and expression, guarantees the right to receive information on matters concerning public interest. 23

In a society with free speech, disagreements or bound to arise and If we start silencing every voice which offends, we will end up as a dumb nation. We need to adjust compromise and sacrifice a little because we are doing it for a greater good i.e securing right to free speech. Free speech is extremely vital in a dynamic democracy like ours. An important observation here is that even though sometimes common people get offended, it is very often now a days for the common man to rally on streets and carry out attacks on multiplexes etc, If they arrest those fringe elements who use violent means, sentence them and if our media for once stop sensationalizing and ignore them these protests will subside for sure.24

20 Available at http://www.legalservicesindia.com/article/article/critically-analysis-of-broadcasting-right-&-control-872-1.html(Last Accessed 09-10-2015) 21 (1992) 3 SCC 637 22 1975 AIR 865 23 1975 AIR 865, 1975 SCR (3) 333 24 Available at http://www.quora.com/How-should-movies-be-censored-in-India-so-as-not-to-offend-religious-sentiments(Last Accessed 18-03-2015)

43



The research examines the existing media norms (governed by Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority), the constitutional protection guaranteed to an individual’s right to privacy upheld by the courts, and the reasons the State employs to justify the invasion of privacy.25

The Ministry of Information and Broadcasting is a branch of the Government of India is the apex body for formulation and administration of the rules and regulations and laws relating to information, broadcasting, the press and films in India26.At present, the media is governed by disparate norms outlined by self-governing media bodies, like the Press Council of India, the Cable Television Networks (Regulation) Act, 1995 and the Code of Ethics drafted by the News Broadcasting Standard Authority (NBSA).27

The Censor Board of India is the Apex body under Ministry of Information and Broadcasting, who is for the regulation of motion pictures shown in India. The mandate of the Ministry of Information & Broadcasting are: News Services through All India Radio (AIR) and Doordarshan(DD) for the people Development of broadcasting and television , Import and export of films , Development and promotion of film industry, Organization of film festivals and cultural exchanges for the purpose, Handling of press relations to present the policies of Government of India and to get feed-back on the Government policies, Administration of the Press and Registration of Books Act, 1867 in respect of newspapers , Dissemination of information about India within and outside the country through publications on matters of national importance , Research, Reference and Training to assist the media units of the Ministry to meet their responsibilities , Use of

25 Available at http://cis-india.org/internet-governance/blog/privacy/privacy-media-law(Last Accessed 09-10-2015) 26 Available at http://en.wikipedia.org/wiki/Ministry_of_Information_and_Broadcasting_(India)#cite_ref-autogenerated1_1-0(Last Accessed 29-01-2015) 27 Available at http://cis-india.org/internet-governance/blog/privacy/privacy-media-law(Last Accessed 16-04-2015)

44



interpersonal communication and traditional folk art forms for information/ publicity campaigns on public interest issues , International co-operation in the field of information & mass media.

The decision of the Censor Board of India to censor some films due to political reasons like foreign ones while allowing several others which may often contain several suggestive and deeply disturbing scenes has been questionable.

There is only one guideline which needs to be followed: As long as movie engages in constructive criticism of any custom, religion, policy etc. and doesn't stigmatize or propagate hate against particular community/hate, it must not be banned. This is because my rights must not prevent others from exercising their rights in a peaceful manner. So, hate propaganda makes person/community insecure and social stigma prevents meaningful and healthy interaction of person/community with society and thereby imposing serious limitations on exercising their rights.28

Controversies of Haider, Vishwaroopam and PK

Herein it is relevant to note that movies like Vishwaroopam, Haider and PK faced criticism and much has been written and debated about these movies. Furthermore, all movies faced litigation seeking ban. Kamal Hasan’s Vishroopam faced severe criticism from Muslim organizations who had gathered under one umbrella.

The Supreme Court passed its verdict much before the PK film released29. Where on one hand the film has received a raving response from the audience owing to its unique concept and implementation, on the other, it has been a victim of legal trouble. It all began with Aamir Khan’s nude pose on the first poster of PK where he held only a transistor in one hand, to cover his private parts. The actor’s stint was termed as obscene and vulgar, and the posters were demanded to be

28 Available at http://www.quora.com/How-should-movies-be-censored-in-India-so-as-not-to-offend-religious-sentiments(Last Accessed 27-05-2015) 29 Available at http://www.bollywoodlife.com/news-gossip/supreme-court-rejects-ban-on-aamir-khans-pk-says-dont-watch-the-film-if-you-dont-like-it/(Last Accessed 24-03-2015)

45



removed from the stands. Next came in an NGO called All India Human Rights and Social Justice Front, which stated that the film contains certain sequences which are bound to hurt religious and spiritual sentiments of the people, and hence should be banned. This incident was followed by an FIR being lodged against the film’s producers Rajkumar Hirani and Sidharth Roy Kapur, by , Secretary of Hindu Legal Cell called Prashant Patel. Reports suggest that he filed an FIR as he believed that the makers of PK have portrayed the Hindu Gods, especially Lord Shiva, in a negative way.

Soon after the right-wing outfit Hindu Mahasabha threatened to hold demonstrations demanding a ban on Aamir Khan-starrer PK film for hurting religious sentiments of the majority community, Matterden cinema hall in Mumbai (earlier known as Deepak Talkies) cancelled the screening of the movie.30 The film, which earned Rs 214 crore in the first nine days after its release on December 19, has sparked protests by Vishwa Hindu Parishad, Bajrang Dal, Hindu Janajagruti Samiti and All India India Mahasabha while police complaints have been filed in several parts of country alleging that it mocked Hindu gods and its contents were "highly provocative". The outfit also lashed out at the Censor Board for clearing the scenes.

But what’s interesting is that the Supreme Court earlier had come to the film’s aid, clearly stating that there was no need to ban the film at all. SC had rejected the plea to ban the film, and instead asked viewers to “not watch the film,” if they had qualms with its sentiment and presentation!31

Herein it is important to note that it was stated by Hon’ble Cheif Justice Of India RM Lodha “If you don’t like it, don’t watch the film. Don’t bring religious facets here,” said. He further added saying,” These are matters of entertainment. If you restrict it, it will affect

30 Available at http://www.dnaindia.com/india/report-hindu-mahasabha-demands-ban-on-aamir-khan-s-pk-mumbai-cinema-hall-cancels-screening-2047809(Last Accessed 22-03-2015) 31 Available at http://lawmantra.co.in/apex-court-rejects-ban-on-aamir-khans-pk-says-dont-watch-the-film-if-you-dont-like-it/(Last Accessed 22-04-2015)

46



others’ rights. Everything is on the internet. What will you hide?”32 Similar protests and vandalism prevailed in New Delhi after the release of the film.

With regard to Vishwaroopam the filmmaker was forced to run a disclaimer in the film's title card and to shed a couple of 'objectionable' scenes were options to mollify the frayed sentiments of the protesters33. Thereafter, Kamal Hassan and the Muslim organization representatives issued a joint statement, pledging mutual faith and cooperation with each other. Consequently the district collectors rescinded the prohibitory orders issued under Section 144 CrPC 34 asking theatre owners not to exhibit the film.35 Upset over the hurdles caused by the ban on the release of mega budget Vishwaroopam, an filmmaker Kamal Haasan voiced his opinion with regard to controversy that if Tamil Nadu does not want him to stay in the state and he might seek a "secular" place in the country or overseas.36 This is the clear case of clash between violation of right to expression of filmmaker and people in general. Right of Filmmaker to express his or her views through any medium of broadcasting and right of people to express their objections. But we need to draw a line between right to expression and right to objection.

With regard to Haider another film which was caught in controversy because of its subject and its treatment. For those who loved it, its searing portrayal of human drama is worth a million words of praise. For those opposed to it, this film should not be patronized as it shows the Indian Army in bad light. Between these polarities, lies a work of fiction which mirrors reality from the prism of an underdog. The Allahabad high court 37 issued notice to makers of the film Haider and 32 Available at http://legalbloc.com/pil-seeks-ban-pk/(Last Accessed 22-04-2015) 33 Available at http://ibnlive.in.com/videos/370045/vishwaroopam-ban-right-to-freedom-of-expression-curbed.html(Last Accessed 09-10-2015) 34 Code of Criminal Procedure, 1973. 35 Available at http://timesofindia.indiatimes.com/city/chennai/Vishwaroopam-row-When-negotiation-is-better-than-litigation/articleshow/18283311.cms 36 Available at http://www.hindustantimes.com/india-news/vishwaroopam-ban-emotional-kamal-haasan-threatens-to-move-out-to-a-secular-land/article1-1003738.aspx(Last Accessed 18-04-2015) 37 Available at http://www.hindujagruti.org/news/26213.html(Last Accessed 26-05-2015)

47



Censor Board on a PIL seeking direction to restrain exhibiting of the movie in any cinema hall or through any other means on the grounds that it was against national interest. The order was passed by the Lucknow bench of the court comprising justices V K Shukla and B K Srivastava on the PIL filed by Hindu Front for Justice, a group of local lawyers.

The court issued notice to Central Board of Film Certification (CBFC), Vishal Bhardwaj Pictures Pvt Ltd, director and producer Vishal Bhardwaj, co-producer Siddharth Roy Kapur and co-writer Basharat Peer, the co-producer, the co-writer, actors Shahid Kapoor, Shraddha Kapoor and district magistrate Lucknow have been made the opposite party in the PIL38.

The petitioners alleged that Haider harmed the sovereignty, integrity and unity of India and no film could be displayed which harms national interest. They alleged that religious feelings of Hindus have been hurt as Shahid Kapoor and his associates were seen dancing with footwear at the Martand Sun Temple in the song Bismil. It was also alleged that the film has been picturized in a manner as if the Indian Army has committed atrocities on Kashmiris. The petitioners have requested the court to issue directions quashing the order granting certificate for exhibiting the film. They also urged the court to issue directions commanding the central and the state government to initiate appropriate criminal proceeding against the director, producers, script writers and actors, who they alleged were liable for committing the acts of sedition.39The petition also alleged that the film has been picturised in a manner as if the Indian Army has committed atrocities on Kashmiris. The petitioners have requested the court to issue directions quashing the order granting certificate for exhibiting the film.

Conclusion

38 Available at http://indiatoday.intoday.in/story/haider-in-legal-trouble-hc-issues-notice-to-makers-censor-board/1/396011.html(Last Accessed 09-10-2015) 39 Available at indianexpress.com/.../allahabad-hc-issues-notice-to-makers-of-haider-cen... (Last Accessed 22-04-2015)

48



In today’s world with vast improvement in information technology, off-putting movies in the name of maintaining public peace, respecting emotions of people and similar reasons are simply ridiculous. There are numerous alternative sources through which the news and views depicted in the movies are articulated to the general public. So, restraining movies does not serve any purpose. On the other hand, it may essentially give incorrect message to the public through indirect interpretation. It is always the best that the viewers themselves watch it and form his/her own opinion. General public may be devoid of appropriate education but not always of common sense. It is the selfish, tampered groups who twist the subject matter and mislead other people to serve their own purposes. Conversely, no group takes the role of a proper guide.

Finally, we live in a democratic country and every person has a right to communicate his views on different matters. Millions of views are disseminated throughout the nation every day by different means. Many of them are not approved by majority of the Indians. But does that imply that those should be scrapped? Or the authors have to bang the doors of the courts if their pieces do not satisfy one billion population? Similarly, movie is the legitimate and the most important medium in which issues of general anxiety can be treated. Moreover, they are not openly screened for everyone. It is available to only those people who are willing to buy tickets, go to the theatres and watch them. Reluctant people can easily choose to stay away from the movies. The director or producer has a right to project his own messages which the others may not approve of. But that does not deter his right to ‘think out’ and give contour through his creations. ‘Free debate’ and ‘open discussion’ has been considered as an integral part of a democracy in both Maneka Gandhi v. Union of India40 and Rangarajan case41. Otherwise, democracy has no value and it is equivalent to a totalitarian regime. However, all the above incidents indicate nothing

40 1978 SCR (2) 621 41 1989 SCC (2) 574

49



but assert that fact loudly, still we feel pompous of being a part of world’s one of the biggest democracy.

“Violent means will give violent freedom. That would be a menace to the world and to India herself”.

- Mahatma Gandhi

50



TRANSITIONAL JUSTICE: APPROACHES TO RECONCILIATION IN POST CONFLICT SOCIETIES

Arup Banerjee

1. Introduction

The issue of transitional justice in post-conflict societies has taken on increasing importance in the last few years. Transitional justice mechanisms are created to deal with crimes that were committed during a conflict period, at a stage where that society is at the cusp of transition from a society of conflict to one of democracy and peace. Reconciliation is one of the most contested concepts in the scholarly debate on transitional justice, and arguably also the most difficult to measure empirically. This article provides an overview and assessment of current knowledge on the relationships between transitional justice mechanisms aimed at promoting “truth” and “justice”. It spells out the claims about how to foster reconciliation and about how different mechanisms such as truth commissions, trials, amnesties, and local justice initiatives can be expected to contribute toward this end goal. It concludes by discussing the implications of the analysis for transitional justice policy as well as debates on the general significance of expanding transitional justice advocacy.

The term ‘Transitional Justice’ is often used to describe the political choices made by States that are undergoing a governance transition, which they adopt in order to deal with human rights violations and/or past abuses and atrocities committed by former governments and non-state actors. In addition to being a response to widespread or systemic violations of the past, it also seeks recognition for victims and to promote possibilities for peace, reconciliation and democracy and the rule of law usually in a post-conflict environment.1 Transitional justice is a response to systematic or widespread violations

Ph.D candidate, National University Of Study And Research In Law, Ranchi 1 Naomi Roht-Arriaza, The New Landscape of Transitional Justice, in Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice, 123 (2006).

51



of human rights. It seeks recognition for victims and promotion of possibilities for peace, reconciliation and democracy. Transitional justice is not a special form of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse. In some cases, these transformations happen suddenly; in others, they may take place over many decades.

This approach emerged in the late 1980s and early 1990s, mainly in response to political changes in Latin America and Eastern Europe—and to demands in these regions for justice. At the time, human rights activists and others wanted to address systematic abuses by former regimes but without endangering the political transformations that were underway. Since these changes were popularly called “transitions to democracy,” people began calling this new multidisciplinary field “transitional justice.” Governments there adopted many of what became the basic approaches to transitional justice. They include the following initiatives:

(i) Criminal prosecutions : These are judicial investigations of those responsible for human rights violations. Prosecutors frequently emphasize investigations of the “big fish”: suspects considered most responsible for massive or systematic crimes.

(ii) Truth commissions : These commissions of inquiry have the primary purposes of investigating and reporting on key periods of recent abuse. They are often official state bodies that make recommendations to remedy such abuse and to prevent its recurrence. (iii) Reparations programs: These are state-sponsored initiatives that help repair the material and moral damages of past abuse. They typically distribute a mix of material and symbolic benefits to victims, benefits that may include financial compensation and official apologies.

(iv) Amnesty : Amnesty (from the Greek word "forgetfulness") is defined as: "A pardon extended by the government to a group or class of persons, usually for a political offense; the act of a sovereign power officially forgiving certain classes of persons who are subject to trial but

52



have not yet been convicted." It includes more than pardon, in as much as it obliterates all legal remembrance of the offense. Amnesty is more and more used to express "freedom" and the time when prisoners can go free.

(iv) Gender justice: These efforts challenge impunity for sexual and gender-based violence and ensure women’s equal access to redress of human rights violations.

(v) Security system reform: These efforts seek to transform the military, police, judiciary and related state institutions from instruments of repression and corruption into instruments of public service and integrity.

(vi) Memorialization efforts : These include museums and memorials that preserve public memory of victims and raise moral consciousness about past abuse, in order to build a bulwark against its recurrence. Although these initiatives are widely understood to form a basis for transitional justice efforts, they do not represent an exclusive list. Many societies have developed other creative approaches to past abuse—one reason why the field has gained both strength and diversity over the years.2

2. Guiding Fundamental Principals of all Transitional Justice Mechanisms

Transitional Justice aims to ensure the proper enforcement of fundamental international law norms throughout whatever process a State adopted. It is generally a fusion of International Humanitarian Law, International Human Rights Law and the principles of due process in criminal prosecutions.

2 Marc Forget, Crime as Interpersonal Conflict: Reconciliation Between Victim and Offender,( Carol A. L. Prager and Trudy Govier eds., Wilfrid Laurier University Press, 111-35, 2003)

53



The Truth – the truth of the past must be known, officially proclaimed, acknowledged and publicly exposed. This truth is determined by establishing a record of human rights abuses.

Justice - includes restorative justice/criminal justice/redistributive justice/social justice.

Meaningful Democratic Reform - entrenchment of the rule of law within society and building a society with institutions that ensure that the kinds of violations being dealt with will never happen again.

Building Lasting Peace - making sure that the country does not return to violence.

The Policy – this must represent the will of the people and should not violate international law related to human rights. The policy must include reparative measures. The policy must ensure that a framework for ‘preventative’ measures is put in place.

Balance of Power - how does the new state or those involved in the new state hold accountable those who perpetrated the most egregious violations particularly if they are part of the new transitional structure and still hold power? Who does the new state hold accountable? What crimes should be punished ?3

3. Reconciliation in a Transitional Justice Perspective

3.1 Transitional Justice and Sustainable Peace

The issue of transitional justice in post-conflict societies has taken on increasing importance in the last few years. In many cases where there has been external intervention, there has also been some effort towards establishing different forms of transitional justice. The international community will, in peace operations and during post-conflict reconstruction, begin to assist and supply transitional justice, in a space where some forms of justice mechanisms already exist, but

3 Laurel E. Fletcher and Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Human Rights Quarterly 601 (2002)

54



also where there is a void of such mechanisms. These transitional justice mechanisms are essential to stability and sustainable peace.

Transitional justice mechanisms are created to deal with crimes that were committed during a conflict period, at a stage where that society is at the cusp of transition from a society of conflict to one of democracy and peace. There are wide-ranging options available, to the transitional governments and the international community assisting them, to tackle these crimes – not only a dichotomy of punish or forgive, and local ownership of these processes is paramount.

This part seeks to examine the forms of transitional justice, where local ownership can be more easily established. It will analyse different methods of transitional justice in post-conflict societies, drawing on a number of cases, building on the assumption that some form of transitional justice is essential for reconciliation, future stability and peace, and moreover that it can serve to increase the sense of local ownership of the whole process of post-conflict reconstruction.4

3.2 Reconciliation

It is impossible to discuss transitional justice without reference to certain key concepts, which are all interrelated – one of which is reconciliation. Reconciliation is the ultimate objective in all post-conflict societies and post-conflict reconstruction processes, however, is often very vaguely defined, if at all. It has been referred to as acknowledgement and repentance from the perpetrators and forgiveness from the victims, as non-lethal co-existence, as democratic decision-making and reintegration, and as encompassing four concepts namely truth, mercy, peace and justice, concepts which in themselves are difficult to define.

National reconciliation is achieved when societal and political processes function and develop without reverting to previous patterns

4 Jack Snyder and Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of International Justice, 28 International Security, 42 (2004)

55



or the framework of the conflict. Individual reconciliation is the ability of each human being to conduct their lives in a similar manner as prior to the conflict without fear or hate. This distinction is crucial because it is possible to achieve national reconciliation without achieving individual reconciliation. National reconciliation may come at the expense of reconciliation at the individual level, although political processes may proceed and progress individuals may find greater difficulties in dealing with their experienced traumas. However, reconciliation at the individual level is also independent of reconciliation at the collective level. Moreover, some transitional justice mechanisms can promote one type of reconciliation more than others.

Although there is currently a growing consensus of the nexus between peace and justice, for example the UN Secretary General has emphasized the importance of integrating justice into the peace process, reconciliation is still frequently described as incompatible with justice. The justice versus reconciliation, justice versus peace, justice versus truth debates all emphasise that justice is retributive and reconciliation is restorative and that there is a trade-off involved. Hence inferring that justice, in the meaning of criminal proceedings of one type or another against individuals to attain individual guilt followed by punishment, will not lead to reconciliation, stability or peace. It is the complementary characteristics of transitional justice mechanisms in conjunction with local ownership that will be emphasised, and how this can lead to sustainable long-term peace.

4. What transitional justice is supposed to achieve:

4.1 Trials and reconciliation:

Claims regarding the positive role of trials in promoting reconciliation are relatively recent. Until the late 1980s (and based mainly on the Latin American experience), prosecutions were considered anathema to the goal of securing peace, and thereby reconciliation. Recent scholarship is more nuanced. Today, many advocates of prosecution make the case that trials, whether alone or in

56



combination with other mechanisms such as truth commissions, can contribute to peace, and hence reconciliation. Mendeloff, for example, argues that the truth telling that takes place during trials uncovers individualized responsibility for crimes, which promotes group reconciliation. Others are more sceptical to the potentially reconciliatory effect of trials. Laurel E. Fletcher and Harvey M. Weinstein caution that “the assumption that holding individuals accountable for atrocities alleviates despair, provides closure, assists in creating and strengthening democratic institutions and promotes community rebuilding overstates the results that trials can achieve.”5

According to these authors the causes of war must be understood and addressed before social repair (which reconciliation is defined as a part of) can be achieved. Placing individual accountability does in their view not necessarily solve the collective guilt problem. They stress “that the focus on punishment of perpetrators may have the inadvertent consequence of transforming these wrongdoers into scapegoats or victims in order to perpetuate the political mythology of a particular social group. This may exert an untoward effect that undercuts the advantages of punishing perpetrators.” Other scholars, like Jack Snyder and Leslie Vinjamuri, also suggest that prosecuting perpetrators of human rights after periods of conflict may undermine peace and lead to renewed violence or an increase in repression. Hunjoon Kim and Kathryn Sikkink claim that in situations of civil conflict and war, human rights prosecutions will exacerbate human rights violations.6 Under these scenarios, trials may be detrimental to reconciliation. Many argue that “digging up the past” in postconflict settings can trigger new tensions by provoking a backlash on the part of those to be prosecuted – and hence limit the possibilities for reconciliation. Where wars have not yet ended, the prospect of prosecutions many reduce leaders’ incentives to put down their guns.

5 Laurel E. Fletcher and Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, 24 Human Rights Quarterly 601 (2002) 6 Kim and Sikkink, Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries, 939–963.

57



Most sceptics do not entirely deny the potential benefit of trials, but they urge a sequenced approach that postpones legal punishment until peace is sufficiently established.7

4.2 Truth commissions and reconciliation:

Opinions have shifted as to whether or not truth promotes reconciliation. Until quite recently, revealing the truth about gross human rights violations was seen as an obstacle to reconciliation, in that it could promote animosity, reopen old wounds, and increase political instability. Currently, however, “the idea that a durable peace requires countries to address past violence is now widely held and promoted by influential leaders and institutions under the broad heading of “transitional justice.” Truth commissions are expected to have an impact at different levels. Starting with the national or political level, the fact that a government sets up a truth commission may in itself be perceived as an effort to uncover crimes of the past, thus publicly acknowledging that violence has taken place – which is important for those who have suffered repression and violence. Truth commissions have been seen as a way to promote political reconciliation by fostering dialogue across lines of political and social conflict.8

Moving from the political to the societal and individual levels, there are many and conflicting claims connected to the process of truth telling itself. Payam Akhavan asserts that “truth-telling promotes interethnic reconciliation through the individualisation of guilt in hate-mongering leaders and by disabusing the people of the myth that adversary ethnic groups bear collective responsibility for crimes.”9 Along the same lines, truth telling is believed to contribute to psychological healing of individual victims and thus promotes social healing and group reconciliation. Some claim that “truth telling 7 Ruti Teitel, The law and politics of contemporary transitional justice, 38 Cornell International Law Journal 837-862 (2005) 8 Amy Gutmann and Dennis Thompson, The Moral Foundations of Truth Commissions, (Robert I. Rotberg and Dennis Thompson, eds. Princeton: Princeton University Press, 41, 2000) 9 Payam Akhavan, Justice in The Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal,20 Human Rights Quarterly 766 (1998)

58



demanded by victims is essential for reconciliation.” Yet, this is not uncontroversial as other scholars claim that truth-telling may lead to re-traumatisation of the victims. Not all scholars then view truth commissions favourably. Many of the claims for the relationship between truth telling and reconciliation in a context of peace building are flawed or at least questionable. To succeed in promoting reconciliation, truth commissions must be managed in a sensitive way. While truth telling can be considered a cornerstone of transitional justice, it is also essential to recognize that “too much truthtelling can be counterproductive and instead of healing social cleavages can generate more.”10

4.3 Amnesties and reconciliation:

Amnesty, rather than prosecution, was the common response to mass atrocity between the end of the Second World War and the end of the Cold War. In spite of the world-wide increase in criminal prosecution of past human rights violations, the number of countries imposing amnesties for gross human rights violations, either during peace negotiations or after the end of violence, has in fact been growing in recent years. This implies that amnesties are frequently accompanied by some form of criminal accountability. Indeed, amnesties have increasingly been considered a transitional justice mechanism in its own, not only as an antithesis to prosecutorial justice. Prior to about 1990, it was assumed that amnesties contributed to impunity rather than to safeguard human rights. After the establishment of the ICC in 2002 and the spread of universal jurisdiction, there has been a growing international legal trend against using amnesties for the most serious crimes, such as war crimes, crimes against humanity, and genocide. Simultaneously, there has been a more nuanced scholarly debate with respect to what purposes amnesties may serve, especially in transitions from violent armed conflict.

10 James L. Gibson, Overcoming Apartheid: Can Truth Reconcile a Divided Nation? 82 Annals of the American Academy of Political and Social Science 103 (2006)

59



Amnesties have historically been used when governments are either unwilling or politically unable to prosecute alleged human rights violators after the political transition to a democratic regime. Amnesties come in many shapes and forms: self-amnesties, partial amnesties, blanket amnesties etc. An important point to note is that amnesties do not necessarily foreclose all kinds of prosecution, as some crimes or some kind of perpetrators may be excluded from the amnesty law. The main argument for amnesties is that they can, in the short term, reduce political conflict and lessen the chances of recurring violence, thereby fostering peace and reconciliation. Amnesties have often been considered vital to secure transitions from authoritarianism to democracy, or from armed conflict to peace. As convincingly argued by Mark Freeman, “for societies to regenerate after mass violence or genocide, there may, in fact, be no other choice.”

The transition itself is considered a prerequisite for reconciliation to take place. More than anything else, legal amnesties have been considered a tool to ensure political stability, and thus a necessary measure to facilitate reconciliation. Critics, however, counter that amnesty cannot lead to long-term reconciliation, among other reasons because “amnesia is the enemy of reconciliation.” Increasingly, scholars have started to argue for combining amnesties with other measures. Mallinder contends that amnesties can even have positive impacts “provided that they are introduced in good faith and are accompanied by other transitional justice mechanisms and institutional reforms.” When combined with truth commissions, amnesties may encourage the disclosure of more extensive information. This information may, in the long run, be used for prosecutions and hence promote justice, adding another element needed for reconciliation.11

11 Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide 134 (Oxford and Portland, Oregon: Hart Publishing, 2008).

60



4.4 Local justice initiatives and reconciliation

Scholars of local justice practices in the context of political transition emphasize the potential role of these practices, such as ritual ceremonies, in promoting reconciliation among families and communities – especially in the context of absence of formal transitional justice mechanisms. In recent years, a large and growing literature has developed on this subject. The main general claims coming out of this burgeoning literature is that civil society initiated processes aiming for some form of restorative justice will help mend the social fabric after a society has been torn apart by internal armed conflict or genocide. Typically, rituals enacted to promote reconciliation directly engage victims and perpetrators, contain elements of dialogue or rites, aim at social inclusion rather than punishment, and are ultimately aimed at making people who were former enemies cope with living in the same community or society without resorting to violence.

5. Tensions between transitional justice mechanisms and reconciliation

Despite claims regarding the positive effects of various Transitional justice mechanisms on reconciliation, the traditional view of transitional justice as a threat to national reconciliation has not been refuted. Because “truth commissions and criminal tribunals investigate extremely divisive and violent histories,” writes Bronwyn Anne Leebaw, “they have often been viewed as obstacles to reconciliation and charged with “opening old wounds,” generating political instability and interfering with forward looking political change.”12 Since these mechanisms have also been promoted as vehicles for reconciliation, the debate has focused on tensions, trade-offs and dilemmas associated with transitional justice. In the 1990s, the dominant perspective was of a forced choice between truth (seen as a second-best option) and justice (the preferred option).

12 Leebaw, The Irreconcilable Goals of Transitional Justice, 96-97

61



More recent scholarship has portrayed truth and justice as mutually dependent and mutually reinforcing. The dominant current view is that societies seeking reconciliation should employ a variety of transitional justice mechanisms rather than just one – echoing what Fletcher and Weinstein (2002) suggested a decade ago. Proponents of this view assume that different transitional justice mechanisms can be mutually reinforcing and complementary, contributing jointly to the goal of reconciliation. Leebaw, however, makes a strong case that more attention should be given to their irreconcilable goals. Referring to the political role of transitional justice mechanisms, she contends that “their efforts to expose, remember, and understand political violence are in tension with their role as tools for establishing stability and legitimating transitional compromises.” Thus, the debate has not yet reached a conclusion. We agree with Brounéus that “claims made of the relationship between for example truth, justice, peace and reconciliation are in need of empirical backing.”13

6. Conclusion

Addressing the issues of human rights violations and crimes against humanity in a transitional society trying to recover from years of conflict and violence amidst numerous international actors attempting to support the different processes in the post-conflict reconstruction phase is far from a simple task. There are several factors that must be weighed, assessed and determined before starting the process of transitional justice. What must first be acknowledged is that each transitional society is unique, although it contains numerous similarities to other postconflict societies, the way in which to approach past crimes must be specifically designed for that country. There cannot be a ‘one size fits all’ approach to transitional justice.

Among the factors influencing the choices and outcome of any process of transitional justice is the context of the conflict, which

13 Rajeev Bhargava, Restoring Decency to Barbaric Societies, 45-46 ( Robert I. Rotberg and Dennis Thompson, eds. Princeton: Princeton University Press, 2000)

62



incorporates all aspects of the conflict from its inception to its end. This, in large part, determines what types of transitional mechanisms can be applied, but also leads to greater societal reconciliation. The level of international involvement and willingness to contribute also affects these processes and cannot be ignored. Lastly, the culture of the country and how it deals with issues of human rights violations will significantly impact upon the outcome.

What is crucial is that local ownership is not only promoted, but ensured throughout the implementation of transitional justice mechanisms –without local ownership, the success of the processes will be diminished. Truth commissions, local trials and traditional mechanisms all commonly share a greater potential for local ownership. There must be an awareness of the distinction between national and individual reconciliation, particularly since different types of transitional justice mechanisms can advance one type of reconciliation more than another. This underlines the importance of implementing more than one type of mechanism to address past abuses. If reconciliation is reached on one level, but not on another, instability and insecurity can result.

The prevalent tendency to promote one type of mechanism over another to deal with past crimes endorsing a dichotomous approach to transitional justice, which stresses restorative versus retributive justice must be abolished. Although there has been some progress in this area in international operations, greater emphasis must be placed on the complementary nature of the transitional justice mechanisms so that they might serve the different needs of reconciliation in the mission country. No transitional justice mechanism is flawless and considering that they have to address gross human rights violations in a context of turbulent post-conflict settings whilst trying to achieve reconciliation this is not surprising. However, reconciliation cannot be obtained by transitional mechanisms alone, it takes more time and effort than any time-restricted trial, truth commission or traditional process can achieve. Transitional mechanisms are steps towards reconciliation, not

63



its achievement. Nevertheless, there are certain factors that could improve transitional justice mechanisms and the chances of stability, security and sustainable peace.

64



GLOBAL INEQUALITY AND INTERNATIONAL TRADE: CAN THE GOAL OF GLOBAL DISTRIBUTIVE JUSTICE BE

ACHIEVED?

AnkitaPandey*

AnandVerma**

Introduction

The alarming rates of global poverty, leads us to ponder over the grave inequalities that exist as of today. It is necessary to be sensitized enough towards these issues in order to appreciate fully the theories of global distributive justice. Apart from poverty, there are other facts such as that people in certain parts of the world lack access to minimum necessities of life while some in other parts have surplus. World inequality is inequality between individuals independent of their country of origin.1 If the gap between the global rich and the global poor is widening, then world inequality is increasing.2 In these respect, theories of global justice drives us to the point that we have at least some obligations of justice to respond to such issues.

A principle of distributive justice is that which tells us how some particular benefit or burden or set of benefits and burdens ought to be shared out.3 So a principle which says that we ought to receive free basic education would count as a principle of distributive justice.4 But, there exists substantial disagreement among the theorists as regards the scope of distributive justice. Some are of the view that distributive justice seeks to regulate the distribution of benefits and burdens within single society or nation while others strongly support the distribution of the benefits and burdens at the global level. So, a theory of global distributive justice suggests that we have some entitlements of justice

* Advocate, High Court of Judicature, Allahabad, Uttar Pradesh & ** Legal Manager, ICICI Bank, Regional Head Office, Bhopal, Madhya Pradesh 1S. Caney, ‘Global poverty and human rights: the case for positive duties’ in T. Pogge (ed.), Freedom from poverty as a human right 291 (Oxford University Press, 2009). 2Ibid. 3 C. Armstrong,Global Distributive Justice 16 (Cambridge University Press, London,2012). 4Ibid.

65



having global scope and also some duties of justice having global scope.5 As part of entitlements, say people around the world have right of access to free basic education and clean drinking water. Similarly, as regards duties, individuals, nation states, organisations, corporations might be obliged, say to contribute towards eradication of global poverty. It must be remembered in this regard that if we do not perform our duties, it would amount to injustice and the entire idea of distributive justice at the global level would collapse. This aspect of duties would be important to take into account when we would deal with the obligations of the developed world in relation to international trade.

Then, there are two kinds of approaches which are given by different philosophers and theorists in order to explain the concept and application of global distributive justice in their own way, namely egalitarian and minimalist approaches. An egalitarian approach is one which places high value on equality. It might require as such some valuable resource to be divided equally between all people or that people must have an equal chance to obtain it for themselves. They are concerned about equality at the global level and not restricted to the level of nation-states. So, egalitarian accounts generally tend to substantially narrow down global inequalities.6 However, inequalities are acceptable to them to a certain extent and in such cases valid reasons must be provided for justifying situations where inequalities do exist.7 Minimalist approach is quite different. They basically attempt to draw a line between what is the minimum necessity for a decent life and what is surplus. According to them, once we are able to secure a decent minimum for all, inequalities in the distribution of various resources and goods would not be deemed to be unjust. This concern of everyone having enough clearly defines the broad standards that should apply to the issues of global distributive justice.8 So, the question which

5Id. at 17. 6 D. Miller, ‘Against global egalitarianism’ 9(1) J.Ethics 62 (2005). 7Ibid. 8Supra note 3 at 89.

66



arises with respect to both these approaches is that whether it is the egalitarian or the minimalist account which serves the purpose of achieving the ideal of global distributive justice.9

Very often when we voice our concerns towards global distributive justice, the issue of injustice as regards international trade catches our attention. The debate and discussions that take place in this regard often revolve around the need for redesigning the rules of international trade so as to provide the developing countries a fair chance of competing in the global market. We also talk about free and fair trade so as to avoid the exploitation of the developing countries at the hand of the developed countries because of their superior bargaining capacity by which they tend to set the accounts of international trade in a manner which suits their interests. In this paper what we shall try to examine is as to how a theory of justice or rather a theory of global distributive justice would respond to the trade related issues. Although the theories relating to trade justice are still developing, the idea of global distributive justice tend to provide a general guidance as to what normative standards can apply to the issues of international trade. This paper aims to achieve at a consensus as to how the ends of Global Distributive Justice be met for all- developing and developed countries. For this purpose, the authors have framed the following two research questions which would analyse different aspects of the issue in hand.

1. Whether the idea of Global Distributive Justice in the form of supposed benefits of free trade, always remain a mirage in light of prevailing inequalities between developing and developed countries?

International trade practice has a remarkable effect on the economic development of countries.10 The question arises- whether such practice operates on fair terms or there exist marked dominance of

9J. Lamont and C. Favor (ed.), ‘Distributive Justice’, Stanford Encyclopedia of Philosophy(2013)available at: http://www.plato.stanford.edu/entries/justice-distributive/. 10 A. Ghose, ‘Global inequality and international trade’ 28(2) Cambridge J.Econ.230 (2004).

67



most powerful countries in setting the terms of trade. Whether the benefits of free trade are distributed equally among all the countries? Unless we answer these questions we cannot really talk about fairness in trade or abuse of dominant position by developed countries in international trade. Since international trade contributes significantly to the economic development of nations improving the livelihood of people involved in transaction and grants an opportunity to reap the benefits of economic specialization11, it could be argued that international trade is an important factor to be considered for global justice. Therefore, a world without any international trade would have less economic specialization, would be much less efficient and would undergo much slower economic growth. In this way, international trade could be held as a determining factor for ascertaining Global Distributive Justice. But there seems to be disparity in the terms of free trade between countries. One country may be able to produce certain kind of goods more easily and economically, may be because of resources available with them. On the other hand, the same country may not be able to produce certain other kind of goods, which their neighboring country may produce. Thus there exists a tendency of mutual dependency among nations. If these countries decide to trade with each other on mutually agreeable terms then each country could get what they need more efficiently.12 That is to say, they could enjoy the benefits of economic specialization. But now the question arises as to how these benefits of fair trade are distributed?13 There occur a number of practical issues when we talk about equal distribution of resources or wealth. Generally speaking, a developed country will always have state subsidies to protect their own people and economy. And rightly so because they can afford to make huge capital investments in order to fulfill their needs. But when it comes to developing or least developed nations, there is a huge risk involved which they cannot afford to take. Even if they do, it takes a long time to

11Supra note 10 at 233. 12S. Caney, ‘Global interdependence and distributive justice’ 31(2) RIS389 (2005). 13 A. Brown and R. Stern, ‘Concepts of fairness in the global trading system’ 12(3) PER 294 (2007).

68



get returns over huge investments. Moreover, it‘s a general strategy adopted by developed countries to engage themselves into dumping activities, which drives the infant industries back to the ground. Because of such factors only it becomes extremely difficult to even provide developing countries a level playing field. This is the basic reason why there exists uneven distribution of trade benefits which in turn results in a demand of fair trade rules. Therefore, it is a central issue of this paper throughout how the minimalist and egalitarian approaches to global distributive justice might address these issues of international trade.

Applying of the two approaches to international trade, we would say that minimalists would set out certain minimum conditions that ought to be attached to international trade, such as that it should be non-exploitative or that it should not jeopardize the independence of other states. On the other hand, egalitarians would apply full blown principles of distributive justice to international trade. An important concern in this regard is also the disagreement of the two approaches on the issue of whether participation of the nation states in international trade is voluntary or not. For minimalists like Rawls participation is voluntary-that is they may choose to trade globally as well can they choose to remain self-sufficient on their own resources.14 Egalitarians like Betiz, on the other hand are of the view that participation in international trade is essentially non-voluntary for the reason that there are no other reasonable alternatives.15

Thus, we see that there are a lot of disagreements among the two approaches theoretically. But, practically they do converge on somewhat similar points. For instance, minimalists and egalitarians both would agree on the need for reforming organisations such as WTO or the need to reduce tariffs so as to enable developing countries to develop economically. So, as regards the practical aspects, the

14Supra note 3 at 171. 15Supra

69



difference between the minimalists and egalitarians is merely of degree and emphasis.

When we talk about ‘fairness‘ in international trade we are basically concerned with two aspects, that is, fairness of procedure and fairness of outcome, which gives rise to two concerns. Firstly, free trade as such has not been achieved in practice howsoever it might have been discussed theoretically. Secondly, the deep structural inequalities do not allow the actual realization of free trade. As already stated, the developing world is facing immense pressure from the developed countries in the form of massive tariffs on their products. Moreover, developed countries pay huge subsidies to their domestic industries which in turn do not allow free competition. Thus, the problem with free trade is that it is not strictly abided by and adhered to by the developed countries by not allowing the developing countries to compete fairly in the global market.16 Joseph Stiglitz, a former Chief Economist of the World Bank states that, ‘In part, free trade has not worked because we have not tried it: trade agreements of the past have been neither free nor fair.’17

Another significant issue which arises iswhether the acts of ‘protectionism’ on part of the developed countriesshould be taken as bearing negative impacts on the developing countries? That is to say, there might be a legitimate act on part of a developed state to grant subsidies to its industries in which the majority of its producer-population is engaged and not because it wants to depress the global market. In such cases, it would not be correct to say that such an act is wholly objectionable. However, some of the theorists of global justice argue that a degree of protectionism is acceptable on part of the developing countries because for them it is important to nurture and protect their infant industries which would enable them to enter the global market, thereby reducing the gap between rich and poor countries.18 Chris Armstrong, in this regard argues in favour of the 16Supra note 13 at 296. 17 Joseph Stiglitz,Making Globalization Work 62 (W.W. Norton & Company, 1stedn., 2006). 18Supra note 3 at 180.

70



developing countries by saying that if we look into history the so called well-developed nations as they stand today, Britain, USA, Japan and South Korea have pursued development by way of protectionism only.19Thus, before the developing countries liberalize their trade practices they should be allowed to maintain tariff barriers with the developed countries in order to prevent them from encroaching the market of the developing countries (which the developed countries should not be allowed to maintain).

In this regard, we must also take note of the idea of ‘strict reciprocity’20 embedded in the WTO rules (that countries match each other‘s tariff reductions). The practice that we supported above can best be described as something called ‘diffuse reciprocity‘21, i.e. wealthier nations are expected to make more concessions than the poorer ones. Thus, in the light of the existing disparities between the developed and the developing world, it can be suggested that there is need to reform the policies and practices of WTO emphasizing more upon liberalizing and regulating the various key aspects of international trade so as to make development feasible and practicable for the developing countries as well.

2. Whether the linkage of minimum labour standards to trade would be in the interest of the developing countries or make it even harder for them to achieve economic parity with the developed countries?

This issue is concerned with the lower labour standards in developing countries in order to come at parwith the developed countries. That is, the developing countries (or producers in developing countries) would offer very low wages or poor conditions of work to their own labourers in order to compete with the developed countries. This is evident when the producers in the developing countries engage themselves in a ‘race to the bottom’ strategy, to offer lowest cost of

19Supra 20World Trade Organization, World Trade Organization Ministerial Declaration (2001). 21Supra note 3 at 179.

71



their products to the multinational corporations and establish a base for their manufacturing operations abroad.

In this regard, it would also be pertinent to take into consideration the ‘anti-sweatshop’ movement. It is characterized by persuading consumers to refrain from consuming products or in any other way interacting with large corporations which are engaged in ‘sweat-shop‘ labour such as prohibition of membership of trade unions, rampant child labour, forced labour or sexual harassment.22 However, it may be argued that individual consumers boycotting individual corporations might not be enough. The reason being that global economy gets largely affected by very poor labour standards as it not only hinders the idea of free trade but also leads to substantial inequalities.

Now, what could be the other alternative approaches available before us? One view is with respect to the normative standard which says that it is wrong to engage in trade with countries which oppress or exploit its workers or labourers. What would be more feasible is to establish a link between the labour standards23, to be monitored by institutions such as ILO, and trade, to be monitored by the WTO. Sanctions (in the form of expulsion of such a member from the WTO) can be imposed on countries which fail to observe the minimal set standards in relation to the labour welfare mechanisms. This could act as an effective incentive upon them to improve their labour standards or else they will be cut off from accessing the global markets.Many of the egalitarian philosophers seem to be influenced by this idea. Moellendorf24, for instance, is of the view that participation in trade should be contingent on the fact as to whether there exists conformity to a ‘modest set of standards‘. He recognizes some of these standards to be the right to belong to a union, eliminating child labour and forced 22I.M. Young, Global Challenges: War, Self-Determination and Responsibility for Justice 165 (Cambridge University Press, London, 2007) in Chris Armstrong,Global Distributive Justice184 (Cambridge University Press, London, 2012). 23 C. Barry and S. Reddy, International Trade and Labour Standards: A Proposal for Linkage 18 (Columbia University Press, New York, 2008). 24D. Moellendorf, Cosmopolitan Justice 95 (Westview Press, New York, 2002).

72



labour, and eliminating discrimination in employment. Mathias Risse25 favours presumption against trading with counties which oppress certain sections of their own population.

At the multilateral level, however, it has been argued that any effort to formally link trade and international labour standards would inevitably encounter a number of substantive legal and technical problems.26 The most prominent amongst them would be the coherence and content of the different legal streams and the appropriate forum to receive complaints (labour standards are the domain of the ILO, while trade law is that of the WTO). There are also fundamental differences in the approach of the two organizations. The WTO‘s dispute settlement mechanism was created solely to deal with trade disputes, primarily through the withdrawal of measures that are inconsistent with WTO agreements. An argument of those calling for structured linkages between trade and labour potential recourse to the formal dispute settlement mechanism of the WTO, which contrasts with the absence of comparable enforcement procedures within the International Labour Organization.27 It is argued that existing WTO rules could be sufficient to authorize domestic legislation applying international labour rights by conditioning market access on compliance or respect with such labour standards. This approach would ostensibly rely on what is known as ‘product process‘ rules of international economic law, which advocates trade and labour standard linkages claim prohibits the imposition of regulatory and trade barriers upon imported goods because of the way in which they were produced.28

However, the kind of linkage that we talked about in the first place might turn out to be a bit controversial, because it is suspected to be counterproductive. Itissubmittedthat imposing sanctions on the developing or the underdeveloped countries for the poor labour 25 M.Risse, ‘Fairness in trade: Obligations from trading and the pauper-labor argument’ 6(3) J. Pol. Phil. Econ. 372 (2007). 26Supra note 23 at 24. 27Information Paper on ‘The Evolving Debate on Trade and labour Standards’, International Organization of Employers(2006). 28Supra

73



standards would be actually penalizing them for their own poverty. This could be used as a tool by the developed countries for protecting their own market from competition. The insistence on certain minimal labour standards in effect would act as a non-tariff barrier to trade, so as to keep the goods from such developing countries out of the domestic market of the developed countries. In order to ensure the good standards that we are talking about are met in the developing countries, it would require a monitoring apparatus which cannot be effectively realized without effective governance. They would require a lot of infrastructural investment in order to achieve basic health and safety standards for all its workers.29 Although, there may exist a moral argument that developed countries should support the developing countries in meeting such demands but there could be no effective results if the intention is actually to oust the developing countries from competition in the domestic regime.

But, to say that standards would be abused is no good reason to abandon them. Instead, it would be better if the organizations such as the WTO overviews the standards and make impartial judgments as to whether the agreed standards are met in respect of particular goods. But even if that were the case, we might worry that imposing labour standards on other countries, however impartially adjudicated, is still (unfairly) requiring them to pay for our preferences.30 In addition, the working condition of the labourers in the developing countries is in itself to some extent, the result of the unfair decisions made by the developed countries and the consumers.

Kapstein is of the opinion that the requirement that developing countries must adhere to the minimum and reasonable labour standards might be legitimate but would certainly result in ousting them from the global market.31 If this happens, then neither there will be any improvement in the labour standards within the developing countries nor any solution to the poverty conditions there. He further 29Supra note 25 at 383. 30Supra note 23 at 20. 31 E. Kapstein, ‘Distributive justice and international trade’ Ethics Int. Aff. 13(1) 204 (1999).

74



says that a just solution to this problem could be that the developed countries lend support in a number of ways to the developing countries so that the root causes of such degrading labour standards can be mitigated.32 For instance, if an industrialized country takes the issue of child labour seriously, they should be willing to support the poorer countries where such child labour is rampant, so that schools and other institutions can be set up to provide education and other necessary skills to the children.

Thus, we see that there are major disagreements on the issue of linking labour standards with that of trade as such. Some of those who are supporters of labour standards challenge the view that ending child labour, for instance would be detrimental to the growth and economy of the developing countries. It would, however, be detrimental to the interest of those unscrupulous employers who are largely dependent on the labour of such children. Also, it is evident that if we remove children from the employment sector it provides better opportunities and paid-up jobs for the adults, on one hand and improves the health and education of the child on the other. Kapstein suggests that if we introduce stricter labour rules and at the same time open the market of the developed countries for goods of developing countries, then the overall effects would be beneficial and would also contribute to the purpose of global distributive justice.33 Another kind of disagreement exists regarding the acceptance of the linkage between labour standards and trade. The arguments advanced for this kind of an assertion is that it is not necessary that the labour standards in the developing countries should be exactly the same as that in the developed countries. What is required is a minimum adequate standard which is, at the same time context-sensitive,that is, the standards could legitimately vary according to the economic condition of the country in question. So, it implies that the least-developed countries can adopt low standards of labour which can be made better as that country

32Supra 33Supra note 31 at 205.

75



progresses.34 However, there are certain standards(for instance abolition of slave labour) which every country irrespective of its level of development must conform with.

Moreover, the issue of demanding minimum labour standards by the developed countries under the pretext of imposing non-tariff barrier to trade with developing countries prevents the developing countries to progress economically. Such attitude on the part of the developed countries has proved to be detrimental to the interest of the developing countries.More than anything else what is required is a change in the attitudes, if we are seriously concerned of enabling the developing countries to attain parity with the developed countries.

Conclusion

International trade as we see in the present context needs immense reform so as to become more fair and equitable. Some such reforms can be taken into account as suggested by various theorists. For instance, Thomas Pogge35 is of the view that today we share an institutional order at the global level. This order is partly constituted of institutions such as the World Trade Organisation, International Monetary Fund, United Nations, etc., and partly the Conventions and Agreements relating to international trade. Pogge argues that this institutional order is a sense imposed on people (i.e. the imposition of the shared institutional order by the better off upon the worst off). The reason why the developed countries are able to do so are obvious, that is because of their superior bargaining power in institutions such as the WTO which often ends up in concluding such terms and conditions which suits their economic interests to a great extent. As a result, the developing countries are not able to come at economic parity with the developed countries and more so, they could not even cater to the basic human rights of their citizens. Pogge says that we are acting unjustly

34Supranote 23 at 25. 35 T. Pogge, ‘World poverty and human rights’ in Chris Armstrong, Global Distributive Justice 28 (Cambridge University Press, London, 2012).

76



when we impose an institutional order on people which prevents them from realizing their basic human rights.

Further, according to some global egalitarian theorists, we must seek to advance the position of the globally worst off by some new and advanced programmes of institutional reforms. According to Beitz, instead of a global order which caters only to the interests of the influential countries, a global difference principle would carve out a way for us to ensure rapid advancement of the poorer countries.36 We could investigate possibilities for adopting preferential tariffs that allowed developing countries to establish lucrative industries at the same time as removing barriers to the import of their goods on the part of the developed countries.

In the light of persistent inequalities among nations, the International Financial Institutions must make sure that their policies tend to avoid the problems sketched above. One thing they might do is focus on giving country-level recommendations that take into account each country‘s individual circumstances, history, etc. in deciding whether or not to recommend free trade reforms. Developing countries would gain far more from their own liberalization of trade barriers than liberalization by the industrialized countries.

Some other measures that can be adopted so as to achieve global distributive justice may be to cancel the debts of the poor countries as well as trying to make the International Monetary Fund a more effective tool of development.Thus, we can conclude that there is need for immense reform in international trade so as to make distributive justice a reality at the global level. This reform has to be in the form of the policies and attitude on the part of the developed world and international financial institutions so as to allow the developing world to have a fair chance of competing with them, thereby reducing the existing inequalities between them.

36 Charles Beitz, ‘International liberalism and distributive justice: a survey of recent thought’ 51(2) World Polit. 288 (1999).

77



AN EXPLORATION OF THE LEGAL PROVISIONS TO SAFEGUARD THE VICTIMS AGAINST THE PREVENTIVE

DETENTION IN INDIA

Bandna Shekhar* Dr. Sidheswar Patra**

Introduction

India is a country having different religions, different casts, different cultures, different languages, different norms and different customs etc. etc. Caste and communal violence is very common in India. National security, integrity and individual dignity is of core values in the constitution of India, Article 21 of the Constitution of India guarantees a life with dignity to each individual, is a fundamental right and is non-derogable.1

The attitude of the state towards criminals has ever remained harsh to suppress and to shun the criminal activities in the public interest.2 The framers of our constitution decided to retain preventive detention as a means to curb anti national activities. Law of preventive Detention, of detention without trial is an abhorrence to all those who adore personal liberty. Such a law hinders the basic human freedoms which we all appreciate and which occupy prime position among the higher principles of life3.

The nature of Preventive Detention Law is totally different from the arrest and detention of ordinary discipline of a criminal jail and it is applicable in both, emergency and peaceful situation. In case of arrest and detention various safeguards are provided to the arrested person under Article 22(1) and (2) but these safeguards are not provided to the arrested detenu under the preventive detention law under Articles 22(3). The safeguards in connection with this preventive detention are provided under clauses (4) to (7) *Research Scholar & ** Assistant Professor, Uttranchal University, Dehradun 1 M.Tahsheen-uz-zaman, “can law provide solution”, competition wizard, January 2002, P 56 2 Prakash Singh, “making security forces more effective”. Special issue “Spectrum” The Tribune, Jun5, 2003, P 7 3 H. R. Khanna, “Legal classics making of India’s constitution”2nd ed.2008, P 61

78



At present, we have numerous legislations on this subject, but how far the procedures are adequate to protect the interest of a detenu is an unresolved question. The legislative provisions are more favourable towards the arbitrary exercise of powers and it recommends for an immediate action from the side of judiciary.

The judiciary has the vital and primary role to play in such detention cases. The reason is that, in case of a criminal proceeding, a person’s liberty is curtailed under the law as an act of punitive detention, where the application of a judicial mind is ensured prior to the detention, but in preventive detention cases, the executives are empowered with draconian powers with respect to detention orders. Their subjective satisfaction is predominant over the detenu’s interest and the review of its action is given to the Advisory Boards, which is also an executive authority. In such circumstances, there is every possibility of abuse and misuse of power by the detaining authorities, which deprives the detenu of his fundamental right of personal liberty. In many cases, the political purpose and personal retaliation plays a major role in making arbitrary detentions. In simple words, the power to detain a person as a preventive measure has become a dodgy weapon in the hands of state machineries to fulfil their unlawful object.4

About the Study

Researchers here want to find out the safeguard provisions under different laws laid to help the detenu so detained under preventive detention and also to throw some light on the difficulties a detenu faces to avail the rights provided by different laws. It is acceptable that there is hard need of preventive detention laws according to the situation of the country but it is also very much clear from various evidences that these laws have been misused. In May 3rd, 2003 a division bench of the Madras High Court penalised the Kancheepuram collector and a police inspector to pay a sum of one lakh rupees for illegally detaining one Thameem Ansari under the Goondas

4 Available at: http://www.indianlawcases.com/-Preventive%20detention (visited on3rd Jun 2015)

79



Act5. False and Flimsy cases are framed against the individuals, they are tortured in various ways; Farooq Ahmed an engineer on the suspicious grounds that he was involved in May 1996 (Lajpat Nagar) Delhi blast and was acquitted after 14 years of his life languishing in jail, during that time he was living the life of an unknown prisoner in jail or past 12 years. Which is totally against the Indian criminal jurisprudence which says that “one is presumed innocent until proven guilty’’ Life imprisonment means a maximum imprisonment of 14 years, which he had almost completed. It is worth noting that he had even not crossed his under trial period, thus this is also showing slow justice delivery system of India which is also an advantage to those who really misuse these laws for their own selfish ends.

The most thwarting point is the detention is made merely on the suspicion grounds against any individual that s/he may commit any crime in future, then that individual is denied all those rights which are available to a person arrested under general arrest. Which is totally against one’s right to life and personal liberty. Filing of hebeas corpus writ under Article 32 and 226 of Supreme Court of India and the High Court is the only remedy available against illegal Detention. Sunil Batra v/s Delhi Administration6 A post card written by the detenu from the jail was converted in to a writ petition for Hebeas corpus. The writ would lie if the power of detention has been exercised mala fide.

For the detention of an individual who is detained so long and during the detention in many of the cases it is found that the human rights are being violated through torturing and converting the preventive detention in to the punitive detention. Who is going to indemnify for the loss which is done against that individual? Here, researchers are trying to throw the light on the limited security provided by stringent provisions of preventive detention and due to which it is very difficult to avail fundamental rights.

5 A.Faizur Rehman, “Preventive detention an Anarchronism” The Hindu, September 07, 2004 6 AIR 1980 SC 1579

80



Nature of Preventive Detention

The object of preventive detention is not to punish but to intercept the detenu from doing something prejudicial to the state7. The entire scheme of preventive detention is based on the utopia that the state is to protect the interest of the country and welfare of the people from anti social activities by anti social elements affecting maintenance of public order, economic welfare of the country etc8. Putting the interest of the nation above the preventive detention laws have been made for effectively keeping out of motion the detenu during a prescribed period of time by means of preventive detention.9 Realistic result of the adoption of preventive detention as a permanent feature of our constitution is that even in peace time, the court cannot question for the adequacy of reasons for depriving a detenu of his liberty.10

One it is an anticipatory measure and does not relate to an offence while the criminal proceedings are to punish a person for an offence committed by him.11 Under preventive detention a detenu is detained by an order of the executive authorities, who after analysing the previous criminal acts of the detenu deems it necessary to detained the detenu so that the detenu may not Commit any crime at present. But there is huge possibility of misuse of this power by the executive authorities.

Constitutional Safeguards and Restrictions

Fundamental rights guaranteed under the Constitution include the right to equality, freedom and personal liberty, the right to religion, the right to constitutional remedies and the right against exploitation. Article 19 of Constitution include the right to speech and expression, peaceable association, free movement, residence and occupation.12

However, the state may impose “reasonable restrictions” on such

7 Ankul Chandra pradhan v/s Union of India AIR 1997, SC 2814 8 Durga Das Basu, “commentary on the constitution of India’’, 8th edition 2008, P 3304 9 Pushpa devi M. Jatia v/s m. L. wadhwan, AIR1987 SC 1748 10 Gopalan v. State of Madras, (1950) SCR 88 11 warton law lexicon 15thed, 2009, P 1338 12 Article19

81



freedoms in the interest of inter-alia “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order,” etc.13

Constitutional provisions on emergency

Article 352 of the Constitution empowers the President – the head of the executive branch of state to declare a state of emergency, through a proclamation, either nationally or in a particular territory, if there is a threat to security, by war or external aggression or armed rebellion. As mentioned earlier fundamental rights under Article 19 may be suspended during this time.14 However, Article 359 clarifies that fundamental rights under Articles 20 and 21 containing guarantees of fair trial and the right to life and liberty respectively, cannot be suspended even if other rights are suspended in the area in which the Proclamation of Emergency is in operation.

Safeguards under Articles 20 and 21

Article 21 recognizes the right to life and prohibits the deprivation of life or personal liberty of any person except in accordance with the ‘procedure established by law’. Meaning thereby that ‘procedures’ mentioned in Article 21 must be ‘just, fair and reasonable”.15

The Supreme Court, in DK Basu v State of West Bengal16

further extended these procedural guarantees by stipulating guidelines to be followed by the police during arrest and interrogation. The right to life has also been interpreted to include the right to privacy17 and the freedom from cruel, inhuman or degrading treatment18 within its ambit.

13 Article19 (2) 14 Article 258 15 Menaka Gandhi v/s union of India (1978) 1SCC 248 16 1997(1) SCC416 17 Kharak Singh v State of Uttar Pradesh AIR1963 SC 898 18 Francis Coralie Mullin v Union Territory of Delhi AIR 1981 SC 746

82



Article 20 guards against the application of retroactive criminal laws19, double jeopardy20 and compelled self-incrimination.21

Preventive Detention under Indian Constitution

Person cannot be arrested and detained without being informed why he is being arrested.

That person cannot be denied to be defended by a legal practitioner of his /her choice. That person is having a right to be presented before the nearest court within 24 hours. The custody of the person cannot be beyond the prescribed period by the authority of the magistrate.

The Article 22(1) and 22(2) make the above provisions. However, Article 22(3) says that the above safeguards are not available to the following:

If the person is an enemy alien,

If the person is arrested under certain law made for the purpose of “Preventive Detention”.

The first condition seems justified, because when India is in war, the citizen of an enemy country may be arrested.

But difficulty arises with the second clause which was not easy to justify by the constituent assembly. Under Preventive Detention Laws a person can be put behind the bars for two reasons. One is that he has committed a crime. Another is that he will commit a crime in future. Thus Preventive Detention is made merely on the assumption that crime will be committed by a particular person and that can be detained in peacetime. Isn’t it against the safeguards of citizens as provided by Article 22? It seems that preventive detention laws are in

19 Article 20 (1) - “No person shall be convicted of any offence except for the violation of the law in force at the time of the commission of the act charged …” 20 Article 20 (2) – “No person shall be prosecuted and punished for the same offence more than once” 21 Article 20(3) – “No person accused of any offence shall be compelled to be a witness against himself

83



conflict with democratic provisions of the constitution. These provisions are mentioned in Article 22 (1), 22(5), 22 (6). These are: every case of preventive detention must be authorized by law and not at the will of the executive. The Preventive detention cannot extend beyond a period of 3 months. Every case of preventive detention must be placed before an Advisory Board composed of Judges of the High Court (or persons qualified for Judges of the High Court) the case must be presented before the Advisory Board within 3 months, a continued detention after 3 months, if Advisory Board deems it necessary. The person will be given an opportunity to afford earliest opportunity to make a representation against the preventive detention. No person can be detained indefinitely. Article 22 (7) provides exception to the above provisions. This Article mandates that: when the parliament prescribes by law the circumstances under which a person may be kept in detention beyond 3months without the opinion of the advisory board.22

Under the case of Sambhu Nath Sarkar v/s State of West Bengal23 Supreme court held Section 17 of the maintenance if Internal Security Act ,which is talking about detention for more then3 months, as unconstitutional.

As a matter of fact, both the Central and state governments authorities have been made to empower for enacting preventive detention laws. First Special National Laws that apply in non-emergency situations such as preventive detention law of the past. Second, area specific central laws enacted by central government, these laws are applied to select areas to deal with insurgencies and militancy. Third, special Laws enacted by the state governments to deal with public and organised crime.24

22 Available at: http://www.gktoday.in/article-22-and-preventive-detention-in-india/ (visited on 5th Jun 2015) 23 A.I.R. 1973 S.C. 1425 24 U.K. Singh, the state, democracy and Anti-terrorism Laws in India, 2007, P16

84



Soon after the enactment of constitution, Parliament passed the first Preventive detention Act, 1950, which was brought into force within weeks of adopting the Constitution.25

The validity of the Act was challenged in the Supreme Court in the A.K. GOPALAN V/S STATE OF MADRAS26. The court held this Act constitutionally valid except some provisions. Although this law lapsed in 1969 yet before it expired, it was amended for seven times, each expansion was to make it valid for 3 more years and thus extended till 31st december1969.

In 1971 an amended of Preventive Detention Act, The Maintenance of Internal security Act (MISA) was passed. It brought back many of its provisions of Preventive Detention and repealed in 1977.27 Then in 1980, Parliament enacted the National security Act (NSA), 1980 which continues to be in force today, retain some of the PDA and MISA provisions and allows preventive detention for a maximum period of 1year.28

Parliament also enacted the conservation of foreign exchange and Prevention of Smuggling Activities Act1974 (COFEPOSA)29

The Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 198030 all of which reflected

25 The preventive detention Act, 1950 authorised detention for up to 12 month to prevent a person from acting in a manner prejudice to the defence or security of India; India’s relations with foreign powers, state security or maintenance of public order, or maintenance of essential supplies and services 26 AIR 1950 SC50 27 supra N 8, P 3312 28 Section13of the National Security Act, 1980, although this provision also provides that the appropriate government may modify this period. 29 COFEPOSA sought to plug violations of foreign exchange regulation and smuggling activities which had adverse effect on the national economy by authorizing Preventive Detention of persons suspected of smuggling the abetting or dealing with or connect with smuggling of goods (see conservation of foreign exchange and Prevention of Smuggling Activities Act, 1973 30 similar to other Preventive Detention Legislations, PBMSECA also authorizes the executive to pass detention orders against persons, dealing with black-marketing and Hoarding of essential commodities (see Preventive of Black Marketing and Maintenance of supplies of essential commodities, Act, 1980

85



realities of economic hardships or separatist challenges to the authority of parliament.

National Laws

Armed forces Special power Act (AFSPA)

Armed Forces Special Powers Act31 was first passed by the parliament of India in 1958 to apply to North East of the Country but later extended to Punjab(1983)32 and Jammu & Kashmir(1990).It however, remained in force for over five decades.33

The AFSPA allows the government to define, at its discretion (the Act’s language is deliberately vague) and without judicial review, an area as ‘’disturbed’’ and empowers the armed forces to shoot, kill, conduct warrantless searches and arrests, arbitrarily detain people and demolish structures in order to “maintain the public order’’.34

Unlawful Activities Prevention Act (UAPA), 1967

This law accords the central government the power to declare “any association that engage in activities that support any secession claims” or disclaims, questions, disrupts” the Sovereignty and territorial integrity of India. This was amended twice in 2004 and 2008 to include counterterrorism provisions some of which were contained in previous anti-terror laws, namely The Terrorist And Disruptive Activities Act, 1987 (TADA) and the Prevention of Terrorism Act,2002 (POTA)35

Terrorist and Disruptive Activities Act, 1987 (TADA)

This law granted broad ranging powers to law enforcement agencies that went well beyond those prescribed under the code of

31 Armed Forces (special powers) ordinance, 1942 32 Act now no longer applies to Punjab 33 supra N 18 34 Ibid 35 Dr. Surat Singh, Law relating to prevention of Terrorism, 2003, P60

86



Criminal Procedure and the Indian Evidence Act. There was a huge misuse of the TADA and it was allowed to lapse in 1995.36

Prevention of terrorism Act, 2002 (POTA)

After an attack on Indian Parliament in December2001, the Prevention of Terrorism Act was brought in to force in 2002. The enforcement outcome of this law were also strikingly similar to that of TADA, hence many of the arrests under the POTA were conducted in minorities, Dalits and tribal were used as a tool to harass political opponents. It was repealed in 2004.37

The National Security Act, 1980

It came on the statute book as “the National security (Amendment) Act, 1980(65 of 1980) Amended so many times.38

The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974

To Prevent Smuggling of goods into or out of India and to check diversion of Foreign exchange from official channels, various measures taken by the government from time to time had been under the constant review. This Act was amended in 1975, 1976, 1987, 1988, 1990, 1993, and 1996 respectively39

The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988

It was brought in to form to deal with the persons engaged in illicit traffic of drugs and psychotropic substances within the country. It was amended in 1990, 1993 and 1996.40

36 Terrorist and Disruptive Activities Act, 1987 (TADA) 37 Prevention of Terrorism Act, 2002(POTA) 38 Preventive Detention Laws, Bare Acts, 2014, universal Law publishing co. Pvt. Ltd, New Delhi, P 1-2 39 id at 12-13 40 id at 26-27

87



The prevention of Black Marketing and Maintenance of supplies of Essential Commodities Act, 1980

The essential Commodities Act of 1955, containing comprehensive provisions for the regulation of production, supply, distribution, prices and trade and commerce in commodities was found not adequate to deal with effectively with malpractices like black marketing, hoarding, profiteering etc. In order to deal with such malpractices and to arrest the unjustified rise in price of essential commodities, the prevention of black marketing and Maintenance of Supplies of Essential Commodities Ordinance, 1979 was promulgated on 5th October 1979.41

State Laws

Mharashtra Control of Organised Crimes Act, 1999 (MCOCA)

It is applicable in the state of Maharastra and Delhi.42 This law retains several provisions found in the erstwhile TADA. Significant among are provisions that allows confessions made in police custody to be used as evidence. This is demonstrated in investigative reports and practice that has shown rampant misuse of the MCOCA with confessions made in police custody being eventually retracted and no proper investigations in cases filed.43

Jammu and Kashmir Public Safety Act, (JKPSA) 1978

It empowers the state to restrict movement to certain areas by declaring it to be a “prohibited place” or a “protected area”, and to maintain communal and regional harmony by prohibiting the circulation of the document prejudicial and detaining persons to prevent them from acting in prejudicial to the “security of the state” or “the maintenance of public order”.44

41 id at 37-38 42 Another similar law” karnatka control of organised crimes Act”, was enacted. 43 Available at:http://www.tehelka.com/channels/mcoca (visited on 9th Jun2015) 44 Hashmi S.J; and Kashmir Public safety Act, 1978, May2007; www.counter current.org

88



Chhatishgarh Special Public Safety Act, 2005 (CSPSA)

This law also empowers the state government to declare an organisation as being unlawful, criminalization as being unlawful, criminalize membership thereof and notify a place as being used for the purpose of unlawful activities. There is limited scope for review and appeal against notification of places under this law.45

Rights provided for a detenu

No detention beyond 3 months. Sub clause (a) of clause (4) of the Article 22 provides that a law providing preventive detention shall not authorize the detention of a person for a longer period than three months.46

First part of Article 22(5) gives a right to the detained person to be furnished with the ground on which the order has been made.47 Sub section (3) of section3 of the COFEPOSA Act1974 provides that the ground of detention should be communicated to the detenu within 5 days and in exceptional cases 15 days.48 Section 8 of the National Security Act, 1980 requires the detaining officer to communicate to the detenu the grounds on which the order of detention has been made promptly.49

Second part of Article 22(5) provides that earliest opportunity of making a representation against the order of detention should be given to the detenu.50

Section 8 of Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act is also providing that the detenu shall have the right of making a representation to the appropriate government.51

45 Chhatishgarh Special public Safety Act, 2005 46 H.M. Seervai, “Constitutional Law of India, 4th ed. Vol.2, 2014, P 1089 47 Supra N 45, P 1090 48 Supra N 39 49 Universal’s Encyclopaedia of Important Central Acts &Rules, 4th ed. Vol.16, 2008, P 16.696 50 Supra N 46 51 Supra N 47

89



Exceptions to These Rights

Period of detention can be extended more than 3 months if before that Advisory board is of the opinion that there is sufficient cause for such further detention.52

Section 8 of the COFEPOSA Act, 1974 as Amended Act of 1984, says Advisory board is to state its opinion not merely whether detention is necessary but whether ‘continued’ detention is necessary.53

Clause (6) is an exception to clause (5) of Article 22 It says that those facts to which the detaining authority considers to be against public interest to disclose, those facts will not be disclosed to the detenu.54

Section 10(3) of Preventive detention Act1950 excluded the right to appear in person or by any lawyer before the Advisory Board.55

Section8 (e) of the COFEPOSA Act.1974 says that detenu shall not be entitled to appear by any legal practitioner in any matter connected with the reference to the Advisory Board.56

Judicial Role

While Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law, Article 22(1) and 22(2) provides protection against arrest and detention in certain cases, Article 22 (3) provides for preventive detention as an exception to Article 21 and 22(1) and 22(2).

Article 22(1) of the constitution makes it a fundamental right of a person detained to consult and be defended by a lawyer of his choice. But Article 22(3) specifically excludes the applicability of clause (1) of Article 22 to the cases of preventive detention.

52 Supra N 45 53 Supra N 39 54 Supra N 22 55 section of Preventive detention Act1950 56 Supra N 39

90



In A.K. Gopalan v/s state of Madras57 it was contended that Article 22 is a self-contained code, and therefore, a law of preventive detention does not have to satisfy the requirements of Article 14, 19 and 21

In Khudiram Das v/s state of west Bengal and others,58 a four judge bench of the court held that although a preventive detention law may pass the test of Article 22 yet it has to satisfy the requirements of other fundamental rights such as Article 14,19and 21, while dealing with the constitutional validity of MISA

In Haradhan Saha’s59 case, the bench said, “The observation in Saha’s case not debar the authorities from passing a detention order under a preventive detention law.“It follows that if a person is liable to be tried, or is actually being tried, for a criminal offence, but the ordinary criminal law (IPC or other penal statutes) will not be able to deal with the situation, then, and only then, can the preventive detention law be taken recourse to.

In Sunil Fulchand shah v/s union of India60, chief justice Dr. A.S. Anand speaking for the majority noted that personal liberty is one of the most cherished freedoms, perhaps more important than the other freedom guaranteed under the constitution. It was for this reason that founding fathers enacted the safeguards in Article 22 in the constitution. So as to limit the power of the state to detain a person without trial, which may otherwise pass the test of Article 21 by humanizing the harsh authority over individual liberty.Since it is a precautionary state’s action, intended to prevent a person from indulging in a conduct, injurious to the state and maintenance of public order. The restrictions placed on a person to preventively detaine must be minimal.

57 (1950) SCC 88 58 (1975) 2SCC 81 59 (1975) 3SCC 198 60 (2000) 3SCC 409

91



In Dropti Devi & ANR.V/S Union of India & ORS61 it was held by the court on the touchstone of constitutional jurisprudence, as reflected by Article 22 read with Article 14,19and 21, that there is no constitutional mandate that preventive detention cannot exists for an act where such act is not a criminal offence and does not provide for punishment which is an illegal activity, the law can provide for the preventive detention if such act is prejudicial to the state security.

Conclusion

Laws of preventive detention cannot, by backdoor, introduce procedural measures of a punitive kind. Detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community. It is neither fair nor just that the detenu should have to suffer detention in ‘such place’ as the government may specify. So long as the preventive detention law is made within legislative entry and does not violate any of the conditions or restrictions on that power, such law cannot be struck down on the specious ground that it is circulated to interfere with the liberties of the people. One cannot therefore, contend that preventive detention is basically impermissible under the Indian Constitution. Though it is now well settled that the right in part iii of the constitution are not mutually exclusive and therefore, a law of preventive detention under Article22 must also satisfy Arts.14, 19 and21, it is also equally settled that a law of preventive detention cannot be held unconstitutional for the reason that it violates Arts 14, 19, 21 and 22.The constitutional philosophy of personal liberty is an idealistic view. The curtailment of liberty for reasons of states, security, public order, disruption of national economic discipline, etc. is envisaged as a necessary evil administered under strict constitutional restrictions.

The state must compensate the acquitted detenu in lieu of the losses in terms of the life , health, income, relations, social status and profession etc. etc. 61 (2012) 6S.C.R.307

92



There should be a mechanism to ensure that all the rights provided by the constitution of India are made available all the time to the detenu during the period of detention.

Allegations of the abusive conduct should be taken seriously and there should be investigation by competent authority.

There should be an independent body of law to look after these cases.

93



INHERITANCE RIGHTS OF PREFERENTIAL HEIRS OF A MALE HINDU DYING INTESTATE: A GLIMPSE OF

ANOMALIES

Priyanka Goswami*1

1. Introduction

A person, so long as he is alive, is free to deal with his property in any way he likes. He is, by making a Will, free to lay down his own scheme of distribution of his property after his death. This is known as a testamentary disposition. If he dies without leaving a valid Will, it is for the purpose of law of inheritance to determine the persons who will take his property. The law of inheritance consists of rules which determine the mode of devolution of the property of the deceased Hindu on heirs solely on the basis of their relationships to the deceased. Succession opens at the time of the death of the person whose property is in question and is governed by the law in force at the time. The Hindu Succession Act, 1956 regulates the succession after its coming into force i.e., 17th June 1956. A person who dies without making a valid Will is known as intestate. Heir is a person who is entitled to inherit property after the death of the intestate.

2. Law of succession to a male Hindu

The law of succession to the property of a male Hindu under the Hindu Succession Act, 1956 is contained in Sections 8 to 13. Section 8 of HSA reads as under:

“8. General rules of succession in the case of males The property of a male Hindu dying intestate shall devolve according to the provisions of chapter II-

(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in Class II of the Schedule; *Research Scholar in Law, J.N.V. University, Jodhpur

94



(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.”

The heirs in Class I of the Schedule are often described as preferential heirs for the sake of convenience. They succeed simultaneously under Section 9.

2.1 Wrong title of Section 8: The title “general rules of succession in the case of males”, given to the section connotes that Section 8 contains all those rules of succession which are generally applied to males. Section 8 only enumerates four classes of heirs, namely, Class I heirs, Class II heirs, agnates, and cognates to a male deceased Hindu and the order of those heirs and no other rules. Therefore, the title to Section 8 is wrong. It is submitted that the proper title of Section 8 would have been “Heirs of a male intestate”.

2.2 Dying intestate: Section 8 applies where the deceased dies intestate. A question arises whether the expression “dying intestate” applies if the intestate dies after the commencement of HSA or it applies to the intestate who had died before HSA. In a similar problem the Privy Council, in Lala Duni Chand v. Anar kali,2 while interpreting the expression ‘dying intestate’ in the Hindu Inheritance (Amendment) Act, 1929, held that the expression “dying intestate” has no reference to the time of the death of propositus and it simply needs ‘intestacy of the deceased’. The Supreme Court, in Fateh Bibi v. Charan Dass,3 approved the decision of the Privy Council in the aforesaid case.

3. Class I heirs of Schedule

There were originally 12 Class I heirs. Four of the heirs in Class II were raised to Class I by the Hindu Succession (Amendment) Act, 2005. Now, Class I of the Schedule enumerates 16 heirs. The 16 relatives of the deceased are, (1) son (S), (2) daughter (D), (3) widow (W), (4)

2 AIR 1946 PC 173 3 AIR 1970 SC 789

95



mother (M), (5) son of a predeceased son (SS), (6) daughter of a predeceased son (SD), (7) son of a predeceased daughter (DS), (8) daughter of a predeceased daughter (DD), (9) widow of a predeceased son (SW), (10) son of a predeceased son of a predeceased son (SSS), (11) daughter of a predeceased son of a predeceased son (SSD), (12) widow of a predeceased son of a predeceased son (SSW), (13) son of a predeceased daughter of a predeceased daughter (DDS), (14) daughter of a predeceased daughter of a predeceased daughter (DDD), (15) daughter of a predeceased son of a predeceased daughter (DSD), and (16) daughter of a predeceased daughter of a predeceased son (SDD). To comprehend properly these 16 heirs of Class I, they are shown in the following diagram:

The Delhi High Court, in Gaurava Sikri v. Kaushalya Sikri,4 held that in properties which are not joint family properties left by the grand-father, the grand sons will not have any share during the life time of the son, i.e., their father; the reason being, in Class I of the Schedule only a son of a predeceased son has been shown as an heir.

4. AIR 2008 Del 40 ; M. Susseelamma v. Chief Controlling Revenue Authority, Chennai, AIR

2014 Mad 43

96



3.1 Legitimacy of children of void and voidable marriages: Children born without a marriage between their progenitors or born of an invalid marriage of their parents are called illegitimate. An illegitimate child is not entitled to inherit.5 Legitimacy is purely a matter of law. Section 16 of the Hindu Marriage Act, 1955 (HMA) confers legitimacy on the children of void and voidable marriages otherwise treated as illegitimate. Before the amendment by the Marriage Laws (Amendment) Act, 1976, the children of void marriage could get legitimacy only if a decree of nullity was obtained under Section 11 of HMA. If their parents did not obtain the decree or died before getting the decree, the children could not become legitimate. Even if the marriage was held void in any proceeding other than one under Section 11 of HMA, the children could not get the benefit of the legitimacy. Now, after the amendment in 1976 a child of a marriage which is void under Section 11, is legitimate notwithstanding the fact that; (i) the marriage was solemnized before 1976 or (ii) a decree of nullity is granted in respect of that marriage under HMA, or (iii) the marriage is held void otherwise than in a petition under HMA. As the child is legitimate, he is entitled to succeed to the property of his father under Section 8 of HSA read with Schedule I thereof.

If a marriage is voidable but neither party has got it avoided, it becomes a valid marriage. Therefore, the children of this marriage are legitimate. But if a decree of nullity is granted under Section 12 of HMA in respect of a voidable marriage, the children are not rendered illegitimate. Section 16 (2) of HMA provides that the children of a voidable marriage even on the passing of a decree of nullity are legitimate as if the marriage was dissolved by a decree of divorce.

3.2 Proprietary rights of children of void and voidable marriages: According to Section 16 (3) the children of void and voidable marriages who are made legitimate get rights to the property of their parents only. However, such children cannot claim any right in or to the property of any person other than the parents. It does not lay

5 . Daddo v. Raghunath, AIR 1979 Bom 176

97



down that conversely, persons other than the parents cannot claim any right in or to the property of children who are to be regarded the legitimate children of their parents and hence, a necessary inference has to be drawn. Section 16 (3) read as a whole seems to indicate the converse rule that no persons other than the parents can claim any right in or to the property of such children by virtue of the rule laid down in Section 16. It is submitted that Section 16 (3) might have been more explicitly worded. The Supreme Court, in Rameshwari Devi v. State of Bihar,6 held that where a man married a second wife during the life time of the first wife and had children from both wives, the second marriage is void. On his death, the second widow is not entitled to any benefit of family pension and death-cum retirement gratuity. But the children from the second marriage are entitled to such benefits under Section 16 (3) of HMA, as much as, those from the first wife. The Supreme Court, in Jinia Keotin v. Kumar Sitaram Manjhi,7 held that it is only the separate property of the parents that an illegitimate child can claim and such child cannot succeed to coparcenary property in which the father has a share and the court did not accept the argument that the Section was widely worded so as to include all property – self acquired and coparcenary property. Further, the Supreme Court, in Bharatha Matha v. R. Vijaya Renganathan,8 held that the children legitimized are entitled to share the self-acquired property of parents under Section 8 of HSA but not the ancestral property or the coparcenary property. The issue again came up for consideration of the Supreme Court, in Revansiddappa v. Mallikarjun9 and the Supreme Court disagreeing with its earlier decisions held that the legislature has used the word “property” in Section 16 (3) and is silent on whether such property is meant to be ancestral or self-acquired and has not qualified it with either self-acquired or ancestral property. Therefore, such children will have a right to whatever becomes the property of their parents, whether self-acquired or ancestral. Therefore, the

6 (2000) 2 SCC 431 7 . (2003) 1 SCC 730 8 . AIR 2010 SC 2685 9 . (2011) 11 SCC 1

98



Supreme Court referred the matter for reconsideration by a Larger Bench.

3.3 Son (S), son’s son (SS), and son’s son’s son(SSS): Son includes legitimate son, and an adopted son, a posthumous son and a separated son but does not include a step son or an illegitimate son. Step son means a male child of wife born to her before her marriage with the propositus.

3.4 Ghar Jamai: Among the Santhals, Ghar jamai has the status of a son. He is like an adopted son for all intents and purposes. The Patna High Court, in Ashok v. Rani Hembrom,10 held that a Ghar jamai is entitled to succeed to his father-in-law’s property like an adopted son.

The above meaning of ‘son’ (S) applies mutatis mutandis to the son of a predeceased son (SS) and to the son of a predeceased son of a predeceased son (SSS). However, grandson (SS) or great grandson (SSS) will not succeed if the marriage of their father was void or annulled.

3.5 Daughter (D), Son’s daughter (SD), Son’s son’s daughter (SSD): Daughter includes a daughter- married, unmarried or widow. The principles applicable to a son apply also equally to the daughter. The daughter, therefore, includes an adopted daughter and a posthumous daughter but not a step daughter or an illegitimate daughter. But a daughter born of a void marriage and an annulled voidable marriage is legitimate in view of Section 16 of HMA as amended in 1976.

The above meaning of ‘daughter’ (D) applies to son’s daughter (SD) and son’s son’s daughter (SSD) mutatis mutandis. The son’s daughter (SD) and son’s son’s daughter (SSD) are not entitled to inherit the property when marriage of their father is void or voidable as in the case of grandsons (SS) and great grandsons (SSS).

10 AIR 1988 Pat 129

99



3.6 Daughter’s son(DS), daughter’s daughter(DD), daughter’s daughter’s son (DDS), daughter’s daughter’s daughter (DDD): Both natural born and adopted children of a predeceased daughter are included. Illegitimate daughters and sons of a daughter are also included by virtue of proviso to Section 3 (1)(j) defining the expression ‘related’ as laid down below. This principle applies to other heirs mentioned here. Section 3(1)(j) runs:

“ ‘Related’ means related by legitimate kinship:

Provided that illegitimate children shall be deemed to be related to their mother and to one another, and their legitimate descendants shall be deemed to be related to them and to one another; and any word expressing relationship or denoting a relative shall be construed accordingly.”

3.7 Widow (W), son’s widow (SW), son’s son’s widow (SSW): In order to entitle a widow to be an heir, there must have been a valid marriage between her and the deceased. When the marriage is void or voidable, the widow cannot claim to be an heir. Section 16 HMA does not confer the status of a wife or husband of void or voidable marriage on the parents. Where a marriage is dissolved by a decree of divorce, she becomes a divorcee and does not become a widow on the death of her divorced husband. Unchastity does not deprive the widow of her right of inheritance. In Laxmi Bai v. Anusuya,11 the first wife had abandoned her husband and was living with another man. The husband had not obtained a decree of divorce prior to his second marriage. The first wife was entitled to succeed to his property. The same principle applies mutatis mutandis to son’s widow (SW) and son’s son’s widow (SSW).

3.8 Legal Status of persons in live-in relationship: The Supreme Court, in case of Dhannulal v. Ganeshram12 held that when two persons who indisputably have been in live-in relationship as husband and wife are treated as a married couple unless proved contrary. 11 . AIR 2013 Kant 24 12 . AIR 2015 SC 2382; Bharatha Matha v. R. Vijaya Renganathan, AIR 2010 SC 2685

100



3.9 Mother (M): Mother is always a mother. Propositus may be her legitimate natural son or adopted son or an illegitimate son, she will inherit. Unchastity of mother does not deprive her to inherit. She is also not divested of the estate inherited by her from her son, on her subsequent unchastity. Mother remains a mother even she has been divorced. Mother does not include stepmother.13 According to proviso to Section 3(1)(j) the mother is entitled to inherit from her illegitimate son.

3.10 Class II heirs of Schedule: There are 23 relatives in Class II of the Schedule. They are sub-divided into 9 categories as follows:

Entry I. Father (F)

Entry II. (1) Son’s daughter’s son (SDS),

(2) Son’s daughter’s daughter (SDD) (included in Class I by the Hindu Succession (Amendment) Act, 2005)

(3) Brother, and

(4) Sister

Entry III. (1) Daughter’s son’s son (DSS),

(2) Daughter’s son’s daughter (DSD) (included in Class I by the Hindu Succession (Amendment) Act, 2005),

(3) Daughter’s daughter’s son (DDS) (included in Class I by the Hindu Succession (Amendment) Act, 2005), and

(4) Daughter’s daughter’s daughter (DDD) (included in Class I by the Hindu Succession (Amendment) Act, 2005)

Entry IV. (1) Brother’s son (BS),

(2) Sister’s son (Sis S),

(3) Brother’s daughter (BD), and

(4) Sister’s daughter (Sis D)

Entry V. Father’s father (FF); Father’s mother (FM)

Entry VI. Father’s widow (FW); Brother’s widow (BW)

13 . Satyanarain v. Rameshwar, AIR 1982 Pat 44

101



Entry VII. Father’s brother (FB); Father’s sister (F Sis)

Entry VIII. Mother’s father (MF); Mother’s mother (MM)

Entry IX. Mother’s brother (MB); Mother’s sister (M Sis)

Explanation- In this Schedule, references to a brother or sister do not include references to brother or sister by uterine blood.

3.11 Agnate: Section 3(1)(a) HSA defines agnate: “one person is said to be an ‘agnate’ of another if the two are related by blood or adoption wholly through males.” When a person traces his relationship with another wholly through males, he or she is an agnate. In between him or her and the common ancestor or ancestress, all persons through whom the relationship is traced should be males. The sex of the person who traces the relationship with another is immaterial.

3.12 Cognate: Section 3(1)(c) defines cognate: “one person is said to be a ‘cognate’ of another if the two are related by blood or adoption but not wholly through males.”

3.13 Extension of Class I heirs: The following 4 more heirs are added to Class I heirs by the Hindu Succession (Amendment) Act, 2005.

1. son of a predeceased daughter of predeceased daughter (DDS);

2. daughter of a predeceased daughter of predeceased daughter (DDD);

3. daughter of a predeceased son of a predeceased daughter(DSD); and

4. daughter of a predeceased daughter of a predeceased son (SDD).

4. Anomalies in Class I heirs or Preferential heirs: The following are the glaring anomalies with regard to Class I heirs or preferential heirs:

(1) A perusal of heirs in Class I and II reveals that the mother is placed in Class I of the Schedule while the father is placed in Class II, Entry I. It is submitted that relegating the father to Class II is devoid of any justification or logic, and father is not given the treatment he deserves. He gets place after, as many as, 16 relations extending up to 4th degree of descent. It is no denying the fact that both the parents

102



mother and father render the services in bringing up their child and building his career. Besides this, a son is under an obligation to maintain his aged or infirm father in terms of Section 20 of the Hindu Adoptions and Maintenance Act, 1956. Even after the Hindu Succession (Amendment) Act, 2005, the father continues to be neglected. Only mother has been recognized here as Class I heir. It is unfortunate that the father should not find a place equal to that of the mother. No person is sentimentally more attached to his relatives in the 4th degree than to his father. Therefore, father deserves to be placed in Class I of the heirs so as to place mother and father at equal status. There is no rationale in giving preference to the mother. The Andhra Pradesh High Court, in Leela Prasad v. Bhavani,14 observed that there is an anomaly in including mother in Class I but not the father. Thus, on the death of a son dying intestate leaving behind father and mother, the mother will inherit son’s property but his father will be deprived of his right to get the share in the property and suggested an amendment to this effect. It is unfortunate that the father still lingers in Class II even after the Hindu Succession (Amendment) Act, 2005.

(2)The aforesaid four added heirs in Class I still find place in Class II as indicated below as they have not been deleted from Class II by the Amendment Act, 2005

Class II Entry II Item (2) - son’s daughter’s daughter (SDD)

Class II Entry III Item (2) - daughter’s son’s daughter (DSD)

Class II Entry III Item (3) - daughter’s daughter’s son (DDS)

Class II Entry III Item (4) - daughter’s daughter’s daughter (DDD)

It may be pertinent to state that the word “predeceased” has not been used in Class II as in Class I, nevertheless the relationship of the above heirs in Class II connotes the predeceased relationship, for example, son’s daughter’s daughter means daughter of predeceased daughter of predeceased son. An heir cannot find place simultaneously in Class I and Class II. Because the heir in Class I is a preferential heir, 14 . 1995 (1) Andhra Law Times 814

103



such heir in Class I will inherit the property of an intestate, the question of inheriting property by that heir in the capacity of Class II heir does not arise. The draftsmen of the Amendment Act, 2005 lost sight of the above situation and did not delete, the four heirs referred to above added to Class I by the Amendment Act, 2005, from Class II.

(3) Prior to the Hindu Succession (Amendment) Act, 2005, the branches of the predeceased son of a predeceased son of the intestate (SSS), (SSD), were placed in Class I but the branches of the predeceased daughter of the predeceased son (SDS), (SDD) were not so placed in Class I and remained placed in Class II entry II of the Schedule: (1) son’s daughter’s son, (SDS) (2) son’s daughter’s daughter (SDD). The Hindu Succession (Amendment) Act, 2005 recognized the daughter of the predeceased daughter of the predeceased son (SDD) of the intestate as an heir but did not recognize her brother, son of a predeceased daughter of a predeceased son (SDS). It is submitted that this is gender injustice to male (SDS).

(4) Further, prior to HSA amendment in 2005 the branches of the predeceased son of the predeceased daughter (DSS,DSD) and the branches of predeceased daughter of the predeceased daughter (DDS,DDD) had no place in Class I. They were placed in Class II entry III Nos. (2),(3) and (4). The Hindu Succession (Amendment) Act, 2005 placed both the branches of the predeceased daughter of the predeceased daughter through her son and daughter, namely, DDS and DDD in Class I but placed only one branch of the predeceased son of the predeceased daughter, namely, the daughter of the predeceased son of the predeceased daughter (DSD) in Class I but did not recognize her brother, the son of the predeceased son of the predeceased daughter (DSS) by not giving inheritance to him. It is submitted that again this is gender injustice to male (DSS).

While inserting a rule by an amendment, the Parliament may also recognize right of inheritance of son of predeceased daughter of a predeceased son (SDS) and the son of the predeceased son of the predeceased daughter (DSS) in the same branch to remove the

104



anomalies causing injustice to both these males referred to above under (3) and (4).

5. Conclusion

As envisaged in section 8 of the Hindu Succession Act, 1956, there are 4 classes of heirs of a Hindu male dying intestate, namely, Class I, Class II, agnates and cognates. Class I heirs are known as preferential heirs because in the presence of whom no heir of any other class can inherit the property of the intestate. It is suggested that Parliament may remove the anomalies pointed out in 4 supra by amending Class I and II of the schedule. Necessary amendments may also be made to change the title of Section 8 of Hindu Succession Act, 1956 as “Heirs of a male intestate” in place of “general rules of succession in case of males”, as the Section 8 enumerates only classes of heirs and does not lay down general rules of succession.

References:

Agarwal, R. K., 2011: Hindu Law. Allahabad: Central Agency

Das, P. K., 2007: Universal’s Handbook on Hindu Succession-Property Rights of Women & Daughters. New Delhi: Universal Law Publishing Company

Desai, S.A., 2014: Mulla Hindu Law. Nagpur: Lexix Nexis Butterworth Wadhwa, 21st Edition

Diwan, Paras, 2013: Modern Hindu Law: Faridabad (Haryana) : Allahabad Law Agency, 22nd Edition

Kader, S.A., 2014:The Hindu Succession Act, 1956, Kolkata: Eastern Law Agency, 2nd Edition

Mahmood, T., 2014: Principles of Hindu Law. New Delhi: Universal Publishing Co. Pvt. Ltd.

Malik, 2014: Commentary on The Hindu Succession Act, 1956, Delhi: Delhi Law House, 3rd Edition

Nagpal, R.C., 2011: Modern Hindu Law. Lucknow: Eastern Book Company

105



THE CUSTODY OF CHILD : A CONTROVERSIAL, COMPLICATED AND CONFLICTING ISSUE UNDER INDIAN

LAW

Khilari Ram Meena

Child is the unique unparalled and invaluable gift of God, given to human beings, who need special attention, care, and caution for their existences as well as for their overall development. The first duty toward the child is that of his or her parents as well as of the State to pay special attention for their blooming into a full flower of the society because slight negligence’s or apathy towards a child may spoil his or her health, safety, body, mind, character and personality. One may get daily examples in the newspapers of local, national and international level, where a new born child is thrown in the heap of rubbish, in thorny bush, in isolated places as well as in the hospitals and fields, rivers, canals, ponds and seas.

Not only this but also one may get so many examples everyday where the children have been deserted by their nears and dears as well as by parents and further exploited by them. Hence, a question arises that since their parents have left their custody, now in whose custody such children should remain. The obvious answer is that the State is guardian of such children.

In this regard in India several legislations have been enacted by the Indian legislature to deal with the different dimension of the child custody in the changing scenario of the society. Apart from the Hindu Marriage Act, 1955, Hindu Guardianship and Ward Act, 1956, Hindu Adoption Maintenance Act, 1956 and even under Muslim Law, Christian Law, Criminal Law also, different provisions exists to deal with the custody of the children.

But it is sorry to point out the term ‘Custody’ has not been defined under any legislation. However, in Todd v. Davison,1 it was

LL.M. and Research Scholar, Jai Narain Vyas University, Jodhpur. 1 (1971) 1 All ER. 995.

106



defined as that the word ‘custody’ should be interpreted as meaning factual rather than legal custody. Similarly in Robertson v. Walton,2 the court held that to claim child relief, one should have factual custody thrust upon him since child relief is not an award for status but a deduction for presumed or proven responsibilities.

Speaking generally the word ‘custody’ in the Cr.P.C. always means judicial custody, save only where the context clearly indicates either that it is police custody or that the Magistrate has been given statutory authority to decide what the custody shall be. Custody referred to in Section 337(3), Cr.P.C. must be taken to be jail or judicial custody and not police custody.3

So, custody relates to the possession or control of the certificates as physical objects as per Swiss Bank Corporation v. Lloyds Bank Ltd4 rule.

Thus, ‘Custody’ means the actual, physical or corporeal holding of a document regardless of the right to its possession, for example, a holding of a document by a party as servant or agent of the true owner.5

When a person is in duress either because he is held by the investigating agency or other Police or allied authority or is under the control of the court having been remanded by Judicial Orders, or having offered himself to the courts jurisdiction and submitted to its orders by physical presence, then the word is of elastic semantics, but its core meaning is that the law has taken control of the person.6

In the same way it can be said that the word ‘custody’ in Section 27 Evidence Act, 1872 does not mean formal custody. An accused is in police custody when he is under surveillance of the police and cannot break away from the company of the police officer and get away.7 The interpretation of the word ‘custody’ in various decisions has proceeded 2 (1977) All ER 465. 3 ILR (1943) All 289. 4 (1980)2 All ER 419, 431 (CA). 5 B. v. B., (1979) 1 All ER 801, 805 (Famd.) 6 Niranjan singh v. Prabakar Rajaram Kharote, AIR 1980 SC 785, 787. 7 Chhotay Lal v. State of Uttar Pradesh, AIR 1954 All 687, 688.

107



in so far as to suggest that police ‘custody’ in the term of Section 27 might well include surveillance, interrogation before arrest etc. where a person submits himself to the custody of a police officer, with the consciousness that temporarily at least he is in such custody, or such control, whether formerly authorised in some manner or otherwise.8

Thus, the word ‘custody’ denotes rights and duties in relation to an infant regarded as an indivisible whole, that it to say, the change of the infant’s person coupled with the right to determine the manner of the infant’s upbringing.9

Different dimensions of law relating to child custody may be summarised in the following manner, Child custody is one of the ancillary issues that arise when spouses litigate in court. They are the worst affected when parents fall out and are, not unoften, used as pawns. There are provisions in all matrimonial laws to make interim order in regard to custody, maintenance and education of minor children while matrimonial proceedings are pending in the court, such orders can also be made after the proceedings are over the decree in matrimonial case passed (Special Marriage Act, Section 8, Hindu Marriage Act, Section 26, Paris Marriage and Divorce Act, Section 49, Divorce Act, Section 41 to 44) Orders under these sections are not final and a decree passed thereunder is always subject to modification.10

Apart from provisions in the matrimonial statutes, there is the Guardians and Wards Act, 1890 which is a secular law for appointment and declaration of guardians and allied issues, and is applicable to all, irrespective of religion. In the case of Hindus Minority and Guardianship Act, 1956 has nothing to do with any matrimonial proceedings.

Under the Muslim law, the father has a more dominant position in respect of custody and guardianship of children. Under the Hanafi law, mother is entitled to custody of her son till he reaches age of seven

8 In Re Ramachandran, AIR 1960 Mad 191, 194. 9 Re W. (J.C.) An Infant, (1963) 2 All ER 706, 710 (Ch.D.). 10 Bimlesh Kumar v. Dipa Chaterjee, (2001) 8 SCC 5.

108



and daughter till she attain puberty; in Shia law mother’s custody, i.e., hizanat extends in case of a son until he is two years and daughter till the age of seven.11

In Webb v Webb,12 it was held that the child in relation to whose custody the order is made must be a child of the marriage of persons who are in fact the parents of the child. It was further held that in a case where the husband was not clearly the father of the child the Court had no jurisdiction to make an order in respect of the custody of the child. In a case13 decided by the House of Lords under Section 26(1) of the Matrimonial Causes Act, 1950, where the language is somewhat similar to that in the Indian Statutes though not pari materia, it was held that the term children included illegitimate children the marriage of whose parents was the subject of the proceedings Although the word children in the statutes prima facie means legitimate children that meaning was displaced if the context in which the word children appeared, required it to embrace a wider category than that of legitimate children.

In petitions for judicial separation, nullity or divorce the Court may make provisions in the decree and/or may make orders after the decree for the custody of minor children the marriage of whose parents is the subject of the proceedings where the Court while passing decree for judicial separation in favour of wife, had also passed an order under Section 41 of the Divorce Act in respect of custody of two children in favour of wife it was held that this by itself will not deprive the husband of his right to apply to the Court under Section 25 of Guardians and Wards Act, 1890 for the custody of his son if he is more than sixteen years of age and that of his daughter if she is more than thirteen years of age.14

11 Mulla, Principles of Mohammedan Law, Seventh Edn., para 352 (1972) 12 (1952) 1 All ER 527. 13 Galloway v. Galloway (ex parte), (1955)3 All ER 429; see also Jackson (otherwise Macfarlane) v. Jackson, 1098 p. 308; Le Mesurier v. Le Mesurier, (1920) 46 TLR 203; 142 LT 496. 14 Rosy Jacob v. Jacob A. Chakramakkal, AIR 1973 SC 2090: (1973) 1 SCC 840.

109



Whatever be the legal position, the predominant consideration is always the welfare of the child (Section 13 Hindu Minority and Guardianship Act, 1956, Guardians and Wards Act, 1890). This has been reiterated umpteen number of times by the courts, including the Apex Court. As observed by the Supreme Court in Jacob v. Jacob.15

However, in this regard it can be said that the Custody of Child is a sensitive, conflicted as well as complicated issue which is not easy to decide. The obvious reason is that custody is connected with emotional attachment with the Child which sometimes involve the parents, grand father, grand mother, as well maternal uncle and aunt and sometimes also the defacto guardian because in case of a abandoned or deserted child, the defacto guardian (main/woman) sometimes develop so much emotional closeness, nearness and attachment that it becomes difficult if not impossible “for detachment”. One may get thousands and hundreds of such example where such difacto guardian proved, established themselves more dedicated than their own natural mother and father.

Under matrimonial law, for example under Hindu Marriage Act, 1955 when there is a judicial separation or divorce petition is pending in the Court, then the question of “Custody” of children becomes complicated as to whom the Court should give preference to the mother who give birth to the child or to the father, who brought up the mother or child. This is to be decided while taking into consideration the provisions of Hindu Adoption and Maintenance Act, 1956, Hindu Guardian and Ward Act, 1956, as well as Guardian and Ward Act, 1890. But in Muslim law and other matrimonial laws where there are no such statutory provisions, the question of custody child becomes a tedious one.

Lastly, in the Criminal Law specifically under Indian Penal Code 1860, the question of custody becomes a controversial issue in the offence of kidnapping and abduction under Sections 359 to 369 of the Indian Penal Code 1860 because in interpreting the issue of custody of

15 AIR 1973 SC 2090, 2100.

110



lawful guardian, there is a change of attitude of the courts which changes from time to time, and case to case. One may refer the Vardaragan v. State of Madras, AIR 1965 SC 942, State of Haryana v. Raja Ram, AIR 1973 SC 819, Harpal Singh v. State of M.P., AIR 1981 SC 361 and the hundreds of cases decided by the Supreme Court and High Courts upto 2015.

Thus, it can be said in this regard that the issue of custody of child involve so many family, religious, emotional and legal complications and thus becomes a Herculian task for the investigating as well as adjudicating authorities to give the custody of child to litigating parties. But the overall benefit of the child is of paramount consideration in this regard.

111



AN EXPLANATORY ANALYSIS OF COLLISION CONVENTION 1910, 1952 AND 1972 WITH RESPECT TO LIABILITY AND

CLAIMS

Chhote Lal Yadav*1

Introduction

Collision is question of fact which is a form of maritime peril; it is incumbent upon the defendant to the show that the case of injury was unavoidable by exercising the reasonable cause. But the question of liability and claim for the damage will arise what extent and how the claim for damages may assess loss or damages in maritime contractual obligation, this article bring an analysis in the COLREGS and its relevancy with subject matter of Liability and claims.

The vessel is a legal person in the eyes of law conduct done by vessel in any form of the navigational rules will be applying upon her. There are four international conventions which aim to prevent collisions at sea and give sailing regulations focused on reducing collision risks. They are:

The International Convention for the Unification of Certain Rules of Law with respect to Collision between Vessels, Brussels-1910.

The International Convention on Certain Rules concerning Civil Jurisdiction in Matters of Collision, 1952.

The International Convention for the Unification of Certain Rules relating to Penal Jurisdiction in Matters of Collision or Other Incidents of Navigation, 1952.

Convention on the International Regulations for Preventing Collision at Sea (COLREG), London, 1972.

There are two draft conventions, which though do not have the force of law, but are often referred for guidelines in cases of collision and such other similar incidents at sea.2They are:

*Research Associate (Maritime Law) Gujarat National Law University, Gandhinagar, Gujarat

112



The Draft International Convention for the Unification of certain Rules Concerning Civil Jurisdiction, Choice of Law and Recognition and Enforcements of Judgments in Matters of Collision, Rio de Janeiro, 1977.

The Draft Rules for the assessment of damages in Maritime Collisions (Lisbon Rules) 1988. The 1910 Collision Convention has survived for more than a century. The Travaux Preparatories of the convention indicates that the discussions for the international unification of the rules pertaining to allocation of liability in case of collision of ships were initiated in Antwerp in 1885. In 1897 CMI was officially established. The CMI then took upon itself to develop a questionnaire focusing on the liability issue in case of inevitable accidents, under compulsory pilotage, with respect to third parties and limitation periods. The questionnaire was sent to different countries and the responses collected and discussed upon to draw the convention.

In this paper I will be dealing with 1910, 1952 Collision convention and 1972 Conventions. The 1910 Convention sets out the basic framework to administer judgment in case of collision while the 1952 Civil and Penal Conventions can be seen as its two outstretched arms which help in determining the jurisdictional aspects3.

The COLREGS 1972 is describes the conduct of the vessel in any condition of visibility, in sight of one another and in restricted visibility, in case of the not applying the rule of the road given under the COLREGS 1972 may be result of the cause of collision. Collision liability are statutory or contractual which indicate the responsibility of the party under the convention it may be criminal or civil forms and person will be liable severally or Jointly those they have interest in maritime adventure they can limits the liability under the LLMC 1976.4 A possible consequences of a collision is oil pollution from a vessel

2 Ignacio Arroyo, International Maritime Convention, 2001,Volume 1, publisher Kluwer law and Taxation 3 William Tetley, Maritime law and Admirality Law, 2004, 2nd edition . 4 Steeven Hazlewood and Andrew Tettenborn, 2003, Marsdon Collision at Sea, published by Sweet& Maxwell, UK..

113



carrying a cargo of oil or form it bunkers the compensation for the victims of the oil collision is provides by international convention and there are two private industry schemes the CLC 1969, 1992, Fund 1971, 1992 which make the standards for the limitation of the liability, and two private industry schemes TOVALOP and CRISTAL. Another way collision may be happen without any fault of the vessel which are beyond the control of the person. The claim arise with respect to the life and personal injury, contrast claims in relation to cargo damage and the rules of remoteness of damages.5

Flow chart of collision and its liability

The conventions can be comprehended under three headings:

1. Convention Application

2. Determination of Basic Liabilities and Jurisdiction

3. Limitations as provided.

1. Convention Application:

There are four aspects which the conventions consider with respect to its application:

a. With respect to waters.

The 1910 Convention is applicable in all waters, that is, the territorial waters, the exclusive economic zone and the high seas. The 1952 convention on civil jurisdiction interestingly is silent about this

5 The law of the sea third edition, R.R. Churchill and A.V. Lowe

114



aspect while the 1952 Convention on Penal jurisdiction states that the inland and port waters are excluded and that a state may reserve its territorial waters.

Scope/extend of application. The scope of all three conventions extend not only to the actual collision cases but also to cases where damage was caused to another vessel or to goods or persons on board in either vessel either by the execution or non-execution of a manoeuvre or the non-observance of the regulation even if no collision had taken place.

b.With respect to vessels.

The Conventions apply in case of collision between sea-going vessels or between sea-going vessels and vessels of inland navigation. But this does not include a case where the collision is between a ship and a non-moving object. The Conventions apply directly in case of collision between vessels of different nationalities but all the flag states are contracting parties to the convention. If the vessels belong to different nationalities including a non-contracting party, convention is to apply on the basis of reciprocity. If all the vessels in a collision incident are of the same state which is a contracting party, the national law pertaining to collision supersedes the Conventions. None of the conventions are to apply to warships or vessels owned by or in the service of the State.

c.With respect to disputes.

All disputes regarding the interpretation of the convention is to be settled through arbitration unless otherwise the State parties have agreed to refer the matter to ICJ.

d.With respect to disputes.

All disputes regarding the interpretation of the convention is to be settled through arbitration unless otherwise the State parties have agreed to refer the matter to ICJ.

115



Conceptual and Statutory Liability Under The COLERGE: The Basic Liabilities:

In determining the allocation of liability in case of a collision, the 1910 Convention conceives of three cases:

1. Case 1.

Collision is accidental or is caused by force majeure or is left in doubt, the damages are borne by those who have suffered them.

Case 2

Collision occurred due to the fault of one of the vessels, and then the party at fault bears the damages.

2. Case 3

When two or more vessels are at fault the liability of each of the vessel is in proportion to the degree of faults committed.

It is in respect of Case 3 that the rule of proportional fault was introduced in place of divided damages principle (where liability was shouldered equally by the parties irrespective of the degree of faults). The damages caused to the 1) vessels, 2) the cargoes, 3) the effects or other property of the crew, passengers or other persons on board are to be borne by the vessels in proportion to their fault. In case of personal injury or death, joint and several liability principle applies though it will not prejudice the right of contribution of a vessel which has paid more than it ought to.

In this context it is informative to draw the experiences of UK and US with respect to the convention. United Kingdom adopted the 1910 convention and formed a domestic act – 1911 Maritime Convention Act – on the basis of this convention. In the domestic act, the proportional principle was applied only with respect to the damages to the vessel and cargo while party in fault principle was applied to personal injuries and death cases. The United States on the other hand never adopted the

116



1910 convention but the provisions were read into the law following the judgement in US v Reliable Transfer Co.6

The other ground rules that was laid down in the 1910 convention were:

Abolition of all legal presumptions of fault.

The right to recovery is not conditional upon any special formality being fulfilled.

Liability attaches even if collision is due to fault of a pilot under compulsory pilotage.

The Jurisdictional Aspects:

In determining the jurisdictional aspects, the 1952 Conventions on Civil and penal jurisdiction come into play. The main points are summarized in the following table:

Where to Institute

Under the case of collision at sea to the subject of the provision of the institutional authority to be have jurisdiction in the case of Collision the collision convention 1952 with respect to the nature of the case likewise penal jurisdiction and civil jurisdictions

6 Collison at Sea Marsden Combridge University Press, New York

117



3. Limitations as provided

a) Limiting Liability: the limitations of the following liabilities are to be dictated by the national laws under the 1910 Convention

Liability of the owners towards persons on board

.

Liability of the owners towards persons on board

Meaning and effect of any contract limiting Liability

Ship owner’s liability

Legal obligations arising from contract

a) Limitations with respect to time:

Actions for the recovery of damages are barred after an interval of 2 years from the date of casualty.

A time bar of one year from the date of payment is stipulated for bringing an action for enforcing the right to obtain contribution.

Interruption or suspension of the above periods of time can be done by the laws of the court where the case is tried.

States can by legislation extend the period by legislation where it has not been possible to arrest the defendant vessel.

118



bond of necessity that exists between the wrongdoer and the remedy of the wrong.4 Where the remedy is a civil one, and the wronged has the right to demand the redress allowed by law, and the wrongdoer has a duty to comply with this demand. In case of criminal remedy the wrongdoer under the duty to pay such penalty as the law though the agency of the courts prescribe.COLREGS framework liability under the statutes or contract, it may be the forms of the Criminal or Civil, an infringement of convention may be the criminal offence but it can be limit under LLMC 1976 convention.7 A ship which not comply with the regulation may be detained under the national laws. Public policy, as well as the best interest of all concerned, requires that they should be enforced in all cases in which they apply.

The contractual liability the liability of ship owners for loss or damage of goods on board his ship as a result of collision depend upon the terms of the contract of carriage. A ship-owner is subject to the liability of a common carrier at common law for loss or damage to goods while being carried by him, unless caused by the act of God, of queen enemies, or by inherent vice of goods themselves, or shipper default, usually packing. Under The bills of lading a important obligation carrier to exercise due diligence to make the ship seaworthy and to property, man, equip and supply the ship before and at the beginning of voyage liability may be excluded for loss of damage caused by the “Act, neglect or default of the master mariner pilot or the servant of the carrier in the navigation or in the management of the ship”. Hamburg Rules contants provision which are less favourable for shipowners. In order to protect himself from this anomaly, a ship owner may include in the contract of carriage a “both- to-blame” collision clause which provides in such a circumstances, the cargo owner will indemnify the carrier against the carriage liability. Under the insurance contact the

7 Aleka Manadareka Sheppard, 2008 edition, Morden Maritime Law and Risk Management, published by Informa Mortimer House London.

119



insurer will be indemnifies for all losses which are assured perils in maritime adventure.8

Conceptual and statutory claims:

Demand or recovery of loss or damages is claim under the COLREGS the loss or damage may be form of loss of life and personal injury, cargo loss or damage or remoteness of damages. Generally disputes arises the assessment of damage of partial loss or total loss of the cargo and disputes over loss of profit. The principle of ‘restitution in integrum’ “in this case the injured party would be entitled to an entire compensation from the other”. The damage ship was prevented from undertaking profitable employment as the result of collision ……..it is not follow as a matter of necessity, that anything is due for the detention of a vessel whilst under repair …onus of proving her loss rests with the [claimant].Whether the victim of a collision acts and reasonably in mitigating his loss. Whether the damage vessel would, in absence of repair was question of loss and damage. But defence of the claim also available like inevitable accident, necessity, statutory authority, act of state, consent, res judicata9

Escaping the Liability barring under the collision convention

The burden of proof lies upon the claimant to proof the liability under the statutes and common law as well the defense is also available for the defendant to proof the ground of barring liability10

Conclusion:

The Collision Convention along with its procedural counterparts is serving the maritime industry in an unprecedented way and that too almost for a century. That is commendable and in a way exciting. It just proves that the basic framework that has been laid down is strong but flexible too to have survived the tests of time. For the preventing the

8 ibid 9 Susan Hodges,Christopher Hill, 2001,Southampton on shipping Law, published by LL.P. 10 A.N.Cockcroft ,A Guide to the Collision Rules, seventh edition 2012, published by Stanford Lane, oxford New York.

120



collision if parties will follow the COLREGS rule of the road then collision simply should not occur. There should be no question of liability and claim will arises. The avoiding of collision only statutory provision are not sufficient it should be for the integrity of the shipping business there should be good seamanship which requires proper education and training, there should be effective implementation of the inspection mechanism of the essential thing of seagoing ship in international waters, there should be no claim. The Collision Convention along with its procedural counterparts is serving the maritime industry in an unprecedented way and that too almost for a century. That is commendable and in a way exciting. It just proves that the basic framework that has been laid down is strong but flexible too to have survived the tests of time.

References

1. Ignacio Arroyo, International Maritime Convention, 2001,Volume 1, publisher Kluwer law and Taxation

2.William Tetley, Maritime law and Admirality Law, 2004, 2nd edition

3. Steeven Hazlewood and Andrew Tettenborn, 2003, Marsdon Collision at Sea, published by Sweet& Maxwell, UK.?.

4.Aleka Manadareka Sheppard, 2008 edition, Morden Maritime Law and Risk Management, published by Informa Mortimer House London.

5. Norman A. Marimenez Gutierrez, 2011, Limitation of Liability in International Maritime Convention, Published by Routledge NewYork.

6. Southampton on Shipping Law, 2008, Informa Law from Routledge.

7. A.N.Cockcroft ,A Guide to the Collision Rules, seventh edition 2012, published by Stanford Lane, oxford New York.

8. Susan Hodges,Christopher Hill, 2001,Southampton on shipping Law, published by LL.P.

9. Collision at Sea, Combridge University Press, New York.

121



EUTHANASIA: RIGHT TO DEATH. SOME DEDUCTIONS FROM RELIGIOUS-ETHICAL DEBATE

Rajeev Kumar*

Euthanasia, also known as assisted suicide, physician-assisted suicide (dying), doctor-assisted dying (suicide) , and more loosely termed mercy killing, basically means to take a deliberate action with the express intention of ending a life to relieve intractable (persistent, unstoppable) suffering. Some interpret euthanasia as the practice of ending a life in a painless manner. Many disagree with this interpretation, because it needs to include a reference to intractable suffering1. Euthanasia originally meant "a gentle and easy death", and is now used to mean "The act of inducing an easy death"; usually referring to acts which terminate or shorten life painlessly in order to end suffering where there is no prospect of recovery. Euthanasia is from two Greek words “eu” which means well or good and “thanatos” which means death (Good death). According to Oxford English dictionary Euthanasia means, the painless killing of a patient suffering from an incurable and painful disease or a person who is in irreversible coma. Hence, euthanasia refers to the practice of intentionally ending a life in order to relieve pain and suffering. Euthanasia is commonly called mercy killing which means ending one’s life based on the principle of mercy. Euthanasia is the deliberate killing (to cause death) of a person for the benefit of the person who is usually terminally ill. Terminally ill patients suffering from painful incurable diseases or incapacitating physical disorders can have their quality of life severely damaged by unbearable pain, incontinence, nausea, vomiting, breathlessness, difficulty in swallowing and so forth or psychological factors such as depression, loss of dignity, feeling a burden or dislike of being dependent. Euthanasia is the ‘intentional’ killing by an act or omission of a dependent human being for his or her alleged benefit. If

* Senior Research Fellow, Dept. of Philosophy Panjab University Chandigarh—160014. 1Christian Nordqvis, What is euthanasia (assisted suicide)? What is the definition of assisted suicide or euthanasia?, http://www.medicalnewstoday.com/articles/182951.php. Tuesday 28 July 2015

122



death is not intended it is not euthanasia. Euthanasia can be classified into three different types and they are---

‘Voluntary Euthanasia’ is the killing of a patient at his or her request in the belief that death would be a benefit to the patient and that the killing is for that reason justified”. This type of euthanasia is always conducted with the consent of the patient.

‘Non-voluntary Euthanasia’ is the killing of a patient without his or her consent or where the consent of the patient is unavailable. An example involves child euthanasia and this is illegal worldwide.

‘Involuntary Euthanasia’ is the killing of patient which is conducted against the will of the patient and this is not accepted (illegal) in all countries worldwide.

Etymologically, euthanasia means a good or happy death. Many might wonder if death could ever be a happy event. To be good, death should be desired and ought to be peaceful and painless. The concept of euthanasia would not apply to a person who slips away peacefully and painlessly without any intervention after a fulfilled life. Euthanasia requires an intervention by the person wishing to die or by a person acting on her behalf to hasten a wanted death.

The issue of Euthanasia has assumed prominence throughout the world because of a number of social and legal developments. These includes: the advent of Modern Medical Technology and availability of artificial measures to prolong life; land mark court cases challenging laws criminalizing Euthanasia; the growing elderly population and the increase in the number of people affected by HIV/AIDS; and the declining influence of organized religions.

As the biological and medical sciences become more adept at prolonging life, we have been brought to consider the extent of a person's right, and ability, to choose, to accept, and to reject treatment for some treatable condition. Cases may become complicated by the mental state of the patient (e.g., depression, intellectual disability), by

123



the effect of certain physical conditions on cognition, (e.g., kidney damage), by religious and cultural beliefs, by balancing the rights and welfare of an individual against those of the population, and by the practical costs and requirements of providing treatment and care. Psychologists, by virtue of their knowledge and skills in dealing with mental states, cognitive abilities, beliefs, and individual characteristics, have a useful perspective to offer the debate on the rights of a terminally ill person to request assistance from a medically qualified person to voluntarily terminate his or her life2.

American Journal of Psychiatry found that fewer than one in four expressed a wish to die, and all those who did had clinically diagnosable depression". Sometimes they have a family member make the decision for them. The whole family should sit down with a trained psychiatrist and sort through their mental trauma. They need help to realize that death is not the answer. The internet paper goes on to say "The humane response is to mobilize psychiatric and social service resources to address the problems that led to would-be suicide".

Euthanasia is an inhuman way of taking care of a difficult problem. Some people might say that it is inhuman to have someone suffer through the pain of his or her illness. Many of the families have a harder time dealing with the pain than the actual victim does. The families would like to ease their own pain along with the victim's pain. It is not inhuman to keep someone alive as long as humanly possible. If a cure is found, then the victim could possibly go on to live a long life. It would be inhuman to not let the victim have the chance to live the rest of his life. A human life is the most beautiful thing on the face of the earth or anywhere, and people should be given a chance to experience the beauty as long as possible3.

In the utilitarian point of view we all have a duty to our happiness, and a duty to the society. Euthanizing a person based on the 2 Dr. Susie Burke and Ms. Heather Gridley, Psychological Perspective on Euthanasia and Terminally ill, The Australian Psychological Society Ltd - July 1996; updated April 2008 3 Free Argumentative Essays: Euthanasia is Inhuman, http://www.123helpme.com/view.asp?id=16804. (Last Accessed 13-07-2011)

124



society aspect makes sense. With greater and greater emphasis put on managed care today, many doctors are at a financial risk when they provide treatments to patients who are in the dying process. These patients may also feel like not becoming a burden to the society at large, and choose to fulfill a duty – Euthanasia. It can be a family duty to do the right thing for the person and society.

Religions and Euthanasia---Death is one of the most important things that religions deal with. All faiths offer meaning and explanations for death and dying; all faiths try to find a place for death and dying within human experience. For those left behind when someone dies religions provide rituals to mark death, and ceremonies to remember those who have died. Religions provide understanding and comfort for those who are facing death. Religions regard understanding death and dying as vital to finding meaning in human life. Dying is often seen as an occasion for getting powerful spiritual insights as well as for preparing for whatever afterlife may be to come. Most religions disapprove of euthanasia. Some of them absolutely forbid it. The Roman Catholic Church, for example, is one of the most active organizations in opposing euthanasia. Virtually all religions state that those who become vulnerable through illness or disability deserve special care and protection, and that proper end of life care is a much better thing than euthanasia. Religions are opposed to euthanasia for a number of reasons4.

Virtually all religions with a supreme God have a command from God in their scriptures that says 'you must not kill this is usually interpreted as meaning 'you must not kill innocent human beings' this rules out euthanasia (and suicide) as well as murder, as carrying out any of these would be against God's orders, and would be an attack on the sovereignty of God. Human lives are special because God created them therefore human life should be protected and preserved, whatever happens therefore we shouldn't interfere with God's plans by

4 . Religion and euthanasia, http://www.bbc.co.uk/ethics/euthanasia/religion/religion.shtml. (Last Accessed 12-02-2011)

125



shortening human lives human beings are made in God's image therefore they have a special value and dignity this value doesn't depend on the quality of a particular life taking a life violates that special value and dignity even if it's one's own life even if that life is full of pain and suffering5.

Most religions disapprove of euthanasia. Religious people refer to the sanctity of life. God gives people life; so only God has the right to take it away. Roman Catholic Church regards euthanasia as morally wrong. Muslims are against euthanasia as they believe that human life is sacred because it is given by Allah. Sikhs have high respect for life-a gift of God and suffering is a part of the operation of Karma. Buddhism considers suicide a dishonorable act. Buddhism places great stress on no-harm (Ahimsa) and on avoiding the ending of life. The way life ends has a profound impact on the way the new life will begin as death is a transition and the deceased person will be reborn to a new life whose quality will be dictated by his Karma.

Hindu View---Hindu views of euthanasia and suicide are grounded in the doctrines of karma, Moksa, and ahimsa. Karma is the net consequence of good and bad deeds in a person's life, which then determines the nature of the next life. Ongoing accumulation of bad karma prevents Moksa, or liberation from the cycle of rebirth, which is the ultimate goal of Hinduism. Ahimsa is a fundamental principle in Indian religions, and means doing harm to no other being 6 . Most Hindus would say that a doctor should not accept a patient's request for euthanasia since this will cause the soul and body to be separated at an unnatural time. The result will damage the karma of both doctor and patient. Hinduism is less interested than western philosophers in abstract ideas of right or wrong. Rather it focuses on the consequences of our actions. For Hindus, culture and faith are inextricable. So although many moral decisions taken by Hindus seem more influenced

5 Opt. Citted. 6 . Gyan Rajhans, Modern Hindu Views of Suicide and Euthanasia, http://gyansrajhans.blogspot.in/2010/02/modern-hindu-views-of-suicide-and.html. ,FRIDAY, FEBRUARY 5, 2010

126



by their particular culture than by the ideas of their faith, this distinction may not be as clear as it seems7 . Old age and wisdom command the greatest respect in Hinduism and it is considered to be part of Dharma (duty) to honor, respect and care for elderly relatives.

In Hinduism, Paryopavesa pertains to die willingly through fasting by a person who has no desire or ambition left and no responsibilities remaining in life. It is also allowed in cases of terminal disease or great disability. Many Hindu Sanyasis and householders practice Paryopavesa at the fag-end of their lives. However, the decision for Paryopavesa must be publicly declared well in advance. It is really suitable for elderly ascetics and often it is practiced by them. According to the literature on Paryopavesa, for worldly people, Paryopavesa is religiously allowed when one is so old that he or she is unable to perform normal bodily purification and death appears imminent or the condition is so bad that life's pleasures are nil and the action is articulated publicly and done under religious regulation8.

Buddhist View--- Buddhists are not unanimous in their view of euthanasia, and the teachings of the Buddha don't explicitly deal with it. Most Buddhists (like almost everyone else) are against involuntary euthanasia. Their position on voluntary euthanasia is less clear. The most common position is that voluntary euthanasia is wrong, because it demonstrates that one's mind is in a bad state and that one has allowed physical suffering to cause mental suffering. Meditation and the proper use of pain killing drugs should enable a person to attain a state where they are not in mental pain, and so no longer contemplate euthanasia or suicide. Buddhists might also argue that helping to end someone's life is likely to put the helper into a bad mental state, and this too 7Euthanasia and suicide, http://www.bbc.co.uk/religion/religions/hinduism/hinduethics/euthanasia.shtml. 2009-08-25. 8. Dr. Kishore Lalit, Prayopavesa: The Hindu way to passive euthanasia through fasting unto death with no worldly desires left, http://www.merinews.com/article/prayopavesa-the-hindu-way-to-passive-euthanasia-through-fasting-unto-death-with-no-worldly-desires-left/15906545.shtml. 19 May 2015.

127



should be avoided. Buddhism places great stress on non-harm, and on avoiding the ending of life. The reference is to life-any life-so the intentional ending of life seems against Buddhist teaching and voluntary euthanasia should be forbidden. Certain codes of Buddhist monastic law explicitly forbid it. Lay-people do not have a code of Buddhist law, so the strongest that can be said of a lay person who takes part in euthanasia is that they have made an error of judgment. Buddhists regard death as a transition. The deceased person will be reborn to a new life, whose quality will be the result of their karma9.

Buddhism places great emphasis on not killing living beings, in fact, it is the first of the five precepts. So at first glance you would think euthanasia is wrong within Buddhism. However, it has to be noted that the precepts are not hard and fast rules, and were giving as training rules and not commandments. Also in Buddhism great emphasis is giving to Compassion. So if someone is dying in terrible agony, wouldn’t it be an act of compassion to hasten their death, with their consent or after consulting a doctor? Dalai Lama stated that all life is precious and so it is better to avoid euthanasia. However, he further stated that there are exceptional cases and so each case should be judged on an individual basis. This seems to leave room for euthanasia in certain circumstances. Thanissaro Bhikkhu, a Buddhist monk and scholar, stated that Gautama Buddha did not try and ease the patient’s transition to death, but concentrated on insight into suffering and its end. So, from Gautama Buddha’s perspective, encouraging a sick person to relax their grip on life or to give up the will to live would not count as an act of compassion. It seems he believes it is more compassionate to watch a loved one die in agony10.

Islamic View--- The Shari'a (Islamic Law) listed and specified the indications for taking life (i.e. the exceptions to the general rule of sanctity of human life), and they do not include mercy killing or make

9 Buddhism, euthanasia and suicide, http://www.bbc.co.uk/religion/religions/buddhism/buddhistethics/euthanasiasuicide.shtml. 2009-11-23. 10. Buddhism and Euthanasia, http://buddhismguide.org/buddhism-and-euthanasia. 11 March 2014.

128



allowance for it. Human life per se is a value to be respected unconditionally, irrespective of other circumstances. The concept of a life not worthy of living does not exist in Islam. Justification of taking life to escape suffering is not acceptable in Islam. Prophet Mohammad taught: "There was a man in older times who had an infliction that taxed his patience, so he took a knife, cut his wrist and bled to death. Upon this God said: My subject hastened his end, I deny him paradise." During one of the military campaigns one of the Muslims was killed and the companions of the prophet kept praising his gallantry and efficiency in fighting, but, to their surprise, the Prophet commented, "His lot is hell." Upon inquiry, the companions found out that the man had been seriously injured so he supported the handle of his sword on the ground and plunged his chest onto its tip, committing suicide.

There is still another dimension to the question of pain and suffering. Patience and endurance are highly regarded and highly rewarded values in Islam. "Those who patiently preserve will truly receive a reward without measure" (Qur'an 39:10). "And bear in patience whatever (ill) maybe fall you: this, behold, is something to set one's heart upon" (Qur'an 31:17). Prophet Mohammad taught "When the believer is afflicted with pain, even that of a prick of a thorn or more, God forgives his sins, and his wrongdoings are discarded as a tree sheds off its leaves." When means of preventing or alleviating pain fall short, this spiritual dimension can be very effectively called upon to support the patient who believes that accepting and standing unavoidable pain will be to his/her credit in the hereafter, the real and enduring life. To a person who does not believe in a hereafter this might sound like nonsense, but to one who does, euthanasia is certainly nonsense11.

Christian View---The underlying principles of our society were once based on the Biblical world view; indeed, western culture and our legal system were founded on it. An overview of selected Scriptures will reveal what this view of man is and how it is derived. Genesis 9:6 was instructive for our forbears and should be for us as well: "Whoever

11 Euthanasia, http://www.islamicity.com/Science/euthanas.shtml. (Last Accessed 12-08-2014)

129



sheds man's blood, by man his blood shall be shed, for in the image of God has He made man." This scripture is more than a prohibition on the taking of innocent life. Being created by God, we are stewards of our lives rather than owners. Created to be like God, our lives have an eternal purpose; set apart for, and owned by God. Since we are created in the image of God, our lives have intrinsic and immeasurable value. This is the source of the "sanctity of life" concept. Because we are created in God's image, people have an inherent and God-given dignity. Death is part of life. As Ecclesiastes 3:2 tells us, there is a time to be born and a time to die. The wise among us should number their days (Psalm 90:10). According to Scripture, life in the body is not always the highest value (to live is Christ but to die is gain-Philippians 1:21). In fact, the measure of love is that a man lay down his life for his friends (John 15:13). The Christian can even welcome natural death knowing that "Death has been swallowed up in victory" (1 Corinthians 15:54). Who doesn't look forward to that day when we will see Him "face to face"?12

God’s ownership of life is most relevant in relation to voluntary euthanasia, that is, assisted suicide. Proponents of assisted suicide argue that if we have the right to end our lives, then it should be legal to get help where we are unable safely to do it ourselves. Christians reject that we have that right. What about where pain is involved? Isn’t it compassionate to end suffering? This is of course the hardest aspect of the debate, because the Christian view will mean some people have to endure terrible suffering. Nevertheless, a Christian who is undergoing suffering is called to endure it rather than pre-empt God’s right to their life.

Conclusion----According to teachings of all religions, life is a divine trust and can never be terminated by any form of active or passive voluntary intervention. Except Jainism, all the religions oppose

12. Dr. H. Robert C. Pankratz and Dr. Richard M. Welsh, A Christian Response to Euthanasia, http://www.tkc.com/resources/resources-pages/euthanasia.html. (Last Accessed 14-05-2015)

130



the Euthanasia or deliberative death. Jainism accepts self deliberative death through the practice of Sallekhna and Santhara, ending the life through fasting. But the point is that Is euthanasia moral in the medical practice because Human being is manifestation of image of God. Through killing our self we are being guilty of blasphemy of convict against God. According to Buddhism suffering is a part of human life, it means we have to face it. Ending the life is not the solution of problem. Life is a divine grace of God. According to Plato, Socrates considered the agony of painful disease and suffering as just reasons not to “cling to life”. In the concluding marks that Euthanasia is an anti-humanistic and anti-religious activity which ends the pristine life or manifestation of image of god. Human have will-power and technique, so he faced the problem; because deviation from the problem is not a solution of any problem and all the religions of this world tells us so….

References

Priscilla Rockman (2012), Euthanasia: A study of its origin, forms and aspects, University of Gavle, Sweden.

Harvey Peter (2000), An Introduction to Buddhist Ethics-Foundation values and issues, Cambridge University Press: Cambridge, U.K.

Robert M. Baird, Stuart E. Rosenbaum (1989), Euthanasia: The Moral Issues, Prometheus, Books, Buffalo: New York.

Stark R, Glock CY (1968), American piety: the nature of religious commitment, University of California Press: Berkeley, CA.

Religion Faith Network, What is a ‘Good Death’? Public Health North East.

Harris J (1994), The Value of Life, Rutledge: London.

131



DROIT ADMINISTRATIF: AN IMPORTANT MACHINERY OF ADMINISTRATIVE JUSTICE SYSTEM

Ankita Bisen*

Administrative Law is the law that governs the powers, procedures and duties of administrative agencies. Administrative law expanded and developed considerably during the twentieth century, as legislative bodies worldwide created more governmental agencies to regulate the increasingly complex social, economic and political spheres of human interaction. One such outstanding development is the French administrative law, also known as droit administratif, which is the most important part of French public law. It includes all the legal rules governing the administrative activities of public entities and private individuals. Administrative law of France rests on ideas foreign to the fundamental assumptions of English common law and especially to the rule of law.

Under the French legal system there are two types of laws and two sets of courts independent from each other. The ordinary courts administer the ordinary civil law as between subjects and subjects whereas the administrative courts administer the law as between the subjects and the State. An administrative authority or official is not subject to the jurisdiction of ordinary civil courts exercising powers under the civil law in disputes between private individuals. All claims and disputes in which these authorities or officials are parties fall outside the scope of the jurisdiction of ordinary courts and they are dealt with and decided by special tribunals1. Thus, it is in furtherance of the doctrine of separation of powers. In France, the work of review of administrative decision is undertaken by Conseil d’ Etat assisted by the local administrative courts2.

Droit Administratif consists of rules developed by the judges of administrative courts. Whenever there is a conflict of jurisdiction * LL.M., Constitutional and Administrative Law, National Law Institute University, Bhopal. 1 Justice C.K. Thakker, Lectures on Administrative law, (2012), Eastern Book Company, Lucknow, p 24. 2 L. Neville Brown, The Reform of French Administrative Courts, (1959), 22 M.L.R. 357.

132



between ordinary courts and administrative courts, it is decided by the Tribunal des conflits. Indian administrative law has also imbibed some features of Droit Administratif as is evident from the increasing tribunalisation of the decision making process.

Historical Backdrop of Droit Administratif

French Administrative Law known as Droit Administratif is a very old system of administrative justice. It finds its origin in France approximately following the outbreak of French Revolution (1789) and re-establishment of order by Bonaparte in the year 1799-1800 and gradually gaining strength from then. It was feared that it would stifle all liberty under its shadow as liberty was inadequately protected and the coming of the new law coincided with the old traditional system and the establishment of the Napoleonic institutions3. But today the fear has vanished totally. In the opinion of French men true droit administratif owes its origin to the consular constitution of the year 1800 created by Bonaparte after the coup d’etat of the 18th of Brumaire. But historians admit that the ideas on which droit administratif rests may be traced back to the ancient regime; every feature of Bonaparte’s government fabric recalls some characteristics of the ancient monarchy; his Conseil d’Etat revives the Conseil du Roi, his prefects are copies of the royal intendants. It was from Bonaparte that modern droit administratif received its form. Whatever he borrowed from the traditions of old France he adapted to the changed conditions of the New France of 1800.

Before the Revolution in 1789, there was a constant struggle for power going on in the French politics between the traditional Bonapartists (who supported the executive power even in judicial matters) and reformist parliaments (who supported the jurisdiction of ordinary courts). In pre-revolutionary France, Conseil du Roi advised the King in legal and administrative matters. This body can be compared with Curia Regis and the Privy Council in Britain during

3 C. Sumner Lobingier, Administrative Law & Droit Administratif, (1942-43), Hein Online- 91 U. Pa.L.R.

133



feudalistic days. Conseil du Roi also discharged judicial functions such as deciding disputes between great nobles. Ordinary courts became jealous and not only interfered with the functioning of the executive but also tried to impede the growth of the measures which the monarchy wanted to introduce4.

After the Revolution in 1789 a major breakthrough was made in this deadlock. The first step taken by the revolutionists was to curtail the power of the executive which was done on the theory of separation of powers by the famous 16-24 August, 1790 law. Conseil du Roi was abolished and the King’s powers were curtailed. Napoleon, who became first Consul, favoured freedom for the administration and also favoured reforms. He wanted an institution to give relief to the people against the excesses of administration. It was therefore, that in 1799 Conseil d’Etat was established. The main aim of such institution was to resolve difficulties which might arise in the cause of the administration. However, in due course of time it started exercising judicial powers in matters involving administration. The position is that in all matters involving administration the jurisdiction of Conseil d’Etat is final. It receives direct complaints from the citizens5.

The Concept of Droit Administratif

French Administrative law is paradigmatically different from most of the administrative laws of its foreign counterparts and is one of the best contributions to international culture. French administrative law or droit administratif is a branch of law which deals with powers and duties of various administrative agencies and officials6. Droit administratif is constructed in a peculiar manner so that it be distinct from ordinary courts. The officials chosen to fill the high posts are personally eligible for so and clothed with peculiar authority. They have a joint responsibility towards the public known as "espirit de corps"

4 Dr. I.P. Massey, Administrative Law, (2008), Eastern Book Company, Lucknow, p. 19. 5 ibid, p. 20. 6 Justice C.K. Thakker, Lectures on Administrative Law, (2012), Eastern Book Company, Lucknow, p 12.

134



which in matters of jurisdiction displays itself in a special mode of approaching such problems as arise and as a consequence in the process of solving them7.

Meaning and Definition of Droit Administratif-

Droit administratif is the name given to the Administrative Law prevailing in France. This system is basically the product of the Doctrine of Separation of Powers in the sense that judicial power is kept separate from administrative power. Accordingly, unlike the U.S.A., the doctrine has meant in France that there should be separation between the Courts and the Administration. Thus, the system of Droit Administratif in France has resulted in non-interference by the courts in the working of administrative authorities.8

France has developed a system of administrative tribunals distinct from the ordinary courts which have no jurisdiction on the administration. A person seeking any redress against the administration has to go to an administrative court and not to an ordinary court.9

The most significant aspect of Droit Administratif is that the ordinary courts exercise no control over the administration which is supervised instead by administrative tribunals. Although called administrative tribunals, these are independent bodies. All tribunals are subject to the supervision of Conseil d’Etat which acts as the court of appeal from all administrative tribunals.10

According to Dicey11, droit administratif is that portion of French law which determines:

a.) position and liabilities of State officials,

7 Achilie Mestre, Droit Administratif, (1927-29), Hein Online -- 3 Cambridge L.J. 355. 8 M.P. Jain and S.N. Jain, Principles of Administrative Law, (2011), LexisNexis Butterworths Wadhwa, Nagpur, p 27. 9 ibid 10 ibid 11Prof. A.V. Dicey, Law of the Constitution, (1939), Oxford University Press, UK, p 495.

135



b.) rights and liabilities of private individuals in their dealings with officials as representatives of the State, and

c.) procedure by which these rights and duties are enforced.

According to him, this system is based on two principles, namely,

a.) an individual in his dealings with the State does not, according to the French legal system, stand on the same footing as that on which it stands in dealing with his neighbour; and

b.) the government and its officials are independent of and free from the jurisdiction of the ordinary civil courts.

From the above two principles, the following consequences ensue-

a) the relation of the government and its officials towards private citizens must be regulated by a body of rules which may differ considerably from the laws which govern the relation of one private person with another;

b) the ordinary courts which determine disputes between private individuals, have no jurisdiction to decide disputes between a private individual and the State but they are determined by administrative courts;

c) in case of conflict of jurisdiction between two sets of courts, the said dispute will be decided by the administrative court; and

d) droit administratif has a tendency to protect, from the supervision or control of the ordinary law courts, any servant of the State who is guilty of an act, however illegal, whilst acting bona fide in obedience to the orders of his superiors and in the discharge of his official duties.12

According to Dr. I.P. Massey- “In France, Droit Administratif can be defined as a body of rules which determine the organisation and

12 ibid, p 330.

136



the duties of public administration, which regulate the relations of the Administration with the citizens of the state.”13

Comments of some eminent authors on French Droit Administratif-

1. Wade14 says- “Once rid of the illusion that administrative courts must inevitably be biased, one can see that they hold the keys to some problems which are insoluble under the separation of powers as practised in England.”

2. Schwartz15 says- “An analysis of the French Law of State liability shows clearly that it has developed a complete system of State responsibility far beyond anything thus far evolved in the common law world. Not only has the French system been able to free itself from all traces of the doctrine of sovereign immunity, it has gone much further than to make the State liable for its torts on the same basis as an individual citizen. The private citizen in France is still liable primarily for the damages caused by his faults. The state in France, on the other hand, is no longer liable only or even primarily, on the basis of fault. The rule now generally applied by Conseil d’Etat is that of absolute liability. The French State is responsible practically in every case where damage has been caused by its acts.

Composition and Working of Conseil d’Etat-

Conseil d’Etat, established in 1799, has been characterised as the ‘bulwark of civil liberties’, and also ‘the guardian of administrative morality’. The system has come to be regarded as providing an effective protection to individual rights against the despotism of public administration16. The judges of Conseil d’Etat possess high degree of administrative expertise and so they are better able to control the 13 Dr. I.P. Massey, Administrative Law, (2008), Eastern Book Company, Lucknow, p 22 14 Wade, Administrative Law, (1988), p 33-34. 15 Schwartz, American Administrative Law, p 222, cited by V.G. Ramachandran, Administrative Law, (1984), p 62 16 Brown and Bell, French Administrative Law, (1993).

137



administration than the ordinary courts where the judges are generalists and lack expertise in the administrative field; accordingly, judicial control of administrative action is peripheral and lacks depth17. France has made a commendable contribution to legal science by introducing separate system of administrative jurisdiction and administrative law created by Conseil d’Etat18.

Conseil d’Etat consists of a body of men who are on the one side the confidential advisors of the government and on the other side decide the cases of the subjects against the administration. In the latter case, they act as impartial judges and if necessary condemn the executive acts. This paradox has made the Conseil d’Etat, an efficacious institution in France19. The judges of Conseil d’Etat were experts in the field of administration. In the beginning it was not an independent court but an appendage of the executive. Its main task was to advise the minister with whom the complaint was to be lodged. In fact the minister was the judge, and the Conseil d’Etat administered only advisory justice. It did not have public sessions. It had no power to pronounce judgements. It represented the Government’s point of view. It was this aspect of the Conseil d’Etat which was against Dicey’s concept of the Rule of Law.

In 1872, its formal power to give judgement was established. The Arrets (Executive law) Blanco20 (Blanco’s case), finally laid down and settled that in all matters involving administration, the jurisdiction of the Conseil d’Etat would be final. It laid down, among other things, the principle that questions of administrative liability would be within the jurisdiction of administrative courts and that the liability was subject to special rules different from those of Droit Civil. In 1872, the Conseil 17 The judges of Supreme Court have several times expressed reservations in hearing of appeals from expert administrative bodies. [West Bengal Electricity Regulatory Commission v. CESC Ltd., (2002) 8 SCC 715; Cellular Operators Association of India v. Union of India, (2003) 3 SCC 186: AIR 2003 SC 899.] 18 M.P. Jain and S.N. Jain, Principles of Administrative Law, (2011), LexisNexis Butterworths Wadhwa, Nagpur, p 27. 19 C.J. Hamson, Executive Discretion and Judicial Control, (1954), p. 46. 20 Decision of the Tribunal of February 8, 1873.

138



d’Etat acquired a special litigation section21. In the meantime, the litigation section of Conseil d’Etat has emancipated itself from its original role and currently operates as an independent administrative court. In 1889, it started receiving direct complaints from the citizens and not through ministers.

In certain forms of litigation, designated by law, Conseil d’Etat acts as a court of first and last instance. In other cases there are essentially two levels of judicial action. In its role as court of appeal, the Conseil d’Etat essentially reviews decisions of the tribunaux administratifs, which since 1953 have acted as general administrative courts of first instance and as such have jurisdiction in principle over all administrative litigation. In its role as Supreme Court, the Conseil d’Etat reviews the decisions taken at first instance by the majority of special administrative courts. These include not only the disciplinary courts, but also certain quasi-judicial administrative commissions. Actions may be brought before the ordinary courts for disputes which relate to administrative action which comes within the sphere of private law or certain forms of administrative litigation especially designated by law22.

If there is conflict between the ordinary courts and the administrative courts regarding jurisdiction the matter is decided by Tribunal des conflits. This is a special tribunal which consist of an equal number of ordinary and administrative judges. It is presided over by the minister of justice in France. Apart from all above mentioned functions one of the main functions of the Conseil d’Etat form the beginning were planning and advising. It advises and plans executive business. The difficulties which occur in the course of administration are resolved by the Conseil d’Etat23.

21 Le Conseil d’Etat, son histoire a travers les documents d’epoque, 1799-1974, (1974) Paris; cited by Jurgen Schwarze, European Administrative Law (1992), p.101. 22 Jurgen Schwarze, European Administrative Law (1992), p.108. 23 C.J. Hamson, Executive Discretion and Judicial Control, (1954), p. 46.

139



Jurisdiction of civil courts: control on administrative action-

The civil courts also have jurisdiction over the so-called voies de fait i.e. administrative action which has no statutory basis, which is clearly illegal, and which constitutes a serious infringement of basic civil liberties. In such cases the types of action which can be taken are, as normally the case, classified in accordance with the extent of the relevant court’s jurisdiction. Under the contentieux de l’annulation (action for annulment) it is only the courts which may annul unlawful administration. The most important type of action under this head is the recours pour exces de pouvoir. Under the litigation involving unlimited jurisdiction the court also has the power to amend or replace the administrative decision. With the exception of the action for damages, which may result in the administration being ordered to make a financial payment, the courts are reluctant to issue directives to the administrative authorities. An action seeking to compel the administration to perform a certain obligation would be incompatible with the French interpretation of the separation of powers.24 In, Conseil d’Etat (Contentieux) No. 136941 Case Clichy Dépannage25, it was held that when the Conseil d'Etat judges in its capacity of "judge of cassation" (over legal issues), it will not control "manifest error of assessment" (of the administrative act's legality).

Factors which have successfully subjected the Administration in France to the Rule of Law through Droit Administratif-

Following factors have successfully subjected the administration in France to the Rule of law through droit administratif with Conseil d’Etat at the apex-

1. The composition and function of the Conseil d’Etat itself;

2. The flexibility of its case laws;

24 Jurgen Schwarze, European Administrative Law (1992), p.109. 25 A.J.D.A. 1995, 159 Case Société "Clichy Dépannage"

140



3. The simplicity of remedies available before the administrative courts;

4. The special procedure evolved by those courts; and

5. The character of the substantive law which they apply.26

Rules of Droit Administratif-

In France, droit administratif consists of rules developed by the judges of administrative courts. There are three series of rules included in droit administratif:

1. Rules relating to administrative authorities and official appointment, dismissal, status, salary and duties etc.

2. Rules relating to the operation of public services to meet the needs of the citizens.

3. Rules relating to administrative adjudication- if any injury is caused to a private citizen by the administration, the matter have to be decided by the administrative courts. Conseil d’Etat is the highest administrative Court, whose decision is final.

In its keynote Blanco decision of 187327, Tribunal des Conflits (dispute tribunal) held that the liability of the public authorities was to be made subject, not to the fundamental principles of the Code Civil which regulates the relations between individuals, but to (those “regles speciales qui varient suivant les besoins du service et la necessite de conciliar les droits de l’Etat avec les droits prives) a special set of rules of public law28.

Characteristic Features of Droit Administratif

The following are the characteristic features of the Droit Administratif in France:

26 L. Neville Brown and J.F. Garner, French Administrative Law, (1967), p. 132. 27 Decision of the Tribunal on February 8, 1873. 28 Jurgen Schwarze, European Administrative Law (1992), p.101.

141



Matters concerning state and administrative litigation fall within the jurisdiction of administrative courts and cannot be decided by the ordinary courts of the land: that the ordinary judicial tribunals which determine ordinary questions, whether they be civil or criminal, between man and man, must, speaking generally, have no concern whatever with matters at issue between a private person and the State, i.e. with questions of administrative law, but that such questions, in so far as they form at all matter of litigation (contentieux administratif), must be determined by administrative Courts in some way connected with the government or the administration.29

In deciding matters concerning the state and administrative litigation, rules as developed by the administrative courts are applied: that the relation of the government and its officials towards private citizens must be regulated by a body of rules which are in reality laws, but which may differ considerably from the laws which govern the relation of one private person to another. This distinction between ordinary law and administrative law is one which since 1800 has been fully recognised in France, and forms an essential part of French public law, as it must form a part of the public law of any country where administrative law in the true sense exists30.

If there is conflict of jurisdiction between ordinary courts and administrative court, it is decided by the Tribunal des conflits.

It protects government officials from the control of the ordinary courts.

Conseil d’Etat is the supreme administrative court and is not a priori invention but is the product of historical process with deep

29Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (LF ed.) [1915], chapter XII. Edition used: Introduction to the Study of the Law of the Constitution, ed. Roger E. Michener (Indianapolis: Liberty Fund 1982). 30 ibid

142



roots. It is not merely an adjudicatory body but is also a consultative body. In 1979 it considered 147 draft laws which were placed before the parliament in 1980 and also considered 489 draft decrees.31

Droit Administratif has no codified law, which distinguishes it from other civil laws. The authors of the code are naturally inclined to consider their work as a monument of legal literature which almost completely stabilizes the law at a given moment.

Merits of the System:

The most important merit of Droit Administratif is that the ordinary courts exercise no control over the Administration which is supervised instead by administrative courts generally called administrative tribunals, these are independent bodies. All tribunals are under the supervision of Conseil d’Etat32. Thus, the system is in furtherance of separation of powers.

Another merit of the system is that the judges of these administrative courts bear administrative expertise and thus exercise better control over administration than ordinary courts where judges lack administrative expertise. It provides effective protection to individual rights against administration.

In France the organ of review of administrative decisions is itself a part of the administration, as the work is taken by the Conseil d’Etat, assisted since 1954 by the local administrative courts33. In spite of, or because of34 this intimate link between the supervising or reviewing tribunals and the administration, the onus of proof in the French system is always on the administration. The administrative agencies must be prepared to justify their acts. “Paradoxically” observe Ridley

31 Bernard Ducaim: Role of Conseil d’Etat in Drafting Legislation, translated by William Dale, International and Comparative Law Quaterly, Vol. 30, Part 4, Oct. 1981, p. 882. 32 Supra 18 33 L. Neville Brown, The Reform of French Administrative Courts, (1959), p. 22 34 Hamson, Executive Discretion and Judicial Control, (1954), p. 45

143



Blondel, “It (Conseil d’Etat) was able to scrutinize administrative decisions more thoroughly than the ordinary courts ever had done”35.

Dicey’s Critique on Droit Administratif:

Dicey did not favour droit administratif. According to him, the object of two sets of courts and two types of laws is to protect government officials from the consequences of their acts. According to him, there was no rule of law in France. In view of the fact that there was supremacy of law, and equality of all citizens before the law, there was much more effective control over administrative action in England than in France36. He compared the English system with the French system and pointed out that in England there were no special tribunals to determine the legality of acts of the administration as in France. Every individual, whether a private citizen or a public official was ruled by the ordinary law and was subject to the ordinary courts in England. According to Dicey, the separate hierarchy of administrative courts provided by the French droit administratif resulted in the denial of equality before law37. The growth in the number of special tribunals caused concern to Dicey and his views were shared by other writers also who felt that seeds of ‘new despotism’ were sown in the growing powers of the State38.

Criticism of Dicey’s View on Droit Administratif-

Dicey thoroughly misunderstood the real implications of French Droit Administratif and was misinformed about the facts in England39. The French droit administratif had in fact been able to give expeditious and inexpensive relief to the citizen against the action of the administration. Although Conseil d’Etat technically speaking was part of the administration but was in practice very much like a court. In

35 F. Ridley and J. Blondel, Public Administration in France, (1964), p. 129. 36 Supra 13, p. 12. 37 S.P. Sathe, Administrative Law, (2006), LexisNexis Butterworths Wadhwa, Nagpur, p. 9. 38 Hewart, New Despotism, (1929), p. 41. 39 Wade, ‘Introduction to the Ninth Edition of Dicey’, in Introduction to the Law of the Constitution by Dicey, (1952).

144



effect, the actions of the administration were not immune from judicial control. In fact the official transgressing the bounds of law or acting contrary to the rules of natural justice is subject to more effective control in France than in Anglo-Saxon countries. It is true that during the early years, the Conseil d’Etat was in a large measure a servile instrument of the Emperor but after 1872, it became an independent court. The popular perception that in France, the state officials in their official dealings with private citizens are above law, or are a law unto themselves, is erroneous. Dicey’s criticism was therefore not valid40. The actual working of the Conseil d’Etat shows that it gave no less protection to the citizen against the arbitrary actions of the administration than did the ordinary courts in England. Moreover, special tribunals were not totally absent in England at the time Dicey wrote his thesis.

The Impact of Droit Administratif on Indian Administrative Law:

The Indian Administrative Law while basically common law oriented as the administration is subject to judicial control, has also imbibed some features of Droit Administratif as is evident from the increasing tribunalisation of the decision making process. In India, like French droit administratif, Administrative tribunals have been established to decide various quasi-judicial matters in place of ordinary courts.

Further, two doctrines of Droit Administratif, viz.,“legitimate expectation” and “proportionality” have also found acceptance, to some extent, in Indian Administrative Law.

The doctrine of legitimate expectation provides a central space between no claim and a legal claim wherein a public authority can be made accountable on the ground of an expectation which is legitimate. The doctrine was first referred to in State of Kerala vs.

40 Arthur T Vanderbilt, Introduction to Bernard Schwartz, French Administrative Law and the Common Law World, (1954), p. 313

145



K.G. Madhavan Pillai41 where the government had issued a sanction to the respondents to open a new unaided school and to upgrade the existing ones. However, after 15 days a direction was issued to keep the sanction in abeyance. The order was challenged on the ground of violation of principles of natural justice. The court held that the sanction order created legitimate expectation in the respondents which was violated by the second order without following the principles of natural justice which is sufficient to vitiate an administrative order.

The doctrine was further applied in Scheduled Caste and Weaker Section Welfare Association vs. State of Karnataka42 where the court held that where a person has legitimate expectation to be treated in a particular way which falls short of an enforceable right, the administrative authority cannot deny him his legitimate expectations without a fair hearing. In Navjyoti Coop. Group Housing Society vs. Union of India43 court held that where persons enjoying certain benefits or advantage under old policy of government derive a legitimate expectation even though they may not have any legal right under private law in regard to its continuance but before changing that policy affecting adversely that benefit the aggrieved persons are entitled to a fair hearing.

The doctrine of proportionality, followed in French droit administratif, has also been recognised in India. It means that the administrative action should not be more drastic than it ought to be for obtaining desired result. In Shambhu Ram Yadav vs. Hanuman Das Khatry44, an advocate was accused of asking his client to pay Rs. 10,000 for giving bribe to a judge. The disciplinary committee let him off with a reprimand because of his age and unblemished record. The Supreme Court while holding that the punishment was too mild compared to the gravity of the offence, quashed the decision of disciplinary committee and held that the misconduct deserved striking 41 (1988) 4 SCC 669 42 (1991) 2 SCC 604. 43 (1992) 4 SCC 477. 44 (2001) 6 SCC 1.

146



him off from the roll of practising advocates. In Bhupinder Kumar Sharma vs. Bar Association, Pathankot45, the Supreme Court held that the punishment of debarring the advocate for life for carrying on photocopying centre in court premises was too harsh.

Some Relevant Cases and Illustrations

In view of piecemeal nature of the available legislation and customary law, it is the case laws which have been the catalyst in the whole process of development of administrative law in France. Although under the Constitution of France the courts are not formally empowered to issue binding and generally applicable rules, the leading decisions of the Conseil d’Etat are generally acknowledged as constituting valid law. The Conseil d’Etat itself very rarely deviates from these decisions, the administration considers itself to be bound by its jurisprudence and an infringement of the case law is punished in the same way as an infringement of the written law, i.e. by a declaration of nullity or liability of the public authorities46.

Barel’s case- The minister concerned did not permit certain candidates to appear at the civil service examination. It was reported in the newspaper that the Government had refused permission to candidates who were communists. The Minister however denied it. The candidates approached Conseil d’Etat, which quashed the order, since no reasons were recorded by the minister for refusing such permission. The Conseil presumed that there were no reasons which would justify such a refusal. Thus, the Conseil d’Etat took the view in 1954 which was taken by English courts in 1968 (in Padfield v. Minister of Agriculture Fisheries and Food47).

Fortune’s case- ‘A’ wanted to appear at a competitive examination. He was not permitted to appear on the ground that his confidential file contained certain adverse remarks. In an action by ‘A’, Conseil d’Etat went through the records and called upon the

45 (2002) 1 SCC 470. 46 Jurgen Schwarze, European Administrative Law (1992), p.101. 47 1968 AC 997; (1968) 2 WLR 924 (HL).

147



secretary to justify the order. The Secretary pleaded that it was an Act de Government (Act of State) and that the court had no jurisdiction to deal with the matter. He did not produce any document. The court passed an order to produce the entire file relating to the matter, went through it and quashed the order. In England, governed by the rule of law one cannot conceive of such a situation, for the ordinary courts of law have no right to interfere with any Act of State, or with neither ministerial discretion nor can they have access to secret documents48.

The inhabitant of a municipality who paid municipal taxes was found to be entitled to sue for the purpose of challenging any measure adopted by the communal authorities with financial implications49. In addition, associations may seek to represent the interests of their members in court actions50

If an employee in a Government factory is injured by an explosion, according to the administrative courts in France, the risk should fall on the State, but the English courts will not hold the State liable unless the injured proves negligence of some servant of the Crown. Thus, English courts still apply the conservative and traditional approach that there should be no liability without fault; French administrative courts adopt the pragmatic approach that “justice requires that the State should be responsible to the workman for the risk which he runs by reason of his part in the public service”51.

When a passer-by chased a thief and was stabbed, the Conseil d’Etat held that he was entitled to recover damages from the State which would not have been done under English Law. Similarly, as the French administrative courts are recognised as guardians of public servants, the latter also get better protection from their

48 Justice C.K. Thakker, Lectures on Administrative Law, (2012), Eastern Book Company, Lucknow, p. 26. 49 Decision of Conseil d’Etat of March 29, 1901 (Casanova case), G.A. No. 8, p.35. 50 Decision of Conseil d’Etat of December, 28, 1906 (Syndicat des patrons coiffeurs de Limoges), G.A. No. 18. p. 69. 51 Supra 48

148



employers. Thus, where a Rector of Strasbourg Academy was asked to take up some other duties and relieved from his post without in fact new duties being assigned to him, the administrative court held that he was removed form service and gave him redress52. According to Lord denning53, in England, ordinary courts of law could not have protected him because as a rule, public servants can be dismissed by the Crown at pleasure.

Under the Act of 1872, the French Government had a right to have a monopoly of manufacturing matches and for that purpose it could acquire the factories run by private persons. A provision to pay compensation for compulsory acquisition was also made in the Act. However, if a factory was ordered to be closed on the ground of improvement of health, no compensation was required to be paid. In one case, an order to close the factory was passed by a Minister on the ground of improvement of health, but in reality, the motive was to avoid payment of compensation to the owner of the factory. An ordinary court could not have given any redress to the owner in such case, but Conseil d’Etat held that the power was abused by the Minister and awarded 20,000 pounds to the factory owner54.

A, a private gas company entered into an agreement with the Town Planning Council to supply gas at a particular rate for a period of 30 years. The agreement was made on the basis of the rates of coal in the year 1904. But after the First World War, the rates shot up. An application was filed by the gas company before Conseil d’Etat for revision of rates. A common law court would have granted the relief prayed for, but the Conseil d’Etat accepted it and revised the rates. According to the Conseil, it was in the interest of the public at large that the company should continue to work rather than be wound up

52 ibid 53 Cases and Materials on Administrative Law in India, Vol. I (1966), ILI, Delhi, p. 56. 54 ibid

149



and insistence on providing gas at the fixed rates would compel the company to go into liquidation55.

When the decision of Liversidge v. Anderson56 (Liversidge), was brought to the notice of the French Administrative courts in which the principle of subjective satisfaction was upheld by an ordinary court of law even in the case of detention of a person, the Conseil d’Etat was unable to agree with it. According to French officials, the decision in Liversidge case57 cannot be accepted in any civilised country which had evolved the concept of rule of law58.

Conseil d’Etat also applied the doctrine of legitimate expectation (protection de la confiance legitime) recognised by European Court of Justice (ECJ). It held that administration must be careful not to create a situation adversely affecting innocent persons by unexpected change in the rules applied, or in its behaviour, unless such sudden change is necessitated by public interest. Administration is entitled to change its decisions, but it must take appropriate steps to ensure that those likely to be affected are informed beforehand59.

Among the more recent decisions of Conseil d’Etat in 197860, the right to lead a normal family life was recognised in relation to foreigners living in France, By creating its own principles, the Conseil d’Etat avoids applying the European Human Rights Convention.

Conclusion:

55 ibid 56 1942 AC 206: (1941) 3 All ER 338. 57 ibid 58 ibid 59 ibid 60 Decision of Conseil d’Etat of December 8, 1978, (G.I.S.T.I.), G.A. No. 112, 587.

150



The most significant contribution made by France to the legal system has been the separate system of administrative jurisdiction and administrative law. Most European countries like Belgium, Netherlands, Italy, Spain, Portugal and Greece follow the French practice of dual jurisdiction. Since its inception, Droit Administratif has grown and improved over the period of time, has acquired efficiency and has become a paradigm for administrative law in the world. The early common criticism of the Droit Administratif in France that it cannot protect the private citizens from the excesses of the administration is not valid and researches have shown that no single institution has done so much for the protection of private citizens against the excesses of the administration as has been done by the Conseil d’Etat. The system provided expeditious and inexpensive relief to the citizens. Dicey’s criticism that separate hierarchy of administrative courts provided by the French droit administratif resulted in the denial of equality before law is invalid, in fact the public official transgressing the bounds of law or acting contrary to the rules of natural justice is subject to more effective control in France than in other countries. Various countries, especially Commonwealth nations, have adopted the features of droit administratif with slight modifications. Indian Administrative law has also imbibed some features of droit administratif (like the doctrines of legitimate expectation and proportionality) as is evident from the increasing tribunalisation of the decision making process.

151



APPLICABILITY OF THE DOCTRINE OF SPEAKING ORDERS TO ADMINISTRATIVE TRIBUNALS

Mr. Abdul Sajid, B.A, LLM×

1. Introduction:

The concept of speaking orders has become a very important issue in adjudications. Historically there was no requirement earlier that adjudicatory bodies like tribunals should give reasons for their decisions. It has now become a principal of natural justice that the tribunals and other adjudicatory bodies should give speaking order to mean decisions should be supported by reasons.

2. Speaking Orders, which require the recording of reasons in support of the orders, has been declared for the first time as the third principle of natural justice.1 Tracing the history of early period in English as well as in Indian Law, there was no requirement that the Administrative Tribunals must give reasons in support of their decisions.2

3. In a social welfare state, there has been an increasing legislative activity of making innumerable as the State has to promote a welfare state and to ensure that the maximum happiness of the maximum number of people is achieved. This has been known in the Bentham’s theory of legislation as the principle of utility.3 These laws gave rise to a number of disputes and the various adjudicatory bodies were called upon to adjudicate such disputes. While the adjudicatory bodies decided the disputes through an order, the need for appellate authorities to examine the validity of the order, whenever appeals were preferred against the said order arose. The appellate authorities could not decide the appeals, in the absence of reasons for the said orders

× Advocate, Hyderabad 1 Siemens Engineering & Manufacturing Co. of India Ltd., Vs. Union of India AIR 1976 SC P.1785. 2 De Smith ‘Judicial review of Administrative Action (1995) p.457. 3 See Bentham, ‘Theory of Legislation’ P.1.

152



were given. Further the party concerned were not in a position to know, why the case was decided in the manner it was decided, unless they were informed through reasons in support of the order. Reasoned decision is in a way to satisfy the parties that justice has been done.

4. Speaking Orders or reasoned decisions became an indispensable necessity. In other words, ‘Speaking Orders must speak for itself’.4 The Supreme Court observed5 “Non-ascribing of reasons, while passing an order is most definitely invalidates such an order or the action taken”.

5. The mandate of a welfare state necessitated the imperative need for the conferment of wide discretionary powers on the authorities. It was seen that there were cases, where the authorities have misused their powers, quite contrary to the purposes for which such powers were conferred. Resultantly, the need for restraint on the authorities, while passing orders affecting the rights of parties has become a ‘sin qua non’ by insisting the authorities to give reasons for their decisions6. With regard to tribunals not headed by Judges, the need to train them in the matter of giving reasoned decisions has been felt. The Judicial academics which are already imparting training to Judge in several areas, may be required to give training to persons heading the tribunals by non-judicial persons.

6. A check list may be provided to be filled in and attached to the order as an appendix to the decision containing the details such as:

a) Brief reference to evidence on record

b) Brief account of arguments advanced by parties

c) Case-laws quoted and relied upon

4 Risal Singh Vs. State of Haryana, AIR 2014 SC P.2922. 5 Ibid. 6 M.P. Industries Ltd., AIR 1966 SC P.671.

153



d) Findings supported by evidence

This will ensure that the justice has been done in fact and indeed. This will also make public at large to know that the decision was ‘just’ and ‘reasonable’7.

7. Data and Judicial Rulings Relied Upon

The approach of the courts in the case of non-recording of reasons has not been consistent. In some cases, it was considered as illegal,8 while in some others it was remitted to the authorities for reconsideration9 and yet in others, the authorities have taken appropriate action on the basis of record.10

8. Stating that the statement of reasons is one of the essentials of justice,11in Menaka Gandhi12 the Supreme Court observed: “Law cannot permit the exercise of power to keep reasons undisclosed, if the sole reason for doing so, is to keep the reasons away from judicial scrutiny”. However, the reasons given for the order is subject to judicial review powers of the courts on several grounds such a ‘irrelevant’, ‘erroneous’, ‘incorrect’ or ‘non-existence’ of such grounds.

9. Conclusion:

The order, besides supported by reasons, must be communicated as ‘communication of an order is an essential part of ‘Speaking Orders’, as otherwise the parties will not know the substance of the order and will not be able to seek further remedial reliefs.13

7 T.R.Tandu Vs. Union of India, aIR 1978 SC P.597. 8 Bhagat Ram Patanga Vs. State of Punjab AIR 1972 SC P.1571. 9 Express Newspapers Ltd., Vs. Union of India, AIR 1958 SC P.578. 10 K.L. Tripathi Vs. Union of India (1984)1 SCC P.431. 11 AIR 1990 SC P.78. 12 (1978)1 SCC P.248. 13 Liberty Oil Mills Vs. Union of India, AIR 1984 SC P.1287.

154



Judicial review constitutes as essential part of the basic structure of the Constitution.14

10. ‘Finality clauses’ in the statutes making decisions final will not prevent the courts from exercising judicial review on several grounds.

If an order is given unsupported by reasons, it would render the decisions illegal.

11. It is worth-wise to give training by judicial bodies particularly to quasi judicial tribunals in the matter of giving speaking orders. An order which fails to give reason should invariably. In such case it would be better that the case remitted to the tribunal by higher courts for reconsideration and they require to give reasons for decision.

14 Keshavananda Bharati Vs. State of Kerala (1973)4 SCC P.225.

155



CAPITAL PUNISHMENTS: NEED FOR A RELOOK

Ms. Sameena Bazmoul, B.A, LLM×

1. Introduction:

Capital sentence was in existence since a long period of time the question of its legality as arisen many number of times and the issue now is whether it should be retained or abolish. A brief study is made on this crucial aspect.

2. Historical Background:

Nearly (200) cases where death sentences were awarded and executed, who were found innocent later, which gives rise to a relook at the award of death sentences.1 Historically as long back in 18th century BC, death penalty was provided for (25) different crimes, which was carried out by several methods.2 Public hanging was one such method and even the Indian judiciary made an unsuccessful attempt to order public hanging.3 Inspite of the fact that death penalty is sought to be eliminated,4 still (83) Countries have retained it. In the Indian Constitution, it is retained under the clause ‘deprivation of life by procedure established by law’.5 In the penal law of India,6 death penalty is recognized as one of the forms of punishment.

3. India ratified the International Convention7 and as a consequence committed to the abolition of death sentence.

× Advocate, Hyderabad. 1 Mr. Martins statement quoted by Dr. Jank Raj Jai in “Presidential powers of pardon on death penalty”. Regency Publications, New Delhi (2006) P.14-15. 2 See for details code of Hammurabi of Babylon. The different methods advocated were (a) crucification (b) drowning (c) beating (d) burning the culprit alive and (e) public hanging. 3 See for details Attorney – General of India Vs. Lachma Devi AIR 1986 SC P.467. 4 See for details International Covenant on Criminal & Political rights, 1989. 5 See for details Art 21 of the Constitution which relates to Fundamental right to life and personal liberty’. 6 See Section 53 of the Indian Penal Code which provides for death penalty for offences such as ‘murder’, ‘gang robbery’ coupled with murder, waging war against the Government etc. 7 See Note 4.

156



However, death penalty is treated as an exception and not as a rule.8 The Indian practice in the execution of death sentences varies from other Countries, as it recognizes ‘hanging’ as the only method of execution, but reasons have to be given for recording conviction with death.9 There have been strong opposition to abolition of death sentences (retentionist) and equally vehement opposition from those who argue in favour of its abolition (abolitionists). Even in the Countries, where it has been abolished, there is a strong move for its reintroduction.10 However, it has been observed that there is no foolproof mechanism to determine the innocence and the occurrence of wrongful execution cannot be ruled out.11 The Law Commission of India, stated that the modern approach to capital sentence and observed” the severity of capital punishment and the strong feeling shown by certain sections in stressing deep question of human values”.12 In Jag Mohan’s case,13 Justice Krishna Iyer prepared the ground for ameliorating the death penalty cases, where he observed thus: “It is obvious that the disturbed conscience of the State on the vexed questions of legal threat to life by way of death sentence has sought to express itself legislatively, the stream of tendency being towards cautions partial abolition and a retreat from total retention”. The Supreme Court observed in Edigo Anamma’s case14 thus: “sought to reinforce reformists rationality of human punitive treatment thereby began to say for the first time. Even if the judiciary is not in favour of its imposition, it felt that its duty is to follow the law as it exists.15 In fact the Law Commission of India stressed the need for undertaking a study for a period of

8 Edigo Anamma, AIR 1974 SC P.299. 9 See for details Section 354 (3) of the Criminal Procedure Code. 10 In Australia such a demand persists and in USA there is a strong support in favour of death penalty after 9/11 tragedy that took place in USA. 11 See Foot Note 1. 12 See for details 35th report of Law Commission of India Para 53. 13 AIR 1973 SC P.947. 14 See Note 8. 15 See Justice Stanley Mosk of California in Yale Law Journal Vol. 82 No.6, P.1138.

157



(12 years) i.e., from 2000 to 2012.16 The UN General Assembly passed a resolution calling for a global moratorium of execution of death penalty with a view for its eventual abolition.17

4. Statutory Data on Case Laws Relied Upon

In a series of decided cases, the Supreme Court has laid down guidelines for imposition of death penalty and they can be summarized as :-

i) A real and abiding concern for the dignity of human life, postulates resistance to taking a life through law’s instrumentality. That ought not to be done save in the rarest of rare cases, when the alternatives option is unquestionably foreclosed;18 and

ii) In determining the culpability of an accused and the final decision as to the nature of sentence, a balance sheet to be drawn up and in doing so, the mitigating circumstances had to be given full weight so that all factors are considered before the option is exercised.19

5. The principle of rarest of rare cases, which have emerged can be stated in the light of the decisions rendered such as:-

i) Where there are no mitigating circumstances;20

ii) Where the accused would be menace and threat to the harmonious and peaceful co-existence of the society;21

iii) Murder of six members of a family at night for money;22

16 See Note 12. 17 See the proceedings of UN 2007-2008 Para 51. 18 Bachan Singh Vs. State of Punjab AIR 1986 SC P.898. 19 Machli Singh & others Vs. State of Punjab, AIR 1983 SC P.957. 20 Sunder Singh Vs. State of Uttaranchal (2010)10 SCC P.611. 21 C.Maniappan Vs. State of T.N (2010) 9 SCC P.567. 22 M.A.Antony Vs. State of Kerala (2009)6 SCJ P.899.

158



iv) Murderer in the position of domination and the position of trust as the head of the family murdering his wife and five children (aged 1 to 16) in his own house;23

v) Murderer as a paying guest for a continuous period of (4 years) brutally executing three defence less children and attempted murder of their parents, who survived the attack with multiple injuries; 24

vi) Wife in collusion with her husband murdered not only her step brother and his whole family including their children and parents and sister so as to deprive her father from giving property to her step brother and his family;25

vii) Murderer who raped and murdered a six year old girl (act reaching the lowest level of humanity);26

viii) Accused as a leader of the gang and committing murder in the most barbaric manner and also deterring others from challenging the Supremacy of the accused in the village;27

ix) Accused, while on parole in the case of murder of his first wife (sentenced to life imprisonment) murdering his second wife and daughter;28

x) Accused persons killing three adults and murdering two children in a property dispute in order to exterminate the entire family;29

xi) Murdering his friend and thirteen members of his family including small children for a flimsy reasons (visit of the accused and stay in the friend’s house being objected);30

23 Jagdish Vs. State of M.P. (2010)1 SCJ P.762. 24 Prajeeth Kumar Singh Vs. State of Bihar (2008)2 ALT (Crl) P.452 (SC). 25 Ram Singh Vs. Sonia (2007)3 SCC P.1. 26 State of UP Vs. Satish (2005)3 SCC P.114. 27 Holiram Bordali Vs. State of Assam (2005)4 SCJ P.40. 28 Saibanna Vs. State of Karnataka (2005)2 ALT (Crl) P.272 (SC). 29 Kran Singh Vs. State of UP (2005) 6 SCC P.342. 30 Gurmeet Singh Vs. State of UP (2006)1 ALT (Crl) P.53 (SC).

159



xii) Accused sacrificing the child of another for appeasing Goddess Kali to promote his fortunes on grounds of superstitious;31

xiii) Accused deliberately planned and executed two innocent children, wife and brother-in-law;32

xiv) Accused, a domestic servant, killing three children and attempted to kill the fourth member of his employer in order to take revenge for the decision to dispense with his services and robbery was also committed;33

xv) Accused persons firing on the occasion of marriage feast killing thirteen persons and injuring eight others and later killing the parents of a prosecution witness;34

xvi) The accused was accommodated by one of the victims (who was his aunt) despite her family who gave him an opportunity to make an honest living as a tailor committed murder of his relatives and well-wishers (including one young child)

The accused absconded from judicial custody and no remorse or rehabilitation;35

xvii) In Surender koli Vs. State of UP36 where the murder was considered grotesque, diabolically, revolting;

Dastardly manner so as to arouse intense and extreme indignation of the community and when the collective conscience of the community is petrified;

Or

Accused is a menace to society and continuous to be so, threatening its peaceful and harmonious co-existence.

Or 31 Sushil Murmu Vs. State of Jharkhand (2004)2 SCC P.338. 32 State of Rajasthan Vs. Kheraj Sharma (2003)8 SCC P.224. 33 Om Prakash Vs. State of Uttaranchal (2003)1 ALT (Crl) P.296 (SC). 34 Gurdev Singh Vs. State of Punjab (2003)2 ALT (Crl) P.240 (SC). 35 Praveen Kumar Vs. State of Karnataka (2003) 12 SCC P.199. 36 AIR 2011 SC P.970.

160



Where the court believes that the accused cannot be reformed or rehabilitator and continues with his criminal acts.

xviii) Death sentences can be converted to life imprisonment for detention for many years.37 It is desirable to provide an amendment to prescribe the number of years for such commutation.

6. Conclusion:

In conclusion, the following suggestions are made:-

i) ‘rarest of rare case’ may be Statutorily provided and must be treated as a question of fact;

ii) In all death sentence cases, there must be a final confirmation by the entire court of the Supreme Court and there must be unanimous verdict in such confirmation and

iii) In the exercise of pardoning power by the President, it must be on the basis of committee headed by retired Judges, so that there is consistency in the exercise of power and must be a power exercised judicially.

37 Dhananjaya’s case.

161



LABOUR LAW REFORMS: LABOUR CODE ON INDUSTRIAL RELATIONS ACT

Ankita Gehlot*1

Introduction

The major countries in the world inherited labour law system from the colonial period, with serious problems in terms of multiplicity of labour laws with serious inconsistencies. In India also many time the labour movement raised the demand of uniform labour laws, but no serious attempts were made by the government in this direction. Every new law and every new amendment increased the complexities further, rather than resolving it. Recently the NDA government also proposed to bring various amendments in existing laws and bring some new laws to end the existing problem prevailed in labour market. The Labour Law reform includes merger of 44 existing central labourlaws into five broad codes, dealing with industrial relation, wages, social security, industrial safety and welfare. "Labour Code on Industrial Relations act" is one f them which is proposed to be made after amalgamation of The Trade Unions Act, 1926, The Industrial Employment (Standing Orders) Act, 1946 and The Industrial Disputes Act, 1947. The stated objective of the government is to simplify the country's archaic labour laws relating to the registration of trade unions, conditions of employment, investigation and settlement of disputes and related matters.

Previous Bill on the same issue

The National Law Commission in its 1969 report had suggested cosmetic changes, which include changing the name of the Industrial Dispute Act to Industrial Relations Act so that it would not sound a discordant note and encourage smooth industrial relations. secondly the consolidation of the Trade Unions Act (1923), the Industrial Employment (Standing Orders) Act (1946), and the Industrial Disputes Act (1947).

*Amity law School, Jaipur (Batch 2014-19)

162



But instinct of the NLC recommendation report, no attempts were made to consolidate and simplify laws. After a decade the newly formed Janata Party government introduced the Industrial Relations Bill (IR Bill) (1978) in parliament, but it was later dropped. In 1982, the Congress government introduced another IR Bill. But due to no clarity on the attendant legislations to be brought in for the categories excluded from the IDA, that move also failed. Even after it many attempts and recommendations were made among which the proposed bill mainly concentrate on the National Law Commission Report 2002 discussed in next part. .

Need to Bring Changes in existing Labour Laws

As per the FICCI's Labour Policy Reform 2014 the existing laws are mainly concentrated to the manufacturing sector but do not address the problem relating to the service sector which presently account for 55 per cent of Gross Domestic Product. The outdated and inflexible nature of labour laws protects a handful of 7 percent of the workforce, seriously hampering employment generation capacity of the organised sector and most of the 10-12 million youth joining labour force every year are forced to join informal economy, where the working conditions are pathetic and earnings are also abysmally2. Even where legislation operates, large numbers of casual workers are unable to get legal protection. While trade unions seek a comprehensive labour legislation, employers seek more and more deregulations or exemptions from the law. Normally, a contested industrial dispute takes a minimum of 20 years to reach the finality of a conclusion. A survey of the disputes that come up for adjudication before labour courts shows that 90% of them had to do with the dismissal of individual workers3.

The Multicity of different state & central law (100&44 respectively) also create operational problem. Many provisions of labour laws are inconsistent to the provisions of other labour laws. 2 http://www.ficci.com/SEdocument/20301/FICCI-NOTE-ON-LABOUR-POLICY-REFORMS.pdf(Last Accessed 08-04-2015) 3 http://peoplesdemocracy.in/2014/0817_pd/ad-hocism-decisions-modify-labour-laws(Last Accessed 22-02-2015)

163



Absence in major required provision with present scenario also leads to loosing the investment from other foreign countries.

Second Law Commission Report 2002: Law on Labour Management Relations

As early as in 2002 also, the Second National Commission on Labour had suggested the formulation of labour codes similar to those in Russia, Germany, Hungary, Poland and Canada. The present draft is very similar to the report of law commission as well as FICCI Report. The law commission report proposes various changes which includes-

No Prior permission in respect of lay-off and retrenchment or shut down in an establishment of any employment size as prescribed by law. 2 months prior notice or notice pay in lieu of notice is made compulsory, in case of retrenchment or shutdown. The commission suggested increasing the rate of compensation in case of retrenchment where the organisation is running than a closed organisation. It would however recommend that in the case of establishment employing 300 or more workers where lay-off exceeds a period of 1 month such establishments should be required to obtain post facto approval of the appropriate government. The Commission recommends that the provisions of Chapter V B pertaining to permission for closure should be made applicable to all the establishments to protect the interest of workers in establishment which are not covered at present by this provision if they are employing 300 or more workers4.

The laws regarding Strike should be made tough. It can be called by the recognised negotiating agent only and that too only after it had conducted a strike ballot among all the workers, of whom at least 51% of support the strike. The participation of workers in management process is also felt.

The Commission had also recommended the Approaches in drafting the Law on Labour Management Relations which include that Firstly, the gender neutral expression 'worker' instead of the currently

4 https://nitekrawler.wordpress.com/tag/labour-laws/ (Last Accessed 12-01-2015)

164



used word 'workman'. Secondly, the law will apply uniformly to all such establishments. Thirdly, we recognise that today the extent of unionisation is low and even this low level is being eroded, and that it is time that the stand was reversed and collective negotiations encouraged. Where agreements and understanding between two parties is not possible, there, recourse to the assistance of a third party should as far as possible be through arbitration or where adjudication is the preferred mode, through Labour Courts and Labour Relations Commissions of the type be proposed later in this regard and not governmental intervention. A settlement enter into with recognised negotiating agent must be binding on all workers. Fourthly, the provisions must be made in the law for determining negotiating agents, particularly on behalf of workers. Fifthly, the law must provide for authorities to identify the negotiating agent, to adjudicate disputes and so on, and these must be provided in the shape of labour courts and labour relations Commissions at the State, Central and National levels. Finally, The Commission was of the view that changes in labour laws be accompanied by a well defined social security package that will benefit all workers, be they in 'organised' or 'unorganised' sector and should also cover those in the administrative, managerial and other categories which have been excluded from the purview of the term worker.

Amendment

The proposed Draft Code contains 107 sections and 3 schedules, which deals with various industrial relations issues such as registration of trade unions, standing orders, notice of change of terms of employment, strikes, lockouts, lay-offs, redundancy and site closures etc. The major changes are discussed below.

Registration of Trade Union

The present code provide for minimum requirement of 7 members in case of registration whereas the proposed code provide for minimum of 10 per cent of workers to apply for registering of a trade

165



union 5 . In the where the 10 per cent of workers are less than 7 minimum 7 members shall require. While, in a case where the 10 per cent of workers exceed 100, hundred workers shall be sufficient for registering the trade union in new draft code. Thus the new provisions would discourage formation of trade unions in India.

Retrenchment and Shut Down

The present Industrial Dispute Act provides the need to take permission of the government in case of retrenchment, layoff or shutdown unit of more than 100 workers, the government is going to raise these limit to 300 workers. The proposed amendments would allow the firms employing up to 300 workers to retrenchment, lay them off or shut down the unit without prior government prior approval6 but beyond the limit appropriate reason is required to take government approval. Though Three months of notice is made compulsory in case there is a plan for retrenchment, but it shall not apply to an “undertaking set up for the construction of buildings, bridges, roads, canals, dams or for other construction work7”.

In the case of the Closure of any undertaking sixty days prior notice is made mandatory 8 . Currently, at the time of a worker’s redundancy, if they have at least one year’s continuous service, the ID Act requires the employer to pay compensation equivalent to 15 days’ average pay for each completed year of service, or any part year in excess of six months. The Draft Code proposes to increase redundancy compensation to 45 days’ average pay for each completed year of continuous service, or any part year in excess of six months9.The firms having work capacity of less than fifty employs or seasonal industries are kept out of the preview of above discussed provision10.

5 Sec 5 of the Draft Bill 6 Sec 86 of the Draft Bill 7 Sec 88 of the Draft Bill 8 Sec 83 of the Draft Bill 9 sec 79 of the Draft Bill 10 sec 74 of the Draft Bill

166



Strikes and lockouts

The provision regarding strike and lockouts11 are made very rigid in the new law to prevent the happening of strike at frequent basis. Six weeks priors notice is made necessary for strike. No legal strike can be started where any judgement of tribunal or any court is pending on the same matter. A specific manner shall be prescribed for giving the notice otherwise it shall not be considered as valid as treat as breach of contract. "Go slow", "Gherao" and demonstration at the residence or any place of managerial level or any employers is also prohibited in the proposed code. Financing such illegal lock out or strike is also prohibited in the code. The penalty of twenty to fifty thousand shall be imposed in the case of illegal strike with/or one month imprisonment.

Judicial view

The amendments which are proposed to be brought by the Government regarding raising the limit of retrenchment was previously brought by the Government in Amendment act 1976. These provisions were challenged before the various High Courts and the two High Courts held the Section to be violative of the right guaranteed under Article 19(1) (g) of the Constitution imposing unreasonable restrictions on the right of the employer to retrench workmen, and invalid12. These provisions were also challenged by employers as being arbitrary and un-constitutional, and they were repelled by the Supreme Court of India in the Meenakshi Mills case13, Madura Coats case14, and Orissa Textiles case15.

Though the different changes brought by the Government in existing norms to boost up the economy with the help of foreign investment in the mean of Privatisation, Globalisation also received strong support from the higher judiciary. Various Challenges were 11 sec 71 to 73 of the Draft Bill 12 1994 AIR 2696 13 AIR1994SC2696, 14 AIR1995SC2200 15 78(1994)CLT511

167



made to the disinvestment of public sector units, but all these were rejected by the Court and the judicial reviews were made prohibited in the Balco Employees Union case16 and the Devans Modern Breweries case17.

The Higher judiciary set various Regulation in the matter of Retrenchment that it should be fair and not unjust. In the case of Umesh Chandra v Nagar Nigam18, the Allahbad High Court held that Termination Of a Workman, who has completed one year continuous service, will be illegal if neither any notice nor retrenchment compensation has been paid at the time of his termination. In another Judgement 19 the court observed that a termination without retrenchment compensation as required under ID Act will be set aside.

Conclusion

Fewer laws mean better monitoring, easy compliance and benefit to both industries and workers. In India the entire system of labour laws should be made simplified by clubbing together wherever possible and made less cumbersome to make the environment more employment friendly. The main objective of these reform in labour laws is required to make India a more attractive country for investments, and to enable manufacturing here to become globally competitive; cannot bypass this process.

162002 LLJ Vol. 1550 172004 11SCC26 182005 LLR 495 19U.P. State Road Transport Corporation V State of UP and others 2005 5 AWC4273All

168



INDIAN DOUBLE TAXATION AVOIDANCE AGREEMENTS

Raghav Bimal*

Meaning and Objectives of Double Taxation Agreements

Double taxation agreements basically means, ‘an agreement between two or more countries that reduces the amount of tax that an international worker or company must pay, so they do not have to pay tax twice on the same income: Under the double taxation treaty, any tax paid in the country of residence will be exempt in the country in which it arises1.’

There are basically two types of Double taxation agreements:

1. Comprehensive

2. Limited

Comprehensive double taxation agreements includes the subjects such as taxation of capital gains, income, real estate etc. while some others, as with the erstwhile communist countries, are limited to referring only to shipping and air transport, or to estates, inheritance and gifts.

Objectives

The rationale behind the Agreements to avoid double taxation is that Generally, the income which arises in one country and then gets transferred to other country in the form of dividends, profits , interests etc., is taxed by both the countries according to their respective domestic laws. If the taxation of such income is not coordinated, a heavier burden may be imposed on that income which would create enormous financial burden on the business entity, which in turn would lead to many serious repercussions on the economy of the country.

With clear and legally fair tax treaties, the taxpayer of a country, doing business in other country would know his tax liabilities *3 rd Year, B.A., LL.B.(Hons.), Amity Law School, Delhi ( IP University ) 1 http://dictionary.cambridge.org/dictionary/business-english/double-taxation-treaty (Last Access 13-06-2015)

169



in the other country in which he is doing business and therefore, he could plan on the finances of the company accordingly. Another benefit for the taxpayers from the Double taxation treaties is that a tax treaty, to a great extent avoids discrimination against the foreign tax-payers or the permanent establishments in the source countries vis-à-vis domestic tax payers.

Another objective of double taxation agreements to provide for tax claims of two governments both legitimately interested in taxing particular source of income. The tax claims made by the governments can be dealt in two ways, firstly, either the whole claim is assigned to one of the government or secondly, by systematic rules and regulations on the basis of which tax claim would be shared between them.

The other objective of double taxation agreements is to prevent Tax avoidance by exchanging information.

The government of various countries aims to avoid double taxation of an entity by the following means:

Clarifying where the country of source may tax non-resident in respect of certain types of income ;

Limiting rate of tax a country of source may apply to certain types of income ; and

Providing foreign tax credits in the country of residence against taxes paid in that country on income having source in the other country.

Scope of DTAs2 :

Every country may need a treaty with every other country to encourage flow of investment and trade. However some jurisdictions do not tax foreign sourced income, and thus, do not feel the need for a tax treaty as for example Hong Kong has a policy of not imposing any tax on foreign sourced income. Therefore, it can be observed that the scope of the agreements varies from country to country, its economic policies 2 Some parts taken from Indian Double Taxation agreements and tax laws, D.P Mittal, 6th edition

170



and economic and trade relations with other contracting country. In some cases, agreements cannot be termed strict sensu tax treaties because there is no tax levy as such in those countries which needs to be avoided. Therefore, such conventions may more appropriately be described as tax agreements rather than tax treaties.

Methods for Avoidance of Double Taxation

There are basically two methods of avoidance of double taxation,

1. Tax exemption

2. Tax credit method.

Both of these methods can be divided into two different systems: the “full exemption” and “exemption with progression”- “full credit” and “ordinary credit”. These methods have different results on the net taxes payable by any corporation or an individual person.

Allocation of Jurisdiction

A double taxation agreement allocates jurisdiction between the contracting states for the purpose of levy of tax and limits the rate of tax leviable by source state3.

Jurisdiction to tax business income is allocated to the state where the enterprise has permanent establishment;

jurisdiction to tax dividend, interests, and royalties to the state of residence of the recipient and

Capital gains to the state where the property is situated.

Detailed rules regarding the jurisdiction of taxing a business entity are discussed in the OECD UN model, For example, article 6 on the OECD UN model deals with taxation of income from immovable property, article 7,8 and 9 deals with taxation of business profits, article 10 and 11 deals with dividends and interests etc.

3 Indian Double Taxation agreements and tax laws, D.P Mittal, 6th edition

171



In a nutshell, the general rules regarding the jurisdiction are as follows4:

Income for the business is taxed- a) Only in the residence state, if the business undertaking carries

no activity in the source state;

b) Only in the source state, if there is fixed place of business, i.e., permanent establishment and to the extent it is attributable to that place;

Income from immovable property arising to a non-resident is taxed primarily on the state of its location

Income from movable property such as dividends, interests or royalty are primarily taxed in the resident state, but the source state may also impose a reduced tax.

Income from personal exertion such as director’s fee, service fee, pension etc is taxed according to various rules, with varying solutions.

The Source State is where the income is physically or economically generated, whereas the resident state is the state where the income is habitually or permanently consumed or otherwise utilized.5

The primary right of the source country to impose tax on business profit and income from immovable property has been well accepted principle of almost all tax agreements.

Rules for distribution of revenues between contracting States

The distributive rule determine how much revenue each state will receive from the income arising from a particular transaction or activity. The determination is made by the use of expressions such as

4 http://www.ukessays.com/essays/accounting/double-taxation-avoidance-agreement-accounting-essay.php (Last Access 08-05-2015) 5 Indian Double Taxation agreements and tax laws, D.P Mittal, 6th edition

172



“Shall be taxed only in...” Or “may be taxed in the State of source” [as mentioned under article 23 of OECD agreement].

For distribution of income and tax between the contracting States, different rules apply according to the category. However, sometimes certain difficulties in determining the categories, in this case, the agreeable solution to the dispute is reached through the methods mentioned in the treaty.

In CIT v. R.M Muthaliah6 the Hon’ble Karnataka High Court decided over the validity of agreement between the government of India and Government of Malaysia which barred Indian tax authorities from taxing income in respect to certain categories as referred to in certain articles of the agreement.

The Karnataka High Court held that ‘if there was recognition of the power of taxation with the Malaysian Government, by implication it takes away corresponding power of Indian Government. The agreement was thus to operate as a bar on the power of the Indian Government to tax and that bar could operate on Sections 4 and 5 of the Indian Income Tax Act, 1961’.

In another matter of CIT v. P.V.A.L. Kulandagan Chettiar7, the Supreme Court held that,

“Where the liability to tax arises under the local enactment the provisions of section 4 and 5 of the Income tax Act, 1961 provide for taxation of global income of the assessee chargeable to tax thereunder. It is subject to the provisions of the agreement entered into between the Central Government and the Government of a foreign country for avoidance of double taxation as envisaged under section 90 to the contrary, if any, and such agreement will act as an exception to or modification of sections 4 and 5 of the Income tax Act.”

Double taxation agreement and policy of Government of India.

6 [1993] 67 Taxman 222 7 [2004] 137 Taxman 460

173



India, as of today has signed a total of 77 DTAAs, and is in process of negotiating another 12 treaties with autonomous territories. The first DTAA signed by India was with Greece, in 1965.

India is also a signatory to 2005multilateral SAARC avoidance of double taxation convention.

The constitution of India does not render the treaties to which India is a party the law of the land. Obligations arising therefrom, therefore, are not judicially enforceable, unless backed by legislation8. A treaty is not part of the law unless and until it has been incorporated into the law by legislation9.

Section 90 of the Indian Income tax Act, 1961 is such provision of the Act which allows Central Government into an agreement with any country to avoid double taxation of Income, exchange of information, recovery of taxes and to make any provisions which may be necessary to implement the agreements entered into by Government on behalf of the State. Therefore because of this section, the concluded agreements are incorporated under Indian Income Tax Act, and also, its enforceability and applicability have the legislative backing.

In case of conflict between domestic laws and provisions of treaty, the latter prevail.

However, the binding nature of treaty has some exceptions. Some of them are:

1. A domestic tax legislation, which is implemented after the signing of the treaty may override the provisions of the treaty whenever there is irreconcilable conflict.

2. The parliament has the power to unilaterally cancel the tax treaty by the means of amendment of the law, subsequent to Signing of the treaty.

8 State of West Bengal v. Jugal Kishore, AIR 1969 SC 1171 9 Pan-American Airways Inc. v. Dept. of Trade, [1976] 1 lloyds Rep. 257

174



In the matter of Collco Dealings Ltd. V. IRC10, the House of Lord observed, ‘After a treaty has been made circumstances may alter. It may be reasonable to take unilateral action in the expectation that the other party would not object.’

The principle followed in India is to tax residents on their global income and tax non-residents on their Indian source income. However, unilateral tax credits for foreign taxes paid are allowed to residents under section 91 of the Indian Income Tax Act.

The policies adopted by Indian Government in regard to double taxation treaties are 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 co-operate with foreign tax administration

The Main feature of the Indian tax avoidance agreements is that those which were concluded prior to 1976 provide for limited right of taxation in respect of investment income in the country of source. In the case of those which has been concluded recently, the source rule or doctrine of force of attraction applies in respect of income by way of interest, royalty and technical service fee.

Tax revenues are sacrificed for the economic and industrial development of country, so as to permit flow of technology in India. In an effort to achieve highest possible incentive effect, the Indian government is prepared to grant full exemption of

10 [1961] 1 All ER 762

175



certain items of income and capital. Thus it does through the double taxation agreement and unilateral taxation measures.

Conclusion

As it is clear from the above mentioned facts and figures that India has signed various double taxation avoidance agreements with almost all the major countries of the world, and India follows the OECD model for implementation and formation of treaties. However with changing times, Advancement of technology and globalization, the basic aim of the tax treaties which currently focuses more on avoidance of double taxation, should be shifted to increasing exchange of information between nations, so as to curb tax evasion and administrative cooperation.

Also, some treaties which were signed long ago and are no more in practical use should be reviewed, particularly with respect to taxation rights, and rates of taxation.

176

Documents

Volume 3, Issue 4, December 2015 INDIAN JOURNAL OF LEGAL Pijlp.in/ijlp/imageS/IJLP-Volume-3, Issue-4,-Dec-15.pdf · OLUME INDIAN JOURNAL OF LEGAL PHILOSOPHY ISSN : 2347- 4963; IMPACT