Rostrum's Law Review, Volume I, Issue II

ISSN: 2321 - 3787
PUBLISHED QUARTERLY VOLUME: ONE ISSUE: two YEAR: 2013
ROSTRUMs LAW REVIEW

ISSN: 2321 - 3787
Second Issue
SPEAK UP PUBLICATIONS A DIVISION OF ALKEMIA LEGAL EDUCATION VENTURES PVT. LTD.
ROSTRUMs LAW REVIEW

Volume : I Issue: II Second Issue - August - 2013
Mode of Citation: RLR (2) 2013
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Prof. (Dr.) G. P. Tripathi

Director, MATS Law School, Raipur, Chhattisgarh, India Managing Editor
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Editor, I Hate Criminal Law
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MESSAGE FROM THE EDITORIAL BOARD

The editorial team of Rostrums Law Review is proud to announce the publication of this issue of Rostrums Law Review. This Journal provides a glimpse into a few of the many high quality research activities conducted by the talented researchers in the field of law. The Journal is a compilation of outstanding research papers from numerous disciplines of law submitted by students, faculties and legal professionals who have been involved in research, scholarly, and creative activities. We would like to thank Prof. Dr. G. P. Tripathi again for giving his valuable suggestions and time for the purpose of reviewing the articles. We would also like to thank all the contributing authors for providing such a rich variety of outstanding research articles on a broad range of exciting topics. If you have any questions or comments about the Journal, or would like to receive a printed copy of the most recent volume of the Journal, please contact the editorial team by sending an email to journal@rostrumlegal.in The Journal is also available online, please visit the following website:
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Rostrums Law Review
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Volume I | Issue I | MAY 2013 Alkemia Legal Education Ventures Pvt. Ltd.
TABLE OF CONTENTS
1. ARTICLES INCEPTION OF EPISTOLARY JURISDICTION Abhimanyu Chopra 1 136 1
PIGS FLY THE VALIDITY OF GENE PATENTING VIS A VIS THE MYRIAD AND NOVARTIS PATENT CASE Aniket Pandey 11 RIGHT TO EDUCATION- IS IT AS BRILLIANT AS IT IS PORTRAYED? Harimohana N & Eva Bishwal 24
COMPARATIVE ADVERTISEMENTS: IPR INFRINGEMENT VIS--VIS BALANCED APPROACH Hitesh Agrawal 30

ROLE OF ICRC IN PROTECTION OF SICK AND WOUNDED
Smt. Jayashree M & Dr. T. R. Maruthi Romit Raja Srivastava IS THE INTERNET THE NEW WILD WILD WEST? Saad Saeed MISUSE OF GENDER BIASED LAWS Shambhavi Mishra INTERNAL DISPLACEMENT AND GENDER BASED VIOLENCE Sharath Raj THE DISPUTED NAXALISM IN THE PRESENT SCENARIO Shayamvar Deb & Madhurjya Jyoti Gogoi THE CRIMINAL LAW (AMENDMENT) BILL, 2013 - A CRITICAL ANALYSIS Vaibhav Dixit & Shrey Singh SEXUAL ABUSE OF CHILDREN AND THE CONSTITUTION OF INDIA Soumya Prakash FOOD AND SECURITY: THE TWO ASPECTS OF MID-DAY MEALS Tejaswini Ranjan
44 53 64 76 82 91 111 120 128
THE CONCEPT OF COLLECTIVE MINISTERIAL RESPONSIBILITY IN INDIA- THEORY & PRACTICE
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TABLE OF CONTENTS
2. BOOK REVIEW ECONOMIC INTEGRATION IN SOUTH ASIA: CHARTING A LEGAL ROADMAP Mohammad Rubaiyat Rahman 137 - 140 137
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INCEPTION OF EPISTOLARY JURISDICTION

ABHIMANYU CHOPRA1 ABSTRACT
he concept of Epistolary Jurisdiction is one of the most important innovations in the Indian Judicial process. It emerged in the late seventies of the twentieth century in response to the need to make judicial process more accessible to poor, down trodden,
socially and economically disadvantaged section of the Society. It is primarily the judges of the higher judiciary who have innovated the concept of epistolary jurisdiction or in laymans terms Public Interest Litigation through Judicial Activism while exorcizing the jurisdiction for dispensing judges to the poor and downtrodden. The concept of Judicial Activism came into prominence in India during the second half of the twentieth century. During this period the Doctrine of Judicial Review had assumed a new complexion, which is popularly known as Judicial Activism. The old orthodox and mechanistic theory that a judge never creates law and only declares law has been replaced by the concept of Judicial Activism. Thus, the Judicial Activism opened up new dimension for the judicial process and has given a new hope to the justice- starved millions opening scope of judicial redress to the hitherto before passive suffers. The concept of Public Interest Litigation had its origin in the American legal system during the period of 1960s. It has now been recognized in many parts of the world. The seed of Public Interest Litigation was initially was sown in India by Justice Krishna Iyer in 1976 in Mumbai Kamgar Sabha v. Abdulbhai1. In that judgment Justice Iyer did not use the terminology Public Interest Litigation. But in Fertilizer Corporation Kamgar Union v. Union of India2, Justice Iyer used the terminology Public Interest Litigation. In this judgment he used the expression epistolary jurisdiction. The Honble Supreme Court held that the procedure had to be relaxed to meet the ends of justice. This article would give the insights in furtherance of Public Interest Litigation in India since the inception of the concept.
The author is a practicing advocate at Supreme Court of India, New Delhi and can be reached at abhimanyu.chopra@hotmail.com
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Volume I | Issue II | AUGUST 2013 Alkemia Legal Education Ventures Pvt. Ltd.
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z PUBLIC INTEREST LITIGATION- THE BEGINNING The term Public Interest Litigation (PIL) means the litigation which is beneficial to general public. It means action necessarily taken for public purpose. The Supreme Court of India in Janata Dal v. H.S. Chowdharv3, observed that lexically the expression public interest litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. The word Litigation means legal action initiated in a Court of law with the purpose of enforcing right or seeking remedy. Therefore, the term public interest litigation means a legal action initiated in a Court of law for the enforcement of public interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liberties are affected. The concept of public interest litigation had its origin in the American legal system during the period of 1960s. The Council for Public Interest Law set up by the Ford Foundation in the United States of America stated that Public Interest Law is the name, which was able to provide legal representation to previously unrepresented groups. Such efforts had been undertaken in recognition that the ordinary market place for legal services failed to provide such services to significant segments of the population and to significant interests. Such groups and interests include the poor, environmentalists, consumer, racial and ethnic minorities and others. Thus, the concept of public interest litigation evolved in the American legal system was in order to provide legal representation to previously unrepresented groups. It has now been recognized in many parts of the world. The seed of the Public Interest Litigation was initially sown in India by Justice Krishna Iyer in 1976 in Mumbai Kamgar Sabha v. Abdul Bhai 4 . However, in that Judgement Justice Iyer did not use the terminology Public Interest Litigation. But in the celebrated case of Fertilizer Corporation Kamgar Union v. Union of India5, the terminology Public Interest Litigation was used by Justice Iyer. In this particular judgement he used the expression Epistolary Jurisdiction. The Hon'ble Supreme Court held that the procedure had to be relaxed to meet the ends of justice.
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z The concept of Public Interest Litigation took its roots firmly in the Indian Legal System only after the period of post emergency. During the period of emergency in 1975 the rule of law suffered a partial eclipse and anyone who opposed the action of the government was susceptible to police action. This resulted in spate of petitioners in the Hon'ble High Courts and the Hon'ble Supreme Court under Articles 226 and 32 of the Constitution respectively in the form of Habeas Corpus. The Government of India argued that Article 21 of the Constitution guaranteeing right to life had been suspended for the duration of emergency. The Government of India wanted what is called a Committed Judiciary and accordingly Justice A.N. Ray was appointed as the Chief Justice of India by superseding three senior colleagues Justice Shelat, Justice Hegde and Justice Grover. The Apex Court lost its credibility when in A.D.M. Jabalpur v. Shrikant Shukla 6 , popularly known as Habeas Corpus Case, totally abandoned its responsibility towards the protection of individual liberty. The post-emergency Court had to make a great effort to re-establish its institutional credibility.7 During the last three decades the Indian judiciary has been playing a very creative role in the administration of justice, which is the departure from the committed judiciary of the past to the activist judiciary of today. This has been possible due to the creative role played by some of the judges like Justice Krishna Iyer, Justice P.N.Bhagwati, Justice A.M. Ahmadi, Justice Kuldip Singh and Justice S.P. Bharusha under the principle of public interest litigation that was innovated by the Apex Court through judicial activism. The innovation of this type of litigation by the Court was a dire need in order to vindicate public interest where fundamental and other rights of the people who were poor, ignorant or in socially or economically disadvantageous position and was therefore unable to seek legal redress. The Courts have stressed the importance of non-adversarial jurisprudence, which would deal with cases relating to the have-nots. The purpose of the Public Interest Litigation is to promote the public interest which mandates that violation of legal or constitutional rights of poor, down trodden, socially and economically disadvantaged sections of the society should not go unredressed. In this context Justice P.N.Bhagwati observed8. Public interest litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation, but it is intended to promote and vindicate public interest which demands that
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z violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically backward position should not go unnoticed and unredressed The Court has liberalized the strict rule of Locus Standii under the principle of public interest litigation with a view to facilitating the common man who is not in a position to approach the Court for vindication of their rights owing to socially and economically disadvantaged position. The traditional rule of standing is that only the person aggrieved can move to the Court for judicial redress. With the advent of public interest litigation this traditional strict rule of standing has been broadened and liberalized. As a result of this any person acting bona fide having no personal gain or political motive can move the Court alone for the enforcement of constitutional or legal rights of socially or economically disadvantaged sections of the immunity 9 . The Supreme Court of India viewed that the strict rule of standing has adversely affected in the developmental activities and also to bring about socio-economic change. Therefore, the rule of standing needs to be liberalized in order to meet the challenges of time. The cause of justice cannot be allowed to overlook on the technical ground of Locus Standii or absence of personal loss or injury. The Supreme Court and the High Courts throughout various judgments have widely enlarged the scope of public interest litigation by relaxing the rule of standing. The Court even proceeded without clear framework. In Sunil Batra v. Delhi Administration10, the Supreme Court accepted a letter written by one Sunil Batra, a prisoner from Tihar Jail complaining inhuman torture by the Jail Warden to another prisoner serving life term in the same jail. The Court treated the letter as Writ Petition under Article 32 of the Constitution. Delivering the judgement the Court issued directions inter alia for taking suitable action against the erring official. The most important pronouncement of the Supreme Court in the field of public interest litigation involving the question of Locus Standii is S.P. Gupta v. Union of India11, popularly known as Judges Transfer Case. In this case the Locus Standii of the petitioners was challenged. Delivering the judgement the Court held that,
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z Where a legal wrong or legal injury is caused to a person or to a determinate class of persons and such persons are unable to approach the Court due to socially or economically disadvantaged position, any member of the public acting bona fide and having sufficient interest in the matter can maintain an application for appropriate directions or orders.12 The decision of this case had made a far-reaching impact on the question of Locus Standii. Similarly, the Supreme Court gave historic judgments in Akhil Bhartiya Soshit Karmachari (ABSK) Sangh v. Union of India13, Peoples Union for Democratic Rights v. Union of India14 and Bandhua Mukti Morcha v. Union of India15 conferring standing to the petitioners. The scope and ambit of public interest litigation is to assure socio-economic justice to the poor and weaker sections of the community. It is the powerful weapon in the hands of poor masses that constitute low visibility area of humanity Tor combating exploitation and injustice. Public interest litigation is not in the nature of adversary character, which is totally different from the ordinary traditional litigation. In public interest litigation it is intended to promote and vindicate public interest contrary to ordinary litigation where enforcement of the right of one individual against another is intended. Hence, it can be stated that the public interest litigation is a highly effective weapon in the armory of the judiciary to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them socio-economic justice.16 It has been stated above that the public interest litigation is the outcome of judicial activism. The need for innovation of public interest litigation in India arose due to failure of discharging the constitutional obligations as well as the voluntary abdication of powers by the executive and the legislature. In such a situation judicial pronouncements have brought a sense of relief to people even at times when the executive and the legislature appeared to have approached a dead end. Activism in the Court has taken on new dimensions through public interest litigation. Judges have begun to enter realms of decision making previously reserved for the legislative or executive wings of the government. This assumption of powers by the judiciary was not for vain glory. Self-abdication of powers and the rampant corruption among the executive and the legislature forced the people to bring the issues before the Court. The Court had no option but to interfere in the day to day affairs of the executive and the legislature through the principle of public interest litigation.
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z The subject matter of the public interest litigation initially began with the conditions of prisoners where the Court took steps in broadening the scope of jurisdiction and relaxing procedural barriers. Lack of access to justice had been the major obstacle preventing those confined illegally or in terrible conditions from approaching the Court. By invoking Article 39A of the Constitution and discussing the need for legal aid, the Court responded to the horrific situations brought before it 17. The first public interest litigation order in the Supreme Court came in a habeas corpus case18 filed by an advocate on the basis of a news report in the matter of speedy trial of under trial prisoners who had been imprisoned for longer than the maximum sentence that could be imposed upon conviction. On being apprised of the facts of the use the Supreme Court relaxed the procedural rule that a habeas corpus petition can only be filed with a power of attorney or by a close relative. The distinction between a letter petition and public interest litigation has never been fully clarified because of the connection between habeas corpus petitions and public interest litigation19. The Courts have always allowed letters to be sent for habeas corpus matters, but it is only with the advent of public interest litigation that the letter petition was admitted for all kinds of relief. The letter became the key to gaining access to the Court, and often the Court was urged to give orders covering a whole class, be they prisoners or under trials. From the underlying principle of public interest litigation it transpires that the concept of Public Interest Litigation innovated by the Court to give relief to the poor and vulnerable sections only. The Court intended that public interest litigation will be the mechanism through which the grievances of the poor and down trodden could be redressed. But in practice public interest litigation has evolved beyond these parameters. Cases involving broad public interest issues began to come within the scope of public interest litigation. It has now entered into the domain of general public interest issues like environmental pollution, complaint relating to consumer, governmental accountability and the conduct of examinations that fall within the category of civic participation rather than the issues of direct concern for the poor. The Court is now engaged in public interest cases and more and more lawyers, nongovernmental organizations, journalists, social activists are corning to the Court with grievances of the poor and illiterate. The Court is not only giving relief to the poor litigants but also provides an effective check against governmental apathy and negligent attitude of the executive
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z officials by making them accountable for their lapses or arbitrary acts. Further the Court pronounced judgments giving effective orders in the area of environmental pollution and degradation, violation of human rights, preservation of historical monuments, directing the eviction of unauthorized occupation of government bungalow which was brought before the Court by way of public interest litigation20. The Court in many cases has entertained petitions without court fees or affidavit or taken suo motu action on the basis of news items published in the news papers. The Court has taken a goal-oriented approach in the interest of justice. In this context Professor Upendra Baxi observed that the Supreme Court of India for the first time became a Court for Indians. He preferred to describe this legal phenomenon as Social Action Litigation. However, the Court has got to be careful at the time of entertaining petitions for Public Interest Litigation so that busy bodies, meddlesome interlopers or officious interveners cannot take the opportunities of personal gain in the name of public interest. The judges and the lawyers must be careful towards avoiding over-use of Public Interest Litigation. Though the decision of the Courts relaxing the strict rule of Locus Standii have been welcome greatly at the same time the Court must not get involved in non-justifiable issues like policy making which is reserved for the legislature. The Court is not only showing positive response in all Public Interest Litigation brought before it by the petitioners, there are instances of dismissal of public interest litigation by the Supreme Court and the High Courts. The judgement in Sachidanand Pandey21 by the Apex Court has had far-reaching effects in support of the dismissal of a petition as unsuitable for adjudication by the Court. Similarly, the Apex Court in S.P. Anand v. H.D. Devegowda 22 observed that in public interest litigation the petitioner is not entitled to withdraw his petition at his sweet will unless the Court sees reasons to permit withdrawal.23 The author has only selected the topic for research considering the fact that public interest litigation has been able to bring justice within the easy reach of poor and disadvantaged sections of the community. The Court has innovated the concept timely which has made an indelible effect on the Indian judicial process. The Court has given new and liberal dimension to the law of standing with a view to bring the law into service of the poor and the down trodden. Many cases relating to poor and vulnerable sections of the community would have gone unredressed without public interest litigation. It emerged as a boon to them to high light their sufferings 24.
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z Though procedure existed in the Civil and Criminal Codes for presentation of petitions but endemic problems of long pending cases, high costs and lengthy process have discouraged the people. Therefore, the people have started to invoke the jurisdiction of public interest litigation through which efficient and expeditious justice have been achieved. But the public interest litigation is not an alternative to the existing system. It is an input which ameliorates some of the evil of the mainstream system thereby alleviating the suffering of the litigating public. CONCLUSION Indeed, the Court has innovated the strategy of Public Interest Litigation for the purpose of providing access to justice to mass people who are denied their basic human rights. Public Interest Litigation provides a means through which the voices of people are heard on the Judicial Forum. Since the Constitution of India has not expressly provided for the concept of Public Interest Litigation the judiciary, particularly the Supreme Court of India has innovated the concept of Public Interest Litigation while exercising the jurisdiction for dispensing justice to the poor and the down trodden. It is primarily the judges who have innovated this type of litigation through the concept of Judicial Activism. This has opened new vistas for taking the justice nearer to common man. In India the need for judicial activism evolved in order to activate the executive and the legislature due to voluntary abdication of their powers as well as failure to discharge their constitutional obligations. Therefore, the judiciary had to interfere in day to day affairs of the executive and the legislature for their wrong doings. This exercise of authority of the judiciary is not for vain glory but it is in discharge of the constitutional obligation. When the executive and the legislature were apathetic and failed to discharge their constitutional obligations the judiciary had no option but to direct the two organs to perform their duties. If the other wings of Indian democracy perform their duties and obligations, then there will be no need for judiciary to advise them. It has now become a tendency of the government to avoid to take decision on a politically sensitive issue by passing it to another wing, the latter not being expected to make that decision. The issues remain unresolved forcing the people to bring it to the Court. The Court does not seek
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z an expanded role for itself; rather it has been forced to pronounce judgements on some of the gravest politico-legal and socio-economic issues like Mandal agitation and the Ayodhya crisis. Rampant corruption in high places stands as a great menace in India. Many executives, bureaucrats and influential politicians have been found involved in various scams and scandal as unearthed by the premier investigating agency in the country. The Court had to intervene to curb corruption in life. Had the judiciary also been inactive, even the sensitivity that has got aroused against corruption would have ended. Critics of judicial activism have raised their voices that the judiciary by becoming over active has entered into the domain of the executive and the legislature. Intervention in the everyday administrative affairs demoralizes the executive wing of the government. It is alleged that the judiciary is running the country by proxy. However, it should be kept in mind that the need of the hour is cooperation, and not confrontation among the three organs the legislature, the executive and the judiciary. In India it is the Constitution which is supreme. The above three organs are the creation of the Constitution. Therefore, they should act harmoniously. Though the Supreme Court of India has a place of primacy in the constitutional scheme, it can be rendered ineffective by the Parliament or even by the executive. The Supreme Court only passes judgements and orders but it has got no agency of own to enforce these. It has to depend upon the executive for this purpose who may delay in executing the orders of the Court. The Parliament also can give retaliatory answer to the Supreme Court by means of amending the Constitution under Article 368 as provided by the Constitution. In fact, Judicial Activism is need of the hour. The executive inaction and ill action have come to such a sorry state that them is no option but to intervention by the judiciary. The judiciary through Judicial Activism has rendered commendable service to the nation. Indeed, it can be asserted that Judicial Activism is not a bane but a boon to the people of India. In fact, public spirited citizens having faith in rule of law are rendering a great social and legal service under the principle of Public Interest Litigation. They cannot be overlooked on the technical ground of Locus Standii or absence of personal loss or injury. The view of the Courts in this branch of jurisprudence is highly appreciable. The Court has come forward to relieve the people, those who are subjected to denial of access to justice owing to their social and economic disadvantaged position. The Court has conferred Locus Standii to a person or body of persons
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z acting pro bono publico and having sufficient interest in the proceedings to approach the Court for vindication of the rights of poor and the down trodden. During the last three decades the Supreme Court and the High Courts have tried their best to bring law into the service of the poor. The Courts have acknowledged that the judiciary too has accountability towards the people of the country like the executive and the legislature. The Court does not insist upon the old rule of Locus Standii so that the administration of justice is done in the interest of all. The Court viewed that the rule of standing has to be liberalized in order to meet the challenges of time and need. Though the decisions of the Courts relaxing the strict rule of Locus Standii have been welcomed greatly, at the same time judges and the lawyers have to be careful towards avoiding over use of Public Interest Litigation.
REFERENCES:
1 2
[1976] SC 1455 (AIR). [1981] SC 344 (AIR). 3 [1993] SC 892 (AIR) 4 [1976] SC 1455 (AIR) 5 [1981] SC 344 (AIR) 6 [1976] SC 1207 (AIR) 7 ibid 2. 8 (Peoples Union for Democratic rights and Others v. Union of India and others) [1982] SC 1473 (AIR) 9 ibid 3. 10 [1980] SC 1579 (AIR) 11 [1982] SC 149(AIR) 12 ibid 5. 13 [1981] SC 212 (AIR) 14 [1982] SC 1473 (AIR) 15 [1984] SC 802 (AIR) 16 ibid 1. 17 Sangeta Ahuja, People, law and Justice (Volume-I, New Delhi 1997) pg. 20-21. 18 (Hussainara Khatoon and others v. Home Secretary, State of Bihar) [1980] 1 SCC 91 19 ibid 5. 20 ibid 7. 21 (Sachidanand Pandey v. State of West Bengal) [1987] SC 1109 (AIR) 22 [1996] 6 SCC 734 23 ibid 4. 24 ibid 7.
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PIGS FLY THE VALIDITY OF GENE PATENTING VIS A VIS THE MYRIAD AND NOVAR TIS PATENT CASE
ANIKET PANDEY* Undue difficulty in gaining patent protection will deter investment by reducing the prospect of a reasonable return. This is not in the interests of patients, or of industry. On the other hand, too free availability and excessive breadth of protection will give undue reward for prosaic contribution and may inhibit the speed of exchange of basic knowledge and the likelihood of development of useful products. 1 INTRODUCTION
enes are the physical units of heredity that parents automatically transfers to children. They are composed of a molecule termed deoxyribonucleic acid (DNA). DNA is composed of sequences of components known as nucleotides.3 Genes are cardinal as
they consist of blueprints for the body engaged in formulating proteins. It is proteins that are responsible for growth of our bodies.4 Genes are chemical compounds qualified as compositions of subject matter to meet patent standards. Amongst the parameters of patentability determined by the US Patent Act, there are various exceptions as scrutinized by the courts. A naturally occurring or a preexisting substance of nature is not patentable, per se. However, the courts have ascertained that a product of nature may be patentable if significant artificial alterations are made. By isolating, purifying or otherwise altering a naturally occurring product, an inventor may obtain a patent on the product in its altered form.5 Thus, one cannot patent a naturally occurring gene or protein as it exists in the body, but one can patent a gene or protein that has been isolated from the body and is useful in that form as a pharmaceutical drug, screening assay or other application.6 The practice of granting patents on genes, although upheld by the courts, has come under criticism and scrutiny by some legal scholars, scientists and politicians. The subject of gene
The author is student of BBA LLB (Hons.) Corporate Laws program at University of Petroleum and Energy Studies, Dehradun. He can be reached at aniketpandey53@gmail.com
*
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Volume I | Issue I | AUGUST 2013 Alkemia Legal Education Ventures Pvt. Ltd.
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z patenting includes several ethical, legal, and economic constituents. Although not mutually exclusive, brief understandings of several issues are as follows. ETHICAL ISSUES INVOLVED IN GENE PATENTING There is a notion that gene patents allow outsiders ownership of another persons genetic constitute, often without their consent or knowledge.7 This concern has extended to complaints that patients no longer possess their own bodies and doctors are restrained from testing for various diseases.8 It is debated that patents obstruct access to testing process because gene-patent holders can ascertain any use of their gene and they can restrict a doctor from testing a patients blood for a particular genetic mutation and can forbid anyone performing research to enhance a genetic test or to come up with a gene therapy based on that gene. 9 This comprehended constraint on research and testing options are the problems to antagonists of gene patents. 10 Indeed patents on peculiar genetic information determines and limits the medical usefulness of the information and impedes or prevents far-flung research on the disease, the traditional pathway by which medical knowledge is encouraged, advanced and shared.11 However, some experts disagree. According to them, the courts have consistently taken the position that a person does not own any cells or tissue once they are outside the persons body. 12 There exist no such evidence of patients unable to utilize existing genetic tests because of patents. Rather, they maintain, it as a financial issue related with the monetary value of health care and/or an issue of profits for the doctor or clinical geneticist and pathologist wishing to administer tests patented by other inventors.13 Similarly it is established that there is little quantitative evidence so far as negative impact of patents on scientific research activity is concerned.14 The disclosure obligations of the patent system may better facilitate the objective of encouraging and advancing the diffusion of knowledge and eliciting social returns than the substantial legal alternative and trade secret protection.15 LEGAL ISSUES AFFECTING VALIDITY OF GENE PATENTING Eminent jurists and academicians contend that genes are products of nature and hence discoveries and that do not meet the criteria necessary to obtain a patent.16 As contend the useful
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z properties of a genes sequences are not ones that scientists have invented, but instead, are natural, inherent properties of the genes themselves.17 The fact that the gene has been isolated is considered a technicality by experts who subscribe to this view.18 Courts have upheld gene patents if they meet the essential requirements of the US Patent Act. According to some analysts, the law grants patents on discoveries despite what is repeatedly confirmed by the antagonists of gene patenting, patent law applies equally to discoveries as to inventions. In fact, Article 1, Section 8 of the U.S. Constitution explicitly pertains to discoveries, as does the Patent Statute: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.19 As Bendekgey and Hamlet-Cox has pointed out, numerous biotechnology products are built upon compounds existing in nature including such therapies as interleukins, interferons and insulin.20 Similarly, a patent on penicillin was granted to Alexander Flemming who isolated and purified the drug from mold, a naturally occurring substance.21 The quality of the gene patents awarded by the USPTO has always been a concern for some experts. A study reveals that 38% of the claims contained in 74 patents on human genetic material were debatable.22 This research indicated that utility issues were identified as the most frequent and prevalent problem, accompanied by the required written description of the invention.23 It is also contended that gene patents do not meet the criteria of non-obviousness, because, through in silico analysis, the function of human genes can be anticipated on the grounds of their homology to other genes.24 This analysis is not without criticism, as questions have been raised regarding the authors definition of problematic that is based upon the authors perspectives rather than court decisions. In addition, the data include patents awarded in the early 1990s when gene patenting was still developing and there was little experience and expertise on which to grant these patents.25 Such concerns over patent quality are not limited to gene patents. The debate over whether or not the USPTO is too lenient in awarding patents is current and is specifically intense as emerging industries develop and seek patents. The patent process is an activity heading towards claims that certain technologies are not amenable to patenting or that patents granted do not meet the requirements of the Patent Act.
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z Nevertheless, as patent inspectors or examiners build up expertise in a new field and develop prior art, the quality of patents generally increases.26 ECONOMIC ISSUES WITH RESPECT TO GENE PATENTING Biotechnology industry leaders view patents as vital for protecting innovation. It is found that patents are considered the most effective and efficient method to protect inventions in the drug industry, particularly when biotechnology products are patentable.27 Some commentators note that patents are particularly significant in this sector because of the relative ease of imitating the finished product. Costs associated with imitating a product is extremely low relative to the innovators costs for discovering and developing a new compound.28 Antagonists of gene patents debate that they restrain additional research because there are no alternatives to a patented gene in diagnosis, treatment, and research,29 and owners necessitates licensing fees.30 However, despite the fact being some experts claim to be a negative result of financial considerations in the biomedical research community,31 others maintain that gene patents prevents the doctors and clinical geneticists from performing tests for profit, or in a way that vies with the patent holder, without reimbursement to the inventors of those tests.32 Some analysts assert that certain patents, particularly those on research tools 33 in biotechnology, hamper the innovation process. It is posited that ownership of research tools may inflict significant transaction costs that may result in delayed innovation and possible future litigation.34 The most important research tools are fundamental research platforms that open up new and unknown areas of investigation that needs to foster development by researchers in this field.35 While acknowledging that patent protection on research tools has induced private investment in biotechnology and the development of new products and processes, Eisenberg writes that: Patents on research tools threaten to restrict access to discoveries that, according to the firm beliefs of scientists trained in the tradition of open science, are likely to have the greatest social value if they are widely disseminated to researchers who are taking different approaches to different problems.36
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z But this averment was disputed that there was no such norm regarding open scientific access as opposed to intellectual property protection in biological science community.37 Experiences
depicts that patents on inputs generally do not prevent the production of outputs and that the availability of intellectual property protection has expanded the resources available in the biotechnology community and led to its success.38 It is established fact that there is no evidence that gene patents have induced a decrease in research in the biomedical arena or in gene therapies.39 According to a recent analysis it was concluded that patents do not have substantial impact upon basic biomedical research and that none of random sample of academics reported halted a research project due to anothers patent on a research input, and only about 1% of the random sample of academics reported experiencing a delay or modification in their research due to patents.40 Indeed obtaining tangible research inputs appear to be more difficult because of cost, competition and time issues.41 As genes will continue to be patented and research in the field of biotechnology continues, the discussion surrounding the ethical, legal, and economic issues of gene patenting remains on-going in the public policy arena. A CRITICAL ANALYSIS OF MYRIADS PATENT CASE To understand the particular criticisms pointed against Myriads patents over the BRCA1 and BRCA2 genes, it is necessary to briefly examine and review the history of their identification. Over a number of years, scientists within and outside of Myriad found that the BRCA1 and BRCA2 genes lead the body to produce tumor suppressing proteins. These proteins when present reduce the probabilities that an individual will develop cancer. When there is mutation in one of these genes, the body ceases to produce the protein, thus increasing the risk of contracting breast or ovarian cancer. On the basis of above knowledge, Myriad and others applied for and obtained patents over the genes and associated diagnostic test. The criticisms against Myriads patents are quintuple. First, experts claimed that what Myriad did was simply to identify the function and sequence of two preexisting genes. This, they claimed, was a discovery and not an invention as no human intervention was required for the genes to possess this function.42 Second, even if the act of sequencing a gene could be considered an invention in the abstract, the process of sequencing genes has now become so routine that act
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z alone can no longer be considered to be inventive.43 Therefore, if at all the scientists did was just sequence a gene, the invention would be considered obvious and not patentable. Third, some contended that the problem with Myriads patents is that they cover all possible and potential functions even those unknown at the time of application of the genes and covered virtually all forms of diagnostic testing, even those not contemplated by the inventors. Id est, the scope of the patent claims was comprehensive and should have been restricted to a specific function.44 Fourthly, argument made was that Myriads patent over the diagnostic test should be rejected as it should fall within certain exemptions according to which methods of medical diagnosis and treatment cannot be patented.45 Fifthly, there was argument about whether Myriads patent actually could be used to prevent certain activity, most prominently, research aimed at developing or improving diagnostic tests in the clinical setting.46 Consequently in a lawsuit, Association for Molecular Pathology, et al., vs. United States Patent and Trademark Office, et al. was filed against Myriad Genetics and the U.S. Patent and Trademark Office by professional medical organizations, patients and doctors, represented by the American Civil Liberties Union. The complaint fundamentally challenged claims on specific isolated genes and diagnostic methods in seven of Myriad's 23 patents on BRCA1 and BRCA2. It is worth mentioning that some patents are owned by Myriad and some of them were licensed from University of Utah. The plaintiffs wanted specific claims to be declared invalid on the grounds that they are not patentable subject matter and that the isolated genes are not patentable products of nature and that the diagnostic method claims are evolved thought processes that do not yield any actual transformations. In a decision by Judge Sweet it was held that the challenged claims to the isolated gene sequences had been "improperly granted" because they claimed not patentable subject matter and hence the claims to the diagnostic methods were observed to be invalid with reference to the recent In re Bilski decision.47 As case could be decided with patent law the Court did not consider the challenge on First Amendment grounds and dismissed the same without prejudice.48 The Federal Circuit partly upheld and partly overturned the decision of District Court. 49 The Federal Circuit annulled the District Court's finding that the claims extending to isolated gene sequences are invalid and also invalidated some of the diagnostic claims;50 the Federal Circuit
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z upheld the finding that the claims for the diagnostic methods that only compare or analyze sequences that have no transformative step and are therefore held invalid.51 Recently issue of validity of Myriad gene patents reached to US Supreme Court and the Court ordered an appeals court to take a new look at the lawsuit. In a short order the court vacated that ruling and ordered the Federal court to consider the case again in light of a landmark Supreme Court ruling that invalidated two of the Prometheus Laboratories Inc. patents on a medical diagnostic test for monitoring drug dosages in which it was held that companies cannot patent observations about a natural phenomenon.52 Recently, the U.S. Federal Circuit Court of Appeals upheld the Myriads right to patent "isolated" genes known as BRCA1 and BRCA2, which account for most inherited forms of breast and ovarian cancers. However, the court denied the company's effort to patent methods of "comparing" or "analyzing" DNA sequences. The argument that genes BRCA1/2, do not meet the criteria for patentability is hoped in several respects. As national patent law in OECD countries distinctly holds that genes are patentable.53 It is debatable that International trade agreements such as the Agreement on Trade-Related Aspects of Intellectual Property Rights also necessitates this conclusion. The result is that the steps required to purify and isolate genes in order to sequence them are conjointly considered to be a sufficient intervention as to quality of the genes as inventions. As law does not explicitly make differentiation between the concepts of discovery and inventions, courts have held that particular categories of activity cannot be patented because they are products of nature.54 In this category are scientific principles such as the law of gravity and pure mathematical formulae. However, genes do not fall within these exclusions. Reference can be made of United States Supreme Court decision in Diamond v. Chakrabarty55, in which the Court held that a genetically altered organism i.e. a bacterium that cleaned oil spills competent for patent protection, the patent office has been granting patents over genes, animals, plants and other products of biotechnology and court has held this to be sufficient to grant patent on inventions if alteration is substantial. While raw products of nature i.e things that exist in exactly the same form in nature are not patentable in the United States, the steps involved in isolating, purifying or modifying genes and gene sequences are sufficient to render the resulting product an invention as opposed to a discovery. According to statistic of OECD and World Survey of Genomics Research the USPTO granted over 5,000 DNA patents in 2002.56 In 2005,
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z Fiona Murray and Kyle Jenson identified 4,270 US patents containing claims on human DNA sequences.57 In addition to being in principle patentable, genes also satisfy the US criteria of non-obviousness (inventiveness), novelty and utility (industrial application). Under US law, a genetic sequence will not meet the test for non-obviousness if both the structure of the protein resulting from the gene is recognized as well as the procedure to determine the sequence of a gene that results in a protein with that function.58 If put differently, if the protein is known and we know how to find the gene that corresponds to that protein, then the gene itself cannot be patented.59 In this regard the US Patent Offices utility guidelines,60 released in 2001, states that the utility of an invention must be substantial, specific and credible. Genes satisfy this test if an organism produces a protein, with a clear function, from the gene.61 A second petition was moved to Supreme Court challenging the decision of the Federal court by 2-1 decision. The US Supreme court observed that "A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring."62 The court held that Myriad created an innovative method of altering genes while searching for the BRCA1 and BRCA2 genes, it could possibly have sought a method patent. It is pertinent to mention that processes used by Myriad to isolate DNA were well understood, widely used, and fairly uniform. The court further stated that the present case does not involve patents on new applications of knowledge about the BRCA1 and BRCA2 genes and denied its opinion on the patentability of DNA in which the order of the naturally occurring nucleotides has been altered and held that genes and the information they encode are not patent eligible under 101 simply because they have been isolated from the surrounding genetic material. COMPARING NOVARTIS AND MYRIAD PATENT CASE In a very recent case of Novartis A.G. v. Union of India63 wherein Supreme Court of India upheld the rejection of a patent application, in relation to Cancer saving drug, as coming within the folds of Section 3(d) of the Patents Act, 1970. Subsequently, three months later US Supreme Court in Association for Molecular Pathology v. Myriad Genetics has partly rejected a patent
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z application over a naturally occurring gene sequence that significantly increases the chances of breast and ovarian cancer (BRCA1 and BRCA2) Despite the facial difference between these two cases there are some inducing similarities which emerge when scrutinized closely. These cases are interestingly similar with reference to the context of their agitation and the limitation imposed on the patent eligibility standards and the broader social implications of these cases on public health and access to medicine. It is significant to mention that in both these cases the inventors of the claimed drugs have come out in support of the decisions to deny patent protection over their discoveries. Considering the fact that the gene sequence in the study, BRCA1 and BRCA2, are known to significantly increase the risk of breast cancer and ovarian cancer, Myriad Genetics has actually attempted to monopolize the means of detecting cancer through tests. The women activists agitated that tests for breast and ovarian cancer was already prohibitive and would only further step-up if a patent was granted. Whereas in the case of Novartis, a patent has been claimed on minor modification to Glivec (a life saving cancer drug), and thus would cost several times more, than drugs that would have been produced by generic manufacturers, if patent was granted. Although the price of a drug cannot be a ground for a patent eligibility, but it does have exclusive monopoly of patent exploitation potential, when the three fold eligibility criteria patent i.e., novelty, inventive step and industrial application are not applied in an appropriate and prudent manner. The strongest similarity between Novartis and Myriad appear in their ability to impose limits on convincing the patent eligibility. In Myriad, the court had to interpret Article 101 which does not impose any restriction on the text of the patent eligibility with the law, such as Diamond v Chakrabarty, which ruled that the laws of nature, abstract phenomenon and substances natural are not patent eligible. Based on this the Court rightly pointed in Myriad that "revolutionary discovery, innovative or even a brilliant discovery do not satisfy the 101 test. The Indian Supreme Court in Novartis case had to decide whether the drug claimed was an invention of Section 2 (j) of the Act, and even if so, whether it would be excluded from patent protection under section 3 (d). The court held that even if the drug can be an invention for the limited purpose of Article 2 (j), it could not pass the minimum requirements of section 3 (d), and that the
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z Novartis had failed to demonstrate clearly how and if at all, the new version is a significant improvement compared with the known versions (Imatinib mesylate) of the same drug. Although the present two cases seems to be similar but there exists considerable difference between the two as in Myriad decision was largely a product of the Chakrabarty decision, and this measure was easier to achieve in relation to the task of interpreting Section 2 (j) and 3 (d) of the Supreme Court of without any judicial precedent applicable. More importantly, Novartis and Myriad stand for different degrees of patent ineligibility. Myriad recognizes a smoother and more intuitive principle for the exclusion of patent protection and intact natural substances principle, while Novartis strengthens a contested against misuse of a patent in the pharmaceutical industry known as concept of "evergreening". The question of the validity of such a practice has not been addressed by the Court and the exact scope of section 3 (d) was consciously left open. This will only ensure that the exclusions of patent eligibility under the Patent Act of 1970, and its equivalent in other countries continue to be the site of other patent disputes CONCLUSION Those who would patent DNA sequences without real knowledge of their utility are staking claims not only to what little they know at present, but also to everything that might later be discovered about the genes and proteins associated with the sequence. They are, in effect, laying claim to a function that is not yet known or a use that does not yet exist. This may be in current shareholders interests. But it does not serve society well. 64 In light of Novartis and Myriad patent cases which draw attention to an often overlooked understanding of patent law. It is important to mention that the test of three fold criteria of patent eligibility is merely the starting point of patent eligibility and not a conclusive determination of patents. This helps countries to fashion patent law regimes where exclusionary principles for patent eligibility, may reflect the social and economic needs of the domestic population, instead of being bound by universally agreed principles that can rarely, if ever, be implemented in a universal manner. This however does not to serve as challenge or even a critique to the TRIPS regime, which itself informs the drafting and implementation of most domestic patent law regimes. This reminds patent offices and courts that TRIPS recognizes pursuant to Article 27(2),
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z individual exceptions that countries may use to temper the application of the three fold criteria of patent eligibility. The purpose of Patent law is to provide exclusive rights to the owner but such vested rights should not only be in consonance with law and public policy but should also look up that such patents are not granted at the cost of diluting rights of public at large. Therefore, while granting gene patents to owners welfare of both public at large and the patent owner should be taken into consideration which therefore will be mutually beneficial. Although this approach is not practically feasible to be implemented in all cases as the above two cases sets best examples but the courts should try that rights of either of the parties will ultimately affect the beneficiaries as consequences of having lesser patent inventions, eventually disappointing people from accessing those inventions for benefits.
REFERENCES: _________________________________
1. 2. 3. British Society for Human Genetics. Patenting of Human Gene Sequences and the EU Draft Directive September 1997 (www.bshg.org.uk/Official%20Docs/patent_eu.htm). See National Institutes of Health, online at: http://www.genome.gov/glossary.cfm?key=gene (last accessed on 1-02-2012). See National Institutes of Health, online at: http://www.genome.gov/glossary.cfm?key=deoxyribonucleic%20acid%20(dna), last accessed January 16, 2012. See National Institutes of Health, online at: http://www.genome.gov/glossary.cfm?key=protein (last accessed 03.02.2012). Scripps Clinic and Research Foundation v. Genentech, Inc., 927 F.2d 1565 (Fed.Cir. 1991). Biotechnology Industry Organization, Primer: Genome and Genetic Research, Patent Protection and 21st Century Medicine, available at http://www.bio.org/ip/primer. Michael Crowley, They Own Your Body, Readers Digest, August 2006 available at http://www.rd.com. Debra G.B. Leonard, Medical Practice and Gene Patents: A Personal Perspective, Academic Medicine, December 2002, 1388. Lori B. Andrews, Genes and Patent Policy: Rethinking Intellectual Property Rights, Nature Reviews, October 2002, 804 John F. Merz, Disease Gene Patents: Overcoming Unethical Constraints on Clinical laboratory Medicine, Clinical Chemistry, 45:3, 1999, 324. Medical Practice and Gene Patents: A Personal Perspective,1388. Jorge A. Goldstein and Elina Golod, Human Gene Patents, Academic Medicine, December 2002, Part 2, 1321. Lee Bendekgey and Diana Hamlet-Cox, Gene Patents and Innovation, Academic Medicine, December 2002, Part 2, 1378. Iain M. Cockburn, Blurred Boundaries: Tensions Between Open Scientific Resources and Commercial Exploitation of Knowledge in Biomedical Research, April 30, 2005, 15, available at http://people.bu.edu/cockburn/cockburn-blurred-boundaries.pdf. Ibid. Owning the Body and the Soul, The Economist, March 12, 2005, 77, and They Own Your Body. Supra note 9, pg 803.
4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.
15. 16. 17.
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18. Supra note 7. 19. Supra note 13, pg 1374. 20. Lee Bendekgey and Diana Hamlet-Cox, Rebuttal: Why We Need Gene Patents, Law.com [web journal], December 30, 2002. 21. Q. Todd Dickinson statement in The Human Genome Project, DNA Science and the Law: The American Legal Systems Response to Breakthroughs in Genetic Science, American University Law Review, 20012002, 380. 22. Jordan Paradise, Lori Andrews, and Timothy H olbrook, Patents on Human Genes: An Analysis of Scope and Claims, Science, 11 March 2006, 1566-1567. 23. J Paradise, A Lori and H Timothy Patents on Human Genes: An Analysis of Scope and Claims, Paradise et al, Pg 1567, Science 11 March 2006. 24. Supra note 9, pg 803. 25. Supra note 16. 26. See CRS Report RL31281, Patent Quality and Public Policy: Issues for Innovative Companies in Domestic Markets, by John R. Thomas. 27. Wesley M. Cohen, Richard R. Nelson, and John P. Walsh, Protecting Their Intellectual Assets: Appropriability Conditions and Why U.S. Manufacturing Firms Patent (or Not), NBER Working Paper 7552, Cambridge, National Bureau of Economic Research, February 2000, available at[http://www.nber.org/papers/w7552]. 28. Henry Grabowski, Patents and New Product Develop ment in the Pharmaceutical and Biotechnology Industries, Duke University Economics Working Paper, July 2002, available at [http://www.econ.duke.edu/Papers/Other/Grabowski/Patents.pdf] 29. J Paradise, A Lori and H Timothy Patents on Human Genes: An Analysis of Scope and Claims, Paradise et al, Pg 1566, Science 11 March 2005, 30. Supra note 7. 31. D.G.B Leonard, Medical Practice and Gene Patents: A Personal Perspective, Journal of the Association of American Medical Collwges, pg.1390. 32. Supra note 13, pg. 1378 33. A biotechnology research tool is a cell line, reagent, or antibody used in research. 34. Rebecca S. Eisenberg and Richard R. Nelson, Public vs. Proprietary Science: A Fruitful Tension?, Daedalus, Spring 2002. 35. Arti Rai, Genome Patents: A Case Study in Patenting Research Tools, Academic Medicine, December 2002, Part 2, 1369. 36. Rebecca Eisenberg, Why the Gene Patenting Controversy Persists, Academic Medicine, December 2002, Part 2, 1383. 37. F. Scott Kieff, Facilitating Scientific Research: Intellectual Property R ights and the Norms of Science - A Response to Rai and Heisenberg, Northwestern University Law Review, Winter 2001, 694. 38. Ibid., 704. 39. Supra note 13, pg 1377, 1378. 40. John P. Walsh, Charlene Cho, and Wesley Cohen, Patents, Material Transfers and Access to Research Inputs in Biomedical Research, September 20, 2005, 37, available at http://tigger.uic.edu/~jwalsh/WalshChoChoenFinal050922.pdf. 41. Ibid. 42. Nuffield Council on Bioethics, The Ethics of patenting DNA, A Discussion Paper, online at: www.nuffieldbioethics.org/fileLibrary/pdf/theethicsofpatentingdna.pdf, at 56 (Nuffield, Ethics of patenting DNA). Also refer Gert Matthijs and Dicky Halley, European-wide opposition against the breast cancer gene patents (2002) 43. European Journal of Human Genetics 783. See fo r example, Richard Binns, Gene patents: are they socially acceptable monopolies, essential for drug discovery? reply (15 January 2002) 7(2) Drug Discovery Today 102; ,Gert Matthjis, The European opposition against the BRCA gene patents (2006) 5(1) Familial Cancer 95 (Matthjis, European opposition).
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44. Lori Andrews, Genes and patent policy: rethinking intellectual property right (October 2002) 3 Nature Reviews: Genetics 80 (Andrews, Genes and patent policy). 45. See, Matthjis, European opposition. 46. Andrews, Genes and patent policy, supra note 9; Matthew Rimmer. "Myriad Genetics: Patent Law and Genetic Testing" European Intellectual Property Review Jan. 2003: 20-33. 47. "Association For Molecular Pathology, et al., vs. United States Patent and Trademark Office, et al."(PDF).The New York Times. March 29, 2010. Retrieved March 12.03, 2012. 48. Schwartz, John and Pollack, Andrew (March 29, 2010). "Judge Invalidates Human Gene Patent". The New York Times. Retrieved on March 26, 2012. 49. See http://www.cafc.uscourts.gov/images/stories/opinions-orders/10-1406.pdf 50. Pollack, Andrew (July 29, 2011). "Gene Patent in Cancer Test Upheld by Appeals Panel".The New York Times. 51. See http://www.patentlyo.com/patent/2011/07/federal-circuit-isolated-human-dna-molecules-arepatentable.html 52. See Mayo Collaborative Services v. Prometheus( ) 628 F. 3d 1347, reversed. Also See. Myriad wins gene patent ruling from US appeals court, http://www.reuters.com/article/2012/08/16/us-myriad-patent idUSBRE87F12K20120816 53. See patent law charts at www.cipp.mcgill.ca. 54. See Diamond v. Diehr, Parker v. Flook 437 U.S. 584. 55. 447 US 303. 56. OECD, Genetic Inventions, Guidelines. 57. K. Jensen and F. Murray, The intellectual property landscape of the human genome (20 05) 310 Science 239. 58. KSR Intl Co. v. Teleflex 127 US 1727 (2007) (KSR) 59. D Nicol and J Nielsen, The Australian Medical Biotechnology Industry and Access to Intellectual Property: Issues for Patent Law Development (2001) 23 Sydney Law Review 347 at 365. See also D. Keays, Patenting DNA and Amino Acid Sequences: An Australian Perspective (1999) 7 Health La w Journal 69 at 83; see 51 F.3d 1552 (Fed. Cir. 1995) and 991 F.2d 781 (1993) although see also KSR, ibid. 60. United States Patent and Trademark Office, Utility Examination Guidelines (Washington, 2001), online at: http://www.uspto.gov/web/offices/com/ sol/notices/utilexmguide.pdf (last accessed September 1, 2008) 61. See Julie Grisham, New rules for gene patents (2000) 18 Nature Biotechnology 921. 62. Assoiciation of Molecular Pathology v. Myriad Genetics INC., accessible at www.supremecourt.gov opinions pdf b d.pdf 63. Civil Appeal Nos. 2706-2716 OF 2013
64. Alberts B, Klug A, The human genome itself must be freely available to all human kind, Nature 2000; 404
(6776):325. Pg 325
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RIGHT TO EDUCATION- IS IT AS BRILLIANT AS IT IS PORTRAYED?

HARIMOHANA N EVA BISHWAL* Study without desire spoils the memory, and it retains nothing that it takes in. Leonardo da Vinci RTE AN OVERVIEW
he World Declaration and the Framework for Action recognize the necessity to give to present and coming generations an expanded vision of, and a renewed commitment to, basic education. The Declaration reaffirms that education is a fundamental right for all people, women and men, of all ages. Primary education must be universal, ensure that the basic learning needs of all children are satisfied, and take into account the culture, needs and opportunities of the community. India is signatory to three key international instruments that guarantee the Right to Education Universal Declaration of Human Rights, 1948, the International Covenant on Economic, Social and Cultural Rights (Covenant), 1966 and the (UDHR) Convention on the Rights of the Child (CRC), 1989. In 2002, India joined, albeit after fifty-two years of Independence, the host of countries that provide a constitutional guarantee for free and compulsory education (FCE). Article 21A of the Indian Constitution casts a duty upon the State to provide FCE to children in the age group of six to fourteen years, as the State may, by law, determine. Ours is a country that proudly boasts of article 21-A1 for providing free and compulsory to children from the ages of 6-14, but the dismal way it is implemented is a shocking revelation. The Right to Education received considerable impetus during the last decade as a result of the concerted effort of many groups and agencies that made determined efforts to ensure that all children in India receive at least minimum education irrespective of their socioeconomic status and their ability to pay for education in a situation of continuous impoverishment and erosion of basic needs.2 But in reality the right to education act in our country is a ruse to create an illusion that the government is doing everything within its power to actually eradicate illiteracy in our country. The Right to Education Act came into effect on 1st April, 2010 exactly 3 years back from now as Government of Indias most ambitious project in education, with a vision to provide free and compulsory education to children, but how much it has yielded till now? The enactment of a project alone is not enough, necessary measures have to be taken to ensure that steps are actually taken to ensure the proper implementation of the project zeroing in on the
*
Authors are 2nd year students of Symbiosis Law School, Noida www.rostrumlegal.in/journal |
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z various factors that actually contribute to the success of the project. With the case in hand these factors include proper infrastructure and quality infrastructure. Recent studies show that children are not able to grasp study material that are being taught to children who are three grades younger than them. Students around the age of 14-15 (roughly in their 9th grade) are unable to form a single coherent sentence in English. The basis of comparison over here is not the level knowledge of any particular language as a whole but also the entire level of education provided in the whole primary level as a whole. Earlier the system of education that prevailed in our country was that of a gurukul, where children went and stayed with their guru and gained worldly knowledge which was imparted to them as the teacher deemed fit. This system had a barrier namely caste as only those who belonged to the upper strata of the society were allowed to attend these gurukuls and as always there was the question of affordability as well. This system was changed during the British era where modern education systems were introduced to the Indian sub continent3. Even this form of education was available solely to the upper strata of the society even this system of education excluded the major part of the society thus alienating them from the concept of education. For instance, while reporting about the educational situation in Bellary (presently in the State of Karnataka) in the early nineteenth century A.D., Campbell, the then District Collector observed that ...it cannot have escaped the government that of nearly a million of souls in this district, not 7000 are now at school In many villages where formerly there were schools, there are now none..... Similarly, missionary notice of 1856 stated that in all other parts of the country ....a school, either government or missionary is as rare as a light house on our coast there are four schools existing among three or four million of people....4 Thus it can be justifiable to conclude that the system of education has always evaded the lower strata of the society from time immemorial. This being said the current provision under Article 21-A of the constitution does attempt to provide education to all children between the ages of 6-14. The introduction of Article 21A watered down the Judgment of the Supreme Court in the celebrated Unnikrishnan Case. A Right which was available to all children up to the age of 14 years was reduced to a right for children in the age group of 6 to 14 only through the restrictive language of the Constitutional amendment. Even more critical to the future of this right is the wording of Article 21A which finally leaves it to the state to provide in such manner as the state may, by law, determine.5 Bridging the gap between private unaided schools and government schools is a prerequisite for establishing a common school system.6 The policing model of education in India is somewhat similar to the carrot and stick approach. The emphasis on education in our country has always been treated with the pre conceived premise in our mind that parents are not willing to send children to schools as they do not know the value of education but consider a situation where a poor parent is unable to send her child to school because of her need for an additional source of income or additional help for household chores. Under the current model, such a parent is automatically denounced as an unwilling parent
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z who does not or is unable to appreciate the benefits of formal school education but this being the point made it is also imminent to notice that the term formal education is merely a catchphrase. The government has enacted many schemes to promote RTE and one such incentive available is the Mid Day Meal Scheme. The mid day meal scheme has been implemented all over the country and this has given considerable impetus to parents to send their children to school just to ensure one square meal every day and thus this scheme has gained popularity. ANALYSIS OF LEGISLATIONS In 2002, the eighty sixth amendment inserted Article 21 A7 in the Constitution of India which entitled every child from the age of six to fourteen to free and compulsory education. Right to Education was made a fundamental right. The enactment of the Right to Free and Compulsory Education Act followed this in 2009. For the betterment of poor children who cannot afford to go to schools, this was a good step taken by the state. On the bright side, the Act is very specific about good quality physical infrastructure of the schools and teachers, training for the teachers, age appropriate classrooms, year round admissions for proper access to education and state recognition for such schools. But the law induced intense debate about its feasibility and implementation. The right to education act is certainly a boon for the country as it prohibits laissez-faire in education system. Nevertheless it is a crippled law which only provides free education to a specific age group. It may get a child into a school but it cannot make him a doctor or a lawyer or an engineer. The Act is silent about the education after the age of 14 which is the career oriented phase for a child. There is no specific process for subsidised education from the state after that for meritorious students. Also, the Act does not cater to the absence of pre school education provision for children below the age of six years.8 While the Act stipulates non-discrimination against the economically weak but does not place any restriction on the fees charged by the unaided private schools.9 In July, 2013, the Supreme Court of India issued a notice to the Delhi Government that Fundamental Right to Education is also applicable to private unaided schools. The bench held that there is no justification in taking out such schools from the purview of Article 21 A as it would only make a parallel world of commercialized education.10 Article 26 of the Universal Human Rights Declaration defines Right to Education in such a way that the right comes out as a multi-faceted right. It does not just talk about primary and elementary education but also recommends provision for technical and professional education in higher level on the basis of merit. Education is meant to promote tolerance and not be divided on the basis on class, caste, gender or any other factor. The guiding principle for education policy for UNESCO is lifelong education and lifelong learning. The states concern for primary and
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z secondary education in India represents democratization of education in our country but does not fulfill all the needs of the deprived.11 There are many untouched areas in the debate of implementation of RTE which need to be discussed. India is a country of beliefs, beliefs of all kinds, some of these being destructive too. Such a destructive belief is the idea of gender inequality. Historically, girls have a disadvantage in enrolment into schools as the opportunity cost of a girl childs time is higher than that of a boy. The Act does not pay any special heed to this fact. But the issue of gender bias does not end here. In April, 2013, a writ petition was filed by the eunuchs of in the Jammu and Kashmir High Court against the private schools of the state which refuse admission for the third gender. 12 The counselor for the petitioner pleaded violation of their right under Article 14 and 15 of the Constitution of India. Alienation exists in all forms in our country and when the state is recognizing right to education as a fundamental right, this factor needs to be taken into account. The Right to Education Act is silent on many other debatable issues like quality of teachers and teaching, detention and corporal punishment, specific working days and instruction hours, stressful exam system (no board exam in elementary school), banning the system of private tuitions etc.13 RECOMMENDATIONS Education is not a commodity to be sold in the market. It is a fundamental right as enshrined in the Constitution of India. Every citizen of our country is entitled to be educated and to have equal opportunity to build his/her own career irrespective of economic status, caste, religion, gender bias etc. Therefore it is recommended that the state bring some changes in the prevalent law. Expansion of purview: The purview of the Act should extend to all educational institutions, private or government, aided or unaided, primary, elementary or tertiary level. It should take into account the education below the age of 6 years and above the age of 14 years and diminish the chasm between the privileged and the deprived. The recommendation part of this article has been dealt in three parts:The end of bias: Bias exists in our education system in all forms. There should not be any disadvantage for any gender in particular and positive discrimination for females and transgenders should be encouraged. Here special impetus is given on the third gender who have succumbed to the social alienation have not voiced their opinions and demands yet. Somewhere this issue also includes the system of private tuitions. The state should expressly ban this practice.
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z End of arbitrariness: There should be a provision that prescribes the conduct of the teachers and puts an end to arbitrary practices like corporal punishment, scolding, mental torture, pressurising and detention. The load of school bag, homework, frequency of exams and rules of evaluation should be stipulated by law. Assaulting and harassing of students by teachers should have special penalisation in the eye of law for the purpose of deterrence. Betterment of the Infra structure and teaching faculty available: As mentioned by the Supreme Court Ad hoc teachers appointed by the government are shiksha shatrus14. The content delivered and the methodology used to deliver it is also an important aspect that has to be considered. Many of the government school teachers also deal out corporal punishments to the students irrespective of it being an offence. Also many of the schools are rundown and defaced and hence there is a huge necessity. Measures should be taken to deal with the same. CONCLUSION Only the educated are free Epictetus, Greek Philosopher Education makes a human being a man. It gives a person the freedom to live his own life and the freedom to voice his opinions. The governance of an education system must be committed to the absolute democratization of the schools and colleges of the country. The law should pay heed to every aspect and issue of the system. The Right to Education Act needs drastic improvisation in order to support the deprived and push them towards learning. This article has modestly pointed out and suggested changes in the law that defines one of the most basic fundamental right available to the children of our country as they are the ones who are to lead us into the future.
REFERENCES ________________________________
1
21A. The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine
2
Niranjanaradhya & Kashyap The Fundamentals of the Fundamental Right to Education in India retrieved from http://www.ncpcr.gov.in/Acts/Fundamental_Right_to_Education_Dr_Niranjan_Aradhya_ArunaKashyap.pdf
3
S Nurullah and J P Naik, A History of Education in India (Bombay: Macmillan, 1943) Decentralisation, Professionalism and the School System in India,Economic and Political Weekly, October 14, 2000, for a clear but concise descriptionof ancient versus modern education systems. 4 B B Misra, The Indian Middle Classes (New Delhi: Oxford University Press, 1961) p 160. 5 Dr Niranjanaradhya and Aruna Kashyap (2006), The Fundamentals of the Fundamental Right to Education in India ISBN: 81-8291-042-0 6 Private Schools in India Wriggle Out of 25% Seats for the Poor, The Economic Times, August 8, 2006;
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S Singh, Right to Education Only on Paper, The Statesman, October 22, 2006; also, Seethalakshmi S and M Seshagiri, Private Schools Have the Last Laugh, The Times of India, August 8, 2006, available at http://timesofindia.indiatimes.com/articleshow/1874504.cms. 7 Supra note 1 8 Sarvapalli Ram, Right to Education: Role of Private Sector, Ernest and Young, 20 9 Ibid 10 SC judgement on 15.07.13 11 World Education report 2000 UNESCO publishing 12 News , Westlaw, available at www.westlaw.com 13 Sarvapalli Ram, Right to Education: Role of Private Sector, Ernest and Young, 20 14 Supreme Court tears into states for hiring ad hoc teachers in primary schools PTI : New Delhi, Mon May 20 2013, 16:40 hrs available at: http://www.indianexpress.com/news/supreme-courttears-into-states- for-hiring-ad-hoc-teachers-in-primary-schools/1118214/#sthash.LljJb4Xz.dpuf
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COMPARATIVE ADVERTISEMENTS: IPR INFRINGEMENT VIS-VIS BALANCED APPROACH

HITESH AGRAWAL* INTRODUCTION
ith the advent of globalization and liberalization in Indian economy, competition has become an integral part and parcel for various firms and companies. In order to survive in the market, a company has to bring something different from others. Advertisement is a tool to promote the products and services of a company. It can be in any form either through media channel or any other. The present paper concerns about media channel of advertisements. A new product always requires some sort of publicity and advertisement is the best way to push it. In such globalized era and comparative atmosphere, when the companies advertise their products and services, truthfulness and fairness becomes the important question for public. Ideally, Advertising is normally said to mean the meaning of a representation in any form inc connection with a trade, business, craft or profession in order to promote the supply of goods or services and Comparative advertising is any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.1 Development of law on comparative advertisement in the country is a recent phenomenon. Comparative advertising is an advertisement where a party advertises his goods or services by comparing them with goods and services of another party. This is generally done by either projecting that the advertiser's product is of same or superior quality to that of the compared product or by denigrating the quality of the compared product. There is an underlying assumption that the comparative advertising benefits the consumer as the consumer comes to know of the two products and their comparative features/merits. New or unknown brands benefit most from comparative advertising because of the potential for transfer of the intangible values associated with the compared brand with or to the new brand. Comparative advertising has become more widespread, particularly in fiercely competitive markets.2
Author is a student at Institute of Law, Nirma University, Ahmedabad. He can be reached at his Email: hitesh050991@gmail.com
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z Though, The Monopolies and Restrictive Trade Practices (MRTP) Act, 1969, has been repealed but it was amended in 1984 to insert a new chapter named unfair trade practices. An advertisement is a form of representation to the consumers and this chapter had provision stating that any representation which gives false or misleading facts disparaging the goods, services or trade of another person to be an unfair trade practice. Plethora of cases decided by the various courts deals with the same. Nevertheless, s. 2 (r) of the Consumer Protection Act, 1986 provides remedy to the aggrieved from comparative advertisements in the form of prohibiting unfair trade practices. There had been complexities in deciding whether an advertisement is causing disparagements to the products or services of another. The whole process of resolving is time consuming and involves technical search, therefore, loss may hit the business of a firm/firms other than advertised one. It shows that even instant remedy may not serve the purpose sometimes in lack of proper mechanism. However, comparative advertisements are not allowed in every part of the world. There are certain exceptions for it such as Germany where an advertiser cannot display its product as best or probably best because it indirectly disparages the quality of other products in the respective category. A trader is allowed to compare his product with the product of his rival but he cannot say that the products of his competitor are of inferior quality or bad. He has liberty to compare the advantages and disadvantages, similarities and dissimilarities of the two but if he does not follow the prescribed way, it leads to infringement. A comparative advertisement consists of two components, denigration and puffery. Puffery is to make pinnacle claims about the product or service, which is often seen and if these highest claims deprecate the compared product, it leads to infringement.3 Trademark is a form of Intellectual property which represents the image of the company in the mind of a common man. Any holder of a trademark has exclusive right to use it to identify his products or services. In comparative advertisements, these holders of trademarks use the same to make the goods and services identifiable to general public. There are no. of issues arising on account of comparative advertisements such as brand value of one company reduces, sometimes, due to information imbalance, it may amount to deception to the consumer, who is habitual to use such goods and services. Therefore, it affects consumers, competitors, advertisers etc. STATUTORY REGULATIONS IN INDIA
CONSTITUTIONAL INTERPRETATION
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z Article 19 (1) (a) provides that all citizens shall have the right to freedom of speech and expression along with certain limitations under Article 19 (2). The question arose before the Supreme Court in the case of Hamdard Dawakhana v. Union of India 4 was whether advertisements are commercial speech and protection under article 19 (1) (a) can be afforded to them. The Court held: The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Art. 19 (1) (a). Again, the same question arose before the Apex Court in the case of Tata Press Limited v. Mahanagar Telephone Nigam Limited and Others5 wherein Court held contrary to the above; ... "Commercial speech" cannot be denied the protection of Article 19(1)(a) of the Constitution merely because the same are issued by businessmen. Supreme Court explained the significance of commercial speech in the form of advertisements as; Advertising as a "commercial speech" has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product-advertised. Public at large is benefitted by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech".
TRADEMARKS ACT, 1999
S. 29 (8) provides that if a comparative advertisement takes unfair advantage and is contrary to honest practices in industrial or commercial matters, is detrimental to its distinctive character or is against the reputation of trademark, it amounts to infringement of trademark. S. 30 (1) is the protection provided to the comparative advertisers. It states about the conditions when comparative advertisements do not infringe the trademarks. A trader is allowed to use it in accordance with the honest practices in industrial or commercial matters, and is not such as to
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z take unfair advantage of or to be detrimental to the distinctive character or repute of the trade mark.
CONSUMER PROTECTION ACT, 1986
Now, the power to enquire into the complaints of unfair trade practices is vested with the consumer forums established under the Consumer Protection Act, 1986. S. 2 (1) (r) of the Act provides for the definition of unfair trade practices which is parimateria to the definition given under the MRTP Act, 1969. While the said provision has put in place an effective mechanism to address the grievances of the consumer, it fails to provide relief to a competing seller as the Consumer Protection Act excludes manufacturers, sellers and service providers from its ambit.6 INTERFACE BETWEEN COMPARATIVE ADVERTISEMENT AND PRODUCT DISPARAGEMENT Competition has made the market rivalries to fight for their product. Trademarks Act, 1999 does allow for competitive advertisements along with certain restrictions mentioned therein. Product disparagement may result of an excessive puffery of a product. The High Courts and Supreme Court has dealt with the issue that when comparative advertisements may lead to product disparagement. The existing law, for the purpose of understanding, may be summarized as follows: (a) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue. (b) He can also say that his goods are better than his competitors', even though such statement is untrue. (c) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others. (d) He however, cannot, while saying that his goods are better than his competitors', say that his competitors' goods are bad. If he says so, he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible.
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z (e) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.7 By following the above said norms, a balance between competitive trade and consumer can be maintained. In a series of cases, the Court has allowed for puffery statements in comparative advertisements on factual basis but recently a contradiction was noticed in the case of Colgate Palmolive (India) Limited v. Anchor Health & Beauty Care Private Limited 8 wherein court emphasized on the consumer point of view and did not permit for claiming superiority of products on false basis either directly or by comparing them with rivals product and observed: The law as it developed from the decision of the Calcutta High Court in Reckitt Colman vs. M.P.Ramachandran upto Godrej Sara Lee case(Delhi High Court), on the basis of English precedents, recognises the right of producers to puff their own products even with untrue claims, but without denigrating or slandering each other's product. But the recognition of this right of the producers, would be to de-recognise the rights of the consumers guaranteed under the Consumer Protection Act, 1986. To permit 2 rival traders to indulge in puffery, without denigrating each other's product, would benefit both of them, but would leave the consumer helpless. The vast majority of the viewer of the commercial advertisement on electronic media are influenced by the visual advertisements as these have a far reaching influence on the psyche of the people, therefore, discrediting the product of a competitor through commercial would amount to disparagement as has been held by the High Courts and the Supreme Court of India as well as the Law laid down by Courts in U.K. & U.S.A.9 In an action for product disparagement initiated in the case of Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd.10, it was held that while deciding the question of disparagement, following factors has to kept in the mind namely, (1) Intent of commercial (ii) Manner of the commercial (iii) Story line of the commercial and the message sought to be conveyed by the commercial. Out of the above, "manner of the commercial", is very important. If the manner is ridiculing or the condemning product of the competitor then it amounts to disparaging but if the manner is only to shown one's product better or best without derogating other's product then that is not actionable. Apart from the above, the plaintiffs have to establish the following key elements: (1) A false or misleading statement of fact about a product.
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z (2) That statement either deceived, or had the capacity to deceive, substantial segment of potential consumer, and (3) The deception was material, in that it was likely to influence consumers' purchasing decisions.11 In comparative advertising, a consumer may look at a commercial from a particular point of view and come to a conclusion that one product is superior to the other, while another consumer may look at the same commercial from another point of view and come to a conclusion that one product is inferior to the other. Disparagement of a product should be defamatory or should border on defamation, a view that has consistently been endorsed by this (Delhi) Court or in other words, the degree of disparagement must be such that it would tantamount to, or almost tantamount to defamation.12 THE CODE OF SELF REGULATION IN ADVERTISING Chapter IV of The Code of Self Regulation in Advertising also provides that advertisements containing comparisons with other manufacturers or suppliers or with other products including those where a competitor is named, are permissible in the interests of vigorous competition and public enlightenment, provided: (a) It is clear what aspects of the advertisers product are being compared with what aspects of the competitors product. (b) The subject matter of comparison is not chosen in such a way as to confer an artificial advantage upon the advertiser or so as to suggest that a better bargain is offered than is truly the case. (c) The comparisons are factual, accurate and capable of substantiation. (d) There is no likelihood of the consumer being misled as a result of the comparison, whether about the product advertised or that with which it is compared. (e) The advertisement does not unfairly denigrate, attack or discredit other products, advertisers or advertisements directly or by implication.13 HOW AND EXTENT OF INFRINGEMENT IN COMPARATIVE ADS Infringement may occur in two ways. A trader can be made liable for infringement of the trademark, if the trademark used by the advertising party is directly similar or specifiable identical in a category of products and services. Indirectly, an action for infringement may also
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z lie if the advertiser has used the trademark of the competitor in his advertisement for any of the purpose and in the process denigrate the same. Usually, it is the infringement of the trademark which causes loss to the rival party but it is not limited to this kind of intellectual property. Advertisements include contents, slogans, logos, arts, graphics, particular music and sometimes geographical indication. If the contents used by the advertiser, in a comparative advertisement, are already in public domain and rival party has copyrights for the same, they may take the advertiser to the Court of law for infringement of copyright. Sometimes, a comparative advertisement may also lead to infringement of design, if the advertiser has used the same or identical design of the product of the competitor. REMEDIES AVAILABLE FOR INFRINGEMENT To meet the end of justice, time is required. Interim injunction is available to the party whose balance of convenience is more favorable in the eyes of the Court. The object of interlocutory injunction "..is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The Court must weigh one need against another and determine where the` balance of convenience' lies.14 Injunction may be temporary or permanent. If the plaintiff proves its claim and the defendant is not able to counter the same, permanent injunction may be given but when an instant decision cannot be taken, temporary injunctions are afforded. In the form of civil remedy, monetary compensation is awarded to the aggrieved along with the direction for restraining the advertisement in media. WHETHER CRIMINAL ACTION LIES? Section 102 of the Trademarks Act, 1999 recognizes the infringement as offence. It provides for criminal remedies in relation to trademark such as falsifying and falsely applying a trademark, making or processing instruments for falsifying a trademark, applying false description, applying false indication of the country of origin, tampering with an indication of origin already applied to goods, selling goods or possessing or exposing for sale of goods falsely marked, falsely
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z representing a Trademark as registered, improperly describing a place of business as connected with the trademark office. Section 103 provides for imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees but for adequate and special reasons, court may award less than six month imprisonment or penalty of less than fifty thousand. To make a company liable under this section, an intention to defraud has to be proved. IF TRADEMARK IS NOT REGISTERED? An action for passing off is provided for infringement of unregistered trademarks. The onus to prove loss and infringement is upon the plaintiff, which a quite difficult task as compared to registered trademarks. Section 27 of Trademarks Act, 1999 specifically states that: (1) No person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub-section (2) provides an exception in the form of passing off action. In order to avail remedy, the unregistered trademark holder has to prove about the belonging of the trademark, his reputation and loss occurred, with the help of documents. On the contrary, Section 135 provides that the Court shall not award damages for action of passing off if the defendant is able to satisfy the Court that he was bona fide user of the trademark. He was unaware and had no reasonable ground to believe that the plaintiffs trademark was in use and after becoming aware about the same, he forthwith ceased to use that trademark. Any Court inferior to District Court is competent to entertain the suit for passing off as per s. 134 of the Act of 1999. JUDICIAL ELUCIDATION No particular statute regulates the advertisement ethics in India. Judiciary is the ultimate developer of law relating to comparative advertisements. Earlier MRTP Act, 1969 was dealing with the same in the name of unfair trade practice but after the en actment of Trademarks Act, 1999 and Consumer Protection Act 1986, some headway was sought in the regime of comparative advertisements, for the purpose of development of intellectual property jurisprudence. Though, Consumer Protection Act, 1986 provides for remedy but it is not available for the parties, not qualifying the definition of consumer under this Act. The Chancery Court of Common law in the case of De Beers Abrasive v. International general Electric Co.15 held that the scientific comparison of the two products in a pamphlet may give
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z impression to be true for a reader.16 In this case, a manufacturer distributed pamphlets showing the scientific analysis of the two products including merits, qualities and performance. The Court observed such an act as mere puffery for claiming the superlative character of the product. Statements of this nature were held to be instances of simple puffery, with an attempt being made on part of the manufacturer to exaggerate the benefits or utility of its products, either in absolute terms, or by way of a comparison with rival products.17 In India, the issues regarding comparative advertisement arose from 1992 as per the available case laws. In the case of M Balasundaram v. Jyothi Laboratories18 a television commercial was promoting its brand Ujala liquid blue by showing that 2-3 drops are enough to get striking whiteness in the cloths and the competitor brand require more than that. The lady in the commercial was saying Chi Chi Chi in disgust looking towards the bottle other than Ujala. The competitor brand Regaul approached the MRTP Commission for the action of product disparagement. The Commission observed: 10 In the present case, the bottle shown on the TV is not relatable to the product of either the informant or the bottle in which he is marketing the product or even of any other manufacturer, for that matter. Indeed, the whole of the impugned advertisement takes but a few fleeting seconds within which it is impossible to identify the product or its manufacturer or the brand which is said to have been disparaged. The basic requirement of Clause (x) of Section 36A has thus remained unsubstantiated in the present case. 11The impugned advertisement, at worst, is in our opinion simply an instance of puffing up, but certainly not disparagement of the goods of any identifiable manufacturer. In Reckitt & Colman of India Ltd. v. Kiwi TTK19, an advertisement of the defendants liquid show polish brand Kiwi was compared with the other shoe polish brand, though, not named but the bottle had the same design and red blob on it, which the other brand Cherry Blossom had. The Court provided an injunction and held: 13Prima facie, I am of the opinion that after the removal of the red blob from the bottle of "Brand X", the same cannot be linked to the product of the plaintiff and consequently, in- my opinion, there will not be any question of disparaging, or defaming the product of the plaintiff. 14. In view of the foregoing, I modify the interim order passed on 2nd February, 1996 to the extent that I restrain the defendant from in any manner printing, circulating
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z or distributing the point of sale posters at the consumer outlets or in the market place, where such goods are sold or in any manner publishing the impugned advertisement on the electronic media or at any other place with red blob on the bottle of "Brand X". In Coalgate Vicco Controversy, a TV commercial of defendant was promoting the Vicco toothpowder. In a comparison, the tin used by the defendant resembled to the tin of Colgate toothpowder. In an action by the plaintiff, the Court decided that there may not be intention on the part of defendant to disparage the image of Colgate even then the tin carri es the image of Colgate for the viewers, therefore, action for disparagement lies.20 In Hindustan Lever Limited v. Colgate Palmolive (I) Limited21 and Pepsi Co Inc v. Hindustan Coca Cola Ltd.22, both Colgate and Hindustan Coca Cola were held liable for disparaging the products of their competitor. In the advertisements, disparagement was done by mutating the name of rival but it could be clearly ascertained by lip movement. In the later case, Court observed: 17. By calling the Cola drink of the appellants "Yen Bacchon Wali Hai. Bacchon Ko Yeh Pasand Aayegi", "Wrong Choice Baby", the respondents depicted the commercial in a derogatory and mocking manner. It cann't be called puffing up. Repeatedly telecasting this commercial will leave an impression on the mind of the viewers that product of the appellant i.e. "PEPSI" is simply a sweet thing not meant for grown up or growing children.The manner in which this message is conveyed does show disparagement of the appellant's product. In Reckitt & Colman of India Ltd. v. MP Ramachandran & Anr.,23 the plaintiff was engaged in the manufacturing of Robin Blue a blue whitener. In advertisement, the bottle used by the defendant resembled with the bottle and price of the blue whitener of the plaintiff. The Court passed an injunction against the defendant and recently on 22 June, 2010 the suit was dismissed in view of the fulfillment of the injunction order of the court.24 In Reckitt and Coleman India Limited v. Jyothi Laboratories25, again the issue of disparagement of Cherry blossom a shoe polish brand arose. In the advertisement of 'Kiwi Liquid Wax Polish', a bottle is described as X from which liquid is dripping while from a bottle marked Kiwi liquid does not drip. The shape of another bottle marked X is such, which can be identifiable as that of Cherry Blossom and for which, they had design registration. The Court ordered for injunction seeing the contentions of the appellant. The first quarter of 2010 also witnessed a dispute of Tide-Rin wherein the advertisers of Rin clearly depicted the Tide as bad in the advertisement. The Calcutta High Court restrained the
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z producer of Tide, Hindustan Unilever Limited, from screening the advertisement on TV.26 The Court held: Although in Frame 2 a packet of Tide Naturals has been shown but in the voice over the Tide lady speaks of only the product "Tide" and since then it is only in respect of such product that the advertisement continues. Even when the two shirts are put side by side both of them with their respective packets of detergent the voice over speaks only of "Tide" and does not speak of "Tide Naturals" although the packet of "Tide Naturals" is depicted. Even if the dull shirt with the Tide packet is removed without the removal of the voice over - "Tide se kahi behtar safedi de Rin" - the advertisement visually will have a negative impact vis-a-vis the dull shirt which can be associated only with the Tide lady's child who is shown approaching his mother and not the Rin boy or his mother. Therefore, the connection between the Tide lady and the dull shirt child is evident.27 In a more recent dispute of Procter & Gamble India (P & G) and Hindustan Unilever Ltd.28 (HUL), the HUL contended that the advertisement of Pantene, a brand of P & G, is misleading as it claims that the said product is the most preferred in the Indian Market. The main allegation of HUL was disparagement of its brand Dove due to the aforesaid advertisement. In this advertisement, a hoarding of P & G showed an image of Mystery Shampoo which 80% women say is better than anything else. In oppose to the same, HUL came with an advertisement of Dove saying, There is no mystery. Dove is the No.1 Shampoo. It did not stop here but also filed a complaint with the Advertising Standards Council of India (ASCI) against P & G for the false advertisement as it was induced by an old study conducted in Thailand in 2008. The complaint was accepted and ASCI ordered the P & G to refrain from making such kind of advertisement.29 CONCLUSION AND SUGGESTIONS At last, the question arises as to whether the chain of judicial pronouncement is suffice to handle the prevailing controversies of comparative advertisements? The answer needs to be pondered upon and according to the researcher, it is certainly not because court has just turned a blind eye towards the other stakeholders of comparative advertisements. The established position provides that till the time puffing of an advertisement does not uses the name of the competitor or any specific characteristics of the competitor product, it does not amount to infringement but it seems that the court has ignored the interest of consumers except once30, who are suffering at the most. It has been rightly pointed out that the objective behind comparative advertising was not only being informative and an important tool to promote competition but for comparisons to serve as benchmarks to help consumers focus on the products main qualities.31 Today, every company is
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z indulged to make its brand more superior than any other. Indian economy is facing a cut throat competition in this arena as market forces are not only attracting the consumer and their likelihoods but also trying to retain them as patrons. Advertising Standard Council of India (ASCI) has been established in India in 1985 with a view to ensuring the truthfulness and honesty of representations, observing fairness in competition and safeguarding against the indiscriminate use of advertising for promotion of ones product. 32 ASCI website provides that in the previous year, over 80% of the Ads have been withdrawn or modified due to efforts of it.33 It depicts that still advertisers do not take it seriously and which are resulting in litigation.
The law relating to comparative advertisement is also not enough as earlier MRTP Act, 1969 was dealing with the rights of aggrieved in this context but now Competition Act, 2002, replacement of MRTP Act 1969, does not deal with it. The remedy provided under Consumer Protection Act, 1986 is conditional and applicable only to the consumers. There is only Trademarks Act, 1999 which renders about comparative advertisements but the specifications given under the same, are of general character such as the advertisement should be made consistent with the honest practices of the industry. This is open for wide interpretation as to what is honest practice of an industry. The judicial precedents have also created complexity when it comes to degree of puffery. There are contradictory decisions of Calcutta High Court and Bombay High Court where puffery was not allowed by the Bombay High Court based on false or untrue statements. The established position is such that advertisers are benefitting from the loopholes created by the contradictory precedents. It is high time that legislatures must come out with certain exhaustive guidelines or policy that when an action of advertiser may amount to infringement and what can be the possible remedies for the sufferer. Further, a balanced approach in comparative advertisement regime requires that: A comparison should be made based on verifiable facts about the advertisers and the competitors products/services, which can be substantiated. If a comparison is based on clinical tests results there should be sufficient proof that they were conducted by an independent/objective body. Partial results or differences should not be shown in the advertisements because consumers may draw improper conclusions from them.
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z Always accurately depict the competitors mark with appropriate trade mark symbols/notices and add a footnote identifying the correct owner and disclaiming any affiliation. A competitors mark should not be altered in any form. Avoid using a rival mark in a highlighted or prominent fashion that implies an affiliation with or sponsorship by the competitor of your advertisement. Keep the primary goal of your advertisement limited to inform the consumer and not to unfairly attack, criticize, or discredit other products, advertisers or advertisements directly or by implication. The product or services being compared should reflect their value and usefulness to the consumer. The comparative advertisement should be informative and convey positive merits of the product/service. The advertisement should not make unjustifiable use of any firm, company or institution and should not take unfair advantage of the goodwill of any trade name or symbol of another firm.34
If these guidelines are followed in true spirit, then interest of all the stakeholders can be protected along with providing greatest quality of the product and services.
REFERENCES:
1
Directive 97/55/EC of European Parliament and of The Council of 6 October 1997 Amending Directive 84/450/EEC Concerning Misleading Advertising So As To Include Comparative Advertising, Article 2 (1) and 2 (2a); http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:1997:290:0018:0022:EN:PDF (Accessed on 19 July, 2013, 07:33 p.m.) 2 Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd, 128 (2006) DLT 81, Para 9 3 Parth Gokhale & Shriyani Datta, Comparative Advertising in India: Evolving a Regulatory Framework, NUJS Law Review, Jan-March, 2011, pp. 133 to 149 at p. 134. 4 1960 SCR (2) 671, 688 5 1995 AIR (SC) 2438 6 As observed in Colgate Palmolive (India) Ltd. v. Anchor Health and Beauty Care Private Ltd., 2009 (40) PTC 653. 7 Reckitt and Colman of India Ltd. v. M.P. Ramachandran and Anr. 1999 PTC (19) 741 8 (2008) 7 MLJ 1119 9 Godrej Sara Lee Ltd. v. Reckitt Benckiser (I) Ltd, 128 (2006) DLT 81, Para 15 10 128 (2006) DLT 81, Para 16 11 Pepsi Co. Inc. And Anr. v. Hindustan Coca Cola And Ors. 94 (2001) DLT 30, Para 84 12 Dabur India Ltd. v. Wipro Limited, 129 (2006) DLT 265, Para 23 13 The Code For Self-Regulation In Advertising, Advertisement Standard Council of India, http://www.ascionline.org/images/pdf/asci_code_of_self_regulation.pdf (Accessed on 19 July 2013, 07:55 p.m.) 14 Colgate Palmolive (India) Ltd v. Hindustan Lever Ltd, AIR 1999 SC 3105 15 1975 (2) All ER 599 16 Sallie Spilsbury, Malicious Falsehood, Media Law, http://books.google.co.in/books?id=qLcwwR5psUAC&pg=PA160&lpg=PA160&dq=De+Beers+Abrasiv
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e+v.+International+general+electric+co.&source=bl&ots=pmBnpUnbbD&sig=xkPvpXXzKXWsnXeezU g3sMK4Ngg&sa=X&ei=KGUyUObdIIe4rAf06oHIDw&ved=0CBsQ6AEwBQ#v=onepage&q=De%20B eers%20Abrasive%20v.%20International%20general%20electric%20co.&f=false (Accessed on 19 July 2013, 07:56 p.m.) 17 White v. Mellin, (1895) AC 154 18 1995 (82) CC 830 19 1996 P.T.C. 193 T 399 20 Palmolive (India) Limited v Vicco Laboratories, 1997 (5) CTJ 488 21 AIR 1998 SC 526 22 2003 (27) PTC 305 (Del)(DB) 23 CS No.31 of 1996 24 CS No.31 of 1996 25 (1999) 2 CALLT 230 HC 26 ET Bureau, Tide turns: HC stays Rin ad, The Economic Times, http://articles.economictimes.indiatimes.com/2010-03-06/news/28410417_1_rin-ad-tide-naturals-hul, (Accessed on 19 July 2013, 07:58 p.m.) 27 Procter And Gamble Home Products Limited and Anr. v. Hindustan Unilever Limited, G.A. No. 614 of 2010, C.S.NO.43 OF 2010, 28 Kala Vijayraghavan, Ambush marketing: HUL's last-minute surprise foxes P&G, The Economic Times, (January 15, 2013), http://articles.economictimes.indiatimes.com/2010-0729/news/28435323_1_mystery-shampoo-ambush-marketing-head-shoulders (Accessed on 19 July 2013, 07:59 p.m.) 29 Namrata Singh, Shampoo Ad: HUL drags P&G to Court, The Times of India, (January 15, 2013), http://timesofindia.indiatimes.com/business/india-business/Shampoo-ad-HUL-drags-PG-to-court/articleshow/6568938.cms (Accessed on 19 July 2013, 08:00 p.m.) 30 Supra at 8 31 Keshav S. Dhadak and Vaishali Mittal, India: How to Gain From Comparative Advertising, Managing Intellectual Property, (January 15, 2013), http://www.managingip.com/Article/1321496/India-How-togain-from-comparative-advertising.html (Accessed on 19 July 2013, 08:00 p.m.) 32 Objects of ASCI, Advertisement Standard Council of India, (January 15, 2013), http://www.ascionline.org/index.php/asci-about/48-cat-about-asci-goals/asci-objectsofasci (Accessed on 19 July 2013, 08:01 p.m.) 33 Role & Function of ASCI, Advertisement Standard Council of India, (January 15, 2013) http://www.ascionline.org/index.php/asci-about/50-cat-about-asci-goals/asci-role-function (Accessed on 19 July 2013, 08:02 p.m.) 34 Supra
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ROLE OF ICRC IN PROTECTION OF SICK AND WOUNDED

SMT. JAYASHREE M.* Dr. T.R. MARUTHI INTRODUCTION
nternational humanitarian law purports to regulate the conduct of armed conflict in two key respects. First, it imposes minimum standards of protection for victims of armed conflict, whether they are injured combatants, prisoners of war, or civilians who happen to be caught up in the conduct of armed hostility. The key instruments dealing with this area of the law are the four Geneva Conventions of 1949, which have among the highest number of states parties of all multilateral treaties and the two Additional Protocols of 1977. Secondly, International Humanitarian Law restricts the permissible means and methods of warfare, including the types of weapons that can be deployed and the targets they can be deployed against, and limits the amount of force used to what is proportionate to the legitimate military necessity. The Geneva Conventions 1949 are only applicable to international armed conflicts, and common article 3 alone extends some of the basic principles to internal armed conflicts. In the 1970s, as the international community was negotiating new instruments to extend and develop further the rules of international humanitarian law, it was recognized that internal armed conflicts posed a particular challenge to the application of these rules. The two Additional Protocols of 1977 were created to extend the minimum standards of humanitarian protection for victims of armed conflict, and the scope of the rules dealing with means and methods of warfare. Somewhat controversially, Additional Protocol I applies to international armed conflicts, including struggles for self determination against 'colonial domination and alien occupation and against racist regimes'. Additional Protocol II extends some of the rules of international humanitarian law to internal armed conflicts not otherwise covered by Additional Protocol I. However, a number of problems have arisen among states' reactions to this approach. WHO IS ENTITLED TO TAKE PART IN HOSTILITIES? A central feature of the laws of armed conflict ever since the eighteenth century has been the distinction between combatants and civilians. The distinction is important for two reasons. First, combatants are legitimate targets, civilians are not. Secondly, lawful combatants are entitled to participate in hostilities and if captured, to be treated as prisoners of war, whereas civilians who take a direct part in hostilities and who thereby become unlawful combatants are largely
*
Research Scholar, Department of Studies in Law, University of Mysore, Karnataka Senior Assistant Professor, Department of Studies in Law, University of Mysore, Karnataka www.rostrumlegal.in/journal |
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z unprotected by the laws of armed conflict. They have no claim to prisoners of war status and can be tried and punished for their belligerent acts. It is therefore of the utmost importance that combatants should be distinguishable from civilians. That is no easy task, however, when one party to a conflict relies on irregular combatants rather than uniformed soldiers. Articles 1 and 2 of the 1907 Hague Regulations on Land Warfare and Article 4 of the Geneva POW Convention, 1949, laid down different standards for members of the regular armed forces and irregular combatants. Under their provisions, members of the regular armed forces a term which includes conscripts as well as professional soldiers of a State are automatically entitled to combatant and, therefore, prisoners of war status.1 They forfeit that entitlement, however, if they engage in hostilities while disguised as civilians. Thus, the Privy Council held that two Indonesian soldiers who blew up a bank in Singapore during an armed conflict were not entitled to be treated as prisoners of War and had properly been convicted of murder, because they had been disguised in civilian clothes when they planted the explosive. It has also frequently been held that a person who takes up arms against the State of which he is a national is not a lawful combatant and has no entitlement to prisoner of war status, even though he may be a member of the regular armed forces of the enemy State. Irregulars, on the other hand are lawful combatants under the 1907-49 provisions only if: (1) They are members of an organized force; (2) That force belongs to a party to the conflict; (3) The force is under the command of a person responsible for his subordinates; (4) The members of the force wear a fixed, distinctive sign, recognizable at a distance; (5) They carry arms openly; and (6) They conduct operations in accordance with the laws and customs of war.2 Although Article 4 of the Geneva prisoner of war Convention specifies that members of organized resistance groups in occupied territories may qualify as lawful combatants, this provision is almost entirely symbolic as they are still required to comply with the above conditions. In general, this is impossible, few members of the resistance in France during the Second World War, for example, could have complied with the requirement of wearing a 'fixed, distinctive sign'. The 1958 British Manual of Military Law, while conceding that 'something less than a complete uniform' is sufficient to meet this requirement states: it is reasonable to expect that the silhouette of an irregular combatant in the position of standing against the skyline should be at once distinguishable from the outline of a peaceful inhabitant, and this by the naked eye of an ordinary individual at a distance from which the form of an individual can be determined. The life expectancy of such an irregular would be short. In practice, therefore, almost all
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z irregulars fall outside the test laid down by the Hague Regulations and the Geneva Convention. Additional Protocol I attempts to alter this position, Article 44 of the Protocol largely assimilates regular and irregular forces. The first sentence of Article 44(3) lays down the basic requirement for both groups: In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack.3 THE WOUNDED AND SICK The First and Second Geneva Conventions contain detailed legal regimes for the treatment of the wounded, sick and shipwrecked. This regime may be summarized, in the language of the Red Cross Movement, as a duty to 'respect and protect', i.e., a negative duty not to do harm and a positive obligation to take certain steps to assist the wounded, sick, and shipwrecked. Thus, there is a duty to collect and care for enemy wounded. They must be given the same access to medical treatment as the State's own wounded and sick, priority between wounded persons being determined solely by considerations of medical need and not by nationality, allegiance, or status.4 Medical transports, hospitals, and dressing stations used by the enemy's armed forces are not to be attacked a protection extended to civilian medical facilities by the Fourth Convention and Additional Protocol I unless they forfeit their protection in one of the ways set out in the Convention. Even then, there is an obligation to issue a warning before attacking them, except in the case of medical aircraft. Such units should be marked with the protective emblems of the Geneva Conventions, the Red Cross or Red Crescent which there is a strict obligation to respect.5 Contrary to popular belief, these are not simply medical emblems which may be affixed to anything connected with the provision of medical services from a hospital ship to a school first aid box. The use of the emblems is restricted to the International Committee of the Red Cross, the medical services of the armed forces, and other medical bodies such as national Red Cross societies expressly authorized by the military authorities to use the emblems. Medical personnel are also entitled to protection, so long as they are not used to commit, outside their humanitarian duties, acts harmful to the enemy. Medical personnel are entitled to carry arms for their own defense and that of the wounded in their care. Reprisals against the wounded, sick, shipwrecked, or members of medical units are prohibited. The modern law of armed conflict, since its birth on the field at Solferino, has been preoccupied by the fate of wounded, sick and shipwrecked combatants or other military personnel. The law of armed conflict, in particular Geneva Conventions I and II, contains a series of norms protecting these personnel and requiring belligerents to grant them assistance. The paramount duty with respect to the wounded, sick and shipwrecked is not to target injured personnel or engage in hostile action directed towards them: as soon as they are hors de combat, such persons may no longer be made the object of any attack or assault whatsoever. Further important duties require
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z adverse belligerents to: (i) respect, (ii) protect and (iii) care for hors de combat wounded and/or sick and/or shipwrecked military personnel once they are under the control of that belligerent. 6 The requirement to respect the hors de combat military personnel connotes the idea of abstention. Belligerents must not engage in hostile acts against such persons, which includes a requirement to abstain from threats, intimidation and harassment directed against those placed hors de combat. If the concept underlying the duty of respect could be summed up in one word, it is that wounded, sick and shipwrecked persons should be spared. The duty of protection connotes an active preservation of the hors de combat personnel from evils and dangers. The requirement extends to dangers that are a result of the armed conflict and those that are the result of other external causes, such as illness or the elements. The wounded, sick and shipwrecked personnel should be sheltered and treated humanely. Finally, the obligation to care for the hors de combat personnel requires each belligerent to search for and collect the wounded and sick without discrimination based on nationality or on other irrelevant criteria, such as sex, religion or political opinions. Moreover, it requires the wounded and sick to be cared for medically, according to the practical possibilities and the material available. These fundamental duties are spelled out in Geneva Conventions I and II, the first of which applies to land warfare and the second of which relates to warfare at sea and thus includes provisions concerning the protection of the shipwrecked military personnel. These conventions do not cover injured and sick civilians, where Geneva Convention IV applies.7 The most relevant provisions in Geneva Convention I are Article 12 and 15, which are extracted below: Art. 12. Members of the armed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not willfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created. Only urgent medical reasons will authorize priority in the order of treatment to be administered. Women shall be treated with all consideration due to their sex. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as military considerations permit, leave with them a part of its medical personnel and material to assist in their care. Art. 15. At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collect the wounded and sick, to protect them against pillage and illtreatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled. Whenever circumstances permit, an armistice or a suspension of fire shall be arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield. Likewise, local arrangements may be concluded between Parties
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z to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area. The position is recapitulated in Article 10 of Additional Protocol I, which is reproduced below: Protection and care: 1. All the wounded, sick and shipwrecked, to whichever Party they belong shall be respected and protected. 2. In all circumstances they shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. There shall be no distinction among them founded on any grounds other than medical ones.8 Similar obligations apply to the parties in non-international armed conflict. These duties are set out, in a much more succinct and less detailed fashion, in Article 3 common to the Geneva Conventions and in Article 7 of Additional Protocol II. These provisions reduce the obligations contained in Geneva Conventions I and II to their minimum common core. The duties of respect, protection and care primarily place obligations on the parties to the conflict. Every State must organize, either within its army, or complementary to its army, a medical service with the role of caring for wounded and sick combatants in case of armed conflict. This duty is not dependent on the existence of an armed conflict and is imposed on states in times of peace in order to ensure that there is no period of time during an armed conflict where such a service does not exist. The civilian population of a state has no direct duty of protection and care for enemy combatants. However, the civilian population has a duty to respectthe wounded, sick and shipwrecked, and this must be translated by the states into their municipal law, requiring that there shall be no attacks on the wounded or sick enemy combatants. Civilians who spontaneously care for wounded and sick enemy combatants shall not be liable to criminal prosecution for these acts. 9 For example, such civilians shall not be prosecuted for treason. Of course, the authorities of the state, and in particular also the military authorities, can call upon the civilian population to collect and care for adverse combatants, appealing thus to their charity. However, they are under no law of armed conflict obligation to respond, but if they do they will be granted the necessary protection and facilities. Once the wounded and sick are collected by the competent medical services of belligerent, information concerning the combatant must be gathered as soon as possible. Collected data should, if possible, include: designation of the state of origin of the combatant; army, regimental, personal or serial number; surname; first name or names; date of birth; any other particulars shown on his or her identity card or disc; date and place of capture and/or death; particulars concerning wounds or illness, or cause of death. Then, as soon as possible, the belligerent is obliged to forward this information to the Information Bureau for Prisoners of War, described in
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z Geneva Convention III and operated by the International Committee of the Red Cross. The Information Bureau will transmit these particulars to the power of origin of the wounded or sick combatant, and in particular to his or her family. During situations of armed conflict, it happens very often that the number of victims by far exceeds the amount that the ordinarily equipped medical service of the army can handle. For this reason, the law of armed conflict provides a four tier system in order to guarantee that adequate care can be given to the wounded and sick. First, as has been examined above, the primary duty to care for the wounded and sick, of whatever nationality, is placed upon the medical services of the army. Secondly, the National Red Cross Society of the belligerent, the medical service of which is overburdened, will be able to offer invaluable services in assistance of that medical service through its medical personnel, material and expertise. Thirdly, if the needs of the wounded and sick exceed the capacities of both the medical service of the belligerent and the National Red Cross Society of the belligerent, the International Committee of the Red Cross will request that National Red Cross Societies of neutral states render assistance to their underresourced sister society within the territory stricken by the war. Hence, a series of Red Cross Societies will send medical personnel and material to the war zone. Thereby, they will increase considerably numbers of personnel and equipment able to assist the wounded and sick. This practice began during the Franco-Prussian War of 1870, and has been a feature of subsequent armed conflicts. Finally, the International Committee of the Red Cross itself may organize some help, for example by sending medical material or qualified personnel to locations where there is a shortage. In the past, during the Yom Kippur War in 1973 and during the Indo-Pakistani War of 1971, the International Committee of the Red Cross has hired aircraft in order to transport material to places where it is desperately needed.10 To summarize, the four tiers of aid for the wounded and sick are thus: a) The medical services of the army of the belligerent and any civilian medical services controlled by the belligerent; b) The medical services of the National Red Cross Society of the territory of the belligerent; c) the medical services of National Red Cross Societies from neutral states that offer their assistance, often at the request of the ICRC; and d) The medical services of the ICRC. The International Committee of the Red Cross plays a crucial role in protection the sick and wounded in an armed conflict. Though it plays a vital and important role at the time of armed conflict, it has got no proper authority to address the issue or compel the warring states to follow the conventions. The role played by International Committee of the Red Cross is very vast, a few
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z important provisions of the Geneva Convention and the other related one and their compilation by the International Committee of the Red Cross will be discussed below The cardinal rule that governs the provision of care to the wounded, sick and shipwrecked is that of non-discrimination. When deciding which wounded or sick combatant should be treated first, only medical factors, particularly the urgency of the need for treatment, may be taken into account.11 Thus, a heavily injured person should be treated in priority to a person with lesser injuries; a combatant who is at risk of death due to his or her injuries must receive priority over those with wounds that are not life-threatening; and so on. Conversely, it is accepted that adverse distinction on the basis of nationality, sex, race, religion, political opinion or similar criteria is prohibited. The cardinal rule remains that assistance and care must be provided equally, with distinction between the wounded and sick made only on the basis of urgency and need. It is clear that the duty of non-discrimination requires that the soldiers owing allegiance to the power of origin of the treating medical service or to the enemy power the must be treated equally. It may not always be easy to live up to this duty in practice, since it may mean that adverse soldiers have to be treated in priority to soldiers from the country of the treating medical personnel. However, the duty is taken exceptionally seriously by members of a medical service, and may be seen as a reflection of the requirements imposed on them by medical ethics. Moreover, the requirement to make decisions on the basis of clinical need makes clear that material assistance given by, for example, the International Committee of the Red Cross need not be distributed in arithmetically equal parts to all participants in the conflict. Whilst the quality of medical supplies supplied should be the same, it would be absurd to provide the same quantity of material to both a party with a well equipped medical service who is not in need of supplies and to a party whose medical service is badly equipped, with an urgent requirement for more provisions. However, it may be politically difficult to persuade the parties to the conflict to accept such distinctive treatment. Thus, during the Spanish Civil War, medical and humanitarian aid was distributed on the basis of strict equality, even if the needs were unequal. Medical personnel have to operate in and be, along with their material, transported to, positions near to the front line of an armed conflict, possibly even inside the combat zone, as many of the wounded and sick suffer injuries that would not withstand transport to a place of greater safety. In order to protect these medical personnel and their material they are granted immunity from attack, with the belligerents placed under an affirmative duty not to make fixed establishments and mobile medical units the object of attack. 12 In order to ensure that the personnel and material entitled to protection from attack can be distinguished by the adverse belligerent, they must be visibly marked as a medical unit. To this effect, and in order to ensure uniformity amongst the medical services of state parties, a particular protective emblem was specified in Geneva Conventions I and II.13 It is the heraldic emblem of the red cross on white ground, or the red crescent on white ground. A new protective emblem was added to those which may be worn
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z by medical services by Additional Protocol III to the Geneva Conventions. It is composed of a red frame in the shape of a square on edge on a white ground. In armed conflicts at sea, covered by Geneva Convention II, special protection is granted to hospital ships. These ships are devoted to the collection and provision of care to wounded, sick and shipwrecked military personnel. The key provision with respect to these ships is Article 22 of Geneva Convention II, which reads as follows: Military hospital ships, that is to say, ships built or equipped by the Powers specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed.14 The notification that is required by article 22 before protection is granted to hospital ships may be effected either by direct contact between the belligerent parties or through the channels of the protecting power or the International Committee of the Red Cross. In order that the belligerents can satisfy themselves that the privileged status granted to hospital ships is not being abused, the warships of a belligerent can search adverse hospital ships and may exercise a control over matters such as the course taken by the hospital ship or its ability to communicate with other ships. If the privileged status of the hospital ship is abused for the purposes of hostile action, the ship may be captured as a prize, once an order to stop the hostile action has been given and a reasonable time for compliance has lapsed. The best method of guaranteeing proper use of such ships is to place a neutral observer aboard the hospital ship.15 Such an observer may be sourced through the protecting power or may even be sent by the International Committee of the Red Cross. Neutral states may offer hospital ships to the belligerents. In such cases, the hospital ship must be put under the command of a belligerent and be notified to opposing belligerents to benefit from protection under Geneva Convention II. Such ships will then fly the flags of both their state of origin and the belligerent with whom they are affiliated. By requiring that a ship be placed under the control of a belligerent, these provisions aim to ensure that neutrally flagged hospital ships will not hamper in any way military operations at sea, and thus put themselves in danger. The drafters of Geneva Convention II felt that only the incorporation of neutrally flagged hospital ships within the forces of a belligerent was sufficient to guarantee the avoidance of such a danger. Whilst other entities may also charter ships to undertake philanthropic missions, devoted to the provision of care and help to the wounded, sick and shipwrecked of the armed conflict, unless the provisions of Article 25 of Geneva Convention II are complied with such ships will not be hospital ships able to avail themselves of the protection granted to such ships under Geneva Convention II. However, this does not mean that such ships are without protection. As civilian objects these ships are not liable to attack or seizure. This point is emphasized in Hague Convention XI, which codifies certain customary law restrictions on the right of capture in naval warfare, and states in Article 4 that, vessels charged with religious, scientific, or philanthropic missions are exempt from capture.
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z CONCLUSION From past many decades the International Committee of the Red Cross has dominated the field of service in serving the wounded and sick, though not expecting any returns from the states at war. Many situations have arisen where certain states have not allowed the International Committee of the Red Cross to enter their territory and to provide medical care and other assistance to the wounded and sick including combatants and non combatants. The committee with its determination and dedication at the time of war where maximum bloodshed will happen and majority feel to flee away to safer places has sent its volunteers and staff t assist the needy ones. Today there is no place on this earth where we cannot see the International Committee of the Red Cross personnel or volunteers helping and aiding the most needed one not only at the times of war but also at the time of natural disaster. REFERENCES
1 2
Joseph Kelly, 'Gas Warfare in International Law' (1960) 9 Military Law Review 1, 3. Thomas Stock, 'Chemical and Biological Weapons: Developments and Proliferation' in [1993] SIPRI Yearbook: World Armaments and Disarmament 278, 285-6 3 ICRC, Special Brochure: Landmines Must be Stopped (1996) 12 4 Coupland, above n 35; ICRC, The Medical Profession and the Effects of Weapons
5 6 7
Id Dunant, A Memory of Solferino at 115-26
Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (1864), 22 Stat 940 (1865). 8 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field (1929), 47 Stat 2074 (1933) 9 International Committee of the Red Cross, Report on the Work of the Conference of Government Experts for the Study of the Conventions for the Protection of War Victims (Geneva, April 14-26, 1947) (1947). 10 International Committee of the Red Cross, Hospital Localities and Safety Zones 23 11 Article 5.2(g) of the Statutes of the International Red Cross and Red Crescent Movement, in Handbook of the International Red Cross at 422 12 Twenty-eighth International Conference of the Red Cross and Red Crescent, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts 22 (ICRC 2003)
13 14
Id Hague Convention (X) for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention
15
Supra note 14
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THE CONCEPT OF COLLECTIVE MINISTERIAL RESPONSIBILITY IN INDIA- THEORY & PRACTICE

ROMIT RAJA SRIVASTAVA* INTRODUCTION
ollective Ministerial Responsibility in the sole crux of Parliamentary democracy. The principle of collective responsibility represents ministerial accountability to the legislature. In India, the doctrine of collective responsibility of the Union Executive to the House of the People and of the State Executive to the Legislative Assembly is specifically enshrined in the Constitution. Article 75(3) lays down that the Council of Ministers shall be collectively responsible to the Lok Sabha. It means that the Government must maintain a majority in the Lok Sabha as a condition of its survival. The object of Collective responsibility is to make the whole body of persons holding ministerial office collectively, or, if one may so put it, vicariously responsible for such acts of the others as are referable to their collective violation so that, even if an individual may not be personally responsible for it, yet, he will be deemed to share the responsibility with those who may have actually committed some wrong.1 Lord Salisbury explained the principle of collective responsibility as: For all that passes in the Cabinet, each member of it who does not resign is absolutely irretrievably responsible, and has no right afterwards to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues. 2 The collective responsibility under Article 75 of the Constitution of India has two meanings: (I) All members of a Government are unanimous in support of its policies, (II) The ministers, who had an opportunity to speak for or against the policies in the cabinet are thereby personally and morally responsible for its success and failure. 3 Collective cabinet responsibility refers to the accepted conduct of Government Ministers as part of the cabinet. Under this doctrine, ministers are bound to support publicly the decisions made by the Cabinet as a whole and will show no disagreement with these decisions outside the cabinet room. The doctrine has evolved as a means of maintaining the appearance of cabinet unity and party discipline and showing that the government is firmly behind the policies it promotes and seeks to pass through the parliament. The doctrine of Collective Cabinet Responsibility evolved as a means of giving a public appearance of cabinet unity and genuine collective decision making.
* Author
is a student of Symbiosis Law School, Noida. He can be contacted via email at www.rostrumlegal.in/journal |
romitrajasrivastava@msn.com
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z The principle of collective responsibility secures the unity of the Cabinet and the Council of Ministers. Prime Minister Nehru took occasion to expound the principle as follows in the context of State Governments, A Government after the parliamentary model, is one united whole. It has joint responsibility. Each member of the government has to support the others so long as he remains in the government. The Minister has to support his other Ministers and the other Ministers have to support each other and the Chief Minister. It is quite absurd for any Minister to oppose or give even the impression of opposing a colleague of his. Opinions may be freely expressed within the Cabinet. Outside, the government should have only one opinion. There is no question of a member of government being neutral in a controversial issue in which the government is concerned except in the rare cases which we may consider as matters of conscience, where freedom is given.4 The decisions of the Cabinet are regarded as the decisions of the whole Council of Ministers and binding on all Ministers. A Minister cannot disown responsibility for any Cabinet decision so long as he remains a Minister. He cannot both remain a Minister and criticize or oppose a Cabinet decision or even adopt an attitude of neutrality, or oppose a colleague in public. A Minister who disagrees with a Cabinet decision on a policy matter, and is not prepared to support and defend it, should no longer remain in the Council of Ministers and should better resign. There have been a number of resignations in the past because of the differences with the Cabinet. Dr. Mathai resigned as a Finance Minister because he disagreed with the Cabinet on the question of scope and powers of the Planning Commission which was proposed to be set up then. C. D. Deshmukh resigned because he differed from the Cabinet on the issue of re-organization of States, especially on the question of Bombay. On September 5, 1967, Foreign Minister Chagla resigned because of his differences with the Governments language policy, especially the place of English. Several other Ministers have resigned from the Central Council of Ministers owing to their differences with the Cabinet.5 There is, however, a convention, that a resigning Minister may, if he so wishes may state the nature of his disagreement with the Cabinet in his letter of resignation and make a resignation speech in Parliament. The principle of collective responsibility is both salutary and necessary. In S.P. Anand, Indore v. H. D. Deve Gowda6, it was held that even though a Prime Minister is not a member of either House of Parliament, once he is appointed he has also his Ministers become answerable to the House and the principle of collective responsibility governs the democratic process. On no other condition can a Council of Ministers work as a team and carry on the government of the country. It is the Prime Minister who enforces collective responsibility amongst the Ministers through his ultimate power to dismiss a Minister. The Supreme Court has ruled that the principle of collective responsibility is in full operation so long as the Lok Sabha is not dissolved. But when
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z it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People.7 The Gujarat High Court has described the principle of collective responsibility as follows: Collective responsibility means all Ministers share collective responsibility even for decisions in which they have taken no part whatsoever or in which they might have dissented at the meeting of the Council of Ministers. Collective Responsibility means the members of Council of Ministers express a common opinion. It means unanimity and confidentiality.8 According to the Honble Supreme Court, collective responsibility means that all members of a government are unanimous in support of its policies and would exhibit that unanimity on public occasions although while formulating the policies, they might have expressed a different view in the meeting of the Cabinet.9 It is to give effect to the principle of collective responsibility that the deliberations of the Cabinet are kept secret and confidential because preservation of a united front will become impossible if disclosures are permitted of the differences of opinion which emerged at a Cabinet meeting amongst its members.10 The consequences of this secrecy are far reaching. Relying on this protection, Cabinet members are free to voice their opinions without reserve on all subjects which come up for discussion; the motives which have influenced the Cabinet in coming to its decision will not be disclosed; the dissentients can support the corporate policy without being themselves singled out for special attack or having the motives impugned.11 A Cabinet Minister may lose his office if he reveals the details of a Cabinet discussion to the press. The secrecy may at times be released partially when a Minister resigns his office. He is entitled to make a statement in Parliament so that he may reveal the reasons for his resignation. How far can an Ex-Cabinet Minister be legally obligated not to reveal Cabinet discussion? This question has been answered in Britain in Attorney-General v. Jonathan Cape Ltd.12 Crossman was a Cabinet Minister for nearly six years (1964-1970). He maintained a detailed dairy about the Cabinet proceedings. After he ceased to be a Minister, he began to collate his diaries with a view to their eventual publication. Crossman died in 1974. After his death, his diaries were due for publication. The Attorney General brought an action for injunction against Crossmans executors for restraining them to publish the diaries. His contention was that the Cabinet proceedings and Cabinet papers being secret, these could not be publicly disclosed. The confidentiality of Cabinet papers and proceedings emanate from the convention of joint Cabinet responsibility whereby any policy decision reached by the Cabinet has to be supported thereafter by all members of the Cabinet whether they approve of it or not, unless they feel obliged to resign.
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z The Court laid down the proposition that when a Cabinet Minister receives information in confidence the improper publication of such information can be restrained by the Court. The Court pointed out that the Cabinet is at the very centre of national affairs and must be in possession at all times of information which is secret or confidential. To identify the Ministers who voted one way or another in a Cabinet meeting would undermine the doctrine of joint responsibility. The Court, therefore, ruled that the expression of individual opinions by Cabinet Ministers in the course of Cabinet discussion are matters of confidence, the publication of which can be restrained by the court when this is clearly necessary in the public interest. The C ourt also agreed that the maintenance of the doctrine of joint responsibility within the Cabinet is in the public interest, and the application of that doctrine might be prejudiced by premature disclosure of the views of individual Ministers. But in the instant case, the Court refused to grant injunction because what was sought to be revealed was ten years old, as the Cabinet discussions held during the period 1964-1966 were sought to be published in 1975, and there would be no damage to public interest by the said publication. As earlier noted, coalition governments have now become the order of the day in India, especially at the Centre. A number of disparate political parties come together to form the government as no single party has majority in the House. Experience has shown that inherently such governments are unstable as any constitutional party forming such a coalition government can withdraw its support anytime, thus, reducing the government to a minority. Another casualty of such an arrangement is the principle of collective responsibility, the reason being that the various parties lack a common programme and a common approach to national issues and so they speak in different voices. Further, the various parties constituting the government are more interested in pursuing their own party programme rather than a common national agenda. The coalition governments adversely affect the homogeneity and solidarity of the Cabinet. To begin with, in Britain, the concept of collective responsibility was based on conventions. But, now, after Jonathan Cape, it cannot be regarded as a purely conventional concept because the court of Appeal has specifically recognized it. In India, the concept of collective responsibility has been specifically incorporated in a constitutional provision [Art. 75(3)], and it has been judicially recognized in several cases mentioned above.
MINISTERS MUST NOT VOTE AGAINST GOVERNMENT POLICY
Without this, it could be argued that a government has lost the right to exist, and is therefore the most fundamental part of the whole doctrine of Collective Cabinet Responsibility. When a Minister votes for his or her government, he/she is giving a public expression of support even though, in private, he or she may be less enthusiastic for the measure. Even as abstention would be seen as breaking the convention it is not enough simply not to vote against, but a positive display of support is required.
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MINISTERS MUST NOT SPEAK AGAINST GOVERNMENT POLICY
Voting against or abstaining are fairly clear breaches of the convention, yet speaking against the government is less clear-cut. In the age of spin, press briefing, and leaks, a Minister may always find a way to communicate his or her dissatisfaction with a particular Government position.
ALL DECISIONS ARE DECISIONS OF THE WHOLE GOVERNMENT
A Minister should not brief or leak against a cabinet colleague in order to attack the position of an individual or group within the Cabinet or to place distance between themselves and the policy.
A FORMER MINISTER MUST NOT REVEAL CABINET SECRETS
To protect the unanimity and confidentiality of the Cabinet proceedings, a Minister must not reveal the secrets in any form.
THE CONVENTION OF COLLECTIVE RESPONSIBILITY
Geoffrey Marshall has identified three strands within the convention of collective responsibility13, which are as follows: 1. The Confidence Principle: A government can only remain in office for so long as it retains the confidence of the House of Commons, a confidence which can be assumed unless and until proven otherwise by a confidence vote. 2. The Unanimity Principle: Perhaps the most important practical aspect is that all members of the government speak and vote together in Parliament, same in situations where the Prime Minister and Cabinet themselves make an exception such as a free vote or an agreement to differ. 3. The Confidentiality Principle: This recognizes that unanimity, as a universally applicable situation, is a constitutional fiction, but one which must be maintained, and is said to allow frank ministerial discussion within Cabinet and Government. According to Dr. B. R. Ambedkar, Collective Responsibility is enforced by the enforcement of two principles. One principle is that, No person shall be nominated to the cabinet except on the advice of the Prime Minister. Secondly, no person shall be retained as a Member of the Cabinet if the Prime Minister says that he should be dismissed. It is only when the Members of the Cabinet, both in the matter of their dismissal are placed under the Prime Minister, that it would be possible to realize our ideal of collective responsibility. INDIA V. US The US Constitution makes the President responsible for ensuring that the laws of the country are faithfully executed. He alone is vested with the power to appoint and remove executive
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z officers and, thus, can effectively control the Government Departments. The President has under him Secretaries of State in charge of different executive departments who are appointed by him and who are his personal advisers. He is not bound to accept the advice tendered by them. He enjoys ultimate power of decision and therefore, has complete political responsibility for all the executive actions. The President dominates the Cabinet completely as the Secretaries of the State hold their offices entirely at his pleasure and are accountable to him. They are merely the instruments through whom the Presidents policy is carried out. As has been aptly said, The cabinet is not a device for sharing responsibility among a group; it is necessary result of the Presidents inability to supervise all affairs directly.14 The Indian President, on the other hand, acts generally on the advice of the Ministers. The US President is free to dismiss any of his Secretaries as and when he likes. The President of India has a formal power to that effect but exercises it on the advice of the Prime Minister, or when the Cabinet has forfeited the confidence of the Lok Sabha. The Secretaries of State in the USA, on the other hand, are neither responsible to Congress, nor are its members, nor do they function on the basis of Collective Responsibility. This is very different from the underlying principles on which the Executive functions in India. The truth of the matter is that America hardly has a cabinet corresponding to the classic idea of a cabinet in the Parliamentary form of Government. Because of his unfettered power of removal over them and the fact that his tenure of office is not in any way dependent upon the effect which his dismissal of the cabinet members may have upon the Congress, the President is able to dominate his Cabinet to an extent which would be almost impossible in the case of a Prime Minister.15 Ministers are responsible to the Lok Sabha not as individuals alone, but collectively also. Members of the Cabinet swim and sink together. When a decision has been taken by the Cabinet, every Minister has to stand by it without hesitation. The essence of Collective Responsibility is that "a measure accepted by the Cabinet is regarded as the joint responsibility of every one, whether or not he was present at the meeting which reached the conclusion or whether he opposed it when discussed" A No-Confidence Motion expresses want of confidence in Government. It is generally moved by Leader of Opposition. On conclusion of the debate, the Speaker puts the Motion to Vote. If the Motion is passed, the Ministry has to resign. Individual Responsibility: Though the Ministers are collectively responsible to the Lok Sabha, they shall be individually responsible to the Head of State. The Ministers hold office "during the pleasure of the President." It implies that the Ministers shall be liable to be dismissed by the President for their undesirable activities. However, in these matters the President acts on the advice of the Prime Minister. Usually, because of something that the Minister has done, the Prime Minister asks him to resign, which he readily does. Besides, every Minister is obliged to answer questions pertaining to his department.
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z METHODS BY WHICH PARLIAMENT ENSURES MINISTERIAL RESPONSIBILITY (Control of Parliament Over the Executive, i.e.. the Council of Ministers) The Council of Ministers is responsible to the Lok Sabha. There are several methods by which Parliament ensures Ministerial Responsibility. They are: a) To put to Ministers questions which should be properly answered. No Minister can afford to take a question lightly, because sometimes even a simple enquiry may lead to an unexpected volume of criticism. The questions give MPs, and through them the general public, some measure of control over the Executive. b) Moving an Adjournment Motion for discussing an important matter that should have urgent consideration. c) Moving Cut Motions when the financial matters are under consideration. d) The debates take place on a resolution moved in the House, but no debate is allowed during Question Hour or Half-an-Hour discussion. e) Moving Censure Motion against an individual Minister or a group of Ministers for their failures. f) Moving a No-Confidence Motion. Such a Motion is moved by a member or Leader of Opposition. If the Motion is carried, it implies loss of confidence and the Government has to resign. THE INCIDENCES OF COLLECTIVE RESPONSIBILITY The Prime Minister is the symbol and the leader of the Council of Ministers. The first instance or incidence of collective responsibility is that no Minister can call any policy decision as his/her own and if he/she does so, he/she can be pulled up by the Prime Minister since the primary function of the Prime Minister is to implement the decisions of the Council of Ministers and to oversee the work of the departments under his Ministry. Normally a Minister has no direct link with the President or the Governor except for the documents regarding his/her signature coming from a Ministry on which executive action has to be taken which must be authenticated by the Minister and the Secretary of the Ministry. Where the President or the Governor feels that a matter presented to him/her under the signature of a Minister should also have been discussed by the Council of Ministers, he/she can refer it back accordingly. The Council of Ministers belongs to the President or the Governor whereas the Ministers belong to the Prime Minister or the Chief Minister.16
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z The second incidence of the principle of collective responsibility is that there should be complete harmony in the Council of Ministers. Normally the majority party or the coalition provides the general guidelines to its legislative party group and the loyalty to the party or coalition is the first instance and to the Prime Minister in the second instance provides the foundation for the harmony in the cabinet. In coalition government, there is of necessity a common minimum programme which becomes the working basis for harmony. (i) (ii) (iii) In early 1950s on the issues relating to States re-organization, the Congress suffered resignation from the Union Cabinet of C.D. Deshmukh. On the question of setting up of Planning Commission the Finance Minister John Mathai left the Cabinet. When the Congress decided on Nationalization process and development of public sector by its 1958 Nagpur resolution, T.T. Krishnamchari and K.M. Munshi along with a sizeable group of Congressmen left the Cabinet and formed independent Swatantra Party with rightist ideology. An interesting case arose when the President accepted the resignation of Law Minister Ram Jethmalani on the recommendation of Prime Minister Atal Bihari Vajpayee in July 2000. The Supreme Court was examining the Sri Krishna Report which had probed the Mumbai communal riots of 1992-93 and had indicted Shiv Sena Chief Bal Thackeray for his role in the riots. The Chief Justice had castigated the Minister for making statements which were contradictory to the affidavit filed by the Central Government. Shri Jethmalani had reacted to the comments and had stated that he knew the law as well as anyone else.
(iv)
Prime Minister made the following statement in Parliament in the Ram Jethmalanis case which is significant from the point of view of Collective Ministerial Responsibility: Certain statements have been made by Shri Ram Jethmalani, former Union Minister for Law, Justice and Company with regard to the Chief Justice of India and the Attorney General of India. I have gone through those statements. My government does not share the views of Sri Jethmalani with regard to the subject matter on which he has spoken, we completely disagree with his perception of facts. The government believes in promoting a harmonious relationship between different wings of the State. Without going into the question of correctness of any possible view involved on the issue on which Shri Jethmalani corresponded with Honble Chief Justice of India, I was of the opinion that even the differences of opinion between the Chief Justice and the Law Minister should not create any imbalance in the harmonious relationship. Thus in order to ensure that his harmony is not only maintained but strengthened, I exercised my prerogative and asked Shri Jethmalani to resign. I have gone into the text of his statements issued yesterday, i.e., 27th July, against the Chief Justice of India and the Attorney General of India. I reiterate that my government completely disagrees with his perception.17
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z Usually when members of the Cabinet in large numbers faith in the leadership of the Prime Minister, it is seen that the party itself suffers a breakdown. (i) In 1969, in Congress Ministry at the Union under Indira Gandhi there was an inside conflict between old guards of the party and the Young Turks in the party. The Congress party was dominated by the former while in the House of People the Congress legislative party had young Turks in majority. In the turmoil which followed Prime Minister Indira Gandhi and young Turks quit the Indian National Congress and formed Congress(I) but continued to have their Council of Ministers against the Congress (O) odds. In 1979, in the Janata Ministry under Prime Minister Morarji Desai came to an end when dissension developed and Charan Singh group of MPs separated and formed a new party. With promised Congress(I) outside support Charan Singh formed his Council of Ministers but his government fell because Congress(I) withdrew the support before the House of People met for the confidence vote. Similarly, in 1990 National Front Prime Minister V. P. Singh suffered a defeat in House of People when Chandrashekhar led big group of Ministers and MPs left Janata Dal. Subsequently, Chandrashekhar with outside support of Congress(I) for some time functioned as Prime Minister himself.
(ii)
(iii)
These illustrative examples establish that the party obtaining majority in the House has to be very much practical and judicious in the choice of person who has to form the government as Prime Minister or Chief Minister. If and when the Prime Minister or Chief Minister fails to command respect and loyalty and the party does not or fails to change the leader for the Council of Ministers in time the party itself suffers a break or serious upheaval. PRACTICE Collective Responsibility likewise has several meanings but only two are of importance. In the first sense, it refers to the fact that all members of a Government are expected to be unanimous in support of its policies on all public occasions. This is because divergences along leading members of a Government afford such wonderful openings to its opponents and are such evidence of disharmony that they cannot be tolerated. The other sense is that Ministers who have, in theory, an opportunity to speak for or against a policy in the Cabinet, are thereby personally and morally involved in its failure or success.18 The Cabinet works as a team. There are no specific rules in the English Constitution relating to joint or collective responsibility. In India, the Constitution has specifically provided that the Council of Ministers shall be collectively responsible to the House of the People. It means that if the House of the People passes a vote of no-confidence in the Council, the Council has to resign. If it fails to resign the President will dismiss it. There is another aspect of joint responsibility. The Cabinet must work as a team and hence a Minister who does not agree with the Prime Minister must resign. Every
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z Minister has to support the decision of the Cabinet in public, even though he might have differed from others in the Cabinet meeting; otherwise the Minister must resign. Since 1950 many Ministers in the Central Cabinet resigned. The resignations of Shri Shanmugham Chetty, 1948, Shri Lal Bahadur Shastri, 1956, Shri T.T. Krishnamachari, 1958, Shri V.K. Krishna Menon, 1962 and Shri G.L. Nanda, 1966 were the results of the individual responsibility of the Minister for the working of the department. Shri Shyama Prasad Mukherjee, Shri K.C. Neogy, Dr. John Matthai and Shri Mohanlal Saxena resigned because of policy differences with the Prime Minister. The same was the reason for the resignations of Dr. Ambedkar, 1951, Shri V.V. Giri, 1952, Shri C. D. Deshmukh, 1956, Shri A.P. Jain, 1958, Shri Mahavir Tyagi, 1966, Shri M.C. Chagla, 1967, and Shri V.P. Singh, 1987. There were three cases of resignation of Ministers for allegations of corruption. They were the resignations of Shri K.D. Malaviya, 1963, Dr. M. Chenna Reddy, 1968 and T.T. Krishnamachari, 1958. 19 Shri Morarji Desai who was the Deputy Prime Minister and Finance Minister in the Cabinet headed by Shrimati Gandhi, resigned in July 1969 in protest against the action of the Prime Minister in taking away the Finance portfolio from him without giving him an idea that she was adopting that measure. On March 2001, George Fernandes resigned as Minister of Defence in the Cabinet of Atal Behari Vajpayee when video tapes secretly recorded by Tehelka showed money changing hands for an alleged defence contract. While the tapes were being inquired into, George Fernandes was reinducted in the Cabinet on October 12, 2001 amidst controversy. The opposition parties boycotted him in Parliament for the duration of the Parliament (till February 2004). Natwar Singh, External Affairs Minister in the Manmohan Singh Cabinet was forced to resign in September 2006 for his role in the Iraqui Oil-for-food Scam. There is one more aspect of this Convention. If the Prime Minister resigns or dies, it means the dissolution of the entire Cabinet. On the death of Shri Nehru, the then Prime Minister of India, on May 27, 1964, President Radhakrishnan swore in. Shri G.L. Nanda, the senior-most Minister in the Cabinet as the interim Prime Minister. Shri Nanda resigned on the election of Shri Shastri as the leader of the Congress Party on June 2, 1964. The same procedure was followed on the death on Shri Shastri on January 11, 1966. On the assassination of Prime Minister Indira Gandhi on January 31, 1984, the Parliamentary Board of the Congress Party to which Mrs. Gandhi belonged and which had majority in Lok Sabha elected Shri Rajiv Gandhi as the leader of the Party in Lok Sabha. As a result of this Rajiv Gandhi was sworn in as the Prime Minister of India that very evening. There was no interim Prime Minister on that occasion. It is not necessary for the Prime Minister who resigns to have the resignations of all other Ministers with him. Even if some Ministers are unwilling to resign, they cease to be Ministers on the Prime Minister tendering his resignation. This is an effective way of getting rid of inconvenient colleagues who might refuse to oblige the Prime Minister by their resignation. Similarly, if a vote of no-
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z confidence is passed against an individual Minister, it is a vote of no-confidence in the Cabinet and the Cabinet will have to resign. For, a Minister cannot have his own policy as distinct from the policy of the Cabinet. Prime Minister Nehru expressed his views as follows: A Government after the Parliamentary model is one united whole. It has joint responsibility. Each member of the Government has to support the other so long as he remains in the Government. The Chief Minister has to support his other Ministers and other Ministers have to support each other and the Chief Minister. It is quite absurd for any Minister to oppose or give even the impression of opposing a colleague of his. Opinions may be freely expressed within the Cabinet. Outside, the Government should have only one opinion. There is no question of a member of the Government being neutral on a controversial issue in which the Government is concerned, except in a rare case which we may consider as matters of conscience, where freedom is given.20 CONCLUSION Article 75(3) provides for the Council of Ministers being Collectively Responsible to Lok Sabha. In the UK, the concept is that of Individual and Collective Responsibility of Ministers. Our Constitution, however, provides only for Collective Responsibility which means that there can be no no-confidence in a single Minister. The entire Council of Ministers is jointly responsible to Lok Sabha for all acts of Government. Therefore, it stands or falls together. If it loses the confidence of the House, the entire Council of Ministers must resign. Also, Collective Responsibility would mean that the Ministers must not speak in public in different voices. The principle of Collective Responsibility may be regarded as fundamental to the working of the Parliamentary Government, as it is in the solidarity of the Cabinet that its main strength lies. The principle of Collective Responsibility means that the Council of Ministers is responsible as a body for the general conduct of the affairs of the government. All ministers stand or fall together in Parliament, and the government is carried on as a unity. The rule ensures that the Council of Ministers works as a team, as a unit, and as a body commands the confidence of the House and that the Cabinets decisions are the joint decisions of all the Ministers.21 There has been for some time and is at present a multitude of political parties in India. Without any particular party capable of forming a government on its own, there have been coalition governments at the centre and in many states for about the last 40 years. The country has and is being run by a number of parties which not only do not represent the majority in the country but may not even represent the majority in their own state. With different political agendas there is often no consensus on major issues of policy. Threats of withdrawal of support unless a coalition partners particular political agenda is met, has resulted either in a stalemate or in an individual minister in charge of the ministry taking decisions without consulting the Council or the Cabinet.
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REFERENCES:
1 2
State of Karnataka v. Union of India, AIR 1978 SC 68: (1977) 4 SCC 608: (1978) 2 SCR 1. Life of R.B. Salisbury, Vol. II, pp. 219-220. 3 Common Cause v. Union of India, 1999 6 SCC 667. 4 Nehrus Letter, The Hindustan Times, June 17, 1954. 5 Venkateshwaran, Cabinet Government in India, pp. 73-93 (1967). 6 1996 (6) SCC 734 : AIR 1997 SC 272 7 U.N.R. Rao v. Indira Gandhi, AIR 1971 SC 1002: (1971) 2 SCC 63. 8 Dattaji Chirandas v. State of Gujarat, AIR 1999 Guj. 48, 59. 9 Common Cause v. Union of India, AIR 1999 SC 2979 at 2992 : (1999) 6 SCC 667. 10 Wade and Phillips, op. cit., 100. 11 Dawson, op. cit., 185 12 [1976] QB 752. 13 Marshall, G. (1989), Ministerial Responsibility, pp2-4. 14 Bowie and Friedrich, Studies in Federalism, 65. 15 Schwartz, American Constitutional Law, 111. Also see, Corwin, The Constitution and What it means To-Day, 111-60(1973); Corwin, The President, office and Powers. 16 The Constitution of India, Article 78: It shall be the duty of the Prime Minister: (a) .. (b) .. (c) If the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council. 17 The Hindustan Times, New Delhi, Saturday, dated July 20, 2000. 18 Mackintosh, The British Cabinet, p445. 19 See Journal of Constitutional and Parliamentary Studies, Vol. III, No. 1. 20 The Hindustan Times, June 17, 1954. 21 State of Jammu and Kashmir v. Bakshi Gulam Mohd., AIR 1967 SC 122 : 1966 Supp SCR 401
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IS THE INTERNET THE NEW WILD WILD WEST?

SAAD SAEED* INTRODUCTION
he advent of computers has been a boom to students, lawyers, businessmen, doctors, teachers.and lastly criminals. Unauthorised access and damage to property, theft, and the distribution of obscene and indecent materials are all kinds of familiar crimes; and have assumed new dimensions with the emergence of internet. The internet is fast becoming a way of life for millions of people.1 However it is also being transformed into haven for criminals as the crime rates on internet is increasing at an alarming rate each day which will be discussed further. There have been various kinds of computer and internet related crimes. The most common amongst these is the use of viruses to corrupt or destroy data stored in computer systems. These viruses can be attached to e mails, FTPed programmes, etc. Other forms of crimes such as fraud, robbery and forgery also exist in cyber world. Bogus schemes on the internet have already robbed many people of a vast amount of money. The internet also makes defamation, assault on a persons character, and many more. In fact with the growth of crimes through internet it is directly proportional to the growth cyber world and reason of its potential threat on our society of various crimes that can be committed and attempted. In India, the Information Technology Act 2000 was enacted after the United Nation General Assembly Resolution A/RES/51/162, dated the 30th January, 1997 by adopting the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. This was the first step towards the Law relating to e-commerce at international level to regulate an alternative form of commerce and to give legal status in the area of e-commerce. It was enacted taking into consideration UNICITRAL model of Law on e- commerce 1996. New technologies create new criminal opportunities but few new types of crime. What distinguishes cybercrime from traditional criminal activity? Obviously, one difference is the use of the digital computer, but technology alone is insufficient for any distinction that might exist between different realms of criminal activity. Criminals do not need a computer to commit fraud, traffic in child pornography and intellectual property, steal an identity, or violate someones
*
The author is a student of 7th Semester at Faculty of Law Jamia Milia Islamia University, New Delhi www.rostrumlegal.in/journal |
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z privacy. All those activities existed before the cyber prefix became ubiquitous. Cybercrime, especially involving the Internet, represents an extension of existing criminal behaviour alongside some novel illegal activities.
CHALLENGES TO THE CRIMINAL JUSTICE SYSTEM
Ordinarily, the law keeps pace with the technology changes in society. However, rapid technological changes and advancement like the internet clearly threaten to leave the law behind. To a technical specialist, the internet is a global network of computers based on TCP/IP and other high speed communications protocols with thousands of nodes and millions of users. For the rest of the world, the internet is an exciting way to communicate. The main uses of the internet are to exchange electronic mail, transfer of files between computers, and remotely access host computers. Unfortunately, the wide variety of information that can be transferred, the open, unregulated nature of the internet, and the irrelevance of geography means that the internet also provides fertile ground for criminal enterprise. Since, internet is composed of computers, crimes occurring on internet are computer crimes. But defining a computer crime is difficult as a computer can be the subject or object of a crime. Subject as it can be used for the purpose of criminal activity and object as it target any computer or network to access info or some king of illegal activity. Science internets strength and purpose is facilitation of communication, traditional crimes such as conspiracy, solicitation fraud and even espionage can be committed via internet. The problem, however lies not in the fact that so many diverse kinds of crimes can be committed using the internet but the fact that exist is criminal law might be ill equipped to deal with this high sophisticated medium of committing crime. This challenge is posed due to two fundamental aspects: The relative newness of the internet and the corresponding antiquity of the present law in force.2 The irrelevance of geography, which poses serious question with regards to jurisdictional matters that are fundamental for any criminal proceeding.
It must realised that these challenges are fundamental. It is hence essential that the nature of these crimes be understood; only then there can be any progress in moving towards meeting them successfully.
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z We must remember that the basic Indian law of crimes, i.e. the Indian Penal Code, 1860 (IPC) has no definition of a computer crime. That is understandable owing to the fact that at the time of its framing there was no such Information technology Act, 2000, this was the law applicable to all cybercrimes. Also the IPC will still apply to all these circumstances as section 77 of IT Act provides liability under any other law. So the substantive provision of the IPC still do apply to such offences. Therefore, it is worthwhile to examine cybercrime in the context of IPC. INGREDIENTS OF CRIME: The definition of a crime has always been regarded as a matter of great difficulty. It is a general principal of criminal law that a person may be convicted of a crime unless the prosecution has proved beyond all doubts that: He has caused a certain event, responsibility is to be attributed to him for the existence of a certain state of affairs, which is forbidden by criminal law; and He had a defined state of mind in relation to the causing of the event or the existence of the state of affairs.
ACTUS REUS IN INTERNET CRIMES:
The element of actus reus in internet crimes is relatively easy to identify, but is not always easy to prove. The fact is that it can be termed as a crime can be said to have taken place when a person is: Trying to make a computer function. Trying to access data stored on a computer which has access to data stored outside like a hacker uses an authorised persons password to login to any companys main server, hoping to gain access to the companys consumer details would still be considered as being held in a computer.3 If he or she uses the internet to attempt to gain access, signals pass through various computers. Each of these computers is made to perform a function on the instruction which the person gave to the first computer in the chain. Each such function can be said to constitute actus reus. Attempting to login, even if those attempts fail. This is because most hackers have an automated system of trying passwords, the very running of which can be considered to be a function being performed.
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MENS REA IN INTERNET CRIMES:
An essential ingredient for determining Mens Rea on the part of the offender is that he or she must have been aware at the time of causing the computer to perform the function that the access intended to be secured was unauthorised. There must be, on the part the hacker, intention to secure access, through this intention can be directed at any computer and not at a particular computer. Thus, the hacker need not be aware of which computer he or she is exactly attacking. Further, this intention to secure access also need not be directed at any particular, or particular kind of, programme or data. It is enough that the hacker intended to secure access to programmes or data per se. Thus, there are two vital ingredients for Mens rea to be applied to a hacker: The access intended to be secured must have been unauthorized; The hacker should have been aware of the same at the same time he or she tried to secure the access.
The second ingredient is easier to prove if the accused hacker is a person from outside who has no authority whatsoever to access the data stored in the computer or the computers, however, it is difficult to prove the same in the case of a hacker with limited authority. TYPES OF INTERNET CRIMES
HACKING
Hacker is computer expert who uses his knowledge to gain unauthorized access to the computer network. Hes not any person who intends to break through the system but also includes one who has no intent to damage the system but intends to learn more by using ones computer. Information Technology Act, 2000 doesnt make hacking per se an offence but looks into factor of mens rea. Crackers on other hand use the information cause disruption to the network for personal and political motives. Hacking by an insider or an employee is quite prominent in present date. Section 66 (b) of the Information Technology Act, 2000, provides punishment of imprisonment for the term of 3 years and fine which may extent to two lakhs rupees, or with both. Banks and other financial institutions are threatened by the terrorist groups to use their sensitive information resulting in heavy loss and in turn ask for ransom amount from them. There are
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z various methods used by hackers to gain unauthorised access to the computers apart from use of viruses like Trojans and worms etc.
MERE ACCESSING OF CRIMINAL INFORMATION ON THE INTERNET
There are a number of sites on the Internet that are hosts to some criminal activity or the other. These are openly flaunted and advertised on the net. Some of these sites provide a complete guide to crimes and how to commit them on the net4, while others have directories of passwords that can be used to gain access to restricted sites, mostly pornographic sites.5 It is quite a difficult task to point out the precise statutory crime being committed by individuals who access such sites6. The apparent lack of any law against such acts by users has encouraged the proliferation of such sites on the Internet. It cannot be denied that such sites have the potential to make crime on the net as also otherwise uncontrollable. There are a number of sites, which provide ready to use manuals for making bombs including chemical and biological weapons. However, the problem with framing any law against mere accessing7 of such a site is that it would be difficult to sustain any prosecution without proving intention. It might also result in criminalization of the innocent act of just accessing such a site. For example, if a regular user of a credit card accesses a site giving information about how to commit scams related to credit cards so that he may be aware of pre-empting steps which he can take, he might be liable to be prosecuted under such a law.
FRAUD ON THE INTERNET
Internet fraud is a form of white-collar crime whose growth may be as rapid and diverse as the growth of the Internet itself. For our purposes, the term Internet fraud may be broadly defined as any fraud committed through or with the aid of computer programming or Internet-related communications such as websites, email, and chat rooms. According to the consumer organization, Internet Fraud Watch, the number of consumer complaints it receives about Internet fraud schemes has risen dramatically in recent times. The types of Internet fraud schemes that law enforcement authorities are identifying extend well beyond securities-based transactions to many other situations, such as spurious investment and business opportunities, online auctions, sales of computer and Internet related products and services, and credit card issuing8. In fact, the diversity of areas in which the Internet is being used to defraud people and organizations is astounding.9
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ALTERATION AND DESTRUCTION OF DIGITAL INFORMATION
10
The single largest menace facing the world of computers, today, is the threat of corruption and destruction of digital information induced by a human agent with the help of various types of programmes. The most commonly known programmes can be classified broadly into the following categories: Virus11; A computer virus is a programme designed to replicate and spread, generally with the victim being oblivious to its existence. Computer viruses spread by attaching themselves to other programmes (e.g., word processors or spreadsheets application files) or to the boot sector of a disk. When an infected file is activatedor executed-or when the computer is started from an infected disk, the virus itself is also executed. Often, it lurks in computer memory, waiting to infect the next programme that is activated, or the next disk that is accessed. Trojan Horse12; A malicious, security-breaking programme that is disguised as something benign, such as a directory lister, archiver, game, or even a programme to find and destroy viruses. Worms13; A programme that propagates itself over a network, reproducing itself as it goes. Nowadays the term has negative connotations, as it is assumed that only crackers write worms. Perhaps the best-known example was Robert T. Morriss Internet Worm of 1988, a benign one that got out of control and hogged hundreds of Suns and VAXen across the U.S. . . Logic Bombs14; A code surreptitiously inserted into an application or operating system that causes it to perform some destructive or security-compromising activity whenever specified conditions are met.
In this section, the menace created by viruses15 and legal provisions can be made use of against Trojan horses, worms, logic bombs, etc. 16 There are other computer pathogens, such as the worms that occasionally afflict networks and the trojan horses that put a deceptively friendly face on malicious programmes, but viruses are the most common computer ill by far. Seeking to avoid hyper technical arguments about what is and is not a virus- or a worm or a trojan horse, etc. and whether they differ from viruses, the Computer Abuse Act, 1994, of United States of America outlaws the transmission of a programme, information, code or command that cause(s) damage to a computer, computer system, network, information, data or
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z programme. Any such preventive laws should encompass both existing viruses and any future virus-like creations.
THE MENACE OF VIRUS
Computer viruses have pervaded popular culture at least as successfully as they have the worlds computer population. Yet, they have not received enough scientific scrutiny. Much of their popular presence is attributable to an obvious but deep biological analogy: computer viruses replicate by attaching themselves to a host (a programme or computer instead of a biological cell) and co-opting the hosts resources to make copies of themselves. Symptoms can range from unpleasant to fatal. Computer viruses spread from programme to programme and computer to computer, much as biological viruses spread within individuals and among individual members of a society. Most viruses attack personal computers (PCs). More than 10,000 viruses have appeared so far, and unscrupulous programmers generate roughly another six every day. It is thus clear that the menace of viruses and other such computer pathogens has to be regulated and controlled through the creation of a legal regime that is flexible enough to tackle existing as well as future contingencies. It is imperative to look at the present legal system and examine whether it measures up to the challenges posed by such advanced instruments of crime. Under the Indian Penal Code, the offence that can be related to the alteration and destruction of digital information most closely is that of mischief.
DEFAMATION ON THE INTERNET
Another grey area is with regard to law of defamation and the Internet. There are a plethora of issues related to Internet defamation. These include questions of jurisdiction17 and also questions relating to lack of legal awareness amongst people using the Internet. Internet users cannot be regarded as a homogeneous group. It is imperative to distinguish the liability of those who give individuals and corporations access to the Internet from that of individual users. The former includes not only ISPs but also non-commercial hosts such as universities.18
CYBER PORNOGRAPHY
There is no settled definition of pornography or obscenity. What is considered simply sexually explicit but not obscene in USA may well be considered obscene in India. There have been many attempts to limit the availability of pornographic content on the Internet by governments and law enforcement bodies all around the world but with little effect.
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z Pornography on the Internet is available in different formats. These range from pictures and short animated movies, to sound files and stories. The Internet also makes it possible to discuss sex, see live sex acts, and arrange sexual activities from computer screens. Although the Indian Constitution guarantees the fundamental right of freedom of speech and expression, it has been held that a law against obscenity is constitutional. The Supreme Court has defined obscene as offensive to modesty or decency; lewd, filthy, repulsive. Section 67 of the IT Act is the most serious Indian law penalizing cyber pornography. Other Indian laws that deal with pornography include the Indecent Representation of Women (Prohibition) Act and the Indian Penal Code.
CYBER TERRORISM
19
One type of cybercrime that targets the government in particular is cyber terrorism. It s a powerful platform for terrorist activity since it can be done in relative anonymity across the entire planet. Cyber terrorism shares similar traits to other cybercrimes. However, it tends to focus on disrupting computer systems and/or intimidating or coercing individuals in order to further a political or religious ideology. More than ever in history, our society is significantly dependent upon computers. Our financial system, aviation system, and all of our sensitive national security information contained on government computers are potential targets of cyber terrorism. Cyber terrorism is a real threat. But to keep it in perspective, it is extremely difficult to damage to our infrastructure via the nations computer systems. Taking control of government computer systems from the outside is extremely difficult, and requires a great deal of specialized knowledge. I.T LEGISLATION IN INDIA With the era of globalisation and computerisation started at the Mid 90s more and more computer linked to emerge into a new era of cyberspace, e commerce and governance. So then most of the international trade and transaction were done with the help of internet and it was quick as well as convenient which turned into a boom in our world and more people and enterprises switched to this new medium of Information Technology. The United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on e-commerce in 1996. The General Assembly of United Nations passed a resolution in January 1997 inter alia, recommending all States in the UN to give favourable considerations to
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z the said Model Law, which provides for recognition to electronic records and according it the same treatment like a paper communication and record. With this the Act has various grey area which needed to look up and fix it as its necessary to be par with the time and technology or else with every update of the internet the law will be left behind which will merely make it as a law inconsistent of its purpose. This Act has a contradiction with the jurisdiction issue. Electronic commerce is based on the system of domain names. The IT Act, 2000 does not even touch the issues relating to domain names. The IT Act, 2000 does not deal with any issues concerning the protection of Intellectual Property Rights in the context of the online environment. Contentious yet very important issues concerning online copyrights, trademarks and patents have been left untouched by the law, thereby leaving many loopholes. As the cyber law is growing, so are the new forms and manifestations of cybercrimes. The offences defined in the IT Act, 2000 are by no means exhaustive. These Include: Cyber theft Cyber stalking Cyber harassment Cyber defamation Cyber fraud Misuse of credit card numbers Chat room abuse Another grey area of the IT Act is that the same does not touch upon any anti- trust issues.
With the legislation containing these grey areas needed to be fixed as soon as possible. The terrorist activities and attacks on Delhi High Court, Mumbai 26/11, blasts in Ahmadabad are some few reflections of threat to mankind are made with the help of cyber space and technology. The jurisdiction problem is there in the implementation part which should be removed because the cyber criminals does not have any jurisdiction limit then why do the laws have, after all they laws are there, to punish the criminal but present scenario gives them the chance to escape. IMPLICATIONS OF RISING CYBERCRIME: Every day, nearly 150,000 viruses and other malicious codes circulate through cyberspace, affecting 148,000 computers in corporate and government offices.20 In the US over the course of one year, the amount of information lost to cybercrime nearly doubled, from US$265 million to
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z US$560 million, according to a report by the Internet Crime Complaint Centre (IC3), which is supported by the US Federal Bureau of Investigation. Consequently, cybercrime requires highly responsive and internationally coordinated control measures, making investigation and reporting of such crimes resource-intensive.21 As corporations and government offices are increasingly becoming the target of cyber-attacks, the costs to maintain, protect and restore cyber infrastructure have increased rapidly. 22 In the UK, the annual cost resulting from cybercrime is estimated at GBP27 billion (US$43 billion). A major portion of that is the result of intellectual property (IP) theft, which is expected to account for an annual total of GBP9.2 billion (US$14 billion), while espionage activities are expected to cost more than GBP7 billion (US$11 billion).23 In Germany, phishing activity is estimated to have increased 70 percent year-over-year in 2010, resulting in a loss of EUR17 million (US$22 million), according to a joint report by the German information technology trade group Bitkom and the German Federal Criminal Police Office.24 CONCLUSION No one denies the positive and proactive role of cyberspace in todays world and the dramatic change of our means to work and education through internet. Every technology have a bright as well as a dark side. So we should be aware of this dark side with necessary ways to deal with such condition. The IT Act is a big milestone for setting up a law to deal with cybercrime. It has many advantages as it gave legal recognition to electronic records, transactions, authentication and certification of digital signatures, prevention of computer crimes etc. but at the same time is inflicted with various drawbacks also like it doesnt refer to the protection of Intellectual Property rights, domain name, cybersquatting etc. RECOMMENDATIONS
AWARENESS
There should be an active participation of government and cyber cell organisation in forming awareness to public and enterprises. They should organise training and education programmes in institutions, companies and common sectors of government. The number of the cyber cops in India should be increased. The jurisdiction problem is there in the implementation part which should be removed because the cyber criminals does not have any jurisdiction limit then why do the laws have, after all they laws are there, to punish the criminal but present scenario gives them the chance to escape.
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UNIFICATION OF INTERNET LAWS:
There is a need for unification of Internet law so as to reduce the confusion in the application like for publication of harmful contents or such sites, we have Indian Penal Code (IPC), Obscenity Law, Communication Decency law, self-regulation, Information Technology Act 2000, Data Protection Act, Indian Penal Code, Criminal Procedure Code etc. but as they deal with the subject vaguely therefore lacks efficient enforceability mechanism. Due to numerous Laws dealing with the subject there lays confusion as to their applicability, and none of the Law deals with the subject specifically. So what really happens is lack of applicability from various laws and the suggestion is that of unification of laws by merging laws into a code which is efficient enough to tackle with such issue of cybercrime.
ENFORCEMENT AGENCIES:
The main problem which is seen universal in tackling is lack of enforcement agencies to combat crime relating to internet and bring some level of confidence in users. Present laws lacks proper enforcement and unable to deter the terrorist group from committing cybercrime and the punishment provides by the Act its almost inefficient and just provide punishment of 3 years max. There should be harsher law to deal with such alarming rate of serious cybercrime and threat to such financial, information and destruction of computer system. With passage of time and betterment of technology in the present date, has also resulted in numerous number of Information technology related crimes therefore changes are suggested to combat the problem equally fast.
JURISDICTION:
Information Technology Act is applicable to all the persons irrespective of their nationalities (i.e. to non-citizens also) who commits offence under the Information Technology Act outside India, provided the act or conduct constituting the offence or contravention involves computer, computer systems, or computer networks located in India under Section 1 and Section 75 of the Information Technology Act, but this provision lacks practical value until and unless the person can be extradited to India. Therefore its advised that we should have Extradition treaties among countries. To make such provisions workable.
DEFENCE TACTICS:
Like Iran India should form Cyber Cell unit to up its fight against cybercrime. The designated web watchdog team will be responsible for targeting specific networking websites that engage in espionage and incite riots.
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z The US Federal Bureau of Investigation (FBI) has established a separate division to address cybercrime in a coordinated manner. In October 2010, the FBI arrested more than 90 people, who were believed to be engaged in an international crime syndicate that hacked into US computer networks to steal US$70 million same can be incorporated in India. Implementing cyber security measures requires skilled manpower. However, most countries face a shortage of skilled people to counter such cyber-attacks. 25 So by promoting awareness and education we can have an efficient man power to deal serious cyber-attacks.
REFERENCES:
1 2
2,405,518,376 users as per internet world start data, <http://www.internetworldstats.com/stats.htm> Marc S Friedman and Kristin Bissinger, Infojacking Crimes on the Information Superhighway 3 C. Gringras, The laws of the Internet, 1997 Butterworths. 1 For example, at http://www.newdream.net/bored/messages/15732.html . 2 See, http://www.ultrapasswords.com . 3 A possible offence is that of unlawful assembly. Under section 141, IPC, the definition of unlawful assembly includes to commit any mischief or criminal trespass. However, there are major obstacles to that being applied as the entire concept of unlawful assembly is based on physical assembly of people, which is wholly unnecessary on the Internet. 4 Mere accessing here is in the context of access to the site without any further act involving copying, damage, deletion, alteration, etc. of digital information. 5 See,, Jonathan J. Rusch, The Social Engineering of Internet Fraud, at http://www.isoc.org/inet99/proceedings/3g/3g_2.htm . 6 For a list of scams on the Internet,http://advocacy-net.com/scammks.htm
8 There are two ways in which such information can be altered or destroyed : (a) By hacking into the site; and (b) Through external agents such as viruses.
9 See, Computer Viruses- An Executive Brief, at http://www.symantec.com/avcenter/reference/corpst.html. 10 See, http://www.netmeg.net/jargaon/terms/t/trojan_horse.html. 11 See, http://www. netmeg.net/jargaon/terms/w/worm.html. 12 See, http://www.huis.hiroshima-u.ac.jp/Computer/Jargaon/LexiconEntries/Logic_bomb.html. 13 See, Jeffrey O.Kephart, Gregory B. Sorkin, David M.Chess and Steve R. White, Fighting Computer Viruses, at http://www.sciam.com/1197issue/1197kephart.html 14 See, Joseph N. Froehlich, Edward M. Pinter, and John J. Witmeyer III, Making The Time Fit The Crime, at http://www.fmew.com/archive/ virus 15. This is common to all legal issues related to the Internet and also to defamation generally. 16. See, Lillian Edwards, Defamation and the Internet, in Lillian Edwards & Charlotte Waelde (Eds.), Law and the Internet: Regulating Cyberspace, 1997, Hart Publishing, Oxford, p.184 19 http://cybercrime-defense.whocanisue.com/cyber-crime-against-the-government/ 20 Cybercrime presents a major challenge for law enforcement, EUROPOL, January 3, 2011 21 The cost of cybercrime, Detica, February 2011 22 Supra. Note 25 23 Cybercrime in Germany on the rise, DW World, September 7, 2010 24 War in the fifth domain, Economist, July 1, 2010 25 Interpol Boss Warns Of Cybercrime Skills Shortage, Dot i.e., November 15, 2010
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MISUSE OF GENDER BIASED LAWS

SHAMBHAVI MISHRA I am the banner and the head, a mighty arbitress am I: I am victorious, and my Lord shall be submissive to my will. -Rig Veda (Book 10) INTRODUCTION
ndia has a great history and heritage to boast about. A major part of this has been expatiated upon the position of the women; though, the status has often been vacillating. Initially daughters of Vedic era were nurtured with love and affection but the innumerable invasions obliterated the culture. In India family has always been prime importance marriage being an important social institution since Vedic period. It was regarded as the alliance between body and soul of two people (husband and wife).There was a considerable downfall in the socio-cultural and legal status of women. In the modern era few attempts to curb the barbaric attitude were made, but the initiative was not welcomed. Though, 62 years down the row, tables have turned. Sexual Discrimination has become despicable and punishable. The reforms have been possible only because of the legal initiatives. Various legislations and laws passed in the recent years have been instrumental in strengthening the position of women in society. Not only provisions favorable to women were incorporated in the Constitution when it was framed but various legislations like Dowry prohibition Act, 1961, The Equal Remuneration Act, 1986, The Hindu Marriage Act, 1956, The Hindu Succession Act, 1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the commission of Sati (prevention) Act, 1987, Protection of the Women from Domestic Violence Act, 2005 have been introduced from time to time as required. Separate sections have been incorporated in the Indian Penal Code, which deal with the offences committed against women. Though, such attempts have often been condemned and criticized as being gender biased and violative to the right to equality; but, the truth is that even such specious arguments cannot justify why daily newspapers are coloured with articles on crimes committed against women, or why every another day dignity and integrity of a woman is sacrificed to meet an insatiable demand of the patriarchal society. Had the laws already implemented been executed in their letter and spirit, India would have been a different place to live in. Thus, it is much evident that the need of the hour is the stricter execution not the abolition of gender biased laws. With the passage of time the traditional concept of marriage has greatly changed and Hindu marriage is considered to be of dual nature i.e. of both religious sacrament and contract, where mutual consent and benefit of both the parties are duly aided by different legal provisions and reform and time to time there are various changes made in the laws with an attempts to bring
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z about changes in the status of women but all this can achieve little success without a simultaneous movement to stop the misuse of the laws by the womens. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including Supreme Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.1 The main reason for unrest in the family life is laws related to demand for dowry and domestic violence they are the biggest social evils facing our society, and no civilized society should tolerate this and every effort should be made to eradicate this evil, people giving and demanding dowry and doing domestic violence should be punished severely, but other side of coin, often unlooked upon should not be ignored. And this side of the coin is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family and misuse of these laws endanger the institution of marriage. It feels constrained to comment upon the misuse of the provisions to such a extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the welfare of the society at large so there is great need felt for stopping the misuse of the section 498-A of IPC. BIASED INDIAN LAWS Marriage is the union of two hearts; success of married life depends on the edifice built on mutual trust, understanding, love, affection, service and self-sacrifice. Once the edifice shaken, happy married life will be shattered into pieces and when one partner files a false case on the other partner and his family all the above best qualities are lost and the married life shattered into pieces.2 In March 2003, the Committee on Reforms of the Criminal Justice System set up by the Ministry of Home Affairs, chaired by Justice V S Malimath, and suggested amendments to Section 498 A of the Indian Penal Code (IPC) on the plea that it was being misused. Section 498 A is a criminal law under which a woman and her parental family can charge the womans husband and any or all of his family members, including elderly parents and minor-aged siblings of physical or mental cruelty. Anyone charged with Section 498 A is liable to be arrested by the police without any initial investigation.3 The biased nature of Section 498-A and anti dowry laws favors misuse by women. Under these laws the burden to proof is on accused and the wife and her parents or any other social service group can file a case on behalf of the wife under section 498A of the IPC and can charge any or all the husbands family for physical or mental cruelty. Characteristic of 498-A Indian Penal Code. IPC- 498 - A read as under:- Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
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z Explanation. - For the purpose of this section, cruelty meansAny willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.4
CHARACTERISTICS OF 498-A INDIAN PENAL CODE.
Cognizable The accused can be arrested and jailed without warrant or investigation. NonCompoundable - The complaint cannot be withdrawn by the petitioner chances of living together again are lost) Non-Bailable The accused must appear in the court to request bail. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona-fide and are filed with oblique motive.5 The judicial recognition of blatant misuse of these laws is not new. Way back in 1987 In Balbir Singh vs. The State of Punjab6 court had said that the amendments introduced in the penal code are with the laudable object of eradicating the evil of dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives i.e. fast emerging. It is the time to stop the unhealthy trend which results in unnecessary misery and torture to numerous effected persons and sometimes not just ruined their life but also social status of the family. In Saritha vs. R. Raamachandra 7 it was said, that the court would like to go on the record that for very trivial issues the educated women are approaching the courts for divorce and restoring to proceedings against in laws under 498-A IPC and this is nothing but misuse of the beneficial provision intended to save the women from unscrupulous husbands. It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well-meaning people or the courts. And the sanctity attached to the marriage through conciliatory efforts till last, are being buried neck deep. The misuse of Section 498-A can lead insurmountable harassment agony and pain to the complaint accused and his close relations. So its very necessary that allegations of the complaint
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z are required to be scrutinized with great care and circumspection. Experience reveals that long and protected criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. it is also a matter of common knowledge that in cases filed by the complainant if the husband or the husbands relatives had to remain in jail even for some time , it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful and due to this kind of false allegation the social status the family concerned is damaged. The other main issue regarding the misuse of the provision is that it does just not add to the suffering but it is also the violation of individual fundamentals rights8 against whom these laws are used with bad motive. There are many instances when the member of Parliament have been raising questions in the parliament at regular interval regarding the heavy misuse of IPC Sections 498-A, 304-B, Dowry Prohibition Act and related laws. Please find some of the questions raised by members of Parliament regarding heavy misuse of women centric laws in the table given by7. A Right to Information application directed to the Ministry of Home Affairs in 2005 revealed some shocking figures. In 2005, among the 58,319 dowry cases that were registered, 10,491 cases were not charge-sheeted because they were based on frivolous grounds. In the same year, 134,757 people underwent arrest for 58,319 complaints under Section 498-A and Dowry Prohibition Act. Among these, 4,744 people who were accused were above 60 years of age and arrested without any verification of the veracity of the complaint.9 We know it is always said that law is the instrument of social change and every act of society has an impact on law and every law had an impact on the society but due to the misuse of these laws there is great negative impact on the society. People are now some way or the other doesnt think marriage as a religious sacrament and its taking shape of contractual form between the parties to the marriage. Due to misuse of these laws many marriages are at the verge of end and many number of marriage already ended in the past by way of seeking divorce. Ones there is a divorce between two parties we find that small childrens are thrown to live with a single parent either mother or father and thats effects there social and moral development. This is also seen that children who live with one parent are more involved in illegal activities and they are less socially, morally and intellectually well versed. These laws are made to protect women form the torture but it has left a very bad taste because womens not just use the laws for their protection but also use it as a weapon to harass there husband and his family. So the misuse of these laws leads to a great negative impact on the society and social welfare. The most common and extreme form of exploitation of a husband and his family by a wife and her family is by making false charges of 498-A.10 There are many cases when the court had found that these laws are being misused.11 Due to misuse of 498-A lot of people including small childrens, old ladies and men are put behind the bar and that effect a lot to them due to their physical condition even sometimes school
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z going children are farmed with these charges which leads to loss of their academic and also criminalize their innocent minds. ROLE OF MEDIA AND FAMILY MEMBERS The family members play a direct role in false complaints and even sometimes its seen that they help the wife to formulate false situation and false statement, sometimes they directly help by being witness in the case and the wife is also supported by her family to meet the litigation cost which some way or the other put forward the wife to make false allegation against her husband and if we see media plays a big negative role in these kind of false cases and due to them all the sympathy of general public goes with the wife and from the very first day of the filing the report the husband is shown as the culprit and media show the case in such a way that a natural kind of biasness develops with the wife and due to which the society and womens organizatio ns are provoked and the husband and his family are implicated as guilty there are rallies and Dhahrans in front of their houses, representations to the highest authorities and lot of harassment. Though often police becomes active in apprehending, arresting and interrogating them, the result is that the verdict precedes trial. There are pressures to punish the guilty even before the guilt is established this has a bad effect on the course of trial besides, such reports in newspapers etc. cause irreparable damage to their honour and dignity. The whole world reads the story of the newspapers where innocent may be falsely implicated but when after a due trial they are acquitted being not guilty, no one would know.12 Is this not a source and form of extreme torment and anguish to innocent men and families? CONCLUSION Anyone who has been awake the last two decades knows how section 498-A of IPC has been heavily misused, dragging innocent men and women into police stations, lock-ups and courts, thus depriving many young children of a happy childhood, many youth of productive careers and many senior citizens of mental peace in the last leg of their lives. The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband but after going through all the above cases I have come to the conclusion that section 498 -A of IPC is heavenly misused and there are clear instances when this law which is meant to protect the women is used like them as a weapon to harass their husbands and there family. And there is no doubt that there is great need to protect our society from the misuse of these laws and following are few steps that will help to stop the misuse of these laws. We still have a huge responsibility to appraise, the still oblivious large section of the society, of the bane it possesses. Gender biased laws have relevance and need to be upheld till the journey to an equalitarian society is successfully accomplished. Yathra, Narayanthya Pujyathe Raman the Tatra Devatha, has been the culture of our society and the girls have been worshipped and held
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z in high esteem, so, the laws which establish the same, are germane and should be upheld. Thus, gender biasness in Indian context is a matter of great discussion. SUGGESTIONS

No arrest before final Judgment/Order in case of a complaint under 498A Implement recommendations of Law Commission and Malimath Committee to make 498-A bailable. Pass necessary orders to stop arbitrary arrest of elderly persons, children and pregnant sisters. Punishment for those filing false cases under 498-A, 304-B, Dowry Prohibition Act and related laws. Direct the Union Government to bring in amendments to make IPC 498-A Gender Neutral so that those husbands and in-laws who are harassed can also make complaint under this IPC section.
REFERENCES: _______________________________
1. Preeti Gupta vs. State of Jharkhand and Another criminal appeal no. 1512 of 2010. 2. P.K.Das, Law relating to Cruelty to Husband, (Universal Law Publishing .Co. Pvt. Ltd 2008) p.50. 3. http://www.harmonyindia.org/hportal/VirtualPageView.jsp?page_id=6193 (Accessed on 12 July 2013, 4:20 pm). 4. Universal Criminal Manual, (Universal Law Publishing Co. Pvt. Ltd. 2009) p.549. 5. Preeti Gupta vs. State of Jharkhand and Another criminal appeal no. 1512 of 2010 . 6. 1987(1) CRIMES -76. 7. (2003) DMC 37 ( DB ). 8. Article 20-No person shall be convicted of any offence except for violation of the law in force at time of the commission of the act charged as an offence as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. 9. www.498a.org.in (Accessed on 12 July 2013, 4:40 pm). 10. Ministry of Home Affairs, RTI No. 24013/20/2006-SC/ST-W. 11. Kusum, Harassed husbands, Regency Publications New Delhi, 1993 at p.25. 12. www.498a.org.in (Accessed on 12 July 2013, 4:40 pm). 13. Kusum, Harassed husbands, Regency Publications New Delhi 1993 at p.35.
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INTERNAL DISPLACEMEN T AND GENDER BASED VIOLENCE

SHARATH RAJ* INTRODUCTION
ar or armed conflict is characterized by outbursts of primitive, raw violence. When states cannot or will not settle their disagreements or differences by means of peaceful discussion, weapons are suddenly made to speak. War inevitably results in immeasurable suffering among people and severe damage to objects. War is by definition evil, as the Nuremberg Tribunal set forth in its judgment of the major war criminals of the Second World War. Yet, states continue to wage wars and groups still take up weapons when they have lost hope of just treatment at the hands of the government. And no one could condemn a war waged, for example, by a small state protecting itself against an attack on its independence or by a people rebelling against a tyrannical regime. Laws and customs regulating warfare may be traced back to ancient times. While such norms have varied between civilizations and centuries, and were often shockingly lax by modern standards, it is significant that diverse cultures around the globe have recorded agreements, religious edicts, and military instructions laying out some rudimentary ground rules for military conflict. Armed conflict often represents the dark side of human nature such as anger, greed, vengeance, false pride, strong sense of ill feeling, intolerance, or hatred. War and armed conflict survive in both international and national societies, despite the fact that most ancient civilizations of the world have clearly laid down humanitarian rules which were required to be observed, by nations who go to war. Indeed, the human society has till this day failed to abolish use of violence in interstate relations and intra community relations. War and violence today spare no one, but they affect men, women, boys and girls in different ways. More conflicts are now fought internally between rival ethnic, religious or political groups over the control of resources, territories or populations. But whether the violence is internal or cross border, civilians are all too often caught in the firing line, directly targeted or endangered by the proximity of the fighting. Women and girls in war torn countries are therefore faced with unimaginable risks, threats and challenges. War can mean violence, fear, and loss of loved ones, deprivation of livelihood, sexual violence, abandonment, and increased responsibility for family members, detention, displacement, physical injury and sometimes death. It forces women and girls into unfamiliar roles and requires them to strengthen existing coping skills and develop new ones.
SHARATH RAJ P.A. RESEARCH ASSOCIATE, (UGC, MAJOR RESEARCH PROJECT) AND RESEARCH SCHOLAR, DEPARTMENT OF STUDIES IN LAW, UNIVERSITY OF MYSORE,
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z INTERNAL DISPLACEMENT Internally displaced persons are part of the broader civilian population that needs protection and assistance because of conflict and human rights abuses or due to natural disasters. Internally displaced people are often wrongly called refugees. Unlike refugees, internally displaced persons have not crossed an international border to find sanctuary but have remained inside their home countries. Even if they have fled for similar reasons as refugees, internally displaced persons legally remain under the protection of their own government even though that government might be the cause of their flight. As citizens, they retain all of their rights and protection under both human rights and international humanitarian law. For decades severe and sudden crisis have caused massive displacements of population groups within national boundaries. These require an urgent humanitarian response. When large groups of people are displaced within a country, the public authorities who have the primary duty of care can find their resources overstretched and weakened. Displacement has serious consequences for many different groups. It is covered by the legal framework such as national law, international humanitarian law where applicable and international human rights law, protecting the displaced themselves, those left behind and the host communities who share their resources with the displaced group. The term internally displaced persons is now used virtually unanimously by the international community, as though the reality it designates were uniform and agreed. Yet, depending on the context and on who is using the term, the population group to which it refers is very heterogeneous. The internally displace persons can be defined as persons or group of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human made disasters, and who have not crossed an internally recognized state border.1 The displaced population is an uprooted population living in a no mans land between war and peace, between here and there. As the result of violence and up rootedness, it is slipping into a new condition that seems to be never ending. GENDER BASED VIOLENCE Physical and sexual violence, particularly against women, continues to be a well documented feature of armed conflict. Although it is most often women who are targets, both women and men may be victims and subject to rape; increased rate of sexually transmitted infections, damage to physical and psychological health, disruption of lives, and loss of self confidence and self esteem.
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z Some types of gender based violence are experienced almost entirely by women and girls during and after conflict, such as forced prostitution and sex work; increases in trafficking for sexual or other types of slavery; and forced pregnancy. Also, the impact of gender based violence has distinct consequences for women and girls including sexual mutilation; sterility; chronic reproductive and gynecological health problems; and marginalization from family and community due to stigma associated with sexual abuse. In conflict zones, sexual violence becomes a weapon of ethnic cleansing.2 After incidences of sexual violence, women are often rejected by family or community. Despite pity for the trauma the women have suffered, society marks the victims as damaged goods. Women also have particular healthcare needs as a result of these violations. For example, they require additional nutritional and health support if they are pregnant or lactating. Food scarcity and inequalities in food distribution are exacerbated during periods of armed conflict, rendering women and girls more susceptible to malnutrition. The guiding principle on internal displacement explicitly provide protection for displaced women against violence and exploitation and promote their equal access to assistance, services and education, as well as their participation in decisions affecting them, reflecting international law such as the Convention on the Elimination of All Forms of Discrimination against Women. Provisions in favour of displaced women are guided by the need to safeguard them from gender based violence, and to uphold their rights to equal access to services. In practice the rights of displaced women were violated in many countries with often devastating physical and psychological consequences for them and their families. Rape and sexual exploitation of children and women have remained a frequent characteristic of conflict and displaced women and children are at particular risk. In conflicts with an ethnic dimension, systematic rape has commonly been used to destabilize populations and destroy community and family bonds. Displaced women have faced an increase in abuses such as domestic violence, and exploitation by people in positions of power, including those who control and distribute humanitarian assistance. Despite lack of comprehensive statistics on sexual or gender based attacks in countries undergoing internal displacement, there is a clear sexual or gender based violence against displaced women or children. Government troops were cited as the primary perpetrators of sexual abuses, followed by members of armed non state groups, criminal groups and the general population and in few instances peacekeeping troops.3 When mentioning sexual violence as a war crime or as a crime against humanity or as an evidence of genocide, it is here referred to human actions and techniques whose main aim is the destruction, death, annihilation, disintegration and humiliation of human beings, countries, ethnic groups, nations, in total people and their geographical and political surroundings. Domestic and
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z international wars are not an invention of the present century. War is a mistake that has been happening from the back room of history. The last century, has evolved to become sexual aggressions targeting, mainly but not exclusively, women. It is a new instrument of terror and ethnic cleansing. This phenomenon has claimed the attention of women and men who are realizing how the female body has become a new extermination weapon used by men to humiliate each other. RAPE-A NEGLECTED CRIME Rapes and other sexual crimes against personal integrity and dignity have been happening in every armed conflict. Before 1990, previous to the Balkan war and Rawandas genocide, sexual violence or gender violence was not typified as war crime. Historically, war laws prohibited crimes of sexual nature. In the Hague Convention, only article 46 rejects slightly and indirectly, sexual violence when it was typified as a breach to family honour. In the 46 volumes and in the 732 page index of the Nuremberg Trials transcription, the words woman and rape do not appear once, even when crimes of sexual violence against women, from different national armies involved in World War II were so widely documented.4 In the five supplementary indexes to the 22 volumes of the Tokyo trials transcriptions the word rape" is included in the list of atrocities committed by the Japanese Imperial Army in the Far East War. However, during the trials there were only four references and nobody was condemned as perpetrator of the atrocities.5 Protection of women in wartime is enshrined in international humanitarian law, which is binding on both states and armed opposition groups. This body of law, which includes the four Geneva Conventions of 1949 and their two Additional Protocols of 1977, provides protection for women as civilians and as captured or wounded combatants. Many of its rules constitute customary law and are therefore binding on parties to an armed conflict whether they have ratified the relevant treaties or not. In the 429 articles conforming the four Geneva Conventions of 1949, only in article 27 of the fourth convention is it possible to find a paragraph which explicitly protects women against rape and enforced prostitution, which could be interpreted as prohibitions of sexual violence. In just one line in each of the two additional conventions protocols, it is possible to find an explicit prohibition of sexual violence described here as illegal i.e. protocol I, article 76 and protocol II, article 4.6 It is advisable to make clear the differences between sex and gender to avoid any unnecessary confusion. Here, referring to sex, it has to be understood as the biological differences between men and women.
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z ARE WOMEN MORE VULNERABLE THAN MEN? Women are often portrayed as helpless victims and as a particularly vulnerable group in situations of armed conflict. However, women are not vulnerable as such. On the contrary, many display remarkable strength and courage in wartime, protecting and supporting their families or perhaps taking on the role of combatant or peace activist. They often find indigenous ways of coping with the difficulties they face. The real question is not who is more vulnerable but rather who is vulnerable to which particular risk. Women and men are often exposed to different risks. While men make up the vast majority of those killed, detained or made to disappear during war, women are increasingly targeted as civilians and exposed to sexual violence in times of conflict. They also generally bear all the responsibility for ensuring the day to day survival of their families. Obviously, it is simplistic to judge vulnerability based on stereotypes. A thorough assessment should be carried out to assess every situation, in order to identify who is most vulnerable and why. RAPE AS A METHOD OF WARFARE Rape is considered to be a methods of warfare when armed forces or groups use it to torture, injure, extract information, degrade, displace, intimidate, punish or simply to destroy the fabric of the community. The mere threat of sexual violence can cause entire communities to flee their homes. By violating women, arms bearers are able to humiliate and demoralize the men who could not protect them. Where the integrity of the community and the family is perceived as bound up in the virtue of women, rape can be used as a deliberate tactic to destabilize families and communities. As in many contexts a woman who has been raped is believed to have brought dishonor upon her family or community, victims may be abandoned or even killed to salvage the familys reputation, a so called honour killing. Victims of sexual violence may also be rejected by their community on the assumption that they have been infected with sexual transmitted diseases.
LASTING SCARS
Rape may leave a victim with no visible injuries. And yet her trauma, both physical and mental, can be agonizing and enduring. Rape can have severe consequences for a womans health, ranging from sexually transmitted infectious to infertility or incontinence. In some countries affected by conflicts sexually transmitted diseases rates are rising due to the high number of rapes committed by arms bearers, a phenomenon that is often exacerbated by increased population displacement and vulnerability. Acts of sexual violence can cause long lasting psychological trauma and severe depression. If the woman in question is a breadwinner, the economic life of her entire family may be affected; the trauma may make it impossible for her to care for her children and other family members who depend on her for their survival.
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z Raped women often have to deal with unwanted pregnancy and may reject their children because they are a constant reminder of the horror they have suffered. However in countless instances, women accept and take care of these children. For fear of stigma or reprisal, most rape victims keep quite. Rape is rarely addressed openly, as sex is often a taboo subject and the scars may be outwardly invisible. All these factors can make it very difficult, even dangerous for humanitarians workers to access and assist these hidden victims. Furthermore, extreme care has to be taken to avoid stigmatizing women as rape victims in the eyes of their family or community.
YOUNG GIRLS AS VICTIMS OF GENDER BASED VIOLENCE
The hardship children endure during war strikes at the very heart of childhood. Conflict kills thousands of girls and boys and disables many more through injury, disease or malnutrition. The experience of war often harms childrens physical development while the violence they witness inevitably has a psychological impact. War frequently deprives girls and boys of family members, educational opportunities and health services, as well as carefree time spent with friends in the playground. Girls per se are vulnerable in armed conflicts, but the younger they are, the more vulnerable they are. As children, they can be categorized as vulnerable by virtue of their age, their stage of development and their dependence on others for their well being. As females, they may face the same discrimination, challenges and risk that women are exposed to. Girls safety depends largely on the traditional protection afforded to them by their families and communities. However, during conflict, communities and families are fragile. They may be forced to flee their homes and in the chaos children may become separated from their parents. Girls alone are frequently exposed to threats, abuse or violence from members of military forces or armed groups or other men, including those who were supposed to be protecting them. Arms bearers often abduct girls to fight or to serve as forced labour to cook, clean and fetch water and firewood. All of the above leaves girls vulnerable to sexual violence, which often has even more serious consequences for girls than for women. The violence of the act combined with their physical immaturity increases the likelihood of physical trauma and of sexually transmitted infections. In some cultures rape victims are considered unmarriageable, meaning that a girls entire future in her community may be jeopardized. Early pregnancy, often a result of rape or exploitation, poses a serious threat to a girls health. Girls who become pregnant prematurely are at great risk of complications and death, especially as medical as services are often scarce in wartime. Motherhood at a young age also has profound socioeconomic implications, since girls encumbered by child rearing are generally unable to complete their education and are thus consigned to a lifetime of poverty.7 INTERNATIONAL AGREEMENTS FOR THE PROTECTION OF WOMEN
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z There are several international agreements that form a basis for peace building with allowance for gender equality. The Convention on the Elimination of All Forms of Discrimination against Women was adopted in 1979 by the United Nations General Assembly and has been since that time the base for all international equality policies. It also demands affirmative measures for the preferential promotion of women and active political and legal steps for gender equality. Another notable platform is the 1995 the Beijing Platform for Action adopted at the United Nations World Conference on Women and armed conflicts. Based on these two important documents, the UN Security Council adopted resolution 1325 on women, peace and security in the year 2000. This is the first Security Council resolution dealing with the impact of armed conflicts on women and girls and with their active role in all phases of peace processes, which has contributed to raising international awareness, as evidenced by the following resolutions.
UNITED NATIONS SECURITY COUNCIL RESOLUTION 1325
In October of 2000, the United Nations Security Council held a debate on Women, Peace and Security, which led to the passage of Security Council Resolution 1325 on 31 October 2000. Among other things, the Resolution recognizes that an understanding of the impact of armed conflict on women and girls and effective institutional arrangements to guarantee their protection and full participation in the peace process, can significantly contribute to international peace and security. The United Nations calls on all parties involved in conflict and peace processes to adopt a gender perspective. 8 This will include supporting local womens peace initiatives and indigenous processes for conflict resolution. The nongovernmental organization Working Group on Women, Peace and Security is working to ensure the implementation and raise the visibility of United Nations Security Council Resolution 1325 and incorporate more women in peace and security issues.
UNITED NATIONS SECURITY COUNCIL RESOLUTION 1820 (2008)
In 2008, the United Nations Security Council adopted Resolution 1820 on Sexual Violence in Conflict and Post Conflict Situations to halt acts of sexual violence against civilians in conflict zones, which specifies certain points already cited in Resolution 1325 in more detail but also extends it. Greater stress is placed on the prevention and punishment of sexual violence. This has elevated sexual violence to the status of a separate security theme with a direct bearing on peace building, reconciliation and lasting peace. Rape and every other form of sexual violence can therefore be treated as a war crime, a crime against humanity or a constitutive act of genocide.9
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z Another resolution was prepared and adopted in 2009 on the basis of these two documents, Resolution 1888 on the Protection of Women and Girls from Sexual Violence in Armed Conflicts.
UNITED NATIONS SECURITY COUNCIL RESOLUTION 1888 (2009)
It calls for the appointment of a special envoy and expert teams to expedite the implementation of Resolution 1820 and provide the United Nation strategy with the necessary leadership. In addition to human rights observers and gender advisers in the course of United Nation peace building and peacekeeping operations, women protection advisers are also to be assigned. It provides for raising the number of women in peacekeeping operations, stepping up training for the protection of the population against sexual violence and ensuring full accountability for offences by personnel.10 It also places general emphasis on improving the means of sanctioning sexual violence.
DIFFICULTIES IN IMPLEMENTATION AND ENFORCEMENT
Although the importance of these laws, resolutions, conventions and commitments must not be understated, they are limited in their application. International commitments are difficult to enforce in practice because of the limited interpretations of human rights that deny various forms of gender specific violations. Also, a range of cultural, historical and patriarchal justifications exist for the exclusion of gendered concerns in both human rights and human security approaches. This oversight is reflected in the use of language in international laws, in that emphasis is placed on women and girls in isolation as opposed to gender and gender relations. Furthermore, many states have yet to ratify these international commitments. Finally, despite the availability of this information, communication and information sharing with respect to these laws and commitments within organisations and between policymakers and grassroots organisations has been poor. CONCLUSION Despite all the hardship women endure in armed conflicts, the image of women as helpless victims of war is flawed. Women are playing an increasingly active role in hostilities whether voluntarily or involuntarily. Women may be found in military dress or lining the perimeters of prisons to visit relatives. They may be found queuing for food parcels or clearing debris from their shelters in transit camps. Many also play a proactive role post conflict in peace building and social reconstruction. On a daily basis in conflicts around the globe, women demonstrate their resilience by caring for family members and by holding communities together. Much on wars impact on women depends on how a womans personal safety is affected, how well equipped she is to ensure her survival and that of her family, whether she suffers injury or loss and if so how she deals with it. It is also often a consequence of what happened to the men of her family. Women benefit from the general protection afforded by international humanitarian law. Along
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z with the rest of the protected population, they must be able to live free from intimidation and abuse. In addition, international humanitarian law includes a specific protection regime for women, primarily in respect of their health and hygiene needs and their role as mothers. Human rights law and refugee law and guiding principles on internal displacement provide further protection for in times of violence. Hence, the tremendous difficulties women continue to face in todays conflict do not arise because of gaps in the law, but rather because the law is not sufficiently respected, implemented or enforced. Real peace does not only mean the end of armed conflict, but rather the establishment of durable and inclusive social institutions. Conventions designed to protect the human rights of marginalised groups, particularly women, during and after conflict do exist. However, the negative impacts of war, such as forced displacement and gender based violence, continue to destroy families and communities. Interventions such as humanitarian aid and peace keeping are meant to alleviate suffering and assist in the reconstruction process, but where administered without regard to gender, they may actually exacerbate inequality.
REFERENCES:
1 2
Yoram Dinstein,(2004), The Conduct of Hostilities under the Law of International Armed Conflict, United Kingdom, Cambridge University Press,p.77.
Pablo Antonio Fernandez,(2005), The New Challenges of Humanitarian Law in Armed Conflicts, London, Nijhoff publishers,p.232. 3 International Review of the Red Cross, Volume 91 Number 875 September 2009, Humanitarian debate: Law, Policy, action Displacement, p.23.
4
Zarkov, D., Towards a new theorizing of women, gender and war, in Evans M., K. Davis & J. Lorber (eds.) Handbook of Gender and Womens Studies, 2006, SAGE, p.214-233
5
International Review of the Red Cross, Volume 91 Number 875 September 2009, Humanitarian debate: Law, Policy, action Displacement,p.24 6 Id 7 Peter D.Trooboff,(1975),Law and Responsibility in Warfare-The Vietnam Experience, United States,University of North Carolina Press.
8
United Nations Security Council, Resolution 1325 (2000), Retrieved April 20,2013 http://daccessdds.un.org/doc/UNDOC/GEN/N00/720/18/PDF/N0072018.pdf?OpenElement 9 United Nations Security Council, Resolution 1820 (2008), Retrieved April 20,2013 http://daccessdds.un.org/doc/UNDOC/GEN/N08/391/44/PDF/N0839144.pdf?OpenElement (English) 10 United Nations Security Council, Resolution 1888 (2009), Retrieved April 20,2013 http://daccessdds.un.org/doc/UNDOC/GEN/N09/534/46/PDF/N0953446.pdf?OpenElement
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THE DISPUTED NAXALISM IN THE PRESENT SCENARIO

SHAYAMVAR DEB MADHURJYA JYOTI GOGOI* INTRODUCTION It would be an exagerration to say that the problem of Naxalism is the single biggest internal security challenge ever faced by our country. Dr. Manmohan Singh, Prime Minister of India.1
he Naxalites are a group of radical extremist leftist wing which have been actually derived from the communist rebellion or revolutionary part which is not going for a parliamentary hold in a country but it is trying to bring a revolution within a nation whereby a tumultuous situation has arrived. Similarly the naxals or naxalites or naxalvadis in India took birth in a village of West Bengal from whereby they are prevailing in the present situation. it is a militant part of the communist party other than the communist political parties, which dont go for a democracy, parliamentary election, parliamentary provisions like the other leftist political parties. Such a radical left wing goes only for revolution to bring an equality and social justice in the society which is free from bourgeoisie activities and the power of the society is given to the proletariats. The naxalites are indulged in violent armed struggle according to the Chinese communist rebels under the leadership of Mao-Tse-Tung as to get rid of the class struggle and excessive oppression of the landlords, industrialists, tradesmen. Their main struggle is against the whole bourgeoisie society in order to give the total control of the nation on the hands of the working class because the proletariats are main source of the production within the nation and are being oppressed from time to time by the bourgeoisie groups. So the main aim is to take a control over the production of the nation and that only a violent struggle will effectively end the oppression and exploitation of landless workers and tribes and create a classless, casteless and religious less society. FAR-LEFT POLITICS The far-left also known as the extreme left, radical left or ultra left refers to highest degree of leftism in left-wing politics. Actually seeking for a strong and complete social equality in society and the dismantlement of all forms of social stratification far-left seeks to abolish all forms of hierarchy, particularly to end the inequality in the distribution of wealth and power. In the societies that are tolerant to dissent, far-left politics usually participate in the democratic process. Proponents of horse-shoe theory in interpretation of the left-right spectrum argue that the far-left
*
Authors are 3rd Year Students of MATS Law School, Raipur, Chhattisgarh www.rostrumlegal.in/journal |
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z and far-right are more common in part of extremism than that of the moderate centrists.2 THE EVOLUTION OF NAXALS During the Cold War, there was an immense pressure from the westerns specially the US over the USSR and similarly the communist lobbies increased differences between China and the Soviet Union, the 2 major communist blocks of the then globe resulted in a split in the Communist Movement the world over and from then the Chines part of Communism believing in a revolutionary armed practice to bring a social equality became more superior as the the-then Soviet Union started to breakdown and the China emerged a lot through the revolutionary ideas of Mao-tse-Tung. From then the immense out show of the revolutionary pattern emerged in different undeveloped and underdeveloped countries to bring a social equality which provided a gateway in many of the nations worldwide at that time.3 Out of this split emerged the Naxal movement in India. Ideologically, the Naxalites are followers of Maoism, the basic tenets of which urge the oppressed classes to launch a revolution against the exploiting classes. the naxalites, a radical communist wing, based on the principles and ideologies of a triangular pattern whereby following Marx, Lenin and Mao accordingly with the communist manifesto came into account during the mid of the 1960's when an uprising was raised in the Naxalbari village of Darjeeling district at West Bengal took place and turned into an armed violence under the flag of the communist party of India (Marxist-Leninist). The main cause of the revolt was following a protest of the peasants, bhagchasis, mainly the proletariat group of the society against the bargadars, jotedars and zamindars class i.e., the bourgeoisie class of the specific village. Such a movement rose due to several causes as the tebhaga movement of the peasants in the sake of protecting their farming lands, the support of the top-class leaders of the communist party of India (Marxist-Leninist) such as comrade Charu Majumdar, Kanu Sanyal and more. The violent oppression of the landlords finally led to the Naxalbari movement on 1967 whereby the landlords were executed by the peasants and farmers. The term Naxal has its origins in the name of this village. The evolution follows a 3-step margin: 1st (1967-1980) beginning, spread and fragmentation 2nd (1980-2004) consolidation and introspection 3rd (2004-till date) resurgence and intensified revolutionary struggle through the basis of China Nepal based ideologies.4 THE REVOLUTION OF NAXALS First of all during the early 60's the extremist leaders such as Charu Majumdar, Kanu Sanyal and more spitted from the communist party of India (Marxist) due to the entering of this left wing
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z into the far politics of West Bengal and thereby coming into the limelight through election and supporting the non-congress Governments. In 1967, the Communist Party of India (Marxist) consented to contesting elections and forming a coalition government in West Bengal. Disillusioned by this, a group of party activists, led by Charu Majumdar and Kanu Sanyal, staged a violent uprising against the party leadership. The uprising was triggered off in Naxalbari village in West Bengal when hired goons led by the then Indian National Congress Government attacked a tribal who had been granted a piece of land by the court. In retaliation, the local farmers and the rebelling party activists attacked the landlords. this led to the beginning of the Naxalbari revolution and hence All India Coordination Committee of Communist Revolutionaries (AICCCR) was formed after being splitted from the mother party on 1967 and after 2 years this party reemerged as the Communist Party of India (Marxist-Leninist) and carried on revolutionary protests which took its base on Srikakulam of Andhra Pradesh, Lakhimpur of Uttar Pradesh, etc. Majumdar, a great follower of Chinese leader Mao Zedong, urged Indian farmers and lower classes to overthrow the government and upper classes whom he held responsible for their plight. His writings were the foundation of Naxal ideology, with the 'Historic Eight Documents' being the cornerstones. THE NAXALBARI MOVEMENT
5
Throughout 1966 itself the groundwork had been laid. In 1965/66 the Siliguri Group [(of the newly formed CPI (M)] brought out as many as six cyclostyled leaflets calling for the immediate commencement of armed revolution. One of these leaflets gave a call to initiate partisan warfare in the Terai region within six months. Throughout 1966 revolutionaries organized peasant cells in every part of Siliguri sub-division; bow and arrows, and even a few rifles were gathered and liaison established with the Nepalese Maoists active just a few miles away. In late 1966 a Revolutionary Kisan meeting was organised in Siliguri. On March 3, 1967 the seeds of struggle began to sprout as the first spark. A group of peasants surrounded a plot of land in Naxalbari region; marking the boundaries with red flags with the symbol of hammer, sickle and star within it they began harvesting the crop. Then the March 18 Convention was the signal for the peasant upsurge, which engulfed the entire area for four months. The U.F. government in West Bengal sought to diffuse the movement by announcing token land reforms. The revolutionary peasants replied to the revisionist rulers by setting up peasant committees to take over the land of the jotedars. Huge processions and demonstrations were organised by Kisan Committee members, many of whom were armed with lathis, spears, bows and arrows. A sea of red flags struck terror into the hearts of the landlords and the countryside reverberated with the slogan "March forward along the path of armed peasant revolution."6 The first clash was ignited when a share-cropper, Bigul Kisan, was beaten by armed agents of a local jotedar. This was followed by violent clashes and the forcible seizure of land and
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z confiscation of food grains, by armed units of the Kisan Committee. Any resistance by the landlords and their gangs was smashed and a few killed. By end May the situation reached the level of an armed peasant uprising. The CPI (M) leaders, who were now in power, first tried to pacify the leaders of the movement having failed, Jyoti Basu, the then home minister of West Bengal, ordered in the police. On 23rd May the peasantry retaliated killing an inspector at Jharugaon village. On May 25, in Naxalbari, the police went berserk killing nine women and children. In June the struggle intensified further, particularly in the areas of Naxalbari, Kharibari and Phansidewa. Firearms and ammunition were snatched from the jotedars by raiding their houses. Peoples courts were established and judgments passed. The upheaval in the villages continued till July. The tea garden workers struck works a number of times in support of the peasants. Then on July 19, a large number of Para-military forces were deployed in the region. In ruthless cordon and search operations, hundreds were beaten and over one thousand arrested. Some leaders like Jangal Santal were arrested, others like Charu Mazumdar went underground, yet others like Tribheni Kanu, Sobhan, Ali Gorkha Majhi and Tilka Majhi became martyrs. A few weeks later, Charu Mazumdar wrote "Hundreds of Naxalbaris are smoldering in India Naxalbari has not died and will never die." The Communist Party of China, then the centre for world revolution, hailed the uprising. On June 28, 1967 Radio Peking broadcast: "A phase of peasants armed struggle led by the revolutionaries of the Indian Communist Party has been set up in the countryside in Darjeeling district of West Bengal state of India. This is the front paw of the revolutionary armed struggle launched by the Indian people". Within a week, the July 5th edition of Peoples Daily carried an article entitled Spring Thunder over India which said: "A peal of spring thunder has crashed over the land of India. Revolutionary peasants in Darjeeling area have risen in rebellion. Under the leadership of a revolutionary group of the Indian Communist Party, a red area of rural revolutionary armed struggle has been established in India..... The Chinese people joyfully applaud this revolutionary storm of the Indian peasants in the Darjeeling area as do all the Marxist-Leninists and revolutionary people of the world."7 Meanwhile, revolutionaries in Calcutta, who had also been running a campaign against revisionism, took up a massive campaign in support of the Naxalbari uprising. The walls of college streets were plastered with posters saying: "Murderer Ajoy Mukherjee (the Chief Minister) must resign." The revolutionaries [still within the CPI (M)] held a meeting in Ram Mohan Library Hall in Calcutta and formed the Naxalbari Peasants Struggle Aid Committee, which was to become the nucleus of the Party of the future. Simultaneous to the police action, the CPI (M) expelled a large number of their members. Sushital Roy Chowdhary, a member of the West Bengal State Committee and editor of their Bengali Party organ was expelled. So were other leading members like Ashim Chatterjee, Parimal Das Gupta, Asit Sen, Suniti Kumar Ghosh, Saroj Datta and Mahadev Mukherjee. The Darjeeling District Committee and Siliguri Sub-divisional Committee were dissolved.
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z The spark of Naxalbari set aflame the fires of revolution in Srikakulam, Birbhum, DebraGopiballavpur, Mushahari and Lakhimpur-Kheri. The states of West Bengal, Andhra Pradesh, Bihar, Punjab, U.P and Tamil Nadu saw a big spurt in Naxalbari-inspired struggles and Maoist formations sprouted in nearly every state of India. Small countries like Vietnam, Laos and Kampuchea were striking major blows at the might of the U.S. Army; national liberation movements were surging forward in a number of underdeveloped countries; in Europe and America massive anti-imperialist demonstrations against US involvement in Vietnam merged with a violent outburst of the Black and womens movement; the student-worker revolt in France shook the DeGaulle establishment; and, most important of all, in China, the Great Proletarian Cultural Revolution (in the backdrop of the Great Debate) attacked the revisionist ossification and distortions of Marxism. In the Communist arena all Parties throughout the world were compelled to take positions in the Great Debate, between the CPC (Communist Party of China) and the CPSU (Communist Party of the Soviet Union) which had been going on since Krushchev restored capitalism in the USSR in the late 1950s. . Most important, Naxalbari restored the revolutionary essence of Marxism on the Indian soil which had been distorted, corrupted and destroyed by the revisionist semantics of the CPI and the then nascent CPI (M). Naxalbari provided the answers both ideologically and practically and the final goal was communism. While the Naxalbari movement was crushed, the politics and ideology behind the Naxalbari uprising spread throughout the country. The Naxalbari Peasants Aid Committee (or Naxalbari Krishak Sangram Sahayak Samiti) held a conference which decided to form the All India Coordination Committee of Revolutionaries of the CPI(M). On November 12, 13, 1967 communist revolutionaries from all over the country met and established the All India Coordination Committee of Revolutionaries of the CPI(M) A provisional committee was formed to consolidate all revolutionaries and gradually form a revolutionary party. The coordination committee undertook the task of propagating Marxism-Leninism-Mao ZeDong Thought; uniting all communist revolutionaries on this basis; waging an uncompromising struggle against revisionism; developing and coordinating the revolutionary struggles, especially peasant struggles of the Naxalbari type; and preparing a revolutionary programme and tactical line. In May 1968, at its second meeting held on the eve of the first anniversary of the Naxalbari uprising, the coordination committee was re-named as the All India Coordination Committee of Communist Revolutionaries (AICCCR) with Sushital Ray Chowdhary as its convenor. Earlier, the communist revolutionaries decided to bring out a political paper to propagate the revolutionary line. The first issue of Liberation was brought out on November 11, 1967 with Suniti Kumar Ghosh as its editor. Deshabrati was brought out in Bengali. At its peak the circulation of Liberation touched 2,500 and that of Deshabrati 40, 000.
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z Meanwhile Naxalbari-type struggles spread like wild-fire throughout 1968, and the struggle in Srikakulam was growing into a major uprising. Under these conditions the AICCCR in its February 8, 1969 meeting adopted the resolution to form a Party. At the plenary session meeting of the AICCCR held between April 19 to 22, 1969 the final decision was taken and on the hundredth birth anniversary of Lenin the Communist Party of India (Marxist-Leninist) was founded. A coordination committee was formed to draft the Party Constitution and prepare for the Party Congress. The Partys formation was announced by Kanu Sanyal at a mammoth May Day rally held at the Calcutta Maidan. In the process of formation of the Party the Dakshin Desh group and the APCCCR (Andhra Pradesh Coordination Committee of Communist Revolutionaries) did not join. The Dakshin Desh Group went on to form the Maoist Communist Centre (MCC) which is today, along with CPI (ML) Party Unity, spearheading the armed struggle in Bihar and some parts of Jharkhand. The APCCCR continued with its right deviations, later splitting into two factions - the T.Nagireddy-D.V.Rao faction of the UCCCRI (ML), and, the C.P.Reddy faction which later merged with the revisionist Satyanarayan Singh faction of the CPI (ML) in 1975 only to split again into a number of factions. By mid-1969 the government had moved in the para-military forces into all the struggle areas and a man-hunt was launched for the leaders of the CPI (ML). The movement went fully underground. In April 1970 the government raided the office and printing press of Liberation and Deshabrati which too continued from the underground. The government began its campaign of liquidating the communist revolutionaries. On May 15, 16 1970 the Eighth Congress [in continuation of the 7th Congress held by the CPI (M)] of the CPI (ML) was held under conditions of utmost secrecy. 8 The Congress was held on the first floor of a building in the railway colony in Garden Reach, Calcutta. On the ground floor were over fifty volunteers who had gathered to celebrate a mock wedding. Some were family members of the delegates. The blaring loudspeaker helped drown the noise of the heated debates taking place above. The Congress was attended by about 35 delegates from all over the country and elected a 21 member central committee representing comrades from West Bengal, Andhra Pradesh, Bihar, Punjab, U.P, Tamilnadu, Orissa, Kashmir and Kerala with Com. Charu Mazumdar as general secretary. The nine-member politburo comprised Charu Mazumdar, Sushital Roy Chowdhary, Saroj Datta, Souren Bose (all West Bengal), Satyanarayan Singh (Bihar), Shiv Kumar Mishra (UP), Shroff (Kashmir), Appu (Tamilnadu) and the two seats allocated for A.P. were never filled. THE PRAIRIE FIRE The cream of Indias youth and students joined, what came to be known as the Naxalbari
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z movement. While the parliamentary politicians were busy playing the politics of power and amassing personal wealth, young revolutionaries were sacrificing everything-studies, wealth, families - to serve the oppressed masses of our country. Displaying a death-defying courage, withstanding enemy bullets and inhuman tortures, facing the their hardships of rural life, thousands of youth integrated with the landless and poor peasants and aroused them for revolution. In Calcutta the university campuses were turning into hotbeds of revolutionary politics. During the 1967-70 periods, the prestigious Presidency College and Hindu Hostel had become the nerve centre for Maoist politics. The Presidency College Students Consolidation emerged as an important force following their overwhelming victory in the student union elections in 1967/68. Throughout 1968 and 1969 the Maoist students wing - the Progressive Students Coordination Committee (PSCC) - captured almost all the student unions of the different institutions in and around Calcutta. The Post-Graduate students federation of Calcutta University under Maoist influence discovered the militant form of Gherao by launching numerous such struggles against the university authorities in 1969. Later, at the call of the Party it was from these colleges that hundreds of students gave up their studies and integrated with the peasant masses. Many became martyrs in the brutal massacres of youth in 1970/71 in which thousands were killed in Calcutta. In Andhra Pradesh it was the students of Guntur Medical College who were the first to come out in support of Naxalbari and form the Naxalbari Solidarity Committee. M. Venkataratnam and Premchand were the pioneers, translating articles from Liberation into Telugu and distributing them amongst the communist rank and file. Chaganti Bhaskar Rao and Devineni Mallikarjunudu were the brilliant medical students who subsequently went to Srikakulam as guerilla fighters. Earlier Bhasker Rao, a gold medalist, had brought out a handwritten magazine, Ranabheri, to disseminate Peking Radio news and articles and propagate Naxalbari politics among students. In Punjab, Bihar, UP, Tamilnadu, Kerala and even amongst the Campuses of Delhi and Bombay thousands of youth were attracted to Maoism and the politics of Naxalbari. Youth, with ideals, at last found a meaning to their lives after total disgust with the deceit, corruption, greed and unprincipled opportunism that pervaded parliamentary politics. Naxalbari symbolized to this youth a new future of justice, truth, equality, humanity and self-respect for the downtrodden which the present society could never give. Fired with this missionary-like zeal they set out to exterminate the perpetrators of injustice, inhumanity, to eradicate the demons and ghosts who run this oppressive system, to remove the sting of the scorpions, snakes and other vile creatures who roam the corridors of power....... to execute the executioners. They sought to create a paradise on earth. They shared the on dreams of their leader, affectionately known as CM, to create a bright future where no person shall go hungry; where no one shall oppress another, where there shall be no discrimination based on caste, religion or sex; where a new socialist human being will be born in whom greed, selfishness, ego, competitiveness will be replaced by selflessness, modesty and cooperation, and where a concern for others will take precedence over
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z concern for oneself. And it is these youth who, together with the more experienced leaders, marched forth to turn their dreams into reality, by building Naxalbari-type struggles in many parts of the country. STATUS IN THE PRESENT SITUATION
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The several Naxalite-Maoist insurgencies has been a source of concern in the country for over four decades and about 20,000 lives have given their lives being the nations citizens which is the nations great shame regarding the protection of its civilians lives.10 The state government of West Bengal has banned the Communist Party of India (Maoist) terming it a terrorist organization. The ban came in the backdrop of violent incidents in Lal Garh and the ongoing operation by Police and Security Forces to reclaim the area in the West Medinipur district of the along with areas of Bankura, Burdwan, Birbhum and Purulia districts. Political differences, especially those between the CPI (M) government in West Bengal and the Congress at the Central, have affected the operation against the Maoists. whereas, the other leftist allies of the left-front government whereby CPI (M) being the strongest political power among the other leftist parties in West Bengal such as the CPI, RSP, Forward Bloc, Socialist Party have opposed the ban imposed by Union Home Ministry on CPI (Maoist), stating that the ban would serve little purpose and that the extremists should be handled politically. The ban on CPI(Maoist) is not a new thing as the three extreme left outfits: Communist Party of India (Marxist-Leninist) Party Unity, the main basic Naxalites Front; Communist Party of India (Marxist-Leninist) Peoples War or Peoples War Group(PWG) active in the southern parts of India mainly in Andhra Pradesh and the other strong point Maoist Coordination Centre or Maoist Communist Centre (MCC), very much active in the tribal and forest areas of Bihar and Jharkhand that merged to form the CPI(Maoist) are already banned along with their front organizations. The CPI (Maoist) now stands as the basic naxalite-maoist group is banned for all practical purposes. Hereby the Maoist Communist Centre as got banned in Bihar as due to its insurgency it changed its name to Maoist Coordination Centre and finally joined the CPI (Maoist) on 2004 as from then it was formed by the collaboration of all these 3 parties under the leadership of Comrade Ganapathy who actually was the father to form this newly born Communist Party of India (Maoist). 11 It was the final view when the movement turned more violent against the Government of India and thereby the several Maoists infected areas within the country along with against the State Governments where the places in the different states are counted as Maoist-prone areas and the death-toll related to the several insurgencies have increased from 638 in 2008 to 997 in 2009 and 1174 in 2010 thereon.12 The Naxalites movement during the early 80s saw two divergent streams of thought emerging which again led to a polarization within. The post-Emergency period saw release of leaders associated with the Communist movement splitting yet again to give birth to the CPI (ML) Peoples War, which espoused a more strident line. In 1982, the formation of the Indian Peoples Front (IPF), which would later become the political front of the CPI (ML) Liberation. It is
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z interesting to note here that the CPI (ML) Liberation made a marked shift away from the ideology of the original CPI (ML). While the original CPI (ML) was committed to an armed struggle against the Indian State, the CPI (ML) Liberation adopted a more centrist line advocating participation in the larger parliamentary democratic process. The CPI (ML) Liberation met with success under the banner of the IPF, its political front, when it emerged victorious in the Ara Lok Sabha Constituency (in Bihar) in the 1989 elections. This was a feat of sorts as Bihar sent the first ever Naxalites to the Lok Sabha in history of Indias Parliamentary democracy. In 1994, the Indian Peoples Front (IPF) was disbanded and the Election Commission recognized the CPI (ML) as a political outfit. It is interesting to note however that one of the official documents of the CPI (ML) Liberation did not rule out the violent path to achieving its final objective. The document states that The Party does not rule out the possibility that under a set of exceptional national and international circumstances, the balance of social and political forces may even permit a relatively peaceful transfer of central power to revolutionary forces. But in a country where democratic institutions are based on essentially fragile and narrow foundations and where even small victories and partial reforms can only be achieved and maintained on the strength of mass militancy, the party of the proletariat must prepare itself for winning the ultimate decisive victory in an armed revolution. A people's democratic front and a people's army, therefore, remain the two most fundamental weapons of revolution in the arsenal of the Party.13 While the CPI (ML) Liberation adopting a more moderate stance and participating in the parliamentary process, the Peoples War Group (PWG) line of thought completely rejected the idea of parliamentary democracy. The PWG emerged as the most important of all the splinter groups as the prevalent Naxal ideology and policies of today arise primarily from the principles espoused by the PWG. At a February 2003 meeting, a decision was taken to come out with a comprehensive document on ideological issues and the future of the Naxalite Movement. The two groups decided to draft five documents: Marxism-Leninism-Maoism, Party Programme, Strategy and Tactics, Political Resolution on the International and Domestic Situation, and the Party Constitution.14 THE RECENT MAOIST ACTIVITIES The assessment, the Maoist insurgency is the worst and steadily worsening of conflict in India, accounts 1180 casualties in 2010 which surpasses the combined total of all other insurgent movements in the country. The Naxalites-Maoists, the liberators, redeemers and saviors representing the down trodden workers and landless poor farmers who have been entangled into vicious circle of poverty, misery and wretchedness. Hence their patience withered away and they turned against the repressive system of government, draconian legislation, evasive political practices and mischievous manifestation of elected representatives, feudal system and
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z bureaucrats. They frequently challenge the writ of the government and disrupt the communication system.15 Being the spokesmen of poor farmers and neglected tribes, the Naxalites enjoy the popular support of the masses they represent. They command the hearts and souls of the people and have started a legitimate freedom movement against Indian rule. Their main support bases are in West Bengal, Bihar, Orissa, Jharkhand and Chhattisgarh. They have the will and the capacity to fight and defeat the Indian Security Forces. Since they enjoy considerable influence in five Indian states therefore their potential to crush Indian Security Forces appears to be a viable assessment and a crystal-clear possibility. So far they have put up the toughest resistance to the Security Forces marking their signatures by frequently challenging and making the state administration ineffective.16 On 16th June, 2009 approximately 300 to 400 Maoist guerillas entered Lal Garh and captured the town including the City Police Station. They also removed all signs and symbols of state authority and openly challenged the writ of the government. They blew up a railway building and damaged three mobile phone towers in Orissa (Koraput district) and cut off 125 villages from rest of the state. Trouble in Karnataka also marked Maoists upheaval blended with inner commotion, rage and cataclysmic activities. In West Bengal the Maoists made an effort to disrupt the supply line of the Security Forces involved in the Lal Garh operation by detonating a landmine at Chara village. During the bandh call (strike), life was hit in Maoist populated areas of Lal Garh, Binpur, Pirakata and Jhargram in Midnapore districts, and areas of Bankura and Purulia. In Bihar the Maoists attacked a police escort at Lakhisarai court and freed their two colleagues including area commander Babulal Besra, blew up a mobile tower at Barachatti village of Gaya district. They also exploded an art and culture building at Madanpur in Aurangabad. The Central Government has launched a massive repressive operation against the Maoists in Lal Garh using over 1000 Security Personnel. The operation is reportedly still going on as BSF and Polices claims to have retaken the town of Lal Garh. Independent reporters state that Maoists still control 90% of the area of district. Indian Security Forces are required to undertake series of operations in five different Maoists affected states. Will they be able to eliminate the Maoist opposition without shedding enormous blood and massive killing, is a big question. Surely another human tragedy and mass exodus is becoming imminent in India.17 THE MAIN CAUSES FOR THE GROWTH When Indian communist movement was already there, what was the need for another radical left movement? It was the ineffectiveness of the communist movement and the callous attitude of the then communist leaders in highlighting and fighting for the issues and problems of the downtrodden classes like peasantry, dalits and tribal communities that insisted the young radicals
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z in the left parties break out of the Marxist fold and form their own group on Maoist line of Revolutionary Communism. Now Naxalites are active in 40% of India's land area. They are active in Chhattisgarh, Orissa, Andhra Pradesh, Maharashtra, Jharkhand, Bihar, Uttar Pradesh, and West Bengal states which are termed as liberated zones by them. Out of these states they control more than 40% of the land area in Chhattisgarh and Jharkhand states. Central Government and State Government has embarked on violent suppression using Central Government forces known as Central Reserve Police Force (CRPF), Border Security Force (BSF) and specially trained anti naxalites forces called Cobras. However the violent repression has only intensified the struggle. Last week in a series of attacks more than 30 CRPF personnel were killed in single day. As Central Government intensifies the repression ordinary masses in these areas are suffering and turning more and more towards Naxalites. Unlike in 1970s Naxalites have a very strong base among adivasis and so called lower caste communities. They have defended these communities against oppressive landlords and corrupt state officials.18 Today Naxalites have approximately 20000 well armed cadres. In addition they have more than 30000 cadres committed to the movement active in the states mentioned above. They have also have sophisticated weapons including mortars. Success of Communist Party (Maoist) in Nepal has encouraged Naxalites. With people's support it can survive and grow as the economic crisis hits the middle classes and urban areas. Naxalites are building networks in the urban areas such as New Delhi, Calcutta and Bombay. They also have support among the urban progressive intelligentsia.19 Data shows that Indias child malnutrition rate is 47 percent (as compared to 30 percent in sub Saharan Africa). India also ranks 66th among the 88 countries in the 2008 Global Hunger Index. India has a very large middle class based on service sector which gets highly affected by the global recession as the demand for Indian software engineers and call centers are being squeezed. At the same time this year, 2012 due to the delay in monsoon, drought is feared in many states. Only 40% of agricultural land is irrigated. Over the last two decades successive Indian governments focused on service sector to the detriment of agriculture. Already Indian Government has banned wheat exports. Drought coupled with global recession will be a disaster to Indian economy. These conditions will only strengthen naxalites movement. It is a matter of time before naxalites movement emerges as major challenge to Indian state in general the naxalites have hitted hardly in the village areas, tribal areas which are generally undeveloped and underdeveloped in nature. The naxalites create guerilla activities in such areas which are generally coming under the forest covered areas in indie. Somehow it is a fact that the mineral rich areas of India such as Chhattisgarh, Jharkhand, Karnataka, etc. are undergoing a massive underdevelopment for which the Maoist-naxalites are getting a basic support from the areas highly. they actually think that the independence of 1947 from the British rule is a fake independence towards them and the democracy being India the largest democracy in the world is also a fake towards them, for which they call that , "ye loktantra jhuta hai".
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z The development programmes for the dalits and tribals have not made much of a dent on the social and economic conditions of a vast section of these two groups. This is borne out by the human development indicators - poverty, literacy, health access to social amenities referred to earlier which show wide gaps in the status of these groups when compared to the other communities. The institutional mechanisms of Special Component Plan and Tribal Sub-Plan have also failed to bridge this gap. A scrutiny of implementation of these two sub-plans shows that the state governments are reluctant to earmark the required allocation of funds for the communities and place them at the disposal of the nodal department. The planning is uncoordinated and ad-hoc. Still worse, the allocated funds remain substantially under-utilized and eventually lapse. There is also disinterestedness to work out a time bound strategy to bridge the development gaps between them and the rest of the population and to design occupation specific schemes to improve their status. Even at the central level, a substantial number of Ministries fail to make any provision under these sub-plans on the ground that their activities are not divisible. As for the extension of credit by the banks, the picture is even more pessimistic. The reluctance of banks to extend credit to the members of these communities is widespread. They are considered non-bankable as they have no collateral security to offer. Even in the programmes where a subsidy component is provided to the banks under the self-employment programmes to induce them to lend, the credit extension is too meagre to be of effective use and that too after a lot of efforts and pressures. The situation has worsened after the reforms initiated on the recommendations of the Narasimhan Committee. The financing and development corporations set up exclusively for these groups to provide capital for self-employment suffer from poor management, low recovery of loan advanced, absence of dedicated field agencies to process proposals and oversee projects and delay in release of share capital by the central and the concerned state governments (Planning Commission, 2007a). Overall, the failure of development efforts to improve the conditions of the dalits and tribals can be attributed to, a) inadequate investment of public resources, b) non-utilization, wrong utilization and diversion of earmarked, allocated or committed funds for their benefit, c) deficiency in planning, d) poor project preparation, e) absence of monitoring, f) unresponsive and even biased delivery system, g) resistance from the non-dalit/tribal communities, h) absence of participation in programmes by beneficiaries and i) powerlessness of the communities to exert requisite pressure. The Panchayati Raj Institutions have made no difference to the situation. This overall picture, however, does not imply that a small section of these communities (referred to as the elite) with benefit of reservation, education and social capital have not improved their status. But the overwhelmingly large number of the dalits and tribals do not show signs of significant change in their status. If the growth cause of Naxalism is referred then it can be enumerated that the very slow implementation of land reform acts, proper panchayat system and different alike negligences and alike failures from the part of the governments have paved the way for such a high level growth for the naxals in different forest-based areas. Such for this the legal and social transformation in those areas also get hampered. It is not the fact that due to huge amount of
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z natural resource or lack of it has increased the growth of Naxalism because they are present in lack of mineral resource areas of Bihar and in highly mineral resource areas of Chhattisgarh. Actually the total resources including mineral and natural are totally governed by the government and the Union as well as the state governments decide how to utilise such resources. Here lies the irony that these decisions of the government were in favour of such industrialists or alike masterminds which created an upheaval situation in the equal distribution of such. It was actually a failure of the governance and thereby some of the individuals who were very much related with such activities and thereby exploited the proletariats which gave the naxals a very strong point to increase their militant activities day by day. The social structure of the society is poor to poor where the naxals exist and there is no significant role of the government officials from the very higher level to the lower level. The police personnel are thereby having no power to act and take necessary steps as the naxalites set up their own judiciary and the final result is execution by their own officials whereby the punishment is death. They have no faith on the police and any of the government officials whereby to carry on their own administrative power they collect levies from the tribal and village people mainly to buy arms and recruit new people. They also collect funds from individuals such as industrialists, groups who are present in 6the village adjoining areas or the adjoining urban and metropolitan areas and if such people are showing no interests in doing such then the final result may be death thereby. Thus, the naxals are trying to create integration among the poors and under the red flag and going through an anti national as well as state government campaign throughout the Red Corridor.20 All the regions in which the Naxal movement took hold are ones with alarming levels of poverty. In Telangana, in the districts of Karimnagar, Adilabad and Warangal poverty was 95.8% while in the rest of the state it was between 50 and 60 per cent. After independence, the Indian Government pursued agricultural policies focused on massively improving output without doing enough to check economic and social disparity. With the commercialization of agriculture, economic disparities widened. The rich got richer and the poor got poorer. The attempt of the government to abolish zamindari created a class of rich peasants from the backward classes. With the spread of communist ideology, there was greater mobilization of the sharecroppers (bargadars) and landless labourers, who mostly belonged to the so called lower castes and tribes. This polarized the agrarian classes and created an environment of confrontation. The oppressed classes were not only exploited as sharecroppers and landless labourers by the landlords - they also fell prey to money lenders. The groups constituting the sharecroppers and the Landless labourers wanted a new social order with equity and the landed classes wanted to retain the prestige and status that was associated with the zamindars under the old system . Alienation of Tribal land was a major issue that crippled their economic welfare. Alienation happened largely because of the money-lenders' trap but also because of the government's restrictions of access to forest land, traditionally the exclusive domain of the tribals. In implementing government regulations on forest access, government officials resorted to harassment of the tribals. Loss of
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z access to forest produce which had constituted a significant part of their income and was also an integral part of their way of life, led to deep discontentment among the tribes. The people who were most affected by the status quo, therefore, were the fuel for the Naxalist fire. The Naxalist movement found enormous support among the educated youth. With the onset of the recession, which signalled the coming of the general crisis of the capitalist path of development, that India had been placed upon for the past two decades, the problem of employment and of careers loomed large for these sections of the student community for the first time. Their sense of disillusionment and the fiery idealism of youth directed them to Naxalism ideology. The repression of Naxalism during the emergency also attracted a large number of youth to Naxalism as a rebellious reaction to the government's oppression. Naxalism appealed to each of these groups for different reasons. Government have prepared a 14-Point Plan to deal with the problem. The salient features of the policy are as follows: deal sternly with the Naxals indulging in violence address the problem simultaneously on political, security and development fronts in a holistic manner ensure inter-state coordination in dealing with the problem accord priority to faster socio-economic development in the Naxal affected or prone areas supplement the efforts and resources of the affected states on both security and development fronts promote local resistance groups against the Naxal use mass media to highlight the futility of Naxal violence and the loss of life and property caused by it have a proper surrender and rehabilitation policy for the Naxals affected states not to have any peace dialogue with the Naxal groups unless the latter agree to give up violence and arms. ADMINISTRATIVE MEASURES i) Security Related Expenditure scheme (SRE) The SRE scheme envisages reimbursing the Expenditure incurred by the state on ammunition, training, up gradation of police posts, etc. At present 76 districts in 9 states badly affected by Naxal violence are covered by this scheme.
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z ii) Strengthening of law enforcement - This includes raising India Reserve Battalions to strengthen the security apparatus at the state level and also releasing funds under the Police Modernization Scheme to the states to modernize their police forces in terms of weaponry, communication equipment and other infrastructure. iii) Backward Districts Initiative (BDI) and Backward Regions Grant Fund (BRGF) The Government has included 55 Naxal affected districts in 9 states under the Backward Districts Initiative (BDI) component of the Rashtriya Sam Vikas Yojana (RSVY). The BRGF scheme covers a total of 250 districts and is to be administered by the Ministry of Panchayati Raj. The scheme should accelerate socio-economic development in these 250 districts. iv) Task Force A Task Force has been constituted in the Home Ministry to deliberate upon the steps needed to deal with Naxalism more effectively and in a coordinated manner. The members of the Task Force comprise Nodal Officers of the Naxal affected states and representatives of the IB, CRPF and the SSB. v) Coordination Centre A Coordination Centre was set up in 1998 headed by the Union Home Secretary with Chief Secretaries and DGPs of Naxal affected states as its members. It reviews and coordinates the steps taken by the states to control Naxal activities. vi) Empowered Group of Ministers At a meeting of the Chief Ministers held on September 5, 2006, it was decided to set up an Empowered Group of Ministers (EGOM) headed by the Home Minister and comprising select Union Ministers and Chief Ministers to closely monitor the spread of Naxalism and evolve effective strategies to deal with the problem. RECENT SOCIAL INITIATIVES i) The Backward Districts Initiative, 2003: The government started the Backward Districts initiative in 2003-2004 and the Backward Regions Grant Fund (BRGF) under which 55 of the worst affected areas in 9 states were to be provided with funds to the tune of Rs. 2475 crores to tackle the problem of Naxalism. Around 250 districts have been included the BRGF scheme to accelerate socio-economic development in these districts which is to be administered by the Ministry of Panchayati Raj. ii) Rehabilitation and Resettlement Policy, 2007 - The Government of India announced a new Rehabilitation policy on October 11, 2007 to make the displacement of people for industrial growth a less painful experience. Land in return for land for displaced families, preference in project jobs to at least a member of each family, vocational training, scholarships for children and housing benefits including houses to affected families in rural and urban areas are some of the benefits under the new policy.
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z iii) Forest Rights Act, 2006 - The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, (popularly Forest Rights Act) is a significant step in Recognizing and vesting the forest rights of scheduled tribes and other traditional forest dwellers who have been residing in such forests for generations but whose rights could not be recorded. It provides a framework for recording the forest rights so vested. iv) National Rural Employment Guarantee Act, 2006 The NREGA is the largest ever employment programme visualized in human history. It holds out the prospect of transforming the livelihoods of the poorest and heralding a revolution in rural governance in India. However, as brought out by the CAG report, there are significant deficiencies in implementation of the Act. There is lack of adequate administrative and technical manpower at the block and gram panchayat levels. This affects the preparation of plans, scrutiny, approval, monitoring and measurement of works, and maintenance of the stipulated records at the block and gram panchayat levels. v) Other schemes: Various Other schemes launched have been launched by the government like the Pradhan Mantri Gram Sadak Yojana (PMGSY) which offers tremendous opportunities for rural road connectivity. The National Rural Employment Guarantee Programme (NREGP) is being implemented in 330 districts affected by Naxalism so as to universalize the demand-driven programme for wage-employment. Other schemes which are in addition to the above mentioned schemes are Bharat Nirman, National Rural Health mission (NRHM), Sarva Shiksha Abhiyan (SSA), Integrated Child Development Services (ICDS) and other income generating and social security schemes of the Ministry of Rural Development, Agriculture, Panchayati Raj and Tribal affairs. The central government will also provide 100 percent assistance in the formation of Ashram schools and hostels for girls and boys in tribal areas. CONCLUSION Being sympathetic towards Maoism and Naxalism, it is the major problem in our country for the 21 Maoists to make a huge encounter towards the government in the present situation militantly. The negligence of the government has paved the way for such a rise of Maoism within India and now the union as well as the state government as facing lots of difficulties towards a smooth administration they have termed the Maoist activities as an internal terrorism, but actually the government is the main machine which helped such people to take arms in their own hands and thereby go for a bloodshed throughout the nation. A man by birth cannot hold arms in his own hand and goes for a bloody war either if the circumstances are willing him to do such. Alike the Indian Government from its independence from the British rule till date is a government based on the imperialistic model except the state communist-leftist governments which have paved the way from a very early moment i.e., from before the Indias independence to give birth of such
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z revolutionists in the country and the later government failed to change these people from their viewpoints. Actually the government failed to do such in the very common terms and somehow it was a great negligence in many parts to stop such revolutionists from being militia. It is a great shame on us being the worlds largest democracy that till date more than 75% of the total population of the nation is still under a deadly poverty and cannot earn more than 20 rupees a day and on the other hand a very 10% are going through all of the efficient facilities which are present in the country as they are very rich. Hence the rich got richer and the poor got poorer. So how can we speak that we are living in the largest democracy of the world where we have no security for food and economic terms. We are passing through a very low GDP and a high inflation which is very much detrimental for a middle class and poor society and overall for the growth of a nation. If we see from the independence period we find that the first ever communist-leftist-led government came into India through a very fair election and the most democratic process under the leadership of E.M.S. Namboodiripad as the Chief Minister of Kerala on April, 1957; whereby he was a CPI leader and the CPI led government came into power thereby which was ruled out through a President Rule diplomaticly on July, 1959 as according to the order of the-then prime minister of India Mr. Jawaharlal Nehru. This was the first ever communist-led government in India as well as in the whole world which came democratically for the first time through a fair election process and it was the first ever election held at Kerala after impendence as thereby it emerged as a state of India on 1956 whereby the first government emerged the communist-led government.2223 So it is a very pathetic view that the Congress led government is a very imperialistic type from the very independence which do not wants any socialistic factor in the view and thinks to carry out the activities according to their own. If we go into the very deep we found that the Congress is a very family oriented political party whereby Mahatma Gandhi, Jawaharlal Nehru, Indira Gandhi, Rajiv Gandhi, Sonia Gandhi, Priyanka Gandhi, Rahul Gandhi are the very factors and other side if we go for a non congress party then we find that BJP, ShivSena, Akali Dal, etc are very religious party which follow a very much Hinduism and so on. These type of faulty ideas are totally banned in a communist party. If it is taken into account then it is very clear that the Chief Minister of Tripura, Mr. Manik Sarkar is the poorest among such in India which is the only CPI (M) led government at present; and if we see into the larger world we see that the president of Uruguay, Mr. Jose Mujica is the worlds poorest president whereby a leftist government is present at present. The imperialistic view of the union government in India led to different movements which have been termed as terrorism so far and the people who are related with such are termed as terrorists but actually this is not a true fact. If it is seen the activities of the police personnel in the villages it is very much sympathetic that they are also collecting funds from the village business people who earn a very little after a day and it is a very common view in the urban and metro cities that the police in the traffic are doing frauds day by day by tolling from the trucks, etc. heavy type of vehicles. Again if we talk about the union ministers we find that they are very famous in scams and they are getting billionaires through such policies, e.g. A Raja, Suresh Kalmadi, Rajiv Gandhi, Mamata Banerjee, Shashi
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z Tharoor, Manmohan Singh, Ashok Chavan and a countless more. If we go through scams we can easily say about 2G Spectrum, Coal Gate, Bofors, Housing, Commonwealth Games, IPL, Chit Funds, etc. Actually the people who have taken arms in their own hands they have no fault in the common sense because the government from the time of independence is coming through falseness which has caused a misrepresentation among the rebels. The poor tribal people who are living in the forest areas and mining areas the natural resources of those areas are being extracted by the government and different government admitted individuals who are specially industrialists for their own beneficial interests and for their own profit; they dont go through the poverty lines and as well dont want to make some positive courses to prevent the poorness in those remote areas. The naxalites have taken the efficiency of such failures of the government and drew a basic support among the tribal and backward classes of the remote areas of the country. They actually dont harm any of the poor tribal and backward people; their main aim is to bring equality among the society through a bloody revolution which the government has itself paved so far. Now the Union Government has a duty to take some positive actions that through which such rebels may come into the main stream and through different development processes in the sake of the development of the tribal areas and backward people. It is also a duty of the Union to take the ban on this political party up and settle the matter politically and thereby give them chance to give a fight politically in the general elections despite they dont follow the parliamentary system and election process. It is the duty of the government to go through several conferences and summits with them and make them understand about the present political situation of India and go through such activities that will help to give up their arms and come into the main stream political system. The Union Government has taken some bloodshed type of steps such as the Operation Green Hunt to finish the lives of the naxalites and thus to finish this war between the authorized and unauthorized government of the country but according to my viewpoint the Central Government along with the State Governments may stop this operation immediately and thus dont go to a bloody hell whereby the citizens of India would see the murders of several lives who are actually the brothers and sisters of them who are living in the nation. And I think such type of activity will not help to end the situation but it will pave the way to maximize the tumultuous situation more and more internally; there will be a more bloodshed and the martyrs red blood will give birth to the dreaming red corridor and thereby the red nation in India. If we look through the outer world we find that the communist-guerilla warfare under the leadership of Ernesto CHE Guevara, Fidel Castro and Raul Castro a communist government was set up on 1959 ousting the General Batista who was backed by the US imperialism. China entered into an armed revolution under the leadership of Mao-Tse-Tung and thereby emerged an independence from the barbaric rule of Chiang-Kai-shek and formed a communist government thereby on 1949 whereby the Peoples Republic of China (PRC) emerged. Ho-Chi-Minh under
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z his leadership brought North and South Vietnam together under the same communist state after going through a great bloodshed armed revolution against the US army and achieved independence on 1975.same conditions also held in cases of North Korea. Laos and Kampuchea but Cambodia (Kampuchea) is not a communist state till date.24
REFERENCES:
1
Government of India Press Information Bureau, Prime Ministers speech to the 2 nd meeting of the Standing Committee of the chief Ministers on Naxalism, April 13, 2006, retrieved June 18, 2011. http://pib.nic.in/release/rel_print_page.asp?relid=17128. 2 Karl Marx and Fredreich Engels, The Communist Manifesto, 1848; Progress Publishers; TranscriptionBiswaroop Bhowmick and Andy Blunden. http://www.marxists.org/bangla/archive/marxengels/1848/communist-manifesto/istahar.pdf. http://www.marxists.org/archive/lenin/bio/prilezhayeva.htm. 3 Bishnu Pathak, Ph.D.; Politics of Peoples War and Human Rights in Nepal; BIMIPA Publications, Kathmandu; 1st Edn. September, 2005; ISBN 99933-939-0-8; Jagadamba Press Pvt. Ltd.; Bishnu Pathak, 2005. 4 Dr. Narayan Chopra, Naxal Movement in India: A Geographical Overview and Analysis: Review Of Research (FEB ; 2012). http://www.scribd.com/doc/145620860/thesies. 5 Welcome to the Website of CPI(M) - West Bengal State Committee. http://www.cpimwb.org.in/history_details.php?history_id=8. 6 Naxalbari: The Begining; The Indian Express : Naxalbari, Sun Jun 28 2009, 04:34 hrs. http://www.indianexpress.com/news/naxalbari-the-beginning/482324/. 7 Sohail Jawaid; The Naxalite Movement In India; (Origin and Failure of the Maoist Revolutionary Strategy in West Bengal 1967-1971); Associated Publishing House, New Delhi. http://books.google.co.in/books?id=1h3JLSHU0cC&pg=PT200&lpg=PT200&dq=Sohail+Jawaid;+The+Naxalite+Movement+In+India;+(Origin+and+Failur e+of+the+Maoist+Revolutionary+Strategy+in+West+Bengal+19671971);+Associated+Publishing+House,+New+Delhi.&source=bl&ots=77JIxFLGaD&sig=vIhMZT9hSxx0y7k0 NiS4eOPW7yE&hl=en&sa=X&ei=fGrmUZOZJYTtrQfkxIHQBw&ved=0CDMQ6AEwAg. 8 Communist Party of India (Marxist); Members of the Polit Bureau; 7 th 19th Party Congress. http://www.cpim.org/content/members-pb-7th-19th-congress. 9 Rajat Kujur; Naxal Movement in India: A Profile; IPCS Research Papers; September,2008;Institute of Peace and Conflict Studies; New Delhi, India; 2008, Institute of Peace and Conflict Studies (IPCS). http://www.ipcs.org/pdf_file/issue/848082154RP15-Kujur-Naxal.pdf. 10 R Bedi, Indias mosaic of conflict; Janes Terrorism and Security Monitor, July 14, 2004. 11 Bert Suykens; Maoist Martyrs: Remebering the revolution and its heroes in Naxalite propaganda (India). Terrorism and Political Violence, vol. 22, no. 3, 2010, pp. 379. 12 Non-state armed groups, India; Janes Sentinel Security Assessment South Asia; April 26, 2011. 13 Sharvan, the then Secretary Bihar State Committee of CPI (ML) Peoples War, in an interview given to Peoples March Voice of the Indian Revolution; Volume 2, No.3, March 2001. http://www.bannedthought.net/India/PeoplesMarch/PM2001-01.pdf. http://www.rakshakfoundation.org/wpcontent/uploads/2011/08/White-Paper-on-Naxalite-Movement-in-India.pdf. 14 Shrey Verma; Far Reaching Consequences of the Naxalites Problems in India, Understanding the Maoist Problem; July 2011; Rakshak Foundation; 2011. http://www.rakshakfoundation.org/wpcontent/uploads/2011/08/White-Paper-on-Naxalite-Movement-in-India.pdf. 15 South Asia Terrorism Portal, India Assessment 2011, retrieved June 19, 2011. http://www.satp.org/satporgtp/countries/india/index.html. 16 Sumit Bhattacharya; TNN; Dec, 11, 2012; 03:46 a.m. IST. http://articles.timesofindia.indiatimes.com/201212-11/visakhapatnam/35750391_1_militia-members-mid-day-meal-scheme-dropout-rate 17 Red Barricade: Lalgarh: Chronicle of State repression; Anandabazar Patrika, ABP Group; Kolkata; 17 th June, 2009. http://redbarricade.blogspot.com/2009/06/state-repression-in-lalgarh.html.
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18
Excerpts of Interview with Comrade Ganapathy; Peoples March - Voice of the Indian Revolution; vol. 8, no. 7; July 2007. http://www.bannedthought.net/India/PeoplesMarch/PM2007-07.pdf. 19 Basudev, a Orissa based journalist since 1992 involved in print, tv and internet media and also a documentary film-maker; Naxal Movement in India: Peoples' Struggle transformed into a Power Struggle; Sulekha.com. http://rivr.sulekha.com/basudev_951674. 20 Sushil Kumar Singh, Causes of Naxalite Movement; Research Scholar, Department of Economics, Banaras Hindu University,Varanasi, U.P., India. http://www.scribd.com/doc/127125799/Causes-of-NaxaliteMovement-Sushil-Kumar-Singh 21 The Resurgence Of Naxalism: How Great A Threat To India?; Keith J. Harniteaux; June 2008; (Thesis), Thesis Advisor: Feroz Khan; Second Reader: Anshu Chatterjee. 22 HISTORY OF KERALA LEGISLATURE - Government of KERALA. http://www.geocities.ws/keralaforum/1957.htm. 23 KERALA Assembly ELECTION Results 1957 - GEOCITIES.ws. http://www.kerala.gov.in/index.php?option=com_content&view=article&id=3776. 24 Naxalism A Drag on Indias Quest for Great Power Status; Captain (now Commodore) Saboor Zaman, Pakistan Navy; October, 2012; http://www.defence.gov.au/adc/docs/Publications2012/06_SAP%20Final%20by%20Saboor.pdf.
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THE CRIMINAL LAW (AM ENDMENT) BILL, 2013 - A CRITICAL ANALYSIS

VAIBHAV DIXIT* SHREY SINGH We legislate first, and think afterwards; complexity is heaped upon complexity and confusion becomes worse confounded1 INTRODUCTION
C
S No.
hange in life style, living standards, disparity in economic growth due to urbanisation and changes in social ethos and lack of concern for moral values contribute to a violent approach and tendencies towards women, which has resulted in an increase in crime against women 2 but, as usual, our legislatures were least concerned when it comes to bring appropriate legislation for protection of women. Crime against women and their exploitation has multiplied many folds in the recent years because of the inefficiency in implementation of law. This is evident from the two tables(T.1.1. and T.1.2.) below:T. 1.1.: CRIME CLOCK OF ATROCITIES COMMITTED AGAINST WOMAN 3.
Offences and Crimes against Women
Rate of Crime
1.
Rape
29 Minutes
2.
Sexual Harassment
53 Minutes
3.
Molestation
15 Minutes
4th Year Student, Dr. RMLNLU, Lucknow, Uttar Pradesh 3rd Year Student, Dr. RMLNLU, Lucknow, Uttar Pradesh www.rostrumlegal.in/journal |
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4.
Cruelty by husband or other relatives
09 Minutes
5.
Dowry Deaths
77 Minutes
T.1.2. STATISTICS OF NATIONAL CRIME RECORDS BUREAU ON CRIME AGAINST WOMAN
S. No
Year
Crime cases against Women
1.
2005-2006
1,55,553
2.
2006-2007
1,64,765
3.
2007-2008
1,85,312
4.
2008-2009
1,95,856
5.
2009-2010
2,03,804
6.
2010-2011
2,28,650
The barbarous Rape Incident that occurred in Delhi4 was result of this attitude of our legislature. Further, the protest in the Delhi after the barbarous Rape Incident indicated the whole of India, the enormity as well as the seriousness for an immediate reform in Rape Laws. In the backdrop of this incident, the Central Government setup Justice Verma Committee headed by former CJI of India, J.S. Verma to make recommendation on the inefficiency of Rape Laws and other laws for Protection of Women in IPC because of great hue and cry by the Indians. Not only this, the President of India promulgated The Criminal Law (Amendment) Ordinance,2013 (hereinafter refer as Ordinance,2013), which amended several laws related to Protection of Woman, as an immediate measure to calm down the anger of the India. Since, the Ordinance,2013 was full of
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z anomalies, which where prima facie, as it was hurriedly enacted. The Cabinet headed by P. Chidambaram with his colleagues debated the Criminal Law Ordinance,2013 5 .On 19 March 2013, it was passed by Lok Sabha. On 21st March, it was a surprise for everyone that the law which touches the life and soul of every individual of this country was passed by Rajya Sabha in just one day discussion6. The Criminal Law Amendment Act,2013(hereinafter refer as Amendment Act,2013), for the first time, has created many new offences for protection of woman against acid attacks(Sec. 326A and 326B), sexual harassment (Sec. 345A),voyeurism (Sec. 345C) and stalking(Sec. 345D) and inter alia, enlarged the definition of rape(Sec. 375) in IPC. The paper aims at bringing to light the repercussion, both negative and positive, anomalies and efficiency of the Amendment Act,2013. OFFENCES AND AMENDMENTS
ACID ATTACK (SEC 326A)
Sec 326A has been added to the IPC as often the cases of throwing acid on faces of woman have surfaced. Beauty of face is a feature often primarily associated with females in chauvinistic male society. As such where a perpetrator wants to do damage to a female, he often prefers throwing acid on her face so as to destroy her beauty, regardless of any intentions. To curb such a horrifying menace, this crime has been added specifically in clear words under IPC with punishment of either description of not less than 10 years which could be upto life imprisonment along with fine.
SEXUAL HARASSMENT (SEC 354A)
Sexual harassment may be defined as sexual misconduct by dominant (i.e., superior officers etc.) irrespective of the subserviants knowledge or any loss or adverse effect for refusing a superiors unwelcome advance7. As early as 1993 at the International Labour Organization seminar held at Manila, it was recognized that a sexual harassment of women at workplace was a form of gender discrimination against women 8. In case of Vishaka v. State of Rajasthan9 , Supreme Court held that sexual harassment includes behaviour(whether directly or by implication) as: a) Physical contact and advances; b) A demand or request for sexual favours;
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z c) Sexually coloured remarks; etc. The Parliament enacted Sec. 354A in Amendment Act, 2013 giving effect to the above guidelines and by also not limiting offence at offices or workplaces but everywhere. In spite of such a brilliant legislative action, this section is not immune from anomalies as follows: i. Sec 354A (i) vis-a-vis Sec 354 The offences of under Ss. 354A (1) and 354 both require physical contact at the hands of the perpetrator. As such there is a lacuna when it comes to differentiating the types or forms of physical contact amounting to sexual harassment and outraging the modesty of woman. ii. Sec 354A (iv) vis-a-vis Sec 509 The offence of making sexually coloured remarks was already being dealt u/s. 509. Again the sub-clause Sec 354A(iv) imposes same degree of punishment as Sec 509. Thus the need to make this change and the intention of the legislature is very unclear.
DISROBING A WOMAN (SEC 354B)
Parliament made an amendment to IPC, adding Sec 354B, to create a new offence namely, Assault or use of criminal force to woman with intent to disrobe. The offence was made gender specific in backdrop of Delhi Bus Gang Rape10. Hailed by many legal scholars there is also a different story which remained unnoticed. The offence of disrobing should also be extended to men because unfortunately the young boy, who was with the girl and sole eye witness of the incident, was also assaulted and disrobed11 and as far as the victims are considered it should be made gender-neutral. The Sec. 355 has not sufficed in protecting male victims. The male accompanying the rape victim in the above mentioned event also suffered tortures and inhumane treatment at the hand of perpetrators.
VOYEURISM (SEC 354C)
Voyeurism has surfaced in recent times with the advent of internet and social media sites. The Parliament by enacting Amendment Bill, 2013 has made it punishable under Sec 354C of IPC. Indian Parliament made Voyeurism gender specific, meaning that only a male could commit such a crime against a woman. This is very injudicious as there are often cases where women are also involved in commission of offence. The character Simi Roy (played by the actress Amrita Singh, Bollywood, dir. Mohit Suri) in movie Kalyug, is an apt description of the offence in the society. Apart from this while dealing with offence of Voyeurism in Sec 354C, there is another anomaly related to its applicability. The section on voyeurism starts with Any Man, making it clear that
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z only man can be perpetrators, followed by the phrase by any other person at behest of the perpetrators raising series of doubts. The doubt as to whether the phrase by any other person should be read in the light of any man, meaning thereby that second person could only be a man, or in the light of Sec 11 which define Person. The court, most likely, would adopt the latter approach which will highlight another lacuna in Amendment Act, 2013. A woman as perpetrator will not be liable under this offence however a woman at the behest of actual perpetrator would be liable. This is approach is not only unjust but also unreasonable.
STALKING (SEC 354D)
Stalking is a term commonly used to refer to unwanted or obsessive attention by an individual or group toward another person. Section 354D of the Ordinance of 2013, was highly inspired from the definition of Stalking in Sec 2A of the Protection from Harassment Act, 1997 passed by British Parliament on 25th November 2012. The offence is punishable with imprisonment, along with fine, for a term which may extend to 3 years, on first conviction, and for a term which may extend to 5 years for subsequent conviction. As per the definition in Sec 354D the offence was gender-neutral offence, making the crime of stalking punishable for both the gender whether male or female. Surprisingly, the Amendment Act of 2013 changed Whosoever to Any Man making the offence of Stalking a gender-specific offence. In the present era, it is highly orthodox and immature to say that a victim of stalking could only be a woman and culprit a man, viceversa is also possible and has there have been instances worth reporting.12 Under the Act, the offence is limited to the physical act of following or contacting a person, provided that there has been a clear sign of disinterest, or to monitoring the use by a woman of the internet, email or any other forms of electronic communication.
RAPE IS REDEFINED AS SEXUAL ASSAULT
Rape is one of the most horrific events any women could experience. Justice Krishna Iyer in the case of Rafiq vs State Of U.P13 made a remark that, a murderer kills the body, but a rapist kills the soul. Taking a serious note of the inadequacy of the law of the rape manifested in a number of judgements, the Parliament from time to time has made an amendment with laws related to rape, including both procedural and substantive. The Parliament by means of Amendment Act, 2013 has enlarged the ambit of rape by making certain non-penetrative act as offence amounting to rape. The Amendment Act,2013 repealed the Ordinance(Amendment) Act,2013 which was having wider ambit, thereby raising serious questions regarding the lacunas or loopholes that the judiciary could confront in future. Earlier the offence of rape, i.e. sexual assault was a gender neutral offence, while now this offence is women centric. Only a man is assumed to be capable of committing such offence and that too against a woman only. The aspect of gender neutrality was required in following aspects:
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z i. Neutrality with respect to the victim
Often the members of the marginalised sex like Transgender are also victim of this offence and as such they cannot claim any protection because the crime of rape is not gender neutral 14. ii. Neutrality with respect to the perpetrator
During the war in Iraq it surfaced that many women officers also involved themselves in torturing the prisoners by variant sexual assaults15. This strengthened the assumption that even women can be perpetrator of such crimes. There are two occasions when the need for gender neutrality arises even in India. Firstly, when during some communal or casteist violence a women is found to be participus criminus. Secondly, when a transgender person is an offender. The recent case of Pinki Pramanik, where her partner filed a case of rape against her. This case shows the very real possibility of female to male transgender persons or male to female transgender persons (either pre- or post- transition) causing sexual assault on a woman16. iii. Rape of Married woman
The absence of law on marital rape (sexual assault), would also fail the objective of this bill as
married women cannot be protected. The law u/s. 376-A and exception u/s. 375 should be deleted equate marital rape and sexual assault. As the s. 3 of DVA17 is only applicable in grave life threatening scenario the need for consent of woman isnt important leaving her as an object of sex. The law u/s. 122 of the Indian Evidence Act prevents communication during marriage from being disclosed in court except when a spouse is being persecuted for an offence against the other. Since, marital rape is not an offence, the evidence is inadmissible, although relevant, unless it is a prosecution for battery, or some related physical or mental abuse under the provision of cruelty18.
COMPENSATION U/S 357 OF CR.PC
This section has been provided in Cr.P.C. , wherein the Court levies fine over the convicts, it can also grant certain portion of fine or full compensation to the victim. As far as the new law is concerned: a. State government to provide for compensation to the victim, besides the compensation being given by Court through fine against the convict.
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z b. The hospitals (government/private) shall provide immediate assistance to the victim in cases of rape, free of cost and inform the police about the offence. However we need to understand that this form of compensation is only limited to Gang Rape and Acid attack cases. The other rape cases have been neglected without any justified rationale at the mercy of the court to provide fine. Fine levied by the Courts is discretionary and as per latest judgement of Supreme Court, the right of victim is only limited to the extent that Courts may discuss the question of compensation to the victim in form of fine. If court is not satisfied to grant fine they have to give reasons in recording but in no way they are bound to give compensation from the Fines. DEATH PENALTY IN RAPE CASES After the Delhi Gang Rape Incident, there was hue and cry for including death penalty as a punishment in Sec 376 but inspite of this neither Justice Verma Committee recommended death penalty in offence of rape nor it was incorporated in the Ordinance Act,2013 and thereafter in Amendment Act,2013. The Parliament did not include death penalty under Sec 376 because the legislature were of the opinion that it should be awarded only in cases of rarest of rare laid down in case of Bachan Singh v. State Of Punjab19 when the alternative option is foreclosed. In the case of Mohinder Singh v. State of Punjab20, the Court did not punished the accused with death penalty, inspite his act being heinous in nature, because there was potential of convict to rehabilitate and reform. The Court further was of the opinion that the alternative punishment of life imprisonment would not meet the end of justice, therefore following the case of Swamy Shraddananda v. State Of Karnataka21, the court awarded him imprisonment till the last breath of life so that the ends of justice could be met. CRIMES AGAINST WOMAN: VIOLATION OF 21 & 19 There is a need for the more proper and reasonable laws to deal with the crimes against women. These crimes themselves violate the very basic fundamental rights guaranteed to a woman under the Constitution. These crimes hit at the very base of our Constitution, as India as State fails to guarantee these rights. Art. 21 talks about Right to Life and Liberty. It has been established by various case -laws from Habeas Corpus case22 to Maneka Gandhi case23 that liberty is very important feature towards life of an individual. Life does not mean a mere animal existence24 and as such this Article makes it obligatory for the State to provide a better and more secure society to our Women. A woman who is always under a threat for her life and physical body, then this law would become meaningless to her. Again the threats of the present society are violative of rights guaranteed
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z under Article 19(1)(f), which is free movement through the territory of the country. It would not be wrong to say that a woman is not safe even in walking on street in broad daylight, the very law enshrined under this article is made useless. The life of Indian woman in such a threatening society would be safer only in a cage to protect her from perpetrators, thus giving her an animal existence. We need to have stricter laws to ensure full liberty to women. CONCLUSION The major problem that is being witnessed by the society in the light of this law is that it is not water tight. Our leaders, like always, have failed to ensure the laws they enact are free from loopholes. The lack of gender neutrality in definition of Disrobing, Voyeurism, Rape etc, absence of law on marital rape, compensation for victims of rape, the age of consent and various other lacunas will create serious repercussions, realising this our political leaders Sushma Swaraj asked for tougher and efficient law in these kind of offences25.Not only this, other politicians like Shailendra Kumar and Sharad Yadav remarked that such laws can be misused against men26. Seeing such inadequacy SP chief Mulayam Singh Yadav vehemently opposed the anti-rape bill too27. Unfortunately, such inadequacy comes to light when an innocent dies in the hand of cruelty and then our legislature realizes that the time has come to make reformation in laws, the Mathura Rape Case28 and the death of Damini is prime example of such legislative stunts because of the laziness of our legislature, over the years, the common men has lost his faith in the present legal system. To do away with the problem our legislature need to have a comprehensive look at the law making process. Much has been already said on the present laws, its high time that legislature realises its responsibility. These are the people that have lost the power of astonishment at their own actions. When they give birth to a fantastic passion or foolish law, they do not start or stare at the monster they have brought forth... The nations is really in danger of going off their head en masse, of becoming one vast vision of imbecility29 G.K. Chesterton
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z
REFERENCES:
1
Sorabjee,Solo J. and Arvind P. Datar, NANI PALKIWALA, THE COURTROOM GENIUS (4th, LexisNexis Butterworth Wadhwa Nagpur, Gurgoan 2012) p.g. 27 2 Infra note 3. 3 K.D. Gaur, TEXTBOOK ON THE INDIAN PENAL CODE (4th, Universal Law Publishing Co. Pvt. Ltd, Delhi 2011) p.g. 637 4 SHUBOMOY SIKDAR, 'Gang-raped in moving bus, girl fights for life in Delhi hospital' (thehindu.com 2012) <http://www.thehindu.com/news/national/gangraped-in-moving-bus-girl-fights-for-life-in-delhihospital/article4208833.ece> accessed 20 may 2013 5 SMITA GUPTA, 'Cabinet divided on anti-rape draft law' (thehindu.com 2013) <http://www.thehindu.com/news/national/cabinet-divided-on-antirape-draft-law/article4500256.ece> accessed 15 May 2013 6 K.BALCHAND, 'Anti-rape Bill passed' (thehindu.com 2013) <http://www.thehindu.com/news/national/antirapebill-passed/article4534056.ece> accessed 20 may 2013 7 Burlington Industries v. Ellerth 524 U.S. 742 (1998); and Furgagher v. City of Boca Raton 524 U.S. 775 (1998). 8 Apparel Export promotion Council v. A.K. Chopra , AIR 1999 SC 625. 9 Vishaka v. State of Rajasthan, AIR 1997 SC 3011,para 16 10 Id note 5 11 ASHOK SHARMA, 'Delhi Gang-Rape Victim's Boyfriend Speaks Out' (huffingtonpost.com 2013) <http://www.huffingtonpost.com/2013/01/04/delhi-gang-rape-victim-boyfriend_n_2410207.html> accessed 20 may 2013 12 TNN, 'Much talking on stalking, but what does it all mean? ' (TimesofIndia.com 2013) <http://articles.timesofindia.indiatimes.com/2013-04-28/people/38862447_1_woman-criminal-law-offences> accessed 20 may 2013 13 Rafiq v. State Of U.P 1981 AIR 559 14 Upendra Baxi, 'Human Rights Violations against the Transgender Community' (Peoples Union for Civil Liberties, Karnataka (PUCL-K) 2003) <http://ai.eecs.umich.edu/people/conway/TS/PUCL/PUCL%20Report.html> accessed 25 may 2013 15 Seymour M. Hersh, 'Torture At Abu Gharib' (Newyorker.com 2004) <http://www.newyorker.com/archive/2004/05/10/040510fa_fact> accessed 25 may 2013 16 Arvind Narrain , 'The Criminal Law ( Amendment) Bill 2012: Sexual Assault as a Gender Neutral Offence' (Economic and Political Weekly 2012) <http://www.epw.in/web-exclusives/criminal-law-amendment-bill-2012sexual-assault-gender-neutral-offence.html> accessed 27 may 2013 17 Domestic Violence Act, 2005. 18 Priyanka Rath, 'Marital Rape and the Indian legal scenario' (India Law Journal ) <http://www.indialawjournal.com/volume2/issue_2/article_by_priyanka.html> accessed 20 May 2013 19 Bachan Singh vs State Of Punjab, AIR 1980 SC 898, 1980 CriLJ 636. 20 Mohinder Singh v. State Of Punjab,(1980) 2 SCC 684 21 Swamy Shraddananda v. State Of Karnataka, (2008) 13 SCC 767 22 ADM Jabalpur v. Shiv Kant Shukla, 1976 AIR 1207 23 Maneka Gandhi v. Union of India, 978 AIR 597 24 Munn v. Illinois, 94 U.S. 113 (1877) 25 PTI, 'Sushma seeks tougher law, death sentence in child rape cases' (thehindu.com 2013) <http://www.thehindu.com/news/national/sushma-seeks-tougher-law-death-sentence-in-child-rapecases/article4636764.ece> accessed 24 May 2013 26 PTI, 'Anti-rape Bill debate in Lok Sabha: Who among us have not followed girls? Sharad Yadav asks' (TimesofIndia.com 2013) <http://articles.timesofindia.indiatimes.com/2013-03-19/india/37842632_1_acid-attackstringent-punishment-bill-debate> accessed 24 May 2013 27 Supra note 27 28 Tuka Ram v. State Of Maharashtra, 1979 AIR 185, 1979 SCR (1) 810 29 Sorabjee,Solo J. and Arvind P. Datar, NANI PALKIWALA, THE COURTROOM GENIUS (4th, LexisNexis Butterworth Wadhwa Nagpur, Gurgoan 2012) p.g. 27,28.
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SEXUAL ABUSE OF CHILDREN AND THE CONSTITUTION OF INDIA

SOUMYA PRAKASH* INTRODUCTION hild Sexual Abuse is a everyday reality for about half of Indias children. Children are the greatest gift of humanity. The sexual abuse of children is one of the most heinous crimes 1 . They are tiny apostles of peace 2 . Children are the ultimate goal for development and the most important elements in society who can lead development3. But a child is susceptible to harms, taking advantage of marks of childhood, innocence and helplessness. Many a times they are tiny or are children between childhood and teenage. According to UNICEF report, one million children are drawn into commercial sexual exploitation every year in the world. 20% of worlds children live in India. Most of these children are girls below 15 years of age. On one side, the insatiable lust doesnt stop perpetrators from dragging boys too. The WHO estimates 150 million girls and 73 million boys to have experienced forced sexual intercourse or other forms of sexual violence. Child abusers are who belong to the lowest strata of the society, is the old philosophy. The new philosophy is that you find abusers next to you at home, irrespective of higher class, middle class or lower class, irrespective of the abuser being a man or women, irrespective of the victim being a new born4 or a child, girl or boy. The reasons why child abuses and abusers remain behind the curtain of law are in plethora. Either the victim is small enough to understand what had happened, or the abuser is close to the victim, the child takes it to be a way to shower love, or where the victim reports it to the parents, the parents ignores it owing to the childs age or doesnt believe the child, or the parents are reluctant to take the case to the police, the name of the family or the future of the child be affected 5, or the parents are threatened by the perpetrator or he is one among the family or the parent itself6.
CSA According to World Health Organisation, child sexual abuse is the involvement of a child in sexual activity that he or she does not fully comprehend, is unable to give informed consent to, or that violates the laws or social taboos of society. Child sexual abuse is evidenced by this activity between a child and an adult or another child who by age or development is in a relationship of
9th semester student of B.B.A.,LL.B. (Hons.), School of Legal Studies, Cochin University Of Science And Technology Kochi-682022. The author can be contacted through e-mail, pm.soumyaprakash@gmail.com
*
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z responsibility, trust or power, the activity being intended to gratify or satisfy the needs of the other person. Child Sexual Abuse is not exhaustive 7 . It takes in various forms of abuses-sexual assault, including rape and sodomy, fondling or touching a child, exhibitionism-forcing a child to exhibit his/her private body parts, photographing a child in nude, forcible kissing, exhibitionismexhibiting before a child, exposing a child to pornographic materials8. CONSTITUTION OF INDIA The Constitution of India guarantees several rights to children and enables the State to make provisions to ensure that the tender age of children is not abused. It is a malaise on a society that prides itself on the rule of law, democracy and the various freedoms enshrined in the Constitution. Article 15 of the Constitution of India, prohibits discrimination on the ground of religion, race, caste, sex and place of birth. But, clause (3) of Article 15 provides that nothing in this Article shall prevent the State from making any special provision for women and children. Prohibition contained in the Article shall not prevent the State from making any special provision for women and children. The provision is a social justice measure and specially enacted to protect the women and children and the brooding presence of Constitutional empathy for the weaker section like the women and children must inform interpretation if it has to have social relevance 9 . The fundamental right a child should get is the right to live under Article 21, including right to live a healthy life free from exploitation and abuses. Article 39(e) creates a duty to the State to ensure health and strength of children. The Constitution requires the State to provide for protection of tender age of children and their protection from abuses. Engagement of children in vocations, generally forced, which are unsuitable to their age or strength are areas where the State has the duty to take care of. So is Article 39(f) which mandates the State to ensure the children gets opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity. It includes the State to ensure facilities for the development of children and to protect the childhood and youth against exploitation as well as moral and material abandonment. THE UNITED NATIONS CONVENTION ON THE RIGHTS OF THE CHILD, 1989 Every child under 18 has these rights guaranteed under this Convention, without any discrimination. Children have the right to be protected from being hurt and mistreated, in body and mind. Article 34 gives the child the right to be free from sexual abuse. The innocence of the child is what the abusers take advantage of and CRC protects a child from such exploitation. The State parties are to undertake measures to prevent inducement or coercion of a child to engage in
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z any unlawful sexual activity, the exploitative use of children in prostitution or other unlawful sexual practice and the exploitative use of children in pornographic performances and materials. CASES AND NEWS REPORTS In Mathuras case10, a girl between 14 and 16 years was raped by two policemen. The Sessions Court held Mathura to be a shocking liar whose testimony is riddled with falsehood and improbabilities and that of her free-will had surrendered her body to a police constable. The Medical Report showed old injuries on the hymen and no semen stains were traced. The High Court convicted while the Supreme Court acquitted the accused, on the ground that sexual intercourse is not proved to amount rape. In the contrary to the judgment in Mathura case, the Mumbai High Court held that seminal emission is not necessary to establish rape. What is necessary to establish is that there is penetration. A 2007 incident. 16 year old girl in New Delhi had repeatedly complained that the her mathematics teacher was touching and fondling her private parts. When the girls parents complained the Principal called them regressive and blamed them for damaging the reputation of the school. The girl now stays at home to help cook and clean. But, in an almost similar incident in Orissa, the teacher was booked and the term of imprisonment was enhanced as the perpetrator of the offence had taken advantage of the teacher-student relationship he shared with the victim11. On 19th of November, 2008 the bulletins shook the news rooms with the news of orphanages in Mahabalipuram turning to hotbeds of child sexual abuse, especially private orphanages. Tourist guides offer orphanages as part of itinerary for foreign tourists. The running of orphanages and children homes are matters of public interest and if in the working an evil is suspected to exist, it must be exposed, so that it may be rooted out. Three were arrested on charges of incest, being the latest in a series of domestic brutality meted out to hapless wards by those meant to protect them. A 42 year-old man was arrested for abusing his 12 year-old handicapped daughter at gun point. In another case, a 35 year-old was arrested for sexually exploiting his 10 year-old daughter. The police said the accused had been sexually exploiting the girl for the past 2 years.
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z A 4 year old girl was raped in Madhya Pradesh by a youth in a jungle near Veeranpur village. The accused took the girl in to a nearby jungle and raped her. The girl after her return informed about the incident to her mother who lodged a complaint with the police. An 18 year old was gang raped in Patiala, by three youths on Diwali night and she committed suicide. A minor girl was allegedly gang-raped by four youth on visit to her sisters house. The victim somehow reached her house and narrated the incident to her parents who rushed to the nearby paddy fields in search of the youth. The perpetrators tied the hands of girl and put her scarf in her mouth and lifted her to the paddy fields where she was raped by all the four. The villagers caught the four accused who were about to leave the village, knowing the girl had informed her parents of this incident. Amidst the uproar over the Delhi rape incident, a minor girl was raped, filmed and later MMS clip was uploaded on the internet in a village in Chhattisgarh. The Police charged seven youth under the provisions of Indian Penal Code for rape and Information Technology Act, 2001 for circulating the MMS clip on mobile and also uploading it on the internet. In Anchorage Case12, a shelter home set up in Colaba, Mumbai by two Britons Allan Waters and Duncan Grant who had sexually abused children for years. A victim whose testimony, which was crucial for this case was 14-15 year old and revealed that he was made to perform oral sex on the two of them. Another victim also gave a similar testimony. A police complaint was filed in 2001. The Bombay High Court passed directions to protect the boys at Anchorage shelter. The investigation also brought in proof of children in the shelter home being taken to Goa by foreigners who visit them for sexual activities. The Mumbai Sessions Court sentenced the accused to six years in prison on the charge of sodomy and sexually abusing five minor boys. The accused challenged the trial Court verdict in an appeal in the High Court, which acquitted the accused13. But, the apex Court rejected the arguments of the accused and sentenced them to finish their time in jail. THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 Even though India is a signatory to a host of International Covenants and Instruments focusing on Child Protection, the existing legal mechanisms have not been able to provide the necessary Child Protection systems which could prevent child abuse. The new legislation comprehensively deals with all manner of sexual offences, the reporting mechanism and subsequent penal consequences.
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A child is any person below 18 years of age. The Act defines penetrative sexual assault as where the perpetrator penetrates his penis to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person or if he inserts any other foreign object or any part of the body or manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or applies mouth to the penis, vagina, anus, urethra of the child or, makes the child to do so to such person or any other person. Another classification is aggravated penetrative sexual assault, where the perpetrator is a police officer14, or a member of the armed forces or security forces 15or where he is a public servant, or a manager or on the staff of any home under the control of the Government which takes custody of child, or in the staff of any hospital or whoever is on the staff of any educational institution. Aggravated sexual assault also takes into it gang penetrative sexual assault, penetrative sexual assault on a child using deadly weapon, fire heated substance or corrosive substance, causing grievous hurt or causing bodily harm and injury or injury to the sexual organs of the child or that which incapacitates the child or where the child becomes mentally ill or any impairment of any kind so as to perform regular tasks, temporarily or permanently 16 . Classification again is made for sexual assault and aggravated sexual assault in lines of penetrative sexual assault and aggravated sexual assault. Sexual harassment is given a wider connotation. Thanks to legislators as this is often the way child is abused. A person who utters a word or makes any sound or gesture or exhibits any part of his body or any object, makes a child exhibit his body, to be seen by that person or any other person, shows any object to a child in the form of any media, constantly follows, reaches or contacts a child through any means, threatens to use in any form of media to exhibit any part of the child or the involvement of a child in a sexual act, or entices a child for pornographic purposes or gives gratification shall be punished for sexual harassment of a child. Apart from a sub section under sexual harassment for use of a child for pornographic purposes, the legislation hosts a distinct provision exclusively for use of child for pornographic purposes17. It provides that whoever uses a child in any form of media, including programme or advertisement telecast by television channels or internet or any other electronic from or printed form, whether or not such programme or advertisement is intended for personal use or for distribution, for the purpose of sexual gratification, shall be guilty of the offence of using a child for pornographic purposes. The Act punishes abetment of and attempt to commit an offence under this Act. Abetment under the Act takes three forms. First, instigating any other to an offence, second, engaging in conspiracy with one or more other persons and thirdly, intentionally aiding others to commit the offence18.
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PROCEDURE IN REPORTING OFFENCE The Act mandates any person, including a child, who has knowledge of an offence been committed to inform the Special Juvenile Police Unit or the local police 19. Any such information received is required to be recorded in writing with an entry number. Such writing is required to be read over to the informant and entered in a book to be kept by the Police Unit. The legislative mandate requiring media, studio, hotel, lodge, club or photographic facilities to report to the Special Juvenile Police Unit or to the local police, any information or materials they come across which is sexually exploitative of the child20 is note worthy. The legislation takes extra care to protect victims from the over activism of media under s.23 of the Act. Media are strictly prohibited from reporting without authentic information on any news involving a child, if that would tarnish reputation or infringes privacy of the child. Media is not disclose the identity of the child unless with the permission from the Special Court competent to try such cases. The duty to ensure non disclosure of the childs identity vests with police. Statements from a child shall be recorded at his residence by police officers not being in uniform ensuring the child doesnt come in contact with any of the accused. The Act holds provision for a Magistrate or Police to record such statement by audio-video electronic means. Additionally, the statement shall be recorded by police or Magistrate as spoken by the child in the presence of his parents or by any other in whom such child ahs trust and confidence. Special care has to be taken in recording statements of child with disability. The child shall not be detained in the police station in the night for any reasons. Child victim of sexual abuse shall be medically examined in the presence of a parent or any person in whom the child has trust and confidence, by a women doctor, if victim is a girl and such examination shall be conducted as under s. 164A of CrPC, 1973. Act imposes punishment on persons or organizations for failure to report a case. This includes NGOs. The provision disregards the appreciable work by NGOs and social workers those help families settle issue by different methods by not leaving room for celebrating these cases in public. CONCLUSION Child abuse is shrouded in secrecy and there is a conspiracy of silence around the entire subject. In fact there is a well entrenched belief that there is no child abuse in India and certainly there is not sexual abuse in the country. Further, certain kinds of traditional practices that are accepted across the country, knowingly or unknowingly amount to child abuse. Existing socio-economic
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z conditions also render some children vulnerable and more at risk to abuse, exploitation and neglect21. The symptoms of sexual abuse of children are many22. The insatiable lust of human beings has to be brought under control at any cost. Child abuse remains a shadow to the future development of a child. Children who require extra care and protection are those who are orphans, those in the streets, jails, children of prostitutes and the child yet to be born. It is a point of pain that the older criminal statues had not recognized the protection of child and a child had been neglected and so his rights. Thought, is calls for celebration in having a separate legislation for protection of children from sexual abuses, the legislation is yet to recognize showing pornographic pictures to children as a form of sexual harassment. All stands good in the setting up Special Courts and child friendly trials but, stands yet to prove. The Act ought to have been made sufficient enough to try a child offender. At the same time, in case of child offender, the orders passed by the Special Courts shall not be invalidated if the age determined of such offender was incorrect. The Act holds separate provision for monitoring the implementation and vests the duty with the National and State Commissions for Protection of Child Rights. The Act falls short to deal with sexual abuse by kidnapping and abducting for which the IPC is still relied upon. Amendments are inevitable to this legislation too.
REFERENCES:
1 2
Childline India Foundation & Anr v. Allan John Waters & Anr, 2011 CriLJ 2305 Shriniwas Gupta, Sexual Violence on Children: A Sociolegal Assessment, Central India Law Quar terly, vol.IX:IV, pg.428, 3 M. Veerasamy v.State of Tamil Nadu, 2012 (3) CTC 641, Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469 4 Siddik Singh v. State of Maharashtra, 1993 CrLJ 2919 (Bom), the accused a Army Officer kidnapped and raped a 4 month child and she died, T.K.Gopal v. State of Karnataka, AIR 2000 SC 1669 5 State of Punjab v. Gurmit Singh, AIR 1996 1393 6 Crimes in which women are victims need to be severely dealt with and in extreme cases such as this when the accused, who is the father of the victim girl, has thought it fit to deflower his own daughter of tender years to gratify his lust, then only a deterrent sentence can meet the ends of justice., Gorakh Daji Ghadge v. The State of Maharashtra, 1980 CRLJ 1380 7 State of Rajasthan v. Om Prakash, AIR 2002 SC 2235 8 Study on Child Abuse: India 2007, Ministry of Women and Child Development, Government of India, 2007 9 Ramesh Chander v. Veena Kausal, AIR 1978 SC 1807 10 Tukaram & Another v. The State of Maharashtra, 1979 2 SCC 143 11 Ghanshyam Mishra v. The State, AIR 1957 Orissa 78 12 Childline India Foundation and Anr. V. Allan John Water and Ors., 2011 CriLJ 2305 13 In their judgment, MANU/MH/0636/2008, the Honble Judges of the High Court of Maharashtra stated: The testimony of the two boys, Sunil and Kranti, which was the basis for the Trial Courts judgment cannot be considered reliable as their testimonies recorded by Police subsequent to the FIR was not consistent with what they recorded with Meher Pestonjee, freelance journalist and Maharukh Adenwala prior to the FIR being lodged; The testimony of Mahrukh Adenwala was construed as hearsay and hence not relevant; The acts that the boys testimony reported were ruled to not indicate a definitive crime under section 377; The States appeal for enhancement was dismissed as the testimony of the victims was not reliable.
14
Section 5(a), Whoever, being a police officer, commits penetrative sexual assault on a child (i) within the limits of the police station or premises at which he is appointed; or (ii) in the premises of any station house, whether or not situated in the police station, to which he is appointed; or
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(iii) in the course of his duties or otherwise; or (iv) where he is known as, or identified as, a police office 15 Section 5(b), Whoever being a member of the armed forces or security forces commits penetrative sexual assault on a child (i) within the limits of the area to which the person is deployed; or (ii) in any areas under the command of the forces or armed forces; or (iii) in the course of his duties or otherwise; or (iv) where the said person is known or identified as a member of the security or armed forces 16 Section 5(g)-(j), The Protection Of Children From Sexual Offences Act, 2012. The section further goes into making a female child pregnant, inflicting HIV, taking advantage of the childs mental or physical disability and commits the offence, committing penetrative sexual assault repeatedly, committing the offence on a child below 12 years, any relative being the perpetrator, either by blood or adoption, attempts to murder the child after committing the offence. Section 6 confirms the punishment, which shall be not less than 10 years, which may extend to imprisonment for life and also fine. 17 Section 13, POCSO Act, 2012 18 Section 16, POCSO Act, 2012 19 Section 19, POCSO Act, 2012 20 Section 20, POCSO Act, 2012 21 Study on Child Abuse, Ministry of Women & Child Development, Government of India, 2007 22 Pinki Virani, Bitter Chocolate, 2000 (Penguine Books) The immedia te signs of sexual abuse can be: Bed-wetting, continuous loose motion, hysterical reactions, temper or aggressive behavior, depression, anxiety, withdrawal, deep sense of isolation, avoiding certain adults, not concentrating in school, attempt to physically hurt self, constant rubbing of body parts against objects, use of sexual words, focused on its own genitals, constant throat and urinary infections, irritation in the genital areas, masturbation and the signs can be many.
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FOOD AND SECURITY: THE TWO ASPECTS OF MID-DAY MEALS

TEJASWINI RANJAN* WHAT IS FOOD?
uman civilization emerged from food. Man became civilized due to food. The need for food provided a platform for other inventions and developments of human life. Food determines a culture and a description for a group, a community and a society. Food is also a justification between general and specific entitlements. It is the existence of food which has survived other necessities of life. It also plays a very important role in ethical decision making. And, moreover, food has been accepted by all. Food is a mode of attaining nutrition too; but in the genuine sense it imparts life, senses and new developments in the most eternal manner. Also the concepts like food sovereignty have come into being. Food is a very important aspect of human life. It determines our character, our behaviour and most importantly, our occupation. We live for food and are living for food only. Food is the treasure which we always try to keep secure; sometimes in actual or, sometimes in anticipatory mode. Interestingly, food is the only object which has taken the most diverse forms. Food is not only science; it is also a social science, too. Various judgments of human thinking are linked with food resting in our stomachs. In the words of science, food makes your body work, grow and repair it. The kind of food one eats affects the efficiency of ones body processes. We are able to perform all our mental and physical tasks well all due to food intake. Food ensures the various essential elements like minerals, vitamins, proteins in the body. Body function and the food that sustains it is infinitely complex. Food is in fact one of the most complicated sets of chemicals imaginable. Food is inevitable; food is life. Food is the right of all and everybody should be ensured food. Food is the confidence and the source of power which is in reality responsible for the continuity of human race. LEGAL ACCESS TO FOOD: A BASIC HUMAN RIGHT The right to food is an inclusive right. It is not simply a right to a minimum ration of calories, proteins and other specific nutrients. It is a right to all nutritional elements that a person needs to live a healthy and active life, and to the means to access them.1
The author is pursuing 5 year B.A.LLB course at Chanakya National Law University, Patna www.rostrumlegal.in/journal |
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z Human rights are rights inherent to all human beings, whatever our nationality, place of residence, sex, national or ethnic origin, colour, religion, language, or any other status. We are all equally entitled to our human rights without discrimination. These rights are all interrelated, interdependent and indivisible.2 By analogy, the right to have access to food is a right inherent to all human beings irrespective of nationality, place of residence, sex, national or ethnic origin, colour, religion or, language; hence, right to food is a human right. Moreover, we are entitled to it without any further division and differentiation. Also, the right to food is a human right recognized under international law which protects the right of all human beings to feed themselves in dignity, either by producing their food or by purchasing it.3 The idea of the human right to food is to establish procedural and legal means for seeking remedies against authorities when they fail to guarantee access to food.4 Several National and International enactments which guarantee or propose to guarantee the Right to Food are: Article 25 of the Universal Declaration of Human Rights (1949) states that Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food5 Article 11 of the International Covenant on Economic, Social and Cultural Rights (1966), The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food,6 General Comment 12 of the Committee on Economic, Social and Cultural Rights, which reads as Availability refers to the possibilities either for feeding oneself directly from productive land or other natural resources, or for well-functioning distribution, processing and market systems that can move food from the site of production to where it is needed in accordance with demand7 further elaborates the responsibilities of all State Parties to recognize the right of everyone to be free from hunger;8 Article 5 of the Convention on the Rights of Persons with Disabilities considers the importance of health and accessibility of food to those who fail to make their ends meet due to disability; Article 21 of the Constitution of India which states talks about Protection of life and personal liberty states that No person shall be deprived of his life or personal liberty except according to procedure established by law guarantees a fundamental right to life and personal liberty, which necessarily includes the right to life with dignity9; Article 39 (a) of the Constitution of India obliges the State to direct its policy towards ensuring that the citizens, men and women, equally, have the right to an adequate means of livelihood10;
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z Article 42 of the Constitution of India provides that the State shall make provision for securing just and humane conditions of work and for maternity relief; this further obliges that State to take care of the needs of its citizens with relation to food.11 Article 47 of the Constitution of India discloses the duty of the State to raise the level of nutrition and the standard of living and to improve public health. It reads as, 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 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.12 Evidently, the purpose of this depiction has never been followed ideally. Negligence has always been there at the part of the authorities. A very good example of which is the recent case of Mid-day meal in Bihar. The negligence in the part of the authorities has resulted in numerous deaths of children who used to feed on this scheme. The scheme which was ideally expected to attract economically weak and malnourished children to school but finally, ended up taking their lives. MID-DAY MEAL AND ITS IDEOLOGY The Mid Day Meal is the worlds largest school feeding programme reaching out to about 12 crore children in over 12.65 lakh schools/EGS centers across the country. 13 In 1925, a Mid-Day Meal Programme was introduced for disadvantaged children in Madras Municipal Corporation. By the mid-1980s, three States viz. Gujarat, Kerala and Tamil Nadu and the UT of Pondicherry had universalized a cooked Mid-Day Meal Programme with their own resources for children studying at the primary stage By 1990-91 the number of States implementing the mid-day meal programme with their own resources on a universal or a large scale had increased to twelve states.14 On 28 November 2001, the Supreme Court of India passed an order directing all state governments to introduce cooked mid-day meals in primary schools. 15 Taking initiative with reference to this order, several states of the Union have provided for mid-day meals at different levels of education, covering a large population of children. Along with this, several NGOs and different other organizations also provide for aiding this scheme, throughout the nation. The aim of the Mid-day meal programmes is to improve the nutritional status of poor children. The latent aim is also to attract them to schools. Along with this, this programme also aids in the eradication of child labour in the way that children who previously used to invest their energy in labour now procure energy at school. This makes the Mid-day meal programme a very important scheme in building India.
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z According to the Research findings (2010) of Pratichi trust of Prof. Amartya Kumar Sen, implementation of MDM has been a success throughout the country. They have also proposed that the quality of food needs to be improved. The report by PROBE (Public Report on Basic Education) indicated that 84% of households reported that the children get cooked mid-day meal in schools and children enjoy varied menu. Good practices like washing hands before eating, & after eating are imparted in the schools.16 The National Institute of Public Cooperation & Child Development, Indore has reported that MDM has shown marked improvement in enrollment pattern of children in primary schools. As depicted in reports, the scheme helped reduce the burden on poor families relating to food and education with respect to girl child especially.17 According to the reports of Annual Status of Education Report (ASER) 2010 reported in 83.4% schools served MDM on a day of visit and almost same percent of schools (81.3%) schools were having kitchen sheds for cooking mid-day meal.18 The purpose behind the Mid-Day Meal Scheme was to enhance enrolment, retention, and participation of children in primary schools, simultaneously improving their nutritional status. 19 In order to ensure the fulfillment of this purpose there is also a mechanism to maintain the transparency in the system. The quantity and quality of food-grains are specified and there is also a body to keep a proper check in the proceedings. This program has also been helpful in creating employment among women of the unprivileged classes. The ideology of this programme has also been an initiation for the better supply of education to the unprivileged children and also has been an executed weapon for promoting gender equality. This scheme has also helped in improving attendance of children to schools and also, has played a very important role in imparting education and nutrition to the economically and at times, the socially backward class, too. This makes Mid-day Meal Scheme a welfare scheme. MID-DAY MEAL A DISASTER Many lives could have been saved had the Chhapra Sadar Hospital been stocked with the antidote for organophosphorus, a chemical used as insecticide that laced the meal offered to children at primary school in Saran.20 The Mid-day Meal Scheme in Bihar was started way back in 1995. 21 As listed in the Dopahar yojana or, Mid-day Meal Scheme of the Bihar Government, the main objectives of this endeavour are:-
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z i. To provide hot cooked Mid-day Meal to each and every child attending Government/Government added Schools, EGS and AIE centers, NCLP including Maqtabs and Madarsas. ii. To enhance enrolment retention, attendance of the students and simultaneously to improve nutritional level amongst children. iii. To protect children from class room hunger. iv. To motivate children belonging to disadvantaged sections to attend school on more regular basis and help them to concentrate on school and class room activities. v. To improve socialization among the castes and to enhance gender equity.22 But, in reality this seemed to fail when the killing due to food distributed in this scheme occurred in the Chhapra district of Bihar. According to the report by Dainik Jagran newspaper, the children were never served good food and the premises where the food was consumed were usually dirty. Pulses were not cooked property and vegetables where cooked in unhygienic conditions. The children are also forced by the teachers to feed on that food.23 As per the report published in The Telegraph, mostly, rice is allotted from FCI to state food corporation. From there, it is routed to block education officer, who distributes it to schools or NGOs. FCI puts the foodgrain in a red coloured bag and stamps MDM on it. Transport Contractors take out several kilograms of foodgrain from the bag, which is not weighed after reaching schools.24 Vegetables are bought by schools from open market and, so is oil; and there is no specific criteria for quality check but Vidyalaya Shiksha Samiti, a school committee is supposed to keep a watch. The menu lacks green vegetables and on most days of the week, khichdi is served for meal. A Pucca kitchen shed-cum store is ideally supposed to be constructed and along with this, regular Monitoring by district MDM cell is also proposed under the terms of this project. But, majority lack this facility. 25 The quality of rice and wheat from the FCI is not up to standard, and alien materials in the bags contaminate food grain.26 The vegetables and the oil are also substandard. Cross cutting is done and the administrators of the programme fill up their pockets with the same. The appointment of the cooking staff is also through a corrupt mechanism.
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z Use of firewood is common and food is mostly cooked in the open in the absence of kitchens. Food is to be tasted but is not in reality. It is a sad tale of over 20 children losing their lives and another two dozen or so falling sick after eating their free lunch at a primary school in Bihar.27 Evidently, whenever any issue highlights big exposures, the media makes it a point to make disclosures on each and every chunk of the issue. According to media reports, the director of the midday meal scheme of Bihar government returned Rs 462.78 crore to the Centre, unable to spend it. The money was allotted between 2006-'07 and 2009-'10, and probably lay idle in banks till early 2012.28 This is astonishing in itself. On one hand, the state fails to serve its children better due to lack of services and resources; on the other hand, it submits the money back stating that its surplus. And sadly, the human resource which is stately scarce is the Human Resource. Its the human resource which fails to prove its authenticity as well flops in carrying out its responsibilities. Now, many folds and dimensions of Mid-day meal working pathetically in different other states is also coming into picture. Similar reports regarding the scheme failure in other districts of Bihar, along with the neighbouring states like Odisha and Uttar Pradesh have been highlighted in the media within a week; many more are to come. Looking upon the whole case, it is supposed to be noted that the whole massacre occurred due to acts of negligence, resulting in gross injuries and damages to the lives of innocent children. A well-known proverb states that Prevention is better than Cure. Since, here there is no scope left for cure, what we are only left with is prevention. Taking a lesson from the tragedy, the Bihar has taken a step to issue stringent instructions such as, in addition to the present provision of quality check of food under midday meal scheme by the cook and a school teacher, the government is planning to include one parent on rotational basis to ensure hygiene of the food. Maintenance of a register is also proposed along with improvement in infrastructural facilities for better implementation of the programme.29 Hopefully, the guidelines will be followed strictly and the system will be strengthened; marking a positive growth in the society. FOOD: A HOPE On one side where food has become a weapon of mass destruction on the other side, it has entered as a ray of hope in the room of politics. Recently, the National Food Security Bill 2013 was recently passed as an ordinance by the Union Cabinet which aims to provide 5 Kg of food grains per person per month at subsidized prices from State Governments under the targeted public distribution system.30 This has been termed as a political move by most of the critics.
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z Talking about Tamil Nadu, here J. Jayalalithaa is trying to win the hearts of her voters by means of their stomach. In February, her government launched Amma Unavagam, or Amma eatery, a chain of 200 food joints set up by the Corporation of Chennai, which offers quality food at affordable prices.31 It is to be noted that it is again a type of mid-day-meal which is in phase. The people are enjoying the benefits because cheaper commodities have the highest bidders and also, this system doesnt discriminate the creamy layer and the non-creamy layer. Everyone can avail the service and everybody is availing too. Though the economics calculations fail here since, the canteens involved are losing Rs. 5 lakhs a day; but the positive point is that in India politics is being governed by food this time. The best part being, food offered to public at cheaper rates in a market where prices are taking a merry go-round height. All these take us to an inference that food is guiding the political journey in India. Securing food is becoming a means of securing vote. Hence, food has also modified the political set up. Along with this, not to forget, food has attracted various scams and controversies and has laden the FCI with all required fame. THE QUERY As taught in earlier times, food, clothing and shelter are the basic amenities of life. The modern world added education, electricity, dignity and so many other things to it. But, undoubtedly food stands first among all. It is almost impossible to remove the charm which food possesses. A news flash always reflects a rotting food storage; on the other hand, scarcity of food. The thing which is to be kept in mind is that whenever any project is implemented, it should maintain quality. Corruption and negligence have eaten away crores from this nation; they should be but behind bars and should be awarded capital punishment. The incident at Bihar has killed human resource in the face of children. We need to save the rest, i.e., we need to save and sustain food. Critics firmly state the availability of food in quantitative terms; though not in quality. Even then why do we face food scarcity? Has corruption eaten our food completely? Is corruption cooking the food consuming which the children died? The human civilization which developed from food is now incapable of managing food for its generations. We face challenges like adulterated food materials and epic rises in food prices. Dont we need to keep a security over this? If God is someone who endows you with life and also a healthy life; then food indeed is God. We ought to worship this God; by not wasting food, by keeping food healthy and secure for one and all.
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REFERENCES: 1. The Right to Adequate Food, p.2, available at http://www.ohchr.org/Documents/Publications/FactSheet34en.pdf , (accessed on July 18th, 2013, 11 pm) 2. What are human rights? , available at http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (accessed on July 18th, 2013, 10:12 pm) 3. Olivier De Schutter, The Right to Food, available at http://www.srfood.org/index.php/en/right-to-food , (accessed on July 18th, 2013, 11 pm) 4. The Right to Adequate Food, Module 12, available at http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module12.htm , (accessed on July 18th, 2013, 9:30 pm) 5. Article 25, Universal Declaration of Human Rights (1949) , 6. Article 11, International Covenant on Economic, Social and Cultural Rights (1966) 7. General Comment 12 of the Committee on Economic, Social and Cultural Rights 8. Food Security Bill, 2011, 9. Article 21, The Constitution of India. 10. Food Security Bill,2011 11. Article 42, The Constitution of India 12. Article 47, The Constitution of India 13. About the Mid-Day Meal Scheme, available at http://mdm.nic.in/ , (accessed on July 19th, 2013, 8:17 pm) 14. About the Mid-Day Meal Scheme, available at http://mdm.nic.in/, (accessed on July 19th, 2013, 9:10 pm) 15. MID-DAY MEALS IN PRIMARY SCHOOLS, available at http://www.righttofoodindia.org/data/wsfmdm.pdf , January 2004, p.3, (accessed on July 19th, 2013, 1:56 pm) 16. Research Findings In Mid-day Meals, p.1, available at http://mdm.nic.in/Files/OrderCirculars/Findings_of_Research_studies.pdf , (accessed on July 20th, 2013, 8 pm) 17. Research Findings In Mid-day Meals, p.1, available at http://mdm.nic.in/Files/OrderCirculars/Findings_of_Research_studies.pdf , (accessed on July 20th, 2013, 8:14 pm) 18. Research Findings In Mid-day Meals, p.1, available at http://mdm.nic.in/Files/OrderCirculars/Findings_of_Research_studies.pdf , (accessed on July 20th, 2013, 7:54 pm) 19. Shambhu Ghatak, Performance of the Mid-Day Meal Scheme, available at http://zunia.org/sites/default/files/media/node-files/mi/164576_Mid_Day_Meal_Scheme1.pdf , (accessed on July 19th, 2013, 11 pm) 20. Joy Sengupta and Shuchismita Chakraborty, System Failure at Every Step, The Telegraph, (Patna), July 18th, 2013, at p. 1 21. Mid-day meal plan - An Introduction, available at http://www.dopahar.org/dopahar/ , (accessed on July 20th, 2013, 9:20 pm) 22. Mid-day meal plan - An Introduction, available at http://www.dopahar.org/dopahar/ , (accessed on July 19th, 2013, 7:20 pm) 23. Raju singh, Bach Sakti thi Bacchhon ki Jaan, Dainik Jagran, (Patna), July 20th,2013, at p.1 24. Joy Sengupta and Shuchismita Chakraborty, System Failure at Every Step, The Telegraph, (Patna), July 18th, 2013, at p. 1 25. Joy Sengupta and Shuchismita Chakraborty, System Failure at Every Step, The Telegraph, (Patna), July 18th, 2013, at p. 1 26. TV Mohandas Pai, Bihar school deaths: Why the government makes a meal out of the mid-day meal scheme, available at http://economictimes.indiatimes.com/opinion/comments-analysis/bihar-school-deathswhy-the-government-makes-a-meal-out-of-the-mid-day-meal-scheme/articleshow/21174693.cms , (accessed on July 20th, 6:21 pm) 27. Negligence leads to Bihar mid-day meal tragedy, July 18th, 2013, available at http://www.thehindu.com/news/national/other-states/negligence-leads-to-bihar-midday-mealtragedy/article4924497.ece , (accessed on July 20th, 6:32 pm) 28. Josy Joseph, Bihar returned Rs. 463 crore midday meal funds to Centre, The Times of India, available at http://timesofindia.indiatimes.com/india/Bihar-returned-Rs-463-crore-midday-meal-funds-toCentre/articleshow/21174741.cms , (accessed on July 20th, 6:11 pm)
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29. Midday meal tragedy: Bihar to issue stringent instructions, available at http://www.thehindu.com/news/national/midday-meal-tragedy-bihar-to-issue-stringentinstructions/article4927726.ece , (accessed on July 20th, 2013, 6:53 pm) 30. Dhanraj Bhagat, What Food Security Bill means for India's subsidy burden, available at http://www.moneycontrol.com/news/economy/what-food-security-bill-means-for-indias-subsidyburden_921785.html , (accessed on July 20th, 9:32 pm) 31. Lakshmi Subramansian, Hunger Games, The Week, p.28, July 14th, 2013
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BOOK REVIEW
ECONOMIC INTEGRATION IN SOUTH ASIA: CHARTING A LEGAL ROADMAP

MD. RIZWANUL ISLAM MARTINUS NIJHOFF 2012, PAGES XXX + 334 PRICE $ 171
MOHAMMAD RUBAIYAT RAHMAN*
ince its beginning in 1985, the SAARC has been extending its scope of operations to cover newer areas of common interest and activities.1 Although at the outset the SAARC focused primarily on technical cooperation with the aim of creating a common ground and a shared agenda, its focus areas have been undergoing calibrated shifts to adjust to new tunes of global and regional realities. During the late nineties of the 20th century, the winds of change became visible in global economies which caused an impetus for the shift of focus in SAARC activities.2 Thus, evident manifestation of the new awakening can be seen in the formulation and implementation of SAPTA and later SAFTA Agreements which were reiterated as the vital key to unveiling the economic potential of the region.3 Author Md Rizwanul Islam in Economic Integration in South Asia: Charting a Legal Road Map analyses the state of intra-SAARC trade cooperation from its inception and examines what underlying socio-political factors may have prompted the emergence of the SAARC as in institution and conclusion of PTAs under its auspices. The book explores how broader subregional economic integration can propel economic development in South Asia. The author, who has reputation of publishing analytical write ups on international trade law, focuses on South Asian PTAs, in the view of the inter-connected nature of the global economy, its analysis is juxtaposed with the global trade regime and also makes an endeavor to what extent the South Asian PTAs would comply the rules of the WTO. The book is arrayed in 7 chapters and 2 annexes conceiving documents of Agreement on South Asian Free Trade Area (SAFTA) and SAARC Agreement on Trade in Services (SATIS). Chapter 1, as an introductory part, examines the development of the SAARC's trade induced economic cooperation. No in depth legal study on any regionalism can probably purport to be a complete one without conducting an analysis on the consistency or otherwise of any Preferential Trade Area (PTA) concluded within its framework with the rules of the WTO. The introductory
Student, LLM, South Asian University, New Delhi, India www.rostrumlegal.in/journal |
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z chapter contends the reasoning that it would examine the rules of the GATT/WTO governing the formation of PTA and suggests any possible reforms that may be made. Chapter 2 makes some recommendations for ensuring better compliance of PTAs with the rules of the WTO and preserving WTO's authority as the pinnacle body regulating inter-state trade. Chapter 2 recommends a few legislative reforms with a view to suggesting a number of ways of improving the WTO laws governing PTAs. The existing WTO rules do not allow its member states to form PTAs covering goods with non-member states. The author opines in the concluding part of chapter 2 that the acceptance of PTAs with non-member states of WTO can potentially increase the openness in those economies that are not currently members of the WTO. Chapter 3 delves into different motives that persuade countries to negotiate PTAs. It critically analyses the global economic welfare implications of PTAs and their impacts on the multilateral forum at the WTO. As a fitting sequel of the analysis, author also examines how PTAs fit in the WTO's multilateral path. Author aptly points out that the challenge of multilateral trading system is not how to restrain the execution of PTAs, but how to minimize the welfare withering aspects of PTAs. The solution of the challenge is to be more and more progress in the negotiations at the WTO that would forward it to be freer and much extensive regime and at the same time can drag out PTAs from assuming a functional and potentially malign shape. Chapter 4 analyses the development since the establishment of SAARC to the formation of the SAFTA. It chugs through the underlying historical, political and social reasons that may have prompted the events to take place. Prior to 1990s, most of the SAARC countries economies were highly protectionist and very much inward looking. Like other developing and LDCs in East Asia, Latin America and African region, the countries of South Asian region were sluggish in joining the band wagon of PTAs or in binding any sub-regional trade cooperation. The region was familiar for adopting the policy of import-substituting industrialization. The region had tendency to protect inefficient domestic industries by adopting very high tariffs and many forms of NTBs (Non-Tariff Barrier) and discriminated against exports through export controls and taxes, and overhauled exchange rates. In the succeeding years of 1990s the region started to veer its intention and realized the cost of protectionism and began bifurcated liberalization, both unilaterally and sub-regionally. Chapter 5 makes in depth analysis of the developments since the establishment of the SAARC to the formation of the SAFTA and SATIS. To make a critical analysis, the chapter chugs through the underlying historical, political and social reasons that may have provided an impetus for the course of events that staged at that preceding time. Author offers a textual as well as contextual critique of both the SAFTA and SATIS. Author opines that due to lengthy sensitive list of individual contracting parties, the orb of trade liberalization under the rubric of SAFTA has become limited.
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z Regarding SATIS, author remarks that this trade in service agreement is embryonic in nature which precludes evaluating its compatibility with article V of GATS. Author criticizes the dispute settlement mechanism of SAFTA, contending that it fails itself to restrain the scope of adopting the trade remedy measures in international trade. This reiterates that SAFTA is not in conformity with the internal trade liberalization requisites of Article XXIV: 8 of the GATT. As a fitting sequel, Chapter 6 analyses the possible trade impacts and shockwaves of both SAFTA and SATIS. The chapter points out the pitfall features of several bilateral PTAs among SAARC countries which are dilating and corroding type trade liberalization initiative under the SAFTA. Author remarks in the concluding part of the chapter that annulling the existing bilateral PTAs among SAFTA contracting parties is a prerequisite to make SAFTA fully functional. Elimination of bilateral PTAs may cause loss of trade benefits. Hence, author opines that (p. 245) the apprehension of trade benefit loss would be properly addressed if SAFTA offers identical market access benefits. Chapter 7 is the most important part of the book. It reviews the lessons learnt from the preceding chapters. The chapter also reviews the feasibility of greater economic integration of SAARC member countries beyond a mere PTA. Asymmetries in economic development in terms of market depth, business volumes and other such fundamental among countries are not conducive for integration. Within the SAARC region, fundamental asymmetries exist among the member states. Expansion of intra-regional trade offers immense opportunities for sustaining high growth and reducing poverty in the region. Because South Asian economies have largely similar export baskets, the economies could expand trade by promoting intra-industry trade in the region. The chapter recommends a set of measures with a view to advancing trade cooperation among SAARC countries. Necessity for intrepid political leadership for sub regional trade integration; necessity of setting up trade repository for greater transparency as to the laws and regulations of SAARC countries; forming permanent body to coordinate unified policy for multilateral trade forum; progression towards common currency- are discussed and analyzed in the concluding part of the book under review. The chapter also mulls as to the role of Indian leadership in the economic integration of SAARC. India shares border with most of the member countries of the region and it has good marketing capability and linkages in the major importing countries. Therefore, India can become a hub for spurring the growth of intra-industry trade in the region. All these suggestions reiterate the optimist belief of author that the bulwarks of economic integration of South Asia are formidable but not insurmountable. Many of the constraints are merely the outcome of dubious policies pursued by the policy makers in the sub region and can be tackled with sustained political commitment towards the cause of the South Asian economic integration.
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z The pivotal feature of this book is the presence of a comprehensive index in tandem with bibliography, which limits its usefulness as a reference book for scholars and researchers. All in all, the book is a very valuable read, affording insights into several aspects of economic integration in South Asia.
REFERENCES:
1
Pankaj Bhan and RN Srivastava, SAARC: A Trajectory of Growth and Consolidation in Saifuddin Soz and RN Srivastava (ed.), SAARC: Emerging Challenges, (New Delhi: FPSD, 2010) pp. 15 -25 at p.17
2 3
Ibid at p.18 Ibid at p.19
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ALKEMIAL LEGAL EDUCATION VENTURES PVT. LTD. B-3, VARDHMAN GREEN PARK ASHOKA GARDEN BHOPAL, MADHYA PRADESH
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THE CONCEPT OF COLLECTIVE MINISTERIAL RESPONSIBILITY IN INDIA- THEORY & PRACTICE

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INCEPTION OF EPISTOLARY JURISDICTION

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RIGHT TO EDUCATION- IS IT AS BRILLIANT AS IT IS PORTRAYED?

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