Rostrum's Law Review, Volume I, Issue III

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

ISSN: 2321 - 3787
Third Issue
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ROSTRUMs LAW REVIEW

Volume : I Issue: III Third Issue - December- 2013
Mode of Citation: RLR (3) 2013
Editorial Advisor
Prof. (Dr.) G. P. Tripathi

Director, MATS Law School, Raipur, Chhattisgarh, India Guest Editor
Dr. Debasis Poddar

Assistant Professor of Law National University of Study and Research in Law, Ranchi, Jharkhand, India Managing Editor
Anurag Parihar
CEO, Alkemia Legal Education Ventures Pvt. Ltd. Associate Editors
Aounkar Anand
COO, Alkemia Legal Education Ventures Pvt. Ltd.
M. B. Elakkumanan
CAO, Alkemia Legal Education Ventures Pvt. Ltd.
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TABLE OF CONTENTS
F OREWORD BY A. K. KAUL NOTE FROM THE DESK OF GUEST EDITOR DEBASIS PODDAR II I
A. INVITED CONTRIBUTION: THE DOCTRINE OF COMMON E MPLOYMENT IN INDIA: A CRITICAL STUDY G V AJJAPA 001
B. ARTICLES: THE ROLE OF LAW IN SOCIAL TRANSFORMATION A. P. SINGH NIPTARA COURTS: CRITIQUE OF OFFICIAL DISCOURSE ON ACCESS TO JUSTICE ANU CHOUDHURY CONSUMER PROTECTION JURISPRUDENCE: A CONSTITUTIONAL PERSPECTIVE MANOJ KUMAR PADHY FARMERS RIGHTS UNDER PLANT V ARIETY PROTECTION (PVP) LEGISLATION IN INDIA: A CRITICAL STUDY SOPHY K.J. ELUSIVE Q UEST FOR RIGHT TO ACCESS INTERNET IN THE INDIAN LEGAL LANDSCAPE UDAY SHANKAR AND SAURABH BINDAL COMPARATIVE F EDERALISM: TESTING INDIAN CONSTITUTION ON THE YARDSTICKS OF IVO D. DUCHACEK Y OGESH PRATAP SINGH 091 079 061 051 039 024
TABLE OF CONTENTS
B. SHORT NOTES: INTENDED PARENTS AND THE LEGAL CONCERNS
IN SURROGACY
PRACTICES 119
ANEESH V. PILLAI PUBLIC POLICY: ACHILLES H EEL OF INDIAN ARBITRATION DANIEL MATHEW EXAMINING THE INSTITUTIONS FOR P UBLIC P OLICY
IN INDIA: THE
128
ROLE OF JUDICIARY IN CREATING CITIZEN -CENTRIC GOVERNANCE 136
THE SPACE FOR
PRADIP KUMAR PARIDA DISTINGUISHED J URIST: A TALE OF A FAILED CONSTITUTIONAL EXPERIMENT RABINDRA KR. PATHAK ROLE OF ADR IN INVESTOR-STATE DISPUTES SUKANT VATS
145
154
D. CASE C OMMENTS: SITUATION IN THE D EMOCRATIC REPUBLIC O F THE CONGO IN THE CASE OF T HE P ROSECUTOR V .THOMAS LUBANGA DYILO BENARJI C HAKKA SAHARA INDIA REAL ESTATE C ORPORATION L TD. AND OTHERS V. SECURITIES AND EXCHANGE BOARD O F INDIA AND ANOTHER. YASHOMATI G HOSH E. INTRODUCTION TO CONTRIBUTORS 176 A 166
FOREWORD
It is a matter of great academic satisfaction that the editor of the Journal Rostrum Law
Review, Dr. Poddar, a colleague of mine at the NLU, Jodhpur and NUSRL Ranchi invited me
to write a forward to the third edition of Rostrums Law Review, which is scheduled to publish a series of research papers, short articles and case comments contributed by various scholars across the broad spectrum of interdisciplinary research backgrounds in addition to legal scholarship. This issue of the journal is supposed to transcend the limitations of a typical law journal to graduate to the firmament of interdisciplinary scholarship, for which the credit goes to Dr. Debasis Poddar , Guest Editor, of this edition of the Journal. Dr Poddar was my colleague and assisted me in meaningful ways in developing newer institutions like NLU Jodhpur and NUSRL Ranchi and academic journals including
Rostrums Law Review. I have browsed earlier editions of this online journal. Its continuity
apart, I believe that this Journal seems to offer meaningful academic discourse from law school students and other stakeholders. I always believed and had a dream that, besides teaching, newer institutions of legal
education can flourish and make a mark only if the institutions engage themselves in quality research and research assignments. Accordingly in pursuit of my dream I put in tireless efforts to encourage one and all of my colleagues and students - both in Jodhpur and Ranchi - to engage in legal and interdciplinary research. In India, so often than not, academic journals suffer from short life - perhaps out of nonacademic reasons of their own. I understand that Rostrums patrons are aware of this predicament and are willing to carry forward such a venture way ahead with time. I suggest widest possible circulation of this journal to overcome the predicament of its early demise and wish the journal a very long, happy and prosperous life.
New Delhi, December 25, 2013.
Prof. A. K. Koul
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FROM THE DESK OF GUEST EDITOR

Welcome back to rostrum- a juridical forum @ third millennium! The term rostrum, since time immemorial, refers to insignia of democracy in general, and freedom of speech and expression in particular, the way Greek civilization introduced a cornerstone in ancient city states for this purpose. Im glad to find that key persons behind Rostrums Law Review- who happen to be my former students- understood the inner meaning of rule of law in essential sense of the term. Im also delighted for being invited to contribute as Guest Editor of this journal as successor of no less than Prof. (Dr.) G. P. Tripathi- a giant personality along with his prolific contribution toward the world of juridical and academic scholarship in India. I feel confident that, with the passage of time, this journal is likely to emerge as a cornerstone for freedom of speech and expression to its readership. So far as methodology (adopted as part of my stewardship) is concerned, I did mention to contributors that there is no particular theme for this issue except specific guidelines to fit their works into its broad spectrum as an interdisciplinary journal. I prefer not to concentrate on theme-based issue at the beginning of this journal since, at its beginning years, rearing its readership seems much more imperative than to put a(ny) particular theme and its text in interdisciplinary context. As per treatment of their respective subject matters, contributions of this issue are divided into five parts, e.g. (i) invited contribution (ii) article (iii) short note (iv) case comment and (v) book review. Except book review, we received contributions for all other heads. Review literature seems yet to develop as full-fledged literature in itself. Also, translation from vernacular to English seems not yet developed and I received no contribution despite my personal interest to this end. Im proud to receive scribbling from Prof. G. V. Ajjappa, a prize contribution indeed, on our request. Albeit not so prolific by default, he is a known name and I need not mention that (t)his contribution adds value to upcoming academic ventures like ours. Besides, after
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thorough peer group review in technical sense of the term, I found the following works shortlisted as per the sense of appreciation of our own. I was careful and cautious enough not to weigh the contributors with academic profile but quality of contribution alone. The range of authors represents a national character of the journal, cutting across all nonacademic barriers like designation, seniority, gender, occupation, and the like. Young researchers works are thereby encouraged as representative specimens of our emerging academic scholarship. Citation policy. The journal being multidisciplinary one, albeit predominantly of law so far, I prefer not to adhere to a(ny) rigid mode, e.g. Harvard Blue Book, Chicago Manual of Style, American Psychological Association, and the like. Neither I prefer to remain country specific through adherence to the mode of Indian Law Institute or even subject specific through that of Indian Society of International Law. Therefore, I allowed uniform mode of citation despite divergence of citation mode in this issue. At least, I saved contributors from being victims of authoritarianism to this end lest they may face inconvenience with one foreign to their disciplines. I do hope that the readership will return to us with constructive criticism of its own and the same is scheduled to lead this journal toward further soul-searching process for betterment of its quality in time ahead. After all, perfection is a perennial odyssey and never an end in itself. I need enlightened readership to be with us as integral part of the process toward further development of our humble initiative. With these words, I put end on my part and offer the forthcoming academic initiative for publication. Minute shortcomings of this initiative, whatever the same may be, constitute fulcrum to lead succeeding editors fortify our castle in time ahead.
Debasis Poddar November 23, 2013, Ranchi (Jharkhand), India. Guest Editor, Vol. 1, Issue 3, Rostrums Law Review.
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Rostrums Law Review ISSN: 2321 - 3787
THE DOCTRINE OF COMMON EMPLOYMENT IN INDIA: A CRITICAL STUDY

G V AJJAPA The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories institution of public policy, avowed or unconscious, even the prejudice which the judges share with their fellow-men, have had a god deal more than the syllogism in determining the rules by which men should be governed. O.W. Holmes in THE COMMON LAW (P.1). You will not mistake my meaning or suppose that I deprecate one of the great humane studies if say that we cannot learn law by learning law. If it is to be anything more than more than just a technique it is to be so much more than itself: a part of history, a part of economics a sociology, a part of ethics and philosophy of life. Lord Radcliff in LAW AND ITS COMPASS (1962). Quoted in Lloyds INTRODUCTION TO JURISPRUDENCE (7th ed.) (P.1). The purpose of giving the above two extracts is to show that the study of law in Indian law schools and colleges require a critical outlook towards the doctrine and decisions. Statements in some of the text-books are likely to be taken for granted and decisions are quoted as if those decisions are true and authoritative. A study of the history and development of the doctrine of common employment shows the forces at work in the origin of the doctrine and development of the law. Often the books used by many teachers and students of law contain statements which may not be very accurate. Most of the Indian text books on law of torts state that the doctrine of common employment has been abolished by the Employers Liability Act, 1938 as amended by the amendment Act of 1951. One of the books published in 1964 states that the doctrine.is still applicable though with caution. Another book on Law of Negligence published is 1968 states that the the doctrine was never considered as part of the law in India There are other books used by the law students which state that the doctrine has been abolished. Ratanlal and Dhirajlal in 24 th
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edition of their Law of Torts states that after the statutory amendments, it can safely asserted that the doctrine of common employment cannot be applied in India.i The purpose of this article is not to justify the doctrine is reasonable, but to show that the Employers Liability Act was simply a hasty legislation based on the outdated, extensively Criticized English enactment of 1880. Even after the remarks of the Privy Council in
Governor-General v. Constance Zeenaii the legislative draftsman did not resort to simple
device of abolishing the doctrine on the model of English legislation. Comment on the Indian Act will be given at the end of this article to show the possible problems of interpretation. An earliest Indian decision was Mary Anne Turner v. Scinde. Punjab and Delhi Railway Company has an interesting discussion on the doctrine and its application in India. The Case was compromised with the railways agreeing to pay an ex gratia payment which was accepted and the possibility of further litigation before the Full Bench. The discussion therein shows that one of the judges took the view that was expounded in an English case of the early part of 20th Century. In Blanchette v. Secretary of Stateiii (1912) and in Abdul Aziz v. Secretary of State iv Courts applied the doctrine of common employment. Such decisions necessitated the enactment of 1938 Act -which instead of abolishing the doctrine confirmed application of it in certain cases. The main object of this article is to state briefly the history of the doctrine in England and to examine Indian decisions which discuss this doctrine and to comment on the provisions of the Employers' Liability Act, 1938. It is generally believed that the doctrine was an exception to the principle of vicarious liability of the master for the negligent acts of his servants and agents. The doctrine of vicarious liability was itself was a product of changing social and economic conditions of English society during the latter part of 17th and early part of the 18th Centuries. Holdsworth has pointed out that it was Holt C.J. who clearly formulated the principle of vicarious libi1ity in the modern form in a number of decisions delivered between 1690 and 1710. Holt.C.J. based the principle of vicarious liability on public policy and said that for seeing somebody must be a loser by this deceit, it is more reason that employs puts a trust
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and confidence in the deceiver should be a loser than a strangerv in Hern V Nichlosvi (1709) and similarly he stated in Waylandvii case that the master is chargeable, for the master at his peril ought to take care what servant he employs; and it is more reasonable that he should suffer for the cheats of his servants than strangers. At the turn of the 19th century the modern principle of vicarious liability of the emp1oyer to the outsiders was firmly established. The question before the court in Priestly v. Powlerviii was whether the principle of vicarious liability should be extended to insiders also. To the judges who were trained in the laissez - faire philosophy the extension of the principle of vicarious liability to the follow-servants looked unreasonable and opposed to public policy, and any such extension, the judges thought would impose a new and an indefinite series of liabilities on the masters, Munkman observes that "the doctrine of vicarious liability was set up to protect the interests of the strangersthus in approaching the liability of a master for the injuries c aused by one servant to another, the courts had to consider whether they should extend vicarious liability. They decided against any extension, and so the doctrine of common employment was born. But it is wrong to suppose that, prima facie, the master was liable for the torts of his servants towards both outsiders and insiders, and that the courts established an exception as regards insiders, on the ground that they had agreed to accept the risk: though this was the view taken by the courts after the doctrine became established.ix
Priestly v. Flower was the first recorded case in which claim against the master was made by
one servant for the negligence of another. It was difficult to find in the judgment of Lord Abinger a definite theoretical formulation of the principle of the doctrine of common employment. Holdsworth formulates three principles on which the judgment proceedings, viz., 1) form the relation of the master and servant there cannot be implied an obligation on the part of the master to take more care of the servant than he takes of himself; 2) the servant, by entering on and continuing in the employment has chosen to abide by the risk, of which he is likely to know as much if not more than the master; 3) to allow such actions would be a direct incentive to omit that diligence and caution which he is in duty bound to exercise on behalf of his master, to protect him against the misconduct or negligence of others who serve him. x It was left to an American judge, Chief Justice Shaw of
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Massachusetts, in Farwell v. Boston and Worcester Railway Corporation (1842) to give a theoretical basis for the doctrine of common employment. The American case has been described as a judgment which is the fountain-head of all the later decision. xi While
Priestly v. Fowler appears to precede to the principle of voluntary assumption of risk

(volenti non fit injuria) the American case establishes the doctrine on the principle of implied contract of the servant with his master. The doctrine as established in the American case and accepted by the English courts is as follows: Strangers can hold the master liable for the negligence of the servant about his business. But in the case where the person injured is himself a servant in the same business, he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to his master, you shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claim on the master depend on the contract of service. Why should it be an implied term of the contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment.xii The doctrine as laid in the American case was accepted by Baron Alderson in Hutchinson v.
York Newcastle and Berwick Railway Companyxiii wherein he said:

They have both engaged in common service, the duties of which impose a certain risk on each of them; he knew, when he engaged in the service, that he was exposed to the risk of injury, not only from his want of it on the part of his fellow servant, and he must be supposed to have contracted on the terms that, as between himself and his master, he would run this risk. The courts in Scotland had showed a healthy sign in interpreting the duties of the employer and rejected the doctrine of common employment in earlier cases. If the principles laid down in these cases had been accepted by the House of Lords in Bartonshill cases Scottish
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law would have been saved from the doctrine of common employment. Unfortunately that was not being. In Bartonshill Coal Co. v. Reid (1858)xiv and Bartonshill Coal Co. v. McGUire (1856) xv Lord Cranworth held that the doctrine of common employment was equally applicable in Scotland also. The high water mark of the reached with the decision of the House of Lords in Wilson v. Merryxvi another Scottish case. The Court of Session of Scotland had held that an employer could not escape from liability by delegating his responsibility to a manager. The House of Lords reversed this decision, Lord Cranworth said Workman do not cease to be fellow workmen because they are not all equal in point of station or duty. xvii Board Cairnsxviii held: But what the master is, in my opinion, bound to his servants to do, in the event of his not personally super-intending and directing the work, is to select proper and competent persons to do so, and furnish them with adequate materials and resources for the work. When he has done all that he is bound to do. And if the person so selected is guilty of negligence, this is not the negligence of the master. Such a doctrine in an ever expanding industry which was controlled by companies made the matters worse to the employees. The employer, whether an individual or a company, need only show that proper care was taken to appoint a qualified person to avoid the liability. The growth of colossal industrial undertaking, say the Webbs,xix in which thousands of workmen were, technically, in common employment, made the occasional harshness of the law still more invidious. This state of law resulted in the working classes and their unions seeking the abolition of the doctrine of common employment. A number of Employers Liability Bills were introduced from time to time by the trade union representatives in the House of Common only to be thrown out. Ultimately in 1880 a partial reform by the Employers Liability Act was brought in. This Act which was intended to curtail the defence of common employment had in it the hidden snares and gave raise to innumerable difficulties or interpretation, and the verdict of scholars is in no way complimentary. The employers adopted the expedient of contracting out to avoid their liability. Most appropriately it has been pointed out that the
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courts have made us bad law, and the legislature instead of abrogating it, has mitigated it in a half-hearted fashion with a number of minute and desultory exception.xx The Employers Liability Act, 1180 has been describedxxi as an ill-drafted statute adding to the complications of the common law, with the result the question whether a workman could recover damages for his employer for an injury done be a fellow-servant depended on a variety of petty circumstances and on subtitle question as to the meaning of the provisions of that statute. Now this state of things is in itself condemnatory of the existing law. The relations between masters and workmen ought to be regulated by clear rules based on broad intelligible principles; for even a bad rule which is understood causes in such relations far less suffering and evil that a rule which, though intended to be fair, is in fact unintelligible and therefore uncertain in its operation. When Parliament was called upon to deal with rules affecting the liability of employers for accident to their workmen, there were only two intelligible courses open to the legislature. The one was to leave the law alone. Whether this course would have worried great injustice may be well open to doubt; when the people know what the law is, and their freedom of contract is not hampered, they can generally carry out contractual arrangements which guard against any practical injustice resulting from the condition of the law. The other course was to abolish the so-called doctrine of common employment. This would have simplified the law and completely satisfied the claims of the workmen, and would have inflicted upon the employers no greater injury. Members of the Parliament refused to take either course. They sanctioned an enactment which may be described as a series of exceptions modifying an exceptional rule, and themselves modified by a series of hardly intelligible provisos. In consequences, workmen who complained of judge- made law, which at any rate was intelligible, have been placed under a Parliament-made law which neither employers nor workmen, nor lawyers can understand. The rigor of the Judges caused less suffering than the incompetence of Members of Parliament. These comments have to borne in mind when we examine the Indian enactment, viz., The Employers Liability Act, 1937. The next important land-mark in the history of the doctrine of common employment was the decision of the House of Lords in Smith v. Backer & Sons.xxii
An attempt was made to bring back the doctrine even in the limited number of causes coming under the Employers Liability Act, 1880, through the back-door i.e. with the defence of violenti non fit injuria. The House of Lords refused to hold that the maxim applied to all those cases where there was some risk or danger, and refused to infer the voluntary assumption of risk from the mere fact that the plaintiff knowing of the risk continued in his words. The contention of the defendants that whenever a person knows there is a risk of injury to himself, he debars himself form any right of complaint if an injury should happen to him in doing anything which involves that risk was answered by Lord Halbury .L.C. xxiii in the following passage: if applicable to the extent that is now insisted on, no person ought to have been awarded damages for being run over in London streets. Further he observed that a workman who never in front himself exposed to it and complains of it, cannot in my opinion be held, as a matter of law, to have impliedly agreed to incur that danger, or to have impliedly agreed to incur that danger, or to have voluntarily incurred it, because he does not refuse to face it. The house distinguished be tween those instances where the job is inherently dangerous and the workman is aware of the dangerous character of the employment and those cases where there is no inherent peril in the work performed by the servant, but the risk to which he is exposed arises from the defect in the machinery used in another department over which he has no control.xxiv Lord Herschellxxv said that Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, no doubt voluntarily it, and cannot, if suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action. He addsxxvi later that if the employed agreed, in consideration of special remuneration, or otherwise, to work under condition in which the care which the employer ought to bestow, by providing proper machinery or otherwise, to secure the safety of the employed, was wanting and to take the risk of their absence, he would no doubt be held to his contract, and this whether such contract were made at the inception or during it continuance.
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Further explanation and refinements of the doctrine were still to come. Thus in Johnson v.
Lindsay & Co.xxvii the main question was as to the meaning of fellow-servants. Should the
criterion for determining who is the fellow-servant be common work, i.e., employed by different masters but working for the common end or job or is it necessary that they should be under the direction and control of the common master? The House of Lordsxxviii held that unless the person sought to be rendered liable for the negligence of his servant can show that the person so seeking to make him liable was himself in his service, the defense of common employment is not open to him. Similarly Lord Watson xxix states, I do not doubt that the appellant, and the servants of the respondents, though engaged in different departments of work, were yet employed in furtherance of the common end of completing the block of dwelling-house. Nor do I doubt that, if they had all been servants of the same master, the appellant would in Law be held to have accepted the risk of his fellow servants negligence, and could have no claim for reparation, except against the workman who injured him. But there is, in my opinion no ground for suggestion that the respondents servant were, in any sense whatever, the servants of Higgs & Hill, (Contractors) and therefore fellow-servants of the appellant. The second point which was the subject-matter of controversy and which required further clarification and refinement was the concept of common work. When can we say that two persons who are engaged in common work? Are all persons employed by a great company engaged in the common work for the purposes of the doctrine? What was at the beginning of the 19th century a simple matter had assumed towards the middle of the century a different aspect altogether. The industry was no longer controlled by one master who supervised the work of all his employees, or by small group of entrepreneurs, but increasingly by companies controlling a number of establishment spread over the country, employing thousands of workmen in different industries or in diverse departments in the same organization. The test adopted by the English Courts towards the end of the century and further refined during the 20th century was the concept of special risk. In the words of Munkman xxx it was necessary to show that the two servants were so related that the negligence of one towards the other was the ordinary risk of the employment, as distinct
from the ordinary risk of ordinary life. It was suggested that where there was one common general object. In attaining which a servant was exposed to risk, the servant was not entitled to sue the master if he was injured by the negligence of another servant whilst engaged in furthering the same object. This perhaps, says Lord Atkin,xxxi records the high watermark of the doctrine, from the employers point of view. Common work has been explained by Lord Wright,xxxii as work which necessarily and naturally, or in the usual course, involves just a position, local or casual, of the fellow employees, and the exposure to the risk of the negligence of one affecting the other The nexus may be some general undertaking, which however large it may be can be regarded by the court as a unit. ( Radcliffe v. Ribble
Motor Service Ltd., (1939) 1 AILER). Lord Porter observed in Lancaster v. London Passenger Transport Board,xxxiii Common work embraces a case where the work of the one is so related
to the work of the other that the risk of injury to the one owing to the carelessness of the other is not shared by the world at large but is a special risk which must be deemed to have been contemplated as possible when the workman entered into the service. If the risk of collision between the two vehicles is merely the ordinary risk arising from contiguity in traffic of being run into by another vehicle, whoever the driver of that other vehicle may be, then the injured party has no special interest in the skill and care of the driver though that driver works under same employer. He is taking the ordinary risk of the road, not a risk which is due to the special relationship between himself and fellow-employee. But if the work of the two is such that one of them depends for his safety in the special degree on the skill and care of the other, then they are engaged in a common work and each must be deemed to have undertaken the risk of negligence of the part of the other. While these developments were taking place in the history of the doctrine of common employment the judgment of the House of Lords in Willson & Clyde Coal Co. v. English gave the fatal blow to the doctrine of common employment by clarifying the law relating to the duty of the employer regarding the safe system of working in an undertaking. The House held that the doctrine of common employment did not apply where it was proved that a defective system of working was proved. The employer could not escape from the liability by showing that he had appointed a competent delegate as required by a provision
of law. Though this paramount duty of the employer had been spelt out in earlier cases xxxiv during the 19th Century, it had not been fully expounded until Wilsons case. Lord Wright in
Willsonsxxxv case explained the nature of employers duty in the following passage:
The house held that the statutory duty was personal to the employer, in this sense that he was bound to perform it, by himself or by his servants. The same principle applies to those fundamental obligations of the contract of employment which lie outside the doctrine of common employment, and for the performance of which the employers are absolutely responsible. When I use the word absolutely, I dont mean that the employers warrant the adequacy of plant, or the competence of the fellow-employees or the prosperity of the system of work. The obligation is fulfilled by the exercise of the due care and skill. But it is not fulfilled by entrusting its fulfillment to employees, even though selected by due care and skills.xxxvi He further observes: But it (the doctrine of common employment) has never been carried to the extremity of excluding all remedy against employers, or all duty in the employers. so long as they have exercised care in the selection of managers or foremen. It is difficult to see what that duty would mean in the case of an absentee, or infant, or inexpert employer or what it would mean in the case of a great modern industrial concern. But in truth the employers obligation is personal to the employer, and one to be performed by the employer per se or per alios.xxxvii Before we proceed to the history of the doctrine on the Indian law it is appropriate to note that the severity of the doctrine of the common employment was taken away not only by the developments stated above but also by certain other developments. Firstly, the development by the English courts concept of breach of statutory duty. This concept was firmly established with the decision of the Court of Appeal in Groves v. Wimborne,xxxviii and secondly, the passing of Workmens Compensation, 1897 to 1925, which were replaced by the National Insurance (Industrial Injuries) Act, 1946. These developments in the common law and the statutory law took away much of the mischief of the doctrine of the common employment. The final part of the story of the doctrine came in the form of a very brief enactment, viz., the Law Reform (Personal Injuries) Act, 1948, which abolished the doctrine
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altogether. Thus ended the story of an illogical and irrational doctrine which was detested by the judges and the jurists, and by the labour. But when this came it was already a dead horse, it caused no major Changes in the industrial world and as Munkmanxxxix puts it it was little more than a ripple on the surface of the tide. In the light of this history of the doctrine in English law we have to examine the history of the doctrine in the Indian law. The earliest recorded case on the doctrine in India was the decision of the High Court of North western Province Mary Anne Turner v. Scinde, Punjab
and Delhi Railway Companyxl, decided in April 1873. Briefly the facts of the case are as
follows: The plaintiffs husband was a platelayer was to supervise the permanent way and to keep it in the proper repair. In discharge of these duties they were required to travel up and down, and for this purpose trolley was provided with a gang of coolies. They were also allowed to travel by any train or engine. A free duty pass was also issued to each platelayer to enable him to travel by train if he chooses to. Plaintiffs husband was assigned a portion of the track and in his discharge of his duties he was required to travel between Khatauli and Meerut. He was residing in the bungalow given to him by the side of the track near Khatauli. On the day of his death he went to Meerut by trolley and was returned from Meerut to Khatuali by train. When the train by which he was travelling was midway between these two stations, the engine was particularly disabled. It was detached and taken by the driver towards Khatuali, but after proceedings a few miles the engine was totally disabled. Hence, the driver left the engine there and proceeded on foot to Khatuali, and from there telephoned to Meerut for assistance. The driver had not put up for signals nor did he send any message to Meerut warning that the engine had been left on the track few miles away from the compartments. A relief engine was dispatched from Meerut and it started pushing the train towards Khatuali at the rate of 6 miles per hour. The train collided with the stationery engine and in the collision the plaintiffs husband sustained injuries and later died. Plaintiff sued the company and claimed damages of Rs.60, 000.
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The subordinate Judge dismissed the claim holding that the deceased died through the negligence of a fellow-servant while in the course of common employment, and the nature of his employment was such that he had taken upon himself the natural risks and perils of such accidents. In appeal before the High Court it was contented that the deceased was not employed in the same service as the man through whose negligence he met his death. Staurt C.J. and Turner .J. having disagreed, the matter was referred to the full bench, which without giving any definite answer directed the bench to make further enquiry regarding the question whether the deceased was on duty while travelling back in train. In the judgment on further enquiry Turner.J. following Farewells case and the leading English cases came to the conclusion that since the deceased was travelling on the duty pass and was returning home after the days work still in the course of employment, and that he was a fellow-servant with the engine driver engaged in the common work. He thought that the principles enunciated in Farewells case and in the Bartonshill case, Morgan v. The value
of Neath Railway Company, and Wilson v. Merry, were completely in accord with the
principles of justice, equity and good conscience, and hence claim should fail. On the other hand, Stuart. C.J. starts his judgment criticizing the view taken by subordinate judge and Justice Turner. The Chief Justice rightly distinguishes this case from Morgan v.
The Vale of Neath Railway Co.,xli Farwell v. The Boston and Worcester Railway Corporation; and from the principle expressed
by Cranworth in Bartonsill Coal Co. v. Reid. The view taken by the Chief Justice was that the deceased at the time of his death was not in the course of employment as he was returning after the days work. He asks did the duty and responsibility of that position always and continuously attach to him, morning, noon and night, sleeping, or working, at Khatauli or Merrut, or travelling between the two places? Did the company by their contract secure their complete and perpetual immunity from any responsibility, no matter what might be going on during the 24 hours of the day? he answers the questions: the days work was
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over, and he was simply returning home in the evening, and it was no part of his engagement to travel in any particular way or by any special mode of conveyance. xlii Further if he travelled by train even on the business of the company, was he not entitled to assume that the company would take every reasonable safety, and not block up the line on which he was travelling by placing disabled engines on it, and if so entitled to expect and assume was such expectation and assumption not in the nature of a right? There must be some limit to the expression common work of the company. If the deceased had actually been plate laying at the time of the accident, or engaged in any kind of actual work on the line which brought him into operative contact with the engine driver, then the contention of the respondents might be regarded with more favour, but at the time of the collision he was neither working on the line nor was he travelling under any engagement. On these views, therefore, I hesitate to decide that Turner was a fellow-workman in the sense supposed by Lord Cranworth. I have quoted in extensor from the judgment because the view expressed by the Chief Justice are fundamentally sound, and similar views have been expressed by the English judge during the current century in the cases which we have already seen above. From this judgment of the Chief Justice the following propositions can be deduced. 1. Assuming that the deceased was on duty the employer had not maintained safe place of working. 2. Though the driver and the deceased were fellow-servants the deceased was not on actual duty in as much that he was utilizing an amenity which was provided by the employer. The use of this amenity should not be considered so as to render the deceased on duty. 3. Common work means that the persons concerned should share some special risk. In spite of the well-reasoned judgment the learned Chief Justice concurred with Justice Turner in dismissing the appeal on the ground the law on the subject is not so clear and undoubted and my own opinion on the case is not so decided as to justify me in recording a
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judgment against the defendants which would simply have the effect of subjecting the parties to the trouble, expense and delay of another appeal. Second case in which the doctrine of common employment came to be directly considered was Blanchette v. Secrectaryxliii before the Allahabad High Court. The facts of the case are that the Plaintiffs husband was a driver in the service of the Oudh (O) and Rohilkhand (R) Railway. He was killed in a collision between Desane (D) and Ghazibad (G) Railway Station. Station D was on O & A line, but G was a station used by O & R Railway and also by East Indian Railway and others. The employees at Ghaziabad were not servants of the O & R Railway also. The exact cause of the accident was not known. However, it was clear that it must have been due to the gross negligence of someone either at D or G. It was contented by the plaintiff/appellant that the respondent company maintained incompetent staff, and that the company neglected to supply suitable and safe machinery and appliances for working on the line. The Court on evidence found against the appellant on both issues. In this connection the court observed that: It is perfectly clear in this country where there is no legislation analogous to the Employers Liability Act that a servant has no cause of action against his master for the neglect of another servant in the common employment of the same master and this notwithstanding the fact that the nature of the employment of the servant suffering the injury and the servant whose neglect causes the damage is very dissimilar. xliv However it was perfectly clear that the doctrine applied in India was not explained by the learned judges of the High Court. In the course of the judgment there is no reference to the earlier decision of the same High Court mentioned above,xlv nor is there any discussion of the principles or the reasons why the doctrine should be introduced into the Indian law. As we have already seen that by 1912 there was a strong trend of opinion in England critising the doctrine of common employment as an irrational doctrine unsuited to the changing conditions of the industrial life of the country, and there was a conscious judicial and legislative effort to restrict the operation of the doctrine. Yet the Indian High Court came to the conclusion that the doctrine had application in India as though the Common Law had per se operation in India also.
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The next case in which the doctrine has been mentioned is Abdul Aziz v. Secretary of
Statexlvi. The plaintiff was employed as a tally clerk by M/S. Eastern Express Co. Ltd., It was
his duty to tally the cargo which was unloaded from the ships coming to Karanchi wharf, of which the Eastern Express Co. were agents. A ship was unloaded and two railway wagons were brought in front of the Ship to take in some cases of wine. After certain cases of wine being loaded the wagons were temporarily shunted to another line being transferred to another line. These being the wagon in question were again brought back to the line. While this was going on the plaintiff was in one of the wagons. On account of certain jerks in the course of shunting two or three cases of wine fell down injuring plaintiffs leg. The Secretary of State for India was made a party as the wagons belonged to him. In addition he made his employers and stevedores in charge of unloading also defendants. The additional commissioner Rupchand found that there is no allegation much less evidence that defendants 2 or any of their servants was any way concerned either in the piling of cases or the shunting of the wagon. Since the suit was dismissed it is clear that the Railways were not negligent in their work. After this conclusion the learned A.J.C. indulges in uncalled for discourse on the doctrine of common employment. One fails to see the justifications for such discussions where the pleading and the evidence did not raise the issue at all. The next case on the doctrine is Secretary of State v. Rukhminibaixlvii. Respondents husband, Mr. Godbole, was employed as a temporary time-keeper on the G.I.P. Railway. On the date of the accident he travelled on a trolley with one Mr. Patel, the permanent was inspector, who was also his superior officer. While the trolley was passing through one of the tunnels a train coming from behind overtook them. Patel, Godbole and four coolies jumped off the trolley before the engine struck the trolley. Godbole was struck by the trolley and his head dashed against the wall of the tunnel, as a result of which he was instantly killed. It was found that the accident was due to the negligence of the permanent way inspector in not obeying the instructions concerning the use of the trolley.
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Followed in England, but also in America and other countries, and at any rate I cannot hold that it is intrinsically an unjust principle. Such are the remarks coming from a judge as late as 1935: Niyogi A.J.C. on the other hand took a different view of the matter. According to him that the common law could be invoked in India as a matter of justice, equity and good conscience. Though the English statues cannot have any application in India nevertheless, any court in India which takes recourse to the Common law of England and seeks to apply its principles to India cannot afford to ignore the extent to which the common law stands abrogate by statute. It is manifestly anomalous and illogical to apply in the name of justice, equity and good conscience, to India the doctrine of common law which is no longer regarded at its source as fair and equitable and enforced as such.xlviii As the two Additional Judicial Commissioners differ the two question whether the doctrine of common employment prevails in India in case that in England would come under the Employers Liability Act? was referred to the Judicial Commissioner. In the opinion on reference R.E. Pollock J quotes with approval the opinion of Lord Herschell in 1894 A.C. 318
Palmer v Wiek., that the doctrine is not founded on any principle of justice or equity or
even of public policy which justifies its extension to the jurisprudence of other countries.xlix Justice Pollock observes No such doctrine appears to exist in the law of any other country in Europe, and in my opinion the doctrine is not, under the conditions of to-day, in accordance with the principles of justice, equity and good conscience.l He clearly states that the doctrine is unsuitable to the Indian condition, and quotes the view expressed by the Royal Commission on Labour in India which also felt that the doctrine was inequitable. Stone C.J. li held that in applying certain parts of the Common law to India one has to consider whether those provisions are in accordance with justice, equity and good conscience, and also the age in which the application is to be made. He states: One cannot take the common law of England divorced from the statute law of England and argues that the former is in accordance with justice equity and good conscience and that the latter which has modified it is to be ignored today in England, so far as this case is concerned I
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am of the opinion that the doctrine of the common employment would not apply, not because this case would fall outside the common law doctrine of common employment, but becomes it would fall inside the Employers Liability Act. Thus the two judges agreed that the plaintiff should succeed, but the C.J.s view was that the doctrine as modified by the English statute could be applied India. This view of the chief justice is rather unfortunate. The better view is that of justice Pollook, who already expressed the view that the doctrine had no application in India. The last case before the passing of the Employers Liability Act, 1938, was from Calcutta and in which the doctrine was unnecessarily introduced and discussed. Brookle Bank Ltd. v.
Noor Ahmodelii. Though the Calcutta High Court held that the case did not call for the
application of the doctrine, the discussion makes one to believe that the doctrine had some application in India. In appeal the Privy Council observed that there was no necessity to discuss the doctrine. Lord Wright delivering the opinion of the Privy Council observes: questions have been raised whether a doctrine so unsatisfactory both as to its policy and as to its practical results ought to be followed at all or at any rate without qualifications the Indian courts as a part of the law of India, particularly when in England it has been qualified and largely abrogated by legislation which has no counterpart in India. It may further be observed that the fiction of an implied contract has always been regarded as difficult But their Lordships do not desire to discuss or express any opinion upon this important question since it does not arise in this case. It must be left for full discussion in some case in which it is material and fully argued.liii A study of these cases indicates that the question of the application of the doctrine of common employment was doubtful. The only case during the current century where the doctrine was applied was that of the Allahabad High Court decided in 1912, and in which the Court did not take into consideration the developments that had taken place in England and the well-founded criticisms advanced by the judges, jurists and the trade union leaders. The opinion of Stuart.C.J. in the earlier decisions of Allahabad High Court contains a very good discussion of the doctrine, and if that view had been accepted by the court it would
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have established the doctrine at least within in the jurisdiction of that court in a much harmless manner. For the judgment of the Chief Justice contains the principles that were enunciated by the House of Lords in Radoliffe v. Ribble Motor Services and Lancaster v.
L.P.T.B.
In view of Nagpur decision and observation of Lord Wright in Calcutta case and in view of development that had taken place in England it is extremely doubtful whether in other court in India would have applied the doctrine in India. Nevertheless the Indian legislature passed in 1938 the Employers Liability Act 1938. This act was enacted due to the observation of the Royal Commission on Labour in India.liv Persons injured by accident may have a remedy by a suit for damages against their employer in the civil court, and it is suggested that the law there applicable is inequitable because two defences may be evoked by the employer to defeat the claims which he should justly be called upon to meet. One is the defence of common employment by which an employer can plead that the accident was due to the fault of a fellow workman, and the other is the defence of assumed risk by which an employer is not liable for an injury caused to the workman through the ordinary risks of employment, and a workman is presumed to have assumed risks which were apparent when he entered upon his occupation. When the Indian Workmens Compensation Act was first introduced, it had, in addition to the provisions for workmens compensation, clauses designed to abrogate these defences in certain cases; but the Joint Selection Committee of the Legislature deleted the clauses in question, apparently because they were not satisfied that the doctrines to which we have referred, which were derived from the British Common Law, would be accepted by Indian Courts. They observed at the same time that, if the doctrine in question were so accepted and were regarded as inequitable, they should be removed for all workmen and not for the limited classes to which the Workmens Compensation Bill was to apply. .. It is possible that the suits are not pursued because of the admitted ambiguity of the law and, as the defences in questions are in our view in equitable, there is need for ensuring that they cannot be invoked.
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In the view of the above opinion of the Royal Commission the Employers Liability Bill was introduced and ultimately in September 1938 it became the law. Unfortunately the provisions closely follow the provisions of the English, 1880. When the English Act was passed there was some doubt as to exact scope of the duty of the employer, and as a result of the decision Wilson v. Merry lv in 1868 by the House of Lords it was thought that the employer need to do was to exercise due and skill in selecting qualified managers or foremen and there after he owned on duty towards the employees as regards the system of work, safety of the plant, machinery, way or works etc. hence it was necessary for the legislature to provide for such matters in the statute to exclude the defence of the doctrine of common employment in such cases. In Bartonshill v. Reid
lvi
Lord Cranworth
commenting on Sword v. Cameron was of the view that the employer owed a duty to the employee to establish a safe system of working. In Smith v. Backer & sonslvii Lord Watson explained that this duty was a recognized principle of the common law. Finally in Willsons
& Clyde Coal Co v. Englishlviii the nature and the extent of the common law duty of the
employer was held to be personal to him. By the time the Indian Bill was passed into the law
Willsons & Clyde case had been decided and it is surprising as to why the Indian legislature
took the trouble of introducing these detailed provisions in the Act. The effect could have been achieved by providing in a simpler Act a declaration that the doctrine of common employment has no application in India. The preamble to the Act is significant in as much it states that it is an Act to declare that certain defences shall not be raised in suits for damages in respect of injuries sustained by workmen. This clearly indicates that the legislature intended to abolish the doctrine of common employment and the doctrine of assumed risk. One consequence of the Act as it stood before the amendment, particularly section(3)lix was that it raised a problem of interpretation in Constance Zena v Governor-
General of Indialx and in Dominion of India v. Kaniz Fatima. The Lahore High Court took
the view in the first case that the paragraph contains three situations viz., (I) in obedience to any rule or bylaw of the employer or (II) in obedience to particular instructions given by any person to whom the employer has delegated the authority in that behalf or (III) in the normal performance of his duties. It was contented that this clause covered only two
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categories of negligence the act or omission of a fellow-servant done or made (i) in obedience to particular instruction given by the person either by virtue of authority delegated by the employer in that behalf or in the normal performance of such persons duties. According to this construction the words to whom the employer has delegated authority in that behalf, and hence they do not apply to co-employee who is carrying out his duties. The high Court rejected this construction on the ground that if this was the intention of the Legislature the words or in the normal performance of his duties were entirely unnecessary. The Privy Council, however, upheld the second interpretationlxi and reversed the judgment of the Lahore High Court. This interpretation, it said, accords better with the grammatical construction of the paragraph and is the more natural reading of the language used which, as its title to the particularly of the several paragraphs of sec. 3 go to show, was intended not to abolish the doctrine of common employment but rather to reduce its scope. If, however, what may be called the three category construction were to prevail the result would be to reduce the doctrine almost, if not altogether, to the point of extinction and to render notices much in section 3 which is designedly detailed and specific. It is unfortunate that before the Privy Council the respondent was not represented and that it did not consider whether the doctrine had any application in India. Even the High Court assumed that the doctrine applied in India and the attention of the court to the Nagpur case and to the remarks of Lord Wright in the Privy Council caselxii of 1940 was not drawn. Though one cannot entirely disagree with the interpretation given to the ill-drafted clause, yet one fails to see how the Privy Council could place so much reliance on the marginal note to section 3 of the act and completely ignore the preamble to the act which indicates that these defenses shall not be raised in suits by the workmen. If it had been shown to the Privy Council that the doctrine of common employment was of doubtful application in India in view of the Nagpur case, probably, the results would have been different. After the decision of this case the Act has been amended.lxiii It is submitted even after the amendment.
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References:
Sinha B S Law of Torts (1964) pp 139-140; Kameshwar Rao, Law of negligence (1968) p 549. Gandhi B.M. law of torts (3rd ed. P 712.) ii AIR 1950 PC 22 iii 9 Allahabad Law Journal 173, 1912, 1356, 417 iv AIR 1933 sind 129 v History of English Law (2nd Ed.) vol. VIII, P 472. vi 3 salk. 234. Cited by Hodsworth ibid 475 note 4 vii Cited by Holdsworth, IBID above viii All. E R Rep. 449 ix Munkmans Employeers Liability (6th Ed.) x Ibid., P 480 xi 1842. 4 Met. 49 xii Ibid 220. xiii (1850) 5 Exch. 343 xiv (1858) 3 Macq., 266 (H2) cited by Munkman xv (1858) 3 Macq; 266 (H2) cited by Munkman, p 300 xvi (1868) LR 1 SC & Div 326 cited by Munkman xvii Ibid 34 quoted by Munkman, p12 xviii Ibid, 332 Quoted by Munkman p12 xix Webs, Sidney & Bentrice, The History of trade unions (2 nd ed.) 1950 impression p364, note 3. xx 62 QR p 471, see also Hobbs M.C Statutory Changes in Employers Liability 2 Har L.Rev. 221 xxi 5 LQR pp100-101. An analysis of the Employers Liability Act 1880 and its deficits Gates H.D. Employers Liability. Ibid p 179 xxii (1891) AC 325; (1891-4) Aii ER Rep. 69 xxiii Ibid 337 xxiv Ibid, Lord Watson p 357. xxv Ibid, pp 36 C. xxvi Ibid pp 362- 63 xxvii (1987) AC 371 xxviii Ibid Lord Hershell, 377 xxix Ibid 380. At. P382-383 Lord Watson states the rule there: in order to raise the exemption, there must not only be common employment but a common master. xxx Ibid 20. This test was laid down in the Petrol (1893) p. 320 and was followed in subsequent cases. xxxi Radcliffe v. Ribble motor service ltd. (1939) 1 All ER 637, p. 645 xxxii Ibid 658 xxxiii (1948) 2 All ER 796, 798-99 xxxiv For Eg: Johnson v. Lindsay & Co. (1891) AC 371, Per Lord Watson at 382; Comments of Lord Cranworthin Bartonshill coal co. ltd. Reid on sword v. Cameron, quoted by Lord Thankerton in (1937) 2 All ER 628, 633. xxxv (1937) 3 All ER 628 p 640 xxxvi Lochgally Iron & Coal co. ltd. (1934) ACI xxxvii Ibid 641 xxxviii (1898) 2QB 402 xxxix Munkman Ibid p23 xl (1904), Allahabad Law Journal 653 xli (1865) LR 1 QB 149 xlii Ibid 622-63 xliii (1912) 13 I C 417 xliv Ibid 418 xlv (1904) 1 ALJ 653
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xlvi
AIR 1933 Sind 129 Ibid 130 xlviii Ibid p362 xlix Ibid p 364 l Ibid p 365 li Ibid p 366 lii AIR 1938 Cal. 104 and in appeal to Privy Council. AIR 1940 p.v. 225 liii AIR 1940 PC 225 liv Report of the Royal Commission on Labour in India 1931, Jene.P314 lv (1868) L.R. I. Sc. & Div. 326 lvi (1858) 3. Macq, 266 lvii (1891) AC 325 p353 lviii (1973) 3 AIL E.R. 628 lix Section 3 (d) Defense of common employment barred in certain cases:- where personal injury is caused to overcome (a); (b); (c).; (d) by reason of any act or omission of any person in the service of the employer or in obedience to particular institution given by any person to whom the employer has delegated authority in that behalf or in the normal performance of his duties. lx AIR 1946 Lahore p 50 and in appeal to PC AIR 1950 PC 22. lxi AIR 1950 PC 22, 22-23 lxii AIR 1940 PC 225, 230 lxiii After the amendment section 3 (d) reads: (i) In the normal performance of the duties of that person: or (ii) In obedience to any rule or bye-law of the employment (not being a rule or bye-law which is required by or under any law for the time being in force to be approved by any authority and which has been approved) or (iii) In obedience to particular instruction given by any other person to whom the employer has delegated authority in that behalf;
xlvii
the main provisions of the Employers Liability Act of 1880 give injured workman the right to compensation when the accident was caused1. By some defect in the ways, machinery, or plant connected with or used in the employers business. 2. By negligence of a fellow servant exercising the duties of superintendence. 3. By a workmans obedience to orders or directions issued negligently by a fellow servant whom he was obliged to obey. 4. By act or omission of a fellow servant in obedience to rules, by-laws or particular instructions. 5. By the negligence of a fellow servant who had charge or control or any signal points, locomotive engine or train upon a railway. The act applied to all engaged in manual work, but not to seamen or domestic servant. Quoted from Willson and Levy Workmens Compensation (London, OUP, 1939) vol, 1, 57 (iv) The Royal Commission on Labour in India was clearly of the view that the doctrine should not be permitted to come up in India. (v) Observation of the Privy Council in Brockles Bank case should have guided the legislative draftsman to prepare a bill abolishing the doctrine not only in respect of a limited category of workmen, but altogether. (vi) The Royal Commission of Labour in India was clearly of the view that the doctrine should not be permitted to come up in India. (vii) The Privy Council in Brockles Bank case had remarked about importing the doctrine into Indian Law. However, no opinion was expressed as the case did not call for expressing any opinion on the doctrine. Even after Kaniz Fatimas Case, the legislature proposal was not for complete abolition of the doctrine but
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only in respect of workmen as defined therein. Words or otherwise in the definition may create pr oblems of interpretation. Should these words be read ejusdem generis so that the words by way of manual labour, clerical work are species of a genus or as some hold, those words cover all employees under an employer? The Workmens Compensation Act as also The Employees Act State Insurance Act are applicable to employees whose wages are within the limits specified therein. If the definition all workmen the question that may arise is whether the doctrine mentioned in the enactment could be pleaded as defenses in respect of the claims of other emplyees who are not workmen?
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THE ROLE OF LAW IN SOCIAL TRANSFORMATION

A. P. SINGH INTRODUCTION Everything changes except the rule of change. And the life of a nation or a socio-political system is not an exception to this rule. They are essentially dynamic, living and organic systems. The political, social and economic conditions change continuously. Social mores and ideals change from time to time creating new problems and altering the complexion of the old ones. This change is not essentially always in positive directions, there could always be changes which are not desirable and are essentially negative in character. The vicissitude of life process moves in strangest of ways. But does that mean that human agency just does not have a part to play in this process of change? Does the change process happen independent of the will of human agent? The way law and state have been organized during last two hundred odd years does not give that indication. The law in the broad sense and the whole legal system with its institutions, rules, procedures, remedies, is societys attempt through state to control this change process and give it a desired direction. This logic puts legal institutions and the state at the core of all social discipline. In theory the sovereign power, the ultimate, legal authority in a polity can legislate on any matter and can exercise control over any change process within the state. Indeed in a highly centralized political system, with advanced technology and communication apparatus, it is taken for granted that legal innovation can effect social change.i Roscoe Pound perceived the law as a tool for social engineering. Underlying this view is the assumption that social processes are susceptible to conscious human control and the instrument by means of which this controls is to be achieved is law. In such a formulation, law is a short term measure for a very complex aggregation of principles, norms ideas, rules, practices and agencies of legislation, administration, adjudication and enforcement, backed by political power and legitimacy. The complex law thus condensed into one term is abstracted from social context in which it exists and is
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spoken of as if it were an entity capable of controlling that context. Pospisil remarks that the law of western society traditionally is analyzed as an autonomous logically consistent legal system in which various rules are derived from more abstract norms.ii These norms are arranged in a sort of pyramid derived from a basic norm or sovereign will such an analysis presents a legal system as a logically consistent whole, devoid of internal contradictions whose individual norms gain validity from their logical relationship to the more abstract legal principles implied ultimately in the sovereigns will and in a basic norm. Needless to say that the legal systems in most Afro-Asian countries, which were colonies of the western systems until very recently, have been designed on these western paradigms with an understanding that whatever undesirable that they have in their systems in terms of outdated traditions, orthodoxies or social conventions that run against the western notions of rationalism, can be changed by way of the instrumentality of law. This paper is an attempt to understand the limitations of this legal mechanism in handling the change process of dynamic institutional systems like socio-cultural or politico-legal systems. What the paper seeks to aim at is an exposition of social phenomenon which has its own dynamic and any law that seeks to affect certain changes into it without taking into consideration the fundamental realities around is bound to result in failure. UNDERSTANDING THE LEGAL MECHANISM A very important point we have to understand is the role of politico-legal structures in the life of a nation. I would figuratively put it in a different format. Law, broadly understood can be talked of in two ways, lead law and lag law. Lead law is one where law determines the nature and direction of the goal towards which the system is to move. Lag law on the other hand would follow the social mechanism and would develop a rule to handle the emerging problem. We at the time of independence proceeded with an understanding that the indigenous model due to variety of reasons has become in-appropriate and is ridden with so much of social rot and therefore has to be given a new direction, the direction determined by the project of modernity. The project of modernity, the product of the western thinking has already maligned the indigenous thinking so much that the
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generation of political leaders proceeded on the assumptions of ushering into an era of modernity determined by western paradigm. A typical western thinking was typified by Henry Maines dismissive remark that much of Ancient Indias wisdom consisted of dotages of Brahmanical superstitions.iii This kind of an attitude towards ancient Indian traditions in law and justice represents the attempts made by the colonial administration to discredit the ideological foundations of Hindu hegemony of ideas. It would be interesting to learn how the so called disadvantaged groups in Indian society willingly accepted their position as part of the Dharmic order of things. Indias genius for accommodation can only be understood against the backdrop of this Dharmic order which holistically encompassed all of the society. This social system was not certainly the rigidified hierarchical structure as it has been presented to be, on the contrary, it was comparatively a dynamic order unparalleled in the contemporary societies and I proceed with an assumption that it still retains a lot of socio-political validity. LEAD LAW : THE INSTRUMENTALIST VISION Turning to the lead law lag law debate for the purpose of understanding the transforming social organism, one has to understand that lead law approach proceeds on the
instrumentalist vision of law, treats Law as an agency of power, an instrument of government, in so far as government is centralised in the state. It is seen as an independent agency of social control and social direction, autonomous and separate from the society it regulates. In this sense law acts upon society rather than is an aspect of society. It is considered to derive its effectiveness from its congruence with popular moves but from the concentration of political power, which the state represents. Major ages of social change and mobility almost always involve great use of law and litigation,iv writes Nisbet, but in modern societies laws capabilities have been seen as vastly greater than appeared to be in earlier eras. Putting of law into written form might be considered historically one of the first steps towards developing its potential as a precise instrument of government. Apart from this, accumulation of state power available for enforcement, professionalization of
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interpretation and application of legal doctrine, instrumentalisation of elaborate adjudicative processes, have helped in consolidating the instrumentalist role of law. This instrumentalist vision, considers that sovereign power, the ultimate authority in a polity can legislate on any matter and can exercise control over behaviour within the state. Indeed in a highly centralised political system with advanced technology and communication apparatus, it is taken for granted that legal innovation can effect social change.v Roscoe Pound, perceived law as an instrument of social engineering. Underlying this vision is the assumption that social processes are susceptible to conscious human control and the instrument by which this control is to be achieved is law. In such a formulation law is a short-term form of a very complex aggregation of principles, norms, ideals, rules practices and agencies of legislation, administration, adjudication and enforcement backed up by political power and legitimacy.vi LAG LAW : THE SOCIOLOGICAL VISION Lag law on the other hand relies on sociological vision of law, and looks at the capacity of law as an instrument of social control, as severely limited by emphasizing upon the fact that if the legal rules are not in congruence with social mores they are not only in-effective, but are doomed to stultification almost at birth, doomed by the over ambitions of the legislator. Law is vital, writes Nisbet, but when every relationship in society becomes potentially legal relationship expressed in adversarial fashion the very juice of social bond dries up, and the social impulse atrophies.vii For Habermass law is a support, protection and stabilizing structure of life world, within which values motivations and initiatives of individuals are born and nurtured. But as a directing instrument or medium it threatens to crush through violent abstraction the moral subtleties, local meanings and diversity of individual life.viii Legal consciousness studies with the declared opposition to the predominant position of prevalence of institutional viewpoint and public policy bias in law, emphasizes at the constitutive theory of social action, pointing its attack on the instrumentalist vision of law, what Mc Cann says countering the lead law approach with a bottom up jurisprudence ix. According to Evick and Silby, the ways in which the law is experienced and understood by
ordinary citizens as they choose to invoke law, to avoid it, or to resist it, is an essential part of Law. The attention of the investigator is directed towards these every day concrete social practices in which legal rules are perceived as constitutive elements of the reality. This emphasis on the routine instead of exceptional, on the social in place of institutional, on mental representations in place of coercive legal system is the common elements in this change of opticx from lead law to lag law. UNDERSTANDING INDIAN PARADIGM We know India is a huge country, with huger complexities. A thousand million plus population, spread over 3.28 million sq km of landmass, with every kind of an imaginable weather pattern from minus 40 degree Celsius in the greater Himalayan region to 50 plus degree Celsius temperature in the deserts of Rajasthan, 16 well demarcated agro-climatic zones, 18 official languages written in 15 different scripts, around 2000 dialects and almost all religions of the world well and adequately represented. The variety of India is mindboggling. Jawaharlal Nehru called India the museum of world religions.xi India has a hoary past and a very vibrant and continuous culture of more than 5000 years of recorded history. But this is only one side of the picture. It has its bleak side as well. 1000 years of colonialism broke Indias economy and its socio-legal structure as well. Queen Elizabeths charter of 1600, authorizing East India Company to trade in the countries of the east and consequent colonization of the land called India (Bharat) marked a complete break with the past in terms of socio-legal structures. A new kind of a system was sought to be introduced and adjustments carried on for 350 years. In mid 20th century India finally broke off the shackles of the colonialism launching itself on the path of Republicanism, liberal democracy and secular state system. Medieval India under Muslim domination witnessed its social institutions getting distorted and British colonialism broke it economically. In the mid 19th century when freedom struggle in the wake of what may be called the Indian renaissance started, it sought to not only stop the economic exploitation of the country by seeking political reforms but also sought to reform the social structure of the country from within. Indian social system, at
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this point of time was beset with a number of social evils. Caste system, untouchability, child marriages, widow burning, veil system discrimination against women were some of the most visible problems distorting the face of Indian social system. Caste system was the outgrowth of the Varna system or what may be called the classificatory principles which were scientifically designed principles of social organization. Without going into the polemical aspects of Varna system, I rely on Prof PV Kane,xii in stating that Varna System was based on occupation rather than on birth and that there was both horizontal and vertical mobility available within this system. Widow burning and child marriages had their history in medieval wars, when the men-folk used to die fighting in the battlefield, the widows used to burn themselves for the purpose of saving themselves from falling into the hands of the enemy and get violated. In the later years these practices assumed the form of an orthodoxy and social evil. FACING THE POST-INDEPENDENCE CHALLENGES In 1947, when India finally broke off the shackles of colonialism, the challenges facing the country were enormous. For a legal professional it was a maze of imponderables, a mix of customary law, case law, and some assorted enactments. The social system was equally confused, beset with intractable social evils like caste system, unsociability, discrimination against women, child marriages and dowry system etc. The partition of the country and a senseless violence in its wake had left deep scars on the social psyche and deep suspicions amongst the people banking on divisions were so evident. Thus the challenges for those who were at the helm of affairs were enormous. Modern law, which has come to be recognized a technical instrument of rational governance, freed from its traditional roots in culture and communal values and moral contents was the option. It served a modern urge to remake the world grounded in the discovery of that worlds contingent and changeable character. This law appeared morally and intellectually autonomous both in the sense of its distinctiveness as a governmental tool and its superiority over and independence from other competing normative systems. It also seemed comprehensive as it could be used to cover all contingencies and provide man made solutions to all problems of order; unified and
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systematic as a body of doctrines linked by its formal rational qualities; a structure of human reason, subduing chaos and contingency and principled as a consistent expression of essential conditions of human life.xiii LEAD LAW : THE IDEAL OPTION? With the above ideal view of law in mind the founding fathers of Indias new destiny went on framing a constitution, which was to be the embodiment of all that is rational and modern. Justice, liberty, equality were given the pride of place as the basic organizing principles of the new constitution, caste system and untouchability which were considered the main stumbling blocks in the achievement of social solidarity were now intended to be done away with. Preamble of the Constitution provided the blueprint of the ideals, We the People of India, having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic, republic and to provide to all justice, social, economic and political, equality of status and opportunity, liberty of thought, expression, faith, belief and worship .Enact and give to ourselves this Constitution.xiv Article 14 of the Constitution of India, guarantees equality, The state shall not deny to any person, the equality before law, or equal protection of laws within the territories of India.xv This article provides two different types of rights, first, equality before law irrespective of ones caste, creed, race, religion, sex, place of birth etc and second equal protection of laws, meaning thereby that if there are inequalities existing in the socio-legal system, the law, shall take care of them and shall try to change circumstances by way of protective discrimination in such a way that everybody is treated equally and has the guarantee of a right to equality of respect and concern in the design of political institutionsxvi. The underlying idea of article 14 is that there is nothing as unequal as the equal treatment of unequals. xvii And therefore to treat every citizen equally, who are found to be circumstanced unequally the state can resort to equalizing means to protective discrimination. Article 15 provided a further guarantee against discrimination only on the basis of caste, class, religion, sex, place of birth or any of them. However it also provided that special provision could be made in favour of women and children and socially and educationally
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backward classes. Thus the members of scheduled caste and scheduled tribes could be provided with protective umbrella in various sectors of social life, including admissions in educational institutions. Article 16 went a step ahead and provided another guarantee of equality of opportunity in matters of public services or offices under the government. It further provided that special provisions in government and public services could be provided to scheduled caste and scheduled tribes candidates. Article 16 (4) provided, nothing in this article shall prevent the state from making any provisions for reservation for appointments or posts in favour of any backward class of citizens which in the opinion of the state is not adequately represented in the services under the state. Article 17 of the constitution abolished Untouchability and made it an offence to treat anybody as untouchables.xviii A brief overview of equality provisions under Indian constitution would make it clear that the social evil of caste system and resulting deprivation of whole class of people weighed heavily in the minds of the framers of the Indian constitution and they sought to introduce not only the measures that would remove the caste disabilities from the Indian social scene, but also sought to provide compensatory measures for these deprived and less privileged sections of society, so that they could compete with the rest of the world on an equal footing. Under these provisions special provisions were made for peoples belonging to scheduled caste and scheduled tribes under which they are nowadays provided 22 percent reservations under government services. In fact in some states in India like Tamil Nadu, and Karnataka, the ratio of reservations of jobs in government services is as high as 69 percent. Another kind of a protective measure provided to scheduled caste and scheduled tribes is the special representations in Parliament and state legislatures under article 334 of the constitution. Initially this particular provision was supposed to be a kind of transitory provision, to remain in force for 10 years. But this has been successively extended by way of constitutional amendments decade after decade. The last such amendment was made in the year 2009, extending it up-to 2020xix. LAG LAW REALITY OF SOCIAL ORDER : MEETING THE C ONTRADICTIONS.
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Now this system of legal instrumentalism by way of providing lead law rules, was expected to wipe out not only the caste system from the face of Indian social system but also to uplift the deprived sections of the society from the morass of underdevelopment, putting them on the equal footing with other sections of Indian socio-political system. This equality and solidarity amongst citizens was to be the fundamental conception of the political order in India. But the lead law model did not work the way, it was expected to. The reasons are not difficult to find. There were certain fundamental contradictions in the very approach. First of all, the very idea of law working as an instrument of social reform has its own limitations. Social phenomenon has its own dynamic and any law that seeks to affect certain changes into it without taking into consideration the fundamental realities around is bound to result in failure. Sumner, xxtalks about the folkways and mores of life, which change gradually as the conditions of life change. There is little scope for changing them fundamentally through any conscious act of legislation. Legislation has to seek standing ground on the existing mores and legislation to be strong must be consistent with the mores. Any law that deliberately separates itself from the mores and values weakens its social base and authority to the similar extent. Law, philosophy, religions and morality have no independent existence, but are various reflections of social dynamic. They are deeply rooted in the process of social development, yet virtually powerless to alter them. Philosophy and ethics too are products of mores and philosophy attempts the impossible when it tries to construe absolutes from the accidents of experience, which shape the mores xxi. For Savignyxxii too, law is an expression, one of the most important expressions together with language is the spirit of the people (Volksgeist). This mystical idea of law implies that law is much more than a collection of rules or judicial precedents. It reflects and expressed a whole cultural outlook. This does not mean that Savigny did not recognize the importance of legislation. Legislation is important, first to remove doubts and uncertainties in evolving law and secondly to enact settled customary law, but not in the manner of code which denies the evolutionary nature of law by setting out fixed final and comprehensive
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principles. Law looses its base and authority as it moves away, becomes detached and remote, loosing roots in the community life, ceasing to be a part of common consciousness of the people. But the question is what to do with the inhuman practices of the community life, which not only do not fit in any way with the modern liberal ideas of democratic life, but are also degrading of human life? Should such practices be tolerated in the name of common consciousness of the people? It has been noted above that Indian renaissance had witnessed a whole array of social reform movements. They were basically two streams of reformers. People like Mr. Sharda, Jyotiba Phule, and Agarkar, were in favour of using the instrument of law for affecting social change and as they not only attempted to reform the system from within but also lobbied British colonial administration to enact legislations for affecting social reforms. xxiiiThus they had enactments like widow Remarriages Act, Sati Abolition act etc. This tradition of using law for affecting social reform continued even in the post independence period and Civil Rights Protection Act 1955 (prohibiting practice of Untouchability) Dowry prohibition Act, 1960, Child Marriage Prohibition Act 1961, and another Sati Prohibition Act in 1987. But what was the impact of it? Any impartial observer of Indian social scene would testify that this lead law approach of affecting social reform by using the instrumentality of law has not succeeded. Dowry by and large has spread more than it was in pre-1960 period and has turned out to be some kind of status symbol. Child marriages are still performed in plenty within the full knowledge and view of state machinery,xxiv traces of caste system still seen and practiced in many parts of the country and Roop Kanwar Sati act is not a matter of too distant past. This clearly shows that the lead law approach of law has not really worked in India. What has, however happened is that either the legislation has been observed in its complete violation in full view of the administration or it has made the practices at which the legislation aims more covert and harder to detect. It may be noted that right since 19th century, there was seen another stream of social reformers which wanted the things to be done other way round i.e. by way of following the
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lag law approach. Bal Gangadhar Tilak, Gopal Krishan Gokhale, and Mahatma Gandhi, were some of the more prominent figures who represented this stream.
xxv
They were
conscious of the fact that political reforms without social reform were not going to be of any avail, however they wanted those reforms to come from within and not be thrust from outside upon the people. They therefore made it a mission of their lives to rouse the people from slumber and awaken them to the past glory of India. Bal Gangadhar Tilak who was the political guru of Mahatma Gandhi, was convinced that education could play an important role in this regard and therefore with the cooperation of Agarkar and Chiplunkar he started some English schools in Poona and also had a long stunt with the press publishing Kesari and Maratha to educate the people.xxvi But somehow the traditions of these leaders could not be continued in post-independence period, a kind of nave belief prospered that social change could be brought about by enacting laws from the top and no account was taken of the ground realities. CHALLENGES OF SOCIAL REFORMS AND THE LIMITATIONS OF LAW. The question still remain unanswered, what to do with the social evils like caste? Madhu Kishwar,xxvii is of the opinion that even though, survival of kinship and community loyalties has some negative fallout, the existence of strong community ties provide for relatively greater stability and dignity to the individual, than they have as atomized individuals. This in part explains why the Indian poor, retains a strong sense of self-respect. It is that selfrespect which the thoughtless insistence of egalitarianism destroys. The support system provided by kinship ties still provide greater social security than combined effect of all schemes that successive socialist governments have introduced to help the poor. Mark Tullyxxviii writes, one way to discredit a system is to highlight its excesses and caste system has many, what continuous denigration of caste system has done is to add to the sense of inferiority that many Indians feel about their own culture. It could lead to greater respect for Indias culture and even better understanding of it, if it were to be recognized that caste system has not been totally static, that it is adapting itself to todays circumstances and that this has positive as well as negative aspects. Caste system provides security and community
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to millions of Indians. It gives them an identity that neither western science nor western thought has provided, because caste system is not merely a matter of being Brahman or
Harijan. It is also a kinship system. The system provides a wider support group than family.
This brief account shows that legislatures in India, in their enthuse of using lead law approach to affect reform in India has not worked well. There can be no gainsaying of the fact that social evils like caste system have got to be wiped out, at least humanized if possible, but that is possible if the behavioural patterns of the people, deeply embedded in customs and traditions is properly understood and proper help provided to them so that they may cop up with the modern realities of life, rather than changes thrust down from above. Roscoe pound put it this way, for many reasons, including problems of proof, law cannot attempt to control attitudes and beliefs but only observable behaviour. xxix For Teubner, the primary problem in laws pathological effects is bureaucratizing social relations and moral environment and misinterpreting and so creating disruption in contexts previously regulated by extra legal norms.. law can be effective but they must take into consideration the context which was previously regulated by extra legal norms. Law can be effective but this effect may be to create uncertainty, chaos, distrust or hostility rather than to regulate properly.xxx And this is precisely what has been done by the lead law approach of law-making in Indias Social environment. A High Court judgment xxxi has put it beautifully, albeit in a different context, bringing constitutional law and legal norms into such matters, is like bringing a bull into the Chinashop. What is necessary therefore is to quote Teubner again, To find appropriate relationship between law and other normative orders to prevent this. There have been substantial numbers of studies about the main factors that make social control through law effective. For example Yehzkel Dror distinguishes between direct and indirect uses of law in promoting change, Dror accepts that seeking social change through lead law approach is fraught with danger, but he emphasizes that law can and does play an important, albeit indirect role in fostering social change in many ways. First it can shape various social institutions, which in turn have a direct influence on the rate or character of
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social change. For example law structuring a national education system and providing for a national curriculum for schools influence the scope and character of educational institutions, which may help in affecting social change. Secondly law provides institutional framework for agencies specifically set up to exert influence change. Thus for example setting up boards, agencies of various kinds may be resorted to charged with promoting particular policy goals and finally creation of legal duties to establish situations in which change is fostered. American sociologist, William M Evans,xxxii writing in the light of American experiences, shortlists some basic conditions, which may provide a framework of such a system of rules that may lead to social change. First source of new law must be authoritative and prestigious. Secondly the rationale of the new law must be expressed in terms of compatible and continuity with established cultural and legal principles. Law in fact can be powerful force for change, when the change derives from a principle deeply embedded in our heritage. Thirdly pragmatic models of compliance must be identified. The underlying idea of this condition is that law must not appear utopian but practical in its aims. Another important condition that Evans talks of is the element of time in legislative action. But this condition appears to be rather unenlightening answer to a complex question. The appropriate timing and strategy depends on the extent and complexity of change that law seeks to bring about. CONCLUSION The above analysis of an Indian paradigm case of trying to affect social change by a way of lead law should make it clear that in the final analysis the law can not be seen abstracted from the social reality. Effectiveness of law in the ultimate sense must derive from the law as an instrument of social change working in tandem with social and cultural life of the people. This is what has wanted throughout the post-independence phase in India. There is no gainsaying of the fact that transformation of social system according to the need of the times and in accordance with the modes and mores of the people is a matter of necessity. However, this would require coordination of variety of efforts being made by researchers all
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across the country for providing an alternative policy frame. At the same time one has to keep on experimenting with the supposedly indigenous models, for which, I have put earlier, enough of scope is available at the grass-root level.
We must lay our site at the vibrant civil society that exists in India, and also the structures in terms of Panchayati Raj Institutions which can be used by social entrepreneurs and civil society organizations to make effective interventions and meaningful contributions in the process of governance. We have a very encouraging social terrain, with vigilant public opinion, vigorous press and vibrant non-governmental organization sector, which can be used for making new experiments of laws in the governance process at the grass-root level. We also have unutilized and under-utilized potential of millions of youth which can be used for making effective improvements in the developmental administration. However, what we lack is the political will to make use of opportunities available. What is needed is a kind of new dynamic of developmental politics to grow in the country and there we have the challenge well chalked out for willing social entrepreneurs to make use of and conduct experiment in the supposed models of indigenous law. What would be the shape of such experimentation is something which would require another full-fledged research paper. The only thing that can be kept in mind is there is a scope available and there is also a need for conducting experiments at the grass-root level of our political process in trying to balance the lead law and lag law approaches in the process of transformation of the social organism. This balancing between instrumentality of law and the folk ways and mores of the people or between lead law and lag law would really pave the way for real justice in action preparing the fundamental conception of a long lasting political order in India. References:
Sally Falk Moore, Law as a Process : An Anthropological approach, 1993, Routeledge and Kegal Paul, London. Quoted by Norbert Rouland, in Legal Anthropology, 1994, Athlone press London. iii S. S. Dhavan, Indian Jurisprudence and the Theory of State in Ancient India, Mussorie, National Academy of Administration, Printed Lectures, 1962 iv As quoted in Roger Cotterrels Sociology of Law: An Introduction, Butterworths, 1992.
ii
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Sally Falk Moore, Law as a process, (1993) Routeledge and Kegan Paul, London. Sally Falk Moore, supra, f.n. 1 vii Roger Cotterrel, supra, f.n. 4 viii Legitimation crisis, Heinemann, London, 1976 ix As quoted in Maurice Garcia, Villegas, symbolic Power without symbolic violence? Critical comments on Legal Consciousness Studies in USA, Droit a Societe, no-53/2003
vi x xi
Ibid.
Discovery of India, Jawaharlal Nehru, Oxford University Press, 1976 History of Dharmashastras, Prof. P V Kane, Bhandarkar Research Institute, Pune, 1968 xiii Rogger Cotterrel, op.cit.f.n. 4 xiv Preamble to Constitution of India, 1950, (The Constitution of India, was adopted on 26th November, 1949 and came into force, on 26th January, 1950 xv Article 14, Constitution of India, 1950 xvi Constitutional Law of India, V. N. Shukla, Eastern Book Company, Lucknow, 2000 xvii Indian Constitution, H.M. Sheervai, N.M. Tripathi, Bombay, 1993. xviii Civil Rights Protection Act of 1956 was passed to reinforce the declaration made in Article 17 of Indian Constitution, which made Untouchability a penal offence. Glanville Austin in his celebrated work Indian Constitution, the cornerstone of Nation has written in this context, that Indian constitution is more of a social than political document. xix 95th Constitutional Amendment, 2009 xx As quoted in Roger Cotterrel, supra f.n.1
xii xxi xxii
Ibid.
As quoted in Roger Cotterrel, supra f.n.4 Freedom Struggle, Bipan Chandra, Oxford University Press, 1990 xxiv There is an auspicious day, called Akha-teej which is the third day of Vaisakh month according to Hindu calendar, (Vikram Samvat). On this particular day many child marriages are celebrated in full knowledge of the administration. xxv Freedom Struggle, Bipan Chandra, Oxford University Press, 1990
xxiii xxvi xxvii
Supra f.n. 22
Madhu Kishwar, Seminar, 1989 There are no full Stops in India, Mark Tully, Penguine books, 1992 xxix Roscoe Pound, as quoted in Roger Cotterrel, supra f.n. 4 xxx G. Teubner, as quoted in Roger Cotterrel, supra f.n. 4 xxxi Harvindar Kaur v. Harminder Kaur, AIR, 1984, Del 66 xxxii As quoted by G. S. Sharma, in Law and Social Change, 1971, Indian Social Science Research, New Delhi.
xxviii
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NIPTARA COURTS: CRITIQUE OF OFFICIAL

DISCOURSE ON ACCESS TO JUSTICE
ANU CHOUDHURY INTRODUCTION
No person shall be deprived of his life or personal liberty except according to procedure established by law.
- Article 21, Constitution of India Article 21 enshrines one of the fundamental rights guaranteed by the Constitution of India to its citizens. It bestows on every citizen one of the most basic human rights: the right to life and personal liberty. The Supreme Court of India has widened the scope of this article by interpreting it to include rights of prisoners, the right to speedy trial, the right to legal aid, and the right to claim compensation for the violations of rights under Article21. The landmark judgment with regard to prisoners/ undertrials came in 1979 when the Supreme Court came to the rescue of the undertrials languishing in the jail in Bihar awaiting trial. This landmark judgment {Hussainara Khatoon v Home Secretary, Bihar, (1979)} gave a new interpretation of Article 21 (right to life and liberty) to include right to speedy trial in it. In the judgment delivered by Justice Bhagwati on behalf of Justices Bhagwati and Koshal, the former expressed shock on the state of affairs in the jails and talked of the human rights of those who are incarcerated in prisons for long awaiting trial. He urged for revamping and restructuring of the legal and judicial system so that injustices do not happen. This landmark judgment is of great importance for the criminal legal system and the poor who come in contact with it. This particular case not only led to the recognition of one of the important right of speedy trial but it also brought to light the sorry state of affairs of prisons and legal aid in the country. However, as we will see, there is still a long way to
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cover to fully realize the right to speedy trial. To date it is not uncommon to find prisoners either awaiting trial or under trials involved in petty offences languishing in jails for much longer durations. The state, time and again, has tried to enlarge the scope of legal and judicial remedies to its citizens and has initiated access to justice programmes. In fact, the quest for this goal had started right after the independence. Lately there seems to be a shift towards alternative dispute resolution forums to provide access to justice to the large population of this country towards which I now turn my focus. In order to build the argument this paper is divided into five heads. The following section deals with access to justice initiatives and its critiques in India. The second section focuses on the special courts in Tihar and discusses the process of conducting special courts. While third and fourth sections are devoted to critique the construct of these courts as reform measure. The paper concludes by highlighting the pervasive niptara attitude of these courts. ACCESS TO J USTICE AND LEGAL REFORMS IN INDIA Moog (2002) holds that there are two possible ways to improve access to justice: first includes reform of the formal legal system (FLS); while second includes formulation of alternatives to the FLS. And India, according to him, has been fairly active in creating alternatives to the FLS. He writes that, attempts at state sponsored ADR have ranged from the less formal nyaya panchayats, lok adalats, and court conciliation, to more formal tribunals (2002: 4). The necessity for such alternatives has always been justified by lamenting huge judicial delay and mounting court arrears (Schackelford 2007; Sinha 2008). Moog (1993) makes a very strong argument regarding the direction of reforms based on the false notions of litigation explosion. He cautions that such wrong assumptions are likely to direct the efforts of policymakers towards misguided solutions. This is indicative of the prevalence of a gap between the official discourse on legal and judicial reforms and the practice of such reforms. The existing literature, which talks of the debates around alternatives to FLS as a way to assure the poor access to justice, also throws up contrary pictures of law. It is believed by various scholars including Galanter, Moog, Marshall and others that the
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efforts of the legal community is not towards addressing the problems that plague regular court system and remedy them, rather the energies are shifted towards creating alternatives. This shift has been called bypassing strategy by Galanter and Krishnan, whose work on lok adalats as new arrival on access to justice scenario in India, best exemplifies the gap between official discourse and practice of judicial reforms. They called lok adalats an illustration of debased informalism as they are commended not by the virtues of the alternative process but by avoidance of the torments of the formal institutional process (2004: 809). On the basis of their findings on lok adalats they assert that the quality of justice dispensed through the means of lok adalats falls seriously short of the aspirations of access to justice proponents (2004). Special courts follow the pattern of lok adalats and hence Galanter and Krishnans work is important to understand the intricacies of such courts. SPECIAL COURTS IN TIHAR Apart from being the largest prison in South Asia, Tihar is one of the prisons all over the world where reform programmes are run by the state. It claims to be in accordance with the correctional programmes which are going on in other parts of the world. Tihar prison boasts of, among other facilities, holding of special courts for the confessing under trials. Prison administration also highlights this as one of the reformation practice as well. The prison population has almost 82 per cent under trials. Till the end of 2011, 130 special courts were held in which 5127 cases of petty offenders were disposed off. This figure seems to reassert the dichotomy between access to justice and access to justice. The total population of Tihar as on 30th April 2009 is 11,738way beyond its total capacity of 6250. The under trials comprise of more than 80% of the entire population. This population is the primary target of this paper. Special courts came into being due to the concern of the former Chief Justice of India and former Chairman, National Commission of Human Rights, Honble Justice A.S. Anand. He expressed great concern over the plight of increasing number of under trials languishing in
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various jails of the country awaiting trial. He wrote letter to all the Chief Justices of High Courts across the country to make arrangements for the establishment of Special Courts in their respective states through Chief Metropolitan Magistrates of Chief Judicial Magistrates of the area in which a district falls. In the context of his letter, the Delhi High Court defined the purview of petty offences. For special courts, petty offences came to be defined as the (i) minor offences where the gravity of the offence is less and the punishment is not going to be very severe; or (ii) the offences in which the prisoners are involved being first offenders may be entitled to benefit of probation; or (iii) may be let off by the courts on payment of fine only; (iv) the maximum sentence do not exceed three years; (v) he has already undergone two months of incarceration. The document related to special courts highlights the fact that the reform measure of special courts is only for confessing under trial prisoners who wish to confess their crime. On the insistence of Honble Justice A.S. Anand, the High Court of Delhi directed the Chief Metropolitan Magistrate of Delhi to hold special courts in the Tihar Prisons. The first such court in Tihar was held on 13th May 2000. In 2007, a legal aid and counselling centre was opened at Tihar Court Complex. I was told that prior to 20th July 2007, special courts were held in one of the nine central jails. Now, special courts are held at Tihar Court Complex, which is constructed near the prison headquarters. The legal aid cell is also situated in the court complex. Nowadays, such courts are held on every third Saturday of the month in Tihar. They are organized by the jail authorities in close association with DLSA and Chief Metropolitan Magistrate (CMM) office at Tis Hazari Court, Delhi. The CMM office deputes the Metropolitan Magistrate who is to preside over the hearing of the cases at Tihar and also deputes assistant public prosecutor. The office also assigns a legal aid counsellor to represent the prisoners. According to the prison administration, the jail authorities play a significant role in
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conducting such courts as they prepare the list of those prisoners who wish to confess their guilt before the metropolitan magistrate. The list of such prisoners is then submitted to the Law Officer who scrutinizes the list and forwards it to the DCP (Crime) Branch. This Branch is responsible for the verification of the records of the accused applying for the special courts. To ascertain that the accused is not having any previous record of involvement in criminal activities, fingerprints are taken by the hawaldars. For this purpose, bio-metric identification system was also introduced in Tihar in 2007, whereby the photographs and biometric fingerprints of all the inmates are recorded in computers to identify and to separate habitual offenders from the first time offenders. When the names of prisoners are cleared by the fingerprint bureau/crime branch then the report is sent to the office of CMM Tis Hazari, Delhi. This office of CMM then summons the concerned case files from those courts where the trials are pending. Thereafter a Metropolitan Magistrate is deputed to hold the court at Tihar Court Complex. Accordingly other arrangements are made by the jail staff. According to the untitled document related to special courts, the under trials are produced before a metropolitan magistrate in the presence of a public prosecutor and the legal aid counsellor. The latter serves to represent the under trials. It is claimed by the document that the under trials are given the liberty to confess their crimes and no pressure is exerted on them to admit their guilt. Further, they are given the liberty to retract from their confession if they feel that the sentence proposed against them is excessive. During my fieldwork I was also told by the jail staff that the under trials are made to understand the repercussions of the judicial conviction. Even the legal aid counsellor who represented the prisoners during the course of my fieldwork in Tihar also claimed that he makes the under trials aware about the opportunity of availing the facility of special courts and its pros and cons. Also the documents related to such courts of the prison authorities claim that the concept of having such courts have been immensely popular amongst the under trials in Tihar as large number of these under trials are coming forward to confess their guilt in lieu of early release.
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However, reality seems to be different. The manner in which the jail document describes the special courts and its functioning differs remarkably in the actual hearing of such courts. It is important to flag here Usha Ramanathans (2007) work on Special Courts in Tihar Prisons. She observes that such court improves the statistics related to rate of conviction at the stake of poor. She writes:
The criminal law was amended in 2005, and plea bargaining has been provided as an option since January 2006. But, pre-dating this amendment by a few years, on orders from the Delhi High Court, under trial prisoners accused of petty crimes (which includes being picked up while lurking in the vicinity of the railway station with the intent to commit theft, bootlegging, being found in the possession of a knife) who had spent two months or more in prison were given the option of confessing to the crime of which they had been accused and being let off in finite time, or professing innocence, and staying in the prison till the case is decided in the regular course. One who has watched how this procedure works would not be sanguine about validating plea bargaining. But this is true: that such processes are likely to improve the statistics on conviction rate, and to act as a valve to let off unimportant under trials from an overcrowded prison. (2007: 22)
Thus, she presents her argument against the introduction of formal plea bargaining as the pre-dating system ceases to consider unimportant undertrials legal subject worthy of procedural and substantive law. In the light of her remarks let us analyse special courts as part of official discourse on judicial reforms. JUDICIAL REFORM OR NIPTARA?
This is not a courtit is just meant for disposing off cases and increasing the numerical strength of disposed cases.
The above mentioned quote reflects that the special courts are a bypassing strategy which works for increasing the rate of disposal by the judiciary and hence presents a picture of official efforts in reforming the judicial system. It is also touted as increasing the access to justice to the poor. However, the manner in which the courts function raise doubts
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regarding the access and justice for the poor. This court is believed to be set up to dispose off the casesniptane ke liye. No evidence is sought, no contestations are done. Moreover, the court is designed for the confessing prisoners, but even though confessions are recorded in the official documents, they are hardly heard. Tacit ways are used to create the official category of confessing prisoners ready to confess their crime before the metropolitan magistrate. Most of the undertrials are drawn to the web of special courts on the promise of early release. In a way they are educated by the jail staff and the visiting legal aid advocates to apply for the courts and they are expected not to be too educated so as to reveal the truth behind their confessions. Their voices then are aberration than a norm. I attended five such courts during 2008-09. Most of the time it is difficult to understand what is happening near the podium as it depends on the loudness of the voice of the presiding metropolitan magistrate and ones position in the courtroom. I was not assigned any particular seat or chair and most of the time it depended on the convenience of the assistant superintendent who used to provide me the cause list for the day. Files related to the accused are kept in order of the cause-list prepared by the staff of metropolitan magistrate and undertrials are brought to the court in that order. A hawaldar fetches two prisoners at a time holding their hands in his hands. Usually, four to five hawaldars are assigned the task of fetching the prisoners from the cell in Tihar Court Complex. On an average some 30-35 cases are taken up in the court. The MM usually announces the name of the undertrial and asks the jail officials about the time period for which the accused has been in the jail. Jail officials often ask the prisoners about his period of incarceration and tally it with the jail warrant. Legal aid counselor also keeps the copy of the period of incarceration so at times he confirms the time period of the incarceration. If it is over two months and the case is related to theft or bootlegging, then generally the accused is set free on the period undergone. The chakku cases, i.e., cases related to section 25/54/59 of arms act are also disposed off in the similar manner. The proceeding of the Special court is similar to the description by Galanter and Krishnan (2004). They maintain that the criminal lok adalats are dispute settlement bodies in name
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only as they just facilitate signing off on pre-arranged settlements agreed upon by the state and the accused. Even in the manner in which the disposing off cases take place is also similar. Krishnan had noted in his fieldwork on criminal lok adalat that the accused is escorted by the police officer to the judges office. A clerk then provides the judge the file of the accused. This file contains the plea agreement reached between the state and the accused. The judge then signs off on the matter and the case is settled. This niptara attitude is prevalent to the extent that once the judge was extending the period of incarceration of the undertrials rather than releasing them on the basis of period undergone, then the legal aid counselor who often remains dormant in the court told the judge that the purpose of the court is to dispose off the cases as this has been happening since the time of its inception. Though nobody was sure about the genesis of the provision of the two months period, nevertheless, it was told to the judge that if the prisoner has already spent two months or more in the jail then it is in the power of the court to dispose off the case as and when it comes before it. On hearing this, presiding MM went to his chamber and called the public prosecutor and the legal aid counselor in to reflect on such courts. Later, the appeal of the legal aid counselor was considered laudable by the jail staff who later commended this effort of his over the lunch. In special courts also it depends on the MM whether to ascertain from the undertrials about the voluntary nature of their applications for the confession of crime or not. Out of five courts which I attended only one MM took time to ask most of the undertrials about their cases and the charges for which they were inside the jail. Otherwise the court proceedings look more like mere signing off the metropolitan magistrate who usually consult public prosecutor, for the day, to decide the quantum of punishment. The bar of two months is upheld for applying to the special courts, and hence, most of the prisoners are freed on the basis of period undergone. One of the assistant public prosecutors told me that these courts work for the niptara of such cases. This niptara is to help the jail authorities to decongest the jails and to boast about reforms in administrative and judicial circles by showing the greater number of disposal by the means of special courts.
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The judiciary also applauds the success of these courts as a means to not only decongest overcrowded jails but also decreasing the case loads of the regular courts and thereby easing some of the overflowing dockets. It indicates towards the issues related to the official discourse of reforms and bureaucratic practices. Target setting is one of the important practices that takes place in Tihar on regular basis. I found out during my fieldwork that the legal aid counselor often consulted assistant superintendent responsible for holding special courts for setting monthly target of number of cases to be sent for special courts. Thus, the numerical narratives in the case of special courts can be viewed as creating a picture of successful reform measure to decongest regular courts and to impart speedy justice. NUMERICAL NARRATIVES: NIPTARA AS A TECHNIQUE The niptara attitude seems to have seeped in the very system of the special courts as they have come to be seen as a mere mechanism of disposing off cases. The substantive aspect of law does not seem to find any place in this scheme then. The success of these courts is rated with the number of cases they settle. The undertrials whose applications are sent for special courts invariably hail from the poor socio-economic strata of our society. Many of them are migrants from Uttar Pradesh and Bihar and they do not have anyone known in Delhi for furnishing of the bails. Amidst this scenario it seems that poor are being targeted for the socalled judicial reforms and the effective and efficient performance of judiciary is achieved at the cost of criminalizing the poor and indigent who do not have adequate resources to represent their case. Often cases which get redirected to the concerned courts become the matter of disappointment for both the jail staff and the legal aid advocateas their efforts are always geared towards achieving the higher number possible. In a special court sitting in October 2008, out of 37 cases, 5 cases were again sent to the concerned courts. The MM happened to ask these undertrials the crime for which they were incarcerated. Out of these five cases one was related to Arms Act. The accused was found in possession of a knife. The presiding MM asked him if he admits his crime or not. The accused replied in affirmative. On hearing the accused the MM asked him, galati kis cheez ki maan rahe ho?; What have you done? What
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is your crime? The accused could not reply about the crime for which he was ready to confess to avail the facility of special court. His case was then sent to the concerned court. In yet another case the accused pick pocket replied that if the MM was ready to release him, he was ready to admit his crime. Another accused told the MM that it was out of majboori (compulsion) that he had agreed to confess his crime. The officials of jail and the legal aid advocate react sharply towards such prisoners. They held that it was due to their own bewakoofi (foolishness) that they could not avail the golden opportunity provided to them. They believe such undertrials are not only troublesome for their own self but also spell danger for these officials. According to them these undertrials are foolish and incapable of understanding their own interest. They spend a lot of their energy in
convincing the undertrials about the benefits of availing the route of special courts yet, as one of the assistant superintendent had put it, they commit blunders before the judge by not admitting their crimes and end up reducing the output of the court. These prisoners are considered jyada padha likha sarcastically. This point to the way the speech act s are performed inside the courtroom and the result that such acts produce. Precisely due to this reason it is desired by the staff that the interaction between the presiding MM and prisoners be minimal and because of this it is not hard to find them reiterating and thus, asserting that, these courts are to dispose off cases and not for hearing themwhat good it would serve, rather it is going to take longer time to dispose off if it does so. The entire interaction becomes important and because of this, it is my contention that the jail staff try to control the interaction in the courtroom. CONCLUSION By way of conclusion, what Galanter and Krishnan (2002; 2004) point out regarding the employment of bypassing strategy and induction of debased informalism seem to be the premise of the reformation agenda of the district judiciary in Delhi as well under which the efforts are directed towards creating such alternative sites of disposal of cases rather than reforming the regular courts for effective and efficient dispensation of justice. However, the concept of debased informalism is not able to provide sufficient explanation
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for the techniques of power employed in these courts. The irony of such special courts in Delhi is that they are situated in the Legal Aid and Counseling Centre of Delhi Legal Services Authority (DLSA) whose motto is to provide access to justice for all. However, what is happening is not the dispensation of just and speedy justice rather the way speech and silence is structured in these hearings suggest the following. The system of informal plea bargaining seems to have established its roots firmly in such courts wherein trade off takes place between the prisoners, jailors and the state. This trade off is popularized as providing access to justice to the prisoners through the means of special courts in official discourse. However what is happening in reality is that the poor must admit guilt for an early release. It is indeed a difficult question whether the discourse of access of justice can capture the principles that underlay substantive procedural law, from a constitutional viewpoint. The place these courts occupy in the subjectivity of these prisoners remains a future project. However, the methods adopted by the niptara courts demonstrate how prisoners are converted into numerical targets, and life histories are replaced by numerical narratives of the state. The relation between poverty and criminalization is well known what may be theft in law may be survival in life and what may be confession in law, may be freedom in lifein both cases, stigma of criminalization overdetermines the poor. The production of docile and productive body in the prison is supplemented by the production of a confessing body in order to to regulate prison populations as an index of efficacy of reform discourses which legitimize the state. Sadly, it legalises the criminalization of the poor as well. BIBLIOGRAPHY Bandyopadhyay, Mahuya (2007). Reform and Everyday Practice: Some Issues of Prison Governance. Contributions to Indian Sociology, vol. 41, no. 3, pp. 387-416. Also available at http://cis.sagepub.com/cgi/content/abstract/41/3/387 ----------- (2010). Everyday Life in a Prison: Confinement, Surveillance, Resistance. New Delhi: Orient Blackswan.
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Baxi, Upendra. 1980. The Indian Supreme Court and Politics. Mehar Chand Mahajan
Memorial Law Lectures. Lucknow: Eastern Book Company.

------ 1982. The Crisis of the Indian Legal System. Delhi: Vikas Publishing House. ------- 2007. The Rule of Law in India. Sur: International Journal on Human Rights. English Edition, no. 6, year 4, pp. 7-25. Baxi, Pratiksha (2008). Access to Justice and Rule of (Good) Law: The Cunning of Judicial Reform in India in Indian Journal of Human Development, vol. 2, no. 2, pp. 279- 302. Coutinho, Lester, Suman Bisht and Gauri Raje. 2000. Numerical Narratives and Documentary Practices: Vaccines, Tragets and Reports of Immunisation Programme.
Economic and Political Weekly. February 19-26, pp. 656-666.

Delhi Prisons. 2006. Annual Review. 20th January, New Delhi. ------------ 2007. Annual Review. New Delhi ------------ 2008. Annual Review. New Delhi. District Courts of Delhi. 2007. Annual Report. Judicial Committee District Courts of Delhi prepared under the guidance of Honble Mr. Justice Madan B. Lokur Foucault, Michel (1995). Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. Second Edition. New York: Vintage Book. Galanter, Marc and Jayanth K. Krishnan (2002). Debased Informalism: Lok Adalats and
Legal Rights in Modern India. Paper presented at the First South Asian Regional Judicial
Colloquium on Access to Justice, New Delhi, November 1-3. 2004. Bread for the Poor: Access to Justice and the Rights of the Needy in India in
Hastings Law Journal, vol. 55, no. 4, pp. 789-833.

Hingorani, Pushpa Kapila. 2000. The Problem of UndertrialsI: Hussainara Khatoon and Public Interest Litigation in Punishment and the Prison: Indian and International
Perspectives, ed. Rani Dhavan Shankardass. New Delhi: Sage Publications. pp. 87-111.
Marshall, P. (1998). Would ADR have Saved Romeo and Juliet? in Osgoode Hall Law
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CONSUMER PROTECTION JURISPRUDENCE: A CONSTITUTIONAL PERSPECTIVE

MANOJ KUMAR PADHY INTRODUCTION The term consumer is a comprehensive expression. It includes a person who buys any goods or commodity for a consideration either as eatable or otherwise from a cooperative store or grocer or approved ration shop for private or public services. i The term consumer also includes any person who uses such commodities with the permission of the buyers though he is not himself a buyer.ii Any person who hires any service for a consideration is also a consumer under the Consumer Protection Act, 1986. iii Therefore, consumers by definition include us all. They are the largest economic group affecting and affected by almost every public and private economic decision. Two-thirds of all spending in the economy is by consumers. But they are only important group in the economy, who is not effectively organized, whose views are often not heard.iv The fact that all citizens regardless of their income or social standing have basic rights as consumer is recognized in India as well as abroad.v. Thus it can be no wrong in saying that the State has a legitimate and compelling interest to protect the interest of consumers. Therefore, all States starting from the most lenient to authoritarian one have put in place legal regime to protect the rights and interest of the consumers vi . The Indian state has also taken many legislative,
administrative and other measures to protect the interests of consumers from the exploitative deeds and deceptive or fraudulent trade practices of unscrupulous market operators. Constitution is the grundnorm of the Indian legal system. Hence, the aim of the legal system is to achieve the goals enshrined in the constitution. For this reason, laws should be consistent with the spirit of Constitution. Similarly, the aim of the consumer protection laws is to achieve the goal of consumer protection and at the same time they should also be consistent with the spirit of constitution. In order to examine a consumer protection law in
the light of constitution we require constitutional mandate on consumer protection. But a question arises, as to whether, the constitution carries any provision relating to consumer protection. On this background an effort has been made in this paper to examine the jurisprudence of consumer protection within the framework of Indian Constitution. CONSUMER PROTECTION UNDER THE INDIAN C ONSTITUTION Though not expressly mentioned anywhere, the philosophy of consumer justice is permeated and reverberated through the Preamble, Fundamental rights and Directive Principles of State Policy of the Indian Constitution.vii The preamble talks about the social, economic and political justice. It should be noted here that justice is the genus of which consumer justice is one of its species. Consumer justice is an aspect of and integral to justice- socialviii and economicix, which the state is obligated to secure to its citizens. The aim of consumer justice is to ensure that the consumer gets what he has paid for in quality and in right measure, and to enforce his rights, if he does not get the right thing in right measure for which he has paid the value. The concept of consumer justice also involves some kind of safeguards for these members of society from all sorts of malpractices and exploitative deeds of market operators, the incidence of which in the ultimate analysis affects adversely the individual in the society. The notion of consumer justice also involves the idea of redressal of consumers grievances and the remedy of restitution and compensation. It may be considered as an aspect of social justice because like the latter, it is a dynamic device to mitigate the sufferings of the poor, weak and deprived sections of society and so to elevate them to the level of equality to live a life with dignity of person. Having an unequal bargaining position vis--vis manufacturers, traders, sellers, and distributors consumers need legal protection to attain substantial degree of economic equality in the market place which is the legitimate expectation and the concept of social justice is a devise to attain the same. Consumer justice is also an aspect of economic justice whose aim is to establish an economic democracy and a Welfare State. It is another name for distributive justice embodied in Articles 38x and 39xi of the Indian Constitution. The concept of distributive justice, it is to be noted, connotes inter alia the removal of economic
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inequalities rectifying the injustice resulting from dealings and transactions between unequals in society. Apart from this, the word socialism which was inserted under the 42 nd amendment, implies a system of government in which the means of production is wholly or partially controlled by the statexii. The rights of the consumer flow from the rights enshrined in Articles 14 and 19 and 21of the Constitution of India. Equality before the law under Article 14 is not only a Constitutional right but it is an essential ingredient for making a state into just and effective welfare state. xiii The right to be informed about the quantity, quality, potency, standard, purity and price of product are crucial to the exercise of other consumer rights. In India the right to know and the right to receive and impart information have been recognized as a part of the right to freedom of speech and expression guaranteed under Article 19(1)(a) of the Indian Constitution. Time and again the Supreme Court has held that a citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. The freedom to telecast on the Doordarshan has been recognized by the apex court in the Doordarshan casesxiv. The right to receive information regarding products and services from advertisements in the print media has been expressly recognized by the Supreme Court in the Tata Yellow Pages casexv. In this case the Supreme Court speaking through Justice Kuldeep Singh observed: "The public at large has a right to receive the commercial speech. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfillment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of commercial speech may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life-saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration".
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Article 21 of the Indian Constitution guarantees the right to life and personal liberty which includes variety of rights and attributes. In R.P.Ltd v. Indian Express Newspapers xvi , the Supreme Court held that the people at large have a right to know in order to be able to take part in a participatory development in the industrial life and democracy. Right to know is a basic right which citizens of a free country aspire in the broader horizon of right to live in this age in our land under article 21 of our constitution. The apex court further added the said right has reached new dimension and urgency and put greater responsibilities upon those who take upon the responsibility to inform. Articles 32 and 226 of the Indian Constitution are also relevant towards consumer protection because the Supreme Court in many cases has diluted the concept locus standi and allowed the public spirited individuals or organizations to enforce the rights of oppressed and backward section of the society. For example, the Supreme Court in
S.P.Gupta v. Union of Indiaxvii opined:

It must now be regarded as well as settled law that where a person who has suffered a legal wrong or legal injury or whose legal right or legally protected interest is violated , is unable to approach the court on account of some disability or it is not practicable for him to move the court for some other sufficient reasons , such as his socially or economically disadvantaged position , some other person can invoke the assistance of the court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or the injury caused to such person does not go unaddressed and justice done to him. Now coming to the Directive Principles of State Policy, Article 38(1) of the Constitution imposes an obligation on the State to promote the welfare of the people by securing and protecting a social order in which social, economic and political justice shall inform all institutions of the national life. In particular, the State is required to direct its policy in such a manner that men and women shall have the right to an adequate means of livelihood xviii. The State is also duty bound to direct its policy towards securing the distribution of the ownership and control of the material resources of the community in such a way as to
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subserve the common good.xix The economic system of the nation has to be operated in such a way that it does not result in concentration of wealth and means of production to common detrimentxx. Thus, a duty is cast upon the State to protect the consumers from exploitative and monopolistic practices indulged in by the big unscrupulous business houses. Besides, the Constitution demands that the State should strive to promote the health and strength of the workers and to ensure a decent standard of life to themxxi. It should also strive to protect the children from exploitation and raise the level of nutrition and the standard of living of its peoplexxii. The State is required to endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.xxiii Article 39-A imposes a duty on the state to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The clause any citizen by reason of economic or other disability may be interpreted in the light of consumer. Due to poverty, ignorance and lack of organization the consumers are unable to assert their right through the court of law. Article 46 of the Indian Constitution provides that state shall endeavor to protect the economic interest of the weaker section of its population and also protect them from social injustice and all forms of exploitation. The term social injustice and all forms of exploitation besides other things ma y be interpreted to include consumer exploitation including all kinds of harassment and fraud in the marketplace. It is the duty of the state to protect the health of its people and to strive to raise the level of nutrition and standard of living of people.xxiv So, the State is under an obligation to check effectively in the market place, the flow of adulterated food stuff and consumable goods injurious to public health and safety. LEGISLATIVE COMPETENCE Turning to legislative competence of Parliament and State legislatures to enact legislation on an aspect of consumer affairs, it is governed by Articles 245 to 255 of the Constitution. The Constitution divides the powers between the Union and the States in three lists - The
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Union List, the State List and the Concurrent List xxv . The Union List consists of 97 subjects xxvi . The subjects mentioned in the Union List are of national importance, viz. defense, foreign affairs, banking currency and coinage, union duties and taxes. The State List consists of 66 subjectsxxvii, but entries 19xxviii, 20xxix, 29xxx and 36xxxi have been deleted by the constitutional amendments. These are of local importance such as public order and police, local government, public health and sanitation, agriculture, forest, fisheries, education, state taxes and duties. The states have exclusive power to make laws on subjects mentioned in the State List. The Concurrent List consists of 47 subjects xxxii. New entries 11Axxxiii, 17-Axxxiv, 17-Bxxxv, 20-Axxxvi and 33-Axxxvii have been added by subsequent constitutional amendments. Both Centre and State government can make laws on the subjects mentioned in the Concurrent List but in case of conflict between Central and the State law on concurrent subjects, the central law will prevail. Although, the term consumer is not expressly mentioned in any of the three lists, it should not present any difficulty for Parliament to enact legislations on different aspects of consumer protection because most of the items concerning such protection are already included in either Union List or Concurrent List. For instance, railways, national highways, shipping and navigation, ports, carriage of passengers and goods by railways, ship or air, or by national water ways in mechanically propelled vessels, banking, bills of exchange, cheques etc., insurance, establishment of standard of weight and measure, film censorship, terminal taxes on goods or passengers, carriage by railway, sea, air, taxation on railway transactions and freights, offences against law with respect to any of the matters in List I etc., are items that find their place in List I. Likewise, the matter of concern to consumers such as crimes and criminal procedure, adulteration of food stuff and other goods, drugs and poisons, commercial and industries monopolies, combines and trusts, legal, medical and other profession, price control, trade and commerce and the production, supply and distribution of food stuffs including edible oil seeds and oil, weight and measures, electricity, newspapers, books and printing presses etc., find their place in Concurrent List. These are the item on which both Parliament and State Legislatures have power to enact legislation subject to limitation imposed by the Constitution.
For regulation of commercial advertising Parliament has the competence to make any law on telephone, wireless broadcasting and other like forms of communication and this power also extends to commercial advertising by radio, television, and Internet. This apart, Parliament can also make any law relating to taxes on the sale or purchase of newspaper and on advertisements published therein. Power to regulate commercial advertising is also implicit in the power of the Parliament and State Legislature to enact legislation on newspapers, books and printing presses. The States can make law on the subject mentioned in the State List and the concurrent list. But, in case of conflict between the Centre or States law on concurrent subject, the central law will prevail. Most significantly, the Parliament is vested with the residuary legislative power by Article 248 of the Constitution, which says that Parliament can make any law with respect to any matter not enumerated in the Concurrent list or the State list. Entry 97 of the Union List also lays down that the Parliament has exclusive power to make laws with respect to any matter not mentioned in the State list or the Concurrent list including any tax not mentioned in either of these Lists. CONCLUSION Consumers are the largest economic group and have always been remaining as a game changer for economic activities and therefore, treated as the king in changing business scenario. Despite the fact that the consumer protection is a crucial and sensitive affair, it is surprising to note that the consumer affair is not expressly mentioned anywhere in the Indian Constitution i.e. the Indian Constitution carries no express provision relating to consumer protection. But since consumer justice is an integral component of social and economic justice which the state is duty bound to secure to its citizens, the central and state government are mandated by the Constitution to recognize and protect the rights of the consumers in general and safeguard them. As we have seen above, the idea of consumer protection is permeated through the Preamble, Fundamental Rights and Directive Principles of the State Policy of the Constitution. Although Directive Principles of State Policy are not enforceable by any court, still, these are fundamental in governance of the
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country and it shall be the duty of the State to apply these principles in making laws. xxxviii So, it can be said that, it is one of the constitutional obligations imposed on the State to protect the consumers from all sorts of exploitation in the market place. The discussion also reveals that consumer affair as a subject has not been mentioned in Union, Concurrent and State List expressly. But it is evident from the foregoing discussion that the State is mandated by the Indian Constitution to protect consumers against restrictive trade practices, unfair trade practices and other exploitative practices against consumers. Further, Parliament has legislative competence to legislate on consumer affairs. State Legislature is also competent to legislate on those aspects of consumer affairs which fall within the state list. As it has been observed, consumer protection is a sensitive and serious matter. So, merely reading the consumer protection jurisprudence in between the lines of the Constitution is not sufficient. There should be express provision for consumer protection under the Indian Constitution. Therefore, it is humbly submitted that the Constitution of India should be amended to accommodate express provisions regarding consumer welfare and consumer protection. There is also a need to include consumer affairs as an item in the Concurrent List in the Seventh Schedule of the Indian Constitution. Schedule 11 should also be suitably amended to secure the active involvement of the Panchayati Raj Institutions in the implementation of the consumer welfare programmes and activities. REFERENCES
Section 2(1)(d)(i) of the Consumer Protection Act, 1986; See also Lucknow Development Authority v. M. K.
Gupta, (1994) 1 SCC 243 at 253.

Section 2(1)(d)(i) of the Consumer Protection Act, 1986; See also D.V Lakshminarayana v. Div. elec. Eng., (1991) II CPJ 303 AP. iii Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. iv John. F. Kennedy, Special Message to the Congress on Protecting the Consumers Interest on March 15, 1962, available at http://www.presidency.ucsb.edu/ws/?pid=9108, accessed on 10/24/2013. v President Johnson of USA said: For too long, the consumer has had too little voice and too little weight in the government. As a worker, as a business man as a farmer, as a lawyer or as a doctor, the citizens are well represented. But as a consumer, he has had to take a back seat. That situation is changing. The consumer is moving forward, we cannot rest content until he is in the front row, not displacing the interest of the producer, yet gaining equal rank and representation with that interest. What is the new is the concern for the total interest of the consumer, recognition of certain basic consumer rights: right to safety, right to be informed, the right to choose and the right to be heard, President Lyndon B. Johnson of USA, Special Message to the Congress on Consumers Interest on February 5, 1964, available at http://www.presidency.ucsb.edu/ws/?pid=26058, accessed on 11/12/2013.
ii
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For details on the rights of the consumers see generally, Harvey and Parry, The Law of Consumer Protection and Fair Trading, 1992; Dr. Rakesh Khanna, Consumer Protection Laws. (Central Law Agency, Allahabad, 2002);, P Leelakrishnan (ed.), Consumer Protection and Legal Control(Eastern Book Co. Lucknow); Robert Lowe and, Geoffrey Woodrffe, Consumer Law and Practice (Sweet and Maxwell, London, 1995); Rajendra Kumar Nayak, Consumer Protection Law In India (N.M. Tripathi Pvt. Ltd., Bombay 1991); D.N. Saraf, Law of Consumer Protection in India (N.M. Tripathi Private Limited, Bombay, 1995); Avtar Singh, Law of Consumer Protection Principles and Practice (Eastern Book Company, Lucknow, 2000). vii For details see generally, Durga Das Basu, Constitution of India (Wadhwa and Company, Nagpur, 2002); M. Seervai, Constitutional Law of India, (Universal law Publishing Co. Pvt. Ltd. ND, 4th edn., Vol. 1, 2011; M. Hidayatullah, Constitutional Law of India (Gulab Vazirani for Arnold - Heinemann Publishers (India) Pvt. Ltd., New Delhi, 1984); V.N. Shukla, Constitution of India (Eastern Book Company, Lucknow, 2004). viii In All India Statutory Corporation v. United Labours Union, AIR 1997 SC 645, a three judges bench of the Supreme Court has explained the concept of social justice in Article 38 as follows: The concept of social justice consists of diverse principles essential for the orderly growth and deve lopment of personality of every citizen. Social justice is an integral part of justice in generic sense, justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and so elevate them to the level of equality to live a life with dignity of person The Constitution therefore, mandates the states to accord justice to all members of the society in all facets of human activity. For further detail on social justice, see generally V.R. Krishna Iyer, Social Justice: Sunset or dawn, (Lucknow: Eastern Book Co., 1987); V.R. Krishna Iyer, Ambedkar Centenary Social Justice and the Undone Vast, (Delhi: B.R. Pub. Co., 1991); David Miller, Social Justice (Oxford: Clarendon Press, 1976).
vi ix
The banishment of poverty, not by expropriation of those who have, but by the multiplication of the national wealth and resources and an equitable distribution thereof amongst all who contribute towards its production, is the aim of the state envisaged by the Directive Principles, Economic democracy will be installed in our subcontinent to the extent that the goal is reached. In short, economic justice aims at establishing economic democracy and a welfare state, D.D. Basu, Introduction to the Constitution of India (New Delhi: Prentice Hall of India Pvt. Ltd., 1997), p. 24. For further details see generally, Kailash Rai, The Constitutional Law of India (Allahabad: Central Law Publications, 2005); J.N. Pandey. Constitutional Law of India (Allahabad : Central Law Agency, 1997); V.N. Shukla. Constitution of India (Lucknow : Eastern Book Company, 2004); H.M Seervai. Constitutional Law of India. (Bombay : N.M. Tripathi Private Ltd., 1991); M. Hidayatullah. Constitutional Law of India (New Delhi: Gulab Vazirani for Arnold - Heinemann Publishers (India) Pvt. Ltd., 1984).
x
Constitution of India, Article 38(1) runs: The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which social, economic and political, shall inform all the institution of national life; Article 38(2) runs: The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status. Facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
xi
Article 39 of the Indian Constitution provides: the State shall, in particular, direct its policy towards securing(a)that the citizens men and women equally, have the right to an adequate means of livelihood; (b) thatthe ownership and control of the material resources of the community are so distributed as best to sub serve to common good; (c)that the operation of economic system does not result in the concentration of wealth and means of production to the common detriment; (d)that there is equal pay for equal work: (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocation unsuited to their age of strength; and(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
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In D.S.Nakara v. Union of India, AIR 1983 SC 130, the Supreme Court has held that the basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. xiii R. K. Nayak, Justice for Consumers: A Cry Indian Consumer Cooperator, 1 (April 1974). xiv In Odyssey Communication (P.) Ltd. v. Lokvidayanm Sangathan, (1988) 3 SCC 410, the right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the latter has been recognized; In Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, (1995) 2 SCC 161. The apex Court made it clear that an individual has a right under Article 19(1)(a) to have an access to telecasting, which is subject to the limitation on account of use of public property, i.e. the air waves involved in the exercise of the right can be controlled and regulated by the public authority even on grounds not strictly covered under Article 19(2) of the Constitution.
xii xv xvi
Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
AIR 1989 SC 190; also see PUCL v. Union of India, JT 2003 (2) 528, where the supreme court observed that fundamental rights in themselves has no fixed contents, most of them are empty vessels into which each generation must pour its content in the light of its experience. xvii (1981) Supp. SCC 87 xviii Article 39(a) of the Constitution of India. xix Id., Article 39(b). xx Id., Article 39(c). xxi Id., Article 39(e). xxii Id., Article 43. xxiii Id., Article 48(A). xxiv Id., Article 47. xxv Id., Article 246. xxvi Id., Article 246, Seventh Schedule, List I.
xxvii xxviii xxix
Id., Article 246, Seventh Schedule, List II.

Constitution (Forty-Second Amendment) Act, 1976.
Ibid. xxx Ibid.

xxxi xxxii
Constitution (Seventh Amendment) Act, 1956. Article 246, Seventh Schedule List III of the Constitution of India. Constitution (Forty-Second Amendment) Act, 1976.
xxxiii xxxiv xxxv xxxvi xxxvii
Ibid. Ibid. Ibid. Ibid.

Article 37 of the Constitution of India.
xxxviii
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FARMERS RIGHTS UNDER PLANT VARIETY PROTECTION (PVP) LEGISLATION IN INDIA: A CRITICAL STUDY
SOPHY K.J. INTRODUCTION Farmers rights are very crucial in developing countries like India to ensure present and future food security where the farmers are majorly responsible for development of vast genetic diversity resources through keen observation and intelligence. The farming communities across the world have been following, since time immemorial, the practice of sharing of knowledge and resources. Sharing of seeds among farmers, for example, constitutes perhaps the most important part in these traditional agricultural practices. But unfortunately the developers of this wealth remained invisible in trade and commerce and their resources have been utilized by Private Agrarian Sector. They were not either consulted or benefited or not even informed while detraction of their ce nturies worth toil and results. With the advent of Intellectual Property Regime, ownership rights vested with the Multi-national Companies (MNCs). They deliberately used the resources of poor and uneducated farmers of developing nations for their monetary gain. The poor farmer remained poorer in this bargain and they lost their means of livelihood as they have to buy seeds at fixed prices maintained by the private companies. This sudden shift from commons approach to anti-commons approach has affected socio-economic political status of the farmers. This point is analyzed in Conceptual Analysis of Farmers Rights. Immediately after realization of Gregor Mendels contribution to plant hybridization, the more technology and infrastructure convenient western nations developed commercial breeding and established monopoly on plant varieties. The debate between developed nations and developing nations reached at a turning point when Food and Agriculture
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Organization came up with a Commission on Plant Genetic Resources set up under Food and Agriculture Organization to study about the materialization of the concept farmers rights. TRIPs (Trade Related Aspects of Intellectual Property) Agreement to which India is a signatory mandated minimum protection for technologically developed plant varietiesi. 1. CONCEPTUAL ANALYSIS-FARMERS RIGHTS For thousands of years, the farmers have been engaged in the process of selection and conservation of plant varieties. As a result diverse varieties of each crop plant are seen in developing nations, especially in India. Though plant varieties are developed according to climatic conditions at each place, the dissemination of seed varieties have largely contributed to increase knowledge and skill in farming. In India farmers are the source of supply of both seed and food commodities and substantial amount of these requirements are met through farmer-to-farmer exchangeii. Thus farmer is also the breeder, conserver and distributor of not only seed but also information about agricultural practices. Therefore food security and genetic diversity completely depends upon farmers. The scientific development of new crop varieties has started only before 100 years whereas the agriculture is there from dawn of civilization. In western countries, the ownership rights over new varieties started much prior to the establishment of UPOV in 1961. The Research and Development facilities in developed countries resulted in innovation of hybrid varieties. The Intellectual Property Regime that incentives the innovator for innovation favoured the breeder to establish and extend their activities to developing countries where public-sector and farmer oriented researches are going on. After globalization and opening up of trade barriers the Transnational Companies entered the Indian market and utilized genetically diverse natural resources for deriving their new varieties. The extraction or exploitation of developing countries genetic resources was largely criticized at international level. Food and Agricultural Organization appointed a Commission to study about the concept of farmers rights. The increased biodiversity misappropriation by developed nations forced to recognize and reward farmers for their centuries old practices of saving, selling, using, exchanging and propagating seed that have commercial value.
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The perceptions regarding farmers rights can have different approaches. While formulation of rights of farmers, the first evolved is ownership rights approachiii. The recognition and acceptance to the plant varieties that have commercial value cannot be denied IPR protection. Farmers deserve rights because they innovate, improve and develop varieties and contribute to agricultural innovations. In developing countries, there is no traditional division between breeders and farmers. Free exchange of seed between farmers helps them to accumulate knowledge about the growth and qualities of seed in different fields in different climatic conditions. Denying protection to farmers plant varieties is like no t rewarding intellectual contribution of farmers. Therefore TRIPs which deals only with technologically developed plant varieties would not be in compliance with philosophy of Intellectual Property Rights to incentivise the contributor of knowledge. Moreover, in the absence of protection of farmers knowledge we have witnessed serious issues such as drain of knowledge from farmers to private sector, monopolization of the mightier MNCs on existing varieties and exclusion of others to avail, access and distribute seeds. As a conserver of rich ago-biodiversity, the stewardship rightsiv should be granted to the farmers to ensure that they are prior consulted before acquisition of their variety by others. The said approach is a realization of the farmer-farmer-exchange system of seeds to conserve diversities. It has been proved that sharing and exchange practices have kept the bio-diversity of India rich and wealthyv. The inclusion of only ownership approach may even impede exchange system among farmers and it may result in confinement of benefits to him/her. The rights as a conservator should not curtail the farmers practices of continuing generation of diverse crops. There is wide criticism against criteria of uniformity in plant variety protection whereby the production of diverse genotypes of plants is not encouraged. The other perception is that farmers rights should go beyond ownership and stewardship rights and they should be provided with development right to access to resources such as technology, seeds at lower prices, low interest credit etc. vi Legal and economic costs of establishing the system, the difficulties of legally claiming rights for farmers, and the limited returns from plant variety protection itself are some of the reasons why IPR-based
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Farmers Rights approaches are unlikely to provide significant economic returns to farmersvii. Therefore monetary gain from royalty payments the farmers looks for economic support to access to new resources. There is also a view that opening up of Indian markets resulted in import of seeds and Indian agriculture varieties were underestimated and replaced in Indian fields under the influence of foreign seed companies.viii The reasons for recent GDP decline of Indian agriculture has its roots in farmers inabilit y to cop up with use of technology, lack of infrastructure and awareness about their rights. An analysis of economic changes due to assertion of farmers rights could be studied to rather strengthen farmers livelihood and agriculture growth. There is also a view that anti-commons approach towards natural resources has resulted in underutilization of resources and in turn economic downfall ix . The ownership over resources either by farmers or by breeders promoted the resource to keep ones own and this affected the practice of free flow of knowledge and resources. In general outlook, the idea of farmers rights denotes in simple terms the rights of farmers over their resources and knowledge. The term resources and knowledge can have wide meaning and scope in common parlance. It may encompass a number of concerns related to all important factors of agricultural production such as land, water, seeds, traditional agricultural practices, harvest and traditional agricultural knowledge. However, the contemporary legal regime does not address all these aspects of farmers rights. In fact, farmers rights as a legal norm have defined boundaries. Broadly there are two major issues that are addressed by the concept of farmers rights in the contemporary legal context. They are: plant genetic resources and traditional agricultural knowledge. 1.1 NORTH-SOUTH CONFLICT FOR CONFERRING IPRS ON FARMERS One of the problems to be discussed is the nature of Intellectual Property Rights to protect the interests of farmers. This subject matter attains wide political attention. The developing nations started commercial breeding immediately after rediscovery of Mendels laws of inheritance in 1900 and established commercial companies and attributed monopoly rights over their hybrid seedsx. Intellectual property rights (IPR) applied to seeds gives breeders an
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exclusive monopoly right in relation to the seed. Under patent law, that monopoly right is very strong. It will generally prevent anyone from using, selling or producing the seed without the patent holders permissionxi. In developing countries, farmers domesticated and facilitated the process of crop adaptation to varied eco-systems and practiced diversity farming for sustainable agriculturexii. Therefore absolute IP (Intellectual Property) Rights on Breeders recommended by developed nations could only leave the farmer with no legal status as their traditional agricultural practices do not satisfy the originality, novelty and uniformity requirements of IP law. An issue closely related to farmers rights is the recognition and protection of the plantrelated knowledge, innovations and practices of indigenous and local communities xiii. It has been proved through many cases that traditional knowledge of farmers have been illegally used and later utilized for developing derivative varieties of plants and subjected to monopolization by breeder companiesxiv. The non-disclosure of origin and no sharing of benefits let the farmers knowledge taken for granted by the MNCs. When the biopiracy issue was taken up globally, the Private Seed Companies, Monsanto and other six botech MNCs made an entry into developing nations under the slogan biotechnology and povertyxv offering quality seed like drought-tolerant, resistant to insects and weeds and able to capture nitrogen from the air. In the issue of Bt Cotton, there were wide protests against Monsanto for using terminator technology on seeds to cause second generation sterile for reproduction. The method of farmers to collect seed from their harvests for re-sowing was deprived and their costs of farming increased as they have to pay every time to buy seed for cultivation. Indian (domestic) Seed companies reverse engineered and after modification on the same hybrid variety produced illegal Bt Cotton seedsxvi which were highly received by farmers considering its resistance to bollworm attack and low price compared to Monsanto. This shows that the farmers in developing nations never keeps anti-technology attitude but seed companies should take a stand considering farmers access to resources and food freedom. 2. HISTORY OF POLICY MAKING IN INDIA
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Indias policy on Plant Variety Protection witnessed major changes by adoption of New Seed Policy of 1988 to allow large Indian and multinational (MNC) companies to invest in the production of hybrid seeds and agricultural biotechnology. xvii This allowed import of seeds and collaboration in agriculture research with foreign companies. Thus subsidiaries of foreign multinationals found a strong root in India and formed Seed Association of India (SAI) by 1985. A conference conducted by SAI became a breakthrough framing legislation for protection of plant varieties. Several NGOs and farmer groups voiced against sole grant of rights to breeders and demanded to consider the agriculture environment as a special case and utilize the flexibility provided by TRIPs. The first draft of the Bill was formulated in 1993/94 that received wide criticism for conforming to UPOV by granting rights to plant breeders. Also this draft was criticized for not having incorporated ownership rights perception under farmers rights. The first bill provided consideration to public sector by allowing rights over extant variety by registration. This draft contained clauses on community rights to benefits out of use of their genetic material and farmers rights to save, use, exchange, share and sell propagating material of seed except sale of branded seed. But there was no concept of farmers ownership rights through registration. Considering strong protest from both NGOs and industry, the Ministry of Agriculture prepared second draft in 1996 and a third one in 1997. The third draft contained Farmers Rights in the title but it was again criticized by NGOs pointing that benefit sharing was vague under the bill, there were no farmers representatives in the Authority, and there was no system for registering farmers varieties. The fourth draft was introduced in Parliament in 1999 which was sent to a Joint Parliamentary Committee to redraft the bill considering opinions of NGOs, industry, scientists and farmers. The final and fourth version of the bill was introduced in 2001 and became law. The Act found new chapter on registration of farmers varieties and detailed provision on farmers rights. NGOs accepted the bill as it provided for a mechanism for granting protection for farmers varieties on par with breeders varietiesxviii. India is one of the few countries having specific legal provisions addressing farmers rights. The concept of farmers rights has become an explicit part of Indian legal system through the Protection of Plant Varieties and Farmers Rights Act, 2001. While this can be considered
as a landmark as a beginning, farmers rights provision under the Act has invited several critique both from a conceptual and implementation point of view. In this back ground, this essay seeks to explain the nature and scope of farmers rights in India and further captures and key critique relevant for further meaningful development of the concept. 3. SALIENT FEATURES O F THE ACT By considering farmers rights as a kind of Intellectual Property through Indian legislation, it is a safe platform for Indian farmers to enforce their rights globally. For decades, India did not allow patents on seeds or plants and had no system of protection for plant varietiesxix. Indias legislation for protection of Plant Varieties known as Protection of Plant Varieties and Farmers Rights Act, 2001 chose sui generis option as provided in TRIPs. India is one of the few countries having specific legal provisions addressing farmers rights. Since farmers rights are primarily the concern of developing countries, an analysis of farmers rights regime in India has particular relevance. The significant part of this legislation is Chapter VI that enunciates Farmers Rights. The PVP Act tends to recognize and protect farmers practices. It is provided in the Act that farmers have the right to save, use, sow, resow, exchange, share or sell farm produce including seed of a protected variety in the same manner as they were entitled prior to the PVP Act. This indicates insertion of the concept of stewardship (conservatorship) rights. A farmer who is engaged in the conservation of genetic resources and its improvement through selection and preservation is entitled to rights to reward under this Act. However, farmers are not entitled to sell the seed of a variety protected under the Act xx. This means, out of the bundle of rights provided to protect farmers practices; the right to sell can not be invoked in the case of seeds of a variety protected under the Act. The rights such as right to register new variety and farmers variety treat the farmer at par with breeder. Registration procedures are applicable to farmers as well. However, the application for registration of farmers varieties does not require documents such as affidavit to the effect that the variety does not contain any gene or gene sequence involving
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terminator technology, complete passport data of the parental lines from which the variety has been derived and statement describing briefly the characteristics of novelty, distinctiveness, uniformity and stabilityxxi. The concept of reward for farmers contribution to the development of a commercial variety could be seen as a part of a general design of benefit sharing under the PVP Act. The beneficiaries are farmers who contributed to the development of germplasm. He transfer of germplasm for commercial use entitles them for reward in monetary form. The amount to be paid in the course of benefit sharing is to be determined by considering the extent and nature of the use of genetic material of the claimant in the development of a new variety and the commercial utility and market demand for a new varietyxxii. The other right provided is right to claim compensation. The right to claim compensation to village or local community is granted for their contribution to the evolution of a variety registered under the Act. An important feature of this right is that it is a group right or a community right. Consequently, the principle of locus standi is diluted in putting claim for compensation. This means the right holding village or local community need not necessarily lodge claim for compensation. The PVP Act permits any person, group of persons or any governmental or non-governmental organisations to file the claim on behalf of the right holding communityxxiii. This is particularly relevant in the case of farmers given the probable incapacity of farmers in various matters related to lodging claim for compensation before the appropriate authority such as satisfying the technical requirements and follow up of registration of new varieties. The right to claim compensation is available to farmers in another situation also, that is, if they purchase a registered variety. In case a registered variety has been sold to farmers, the breeder of such variety has a duty to disclose the expected performance of the variety under given conditions. If the variety fails to perform as per the disclosure, concerned farmers can claim compensation from the breederxxiv.
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The other favourable factor is protection in the case of innocent infringement. It is a positive protection for poor, illiterate farmer who has alleged to have infringed the rights of others being unaware of such rights. There are fee exemptions during registration and litigation proceedings before the authority, registrar or the tribunal or the High Court under the Actxxv. The institutional mechanisms for protection of farmers rights are Protection of Plant Varieties and Farmers Rights Authority (hereafter the Authority)xxvi and the Gene Fundxxvii. It is explicitly mentioned in the Act that the general function of the Authority includes the protection of the rights of farmersxxviii and to ensure that the seeds of varieties registered under the Act are available at reasonable price and reasonable quantity xxix . Gene fund regulates financial matters such as compensation and benefit sharing. There are public interest provisions like compulsory licensing, non-registration of varieties that affect public order and morality and are injurious to human, animal, plant life and healthxxx. To safeguard adverse effects of modern technology, Explanation of Section 29 (3) of the Act prohibits registration of any variety which contains genetic use restriction technology (GURT) which is otherwise known as terminator technology that makes the next generation sterile for reproduction. 4. INADEQUACIES OF THE L EGISLATION An umbrella criticism that the Act faced was that the legislation was drafted in line with model adopted in UPOVxxxi and there are no express provisions in the law to protect the customary rights of the farming community in Indiaxxxii. There is a wide concern with the Act that it treats farmers at par with commercial breeders. That means centuries old agricultural practices are given the same status as that of commercial breeding. There is difference between the two as breeding is an activity based on research and development happens inside multinational labs whereas farmers knowledge is a team effort developed through keen observation and manual calculation in open nature. Further the registration procedure included under the Act demands both farmer and breeder to satisfy the criteria of
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novelty, distinctiveness, uniformity and stability to qualify for protectionxxxiii. So a farmer is obliged to prove his variety scientifically for protection under the Act. The PVP Act has received mixed comments and responses in the context of farmers rights from the academics and thinkers regarding its normative and pragmatic value. While some hails it as a landmark being the first of its kind across the world, some others critique it as incapable of producing any significant outcome for farmersxxxiv. The appreciation of the PVP Act, mainly, is based on the fact that farmers rights have been incorporated as a separate chapter recognising some of the core rights of farmers. Whereas the critique is mainly based on the fact that the PVP Act treats farmers at par with modern commercial breeders. This approach does not take into consideration the essential difference in working, preferences and concerns between modern commercial breeding and the traditionally farming system. These two systems rely on and promote different knowledge systems and identify innovations differently and reward inventors in different waysxxxv. This could be explained with two points. First, the modern commercial breeding industry seeks rewards mainly in the form of financial benefits, whereas the established farming practices do not concentrate exclusively on financial incentives. Second, knowledge produced through farming practices cannot easily be attributed to a single farmer or a group of farmers. To put it another way, farmers knowledge is often less individualistic than scientific knowledge produced in the laboratoryxxxvi. It could be seen that the PVP Act does not consider this essential difference. The procedure prescribed under the Act for registration of farmers variety could be taken as a best example to establish this gap. Even though the PVP Act does not require farmers to comply with all conditions prescribed under the Act, farmers need to produce a declaration as to the lawful procurement of genetic material or parental material to register a farmers variety. It has been argued that this requirement does seem to be unrealistic given the farming practices followed traditionally in this countryxxxvii.
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It has also been argued that the equal treatment of farmers and commercial breeders under the PVP Act with regard to the registration of new varieties would do little good to farmers. Because, various conditions required to be followed in the registration of a new variety requires technical expertise. Given the social and economical conditions of majority of farmers in India, this provision would have little effect when it comes to
implementationxxxviii. The socio-economic condition of farmers will also be a matter which likely to affect the benefit sharing mechanism envisaged under the PVP Act. The PVP Act requires farmers to be vigilant and make application before the authority situated most likely far away from their place. To counter this implication, the PVP Act presupposes that non-governmental organisations would take care of this matter. However, this does not seem to be sufficient, especially given the fact that the socially and economically under privileged farmers will have to fight against big corporates having huge financial and human resourcesxxxix. Regarding the procedural and administrative aspects, there could be three major critique of the PVP Act. First, the PVP Act envisages that the revenue generated from the use of farmers variety is to be maintained by the Gene Fund and part of this money will be used for the administrative expenses of the Gene Fund. Being this a responsibility of the government, it could be argued that the whole amount should be used for the benefit of farmers. Second, the PVP Act provides for compensation to farmers from commercial breeders if the seeds purchased by farmers failed to yield as declared by the breeder. Regarding the quantum of compensation, the PVP Act gives complete discretion to the Authority. In this scenario, it could be suggested that there should be some guidelines as to the quantum of compensation such as it should be at least twice the projected harvest value of the crop xl . Third, the PVP Act provides protection to farmers from innocent infringement of breeders rights. Here the critical point is that the burden of proof lies on farmers. It is for the farmers to prove that the infringement was innocent. This could be considered as a deviation from the general principle that the duty to prove lies on the
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person who alleges the violation of rights. Moreover, the PVP Act does not provide any particular reason for this deviation. Another major critique of farmers rights as provided under the PVP Act is related to the classic property rights of farmers. Section 39 of the Act provides that farmers are not allowed to indulge in commercial exchange of seeds of a variety protected under the Act. As per the classical property concept, a farmer has absolute control over the seeds purchased by him. Therefore, the right to exchange such seeds, whether in a commercial or noncommercial manner, could be considered as inevitably emanating from the classic property right concept. This right has been curtailed or restricted by the PVP Act. Moreover, it is a fact that majority of seed requirement in India is met by farmer-to-farmer exchangexli. It could be, therefore, argued that the PVP Act does not provide sufficient reason for restricting this classic property right and its implications upon agricultural economy do not seem to have considered adequately.xlii Broadly, the major reason for these seemingly unrealistic normative and procedural manifestations could be attributed to the fact that the PVP Act was originally designed for the registration of new variety bred by modern corporate breeders. Farmers rights were included subsequently at the instance of the Joint Parliamentary Committee without changing the rest of the provisions of the framework xliii . Therefore, inconsistencies and contradictions are very likely both at the conceptual and procedural level. Hence, it could be suggested that there should be separate norms and procedures for the protection of farmers rights and for the registration of farmers varietyxliv. Further, the presence of the Biodiversity Act makes the legal and institutional framework addressing farmers rights in India multiple and complex in nature. This complexity is particularly apparent in the case of access and benefit sharing. A brief comparative analysis of two statutes could reveal that there is overlapping and differences between these two statutes. This might lead to obscurity at the level of implementation and realisation of farmers rights also. Most importantly, there are three issues relevant to farmers rights in this regard.
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First, it is most likely that access to plant genetic resources will be regulated under the Biodiversity Act in accordance with mutually agreed terms with the participation of all stake holders.xlv This reveals an unclear scenario where a person or corporation intends to develop a new plant variety by using a plant genetic resource(s) in India should seek prior permission from the National Biodiversity Authority in consultation with farmers and local communities and the consequent new plant variety will be registered under the PVP Act. Since, the PVP Act also contains norms regarding benefit sharing, it is most likely that farmers have to apply afresh before the Protection of Plant Varieties and Farmers Rights Authority for benefit sharing. Here the critical question is the relevance and legal validity of terms and conditions entered into as part of approval by the National Biodiversity Authority regarding benefit sharing when a farmer or a farming community approach the Protection of Plant Variety and Farmers Rights Authority for benefit sharing. Another problem arise in this context is the presence of more than one forum to address single issue. Second issue is related to the difference in the scope of benefits. It is already noted that the PVP Act envisages only monetary benefits. Whereas the Biodiversity Act enlists a number of benefits other than monetary compensation. This raises a number of questions such as whether farmers can approach two different statutory authorities to claim benefits related to a single issue and whether the registered owner of the plant variety under the PVP Act can be held liable to share benefits under the Biodiversity Act on the basis of the instrument of prior approval? Third issue is related to the difference in the ways in which monetary benefit is to be dispensed. The PVP Act does not provide any direct rights in this regard by providing that monetary compensation is to be deposited in the Gene Fund. At the same time, the Biodiversity Act, to some extent, recognises the right of the claimers to receive monetary compensation directly. Here again the question comes whether farmers can choose the forum to claim monetary compensation? Even if this is possible at a theoretical level, it may be very difficult to happen in practice given the socio-economic condition of most of the farmers in India.
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A probable solution to these overlapping and conflicting regimes is an effective coordination between two statutory frameworks. This could be facilitated by a new regulation or guideline on access and benefit sharing by the central government by incorporating all relevant norms such as prior informed consent, mutually agreed terms and an expanded list of benefits. The impediment of socio-economic conditions of farmers and local communities could be addressed by envisaging a pro-active role for statutory bodies to ensure that relevant norms are followed in meaning and spirit. In fact the Biodiversity Act already follows this approach by entrusting the duty on the Biodiversity Authority to ensure mutually agreed terms between the user, local communities and claimers. 5. FUTURE C HALLENGES TO THE L EGISLATION Indias Plant Variety Protection Legislation should be capable to scrutinize the private seed companies acquiring protection over India. Free Trade Agreements open the doors to these MNCs to establish their roots in developed countries. Industrialized countries, particularly the US, are now seeking to get even better conditions for the realisation of far-reaching exclusive claims over living materials to safeguard the commercial interest of their biotechnology industry through FTAs with developing countries like India and African nationsxlvi. The FTAs demand the trade partners with the US to conform their plant variety legislation to the UPOV standards wherein breeders rights are protected. Bharatiya Kisan Union, the South Indian Coordination Committee of Farmers Movements (SICCFM) like organizations are in the forefront of protests against EU-India FTA, Japan-India FTA and India-ASEAN FTA. FTAs demand more import of agriculture commodities to India and for adoption of stringent north IPR norms that will shrink the rights of farmers. The study indicates that in EU-India FTA, EU has a clear advantage in the export of dairy products, fruits and vegetables, seeds, cereals, edible oil, cereal preparations, spices, confectionary, nuts and cashew nut and cocoa products xlvii. Therefore the Act should contain a provision to the extent that any trade agreement with foreign nations adversely affects the varieties protected and produced by the Indian farmers and their livelihood.
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In the changed scenario of technological advancement and enhanced food production, the Seed Bill, 2004 is now under discussion to replace Seed Act, 1966. Section 2.7 of the Bill defines the term dealer as a person who carries on the business of buying and selling, exporting, or importing seed, and includes an agent of a dealer. This definition treats farmers as tradersxlviii. The proposed Seed Bill also introduces mandatory registration for all seeds for salexlix. Thus the farmers will be hounded to run about for registration if they grow and exchange seeds. Section 43 though grants resembling rights those granted under Section 39 of PPV&FR Act, 2001, the restrictions that branded seeds cannot be sold and the seed has to be in conformity with minimum limit of germination, physical purity and genetic purity imposes additional conditions on farmers shoulders. And reluctantly, the Seed Bill again gives an idea of forum shopping in case of seed failure in the field to claim compensation under the Consumer Protection Act whereas under Act, 2001 the remedial body is PVP authority. 6. CONCLUSION The present legislation to protect plant varieties introduced an anticommons approach in the case of genetic bio-diversities in India. Though the Act provides ownership rights to both farmers and breeders, the MNCs have stronger say while poor farmers would struggle to assert their legal claim. Considering the socially, economically and educationally weak situations of the local and tribal communities, without explicit provisions to protect customary agricultural practices and their varieties, the Act would fail to implement one of its objectives to protect the interest of traditional farming communities and farmers. In reality, the inclusion Farmers Rights would remain as a decorative title in the Act. In the case of benefit sharing, the process should be clearly laid down and case-by-case negotiation must be held as the value of each plant variety varies according to its commercial viability. There is healthy collaboration for research between public sector and farmers. So if the law could provide incentives for sharing of knowledge that would promote research and innovation. At the same time the farmers must have access to information about the technology used in hybridization. Express Research Exemption has to
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be provided to farmers also. Along with this to strengthen the small and marginal farmers, they should be provided with access to infrastructure and interest reductions in credit and other developmental accessories. Farmers must be assisted with advisors during negotiation process of access and benefit sharing. For farmers and village communities, awareness generation and information empowerment is a must through vernacular press, radio, television and the Internetl. To ascertain the ownership rights of farmers the village/grass root level democratic institutions should cooperate and if possible notify the varieties belong to each farmer in the Panchayat. 7. REFERENCES
Dr. Philippe Cullet and Radhika Koluru, PLANT VARIETY PROTECTION AND FARMERS RIGHTS: TOWARDS A BROAD UNDERSTANDING, 24 Delhi Law Review 2002 (2003), p.41 ii Anitha Ramanna, INDIAS PLANT VARIETY AND FARMERS. RIGHTS LEGISLATION: POTENTIAL IMPACT ON STAKEHOLDER ACCESS TO GENETIC RESOURCES, EPTD Discussion Paper No. 96, Environment and Production Technology Division International Food Policy Research Institute, January 2003 iii Dr. Philippe Cullet and Radhika Koluru, PLANT VARIETY PROTECTION AND FARMERS RIGHTS:TOWARDS A BROADER UNDERSTANDING, 24 Delhi Law Review 2002 (2003), p. 41 iv To maintain and preserve the genetic bio-diversity v S. Bala Ravi, MANUAL ON FARMERS RIGHTS, MSSRF, 2004 vi Dr. Anitha Ramanna, FARMERS RIGHTS IN INDIA: A CASE STUDY, Farmers Rights Project, FNI report 6/2006, The Fridtjof Nansen Institute 2006 vii ibid viii Renuka Mahadevan, PRODUCTIVITY GROWTH IN INDIAN AGRICULTURE: THE ROLE OF GLOBALIZATION AND ECONOMIC REFORM, Asia-Pacific Development Journal, Vol. 10, No. 2, December 2003 ix J. Buchanan and Y. Yoon, SYMMETRIC TRAGEDIES: COMMONS AND ANTICOMMONS, Journal of Law and Economics, XLII, April, 2000. x Supra at 7 xi FARMERS' PRIVILEGE UNDER ATTACK, GRAIN, June 2003, URL:http://www.grain.org/briefings/?id=121 xii Andrew Mushita, FARMERS RIGHTS AND AGRICULTURAL BIODIVERSITY: WHAT RIGHTS DO FARMERS HAVE IN TERMS OF THEIR PLANTING MATERIALS, COMMUNITY TECHNOLOGY DEVELOPMENT TRUST (CTDT), Zimbabwe xiii T. Cottier and M. Panizzon. LEGAL PERSPECTIVES ON TRADITIONAL KNOWLEDGE: THE CASE FOR INTELLECTUAL PROPERTY PROTECTION, Journal of International Economic Law, 2004, pp. 371399. xiv US patent on Indian variety basmati rice, Australian claim to Iranian and Indian Chickpea variety, US claim on Malaysian variety Tongkat Ali, University of Massachusettes patent on Philippine Yew tree, US claim over Thailand variety jasmine Rice etc. xv Dr. Anitha Ramanna, INDIAS POLICY ON GENETICALLY MODIFIED CROPS, Asia Research Centre Working Paper 15, 2006 xvi Case was registered against Navbharat Seeds India Ltd. by Monsanto India against deriving a new variety out of Monsanto produced Bt Cotton seeds xvii Niranjan C. Rao, PLANT VARIETY PROTECTION AND PLANT BIOTECHNOLOGY PATENTS: OPTIONS FOR INDIA, Allied Publishers Ltd., New Delhi 1990 xviii Supra at 3
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xix
Dr. Anitha Ramanna, INDIA'S POLICY ON IPRS AND AGRICULTURE: RELEVANCE OF FAO'S NEW INTERNATIONAL TREATY, Economic and Political Weekly, Vol. 36, No. 51 (Dec. 22-28, 2001), pp. 4689-4692, URL:- http://www.jstor.org/stable/4411493 xx The Protection of Plant Varieties and Farmers Rights (PPV&FR) Act, 2001, Sec. 39 (1) (iv) : A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act : P r o vided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act. Explanation : For the purposes of clause (iv), branded seed means any seed put in a package or any other container and labeled in a manner indicating that such seed is of a variety protected under this Act. xxi The PPV & FR Act, 2001, Section 18 (1) (i) says that the particulars such as affidavit, filled form, passport data of parental line, brief description of the material and declaration regarding its lawful acquisition is not required for registration of farmers variety. xxii The PPV & FR Act, 2001, Section 26 (5) : While disposing of the claim to benefit sharing, the Authority shall explicitly indicate in its order the amount of the benefit sharing, if any, for which the claimant shall be entitled and shall take into consideration the following matters, namely :(a) the extant and nature of the use of genetic material of the claimant in the development of the variety relating to which the benefit sharing has been claimed. ( b) the commercial utility and demand in the market of the variety relating to which the benefit sharing has been claimed. xxiii The PPV & FR Act, 2001, Section 41 (1): Any person or group of persons (whether actively engaged in farming or not) or any governmental or nongovernmental organization may, on behalf of any village or local community in India, file in any centre notified, with the previous approval of the Central Government, by the Authority, in the Official Gazette, any claim attributable to the contribution of the people of that village or local community, as the case may be, in the evolution or any variety for the purpose of staking a claim on behalf of such village or local community. xxiv The PPV & FR Act, 2001, Section 39 (2): (2) Where any propagating material of a variety registered under this Act has been sold to a farmer or a group of farmers of any organization of farmers, the breeder of such variety shall disclose to the farmer or the group of farmers or the organization of farmers, as the case may be, the expected performance under given conditions, and if such propagating material fails to provide such performance under such given conditions, the farmer or the group of farmers or the organization of farmers, as the case may be, may claim compensation in the prescribed manner before the Authority and the Authority, after giving notice to the breeder of the variety and after providing him an opportunity to file opposition in the and after providing him an opportunity to file opposition in the prescribed manner and after hearing the parties, may direct the breeder of the variety to pay such compensation as it deems fit, to the farmer or the group of farmers or the organization of farmers, as the case may be. xxv The PPV & FR Act, 2001, Section 44: A farmer or group of farmers or village community shall not be liable to pay any fees in any proceeding before the Authority or Registrar or the Tribunal or the High Court under this Act or the rules made thereunder. xxvi The PPV & FR Act, 2001, Section 3: The Central Government shall, by notification in the Official Gazette, establish an Authority to be known as the Protection of Plant Varieties and Farmers Rights Authority for the purposes of this Act. xxvii The PPV & FR Act, 2001, Section 43: The Central Government shall constitute a Fund to be called the National Gene Fund. xxviii The PPV & FR Act, 2001, Section 8: It shall be the duty of the Authority to promote, by such measures as it thinks fit, the encouragement for the development of new varieties of plants and to protect the rights of the farmers and breeders. xxix The PPV & FR Act, 2001, Section 47 says that compulsory license may be granted by the authority when the propagating material or seed is not available to the public at reasonable price and quantity.
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xxx
The PPV&FR Act, 2001 Section 29 (1): No registration of a variety shall be made under this Act in cases where prevention of commercial exploitation of such variety is necessary to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment. xxxi Prof. N.S. Gopalakrishnan, PROTECTION OF FARMERS RIGHT IN INDIA: NEED FOR LEGISLATIVE CHANGES, Cochin University Law review, 2001, pp.105-116 xxxii Vandana Shiva, Protection of Plant Varieties in India, 1996; Usha Menon, Trips Negotiation and Indian Agriculture, JSCI IND RES, Vol 52 (1993), p.296 xxxiii Section 19
xxxiv xxxv
Supra at 32
Philippe Cullet, REVISION OF THE TRIPS AGREEMENT CONCERNING THE PROTECTION OF PLANT VARIETIES, The Journal of World Intellectual Property (1999), 2 (4): 617-656. xxxvi Ibid xxxvii Supra at 32 xxxviii Philippe Cullet, FARMERS RIGHTS IN PERIL, Frontline, 1 April 2000 xxxix Supra at 32 xl Suman Sahai, PLANT VARIETY PROTECTION AND FARMERS RIGHTS LAW, Economic and Political Weekly, 36 (35):3338-3342.
xli
Niranjan Rao, INDIAN SEED SYSTEM AND PLANT VARIETY PROTECTION, Economic and Political Weekly, 2004, 39(8): 845-852.
xlii
The classic property rights concept and its significance in the case of farmers rights have been discussed in detail in the fourth chapter.
xliii
Biswajit Dhar and Sachin Chaturvedi, INTRODUCING PLANT BREEDERS' RIGHTS IN INDIA: A CRITICAL EVALUATION OF THE PROPOSED LEGISLATION, Journal of World Intellectual Property, 2005, 1 (2): 245 262. xliv Supra at 32
xlv
It is to be noted that this provision shares the norms provided under the FAO Treaty which envisages right to participation as an important content of farmers rights. xlvi Jakkrit Kuanpoth, NEGOTIATIONS TOWARD A FREE TRADE AREA: US DEMANDS FOR GREATER IPR PRIVILEGES, URL:- www.grain.org/rights/?id=28 xlvii Roopam Singh and Ranja Sengupta, THE EU INDIA FTA IN AGRICULTURE AND LIKELY IMPACT ON INDIAN WOMEN, Centad, Paper-III,December, 2009 xlviii Ashok B. Sharma, DRAFT OF SEED BILL MAY BE DELAYED, Financial Express, 11 April 2005 xlix Section 13.1 of the Seed Bill, 2004 l Pratibha Brahmi, Sanjeev Saxena and B. S. Dhillon, THE PROTECTION OF PLANT VARIETIES AND FARMERS RIGHTS ACT OF INDIA, CURRENT SCIENCE, VOL. 86, NO. 3, 10 FEBRUARY 2004, p. 396
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ELUSIVE QUEST FOR RIGHT TO ACCESS INTERNET IN THE INDIAN LEGAL LANDSCAPE
UDAY SHANKAR AND SAURABH BINDAL As the authors sketch the last words to this piece, they sit back and reflect whether this word of theirs will be known to the world morrow, because they apprehend that with the growing day, the dusk delved by the ineluctable State will shroud their right to access internet. Revolution of internet has engulfed each and every nation alike. In todays era, contemplation of a world, without internet, has become last to impossible. This piece forays into the discussion on accessibility of internet as a perceived human right. The universality of human rights stamps an inherent attribute to such rights. This is all the more true for civil and political rights. Not to mention, that some of the socio-economic rights have also started drawing the flavor of inalienability in the recent era. That is not to say that the State cannot make progressive laws to further the cause of these rights, but that certainly means that the State cannot make laws so as to bereave a person of these rights. Earlier, the civil and political rights were thought to be a class in themselves. This is not the case today. Social and economic rights have also been fathomed as the wheels of the chariot of human rights, tagged along with the civil and political rights. Together they constitute what are called human rights. The inflation in the content of human rights, over a period of time, suggests the changing vicissitudes of life. From generation to generation, the concept and context of autonomy and dignity has experienced a transformation. Social and economic cluster of rights have been inflated for ensuring higher parameters of fruitful and dignified living. This is done to ensure that the State does not shirk from its responsibilities to provide a meaningful life. The leitmotif of this piece is not to regurgitate over the scholarly writings available on the chosen topic. Instead it provides a lightening rod for placement of right to access internet under the parasol of the Indian Constitution. This issue draws all the more significance after the Indian Government, who represents the executive wing and is branded
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in Part III of the Indian Constitution as Statei, has shown indulgence in activities related to stalling the growth of internet. THE INDIAN CONSTITUTION AND THE GROWING PANOPLY OF SOCIO- ECONOMIC RIGHTS: Indian Constitution came as a result of the hard fought struggle to resuscitate the hopes and aspirations of people. It took India, three years to draft the Indian Constitution, post independence. With the civil and political liberties at stake, it was hard to visualize a world in which the socio-economic freedoms can be made a reality. The drafters of the Indian Constitution burnt the midnight lamp to come up with reams of paper, which not only bound the heart and soul of this Sovereign, Socialistic, Secular, Democratic, Republic, but also gave to this barren land the spirit and flesh to strive for the struggle for existence. The heart represents the civil and political freedoms and the socio-economic freedoms tie the flesh. Civil and political rights were placed by the drafters along with the socio-economic rights, so as to appraise the values which the freedom struggle imbued on them. The entrenched civil and political rights came as the Fundamental Rights under the text of the Constitution of India, 1950 and the socio-economic rights acquired the pedestal of Directive Principles of State Policy. Besides, socio-economic rights can be found interspersed between the chapter on Fundamental Rights and Directive Principles of State Policy. Socio economic rights were made non-adjudicable in India, because the same require political, economic propriety for their enforcement. In recent years innumerable rights from the socioeconomic cluster, have made a transformation from the charter of directives to the cover of fundamental rights. This significant drift establishes the fact that the content of human rights shows generational shift along its trajectory. The extension of the panorama of human rights under Article 21ii of the Constitution of India, 1950, proffers one instance of the growing umbrella of human rights. The extension of human rights along the very periphery of Article 21 endorses the fact that though the essence of each right might be to act as a means to achieve the goalpost of right to life, but then, each right in itself stands on the pedestal of human rights. Drawing this analogy, it can be sufficiently inferred that it has been entrenched in the struggle for existence that
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desires become aims and with perseverance, they eventually turn the roads towards a guarantee. Guarantee of socio-economic rights ensures that the State indulges itself in taking positive measures for the attainment of such fundamental directives for crusading towards acknowledging the essence of human existence. Guarantee on the flip side, when read in light with the civil and political rights makes State, not to indulge in activities which lead to snatching the fundamental freedoms ingrained with an individual. Both work hand in hand. The distinction between both these guarantees lies in their mode of attainment and the limits appended to them. The Indian Supreme Court in Minerva Mills v. Union of Indiaiii, allayed the raised conflict between the directive principles and the fundamental rights by stating that The effect of giving greater weightage to the constitutional mandate in regard to Fundamental Rights would be to relegate the Directive Principles to a secondary position and emasculate the constitutional command that the Directive Principles shall be fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws. It would amount to refusal to give effect to the words fundamental in the governance of the country" and a constitutional command which has been declared by the Constitution to be fundamental would be rendered non- fundamental. The result would be that a positive mandate of the constitution commanding the State to make a law would be defeated by a negative constitutional obligation not to encroach upon a Fundamental Right and the law made by the legislature pursuant to a positive constitutional command would be delegitimized and declared unconstitutional. This plainly would be contrary to the constitutional scheme because the Constitution does not accord higher place to the constitutional obligation in regard to Fundamental Rights over the constitutional obligation in regard to Directive Principles and does not say that the implementation of the Directive Principles shall only be within the permissible limits laid down in the Chapter on Fundamental Rights. RIGHT TO ACCESS INTERNET AND THE INDIAN CONSTITUTION:
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Access to internet is both the means and an end in itself for the attainment and fulfillment of a dignified life. Only christening internet as facilitator for pursuance of human rights, and not a right in itself, bereaves one of the pith which swathes the ever expanding jurisprudence of human rights. Puissant powers across the world have taken significant strides towards development of their economies on the milestone of internet. Phantasmagoria of human rights calls for acknowledgement of the very fact that change in the strata of rights has always been the case. Inflation in the content of human rights, over the period of time, justifies the cause of recognition of internet as a human right. Credence to the very fact that human rights are ever expanding and cannot be ever stalled through the curtains of societal prejudices can be drawn from the precedents set down by divers countries across the globe, who have always endeavoured to grow the pith and marrow of the charter on human rights. Latterly, all that which could have never been envisaged in the future as a human right has sprung from the fundamental text of human rights as a guarantee. Internet acts as a rung, which forms the ladder of rights, connecting the innate desires with their guarantee. As inherent as they may sound, they play a quintessential role in lifting the value of a human being. Human values ensure dignified existence. A step in the ladder by its very nature forms the part and parcel of the ladder. Such is also the case with the right to access internet. Wings of right to access internet swaddle in its garb plethora of other freedoms and rights, which in todays era, if read alone, would lead to departure from the enshrined principles of Justice, Equality, Liberty and Fraternity, sketched along the Indian Constitution, 1950. Within the four corners of the Indian Constitution, 1950, one can stretch the reach of right to access internet. Right to freedom of speech and expression, right to assemble, right to form associations or unions, right to practice any profession, or to carry any occupation, trade or business, right to life, right to education are some of the fundamental rights which get linked to the right to access internet in no uncertain terms in the Indian landscape. RIGHT TO KNOW AND RIGHT TO ACCESS INTERNET:
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Freedom of speech and expression embodies within it the right to know. Expression only becomes formulated by recognition of right to know. iv This is also true for shaping speech in a democratic nation. Article 19 provides for freedoms of citizens of India. Access to information not only strikes to build a democracyv, it also engages in the realization of other human rights.vi The Indian Supreme Court for the very first time, in the case of State of U.P. v. Raj Narain
and Orsvii., while articulating the right to information as a fundamental right under Article
19(1)(a) of the Constitution said that In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing...The Supreme Court, following the beaten path in the case of Indian Express Newspapers (Bombay) Private Ltd. and Ors. etc. v. Union of India and
Ors viii ., said that All members of society should be able to form their own beliefs and
communicate them freely to others. In sum, the fundamental principle involved here is the people's right to know. Freedom of speech and expression should, therefore, receive a generous support from all those who believe in the participation of people in the administration... Both these cases underscore the importance of right to information in establishing a society which is built on the percussion of democracy. While treading on what ought to be covered under the parasol of right to information and what is to be left, the Supreme Court in the case of S.P. Gupta Vs. Union of Indiaix, said that The concept of an open government is the direct emanation from the right to know which seems to be implicit in the right of free speech and expression guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to the functioning of the Government must be the rule and secrecy an exception..." Emphasizing on the role played by freedom of speech and expression in cultivating the right of information, in Secretary, Ministry of Information and
Broadcasting, Government of India and Ors. v. Cricket Association of Bengal and Ors x, the
Court said that "The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-fulfilment. It
enables people to contribute to debate on social and moral issues. It is the best way to find a truest model of anything, since it is only through it that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts". In any organized society, right to live as a human being is not ensured by meeting only the animal needs of a man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human beings are designed to achieve this object.xi Again in Reliance Petrochemicals Ltd. v. Proprietors of
Indian Express Newspapers Bombay Pvt. Ltd., xii Court recognised that the Right to
Information is a fundamental right under Article 21 of the Constitution. The Court said that Right to know is a basic right which citizens of a free country aspire in the broader horizon of the right to live in this age in our land under Article 21 of our Constitution. That right has reached new dimensions and urgency. That right puts greater responsibility upon those who take upon themselves the responsibility to inform. Right to know, though not being part of the textured Article 19 of the Constitution of India, 1950 has been recognized by the Indian Apex Court as a fundamental right. Scholars might argue that right to access internet breaches the fundamentals of human rights and strikes to claim existence over the medium. It is underlined that latterly internet has grown from a mere medium to an expression. Furthermore, the Indian Apex Court has time and again recognized mode of forming expressions as part of freedom of speech and expression. The right of citizens to exhibit films on doordarshan was recognized by the Court in Odyssey
Communications (P) Ltd. v. Lokvidayan Sangathanxiii. In PUCL v. Union of India,xiv Indian

Supreme Court acknowledged the fact that telephone is also a means of expression. Theses epitomize the fact that medium also becomes part of expression and has been acknowledged as part and parcel of freedom of speech and expression at various instances. Even if a right is not specifically mentioned in Article 19(1) it may still be a fundamental right covered by some of the Articles, but only if it is an integral part of some named fundamental right or partakes the same basic nature and character as that fundamental right. As for example,
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freedom of the press is covered by Article 19(1)(a), though not specifically mentioned therein.xv RIGHT TO ASSEMBLY AND RIGHT TO ACCESS I NTERNET: Article 19(1)(b) of the Indian Constitution provides for the right to formation of peaceful and unarmed assembly. Right to assemble over internet provides a facet of the growing capital and labour intensive industrialized world. Today, the import of the term assembly cannot be limited to only physical assemblage. Right to form assembly reaches its desired goal through recognition of the right to access internet. Right to access internet not only furthers the cause of freedom over internet, but also bolsters the advancement of different freedoms penned along the Indian Constitution. In Himat Lal K. Shah v. Commissioner of
Policexvi, the Indian Supreme Court, while articulating the boundaries of right to assembly,
said that at the root of this concept lies the citizens right to meet face to face with others for the discussion of their ideas and problems, and public streets are the 'natural' places for expression of opinion and dissemination of ideas public meeting in open places and public streets forms part of the tradition of our national life. In the pro-Independence days such meetings have been held in open spaces and public streets and the people have come to regard it as a part of the privileges and immunities. The framers of the Constitution were aware that public meetings were being held in public streets and that the public have come to regard it as part of their rights and privileges as citizens. Transposing this dictum in morrows changing world, it can be evidently buttressed that right to access internet so as to pursue the cause of right to assembly over internet, which does not represent a physical space, becomes the need of the hour. RIGHT TO FORM ASSOCIATION AND RIGHT TO ACCESS INTERNET: Article 19(1)(c) of the Constitution provides for right to form association. The term association has a very wide import. The right to form association implies that several individuals get together and form voluntarily an association. Right to access internet touches this right in unambiguous terms. Right to form association includes the right to
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continue the association.xvii That being it, right to access internet, in this fast moving world becomes a transitional right for formation and continuance of associations. Right to access internet links itself with the formation of association and acts as a means to achieve this end. RIGHT OF TRADE AND OCCUPATION AND RIGHT TO ACCESS INTERNET: Article 19(1)(g) of the Constitution of India, 1950 guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. In Sodan Singh
v. New Delhi Municipal Committeexviii, the Indian apex Court said that the guarantee under
Article 19(1)(g) extends to practice any profession, or to carry on any occupation, trade or business. The object of using four analogous and overlapping words in Article 19(1)(g) is to make the guaranteed right as comprehensive as possible to include all the avenues and modes through which a man may earn his livelihood. In a nut-shell the guarantee takes into its fold any activity carried on by a citizen of India to earn his living. Such being it, right to access internet, taking cognizance of the present day developments, becomes a means and an end in itself to achieve the enunciated freedom. Nothing can be envisaged without the use of internet. Livelihood as pointed by the honourable Court rests on the four pillars of making the ends meet. Every profession, occupation, trade and business finds its synergistic linkage with the internet, barring few examples. Thus, linkage of right to access internet can also be attained through a constructive reading of Article 19(1)(g). RIGHT TO LIFE AND RIGHT TO ACCESS INTERNET: Article 21 of the Constitution of India stands as the vanguard of freedoms related to lifexix and personal liberty.xx To any civilized society, there can be no attributes more important than the life and personal liberty of its members.xxiIn Chameli Singh v. State of U.Pxxii, the Court said that right to live in any civilized society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilized society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. The right to life, under the protection of
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Article 21, has been stretched time and again to include the human rights jurisprudence under its ambit.xxiii In Sodan Singh v NDMC,xxiv the Supreme Court had held that: In view of the global development in the sphere of human rights these judicial decisions are a strong pointer towards the recognition of an affirmative right to the basic necessities of life under Article 21. In Francis Coralie v Union Territory of Delhi, xxv the Court read under the enshrined right of life, the right to live with dignity. In Unni Krishnan v. State of A.P.xxvi, the Court said that if Article 21, which is the heart of fundamental rights, has received expanded meaning from time to time there is no justification as to why it cannot be interpreted in the light of directive principles. Right to life guaranteed under Article 21 now includes right to livelihood, xxvii right to health,xxviii right to freedom from noise pollution, xxix right to inexpensive medical care,xxx right to waterxxxi right to free legal aid at the cost of the State to an accused who cannot afford legal services for reasons of poverty,xxxii right to go abroadxxxiii, right to privacyxxxiv, right against solitary confinementxxxv, right to speedy trialxxxvi, right against handcuffingxxxvii, right against delayed executionxxxviii, and right to shelterxxxix. Such growth of human rights jurisprudence in India, along the periphery of Article 21 of the Constitution of India, 1950 solicits for the unhindered acknowledgement of right to access internet in the Indian judicial landscape. Accessibility to material resources have been time and again acknowledged as fundamental rights under Article 21 of the Constitution of India. This does not negate the fact that accessibility to material resources does not represent a socio-economic right. But it affirms the fact that socio-economic rights scripted under the directives are to go hand in hand with the civil and political rights. Though the mode of realization of these two streams might be different, the sea in which their tributaries merge lead to attainment of human rights at the horizon. DIRECTIVE PRINCIPLES AND RIGHT TO ACCESS INTERNET: The Directive Principles represent the benchmark of socio-economic rights in the Indian Constitution. Though, they are not the only source of socio-economic rights in the Indian
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Constitution. Articles 38 importune the State to undertake social measures and remind it to create the kind of society; the Constitution expects it to create. Article 39(b) rests a positive obligation on the State to allocate material resources in such a fashion that does not result in heightening of inequalities amongst people and amongst regions.xl The term material resources mean and include all resources, natural and manmade, public and privately owned.xli The object of the policy as envisaged under Article 39(b) and 39(c) is to effectuate the mandate of the Constitution in the Preamble of the Constitution, namely social justice and dignity of person with equal status.xlii The Constitution of India clearly articulates for the allocation of resources in a meaningful way for the attainment of social and economic equality. Furthermore, the mandate of Article 47 xliii obligates the State to maintain a standard of living. Social and economic rights are claims of individuals to lead minimum decent life. Human beings must be guaranteed the basic means of sustaining life and denial of these would amount to blatant violations of human rights.xliv Right to access internet even if is presumed as a material resource, calls for its underpinning in the text of the Indian Constitution. Right to access internet also gets its support from Article 38, 39(b), 39(c) and 47 of the Indian Constitution. All obligate the State to vouch for measures to pursue the cause of social welfare. Latterly, the ambit of social welfare has seen inflation. Right to access internet can definitely find its place in the realization of these rights. DENOUEMENT: Both civil and political rights and socio-economic rights form the cluster of human rights. It is also acknowledged that the requirement of resources is equally important for both the group of rights. Certain element of conflict in implementation of rights is more or less inevitable.xlv But such conflict is not sufficient to take away the universal character of these rights. It has been successfully established that both group of rights subscribe to the same nature of obligations. All human rights are required to be secured through three kinds of
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duties. There is, first, the duty to avoid depriving a person of some necessity; the duty to protect them from deprivation; and the duty to aid them when deprived. xlvi All human rights, including social and economic rights, ensure dignified and decent life to an individual. The two categories of rights must be seen in relational nature. Comprehensiveness of rights must be construed in relation to other rights. For example, right to life must be understood along with right to health. A claim involving rights may not, and very often does not, implicate only one right within one so-called category of rights. Rather one can only make sense of many claims if one has the latitude to relate different interests at stake without being locked into a mentality or institutional practice of slotting the claim into one label or another.xlvii Access to internet thus, should be considered as a right in itself in India.
See generally, Article 12, Constitution of India, 1950. Article 21, Constitution of India, 1950 states that "No person shall be deprived of his life or personal liberty except according to procedure established by law." iii A.I.R 1980 SC 1789. iv Freedom of expression has four broad special purposes to serve: (i) it helps an individual to attain self fulfilment, (ii) it assists in the discovery of truth, (iii) it strengths the capacity of an individual in participating in decision making, and (iv) it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change. Indian Express Newspapers v. U.O.I, (1985) 1 SCC 641. v "No democratic Government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the Government. It is only when people know how Government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy." S.P. Gupta v. Union of India (1981) Suppl. SCC Page 87. vi Jagwanth, Saras (2002), The Right to Information as a Leverage Right, in The Right to Know, The Right to Live: Access to Information and Socio-Economic Justice. Calland, Richard and Tilley, Allison (eds.) Cape Town: Open Democracy Advice Centre pp. 3-16; see also Geoffrey A Hoffman, In Search of an International Human Right to Receive Information, 25 Loy. L.A. Int'l & Comp. L. Rev. 165, 2003. vii (1975) 4 SCC 428. viii (1985) 1 SCC 641. ix (1981) Suppl. SCC Page 87. x 1995 SCC (2) 161). xi Chameli Singh v. State of U.P, (1996) 2 SCC 549. xii (1988) 4 SCC 592. xiii (1988) 3 SCC 410. xiv (1997) 1 SCC 301. xv Maneka Gandhi v. U.O.I, (1978) 1 SCC 248; see also Bennett Coleman & Co. v. U.O.I, (1972) 2 SCC 788; see also I.E Newspapers (Bombay) Pvt. Ltd. v. U.O.I, (1985) 1 SCC 641; see also Arundhati Roy, In re, (2002) 3 SCC 343. xvi AIR 1973 SC 87. xvii Damyanti v. Union of India, AIR 1971 SC 966. xviii AIR 1989 SC 1988.
ii
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xix
(Right to life will take within its sweep, the right to food, clothing, decent environment and reasonable accommodation to live in.) Shantistar Builders v. Narayan, (1990) 1 SCC 520. xx Article 21, Constitution of India, 1950 states that "No person shall be deprived of his life or personal liberty except according to procedure established by law." xxi Kehar Singh v. U.O.I, (1989) 1 SCC 204. xxii (1996) 2 SCC 549. xxiii (Today human rights jurisprudence in India has a constitutional status and sweep by virtue of Article 21 so that this magna carta may well toll the knell of human bondage beyond civilized limits.) Sunil Batra(II) v. Delhi Administration, (1980) 3 SCC 488. xxiv (1989) 4 SCC 155. xxv (We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.) AIR 1981 SC 746 xxvi (1993) 1 SCC 645. xxvii Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180. xxviii Paschim Banga Khet Mazdoor Samity v. State of W.B., AIR 1996 SC 2426. xxix Farhad K. Wadia v. Union of India, (2009) 2SCC 442. xxx Sukesh Chander Khajuria v. State, AIR 1994 J&K 73. xxxi State of Orissa v. Govt. of India, (2009) 5 SCC 492. xxxii M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544. xxxiii Satwant Singh v. A.P.P.,New Delhi, AIR 1967 SC 1836. xxxiv Govind v. State of M.P., AIR 1975 SC 1378. xxxv Sunil Batra v. Delhi Administration, AIR 1978 SC 1675. xxxvi Hussainara v. Home Secretary, Bihar, AIR 1979 SC 1360. xxxvii Prem Shankar v. Delhi Administration, AIR 1980 SC 1535. xxxviii T.V. Vatheswran v. State of Tamil Nadu, AIR 1983 SC 362. xxxix Shantisar Builders v. Narayan Khimlal Totame, AIR 1990 SC 630.
Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 4 SCC 376; see also State of Bihar v. Kameshwar Singh, AIR 1952 SC 252. xli Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. , AIR 1983 SC 239; see also Jilubhai v. State of Gujrat, AIR
xl
1995 SC 142.
xlii xliii
State of W.B v. Kailash, (1997) 2 SCC 387.
Article 47 of the Indian Constitution, 1950 states that 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. xliv See, H. Shue, Basic Rights, Affluence and US Foreign Policy , Princeton University Press, Princeton, 1996. xlv Waldron, J., Rights in Conflict, 99 Ethics 503-19 (1989), 503. xlvi H. Shue, Basic Rights, Affluence and US Foreign Policy , Princeton University Press, Princeton, 1996. xlvii Scott, C., Reaching Beyond (Without Abandoning) the Category of Economic, Social and Cultural Rights, 21 Hum. Rts. Q. 633-660,(1999), 642.
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COMPARATIVE FEDERALISM: TESTING INDIAN CONSTITUTION ON THE YARDSTICS OF IVO D. DUCHACEK

YOGESH PRATAP SINGH
Personally, I do not attach any importance to the label which may be attached to it-whether you call it a federal Constitution or a unitary constitution or by any other name. It makes no difference so long as the Constitution serves our purposes.
----------Dr. Rajendra Prasad An acute problem today concerns the nature of the constitutional structure of India. Does the Indian Constitution represent Federalism or not? Some constitutional experts have described the Indian Constitution as quasi-federal.i Others have used stronger words to say that it is only federal in appearance, but in essence and spirit it is unitary.ii Hence an enquiry into the working of federal government begins of necessity with some discussions about the meaning of the term.iii There is no accepted definition or theory of federalism. Nor is there and agreement as to what federalism is exactly. The term itself is unclear and controversial.iv The idea of federalism in the modern sense can hardly have reached any political thinkers till the time when the American constitution was drawn up.v It is often used to describe a process of combining territorial communities that previously had not been directly joined into a new unit of common interest, policy and action, or the opposite process of deconcentration of power (that is, decentralization that endows territorial units with autonomous sources of authority). Federalism in terms of restraint on the political power vi is said, the juxtaposition and counterbalance of two territorially
differentiated sets of state sovereignties. The existence of interfederal barriers restricts the power of the central state toward the member states and vice-versa.vii In contradistinction to
the monolithic unitary state organisation, federalism presents a system of territorial pluralism.viii In addition, federalism is also a term used to describe the result or the tools of
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the federalizing process-a constitutional federal system and its institutions. At times, the federalizing process may even refer to ecumenism.ix One of the famous shorthand definitions of federalism speaks of an indest ructible union of indestructible unitsx which seems on the one hand to separate a federal from a confederal systemxi by ruling out secession and on other hand to distinguish a federal from a unitary system by ruling out total elimination of provincial autonomy. The result is a compromise between two territorial forces pulling in opposite directions: One toward national unity, which if excessive, could suppress diversity and eliminate provincial autonomy, and the other toward diversity, which, if excessive, could dissolve the federal nation into its several constituent units.
Constitution
Division of Power
Federal Authority
States
12 3 4 5 6 7 8 9 10 11 12 13 14 Federal District Federal Territories 15 16 17 18 19 20 21 22 23 24 25 26 27 28
By a federal system we mean a constitutional division of power between one general governmentxii (that is to have authority over the entire national territory) and a series of sub national governmentsxiii (that individually have their own independent authority over their own territories, whose sum total represents, almost the whole national territory.
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Federalism operates as a safety valve for dissent, discomfort, and dissatisfaction, channelling these three ideas into relatively more manageable outlets of constitutional structure. Commentators believe that Indian federalism has quarantined conflicts within states or substate units and thus successfully prevented national conflagration. xiv Top down Indian federalism is a prominently unitary or, at best, a quasi-federal structure, as opposed to a bottom up model as in the United States, where virtually sovereign states cede sovereignty to form a union. Surprisingly, over the last sixty years, this quasi-federal entity has become increasingly more federal and considerably more decentralized. It has therefore been correctly described as inadvertent or unintended federalism.xv Administrative efficiency, legislative and executive flexibility, and local initiative, participation, and responsibility justify decentralization in both unitary and federal systems. But in a federalizing process there are other important goals to achieve. Federation is not an end in itself but a means to attain some or all of the following objectives: 1. Protection against external pressures, especially military dangers, can be achieved. 2. Benefits to all may be derived from binging the diplomatic and military assets of member units into a common poolbenefits that may be translated into greater internal security and progress or, possibly, external expansion. 3. Economic advantages may accrue to all from planning, working, and exchanging products in larger market and production area. 4. The federal process is often also a means of preserving rather than building a new national unity out of many components. By timely concessions to, and constitutional recognition of, territorial communities and their desire for self-rule, a formerly unitary nation-state may be re-formed and its national unity saved. Ivo D. Duchacek provides ten yardsticks of federalism in the form of ten questions to be directed at the national systems that are considered to be or claimed to be federal. YARDSTICK ONE: EXCLUSIVE CONTROL OVER FOREIGN RELATIONS
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(Has the Central Authority exclusive control over diplomacy and defence as befits a nationstate in its relations with other nation-states?xvi). Whether the end of a federal process is to
create and maintain a new nation or to preserve and old one on a new (federal) basis, the emphasis is on making the federal nation-state a separate, sovereign, and identifiable unit vis-a-vis other nation-states. As with unitary states, a federal unions main purpose is to present itself on the international scene as possessing the power and the will to speak on behalf of its component units with one single legitimate voice; however, this purpose is in contradistinction to an alliance or a league of states. Unless the component units agree to this basic point, there is little likelihood that an alliance can transform itself into a federal nation; one of the reasons for the failure of the efforts in East Africa to combine Uganda, Tanzania, and Kenya into one federation was the insistence of the leaders of Uganda on retaining the right to conduct separate Ugandan foreign policy. In a federation, then, it is the national (federal) government in whose hands lies the ultimate control over the major issues in foreign policy and the conduct of peaceful or violent international relations. The tasks of both the diplomatic service and the armed forces mirror the preoccupation, interests, and goals of the federal nation rather than those of nations territorial components. The United States Constitution, for instance, prescribes that:xvii
No state shall enter into any Treaty, Alliance or Confederation.......No State shall, without the consent of Congress, keep Troops, or Ships of War in time of Peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay.
Similarly, 1848 Constitution of Switzerland gives the federal government the sole right to
declare war and conclude peace, and to make alliances and treaties, particularly customs and commercial treaties with foreign nations.xviii The Swiss cantons can only exceptionally
engage in minor direct diplomatic negotiations with neighbouring nations (boundary and customs problems and so on).
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Indian Constitution in its seventh schedule includes
entries related to diplomacy and
defence, war and peace, treatise, the United Nations, pilgrimages outside India, piracies and crimes committed on the high seas or in the air and offences against international law in the Union list, which gives power to the federal government.xix In the text of few constitutions that claim to be federal and not confederal, there are exceptions to this rule. The seemingly most important exception may be found in the Soviet Constitution of 1936 that was amended in 1944 to include the following provisions:xx Each Union Republic has the right to enter into direct relations with foreign States and conclude agreements with foreign States and exchange representatives with them. Each Union Republic has its own Republican military formations.xxi By amending his own constitution, Stalin transformed the Soviet federal union, on paper, into a very loose league of sixteen sovereign socialist republics. We say a very loose league because even the United States Confederation of 1781 refused to give its thirteen components states the right of direct diplomatic relations with foreign nations.xxii Similar provisions for federal monopolies are also found in the Indian Constitution. The Union government in India has absolute control over these two matters of diplomacy and defence. Article 246 read with Schedule VII gives such powers only to the Union Government. Schedule VII specifies the powers or the subject matter on which the Union Government, the state governments and both concurrently can exercise power. List I of the Schedule VII has the following Entries which ultimately fall under the exclusive jurisdiction of the Union Government.
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LIST I (UNION LIST): SCHDULE VII 1. Defence of India and every part thereof including preparation for defence and all such acts as may be conductive in times of war to its prosecution and after its termination to effective demobilization.xxiii 2. Naval, military and air forces; any other armed forces of the Union.xxiv 3. Naval, military and air force works.xxv 4. Foreign affairs, all matters which bring the Union into relation with any foreign country.xxvi 5. Diplomatic, consular and trade representation.xxvii 6. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.xxviii 7. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.xxix 8. War and Peace.xxx These entries speaking to the powers of the Union Government are exclusive and the States cannot interfere with the exercise of these powers. Along with these Entries, there are other entries in the same list which go to support the Union Government.xxxi Over and above these Entries, Article 53(2) vests the President with the Supreme Command of the Defence Forces of the Union.xxxii Article 352, 353 and 355 also speak about the Unions power during the times of national emergency. Article 51 which speaks about the promotion of international peace and security is also provided under the Directive Principle of State Policy.xxxiii The existence of these powers under the Indian Constitution is more elaborate than in the American Constitution. Thus the Indian Constitution answers the first of the ten yardsticks of federalism more positively than the American Constitution. YARDSTICK TWO: IMMUNITY AGAINST SECESSION
(Is the federal union constitutionally immune against dissolution by secession? xxxiv ) No
nation-state is, or can be, immune against territorial secession. In some instances,
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constitutions clearly forbid it or proclaim or imply that the union is eternalxxxv and therefore no territory can secede. The United States Constitution does not contain any explicit interdiction of secession. Implicitly it may be argued that the Preambles first sentence, which stresses a mor e perfect Union, should be read with conjunction with the Articles of Confederation, which it amended and which had committed the thirteen states to a perpetual union. In the first seventy years of the United States existence, there could be some doubt about the right of national self-determination of the federal components. The Civil War, however, conclusively settled the question whether or not a state can constitutionally withdraw from the Union. In the words of the Supreme Court, ours is an indestructible union of
indestructible states.xxxvi
We may now read some of the provisions of Indian Constitution. Constitution declares: India, that is Bharat, shall be a Union of States.xxxvii It empowers Parliament to admit into the Union, or establish, new States on such terms and conditions as it thinks fit.xxxviii Further Parliament can by law form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State; increasing the area of any State; diminishing the area of any State; altering the boundaries of any State; or altering the name of any State. xxxix The proviso to that Article requires that the Bill for the purpose shall not be introduced in either House of Parliament except on the recommendation of the President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon. On a conjoint reading of these Articles, it becomes clear that Parliament has the right to form new States, alter the areas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity. Even names can be changed. Under Article 2 it is left to the Parliament to determine the terms and conditions on which it may admit any area into the Union or establish new States. In doing so, it has not to seek the concurrence of the State
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whose area, boundary or name is likely to be affected by the proposal. All that the proviso to Article 3 requires is that in such cases the President shall refer the Bill to the legislatures of the concerned States likely to be affected 'to express their views'. Once the views of the States are known, it is left to Parliament to decide 'on the proposed changes. The Parliament can, therefore, without the concurrence of the concerned State or States change the boundaries of the State or increase or diminish its area or change its name. These provisions show that in the matter of Constitution of States, Parliament is paramount. YARDSTICK THREE: INDEPENDENT SPHERE OF CENTRAL AUTHORITY
(Is the exercise of the Central Authority, as it reaches all citizens, directly independent of the individual approval and resources of the component units?xl)
In a federal system, powers are so divided that the general and regional governments are each, within a sphere, co-ordinate and independent,xli notes an English authority on the subject of federalism. Logically, an authority is not really divided unless its sectors can operate within their assigned sphere independently one from the other. If the central authority were politically and financially dependent in each of its moves upon the component units, we could define such an arrangement as an alliance or confederation, but we could not speak of an emergence of a federal nation and its government. How can some of the constitutions whose drafters label them as federal pass this third test, which aims at differentiating a confederal from a federal system? First, there is there is the issue of financial resources. Federal constitutions make the federal government independent of the constituent units by granting it the right to levy direct taxes and enforce the federal laws. This also implies that the rightful inhabitants of the federal state are federal citizens in addition toxlii or instead ofxliii their local citizenship. The federal government must be able to finance its operations, especially in view of the fact that it is, as we have indicated previously, in charge of international relations and defence; in modern times, the welfare functions have been added to the first two traditional ones.
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A guarantee of the right and power of the provincial government to finance its operations cannot and must not tax the federal power out of existence. This was partly the issue in the famous case McCulloch v. Maryland in 1819, when a bank (a quasi- governmental institution incorporated by the United States and established in Baltimore) issued notes in violation of a Maryland law that required all banks to pay an annual tax of 15,000 dollars or to pay a stamp tax on each bank not issued. The controversy was decided by the Supreme Court in favour of the federal government. In Chief Justice John Marshalls words:
A government intrusted with such ample powers [to lay and collect taxes, regulate commerce, conduct war, etc.], on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means.xliv
Some echo of this early American rule protecting federal enterprises against tax voraciousness of component units in a federation may be found in modern federal constitutions that must also protect atomic and conventional power plants and other economic enterprises established and run by a welfare federal government against the taxing powers of the states. The United States Constitution gave the Congress the power to lay and collect taxes, duties, imposts, and excises,xlv but until 1913, in principle direct taxes were to be apportioned among the several states according to population. In 1913, the Sixteenth Amendment gave the Congress the right to impose income taxes without apportionment among the several States, and without regard to any census or enumeration. In India, the Union Government is independent of the constituent units and can levy direct taxes and enforce federal laws. The Union finances national programmes to be implemented by the States. The tax heads or bases have been specifically mentioned in the Constitution itself, and divided between the Union and the States. The entire gamut of financial relations has been provided for under the constitution itself. Along with the tax bases mentioned in Schedule VII, Article 268 to 281 also speak about the tax sharing between them. Further, the Union property is exempted from the state taxes xlvi and vice
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versa.xlvii The lessons the Americans have learnt through McCulloch v. Maryland, have been
thus taken into consideration by the makers of the Indian Constitution. Further the Union Government can make grant-in-aid to the States every year.xlviii Thus, the Central authority is very much independent of the individual approval and resources of the component units with regard to the financial as well as other resources. YARDSTICK FOUR: AMENDING THE FEDERAL CONSTITUTION
(Who has the ultimate control over amendments to the federal Constitution?xlix)
If the American model of federalism were viewed as the only pure one, the fourth yardstick may be expressed as retention of veto over constitutional changes by a majority of, but not all, component units. According to many experts this is by far the most reliable yardstick of federalism when the text of constitutions is analyzed. If the ultimate control over constitutional changes is in the hands of all the component units, such a system, based on unanimity, seems not to have moved from an association of states to a new federal nation. A new supraterritorial identity, institutions, and power have not really been created if for any amendment the consent of every single component unit is required. If on the other hand, only a vote of the central parliament is required (with or without a subsequent plebiscite). Such a system, based on a national majoritarian principle, makes the amendatory process indistinguishable form that in a unitary system. This is so, for instance, in the Soviet case when a two thirds majority in both houses of the central parliament is sufficient to adopt any type of amendment , including one that would transform the Soviet federation into a unitary state and eliminate all fifteen union republics altogether . Similarly , the Yugoslav federal Constitution can be amended without ratification by the component republics; a popular referendum is, however, required when two of the chambers composing the
quinticameral Federal Assembly refuse to accept the motion to alter the constitution as passed by the Federal Chamber and the Chamber of Nationalities. Some constitutions distinguish between amendments that affect the federal distribution of power and those that do not do so; only in the first case is the ratification by the component units required. The Indian Pakistani Constitutions have such provisions.
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The problem with such a differentiation between federal and non-federal amendments is that a constitutional change that does not seem to affect the federal division of powers may ultimately, in conjunction with environmental changes, affect it in a major way. By contrast, in the United States, all amendments, even if they do not affect the federal distribution of power, require ratification by three fourths of the states. One type of amendment cannot be passed and ratified by even forty-nine states out of fifty; the last sentence of Amendatory Article 5 states that no State, without its consent, shall `be deprived of its equal suffrage in the Senate. This is considered the basic point of the whole American federal bargain, as expressed in the Connecticut Compromise at Philadelphia in 1787. Some legal experts have, however argued that the Amendatory Article could be amended and that its new version could eliminate the equal suffrage clause. In an abstract legal framework this may be so; in practice, it seems politically out of the question. Under the Indian Constitution the power and procedure for Amendments have been provided under Article 4,l Schedule VI and principally under Article 368 of the Constitution. The power to initiate the amendments is vested with the union in all the cases. There is no need for the ratification by the states for all amendments. However, Article 368(2) indentifies certain types of Amendments which essentially need the ratification by at least half of the states. The Amendments which need such ratification by at least half of the states are provided under Article 368 (2) (a) to (e).li Thus, it is clear that when Amendments are likely to be affecting the federal structure to some extent, ratification by not less than half of the States is necessary. The four yardsticks discussed so for were intended to distinguish so for were intended to distinguish a federal nation-state from an association or confederation of sovereign states .Although these are helpful in discovering national variations of constitutional approaches to discovering national Variations of constitutional approaches to unity in diversity, they failed to provide us with a fully reliable criterion. In the following chapter we shall
examine some other yardstick of federalism, the purpose of which is to draw a line between a federal and a unitary constitutional system.
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YARDSTICK FIVE: INDESTRUCTIBLE IDENTITY AND AUTONOMY
(Are the component units immune to elimination of their identity [antedating or postdating the Union] and authority?lii)
Like all the other preceding and following ones the fifth yardstick has to be qualified too. First, the very term indestructible is too absolute for the world of politics, where nothing can be deemed immune to change. Like men, political institutions are born; then they mature, prosper, live, become sick, and die a natural or a violent death. Indestructibility at best should be understood as a relative eternity or perhaps simply longevity. Second, a unitary system in theory can, but in practice rarely does, eliminate units of local self-rule. The reason for the restraint is not a constitutional prohibition but politically wise respect for territorial pluralism or simply concern for greater administrative efficiency that overburdening of the national centre would jeopardize. In a unitary system, Paris has no more intention to take over the administration of Marseille than Sacramento plans to capture the administration of Los Angeles. Self-Government at the Kings Command may sometimes be not less but more significant than under a federal constitution. Third, there are numerous unitary systems that promise local autonomy, leaving its scope and mechanism to future laws; many unitary constitutions not only guarantee the principle of local autonomy but describe its scope at some length and add specific provisions for autonomous legislative and executive organs, endowed with local taxing powers. These constitutions not only do not claim to be federal but stress their unitary character. In another context we have already mentioned some of such cases: the Peoples Republic of China, whose Constitution stresses its unitary nature but guarantees different levels of broad regional-ethnic autonomy; Italys Constitution promises the establishment of regions, endowed with official autonomous organs (regional council, executive giunta, and its president), financial autonomy, taxing powers, and a share in national taxes. The unitary features,liii on the other hand, are manifest in the provision that the central authority is to be represented in each region by a commissario with a veto power over local administration
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and with primary responsibility to the national capital. The regions are represented by senators on a proportional basis (one senator for every 200,000 inhabitants). We have also previously mentioned Czechoslovakia, which before 1968 asserted its unitary character but emphasized the equality and indestructibility of its two component peoples: The Czechoslovak Socialist Republic is a unitary state of two fraternal nations, possessing equal rights, the Czechs and the Slovaks. There are other cases of often undecipherable mixtures of unitary intentions with federal pretense or, on the contrary, federal intentions that dread the implications of full federalism and therefore the word itself. A good example is the first provisional Basic Law ( Loi
Fondamentale) of 1960 of the Congo, which replaced the former highly centralized Belgian
colonial rule by relatively generous grants of power to the provinces. However, under the impact of a conflict between the Congolese federalists and Unitarians the Constitution avoided the use of the adjectives federal or unitary in the description of its nature. The second Constitution (Luluabourg draft), which was approved by the Congolese electorate in 1964, appears more federal than the first one in both tone and content. The twenty one component units of the Congolese state are listed by name. Their indestructibility seems certified. The capital, Kinshasa (Leopoldville), is the twenty-second unit. There are lists of powers given to be exercised by the national centre, the provinces, and concurrently. Residual powers are to be kept by the provinces. All that sounds federal. Yet the term federal, which was part of the initial draft, had finally to be omitted. There were still many groups (trade unions in particular) that thought a unitary system combined with
decentralization might preserve the unity of the Congo better than federalism, which may lead to tribal secessions and territorial disintegration. The new Constitution of Uganda (1996) states liv that the central Parliament shall have power to make laws for the peace, order, and good government of Uganda with respect to any matter a clearly unitary feature but its Sixth Schedule enumerates some exclusive powers retained by the component kingdoms. Article 2 of the Constitution seems to make them indestructible by listing each of them by name: Uganda shall consist of Kingdoms,
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Districts, and the Territory of Mbale. The kingdoms shall be the Kingdom of Ankole, the Kingdom of Buganda, the Kingdom of Bunyoro, and the Kingdom of Toro. The above samples remind us strongly of what the French scholar Maurice Duverger once wrote about the resistance of political systems to be classified in neat, watertight categories: As a matter of fact, there is no difference in kind, only in degree: decentralization is a mitigated federalism; and federalism is a very emphasized decentralization. Listinglv of constituent units is usual and normal in constitutions that claim to be federal. The Constitution of the United States, however, failed to list the founding states, since their delegates were far from certain that all would accept their draft. For the same reason, the Preamble uses the formula We the People instead of enumerating the constituent units. The names of twelve of the original states (the thirteenth, Rhode Island, was not present) appear only at the end of the last article when the names of the delegates, starting with George Washington of Virginia, are listed, indicating the states they had represented in Philadelphia. When India emerged as an independent State, it had nine fully autonomous states, eight less autonomous states, ten minor states, called Part A, B and C States respectively and federally administered territories called Union territories. This has been made possible by the Reorganisation of States in 1965 mainly on linguistic considerations. Thus the power to alter the boundaries of the States or change the name of the existing ones is given to the Union Parliament.lvi Although the power for the total elimination of a States identity is available with Parliament under Article 3(a) of the Constitution of India, it has not taken place so far. YARDSTICK SIX: RESIDUAL AND SIGNIFICANT POWERS [Have the component units retained all the powers that the constitution has not given to the central authority? And are these retained powers significant or marginal?lvii] The United States constitution states, The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.lviii In the words of Madison "The powers delegated by the proposed Constitution
to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."lix Some Americans too readily assume that this should be so if federalism is to be prevented from slipping down into an abyss of centralism. Yet, in the majority of federal systems today we find different constitutional provisions: powers given to the provinces are enumerated, the rest of the power being reserved by the central authority. This is so, for instance, in Canada, whose basic federal law was prepared in the period following the American Civil War. It was then generally believed that the residual powers of the American states were one of the main reasons for political confusion and civil war. Modern federal constitutions, like those of India, Pakistanlx and Burma contain long and detailed lists of powers reserved for the central authority (Union List), powers reserved for the component units (State List), and powers exercised by both elements (Concurrent List), with usually the provision that if the central authority chooses to exercise some of the concurrent powers it thus pre-empts the state powers. More important than the location of residual powers in one or the other level of government is the requirement that in a true federation.
there must be some matter, if only one matter, which comes under the exclusive control, actual or potential, of the general government and something likewise under the regional government. If there were not, that would be the end of federalism.lxi
Here one question must be posed: Does it matter or not what kind of power is left to the exclusive domain of one or the other level of government? Territorial distribution of authority in a federal system has never been intended to be on a fifty-fifty basis; a federal system by definition favours the national power by placing in its hands defence, war, and taxing powers. But if through a constitutional division of power, the federal centre were to retain 99 percent of the power, leaving the territorial components with 1 percent, would it still be correct to speak of a federal system? If, on the other hand, the central authority were left with only some symbolic or ceremonial powers, it would not be a nation-state at all, only
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an alliance or a loose league. Evidently, here the old problem of quantitative measurement of political powers appears again. Is it indeed possible to quantify power so as to speak in terms of 99 percent to 1 percent? Furthermore, because power is only a means to an end, there arises the problem of also measuring the value of various ends that one or the other level of government may desire to attain. What seems provincially or locally vital may be viewed nationally as marginal and vice versa. This type of arrangement in the division of powers is not followed by all federal states. In some of them residuary powers are left with the federal Government and in some specific distribution is mad e along with certain concurrent powers. In India, apart from making three lists in Schedule VII (Union, State and Concurrent powers), the residuary powers are vested in the Union and not to the states.lxii However, the States under Indian Constitution do enjoy some real powers in all matters listed in List II as well as some in List III of the same Schedule. Thus, to a large extent the Indian Constitution can be said to be satisfying this yardstick too, irrespective of the fact that the residuary powers are with the Union Government. YARDSTICK SEVEN: BICAMERALISM AND EQUAL REPRESENTATION OF UNEQUAL STATES
(Is the collective sharing in federal rule making adequately secured by equal representation of unequal units in a bicameral system? What are the constitutional provisions for collective sharing in the executive and judiciary rule implementation?lxiii)
Often viewed by Americans as an essential yardstick of federalism is the Connecticut compromise, by which the American founders agreed on a proportional representation of unequal states in the lower house and an equal representation of unequal states (two senators per state) in the upper house (the Senate, a federal chamber to replace the British concept of a hereditary, aristocratic one).lxiv The United States bicameralism is a true and full one because both houses are equal in matters of legislation: no law can be enacted unless both houses agree on the same text. This is in contrast with many other bicameral
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systems in which the upper house often enjoys only a limited or suspensive veto over legislation. Furthermore, unlike the parliamentary system, the American lower house does not create the national executive branch (the cabinet). And the executive branch is not directly responsible to the lower house. The Senates advice and consent to executive appointments and treaty making make the Senate, with its one hundred senators, actually a powerful body and a partner of the national executive; this is in contrast with parliamentary systems, where this role is exercised by the lower house. Originally, the Senate could have been viewed as a guarantee and a channel for the decisive influence of the states on the shape and direction of the national policy. Because the practice of instructing senators disappeared more than a century ago and because their election has passed from the hands of the state legislatures to the hands of the people, it is debatable whether a senator still represents today his own state interests or, rather, the multistate regional interests (the South, the Midwest, or the East), functional divisions (agriculture, cities), or his party. A similar observation can be made about the Australian Senate, created to safeguard and represent state interests, which has now become a body in which divisions
are along strict party lines.lxv

The principle of equal representation of unequal component units has been adopted by many federations. The Australian six unequal states are represented equally in the Senate; in Switzerland, too, forty-four councillors represent its twenty-two cantons (actually, Switzerland is divided into twenty-five units because three cantons have been subdivided into half-cantons, each represented by one councillor). The principle of equal representation is also present in all Latin-American constitutions as well as in the communist federations. In federal Czechoslovakia now, the highest legislative organ is the Federal Assembly (composed of the House of the People and the House of the Nations). The House of the People is composed of 200 deputies, whereas the House of the Nations is composed of 150 members, half of whom are elected in Bohemia-Moravia and the other half in Slovakia. In the Soviet Union, each union republic is represented by twenty-five deputies in the Soviet of
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Nationalities, the federal chamber of the Supreme Soviet, the highest legislative organ (the other house is called the Soviet of the Union). Furthermore, the Constitution provides that each of the fifteen union republics is represented by one deputy in the Presidium of the Supreme Soviet, the parliament in miniature that fulfils a dual role: to act as a permanent standing committee on behalf of the national legislature when that is not in session and to act as a collegial president, a ceremonial head of the Soviet Union. The Presidium is composed of one chairman, one secretary, fifteen members elected by the Soviet of the Union, and fifteen vice-chairmen representing the constituent units of the Soviet Union. Soviet federalism is a multilayer one; its largest unit, the Russian Republic, for instance, is a federation itself. In addition, in the territories of some of the union republics, federal or not, there are autonomous republics, autonomous regions, and national districts with the right of direct representation in the central legislature. Unequal autonomous republics are equally represented by eleven deputies each, autonomous regions by five deputies each, and national districts by one deputy each. The degree of direct representation in the national legislature is related to the degree of autonomy granted by the Constitution. In India, collective sharing in federal rule making is secured by unequal representation of unequal units in the bicameral system. The allocation of seats to the States in the Council of States in the Parliament is provided under Schedule IV of the constitution. Apart from this, twelve members are nominated by the President to the Council of States taking the total strength of Rajya Sabha to 250.lxvi No constitutional provision enquirers that judges to the Supreme Court or various high courts should be from one State or the other. ON the other hand, by way of convention, judges are appointed to both the courts which interpret the law and the constitution to prevent an opinion that judgeships of the Supreme Court are monopolised by a few states. The judges can be moved from one high court to another, thus making the federal work in its policy control apparatus territorially neutral.lxvii YARDSTICK EIGHT: TWO SETS OF COURTS
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(Are there two independent set of courts, one interpreting and adjudicating the federal laws and the other the state laws?lxviii)
Two sets of courts may seem a minor criterion, but some find it important. Commenting on the nationally controlled judicial system in Venezuela, one author writes, In 1945 the states surrendered their last major power when they ratified a constitutional amendment which conferred upon the national government exclusive control of the judicial system. Herman Finer lists the absence of a dual federal-provincial judicial system as one of the reasons for which the Soviet Union does not qualify as a federation. He lists eight criteria of federalism: (1) control over the amendments; (2) assignment of powers to the centre as compared with the residue left to the states; (3) special representation, and veto and deadlock powers preserved by the component units in the upper chamber; (4) existence of a court that stands above the Union and the territorial units; (5) independent financial resources; (6) exclusive control of foreign relations by the Union; (7) independent party organization in the several units; and (8) existence of two independent sets of courts, one for the Union, the other for the units. On all these eight counts, Herman Finer argues, the Soviet Union fails to pass the test of federalism.lxix Actually, only a few federations the United States and, with modifications, Mexico and Brazil have developed two parallel networks of courts: federal courts to adjudicate national laws and provincial courts to adjudicate local laws. The United States, for instance, has established a complete judicial hierarchy on both the federal and the state levels. In the federal-court structure there are, in ascending order, district courts, circuit courts of appeal, and at the top of the federal judicial pyramid the Supreme Court. In each state another judicial pyramid of state courts culminates with the state Supreme Court. The two systems, however, are not federally fully separate, not only is the federal Supreme court the highest court of appeal from both networks but the two systems actually interlock by a degree of concurrent jurisdiction, shared by both the federal and the state courts. Only some matters are reserved for the exclusive jurisdiction of the state courts. Some other matters are under the exclusive jurisdiction of the federal courts, such as crimes and offences against the
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United States; prize, patent, copyright, and some bankruptcy cases; civil cases of admiralty and maritime jurisdiction; cases to which a state is a party; and cases involving foreign ambassadors. In all the other federal systems we find different variants of a single integrated court system, usually provincial or state courts, topped by a federal highest court of appeal. For special cases, sometimes a federal Court is added to the system. For instance, in Canada, in addition to the Supreme Court there is a special federal Court of Exchequer and admiralty. In Switzerland the Organization of the judiciary, legal procedures and the administration of justice remain in the cantonslxx; the cantonal courts adjudicate both federal and cantonal laws. A federal Tribunal stands above the whole system as a court of appeal over the cantonal courts and as a court of original jurisdiction in some federal matters. West Germany, too, has a single integrated system of state courts with a Federal Supreme Court at the top. The state courts and their procedures are, however, regulated and made uniform by federal codes. In Communist federations each of the component territorial units (union republics and their subdivisions in the Soviet Union; republics in federal Yugoslavia) has its judicial system that is topped by the republican Supreme Court, which, in turn is topped by the federal Supreme Court.lxxi They adjudicate uniform Soviet codes. The Soviet network of procurators that play such a decisive role in all criminal proceedings is, on the other hand, rigidly centralized under the supervision of the powerful federal office of prosecutor general. In the British Commonwealth federations the Constitution permits the establishment of a dual (federal and state) judicial system, but only the state system is in actual operation. This is so, for instance, in Pakistan, India, and Australia. In India, there is a unified judicial system with the Supreme Court as the apex body followed by the twenty one other high court. The Supreme Court as well as the high courts can interpret the Constitution, and the Union as well as the State laws. The judges for all these courts are appointed by the Union in consultation with the State authorities for appointments to the High Courts. lxxii The Indian Constitution authorizes Parliament to
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establish any additional courts for the better administration of federal laws.lxxiii But it has chosen not to do so. There are only state courts supervised by Indias federal Supreme Court. A similar situation has developed in Australia, whose Constitution lxxiv provides that the federal Supreme Court (the High Court of Australia) shall hear appeals .. from all judgments of any other federal court .. or any other court of any State; yet the Australian Parliament has so far not established a complete federal judicial hierarchy but has mostly employed the state courts for federal purposes. In Canada the provinces have established as the Constitution permits, their own judicial systems, and they regulate their procedure in civil matters. The central government, however, appoints and pays all the judges, regulates the procedure in criminal matters, and has conferred upon provincial courts jurisdiction in most matters of national law. The whole system, again, is topped by a supreme court that has an appellate jurisdiction in civil and criminal matters from the provincial courts. If a fully developed parallel federal and state court systems were a decisive yardstick of federalism, only the United States (and, with some qualifications, Mexico and Brazil) could pass the test. YARDSTICK NINE: THE SUPREME COURT
(Is there a judicial authority in the central authority but standing above the central authority and the components units to determine their respective rights?lxxv)
In all systems, federal as well as unitary, there is a need for an impartial agency that can ascertain the meaning of the nations supreme law, the constitution, and that, in light of its findings, can determine the compatibility of any given law or official act , national or local, with the constitution. This may lead and has led to a broad concept of the judicial review, the right of the courts to annual or confirm the validity of laws passed by national or states as exercised by the Supreme Court, has been in modern
times characterized by the Courts support of civil rights and liberties, many unitary and federal constitutions, in one form or another, have now imitated the American theory and practice to some extent. Constitutional courts in unitary France, Federal Germany,
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Communist Yugoslavia, and Moslem Pakistan represent brave attempts to transplant the American institution of judicial review from its native American soil to areas somewhat less hospitable to the power of the judges to decide issues that often are political and social in nature, although presented in legalistic garb. As yet, in no country is there a real counterpart to the awesome power of the United States Supreme Court. Especially in Europe, there is some doubt concerning the wisdom of placing a few judges above the people and its elected representatives when it comes to the interpretation of the nations fundamental law that expresses political and social theory of the founders. In a federal system there seems to be an even more acute need for an impartial agency, because the interpretation of the meaning of the constitution includes also the delicate original political agreement between territorial communities from which the whole federal system had issued. In its role of protector and interpreter of the federal compact and arbitrator of possible disputes about the division of power between two jurisdictional spheres, such an agency should be, ideally, independent of both the federal and the provincial governments and should stand sublimely above both. Only Switzerland seems to be near the ideal. Not judges, but only the sovereign people of Switzerland can question the validity of federal laws (the courts may question the validity of cantonal laws): either 30,000 voters or eight cantons can challenge any law passed by the federal legislature and so either confirm its constitutional validity or annul it. A simple majority of voters decides the issue in a legislative referendum; the majority of cantons is not required. This is in contrast with a formal amendment of the Swiss Constitution, which also requires, in addition to the majority of voters in a constitutional referendum, approval by the majority of voters in the majority of the cantons. Until 1949 Canada had another form of impartial constitutional agency, independent of both the national and the provincial governments: it was the Judiciary Committee of the Privy Council (composed mostly of the law lords of the British House of Lords), located in the British Empires original center, London. This is no longer so, and Canadas Supreme Court has now become the only final court of appeal in the Dominion.
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With the exception of the Soviet Union, in all the other federal systems (including Communist Yugoslavia) a judicial agency has the role of interpreter of the original federal consensus and, therefore, is arbitrator in potential jurisdictional disputes between the federal and provincial governments. In most cases it is the additional function of the highest federal court of appeal; in West Germany, however, a special constitutional court was established. In contrast with most German courts, its members are elected by Parliament; half is elected by the federal chamber, the Bundesrat, and half by a special committee of electors, reflecting the proportional strength of political parties in the popularly elected chamber, the Bundestag.lxxvi In the Soviet Union, not the Supreme Court, but the permanent standing committee of the national legislature (the Presidium of the Supreme Soviet) is given the power to interpret the laws of the USSRlxxvii, which may imply arbitrating jurisdictional disputes between the federation and its components. In Indian also a similar situation exists. But unlike the American Constitution, judicial review is explicitly provided under article 13(2) of the Constitutionlxxviii read with Article 14, 32 thereof. Article 131 also speaks about the original jurisdiction of the Supreme Court in any intra-federal disputes between the Government of India and one or more States, or between two or more states. Thus there is a judicial authority in India, standing above the Central authority as well as the components units that can determine their respective rights. YARDSTICK TEN: CLEAR DIVISION OF POWER
(Is the territorial division of authority clear and unambiguous?lxxix)

A constitutional division of power between the center and the component territorial units is a central point in most definitions of federalism and also in our graphic model of a federal system. When we study constitutional texts we discover, however, that the dividing line between the central and the provincial powers is neither clear nor beat. There are deliberate and some unwitting overlaps in the territorial division of power just as the separation of executive, legislative, and judicial powers has never been intended nor proved possible to be
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absolute. Five principal over laps that blur the critical line between central and provincial powers may be noted. 1. The federal monopoly in the field of foreign policy and defence and its implications 2. The emergency provisions (related to 1) 3. The concurrent power 4. The elastic or coefficient clauses (related to 3) 5. The lack of verbal precision, partly deliberate and partly unwitting, which may be found in all federal constitutions THE FEDERAL MONOPOLY IN FOREIGN POLICY AND DEFENCE, AND ITS IMPLICATIONS The federal monopoly in foreign policy and defence spills over easily into the seemingly exclusive domain of provincial powers. This is actually a genetic feature of all federations because the fundamental reason for most federations is to create a nation vis--vis other nations, which means a nation with a unified foreign policy and a unified concept of collective defence, based on a unified defence establishment. Under the Constitution of India also there is federal monopoly in the fields of foreign policy and defence with all its implications. The emergency powers are again with the Central government. lxxx Unlike the American Constitution, the Indian Constitution very clearly distributes the powers between the Union and States. Schedule VII to the Constitution contains three different lists: List I called the Union List has 97 Entries, List II called State List has 66 Entries and List III called Concurrent List has 47 Entries. With regard to List I, the Union alone has absolute power and the states cannot interfere in it. List II is with the States, Union getting the power overlap to legislate on them.lxxxi List III is common to both the Union and the States. However, in the event of a conflict between the Union and the State law on any of the entries in List III, it shall always be in favour of the Union, subject to the exception given in Article 254(2).lxxxii The Union also has the power of administrative supervision over states. lxxxiii Thus, the territorial division of authority under the Indian
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Constitution is very elaborate, clear and unambiguous. In the event of any ambiguity being felt the superior courts have the power to interpret the provisions of the Constitution to remove any doubt with regard to the sharing of powers by an exercise of review in terms of the provisions in the Chapter I of the Part XI of the constitution. CONCLUSION Having analysed the ten yardsticks of federalism as given by Ivo D. Duchacek, it is evident that the Constitution of India satisfies the majority of them to qualify as a federal constitution. However, it is relevant to note the views expressed by Duchacek himself in this regard. He expressed his views stating that any yardsticks chosen to test federalism are necessarily of unequal weight and, therefore, different relevance. Apex court in India has not been consistent in expressing its view on nature of Indian constitution.lxxxiv Ever since the decision in West Bengal v. Union of India,lxxxv it has been the doctrine of our Supreme Court that the unitary features in our Constitution are so many that the Federal features almost disappear.lxxxvi In Rajasthan v. Union of India,lxxxvii Beg C.J. said:
In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically co-ordinated, and socially, intellectually, and spiritually uplifted. lxxxviii
However, in 1973 better sense prevailed over Supreme Court and federalism was declared an essential feature of the Constitution and a part of its basic structure.lxxxix To express general feeling, there can be no truly federal state. It all depends upon the time and different national environments. As such there can be no specific yardsticks of federalism given for all time and for all national environments. The future of India and her Constitution will depend on how the nation evolves the principles and practice of federalism suited to India whose indispensible requisite has to be unity in diversity, integrity with variety, marked by the wisdom and experience of creating a harmony between the centrifugal and centripetal forces within this sub-continent.xc
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REFERENCES:
i
Prof. K. C. Wheare has coined the phrase quasi-federation as applicable to India but he has nowhere defined this term. In the opinion of the author it is not advisable to use such kind of vague term that too when there is no accepted definition of federation. ii Justice P. B. Mukerjee.1967. The Critical Problems of the Indian Constitution. University of Bombay, p.128. iii K. C. Wheare: Federal Government. The English Language Book Society & Oxford University Press, P. 1. iv The term federalism is derived from the Latin root foedus, which means "formal agreement or covenant." v Sobei Mogi, The Problem of Federalism: A Study in the History of Political Theory. (1931), George Allen& Unwin Ltd., London, vol. 1, p.21. vi Karl Loewenstein in his book Political Power and the Governmental Process has given a systematic analysis of the process of political power proceeds from the discussion of the horizontal control that operates either within one and the same power holder (inter-organ controls) or between several power holders (interorgan controls) to a different type of control instrumentality, here called vertical controls. Federalism works according to author as on of the vertical controls in a political set up. vii Karl Loewenstein: Political Power and the Governmental Process. The University of Chicago Press, London. P.124. viii Ibid.p.289 ix Ecumenism means to building or renewing unity among variants of a common creed or ideology. x Justice SALMON CHASE in TEXAS V. WHITE, 74 U.S. (7 Wall.) 700, 19L. Ed. 227 (1868), explained the necessity for the constitutional limitations that prevent concentration of power on either the state or national level: "[T]he preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution, as the preservation of the Union. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." Source: http://legal-dictionary.thefreedictionary.com/Federalism.
xi xii
The words centre, union, federal and general government are used interchangeably in this paper. The phrases sub national governments, regional governments, constituents and component units are used interchangeably.
xiii xiv
See generally Niraja Gopal Jayal, Unity in Diversity: Learning from Each Other: An Indian Perspective , in UNITY IN DIVERSITY: LEARNING FROM EACH OTHER CONFERENCE READER 29 (Rupak Chattopadhyay ed., 2007). xv See Abhishek Singhvi, Federalism, 53 INDIAN JOURNAL OF PUBLIC ADMINISTRATION, 745, 751 (2007).
xvi
Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 See Article 1, section 10 xviii See Article 54(1) of Constitution of Swiss Confederation xix See Article 245 xx See Articles 18a and 18b of Soviet Constitution xxi All republican Constitutions were amended accordingly to include ministries of foreign affairs and defense in the list of the republican governmental departments. Although several, but not all, republics established ministries of foreign affairs and appointed ministers to direct them, not a single republic has so far established a ministry of defense or has appointed a defense minister. xxii Article 6: No state without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any king, prince or state. xxiii Entry 1 xxiv Entry 2 xxv Entry 3 xxvi Entry 10 xxvii Entry 11 xxviii Entry 13 xxix Entry 14 xxx Entry 15 xxxi See Entries 5, 6, 7, 9, 12, 16, 17, 18, 19, 37, and 41 of the Union List. xxxii The supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law. xxxiii The State shall endeavor to- (a) promote international peace and security; (b) maintain just and honorable relations between nations; (c) foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and (d) encourage settlement of international disputes by arbitration. xxxiv Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207
xvii
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xxxv
Compare for instance the interdynastic federation of German states, following the loose German Confederation in 1871 (Bismarcks Constitution): His Majesty, the king of Prussia on behalf of the Northern German Federation: His Majesty, the King of Bavaria: His Majesty, the King of Wurttemberg: His Royal Highness, the Grand-Duke of Hessen and of the Rhinethe latter for the section of the Grand-Duchy situated south of the river Mainconclude an eternal federation to protect the federal territory and the law of the land as well as to promote the welfare of the German people. This federation shall be known by the name of German Reich and shall have the following Constitution. xxxvi Edward S. Corwin and J. W. Peltason, Understanding the Constitution, 4th ed. New York. xxxvii See Article 1 of the Constitution xxxviii See Article 2 of the Constitution xxxix See Article 3 of the Constitution xl Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 xli K. C. Wheare, Federal Government, New York: Oxford, 1964, p. 10. xlii The United States Constitution states in Article IV, Section 2: The Citizens of each state shall be entitled to all Privileges and Immunities of Citizens in the several States. xliii The Burmese Constitution states in Article 10: There shall be but one citizenship throughout the Union; that is to say, there shall be no citizenship of the unit as distinct from the citizenship of the Union. xliv McCulloch v. Maryland 4 Wheaton 316 (1819). xlv See Article I, Section 8 xlvi See Article 285 xlvii See Article 289 xlviii See Article 275 xlix Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 l This provides that by a simple majority and by ordinary legislative process, Parliament may form a new State or alter the boundaries, etc of existing States and thereby change the political map of India. li a) Article 54, article 55, article 73, article 162 or article 241, or b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or c) Any of the Lists in the Seventh Schedule, or d) The representation of States in Parliament, or e) The provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
lii
Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 Article 5 of the 1947 Constitution proclaims that the Italian Republic, which is one and indivisible, recognizes and promotes local autonomies. liv See Article 74 of Constitution of Uganda lv The following federal constitutions list their component units: Argentina, Australia, Austria, Brazil, Burma, Cameroun, Canada, West Germany, India, Libya, Mexico, Pakistan, Switzerland, USSR, and Venezuela. lvi See Article 3 lvii Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 lviii Amendment X [1791] of the US Constitution lix The Federalist, no. 45 lx See Article 142 of the Islamic Republic of Pakistan provides that Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to matters not enumerated in either of the Lists for such areas in the Federation as are not included in any Province. lxi K. C. Wheare, Federal Government, New York: Oxford, 1964, p. 75. lxii Article 248 read with entry 97 of the Union list. lxiii Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 lxiv See Article I Section 3 lxv Louise Overacker, The Australian Party System. New Haven, Conn: Yale University Press, 1952, p.328. The author also notes that the Australian Labour Party antedates federalism; it has become a national party even before Australia was a nation (p.30). lxvi See Article 80 lxvii See Article 222 which provides that The President may, afte r consultation with the Chief Justice of India, transfer a judge from one High Court to any other High Court. lxviii Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 lxix Herman Finer, Theory and Practice of Modern Government. New York: Holt, Rinehart and Winston, Inc., 1949,p. 820. lxx See Article 64A
liii
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lxxi
Article 102 of the Soviet Constitution: in the USSR justice is administered by the Supreme Court of the USSR, the Supreme Courts of the Union Republics, the Courts of the Territories, Autonomous Regions and Areas, the special courts of the USSR established by the Supreme Soviet of the USSR, and the Peoples Courts. Article 104 charges the Soviet Supreme Court with the supervision of the judicial activities of all the judicial bodies of the USSR. The different territorial courts are elected for five years by the corresponding soviets except the district peoples courts, which are elected directly by the citizens of such districts or cities. lxxii Article 124(2) of the constitution provides: Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixtyfive years. Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Now the practice has been changed by the Supreme Court decision in the Supreme Court Advocates on Record Association v. Union of India, AIR 1994 SC 268. lxxiii See Article 247 of the Constitution. lxxiv See Article 73 lxxv Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 207 lxxvi John H. Herz, Germany, in Carter and Herz, Major Foreign Powers, pp. 449-450. lxxvii See Article 49, Section c lxxviii The State shall not make any law, which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. lxxix Ivo. D. Duchacek. Comparative Federalism. Holt Rinehart and Winston Inc, New York, 1970, p. 208 lxxx See Article 352 to 360 lxxxi See Article 246 of the Constitution: 1. notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List). 2.Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List). 3.Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the State List). 4.Parliament has power to make laws with respect to any matter for any part of the territory of India not included [in a State] notwithstanding that such matter is a matter enumerated in the State List.
lxxxii lxxxiii
See Article 256. The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
lxxxiv
In M. Nagaraj v. Union of India, (2006) Supp. 7 S.C.R. 336, 372, the Supreme Court of India declared: The point which is important to be noted is that principles of federalism, secularism, reasonableness and socialism etc. are beyond the words of a particular provision. They are systematic and structural principles underlying and connecting various provisions of the Constitution. They give coherence to the Constitution. They make the Constitution an organic whole. They are part of constitutional law even if they are not expressly stated in the form of rules.
lxxxv
(1964) 1 S.C.R. 371 H. M. Seervai. Constitutional Law of India, Vol. 1,Fourth Edition. Universal Law Publishing Co. Pvt. P. 283 lxxxvii (1978) 1 S.C.R. 1 lxxxviii Ibid. p.34 lxxxix Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 xc Justice P. B. Mukerjee.1967. The Critical Problems of the Indian Constitution. University of Bombay, p.151.
lxxxvi
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INTENDED PARENTS AND THE LEGAL CONCERNS IN SURROGACY PRACTICES

ANEESH V. P ILLAI INTRODUCTION Traditionally, the concept of a family is that of a mother, father and one or more children. The natural expectation of majority of people is that they would marry and establish a family of their own. The desire to raise genetically related children is one of the most fundamental instincts of men and women. However, this aspiration gets frustrated as a number of individuals suffer from infertilityi and are unable to conceive their own offspring unaided. In modern times, the surrogacy practices are promoted as an alternate method of medical treatment for infertility ii . The recent developments in medical science and technology encourage the use of surrogacy for those who have fertility complications and for those who cannot conceive children of their owniii. In most of the surrogacy cases, it is seen that whenever a legal or medical issue arises, the major concern is focused on the surrogate mother and the child and the intended parents are not given much importance. However the intended parents are also equally important in a surrogacy arrangement and their rights and interests also need to be addressed. This paper discusses the various legal issues relating to intended parents. INTENDED PARENTS: MEANING AND D EFINITION Surrogacy is traditionally defined as the procedure whereby a couple contracts with a woman (known as the surrogate) to conceive a child for them, carry it to term, and then relinquish to the couple all her parental rights iv . It is a contractual deal between the surrogate woman and intended parents in which the surrogate woman agrees to get impregnated with the intention of carrying the child to full term and handing it over after birth to the intended parents v . Surrogacy is not so new as far as artificial reproductive technologies are concerned, and it is often noted that the practice dates back to Biblical timesvi. For example, the Bible mentions two stories of surrogacy, i.e. Abraham and Sarah, who employed their maid Hagar as a surrogate and Jacobs wife Rachel who asked Jacob to
have a child with their maid Bilah vii . With the development of modern science and technology these ancient practices have been further modified and developed and established in the present century as assisted human reproductive technologiesviii. The intended parents are the couples or in some cases, individuals who wish to beget a child with the help of the surrogate and bring up the child after his or her birth ix. The intended parents are also known as commissioning parents x . Intended parents are the infertile couples who intend to have a child through the process of surrogacyxi. They are the couples or individuals who enter into a surrogacy agreement with the surrogate mother with the intention to become legal parents or legal parent of the child born to the surrogate. There are various situations due to which a couple or an individual may be forced to choose surrogacy for begetting a child and thus become an intended parent. They are as follows:
Infertility: Inability to conceive due to physical problems/diseases or infertility which is not

amenable to treatment.
Medical Conditions: Physical problems that make it impossible for woman to carry a
pregnancy to viability or pregnancy that is life threateningxii.
Genetic Problems: Presence of genetic diseases with significant risk of genetic

abnormalities. The only method of avoiding this risk would be surrogacy using a donor egg or sperm.
Lifestyle Factors: Female intending parents who are unwilling to undergo pregnancy
because of career or any other reason. There are examples of many successful business women, actressesxiii, athletes and models opting for surrogacy due to career pressure, or for avoiding the pain of childbirth and the prospect of stretch marksxiv.
Single Parent or Homosexual Couples: Surrogacy can be a choice to beget a child for a
single parent or a parent in case of a homosexual couplesxv.
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INTENDED PARENTS AND THE L EGAL ISSUES: In a surrogacy arrangement the intended parents may face various legal issues. For example, in certain cases, the question may arise whether the intended parents have the right to use the surrogacy practice for begetting a child. Secondly, as the intended parents are those who contemplate procreation through surrogacy, they may want to exercise control over the child's characteristics and activities of surrogate mother during the pregnancy. The major significant issues relating to intended parents are as follows: RIGHT TO BE AN I NTENDED PARENT The supporters of surrogacy in the United States argue that if the right to procreate through traditional, coital method is a protected right, then procreation through surrogacy or other medically available options should also be protectedxvi. These proponents argue that the, liberty interests protected by the US Constitution do not change definition because of the presence or absence of reproductive technology. Moreover, they view surrogacy as a form of conception that is equally legitimate to the traditional form and hence protected under the US Constitutionxvii. The Indian Constitution contains similar provisions as that of US Constitution concerning Equality Clause. The Indian Judiciary has also approved the various decisions given by the US courts with respect to the use of contraceptives and reproductive rights. Most importantly in Baby Manji Casexviii the Indian Supreme Court has approved surrogacy as an alternative means for human reproduction. Moreover, in this expanding era of human rights jurisprudence, one can trace the foundation of right to use surrogacy and be a intended parent to the following human rights such as: Right to Personal liberty, Right to Procreation, Right to Found a Family and Decide on the Number and Spacing of Children, Right to Privacy and Right to enjoy benefits of Scientific and Technological Progress. A females right to be a intended parent can also be derived from Right of a Woman to be Free from All Forms of Violence and Coercion that affect a womans sexual or reproductive life.
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RIGHTS AND D UTIES OF INTENDED PARENTS Surrogacy practices are generally based on an agreement between the surrogate and intended parents. For the successful completion of such a surrogacy agreement, both the parties involved in such an agreement have certain rights and duties. i) Rights of Intended Parents Different legislations enacted all over the world have not mentioned expressly the rights and duties of intended parents. An analysis of the provisions and various case laws reveals that the intended parents have the following rights and duties. a) Right to Select a Surrogate Mother The right of intended parents to select a surrogate mother can be justified on the grounds that the intended parents have right to procreate with the help of another, i.e. a surrogate. Hence, if there is a right of access to surrogacy, then the intended parents should also have the right to select the surrogate woman of their choice for fulfilling their right to procreate. However this right to select surrogate mother is not an absolute right and it can be restricted by the state on reasonable grounds of public interest. For example, the intended parents are not entitled to select a woman who is below 21 years and above 45 years of age, a prisoner woman, a woman who had already acted as a surrogate for 4 times, a woman relative who comes within the prohibited degrees of relationship and woman who is not physically or mentally fit for giving birth to a child, etc. b) Right to Impose Restrictions upon Surrogate Mother The purpose of availing the services of a surrogate mother is to beget a healthy child. For this reason the surrogate mother is bound to follow various duties during the initiation of surrogacy and the subsequent pregnancy, so that baby is born without any complications. Thus the intended parents have a right to impose restrictions upon the behavior and activities of surrogate mother during this period. It is to be noted that only such restrictions can be imposed which are not unreasonable and are necessary for the normal development of the foetus.
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c) Right to Information and Visit Surrogate Mother during Pregnancy The intended parents may be interested to know the status regarding development of the foetus and the health of the surrogate mother. Thus the concerned medical practitioner and the clinic are bound to provide necessary information to the intended parents. So also, they are to be given the right to visit the surrogate mother during the pregnancy. d) Right to Custody and Parentage of Child The fundamental objective of surrogacy is to fulfill the desire of intended parents to have a child and raise the child as their own. Therefore the intended parents have the right to custody and parentage of the child soon after it is born. In some cases it is seen that the surrogate may change her mind and refuse to hand over the child to the intended parents. Hence it is necessary to state clearly the right of intended parents to the custody and parentage of the surrogate child. In India the proposed ART Bill, 2010 states that a surrogate mother shall relinquish all parental rights over the childxix. It also states that, a child born to a married couple through the use of assisted reproductive technology shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both spouses, and shall have identical legal rights as a legitimate child born through sexual intercoursexx. The ICMR Guidelines in India also provides that, a child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both the spousesxxi. Thus it can be seen that in India intended parents have the right to custody and parentage of the surrogate child. ii) Duties of Intended Parents A duty is something that someone is expected or required to do or forbear from doing something for any number of reasons, including moral or legal obligationsxxii. Usually in every legal system along with rights the individuals also have certain duties. These duties are essential for the protection of rights of other individuals as well as for the realization of the individuals own rights. Thus the intended parents who have entered into an agreement with surrogate mother for begetting a child also have certain duties which they are expected
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to do or forbear from doing for the successful completion of surrogacy. It is to be mentioned that, though the duties of intended parents are very important, they are not seen dealt adequately by the various legislations dealing with surrogacy all over the world. It is to be noted that the issue of duties of intended parents has been dealt in great detail by the proposed ART Bill, 2010 and ICMR Guidelinesxxiii in India. Some of the important duties are as follows: a) To Refrain from Sex Selection and Improvement of Non-Medical Characteristics One of the major criticisms against surrogacy is that, it may be used to produce children of desired sex and with desired characteristics, i.e. surrogacy may be used for the creation of designer babies. Any use of surrogacy for the creation of a designer baby would give rise to serious ethical, social, moral, religious and legal issues and also come into conflict with the interests of surrogate child, surrogate mother as well as the societyxxiv. The legislations of various countries have incorporated provisions which expressly prohibit, sex selection and improvement of non-medical characteristics while availing the benefit of surrogacy. For example, the Belgian Law on Research on Embryos in Vitro, 2003 provides that it is forbidden to conduct treatment for eugenic purposes, i.e. directed at the selection or enhancement of non-pathological characteristics of the human speciesxxv. b) To Pay the Agreed Sum The surrogacy agreement is an agreement between the intended parent or parents and a surrogate woman. The surrogate woman agrees to undergo the various medical procedures and carry the child in her womb for nine months and then hand over the child to the intended parent or parents. Thus the woman by agreeing to act as a surrogate is actually doing a great service to the intended parents. Therefore, it is the duty of the intended parents to pay all the necessary medical expenses required during the initiation of surrogacy procedure as well as during the pregnancy and childbirth. c) To Accept the Child after Birth
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One of the most important duties of the intended parents or parent is to accept the responsibility for the surrogate child after its birth in every circumstance. There are instances that the surrogate has given birth to triplets or quadrupletsxxvi. Moreover, similar to a normal pregnancy, in surrogacy pregnancy also there are chances of defective birth and are in fact more due to the various medical procedures involved in it. In such circumstances, the intended parents cannot deny the responsibility to accept the children as they have initiated the surrogacy procedure. Therefore, the intended parents have the duty to accept the multiple babies born to the surrogate as well as to accept the surrogate child even if the child is defective. d) To Maintain Surrogate Child as Natural Child Every surrogate child is considered as a legitimate child of the intended parent/parents and therefore, has all the rights available to the children born through normal sexual intercourse. Thus it is the duty of intended parents to take care and maintain the surrogate child as their natural child and provide it with all the rights and privileges available to a natural born child. The ICMR Guidelines in India provides that, a child born through ART shall be presumed to be the legitimate child of the couple, having been born in wedlock and with the consent of both the spouses. Therefore, the child shall have a legal right to parental support, inheritance, and all other privileges similar to a child born to couple through normal sexual intercoursexxvii. Conclusion The right to be an intended parent stems from the inherent desire of an individual to beget and rear a biologically related child. The desire of an individual to beget a child is recognized by almost all legal systems as a fundamental basic human right and is enshrined as the right to procreation. Though the right to be an intended parent is not yet established as an independent human right, it is also a legally protected interest under various other human rights. Thus it can be said that every individual can claim a right to be an intended parent. But the exercise of the right to be an intended parent however gives rises to various
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legal issues and hence necessitates the interference of State in the exercise of this right. An effective interference by State is essential in India in the form of legislation in order to protect the interests of intended parents as well as other stakeholders in surrogacy practices. REFERENCES:
John Robertson, Children of Choice: Freedom and the New Reproductive Technologies , Princeton University
Press, New Jersey, USA, (1994), pp. 97-100.

ii
Adiva Sifris, Dismantling Discriminatory Barriers: Access to Assisted Reproductive Services for Single Women and Lesbian Couples 30 Monash University Law Review 2, 229, (2004), p.237. iii John Robertson, Children of Choice: Freedom and the New Reproductive Technologies , Princeton University Press, New Jersey, USA, (1994), pp.97-100.
iv
Christine L. Kerian, Surrogacy: A Last Resort Alternative for Infertile Women or Commodification of Womens Bodies and Children? 12 Wisconsin Women's Law Journal 113 (1997), p.115. v Jami L. Zehr, Using Gestational Surrogacy and Pre-Implantation Genetic Diagnosis: Are Intended Parents Now Manufacturing The Idyllic Infant? Loyola Consumer Law Review, Vol. 20:3 (2006), p.294. vi Usha Rengachary Smerdon, Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India, 15 Cumberland Law Review, Vol. 39:1, (2008), p.17. vii See, Genesis, 29:28-32, 30:1-8.
viii
See, Aneesh V. Pillai, Surrogacy and Gender Based Human Rights Concerns: A Dilemma for Legal System, S. P. Law Review, Vol.1, (January 2013), pp.30-35. ix See Generally, Dr Rebecca Gibbs, Surrogacy: Medical, Ethical and Legal Issues to be Considered, North East Essex PCT, (January 2008), available at <http://www.northeastessex.nhs.uk/public_29_01_2008/surrogacypolicy.pdf > Visited on 10.3.2012. x See John Dwight Ingram, Surrogate Gestator: A New and Honorable Profession, 76 Marq. L. Rev. 675 (1993), p.677. xi See, Successful Surrogacy and Indented Parenting (web page), available at <http://surrogacymumbai.wordpress.com> Visited on 10.3.2012. xii See, Brinsden P.R., et al., Treatment by In Vitro Fertilization with Surrogacy: Experience of one British Centre, B.M.J., Vol. 320(2000), pp. 924-929.
xiii
For example, Aussie actress Nicole Kidman and husband Keith Urban have announced that their new baby, Faith Margret Kidman Urban, was born to a surrogate mother on December 28, 2010 in Nashville, See <http://www.theaustralian.com.au/news/gallery-e6frg6n6-1225990282006?page=1> Visited on 10.3.2012. xiv See, Tessa Mayes, Career Women Rent Women to Beat Hassles of Pregnancy, Availa ble at <http://www.rense.com/general11/rental.html> Visited on 10.3.2012. xv Editorial, Surrogate Motherhood: The Uptrend Continues, Ministry of Woman and Child Development, Government of India, Newsletter Sampark, Volume 4, Issue 4, (2008), p.4. xvi See Eric A. Gordon, The Aftermath of Johnson v. Calvert: Surrogacy Law Reflects a More Liberal View of Reproductive Technology, 6 St. Thomas L. Rev. 191(1993) p.200. xvii See for more, L. Gostin, A Civil Liberties Analysis of Surrogacy Arrangements, Law, Medicine & Health Care, 16 (1988) 7-17. xviii See, Baby Manji Yamada v. Union of India, AIR 2009 SC 84; Jan Balaz v . Anand Municipality and Ors, AIR 2010 Guj 21. xix See, The ART Bill, 2010, S.34 (4). xx Id. S.35 (1). xxi See, The ICMR Guidelines, R.3.12.1. xxii SHEWANDA PUGH , WHAT IS THE MEANING OF DUTIES? SEE, <HTTP://WWW.EHOW.COM/.HTML> VISITED ON 12.3.2012.
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xxiii xxiv
See Ss. 32 & 34 of the ART Bill, 2010 and Rule 3.10 & 3.16 of the ICMR Guidelines. SEE FOR MORE , MCGHEE T.K., DESIGNER BABIES. WHAT ARE THE ETHICAL AND MORAL ISSUES? WEST INDIAN MED J. 2003 JUN; 52(2):170-4. SONIA M. SUTER, A BRAVE NEW WORLD OF DESIGNER BABIES? 2007 BERKELEY TECHNOLOGY LAW JOURNAL, VOL. 22:897; GUIDO PENNINGS AND GUIDO DE WERT, EVOLVING ETHICS IN MEDICALLY ASSISTED REPRODUCTION , HUMAN REPRODUCTION UPDATE, VOL.9, NO.4 PP. 397-404, 2003; JOHN A. ROBERTSON, PROCREATIVE LIBERTY AND HARM TO OFFSPRING IN ASSISTED REPRODUCTION , AMERICAN JOURNAL OF LAW & MEDICINE, 30 (2004): 7-40; AND RACHAEL CAFFREY, ETHICAL ISSUES OF R EPRODUCTIVE TECHNOLOGIES : DESIGNER BABIES, SEX SELECTION AND DONOR BABIES, AVAILABLE AT <HTTP://WWW.QUB.AC.UK/METHICS /CAFFERYR2008. PDF > VISITED ON 12.3.2012.
xxv
See, The Belgian Law on Research on Embryos in Vitro, 2003, Art.5(4). In 1987 a South African mother bore triplets for her daughter Mankiller. See, Barbara Smith, The Reader's Companion to U.S. Women's History, Houghton Mifflin Harcourt, USA (1999), p.513; See also Emmis Communications, Cincinnati Magazine, Vol. 28, No. 9, 57 (Jun 1995); Sheila McLean, John Kenyon Mason, Legal and Ethical Aspects of Healthcare, Cambridge University Press, (2003), p.113. xxvii See, The ICMR Guidelines, R.3.12.1.
xxvi
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PUBLIC POLICY: ACHILLES HEEL OF INDIAN ARBITRATION

DANIEL MATHEW INTRODUCTION Over the years there has been an increasing thrust on resolving disputes using alternate dispute resolution mechanisms in particular arbitration. This tremendous leap in its popularity could be attributed to its three defining characteristics efficiency, cost effectiveness, and finality. For commercial transactions, arbitration became the ADR method of choice, with many nations passing supporting legislations. i These legislations dealt with numerous aspects of arbitration such as organizing arbitration, procedures, appointment of arbitrators, recognition and enforcement of arbitral award, to name a few. The primary policy governing these legislations is to minimize interaction with the state justice dispensation machinery. This hands-off approach at no juncture implies a complete disconnect. In other words law enables a private adjudicatory body to perform a function essentially reserved for the state, and retreats to the background content with ensuring that certain minimum standards are maintained. These minimum standards are categorically enumerated in relevant legislations. Though included to discharge an important function at times their vague understanding creates more obstacles. The attempt of this note is to look at one such standard utilised prolifically in arbitration namely that of public policy. HISTORY OF THE ACT For long arbitration in India was governed by set of three different legislations namely The Arbitration Act 1940, The Foreign Award (Recognition and Enforcement) Act 1961 and Arbitration (Protocol and Convention) Act 1937.
ii
The Indian experience with the
performance of its arbitration laws was rather poor,iii and it was often considered a serious obstacle in attracting foreign investment. In light of economic reforms undertaken in early 90s, reforming existing dispute resolution mechanisms was considered imperative. The
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Arbitration and Conciliation Act 1996 (1996 Act) was enacted to give effect to achieve that end. The Act went onto replace all the three previously existing Acts and had as one of its primary aim limited judicial intervention. This singular idea of circumscribed intervention in all aspects of arbitration has been at the core of attempts to define expectations and structure understanding of the 1996 Act. The debate surrounding the interpretation of the concerned provision was fierce.
iv
Overwhelmingly it was argued that the new Act was a complete break from the past,v and was enacted to rectify a spate of shortcomings including that of excess judicial intervention. Therefore the Act clearly intended minimalist intervention.vi On the other hand, a minority advocating possibly a more rational view argued that the concerned provision merely noted that if at all an intervention was to be made it should be one that was specifically sanctioned by the legislation. In other words the new Act merely structured intervention and limited it to specific grounds, thereby effectively eliminating any roving intervention. The question therefore was not one of degree of intervention instead was of sanctioned intervention.vii The debate thus evolved into two intimately interlinked policy questions: a. What level of intervention, if at all any, the law permits in arbitration; and b. How does one reconcile power to intervene with other fundamental precepts of arbitration such as finality and certainty? PUBLIC POLICY AS GROUND OF SCRUTINY The Arbitration and Conciliation Act 1996, deals with two kinds of arbitration, namely domestic arbitration and International Commercial Arbitration (happening both in and outside the territory of India).viii The outcomes of these arbitrations i.e. awards are subject to scrutiny based on differing standards. Validity of a domestic award could be assailed on grounds noted in 34, while enforcement of foreign awards could be resisted on grounds noted in 48. One standard however is common to both the provisions namely that of public policy. In other words, the law provides for a domestic award to be set aside if it fell afoul of
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the public policy of the land, while enforcement of a foreign award could be refused, if such enforcement led to violation of Indian public policy. Public policy thus plays a crucial role in the supervisory regime to which arbitration is subjected to, more so because courts are required to conduct a suo moto enquiry as to whether a particular arbitral award falls foul of public policy. It has oft been referred to as an unruly horseix and not without just cause. In virtually every case the dilemma remains, what precisely is public policy? INITIAL BEGINNINGS The understanding of public policy in arbitration jurisprudence had its beginning primarily in the contract law. In the seminal case of Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr, it was conceptualized to be an idea closely intertwined with public interest and public good. Something that was in public good and was in public interest would form an integral part of public policy of India.x For arbitration, the most important case pre 1996 was the case of Renusagar Power Co. v. Gen. Elec.xi Co.,. Public policy in this case was understood to include a) fundamental policy of Indian law, b) interest of India; and c) justice or morality. At this juncture it is important to note a) the Renusagar case was adjudicated under the Foreign Awards (Recognition and Enforcement) Act 1961xii implying that the understanding of public policy as enunciated was limited to foreign award and did not extend to domestic award. In other words a foreign award could be resisted on grounds that it was contrary to public policy of India as clarified in Renusagar; b) this understanding was a strict construction of the concept of public policy i.e. limited only to three specific grounds; and c) finally, considering the absolute break from the past with the enactment of 1996 Act, the precedential value of Renusagar was to be in doubt.xiii The problem however was that each of the three idea were extremely vague, and were so vast in their scope that it would not have been difficult to virtually bring any and everything within its ambit. Ironically this understanding came to be referred to as the
narrow understanding of public policy.
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For long this understanding held sway.xiv However a critical question that soon arose was whether similar understanding could be extended to domestic awards. Interpreters of arbitration law soon faced a dilemma of whether to treat domestic awards on par with foreign awards when it came to the question of scrutiny on grounds of public policy. Leading exponents on International arbitration jurisprudence would suggest that the two have to be dealt with separately.xv There seems to be an innate logic in this proposition. In some instances domestic award would involve substantive laws of India and have lay people as arbitrators. In such cases it is important to ensure that Indian law is applied properly, and therefore need for a stricter control would be highly desirous. In the context of a domestic award this question was answered in the case of ONGC v. Saw Pipes.xvi Validity of a domestic award can be challenged on the ground of public policy. Unlike a foreign award, a domestic award could be completely nullified if it violated public policy. ONGC bench went on to define public policy as - a) fundamental policy of Indian Law, b) interest of India; c) justice or morality; and d) patent illegality. The bench reasoned that citizens and residents of the country could not be permitted to transgress Indian law and therefore if a domestic award violated substantive law of the land or was contrary to provisions of the contract, such an award would be set aside as being contrary to public policy of the land. This understanding later came to be referred to as the broad understanding of public policy. Critics of this decision have pointed that it was a fallacy on the part of ONGC bench to include within the realm of public policy mere error of law apparent on the face of the
award.xvii
E NSUING COMPLICATIONS : INTERPRETATION CONUNDRUM This led to a strange scenario. The same expression, i.e. public policy, finding a place in two different provisions of the 1996 Act, was rendered different meanings. A fundamental rule of interpretation of statues is that an expression that is repeated in the statute carries the same meaning.xviii This is subject to an exception namely that of context in which the two
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words are used. Where the context differs the meaning differ. There is however nothing in the Act to suggest a different context, since the term public policy is not defined in the statute.xix F URTHER PROBLEMS Two ideas of public policy operating in two different fields i.e. Saw Pipes for domestic awards, and Renusagar for foreign awards respectively still seemed an acceptable proposition to litigants. The matter however got heavily complicated by some bizarre decisions. Topping the list was Satyam Computers v. Venture Global. xx Venture bench erroneously extended the reasoning of Bhatia International v. Bulk Tradingxxi to conclude that even a foreign award could be set aside provided it was contrary to public policy of India. This decision had widespread implications, specifically a) a foreign award could be set aside on the ground that it violated the domestic public policy (Part I, Section 36), and b) its enforcement could be refused on the ground that it violated the international public policy (Part II, Section 48).xxii The choice of either challenging the award in its entirety or resisting its enforcement remains with the party seeking either of these options. It is evident though that if the entire award is challenged and set aside, there remains no question of seeking enforcement of such an award. xxiii Therefore since domestic public policy provides for a higher threshold, understanding of international public policy becomes a mere academic exercise, threatening to render the whole provision otiose. The second of these decisions was that of Phulchand Exports Ltd v. OOO Patriot. xxiv This case took the question head on, and reasoned that there could not be two different meanings of the term public policy and concluded that the same meaning is carried in both the provisions. Therefore irrespective of whether one is dealing with domestic or foreign award, only one understanding of public policy applies. PRESENT SITUATION
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For a better understanding of the current scenario, it is necessary to understand a basic concept of arbitration. An important reason why arbitration came along as a preferred method was to neutralize an overriding advantage one of the parties might have in a dispute, if it was litigated in that partys home jurisdiction. To avoid a possible bias, in international arbitration jurisprudence, the ability or autonomy of the parties to select a seat of arbitration is firmly entrenched. A seat is the legal jurisdiction to which the arbitration is bound. The seat would provide the curial law and the courts of the seat would supervise the arbitration in accordance with the laws of seat.xxv Thus in arbitration, insofar as jurisdictions are concerned a clear distinction is drawn between seat and the rest. The seat is often referred to as primary jurisdiction, and the others as secondary jurisdiction. In arbitration jurisprudence, it is a settled law globally that the authority to set aside an arbitral award is limited only to courts of the seat of arbitration. Implying that only courts at the seat of arbitration can set aside an award. xxvi Once a challenge is made and is unsuccessful, or not made at all, conclusions of the arbitral tribunal as to the issues in dispute metamorphose into an arbitral award. It is this arbitral award that is then taken to various secondary jurisdictions for enforcement. With the two above decisions, Indian jurisdiction now has assumed the authority to set aside a foreign award on an understanding of public policy that is yet not settled. In light of the above, it is crucial that certain relevant matters be given immediate thought, namely a) whether the manner in which judicial scrutiny of awards has been structured has obliterated the distinction between domestic awards and foreign awards; and b) if the two remain distinct is there a need to give thought to international public policy that would apply solely to foreign awards.xxvii C ONCLUSION Public policy has seen no concrete definition till date. It is arguably difficult if not next to impossible to provide such a definition. At best one could conjure an vague understanding. However even the attempts made by judiciary as noted above clearly indicate a lack of
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clarity on what public policy ought to be in different contexts of domestic and foreign arbitral awards. Lack of clarity or guiding standards, as past experience suggests, opens the possibility of adhocism, leading to a situation where public policy is what the particular judge says it to be. Such indeterminism does not bode well for arbitration in India. R EFERENCES
Constitution of India, Art 51(d) - The state shall endeavour to encourage settlement of international disputes by arbitration. ii The latter two legislations were passed to give effect to two international treaties to which India was party namely The New York Convention on the Recognition and Enforcement of Arbitral Awards 1961, and the Convention on the Execution of Foreign Arbitral Awards 1927 iii Guru Nanak Foundations v. Rattan Singh AIR 1981 SC 2075 at 2076, Desai J observed However, the way in
which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep. Experience shows and law reports bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with 'legalese' of unforeseeable complexity.
iv
5 - Extent of judicial intervention.- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part. v A valid argument since it was modeled on lines of UNCITRAL Model Laws 1985, and not an extension of the previous sets of legislation. This was categorically noted in the Preamble of the Act. vi For instance see Law Commission 176th report on Arbitration and Conciliation (Amendment) Bill 2001, page 7, paragraph 1.3. vii For a lucid summary of both side of the debate see Amelia C Rendeiro, Indian Arbitration and Public Policy , http://www.texaslrev.com/wp-content/uploads/Rendeiro-89-TLR-699.pdf (last updated on 17.06.2013). viii Post Bharat Aluminium Company v. Kaiser Aluminium Technical Services (2012) 9 SCC 552 decision, the applicability of Act is limited to arbitration happening within the territory of India. For arbitration happening under the Bhatia regime, the Act applies even to arbitration happening outside the territory of India unless expressely or impliedly excluded. Interestingly the 1996 Act, though heavily inspired from the UNCIRAL Model Laws 1986 dealing with international commercial arbitration, dealt with both domestic arbitration (Part I) and international commercial arbitration (Part II). This led to concerns of whether interpretation of provisions contained in various parts might lead to conflicting jurisprudence. Fali S Nariman, Ten Steps to salvage arbitration in India: The first LCIA India Arbitration Lecture, 27(2) Arbitration International 115, 121122 (2011). This was not without due justification and was duly noted in the Law Commission 176 th Report on Arbitration and Conciliation (Amendment) Bill 2001, page 8, paragraph 1.5 ix Mr. Justice Burrough, Richardson v. Mellish [1824] 2 Bing 229, 252 It is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from sound law. Some 147 years later in Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, Lord Denning responded, with a good man in the saddle, the unruly horse can be kept in control, it can jump over obstacles. x AIR 1986 SC 1571. It would be instructive to reproduce the obse rvations of the court in this matter From the
very nature of things, such expressions are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from
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extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. Similar ideas were expressed earlier in the case of Murlidhar Aggarwal
v. State of Uttar Pradesh (1975) 1 S.C.R. 575. xi AIR 1994 SC 860, paragraph 64 xii The Act was passed to give effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Award 1957, which reserves the right to each signatory country to refuse enforcement of award, would be contrary to public policy of that country. xiii Factum of complete break and its relevance was noted in Sundaram finance Ltd v. M/s NEPC India Ltd AIR 1999 SC 565, (paragraph 9) The 1996 Act is very different from the Arbitration Act, 1940. The provisions of
this Act have, therefore, to be interpreted and construed independently and in fact reference to 1940 Act may actually lead to misconstruction. In other words the provisions of 1996 Act have to be interpreted being uninfluenced by the principles underlying the 1940 Act. In order to get help in construing these provisions it is more relevant to refer to the UNCITRAL Model Law rather than the 1940 Act.
xiv xv
Cited with approval in Smita Conductors Ltd v. Euro Alloys Ltd (2001) 7 SCC 328, paragraph 12. See for instance observations of Redfern and Hunter noted in the Law commission 176th Report on the Arbitration and Conciliation (Amendment) Bill 2001, page 9. See also Report of Justice Saraf Committee on Arbitration, 2005. xvi (2003) 5 SCC 705 xvii Nariman, supra note 8. Summet Kachwaha, The Arbitration Law of India: A Critical Analysis, 1 (2) Aisa International Arbitration Journal 105, 120 (June 19, 2013) http://www.kaplegal.com/upload/pdf/arbitration-lawindia-critical-analysis.pdf. See also McDermott International Inc v. Burn Standard Co (2006) 11 SCC 181 and Centrotrade Minerals and Metals Inc v. Hindustan Copper (2006) 2 ArbLR 547(SC). xviii A.B.KAFALTIYA, INTERPRETATION OF STATUTES 79-80, (Reprint, 2010) xix Even under the previous regime it was always understood that the idea of public policy had a common meaning and that Indian courts did not recognize anything called international public policy to be applicable only to foreign awards. Fali S Nariman, Foreign Arbitral Awards in India: Problems, Pitfalls and Progress , 6 (1) Journal of International Arbitration 25, 37 (1989). xx AIR 2008 SC 1061. For a critical analysis of this judgment see generally Alok Jain, Yet another misadVenture by Indian Courts in the Satyam Judgments, 26(2) Arbitration International 251-280, (2010). xxi Bhatia International v Bulk Trading SA AIR 2002 SC 1432 extended the application of Part I to even foreign seated arbitration, leading to a scenario that a domestic award came to be understood as those awards which were not a foreign award as defined under Part II of the Act. xxii The term domestic public policy and international public policy is used solely to refer to the differing understanding of public policy utilised to challenge an arbitral award and resist enforcement of arbitral award. xxiii International Arbitration jurists have been grappling with this precise question for some time now. The bone contention is the power of the courts of the secondary jurisdiction. Under International commercial arbitration only the courts at the seat of primary jurisdiction can set aside an arbitral award. The question then remains, what is the status of an award that is set aside in a secondary jurisdiction. Incidentally, this debate itself is becoming secondary to another debate centered about the idea of delocalization of arbitration. The idea of delocalization does away with the importance of seat, effectively then doing away with secondary jurisdiction, and making all states wherever enforcement is sought as primary jurisdiction. Georgios C Petrochilos, Enforcing Awards Annulled in their State of Origin under the New York Convention , 48 Intl & Comp LQ 856, 858 (1999). xxiv (2011) 10 SCC 300, paragraph 13. xxv This supervision is limited to the procedural conduct of the arbitration, and not the merits of the arbitral award i.e. application of substantive laws selected by the parties. xxvi NIGEL BLACKBAY & CONSTANTINE PARTASIDES, REDFERN AND HUNTER ON INTERNATIONAL ARBITRATION, 179 (5th ed. 2009). xxvii Amendments to bring about such state of affairs have been noted in the recently circulated consultation paper by the Ministry of Law and Justice. http://lawmin.nic.in/la/consultationpaper.pdf (June 19, 2013),
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EXAMINING THE INSTITUTIONS FOR PUBLIC POLICY IN INDIA: THE ROLE OF JUDICIARY IN CREATING THE SPACE FOR CITIZEN-CENTRIC GOVERNANCE
PRADIP KUMAR PARIDA INTRODUCTION: Governance legitimizes the state actions and duties as well as responsibilities of a 'citizen' in a given 'state structure'. As per the law of the land 'what is the entitlement of a citizen', keeping in background the political history, socio-economic development, resources available with the government at that particular point of time, social structure, cultural factors, level of participation of the people etc. Hence providing the space for legitimate
entitlement of a citizen in a state and creation of a conducive atmosphere to realize the best potential within the individual concerned are the two key tasks with the government, as far as governance is concerned. This spreads into all the aspects of society - social, economic, political. This spreads from individual to local to regional to national to global level. The fact of the matter is that, automatically an individual becomes a member of global governance process, once he links himself and channelizes his activity from one level to other. It also clovers the arena of State, Civil society and Market. As all of them influences the decision making process and behavior of the individual - 'citizen'. State makes the rules and regulation and implements them through the institutions Legislature (Parliament), Executive (Bureaucracy) and Judiciary (Supreme Court, High Court and Lower Courts) other constituent bodies. In other words the separation of powers among the institutions of democracy propounded by Montesquieu and the check and balance among them ensures that none of them transcends the barriers allotted to them as per the constitutional provision of the country.
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In common parlance it is presumed that accountability, empowerment, participation, accessibility to basic services in public domain and transparency are at the heart of governance system in any country. Hence governance refers to traditions, norms, institutions, practices, space to the citizens in terms of participation and the procedures by which individuals and groups exercise their power respectively in the making of public policy. It also gives space to the citizens by making them actively involved in implementation of various programmes. It gives importance to the mechanisms where the voices of the people can be heard properly. However accountability may not necessarily be considered as accountability from government side/ officials/ administrative machinery to people. It is also other way round, which means people should be accountable to other
fellow citizens as well as government, law of the land, constitutional obligations and duties as citizens for the day to day actions in a true civic sense, by maintaining the spirit of democracy. T HE SCENARIO ACROSS THE GLOBE: With the unset of Globalization process contextualize the in recent times it becomes more relevant to
space for citizens in the contemporary governance process of any political system, administrative structure, public policy
country, depending upon the
process, role and responsibilities of the government and the duties and obligations assigned to citizens. How the citizens participate in the governance process at the local level and more particularly the local bodies or organizations or institutions of local governance - be it political, economic, cultural activities, taxation system or decision making process. It becomes questionable, when there is lack of transparency and accountability from the local bodies/ local government in terms of sharing power or resources with the common peoplecitizens - which otherwise is the crux of the 'decentralized democracy' or 'empowerment of people' - the basic philosophy and objective behind formation of local self government' 'self-ruling institutions'. In certain countries, the democratic form of government has proved to be ineffective for checking swindling of public funds for private gains. Mis-governance is found to be all round, especially in the developing countries, in rampant degree. The
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concept of good governance derives its relevance in the context lack of governability or crisis of governance system. Millen Development Goal (MDG) of the United Nations mentions about the minimum amount of development standards or parameters a country must achieve in this millennium, so that there will be universal minimum standard of living across the globe. It also mentions about removing corruption, red-tapism and creating more transparency, accountability, more information in public domain, more participation of the people in administration, regulation of revenue and taxation system etc. How does one achieve that goal? What are the mechanisms? When we talk about Dignity with Development", how much dignified our public policy in terms of giving the space to citizens. As we know the economic development will lead to creation of more social opportunities and will widen
the scope of human civilization in terms of sustenance. Has it happened in reality across the globe? These are crucial questions before us. CRITICS OF CONTEMPORARY SITUATION: It is found that Government is one of the most powerful institutions in our society in any system of governance. Due to free market, privatization, structural adjustment, deregulation and decentralization, the traditional role of government, has changed a lot. The actors of governance, i.e. Corporate Sectors/ Large Industries/ Big Corporations having multinational presence are playing a significant role in market economy and civil society or Non governmental organizations are in development sectors are playing important role in this context. It is perceived that the free private enterprise can bring economic prosperitynationally and internationally. The advocates of neo- liberal paradigm supported the idea that, governmental interference leads to slow growth, hence less productivity in economic sphere. On that ground, it was perceived that the less governmental interference will lead to give a free hand to market which will ultimately control itself by the self regulating mechanism. Naturally it will lead to more competition among the players and the winner will survive. It will create a spirit of free competition. But will it be fair? What about the
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unequals, marginalized, down-trodden, sub-alterns or the people who are not on equal footings with the others? Can they compete with each other in the same platform? Though the proponents of neo-liberal favors minimalist role of government and prefers market can do everything on the basis of principle of market economy, the most important point is that people in a democracy, are not merely customers or clients of the
government. Rather they are subjects - citizens and bounded by mutual obligations and are entitled to enjoy public infrastructure provided by the government, such as roads, ports, communications, court of law, monetary system, public sanitation etc. In this context, it is argued by many that the pure private sector management model cannot cater to the needs of the citizens. It may not give justice in the public domain, particularly in public distribution system. As a matter of fact private goods are necessary. But they are worthless without public goods - such as policing and economic policies, meant to protect citizens. Similarly primary education, primary health care facilities, village roads in rural areas, public distribution system, ration to poor people, child care facilities etc. Though there are certain areas where public system along with private players can play complimentary role to each other. For example, media, it must not be fully under government control nor
should be it is entirely in private hands. However the objective of democratic government is to create a conducive environment and protect free people and supportive institutions, not necessarily free private groups or enterprises. R OLE OF J UDICIARY IN THE DEMOCRATIC G OVERNANCE OF INDIA The framers of the Indian constitution preferred the west minister model of parliamentary democracy in India. However its implementation has created certain problems subsequently. Though as per the norms of democracy, the institutions of democracy, i.e.
executive, legislature and judiciary along with a vibrant press and an active civil society is very much required for the successful function of parliamentary democracy, somehow or the other, that could not be maintained in India in last 65 years of function of the
democratic polity. Some institutions started to erode gradually soon after independence. The microscopic examinations of institutions will give us an impression that institutions
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like- Parliament and Legislature has not come up to the expectation of the people in general and constitutions farmers in particular. However Judiciary, in spite of lot of pressure and encroachment of its due space from the side of other institutions tried to maintain its autonomy, independence, impartiality, neutrality to the largest extent. Not only that, but also it has started to play very pro-people role in subsequent years. The famous judgments delivered by Indian Judiciary in cases like Champakam Dorairajan Vs. Government of Tamilnadu, Golaka Nath case, Kesavananda Bharati case, Minerva Mill case clearly reflects the idea of socialistic pattern of society in the back drop of fundamental right. The supremacy of Fundamental right over Directive Principle of State Policy and the tussle between Parliament and Judiciary in this context is very much pertinent to discover the fact that Supreme Court is the custodian of the fundamental rights of the citizens. The doctrine of basic structure was implemented, when there was every possibility of encroaching the rights and powers of the Supreme Court from the Parliament side. The Supreme Court was of the opinion that Parliament has the sovereign authority to change any part of the constitution, but without altering the basic structure of the constitution as it was propounded by the framing fathers of the Indian constitution. Similarly in the Meneka Gandhi case, it was interpreted that the right to life also include to live with dignity rather than merely animal existence. I n the famous Bomai case, the judgment of Supreme Court has changed the whole frame work of Union-State relation. Subsequently Visakha Case (gender sensitivity in work place), Unnikrishnan case and many other judgments reflect the concern of the Judiciary on the social significance issues. The subsequent judgments on reservation policy which says reservation for SC, ST, physically challenged, marginalized sections of the society- 27% reservation for OBC, reservation for women in elected bodies of democracy at grass root level, right to education as a fundamental right, right to property of women over parental property and many other judgments reflects the proactive role of supreme court in its attempt to create citizen-centric governance.
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In recent times the judgments of Supreme Court on Forest Rights Act, environmental clearance for big dams/ industries/ mega projects, Tribal Right Act, the closure of polluting industries on the corridor of rivers, conversation of diesel buses to CNG to minimize the pollution, the problems related to displacements and resettlement of people due to mega dams and big projects or construction of highways- the compensation involved in it, i.e. Narmada Bachao Andolan case are milestone in this direction. The latest judgment which clearly says that in tribal areas land cannot be acquired without the permission from Gram Sabha with the consent of the majority. There should adequate compensation to them in terms of protection of their life and livelihood. It also mentioned about proper housing, cultural factors social issues, psychological issues related to displacement must be taken into consideration before taking final decision. The honorable Supreme Court asked the question What do you mean by public purpose? to government of India. If it is meant to build school, hospitals, roads, then it is understood. But by taking land from farmers and agriculturist and handing it over to private industrialist in a cheap rate wont qualify to be public purpose. RTE act where a poor children can take admission in a neighborhood good private school irrespective of parents income or education, admission of poor patients in big private sector hospitals, which was otherwise denied due to financial issues, were also considered as propos judgments. As the corporate players in health, education are getting land from union or state governments in cheaper rate respectively, it is their social obligation to look into the welfare of the socially and economically weaker sections of the society. The honorable courts have made it obligatory on their behalf. In other words if we look into public policies of our country in recent past, it is observed that there is a right driven approach to all theseRight to Food, Right to Education, Right to Work/ Employment, Right to Health etc. All these are coming under the Right to Life. Similarly on the issues related to bonded labour, child labour, maid servant, domestic violence, unorganized sector workers, honorable Supreme Court has given land marking judgments on occasions.
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The revolutionary steps taken by the Judiciary in accepting PIL- even if a post card can be taken as filing a case by a poor person who cannot afford to go to court or even a third party- who is not at all related to this case can file a case by simply writing in a post card to Supreme Court and on merit of the case, proceedings can be initiated. It has dramatically changed the whole notion of litigation particularly those having public policy implications. Through this number of issues related to society and public in general, be it environment, education, mining and many other issues are discussed by judiciary. Similarly resolving the legal disputes which are lingering on for years by resolving through mutual consent of aggrieved parties are taken into consideration. The completion of the social litigation
problems by Lok Adalat, where and the various alternative dispute resolution (ADR) mechanism adopted by the Judiciary has shown exemplary initiatives for social purpose. Similarly right to privacy in the cases related to rape, molestation and other inhuman activities, judiciary has been vocal in stringent punishment to the perpetrators of the crime as well as protection of the privacy and liberty of the person concerned. In recent time it has came out with number of land marking judgment, Nirbhaya case being the watershed among all of them. In the enactment of Right to Information Act which ahs accelerated the process of putting information in public domain by the public authorities to the needy citizens. It has not only aimed at removing red tapism, but also removing corruption, unnecessary bottlenecks, increasing transparency, accountability as well as putting the information in public
knowledge. Similarly enactment of LOKPAL bill and in framing the corruption free society in India, the Indian Judiciary in general and Supreme Court in particular has played significant role in recent times. It has instructed the other branches of democracyLegislature and Bureaucracy to be pro active in the citizen centric governance system. Reason being the space created due to lack of proper activities by other institutions of democracy has led to vacuum, which is now filled up by the Judiciary to certain extent. Rather it is found on number of occasions, the other institutions protest a lot, wherever they found a threat from judiciary in terms of their inactiveness or surpassing their limit, they do something, unconstitutionally. Which is otherwise might create an imbalance among the
institutions of democracy. Instances are there where institutions, i.e. - parliament, executive or media tried to influence judiciary on occasion, going against the norms of democracy. In the context of CBI it has termed as a parrot in cage and argued for its autonomous status and free hand from the clutches of the ruling regime at the centre. It has also taken seriously matter related to tainted politicians who are contesting elections and has given the judgment to debar candidates having criminal records or punished by various courts of the country. Similarly in the ballot system introduction of an option named none of the above in the ballot paper is reflection of the space given to ordinary citizens to have a strong opinion in terms of candidature and to have an independent opinion in this regard. Credit goes to honorable Supreme Court in this regard. C ONCLUSION: Democratic governance wont have any value to an ordinary Indian citizen until and unless all the sections of the society are benefitted from the policies and programmers of the
state. That would require all the institutions of democracy to be fully transparent and accountable to the people who would have a substantive role to participate in the decision making process as well as implementation. Then only the problems of the marginalized, voice less, the sub-alterns will be addressed properly. However the proactive role shown by Indian Judiciary starting from the lower courts to High Court to Supreme Court and the institutions like National Human Rights Commission (NHRC) and State Human Rights Commission (SHRC), number of organizations/ NGOs working in the domain of Civil Society for the protection of basic rights/ fundamental rights/ human rights of the common citizens of the country, are positive signs in this context. People have not lost the trust and still hope and confidence upon certain institutions of democracy. Reason being the other institutions of democratic governance in India has not come up to the expectation level of citizens, where as Judiciary is playing a significant role in this context to restore the life of a citizen with dignity. Hence the space, image, autonomy, independent nature of judiciary must continue to strive for the future success of democracy in India. None the less the
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activities and responsibilities of other institutions of democracy will be equally responsible to create an atmosphere conducive for function of democracy. R EFERENCES:
1. 2. 3. 4. 5. 6. 7. 8. 9. Bhaduri Amit & Deepak Nayar, The Intelligent Persons Guide to Liberalization, Penguin, New Delhi, 1996. Soros George, On Globalization, Viva Books Private Limited, New Delhi, 2004. Mathur, Kuldeep, From Government to Governance, NBT India, New Delhi, 2008. Bhagwati Jagdish, India in Transition, Clarendon Press, Oxford, 1995. Kashyap, Subash, Our Constitution, NBT, New Delhi, 1998. Basu, D.D., Constitution of India, Prentice Hall India, New Delhi, 1998. Bhaduri Amit, Dignity with Development, NBT, New Delhi, 2004. Jayal, Nirja Gopal(ed.), Indian Democracy, OUP, New Delhi, 2006. Mahajan, Gurpreet, Multiculturism & Democracy in India, OUP, New Delhi, 2004.
10. Hasan, Zoya ( ed.), Democracy in India, OUP, New Delhi, 2008. 11. Parekh, Bhikhu, Multi-verse of Democracy, Orient Longman, New Delhi, 2000.
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DISTINGUISHED JURIST: A TALE OF A FAILED CONSTITUTIONAL EXPERIMENT

RABINDRA KR. PATHAK SETTING THE STAGE Jurist is a word of lexical ambiguity evoking many a forensic imagery. Every lawman is well acquainted with this invisible yet omnipresent creature, very much like the reasonable man of the common law. Indian constitution gives due recognition to jurist under article 124 without defining it. But this has given rise to a multitude of predicaments, foremost one being: who is a jurist? Answer to this question may well address many other ancillary riddles. The wide conceptual canvass of the term makes it a tad difficult to decipher the import of what it exactly implies. A laymans understanding of the term jurist is bound to be different from that of a lawman reason being a journalistic appreciation of the term as we find in newspapers and electronic media. Can anyone who has been associated with law be assigned the tag of jurist? What does the term, constitutionally speaking, imply? Present paper tries to explore such other questions, and the constitutional ripples the expression seemingly creates in view of its continued ignorance. J URIST: A SEMANTIC SOJOURN The word jurist is much debased in India; we have developed a tradition where knowledge, virtue and even wisdom come ex officio, to a point that every judge, sitting or retired, every attorney and Advocate General, other law officers, chairpersons of Bar Council and
Associations, law ministers, senior members of the Bar, and even their leading munshis, are described as jurist!.i It is this misuse or overuse that has added to the ambiguity of the term. Be that as it may, Baxi defines jurist as one who seeks to usher in the jurisprudence of fresh start(s) or as today most of us would name, perhaps, too readily as an epistemological break.ii They are essentially legal experts, and they belong to eras in the development of the law in which a special class of experts exercise a predominant influence upon the
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evolution of the law. iii Stone describes a jurist as a secular man learned in law. iv In
England, this word is reserved for those having made outstanding contributions to legal thought and legal literature. In the US, it is rather loosely applied to every judge of whatever level, and sometimes even to non-scholar practitioners who are well respected.v According to Allen, however, the expression is not confined to jurists in the sense of learned writers upon legal topics; it includes all those whose special function is to expound and apply customary law. vi He cites example of ancient societies where the expression would comprise semi-fabulous code-makers and law-givers.vii Historically, to use the words of Allen, the very word jurists suggests that remarkable group of men who, during the first two centuries of the Roman Empire, built an imperishable legal document. viii The period of classical jurists ran from the first century BC to the middle of the third century AD. ix Jurist was the central figure in the Roman Legal System, since statute law was relatively unimportant in the private law, and neither magistrate nor judge was necessarily or normally learned in law. The jurist influenced the law at every point.x The Roman jurists were not judges, and their involvement in adjudication was very indirect. Jurists were individuals of high social rank who devoted themselves to the study, exposition and analysis of private law. C ONSTITUENT ASSEMBLY D EBATES H V Kamath had moved the amendment for the addition of jurist-clause to article 124. He observed in the constituent assembly that amendment of mine is based on the provision relating to the qualifications for judges of the International Court of Justice at Hague.xi Thus began the story of jurist provision under the Indian constitution. However, it does entail one simple yet important question: What is the meaning of the word jurist that the constitution envisages under article 124 of the constitution? To make the ambiguity
surrounding the word jurist even more impenetrable, the framers used the word distinguished, making the entire expression a qualified criterion for appointment of a judge. We need to determine in what sense was the expression distinguished jurist used under the constitution when the framers of the Indian constitution were deliberating over
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inclusion of the expression. During the Constituent Assembly Debates, H V Kamath moved a little amendment to open a wider field of choice for the President in the matter of appointment of judges of the Supreme Court. xii The proposed amendment was for the inclusion of a distinguished jurist as one of the criteria for being appointed as a judge of the Supreme Court. Kamath said:xiii I am sure that the House will realize that it is desirable, nay, essential to have menor for the matter of that, womenwho are possessed of outstanding
legal and juristic learning. In my humble judgment, such are not necessarily
confined to Judges or Advocates He found support in M Ananthasayanam Ayyangar.xiv It should, however, be pointed out here that Ambedkar had some reservations as to the use of the word distinguished. One of the suggestions made to him was to use the word eminent instead. Unable to make up his mind on the use of proper word, he left it to the Drafting Committee to decide whether it would accept the word distinguished or substitute eminent or some other suitable word. xv Be that as it may, one of striking and notable features of the debates was the conspicuous absence of any discussion as to who was to be regarded as a jurist. There seems to have been an uncontested and implied consensus among the members of the Assembly as to the meaning of jurist. While framers clearly spelt out who amon g the judges and advocates were to be considered suitable for being appointed as a judge of the Supreme Court, no such criteria was formulated to identify the distinguished among the jurists, a term left undefined by the framers. J URIST UNDER INDIAN C ONSTITUTION: DEFINITIONAL CONTOURS Preceding discussion indicates that a jurist in the context of article 124(3) implies a legal
expert xvi , having outstanding legal and juristic learning xvii , who may not necessarily be
judge or advocate, and may be some eminent person or writerxviii or an academic lawyer given the fact that one of purposes behind inserting jurist under article 124 was to have a wider field of choice which implies that framers by using the expression distinguished
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jurist intended to refer to legal experts other than advocates and judges. A careful reading of article 124 shows quite clearly that requirements for a judge or explicitly mentioned therein, and therefore an advocate are
the expression distinguished jurist was
intended to cover people other than judges and advocates. That is, such a meaning seems apparent when we try to infer the import of the word jurist in the context of article 124 of the constitution, notwithstanding the literal meaning of the term. As Gadbois, Jr. argues that No definition of distinguished jurist is offered, but the framers evidently intended such persons or eminent law professors who failed to meet one of the first two criteria.xix As to the expression, the fuzzy ambiguity of the expression used in the above article suffered a semantic twist when the word distinguished was used to signify the suitability of the person who would be appointed as a judge. However, a jurist is a jurist. How is it to be decided that a jurist is a distinguished jurist? It is as difficult to decide who a distinguished jurist is as is the task of defining who is a jurist, especially in India. xx It is submitted that framers of the constitution could have avoided using the word distinguished as it seems mere ornamental and devoid of any true intent. Maybe, it was one of the reasons that Ambedkar was not comfortable with the idea of using the word distinguished.xxi Be that as it may, Dhavan interprets the distinguished jurist clause as including any person who can look at Indias problems taken as a whole and that it means a particular class of people who have what might be called a quality of judicial statesmanship. These are people who can rise above the ethnocentric insularity of their disciplinary or professional biases.xxii DOES HIGH COURT NOT NEED A JURIST? Prof Shibban Lal Saksena during the constituent assembly debates moved an amendment for the inclusion of a provision providing for the appointment of distinguished jurist as a judge in the High Courts. He said: When we have already made this provision in the case of the Supreme Court, I do not see any reason why we should not provide that a distinguished jurist should be appointed as a judge of the High Court also.xxiii It was through the forty second amendment to the constitution that it was finally provided that a jurist shall be eligible for appointment as judge of the High Court. One of the seeming reasons behind
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such a constitutional move may have been the thinking that experience gained at the High Court would be helpful to the jurist-judge when she is finally appointed to the Supreme Court. The constitutional life of the provision was, however, cut short through forty-fourth amendment to the constitution in 1978. It was one of the noble constitutional spin-offs of an otherwise well despised emergency period while its deletion remains an unaccounted ambiguity of the constitutional history of India. It has been pointed out that because it was brought in by the 42nd amendment during emergency and the 44th amendment was largely meant to undo the changes made by the 42nd. No reasons were given by either case.xxiv Basu commenting on the removal of Sub-clause (c) of article 217(2) writes: Logically the omission of sub-clause (c) from article 217(2) after having once inserted it by amendment would show that it is deliberate, and suggests that a distinguished jurist is a misfit for the high Court though eminently fit for the Supreme Court. xxv High Court along with the Supreme Court is the only court entrusted with the jurisdiction to interpret the constitution, and therefore, there are reasons enough to look askance as to ability of a judge to decide constitutional cases when he has no pole-star of jurisprudence to guide him, (and when) he is most likely to drift in a turbulent sea. xxvi A judge who has no sure foundation of constitutional jurisprudence would fail to perform the primary function of a judge of a superior court.xxvii W HY WE NEED JURISTS AS JUDGES? It is interesting to note that in the draft constitution, there was no provision for the appointment of non-practicing lawyers as judges of the Supreme Court. It was during the consideration stage of the draft that the provision for a distinguished jurist was included.xxviii One of the apparent reasons put forth was that it would enable the Supreme Court to get the benefits of the talents of distinguished non-practising lawyers.xxix A non-practising lawyerjudge, it has been argued, might be in a better position, because of his breath of outlook and freedom from a narrow and technical approach to law, to deal with the problems of public law.xxx Basu believed that infusion of academic jurists of the right order into the highest tribunal may lead to its enrichment.xxxi He quotes Justice Frankfurter who once said: One
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is entitled to say without qualification that the correlation between prior judicial experience and fitness for the functions of the Supreme Court is zero.xxxii Though he concedes that it may not be literally true of India, he makes a noteworthy point when he says:xxxiii For the highest tribunal of the land, a solid foundation of the highest juristic principles is no less important than mature experience of the procedure in Courts.the superior Judiciary in both France and West Germany is recruited exclusively from academic jurists, having no prior judicial experience at all. In the United States of America, judges of the Supreme Court come from all walks of life as Article III, Section 1 says nothing about the qualification of judges or mechanics of choice.xxxiv A Supreme Court judge can be foreign born or wholly without legal experience or training.xxxv It is noteworthy that some of the greatest judges of the American Supreme Court had no judicial experience before they became judges. Judges like Marshall, Story, Taney, Hughes, Brandeis, and Frankfurter are some of them.xxxvi Of them all, it will not be out of context to be reminded of the background that Marshall had, a judge about whom James A Garfield once said Marshall found the constitution paper; and he made it power. xxxvii The meagerness of his education and training both generally and in law itself xxxviii , is very surprising considering the heights he reached in law eventually. His formal schooling consisted of a year under the tuition of a clergyman, as well another under a tutor who resided with the family.xxxix His study for the bar was also equally rudimentary.xl All this goes to show one thing: the argument that a jurist lacking procedural expertise is not suitable for being appointed as a judge of the Supreme Court, does not hold much water. Arguendo, even if out of the 25 judges of the Supreme Court, few are academic lawyers lacking expertise of the procedural knowhow of court proceedings, their contribution to the cause of justice will be far greater compared to the loss the Court may have to suffer because of their lack of proper understanding of procedural laws. A judge who has a greater command over juristic aspects of law is bound to be far better a judge vis-
-vis other judges, and as regards the procedural aspect of court proceedings, a jurist before
being appointed as a Supreme Court judge may be required to spend some time in high
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courts as it will take care of the incapacity arguably caused because of not having much depth in procedural law. Once it becomes a normal constitutional practice to appoint jurist as judges of the Supreme Court, it will be open for the Supreme Court to make rules under article 145 of the Constitution providing for the inclusion of a jurist as least in cases involving a substantial question of law as to the interpretation of the Constitution or for the purpose of hearing of any reference under article 143 of the constitution given the fact that the word including used in article 145 indicates that the list provided therein is not exhaustive. The point raised deserves attention in view of the observation that the power to make rules (under article 145) is in aid of the power of the Supreme Court, under article 142, to make such rules as is necessary for doing complete justice in any cause or matter pending before it.xli C ONCLUSION Surprisingly, art.124 (3) (c) has been forced to be one of the silences of the constitution. Even the judicial decisions while dealing with the questions of appointment of judges have constantly been ignoring the above provision, regardless of the advantages the judiciary, and the legal system, stand to gain. There are only occasional and mere passing references. At a time, when the judiciary, especially the Supreme Court, requires more competent and suitable judges, utilization of the provision would have infused a new life and vigour to an already over-burdened judicial system. Continued ignorance of the jurist-provision under the constitution is reflective of a deep-rooted constitutional crisis. It shows class hegemony of those who believe in maintaining status quo, for reasons variedly debated, though best known to them, or maybe as Basu prophecies, one of the reasons behind the apathy towards not appointing jurists as judges may be that it is a new experiment in India xlii and that it will take some time and effort before some appointments are made on the basis of above criterion. But it seems, in view of the developments that have taken place since the adoption of the provision that the experiment has failed.
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R EFERENCES
i
Upendra Baxi laments the use of the word jurist in India the way it is used. See, Upendra Baxi, Remembering Justice Hidayatullah, (1993) 1 SCC (J). ii Upendra Baxi Revisiting Social Dimensions of Law and Justice in a Posthuman Era, 2007 (1) Law, Social Justice & Global Development Journal (LGD), available at http://www.go.warwick.ac.uk/elj/lgd/2007_1/baxi iii A W B Simpson, Lord Denning as Jurist in J L Jowell and JPWB McAuslan (Ed), Lord Denning: The Judge and the Law 442(2008, Indian Reprint) Emphasis added. iv See, Julius Stone, Social Dimension of Law and Justice 126-128(Indian reprint 1999). According to him, jurist class emerged after the rise of the political class and the fall of the priestly monopoly. v Bryan Garner, A Dictionary of Modern Legal Usage 324(1987) vi CK Allen, Law in the Making 112 (1997, Indian Reprint)
vii
viii
Ibid.
Supra note 6 at 116 ix See, Patrick Glenn, Legal Traditions of the World 130 (2004) x NGL Hammond & H H Scullard (Ed), The Oxford Classical Dictionary 570(1973). when in the sixth century, Justinian undertook his great compilation, it was chiefly to jurists long dead and gone that he went for the wisdom of the law. C K Allen, Aspects of Justice77(1997, Indian reprint) xi CAD, 24th May 1949 at 241. xii CAD, 24th May, at 241. xiii Ibid. Emphasis added. xiv Emphasis added. He said: There are many eminent persons, there are many writers; there are jurists of great eminence. Why should it not be possible for the President to appoint a jurist of distinction, if it is necessary? As a matter of fact, I would advise that out of the seven judges, one of them must be a jurist of great reputation. CAD, 24th May at 254. xv CAD, 24th May, at 257-8 xvi Supra note 2 xvii Supra note 11 xviii Supra note 12 xix George H Gadabois, Indian Supreme Court Judges: A Portrait,Vol. 3, No. 2/3, Law and Society Review (Nov. 1986Feb 1969) at 318 xx See, Supra note 1. xxi Supra note 13 xxii Rajiv Dhavan, Justice on Trial 80(1980) xxiii See, CAD, 7th June, 1949 at 662. xxiv Based on the communication the author had with Subhash C Kashyap. xxv D D Basu, Commentaries on the Constitution of India, Vol. H 238 (1990) xxvi Id. at 239 xxvii Supra note 23 xxviii M P Singh, V N Shuklas Constitution of India 414(2001)
xxix
xxx xxxi
Ibid.
MC Whinney, Judicial Review (1969) , as quoted in MP Jain, Constitutional Law of India 197 (2005) D D Basu, Commentary on the Constitution of India (G-1) 47(1993)
xxxii xxxiii
Ibid. Ibid. Also see, SP Sathe, Judicial Activism in India, 300-301(2004). Sathe argues that it will in the long run
benefit the legal education and scholarship if jurists who might be law professors or researchers are considered for judicial appointments. Besides, Justice Frankfurter, oft-quoted example in this context, he gives example of Justice Bora Laskin who was appointed to the supreme court of Canada straight from the Toronto University Law School. xxxiv T K Tope, Constitutional Law of India 618(2010) xxxv E.g. Frankfurter, J was foreign-born and Jackson, J did not have a law degree. Tope cites the example of Justice Samuel Miller who earned a medical degree and practiced medicine for more than a decade. Besides,
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Chief Justice Taft was Dean of Cincinnati Law School. That is, there is rich tradition of appointing law professors and academicians as judges of the Supreme Court in the US. xxxvi Supra note 33 at 618 xxxvii Bernard Schwartz, Some Makers of American Law 28(1985)
xxxviii xxxix
Ibid. Ibid. For the rest, his learning was under the superintendence of his father who, Marshall himself
concedes, had received very little education.

xl xli xlii
Ibid.
D D Basu, Commentary on the Constitution of India, Vol.H, 34-35(1990) Basu op.cit. at 47.
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ROLE OF ADR IN INVESTOR-STATE DISPUTES

SUKANT VATS INTRODUCTION In contemporary international investment law, international arbitration has established itself as the main option through which foreign investors can pursue claims that they have against a host State resulting from an investment dispute. Provisions on investor State dispute settlement (ISDS) are enshrined in almost all contemporary international investment agreements (IIAs) i . To provide in IIAs that arbitration and not litigation in national courts should constitute the main method to resolve investment disputes is considered as an important element of investment protection. Furthermore, international arbitration has long been seen as the optimal way to address and resolve disputes between investors and States, and is to some extent still considered as such today. It depoliticizes investment disputes, assures adjudicative neutrality and independence, and was often perceived as a swift, cheap, flexible and familiar procedure. Moreover, international arbitration is seen to be offering the parties a possibility to exercise a substantial amount of control over the litigation procedure. It further assures that awards are enforceable and creates a sense of legitimacy RAISON D'TRE FOR SETTLING INVESTMENT DISPUTES The Settlement of disputes between host states and foreign investors is a particularly important aspect of the legal protection of foreign investments. In the absence of other arrangements, a dispute between a host state and a foreign investor will normally be settled by the host states domestic courts. From the investors perspective, this is not an attractive option. Rightly or wrongly, the courts of the host state are not seen as sufficiently impartial in this type of situation. In addition, domestic courts are usually bound to apply domestic law even if that law should fail to protect the investors rights under international law. In
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addition, the regular courts will often lack the technical expertise required to resolve complex international investment disputes. Domestic courts of other states are usually not a realistic alternative. In most cases, they lack jurisdiction over investment operations taking place in another country. In addition, sovereign immunity or other judicial doctrines will often make such proceedings impossible. Additionally, diplomatic protection was a frequently used method to settle investment disputes. It requires the espousal of the investors claim by his or her home state and the pursuit of this claim against the host state. This may be done through negotiations or through litigation between the two states before an international court or arbitral tribunal. But diplomatic protection too has several disadvantages. The investor must have exhausted all local remedies in the host country.ii Moreover, diplomatic protection is discretionary and the investor has no right to it. Also, diplomatic protection is unpopular with states against which it is exercised and may lead to tensions in international relations. Not surprisingly, developing countries do not like being leaned upon by powerful industrialised nations. Therefore this method carries political disadvantages for the investor and for both states. It may cause diplomatic friction between the states concerned and cast a shadow over their relations.
Content and Trend of Investor State Arbitration (ISA) As is understood, Investor-state arbitration is a provision in international trade treaties and international investment agreements that grants investors the right to initiate arbitration proceedings against foreign governments in their own right under international law. iii Therefore, the presence of arbitration clause in the investment agreements provide a sort of rather quick and efficient mechanism of dispute resolution. There is more often a preexisting agreement to arbitrate which flows from the parties own willingness, and which exists due to parties accessioniv to investment treaty in general. However, the lack of pre-
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existing agreement to arbitrate does not mean that arbitration cannot happen. Parties may choose to rely on arbitration any time, provided the parties have given their free consent. One of the reasons behind ISA is that the investors cannot afford to take recourse to the traditional litigation because the national court system of host state, as has been experienced widely, can be overly delayed, costly, and most importantly, ineffective in rendering harmonious justice to the parties concerned.v This is also desirable on the part of host state to see the dispute getting resolved quickly, for the simple reason, that a long trial in the court can ill-impact the national economy. Another aspect in ISA is the nationality issue which is very important part of the
investment arbitration. The investors nationality determines from which treaties it may benefit. If the investor wishes to rely on a BIT (Bilateral Investment Treaty) it must show that it has the nationality of one of the two States parties. If the investor wishes to rely on a regional treaty, such as NAFTA (North America Free Trade Agreement) vi or the ECT (Energy Charter Treaty)vii or SAFTA (South Asia Free Trade Agreement), it must show that it has the nationality of one of the States (parties) to the treaty. If the investor wishes to rely on the ICSID Conventionviii it must show that it has the nationality of a State party to the ICSID Convention. In addition, it must show that it does not have the nationality of the host State. The growing significance of ISA can be understood from the fact since the late 1990s the number of investor-state disputes has increased sharply. In 1997, 19 known cases were brought against states. By 2007, there were over 250 known cases, and more than 450 by the end of 2012.ix Some of them are enormous in terms of the amounts at stake and potential impact on the parties to the dispute. Others are just large. In the history of ICSID, the lowest awarded amount ever was US$ 460,000 in Asian Agricultural Products Ltd. v. Sri
Lankax, and the highest US$ 1,769,625,000 in Occidental v. Ecuadorxi, As of 30 June 2012,
ICSIDs registered cases were distributed across the economic sectors as follows: oil, gas, and mining (25%), electricity and other energy (13%), other industries (12%), transportation (11%), construction (7%), financial (7%), information and communication (6%), water,
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sanitation, and food protection (6%), agriculture, fishing, and forestry (5%), services and trade (4%), and tourism (4%). xii The data above shows that investor-state disputes are burgeoning at a quick scale in a range of economic areas. Commercial Arbitration and Investment Arbitration In the realm of international arbitration of disputes, two terms are frequently used, namely, commercial arbitration and investment arbitration. Both are sometimes interchangeably used, but they do not carry the same meaning. Commercial arbitration has, of course, a tradition of many centuries, both at the domestic, but also at the international level. Investment arbitrations have also existed to some extent for quite some time as we know from older cases. But it became a widely used general field of international dispute settlement only when the first bilateral investment treaties (BITs) were concluded starting in 1958 and when the World Bank initiated the ICSID-Convention in 1966.xiii Back in the early days there were just few cases of ISA, but the amount and volume of ISA cases have grown manifold. Investment arbitration is by now chosen as the dispute settlement mechanism in thousands of treaties and investment contracts and leads to hundreds of cases per year in practice between states and foreign enterprises. Further, Commercial arbitration has close parallels to litigation. xiv Cases arise when the parties to a dispute have a pre-existing agreement, often enshrined in the contract giving rise to the dispute, to settle any difficulties by arbitration rather than litigation. The parties to commercial arbitration are mostly private companies and, to a lesser extent, state-owned enterprises. Investment treaty arbitrations on the other hand arise out of one of the various existing investment treaties. Many of this second category of disputes, however, arise out of Bilateral Investment Treaties (BITs), xv under which pairs of countries have agreed to reciprocal obligations toward investors from each others jurisdictions. There are as many as 3,000 such treaties in existence.xvi Further the term investor may be taken to mean all kinds of private enterprises which have invested in different sectors of the host state. There can be
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investment made by a public agency of one country in another country. So state-owned corporations can also be involved in ISA. INVESTOR-STATE ARBITRATION: GROWING CRITICISM The initial euphoria about ISA has in the recent years subsided substantially. This is mainly because of the evident shortcomings and problems which have now come to characterise the ISA mechanism. To put it mildly, in the words of Professor Christopher Schreuer: the initial enthusiasm has given way to a more sober assessment.xvii Increasingly, states and investors express concerns regarding the costs associated with the arbitration process. Some states are refusing to comply with arbitral awards. Other states hesitate to sign new bilateral investment treaties, or even rescind from old ones. Related issues attract the attention of the public. Again, in recent years the burgeoning growth in investment arbitration has not gone wholly unopposed with heavy criticisms coming from NGOs, media, and certain governments. Arbitral tribunals are accused of being shadow governments dispensing justice behind closed doorsxviii The perceived lack of transparency and spiralling costs of investment treaty arbitration, coupled with the admittedly small pool of specialists from which the arbitrators are drawn and the alleged opportunism of investors,xix have led to a so-called backlash. This backlash has only been exacerbated as the number of investment arbitrations has grown, sometimes resulting in the the parallel existence of arbitral tribunals. xx Parallel tribunals can give rise to awards with inconsistent conclusions, and which may even be scandalously contradictory. Apart from issue of lack of lack of transparency, other notable shortcomings also feature prominently in the ISA landscape. An important source of these shortcomings is the special nature of international investment arbitration, involving a sovereign as a defendant and challenging acts and measures taken by a sovereign State. The international arbitration procedure also differs from litigation in domestic courts in that the dispute is governed by international law and based on the violation of an international treaty, where arbitration is
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the main option made available to investors. Another peculiarity is that the nature of the relationship between the investor and the State involves a long-term engagement; hence a dispute resolved by international arbitration and resulting in an award of damages will generally lead to a severance of this link. Moreover, the financial amounts at stake in investorState disputes are often very high. Resulting from these unique attributes, the disadvantages of international investment arbitration are found to be the large costs involved, the increase in the time frame for claims to be settled, the fears about frivolous and vexatious claims, the general concerns about the legitimacy of the system of investment arbitration as it affects measures of a sovereign State, and the fact that arbitration is focused entirely on the payment of compensation and not on maintaining a working relationship between the parties.xxi THE WAY OUT: MEDIATION? Following such problems with ISA, the need to explore and emphasize more consensual forms of alternative dispute resolution assumes a great significance. In this connection, other more consensual forms of ADR like conciliation and mediation xxii can provide effective answers to the ills inherent within the investor-state arbitral process. These other forms are primarily interests-based in contrast to the rights-based arbitral process. It focuses on facilitating the parties communication, negotiation and decision-making unlike arbitration which is focused on enabling the arbitrators decision-making. Through facilitated dialogue and negotiation, there is a greater chance of harmonious resolution of the given investor-state disputes. Further, these other forms being flexible, cheap, timely and less formal can potentially be more effective in addressing a wide array of investor-state disputes. Again, these can be used in substantial pre-arbitration work which can further ensure the quick establishment of communication between the disputants, which in turn can lead to substantial narrowing down of issues, thus helping the disputants in arriving at negotiated settlement of disputes. In any case, these other forms can provide an excellent platform for carving out creative and harmonious solutions, to the advantage of both, foreign investor and host state.
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Thus ISA mechanism needs comprehensive solutions for the problems which have typically characterised it in recent years. The set of solutions are set forth below: (i) Methods of alternative dispute resolution (ADR) that seek to resolve existing disputes through negotiation or amicable settlement such as international conciliation or mediation should be first explored and given much emphasis. (ii) Dispute prevention policies (DPPs)xxiii that attempt to prevent conflicts between investors and states from emerging and escalating into formal investment disputes, for example by establishing inter-institutional alert mechanisms within States or encouraging information sharing among government entities. The advantages of these alternative approaches are the flexibility offered by these approaches, including the possibility to find amicable grounds for settlement between investors and states, permitting the parties to continue a working relationship. The settlement process is also faster and less costly. ADR can be without prejudice to the right of the parties to resort to other forms of dispute resolution. (iii) Existing international rules on dispute resolution, most notably the conciliation rules of the International Centre for the Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL)xxiv and the International Chamber of Commerce (ICC)xxv, provide guidance on the use of ADR techniques. ICSID also maintains a set of fact-finding rules and the ICC published a set of rules detailing the establishment and function of dispute boards. xxvi Other institutions beyond the aforementioned three also provide their own set of conciliation or mediation rules, and hence procedural guidance on the use of ADR techniques is available for the parties involved in investment disputes. Many of these dispute resolution institutions further offer necessary logistical and organizational support, for example by making a venue and facilities available to disputing parties for the purpose of undertaking the conciliation or mediation process. Despite this assistance, research today suggests that rules on ADR have been rarely used in investorstate
dispute resolution,xxvii and hence more specific encouragement in ISAs towards considering the use of these rules may be an important way forward. (iv) The sharing of information among government agencies on issues related to foreign investment in a well-structured and organized way can assure that the right government agencies are alerted at an early stage about possible problems faced by investors and allow for a timely response. Information sharing will generally increase awareness among government agencies and various levels of government (e.g. at the regional or municipal level) of relevant issues in international investment law. (v) Governments can target specific sensitive sectors where disputes could arise, and monitor foreign activities in this sector more closely, addressing possibly emerging problems at an early stage. (vi) States can provide the option of an administrative review of a measure deemed unsatisfactory by investors. The possibility of such a review can foster much needed confidence and trust in the host states institutions. (vii) The establishment of adequate inter-institutional arrangements among
government agencies can allow states to address emerging investment disputes more effectively. Such inter-institutional mechanisms may involve the
establishment of a lead agency responsible for dealing with investment disputes, with the right to obtain information from other government agencies and the authority to resolve a dispute through preferred means of settlement. (viii) Specific public officials can be empowered with the authority to engage with investors, embark on negotiations or pursue amicable settlement. (ix) Among government agencies, timely sharing of information and documents related to an investment dispute should be assured, even at a short notice. (x) An ombudsman or ombuds office can function as an institutional interlocutor within the host country which investors can approach to have their grievances heard and addressed. (xi) StateState cooperation on dispute prevention could be enhanced.
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(xii)
Attempts can be made to continue negotiating even while an arbitration procedure is already on-going.
Overall, ADR and DPPs can offer promising alternatives to the settlement of investment disputes through international arbitration, and hence states, investors, legal practitioners, arbitration institutions and international organizations should be encouraged to give these methods further consideration in the context of investment disputes emerging in the future. CONCLUDING REMARKS While resort to arbitration is the predominant approach in ISAs as the name itself suggests, alternative approaches have at times also need to be incorporated in them. But such incorporation of rules as a part and parcel of institutional mechanism of ISA is still conspicuous by its absence. As a positive side-effect of the criticism against investment arbitration, investors and states as well as some international organizations such as UNCTADxxviii, ICSIDxxix or IBAxxx , are advocating for the increased use of conciliation or mediation to supplement investor-State arbitration. This change is significant. However, only time will tell whether the push for alternative non-adversarial, interest-based modes of ADR is adequately done or not. Again, the current mechanism for addressing investor-state disputes need not be substituted with a whole new dispute resolution system. However, as this paper has strongly advocated, there is a widely felt need, among the various stakeholders, for the increased use of interest-based consensual forms of ADR, notably the increased use of mediation, within the overall mechanism of ISA which should be further combined with Dispute Prevention Policy (DPP) and other amicable institutional means. The Mantra must be to preserve the interests of both the investors and states, and in this regard, mediations potentials must be tapped to the fullest extent before resorting to purely rights-based arbitration. REFERENCES :
i
Countries concluding IIAs commit themselves to adhere to specific standards on the treatment of foreign investments within their territory. IIAs further define procedures for the resolution of disputes should these commitments not be met. The most common types of IIAs are Bilateral Investment Treaties (BITs) and Preferential Trade and Investment Agreements (PTIAs). International Taxation Agreements and Double
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Taxation Treaties (DTTs) are also considered as IIAs, as taxation commonly has an important impact on foreign investment. See generally, UNCTAD Series on Issues in International Investment Agreements, IIA Issues Paper Series, United Nations Publication Document (United Nations), October 2008 ii What is typically called exhaustion of local remedies rule, see generally, M. Sornarajah, The International Law on Foreign Investment, Cambridge University Press 2004, 253-262 iii Rudolf Dolzer, Christoph Schreuer, Principles of international investment law, Oxford University Press, 2008, 122. iv "Ratification", "acceptance", "approval" and "accession" mean in each case the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty, Article 2 of Vienna Convention on the Law of Treaties, 1969. v Delays in justice are rampant in almost all the countries of the world. This is considered, inter alia, the main rational behind the modern evolution of Alternative Dispute Resolution mechanisms like arbitration. See generally, Gary B Born, International Commercial Arbitration, Vol. 1, 2009, Kluwer Law International, 50-55. vi North American Free Trade Agreement vii The Energy Charter Treaty (ECT) is an international agreement which establishes a multilateral framework for cross-border co-operations in the energy industry. The treaty covers all aspects of commercial energy activities including trade, transit, investments and energy efficiency. The treaty is legally binding, including dispute resolution procedures. viii ICSID is an autonomous international institution established under the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States with over one hundred and forty member States. The ICSID is a member of the World Bank Group and is headquartered in Washington, D.C., United States. It was established in 1966 as a multilateral specialized dispute resolution institution to encourage international flow of investment and mitigate non-commercial risks. Although the ICSID is a member of the World Bank Group and receives its funding from the World Bank, it was established as an autonomous institution by a separate treaty drafted by the International Bank for Reconstruction and Development's. For in-depth understanding of the working and functions of ICSID visit https://icsid.worldbank.org/ICSID/FrontServlet (Last accessed Sept. 3, 2013); Also see, Christoph H. Schreuer, Loretta Malintoppi, August Reinisch and Anthony Sinclair, The ICSID Convention- A Commentary, 2nd Ed., Cambridge University Press, 2009
ix
See the Report containing the latest development in Investor-State Dispute Settlement available at the
website of UNCTAD http://unctad.org/en/PublicationsLibrary/webdiaeia2012d10_en.pdf (Last accessed Sept 4, 2013) x ICSID Case No. ARB/87/3, Award of June 27, 1990, available at https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC676_En &caseId=C140 (Last accessed Sept. 5, 2013) xi ICSID Case No. ARB/06/11, Award of October 5, 2012, available at https://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=showDoc&docId=DC810_En &caseId=C80 (Last accessed Sept. 5, 2013) xii For the latest details on ISA see Recent Developments in Investor-State Dispute Settlement (ISDS), UNCTAD No.1, May 2013, available at http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d3_en.pdf (Last accessed Sept. 5, 2013) xiii Supra n. 9 xiv See, Karl Heinz, Commercial and Investment Arbitration: How Different Are They Today? The Lalive Lecture 2012, Arbitration International, Vol. 28, Issue 4, (2012) 577-590 xv They can arise out of bilateral investment treaty (BIT), which is an agreement establishing the terms and conditions for private investment by nationals and companies of one state in another state. This type of investment is called foreign direct investment (FDI). BITs are established through trade pacts. See, Jarrod Wong, "Umbrella Clauses In Bilateral Investment Treaties: Of Breaches of Contract, Treaty Violations, and the Divide Between Developing and Developed Countries In Foreign Investment Disputes", 14 George Mason Law Review (2007) 135.
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xvi
Quantitative Data regarding existing investment treaties can be accessed at UNCTAD website, http://unctad.org/en/Pages/DIAE/International%20Investment%20Agreements%20%28IIA%29/Quantitativedata-on-bilateral-investment-treaties-and-double-taxation-treaties.aspx (Last accessed on Sept. 10, 2013). xvii Christopher Schreuer, The Future of Investment Arbitration, Available at http://www.univie.ac.at/intlaw/pdf/98_futureinvestmentarbitr.pdf (Last accessed Sept. 10, 2013) xviii Gabrielle Kaufmann-Kohler, In Search of Transparency and Consistency: ICSID Reform Proposal, I, Paper delivered at Investment Treaty Workshop held September 27, 2005 at IBA Annual Conference in Prague; published in 2 Transnational Dispute Management (November 2005) xix At least 39 arbitrations were brought against Argentina relating to its financial meltdown at the turn of the millennium. It remains to be seen how many new claims may arise out of the current economic meltdown or presently out of the Eurozone crisis, which has forced many governments to intervene in matters of investment. xx Investor-to-State arbitrations offer examples of Parallel Proceedings in which the responsibility of the State may be at stake with regard to the same facts, including the same state measures. The proliferation of bilateral investment treaties has increased the complexity of the different methods of dispute resolution in the international arena, including the number of forums in which individuals and private corporations may claim the responsibility of host States. xxi Emphasis just on compensation to the aggrieved party or to the party whose rights have been vindicated by the arbitral award- does not guarantee re-start of the same level of trustworthy relationship. This scenario is more or less akin to the adjudicatory process which establishes right and wrong. In the arbitration of investorstate disputes, thus there is every likelihood of continued lack of harmony post arbitral award. xxii For the sake of this paper, the subtle difference between conciliation and mediation is ignored. In any case both are interest-based dispute resolution mechanisms.
xxiii
Roberto Echandi, Towards a New Approach to Address Investor-State Conflict: Developing a Conceptual Framework for Dispute Prevention, NCCR Working Paper No 2011/46, August 2011, Swiss National Centre for Competence in Research, also available at http://www.wti.org/fileadmin/user_upload/nccrtrade.ch/wp2/publications/wp%202011%2046_Echandi.pdf (Last accessed Sept. 15, 2013) xxiv Adopted by UNCITRAL on 23 July 1980, the UNCITRAL Conciliation Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of conciliation proceedings arising out of their commercial relationship. The Rules cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings whilst the conciliation is in progress. See generally, Issak I Dore, Arbitration and Conciliation under the UNCITRAL Rules: A Textual Analysis, Martinus Nijhoff Publishers, 1986. xxv ICC based in Paris offers a range of dispute resolution services to help solve difficulties in international business. xxvi A dispute board or dispute review board (DRB) or dispute adjudication board (DAB) is a 'job-site' dispute adjudication process, typically comprising three independent and impartial persons selected by the contracting parties. The significant difference between Dispute Review Boards and most other Alternate Dispute Review techniques (and possibly the reason why or Dispute Review Boards have had such success in recent years) is that the Dispute Review Board is appointed at the commencement of a project before any disputes arise and, by undertaking regular visits to the site, is actively involved throughout the project (and possibly any agreed period thereafter). See generally, Cyril Chern, Chern on Dispute Boards, 2nd Ed., Wiley Blackwell, 2011 xxvii Supra n. 19 xxviii Supra n. 10 xxix Supra n. 9 xxx The most recent development came in October 2012 when the International Bar Association (IBA) adopted new Rules for Investor State Mediation (the Rules). The Rules have been drafted by the IBA Subcommittee on
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State Mediation. The rules were prepared against the background of a significant increase in investor-state disputes arising from international investment agreements. See the IBA Rules for Investor-State Mediation, available at http://www.ibanet.org/LPD/Dispute_Resolution_Section/Mediation/State_Mediation/Default.aspx (Last accessed Sept.19, 2013)
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CASE C OMMENT
SITUATION IN THE DEMOCRATIC REPUBLIC OF THE CONGO IN THE CASE OF THE PROSECUTOR V .THOMAS LUBANGA DYILO
BENARJI C HAKKA INTRODUCTION On 1st July 2012, the International Criminal Court (ICC) i celebrated its 10th anniversary, meanwhile it had even concluded its first ever review meeting of its statute stock taking, which took place in Kampala, Uganda during 31st May to 11th June 2010.ii If we look into the work of the ICC during these 10 long years it has delivered only a single judgement with much fanfare on the situation relating to the Democratic Republic of the Congo in the case of the Prosecutor v .Thomas Lubanga Dyilo. Nonetheless, one cannot really pass a
judgement about an institution whether it is a success or a failure by looking at its decade long history. However, it is a long time for the victims of international crimes, who suffered and continued to suffer to get the justice and reparation from an international institution, which supposed to render justice to the victims and put an end to the culture of impunity of international crimes in international law. After six prolonged years of arguments and delays in the trail process of the present case in discussion, the Trial Chamber of the ICC delivered its judgement on 12 th March 2012. The international community has been arguing that this judgement contributes to the development and improvement of the normative practice of international criminal law. They further argued that this judgement may offer invaluable insights on the role of international criminal justice system. However, the present notes may not be intended to provide a comprehensive analysis of the entire case at hand, but it is an attempt to focus on two major issues which are very pertinent to the development of international criminal law
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and international humanitarian law. These two pertinent issues include first, the classification of armed conflict in DRC by the ICC and second the narrow indictment of charges of rape and sexual violence, where in the country the sexual abuses are amongst the highest in the world. T HE CASE FACTS AND ANALYSIS It is important to look into the chronology of the events which took place in this much celebrated case to understand why the Court suffered inordinate delay to deliver its first judgement. However, some other may comment that the ICC has rendered its first judgement in a very swift manner. Nevertheless, the Court had issued an arrest warrant on 10th February 2006, against the former president and founder of the Union des patriots
congolais (UPC) and the commander-in-chief of its military wing, the Forces patriotiques pour la liberation du Congo (FPLC), charging him with the offence of war crimes for
conscripting the enlisting children under the age of fifteen years and for using them to further the armed conflict in the Ituri region of the Democratic Republic of Congo (DRC). Subsequently, on 29th January 2007, the Pre-Trial Chamber rendered its decision on the confirmation of charges. It confirmed that the Court has sufficient evidence to establish substantial grounds to believe that Thomas Lubanga Dyilo is responsible as a co-perpetrator, for the charges of conscripting and enlisting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Articles 8 (2) (b) (xxvi)iii and 25 (iii) (a) of the Rome Statue from early September 2002 to 2 nd June 2003. iv Further the Courts Pre-Trial Chamber confirmed that there was sufficient evidence to establish substantial grounds to believe that the accused is responsible, as a co-perpetrator, for the charges of enlisting and conscripting children under the age of fifteen years into the FPLC and using them to participate actively in hostilities within the meaning of Article 8 (2) (e) (vii) v of the Rome Statue of ICC. vi Mr. Lubanga was further found to have made an
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essential contribution to implementing the common plan and to have done so with the requisite mens rea.vii ISSUES RELATING TO THE C LASSIFICATION OF ARMED C ONFLICTS By focusing on the charges of the Court and its judgement, here I would like to deal with the issue of classification of the armed conflict and the way in which the Trial Chamber had dealt with this issue. The Court has charged the accused according to Article 8 (2) (b) (xxvi) and (e) (vii). These provisions of the Rome Statue of the ICC are identical and prohibit conscripting or enlisting children under the age of fifteen years into the national forces or armed forces or groups or for using them to participate actively in hostilities. However, clause (b) (xxvi) of Article 8 is applicable only to the situation concerning to international armed conflicts and clause (e) (vii) of Article 8 is applicable only to situation concerning to armed conflict of a non-international in character. These two provisions are specifically applicable to two different types of armed conflicts, but when charges were framed by the Pre-Trail Chamber it has re-characterised the facts assumed that it had power under Article 67 (7) (c) (ii) and decided that most part of the conflicts in Ituri was of an international armed conflicts. On the contrary, the Prosecutor had only charged the accused under Article 8 (e) (vii), that is, armed conflict of non-international in character. It is very difficult to comprehend and assess on what basis the Pre-Trail Chamber has arrived to the conclusion that the incidents which had occurred between July 2002 and 2nd June 2003 fall under the categories of armed conflict of international in character. In fact, it is clear that the incidents which occurred during the period between July 2002 and 2nd June 2003 fall under the categories of armed conflict of non-international in character based on the ground situation i.e. UPC involved in fighting with the other ethnic groups in Ituri. The normative practice of international humanitarian law and its treaty regime clearly distinguishes between the types of armed conflict in international law. According to the common Article 2(1) of the four Geneva Conventions of 1949, international armed conflict means all cases of declared war or of any other armed conflict which may arise between two or more high contracting parties, even if the state of war is not recognised by one of
them.
viii
Further, Article 3 common to the four Geneva Conventions of 1949 and its
protocol II additional to them clearly provides the definition of armed conflicts not of international in character. Based on the definitions rendered by the IHL treaty mechanisms, the conflict in Ituri was undoubtedly armed conflict of non-international in character. However, the question was whether Ugandas occupation of the Ituri region in the DRC was relevant to the classification of the conflicts involving Lubangs militia. This militia was found not to be under the control of any of the states fighting in that area during the above mentioned period. In this context, the Trial Chamber took different approach while the Pre-Trail Chamber had taken the view that the occupation by foreign power in this case, the Ugandan army as an occupying power in some parts of ituri constitutes conflict as an international armed conflict. Here, the IHL scholars raises pertinent question by asking that, where one state is in occupation of the territory of another state, should that fact mean that an armed conflict that takes place in the occupied territory is classified as an international armed conflict, even if that conflict relates to hostilities against or between non-state groups?ix However, for the purpose of determining the applicable law to the situation, the Trail Chamber took the opinion of the International Criminal Tribunal for Former Yugoslavias (ICTY) judgement in the Tadic Casex into consideration and stated that Depending on the particular actors involved, conflicts taking place on a single territory at the same time may be of a different nature. The Chamber endorses this view and accepts that international and non-international conflicts may coexist.xi It appears that the Trail Chamber had come to the above conclusion that though the conflict may appear to be international armed conflict in nature due to the fact that the Ugandan armys occupation in Ituri region in DRC but it turned out to be a non international armed conflict thereafter. The Trail Chamber further changed the classification of the conflict and decided that the conflict was not international in character
in the entire period but during the period between July 2002 and 2nd June 2003 the UPC militia engaged in fighting with the other militias, since then the nature of the armed conflict had changed. The court further held that in its judgement: Similarly, although there is evidence of direct intervention on the part of Uganda, this intervention would only have internationalised the conflict between the two states concerned (viz. the DRC and Uganda). Since the conflict to which the UPC/FPLC [Lubanga's militia] was a party was not a difference arising between two states but rather protracted violence carried out by multiple non-state armed groups, it remained a non-international conflict notwithstanding any concurrent international armed conflict between Uganda and the DRC.xii As discussed above, there is evidence that during the relevant timeframe the UPDF [Ugandan armed forces] occupied certain areas of Bunia, such as the airport. However, it is unnecessary to analyse whether the territory came under the authority of the Ugandan forces, thereby amounting to a military occupation, because the relevant conflict or conflicts concern the UPC and other armed groupsxiii
Focussing solely on the parties and the conflict relevant to the charges in this case, the Ugandan military occupation of Bunia airport does not change the legal nature of the conflict between the UPC/FPLC, RCD-ML/APC and FRPI rebel groups since this conflict, as analysed above, did not result in two states opposing each other, whether directly or indirectly, during the time period relevant to the charges. In any event, the existence of a possible conflict that was international in character between the DRC and Uganda does not affect the legal characterisation of the UPC/FPLCs concurrent non-international armed conflict with the APC and FRPI militias, which formed part of the internal armed conflict between the rebel groups.xiv
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To draw the above conclusion the Trail Chamber had relied on the approach of overall control test which was decided in the Tadi Casexv by the ICTY Appeal Chambers rather than the effective control test adopted by the International Court of Justice (ICJ) in the
Nicaragua Case.xvi In the Nicaragua Case the ICJ had established that the Nicaragua would
have had to demonstrate that the US directed or enforced the perpetration of the acts which are committed by the contras against the Nicaraguas government to describe the nature of conflict. This test was considered as one of the effective means of establishing the presence and involvement of foreign forces in the affairs of the other country. Subsequently, in 2007 the ICJ had reiterated the effective control test in its judgement in
Genocide Casexvii by rejecting the Tadic approach of overall control test which was loosely
adopted by the ICTY Appeal Chamber. However, the ICJ did not out rightly rejected the Tadic approach, instead it held that the overall control test may be applicable when it comes to the distinction between international and non-international armed conflict, but not for attributing the responsibility for internationally wrongful acts committed by non-governmental forces.xviii To conclude, by taking into consideration of the precedent rendered by ICJ and ICTY, the Trail Chamber of ICC could have considered at least the ICJs precedent before following the Tadic Precedent which is sound enough to give clarity on the issue in this case. It is also important to note that the Trail Chamber had rendered its decision by making clear that the conflict between non-state groups who are not controlled by or act on behalf of state is a non-international armed conflict, even if it takes place in an occupied territory. It further said that the conflict between Lubangas militia and other armed groups should be regarded as non-international armed conflict. Therefore, I agree with the findings of the Trail Chamber in this situation because of the reason that when a foreign occupier occupies a territory in certain parts of a territory and subsequently involved in fighting with rebels groups cannot constitute the conflict as international in character. Nevertheless, one cannot argue that the nature of conflict will change due to the fact that the foreign powers have control over the territory by discharging their powers as occupied forces in the territory
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where rebel groups are operating. Nevertheless, the occupied forces have duty to observe the law relating to international armed conflict where hostilities break out in occupied territory with non-state armed groups. ISSUES RELATING TO THE NARROW INDICTMENT OF C HARGES OF RAPE AND SEXUAL VIOLENCE In this case another important issue which required much attention is that the Trail Chambers findings on sexual violence, where Lubanga was tried for and convicted on limited charges and was not charged with gender based crimes. The facts relating to sexual violence were not considered by the Trail Chambers majority due to non inclusion of those sexual violence charges by the Pre-Trail Chamber during the time of confirming the charges which set the scope of the case.xix The Trail Chamber in its decision said that In accordance with the jurisprudence of Appeals Chamber, the Trail Chambers Article 74 Decision shall not exceed the facts and circumstances (i.e. the factual allegations) described in the charges and any amendments to them. The Trial Chamber has earlier pointed out that (F)actual allegations potentially supporting sexual slavery are simply not referred to at any stage in the Decision on the Confirmation of Charges. Regardless of whether sexual violence may properly be included within the scope of using (children under the age of 15) to participate actively in hostilities as a matter of law, because facts relating to sexual violence were not included in the Decision on the Confirmation of Charges, it would be impermissible for the Chamber to base its Decision pursuant to Article 74 (2) on the evidence introduced during the trial that is relevant to this issue.xx The Trail Chamber further addressed the Prosecutions arguments that sexual violence could be taken into account as an aggravating factor, without having brought charges for rape and sexual violence. The chamber noted that the Prosecutions failure to charge the accused with rape and sexual violence is not determinative of whether this activity is a relevant factor for sentencing. The Chamber also stressed that pursuant to Rule 145 (1) (c), it may consider sexual violence first, as part of the harm suffered by the victims;
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second, in regards to the nature of the unlawful behaviour; third, in relation to the circumstances in which the manner of crime was committed and, pursuant to Rule 145 (2) (b) (iv), to show the crime was committed with particular cruelty. Further, the Chamber emphasized that it may consider sexual violence in sentencing notwithstanding that it did not form part of the confirmation proceedings. The Chamber also mentioned that it remains necessary for the Chamber to be satisfied beyond reasonable doubt that child soldiers under fifteen years were subjected to sexual violence and this can be attributed to the accused in a manner that reflects his culpability. xxi Nevertheless, in her dissenting opinion Judge Odio Benito advocated to include sexual violence in the legal concept of use to participate actively in the hostilities as this is the critical aspect of the crime would otherwise remain invisible.xxii She further pointed out that the harm suffered may stem from within the same armed group and that sexual violence committed against children causes irreparable harm and is a direct consequence of their involvement with the armed group. Although the dissenting judge acknowledged with the fact that during the situation of conflict, a systematic and widespread sexual violence against girl children who were recruited as soldiers was sufficient to characterised as occurring in the ordinary course of the implementation of the common plan for which the accused is responsible, but the Court in majority failed to acknowledge to those facts. It clearly shows that the gender based crimes are still lacking sufficient attention by the Court. It is further important to note that the Prosecution decision not to bring charges of sexual violence in this case could also limit the provision for reparation for related harm suffered primarily by former girl child soldiers. Some of the Womens initiatives argued that harm resulting from rape and sexual violence should be addressed by a reparations order at lease, failing in which it clearly shows a discriminatory impact based on gender.xxiii
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C ONCLUSION The Lubangas judgement by the ICC is certainly a welcome step to put an end to the culture of impunity to international crimes by a Permanent International Criminal Tribunal unlike its sister ad-hoc tribunal such as ICTY and ICTR and Sierra Leon Hybrid Tribunals. This case undoubtedly made an important contribution towards the development of international criminal jurisprudence and for an effective implementation of international humanitarian law. However, the Court needs to be consistent with its decisions and rulings with regard to characterisation of armed conflicts and it deserves much attention from the Court. The second important observation, though the Court focused on some of the pertinent issues such as victims participation, and reparation in the process, but still it lacks attention on gender based crimes. As the entire world noticed and witnessed what had happened in DRC with regard to flagrant sexual abuses against girl child soldiers, the Court and the Prosecutor did not pay much attention to those widespread gender based sexual violations. Nevertheless, it is the beginning in the direction of addressing gross human rights and humanitarian law violations and to bring justice to the victims, but certainly there is long way to go. R EFERENCES:
Situation Concerning the Democratic Republic of the Congo, The Prosecutor v. Thomas Lubanga Dyilo, ICC01/04-01/06, 14 March 2012 the judgement pursuant to Article 74 of ICC Statute; see International Criminal Court website for details of the case available at http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf visited on 15 June 2013. i The Rome Statue of the International Criminal Court was adopted in 1998 which came into force in 2002, for details see the UN Treaty Collection available at http://treaties.un.org/Pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10&chapter=18&lang=en visited on 15th June 2013. ii See for details of the Review Conference of the Rome Statute at ICC available at http://www.icccpi.int/en_menus/ asp/reviewconference/pressreleaserc/Pages/press%20releases%202010.aspx visited on 15 June 2013. iii See the Article 8 (2) (b) (xxvi) of the Rome Statue of ICC UNDCPEICC adopted in 17 July 1998, available at http://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9-4757-ABE7-9CDC7CF02886/283503/ RomeStatutEng1.pdf visited on 16 July 2013.
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See the Judgment in the Case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 14 March 2012 at para 1, available at http://www.icc-cpi.int/iccdocs/doc/doc1379838.pdf visited on 16 June 2013 (hereinafter Judgement) v See the Article 8 (2) (e) (vii) of the Rome Statute of ICC, note.3. vi See the Judgement, note. 4. vii See Judgement para 1356-57, note.4. viii See Article 2 of the Geneva Convention of 1949, available at http://www.icrc.org /applic/ihl/ihl.nsf/ Article.xsp? action=openDocument&documentId=41229BA1D6F7E573C12563CD00519E4A, visited on 17 June 2013. ix Dap Akande , ICC Delivers its First Judgement: The Lubanga Case and Classification of Conflicts in Situation of Occupation, European Journal of International Law Talk, available at http://www.ejiltalk.org/iccdelivers-its-first-judgment-the-lubanga-case/ visited on 19 June 2013. x Prosecutor v. Tadic, ICTY, Case No. IT-94-1-A, 1999, Appeals Chamber, Appeals Judgement, 15 July 1999 (Tadi Appeal Judgment). xi See the Judgement , Para 540,l note. 4 xii Para 563 of the Judgement, note.4. xiii Para 564 of the Judgement, note.4. xiv Para 565 of the Judgement, note.4. xv Tadic Appeal Judgement, note 10. xvi Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, available at http://www.icj-cij.org/docket/index.php? sum=367& p1=3&p 2=3&case =70&p3=5 , visited on 19 June 2013 (hereinafter Nicaragua Judgement). xvii Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26 February 2007, available at http://www.icj-cij.org/docket/ files/91/ 13685.pdf visited on 19 June 2013 (hereinafter Genocide Case). xviii Ibid, para 404, and also see Thomas R. Lieflander, The Lubanga Judgement of the ICC: More than just the First Step?, Cambridge Journal of International and Comparative Law, Vo. 1, , 2012. xix Para 630 of the Judgement, note.4 xx Ibid. xxi See paras 67, 68,69, and75 and also see generally B Inder, First Sentencing Judgement by the ICC, The Prosecutor v. Thomas Lubanga Dyilo, in Womens Initiatives for Gender Justice, available at http://www.iccwomen.org/news/docs/WI-LegalEye6-12-FULL/LegalEye6-12.html visited on 20 June2013. xxii Dissenting opinion of Judge Odio Benito, at Trail Chamber in the Judgement in the Case of the Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06, 14 March 2012. xxiii The Womens Initiatives submitted their Observations in Reparations Proceedings in the Lubanga Case available at http://www.lubangatrial.org/2012/12/14/lubanga-judgment-the-womens-initiatives-submitsobservations-in-reparations-proceedings-in-the-lubanga-case/, visited on 20 June2013.
iv
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CASE C OMMENT
SAHARA INDIA REAL ESTATE CORPORATION LTD. AND OTHERS V. SECURITIES AND EXCHANGE BOARD OF INDIA AND ANOTHER, MANU/SC/0735/2012.
YASHOMATI GHOSH The Universal Declaration of Human Rights (1948) had recognized a set of rights as inalienable to mankind for the purpose of protecting human dignity and freedoms. Two of the most essential rights recognized by this Magna Carta of Human Rights are the right to freedom of speech and expression and the right to fair trial. These two rights are generally considered as integral and inalienable for protecting the essential elements of liberty and freedom in a democratic society governed by rule of law. In the era of telecommunications, media has assumed a position of great significance in both protecting and promoting free speech, access to information and protecting major socio-economic, civil, political and cultural rights of the people. Both traditional media like newspaper, television and radio, and new age media like internet and the social networking sites, twitter feeds, facebook updates, blogs, youtube videos etc are playing a significant role towards this effort. But many a times the various inalienable rights granted to the individuals comes in conflict with each other and a conscious effort needs to be made to bring a balance between the different concerns. A traditional area of tripartite conflict is between the media, citizens and the judiciary. It is an essential right of the media to freely promote access to information and free and fair speech; right of the individuals to protect their privacy and personal integrity relating to their jobs, family, business, religious beliefs etc.;, and right of the judiciary to render free and fair resolutions to disputes between the parties and promote proper administration of justice. The five judge bench decision in the case of Sahara India v.
SEBI (2012) is a renewed effort to resolve the traditional controversy by the highest court of
judicature in India.
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The fundamental rights chapter of the Constitution of India has conferred certain rights to the citizens as fundamental for the promotion of justice, equality and liberty. Article 19 of the Constitution has recognized fundamental rights like freedom of speech and expression, to assemble without peacefully and without arms, to form associations or unions, to move freely and reside in any part of India and to practice any profession or occupation, or conduct any business or trade. Other articles of the Constitution has granted additional rights and freedoms like right to life and liberty, religious and cultural freedom, freedom from human exploitation and atrocities, and right to equality. But none of these rights are absolute in nature and are always subjected to reasonable restrictions for the benefit and well being of the larger sections of the society. Article 19(2) of the Constitution recognizes certain important grounds of reasonable restrictions on the freedom of speech and expression like in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality or in relation
to contempt of court, defamation or incitement to an offence. (emphasis added)

The power of contempt is a power granted to the judiciary to protect the honour and dignity of the judicial system in the eyes of the common people. It was traditionally referred to as
scandalum justiciae curia meaning scandalising the judges. Under the common law it was a
power which was granted to the Court of Records which enjoyed the triple power of determining their jurisdiction, power to record their proceedings and the power to punish for contempt for itself. The power was granted so as to prevent insult to judges, attacks upon them, comment on pending proceedings with a tendency to prejudice fair trial, obstruction to officers of courts, witnesses or the parties, abusing the process of the court, breach of duty by officers connected with the court and scandalizing the judges of the courts. (E.M.Sankaran Namboodripad v. T.N.Nambiar AIT 1970 SC 2015) The Indian courts have traditionally enjoyed the power to punish for contempt of itself. After independence the Constitution of India granted the power to the Supreme Court and the High Court under Articles 129 and 215 respectively, and by virtue of the power granted to the Union Parliament under Entry 77 of List 1 the Contempt of Court Act 1971 was enacted for the purpose of granting all the other courts the power to punish for contempt of itself. Section 2
of the Act empowers the judiciary to take legal actions against civil contempt as well as criminal contempt. The law relating to civil contempt enables the court to prevent willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court whereas the criminal contempt empowers the court take penal actions against the publication of any matter or doing of anything which scandalizes or lowers the authority of any court, prejudices or interferes with the due course of any judicial proceeding, or interferes or obstructs the administration of justice. Any act which has the tendency to do or have any of such consequences is also subjected to penal actions. The criminal contempt is essential to protect the majesty of the entire judicial system and ensure the proper functioning of the administration of justice. The statute recognizing the constitutional obligation to balance the right of the people to enjoy freedom of speech and expression with the proper functioning of the legal system has provided for certain exceptions to the general rule of contempt. Section 4 of the Act provides that any fair and accurate reporting of a judicial proceeding or any stage thereof will not amount to contempt. In the present case the respondents the Security Exchange Board of India (SEBI) had passed an order against the appellants Sahara India (Sahara) on 18.10.2011 directing them to refund certain amounts which were invested with them under certain Optionally Fully Convertible Bonds (OFCD). An appeal before the Supreme Court was filed challenging the SEBI order. During the pendency of the appeal the Supreme Court passed an order directing Sahara to submit in detail the manner in which they intended to secure their liability to the OFCD holders to SEBI. In pursuant to the court orders negotiations took place between Sahara and SEBI to determine the sufficiency of the security to be provided for the purpose of meeting the liability. On 7.02.2012 the counsel for Sahara sent a personal letter to the counsel of SEBI stating the details of the security which would ensure proper repayment of the liabilities to OFCD investors and act as pre-condition for the stay of the SEBI orders during the pendency of the appeal before the Supreme Court. A Valuation Certificate detailing out the fair market value of the assets which are offered as security was also submitted with the letter. This information submitted by Sahara were subsequently flashed
by a television news channel on its news coverage a day prior to the date of hearing before the Supreme Court. On the date of hearing Shri Fali . S. Nariman, senior counsel for the Sahara expressed his anguish before the court for the breach of confidentiality by SEBI for disclosing the confidential business information to media personnel which were submitted by the company for the sole purpose of acting as a security for their financial liabilities, but SEBI had strongly denied that the alleged disclosure of information had taken place at their instance. However, the Supreme Court took note of the gravity of this incident and
requested both parties to make an application to the Court for the purpose of laying down important guidelines relating to Sections 2, 3 and 4 of the Contempt of Court Act 1971, that is, right of the press to make fair and accurate reporting of matters which were sub judice in nature but were matters of great public importance and concern, right of individuals to protect their privacy and restrain the publication of their personal and business communications by third parties, and the duty of the court to ensure proper administration of justice by preventing all interferences and obstructions. On the application of Sahara, which was supported by SEBI, guidelines were requested to be issued by the Court relating the legality of public disclosure of documents which were part of court proceedings and the manner and extent to which the print and electronic media could give publicity to such documents. The two primary rights on the basis of which the debate was structured was with reference to rights of the citizen to negotiate in confidence and her ability to defend herself fairly in a court of law and the right of the media to freely express ideas and information. Both these rights have their origin in common law and are presently considered as essential human rights, but in the recent years the tendency to commit trial by the media and their attempt to prejudge and condemn certain individuals and issues adversely affects the principles of rule of law in a country. While delivering the opinion Chief Justice Kapadia compared the law relating to free speech in some of the leading jurisdictions of the world. In the United States traditionally primacy has been granted to free speech and any attempt to restrain the scope of First Amendment is considered with great skepticism by the judiciary. The freedom of the press is generally considered as an absolute right and the freedom to access, report
and comment on sub-judice matters is deemed to be within the permissible scope. Any form of pre-publication censorship is considered as unlawful and no legal actions can be initiated against the media for pre-judging a pending matter. In case the action of the media had obstructed the fairness in a trial the judiciary devised innovative procedural measures like change of venue, ordering re-trial, reversal of conviction on appeal etc. which would neutralize the adverse effect of prejudicial publicity. Such neutralizing devices created by the US judiciary have traditionally balanced the rights of the private individuals, freedom of the media and the maintenance of judicial neutrality and independence. In comparison to the US, the English judiciary has conferred primacy to the proper and fair administration of justice over the right to free speech of the media. Fairness in trial and public confidence in the judicial system was deemed to be essentials in a rule of law determined society. But after the opinion of the European Court of Human Rights (ECHR) in the case of Sunday Times v.
United Kingdom (1979) 2EHRR 245 a balance is tried to be maintained between the rights
of the media and fair trial. The judiciary has recognized pre-publication censorship of a report for the purpose of preventing any prejudice or interference with the administration of justice and the same was recognized in Section 4(2) of the English Contempt of Courts Act 1981. The English courts have recognized contempt is an offence sui generis and have held that postponement orders can be passed to prevent risk of prejudice in trials. In the continental countries rights of private individuals like privacy, personal dignity a nd presumption of innocence have been conferred superior protection, hence the rights of the media is not only subject to the principles of fair trial but also with the rights of the private individuals. The ECHR has advocated the application of the doctrine of proportionality (as propounded by the Indian Supreme Court in the case of Chintaman Rao v. The State of
Madras (1950) SCR 759) as the basis for determining the balance between two competing
rights. The Canadian courts have adopted a combination of the necessity test and
proportionality test i.e. a publication ban should be ordered when such an order is necessary
to prevent a serious risk to the proper administration of justice when reasonably alternative measures like postponement of trial or change of venue will not prevent the risk; and that salutary effects of the publication bans outweigh the deleterious effects on the rights and
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interests of the parties and the public, including the effect on the right to free expression and the right of the accused to open trial. The Indian judiciary has traditionally recognized the importance of free speech as a facet of right to know and an essential element of democracy. But for the purpose of balancing the interests of competing parties the courts have traditionally granted legal recognition to precensorship or issued prior restraint orders in certain exceptional circumstances for a limited period of time. Such postponement orders could only be issued when all other alternative measures like postponement of trial or change of venue are not considered as feasible alternates by applying the dual test of necessity and proportionality. The party seeking such orders would be required to substantiate their arguments by highlighting the real and substantial risk of prejudice and overridingly displacing the important concerns of open justice principles by indicating that extent to which the publication will interfere with the administration of justice. The courts shall evaluate the prejudice suffered by each individual under the touchstone of Article 21 and after analyzing the necessity in each case will issue the postponement orders. It shall apply the test of societal interest justification as the basis for determining the scope and extent of the reasonable restriction under Article 19(2). The postponement orders are deemed to be neutralizing devices which will prevent possible contempt by the media and ensure fairness in trial. The judgment in the present case has assumed significance for multiplicity of reasons like re-visiting the entire jurisprudence of contempt law in India and comparing it with the legal positions in other countries, determining the scope of reasonable restrictions in the fundamental rights chapter in the Indian Constitution, clarifying the scope law making power of the Supreme Court under Article 141, highlighting the role of media in the context of right to know and conferring special protection to business related confidential information by upholding the right of individuals to negotiate and settle matters in confidence. The judgment can be appreciated for recognizing and upholding the important role of media in society but at the same time conferring due importance to the private rights of individuals and granting due protection to both rights under the touchstones of
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constitutional guarantee. This judgment has also been interpreted as introducing media censorship and preventing future trial by the media. The most important consequence of this judgment is the widening of the scope of contempt law. It has been traditionally determined that there is per so no lis applicable in a contempt proceedings because the apparent scope of the law is protecting the majesty of the court and ensuring proper functioning of the judicial processes, but in this case the power of contempt has been extended to act as a remedy in the hands of private individuals to seek remedy for protection of private and confidential matters from the purview of media glare. In the words of Supreme Court, the right to negotiate and settle in confidence is a right of a citizen and has been equated to a right of the accused to defend himself in a criminal trial. The decision is likely to assume greater significance in the future with the continuous spread of media and their interventions in all facets of our life. The judgment has provided a new tool on based the neutralizing device theory to restrain the peeping media but in light of the vagueness in the Supreme Court guidelines and case by case approach based on application of real and substantial risk test may cause additional overburdening of the judicial responsibility, add to the docket of pending cases and cause further delay in the decision making process. It is further essential for the Supreme Court to lay down certain criteria for determining the scope of application of the contempt power and for the purpose of interpreting societal interest like rights of the accused, trade secrets, business communications, privacy, witness protection etc for the benefit of lower courts, media and individuals for the purposes of clarity and certainty.
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INTRODUCTION TO CONTRIBUTORS
A. K. KOUL __ ________________________________________________________________________________ Former Vice Chancellor, National University of Study and Research in Law, Ranchi; Former Vice Chancellor, National Law University, Jodhpur; Former Dean, Faculty of Law, Former Head of Department, University of Delhi. AMAR PAL SINGH ____________________________________________________________________________ Prof. (Dr.) Amar Pal Singh has joined Dr. Ram Manohar Lohiya National Law University, Lucknow on 20th of November 2013. Dr. Singh has past experience of 15+ years of teaching at some of the prestigious law schools of the country. Dr. Singh has substantial academic work to his credit, having attended around 50 national and international conferences and having more than 30 research papers published in journals of national and international repute in India and abroad. He is a life member of Indian Law Institute, New Delhi, Indian Institute of Public Administration, New Delhi and an Associate member of Indian Society of International Law, New Delhi. ANEESH V. PILLAI____________________________________________________________________________ Aneesh V. Pillai, is a Faculty of Law in Hidayatullah National Law University, Raipur, Chhattisgarh. He has been awarded prestigious Prof. (Dr.) A T Marcose Memorial Gold Medal from Cochin University of Science and Technology (CUSAT) for securing First Rank in LLM. He is also the winner of K C Menon Memorial Gold Medal for the Best Student in LLM in the year 2008 from CUSAT, Kerala. He has been awarded Ph. D from CUSAT, Kerala. His area of interest is Public International Law, Competition Law, Law of Torts, Human Rights and Cyber Laws. ANU CHOUDHURY ___________________________________________________________________________ Ph.D candidate, Centre for the Study of Law and Governance, Jawaharlal Nehru University, New Delhi
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BENARJI C HAKKA____________________________________________________________________________ Associate Professor, National Law University and Judicial Academy, Assam. Prior to this position he was working as a Lecturer at School of Law, in National University of Ireland, Galway, Republic of Ireland and as a Legal Adviser at the International Committee of the Red Cross (ICRC), its Regional Delegation for South Asia in New Delhi DANIEL MATHEW____________________________________________________________________________ Assistant Professor of Law, West Bengal National University of Juridical Sciences, Kolkata, West Bengal DEBASIS PODDAR ___ _________________________________________________________________________ Assistant Professor, National University of Study and Research in Law, Ranchi; Former Lecturer, National Law University, Jodhpur. G. V. AJJAPPA ________________________________________________________________________________ Former U.G.C. Professor, National Law School of India University, Bangalore ; Former Dean, Faculty of Law ; Former Head, Department of Law, Karnataka University, Dharwar. MANOJ KUMAR PADHY ______________________________________________________________________ Associate Professor, Faculty of Law, Banaras Hindu University, Varanasi PRADIP KUMAR PARIDA______________________________________________________________________ Assistant Professor of Political Science, Indian Institute of Public Administration, New Delhi. RABINDRA KR. PATHAK______________________________________________________________________ Rabindra Kr. Pathak did his LL.M. from Indian Law Institute with a Gold Medal in Jurisprudence, after completing LL.B. from Campus Law Centre, Delhi University. He is currently pursuing his doctoral research on Constitutional Adjudication. He has published around twenty research papers, articles and book review in national
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and international journals and law reviews of repute. He is presently working on a book on Jurisprudence. SAURABH BINDAL____________________________________________________________________________ Saurabh Bindal is a graduate Engineer in Biotechnology (passed with honours) from Dr. B.R Ambedkar University, Agra. He graduated from the IIT Law School in 2012 and is now practicing law at the Delhi High Court. He has co-authored a book titled "Constitutionalizing Intellectual Property" and has numerous other publications to his name. SOPHY K.J ____________________________________________________________________________________ Dr. Sophy K.J. is currently working as Assistant Professor of Law at the National Law University Delhi. She has Graduation in English Literature other than LL.B. PostLL.B, she finished LL.M with specialisation in Intellectual Property Rights (IPR) from NALSAR, University of Law, Hyderabad. She has been awarded Ph.D. on the topic Customary Rights of the farmers during the era of Liberalisation from National Law University, Delhi in June, 2013. She has also presented academic papers in International and National Conferences on her areas of interest such as Intellectual Property Rights, Labour Law, Human Rights and Globalisation and Legal History. SUKANT VATS________________________________________________________________________________ Assistant Professor, Law Centre-I, Faculty of Law, University of Delhi. UDAY SHANKAR______________________________________________________________________________ Dr. Uday Shankar is Assistant Professor at Rajiv Gandhi School of Intellectual Property Law, Indian Institute of Technology Kharagpur. He has been awarded with a fellowship from prestigious Max-Planck Institute of Comparative Public Law and International Law, Heidelberg in the year 2008. He has participated in Law Teaching and Legal Research Programme at Cardiff University, UK. He led a delegation of students for educational summit to George Washington University Law School. He is member of The International Association of Constitutional Law, South Africa.
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YASHOMATI G HOSH__________________________________________________________________________ Yashomati Ghosh is an Assistant Professor at the National Law School of India University from 2006. She was awarded the Fulbright-Nehru Doctoral and Professional Research Fellowship for the year 2010-2011. She was also a fellow at the Berkman Center for Internet and Society, Harvard University, Boston. She has participated in a number of international and national conferences and seminars. Her areas of specialization are Administrative Law; Professional Ethics, Law, Poverty and Development, Consumer Protection Laws and Intellectual Property Rights Law. At present she is working on a book titled Professional Ethics and the Legal Professsion to be published by LexisNexis. Y OGESH PRATAP SINGH______________________________________________________________________ Yogesh Pratap Singh earned his LL.M. from National Law School of India University (NLSIU), Bangalore and MA in Ancient Indian History from the University of Allahabad. He has worked as a law trainee in the Supreme Court of India under the guidance of Hon'ble Justice S.B. Sinha, Senior Judge, Supreme Court of India. He has worked as a Legal Researcher in the Rural Litigation and Entitlement Kendra (RLEK), Dehra Dun. He participated in the 39th Annual Session on International Human Rights Law organized by International Institute of Human Rights, Strasbourg, France. Mr. Yogesh has also been a part of Ciedhu programme in France conducted for University Teachers.
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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 DOCTRINE OF COMMON EMPLOYMENT IN INDIA: A CRITICAL STUDY

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Priestly v. Fowler appears to precede to the principle of voluntary assumption of risk

York Newcastle and Berwick Railway Companyxiii wherein he said:

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THE ROLE OF LAW IN SOCIAL TRANSFORMATION

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Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

NIPTARA COURTS: CRITIQUE OF OFFICIAL

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrums Law Review ISSN: 2321 - 3787

Rostrum's Law Review, Volume I, Issue III

Rostrum's Law Review, Volume I, Issue III