ISSN: 2347-3525O:

Legal Desire Quarterly Journal

Vol-1, Issue 1 October 2013

Legal Desire Quarterly Legal Journal

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Email: info@legaldesire.com Visit us:www.legaldesire.com

Editorial Board
Editor-in-Chief: Adv. Ashok Chaitanya Executive Editors
Vibhor Aggarwal Ajit Singh Kalia Disha Sharma Adv. R S Bhardwaj

Student Editors
Sameeksha Chowla Tejaswini Ranjan Ashima Ohri Akshay Srivastava Rahul Sharma

Publishing Editor Anuj Kumar

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Finally Arrived.
It give us immense pleasure to come up with First Issue of Legal Desire Quarterly Journal. We have finally released our Journal after receiving overwhelming response to our Online Legal portal. In a few span of time, Legal desire created an identity among the Legal World with the massive support of Law Students and Professionals across India. We received a large number of articles submissions on our Portal so we realized the importance and need to start a Legal Journal to give wings to the authors interested to get their esteemed articles published in our Journal. The response we got from our Online Portal proves that hard work and determination towards work finally pays back. We hope you will love to read our first issue. We would like to hear from you about your views, suggestions and feedbacks for our journal so that we can improve and understand our readers mind. Please feel free to drop us email to info@legaldesire.com For Latest Legal News, Events, Judgment and Online Legal Services, visit our Online Portal www.legalportal.com

With Regards, Anuj Kumar Founder, Legal Desire

LEGAL DESIRE QUARTELY LEGAL JOURNAL VOL-1, ISSUE-1 ISSN NO: 2347-3525

Copyright 2013 Legal Desire. All Rights Reserved No part of this publication may be reproduced or transmitted in any form by means, electronic, mechanical, recording or otherwise, without prior permission from Legal Desire. The views and opinions expressed in the articles are those of author and do not necessarily reflect the opinion or stand of Legal Desire. While every precaution has been taken in the preparation of this journal, the publisher and authors assume no responsibility for errors or omissions, or for damages resulting from the use of the information contained herein.

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Editorial
A very warm welcome to the first issue of Legal Desire a quarterly journal. The Legal Desire while releasing its first issue, intends to create a journal about the law and the legal field, but with difference. It not only intends to cover events relating to the Indian Legal System, but is also committed to make an effort to ensure this journal liked and needed across the country. The Legal Desire is a mixed lawyer and student edited quarterly journal that publishes scholarly articles and commentaries on the law contributed by jurists, practitioners, law professors and the students. Participation in this journal provides students with the opportunity for concentrated study in specific areas of the law and enhances their skills in legal research writings and analysis. Each student whose articles have been published in this journal has demonstrated outstanding academic achievements and a solid foundation in the legal skills. What has impressed me most while perusing the manuscript handed over to me is the diligence and meticulous care with which each of the authors of their respective articles which includes law professor as well as law students, have approached the subject matter of their respective articles. Such a journal for the practitioners, law professors and law students are need of the hour. The law faculties and students from various universities, colleges and institutes submitted their articles for our considerations. Congratulations to the students and lecturers whose work was selected, they can be justifiably proud of having their work chosen for publication and we are happy to acknowledge their achievements. I wish to express my sincere thanks to all those who have extended their unflinching support for the launch of Legal Desire particularly Editorial Board and more specifically Founder & Publishing Editor of Legal Desire Sh. Anuj Kumar. I also wish to convey my sincere gratitude to the erudite personalities who have contributed invaluable articles for publication. I wish the journal all success. (Ashok Chaitanya) Advocate, Supreme Court of India

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Foreword
I was honored to be asked to write a foreword to Legal Desire Quarterly Journal (Vol. 1, Issue 1). I had been familiar with Anuj Kumar (Founder & Publishing Editor at 'Legal Desire Quarterly Journal') meticulously researched and beautifully written articles (50+), and Im extremely delighted to read and posses the first Issue of the Legal Desire Journal. A glance through the pages of this Journal will show that it is an unusual type of publication. It consists of words and complete analysis of the articles covered. This Legal Journal is a treasure for the law students and Professionals. This first issue of the Legal Desire Quarterly Journal touches upon a number of issues worthy of note in present scenario. With article topics ranging from the Ambedkars views on untouchability- along with contemporary examples of the evil, Secularism in the Indian Context, Shocking Reality of Juvenile Homes, Surrogacy: A Bane or Boon and many more. A highly evolved and complex justice system makes enormous demands of the people who work in it. Law Students and Professionals need up-to-date information as well as professional analysis on land mark judgments like Verdict in Times Now case in these constantly changing fields. Legal Desire Quarterly Journal delivers this vital information to them. Life is less about the destination and more about the opulent Journey. No journal will be the same as compared to other because the approach to contemplating and completing the entries will be as unique as the experiences of the writers. On behalf of all of the authors at Legal Desire Quarterly Journal, I hope you find this particular edition both enlightening and informative. Vibhor Agarwal Publisher / Executive Editor Pulse of Markets Newspaper (www.pulseofmarkets.com)

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Content
S. No. Content
1. Ambedkars views on untouchability- along with contemporary examples of the evil 2. Verdict in Times Now case: Need of the hour 3. Secularism in the Indian Context 4. Critical Appraisal of the Death Penalty 5. International Humanitarian Law: Its evolution, applicability and challenges of Contemporary Armed Conflict 6. Shocking Reality of Juvenile Homes 7. State Immunity: Its Origin, And Development Through Landmark Cases 8. Right to Healthy Environment: in the Era of Globalization 9. Surrogacy: A Bane or Boon

Pg. No.
6 15 25 34 38 54 58 71 80

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1. Ambedkars views on untouchability- along with contemporary examples of the evil

By- Kirtita Banerjee1

INTRODUCTION Untouchability has been a glaring problem of the Indian society since time immemorial. It was brought to an end in 1950 when our constitution came in to force which consisted of the Article 17 which clearly forbids and mentions that it will be punishable if in case it is practiced in any form. It was done with a view that this old practice and an evil should be brought to an end. But if the present day scenario is taken into consideration, one will not be hesitant to claim that no total success has been achieved till date. Its glaring existence is found in rural areas. Segregation in the form of restricting the dalits from having access to public roads , tanks, plots of land etc but the problem has reached its extremity in some places for example in Tamil Nadu at Uthapuram in Madurai district where they have built a 500 metres long high wall to have the dalits permanently separated from the Hindus, in eateries they are forced to sit on the floor, at some places the school teachers also create an environment of embarrassment for the dalit children when they are being called by their caste names in case they commit mischief and in serious cases if they are to be beaten as a punishment for their naughtiness, that is also not done by the teacher themselves; another dalit boy is asked to beat the mischievous boy by the teacher. These discriminations against the dalits are not only insulting but also violative of their human rights. In a study conducted by Action Aid over 565 villages in 11 states which are Punjab, Uttar Pradesh, Bihar, Madhya Pradesh, Rajasthan, Maharashtra, Orissa, Andhra Pradesh, Karnataka, Kerala, Tamil Nadu and Chhattisgarh, it was found out that in 2001-2002, 73%2 of the villages the rules which restricts dalits from entering non-dalit homes, again in 70%3 of the villages, dalits cannot eat with non dalits, 64%4 prohibits dalits from entering non dalit temples, 53% 5reports of cases where the dalit women suffer ill treatment at the hands of non-dalit women6. The findings of the study7 were analysed by a panel that included social activist Harsh Mander, who was with Action Aid when
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Kirtita Banerjee, 4th year Student of B.A. LL.B.(Hons.),Hidayatullah National Law University Raipur, Chattisgarh PACS, Untouchability Remains, accessed date-15/06/2013,< http://www.pacsindia.org/newsarticles/untouchability-rural-areas-report> 3 Ibid 4 ibid 5 Ibid 6 Nandnar Ravidas Chokhamela,The untouchables who were they and why they became untouchables, accessed date15/06/2013,<http://www.ambedkar.org/ambcd/39A.Untouchables%20who%20were%20they_why%20they%20beca me%20PART%20I.htm> 7 PACS, Untouchability Remains, accessed date-15/06/2013,< http://www.pacsindia.org/newsarticles/untouchability-rural-areas-report>

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the study was conducted, and Sukhadeo Thorat, University Grants Commission chairperson and PACS Programme National Advisory Board member. However with this picture of the present scenario, the discussion, in its next chapters, endeavours to explain the ideas, social hindrances and possible remedies that Ambedkar upheld in his writings on the problem of untouchability.

Ambedkar on the origin of untouchability

Being a sufferer of untouchability, Ambedkar has shown to the world the proper problems in the form of the hurdles created by the age old prejudices, burden of social pyramid etc that the untouchables face in their day to day lives. Now to talk about his account of the untouchables and untouchability as a whole, caste system should be taken into consideration as untouchability is something which is deeply rooted in our Hindu society for only this system.8 The Hindu society is divided into different varnas which is the caste system seen to be prevalent in Hindu society in this form and name. Caste is based on birth and Varna is based on three gunas viz satva, raja, tamas. This caste system is said to have been evolved from different body parts of Brahma the Brahmans came out of Brahmas head, the Kshastriyas from shoulders and hands, Vaishyas from the thigh and Shudras from the feet of Brahma.9 They together comprised of the Chaturvarnas but those who came after Shudras were the Antyajas or the untouchables. This caste system also had and also till date they have codes which could not be violated by the Hindus themselves and if they break the codes of caste it is considered to a clear violation of deeply rooted religious beliefs in the society. Here he brought forth the idea of pollution as pointed out by one of the researchers on caste system, Mr. senart whose work he had read earlier. This idea prevailed only because of the common prevalence that those who enjoy the highest rank in the society are the priests and priests and purity are being associated inseparably with each other. Caste limits social intercourse, intermarriage thereby limits the membership to those only born in that caste. It is artificially dividing the population into distinct groups leading to differences amongst the individuals. The caste system also is strict in terms of not showing mercy to the sinner if anyone dares to violate its code. This would ensure that people out of any reason do not violate the codes of the religion and the religion remains successful in retaining its so called purity. Much of the contribution for these types of codes goes to Manu the law giver of the Hindus.10 Generally a lawgiver shows the right path for
Sunil Xess, Ambedkars Views on Untouchability , accessed date -14/06/2013,< http://snphilosophers2005.tripod.com/sunil.pdf> 9 Ibid 10 Harish Trivedi, The New Untouchability,<http://articles.timesofindia.indiatimes.com/2012-05-26/editpage/31863698_1_draft-constitution-cartoon-b-r-ambedkar>; Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi.
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the society to remain unified and strong but Manu, by uplifting the caste system he brought forth into force this caste system as we have it now and he degraded the lower castes like anything. However, Ambedkar was hopeful, at one point of time, that inter caste marriages and social intercourse will lead to the abolition of this menace from the society. He also tried to find out the reason of origin of this concept of untouchability. At first, He took the help of census reports of 1910, 1911, 1931 to show that the untouchables considered themselves to be inferior to the touchable and they also had to conform to the reason behind it that the untouchables are basically impure while the other Hindus are considered to be pure. But it has to be pointed out that many writers, who have observed the social customs of the untouchables, are of the view that the untouchables looked upon the Brahmins as impure. This antipathy can be explained on one hypothesis. It is that the broken men were Buddhists. As such they did not revere the Brahmins, did not employ them as their priests and regarded them as impure. The Brahmin on the other hand, disliked the broken men because they were Buddhists and preached against them with contempt and hatred with the result that the broken men came to be regarded as the untouchables. It is also said that the hatred and abhorrence against the Buddhists in the mind of the Hindus was created by the Brahmins not without support. Nilkant in his Prayaschit Mayukha11 quotes a verse from Manu which says that if a person touches a Buddhist or a flower of Pachupat , Lokayata , Nastika and Mahapataki, he shall punish himself by a bath.12 It was revealed in the Census reports that it is well known that a Hindu community however low it is will not touch cows flesh and on the other hand, there is no untouchable community which has not something to do with the dead cow. Thus it may be concluded from the fact that the communities whose members eat cows flesh are tainted with untouchability and no others, and this beef eating was considered to be the only reason that differentiated an untouchable from a touchable.13 The untouchables not only ate them but also used to remove its skin and to make articles from skin and bones. This beef eating was supposed to be a many reason for segregation of the Hindus and the untouchables.14 This theory receives support from the Hindu Shastras.15 The Veda vyas does explain the cause of untouchability. The

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Edited by Gharpure,p 95 The same doctrine is preached by Apararka in his Smriti Sammuchaya. 13 Chrishtophe Jaffrelot, Dr. Ambedkars Strategies Against Unotuchability And Caste System, Accessed date15/06/2013, < http://www.dalitstudies.org.in/wp/0904.pdf> 14 Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi. 15 The Veda vyas Smriti contains the following verse which specifies the communities which are included in the category of Antyajas and the reasons why they were so included L 12-13 the Charmakars, Bhatta, the Bhilla, the Rajaka, the Puskara, the Nata, the Vrata, the Meda , the Chandala , the Dasa, the svapaka, the kolija- these are known as Antyajas as well as others who eat cows flesh.

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clause as well as others who eat cows flesh is very important.16 Thus it can also be said that the valid reason for the origin of untouchability is beef eating, which led to the discrimination that we find even today. Problems of the untouchables and Ambedkars suggestions to ameliorate the social condition He at first showed that the society was divided into two 1.touchables and 2. Untouchables. The touchables form the major community, they live inside the village, they are strong, powerful, on the other hand, the untouchables form a minor community, they are poor and live outside the village community. The untouchables are required to follow the codes of the touchables some of these are that they have to live outside the villages and that too in the southern direction 17 as it is inauspicious of all the directions and will be punished if this segregation is broken. It were offences for an untouchable to acquire wealth such as land and cattle, to build a house with a tiled roof, to put on clean clothes, wear shoes, put on a watch or gold or silver ornaments, to give high sounding names to their children, to sit on a chair in presence of a Hindu, to speak a cultured language, to ride a horse or a palanquin through the village, to enter the village on a sacred day and to go about speaking on the ground that they were supposed to contaminate the air and the food of the Hindus. The duties which were required by the untouchables to discharge for the touchables are as follows.18 Firstly, a member of the untouchable community must carry a message of any event in the house of a Hindu such as death or marriage to his relatives in other villages no matter how distant the village may be. An untouchable must work when a marriage is taking place at a house, and must accompany a Hindu girl when she is travelling from her parents house to her husbands house and they must submit their women to the village community to make them subject of indecent fun.19 The punishments for all these offences were collective that is the whole community will be liable for punishment though the offence may have been committed by an individual. These duties were prescribed on the basis of the belief that members of higher castes are superior and they are to serve them being their most important duty.20 They could not buy law as it was either

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Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi Nandnar Ravidas Chokhamela,The untouchables who were they and why they became untouchables, accessed date-15/06/2013,< http://www.ambedkar.org/ambcd/39A.Untouchables%20who%20were%20they_why%20they%20became%20PAR T%20I.htm> 18 Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi 19 Pullaguras, Professional Work and Battle Against Untouchability, accessed date-13/06/2013, < http://fightagainstuntouchability.wordpress.com/> 20 Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi.

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it was outside their means or he has no opportunity to do it so now they were forced to be landless labourers which also closed the door to ask for reasonable wages. The wages were in cash or in kind. In U.P the corn given to them was Gobaraha also known as privy corn or those contained in the dung of the animal. In the month of march / April when the corn was fully grown, reaped and dried, it is spread on the threshing floor and bullocks were made to tread over the corn in order to take it out of the husk by the pressure of the hooves while doing this the bullocks used to swallow it in an excessive amount which they digest and came out along with the dung.21 These corns were then separated and then given to them as their wages which they converted to flour and bread for their food 22 . In non-agricultural season , they used engage themselves in the job of cutting firewood and grass and when they went to the market the buyers used to conspire among themselves to beat down the prices usually given for those materials to a non-Hindu. however, they had one permanent source of earning, that is of begging food from the touchable which used to be taken into account by the government itself while to fix their wages and it was an unwritten rule that an untouchable no matter how efficient or educated he/she was, always will have to serve and remain below the touchable even if the touchable was an illiterate person. While he was in the central board of the Harijan Sevak Sangh, he gave many suggestions for the removal of untouchability. First was to secure the civil rights of these people as in cases of caste based violences, if a person got injured it was found that only the police and the magistracy were against the depressed classes, they did not come to rescue them even if justice was on their side.23 Secondly equality of opportunity must be given for eradicating their poverty and their misery. They should be allowed to sell vegetables, butter and have other ways to earn which is open to all. Even in jobs, the position of the boss should not remain confined for the touchables alone. The people of this class are expected to remain under the Hindu bosses no matter how efficient he is.24 Another way to wipe this menace out of the society is to establish a close contact between the two. This may be done if persons of depressed classes are invited as guests or servants and this will unite them. He also asked for a special agency working for the depressed classes. He was of the opinion that the two groups cannot be held together by law, only love can do that and outside the family only justice will secure these people. So if a touchable does what he should not do to the untouchables then

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Ibid Ibid 23 Tofan Bemal; Dr. B.R. Ambedkar, Crusader Against Caste and Untouchability of Hindu Social Order; (January, 2008); Orissa Review; pp: 20-25., Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi 24 Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi

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justice must be provided to the untouchables. However, later on when the agency made constructive work like uplifting the untouchables educationally, economically, socially, and kept the objective of removal of untouchability at a nominal place offended Ambedkar very much. He believed that the change was due to Mr. Gandhi, as Mr. Gandhi, according to him was not ready to become unpopular with the Hindus which the removal scheme could have done so, he shifted to this strategy where he reaped all advantages and there was no disadvantage at all. 25 Remedies to the problem of untouchability The problems that untouchables face are created by Hindu religion itself and are justified in the name of Hinduism, so the Hindus cannot ask the untouchables to remain in Hinduism, as there is utterly no hope for the untouchables. Another reason is that Hinduism does not care about the self-respect and honour of the untouchables. Ambedkar in his writings mentioned that a large number of untouchables who have reached the capacity to think out their problem believe that one way to solve the problem of the untouchables is to abandon Hinduism and to be converted to some other religion. At a conference of the Mahars held in Bombay on 31st may 1936 a resolution to this effect was unanimously passed which had the support of a very large body of the untouchables. However, this shook the Hindu community very much and needless to say that they were against this from the very beginning. The objections were raised on the ground that there will be no gain by converting to another religion, all religions are true and conversion is thus futility and conversion is not genuine as it is not based on faith.26 Ambedkar was of the opinion that the Hindus are more trying to avoid an examination of their own religion by basing their arguments on the science of comparative religion which has broken down the arrogant and obstinate claims of all the religion that they are alone true and all other are false and it also seemed extraordinary to him that no Hindu during his time challenged the untouchables to show what is wrong with Hinduism.27 He mentioned that the conversion is no doubt genuine as it is based on the virtues of the religion. And coming to the question of gains, Ambedkar remarked that the untouchables do not intend to convert for having an economic gain and it is true that they will any wealth on conversion, again to think politically, they will lose their political rights for the untouchables but on the other hand they will gain those political rights of that religion which they will join in this case there is neither

Sunil Xess, Ambedkars Views on Untouchability , accessed date -14/06/2013,< http://snphilosophers2005.tripod.com/sunil.pdf 26 Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi. 27 Ibid
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profit nor loss for them. To consider the social aspect of this question, the gain in that case will be immense and absolute as they will be a member of a community whose religion has universalised and equalised all values of life. 28 In this context, later on, he published a series of books and articles arguing that conversion to Buddhism was the only way for the Untouchables to gain equality and not only that, he himself converted publicly to Buddhism on 14 October 1956, at Deekshabhoomi, Nagpur. Dr. Ambedkar also brought forth different political safeguards to protect the rights of the untouchables. First of all, he advocated for equal citizenship, entitling them to enjoy all rights in common with other citizens of the state. By this the untouchables will never be discriminated while using public streets, tanks, wells, public conveyances on land, air, water etc. He also advocated for the untouchable community to get adequate representation in the legislature. In this context the 73rd and the 74th amendment may be taken into consideration , as it also prescribed a reservation of one-third seat for the SCs and STs and also one-third for SC and ST women within the representations reserved for women and that of the SCs and STs. The Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989, is also enacted by the parliament to ensure their fundamental and socio-economic, political, and cultural rights. He also advocated for reservation for the untouchables in the cabinet and in services which is also seen in present political system. Thus, positive (preferential) treatment in allotment of jobs and access to higher education as a means to accelerate the integration of the SCs and STs with mainstream society is provided to them. 29 Untouchability In The Present Era Untouchability is still persisting in the rural areas of some states of India and is yet to be wiped out of the society. Some of its examples have been dealt here. In the book untouchability in rural India which is totally based on the a recent study on untouchability across rural India, conducted by Action Aid in 2001-2002, in 565 villages in 11 states of our country which has already been mentioned earlier in the project, investigators were provided a list of observation sites such as the village teashop, the bus stop, temples and shops. They were also given a list of specific forms of untouchability which were to be observed. The types of untouchability observed were the physical

Sunil Xess, Ambedkars Views on Untouchability , accessed date -14/06/2013,< http://snphilosophers2005.tripod.com/sunil.pdf; Valerian Rodrigues,( 2002), The Essential Writings Of Ambedkar, Oxford University Press, New Delhi. 29 Pullaguras, Professional Work and Battle Against Untouchability, accessed date-13/06/2013, < http://fightagainstuntouchability.wordpress.com/
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contacts while giving money in shops and receiving wages, to wear clean clothes, using the water facility at schools, visiting doctors etc.30 These form the broad areas in which untouchability is faced by the people and under them there are special rules that are to be followed like for example, in case of having common water sources, Dalits and non-dalits do not stand in the same line to fill water, Dalits and non-dalits use separate pulleys to draw water from a well; and in cases where there are separate water sources for dalits and non-dalits and neither group can use the others water source even in an emergency. Talking about the entry of dalits in numerous temples, numerous examples of such cases can be easily put forward for the same. Denial of entry into a temple continues to be the most widely prevalent form of public untouchability. The action aid found that in Karnataka, denial of temple entry was seen in 94% of the villages. Some other discrimination as found out by the action aid campaign which are still faced by the dalits have already been mentioned in the introduction of the project. On June 2011, the national commission for scheduled caste had to put pressure on the odisha government on the ground that untouchability is still practiced in Ranapada village near the chilka lake31. There are even circumstances where 700 people have been arrested who had tried to enter a temple in Athapuram village of Tamil Nadus Madurai district32. Jagannath, lingaraj, Tirupati are important examples of places where untouchability is still seen to be prevalent33. Temple entry is still prohibited for Dalits in rural Rajasthan. For instance, Ghasi Raiger, a Dalit, lost his life while he dared to enter a temple in the Madkiya village of Kotdi tehsil in Bhilwara district in Rajasthan. 34 A Dalit employee, Kedar Ram .Senior Basic School, Ghazipur, Uttar Pradesh has been underpaid since he was hired in 1974. Kedar Ram .Senior Basic School ,Ghazipur ,Uttar Pradesh. Another case happened in Sundarmmal, Muthunagar village, Coimbatore district, Tamilnadu; the untouchables here are made to work for long hours on poor wages. Sundarammal and her husband thus became bonded labourers in the godown owned by upper caste Varada Raj. But Varada raj along with his

30

Nandnar Ravidas Chokhamela,The untouchables who were they and why they became untouchables, accessed date-15/06/2013, <http://www.ambedkar.org/ambcd/39A.Untouchables%20who%20were%20they_why%20they%20became%20PA RT%20I.htm> 31 <www.rediff.com News; 32 The Mili Gazette, Dalits bid to enter temple 700 arrested, accessed date15/06/2013.<www.milligazette.com/.../807-dalits-bid-to-enter-temple-700-arrested.> 33 VB Rawat,Temples Of Discrimination,accessed date-15/06/2013,< www.halabol.com/2012/07/17/templesdiscrimination> 34 Mukundan CM, Dalit Killed For Entering Temple, accessed date-13/06/2013< http://www.dailypioneer.com/secon3.asp?cat=\state1&d=STATES>

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community people attacked the couple and tried to rape her on January 27,2007. When she filed complaint she was again tortured to with draw the case.35

Conclusion
Thus this project brings the definition of untouchability their origin and their deep connection with those orthodox beliefs of Hindu Religion which are still causing a lot of pain in the lives of the people of the depressed class. Nowadays though people in the urban areas do not suffer much from the problem of untouchability but its evil shadow is yet to be removed from the rural areas where the untouchables are given inhuman treatment that too out of no reason. This project tells about Dr. Ambedkars basic ideas about untouchability and how the caste system present in our Hindu society is responsible for the miseries that these untouchables face throughout their lives. Here in this context Dr. Ambedkars views on caste, annihilation of caste and his explanation for the origin and the constraints put on these people are dealt here in detail. He also, apart from pointing out the basic pre-existing problems in the society, he also mentioned about the unwillingness of the national leaders in his time who were least bothered about bringing changes in the age old customs founded by the society itself. His grievances against these leaders are also brought forth in this project. Lastly, finding it impossible to bring a change in the Hindu society, he asked for conversion of the untouchables to Buddhism as according to him, this will bring an end to all the miseries they are being subjected to all these years. The project tries to precisely highlight all that Dr. Ambedkar had to say about untouchability prevalent in the Hindu society.

35

Pullaguras, Professional Work and Battle Against Untouchability, accessed date-13/06/2013, < http://fightagainstuntouchability.wordpress.com/>

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2. VERDICT IN TIMES NOW CASE: NEED OF THE HOUR

By- Arjun Doshi & Tirth Nayak36

Introduction
The Times Now is a popular and leading 24-hours English television channel which is owned by a media house known as Times Global Broadcasting Co. Ltd a sister concern of Bennett, Coleman & Co, which publishes The Times of India. In its news broadcast in 2008, it ran a story on a multi- crore provident fund scam. While mentioning the name of the then sitting judge of Calcutta High Court, Justice P.K. Samanta allegedly involved in the scam, it inadvertently displayed the picture of a retired Supreme Court Judge and a former Chairman Press Council of India Justice P.B. Sawant for 15 seconds due to mix up of phonetically similar sounding names. After realizing the mistake the news-channel made amends and did not show the picture in the subsequent bulletins and apologized to Justice Sawant and ran the apology in scroll news for five continuous days. However, Justice Sawant proceeded against the Times Global Broadcasting Co. Ltd. for defamation. According to him the channel is liable for damages for offence of libel. The channel is responsible for the negligence in showing wrong coverage should also be punished for his defamation to send a tough message to the news channel against such irresponsible journalism and libellous act. When wrong information about a responsible person is aired by the TV channel to the entire nation and beyond, it is believed by the public and injures that persons reputation. The damage is done. Mere apologies do not restore his damaged reputation and adequately compensate him. The media cannot be law unto itself. Further slap say sorry and forget principle had been discarded from our jurisprudence long back. The Pune district court in which the case was filed awarded him Rs.100 crores as damages. The Times Global Broadcasting Co. Ltd. appealed to the Bombay High Court which passed interim order against it to deposit Rs.100 crores (Rs.20 crores in cash and a bank guarantee for the rest amount of Rs.80 crores) with High Court Registrar as pre-condition before hearing appeal.

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Arjun Doshi, 4th year Student of B.A. LL.B.(Hons.) studying in Institute of Law, Nirma University, Ahmedabad. Tirth Nayak, 4th year Student of B.A. LL.B.(Hons.) studying in Institute of Law, Nirma University, Ahmedabad.

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Ultimately the matter was taken in special leave to appeal (SLP) under Art. 136 to the Supreme Court where the Division Bench of the Court referred the matter back to the High Court and chose not to interfere with the pre-condition that was set by the Bombay High Court. It is the general view of many that the orders of both the High Court and the lower court are incorrect. It is argued that the Judiciary should have been just fair and reasonable. The decision is said to be violative of the Doctrine of Proportionality especially in India where, judiciary has an excellent record of protecting the freedom of media and media also has equally credible record of helping to enforce accountability among public and constitutional office- holders by focusing on corruption. Now the same judiciary is moving on to wholly new and higher level of damages in libel cases. This has come as a surprise to many as awarding such damages for an inadvertent, trivial, human error, where no malice is intended would be economically crippling for the corporation and are unprecedented in our country and the world of electronic media. The current paper against the popular belief attempts to justify the award .This judgment will have a deterrent effect on such activities of media which carelessly harm the reputation of Constitutional office-holders, bureaucrats and other public officers under the guise of freedom of Speech and Expression. This has also led to policy paralysis at the top where bureaucrats and Public Officials fear being scrutinized publically for every bona-fide decision of theirs. Maintainability Of The Special Leave Petition Article 13637 of the Constitution of India, allows special leave to appeal, which can only be granted by the Supreme Court. It does not confer a right to appeal; it only confers a discretionary power.38 Judicial discretion means the exercise of judgment by a judge or a court based on what is fair under the circumstances and guided by the rules and principles of law.39 It is an exceptional power to be exercised sparingly with caution and care to remedy extraordinary situations or situations occasioning gross failure of justice.40 The Supreme Court will not grant Special leave, unless it is shown that exceptional and special circumstances exist, when a question of law of general public importance arises or a decision shocks the conscience of the court 41, that substantial and grave injustice had been done and that the case in question presents features of sufficient gravity to

37

(1) Notwithstanding anything in this Chapter, the Supreme Court may. in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in the territory of India. 38 Pritamsingh v State, AIR 1950 SC 1169. 39 Aero Traders(P)Ltd. v Ravindar Kumar Suri, (2004) 8 SCC 307. 40 Narpat Singh v Jaipur Development Authority, AIR 2002 SC 2036. 41 Arnuachalam v Sethuratnam, AIR 1979 SC 1284.

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warrant a review of the decision appealed against.42 Such powers can only be exercised in suitable cases to entertain appeals which are not otherwise provided by the constitution.43 No leave is to be granted where no serious prejudice is caused to the petitioner by the impugned direction of the High Court.44 The court has the power to exercise discretion but the question is whether in the circumstances under present consideration, it is a proper exercise of discretion to allow the petitioners to have resort to the power of this Court under Art. 136. That question must be decided on the facts of each case, having regard to the practice of this Court and the limitations which this Court itself has laid down with regard to the exercise of its discretion under Art. 136.45 This is not a fit case for the Supreme Court to exercise its discretion and grant leave as the Interim order only mandates deposition of 20crore in cash and 80crores in bank guarantee. This by no means is an exceptional situation, or a gross failure of justice. It is well within the powers of the High Court under Order 41 to demand security to hear the appeal. It is a general practice these days to impose precondition to hear an appeal and is therefore not a question of law of general public importance. The Supreme Court will reject the SLP if the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country.46 Supreme Court does not entertain appeals from interim orders passed by High Court in cases where there is no reason to interfere with it.47 The Constitution of India vide Articles 132, 133 and 134 provides for appeals in civil and criminal cases. No serious prejudice or hardship will be caused to the company by adhering to the precondition as it is a leading 24 hour news channel and such amount is inconsequential to them. The SC would not interfere with a discretionary order merely on the ground that if Supreme Court was required to exercise discretion it may have made a different order. 48 They will not interfere with the exercise of discretion by the HC when it has applied its mind to the relevant facts and circumstance.49 Where the HC has granted relief the Supreme Court would not interfere unless the

42 43

Pritamsingh (n 2). State of U.P. v Uday Prtap Singh, JT 1999 (10) SC 458. 44 TVL Sundaram Granites v Imperial Granites Ltd.,(1999) 8 SCC 150. 45 P.D.Sharma v State Bank Of India, AIR 1968 SC 985. 46 Kunhayammed v State Of Kerala, AIR 2000 SC 2587. 47 Southern Petrochemical Industries Corporation Limited v Madras Refineries Limited , AIR 1998 SC 302. 48 Baldata Bros. v Libra Mining Works, AIR 1961 SC 100. 49 Dhawan v Delhi Administration, (1978) Cr.LJ 769 (SC).

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HC has acted arbitrarily or unreasonable in exercising its discretion.50 Nor, would the Supreme Court interfere with the exercise of discretion of the HC in moulding the relief.51 The constitution trusted the wisdom and good sense of the judges of the Supreme Court as a sufficient safeguard and guarantee that the power will only be used to advance the cause of justice, and that its exercise will be governed by well es7tablished principle which govern the exercise of overriding constitutional powers.52 Hence, the SLP ought to be dismissed. Normally, the Supreme Court does not interfere with the concurrent findings of the facts of the courts below in the absence of very special circumstances or gross errors of law committed by the High Court and violation of the well established principles of the appreciation of circumstantial evidence, which results in serious and substantial miscarriage of justice to the accused. It is found that the High Court was right in its conclusion and there is no good ground for interference.53 The damages in the instant case depend on the injury caused to the Respondent. This depends on the circulation of the news, the reputation of the person in question and many other facts. Thus, this is a question of fact and thus the scope of the Supreme Court to interfere with the findings of the lower court depending on these facts is limited. The Supreme Court has the power to make rules providing for furnishing of security under Article145 of the Constitution of India, 1950.54 The entire genesis of hearing the appeal on merits by imposition of pre-condition is not unknown to the Indian Judiciary. In case of money decrees, it is a common practice. This, being money decree, the setting of the said pre-condition is acceptable. Furthermore, preconditions are imposed to regulate the appeals filed in the appellate court and avoid frivolous appeals.55 The reason for setting pre-conditions may be three-fold, namely, (i) the petitioner has been given a full hearing and his case had been disposed of on merits; (ii) it is a deterrent against frivolous applications, and (iii) it is to safeguard the interests of the respondent who has the judgment in his favour.56 In the instant case, the District Court has disposed of the matter after hearing it on merits. Also, the court has awarded damages commensurate to Rs. 100Crore. It is in the interest of the Respondent that the Corporation furnish security as, otherwise, it would amount to making a mockery of awarding money decrees. Judgment-debtor, in the absence of such a safeguard, would delay the payment of money. There is a reasonable nexus behind the imposition of pre-condition with the object sought to be achieved in the form of safeguarding the interests of the Respondent.

50 51 52 53 54 55 56

State of Punjab v Shalala, AIR 1976 SC 1177. Fule Injections v Kamgar, AIR 1978 SC 324. Kunhayammed (n 10). Baldev Raj v State of Haryana, 2010(4) RCR (Criminal) 532. Lala Ram v Supreme Court of India, AIR 1967 SC 847. Seth Nandlal v State of Haryana, 1980 (Supp) SCC 574. Lala Ram (n 18).

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It is therefore upon the discretion of the court to set a precondition to hear an appeal. This discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case.57 While exercising such discretion, the court should see that no undue hardship should be caused by the imposition of a precondition in lieu of depositing security. 58 Corporation, being a leading 24hour news channel, would not have any hardship in depositing Rs. 20Crore cash. As far as the bank guarantee is concerned, any bank would be willing to furnish the said security for a channel having wide viewership. Therefore, no hardship would be caused. O.41R.1(3)59 of the Code of Civil Procedure, 1908, uses the word shall for deposition of money by the appellants where there is dispute regarding the same in appeals. Shall in its ordinary sense, signifies mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconsistent consequence. 60 Thus, the Corporation is obliged to deposit the said amount. A disability or disadvantage arising out of partys own default or omission cannot be taken to be tantamount to the creation of classes.61 Here, the Corporation, because of its own wrong of causing defamation, was slapped with the damages to the tune of Rs. 100Crores and the High Court followed the general rule of asking security. They cannot claim that the limitation imposed, because of their wrong, is erroneous. Hence, the SC was justified in not maintaining the Special Leave Petition. Rationale Behind Awarding Exemplary Damages Publication of defamatory matter involves the communication of it to some other person than the person to whom the defamatory matter relates.62 The publishing of the photograph is not disputed in the instant case which was evident from the apology scroll which was rendered by the corporation. Libel is actionable per se.63 The effect of an imputation being per se defamatory is that it would relieve the complainant of the burden to establish that the publication of such imputation has lowered him in the estimation of the right thinking members of the public. 64 It is not necessary to prove that the complainant actually suffered, directly or indirectly form the scandalous imputation alleged.65

57 58

Shiror Nagar Palika Bureau v Bhabhlubhai Virabhai and Co ., (2005) 4 SCC 1. Anant Mills Co. Ltd v State of Gujarat & Ors, (1975) 2 SCC 175. 59 Where appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish security in respect thereof as the court may deem fit. 60 Khub Chand v State of Rajasthan, AIR 1967 SC 1074. 61 Anant Mills (n 22). 62 Amar Singh v KS Badatia, (1965) 2 Cr.LJ 693. 63 Jamil v Wall Street Journal Europe, 2006 UKHL 44. 64 S.P.Bobati v Mahadev Virupaxappa Latti, (2005) Cr.LJ 692 (Kant.). 65 MP Narayan v MP Chako, 1986 Cr.LJ 2002 (Ker.).

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Malicious publication, in the sense of active ill-will against the person defamed is not a necessary constituent66 of the offence of defamation u/s 499 of IPC.67 Conscious violation of law to anothers prejudice is sufficient, though there may be no malice in fact. When defamatory words are prima facie libellous, legal malice must be presumed until a case of privilege is made out. 68 Therefore, in the instant case, malice need not be inferred from the facts and circumstances. When an article in a newspaper alleged that a public servant had amassed a tidy amount by the way of bribe, it was held that it was calculated to harm the reputation of the officer concerned and was defamatory.69 Further, the fact that the picture displayed was that of a retired Supreme Court Judge and a former Chairman of Press Council of India aggravates the injury as the stature of the respondent is such that the viewers would be influenced by it. A charge of bribery and corruption would be defamatory.70 The defamatory publication need not necessarily contain matter that describes the complainant accurately by name.71 Although there may be ambiguity in establishing the identity of the alleged person it was sufficient to cause grave injury to the respondent. In the matter of defamation, the position of newspaper is not in any way different from that of the public in general. The responsibility in either case is the same.72 A fair comment must be an expression of opinion and not an assertion of facts. The defence of fair comment only protects statements of opinion and does not extend to defamatory allegations of facts.73 The fact that the corporation has alleged the involvement of the person displayed shows that it is an assertion of fact and not an expression of an opinion. Journalists have no more, and certainly no less, freedom of opinion than is available to any other citizens. He cannot ordinary claim to belong to a privileged class entitled to belong to a special class.74 The corporation ought to be treated as normal men and no special privileges are to be accorded to them. Hence, it is apparent that the corporation, by airing the photograph of the respondents, have committed defamation. It is popularly said that justice should not only be done, it should manifestly and undoubtedly be seen to be done. This common law rule cannot be ignored. The manner in which an imputation is made and the nature of the medium that is selected for making it are very material.75 Here, the
66 67

Muhammad Nazir v Emperor, AIR 1928 All 321. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person. 68 Re. Palani Assani, 1Weir 613 (2). 69 Sohanlal v State, (1962)2 Cr.LJ. 520. 70 Nga Poona v Emperor, 17 Cr.LJ. 213. 71 P Ramaswamy v S.B Adityan, 1971 L.W. (Cr) 83. 72 Dongar Singh v Krishnakant Vyas, AIR 1957 MP 162. 73 TG Goswami v State, AIR 1952 Pepsu 165. 74 Sevakram Sobhani v R.K Karanjiya, (1981) Cr.LJ. 894. 75 Sreenivasa Doss v Venamamalai, 9 Cr.LJ. 425.

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publication was made on a 24-hour leading news channel which ensured widespread circulation. The fact that it was online aggravated the damage caused. In these days were social net-working sites are at the forefront for communication, it may not be exaggerating if we say that the incriminating news would have instantly got wide coverage on such forums. Once published on such forums, it is not possible for the corporation to limit its circulation. . Media should perform the acts of journalism and not as a special agency for the Court. The impact of television and newspaper coverage on a person's reputation by creating a widespread perception of guilt, regardless of any verdict in a Court of law will not be fair.76 It is notable that media houses, nowadays, have started sensationalizing news items in order to increase their viewership, subsequently earning huge economic benefits. This may be one such similar instance. It is a well-known principle of law that when defamation is caused for gaining economic benefits, the awarding of damages is justified in such cases. Further, media has been considered to be the fourth pillar of democracy.77 They have been known to criticize the other three pillars of democracy and revealing the mischievous acts of them. In order to ensure that media houses, while reporting news, take due care and don not mislead the citizens merely for economic benefits, it is imperative that an example is set which would deter them from such negligence in future. By running an apology, they wish to escape their liability. Apology is not a weapon of defence to purge the guilty of their offence, nor is it intended to operate as universal panacea, but it is intended to be evidence of real contriteness. The court could not subscribe to the slap-say sorry-and forget school of thought in administration of contempt jurisprudence.78 Saying sorry does not make the slapper taken the slap smart less upon the said hypocritical word being uttered. Apology shall not be paper apology and expression of sorrow should come from the heart and not from the pen. For, it is one thing to say sorry and another to feel sorry.79 In the light of the above arguments, it is high time that the Indian judiciary increases the amount payable to the aggrieved for defamation. In other Commonwealth countries, imposition of exemplary damages is a frequent phenomenon. In a country like India, which is known for awarding meagre amount as damages, it is an appropriate time to bring change in the system. There is a question as to the propriety of a civil court dispensing sanctions of punishment and deterrence. But, there is also a perceived need to punish and deter defendants of great resources from continuing to publish defamatory statements. In Hill v Church of Scientology of Toronto80 the Canadian Supreme Court emphasised the rational purpose played by an exemplary award of Can

76 77

R.K. Anand v Delhi High Court, (2009) 8 SCC 106, Sanjoy Narayan Editor in Chief Hindustan and Ors. v Hon. High Court of Allahabad Anr., R.G., 2011 (3) ACR 3528 (SC). 78 L.D. Jaikwal v State of U.P., (1984) 3 SCC 405). 79 T.N. Godavarman Thirumulpad (102) v Ashok Khot, (2006) 5 SCC 1. 80 (1995) 126 DLR (4th) 129, 186 ('Hilr).

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$800 000. It was needed to dissuade the defendant from continuing to publish defamatory statements.81 While determining the damages to be awarded in a case, financial condition of the wrongdoer must be taken into consideration. It is not what the plaintiff ought to receive but what the wrong-doer ought to pay.82 Considering that the petitioners are a 24 hour leading news channel which enjoys wide viewership, damages must be in consonance with their status. Deep-pocket theory is an emative phrase which implies that, as between two parties, a financial loss should be borne by the party who has the greater financial resources.83 This theory points that one who engages in an enterprise for profit should bear the losses which other incur as a result of the carrying out of this enterprise.84 The corporate person of the company being beyond the reach of physical punishment, its liability can only be in terms of financial indictment and for that the governing principle would have to be more or less the same as in civil matters, i.e., the company would be responsible where the criminal conduct of those working for it is either within the reach of their authority or in the course of their employment.85 As the court can only impose pecuniary sanction on the company, it is necessary to compensate for the physical restriction that may be inflicted on it, by awarding exemplary damages.

Conclusion
Publishers, editors, journalists and reporters forming part and parcel of freedom of speech and expression, which no doubt includes freedom of press as well, are entitled to ventilate the views only within the permissible limits, permissible by law and not beyond thereto. They are expected to be careful and cautious wile proceeding with publication of the matter and they cannot claim any special privilege as far as the law relating to defamation is concerned. It may be part of their lawful duties, but at the same time they also owe a duty to be careful and diligent in verifying such statements with care and caution before publishing them. Negligent and reckless allegations constituting defamatory statements can never be protected under the guise of any of the exceptions.86

81 82 83 84 85 86

Defamation Act 1974 (NSW), S.46(3). Rustom K. Karanjia v Krishnaraj M. D. Thackersey, AIR 1970 Bom. 424. Mayor, Maven J., The Deep Pocket Rule Revisited, 19 Food Drug Cosm. L.J. 562, 1964. Escola v Coco Cola Bottling Co., Negligence Cases 88, 24 Cal. 2d 453. Jawali (M.V.) v Mahajan Borewell and Co., (1998) 91 Com .Cas. 708. Sultan Salahuddin Owaisi v Syed Vigaruddin, 2005 Cr.LJ. 2726 (AP).

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Article 19(1) (a)87 provides for Freedom of Speech and Expression, which can only be curtailed by reasonable restrictions imposed under Article 19 (2).88 It expressly mentions that in cases of defamation reasonable restrictions can be imposed on the freedom provided for in 19 (1) (a). The press is not immune from the general law of liability for defamation in both civil and criminal cases.89 Reputation is a jus in rem, a right absolute and against the whole world. A mans reputation is his property.90 Hence, nobody can so use his freedom of speech and expression as to injure anothers reputation.91 No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.92 Libel being per se defamatory, injury to the reputation has already been caused. This was done due to the reckless and negligent acts on the part of the employee while publishing the photograph of the respondent as an accused in the Provident Fund Scam. They cannot escape responsibility for careless publication when a person of such high stature is involved.93 The corporation cannot hide under the guise of Article 19 (1) (a) after causing defamation when 19 (2) expressly provides for restrictions on it. The court held that freedom of speech and expression sometimes may amount to interference with the administration of justice as the articles appearing in the media could be prejudicial, this should not be permitted.94 It is, therefore, not only desirable but imperative that electronic and news media should also play positive role in presenting to general public as to what actually transpires during the course of the hearing and it should not be published in such a manner so as to get unnecessary publicity for its own paper or news channel. Such a tendency, which is indeed growing fast, should be stopped.95 In the present case, the news appearing on the channel after the date of occurrence, did cause certain confusion in the mind of public as to the description of the actual suspects. The Respondents photo, here, nonetheless by a mistake was published but the actual person in question was also declared accused before the actual pronouncement of guilt by the court. Presumption of innocence of an accused is a legal presumption and should not be destroyed at the very threshold
87 88

1) All citizens shall have the right- (a) to freedom of speech and expression. Nothing in sub-clause (a.) of Cl. (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said subclause in the interest 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. 89 Printers Mysore v Assistant Commercial Law Officer, (1994) 2 SCC 434. 90 Rahim Baksh v Bachcha Lall, AIR 1929 All 214. 91 MB Kauwar v State, AIR 1963 Punj. 201. 92 Universal Declaration of Human Rights 1948, Art. 12. 93 Hari Jai Singh (in re), AIR 1997 SC 73. 94 M.P. Lohia v State of W.B. & Anr., (2005) 2 SCC 686. 95 S. Khushboo v Kanniammal and Anr., AIR 2010 SC 3196.

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through the process of media trial and that too when the investigation is pending. In that event, it will be opposed to the very basic rule of law and would impinge upon the protection granted to an accused under Article 2196 of the Constitution.97 There is danger, of serious risk of prejudice if the media exercises an unrestricted and unregulated freedom such that it publishes photographs of the suspects or the accused before the identification parades are constituted or if the media publishes statements which out rightly hold the suspect or the accused guilty even before such an order has been passed by the Court. The freedom of speech protected under Article 19 (1) (a) of the Constitution has to be carefully and cautiously used, so as to avoid interference in the administration of justice and leading to undesirable results in the matters sub-judice before the Courts. 98 Every effort should be made by the print and electronic media to ensure that the distinction between trial by media and informative media should always be maintained. Trial by media should be avoided particularly, at a stage when the suspect is entitled to the constitutional protections. Invasion of his rights is bound to be held as impermissible. Despite the significance of the print and electronic media in the present day, it is not only desirable but least that is expected of the persons at the helm of affairs in the field, to ensure that trial by media does not hamper fair investigation by the investigating agency and more importantly does not prejudice the Right of Defence of the accused in any manner whatsoever. It will amount to travesty of justice if either of this causes impediments in the accepted judicious and fair investigation and trial. 99A trial by press, electronic media or public agitation is the very antithesis of rule of law. It can well lead to miscarriage of justice.100 Looking at the facts and circumstances of the present case, the Court was justified in imposing such exemplary damages. In an attempt to mend the medias aberration, the court sends a dual message of controlling the media fraternity from exercising unfettered freedom of speech and expression and saving the reputation of people holding Constitutional position of repute by slapping such hefty penalty.

96 97

No person shall be deprived of his life or personal liberty except according to procedure established by law. Anukul Chandra Pradhan v Union of India & Ors.,(1996) 6 SCC 354. 98 Sidhartha Vashisht (Manu Sharma) v State (NCT of Delhi) , AIR 2010 SC 2352. 99 Ibid. 100 State of Maharashtra v Rajendra Jawanmal Gandhi, AIR 1997 SC 3986.

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3. Secularism in the Indian Context

By- Srishty Banerjee101

Introduction
India is an abode for many religions. Each religion is a social phenomenon, and each has its own community. The character and right of religious observance depends upon the membership of particular social group. 102 It is a country of pluralistic society and a country of religions. The framers of the Constitution thus desired to introduce the concept of secularism, meaning state neutrality in matters of religion. They also wanted to confer religious freedom on various religious groups. Religion has been a very volatile subject in India both before and after independence. The Constitution therefore seeks to ensure state neutrality in this area.103 Religions give rise to diversity of human identities. Insistence on singularity of identity makes the world more flammable. As Amartya Sen observes, ..the main hope of harmony in our troubled world lies in the plurality of identities, which cut across each other and work against sharp divisions around one single hardness line of vehement division that allegedly cannot be resisted. Our shared humanity gets savagely challenged when our differences are narrowed into one devised system of uniquely powerful categorisation.104 In the context of secularism in India, it is said that India is neither religious, nor irreligious not anti religious. It implies that in India there will be no state religion-the state will not support any particular religion out of public fund. Indian constitution unequivocally provides for a secular state and has enjoined upon Indian democracy the task of creating a new social order were social equality will prevail, political and economic justice will be order of the day and secularism will govern the relations of all the citizens inter se and those of the with the state. The Indian concept of secularism recognizes the relevance and validity of religion in life, but seeks to establish a rational synthesis between the legitimate functions of religion and the legitimate and expanding functions of state. That is why the constitution-makers deliberately avoided the use of the word secular and secularism in the relevant provisions of the constitution.

101

Srishty Banerjee, M.A.,LL.M. (Delhi University), Lecturer Mewar Law Institute, srishty.banerjee@ymail.com J.D.M. Derrett, Religion, Law and the State in India (Faber & Faber, London 1968) at p. 57. 103 Prof. M.P.Jain, Indian Constitutional Law, Edt. 5 th, 2009, p. 1200, Lexis Nexis, New Delhi. 104 Amartya Sen, Identity and Violence: The Illusion of Destiny, at pp. 16-17, Penguin Books, India
102

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Secularism: Meaning
Secularism or Secular State means a State, which does not recognise any religion as State religion, but treats all religions equally.105 According to Webster's dictionary the word 'secularism' means a sprit or tendency especially a system of political or social philosophy that rejects all forms of religious faiths or worship or the view that the matters of civil policy should be conducted without the influence of religious beliefs: Oxford dictionary defines the word 'secular' as concerned with the affairs of this world, worldly not sacred, not monastic, not ecclesiastical.106 In the words of Asgar Ali Engineer, Secularism means liberation of politics from the hegemony of religion. 107 The secularism of today is built on the original distinction but also involves a transformation of it. Secularism today ensures that religion will exist only in the individuals private sphere. The state upholds no religion and pursues no religious goals. This is known as the common ground approach where a common ground is set for all religions.108 The term secularism was coined in 1850 by G.J. Molyoake (an Owenite Socialist, an atheist and the last person to be imprisoned for blasphemy in Britain), who saw it a movement , which provided an alternative to theism. Historically, secularism intermingled with and was at its best with atheism. Atheists like Charles Bradluagh, Charles Watts, G.E. Forte were closely associated with the movement. Bradlaugh argued that secularism was bound to contest theistic belief and that material progress was impossible, so long as superstitions born out of religious beliefs and practices remained a powerful force in society.109

Concept of Secularism
The concept of secularism is difficult to define and has been thus defined in the Constitution. The concept is based on certain postulates. Thus, there is no official religion in India. There is no state-recognised church or religion. Several fundamental rights guarantee freedom, or worship and religion as well as outlaw discrimination on the ground of religion and, thus, by implication prohibit the establishment of a theocratic state. The State does not identify itself with, or favour,
Malik & Raval, Law & Social Transformation in India, Edt. 2 nd, 2009, p.77, Allahabad Law Agency. Kishor Kunal, Freedom of Religion in Secular State (May 29, 2013), www.ssrn.com 107 Tarun Arora, Secularism under the Constitutional Framework of India (May 29, 2013), http://www.legalserviceindia.com/articles/ct.htm 108 Charles Taylor, Modes of Secularism, in Rajeev Bharghava ed., Secularism and its Critics (New Delhi: Oxford University Press, 1998), 109 Kamaluddin Khan, Secularism in India-A Brief Study (June 3, 2013), http://twocircles.net/book/export/html/135428
105 106

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any particular religion. The State is enjoined to treat all religions and religious sect equally.110 An academic definition of the concept of secularism in the Indian context has been attempted by Donald Eugene Smith as the secular State is a State which gives individual and corporate freedom of religion, is not constitutionally connected to a particular religion, nor does it seek either to promote or interfere with religion. 111 In Ziyauddin Burhammuddin Bukhari v Brijmohan Ramdass Mehra 112 Justice Desai puts it, a secular State deals with the individual as a citizen, irrespective of his religion, is not connected to a particular religion nor does it seek to promote or interfere with religion. Secular State must have nothing to do with religious affairs except when their management involves crime, fraud or becomes a treat to unity and integrity of the State. The concept of Secularism is not static; it is elastic in connotation. In this area, flexibility is most desirable as there cannot be any fixed views on this concept for all time to come. The courts decide from time to time the contours of the concept of secularism and enforce it is practice.113

Secularism in Indian Constitutional Framework

The word secular was inserted into the preamble of the Constitution by 42 nd Constitutional Amendment Act, 1976, but concept of secularism was already implicit in the Constitution in granting liberty of..............belief, faith and worship through the preamble.114 The essential basis of the Indian Constitution is that all citizens are equal, and that the religion of a citizen is irrelevant in the matter of his enjoyment of Fundamental Rights. The Constitutional ensures equal freedom for all religions and provides that the religion of the citizens has nothing to do in socio-economic matters.115 The concept of Secularism was not expressly incorporated in the Constitution at the stage of its making. However, its operation was visible in the Fundamental Rights and Directive Principles. The concept of secularism, though not expressly stated in the Constitution, was nevertheless, deeply embedded in the Constitutional philosophy. 116 In 1976, through the 42nd amendment of the Constitution, the concept of secularism was made explicit by amending the Preamble.

110 111

JAIN, Supra note 2, at 14 MALIK & RAVAL, supra note 4, at 78. 112 1975 Supp. SCR 281. 113 JAIN, Supra note 2, at 1202. 114 MALIK & RAVAL, supra note 4, at 78. 115 JAIN, supra note 2. 116 JAIN, supra note 2, at 1201.

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Constitutional Provisions: Various provisions of Indian Constitution contemplate the secular nature of India. Article 14,15,16,17 along with Article 25-28 and 44 sufficiently provides intention of the framers of the Constitution.117 No discrimination on the basis of religion- Art. 14 grants equality before law and equal protection of law and provide that the State shall not discriminate against any person on the ground of religion.118 Art. 15- Article 15(1) provides that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Article 15(2) provides that no citizen on the ground only of religion, race, caste, sex, place of birth or any of them.............. Thus, Article 15 promotes the notion of Secularism.119 To protect this right there is an Act in the form of Protection of Civil Rights Act, 1955.120 Article 16 prohibits discrimination on the ground religion in public employment. Article 17 prohibits untouchability and provides bedrock of secularism. Freedom to profess or practice religion- Art. 25(1) guarantees to every person and not only to the citizens of India, the freedom of conscience and the right freely to profess, practise and propagate religion. However state can impose restrictions on this freedom on the following grounds121- (i) public order, morality and health; (ii) other provisions of the constitution; (iii) regulation of nonreligious activity associated with religious practice; (iv)social welfare and reform. In Stainislaus Rev. V. State of M.P122 it was observed the freedom of one cannot encroach upon a similar freedom belonging to other persons. Freedom of religion does not mean forcible or fraudulent conversion and any such conversion would be violative of this article. The provision of this Article is not

117 118

Supra note 5. MALIK & RAVAL, supra note 4, at 79. 119 Supra note 5. 120 Supra note 16. 121 Ratilal Pnachand Gandhi v. State of Bombay, (1954) SCR 1055 :AIR 1954 SC 388. 122 AIR 1975 MP 163 at 166.

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limited only to citizens of India but it is also available to the aliens, 123and individuals exercising their rights individually or through institutions. Subject to the other Provisions of this Part The freedom of religion under Art.25 is subject to the interest of the public order, so that it could not authorise the outrage of the religious feelings of another class, with a deliberate intent.124 Similarly, the word morality and health gives the power to the competent legislature to prohibit deleterious practices. Eg:- sacrifice of human beings in the name of religion; or to direct the exhumation or removal of graves or interred corpses for the purpose of detection of crime or for preventing breach of the peace between fighting communities;125or tandav dance performed by anandmargis on the public street.126 Restrictions on freedom of religion under Art.25 :1) Religious freedom subject to public order, morality and health 2) Regulation of economic, financial, political and secular activities associated with religious practices (Art.25 Clause (2) (a)) The freedom to practice religion extends to only those activities which are the essence of religion. Social welfare and Social Reforms clause (2)(b) Under clause (2) (b) of Art. 25 the State is empowered to make laws for social welfare and social reform. Therefore, under this clause the state has power to eradicate social practices and dogmas which stand in the path of the countrys future progress. Such law does not affect the essence of any religion. In other words, when there is conflict between the need of social reform and welfare on one side and religious practice on the other, religion must yield.127 An Act which prohibited bigamy was held valid in State of Bombay v. Varasu Bopamali 128 , polygamy is not an essential part of the Hindu religion. Under this clause state has power to throw open all Hindu religious institutions of a public character, to all classes and sections of Hindus. Article 26 provides for the freedom to manage religious affairs. The broad principle is that a state made law can regular the administration of property of religious endowment, but the law cannot

123 124

Lata singh v. State of Uttar Pradesh, Case no: Writ Petition (crl.) 208 of 2004 Cf. Ramji Lal Modi v. State of U.P., AIR 1957 SC 620 125 Gulam Abbas v. State of U.P AIR 1983 SC 1268 (para 6) 126 Jagdishwaranand Avadhuta, Acharya v. Police Commr., Calcutta, AIR 1984 SC 51 (para 12-13) 127 Supra note 4. 128 AIR 1953 Bom.84.

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take away the right of administration altogether. As under article 25, under article 26 also, courts have made a distinction between the essentials of religion and non essentials. With article 25 begins a group of provisions which ensure equality of all religions, thereby promoting secularism. The emphasis in this article is on the practice of religious freedom by individuals. The emphasis in article 26 is on the establishment of institutions.129 Article 28 guarantees- i) certain degree of religion-state separation in the field of education, ii) right to endowment or trust educational institutions to impart religious education, and iii) right to option to every person with regard to receiving religious instruction or participating in religious worship in any state recognised or aided educational institution. Article 29 and 30 guarantees cultural and educational rights to i) every linguistic, scriptoria or cultural section of the citizens of India, ii) every citizen of any religion, race, caste or language, iii) every religious or linguistic minority, and every religious or linguistic minority educational institution.130

Most Important components of secularism are as under : 1. 2. Samanata (equality) is incorporated in article 14; Prohibition against discrimination on the ground of religion, caste, etc. is incorporated in articles 15 and 16; 3. Freedom of speech and expression and all other important freedoms of all the citizens are conferred under article 19 and 21; 4. 5. Right to practice religion is conferred under articles 25 and 28; Fundamental duty of the state to exact uniform civil laws treating all the citizens as equal, is imposed by Article 44; 6. Sentiment of majority of the people towards the cow and against its slaughter was incorporated in articles 48.

129 130

JAIN, supra note 2, at pp 1209-1210. Bharatitya, V.P, Religion-State Relationship and Constitutional Rights in India, 1987 p. 360, Deep and Deep Publication, New Delhi.

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Sarva Dharma Sambha Indian concept of secularism lakes in color from Article 15, Article 25 and 26. These are among the list of fundamental rights of citizens. It is interesting to note that Indian Constitution merely states the behavior of the state in terms of what it will not do (i.e. not discriminate based on religion). It does not say that the state has or has not a religion. It does not say whether state can or cannot participate in religion. It does not say whether state can or cannot spend public money on religious activities. Even so India recognizes law based on religion. Hindu, Muslims and Christians are governed by their own religious laws. Thus, India does not really fit into any text book definition of secularism. It has, in fact, created its own brand of secularism. Indeed, Supreme Court of India observed in the case of Aruna Roy v. UOI131 when it said Indian secularism means Sarva Dharma Sambhav and not Sarva Dharma abhav meaning equal feeling for all religions and not no feeling for any religion.

Indias constitution commitment to secularism synonymous to its commitment to social justice

The Indian constitutions commitment to secularism is, Jacobsohn argues, synonymous with its commitment to social justice. As such, Indias constitutional model is one of positive secularism, wherein The constitutional commitment to social reform means that governmental policies may be acceptable if their purpose is to eradicate social inequities traceable to religious practices, even if these policies are targeted at specific communities. The targeting does not violate the relevant legal requirement, because whatever group differentiation result, occurs within a context in which constitutionally sanctioned policy goals have been explicitly posited as the measure of equal treatment.132 In order to ascertain the meaning of the expression secularism in the context of our Constitution the place of the word secularism is very important. The word Secular was placed by 42nd amendment after Socialist and before Democratic Republic. In this regard Justice
131 132

(2002) 6 SCALE 408. Gary J. Jacobsohn, The Wheel of Law: Indias Secularism in Comparative Constitutional Context, 2003, p 153, Princeton University Press.

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Reddy said that the constitutional commitment to secularism is to a great extent a commitment to the pursuit of Social Justice and Equality of Status and Opportunity.133

Secularism as the Basic Feature of Indian Constitution

To underline the great significance, in Bommai,134 the Supreme Court declared it as the basic feature of the Constitution. The essential basis of the Indian constitution is that all citizens are equal, and that the religion of a citizen is irrelevant in the matter of his enjoyment of Fundamental Rights. Though the word secular was not originally in the constitution and it was added thereto by the 42nd constitutional Amendment in 1976. The Apex Court has declared secularism as the basic feature of the Indian Constitution in the landmark case of Kesavananda v. State of Kerala.135 This view was crystallize in S.R. Bommai v. Union of India (1994) and thus made unamendable. Secularism is a cardinal principle enshrined in the preamble and body of the Indian Constitution, adopted as a key feature and the cornerstone of the strategy of nation-building. Any step inconsistent with the constitutional policy is, in plain words, unconstitutional.136

Conclusion
Secularism is one of the major instruments for building a modern polity. It is one of the fundamental values of our national life, emphasised by the national movement and the Founding Fathers of the Republic. India is not the only country in the world where there is secularism, but there is perhaps no other country in the world where there is secularism like that of India. In our country the term secularism has a wider connotation and ample ambit. It has different shades and colours which are all included in Indian Secularism. The secularism as exists in India denotes that there is no State religion. All religions are equal in its eyes and all are given equal recognition and protection. Secularism in the Indian constitutional context means that right to freedom of religion is supplemented by freedom to practice and propagate their religion. Secularism introduces science and rationalism in the society and forms the basis of a modern State. In 1976

133 134

S.R. Bommai v Union of India, AIR 1994 SC: (1994) 3 SCC 1. S.R. Bommai v Union of India, AIR 1994 SC: (1994) 3 SCC 1. 135 AIR 1973 SC 1461 at 1506: (1973) 4 SCC 225. 136 M. Ismail Farqui v Union of India, AIR 1995 SC at 630.

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the concept of secularism was apparently adopted as Indias path to political modernity and national integration. In the end, secularism begins in the heart of every individual. There should be no feeling of "otherness" as we all have is a shared history. India being a traditional society that contains not one, but many traditions owing their origin in part to the different religions that exist here, has so far managed to retain the secular character of its polity. Explaining the secular character of die Indian Constitution the Supreme Court observed: "There is no mysticism in the secular character of the state. Secularism is neither anti-God nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matter of the state and ensures no one shall be discriminated against on the ground of religion.

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3. Critical Appraisal of the Death Penalty

By- Shashank Mishra137

Introduction
The death penalty or capital punishment is a very controversial and debatable issue. Different people have different opinions about how the criminal should be disciplined. But till now no conclusion can be made about the retention or abolishment of provision of death penalty. As per J.R.R. Tolkien, many that live deserve death, and some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgment. It has been practiced as a mode of punishment from the ancient period to remove the criminals from the society. In many countries the death penalty is dropped and replaced by the life imprisonment. Different countries have different outlook towards crime in different ways. Arabian countries follow the retributive theory of punishment of an eye for an eye and tooth for a tooth some others follows deterrent theory of punishment while some other countries like India adopted the reformist theory of punishment. India has retained the death penalty only on the ground that it will be awarded only in the rarest of the rare cases. Though what are the components of the rarest of the rare case has neither answered by the Legislature nor by the Supreme Court. The primary purpose of the punishment is to change the character of the offender. According to Roman Jurisprudence, punishment should not be for the sake of punishment; rather it should be for reform. The death penalty nullifies that purpose.

Protection of Rights of Those Facing the Death Penalty

What a piece of work is a man! how noble in reason! how infinite in faculty! in form, in moving, how express and admirable! in action how like an angel! in apprehension how like a god! the beauty of the world! the paragon of animals! The Economic and Social Council in its Resolution of 25th May, 1984 approved a series of safeguards guaranteeing protection of the rights of those facing the death penalty . These safeguards are as follows: (1) The offenders have the right to benefit from lighter punishments under certain conditions and to appeal and seek pardon.

137

Shashank Mishra, 3rd year Student of B.A. LL.B.(Hons.) studying in Faculty of Law, University of Allahabad

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(2) That persons below 18 years of age, pregnant women, new mothers and persons who have become insane are exempt from capital punishment. (3) That guilt must be established on the basis of clear and convincing evidence. The Member States were urged by the Economic and Social Council in its Resolution of 24th May, 1989, to take practical steps to implement these safeguards. One of the most important Human Rights treaties that India has ratified, the International Covenant on Civil and Political Rights (ICCPR), also supports progressive movement towards the abolition of the Death Penalty. Article-5 of Universal Declaration of Human Rights, 1948 stipulates that no one shall be subjected to torture, cruel inhuman or degrading treatment or punishment. In the light of Article 5, it can be stated that the sentence of death falls under the scope of Article 5 of the Declaration. Contentions in favor of death penalty: Some people believe that those who kill others deserve to die. When a person takes another persons life the person also forfeits its right to live. The death penalty is the greatest deterrent to murder; if the person knows that he will be punished by death he will be less likely to commit a crime. Death Penalty is the ultimate assertion of societys highest form of disgust for humanitys worst crime. Death Penalty, after a civilized, legally scrutinized and successively tested judicial proceeding, is intrinsic and instinctive to societys right to exist.

Contentions against the death penalty: A murder is always wrong whether it is unconstitutional or constitutional. One of the jobs of state is to protect the life of the individuals and not to take the human life even in the name of law. In the civilized society in which we live, is the notion of an eye for an eye or tooth for a tooth is acceptable? People are executed not because of the heinousness of the crime rather of the incompetence of their advocate. Reformation of the criminal and his rehabilitation is the primary purpose of punishment. Imposition of death penalty nullifies that purpose. That there is no perceptible evidence to show that the sentence of death has any definite advantage in reducing the rate of any specific offence.

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Apex Court Rulings on the Death Penalty As far as Indian Supreme Court is concerned the constitutional validity of the death penalty was first time challenged in Jagmohan Singh v. State of U.P , where this court rejected the argument that Death Penalty is violative of Right to life and personal liberty guaranteed under Article 21 of the constitution of India. However, in Rajendra Prasad v. State of U.P , Supreme Court has stated that death penalty is violative of the Article 14, 19 and 21 of the Constitution of India. But this court in the historic case of Bachan Singh v. State of Punjab , overruled its previous decision and held that death penalty as an alternative punishment for murder is not unreasonable and therefore it is not violative of Article 14, 19 and 21. The Supreme Court in the same case also evolved the principle of rarest of rare cases in awarding the death penalty to the accused. In Om Prakash v. State of Haryana , the Supreme Court commuted the death sentence into life imprisonment by relying on the reformative theory, the Court held: There is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute continuing threat to the society. In the cases of Ramnaresh and Others v. State of Chattisgarh , Neel Kumar and Anil Kumar v. State of Haryana , and State of U.P v. Sanjay Kumar . In all the above three cases the death penalty is commuted to the life imprisonment as the case did not fall under the ambit of rarest of rare case. This shows that even the Supreme Court is not interested in levying of death penalty in all cases rather it is moving towards the rehabilitation and reformation of the accused.

Steps towards Worldwide Abolition of Death Penalty

The worldwide trend in respect of death penalty would reveal divided over the death penalty. There is an increasing harmony among the western countries that in the 21st century the death penalty has no place. Several international organization including the United Nations are pressing for its abolition worldwide. Interestingly United States of America siding with countries like Iran and Syria oppose the move in its effort to erase death penalty from world map. The United Nations General Assemblys Human Rights committee on 15th November, 2007 passed a resolution by 99 to 52 votes seeking abolishing the death penalty and called for a moratorium on all executions . Between funeral fire and mental worry
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it is the latter which is more devastating for, funeral fire burns only the dead body while the mental worry burns the living one.

Conclusion
The deterrent effect is one of the basic arguments of the retentionists of the death penalty. Human behaviour is complex and actuated not only by fear, but also by love, loyalty, greed, lust and by many other factors. In spite of these arguments, the retentionists are convinced of the deterrent effect of the death penalty. They believe that such deterrent effect cannot be seen directly, but it acts can be observed on the community in the form of moral consciousness. Thousands of murders are committed each year and to check murders, national interest demands that the guilty persons should not escape justice. The best deterrent sentence would be one of life imprisonment , and that should mean imprisonment practically for the whole life, and not just 14 or 20 years as at present . Perhaps the knowledge that a murder would make one spend their whole life in prison would act as a sufficient deterrent. Death penalty is not necessary for an effective system of criminal justice. There is no evidence that the countries that have suspended the death penalty are less just or less effective in dealing with the crime than those countries that executes the criminals. Decades of research have failed to show any persuasive evidence that the death penalty is more effective than the life imprisonment as a deterrent to murder . The financial burden of the countries that includes death penalty is far heavier than those who have life imprisonment without parole. The imposition of the death penalty was not so much of the heinousness of the crime rather it is of the incompetence of the advocates. It is a harsh reality that by the death penalty we are removing the criminals but we cannot remove the crime committed by them. No one wants to be criminal but it is a circumstances and conditions which make them criminals. So what they needed, they only needed counseling because they are sick though their acts fall under the ambit of crime but that act committed in some unavoidable circumstances. It believes that the kind and loving behavior with the criminals can have the revolutionary change in their character. Frankly speaking, execution of the criminal is merely an admission of the fact that we (human being) are not capable to reform the criminals. Though we are moving towards twenty-second century yet we are staying and acting as a man who follows the retributive theory of punishment.
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5. International Humanitarian Law: Its evolution, applicability and challenges of Contemporary Armed Conflict
By- Rishika Arora138

Introduction
The first part of the Article focuses on the concept of an Armed Conflict and laws relating to International Armed Conflict, then moving on to the principles and rules aimed at protecting persons and property affected by armed conflict under the International Humanitarian Law. The next part aims at providing an illustrative description of the history and evolution of the Laws of War. The last part of the Article deals with the implementation of Humanitarian Laws and the situations that pose a challenge in effective functioning codified laws at the time of armed conflict.

International Armed Conflict

An armed conflict is a conflict of arms and weapons between two or more distinct States with an aim to assert power or resolve a dispute or their disagreements using force wherein more than words; weapons start to speak. War results in sufferings of innocent people and mass destruction of property. War no matter how well reasoned or stated as valid recourse to the situation cannot be justified when compared to the immeasurable suffering and destruction. Yet the States are not ready to bring this evil to an end. Conventions under the International Humanitarian Law refer to different forms of armed conflict but there is no specific criteria that determines the applicability of the particular rule. Broadly, speaking an armed conflict can be categorised as an international armed conflict and a non-international armed conflict. But for the purpose of the article we would be concentrating on the concept of international armed conflict. A non-international armed conflict may or may not fall within the criteria of armed conflict as there is a certain level of intensity that is required to be reached for an armed conflict to be considered as one. A conflict would not fall under the purview of International Humanitarian Law and cannot be considered a non-international

Rishika Arora, B.A.LL.B(H) (year 2 013) presently working as a Law Researcher with Honble Ms. Justice Indermeet Kaur Kochhar, Delhi High Court, New Delhi
138

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armed conflict when disturbance is sensed but there needs to certain magnitude for international law to intervene within the Sovereign boundaries of a State. The rules legally laid down and the legal regime varies in its applicability depending upon case to case. Therefore some form of violence does not reach the threshold of applicability of international humanitarian law and therefore fall within the scope of other normative frameworks.139

The Law of International Armed Conflict

The concept of war is not new. It has been a part of the human existence since time immemorial. But during the savage a there exist no law or rule governing a War. An outburst of disagreements leading to brutality affected not just the combatants fighting on the for-front and the Government but everyone leading from an innocent person from the public, to cattle and other animals to mass destruction of property and environment. There are various international treaties governing armed conflicts as in accordance to the time in which they became applicable namely, Hague Conventions140, the Geneva Conventions141, the two Additional Protocols,
142

Hague Cultural Property Convention 143 and Convention on Certain

Conventional Weapons144. The States have accepted the International treaties of War and have taken the responsibility to comply with the provisions laid down in theses treaties. The States are bound to respect and to ensure respect for these treaties in all circumstances. It is next to impossible to lay down rules for every situation to arise in future, hence these treaties and conventions have formulated their provisions in accordance to the situation that is expected to arise in the future. As there cannot be an established and detailed framework sufficing provisions for all circumstances and eventualities arising in the future with precision, hence these instruments do not provide a criteria that determines the category within which a situation shall fall precisely. Therefore, the rules that apply vary from case to case.

139

Sylvian Vite, Typology of armed conflicts in international humanitarian law: legal concepts and actual situation, International Review of the Red Cross Volume 91 Number 873 March 2009. 140 1907 141 1949 142 1977 143 1954 144 1977 and 1980

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The year of 1945 can be parked as the end of conventional means of war-age with the revision of three former Geneva Conventions and addition of the fourth Geneva Convention for protection of civilians during an armed conflict. The Geneva Conventions set out a number of general provisions known as the Common Articles to all four Conventions setting special agreements with the High Contracting parties that deal with their application in international conflict and at time of enemy occupancy.

International Humanitarian Law

International Humanitarian Law A set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. ICRC International Humanitarian Law or the Laws of War is a branch of law of nations governs relation between States based on fundamental principles laid down. It is very difficult to find documentary evidence to trace the history and evolution of humanitarian perspective during time of war. As war has been an ongoing process since beginning of human life. The laws relating to war had been incorporated in the religious books and codes of different religions be it the Bible, Quran or Mahabharata. Earlier the major source of laws relating to war were the customary laws145, a concept that as the name suggests was based on local customs and customary practices that were then applied during time of war. There can be no creator of International Humanitarian Law. International Humanitarian Law was majorly an outcome of the massive and barbaric outburst from Second World War. Wherein, the principles of War needed to be balanced with Human Rights incorporated under the UDHR; there was a need to incorporate the general obligation within the basic Humanitarian perspective/ humane treatment when at War. Today most part of the International Humanitarian Law can be traced back to two persons Francis Lieber and Henry Dunant, who unknowingly at the same time set the foundation of the International Humanitarian Law. Henry Dunant made major contribution to the International Humanitarian Law. He was a Swiss businessman and social activist. During his trip in 1859 he witnessed the aftermath to the Battle of Solferino. Looking at the ghastly sight on the battle field with several wounded and dead people with no one coming to provide them aid, he dropped the
145

Refer to Implementing of International Humanitarian Law.

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idea with which he came to Italy and for few years roamed around the State collecting information. He then penned down his memories and experiences in his book A memory of Solferino that lead to formation of International Committee of Red Cross in 1863, then based on his ideas the Geneva Conventions were formulated in the year 1864. Henry Dunant had two main proposals. Firstly, to form such committees of trained volunteers and personnel that would carry out relief societies to provide medical assistance and care to the victims of war. He proposed in having such committees in every nation with volunteer rendering their services to the combatants. He proposed that such medical assistants and volunteer shall be trained in the peace time, this lead to formation of ICRC and subsequently, National Societies. Secondly, to form such an international treaty among the nations in order to assure humane treatment and care to victims of armed conflict. The first Diplomatic Conference was held in 1864 and the first Geneva Convention was adopted (that was later ratified to present day Geneva Conventions), this led to the birth of present day International Humanitarian Law. During this conference a neutral sign to identify the medical relief team and services was adopted. The international Red Cross and the Red Crescent Movement is composed of the National Societies, the International Committee of the Red Cross and the International Federation of Red Cross and Red Crescent Societies. They are guided by the fundamental principles of humanity, impartiality, neutrality, independence, voluntary service, unity and universality. The activities revolve around one objective: to help without discrimination and to promote peace. From the outset has worked on the principles of humanity and dispensing human treatment even in the times of war. ICRC played a prominent role at the time of conflict, it conducts and directs relief activities in time of armed conflict by promoting and strengthening humanitarian law and universal humanitarian principles. The Lieber Code marked the first attempt to codify the existing laws and custom of wars. It served as Instructions for Government of Armies of the United States in the Field. 146 It was the first codifies law signed by President Abraham Lincoln that laid down the principles for ethical and humane treatment to in the occupied territories or the land of the enemy. It is codified under Article 67 of the Code is observant of war being a resort available to every sovereign, it states as The law of the nation allows every sovereign government to make war upon another sovereign State, and, therefore admits of no rules or laws different from those of regular warfare, regarding the
146

Wikipedia

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treatment of prisoners of war, although they may belong to the army of a government which the captor may consider as a wanton and unjust assailant. Hence it can be deduced that war was considered as a necessary. The Code also enunciate protection of civilians and decent treatment to prisoners of war as the ground rule for war, the same has been codified as: Nevertheless, as civilization has advanced during the last centuries, so has likewise steadily advanced, specially in war on land, the distinction between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honour as much as the exigencies of war will admit147. The aspect relating to the prisoners of war is referred to as: A person of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the international infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.148 Honourable men, when captured, will abstain from giving to the enemy information concerning their own army, and the modern law of war permits no longer the use of any violence against prisoners in order to extort the desired information or to punish them for having given false information.149 The code further provides provisions relating to protection of hospitals, the actions to be taken in levying taxes and similar other measures. It draws a distinction between military purpose and humanitarian grounds, it clearing demarcates actions of brutality and cruelty are not military necessity neither are acts of use of poison and toxic gases hence the humanity overrides such acts. The two men marked the beginning of International Humanitarian Law Dunant and Lieber both build on an idea put forth by Jean-Jacques Rousseau in The Social Contract theory in the year 1762 that a state of war is not between individuals but two States wherein the individuals fight as the soldiers of the State and after the state of war comes to an end; they come back to being mere individuals. Hence the terminology International Humanitarian Law and Law of war may be regarded as synonyms of one another; the only difference being the later is more commonly used by the Armed Forces.

147 148

Article 22 of the Lieber Code. Article 56 Ibid 149 Article 80 Ibid

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The International Humanitarian Law sets out 7 fundamental principles; First, parties to a conflict must at all times distinguish between horse de combat (civilians) and those who are directly taking part in the hostilities. Those not taking part in the hostilities are entitled to respect for their lives and their moral and physical integrity and they shall at all the circumstances be protected and treated humanely. Secondly, it is forbidden to kill or injure an enemy who surrenders. Thirdly, the wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Protection also covers medical personnel, establishments, transports and material. The emblem of the Red Cross (Red Crescent, red lion and sun) is the sign of the protection and must be respected. Fourthly, captured combatants and civilians under the authority of an adverse party are entitled to respect for their lives, dignity, personal rights and convictions. They shall be protected against all acts of violence and reprisals. They shall have the right to correspond with their families and receive relief. Fifthly, everyone shall be entitled to benefit from fundamental judicial guarantees. No one shall be held responsible from fundamental judicial guarantee or for an act he has not committed neither shall be subject to physical or mental torture, corporal punishment or cruel or degrading treatment. Sixthly, parties to a conflict and their members do not have unlimited choice of methods and means of warfare. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering. The seventh and last principle requires parties to a conflict to distinguish between civilian population and combatants in order to spare civilian population and property. Neither civilian population nor persons shall be object of attack. Attacks shall be directed solely against military objectives.

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Implementing International humanitarian Law

Broadly speaking International Humanitarian Law is implemented vide two sources namely The Customary Law and International Treaties and Conventions that are inclusive of International Accords and Guidelines. Customary Law Customary law is a general practice accepted as law- ICRC. Customary law is often unwritten a comprised of official account of military operations, military manuals, National Legislation and case laws as its sources. Customary law majorly applies in situations not covered by treaties; when nations are not party to a treaty, in case of non-international conflicts, for acts not specifically mentioned in treaties and in case of armed non-state actors. For customary law to be applicable it is necessary that the State believes that the practice is legally binding on them as a member of the community of nations and that they must follow the practice and are not free to depart or deviate from the practice. Following could me listed as the sources of Customary Law: Nuremberg Trials were a series of military trials, held by allied forces of World War II most notable for the prosecution of prominent members of the political, military, and economic leadership of Nazi Germany 150 There were seven principles (as mentioned below 151 ) adopted governing war crimes and crimes against humanity, that majorly contribute to the foundation and applicability of customary laws. Principle I - Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. Principle II - The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.

150 151

Wikipedia The Commission of Inquiry for the International War Crimes Tribunal, WWW URL: http://deoxy.org/wcnurem.htm

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Principle III - The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law. Principle IV - The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. Principle V - Any person charged with a crime under international law has the right to a fair trial on the facts and law. Principle VI - The crimes hereinafter set out are punishable as crimes under; international law: Crimes against peace: Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; and participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under the former part. War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. Crimes against humanity: Murder, extermination, enslavement, deportation and other

inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. Principle VII - Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.

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Rome Statute152 - The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). It was adopted at a diplomatic conference in Rome on 17 July 1998 and was enforced in the year 2002. The Rome Statute established 4 core international crimes (genocide, crimes against humanity, war crimes and the crime of aggression). Under the Rome Statute, the ICC can only investigate and prosecute the core international crimes (genocide, crimes against humanity, war crimes and the crime of aggression) in situations where states are unable or unwilling to do so themselves. The court can investigate crimes only in states that signed the Rome Statute unless authorized by the U.N. Security Council. During the period International Commission of Red Cross codification that begun in 1995 and completed 8 years after, in the 2 volumes totaling over 5,000 pages it identified 161 customary rules that are in practice even today.

Treaties and Conventions Broadly they could be categorized as The Hague Stream and The Geneva Stream. The two branches of International Humanitarian Law draw their names from the cities where each was initially codified153. Hague stream establishes the rights and obligations of belligerents in the conduct of military operations, and limits the means of harming the enemy. It constitutes of regulation of the means and methods of warfare such as : Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction [1972]; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects [1980]; Protocol on Blinding Laser Weapons [1995]; and Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction [1997].

152 153

Wikipedia International Humanitarian Law, Answers to your questions, ICRC.

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With the adoption of the Additional Protocols of 1977, which combine both the branches, that the distinction is now of merely historical and didactic value.154

Geneva Conventions
In its judgement in case of Nicaragua vs. the United States, the International Court of Justice in the Hague stated that the four Geneva Conventions were in certain respects the extension of the general principles of international humanitarian law and, in another respect, simply the expression of those principles.155 The general obligations as set down by the four conventions preface that in all circumstances of an armed conflict a defenseless and innocent person shall be spared and protected of unnecessary infliction of sufferings and should receive humane treatment. In all the four conventions specific category of persons are covered. Geneva conventions and its protocols have been the only international treaty having achieved universal applicability, and has been signed and ratified by all the Nations. They taken the obligation to respect the treaty and also enforce respect for the treaty. Although existing civilization had developed norms for itself in form of cultural ethos, religious norm, morals based on society value etc. but there was a need for a codified binding document in order to avoid clashes based on immoderation. International Humanitarian Law hence lays down set of rules in order to avoid any form of discrepancy in the norms to be followed. The set form of Geneva Conventions act as the International Humanitarian Laws database provide the codified provisions to be applied varying on the situations that may arise. Brief of the four conventions is been provided below: The First Geneva Convention is for the Amelioration of the Condition of the Wounded and Sick in Armed Forces and the Second Geneva Convention is for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of at Sea, both the conventions are of August 12, 1949. The major challenge that was being faced initially was whether these conventions are applicable to armed forces or civilians but with the addition of Protocol I it did away with the difference and brought them under one category i.e. wounded and sick i.e. the defenseless; be it on land or in sea. The conventions lays down the combatants to respect and care for such wounded
154 155

Ibid. Case concerning Military and paramilitary activities in and against Nicaragua, International Court of Justice, Judgement on 27 June 1986 (merits), para 218.

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and sick and protect them as they are defenseless and can no more participate in the armed conflict and provide them medical aid and care on humanitarian grounds putting behind the thought that these are from enemy State because other than their origin nothing else discriminates them from the States own people. Such medical units (Chapter III) and the medical personnel and Chaplains (Unit IV) working under the ICRC or as volunteers shall be protected and respected at all times and be provided with all possible help. In The First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces contains general provisions followed by Chapter II dealing with the wounded and the sick. Drawn from the 1929 prisoners of war convention, enumerates the categories of persons put on the same footing as members of the armed forces hence entitled to protection under the convention 156 . It also gives a list of prohibited acts: attempts upon life, torture, willful abandonment and so on157. The information to be given about the wounded captives and the duties to the dead have been defined.158 Article 18 guarantees to the inhabitants and to Relief societies the right of assisting the wounded and sick. The Second Geneva Convention also known as the Maritime Convention applies to the maritime warfare. It contains about 63 Articles and these articles adapt the provisions of the land convention and closely follow them. Chapter II after following the general provisions common to the four conventions protects the shipwrecked in addition to the wounded and sick. Members of the merchant navy are protected159 in so far as they are not entitled to be protected under any other international law. Chapter III deals with the hospital ships and other relief and Chapter IV provide for conditions in reference to medical personnel and crew at sea. Such personnel and crew may not be captured or retained. Chapter V deals with the medical transport and Chapter VI the recognition in respect to be provided to Distinctive Emblem. The Third Geneva Convention relative to Treatment of Prisoners of War, August 12, 1949 deals with the plight and sufferings of the prisoners of war, and protecting them against insufferable infliction of pain and torture when they are captive in enemy State. It states that the prisoners shall

156

Article 13 The First Geneva Convention is for the Amelioration of the Condition of the Wounded and Sick in Armed Forces. 157 Article 12 158 Article 16 and 17 159 Article 13 of The Second Geneva Convention is for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of at Sea.

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be allowed to retain their legal status as member of armed forces, shall be allowed to wear their uniforms and at the end of hostilities shall be allowed to return to their native country without delay. Part II of the 3rd Geneva Convention contains principles governing the treatment of prisoners of war. Part III deals with the conditions after capturing the prisoner of war, their living conditions, food, clothing, hygiene, medical attention, religious needs, intellectual and physical activities and other penal and disciplinary procedures. Part IV deals with the procedures and steps to be taken in termination of captivity whereas Part V and Part VI deals with the provisions relating to organizations form to assist prisoners of war and keep timely check on their conditions and various other details. The Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of August 12, 1949 which states that the civilians that fall in the hands of the enemies shall be protected. It is the civilians who suffer the most because they are unarmed and defenseless are easy targets. The parties in war shall at all time distinguish between the civilians and the combatants. It is during the time of hostilities that the civilians suffer the most one at the time of military operations itself and when they are exposed in the hands of enemy power. The civilian population as whole is required to be protected that is inclusive of children, women, aged, wounded, men etc., for this purpose safety zones and neutralized zones160 shall be created with the prior permission of both the parties where no military invention shall be allowed. It has been codified that special measures are to be taken for protection of children161 and of civilian hospitals162, as well there shall be appropriated and protected means of communication of family means163. Protocol I in addition to this provides for special care that is to be taken for children below 15 years of age. The Fourth Geneva Convention contains One hundred and fifty nine articles and 2 annexes. The preamble submitted by the French and Finnish delegations, but not adopted, set out that the eternal principle of that law which is the foundation and the safeguard of civilization, and is designed to ensure the respect of human personality and dignity by putting beyond reach of attack those rights and liberties which are the essence of its existence. Part II of the convention lays down provisions for protection of civilian population during war. It states that the population is to be considered as

160 161

Article 14 and 15 Article 24 162 Article 18 163 Article 25

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whole and not only protected persons164. In other words, protection of those; who are defenseless and cannot protect themselves.

Contemporary trends in armed conflict and challenges being faced

Distinction between civilian and military During the war time following principles of International Humanitarian Law becomes very difficult to follow either out of the sheer ignorance on the part of the High Contracting Parties or the circumstances are such that the civilian population and property ought to get destroyed. In other words the basic foundation that International Humanitarian Law works on is the principle of distinction between the innocent and the ones involved in the armed conflict. The principle of distinction was laid down as early as 1868 in St. Petersburg Declaration stating as follows: That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy165 The principle of distinction is rarely played in armed conflicts, until and unless the principle of protection is not incorporated the same cannot be achieved. To compare, at one end there are armed combatants carrying with them weapons and technological advanced destructive machinery and on the other there are innocent civilians who might not be aware that they are going to be attacked. A bomb does not discriminate between a civilian and combatant. Technology playing the major role in todays world can cause mass destruction miles away from the actual target. In such circumstances it isnt possible to distinguish whether the targeted area consists of only combatants and military personnel or is it habitation of civilians. Moreover, in time of war none really discriminate between the uniformed men and civilians. It is next to impossible to distinguish based on physical appearance when firing has been called out from both the sides.

164 165

Article 4 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Reprinted in A. Roberts and R. Guelff, Documents on the Laws of War, 2nd edn. (Oxford, Clarendon Press 1989) pp. 30-31.

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Terrorism Another form of armed conflict arising these days is terrorism, the same cannot be called as the direct form of war but the motive behind it remains the same i.e. to harm the enemy State. It is an attack on the principles of distinction with the main aim to hurt civilian population and inflict such damage and suffering instilling fear in the minds of the people residing in the State. Such an act not just disrupts the governance of such a State by causing destruction of property and killing of people but also affects the economy of the State globally scaring away the foreign tourists and other investors. An act of terrorism then leads to an act of counter-terrorism against the enemy State at the end of the suffering State. Hostilities The direct participation at the end of civilians leading to their unlawful participation and danger posed by unlawful combatants is what posses as a major threat and challenge. According to the Dictionary of the International Law of Armed Conflict, hostilities means an act of violence by a belligerent against an enemy in order to put an end to his resistance and impose obedience 166 It covers both the time spent and preparations done firstly in preparing for an attack and then counterattack based on unlawful methods of conflict. The term hostility has both a temporal and a material aspect. Regarding the former, hostilities covers both the time spent in the preparation for, the execution of and the return from an attack. According to the authoritative ICRC Commentary on the Additional Protocols: It seems that the word hostilities covers not only the time that the civilian actually makes use of a weapon, but also, for example, the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon.167 Regarding the material aspect, hostilities covers acts of war which are specifically intended by their nature or their purpose to hit the personnel and the materiel of the armed forces of the adverse Party.168 Civilians who take direct and active part in hostilities by taking up arms and weapons and participate injuring and killing lose their immunity and might be killed at enemys hands. The acts of delivering weapons, operating computerised weapons or participating in strategic weapon organisation would be considered as participating in the armed conflict and make them fall within
166 167

P. Verri, Dictionary of the International Law of Armed Conflict (Geneva, ICRC 1992) p. 57. Y. Sandoz, C. Swinarki and B. Zimmerman, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, eds. (Geneva, ICRC/Martinus Nijhoff 1987) (Geneva, ICRC 1987) para. 1943, pp. 618-619. 168 Ibid., para. 1942, p. 618.

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the purview of the definition of hostilities. Such situations render it difficult to distinguish between innocent civilian population and civilians participating in hostilities. There can be no set criteria or demarcation to set out civilian from that of participating in hostilities. Other than this it also becomes difficult to set out exactly what kind, extent or magnitude of an action carried out by a civilian can be said to be an act of hostilities. For example a scientist working for his nation forming such weapons to destroy or counter an already existing war attack would such an act be considered as part of hostilities and to what an extent such participation would not be considered as one. And how far can intention are considered as subjective evaluator? And who will determine these criteria and on what basis? All these questions are unanswered in codified conventions and treaties.

Women in Armed Conflict Women actively have been participating in the armed conflict. Wherein, there is a general notion attached to a womens image as that of a nurturing, caring and motherly figure in the recent past it has been seen that women are actively participating with men in the hostilities. It has hence become a common perception that if women are seen with a group of combatants then it to be a part of the hostilities even if they have forcefully been abducted for sex or to cook and clean. Hence, there is an image in the mind of the enemy Sate that these women are also a threat to them.

Situation of Child Soldiers in armed conflicts

With the increase in the intensity of violence posed in an armed conflict it is rather disturbing to see participation of child combatants in the armed conflicts. Such children are either abducted or have been misled into joining the conflict. This has become one of the major threats posed in the armed conflicts of the present times. Even on laying down numerous provisions in order to provide special protection to the children from participating in wars, it is their young age and vulnerability that makes them an easy target. The suffering of the children does not end there where such children become prisoners of war then they are subject to such atrocities and insufferable conditions that the meet their end or they are tortured to extract information available to them. In
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some cases they are trained to fight on behalf of the enemy State in war as a consequence of which such children lose immunity and protection from either of the States. The major key issues relating to the Article having been discussed at length it can be said how difficult it is to determine the situation leading to invoking of the International Humanitarian Law. International Humanitarian law is continuously evolving with the contemporary armed conflict and challenges it is facing. The basis of International Humanitarian Law and ICRC has always been to ensure humanitarian treatment and protection to victims of armed conflict. The role ICRC and other actors working towards protection of humanitarian law is important but the goal cannot be achieved till the time States are not ready to understand their own responsibilities and work towards ensuring peace and harmony internationally.

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6. Shocking Reality of Juvenile Homes

By- Kritika Mahajan169

Juvenile Justice (Care and Protection) Act, 2000 was enacted for children who are below 18 years of age and are found in difficult circumstances or are in danger of survival and growth and for children who are involved in crimes. The Juveniles cannot be sent to jail and the laws are not as same as for adults. The Purpose behind the enactment of this Act is to provide special approach towards the prevention and treatment of juvenile delinquency and provides a framework for the protection, treatment and rehabilitation of children in the purview of the juvenile justice system. The act provides for establishment of Juvenile Justice Institutions like Observation home, Special homes and Shelter homes for Juveniles who are in need of protection, treatment and rehabilitation. These Protection homes are set up to protect the juveniles but this is done only in the piece of legislation the reality is different and shocking. The other side of these so called protection homes are out after Asian Centre for Human Rights an NGO dedicated to the promotion and protection of human rights in the Asian region has submitted its report on child sexual assault in Indias juvenile justice homes to the visiting UN Special Rapporteur on Violence Against Women. ACHR in its 56 page report titled Indias Hell Holes: Child Sexual Assault in Juvenile Justice Homes stated that sexual offences against children in India have reached an epidemic proportion and a large number of them are being committed in the juvenile justice homes run and aided by the Government of India. In the report citing National Crimes Record Bureau statistics, stated that a total of 48,338 child rape cases was recorded from 2001 to 2011 and India saw an increase of 336% of child rape cases from 2001 (2,113 cases) to 2011 (7,112 cases). It was also mentioned in the report that it is only partial picture and major cases are not being reported. In the case of government-run juvenile justice homes, the perpetrators were staffs including the caretakers, security guards, cooks and other Class IV employees, and the senior inmates. In two cases, the sexual abuses were committed by the senior inmates in collusion with the staff where as in Privately/NGO-run juvenile justice homes, the perpetrators include managers/ directors / owners/founders and their relatives and friends, staff members such as caretakers, wardens, cooks, drivers, security guards, gatekeepers, senior inmates and outsiders including security forces.

169

Kritika Mahajan,4TH Year BBA LLB(Hons), ITM Law School, Gurgaon

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Mr Suhas Chakma, Director of Asian Centre for Human Rights stated that : It will not be an understatement to state that juvenile justice homes, established to provide care and protection as well as re-integration, rehabilitation and restoration of the juveniles in conflict with law and children in need of care and protection, have become Indias hell holes where inmates are subjected to sexual assault and exploitation, torture and ill treatment apart from being forced to live in inhuman conditions. The girls remain the most vulnerable. It matters little whether the juvenile justice homes are situated in the capital Delhi or in the mofussil towns. In report it has been stated that many of the child rape cases take place in juvenile justice homes established under the Juvenile Justice (Care and Protection of Children) Act, 2000 and by the end of financial year 2011-2012, about 733 juvenile justice homes were fully supported by the Government of India under the Integrated Child Protection Scheme (ICPS) of the Ministry of Women and Child Development. There are many shocking and alarming cases reported against protecting homes. In the case registered against Kalyani Mahila and Balak Sanstha, Panvel, the caretaker was arrested and it was found that four of the inmates were repeatedly raped while the others were sexually and physically molested. At Vidyawati Ashram at Kanephata, a 13-year-old was reported pregnant, while a girl escaped from Shirur government observation's home and was later raped outside by a driver from Chandanagar. In Aurangabad's 103-year-old missionary home, two girls were reportedly abused, while another private home operating from Raigad had reported of a rape incident170. Two children of the Thiruvanjoor Juvenile Home came forward with tales of how caretakers and senior boys sexually abused them. The victims informed that they were beaten with large sticks and at night the wardens and senior boys would remove their clothes and abused them171 In Allahabad High Court another shocking case was registered against Vidyabhushan Ojha ,the peon at government's juvenile home for girls in Shiv Kuti .He was accused of raping two girls and

170Available

at http://www.indianexpress.com/news/to-prevent-child-abuse-at-protection-homes-maha-govt-ropes-inunicef-ngos/1060601/[ visited on 28 April, 2013] 171 Available at http://www.ucanindia.in/news/children-sexually-abused-in-kerala-juvenile-home/19318/daily [visited on 28 April,2013]

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sexually abusing another in the Juvenile home, having sexually abused other girls in the past and shockingly he was posted there since 2006. In Jharkhand there is only one observation home for girls and nine for boys in the state, which are unhygienic and do not provide proper care to its inmates. These homes are meant for the temporary reception of any juvenile in conflict with the law during the pendency of any inquiry against him / her. Only children in conflict with law brought under the purview of the Indian Penal Code (IPC) and other legislations are produced before the juvenile justice board. Such children are admitted to these homes by police. Though the law has a provision for one observation home in every district, these homes are yet to come into existence in 14 of the 24 districts, even after 12 years of the formation of a separate state. Delinquent girls are ferried from the districts to Deoghar, which has the lone female observation home in the state. Though the Juvenile Justice Act 2006 says the inquiry should be over within 90 days of the crime, several children continue to suffer in the observation homes without anyone to fight for their rights.172 Above cases are few examples of rampant rape cases in Juvenile homes. The ACHR report also lists 39 instances of such horror stories. Asian Centre for Human Rights in its report has blamed the Government of India i.e. the Ministry of Women and Child Development and the State Governments for the continuing sexual assault on children in the juvenile justice homes. The National Commission for Protection of Child Rights, State Commissions for Protection of Child Rights and the Child Welfare Committees intervene only after crimes are reported but there are no preventive mechanisms or regular inspections. In the report four main reasons for sexual assault have been highlighted: 1) There is no Inspection Committee to inspect the Juvenile Justice homes. 2) There are hundreds of unregistered child care homes across the country despite the requirement to register the same within six months under JJ(C& PC) Act, 2006.Funds are also given by Govt. even if the institution is unregistered.

172Available

at http://timesofindia.indiatimes.com/city/ranchi/Childhood-lost-in-juvenilehomes/articleshow/19687716.cms [visited on 28 April,2013]

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3) Though there are 462 District Child Welfare Committees (CWCs) in 23 States mandated to verify fit institutions , majority of them exist only on paper 4) Rule 40 of the Juvenile Justice (Care and Protection of Children) Rules 2007 provides for separate facilities between for boys and girls as well as according to age but this provision is not complied with. There should be Inspection Committees formed to inspect these Institutions .Separate facilities for boys and girls should be made and all the unregistered institutions must be registered. There is an urgent need for strict laws in our Country. The rape cases are increasing with an alarming rate and if now the action is not taken then it will be too late.

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7. STATE IMMUNITY: ITS ORIGIN, AND DEVELOPMENT THROUGH LANDMARK CASES

By- Angshuman Hazarika173

State immunity is a restriction on the jurisdiction of states founded on international comity. It would be an affront to the dignity and sovereignty of a state for that state, or for an individual personifying that state, to be impleaded before the courts of another state.174 It is a basic principle of international law that a sovereign state does not adjudicate on the conduct of a foreign state. The foreign state is entitled to procedural immunity from the processes of the forum state. This immunity extends to both criminal and civil liability. The rules of state immunity lay down the extent to which a state is protected from being sued in the courts of other states. The rule of Par in parem non habet imperium thus developed which stated that no state can claim jurisdiction over another. A successful plea of immunity will prevent a state being made a party to proceedings in the courts of a foreign state and will protect its property from being seized to satisfy a judgment. Immunity can extend to legal proceedings against the state itself, its organs and enterprises and its agents. It is international law that determines the general rules of whether or not a state should be accorded immunity by the courts of another state, but it is national law that interprets and applies those rules. In the United Kingdom, for example, the State Immunity Act 1978 sets out the circumstances under which immunity will be granted to other states in this country. 1.1. Origins of State Immunity The traditional view of state immunity stems from the fact that it originated from the personal immunity of sovereign heads of state. However, instead of relying on only one source for the development of the law, it can state that this practice has been developed through judicial decisions, communication made to the judiciary by the executive and also by opinion of jurists.175

173 174 175

Angshuman Hazarika, 4th Year, BA LLB. (Hons.), Rajiv Gandhi National University of Law, Punjab Hatch v. Baez, 7 Hun 596. Jurgen Brohmer, State Immunity and The Violation of Human Rights, Martinus Nijhoff Publishers, London, 1997, p.3.

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Over time, a number of customary rules barring domestic courts from adjudicating disputes involving another state have emerged under international law. These rules are commonly justified by the need to avoid interference with the exercise of its sovereign prerogatives by the foreign state and to allow its representatives to perform their official duties without undue impairment. The International Law Commission (ILC) explained that customary international law on state immunity has grown principally and essentially out of the judicial practice of States on the matter, although in actual practice other branches of the government, namely, the executive and the legislature, have had their share in the progressive evolution of rules of international law.176 1.2. Periods of Development of State Immunity The doctrine of foreign state immunity, like most legal doctrines, has evolved and changed over the last centuries, progressing through two periods. 177 It was born out of tension between two important international law normssovereign equality and exclusive territorial jurisdiction. 178 The first period, covering the eighteenth and nineteenth centuries, has been called the period of absolute immunity, because foreign states are said to have enjoyed complete immunity from domestic legal proceedings. It is during this period where the connection between heads of states and the immunity of the state was developed. There was virtual unanimity in international law and practice those sovereigns (both states and heads of state) were absolutely immune from the jurisdiction of foreign courts until the early to mid-twentieth century.

The second period emerged during the early twentieth century, when Western nations adopted a restrictive approach to immunity in response to the increased participation of state governments in international trade.179 This period was marked by the development of the theoretical distinction between acta jure imperii, state conduct of a public or governmental nature for which immunity was granted, and acta jure gestionis, state conduct of a commercial or private nature for which it

Special Rapporteur, Preliminary Report on Jurisdictional Immunities of States and Their Property, 23, U.N. Doc. A/CN.4/323, reprinted in 2 Y.B. INTL L. COMMN 231 (1979). 177 Lee M. Caplan, State Immunity, Human Rights and Jus Cogens: A critique of the Normative Hierarchy Theory, 97 AJIL 74, 743 (2003). 178 Ibid, p.745. 179 Peter D. Trooboff, Foreign State Immunity: Emerging Consensus on Principles, 200 RECUEIL DES COURS 235, 26667 (1986 V).
176

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was not.180 This distinction rested on the growing notion that the exercise of jurisdiction over acta jure gestionis did not affront a states sovereignty or dignity. Since applying the public/private distinction proved difficult for many courts, some states, particularly the common-law countries, developed a functional variation on the restrictive approach in the 1970s and 1980s, replacing that hazy distinction with national immunity legislation. It is during this period that the need for a definitive law governing state and diplomatic immunity was felt. As such, since 1970s, the development of state immunity has been gradually developed through promulgation of various national and regional laws such as English law, US law and etc. 1.3. Doctrine of State Immunity From the doctrinal approach, there are two different doctrines regarding state immunity: the absolute doctrine and the restrictive doctrine. Although the doctrine of absolute immunity had been accepted in the initial stage, the restrictive doctrine had become widely accepted through doctrinal opinions and international conventions because of complexity to distinguish public act and private act in the former doctrine. A brief overview of both the doctrine is as follows: 1.3.1 The Absolute Immunity Doctrine Absolute immunity means a complete exemption from civil liability, usually afforded to officials while performing particularly important functions, such as a representative enacting legislation and a judge presiding over a lawsuit.181 The first major judicial decision on state immunity came from the Supreme Court of the United States in the famous case The Schooner Exchange v. M' Faddon, 182 where the Court held that the perfect equality and absolute independence of sovereigns" prohibits one state to exercise the "exclusive territorial jurisdiction, which has been stated to be the attribute of every nation." This case was one of the mile stone as the first judicial expression of the doctrine of absolute immunity. According to this doctrine, at that time state had enjoyed immunity without restrictions as perfect privilege. The absolute theory of immunity was widely accepted in other countries as well.183

Rosalyn Higgins, Certain Unresolved Aspects of the Law of State Immunity, 29 NETH. INTL L. REV. 265, 26770 (1982) 181 Absolute immunity, Blacks Law Dictionary, 9th Ed., 2009 182 The Schooner Exchange v. M' Faddon, 11 U.S. (7 Cranch) 116 (1812). 183 Peter Malanczuk, Akehursts Modern Introduction to International Law , Routledge Publishers, New York, 1997, p.119.
180

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Germany adhered to this doctrine until 1945. England courts followed the doctrine until about 1975 and with them the courts of other commonwealth countries. Regarding with state-owned and state-operated ships, the Parlement Belge 184 case, the Porto Alexandre 185 case, The Cristina case186 and the Pasaro case187 were the leading cases which established the absolute rule of state immunity in UK and US courts. During, the late quarter of the nineteenth century, foreign trade had been declined gradually around the world because of governments' participation in trading activities which led to become unfair by using immunity. However, during the time, even the absolute doctrine was widely accepted, its exact content was unclear to use because various degrees of immunity have always existed. The application of absolute immunity caused unfair or unjust circumstances on private enterprise trading with government entities. In most countries, there were examined that whether state immunity should or should not continue to apply when states greatly involved in economic spheres. Today, the absolute immunity doctrine is not applied throughout the entire world. 1.3.2 The Restricted Immunity Doctrine The doctrine of absolute immunity resulted in dissatisfaction among people around the world. The judicial and scholarly dissatisfaction resulted in the concept of restrictive immunity. Where the act was commercial in nature, jus gestionis, a foreign state could not claim immunity; but where the act was public or governmental, jus imperii, the claim of immunity was allowed.188 Under the doctrine of restrictive state immunity, a state has immunity from the jurisdiction of a local court only in respect of certain classes of acts. A distinction is to be drawn between acts of sovereign nature and acts of commercial nature. Essentially, the distinction designed to ensure that the state is treated as a normal litigant when it behave like one, and as a sovereign when it exercises sovereign power.31 Today, the restrictive doctrine is gained worldwide acceptance. It gives some extent of clarification of distinction between state acts and commercial acts, most of the countries have already adopted the law in line with this doctrine. The doctrine was codified in the USA

Parlement Belge, (1880) 5PD 197 Porto Alexandre, (1920) P.30, 1AD, P.146. 186 The Cristina, (1938) AC485, 9AD, P.250. 187The Pasaro, (1926), 271 U.S.562. 188 Hannes v. Kingdom of Roumania Monopolies Institute, 260 App. Div. 189, 196-97, 20 N.Y.S.2d 825 (1940).
184 185

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through The Foreign Sovereign Immunities Act of 1976 and in UK through the UK State Immunity Act of 1978.189 1.4. Judiciary and Development of State Immunity Judiciary has played arguable the most important role in development of the concept of State immunity. Judiciary and Judicial Pronouncements have laid down the basic foundation behind the concept of State Immunity as seen in Contemporary International Law. The concept has developed more due to the decisions of the domestic courts rather than the international courts as cases have tended to first come to the domestic courts than for decision by the International Courts. Here we discuss the leading cases of International Law on the topic and try to understand the history of their development. The cases have been derived from domestic courts around the world and show the changing perspective of the courts on this widely discussed topic. The cases date back from the early 19th century to the present days and most of them show a new perspective on the issue. 1.4.1 Cases from the 19th Century 1.4.1.1 The Schooner Exchange v. McFadden Case The Schooner Exchange v. McFadden Case is a decision of United States Supreme Court from 1812. The Schooner Exchange v. McFadden 190 , is the source of American foreign sovereign immunity jurisprudence. In that case, American plaintiffs claimed to be the rightful owners of an armed French ship found in a United States port. The plaintiffs sought execution on the vessel. Citing international custom, Justice Marshall determined that state immunity was based upon the "perfect equality and absolute independence of sovereigns and [a] common interest impelling them to mutual intercourse." Referring to the importance of maintaining friendly relations with other nations, the Supreme Court confirmed that state immunity is based upon international comity among nations. The Supreme Court ultimately endorsed the suggestion of the Executive Branch and refused to permit the exercise of jurisdiction by a United States court over the French war ship. Although The Schooner Exchange is usually cited for the proposition that the United States adopted a broad, absolute form of state immunity, Justice Marshall actually planted the seeds for the restrictive theory of foreign sovereign immunity by noting the distinction between an armed

Elihu Lauterpacht, C.J. Greenwood & G. Oppenheimer, International Law Reports- Volume 123, Cambridge University Press, Cambridge, 2003, p.92. 190The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116 (1812).
189

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public vessel (such as the Schooner Exchange) and private merchant vessels entering the United States for purposes of trade.191 1.4.1.2 The Tate Letter Scenario This is the letter, dated 19 May 1952, from the U.S. State Department's Acting Legal Adviser Jack B. Tate to the Acting Attorney-General,192 stating the shift in policy of the U.S. Government from support for the absolute theory of sovereign immunity to support for the restrictive theory, thereby conferring immunity on foreign States for their public and governmental, but not their commercial, activities. This theory of restrictive sovereign immunity was given statutory effect in the United States by the Foreign Sovereign Immunities Act of 1976: 90 Stat. 2891. Under this new policy, the State Department retained initial responsibility to decide questions of sovereign immunity using the new restrictive immunity framework. However, application of the Tate Letter policy proved difficult and unpredictable. The State Department did not always opine in cases involving foreign sovereigns. Further, the State Department sometimes was guided by political or diplomatic considerations rather than the restrictive immunity approach.193 1.4.2 Cases from the 20th Century 1.4.2.1 Ex parte Republic of Peru In the Ex parte Republic of Peru194 case, it requested immunity in a case relating to the failure of its vessel to carry certain cargo. Peru sought a suggestion of immunity from the Department of State, which informed the lower court that it recognized the foreign state's immunity. The district court found instead that Peru had waived its immunity, and Peru sought a writ from the Supreme Court. The Supreme Court addressed the executive branch's role in the Court's decision-making process, concluding that the Court would follow the State Department's immunity suggestion rather than risk embarrassment in the conduct of U.S. foreign relations. When a claim is made against a foreign sovereign, it may choose to appear in court and allow the judiciary to make the immunity decision, or it may first request immunity from the U.S. Department of State. When the foreign sovereign pursues this latter route, the executive branch's determination is conclusive. This

C.T. Oliver & J.M. Sweeney, Cases and Materials on the International Legal System, Foundation Press Publishers, London, 2004, p.195. 192 26 State Dept. Bull. 984 ( 1952 ); 47 A.J.I.L. 93 (1953). 193 L. Oppenheim & Ronald Roxburgh, International Law: A Treatise, The Lawbook Exchange Ltd., New Jersey, 2008, p.456. 194 Ex parte Republic of Peru, 318 U.S. 578 (1943).
191

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case was one of the first cases which clarified the role of the executive branch in determination of immunity of a foreign state. 1.4.2.2 Al-Adsani v. Government of Kuwait In Al-Adsani v. Government of Kuwait195 the claimant alleged that he had suffered torture in a security prison in Kuwait, and obtained leave to serve out of the Jurisdiction the Government of Kuwait (and three individual, one of whom was served) on the ground that he had in consequence suffered psychological damage after returning to and while in England. The Government of Kuwait applied to set aside the service on it, and for a declaration that it had immunity under S. 1 (1) of the U.K. State Immunity Act of 1978. The Court of Appeal granted its application, holding that the Act was a comprehensive code, and that although international law prohibited torture, no express or implied exception to immunity existed in cases of torture. Mr. Al-Adsani took the issue to the European Court of Human Rights, claiming that such immunity infringed his right of access to the English Courts under article 6 of the European Convention on Human Rights. The European Court held by 9 to 8 that there had been no such infringement, it is important to note that both the majority and the minority considered that article 6 was prima fade engaged as a result o f the procedural bar on the national courts power to determine the right. 196 This case showed the preliminary steps in International Law towards a situation when the crime of torture would not be considered for immunity. 1.4.2.3 Government Soap Factory, Bangalore v. Commissioners of Income Tax In Government Soap Factory, Bangalore v. Commissioners of Income Tax197 the Courts in Ceylon accepted the certificate of the executive branch of the Government, recognizing the defendant as a foreign sovereign entity, entitled to jurisdictional immunities from Ceylonese Courts. This case shows the development of Asian practice where equal emphasis was placed on the executives opinion to determine the immunity of a state organization. This practice continues to the present day in India.

Al-Adsani v. Government of Kuwait, (1996) 107 I.L.R. 536. Alina Kaczorowska, Public International Law, Routledge Publishers, New York, 2010, p.379. 197 Government Soap Factory, Bangalore v. Commissioners of Income Tax 122- D.C. (Inty.), Income tax
195 196

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1.4.2.4 Church of Scientology Case In the Church of Scientology Case 198 , the German Supreme Court observed that the claim to immunity by the defendant (the Head of New Scotland Yard) was not derived from his person, but was because the act on which the claimant sued was: A sovereign act of state which can only be attributed to the British State and not to him or any other official acting on behalf of that state, because the state is always considered the actor when one of its functionaries performs acts which are incumbent on it. The German supreme Court went on to recognize the traditional distinction between sovereign acts (acts jure imperii) and other acts entirely unrelated to the official activities of the agency concerned or the task entrusted to it. And that any attempt to subject state conduct to German jurisdiction by targeting the foreign agent performing the act would undermine the absolute immunity of sovereign state in respect of sovereign activity. It is therefore logical to conclude that the standard for determining whether immunity is warranted does not depend on the identity of the person or entity so much as the nature of the act for which the person or entity is claiming immunity. This case was a path breaking step in International Law because it now linked the role of state organizations and employees also under the overall umbrella of state immunity.199 1.4.2.5 A.G. of Israel v. Eichmann200 The Supreme Court of Israel in A.G. of Israel v. Eichmann, stated that no immunity survived in respect of international crimes committed by state officials which were both: (a) contrary to jus cogens and (b) so serious and on such a scale as to amount to an attack on the international legal order. It is therefore axiomatic that a plea of immunity ratione material must be consistent with these recognized exceptions. This case served as the foundation for gradual removal of the rule of absolute immunity and was quoted in famous cases such as the Arrest Warrant Case and the Pinochet Case201. 1.4.2.6 Democratic Republic of the Congo v. Belgium (Arrest warrant Case) In the case concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium202), A Belgian investigating judge had issued an international arrest warrant against the serving Congolese Minister of Foreign Affairs. The warrant was in respect of alleged serious
Church of Scientology Case, (1978) 65 I.L.R. 173. Arnold Pronto & Michael Wood, The International Law Commission 1999-2009, Oxford University Press, New York, 2010, p.160. 200 A.G. of Israel v. Eichmann, 36 I.L.R. 35. 201 R. v. Bow Street Metropolitan Stipendiary Magistrate, 3 W.L.R. 146 (H.L. 1998). 202 Democratic Republic of the Congo v. Belgium, (2002) I.C.J. Rep. 14.
198 199

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violations of international humanitarian law, including crimes against humanity. Congo claimed that this constituted a violation of the sovereignty of the Congo and a contravention of the sovereign equality of states. An essential issue was whether the Minister was entitled to immunity from the Belgian criminal process while a serving Minister, even though the alleged crimes would, if proven, amount to serious breaches of international law. The court found that in customary international law, the immunities accorded Ministers of Foreign Affairs is to ensure the effective performance of their functions on behalf of their respective states and not for their personal benefit. The court further observed that a Minister for Foreign Affairs responsible for the conduct of his or her states relations with all other states occupies a position such that, like the Head of State or the Head of Government, he or she is recognized under international law as representative of the State solely by virtue of his or her office. However, the court stated that they did not consider that immunity amounted to impunity. The case showed a different opinion of the World Court on the issue of state immunity, a viewpoint which was even different from the other international courts such as The International Criminal Court, ICTR and ICTY which had allowed for waiver of immunity in case of serious crimes. 1.4.2.7 Verlinden B.V. v. Central Bank of Nigeria The Supreme Court of America in the Verlinden Case203 showed a completely different approach to the right of sovereign immunity. The Court stated that the granting of immunity is a matter of grace and comity on the part of the United States. This opinion of the court differed completely from the prevailing opinion then that immunity arose from principles of customary international law.204 1.4.2.8 Hannes v. Kingdom of Roumania Monopolies Institute In Hannes v. Kingdom of Roumania Monopolies Institute 205 , the New York Supreme Court, Appellate Division determined that a state-owned corporation was immune only if it was operated for governmental pm-poses. A distinction was made between acts of a private nature, jus gestionis, and acts of a public nature, jus imperii. This distinction-the first step in the erosion of absolute immunity-led to a change in the American practice relating to jurisdictional immunity, namely

203
204

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. 480, 486 (1983).

Curtis A. Bradley & Jack L. Goldsmith, Foreign Relations Law: Cases and Materials, Aspen Publishers, London, 2006, p.520. 205 Hannes v. Kingdom of Roumania Monopolies Institute, 260 App. Div. 189, 20 NYS. 2d 825.

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executive suggestion of immunity, which change, in turn, raised the problem of separation of powers. Here, while covering the cases, we have not considered the special immunity granted to the heads of states and have only covered the immunities to the states. However, many authors consider Head of State immunity to be a subject connected to the core of state immunity itself. 1.4.2.9 Latest developments on the issue of Sovereign Immunity: The debate on the issue of Sovereignty has been renewed in modern times due to the decision of the ICJ in the Jurisdictional Immunities of the State206 (Germany v. Italy, Greece Intervening) case. The ICJ in its judgment dated 3 February, 2012 declared that Italy had violated its obligations under International law by allowing claims on German property in its territory for crimes committed by the German Reich. Thus, the ICJ had again reiterated the established principle in Public International law regarding the existence of jurisdictional immunities of the state.

1.5 Treaties and Development of State Immunity Over history, there have been numerous important treaties and Conventions which have shaped the development of the topic of state immunity. A few important conventions have been described in this chapter and they are enumerated as follows: a) European Convention on State Immunity, 1972207 The European Convention on State Immunity was adopted by the members of the States of the Council of Europe, now called the European Union in Basel, 11 May, 1972. The convention entered into force on 11 June, 1976 on receipt of the necessary ratifications.

The Convention aims to establish common rules relating to the scope of the immunity of one Party from the jurisdiction of the courts of another Party. It specifies the cases in which a Party may not claim immunity before foreign courts. This applies when the Party in question accepts the jurisdiction of the court and in proceedings relating to work contracts,

206 207

Jurisdictional Immunities of the State , Germany v. Italy, Greece Intervening, Judgment dated 3 February, 2012. European Convention on State Immunity ,CETS No.: 074

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participation in a company or association, industrial, commercial or financial activities; rights over immovable property in the State where the court is situated; redress for injury to persons or damage to property.

The Convention also specifies the rules concerning the proceedings against a Party in a court of another Party and the effects of judgments that Parties agreed to give them. The Additional Protocol completes the Convention by the addition of provisions concerning a European procedure for the settlement of disputes. b) The Foreign Sovereignties Immunity Act, 1976208 The Foreign Sovereignties Immunity Act also known as FISA was enacted by the United States in 1976. The FSIA contains a comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state or its political subdivisions, agencies or instrumentalities. The FSIA codifie[d], as a matter of federal law, the restrictive theory of sovereign immunity and transferred primary responsibility for immunity determinations from the Executive to the Judicial Branch. The FSIA mosaic contains the sole basis for obtaining jurisdiction over a foreign state in federal court. Thus, the FSIA must be applied by the District Courts in every action against a foreign sovereign, since subject matter jurisdiction in any such action depends on the existence of one of the specified exceptions to foreign sovereign immunity.209

Under the FSIA, foreign states are presumed to be immune from the jurisdiction of United States courts and from liability in United States lawsuits unless a statutory exception to liability applies. Whether or not foreign states are immune from jurisdiction and liability, the FSIA also affords foreign states certain protections including a more formalized service of process regime, additional time to respond to actions, the right of removal to federal court, the right to decision by a judge instead of a jury, and certain rights with respect to attachment and execution on property of the foreign state.

208 209

The Foreign Sovereignties Immunity Act, 90 STAT. 2891 Retrieved from http://www.hg.org/articles/article_1223.html, Last visited on 10 April, 2013.

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c) State Immunity Act, 1978210 The State Immunity Act was enacted in the United Kingdom in 1978 to ratify the European Convention on State Immunity. After the implementation of this act, the doctrine of absolute immunity was abolished. The Act set down the guidelines for the British Court to decide on matters of state immunity.

d) United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004211 The United Nations Convention on Jurisdictional Immunities of States and Their Property was adopted by the General Assembly on 2 December 2004. The Convention was open for signature by all States until 17 January 2007 and would have entered into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession. As of 14 June 2010, there are 28 signatories to the Convention and 10 instruments of ratification have been deposited.

The Convention consists of a preamble together with 33 articles divided into six parts (introduction, general principles, proceedings in which State immunity cannot be invoked, State immunity from measures of constraint in connection with proceedings before a court, miscellaneous provisions, and final clauses). A number of understandings relating to specific provisions of the Convention are laid down in an annex which forms an integral part.

The implementation of the United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004 would aid a great deal in ensuring uniform international state practice in a continuously changing world where domestic courts continually try to extend their jurisdiction causing flutters across the globe.

State Immunity Act, 1978, CHAPTER 33, Retrieved from http://www.legislation.gov.uk/ukpga/1978/33 on 14 April, 2012 211United Nations Convention on Jurisdictional Immunities of States and Their Property, 2004, Official Records of the General Assembly, Fifty-Ninth Session, Supplement No. 49 (A/59/49), Doc. A/59/508
210

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Conclusion
The issue of Sovereign immunity has evoked immense debate among scholars and jurists across the globe with conflicting decisions from numerous forums. However, of late the situation has streamlined to a great extent owing to the decision of the ICJ in the Jurisdictional Immunities. The debate regarding sovereign immunity would however continue to remain even in the future owing to new issues which continue to arise due to increased cross border interaction between people and organizations. The boundaries of sovereign immunity would need to be redrawn in the near future with the sudden surge in international disputes and recent orders like the one by the Supreme Court of India prohibiting the Italian Ambassador to leave the country212 raises new questions on the issue. In the near future, the eyes of the international law scholars and experts would be more on the domestic courts whose decisions would determine the status of sovereign immunity in times to come.

212

Retrieved from http://www.bbc.co.uk/news/world-asia-india-21781993, Last visited on 18 April, 2013 at 14:14 hrs.

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8. Right to Healthy Environment: in the Era of Globalization

By- Priya S. Dhanokar & Mahesh R. Halde213

Introduction
Human Rights are the basic, inherent and inalienable rights, which are very much essential in preserving dignity of human beings. These rights are most essential and basic for sustaining the stability and development of all the individuals across the world. Hence, a great emphasis has been attracted towards the protection and preservation of Human Rights at all the levels in the world. It is done through the medium of various international treaties, conventions and other instruments. These rights manifests themselves through different categories of rights like, civil and political rights, economic, social and cultural rights etc. Right to live in healthy environment is one of such rights. Health of human being is most important factor of human life. Right from birth, every human being desires to live in healthy environment. But due to urbanization, modernization and globalization human beings are now unable to enjoy this right of living in a pollution free environment to the fullest extent. As a matter of fact, for an industrialized society the use of sophisticated technologies in production of material required for the development of social amenities on one hand and improving the health standards as well as the quality of life on the other are very difficult tasks. As a result, pollution becomes an unavoidable hazard. Hence Right to Healthy Environment is now recognized globally as a concomitant right of Right to Development. Accordingly, most of the International Conventions like United Nations

Declaration of Human Rights, 1948 and Convent of Economic, Social and Cultural Rights, 1966 have recognized the right to healthy environment as a basic Human Right.214 Thus, the ultimate aim of every human society or association or Government is to develop human being in healthy environment. On the contrary, with the advent of globalization and the introduction of new technology, the need of protecting human beings from violation of their Human Rights is increasing. Accordingly many mechanisms are evolved at global, regional as well as national levels to protect and preserve these

213

Priya S. Dhanokar, Asst. Prof. in Law, DES's NF Law College, Pune

Mr. Mahesh R. Halde, Research Scholar

214

Article 12 of the United Nations Declaration of Human Right in 1948.

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rights. However the efficacy of such mechanisms has been questioned in the light of blatant human rights violations and disregard for basic human dignity in nearly all countries in one or the other form. On this backdrop, present research paper tries to through light on various issues relating to environment vis-a-vis development along with legal provisions and judicial response for the same.

Meaning and Definition of Environment:

Basically the word, 'environment' is derived from the French word, 'environner' which means 'to encircle' or 'to surround'.215 According to ancient Indian literature, the term, 'Environment' is known as, 'Paryavaran' which is combination of two words, 'Pari' near and 'Avaran' means covering. Thus, it means the covering which is near or surrounding the human beings. The word environment has been defined differently in different instruments and statutes . According to the Environment Protection Act, 1986 the word, 'Environment' includes water, air, land and the inter-relationship, which exists among and between water, air, land and human beings other living creatures, plants, microorganism and property.216 Thus the general meaning of the term environment is the condition or circumstances that surrounds an organism. There are various components of the Environment. i.e. biosphere, lithosphere, hydrosphere and atmosphere. All these components are getting badly damaged due to different developmental activities that are carried out due to increased industrialization and other developmental projects. The concept of Globalization though is necessary for development of human beings has many ill effects on the environment which are discussed as under.

Effect of Globalization on Environment:

Globalization is the system of interaction among the countries of the world in order to develop the global economy. Globalization refers to the integration of economics and societies all over the world. Thus, Globalization involves technological, economic, political, and cultural exchanges made possible largely by advances in communication, transportation, and infrastructure. Globalization has a positive impact on the Environment to some extent but there are still some crucial negative impacts of Globalization on the Environment. The main negative impact of Globalization on the Environment is increase in the quantity of industrial pollution. Besides this, there is overuse of natural resources due to increased industrial demands, damage to ecosystems
215 216

Dr. Amod S.Tilak, "Environmental Law", Snow White Publications Pvt. Ltd., First Edition,2009,P. 1. Section 3 of the Environment Protection Act, 1986.

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due to population growth, decrease in soil fertility due to excessive use of chemicals for more productivity and so on. In the same way, with the advent of industrialization extensive

deforestation has occurred world-wide which has also contributed in degrading the Environmental balance. Globalization also has another negative impact on the Environment in the form of 'global warming', which is due to emission of greenhouse gases. This is the result of increased

industrialization and over increasing use of fossil fuels in the developing world. Due to emission of such gasses, the temperature level has increased causing in melting of ice at polar regions. This has resulted in increase of sea levels which has an extensive impact on biodiversity and weather systems. This shows that, Globalization has many ill effects on the Environment as well as human beings.

Environment vis-a-vis Development- Sustainable Development

As a matter of fact, every individual has a Right to Development and while carrying out various developmental activities, environmental degradation is caused as a necessary evil. So there is a need to maintain a balance between these two contradictory phenomenon. As a result of this, the concept of Sustainable Development was evolved and is now has become well recognized and appreciated across the world. Sustainable Development is a balancing concept between development and environment. Sustainable Development can be defined as, the development that meets the needs of the present without compromising the ability of future generations to meet their own needs. Industries are of vital importance for the nations progress as they generate foreign exchange and provide employment but having regard to the pollution caused by it; the concept of Sustainable Development is of vital importance. There are two principles included in the concept of Sustainable Development. These are, Polluter Pays Principle and Precautionary Principle.

Polluter Pays Principle

This is one of the important principles covered under the concept of Sustainable Development. It involves remediation of damage caused to the environment by the polluter himself. Thus, the polluter is liable to pay the cost of individual sufferers as well as the cost of reversing the damage to the environment.

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According to this principle, it should be no answer on the part of such hazardous enterprise to say that, it had taken all reasonable care and that the harm occurred without any negligence on their part.

Precautionary Principle
This principle insists to observe precaution before the actual damage is caused to the environment. That is to take care before any act is done, which has possibility to damage the environment. Accordingly, the precautionary principle or precautionary approach states that if an action or policy has a suspected risk of causing harm to the public or to the environment, then the duty is imposed on that person to take necessary steps for protecting and preserving the environment. This principle implies that there is a social responsibility to protect the public from exposure to harm either to their health or to their environment Thus the concept of Sustainable Development protects the right to pollution free environment of future generations even in the era of globalization. Taking the basis of these concepts, various legislations have been enacted, different policies are framed in order to regulate and control all such developmental activities and in turn to protect and preserve the environment. Some of them are discussed below.

Right to Healthy Environment and Legislative Framework

All human beings depend on the environment in which we live. A safe, clean, healthy and sustainable environment is integral to the full enjoyment of a wide range of human rights, including the rights to life, health, food, water and sanitation. Hence enumerable laws has been framed at national as well as at international level for protecting, preserving and maintaining quality of the Environment including air, water, wild life etc. Present point tries to through light on few of such legal provisions as under.

International Level
Many International Conventions, Conferences are carried out in order to consider the measures for protection and preservation of human Environment. The ever attempt in this area is the Stockholm Conference, 1972. It was the first International Conference on human Environment, organized at Stockholm from June 5 to 14, 1972 at the initiation of United Nations Environmental Agency. The Conference called upon the Governments and people to exert common efforts for the preservation
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and improvement of Human Environment. The concept of Sustainable Development was propounded for the first time in this Conference itself, which seeks to maintain balance between Environment and development. It has also declared 5 th June as 'World Environment Day'. Next step in this regards is the WCED, 1987. 217 The World Commission on Environment and Development, 1987 (WCED) headed by Giro Harlen Bruntland proposed a set of legal principles for Sustainable Development and suggested for enactment of a global convention for the protection of Environment. Further, for the same purpose and for arresting further degradation of the Environment and to repair damage already done to it, in the year 1992, the Rio Earth Summit was convened at a global level. Maintenance of ecological balance, prevention and control of environmental pollution, preservation of our natural resources, disaster mitigation and sustainable development are the basic factors of the "Earth Charter", which is also called the "Rio Declaration". 218 Besides, there are many International Conventions, which seek to provide Environmental protection measures.219 Thus, International treaties, Conventions, Conferences and Protocols resulted in regulatory legislations to protect the environment in several countries for framing policies as well as to protect and improve Environment, preventing pollution, punishing environmental crimes, and for compensating the persons affected by breach of protective provisions.

National level:
a. Constitutional provisions: The Constitution of India, which is the supreme law of land seeks to protect the right to health of people and pollution free environment through its various provisions as follows: 1. Fundamental rights:

Fundamental rights are the basic rights of people. Right to healthy Environment is one of them. In fact this right is not expressly conferred by the Constitution of India but is Implied interpreted as one of the dimensions of Right to Life as provided under Article 21. Healthy environment is the basic need of individuals for living life with human dignity. As per the broad view taken by the

217 218

World Commission on Environment and Development, Our Common Future, 1987 Rio Declaration on Environment and Development, 31 ILM 874, 1992. 219 For Example, The Convention on International Trade in Endangered Fauna and Flora, 1973, The United Nations Convention on the Law of Sea, 1984 etc.

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Supreme Court of India in its various decisions,220 Right to Healthy environment is directly related with right to life and liberty under Article 21 of the Constitution of India. Hence, the justifiability of right to healthy environment is based on right to life and personal liberty. This view of the Supreme Court of India is also reflected in the decision of Chameli Singh vs. State of U.P221 In this case, it has been held that right to life is not ensured by meeting only the animal existence, it is secured only when the essential needs of man including food, water, shelter, decent environment, education etc. are fulfilled. Beside this, Article 21 also provides right to pollution free environment as given in decision Subhash Kumar vs. state of Bihar222 in this case, it was held that PIL is maintainable for ensuring enjoyment of pollution free water and air, which is included in right to life. 2. Directive Principles of the State Policy: Directive Principle of State Policy under Part IV of the Constitution of India impose obligation on the State to protect the health of people and also has imposed the fundamental duties on the State to protect Environment. 223 . These provisions act as guidance that State should fellow in achieving certain standards of living for its citizens. Accordingly, Article 48-A added by the 42 nd Amendment Act, 1976 requires the State to take steps to protect and improve the Environment and to safeguard the forests and wild life of the country. Besides this, Article 39(e) provides for duty of the State in protection of the health of people and to prevention of their exploitation by entering into avocations unsuited to their age and strength due to economic necessity. While, Article 42 directs the State to make provisions for securing just human conditions for life and for maternity relief at work places and Article 47 of the Constitution of India impose the duty on the State to raise the standard of living and health of public. In the decision of the M.C Mehta vs. Union of India,224 Supreme Court held that these Directive Principles of State Policy individually and collectively impose a duty on the State to create condition to improve the general health level of people in the country and to protect natural Environment.

220

See Re Noise Pollution Case AIR 2005 SC 3136. AIR 1996 SC 549.

221
222

AIR 2002 SC 356. 223 See Intellectual Forum Tirupati v. State of A P. AIR 2006 SC 1350. 224 AIR 1991 SC 420

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3.

Fundamental Duties:

Article 51-A (g) of the Constitution of India provides a Fundamental Duty for citizens of India for the protection of Environment. In the decision of Intellectual Forum, Tirupathi v. State of Andhra Pradesh, 225 Supreme Court held that, under Articles 21 and 51-A it is the Constitutional obligation of the Government to protect and preserve the Environment. In this way the Constitution of India has made number of provisions for protecting Right to Healthy Environment. b. Legislative provisions: Besides Constitutional provisions, there is a bulk of Environmental Legislations in India. Some of the important legislations are pointed out hereunder. The most important enactment in the field of protection of Environment is, the Protection of Environment Act, 1986. Many provisions like definitions of Environment, pollution, pollutants etc., functions of Government to protect the Environment, offences and penalties in case of violation of Right to Healthy Environment are discussed under this Act. It also provides for higher penalty in case of continuous violation. Besides this, there is the Prevention and Control of Water Pollution Act, 1974 and Prevention and control of Air Pollution Act, 1986. These are the special legislations enacted to control air as well as water pollution caused mainly due to developmental activities and industrialization carried out in the era of Globalization. These acts exert emphasis on the setting up of precautionary and safety equipments before establishment of any new industry or continuation of the working of old ones. These provisions recognize the need of preventing the Environmental pollution instead of taking remedial measures after having the Environment polluted. In addition to this, there are other enactments relating to protection of Environment. For instance, the Public Liabilities Insurance Act, 1991, which enables the District Collector to determine immediate relief to the affected persons; the National Environmental Tribunal Act, 1995, which creates tribunals to enforce the absolute liability principle; Public Liability Insurance Act, 1991, which has made it mandatory for the occupiers of hazardous activities to provide minimum relief

225

AIR 2006 SC 1350

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to the victims. Thus these legislations if implemented properly, will help in protection and promotion of Right to Healthy Environment more effectively.

Environmental Protection and Judicial Activism

With reference to context of role of Indian Judiciary in protecting and preserving the environment it is revealed that, the Supreme Court of India has tried to maintain the balance between the process of development and the protection of environment, which can be witnessed through many of its judgments. A substantial contribution of the higher judiciary is provided by the expanded interpretation of Article 21 of the Constitution of India which provides that, right to life includes right to live in safe and healthy environment. 226 In a Doon Valley case, 227 the Supreme Court of India has read the right to clean environment as a part of right to life vide Article 21 of the Constitution of India and held that the permanent assets of mankind cannot be allowed to be exhausted in the name of globalization and industrialization. Further, in its another landmark judgment, Shriram Foods and Fertilizers Industries v. Union of India228 which is popularly known as 'Oleum Gas Leak Case', the Supreme Court of India has articulated a new standard of absolute liability to prevent denial of right to healthy environment in the hands of the industrialists engaged in hazardous activities. According to this principle, the industry would be absolutely liable for the loss caused to the health of people as well as for the environmental damage done by the hazardous and inherently dangerous activities carried on by it. Yet, another instance of judicial attempt in maintaining the balance between need of industrialization on one side and protection of environmental degradation on the other is revealed in Vellore Citizen's Welfare Forum v. Union of India. 229 In this case, the apex court held that, such industries though are of vital importance to the country's development, they cannot be allowed to destroy the ecology, degrade the environment and pose a health hazard and thus cannot be permitted to continue their operation unless they setup pollution control devices. The court further

226 227

See M.C Mehta v. Union of India AIR 1987 SC 965. (1985) 2 SCC 431. 228 AIR 1987 SC 965. 229 (1996 ) 5 SCC 650.

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added that, such industries are of vital importance for the country's progress as they generate foreign exchange and provides employment avenues but having regard to pollution caused by them, principal of "Sustainable Development has to be adopted as a balancing concept between ecology and development. Thus, it is submitted that, the judiciary through its various verdicts has rightly imposed an absolute and non-delegable duty on enterprises engaged in Hazardous or Inherently Dangerous Activities posing a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas so as to ensure that no harm will result to anyone.

Conclusion
Globalization is important to every nation for its development. But due to globalization, large number of industries are developed and they use the petro-chemical products which increase the environment al pollution. However right to healthy environment is the basic human right of all people around the world. So, the era of globalization imposes the duty upon State, Citizen and Industrialists to protect and maintain the healthy environment. Accordingly, various Conventions, Conferences and Charters etc. have been framed at National and International levels so as to provide proper measure for protection and promotion of the environment. Judiciary has also played a vital role in recognizing and enforcing this right by adopting the new concepts like, Sustainable Development, Rule of Absolute Liability etc. In short it can be said that developmental activities and Environmental degradation are parallel to each other. On the one hand, for individual's development industrialization and globalization are important but on the other hand these activities cannot be carried out without compromising the right to healthy environment of individuals. It is not possible to root out environmental degradation completely. Hence the only remedy lies in adopting the concept of Sustainable Development and thereby attempting to minimize the environmental pollution. This is nothing but the Need of Time!

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9. Surrogacy: A Bane or Boon

By: Neha Bahl230

The gift of motherhood regrettably is not distributed evenly by God to every woman. The importance of fertility in human beings is relied on men and women, their fertility to produce children to carry on the family line, as life exists because of procreation. To celebrate this power of procreation many religions practice fertility rituals, where the power of procreation is honoured by worshipping fertility Gods such as Lord Shiva and Lord Kartikeya. In Greek Mythology, Eros was the primitive God of lust, love and intercourse and was worshipped as a fertility deity. Fertility rituals and fertility symbols such as Shiva Lingam, is the most powerful fertility symbol in Hinduism consists of the critical union of Shiv-Parvati, dominates the Hindu religious practices.231

Ideally, creature has empowered all living beings with the power of production or reproduction. But the destruction, deviation or extinction of this special feature of fertility is considered as a curse for the individual and for the entire family and because of known and unknown natural and scientific effects, this special feature can be found in a vegetative stage and the requirement is to get the solution of the problem specifically for human beings. Reproductive problems are not new rather common in all. Some are curable and some cannot be cured and this state of human existence is considered pathetic since long. Sometime men are found with reproductive problems and sometime women. For instance, during the epic age of Mahabharata, Pandu and Dhritarashtra were having such problems and Niyoga was the solution which was adopted, which may be considered as In Vitro 232-Fertilization today. It is also believed that Gandhari the wife of King Dhritarashtra conceived, but her pregnancy remained prolonged for nearly two years. At the end of this period as described by Bhagwan Vyasa, she delivered a mass of material that contained 101 normal cells which when put in a nutrient medium grew up full term as 100 male children the Kauravas and one female child, called Duhsheela. Same is the case with women such as Sarah who was found with problem in conceiving, her maid servant Hagar was laid with her husband Abraham to bear a child for the infertile Sarah, which may be called

Ms. Neha Bahl, LL.M. (NET), Ph.D. (Law) Research Scholar, Subharti Law College, Meerut http://vinayaghimire.hubpages.com/hub/fertility-symbols-and-fertility-rituals-in-hinduism; last visited on 20/09/2013; time 11:00 am (IST); place Meerut, Uttar Pradesh, India. 232 In-vitro means outside the living body and in an artificial environment.
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as surrogacy in todays scenario. This all may be considered as traditional prevalence of surrogacy in India. In fact these types of arrangements have been in existence since long.233

The inability to procreate is commonly considered a personal tragedy and a curse for the couple, creating an impact on the entire family and even the local community. Infertility refers to the biological inability of a person to contribute to conception. The World Health Organization has described infertility as the inability to conceive a child. A couple may be considered infertile if after two years of regular sexual intercourse, without contraception, the woman has not become pregnant.234 In most developing countries, women are blamed for infertility, resulting in the social stigma of childlessness, even if they are not the cause for the same. This may be because in many cultures, womanhood is defined through motherhood and women usually carry the blame for the couples inability to conceive. Childless women are frequently stigmatized, resulting in isolation, neglect, domestic violence and polygamy. On the other hand, not only female infertility, but also the majority of male infertility in developing countries is caused by infections of the male genitourinary tract. It is believed that more than 80 million couples suffer from infertility worldwide, the majority being the residents of developing countries as compared to the Western societies. This may be because developing countries encounter lack of facilities at all levels of health care. Developing countries have a large reservoir of infertility problems, of which bilateral tubal occlusion is the most important, which is caused due to previous pelvic infection, a condition that is potentially treatable through assisted reproductive technologies. It is mainly caused by sexually transmitted diseases, postnatal or post-abortal infections and pelvic tuberculosis etc.

Historically the first child born through such arrangement was Ishmael. The second and the third known births occurred in Sumer-Mesopotamia in the middle of the 18th century B.C. in the family of Jacob, Abrahams grandson. This problem was also experienced in 1790 although most of the world probably did not know that this process was in existence. The first case of surrogacy/artificial insemination occurred in United States usin g a donors sperm. One can also find the mention of births by such arrangement in the regulations of the famous Code of Hammurabi, which dates back to about 1772 B.C. The child born from such a relationship assumed the throne only if there were no other more legitimate nominees. Such relationship may be termed as traditional surrogacy which was common in ancient Greece, Egypt and Rome. An example of infertility from Quran which can be quoted is that of Zakariya (pbuh 233) and his wife Ishba. The Quran provides that everyone belongs to Allah. He creates what he desires. He bestows male or female offspring on females or sometimes renders them barren. The Prophet has encouraged Muslim men to marry those who are fertile. If for some reason the first wife is infertile then the option to avail the choice of polygyny is one that is encouraged in Islam. 234 http://www.who.int/topics/infertility/en/; last visited on 21/09/2013; time 09:00 am (IST); place Meerut, Uttar Pradesh, India.
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Traditionally, the surrogate mother was usually a close relative who was looked after and taken care of as there was no financial obligation involved in the process. However, with the times changing and relatives not readily available to suffer the discomfort and pain involved, the services of surrogate mothers have assumed pecuniary overtones. The problem of infertility is a serious one in our society and the social stigma involved includes abandoning of wives. Thus, surrogacy is being resorted to widely as a solution to infertility because one or both of the partners may suffer from infertility problems. The infertile couples who are not able to conceive a child of their own take the help of reproductive technologies like artificial insemination, in-vitro fertilization/testtube baby and surrogacy, which have become a ray of hope for these couples. These reproductive technologies are treated as a remedy for many problems and offer a wide range of choices, which have reached new dimensions in this era of globalization.

The surrogacy arrangement is made between a couple, where either of whom is infertile and a surrogate mother. In such an arrangement, the surrogate mother agrees to be artificially inseminated with the male sperm, to bear a child and to give up all her parental rights and to transfer physical custody of the child to the commissioning couple on the birth of the child. Thus, the use of human surrogate mothers who receive fertilized ova and carry it until birth is now a reality and is being practiced globally. The major reason is the urge to have ones own flesh and blood in their progeny. The best example of the same is that of Kanupriya alias Durga, the worlds second and Indias first IVF baby, who was born in Kolkata on 3rd October, 1978 about two months after the worlds first IVF child was born in Great Britain on 25th June, 1978. America celebrated the birth of its first IVF-conceived baby Miss Elizabeth Carr born in Norfolk, Virginia on December 28, 1981 and since then surrogacy has become one of the mainstream options for childless couples across the world, who have a strong desire to have a child of their own but do not desire to adopt one. Such couples resort to surrogacy because of medical conditions that prevent natural childbirth. Such conditions include infertility, danger of the pregnancy harming the woman or the child etc.

But now-a-days in the practice of surrogacy, one new practice has evolved where financial attraction or gain is shown to the surrogate and in spite of her unselfish concerns she becomes interested in monetary gains, even sometimes at the cost of life and health of the reproductive subject. The surrogate mother receives financial reward for her pregnancy on the relinquishment
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of the child which means business of body or body related parts or products. Surrogacy arrangement has attracted the poverty stricken population of India because of economic necessity. The absence of specific laws prohibiting commercial surrogacy is also posing a great difficulty. The desire to earn a livelihood through surrogacy arrangements have led to the deterioration of the health of the surrogate mother, which is of utmost importance and one cannot visualize its long term consequences. The repeated pregnancies can even affect the cardio-vascular health of the poor illiterate woman, which she may not know. Her health may be satisfactory during the pregnancy because of the money and care provided by the commissioning parents, but her health may not be that good in future. Thus, the human right to health in a surrogacy arrangement involves the question of health of the surrogate mother, the surrogate child, the genetic parents and the commissioning parents. In India, women are generally not as healthy as they are in developed countries due to the poor nutrition levels since childhood. Thus, the talk about their right to health, human rights or reproductive rights becomes meaningless. It seems that the remedy of surrogacy to the basic problem of infertility is generating new problems, which seems sometime more complicated and risky than the original problem in itself.

Surrogacy has become a very knotty issue in India due to non-enactment of laws on the subject. Anand town in State of Gujarat is a hub of surrogate mothers. Not only this, Indore city in Madhya Pradesh, Pune, Mumbai, Delhi, Kolkata and Thiruvananthapuram are also emerging as surrogate centres because many childless foreigners from all over the world are flocking here due to low cost, less restrictive laws, lack of regulation of ART clinics and easy availability of poor Indian surrogate mothers. Generally, surrogacy arrangements are drawn up in a random fashion and can be exploitative especially since surrogates are mostly from weaker socio-economic sections of the society. It is essential that the practice of surrogacy should be legally regulated to prevent victimization of both the surrogate and intended commissioning parents. This research article tends to highlight that India is in an urgent need of comprehensive legislations on the subject which can regulate and can have a check on the use and misuse of surrogacy arrangements. It is apparent that surrogacy is increasing as an industry in India and many clinics are providing these services to foreign couples and also to Bollywood heros and heroines who do not want to compromise their career which is likely to be jeopardized due to maturity and de-shaping of the body of the female and they find it easier to give their eggs and sperms and hire
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a womb on rent. These clinics work as commission agents in between the purchaser and donor/seller of the sperms or eggs. It is high time for the Indian Parliament to study in details the national and international perspectives on surrogacy and to understand the root cause of the problem and provide a comprehensive legislation including the rules and regulations for combating and controlling the use and misuse of surrogacy practices in India. The focus needs to be given on legalizing altruistic surrogacy and at the same time prohibiting commercial one. It is submitted that it is advisable to protect the society from onslaught of capitalism over Asian poverty and stop the exploitation of poor women being used as machines. The researcher has also conducted a thorough analysis of the guidelines provided by the Indian Council of Medical Research (ICMR), the draft Assisted Reproductive Technology (Regulation) Bill and Rules 2008 prepared by the Government of India (which is yet to be passed by the Indian Parliament), the recommendations of the Law Commission of India235, all point out that surrogacy arrangement shall continue to be governed by contract amongst parties, which shall contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s),etc. However, such an arrangement should not be for commercial purposes. The surrogacy arrangement should also provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child. In 2008, the Supreme Court of India in Baby Manjis case236 has also held that commercial surrogacy is permitted in India with a direction to the legislature to pass an appropriate law governing surrogacy in India and thereafter, giving due regard to the directions of the apex court,

228th Report of Law Commission of India on Need for Legislation to Regulate Assisted Reproductive Technology Clinics as well as Rights and Obligations of Parties to a Surrogacy ; http://lawcommissionofindia.nic.in/reports/report228.pdf; last visited on 25/09/2013; time 3:10 pm (IST); place Meerut, Uttar Pradesh, India. 236 AIR 2009 SC 84.
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the Government of India has presented Artificial Reproductive Technology (Regulation) Bill, 2008 in the Parliament, which is still pending and is expected to come in force very soon. Thus, a number of issues relating to technological, medical, physical, moral, ethical, emotional, biological, and socio-legal etc. are involved in a surrogacy arrangement. These aspects need a scientific investigation in an interdisciplinary approach. Though, artificial insemination or non-coital procreation is against the order of the nature, but it is a boon to the childless parents to satisfy their desire of parentage with the help of technology. The irony is that, certain unfair practices are accompanying surrogacy resulting in its misuse, which needs to be curbed and regulated through the enactment of proper laws in India.

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