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April 2014

A Students’ Union Publication








CAMPUS LAW CENTRE
STUDENT LAW REVIEW
Volume II Issue I

ISSN 2321-0028


CAMPUS LAW CENTRE
STUDENT LAW REVIEW


Volume II Issue I April 2014

Editorial Board 2013-2014


Patron-in-Chief Editor-in-Chief
Prof. (Dr.) Usha Tandon Sumedha Sarkar




Senior Editors
Vihan Dang Maansi Verma Kriti Saran




Editors
Ishita Bisht Anandita Sharma
Ajay Justice Shaw Rituparna Mukhuty








The Campus Law Centre Student Law Review (CLCSLR) seeks to publish and provide
avenues for student research and scholarship.
Published by the Students’ Union, Campus Law Centre, Faculty of Law, University of
Delhi.
No reproduction, storage or transmission except via fair dealing of any part of this
publication may take place without prior written permission of the Editorial Board of the
Campus Law Centre Student Law Review.
Please note that though every effort has been made to ensure that the information in
CLCSLR is accurate and appropriately cited/referenced, neither the Editorial Board nor
the Students’ Union shall be held liable or responsible in any manner whatsoever for any
consequences resulting from inaccuracies, errors or views taken by authors in the Journal.
The views expressed by the authors are not necessarily those of the Editorial Board or of
any sponsors of Campus Law Centre Student Law Review.

©Campus Law Centre Student Law Review 2014. All rights reserved.

ISSN 2321 – 0028 (Print)














CAMPUS LAW CENTRE
STUDENT LAW REVIEW


Volume II Issue I April 2014


CONTENTS
Foreword

Editorial

Acknowledgments

Articles

1 Too Young, Too Wild and Too Free? Getting the Juvenile 1
Justice Act Together
Arindrajit Basu & Ayani Srivastava

2 The Greening of Trade Jurisprudence: A Study on the Conflict 19
and Reconciliation of Trade and Environment
Nivedita Raju

3 Right to Information: Shredding the Curtain of Secrecy around 37
Political Parties
Tanya Choudhary

4 Heralding Corporate Governance in Banks in India: A Study of 55
Banking Laws (Amendment) Act, 2012 and BASEL III Accord
Anish Jaipuriar

5 Towards the Electronic Police State: Addressing the Concerns 73
Shamba Dey

6 Establishing the Jurisprudence of Instant Customary International 87
Law and its Contemporaneous Relevance
Sarthak Malhotra & Sujoy Sur

Legislative Comments

1 A Critical Overview of the Assistive Reproductive Technologies 103
(Regulations) Bill, 2010
Sriparna Dutta Choudhury












A tribute to

Professor Lotika Sarkar

(1923 – 2013)

For lessons within and beyond the classroom

2014 CLCSLR VOL.2 ISSUE 1



FOREWORD
I am pleased to learn that the second volume of the Campus Law
Centre Student Law Review is ready for its readers. In its maiden publication
in 2013, it became the first ever student-edited and peer reviewed publication
of the Campus Law Centre, Faculty of Law (University of Delhi). In its
second year of publication, this initiative by the Students’ Union is taken
forward with renewed vigour.
The Law Review has two primary goals. First, it provides a forum for
students to discuss, debate and deliberate on contemporary legal issues.
Second, the Review seeks to encourage writing, editing and research among
the Campus Law Centre student community. It will be an annual, peer
reviewed publication with a student Editorial Board committed to promoting
legal scholarship.
Campus Law Centre has an outstanding tradition of producing some
of India’s most erudite legal minds and it is this culture that needs to be
preserved and nurtured by creating opportunities for law students who will
eventually take up a career at the Bar or the Bench.
The second volume of the CLCSLR covers multidisciplinary issues
such as the jurisprudence of punishments for juvenile delinquents,
environmental considerations within International Trade relations, BASEL
and domestic banking laws, applicability of RTI on political parties, amongst
others.
I would like to congratulate the Editorial Board for this
commendable effort and look forward to the many contributions it is sure to
make to legal discourse in the future.

Professor Usha Tandon
Professor in-Charge
Campus Law Centre
April 2014
New Delhi

2014 CLCSLR VOL.2 ISSUE 1



EDITORIAL
Academic discourse and the exchange of ideas among the student
community form the bedrock of progress of any discipline, the law being no
exception to this. The Campus Law Centre Student Law Review is an
initiative to encourage such legal scholarship. Now in its second year of
publication, the Review strives to fulfil the objectives with which it was
established in 2012. It aspires to provide a platform to voice those opinions
and debates that emerge from the corridors and classrooms of law schools,
cutting across disciplines, interests and expertise within the student
community. By establishing a dialogue between the Board and the author,
the Review aims to act as a catalyst facilitating capacity building among those
who, through research and study, endeavour to take the discipline forward,
the Editorial Board being as much a part of the learning process as the
contributors to the Review.
Each year presents its own share of debatable legal issues, some fresh
off the block, and some that refuse to go away. Whichever way one looks at
it, this pushes one to think and test new ideas. Each of the submissions this
year reinforces this belief by seeking to engage with and innovatively
deliberate on fundamental legal questions that have arisen over the last few
years. After an invigorating and intensive review cycle, bolstered by a team of
meticulous peer reviewers, seven original manuscripts form the content of
the second volume.
This volume opens with an examination of the Juvenile Justice Act,
2000. In the aftermath of the Delhi Gang Rape Case, a public debate ensued
on the quantum of punishment to be awarded to the accused juvenile,
centring on the requirement of proportionality between crime and
punishment. Arindrajit Basu and Ayani Srivastava trace this critical debate,
while advocating a need to balance the retributive and rehabilitative objects
of punishing juveniles.
Trade related issues and environmental questions have not
conventionally been perceived to be interrelated. In the second article,
Nivedita Raju shows through case law how the objectives of these two
seemingly diverging fields can be reconciled. The paper goes on to establish
an inclination of the international community to not choose one at the cost
of the other, thereby promoting a healthy dialogue between free trade
proponents and those espousing environmental concerns.
2014 CLCSLR VOL.2 ISSUE 1



The year leading up to the 16
th
General Elections saw a great clamour
for increased accountability and transparency in politics. In the midst of this,
the judgment of Subhash Chandra Aggrawal and Anr. v. Indian National Congress
and Ors brings political parties under the scope of the Right to Information
Act, 2005. In the third paper of the Review, Tanya Choudhary examines the
reasoning behind the judgment, its possible implications and proffers a
meeting ground between civil society and political parties through a
comparative study of parallel right to information legislations in other
nations.
Next, Anish Jaipuriar examines the changes the Basel III Accord
brings in the context of corporate governance in Indian banks. Identifying
the question of whether such change would be for the good or the bad, the
article delves into the problems in adoption of Basel III and suggests
measures that can ensure a more transparent yet strong banking structure to
support a stable financial system in India.
The fifth article recognises the ability of the government to pre-empt
and protect the public through far reaching surveillance operations is often
seen to be in direct conflict with the exalted right to privacy of the very same
public. Shamba Dey examines the various aspects of surveillance operations
undertaken by the state, while arguing that the traditional perceptions of
privacy and governmental tracking must undergo a change in light of the
imminent need to safeguard against unprecedented adversaries.
Customary International Law, as a doctrine, has been as severely
criticised as it has been praised. It has been appreciated for filing a void
where codified international law fell short but at the same time, has been
dismissed for being traditionalistic, rigid and ambiguous in its application. In
the sixth paper of the Review, Sarthak Malhotra and Sujoy Sur argue that
Instant Customary law presents a more efficient alternative which focuses on
the psychological element of state intent i.e. opinion juris rather than insisting
on long practice for a custom to be formed. They contend, through
contemporary examples, that this doctrine is more systemised and more
suited for application in today’s fast paced world.
The Review culminates with a legislative comment on the Assisted
Reproductive Technologies (Regulation) Bill, 2010. The advent of surrogacy
as a viable answer to the plight of couples unable to procreate, has sparked a
debate between the rights of the commissioning parents and the surrogate
2014 CLCSLR VOL.2 ISSUE 1



mother. Sriparna Dutta Choudhury examines the Bill in light of the rights of
parties, arguing that the provisions of the Bill fail to sufficiently protect the
rights of the surrogate.
On a final note, the Editorial Board sincerely hopes that the second
volume of the Campus Law Centre Student Law Review proves to be an
engaging read and encourages students to debate, question and deliberate on
principles of the Law.

Sumedha Sarkar, Vihan Dang, Maansi Verma, Kriti Saran, Anandita
Sharma, Ajay Justice Shaw, Ishita Bisht and Rituparna Mukhuty.
New Delhi
April 2014






.










2014 CLCSLR VOL.2 ISSUE 1



ACKNOWLEDGMENTS
The Editorial Board would like to thank our Advisory Board, Mr.
Ajitesh Kir, Mr. Siddharth Peter de Souza, Ms. Anu Choudhry and Mr. Udit
Rastogi for their support and encouragement.
The Board would like to express its gratitude to Mr. Rohit Rathi, Mr.
Brian Tronic, Mr. Dilpreet Singh, Mr. Raja Bagga, Ms. Jeny Shaw, Mr.
Surendra Kumar, Ms. Chinmayi Krishnan, Ms. Aamna Hasan, Ms. Samira
Varanasi, Ms. Yukti Choudhary and Mr. Aniruddha Rajput whose exhaustive
comments and invaluable insights played a pivotal part in the review process.
Finally, we would also like to thank Mr. Gupta of 3A Graphics for helping
with and printing the final manuscript.











1
TOO YOUNG, TOO WILD AND TOO FREE?
GETTING THE JUVENILE JUSTICE ACT TOGETHER
Arindrajit Basu & Ayani Srivastava
*

Can any society or legislative regime principally impose a lenient punishment on a murderer or rapist simply
on account of his age, regardless of the social harm he intended and was capable of causing? In light of recent
developments in India with respect to various criminal occurrences involving juveniles, who were spared exposure to the
punishment merited by their crime, this paper seeks to establish that the answer to the above question lies in the
negative. Juveniles in India have been conferred a ‘special status’, etched in legal principles and scientific research. This
status has been recognised by the law in the form of a separate criminal justice system for juveniles. The authors do not
advocate doing away with this system. Yet, in order to balance out the reformative and retributive aspects of any
criminal justice system, this paper advocates certain amendments to the Juvenile Justice Act, 2000, which provides for
a maximum punishment of three years in a remand home regardless of the degree of harm intended and/or caused. The
authors have compared the evolution of the Indian juvenile justice system with legislative regimes from other
jurisdictions, and have suggested incorporation of some provisions to the Indian system, having factored in the cost to
society, as well as the right of juveniles to remain ‘young, wild and free’.
I. INTRODUCTION
As Karen left the public health building in Illinois for a quick visit to the washroom, she
could not possibly have fathomed the monstrosity of the events that were about to unfold. She was
raped at knifepoint by a seventeen year-old.
1
Neither could Ronnie-Green Jr., who walked out of his
house onto the streets of Pontiac, Michigan and was summarily executed by an 11 year old who was
using a 0.22 caliber-rifle.
2
Nor could the 23 year old physiotherapy intern in New Delhi, as she
boarded a moving bus, where she would be brutally violated and fatally assaulted by five men, one
of whom was 17 and a half years old.
3

The tragic link between the three cases lies in the fact that the perpetrators managed to
evade the punishment that their acts merited. In Karen’s case, the accused, who had been a repeat
offender in various burglary cases, plead guilty on a few counts of burglary, following which the rape
charge was dropped.
4
Attempts made by Karen and her family to re-open the case only resulted in
the criminal using his youthful offender status to obtain a lenient punishment.
5
Nathaniel Abraham,
who was responsible for the brutal murder of Ronnie Green was sentenced to seven years in a
rehabilitation home
6
while the seventeen and a half year old on the bus in Delhi was sentenced only

*
II
nd
year, B.A. LL. B., West Bengal National University of Juridical Sciences.
1
Daniel W Van Ness, Crime and Its Victims: What Can We Do?, DOWNERS GROVE, IL; INTERVARSITY PRESS 23-24
(1986).
2
Keith Bradsher, Boy Who Killed at 11 Is Convicted of Murder as an Adult, NY Times, Nov 7, 1999.
3
PTI, Delhi Gang Rape: Chronology of Events, The Hindu, Aug 31, 2013.
4
Supra note 1.
5
Id.
6
Keith Bradher, Boy Who Killed Gets 7 Years, NY Times, Jan 14, 2000.
2
to three years in a similar detention facility as per the provisions of the Juvenile Justice (Care and
Protection of Children) Act, 2000 (hereinafter ‘the Act’).
The first two cases led to a huge public outcry spearheaded by the families of the victims,
who felt that they had been wronged by the State. This led to a paradigm shift in the laws of their
respective states, which included provisions to deal with juveniles, who commit crimes of an
exceptionally heinous nature, provisions that are yet to be incorporated into the Juvenile Justice Act,
2000 in India.
7
As will be established throughout the rest of this paper, the Indian system is grossly
inadequate in its current state to account for such juveniles, thereby obstructing the course of justice,
superseding the rights of the victim and diluting the potency of the crime. With strong public
sentiment prevailing against such heinous offenders
8
, the authors argue that the system is at a
watershed and it is time the legislature sought to plug such loopholes, not by abolishing the system
as a whole or by denying children their special status but by making certain amendments to the
current law.
The authors attempt to establish the above-mentioned hypothesis in the following order.
Part II of this paper summarises the various international covenants on child rights that have shaped
the framing of separate laws for juveniles in India. While framing any recommendations, such
international covenants must be considered, something this paper does in due course. Part III traces
the evolution of juvenile justice legislation in India. Part IV discusses and delineates the evolution of
special acts in legislative regimes that may serve as appropriate models for the Indian legislature. Part
V elucidates the role of the significance of the victim in the sentencing calculus and the extent of
harm suffered by the victim of a criminal act in the sentencing process, and thereby lays the
groundwork for this paper’s recommendations, which lie in the separation of offences on the basis
of intended social harm. Part VI rebuts the argument that juveniles lack agency to form the requisite
intention to commit an offence, by considering and analysing the latest developments in the field of
neuroscience with respect to the functioning of the adolescent mind. Part VII brings about the
various recommendations—which can be categorised into two main courses of action. The first is
an automatic legislative transfer of offences such as rape and homicide, where the juvenile, if
convicted, is automatically punished as an adult without the judge applying his discretion. The
second is the conferring of a certain amount of discretion on the judiciary, after adhering to pre-
decided guidelines to impose punishment under the Indian Penal Code instead of an alleviated one
under the Act.
This paper does not seek to explore the ramifications of its recommendations, in terms of its
deterrent effect on future juvenile perpetrators and hence has not analysed statistics with respect to
juvenile crime in the country. All the authors seek to do is to apply theoretical legal and social
principles in an attempt to balance out the rehabilitative and retributive aspects of the juvenile justice
system without delving into the institutional framework through which the proposed amendments
may be implemented.

7
See also Aparna Viswanathan, Balancing the Juvenile Act, The Hindu, Sep 9, 2013.
8
Aditya Kalra, Arnika Thakur, Delhi Gang Rape Verdict: Reactions from People on the Street, REUTERS, (Sep 10, 2013) available
at http://blogs.reuters.com/indfia/2013/09/10/delhi-gang-rape-verdict-reactions-from-people-on-the-street
3
II. A SUMMARY OF INTERNATIONAL JURISPRUDENCE ON
CHILD RIGHTS
The first international document that reflected the growing concerns of the global
community regarding the imperative need to secure the well being of children was the Geneva
Declaration of 1924, which advocated that nations must strive to ensure that children receive the
basic necessities of life and are free from exploitation. The United Nations Declaration on the
Rights of the Child, 1989
9
defines a ‘child’ as any individual under the age of eighteen.
10
India has
signed and ratified this Declaration.
11
The Declaration recognises the vulnerable status of children in
society owing to both their physical and mental immaturity, endorses special legal protection for
them and propagates the notion that any legislation must account for the best interests of the child.
12

The minimum requirements of a juvenile justice system were recognised by the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (hereinafter ‘The
Beijing Rules’) in 1985.
13
These rules advocate the setting up of a free, fair and efficient juvenile
justice system in all countries in order to protect the special status of the child. Regarding the
Minimum Age of Criminal Responsibility (MACR), the Beijing Rules state that this should be set as
high as possible, in line with the guidelines given by the United Nations, which account for the
socio-cultural differences in each nation and it is imperative that the offender, if convicted, must be
able to understand, by virtue of his ‘individual powers of discernment’, the anti-social ramifications
of his behaviour.
14
Furthermore, the Beijing Rules correctly identify two broad aims of juvenile
justice. The first is obviously the well-being of the juvenile, which would include the provision of
ample opportunities for reformation, if any exist and the second is the ‘principle of proportionality’,
which endorses the notion that punishment should be proportional to the gravity of the crime
perpetrated as well as the personal circumstances of the juvenile. These rules do not state that the
juvenile offender cannot be punished under any circumstances but such punishment can, under no
circumstances, be greater than that meted out to an adult offender committing a similar crime.
15

The final developments in international jurisprudence, which have impacted the evolution of
Juvenile Justice in our nation, are the United Nations Guidelines for the Prevention of Juvenile
Delinquency (hereinafter ‘The Riyadh Guidelines’)
16
and the United Nations Rules for the Protection

9
United Nations Declaration on the Rights of the Child, November 20, 1959 GA res. 1386 (XIV), 14 U.N. GAOR
Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959).
10
Supra note 7, Article 1.
11
Jyoti Rao, A History of Child Rights in India (Dec 31, 2007), available at http://www.unicef.org/india/children_3220.htm
12
Supra note 7, Article 2.
13
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29, 1985, UN GAOR
A/RES/40/33.
14
“In those legal systems recognising the concept of the age of criminal responsibility for juveniles, the beginning of
that age shall not be fixed at too low an age level, bearing in mind the facts of emotional, mental and intellectual
maturity”, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Rule 4, UN GAOR
A/RES/40/33 (Nov 29, 1985).
15
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Nov 29, 1985, Rule 5, UN
GAOR A/RES/40/33.
16
UN GAOR A/RES/45/112, (Dec 14, 1990).
4
of Individuals Deprived of their Liberty (hereinafter ‘The Havana Declaration’)
17
. The Riyadh
Guidelines build on the previously passed declarations on the rights of the juvenile offenders, and
explicitly call for socio-legal safeguards from social stigma that may further damage the personalities
and futures of juvenile offenders. The guidelines recommend certain measures that the State may
impose to ensure their holistic well being. It also states that juveniles should not be punished for
crimes that do not cause excessive social harm. Apart from proposing extensive measures on the
proper administration of juvenile detention facilities, the Havana Declaration proposes that the
deprivation of the liberty of a juvenile by judicial means such as imprisonment should only be used
as a last resort, in circumstances where such liberty poses an imminent threat to public safety.
It is clear that while international law recognises the special status of the juvenile offenders
and the need for the enactment of a legislation to protect such offenders, it also implicitly accounts
for cases to which such protection cannot be extended (albeit they may be exceptions) but indicates
that the special status should only be revoked as a measure of last resort.
By incorporating these principles of international law into domestic jurisprudence, the
Indian Constitution allows for special laws to be enacted in favour of women and children through
Article 15(3), which is the provision from where the Act derives its constitutional legitimacy to
ensure that delinquents are reformed and re-integrated into society as productive individuals.
III. A BRIEF HISTORY OF LEGISLATIONS CONCERNING
JUVENILE DELINQUENTS IN INDIA
The Guardian and Wards Act, 1890 was the first instance of a legislation targeting children
in conflict with law.
18
This was followed by different states passing such acts specific to children like
the Madras Children Act, 1920, the Bengal Children, Act 1922, and the Bombay Children Act,
1924.
19

Over time, a need for a uniform countrywide legislation, as well as a separate judicial process
for children was felt and the abovementioned Acts gave way to the Children Act, 1960, which
distinguished between neglected children and juvenile delinquents by establishing the Child Welfare
Boards to handle cases concerning the former, and Children’s Courts for cases pertaining to the
latter.
20
The Children Act, 1960 further created a post of ‘probation officer’ whose job description
was to “advise and assist neglected or delinquent children”.
21


17
UN GAOR A/RES/45/113, Annex 45, UN GAOR Supp. (No. 49A) at 205, Dec 14, 1990, U.N. Doc. A/45/49
(1990).
18
This term has constantly been used to describe juvenile delinquents in India, most recently in the ‘Statement of
Purpose’ of the Juvenile Justice Act, 2000.
19
Representing Children Worldwide, How Children’s Voices are Heard in Child Protective Proceedings: India (February, 2006) available
at http://www.law.yale.edu/rcw/rcw/jurisdictions/assc/india/frontpage.htm.
20
Ibid.
21
Juvenile Justice Act: A Reformative Step for Children in Conflict with Law, SCAN INDIA (Feb 2, 2011) available at
http://www.scanindia.in/blog/2011/02/02/juvenile-justice-act-a-reformative-step-for-children-in-conflict-with-law/
5
This legislation was followed by the Juvenile Justice Act, 1986. As stated in its preamble, this
act sought to deal with ‘neglected’ children and ‘juvenile delinquents’
22
, laying down separate
mechanisms for the two categories.
23
This act was repealed by the Juvenile Justice Act, 2000, which
amounted to India’s acknowledgement to its international obligations as a signatory of the U.N.
Convention on the Rights of the Child of 1989, the Beijing Rules and the Havana Declaration.
24
The
Act was a far more comprehensive legislation, extending the ambit of the categorisations made in
the 1986 Act to juveniles ‘in conflict with the law’ (i.e. children who have committed, or are
suspected of having committed an offence)
25
, and ‘children in need of care and protection’ (i.e.,
children who have been neglected in terms of socio-economic necessities). The Act thereby sought
to deal with children in situations that could potentially lead them to the path of delinquency and
children who are already in conflict with law.
26

The Juvenile Justice Act as applicable today stipulates blanket immunity on all children under
the age of eighteen by shielding them from trial and subsequent punishment under adult court. It
has been held that even in offences punishable with death or life imprisonment, the jurisdiction to
try a juvenile is vested solely with the Juvenile Justice Board.
27

The philosophy underlying the Act is the doctrine of parens patriae, where the State assumes a
paternalistic role and the obligation of the Juvenile Justice Board is primarily to determine “the best
interest of the child”.
28
The purpose of the ‘enquiries’
29
set up by the Board is not to convict and
impart sentence, but to rehabilitate the child and restore him/her to mainstream society.
IV. A COMPARATIVE ANALYSIS OF JUVENILE JUSTICE
LEGISLATIONS
The evolution in juvenile justice legislations across the globe may be divided into three major
stages.
30
In stage one, offences committed by juveniles were tried under the same framework as
adults. With recognition of the potential for reform in children, the law progressed to stage two and
the State adopted a paternalistic attitude towards juvenile delinquents. Horrific incidents of crime
triggered stage three wherein the State began to espouse a ‘Get Tough’ attitude on juvenile
delinquency, and the welfare model followed previously gave way to a justice model.
On close examination and analysis of the provision and working of the juvenile justice
systems of many jurisdictions, the authors have come to the conclusion that the Massachusetts

22
Objectives, Juvenile Justice Act, (1986).
23
SUMAN NALWA & HARI DEV KOHLI, COMMENTARY ON THE JUVENILE JUSTICE ACT, (Universal Law Publishing
Company, 2011).

24
Aparna Viswanathan, Balancing the Juvenile Act, The Hindu, Sep 9, 2013.
25
Supra note 24, at 28.
26
Id.
27
Sarita Nayak Sawant v. State, Crl. L. J. 351 (1990).
28
Objectives, Juvenile Justice (Care and Protection of Children) Act, 2000.
29
As opposed to the criminal justice system, the juvenile justice system does not use terms like trials and sentencing.
They instead use ‘enquiry’ or ‘adjudication’.
30
See MARK GOTTLIEB, BOSTON BAR ASSOCIATION’S TASK FORCE ON JUVENILE JUSTICE, THE MASSACHUSETTS
JUVENILE JUSTICE MODEL SYSTEM OF THE 1990S: RE-THINKING A NATIONAL MODEL (1994).
6
(USA) and the Canadian Law may be sound models for adaptation by India as the events and social
backlash that prompted changes in these two systems are very similar to the backlash that India is
facing today.
A. CANADA- YOUTH CRIMINAL JUSTICE ACT, 2003
Before 1908, in Canada, children were treated as per adult criminal jurisprudence and there
were no special provisions for juveniles.
31
Stage two came about with the enactment of Juvenile
Delinquents Act, 1908. The Juvenile Delinquents Act in 1908 characterised a significant change in
the philosophy of treatment of juvenile delinquents. It was grounded in the philosophy of parens
patriae. The Juvenile Delinquents Act stated, “every juvenile delinquent shall be treated, not as a
criminal, but as a misdirected and misguided child”.
32
The juvenile justice system adopted a welfare
model and consequently due process rights were minimised and the process was informal; the
primary aim being the welfare of children. This legislation was replaced by the Youth Offenders Act,
1984. As the previous legislation had been critiqued on this ground, this Act accorded due process
rights to juvenile delinquents. However, the primary objective of the legislation still lay in the welfare
of children. The Youth Offenders Act was criticised on many grounds inter alia for being too soft on
the offender, for not properly addressing serious and violent offences, and for not giving enough
recognition to the rights of victims.
33
In 2003, a young girl was brutally attacked by a gang of
juveniles.
34
The Youth Criminal Justice Act, 2003 was enacted in response
35
and stage three in
Canada’s juvenile justice jurisprudence was ushered in. Incorporating a tough outlook on juvenile
delinquents, the Youth Criminal Justice Act expressly states “long-term protection of the public” as
a principle.
36
It further enunciates a need for societal accountability of juveniles by consequences
proportionate to the nature of the offence.
37

Reformation and rehabilitation are also important aims of the Canadian legislation and in
furtherance of the same; there is an array of extra-judicial measures that may be employed when
dealing with juvenile offenders.
38
The Youth Criminal Justice Act provides for incarceration in
certain cases
39
, such as when a violent crime
40
has been committed by the offender, or when there

31
Jay Makarenko, Youth Justice in Canada: History and Debates on Maple Leaf Web (March 1, 2007) available at
http://www.mapleleafweb.com/features/youth-justice-canada-history-debates.
32
Juvenile Delinquents Act § 38 (1908).
33
Dept. of Justice, Govt. of Canada, The Youth Criminal Justice Act and Background, (24, December 2013).
34
Frances P. Reddington,. Lynn S. Urban & Melissa Conn, Canada and the United States: A Comparison of the Approach to
Juvenile Crime, 6 JIJIS 241 (2006).
35
Id.
36
Youth Criminal Justice Act §§ 3(1)(a) and 38(1) (2003).
37
See Youth Criminal Justice Act, 2003.
38
Youth Criminal Justice Act §§17-18 “Such as take no measures (police); issue the young person a caution (police);
issue the young person a formal warning (police and Crown); refer the young person to a program or agency in the
community that may help him or her to stop offending (police); or refer the young person to a program of
extrajudicial sanctions (police and Crown)”.
39
Youth Criminal Justice Act § 39 (1) (2003).
40
1
st
session, 41
st
Parliament. Clause 167 (3) 2012.
7
are aggravating circumstances like manner of commission of an offence. When the juvenile is
convicted for murder, incarceration is mandatory.
41

Recent amendments to the Youth Criminal Justice Act
42
introduce the application of adult
sentence to juvenile offenders from the age between 14-17, who have been convicted of murder,
attempted murder, manslaughter or aggravated sexual assault.
43
The court must be satisfied beyond
all reasonable doubt that imposition of adult sentence is necessary for protection of society.
44
Youth
Criminal Justice Act stipulates that factors such as nature and gravity of offence, age, maturity, and
previous criminal record of the juvenile must be taken in consideration before an adult sentence is
pronounced.
45

Previously, the proceedings of juvenile court were conducted in confidentiality and the
names of juvenile offenders were concealed from public domain.
46
Staying true to the Youth
Criminal Justice Act’s objective of protecting the public, and to aid transparency, the amendment
proposes to insert clauses which facilitate publication of names of young offenders convicted of
violent offences.
47
It also mandates the police to maintain criminal records of all juvenile offenders,
even in cases where no incarceration had been imposed, and only extra-judicial measures were taken
against the juvenile.
48

B. MASSACHUSETTS JUVENILE JUSTICE LEGISLATION
Before 1899, in the United States, juvenile delinquents more than seven years of age
experienced the same criminal sanctions as adults.
49
The transition to stage two occurred with the
first juvenile court which came into existence in 1899.
50
The nature of proceedings of juvenile courts
reinforced the paternalistic nature of the State towards juvenile delinquents. It was a welfare system,
where the principle aim was to rehabilitate the children and protect their rights.
51
The juveniles did
not have any constitutional rights because the presumption was that the court would always act to
further the welfare of the child. This belief began to be questioned in the 1960s and consequently,
due process rights were granted to juvenile delinquents.
52
The progression from stage two to stage
three was stimulated by the Edward O’Brien case. O’Brien was fifteen years old at the time of
commission of offence, and was charged for murder having stabbed his neighbour ninety-seven
times, leading to her death.
53
The judicial decision to try him as a juvenile triggered the emergence of

41
Youth Criminal Justice Act § 42 (2003).
42
1
st
session, 41
st
Parliament. Clause 167 (3) 2012.
43
1
st
session, 41
st
Parliament. Clauses 176 and 183 2012.
44
1
st
session, 41
st
Parliament. Clauses 183 and 183 2012.
45
Youth Criminal Justice Act § 72 (1).
46
Youth Criminal Justice Act §3(1) (b) (iii) (2003).
47
1
st
session, 41
st
Parliament. Clauses 185 and 189 2012.
48
1
st
session, 41
st
Parliament. Clause 190 2012.
49
Frank Sullivan, Jr., Indiana as a Forerunner in the Juvenile Court Movement, 30 IND. L. REV. 279, 281 (1997).
50
Id.
51
Frances P. Reddington, Lynn S. Urban & Melissa Conn, Canada and the United States: A Comparison of the Approach to
Juvenile Crime, 6 JIJIS 241 (2006).
52
Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on the Right Track, 33 U.S.F.L.
401, 405 (1999).
53
Ellen O'Brien, A Death Next Door, Boston Globe, Aug. 31, 1997.
8
the concept of legislative waiver in the 1996 statute.
54
William Weld, the then Governor of
Massachusetts, said in this regard, “society has an obligation to exact retribution ... [and that] only by
facilitating the transfer of violent offenders to the adult system ...would retribution be properly
attained”.
55

The Massachusetts Law, as it stands today, balances the interests of the society against that
of juvenile delinquents by going beyond theories of rehabilitation and incorporating theories of
punishment and deterrence as well. The Massachusetts model does so by introducing an array of
sentencing and trial options. It employs a ‘legislative waiver’, which mandates automatic transfer of a
juvenile accused of first or second-degree murder to adult court.
56
There is also a provision for
blended sentencing
57
, that is, the sentence imposed is such that may continue after the juvenile
attains majority, subject to evaluation of reformation by the requisite judicial authority.
58

Additionally, there is a provision that defines a new category of ‘youthful offenders’, comprising of
juveniles between ages fourteen and seventeen who have been accused of offences punishable by
imprisonment under ordinary criminal law.
59
The jurisdiction over juveniles under this category vests
in the juvenile courts, and they may be subjected to a juvenile sentence, adult sentence or a blended
sentence.
60
The judge is mandated to factor in certain denominators such as the previous criminal
record, age, maturity and capacity of reformation of the offender, as well as the nature of offence
and mode of commission of offence. As a safeguard against unnecessarily harsh punitive measures,
the law mandates that the judge must make a written statement that the punishment imposed is
necessary for present and future public safety.
61

To further the objectives of deterrence and crime-control, Massachusetts among other
states, has reduced the confidentiality quotient usually associated with juvenile court proceedings.
62

This extends to a harsher treatment meted out to repeat offenders, so as to inculcate in them a sense
of responsibility towards society.
63

C. INDIA
The Guardians and Wards Act passed in 1890 was the first time that an attempt was made to
distinguish between criminal sanctions to children and adult offenders. This was followed by the
Juvenile Justice Act 1986, and subsequently the Juvenile Justice Act 2000. All these acts fall under
stage two of the developmental trajectory observed in legislations pertaining to juvenile justice

54
Danielle R. Oddo, Removing Confidentiality Protections and the "Get Tough" Rhetoric: What Has Gone Wrong with the Juvenile
Justice System? 18 B.C. THIRD WORLD L. J. 125-26 (1998)
55
Id. at 124-125.
56
Massachussetts General Law, ch 199, § 74 (1998).
57
Massachussetts General Law, ch 199, §58 (1998).
58
Id.
59
Massachussetts General Law, ch.199, § 52(1998).
60
Massachussetts General Law, ch.199, § 58(1998).
61
Massachussetts General Law, ch.199, § 58(1998).
62
Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on the Right Track, 33 U.S.F.L.
401,405 (1999).
63
Supra note 26, at 16.
9
across the world. All these legislations emphasise the paternalistic role of the State and the primacy
was accorded to welfare and rehabilitation of ‘children in conflict with the law’.
The welfare nature of the Juvenile Justice Act, 2000 first came under public scrutiny with the
Delhi Gang Rape Case, where one of the six rapist-murders of a twenty three year old woman was a
juvenile, aged seventeen and a half years.
64
While the five ‘adult’ accused were awarded the death
penalty, the sixth accused, a ‘juvenile’ as per the definition provided under the Juvenile Justice Act,
2000 will be tried under the aegis of the said Act and be consequently subjected to a maximum of
three years in a remand home- a much more lenient punishment as compared to his co-actors.
65
This
led to immense public outrage and consequently, a clarion call for amendment to the Juvenile Justice
Act and reduction of age of criminal responsibility. This case may prove to be the much-needed
trigger to propel India’s juvenile justice legislation to stage three.
There have already been some unsuccessful attempts to amend the law. A Public Interest
Litigation, Salil Bali v Union of India
66
was filed in 2013. The petitioners challenged the provisions of
the Juvenile Justice Act, in light of the recent Delhi Rape Case and claimed that it was
unconstitutional as it rendered unfettered immunity to the juvenile and obstructed the proper
dispensing of natural justice. Firstly, referring to the Statement of Objects and Reasons of the Act,
the Court, after re-enforcing the various international covenants on the matter held that purpose
behind juvenile justice in India lay in the rehabilitation and re-integration of the delinquents into
society rather than taking punitive measures. Furthermore, the Court stated that according to experts
in the field of child psychology, the chances of reformation taking place in an individual before the
age of eighteen are far greater. Forcing them to languish in jails may inadvertently turn them into
hardened criminals. Upholding the rationale of the Act, the Court asserted that the human brain
continues to develop till one attains the age of eighteen and only at eighteen, does an individual fully
understand the consequences of his action and thus all individuals under the age of eighteen must be
given the protection of the Act.
More recently, in Dr. Subramanian Swamy and Ors v. Raju through Member Juvenile Justice Board
67
,
the Supreme Court dismissed a petition regarding a reading down of the Act to base the premise of
‘juvenility’ on basis of “mental and intellectual maturity”, instead of the present criterion of age. The
petitioners argued that such a blanket categorisation based on age, and regardless of emotional and
mental maturity, and seriousness of the nature of the offence would be in contravention of Article
14. The Court countered this argument stating that since the differentiation has been made in order
to adhere to India’s international obligations, as also to provide a separate framework for trial and
punishment for juvenile delinquents, it will not violate the principles of classification under Article
14. The Court then cited the fundamentals of reading down statutes, holding that if on a literal

64
Supra note 3.
65
Juvenile Justice (Care and Protection of Children) Act § 15 (3) (2000): “…the Board may, if it is of opinion that in the
interests of the juvenile and of the public, it is expedient so to do, in addition make an order that the juvenile in
conflict with law shall remain under the supervision of a probation officer named in the order during such period, not
exceeding three years as may be specified therein, and may in such supervision order impose such conditions as it
deems necessary for the due supervision of the juvenile in conflict with law...”.
66
(2013) 7 SCC 705.
67
Criminal Appeal No. 695 of 2014, Arising out of SLP (Crl.) No. 1953 of 2013, judgment delivered on March 28, 2014.
10
interpretation of the statute, the Court believes that certain provisions may attract
unconstitutionality, the Court may explore whether there has been a legislative omission in that
regard.
68
However, the Court emphasised the thin line between reading down and judicial
overreach
69
, concluding that in the present case judicial interference would be an infringement on
the domain of the legislature. The authors agree with this judgement in so far as it holds that such an
amendment in the law must be undertaken by the legislature.
We do not, however, suggest the reduction of the age of criminal punishment for all
offences as such a measure would not only be in contravention of the various international
covenants that India has signed and ratified, but would also be logically incorrect in the Indian social
context, where social malpractices that exploit children, such as child labour, forced prostitution and
trafficking are still prevalent.
70
The law must be sensitive to the special needs of the children and
give them as much scope for rehabilitation and reformation, as long as it does not unduly
compromise the objective of retribution, which also forms an integral principle of natural justice.
V. THE ‘HARM PRINCIPLE’ AND ITS SIGNIFICANCE IN
LEGISLATIVE PROPOSALS
The legislations mentioned in Part V stems from the recognition of retribution as a
component of ‘justice’. The entire concept of retribution stems from a notion of moral
blameworthiness that justifies the punishment.
71
Hart contends that the offender must pay a ‘debt’
to society in the form of punishment as compensation for violating the social order.
72
Herbert
Morris further extends this logic by stating that “society’s members implicitly agree to an allocation
of benefits and burdens” by agreeing to live in and be a part of that society and “punishment serves
the purpose of restoring the equilibrium of benefits and burdens”.
73
It obviously follows that as
certain grave crimes would upset this equilibrium more than others; the restoration of this
equilibrium must be based on a ‘principle of proportionality’, which correlates the punishment
meted out with the gravity of the act in question.
The gravity of a certain act is a function of the extent of the harm caused, the degree of the
criminal’s involvement in the alleged harm
74
and the prior knowledge that the criminal had of the
extent of harm his act may cause. Incorporating the degree of harm into the sentencing calculus is a
judicial imperative, as different crimes are committed with differing degrees of intention to cause
harm. For instance, a murderer, by intending to end the life of a fellow human being necessarily

68
Delhi Transport Corporation vs. D.T.C. Mazdoor Congress and Others 1991 Supp. (1) SCC 600.
69
Murthy Match Works and Others vs. The Asstt. Collector of Central Excise and Another (1974) 4 SCC 428.
70
“Such exploited children are generally prone to committing more offences due to economic, social or educational
under-development and the State is under an obligation to rectify this as far as possible”. See Shreya Shah, India’s
Missing Children, By the Numbers, WALL STREET JOURNAL INDIA (Sept 11, 2014) available at
http://blogs.wsj.com/indiarealtime/2012/10/16/indias-missing-children-by-the-numbers/
71
Supra note 13.
72
H.L.A. HART, PUNISHMENT AND RESPONSIBILITY, 231 (1982).
73
Herbert Morris, Persons and Punishment, in PUNISHMENT 89, (J. Feinberg and H. Gross eds., 1975).
74
R.Nozick, Philosophical Explanations, (Cambridge: Harvard University Press, 1981), pp. 363-66.
11
intended greater harm than a petty thief who intended to deprive another human being of some cash
and hence, the murderer must receive a harsher sentence.
Recognition of harm also casts the offence in a more significant light by indicating that a
crime is not only a violation of a set of rules or laws, but also has a direct impact on society through
the impact on the victim. It has the two-pronged benefit of recognising the offence as a misuse of
the offender’s free will which has been bestowed upon him by society and also as an injury to the
other individual.
75
It is logically incorrect to ignore the impact on the victim in the process of
sentencing as a violent crime necessarily involves at least two parties and the current justice system
in our country seems to focus on the criminal, while neglecting the victim as a stakeholder.
76
The
Right to Life has been guaranteed to all individuals by Article 21 of the Constitution. The Supreme
Court has laid down, on innumerable occasions, that this right does not refer to mere “animal
existence” but extends to the “right to live with human dignity”.
77
This right extends to living a
peaceful life without being subjected to violence or other forms of heinous abuse from other
members of society. This is where the irreducible ‘right of the victim’, which has its genesis in the
discourse on Article 21 of the Constitution and supersedes the rights of the offender, comes into
play.
In State of U.P. v Sanjay Kumar
78
, the Court proclaimed that a sentencing policy in any criminal
justice system must consider two aspects-the gravity of the crime and the background of the
individual. Endorsing the ‘theory of proportionality’
79
for the determining of the sentence-a doctrine
that has been proclaimed by the Beijing Rules, the Court further stated that ignoring the needs of
the victim and his community and their right to avenge the loss suffered due to the offence would
amount to an encroachment of the ‘human dignity’ that is guaranteed by Article 21.
The ‘1993 Bombay Blasts’ were one of the most heinous acts of terrorism in the last twenty-
five years. On 12 March 1993, a series of 13 bomb blasts rocked the city of Mumbai, resulting in 350
deaths and up to 1200 other injuries.
80
In the Bombay Blasts Case
81
Muhammad Moin Faridulla
Qureshi, who was seventeen years and three months old at the time of commission of the offence,
was denied the protection of the Act on account of the nature of the offence committed by him and
was subsequently tried and convicted along with other adult perpetrators under the Terrorist and
Disruptive Activities Act (TADA). The Court, upon convicting him stated that the gravity of his
crime indicated that he was certainly not a “child in need of care and protection”
82
, which was the

75
D.Van Ness, Crime and it’s Victims, 23-24 (1986).
76
Lynne. N. Hendersen, What’s Wrong With Victims Rights, 4 STAN. L. REV. 9,973-1021 (1985).
77
State of Maharashtra v. Chandrabhan, AIR 1983 SC 803; Olga Tellis & Ors. v. Bombay Municipal Corporation, AIR
1986 SC 80.
78
(2012) 8 SCC 537.
79
The jurisprudence on the retributive theories of justice lie in the notion that in committing an offence, the criminal
has violated the natural order and must make compensation to restore such a natural order. David. A. Starkweather,
The retributive theories of ‘just deserts’ and victim participation in plea bargaining, 3 IND. L. J. 67 (1992).
80
THOMAS HANSEN, WAGES OF VIOLENCE NAMING AND IDENTITY IN POST-COLONIAL BOMBAY, 125, (2001).
81
Essa @Anjum Abdul Razak Memon (A-3) and Ors .v. The State of Maharashtra, through STF, CBI Mumbai and Ors.
etc., 2013 (3) SCALE 1.
82
Id.
12
pre-requisite of being granted protection under the Juvenile Justice Act, as stated in its preamble.
The reasoning for the same is worth analysing in the present context.
The Court employed two legal instruments to adjudicate upon this case. Firstly, as has been
previously established
83
, Article 142
84
recognises that the plenary power of the Supreme Court exists
“independent of statutes with a view to do complete justice between the parties and may be put on a
different and perhaps even wider footing than ordinary inherent powers of a court to prevent
injustice…”.
85
Secondly, in order to interpret the Act, the Court invoked the ‘Doctrine of Purposive
Construction’. This doctrine essentially states that the interpretation of statutes should be such that
the basic object and purpose of the act in question should not be destroyed. The court combined
the doctrine with a joint reading of Articles 139-A (2)
86
and 142 of the Constitution of India, Section
151
87
of the Code of Civil Procedure, thereby justifying the over-riding effect of TADA over the
Act. The court interpreted the meaning of the words “ends of justice”, as mentioned in Article 139-
A (2), in light of State Bank of Patiala & Ors v.S.K. Sharma
88
where it was held that the interest of
justice was best served by following principles of natural justice and any technical irregularity, which
obstructed the guilty from being punished, should be discarded and not be allowed to defeat the
purpose of justice.
89

The current loopholes in the Act go beyond mere technical irregularities and actually prevent
the proper dispensing of justice. Hence, instead of compelling the Supreme Court to use the great
powers bestowed on it by Article 142, the legislative changes recommended re-enforce the causes of
natural justice by ensuring that heinous offenders are removed from the juvenile justice system as
soon as they are convicted and all murderers or rapists are justly punished without the possibility of
any room for doubt.
VI. REBUTTING THE LACK OF AGENCY ARGUMENT: A BRIEF
PERSPECTIVE ON NEUROSCIENCE
One of the core arguments forwarded by advocates of the provision of blanket immunity to
juveniles and exemption from the harm principle analysis with respect to sentencing that was done
in the preceding section is that the human brain and consequently, decision-making capacity of an

83
See e.g. Kalyan Chandra Sarkar v. Rajesh Ranjan @ PappuYadav and Anr, AIR 2005 SC 972.
84
INDIA CONST. art. 142: “..The Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it...”.
85
Id.
86
INDIA CONST. art.139-A: “(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice,
transfer any case, appeal or other proceedings pending before any High Court to any other High Court”.
87
Civil Procedure Code § 151 (1908) “Nothing in this Code shall be deemed to limit or otherwise affect the inherent
power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the
process of the Court”.
88
1996 AIR 1669.
89
State Bank of Patiala & Ors v. S.K. Sharma, 1996 AIR 1669: “Justice means justice between both the parties. The
interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which
do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the
means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a
counter-productive exercise”.
13
individual continues to mature and develop till an individual reaches adulthood.
90
Due to this, many
proponents of a system that provides blanket immunity for all juveniles state that the juveniles lack
agency to commit crime. The pre-frontal cortex, which regulates decision-making and the expression
of emotions is one of the last parts of the brain to fully develop and recent research has shown that
complete development can take place well beyond the adolescent years into adulthood
91

Furthermore, the limbic system, which aids the processing and management of emotions does not
fully form in the adolescent years either.
92
As a result of these two factors, neuroscientists believe
that the adolescent acts differently with respect to varied situations of altered emotional stress.
93

These situations have been broadly classified into two kinds. In situations of ‘hot cognition’,
individuals are generally more prone to taking undue risk due to the high levels of emotional
intensity generated by factors such as peer-pressure or the presence of an uncontrolled environment
such as the streets or the playground, which prevents them from acknowledging the consequences
of their behavior.
94
Conversely, in situations of ‘cold-cognition’, where a controlled setting such as
the classroom or a family outing enables the individual to act with less impulse and more rationale,
volatile acts that may be committed at the spur of the moment are generally prevented.
95
This nexus
between recent developments in neuroscience and juvenile agency was recognised by the American
Supreme Court in Roper v. Simon
96
, which abolished the death penalty for juveniles in all
circumstances. Proponents of using neuroscience in the juvenile justice system argue that it is the
most sophisticated and all-encompassing means of explaining delinquent behavior and should be the
rationale behind negating the blameworthiness of the juvenile, resulting in the provision of carte
blanche’ immunity to any juvenile convicted of a crime from the normal law without making any
distinction between various offences.
97

Opponents of this theory however believe that basing the entire juvenile justice system solely
on neuroscience and the consequent lack of agency argument, which has been stated in the
preceding paragraph, would be fallacious on three counts.
98
Firstly, the science of brain imaging is
still in its nascent stages.
99
There is no concrete scientific evidence to show that the development of
the pre-frontal cortex, known as myelination is equally underdeveloped for all individuals below a

90
National Juvenile Justice Network, USING ADOLESCENT BRAIN RESEARCH TO INFORM POLICY: A GUIDE FOR
JUVENILE JUSTICE ADVOCATES (September 2012).
91
Id.
92
Wisconsin Council on Children and Families, Rethinking the Juvenile in Juvenile Justice: Implications of Adolescent Brain
Development on the Juvenile Justice System (March 2006).
93
As stated by Ronald Dahl: “These changes manifest as mood swings, greater conflict with parents, a greater tendency
for risk-taking and rule-breaking and an increased draw towards novel experiences and strong sensations”. Ronald. E.
Dahl, Adolescent Brain Development: A Period of Vulnerabilities and Opportunities 1021 ANNALS N.Y. ACAD, SCI. 12-16
(2004).
94
Wisconsin Council on Children and Families, Rethinking the Juvenile in Juvenile Justice: Implications of Adolescent Brain
Development on the Juvenile Justice System (March 2006).
95
Id.
96
543 U.S.551, 578 (2005).
97
See Emily Buss, Rethinking the Connect between Developmental Science and Juvenile Justice, 76 U. CHI. L. REVIEW 493, 507
(2009); Jay D. Aronson, Neuroscience and Juvenile Justice, 42 AKRON L. REV. 917, 924 (2009).
98
Johanna Cooper Jennings, Juvenile Justice, Sullivan and Graham: How the Supreme Court’s Decision Will Change the Neuroscience
Debate, 6 DUKE L. & TECH. REV. 8-10 (2010).
99
Jay D. Aronson, Neuroscience and Juvenile Justice, 42 AKRON L. REV. 917, 924 (2009).
14
certain age.
100
Secondly, biology may not be the sole cause behind criminality and certainly, the fact
that the under-developed adolescent brain does not affect all juveniles equally can be intuitively
deduced by the fact that not every juvenile, despite similar brain development, commits heinous
crimes.
101
Thirdly and most importantly, the underdeveloped brain does not and cannot negate the
formation of specific intent or mens rea to commit a crime, which marks the foundation of any form
of criminal liability. The proponents of the theory that juveniles lack agency do not contend that the
adolescent is incapable of forming specific intent and anticipating the consequent harm but drawing
from theories on neuroscience, they argue that his “technically sufficient mental state is substantively
irrational”.
102
For example, the proponents would argue that when an adolescent commits homicide,
he may understand that his act will lead to the death of the victim and that this death will cause a
great deal of harm to society but may not be able to determine the far-reaching consequences that
may ensue upon the person’s death for his loved ones or the economic debilitation such death could
potentially cause. This notion leads to an unnecessarily deep conception of mens rea and goes against
the foundational principles of criminal law, which have long established that a person is presumed to
intend the consequences of his/her actions. Mens rea may be categorised into four stages, namely
volition, motive, will and intention.
103
‘Volition’ is the legal term for the desire that leads a human
being to perform any conscious, voluntary act.
104
This desire is a means to achieve a larger, more
long-term goal, termed as ‘motive’.
105
Intention has been defined as the object aimed at by the act
caused by the volition.
106
It refers to the immediate expectation from the consequences from the said
act.
107
The continuing desire for a particular consequence, which inspires numerous volitions to
perform acts that may lead to the consequence from time to time, is referred to as ‘will’.
108

None of these definitions extend to the awareness or understanding of the far-reaching
consequences of the act so performed, and proponents of granting blanket immunity are subverting
due process by creating a phantom fifth stage which extends to understanding the social implications
and consequences of one’s act.
It is argued that a more nuanced approach towards the use of neuroscience in the juvenile
justice system be taken. While, for the reasons mentioned above, neuroscience cannot serve as the
basis for shaping legislative policy to the extent of establishing that all juveniles lack the agency to
commit crime, evidence and expert analysis provided by neuroscientists may be applied on an

100
B.J. Casey et al, The Adolescent Brain 1124 ANNALS N.Y. ACAD, SCI. 111,112,122; See also State v. Garcia NO.CR
2005-422 (N.M. Dist.Ct.Dec.14.2007), Transcript 1 (testimony of Gur). As there is a clear difference between the two
genders with respect to the onset of puberty, girls tend to mature faster than boys and should thus, logically, be held
more responsible than their male juvenile counterparts.
101
Ibid.
102
Terry. A. Maroney, The False Promise of Adolescent Brain Science in Juvenile Justice, 85 NOTRE DAM L. REV. 89,94 (2009); See
also State v. Garcia NO.CR 2005-422 (N.M. Dist.Ct.Dec.14.2007), Transcript 1, at 170-172 (testimony of Beyer). He
essentially argued that children fail to see the worst possible consequences of their actions or that there may be more
than one possible cause of action that he may resort to.
103
SYED SHAMSHUL HUDA, PRINCIPLES OF THE LAW OF CRIMES 170 (Eastern Book Company 2011).
104
Id. at 171.
105
P.S.A PILLAI, CRIMINAL LAW, 42 (2012).
106
Supra note 101, at 174.
107
Supra note 102.
108
Supra note 100.
15
individual case-by-case basis to ascertain whether the specific individual in question merits adult
punishment when considered in conjunction with the circumstances surrounding the crime and the
state he or she was in at the time of commission of the act, something that will be considered in the
next section. Certainly, recent developments in neuroscience do contribute, albeit marginally, to our
understanding that juveniles deserve a separate system for themselves by establishing the general
principle that juveniles differ from adults in their responses to various situations. It cannot, however,
serve as a justification for extending protection of the juvenile law to all perpetrators of heinous
crimes, irrespective of the amount of harm the crime has caused because the research is not concrete
enough to warrant such a blanket legislative approval.
VII. RECOMMENDATIONS
Keeping the analysis on victim’s rights in mind and the recent trend of cases in India where
juveniles have emerged as ‘super-predators’
109
, as well as the comparative study of juvenile justice
legislations across jurisdictions, the authors of this paper have proposed some amendments to the
Juvenile Justice Act. Apart from specific gory instances
110
that have fuelled public sentiment against
the provision of blanket immunity to the juvenile, the most recent records compiled by the National
Crime Records Bureau (NCRB) in 2013 show that there has been an unprecedented 87% rise in the
number of rapes committed by juveniles between 2007 and 2012 and a 500 per cent increase in the
kidnapping of females by minors.
111

It is argued that the Youth Criminal Justice Act and Massachusetts Juvenile Justice
Legislation are in line with the principles of natural justice and successfully account for the rights of
the victim without taking away from the special status of the juvenile. The recommendations in this
section are founded on the provisions of those statutes but set in the context of the juvenile justice
system, as it has evolved in India.
A. LEGISLATIVE WAIVER
The Indian Penal Code states that a person above the age of twelve may possess the
requisite mens rea to commit crime.
112
Further, the Supreme Court has explicitly recognised the fact
that a child can only be convicted for his act if it can be proved that he fully comprehended the
nature and consequences of his act.
113
The Court went on to say that it might be safely assumed that
a child below seven years of age cannot do so. In the case of children between the two ages, the

109
Mumbai: Police Files Charge Sheet in Shakti Mills Gang Rape Case (Oct 13, 2008) available at
http://ibnlive.in.com/news/mumbai-cb-files-chargesheet-in-the-2nd-gangrape-case-at-shakti-mills/427190-3-
237.html); 5 juveniles held for gang rape in Guwahati, The Hindu, September 08, 2012, available at
http://www.thehindu.com/news/national/other-states/5-juveniles-held-for-gang-rape-in-
guwahati/article5137332.ece Supra note 3.
110
Id.
111
National Crime Records Bureau, Crime in India 2012 (Jun 4, 2013).
112
See sections 83 and 84, Indian Penal Code. IPC holds that children till 12 years of age cannot be held responsible for
their actions, effectively meaning that from 12 years onwards, children do have the capacity of forming mens rea to
commit crimes.
113
Abdul Sattar v. Crown AIR 1949 Lah 451.
16
Court presumes that they are in the ‘twilight zone’ and have not reached the age of discretion either,
though this presumption can be rebutted if there is concrete evidence to the contrary, thereby
leaving it up to the judge to decide whether the child should be held liable for his action.
114
The
authors recommend that juveniles above the age of twelve convicted for culpable homicide or
murder under Sections 299 or 300 of the Indian Penal Code or for rape under Section 375 be
punished under the normal law without obtaining the benefits of the juvenile justice system on the
basis of their intention to cause greater harm.
115

Any form of aggravated sexual assault should be placed in the category of automatic
legislative transfer as it involves the juvenile offender possessing a degree of intention that is enough
to violate the bodily integrity of another human being. The Supreme Court, in Shri Boddhisatwa
Goutam v. Miss Shubhra Chakraborty
116
elucidated the gravity of rape as a crime by stating that,
It is only by her sheer will power that she rehabilitates herself in the society which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is,
therefore, the most hated crime. It is a crime against basic human rights and is also violative
of the victim's most cherished of the Fundamental Rights, namely, the Right to Life
contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence
than an act of aggression aimed at degrading and humiliating women.
117

The offenders may be tried by the Juvenile Justice Board because till they are proved to be
guilty of the heinous offence, they must be assumed to be innocent and hence still possessing the
right to use their special juvenile status bestowed upon them through the Constitution and the
provisions of this Act. However, as soon as they are convicted of being a rapist or a murderer, the
sheer gravity of such conviction means that their special status and right to be treated as a juvenile
has been forsaken and hence, they must be punished as adults. Furthermore, Section 19 of the Act,
which mandates the erasing of all records of juvenile offenders, should be amended to not include
crimes punishable with life imprisonment or death penalty under its ambit for the purpose of
detecting repeat offenders and not provide them immunity if it appears that these recidivists do not
seem to be responding to any rehabilitative efforts.
118
It is imperative that the judicial system
attempts to balance the rehabilitative requirements of the juvenile with other necessary interests such
as the ensuring of accountability to the victim and restoration of the societal equilibrium that has
been upset by the offender. The minute chances of rehabilitation and reformation that may exist in
the case of juveniles who commit heinous crimes need to be subverted to the larger social interest of
upholding the principles of natural justice.
119
Providing them the benefit of the lenient juvenile

114
Hiralal Mallick v. State AIR 1977 SC 2236.
115
Add 16 (1) A- Provided, where a juvenile above the age of twelve is charged with culpable homicide or rape as
punishable under the Indian Penal Code, the provisions of this clause will not apply and the accused may be
punished as per the provisions of the general law.
116
1966 AIR 922.
117
1966 AIR 922.
118
Add Section 19 2-B “Provided for juveniles convicted of crimes punishable with life imprisonment or death penalty,
19(2) shall not apply and the records shall not be erased.”
119
Joseph. F. Yeckel, Violent Federal Offenders in Juvenile Justice, 51 WASH. U. J. URB & CONTEMP L. 331-335 (1997).
17
punishment facilities detracts from the resources that may have been spent in other cases where
rehabilitation is possible and hence causes a net social loss.
B. JUDICIAL DISCRETION
For the juveniles aged twelve to seventeen charged with other ‘violent offences’, the authors
of this paper suggest that, as is done in several other jurisdictions
120
, both the judiciary
121
and the
Juvenile Justice Board should retain a certain amount of discretion to impose punitive measures
harsher than the ones presently stipulated by the Act. ‘Violent offences’ should be defined as
“offences in the commission of which a young person causes, attempts to cause or threatens to
cause bodily harm”.
122
The authors endorse this definition, and have attempted to draw a logical
equivalent with the Indian Penal Code. The sections of the Indian Penal Code that this definition
may attract include, but are not limited to ‘Grievous Hurt’
123
, Robbery
124
and Dacoity
125
. The
rationale for advocating that judicial discretion be applicable to these offences as opposed to an
automated legislative waiver is that their definitions as given in the Indian Penal Code cover a wide
range of harm intended and harm caused. For instance, Section 320 lays down that fracture or
dislocation of a bone or a tooth will also constitute ‘grievous hurt’. This could technically apply to
fracturing a finger, or punching out a milk tooth, both of which would not constitute offences
atrocious enough for a child to be subjected to adult sentence, or blended sentencing. Hence, the
authors advocate the buffer of judicial discretion for violent offences not including rape, culpable
homicide not amounting to murder, and murder.
The introduction of provisions empowering the Juvenile Justice Board to impose an adult
sentence, or a ‘blended sentence’
126
provides them the flexibility to ensure that those who do not
deserve the benefit of or may not benefit from the juvenile justice system are filtered out of it.
Whenever, a juvenile is charged with a crime, the presumption must be that he is to be
treated as per the Act (a presumption of juvenility). The judge must be convinced beyond reasonable
doubt that employing one of the three proposed trial and sentencing options would make for a far
more expeditious disposal of justice. Certain denominators that the judicial authority must consider
before pronouncing sentence should be laid down in the Act itself. These may include, but need not
be limited to, the previous criminal record of the offender, gravity, nature of the offence, age and
maturity of the offender and his/her personal amenability to any form of rehabilitative treatment
and circumstances under which the crime was committed.
127
The judge may also use the expert

120
See Youth Criminal Justice Act (2003), Massachusetts General Laws, ch 199 (1998).
121
From District Court onwards.
122
Laid down by the Canadian Supreme Court. R. v. C.D.K.,(2005) 3 S.C.R. 668, ¶ 17.
123
Indian Penal Code, §§ 320-328 (1860).
124
Indian Penal Code, §§ 390-398 (1860).
125
Id.
126
Blended sentences allow for juvenile courts to impose adult sentences or extend their juvenile punishments into early
adulthood. See Cathi. J. Hunt, Note, Juvenile Sentencing: Effects of Recent Punitive Sentencing Legislation on Juvenile Offenders and
a Proposal for Sentencing in the Juvenile Court, 19 B.C. THIRD WORLD L. J. 668, 670 (1999).
127
Candace Zierdt, The Little Engine That Arrived at the Wrong Station: How to Get Juveniles Back on the Right Track, 33
U.S.F.L. 401,405 (1999).
18
testimony of neuroscientists to determine whether the act of the child with respect to the given
circumstances merits protection.
128

The provision of such discretionary powers on the judiciary acts as a safety valve in
miscellaneous cases where an offender may be a few months short of his eighteenth birthday or may
have already spent an unsuccessful term in a juvenile correctional facility. It gives the judge the
opportunity to use his judicial mind to determine, on a case-by-case basis whether such offenders
deserve the protection of the juvenile justice system in our country.
VIII. CONCLUSION
There are many flaws in the Act as it stands today, most of them originating from a single
cause. By according primacy to the reformation of the juvenile offender and focusing all its
provisions in furtherance of his rehabilitation and reintegration into society, the Act compromises
public safety and can be contended to be in contravention of principles of natural justice. There
being a pressing need for a more balanced approach, recommendations have been made keeping in
mind that the intention to cause harm to society is an integral aspect of commission of any offence.
It has been contended that society’s willingness to forgive the offender should therefore be the
primary factor in determining sentence, and that the possibility of his reformation should only
supplement it, instead of being the predominant consideration. The authors do not suggest adopting
an unnecessarily harsh approach towards juvenile offenders, and the suggestions put forth do not
contravene any international treaties or norms. While acknowledging the fact that a juvenile should
be shielded from the criminal law because of his/her special status and the inherent possibility for
reform, it is imperative that the justice system in our country and the public perception of it is not
compromised for the sake of this possibility. One outrageous act of murder or rape may spiral into a
destruction of public faith in the justice system if it is not checked properly. These incidents have
brought the juvenile justice laws to stage three of the trajectory of juvenile justice legislations. This is
why the authors have advocated the legislative waiver for exceptionally heinous offences such as
rape and murder, and have also recommended the incorporation of judicial discretion on a case-by-
case basis to filter out the instances where reformation is not a possibility. Society’s willingness to
forgive the offender is an integral aspect of determining sentence. Hence, the entire system of
juvenile justice essentially revolves around the extent of the cost of reformation that we, as a society
are willing to bear.



128
Maroney, Supra note 95, at 164.


19
THE GREENING OF TRADE JURISPRUDENCE:
A STUDY ON THE CONFLICT AND RECONCILIATION OF TRADE
AND ENVIRONMENT
Nivedita Raju
*

Environmental protection was not a concern when the General Agreement on Tariffs and Trade was drawn
up after World War II. Until recently, trade policy-makers and environmental officials pursued their work on separate
tracks, rarely perceiving their realms as interconnected. Today, environmental protection is a central issue on the public
agenda- and trade and environmental policies regularly intersect and increasingly collide.
1
It is the sovereign right and
duty of States to protect their citizens and territory with respect to the environment, health, public morals and public
order. Measures taken in the exercise of these rights and duties can be protested against as being ‘protectionist’ by
affected parties. However, States possess the policy space needed for the establishment of the measures necessary to
protect their territory. Therefore, when States trade with each other across borders, this intersection of free trade and
environmental protection inexorably instigates political differences. Essentially, the WTO law envisages non-economic
exceptions to free trade which form the basis for protection of environment within the framework of the General
Agreements on Tariffs and Trade (GATT). These exceptions include the protection of human, animal and plant life
and health, the conservation of exhaustible natural resources, sanitary and phytosanitary (SPS) measures and technical
barriers to trade (TBT). This paper will study the dawn of conflict between trade law and environment by introducing
the essential trade principles under GATT in Section I, following with cases in Section II arising out of disputes
between countries to impose trade restrictions with the objective of protection of the environment. Restrictions in the form
of sanitary and phytosanitary (SPS) measures and technical barriers to trade (TBT) will also be dealt with in this
section, while Section III will deal with the conflict between GATT and Multilateral Environmental Agreements
(MEA). In Section IV, the author will strive to propose recommendations before concluding with final remarks in
Section V of the paper.
I. INTRODUCTION – ESSENTIAL TRADE GOVERNING
PRINCIPLES UNDER GATT
GATT was established in response to growing international economic interdependence.
‘Globalisation of trade’ translated into the globalisation of effects of trade incentives as well as
restrictive measures. Any trade favouritism or hostility shown towards one country or any
protectionist measure adopted for domestic products meant trade losses or gains for other countries.
To create a level playing field where trade between and within countries is regulated by a common
set of principles thus became a necessity. This led to the formation of GATT which laid down the
following principles:

*
I
st
year, L.L. B., Government Law College, Mumbai.
1
DANIEL C. ETSY, GREENING THE GATT: TRADE, ENVIRONMENT AND FUTURE, Institute for International
Economics, 9 (1994).


20
Article III
2
of GATT mandates that all foreigners and local citizens be treated equally, that is
to say that both imported and locally-produced products must be treated on the same footing. This
National Treatment principle essentially prohibits protectionist measures which may give leverage to
domestic products over ‘like’ imported products. The principle of National Treatment is symbiotic
with the Most-Favoured Nation (MFN) principle, under Article I, which states that a country, which
has been accorded ‘MFN’ status may not be treated less advantageously than any other country
which also has an MFN status by the promising country. This principle cautions against such
measures which may have the effect of promoting one imported product from one country over
another ‘like’ imported product from another country. MFN relationships extend to
reciprocal bilateral relationships following both GATT and WTO norms of reciprocity and non-
discrimination. The principles of National Treatment and Most-Favoured Nation, therefore, form
the cornerstones of GATT and WTO legislation.
Now addressing Article XI, the GATT expresses the ‘General Elimination of Quantitative
Restrictions’, and prohibits the imposition of restrictions apart from duties, taxes or other charges
under Clause 1
3
while also laying out several exceptions in specific scenarios under Clause 2.
However, Article XX on General Exceptions contains exceptions for the fulfillment of non-
economic objectives. Article XX (b) and XX (g) state that trade measures can be taken for reasons
of protection of human, animal or plant life or health and for conservation of exhaustible natural
resources. Nevertheless, these provisions for regulatory measures reel in apprehension of misuse as
they appear to be tools of protectionism of the domestic industry or as modes of discrimination in
products from various States.
These apprehensions are addressed by the ‘Chapeau’ to Article XX which emphasises that
the measures provided by the Article will not be applied in a manner that would constitute a means
of arbitrary or unjustifiable discrimination between States which possess the same conditions, or a
veiled hindrance to international trade. There is a fixed method of the application of Article XX.
The procedure is two-tiered; first, the provisional justification of the measure under the individual
sub-paragraphs of Article XX of GATT is applied, followed by the appraisal of the measure under
the Chapeau
4
. As the measures under Article XX are exceptions, the onus of justification is on the
parties who invoke it. The burden is upon the invoking party both to prove the sub-paragraph
requirements, as well as to prove the chapeau requirements.
5
A country seeking protection under
Article XX first has to prove that the trade measure objected to, is for the protection of human,
animal or plant life or health. The second step is to show that the measure is necessary. To pass the

2
National Treatment on Internal Taxation and Regulation, General Agreement on Tariffs and Trade, Apr 15, 1994, art.
III, part II, 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).
3
“No prohibitions or restrictions other than duties, taxes or other charges, whether made effective through quotas,
import or export licences or other measures, shall be instituted or maintained by any contracting party on the
importation of any product of the territory of any other contracting party or on the exportation or sale for export of
any product destined for the territory of any other contracting party”. General Agreement on Tariffs and Trade, Apr
15, 1994, Article XI (1), 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).
4
STEFAN ZLEPTNIG, NON-ECONOMIC OBJECTIVES IN WTO LAW, Vol.1, 112 (2010).
5
SIMON LESTER & BRYAN MERVURIO, WORLD TRADE LAW: TEXT, MATERIALS AND COMMENTARY, 382, (Hart
Publishing, 2010).


21
test of necessity, the country has to establish that there should not have been an alternative that was
reasonably available that was less inconsistent with GATT legislation. The country consequently has
to first ascertain whether an alternative measure is reasonably available and must then determine the
consistency of this alternative provision with other GATT provisions. If no such alternative measure
exists, then it is said that the measure taken by the country was “necessary”.
This test was applied by the GATT in Thailand-Cigarettes
6
wherein the Thai government
imposed restrictions on foreign cigarettes under the premise of Article XX (b). The GATT Panel,
while accepting Thailand’s contention that smoking is injurious to health and therefore well within
the ambit of Article XX (b), ruled out the necessity of the measure, because there were other
methods which Thailand could have reasonably used, for instance banning positive cigarette
advertisements and updating ingredient disclosure regulations. This rigid ‘least trade restrictiveness’
test developed and applied by GATT Panels, especially in Thailand-Cigarettes has been criticised as
imposing too many constraints on domestic regulation.
7

However, a new feature of requirement was recently developed in Brazil-Retreaded Tyres
8
,
where the Brazilian government had imposed import restrictions on tyres following the health risks
posed by unused tyres as breeding grounds for mosquitoes. The Appellate Body (AB) held that no
alternative measure put forth by the European Communities (EC) could substitute Brazil’s import
ban. They said that in order to justify an import ban under Article XX (b), a panel must be satisfied
that it brings about a material contribution to the achievement of its objective. This new feature is a
great stride of the WTO towards environmental protection as it allows a country to design its trade
measures such that they foresee the applicability of policies of sustainable development in light of
environmental protection.
Further, Article XX (g) allows parties to adopt measures inconsistent with the provisions of
the GATT if they relate to the conservation of exhaustible natural resources, provided such
measures are made effective in conjunction with restrictions on domestic production or
consumption. The requirements that a country must fulfill in order to invoke this exception are:
- the objective or measure has to be for the conservation of ‘exhaustible natural resources’
- the measure must relate to the conservation of exhaustible natural resources
- the measure must be in conjunction with restrictions on domestic production or
consumption.
9

The landmark case US-Gasoline
10
laid down a test to determine whether a measure is related
to the objective sought to be furthered. The panel said that the crux of the matter lay in determining

6
WTO Appellate Body Report, Thailand - Customs and Fiscal Measures on Cigarettes from the Phillipines, Jul 15,
2011, WT/DS371/AB/R.
7
STEFAN ZLEPTNIG, NON-ECONOMIC OBJECTIVES IN WTO LAW, Vol.1, 112 (2010).
8
WTO Appellate Body Report, Brazil - Measures Affecting Import of Retreaded Tyres, Aug 29, 2008,
WT/DS332/AB/R.
9
PETER VAN DEN BOSSCHE, THE LAW AND POLICY OF THE WORLD TRADE ORGANISATION: TEXT, CASES AND
MATERIALS, 502 (Cambridge University Press, 2005).
10
WTO Panel Report, United States - Standards for Reformulated and Conventional Gasoline, May 20, 1996,
WT/DS2/R, as modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, 29.


22
if the measure and policy have a ‘substantial’ relationship. The two should therefore be inherently
linked. The view of the panel was further clarified in Canada-Herring and Salmon,
11
where it was held
that ‘relating to’ means that the measure must be ‘primarily aimed’ at the objective.
It is concluded therefrom, that while the sanctity of the MFN and National Treatment
principles cannot be easily disturbed, countries are increasingly relying on the exception clauses to
further their environmental protection aims. The following section will highlight the dilemma
created by this increasing trend through case studies, which will also bring to the fore the creative
manner in which the dispute settlement bodies are interpreting the GATT principles to
accommodate environmental concerns, wherever possible.
II. CASE STUDIES
1. Tuna-Dolphin I And II
12

These two disputes arose in light of the United States embargoes on yellowfin tuna and
yellowfin tuna products imported from Mexico and other countries that used purse-seine fishing
methods which resulted in an alarming increase in the death of dolphins. Purse-seine fishing is a
method wherein there are two fishing boats, primarily the seine skiff, which goes out to encircle the
school of fish and then deploys a net around them for capture, finally returning to the main fishing
vessel to complete the circle parameter. The net is then reeled in with the entire contents of fish for
processing. The unfortunate predicament that evolved with this method is that innumerable
dolphins, which tend to swim above schools of yellowfin tuna in the Eastern Pacific Ocean, would
end up in the nets as incidental casualties. This led to the US ban on tuna imports from Mexico,
which had the largest tuna product industry at the time, via the Marine Mammal Protection Act of
1972 (MMPA). Section 101(a)(2)(B) of the Act stated that the import of yellowfin tuna harvested
using purse seine nets in the Eastern Pacific was prohibited unless the government of the importing
country could show that it had a program comparable to the average rate of ‘taking’
13
in United
States to reduce marine mammal by-catch. The onus was on the country requesting a finding to
show through documentary evidence that ‘taking rates’ are comparable. Mexico refused to abide by
the new standards of modifying their fishing techniques, and so no products were accepted from the
origin of Mexico into the United States.
Mexico brought a complaint through GATT Articles III, XI and XII
14
claiming
inconsistency of the MMPA product ban with WTO legislation, bringing to the forefront the debate
over Process and Product Methods (PPMs) on the regulation of international trade on the basis of


11
GATT Panel Report, Canada - Measures Affecting Exports of Unprocessed Herring and Salmon, Mar 22, 1988,
BISD 35S/98.
12
GATT Panel Report, United States - Restrictions on Imports of Tuna, DS21/R, Sep 3, 1991,unadopted, BISD
39S/155.
13
“The term ‘take’ means to harass, hunt, capture, kill or attempt to harass, hunt, capture or kill any marine mammal”.
Marine Mammal Protection Act, § 3(13) (1972).
14
Non-Discriminatory Administration of Quantitative Restrictions, General Agreement on Tariffs and Trade, Apr 15,
1994, art. XIII, 1867 U.N.T.S. 187; 33 I.L.M. 1153 (1994).


23
production methods or in this case, the technique used to harvest tuna. The issue with PPMs was
that the actual process used is not relevant if the end-product is the same. This also showcases how
developing countries were growing increasingly frustrated with the inclusion of PPMs in the WTO,
as they feared that this would help industrialised countries gain advancements in environmental and
technological bases and widen the disparity between rich and poor nations. Mexico argued that the
MMPA was discriminatory in nature against like products based on their PPMs. This also indicated a
violation of Article XI in the prohibition of non-tariff restrictions or quotas which limit
import/export licenses.
The U.S. refuted Mexico’s contention that they had defied the National Treatment
obligation under Article III, as it applied fundamentally the same standard to imported tuna to like
domestic tuna. This contention was hollow, as there was no possible way Mexican fishermen could
know the acceptable incidental taking rate for their fleet until after the U.S. fleet had finished fishing.
This could have formed the basis for the MMPA violation of the National Treatment standard, yet
the GATT panel reached a broader holding. The hypothesis of the U.S. argument lay in the fact that
different treatment of tuna based on how they were caught, does not discriminate between them,
because products produced by different methods are not “like” products. This was rejected by the
panel. In its view, differences in the way that the tuna were caught could not possibly affect tuna as a
product. Mexico further claimed that the exceptions under Article XX (b) and (g) were not met,
focusing on the fact that Article XX cannot be applied outside the jurisdiction of the US. Agreeing
with this argument, the panel ruled in favour of Mexico.
The panel interpreted GATT in a manner that implied that any law restricting imports on
the basis of their process or production method would necessarily violate Articles III and XI unless
the PPM affected the physical characteristics of the product. The outcome of Tuna Dolphin I
eventually fell in favour of Mexico.
Tuna-Dolphin II
15
was filed by plaintiffs, the European Economic Community and the
Netherlands against the US in the claim that the latter did not possess any right to impose
embargoes on intermediary nations. The former argued that the intermediary nation embargo
constituted a quantitative restriction and thus violated Article XI of the GATT. For intermediary
nations, the MMPA outright banned the import of tuna if there was no proof of certification of zero
import of yellowfin tuna/tuna products from primary nation embargo. The US tried to seek
protection under Article XX (b) and (g) ‘relating to the conservation of an exhaustible resource’ and
‘necessary to protect the life and health of dolphins’.
16

The intermediary nations contended that the species requiring conservation had to be within
the jurisdictional territory of the enforcing nation who imposed said measure. More importantly,
they did not find dolphins an “exhaustible natural resource”. Finally, they contended that US
measures did not fall under the ‘necessity’ imposed by Article XX (b). Under Articles III and XI, the

15
GATT Panel Report, United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products, WT/DS381.
16
John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, HARV. ENVTL. L. REV., Vol. 28
(2004).


24
panel ruled in favour of the EEC and the Netherlands, but regarding jurisdiction, in favour of the
US because nothing in the GATT was found to amount to the conservation of resources
mandatorily being in the jurisdictional territory of the country enforcing the measure.
The examination of Article XX (b) and (g) by the panel led to the conclusion that the
banning of tuna would not in itself conserve dolphins, as only changes in actual policy could
accomplish this and this was not the original purpose of the GATT. The GATT was meant to deal
with products of member states, not their processes. In addition to this, the panel concluded once
again, that the US measures for dolphin protection were not ‘necessary’ meaning they were not
‘indispensable’ or ‘unavoidable’. The only way to protect dolphins would be for intermediary nations
to change policies, which was not the intention of the GATT.
The scheme employed by the US in attempting to force primary and intermediary nations in
banning tuna based on whether the practices of the latter were comparable to the former appeared
as though the US was forcing other nations to adopt their fishing policies which went against the
objectives of GATT. Hence, the panel ruled against the US again.
The Tuna-Dolphin disputes resulted in the manifestation of several US laws which restricted
the import of products harvested in an environmentally dangerous method, capable of being
incompatible with Articles I, III and XI of GATT. Much to the alarm of environmentalists, the
restrictions on imports founded on the characteristics of products as opposed to their PPMs seemed
to take precedence. This led to the proposal by environmental critics of the more practical, moderate
school to broaden the scope of likeness and revitalise the environmental exceptions in Article XX.
2. Asbestos - France
17

Canada challenged the French ban on the manufacture, sale and import of products
containing asbestos. The WTO panel accepted Canada’s argument that asbestos products are like
certain substitutes for those products made in France, and that banning imports of asbestos
products therefore provided them less favorable treatment in violation of the national treatment
standard in Article III of GATT.
18
The most significant stride in the analysis by the panel was the
decision not to account for the relative risk to human health of the asbestos products and of the
substitute products in determining whether they were like one another.
19
It said that because the
protection of human life and health is covered by Article XX (b), “introducing the protection of
human health and life into the likeness criteria would allow the Member concerned to avoid the
obligations in Article XX, particularly the test of necessity for the measure under paragraph (b) and
the control exerted by the introductory clause to Article XX”.
20
The Tuna-Dolphin mentality of the
panel was mirrored in this decision, and the panel followed the ‘characteristics over PPMs’ slant.
However, in a landmark decision by the Appellate Body, the panel’s analysis was overturned in light

17
WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, Sept
18, 2000, WT/DS135/R.
18
Id. at 8.154 - 8.158.
19
John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, 30, HARV. ENVTL. L. REV., Vol. 28
(2004).
20
Id.


25
of the “highly significant physical difference (between asbestos, which is carcinogenic, and
substitutes, which are not, ‘at least to the same extent’)” and that it was inexcusable how it was not
considered in the examination of the physical properties of a product as part of establishing
‘likeness’ under Article III.
The decision thus, opened the door for environmental considerations to be taken into
account in determining whether products are like. The panel determined that it satisfied Article XX
(b) because it was “necessary to protect human life or health”.
21
Although the Appellate Body’s
decision that the ban did not violate Article III meant that it did not need to reach Article XX, it
nonetheless upheld the panel’s interpretation of XX (b) on appeal. Canada’s contentions were that
the asbestos ban was not necessary as France had the option of pursuing alternatives which were less
inconsistent with GATT and strictly controlled dangerous use of asbestos. Post Tuna-Dolphin,
environmental critics had greatly feared just this form of argument that tribunals might uphold.
However, the Appellate Body said that “France could not reasonably be expected to employ any
alternative measure if that measure would involve a continuation of the very risk that [its ban] seeks
to ‘halt.’ Such an alternative measure would, in effect, prevent France from achieving its chosen level
of health protection”.
22
The Appellate Body emphasised that all “WTO Members have the right to
determine the level of protection that they consider appropriate in a given situation,” and noted that
France’s chosen level of health protection was a complete halt in the spread of asbestos-related
health risks.
23

The panel in Asbestos accordingly applied an interpretation of Article XX (b) such that if “an
alternative measure which the party could reasonably be expected to employ and which is not
inconsistent with other GATT provisions is available to it” and if no GATT-consistent measure is
reasonably available, the party is “bound to use, among the measures reasonably available to it, that
which entails the least degree of inconsistency with other GATT provisions.”
24
, ruling in a way that
quelled the fears of environmental critics.
A. DISPUTES UNDER SANITARY AND PHYTOSANITARY (SPS) AND TECHNICAL
BARRIERS TO TRADE (TBT) MECHANISMS
The Appellate Body can be lauded for its interpretation of minimum standards of TBT and
SPS Agreements such that they are consistent with moderate proposals on the function of
international standards, the right to set domestic levels of protection, and the burden of proof. This
can be seen by the growing trend to overrule panel decisions that would have denied governments
much leeway for consideration of non-trade interests.


21
Supra note 17.
22
WTO Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing
Products, Mar 12, 2001, WT/DS135/AB/R.
23
Id.
24
Id.


26
3. EC - Hormones
25

Most beef produced by the US is treated with hormones while EC produced beef is not. The
US claimed that the ban violates the SPS Agreement. The panel’s interpretations of the Agreement
effectively reinforced the fears of environmentalists. First, the panel said that the Agreement’s
requirement that parties base their SPS measures on international standards means that a measure
“needs to reflect the same level of sanitary protection as the international standard.”
26
It should be
noted that the panel did acknowledge that the Agreement provided that a party may adopt a more
protective measure than the international standard if it did so in accordance with the specified risk
assessment procedure. Yet the panel called this provision an “exception” to the general requirement
that parties adopt the international standard. The panel thereupon concluded that if a complaining
party showed that the general requirement is not met and the domestic measure is more protective
than the international standard, the burden of proof shifts to the defending party to demonstrate
that it adopted its measure in accordance with the risk assessment procedure.
27

The Appellate Body invalidated these interpretations. It rejected the panel’s view that the
SPS Agreement requires parties to adopt the same level of protection as international standards, and
declared that even if a domestic measure is not based on an international standard, the burden of
proof remains on the complaining party to show that the measure is inconsistent with the
Agreement.
28
The Appellate Body affirmed that the Agreement requires domestic measures with
higher levels of protection than relevant international standards to be based on a risk assessment,
29

but, on the recognition of the fact that scientific opinions can differ, the Appellate Body said that
parties need not only adopt measures consistent with the mainstream view in the scientific
community. Rather, “the results of the risk assessment must sufficiently warrant—that is to say,
reasonably support—the SPS measure at stake. The requirement that an SPS measure be ‘based on’
a risk assessment is a substantive requirement that there be a rational relationship between the
measure and the risk assessment.” The difficulty for the EC was that the scientific risk assessments
of the banned hormones had all concluded they were safe. Since the risk assessments did not
reasonably support a ban, the Appellate Body upheld the panel conclusion that the ban violated the
SPS Agreement.
30

4. EC - Sardines
31

Subsequently, the role of international standards under the TBT Agreement came under
the judicial microscope before the panel in European Communities-Trade Description of Sardines. Like the

25
WTO Appellate Body Report, European Communities - Measures Concerning Meat and Meat Products, Jan 16, 1998,
WT/DS26/AB/R.
26
WTO Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones), WT/DS26/R/USA.
27
Id.
28
WTO Appellate Body Report, EC - Measures Concerning Meat and Meat Products (Hormones), Jan 16, 1998, 104,
109, 165 WT/DS26/AB/R.
29
Id.
30
Id.
31
WTO Appellate Body Report, European Communities - Trade Description of Sardines, Oct 23, 2002,
WT/DS231/AB/R., DSR 2002:VIII, 3359.


27
SPS Agreement, the TBT Agreement mandates that parties use relevant international standards “as a
basis for” their domestic TBT measures except when the international standards “would be an
ineffective or inappropriate means for the fulfillment of the legitimate objectives pursued”.
32
The
panel interpreted the language “as a basis for” in accordance with the decision of the Appellate Body
in Hormones, but, as in Hormones, treated the requirement to use international standards as the general
rule to which the option of adopting more protective domestic standards is an exception, thereby
placing the burden of proof on the party defending a measure more protective than a relevant
international standard to show that the international standard would be ineffective or inappropriate
to meet the legitimate objectives of the party. This was reversed by the Appellate Body on the basis
of its reasoning in Hormones and again concluded that the burden of proof is on the complaining
party. Specifically, the burden is to show that the international standard was not used as a basis for
the domestic measure and that the international standard is effective and appropriate to fulfill the
legitimate objectives pursued by the defending party through the challenged measure.
33

5. US - Gasoline
34

The US-Gasoline Dispute was the first dispute that engaged “sustainable development”. Following
the Ozone Convention of 1985 and the Montreal Protocol of 1987, the US Environmental
Protection Agency promulgated a rule on the composition and emission effects of gasoline aimed at
the reduction of atmospheric pollution. The regulation contained two baseline regulations – the first
to be applied to domestic refiners and the stricter regulation applied to importers and blenders of
gasoline. Brazil and Venezuela contended that the rule was against WTO principles of “National
Treatment” and the TBT Agreement. The US refuted the same, claiming consistency with WTO
principles and sought protection under the invocation of Article XX (b), (d)
35
and (g). The panel also
found that conserving natural resources was not the sole purpose of the two differing baselines
prescribed by the US, thus nullifying protection under Article XX (g) and upheld that the measures
taken by the US were not justified. On appeal, this decision on Article XX (g) was reversed because
the Appellate Body found that the baseline regulations did indeed fall within the scope of Article XX
(g).
36
The Panel agreed that clean air could be considered an ‘exhaustible natural resource’ since it is
both “a resource (it had value) and ...natural”. However, the measure was still not justified by Article
XX because the discriminatory aspect of the measure constituted “unjustifiable discrimination” and
a “disguised restriction on international trade” under the chapeau of Article XX.
37


32
Id.
33
Id.
34
WTO Panel Report, United States - Standards for Reformulated and Conventional Gasoline, May 20, 1996,
WT/DS2/R, as modified by Appellate Body Report WT/DS2/AB/R, DSR 1996:I, 29.
35
“General Exceptions: necessary to secure compliance with laws or regulations which are not inconsistent with the
provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies
operated under paragraph 4 of Article II and Article XVII, the protection of patents, trade marks and copyrights, and
the prevention of deceptive practices”. General Agreement on Tariffs and Trade, Apr 15, 1994, Article XX (d), 1867
U.N.T.S. 187; 33 I.L.M. 1153 (1994).
36
WTO Appellate Body Report, United States - Standards for Reformulated and Conventional Gasoline, May 20, 1998,
WT/DS2/AB/R.
37
Id.


28
6. US - Shrimp
38

The US - Shrimp dispute showcases the future potential for cases to pervade the sphere of
WTO law. The essence of the case lay in the US prohibition of shrimp harvesting by methods that
were harmful to sea turtles. Similar to Tuna - Dolphin, it also prohibited the import of shrimp unless
the harvesting nation was certified as giving a regulatory programme for the conservation of sea
turtles. The US effected regulations which prohibited the import of shrimp from countries that were
not certified as having comparable conservation policies for endangered sea turtles or as coming
from shrimp boats with fishing devices which were capable of excluding turtles, also called ‘turtle
excluder devices.’ The US contended that its measures were justified under Article XX (b) and (g) as
Article XX did not have jurisdictional limitations nor limitations on the locations of animals or
natural resources to be protected and conserved. The Appellate Board primarily held that sea turtles
constituted exhaustible natural resources within the meaning of Article XX and the US measure
related to the conservation of an exhaustible natural resource thereby sanctifying the purpose of
Article XX (g). The subject scrutinised by the Appellate Board was whether the measures taken were
compatible with the Chapeau of Article XX and if the measures could be seen as unjustifiably
discriminatory, as this would push them far beyond the applicable boundaries of Article XX. The
Appellate Board stated that discrimination occurs either when a country where the same conditions
apply is treated differently, or when the application of the measure in question does not allow for an
inquiry into the appropriateness of the regulatory programme for the conditions prevailing in the
exporting countries. The US failed to enter into negotiations to conclude bilateral or multilateral
agreements for the protection and conservation of sea turtles. This was a fundamental pre-cursor to
the enforcement of import prohibition. Therefore, it was seen as unjustifiably discriminatory and the
import prohibition was not permissible.
While ultimately reaching the same finding on Article XX as the Panel, the Appellate Body,
however, reversed the Panel's legal interpretation of Article XX with respect to the proper sequence
of steps in analysing Article XX. The proper sequence of steps, as per the Appellate Body would be
to first assess whether a measure can be provisionally justified as one of the categories under
paragraphs (a)-(j), and, then, to further appraise the same measure under the Article XX chapeau.
It can thus be safely concluded that the AB has been responsive to the need of protecting
environment and hence open to upholding trade restrictive measures which meet the criteria laid
down in general exceptions. However, one common feature among all the cases mentioned above is
that the AB has stressed on ‘justification’ of the measure so imposed. If an equally efficacious but
less restrictive method is available, the measure so imposed has been struck down. On the contrary,
if the consequence on health, natural resources, plant and animal life is so severe that waiting for an
alternative is not justified, then the measure has been upheld. One such alternative method proposed
is for countries to enter into Multilateral Environmental Agreements, which diverge from GATT
principles but are increasingly gaining significance.

38
WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, Mar 3,
1973, WT/DS58/AB/R.


29
III. THE GATT-MEA CONFLICT
Multilateral Environmental Agreements (MEAs) are agreements entered into by three or more
parties and form an integral part of global framework. MEAs conflict with free trade on a routine
basis. The nature of these provisions appears to directly contradict WTO legislation. Another
significant feature of MEAs is their capacity to authorise trade in a specific product between its
parties, but ban trade in the same product with countries that have not signed the agreement. This
directly opposes the Most Favoured Nation-principle of GATT. This conflict of the objectives of
the MEAs and the GATT has remained one of the key issues in the trade-environment debate since
the early 1990s.
39

1. Trade Restrictions in MEAs
The term ‘trade measures’ could mean reporting requirement, labeling or other
identification requirement, export and/or import bans, ‘market transformation’ measures etc.
40

Trade measures that are explicitly described in the MEA or in subsequent decisions of the parties to
the MEA and which are mandatory obligations applied by all parties are called ‘specific measures’.
41

Measures which are not expressly described are also applied by parties to comply with MEA
objectives and are called ‘non-specific measures’. Trade measures are incorporated into MEAs to
monitor and control trade in products where the uncontrolled trade would lead to or contribute to
environmental damage. This may extend to a complete exclusion of particular products from
international trade; to provide a means of complying with MEAs’ requirements; to provide a means
of enforcing the MEA, by forbidding trade with non-parties.
42
Prominent MEAs are briefly
examined below.
2. Montreal Protocol, 1987
It contains rigorous trade restrictive measures applicable to both parties and non-parties to
the MEA. The Protocol restricts trade in ozone depleting substances as well as trade in products that
contain such substances. The trade restrictive measures have played a major role in reducing the
production and consumption of ozone depleting substances throughout the world.
43
By making the
trade measures of the Protocol applicable to non-parties as well, the MEA has addressed the free-
rider problem that would have arisen from the non-parties being able to circumvent them.
44
The
Protocol’s trade measures against non-parties oppose the GATT principles of Most Favoured
Nation, National Treatment and the Elimination of Quantitative Restrictions. The Protocol also
uses PPM-trade measures on the use of ozone-depleting substances. However, the measures can be

39
Eric Neumayer, Trade Measures in MEAs and WTO Rules: Potential for Conflict, Scope for Reconciliation, 55 (3)
AUSSENWIRTSCHAFT, 2 (2000).
40
DUNCAN BRACK & KEVIN GRAY, MULTILATERAL ENVIRONMENTAL AGREEMENTS AND THE WTO – A REPORT,
The Royal Institute of International Affairs and the International Institute for Sustainable Development, 4 (Sep 2003).
41
Id. at 5.
42
Id. at 6.
43
Robyn Eckersley, The Big Chill: The WTO and MEAs, GLOBAL ENVIRONMENTAL POLITICS, MIT, 14 (May 2004).
44
Working Paper, Robert Van Slooten, The Case of the Montreal Protocol, TRADE AND ENVIRONMENT: PROCESSES AND
PRODUCTION METHODS, OECD, 89 (2004).


30
protected under Article XX, as the ozone layer is an exhaustible natural resource and its depletion
adversely affects human, animal and plant life and health; there would not be any arbitrary or
unjustifiable discrimination since the Montreal Protocol is a multilateral instrument based on an
international consensus relating to the scientific assessment of what is necessary to protect the
ozone layer. Moreover, it contains provisions that exempt non-parties from trade restrictions if they
comply with the control measures under the Protocol and hence there is no arbitrary and justifiable
discrimination between countries where the same conditions prevail. There has never been a GATT
or WTO challenge to the Protocol’s trade measures.
45

3. Convention on International Trade in Endangered Species (CITES)
The CITES contains restrictions on the import and export of various threatened or
endangered species listed in its appendices. It has a number of enforcement-related trade measures,
directed against non-complying parties and non-parties. At the outset, the Secretariat of the CITES
endeavored for mutual support with the WTO, and adopted a five-year strategic plan which
included the objective of ensuring continuing recognition and acceptance of CITES measures by the
WTO and ensuring mutual support in decision-making processes.
4. Cartagena Protocol
There is a complete absence of conclusive scientific evidence concerning the risks to
humans, animals and plants associated with the transplantation of genes from one species to
another. This doubt has sparked the controversial political debate on who should bear the burden of
proof and by what standards. The Cartagena Protocol, 2000 is an effort to resolve questions related
to the trans-boundary movement of living modified organisms (LMOs). The Protocol places
restrictions on the trans-boundary movement, transit, storage and handling of certain LMOs which
are meant to be liberated into the environment. It requires the parties to apply the precautionary
principle in case of scientific uncertainty.
46
The Protocol, which thus serves to restrict the free flow
of trade in certain LMOs, may be applied against both parties and non-parties. However, trade in the
biotechnology industry is also governed by a number of WTO Agreements- most significantly, the
SPS Agreement. The SPS Agreement, extending to LMOs as well, enables parties to restrict or
regulate trade in order to protect human, animal and plant safety, provided such measures pass the
usual tests of non-arbitrariness, non-discrimination and least trade restrictiveness. Yet the risks
covered by the SPS Agreement are not as wide-ranging as those under the Cartagena Protocol,
resulting in a significant overlap of the two. Difficulties spring up when the risk assessment
provisions of the Protocol operate differently from the evidentiary rules of the WTO-SPS
Agreement. The Protocol enables the importing party to apply the precautionary principle when
carrying out its own risk assessment prior to the import of LMOs while the SPS Agreement allows
countries to set their own standards but provides that the measures should be based on objective
and accurate scientific data. The SPS Agreement only permits the precautionary principle to be

45
Supra note 43 at 15.
46
Cartagena Protocol, Jan 29, 2000, art. 1, 10 (6) and 11 (8), 2226 U.N.T.S. 208; 39 ILM 1027 (2000); UN Doc.
UNEP/CBD/ExCOP/1/3, at 42 (2000).


31
applied on an interim basis while a risk assessment is being conducted
47
whereas the Protocol
contains no such restriction.
48
Controversy in this context is not in any way a far-fetched matter as
the US is a major producer and exporter of genetically modified products and will hence be ever-
anxious to get rid of restrictions to the export markets.
The decision in Shrimp-Turtle suggests that the Appellate Board may uphold the Protocol if a
dispute involving the measures under the Protocol and the WTO agreements come before it.
However, this outcome is not assured and members of the Protocol have to conduct risk assessment
of LMO products of the US while toeing the fine line of political balance so as to avoid the US
challenging the WTO.
5. Convention on Biological Diversity (CBD)
The CBD does not sanction specific trade measures, though several of the issues it covers
such as access and benefit-sharing arrangements, alien species, incentive measures for the
conservation and sustainable use of components of biological diversity, provisions concerning
knowledge, innovations and practices of indigenous and local communities, impact assessment,
liability and redress, sustainable use, agricultural biodiversity may impact trade. The CBD also lacks
any language relating it to the GATT or WTO. Article 22 specifies that the CBD is not to affect the
rights and obligations deriving from existing international agreements, unless those rights and
obligations would cause serious damage or threat to biological diversity. The Convention predated
the WTO agreements that came into force at the end of the Uruguay Round, rendering this savings
clause inapplicable, and leaving any potential conflict to be resolved under customary international
law. The CBD does not predate the GATT itself however, so arguably the WTO dispute settlement
bodies could end up interpreting what constitutes serious damage or threat to biodiversity in the
case of a challenge under the WTO. Article 15 of the CBD permits states to limit or place conditions
on access to genetic resources, which could theoretically be inconsistent with the WTO, though
dependent on their design and treatment of foreign companies differently than domestic companies.
Article 27.2 of TRIPS may also potentially be troublesome, as it allows WTO members to exclude
patentable inventions for the purpose of protecting public order or morality, to protect human,
animal and plant life or health or to avoid serious prejudice to the environment. Article 27.3(b)
allows members to exclude plants and animals from being patented but prohibits members from
excluding micro-organisms, non-biological and microbiological processes from patenting. WTO
members may still exclude certain life-forms from patentability where it might interfere with a
country’s ability to preserve genetic resources or traditional knowledge. However, the area of
potential conflict is whether WTO members would be obliged to provide intellectual property
protection to plant parts such as cells or genes conferred in other jurisdictions by countries that have
allowed for such patentability, which would then have implications for access and benefit-sharing
regimes.
49


47
SPS Agreement, Apr 15, 1994, Article 5 (7), 1867 U.N.T.S. 493 .
48
David Wirth, MEAs in the Trade- Environment Debate, 3 B. U. L. REV., 38 (2004).
49
Ryan Winter, Reconciling the GATT and WTO with MEAs: Can We Have Our Cake and Eat it Too?, 11 COLUM. J. INT’L
ENVTL. L. & POL’Y, 223 (2000).


32
The conflict as a consequence, exists though it may be explicit or implied and arises only
when trade is likely to infringe the specific protection conferred by an MEA. Such conflicts
however, if not addressed at an early stage and in a precise manner, will only lead to increased
litigation. With this in mind, the author believes that the following can prove to be effective
solutions:
(i) Exemption of MEAs through Waivers:
Article IX of the WTO Agreement provides for a process of waiver, which can be used to
exempt MEAs from GATT rules. Through this, upon ratification, MEAs could be submitted to the
WTO for waiver. This would seem to legitimise MEA trade measures, and requires minimal reform
of the GATT/ WTO. However it may not succeed for all MEAs, especially those which have lesser
support. Waivers will be less possible for other MEAs among WTO Parties as the required three-
fourths majority would be difficult to attain. In any event, a waiver reinforces a hierarchy of the
WTO Agreements over MEAs
50
.
(ii) Amendment of the GATT:
GATT Article XX could be amended so that measures pursuant to an MEA could be
deemed a justifiable restriction on trade. Measures taken pursuant to the MEA would then be
necessary considering their objectives though it would still be up to a panel or the Appellate Body to
determine this and therefore in effect interpret the relevant MEA. In addition, any MEA trade
measure would still have to satisfy the additional requirements under the Chapeau of Article XX.
MEAs benefiting from this presumption would need to be identified in some way. One option
would be to list specific MEAs. In turn, the WTO dispute settlement system could defer
consideration of any dispute to the MEA mechanism, creating separate but equal regimes. This
would work most effectively where the MEA specifically deals with trade in a particular type of
goods or services (e.g. CITES, Montreal Protocol, Basel Convention, Cartagena Protocol). By
selecting particular MEAs, however, there may be concern about the impracticality of having to
amend Article XX or even simply agree an amendment to the list, every time a new MEA comes
into force. A counter to this solution would be that MEAs would then always be subordinate to
WTO obligations.
51

(iii) Change of Forum for WTO-MEA Disputes:
Disputes involving the MEAs and WTO may be resolved via a different authoritative
forum, such as the International Court of Justice (ICJ). The ICJ could then apply Principle 7 of the
Rio Declaration which says that “all States shall cooperate in a spirit of global partnership to
conserve, protect and restore the health and integrity of the Earth’s ecosystem”. If the complaining
party were a member of the MEA, the dispute could be referred to the mechanism under that
agreement, if there is one provided for by the respective MEA.
52


50
DUNCAN BRACK & KEVIN GRAY, MULTILATERAL ENVIRONMENTAL AGREEMENTS AND THE WTO- A REPORT, The
Royal Institute of International Affairs and the International Institute for Sustainable Development, 35 (September
2003).
51
Id. at 39.
52
Id.


33
(iv) A Global Environmental Organisation:
All the above solutions, as well as any discussion centered on the trade-environmental
confluence concern are permeated by the basic assumption or admission that GATT/ WTO is more
powerful than the MEAs. One reason for this view is that the international environmental
protection arena has no counterpart such as the GATT/ WTO. Although labeled ‘unrealistic’, the
creation of a Global Environmental Organisation would be to environment related restrictions on
trade, what WTO is to trade liberalisation. The only flipside to this solution is that it would be very
difficult to create such an organisation, as such an organisation would balance the disciplinary power
of the WTO
53

A. RECOMMENDATIONS
Notwithstanding the discussion above, the conflict between free trade and environment
protection exists. Inevitably, trade-environment conflicts have to be resolved with the import of
more environmental principles into trade jurisprudence. With the evolution of a greener outlook on
international trade disputes, the Appellate Body now appears to be one which prefers to stick
doggedly to the literal meaning of the text. This current approach can be lauded as being
uncontroversial and an evident path for a tribunal which seeks political support for its decisions, as
under principles of international law, the text of the agreement forms the root of decision-making.
However, in a legal sense, when the Appellate Body needs to look beyond the text, and discover
proof of political agreement, it can be criticised as using interpretative tools which are incoherent
and inconsistent in nature, as can be traced from their disputes over the years. A cleaner, and less
problematic solution, would instead be to rely on Article 31(3) of the Vienna Convention on the
Law of Treaties. Article 31(3) lays out the foundation to connect a treaty text to certain specialised
types of extra-textual agreements. Article 31(3) instructs the interpreter to take into account,
together with the context of the terms of the treaty:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
Invoking Article 31(3) can be viewed as being extremely advantageous in various ways.
Firstly, it relies on a method of interpretation which by itself mirrors a broad consensus, one which
the Appellate Body previously pledged to use. Article 31(3) would therefore be a more politically
amicable interpretative tool with all the States involved. Moreover, Article 31(3) could identify
agreements which are clearly relevant to the issue before the tribunal.
54


53
Robyn Eckersley, The Big Chill: The WTO and MEAs, GLOBAL ENVIRONMENTAL POLITICS, MIT, 45 (May 2004).
54
John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, HARV. ENVTL. L. REV., Vol. 28 (2004).


34
The issues in the application of Article 31(3) may center round the fact that each of the
three categories in Article 31(3) necessarily requires a specific connection between the extra-textual
agreement and the treaty text. Thus all the parties must acquiesce in some manner to the agreement
for the application of Article 31(3). Secondly, Article 31(3) does not prevent the parties from jointly
deciding that subsequent agreements may be relevant to interpretation even if not all of the parties
have adopted them. For example, the WTO Agreement allows the General Council to make
interpretive decisions on the basis of a three-fourths majority. Further, subsequent agreements,
whether reached expressly or through practice, may establish an interpretation of a treaty that is not
subject to challenge by states ratifying the treaty later. In other words, new parties have to take the
treaty as it is when they join it, including any interpretations of it already established under Article
31(3). In addition to this, rules of customary international law potentially relevant under Article
31(3)(c) may bind nations that have not specifically agreed to them, at least as long as the nations
have not persistently objected to their formation.
55

Subsequent practice establishing the agreement of the parties under Article 31(3)(b) need
not be by every party; the practice need only be accepted by all, and the acceptance can be tacit.
56

MEAs containing trade restrictions provide an example of such subsequent practice. From the early
1970s, when CITES was drafted and adopted, to the present, when it and other major MEAs with
trade restrictions have attained close to universal membership, the vast majority of GATT parties
have negotiated, signed, and ratified the MEAs without contemporary claims by other GATT parties
that the trade restrictions violate GATT.
Because Basel and CITES can only be consistent with GATT if Articles XX (b) and/or
XX (g) are not limited to protecting humans, animals, and natural resources within the jurisdiction
of the party imposing the trade restriction, the Tuna-Dolphin view of extra-jurisdictionality cannot
be correct. Subsequent practice therefore should have led to a decision in Shrimp-Turtle I that
measures taken to protect sea turtles outside the jurisdiction of the nation taking the measures are
within the scope of Article XX.
The application of Article 31(3) may curb the wide array of extra-textual agreements that
the Appellate Body could take into account. For instance, even the universally adopted Rio Principle
12, cited in Shrimp-Turtle I by the Appellate Body as ‘evidence of the preference of the international
community for multilateral approaches to environmental protection’
57
could be taken into account
only if they were “regarding” the text under review (in that case, GATT Article XX), or if they
reflected relevant customary international law. Principle 12 would not meet either requirement.
Political declarations are far more likely to meet the first criterion if they are made in the WTO
context. The WTO members’ consensus statement in the 1996 CTE Report that they support and
endorse “multilateral solutions based on international cooperation and consensus as the best and
most effective way for governments to tackle environmental problems of a trans-boundary or global

55
IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW, 636 (Clarendon Press, 1998).
56
T. O. ELIAS, THE MODERN LAW OF TREATIES, 76 (Kluwer Academic Publishers, 1974).
57
WTO Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products,
WT/DS58/AB/R.


35
nature” probably does qualify as a subsequent agreement under Article 31(3)(a), especially since the
following sentence of the report specifically refers to the need to ensure a “mutually supportive
relationship” between WTO agreements and MEAs. Article 31(3) would not, undeniably, be the
perfect solution. There exists no perfect interpretive solution. It would, however, provide a way to
consider whether particular extra-textual agreements may be taken into account in interpreting WTO
texts that is more predictable, more faithful to the most generally accepted interpretive rules, and
more likely to identify relevant agreements.
58

A general apprehension is that the expanding scope of the WTO will restrict the potential of
the MEAs and make them less effective, as the trade restrictions in MEAs may become vulnerable
to challenge before the WTO. This conflict has been examined extensively and several solutions
have been put forth, though practical and concrete steps are yet to be taken on this matter.
However, discounting the possible political reasons it may have for doing so, it can be
concluded that the jurisprudence of international trade has imbibed a greener slant over a series of
disputes. The constant discord between trade and the environment is undeniable, and the solutions
proposed coupled with the reading of Article 31(3), in the authors’ opinions, would as a minimum,
help sojourn this conflict.
6. CONCLUSION
The above analysis concludes that the judicial outlook of trade jurisprudence has gradually
evolved to address environmental concerns. The judicial search for political agreement has led
directly to greener decisions in two ways. Firstly, by reading the ordinary text, many of the
interpretations from cases like Tuna-Dolphin were done away with, as those interpretations were
based on the narrow view of panels regarding GATT objectives instead of a scrutiny of its plain text.
It was by reading the plain text that the Appellate Body pronounced their judgment with legislation
much more amicable to environmental concerns. Secondly, when the Appellate Body sought beyond
the text of the trade agreement, they discovered instances of political agreement in non-trade
contexts, including in international environmental instruments such as CITES.
It is imperative for international economic law to accord legal recognition to the inherent
value of non-economic objectives. WTO Panels have discernibly widened the definitions within the
legislation, such as ‘exhaustible natural resources’ to account for increasing environmental hazards.
Further, they have rationalised the legal review of national measures adopted to pursue such non-
economic objectives. As a result, States will be encouraged to pursue non-economic objectives in
response to environmental threats, as long as they derogate from their trade-related obligations in a
justifiable manner to the extent permitted by the GATT.
This presents a striking transformation in juristic mentality to validate and enforce national
measures necessary for the protection of the environment, thereby attempting to reconcile the
perpetual dissension between international trade and the environment.

58
John H. Knox, The Judicial Resolution of Conflicts Between Trade and the Environment, HARV. ENVTL. L. REV., Vol. 28.
(2004).

37
RIGHT TO INFORMATION: SHREDDING THE CURTAIN OF
SECRECY AROUND POLITICAL PARTIES
Tanya Choudhary
*

This article analyses the concept of transparency in politics and the merit of bringing political parties within
the ambit of India’s sunshine legislation viz. the Right to Information Act, 2005. The debate is prompted by the
recent decision of the Central Information Commissioner in Shri Subhash Chandra Aggarwal & Another v. Indian
National Congress and Others
1
which has declared the six major political parties of the country to be ‘public
authorities’ within the scope of the RTI Act. Though the order is correct in terms of the outcome, the reasoning
employed in reaching the conclusion suffers from several flaws. The article studies the existing regulatory framework for
political parties in India as well as the RTI laws of other jurisdictions in order to grasp the different ways in which
countries have previously extended their RTI laws to political parties. The article seeks to debate the potential social
and political consequences of such a move in India and offers a middle ground to remedy the stalemate between the
political parties and the civil society on the issue.
I. INTRODUCTION
Political parties are the sine qua non of modern democracies.
2
These are unique institutions
which “form the government, man the Parliament and run the governance of the country”.
3
Political
parties ought to serve as the link between the government and the people but the paradox of our
times is that political parties themselves are more often than not, the evil to be remedied.
A few decades into being a democracy, India witnessed criminalisation of politics, growing
influence of money and muscle power in elections and lack of internal democracy and transparency
in the functioning of political parties. To take an example of 1998 elections, the figures by the
Election Commission revealed that 1,500 out of approximately 14,000 contestants had previously
been convicted of grave offences such as murder, rape, robbery and kidnapping.
4
The candidates
contesting elections included a Member of Parliament who had murdered a local police officer by
throwing him in front of a running jeep and three others who had won the previous elections while
in prison.
5
The state of elections for the State Legislative Assemblies was no different. For instance,
Bihar State elections of 1987 witnessed 333 incidents of booth capturing with 66 shooting incidents
and 53 bomb explosions.
6
Corruption and criminals have thus become “as much a fixture in politics

*
III
rd
Year, B.A. LL.B. (Hons.), NALSAR University of Law, Hyderabad.
1
File No. CIC/SM/C/2011/001386 & 00083.
2
Molenaar, Fransje, The Development of European Standards on Political Parties and their Regulation, (Legal Regulation of
Political Parties Working Paper Grp. Paper No 4) available at http://www.partylaw.leidenuniv.nl/uploads/wp0410.pdf
3
LAW COMMISSION OF INDIA, 170
TH
REPORT ON REFORM OF THE ELECTORAL LAWS (2001).
4
N. Gunalan, Indian Criminals Contesting Elections, T Strait Times, Singapore, February 14, 1998.
5
Id.
6
Michael Hamlyn, The Troubled State of Bihar: Gangster grip in coal and politics, The Times, London, November 18, 1986.
38
as the white Gandhi cap”.
7
In the absence of any legislative intervention, political corruption and
other problems plaguing the national political life have gradually become so entrenched within the
system that they do not lend themselves to any easy solutions. In the past few years, the Indian
citizenry has been rattled by a string of political scams and corruption scandals including the
Commonwealth Games scam, allocation of 2G spectrum scam, Bofors Hawala scam, fodder scam
etc., each unraveling one after the other.
It is in this background that on 3
rd
June 2013, the full bench of the Central Information
Commission (hereinafter ‘CIC’) in Subhash Chandra v. Indian National Congress and Others
8
passed an
order declaring that the six major national political parties namely Congress, Indian National
Congress, Bhartiya Janata Party (BJP), Communist Party of India (Marxist) (CPM), Communist
Party of India (CPI), Nationalist Congress Party (NCP) and Bahujan Samaj Party (BSP) are subject
to the Right to Information Act, 2005 (henceforth will be mentioned as ‘The Act’). As per the
scheme of the Act, this order (i) placed an obligation on the political parties to proactively disclose
information to the public
9
and (ii) equipped the public with the right to demand answers from the
political parties about their source of funding, choice of candidates, election manifestoes among a
host of other issues (unless the information sought was covered by any of the exceptions under
Section 8 in which case the disclosure would not be mandatory).
The decision was instantly hailed by the public as a landmark judgement, which set a new
‘benchmark for transparency in political life’.
10
However, the political parties have since,
unanimously opposed the order in an uncharacteristic display of solidarity. In the few days after the
decision, political parties were found debating and evaluating every possible means to wriggle out of
the order. As a result, the Central Government finally tabled an amendment bill in order to exclude
all the political parties registered with the Election Commission from the ambit of the RTI Act.
11

Since the country finds itself in the midst of a ‘transparency versus non-disclosure’ debate, it is
pertinent to discuss and debate the pros and cons of bringing political parties within the ambit of the
RTI Act. To further this purpose, Part II of this article undertakes a critical, in-depth analysis of the
logical and legal tenability of the CIC’s order in Subhash Chandra v. Indian National Congress and Others.
Part III examines the possible social and political repercussions of bringing political parties within
the ambit of RTI. Part IV is a comparative evaluation of the RTI Act of India with the RTI laws of
other countries to appreciate the various approaches that different countries have adopted over the
years to subject political parties to transparency laws. Part V then examines the major challenges to
the idea of transparency in politics and Part VI comprises the conclusion which finally summarises
the entire debate and offers a way ahead.

7
John Stackhouse, Path From Prison to Power is Short in India in the Current Elections, Criminals have become as much a Fixture as
the Gandhi Cap, The Globe and Mail, Canada, February 21, 1998.
8
File No. CIC/SM/C/2011/001386 & 000838.
9
Right to Information Act, § 4 (2005).
10
Editorial, A New Benchmark for Transparent Politics, The New Indian Express, June 4, 2013.
11
Venkatesh Nayak, Non-Government Organisation Recognized as ‘Public Authorities’ under the Right to Information Act, 2005,
ACCESS TO INFORMATION PROGRAMME, COMMONWEALTH HUMAN RIGHTS INITIATIVE (2013).
39
II. SHRI SUBHASH CHANDRA AGGARWAL & ANOTHER V. INDIAN
NATIONAL CONGRESS AND OTHERS
The Right to Information Act is applicable to all bodies which fall within the definition of
‘public authority’ under Section 2(h)
12
without providing for an exhaustive list of such authorities.
Like the majority of litigation around the RTI Act, this case also dealt with the scope of the Act and
turned on the interpretation of Section 2(h). The term ‘public authority’, as defined under Section
2(h), has two components – (i) the first part of the definition refers to those bodies which have been
established/ constituted by or under the Constitution or statute (state and centre) or notification by
appropriate government (ii) the second part then goes on to widen the definition and includes within
its purview all ‘bodies owned, controlled or substantially financed by the government’.
13

Since political parties in India are clearly not established under the Constitution or any
statute, the primary question before the Central Information Commission in this case was whether
or not political parties are ‘public authorities’ under the second limb of Section 2(h). Their reply to
this question came in the affirmative, supported by a three pronged justification i.e. (1) political
parties are substantially financed by the government; (2) political parties perform functions of a
public nature and (3) constitutional/legal provisions vest political parties with rights and liabilities.
Each of these grounds will be individually analysed in the present section.
A. POLITICAL PARTIES ARE SUBSTANTIALLY FINANCED BY THE GOVERNMENT
The primary ground for bringing political parties within the ambit of ‘public authority’ under
Section 2(h) is that these are “substantially financed” by the government. Political parties in India
enjoy numerous financial privileges such as large tracts of lands/ houses free of cost or at
concessional rates, exemption from payment of income tax,
14
free air time on All India Radio and
Doordarshan as well as free electoral rolls during the time of elections,
15
all of which are instances of
indirect financing by the government.
The only question, which then remains to be answered, is whether or not this financing
amounts to ‘substantial financing’. Though the words “substantially financed” have nowhere been
described in the Act, in The Hindu Urban Cooperative Bank Ltd. v. State Information Commission and

12
Section 2(h):
“public authority” means any authority or body or institution of self-Government established or constituted-
(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or made by the appropriate Government, and includes any -
(i) body owned, controlled or substantially financed;
(ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate
Government.
13
Prabodh Saxena, Public Authority and the RTI, 13 EPW 44 (2009).
14
Income Tax Act, § 13A (1961).
15
Representation of the People Act, §§ 78A & 78B, (1951).
40
Others,
16
it was clarified that where a question of public funds is involved, the word “substantially
financed” cannot be interpreted narrowly by reducing it to percentages or mathematical values.
Accordingly, any financing which is not ‘trivial’ enough to be ignored as a pittance is to be termed as
‘substantial funding.’ This rationale has been cited with approval in many subsequent cases. For
instance, in Pradeep Bhanot v Chandigarh Club,
17
where Chandigarh Club received certain land from the
Chandigarh administration and paid a rent which was considerably lower than the commercial rent
prevalent in the market. This alone was enough for the court to hold that the Club was a ‘public
authority’ as it was being ‘substantially financed’ by the government.

The same view was upheld in a
plethora of other cases
18
which are not discussed in this paper for the sake of brevity.
B. POLITICAL PARTIES PERFORM DUTIES OF A PUBLIC NATURE
The second prong of the CIC’s order rested on the assumption that political parties perform
important “public functions” in a democracy and are therefore amenable to RTI. The court drew
this conclusion based on a single decision of Karnataka High Court in Bangalore International Airport
Limited v Karnataka Information Commission,
19
where the court was determining the applicability of RTI
Act to BIAL and it was observed that public authority is a “body which exercises public function for
the benefit of the public rather than for private profit, and it is this feature which distinguishes a
public authority from a private one.” This led the CIC to the conclusion that political parties which
perform functions of a public nature are ‘public authorities’ under the Act.
However, there is more than one flaw in this line of argument. First of all, even a cursory
glance at the Act would reveal that it does not mention a ‘public function test’ in the definition of
‘public authority’. The public functions test is employed instead, to determine the definition and
scope of ‘State’ under Article 12 of the Constitution and to determine the High Court’s power to
issue writs under Article 226. Interestingly, a string of judicial pronouncements categorically state
that the definition and scope of ‘State’ under Article 12 is completely separate from the definition of
‘public authority’ envisaged under the RTI Act.
20
The difference lies in the fact that right to
information was traditionally viewed as emanating from the freedom of speech and expression
under Article 19(1)(a) of the Constitution
21
and subsequently, its roots were traced back to Article 14
(equality before the law and equal protection of law) and Article 21 (right to life and personal liberty)
since transparency was sought to be used as a deterrent against unequal treatment and

16
(2011) ILR 2 Punjab and Haryana 64.
17
Shri Pradeep Bhanot v. Chandigarh Club, Chandigarh, CIC/LS/A/2010/001184.
18
Delhi Integrated Multi Model Transit System Ltd. v. Rakesh Aggarwal 2012(131) DRJ 537; Thalappalam Service Co-
operative Bank Ltd. v. Union of India AIR 2010 Ker 6; Tamil Nadu Road Development Company Limited v. Tamil
Nadu Information Commission AIR 2009 (NOC) 255 (Mad).
19
ILR 2008 KAR 3618.
20
The Hindu Urban Cooperative Bank Ltd. v. The State Information Commission, (2011) ILR 2 Punjab and Haryana
64.
21
State of UP v. Raj Narain, (1975) 4 SCC 428; S.P. Gupta v. Union of India, (1981) Suppl. SCC 87.
41
discrimination.
22
However, the scope of the right at that point continued to be limited to the extent
that it could only be exercised against the ‘State’. The purpose of RTI Act was inter alia to broaden
the scope of citizens’ right to information by not limiting it in terms of state but expanding it to any
‘body’ which qualifies to be a ‘public authority’ within the given definition. Therefore, CIC’s
interpretation is very difficult to reconcile with the language and the context of the Act.
Secondly, judicial decisions in the past have expressly rejected the public function test in the
context of RTI itself. In as recently as 2010, it was stated in Kul Bhushan Dania v Usha Kumari
23
that a
‘public function’ test cannot be read in as a criterion to judge whether or not a body is a public
authority when this has nowhere been explicitly mentioned under Section 2(h) of the RTI Act. The
obvious reason for this being that it is the prerogative of the popularly elected legislature to
formulate laws and it is not open to the judiciary to substitute its own will with the intention of the
legislature. Another case in point is Kuldeep Singh v. State of Punjab
24
where a school imparting
education and performing public function but not receiving any substantial grant-in-aid was held to
be beyond the scope of RTI.
25
In Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa
26
, the court
even refused to hear arguments about the nature of function performed by the bank, stating that
such a test is wholly irrelevant in the context of RTI. Similar view was voiced in National Stock
Exchange of India Ltd. v. Central Information Commission
.27
and several other cases.
Finally and most ironically, in the Bangalore International Authority case (which has been used
by CIC to support its conclusion) the Karnataka High Court itself did not apply the public function
test to the factual matrix before it. Instead, the case was solely decided on the touchstone of
‘substantial financing’ as the Court came to the conclusion that BIAL is substantially financed by the
government and therefore, qualifies to be a ‘public authority.’ Thus, the Court’s observation in
Bangalore International Authority case was nothing more than an obiter and it can be argued that the
intention was never to usher in a ‘public function test’ as an additional or even a supplementary
criterion to define the meaning and scope of the term “public authority”.
As a result, the CIC’s reliance on this judgment is wholly misplaced and it is not appropriate
to use the ‘public function’ test to decide whether a body is a public authority.
However, keeping legal precedents aside, one can make the argument that the Act should be
applicable to all bodies which perform public functions and not just those which receive
government funding.
28
This debate has been gaining momentum in recent years with the rise in
globalisation where government is delegating more and more of its activities to private organisations.

22
Secretary General, Supreme Court v. Subhash Chandra Aggarwal, AIR 2010 Delhi 159; S.P. SATHE, RIGHT TO
INFORMATION (2006).
23
Kul Bhushan Dania v. Usha Kumari, 2010 Indlaw CIC 27.
24
2011(2) RCR (Civil) 22.
25
Shonali Ghosal, Public Utilities Elude the RTI Net: The Cloak of Privacy Protects Companies, 8 TEHELKA (2011).
26
Krishak Bharti Cooperative Ltd. v. Ramesh Chander Bawa, (2010 (V) AD (Del) 405, W.P. (C) 6129/2007).
27
[2010] 100 SCL 464 (Delhi).
28
David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws,
PRIVACY INTERNATIONAL (2006).
42
It is often argued that failure to include such organisations within the Act will place substantial
amounts of government information outside the reach of the Act.
29

Though this argument carries considerable merit, there are certain fundamental difficulties
that the use of a public function test is likely to engender. First, there has never been any unanimity
among judges about what constitutes a “public function”.
30
In fact, the only point that remains
uncontested is that there cannot be a single test to define ‘public function’.
31
The evolving
jurisprudence on the definition of the State under Article 12 of the Indian Constitution and writ
jurisdiction of the High Court under Article 226 reveal that originally public functions were defined
in terms of the sovereign functions of the State. However, what these sovereign functions are
remains undefined and subject to change.
32
‘Sovereign functions’ can be confined to provision of
public security, protection of life and property or it may encompass a wide range of functions such
as sports, education, culture, transport, communication, religion etc.
33
In fact, the idea of sovereign
function is derived from the amorphous concept of sovereignty which has itself eluded consensus
among political and legal theorists since centuries.
34
Thus, to articulate a precise definition of ‘public
function’ is extremely difficult, to say the least. In such a case, using an undefined and vague
category of “public function” instead of a statutorily prescribed definition of “public authority”
would only give rise to unpredictability and uncertainty in the scope of the RTI Act.
Another argument against the use of this test is that it widens the scope of RTI a little too
far. There are a number of institutes like schools, hospitals which perform the public functions of
imparting education and providing health and medical facilities respectively but these cannot be
brought within the purview of the Act.
35
This is because the Act envisages transparency in the
functioning of public authorities by virtue of the fact that they receive and utilise taxpayer’s money
and should consequentially be accountable to the public irrespective of the functions that they
perform. In fact, a logical extension of the CIC’s argument would lead us to the conclusion that
even “gurdwaras should become public authorities since they serve langar, which is a public activity”
36
,
something which was clearly not envisaged by the Act.
37
What is ironical, though, is that this

29
Alasdair S. Roberts, Less Government, More Secrecy: Reinvention and the Weakening of Freedom of Information Law, 60 (4) PUBL.
ADMIN. REV. 298 (2000).
30
Public Corporations and Private Bodies that perform Public functions and/or receive Public Funds, (accessed July 25, 2013) available
at http://www.right2info.org/scope-of-bodies-covered-by-access-to-information/private-bodies-that-have-a-public-
character
31
Zee Telefilms Ltd. v. Union of India, (2005) 4 SCC 649.
32
Balmer Lawrie and Co. Ltd. v. Partha Sarathi Sen Roy, 2013 (2) SC T232 (SC).
33
For instance, Armenia provides for an expansive range of functions of ‘public importance’ including health,
education, communication et al. See generally, www.right2info.org.
34
Robert S. Gilmour & Laura S. Jensen, Reinventing Government Accountability: Public Functions, Privatization, and the Meaning
of "State Action", 58(3) PUBL. ADMIN. REV. 251(1998).
35
Kul Bhushan Dania v. Usha Kumari, 2010 Indlaw CIC 27; Krishak Bharti Cooperative Ltd. v. Ramesh Chander
Bawa, (2010 (V) AD (Del) 405, W.P. (C) 6129/2007).
36
Shonali Ghosal, Public Utilities Elude the RTI Net: The cloak of Privacy Protects Companies, 8 TEHELKA (2011).
37
Id.
43
statement criticising the ‘public functions’ approach for RTI was made three years ago, in 2011, by
Satyanand Misra – the person who headed the bench in the present case.
38


C. CONSTITUTIONAL/LEGAL PROVISIONS VESTING POLITICAL PARTIES WITH
RIGHTS AND LIABILITIES
The order states that the constitutional and statutory rights and obligations of political
parties reflect their public character, bringing them within the net cast by Section 2(h).
Unfortunately, even this third ground stated in the order is worth appreciating only for its ingenuity
and not for its legal merit. This is a new category magically conjured out of thin air as such a
parameter neither appears in the Act nor has any backing in judicial precedents.
39

What is more amusing is that political parties do not even squarely fall within this ingenious
category since the Constitution with its 385 articles does not once mention the words ‘political
party,’ much less lay down the rights and liabilities of political parties. This is unlike countries such
as Germany where the Constitution actually contains elaborate provisions for the establishment and
functioning of the political parties.
40
In India on the other hand, the only place where the word
‘political party’ finds a mention in the Constitution is in the tenth schedule, which was not inserted
into the Constitution until 1985.
41

Logically, such a new category also detracts from the rest of the definition. If a statute
conferring rights and obligations upon a body is sufficient to qualify that body as a public authority,
there is little point in retaining the first part of Section 2(h) which requires that a body, in order to be
public authority needs to be ‘established’ or ‘constituted’ and not merely recognised by the
Constitution/Statute. Similarly, the judicial interpretation of the second part of the definition that
the appropriate government should have a deep and pervasive control over the body and not merely
regulatory control
42
is rendered irrelevant if a body can be brought within the ambit of RTI simply
because a statute regulating its functioning confers rights and liabilities upon it.
Therefore, the decision of the CIC is not free from legal infirmities and two out of the three
prongs which form the basis of the order, are legally untenable. The only legally redeeming quality of
the judgment is that political parties are indeed ‘substantially financed’ by the government. This
ground alone is sufficient to bring political parties within the ambit of the definition of ‘public
authority’ under Section 2(h). Additionally, the prime significance of this order continues to lie in the
fact that it is a culmination of a long standing demand for greater transparency in politics.


38
Id.
39
Anirudh Burman, Transparency and Political Parties: Finding the Right Instrument, 48 (28) EPW 39 (2013).
40
LAW COMMISSION OF INDIA, 170
TH
REPORT ON REFORM OF THE ELECTORAL LAWS (2001).
41
The Tenth Schedule deals with the disqualification of a person as a member of either House of Parliament or the
Legislative Assembly on the grounds of defection.
42
Zila Sahakari Kendriya Bank Maryadit, Jagdalpur v. State Information Commission, 2011(4) MPHT 20.
44
III. THEORETICAL IMPLICATIONS AND SOCIAL REPERCUSSIONS
The opposite stance taken by the civil society and the political parties on the issue has
sparked off a rigorous public debate and discussion on the efficacy of the CIC order. This arises out
of speculations about the social and political consequences of bringing political parties within the
ambit of the Act.
Any attempt to argue for or against the decision would presuppose an appreciation of the
existing legal framework surrounding political parties. The political parties, as mentioned above,
largely fall outside the ambit of constitutional provisions. The Representation of the People Act of
1951 is the only piece of legislation that regulates some aspects of the functioning of political parties.
The political parties in India are exempted from paying tax under the Section 13(A) of the Income
Tax Act of 1961 but in return they are legally bound to maintain regular accounts, record and
disclose names of donors contributing more than Rs. 20,000 to the Election Commission.
43
Section
77 of the Representation of the People Act also places a limit on expenditure during elections to
control the influence of money in elections and to provide a level playing field to all those contesting
elections.
But these laws are of little practical utility since non-compliance with the legal requirements
does not invite strong penalties. This is perhaps why only 174 out of 1,196 registered parties have
submitted their annual reports regarding contributions to the Election Commissioner in 2010-11.
44

While the CPI(M) did not submit their donation report at all, Bahujan Samaj Party went to the
extent of claiming that the party had not received any donations above Rs 20,000 even though the
total income of the party was declared to be Rs 17267.84 lakhs.
45

In the same vein, the actual expenditure incurred during elections has no connection
whatsoever to the statutory maximum prescribed under the law. More often than not, the expenses
revealed are merely the tip of the iceberg. This was best highlighted when Member of Parliament
Gopinath Munde declared at a book launch function last year that he incurred an expense of Rs. 8
crores during his 2009 Lok Sabha Elections,
46
an amount which is several times the prescribed
statutory limit of 25 lakh rupees. In some cases such as the ceiling on expenditure, the law itself
provides an escape route by fixing a ceiling only in respect of the expenditure incurred or authorised
by the candidate himself while leaving out the expenditure incurred by the party or any supporter in
his election campaign.
47

In such a scenario, some might argue (and legitimately so) that RTI merely ensures
disclosure and transparency and so even if the disclosed information reveals serious concerns like

43
Representation of the People Act, § 29C, (1951).
44
N. Misra, Enforcing Clean Politics, New Indian Express, July 15, 2013.
45
Analysis of Income Tax Returns Filed and Donations Received by Political Parties, National Election Watch and Association for
Democratic Reforms (2002), available at http://adrindia.org/sites/default/files/Donations%20Report%20-%20FY-
2004-05%20to%202010-2011_0.pdf (Last visited 11 January, 2014).
46
Munde Admits Spending Rs. 8 Crore in 2009 polls, The Hindu, June 28, 2013.
47
Namit Oberoi, Reforming Election Funding, 1(1) NUJS LAW REVIEW 145 (2008).
45
money laundering, corruption, arbitrariness etc. that would just form the basis for a greater struggle.
However, the fact also remains that disclosure (as mandated by RTI) has proved to be a very
effective means of regulation in the past which cannot be underestimated. This was observed in the
context of environment when the United States passed the Emergency Planning and Community
Right-to-know Act in 1986 mandating corporates to disclose the extent of toxics that they release
into the atmosphere. The purpose of the law was only forced disclosure and it did not prescribe any
upper-limit on the pollution. Nevertheless, it was found that within six years the toxic levels fell by
44 per cent, a decrease not easily achievable by any statute on environmental protection.
48

Often termed as “regulation by revelation,” this mechanism mobilises the ‘power of shame’
49

and the pressure of public opinion to achieve effective results. As Jeremy Bentham would say, “the
more strictly we are watched, the better we behave”.
50

Having proved its merit in the context of environment, RTI is most likely to result in
effective regulation of political parties since there is no other body on which the pressure of
maintaining a favourable public opinion is as severe as that on political parties. The very existence of
political parties and their entire agenda of grabbing political power hinge on public perception of the
party and the constant threat of losing people’s confidence and support during elections is likely to
compel political parties to exercise self-restraint. This is precisely why laws demanding public
disclosure are likely to be more effective than electoral laws for remedying corruption and
establishing political accountability.
51
This assertion is further fortified by the fact that the need for
transparency to improve the functioning of political parties has also been previously acknowledged
by innumerable reports such as the 170
th
Law commission in 2001
52
and the 2002 Report of the
National Commission to Review the Working of the Constitution
53
which recommended that the
records of political parties should be properly maintained, audited, submitted to the Election
Commission and this information should be made public. A similar view was expressed by the
Election Commission on Proposed Electoral Reforms in 2004
54
when it insisted on full public
disclosure of the income and expenses of political parties. This is in fact, a good opportunity for
political parties to improve their legitimacy and strengthen their relations with the public.
55
Another
obvious advantage of using the Act to usher in transparency in the functioning of political parties is
that it obviates the need to invent a new cog in the wheel as the desired goals can be achieved within
the existing legal mechanism.

48
Ann M. Florini, Increasing Transparency In Government, 19(3) INT. J. WORLD PEACE 29(2002).
49
Jonathan Fox, Uncertain Relation between Transparency and Accountability, DEVELOPMENT IN PRACTICE 17, NO. 4 (2007):
663.
50
Taeku Lee and Sina Odugbemi, How Can Citizens Be Helped to Hold Their Governments Accountable?, in ACCOUNTABILITY
THROUGH PUBLIC OPINION: FROM INERTIA TO PUBLIC ACTION 415 (Taeku Lee and Sina Odugbemi eds., 2011).
51
Simeon Djankov et al., Disclosure by Politicians, 2(2) AM. ECON. J.: APPLIED ECONOMICS (2010).
52
LAW COMMISSION OF INDIA, 170
TH
REPORT ON REFORM OF THE ELECTORAL LAWS (2001).
53
REPORT OF THE NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION (2002).
54
ELECTION COMMISSION OF INDIA, PROPOSED ELECTORAL REFORMS (2004).
55
Dolly Arora, State Funding of Elections: Some Posers, 35 (37) EPW 3284 (2000).
46
But on the other side of the spectrum, arguments against disclosure abound wherever and
whenever disclosure is sought.
56
Political parties have vociferously opposed the decision on the
ground that it opens up great possibilities of misuse. Parties fear that they will be inundated with
requests, sometimes even false and vexatious requests made with a political motive bringing the
actual work of the party to a standstill. This argument though not entirely baseless, is untenable for
numerous reasons. First, RTI Act provides adequate safeguards and in-built protections to avoid
such a scenario. RTI mandates proactive publication of certain information which means that a large
part of the information is already placed in the public domain, substantially reducing the volume of
individual requests.
57
Second, RTI does not require the public authorities in question to go hunt for
information every time a question is put in front of them. It demands disclosure of only that
information which has been duly recorded. Where information sought was not a part of record and
is not required to be recorded under any law, political party will be under no obligation to collect or
collate such non-available information and then furnish it to an applicant.
58
Third, and this was the
ground why the argument of the political parties was dismissed in the Subhash Chandra case, is that the
validity of a statute cannot be questioned only on the basis of a possibility of its misuse. Finally, even
if it is accepted that it involves risk of abuse, it needs to be appreciated that the right to information
is a right of wide amplitude which lies at the core of democracy, freedom of speech, free and fair
elections etc. and so even on a sheer cost-benefit analysis, “it is better to leave a few of its noxious
branches to their luxuriant growth, than, by pruning them away, to injure the vigour of those
yielding the proper fruits.”
59

Another argument often raised is that the political parties are already disclosing information
to the Election Commission and the Income Tax Authorities under the existing electoral laws and
the present decision will only cause multiplicity of accountability agencies. First, the inadequacy of
the existing mechanism and framework of law hardly needs to be overemphasised. Electoral laws
mandate disclosure of only limited information and provisions such as the disclosure about
campaign expenses apply only during elections. The RTI on the contrary, is premised on the belief
that democracy is not just about people coming to vote once in five years and then retreating into
the background as passive spectators. There needs to be continuous engagement and free flow of
information between the governors and the governed. The argument is also untenable since the RTI
laws of no country exist in a vacuum. RTI law generally forms a part of the broader framework of a
host of other legislations which simultaneously regulate the functioning of the political parties. The
best example of the point being made is Nepal
60
where the RTI mandates disclosure from political
parties while a host of other legislations like Political Parties Act of 2002, Election Commission Act

56
Ann Florini, The Battle Over Transparency, THE RIGHT TO KNOW: TRANSPARENCY FOR AN OPEN WORLD 1, 1 (Ann
Florini ed. 2007).
57
David Banisar, Freedom of Information Around the World 2006: A Global Survey of Access to Government Information Laws,
PRIVACY INTERNATIONAL (2006).
58
Khanapuram Gandaiah v. Administrative Officer, AIR2010SC615.
59
Romesh Thappar v. State of Madras (1950 SCR 594).
60
Sanjeeb Ghimire, Reforming Political Parties in Nepal: The Role of the Right to Information, TOWARDS OPEN GOVERNMENT
IN NEPAL 223, 225 (2011).
47
of 2007 etc. require political parties to maintain records, submit annual budgets, disclose donations
above NPR 25,000,
61
and report campaign expenses.
62
This would be further elucidated in the next
section that provides an in-depth evaluation and comparison among the RTI laws existing in other
jurisdictions.
IV. COMPARATIVE EVALUATION: RTI LAWS IN OTHER
JURISDICTIONS
Sweden has the distinction of being the first country in the world to enact a freedom of
information act way back in 1776.
63
Thereafter, it took another century before the other countries of
the world began recognising the citizen’s right to information. The growth of such laws was very
slow as less than twenty countries had passed RTI laws till 1995. However, the right to information
movement has gained pace over the last decade and nearly sixty countries have come up with RTI
laws within a span of fifteen years, from 1995 to 2010.
64

This massive proliferation of right to information laws across the globe is generally
attributed to the spread of democracy.
65
A democratic government derives its legitimacy from the
will of the people, and the government is understood as a representative or an agent of the public
(principal). This principal-agent relationship has given rise to the presumption of transparency as it is
being increasingly acknowledged that public as the principal has a ‘right to know’ about the activities
carried on by the agent on its behalf. Thus, the right to information laws emerged with its
requirement of proactive public disclosure of information in order to overcome the information
asymmetric between the rulers and the ruled.
66

In India on the other hand, the RTI emerged not so much as a result of a rise of democracy
in 1947, as the failure of representative democracy at multiple levels
67
in the form of widespread
political corruption, economic deprivation, environmental concerns etc. which motivated the people
to unite for a right to information movement, finally culminating into the RTI Act of 2005.
But irrespective of the country or the history, the standard features of a right to information
law are generally the same- a presumption of openness, the requirement for suo motu disclosure,
obviating necessity for legal standing, procedure for disclosure and a nodal agency for
implementation. One point, however on which RTI laws of different countries show considerable
diversity is the coverage of the Act.

61
Political Party Act, (2002).
62
Election Commission Act, (2007).
63
Jaytilak Guha Roy, Right to Information: A Key to Accountable and Transparent Administration, CONTEMPORARY DEBATES
IN PUBLIC ADMINISTRATION, 312 (Alka Dhameja ed. 2004).
64
Shekhar Singh, The Genesis and Evolution of the Right to Information Regime in India, TRANSPARENT GOVERNANCE IN
SOUTH ASIA, 3 (2002).
65
David Banisar, Freedom of Information and Access to Government Records Around the World, PRIVACY INTERNATIONAL
(2002).
66
Ann M. Florini, Increasing Transparency in Governance, 19(3) INT. J. WORLD PEACE 3, 14 (2002).
67
Shekhar Singh, The Genesis and Evolution of the Right to Information Regime in India, TRANSPARENT GOVERNANCE IN
SOUTH ASIA (2002).
48
It is interesting to note that like India, a few countries have previously sought to extend their
RTI laws to political parties in the interests of transparency and cleanliness in public life, albeit in
different ways. These approaches can be categorised into three different categories. First, the RTI laws
of certain countries explicitly list political parties within the definition of “public body”/“public
authority”. Second, in certain other cases the transparency laws have been extended and applied to
political parties pursuant to judicial pronouncements. A third method of achieving this is by means of a
special provision in the right to information law devoted to political parties. This section undertakes a
detailed analysis of the pros and cons of all these three conceptual categories.
A. EXPLICIT INCLUSION OF POLITICAL PARTIES AS A PUBLIC BODY UNDER THE
ACT
It should come as no surprise that there are very few countries in the world (Poland, Nepal)
where political parties are explicitly listed as a public body/ authority to which the RTI Act is
applicable. In such countries, the RTI Act places all public bodies including the political parties
under the same obligations of proactive disclosure and providing access to information. This is
completely different from the RTI Act of India which does not specifically enumerate the public
bodies covered under the Act. Furthermore, unlike India, both Nepal and Poland have incorporated
citizen’s right to information as a formal explicit constitutional right.
68

The RTI Act of Nepal is a fairly standard right to information law, barring a few provisions
which are really progressive such as the scope of the Act itself. The Right to Information Act of
Nepal is applicable to all ‘public bodies,’ (a term defined under Section 2) which explicitly includes
political parties and even non-governmental institutions which receive funding from the
government.
The fallback of such an approach and perhaps one of the many reasons the implementation
of the RTI Act in Nepal is only ‘modest’
69
is that by bringing NGO’s and political parties within its
ambit, the Act places them in the same position as the government. Thus, NGO’s and political
parties have no incentive to demand disclosure or play an active part in the implementation of the
Act. Their non-compliance with their own obligations further erodes their moral authority to seek
disclosure from other public agencies under the Act.
70
A few examples will highlight the point being
made. Till 2011, no political party in Nepal had appointed a Public Information Officer to provide
information as mandated under the Act.
71
Frequent disclosures are made only during the time of
elections. Parties like Community Party of Nepal – Maoist (CPN-M) and Communist Party of Nepal
(CPI-UML) practice “democratic centralism” wherein the central party leadership maintain their
stranglehold over all key information and decisions and only information of a routine nature is

68
NEPAL CONST. of 1999, art. 16.
69
The World Bank, Implementation of the Right to Information in Nepal: Status Report and Recommendations (Jan 31, 2011)
http://www.freedomforum.org.np/content/attachments/article/114/RTI-Report-Nepal%20_World_Bank.pdf
70
Id.
71
Sanjeeb Ghimire, Reforming Political Parties in Nepal: The Role of the Right to Information, in TOWARDS OPEN
GOVERNMENT IN NEPAL 223, 225 (2011).
49
disclosed to the lower levels.
72
This reveals the dangers of giving an over-expansive coverage to the
RTI laws which might make the provision counterproductive and potentially self-defeating.
So though an explicit provision in the Act to cover political parties seems and probably is very
progressive, it has not worked well in practice. In Nepal both the demand and supply of information
under the RTI remains low.
73
Since RTI is a unique act whose success largely depends on the people of
the country primarily the civil society, media and political parties - in Nepal the law benignly lies in the
statue books due to the lack of political will to implement the Act and the lackluster attitude of the civil
society.
The situation in Poland is likewise, where though the Access to Public Information Act, 2001
allows access to information held by- public bodies, private bodies that exercise public tasks, trade
unions and political parties- the mechanisms for the enforcement of the Act are relatively weak.
74
Thus,
widespread corruption, political patronage and scams exists involving top political leaders despite the
legislation.
75

B. JUDICIAL INTERVENTION TO APPLY TRANSPARENCY PROVISIONS TO POLITICAL
PARTIES
There is a second category of countries such as Mexico and Canada and now India, where
the RTI Act does not make any direct reference to political parties, but the transparency laws have
been applied to political parties through judicial pronouncements. Mexico will serve as the best
example of the point being made.
The Federal Transparency and Access to Government Information Law of Mexico does not
expressly list political party as a public body.
76
However, the first two major cases that arose about
the application of this law, revolved around political parties.
77
The first case was brought in 2002 by
a newspaper journalist who approached the Federal Electoral Institute (the body that audits the
accounts of political parties in Mexico) to reveal details of salary of officials of political party.
78
Upon
the Institute’s refusal, the journalist approached the Federal Tribunal and in the case, which ensued
the tribunal, used Article 6 of the law- the presumption in favour of transparency- to hold that
political parties are political associations, which receive substantial public funds. They accordingly

72
Id.
73
Id.
74
Patrycja Joanna Suwaj, Difficulties with Implementation of Conflict of Interest Regulation in Polish Local Government, COMBATING
CONFLICT OF INTEREST IN LOCAL GOVERNMENTS IN THE CEE COUNTRIES LOCAL GOVERNMENT AND PUBLIC
SERVICE REFORM INITIATIVE 147, (Barbara Kudrycka ed. 2004).
75
Krzysztof Jasiecki, Regulating lobbying in Poland: Background, scope and expectations, COUNCIL OF EUROPE (2006) available at
http://www.coe.int/t/dghl/cooperation/economiccrime/cybercrime/cy%20activity%20interface2006/143%20_200
6_-if-rep%20jasie.pdf
76
David Banisar, Freedom of Information and Access to Government Records Around the World, PRIVACY INTERNATIONAL
(2002).
77
Eric Heyer, Latin American State Secrecy and Mexico’s Transparency Law, 38(2) GEO. WASH. INT’L REV.437 (2006).
78
ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE 6-8 (2006).
50
ought to be subjected to public scrutiny.
79
The court also relied on the international covenants like
International Covenant on Civil and Political Rights and American Convention on Human Rights to
state that the citizen’s fundamental right of suffrage, political association and political affiliation
requires that they be given access to information about political parties, their monetary resources,
organisation and internal regulations.
80

Another similar example of the judicial intervention can be found in Canada in Phinjo Gombu
v. Tom Mitchinson,
81
where an investigative reporter approached a court in Ontario and got the
declaration that public should have access to electronic database of the campaign contribution
records in the municipal election. The court recognised that there was a public interest involved in
public scrutiny of political parties and election process which overwhelmingly outweighs any other
competing interest.
82

These cases are very similar to the Indian position with the only substantial difference being
that in Mexico, all the major political parties proactively published information about their salary on
their website within a week of this decision.
83

C. SEPARATE PROVISION FOR POLITICAL PARTIES IN THE RTI ACT
A third and rather innovative approach has been adopted by Indonesia, Ecuador, Bulgaria
and a few others where political parties are explicitly mentioned in the RTI Act but the extent of
information sought from political parties is less than what other public authority are required to
disclose. This is achieved by crafting a separate provision in the RTI Act for political parties.
For example, Indonesia’s Public Information Disclosure Act of 2008 creates four categories
of public bodies and political parties form one such category.
84
This is starkly different from the
single category of ‘public authority’ under the RTI Act of India which is defined under Section 2(h).
In Indonesia, the Act mandates political parties to suo motu reveal certain information,
primarily related to public programs, decision-making procedure and management and use of funds
from the Budget of the State
85
which is less than the information that the other category of public
body need to furnish.
86


79
Zarate v. Federal Electoral Institute, Case SUP-JDC-041/2004.
80
Id.
81
59 O.R. (3d) 773 (2002).
82
Open Society Justice Initiative, Written Comments on the Case of Geraguyn Khorhurd Patgamavorakan Akumb v. Armenia,
(2006) available at http://www.right2info.org/resources/publications/GeraguynKPAvArmeniaOct06amicus.pdf.
83
ALASDAIR ROBERTS, BLACKED OUT: GOVERNMENT SECRECY IN THE INFORMATION AGE 6-8 (2006).
84
Muhammad Taufiq, Policy Implementation of Information Disclosure in Indonesia: Challenges and Responses,
UNITED NATIONS PUBLIC ADMINISTRATION NETWORK, available at http://unpan1.un.org/intradoc/groups/public
documents/un-dpadm/unpan047568.pdf
85
Public Information Disclosure Act, art. 15 (2008).
86
For further example, see Article 16 of the Ecuador, the Organic Law on Transparency and Access to Public
Information which contains a separate provision for political party. The provision imposes an obligation on every
political party benefitting from state funds to electronically publish their annual reports about the detailed use of such
funds.
51
Such a limited application of RTI laws to political parties and civil society actors stems from
several factors. First and the more conventional explanation is that freedom of information laws are
a part of the broader category of human rights,
87
and human rights were traditionally perceived only
within the framework of the state. To that extent, it imposes obligations on the state actors only.
88

On another level, such an approach is based on the understanding that there are only some
activities of the political parties that directly affect public interest, such as those undertaken with the
help of public funds and accordingly, public has a right to have access to information about such
activities only. Such a rationale also emerged from a South African judgement when a High Court
dismissed the request for public disclosure of donation records of political parties.
89
The court’s
decision was based on the understanding that when political parties receive donations from
independent private sources, they are not performing any pubic function, nor exercising any power
as a public body under the Constitution or any legislation. So, political parties are not public bodies
in so far as disclosure of their donation records is concerned.
90

This is also evident in Bulgaria’s Access to Information Act which states that political parties
are ‘obliged bodies’ to disclose information but only to the extent of those activities which are
financed out of the consolidated state budget or for which funds are received from the European
Union or as a part of EU projects and programs.
91

This approach is in many ways, superior to the Indian position wherein once a body is found
to be substantially financed by public funds, it is declared a public authority and then the entire
repository of information with the body is subject to public disclosure and public scrutiny (unless
specifically exempted under Section 8). This fails to take into account that a body can have both
public and private character and when it is not indulging in any public activity or performing
functions using public funds/taxpayer’s money, it should not be subjected to unwarranted public
gaze. The first criticism and apprehensions over the Subhash Chandra order is also from the
standpoint that a political party competes with the other political parties for political space and
power, in a similar way as a large company competes with the others in a competitive economic
market. To that extent, parties have the right to keep some of the activities hidden from the public
view not because the activities are illegal but for the simple reason that disclosure may be
detrimental to its future prospects.
92

Analysing these three models in the context of India would reveal that broad requirements
of disclosure required under RTI might be a progressive step to take but not practically
implementable and even the intervention of judiciary is unlikely to produce effective results in the

87
Misra Hidayani Napu, Towards a Better Regulation of Indonesia’s Public Access to Information (2012) (unpublished
Master’s Thesis, Tilburg University).
88
Bunga Manggaiasih, Pushing For the Right to Know: Understanding the Indonesian Mass Media Support for
Freedom of Information Bill (2012) (unpublished Master’s thesis, Institute of Social Studies).
89
Institute for Democracy in South Africa and Others v. African National Congress [2005] ZAWCHC 30; 2005 (5) SA
39 (C) [2005] 3 All SA 45 (C).
90
Id.
91
Access to Public Information Act, art. 3(2)(2) (2000).
92
Anirudh Burman, Transparency and Political Parties: Finding the Right Instrument, 48 (28) EPW 39 (2013).
52
absence of political will to implement the Act. In such a case, the approach adopted in countries like
Bulgaria, Indonesia etc. offers a useful alternate wherein a mutually acceptable level of disclosure can
be reached from the point of view of both citizens’ rights and political parties.
V. POLITICAL RESISTANCE: GREATEST CHALLENGE TO
TRANSPARENCY
On the strength of the foregoing discussion about the merits of the RTI, the one
unassailable truth which emerges is that – “Knowledge if not power, is definitely the first step in the
direction of attainment of economic and political power.”
93
It is then hardly surprising that “secrecy
is as difficult to eradicate as the evils which it spawns.”
94

Freedom of information laws irrespective of the time and country, have always faced stiff
political resistance. After Sweden became the first country to enact RTI law in 1766, nearly two
centuries elapsed before any other country adopted the transparency law. To take an example closer
home, in India the citizen’s right to information was first declared to be a fundamental right in 1975,
which was followed by a plethora of decisions by the apex court of the country. But this failed to
move the Government of India and it was only after a decade of struggles, civil society movements,
toothless legislative bills and drafts that the Right to Information Act as we know it today, was
passed in 2005. What finally serves as a driving force in all these situations is the ultimate realisation
among political parties that such an Act will serve a useful purpose when they are not in power as it
would empower them to maintain a check over the political party which forms the government. But
what happens when transparency is demanded in the functioning of all the political parties (whether
or not they become a part of government)?
History is replete with instances where the government has overturned the judicial decision
which went against the pursuit of their own self-interest. The first set of amendments to the RTI
Act came within six months of the passage of the Act by which the scope and power of the Act was
considerably weakened. The proposed amendments exempted from public scrutiny file notings,
documents ‘under process’, documents related to competitive processes such as examinations and
documents recording the material basis of Cabinet decisions.
95
Similar attempts have also been made
when the judiciary tried to subject the Central Bureau of Investigation (CBI) to the RTI Act over
allegations that officials in the Bureau had amassed disproportionate assets. The legislature
immediately responded by inserting CBI to the schedule of entities that fell under Section 24 that
deals with exemption.
96


93
Ann Florini, The Battle Over Transparency, in THE RIGHT TO KNOW: TRANSPARENCY FOR AN OPEN WORLD 1, 1 (Ann
Florini ed. 2007).
94
John McMillan, Freedom of Information in Australia: Issue Closed, 8 FEDERAL LAW REVIEW 379 (1976-77).
95
Amita Baviskar, Winning the Right to Information in India: Is Knowledge Power?, CITIZEN ACTION AND NATIONAL POLICY
REFORM: MAKING CHANGE HAPPEN 201 ( J. Gaventa and R Macgee eds. 2010).
96
Mukul Mudgal, Sunlight on the CBI, The Indian Express, Jun 28, 2011.
53
In such cases, generally the political parties in the opposition can be relied upon to create a
massive uproar and build pressure on the government in power by exposing their hypocritical
stance. However, even that is unlikely to happen in the current situation where all the political
parties are unanimous and complicit in their stand to overturn the decision that empowers the
people. The irony of the situation is most sharply defined in United Progressive Alliance’s (UPA)
reaction to the judgment. UPA which, until recently was basking in the glory of spearheading the
progressive piece of legislation called RTI is now trying to wriggle out of a law which is its own
creation. Congress has termed the order as an “adventurist approach” which would get political
parties entangled in “unnecessary things.”
97
Similarly, BJP which was all set to raise corruption and
black money as a huge issue in the elections, initially expressed its support for the decision but then
quickly changed its course to argue that there was lack of clarity on several issue such as the roles of
the Election Commission and CIC in regulating affair of political parties.
98
It also failed to comply
with the CIC order subsequently much like the other five political parties.
99
Evidently, the “ethics of
rule following is insisted only to the extent that it applies to the other people,”
100
and does not harm
the pursuit of their own self or collective interest. Is clean, healthy politics then an unrealisable
dream?
VI. CONCLUSION
Political parties are private associations operating in the public domain which form the basis
of democracy. Conventionally, electoral laws such as the Representation of the Peoples Act of 1951
have governed aspects of functioning of political parties. This emphasis on state regulation has
however, now given way to the realisation that citizens should occupy the centre stage in a
democracy and all political parties should be accountable to the people. It was in this context that
the ‘the right to information’ emerged as an offshoot of the fundamental right to speech and
expression, first by judicial expositions and finally, by a legislative intervention in the form of the
RTI Act as the political leaders agreed to the symbolic qualities of open government and greater
engagement with the public. But as the common history of Nepal, Poland and India demonstrate,
the consequence of such a law in terms of exposure to the wrongdoings of politicians and subjecting
them to continuous public scrutiny, has always affected the political will to enforce the law.
The judiciary on the contrary, has emerged as the champion of citizen’s rights by taking a
proactive and positive stance towards the ‘right to information,’ at times even by stretching the law
to respond to the exigencies of the hour. The decision in Subhash Chandra, running into fifty four
pages is among the lengthiest decisions rendered by the CIC since its inception in 2005. In addition
to giving effect to the longstanding demand of the public, this order also gives us a glimpse of the
hitherto unknown potential and expanding utility of the RTI Act. Admittedly, the decision cannot
serve as a panacea for all the problems plaguing the political life of the country. For one, RTI Act

97
Aarti Dhar, Parties Reject CIC order on RTI, The Hindu, Jun 5, 2013.
98
Congress, CPM reject CIC’s order to bring them under RTI, BJP sees no wrong, The Times of India, June 4, 2013.
99
Mohammad Ali, CIC puts 6 Parties on Notice for Not Implementing RTI, The Hindu, February 11, 2014.
100
UPENDRA BAXI, CRISIS OF THE INDIAN LEGAL SYSTEM 7 (1982).
54
requires disclosure of only that information which has been recorded. Thus, when political parties
issue coupons instead of receipts for cash donations or spend crores of rupees on elections without
making a record, these unaccounted transactions would largely remain outside public scrutiny.
Furthermore, most understandings which shape the activities and organisation of political parties
does not usually find a place on paper. There are deeper, more entrenched problems about ideology,
caste prejudice, gender bias etc. which are not recorded and thus are impossible to be traced through
papers.
What cannot be denied, however, is that this is a path breaking decision on transparency in
political life. But keeping the RTI Act intact in the face of continuous attempts to undermine its power
is the greatest challenge to RTI. The examples of Nepal and Poland point out that the broad
requirements of disclosure required under RTI is progressive but not a pragmatic solution to the
present day problems. Similarly, while the approach of judicial interpretation and intervention adopted
by Mexico and Canada are laudable, it is clearly unlikely to work where a legislature can practically
nullify the decision of the Court by passing a retrospective amendment to the law. In such a case, the
approach adopted in countries like Bulgaria, Indonesia etc. offers a useful middle ground. It provides
an alternate wherein a mutually acceptable level of disclosure can be reached from the point of view of
both citizens’ rights and political parties. So instead of completely insulating political parties from the
purview of RTI, an acceptable solution can be reached by declaring in certain terms the information
that political parties are required to disclose. This would help overcome the political resistance to a
great extent because the hostile attitude towards RTI Act or any new transparency law largely also
stems from the fear of uncertainty about the extent of disclosure that would be required. Such an
approach would disperse this air of uncertainty and ensure that transparency and openness are wisely
nurtured and judiciously deployed in order to serve its intended functions.

55
HERALDING CORPORATE GOVERNANCE IN BANKS IN INDIA: A
STUDY OF BANKING LAWS (AMENDMENT) ACT, 2012 & BASEL III
ACCORD
Anish Jaipurar
*

The entire financial system derives its oxygen from banks; in other words, banks are referred to as the
economic backbone of any nation. Banks not only influence the financial stability but also have the potential, both
directly as well as indirectly, to influence various policy decisions. It has been very interestingly pointed out that “the
men who can manage men, manage the men who manage only things, and the men who manage money manage all.”
This article attempts to delve into the corporate governance aspect of banks and emphasises on its importance in the
recent Banking Laws (Amendment) Act, 2012 and its compliance with the Basel III Accord. Corporate governance
has been a debated issue in the wake of the global financial crisis of 2008. The Indian economy, though lauded to have
been relatively insulated from the crisis, did face adverse effects in terms of reduced export earnings, drastic decline in
trade, industrial growth and employment, depreciation of the rupee, reduction in foreign exchange reserves and
downturn in stock markets. The subject again received heated discussion upon the enactment of Companies Act, 2013.
This article recognises the stark difference between a company and a bank and advocates for stricter norms when it
comes to corporate governance of banks. Basel III Accord contains various mandatory compliances which can change
the face of Indian banks, but the question remains whether such change would be for the good or the bad. The article
therefore delves into the problems in adoption of Basel III and suggests measures that can ensure a more transparent yet
stronger banking structure to support a stable financial system in India.
I. INTRODUCTION
Banking as a sector has always been unique and the interests of other stakeholders appear
more important with respect to it, than in the case of non-banking and non-finance organisations.
1

In the case of non-financial corporations, the issue has been that of safeguarding and maximising
share-holder value. In the case of banking, the risk involved for depositors and the possibility of
contagion assumes greater importance than that of non-financial firms. Further, the need for
regulatory oversight is discernibly higher in banks due to importance of stability of financial system
and in the larger interests of the public. Since market mechanisms are not sufficient to ensure proper
governance in and of banks, the government does see reason in regulating and controlling the nature
of activities, the structure of bonds, the ownership pattern, capital adequacy norms, and liquidity
ratios among others.
2




*
V
th
Year, B.A. L.L.B., National Law University, Odisha.
1
V. Leeladhar, Corporate Governance in Banks, Reserve Bank of India Bulletin (Dec, 2004) available at http://rbidocs.rbi.or
g.in/rdocs/Speeches/PDFs/61585.pdf
2
Id. at 2.

56

Some of the best corporate governance practices which could be adopted by banks include
3
:
a) Timely realisation of fast paced changes in the economy and consequently
taking appropriate measures;
b) Establishing effective, capable and reliable Board of Directors;
c) Introducing a Corporate Code of Ethics by the banks for themselves;
d) Establishing an office of Chairman of the Board;
e) Establishing efficient Audit Committee, Compensation Committee, and
Nominating/Corporate Governance Committee;
f) Considering effective Board compensation;
g) Disclosing information and establishing corporate governance procedures
that will serve to enhance shareholder value.
A stricter system of corporate governance is required for banks in India as the majority i.e.
70% of the banks, are in the public sector
4
and do not compete with one another
5
so that the scope
of checks and balances by and among rivals is limited. The increasing focus on building up a more
efficient system of corporate governance in banks has also been necessitated on account of the
financial crisis exposed flaws throughout financial markets and prompted much investigation into
the way banks work.
6
The recent BASEL III Accord, which would remain in effect for the period of
2013-2018, has tried answering these questions in terms of Corporate Governance.
7
The paper
therefore intends to study The Banking Laws (Amendment) Act, 2012, (hereinafter referred to as
“BLAA”) specifically with respect to its adoption of the Basel III norms in Part I and Part II.In Part
III, it tries to analyse the changes made and comment on its effectiveness through an evaluation of
the challenges that lie ahead for the banking sector in India. The paper is concluded with suggestions
for a stronger and more transparent Banking system.

II. CORPORATE GOVERNANCE AND BANKING LAWS
(AMENDMENT) ACT, 2012
To trace the history, in the year 2000, SEBI, based on the recommendations of the Kumar
Mangalam Birla Committee on Corporate Governance, instituted corporate governance regulations
for listed companies under Clause 49 of the Listing Agreement. Public and private banks were earlier
exempted from such recommendations, but in 2002 the recommendations were made mandatory for

3
Mridushi Swarup, Corporate Governance in the Banking Sector, 1 INT’L J. MGT & BUSINESS STUDIES 76, 79 (2011).
4
PTI, RBI extends Basel III implementation time, LiveMint and the Wall Street Journal (Dec 30, 2012), available at http://w
ww.livemint.com/Industry/hzIzNqYfqPjQ4GoS2uZsZO/RBI-extends-Basel-III-implementation-time-by-
3 months.html
5
Corporate Governance and Banks, available at http://bankingindiaupdate.com/corporategovernance.htm [Last Accessed
on 16 February 2013].
6
Hamid Mehran, Alan Morrison & Joel Shapiro, Corporate Governance and Banks: What have we Learned from the Financial
Crisis? Federal Reserve Bank of New York Staff Reports No. 502 (Jun 1, 2011) available at http://papers.ssrn.com/sol
3/papers.cfm?abstract_id=1880009
7
Basel III The pressure is building, KPMG (Dec, 2010) available at http://www.kpmg.com/BH/en/Documents/Basel
%203-%20Pressure%20is%20building%E2%80%A6.pdf
57
commercial banks listed on stock exchanges.
8
These recommendations were in the form of both
guidelines as well as mandatory requirements for sound corporate governance of the listed banking
as well as non-banking companies. They included formation of an independent audit committee by
the board of the company and the functions and responsibilities of such committee, formation of a
remuneration committee to determine the amount payable to executive directors, various disclosures
to be made by the company, redressal of shareholder grievances and delegation of the power of
share transfer. Most importantly, the Committee set a binding recommendation for a detailed
compliance report in a separate section on Corporate Governance in the Annual Report of the
Company.
The BLAA aims to permit new entry, consolidation and expanded foreign presence in a
sector that is the repository of most of the household savings in the country.
9
Empirical studies
reveal that households account for 58.1% of the total bank deposits.
10
Therefore the need for
additional care towards corporate governance is being deeply felt. It is also important to note that
very recently, the RBI has set up a panel to review the governance practice followed by banks.
11
The
last time such a committee was established, was in the year 2002, under the chairmanship of
A.S.Ganguly, whose stated objective was to suggest ways to ensure a more effective role of the
board members.
12
The RBI in its 2003-04 Report stated that:
“The concentrated shareholding in banks controlling substantial amount of public funds poses the risk of
concentration of ownership given the moral hazard problem and linkages of owners with businesses. Hence
diversification of ownership is desirable as also ensuring fit and proper status of such owners and directors. However,
with diversified ownership, there is, perhaps, an even greater concern over corporate governance and professional
management in order to safeguard depositors’ interest and ensure systemic stability.”
13

The BLAA enhances powers of RBI in terms of involvement in the management of the
banks.
14
It enables RBI to issue new bank licenses to corporate houses and strengthen the RBI’s
hand with powers to supersede entire boards of recalcitrant banks that fail to comply with its
directions.
15

Before the amendment, the RBI only had powers to remove a director or officers of
a banking company and not the board as a whole. However, now the RBI would have the power to
supersede the entire board, in public interest, and to appoint an administrator to run the bank for a

8
SEBI Committee on Corporate Governance – Guidelines to Indian Commercial Banks listed in Stock Exchanges, DBOD No. BC.112
/08.138.001/2001-02, (Aug 4, 2002) available at http://rbidocs.rbi.org.in/rdocs/notification/PDFs/29648.pdf.
9
C.P. Chandrasekhar, Big Change in Banking, 29 (26) FRONTLINE (2012), available at
http://www.frontlineonnet.com/fl2926/stories/20130111292603600.htm
10
Arvind Jayaram, Households Account for 58.1 per cent of Indian Bank Deposits, BusinessLine, Jun 10, 2013.
11
ET Bureau, RBI Sets up Panel to Review Governance of Bank Boards, The Economic Times , Jan 21, 2014.
12
Report of the Consultative Group of Directors of Banks / Financial Institutions – Implementation of Recommendations, DBOD. No.BC.
116 / 08.139.001/2001-02, (Apr, 2002), available at http://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/27762.pdf.
13
RBI ANNUAL REPORT, TRENDS AND PROGRESS OF BANKING IN INDIA, 213 (Chapter VIII) (2003-04) available at
http://rbidocs.rbi.org.in/rdocs/Publications/PDFs/58841.pdf (Accessed on 23-03-2013).
14
Banking Regulation Act § § 29A 12B (1949) as amended by Banking Laws (Amendment) Act of Jan 5, 2013.
15
Id. § § 36ACA, 30 as amended by Banking Laws (Amendment) Act of Jan 5, 2013.
58
period not exceeding 12 months.
16
The amendment increases the rates of existing monetary penalties
that RBI can impose on a bank if it disobeys its rules and directives or gives false information.
17

The above-mentioned amendment is a giant step taken, without satisfying the technicalities
that are required to be in place. The questions of the approach to be taken by the RBI to
successfully deliver the responsibilities that have been bestowed upon it and the direction to be
undertaken for implementation of the legislative amendments, especially considering the huge
number of banks operating in the economy, still remain unanswered. Principally, the idea is strong
but factors such as investors’ confidence and protection, depositors’ security, business stability are at
stake, in wake of the 2008 financial crisis. Further, Sec 12B of Banking Regulation Act (hereinafter,
referred to as the “Act”) as inserted by the BLAA also provides RBI with the power to permit
acquisition of 5% or more voting rights in a bank; it may also impose additional conditions if it
deems fit. Such extraordinary powers emphasise public trust doctrine, because even a small failure
may result in huge disadvantage to the stakeholders in place.
Supervisory powers which have always existed with the RBI also have been enhanced
through Sec 29A of the Act. The section gives power to the RBI to call for information and returns
from the associate and group companies of the banking companies and to inspect them, if
necessary. These powers of greater supervisory oversight would be an excellent tool to maintain a
closer check, at a time when the RBI proposes to grant licenses to industrial houses for setting up
new banks. The Act also substantially increases the penalties and fines for violations of its provisions
and rules.
18
It also empowers the RBI to demand penalty interest from the bank if the bank fails to
maintain the prescribed minimum amount of Cash Reserve Ratio (CRR) on any given day.
19

Such enhanced powers of the RBI can essentially be understood to indicate that the
governance of the banks is mostly in the hands of RBI and that such powers can be exercised at any
point of time when felt necessary. Furthermore, in light of the impact that incidents like the Satyam
scandal have on the financial system, such powers with the RBI are most definitely justified. The
recent Cobra-Post sting operation revealed employees of three leading banks namely Axis bank,
HDFC and ICICI indulging in suggesting measures to legitimise unaccounted money. RBI took
them to task and penalised the said banks requiring them to pay 5 crores, 4.5 crores and 1 crore
respectively.
20
Such episodes have severe bearing on corporate governance as they bring to light the
rampant practice of illegal banking operations which can be curbed through a strong governance
structure in place. In the light of the enhanced powers coupled with a dire need for financial
stability, a full-fledged structural and functional review of RBI as an institution would be the call of

16
PRS Legislative Research, Bill Summary: The Banking Laws (Amendment) Bill, 2011, PRS India, (Jul 5, 2011) available at
http://www.prsindia.org/administrator/uploads/media/BankingLaws/BankingLaws_Amendment_BillSummary,
2011.pdf
17
Analysis of the Banking Laws (Amendment) Act, 2012, Albright Stonebridge Group (Feb 14, 2013), available at
http://www.albrightstonebridge.com/banking_02.14.2013/
18
Supra note 14, § §46, 47A as amended by Banking Laws (Amendment) Act of Jan 5, 2013.
19
Supra note 17.
20
PTI Cobrapost Expose: RBI penalises Axis, HDFC, ICICI Banks for Rule Violations, The Economic Times, Jun 11, 2013.
59
the day, as RBI has itself confessed to being underequipped at times.
21
The review would go a long
way in bringing structural modifications to suit the changing needs of financial system.
Seen in isolation, though the motive behind the changes is bona fide, it still needs to be seen
whether or not they would work for the financial market as a whole. As mentioned earlier, strictly
speaking, banks are not corporate entities and there are many exemptions listed in the Companies
Act 1956 (hereinafter referred to as “CA’56”) and Companies Act 2013 (hereinafter referred to as
“CA’13”). Sec 1(4)(c) of CA’13 provides that Banking Companies shall be primarily governed by
Banking Regulation Act, 1949.
22

Although CA’13 is outside the purview of this paper yet an intelligible connection appears
between the two legislations, as the CA’13 essentially tries to give way to banking companies and its
regulation towards an independent functioning. The structure so established suffers from one very
crucial flaw:
1. In the matter of Serious Fraud Investigation Office (SFIO) under the CA’13, does it
provide sufficient powers to investigate even banking companies? There are two interpretations in
this regard:
a. Relying on the word ‘company’ in Sections 211 and 212, an expansive interpretation
will include banks as well.
b. Relying on Sec 1(4)(c), the BLAA has given additional powers to RBI to investigate
banks in cases of fraud or potential fraud.
The author believes that the first interpretation would serve the purpose better because this
would reduce the burden of keeping a check on the banks from solely the RBI to one that is shared
between the RBI and Ministry of Corporate Affair’s SFIO, thus bringing in more efficiency and
effectiveness in the mechanism. Also in absence of any express exclusion of banks in Sec 211, 212
of the CA’13 the provisions of SFIO extends to banking companies as well.
Moving further, shareholder activism, also known as ‘relationship investing’, is a phenomenon
which focuses primarily on the poorly performing firms in their portfolio aimed at pressurising the
management of such firms for improved performance and thereby enhancing shareholder value, is
an excellent way to assert proper governance of a company.
23
In the past 20 years, mostly in the
West, one could observe the rising presence of such activism. The BLAA in this respect has made
certain crucial alterations. Previously there was a cap of 1% on voting rights to private investors in
public sector banks. This in effect meant that the private investors had a miniscule role to play in the
functioning of the bank even as a shareholder.
24
But with the current amendment, the cap on the
voting rights has been increased to 10%. Besides improving the role of the private investors, this

21
For e.g., ET Bureau, RBI says not equipped to regulate MFIs, The Economic Times, August 13, 2011.
22
The Companies Bill 2012, Bill No. 121C of 2011, available at http://www.mca.gov.in/Ministry/pdf/The_Companies_Bil
l_2012.pdf [Last Accessed on 24 March 2013].
23
Stuart L. Gillan & Laura T. Starks, Corporate Governance Proposals and Shareholder Activism: The Role of Institutional Investors, 57
J. FINANC. ECON. 275, 276 (2000).
24
Gurpur, Banking Amendment Bill: What are its Benefits to the Banking Public? (Dec 20, 2012), available at http://www.moneylif
e.in/article/banking-amendment-bill-what-are-its-benefits-to-the-banking-public/30304.html
60
would also attract foreign institutional investors, who have, until now, been sitting on the sidelines
due to limited voting rights as far as investing in public sector banks is concerned.
25

Furthermore, BLAA has also changed the voting cap in the private banks, increasing it from
the present threshold i.e. 10% to 26%.
26
This means that the promoters and their group can have
voting powers up to 26%. This has been called a ‘double edged sword’ because on the one hand, it
gives the promoters a better say in the management of the bank and coupled with the higher
commitment of the promoters it could be a spring board for faster growth of the bank. On the
other hand, it can influence the decisions of the management, which may or may not be in the
best interest of the bank and its other stakeholders.
27
Therefore this necessitates a close watch on the
promoters by RBI in order to successfully achieve the desired purpose of the change. The private
banks must be closely monitored, to ensure smooth functioning and intended use of the voting
rights.
The benefits of large shareholding may be summarised in terms of the “convergence-of-
interest” hypothesis and the “efficient-monitoring” hypothesis. According to these hypotheses:
1. Efficient Monitoring – Large shareholders are likely to be more efficient than small
and dispersed shareholders in monitoring company management since they have substantial
investments at stake as well as significant voting power to protect these investments,
28
and;
2. Convergence of Interest – Also likely to engage in relational investing and be more
committed to a company in the long run,
29
all of which are likely to have a positive impact on
company value. In addition, large shareholders are likely to mitigate the collective action problem
that is present among dispersed shareholders in disciplining inefficient management especially if
management stands in the way,
30

The above, if properly implemented, can prove advantageous to the manner in which
banking system works. But in order to actually to have the two hypothesis work in banks’ favour, a
balance needs to be maintained between the interests of shareholders and that of depositors.
Shareholders want profits to be maximised by taking on greater risks; depositors have an overriding
preference for the safety of their deposits and hence, for lower risk. With the BLAA, the
shareholders’ say in the management of banks has increased while the depositors still hold the good
faith doctrine which emphasises faithfulness to an agreed common purpose and consistency with

25
Supra note 17.
26
Banking Regulation Act § 12(2) (1949) as amended by Banking Laws (Amendment) Act of Jan 5, 2013.
27
Supra note 24.
28
ADOLF BERLE & GARDINER MEANS, THE MODERN CORPORATION AND PRIVATE PROPERTY 200 (1932); See also,
Jensen Michael & William Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J.
FINANC. ECON. 305, 320 (1976).
29
Black Bernard, Shareholder Activism and Corporate Governance in the United States, THE NEW PLAGRAVE DICTIONARY OF
ECONOMICS AND LAW, (Peter Newman ed. 1998); See also Jayati Sarkar & Subrata Sarkar, Large Shareholder Activism in
Corporate Governance in Developing Countries: Evidence from India, 2 INTL. REV. OF FINANCE (March, 2000).
30
Peter Dodd & Jerold Warner, On Corporate Governance: A Study of Proxy Contests, 11 J. FINANC. ECON. 401, 430 (1983).
61
the justified expectations of the other party (depositors)
31
against the bank to have deposits returned
in time and on demand.
Another amendment is with respect to mergers and acquisition, wherein although the power
has been given to Competition Commission of India (“CCI”) to approve of such compromises, but
in cases where the banks are in trouble, the RBI would have the final say.
32
This enables task sharing
by the two bodies giving rest to the previous controversies of conflict of powers of RBI and CCI.
33

This has an important bearing on the governance issue as the amendment, along with the new bank
licensing provisions, broadens the scope for a better market which would encourage banks to
govern themselves in a competitive manner.
With the diversification of shareholding and separation of ownership and management of
the banks, a positive step towards enhanced governance has been taken. However a lot more
requires to be done in the area, especially for improving transparency in banking operations. More
importantly, there need to be changes aimed at freeing the public sector banks frompolitical
interference and from their dual control by the finance ministry and the RBI. These changes, as and
when incorporated, would act as a universal solution towards effective governance as it will instil
investors’ confidence.
34

III. CORPORATE GOVERNANCE AND BASEL III ACCORD
The Basel Committee on Banking Supervision (Hereinafter referred to as ‘BCBS’) provides a
forum for regular cooperation on banking supervisory matters to enhance understanding of key
supervisory issues and improve the quality of banking supervision worldwide. It seeks to do so by
exchanging information on national supervisory issues, approaches and techniques, with a view to
promoting common understanding.
35

Presently, the global and the domestic economy scenarios continue to be grim andare far
more subdued than in 2012. Growth of the Indian economy for 2013-14 is projected at 6 - 7 per
cent – significantly below the 9 per cent growth rate envisaged during the Twelfth Plan and well
below the desired goal of double digit growth rate.
36
The Indian banking sector has also faced
significant challenges.
37
The need of the hour is to restore investors’ confidence in the financial

31
Summers, The General Duty of Good Faith – Its Recognition and Conceptualization, 67 CORNELL L. REV. 810 (1982).
32
Supra note 30, § § 44A 44B as amended by Banking Laws (Amendment) Act of Jan 5, 2013; See also, Pradeep S. Mehta, Will
RBI be a Better Judge for Banking Mergers?, Business Standard, May 9, 2012; See also, Sharad Sharma, The Banking Laws
(Amendment) Bill, 2012 – An Insight (Dec 31 2012) available at http://www.lexology.com/library/detail.aspx?g=51cbfc11-
58df-4ea3-afe3-86736b085291
33
Regulators Squabble Over Jurisdiction, Money Today (Jun 10, 2010), available at:
http://businesstoday.intoday.in/story/regulators-squabble-over-jurisdiction/1/8747.html [Last Accessed on 10 March
2014); Turf War! Sectoral Regulators vs. CCI, CNBC TV18, (Jun 16, 2012), available at
http://thefirm.moneycontrol.com/story_page.php?autono=718698
34
Supra note 32.
35
About Basel Committee, Bank of International Settlement, (Jan 23, 2013), available at http://www.bis.org/bcbs/about.htm
36
K. C. Chakrabarty, Indian Banking Sector: Pushing the Boundaries, RBI Monthly Bulletin, March 2013 , available at
http://rbidocs.rbi.org.in/rdocs/Bulletin/PDFs/03SPB080313F.pdf. [Last Accessed on 14 March 2013]
37
Id.
62
system for which in turn requires the establishment of a strong banking structure. This structure
must comply with the highest standards of governance to ensure its smooth functioning.
The Basel III(Hereinafter B3)Accord raises the minimum capital requirements for common
equity capital from 2% to 4.5% of risk-weighted assets and the Tier 1 ratio from 4% to 6% effective
as of 2015.
38
Subsequently, fully effective as of 2019, banks will be required to add a conservation
buffer of 2.5 percentage points on the top of common equity and Tier 1 capital ratios. The buffer is
designed to ensure that banks build up capital buffers during normal times (i.e. outside periods of
stress), which can be used against losses that are incurred during a stressed period. The requirement
is based on simple capital conservation rules designed to avoid breaches of minimum capital
requirements as mentioned above. The above capital requirements will motivate a liberal investment
policy because the funds required to meet them are too humongous to solely rely on domestic
market.
B3 strengthens the three Basel II (Hereinafter B2) pillars of Minimum Capital Requirements,
Supervisory Review Process and Disclosure & Market Discipline to:
1. Enhanced Minimum Capital & Liquidity Requirements (Pillar 1)
2. Enhanced Supervisory Review Process for Firm-wide Risk Management and Capital
Planning (Pillar 2)
3. Enhanced Risk Disclosure & Market Discipline (Pillar 3)
While Pillar 1 prescribes a risk-sensitive calculation of capital requirements that, for the first
time, and explicitly includes operational risk in addition to market and credit risk. In this paper,
Pillars II and III shall be dealt with as they relate to governance aspect of the capital requirement
and maintenance as mandated by B3.
A. PILLAR 2 – SUPERVISORY REVIEW PROCESS
This pillar recognises the necessity of exercising effective supervisory review of banks’
internal assessments of their overall risks to ensure that bank management is exercising sound
judgement and has consistent capital for these risks:
39

1. Supervisors would evaluate the activities and risk profiles of individual banks to
determine whether those organisations should hold higher levels of capital than the minimum
requirements in Pillar 1 would specify and to see whether there is any need for remedial actions.
2. When supervisors engage banks in a dialogue about their internal processes for
measuring and managing their risks, they would help to create implicit incentives for organisations to
develop sound control structures and to improve those processes.

38
BIS Press Release, Group of Governors and Heads of Supervision announces higher global minimum capital standards,
Bank for International Settlements, (Sep 12 2010) available at http://www.bis.org/press/p100912.htm.
39
Basel Three Pillars, Basel II Risk, available at http://www.basel-ii-risk.com/Basel-II/Basel-Three-Pillars/index.htm [Last
Accessed on 2 April 2013].
63
The supervisory approach adopted is defined as risk-based and organisation-based. The aim
of the control procedures is to ensure that the banks are managed on a safe and sound basis: the
focus is on the risks undertaken on the one hand, and on the adequacy of its capital structure,
internal controls, and organisation for dealing with them on the other.
40
The intermediaries’
independence in the management of their business also implies that they are responsible for
managing their risks, and is counter-balanced by the supervisory authorities’ verification that the
level of risk undertaken is consistent with the adequacy and efficacy of the internal risk buffers:
capital adequacy, organisational processes and internal control system.
41

Pillar II, describes the mandatory processes for both banks and regulators to fulfil the
capital-adequacy requirements.
 Banks: To conduct Internal Capital Adequacy Process (ICAAP) to demonstrate
implemented methods and procedures to ensure adequate capital resources.
 Regulators: To conduct a Supervisory Review and Evaluation Process (hereinafter
SREP) to assess the soundness of a bank’s ICAAP.
Responsibility for defining and implementing the ICAAP lies with the bank’s top
management, within the context of its internal governance, whose main obligations are to define the
business objectives and the risk attached, to establish the organisational structure, to assign roles and
responsibilities and establish the structure of information flows and reporting, and to decide how the
internal control system is to be organised.
42
While the supervisory authority are intended to evaluate
any risks arising from the inadequacy of banks' general governance, organisational and control
systems, focusing on the ownership structure and management and control bodies, the corporate
organisational structure, and the control functions (internal audit, risk management and compliance
function).
43

Though this Pillar has adequately and appropriately addressed the concern, the compliance
with the same is a hazard. Apart from accelerating an industry-wide capital shortage, new practices
under Pillar 2 and ICAAP may give rise to an unlevelled playing field across jurisdictions. Because
Pillar 2 is principles-based rather than rules-based, it is subject to national supervision, which carries
a risk of inconsistent interpretations and regulatory uncertainty.
44
In light of B3 and its complexities,
some institutions are already changing the “lens” they use to guide the bank, switching from an
economic to a strictly regulatory perspective. But this may well weaken the bank’s internal risk-
management practices.
45


40
Elisabetta Gualandri, Basel 3, Pillar 2: The Role of Banks’ Internal Governance and Control Function, (Center for Research in
Banking and Finance, UNIMORE, Working Paper Series, Aug 12, 2011), available at http://ssrn.com/abstract=1908641
41
Id.
42
CEBS Guidelines on the Application of the Supervisory Review Process under Pillar 2, Committee of European Banking
Supervisors, (Jan 25, 2006), available at http://www.eba.europa.eu/documents/10180/16094/GL03.pdf/9705f895-fbfa-
4e39-bac9-3def3127f545
43
Id.
44
Sonja Pfetsch et al., Mastering ICAAP: Achieving Excellence in the New World of Scarce Capital, (McKinsey, Working Papers
on Risk, (No. 27, May 2011).
45
Id.
64
Furthermore, supervisors too often find themselves overmatched when challenging well-paid
bank staff about the integrity of their regulatory capital calculations. Only in extreme circumstances
do supervisors feel empowered to impose supplemental capital requirements.
46
Compared to B2,
following areas have been improved in pillar 2 under B3:
1. Firm-wide governance and risk management;
2. Capturing the risk of off-balance sheet exposures and securitisation activities;
3. Managing risk concentrations;
4. Providing incentives for banks to better manage risk and returns over the long term;
5. Sound compensation practices.
These areas were earlier neglected, but now have been taken care of. Also, with the
implementation of B3 it has been observed, or rather evidence has been found suggesting, that
banks that managed to integrate their internal models into robust risk-management processes i.e.
Pillar 2 performed better throughout the crisis than banks managing capital solely on Pillar 1 which
provide for minimum capital requirement as mentioned above.
B. PILLAR 3 – MARKET DISCIPLINE
Pillar 3 relates to market discipline and assumes expanded risk disclosures will help keep
banks in line by enabling investors to reward or punish institutions on the basis of their risk profile.
47

It leverages the ability of market discipline to motivate prudent management by enhancing the
degree of transparency in banks’ public reporting. It sets out the public disclosures that banks must
make that lend greater insight into the adequacy of their capitalisation.
48
The BCBS believes that,
when marketplace participants have a sufficient understanding of a bank’s activities and the controls,
it has in place to manage its exposures, they are better able to distinguish between banking
organisations so that they can reward those that manage their risks prudently and penalise those that
do not.
49

To put it simply, Pillar 3 disclosures cover the following aspects from both a qualitative and
a quantitative standpoint:
50

1. Scope of application of the capital adequacy framework;
2. Capital structure and capital adequacy;
3. Credit risk (requirements are very extensive for banks adopting the more advanced
Internal Ratings-Based, or IRB, approaches);

46
David Rowe, The forgotten pillars of Basel II, Risk Magazine (Jan 10, 2013), available at http://www.risk.net/risk-
magazine/opinion/2232342/the-forgotten-pillars-of-basel-ii
47
Id.
48
Supra note 39.
49
Id.
50
Christophe Cadiou & Monika Mars, Basel II Pillar 3: Challenges for banks, The Journal of Global perspectives on challenges
and opportunities, available at http://www.pwc.com/gx/en/banking-capital-markets/pdf/Basel.pdf [Last Accessed on 2
March 2013].
65
4. Securitisation;
5. Market risk;
6. Equities;
7. Interest rate risk in the banking book; and
8. Operational risk (requirements are more onerous for banks adopting the Advanced
Measurement Approach, or AMA).
The BCBS has found that “this Basel II requirement is not met in a consistent way by banks. The lack
of consistency in both the level of detail provided and the format of the disclosure makes the analysis and monitoring of
this information difficult”.
51
Therefore in addition to above B3 has proposed following enhancements to
Pillar 3:
52

1. Securitisation exposures in the trading book;
2. Sponsorship of off-balance sheet vehicles;
3. Re-securitisation exposures; and
4. Pipeline and warehousing risks with regard to securitisation exposures.
Banks are also required to strongly engage in pro-active disclosure not limited to the required
information, but to articulate how these factors complement and support their overall risk
management framework.
53

The enhancement in B3 from B2 is commendable yet the implementation part remains
questionable. Pillar 2 of B3 must act tough to keep a check on Pillar 3, needless to point out the
crucial inter-connection between all the three pillars and in order for the B3 to give the banks a relief
from the current depression is the successful implementation and compliance of all the three pillars.
IV. CHALLENGES AHEAD FOR INDIAN BANKING SYSTEM
India’s engagement with the global economy became deeper from the 1990s, and since then
the global integration has only increased.The economy then could withstand the blow delivered by
the 2008 financial crisis to global financial market, on account of three factors:
(1) The robust, well capitalised and well-regulated financial sector;
(2) Gradual and cautious opening up of the capital account; and
(3) The large stock of foreign reserves.
54


51
Pillar 3 disclosure requirements enhanced by the Basel Committee, Risk Business, (2011), available at
https://subscriber.riskbusiness.com/ComponentFiles/Website/InterestingReading_Filename_141.pdf [Last Accessed
on 2 April 2013].
52
Enhancement to the Basel II Framework, Bank for International Settlements, (July 2009) available at
http://www.bis.org/publ/bcbs157.htm [Last Accessed on 2 April 2013].
53
Basel Committee on Banking Supervision, Pillar 3 disclosure requirements for remuneration, 3 (July 2011), available at
http://www.bis.org/publ/bcbs197.pdf (Accessed on 02-04-2013).
66
Fortunately India, along with most of the emerging economies like Brazil, South Africa and
Philippines, was lucky to avoid the first round of adverse effects, because its banks were not overly
exposed to sub-prime lending and were subject to strong government regulation. However, the
indirect impact (also called the second round of impact) of the crisis affected the Indian economy
quite significantly; as stated above the outflow of FIIs compelled Indian banks and corporations to
shift their credit demand from external sources to the domestic banking sector.
55
These events put
considerable pressure on liquidity in the domestic market and consequently provoked a credit
crunch. This credit crunch, coupled with a general loss of confidence, increased the risk aversion of
Indian banks, which eventually hurt credit expansion in the domestic market.
56

Yet in other aspects, Indian economy suffered numerous setbacks. The growth rate which
was earlier measured at 8-9% per annum fell to 4-5% per annum. Indian economy in the beginning
of January 2008, witnessed FIIs outflows of about $12.03 billion, as a result of which the stock
market crashed. In April 2008, massive slowdown to the tune of $ 18 billion occurred in External
Commercial Borrowing (ECBs), trade credit and banking flows. Soon on account of such huge
capital withdrawals, the value of rupee (INR) fell.
57
As a result, the money market suffered huge
setbacks and consequently, the export and import of software and remittances collapsed.
58

The introduction of BLAA and B3 in the Indian economy plays a very crucial role indealing
with the above mentioned problems. With the enhanced powers of RBI and the establishment of
new banks, a great confidence over the financial market is needed. The Indian economy through
BLAA intends to starts afresh, and with B3 it intends to adapt such a start with international
policies. G20 has endorsed the Basel III regulation; and with India being a part of the group, it
becomes extremely important to conform to such practices. Such adaptation will lead to
harmonisation of banking regulations across the globe.
There are strong arguments against the harmonisation of banking structure and such
process, one being that failure of banks in one country would lead to duplication across the globe.
59

Arguing the demerits of harmonisation would be beyond the scope of this paper, yet such
harmonisation is the need of the hour.
A. GOVERNANCE IN INDIAN BANKS
Moving further, in a developing economy such as India, the growth of efficient corporate
governance principles in banks has been partly held back due to weak legal protection, poor

54
Mathew Joseph, Global Financial Crisis: How was India Impacted?, 3 (Presented in InWEnt-DIE Conference on Global
Financial Governance – Challenges and Regional Responses, September 3-4, 2009).
55
Rajiv Kumar & Pankaj Vashisht, Crisis, Imbalances, and India, (ADB Institute Working Paper, No. 272, March 2011).
56
Id.
57
Dayanand Arora et.al., India’s Experience during Current Global Crisis: A Capital Account Perspective, 6(5) PUBLIC POLICY
REVIEW 807, 808 (June 2010).
58
Supra note 54.
59
George J. Benston, International Harmonization of Banking Regulations and Cooperation among National Regulators: An Assessment,
8 J. FIN. SERV. RESEARCH 205, 205 (1994).
67
disclosure prerequisites and overriding owners.
60
The private banking sector is purposely opting to
ignore certain corporate governance ethics as it has vested interest of some parties.
61
It has also been
observed that 63% of the Public Sector Banks (PSBs) have potential for increase in profitability
through efficiency improvement, which ultimately depends on the quality of governance.
62

PSBs are state-controlled banks and their boards are dominated by representatives of the
government. The need for the board to be the guardian of shareholder welfare has not found favour
with these banks as the Government of India is their largest shareholder.
63
Since these banks form
the majority of banks in India, governance of the same assumes great importance. The dominance of
directors as the representative of the governmenthas proved to be counterproductive.
64
In fact, it
often serves to distort the incentive structure, erode discipline and reaffirm the faith of these
institutions in the “deep pockets” of the government.
65
It has been aptly observed that on an
average, greater state ownership of banks tends to be associated with a poorer operating financial
system.
66

A single person has been entrusted with the responsibility of being the Managing Director as
well as the Chairperson in most PSBs. This again, is a cause of worry. A proper trade-off between
the duality and non-duality of the highest post is thus crucial for institutions like banks, specifically
in PSBs, where the senior directors are nominated by the government.
67
Furthermore, governance
through committees such as Audit, Asset Liability Management, Compensation, Risk Management,
Investor Grievance, Business Strategy, Credit and Nomination has not yet attained the requisite
popularity either in private or public sector banks.
68
As a result, the transparency levels of the banks
depict a very gloomy picture. A couple of banks, viz., the SBI and the ICICI have established these
committees, but the work delivered by them is far from the international standards as they fail to
meet the independence and transparency requirement.
69

Another issue that Indian banks face is that of remuneration and compensation.
Interestingly, in contrast to most other jurisdictions, the Reserve Bank has the power, in terms of the
Banking Regulation Act, to regulate board compensation, including the pay and perquisites of the

60
T.G. Arun, & J.D. Turner, Corporate Governance of Banking Institutions in Developing Economies: Concepts and
Issues, 8−10 (2002), available at http://unpan1.un.org/intradoc/groups/public/documents/NISPAcee/UNPAN015471.
pdf [Last Accessed on 2 April 2013].
61
Banaji & Mody, Corporate Governance and the Indian Private Sector, (University of Oxford, QEH Working Paper Series, No.
73, 2001).
62
Kshama V. Kaushik & Rewa P. Kamboj, Study on the State of Corporate Governance in India: Gatekeepers of Corporate Governance
Reserve Bank of India, (2011), available at http://www.iica.in/images/RBI_and_Gatekeepers_of_corporate_governance.pdf
[LastAccessed on 10 March 2014]; Sunil Kumar & Satish Verma, Technical Efficiency, Benchmarks and Targets: A Case Study of
Indian Public Sector Banks, PRANJAN, 275, 280 (Vol. XXXI, Jan-Mar 2003).
63
Pushkar Gupta, Corporate Governance in Indian Banking Sector, 27 (2007-2008), available at
http://edissertations.nottingham.ac.uk/1888/1/08MAlixpg3.pdf.pdf [Last Accessed on 2 April 2013].
64
Id.
65
RBI, REPORT ON CURRENCY AND FINANCE: 1999-2000, 24 (2001).
66
Supra note 63 at 24.
67
Id. at 28.
68
Id. at 29.
69
Blue Ribbon Committee on Improving the Effectiveness of Corporate Audit Committees, Report and
Recommendations, 54 The Business Lawyer 1067, 1070 (1999); See also, supra note 63 at 29.
68
CEO of private sector banks.
70
Post the 2008 financial crisis,the RBI hastried conceptualising this
issue and has proposed guidelines on “Compensation of Whole Time Directors/Chief Executive Officers/Risk
Takers and Control Staff”. The guidelines are currently in force; the same was although initially
deferred pending the BCBS final report which was released in May-July.
71
The debate still persistson
whether or not Non Executive Directors should be subject to fixed remuneration.
In this regard the Working Group (WG) on Banking has recommended following:
72

1. The human resource policy documents need to be looked at comprehensively by
bank supervisors and consequently also suggest amendments in the same wherever these policies
deviate from soundness and leads to excessive risk-taking.
2. Rules with regard to spreading the compensation over longer horizon accompanied
by claw back of payments provisions in the requisite cases need to be incorporated.
3. The notion of ‘fit and proper’ that finds application with respect to the boards of banks
should be reconsidered. . The WG is in support of the suggestion of Umarji Report (2008)
73
to
remove the restriction on directors on Boards of banks also being directors of other enterprises.
However, the same should be qualified with the restriction that the Managing Director (MD) would
not be permitted to occupy a board position in group companies/entities.
4. With regard to PSBs, the Board must be entrusted with the power to nominate
members of the appointment committee as well as that of the compensation committee of the
Board.
5. Regardless of the ownership, all banks should be subjected to uniform laws and
regulations. Uniform rule of law must be followed by banks irrespective of ownership:
a. The position of chairman and managing director in case of PSBs should be separated
into distinct positions.
b. Boards of PSBs should be governed by the same stipulations governing other that of
other types on banks and therefore should play a similar role.
c. Complete compliance of the listing norms (Securities and Exchange Board of India
(SEBI) stock exchange rules) in case of listed entities required.
The BLAA does not propose any measure on these lines, while B3 has included various
measures that need to bekept in mind such as that of compensation.

70
D. Subbarao (Inaugural Address), Corporate Governance of Banks in India In Pursuit of Productivity Excellence, 15 FICCI-IBA
(FIBAC) Conference (2011) available at http://rbidocs.rbi.org.in/rdocs/Speeches/PDFs/FICCIIB230811.pdf [Last
Accessed on 17 March 2014].
71
RBI, Guidelines on Compensation of Whole Time Directors / Chief Executive Officers / Risk Takers and Control Function Staff, etc.,
RBI/2011-12/349 (Jan 13, 2012), available at http://rbi.org.in/scripts/NotificationUser.aspx?Id=6938&Mode=0
72
GOVERNMENT OF INDIA, FINANCIAL SECTOR LEGISLATIVE REFORMS COMMISSION, REPORT OF THE WORKING GROUP
ON BANKING 14 to 19 (March 1, 2013) available at https://macrofinance.nipfp.org.in/fslrc/documents/wg_banking_rep
ort.pdf
73
M.R. UMARJI, INDIAN BANKS’ ASSOCIATION, DRAFT REPORT OF THE WORKING GROUP TO REVIEW THE BANKING
REGULATION ACT, 1949 (May 2008), available at www.iba.org.in/events/DraftBRReportMAY08.doc [Last Accessed on 2
April 2013].
69
B. FINANCIAL SECTOR LEGISLATIVE REFORMS COMMISSION
The Financial Sector Legislative Reforms Commission (FSLRC), is a body established by
Ministry of Finance in 2011 to review and rewrite legal and institutional architecture of the Indian
financial sector, submitted its recommendations in March 2013. The Report
74
suggested a complete
overhaul of the existing financial sector laws and a new omnibus law in the Indian Financial Code to
oversee the entire gamut of financial sector issues. It proposes establishment of following bodies:
1. Unified Financial Authority
2. Reserve Bank of India
3. Financial Redress Agency
4. Resolution Corporation
5. Financial Stability and Development Council
6. Public Debt Management Agency
7. Financial Sector Appellate Tribunal (FSAT)
In addition to the above, the Report also discussed the governance issues of the regulators
themselves, be it the RBI, the SEBI or the CCI. It proposed complete independence of regulators
from government in terms of separation of powers. This was to let the institutions function with
precise objectives and not mere physical independence which would have allowed political
interference.
75
Also, the regulators were proposed to be brought under scrutiny as well under the
FSAT, establishing clear principles of governance that the regulator must adhere to. It was aimed at
separation of adjudication from policy making and implementation.
Furthermore, it was recommended that every policy that was to be made should not be
made solely by the Governor of RBI; rather a council comprising the Governor and Deputy
Governor of RBI and five more external members appointed by the Government should be
established for the same. Also, the government, in consultation with the Governor, would give the
central bank quantifiable monitor-able objectives; the RBI would then need to state reasons for
failure of achievement of objectives and the remedial action it would take. The committee has also
recommended that the government and not the RBI would be the one to make rules with respect to
capital inflows. This recommendation is irrespective of whether the inflows are FDI, FII, forex
loans or NRI deposits. Moreover, the RBI would be the banking regulator butit would nothave any
control over the non-bank finance companies (NBFCs).
76


74
GOI, REPORT OF FINANCIAL SECTOR LEGISLATIVE REFORMS COMMISSION, VOLUME II: DRAFT LAW (March, 2013),
available at http://finmin.nic.in/fslrc/fslrc_report_vol2.pdf [Accessed on 02-04-2013].
75
GOI, REPORT OF FINANCIAL SECTOR LEGISLATIVE REFORMS COMMISSION, VOLUME I: ANALYSIS AND
RECOMMENDATIONS 15 (March, 2013) available at http://finmin.nic.in/fslrc/fslrc_report_vol1.pdf [Last Accessed on 2
April 2013].
76
Subir Gokarn, FSLRC Report: Will financial sector really benefit from it?, CNBC-TV18 (Mar 31, 2013), available at
http://www.moneycontrol.com/news/economy/fslrc-report-will-financial-sector-really-benefitit_844503.html
70
The Report recommendations are note-worthy and revolutionary as it proposes to subsume,
repeal and basically incorporate every existing law that deals with the financial sector. It is a step
towards bringing uniformity, consistency in law and eradicating confusion. As pointed out earlier
and substantiated further by FSLRC, RBI at times is underequipped and inadequate to deal with the
numerous matters of public importance.
77
At this juncture, the proposed Financial Code might be
something that the Indian financial market demands. Currently, the FSLRC Report is being
considered by the Ministry of Finance. As of now, the finance ministry has called for voluntary
implementation by the existing sectoral regulators.
78

V. CONCLUSION
At a conference organised by FICCI-IBA, Dr. D. Subbarao in his inaugural address
observed that:
“Banks are different from other corporates in important respects and that makes corporate governance of
banks not only different but also more critical. Banks lubricate the wheels of the real economy, are the conduits of
monetary policy transmission and constitute the economy’s payment andsettlement system.”
79

RBI had initially in Dec, 2012 extended the date for implementation of Basel III and the
global capital norms for banks, by three months to 1 April, 2013.
80
But in March 2013, RBI had
again postponed the implementation of Basel-III regulations for the currency derivatives segment to
next January, 2014.
81
These postponements had a very significant impact since the delayed
implementation of the capital adequacy norms consequently delayed the implementation of the
governance aspect of it. It must also be noted that, phased implementation has never proved to be
successful with Indian regulators.
Although the BLAA proposes various measures that can prove handy as far as corporate
governance is concerned, it has not addressed various crucial issues. RBI has been given enhanced
powers to supervise hundreds of banks, without proper modus operandi in place. The author therefore
suggests crucial amendments to help retain the soundness of Indian financial system. A Corporate
Governance Code in the lines of Clause 49
82
of Listing Agreement be implemented by RBI making
the compliance mandatory for the banking sector, failing which severe penalties should be imposed.

77
Latha Venkatesh, FSLRC Report: RBI's authority in question, CNBC-TV18 (Mar 28, 2013), available at
http://www.moneycontrol.com/news/economy/fslrc-report-rbis-authorityquestion_844205.html
78
PTI, Non-legislative suggestions of FSLRC can be implemented, CNBC-TV18 (Jan 11, 2014), available at
http://www.moneycontrol.com/news/market-news/non-legislative-suggestionsfslrc-can-be-
implemented_1023058.html?utm_source=ref_article
79
Supra note 70.
80
PTI, RBI Extends Basel III Implementation Time, LiveMint & The Wall Street Journal (Dec 30, 2012) available at
http://www.livemint.com/Industry/hzIzNqYfqPjQ4GoS2uZsZO/RBI-extends-Basel-III-implementation-time-by-3-
months.html
81
PTI, RBI Defers Basel-III Norms for Forex Derivatives, Business Standard (March 29, 2013), available at http://www.business-
standard.com/article/finance/rbi-defers-basel-iii-norms-for-forex-derivatives-113032900020_1.html
82
The term ‘Clause 49’ refers to clause number 49 of the Listing Agreement between a company and the stock exchanges
on which it is listed (the Listing Agreement is identical for all Indian stock exchanges, including the NSE and BSE). This
clause is an addition to the Listing Agreement and was inserted in 2000, consequent to the recommendations of the K
Birla Committee on Corporate Governance constituted by the Securities Exchange Board of India (SEBI) in 1999.
71
The proposed B3 guidelines seek to improve the ability of banks to withstand periods of
economic and financial stress by prescribing more stringent capital and liquidity requirements for
them.
83
Pillars 2 and 3 play a crucial role as far as corporate governance is concerned. However,
there are scholars who observe that B3 is not as crisis-repellent as one may be inclined to think. It
suffers from various flaws. Bank regulators of most countries usually prefer to adopt banking
standards informally and behind the scenes.
84
Also, the B3 capital requirements provide regulators
with standard means of promoting sound corporate governance and improving their bank
supervision function without a jurisdictional study in order to synchronise the member countries'
supervisory procedures. The BCBS promotes convergence towards common approaches and
standards without the proper procedural guidelines and as a result, the intended effect of B3 may get
diluted.
85

It has also been argued that as much as external regulation plays a vital role in banking
supervision, greater reliance must be placed on internal risk management.
86
Although a bank may not
be allowed to incorporate securitised products into its incremental risk charge, the capital charges of
the banking book will apply for securitisation positions under the B3 framework. With this
arrangement, the rules require banks to perform their own due diligence on securitisation positions
instead of relying solely on the assessments of regulatory and rating agencies.
87


83
Proposed Basel III Guidelines: A Credit Positive for Indian Banks, ICRA, 1 (Sept, 2010), available at
http://www.icra.in/Files/ticker/2010-September-Basel-III.pdf [Last Accessed on 2 April 2013].
84
Takayuki Usui, Corporate Governance of Banking Organizations in the United States and in Japan, 28 DEL. J. CORP. L. 563, 570
(2003).
85
M.Schüler, How Do Banking Supervisors Deal with Europe-wide Systemic Risk?, (Centre for European Economic Research,
Discussion Paper No. 95, Oct, 2003).
86
Richard Lartey, Is Basel III Indispensable for Ensuring Prudent Risk Management in Banking?, (May 29, 2012) available at
http://ssrn.com/abstract=2081739
87
N. Sawyer, Basel Committee improves Market Risk Framework, Risk Magazine, (Feb, 2009) available at
http://www.risk.net/risk-magazine/news/1496972/basel-committee-improves-market-risk-framework

73
TOWARDS THE ELECTRONIC POLICE STATE: ADDRESSING THE
CONCERNS
Shamba Dey
*

The electronic police state is one that engages in mass surveillance of telephone traffic, email, web and
Internet searches, radio, and other forms of electronic communication, including video surveillance. The Government
of India conceived the idea of the electronic police state in 2009 when it proposed to establish the Central
Monitoring System, which is similar to the surveillance program of the National Security Agency in the United
States of America. The formation of the Central Monitoring System has however actuated a public debate on the
violation of individual privacy coupled with the lack of transparency in surveillance operations which greatly
accentuates the possibility of abuse of Executive authority. This article thus proceeds in four parts. Part I reviews
mass surveillance systems as a necessary tool for fulfilling the social, economic and political aspirations of
individuals. Part II examines the concept of privacy in the light of changing technologies and evolving societal needs,
arguing that privacy is a broad, subjective, contextual and self-referential concept, and that there may be no
legitimate basis for protection of privacy against mass surveillance. This Part further argues that mass surveillance
systems have the potential to strengthen, rather than weaken privacy. Part III analyses the contentious argument
that lack of transparency in the operations of the Central Monitoring System and its consequential effects violate
civil liberties, fairness, and justice. Finally, Part IV discusses the possibility of overreach by the Executive and the
checks and balances necessary to mitigate such risks.
I. BACKGROUND: THE PURPOSE AND NECESSITY OF
SURVEILLANCE
Surveillance is undertaken with twin purpose in mind- one being welfare and the other
being security. This is true of both private organisations and the government. Private
organisations use surveillance and data collection to protect their physical resources and
information systems from external threats and to market their goods and services.
1
The
government uses surveillance, data collection, and data mining to identify problems, anticipate
and counter potential threats, govern populace and deliver valuable social welfare services.
2

Traditionally, government agencies across the world have collected and analysed
statistical data. Instances of such data collection include but are not limited to assessment of land
revenue, assessment of income of individuals and corporations for tax purposes, preparation of
census reports, birth and death certificates, preparation of ration cards, poverty lists and electoral
lists. The data so collected drives the planning and execution of the government’s agenda on
welfare. In fact, providing most of the basic social services such as welfare benefits to an ever-
increasing population and protecting the rights of people (such as rights against employment
discrimination) are difficult without extensive data harvesting tools because without these tools,

*
I
st
Year, LL.B., Government Law College, Mumbai.
1
See Fred H.Cate, Government Data Mining: The Need for a Legal Framework, 43 HARV. C.R.-C.L. L. REV. 43, 440 - 44
(2008) at 435 ("advances in digital technology have greatly expanded the volume of personal data created as
individuals engage in everyday activities").
2
Id.
74
beneficiaries would not otherwise be correctly identified. As David Lyon explains, “The
surveillance systems of advanced bureaucratic nation-states are not so much the repressive
machines that pessimists imply, but the outcome of aspirations and strivings for citizenship. If
government departments are to treat people equally, then those people must be individually
identified. To exercise the right to vote, one's name must appear on the electoral roll; to claim
welfare benefits, personal details must be documented. Thus, the individuation that treats people
in their own right, rather than merely as members of families or communities, means freedom
from specific constraints but also greater opportunities for surveillance and control on the part
of a centralised state.”
3
Surveillance,
4
therefore, is a way of governing.
With newer and faster developments in information technology, a greater level of
surveillance, one that extends to the monitoring, collection and analysis of information that may
not be voluntarily made accessible by the citizen becomes unavoidable. As technologies that let
users discover and analyse the current world trends become more powerful, governments seek to
use them for protection and welfare purposes.
5
For example, in Europe and United Kingdom,
governments have installed tele-care services that use remote monitoring technology to
enable vulnerable people to live independently in their own homes.
6
The technology employs
electronic sensors to transmit information about the user's location and patterns of behavior in
the user's home to an external hub, where it can trigger an intervention in case of an emergency.
Since 2005, China has begun to expand its surveillance through its Field Epidemiology Training
Program; Brazil and Argentina have chosen to use World Bank loans to develop surveillance
capacity in public healthcare, while the U.S. Agency for International Development has
redesigned its surveillance strategy to focus on the use of data to improve public health
interventions.
7
Additionally with the reduced cost of technologies,
8
there is opportunity for the
government to use these technologies to collect, collate and analyse more information.
Increased focus on surveillance also becomes necessary in light of the wide accessibility
of information and telecommunication technologies. Terrorist groups and other such
organisations use digital and mobile technologies to communicate with each other
9
and to cover
their identities. Since the September 11 attacks,
10
terrorist strikes have become a major cause of

3
DAVID LYON, THE ELECTRONIC EYE: THE RISE OF SURVEILLANCE SOCIETY 32-33 (1994) (Quoting NICHOLAS
ABERCROMBIE, SOVEREIGN INDIVIDUALS OF CAPITALISM (1994)).
4
As per the New Penguin Compact English Dictionary (2001) Penguin Books, ‘Surveillance’ means ‘close watch
kept over someone e.g. by a detective’. In the context of the paragraph, the term is not to be understood in its
literal sense, but in the sense of general data collection activity legitimately undertaken by any government.
5
James Dempsey and Lara Flint, Commercial Data and National Security, 72 GEO. WASH. L. REV. 1459, 1464-68
(2004) at 1468-69.
6
See Department of Health, Older People and Disability Division, Building Telecare in England (July 19, 2005; See
also, Sorell T., Draper H, Telecare, surveillance, and the welfare state, AM J BIOETH (2012) 12(9), 36-44.
7
See JAMISON DT, BREMAN JG, MEASHAM AR, et al, DISEASE CONTROL PRIORITIES IN DEVELOPING
COUNTRIES., (Washington (DC): World Bank, 2
nd
ed. 2006).
8
Patricia Bellia, The Memory Gap in Surveillance Law, 75 U. CHI. L. REV. 137, 142-53 (2008).
9
G Weimann, Terror on the Internet: The New Arena, the New Challenges, (Washington, D.C., United States Institute of
Peace Press, 2006) (describing Al Qaeda's use of the Internet); Audrey Kurth Cronin, Behind the Curve: Globalization
and International Terrorism, 27 INTL. SECURITY 30, 46-48 (2002-03); PHILIP BOBBITT, TERROR AND CONSENT: THE
WARS FOR THE TWENTY FIRST CENTURY, 55-57 (2008).
10
The September 11 attacks were a series of terrorist attacks launched upon the United States on September 11,
2001, see United States v. Mohammed, et al. D-126 Ruling.

75
concern for national defense, foreign and home affairs for most countries, including India.
Unlike in the nineteenth and twentieth century, an adversary today need not necessarily be
another nation; terrorist organisations, hackers and criminals have emerged as newer forms of
threat with a wide range of unprecedented challenges. Terrorists can move easily and change cell
phones and e-mail addresses at will, hackers can gain access to government computer networks,
and criminals can take advantage of weaknesses in digital networks to not only commit
conventional crimes such as embezzlement of funds but also perpetrate a whole new range of
offences like phishing.
11
The digital technologies that inadvertently aid the commission of such
offences necessitate the government to invest in counter-surveillance
12
to identify and prevent
threats posed by the use of such technologies by criminals. This modern-day form of terror
forces intelligence operatives to act swiftly and for this purpose, use new and expeditious ways to
gather information in order to preempt such crimes.
13
This is significantly different from the
older models of law enforcement where the focus has been on ex post apprehension and
prosecution of wrongdoers.
14
Today, modern surveillance makes it possible to prevent
wrongdoings ex ante.
Furthermore, unlike ordinary criminal investigations, national security investigations and
counter-terrorist surveillance often have remarkable breadth– spanning long periods of time,
multiple geographic regions, and numerous individuals, whose identities are often unknown to
the intelligence community at the outset and hence the need for collection and record keeping of
historical data on various aspects of individuals is inevitable. Data interceptions thus become
vital for gathering intelligence about terrorist organisations and unlawful activities. The very
nature of these crimes makes a strong argument in favour of giving the government a certain
level of latitude in the gathering of intelligence. The government cannot in fact identify
preemptively who a terrorist is, until after his or other people’s privacy has been ‘violated’.
Innocent people, such as unwitting neighbors of terrorists, may, have valuable counter-terrorist
information, which can be tapped and used for the protection of citizen’s right to a safe and
secure environment.
The existing system is a reactive system, relatively centralised, publicly managed, and
rooted in human discretion.
15
Manual patrolling and collection of evidence takes a very long
time, which can often lead to costly delays for both the victim and the government. However,
through an automated surveillance system, these functions will be performed on secured
electronic links and there will be minimum manual intervention. As Kozlovski explains, “By

11
Phishing is the act of attempting to acquire information such as usernames, passwords, and credit card details
(and sometimes, indirectly, money) by masquerading as a trustworthy entity in an electronic communication.
see Handbook of Information and Communication Security by Peter Stavroulakis, Mark Stamp, at 433.
12
Supra note 4. Here and henceforth (unless specifically mentioned to the contrary) the term ‘surveillance’ is to be
understood in its literal sense.
13
Judge Richard Allen Posner, Our Domestic Intelligence Crisis, The Washington Post, December 21, 2005: “..The
information that enables the detection of an impending attack may be scattered around the world in tiny bits. A
much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits
may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so
innocent. The government is entitled to those data, but just for the limited purpose of protecting national
security.”
14
Scott Charney, The Internet, Law Enforcement, and Security, PRACTICING L. INST., FIFTH ANNUAL LAW INSTITUTE at
944 (discussing the traditional model of law enforcement before the advent of new information technologies).
15
Nimrod Kozlovski, Designing Accountable Online Policing, 107
76
predicting when, how, and by whom a crime will be committed, it aims to enable efficient
intervention. Automated tools constantly monitor the environment to match users' risk profiles
against dynamically identified patterns of criminal behaviour. Patterns of previous computer
crimes are coded as ‘crime signatures’ which monitor for anomalies or deviations from ‘normal’
behaviour. The patterns of ‘normal’ behaviour are coded and an algorithm watches for a certain
level of deviation from them.”
16
Hence, interception through surveillance is instantaneous and
more reliable than fallible human officers. This leaves very little scope for violating the law;
17

even if a violation occurs, the surveillance systems can help in the investigations by quickly
providing more accurate evidence. It is perhaps against this backdrop that the government has
taken the initiative to build the Central Monitoring System (CMS).
II. THE ILLUSION OF PRIVACY
The project to build a national mass surveillance and data mining system in India began
in 2009.
18
The Central Monitoring System, which was reportedly deployed in 2013,
19
uses
advanced computer technologies to collect large amounts of personal data of all individuals. The
technology is used to monitor and record phone calls, to read emails and messages, to scan
Internet-based activities of individuals, to track the location of individuals in real time and to
analyse behavioural patterns of individuals based on the collected information. However, the
formation of the Central Monitoring System has raised serious concerns of violation of civil
liberties and individuals’ right to privacy. The debate over surveillance involves a clash between
the relevant public interests such as national security or the detection and prevention of crime on
one hand, and the individual’s interest in preserving his or her privacy on the other. Much of this
clash however results from a mistaken understanding of the term ‘violation of privacy’, and it is
especially so in the context of the changing information age. In this Part, the author examines
the spiraling complexity in distinguishing between private and public data and whether privacy
rights are at all violated when the government collects data about individuals.
Privacy in general means the right of an individual to live one's life in seclusion without
being subjected to unwarranted and undesired publicity,
20
to decide for oneself the extent and
degree of sharing one’s thoughts and feelings.
21
Privacy could also be interpreted as a property
right, giving individuals ownership over their personal data.
22
This latter view, in fact, originated
in ancient Athenian society
23
and thereafter found place in English and American jurisprudence.
Although it is an unconventional comparison to make, there are some similarities between
property and privacy rights. For example, just as authors or musicians have the right to prevent
duplication and propagation of their works, so too an individual can be said to have the right to

16
Id. at p.110.
17
MIREILLE HILDEBRANDT, JEANNE GAAKEER, HUMAN LAW AND COMPUTER LAW: COMPARATIVE
PERSPECTIVES, (Springer 2013) p.70.
18
Centralised System to Monitor Communications, Press Information Bureau, 26 November, 2009.
19
See Deepa Kurup, In the dark about ‘India’s Prism’, The Hindu, 16 June, 2013.
20
Kerby v. Hal Roach Studies, 1942 53 Cali. App. 207, 127.
21
ALAN WESTIN, PRIVACY AND FREEDOM, (New York: Atheneum 1967), 373.
22
W.A.Parent, Privacy, Morality, and the Law, PHILOSOPHY AND PUBLIC AFFAIRS, Vol. 12, no. 4 (Princeton, NJ.:
Princeton University Press, 1983), pp. 269-88; See generally, Lawrence Lessig, Code : Version 2.0 (2006).
23
BARRINGTON MOORE, JR., PRIVACY: STUDIES IN SOCIAL AND CULTURAL HISTORY (Armonk, N.Y: M. E. Sharpe,
1984), pp. 82, 108, and 124.
77
limit access to his personal data. In Pope v. Curl,
24
Curl, a bookseller, obtained and published,
without consent of the authors, personal letters written to and by well known literary figures,
including Alexander Pope and Jonathan Swift. Lord Chancellor upheld the privacy of Pope’s
letters on the grounds that the writer of a letter has a property right in his words. Similarly, in
Yovatt v. Winyard,
25
the Court extended property rights protections to cover personal secrets.
Thus, “what we now call ‘unfair competition’ and ‘plagiarism’ and ‘privacy’, were all wrapped
together under the principle of property”.
26

The author however contends that these concepts of privacy are very rigid and create
problems. Every individual is continually engaged in a personal adjustment process in which he
balances his want for privacy with his desire to reveal his personal matters to others.
27
Professor
Gary Marx comments on how individuals differ in the methods of communication of personal
matters and in their general approach to concealment and revelation. The societal notions of
gender are also illustrated. Society, on one hand; believes that women are more ‘public’ in the
sense of sharing their thoughts and feelings, and on the other hand due to the greater modesty
shown by women, they may be known to be more ‘private’. Regional variation may also exist.
“Thus persons in California, in particular, are often stereotyped as being more forthcoming in
expressing the personal. That also seems true of Americans in general relative to Europeans.”
28

It is due to the social and environmental requirements of the society which one has to
adjust to, that an individual, willingly and unwillingly, leaves traces of himself wherever he goes
and hence reveals private information to others. An individual has to work with other
individuals, live together and make friends. Such other individuals become aware of his habits
and behaviours. The individual is fully aware of the private information he shares yet he does so
because of reasons that are inherently social and perhaps, psychological too.
29
Exchange of
information can also happen without the individual’s awareness. Strangers in public places can
collect information about an individual. Likewise, talking on the cell-phone in buses, cars, trains
and other public places, reveals information about a person’s private and confidential matters in
part or in whole, to strangers. However, even when aware, an individual has to allow such
collection of personal data out of necessity and convenience. For example, CCTVs in hospitals,
hotels, shopping malls, traffic cameras, and parking-lot cameras capture a bulk of information on
a regular basis. Banks know information about an individual’s clients and amounts transferred.
Telephone and mobile operators know the numbers dialed, the duration of calls, messages sent,

24
(1741) 2 Atk. 342.
25
(1820) 37 Eng. Rep. 425,426 (Ch.).
26
MORRIS ERNST AND ALAN SCHWARTZ, PRIVACY: THE RIGHT TO BE LET ALONE (New York: Macmillan, 1962),
pp. 6-12.
27
Supra note 19.
28
Gary Marx, Murky Conceptual Waters: the Public and the Private, ETHICS AND INFORMATION TECHNOLOGY, 2001.
Vol. 3, no. 3, at 157-169.
29
Michael McFarland, SJ, Why We Care about Privacy, Markkula Center for Applied Ethics, Santa Clara University:
“These associations are not merely preferences or matters of convenience. Therefore social obligations, that is, all
that is required to maintain the complex web of relationships in which each person lives, are fundamental human
obligations. These obligations include the sharing of personal information, which is a necessary part of any
meaningful relationship, whether it is personal, community, political or bureaucratic. Friendship necessarily
requires self-revelation. Belonging to a voluntary association entails sharing something of one's history, one's ideas
and aspirations, and one's current circumstances.” available at http://www.scu.edu/ethics/practicing/focusareas/
technology/internet/privacy/why-care-about-privacy.html
78
and the whereabouts of an individual.
30
Mobile applications like GPS collect information about
user locations in very large quantities. Personal data therefore assumes a fluid nature- it flows
easily and eventually falls out of the control of the individual.
The same is true of the Internet, where such fluidity of data is greater. Search engines
reveal bulk of information about individuals in the form of comments made, statements written
and even videos. They also collect information about past searches made by individuals, which
are then used to drive audience-specific advertisements. Emails, sent and received, drafted but
not sent, spam mails, mailing lists are all stored by the service provider. This could be considered
by some to be an intrusion upon one’s privacy, the risk being assumed knowingly and voluntarily
by the individual.
31
The acceptance of such risk comes from explicitly consenting to the terms of
use, or implicitly by enabling cookies in their web browser.
Today most individuals see social networking sites as an important medium of
communication. Eric Schmidt, the CEO of Google, has rightly pointed out in an interview with
PBS, that “the next generation is infinitely more social online” and less private, “as evidenced by
their Facebook pictures”.
32
Facebook and Twitter store information about an individual’s
personality, habits, and opinions.
33
Status messages, posts, pictures and tweets, even if they have
been deleted from the view of the public are nevertheless known to the website’s operators.
34

Facebook itself tells other people what an individual is saying, where he is visiting and with
whom.
35
Data is transferred to Facebook's servers in the USA but users are not given sufficient
information about this and the terminology in Facebook's conditions of use and privacy
statements may not meet the legal requirements relevant for compliance of legal notice, privacy
consent, and general terms of use.
36

It must be stated here that the aim of these examples is not to draw a comparison
between the activities of private organisations and the Central Monitoring System or to suggest
that the government can collect data just because private organisations are also collecting data.
The aim is to underline the simple fact that new technologies have increasingly blurred the

30
"Apple denies tracking iPhone users, but promises changes", Computerworld, April 27, 2011.
31
See e.g., Smith v. Maryland, 442 U.S. 735, 745 (1979); United States v. Miller, 425 U.S. 435, 443 (1976).
32
Polly Sprenger, Sun on Privacy: 'Get Over It', Wired, January 26, 1999.
33
Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, New York Times, Sept. 9, 2007.
34
Facebook came under the scanner for the ‘User Content Posted on the Site’ clause in its ‘Terms of Use’ which
read: “You may remove your User Content from the Site at any time. If you choose to remove your User
Content, the license granted above will automatically expire, however you acknowledge that the Company may
retain archived copies of your User Content.

The ‘license granted’ refers to the license that Facebook has to your
‘name, likeness, and image’ to use in promotions and advertising. Facebook changed its terms of use on Feb 4,
2009. The new terms of use deleted the phrase that license would ‘automatically expire’ if a user chose to remove
content. By omitting this line, Facebook license extends to adopt users' content perpetually and irrevocably years
after the content has been deleted, Facebook Privacy Change Sparks Federal Complaint, PC World. Retrieved on March
5, 2009.
35
The Facebook privacy policy once stated, "We may use information about you that we collect from other sources,
including but not limited to newspapers and Internet sources such as blogs, instant messaging services and other
users of Facebook, to supplement your profile." Facebook Privacy Policy, Retrieved on December 8, 2010.
36
See compliant and settlement order of United States Federal Trade Commission (FTC) with Facebook available at
http://www.ftc.gov/sites/default/files/documents/cases/2011/11/111129facebookcmpt.pdf and
http://www.ftc.gov/news-events/press-releases/2011/11/facebook-settles-ftc-charges-it-deceived-consumers-
failing-keep); See Lane v. Facebook, 10-16380, U.S. Court of Appeals, Ninth Circuit (San Francisco).

79
distinction between public and private. Not only have individuals, on their own, given up much
of their privacy
37
to the digital space and physical space, but it has also become practically
impossible for individuals to control what other people say, know or think about them. What
used to be private information in the pre-information age is now increasingly becoming public
and “rather than approaching the public and private as one-dimensional, rigidly dichotomous
and absolute fixed concepts, they are best conceptualised as multi-dimensional (with dimensions
sometimes overlapping or blurred and at other times cross cutting or oppositional), continuous
and relative, or contextual, whose meaning lies in how they are interpreted and framed”.
38

However where huge volumes of private information is transferred from the secluded domain to
the public domain, an important question that lingers is whether the individual can still, in the
name of his right to privacy, control how the personal information (which is now public) would
be used by others.
In this regard, the Supreme Court of India has laid down an exception to the right to
control of information stating where a matter becomes a matter of public record, the right to
privacy no longer exists, and it becomes a legitimate subject for comment.
39
This means, there
can be no expectation of privacy once the private information becomes public, which
simplistically put, implies that there is a loss of ownership over personal data. The US Supreme
Court also takes a similar view: “What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection.”
40
This means that when the
police are using a beeper device to track a suspect’s car on public streets, it is capturing public
information because the suspect cannot legitimately expect to be private in a public place.
41

Similarly, when a person uses a telephone, he needs to realise that he must ‘convey’ phone
numbers to the telephone company, since it is through the telephone-company’s switching
equipment that his calls are completed. A subscriber knows that the telephone-company has
facilities for making permanent records of the numbers he dials, for he sees a list of his calls on
the monthly bills and the company does record information for legitimate business purposes. As
long as the telephone company is capable of recording and disclosing the numbers its customers
dialed through its electronic system, the customer cannot assume that the company’s employees
would not do so. It is too much to believe that a subscriber, under these circumstances, should
harbour any general expectation of privacy.
42
Similarly, it can be argued that there is no legitimate
expectation of privacy of data relating to an individual’s bank accounts, cheques and transactions
available with a bank, because the individual does not have ownership, possession, or control
over the data. Instead this data is now part of the stored business records of the bank.
43
If the

37
DANIEL SOLOVE, UNDERSTANDING PRIVACY, (Harvard University Press, 2008): “Although polls indicate that
people care deeply about privacy, people routinely give out their personal information and willingly reveal
intimate details about their lives on the Internet. Law professor Eric Goldman points out that people’s ‘stated
privacy concerns diverge from what [they] do.’ Canadian scholar Calvin Gotlieb declares that ‘most people, when
other interests are at stake, do not care enough about privacy to value it’.”
38
Supra note 26; See Govind v State of Madhya Pradesh, 1975 2 SCC 148 (SC held that privacy rights are not
absolute).
39
R. Rajagopal v. State of Tamil Nadu (1994) 6 SCC 632.
40
Katz v United States, 389 U.S. 347, 351 (1967).
41
United States v. Knotts, 460 U.S. 276, 281(1983).
42
Smith v. Maryland, 442 U.S. 735, 742-43 (1979); United States v. New York Tel. Co., 434 U.S., at 174 -175.
43
United States v. Miller, 425 U.S. 435, 446 (1976).

80
government issues a notice to the bank, it simply wants to inspect data that is in the control of
the bank. The same argument may be extended to an individual's email data held by Google
Mail, in stored form in its servers.
44
While the nature of the relationship of an individual with his
bank or telephone company may be different from his relationship with Google, the one thing
that is common in all these technologies is that the individual takes on the risk associated with
the transfer of data beyond his private domain by either putting himself into a stream of activity
that he doesn’t control
45
or by giving third party access.
A case where the actual conversations in a phone call or contents of an email are wire
tapped may require further analysis. Here, the subject matter is not public but a matter that an
individual seeks to preserve as private. There is no assumption of risk or voluntary release of
control. However, in the landmark case of Katz
46
, Justice Hugo Black of the US Supreme Court
declined to accept that phone conversations are constitutionally protected. On the contrary, he
opined that the natural uninvited risk of eavesdropping cannot be completely eliminated and
there can be no privacy protection against such eavesdropping.
47
Likewise, many in the legal
community are divided on the question of whether conversations and things intimately private
are at all subject to privacy protections. There are no bright line rules. Many US Courts have
found no expectation of privacy in the content of emails because of Internet Service Provider
(ISP) access.
48
Email always runs “the risk that an employee or other person with direct access to
the network service will access the email, despite any company promises to the contrary”.
49
Some
other courts have indicated in dicta that, because of third party exposure, email content is of
lesser protected status than mail or telephone content and that the privacy of email depends, not
on social expectation or whether the content is at issue, but on the fact of third party access.
50
In
India, wiretapping of phone conversations between two individuals would not amount to
violation of privacy if it can be satisfactorily shown that the recorded information had
relationship to public interest.
51
Considering the prevailing jurisprudence on personal liberty

44
Lessig, supra note 20, p. 205: “…unlike a telephone call, this content is saved in a searchable form. Companies
now invest millions in technologies that scan the conversations of employees that before were effectively private.
Both in real time and in retrospect, the content of conversations can become known”; See also, JEFFREY ROSEN,
THE NAKED CROWD: RECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS AGE (New York: Random House,
2004), 34–53.
45
Lessig, supra note 20, at 209.
46
Supra note 38.
47
See Dissenting Opinion of Justice Hugo Black.
48
McLaren v. Microsoft Corp., No. 05-97-00824-CV, 1999 WL 339015, at *4 (Tex. App. May 28, 1999) (asserting
defendant’s stored emails differed from tangible stored items because such emails were “first transmitted over the
network and were at some point accessible by a third party”).
49
United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996). at 418.
50
United States v. Charbonneau, 979 F. Supp. 1177, 1184 (1997); Leventhal v. Knapek, 266 F.3d 64, 74 (2d Cir.
2001); Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460-64 (5th Cir. 1994) (held that
stored e-mails not intercepted contemporaneously with transmission are not protected under federal privacy
laws).
51
§ 8(1)(j) of The Right to Information Act, (2005): “Information which relates to personal information the
disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted
invasion of the privacy of the individual unless the Central Public Information Officer or the State Public
Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest
justifies the disclosure of such information: Provided that the information which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person”.
81
under Article 21 of the Constitution
52
, one would therefore have to resolve the issue by carefully
measuring the interests at stake- privacy rights and national interest; balancing the two would
mean that the degree of eavesdropping permitted should “be directly proportional to its efficacy
and inversely proportional to its intrusiveness”.
53

What emerges from the above discourse is that the data collection activity of the Central
Monitoring System does not pose a privacy violation problem. Further, there seems to be no
reason why a conflict between the public interest and individual privacy needs to exist, when one
looks at privacy as a collective right. Discussions about privacy often take form around a
particular technology or social measure that violates privacy and hence it is argued that such
measure be rejected. However, it is wrong to treat privacy as an exclusive personal privilege, and
not in the light of its general importance as a public good.
54
For example, collecting names of sex
offenders and keeping them in the public domain may be seen by some as a violation of privacy
of the accused but such data serves to protect a community from future crime.
Similarly, permitting only consensual rather than mandatory testing of infants for HIV, with no
disclosure of results, is a danger to common good- the suffering of considerable numbers of
children that could be reduced with early detection. In this case, the right to life outweighs any
risk of discrimination against mothers. Similarly, “societies do not become totalitarian by use of
ID cards; they abuse ID cards because they are totalitarian. Democracy has the adaptability to
use ID cards and remain democratic”
55
because such technologies increase fairness and
accuracy,
56
which is absolutely essential if the government were to detect tax evaders, welfare
cheats, mafia, illegal immigrants and thieves who steal the very identities of citizens. “Reliable
identification can increase, not diminish, citizen's privacy and autonomy”;
57
if a system like the
Central Monitoring System that facilitates the collection of large volumes of data exists, it would
assist the government's agencies and enforcement officers in identification, and thereby
strengthen public welfare.


52
The Supreme Court has upheld the constitutional validity of interceptions, as provided in § 5(2) of Indian
Telegraph Act, 1885 and monitoring through its order dated December 18, 1996 and laid down guidelines
limiting its scope to five instances: “national sovereignty and integrity, state security, friendly relations with
foreign states, public order or for preventing incitement to the commission of an offence.”; See PUCL v. Union
of India, AIR 1997 SC 568, wherein the Court rejected the notion of ‘prior judicial scrutiny’ as a procedural
safeguard and accepted the contention that administrative safeguards would be sufficient. More recently, in
consistency with Art 19(2) of the Constitution, § 69 of the Information Technology Act, 2008 has expanded the
power of the Government to decrypt information and conduct interception which may be exercised when it is
necessary or expedient to do so in the interest of the sovereignty or integrity of India, the security of the State,
friendly relations with foreign States or public order or for preventing incitement to the commission of any
cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to
intercept any information transmitted through any computer resource.
53
ALEXANDER DIAZ MORGAN, A BROADENED VIEW OF PRIVACY AS A CHECK AGAINST GOVERNMENT ACCESS
TO EMAIL IN THE UNITED STATES AND UNITED KINGDOM, INTERNATIONAL LAW AND POLITICS, Volume
40:803, at 843.
54
P REGAN, LEGISLATING PRIVACY: TECHNOLOGY, SOCIAL VALUES, AND PUBLIC POLICY. Chapel Hill, U.S.: The
University of North Carolina Press 1995. ("If we did recognize the collective or public-good value of privacy, as
well as the common and public value of privacy, those advocating privacy protections would have a stronger basis
upon which to argue for its protection.”).
55
AMITAI ETZIONI, THE LIMITS OF PRIVACY, New York 1999, p.184.
56
Eugene Volokh, The Benefits of Surveillance, THE RESPONSIVE COMMUNITY, Fall 2002, at 9.
57
Supra note 53.
82
III. LACK OF TRANSPARENCY AND FEAR OF MISUSE
In the electronic police state, the Central Monitoring System would monitor the
individual after initial collection of data by building a profile of the individual. The concern here
is that the data collected might be misconstrued or misused against the individual by constructing
a wrong profile about him. This is because of the lack of transparency- individuals are
apprehensive about the rules governing the accessibility and interpretation of the data and the
reasons and implications of such surveillance. Consider an example. A man staring fixedly at an
individual bothers that individual not because the man staring might discover what the individual
is doing privately, but because the man has violated norms of socially acceptable behavior and
may possibly commit acts of nuisance against the individual in future. This, in many ways, may
also be true of people’s perception about government surveillance. Individuals do speak of
‘privacy’, but what frightens them is not the abstract notion that the government might be
closely watching them; rather, the possibility that the information gathered will be misconstrued
or abused. People may fear that a government agent, by threatening to release information, can
exert illegitimate pressure on them. They may be afraid of being falsely incriminated based on a
pattern of circumstantial activities. This brings out an essential difference between the privacy of
the government and the privacy of individuals: the government has greater power than
individuals. When the government's privacy is violated through unauthorised disclosure of
classified documents, the government can prosecute the leaker, or employ other means to
prevent harm. In contrast, individuals have far less power and fewer ways to protect themselves.
Under these circumstances, individuals would find it “harder to do anything that deviates from
accepted social behavior”.
58
Most people would be afraid to stand apart, to be different, even if
there is no explicit threat of retaliation. Hence individuals would feel that it is better to conform
because they would not know what the technology is capable of interpreting.
However, such fears of misinterpretation and misuse appear to the author to be far too
remote for two reasons. First, misinterpretation and misuse can happen at the hands of any
person who stores any form of information, whether he is a private party or a government agent,
and consequent harm can be inflicted upon an innocent person. While on one hand bona fide
information can be passed on to the police (such as naming a tax evader), on the other hand any
malicious person can also give false information to the police about an innocent person and
initiate a criminal investigation against him or get him wrongfully detained. In no society, have
people been absolutely free from wrongful and arbitrary interventions of the state authorities or
private parties. The important point to note here is that people can become victims of abuse
even when they have strong control over their personal activities and there is little government
surveillance. On the contrary, government surveillance can help reduce the misuse of intelligence
against innocent citizens, such as preventing sale of personal data by an Internet company to
third parties, bogus job advertisements or credit card frauds. Similarly, the Central Monitoring
System, being more accurate and consistent, can also limit the risk of government abuse: the
cameras that might video-tape an act of robbery can also video-tape evidence of police

58
Michael McFarland, SJ, supra note 27; Westin, supra note 19, p.20-32; CARL J. FRIEDRICH AND ZBIGNIEW
K.BRZEZINSKI, TOTALITARIAN DICTATORSHIP AND AUTOCRACY, (Cambridge, MA: Harvard University Press,
1963), p. 179; Brandeis and Warren, The Right to Privacy, 4 HARVARD L.REV. 193 (1890) at 196.
83
misconduct. Video-tape evidence can decrease the risk that the wrong person would be arrested.
Second, the Central Monitoring System only aims at detecting the possibility of crime and
deviations from law and order. The task of enforcement, however, is ultimately upon the police,
military, or other departmental authorities, who would have to act within the due process of law.
Thus, even if misinterpretation of data occurs resulting in violation of any legal right of an
innocent person, there is always a remedy available against the enforcing authority that has made
the mistake, whether willfully or not.
An important practical question that arises here is whether the individual who feels that
his protected interests are violated must bear the burden of proof. In this regard, legal scholar
McCormick writes that: “The proponent of such a ‘disfavored contention’ should have the
burden of proof.”
59
The individual moving to suppress evidence and seeking exclusion of
probative facts should bear some burden in showing the need for such exclusion. However, the
burden may also shift to the State to justify that there has been no violation of privacy in the
surveillance act complained of.
Surveillance in itself does not prevent individuals from access to the judiciary. This
means that there is no reason why an individual has to be any overtly careful about what he says
on a social networking site or who he associates with simply out of fear of the Central
Monitoring System’s profile building ability, unless such expression or association is prohibited
by a statute. Ideally, where one is not committing any unlawful act, there is no reason to believe
that he would be subject to incrimination, detention, enquiry, or labelling by the Central
Monitoring System. However, where one has a history of unlawful acts, his profile may be placed
on a ‘caution-list’, and where there is sufficient apprehension, the government may solely for
purposes permitted under law proceed to investigate and take preventive measures. Although
individuals deeply fear the spill-over of data into the hands of others, but as already discussed in
the previous section, the law provides protection only when there is a legal basis and legitimate
expectation of privacy, but not in all cases.
60
If there is no legitimate expectation of privacy to be
found in the expressions and associations of an individual, there may not be much legal ground
to claim his privacy, even though he may fiercely want to preserve it.
61
However at the same
time, law enforcement officers should also satisfy the court of the valid grounds for monitoring
the activities of the plaintiff, retrospectively, failing which the injured plaintiff can recover
damages.
What excuses the lack of transparency in the activities of Central Monitoring System is
the need for secrecy in certain government operations. In order to function, government
agencies sometimes need to operate away from the public eye. Certain sensitive police and
military operations and defense strategies need to be carried out secretly. Diplomats may need to
take different approaches with different States. The monitoring techniques and algorithms used
by the Central Monitoring System would assist the operations of government decision-makers.
Reasonable restrictions need to be placed on access to data, especially when it concerns national

59
MC.CORMICK ON EVIDENCE §337, at 786 (3rd ed. 1972).
60
See Malak Singh v State of Punjab and Haryana AIR 1981 SC 760.
61
Govind v State of Madhya Pradesh, 1975 2 SCC 148 (The Supreme Court held that constitution makers did not
intend to protect mere personal sensitiveness).

84
security. While transparency of operations may be important, it cannot be taken to mean that the
government has to reveal how the algorithms make predictions, who analyses the data, how long
the data is stored etc., because these revelations can be easily exploited by perpetrators to their
advantage and frustrate the whole purpose of surveillance.
IV. SAFEGUARDING AGAINST THE EXECUTIVE
Transparency requires self-restrained use of power
62
and more so because invisible power
can lead to abuse. Fear of such abuse led the Roman satirist Juvenal to question: quis custodiet ipso
custodes, or “who watches the watchers?”
63
Without considerable oversight, “the veil drawn over
access to information may become an impenetrable wall, with the Judiciary or the Legislature
loathing to second-guess those responsible for ensuring national security”
64
, and none may
inspect and check the use or abuse of such power.
65
Thus, what should be a legitimate reason for
concern is not the fact that the activities of CMS seem to be against privacy rights or are not
entirely transparent but the possibility that with more information in the control of the
Executive branch, the balance of power may tilt in its favor.
The Executive branch serves as the public’s agent for purposes of implementing and
enforcing the regulatory mandates of the Parliament and there are agency costs in this
arrangement when administrators use their position to gain advantage over others. As Justice
Jackson explained in Irvine v. California, the duties and responsibilities of Executive officers are
“to enforce the laws, to investigate, and to prosecute. Those charged with this duty should not
be the sole judges of when to utilise constitutionally sensitive means in pursuing their tasks”.
66

With regards to the CMS, there is a risk that the Executive branch agents may breach the
authority vested in them and use the CMS to advance ulterior purposes.
67
Information collected
surreptitiously can be used to blackmail or discredit opponents by revealing embarrassing secrets.
Indian political history furnishes numerous examples of this phenomenon.
68
Officials, in
particular political positions, have been tempted to serve their own goals. When there is too
much intelligence in the hands of the Executive, it can also hide its failures easily. This would
ultimately defeat the whole objective of protecting public interest for which the CMS is designed.
Deterring such behavior by Executive branch agents is a critical component of our
constitutional system and to ensure this, it is necessary to put restraints on the Executive branch
and keep the CMS insulated from unnecessary Executive interference. Placing it under the
exclusive control of the President of India, or the Prime Minister’s Office, or the Research and
Analysis Wing are some of the options. The CMS should be allowed to carry out surveillance and

62
Dawn Johnsen, Functional Departmentalism and Non-judicial Interpretation: Who Determines Constitutional Meaning?, 67
LAW & CONTEMP. PROBS. 105, 115 (2004) (“The effectiveness of...principled self-restraint and external political
checks in turn depends heavily on the traditional values of transparency and accountability.”)
63
Satires (Satire VI, lines 347–8).
64
Laura Donohue, Anglo-American Privacy and Surveillance, 96 J. CRIM. L.& CRIMINOLOGY 1059, 1167-70 (2006), at
1193.
65
Griffin Dunham, Carnivore, the FBI’s E-mail Surveillance System: Devouring Criminals, Not Privacy, 54 FED. COMM. L.J.
543, 554 (2002) at 562.
66
See 347 U.S. 128, 132, 317 (1954) (internal citation omitted).
67
Terry Moe, Politics and the Theory of Organisation, 7 J.L. ECON. & ORG. 106, 124-25 (1991).
68
See, Saikat Dutta, We, The Eavesdropped, OUTLOOK, May 3, 2010.
85
arrive at its findings purely on the basis and strength of the facts it collects and by going
dispassionately into the merits and demerits of those facts. Proper and routine disclosures about
its activities through formal notifications, hearings, briefings, written submissions and
testimonies have to be made to both houses of the Parliament.
An appropriate judicial authority also needs to be set up for the purpose of scrutiny over
the Executive’s purported violations of the privilege held by the CMS. Judicial oversight however
need not mandate that law enforcement officers must conform to the requirements under the
traditional system of warrants. It could rather be a simple system of regular reporting and
auditing. This is because surveillance practices in an electronic police state, aim to shift from
operations targeted at individual suspected persons to operations which do not identify targets at
the very onset but focus on interpreting behavior patterns based on data and information.
Alternatively, courts may strengthen judicial review by reconsidering or amending the existing
jurisprudence on privacy to recognise e-mail, social networking technologies and advanced
mobile communication technologies as sui generis rather than relying on imperfect analogies to
older technologies.
Post-acquisition minimisation procedures need to be designed to limit the powers of the
Executive branch officials to only those materials that fall legitimately within their purview.
Minimisation would mean destruction of inadvertently acquired communications of citizens at
the earliest practicable point, if it does not contain foreign intelligence information or evidence
of a crime or matters of serious national interests. All such material acquired must be destroyed,
say within five years, and for Internet transactions, say within two years, from the expiration date
of collection.
Lastly, the CMS and its officials should be made subject to another layer of monitoring.
Their activities need to be regularly monitored through another computerised surveillance system
to check for tendencies of agents to overreach or to leak information for malicious purposes.
The operations of this second layer of monitoring may follow that of a corporate internal audit
committee. The second layer may also be composed of non-agency personnel and this second
layer can be privy to confidential surveillance to assure compliance with existing privacy
protections.
V. CONCLUSION
The government's most important technique of control is no longer merely watching or
threatening to watch individuals. It is actively analysing and drawing connections between data.
Much surveillance occurs without any knowledge that one is watched. Data mining technologies
can record perfectly innocent behavior that no one is particularly ashamed of and draw
surprisingly powerful inferences about people's behavior, beliefs, and attitudes. Over time, these
tools will only become more precise and effective. Thus the problem today is not that fear of
surveillance will lead individuals to docile conformity, but that even the most innocent and
seemingly unimportant behaviors can increase knowledge about both the individual and others
connected to him. Individual behavior may tell things about individuals that they may not even
know about themselves in the first place. In addition, knowledge about some individuals can
generate knowledge about others who are not being directly watched. Individuals can no longer
86
protect themselves simply by preventing the government from watching them, for the
government may no longer need to watch just them to gain knowledge about them.
For many individuals, such extra-ordinary methods of surveillance pose a significant risk
to privacy and, under an extremist view, represent a first step towards an Orwellian police state.
However, as the author in this article shows, such extremist rhetoric exaggerates the threat of
surveillance, especially, in an increasingly digital world, where individuals are no longer armed
with appropriate tools to construct their personal privacy barriers. Besides, for five decades, the
Supreme Court seems to have allowed itself to be guided by crime control, public interest, and
security concerns which has resulted in an abstract body of jurisprudence that is unwilling to
fortify and protect individual privacy against government invasions. This makes the invocation of
privacy rights a difficult exercise even in very sensitive cases. Lastly, even though security
concerns justify the need for surveillance systems in a country like India, surveillance has also
begun to offer a wide range of economic and social benefits by aiding in large-scale welfare
programs. This further strengthens the case for deploying mass surveillance to better manage the
day-to-day activities of the government. Thus, surveillance will become a permanent feature of
governance, in a manner that will be as ubiquitous in time as the familiar devices of the
regulatory and welfare states, and consequently gain greater acceptance in law. However at the
same time, it is important to ensure that the wisdom of judiciary is not blinded by advances and
marvels of technology alone but it must consistently maintain the delicate balance between
ensuring better law and order systems and securing the contours of personal liberty that are
embedded in the Constitution.
87
ESTABLISHING THE JURISPRUDENCE AND CONTEMPORANEOUS
RELEVANCE OF INSTANT CUSTOMARY INTERNATIONAL LAW
Sarthak Malhotra
*
and Sujoy Sur
**

Customary International Law has been and is one of the foremost sources of international law. However, in a
world where time and systemisation are of utmost importance, traditional Customary International Law, at times,
comes across as rather rigid and unmethodical in establishing and espousing binding customary rules. The solution to
this difficulty has been achieved in the form of Instant Customary Law, where a much greater emphasis is placed on
the legal intent or the subjective element of opinio juris rather than consistent state practice. Instant Customary Law
claims that the legal intent of a state accompanied by a minimum amount of state practice in accordance with the legal
intent is sufficient to establish a customary rule which binds the state. This emerging concept of instant custom in
international law has gripped the attention of many and as a result, much literature has been devoted to outlining its
contours and understanding its underlying jurisprudence. An important factor contributing to the increased recognition
of Instant Customary Law is its ability to address the shortcomings and inadequacies of traditional Customary Law.
After establishing the jurisprudence of Instant Customary Law, this article delves into the practical aspect of Instant
Customary Law, by taking some contemporaneous instances which further substantiate its relevance and its efficiency
as a source of law in modern times. In that stride, the article will discuss, inter alia, – the legally binding effect of UN
resolutions in light of the ‘Bush Doctrine’, stance taken by the international community towards Libya with respect to
the recent Arab Spring revolution and how the new age web-based social platforms have become an integral medium to
discern the legal intent, i.e. opinio juris of states. Finally, this article will strive to establish how the jurisprudence of
Instant Customary Law is congruous with the present day scenario and needs to be acknowledged and understood by
the international community at large.
I. INTRODUCING THE LEGALITY OF CUSTOMS
Customs have played a principle role in the development of legal systems around the globe.
The traditionalistic temper, which customs usually emanate, have given them a primordial but
persuasive hold over our legal rules and regulations.
1
Customs are usually practices in the early stages
of legal developments, more often than not unwritten and uncodified; their survival ultimately
protracted because of what can be called an aura of historical legitimacy.
2
The gravity of customs as
laws in most of national legal systems has gradually diminished over the past couple of decades
3
with
the codification of laws, modernisation of legal machinery and the presence of strong legislature.

*
II
nd
Year, B. Com. LL. B, Gujarat National Law University.
**
II
nd
Year, B.A. LL. B, Gujarat National Law University.
1
See generally M.N. SHAW, INTERNATIONAL LAW, (Cambridge University Press, 2003).
2
See e.g. R. M. UNGER, LAW IN MODERN SOCIETY: TOWARDS A CRITICISM OF SOCIAL THEORY, 49 (New York: Free
Press, 1976), who notes that customary law can be regarded as ‘any recurring mode of interaction among individuals
and groups together with the more or less explicit acknowledgement by these groups and individuals that such
patterns of interaction produce reciprocal expectations of conduct that ought to be satisfied’; See also R. DIAS,
JURISPRUDENCE, ch 9, London, (5
th
ed. 1985), and H. L. A. HART, THE CONCEPT OF LAW, Oxford (1961).
3
See H. VAN HOOF, RETHINKING THE SOURCES OF INTERNATIONAL LAW, 114 (1983).
88
This however, has not been the case with international law. Customs in international law still carry a
lot of weight and precedence in governing the affairs between States, primarily because international
law is still burgeoning and lacks any centralised institution to which all the States conform and
accede to. Secondarily, the body of written norms alone cannot serve as a basis for a coherent legal
order with the consequence that the lacuna must be filled by unwritten rules and principles i.e.
customs.
4

Customary International Law can be said to be broadly incorporated of two elements:
patterns of state practice or behaviour and patterns of a psychological belief that such behaviour is
‘law’ which is termed as ‘opinio juris sive necessitatis’.
5

Although Article 38(1)(b)
6
of the Statute of the International Court of Justice (ICJ Statute)
defines custom as an ‘evidence of a general practice accepted as law’, there is no concurrence on
how to elucidate the two elements of this definition.
7
In this paper, the authors will attempt only to
clear the misconceptions surrounding the former of the two elements in the above definition, while
acknowledging that the latter element is also not free of incongruity. The issue of general state
practice principally deals with the leitmotifs of what kind of activities constitute state practice and
the legality of those state actions in light of the psychological element of International Customary
Law i.e. opinio juris, the issue which this paper specifically focuses on. The principle requirement of
state practice is that it should be prolonged over a period of time and recurring to get a legal
attestation from the international community. State practice being an objective element was
concentrated upon by courts and was used to ascertain the behavioural patterns of states, thus,
inductively determining the customary arrangement between States.
8

However, in the Nicaragua case
9
the ICJ initially defined customary law constituting both
state practice and opinio juris, but on a subsequent analysis of facts the ICJ relied and concentrated
only on the element of opinio juris without directing any analysis of state conduct.
10
The Court in
principle upheld the two-pronged approach, while arguably in substance it only relied on the element
of opinio juris.
11
What can thus be safely concluded is that the element of psychological intent of the
state may hold precedence over actual state practice especially in circumstances where sufficient
instances of putting that intent into practice have not been afforded to a state. Waiting for such
instances to first occur and for the state to then apply its ‘belief’ of a ‘custom’ to such instances, so

4
Petersen, infra note 7.
5
Opinio juris sive necessitatis was first formulated by the French writer Francois Geny to differentiate between legal
custom and mere social usage. See generally François Gény Méthode d’Interprétation et Sources en Droit Privé Positif, ¶ 110
(1889).
6
United Nations, Statute of the International Court Of Justice, June 26, 1945, art. 38(1)(b).
7
N. Petersen. Customary Law without Custom-Rules, Principles, and the Role of State Practice in International Norm Creation, 23
AM. U. INT'L L. REV. 275 ( 2007).
8
B. SIMMA, International Human Rights and General International Law: A Comparative Analysis, in THE PROTECTION OF
HUMAN RIGHTS IN EUROPE, IV COLLECTED COURSES OF THE ACADEMY OF EUROPEAN LAW, 153, 216 (Vol. 2
1993).
9
Infra note 68.
10
Id.; Supra note 7.
11
Infra note 13.
89
that it may develop into a concrete practice and can be upheld as a proof of a binding custom, is
what makes the traditional International Customary Law a particularly long and tedious process.
Moreover, jurists and scholars have often debated and concurred on the kind of activities
which envisage state practice but the issue of duration of that state practice and its recurrence has
been an area of constant gainsaying and disagreements. In the North Sea Continental Shelf cases ICJ
pronounced that merely a passage of a short period of time will not necessarily be a bar to the
formation of a new customary law, it is just that the state practice must be in recognition to the rule
of law involved.
12
In general, the time element is considered to be dependent upon the ‘circumstance
of the case and the nature of usage in question’ and has not been conclusively settled, thus,
providing scope for incertitude and deliberations.
13
With the development and branching of law in
fields which are evolving at a fast pace, the element of time has come into question, not only
because time is of great essence in modern times but also because there is no duration of state
practice specified in the international legal framework. This has given the scope for a wider
interpretation, possible under the opinio juris element, thus, prevailing in magnitude over the element
of state practice to give us an ‘Instant’ Customary International Law.
The term Instant Customary International Law in itself is not new but its piecemeal use by
the international community over the years in contemporary matters of international law is making it
gradually grow in importance. In light of the contemporary phenomenon of social media and trend
setting practices by some states, the increasing importance of Instant Customary Law, which some
believe is a paradoxical doctrine in itself as it over-rides the very focal point around which a custom
revolves - time, will now be examined and reflected upon.

II. ESTABLISHING THE JURISPRUDENCE OF INSTANT CUSTOMARY
INTERNATIONAL LAW
The concept of custom offers an appealing sense of simplicity. Yet, upon closer analysis, it
almost mystically transforms into a perplexingly complex theoretical dilemma. The dilemma is
reflected in the ‘traditional’ view of custom formation.
14
This dilemma is because of the requirement
of prolonged state practice along with a ‘belief’ in that state practice by a rule of international law.
The dilemma intensifies when these requirements are insisted upon for formulation of something as
foundational as rule of law.
15
Instant Customary Law, as it will be seen further, is free of any such
uncertain ‘practice over time developing into belief’ loops, as it mainly relies on the legal element of
opinio juris.

12
The North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany v.
Netherlands), ICJ Reports, Feb 20, 1969, 3, 29, 41, 43, 72 ILR (1969).
13
Supra note 1, at 76.
14
J.L. Slama, Opinio juris in Customary International Law, 15 OKLA. CITY UL REV. 603 (1990).
15
Id.
90
The practice of Instant Customary International Law, although, considered a ‘modernist’
approach finds its roots in the mid nineteenth century, as old as the concept of International Law
itself.
It was in 1840 that Puchta and Savigny put forth the view that custom was “merely the
immediate and spontaneous revelation of the common popular sentiment”.
16
They were the first to
instigate the line of thinking, which focused more on the subjective element of state practice instead
of the state practice itself i.e. the ‘psychological’ element of opinio juris. Prior to this, a majority of the
theories reiterated that material usage forms the basis of custom. Puchta and Savigny contended the
formation of custom on the basis of this ‘psychological’ element only. They argued, “If 'law' is the
expression of popular consciousness or will, then the overt or tangible aspect of custom dwindles in
relevance and importance. So long as we can discover the popular sentiment, what need is there for
an overt act or ‘precedent’?”
17

Further, it was Bin Cheng in 1968 who is formally accredited to have introduced the concept
of ‘Instant’ Customary International Law.
18
Bin Cheng argued that it is only opinio juris which is
necessary to constitute a binding customary law. Practice does not have any constitutive role to play
in the establishment of customary law; rather it has only an evidentiary function to play.
19
In Bin
Cheng’s opinion, the U.N. Resolutions on Outer Space,
20
which had been adopted unanimously,
constituted Instant Customary Law and required no further proof of state practice. Bin Cheng laid
complete emphasis on the psychological element of opinio juris considering it to be more logical and
discernible.
The traditionalist view, however, established itself as ‘word of law’, especially after Article
38(1)(b) of ICJ Statute was interpreted as the re-iteration of the two traditionalist elements of opinio
juris and state practice. Professor Anthony D’Amato gave a digressive view in 1971
21
, criticising the
traditional view as being “over complicated”. Traditionally, practice was a determining constituent
element in understanding and deriving customary international law, as the courts had to objectively
concentrate on the state practice and induce the law by collecting and systematising facts of state
conduct. He criticised the traditionalist view by arguing against the most palpable conundrum
present in its line of thinking, that of the indefinable repetitions of a usage to generate a legal
obligation, declaring it as inconsistent and muddled. Instead, he reformulated the concept of
determining customs into simpler and discernible elements of “articulation” and “act”.
22
Professor
D’Amato’s theory suggests that extension of existing articulation theory that allows states’
articulations to anticipate the element of practice, thus letting international state actors signal how

16
ANTHONY D’AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW, Ithaca, 274, 11 (NY and London Cornell
University Press, 1971).
17
Id.
18
Bin Cheng, United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law? 5 INDIAN J. INT’L L. 23 (1965).
19
B. Simma & P. Alston, Sources of Human Rights Law: Custom, Jus Cogens, and General Principles, 12 AUST. YBIL. 82 (1988).
20
See G.A. Res. 1721, U.N. GAOR, 16th Sess., Supp. No. 17, U.N. Doc. A/5100 (Dec. 20, 1961); G.A. Res. 1962, U.N.
GAOR, 18th Sess., Supp. No. 15, U.N. Doc.A/5515 (Dec. 13, 1963).
21
Id.
22
Id.
91
they might wish the norm to develop before any specific incidence of conflict occurs.
23
States fulfill
the articulation component by making ‘announcements’ of their intentions: announcements that
they may make through formal unilateral statements as well as through bilateral or multilateral
informal understandings.
24
The States then act upon the articulations, which are based upon
evidentiary motivations, so pronounced in a significant and real way, thus, substantiating the
articulation. Therefore, once the act occurs, the previously articulated rule or pronouncement takes a
life of its own and manifests itself into a rule of law capable of being cited as a custom in similar
instances arising in future.
25
A state, therefore, at the bare minimum, can cite one instance of an act
following the articulation to proclaim it as a customary international law. D’Amato, thus, set the
precedent for the claim-oriented approach
26
, but it certainly gave a much more systemised and
uniform method of recognition of international customary rules as compared to the traditional view
which D’Amato himself pilloried as “mystical jumps from non-law to law according to the number
of repetitions”.
27

Bin Cheng further espoused this approach by contending that the animus, the psychological
element, has been of cardinal influence in many cases of the Permanent Court of International
Justice
28
and International Court of Justice
29
. Cheng, by psychological element, did not intend to
mean so much the mental process or inner motivation of a State when it performs or abstains from
acts,
30
he meant rather the acceptance or recognition of, or acquiescence to, the binding character of
the rule in question implied in a State’s action or omission, or in other words, it being a rule of
general law binding on all.
31
Cheng further argued that the role of usage in the establishment of rules
in international law hold a purely evidentiary function and by no means is it necessary that the usage
should be prolonged or should be consistent “state practice” as such, provided that the element of
opinio juris can be clearly established. In international law the states are their own lawmakers,
32

therefore, logically the binding force of rules and regulations of international law rests with the
consent or acquiescence of the state. If states consider themselves bound by an internationally
accepted rule of law or a rule between two states then it should be treated as opinio juris, as long as
the rule does not infringe the right of third states not sharing the same opinio juris. Here, Cheng

23
V. Fon & F. Parisi, International Customary Law and Articulation Theories: An Economic Analysis, INT’L L. & MGMT. R., 202-
203 (2006).
24
Id.
25
B. Langille, It's Instant Custom: How the Bush Doctrine became Law after the Terrorist Attacks of September 11, 2001, 26 BC
INT'L & COMP. L. REV. 145 (2003).
26
Id.
27
Niels, Supra note 7; Anthony D’Amato was very vocal for a change in the International Customary Law Scene,
making him denounce the traditional view as self-contradictory and incoherent. Besides vouching for the articulation
approach, he also talked about special customs (see The Concept of Special Customs in International Law) existing between
states as opposed to the “general principles” as generalised in the Statute of ICJ, art. 38(1)(b).
28
E.g. The case of the S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 28.
29
E.g., Asylum Case (Columbia v. Peru), [1950] ICJ Rep. 266 at 266, 276; Right of Passage Case (Portugal v. India),
[1960] ICJ Rep. 6, at 42-43.
30
P. Guggenheim, Contribution å l’histoire des sources du droit des gens, 94 RECUEIL DES COURS (1958).
31
Cheng, Supra note 25.
32
S.S. Lotus (France v. Turkey), [1927] P.C.I.J., ser. A, No. 10, at 18: ‘The rules of law binding upon States therefore
emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles
of law...’.
92
focuses on the aspect of local customary law, a customary law existing between two states. Professor
D’Amato has also deliberated on this issue, which is a divergence from the general principles of
international customary law – a special customary law between two states.
33

Cheng’s proposition of an Instant Customary Law is also re-iterated in Professor Stein’s
conclusion that opinio juris is no longer seen as a consciousness that matures slowly over time, but
instead as a conviction that instantaneously attaches to a rule believed to be socially necessary or
desirable.
34

It is this desirability that we will focus our attention upon. The tumultuous process of the
establishment of a legally binding custom over decades seems to be an incongruous concept in recent
times where immediacy of legal sanctions and modish state actions are needed, in a world which is
nimbly recasting and where new concepts require advanced norms to govern themselves. With the
formation of so many international organisations, the process of custom creation has been facilitated
and hastened to a great extent. For example- the UN provides a forum for the states to exchange and
harmonise their views to arrive at some form of compromise.
35
Space, social media, human rights are
some of the numerous concepts which have gained significant force in global laws and cannot be
contained by the rigidity of legal philosophy of the older days. Professor Sohn following on the lines
of Professor Jennings
36
noted that,
“…The methods of developing new rules of customary international law have greatly
changed since the Second World War. These changes have not been imposed on states by
any external authority; they are the result of a voluntary acceptance by states of the need to
adapt the methods of law-creation to the needs of the rapidly growing and changing world
community. Any prior restrictions on the law-creating process were self-made, and they can
be changed by the very method that established them in the first place. The rules contained
in Article 38 of the Statute of the International Court of Justice were appropriate at the time
of their adoption, and they are flexible enough to allow new ways of ascertainment of the
existence of a rule of customary international law.”
37

The pertinent question under consideration, therefore, should be that what kind of
acceptance and regulations can be constituted to have a legally binding effect on the states. We will
mainly focus upon the declarations of bodies of universal legal importance and laws endorsed by
some states, which have been participative in treaty making pertaining to the area concerned, or
which can be said to be “superpowers” in their respective areas.
38


33
D'Amato, The Concept Of Special Custom In International Law, 63 AM. J INT’L. 211 (1969).
34
T. L. Stein, Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 HARV. INT'L. LJ
457 (1985).
35
ANTONIO CASSESE, INTERNATIONAL LAW, Oxford, (Oxford University Press, 2005).
36
R. Y. JENNINGS, The Identification of International Law, in INTERNATIONAL LAW: TEACHING AND PRACTICE 8 (1982).
37
Louis B. Sohn, Generally Accepted International Rules, 61 WASH. L. REV. 1073, 1079 (1986). Evolving methods of
developing new rules of customary inter- national law are the result of the need to "adapt the methods of law-creation
to the needs of the rapidly growing and changing world community”.
38
Cheng, Supra note 25. Bin Cheng in his paper gave admittance of many delegates who believed that in certain cases
the countries which have a sort of monopolistic control in particular spheres, those countries should assent to the
93
Since the inception of the United Nations as a stable international body and the
International Court of Justice as the insurmountable apex judicial world organ, the legal effect of
declarations, resolutions, international cases and treaty making has gained a strong binding force.
Resolutions of states can only be considered to have a binding effect if they are able to establish the
opinio juris and substantiate it with an evidence of realising the rule in practice. Considering the legal
standing which the UN has in the present scheme of things, it will be convenient to take as a starting
point, the relationship of General Assembly Declarations with customary law.
39
Resolutions of the
General Assembly may constitute state practice; they may originate state practice; corroborate
customary law; and they may supply opinio juris in some cases.
40

As has been mentioned, earlier the transition from custom to law was fundamentally
inductive; the approach now has evolved into a deductive one.
41
Rules, declarations, for instance, by
the General Assembly, and the surrounding ritual itself, are taken as the genesis for the possible
development of customary law in the event that state practice ultimately happens to lock on these
proclamations, as well as a law making process which is self-sufficient and complete in itself; even in
the face of contrasting ‘external’ facts.
42
The dominance of retrospection has taken a back seat here,
whereas, immediacy and urgent necessity, in the form of lawful consent of the state (opinio juris), has
come to the fore.
Turning from United Nations to academic circles, Lung-Chu Chen, an internationally
recognised scholar and professor of international law at New York Law School
43
, in his evaluation of
the new Restatement's provisions on the protection of persons, considers quite categorically that the
Universal Declaration's “frequent invocation and application by officials, at all levels of government
and in many communities around the world” have conferred on it “those expectations characteristic
of customary international law”.
44

Therefore, putting forth the concept jurisprudentially in present times, we can surmise that
Instant Customary International Law is a system of enforceable, binding and sanctionable source of
law, branching out of the most legally compelling source in the International arena i.e. Customary
Law. This system of Instant Custom revamps the concept of customary law by focusing and re-

declaration, otherwise it ceases to carry a binding effect and becomes a dismissive document. An example of this
would be Space Law during the 1960’s. Absence of USA and USSR in any multi-lateral treaty or resolution with
respect to Air or Space Law would not be considered to have a binding or directive effect simply because of the pre-
potency of these two countries in practically every aspect in the areas of Air and Space Law.
39
O.Y. ASAMOAH, THE LEGAL SIGNIFICANCE OF THE DECLARATION OF THE GENERAL ASSEMBLY OF THE UNITED
NATIONS, (The Hague: Martinus Nijhoff Publishers, 1966).
40
There are at least two other possible grounds on which it might be claimed that United Nations resolutions and
declarations are “lawmaking”, namely as authoritative interpretation of the charter (Asamoah, op. cit.) and as
statements of “general principles of law” as in Article 38(i)(c) of the I.C.J. Statute.
41
Simma and Phillip, supra note 26.
42
Id.
43
Professor Lung-Chu Chen, J.S.D (Yale), L.L.M (Northwestern). Professor Chen is an authority on International Law,
Humanitarian Law and U.S. Constitutional Law. He has been the former advisor to the President of Taiwan.
44
L.C. Chen, Restatement: Protection of Persons, 14 Yale JIL 546-547 (1989); See also, MCDOUGAL, LASSWELL & CHEN,
HUMAN RIGHTS AND WORLD PUBLIC ORDER, 273-274, 325-327 (Yale University Press, 1980). For a recent Soviet
voice to this effect see V.E. Kartashkin, The Universal Declaration and Human Rights in the Contemporary World, 39 Soviet
YBIL (1988).
94
iterating on the importance of the subjective aspect of opinio juris and sidelining the objective element
of prolonged state practice over many years for its tardiness. The legal validity that it derives is from
the active or passive consent of the states. Therefore, once a state ratifies or acts upon its agreed
part, it ‘instantly’ acquires the character of a custom as it re-enforces the psychology of the state that
it has put into practice.

III. CONTEMPORANEITY OF INSTANT CUSTOMARY LAW
A. UNDERSTANDING THE LEGAL EFFECT OF RESOLUTIONS
To deal with a range of internationally relevant subjects ranging from environment to
terrorism, states have frequently engaged in multi-lateral treaties and protocols and resorted to UN
Declarations. Additionally, the growing prominence of International Customary Law can be
understood from its application in the field of International Humanitarian Law. In this context,
especially in light of the international proceedings in the past one and a half decades, a discussion on
the Bush Doctrine becomes vital.
The Bush Doctrine was adopted in response to the terrorist attacks of 9/11. It became an
instant custom within weeks as states began acting in accordance with the rule first articulated by
President Bush, in his address to the nation on 11
th
September 2001 and subsequently by the U.N.
General Assembly and the Security Council, on 12
th
September 2001, which were unanimously
adopted.
45
These two instances provided the required articulation of the opinio juris of the states in
following the rule and abiding by the resolution. The states further complied with the procedures
and activities of the US administration, thus putting their intent into practice and binding themselves
as they normally would in case of a custom. This immediate compliance further underlines the legal
intent of the states in carrying out the action and reduces the need to carry out the action repetitively
over a prolonged period for the custom to have some force. Importantly, such compliance and
actions at an international stage are taken to be as requisite state actions by which a state can be held
bound.
46
An example of this is Britain’s active participation in the military operations undertaken by
the US administration in Afghanistan, weeks after the resolution and the doctrine.
47

The terrorist attacks of 11
th
September 2001 acted as a springboard for the creation of many
international agreements on counter-terrorism. A number of laws were formulated and multilateral
treaties and U.N. resolutions were either expressly or tacitly adopted by the nation states on various sub-
issues ranging from suppression of nuclear terrorism
48
, implementation of anti-terrorist conventions
49
,
and condemnation of terrorist activities.
50
Such rapid and progressive development of binding

45
Id.
46
A. PELLET, Article 38, in ZIMMERMAN, OELLERS-FRAHM & CHOUMUSCHAT, THE INTERNATIONAL COURT OF JUSTICE
- A COMMENTARY 751 (London: Oxford University Press, 2006); See also, Congo v. Belgium. [2002] ICJ Rep. 3, 23-24.
47
Blair is the ‘USA’s Best Secretary of State’, BBC Worldwide Monitoring, (Oct. 16, 2001), available at LEXIS, News Group
File.
48
International Convention for the Suppression of Acts of Nuclear Terrorism New York, April 13, 2005.
49
1373 U.N. SCOR, (4385th mtg.), U.N. Doc. S/RES/1373 (2001).
50
1368 U.N. SCOR, (4370th mtg.) U.N. Doc. S/RES/1368 (2001).
95
international rules, which in this case were, originally established by one state and subsequently accepted
and adopted by other countries, is a classic example of Customary Law going instant and crossing the
barrier of time and tradition.
To delve a little deeper into the legal implications and repercussions of the states’ adoption of
international resolutions, it is important to iterate here the theory put forth by Marko Divac Öberg to
assess the legal effects of resolutions and treaties. Under this theory, there are three basic types of legal
effects.
51
A resolution may have the legal effect of (i) creating obligations, rights and/or powers (which
we shall call ‘substantive effects’)
52
and/or (ii) making determinations
53
of facts (e.g. that an alleged fact is
true) or legal situations (e.g. that an obligation was violated), which trigger the substantive effects
(‘causative effect’). To this is added (iii) how and when the substantive effects operate (‘modal effects’).
54

Sometimes, there only exists a mirage in the name of legal effects. This is the case when a
resolution simply restates an obligation, a right or a power that already exists.
55
Declarations in principle
only interpret or restate the law and have no legal effect; and a resolution which merely interprets the
Charter does not, in theory, have any legal effect of its own.
56
To the extent that a resolution details and
substantially adds to the Charter, any ensuing legal effect does not come from the resolution of a given
organ per se but from the fact that it may be considered generally acceptable by UN Members.
57
This
acceptance of the resolution in letter and spirit is the opinio juris of states. In the event of deficiency of
legal effects, the same can be obliterated if there is a strong and substantiated psychological ‘intent’
present in the states accompanied or followed by an act which is in accordance with their intent.
58
The
vigorousness of the intent is more often than not ‘automatically’ developed or already present when
times of urgency prevail.
59
Thus as an example, any state which supports a state having an interest
contrary to that of the general international community and/or the supra-national bodies such as United
Nations, whether directly or indirectly through the use of media, political statements, similar resources
etc., is said to be bound by an instant custom and can be considered to oppose the general international
considerations even though such support or practice might have been for a very short period of time.

While celebrating the boons of Instant Customary Law, it must also be kept in mind that it is
severely criticised for not having as staunch a binding force as the traditional customary law. Though it
hasn’t been expressly over-ruled by the international fraternity, it also doesn’t command wide-spread

51
D. Divac Öberg, The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ
16 EUR. J. OF INT’L. L. 881, 879-906 (2006). The word effect simply means consequence. The legal effect should be
distinguished from any moral, political, or other effects which do not fall within the scope of this article.
52
Combacau, ‘L’écoulement du temps’ Sociétéfrançaisein pour le droit international, 77 LE DROIT INTERNATIONAL ET LE TEMPS,
¶ 21–22, 98–100 (2011).
53
Öberg, supra note 55.
54
Id.
55
Id.
56
Id.
57
Report of Committee IV/2 of the UNCIO, San Francisco, 12 June 1945, UNCIO Doc 933, IV/2/42(2), at 7; 13
UNCIO Docs 709, at 709–710.
58
Cheng, supra note 25; Sohn, supra note 38; See also, D’Amato, supra note 16.
59
Bush Doctrine in itself is an example of it; Grotian Moment can be an example of it. The term Grotian moment
signifies a legal development that is so significant that it can create new customary international law or radically
transform the interpretation of treaty-based law. Grotian Moment - The International War Crimes Trial Blog, School of Law,
Case Western Reserve University, (July 29, 2012) available at http://law.case.edu/grotian-moment-blog/
96
and uniform concurrence. However, keeping in mind that it is still an emerging concept of international
law, what is sought to be propounded in this article is that nation states are gradually showing a
willingness to consider this as an alternate method of source establishment in modern times of rapid
reaction.

B. TAKING LIBYA AS A CONTEMPORARY CASE STUDY

Applying Instant Customary Law in the case of Libya which was subjected to large scale
international intervention during its civil war, we can say that NATO’s alignment with the Benghazi
rebels (and National Transition Council) was illegal
60
, inter alia, according to the seminal case of
Nicaragua v. United States of America.
61
In this case, the ICJ held that the ‘United States of America, by
training, arming, equipping, financing and supplying the contra forces or otherwise encouraging,
supporting and aiding military and paramilitary activities in and against Nicaragua, has acted against
the Republic of Nicaragua in breach of its obligation under customary international law not to
intervene in the affairs of another State’.
62
Further, general intervention is proscribed both by Article
2(7) of the UN Charter and provisions of the 1970 Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation between States, both of which NATO states are
party to.
63
But an accommodating exceptional view was also mentioned in the same case with the
ICJ stipulating that ‘reliance by a state on a novel right or an unprecedented exception to the
principle [such as humanitarian intervention] might, if shared in principle by other states, tend
towards a modification of customary international law’.
64
The resolution which allowed this
alignment (S/RES/1976) was not vetoed and was entertained by the BRIC Group and Germany
with acquiescence. In the context of international law, neutrality of this nature is interpreted as a
passive form of consent.
65
The ICJ had further proclaimed that if states in coalition develop a legal
intent and act upon it, then, to go against the norms of non-intervention could be taken as an
exception and a new rule in itself. This can be argued to be an Instant Customary Law formation, a
development of legitimate expectation by the international community over a short period of time.
Such intervention with states acceding to it can be said to be customary law in itself, developed out

60
R. Pelekanos, Customary International Law and the Scramble For Libya (Dec 16, 2011), available at
http://crisisproject.org/customary-international-law-and-the-scramble-for-libya.
61
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America) [1984] I.C.J.
Reports 392.
62
The principle of non-intervention is also supported by UNSC Resolution 2131 (XX) 1965, containing the Declaration
on the Inadmissibility of Intervention in the Domestic Affairs of States and augmented by Resolutions 31/91 of 14
December 1976, 32/153 of 19 December 1977, 33/74 of 15 December 1978, 34/101 of 14 December 1979 and
35/159 of 12 December 1980 on non-interference in the internal affairs of states.
63
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States of America), [1984] I.C.J.
Reports.
64
Id.
65
See generally Shaw, supra note 1, at 80-82.
97
of the ‘Right to Protect’
66
mechanism and giving scope for states in general to act along these lines in
similar cases as that of Libya here.
Therefore, this can be taken as a very relevant contemporary case of the reinforced
recognition of the jurisprudence which Instant Customary International Law espouses and also a
case highlighting the need for the international community to adapt to this new method of custom
formation which binds states. A word of caution however must be added here. It is neither argued,
nor should the ICJ judgment be interpreted to mean, that any and every legal intent rapidly formed
under exceptional circumstances would set a correct precedent. Especially in light of developments
as they unfolded in Libya, after NATO’s interventions, an instantly formed opinio juris may not
ultimately develop as a custom if the action taken on its behest cannot stand legal scrutiny or is
immoral or unethical.

C. EMERGENCE AND ADMISSIBILITY OF SOCIAL MEDIA AS ‘INSTANT’
CUSTOM
The increasing access to the internet has given rise to a culture where the public not only
acts as a consumer but also acts as a contributor or producer.
67
It leads to the formation of a
participatory environment whose main components are civic engagement and creative expression. In
a nutshell, “Young people creatively respond to a plethora of electronic signals and cultural
commodities in ways that surprise their makers, finding meanings and identities never meant to be
there and defying simple nostrums that bewail the manipulation or passivity of ‘consumers’.”
68

Social media has become an evidentiary gold mine and has been recognised as a valid form
of evidence in a plethora of cases relating to privacy, contract, trademarks, copyright issues
69
, etc.
Recently, the electronic social media has been considered as strong evidence particularly in relation
to highlighting the psychology of a state through its state actors. Evidentiary sources existing in the
form of social media can also be termed as ‘Instant Customary Law’ which may be understood as
valid rules which develop without undergoing a long period of gestation. International Humanitarian
Law
70
, which is a prime benefactor of the jurisprudence emerging out of Instant Customary

66
R2P – Right to protect mechanism was introduced by the 2005 World Summit and that formed the normative
framework of S/RES/1976 that authorised NATO’s intervention in the Maghreb.
67
JENKINS, CONFRONTING THE CHALLENGES OF PARTICIPATORY CULTURE: MEDIA EDUCATION FOR THE 21ST
CENTURY, (The MIT Press, 2009).
68
P. Willis, Foot Soldiers of Modernity: The Dialectics of Cultural Consumption and the 21st-Century School, 73 HARVARD EDUCA.
REV. 390-415 (2003).
69
The enactment of Digital Millennium Copyright Act (DMCA) and DMCA Title II, the Online Copyright
Infringement Liability Act (OCILLA) and the efforts made by the Congress in USA for passing the Stop Online
Piracy Act (SOPA) in the House and its Senate companion bill, the Protect IP Act (PIPA) go a long way in
strengthening the opinio juris of the states for the evidentiary value of Social Media.
70
International humanitarian law is a set of rules which seek to limit the effects of armed conflict because of
humanitarian reasons. International humanitarian law is also known as the law of war or the law of armed conflict.
What is International Humanitarian Law? ICRC (July, 2004) available at http://www.icrc.org/eng/assets/files/other/what
_is_ihl.pdf [Last Accessed on 10 March 2014].
98
International Law, has been actively using electronic social media and e-evidences as evidences in
the court.
The recognition by the international community of social media as a valid source of evidence
can be seen in the light of numerous international cases where social media was accepted as
evidence. However, lack of authoritative literature on this topic proves to be an impediment in
understanding this particular application of Instant Customary Law.
Social Media, by providing ‘on ground’ witness accounts, reduces the dependence on
traditional sources such as testimonies. It has also expanded access to information. The role of social
media in Arab Spring is well known.
71
It has expanded access to evidence of human rights abuses
beyond mainstream evidences. “Technology has allowed us to see into many parts of the world that
were previously shrouded by oppressive governments or geographical boundaries.”
72
In fact, digital
technologies and mobile devices have become the primary sources of documentation. They have
also helped in revolutionising political conflict and documenting it.
For the purpose of admissibility, electronic evidence falls under the category of
‘documentary evidence, defined by tribunals as anything in which information of any kind has been
recorded.
73
The opinio juris, for accepting admissibility of evidence emanating from social media, can
thus be found in the various pieces of legislations enacted by countries around the world. The rules
pertaining to litigation in England and Wales namely the Civil Procedure Rules include social media
within the broad definition of ‘documents’ thereby meaning that electronic documents which
include instant messages and content from social networking sites are covered within this definition.
In India, evidentiary value of electronic records which includes social media in its ambit is discussed
widely under Section 65A and Section 65B
74
of the Indian Evidence Act, 1872. In a recent Quebec
court’s decision, the Commission des Lesions Professionnelle has held that posts from the social
networking site Facebook are admissible in evidence, based in part on its finding that all Facebook
content is in the public domain.
75
Thus not only a majority of the countries but even international
courts and tribunals have recognised social media as a valid source of evidence.
The evidentiary value of social media can be appreciated the most in the cases of human
rights violations. Social Media has been frequently used to establish the grounds for persecution
indictments and to provide a basis for an international investigation. International NGOs like
Human Rights Watch and WITNESS have been collecting photos and videos of state-sponsored

71
D. Tapscott, Social Media Can Help Build Governments Too, Huffington Post, May 23, 2011.
72
B. Cole, The Web as a Spotlight: An Alternative Look at Technology in the Arab Spring, Huffington Post, (Apr. 8, 2011),
available at http://www.huffingtonpost.com/ben-cole/the-web-asa-spotlight-an_b_850679.html
73
Prosecutor v. Karemera, Ngirumpatse and Nzirorera, Decision on the Prosecutor’s Motion for Admission of Certain
Exhibits into Evidence, Case No. ICTR-98-44-T, (25 Jan 2008) ¶ 5; The Prosecutor v. Alfred Musema, Judgment and
Sentence, Case No. ICTR-96-13-T, (27 January 2000) ¶ 53; See also O’NEILL, ET AL., RAPOPORT CENTRE FOR HUMAN
RIGHTS AND JUSTICE, NEW WINE IN OLD WINESKINS? NEW PROBLEMS IN THE USE OF ELECTRONIC EVIDENCE IN
HUMAN RIGHTS INVESTIGATIONS AND PROSECUTIONS (2011).
74
65A: Special provisions as to evidence relating to electronic record; 65B: The contents of electronic records may be
proved in accordance with the provisions of this section.
75
See generally Legal Update, Employment and Labour, Occupational health and safety and workers’ compensation, (August 2011)
http://www.nortonrosefulbright.com/files/facebook-content-is-held-to-be-admissible-in-evidence-pdf-83kb-
55617.pdf ; R. Hudon, C. Tremblay, N. Aubin March 2009. C.L.P. 412395-62C-1006, 2011 Q CCLP 1802.
99
violence from all over the world. Information created and disseminated via web based technologies
(social media) form a considerable part of their evidence. These evidences, though, might only be
having persuasive and influential value at present but their increasing recognition as potent evidence
cannot be ignored.
A famous example of use of electronic evidence is the case of admissibility of Nick Hughes’s
video footage in the infamous Rwandan genocide case. In this case, in 1998, Hughes, a British
Reporter shot a video of the murder of a father and his daughter and other victims. This footage was
admitted as “Exhibit 467” in the trial of George Rutaganda before International Criminal Tribunal
for Rwanda who was convicted and sent to Prison in 1998.
76

Photographs have also been used to document human rights abuses since long time.
Foremost examples of photographs being taken into documentary account are the photographs of
atrocities of the Opium Wars in China, and the famous photograph of Kim Phuc, the Vietnamese
child running.
77
In the Milutinovic Trial at the International Criminal Tribunal for Yugoslavia
(ICTY), the Chamber had admitted the Prosecutor’s submission of footage from the BBC and CNN
after considerable perusal of their authenticity.
78
Text messages have also been considered as valid
evidence sometimes.
79

Another landmark development in such case is the formation of the platform called Wiki
Leaks. This ‘whistleblower site’ posted original classified documents of the government,
organisations and corporations online. This also included secret military documents of Afghanistan
wars and Iraq wars which were certainly an eye opener for the whole world. The US Government
reacted swiftly and sharply to such disclosure which can be seen from the following statement made
by Richard Hass, President of Council on Foreign Relations, United States of America that,
“Foreign governments may think twice before sharing their secrets or even their candid judgments
with American counterparts lest they read about them on the Internet; resulting reticence will deprive
policymakers of an important source of information and make decision making more ad hoc and less
systematic than it needs to be.”
80
Such reaction by USA initiated a chain of events which saw country
heads reacting sharply and countries working upon their cyber and whistleblower laws.
81
It can thus
be inferred that an unspoken and instant custom developed among the nation states to condemn
such acts and to send out a strong deterrence message by collectively taking a stand against such
disclosure.

76
N. HUGHES, Exhibit 467: Genocide Through a Camera Lens, THE MEDIA AND THE RWANDA GENOCIDE (2007).
77
S. Saywell, Kim's Story, The Road from Vietnam, Canadian Centres for Teaching Peace available at
http://www.peace.ca/kimstory.htm [Last Accessed on 27 July 2013].
78
Prosecutor v. Milutinovic et al., Decision on Prosecution Motion to Admit Documentary Evidence, Case No. IT-05-
-87-PT, (10 October 2010).
79
Neal Ungerleider, Violence and Death in Africa, 160 Characters at a Time, Fastcompany, (October 5, 2010) available at
http://www.fastcompany.com/1693190/nigeria-sms-text-message-riot
80
R.N. Hass, How to Read WikiLeaks, (Nov 29, 2010) available at http://www.cfr.org/diplomacy-and-statecraft/read-
wikileaks/p23500?cid=rss-fullfeed-how_to_read_wikileaks-112910 [Last Accesse on 5 April 2014].
81
Gillard Condemns Wikileaks, The Sydney Morning Herald, Dec 2, 2010. Black, Sherwood & Kamali, WikiLeaks claims are
'psychological warfare' says Ahmadinejad, The Guardian, Nov 29, 2010.
100
The most noticeable recognition of electronic media, which impliedly includes social media,
is from the United Nations itself.
82
When it comes to digital evidence, the principle of Chain of
Custody is put to use. This principle is used in determining admissibility of digital evidence taking into
account the fact that digital evidence can be changed/tampered with.
83
‘Chain of custody’ refers to
the “chronological and careful documentation of evidence to establish its connection to an alleged
crime or incident”.
84
From the beginning to the end of the process, it is necessary to be able to
demonstrate every single step undertaken to ensure ‘traceability’ and ‘continuity’ of the evidence
from the incident to the courtroom.
85
In this determination, the principle of chain of custody is
applied to digital evidence in the same manner as it is applied to physical-documentary evidence,
thereby providing scope for its admissibility. Considering the fact that this sort of admissibility is
recognised by the United Nations and no country has expressly opposed this admissibility, implies
the opinio juris of all the states to be actively and willingly bound by the United Nations resolutions
and conduct.
This admissibility proved to be sufficiently useful in Muhammar Gaddafi’s murder case.
86
In
October 2011, cell phone videos surfaced depicting Muhammar Gaddafi’s death. These videos raised
suspicions of war crimes following which the International Criminal Court (ICC) Prosecutor
proceeded with the prosecution and investigation. These videos were used as corroborative evidence
by the ICC prosecutor to scrutinise whether Gadaffi’s death was a war crime.
87
The admissibility of
such evidence led to the proof of gross International Humanitarian Law violations, putting liability
on the state actors responsible for it. No time could be lost in proving first that such videos can be
admitted as evidence because it would run the risk of counter-actions by the state. The Instant
Customary Law which had developed in favour of its admissibility, and which Libya had become a
party to by not objecting to such practice being followed by other countries and by UN, became
binding on Libya. Such instances are strengthening the belief in admissibility of social media as
evidence. As a result, there are many organisations today that are active in collecting electronic
evidence and digital news and incident reports.
88

It is quite clear that a customary law is established when it influences state conduct because
of its legal nature.
89
One of the most qualified commentators on the jurisprudence of international
law, Sir Hersch Lauterpacht opines that all uniform conduct of Governments (or, abstention there

82
See, UNITED NATIONS OFFICE ON DRUGS AND CRIME (UNODC), CRIME SCENE AND PHYSICAL EVIDENCE
AWARENESS FOR NON FORENSIC PERSONNEL (New York, 2009).
83
Lucy L. Thomson, Admissibility of Electronic Documentation as Evidence in U.S. Courts, Centre For Research Libraries,
Human Rights Evidence Study, (December 1, 2009), available at http://www.crl.edu/sites/default/files/attachments/
pages/Thomson-E-evidence-report.pdf
84
Id.
85
Id.
86
The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi [2012]. ICC- 01/11-01/11.
87
Sheridan, Groups seek probe of Gaddafi’s death, The Washington Post, October 22, 2011.
88
International NGOs like Human Rights Watch and WITNESS are some of the examples of such organisations. A
famous organisation of Mexico called Canalseisdejulio (Canal 6) is active in collecting alternative information outside
the influence of state-sponsored media and large private houses.
89
See generally JACK L. GOLDSMITH & ERIC A. POSNER, THE LIMITS OF INTERNATIONAL LAW 3 (2005). (Based on the
reasoning that international law evolves as a result of states acting rationally to maximise their interests, according to
the distribution of state power, and the perceptions of other states’ interest).
101
from) should be regarded as evidence of the opinio necessitates juris except when it is shown that
conduct in question was not accompanied by any such intention.
90
The general recognition test
regarding customary law could be found in West Rand Central Gold Mining Company Ltd. V. The King
91

wherein the court ruled that a valid international custom should be proved by satisfactory evidence
that the custom is of such a nature that it has received general consent of the states and no civilised
states shall oppose it. The above quoted illustrations prove to a certain extent that the admissibility,
acceptability and recognition of social media as valid evidence in the international arena can be
termed as a form of Instant Customary Law.
The discussion in the North Sea Continental Shelf Cases
92
is consistent with this inductive
reasoning, “Some states have at first probably accepted the rules in question, as states usually do,
because they found them convenient and useful, the best possible solution for the problems
involved. Others may also have been convinced that the instrument elaborated was to become and
would in due course become general law. Many states have followed suit under the conviction that it
was law.” In other words, the quiet or otherwise acceptance of a rule by state should be seen as a
milestone in the establishment of that rule as a generally accepted law.
IV. CONCLUSION
We conclude by remarking that the growth of law is imperative with the evolution of society.
Similar is the case with International Law with respect to customary formation of law and
international relations. Codification is a universally progressive step in the path of law and Instant
Customary Law vouches for something similar. Instant Customary Law warrants that a gestation
period is not necessary for the formation of customary rules and aims to remove the arbitrariness
emerging out of it by focusing on the systemised aspect of sources of International Law i.e. treaties
and resolutions. In light of the various new age global phenomenon which have emerged in the past
couple of decades instantaneous action is the need of the hour, not only because time is of utmost
consideration but systemised action is desirable and serves a constructive purpose. This
systemisation is in contrast to the uncertainties prevailing in traditional customary law due to the
long gestation period and no settled mechanism to discern the legal intent out of state practice or
settle upon a specified time period for a state practice. A definite time period is also not plausible
because of differing facts, circumstances and municipal laws or customs.
93
Therefore Instant
Customary Law by relying on just one decisive element limits these uncertainties, making it more
determinable and systemised. International Law is becoming increasingly and intrinsically dynamic in
its approach. With the United Nations gradually increasing its stronghold over global affairs over
time, establishing its authority as a supra-national body, and states striving for express recognition of
formal legal intent along with state practice, Instant Customary International Law tries to bridge this
gap between customary recognition of a state’s legal intent and minimal state practice. Though

90
H. LAUTERPACHT, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT, (Cambridge
University Press, 2003). See also the dissenting opinion of Judge Lachs in North Sea Continental Shelf Cases; Federal
Republic of Germany v. Denmark and The Netherlands [1969] I.C.J Reports 3. and D’Amato, Supra note 16.
91
West Rand Central Gold Mining Company v. The King, 2 K.B. 291[1905].
92
ICJ Reports, 1986 at 98; 76 ILR at 432.
93
Supra note. 1 at 76.
102
semantically, it comes across as a paradoxical term in itself but it is not contradictory semantics
which we should be worried about. Instantaneous recognition of state practice as customs is
becoming increasingly prevalent and can be easily touted as the way forward.
The Bush Doctrine, legal effect of UN resolutions and treaties, the Arab Spring in context of
Libya and the emerging admissibility and evidentiary value of digital-social media in custom
formation were some of the various incidents to fathom the depth and reach of the practicability of
Instant Customary International Law. It should not be understood as an opposition to the
Customary Source of International Law, but rather as Customary Law re-equipped to be able to
discern and explain the contemporary global phenomenon which could not have been predicted
while the traditional view of Customary International Law had installed itself back in the 1940’s and
1950’s. It proves to be an efficient rule to bind states, which otherwise wouldn’t have been bound,
and questions the states of their practice, while being an equally efficient tool of understanding
International State actions from a customary perspective. It would, without an iota of incertitude,
prove to be a prominent source of international law and a much-discussed aspect of customary law
in future, with all its uncertainties and unenforceability resolved.

103
A CRITICAL OVERVIEW OF THE ASSISTED REPRODUCTIVE
TECHNOLOGIES (REGULATION) BILL, 2010
Sriparna Dutta Choudhury
*

The practice of surrogacy today contemplates the use of assisted reproductive technology, which makes it
possible for couples who are unable to conceive children, to use their own gametes to create their own unique embryos
and for these embryos to be transferred to a surrogate.
1
However, like most other developments in reproductive biology,
the public perception of surrogacy vacillates between two extremes: pro-family action on one hand and commodification
of women as breeder machines on the other. Contributing to this polarisation of opinion is the growing popularity of
India as a preferred destination for surrogacy on account of its lack of well-defined laws on the subject. Therefore,
there is an urgent need to establish a legal structure to regulate the burgeoning surrogacy industry in India and address
the ethical, sociological and economic concerns associated with it. The Assisted Reproductive Technologies (Regulation)
Bill, 2010, currently pending in Parliament, aims to achieve the abovementioned goals. However, there exists much
scope for improvement on various key parameters. This paper attempts to identify and address the shortfalls and
omissions in the Bill and suggests policy recommendations for protection of rights, particularly those of the surrogate
mother.
I. INTRODUCTION
In Indian society, the institution of marriage is sacrosanct and plays a pivotal role in the
continuation of lineage. The ability to produce children or procreation is generally considered by
society to be one of the fundamental concomitants of marriage. The hurdle arises when a couple is
unable to procreate through conventional biological means. However, due to advancements in
medical science, infertility is not an ineradicable hurdle or a reason to remain distant from
experiencing parenthood any more. In this regard, it is surrogacy which embraces these striving
parents with hope.
Surrogacy is commercial or altruistic depending on whether the surrogate receives financial
remuneration/compensation for her assistance or not. Commercial Surrogacy is a form of
surrogacy in which a gestational carrier is paid to carry a child to maturity in her womb and is usually
resorted to by well to do infertile couples who can afford the cost involved.
2
Altruistic surrogacy, on
the other hand, is the kind wherein there is no involvement of money as a consideration for the
surrogate. The surrogate carries the child of a couple purely on the basis of love and affection.
Today, there is prolific growth in reproductive tourism and especially, commercial surrogacy.
This proliferating nature of commercial surrogacy led the Apex Court of India to observe in Baby

*
II
nd
year, L.L. B., Campus Law Centre, Faculty of Law, University of Delhi.
1
Peter R. Brinsden, Gestational Surrogacy, HUMAN REPRODUCTION UPDATE, Vol. 9, No. 5, 483-491 (2003) available at
http://humupd.oxfordjournals.org/content/9/5/483.full.pdf?origin=publication_detail.
2
Baby Manji Yamada v. Union of India & Another, AIR 2009 SC 84.
104
Manji Yamada v. Union of India and Another
3
, that commercial surrogacy is reaching “industry
proportions”. The Court declared commercial surrogacy and surrogacy contracts as legal. The Court
stated that, “Surrogacy is a well known method of reproduction whereby a woman agrees to
become pregnant for the purpose of gestating and giving birth to a child she will not raise but hand
over to a contracted party”.
4

India has emerged as a favoured surrogacy destination primarily for two reasons – (i)
affordable high end medical facilities as compared to developed countries and (ii) absence of
governmental regulations.
5
At the present time, there is no law to govern surrogacy in India with the
Assisted Reproductive Technologies (Regulation) Bill, 2010 still pending in Parliament.
6

The Assisted Reproductive Technologies (Regulation) Bill (hereinafter referred to as the
“Bill”) was introduced by the Ministry of Health and Family Welfare in 2010 to codify the use of
artificial reproductive technologies in the wake of legal, ethical, commercial, and technological
challenges that existed within India’s reproductive advancement domain.
Chapter 1 of the Bill captioned ‘Definitions’ gave expression to the Baby Manji judgment
through section 2(aa) which defines surrogacy as “an arrangement in which a woman agrees to a
pregnancy, achieved through assisted reproductive technology, in which neither of the gametes
belong to her or her husband, with the intention to carry it and hand over the child to the person or
persons for whom she is acting as a surrogate”. Using this as the starting point, the following section
will examine the flaws in the Bill. It will attempt to address the implications the Bill has on the rights
and duties of the parties involved, the health of the surrogate, questions of bodily autonomy and its
client centric tendency.
II. INHERENT LOOPHOLES IN THE BILL
A. RIGHTS AND DUTIES
Integral to and in connection with the definition clause are the rights and duties of the
parties involved in relation to surrogacy. Section 34 of the Bill under Chapter VII discusses rights
and duties of patients, donors, surrogates and children. Clause (13) of section 34 states “a surrogate
mother shall not act as an oocyte donor for the couple or individual, as the case may be, seeking
surrogacy”. It essentially signifies that the surrogate cannot act as the biological mother of the child.
This in turn implies that most surrogacy arrangements would take place with a woman who would
definitely have to relinquish the child. Since the surrogate would have no choice in the matter of
relinquishment, the ‘only-surrogate and not-donor’ specification underpins the acceptance of
commercial surrogacy.
However, section 34(18) is an exception, which makes room for a relative of the
commissioning parents to serve as the surrogate mother, and thus extends its purview to include

3
AIR 2009 SC 84, ¶ 9.
4
Id at ¶ 5.
5
India’s Surrogate Mother Business Raises Questions of Global Ethics, The Associated Press, Dec 30, 2007.
6
Ghulam Nabi Azad, Surrogacy Bill in the Offing, Indian Express, Apr 11, 2013.
105
altruistic surrogacy. It states that a person, known or unknown to the couple, can act as a surrogate
provided that in case of a relative acting as surrogate, she should belong to the same generation as
the women desiring the surrogate. The issue arises in ascertaining if at all there is a departure from
the usual course of procedure in case of a relative volunteering as a surrogate. The Bill fails to
mention the terms and conditions of such agreement and if at all; the participation of a relative as a
surrogate is subject to the same regulation as that of commercial gestational surrogacy. Hence it
leaves these aspects to the whims and fancies of the commissioning parents.
B. HEALTH
Section 34(5) of the Bill states “…no woman shall act as a surrogate for more than five
successful live births in her life, including her own children”. This provision is rendered inadequate
by the insertion of the word “live”. This word overlooks a critical aspect to the surrogate’s health i.e.,
the number of permitted cycles she can undergo. The number of live births is not equivalent to the
number of ART cycles the surrogate undergoes, as the success rate of the procedure is low. Thus, in
order to effectually ensure that this commercialisation of manufacturing another’s offspring doesn’t
lead to exploitation of the surrogate’s health, the maximum number of ART cycles permitted ought
to have been specified in the Bill.
The Bill leaves out yet another important aspect i.e., breastfeeding. Breastfeeding carries
tremendous health benefits both for the child and the mother. A study conducted by the World
Health Organisation shows that babies who are fed breast milk have a lower risk of gastro-intestinal
illness, allergies, diabetes, chest infections, SIDs (cot death). It is argued that a woman’s right to
breastfeed her child is a human right apart from the obvious and immense health benefits. It assists
the uterus to return to its pre-pregnant state faster and reduces the risk of ovarian cancer,
osteoporosis, and gestational diabetes and also helps to lose weight after child-birth. The Bill fails to
mention the period for which the new born is to be kept with the surrogate if any health related
complication of the baby arises.
The Bill also suffers from the omission of a provision for counselling of the surrogate in
case of any trauma or medical complication post delivery. A study conducted by Canadian Mental
Health Association brings into light that post-partum depression is one such complication that is
experienced by almost 20% of new mothers. Counselling services should be made available not only
for making it easier for a surrogate to part from the child but also to help cope up with separation
pangs after she has relinquished the child. Such needs must be taken care of by the intending
parents as psychological disorders are a part of the same mutually agreed transaction namely
pregnancy.
C. CLIENT CENTRIC
A combined reading of section 34(2) and 34(3) portrays the Bill to be favouring the client
more than the surrogate. Section 34(2) provides that all expenses related to a pregnancy achieved in
furtherance of assisted reproductive technology till the child is ready to be delivered as per medical
advice to the biological parents shall be borne by the couple or individual seeking surrogacy”.
106
Whereas section 34(3) states, “…the surrogate mother may also receive monetary compensation
from the couple or individual, as the case may be, for agreeing to act as such surrogate”.
The term “shall” has been employed in section 34(2), thus making it mandatory for the
intending couple to financially protect the surrogate during the full tenure of surrogacy. On the
other hand, the term employed in section 34(3) with respect to monetary compensation is “may be”
and ergo puts the encumbrance on the surrogate mother to claim it. This not only acts as a
stumbling block in case of enforcement of monetary compensation but also epitomises the policy
maker’s abdication of his primary role as the defender of the rights of the citizens in favour of his
secondary role as promoter of fertility tourism. It also raises a question on the benefit of having a
legislation that puts a surrogate in between altruism and commercial without clearly taking a stand.
Most surrogates come from the lower economic and social strata of the society with little
education and limited income earning opportunities. The cumulative effect of all these factors
makes poverty-stricken women in India prone to economic exploitation by agents working for
commissioning parents. In order to pre-empt them from such abuse and exploitation, a mandatory
provision of independent advocacy for the surrogates to represent their interests to both the clients
(commissioning parents) and the clinician should be endorsed in the Bill. Independent advocacy
would also be an effective remedy for contract negotiations and medical decision making on the part
of the surrogate. The current Bill fails to address any of these concerns and thus, undermines the
role of the surrogate.
The Bill in section 34(24) mentions that the commissioning parents shall ensure that the
surrogate mother and the child she delivers are “appropriately insured”. Insurance is indeed
indispensable but the insertion of the word ‘appropriate’ is not sufficiently lucid and thus leaves
scope for possible misuse of this provision which is detrimental to the interest of the surrogate.
Hence, the language of the Bill needs elaboration on the nature and extent of insurance that should
be provided.
D. BODILY AUTONOMY
The Bill in section 23(5) seizes the surrogate’s rights of bodily autonomy to choose her own
reproductive rights and places the power to decide in the hands of the commissioning parents. It
states “Where a multiple pregnancy occurs as a result of assisted reproductive technology, the
concerned assisted reproductive technology clinic shall inform the patient immediately of the
multiple pregnancy and its medical implications and may carry out foetal reduction after appropriate
counselling”. This section seems to be in conflict with the judgment given in Suchita Srivastava v.
Chandigarh Administration
7
, where it was held – “the woman’s right to make reproductive choices is
also a dimension of ‘personal liberty’ as understood under Article 21 of the Constitution of India.
Reproductive choices can be exercised to procreate as well as to abstain from procreating”. Further,

7
AIR 2010 SC 235.
107
in B.K. Parthasarthi v. Government of Andhra Pradesh
8
, the High Court upheld “the right of reproductive
autonomy” of an individual as a facet of his “right to privacy”.
The Committee on Ethics of the American College of Obstetricians and Gynaecologists
9

stated in the Committee Opinion “…multi-foetal pregnancies increase the risk of both maternal and
neonatal morbidity and mortality. Maternal risk of multi-foetal pregnancies includes hypertension,
preeclampsia, gestational diabetes and postpartum haemorrhage”. A woman’s right to control her
body far outweighs others’ right to have the kind and number of children they want and also such
maternal risk cannot be looked upon as an occupational hazard. Thus, the Bill has failed
considerably to protect the rights and welfare of those women who are the bedrock upon which the
assisted reproductive technology industry is built. All major decisions relating to the foetus as well as
the gestating mother, including necessary abortion during the full tenure of the pregnancy, should be
the sole discretion of the surrogate and not be subject to the wishes of the intending couple. Due to
fallacy in the language of the current Bill, the surrogate’s service shifts from the voluntarism of the
surrogate’s womb to the complete temporary rental of her body, thereby depriving the surrogate of
her fundamental reproductive rights.
In the domain of surrogacy, reproductive autonomy of the surrogate holds paramount
significance, the negation of which would tantamount to subjugation, oppression and exploitation
of the surrogate. Unfortunately, the western liberal feminist perspective of considering surrogacy as
an exercise of reproductive choice and economic autonomy doesn’t apply to Indian surrogates. The
existence of choice on part of these women is highly disputable owing to the socio economic
conditions which determine their choice. It is argued that their freedom of choice is often eclipsed
by poverty, low education levels, marginalisation in labour markets and patriarchal social and family
structure and hence, their freedom of choice is socially and economically constructed. Moreover, the
prevalence of the patrilineal descent
10
as well as patrilocal residence
11
, and the scourge of the dowry
system can make a woman vulnerable to forced surrogacy by a mother-in-law or husband
12
. In such
social conditions, there may exist a situation where the consent obtained from the surrogate may not
be consent in the true sense of the word. Though the provisions of the Indian Contract Act, 1872
may apply in such situations, the need for the Bill itself to provide for a consent mechanism to
examine if the consent obtained is true, bona fide, free and out of one’s own volition is essential and
cannot be ignored. Thus, legalising commercial gestational surrogacy as intended by the Bill without
mechanisms from within the Bill that protect the rights of the surrogate actively is likely to leave
much room for adverse interpretation and abuse.


8
AIR 2000 A.P.156.
9
American College of Obstetricians and Gynecologists, Multifetal Pregnancy Reduction, Committee Opinion No. 553, (Feb
2013), available at https://www.acog.org/Resources_And_Publications/Committee_Opinions/Committee_on_
Ethics/Multifetal_Pregnancy_Reduction.
10
Unilineal descent that follows the male line also known as ‘agnatic descent’.
11
The residence pattern in which a newly married couple moves in with or near the groom’s father’s house.
12
Aastha Sharma, Surrogacy: Law’s Labour Lost, The Hindu, July 25, 2010.
108
III. CONCLUSION
The Assisted Reproductive Technologies Bill intends to legalise commercial surrogacy.
However, the worldwide discourse on the ethical and moral facets seems to have been ignored. The
Bill also rejects the recommendations of the Law Commission in its 228th Report
13
, which is
incidentally titled, “Need for Legislation to Regulate Assisted Reproductive Technology Clinics As
well As Rights and Obligations of Parties to a Surrogacy”. The said Report had recommended
banning commercial surrogacy while accepting altruistic surrogacy in India. There exists a need to
redefine and restructure the Bill in order to balance the risks and benefits of surrogacy. On one
hand, while banning surrogacy completely on vague moral grounds would be futile, on the other
hand, legalising commercial surrogacy is also not free from questionable ends. Since surrogacy is a
complex concept, the law must be equally comprehensive in defending human liberty and facilitating
realisation of positive entitlements. Due to the involvement of commerce in most surrogacy
arrangements, the role of a surrogate is not only an extremely crucial one but it is also immensely
vulnerable to pressure and duress.
The entire burgeoning industry of surrogacy pivots around the surrogate and her womb.
Only when the Indian society enters the era of post-feminism where equal rights for women means
giving women the autonomy to choose for themselves, can commercial surrogacy be espoused in a
truly egalitarian manner.

13
LAW COMMISSION OF INDIA, NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY
CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY, NUMBER 228, (Aug 5, 2009) available
at http://lawcommissionofindia.nic.in/ reports/report228.pdf.